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[Federal Register: January 12, 2010 (Volume 75, Number 7)]
[Proposed Rules]               
[Page 1552-1555]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja10-15]                         

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================



[[Page 1552]]



DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 27

[DHS 2009-0141]

 
Chemical Facility Anti-Terrorism Standards

AGENCY: Department of Homeland Security, National Protection and 
Programs Directorate.

ACTION: Request for comments.

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SUMMARY: The Department of Homeland Security (DHS or the Department) 
invites public comment on issues related to certain regulatory 
provisions in the Chemical Facility Anti-Terrorism Standards (CFATS) 
that apply to facilities that store gasoline in aboveground storage 
tanks.

DATES: Written comments must be submitted on or before March 15, 2010.

ADDRESSES: You may submit comments, identified by docket number DHS-
2009-0141, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: U.S. Department of Homeland Security, National 
Protection and Programs Directorate, Office of Infrastructure 
Protection, Infrastructure Security Compliance Division, Mail Stop 
8100, Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT: Todd Klessman, Office of 
Infrastructure Protection, Infrastructure Security Compliance Division, 
Mail Stop 8100, Washington, DC 20528, telephone number (703) 235-5263.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

ASP--Alternative Security Program
CFATS--Chemical Facility Anti-Terrorism Standards
COI--Chemical(s) of Interest
CVI--Chemical-terrorism Vulnerability Information
DHS--Department of Homeland Security
EPA--Environmental Protection Agency
RMP--Risk Management Program
SSP--Site Security Plan
STQ--Screening Threshold Quantity
SVA--Security Vulnerability Assessment
VCE--Vapor Cloud Explosion

I. Comments Invited

A. In General

    DHS invites interested persons to submit written comments, data, or 
views. For each comment, please identify the document number and agency 
name for this notice. DHS encourages commenters to provide their names 
and addresses. You may submit comments and materials electronically or 
by mail as provided under the ADDRESSES section. DHS will file in the 
public docket all comments received by DHS, except for comments 
containing confidential information, sensitive information, or 
Chemical-terrorism Vulnerability Information (CVI) as defined in 6 CFR 
27.400(b).

B. Handling of Confidential and Sensitive Information and Chemical-
terrorism Vulnerability Information (CVI)

    Do not submit comments that include trade secrets, confidential 
commercial information, Chemical-terrorism Vulnerability Information 
(CVI) or other sensitive information to the public docket. Please 
submit such comments separate from other non-sensitive comments 
regarding this notice. Specifically, please mark any confidential or 
sensitive comments as containing such information and submit them by 
mail to the individual listed in the FOR FURTHER INFORMATION CONTACT 
section. Any comments containing CVI should be marked and handled in 
accordance with the requirements of 6 CFR 27.400(f).
    DHS will not place any confidential or sensitive comments in the 
public docket; rather, DHS will handle them in accordance with 
applicable safeguards and restrictions on access. See, e.g., 6 CFR 
27.400. See also the DHS CVI Procedural Manual (``Safeguarding 
Information Designated as CVI,'' September 2008, located on the DHS Web 
site at http://www.dhs.gov/chemicalsecurity). DHS will hold any such 
comments in a separate file to which the public does not have access, 
and place a note in the public docket that DHS has received such 
materials from the commenter.

C. Reviewing Comments in the Docket

    For access to the docket to read the public comments received and 
relevant background documents referred to in this notice, go to http://www.regulations.gov.

