Tuesday, November 20, 2007

Part II

Department of Homeland Security 6 CFR Part 27 Appendix to Chemical Facility Anti- Terrorism Standards; Final Rule

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DEPARTMENT OF HOMELAND Table of Contents EPA—Environmental Protection Agency SECURITY EXP—Explosives I. Background FBI—Federal Bureau of Investigation II. The Final Rule: The Revised List of 6 CFR Part 27 IED—Improvised Explosive Device Chemicals IEDP—Improvised Explosive Device [DHS–2006–0073] A. Overall Approach to Appendix A Precursors B. Effect of a Final Appendix A LNG—Liquefied Natural Gas RIN 1601–AA41 C. Provisions by Security Issue NFPA—National Fire Protection Association 1. Release-Toxics and Release-Flammables NOS—Not Otherwise Specified Appendix to Chemical Facility Anti- 2. Release-Explosives NPGA—National Propane Gas Association Terrorism Standards 3. Theft/Diversion-Chemical Weapons/ RMP—EPA’s Risk Management Program Chemical Weapons Precursors SVA—Security Vulnerability Assessment AGENCY: Department of Homeland 4. Theft/Diversion-Weapons of Mass Effect SSP—Site Security Plan Security. 5. Theft/Diversion-Explosives/Improvised STQ—Screening Threshold Quantity ACTION: Final rule. Explosive Device Precursors TQ—Threshold Quantity 6. Sabotage/Contamination TSA—Transportation Security SUMMARY: This final rule revises the list D. Chemicals With a Specialized Approach Administration of chemicals of interest, or COI, which 1. Propane VBIED—Vehicle-Borne Improvised Explosive the Department of Homeland Security 2. Chlorine Device (DHS or the Department) included as 3. Ammonium Nitrate WME—Weapon of Mass Effect Appendix A to the Chemical Facility E. Technical Corrections III. Discussion of Comments I. Background Anti-Terrorism Standards Interim Final A. Specific Chemicals or Types of On October 4, 2006, President George Rule. Appendix A lists chemicals of Chemicals interest and screening threshold W. Bush signed the Department of 1. In General Homeland Security Appropriations Act quantities, or STQs. Any facility that 2. Propane possesses (or later comes into 3. Chlorine of 2007 (the Act), which provided the possession of) the listed chemicals in 4. Ammonium Nitrate Department of Homeland Security with quantities that meet or exceed the STQ 5. Acetone and Urea the authority to regulate the security of for any applicable security issue must 6. Chemical Weapons and Chemical high risk chemical facilities. See Pub. L. complete and submit a Top-Screen. This Weapons Precursors 109–295, § 550. Section 550 required the 7. Explosives Secretary of Homeland Security to will assist the Department in 8. Hydrogen Peroxide determining whether a facility presents promulgate interim final regulations B. Coverage of Appendix A ‘‘establishing risk-based performance a high level of security risk. 1. Colleges and Universities In this final rule, DHS, among other standards for security of chemical 2. Medical Research Organizations and facilities’’ by April 4, 2007 and specified things: (i) Adjusts the STQs for certain Similar Laboratories COI; (ii) defines the specific security 3. Farms and the Agricultural Industry; that the regulations ‘‘shall apply to issue or issues implicated by each Fumigation Industry chemical facilities that, in the discretion chemical of interest, and in some cases, 4. Overlap With Other Federal Entities of the Secretary, present high levels of establishes different STQs for COI based 5. Concerns About Being Over-Inclusive security risk.’’ Id. upon the security issue presented; and C. Screening Threshold Quantities Pursuant to Section 550, on December 1. In General (iii) adds provisions that instruct 28, 2006, the Department issued an 2. Modifying the ‘‘Any Amount’’ STQ Advance Notice of Rulemaking facilities on how to calculate the 3. Mixtures and Solutions quantities of COI that they have in their (Advance Notice), which discussed a D. Revisions to the COI List range of regulatory and implementation possession. 1. Technical Corrections These refinements to Appendix A will 2. Formatting and Approach issues. See 71 FR 78276. By directing assist the Department in more precisely E. Other Comments the Secretary to issue ‘‘interim final identifying facilities that may be 1. Procedural Issues regulations,’’ Congress authorized the designated as high risk, while reducing 2. Compliance Issues Secretary to proceed without the the burden on facilities that possess 3. Miscellaneous Comments traditional notice and comment required chemicals in smaller amounts. IV. Regulatory Analyses by the Administrative Procedure Act. A. Executive Order 12866: Regulatory See 71 FR 78276, 78277. The EFFECTIVE DATES: The effective date of Planning and Review Department, however, saw great benefit Appendix A to part 27, as added on B. Regulatory Flexibility Act in soliciting comments on as much of April 9, 2007 (72 FR 17688) and revised the program as was practicable in the by this rule is November 20, 2007. Abbreviations and Terms Used in This short timeframe permitted under the Additionally, the regulations published Document statute and therefore voluntarily sought in this document are effective November ACG—A Commercial Grade comment on the Advance Notice, 20, 2007. The incorporation by reference AN—Ammonium Nitrate including a range of significant of certain publications listed in the rule APA—A Placarded Amount programmatic issues and regulatory text. is approved by the Director of the ASP—Alternative Security Program CAS—Chemical Abstract Service On April 9, 2007, the Department Federal Register as of November 20, issued an Interim Final Rule (IFR), 2007. CGA—Compressed Gas Association COI—Chemicals of Interest which responded to the comments to FOR FURTHER INFORMATION CONTACT: CSAC—Chemical Security Analysis Center the Advance Notice and established a Marybeth Kelliher, Chemical Security CSAT—Chemical Security Assessment Tool new part 27 to Title 6 of the Code of Compliance Division, Department of CUM 100g—Cumulative STQ of 100 grams Federal Regulations. See 72 FR 17688. Homeland Security, 703–235–5263. for Designated Chemical Weapons Part 27 establishes risk-based CVI—Chemical-terrorism Vulnerability SUPPLEMENTARY INFORMATION: Note that Information performance standards for the security for brevity, all references to CFR parts CW—Chemical Weapons of our Nation’s chemical facilities. The will be to parts in Title 6 of the Code CWC—Chemical Weapons Convention rule requires covered chemical facilities of Federal Regulations (6 CFR), unless CWP—Chemical Weapons Precursors to prepare Security Vulnerability otherwise noted. DOT—U.S. Department of Transportation Assessments (SVAs) that identify

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facility security vulnerabilities. The rule II. The Final Rule: The Revised List of contamination.4 Two categories have also requires covered chemical facilities Chemicals three subcategories each. The ‘‘release’’ category has three subcategories: (1) to develop and implement Site Security A. Overall Approach to Appendix A Plans (SSPs) that identify measures that Release-Toxic: Chemicals with the satisfy the identified risk-based While the universe of chemicals in potential to create a toxic cloud that performance standards. It also allows Appendix A has remained substantially would affect populations within and certain covered chemical facilities, in the same, the Department has re- beyond the facility, if intentionally specified circumstances, to submit structured the format of the appendix released; (2) Release-Flammables: Alternate Security Programs (ASPs) in and has more clearly defined the chemicals with the potential to create a provisions associated with these vapor cloud explosion that would affect lieu of an SVA, SSP, or both. In chemicals. The Department has populations within and beyond the addition, the rule contains associated included a considerable amount of facility, if intentionally released; and (3) provisions addressing inspections and additional information in the appendix Release-Explosives: chemicals with the audits, recordkeeping, and the as well as some new provisions to the potential to affect populations within protection of information that regulatory text. The changes that the and beyond the facility if intentionally constitutes Chemical-terrorism Department has made have come detonated. The ‘‘theft and diversion’’ Vulnerability Information (CVI). Finally, directly from comments or otherwise category also has three subcategories: (1) the rule provides the Department with logically resulted from comments where Theft/Diversion-Chemical Weapons authority to compel compliance through DHS agreed that the comments raised (CW)/Chemical Weapons Precursors the issuance of orders, including orders valid points and were within the scope (CWP): chemicals that could be stolen or assessing civil penalties and orders to of the proposed appendix. diverted and used as CW or easily cease operations. The proposed appendix listed only a converted into CW; (2) Theft/Diversion- The IFR, except for Appendix A to chemical and a corresponding Chemical Weapons of Mass Effect (WME): part 27, went into effect on June 8, 2007. Abstract Service (CAS) number,1 chemicals that could be stolen or Appendix A contained a tentative list of however the final appendix includes diverted and used directly as WME; and Chemicals of Interest (COI). DHS that information as well as a new (3) Theft/Diversion-Explosives (EXP)/ Improvised Explosive Device Precursors accepted comments on the tentative list column with commonly-used synonyms (IEDP): chemicals that could be stolen or of chemicals in Appendix A (hereafter for certain chemicals. The final appendix also adds several new diverted and used in explosives or IEDs. referred to as proposed Appendix A or columns that identify the security The third category, ‘‘sabotage/ proposed appendix) for 30 days until issue(s) associated with each chemical contamination,’’ refers to those May 9, 2007. With this final rule, the of interest (COI).2 In addition, the chemicals that, if mixed with other Department responds to those Department has assigned an STQ and readily-available materials, have the comments and provides a final list of minimum concentration provision to potential to create significant adverse Chemicals of Interest in Appendix A. each chemical of interest. The final consequences for human life or health. The same principles that guided the appendix, unlike the proposed The Department has established Department during the development of appendix, does not trigger reporting baseline STQs for the chemicals of the proposed list have guided the obligations based on possession of an interest for each security issue. (DHS Department during the development of STQ of ‘‘any amount.’’ 3 discusses the baselines in this preamble this revised list, and those main In the final appendix, the Department and also summarizes the general rules principles are summarized here. First, has listed the security issue(s) in Table 1: ‘‘Summary of General Rules DHS did not use any single, existing list associated with each chemical of by Security Issue’’ at the end of this as its sole source or classify all interest. Although these same security section). DHS has set the STQ for each chemicals on any existing list in a issues drove the Department’s selection chemical of interest at the baseline particular way. Instead, DHS used of chemicals for inclusion in the amount for that chemical’s security multiple sources, so that it could obtain proposed appendix, the Department did issue(s). Where necessary, the a more complete picture of the universe not list (in the proposed appendix) the Department has identified a few of facilities that may qualify as high security issue(s) for each particular exceptions. Most notably, DHS has risk. Second, in identifying the chemical. This additional information developed a specialized approach for chemicals and STQs for chemicals, the provides guidance to regulated entities, propane, chlorine, and ammonium nitrate. Department sought to strike an so that they better understand how to use the appendix, and it explains the Each chemical in Appendix A appropriate balance: Sufficiently presents at least one security issue, and inclusive of chemicals in quantities that Department’s rationale(s) for including these chemicals, at these STQs, on the might present a high level of risk under 4 list. As noted in the IFR and consistent with the the statute without being overly definition of ‘‘security issue’’ in § 27.105, the The seven columns on the far right of inclusive and thereby capturing Department recognizes one additional security the appendix contain the chemical facilities that are unlikely to present a issue—critical to government mission and national facility security issues that the economy. (DHS has added a definition of security high level of risk. Third, the Department Department has identified for this issue in this final rule at § 27.105.) The loss or interruption in production of certain chemicals, has identified chemicals by considering appendix. There are three main security issue(s) associated with a materials, or facilities could create significant categories of security issues: Release, adverse consequences for national security, the chemical. The Department has theft/diversion, and sabotage/ national or regional economy, and/or the ability of identified the COI for preliminary the government to deliver essential services. The screening based on the belief that these Department plans to assess currently-available 1 CAS numbers are unique identifiers for information and to collect new information (e.g., chemicals, if released, stolen or chemical substances. through the Top-Screen process) as a means of diverted, and/or contaminated, have the 2 The Department has added definitions for identifying facilities responsible for these types of potential to create significant human life Chemical of Interest (COI) and Security Issue to chemicals. At this time, DHS is not including any § 27.105 ‘‘Definitions.’’ chemicals in the appendix based on this security and/or health consequences. 3 See footnote 64. issue, though it may do so in the future.

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some chemicals present multiple that EPA applies these exemptions to underground storage facility refers to a security issues. Where there are release chemicals (i.e., those which it below-ground storage location for multiple issues associated with a regulates under RMP), while DHS chemicals of interest or mixtures of chemical, a facility must complete and applies these exclusions to all part 27 chemicals of interest (e.g., petroleum- submit a Top-Screen if it meets or chemicals of interest (i.e., to all based materials) that are placed in the exceeds the STQ for any of the chemicals associated with the security storage location (until needed) after applicable security issues. For example, issues of release, theft/diversion, and having been extracted from the ground there are two security issues associated sabotage/contamination). and refined or processed. Such facilities with arsenic trichloride: release-toxic DHS has formulated one other include, but are not limited to, depleted and theft/diversion-CW/CWP. In the exclusion specifically for this reservoirs in oil and/or oil gas fields, Security Issue columns of the appendix, regulation. In § 27.203(a)(7), DHS aquifers, and salt cavern formations. there is a mark in the box for release- exempts chemicals of interest in solid DHS understands that certain products toxic and for theft/diversion-CW/CWP, waste (including hazardous waste) (e.g., propane, natural gas, petroleum) and there is a STQ (and minimum regulated under the Resource may be stored in these underground concentration) listed under the Release Conservation and Recovery Act (RCRA) storage facilities, and DHS wants to column and under the Theft column. If (42 U.S.C. 6901 et seq.) DHS does not ensure that facilities count this material the facility meets or exceeds the STQ believe that it is necessary for facilities toward the amount of their COI. listed in either the Release column or to count COI in RCRA-regulated solid Pursuant to § 27.203(b)(1)(ii), facilities the Theft column (using the appropriate waste toward their STQ, because the must count chemicals of interest in calculation provisions discussed below), Department does not believe that this specified transportation containers the facility must complete and submit a waste is a likely target of a terrorist toward the STQ amount for release Top-Screen. The Department has attack or contains COI that are likely chemicals. In using this terminology, revised the regulatory text in sources of terrorist uses. As stated in the DHS is referring to the same category of § 27.200(b)(2) and § 27.210(a)(1)(i) to regulatory text, though, this exclusion transportation containers that EPA reflect this change. does not apply to waste covered by 40 The Department will periodically CFR 261.33, ‘‘Discarded commercial refers to in its RMP regulation—that is, update the list of chemicals in chemical products, off-specification transportation containers used for Appendix A and will do so subject to species, container residues, and spill storage not incident to transportation, notice and comment. The Department residues thereof.’’ This type of waste including transportation containers may add or remove chemicals, or can include virtually pure chemicals connected to equipment at a facility for categories of chemicals, or may change (including off-specification products loading or unloading and transportation STQs based on new or additional that may merely be inconsistent with a containers detached from the motive information. customer’s specifications) that have power that delivered the container to In revising Appendix A, the been discarded. DHS thinks it is the facility. See 40 CFR 68.3 (containing Department has found it necessary to important for facilities to include this a description of transportation revise the regulatory text, clarifying how waste in the STQ calculation, because containers within the definition of facilities should use the appendix. The this waste is a potential source of COI ‘‘stationary source’’). These Department added § 27.203, which that would be just as attractive to a transportation containers would instructs facilities on how to calculate terrorist as the chemical product itself. include, for example, tank cars attached the STQ for a given chemical and Paragraph (b) of § 27.203 addresses to processing units and tank cars § 27.204, which addresses mixtures. In STQ calculations related to release detached from motive power that had this section of the preamble, DHS chemicals. Section 27.203(b)(1) provides delivered the tank car to the facility. discusses provisions that are general or instructions concerning the substances While the EPA RMP regulation at 40 that apply to multiple security issues. that facilities shall include when CFR 68.3 does not specifically mention DHS discusses provisions related to determining whether they possess transportation containers detached from specific security issues in section II(C). quantities of a release chemical that the motive power, EPA discusses such Section 27.203(a) provides specific meet or exceed the STQ. Proposed provision in its Final Rule titled ‘‘List of exclusions from the calculation Appendix A did not contain the Regulated Substances and Thresholds requirements that apply to chemicals of instructions enumerated in for Accidental Release Prevention; interest in all security issue categories. § 27.203(b)(1), but further consideration Amendments’’ 5 and in its Frequently Facilities need not count chemicals of and a review of the comments caused Asked Questions on the EPA Web site.6 interest covered by these exclusions, DHS to provide these instructions. Part 27 (like EPA’s RMP regulation) because chemicals in such Pursuant to § 27.203(b)(1)(i), facilities does not require facilities to include circumstances or forms are unlikely to must include chemicals in a vessel, chemicals of interest in transportation contribute to the potential consequences which, pursuant to 40 CFR 68.3, ‘‘means when calculating their STQs. DHS of a successful attack. DHS has adopted any reactor, tank, drum, barrel, cylinder, adopts the EPA definition of several of these exclusions from the vat, kettle, boiler, pipe, hose, or other transportation, and accordingly Environmental Protection Agency’s container.’’ Facilities must also include considers a container to be in (EPA) Risk Management Program (RMP) chemicals of interest stored in transportation as long as it is attached regulation. Sections 27.203(a)(1)–(5), (6), magazines, as defined in 27 CFR 555.11. to the motive power (e.g., truck or and (8) track the EPA exemptions in 40 Pursuant to that Bureau of Alcohol, locomotive) that delivered it to the site. CFR 68.115(b)(4)(i)–(iv), 68.115(b)(3), Tobacco, Firearms and Explosives (ATF) If the tank car is detached from the and 68.115(b)(2)(iii), respectively. The definition, a magazine is ‘‘any building motive power, and therefore no longer concepts are the same, though DHS has or structure, other than an explosives in transportation, the facility must adjusted the language to make it manufacturing building used for storage consistent with the language in part 27 of explosive materials.’’ In addition, 5 See 63 FR 640 (January 6, 1998). (e.g., whereas EPA considers TQs facilities must include chemicals of 6 See FAQ II.C.2 on the EPA Web site at http:// present at a ‘‘stationary source,’’ DHS interest in underground storage yosemite.epa.gov/oswer/ceppoweb.nsf/content/caa- considers STQs at a ‘‘facility’’). Note facilities. For purposes of part 27, an faqs.htm.

