48108 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

DEPARTMENT OF JUSTICE

40 CFR Chapter IV

[AG Order No. 2318–2000]

RIN 1105–AA70

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Chapter IV

RIN 2050–AE80

Accidental Release Prevention

Requirements; Risk Management

Programs Under the Clean Air Act

Section 112(r)(7); Distribution of OffSite Consequence Analysis

Information

AGENCIES: Department of Justice and

Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA) and the Department of

Justice (DOJ) are promulgating a rule

that provides for access to information

concerning the potential off-site

consequences of hypothetical accidental

chemical releases from industrial

facilities. Under section 112(r) of the

Clean Air Act (CAA), facilities handling

large quantities of extremely hazardous

chemicals are required to include that

information in a risk management plan

(RMP) submitted to EPA. As required by

the Chemical Safety Information, Site

Security and Fuels Regulatory Relief Act

(CSISSFRRA), this rule provides

members of the public and government

officials with access to that information

in ways designed to minimize the

likelihood of accidental releases, the

risk to national security associated with

posting the information on the Internet,

and the likelihood of harm to public

health and welfare.

DATES: This rule is effective on August

4, 2000.

ADDRESSES: Supporting information

used to develop the proposed rule and

the final rule is contained in Docket No.

A–2000–20. The docket is available for

public inspection and copying between

8 a.m. and 5:30 p.m., Monday through

Friday (except government holidays), at

Waterside Mall, Room M1500, 401 M

Street, S.W., Washington, DC 20460. A

reasonable fee may be charged for

copying. The assessments upon which

this rule is based are also available on

the Internet at http://www.usdoj.gov

and http://www.epa.gov/ceppo.

FOR FURTHER INFORMATION CONTACT:

Brenda Sue Thornton, Trial Attorney,

Criminal Division, Terrorism and

Violent Crime Section, Department of

Justice, 601 D Street, N.W., Room 6500,

Washington, DC 20530, (202) 616–5210;

John Ferris, Chemical Engineer, (202)

260–4043, or Vanessa Rodriguez,

Chemical Engineer, (202) 260–7913,

Chemical Emergency Preparedness and

Prevention Office, Environmental

Protection Agency (5104), 1200

Pennsylvania Avenue, N.W.,

Washington, DC 20460; or the

Emergency Planning and Community

Right-to-Know Hotline at (800) 424–

9346 (in the Washington, DC,

metropolitan area, (703) 412–9810). You

may wish to visit the Chemical

Emergency Preparedness and

Prevention Office (CEPPO) Internet site

at http://www.epa.gov/ceppo.

SUPPLEMENTARY INFORMATION: This rule

was published in the Federal Register

as a proposed rule on April 27, 2000 (65

FR 24834). This Federal Register action

announces EPA and DOJ’s final

decisions on the rule.

Table of Contents

I. Introduction

A. Statutory Authority and Background

B. The Proposed Rule

II. Discussion of Comments on the Proposed

Rule

A. Risk and Benefits Assessments

1. Benefits Assessment

2. Risk Assessment

3. The Assessments and the Proposed Rule

B. General Comments on the Rule

C. Rule’s Impact on Risk Reduction

D. Reading Rooms

1. General Comments on Reading Rooms

2. The Number of Paper Copies

3. Operation of Reading Rooms

4. The Number of Reading Rooms

5. The Location of Reading Rooms

6. Security Measures at Reading Rooms

7. Alternatives to Reading Rooms

E. Enhanced Local Access to OCA

Information

F. Risk Indicator System (Vulnerable Zone

Indicator System)

G. Internet-Accessible OCA Information

H. Access to OCA Information by

Government Officials

I. Other Provisions

III. Discussion of Final Rule

A. Access to Paper Copies of OCA

Information

B. Enhanced Access to Local OCA

Information

C. Vulnerable Zone Indicator System

D. Internet Access to Selected OCA

Information

E. Additional Information on Chemical

Accident Risk

F. Access to OCA Information by

Government Officials and Other

Provisions

G. Effective Date and Implementation

Schedule

IV. Administrative Requirements

A. Docket

B. Executive Order 12866

C. Executive Order 12988

D. Executive Order 13045

E. Executive Order 13084

F. Executive Order 13132

G. Regulatory Flexibility Act

H. Paperwork Reduction Act

I. Unfunded Mandates Reform Act of 1995

J. Small Business Regulatory Enforcement

Fairness Act of 1996

K. Congressional Review Act

V. Judicial Review

I. Introduction

A. Statutory Authority and Background

As more fully described in the notice

of proposed rulemaking (NPRM) (65 FR

24853 (April 27, 2000)), the federal

government’s efforts to prevent and

mitigate chemical accidents are

reflected in several pieces of legislation,

including section 112(r) of the CAA, 42

U.S.C. 7412(r). In that section, Congress

imposed a general duty on industrial

facilities handling any extremely

hazardous chemicals to do so safely

(CAA section 112(r)(1)), and required

EPA to establish a regulatory program

for facilities that pose the greatest risk

(CAA section 112(r)(7)). Congress

directed that the regulatory program

require covered facilities to develop and

implement a risk management program

for preventing accidental chemical

releases and minimizing the

consequences of releases that do occur.

Congress further mandated that facilities

perform an off-site consequences

analysis (OCA) for one or more

hypothetical accidental worst case and/

or alternative release scenarios and

report the results of the analysis in a

risk management plan (RMP) to be

submitted to federal, state, and local

government agencies and made

available to the public.

EPA issued the rules establishing the

regulatory program required by CAA

section 112(r) on January 31, 1994 (59

FR 4478) and June 20, 1996 (61 FR

31668, the ‘‘RMP rule’’). In those rules,

EPA continued the philosophy that EPA

embraced in implementing the

Emergency Planning and Community

Right-to-Know Act of 1986 (EPCRA).

Specifically, EPA recognized that

regulatory requirements by themselves

will not guarantee safety, and that

providing the public with information

about hazards in a community can and

should lead government officials and

the public to work with industry to

prevent accidents. EPA thus relied on

the public availability of RMPs to

stimulate further chemical risk

reductions efforts, which occur

primarily at the local level where the

risk is found.

Over 15,000 facilities are subject to

the RMP rule. In an effort to reduce the

burden of collecting and disseminating

RMPs, EPA designed an electronic RMP

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48109

form that could be placed on the

Internet for purposes of public access.

However, the Federal Bureau of

Investigation and other representatives

of the law enforcement and intelligence

communities raised concerns that

releasing the OCA portions of RMPs via

the Internet would enable individuals

anywhere in the world anonymously to

search electronically for industrial

facilities in the U.S. to target for

purposes of causing an intentional

industrial chemical release. In response

to those concerns, EPA posted RMPs on

the Internet (www.epa.gov/ceppo/)

without the sections of the RMP that

contain OCA results (sections 2 through

5). However, those OCA sections, and

any EPA electronic database created

from those sections, were still subject to

public release in electronic format

pursuant to the Freedom of Information

Act (FOIA), 5 U.S.C. 552. On August 5,

1999, CSISSFRRA was enacted (Pub. L.

No. 106–40) to provide at least a oneyear exemption from FOIA for ‘‘OCA

information,’’ including the OCA

portions of RMPs and any EPA database

created from those portions.

CSISSFRRA amended section 112(r)(7)

of the CAA by adding a new

subparagraph (h).

CSISSFRRA requires the President, by

the end of the one-year period of the

FOIA exemption, to decide how to

disseminate OCA information.

Specifically, CSISSFRRA requires the

President to assess ‘‘the increased risk of

terrorist and other criminal activity

associated with the posting of [OCA]

information on the Internet’’ and ‘‘the

incentives created by public disclosure

of [OCA] information for reduction in

the risk of accidental releases’’ (CAA

section 112(r)(7)(H)(ii)(I)). Based on

those assessments, the President is

required by August 5, 2000, to

promulgate a regulation governing

access to OCA information in a manner

that minimizes the likelihood of

chemical releases, however caused.

Until that time, CSISSFRRA limits

public access to OCA information but

provides government officials access for

purposes of preventing, planning for, or

responding to chemical releases. The

President delegated to the Attorney

General and the Administrator of EPA

the authority to conduct the required

assessments and rulemaking (see the

delegation memorandum at 65 FR 8631

(February 22, 2000)). The proposed and

final rules are subject to approval by the

Director of the Office of Management

and Budget (OMB).

The risk and benefits assessments

were completed and used as the basis

for the proposed rule. The conclusions

of those assessments are fully described

in the NPRM. Briefly, the risk

assessment found that an increased risk

of terrorist or other criminal activity

would accompany the release of certain

items of OCA information via the

Internet. That information could be used

by terrorists or other criminals for

purposes of targeting or maximizing the

results of industrial chemical releases.

The benefits assessment concluded that

public disclosure of OCA information

would likely lead to a significant

reduction in the number and severity of

accidental chemical releases. It also

found that ease of public access to

information is important to the public’s

use of that information. The risk and

benefits assessments are available in the

docket for this rulemaking and on the

EPA and DOJ websites (www.epa.gov/

ceppo/ and www.usdoj.gov).