II. Background

A. Chemical Facility Security Rulemaking

    Section 550 of the Homeland Security Appropriations Act of 2007 
(Pub. L. 109-295, Oct. 2006) required the Department to issue, within 
six months, interim final regulations for the security of chemical 
facilities that, ``in the Secretary's discretion, present high levels 
of security risk.'' Under that authority, the Department promulgated 
the Chemical Facility Anti-Terrorism Standards, 6 CFR Part 27 (CFATS), 
on April 9, 2007. See 72 FR 17688.
    The CFATS interim final rule sought public comment on Appendix A, a 
tentative list of over 300 chemicals of interest (COI) with the 
potential to create significant human life or health consequences if 
released, stolen or, diverted, or sabotaged. Section 27.200(b)(2) of 
the CFATS regulation requires any chemical facility that possesses any 
COI at or above the applicable screening threshold quantity (STQ) 
specified in Appendix A to complete and submit an online data 
collection (the Top-Screen) to DHS. The Department uses the facility's 
Top-Screen and, where applicable, other available information to 
perform a preliminary assessment of the facility's capacity to cause 
significant adverse consequences if targeted for a terrorist attack.\1\ 
DHS uses that preliminary consequence assessment to make an initial 
high-risk determination for the facility. See 6 CFR 27.200-27.210.
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    \1\ In this notice, the terms ``consequence'' or 
``consequentiality'' refer to the potential adverse effects on human 
life or health from a successful terrorist incident at a chemical 
facility. See generally 72 FR 17696, 17700-17701. DHS also has 
authority to determine that a facility is high-risk based on 
potential consequences to national security or critical economic 
assets. See 6 CFR 27.105; 72 FR 17700-17701.
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    The Department assigns each facility that is initially determined 
to be high-risk to a preliminary risk-based tier level (Tiers 1-4, with 
Tier 1 representing the highest risk) and notifies the facility that it 
must submit a Security Vulnerability Assessment (SVA) to DHS. The

[[Page 1553]]

Department uses the SVA to make a final high-risk and tiering 
determination. Only those facilities that are finally determined to be 
high-risk are subject to the full scope of the regulations and required 
to submit, for DHS approval, Site Security Plans (SSPs) or Alternative 
Security Programs (ASPs) that satisfy the risk-based performance 
standards specified in the CFATS regulations. See 6 CFR 27.220-27.225.
    DHS issued the final Appendix A on November 20, 2007. See 72 FR 
65396. The November 2007 rule clarified that chemicals of interest 
listed in Appendix A due to potential risks related to ``release'' are 
classified as Release-Explosives, Release-Flammables, or Release-
Toxics, according to the type of potential harm they may cause. See 72 
FR 65397. In response to comments on the tentative Appendix A, DHS also 
added provisions to CFATS to clarify under what circumstances \2\ and 
in what manner facilities must calculate the quantities of certain 
types of COI under Appendix A to determine if they are required to 
submit Top-Screens. See 72 FR 65397-65398.
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    \2\ Among other things, the November 2007 rule provided 
additional criteria related to the physical state (liquid, gas, or 
solid), concentration levels, and forms of packaging applicable to 
various chemicals of interest that must be counted under Appendix A.
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B. Special Provisions for Counting COI in Mixtures

    Among other clarifications made in November 2007, DHS added Sec.  
27.203, which instructs facilities on when and how to calculate the STQ 
for certain types of chemicals of interest. With respect to chemicals 
in gasoline, Sec.  27.203(b)(1)(v) requires facilities to count 
release-flammable COI (such as butane and pentane) contained

    in gasoline, diesel, kerosene or jet fuel (including fuels that 
have flammability hazard ratings of 1, 2, 3 or 4, as determined by 
using National Fire Protection Association (NFPA) [standard] 704 * * 
*) stored in aboveground tank farms, including tank farms that are 
part of pipeline systems.

    In response to comments requesting that DHS clarify whether and how 
facilities should count COI in mixtures when calculating whether a 
facility meets or exceeds the applicable STQ under Appendix A, the 
November 2007 rule also added Sec.  27.204. That section specifies how 
to calculate the amount of Release-Toxic, Release-Flammable and 
Release-Explosive COI (as well as Theft-COI) in chemical mixtures. See 
72 FR 65399, 65416. In particular, Sec.  27.204(a)(2) (the ``flammable 
mixtures rule'') clarified how to calculate the quantity of Release-
Flammable COI contained in chemical mixtures, including gasoline \3\ 
and the other fuels specified in Sec.  27.203(b)(1)(v), for purposes of 
Appendix A.
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    \3\ There is no single chemical composition for the mixture 
typically called ``gasoline,'' which varies in content and blending 
components from company to company, region to region, and season to 
season. All formulations of gasoline, however, contain a significant 
percentage of certain release-flammable chemicals (e.g., pentane, 
butane) and typically have a National Fire Protection Association 
(NFPA) flammability hazard rating of 3.
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    The CFATS flammable mixtures rule generally parallels the rules 
previously adopted by the U.S. Environmental Protection Agency (EPA) 
under the Clean Air Act's Risk Management Program (RMP) for counting--
or excluding--flammable chemicals contained in mixtures that may be 
inadvertently or accidentally released.\4\ See 72 FR 65402. As 
explained in the preamble to the November 2007 rule, however, given the 
different purposes, scope, and applicability of CFATS and the EPA RMP 
rules, there are several important differences between the CFATS and 
RMP mixture regulations. See 72 FR 65398-65399, 65401-65402.
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    \4\ See 40 CFR Part 68.
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    One such difference is that the CFATS flammable mixtures rule 
requires that Release-Flammable COI (such as butane or pentane) 
contained in gasoline (and other fuels specified in Sec.  
27.203(b)(1)(v)) must be counted under Appendix A, even though EPA does 
not count the flammable chemicals in gasoline under the terms of the 
RMP ``mixtures rule,'' 42 CFR 68.115(b)(2).\5\ See 72 FR 65399 and n. 
8. The November 2007 notice explained that, while EPA's RMP rules are 
premised solely on accidental releases of chemicals, the COI in these 
flammable mixtures, including gasoline, should be counted under 
Appendix A because of the potential consequences to human life or 
health of an intentional terrorist attack. See 72 FR 65399.
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    \5\ EPA's exclusion of flammable chemicals in gasoline from the 
RMP rules was mandated by the Chemical Safety, Information, Site 
Security and Fuels Regulatory Relief Act, Public Law 106-40. Cf. 72 
FR 65410 (EPA RMP program excludes flammable fuels). In addition, 
EPA agreed to delete gasoline from the original version of the RMP 
mixture rule, which had included gasoline, in settlement of 
litigation with the gasoline industry. See 63 FR 640 (Jan. 6, 1998). 
The RMP exclusion for gasoline and other flammable fuels was 
codified by EPA at 40 CFR 68.126.
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C. Implementation of CFATS

