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Proposed Rules
Federal Register Vol. 86, No. 3
Wednesday, January 6, 2021

This section of the FEDERAL REGISTER
contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules.

DEPARTMENT OF HOMELAND
SECURITY
6 CFR Part 27
Docket No. CISA20200014
RIN 1670AA03

Removal of Certain Explosive Chemicals From the Chemical Facility Anti-Terrorism Standards Cybersecurity and Infrastructure Security Agency, DHS.
ACTION: Advance Notice of Proposed Rulemaking ANPRM.
AGENCY:

The Cybersecurity and Infrastructure Security Agency CISA is considering removing all 49 Division 1.1
explosive chemicals of interest from Appendix A of the Chemical Facility Anti-Terrorism Standards CFATS
regulations. Currently, both CISA and the Bureau of Alcohol, Tobacco, Firearms and Explosives ATF regulate facilities possessing these chemicals for security concerns. Removing these chemicals of interest from coverage under CFATS would reduce regulatory requirements for facilities currently covered by both CFATS and ATFs regulatory frameworks and relieve compliance burdens for a small number of affected facilities.
DATES: Comments on this ANPRM must be received by March 8, 2021.
ADDRESSES: You may submit comments, identified by docket number CISA
20200014 through the Federal eRulemaking Portal available at http
www.regulations.gov. Follow the instructions for submitting comments.
Instructions: All comments received via https www.regulations.gov will be posted to the public docket at https
www.regulations.gov, including any personal information provided.
Do not submit comments that include trade secrets, confidential commercial or financial information, Chemicalterrorism Vulnerability Information CVI, Protected Critical Infrastructure Information PCII, or Sensitive Security Information SSI directly to the public
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regulatory docket. Contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section below with questions about comments containing such protected information.
CISA will not place comments containing such protected information in the public docket and will handle them in accordance with applicable safeguards and restrictions on access.
Additionally, CISA will hold them in a separate file to which the public does not have access and place a note in the public docket that CISA has received such protected materials from the commenter. If CISA receives a request to examine or copy this information, CISA
will treat it as any other request under the Freedom of Information Act FOIA, 5 U.S.C. 552, and the Departments FOIA regulation found in part 5 of Title 6 of the Code of Federal Regulations CFR.
Docket: For access to the docket and to read comments received visit http
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Lona Saccomando, 703 6034868, CISARulemaking@cisa.dhs.gov.
SUPPLEMENTARY INFORMATION:
I. Regulatory Information CISA is issuing this Advance Notice of Proposed Rulemaking ANPRM to solicit comments on the advisability of removing Division 1.1 explosives from Appendix A to the Chemical Facility Anti-Terrorism Standards CFATS
regulations located at 6 CFR part 27. As described below, we believe that these regulations may be unnecessarily burdensome for facilities that are already subject to security regulations for the same chemicals by another Federal agency, ATF. We encourage comments describing the nature of compliance operations in cases where regulatory duplication and overlap may exist, as well as on the costs and benefits of CFATS-specific security measures.
II. Background CISAs CFATS program is an important part of our nations counterterrorism efforts. The agency works with industry stakeholders to keep dangerous chemicals out of the hands of persons or organizations who wish to harm the United States. Since the CFATS program was created, the Department of Homeland Security
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DHS 1 has engaged with industry representatives to identify high-risk chemical facilities to ensure security measures are in place to reduce the risks associated with their possession of Chemicals of Interest COI listed on Appendix A to the CFATS regulations.
The progress made in securing high-risk chemical facilities through the CFATS
program since its implementation has significantly enhanced the security of the nations chemical infrastructure.
The CFATS program identifies chemical facilities of interest and regulates the security of high-risk chemical facilities through risk-based performance standards.2 The COI are listed in Appendix A to the CFATS
regulations. If chemical facilities of interest possess the COI in the amounts and concentrations listed in Appendix A, chemical facilities of interest must complete and submit a Top-Screen survey to CISA.3 CISA evaluates the information submitted in a Top-Screen and performs a risk assessment. Based upon this risk assessment, CISA
determines which chemical facilities of interest qualify as high risk and are subject to full coverage under CFATS.
Each of these covered chemical facilities is assigned a tier that ranges from Tier 1 the highest risk of the high-risk covered chemical facilities to Tier 4
the lowest risk of the high-risk covered chemical facilities.4 A facility that is determined to present a high-risk is required to develop and submit a Site Security Plan SSP addressing 18 riskbased performance standards containing physical security, cybersecurity, and various other security-focused measures and procedures.
On November 20, 2007, DHS
published a list of COI in Appendix A
to 6 CFR part 27.5 The final version of 1 We note that CISA was created in 2018, and that the CFATS program was previously run by an element of the Department of Homeland Security with a different name. In this document, we refer to CISA when describing present-day actions, and DHS when referring to actions that took place prior to 2018.
2 The Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 also known as the CFATS Act of 2014, Public Law 113254
codified the CFATS program into the Homeland Security Act of 2002. See 6 U.S.C. 621 et seq., as amended by Public Law 116136, Sec. 16007
2020.
3 See 6 CFR 27.200b2.
4 See 6 CFR 27.220.
5 Appendix A to the CFATS Final Rule, 72 FR
65396, 6542065434 Nov. 20, 2007.

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