II 110th CONGRESS 1st Session S. 1463 IN THE SENATE OF THE UNITED STATES May 23, 2007 Mr. Pryor (for himself, Mr. Cochran, Mr. Craig, Mr. Roberts, Mr. Schumer, and Mr. Chambliss) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To authorize the Secretary of Homeland Security to regulate the sale of ammonium nitrate to prevent and deter the acquisition of ammonium nitrate by terrorists, and for other purposes.

1.

Short title

This Act may be cited as the Secure Handling of Ammonium Nitrate Act of 2007.

2.

Secure handling of ammonium nitrate

(a)

In general

Title VIII of the Homeland Security Act of 2002 (6 U.S.C. 361 et seq.) is amended by adding at the end the following: J

Secure Handling of Ammonium Nitrate

899A.

Definitions

In this subtitle: (1)

Ammonium nitrate

The term ammonium nitrate means— (A)solid ammonium nitrate that is chiefly the ammonium salt of nitric acid and contains not less than 33 percent nitrogen by weight; and (B)any mixture containing a percentage of ammonium nitrate that is equal to or greater than the percentage determined by the Secretary under section 899B(b). (2)

Ammonium nitrate facility

The term ammonium nitrate facility means any entity that produces, sells or otherwise transfers ownership of, or provides application services for ammonium nitrate. (3)

Ammonium nitrate purchaser

The term ammonium nitrate purchaser means any person who buys and takes possession of ammonium nitrate from an ammonium nitrate facility.

899B.

Regulation of the sale and transfer of ammonium nitrate

(a)

In general

The Secretary shall regulate the sale and transfer of ammonium nitrate by an ammonium nitrate facility in accordance with this subtitle to prevent the misappropriation or use of ammonium nitrate in an act of terrorism. (b)

Ammonium nitrate mixtures

Not later than 90 days after the date of the enactment of this subtitle, the Secretary, in consultation with the heads of appropriate Federal departments and agencies (including the Secretary of Agriculture), shall, after notice and an opportunity for comment, establish a threshold percentage for ammonium nitrate in a substance. (c)

Registration of owners of ammonium nitrate facilities

(1)

Registration

The Secretary shall establish a process by which any person that— (A)owns an ammonium nitrate facility is required to register with the Department; and (B)registers under subparagraph (A) is issued a registration number for purposes of this subtitle. (2)

Registration information

Any person applying to register under paragraph (1) shall submit to the Secretary— (A)the name, address, and telephone number of each ammonium nitrate facility owned by that person; (B)the name of the person designated by that person as the point of contact for each such facility, for purposes of this subtitle; and (C)such other information as the Secretary may determine is appropriate. (d)

Registration of ammonium nitrate purchasers

(1)

Registration

The Secretary shall establish a process by which any person that— (A)intends to be an ammonium nitrate purchaser is required to register with the Department; and (B)registers under subparagraph (A) is issued a registration number for purposes of this subtitle. (2)

Registration information

Any person applying to register under paragraph (1) as an ammonium nitrate purchaser shall submit to the Secretary— (A)the name, address, and telephone number of the applicant; and (B)the intended use of ammonium nitrate to be purchased by the applicant. (e)

Records

(1)

Maintenance of records

The owner of an ammonium nitrate facility shall— (A)maintain a record of each sale or transfer of ammonium nitrate, during the two-year period beginning on the date of that sale or transfer; and (B)include in such record the information described in paragraph (2). (2)

Specific information required

For each sale or transfer of ammonium nitrate, the owner of an ammonium nitrate facility shall— (A)record the name, address, telephone number, and registration number issued under subsection (c) or (d) of each person that takes possession of ammonium nitrate, in a manner prescribed by the Secretary; (B)if applicable, record the name, address, and telephone number of each individual who takes possession of the ammonium nitrate on behalf of the person described in subparagraph (A), at the point of sale; (C)record the date and quantity of ammonium nitrate sold or transferred; and (D)verify the identity of the persons described in subparagraphs (A) and (B), as applicable, in accordance with a procedure established by the Secretary. (3)

