[Federal Register Volume 72, Number 223 (Tuesday, November 20, 2007)]
[Rules and Regulations]
[Pages 65396-65435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5585]
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Part II
Department of Homeland Security
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6 CFR Part 27
Appendix to Chemical Facility Anti-Terrorism Standards; Final Rule
Federal Register / Vol. 72 , No. 223 / Tuesday, November 20, 2007 /
Rules and Regulations
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DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 27
[DHS-2006-0073]
RIN 1601-AA41
Appendix to Chemical Facility Anti-Terrorism Standards
AGENCY: Department of Homeland Security.
ACTION: Final rule.
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SUMMARY: This final rule revises the list of chemicals of interest, or
COI, which the Department of Homeland Security (DHS or the Department)
included as Appendix A to the Chemical Facility Anti-Terrorism
Standards Interim Final Rule. Appendix A lists chemicals of interest
and screening threshold quantities, or STQs. Any facility that
possesses (or later comes into possession of) the listed chemicals in
quantities that meet or exceed the STQ for any applicable security
issue must complete and submit a Top-Screen. This will assist the
Department in determining whether a facility presents a high level of
security risk.
In this final rule, DHS, among other things: (i) Adjusts the STQs
for certain COI; (ii) defines the specific security issue or issues
implicated by each chemical of interest, and in some cases, establishes
different STQs for COI based upon the security issue presented; and
(iii) adds provisions that instruct facilities on how to calculate the
quantities of COI that they have in their possession.
These refinements to Appendix A will assist the Department in more
precisely identifying facilities that may be designated as high risk,
while reducing the burden on facilities that possess chemicals in
smaller amounts.
EFFECTIVE DATES: The effective date of Appendix A to part 27, as added
on April 9, 2007 (72 FR 17688) and revised by this rule is November 20,
2007. Additionally, the regulations published in this document are
effective November 20, 2007. The incorporation by reference of certain
publications listed in the rule is approved by the Director of the
Federal Register as of November 20, 2007.
FOR FURTHER INFORMATION CONTACT: Marybeth Kelliher, Chemical Security
Compliance Division, Department of Homeland Security, 703-235-5263.
SUPPLEMENTARY INFORMATION: Note that for brevity, all references to CFR
parts will be to parts in Title 6 of the Code of Federal Regulations (6
CFR), unless otherwise noted.
Table of Contents
I. Background
II. The Final Rule: The Revised List of Chemicals
A. Overall Approach to Appendix A
B. Effect of a Final Appendix A
C. Provisions by Security Issue
1. Release-Toxics and Release-Flammables
2. Release-Explosives
3. Theft/Diversion-Chemical Weapons/Chemical Weapons Precursors
4. Theft/Diversion-Weapons of Mass Effect
5. Theft/Diversion-Explosives/Improvised Explosive Device
Precursors
6. Sabotage/Contamination
D. Chemicals With a Specialized Approach
1. Propane
2. Chlorine
3. Ammonium Nitrate
E. Technical Corrections
III. Discussion of Comments
A. Specific Chemicals or Types of Chemicals
1. In General
2. Propane
3. Chlorine
4. Ammonium Nitrate
5. Acetone and Urea
6. Chemical Weapons and Chemical Weapons Precursors
7. Explosives
8. Hydrogen Peroxide
B. Coverage of Appendix A
1. Colleges and Universities
2. Medical Research Organizations and Similar Laboratories
3. Farms and the Agricultural Industry; Fumigation Industry
4. Overlap With Other Federal Entities
5. Concerns About Being Over-Inclusive
C. Screening Threshold Quantities
1. In General
2. Modifying the ``Any Amount'' STQ
3. Mixtures and Solutions
D. Revisions to the COI List
1. Technical Corrections
2. Formatting and Approach
E. Other Comments
1. Procedural Issues
2. Compliance Issues
3. Miscellaneous Comments
IV. Regulatory Analyses
A. Executive Order 12866: Regulatory Planning and Review
B. Regulatory Flexibility Act
Abbreviations and Terms Used in This Document
ACG--A Commercial Grade
AN--Ammonium Nitrate
APA--A Placarded Amount
ASP--Alternative Security Program
CAS--Chemical Abstract Service
CGA--Compressed Gas Association
COI--Chemicals of Interest
CSAC--Chemical Security Analysis Center
CSAT--Chemical Security Assessment Tool
CUM 100g--Cumulative STQ of 100 grams for Designated Chemical
Weapons
CVI--Chemical-terrorism Vulnerability Information
CW--Chemical Weapons
CWC--Chemical Weapons Convention
CWP--Chemical Weapons Precursors
DOT--U.S. Department of Transportation
EPA--Environmental Protection Agency
EXP--Explosives
FBI--Federal Bureau of Investigation
IED--Improvised Explosive Device
IEDP--Improvised Explosive Device Precursors
LNG--Liquefied Natural Gas
NFPA--National Fire Protection Association
NOS--Not Otherwise Specified
NPGA--National Propane Gas Association
RMP--EPA's Risk Management Program
SVA--Security Vulnerability Assessment
SSP--Site Security Plan
STQ--Screening Threshold Quantity
TQ--Threshold Quantity
TSA--Transportation Security Administration
VBIED--Vehicle-Borne Improvised Explosive Device
WME--Weapon of Mass Effect
I. Background
On October 4, 2006, President George W. Bush signed the Department
of Homeland Security Appropriations Act of 2007 (the Act), which
provided the Department of Homeland Security with the authority to
regulate the security of high risk chemical facilities. See Pub. L.
109-295, Sec. 550. Section 550 required the Secretary of Homeland
Security to promulgate interim final regulations ``establishing risk-
based performance standards for security of chemical facilities'' by
April 4, 2007 and specified that the regulations ``shall apply to
chemical facilities that, in the discretion of the Secretary, present
high levels of security risk.'' Id.
Pursuant to Section 550, on December 28, 2006, the Department
issued an Advance Notice of Rulemaking (Advance Notice), which
discussed a range of regulatory and implementation issues. See 71 FR
78276. By directing the Secretary to issue ``interim final
regulations,'' Congress authorized the Secretary to proceed without the
traditional notice and comment required by the Administrative Procedure
Act. See 71 FR 78276, 78277. The Department, however, saw great benefit
in soliciting comments on as much of the program as was practicable in
the short timeframe permitted under the statute and therefore
voluntarily sought comment on the Advance Notice, including a range of
significant programmatic issues and regulatory text.
On April 9, 2007, the Department issued an Interim Final Rule
(IFR), which responded to the comments to the Advance Notice and
established a new part 27 to Title 6 of the Code of Federal
Regulations. See 72 FR 17688. Part 27 establishes risk-based
performance standards for the security of our Nation's chemical
facilities. The rule requires covered chemical facilities to prepare
Security Vulnerability Assessments (SVAs) that identify
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facility security vulnerabilities. The rule also requires covered
chemical facilities to develop and implement Site Security Plans (SSPs)
that identify measures that satisfy the identified risk-based
performance standards. It also allows certain covered chemical
facilities, in specified circumstances, to submit Alternate Security
Programs (ASPs) in lieu of an SVA, SSP, or both. In addition, the rule
contains associated provisions addressing inspections and audits,
recordkeeping, and the protection of information that constitutes
Chemical-terrorism Vulnerability Information (CVI). Finally, the rule
provides the Department with authority to compel compliance through the
issuance of orders, including orders assessing civil penalties and
orders to cease operations.
The IFR, except for Appendix A to part 27, went into effect on June
8, 2007. Appendix A contained a tentative list of Chemicals of Interest
(COI). DHS accepted comments on the tentative list of chemicals in
Appendix A (hereafter referred to as proposed Appendix A or proposed
appendix) for 30 days until May 9, 2007. With this final rule, the
Department responds to those comments and provides a final list of
Chemicals of Interest in Appendix A. The same principles that guided
the Department during the development of the proposed list have guided
the Department during the development of this revised list, and those
main principles are summarized here. First, DHS did not use any single,
existing list as its sole source or classify all chemicals on any
existing list in a particular way. Instead, DHS used multiple sources,
so that it could obtain a more complete picture of the universe of
facilities that may qualify as high risk. Second, in identifying the
chemicals and STQs for chemicals, the Department sought to strike an
appropriate balance: Sufficiently inclusive of chemicals in quantities
that might present a high level of risk under the statute without being
overly inclusive and thereby capturing facilities that are unlikely to
present a high level of risk. Third, the Department has identified
chemicals by considering security issue(s) associated with a chemical.
The Department has identified the COI for preliminary screening based
on the belief that these chemicals, if released, stolen or diverted,
and/or contaminated, have the potential to create significant human
life and/or health consequences.
II. The Final Rule: The Revised List of Chemicals
A. Overall Approach to Appendix A
While the universe of chemicals in Appendix A has remained
substantially the same, the Department has re-structured the format of
the appendix and has more clearly defined the provisions associated
with these chemicals. The Department has included a considerable amount
of additional information in the appendix as well as some new
provisions to the regulatory text. The changes that the Department has
made have come directly from comments or otherwise logically resulted
from comments where DHS agreed that the comments raised valid points
and were within the scope of the proposed appendix.
The proposed appendix listed only a chemical and a corresponding
Chemical Abstract Service (CAS) number,\1\ however the final appendix
includes that information as well as a new column with commonly-used
synonyms for certain chemicals. The final appendix also adds several
new columns that identify the security issue(s) associated with each
chemical of interest (COI).\2\ In addition, the Department has assigned
an STQ and minimum concentration provision to each chemical of
interest. The final appendix, unlike the proposed appendix, does not
trigger reporting obligations based on possession of an STQ of ``any
amount.'' \3\
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\1\ CAS numbers are unique identifiers for chemical substances.
\2\ The Department has added definitions for Chemical of
Interest (COI) and Security Issue to Sec. 27.105 ``Definitions.''
\3\ See footnote 64.
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In the final appendix, the Department has listed the security
issue(s) associated with each chemical of interest. Although these same
security issues drove the Department's selection of chemicals for
inclusion in the proposed appendix, the Department did not list (in the
proposed appendix) the security issue(s) for each particular chemical.
This additional information provides guidance to regulated entities, so
that they better understand how to use the appendix, and it explains
the Department's rationale(s) for including these chemicals, at these
STQs, on the list.
The seven columns on the far right of the appendix contain the
chemical facility security issues that the Department has identified
for this appendix. There are three main categories of security issues:
Release, theft/diversion, and sabotage/contamination.\4\ Two categories
have three subcategories each. The ``release'' category has three
subcategories: (1) Release-Toxic: Chemicals with the potential to
create a toxic cloud that would affect populations within and beyond
the facility, if intentionally released; (2) Release-Flammables:
chemicals with the potential to create a vapor cloud explosion that
would affect populations within and beyond the facility, if
intentionally released; and (3) Release-Explosives: chemicals with the
potential to affect populations within and beyond the facility if
intentionally detonated. The ``theft and diversion'' category also has
three subcategories: (1) Theft/Diversion-Chemical Weapons (CW)/Chemical
Weapons Precursors (CWP): chemicals that could be stolen or diverted
and used as CW or easily converted into CW; (2) Theft/Diversion-Weapons
of Mass Effect (WME): chemicals that could be stolen or diverted and
used directly as WME; and (3) Theft/Diversion-Explosives (EXP)/
Improvised Explosive Device Precursors (IEDP): chemicals that could be
stolen or diverted and used in explosives or IEDs. The third category,
``sabotage/contamination,'' refers to those chemicals that, if mixed
with other readily-available materials, have the potential to create
significant adverse consequences for human life or health.
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\4\ As noted in the IFR and consistent with the definition of
``security issue'' in Sec. 27.105, the Department recognizes one
additional security issue--critical to government mission and
national economy. (DHS has added a definition of security issue in
this final rule at Sec. 27.105.) The loss or interruption in
production of certain chemicals, materials, or facilities could
create significant adverse consequences for national security, the
national or regional economy, and/or the ability of the government
to deliver essential services. The Department plans to assess
currently-available information and to collect new information
(e.g., through the Top-Screen process) as a means of identifying
facilities responsible for these types of chemicals. At this time,
DHS is not including any chemicals in the appendix based on this
security issue, though it may do so in the future.
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The Department has established baseline STQs for the chemicals of
interest for each security issue. (DHS discusses the baselines in this
preamble and also summarizes the general rules in Table 1: ``Summary of
General Rules by Security Issue'' at the end of this section). DHS has
set the STQ for each chemical of interest at the baseline amount for
that chemical's security issue(s). Where necessary, the Department has
identified a few exceptions. Most notably, DHS has developed a
specialized approach for propane, chlorine, and ammonium nitrate.
Each chemical in Appendix A presents at least one security issue,
and
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some chemicals present multiple security issues. Where there are
multiple issues associated with a chemical, a facility must complete
and submit a Top-Screen if it meets or exceeds the STQ for any of the
applicable security issues. For example, there are two security issues
associated with arsenic trichloride: release-toxic and theft/diversion-
CW/CWP. In the Security Issue columns of the appendix, there is a mark
in the box for release-toxic and for theft/diversion-CW/CWP, and there
is a STQ (and minimum concentration) listed under the Release column
and under the Theft column. If the facility meets or exceeds the STQ
listed in either the Release column or the Theft column (using the
appropriate calculation provisions discussed below), the facility must
complete and submit a Top-Screen. The Department has revised the
regulatory text in Sec. 27.200(b)(2) and Sec. 27.210(a)(1)(i) to
reflect this change.
The Department will periodically update the list of chemicals in
Appendix A and will do so subject to notice and comment. The Department
may add or remove chemicals, or categories of chemicals, or may change
STQs based on new or additional information.
In revising Appendix A, the Department has found it necessary to
revise the regulatory text, clarifying how facilities should use the
appendix. The Department added Sec. 27.203, which instructs facilities
on how to calculate the STQ for a given chemical and Sec. 27.204,
which addresses mixtures. In this section of the preamble, DHS
discusses provisions that are general or that apply to multiple
security issues. DHS discusses provisions related to specific security
issues in section II(C).
Section 27.203(a) provides specific exclusions from the calculation
requirements that apply to chemicals of interest in all security issue
categories. Facilities need not count chemicals of interest covered by
these exclusions, because chemicals in such circumstances or forms are
unlikely to contribute to the potential consequences of a successful
attack. DHS has adopted several of these exclusions from the
Environmental Protection Agency's (EPA) Risk Management Program (RMP)
regulation. Sections 27.203(a)(1)-(5), (6), and (8) track the EPA
exemptions in 40 CFR 68.115(b)(4)(i)-(iv), 68.115(b)(3), and
68.115(b)(2)(iii), respectively. The concepts are the same, though DHS
has adjusted the language to make it consistent with the language in
part 27 (e.g., whereas EPA considers TQs present at a ``stationary
source,'' DHS considers STQs at a ``facility''). Note that EPA applies
these exemptions to release chemicals (i.e., those which it regulates
under RMP), while DHS applies these exclusions to all part 27 chemicals
of interest (i.e., to all chemicals associated with the security issues
of release, theft/diversion, and sabotage/contamination).
DHS has formulated one other exclusion specifically for this
regulation. In Sec. 27.203(a)(7), DHS exempts chemicals of interest in
solid waste (including hazardous waste) regulated under the Resource
Conservation and Recovery Act (RCRA) (42 U.S.C. 6901 et seq.) DHS does
not believe that it is necessary for facilities to count COI in RCRA-
regulated solid waste toward their STQ, because the Department does not
believe that this waste is a likely target of a terrorist attack or
contains COI that are likely sources of terrorist uses. As stated in
the regulatory text, though, this exclusion does not apply to waste
covered by 40 CFR 261.33, ``Discarded commercial chemical products,
off-specification species, container residues, and spill residues
thereof.'' This type of waste can include virtually pure chemicals
(including off-specification products that may merely be inconsistent
with a customer's specifications) that have been discarded. DHS thinks
it is important for facilities to include this waste in the STQ
calculation, because this waste is a potential source of COI that would
be just as attractive to a terrorist as the chemical product itself.
Paragraph (b) of Sec. 27.203 addresses STQ calculations related to
release chemicals. Section 27.203(b)(1) provides instructions
concerning the substances that facilities shall include when
determining whether they possess quantities of a release chemical that
meet or exceed the STQ. Proposed Appendix A did not contain the
instructions enumerated in Sec. 27.203(b)(1), but further
consideration and a review of the comments caused DHS to provide these
instructions. Pursuant to Sec. 27.203(b)(1)(i), facilities must
include chemicals in a vessel, which, pursuant to 40 CFR 68.3, ``means
any reactor, tank, drum, barrel, cylinder, vat, kettle, boiler, pipe,
hose, or other container.'' Facilities must also include chemicals of
interest stored in magazines, as defined in 27 CFR 555.11. Pursuant to
that Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
definition, a magazine is ``any building or structure, other than an
explosives manufacturing building used for storage of explosive
materials.'' In addition, facilities must include chemicals of interest
in underground storage facilities. For purposes of part 27, an
underground storage facility refers to a below-ground storage location
for chemicals of interest or mixtures of chemicals of interest (e.g.,
petroleum-based materials) that are placed in the storage location
(until needed) after having been extracted from the ground and refined
or processed. Such facilities include, but are not limited to, depleted
reservoirs in oil and/or oil gas fields, aquifers, and salt cavern
formations. DHS understands that certain products (e.g., propane,
natural gas, petroleum) may be stored in these underground storage
facilities, and DHS wants to ensure that facilities count this material
toward the amount of their COI.
Pursuant to Sec. 27.203(b)(1)(ii), facilities must count chemicals
of interest in specified transportation containers toward the STQ
amount for release chemicals. In using this terminology, DHS is
referring to the same category of transportation containers that EPA
refers to in its RMP regulation--that is, transportation containers
used for storage not incident to transportation, including
transportation containers connected to equipment at a facility for
loading or unloading and transportation containers detached from the
motive power that delivered the container to the facility. See 40 CFR
68.3 (containing a description of transportation containers within the
definition of ``stationary source''). These transportation containers
would include, for example, tank cars attached to processing units and
tank cars detached from motive power that had delivered the tank car to
the facility.
While the EPA RMP regulation at 40 CFR 68.3 does not specifically
mention transportation containers detached from the motive power, EPA
discusses such provision in its Final Rule titled ``List of Regulated
Substances and Thresholds for Accidental Release Prevention;
Amendments'' \5\ and in its Frequently Asked Questions on the EPA Web
site.\6\ Part 27 (like EPA's RMP regulation) does not require
facilities to include chemicals of interest in transportation when
calculating their STQs. DHS adopts the EPA definition of
transportation, and accordingly considers a container to be in
transportation as long as it is attached to the motive power (e.g.,
truck or locomotive) that delivered it to the site. If the tank car is
detached from the motive power, and therefore no longer in
transportation, the facility must
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consider the contents of the tank car in calculating its STQ.
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\5\ See 63 FR 640 (January 6, 1998).
\6\ See FAQ II.C.2 on the EPA Web site at http://yosemite.epa.gov/oswer/ceppoweb.nsf/content/caa-faqs.htm.
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Pursuant to Sec. 27.203(b)(1)(iii), facilities must also include
chemicals of interest that are present as process intermediates, by-
products, and incidental production materials. This means, for example,
that a refinery must count toward the STQ for hydrogen sulfide the
quantity of hydrogen sulfide produced as a by-product of any of its
various processes. Or a facility should count toward the STQ for 37%
hydrochloric acid the quantity of 37% hydrochloric acid produced from
the absorption of hydrogen chloride gas into water and stored
temporarily prior to subsequent dilution below the threshold
concentration. DHS requires the inclusion of these items in calculating
the STQ, because while they may not be present at all times, when
present, they could be released and contribute to the consequences of
an attack.
