S 3405 CFATS Reauthorization – Explosive Materials

This is another in a series of blog posts about S 3405, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2018, which would reauthorize the Chemical Facility Anti-Terrorism Standards (CFATS) program for five years. The other blog posts in the series include:

Sen Johnson Proposes Gutting Cybersecurity Provisions of CFATS Program

S 3405 Introduced – CFATS Authorization

S 3405 CFATS Reauthorization – EAP

S 3405 CFATS Reauthorization – CFATS Recognition Program

S 3405 CFATS Reauthorization – Inspection Frequency

S 3405 CFATS Reauthorization – PSP

Explosive Materials

Section 12 of the bill replaces the current 6 USC 629, Outreach to chemical facilities of interest, with a new section dealing with ‘Explosive Materials’. The new section prohibits DHS from designating regulated explosive materials as chemicals of interest in Appendix A, 6 CFR 27. This would effectively stop DHS from regulating security at facilities based solely on the presence of explosive chemicals.

Commentary

The regulated explosives industry (27 CFR 555) has long maintained that the ATF regulations under which they operate provide for adequate security and have routinely objected to ATF licensed facilities being covered under CFATS. This was reiterated in the latest Senate hearing on the CFATS program.

I am not conversant with the ATF security requirements, so I cannot judge whether they are more or less stringent than the CFATS requirements. I would assume, however, that they are certainly more stringent than the EPA security requirements for public water system or wastewater treatment works; both of which are excluded from the CFATS requirements under 6 USC 621(4). So, on that basis one could easily argue that ATF licensed manufacturers or approved storage facility should also be exempt from the CFATS program.

Unfortunately, Sen. Johnson has tried to go about this in a round-about way and has ended up compromising his efforts. Instead of adding language to §621(4) adding ATF regulated facilities to the list of excluded facilities, Johnson attempted to define the exemption based upon the presence of explosive materials at the facility. This would effectively exempt most approved storage facilities (unless they stored ammonium nitrate, for example), but licensed manufacturers would still be liable for coverage under the CFATS rules because of the presence of explosives precursors that remain on the list of COI.

Actually, I am beginning to wonder just how well Sen. Johnson and his staff understand the operation of the CFATS program.