Saturday, March 13, 2021

Comments on CFATS Explosive Chemicals ANPRM – 3-13-21

On January 6th, 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

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

Comments on CFATS Explosive Chemicals ANPRM – 3-6-21

This week there were 43 new comments submitted. The letter writing campaign that I described in a previous post continued this week with four more entries from employees of Owen Oil Tools and eight submissions from employees of Hill Top Energy. Two other commentors provided essentially the same comments as those seen from Owen Oil Tools and Hill Top Energy.

This week’s non-duplicative comments came from:

The American Fuel & Petrochemical Manufacturers (AFPM),

Danielle M. Nelson, Agricultural Retailers Association,

Paul Orum,

Ariel Hill-Davis, Industrial Minerals Association (IMA),

And, of course, my comment from my blog post from two weeks ago was also submitted.

Additional Changes to Appendix A

The AFPM comments suggest that CISA consider revising the current handling of mixtures in Appendix A as a part of this rulemaking. The Appendix currently uses a set percentage of a DHS chemical of interest (separately established for each COI) to determine if a mixture is reportable. AFPM proposes using the NFPM rating of a mixture containing a COI to determine if that mixture would be reportable.

Explosives Incident Reports

Paul Orum points out that the USBDC Annual Explosives Incident Report for 2019 reports that there were “62 thefts of explosives 2015-19 (see Figure 24) and 616 explosives losses (possible diversions) 2015-19 (see Figure 26).”

Additional Costs Identified

The IMA response provides the most comprehensive list of the kinds of additional security measures required by the CFATS program over the ATF rules that I have seen in any of the replies to date:

“Physical measures such as: cameras, intrusions detection systems, gates, and signage necessitate additional capital investments. In addition, programmatic measures such as: written site security plans, training, drills, monitoring of threat levels, cyber security measures, annual internal audits, routine (every 12 – 18 months) inspections by DHS, and recordkeeping, add operational costs to businesses.”


This last Monday saw the close of the comment period on this rulemaking. All of the above comments were submitted on/before March 9th. For all intents and purposes, the ‘public’ has spoken. It is now left to CISA to review the comments and make any appropriate changes to the proposed revision to the CFATS regulations. The hard part now becomes crafting the regulatory language that would implement the proposal.

I would not be surprised to see the notice of proposed rulemaking being sent to the OMB’s Office of Information and Regulatory Affairs (OIRA) for review within the next six months. It could take longer if some of the proposed additional changes are added to the rulemaking. 

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