The remaining two subsections in Sec. 27.203(b)(1) are items that
EPA exempted, but which DHS believes are important to include in this
regulatory program; they have the potential to create a significant
offsite impact in the event of a successful attack. First, when
calculating the amount of a chemical of interest, facilities must
include chemicals in natural gas or liquefied natural gas (LNG) stored
in ``peak shaving facilities.'' See Sec. 27.203(b)(1)(iv). Companies
typically store natural gas or LNG in peak shaving facilities when
demand for product is low or slows. The natural gas or LNG is stored
until it is used later during peak consumption periods. EPA excludes
the chemicals in these peak shaving facilities by virtue of the fact
that EPA considers them storage incident to transportation, and EPA
does not subject that type of storage to its RMP regulation.\7\ Within
DHS, TSA is the lead agency for the security of pipeline transportation
and of transportation-related facilities; however, such facilities
(e.g., peak shaving facilities) may be required to provide information
under part 27. TSA and the Chemical Security Compliance Division will
work together to ensure that DHS efforts directed at pipelines are
complementary.
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\7\ Under the RMP rule, EPA considers there to be a threshold
quantity of a substance if it is present at a stationary source. 40
CFR 68.115(a). ``The term stationary source does not apply to
transportation, including storage incident to transportation, of any
regulated substance * * *.'' 40 CFR 68.3. EPA ``considers the
transportation exemption to include storage fields for natural gas
where gas taken from pipelines is stored during non-peak periods, to
be returned to the pipelines when needed.'' 63 FR 640, 642 (Jan. 6,
1998). Because EPA considers this type of storage incident to
transportation, the type of storage is not subject to EPA's RMP
rule.
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Second, facilities must also include chemicals of interest in fuels
when stored in above-ground tank farms, including tank farms that are
part of pipeline systems. See Sec. 27.203(b)(1)(v). This includes
fuels with any one of the four National Fire Protection Association
(NFPA) flammability hazard ratings and not just fuels with an NFPA
flammability hazard rating of 4. EPA excludes these fuels by virtue of
the provisions in its mixtures rule for regulated flammable substances.
See 40 CFR 68.115(b)(2). These fuels also would have been excluded
under DHS's flammable mixtures provisions (see Sec. 27.204(a)(2) \8\)
except that DHS specifically included these fuels through this
provision here in Sec. 27.203(b)(1)(v), because of concern that they
could create significant human life or health consequences if an
intentional attack by a terrorist were successful.
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\8\ Section 27.204(a)(2) provides that ``except as provided in
Sec. 27.203(b)(1)(v) for fuels that are stored in aboveground tank
farms (including farms that are part of pipeline systems), if a
release-flammable chemical of interest is present in a mixture in a
concentration equal to or greater than one percent (1%), and the
mixture has a National Fire Protection Association (NFPA)
flammability hazard rating of 1, 2, or 3, the facility shall count
the entire weight of the mixture toward the STQ.'' Without the
``exception'' clause, DHS would have excluded these fuels by virtue
of the fact that these fuels are mixtures that likely have NFPA
flammability hazard ratings of 1, 2, and 3. Pursuant to Sec.
27.204(a)(2), facilities need not count the entire amount of these
mixtures (i.e., mixtures with COI present in a concentration equal
to or greater than one percent (1%) and with a flammability hazard
rating of 1, 2, or 3) toward the STQ.
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In Sec. 27.203(c), DHS provides that facilities shall only count
theft/diversion chemicals of interest that are in a transportation
packaging. DHS has adopted the Department of Transportation (DOT)
definition of packaging, which refers to ``a receptacle and any other
components or materials necessary for the receptacle to perform its
containment function in conformance with the minimum packing
requirements of [DOT's Hazardous Materials Regulations].'' See 49 CFR
171.8. This includes, but is not limited to, cylinders, bulk bags,
bottles inside or outside of a box, cargo tanks, and tank cars. DHS has
focused the universe of theft/diversion chemicals of interest in this
fashion, because the theft/diversion security issue revolves around
portable and transportable amounts of certain chemicals. DHS is
concerned about both the theft of portable amounts of these chemicals
and the diversion of shipments of these chemicals.
The Department has also added Sec. 27.204, which addresses
mixtures. It provides a minimum concentration provision for each
security issue. The Department included this provision in response to
commenters, who requested guidance on how to treat mixtures of
chemicals of interest. See Sec. 27.204. A facility must count toward
the STQ for a given chemical all quantities of that chemical that meet
or exceed the listed minimum concentration amount. These minimum
concentration provisions are derived from existing federal regulatory
programs (including EPA's RMP program and the Department of Commerce's
Chemical Weapons Convention (CWC)) Regulations, as well as from
industry technical standards (see, e.g., Standard for Classification of
Toxic Gas Mixtures, CGA P-20-2003). The specific minimum concentration
provision for each security issue is discussed in the sections below.
In calculating chemical amounts, facilities should consider the
chemicals in their possession within the framework for each of the
three separate and distinct security issues categories (release, theft/
diversion, and sabotage/contamination). A facility must count each
chemical of interest in its possession, using the relevant calculation
provisions for each of the categories, and if the facility possesses an
amount that meets or exceeds the STQ for any one of the categories
(i.e., security issues), the facility must complete and submit a Top-
Screen. To illustrate that point, the Department highlights sulfur
dioxide, which is both a release-toxic (STQ: 5,000 pounds) and theft/
diversion-WME (STQ: 500 pounds).
--Toward the release STQ of 5,000 pounds, a facility must count all
quantities of sulfur dioxide in vessels and underground storage
facilities; in transportation containers used for storage not incident
to transportation, including storage containers connected to equipment
at a facility for loading or unloading and storage containers detached
from the motive power that delivered the container to the facility; and
present as process intermediates, by-products, and material produced
incidental to the production of a product if they exist at any given
time.
--Toward the theft/diversion-WME STQ of 500 pounds, a facility must
count all quantities of sulfur dioxide in a transportation packaging.
If the facility has 5,000 pounds or more of sulfur dioxide
aggregated onsite in vessel(s), transportation packaging(s), etc. or
500 pounds or more of sulfur
[[Page 65400]]
dioxide in transportation packagings (or both), the facility must
complete and submit a Top-Screen.
Facilities must consider each security issue framework
independently. As a result, there may be chemicals of interest that a
facility counts under more than one security issue framework. That is
completely appropriate, as there is a different focus (and therefore
distinct counting and mixtures rules) for each security issue. For
example, with respect to sulfur dioxide, a facility will count toward
its release STQ quantities of sulfur dioxide in a tank car when that
tank car is connected to equipment at the facility for loading and
unloading and when that tank car is detached from the motive power that
delivered it to the facility (see Sec. 27.203(b)(1)(ii)) and it will
count toward its theft/diversion-WME STQ quantities of sulfur dioxide
in tank cars (see Sec. 27.203(c)). Under both frameworks (release and
theft), the facility may, in fact, count the same sulfur dioxide. As
there are separate purposes for each framework, however, this is
appropriate. The theft-STQ is focused on preventing someone from
stealing or diverting the shipment of sulfur dioxide in the tank car
and weaponizing it. The release-STQ is focused on preventing someone
from intentionally releasing a quantity of sulfur dioxide that could
affect the population within and beyond the facility.
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\9\ Specialized STQs apply to ammonium nitrate, chlorine, and
propane.
Table 1.--Summary of General Rules by Security Issue
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Minimum
Security issue STQ \9\ COI to exclude COI to include concentration
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Release--Toxic..................... 500-20,000 lbs....... 27.203(a) 27.203(b)(1) 27.204(a)(1)
27.203(b)(2) 27.204(a)(1)
Release--Flammable................. 10,000 lbs........... 27.203(a) 27.203(b)(1) 27.204(a)(2)
27.203(b)(2) 27.204(a)(2)
27.203(b)(3)
Release--Explosive................. 5,000 lbs............ 27.203(a) 27.203(b)(1) 27.204(a)(3)
Theft/Diversion--CW/CWP............ CUM 100 grams-220 lbs 27.203(a) 27.203(c) 27.204(b)(1)
Theft/Diversion--WME............... 15-500 lbs........... 27.203(a) 27.203(c) 27.204(b)(2)
Theft/Diversion--EXP/IEDP.......... 100-400 lbs.......... 27.203(a) 27.203(c) 27.204(b)(3)
Sabotage/Contamination............. A Placarded Amount... 27.203(a) 27.203(d) 27.204(c)
----------------------------------------------------------------------------------------------------------------
B. Effect of a Final Appendix A
Under Section 550, the Department has the authority to use its best
judgment and all available information in determining whether a
facility presents a high level of security risk. Appendix A will assist
the Department in determining which facilities present a high level of
security risk. In Appendix A, the Department has identified chemicals
of interest (at specified STQs) that trigger preliminary screening
requirements. If a facility possesses a chemical of interest at or
above the STQ for any applicable security issue, the facility must
complete and submit a Chemical Security Assessment Tool (CSAT) Top-
Screen. The STQ is not the threshold for establishing whether a given
facility is a high risk facility, but it is a threshold for determining
whether the facility must complete and submit a Top-Screen.
Only after the Department gathers additional information through
the Top-Screen process will the Department make a determination \10\ as
to whether a facility presents a high level of security risk and
therefore must comply with the substantive requirements in part 27.
Accordingly, the presence or amount of a particular chemical is not the
sole factor in determining whether a facility presents a high level of
security risk; it is not the only indicator of a facility's coverage
under part 27.
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\10\ Based on the information the Department receives in
accordance with Sec. 27.200 and Sec. 27.205 (including information
submitted through the Top-Screen), the Department makes a
preliminary determination as to a facility's placement in a risk-
based tier. See Sec. 27.220(a). Following review of a covered
facility's Security Vulnerability Assessment (SVA), the Department
makes a final determination as to a facility's placement in a risk-
based tier. See Sec. 27.220(b).
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Sections 27.200(b)(2) and 27.210 contain the requirements related
to Appendix A, and those requirements are fully operative upon
publication of this final rule in the Federal Register. Section
27.200(b)(2) requires facilities to complete and submit a Top-Screen if
they possess any of the chemicals identified in Appendix A at or above
the STQ for any applicable security issue. If a facility possesses even
one of the chemicals of interest listed in Appendix A at or above the
applicable STQ, the facility has an obligation to complete and submit a
Top-Screen. Section 27.210(a)(1)(i) provides the initial submissions
schedule for facilities that have to submit a Top-Screen pursuant to
Appendix A.
Pursuant to Sec. 27.210(a), the Department uses two methods to
require facilities to undergo preliminary screening (i.e., complete and
submit a Top-Screen). The first method, found in Sec. 27.210(a)(1)(i),
is linked to Appendix A. From the effective date of a final Appendix A
(i.e., this final rule), facilities that possess any of the chemicals
listed in Appendix A at or above the STQ for any applicable security
issue will have 60 calendar days to complete and submit a Top-Screen to
DHS. Facilities that later come into possession of such chemicals at or
above the STQ for any applicable security issue will have to complete
and submit a Top-Screen within 60 calendar days of coming into
possession of such chemicals. See Sec. 27.210(a)(1)(i). In addition,
covered facilities \11\ have an ongoing obligation to complete and
update the Top-Screen as provided in Sec. 27.210(d). Covered
facilities that make material modifications to their operations or site
must complete and submit a revised Top-Screen within 60 days of the
material modification. See Sec. 27.210(d).
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\11\ As used herein, a ``covered facility'' (or ``covered
chemical facility''), means ``a chemical facility determined by the
Assistant Secretary to present high levels of security risk. * * *''
and differs from a ``chemical facility'' (or ``facility''), which
refers to ``any establishment that possesses or plans to possess, at
any relevant point in time, a quantity of a chemical substance
determined by the Secretary to be potentially dangerous or that
meets other risk-related criteria identified by the Department.''
See Sec. 27.105. Although DHS will require many facilities to
complete and submit a Top-Screen, DHS will only require covered
facilities to develop a chemical facility security program (i.e.,
complete a SVA pursuant to Sec. 27.215, develop and implement a SSP
pursuant to Sec. 27.225, etc.).
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The second method, found in Sec. 27.210(a)(1)(ii), allows the
Department to contact facilities independently of
[[Page 65401]]
Appendix A. Facilities must complete and submit a Top-Screen if the
Department notifies the facility to do so through a Federal Register
notice or on an individual basis through written notification. The
Department may choose to contact facilities in this manner based on new
or additional information or based on intelligence information about
terrorists' interest in certain chemicals or certain facilities. The
Department will specify the time frame for these Top-Screen submissions
in the written notification. Since the effective date of the IFR, the
Department has used the second method (i.e., contacting certain
facilities individually and directing them to complete the Top-Screen).
With the publication of this final rule, both triggering requirements
for completing the Top-Screen will be in effect.
C. Provisions by Security Issue
1. Release-Toxics and Release-Flammables
a. Chemicals
To identify the release chemicals for Appendix A, the Department
looked to the list of substances in the EPA's RMP rule.\12\ See Tables
1 and 2 to 40 CFR Sec. 68.130 for release-toxics and Tables 3 and 4 to
40 CFR 68.130 for release-flammables. The Department had included all
of the EPA RMP substances in proposed Appendix A,\13\ and aside from
the exceptions noted below, continues to do so in this final appendix.
For release-toxics, the Department uses the same listing criteria,
including the EPA acute toxicity criteria and vapor pressure cut-off,
which can be found in EPA's final rule, ``List of Regulated Substances
and Threshold for Accidental Release Prevention; requirements for
Petitions Under Section 112(r) of the Clean Air Act as Amended.'' See
59 FR 4478, 4482 (January 31, 1994). EPA includes a toxic substance on
its RMP list if the substance is an acute toxic that has vapor pressure
high enough that the release could result in an offsite poisonous
inhalation hazard.
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\12\ The Clean Air Act (42 U.S.C. 7401, et seq.) provides that
the EPA shall promulgate a list of substances that ``in the case of
accidental release, are known to cause or may reasonably be
anticipated to cause death, injury, or serious adverse effects to
human health or the environment.'' See 42 U.S.C. 7412(r)(3).
\13\ Note that some of these chemicals present not only a
release issue, but present additional security issue(s) too (e.g.,
theft and diversion or sabotage and contamination).
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In this final appendix, the Department has removed three release-
toxic chemicals \14\ that it had included in the proposed appendix.
While these three toxic chemicals appear on EPA's RMP list, they do not
meet the RMP listing criteria for vapor pressure. EPA included these
three chemicals in their RMP list, because Congress specifically
required their inclusion pursuant to Sec. 7412(r)(3) of the Clean Air
Act, 42 U.S.C. 7401 et seq.\15\ Because these chemicals do not
otherwise meet the RMP listing criteria for toxic chemicals, DHS has
removed them from Appendix A.
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\14\ The three release-toxics are: Toluene 2,4-diisocyanate;
Toluene 2,6-diisocyanate; and Toluene diisocyanate (unspecified
isomer).
\15\ In 42 U.S.C. Sec. 7412(r)(3), Congress directed EPA to
include toluene diisocyanate (TDI) in its RMP list. EPA looked to
the types of TDI in commercial production (i.e., those types listed
on the Toxic Substances Control Act Chemical Substance Inventory)
and listed the three forms noted in footnote 14.
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For release-flammable chemicals, DHS also uses the same listing
criteria as EPA does for release-flammable chemicals. EPA, and now DHS,
identifies flammable gases and volatile flammable liquids based on the
flash point and boiling point criteria that the NFPA uses for its
highest flammability hazard ranking (Class IA). The criteria can be
found in EPA's Final List Rule. See 59 FR 4478, 4480 (January 31,
1994).
b. STQ
DHS set the STQ for release-toxics at the same amount that EPA set
the Threshold Quantity (TQ) for toxic substances under its RMP
regulation.\16\ That amount ranges from 500 to 20,000 pounds, depending
on the toxicity and volatility of the substance. Likewise, DHS set the
STQ for release-flammables at the same amount as EPA--10,000 pounds.
The Department has adopted the EPA RMP TQs, because DHS accepts the
same rationale that EPA used when setting its TQs--i.e., that they are
amounts that, if released, have the potential to create significant
human health effects. The Department realizes that, in developing these
TQs, EPA collected extensive input on and conducted a thorough
analysis, and DHS wants to leverage that knowledge base.
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\16\ See 40 CFR part 68.
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Whereas the Department had proposed to set the STQs for these
release chemicals at seventy-five percent of the EPA RMP TQs in the
IFR, the Department has instead set these STQs at the same amount as
the EPA RMP TQs. In doing so, the Department accepted the
recommendation of many commenters to set the STQ for these release
chemicals at, rather than below, the EPA RMP TQs. The Department
realized that it did not need to reduce its STQs to a level below that
of the EPA TQs, because even though DHS and EPA are seeking to satisfy
two different mandates (i.e., DHS to prevent an intentional release and
EPA to prevent an accidental release), DHS has made accommodations for
that difference. The DHS method for calculating an STQ is more
conservative than that of the EPA for TQs. Under part 27, except for
the exclusions listed in Sec. 27.203(a), (b)(2), and (b)(3), a
facility must aggregate the total amount of COI that it possesses at
its facility, including COI that may exist in separate processes. By
contrast, under EPA's RMP regulation, a facility must consider the
total quantity of a regulated substance ``contained in a process'' that
exceeds the TQ. See 40 CFR 68.115(a). For example, a facility that has
multiple processes (involving an RMP substance), with each process
below the threshold for the reportable TQ, would not be covered under
RMP. That facility, however, would be covered under part 27 if the
total quantity of all the processes (associated with a chemical of
interest) was at or above the STQ.
DHS believes that, in the case of an intentional terrorist attack,
chemicals or materials would likely be released from multiple vessels
rather than a single vessel. As a result, the Department believes that
setting the STQ at an amount that reflects the entire inventory of the
facility better captures the potential consequences of an intentional
attack. The Department believes this is more appropriate than EPA's
valid assumption for accidents that the worst-case release \17\ would
be a release from the largest vessel.
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\17\ In 40 CFR 68.3, EPA defines ``worst-case release'' as ``the
release of the largest quantity of a regulated substance from a
vessel or process line failure that results in the greatest distance
to an endpoint defined in Sec. 68.22(a).''
---------------------------------------------------------------------------
Despite the general rule for release chemicals (i.e., that the DHS
STQs are the same as the EPA TQs), there are a few differences between
the EPA TQs and the DHS STQs. First, as discussed below in section
II(D)(1), DHS treats propane differently than all other release-
flammables. Second, the RMP TQ for toxic substances applies to all DHS
release-toxics except for eleven \18\ that meet the RMP listing
criteria for both toxicity and flammability. EPA treats these
substances as toxics in its RMP rule; however, DHS lists these
substances as flammables (and sets the
[[Page 65402]]
STQ at 10,000 pounds), because, in an intentional release, they are
more likely to act like flammables and potentially create an explosive
vapor cloud.
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\18\ The eleven RMP release-toxics are: ethylene oxide, furan,
hydrazine, hydrogen selenide, methyl chloride, methyl mercaptan,
nickel carbonyl, peracetic acid, phosphine, propylene oxide, and
tetranitromethane.
