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”. 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 While they have withdrawn many rulemakings being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 8th deadline for comments is fast
approaching.

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Author Of this post: PJCoyle

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