Comments on CFATS Explosive Chemicals ANPRM – 2-14-21

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”. It has been over two weeks now since a comment was posted about the ANPRM. While it is common for industry to take some time in preparing comments on rulemakings, it has been over a month since this significant ANPRM was published and there has been only one comment from an explosives manufacturer submitted.

I suspect that part of the reason for the delay is that industry is waiting to see what take the new administration has on this rulemaking. At this point the Biden Administration has not made any public comment on its intentions. While they have withdrawn many rulemakings being considered by the OMB’s Office of Information and Regulatory Affairs (OIRA), that option is not available for this rulemaking; it had already been published in the Federal Register. The only other action that the Administration has taken to date on more controversial rulemakings already under public scrutiny is to extend the comment due date. No such action has taken place on this rulemaking.

There have been news reports (see here for example) that the International Chemical Workers Council has at least some objections to the rulemaking, so I had expected to see some early comments on that front, but nothing has shown up yet at Regulations.gov. I suspect that the unions would want to see the CFATS program remain in effect at the potentially affected facilities because that program does contain some specific (if perhaps weakly enforced) worker participation requirements and whistleblower protections that may not be available under the BATF regulations.

I would also have expected to see early comments from the owners of the 24 facilities covered under the CFATS program that would potentially be removed from coverage under those regulations if this rulemaking goes forward. They definitely have a direct stake in this rulemaking, and they should probably consider explaining why this proposed change to Appendix A would not have an adverse impact on security at their facilities.

The March 8^th deadline for comments is fast approaching.