B. The Proposed Rule

Based on the risk and benefits

assessments, EPA and DOJ proposed

providing the public with several means

of obtaining access to OCA information

and information about the risk

expressed by OCA information. The

complete proposal is contained in the

NPRM. A brief summary follows.

In order to minimize the risk of

Internet dissemination of OCA

information while still providing public

access to that information, we proposed

to provide the public with access to

paper copies of OCA information for

covered facilities at 50 or more federal

reading rooms geographically

distributed across the United States. At

the reading rooms, members of the

public would have access to OCA

information for a limited number of

facilities, located anywhere in the

country, and would be able to read the

information and take notes from it, but

not remove or mechanically reproduce

it. Reading rooms would be authorized

to provide any member of the public

with access to OCA information for up

to 10 stationary sources per calendar

month. Based upon an analysis of the

geographic distribution of RMP-covered

facilities, we concluded that the 10 per

individual per calendar month limit

would still permit most members of the

public to have access to OCA

information for facilities in whose

‘‘vulnerable zone’’ they live or work, as

well as to OCA information for a few

other facilities located elsewhere.

In addition, we proposed making the

less sensitive items of OCA information

available to the public on the Internet by

posting them on EPA’s website. Those

items of OCA information included

information about passive and active

safety systems used by facilities; we

explained that that information would

facilitate risk reduction dialogues

among members of the public, state and

local officials, and facilities. Only the

items of OCA information for which the

risk assessment found there was a

significant risk of use for terrorist or

other criminal purposes would be

excluded from Internet posting.

We also proposed creating a ‘‘risk

indicator’’ system as a tool for providing

the public with a means of

understanding, via Internet inquiry,

some aspects of the risk expressed by

OCA information. Members of the

public would be able to enter a specific

address (such as that of a home, school,

or place of employment) into the risk

indicator system and learn if that

address might be within the ‘‘vulnerable

zone’’ of at least one facility that

submitted an RMP to EPA. Members of

the public who do not have access to the

Internet would be able to obtain the

same information by calling the EPA

hotline or by mailing a request to the

Administrator of EPA. The risk

indicator system also would inform

individuals of several means by which

they could obtain the names of the

facilities and additional information.

Further, we proposed authorizing and

encouraging members of local

emergency planning committees

(LEPCs), state emergency response

committees (SERCs), or local fire

departments to allow members of the

public to read, but not remove or

mechanically copy, paper copies of

OCA information for all of the covered

facilities in the LEPC’s jurisdiction and

for any facilities whose vulnerable zone

extended into the LEPC’s jurisdiction.

To further supplement public access,

under the proposed rule, EPA would

make available to the public additional

information on chemical accident risk

through an Internet website. The

proposal also addressed how EPA

would provide access to OCA

information to federal, state, and local

government officials for their ‘‘official

use’’ by codifying the provisions of

CSISSFRRA that appear in CAA section

112(r)(7)(H)(ii)(II)(cc)–(ee). Finally, the

proposal called for establishing further

provisions as needed to implement

CSISSFRRA, such as prohibiting the

unauthorized release of OCA

information and authorizing the

Administrator to provide OCA

information to qualified researchers

under CAA section 112(r)(7)(H)(vii).

II. Discussion of Comments on the

Proposed Rule

The proposed rule was published for

comment in the Federal Register on

April 27, 2000. The comment period

ended on June 8, with 68 comments

48110 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

submitted. Commentors represented

industry, trade associations, public

interest groups, journalists,

environmental groups, law enforcement,

emergency response groups, state/local

entities, and the general public. In

addition, on May 9, 2000, EPA and DOJ

held a public hearing on the proposed

rule at which nine presenters

representing public interest groups,

environmental research groups, state

and local emergency planning groups,

and the general public provided

comments about the proposed

regulation. We are responding to most

comments on the proposed rule in this

preamble. We respond to additional

comments in a supplemental document

included in the public docket for this

rulemaking.

A. Risk and Benefits Assessments

As noted above, the assessments were

available on the EPA and DOJ websites.

We received comments on both the

benefits assessment and the risk

assessment expressing a wide range of

opinion. We note at the outset that

CSISSFRRA did not call for the

assessments to be developed through a

public rulemaking process (see CAA

section 112(r)(7)(H)(ii)). Instead,

CSISSFRRA required the President to

conduct the assessments and then,

‘‘based on the assessments,’’ to

promulgate regulations governing the

distribution of OCA information. In

requiring regulations, CSISSFRRA

ensured the public an opportunity to

participate in the government’s

consideration of the extent to which and

the manner in which OCA information

should be made available based on the

assessments. Preparation of the risk

assessment, however, necessarily called

for the exercise of expert judgment in

sensitive areas of law enforcement and

national security, areas in which the

President is typically accorded broad

discretion. We thus believe that

Congress did not intend the assessments

to be subject to public evaluation except

to the extent they do, or do not,

adequately support the rule being

promulgated. We nonetheless appreciate

the careful consideration that the

assessments received from the public

and respond below to the significant

concerns that were raised.

In regard to the approach taken by

both assessments, several commentors

asserted that the assessments were

fundamentally flawed because they

failed to quantify the risk and benefit of

disseminating OCA information. EPA

and DOJ disagree with that comment.

Given the short time frame the agencies

had to develop the assessments and lack

of a clear basis for estimating the

probability of a chemical accident or

criminal incident involving an

industrial facility, it would have been

difficult, if not impossible, to obtain or

develop sufficient data to support such

an analysis. To begin with, since OCA

information is not yet publicly

available, its effect on the risk and

benefits to be assessed cannot be

measured directly. In addition, because

the RMP program took effect only last

year and trends in terrorism are

changing, there is little other data

regarding the precise issues that the

assessments were required to address.

Furthermore, EPA and DOJ believe

that statistical evaluation of the benefits

and costs relating to the release of OCA

information on the Internet was not

necessary to determine how OCA

information should be disseminated,

which is the purpose of this rulemaking

exercise. In the benefits assessment, an

analysis of the effect of public release of

Toxic Release Inventory (TRI) data

indicated that information

dissemination leads to further risk

reduction efforts. In the risk assessment,

an analysis was conducted of trends

related to weapons of mass destruction

and recent terrorist events. Each

assessment used those analyses as the

basis for assessing the benefits and risks

related to dissemination of OCA

information. The findings that resulted

from those analyses informed the rule.

We believe that that methodology was

appropriate for purposes of determining

how best to disseminate OCA

information.

1. Benefits Assessment

As noted above, the reaction to the

benefits assessment was mixed. Many

commentors agreed with the

conclusions regarding the benefits of

public disclosure of OCA information.

Other commentors took issue with some

of the assessment’s findings.

Several commentors contended that

there was no basis for drawing an

analogy between the TRI program

experience and what might be expected

for OCA information because TRI data

records are based on anticipated lawful

releases, derived from estimates or

actual measurements, while OCA

information is based on hypothetical,

unanticipated releases. We disagree that

an analogy between TRI data and OCA

information is inappropriate. As noted

in the benefits assessment, although TRI

data represent actual releases while

OCA information represents

hypothetical releases, our reason for

examining the TRI program experience

was the fact that TRI data are made

publicly available in an easily used and

understood format. The assessment

noted a correlation between the ready

accessibility of TRI data and the

extensive use made of it by community

and environmental groups, the news

media, state and local governments, and

industry, and concluded that a similar

correlation might reasonably be

expected from the dissemination of

OCA information.

Some commentors disagreed with the

benefits assessment’s contentions that

the publication of TRI data contributed

to reductions in TRI emissions. They

attributed TRI emissions reductions

mainly to economic incentives,

technical considerations, and CAA

regulatory programs. The commentors

were also critical of the methodology

and the conceptual and statistical

support for the assessment’s analysis of

the effect of negative media attention on

TRI emissions reductions. They

criticized, for example, the assessment’s

focus on the ‘‘worst polluting’’ facilities

selected by EPA. They took issue with

comparisons between large facilities

with correspondingly large releases to

small facilities with small releases, and

comparisons between supposedly

similar facilities that may have differed

in terms of process or industry

classification. They questioned,

moreover, whether the analysis

captured the full range of TRI data

available beginning in 1987. Based on

those criticisms, the commentors

viewed the TRI analogy as an invalid

basis for the benefits assessment’s

conclusion that wide public access to

OCA information would help reduce the

risk of chemical accidents.