---------------------------------------------------------------------------
In calculating whether a facility meets the STQ for release-toxic
or release-flammable chemicals, the facility need not include release-
toxic or release-flammable chemicals of interest that a facility
manufactures, processes, or uses in a laboratory at the facility under
the supervision of a technically qualified individual as defined in 40
CFR 720.3. See Sec. 27.203(b)(2). DHS adopted this laboratory
quantities exclusion, including the definition of ``technically
qualified individual,'' from EPA. The comparable EPA laboratory
quantities exemption is located in EPA's RMP regulation at 40 CFR
68.115(b)(5), and EPA's definition of ``technically qualified
individual'' is located at 40 CFR 720.3(ee). EPA defines a
``technically qualified individual'' to mean ``a person or persons (1)
who, because of education, training, or experience, or a combination of
these factors, is capable of understanding the health and environmental
risks associated with the chemical substance which is used under his or
her supervision, (2) who is responsible for enforcing appropriate
methods of conducting scientific experimentation, analysis, or chemical
research to minimize such risks, and (3) who is responsible for the
safety assessments and clearances related to the procurement, storage,
use, and disposal of the chemical substance as may be appropriate or
required within the scope of conducting a research and development
activity.'' Like EPA, the DHS laboratory quantities exclusion does not
apply to specialty chemical production; manufacture, processing, or use
of substances in pilot plant scale operations; or activities, including
research and development, involving chemicals of interest conducted
outside the laboratory. Facilities that engage in such activities must
count those chemicals toward their STQ.
DHS believes that, in a release, a lab quantity of a release
chemical would not significantly contribute to the consequentiality of
an attack. Moreover, under this provision, DHS believes that, where lab
quantities of release chemicals are used, there are appropriate
controls by virtue of the fact it is done so under the supervision of a
technically qualified individual. In adding this laboratory quantity
provision, DHS was responsive to the numerous commenters, including
those from colleges, universities, and industrial laboratories, who
requested such a provision.
As noted above, DHS adopted this laboratory quantities exclusion
from the EPA. DHS, however, has made one minor clarifying adjustment to
the language that it adopted from EPA. In response to comments, DHS
added language to Sec. 27.203(b)(2)(i) to make explicit that
activities conducted outside the laboratory may include research and
development activities. A facility must count all quantities of COI
involved in activities conducted outside of the laboratory (including
research and development) toward its STQ. In other words, such COI
would not be subject to the laboratory quantities exclusion.
c. Minimum Concentration (Mixtures)
Pursuant to Sec. 27.204(a) and as noted in the ``minimum
concentration'' entries in the appendix, the minimum concentration of a
release-toxic or release-flammable chemical of interest that a facility
must include when counting the amount of COI is one percent (1%) by
weight. Pursuant to Sec. 27.204(a)(1), if a release-toxic chemical is
present in a mixture, and the concentration of the chemical is equal to
or greater than one percent (1%) by weight, the facility shall count
the amount of the chemical of interest in the mixture toward the STQ.
For example, if a facility has 500 pounds of a toxic mixture containing
five percent (5%) acrolein, the facility should count five percent (5%)
of the weight of the mixture, or 25 pounds of acrolein, toward the STQ
of 5,000 pounds. Except for oleum, if a facility can measure or
estimate (and document) that the partial pressure of the regulated
substance in the mixture is less than 10 mm Hg, the facility need not
consider the mixture when determining the STQ. If a release-toxic
chemical of interest is present in a mixture, and the concentration of
the chemical is less than one percent (1%) by weight of the mixture,
the facility need not count the amount of that chemical in the mixture
in determining whether the facility possesses the STQ. Note that these
mixture provisions track those of the EPA in its RMP regulation. See 40
CFR 68.115(b)(1).
Pursuant to Sec. 27.204(a)(2), if a release-flammable chemical of
interest is present in a mixture in a concentration equal to or greater
than one percent (1%) by weight of the mixture, and the mixture has a
NFPA flammability hazard rating of 4, the facility shall count the
entire weight of the mixture toward the STQ. For example, if a facility
has 500 pounds of a flammable mixture containing five percent (5%)
pentane and the mixture as a whole has a NFPA flammability hazard
rating of 4, the facility shall count the entire weight of the mixture,
or 500 pounds, toward the STQ of 10,000 pounds. If a release-flammable
chemical of interest is present in a mixture in a concentration equal
to or greater than one percent (1%) by weight of the mixture, and the
mixture has a NFPA flammability hazard rating lower than 4 (i.e., NFPA
hazard rating of 1, 2, or 3), the facility need not count the entire
weight of the mixture toward the STQ. If a release-flammable chemical
of interest is present in a mixture, and the concentration of the
chemical is less than one percent (1%) by weight, the facility need not
count the mixture in determining whether the facility possesses the
STQ. Note that these mixture provisions track those of the EPA in its
RMP regulation. See 40 CFR 68.115(b)(2).
2. Release-Explosives
a. Chemicals
To identify release chemicals that present an explosive hazard, DHS
looked to the DOT hazardous materials regulations (see 49 CFR 171-180)
and the EPA's original listing rule for RMP (see 59 FR 4478 (January
31, 1994)). DOT identifies explosives as one of nine classes of
hazardous materials that it regulates and divides explosives (``Class 1
explosives'') into six divisions. See 49 CFR 173.50(b). Although DHS
had included explosives from the six DOT explosives divisions in the
proposed Appendix A, DHS is only including Division 1.1 explosives in
this final appendix.\19\ After consideration of comments and further
review, DHS decided to focus on Division 1.1 explosives, which are
those that have a mass explosion hazard. A mass explosion hazard is one
which affects almost the entire load instantaneously.
---------------------------------------------------------------------------
\19\ As a result of that decision, DHS removed chemicals such as
dinitrosobenzene, sodium dinitro-o-cresolate, sodium picramate,
tetrazol-1-acetic acid, and zirconium picramate.
---------------------------------------------------------------------------
DHS has incorporated all of the DOT Class 1, Division 1.1 explosive
chemicals with only two broad exceptions. First, the Department does
not include those explosive materials for which DOT uses a generic
shipping name with the suffix ``N.O.S.'' \20\ This refers to materials
with generic descriptions in the Hazardous Materials Table in 49 CFR
172.101 (e.g., Substances, explosive, n.o.s.). The Department has
instead identified the relevant Class 1 explosive materials as only
those that DOT specifically names in its Hazardous Materials Table.
Second, DHS does not include articles
[[Page 65403]]
or devices that DOT lists in its Hazardous Material Table. Examples of
those articles and devices include charges, guns, detonators, detonator
assemblies, fuses, primers, cartridges, and motors. DHS does not
believe, at this time, that it is necessary to include this broader
universe of substances and materials. Coverage of chemical facilities
that present a high level of risk and that include these materials will
be triggered by other STQ provisions of this rule. If the Department
finds that is not the case for a particular facility, the Department
will seek information from that facility.
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\20\ N.O.S. refers to ``not otherwise specified.''
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DHS believes it is appropriate to include DOT Class 1, Division 1.1
explosive materials in Appendix A despite the EPA's exclusion of these
materials. At the onset of the RMP program, EPA had listed DOT Division
1.1 explosives as a regulated substance. EPA set the TQ at 5,000
pounds, because the EPA believed that a blast wave from such an amount
had the potential to cause offsite impacts. See 59 FR 4478 (January 31,
1994). EPA later issued a final rule, delisting Class 1, Division 1.1
explosives. See 63 FR 640 (January 6, 1998). In the final rule, EPA
concluded that ``current regulations and current and contemplated
industry practices promote safety and accident prevention in storage,
handling, transportation, and use of explosives. As a result, these
regulations and practices adequately protect the public and the
environment from the hazards of accidents involving explosives.'' See
63 FR 640, 641. DHS notes that EPA's decisions were based on safety and
the prevention of an accidental release. DHS is concerned with an
intentional attack on an explosives facility, which has the potential
to generate significant impacts for human life and health beyond the
facility. Given the different focus of DHS's regulation, it is
important that DHS consider DOT Class 1, Division 1.1 explosives; there
is the potential for a serious off-site effect from an intentional and
successful attack on a facility with these explosives.
b. STQ
DHS proposed an STQ of 2,000 pounds \21\ for release-explosives but
now sets the STQ for release-explosives at 5,000 pounds. As discussed
above in relation to release-toxics and release-flammables, DHS has
decided to set the STQ for release chemicals at the EPA TQs. Five
thousands pounds is the TQ that EPA had used for DOT Division 1.1
explosives when the DOT Division 1.1 explosives were part of the EPA
RMP program. In addition, this is the same quantity that TSA now
proposes to use for DOT explosives in its Rail Transportation Security
NPRM.\22\ All release-explosives are also listed as theft/diversion-
EXP/IEDP chemicals (although all theft/diversion-EXP/IEDP chemicals are
not listed as release-explosives, because the theft/diversion-EXP/IEDP
category includes both actual explosives and precursors to explosives).
A facility that possesses a chemical that presents both a release-
explosive hazard and a theft/diversion-EXP/IEDP hazard must consider
both of the applicable STQs, and if the facility possesses a quantity
that satisfies either STQ, the facility must complete and submit the
Top-Screen.
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\21\ In the proposed appendix in the IFR, DHS set the STQ for
these explosive chemicals at 2,000 pounds. In the IFR, however, DHS
was only considering the theft/diversion concern. In the IFR, had
DHS set the STQ for these explosive chemicals (using the method of
calculating the STQ at 75% of the EPA RMP TQ) based on a release
concern the STQ would have been 3,750 pounds. As discussed in this
preamble, while the current EPA RMP does not contain release-
explosives, EPA had previously included release-explosives in the
RMP program, and when doing so, EPA set the TQ at 5,000 pounds.
\22\ 71 FR 76852 (December 21, 2006). See proposed 49 CFR
1580.100(b)(1).
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In calculating whether a facility meets the STQ for release-
explosive chemicals, the facility need not include release-explosive
chemicals of interest that a facility manufactures, processes, or uses
in a laboratory at the facility under the supervision of a technically
qualified individual as defined in 40 CFR 720.3. See Sec.
27.203(b)(2). This provision is identical to the laboratory quantities
provision that applies to release-toxic and release-flammable chemicals
and that is discussed above.\23\
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\23\ See Sec. II(C)(1)(b) above.
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c. Minimum Concentration (Mixtures)
Section 27.204(a)(3) provides that a facility shall count toward
the STQ the total quantity of all commercial grades of release-
explosives. DHS has added a definition of ``A Commercial Grade'' (ACG)
to Sec. 27.105. ACG refers to any quality or concentration of a
chemical of interest offered for commercial sale that a facility uses,
stores, manufactures, or ships.
3. Theft/Diversion-CW/CWP
a. Chemicals
In identifying chemical weapons (CW) and their precursors that are
at risk for theft or diversion, the Department looked to the chemicals
covered by the Chemical Weapons Convention (CWC).\24\ The chemicals
covered by the CWC regulations are divided into three lists, or
``schedules,'' based on their previous use as a CW or possible utility
in developing chemical weapons.\25\ Schedule 1 covers chemical weapons
agents and their immediate precursors. They have very limited
industrial and medical applications. Schedule 2 covers chemicals and
precursors that have some industrial uses. Schedule 3 covers chemicals
and precursors with broad commercial applications, some of which were
formerly weaponized.\26\
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\24\ The Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on Their
Destruction is an international arms control, disarmament, and non-
proliferation treaty, which is implemented by 22 U.S.C. 6701, et.
seq. The Department of Commerce administers the implementing
regulations. See 15 CFR part 710.
\25\ Schedule 1 chemicals are provided in Supplement No. 1 to 15
CFR part 712, Schedule 2 chemicals are provided in Supplement No. 2
to 15 CFR part 713, and Schedule 3 chemicals are provided in
Supplement No. 3 to 15 CFR part 714.
\26\ See ``The Chemical Weapons Convention Regulations:
Frequently Asked Questions and Answers on Industry Compliance,''
U.S. Department of Commerce, Bureau of Industry and Security,
Publication CWC-006 (Updated May 2006).
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While the Department included chemicals from all three Schedules
\27\ in proposed Appendix A, the Department has only included select
chemicals from the CWC Schedules in final Appendix A. The Department
continues to include all specifically identified Schedule 1 chemicals,
because they are actual CW agents and their immediate precursors. Note
that, based on comments, the Department has listed these Schedule 1
chemicals by their individual common name along with their chemical
name.
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\27\ There were a few Schedule 1 chemicals, however, that were
inadvertently omitted from the proposed appendix.
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With respect to Schedule 2 and 3 chemicals, the Department has only
included those Schedule 2 and 3 chemicals and precursors that are
``easily weaponizable''--that is, they could be easily converted into
chemical weapons using simple chemistry, equipment, and techniques.\28\
DHS made the determination about ``weaponizability'' after consulting
with several sources, including the Federal Bureau of Investigation
(FBI) and the DHS Chemical Security Analysis Center (CSAC).\29\ As a
result of this approach, the Department removed chemicals that had
appeared on the proposed list but
[[Page 65404]]
were now determined not to be easily weaponizable (e.g., chloropicrin).
In addition to including select CWC chemicals, Appendix A also contains
one other easily weaponizable chemical (triethanolamine hydrochloride)
from the Australia Group's \30\ ``Export Controls List: Chemical
Weapons Precursors.''
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\28\ Among the Schedule 2 chemicals, DHS included certain
easily-weaponizable chemicals that are representative of
``families'' of Schedule 2 chemicals (as opposed to uniquely
identifiable Schedule 2 chemicals).
\29\ One of the DHS Science and Technology Centers, the CSAC
leverages existing Department of Defense (and other) infrastructure
and capabilities to provide analysis and scientific assessment of
the chemical threat against the homeland and the American public.
\30\ The Australia Group is an informal group of countries,
which aims to allow exporting or transshipping countries to minimize
the risk of assisting chemical and biological weapon proliferation.
See http://www.australiagroup.net/en/control_list/precursors.htm.
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b. STQ and Minimum Concentration (Mixtures)
DHS has eliminated the ``any amount'' STQ that it used in the
proposed appendix for theft/diversion-CW/CWP chemicals. In this final
appendix, DHS has set the STQ for each theft/diversion-CW/CWP chemical
based on the Schedule from which DHS adopted the chemical. The STQ for
Schedule 1 chemicals is cumulative, or ``CUM 100g,'' meaning that all
amounts of Schedule 1 chemicals at a facility count toward the
cumulative STQ of 100 grams. Section 27.203(c) provides that ``where a
theft/diversion-Chemical Weapons (CW) chemical is designated by ``CUM
100g,'' a facility shall total the quantity of all such designated
chemicals in its possession to determine whether the facility possesses
theft/diversion-CW chemicals that meet or exceed the STQ of 100
grams.'' This is an aggregate amount and not a per agent limit. DHS
added a definition for ``CUM 100g'' to Sec. 27.105 ``Definitions'' and
included this new provision in Sec. 27.204(b)(1). ``CUM 100g'' is the
entry for both the STQ and Minimum Concentration columns for all
Schedule 1 chemicals. DHS decided to use this amount based on the
recommendation of CSAC, which indicated that this amount merits proper
security for purposes of preventing theft and diversion to create
significant human impact and cause widespread panic.
The STQs for Schedule 2 and 3 chemicals, which are based on their
ease of weaponization, are 2.2 pounds and 220 pounds, respectively.\31\
Unlike the STQ for Schedule 1 chemicals, these STQs are not cumulative.
For non-Schedule 1 theft/diversion-CW/CWP chemicals of interest that
are present in a mixture at or above the minimum concentration listed
in the column in Appendix A, the facility should count the entire
amount of the mixture toward the STQ. See Sec. 27.204(b)(1).
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\31\ The STQ for the chemical from the Australia Group,
triethanolamine hydrochloride, is 220 pounds.
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4. Theft/Diversion-WME
a. Chemicals
To identify chemicals that might be targeted for theft or diversion
as weapons of mass effect (WME), the Department looked to the DOT
hazardous materials regulations and considered gases that are poisonous
by inhalation (PIH). In proposed Appendix A, DHS listed all DOT
Division 2.3 PIH gases including those in Hazard Zones A through D.\32\
In this finalized appendix, the Department has not included Hazard Zone
D PIH gases (including carbon monoxide and sulfuryl fluoride), because
they do not rise to a level of consequentiality that warrants inclusion
as a theft/diversion-WME chemical.\33\ In addition, the Department no
longer includes methyl bromide on the list of chemicals, because it is
being phased out of domestic manufacture and use under Clean Air Act
regulations implementing the United States' obligations as a signatory
to the Montreal Protocol on Substances that Deplete the Ozone
Layer.\34\ Thus, given the limited and decreasing availability of
methyl bromide, the Department does not believe that the potential
consequences of an attack warrant inclusion of that chemical on the
list of chemicals in Appendix A.
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\32\ DOT defines a ``gas poisonous by inhalation'' in 49 CFR
173.115(c) and assigns hazard zones in 49 CFR 173.116(a).
\33\ One Hazard Zone D chemical, ethylene oxide, is listed in
the final Appendix A, because of its inclusion on EPA's RMP list.
DHS lists ethylene oxide as a release-toxic but not as a theft-WME
chemical.
\34\ Title VI of the Clean Air Act (42 U.S.C. 7671, et seq.),
which addresses stratospheric ozone protection, directs EPA to
establish a program for phasing out production and use of ozone-
destroying chemicals, including methyl bromide. These requirements
are in furtherance of the United States' obligations, as a signatory
to the 1987 Montreal Protocol on Substances that Deplete the Ozone
Layer, to limit the production and use of such chemicals. In 2000,
EPA issued a direct final rulemaking, which allowed for the phased
reduction in methyl bromide consumption and which extended the
phase-out to 2005. See 65 FR 70795 (November 28, 2000). EPA has
further extended the phase-out program until alternatives for all
critical uses of the chemical are available. See 71 FR 38325 (July
6, 2006). See also http://www.epa.gov/ozone/mbr/index.html.
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In the proposed appendix, with one exception, DHS did not include
DOT Division 2.3 PIH gases for which DOT uses a generic shipping name
with the suffix ``N.O.S.'' DHS has done the same in this final
appendix. N.O.S. refers to materials with generic descriptions (e.g.,
Compressed gas, n.o.s. or Compressed gas, toxic, flammable, corrosive,
n.o.s. Inhalation Hazard Zone D; or Insecticide gases n.o.s. or
Insecticide gases, toxic, flammable, n.o.s. Inhalation hazard Zone A).
The Department has only included PIH gases that the Department of
Transportation specifically names in the Hazardous Materials Table in
49 CFR 172.101. In addition, the Department has included germanium
tetrafluoride.\35\ While that chemical is not specifically named in the
DOT Hazardous Materials Table, it is often named specifically by
convention in industry. Given that it can be identified by its specific
name and following a positive response from commenters as to the
inclusion of this chemical, the Department decided to retain this
chemical on the list.
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\35\ The DOT shipping name for germanium tetrafluoride is
``Liquefied Gas, Toxic, Corrosive, n.o.s. (Germanium
Tetrafluoride)'' if liquid is present and ``Compressed Gas, Toxic,
Corrosive, n.o.s. (Germanium Tetrafluoride)'' if no liquid is
present.