    Over 36,000 facilities have submitted Top-Screens to DHS and about 
6500 of those facilities were preliminarily determined by DHS to be 
high-risk and required to submit SVAs. DHS is now in the process of 
notifying those facilities that, based on review of their SVAs, DHS has 
finally determined to be high-risk and thus required to submit SSPs. On 
June 29, 2009, DHS issued final high-risk notifications to 10 
aboveground gasoline storage tank facilities (i.e., terminals).\6\ 
Subsequently, DHS extended the SSP due dates for those facilities to 
allow the Department to coordinate further actions regarding terminals 
as a group. This extension is indefinite, pending the Department's 
consideration of certain technical issues and questions raised during 
the initial high-risk determination process for those facilities, as 
discussed below.
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    \6\ This notice will refer to all facilities with aboveground 
gasoline storage tanks, including facilities (such as petroleum 
refineries) that may possess other chemicals that trigger the Top-
Screen requirement, as ``gasoline terminals'' or ``terminals.'' 
Approximately 4000 terminals submitted Top-Screens and DHS initially 
identified 405 of those facilities as high-risk.
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III. Issues Raised by the Gasoline Terminals Industry

A. Petition From International Liquid Terminals Association

    Soon after promulgation of the November 2007 Appendix A final rule, 
several trade associations representing gasoline terminals raised both 
technical and procedural issues related to the applicability of 
Appendix A and the Top-Screen requirement to those facilities. 
Procedurally, those associations claimed that DHS did not provide 
advance notice and opportunity to comment on the provisions of 
Sec. Sec.  27.203 and 27.204 related to aboveground fuel storage 
facilities that DHS added to CFATS in November 2007. Technically, the 
industry associations claimed that DHS had overestimated the potential 
consequences of a terrorist attack on gasoline terminals by relying on 
a model that calculates the impacts of a ``vapor cloud explosion'' from 
release of flammable liquids from aboveground storage tanks, which the 
industry asserted is unrealistic for gasoline terminals.
    On May 13, 2009, the International Liquid Terminals Association 
(ILTA) submitted a petition to DHS under the Administrative Procedure 
Act requesting that DHS exempt gasoline from CFATS and remove all 
references to gasoline terminals from Sec.  27.203(b)(1)(v) and the 
CFATS flammable mixtures rule (Sec.  27.204(a)(2)).\7\ Through this 
notice, DHS invites comments on certain technical issues related to the

[[Page 1554]]

applicability of CFATS to gasoline terminals.
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    \7\ The ILTA petition is included in the public docket for this 
notice and available for review at http://www.regulations.gov.
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B. Modeling of Potential Consequences From Aboveground Gasoline Storage 
Tanks