Protection of information

In maintaining records in accordance with paragraph (1), the owner of an ammonium nitrate facility shall take reasonable actions to ensure the protection of the information included in such records. (f)

Exemption for explosive purposes

The Secretary shall exempt from this subtitle a person producing, selling, or purchasing ammonium nitrate exclusively for use as an explosive material under a license issued under chapter 40 of title 18, United States Code. (g)

Consultation

In carrying out this section, the Secretary shall consult with the Secretary of Agriculture, States, and appropriate private sector entities, to ensure that the access of agricultural producers to ammonium nitrate is not unduly burdened. (h)

Data confidentiality

(1)

In general

Notwithstanding section 552 of title 5, United States Code, or the USA PATRIOT ACT (Public Law 107–56; 115 Stat. 272), and except as provided in paragraph (2), the Secretary may not disclose to any person any information obtained under this subtitle. (2)

Exception

The Secretary may disclose any information obtained by the Secretary under this subtitle to— (A)an officer or employee of the United States, or a person that has entered into a contract with the United States, who has a need to know the information to perform the duties of the officer, employee, or person; or (B)to a State agency under section 899D, under appropriate arrangements to ensure the protection of the information. (i)

Registration procedures and check of terrorist screening database

(1)

Registration procedures

(A)

Generally

The Secretary shall establish procedures to efficiently receive applications for registration numbers under this subtitle, conduct the checks required under paragraph (2), and promptly issue or deny a registration number. (B)

Initial six-month registration period

The Secretary shall take steps to maximize the number of registration applications that are submitted and processed during the six-month period described in section 899F(e). (2)

Check of terrorist screening database

(A)

Check required

The Secretary shall conduct a check of appropriate identifying information of any person seeking to register with the Department under subsection (c) or (d) against identifying information that appears in the terrorist screening database of the Department. (B)

Authority to deny registration number

If the identifying information of a person seeking to register with the Department under subsection (c) or (d) appears in the terrorist screening database of the Department, the Secretary may deny issuance of a registration number under this subtitle. (3)

Expedited review of applications

(A)

In general

Following the six-month period described in section 899F(e), the Secretary shall, to the extent practicable, issue or deny registration numbers under this subtitle not later than 72 hours after the time the Secretary receives a complete registration application, unless the Secretary determines, in the interest of national security, that additional time is necessary to review an application. (B)

Notice of application status

In all cases, the Secretary shall notify a person seeking to register with the Department under subsection (c) or (d) of the status of the application of that person not later than 72 hours after the time the Secretary receives a complete registration application. (4)

Expedited appeals process

(A)

Requirement

(i)

Appeals process

The Secretary shall establish an expedited appeals process for persons denied a registration number under this subtitle. (ii)

Time period for resolution

The Secretary shall, to the extent practicable, resolve appeals not later than 72 hours after receiving a complete request for appeal unless the Secretary determines, in the interest of national security, that additional time is necessary to resolve an appeal. (B)

Consultation

The Secretary, in developing the appeals process under subparagraph (A), shall consult with appropriate stakeholders. (C)

Guidance

The Secretary shall provide guidance regarding the procedures and information required for an appeal under subparagraph (A) to any person denied a registration number under this subtitle. (5)

Restrictions on use and maintenance of information

(A)

In general

Any information constituting grounds for denial of a registration number under this section shall be maintained confidentially by the Secretary and may be used only for making determinations under this section. (B)

Sharing of information

Notwithstanding any other provision of this subtitle, the Secretary may share any such information with Federal, State, local, and tribal law enforcement agencies, as appropriate. (6)

Registration information

(A)

Authority to require information

The Secretary may require a person applying for a registration number under this subtitle to submit such information as may be necessary to carry out the requirements of this section. (B)