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consider the contents of the tank car in directed at pipelines are The Department has also added calculating its STQ. complementary. § 27.204, which addresses mixtures. It Pursuant to § 27.203(b)(1)(iii), Second, facilities must also include provides a minimum concentration facilities must also include chemicals of chemicals of interest in fuels when provision for each security issue. The interest that are present as process stored in above-ground tank farms, Department included this provision in intermediates, by-products, and including tank farms that are part of response to commenters, who requested incidental production materials. This pipeline systems. See § 27.203(b)(1)(v). guidance on how to treat mixtures of means, for example, that a refinery must This includes fuels with any one of the chemicals of interest. See § 27.204. A count toward the STQ for hydrogen four National Fire Protection facility must count toward the STQ for sulfide the quantity of hydrogen sulfide Association (NFPA) flammability hazard a given chemical all quantities of that produced as a by-product of any of its ratings and not just fuels with an NFPA chemical that meet or exceed the listed various processes. Or a facility should flammability hazard rating of 4. EPA minimum concentration amount. These count toward the STQ for 37% excludes these fuels by virtue of the minimum concentration provisions are hydrochloric acid the quantity of 37% provisions in its mixtures rule for derived from existing federal regulatory hydrochloric acid produced from the regulated flammable substances. See 40 programs (including EPA’s RMP absorption of hydrogen chloride gas into CFR 68.115(b)(2). These fuels also program and the Department of water and stored temporarily prior to would have been excluded under DHS’s Commerce’s Chemical Weapons subsequent dilution below the threshold flammable mixtures provisions (see Convention (CWC)) Regulations, as well 8 concentration. DHS requires the § 27.204(a)(2) ) except that DHS as from industry technical standards inclusion of these items in calculating specifically included these fuels (see, e.g., Standard for Classification of the STQ, because while they may not be through this provision here in Toxic Gas Mixtures, CGA P–20–2003). present at all times, when present, they § 27.203(b)(1)(v), because of concern The specific minimum concentration could be released and contribute to the that they could create significant human provision for each security issue is consequences of an attack. life or health consequences if an discussed in the sections below. intentional attack by a terrorist were In calculating chemical amounts, The remaining two subsections in successful. facilities should consider the chemicals § 27.203(b)(1) are items that EPA In § 27.203(c), DHS provides that in their possession within the exempted, but which DHS believes are facilities shall only count theft/ framework for each of the three separate important to include in this regulatory diversion chemicals of interest that are and distinct security issues categories program; they have the potential to in a transportation packaging. DHS has (release, theft/diversion, and sabotage/ create a significant offsite impact in the adopted the Department of contamination). A facility must count event of a successful attack. First, when Transportation (DOT) definition of each chemical of interest in its calculating the amount of a chemical of packaging, which refers to ‘‘a receptacle possession, using the relevant interest, facilities must include and any other components or materials calculation provisions for each of the chemicals in natural gas or liquefied necessary for the receptacle to perform categories, and if the facility possesses natural gas (LNG) stored in ‘‘peak its containment function in an amount that meets or exceeds the shaving facilities.’’ See conformance with the minimum STQ for any one of the categories (i.e., § 27.203(b)(1)(iv). Companies typically packing requirements of [DOT’s security issues), the facility must store natural gas or LNG in peak shaving Hazardous Materials Regulations].’’ See complete and submit a Top-Screen. To facilities when demand for product is 49 CFR 171.8. This includes, but is not illustrate that point, the Department low or slows. The natural gas or LNG is limited to, cylinders, bulk bags, bottles highlights sulfur dioxide, which is both stored until it is used later during peak inside or outside of a box, cargo tanks, a release-toxic (STQ: 5,000 pounds) and consumption periods. EPA excludes the and tank cars. DHS has focused the theft/diversion-WME (STQ: 500 chemicals in these peak shaving universe of theft/diversion chemicals of pounds). facilities by virtue of the fact that EPA interest in this fashion, because the —Toward the release STQ of 5,000 considers them storage incident to theft/diversion security issue revolves transportation, and EPA does not pounds, a facility must count all around portable and transportable quantities of sulfur dioxide in vessels subject that type of storage to its RMP amounts of certain chemicals. DHS is regulation.7 Within DHS, TSA is the and underground storage facilities; in concerned about both the theft of transportation containers used for lead agency for the security of pipeline portable amounts of these chemicals transportation and of transportation- storage not incident to transportation, and the diversion of shipments of these including storage containers related facilities; however, such chemicals. facilities (e.g., peak shaving facilities) connected to equipment at a facility for loading or unloading and storage may be required to provide information 8 Section 27.204(a)(2) provides that ‘‘except as containers detached from the motive under part 27. TSA and the Chemical provided in § 27.203(b)(1)(v) for fuels that are stored Security Compliance Division will work in aboveground tank farms (including farms that are power that delivered the container to together to ensure that DHS efforts part of pipeline systems), if a release-flammable the facility; and present as process chemical of interest is present in a mixture in a intermediates, by-products, and concentration equal to or greater than one percent material produced incidental to the 7 Under the RMP rule, EPA considers there to be (1%), and the mixture has a National Fire a threshold quantity of a substance if it is present Protection Association (NFPA) flammability hazard production of a product if they exist at a stationary source. 40 CFR 68.115(a). ‘‘The term rating of 1, 2, or 3, the facility shall count the entire at any given time. stationary source does not apply to transportation, weight of the mixture toward the STQ.’’ Without —Toward the theft/diversion-WME STQ including storage incident to transportation, of any the ‘‘exception’’ clause, DHS would have excluded of 500 pounds, a facility must count regulated substance * * *.’’ 40 CFR 68.3. EPA these fuels by virtue of the fact that these fuels are ‘‘considers the transportation exemption to include mixtures that likely have NFPA flammability all quantities of sulfur dioxide in a storage fields for natural gas where gas taken from hazard ratings of 1, 2, and 3. Pursuant to transportation packaging. pipelines is stored during non-peak periods, to be § 27.204(a)(2), facilities need not count the entire If the facility has 5,000 pounds or returned to the pipelines when needed.’’ 63 FR 640, amount of these mixtures (i.e., mixtures with COI 642 (Jan. 6, 1998). Because EPA considers this type present in a concentration equal to or greater than more of sulfur dioxide aggregated onsite of storage incident to transportation, the type of one percent (1%) and with a flammability hazard in vessel(s), transportation packaging(s), storage is not subject to EPA’s RMP rule. rating of 1, 2, or 3) toward the STQ. etc. or 500 pounds or more of sulfur

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dioxide in transportation packagings (or count toward its release STQ quantities purposes for each framework, however, both), the facility must complete and of sulfur dioxide in a tank car when that this is appropriate. The theft-STQ is submit a Top-Screen. tank car is connected to equipment at focused on preventing someone from Facilities must consider each security the facility for loading and unloading stealing or diverting the shipment of issue framework independently. As a and when that tank car is detached from sulfur dioxide in the tank car and result, there may be chemicals of the motive power that delivered it to the weaponizing it. The release-STQ is interest that a facility counts under facility (see § 27.203(b)(1)(ii)) and it will focused on preventing someone from more than one security issue framework. count toward its theft/diversion-WME intentionally releasing a quantity of That is completely appropriate, as there STQ quantities of sulfur dioxide in tank sulfur dioxide that could affect the is a different focus (and therefore cars (see § 27.203(c)). Under both population within and beyond the distinct counting and mixtures rules) for frameworks (release and theft), the facility. each security issue. For example, with facility may, in fact, count the same respect to sulfur dioxide, a facility will sulfur dioxide. As there are separate

TABLE 1.—SUMMARY OF GENERAL RULES BY SECURITY ISSUE

9 Minimum Security issue STQ COI to exclude COI to include concentration

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 risk and therefore must comply with the screening (i.e., complete and submit a substantive requirements in part 27. Top-Screen). The first method, found in Under Section 550, the Department Accordingly, the presence or amount of § 27.210(a)(1)(i), is linked to Appendix has the authority to use its best a particular chemical is not the sole A. From the effective date of a final judgment and all available information factor in determining whether a facility Appendix A (i.e., this final rule), in determining whether a facility presents a high level of security risk; it facilities that possess any of the presents a high level of security risk. is not the only indicator of a facility’s Appendix A will assist the Department chemicals listed in Appendix A at or coverage under part 27. above the STQ for any applicable in determining which facilities present Sections 27.200(b)(2) and 27.210 a high level of security risk. In security issue will have 60 calendar contain the requirements related to days to complete and submit a Top- Appendix A, the Department has Appendix A, and those requirements are identified chemicals of interest (at Screen to DHS. Facilities that later come fully operative upon publication of this into possession of such chemicals at or specified STQs) that trigger preliminary final rule in the Federal Register. screening requirements. If a facility above the STQ for any applicable Section 27.200(b)(2) requires facilities to security issue will have to complete and possesses a chemical of interest at or complete and submit a Top-Screen if above the STQ for any applicable submit a Top-Screen within 60 calendar they possess any of the chemicals days of coming into possession of such security issue, the facility must identified in Appendix A at or above the complete and submit a Chemical chemicals. See § 27.210(a)(1)(i). In STQ for any applicable security issue. If addition, covered facilities 11 have an Security Assessment Tool (CSAT) Top- a facility possesses even one of the ongoing obligation to complete and Screen. The STQ is not the threshold for chemicals of interest listed in Appendix update the Top-Screen as provided in establishing whether a given facility is A at or above the applicable STQ, the § 27.210(d). Covered facilities that make a high risk facility, but it is a threshold facility has an obligation to complete material modifications to their for determining whether the facility and submit a Top-Screen. Section operations or site must complete and must complete and submit a Top- 27.210(a)(1)(i) provides the initial Screen. submissions schedule for facilities that submit a revised Top-Screen within 60 Only after the Department gathers have to submit a Top-Screen pursuant to days of the material modification. See additional information through the Top- Appendix A. § 27.210(d). Screen process will the Department Pursuant to § 27.210(a), the The second method, found in make a determination 10 as to whether a Department uses two methods to require § 27.210(a)(1)(ii), allows the Department facility presents a high level of security facilities to undergo preliminary to contact facilities independently of

9 Specialized STQs apply to ammonium nitrate, as to a facility’s placement in a risk-based tier. See the Secretary to be potentially dangerous or that chlorine, and propane. § 27.220(b). meets other risk-related criteria identified by the 10 Based on the information the Department 11 As used herein, a ‘‘covered facility’’ (or Department.’’ See § 27.105. Although DHS will receives in accordance with § 27.200 and § 27.205 ‘‘covered chemical facility’’), means ‘‘a chemical require many facilities to complete and submit a (including information submitted through the Top- facility determined by the Assistant Secretary to Top-Screen, DHS will only require covered facilities Screen), the Department makes a preliminary present high levels of security risk. * * *’’ and to develop a chemical facility security program (i.e., determination as to a facility’s placement in a risk- differs from a ‘‘chemical facility’’ (or ‘‘facility’’), based tier. See § 27.220(a). Following review of a which refers to ‘‘any establishment that possesses complete a SVA pursuant to § 27.215, develop and covered facility’s Security Vulnerability Assessment or plans to possess, at any relevant point in time, implement a SSP pursuant to § 27.225, etc.). (SVA), the Department makes a final determination a quantity of a chemical substance determined by

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Appendix A. Facilities must complete chemicals 14 that it had included in the the EPA RMP TQs. The Department and submit a Top-Screen if the proposed appendix. While these three realized that it did not need to reduce Department notifies the facility to do so toxic chemicals appear on EPA’s RMP its STQs to a level below that of the EPA through a Federal Register notice or on list, they do not meet the RMP listing TQs, because even though DHS and EPA an individual basis through written criteria for vapor pressure. EPA are seeking to satisfy two different notification. The Department may included these three chemicals in their mandates (i.e., DHS to prevent an choose to contact facilities in this RMP list, because Congress specifically intentional release and EPA to prevent manner based on new or additional required their inclusion pursuant to an accidental release), DHS has made information or based on intelligence § 7412(r)(3) of the Clean Air Act, 42 accommodations for that difference. The information about terrorists’ interest in U.S.C. 7401 et seq.15 Because these DHS method for calculating an STQ is certain chemicals or certain facilities. chemicals do not otherwise meet the more conservative than that of the EPA The Department will specify the time RMP listing criteria for toxic chemicals, for TQs. Under part 27, except for the frame for these Top-Screen submissions DHS has removed them from Appendix exclusions listed in § 27.203(a), (b)(2), in the written notification. Since the A. and (b)(3), a facility must aggregate the effective date of the IFR, the Department For release-flammable chemicals, total amount of COI that it possesses at has used the second method (i.e., DHS also uses the same listing criteria its facility, including COI that may exist contacting certain facilities individually as EPA does for release-flammable in separate processes. By contrast, under and directing them to complete the Top- chemicals. EPA, and now DHS, EPA’s RMP regulation, a facility must Screen). With the publication of this identifies flammable gases and volatile consider the total quantity of a regulated final rule, both triggering requirements flammable liquids based on the flash substance ‘‘contained in a process’’ that point and boiling point criteria that the for completing the Top-Screen will be in exceeds the TQ. See 40 CFR 68.115(a). NFPA uses for its highest flammability effect. For example, a facility that has multiple hazard ranking (Class IA). The criteria processes (involving an RMP substance), C. Provisions by Security Issue can be found in EPA’s Final List Rule. with each process below the threshold See 59 FR 4478, 4480 (January 31, for the reportable TQ, would not be 1. Release-Toxics and Release- 1994). Flammables covered under RMP. That facility, b. STQ however, would be covered under part a. Chemicals 27 if the total quantity of all the DHS set the STQ for release-toxics at processes (associated with a chemical of the same amount that EPA set the To identify the release chemicals for interest) was at or above the STQ. Threshold Quantity (TQ) for toxic Appendix A, the Department looked to DHS believes that, in the case of an substances under its RMP regulation.16 the list of substances in the EPA’s RMP intentional terrorist attack, chemicals or 12 That amount ranges from 500 to 20,000 rule. See Tables 1 and 2 to 40 CFR materials would likely be released from § 68.130 for release-toxics and Tables 3 pounds, depending on the toxicity and volatility of the substance. Likewise, multiple vessels rather than a single and 4 to 40 CFR 68.130 for release- vessel. As a result, the Department flammables. The Department had DHS set the STQ for release-flammables at the same amount as EPA—10,000 believes that setting the STQ at an included all of the EPA RMP substances amount that reflects the entire inventory in proposed Appendix A,13 and aside pounds. The Department has adopted the EPA RMP TQs, because DHS accepts of the facility better captures the from the exceptions noted below, potential consequences of an intentional continues to do so in this final the same rationale that EPA used when setting its TQs—i.e., that they are attack. The Department believes this is appendix. For release-toxics, the more appropriate than EPA’s valid Department uses the same listing amounts that, if released, have the potential to create significant human assumption for accidents that the worst- criteria, including the EPA acute 17 health effects. The Department realizes case release would be a release from toxicity criteria and vapor pressure cut- the largest vessel. off, which can be found in EPA’s final that, in developing these TQs, EPA collected extensive input on and Despite the general rule for release rule, ‘‘List of Regulated Substances and chemicals (i.e., that the DHS STQs are Threshold for Accidental Release conducted a thorough analysis, and DHS wants to leverage that knowledge the same as the EPA TQs), there are a Prevention; requirements for Petitions few differences between the EPA TQs Under Section 112(r) of the Clean Air base. Whereas the Department had and the DHS STQs. First, as discussed Act as Amended.’’ See 59 FR 4478, 4482 proposed to set the STQs for these below in section II(D)(1), DHS treats (January 31, 1994). EPA includes a toxic release chemicals at seventy-five propane differently than all other substance on its RMP list if the percent of the EPA RMP TQs in the IFR, release-flammables. Second, the RMP substance is an acute toxic that has the Department has instead set these TQ for toxic substances applies to all vapor pressure high enough that the STQs at the same amount as the EPA DHS release-toxics except for eleven 18 release could result in an offsite RMP TQs. In doing so, the Department that meet the RMP listing criteria for poisonous inhalation hazard. accepted the recommendation of many both toxicity and flammability. EPA In this final appendix, the Department commenters to set the STQ for these treats these substances as toxics in its has removed three release-toxic release chemicals at, rather than below, RMP rule; however, DHS lists these substances as flammables (and sets the 12 The Clean Air Act (42 U.S.C. 7401, et seq.) 14 The three release-toxics are: Toluene 2,4- provides that the EPA shall promulgate a list of diisocyanate; Toluene 2,6-diisocyanate; and 17 In 40 CFR 68.3, EPA defines ‘‘worst-case substances that ‘‘in the case of accidental release, Toluene diisocyanate (unspecified isomer). release’’ as ‘‘the release of the largest quantity of a are known to cause or may reasonably be 15 In 42 U.S.C. § 7412(r)(3), Congress directed regulated substance from a vessel or process line anticipated to cause death, injury, or serious EPA to include toluene diisocyanate (TDI) in its failure that results in the greatest distance to an adverse effects to human health or the RMP list. EPA looked to the types of TDI in endpoint defined in § 68.22(a).’’ environment.’’ See 42 U.S.C. 7412(r)(3). commercial production (i.e., those types listed on 18 The eleven RMP release-toxics are: ethylene 13 Note that some of these chemicals present not the Toxic Substances Control Act Chemical oxide, furan, hydrazine, hydrogen selenide, methyl only a release issue, but present additional security Substance Inventory) and listed the three forms chloride, methyl mercaptan, nickel carbonyl, issue(s) too (e.g., theft and diversion or sabotage and noted in footnote 14. peracetic acid, phosphine, propylene oxide, and contamination). 16 See 40 CFR part 68. tetranitromethane.

