Appendix to Chemical Facility Anti-Terrorism Standards, 65396-65435 [07-5585]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 72, Number 223 (Tuesday, November 20, 2007)]
[Rules and Regulations]
[Pages 65396-65435]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5585]



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Part II





Department of Homeland Security





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6 CFR Part 27



Appendix to Chemical Facility Anti-Terrorism Standards; Final Rule

Federal Register / Vol. 72 , No. 223 / Tuesday, November 20, 2007 / 
Rules and Regulations

[[Page 65396]]


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DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 27

[DHS-2006-0073]
RIN 1601-AA41


Appendix to Chemical Facility Anti-Terrorism Standards

AGENCY: Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: This final rule revises the list of chemicals of interest, or 
COI, which the Department of Homeland Security (DHS or the Department) 
included as Appendix A to the Chemical Facility Anti-Terrorism 
Standards Interim Final Rule. Appendix A lists chemicals of interest 
and screening threshold quantities, or STQs. Any facility that 
possesses (or later comes into possession of) the listed chemicals in 
quantities that meet or exceed the STQ for any applicable security 
issue must complete and submit a Top-Screen. This will assist the 
Department in determining whether a facility presents a high level of 
security risk.
    In this final rule, DHS, among other things: (i) Adjusts the STQs 
for certain COI; (ii) defines the specific security issue or issues 
implicated by each chemical of interest, and in some cases, establishes 
different STQs for COI based upon the security issue presented; and 
(iii) adds provisions that instruct facilities on how to calculate the 
quantities of COI that they have in their possession.
    These refinements to Appendix A will assist the Department in more 
precisely identifying facilities that may be designated as high risk, 
while reducing the burden on facilities that possess chemicals in 
smaller amounts.

EFFECTIVE DATES: The effective date of Appendix A to part 27, as added 
on April 9, 2007 (72 FR 17688) and revised by this rule is November 20, 
2007. Additionally, the regulations published in this document are 
effective November 20, 2007. The incorporation by reference of certain 
publications listed in the rule is approved by the Director of the 
Federal Register as of November 20, 2007.

FOR FURTHER INFORMATION CONTACT: Marybeth Kelliher, Chemical Security 
Compliance Division, Department of Homeland Security, 703-235-5263.

SUPPLEMENTARY INFORMATION: Note that for brevity, all references to CFR 
parts will be to parts in Title 6 of the Code of Federal Regulations (6 
CFR), unless otherwise noted.

Table of Contents

I. Background
II. The Final Rule: The Revised List of Chemicals
    A. Overall Approach to Appendix A
    B. Effect of a Final Appendix A
    C. Provisions by Security Issue
    1. Release-Toxics and Release-Flammables
    2. Release-Explosives
    3. Theft/Diversion-Chemical Weapons/Chemical Weapons Precursors
    4. Theft/Diversion-Weapons of Mass Effect
    5. Theft/Diversion-Explosives/Improvised Explosive Device 
Precursors
    6. Sabotage/Contamination
    D. Chemicals With a Specialized Approach
    1. Propane
    2. Chlorine
    3. Ammonium Nitrate
    E. Technical Corrections
III. Discussion of Comments
    A. Specific Chemicals or Types of Chemicals
    1. In General
    2. Propane
    3. Chlorine
    4. Ammonium Nitrate
    5. Acetone and Urea
    6. Chemical Weapons and Chemical Weapons Precursors
    7. Explosives
    8. Hydrogen Peroxide
    B. Coverage of Appendix A
    1. Colleges and Universities
    2. Medical Research Organizations and Similar Laboratories
    3. Farms and the Agricultural Industry; Fumigation Industry
    4. Overlap With Other Federal Entities
    5. Concerns About Being Over-Inclusive
    C. Screening Threshold Quantities
    1. In General
    2. Modifying the ``Any Amount'' STQ
    3. Mixtures and Solutions
    D. Revisions to the COI List
    1. Technical Corrections
    2. Formatting and Approach
    E. Other Comments
    1. Procedural Issues
    2. Compliance Issues
    3. Miscellaneous Comments
IV. Regulatory Analyses
    A. Executive Order 12866: Regulatory Planning and Review
    B. Regulatory Flexibility Act