As the assessment noted several

times, a number of different factors

contributed to TRI emissions

reductions. Nonetheless, according to

the literature reviewed for the

assessment, the interest in TRI data—

either in the form of published reports,

negative press accounts, or the

publication of TRI data by a company—

was one of the factors affecting TRI

emissions reductions. As explained in

Appendix D of the assessment, the

media relied on total emissions data to

label certain facilities as the ‘‘worst

polluters.’’ EPA compared the total TRI

emissions reduction rates of those

‘‘worst polluting’’ facilities with the

overall TRI emissions reduction rates for

all other facilities (both large and small)

since TRI data were first published in

1989 (which includes data collected in

1987 and 1988). The ‘‘worst polluting’’

facilities featured in news accounts

appeared to have reduced their

emissions significantly more than did

the other facilities. EPA also compared

‘‘worst polluting’’ facilities to others

listed under the same TRI industry

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48111

classification because facilities in the

same industry classification were likely

to have similar processes. EPA

recognizes that within a single industry

classification there could be differences

in chemical processes that might

account for some of the differences in

TRI emissions. Those variations,

however, would not affect the results of

the assessment’s comparative analysis of

TRI emissions reduction rates for

facilities that were subject to significant

negative publicity and those that were

not. As indicated in Appendix D,

moreover, even the reduction rates of

facilities with relatively low levels of

emissions that were the subject of

negative press accounts were

significantly greater than those of other

facilities not subject to negative

publicity. In light of that evidence, we

continue to believe that if OCA

information, like TRI data, were made

publicly available in an easily

understood format, there would be

increased public understanding and

dialogue about accidental release risk

and risk reduction. We further believe

that the resulting public pressure could

lead to the adoption of additional risk

reduction measures.

Other commentors contended that the

benefits assessment should not use the

term ‘‘risk reduction’’ when referring to

the TRI program since TRI data does not

communicate ‘‘risk,’’ which is often

understood to be the consequence of an

event multiplied by the probability that

the event will occur. They also

questioned whether the OCA

information has value for risk reduction.

As the benefits assessment explained in

detail in Chapter 6, however, OCA

information by itself does not

communicate risk; rather, OCA

information in context and in

comparison with other information can

provide insights about risk. As stated in

Chapter 6, ‘‘[F]rom this comparison and

understanding of potential risk,

unacceptable risks can be reduced.

* * *’’

Several commentors also claimed that

the assessment’s figures for the costs of

chemical accidents were outdated and

likely overstated because they did not

take into account the significant risk

reduction benefits of the RMP rule.

They suggested, for example, that many

companies reduced their inventories of

hazardous chemicals in order to avoid

being subject to the RMP rule. We

believe that the costs of chemical

accidents reported in the benefits

assessment are based on the most

current accurate data available. Some of

the data come from the RMP five-year

accident histories—data provided by the

RMP facilities themselves.

We recognize that before RMPs were

required, many responsible chemical

facility owners and operators were

aware of the need for chemical accident

prevention as the result of efforts by a

variety of organizations, including the

Center for Chemical Process Safety, the

American Chemistry Council (formerly

the Chemical Manufacturers

Association) via the Responsible CareTM

program, the Occupational Safety and

Health Administration, and others. The

objective of the benefits assessment was

not to quantify the cumulative impact of

voluntary process safety initiatives or of

the 1996 RMP rule. Instead, as required

by CSISSFRRA, the focus of the

assessment was to evaluate the nature

and extent of risk reduction benefits that

would likely occur if OCA information

were widely available and easily

accessible to the public. We remain

convinced that the assessment correctly

concluded that readily available, easily

accessible and interpreted OCA

information, in combination with RMP

information, would stimulate public

dialogue about chemical risks and

would result in at least some of the

15,000 covered facilities implementing

additional risk reduction measures.

Lastly, several commentors asserted

that the benefits assessment overstated

the importance of OCA information and

underestimated the value of the data

already released in executive summaries

or available through local sources of risk

information. The benefits assessment

acknowledged that many facilities have

provided OCA data in their executive

summaries, and that individuals with

sufficient effort and know-how could

generate their own offsite consequence

data from publicly available

information. In fact, some organizations

have already published their own

databases of ‘‘worst-case’’ scenarios

based upon data less accurate than OCA

information. However, the assessment

also noted that the amount of OCA data

included in executive summaries varies

widely, and that OCA data in executive

summaries cannot be easily sorted or

compared. In addition, OCA results

prepared by those outside the company

are often erroneous because they are

based on incomplete or inaccurate

information. The OCA information in an

RMP is generated by the company

submitting it, and takes into account

site-specific information; consequently,

the OCA information portions of RMPs

contain the most reliable data for

comparison purposes and for

understanding risks. The assessment

made clear, however, that OCA

information for a single facility is of

limited value, and is far more useful

when evaluated in the context of the

facility’s entire RMP, and compared to

OCA information reported by similar

facilities or by facilities handling similar

chemicals.

2. Risk Assessment

Like the benefits assessment, the risk

assessment prompted a range of

comments. Some commentors generally

agreed with its conclusions. Others,

citing DOJ’s expertise, deferred to the

assessment’s findings, but urged DOJ to

consider additional risks. In contrast,

some commentors claimed that the

assessment’s conclusions were

overstated in light of the availability of

data comparable to OCA information or

that it failed to consider factors that

would reduce the risk assessed.

Some commentors expressed concern

that the risk assessment understated the

security concerns posed by the

dissemination of OCA information.

Some of those commentors asserted that

the assessment should have considered

the potential danger that OCA

information could be disseminated by

persons taking handwritten notes that

could be posted on the Internet. In fact,

the risk assessment addressed that

potential risk. While the assessment

recognized that dissemination of

handwritten notes was cause for

concern, it concluded that the risk

posed by that was less than that posed

by release of government documents

containing OCA information.

Handwritten notes would not carry the

same presumption of accuracy and

reliability generally associated with

government documents. Handwritten

notes also would require significant

time and effort to transcribe, making

them less likely to be used for purposes

of creating a large electronic OCA

database that could be posted on the

Internet.

Other commentors stated that the risk

assessment did not discuss other

potential risks associated with the

release of OCA information, such as

exploitation of the data for purposes of

conducting industrial espionage or

locating precursor chemicals for

purposes of creating illicit drugs. We

note, however, that CSISSFRRA requires

the risk assessment to weigh whether

posting OCA information on the Internet

would increase the risk of criminallycaused chemical releases. While the

release of OCA information may pose

other risks as well, we did not, and,

given time constraints, could not, assess

those risks.

By contrast, a number of commentors

asserted that the assessment overstated

or mischaracterized the risk posed by

the dissemination of OCA information.

48112 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

Those commentors made several points.

First, one stated that the assessment did

not discuss the ‘‘increased risk’’ posed

by dissemination of OCA information

on the Internet (quoting CAA section

112(r)(7)(H)(ii)(I)(aa)). Rather, the

commentor offered, it merely concluded

that OCA information would be helpful

to a terrorist or criminal. In fact,

however, the risk assessment did

address the issue of ‘‘increased risk,’’ as

required by CSISSFRRA. It concluded

that OCA information would provide

someone seeking to target or maximize

an industrial chemical release with

helpful information that is not currently

available, and, therefore, that posting

OCA information on the Internet would

increase the risk of a terrorist using the

information for that purpose.

Other commentors argued that

information identical or similar to OCA

information is already publicly

available, and, therefore, the risk

assessment overstated the risk posed by

posting OCA information on the

Internet. The risk assessment

acknowledged that some items of OCA

information and information

comparable to OCA information are

currently available to the public.

However, the risk assessment also found

that the items of OCA information most

likely to be used by a terrorist to plan

or execute an attack (e.g., the distance

to endpoint, the population within the

distance to endpoint, and public and

environmental receptors affected) have

not been assembled into a publicly

available resource that would be as

comprehensive and accessible as OCA

information would be if posted on the

Internet, particularly in its database

form. While several commentors noted

that RMP executive summaries are

currently available on the Internet, both

the risk and benefits assessments found

that the quantity and quality of OCA

data contained in the posted executive

summaries vary considerably. Some

executive summaries include all of the

OCA data elements while others include

little or none. Consequently, OCA data

that have been released through the

executive summaries do not constitute a

comprehensive collection of OCA

information. Moreover, OCA data

included in the executive summaries

cannot be electronically searched in a

manner that would allow the sort of

comparisons among RMP facilities that

would facilitate targeting. The risk

assessment thus reasonably concluded

that full publication of OCA information

on the Internet would pose a

significantly greater risk than that

currently posed by the public

availability of executive summaries and

other information, even though

executive summaries have been posted

on the Internet.

Similarly, some commentors

questioned the risk posed by OCA

information, since data similar to OCA

information could be calculated using

publicly available sources of

information. The risk assessment found

that calculating information like OCA

information using available sources of

data would be possible but would

require significant effort and know-how.

To date, no comprehensive collection of

data on the off-site consequences of

chemical releases is available on the

Internet. To the extent that EPCRA

information is available on the Internet,

the risk assessment found that such

information does not pose the same

degree of risk as would OCA

information because EPCRA information

does not furnish the type of targeting

data (such as the distance a chemical

release would travel and the population

that lives within that area) that could be

used to plan terrorist events.