Requirement to update information

The Secretary may require persons issued a registration under this subtitle to update registration information submitted to the Secretary under this subtitle, as appropriate. (7)

Re-checks against terrorist screening database

(A)

Re-checks

The Secretary shall, as appropriate, recheck persons provided a registration number pursuant to this subtitle against the terrorist screening database of the Department, and may revoke such registration number if the Secretary determines such person may pose a threat to national security. (B)

Notice of revocation

The Secretary shall, as appropriate, provide prior notice to a person whose registration number is revoked under this section and such person shall have an opportunity to appeal, as provided in paragraph (4).

899C.

Inspection and auditing of records

The Secretary shall establish a process for the periodic inspection and auditing of the records maintained by owners of ammonium nitrate facilities for the purpose of monitoring compliance with this subtitle or for the purpose of deterring or preventing the misappropriation or use of ammonium nitrate in an act of terrorism.

899D.

Administrative provisions

(a)

Cooperative agreements

The Secretary— (1)may enter into a cooperative agreement with the Secretary of Agriculture, or the head of any State department of agriculture or its designee involved in agricultural regulation, in consultation with the State agency responsible for homeland security, to carry out the provisions of this subtitle; and (2)wherever possible, shall seek to cooperate with State agencies or their designees that oversee ammonium nitrate facility operations when seeking cooperative agreements to implement the registration and enforcement provisions of this subtitle. (b)

Delegation

(1)

Authority

The Secretary may delegate to a State the authority to assist the Secretary in the administration and enforcement of this subtitle. (2)

Delegation required

At the request of a Governor of a State, the Secretary shall delegate to that State the authority to carry out functions under sections 899B and 899C, if the Secretary determines that the State is capable of satisfactorily carrying out such functions. (3)

Funding

Subject to the availability of appropriations, if the Secretary delegates functions to a State under this subsection, the Secretary shall provide to that State sufficient funds to carry out the delegated functions. (c)

Provision of guidance and notification materials to ammonium nitrate facilities

(1)

Guidance

The Secretary shall make available to each owner of an ammonium nitrate facility registered under section 899B(c)(1) guidance on— (A)the identification of suspicious ammonium nitrate purchases or transfers or attempted purchases or transfers; (B)the appropriate course of action to be taken by the ammonium nitrate facility owner with respect to such a purchase or transfer or attempted purchase or transfer, including— (i)exercising the right of the owner of the ammonium nitrate facility to decline sale of ammonium nitrate; and (ii)notifying appropriate law enforcement entities; and (C)additional subjects determined appropriate by to prevent the misappropriation or use of ammonium nitrate in an act of terrorism. (2)

Use of materials and programs

In providing guidance under this subsection, the Secretary shall, to the extent practicable, leverage any relevant materials and programs. (3)

Notification materials

(A)

In general

The Secretary shall make available materials suitable for posting at locations where ammonium nitrate is sold. (B)

Design of materials

Materials made available under subparagraph (A) shall be designed to notify prospective ammonium nitrate purchasers of— (i)the record-keeping requirements under section 899B; and (ii)the penalties for violating such requirements.

899E.

Theft reporting requirement

Any person who is required to comply with section 899B(e) who has knowledge of the theft or unexplained loss of ammonium nitrate shall report such theft or loss to the appropriate Federal law enforcement authorities not later than 1 calendar day of the date on which the person becomes aware of such theft or loss. Upon receipt of such report, the relevant Federal authorities shall inform State, local, and tribal law enforcement entities, as appropriate.

899F.