Abbreviations and Terms Used in This Document

ACG--A Commercial Grade
AN--Ammonium Nitrate
APA--A Placarded Amount
ASP--Alternative Security Program
CAS--Chemical Abstract Service
CGA--Compressed Gas Association
COI--Chemicals of Interest
CSAC--Chemical Security Analysis Center
CSAT--Chemical Security Assessment Tool
CUM 100g--Cumulative STQ of 100 grams for Designated Chemical 
Weapons
CVI--Chemical-terrorism Vulnerability Information
CW--Chemical Weapons
CWC--Chemical Weapons Convention
CWP--Chemical Weapons Precursors
DOT--U.S. Department of Transportation
EPA--Environmental Protection Agency
EXP--Explosives
FBI--Federal Bureau of Investigation
IED--Improvised Explosive Device
IEDP--Improvised Explosive Device Precursors
LNG--Liquefied Natural Gas
NFPA--National Fire Protection Association
NOS--Not Otherwise Specified
NPGA--National Propane Gas Association
RMP--EPA's Risk Management Program
SVA--Security Vulnerability Assessment
SSP--Site Security Plan
STQ--Screening Threshold Quantity
TQ--Threshold Quantity
TSA--Transportation Security Administration
VBIED--Vehicle-Borne Improvised Explosive Device
WME--Weapon of Mass Effect

I. Background

    On October 4, 2006, President George W. Bush signed the Department 
of Homeland Security Appropriations Act of 2007 (the Act), which 
provided the Department of Homeland Security with the authority to 
regulate the security of high risk chemical facilities. See Pub. L. 
109-295, Sec.  550. Section 550 required the Secretary of Homeland 
Security to promulgate interim final regulations ``establishing risk-
based performance standards for security of chemical facilities'' by 
April 4, 2007 and specified that the regulations ``shall apply to 
chemical facilities that, in the discretion of the Secretary, present 
high levels of security risk.'' Id.
    Pursuant to Section 550, on December 28, 2006, the Department 
issued an Advance Notice of Rulemaking (Advance Notice), which 
discussed a range of regulatory and implementation issues. See 71 FR 
78276. By directing the Secretary to issue ``interim final 
regulations,'' Congress authorized the Secretary to proceed without the 
traditional notice and comment required by the Administrative Procedure 
Act. See 71 FR 78276, 78277. The Department, however, saw great benefit 
in soliciting comments on as much of the program as was practicable in 
the short timeframe permitted under the statute and therefore 
voluntarily sought comment on the Advance Notice, including a range of 
significant programmatic issues and regulatory text.
    On April 9, 2007, the Department issued an Interim Final Rule 
(IFR), which responded to the comments to the Advance Notice and 
established a new part 27 to Title 6 of the Code of Federal 
Regulations. See 72 FR 17688. Part 27 establishes risk-based 
performance standards for the security of our Nation's chemical 
facilities. The rule requires covered chemical facilities to prepare 
Security Vulnerability Assessments (SVAs) that identify

[[Page 65397]]

facility security vulnerabilities. The rule also requires covered 
chemical facilities to develop and implement Site Security Plans (SSPs) 
that identify measures that satisfy the identified risk-based 
performance standards. It also allows certain covered chemical 
facilities, in specified circumstances, to submit Alternate Security 
Programs (ASPs) in lieu of an SVA, SSP, or both. In addition, the rule 
contains associated provisions addressing inspections and audits, 
recordkeeping, and the protection of information that constitutes 
Chemical-terrorism Vulnerability Information (CVI). Finally, the rule 
provides the Department with authority to compel compliance through the 
issuance of orders, including orders assessing civil penalties and 
orders to cease operations.
    The IFR, except for Appendix A to part 27, went into effect on June 
8, 2007. Appendix A contained a tentative list of Chemicals of Interest 
(COI). DHS accepted comments on the tentative list of chemicals in 
Appendix A (hereafter referred to as proposed Appendix A or proposed 
appendix) for 30 days until May 9, 2007. With this final rule, the 
Department responds to those comments and provides a final list of 
Chemicals of Interest in Appendix A. The same principles that guided 
the Department during the development of the proposed list have guided 
the Department during the development of this revised list, and those 
main principles are summarized here. First, DHS did not use any single, 
existing list as its sole source or classify all chemicals on any 
existing list in a particular way. Instead, DHS used multiple sources, 
so that it could obtain a more complete picture of the universe of 
facilities that may qualify as high risk. Second, in identifying the 
chemicals and STQs for chemicals, the Department sought to strike an 
appropriate balance: Sufficiently inclusive of chemicals in quantities 
that might present a high level of risk under the statute without being 
overly inclusive and thereby capturing facilities that are unlikely to 
present a high level of risk. Third, the Department has identified 
chemicals by considering security issue(s) associated with a chemical. 
The Department has identified the COI for preliminary screening based 
on the belief that these chemicals, if released, stolen or diverted, 
and/or contaminated, have the potential to create significant human 
life and/or health consequences.