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STQ at 10,000 pounds), because, in an As noted above, DHS adopted this the facility shall count the entire weight intentional release, they are more likely laboratory quantities exclusion from the of the mixture, or 500 pounds, toward to act like flammables and potentially EPA. DHS, however, has made one the STQ of 10,000 pounds. If a release- create an explosive vapor cloud. minor clarifying adjustment to the flammable chemical of interest is In calculating whether a facility meets language that it adopted from EPA. In present in a mixture in a concentration the STQ for release-toxic or release- response to comments, DHS added equal to or greater than one percent flammable chemicals, the facility need language to § 27.203(b)(2)(i) to make (1%) by weight of the mixture, and the not include release-toxic or release- explicit that activities conducted mixture has a NFPA flammability flammable chemicals of interest that a outside the laboratory may include hazard rating lower than 4 (i.e., NFPA facility manufactures, processes, or uses research and development activities. A hazard rating of 1, 2, or 3), the facility in a laboratory at the facility under the facility must count all quantities of COI need not count the entire weight of the supervision of a technically qualified involved in activities conducted outside mixture toward the STQ. If a release- individual as defined in 40 CFR 720.3. of the laboratory (including research flammable chemical of interest is See § 27.203(b)(2). DHS adopted this and development) toward its STQ. In present in a mixture, and the laboratory quantities exclusion, other words, such COI would not be concentration of the chemical is less including the definition of ‘‘technically subject to the laboratory quantities than one percent (1%) by weight, the qualified individual,’’ from EPA. The exclusion. facility need not count the mixture in comparable EPA laboratory quantities determining whether the facility c. Minimum Concentration (Mixtures) exemption is located in EPA’s RMP possesses the STQ. Note that these regulation at 40 CFR 68.115(b)(5), and Pursuant to § 27.204(a) and as noted mixture provisions track those of the EPA’s definition of ‘‘technically in the ‘‘minimum concentration’’ entries EPA in its RMP regulation. See 40 CFR qualified individual’’ is located at 40 in the appendix, the minimum 68.115(b)(2). CFR 720.3(ee). EPA defines a concentration of a release-toxic or ‘‘technically qualified individual’’ to release-flammable chemical of interest 2. Release-Explosives mean ‘‘a person or persons (1) who, that a facility must include when a. Chemicals because of education, training, or counting the amount of COI is one To identify release chemicals that percent (1%) by weight. Pursuant to experience, or a combination of these present an explosive hazard, DHS § 27.204(a)(1), if a release-toxic chemical factors, is capable of understanding the looked to the DOT hazardous materials is present in a mixture, and the health and environmental risks regulations (see 49 CFR 171–180) and concentration of the chemical is equal to associated with the chemical substance the EPA’s original listing rule for RMP or greater than one percent (1%) by which is used under his or her (see 59 FR 4478 (January 31, 1994)). weight, the facility shall count the supervision, (2) who is responsible for DOT identifies explosives as one of nine amount of the chemical of interest in the enforcing appropriate methods of classes of hazardous materials that it mixture toward the STQ. For example, conducting scientific experimentation, regulates and divides explosives (‘‘Class if a facility has 500 pounds of a toxic analysis, or chemical research to 1 explosives’’) into six divisions. See 49 mixture containing five percent (5%) minimize such risks, and (3) who is CFR 173.50(b). Although DHS had responsible for the safety assessments acrolein, the facility should count five included explosives from the six DOT and clearances related to the percent (5%) of the weight of the explosives divisions in the proposed procurement, storage, use, and disposal mixture, or 25 pounds of acrolein, Appendix A, DHS is only including of the chemical substance as may be toward the STQ of 5,000 pounds. Except Division 1.1 explosives in this final appropriate or required within the scope for oleum, if a facility can measure or appendix.19 After consideration of of conducting a research and estimate (and document) that the partial comments and further review, DHS development activity.’’ Like EPA, the pressure of the regulated substance in decided to focus on Division 1.1 DHS laboratory quantities exclusion the mixture is less than 10 mm Hg, the explosives, which are those that have a does not apply to specialty chemical facility need not consider the mixture mass explosion hazard. A mass production; manufacture, processing, or when determining the STQ. If a release- use of substances in pilot plant scale toxic chemical of interest is present in explosion hazard is one which affects operations; or activities, including a mixture, and the concentration of the almost the entire load instantaneously. DHS has incorporated all of the DOT research and development, involving chemical is less than one percent (1%) Class 1, Division 1.1 explosive chemicals of interest conducted outside by weight of the mixture, the facility chemicals with only two broad the laboratory. Facilities that engage in need not count the amount of that exceptions. First, the Department does such activities must count those chemical in the mixture in determining not include those explosive materials chemicals toward their STQ. whether the facility possesses the STQ. DHS believes that, in a release, a lab Note that these mixture provisions track for which DOT uses a generic shipping 20 quantity of a release chemical would not those of the EPA in its RMP regulation. name with the suffix ‘‘N.O.S.’’ This significantly contribute to the See 40 CFR 68.115(b)(1). refers to materials with generic consequentiality of an attack. Moreover, Pursuant to § 27.204(a)(2), if a release- descriptions in the Hazardous Materials under this provision, DHS believes that, flammable chemical of interest is Table in 49 CFR 172.101 (e.g., where lab quantities of release present in a mixture in a concentration Substances, explosive, n.o.s.). The chemicals are used, there are equal to or greater than one percent Department has instead identified the appropriate controls by virtue of the fact (1%) by weight of the mixture, and the relevant Class 1 explosive materials as it is done so under the supervision of a mixture has a NFPA flammability only those that DOT specifically names technically qualified individual. In hazard rating of 4, the facility shall in its Hazardous Materials Table. adding this laboratory quantity count the entire weight of the mixture Second, DHS does not include articles provision, DHS was responsive to the toward the STQ. For example, if a numerous commenters, including those facility has 500 pounds of a flammable 19 As a result of that decision, DHS removed chemicals such as dinitrosobenzene, sodium from colleges, universities, and mixture containing five percent (5%) dinitro-o-cresolate, sodium picramate, tetrazol-1- industrial laboratories, who requested pentane and the mixture as a whole has acetic acid, and zirconium picramate. such a provision. a NFPA flammability hazard rating of 4, 20 N.O.S. refers to ‘‘not otherwise specified.’’

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or devices that DOT lists in its now sets the STQ for release-explosives CWC regulations are divided into three Hazardous Material Table. Examples of at 5,000 pounds. As discussed above in lists, or ‘‘schedules,’’ based on their those articles and devices include relation to release-toxics and release- previous use as a CW or possible utility charges, guns, detonators, detonator flammables, DHS has decided to set the in developing chemical weapons.25 assemblies, fuses, primers, cartridges, STQ for release chemicals at the EPA Schedule 1 covers chemical weapons and motors. DHS does not believe, at TQs. Five thousands pounds is the TQ agents and their immediate precursors. this time, that it is necessary to include that EPA had used for DOT Division 1.1 They have very limited industrial and this broader universe of substances and explosives when the DOT Division 1.1 medical applications. Schedule 2 covers materials. Coverage of chemical explosives were part of the EPA RMP chemicals and precursors that have facilities that present a high level of risk program. In addition, this is the same some industrial uses. Schedule 3 covers and that include these materials will be quantity that TSA now proposes to use chemicals and precursors with broad triggered by other STQ provisions of for DOT explosives in its Rail commercial applications, some of which this rule. If the Department finds that is Transportation Security NPRM.22 All were formerly weaponized.26 not the case for a particular facility, the release-explosives are also listed as While the Department included Department will seek information from theft/diversion-EXP/IEDP chemicals chemicals from all three Schedules 27 in that facility. (although all theft/diversion-EXP/IEDP proposed Appendix A, the Department DHS believes it is appropriate to chemicals are not listed as release- has only included select chemicals from include DOT Class 1, Division 1.1 explosives, because the theft/diversion- the CWC Schedules in final Appendix explosive materials in Appendix A EXP/IEDP category includes both actual A. The Department continues to include despite the EPA’s exclusion of these explosives and precursors to all specifically identified Schedule 1 materials. At the onset of the RMP explosives). A facility that possesses a chemicals, because they are actual CW program, EPA had listed DOT Division chemical that presents both a release- agents and their immediate precursors. 1.1 explosives as a regulated substance. explosive hazard and a theft/diversion- Note that, based on comments, the EPA set the TQ at 5,000 pounds, EXP/IEDP hazard must consider both of Department has listed these Schedule 1 because the EPA believed that a blast the applicable STQs, and if the facility chemicals by their individual common wave from such an amount had the possesses a quantity that satisfies either name along with their chemical name. STQ, the facility must complete and potential to cause offsite impacts. See 59 With respect to Schedule 2 and 3 submit the Top-Screen. FR 4478 (January 31, 1994). EPA later chemicals, the Department has only In calculating whether a facility meets issued a final rule, delisting Class 1, included those Schedule 2 and 3 the STQ for release-explosive chemicals, chemicals and precursors that are Division 1.1 explosives. See 63 FR 640 the facility need not include release- (January 6, 1998). In the final rule, EPA ‘‘easily weaponizable’’—that is, they explosive chemicals of interest that a could be easily converted into chemical concluded that ‘‘current regulations and facility manufactures, processes, or uses current and contemplated industry weapons using simple chemistry, in a laboratory at the facility under the equipment, and techniques.28 DHS practices promote safety and accident supervision of a technically qualified prevention in storage, handling, made the determination about individual as defined in 40 CFR 720.3. ‘‘weaponizability’’ after consulting with transportation, and use of explosives. As See § 27.203(b)(2). This provision is a result, these regulations and practices several sources, including the Federal identical to the laboratory quantities Bureau of Investigation (FBI) and the adequately protect the public and the provision that applies to release-toxic environment from the hazards of DHS Chemical Security Analysis Center and release-flammable chemicals and (CSAC).29 As a result of this approach, accidents involving explosives.’’ See 63 that is discussed above.23 FR 640, 641. DHS notes that EPA’s the Department removed chemicals that decisions were based on safety and the c. Minimum Concentration (Mixtures) had appeared on the proposed list but prevention of an accidental release. DHS Section 27.204(a)(3) provides that a Chemical Weapons and on Their Destruction is an is concerned with an intentional attack facility shall count toward the STQ the international arms control, disarmament, and non- on an explosives facility, which has the total quantity of all commercial grades proliferation treaty, which is implemented by 22 potential to generate significant impacts of release-explosives. DHS has added a U.S.C. 6701, et. seq. The Department of Commerce for human life and health beyond the administers the implementing regulations. See 15 definition of ‘‘A Commercial Grade’’ CFR part 710. facility. Given the different focus of (ACG) to § 27.105. ACG refers to any 25 Schedule 1 chemicals are provided in DHS’s regulation, it is important that quality or concentration of a chemical of Supplement No. 1 to 15 CFR part 712, Schedule 2 DHS consider DOT Class 1, Division 1.1 interest offered for commercial sale that chemicals are provided in Supplement No. 2 to 15 explosives; there is the potential for a a facility uses, stores, manufactures, or CFR part 713, and Schedule 3 chemicals are serious off-site effect from an intentional ships. provided in Supplement No. 3 to 15 CFR part 714. 26 See ‘‘The Chemical Weapons Convention and successful attack on a facility with 3. Theft/Diversion-CW/CWP Regulations: Frequently Asked Questions and these explosives. Answers on Industry Compliance,’’ U.S. a. Chemicals Department of Commerce, Bureau of Industry and b. STQ Security, Publication CWC–006 (Updated May In identifying chemical weapons (CW) 2006). DHS proposed an STQ of 2,000 and their precursors that are at risk for 27 There were a few Schedule 1 chemicals, pounds 21 for release-explosives but theft or diversion, the Department however, that were inadvertently omitted from the looked to the chemicals covered by the proposed appendix. 21 In the proposed appendix in the IFR, DHS set Chemical Weapons Convention 28 Among the Schedule 2 chemicals, DHS the STQ for these explosive chemicals at 2,000 (CWC).24 The chemicals covered by the included certain easily-weaponizable chemicals pounds. In the IFR, however, DHS was only that are representative of ‘‘families’’ of Schedule 2 considering the theft/diversion concern. In the IFR, chemicals (as opposed to uniquely identifiable had DHS set the STQ for these explosive chemicals and when doing so, EPA set the TQ at 5,000 Schedule 2 chemicals). (using the method of calculating the STQ at 75% pounds. 29 One of the DHS Science and Technology of the EPA RMP TQ) based on a release concern the 22 71 FR 76852 (December 21, 2006). See Centers, the CSAC leverages existing Department of STQ would have been 3,750 pounds. As discussed proposed 49 CFR 1580.100(b)(1). Defense (and other) infrastructure and capabilities in this preamble, while the current EPA RMP does 23 See § II(C)(1)(b) above. to provide analysis and scientific assessment of the not contain release-explosives, EPA had previously 24 The Convention on the Prohibition of the chemical threat against the homeland and the included release-explosives in the RMP program, Development, Production, Stockpiling and Use of American public.

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were now determined not to be easily the entire amount of the mixture toward Inhalation Hazard Zone D; or weaponizable (e.g., chloropicrin). In the STQ. See § 27.204(b)(1). Insecticide gases n.o.s. or Insecticide gases, toxic, flammable, n.o.s. Inhalation addition to including select CWC 4. Theft/Diversion-WME chemicals, Appendix A also contains hazard Zone A). The Department has one other easily weaponizable chemical a. Chemicals only included PIH gases that the (triethanolamine hydrochloride) from To identify chemicals that might be Department of Transportation the Australia Group’s 30 ‘‘Export targeted for theft or diversion as specifically names in the Hazardous Controls List: Chemical Weapons weapons of mass effect (WME), the Materials Table in 49 CFR 172.101. In Precursors.’’ Department looked to the DOT addition, the Department has included hazardous materials regulations and germanium tetrafluoride.35 While that b. STQ and Minimum Concentration considered gases that are poisonous by chemical is not specifically named in (Mixtures) inhalation (PIH). In proposed Appendix the DOT Hazardous Materials Table, it A, DHS listed all DOT Division 2.3 PIH is often named specifically by DHS has eliminated the ‘‘any convention in industry. Given that it amount’’ STQ that it used in the gases including those in Hazard Zones A through D.32 In this finalized can be identified by its specific name proposed appendix for theft/diversion- and following a positive response from CW/CWP chemicals. In this final appendix, the Department has not included Hazard Zone D PIH gases commenters as to the inclusion of this appendix, DHS has set the STQ for each chemical, the Department decided to theft/diversion-CW/CWP chemical (including carbon monoxide and sulfuryl fluoride), because they do not retain this chemical on the list. based on the Schedule from which DHS rise to a level of consequentiality that adopted the chemical. The STQ for b. STQ warrants inclusion as a theft/diversion- Schedule 1 chemicals is cumulative, or DHS has eliminated the ‘‘any WME chemical.33 In addition, the ‘‘CUM 100g,’’ meaning that all amounts amount’’ STQ that it used in the Department no longer includes methyl of Schedule 1 chemicals at a facility proposed appendix for theft/diversion- bromide on the list of chemicals, WME chemicals. DHS developed the count toward the cumulative STQ of because it is being phased out of 100 grams. Section 27.203(c) provides STQs for these chemicals in this final domestic manufacture and use under rule based generally upon that ‘‘where a theft/diversion-Chemical Clean Air Act regulations implementing Weapons (CW) chemical is designated recommendations from the Compressed the United States’ obligations as a Gas Association (CGA) in its comments by ‘‘CUM 100g,’’ a facility shall total the signatory to the Montreal Protocol on quantity of all such designated to the proposed appendix in the IFR. Substances that Deplete the Ozone The STQs for theft/diversion-WME chemicals in its possession to determine Layer.34 Thus, given the limited and whether the facility possesses theft/ chemicals vary based on Hazard Zone, decreasing availability of methyl thereby taking into account their diversion-CW chemicals that meet or bromide, the Department does not exceed the STQ of 100 grams.’’ This is relative toxicity. See 49 CFR 173.116 believe that the potential consequences ‘‘Class 2—Assignment of Hazard Zone.’’ an aggregate amount and not a per agent of an attack warrant inclusion of that limit. DHS added a definition for ‘‘CUM In their comments, CGA indicated that, chemical on the list of chemicals in aside from lecture bottles and sample 100g’’ to § 27.105 ‘‘Definitions’’ and Appendix A. cylinders, the minimum industry included this new provision in In the proposed appendix, with one standard commercial size package for § 27.204(b)(1). ‘‘CUM 100g’’ is the entry exception, DHS did not include DOT Hazard Zone A PIH gases is five (5) for both the STQ and Minimum Division 2.3 PIH gases for which DOT pounds, and the minimum industry Concentration columns for all Schedule uses a generic shipping name with the standard commercial size package for 1 chemicals. DHS decided to use this suffix ‘‘N.O.S.’’ DHS has done the same Hazard Zone B PIH gases is fifteen (15) amount based on the recommendation in this final appendix. N.O.S. refers to pounds. CGA recommended that DHS of CSAC, which indicated that this materials with generic descriptions (e.g., set the STQ for Hazard Zone A at any amount merits proper security for Compressed gas, n.o.s. or Compressed amount greater than five pounds and the purposes of preventing theft and gas, toxic, flammable, corrosive, n.o.s. STQ for Hazard Zone B at any amount diversion to create significant human greater than fifteen pounds. In this final impact and cause widespread panic. 32 DOT defines a ‘‘gas poisonous by inhalation’’ rule, DHS has set the STQ for Hazard in 49 CFR 173.115(c) and assigns hazard zones in The STQs for Schedule 2 and 3 49 CFR 173.116(a). Zone A PIH gases, which are the most chemicals, which are based on their 33 One Hazard Zone D chemical, ethylene oxide, toxic of PIH gases, at fifteen (15) ease of weaponization, are 2.2 pounds is listed in the final Appendix A, because of its pounds, and the STQ for Hazard Zone 31 inclusion on EPA’s RMP list. DHS lists ethylene B PIH gases at forty-five (45) pounds. and 220 pounds, respectively. Unlike oxide as a release-toxic but not as a theft-WME the STQ for Schedule 1 chemicals, these chemical. These two STQs are the equivalent of STQs are not cumulative. For non- 34 Title VI of the Clean Air Act (42 U.S.C. 7671, approximately three standard Schedule 1 theft/diversion-CW/CWP et seq.), which addresses stratospheric ozone commercial size packages for Hazard chemicals of interest that are present in protection, directs EPA to establish a program for Zone A and B PIH gases. These two phasing out production and use of ozone-destroying STQs represent quantities of Hazard a mixture at or above the minimum chemicals, including methyl bromide. These concentration listed in the column in requirements are in furtherance of the United Zone A and/or Hazard Zone B PIH gases Appendix A, the facility should count States’ obligations, as a signatory to the 1987 that are likely to generate significant Montreal Protocol on Substances that Deplete the consequences, including the fact that Ozone Layer, to limit the production and use of portable quantities of these PIH gases 30 The Australia Group is an informal group of such chemicals. In 2000, EPA issued a direct final countries, which aims to allow exporting or rulemaking, which allowed for the phased may be subject to theft and/or diversion. transshipping countries to minimize the risk of reduction in methyl bromide consumption and assisting chemical and biological weapon which extended the phase-out to 2005. See 65 FR 35 The DOT shipping name for germanium proliferation. See http://www.australiagroup.net/ 70795 (November 28, 2000). EPA has further tetrafluoride is ‘‘Liquefied Gas, Toxic, Corrosive, en/control_list/precursors.htm. extended the phase-out program until alternatives n.o.s. (Germanium Tetrafluoride)’’ if liquid is 31 The STQ for the chemical from the Australia for all critical uses of the chemical are available. present and ‘‘Compressed Gas, Toxic, Corrosive, Group, triethanolamine hydrochloride, is 220 See 71 FR 38325 (July 6, 2006). See also http:// n.o.s. (Germanium Tetrafluoride)’’ if no liquid is pounds. www.epa.gov/ozone/mbr/index.html. present.