Furthermore, the assessment found that

some publicly available information

similar to the key items of OCA

information is only available through

SERCs and LEPCs, and is not Internetaccessible. The risk assessment found

that the ability to access information

anonymously posed significant security

concerns and that, for information

attainable only through personal

contact, for example, by contacting a

SERC or LEPC, there is less of a risk that

the information would be misused by

criminals, who typically avoid such

contact in executing their plans. Thus,

to the extent that information similar to

OCA information is currently available,

it can be obtained only through means

that do not pose a risk comparable to

that which would be created by Internet

access to OCA information.

Another commentor maintained that

OCA information has already entered

the public domain because every

covered facility in its state had held the

public meeting required by CSISSFRRA

section 4. That section specifies that

every covered facility must provide the

public with a summary of the OCA

portions of its RMPs at a meeting or in

a public notice no later than February 1,

2000. We do not believe, however, that

those meetings (and notices) provided

OCA information in a way that presents

a significant risk. Facilities were

required to share only a summary of

their OCA information, and facilities

were free to do so in various ways,

making it unlikely that the information

they shared with the public was

sufficiently detailed or uniform to make

it easy to assemble and distribute over

the Internet. Also, the meetings were a

one-time requirement and thus are not

an ongoing source of OCA information.

Several commentors questioned the

risk assessment’s conclusions regarding

the helpfulness of OCA information to

terrorists and criminals; they asserted

that it does not provide a ‘‘roadmap’’ for

terrorists and that it fails to provide all

of the information that a terrorist would

need to conduct an attack. The risk

assessment, however, did not claim that

OCA information provides a

comprehensive ‘‘how-to’’ manual for

attacks on chemical facilities. Nor did it

claim that OCA information provides all

of the information that would be sought

by someone seeking to cause an

intentional chemical release. Rather, the

risk assessment found that OCA

information supplies some pieces of

information that would be useful to

someone seeking to target or maximize

an industrial chemical release. The risk

assessment noted that information such

as the population that could be affected,

the distance that a plume of chemical

could radiate, and the types of buildings

and landmarks in the local area are

precisely the type of information that

would be of interest to a terrorist

seeking to maximize the effect of an

industrial chemical attack. Thus, even if

OCA information does not provide a

‘‘roadmap’’ for terrorists or all of the

necessary information for an attack, it

still provides crucial pieces of

information that would increase the risk

of terrorist or other criminal activity.

A few commentors argued that several

of the examples cited in the risk

assessment were irrelevant to whether

terrorists or criminals in the United

States might seek to cause an industrial

chemical release. In particular, those

commentors considered irrelevant the

examples of chemical releases that

occurred in Bosnia and the incidents

involving criminals in the United States

who had personal knowledge of the

industrial facilities they targeted. We

disagree. Those incidents were included

in the risk assessment because they

establish specific, important points

relevant to the risk assessment. The

examples in Bosnia demonstrate that it

is in fact possible to cause large-scale

chemical releases using explosives or

other means; and the two criminal

incidents that occurred in the United

States demonstrate that criminals in this

country have indeed considered using—

although they have not successfully

caused—chemical releases to inflict

mass casualties.

Lastly, two commentors asserted that

the risk assessment should have taken

into account the risk reduction that

would be achieved by informing the

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48113

community of OCA information. We

agree that the dissemination of OCA

information can assist the community in

preventing, preparing for, and

responding to chemical releases,

regardless of how they are caused, and

thereby may mitigate the damage that

such releases could cause. However,

that point does not contradict the risk

assessment’s finding that the release of

OCA information on the Internet would

increase the risk of an intentional

chemical release or other related

criminal conduct. Moreover, while the

benefits assessment concluded that

public release of OCA information

would likely result in a significant

reduction in chemical risk, it did not

find that the reduction in risk would

offset the increase in risk that would

accompany Internet dissemination of

OCA information. As explained above,

we do not have sufficient data to

estimate the number of lives that could

be lost or saved by various approaches

to the dissemination of OCA

information. But we are concerned that

terrorists or criminals would use

anonymous Internet access to OCA

information to maximize the effects of a

release, and that those effects are likely

to be large compared to the effects of

unintentional releases. Moreover, it will

take time for the public release of OCA

information to create the incentives that

will in turn lead to risk reduction. The

increased risk created by Internet

dissemination of OCA information, by

contrast, would be immediate. For those

reasons, we do not believe that

unfettered release of OCA information

would achieve the statutory objective of

minimizing the risks of chemical

releases, however caused.

3. The Assessments and the Proposed

Rule

We received a number of comments

related to the assessments and their role

in informing the proposed rule. Some

commentors believed that the proposed

rule appropriately balanced the findings

of the assessments. Those commentors

noted the tension between the concerns

raised in the assessments, but offered

that the proposed rule represented a

reasonable accommodation of those

concerns. Others asserted that the

conclusions of the risk assessment were

given too much weight in view of the

evidence presented, or that the

conclusions of the benefits assessment

were given too little weight.

One commentor noted that while the

benefits assessment chronicled actual,

significant damages from accidental

releases in terms of casualties,

evacuations, and property damage, the

risk assessment did not cite a successful

terrorist attack on an industrial facility

in the United States. The commentor

was thus concerned that the proposed

rule ignored the ‘‘very real risks’’ of

chemical accidents in favor of what the

commentor characterized as ‘‘greatly

exaggerated fears of the unknown.’’

While there have thankfully been no

successful terrorist or criminal chemical

releases in the United States (although

there have been several abroad), the risk

assessment discussed two recent plots

to cause chemical releases that were

thwarted by law enforcement. As the

risk assessment also pointed out, it is

important to recognize that the

consequences of an intentional release

could be devastating. A chemical release

intended and designed to cause

maximum damage to property and life—

as terrorist events increasingly are—

would have dire consequences. The fact

that an intentional release has not yet

occurred in the United States does not

mean that the risk of such an incident

should be discounted or ignored. Nor

does it mean that steps to prevent such

an incident should not be taken. As the

risk assessment concluded, trends

suggest that the odds of such an event

are increasing. The rule recognizes that

fact and balances that concern with the

benefits to be gained from providing the

public with access to OCA information.

Similarly, one commentor asserted

that the proposed rule sought to

eliminate the risk associated with

posting OCA information on the Internet

rather than balancing that risk with the

incentives for risk reduction that would

be created by making the information

available to the public. We disagree.

CSISSFRRA requires the government to

promulgate a regulation that

‘‘minimizes’’ the likelihood of

accidental and intentional releases

based upon the findings of the risk and

benefits assessments. The proposed rule

was designed to do so. It would not

have eliminated all the risks cited by the

risk assessment. To further reduce the

risk, the proposal could have called for

any member of the public to have access

to OCA information for no more than

one facility per month or even per year,

or could have made reading rooms less

numerous. Instead, the proposal called

for any member of the public to obtain

OCA information for up to 10 facilities

per month at the 50 or more reading

rooms across the country. It also called

for an Internet-based risk indicator

system to stimulate the public’s interest

in OCA information and the potential

for risk reduction. The proposed rule

thus was an attempt to minimize the

risk of chemical releases, however

caused, by providing the public with

access to OCA information while

establishing safeguards intended to

discourage criminal use of the

information.

Several commentors asserted that the

proposed rule was ‘‘arbitrary and

capricious’’ because it failed to make a

rational connection between the facts

found in the benefits assessment and the

decisions made in regard to the rule. In

particular, the commentors pointed to

the benefits assessment’s findings that

the public will use information to

reduce risks to the extent the

information is easy to access,

understandable, and in a format that

facilitates comparison and analysis.

They claimed that the proposed rule

would make OCA information difficult

to obtain. They argued that the proposed

restrictions would thus undermine the

potential benefits of releasing OCA

information, and that EPA and DOJ

essentially disregarded the benefits

assessment’s findings.

We agree that there must be a rational

connection between the regulatory

limitations established in this

rulemaking and the findings in the

benefits and risk assessments. However,

the final rule should not, and cannot,

respond to each of the assessments’

findings standing alone. CSISSFRRA

requires the final regulations to govern

the distribution of OCA information in

a manner that ‘‘minimizes the

likelihood of accidental releases and the

[increased risk of terrorist and other

criminal activity associated with the

posting of OCA information on the

Internet] and the likelihood of harm to

public health and welfare,’’ in light of

the assessments. To meet that

requirement, the findings of both

assessments must be considered to

determine how best to distribute OCA

information in a way that reduces the

risk to public health and welfare of

chemical releases, however caused. We

believe the final rule is informed by the

findings of both the benefits and the risk

assessments.

Another commentor asserted that EPA

and DOJ’s justification for withholding

OCA information from the Internet is

‘‘unique and arbitrary.’’ The commentor

argued that, if posting OCA information

on the Internet is unacceptably

dangerous due to the assistance it could

give a terrorist in identifying a potential

target and planning an attack, then

many other types of information on the

Internet could be seen as equally

dangerous, such as baseball schedules

and stadium seating capacities. The

commentor explained that a terrorist

could use that information to determine

potential casualty figures for a planned

attack during a game.

