In conducting this review, we identified several issues related to the regulation and safeguarding of explosives in the United States that while not addressed in the SEA nonetheless are relevant to public safety. The following summarizes issues regarding explosives not currently subject to ATF regulation and the limits of the ATF’s authority to inspect explosives storage facilities.
The ATF lacks the authority to regulate ammonium nitrate and some commonly used explosives. The ATF does not have the authority to regulate ammonium nitrate, binary explosives, and black powder in quantities of less than 50 pounds.
Exhibit 3: Cover of Pamphlet Sent to Farmers by the ATF
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Ammonium Nitrate. The ATF lacks the authority to regulate ammonium nitrate, other than being authorized to collect samples from manufacturers. This fertilizer, commonly used by farmers, can cause a massive explosion when mixed with diesel fuel oil. For example, the 1995 bombing of the Murrah Federal Building in Oklahoma City was carried out with an illegally constructed ammonium nitrate and fuel oil bomb. Nearly 4,800 pounds of ammonium nitrate were used in that bombing. Approximately 220 pounds of ammonium nitrate were used in the 2002 terrorist bombing of a Bali nightclub.
In July 2004, the ATF worked with The Fertilizer Institute and the Association of American Plant Food Control Officials in launching the “ America’s Security Begins with You” campaign. The campaign urges those who handle ammonium nitrate to implement security plans, maintain sales records, and alert the ATF of suspicious activity through a toll-free hotline. (See pamphlet cover at right.) The Chief of the ATF’s Explosives Industry Programs Branch stated that the program promotes “increased vigilance” among those who sell and use ammonium nitrate fertilizer.
The Ammonium Nitrate Security Act was introduced in Congress in September 2004 to require licenses for sellers of ammonium nitrate, permits for purchasers of the fertilizer, and to authorize the ATF to inspect ammonium nitrate storage facilities.80 The bill would also require manufacturers, distributors, and retailers to immediately report losses of ammonium nitrate to the ATF. Congress recessed without taking action on the proposed legislation. However, the bill was recently reintroduced in the 109th Congress.
Binary Explosives. Binary explosives are explosives created by combining two chemicals that are not, by themselves, explosive. Because binary explosives need not be mixed until needed, they are safer to store and transport. Typically, they are made from prepackaged chemical ingredients, including oxidizers and flammable liquids or solids. Until the compounds are mixed, they are not classified as explosives and, therefore, are not subject to ATF regulation. However, once mixed, binary explosives are subject to applicable federal requirements. A person who regularly and continually combines compounds of binary materials to manufacture an explosive (such as a large mining operation that conducts mixing operations on site) is considered to be engaged in the business of manufacturing explosives and is required to be licensed as a manufacturer.
Black Powder and Smokeless Powder. The ATF licenses manufacturers and sellers of black powder, an explosive commonly used in muzzle-loading firearms. However, other than requiring that purchasers be at least 21 years old, the ATF has no authority to regulate sales of less than 50 pounds of black powder. Because black powder is relatively inexpensive (between $5 and $15 per pound), it is the most common explosive used in pipe bombs. Additionally, the ATF does not regulate smokeless powder, a more expensive explosive used in the manufacturing of firearms ammunition. Developed in the late 19th century to replace black powder, smokeless powder leaves minimal residue in a gun barrel following its use. Approximately 10 million pounds of commercial smokeless powders are produced in the United States each year. The powder is about eight times as expensive as black powder.
The ATF does not have the authority to inspect all government-owned explosives storage facilities. The ATF is authorized to conduct regulatory inspections of explosives licensees and permit holders.81 However, federal, state, and local government agencies are exempt from ATF licensing and permitting requirements, although most are required by law to store explosives in accordance with federal regulations.82 Therefore, according to ATF Headquarters officials, the ATF only inspects government-owned explosives storage facilities when the owners of these magazines invite the ATF to perform inspections. According to the ATF’s Deputy Assistant Director, Enforcement Programs and Services, ATF Inspectors conducted 39 inspections of government-owned explosives storage facilities during FY 2003.
The ATF has not cataloged the number of government-owned explosives storage facilities in the United States. The ATF, itself, operates 188 explosives storage magazines. There are far more magazines operated by federal, state, and local law enforcement agencies, which store explosives as evidence and for training purposes. ATF Headquarters officials also stated that many transportation departments and public universities maintain storage magazines.
In August 2004, one month after explosives were stolen from state- and federally-owned magazines in California, the House Committee on Government Reform examined the issue at a field hearing in California.83 In September 2004, two members of the Committee introduced a bill entitled, The Law Enforcement Explosives Storage Enhancement Act.84 The bill would have required security systems at magazines owned by law enforcement agencies and would also have required states to report to the ATF the locations of these magazines. The bill did not address explosives storage facilities owned by government agencies not deemed law enforcement agencies. Also in September 2004, a bill was introduced that would expand the ATF’s control of explosives to include detonable nitrate fertilizers.85 Both bills would have had significant impact on the ATF’s operations and resources. Congress recessed without taking action on the bills. As the OIG Inspection Team was finalizing this report, the Government Accountability Office (GAO), at the request of the sponsor and one co-sponsor of the Law Enforcement Explosives Storage Enhancement Act bill, initiated a review of the safety and security of government-owned explosive storage facilities.86
We believe the ATF should critically consider the legislative proposals and coordinate with the Department’s Office of Legislative Affairs on the Department’s position with regard to these proposals.
- H.R. 5140.
- 27 C.F.R. Part 555.24.
- 27 C.F.R. Part 555, Subpart K – Storage. According to 18 U.S.C. § 845(a)(6), federal government agencies are exempt from explosives storage requirements.
- Homeland Security: Surveillance and Monitoring of Explosive Storage Facilities, Field Hearing Before the House Committee on Government Reform, Subcommittee on National Security, Emerging Threats and International Relations, San Mateo, CA, August 2, 2004.
- The bill – H.R. 5162 – was introduced in the House of Representatives on September 29, 2004.
- The bill – H.R. 5140, Ammonium Nitrate Security Act – was introduced in the House of Representatives on September 23, 2004.
- At an entrance conference to discuss the review with ATF Headquarters officials in February 2005, GAO staff stated that the review would preliminarily focus on explosives stored by law enforcement agencies. However, after discussing the scope of the review, the ATF urged the GAO to also examine the condition of explosives storage facilities maintained by state departments of transportation, state divisions of natural resources, and colleges and universities.