Prohibitions and penalty

(a)

Prohibitions

(1)

Taking possession

No person shall take possession of ammonium nitrate from an ammonium nitrate facility unless such person is registered under subsection (c) or (d) of section 899B, or is an agent of a person registered under subsection (c) or (d) of that section. (2)

Transferring possession

An owner of an ammonium nitrate facility shall not transfer possession of ammonium nitrate from the ammonium nitrate facility to any person who is not registered under subsection (c) or (d) of section 899B, or is not an agent of a person registered under subsection (c) or (d) of that section. (3)

Other prohibitions

No person shall— (A)buy and take possession of ammonium nitrate without a registration number required under subsection (c) or (d) of section 899B; (B)own or operate an ammonium nitrate facility without a registration number required under section 899B(c); or (C)fail to comply with any requirement or violate any other prohibition under this subtitle. (b)

Civil penalty

A person that violates this subtitle may be assessed a civil penalty by the Secretary of not more than $50,000 per violation. (c)

Penalty considerations

In determining the amount of a civil penalty under this section, the Secretary shall consider— (1)the nature and circumstances of the violation; (2)with respect to the person who commits the violation, any history of prior violations, the ability to pay the penalty, and any effect the penalty is likely to have on the ability of such person to do business; and (3)any other matter that the Secretary determines that justice requires. (d)

Notice and opportunity for a hearing

No civil penalty may be assessed under this subtitle unless the person liable for the penalty has been given notice and an opportunity for a hearing on the violation for which the penalty is to be assessed in the county, parish, or incorporated city of residence of that person. (e)

Delay in application of prohibition

Paragraphs (1) and (2) of subsection (a) shall apply on and after the date that is 6 months after the date that the Secretary issues of a final rule implementing this subtitle.

899G.

Protection from civil liability

(a)

In general

Notwithstanding any other provision of law, an owner of an ammonium nitrate facility that in good faith refuses to sell or transfer ammonium nitrate to any person, or that in good faith discloses to the Department or to appropriate law enforcement authorities an actual or attempted purchase or transfer of ammonium nitrate, based upon a reasonable belief that the person seeking purchase or transfer of ammonium nitrate may use the ammonium nitrate to create an explosive device to be employed in an act of terrorism (as defined in section 3077 of title 18, United States Code), or to use ammonium nitrate for any other unlawful purpose, shall not be liable in any civil action relating to that refusal to sell ammonium nitrate or that disclosure. (b)

Reasonable belief

A reasonable belief that a person may use ammonium nitrate to create an explosive device to be employed in an act of terrorism under subsection (a) may not solely be based on the race, sex, national origin, creed, religion, status as a veteran, or status as a member of the Armed Forces of the United States of that person.

899H.

Preemption of other laws

(a)

Other Federal regulations

Except as provided in section 899G, nothing in this subtitle affects any regulation issued by any agency other than an agency of the Department. (b)

State law

Subject to section 899G, this subtitle preempts the laws of any State to the extent that such laws are inconsistent with this subtitle, except that this subtitle shall not preempt any State law that provides additional protection against the acquisition of ammonium nitrate by terrorists or the use of ammonium nitrate in explosives in acts of terrorism or for other illicit purposes, as determined by the Secretary.

899I.

Deadlines for regulations

The Secretary— (1)shall issue a proposed rule implementing this subtitle not later than 6 months after the date of the enactment of this subtitle; and (2)issue a final rule implementing this subtitle not later than 1 year after such date of enactment.

899J.

Authorization of appropriations

There are authorized to be appropriated to the Secretary such sums as are necessary to carry out this subtitle for each of fiscal years 2007 through 2011.

. (b)

Clerical amendment

The table of contents in section 1(b) of such Act is amended by inserting after the item relating to section 899 the following: Subtitle J—Secure Handling of Ammonium Nitrate Sec. 899A. Definitions. Sec. 899B. Regulation of the sale and transfer of ammonium nitrate. Sec. 899C. Inspection and auditing of records. Sec. 899D. Administrative provisions. Sec. 899E. Theft reporting requirement. Sec. 899F. Prohibitions and penalty. Sec. 899G. Protection from civil liability. Sec. 899H. Preemption of other laws. Sec. 899I. Deadlines for regulations. Sec. 899J. Authorization of appropriations. .