48114 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

This criticism misinterprets the basis

of our concern about OCA information.

The risk assessment found evidence that

terrorists are increasingly interested in

using weapons of mass destruction

(WMD) and that chemical releases can

be triggered from an industrial facility,

thereby converting that facility into a

WMD. Based in part on that evidence,

the assessment concluded that posting

OCA information on the Internet would

increase the risk of terrorists or

criminals targeting chemical facilities

for attack. OCA information provides

data that is qualitatively superior to the

sort of information cited by the

commentor. In particular, OCA

information includes the number of

people, the size of the area, and the

types of buildings and landmarks that

could be affected by a chemical release.

As the assessment emphasizes, that is

precisely the type of information that

terrorists seek for purposes of planning

an attack. Stadium seating capacities

and schedules, by contrast, provide

information only about the number of

people that could be affected. For those

reasons, EPA and DOJ conclude that the

release of some items of OCA

information presents a terrorism risk

that warrants their exclusion from the

Internet. Moreover, the fact that

chemical facilities, as opposed to

baseball stadiums and many other

places where the public congregates, are

themselves potential WMD, makes clear

that there is heightened risk in making

OCA information easily available to

terrorists or other criminals.

We also received a comment that the

proposed rule makes OCA information

more difficult to access than

information currently reported under

EPCRA section 312, even though the

benefits assessment found that EPCRA

section 312 information was not widely

used because it was difficult to obtain.

However, the commentor did not

correctly characterize the benefits

assessment’s findings. The benefits

assessment found that several reasons

account for the infrequent use of EPCRA

section 312 information. First, the

public is not aware of the availability of

the EPCRA information because limited

resources have allowed only about half

of the SERCs and LEPCs to publicize its

availability. Second, the effort required

by members of the public to locate their

SERC or LEPC and request that

information has been a disincentive.

Lastly, EPCRA data is not in a format

that is easily understood by the public.

As will be described in more detail

later, under the final rule, the public

will more likely be aware of OCA

information and have the means to

access and understand it. First, the

EPA’s website on the Internet—a widely

accessible medium—will inform the

public of the existence and availability

of OCA information. Second, the

website will provide contact

information and instructions for

obtaining access to OCA information, so

members of the public will not have to

locate that information for themselves.

Third, OCA information will be

accessible from more sources than is

EPCRA section 312 information; while

EPCRA section 312 information is

available only through SERCs and

LEPCs, OCA information will be

available through federal reading rooms,

as well as through SERCs, LEPCs, and

other related state and local agencies

that opt to provide access to local OCA

information, as described in more detail

later. Fourth, some OCA information

will be readily accessible on the

Internet. Finally, the public is more apt

to use OCA information because it is

easier to comprehend than is the EPCRA

section 312 data. OCA information does

not require calculations or analysis to

determine the potential consequences of

potential releases; it communicates that

information directly and is designed to

allow easy comparisons among RMP

facilities.

B. General Comments on the Rule

We received comments raising a

variety of general or overarching

concerns with the proposed rule. One

commentor asserted that the proposed

rule does not further right-to-know

efforts. Other commentors argued that

terrorists will be able to get OCA

information while the proposed rule’s

restrictions on OCA information will

only harm the public. As stated above,

DOJ and EPA agree that the public’s

right-to-know is an important element

in the reduction of accidental releases

and that risk reduction benefits will

flow from the public’s access to OCA

information. Accordingly, the proposed

rule provided the public with multiple

avenues for obtaining access to OCA

information, including federal reading

rooms, LEPCs, SERCs, and fire

departments that opt to provide readonly access. It also provided the public

with hazard information through a risk

indicator system and clarified that state

and local government officials, as well

as federal officials, can communicate

the substance of OCA information to the

public as long as they do not release the

restricted forms of that information.

While the proposed rule would not have

permitted unfettered release of OCA

information, it would have provided for

dissemination of OCA information in

ways that are consistent with right-toknow efforts and would have allowed

the public and industry to better prevent

and prepare for chemical releases,

whether or not intentionally caused. As

explained further in this preamble, the

final rule adopts and improves on those

public access provisions.

One commentor argued that the

proposed system for providing the

public with access to OCA information

would undermine the utility of the

CAA’s citizen suit enforcement

provision by denying members of the

public the information they need to

prosecute such suits. But as noted

above, the system would not deny

public access to OCA information, only

control it. Federal, state, and local

reading rooms, and the Internet would

all be potential outlets for the

information. As described later, we have

also sought to improve the proposed

system’s ability to assure reasonable

access to OCA information by all

members of the public.

One commentor expressed concern

that the proposed regulation would

‘‘disenfranchise’’ U.S. citizens located

outside the country by withholding

access to OCA information from them.

The basis for that concern was our

proposal to define ‘‘member of the

public or person’’ as an individual

located in the United States. We did not

intend to withhold access to OCA

information from any U.S. citizen.

Rather, we intended only to limit our

reading room obligation to establishing

rooms in the United States, where the

vast majority of persons affected by

RMP facilities are located. Given the

resource implications of establishing

federal reading rooms, we considered it

appropriate to commit to locating at

least 50 rooms in the United States and

retain discretion to locate more

elsewhere. We continue to believe that

that is the appropriate course to take.

As described later, we are developing

an approach to operating reading rooms

that will give us flexibility in where we

locate them; to the extent we learn that

there is demand for reading room access

by U.S. citizens abroad, we will

consider providing reading room access

in appropriate locations. Nonetheless,

we realize that the definition of

‘‘member of the public or person’’ need

not be limited in the way proposed to

accomplish our objective. The reading

room provision of the rule itself

specifies that the required reading

rooms be located across the United

States. Moreover, we realize that the

proposed definition would have been

problematic for some other rule

provisions that used the terms ‘‘public’’

or ‘‘person.’’ We have thus deleted the

phrase ‘‘located in the United States’’

from the definition. At the same time,

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48115

we have revised the rule provision

calling for a system that indicates

whether an address is within a facility’s

vulnerable zone so that our obligation

extends only to persons located within

any state (defined to include the 50

states, the District of Columbia, and U.S.

territories). The vast majority of persons

affected by vulnerable zones are within

a state, and we consider it reasonable

and prudent to limit our obligation in

order to limit the potential impact of

that obligation on our resources. We

expect, however, to answer inquiries

from persons located outside the U.S.

unless those inquiries become

voluminous.

Several commentors voiced concern

that, without ready access to OCA

information, the public would be unable

to hold EPA accountable for the

effectiveness of the RMP program. We

disagree. We do not believe that changes

over time in any single set of data (e.g.,

distance to endpoint) are sufficient to

measure the effects of the RMP program

on a facility’s practices. Differences in

OCA data may reflect differences in

assumptions and models used in

conducting the analysis. Other RMP

information, including accident

histories and information about

prevention and response programs,

offers a more comprehensive basis for

measuring a facility’s progress or

comparing facilities’ safety practices.

Moreover, RMP information except for

OCA information is already available on

the Internet. Consequently, there is

already a wealth of information that an

individual can use to determine the

compliance status of an individual

facility, even without the additional

OCA information offered by the

proposed rule. We thus believe that the

ready access to that information

sufficiently enables interested

individuals to evaluate the effectiveness

of the RMP program.

One commentor claimed that the

proposed rule distorted the notion of a

‘‘public record’’ because the proposed

rule would not allow publicly released

OCA information to be copied or carried

away from reading rooms. The

commentor noted that the proposal

treated OCA information as ‘‘public’’ in

the setting of the reading rooms but

prohibited it from release to the public

in the context of the Internet. We find

that the proposal’s treatment of OCA

information is consistent with

CSISSFRRA’s statutory framework.

Congress anticipated that OCA

information in different forms could be

disseminated differently; under

CSISSFRRA the government is required

to provide the public with access to

paper copies of OCA information in

limited quantities, and in addition the

government is required to assess

whether and how to provide OCA

information on the Internet (CAA

section 112(r)(7)(H)(ii)(II)). Thus, the

proposed rule’s approach to

dissemination of OCA information was

well within the scheme contemplated

by the CSISSFRRA.

We received a comment that the

proposed rule is illogical because it

tracks members of the public who

review OCA information at federal

reading rooms but allows companies to

release OCA information to the public

without restriction. Both of those

aspects of the proposed rule, however,

flow from the statute itself. First, CAA

section 112(r)(7)(H)(ii)(II)(aa) specifies

that the final rule must provide access

to paper copies of OCA information for

a ‘‘limited number’’ of facilities. The

only way the government can

implement the ‘‘limited number’’

provision is to limit the number of

facilities for which an individual can

receive access to OCA information.

Second, CAA section 112(r)(7)(H)(v)(III)

contemplates that facilities will release

their OCA information to the public if

they so choose. It provides that the

statute’s restrictions on dissemination of

OCA information do not apply to

information released without restriction

by facilities, and it requires facilities

that provide OCA information to the

public under those terms to notify the

Administrator, who is directed to

maintain a public list of such facilities.

