II
109th CONGRESS
1st Session
S. 1141
IN THE SENATE OF THE UNITED STATES
May 26, 2005
Mr. Cochran (for himself, Mr. Pryor, Mr. Chambliss, and Mr. Roberts) 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 ammonium nitrate.
Short title
This Act may be cited as the
Secure Handling of Ammonium Nitrate
Act of 2005
.
Findings
Congress finds that—
ammonium nitrate is an important fertilizer used to produce a reliable and affordable food supply for the United States and the world;
in the wrong hands, ammonium nitrate may be used for illegal activities;
the production, importation, storage, sale, and distribution of ammonium nitrate affects interstate and intrastate commerce; and
it is necessary to regulate the production, storage, sale, and distribution of ammonium nitrate.
Definitions
In this Act:
Ammonium nitrate
The term ammonium nitrate means solid ammonium nitrate that is chiefly the ammonium salt of nitric acid and contains not less than 33 percent nitrogen, of which—
50 percent is in ammonium form; and
50 percent is in nitrate form.
Facility
In general
The term facility means any site where ammonium nitrate is produced, stored, or held for distribution, sale, or use.
Inclusions
The term facility includes—
all buildings or structures used to produce, store, or hold ammonium nitrate for distribution, sale, or use at a single site; and
multiple sites described in clause (i), if the sites are—
contiguous or adjacent; and
owned or operated by the same person.
Handle
The term handle means to produce, store, sell, or distribute ammonium nitrate.
Handler
The term handler means any person that produces, stores, sells, or distributes ammonium nitrate.
Purchaser
The term purchaser means any person that purchases ammonium nitrate.
Secretary
The term Secretary means the Secretary of Homeland Security.
Regulation of handling and purchase of ammonium nitrate
In general
The Secretary may regulate the handling and purchase of ammonium nitrate to prevent the misappropriation or use of ammonium nitrate in violation of law.
Regulations
The Secretary may promulgate regulations that require—
handlers—
to register facilities;
to sell or distribute ammonium nitrate only to handlers and purchasers registered under this Act; and
to maintain records of sale or distribution that include the name, address, telephone number, and registration number of the immediate subsequent purchaser of ammonium nitrate; and
purchasers to be registered.
Use of previously submitted information
Prior to requiring a facility or handler to submit new information for registration under this section, the Secretary shall—
request from the Attorney General, and the Attorney General shall provide, any information previously submitted to the Attorney General by the facility or handler under section 843 of title 18, United States Code; and
at the election of the facility or handler—
use the license issued under that section in lieu of requiring new information for registration under this section; and
consider the license to fully comply with the requirement for registration under this section.
Consultation
In promulgating regulations under this section, the Secretary shall consult with the Secretary to Agriculture to ensure that the access of agricultural producers to ammonium nitrate is not unduly burdened.
Data confidentiality
In general
Notwithstanding section 552 of title 5, United States Code, or the USA PATRIOT ACT (Public Law 107–56; 115 Stat. 272) or an amendment made by that Act, except as provided in paragraph (2), the Secretary may not disclose to any person any information obtained from any facility, handler, or purchaser—
regarding any action taken, or to be taken, at the facility or by the handler or purchaser to ensure the secure handling of ammonium nitrate; or
that would disclose—
the identity or address of any purchase of ammonium nitrate;
the quantity of ammonium nitrate purchased; or
the details of the purchase transaction.
Exceptions
The Secretary may disclose any information described in paragraph (1)—
to an officer or employee of the United States, or a person that has entered into a contract with the United States, who needs to know the information to perform the duties of the officer, employee, or person, or to a State agency pursuant to an arrangement under section 6, under appropriate arrangements to ensure the protection of the information;
to the public, to the extent the Secretary specifically finds that disclosure of particular information is required in the public interest; or
to the extent required by order of a Federal court in a proceeding in which the Secretary is a party, under such protective measures as the court may prescribe.
Enforcement
Inspections
The Secretary, without a warrant, may enter any place during business hours that the Secretary believes may handle ammonium nitrate to determine whether the handling is being conducted in accordance with this Act, including regulations promulgated under this Act.
Prevention of sale or distribution order
In any case in which the Secretary has reason to believe that ammonium nitrate has been handled other than in accordance with this Act, including regulations promulgated under this Act, the Secretary may issue a written order preventing any person that owns, controls, or has custody of the ammonium nitrate from selling or distributing the ammonium nitrate.
Appeal procedures
In general
A person subject to an order under subsection (b) may request a hearing to contest the order, under such administrative adjudication procedures as the Secretary may establish.
Rescission
If an appeal under paragraph (1) is successful, the Secretary shall rescind the order.
In rem proceedings
The Secretary may institute in rem proceedings in the United States district court for the district in which the ammonium nitrate is located to seize and confiscate ammonium nitrate that has been handled in violation of this Act, including regulations promulgated under this Act.
Administrative provisions
Cooperative agreements
The Secretary may enter into a cooperative agreement with the Secretary of Agriculture, or the head of any State department of agriculture or other State agency that regulates plant nutrients, to carry out this Act, including cooperating in the enforcement of this Act through the use of personnel or facilities.
Delegation
In general
The Secretary may delegate to a State the authority to assist the Secretary in the administration and enforcement of this Act, including regulations promulgated under this Act.
Delegation required
On the request of a Governor of a State, the Secretary shall delegate to the State the authority to carry out section 4 or 5, on a determination by the Secretary that the State is capable of satisfactorily carrying out that section.
Funding
If the Secretary enters into an agreement with a State under this subsection to delegate functions to the State, the Secretary shall provide to the State adequate funds to enable the State to carry out the functions.
Inapplicability
Notwithstanding any other provision of this subsection, this subsection does not authorize a State to carry out a function under section 4 or 5 relating to a facility or handler in the State that makes the election described in section 4(c)(2).
Civil liability
Unlawful acts
It is unlawful for any person—
to fail to perform any duty required by this Act, including regulations promulgated under this Act;
to violate the terms of registration under this Act;
to fail to keep any record, make any report, or allow any inspection required by this Act; or
to violate any sale or distribution order issued under this Act.
Penalties
In general
A person that violates this Act (including a regulation promulgated under this Act) may only be assessed a civil penalty by the Secretary of not more than $50,000 per violation.
Notice and opportunity for a hearing
No civil penalty shall be assessed under this Act unless the person charged has been given notice and opportunity for a hearing on the charge in the county, parish, or incorporated city of residence of the person charged.
Jurisdiction over actions for civil damages
The district courts of the United States shall have exclusive jurisdiction over any action for civil damages against a handler for any harm or damage that is alleged to have resulted from the use of ammonium nitrate in violation of law that occurred on or after the date of enactment of this Act.
State law preemption
This Act preempts any State law (including a regulation) that regulates the handling of ammonium nitrate to prevent the misappropriation or use of ammonium nitrate in violation of law.
Authorization of appropriations
There are authorized to be appropriated such sums as are necessary to carry out this Act.