---------------------------------------------------------------------------
b. STQ
DHS has eliminated the ``any amount'' STQ that it used in the
proposed appendix for theft/diversion-WME chemicals. DHS developed the
STQs for these chemicals in this final rule based generally upon
recommendations from the Compressed Gas Association (CGA) in its
comments to the proposed appendix in the IFR. The STQs for theft/
diversion-WME chemicals vary based on Hazard Zone, thereby taking into
account their relative toxicity. See 49 CFR 173.116 ``Class 2--
Assignment of Hazard Zone.'' In their comments, CGA indicated that,
aside from lecture bottles and sample cylinders, the minimum industry
standard commercial size package for Hazard Zone A PIH gases is five
(5) pounds, and the minimum industry standard commercial size package
for Hazard Zone B PIH gases is fifteen (15) pounds. CGA recommended
that DHS set the STQ for Hazard Zone A at any amount greater than five
pounds and the STQ for Hazard Zone B at any amount greater than fifteen
pounds. In this final rule, DHS has set the STQ for Hazard Zone A PIH
gases, which are the most toxic of PIH gases, at fifteen (15) pounds,
and the STQ for Hazard Zone B PIH gases at forty-five (45) pounds.
These two STQs are the equivalent of approximately three standard
commercial size packages for Hazard Zone A and B PIH gases. These two
STQs represent quantities of Hazard Zone A and/or Hazard Zone B PIH
gases that are likely to generate significant consequences, including
the fact that portable quantities of these PIH gases may be subject to
theft and/or diversion.
[[Page 65405]]
The STQ for Hazard Zone C PIH gases is 500 pounds. That amount is
equivalent to approximately five standard industrial gas cylinders.
Hazard Zone C PIH gases are less toxic than those in Hazard Zones A and
B, and DHS therefore has concluded that it is unlikely for amounts less
than 500 pounds to generate a high degree of consequence.
These general STQ rules apply to all theft/diversion-WME chemicals
except in two instances. First, DHS has established specialized
provisions for chlorine, which are discussed below in section II(D).
Second, DHS set the STQ for two Hazard Zone C PIH gases (hydrogen
fluoride and boron trichloride) at the STQ associated with Hazard Zone
B PIH gases--i.e., 45 pounds instead of 500 pounds. Although DOT
categorizes these substances as Hazard Zone C, industry generally
treats these gases as Hazard Zone B gases because of their toxic
properties. Industry commenters recommended, and DHS agreed, that the
toxic properties of these chemicals warrant a higher degree of scrutiny
and unique STQ in the security context.
c. Minimum Concentration (Mixtures)
If a theft/diversion-WME chemical of interest is present in a
mixture at or above the minimum concentration amount listed in the
Minimum Concentration column of the appendix, the facility shall count
the entire amount of the mixture toward the STQ unless a specific
minimum concentration is assigned in the Minimum Concentration column
of Appendix A to part 27, in which case the facility should count the
total quantity of all commercial grades of the chemicals at the
specified minimum concentration. See Sec. 27.203(b)(2). DHS derived
the minimum concentrations from the Compressed Gas Association Standard
for Classification of Toxic Gas Mixtures, CGAP-20-2003.
5. Theft/Diversion-EXP/IEDP
a. Chemicals
To identify chemicals that could be subject to theft or diversion
for purposes of creating an explosion or producing an Improvised
Explosive Device (IED),\36\ the Department considered several sources.
For proposed Appendix A, the Department included certain DOT Class 1
explosives.\37\ The Department also included IED precursors that the
National Research Council recommended for additional control in its
report titled ``Containing the Threat from Illegal Bombings: An
Integrated National Strategy for Marking, Tagging, Rendering Inert, and
Licensing Explosives and Their Precursors.'' \38\
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\36\ An IED is a device fabricated in an improvised manner that
incorporates in its design explosives or destructive, lethal,
noxious, pyrotechnic, or incendiary chemicals. It generally includes
a power supply, a switch or timer, and a detonator or initiator.
\37\ See discussion in section II(C)(2) above.
\38\ The National Academy Press published the Report, which is
available online at www.nap.edu. The National Research Council had
appointed ``The Committee on Marking, Rendering Inert, and Licensing
of Explosive Materials'' to address areas related to explosives.
This final report presents the Committee's conclusions and
recommendations.
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While the universe of theft/diversion-EXP/IEDP chemicals has
remained substantially the same since the IFR, DHS has added a few
chemicals (including IED precursors) and deleted a few chemicals at the
recommendation of the FBI.\39\ The FBI Explosives Unit \40\ recommended
the inclusion of certain chemicals based on their experience
investigating IED attacks and evaluating IED components.
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\39\ DHS added aluminum (powder), magnesium (powder),
nitrobenzene, potassium permanganate, sodium azide, sodium
hydrosulfite, and zinc hydrosulfite.
\40\ As stated on the FBI website, the FBI Explosives Unit
``examines evidence associated with bombings. Explosives
examinations involve the identification and function of the
components used in the construction of incendiary as well as
improvised explosive devices. In addition, the Unit performs
chemical analyses to determine the type of explosive used in an
improvised explosive or incendiary device, which includes bulk
substance analysis as well as analysis of the residues left behind
when an explosive detonates.'' See http://www.fbi.gov/hq/lab/org/eu.htm.
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Of note in the realm of deleted chemicals (especially to the many
commenters who requested their removal), the Department no longer
includes acetone and urea in the appendix. Given the Department's
inclusion of concentrated nitric acid and concentrated hydrogen
peroxide in the appendix, the Department does not believe it is
necessary to include acetone and urea. The Department is concerned
about these chemicals, because they can be mixed to create explosives
(e.g., Triacetone Triperoxide (TATP) includes both acetone and hydrogen
peroxide). The Department is electing, therefore, to list the more
critical chemicals (i.e., concentrated hydrogen peroxide and
concentrated nitric acid) of those mixtures. The effect is to target
regulation to facilities possessing chemicals of interest to terrorists
in order to thwart terrorism.
The Department's decision is supported by the conclusions of the
National Research Council report. In pertinent part, the National
Research Council provides:
It is not feasible to control all possible chemical precursors
to explosives. Efforts to control access should focus on the
chemicals identified by the committee as current candidates for
control in the United States. These chemicals are ammonium nitrate,
sodium nitrate, potassium nitrate, nitromethane, concentrated nitric
acid, concentrated hydrogen peroxide, sodium chlorate, potassium
chlorate, and potassium perchlorate. Urea and acetone also meet the
criteria for control but are adequately controlled if access to
nitric acid and hydrogen peroxide is limited.\41\ (Emphasis in the
original.)
\41\ See the Executive Summary of the National Research Council
Report titled ``Containing the Threat from Illegal Bombings: An
Integrated National Strategy for Marking, Tagging, Rendering Inert,
and Licensing Explosives and Their Precursors,'' p. 15.
---------------------------------------------------------------------------
In its discussion of chemicals that pose the greatest threat in the
United States because of their ability to be used to improvise bombs,
the National Research Council further discussed nitric acid/urea and
hydrogen peroxide/acetone:
Urea can be reacted with nitric acid to produce the explosive
urea nitrate, the material used in the World Trade Center bombing.
Urea is a nondetonable, ubiquitous, and inexpensive material with an
annual production volume in North America of 19 million short tons
(IFDC, 1997). It is used extensively as a fertilizer, as a
noncorrosive ice-melting material at public facilities and in
private homes, and as a reagent in many chemical processes. Because
urea is a relatively innocuous chemical with a wide range of uses,
the committee believes that preventing access to urea nitrate for
illegal purposes is more easily achieved by controlling the other
critical component required to make an explosive: nitric acid.\42\
---------------------------------------------------------------------------
\42\ Id. at p. 147.
---------------------------------------------------------------------------
Nitric acid, which is toxic and highly corrosive, has many
industrial applications but is not commonly available to the general
public. For that reason, the committee believes that sales of nitric
acid are much more traceable than those of urea. Furthermore,
controls on nitric acid would provide greater leverage in efforts to
prevent bomb attacks than would controls on urea, because nitric
acid can be reacted with a wide range of organic materials (e.g.,
cellulose, glycerine, and amines) to produce explosives. Although
much of the nitric acid produced is used in on-site chemical
processes, a large amount is shipped in tank cars to chemical
processing plants or packaged in drums for sale to commercial
businesses such as etchers and metal platers. All of these uses are
amenable to good sales record keeping. The committee believes that
such sales records are probably adequate for current law enforcement
needs.\43\
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\43\ Id. at p. 147.
---------------------------------------------------------------------------
Hydrogen peroxide can be reacted with acetone to make the
powerful explosive TATP, which has been used by terrorists abroad
but not thus far to any great extent in the United States. It can be
made in large
[[Page 65406]]
quantities but is extremely unstable and dangerous to handle.\44\
---------------------------------------------------------------------------
\44\ Id. at p. 148.
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Acetone, one of the most common organic solvents, can be
purchased readily from many sources in large quantities. As in the
case of nitric acid and urea, controlling access to TATP is achieved
more readily by limiting the availability of hydrogen peroxide than
by controlling acetone. As with controls on nitric acid, controls on
hydrogen peroxide would be preferred because hydrogen peroxide can
be reacted with chemicals other than acetone to produce
explosives.\45\
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\45\ Id. at p. 148.
The Department, after consultation with the FBI Explosives Unit, finds
persuasive the conclusion of the National Research Council and removed
acetone and urea from Appendix A. The Department also removed nitro
urea and urea nitrate, neither of which is commercially available.
With respect to hydrogen peroxide, the Department has adjusted the
concentration. In the proposed appendix, the Department listed a
concentration of ``at least 30%.'' In this final appendix, the
Department has increased the concentration for hydrogen peroxide to
35%, a common technical and food grade of hydrogen peroxide. The
original 30% concentration was based on IED precursor regulations
proposed in Canada. The Department received comments from various
industries about the importance of hydrogen peroxide and the most
common commercial grades of the chemicals. In consultation with the FBI
Explosives Unit, the Department has revised the concentration it set
for hydrogen peroxide, believing that this change in concentration will
not significantly increase the likelihood of missing a high risk
chemical facility through the part 27 program.
b. STQ
DHS has changed the STQ for theft/diversion-EXP/IEDP chemicals from
the proposed amount of 2,000 pounds to 400 pounds. This new STQ equals
the amount that is likely required to produce a small, vehicle-borne
IED (VBIED). This STQ applies to all theft/diversion-EXP/IEDP chemicals
except for (1) ammonium nitrate, which the Department discusses below
in section II(D)(3) and for (2) a few chemicals where DHS used a
different STQ at the recommendation of the FBI Explosives Unit.
Specifically, DHS set the STQ for aluminum powder, magnesium powder,
and nitrobenzene at 100 pounds instead of 400 pounds, because DHS
believes that the effect of these particular chemicals at these
quantities would have the same effect as the other theft/diversion-EXP/
IEDP chemicals at 400 pounds.
c. Minimum Concentration (Mixtures)
As provided in Sec. 27.204(b)(3), a facility shall count toward
the STQ the total quantity of all commercial grades of a theft/
diversion-EXP/IEDP chemical at the facility unless a specific minimum
concentration is assigned in the Minimum Concentration column of
Appendix A to part 27, in which case the facility should count the
total quantity of all commercial grades of the chemicals at or above
the specified minimum concentration. There are specified minimum
concentrations for a few of the theft/diversion-EXP/IEDP chemicals,
such as hydrogen peroxide (35%) or ammonium nitrate (nitrogen
concentration of 23% nitrogen or greater). DHS has added a definition
of ``A Commercial Grade'' (ACG) to Sec. 27.105. ACG refers to any
quality or concentration of a chemical of interest offered for
commercial sale that a facility uses, stores, manufactures, or ships.
6. Sabotage/Contamination
a. Chemicals
Sabotage/contamination refers to those chemicals that, if mixed
with other readily-available materials, have the potential to create
significant adverse consequences for human life or health. The
Department's list of sabotage/contamination chemicals is substantially
the same in the final appendix as it was in the proposed appendix.
Sabotage/contamination chemicals currently include those chemicals
that are capable of releasing a poisonous gas when exposed to water. In
identifying the chemicals for this category, the Department referred to
the table of ``Water-Reactive Materials Which Produce Toxic Gases'' in
the 2004 Emergency Response Guidebook (ERG 2004).\46\ The ERG 2004 is a
joint publication of the U.S. Department of Transportation, Transport
Canada, and the Secretariat of Communications and Transportation of
Mexico. These materials are listed in the ERG 2004 as incompatible with
water, because they produce large amounts of Toxic by Inhalation \47\
gases when exposed to water.
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\46\ The table is located on pages 344-348 of the ERG 2004,
which is available on the Web at http://hazmat.dot.gov/pubs/erg/gydebook.htm.
\47\ Toxic by Inhalation (TIH) is synonymous with Poisonous by
Inhalation (PIH).
---------------------------------------------------------------------------
b. STQ
In the proposed appendix, the STQ for sabotage/contamination
chemicals was 2,000 pounds. The STQ now listed for sabotage/
contamination chemicals is A Placarded Amount (APA). DHS added a
definition of APA to Sec. 27.105, providing that it refers to the STQ
for a sabotage/contamination chemical of interest, as calculated in
accordance with Sec. 27.203(d). Section 27.203(d) provides that ``[a]
facility meets the STQ for a sabotage/contamination chemical of
interest if it ships the chemical and is required to placard the
shipment of that chemical pursuant to the provisions of subpart F of 49
CFR part 172.'' Subpart F of 49 CFR part 172 contains the DOT
placarding requirements within the DOT Hazardous Materials regulations.
c. Minimum Concentration (Mixtures)
As provided in Sec. 27.204(c), a facility shall count toward the
STQ the total quantity of all commercial grades of a sabotage/
contamination chemical that it possesses unless a specific minimum
concentration is assigned in the Minimum Concentration column of
Appendix A to part 27, in which case the facility should count the
total quantity of all commercial grades of the chemicals at the
specified minimum concentration. DHS has added a definition of ``A
Commercial Grade'' (ACG) to Sec. 27.105. ACG refers to any quality or
concentration of a chemical of interest offered for commercial sale
that a facility uses, stores, manufactures, or ships.
D. Chemicals With a Specialized Approach
1. Propane
Propane, a release-flammable chemical, is one of the many RMP
flammable chemicals that DHS adopted from EPA's RMP list. In the IFR,
the proposed STQ for propane (an RMP flammable) was 7,500 pounds, which
is seventy-five percent of the RMP TQ. Using the revised general DHS
rule for release-flammables, the STQ for propane would be 10,000
pounds. DHS, however, set the STQ for propane in this final rule at
60,000 pounds. Sixty thousand pounds is the estimated maximum amount of
propane that non-industrial propane customers, such as restaurants and
farmers, typically use. The Department believes that non-industrial
users, especially those in rural areas, do not have the potential to
create a significant risk to human life or health as would industrial
users. The Department has elected, at this time, to focus efforts on
large commercial
[[Page 65407]]
propane establishments but may, after providing the public with an
opportunity for notice and comment, extend its part 27 screening
efforts to smaller facilities in the future. This higher STQ will focus
DHS's security screening effort on industrial and major consumers,
regional suppliers, bulk retail, and storage sites and away from non-
industrial propane customers. The minimum concentration and mixtures
provisions for propane are the same as for all other release-
flammables.
Pursuant to Sec. 27.203(b)(3), facilities need not include propane
in tanks of 10,000 pounds or less when calculating whether a facility
has a total inventory of 60,000 pounds. DHS included this provision, in
part, because of its desire to exclude farmers and agricultural users
of propane who routinely have three or more propane tanks \48\ for
heating their homes and/or their chicken/turkey houses. If DHS listed
propane at 10,000 pounds (the STQ for all other release-flammable
chemicals), many more entities, including homeowners, farmers, and
small businesses, would have to complete and submit the Top-Screen. DHS
does not expect that such dispersed inventories, often located away
from population centers, are likely to meet its definition of high risk
chemical facilities. DHS believes that the revised approach toward
propane is better geared toward identifying and addressing the risks
associated with major propane inventories.
---------------------------------------------------------------------------
\48\ Typical tank sizes include approximately 2,205 pounds and
4,418 pounds.
---------------------------------------------------------------------------
2. Chlorine
In the proposed appendix, DHS set the STQ for chlorine at 1,875
pounds. There are two security issues associated with chlorine, each
with its own STQ. Using the DHS baseline rules, the STQ for chorine as
a release-toxic would be 2,500 pounds,\49\ and the STQ for chlorine as
a theft/diversion-WME chemical would be 45 pounds.\50\ Consistent with
all other release-toxic chemicals, DHS set the release-toxic STQ for
chlorine at 2,500 pounds and requires facilities to use the calculation
and mixtures provisions that apply to all other release-toxic
chemicals. See Sec. Sec. 27.204(a)(1) and 27.203(b)(1)(i)-(ii).
---------------------------------------------------------------------------
\49\ DHS used the RMP TQ for release-toxic chemicals, and the
RMP TQ for chlorine is 2,500 pounds.
\50\ Chlorine is a DOT Division 2.3 PIH gas in Hazard Zone B,
and the baseline STQ for Hazard Zone B PIH gases is generally 45
pounds.
---------------------------------------------------------------------------
DHS, however, developed a unique approach for chlorine where it
presents a theft/diversion-WME security issue. Instead of 45 pounds,
DHS established a higher STQ for the theft-WME STQ for chlorine--500
pounds.\51\ Five hundred pounds is the equivalent of five standard 100-
pound cylinders. (The minimum concentration for chlorine that presents
a theft-WME security issue is 9.77%.) Setting the theft/diversion-WME
STQ for chlorine at 45 pounds would have been both burdensome for
numerous manufacturers (which are reliant on chlorine as a starting
material) and difficult for DHS to effectively implement, manage, and
enforce. The U.S. produces 11 million metric tons of chlorine per year.
The vast majority of chlorine production is used for processing a wide
range of paper, plastic, textile, medicine, insecticides, paint, and
other materials. Chlorine is also used in water and wastewater
treatment. While most chlorine is consumed at the facility where it is
produced, four million metric tons are shipped annually in small
containers, one-ton containers, and cargo tank motor vehicles, and tank
cars across the country.
---------------------------------------------------------------------------
\51\ As with all theft/diversion chemicals, facilities must only
count toward the theft-WME STQ for chlorine those quantities of
chlorine in transportation packagings. See Sec. 27.203(c).
---------------------------------------------------------------------------
Given the enormous production, transportation, and importance of
chlorine, DHS increased the theft/diversion-WME STQ for chlorine from
45 pounds to 500 pounds. DHS believes that quantities less than 500
pounds would capture facilities that are unlikely to present
significant consequences. This amount is considered a portable and
transportable amount that could be diverted or stolen. Overall, DHS's
approach toward chlorine recognizes that chlorine is distinct from
other WME precursors in terms of its broad utility and availability.
3. Ammonium Nitrate (AN)
In proposed Appendix A, the Department identified only one form of
ammonium nitrate (nitrogen concentration of 28%-34%) and set the STQ at
2,000 pounds. Based on the consideration of comments, the Department
has revised its approach in this final appendix, identifying AN in two
forms: (1) The DOT Division 1.1 explosive found in 49 CFR 172.101 and
(2) the more common form frequently used as a fertilizer. DHS assigned
a STQ to each form. Given the breadth of AN's use and history, DHS has
crafted a specialized approach to address this chemical's specific
security concerns.
The first entry for AN in the appendix addresses AN as an
explosive. The Department has listed the DOT Division 1.1 explosive:
Ammonium nitrate [with more than 0.2 percent combustible substances,
including any organic substance calculated as carbon, to the exclusion
of any other added substance].\52\ As an explosive, AN presents two
security issues: Theft/diversion-EXP/IEDP and release-explosive. DHS is
treating the possible theft/diversion of this form of AN in the same
way that it is treating all other DOT Division 1.1 explosives.\53\
Where a facility has larger amounts of AN as an explosive, there may
also be release hazards. As that is the case, DHS has set the STQ for
the possible release of AN as an explosive at 5,000 pounds.\54\ That
STQ is the same TQ that EPA had set for DOT Division 1.1 explosives
when EPA included such substances in its RMP rule.