Congress thus clearly intended to allow

facilities to release their OCA

information as they consider

appropriate. Congress’ approach to

facilities’ release of their own

information does not conflict with the

concern expressed in the risk

assessment that large quantities of OCA

information would be disseminated in a

searchable format on the Internet.

Individual facilities separately releasing

their OCA information does not

significantly raise that concern.

Relatedly, one commentor asserted

that the federal government should

provide access to OCA information that

facilities release without restriction. As

noted above, CSISSFRRA requires EPA

to make publicly available a list of the

facilities that have notified EPA that

they have released their OCA

information without restriction.

Approximately 1,000 facilities have

notified EPA, and EPA has made a list

of those facilities available on its

website. That list will enable members

of the public to obtain OCA information

from those facilities. At the same time,

CSISSFRRA does not require that EPA

and DOJ make publicly available the

OCA information released by listed

facilities. Neither EPA nor DOJ will

provide the OCA information merely

because it has been released by the

listed facilities, for the security reasons

cited above.

Several commentors asserted that

even greater restrictions should have

been proposed because the rule would

not stop OCA information from being

hand-copied and posted on the Internet.

We do not believe Congress intended for

us to prevent members of the public

from hand-copying the OCA data that

they view. CAA section

112(r)(7)(H)(ii)(II)(aa) guarantees the

public ‘‘access’’ to paper copies of OCA

information for at least a limited

number of facilities, and the utility of

‘‘access’’ would be greatly diminished if

the public had to rely on memory alone

to recall that information. Also, CAA

section 112(r)(7)(H)(viii) expressly

precludes mechanical and electronic

copying of the electronic OCA

information made available under that

provision. It is silent with regard to

copying by hand. The fact that Congress

expressly precluded mechanical and

electronic copies suggests that it was

aware of the problem of copying and

made an affirmative decision to prohibit

only certain forms of copying. We thus

believe that Congress’ silence with

regard to copying by hand is properly

interpreted to mean that hand copies are

to be permissible.

Another commentor claimed that the

best manner of determining whether the

proposed rule provided adequate public

access to OCA information compared to

other alternatives was to give the full

RMP database to qualified researchers

so that they could use it to conduct a

peer review analysis of the proposal.

CSISSFRRA mandates that the means of

disseminating paper copies of OCA

information be based upon assessments

conducted by the government; it does

not appear to contemplate the sort of

peer review process that the commentor

proposed. Further, it is unlikely that the

short time frame provided by the statute

would have allowed for such a process.

Moreover, we do not believe that the

commentor’s method of assessing the

various alternatives for providing the

public with access to OCA information

would be preferable to the method of

analysis that we conducted through our

assessments. We agree, however, that

there are public benefits to providing

qualified researchers with access to

OCA information. CSISSFRRA does not

require that this rulemaking establish a

means of doing so, but we are working

on devising and implementing a system

for giving qualified researchers access to

48116 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

OCA information, as required by CAA

section 112(r)(7)(H)(vii).

One commentor asserted that it was

unnecessary for the public to receive

information about facilities outside their

communities, and that a facility’s OCA

information should only be available to

members of the community in which it

is located. Such an approach, however,

would be inconsistent with CSISSFRRA

and the findings of the benefits

assessment. CAA section

112(r)(7)(H)(ii)(II)(aa) expressly

guarantees access to paper copies of

OCA information for a limited number

of facilities ‘‘located anywhere in the

United States, without any geographical

restriction.’’ The benefits assessment

also notes that a person interested in

assessing a local facility’s safety

practices may find it useful to compare

that facility’s OCA information with that

of similar facilities located elsewhere.

Some commentors suggested that the

creation of 50 federal reading rooms, or

approximately one per state, has

environmental justice implications. The

Environmental Justice Executive Order

(Exec. Order No. 12898, 59 FR 7629

(1994)) requires that each federal agency

conduct all activities affecting the

environment or human health in a

manner that does not discriminate by

race, color, or national origin, and

address, as appropriate, any

disproportionately high and adverse

human health or environmental effects

on minority and low-income

populations. Executive Order 12898 also

encourages agencies to work to ensure

that public documents relating to

human health and the environment are

readily accessible to the public. We

believe that our approach, including

various means of access in addition to

federal reading rooms, will not have a

disparate impact upon minority groups

or low-income groups. As discussed

below, we are committed to providing

reasonable access to everyone seeking to

view OCA information and have made

changes to the rule reflecting that

intention. We expect that the vast

majority of federal reading rooms will

be placed in urban areas with relatively

large minority and low-income

communities. Those locations will

provide practical access to OCA

information for those communities,

some of which have historically suffered

from a disproportionate environmental

hazard burden. The rule provides for

additional access to OCA information by

allowing state and local government

agencies to provide access under the

‘‘enhanced local access’’ section of the

rule. Also, the vulnerability zone

indicator system, which is accessible via

email, telephone, and U.S. mail, will

provide an individual with additional

data on some aspects of the risk

expressed by OCA information.

Some commentors also expressed

concern that little had been done to

involve minority and poor communities

in the development or public review of

the proposed rule, contrary to the

Environmental Justice Executive Order.

EPA and DOJ disagree. Especially in

light of the relatively short period of

time we had to conduct the risk and

benefits assessments, as well as to

propose and finalize this rule, we

believe that we provided a reasonable

opportunity for review of the proposed

rule by minority and poor communities

in compliance with that Executive

Order. The proposed rule outlining the

federal government’s policy was

published in the Federal Register and

available on the EPA website. In

addition, we provided additional notice

of the proposal by holding a public

hearing and providing individual

notification to thousands of individuals

across the country, including state and

local government agencies.

Another commentor faulted the

proposed rule for not acknowledging

Indian country, tribal governments, or

tribal equivalents of SERCs and LEPCs.

CSISSFRRA itself does not address

Indian country or tribes. It amends the

CAA, which defines ‘‘state’’ in a way

that does not include Indian country.

However, CAA section 301(d)

authorizes EPA to promulgate

regulations specifying those CAA

provisions for which it is appropriate to

treat Indian tribes as states. EPA has

promulgated that regulation (63 FR 7271

(Feb. 12, 1998)), which provides that

tribes can take delegation of programs

under CAA section 112, including the

RMP program, if EPA finds they meet

specified criteria. Thus, a tribe found to

meet those criteria may be treated as a

state and receive and disseminate OCA

information to the same extent and in

the same manner as any state under the

rule being promulgated.

C. Rule’s Impact on Risk Reduction

A number of commentors agreed that

the proposed rule generally provided for

public access to OCA information in a

way that would minimize the likelihood

and consequences of chemical releases,

however caused. Some of those

commentors noted that other

information available in RMPs, under

EPCRA or other programs, would, on

their own or in tandem with OCA

information, allow the public to learn

about and understand the hazards and

risks posed by chemical plants in their

communities. In contrast, some

commentors expressed concern that the

proposed rule would not minimize

overall risk, and even more

significantly, might increase overall risk

by making it too difficult for the public

to access OCA information that could be

used to reduce the likelihood of

accidents.

Some commentors argued that the

proposed rule would take away a risk

reduction tool without decreasing

existing dangers. We disagree with that

statement. The agencies did not propose

to ‘‘take away a risk reduction tool,’’

since there still would be public access

to OCA information. In order to reduce

the risk associated with Internet posting

of OCA information, the proposed rule

delineated procedures for obtaining

access to the information and

limitations on the amount of

information that could be obtained by

any member of the public. It provided

for access to up to 10 facilities’ OCA

information per individual per month,

access that would allow members of the

public in the vast majority of counties

to obtain information for local facilities

and a few additional facilities for a basis

for comparison. In addition, the

proposal in no way attempted to restrict

the use of that risk reduction tool once

obtained.

A few commentors argued that the

proposed rule encouraged secrecy,

which would breed incompetence and

complacency. While we agree that

secrecy can have such an effect, in this

case the public will have access to OCA

information, so facilities’ information

will be far from secret. In addition, other

RMP information currently available on

the Internet, including information

concerning facilities’ accident

prevention programs, provide important

information for assessing and comparing

facilities’ practices. Likewise, other

publicly available environmental

reports—such as those concerning

accidents reported under EPCRA and

the Comprehensive Environmental

Response, Compensation, and Liability

Act—are useful in evaluating a facility’s

safety practices. OCA information

provides a particularly simple way of

roughly assessing and comparing the

hazards facilities pose, but it is not the

only information capable of

communicating such hazards, as a

number of commentors pointed out.

Several commentors argued that, by

making OCA information difficult to

access, the proposed rule would force

the public to rely on government

officials for risk information without

being able to check the accuracy of that

information. Other commentors claimed

that the public might resort to other

forms of less reliable, more exaggerated

information that would make local risk

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48117

reduction efforts more difficult.