II. The Final Rule: The Revised List of Chemicals

A. Overall Approach to Appendix A

    While the universe of chemicals in Appendix A has remained 
substantially the same, the Department has re-structured the format of 
the appendix and has more clearly defined the provisions associated 
with these chemicals. The Department has included a considerable amount 
of additional information in the appendix as well as some new 
provisions to the regulatory text. The changes that the Department has 
made have come directly from comments or otherwise logically resulted 
from comments where DHS agreed that the comments raised valid points 
and were within the scope of the proposed appendix.
    The proposed appendix listed only a chemical and a corresponding 
Chemical Abstract Service (CAS) number,\1\ however the final appendix 
includes that information as well as a new column with commonly-used 
synonyms for certain chemicals. The final appendix also adds several 
new columns that identify the security issue(s) associated with each 
chemical of interest (COI).\2\ In addition, the Department has assigned 
an STQ and minimum concentration provision to each chemical of 
interest. The final appendix, unlike the proposed appendix, does not 
trigger reporting obligations based on possession of an STQ of ``any 
amount.'' \3\
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    \1\ CAS numbers are unique identifiers for chemical substances.
    \2\ The Department has added definitions for Chemical of 
Interest (COI) and Security Issue to Sec.  27.105 ``Definitions.''
    \3\ See footnote 64.
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    In the final appendix, the Department has listed the security 
issue(s) associated with each chemical of interest. Although these same 
security issues drove the Department's selection of chemicals for 
inclusion in the proposed appendix, the Department did not list (in the 
proposed appendix) the security issue(s) for each particular chemical. 
This additional information provides guidance to regulated entities, so 
that they better understand how to use the appendix, and it explains 
the Department's rationale(s) for including these chemicals, at these 
STQs, on the list.
    The seven columns on the far right of the appendix contain the 
chemical facility security issues that the Department has identified 
for this appendix. There are three main categories of security issues: 
Release, theft/diversion, and sabotage/contamination.\4\ Two categories 
have three subcategories each. The ``release'' category has three 
subcategories: (1) Release-Toxic: Chemicals with the potential to 
create a toxic cloud that would affect populations within and beyond 
the facility, if intentionally released; (2) Release-Flammables: 
chemicals with the potential to create a vapor cloud explosion that 
would affect populations within and beyond the facility, if 
intentionally released; and (3) Release-Explosives: chemicals with the 
potential to affect populations within and beyond the facility if 
intentionally detonated. The ``theft and diversion'' category also has 
three subcategories: (1) Theft/Diversion-Chemical Weapons (CW)/Chemical 
Weapons Precursors (CWP): chemicals that could be stolen or diverted 
and used as CW or easily converted into CW; (2) Theft/Diversion-Weapons 
of Mass Effect (WME): chemicals that could be stolen or diverted and 
used directly as WME; and (3) Theft/Diversion-Explosives (EXP)/
Improvised Explosive Device Precursors (IEDP): chemicals that could be 
stolen or diverted and used in explosives or IEDs. The third category, 
``sabotage/contamination,'' refers to those chemicals that, if mixed 
with other readily-available materials, have the potential to create 
significant adverse consequences for human life or health.
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    \4\ As noted in the IFR and consistent with the definition of 
``security issue'' in Sec.  27.105, the Department recognizes one 
additional security issue--critical to government mission and 
national economy. (DHS has added a definition of security issue in 
this final rule at Sec.  27.105.) The loss or interruption in 
production of certain chemicals, materials, or facilities could 
create significant adverse consequences for national security, the 
national or regional economy, and/or the ability of the government 
to deliver essential services. The Department plans to assess 
currently-available information and to collect new information 
(e.g., through the Top-Screen process) as a means of identifying 
facilities responsible for these types of chemicals. At this time, 
DHS is not including any chemicals in the appendix based on this 
security issue, though it may do so in the future.
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    The Department has established baseline STQs for the chemicals of 
interest for each security issue. (DHS discusses the baselines in this 
preamble and also summarizes the general rules in Table 1: ``Summary of 
General Rules by Security Issue'' at the end of this section). DHS has 
set the STQ for each chemical of interest at the baseline amount for 
that chemical's security issue(s). Where necessary, the Department has 
identified a few exceptions. Most notably, DHS has developed a 
specialized approach for propane, chlorine, and ammonium nitrate.
    Each chemical in Appendix A presents at least one security issue, 
and

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

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

--Toward the release STQ of 5,000 pounds, a facility must count all 
quantities of sulfur dioxide in vessels and underground storage 
facilities; in transportation containers used for storage not incident 
to transportation, including storage containers connected to equipment 
at a facility for loading or unloading and storage containers detached 
from the motive power that delivered the container to the facility; and 
present as process intermediates, by-products, and material produced 
incidental to the production of a product if they exist at any given 
time.
--Toward the theft/diversion-WME STQ of 500 pounds, a facility must 
count all quantities of sulfur dioxide in a transportation packaging.