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The STQ for Hazard Zone C PIH gases included IED precursors that the control access should focus on the chemicals is 500 pounds. That amount is National Research Council identified by the committee as current equivalent to approximately five recommended for additional control in candidates for control in the United States. standard industrial gas cylinders. its report titled ‘‘Containing the Threat These chemicals are ammonium nitrate, Hazard Zone C PIH gases are less toxic from Illegal Bombings: An Integrated sodium nitrate, potassium nitrate, than those in Hazard Zones A and B, National Strategy for Marking, Tagging, nitromethane, concentrated nitric acid, and DHS therefore has concluded that it Rendering Inert, and Licensing concentrated hydrogen peroxide, sodium 38 chlorate, potassium chlorate, and potassium is unlikely for amounts less than 500 Explosives and Their Precursors.’’ perchlorate. Urea and acetone also meet the pounds to generate a high degree of While the universe of theft/diversion- criteria for control but are adequately consequence. EXP/IEDP chemicals has remained controlled if access to nitric acid and These general STQ rules apply to all substantially the same since the IFR, hydrogen peroxide is limited.41 (Emphasis in theft/diversion-WME chemicals except DHS has added a few chemicals the original.) in two instances. First, DHS has (including IED precursors) and deleted established specialized provisions for a few chemicals at the recommendation In its discussion of chemicals that chlorine, which are discussed below in of the FBI.39 The FBI Explosives Unit 40 pose the greatest threat in the United section II(D). Second, DHS set the STQ recommended the inclusion of certain States because of their ability to be used for two Hazard Zone C PIH gases chemicals based on their experience to improvise bombs, the National (hydrogen fluoride and boron investigating IED attacks and evaluating Research Council further discussed trichloride) at the STQ associated with IED components. nitric acid/urea and hydrogen peroxide/ Hazard Zone B PIH gases—i.e., 45 Of note in the realm of deleted acetone: pounds instead of 500 pounds. chemicals (especially to the many Urea can be reacted with nitric acid to Although DOT categorizes these commenters who requested their produce the explosive urea nitrate, the substances as Hazard Zone C, industry removal), the Department no longer material used in the World Trade Center generally treats these gases as Hazard includes acetone and urea in the bombing. Urea is a nondetonable, ubiquitous, Zone B gases because of their toxic appendix. Given the Department’s and inexpensive material with an annual properties. Industry commenters inclusion of concentrated nitric acid production volume in North America of 19 recommended, and DHS agreed, that the and concentrated hydrogen peroxide in million short tons (IFDC, 1997). It is used extensively as a fertilizer, as a noncorrosive toxic properties of these chemicals the appendix, the Department does not ice-melting material at public facilities and in believe it is necessary to include warrant a higher degree of scrutiny and private homes, and as a reagent in many unique STQ in the security context. acetone and urea. The Department is chemical processes. Because urea is a concerned about these chemicals, c. Minimum Concentration (Mixtures) relatively innocuous chemical with a wide because they can be mixed to create range of uses, the committee believes that If a theft/diversion-WME chemical of explosives (e.g., Triacetone Triperoxide preventing access to urea nitrate for illegal interest is present in a mixture at or (TATP) includes both acetone and purposes is more easily achieved by above the minimum concentration hydrogen peroxide). The Department is controlling the other critical component amount listed in the Minimum electing, therefore, to list the more required to make an explosive: nitric acid.42 Concentration column of the appendix, critical chemicals (i.e., concentrated Nitric acid, which is toxic and highly the facility shall count the entire hydrogen peroxide and concentrated corrosive, has many industrial applications amount of the mixture toward the STQ nitric acid) of those mixtures. The effect but is not commonly available to the general unless a specific minimum is to target regulation to facilities public. For that reason, the committee concentration is assigned in the possessing chemicals of interest to believes that sales of nitric acid are much Minimum Concentration column of terrorists in order to thwart terrorism. more traceable than those of urea. Appendix A to part 27, in which case The Department’s decision is Furthermore, controls on nitric acid would provide greater leverage in efforts to prevent the facility should count the total supported by the conclusions of the bomb attacks than would controls on urea, quantity of all commercial grades of the National Research Council report. In because nitric acid can be reacted with a chemicals at the specified minimum pertinent part, the National Research wide range of organic materials (e.g., concentration. See § 27.203(b)(2). DHS Council provides: cellulose, glycerine, and amines) to produce derived the minimum concentrations It is not feasible to control all possible explosives. Although much of the nitric acid from the Compressed Gas Association chemical precursors to explosives. Efforts to produced is used in on-site chemical Standard for Classification of Toxic Gas processes, a large amount is shipped in tank Mixtures, CGAP–20–2003. 38 The National Academy Press published the cars to chemical processing plants or Report, which is available online at www.nap.edu. packaged in drums for sale to commercial 5. Theft/Diversion-EXP/IEDP The National Research Council had appointed ‘‘The businesses such as etchers and metal platers. a. Chemicals Committee on Marking, Rendering Inert, and All of these uses are amenable to good sales Licensing of Explosive Materials’’ to address areas record keeping. The committee believes that To identify chemicals that could be related to explosives. This final report presents the such sales records are probably adequate for Committee’s conclusions and recommendations. subject to theft or diversion for purposes current law enforcement needs.43 39 DHS added aluminum (powder), magnesium of creating an explosion or producing an Hydrogen peroxide can be reacted with 36 (powder), nitrobenzene, potassium permanganate, Improvised Explosive Device (IED), sodium azide, sodium hydrosulfite, and zinc acetone to make the powerful explosive the Department considered several hydrosulfite. TATP, which has been used by terrorists sources. For proposed Appendix A, the 40 As stated on the FBI website, the FBI abroad but not thus far to any great extent in Department included certain DOT Class Explosives Unit ‘‘examines evidence associated the United States. It can be made in large 1 explosives.37 The Department also with bombings. Explosives examinations involve the identification and function of the components used in the construction of incendiary as well as 41 See the Executive Summary of the National 36 An IED is a device fabricated in an improvised improvised explosive devices. In addition, the Unit Research Council Report titled ‘‘Containing the manner that incorporates in its design explosives or performs chemical analyses to determine the type Threat from Illegal Bombings: An Integrated destructive, lethal, noxious, pyrotechnic, or of explosive used in an improvised explosive or National Strategy for Marking, Tagging, Rendering incendiary chemicals. It generally includes a power incendiary device, which includes bulk substance Inert, and Licensing Explosives and Their supply, a switch or timer, and a detonator or analysis as well as analysis of the residues left Precursors,’’ p. 15. initiator. behind when an explosive detonates.’’ See http:// 42 Id. at p. 147. 37 See discussion in section II(C)(2) above. www.fbi.gov/hq/lab/org/eu.htm. 43 Id. at p. 147.

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quantities but is extremely unstable and have the same effect as the other theft/ b. STQ dangerous to handle.44 diversion-EXP/IEDP chemicals at 400 In the proposed appendix, the STQ Acetone, one of the most common organic pounds. solvents, can be purchased readily from for sabotage/contamination chemicals many sources in large quantities. As in the c. Minimum Concentration (Mixtures) was 2,000 pounds. The STQ now listed case of nitric acid and urea, controlling for sabotage/contamination chemicals is access to TATP is achieved more readily by As provided in § 27.204(b)(3), a A Placarded Amount (APA). DHS added limiting the availability of hydrogen peroxide facility shall count toward the STQ the a definition of APA to § 27.105, than by controlling acetone. As with controls total quantity of all commercial grades providing that it refers to the STQ for a on nitric acid, controls on hydrogen peroxide sabotage/contamination chemical of would be preferred because hydrogen of a theft/diversion-EXP/IEDP chemical peroxide can be reacted with chemicals other at the facility unless a specific interest, as calculated in accordance than acetone to produce explosives.45 minimum concentration is assigned in with § 27.203(d). Section 27.203(d) provides that ‘‘[a] facility meets the STQ The Department, after consultation with the Minimum Concentration column of Appendix A to part 27, in which case for a sabotage/contamination chemical the FBI Explosives Unit, finds of interest if it ships the chemical and persuasive the conclusion of the the facility should count the total quantity of all commercial grades of the is required to placard the shipment of National Research Council and removed that chemical pursuant to the provisions acetone and urea from Appendix A. The chemicals at or above the specified minimum concentration. There are of subpart F of 49 CFR part 172.’’ Department also removed nitro urea and Subpart F of 49 CFR part 172 contains urea nitrate, neither of which is specified minimum concentrations for a few of the theft/diversion-EXP/IEDP the DOT placarding requirements commercially available. within the DOT Hazardous Materials With respect to hydrogen peroxide, chemicals, such as hydrogen peroxide regulations. the Department has adjusted the (35%) or ammonium nitrate (nitrogen concentration. In the proposed concentration of 23% nitrogen or c. Minimum Concentration (Mixtures) appendix, the Department listed a greater). DHS has added a definition of As provided in § 27.204(c), a facility concentration of ‘‘at least 30%.’’ In this ‘‘A Commercial Grade’’ (ACG) to shall count toward the STQ the total final appendix, the Department has § 27.105. ACG refers to any quality or quantity of all commercial grades of a increased the concentration for concentration of a chemical of interest sabotage/contamination chemical that it hydrogen peroxide to 35%, a common offered for commercial sale that a possesses unless a specific minimum technical and food grade of hydrogen facility uses, stores, manufactures, or concentration is assigned in the peroxide. The original 30% ships. Minimum Concentration column of concentration was based on IED 6. Sabotage/Contamination Appendix A to part 27, in which case precursor regulations proposed in the facility should count the total Canada. The Department received a. Chemicals quantity of all commercial grades of the comments from various industries about Sabotage/contamination refers to chemicals at the specified minimum the importance of hydrogen peroxide concentration. DHS has added a and the most common commercial those chemicals that, if mixed with other readily-available materials, have definition of ‘‘A Commercial Grade’’ grades of the chemicals. In consultation (ACG) to § 27.105. ACG refers to any with the FBI Explosives Unit, the the potential to create significant adverse consequences for human life or quality or concentration of a chemical of Department has revised the interest offered for commercial sale that health. The Department’s list of concentration it set for hydrogen a facility uses, stores, manufactures, or sabotage/contamination chemicals is peroxide, believing that this change in ships. concentration will not significantly substantially the same in the final increase the likelihood of missing a high appendix as it was in the proposed D. Chemicals With a Specialized risk chemical facility through the part appendix. Approach 27 program. Sabotage/contamination chemicals 1. Propane currently include those chemicals that b. STQ Propane, a release-flammable are capable of releasing a poisonous gas DHS has changed the STQ for theft/ chemical, is one of the many RMP when exposed to water. In identifying flammable chemicals that DHS adopted diversion-EXP/IEDP chemicals from the the chemicals for this category, the proposed amount of 2,000 pounds to from EPA’s RMP list. In the IFR, the Department referred to the table of proposed STQ for propane (an RMP 400 pounds. This new STQ equals the ‘‘Water-Reactive Materials Which amount that is likely required to flammable) was 7,500 pounds, which is Produce Toxic Gases’’ in the 2004 seventy-five percent of the RMP TQ. produce a small, vehicle-borne IED Emergency Response Guidebook (ERG (VBIED). This STQ applies to all theft/ Using the revised general DHS rule for 2004).46 The ERG 2004 is a joint diversion-EXP/IEDP chemicals except release-flammables, the STQ for publication of the U.S. Department of for (1) ammonium nitrate, which the propane would be 10,000 pounds. DHS, Transportation, Transport Canada, and Department discusses below in section however, set the STQ for propane in this the Secretariat of Communications and II(D)(3) and for (2) a few chemicals final rule at 60,000 pounds. Sixty Transportation of Mexico. These where DHS used a different STQ at the thousand pounds is the estimated materials are listed in the ERG 2004 as recommendation of the FBI Explosives maximum amount of propane that non- incompatible with water, because they Unit. Specifically, DHS set the STQ for industrial propane customers, such as produce large amounts of Toxic by aluminum powder, magnesium powder, restaurants and farmers, typically use. Inhalation 47 gases when exposed to and nitrobenzene at 100 pounds instead The Department believes that non- water. of 400 pounds, because DHS believes industrial users, especially those in that the effect of these particular rural areas, do not have the potential to 46 The table is located on pages 344–348 of the create a significant risk to human life or chemicals at these quantities would ERG 2004, which is available on the Web at http://hazmat.dot.gov/pubs/erg/gydebook.htm. health as would industrial users. The 44 Id. at p. 148. 47 Toxic by Inhalation (TIH) is synonymous with Department has elected, at this time, to 45 Id. at p. 148. Poisonous by Inhalation (PIH). focus efforts on large commercial

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propane establishments but may, after a higher STQ for the theft-WME STQ for 1.1 explosive: Ammonium nitrate [with providing the public with an chlorine—500 pounds.51 Five hundred more than 0.2 percent combustible opportunity for notice and comment, pounds is the equivalent of five substances, including any organic extend its part 27 screening efforts to standard 100-pound cylinders. (The substance calculated as carbon, to the smaller facilities in the future. This minimum concentration for chlorine exclusion of any other added higher STQ will focus DHS’s security that presents a theft-WME security issue substance].52 As an explosive, AN screening effort on industrial and major is 9.77%.) Setting the theft/diversion- presents two security issues: Theft/ consumers, regional suppliers, bulk WME STQ for chlorine at 45 pounds diversion-EXP/IEDP and release- retail, and storage sites and away from would have been both burdensome for explosive. DHS is treating the possible non-industrial propane customers. The numerous manufacturers (which are theft/diversion of this form of AN in the minimum concentration and mixtures reliant on chlorine as a starting material) same way that it is treating all other provisions for propane are the same as and difficult for DHS to effectively DOT Division 1.1 explosives.53 Where a for all other release-flammables. implement, manage, and enforce. The facility has larger amounts of AN as an Pursuant to § 27.203(b)(3), facilities U.S. produces 11 million metric tons of explosive, there may also be release need not include propane in tanks of chlorine per year. The vast majority of hazards. As that is the case, DHS has set 10,000 pounds or less when calculating chlorine production is used for the STQ for the possible release of AN whether a facility has a total inventory processing a wide range of paper, as an explosive at 5,000 pounds.54 That of 60,000 pounds. DHS included this plastic, textile, medicine, insecticides, STQ is the same TQ that EPA had set provision, in part, because of its desire paint, and other materials. Chlorine is for DOT Division 1.1 explosives when to exclude farmers and agricultural also used in water and wastewater EPA included such substances in its users of propane who routinely have treatment. While most chlorine is RMP rule. three or more propane tanks 48 for consumed at the facility where it is The second entry for AN in the heating their homes and/or their produced, four million metric tons are appendix addresses the more common chicken/turkey houses. If DHS listed shipped annually in small containers, form of AN in solid form with a nitrogen propane at 10,000 pounds (the STQ for one-ton containers, and cargo tank concentration of 23% or greater. This all other release-flammable chemicals), motor vehicles, and tank cars across the form of AN is largely used in the many more entities, including country. agricultural community and in amounts homeowners, farmers, and small Given the enormous production, that typically exceed 400 pounds (the businesses, would have to complete and transportation, and importance of STQ for all other theft/diversion-EXP/ submit the Top-Screen. DHS does not chlorine, DHS increased the theft/ IEDP chemicals). Given the expect that such dispersed inventories, diversion-WME STQ for chlorine from circumstances surrounding its use (i.e., often located away from population 45 pounds to 500 pounds. DHS believes extensive use in the agricultural centers, are likely to meet its definition that quantities less than 500 pounds industry), DHS has set the STQ for this of high risk chemical facilities. DHS would capture facilities that are form of AN at 2,000 pounds. (This form believes that the revised approach unlikely to present significant of AN in a mixture will count toward toward propane is better geared toward consequences. This amount is the STQ in a minimum concentration of identifying and addressing the risks considered a portable and transportable 33% or more.) This STQ is geared associated with major propane amount that could be diverted or stolen. toward ensuring that DHS secures AN inventories. Overall, DHS’s approach toward inventories at major manufacturing and distribution facilities, as opposed to 2. Chlorine chlorine recognizes that chlorine is distinct from other WME precursors in individual farmers involved mainly in In the proposed appendix, DHS set terms of its broad utility and the application of AN. DHS believes that the STQ for chlorine at 1,875 pounds. availability. terrorists are interested in maximizing There are two security issues associated death and injuries from an attack and with chlorine, each with its own STQ. 3. Ammonium Nitrate (AN) are, therefore, less interested in Using the DHS baseline rules, the STQ In proposed Appendix A, the attacking facilities in rural areas or other for chorine as a release-toxic would be Department identified only one form of areas with low population densities. 49 2,500 pounds, and the STQ for ammonium nitrate (nitrogen DHS referenced many sources in chlorine as a theft/diversion-WME concentration of 28%–34%) and set the developing this approach. In addition to 50 chemical would be 45 pounds. STQ at 2,000 pounds. Based on the considering DOT and EPA regulations, Consistent with all other release-toxic consideration of comments, the DHS consulted with Departmental chemicals, DHS set the release-toxic Department has revised its approach in experts, such as the DHS Office for STQ for chlorine at 2,500 pounds and this final appendix, identifying AN in Bombing Prevention, which administers requires facilities to use the calculation two forms: (1) The DOT Division 1.1 the Bomb Making Awareness Program, and mixtures provisions that apply to explosive found in 49 CFR 172.101 and and other federal experts, such as the all other release-toxic chemicals. See (2) the more common form frequently FBI Explosives Unit. The Department’s §§ 27.204(a)(1) and 27.203(b)(1)(i)–(ii). used as a fertilizer. DHS assigned a STQ DHS, however, developed a unique to each form. Given the breadth of AN’s 52 The entry for this form of AN can be found in the DOT Hazardous Materials Regulations at 49 CFR approach for chlorine where it presents use and history, DHS has crafted a a theft/diversion-WME security issue. § 172.101. specialized approach to address this 53 Instead of 45 pounds, DHS established Where AN as an explosive presents a theft- chemical’s specific security concerns. EXP/IEDP security issue, the STQ is 400 pounds, The first entry for AN in the appendix and a facility is expected to include all amounts of 48 Typical tank sizes include approximately 2,205 ACG of AN when determining whether it meets or pounds and 4,418 pounds. addresses AN as an explosive. The exceeds the STQ. And, per § 27.203(c), in 49 DHS used the RMP TQ for release-toxic Department has listed the DOT Division calculating this theft STQ, facilities need only count chemicals, and the RMP TQ for chlorine is 2,500 amounts in transportation packagings. pounds. 51 As with all theft/diversion chemicals, facilities 54 Consistent with the mixtures provision for all 50 Chlorine is a DOT Division 2.3 PIH gas in must only count toward the theft-WME STQ for release-explosives (see § 27.204(a)(3)), facilities are Hazard Zone B, and the baseline STQ for Hazard chlorine those quantities of chlorine in expected to include all amounts of ACG of AN in Zone B PIH gases is generally 45 pounds. transportation packagings. See § 27.203(c). calculating the STQ.