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\52\ The entry for this form of AN can be found in the DOT
Hazardous Materials Regulations at 49 CFR Sec. 172.101.
\53\ Where AN as an explosive presents a theft-EXP/IEDP security
issue, the STQ is 400 pounds, and a facility is expected to include
all amounts of ACG of AN when determining whether it meets or
exceeds the STQ. And, per Sec. 27.203(c), in calculating this theft
STQ, facilities need only count amounts in transportation
packagings.
\54\ Consistent with the mixtures provision for all release-
explosives (see Sec. 27.204(a)(3)), facilities are expected to
include all amounts of ACG of AN in calculating the STQ.
---------------------------------------------------------------------------
The second entry for AN in the appendix addresses the more common
form of AN in solid form with a nitrogen concentration of 23% or
greater. This form of AN is largely used in the agricultural community
and in amounts that typically exceed 400 pounds (the STQ for all other
theft/diversion-EXP/IEDP chemicals). Given the circumstances
surrounding its use (i.e., extensive use in the agricultural industry),
DHS has set the STQ for this form of AN at 2,000 pounds. (This form of
AN in a mixture will count toward the STQ in a minimum concentration of
33% or more.) This STQ is geared toward ensuring that DHS secures AN
inventories at major manufacturing and distribution facilities, as
opposed to individual farmers involved mainly in the application of AN.
DHS believes that terrorists are interested in maximizing death and
injuries from an attack and are, therefore, less interested in
attacking facilities in rural areas or other areas with low population
densities.
DHS referenced many sources in developing this approach. In
addition to considering DOT and EPA regulations, DHS consulted with
Departmental experts, such as the DHS Office for Bombing Prevention,
which administers the Bomb Making Awareness Program, and other federal
experts, such as the FBI Explosives Unit. The Department's
[[Page 65408]]
approach was further supported by international resources, including
the British Health and Safety Executive's publication titled ``Storing
and Handling Ammonium Nitrate'' and Canada's proposed regulations on
Restricted Components issued pursuant to Canada's Explosives Act.\55\
---------------------------------------------------------------------------
\55\ The Explosives Regulatory Division (ERD) of Natural
Resources Canada has posted the proposed regulation on their Web
site at http://www.nrcan.gc.ca/mms/explosif/pdf/RestrictedComp_e.pdf.
---------------------------------------------------------------------------
E. Technical Corrections
DHS made several technical corrections to the chemicals listed in
Appendix A, and those corrections, many of which are highlighted below,
improve the accuracy of the list. Many commenters assisted DHS in
identifying these items. DHS removed the entries for certain chemicals
(because they were synonyms for already-listed chemicals) and instead
listed them as synonyms in the new ``Synonyms'' column.\56\ DHS also
corrected the Chemical Abstract Service (CAS) number for several
chemicals \57\ and the spelling and/or name of other chemicals.\58\
---------------------------------------------------------------------------
\56\ This includes, for example, calcium dithionite (already
listed as calcium hydrosulfite), sodium dithionite (already listed
as sodium hydrosulfite); zinc dithionite (already listed as zinc
hydrosulfite); and dimethyl phosphoramido-dichloridate (already
listed as N, N-dimethyl phosphoramidic dichloride).
\57\ This includes, for example, chromium oxychloride; DF,
dinitroresorcinol; dipicrylamine [or] hexyl (formerly listed as
hexanitrodiphenylamine, which is now listed as a synonym);
hexyltrichlorosilane; magnesium aluminum phosphide (now listed
separately as magnesium phosphide and aluminum phosphide); octonal;
octolite; sodium phosphide; strontium phosphide; torpex (formerly
listed as hexotonal); and trinitronaphthalene.
\58\ This includes, for example, 1-pentene; boron trifluoride
(and its synonym borane, trifluoro); boron trifluoride compound with
methyl ether (1:1); pentaerythritol tetranitrate; propyl
chloroformate; sulfur tetrafluoride (and its synonym sulfur
fluoride); and vinyl acetylene.
---------------------------------------------------------------------------
In addition, DHS made chemical-specific edits. For example, DHS
separated the entry for ``hydrogen fluoride/hydrofluoric acid (conc.
50% or greater)'' into two entries. DHS had included them as one
listing in the proposed listing, because they were included as such on
EPA's RMP list. As they are two different chemicals (one is a gas and
the other is a fuming liquid), albeit with the same CAS number, DHS has
separated them into two entries.\59\ As another example, DHS clarified
the inclusion of various explosive chemicals. The Department added RDX/
cyclotrimethylenetrinitramine (CAS 121-82-4), which had been
inadvertently omitted in the proposed appendix. The Department is
including this DOT Division 1.1 explosive, because the Department is
including all such DOT Division 1.1 explosives, given the risk of their
theft or diversion for terrorism purposes. The Department now lists HMX
under its common name (i.e., HMX); in the proposed appendix, the
Department had listed HMX under its chemical name
(cyclotetramethylenetetranitramine). Note, however, that the Department
has included HMX's chemical name in the synonym column for the HMX
entry.
---------------------------------------------------------------------------
\59\ For hydrofluoric acid (conc. 50% or greater), which
presents a release-toxic security issue, DHS assigns a STQ of 1000
pounds and minimum concentration of 50% or greater. For hydrogen
fluoride (anhydrous), when it presents a release-toxic security
issue, DHS assigns a STQ of 1,000 pounds and a minimum concentration
of 1.00%. For hydrogen fluoride (anhydrous), when it presents a
theft-WME security issue, DHS assigns a STQ of 15 pounds and a
minimum concentration of 42.53%.
---------------------------------------------------------------------------
III. Discussion of Comments
In the Interim Final Rule, DHS sought comment on the proposed list
of DHS Chemicals of Interest in Appendix A to part 27. DHS received
approximately 4,300 public comments, and almost 4,000 of those comments
were related to the issues surrounding propane. Commenters to the
proposed appendix included trade associations, citizens, companies,
universities, hospitals and research facilities, and members of
Congress. In the sections below, DHS provides a topical summary of the
comments and responses to those comments.
A. Specific Chemicals or Types of Chemicals
1. In General
Comment: Commenters suggested that DHS should remove chemicals that
are widely used in the U.S., (e.g., acetone, chlorine, propane, sodium
nitrate, urea), asserting that such chemicals should not be regulated
as a chemical security risk. Some argued that commonly available
chemicals are unlikely targets of theft from a facility. Other
commenters provided specific arguments why DHS should not regulate
commonplace chemicals: Carbon monoxide is a common byproduct that can
occur frequently in everyday locations (e.g., from a car, heater, or
furnace). Hydrogen sulfide is a natural byproduct that is easily
generated, whether in labs during reactions or from geothermal
facilities.
Yet other commenters thought that there was only limited harm from
other chemicals, and so DHS should not regulate those chemicals. For
example, potassium nitrate and sodium nitrate do not ignite on their
own, therefore the explosive hazard from those chemicals is reduced,
and so DHS should not regulate these chemicals on their own. And, the
flashpoint of triethanolamine, at 212 degrees Fahrenheit, is so high
that it would have to be extremely hot for the chemical to heat up,
ignite, and become an explosive hazard.
Response: The Department has included the chemicals of interest in
Appendix A due to their potential, when used as part of an attack, to
create significant human life or health consequences. Each of these
chemicals presents at least one of the security issues described in
section II above. Not only has the Department carefully weighed the
value of including any given chemical, but the Department has clearly
defined the parameters for each chemical. In this final rule, the
Department has replaced the ``any amount'' STQs (that it proposed in
the IFR) with numerical quantities. The Department has also provided
instruction on how a facility should calculate an STQ and how a
facility should consider chemicals of interest in a mixture. See
Sec. Sec. 27.203 and 27.204.
In addition, the Department reiterates that possession of a
chemical of interest listed in Appendix A does not equate to coverage
under the standards in part 27. Possession of a chemical of interest at
the listed STQ is merely a trigger for a facility to complete and
submit a Top-Screen. Furthermore, when a facility completes a Top-
Screen, that information becomes but one factor in the Department's
determination of whether a facility presents a high level of security
risk.
In response to the comments about specific chemicals, the
Department replies as follows: DHS removed carbon monoxide from the
list as part of its larger decision to remove DOT Division 2.3 PIH
gases in Hazard Zone D. Carbon monoxide is a Hazard Zone D PIH gas. DHS
continues to list hydrogen sulfide on the list, because it meets the
Department's criteria for both release-toxic and theft/diversion-WME
chemicals. EPA lists hydrogen sulfide as a release-toxic on its RMP
list. Aside from the exceptions noted above, DHS has included as
release-toxics in Appendix A all of the toxics on EPA's RMP list. Also,
DOT identifies hydrogen sulfide as a Division 2.3 PIH gas, Hazard Zone
B. Aside from the exceptions noted above, DHS has included all of the
DOT Division 2.3 PIH gases as theft/diversion-WME chemicals in Appendix
A. DHS, however, excludes naturally occurring sources (such as
geothermal operations) of hydrogen sulfide pursuant to Sec.
27.203(a)(9). DHS continues to list potassium nitrate and sodium
nitrate, although they are
[[Page 65409]]
common oxidizers, they could be used to create IEDs. Finally, DHS
continues to list triethanolamine, because it can be easily converted
into a chemical weapon, not because of the flashpoint or other physical
characteristics of the chemical itself.
Comment: Commenters remarked on how some Appendix A chemicals of
interest, such as acetone, propane, and urea, are preferable to
possible substitutes not on Appendix A, due to their comparatively
lower toxicity or environmental impact. In particular, they noted that
the inclusion of certain chemicals means that facilities, in an attempt
to avoid going through the screening process, will transition away from
Appendix A chemicals and possibly toward more dangerous substitutes.
For example, in lieu of acetone, facilities might transition to the use
of more toxic solvents.
Response: With respect to the specific chemicals mentioned, DHS
notes that, for the reasons discussed above, DHS has removed acetone
and urea from the list of chemicals, and it has substantially revised
the STQ for propane. As for concerns that facilities will transition to
more dangerous substitute chemicals, DHS makes the following points.
Appendix A is DHS's first attempt to identify chemicals of interest
around which there are serious security concerns, and the aim of
Appendix A is to provide a screening tool for the DHS chemical security
regulatory program. If there is a need to address different or
additional chemicals in the future, DHS has the option of revising
Appendix A, subject to notice and comment when appropriate, to include
any different or additional chemicals. The Department also has the
ability to reach out directly to facilities it believes may present a
high level of security risk, even for chemicals not included in
Appendix A. See 27 CFR 27.210(a)(1)(ii).
While facilities covered by part 27 have flexibility in deciding
how to meet the part 27 requirements (for example, a facility can
choose to reduce, substitute, or eliminate its inventory of an Appendix
A chemical of interest at any time), DHS will, through its review of
Site Security Plans and visits to facilities, determine whether
facilities have adequately selected, developed, and implemented risk-
based measures designed to satisfy the risk-based performance
standards. See 27 CFR 27.225 and 27.245.
Comment: One association recommended that DHS exclude from the list
anhydrous ammonia used for food refrigeration and contained in closed-
loop refrigeration systems. Another individual, however, supported DHS
inclusion of facilities that use anhydrous ammonia either for
refrigeration during food processing and storage or as part of emission
controls for coal-fired electrical generation, because such facilities
are typically near population centers and transportation systems.
Several other commenters urged DHS to increase the 7,500 pound STQ for
anhydrous ammonia, so that it would match the TQ for other regulatory
programs.
Response: As a toxic chemical utilized across industries, DHS
believes that anhydrous ammonia can present a high risk and, under
certain circumstances, generate major consequences for human life or
health. Therefore, DHS continues to include anhydrous ammonia in the
list of chemicals. DHS, however, raised the STQ for anhydrous ammonia
to 10,000 pounds. That tracks the amount that EPA uses in its RMP
regulation. See 40 CFR 68.130, Table 1. DHS expects that facilities
will count toward their STQ the quantity of anhydrous ammonia stored as
part of a refrigeration system in addition to the quantity of anhydrous
ammonia in the actual system
Comment: Manufacturing plants pointed out that most plants need a
minimum inventory of nitric acid to operate efficiently. Commenters
assert that 2,000 pounds, the amount proposed in Appendix A, is too low
to operate efficiently, and therefore, large numbers of manufacturing
plants would have to go through the Top-Screen process. Other
commenters remarked that nitric acid is included in the inventory of
laboratories at colleges and universities.
Response: The Department continues to include nitric acid in
Appendix A given the security risks it presents. In large quantities,
nitric acid presents a release hazard, and so DHS has set the STQ at
15,000 pounds. In addition, DHS is aware that nitric acid, in smaller
quantities, is useful in creating IEDs. DHS has set the STQ for
divertible quantities of nitric acid (i.e., amounts in transportation
packagings) at 400 pounds.
2. Propane
In proposed Appendix A, the Department included propane on the list
of Chemicals of Interest (COI) with a STQ of 7,500 pounds.
Comment: DHS received almost 4,000 comments related to propane, and
many of these comments disagreed with the proposed inclusion of propane
and the proposed STQ for propane. There were comments from propane
distributors and retailers; agricultural businesses; private citizens;
and numerous small business, including forklift operators, camp
grounds, parks, bakeries, and construction companies.
Agricultural businesses indicated that they use propane for
multiple purposes, including heating their chicken and/or turkey
houses, drying produce, or keeping livestock and farm produce warm.
They indicated that many farms have multiple tanks of propane and that
the regulation will impact many small, family-owned farms, which will
have to complete the Top-Screen. Others pointed out that these propane
tanks on farms are often separated by a significant distance or a
building.
Propane distributors and retailers indicated that their main
customer base is residential, commercial/industrial, motor fuel,
agricultural, and wholesale. In the residential market, propane is used
primarily for home heating, water heating, and cooking purposes. Many
commenters stated that a significant percentage of their customer base,
including residential users, would have to complete and submit a Top-
Screen under the proposed threshold. They speculated that this might
force propane users to shift to other more environmentally hazardous
fuel sources. Retailers and distributors also claimed that customers
had already begun to request the completion and submission of the Top-
Screen on their behalf.
Commenters asserted that the worst case scenario of an explosion
from a 1,000 gallon tank of propane is only approximately 500 feet for
a 1 psi over-pressure condition. While that type of incident is enough
to break windows and cause injuries due to glass shrapnel, they did not
think it would be likely to cause structural damage and, hence, should
not be considered as a national security threat.
Many commenters felt that that DHS had gone beyond the limitations
contained in Section 550 of the Department of Homeland Security
Appropriations Act of 2007, which they asserted provides that nothing
in the rules can supersede other federal laws pertaining to the
manufacture, distribution in commerce, use, or sale of chemicals. See
Section 550(f). Commenters offered suggestions for revisions. Many
commenters suggested that DHS should incorporate the statutory
exemptions from EPA's Risk Management Program rules, including the
statutory exemptions from the Chemical Safety Information, Site
Security, and Fuels Regulatory Relief Act (Pub. L. 106-40). Commenters
also proposed that DHS add a footnote to the Appendix A entry for
propane, indicating that regulated entities need not count all propane
storage tanks of
[[Page 65410]]
less than 1,200 gallons toward the threshold amount.
Response: The Department continues to include propane in the list
of chemicals in Appendix A. The Department has not adopted the
statutory exemption from the Chemical Safety Information, Site
Security, and Fuels Regulatory Relief Act (Pub. L. 106-40). That Act
amended the Clean Air Act to remove flammable fuels from the list of
substances with respect to which reporting and other activities are
required under the risk management plan program, and for other
purposes. EPA codified that provision at 40 CFR 68.126. Congress did
not include such a provision exempting propane in the authorizing
legislation for part 27, and so DHS has not exempted propane from part
27. The Department disagrees with the statement that the Department has
gone beyond the limitations contained in Section 550. The listing of
propane in Appendix A merely triggers the requirement that a facility
(possessing the listed amount) complete and submit a Top-Screen to DHS.
That, in no way, supersedes any other federal law regulating
manufacture, sale, or use of propane.
The Department, however, has changed several provisions related to
propane, as discussed in section II(D)(1). The Department believes its
approach to securing significant stocks of propane is informed,
manageable, and proportionate to its existing use and risk profile. In
response to the comment about propane storage tanks, the Department
notes that, per Sec. 27.203(b)(3), DHS will not require facilities to
include quantities of propane in tanks of 10,000 pounds or less.
3. Chlorine
In proposed Appendix A, the Department included chlorine on the
list with an STQ of 1,875 pounds.
Comment: Many commenters provided input on DHS's inclusion of
chlorine on the COI list. The majority of commenters encouraged DHS to
use the EPA RMP TQs for all RMP release-toxic chemicals, including
chlorine. They argued that the RMP TQ of 2,500 pounds is a well-
reasoned number and that the chemical industry is familiar with that
number. As an additional argument against an STQ of 1,875 pounds,
commenters argued that large amounts of chlorine are readily available
through production or purchase given its diversified uses in and across
the water treatment, electronics, steel, pharmaceutical, and plastics
industries. Similarly, other commenters asserted that water and
wastewater treatment facilities possess chlorine, however those
locations are not chemical facilities in a traditional sense and
therefore they are lower risk locations.
By contrast, one individual commenter recommended a lower STQ for
chlorine. The commenter suggested that DHS should lower the STQ for
chlorine to 150 pounds, which is the size of a commonly available
commercial cylinder. The commenter was concerned that the theft of
small containers of chlorine would enable a terrorist to use chlorine
gas in attacks on public gatherings.
Response: While the Department recognizes the importance of
chlorine to the Nation's critical infrastructure and key resources, and
especially the chemical sector, the Department also realizes that the
theft/diversion of chlorine to develop a WME is a serious security
concern. Recent terrorist incidents involving chlorine cylinders in
Iraq have reinforced this concern. To balance these concerns, the
Department has developed a revised approach toward chlorine, which is
discussed in section II(D)(2) above. With this approach, the Department
hopes to facilitate the introduction and implementation of security
standards that prevent the theft or diversion of chlorine for terrorist
purposes without unduly interfering with the continued, legitimate
production, transportation, and use of chlorine. In response to the
comment about public water systems and water treatment systems, the
Department notes that it has excluded those systems consistent with the
statutory exclusion in Section 550 (see Sec. 27.110(b)).
4. Ammonium Nitrate (AN)
In proposed Appendix A, the Department included ammonium nitrate
(nitrogen concentration of 28%-34%) on the list of COI with a STQ of
2,000 pounds.
Comment: There were several comments about AN with most commenters
supporting the inclusion of AN on the COI list. Several commenters
remarked on the reduced availability of AN fertilizer due to liability
concerns over its use in terrorism. Commenters expressed differing
opinions on the percentage of nitrogen in AN that DHS should consider
for purposes of preventing AN's use as an explosive precursor.
Commenters requested clarification of the STQ and whether it applied to
solid, liquid, and/or mixtures of AN.
Response: DHS revised its approach toward ammonium nitrate, as
discussed above in section II(D)(3). This revised approach recognizes
that AN is integral to the agriculture and explosives industries, yet
also seeks to satisfy the DHS mandate to enhance the security of
facilities that present a high level of risk.
5. Acetone and Urea
In proposed Appendix A, the Department included acetone and urea on
the list, each with an STQ of 2,000 pounds.