    If the facility has 5,000 pounds or more of sulfur dioxide 
aggregated onsite in vessel(s), transportation packaging(s), etc. or 
500 pounds or more of sulfur

[[Page 65400]]

dioxide in transportation packagings (or both), the facility must 
complete and submit a Top-Screen.
    Facilities must consider each security issue framework 
independently. As a result, there may be chemicals of interest that a 
facility counts under more than one security issue framework. That is 
completely appropriate, as there is a different focus (and therefore 
distinct counting and mixtures rules) for each security issue. For 
example, with respect to sulfur dioxide, a facility will count toward 
its release STQ quantities of sulfur dioxide in a tank car when that 
tank car is connected to equipment at the facility for loading and 
unloading and when that tank car is detached from the motive power that 
delivered it to the facility (see Sec.  27.203(b)(1)(ii)) and it will 
count toward its theft/diversion-WME STQ quantities of sulfur dioxide 
in tank cars (see Sec.  27.203(c)). Under both frameworks (release and 
theft), the facility may, in fact, count the same sulfur dioxide. As 
there are separate purposes for each framework, however, this is 
appropriate. The theft-STQ is focused on preventing someone from 
stealing or diverting the shipment of sulfur dioxide in the tank car 
and weaponizing it. The release-STQ is focused on preventing someone 
from intentionally releasing a quantity of sulfur dioxide that could 
affect the population within and beyond the facility.
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    \9\ Specialized STQs apply to ammonium nitrate, chlorine, and 
propane.

                              Table 1.--Summary of General Rules by Security Issue
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                                                                                                     Minimum
           Security issue                   STQ \9\          COI to exclude    COI to include     concentration
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Release--Toxic.....................  500-20,000 lbs.......         27.203(a)      27.203(b)(1)      27.204(a)(1)
                                                                27.203(b)(2)      27.204(a)(1)
Release--Flammable.................  10,000 lbs...........         27.203(a)      27.203(b)(1)      27.204(a)(2)
                                                                27.203(b)(2)      27.204(a)(2)
                                                                27.203(b)(3)
Release--Explosive.................  5,000 lbs............         27.203(a)      27.203(b)(1)      27.204(a)(3)
Theft/Diversion--CW/CWP............  CUM 100 grams-220 lbs         27.203(a)         27.203(c)      27.204(b)(1)
Theft/Diversion--WME...............  15-500 lbs...........         27.203(a)         27.203(c)      27.204(b)(2)
Theft/Diversion--EXP/IEDP..........  100-400 lbs..........         27.203(a)         27.203(c)      27.204(b)(3)
Sabotage/Contamination.............  A Placarded Amount...         27.203(a)         27.203(d)         27.204(c)
----------------------------------------------------------------------------------------------------------------