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approach was further supported by As another example, DHS clarified the is reduced, and so DHS should not international resources, including the inclusion of various explosive regulate these chemicals on their own. British Health and Safety Executive’s chemicals. The Department added RDX/ And, the flashpoint of triethanolamine, publication titled ‘‘Storing and cyclotrimethylenetrinitramine (CAS at 212 degrees Fahrenheit, is so high Handling Ammonium Nitrate’’ and #121–82–4), which had been that it would have to be extremely hot Canada’s proposed regulations on inadvertently omitted in the proposed for the chemical to heat up, ignite, and Restricted Components issued pursuant appendix. The Department is including become an explosive hazard. to Canada’s Explosives Act.55 this DOT Division 1.1 explosive, Response: The Department has because the Department is including all included the chemicals of interest in E. Technical Corrections such DOT Division 1.1 explosives, given Appendix A due to their potential, DHS made several technical the risk of their theft or diversion for when used as part of an attack, to create corrections to the chemicals listed in terrorism purposes. The Department significant human life or health Appendix A, and those corrections, now lists HMX under its common name consequences. Each of these chemicals many of which are highlighted below, (i.e., HMX); in the proposed appendix, presents at least one of the security improve the accuracy of the list. Many the Department had listed HMX under issues described in section II above. Not commenters assisted DHS in identifying its chemical name only has the Department carefully these items. DHS removed the entries (cyclotetramethylenetetranitramine). weighed the value of including any for certain chemicals (because they were Note, however, that the Department has given chemical, but the Department has synonyms for already-listed chemicals) included HMX’s chemical name in the clearly defined the parameters for each and instead listed them as synonyms in synonym column for the HMX entry. chemical. In this final rule, the 56 Department has replaced the ‘‘any the new ‘‘Synonyms’’ column. DHS III. Discussion of Comments also corrected the Chemical Abstract amount’’ STQs (that it proposed in the Service (CAS) number for several In the Interim Final Rule, DHS sought IFR) with numerical quantities. The chemicals 57 and the spelling and/or comment on the proposed list of DHS Department has also provided name of other chemicals.58 Chemicals of Interest in Appendix A to instruction on how a facility should part 27. DHS received approximately In addition, DHS made chemical- calculate an STQ and how a facility 4,300 public comments, and almost specific edits. For example, DHS should consider chemicals of interest in 4,000 of those comments were related to separated the entry for ‘‘hydrogen a mixture. See §§ 27.203 and 27.204. the issues surrounding propane. In addition, the Department reiterates fluoride/hydrofluoric acid (conc. 50% Commenters to the proposed appendix that possession of a chemical of interest or greater)’’ into two entries. DHS had included trade associations, citizens, listed in Appendix A does not equate to included them as one listing in the companies, universities, hospitals and coverage under the standards in part 27. proposed listing, because they were research facilities, and members of Possession of a chemical of interest at included as such on EPA’s RMP list. As Congress. In the sections below, DHS the listed STQ is merely a trigger for a they are two different chemicals (one is provides a topical summary of the facility to complete and submit a Top- a gas and the other is a fuming liquid), comments and responses to those Screen. Furthermore, when a facility albeit with the same CAS number, DHS comments. 59 completes a Top-Screen, that has separated them into two entries. information becomes but one factor in A. Specific Chemicals or Types of the Department’s determination of 55 The Explosives Regulatory Division (ERD) of Chemicals Natural Resources Canada has posted the proposed whether a facility presents a high level regulation on their Web site at http:// 1. In General of security risk. www.nrcan.gc.ca/mms/explosif/pdf/ Comment: Commenters suggested that In response to the comments about RestrictedComp_e.pdf. DHS should remove chemicals that are specific chemicals, the Department 56 This includes, for example, calcium dithionite replies as follows: DHS removed carbon (already listed as calcium hydrosulfite), sodium widely used in the U.S., (e.g., acetone, dithionite (already listed as sodium hydrosulfite); chlorine, propane, sodium nitrate, urea), monoxide from the list as part of its zinc dithionite (already listed as zinc hydrosulfite); asserting that such chemicals should not larger decision to remove DOT Division and dimethyl phosphoramido-dichloridate (already 2.3 PIH gases in Hazard Zone D. Carbon listed as N, N-dimethyl phosphoramidic be regulated as a chemical security risk. Some argued that commonly available monoxide is a Hazard Zone D PIH gas. dichloride). DHS continues to list hydrogen sulfide 57 This includes, for example, chromium chemicals are unlikely targets of theft oxychloride; DF, dinitroresorcinol; dipicrylamine from a facility. Other commenters on the list, because it meets the [or] hexyl (formerly listed as provided specific arguments why DHS Department’s criteria for both release- hexanitrodiphenylamine, which is now listed as a should not regulate commonplace toxic and theft/diversion-WME synonym); hexyltrichlorosilane; magnesium chemicals. EPA lists hydrogen sulfide as aluminum phosphide (now listed separately as chemicals: Carbon monoxide is a magnesium phosphide and aluminum phosphide); common byproduct that can occur a release-toxic on its RMP list. Aside octonal; octolite; sodium phosphide; strontium frequently in everyday locations (e.g., from the exceptions noted above, DHS phosphide; torpex (formerly listed as hexotonal); has included as release-toxics in and trinitronaphthalene. from a car, heater, or furnace). Hydrogen sulfide is a natural byproduct that is Appendix A all of the toxics on EPA’s 58 This includes, for example, 1-pentene; boron RMP list. Also, DOT identifies hydrogen trifluoride (and its synonym borane, trifluoro); easily generated, whether in labs during boron trifluoride compound with methyl ether (1:1); reactions or from geothermal facilities. sulfide as a Division 2.3 PIH gas, Hazard pentaerythritol tetranitrate; propyl chloroformate; Yet other commenters thought that Zone B. Aside from the exceptions sulfur tetrafluoride (and its synonym sulfur there was only limited harm from other noted above, DHS has included all of fluoride); and vinyl acetylene. the DOT Division 2.3 PIH gases as theft/ 59 For hydrofluoric acid (conc. 50% or greater), chemicals, and so DHS should not which presents a release-toxic security issue, DHS regulate those chemicals. For example, diversion-WME chemicals in Appendix assigns a STQ of 1000 pounds and minimum potassium nitrate and sodium nitrate do A. DHS, however, excludes naturally concentration of 50% or greater. For hydrogen not ignite on their own, therefore the occurring sources (such as geothermal fluoride (anhydrous), when it presents a release- operations) of hydrogen sulfide toxic security issue, DHS assigns a STQ of 1,000 explosive hazard from those chemicals pounds and a minimum concentration of 1.00%. pursuant to § 27.203(a)(9). DHS For hydrogen fluoride (anhydrous), when it STQ of 15 pounds and a minimum concentration continues to list potassium nitrate and presents a theft-WME security issue, DHS assigns a of 42.53%. sodium nitrate, although they are

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common oxidizers, they could be used Another individual, however, supported business, including forklift operators, to create IEDs. Finally, DHS continues DHS inclusion of facilities that use camp grounds, parks, bakeries, and to list triethanolamine, because it can be anhydrous ammonia either for construction companies. easily converted into a chemical refrigeration during food processing and Agricultural businesses indicated that weapon, not because of the flashpoint or storage or as part of emission controls they use propane for multiple purposes, other physical characteristics of the for coal-fired electrical generation, including heating their chicken and/or chemical itself. because such facilities are typically near turkey houses, drying produce, or Comment: Commenters remarked on population centers and transportation keeping livestock and farm produce how some Appendix A chemicals of systems. Several other commenters warm. They indicated that many farms interest, such as acetone, propane, and urged DHS to increase the 7,500 pound have multiple tanks of propane and that urea, are preferable to possible STQ for anhydrous ammonia, so that it the regulation will impact many small, substitutes not on Appendix A, due to would match the TQ for other regulatory family-owned farms, which will have to their comparatively lower toxicity or programs. complete the Top-Screen. Others environmental impact. In particular, Response: As a toxic chemical pointed out that these propane tanks on they noted that the inclusion of certain utilized across industries, DHS believes farms are often separated by a chemicals means that facilities, in an that anhydrous ammonia can present a significant distance or a building. attempt to avoid going through the high risk and, under certain Propane distributors and retailers screening process, will transition away circumstances, generate major indicated that their main customer base from Appendix A chemicals and consequences for human life or health. is residential, commercial/industrial, possibly toward more dangerous Therefore, DHS continues to include motor fuel, agricultural, and wholesale. substitutes. For example, in lieu of anhydrous ammonia in the list of In the residential market, propane is acetone, facilities might transition to the chemicals. DHS, however, raised the used primarily for home heating, water use of more toxic solvents. STQ for anhydrous ammonia to 10,000 heating, and cooking purposes. Many Response: With respect to the specific pounds. That tracks the amount that commenters stated that a significant chemicals mentioned, DHS notes that, EPA uses in its RMP regulation. See 40 percentage of their customer base, for the reasons discussed above, DHS CFR 68.130, Table 1. DHS expects that including residential users, would have has removed acetone and urea from the facilities will count toward their STQ to complete and submit a Top-Screen list of chemicals, and it has the quantity of anhydrous ammonia under the proposed threshold. They substantially revised the STQ for stored as part of a refrigeration system speculated that this might force propane propane. As for concerns that facilities in addition to the quantity of anhydrous users to shift to other more will transition to more dangerous ammonia in the actual system environmentally hazardous fuel sources. substitute chemicals, DHS makes the Comment: Manufacturing plants Retailers and distributors also claimed following points. Appendix A is DHS’s pointed out that most plants need a that customers had already begun to first attempt to identify chemicals of minimum inventory of nitric acid to request the completion and submission interest around which there are serious operate efficiently. Commenters assert of the Top-Screen on their behalf. security concerns, and the aim of that 2,000 pounds, the amount proposed Commenters asserted that the worst Appendix A is to provide a screening in Appendix A, is too low to operate case scenario of an explosion from a tool for the DHS chemical security efficiently, and therefore, large numbers 1,000 gallon tank of propane is only regulatory program. If there is a need to of manufacturing plants would have to approximately 500 feet for a 1 psi over- address different or additional go through the Top-Screen process. pressure condition. While that type of chemicals in the future, DHS has the Other commenters remarked that nitric incident is enough to break windows option of revising Appendix A, subject acid is included in the inventory of and cause injuries due to glass shrapnel, to notice and comment when laboratories at colleges and universities. they did not think it would be likely to appropriate, to include any different or Response: The Department continues cause structural damage and, hence, additional chemicals. The Department to include nitric acid in Appendix A should not be considered as a national also has the ability to reach out directly given the security risks it presents. In security threat. to facilities it believes may present a large quantities, nitric acid presents a Many commenters felt that that DHS high level of security risk, even for release hazard, and so DHS has set the had gone beyond the limitations chemicals not included in Appendix A. STQ at 15,000 pounds. In addition, DHS contained in Section 550 of the See 27 CFR 27.210(a)(1)(ii). is aware that nitric acid, in smaller Department of Homeland Security While facilities covered by part 27 quantities, is useful in creating IEDs. Appropriations Act of 2007, which they have flexibility in deciding how to meet DHS has set the STQ for divertible asserted provides that nothing in the the part 27 requirements (for example, quantities of nitric acid (i.e., amounts in rules can supersede other federal laws a facility can choose to reduce, transportation packagings) at 400 pertaining to the manufacture, substitute, or eliminate its inventory of pounds. distribution in commerce, use, or sale of an Appendix A chemical of interest at chemicals. See Section 550(f). any time), DHS will, through its review 2. Propane Commenters offered suggestions for of Site Security Plans and visits to In proposed Appendix A, the revisions. Many commenters suggested facilities, determine whether facilities Department included propane on the that DHS should incorporate the have adequately selected, developed, list of Chemicals of Interest (COI) with statutory exemptions from EPA’s Risk and implemented risk-based measures a STQ of 7,500 pounds. Management Program rules, including designed to satisfy the risk-based Comment: DHS received almost 4,000 the statutory exemptions from the performance standards. See 27 CFR comments related to propane, and many Chemical Safety Information, Site 27.225 and 27.245. of these comments disagreed with the Security, and Fuels Regulatory Relief Comment: One association proposed inclusion of propane and the Act (Pub. L. 106–40). Commenters also recommended that DHS exclude from proposed STQ for propane. There were proposed that DHS add a footnote to the the list anhydrous ammonia used for comments from propane distributors Appendix A entry for propane, food refrigeration and contained in and retailers; agricultural businesses; indicating that regulated entities need closed-loop refrigeration systems. private citizens; and numerous small not count all propane storage tanks of

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less than 1,200 gallons toward the wastewater treatment facilities possess approach recognizes that AN is integral threshold amount. chlorine, however those locations are to the agriculture and explosives Response: The Department continues not chemical facilities in a traditional industries, yet also seeks to satisfy the to include propane in the list of sense and therefore they are lower risk DHS mandate to enhance the security of chemicals in Appendix A. The locations. facilities that present a high level of Department has not adopted the By contrast, one individual risk. statutory exemption from the Chemical commenter recommended a lower STQ Safety Information, Site Security, and for chlorine. The commenter suggested 5. Acetone and Urea Fuels Regulatory Relief Act (Pub. L. that DHS should lower the STQ for In proposed Appendix A, the 106–40). That Act amended the Clean chlorine to 150 pounds, which is the Department included acetone and urea Air Act to remove flammable fuels from size of a commonly available on the list, each with an STQ of 2,000 the list of substances with respect to commercial cylinder. The commenter pounds. which reporting and other activities are was concerned that the theft of small Comment: The Department also required under the risk management containers of chlorine would enable a received a large number of comments on plan program, and for other purposes. terrorist to use chlorine gas in attacks on acetone and urea. Commenters from a EPA codified that provision at 40 CFR public gatherings. wide array of industries remarked on 68.126. Congress did not include such a Response: While the Department the important uses and widespread provision exempting propane in the recognizes the importance of chlorine to availability of these two chemicals. authorizing legislation for part 27, and the Nation’s critical infrastructure and Commenters noted that, while other so DHS has not exempted propane from key resources, and especially the regulatory regimes cover acetone and part 27. The Department disagrees with chemical sector, the Department also urea, they typically do so for amounts the statement that the Department has realizes that the theft/diversion of lower than the proposed STQ of 2,000 gone beyond the limitations contained chlorine to develop a WME is a serious pounds. in Section 550. The listing of propane in security concern. Recent terrorist Response: The Department’s initial Appendix A merely triggers the incidents involving chlorine cylinders concerns around acetone and urea requirement that a facility (possessing in Iraq have reinforced this concern. To centered on its potential theft and the listed amount) complete and submit balance these concerns, the Department diversion for use as an explosives a Top-Screen to DHS. That, in no way, has developed a revised approach precursor. After considering the supersedes any other federal law toward chlorine, which is discussed in comments received and consulting with regulating manufacture, sale, or use of section II(D)(2) above. With this expert sources, including the FBI propane. approach, the Department hopes to Explosives Unit and the report The Department, however, has facilitate the introduction and produced by the National Research changed several provisions related to implementation of security standards Council, the Department does not propane, as discussed in section II(D)(1). that prevent the theft or diversion of believe that acetone and urea need to be The Department believes its approach to chlorine for terrorist purposes without tracked as closely the Department tracks securing significant stocks of propane is unduly interfering with the continued, other explosives precursors, especially informed, manageable, and legitimate production, transportation, concentrated hydrogen peroxide and proportionate to its existing use and risk and use of chlorine. In response to the nitric acid. The Department has profile. In response to the comment comment about public water systems removed acetone and urea from the list about propane storage tanks, the and water treatment systems, the of Chemicals of Interest in Appendix A. Department notes that, per Department notes that it has excluded 6. Chemical Weapons (CW) and § 27.203(b)(3), DHS will not require those systems consistent with the Chemical Weapons Precursors (CWP) facilities to include quantities of statutory exclusion in Section 550 (see propane in tanks of 10,000 pounds or § 27.110(b)). Comment: While commenters less. supported the Department’s reference to 4. Ammonium Nitrate (AN) the Schedules of chemicals from the 3. Chlorine In proposed Appendix A, the CWC, commenters generally noted that In proposed Appendix A, the Department included ammonium nitrate applying an STQ of ‘‘any amount’’ for Department included chlorine on the (nitrogen concentration of 28%–34%) all CWC chemicals was unnecessarily list with an STQ of 1,875 pounds. on the list of COI with a STQ of 2,000 low. With the exception of Schedule 1 Comment: Many commenters pounds. chemicals, which are weapons and provided input on DHS’s inclusion of Comment: There were several therefore merit a relatively low STQ, chlorine on the COI list. The majority of comments about AN with most commenters thought that the ‘‘any commenters encouraged DHS to use the commenters supporting the inclusion of amount’’ STQ would create EPA RMP TQs for all RMP release-toxic AN on the COI list. Several commenters unreasonable compliance challenges for chemicals, including chlorine. They remarked on the reduced availability of facilities. Commenters urged DHS to use argued that the RMP TQ of 2,500 AN fertilizer due to liability concerns the CWC Schedule 2 TQs for Schedule pounds is a well-reasoned number and over its use in terrorism. Commenters 2 CW/CWP chemicals. Commenters also that the chemical industry is familiar expressed differing opinions on the remarked on the widespread with that number. As an additional percentage of nitrogen in AN that DHS commercial use of triethanolamine (a argument against an STQ of 1,875 should consider for purposes of Schedule 3 chemical) in and across the pounds, commenters argued that large preventing AN’s use as an explosive chemical, personal care, and consumer amounts of chlorine are readily precursor. Commenters requested products industries. available through production or clarification of the STQ and whether it Response: The Department has purchase given its diversified uses in applied to solid, liquid, and/or mixtures replaced all ‘‘any amount’’ STQs for and across the water treatment, of AN. theft/diversion-CW/CWP chemicals electronics, steel, pharmaceutical, and Response: DHS revised its approach with numerical quantities. The plastics industries. Similarly, other toward ammonium nitrate, as discussed Department did not use the CWC TQs commenters asserted that water and above in section II(D)(3). This revised for Schedule 2 chemicals because those