    In deciding to add provisions to CFATS for counting chemicals of 
interest in aboveground gasoline storage tanks, DHS considered several 
possible methods for modeling the potential consequences of terrorist 
incidents directed at such facilities--i.e., the vapor cloud explosion 
(VCE) model and the ``pool fire'' model.
1. Modified VCE Model for Gasoline Terminals
    In essence, a VCE model calculates the maximum distance at which a 
vapor cloud produced by release of flammable chemicals would be harmful 
or lethal to persons in or near the cloud (the ``distance to 
endpoint''), based on the amount of flammable liquid chemical 
available, the estimated amount of the liquid that would convert to 
vapor, and the distance the vapor cloud could spread before becoming 
too ``lean'' to explode when exposed to an ignition source.
    Since EPA had already developed a VCE model for estimating the 
consequences of accidental releases of flammable chemicals, including 
flammable mixtures, under the RMP regulations, DHS used the EPA VCE 
model as a starting point for modeling potential VCE consequences for 
all Release-Flammable COIs, including those at gasoline terminals.\8\ 
DHS modified the EPA VCE model, however, to account for certain 
differences between gasoline and other flammable liquids mixtures, as 
explained below. DHS believes the modified VCE model reflects a 
plausible worst-case scenario for terminals and is an appropriate tool 
for assessing the potential consequences of a terrorist attack against 
gasoline terminals.
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    \8\ EPA's VCE model is available in appendix C of EPA's ``RMP 
Guidance for Offsite Consequence Analysis'' (April 1999) at http://www.epa.gov/OEM/docs?chem?oca-all.pdf.
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    Specifically, DHS refined the EPA VCE model to provide an even more 
plausible estimate of the potential consequences of a terrorist attack 
on gasoline terminals in particular. While EPA's VCE model assumes that 
(up to) ten percent of a given amount of a flammable liquid will 
participate in the explosion (the ``yield factor''), DHS assumes that 
only one percent of gasoline will participate, based on gasoline's 
combustion properties and its storage at ambient conditions.\9\ This 
modification results in a reduction of the potential consequences 
calculated by the model, as compared to EPA's model, and appears to be 
consistent with the consequences from prior vapor cloud explosions 
involving gasoline, as discussed below. Therefore, the modified VCE 
model allows DHS to reasonably estimate the number of plausible worst-
case casualties resulting from a successful attack on a gasoline 
terminal.
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    \9\ See Letter dated December 10, 2008, from Sue Armstrong, DHS, 
to Robin Rorick, American Petroleum Institute, et al., which is 
available in the public docket for this notice.
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    DHS understands that the formation of a gasoline vapor cloud with 
the potential to cause significant harm to human life and health 
requires that a number of natural and man-made circumstances combine in 
a certain way, and that accidental gasoline vapor cloud explosions are 
therefore uncommon. DHS has determined, however, that those necessary 
conditions are more likely to exist in the event of an intentional 
terrorist incident than in the context of an accident, and thus, that 
it is reasonable and within the Secretary's discretion under Section 
550 to apply the modified VCE model to gasoline terminals. See 
generally 72 FR 65399.
    For example, in 2005 (long after EPA excluded gasoline from the RMP 
rule, see n. 5, supra), a vapor cloud explosion resulting from an 
unintentional overflow of a gasoline storage tank at the Buncefield Oil 
Storage Depot in Hertfordshire, UK caused significant injuries and 
other damage. Several gasoline storage trade associations have asserted 
that the combination of specific circumstances resulting in the 
Buncefield incident--e.g., accidental but prolonged and undetected 
overflow of the tank, failure of detection devices, congestion from 
nearby obstacles, weather conditions favoring accumulation rather than 
dispersal of the vapor cloud \10\--are so rare that DHS should 
disregard the possibility of such explosions at gasoline terminals.\11\
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    \10\ The ignition of such a vapor cloud, and the resulting 
explosion, would be relatively easy to cause once the other 
circumstances were in place.
    \11\ See ``Buncefield Major Incident Investigation Board: The 
Buncefield Incident,'' 11 December 2005 Final Report (2008), 
available at http://www.buncefieldinvestigation.gov.uk/reports. DHS 
does not believe that it is necessary or appropriate to detail all 
the circumstances of that incident, or to respond to every facet of 
the gasoline terminals industry analyses of those circumstances, in 
this notice.
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    DHS has concluded, however, that a terrorist seeking to cause such 
an explosion could target a facility where the necessary physical 
conditions exist (or are likely to occur at some point in time). In 
order to maximize the consequences of the explosion, such a terrorist 
could attempt to cause gasoline to leak or overflow from the targeted 
tank(s) in such a way as to make formation of a vapor cloud more likely 
than it would be in an accident like the Buncefield explosion.\12\
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    \12\ The pool fire model is described in EPA's ``RMP Guidance 
for Offsite Consequence Analysis'' (April 1999) at http://www.epa.gov/OEM/docs/chem/oca-all.pdf. As is true for the VCE model, 
EPA's RMP pool fire model reflects assumptions that may be 
appropriate for worst-case accidental release scenarios but that are 
not necessarily appropriate for plausible, worst-case intentional 
release scenarios.
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    Nonetheless, DHS invites public comment on the modified VCE model 
and on any alternatives to the specific modification made by DHS to the 
yield factor in the model.
2. ``Pool Fire'' Models
    DHS considered other options for evaluating the potential 
consequences of a release from such facilities. Specifically, DHS 
considered an existing model that calculates the potential consequences 
from the radiated heat of a ``pool fire'' caused by ignition of liquid 
gasoline suddenly released from one or more aboveground tanks, but that 
implicitly assumes the pool fire is confined within dikes or other 
secondary containment surrounding the tank(s).\13\ The gasoline 
industry asserts that this ``contained pool fire'' scenario is more 
realistic for terrorist incidents involving gasoline terminals (e.g., 
attacks using explosive devices or weapons) than the VCE scenario. The 
industry also asserts that the potential consequences of such contained 
pool fires do not warrant subjecting terminals to any CFATS 
requirements.
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    \13\ See letter dated December 10, 2008, from Sue Armstrong, 
DHS, to Robin Rorick, American Petroleum Institute, et al., 
available in the public docket for this notice. The mitigating 
effects, if any, of secondary containment may be taken into account, 
however, during the Department's determination as to whether a 
covered facility's Site Security Plan satisfies the CFATS risk-based 
performance standards.
    \14\ Models currently available for calculating the consequences 
of an uncontained pool fire include assumptions that may be 
appropriate for releases from certain small sources (e.g., a 
gasoline tank truck) but that are not realistic or appropriate for 
worst-case modeling of large-scale releases (e.g., a sudden release 
from an aboveground gasoline storage tank). For example, the current 
EPA RMP model assumes that the surface upon which the gasoline has 
been released is perfectly flat and non-permeable. See EPA's ``RMP 
Guidance for Offsite Consequence Analysis'' (April 1999) at http://www.epa.gov/OEM/docs/chem/oca-all.pdf.
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    DHS did not rely on the ``contained pool fire'' scenario, however, 
because any model that assumes the effectiveness of secondary 
containment does not represent a plausible, worst-case terrorist 
scenario, since an adversary seeking to maximize the consequences of 
attacking a terminal would also attempt to breach the secondary 
containment.\14\