B. Effect of a Final Appendix A

    Under Section 550, the Department has the authority to use its best 
judgment and all available information in determining whether a 
facility presents a high level of security risk. Appendix A will assist 
the Department in determining which facilities present a high level of 
security risk. In Appendix A, the Department has identified chemicals 
of interest (at specified STQs) that trigger preliminary screening 
requirements. If a facility possesses a chemical of interest at or 
above the STQ for any applicable security issue, the facility must 
complete and submit a Chemical Security Assessment Tool (CSAT) Top-
Screen. The STQ is not the threshold for establishing whether a given 
facility is a high risk facility, but it is a threshold for determining 
whether the facility must complete and submit a Top-Screen.
    Only after the Department gathers additional information through 
the Top-Screen process will the Department make a determination \10\ as 
to whether a facility presents a high level of security risk and 
therefore must comply with the substantive requirements in part 27. 
Accordingly, the presence or amount of a particular chemical is not the 
sole factor in determining whether a facility presents a high level of 
security risk; it is not the only indicator of a facility's coverage 
under part 27.
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    \10\ Based on the information the Department receives in 
accordance with Sec.  27.200 and Sec.  27.205 (including information 
submitted through the Top-Screen), the Department makes a 
preliminary determination as to a facility's placement in a risk-
based tier. See Sec.  27.220(a). Following review of a covered 
facility's Security Vulnerability Assessment (SVA), the Department 
makes a final determination as to a facility's placement in a risk-
based tier. See Sec.  27.220(b).
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    Sections 27.200(b)(2) and 27.210 contain the requirements related 
to Appendix A, and those requirements are fully operative upon 
publication of this final rule in the Federal Register. Section 
27.200(b)(2) requires facilities to complete and submit a Top-Screen if 
they possess any of the chemicals identified in Appendix A at or above 
the STQ for any applicable security issue. If a facility possesses even 
one of the chemicals of interest listed in Appendix A at or above the 
applicable STQ, the facility has an obligation to complete and submit a 
Top-Screen. Section 27.210(a)(1)(i) provides the initial submissions 
schedule for facilities that have to submit a Top-Screen pursuant to 
Appendix A.
    Pursuant to Sec.  27.210(a), the Department uses two methods to 
require facilities to undergo preliminary screening (i.e., complete and 
submit a Top-Screen). The first method, found in Sec.  27.210(a)(1)(i), 
is linked to Appendix A. From the effective date of a final Appendix A 
(i.e., this final rule), facilities that possess any of the chemicals 
listed in Appendix A at or above the STQ for any applicable security 
issue will have 60 calendar days to complete and submit a Top-Screen to 
DHS. Facilities that later come into possession of such chemicals at or 
above the STQ for any applicable security issue will have to complete 
and submit a Top-Screen within 60 calendar days of coming into 
possession of such chemicals. See Sec.  27.210(a)(1)(i). In addition, 
covered facilities \11\ have an ongoing obligation to complete and 
update the Top-Screen as provided in Sec.  27.210(d). Covered 
facilities that make material modifications to their operations or site 
must complete and submit a revised Top-Screen within 60 days of the 
material modification. See Sec.  27.210(d).
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    \11\ As used herein, a ``covered facility'' (or ``covered 
chemical facility''), means ``a chemical facility determined by the 
Assistant Secretary to present high levels of security risk. * * *'' 
and differs from a ``chemical facility'' (or ``facility''), which 
refers to ``any establishment that possesses or plans to possess, at 
any relevant point in time, a quantity of a chemical substance 
determined by the Secretary to be potentially dangerous or that 
meets other risk-related criteria identified by the Department.'' 
See Sec.  27.105. Although DHS will require many facilities to 
complete and submit a Top-Screen, DHS will only require covered 
facilities to develop a chemical facility security program (i.e., 
complete a SVA pursuant to Sec.  27.215, develop and implement a SSP 
pursuant to Sec.  27.225, etc.).
---------------------------------------------------------------------------

    The second method, found in Sec.  27.210(a)(1)(ii), allows the 
Department to contact facilities independently of

[[Page 65401]]

Appendix A. Facilities must complete and submit a Top-Screen if the 
Department notifies the facility to do so through a Federal Register 
notice or on an individual basis through written notification. The 
Department may choose to contact facilities in this manner based on new 
or additional information or based on intelligence information about 
terrorists' interest in certain chemicals or certain facilities. The 
Department will specify the time frame for these Top-Screen submissions 
in the written notification. Since the effective date of the IFR, the 
Department has used the second method (i.e., contacting certain 
facilities individually and directing them to complete the Top-Screen). 
With the publication of this final rule, both triggering requirements 
for completing the Top-Screen will be in effect.

C. Provisions by Security Issue

1. Release-Toxics and Release-Flammables
a. Chemicals
    To identify the release chemicals for Appendix A, the Department 
looked to the list of substances in the EPA's RMP rule.\12\ See Tables 
1 and 2 to 40 CFR Sec.  68.130 for release-toxics and Tables 3 and 4 to 
40 CFR 68.130 for release-flammables. The Department had included all 
of the EPA RMP substances in proposed Appendix A,\13\ and aside from 
the exceptions noted below, continues to do so in this final appendix. 
For release-toxics, the Department uses the same listing criteria, 
including the EPA acute toxicity criteria and vapor pressure cut-off, 
which can be found in EPA's final rule, ``List of Regulated Substances 
and Threshold for Accidental Release Prevention; requirements for 
Petitions Under Section 112(r) of the Clean Air Act as Amended.'' See 
59 FR 4478, 4482 (January 31, 1994). EPA includes a toxic substance on 
its RMP list if the substance is an acute toxic that has vapor pressure 
high enough that the release could result in an offsite poisonous 
inhalation hazard.
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    \12\ The Clean Air Act (42 U.S.C. 7401, et seq.) provides that 
the EPA shall promulgate a list of substances that ``in the case of 
accidental release, are known to cause or may reasonably be 
anticipated to cause death, injury, or serious adverse effects to 
human health or the environment.'' See 42 U.S.C. 7412(r)(3).
    \13\ Note that some of these chemicals present not only a 
release issue, but present additional security issue(s) too (e.g., 
theft and diversion or sabotage and contamination).
---------------------------------------------------------------------------

