• Michael Kennedy Esq.*

A Post Manchester Bombing Review of U.S. Laws Preventing Terrorists from Accessing Chemicals Used in

The Manchester bomber used the same explosives as the Paris attackers to massacre 22 concertgoers last week. U.S. Congressman Michael McCaul, Chairman of the House Homeland Security Committee, said the bomb making methods suggests a “level of sophistication” and his Committee anticipates a June 28th hearing in addition to a bill containing a regulatory framework for IED precursors by the end of the year. While investigations are ongoing in Europe, it’s important to evaluate IED terrorism laws that are now in place. Because, designing laws to adapt to the changing terrorist landscape will remain a perpetual challenge. In this article, I attempt to consolidate a history of the laws that I’ve seen work, fail and need to work for the future.

Chemical Facility Anti-Terrorism Statute (CFATS)- More Chemical than IED Prevention

First, the 2007 Homeland Security Appropriations Act gave the Department of Homeland Security (DHS) the authority to regulate the security of high-risk chemical facilities.[1] Thus the CFATS program was born. The “chemicals of interest” list under CFATS includes ammonium nitrate and a few other precursor IED chemicals, but purchasing and registering chemicals was not the focus.

Ammonium Nitrate Security Program (ANSP) – Modeled to Prevent the “Oklahoma City bombing” but otherwise Obsolete

After the Oklahoma City bombing that killed 168 people, Congress designed the Ammonium Nitrate Security Program (ANSP) to narrowly prevent the Oklahoma incident. On December 26, 2007, the Omnibus Appropriations Act of 2008 enacted the Secure Handling of Ammonium Nitrate Act (SHANA)[2] , but it has not been implemented.

While the ANSP intentions were good, ammonium nitrate supply chains were altered making the implementation of the program obsolete. In October 2008, DHS issued a report stating that it is not going to pursue ANSP regulation because “based upon the Department’s experience, implementing this statute will provide a limited security benefit focused on a single chemical of interest at a high resource cost.”[3]

On August 3, 2011, DHS issued its ANSP proposal to implement SHANA. On December 20, 2012, H.R. 3116 is reported to the House with the Thompson-King amendment, §908, which addresses the most concerning aspects of the proposed rule.

Ammonium Nitrate Security Program – The Rule gets Shelved

In the Fall 2015 semi-annual regulatory agenda, DHS moved the advanced notice for proposed rule to the “long-term agenda.” Informally, DHS said it’s shelving the rulemaking while it goes back to Congress to ask for authority to better address chemical explosive precursors, and promises a less-onerous standard if it gets this authority.

The FY 2016 Omnibus Appropriations Act (Dec 2015), states, “Due to continued delays in implementing the final rule on ammonium nitrate, no funds are included for implementation but $4,500,000 is provided to allow NPPD (DHS) to employ additional measures to secure AN and other IED precursors while continuing the rulemaking process.”[4]

“Reducing the Threat of Improvised Explosive Device Attacks by Restricting Access to Chemical Explosive Precursors” Study

In early 2016, DHS submits to Congress draft legislation for the National Academies of Sciences to conduct a study to identify precursor chemicals and possible controls that could be imposed to better secure these materials against misappropriation and use. Their report and findings are anticipated to be finished in the fall of 2017. The committee contains the “who’s who” of IED prevention and the recommendations will be quite helpful to Congress, but will they get them in time?

The European Union Method: On paper good, implementation remains to be a challenge

Across the pond, the E.U. has a unique bifurcated framework for IED prevention. It regulates 1) what chemicals go into the public through a system of license and registrations and 2) enforces obligations for economic operators who place such substances on the market. The challenges still remain with gaps in consistent enforcement and E.U. cooperation within the states; however, it does contain some strong metrics of effectiveness in certain areas.

Conclusion: The Perfect blend of Effectiveness

To date there is no legislation altering the Ammonium Nitrate Security Program or preventing or registering the sale of precursors chemicals in the U.S. Closing these security gaps are in America’s best interest. The E.U. has an effective program but it’s riddled with challenges. The U.S. Congress has many options at their disposal, of which I will outline at another date but could include:

  1. Voluntary partnership programs, akin to “see something say something

  2. Effective regulatory controls (Using the CFATS Model of tiering)

  3. A formidable priority ranking of chemicals

  4. Addressing vulnerabilities and weaknesses of the supply chains with respect to theft and diversion of chemicals

  5. And balancing the costs, benefits, and its impact on commerce.

Overall it’s a challenge to regulate the changing counterterrorism IED landscape, but proactively focusing on countermeasures before an incident arises should be an obligation. We’ve seen the ANSP fail apart because it was tailored to a specific event. Absent that event, along with some long term carrot and stick incentives it can be an effective model for the world.

* Kennedy spent most of his career developing and evolving homeland security laws to adapt to the private sector and strengthening our nation’s critical Infrastructure. He's a recognized expert and co-chair of the American Bar Association’s Homeland Security Institute.

He’s advised three trade organizations on critical infrastructure issues including cyber security. Kennedy served twice as the assistant chair of the Chemical Sector Coordinating Council and was a liaison to the Federal Bureau of Investigation, Department of Homeland Security and Department of Defense on Counter Improvised Explosive Devices.

Due to his leadership on the hill, Kennedy was the main contributor to the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, which was signed by President Obama and became law on December 18, 2014. He’s a national expert in:

  • Chemical Facility Security (CFATS)

  • Maritime Transportation Security Act (MTSA) Section 563 of the 2008 Consolidated Appropriations Act,

  • Secure Handling of Ammonium Nitrate

  • Protection of Sensitive Information

  • Cyber Security (Act of 2015)and other security issues

[1] PL 109-295 §550 (October 2006).

[2] PL 110-161.

[3] “Secure Handling of Ammonium Nitrate – A Report in Response to House Report 110-497, NPPD, DHS, October 2008.

[4] Division F, Title III, page 57. http://docs.house.gov/meetings/RU/RU00/2015121

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