Relatedly, another commentor argued

that, to the extent other, more

exaggerated information is generated as

a substitute for OCA information,

terrorists and other criminals may be led

to believe that consequences of a release

would be greater, thereby increasing the

risk of a release. The fundamental

premise of those comments is that the

rule would render OCA information

inaccessible. We disagree. As mentioned

above, we are committed to making

OCA information reasonably available

to the public and have made changes in

the final rule to ensure such access.

Consequently, local and state

governments need not ask the public to

trust their representations but may

provide access to OCA information and

other information that the public may

use to verify government assertions

about the risk of chemical releases.

Several commentors asserted that the

proposed rule, in validating the idea

that public dissemination of OCA

information poses a risk, would have a

‘‘chilling effect’’ on local officials’

communication of OCA data, thus

curtailing accident prevention efforts

that result from public awareness and

pressure. We did not intend to create

such a chilling effect. Indeed, we

believe dialogue among government, the

public, and industry is essential to

further risk reduction efforts. As we

explained in the proposal, we have

attempted to address the concern about

CSISSFRRA’s perceived chilling effect

by explaining in the rule the ways in

which state and local government

agencies may legitimately disseminate

OCA information, or descriptions

thereof, to the public. In fact, the rule

encourages appropriate local and state

agencies to provide public access to

such information, which should counter

any inference to the contrary. Further, it

is worth reiterating that government

officials may be held criminally liable

only for ‘‘willful’’ violations of the

restrictions on OCA information

dissemination. In other words, the

government would be required to

demonstrate that the official knew his or

her actions to be unlawful. EPA and DOJ

moreover, will continue to provide

guidance to state and local covered

persons to explain the extent to which

they may lawfully disseminate OCA

information, or communicate the

substance of that information, under the

final rule.

Similarly, one commentor expressed

concern that the proposed rule might

discourage members of industry from

participating in SERCs and public

meetings at which OCA information is

discussed. In particular, the commentor

asserted that proposed section 1400.6(b)

could be interpreted to render it

unlawful for industry members serving

on SERCs to provide OCA information

for their facilities to the public, if those

facilities have not formally decided to

release that information. In many

instances, whether CSISSFRRA is

applicable will depend upon the context

in which OCA information is being

disseminated. For example, in the

instance cited by the commentor,

1400.6(b)’s restrictions on dissemination

apply only if the member of industry is

distributing OCA information to the

public in his or her capacity as a

representative of the SERC. In addition,

CSISSFRRA does not restrict his or her

ability to participate in public

discussions about OCA information; in

fact, CSISSFRRA section 4 anticipates

that members of industry will engage in

such discussions with the public.

Several commentors argued that, if

the rule makes public access to OCA

information difficult, it should

compensate for any resulting decrease

in risk reduction incentives by requiring

facilities to secure their sites and/or take

prescribed risk reduction steps, such as

reducing their inventory of dangerous

chemicals or substituting safer

chemicals to the extent feasible. Other

commentors disagreed, asserting that

requiring facilities to make themselves

secure from terrorist attacks or to take

other risk reduction measures would be

an inappropriate remedy for the risk

posed by broad release of OCA

information. To begin with, we note that

CSISSFRRA requires the final rule to

‘‘govern[] the distribution of [OCA]

information.’’ It does not call on the

government to decide whether to

impose further substantive requirements

on facilities to reduce the risk of

chemical releases, however caused. In

the short time available to conduct the

assessments and rulemaking on the

distribution of OCA information, it was

not possible for us to address the

broader policy, programmatic, and legal

issues posed by the commentors’

suggestion for additional regulatory

requirements. CSISSFRRA does,

however, include a requirement that

DOJ, in consultation with relevant

federal, state, and local agencies, as well

as members of industry and the public,

conduct studies to examine the issue of

site security at RMP facilities and the

extent to which the RMP rule effectively

addresses that issue. DOJ is working to

comply with that requirement. In the

meantime, EPA has issued a site

security alert informing industry of

various risks posed by criminal activity

related to chemical facilities.

D. Reading Rooms

1. General Comments on Reading Rooms

As indicated above, the proposed rule

called for providing the public with

access to paper copies of OCA

information through the creation of at

least 50 federal reading rooms

geographically distributed across the

United States. Several commentors

expressed concern that the costs of

creating federal reading rooms could

outweigh the benefits. Further, several

other commentors suggested that it

would be more appropriate for LEPCs,

SERCs and/or other local groups to be

the principal providers of OCA

information; some commentors also

urged EPA to help fund such efforts.

Some commentors recommended that

the reading room approach be

abandoned or scaled down out of

concern that reading rooms would not

adequately safeguard the OCA

information and could result in the

widespread dissemination of OCA

material. Other commentors questioned

whether federal reading rooms would

provide reasonable access, particularly

for people who live some distance from

reading rooms. Finally, other

commentors supported the federal

reading room approach but made

suggestions about how to make reading

rooms more effective and secure.

For the reasons discussed below, we

continue to believe that providing the

public with access to paper copies of

OCA information is best done through

reading rooms. We are developing an

implementation approach for federal

reading rooms that will allow read-only

access to OCA information in a

reasonably secure manner that is

convenient for the public and efficient

for the government. We do not believe

that existing federal statutes authorize

us to rely solely on LEPCs, SERCs, or

other state or local entities to provide

reading room access; requiring such

agencies to do so, moreover, might raise

constitutional concerns regarding the

appropriate relationship of federal and

state power. CSISSFRRA makes the

federal government responsible for

distributing OCA information.

Nevertheless, LEPCs, SERCs, and other

emergency prevention, planning, and

response agencies can play an important

part in facilitating public access to OCA

information, and the final rule being

promulgated encourages them to do so.

We also intend to provide assistance to

interested state and local agencies.

As for whether reading rooms can

provide reasonable access, we are

committed to establishing a network of

federal reading rooms and other

potential state and local outlets (further

48118 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

described below) that would ensure that

every member of the public has a

reasonable opportunity to obtain access

to OCA information. We believe that

federal reading rooms can and will be

an appropriate and cost-effective

mechanism for providing the required

public access to OCA information.

2. The Number of Paper Copies

We received a comment interpreting

the limit on the number of RMP

facilities for which an individual may

view paper copies of OCA information

as 10 per person per visit. Today’s

notice clarifies that the limit is 10 per

person per month, regardless of the

number of reading room visits a person

makes. Any person may visit a reading

room multiple times during a single

calendar month to view the OCA

information for the same 10 facilities. A

person may not visit multiple reading

rooms to view OCA information for

more than 10 different facilities in a

single month. We have changed the text

of the regulation to clarify that point.

We received many comments on what

the appropriate ‘‘limited number’’

should be. Some commentors expressed

concern that the proposed limit of 10

per month was too generous considering

the potential criminal use of that

information and suggested a lower

number, such as 10 per year. Several

commentors indicated that the proposed

limit of 10 was arbitrary, unreasonable,

and/or would hamper the goal of

providing the public with access to

paper copies of OCA information

because the proposed limit of 10 per

month would be insufficient for citizens

living or working in areas with high

concentrations of RMP reporting

facilities, or would hinder individuals

wishing to conduct nationwide

comparative research. Finally, some

commentors stated that the limit of 10

per month was appropriate.

Several commentors also raised issues

concerning the application of the 10 per

month limit. One commentor suggested

that the limit apply not to individuals

but to organizations, so that an

organization could not use its

employees or members to compile

collectively OCA information for more

than the prescribed ‘‘limited number’’ of

facilities. Another commentor argued

that members of the public have a

legitimate interest only in OCA

information for facilities in their

community, and that the limited

number should thus be applied in a way

that provides access to information only

for such facilities. Two other

commentors recommended that OCA

information be provided only to state

and local officials with emergency

planning, prevention, or response

responsibilities.

We note at the outset that CSISSFRRA

requires that these regulations provide

access for ‘‘any member of the public’’

to paper copies of OCA information for

a limited number of facilities ‘‘located

anywhere in the United States, without

any geographical restriction’’ (CAA

section 112(r)(r)(H)(ii)(II)(aa)). We thus

do not have the discretion to deny the

public access to paper copies of OCA

information, to establish a limit that

applies to organizations instead of

individuals, or to restrict the

geographical scope of the facilities for

which a member of the public may

request OCA information. The benefits

assessment also makes clear that public

access to OCA information would

stimulate further risk reduction and that

the public’s ability to compare the

hazards and safety practices of similar

facilities located in different places is

important to stimulating that risk

reduction.

With respect to the appropriate

numbers limit, we explained in the

proposal that we chose a limit of 10

facilities per individual per month

based on consideration of many of the

issues expressed in the comments

received. As required by the law, we

weighed the risks that would result from

unlimited reading room access to paper

copies against the benefits that would

accrue from public awareness of

potential release hazards, as

communicated through OCA

information. A limit was proposed that

would hinder the ability of an

individual or group to gather large

quantities of OCA information to post

on the Internet, while allowing

individuals in most parts of the country

or in most counties to gain access to

OCA data for all the facilities in their

community and a few more for purposes

of comparison.

