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

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.”

By admin