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Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Proposed Rules intentional attack on an explosives facility. 18 For these reasons, CFATS
listed Division 1.1 explosives as presenting both Release-Explosive 19
and Theft/diversion-EXP/IEDP 20
security issues.
However, since implementation of the CFATS program, CISA has found that, for many facilities, possession of Division 1.1 explosives at the quantity triggering reporting for the ReleaseExplosive security issue under CFATS
i.e., 5,000 pounds or more would not result in the risk of a large number of fatalities if attacked. Thus, CISA does not currently regulate any facilities for possession of Division 1.1 explosives for the Release-Explosive security concern.
This is because facilities that possess Division 1.1 explosives are required to comply with ATFs table of distances for storage of explosive materials i.e.
standoff distances at 27 CFR 555.218
224. The enhanced CFATS risk-tiering methodology implemented beginning in October 2016 accounts for the increased security resulting from ATFs table-ofdistance regulations, which protects against offsite impacts of an explosive release, whether accidental or intentional.
We note that while ATFs and CISAs regulations differ substantially, other agencies have deferred to ATFs explosives expertise when considering regulation of explosives facilities. In 1998, while developing the Risk Management Plan regulations, the EPA
issued a final rule removing Division 1.1
explosives from its list of regulated substances for accidental release prevention.21 In removing Division 1.1
explosives from regulation, the EPA
concluded that the . . . current ATF
and other regulations and current and contemplated industry practices promote safety and accident prevention in storage, handling, transportation, and use of explosives, making them adequate for EPAs purposes.22 While the ATF regulates explosives materials and the CFATS regulates the chemical facilities possessing explosive materials, CISA notes that ATFs current regulations address a number of the same safety and security precautions as 18 72

FR 65396, 65403 emphasis added.
chemicals have potential to affect populations within and beyond the facility if intentionally denotated. 72 FR 65396, 65397 Nov.
20, 2007.
20 Theft/Diversion-Explosives EXP/IEDP
chemicals could be stolen or diverted and used in explosives or IEDs. Id. at 65397.
21 List of Regulated Substances and Thresholds for Accidental Release Prevention; Amendments, 63
FR 640, 641 Jan. 6, 1998 announcing effective date of final rule amending 40 CFR part 68.
22 Id.

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the CFATS regulations for Division 1.1
explosives.
Other facilities that possess Division 1.1 explosives are considered high-risk under CFATS under the Theft/
diversion-EXP/IEDP security issue, in part because of the concerns presented by the prospect of physical or cyberfocused security breaches. CISA
currently regulates 85 facilities that possess Division 1.1 explosive COI
under the Theft/diversion-EXP/IEDP
security issue. Many of these facilities possess other COI regulated by CFATS
that are not Division 1.1 explosives. If Division 1.1 explosives were removed from Appendix A, CISA estimates that 24 facilities would no longer be regulated as high-risk under CFATS.
Though CFATS includes cybersecurity and some other requirements such as security plans, security equipment, training, or recording/reporting of threats that are not accounted for in ATFs framework, ATF regulations include some important theft-prevention and inventory-tracking standards 23 and adherence with ATF requirements is verified through periodic regulatory inspections of ATFs construction and locking requirements for magazines as well as reporting of theft/loss.24 For these reasons, it may be appropriate to rely solely on ATFs standards to address the threat that Division 1.1
explosives could be diverted. Further supporting this argument is the fact that ATFs secure-storage and related requirements appear to have successfully driven down the number of thefts of commercial explosives nationwidewith only three such thefts having been reported during the 2019
calendar year.25 However, there has been a slight increase in the number of reported losses.26 ATFs standards are applied across the explosives industry, covering thousands of entities that manufacture, distribute, receive, ship, and/or import explosives, while DHS
standards are applied only to a small number of the highest-risk facilities 85
chemical facilities. Given the wide application of ATF regulations across the explosives industry and their success in limiting thefts of commercial explosives, we believe there may be 23 See
27 CFR part 555.
27 CFR 555.207211 and 555.30.
25 United States Bomb Data Center, 2019
Explosives Incident Report, 15 2019, https
www.atf.gov/file/143481/download.
26 Id. at 16. The number of reported losses at commercial facilities nationwide has increased somewhat in the past five years, from 95 in 2015
to 113 in 2019.
24 See
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value in uniform application of security measures for these materials.
IV. Request for Comments Prior to implementing the enhanced tiering methodology in October of 2016, DHS published a CFATS ANPRM on August 18, 2014, to seek public comment on ways in which the CFATS
regulation and program might be improved.27 The ANPRM solicited public comments on any and all aspects of 6 CFR part 27, including Appendix A.
The Department also conducted seven listening sessions for the ANPRM. In addition, the Department published a notice on October 16, 2015 in the Federal Register soliciting additional public comments through November 30, 2015 about Appendix A to the CFATS
regulation and conducted a roundtable discussion and public listening session on October 27, 2015.28
In response to the 2014 CFATS
ANPRM, the Department received several detailed comments relevant to the coverage of Division 1.1 explosives under CFATS generally encouraging the Department to remove Division 1.1
explosives for both release-explosive and theft/diversion-EXP/IEDP security issues.29 Commenters also generally suggested that ATFs regulations governing commerce in explosives located at 27 CFR part 555 are sufficient and that the security obligations imposed by CFATS under 6 CFR part 27
are unnecessary. CISA also published a retrospective economic analysis of the CFATS program and received one responsive comment about facilities that are regulated by CFATS and the ATF.30
In light of the time that has passed since 2015, and the changes to the tiering methodology made since then, CISA is soliciting comments from stakeholders on the current coverage of release-explosive and theft/diversionEXP/IEDP COI under CFATS and on the proposed elimination of these COI from Appendix A. Specifically:
1 Should CISA remove Division 1.1
explosives for consideration as a release-explosive security concern? Why or why not?
2 Should CISA remove Division 1.1
explosives for consideration as a theft/
diversion-EXP/IEDP security concern?
Why or why not?
27 CFATS Advance Notice of Proposed Rulemaking, 79 FR 48693 Aug. 18, 2014.
28 CFATS Appendix A, Notice of Public Meeting, 80 FR 62504 Oct. 16, 2015.
29 The public comments provided in response to the August 2014 ANPRM are posted on www.regulations.gov under docket number DHS
20140016.
30 Retrospective Analysis of the Chemical Facility Anti-Terrorism Standards, 85 FR 37393 Jun. 22, 2020.

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