Thursday, August 4, 2011

Ammonium Nitrate Security Program NPRM - Registration

On August 3rd DHS published their Ammonium Nitrate Security Program (ANSP) notice of proposed rulemaking (NPRM). This blog post is part of a continuing series that looks at provisions of that NPRM. Previous posts in this series included:

The purpose of the ANSP is to regulate the sale and/or transfer ammonium nitrate (AN) to prevent its misappropriation or use by terrorists. A key component of the program is the registration of ‘AN Facilities’ and people that intend to purchase AN from such facilities. Part of that registration process will include conducting a check of applicants against the Terrorist Screening Database (TSDB) and the issuance of a registration number for applicants that do not appear on the TSDB.

Definition of ‘AN Facility’

Section 31.105 would define an ‘AN Facility’ as “Any person or entity that produces, sells or otherwise transfers ownership of, or provides application services for, ammonium nitrate.” (76 FR 46949) Since it is not expected that physical facilities would appear on the TSDB, DHS would expect that owners and operators of AN Facilities would register, not facilities.

The proposed rule would offer an expansive definition of ‘owners and operators’ that would include “any person who may individually perform a sale or transfer of ammonium nitrate on behalf of an AN Facility” (76 FR 46918). This would include personnel that provide ‘application services’; the physical deposition of AN on agricultural property by someone other than the owner operator of that property. Registered owners and operators would be classified as ‘AN Sellers’, ‘AN Facility Representatives’, and/or ‘Designated AN Facility POC’.

DHS only intends to register as AN Sellers those personnel actually involved in the sale, transfer and application services of AN. Personnel associated with an AN Facility that do not have a personal role in the transfer of AN would not be required to register.

The preamble specifically includes “persons who provide ammonium nitrate transportation services (e.g., delivery truck drivers)” (76 FR 46919) in their description of operators that would be required to register. Since most such truck drivers would be required to have HAZMAT endorsements (HME) of their CDL it is not clear why they would have to be registered since they would have already undergone a TSDB check to receive that endorsement.

Definition of ‘AN Purchaser’

Anyone who purchases or takes ownership of AN from an AN facility must be registered. They will be registered as either an AN Purchaser or an AN Agent. The one exception to this would be someone who purchases AN application services; DHS acknowledges that “ammonium nitrate fertilizer is [not] likely to be misappropriated for use in acts of terrorism after it has been applied to agricultural property”. Once again, DHS does not make any provisions for exempting agents or purchasers from registration is they have an HME.

Since an AN Purchaser could also be an owner/operator of an AN facility, multiple registrations would, at first glance, appear to be required for some persons. Actually, all personnel covered under this proposed rule would be applying for an ‘AN Registered User Number’. An applicant will be required to identify each of their intended roles during the application process. While the NPRM does address registration updates, it does not specifically state if AN Registered Users will have to update their various roles in AN process when they change.

On-Line Registration

DHS intends to establish an on-line registration process. While the NPRM does not specifically say that the AN User Registration Portal would be a secure site, it would seem to be a requirement for this type web site. Since the Subtitle J authorization language for this rule requires DHS to respond to applications within 72 hours, this is the only practicable method for conducting registration.

DHS acknowledges that not every potential AN applicant will have personal internet access. They do note that “registration applicants could use public computers and internet connections, or computers and Internet connections provided by AN Facilities” (76 FR 46923). It would seem that AN Facilities would have a vested interest in making on-line registration access available to their customers.

The NPRM does not address the issue of how DHS will confirm that the applicant is whom they claim to be. There are, for example, no provisions for requiring some form of biometric identification as part of the application and vetting process. There will not even be a picture ID establishing the fact that an individual has successfully completed the registration process; DHS is considering providing a certificate containing the registration number.

The NPRM provides for a 5-year registration. The same AN User Registration Portal would be used for renewing that registration.

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