    In this final appendix, the Department has removed three release-
toxic chemicals \14\ that it had included in the proposed appendix. 
While these three toxic chemicals appear on EPA's RMP list, they do not 
meet the RMP listing criteria for vapor pressure. EPA included these 
three chemicals in their RMP list, because Congress specifically 
required their inclusion pursuant to Sec.  7412(r)(3) of the Clean Air 
Act, 42 U.S.C. 7401 et seq.\15\ Because these chemicals do not 
otherwise meet the RMP listing criteria for toxic chemicals, DHS has 
removed them from Appendix A.
---------------------------------------------------------------------------

    \14\ The three release-toxics are: Toluene 2,4-diisocyanate; 
Toluene 2,6-diisocyanate; and Toluene diisocyanate (unspecified 
isomer).
    \15\ In 42 U.S.C. Sec.  7412(r)(3), Congress directed EPA to 
include toluene diisocyanate (TDI) in its RMP list. EPA looked to 
the types of TDI in commercial production (i.e., those types listed 
on the Toxic Substances Control Act Chemical Substance Inventory) 
and listed the three forms noted in footnote 14.
---------------------------------------------------------------------------

    For release-flammable chemicals, DHS also uses the same listing 
criteria as EPA does for release-flammable chemicals. EPA, and now DHS, 
identifies flammable gases and volatile flammable liquids based on the 
flash point and boiling point criteria that the NFPA uses for its 
highest flammability hazard ranking (Class IA). The criteria can be 
found in EPA's Final List Rule. See 59 FR 4478, 4480 (January 31, 
1994).
b. STQ
    DHS set the STQ for release-toxics at the same amount that EPA set 
the Threshold Quantity (TQ) for toxic substances under its RMP 
regulation.\16\ That amount ranges from 500 to 20,000 pounds, depending 
on the toxicity and volatility of the substance. Likewise, DHS set the 
STQ for release-flammables at the same amount as EPA--10,000 pounds. 
The Department has adopted the EPA RMP TQs, because DHS accepts the 
same rationale that EPA used when setting its TQs--i.e., that they are 
amounts that, if released, have the potential to create significant 
human health effects. The Department realizes that, in developing these 
TQs, EPA collected extensive input on and conducted a thorough 
analysis, and DHS wants to leverage that knowledge base.
---------------------------------------------------------------------------

    \16\ See 40 CFR part 68.
---------------------------------------------------------------------------

    Whereas the Department had proposed to set the STQs for these 
release chemicals at seventy-five percent of the EPA RMP TQs in the 
IFR, the Department has instead set these STQs at the same amount as 
the EPA RMP TQs. In doing so, the Department accepted the 
recommendation of many commenters to set the STQ for these release 
chemicals at, rather than below, the EPA RMP TQs. The Department 
realized that it did not need to reduce its STQs to a level below that 
of the EPA TQs, because even though DHS and EPA are seeking to satisfy 
two different mandates (i.e., DHS to prevent an intentional release and 
EPA to prevent an accidental release), DHS has made accommodations for 
that difference. The DHS method for calculating an STQ is more 
conservative than that of the EPA for TQs. Under part 27, except for 
the exclusions listed in Sec.  27.203(a), (b)(2), and (b)(3), a 
facility must aggregate the total amount of COI that it possesses at 
its facility, including COI that may exist in separate processes. By 
contrast, under EPA's RMP regulation, a facility must consider the 
total quantity of a regulated substance ``contained in a process'' that 
exceeds the TQ. See 40 CFR 68.115(a). For example, a facility that has 
multiple processes (involving an RMP substance), with each process 
below the threshold for the reportable TQ, would not be covered under 
RMP. That facility, however, would be covered under part 27 if the 
total quantity of all the processes (associated with a chemical of 
interest) was at or above the STQ.
    DHS believes that, in the case of an intentional terrorist attack, 
chemicals or materials would likely be released from multiple vessels 
rather than a single vessel. As a result, the Department believes that 
setting the STQ at an amount that reflects the entire inventory of the 
facility better captures the potential consequences of an intentional 
attack. The Department believes this is more appropriate than EPA's 
valid assumption for accidents that the worst-case release \17\ would 
be a release from the largest vessel.
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    \17\ In 40 CFR 68.3, EPA defines ``worst-case release'' as ``the 
release of the largest quantity of a regulated substance from a 
vessel or process line failure that results in the greatest distance 
to an endpoint defined in Sec.  68.22(a).''
---------------------------------------------------------------------------

