Comments on CFATS Explosive Chemicals ANPRM – 1-30-21

On January 6^th, CISA published an advanced notice of proposed rulemaking (ANPRM) for “Removal of Certain Explosive Chemicals From the Chemical Facility Anti-Terrorism Standards”. While I posted a comment to that rulemaking on January 7^th, it was not until this week that the next two public comments were posted. So this is the first post about public comments about that ANPRM.

Comments were received this week from:

• Douglas Maggard, and

• Aerojet Rocketdyne

Comment Summary

The Maggard comment is generally supportive of the rulemaking.

The Aerojet Rocketdyne comment notes that BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) does not regulate explosives utilized in support of government (DoD) contracts. The commentor notes that DOD may include protection requirements in contract language, but that language may have security gaps when compared to BATFE standards.

Commentary

There are two military related exemptions to 27 CFR 555 found in §555.141. The second exemption (bear with me for a second) is found in §555.141(a)(6); it applies to:

“Arsenals, navy yards, depots, or other establishments owned by, or operated by or on behalf of, the United States.”

These facilities are already exempt from coverage under the CFATS regulations under the DOD/DOE facility exemption.

The first BATFE exemption is found at §555.141(a)(5); it applies to:

“(5) The manufacture under the regulation of the military department of the United States of explosive materials for, or their distribution to or storage or possession by, the military or naval services or other agencies of the United States.”

Such facilities would not be exempt unless they were owned or operated by the Department of Defense or Department of Energy. Thus, it would seem that such facilities would, if the proposed changes to Appendix A were put into place, such facilities would not be regulated by either BATFE or CFATS regulations. This would need to be addressed by the CFATS rulemaking.