Comment: The Department also received a large number of comments on
acetone and urea. Commenters from a wide array of industries remarked
on the important uses and widespread availability of these two
chemicals. Commenters noted that, while other regulatory regimes cover
acetone and urea, they typically do so for amounts lower than the
proposed STQ of 2,000 pounds.
Response: The Department's initial concerns around acetone and urea
centered on its potential theft and diversion for use as an explosives
precursor. After considering the comments received and consulting with
expert sources, including the FBI Explosives Unit and the report
produced by the National Research Council, the Department does not
believe that acetone and urea need to be tracked as closely the
Department tracks other explosives precursors, especially concentrated
hydrogen peroxide and nitric acid. The Department has removed acetone
and urea from the list of Chemicals of Interest in Appendix A.
6. Chemical Weapons (CW) and Chemical Weapons Precursors (CWP)
Comment: While commenters supported the Department's reference to
the Schedules of chemicals from the CWC, commenters generally noted
that applying an STQ of ``any amount'' for all CWC chemicals was
unnecessarily low. With the exception of Schedule 1 chemicals, which
are weapons and therefore merit a relatively low STQ, commenters
thought that the ``any amount'' STQ would create unreasonable
compliance challenges for facilities. Commenters urged DHS to use the
CWC Schedule 2 TQs for Schedule 2 CW/CWP chemicals. Commenters also
remarked on the widespread commercial use of triethanolamine (a
Schedule 3 chemical) in and across the chemical, personal care, and
consumer products industries.
Response: The Department has replaced all ``any amount'' STQs for
theft/diversion-CW/CWP chemicals with numerical quantities. The
Department did not use the CWC TQs for Schedule 2 chemicals because
those
[[Page 65411]]
amounts are too high. Those higher amounts are designed to prevent the
development of state-level chemical weapons programs, not to prevent
acts of chemical terrorism. DHS identified the STQ for Schedule 2
chemicals (at 2.2 pounds) by identifying how much one would need of the
chemical to convert it easily into a weapon using simple chemistry. DHS
included triethanolamine and several other Schedule 3 chemicals in the
final appendix due to the ease with which they may be weaponized.
7. Explosives
Comment: The American Pyrotechnics Association requested that DHS
remove four oxidizers (ammonium perchlorate greater than 15 microns in
size, potassium chlorate, potassium nitrate, and potassium perchlorate)
from the list of chemicals in Appendix A. The American Pyrotechnics
Association explained that, while these chemicals are used in
pyrotechnic mixtures, they would neither create a highly toxic cloud
nor could they be used in an explosive, flammable, or reactive manner
until they were properly blended with an energetic fuel. In order to
create an oxidizer and fuel bomb, one must go through extensive and
difficult steps to obtain the materials and then must have the proper
training to mix the chemicals in the proper ratio. In other words,
terrorists would have to complete extensive measures to secure
chemicals that would do very little damage. Commenters noted that
neither DOT nor ATF classify the four oxidizers as explosives, and so
therefore DHS should not either.
Response: DHS has considered the American Pyrotechnics
Association's comments and, based on consultations with expert sources
(including the FBI Explosives Unit) the Department has determined that
it is still desirable to include these four oxidizers on the list of
chemicals in Appendix A. DHS is including ammonium perchlorate on the
list, because it is a DOT Class 1, Division 1.1 explosive that presents
two security issues (see section II(C) above): theft/diversion-EXP/IEDP
and release-explosive. It is at risk of theft and misuse for making
explosives, and it could present a release hazard from a successful
attack on a facility with a large (5,000 pounds or greater) inventory.
DHS is including the three potassium compounds (potassium chlorate,
potassium nitrate, and potassium perchlorate), because they are IED
precursors that warrant enhanced security. The National Research
Council listed these chemicals in its report titled Containing the
Threat from Illegal Bombings: An Integrated National Strategy for
Marking, Tagging, Rendering Inert, and Licensing Explosives and Their
Precursors. The FBI's Explosives Unit has validated such conclusions
for DHS.
8. Hydrogen Peroxide
Comment: Given the availability of acetone, one commenter requested
that DHS remove acetone from the list and retain hydrogen peroxide at
30%, if DHS was concerned about these chemicals being misused to make
Triacetone Triperoxide (TATP). Commenters from the food, feed, steel,
cleaning, and other industries remarked on the varied uses for
commercial strength hydrogen peroxide as well as hydrogen peroxide
formulations. The majority of commenters recommended that DHS adopt
OSHA's and EPA's standard approach to listing hydrogen peroxide at a
52% concentration under their Process Safety Management (PSM)
regulations and Risk Management Program (RMP), respectively.
Response: DHS listed hydrogen peroxide in the proposed Appendix A
and continues to list it as a theft/diversion-EXP/IEDP chemical in
final Appendix A because of its proven potential as an IEDP. In the
final appendix, the Department listed ``hydrogen peroxide
(concentration of at least 35%)'' on the list of chemicals and also set
the minimum concentration for hydrogen peroxide at 35%. For a
discussion of the Department's approach to hydrogen peroxide, see
section II(C)(5) above.
Commenters have requested that DHS use a 52% concentration for
hydrogen peroxide, which they assert would be consistent with certain
OSHA and EPA standards. While DHS understands industry's preference for
consistent rules across federal agencies, DHS notes that DHS's mandate
is distinct from other federal agencies that already regulate hydrogen
peroxide. Both OSHA and EPA are concerned with accidental release and/
or the detonation of hydrogen peroxide and so regulating concentrations
of 52% or greater is reasonable given their mandates. DHS is charged
with ensuring effective security at high risk chemical facilities. The
security issue around hydrogen peroxide, a common IED precursor,
demanded that DHS identify the concentration at which hydrogen peroxide
is potentially useful to terrorists as an IED precursor. DHS, in
consultation with the FBI, has determined that concentration to be at
or above 35%. In any event, setting the Appendix A concentration at 35%
for triggering the Top-Screen requirements in no way precludes any
facility from meeting OSHA or EPA standards.
B. Coverage of Appendix A
1. Colleges and Universities
Comment: Colleges, universities, and university medical centers;
associations that represent these institutions; and individuals
associated with such institutions requested that DHS exempt these
institutions or modify the rule to address the use of chemicals of
interest at these institutions. Many colleges and universities endorsed
the comments of the Campus Safety Health and Environmental Management
Association (CSHEMA), which asserted that chemicals of interest do not
pose a significant risk when they are widely dispersed in many
locations, and in extremely small quantities per location, as is
typical with colleges and universities. CSHEMA contended that DHS must
not have intended to include colleges and universities given DHS's
estimate of the number of affected facilities. CSHEMA also asserted
that Appendix A imposes a heavy burden on colleges and universities and
that the task of submitting a Top-Screen will be onerous for colleges
and universities; in particular CSHEMA asserts that the time and cost
burden of complying with the Top-Screen requirement will be
exponentially higher than that which DHS estimated. CSHEMA made several
recommendations; namely, that DHS replace all ``any amount'' STQs with
a numeric quantity (CSHEMA suggested a minimum STQ of 100 pounds).
CSHEMA also recommended that DHS exclude chemicals in containers of one
pound or less and that DHS create a per-laboratory STQ.
Other commenters provided similar comments. They explained that
Appendix A includes numerous chemicals of interest that are found or
synthesized at colleges and universities in amounts that exceed the
``any amount'' STQs. As a result, nearly all colleges, universities,
and university hospitals would be required to complete and submit a
Top-Screen. Because COI in extremely small quantities (typically
milligram or gram quantities per container) are widely dispersed in
many locations throughout universities, the commenters believe that
these facilities pose no significant security risk. Commenters were
also concerned that, while no one location on campus might exceed a
threshold, the campus or university as a whole (particularly since
there might be multiple campuses), might exceed an STQ. Commenters
suggested that DHS provide an
[[Page 65412]]
exemption, as does OSHA and EPA regulations, for laboratories that use
small quantities of hazardous materials.
Many college and universities described the security procedures
that they currently have in place and stated that such procedures are
adequate to protect against the security risks that they face. They
asserted that it would impose significant burdens to exceed these
measures. For example, while they currently do some chemical tracking,
they believe that identifying and tracking very small amounts of
chemicals for Appendix A purposes would impose a substantial new
burden. Furthermore, they did not think that the risk posed by these
quantities justifies the substantial burden that tracking would impose.
Others maintained that, while locations can be secured, other security
measures contained in the Site Security Plans would be antithetical to
institutions of higher learning.
As an alternative to seeking an exemption from the regulation for
colleges and universities, commenters made a variety of other
suggestions. A few commenters urged DHS to adopt different STQs or to
exclude chemicals of interest that are used in laboratories at colleges
and universities. They recommended that DHS replace ``any amount'' with
numeric threshold quantities and that DHS base those quantities on
amounts used by other federal agencies. Other commenters proposed a per
container limit for COI, similar to what the EPA uses for its Spill
Prevention Control and Countermeasure regulations. See 40 CFR part 112.
As noted above, CHSEMA proposed a one pound limit per container.
Commenters also recommended DHS only regulate pure chemicals,
explaining that a chemical that is part of a commercial product,
formulation, or dilute solution should not be a COI.
Response: Facilities that possess any of the chemicals listed in
Appendix A at or above the STQ for any applicable security issue must
complete and submit a Top-Screen. See Sec. 27.200(b)(2) and Sec.
27.210(a)(1)(i). Accordingly, the Department expects that all
facilities, including colleges and universities, that possess such
chemicals will complete and submit a Top-Screen. Because the need to do
a Top-Screen is driven by the possession of chemicals, not the location
of the chemicals, DHS can not simply exempt chemicals located at
colleges and universities. In addition, the Department notes that
existing federal regulatory schemes (e.g., those of the Centers for
Disease Control and Prevention (CDC), Drug Enforcement Agency (DEA),
and CWC) do not exempt colleges, universities, and university medical
centers from their chemical-related regulatory programs.
Furthermore, given the apparent current state of security at
academic institutions, DHS believes that exclusion of colleges and
universities is not warranted. Based on the comments DHS received from
colleges and universities, the Department understands that security
varies dramatically across academic institutions. Representatives of
the academic community acknowledged that they possess chemicals of
interest. While some adhere to broad security strategies, others
admitted having an incomplete or non-existent inventory of the contents
and quantities of chemicals and no affordable or timely means of
compiling an inventory.
While the requirements of Appendix A will continue to apply to
academic institutions, there are several revisions to Appendix A, many
of which should allay the concerns of academic institutions. First, DHS
is providing colleges and universities with the option to request an
extension of time to complete and submit their Top-Screens following
the publication of a final Appendix A. The president, dean, provost, or
other senior official at a college or university may request an
extension from the Assistant Secretary for Infrastructure Protection,
and DHS may grant that request for up to 60 additional calendar days
following the publication of final Appendix A.
Second, as discussed throughout this final rule, the Department has
removed various chemicals from the list. Of note to academic
institutions, the Department has removed acetone. Similarly, the
Department has adjusted STQs for chemicals. The Department has assigned
numeric quantities to all of the previous ``any amount'' STQs. Of note
to academic institutions, DHS has changed the STQ for triethanolamine
(a theft/diversion-CW/CWP chemical) from ``any amount'' to 220 pounds.
Third, the Department has added an exclusion for facilities that
possess laboratory quantities of release-toxic, release-flammable, and
release-explosive chemicals. See Sec. 27.203(b)(2). This tracks the
exemption that EPA uses in its RMP program. Note, however, that while a
facility need not count laboratory quantities of release chemicals of
interest toward the facility's STQ, a facility must still count
laboratory quantities of theft/diversion and sabotage/contamination
chemicals of interest toward the facility's STQ.
Fourth, all facilities, including colleges and universities, have
flexibility in defining the boundaries of their facility and
identifying the party at their institution that is responsible for
compliance.\60\ The requirements of part 27 are facility-specific. As
such, an institution of higher learning can, if appropriate, submit a
Top-Screen on a building-to-building basis or a campus-wide basis. This
is comparable to the situation for owners or operators of a multi-unit
enterprise. See 72 FR 17688, 17697.
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\60\ Part 27 defines a ``chemical facility or facility'' as
``any facility that possesses or plans to possess, at any relevant
point in time, a quantity of a chemical substance determined by the
Secretary to be potentially dangerous or that meets other risk-
related criterion identified by the Department. As used herein, the
term chemical facility or facility shall also refer to the owner or
operator of the chemical facility. Where multiple owners and/or
operators function within a common infrastructure or within a single
fenced area, the Assistant Secretary may determine that such owners
and/or operators constitute a single chemical facility or multiple
chemical facilities depending on the circumstances.'' See Sec.
27.100.
As noted in the preamble to the IFR, DHS believes that it will
generally be straightforward for facilities to define their
boundaries and identify the party (at their facility) responsible
for compliance with the regulation. DHS acknowledges that, in some
circumstances, the issue might be more complex. The Department will
address those situations on a case-by-case basis. See 72 FR 17697.
In addition, as indicated in the definition of ``chemical
facility,'' the Assistant Secretary has the authority, where
necessary, to make a determination about the operations at given
facility or facilities. The Assistant Secretary may make the
determination that a facility is a single chemical facility or
multiple chemical facilities.
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Fifth, even if academic institutions get screened into this
regulatory program (i.e., they complete the Top-Screen, DHS classifies
them as a high-risk facility, and they have to develop and implement
SVAs and SSPs), the academic institutions may well have security
measures in place that will help them meet the applicable risk-based
performance standards. See Sec. 27.230 (indicating that a facility
must select, develop in their SSP, and implement appropriately risk-
based measures designed to satisfy the risk-based performance standards
listed in Sec. 27.230(a)(1)-(19)). In that case, the additional burden
of complying with this regulation would consist of either creating a
CSAT SSP or referencing measures in an existing security plan by way of
an Alternate Security Program (ASP). See Sec. 27.235 ``Alternative
Security Program.'' Colleges and universities may benefit from working
together to develop an ASP template specifically tailored to the
research environment in an academic setting.
2. Medical Research Organizations and Similar Laboratories
Comment: The assertions in the comments from medical research
institutes and other similar laboratories largely resembled those of
the colleges
[[Page 65413]]
and universities. These comments came not only from medical research
institutes but from non-production, non-diagnostic research
laboratories; ancillary facilities at non-profit, non-commercial
research organizations; operators of pharmaceutical laboratories; and
companies that conduct research as a part of their business (e.g.,
industrial or food processing research and development laboratories,
environmental testing labs, and testing or monitoring facilities).
They argued that their institutions are not ``high risk chemical
facilities.'' They also claimed that they use COI in the same way that
colleges and universities do--that is, they have large numbers of
chemicals and reagents in very small quantities, in small containers,
and at multiple locations within a facility. In addition, they asserted
that they did not comment on the Advance Notice of Rulemaking, because
they did not believe that rule would cover them. Pharmaceutical
research facilities asserted these security efforts would be very
burdensome and would divert a large amount of time and resources away
from their critical, life-saving research.
Several of those commenters expressed concern about the ``any
amount'' threshold. Those commenters included individuals and entities
that conduct field calibration for pipelines and operations, operate
compliance labs, sterilize instruments, and conduct blood or tissue
test. A few commenters pointed out that the ``any amount'' threshold
would mean that entities like clinics and dental offices would have to
submit Top-Screens.
Commenters requested that DHS exempt their laboratories or
operations from the rule. In the alternative, the commenters requested
other forms of relief, such as replacing the ``any amount'' STQ for
common laboratory chemicals with a STQ of 10 pounds per storage
location or 100 pounds per building; establishing a per container limit
of 1 pound; setting higher levels for ubiquitous substances (such as
acetone and triethanolamine); or defining a facility to include a
storage location.
Response: DHS directs readers to the response provided for colleges
and universities, as that response is directly applicable to these
comments by medical research institutes and other similar laboratories.
The requirement to complete the Top-Screen is driven by the possession
of certain chemicals in specified quantities, and DHS does not agree
that the nature of a facility's operation alone warrants an exclusion.
As such, the Department expects that medical research institutes and
like institutions that possess any of the chemicals listed in Appendix
A at or above the STQ for any applicable security issue will complete
and submit a Top-Screen. See Sec. 27.200(b)(2) and Sec.
27.210(a)(1)(i). DHS also directs readers to the discussion of
revisions to Appendix A, which is provided in the response to colleges
and universities. Those revisions should address many of the concerns
of medical research institutes and like institutions.
3. Farms and the Agricultural Industry; Fumigation Industry
Comment: Several commenters, including farmers and other
agricultural users of chemicals, asserted that they should be exempt
from this rule, explaining that they extensively use chemicals like
acrolein, ammonium nitrate (nitrogen concentration of 28%-34%), and
sodium chlorate. Because farmers use these chemicals on farms for
agricultural purposes, and often do so in remote and rural locations,
commenters did not think that these chemicals raised any security
concerns. Other commenters expressed concern that if DHS made
exceptions for certain facilities (especially in the agricultural
industry), loopholes would emerge and companies would exploit those
loopholes in order to gain a financial edge.
Several commenters asserted that DHS should exempt urea fertilizer,
because it is widely-used. Another commenter requested that DHS work
with agricultural producer groups in order to find appropriate ways to
regulate commonly-used nitrogen fertilizers such as ammonia solutions,
anhydrous ammonia, and urea. Commenters believed that the potential
hazard or risk posed by these chemicals, particularly in a rural farm
setting, is minimal and should not trigger the regulation of farms as
``chemical facilities.'' Yet other commenters agreed that DHS should
exempt urea but for a different reason; they asserted that chemicals
that are already highly regulated may not need the additional
requirements of this rule, but the fact that a chemical like urea is
not highly regulated supports the argument that the chemical by itself
is not harmful.
Commenters from the fumigation industry pointed out that DHS
security regulation of chemicals (such as methyl bromide, chloropicrin,
and sulfuryl fluoride) is unnecessary, since these substances are
commonly used in the fumigation industry and already regulated under
other federal regulatory schemes. In addition, commenters pointed out
that there are licensing and control standards for these substances.
Moreover, these chemicals are usually kept in small amounts in small
containers under secure conditions by people who are licensed.
Response: Pursuant to the authorizing legislation for part 27, the
Department has exempted select facilities from this regulation. See
Section 550(a) and Sec. 27.110(b). Commenters to both the Advance
Notice and to Appendix A requested that DHS exempt additional
facilities and industries, such as universities, medical research
institutes, and farms. Consistent with its position in the IFR, DHS has
not provided any additional regulatory text exemptions. See 67 FR
17688, 17699.
There are risks with facilities possessing certain amounts of
certain chemicals, and the Department is seeking to address these risks
under its new authority in Section 550. This extends to all facilities
that present high levels of security risk and possess chemicals that
may be of interest to terrorists. Moreover, these risks are associated
with the characteristics and quantity of the chemical, rather than the
business or activity associated with the industry or facility. As such,
it would not be appropriate for DHS to exempt, by regulation, entire
types of activities or industries.
Nevertheless, the Department realizes the commercial importance of
Appendix A chemicals of interest and does not seek to undermine their
legitimate production, use, and/or sale. To that end, the Department
has made numerous changes to the appendix and discusses them in section
II of this preamble. In short, DHS has clearly identified the security
issue(s) associated with each chemical, removed the ``any amount''
STQs,\61\ removed chemicals (including acetone and urea), and developed
a specialized approach for certain chemicals (including propane and
AN). In addition, as discussed in the relevant sections above, DHS
notes that it removed methyl bromide and chloropicrin from the list of
chemicals in Appendix A.
