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Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Proposed Rules
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Appendix A included 49 chemicals that the Department of Transportation DOT
lists as Class 1, Division 1.1 explosives at 49 CFR 172.101, with two broad exceptions.6 Appendix A classifies all Division 1.1 explosives as posing both Release-Explosive and Theft/diversionExplosives/Improvised Explosive Device Precursor Theft/diversion-EXP/
IEDP security issues.
DHS included Division 1.1 explosives in Appendix A notwithstanding the Department of Justices ATF regulation of the purchase, possession, storage, and transportation of the same types of explosives.7 In an ANPRM that preceded the promulgation of the CFATS regulations and Appendix A, DHS noted that the authorizing statute 8
for CFATS excluded many types of facilities that were already the subject of existing federal security regulations.9
This suggested a possibility of regulatory overlap between CFATS and ATF regulatory programs. DHS stated that where there is concurrent jurisdiction between DHS and ATF or another Federal agency, the Department will work closely with other Federal agencies e.g., ATF to ensure that regulated facilities can comply with applicable regulations while minimizing any duplication. 10
Division 1.1 explosives included in Appendix A are explosive materials as defined in 18 U.S.C. 841c and are subject to ATF regulation. ATF
regulations require persons storing any explosives to follow certain safety and theft-prevention precautions, including specific requirements governing the secure storage of explosives and inspection of magazines.11 While ATF
regulations and CFATS regulations are both geared towards preventing the theft and release of explosive materials, the two agencies do not regulate facilities in a similar manner, which can potentially lead to additional security efforts and regulatory compliance burdens for Division 1.1 explosives. The business premises of an explosives licensee or permittee is subject to entry by ATF for the specific purpose of inspective or examining records and documents 6 These exceptions include explosives which DOT uses a generic shipping name with the suffix N.O.S. or not otherwise specified, and articles or devices listed on DOTs Hazardous Materials Table at 49 CFR 172.101. See 75 FR at 6540203.
7 See 27 CFR part 555, subpart C.
8 See Public Law 109295, sec. 550 Oct. 4, 2006
codified as amended at 6 U.S.C. 6213B and 4.
9 See Chemical Facility Anti-Terrorism Standards;
Advance Notice of Rulemaking, 71 FR 78276, 78290
Dec. 28, 2006.
10 See Chemical Facility Anti-Terrorism Standards; Interim Final Rule, 72 FR 17688, 17718
19 Apr. 9, 2007.
11 See 27 CFR part 555, subpart K.

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required to be kept by a licensee or permitee pursuant to 18 U.S.C. chapter 40 and its implementing regulations, as well as any explosive materials kept or stored at the premises.12 While magazines in which explosive materials are stored must meet standards of public safety and security against theft as provided in 27 CFR part 555, subpart K, ATF may not require additional measuressuch as those described above in the CFATS regulationsto address security risks or vulnerability to terrorist attack or incident of a business premises when issuing a new or renewal license or permit.13
CFATS and ATF regulations differ substantially, and the interaction between them can be complex. In many instances, compliance with the measures required to comply with ATF
regulations and industry best practices result in some facilities not tiering as high-risk under CFATS. Therefore, this small portion of facilities has no additional regulatory obligations under CFATS after submission of a TopScreen. For example, all explosives must be stored in compliance with ATF
standoff-distance 14 and similar requirements, which mitigate the consequences of an explosion at the facility. The consequences from an explosion is a factor that CISA uses to determine whether a facility is highrisk. Because facilities that possess threshold quantities of release-explosive COI are required to comply with ATF
standoff/storage regulations, CISA has never designated a facility as high risk on the basis that the facility contains COI classified as a release-explosives threat.
While the above is an example of a way in which CFATS and ATF
regulations dovetail effectively, sometimes the regulations do not correspond so cleanly. For example, a small number of facilities, despite adhering to ATF regulations regarding the secure storage of explosive materials,15 have been: 1 Considered high-risk under CFATS as a result of possession of explosives under the theft/diversion security issue, and 2
required to implement additional security measures to satisfy CFATS
requirements, such as implementing 12 See
18 U.S.C. 843f and 27 CFR 555.24.
18 U.S.C. 843 and 27 CFR part 555, subparts D and E.
14 Standoff distance refers to the requirement that explosive materials be stored a prescribed distance away from inhabited buildings, public highways, other magazines, and other infrastructure. See 27 CFR 555.218224.
15 See 27 CFR part 555, subpart K.
13 See
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cybersecurity and detection mechanisms.
The partial regulatory overlap has led to frustration among some stakeholders in the explosives community and has led CISA to conduct a comprehensive review of the respective programs regulatory requirements. As a result, CISA is considering modifications to Appendix A to remove Division 1.1
explosive chemicals from the COI listed in Appendix A.
III. Discussion It is the policy of the executive branch to prudently manage the costs associated with governmental imposition of private expenditures required to comply with Federal regulations.16 Agencies have long been charged to avoid regulations that are inconsistent, incompatible, or duplicative with their other regulations or those of other Federal agencies. 17 Given these and other polices, and given the partial overlap between DHS and ATF regulations on Division 1.1 explosives, as well as the relatively small number of facilities subject to this overlap, CISA is reconsidering whether to regulate facilities that possess explosives subject to ATF regulations is prudent and financially responsible in the expenditure of funds, from both public and private sources.
At this time, CISA is considering whether the elimination of the burden of dual regulation of Division 1.1
explosive chemicals between CISA and ATF programs could be warranted. To this end, CISA is soliciting comments on amending Appendix A to remove all Division 1.1 explosives from the list of COI listed in Appendix A. If Appendix A is so amended, facility operators would no longer be required to count Division 1.1 explosives when determining whether their facilities are subject to the Top-Screen requirements pursuant to 6 CFR 27.200.
At the time of the promulgation of CFATS, DHS believed that the increased security value of having high-risk facilities that possessed Division 1.1
explosives regulated under CFATS was worth the increased cost. In 2007, DHS
distinguished its approach from the deference that the Environmental Protection Agency EPA had shown ATF regulations by noting that EPAs decisions were based on safety and the prevention of an accidental release and that DHS is concerned with an 16 Exec. Order No. 13,771, Sec. 1., 82 FR 9339 at 9339 Feb. 3, 2017.
17 Exec. Order No. 12,866, Sec. 1b10, 58 FR
51735 Oct. 4, 1993.

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