    Despite the general rule for release chemicals (i.e., that the DHS 
STQs are the same as the EPA TQs), there are a few differences between 
the EPA TQs and the DHS STQs. First, as discussed below in section 
II(D)(1), DHS treats propane differently than all other release-
flammables. Second, the RMP TQ for toxic substances applies to all DHS 
release-toxics except for eleven \18\ that meet the RMP listing 
criteria for both toxicity and flammability. EPA treats these 
substances as toxics in its RMP rule; however, DHS lists these 
substances as flammables (and sets the

[[Page 65402]]

STQ at 10,000 pounds), because, in an intentional release, they are 
more likely to act like flammables and potentially create an explosive 
vapor cloud.
---------------------------------------------------------------------------

    \18\ The eleven RMP release-toxics are: ethylene oxide, furan, 
hydrazine, hydrogen selenide, methyl chloride, methyl mercaptan, 
nickel carbonyl, peracetic acid, phosphine, propylene oxide, and 
tetranitromethane.
---------------------------------------------------------------------------

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

    \19\ As a result of that decision, DHS removed chemicals such as 
dinitrosobenzene, sodium dinitro-o-cresolate, sodium picramate, 
tetrazol-1-acetic acid, and zirconium picramate.
---------------------------------------------------------------------------

    DHS has incorporated all of the DOT Class 1, Division 1.1 explosive 
chemicals with only two broad exceptions. First, the Department does 
not include those explosive materials for which DOT uses a generic 
shipping name with the suffix ``N.O.S.'' \20\ This refers to materials 
with generic descriptions in the Hazardous Materials Table in 49 CFR 
172.101 (e.g., Substances, explosive, n.o.s.). The Department has 
instead identified the relevant Class 1 explosive materials as only 
those that DOT specifically names in its Hazardous Materials Table. 
Second, DHS does not include articles

[[Page 65403]]

or devices that DOT lists in its Hazardous Material Table. Examples of 
those articles and devices include charges, guns, detonators, detonator 
assemblies, fuses, primers, cartridges, and motors. DHS does not 
believe, at this time, that it is necessary to include this broader 
universe of substances and materials. Coverage of chemical facilities 
that present a high level of risk and that include these materials will 
be triggered by other STQ provisions of this rule. If the Department 
finds that is not the case for a particular facility, the Department 
will seek information from that facility.
---------------------------------------------------------------------------

    \20\ N.O.S. refers to ``not otherwise specified.''
---------------------------------------------------------------------------

    DHS believes it is appropriate to include DOT Class 1, Division 1.1 
explosive materials in Appendix A despite the EPA's exclusion of these 
materials. At the onset of the RMP program, EPA had listed DOT Division 
1.1 explosives as a regulated substance. EPA set the TQ at 5,000 
pounds, because the EPA believed that a blast wave from such an amount 
had the potential to cause offsite impacts. See 59 FR 4478 (January 31, 
1994). EPA later issued a final rule, delisting Class 1, Division 1.1 
explosives. See 63 FR 640 (January 6, 1998). In the final rule, EPA 
concluded that ``current regulations and current and contemplated 
industry practices promote safety and accident prevention in storage, 
handling, transportation, and use of explosives. As a result, these 
regulations and practices adequately protect the public and the 
environment from the hazards of accidents involving explosives.'' See 
63 FR 640, 641. DHS notes that EPA's decisions were based on safety and 
the prevention of an accidental release. DHS is concerned with an 
intentional attack on an explosives facility, which has the potential 
to generate significant impacts for human life and health beyond the 
facility. Given the different focus of DHS's regulation, it is 
important that DHS consider DOT Class 1, Division 1.1 explosives; there 
is the potential for a serious off-site effect from an intentional and 
successful attack on a facility with these explosives.
b. STQ
    DHS proposed an STQ of 2,000 pounds \21\ for release-explosives but 
now sets the STQ for release-explosives at 5,000 pounds. As discussed 
above in relation to release-toxics and release-flammables, DHS has 
decided to set the STQ for release chemicals at the EPA TQs. Five 
thousands pounds is the TQ that EPA had used for DOT Division 1.1 
explosives when the DOT Division 1.1 explosives were part of the EPA 
RMP program. In addition, this is the same quantity that TSA now 
proposes to use for DOT explosives in its Rail Transportation Security 
NPRM.\22\ All release-explosives are also listed as theft/diversion-
EXP/IEDP chemicals (although all theft/diversion-EXP/IEDP chemicals are 
not listed as release-explosives, because the theft/diversion-EXP/IEDP 
category includes both actual explosives and precursors to explosives). 
A facility that possesses a chemical that presents both a release-
explosive hazard and a theft/diversion-EXP/IEDP hazard must consider 
both of the applicable STQs, and if the facility possesses a quantity 
that satisfies either STQ, the facility must complete and submit the 
Top-Screen.
---------------------------------------------------------------------------