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\61\ See footnote 64.
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4. Overlap With Other Federal Entities
Comment: Many commenters expressed concern that the new rule
creates regulatory redundancy. They indicated that numerous federal
agencies, including ATF, DOT, DOJ, EPA, OSHA, TSA, and USCG, already
have regulations on the identified chemicals and that some of these
agencies heavily regulate companies that deal with chemicals.
Commenters explained that companies that store and
[[Page 65414]]
transport these materials must conduct a comprehensive risk and
vulnerability assessment based on storage prior to transport, personnel
security, unauthorized access, and en route security. Commenters
indicated that they would like to see consistency and cooperation
between agencies.
Commenters argued that DHS should remove chemicals that are already
regulated by other federal agencies and pointed to several examples.
Commenters asserted that the EPA, through the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., and DOT
regulates chemicals such as methyl bromide, chloropicrin, and sulfuryl
fluoride. Other commenters asserted that the EPA, through the Emergency
Planning and Community Right to Know Act, 42 U.S.C.11011 et seq., and
the Occupational Safety and Health Administration regulate hydrogen
peroxide (concentration of at least 30%). And yet other commenters
pointed out that DOT regulates propane; DOT, along with EPA, regulates
phosphine; and the DOC regulates triethanolamine under its Chemical
Weapons Convention (CWC) regulations.
Other commenters recommended that DHS exempt facilities that are
regulated by other federal agencies. Specifically, commenters requested
exemptions for facilities that have already complied with EPA's Risk
Management Program; natural gas pipelines and utility facilities that
DOT's Pipeline and Hazardous Materials Administration (PHMSA)
regulates; and facilities that have been screened out of the Maritime
Transportation Security Act (MTSA) (e.g., offshore oil and gas
facilities). Commenters asserted that the EPA RMP regulations, PHMSA
pipeline and U.S. Coast Guard MTSA regulations assess facilities with
similar criteria (i.e., potential risk to the public, the environment,
and economic health) and therefore thought that DHS efforts would be
redundant and a waste of resources. Many small businesses commented
that it would be difficult for them to keep up with part 27 and other
federal regulations, especially since TQs and STQs vary between
agencies.
Several commenters suggested that DHS should set its STQs
consistent with those of other federal agencies or regulatory programs
(e.g., OSHA, EPA, DOC). Commenters most frequently recommended that DHS
use EPA RMP TQs and either substitute them categorically for all STQs
or at least for the proposed ``any amount'' STQs. One commenter
recommended that a chemical of interest that is also an extremely
hazardous substance under EPA's Emergency Planning and Notification
regulations at 40 CFR part 355 should have an STQ no lower than its
threshold planning quantity.
With respect to explosives, commenters pointed out that the
explosives industry is already heavily regulated by DOT, the Department
of Justice (DOJ), and ATF and is subject to risk assessments.
Commenters believe the DHS efforts would be redundant and excessive for
a low-threat industry. By contrast, another commenter suggested that
DHS expand the list of COI to incorporate those substances regulated by
the ATF. The commenter stated that explosives present security risks
beyond manufacturing (such as transportation, end storage, and
potential theft) that need to be taken into account.
Response: The Department recognizes that multiple federal entities
regulate matters related to chemicals. In the Advance Notice to part
27, the Department discussed pre-existing chemical security and safety
programs, such as those of the USCG, EPA, OSHA, and ATF. The Department
notes, however, that each entity regulates chemicals for distinct
reasons. Congress has given each entity a different mandate, and so
each entity must satisfy its mandate. For example, OSHA is concerned
with, inter alia, the protection of employees that use certain
chemicals in the workplace. DOT is concerned with the safe and secure
transportation of hazardous materials. EPA, through its RMP program, is
concerned with preventing an accidental release of certain chemicals.
DHS, however, is concerned with the security implications of facilities
possessing these chemicals. Congress has given DHS explicit authority
to regulate security at chemical facilities.
To the extent there is overlap in the jurisdiction and efforts of
multiple federal entities, DHS will work with those entities to
coordinate efforts. Within DHS, the Department has already undertaken
steps among headquarters and component offices (e.g., USCG, DHS Office
of Infrastructure Protection/Chemical Security Compliance Division
(CSCD), and TSA) to coordinate the application and enforcement of
regulatory programs related to chemical security. There are liaison
positions within CSCD for individuals from other DHS offices and
components. In addition, DHS has developed informal and formal working
groups to coordinate Departmental regulatory authorities in the
chemical sector. With respect to federal entities outside of DHS, the
Department will consider the necessity of various formalized
arrangements, such as an inter-agency coordination process to resolve
jurisdictional questions or conflicts, as this regulatory program
develops.
Despite the differing mandates between federal agencies that
regulate chemicals, the Department has looked to the regulatory
programs of these other federal agencies for guidance and direction.
The Department found great value in considering a number of these
regulatory programs, including those of the ATF, DOC, Department of
Energy (DOE), DOT, EPA, and OSHA. In fact, the Department references,
uses, and cites many of these regulations in this rule.
With respect to offshore oil and gas facilities, as discussed in
the IFR at 72 FR 17699, the Department notes that the statute (Section
550) and the regulation (Sec. 27.110(b)) exempt facilities regulated
pursuant to MTSA.
5. Concerns About Being Over-Inclusive
Section 27.105 defines a chemical facility as an establishment that
``possesses or plans to possess, at any relevant point in time, a
quantity of a chemical substance determined by the Secretary to be
potentially dangerous or that meets other risk-related criteria
identified by the Department.''
Comment: Numerous commenters stated that this definition of a
``chemical facility,'' along with the chemicals and STQs listed in
proposed Appendix A, will capture far more facilities than Congress
originally intended. Commenters were concerned that these facilities,
which they did not consider high risk facilities, would need to
complete and submit a Top-Screen because of the proposed COI and STQs.
For example, 105 of the 331 chemicals on the proposed list have a STQ
with no ``de minimis'' quantity (i.e., an STQ of ``any amount.'').
Among those listed are many common chemicals (e.g., carbon monoxide)
that can be found in many low risk facilities. As a result of the
proposed list of COI and STQs, the rule would end up covering many
entities that would not expect to be covered, such as rural schools,
summer camps, universities, research facilities, farms, agricultural
retailers, grocery stores, fumigators, and residential homes.
Commenters asserted that if DHS did not alter its definition of
chemical facility, the chemicals in the COI list, and the STQs on the
COI list, DHS would receive a drastically larger number of Top-Screens
(than the 40,000 Top-Screens, which DHS estimated in regulatory
evaluation for the IFR). Commenters argued that the number of Top-
Screens would be as high as hundreds of thousands, perhaps even
[[Page 65415]]
millions. Commenters believe this will bog down the review process, use
too many resources on low risk facilities, and become counter-
productive in the attempt to secure the homeland.
Commenters were also concerned that if entities which did not
expect to be included (e.g., farmers, small business owners, or home
owners) are, in fact, included in Appendix A and expected to complete
the Top-Screen, those entities will not know of the requirement and not
comply, thereby incurring possible penalties and other consequences
(e.g., filing fees, costs associated with hiring DHS compliance
consultants).
Response: In part 27, the Department classifies chemical facilities
as high risk based on the presence of chemicals that may be an
attractive target for terrorists. DHS has identified security issue(s)
for each chemical, and that security issue is associated with the
characteristics and quantity of the chemical. If a facility possesses
that chemical at the specified amount, the Department expects that the
facility will complete a Top-Screen.
While the Department has not narrowed its definition of ``chemical
facility,'' \62\ the Department has refined the list of chemicals, as
well as the parameters for including chemicals. See section II of the
preamble. Among the changes, DHS established many new STQs, eliminated
the ``any amount'' STQ, and has included new calculation provisions.
The Department expects that these changes will effectively exclude most
farmers, home owners, and small businesses from the Top-Screen process.
The Department believes that its estimate regarding entities that will
complete the Top-Screen continues to be accurate.
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\62\ For a discussion on the definition of ``chemical
facility,'' see footnote 61.
---------------------------------------------------------------------------
In addition, the Department is providing some clarification on the
coverage of truck terminals. The Department is taking the same approach
toward truck terminals that it has taken toward railroad facilities.
See 72 FR 17698-17699. DHS presently does not plan to screen truck
terminals for inclusion in the Section 550 regulatory program, and
therefore DHS will not request that owners and operators of truck
terminals complete the Top-Screen risk assessment methodology. DHS and
its components, including TSA, have concurrent and overlapping
jurisdiction with respect to certain aspects of chemical security. DHS
is working, and will continue to work, to address this overlapping
jurisdiction and to determine whether it would want to include trucking
terminals in its chemical security program. As with railroad
facilities, DHS may, in the future re-evaluate the coverage of trucking
terminals. DHS would do so by issuing a rulemaking considering the
matter.
Finally, in response to commenters who indicate that there may be a
lack of awareness about these requirements, the Department notes that
publication of a document in the Federal Register is official notice of
a document's existence and its contents to those parties that may be
subject to it or affected by it. In this case, the IFR and this final
rule puts all affected parties on notice that they must comply with the
terms of part 27. Despite this fact, the Department has undertaken
outreach efforts since the publication of this IFR and will continue to
do so.
C. Screening Threshold Quantities
1. In General
Comment: There were many comments about the STQs assigned to the
chemicals in the list. The majority of commenters recommended that DHS
increase the STQs, arguing that the proposed STQs were too low.
Commenters asserted that DHS should significantly increase the STQs to
relieve the burden on very low risk facilities. Other commenters argued
that low STQs for common, widely-used chemicals will impose a huge
burden on industry overall as well as a burden on small entities that
make small amounts of several, different chemicals. By contrast, only
one individual commenter recommended a downward STQ adjustment (for
chlorine).
Response: The Department has revised its approach to Appendix A,
including substantial changes to the STQs. The changes are discussed in
depth above in section II(C).
Comment: Some individuals noted that a particular site or facility
might have several locations where there is a small quantity of a COI,
but in the aggregate the site could have more than an STQ. The
commenters asked whether the threshold amount should be applied to the
entire site, even if the different locations within the site are widely
separated from one another. Another commenter thought that DHS should
clarify its definition of STQ to include ``all sources of a given
chemical from a given facility, not just single sources with quantities
that exceed STQs.''
Response: As DHS discussed in the comment response about colleges
and universities, facilities have flexibility to define their
boundaries and identify the party (or parties) at their institution
that is responsible for compliance. The requirements of part 27 are
facility-specific.
Comment: A commenter suggested that, because of varying uses or
toxicity, DHS list STQs in smaller units of measures (i.e., grams) in
addition to pounds.
Response: Where appropriate, the Department has listed STQs in
units other than pounds. For example, the Department lists the
cumulative STQ for specified theft/diversion-CW/CWP chemicals at 100
grams.
2. Modifying the ``Any Amount'' STQ
Comment: Several commenters expressed an opinion on the ``any
amount'' STQ in the proposed appendix. Many commenters urged DHS to
replace the ``any amount'' STQs with numeric levels. One commenter
encouraged DHS to set the thresholds at amounts that reflect what
experts believe is sufficient to produce an off-site consequence to the
public as a result of attack, theft, or conversion into a weapon of
mass destruction.
Yet other commenters asked DHS to clarify the meaning of ``any
amount.'' For example, one individual asked how a facility would know
when it came into possession of ``any amount.'' Other commenters
pointed out that certain COI are ingredients in many nonhazardous
products, such as foods and cosmetics, and therefore thought that DHS
would not have intended for those products to be subject to the rule.
For example, an 8-ounce glass of whole milk contains approximately 230
milligrams of phosphorus, and yet DHS listed phosphorus as a COI with
an STQ of ``any amount.''
Other commenters noted that if DHS retained the ``any amount'' STQ,
every home, grocery store, and school with only a detectable amount
would have to comply with the regulation. These commenters did not
think that such a tiny amount of chemicals would make a viable
terrorist target. Other commenters suggested that the ``any amount''
STQ would create a larger burden for both DHS and facilities that would
otherwise not be affected by this rule. This, in turn, would divert
limited resources away from those facilities that can actually be
considered terrorist targets. A food industry commenter believed that
overly expansive coverage would cause facilities in the industry to
focus on chemical security compliance rather than potential threats to
the food supply.
Response: The Department has removed the ``any amount STQs'' from
the list, and for the vast majority of chemicals, DHS assigned a
numeric
[[Page 65416]]
quantity to the STQ for each chemical.\63\ The revised STQs are geared
toward the hazard and consequences associated with the chemical.
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\63\ for sabotage/contamination chemicals, a facility meets the
STQ if it possesses A Placarded Amount--i.e., if it ships the listed
chemical of interest and is required to placard the shipment of that
chemical pursuant to DOT regulations at 49 CFR part 172. DOT
regulations identify the amounts (such as ``any quantity'' or
``1,001 lbs or more) for which placarding is required.'' See 49 CFR
172.504.
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3. Mixtures and Solutions
Comment: Several individuals, entities, and organizations believed
that the proposed appendix was unclear about the applicability of STQs
to mixtures and solutions. Commenters argued that the concentration of
a COI is the most important factor affecting potential harm. Commenters
asserted that when a COI is listed in Appendix A without a percent
concentration, then the STQ should apply to the weight of the pure
substance, not to the weight of a mixture or solution. Alternatively,
commenters suggested that DHS should establish minimum concentrations
for all COI. Some commenters noted that the properties of a mixture
might be significantly different from the properties of the listed COI
that caused the mixture to be considered a health or security risk. One
commenter suggested that DHS should exclude mixtures from the list,
since most chemical mixtures do not share the same risk profile as
their pure compound counterpart (e.g., acetone, cyanides, fertilizers,
and gas mixtures).
Response: The Department recognizes the importance of providing
guidance on mixtures, and as discussed in section II, the Department
added a new regulatory section that addresses mixtures. See Sec.
27.204. The Department generally disagrees with commenters who assert
that chemical mixtures are not a security concern. For example, toxic
chemical mixtures are a security concern given their ability to
vaporize from the mixture and potentially create a toxic cloud.
Similarly, certain minimum concentrations of poisonous gases,
particularly the highly toxic gasses, are potential weapons even in
extremely low concentrations.
D. Revisions to the COI List
1. Technical Corrections
Comment: A handful of commenters noted that DHS had duplicate
entries for chemicals in proposed Appendix A. The Department listed
each of the four following chemicals twice, with a different STQ (``any
amount'' and 2000 pounds) for each entry: (1) Phosphorus oxychloride,
(2) phosphorus pentachloride, (3) phosphorus trichloride, and (4)
thionyl chloride.
In addition, the Department listed each of the following three
chemicals twice by listing the chemical under two synonymous names: (1)
Calcium dithionite and calcium hydrosulfite, (2) sodium dithionite and
sodium hydrosulfite, and (3) zinc dithionite and zinc hydrosulfite. The
Department not only listed each of the following two chemicals twice by
listing the chemical under two synonymous names, but also listed a
different STQ under each name: (1) Hydrogen cyanide (any amount) and
hydrocyanic acid (1,875 pounds), and (2) carbonyl sulfide (any amount)
and carbon oxysulfide (7,500 pounds).
Commenters noted that Appendix A listed incorrect CAS numbers for
the following six chemicals: hexyltrichlorosilane, sodium phosphide,
hexotonal, chromium oxychloride, diethyl phosphate, and dimethyl
phosphate.
Response: The Department appreciates the input from commenters on
chemical names and CAS numbers. The Department used that information to
ensure the accuracy of Appendix A. To that end, the Department has
removed and revised duplicate entries, corrected CAS numbers, and added
a column to the appendix containing commonly-used synonyms for certain
chemicals of interest.
2. Formatting and Approach
Comment: A few commenters recommended that DHS parallel the DOT
hazard class approach in classifying and listing chemicals. The
Institute of Makers of Explosives (IME) made this suggestion in the
context of explosives. To illustrate their point, the IME provided
examples of chemicals in the same hazard class as several COI included
in the Department's chemical-by-chemical approach.
Response: As noted in the IFR, DHS's primary approach in this
appendix is through the association of individual chemicals with
specific security issues. While DHS will not preclude the use of hazard
classes for other purposes (e.g., in the risk-based performance
standard guidelines), DHS is not using the DOT hazard class approach at
this point in time.
Comment: One commenter suggested that DHS add the following generic
``Not Otherwise Specified'' (N.O.S.) chemicals to the COI list: Poison
Gas, N.O.S.; Flammable Gas, N.O.S.; Flammable Liquid, N.O.S.;
Spontaneous Combustible Liquid, N.O.S.; Organic Peroxide, N.O.S.;
Poison Inhalation Hazard, N.O.S. The commenter suggested that DHS
assign large STQ values to these N.O.S. chemicals.
Response: For the reasons discussed above in sections II(C)(2) and
II(C)(4), the Department is not using the DOT approach of categorizing
chemicals,\64\ and so DHS has not included N.O.S. chemicals on the COI
list.\65\ Instead, DHS has included chemicals on the COI list if they
are uniquely identifiable. The Department, of course, retains its
discretion to expand the COI list to include these or other chemicals
in the future, as necessary.
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\64\ Through its Hazardous Material Table in 49 CFR 172.101, DOT
regulates the transportation of hazardous materials. For each
material listed, DOT identifies a hazard class, provides the proper
shipping name, and specifies the applicable requirements (e.g.,
labeling, packaging, etc). To denote hazardous materials without a
specific shipping name, DOT uses the suffix ``N.O.S.'' and a generic
shipping name.
\65\ The only exception is germanium tetrafluoride, which DHS
discusses in section (II)(C)(4)(a) above.
---------------------------------------------------------------------------
Comment: A commenter requested that DHS list the chemicals in CAS
numerical sequence in addition to listing them in alphabetical order.
Response: At this time, the Department will not list chemicals in
CAS numerical sequence. The Department has, however, re-formatted the
final Appendix, making it more user-friendly.
E. Other Comments
1. Procedural Issues
Comment: Many commenters were upset that DHS did not publish
Appendix A in the Advance Notice. A large number of commenters wanted
the comment period for Appendix A extended for an additional 30 to 60
days. Many commenters thought that 30 days was not a sufficient amount
of time to fully digest and analyze the regulations.
Response: Congress provided the Department with six months to
promulgate interim final regulations on chemical security. See Section
550(a). The Department not only met that short deadline, but it
published both an Advance Notice and IFR within that six-month period.
While the Department did not include Appendix A in the Advance Notice,
it nonetheless has provided the public with an opportunity to comment
on the appendix.
In the IFR, the Department provided the public with 30 days to
comment on proposed Appendix A. The Department was unable to extend
that time period, given that the Department is seeking to facilitate
the expeditious implementation of this chemical security regulatory
program. Until the Department finalizes Appendix A, the
[[Page 65417]]
Department cannot fully implement this program.
Comment: A few commenters asked that DHS incorporate procedures for
changing the chemicals and STQs in Appendix A. Commenters want to be
able to request that DHS delist (or remove) a chemical from Appendix A.
Other commenters asked that DHS provide a 90 day comment period when
adding chemicals.
Response: DHS plans to periodically update the list of chemicals in
Appendix A and will do so through notice and comment. At this time, DHS
is not including a petition process like that of EPA, where members of
the public may petition the EPA to add or delete substances from the
RMP list. See 40 CFR 27.120.
Comment: Commenters asked that the media be more involved in
conveying information about the final rule, because they believe that
there are many smaller businesses that are potentially affected and yet
are not aware of these new standards. Commenters are concerned that
individuals and businesses could face severe financial penalties or
unfair prosecution if they lack a full understanding of the rule and
fail to comply.