[[Page 1555]]

    DHS is currently considering, however, and seeks comments on, 
whether it is feasible to refine existing models or develop a new model 
for uncontained pool fires (i.e., where the contents of one or more 
gasoline storage tanks escape from secondary containment), so that such 
a model could be used for future consequence assessments for gasoline 
terminals--in lieu of or in addition to the modified VCE model.

IV. Issues for Commenters

    Comments that will provide the most assistance to DHS should 
address the following issues and questions. Commenters should include 
explanations and relevant supporting materials with their comments 
whenever possible.
    a. Comments on the inclusion of 6 CFR 27.203(b)(1)(v) (counting of 
Release-COI in gasoline, diesel, kerosene, or jet fuel in aboveground 
storage tanks) and 6 CFR 27.204(a)(2) (the flammable mixtures rule), as 
they apply to gasoline terminals.
    b. Comments on the applicability of the modified VCE model to 
gasoline terminals, including: whether the reduction of the vapor yield 
for gasoline from ten percent (as in EPA's VCE model) to one percent 
reasonably reflects the potential consequences for a vapor cloud 
explosion from gasoline (as compared to other liquid flammable 
chemicals); and whether a different yield factor adjustment might 
better reflect the potential consequences for a vapor cloud explosion 
from gasoline.
    c. Comments on whether a reasonable model exists or should be 
developed for future use that would allow DHS to estimate the plausible 
worst-case consequences of an uncontained pool fire resulting from a 
successful attack on gasoline terminals.

    Dated: January 4, 2010.
Rand Beers,
Under Secretary for National Protection and Programs.
[FR Doc. 2010-234 Filed 1-11-10; 8:45 am]
BILLING CODE P
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