    \21\ In the proposed appendix in the IFR, DHS set the STQ for 
these explosive chemicals at 2,000 pounds. In the IFR, however, DHS 
was only considering the theft/diversion concern. In the IFR, had 
DHS set the STQ for these explosive chemicals (using the method of 
calculating the STQ at 75% of the EPA RMP TQ) based on a release 
concern the STQ would have been 3,750 pounds. As discussed in this 
preamble, while the current EPA RMP does not contain release-
explosives, EPA had previously included release-explosives in the 
RMP program, and when doing so, EPA set the TQ at 5,000 pounds.
    \22\ 71 FR 76852 (December 21, 2006). See proposed 49 CFR 
1580.100(b)(1).
---------------------------------------------------------------------------

    In calculating whether a facility meets the STQ for release-
explosive chemicals, the facility need not include release-explosive 
chemicals of interest that a facility manufactures, processes, or uses 
in a laboratory at the facility under the supervision of a technically 
qualified individual as defined in 40 CFR 720.3. See Sec.  
27.203(b)(2). This provision is identical to the laboratory quantities 
provision that applies to release-toxic and release-flammable chemicals 
and that is discussed above.\23\
---------------------------------------------------------------------------

    \23\ See Sec.  II(C)(1)(b) above.
---------------------------------------------------------------------------

c. Minimum Concentration (Mixtures)
    Section 27.204(a)(3) provides that a facility shall count toward 
the STQ the total quantity of all commercial grades of release-
explosives. DHS has added a definition of ``A Commercial Grade'' (ACG) 
to Sec.  27.105. ACG refers to any quality or concentration of a 
chemical of interest offered for commercial sale that a facility uses, 
stores, manufactures, or ships.
3. Theft/Diversion-CW/CWP
a. Chemicals
    In identifying chemical weapons (CW) and their precursors that are 
at risk for theft or diversion, the Department looked to the chemicals 
covered by the Chemical Weapons Convention (CWC).\24\ The chemicals 
covered by the CWC regulations are divided into three lists, or 
``schedules,'' based on their previous use as a CW or possible utility 
in developing chemical weapons.\25\ Schedule 1 covers chemical weapons 
agents and their immediate precursors. They have very limited 
industrial and medical applications. Schedule 2 covers chemicals and 
precursors that have some industrial uses. Schedule 3 covers chemicals 
and precursors with broad commercial applications, some of which were 
formerly weaponized.\26\
---------------------------------------------------------------------------

    \24\ The Convention on the Prohibition of the Development, 
Production, Stockpiling and Use of Chemical Weapons and on Their 
Destruction is an international arms control, disarmament, and non-
proliferation treaty, which is implemented by 22 U.S.C. 6701, et. 
seq. The Department of Commerce administers the implementing 
regulations. See 15 CFR part 710.
    \25\ Schedule 1 chemicals are provided in Supplement No. 1 to 15 
CFR part 712, Schedule 2 chemicals are provided in Supplement No. 2 
to 15 CFR part 713, and Schedule 3 chemicals are provided in 
Supplement No. 3 to 15 CFR part 714.
    \26\ See ``The Chemical Weapons Convention Regulations: 
Frequently Asked Questions and Answers on Industry Compliance,'' 
U.S. Department of Commerce, Bureau of Industry and Security, 
Publication CWC-006 (Updated May 2006).
---------------------------------------------------------------------------

    While the Department included chemicals from all three Schedules 
\27\ in proposed Appendix A, the Department has only included select 
chemicals from the CWC Schedules in final Appendix A. The Department 
continues to include all specifically identified Schedule 1 chemicals, 
because they are actual CW agents and their immediate precursors. Note 
that, based on comments, the Department has listed these Schedule 1 
chemicals by their individual common name along with their chemical 
name.
---------------------------------------------------------------------------

    \27\ There were a few Schedule 1 chemicals, however, that were 
inadvertently omitted from the proposed appendix.
---------------------------------------------------------------------------

    With respect to Schedule 2 and 3 chemicals, the Department has only 
included those Schedule 2 and 3 chemicals and precursors that are 
``easily weaponizable''--that is, they could be easily converted into 
chemical weapons using simple chemistry, equipment, and techniques.\28\ 
DHS made the determination about ``weaponizability'' after consulting 
with several sources, including the Federal Bureau of Investigation 
(FBI) and the DHS Chemical Security Analysis Center (CSAC).\29\ As a 
result of this approach, the Department removed chemicals that had 
appeared on the proposed list but

[[Page 65404]]

were now determined not to be easily weaponizable (e.g., chloropicrin). 
In addition to including select CWC chemicals, Appendix A also contains 
one other easily weapo