Response: The Department recognizes the need for ongoing and
expanded outreach on this regulatory program, and the Department has
already initiated such outreach. For example, the Department began
participating in conferences soon after the effective date of part 27
(e.g., the American Chemistry Council's ChemSecure Security Conference
and Expo from April 17-19, 2007). The Department has also supported
other events, such as the 2007 Chemical Sector Security Summit on June
11-13, 2007, which was convened by the Chemical Sector Coordinating
Council.\66\ In addition, the Department provides informative and up-
to-date resources about part 27 on its Web site (http://www.dhs.gov/chemicalsecurity). The Department is interested in collaborating with
private and public stakeholders, as well as the media, in the interest
of promoting a full understanding of, and effective compliance with,
part 27.
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\66\ For information on the conference, see http://www.dhs.gov/xprevprot/programs/gc_1176736485793.shtm
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2. Compliance Issues
Comment: Several commenters asked DHS for clarification on
identifying the responsible party for submitting information through
the Top-Screen. One commenter asked who, if anyone, is responsible to
submit a Top-Screen, in each of the following three scenarios: (1) If
an American company buys a COI from one country and ships it directly
to another country without ever possessing it; (2) If an American
company buys a COI from a foreign nation and temporarily stores it for
resale to another USA or Canadian company; and, (3) If an American
company buys a COI above the threshold limit from an overseas producer
and sells it to another USA company without ever handling it in their
facility.
Response: Part 27 applies to facilities located in the U.S. All
facilities located in the U.S., including both domestic and foreign
companies, that possess chemicals at the applicable STQ must complete
and submit a Top-Screen. The converse is that a facility which does not
operate in the U.S. and never possesses chemicals in the U.S., even if
it is a U.S. company, does not have to complete and submit a Top-
Screen.
An American company that purchases chemicals of interest from one
foreign country and ships it to another foreign country, without ever
possessing the chemical in the U.S. does not need to complete and
submit a Top-Screen. Any company, whether domestic or foreign, that
stores chemicals of interest in the U.S. in quantities that at any time
meet or exceed the STQ must complete and submit a Top-Screen. The
Department realizes there are numerous, complicated business
arrangements. Where a facility is unsure about its responsibility for
compliance, the facility should consult with the Department pursuant to
Sec. 27.120, and the Department can work with the facility to resolve
those issues.
Comment: Other commenters raised concerns about third party
responsibility. Commenters wanted to know who was responsible for
complying with part 27 if a company or individual relies upon a third
party to store and secure an Appendix A chemical above the STQ. There
was also confusion over third party contractors/vendors who temporarily
store COI on-site while completing a job. Commenters explained that the
challenge is to determine who completes and submits, and how often, a
Top-Screen for a temporary tank. Storage of COI may be temporary or
transient in nature, which creates confusion about how to apply the
definition of facility to COI. A few commenters asked if a landlord is
responsible for ensuring compliance with DHS regulations if their
tenant company leases a warehouse and stores a COI above its allotted
threshold.
Response: Whether a landlord or tenant is responsible for
submitting a Top-Screen will depend on which party is responsible for
security of the chemical. The party responsible for the security of the
chemical is responsible for submitting the Top-Screen. This may vary
depending on the operational and/or contractual relationship between
the parties.
Comment: A few commenters suggested that, in determining whether a
facility possesses the chemicals in Appendix A at the quantities that
trigger a Top-Screen, DHS should not include quantities of a chemical
of interest that a facility is using or processing on-site. In some
cases, a process might create a chemical of interest but not result in
the storage of that chemical of interest. For example, carbon monoxide
produced during combustion is transitory, and sulfur dioxide and sulfur
trioxide are created and consumed during flue gas conditioning.
Response: A facility shall calculate the STQ for release-toxic
chemicals, such as sulfur trioxide, based on a facility's total
inventory of the chemical. The Department has added clarity to this
issue, by adding calculation provisions for each security issue.
Section Sec. 27.203(b)(1)(iii), in particular, provides that
facilities shall include in their release STQ chemicals of interest
that are present as process intermediates, by-products, or materials
produced incidental to the production of a product. The Department
notes that it no longer includes carbon monoxide on the list of
chemicals in Appendix A.
Comment: Commenters asked whether a facility, after not having a
COI for an extended period of time, would have to re-submit a Top-
Screen if the facility obtained a COI above the STQ.
Response: Under Sec. 27.210(a)(1)(i), a facility that possesses
any of the chemicals listed in Appendix A at or above the corresponding
STQs must complete and submit a Top-Screen within 60 calendar days of
the effective date of this final rule. In addition, a facility that
comes into possession of any of the chemicals in Appendix A at the
listed STQs must complete and submit a Top-Screen within 60 calendar
days of coming into possession of the chemicals (emphasis added).
Comment: Commenters suggested that DHS establish a ``holding-time''
threshold for chemicals, with time frames including 30 days and 60
days. Some commenters suggested an exemption for facilities that
possess chemicals only for short periods of time.
Response: DHS has not established a ``holding-time'' threshold for
chemicals. If terrorists have a reason to know that
[[Page 65418]]
an attractive chemical is present at a facility, the duration for which
it is present is largely irrelevant. As a result, a facility must
submit and complete a Top-Screen if it possesses chemicals of interest
in a quantity that at any time meets the STQ.
3. Miscellaneous
Comment: One commenter was concerned that there was a lack of
information describing the tier-based risk assessments. Another
commenter indicated that they were unable to submit comprehensive
comments, because DHS has not established criteria and performance
standards for determining risk-based tiers.
Response: Although these comments are outside the scope of the
rulemaking, the Department provides a response, in the hopes of
promoting a fuller understanding of part 27. The Department is
preparing a comprehensive guidance document that provides detailed
explanations for the requirements by tier. The Department will make
this guidance document available to facilities that have a need to know
the information.
Comment: Commenters expressed concerns about the financial impact
of these new regulations on the American economy. Some feel that the
regulations would impose a larger financial burden on U.S.-based
companies, giving foreign companies an advantage. One commenter, in
particular, was concerned that there will be an undue economic burden
on local businesses if DHS requires background checks for any level of
facility. This, in turn, could lead to non-compliance.
A few commenters requested that DHS establish and publish
qualifications for reviewers \67\ and that DHS require reviewers to
register with CSAT. Other commenters noted that the EPA and other
agencies release operating information to the public; they thought that
DHS, however, should, for security reasons, maintain as classified the
information that it collects because of part 27. Another commenter,
after noting that registration is only internet-based, requested that
paper registration be made available for areas that do not have public
internet access.
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\67\ A facility has the option of designating a reviewer for its
facility. A reviewer is an individual who can review, but not enter,
edit, or submit, information in the CSAT system. A facility can add
a reviewer any time after the CSAT User Registration process.
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One commenter was concerned that the Chemical Security Regulatory
Task Force, which consists of five trained individuals, would not be
able to guide the thousands of facilities seeking guidance on these
regulations. A few commenters were concerned about DHS's ability to
process information requests quickly enough so that requesting
companies would not be denied or penalized as a result.
A commenter recommended that DHS replace the open-ended questions
in the Top-Screen (which asks for the value of products shipped from
facilities) with a pull down menu listing ranges of values. The
commenter thought that this would help incorporate the smaller sites
that are exempt from the comparatively high thresholds for declaring
and hosting inspections of chemical weapons and their precursors under
the CWC.
Response: These comments are outside the scope of this rulemaking,
which addresses the list of chemicals in Appendix A.
IV. Regulatory Analyses
A. Executive Order 12866: Regulatory Planning and Review
DHS prepared and placed in the docket a Regulatory Assessment
addressing the economic impact of the IFR. See 72 FR 172688. That
Regulatory Assessment is applicable to this final rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) mandates that an agency
conduct an RFA analysis when an agency is required to publish a notice
of proposed rulemaking. See 5 U.S.C. 603(a). Because the Department was
not required to publish a notice of proposed rulemaking for part
27,\68\ the Department was not required to conduct a RFA analysis.
Nevertheless, the Department did consider the impacts of part 27 on
small entities, providing that analysis in the Regulatory Assessment
for the IFR. See 72 FR 172688. That analysis is applicable to this
final rule.
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\68\ By directing the Secretary to issue ``interim final
regulations,'' Congress authorized the Secretary to proceed without
the traditional notice-and-comment required by the Administrative
Procedure Act. See 71 FR 78276.
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List of Subjects
Chemical security, Facilities, Incorporation by reference,
Reporting and recordkeeping, Security measures.
The Final Rule
For the reasons set forth in the preamble, the Department of
Homeland Security revises part 27 to Title 6, Code of Federal
Regulations, to read as follows:
Title 6--Department of Homeland Security
Chapter 1--Department of Homeland Security, Office of the Secretary
PART 27--CHEMICAL FACILITY ANTI-TERRORISM STANDARDS
0
1. The authority citation for part 27 continues to read as follows:
Authority: Pub. L. 109-295, sec. 550.
0
2. Add the following definitions, in alphabetical order, to Sec.
27.105, to read as follows:
Sec. 27.105 Definitions.
* * * * *
A Commercial Grade (ACG) shall refer to any quality or
concentration of a chemical of interest offered for commercial sale
that a facility uses, stores, manufactures, or ships.
A Placarded Amount (APA) shall refer to the STQ for a sabotage and
contamination chemical of interest, as calculated in accordance with
Sec. 27.203(d).
* * * * *
Chemical of Interest shall refer to a chemical listed in Appendix A
to part 27.
* * * * *
CUM 100g shall refer to the cumulative STQ of 100 grams for
designated theft/diversion-CW/CWP chemicals and which is located in
Appendix A to part 27 as the entry for the STQ and Minimum
Concentration of certain theft/diversion-CW/CWP chemicals.
* * * * *
Security Issue shall refer to the type of risks associated with a
given chemical. For purposes of this part, there are four main security
issues:
(1) Release (including toxic, flammable, and explosive);
(2)Theft and diversion (including chemical weapons and chemical
weapons precursors, weapons of mass effect, and explosives and
improvised explosive device precursors),
(3) Sabotage and contamination, and
(4) Critical to government mission and national economy.
* * * * *
0
3. Amend Sec. 27.200 by revising paragraph (b)(2) to read as follows:
Sec. 27.200 Information regarding security risk for a chemical
facility.
* * * * *
(b) * * *
(2) A facility must complete and submit a Top-Screen in accordance
with the schedule provided in Sec. 27.210, the calculation provisions
in Sec. 27.203, and
[[Page 65419]]
the minimum concentration provisions in Sec. 27.204 if it possesses
any of the chemicals listed in Appendix A to this part at or above the
STQ for any applicable Security Issue.
* * * * *
0
4. Add Sec. 27.203 to read as follows:
Sec. 27.203 Calculating the screening threshold quantity by security
issue.
(a) General. In calculating whether a facility possesses a chemical
of interest that meets the STQ for any security issue, a facility need
not include chemicals of interest:
(1) Used as a structural component;
(2) Used as products for routine janitorial maintenance;
(3) Contained in food, drugs, cosmetics, or other personal items
used by employees;
(4) In process water or non-contact cooling water as drawn from
environment or municipal sources;
(5) In air either as compressed air or as part of combustion;
(6) Contained in articles, as defined in 40 CFR 68.3;
(7) In solid waste (including hazardous waste) regulated under the
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et. seq., except
for the waste described in 40 CFR 261.33;
(8) in naturally occurring hydrocarbon mixtures prior to entry of
the mixture into a natural gas processing plant or a petroleum refining
process unit. Naturally occurring hydrocarbon mixtures include
condensate, crude oil, field gas, and produced water as defined in 40
CFR 68.3.
(b) Release Chemicals.--(1) Release-Toxic, Release-Flammable, and
Release-Explosive Chemicals. Except as provided in paragraphs (b)(2)
and (b)(3), in calculating whether a facility possesses an amount that
meets the STQ for release chemicals of interest, the facility shall
only include release chemicals of interest:
(i) In a vessel as defined in 40 CFR 68.3, in a underground storage
facility, or stored in a magazine as defined in 27 CFR 555.11;
(ii) In transportation containers used for storage not incident to
transportation, including transportation containers connected to
equipment at a facility for loading or unloading and transportation
containers detached from the motive power that delivered the container
to the facility;
(iii) Present as process intermediates, by-products, or materials
produced incidental to the production of a product if they exist at any
given time;
(iv) In natural gas or liquefied natural gas stored in peak shaving
facilities; and
(v) In gasoline, diesel, kerosene or jet fuel (including fuels that
have flammability hazard ratings of 1, 2, 3, or 4, as determined by
using National Fire Protection Association (NFPA) 704: Standard System
for the Identification of the Hazards of Materials for Emergency
Response [2007 ed.], which is incorporated by reference at
27.204(a)(2)) stored in aboveground tank farms, including tank farms
that are part of pipeline systems;
(2) Release-Toxic, Release-Flammable, and Release-Explosive
Chemicals. Except as provided in paragraph (c)(2)(i), in calculating
whether a facility possesses an amount that meets the STQ for release-
toxic, release-flammable, and release-explosive chemicals, a facility
need not include release-toxic, release-flammable, or release-explosive
chemicals of interest that a facility manufactures, processes or uses
in a laboratory at the facility under the supervision of a technically
qualified individual as defined in 40 CFR 720.3.
(i) This exemption does not apply to specialty chemical production;
manufacture, processing, or use of substances in pilot plant scale
operations; or activities, including research and development,
involving chemicals of interest conducted outside the laboratory.
(ii) [Reserved]
(3) Propane. In calculating whether a facility possesses an amount
that meets the STQ for propane, a facility need not include propane in
tanks of 10,000 pounds or less.
(c) Theft and Diversion Chemicals. In calculating whether a
facility possesses an amount of a theft/diversion chemical of interest
that meets the STQ, the facility shall only include theft/diversion
chemicals of interest in a transportation packaging, as defined in 49
CFR 171.8. Where a theft/diversion-Chemical Weapons (CW) chemical is
designated by ``CUM 100g,'' a facility shall total the quantity of all
such designated chemicals in its possession to determine whether the
facility possesses theft/diversion-CW chemicals that meet or exceed the
STQ of 100 grams.
(d) Sabotage and Contamination Chemicals. A facility meets the STQ
for a sabotage/contamination chemical of interest if it ships the
chemical and is required to placard the shipment of that chemical
pursuant to the provisions of subpart F of 49 CFR part 172.
0
5. Add Sec. 27.204 to read as follows:
Sec. 27.204 Minimum concentration by security issue.
(a) Release Chemicals--(1) Release-Toxic Chemicals. If a release-
toxic chemical of interest is present in a mixture, and the
concentration of the chemical is equal to or greater than one percent
(1%) by weight, the facility shall count the amount of the chemical of
interest in the mixture toward the STQ. If a release-toxic chemical of
interest is present in a mixture, and the concentration of the chemical
is less than one percent (1%) by weight of the mixture, the facility
need not count the amount of that chemical in the mixture in
determining whether the facility possesses the STQ. Except for oleum,
if the concentration of the chemical of interest in the mixture is one
percent (1%) or greater by weight, but the facility can demonstrate
that the partial pressure of the regulated substance in the mixture
(solution) under handling or storage conditions in any portion of the
process is less than 10 millimeters of mercury (mm Hg), the amount of
the substance in the mixture in that portion of a vessel need not be
considered when determining the STQ. The facility shall document this
partial pressure measurement or estimate.
(2) Release-Flammable Chemicals. If a release-flammable chemical of
interest is present in a mixture in a concentration equal to or greater
than one percent (1%) by weight of the mixture, and the mixture has a
National Fire Protection Association (NFPA) flammability hazard rating
of 4, the facility shall count the entire amount of the mixture toward
the STQ. Except as provided in Sec. 27.203(b)(1)(v) for fuels that are
stored in aboveground tank farms (including farms that are part of
pipeline systems), if a release-flammable chemical of interest is
present in a mixture in a concentration equal to or greater than one
percent (1%) by weight of the mixture, and the mixture has a National
Fire Protection Association (NFPA) flammability hazard rating of 1, 2,
or 3, the facility need not count the mixture toward the STQ. The
flammability hazard ratings are defined in NFPA 704: Standard System
for the Identification of the Hazards of Materials for Emergency
Response [2007 ed.]. The Director of the Federal Register approves the
incorporation by reference of this standard in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. You may obtain a copy of the incorporated
standard from the National Fire Protection Association at 1
Batterymarch Park, Quincy, MA 02169-7471 or http://www.nfpa.org. You
may inspect a copy of the incorporated standard at the Department of
Homeland Security, 1621 Kent Street, 9th Floor, Rosslyn VA (please call
703-235-0709) to make an appointment or at
[[Page 65420]]
the or at the National Archives and Records Administration (NARA). For
information on the availability of material at NARA, call 202-741-6030,
or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. If a release-flammable chemical of
interest is present in a mixture, and the concentration of the chemical
is less than one percent (1%) by weight, the facility need not count
the mixture in determining whether the facility possesses the STQ.
(3) Release-Explosive Chemicals. For each release-explosive
chemical of interest, a facility shall count the total quantity of all
commercial grades of the chemical of interest toward the STQ, unless a
specific minimum concentration is assigned in the Minimum Concentration
column of Appendix A to part 27, in which case the facility should
count the total quantity of all commercial grades of the chemical at
the specified minimum concentration.
(b) Theft and Diversion Chemicals. (1) Theft/Diversion-Chemical
Weapons (CW) and Chemical Weapons Precursors (CWP Chemicals: Where a
theft/diversion-CWC/CWP chemical of interest is not designated by ``CUM
100g'' in Appendix A, and the chemical is present in a mixture at or
above the minimum concentration amount listed in the Minimum
Concentration column of Appendix A to part 27, the facility shall count
the entire amount of the mixture toward the STQ.
(2) Theft/Diversion-Weapon of Mass Effect (WME) Chemicals: If a
theft/diversion-WME chemical of interest is present in a mixture at or
above the minimum concentration amount listed in the Minimum
Concentration column of Appendix A to part 27, the facility shall count
the entire amount of the mixture toward the STQ.
(3) Theft/Diversion-Explosives/Improvised Explosive Device
Precursor (EXP/IEDP) Chemicals. For each theft/diversion-EXP/IEDP
chemical of interest, a facility shall count the total quantity of all
commercial grades of the chemical toward the STQ, unless a specific
minimum concentration is assigned in the Minimum Concentration column
of Appendix A to part 27, in which case the facility should count the
total quantity of all commercial grades of the chemical at the
specified minimum concentration.
(c) Sabotage and Contamination Chemicals. For each sabotage/
contamination chemical of interest, a facility shall count the total
quantity of all commercial grades of the chemical toward the STQ.
0
6. Amend Sec. 27.210 by revising paragraph (a)(1)(i) to read as
follows:
Sec. 27.210 Submissions Schedule.
* * * * *
(a)(1)(i) Unless otherwise notified, within 60 calendar days of
November 20, 2007 for facilities that possess any of the chemicals
listed in Appendix A at or above the STQ for any applicable Security
Issue, or within 60 calendar days for facilities that come into
possession of any of the chemicals listed in Appendix A at or above the
STQ for any applicable Security Issue; or
* * * * *
0
7. Revise Appendix A to part 27 to read as follows:
Appendix A to Part 27: DHS Chemicals of Interest
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Michael Chertoff,
Secretary of Homeland Security, Department of Homeland Security.
[FR Doc. 07-5585 Filed 11-19-07; 8:45 am]
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