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amounts are too high. Those higher Containing the Threat from Illegal triggering the Top-Screen requirements amounts are designed to prevent the Bombings: An Integrated National in no way precludes any facility from development of state-level chemical Strategy for Marking, Tagging, meeting OSHA or EPA standards. weapons programs, not to prevent acts Rendering Inert, and Licensing B. Coverage of Appendix A of chemical terrorism. DHS identified Explosives and Their Precursors. The the STQ for Schedule 2 chemicals (at FBI’s Explosives Unit has validated 1. Colleges and Universities 2.2 pounds) by identifying how much such conclusions for DHS. Comment: Colleges, universities, and one would need of the chemical to 8. Hydrogen Peroxide university medical centers; associations convert it easily into a weapon using that represent these institutions; and Comment: Given the availability of simple chemistry. DHS included individuals associated with such acetone, one commenter requested that triethanolamine and several other institutions requested that DHS exempt Schedule 3 chemicals in the final DHS remove acetone from the list and retain hydrogen peroxide at 30%, if these institutions or modify the rule to appendix due to the ease with which address the use of chemicals of interest they may be weaponized. DHS was concerned about these chemicals being misused to make at these institutions. Many colleges and 7. Explosives Triacetone Triperoxide (TATP). universities endorsed the comments of Comment: The American Commenters from the food, feed, steel, the Campus Safety Health and Pyrotechnics Association requested that cleaning, and other industries remarked Environmental Management Association DHS remove four oxidizers (ammonium on the varied uses for commercial (CSHEMA), which asserted that perchlorate greater than 15 microns in strength hydrogen peroxide as well as chemicals of interest do not pose a size, potassium chlorate, potassium hydrogen peroxide formulations. The significant risk when they are widely nitrate, and potassium perchlorate) from majority of commenters recommended dispersed in many locations, and in the list of chemicals in Appendix A. that DHS adopt OSHA’s and EPA’s extremely small quantities per location, The American Pyrotechnics Association standard approach to listing hydrogen as is typical with colleges and explained that, while these chemicals peroxide at a 52% concentration under universities. CSHEMA contended that are used in pyrotechnic mixtures, they their Process Safety Management (PSM) DHS must not have intended to include would neither create a highly toxic regulations and Risk Management colleges and universities given DHS’s cloud nor could they be used in an Program (RMP), respectively. estimate of the number of affected explosive, flammable, or reactive Response: DHS listed hydrogen facilities. CSHEMA also asserted that manner until they were properly peroxide in the proposed Appendix A Appendix A imposes a heavy burden on blended with an energetic fuel. In order and continues to list it as a theft/ colleges and universities and that the to create an oxidizer and fuel bomb, one diversion-EXP/IEDP chemical in final task of submitting a Top-Screen will be must go through extensive and difficult Appendix A because of its proven onerous for colleges and universities; in steps to obtain the materials and then potential as an IEDP. In the final particular CSHEMA asserts that the time must have the proper training to mix the appendix, the Department listed and cost burden of complying with the chemicals in the proper ratio. In other ‘‘hydrogen peroxide (concentration of at Top-Screen requirement will be words, terrorists would have to least 35%)’’ on the list of chemicals and exponentially higher than that which complete extensive measures to secure also set the minimum concentration for DHS estimated. CSHEMA made several chemicals that would do very little hydrogen peroxide at 35%. For a recommendations; namely, that DHS damage. Commenters noted that neither discussion of the Department’s replace all ‘‘any amount’’ STQs with a DOT nor ATF classify the four oxidizers approach to hydrogen peroxide, see numeric quantity (CSHEMA suggested a as explosives, and so therefore DHS section II(C)(5) above. minimum STQ of 100 pounds). should not either. Commenters have requested that DHS CSHEMA also recommended that DHS Response: DHS has considered the use a 52% concentration for hydrogen exclude chemicals in containers of one American Pyrotechnics Association’s peroxide, which they assert would be pound or less and that DHS create a per- comments and, based on consultations consistent with certain OSHA and EPA laboratory STQ. with expert sources (including the FBI standards. While DHS understands Other commenters provided similar Explosives Unit) the Department has industry’s preference for consistent comments. They explained that determined that it is still desirable to rules across federal agencies, DHS notes Appendix A includes numerous include these four oxidizers on the list that DHS’s mandate is distinct from chemicals of interest that are found or of chemicals in Appendix A. DHS is other federal agencies that already synthesized at colleges and universities including ammonium perchlorate on the regulate hydrogen peroxide. Both OSHA in amounts that exceed the ‘‘any list, because it is a DOT Class 1, and EPA are concerned with accidental amount’’ STQs. As a result, nearly all Division 1.1 explosive that presents two release and/or the detonation of colleges, universities, and university security issues (see section II(C) above): hydrogen peroxide and so regulating hospitals would be required to complete theft/diversion-EXP/IEDP and release- concentrations of 52% or greater is and submit a Top-Screen. Because COI explosive. It is at risk of theft and reasonable given their mandates. DHS is in extremely small quantities (typically misuse for making explosives, and it charged with ensuring effective security milligram or gram quantities per could present a release hazard from a at high risk chemical facilities. The container) are widely dispersed in many successful attack on a facility with a security issue around hydrogen locations throughout universities, the large (5,000 pounds or greater) peroxide, a common IED precursor, commenters believe that these facilities inventory. demanded that DHS identify the pose no significant security risk. DHS is including the three potassium concentration at which hydrogen Commenters were also concerned that, compounds (potassium chlorate, peroxide is potentially useful to while no one location on campus might potassium nitrate, and potassium terrorists as an IED precursor. DHS, in exceed a threshold, the campus or perchlorate), because they are IED consultation with the FBI, has university as a whole (particularly since precursors that warrant enhanced determined that concentration to be at there might be multiple campuses), security. The National Research Council or above 35%. In any event, setting the might exceed an STQ. Commenters listed these chemicals in its report titled Appendix A concentration at 35% for suggested that DHS provide an

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exemption, as does OSHA and EPA medical centers from their chemical- their institution that is responsible for regulations, for laboratories that use related regulatory programs. compliance.60 The requirements of part small quantities of hazardous materials. Furthermore, given the apparent 27 are facility-specific. As such, an Many college and universities current state of security at academic institution of higher learning can, if described the security procedures that institutions, DHS believes that appropriate, submit a Top-Screen on a they currently have in place and stated exclusion of colleges and universities is building-to-building basis or a campus- that such procedures are adequate to not warranted. Based on the comments wide basis. This is comparable to the protect against the security risks that DHS received from colleges and situation for owners or operators of a they face. They asserted that it would universities, the Department multi-unit enterprise. See 72 FR 17688, impose significant burdens to exceed understands that security varies 17697. these measures. For example, while they dramatically across academic Fifth, even if academic institutions get currently do some chemical tracking, institutions. Representatives of the screened into this regulatory program they believe that identifying and academic community acknowledged (i.e., they complete the Top-Screen, tracking very small amounts of that they possess chemicals of interest. DHS classifies them as a high-risk chemicals for Appendix A purposes While some adhere to broad security facility, and they have to develop and would impose a substantial new burden. strategies, others admitted having an implement SVAs and SSPs), the Furthermore, they did not think that the incomplete or non-existent inventory of academic institutions may well have risk posed by these quantities justifies the contents and quantities of chemicals security measures in place that will help the substantial burden that tracking and no affordable or timely means of them meet the applicable risk-based would impose. Others maintained that, compiling an inventory. performance standards. See § 27.230 while locations can be secured, other While the requirements of Appendix (indicating that a facility must select, security measures contained in the Site A will continue to apply to academic develop in their SSP, and implement Security Plans would be antithetical to institutions, there are several revisions appropriately risk-based measures institutions of higher learning. to Appendix A, many of which should designed to satisfy the risk-based As an alternative to seeking an allay the concerns of academic performance standards listed in exemption from the regulation for institutions. First, DHS is providing § 27.230(a)(1)–(19)). In that case, the colleges and universities, commenters colleges and universities with the additional burden of complying with made a variety of other suggestions. A option to request an extension of time this regulation would consist of either few commenters urged DHS to adopt to complete and submit their Top- creating a CSAT SSP or referencing different STQs or to exclude chemicals Screens following the publication of a measures in an existing security plan by of interest that are used in laboratories final Appendix A. The president, dean, way of an Alternate Security Program at colleges and universities. They provost, or other senior official at a (ASP). See § 27.235 ‘‘Alternative recommended that DHS replace ‘‘any college or university may request an Security Program.’’ Colleges and amount’’ with numeric threshold extension from the Assistant Secretary universities may benefit from working quantities and that DHS base those for Infrastructure Protection, and DHS together to develop an ASP template quantities on amounts used by other may grant that request for up to 60 specifically tailored to the research federal agencies. Other commenters additional calendar days following the environment in an academic setting. proposed a per container limit for COI, publication of final Appendix A. similar to what the EPA uses for its Spill Second, as discussed throughout this 2. Medical Research Organizations and Prevention Control and Countermeasure final rule, the Department has removed Similar Laboratories regulations. See 40 CFR part 112. As various chemicals from the list. Of note Comment: The assertions in the noted above, CHSEMA proposed a one to academic institutions, the comments from medical research pound limit per container. Commenters Department has removed acetone. institutes and other similar laboratories also recommended DHS only regulate Similarly, the Department has adjusted largely resembled those of the colleges pure chemicals, explaining that a STQs for chemicals. The Department chemical that is part of a commercial has assigned numeric quantities to all of 60 Part 27 defines a ‘‘chemical facility or facility’’ product, formulation, or dilute solution the previous ‘‘any amount’’ STQs. Of as ‘‘any facility that possesses or plans to possess, at any relevant point in time, a quantity of a should not be a COI. note to academic institutions, DHS has chemical substance determined by the Secretary to Response: Facilities that possess any changed the STQ for triethanolamine (a be potentially dangerous or that meets other risk- of the chemicals listed in Appendix A theft/diversion-CW/CWP chemical) related criterion identified by the Department. As at or above the STQ for any applicable used herein, the term chemical facility or facility from ‘‘any amount’’ to 220 pounds. shall also refer to the owner or operator of the security issue must complete and Third, the Department has added an chemical facility. Where multiple owners and/or submit a Top-Screen. See § 27.200(b)(2) exclusion for facilities that possess operators function within a common infrastructure and § 27.210(a)(1)(i). Accordingly, the laboratory quantities of release-toxic, or within a single fenced area, the Assistant Department expects that all facilities, Secretary may determine that such owners and/or release-flammable, and release- operators constitute a single chemical facility or including colleges and universities, that explosive chemicals. See § 27.203(b)(2). multiple chemical facilities depending on the possess such chemicals will complete This tracks the exemption that EPA uses circumstances.’’ See § 27.100. and submit a Top-Screen. Because the in its RMP program. Note, however, that As noted in the preamble to the IFR, DHS need to do a Top-Screen is driven by the while a facility need not count believes that it will generally be straightforward for facilities to define their boundaries and identify the possession of chemicals, not the laboratory quantities of release party (at their facility) responsible for compliance location of the chemicals, DHS can not chemicals of interest toward the with the regulation. DHS acknowledges that, in simply exempt chemicals located at facility’s STQ, a facility must still count some circumstances, the issue might be more colleges and universities. In addition, complex. The Department will address those laboratory quantities of theft/diversion situations on a case-by-case basis. See 72 FR 17697. the Department notes that existing and sabotage/contamination chemicals In addition, as indicated in the definition of federal regulatory schemes (e.g., those of of interest toward the facility’s STQ. ‘‘chemical facility,’’ the Assistant Secretary has the the Centers for Disease Control and Fourth, all facilities, including authority, where necessary, to make a Prevention (CDC), Drug Enforcement colleges and universities, have determination about the operations at given facility or facilities. The Assistant Secretary may make the Agency (DEA), and CWC) do not exempt flexibility in defining the boundaries of determination that a facility is a single chemical colleges, universities, and university their facility and identifying the party at facility or multiple chemical facilities.

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and universities. These comments came medical research institutes and like control standards for these substances. not only from medical research institutions that possess any of the Moreover, these chemicals are usually institutes but from non-production, non- chemicals listed in Appendix A at or kept in small amounts in small diagnostic research laboratories; above the STQ for any applicable containers under secure conditions by ancillary facilities at non-profit, non- security issue will complete and submit people who are licensed. commercial research organizations; a Top-Screen. See § 27.200(b)(2) and Response: Pursuant to the authorizing operators of pharmaceutical § 27.210(a)(1)(i). DHS also directs legislation for part 27, the Department laboratories; and companies that readers to the discussion of revisions to has exempted select facilities from this conduct research as a part of their Appendix A, which is provided in the regulation. See Section 550(a) and business (e.g., industrial or food response to colleges and universities. § 27.110(b). Commenters to both the processing research and development Those revisions should address many of Advance Notice and to Appendix A laboratories, environmental testing labs, the concerns of medical research requested that DHS exempt additional and testing or monitoring facilities). institutes and like institutions. facilities and industries, such as They argued that their institutions are universities, medical research institutes, not ‘‘high risk chemical facilities.’’ They 3. Farms and the Agricultural Industry; and farms. Consistent with its position also claimed that they use COI in the Fumigation Industry in the IFR, DHS has not provided any same way that colleges and universities Comment: Several commenters, additional regulatory text exemptions. do—that is, they have large numbers of including farmers and other agricultural See 67 FR 17688, 17699. chemicals and reagents in very small users of chemicals, asserted that they There are risks with facilities quantities, in small containers, and at should be exempt from this rule, possessing certain amounts of certain multiple locations within a facility. In explaining that they extensively use chemicals, and the Department is addition, they asserted that they did not chemicals like acrolein, ammonium seeking to address these risks under its comment on the Advance Notice of nitrate (nitrogen concentration of 28%– new authority in Section 550. This Rulemaking, because they did not 34%), and sodium chlorate. Because extends to all facilities that present high believe that rule would cover them. farmers use these chemicals on farms for levels of security risk and possess Pharmaceutical research facilities agricultural purposes, and often do so in chemicals that may be of interest to asserted these security efforts would be remote and rural locations, commenters terrorists. Moreover, these risks are very burdensome and would divert a did not think that these chemicals associated with the characteristics and large amount of time and resources raised any security concerns. Other quantity of the chemical, rather than the away from their critical, life-saving commenters expressed concern that if business or activity associated with the research. DHS made exceptions for certain industry or facility. As such, it would Several of those commenters facilities (especially in the agricultural not be appropriate for DHS to exempt, expressed concern about the ‘‘any industry), loopholes would emerge and by regulation, entire types of activities amount’’ threshold. Those commenters companies would exploit those or industries. included individuals and entities that loopholes in order to gain a financial Nevertheless, the Department realizes conduct field calibration for pipelines edge. the commercial importance of Appendix and operations, operate compliance Several commenters asserted that A chemicals of interest and does not labs, sterilize instruments, and conduct DHS should exempt urea fertilizer, seek to undermine their legitimate blood or tissue test. A few commenters because it is widely-used. Another production, use, and/or sale. To that pointed out that the ‘‘any amount’’ commenter requested that DHS work end, the Department has made threshold would mean that entities like with agricultural producer groups in numerous changes to the appendix and clinics and dental offices would have to order to find appropriate ways to discusses them in section II of this submit Top-Screens. regulate commonly-used nitrogen preamble. In short, DHS has clearly Commenters requested that DHS fertilizers such as ammonia solutions, identified the security issue(s) exempt their laboratories or operations anhydrous ammonia, and urea. associated with each chemical, removed from the rule. In the alternative, the Commenters believed that the potential the ‘‘any amount’’ STQs,61 removed commenters requested other forms of hazard or risk posed by these chemicals, chemicals (including acetone and urea), relief, such as replacing the ‘‘any particularly in a rural farm setting, is and developed a specialized approach amount’’ STQ for common laboratory minimal and should not trigger the for certain chemicals (including chemicals with a STQ of 10 pounds per regulation of farms as ‘‘chemical propane and AN). In addition, as storage location or 100 pounds per facilities.’’ Yet other commenters agreed discussed in the relevant sections above, building; establishing a per container that DHS should exempt urea but for a DHS notes that it removed methyl limit of 1 pound; setting higher levels different reason; they asserted that bromide and chloropicrin from the list for ubiquitous substances (such as chemicals that are already highly of chemicals in Appendix A. acetone and triethanolamine); or regulated may not need the additional defining a facility to include a storage requirements of this rule, but the fact 4. Overlap With Other Federal Entities location. that a chemical like urea is not highly Comment: Many commenters Response: DHS directs readers to the regulated supports the argument that the expressed concern that the new rule response provided for colleges and chemical by itself is not harmful. creates regulatory redundancy. They universities, as that response is directly Commenters from the fumigation indicated that numerous federal applicable to these comments by industry pointed out that DHS security agencies, including ATF, DOT, DOJ, medical research institutes and other regulation of chemicals (such as methyl EPA, OSHA, TSA, and USCG, already similar laboratories. The requirement to bromide, chloropicrin, and sulfuryl have regulations on the identified complete the Top-Screen is driven by fluoride) is unnecessary, since these chemicals and that some of these the possession of certain chemicals in substances are commonly used in the agencies heavily regulate companies specified quantities, and DHS does not fumigation industry and already that deal with chemicals. Commenters agree that the nature of a facility’s regulated under other federal regulatory explained that companies that store and operation alone warrants an exclusion. schemes. In addition, commenters As such, the Department expects that pointed out that there are licensing and 61 See footnote 64.

