Comments on CFATS Explosive Chemicals ANPRM – 2-27-21

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”. This is part of a series of blog posts about the public comments submitted in response to that ANPRM. The earlier posts in the series were:

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

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

• Comments on CFATS Explosive Chemicals ANPRM – 2-20-21

This week there were twelve new comments submitted. All three supported the proposed rulemaking. The comments were from:

• Clint Fritz,

• James Kinsey, Owen Oil Tools,

• Debbie Payne, Owen Compliance Services,

• Patrick Valentino, Hunting Titan,

• Terry Newton, Nelson Brothers,

• Ralph M. Hymer, Nelson Brothers,

• Ralph M. Hymer,

• Chris Bridges, Owen Oil Tools,

• Jason M Ryan, Orica USA,

• Jon Southerland, Accurate Energetic Systems,

• Lea DeVellis,

• Paul E. Smith, Pyrotechnics Guild International

Letter Writing Campaign

The first eleven submissions listed above have very nearly identical wording. This indicates that there is a letter writing campaign that has been initiated to support this rulemaking. Supportive letter writing campaigns are an interesting effort in influencing regulatory action. CISA does not ‘count votes’ in their consideration of the rulemaking; they are required to review and consider the information provided by the commentors in moving the rulemaking. Multiple submissions with no new information means that CISA has less work to do to move this forward.

GAO Study

All eleven campaign comments contain the following comment:

“On January 21, 2021, the Government Accountability Office (GAO) released their study reviewing the CFATS program and overlap with other chemical security programs. The study found that most CFATS Risk-Based Performance Standards (RBPS) directly overlap with ATF regulatory requirements for commercial explosives.”

What the Report actually says is “ATF’s explosive materials program and TSA’s rail security program contain requirements or guidance that generally align with 11 of 18 CFATS standards.” (pg 27). According to the Report (pgs 23-6) the ATF program does not address the following CFATS risk-based performance standard requirements:

• Deter cyber sabotage,

• Develop and exercise an emergency response plan,

• Maintain effective monitoring, communications, and warning systems,

• Ensure proper security training,

• Escalate the level of protective measures for periods of elevated threat,

• Address specific threats, vulnerabilities or risks, and

• Establish officials and an organization responsible for security

The additional CFATS security requirements explain why the CFATS program has a higher security cost at these facilities. None of the commentors to date have explained why these security requirements are excessive for facilities licensed to handle explosives.

Duplicative Inspections

The one whole original submission this week was from Pyrotechnics Guild International. Smith raises a point that I have not seen in any of the comments to date, duplicative inspections. They note:

“The ATF already does unannounced inspections which require taking time away from that day's production duties.  Adding yet another inspection, of the same materials, and adding duplicative documentation increases time spent on the same or very similar regulatory focus.”