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transport these materials must conduct EPA’s Emergency Planning and inter-agency coordination process to a comprehensive risk and vulnerability Notification regulations at 40 CFR part resolve jurisdictional questions or assessment based on storage prior to 355 should have an STQ no lower than conflicts, as this regulatory program transport, personnel security, its threshold planning quantity. develops. unauthorized access, and en route With respect to explosives, Despite the differing mandates security. Commenters indicated that commenters pointed out that the between federal agencies that regulate they would like to see consistency and explosives industry is already heavily chemicals, the Department has looked to cooperation between agencies. regulated by DOT, the Department of the regulatory programs of these other Commenters argued that DHS should Justice (DOJ), and ATF and is subject to federal agencies for guidance and remove chemicals that are already risk assessments. Commenters believe direction. The Department found great regulated by other federal agencies and the DHS efforts would be redundant and value in considering a number of these pointed to several examples. excessive for a low-threat industry. By regulatory programs, including those of Commenters asserted that the EPA, contrast, another commenter suggested the ATF, DOC, Department of Energy through the Federal Insecticide, that DHS expand the list of COI to (DOE), DOT, EPA, and OSHA. In fact, Fungicide, and Rodenticide Act incorporate those substances regulated the Department references, uses, and (FIFRA), 7 U.S.C. 136 et seq., and DOT by the ATF. The commenter stated that cites many of these regulations in this regulates chemicals such as methyl explosives present security risks beyond rule. bromide, chloropicrin, and sulfuryl manufacturing (such as transportation, With respect to offshore oil and gas fluoride. Other commenters asserted end storage, and potential theft) that facilities, as discussed in the IFR at 72 that the EPA, through the Emergency need to be taken into account. FR 17699, the Department notes that the Planning and Community Right to Response: The Department recognizes statute (Section 550) and the regulation Know Act, 42 U.S.C.11011 et seq., and that multiple federal entities regulate (§ 27.110(b)) exempt facilities regulated the Occupational Safety and Health matters related to chemicals. In the pursuant to MTSA. Advance Notice to part 27, the Administration regulate hydrogen 5. Concerns About Being Over-Inclusive peroxide (concentration of at least 30%). Department discussed pre-existing And yet other commenters pointed out chemical security and safety programs, Section 27.105 defines a chemical that DOT regulates propane; DOT, along such as those of the USCG, EPA, OSHA, facility as an establishment that with EPA, regulates phosphine; and the and ATF. The Department notes, ‘‘possesses or plans to possess, at any DOC regulates triethanolamine under its however, that each entity regulates relevant point in time, a quantity of a Chemical Weapons Convention (CWC) chemicals for distinct reasons. Congress chemical substance determined by the regulations. has given each entity a different Secretary to be potentially dangerous or Other commenters recommended that mandate, and so each entity must satisfy that meets other risk-related criteria DHS exempt facilities that are regulated its mandate. For example, OSHA is identified by the Department.’’ by other federal agencies. Specifically, concerned with, inter alia, the Comment: Numerous commenters commenters requested exemptions for protection of employees that use certain stated that this definition of a ‘‘chemical facilities that have already complied chemicals in the workplace. DOT is facility,’’ along with the chemicals and with EPA’s Risk Management Program; concerned with the safe and secure STQs listed in proposed Appendix A, natural gas pipelines and utility transportation of hazardous materials. will capture far more facilities than facilities that DOT’s Pipeline and EPA, through its RMP program, is Congress originally intended. Hazardous Materials Administration concerned with preventing an Commenters were concerned that these (PHMSA) regulates; and facilities that accidental release of certain chemicals. facilities, which they did not consider have been screened out of the Maritime DHS, however, is concerned with the high risk facilities, would need to Transportation Security Act (MTSA) security implications of facilities complete and submit a Top-Screen (e.g., offshore oil and gas facilities). possessing these chemicals. Congress because of the proposed COI and STQs. Commenters asserted that the EPA RMP has given DHS explicit authority to For example, 105 of the 331 chemicals regulations, PHMSA pipeline and U.S. regulate security at chemical facilities. on the proposed list have a STQ with no Coast Guard MTSA regulations assess To the extent there is overlap in the ‘‘de minimis’’ quantity (i.e., an STQ of facilities with similar criteria (i.e., jurisdiction and efforts of multiple ‘‘any amount.’’). Among those listed are potential risk to the public, the federal entities, DHS will work with many common chemicals (e.g., carbon environment, and economic health) and those entities to coordinate efforts. monoxide) that can be found in many therefore thought that DHS efforts Within DHS, the Department has low risk facilities. As a result of the would be redundant and a waste of already undertaken steps among proposed list of COI and STQs, the rule resources. Many small businesses headquarters and component offices would end up covering many entities commented that it would be difficult for (e.g., USCG, DHS Office of Infrastructure that would not expect to be covered, them to keep up with part 27 and other Protection/Chemical Security such as rural schools, summer camps, federal regulations, especially since TQs Compliance Division (CSCD), and TSA) universities, research facilities, farms, and STQs vary between agencies. to coordinate the application and agricultural retailers, grocery stores, Several commenters suggested that enforcement of regulatory programs fumigators, and residential homes. DHS should set its STQs consistent with related to chemical security. There are Commenters asserted that if DHS did those of other federal agencies or liaison positions within CSCD for not alter its definition of chemical regulatory programs (e.g., OSHA, EPA, individuals from other DHS offices and facility, the chemicals in the COI list, DOC). Commenters most frequently components. In addition, DHS has and the STQs on the COI list, DHS recommended that DHS use EPA RMP developed informal and formal working would receive a drastically larger TQs and either substitute them groups to coordinate Departmental number of Top-Screens (than the 40,000 categorically for all STQs or at least for regulatory authorities in the chemical Top-Screens, which DHS estimated in the proposed ‘‘any amount’’ STQs. One sector. With respect to federal entities regulatory evaluation for the IFR). commenter recommended that a outside of DHS, the Department will Commenters argued that the number of chemical of interest that is also an consider the necessity of various Top-Screens would be as high as extremely hazardous substance under formalized arrangements, such as an hundreds of thousands, perhaps even

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millions. Commenters believe this will chemical security program. As with requirements of part 27 are facility- bog down the review process, use too railroad facilities, DHS may, in the specific. many resources on low risk facilities, future re-evaluate the coverage of Comment: A commenter suggested and become counter-productive in the trucking terminals. DHS would do so by that, because of varying uses or toxicity, attempt to secure the homeland. issuing a rulemaking considering the DHS list STQs in smaller units of Commenters were also concerned that matter. measures (i.e., grams) in addition to if entities which did not expect to be Finally, in response to commenters pounds. included (e.g., farmers, small business who indicate that there may be a lack Response: Where appropriate, the owners, or home owners) are, in fact, of awareness about these requirements, Department has listed STQs in units included in Appendix A and expected the Department notes that publication of other than pounds. For example, the to complete the Top-Screen, those a document in the Federal Register is Department lists the cumulative STQ for entities will not know of the official notice of a document’s existence specified theft/diversion-CW/CWP requirement and not comply, thereby and its contents to those parties that chemicals at 100 grams. incurring possible penalties and other may be subject to it or affected by it. In consequences (e.g., filing fees, costs this case, the IFR and this final rule puts 2. Modifying the ‘‘Any Amount’’ STQ associated with hiring DHS compliance all affected parties on notice that they Comment: Several commenters consultants). must comply with the terms of part 27. expressed an opinion on the ‘‘any Response: In part 27, the Department Despite this fact, the Department has amount’’ STQ in the proposed classifies chemical facilities as high risk undertaken outreach efforts since the appendix. Many commenters urged DHS based on the presence of chemicals that publication of this IFR and will to replace the ‘‘any amount’’ STQs with may be an attractive target for terrorists. continue to do so. numeric levels. One commenter DHS has identified security issue(s) for encouraged DHS to set the thresholds at C. Screening Threshold Quantities each chemical, and that security issue is amounts that reflect what experts associated with the characteristics and 1. In General believe is sufficient to produce an off- quantity of the chemical. If a facility site consequence to the public as a possesses that chemical at the specified Comment: There were many comments about the STQs assigned to result of attack, theft, or conversion into amount, the Department expects that the a weapon of mass destruction. facility will complete a Top-Screen. the chemicals in the list. The majority of commenters recommended that DHS Yet other commenters asked DHS to While the Department has not clarify the meaning of ‘‘any amount.’’ narrowed its definition of ‘‘chemical increase the STQs, arguing that the 62 proposed STQs were too low. For example, one individual asked how facility,’’ the Department has refined a facility would know when it came into the list of chemicals, as well as the Commenters asserted that DHS should significantly increase the STQs to possession of ‘‘any amount.’’ Other parameters for including chemicals. See commenters pointed out that certain section II of the preamble. Among the relieve the burden on very low risk facilities. Other commenters argued that COI are ingredients in many changes, DHS established many new nonhazardous products, such as foods STQs, eliminated the ‘‘any amount’’ low STQs for common, widely-used chemicals will impose a huge burden on and cosmetics, and therefore thought STQ, and has included new calculation that DHS would not have intended for provisions. The Department expects that industry overall as well as a burden on small entities that make small amounts those products to be subject to the rule. these changes will effectively exclude For example, an 8-ounce glass of whole most farmers, home owners, and small of several, different chemicals. By contrast, only one individual milk contains approximately 230 businesses from the Top-Screen process. milligrams of phosphorus, and yet DHS The Department believes that its commenter recommended a downward STQ adjustment (for chlorine). listed phosphorus as a COI with an STQ estimate regarding entities that will of ‘‘any amount.’’ complete the Top-Screen continues to Response: The Department has Other commenters noted that if DHS be accurate. revised its approach to Appendix A, retained the ‘‘any amount’’ STQ, every In addition, the Department is including substantial changes to the home, grocery store, and school with providing some clarification on the STQs. The changes are discussed in only a detectable amount would have to coverage of truck terminals. The depth above in section II(C). comply with the regulation. These Department is taking the same approach Comment: Some individuals noted commenters did not think that such a toward truck terminals that it has taken that a particular site or facility might tiny amount of chemicals would make toward railroad facilities. See 72 FR have several locations where there is a a viable terrorist target. Other 17698–17699. DHS presently does not small quantity of a COI, but in the commenters suggested that the ‘‘any plan to screen truck terminals for aggregate the site could have more than amount’’ STQ would create a larger inclusion in the Section 550 regulatory an STQ. The commenters asked whether burden for both DHS and facilities that program, and therefore DHS will not the threshold amount should be applied would otherwise not be affected by this request that owners and operators of to the entire site, even if the different rule. This, in turn, would divert limited truck terminals complete the Top- locations within the site are widely resources away from those facilities that Screen risk assessment methodology. separated from one another. Another can actually be considered terrorist DHS and its components, including commenter thought that DHS should targets. A food industry commenter TSA, have concurrent and overlapping clarify its definition of STQ to include believed that overly expansive coverage jurisdiction with respect to certain ‘‘all sources of a given chemical from a would cause facilities in the industry to aspects of chemical security. DHS is given facility, not just single sources focus on chemical security compliance working, and will continue to work, to with quantities that exceed STQs.’’ rather than potential threats to the food address this overlapping jurisdiction Response: As DHS discussed in the supply. and to determine whether it would want comment response about colleges and Response: The Department has to include trucking terminals in its universities, facilities have flexibility to define their boundaries and identify the removed the ‘‘any amount STQs’’ from 62 For a discussion on the definition of ‘‘chemical party (or parties) at their institution that the list, and for the vast majority of facility,’’ see footnote 61. is responsible for compliance. The chemicals, DHS assigned a numeric

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quantity to the STQ for each chemical.63 pentachloride, (3) phosphorus suggested that DHS assign large STQ The revised STQs are geared toward the trichloride, and (4) thionyl chloride. values to these N.O.S. chemicals. hazard and consequences associated In addition, the Department listed Response: For the reasons discussed with the chemical. each of the following three chemicals above in sections II(C)(2) and II(C)(4), the Department is not using the DOT 3. Mixtures and Solutions twice by listing the chemical under two synonymous names: (1) Calcium approach of categorizing chemicals,64 Comment: Several individuals, dithionite and calcium hydrosulfite, (2) and so DHS has not included N.O.S. entities, and organizations believed that sodium dithionite and sodium chemicals on the COI list.65 Instead, the proposed appendix was unclear hydrosulfite, and (3) zinc dithionite and DHS has included chemicals on the COI about the applicability of STQs to zinc hydrosulfite. The Department not list if they are uniquely identifiable. The mixtures and solutions. Commenters only listed each of the following two Department, of course, retains its argued that the concentration of a COI chemicals twice by listing the chemical discretion to expand the COI list to is the most important factor affecting under two synonymous names, but also include these or other chemicals in the potential harm. Commenters asserted listed a different STQ under each name: future, as necessary. that when a COI is listed in Appendix (1) Hydrogen cyanide (any amount) and Comment: A commenter requested A without a percent concentration, then hydrocyanic acid (1,875 pounds), and that DHS list the chemicals in CAS the STQ should apply to the weight of (2) carbonyl sulfide (any amount) and numerical sequence in addition to the pure substance, not to the weight of carbon oxysulfide (7,500 pounds). listing them in alphabetical order. a mixture or solution. Alternatively, Commenters noted that Appendix A Response: At this time, the commenters suggested that DHS should listed incorrect CAS numbers for the Department will not list chemicals in establish minimum concentrations for following six chemicals: CAS numerical sequence. The all COI. Some commenters noted that hexyltrichlorosilane, sodium Department has, however, re-formatted the properties of a mixture might be phosphide, hexotonal, chromium the final Appendix, making it more significantly different from the oxychloride, diethyl phosphate, and user-friendly. properties of the listed COI that caused dimethyl phosphate. the mixture to be considered a health or E. Other Comments Response: The Department security risk. One commenter suggested 1. Procedural Issues that DHS should exclude mixtures from appreciates the input from commenters the list, since most chemical mixtures on chemical names and CAS numbers. Comment: Many commenters were do not share the same risk profile as The Department used that information upset that DHS did not publish their pure compound counterpart (e.g., to ensure the accuracy of Appendix A. Appendix A in the Advance Notice. A acetone, cyanides, fertilizers, and gas To that end, the Department has large number of commenters wanted the mixtures). removed and revised duplicate entries, comment period for Appendix A Response: The Department recognizes corrected CAS numbers, and added a extended for an additional 30 to 60 the importance of providing guidance column to the appendix containing days. Many commenters thought that 30 on mixtures, and as discussed in section commonly-used synonyms for certain days was not a sufficient amount of time II, the Department added a new chemicals of interest. to fully digest and analyze the regulatory section that addresses 2. Formatting and Approach regulations. mixtures. See § 27.204. The Department Response: Congress provided the generally disagrees with commenters Comment: A few commenters Department with six months to who assert that chemical mixtures are recommended that DHS parallel the promulgate interim final regulations on not a security concern. For example, DOT hazard class approach in chemical security. See Section 550(a). toxic chemical mixtures are a security classifying and listing chemicals. The The Department not only met that short concern given their ability to vaporize Institute of Makers of Explosives (IME) deadline, but it published both an from the mixture and potentially create made this suggestion in the context of Advance Notice and IFR within that six- a toxic cloud. Similarly, certain explosives. To illustrate their point, the month period. While the Department minimum concentrations of poisonous IME provided examples of chemicals in did not include Appendix A in the gases, particularly the highly toxic the same hazard class as several COI Advance Notice, it nonetheless has gasses, are potential weapons even in included in the Department’s chemical- provided the public with an opportunity extremely low concentrations. by-chemical approach. to comment on the appendix. Response: As noted in the IFR, DHS’s In the IFR, the Department provided D. Revisions to the COI List primary approach in this appendix is the public with 30 days to comment on 1. Technical Corrections through the association of individual proposed Appendix A. The Department chemicals with specific security issues. was unable to extend that time period, Comment: A handful of commenters While DHS will not preclude the use of given that the Department is seeking to noted that DHS had duplicate entries for hazard classes for other purposes (e.g., facilitate the expeditious chemicals in proposed Appendix A. The in the risk-based performance standard implementation of this chemical Department listed each of the four guidelines), DHS is not using the DOT security regulatory program. Until the following chemicals twice, with a hazard class approach at this point in Department finalizes Appendix A, the different STQ (‘‘any amount’’ and 2000 time. pounds) for each entry: (1) Phosphorus Comment: One commenter suggested 64 Through its Hazardous Material Table in 49 oxychloride, (2) phosphorus that DHS add the following generic ‘‘Not CFR 172.101, DOT regulates the transportation of hazardous materials. For each material listed, DOT 63 for sabotage/contamination chemicals, a facility Otherwise Specified’’ (N.O.S.) identifies a hazard class, provides the proper meets the STQ if it possesses A Placarded chemicals to the COI list: Poison Gas, shipping name, and specifies the applicable Amount—i.e., if it ships the listed chemical of N.O.S.; Flammable Gas, N.O.S.; requirements (e.g., labeling, packaging, etc). To interest and is required to placard the shipment of Flammable Liquid, N.O.S.; Spontaneous denote hazardous materials without a specific that chemical pursuant to DOT regulations at 49 shipping name, DOT uses the suffix ‘‘N.O.S.’’ and CFR part 172. DOT regulations identify the amounts Combustible Liquid, N.O.S.; Organic a generic shipping name. (such as ‘‘any quantity’’ or ‘‘1,001 lbs or more) for Peroxide, N.O.S.; Poison Inhalation 65 The only exception is germanium tetrafluoride, which placarding is required.’’ See 49 CFR 172.504. Hazard, N.O.S. The commenter which DHS discusses in section (II)(C)(4)(a) above.

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Department cannot fully implement this in each of the following three scenarios: Response: Whether a landlord or program. (1) If an American company buys a COI tenant is responsible for submitting a Comment: A few commenters asked from one country and ships it directly Top-Screen will depend on which party that DHS incorporate procedures for to another country without ever is responsible for security of the changing the chemicals and STQs in possessing it; (2) If an American chemical. The party responsible for the Appendix A. Commenters want to be company buys a COI from a foreign security of the chemical is responsible able to request that DHS delist (or nation and temporarily stores it for for submitting the Top-Screen. This may remove) a chemical from Appendix A. resale to another USA or Canadian vary depending on the operational and/ Other commenters asked that DHS company; and, (3) If an American or contractual relationship between the provide a 90 day comment period when company buys a COI above the parties. adding chemicals. threshold limit from an overseas Comment: A few commenters Response: DHS plans to periodically producer and sells it to another USA suggested that, in determining whether update the list of chemicals in company without ever handling it in a facility possesses the chemicals in Appendix A and will do so through their facility. Appendix A at the quantities that trigger notice and comment. At this time, DHS Response: Part 27 applies to facilities a Top-Screen, DHS should not include is not including a petition process like located in the U.S. All facilities located quantities of a chemical of interest that that of EPA, where members of the in the U.S., including both domestic and a facility is using or processing on-site. public may petition the EPA to add or foreign companies, that possess In some cases, a process might create a delete substances from the RMP list. See chemicals at the applicable STQ must chemical of interest but not result in the 40 CFR 27.120. complete and submit a Top-Screen. The storage of that chemical of interest. For Comment: Commenters asked that the converse is that a facility which does example, carbon monoxide produced media be more involved in conveying not operate in the U.S. and never during combustion is transitory, and information about the final rule, because possesses chemicals in the U.S., even if sulfur dioxide and sulfur trioxide are they believe that there are many smaller it is a U.S. company, does not have to created and consumed during flue gas businesses that are potentially affected complete and submit a Top-Screen. conditioning. Response: A facility shall calculate and yet are not aware of these new An American company that purchases standards. Commenters are concerned the STQ for release-toxic chemicals, chemicals of interest from one foreign such as sulfur trioxide, based on a that individuals and businesses could country and ships it to another foreign face severe financial penalties or unfair facility’s total inventory of the chemical. country, without ever possessing the The Department has added clarity to prosecution if they lack a full chemical in the U.S. does not need to understanding of the rule and fail to this issue, by adding calculation complete and submit a Top-Screen. Any provisions for each security issue. comply. company, whether domestic or foreign, Response: The Department recognizes Section § 27.203(b)(1)(iii), in particular, that stores chemicals of interest in the provides that facilities shall include in the need for ongoing and expanded U.S. in quantities that at any time meet outreach on this regulatory program, their release STQ chemicals of interest or exceed the STQ must complete and that are present as process and the Department has already submit a Top-Screen. The Department initiated such outreach. For example, intermediates, by-products, or materials realizes there are numerous, produced incidental to the production the Department began participating in complicated business arrangements. conferences soon after the effective date of a product. The Department notes that Where a facility is unsure about its it no longer includes carbon monoxide of part 27 (e.g., the American Chemistry responsibility for compliance, the Council’s ChemSecure Security on the list of chemicals in Appendix A. facility should consult with the Comment: Commenters asked Conference and Expo from April 17–19, Department pursuant to § 27.120, and 2007). The Department has also whether a facility, after not having a COI the Department can work with the for an extended period of time, would supported other events, such as the facility to resolve those issues. 2007 Chemical Sector Security Summit have to re-submit a Top-Screen if the Comment: Other commenters raised facility obtained a COI above the STQ. on June 11–13, 2007, which was concerns about third party convened by the Chemical Sector Response: Under § 27.210(a)(1)(i), a 66 responsibility. Commenters wanted to facility that possesses any of the Coordinating Council. In addition, the know who was responsible for Department provides informative and chemicals listed in Appendix A at or complying with part 27 if a company or above the corresponding STQs must up-to-date resources about part 27 on its individual relies upon a third party to Web site (http://www.dhs.gov/ complete and submit a Top-Screen store and secure an Appendix A within 60 calendar days of the effective chemicalsecurity). The Department is chemical above the STQ. There was also interested in collaborating with private date of this final rule. In addition, a confusion over third party contractors/ facility that comes into possession of and public stakeholders, as well as the vendors who temporarily store COI on- media, in the interest of promoting a full any of the chemicals in Appendix A at site while completing a job. the listed STQs must complete and understanding of, and effective Commenters explained that the compliance with, part 27. submit a Top-Screen within 60 calendar challenge is to determine who days of coming into possession of the 2. Compliance Issues completes and submits, and how often, chemicals (emphasis added). a Top-Screen for a temporary tank. Comment: Several commenters asked Comment: Commenters suggested that Storage of COI may be temporary or DHS for clarification on identifying the DHS establish a ‘‘holding-time’’ transient in nature, which creates responsible party for submitting threshold for chemicals, with time confusion about how to apply the information through the Top-Screen. frames including 30 days and 60 days. definition of facility to COI. A few One commenter asked who, if anyone, Some commenters suggested an commenters asked if a landlord is is responsible to submit a Top-Screen, exemption for facilities that possess responsible for ensuring compliance chemicals only for short periods of time. 66 For information on the conference, see http:// with DHS regulations if their tenant Response: DHS has not established a www.dhs.gov/xprevprot/programs/ company leases a warehouse and stores ‘‘holding-time’’ threshold for chemicals. gc_1176736485793.shtm a COI above its allotted threshold. If terrorists have a reason to know that

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an attractive chemical is present at a guidance on these regulations. A few Title 6—Department of Homeland facility, the duration for which it is commenters were concerned about Security present is largely irrelevant. As a result, DHS’s ability to process information a facility must submit and complete a requests quickly enough so that Chapter 1—Department of Homeland Top-Screen if it possesses chemicals of requesting companies would not be Security, Office of the Secretary interest in a quantity that at any time denied or penalized as a result. PART 27—CHEMICAL FACILITY ANTI- meets the STQ. A commenter recommended that DHS TERRORISM STANDARDS 3. Miscellaneous replace the open-ended questions in the Comment: One commenter was Top-Screen (which asks for the value of ■ 1. The authority citation for part 27 concerned that there was a lack of products shipped from facilities) with a continues to read as follows: information describing the tier-based pull down menu listing ranges of values. The commenter thought that this Authority: Pub. L. 109–295, sec. 550. risk assessments. Another commenter ■ 2. Add the following definitions, in indicated that they were unable to would help incorporate the smaller sites that are exempt from the comparatively alphabetical order, to § 27.105, to read submit comprehensive comments, as follows: because DHS has not established criteria high thresholds for declaring and and performance standards for hosting inspections of chemical § 27.105 Definitions. weapons and their precursors under the determining risk-based tiers. * * * * * CWC. Response: Although these comments A Commercial Grade (ACG) shall refer are outside the scope of the rulemaking, Response: These comments are to any quality or concentration of a the Department provides a response, in outside the scope of this rulemaking, chemical of interest offered for the hopes of promoting a fuller which addresses the list of chemicals in commercial sale that a facility uses, understanding of part 27. The Appendix A. stores, manufactures, or ships. Department is preparing a IV. Regulatory Analyses A Placarded Amount (APA) shall refer comprehensive guidance document that to the STQ for a sabotage and provides detailed explanations for the A. Executive Order 12866: Regulatory contamination chemical of interest, as requirements by tier. The Department Planning and Review calculated in accordance with will make this guidance document § 27.203(d). available to facilities that have a need to DHS prepared and placed in the * * * * * know the information. docket a Regulatory Assessment Chemical of Interest shall refer to a Comment: Commenters expressed addressing the economic impact of the chemical listed in Appendix A to part concerns about the financial impact of IFR. See 72 FR 172688. That Regulatory 27. these new regulations on the American Assessment is applicable to this final economy. Some feel that the regulations rule. * * * * * CUM 100g shall refer to the would impose a larger financial burden B. Regulatory Flexibility Act on U.S.-based companies, giving foreign cumulative STQ of 100 grams for companies an advantage. One The Regulatory Flexibility Act (RFA) designated theft/diversion-CW/CWP commenter, in particular, was mandates that an agency conduct an chemicals and which is located in concerned that there will be an undue RFA analysis when an agency is Appendix A to part 27 as the entry for economic burden on local businesses if required to publish a notice of proposed the STQ and Minimum Concentration of DHS requires background checks for any rulemaking. See 5 U.S.C. 603(a). certain theft/diversion-CW/CWP level of facility. This, in turn, could lead Because the Department was not chemicals. to non-compliance. required to publish a notice of proposed * * * * * A few commenters requested that rulemaking for part 27,68 the Security Issue shall refer to the type DHS establish and publish Department was not required to conduct of risks associated with a given qualifications for reviewers 67 and that a RFA analysis. Nevertheless, the chemical. For purposes of this part, DHS require reviewers to register with Department did consider the impacts of there are four main security issues: CSAT. Other commenters noted that the part 27 on small entities, providing that (1) Release (including toxic, EPA and other agencies release analysis in the Regulatory Assessment flammable, and explosive); operating information to the public; for the IFR. See 72 FR 172688. That (2)Theft and diversion (including they thought that DHS, however, analysis is applicable to this final rule. chemical weapons and chemical should, for security reasons, maintain as weapons precursors, weapons of mass classified the information that it collects List of Subjects effect, and explosives and improvised explosive device precursors), because of part 27. Another commenter, Chemical security, Facilities, (3) Sabotage and contamination, and after noting that registration is only Incorporation by reference, Reporting (4) Critical to government mission and internet-based, requested that paper and recordkeeping, Security measures. registration be made available for areas national economy. that do not have public internet access. The Final Rule * * * * * One commenter was concerned that ■ For the reasons set forth in the 3. Amend § 27.200 by revising the Chemical Security Regulatory Task paragraph (b)(2) to read as follows: Force, which consists of five trained preamble, the Department of Homeland individuals, would not be able to guide Security revises part 27 to Title 6, Code § 27.200 Information regarding security the thousands of facilities seeking of Federal Regulations, to read as risk for a chemical facility. follows: * * * * * 67 A facility has the option of designating a (b) * * * reviewer for its facility. A reviewer is an individual 68 By directing the Secretary to issue ‘‘interim (2) A facility must complete and who can review, but not enter, edit, or submit, final regulations,’’ Congress authorized the information in the CSAT system. A facility can add Secretary to proceed without the traditional notice- submit a Top-Screen in accordance with a reviewer any time after the CSAT User and-comment required by the Administrative the schedule provided in § 27.210, the Registration process. Procedure Act. See 71 FR 78276. calculation provisions in § 27.203, and

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the minimum concentration provisions (v) In gasoline, diesel, kerosene or jet chemical of interest is present in a in § 27.204 if it possesses any of the fuel (including fuels that have mixture, and the concentration of the chemicals listed in Appendix A to this flammability hazard ratings of 1, 2, 3, or chemical is equal to or greater than one part at or above the STQ for any 4, as determined by using National Fire percent (1%) by weight, the facility applicable Security Issue. Protection Association (NFPA) 704: shall count the amount of the chemical * * * * * Standard System for the Identification of interest in the mixture toward the of the Hazards of Materials for STQ. If a release-toxic chemical of ■ 4. Add § 27.203 to read as follows: Emergency Response [2007 ed.], which interest is present in a mixture, and the § 27.203 Calculating the screening is incorporated by reference at concentration of the chemical is less threshold quantity by security issue. 27.204(a)(2)) stored in aboveground tank than one percent (1%) by weight of the (a) General. In calculating whether a farms, including tank farms that are part mixture, the facility need not count the facility possesses a chemical of interest of pipeline systems; amount of that chemical in the mixture that meets the STQ for any security (2) Release-Toxic, Release-Flammable, in determining whether the facility issue, a facility need not include and Release-Explosive Chemicals. possesses the STQ. Except for oleum, if chemicals of interest: Except as provided in paragraph the concentration of the chemical of (1) Used as a structural component; (c)(2)(i), in calculating whether a facility interest in the mixture is one percent (2) Used as products for routine possesses an amount that meets the STQ (1%) or greater by weight, but the janitorial maintenance; for release-toxic, release-flammable, and facility can demonstrate that the partial (3) Contained in food, drugs, release-explosive chemicals, a facility pressure of the regulated substance in cosmetics, or other personal items used need not include release-toxic, release- the mixture (solution) under handling or by employees; flammable, or release-explosive storage conditions in any portion of the (4) In process water or non-contact chemicals of interest that a facility process is less than 10 millimeters of cooling water as drawn from manufactures, processes or uses in a mercury (mm Hg), the amount of the environment or municipal sources; laboratory at the facility under the substance in the mixture in that portion (5) In air either as compressed air or supervision of a technically qualified of a vessel need not be considered when as part of combustion; individual as defined in 40 CFR 720.3. determining the STQ. The facility shall (6) Contained in articles, as defined in (i) This exemption does not apply to document this partial pressure 40 CFR 68.3; specialty chemical production; measurement or estimate. (7) In solid waste (including manufacture, processing, or use of (2) Release-Flammable Chemicals. If a hazardous waste) regulated under the substances in pilot plant scale release-flammable chemical of interest Resource Conservation and Recovery operations; or activities, including is present in a mixture in a Act, 42 U.S.C. 6901 et. seq., except for research and development, involving concentration equal to or greater than the waste described in 40 CFR 261.33; chemicals of interest conducted outside one percent (1%) by weight of the (8) in naturally occurring hydrocarbon the laboratory. mixture, and the mixture has a National (ii) [Reserved] mixtures prior to entry of the mixture (3) Propane. In calculating whether a Fire Protection Association (NFPA) into a natural gas processing plant or a facility possesses an amount that meets flammability hazard rating of 4, the petroleum refining process unit. the STQ for propane, a facility need not facility shall count the entire amount of Naturally occurring hydrocarbon include propane in tanks of 10,000 the mixture toward the STQ. Except as mixtures include condensate, crude oil, pounds or less. provided in § 27.203(b)(1)(v) for fuels field gas, and produced water as defined (c) Theft and Diversion Chemicals. In that are stored in aboveground tank in 40 CFR 68.3. calculating whether a facility possesses farms (including farms that are part of (b) Release Chemicals.—(1) Release- an amount of a theft/diversion chemical pipeline systems), if a release-flammable Toxic, Release-Flammable, and Release- of interest that meets the STQ, the chemical of interest is present in a Explosive Chemicals. Except as facility shall only include theft/ mixture in a concentration equal to or provided in paragraphs (b)(2) and (b)(3), diversion chemicals of interest in a greater than one percent (1%) by weight in calculating whether a facility transportation packaging, as defined in of the mixture, and the mixture has a possesses an amount that meets the STQ 49 CFR 171.8. Where a theft/diversion- National Fire Protection Association for release chemicals of interest, the Chemical Weapons (CW) chemical is (NFPA) flammability hazard rating of 1, facility shall only include release designated by ‘‘CUM 100g,’’ a facility 2, or 3, the facility need not count the chemicals of interest: shall total the quantity of all such mixture toward the STQ. The (i) In a vessel as defined in 40 CFR designated chemicals in its possession flammability hazard ratings are defined 68.3, in a underground storage facility, to determine whether the facility in NFPA 704: Standard System for the or stored in a magazine as defined in 27 possesses theft/diversion-CW chemicals Identification of the Hazards of CFR 555.11; that meet or exceed the STQ of 100 Materials for Emergency Response [2007 (ii) In transportation containers used grams. ed.]. The Director of the Federal Register for storage not incident to (d) Sabotage and Contamination approves the incorporation by reference transportation, including transportation Chemicals. A facility meets the STQ for of this standard in accordance with 5 containers connected to equipment at a a sabotage/contamination chemical of U.S.C. 552(a) and 1 CFR part 51. You facility for loading or unloading and interest if it ships the chemical and is may obtain a copy of the incorporated transportation containers detached from required to placard the shipment of that standard from the National Fire the motive power that delivered the chemical pursuant to the provisions of Protection Association at 1 container to the facility; subpart F of 49 CFR part 172. Batterymarch Park, Quincy, MA 02169– (iii) Present as process intermediates, 7471 or http://www.nfpa.org. You may ■ 5. Add § 27.204 to read as follows: by-products, or materials produced inspect a copy of the incorporated incidental to the production of a § 27.204 Minimum concentration by standard at the Department of product if they exist at any given time; security issue. Homeland Security, 1621 Kent Street, (iv) In natural gas or liquefied natural (a) Release Chemicals—(1) Release- 9th Floor, Rosslyn VA (please call 703– gas stored in peak shaving facilities; and Toxic Chemicals. If a release-toxic 235–0709) to make an appointment or at

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the or at the National Archives and (CWP Chemicals: Where a theft/ of the chemical at the specified Records Administration (NARA). For diversion-CWC/CWP chemical of minimum concentration. information on the availability of interest is not designated by ‘‘CUM (c) Sabotage and Contamination material at NARA, call 202–741–6030, 100g’’ in Appendix A, and the chemical Chemicals. For each sabotage/ or go to http://www.archives.gov/ is present in a mixture at or above the contamination chemical of interest, a federal_register/ minimum concentration amount listed facility shall count the total quantity of code_of_federal_regulations/ in the Minimum Concentration column all commercial grades of the chemical _ ibr locations.html. If a release- of Appendix A to part 27, the facility toward the STQ. flammable chemical of interest is shall count the entire amount of the ■ 6. Amend § 27.210 by revising present in a mixture, and the mixture toward the STQ. paragraph (a)(1)(i) to read as follows: concentration of the chemical is less (2) Theft/Diversion-Weapon of Mass than one percent (1%) by weight, the Effect (WME) Chemicals: If a theft/ § 27.210 Submissions Schedule. facility need not count the mixture in diversion-WME chemical of interest is * * * * * present in a mixture at or above the determining whether the facility (a)(1)(i) Unless otherwise notified, minimum concentration amount listed possesses the STQ. within 60 calendar days of November (3) Release-Explosive Chemicals. For in the Minimum Concentration column 20, 2007 for facilities that possess any each release-explosive chemical of of Appendix A to part 27, the facility of the chemicals listed in Appendix A interest, a facility shall count the total shall count the entire amount of the at or above the STQ for any applicable quantity of all commercial grades of the mixture toward the STQ. Security Issue, or within 60 calendar chemical of interest toward the STQ, (3) Theft/Diversion-Explosives/ days for facilities that come into unless a specific minimum Improvised Explosive Device Precursor possession of any of the chemicals listed concentration is assigned in the (EXP/IEDP) Chemicals. For each theft/ in Appendix A at or above the STQ for Minimum Concentration column of diversion-EXP/IEDP chemical of any applicable Security Issue; or Appendix A to part 27, in which case interest, a facility shall count the total the facility should count the total quantity of all commercial grades of the * * * * * quantity of all commercial grades of the chemical toward the STQ, unless a ■ 7. Revise Appendix A to part 27 to chemical at the specified minimum specific minimum concentration is read as follows: concentration. assigned in the Minimum Concentration (b) Theft and Diversion Chemicals. (1) column of Appendix A to part 27, in Appendix A to Part 27: DHS Chemicals Theft/Diversion-Chemical Weapons which case the facility should count the of Interest (CW) and Chemical Weapons Precursors total quantity of all commercial grades BILLING CODE 4410–10–P

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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] BILLING CODE 4410–10–C

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