In determining that limit, we

conducted an analysis of the geographic

distribution of RMP facilities across the

nation. The analysis showed that 82%

of all counties that have RMP facilities

have no more than 10 such facilities.

Because residents of most counties

would be able to review OCA

information for all the facilities in their

county in a single visit to a federal

reading room, EPA and DOJ believed

that a limit of 10 per month would

provide reasonable access for persons

living or working in areas with RMP

facilities. Moreover, under the 10 per

month limit, in the great majority of

those counties, residents would also be

able to review OCA data for RMP

facilities located outside their county.

At the same time, we recognized that

the proposed limit of 10 per individual

per month would not permit all

members of the public to obtain OCA

information for every facility in their

own communities. The proposed rule,

therefore, included provisions to

authorize and encourage LEPCs, SERCs,

and fire departments to supplement the

access provided by federal reading

rooms by providing read-only access to

OCA information for facilities located in

the LEPC’s jurisdiction and facilities

with vulnerable zones that extend into

that jurisdiction. However, as discussed

more fully below, we received

comments that many LEPCs and SERCs

would be unwilling and/or unable to

provide such access.

In passing CSISSFRRA, Congress

emphasized that members of the public

should have access to OCA information,

particularly for facilities in their local

communities (see 145 Cong. Rec. S7545,

daily ed. June 23, 1999 (statement of

Sen. Chafee)). We agree that every

member of the public should be able to

access OCA information for facilities in

the communities where he or she lives

or works without making multiple trips

to a federal reading room. We have thus

decided to require federal reading rooms

to provide any person with access to

OCA information that the LEPC in

whose jurisdiction the person lives or

works is authorized to provide (i.e.,

access to OCA information for facilities

located in the jurisdiction of the LEPC

and facilities with a vulnerable zone

that extends into that jurisdiction). That

access will be in addition to access to

OCA information for up to 10 facilities

located anywhere in the country,

without geographical restriction. With

reading room access to OCA information

for local facilities assured, access to

OCA information for 10 facilities

located anywhere will allow members of

the public to compare facilities in their

community with similar facilities

located elsewhere and to learn about

facilities in communities where they

might move or where relatives or friends

live or work.

In providing federal reading room

access to OCA information for a

person’s local facilities, we do not want

to discourage LEPCs, SERCs, and others

from providing local access to the same.

Obviously, it will be more convenient

for a member of the public to access

information locally than at a federal

reading room that may be located many

miles away. Also, we want to encourage

dialogue between members of the public

and their local officials responsible for

chemical emergency planning and

response. By making local OCA

information available locally, LEPCs,

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48119

SERCs, and other state and local

agencies can encourage the public to

become involved in chemical risk

reduction efforts. As more fully

discussed in the next section of this

notice, we are committed to helping

LEPCs, SERCs, and others provide that

local access.

3. Operation of Reading Rooms

Some commentors suggested that

federal reading rooms be open at nights

and on weekends. We understand that

some members of the public may find it

difficult to reach reading rooms during

the normal work week. However, due to

cost, personnel, and security concerns,

reading rooms will be located in federal

buildings, which are typically open only

during normal business hours. We will

explore the extent to which reading

rooms can also be open at other hours

to accommodate members of the public.

As urged by several commentors, we

have endeavored to develop a costeffective and secure means of operating

federal reading rooms. At some reading

rooms, access will be available on a

walk-in basis because the OCA data will

be maintained at the reading room. At

other reading rooms, however, the OCA

data will not be maintained on-site, and

therefore a person wishing to view OCA

data at those reading rooms will need to

contact a central office at a toll-free

number at least three days prior to the

date on which the person would like to

view the OCA information at the

reading room. During the toll-free call,

the requestor will be asked to provide

his or her name, telephone number, and

the names of the facilities for which he

or she is requesting OCA information.

That information will enable the central

office to schedule an appointment for

the requestor at a reading room, relay

the requested copies of OCA

information to that reading room, and,

if necessary, contact the requestor. That

information will not be retained beyond

the requestor’s appointment date.

As discussed below, at the reading

room, the requestor will need to display

photo identification issued by a federal,

state, or local government agency, sign

a sign-in sheet, and certify that the

requestor has not received access to

OCA information for more than 10

facilities during that calendar month.

The requestor will then receive access to

the requested OCA information.

Requestors will be limited to access to

paper copies of OCA information for a

total of 10 facilities during a calendar

month, regardless of how many reading

rooms they visit during a single month.

As discussed above, any person will

also receive access at a federal reading

room to OCA information that the LEPC

in whose jurisdiction the person lives or

works is authorized to provide (i.e.,

access to OCA information for facilities

located in the jurisdiction of the LEPC

and facilities with a vulnerable zone

that extends into that jurisdiction).

Persons seeking such access will also be

asked to sign in and to provide proof

demonstrating that he or she lives or

works in the LEPC jurisdiction for

which the OCA information has been

requested. They will not, however, be

required to sign a certification.

4. The Number of Reading Rooms

We received a range of comments on

the appropriate number of reading

rooms. Several commentors suggested

that fewer reading rooms would be

adequate and appropriate while many

commentors expressed concern that 50

reading rooms would not provide

reasonable public access due to issues

such as time and travel costs, especially

in large states and for low income

groups.

We are committed to providing

reasonable access to OCA information.

We intend to establish reading rooms in

virtually every state, the District of

Columbia, and outlying territories

having RMP facilities. In addition, we

will work to set up additional reading

rooms in states that have a significant

number of RMP facilities, such as

California and Texas. While we

anticipate establishing more than 50

reading rooms, we have not increased

the number of rooms required by the

rule because the need for additional

rooms may be affected by the extent to

which state or local government

agencies provide access under the

enhanced access provisions of the rule.

Moreover, as we implement the reading

room provision and learn more about

the demand for reading rooms in

different parts of the country, it may

become appropriate to relocate reading

rooms.

5. The Location of Reading Rooms

As for the specific locations of the

federal reading rooms, a number of

commentors suggested a number of

factors to consider in determining

locations. We agree with those

suggestions and have decided to use the

following criteria in making our

decisions: equitable distribution across

the United States and its territories; the

density of the population surrounding

the location; the availability of public

transportation to the location; the ability

to provide security at the location; and

the availability of federal offices that

could readily implement the reading

room requirement at reasonable cost.

Federal offices, it should also be noted,

are handicapped accessible. The

location of federal reading rooms will be

posted on EPA’s and DOJ’s websites

when they are determined.

6. Security Measures at Reading Rooms

We proposed that a reading room

representative be required to view a

government document identifying that

individual before granting that

individual access to OCA information.

Some commentors stated that that

requirement would have a chilling effect

on the public’s use of reading rooms

because some people may be reluctant

to show identification to the

government. Other commentors urged

that we require photo identification to

ensure that the person presenting the

identification is in fact the person to

whom the identification was issued.

We recognize that some individuals

may be reluctant to show identification

to a government official. However, the

personal identification requirement is a

reasonable means of accomplishing the

statutory requirement that individuals

have access to ‘‘a limited number’’ of

paper copies of OCA information.

Further, as noted in the risk assessment,

EPA and DOJ believe that the

identification requirement will also

decrease the likelihood that OCA

information would be obtained by

individuals seeking it for criminal

purposes because such individuals

prefer to conceal their activities. With

respect to the type of identification, EPA

and DOJ agree that photo identification

issued by a local, state, or federal

government agency (e.g., a driver’s

license or passport) should be required.

That requirement will significantly

reduce the risk that someone will

attempt to use identification not his or

her own.

One commentor suggested that there

should be some type of identification

validation system to ensure the accuracy

of an individual’s identification

document. EPA and DOJ have

concluded that it would be too costly to

create an independent identification

validation mechanism. The

responsibility for checking individuals’

identification documents will be left to

those operating the federal reading

rooms. EPA and DOJ do not consider

that to be a significant problem, since

the majority of locations at which the

reading rooms will be located are

federal agencies that have security staff

that already visually check the

identification of all persons seeking

entry to the federal facility or other

areas of limited access. Individuals

using the federal reading rooms will

have their identification checked in the

same manner as would any member of

48120 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

the public seeking entry into federal

buildings.

As discussed above, the final rule will

require federal reading rooms to provide

any member of the public with access to

the OCA information that the LEPC

where the person lives or works would

be able to provide to them. To

implement that provision, it will be

necessary for reading rooms to check

identification and documentation to

ensure that a requestor receives access

only to the local OCA information to

which he or she is entitled (i.e., OCA

information for stationary sources

located within the jurisdiction of the

LEPC in which the individual lives or

works and for any other stationary

sources that have a vulnerable zone that

extends into that LEPC’s jurisdiction).

We will create guidelines for federal

reading room personnel regarding such

procedures.

In the NPRM we described procedures

by which reading rooms would

determine whether a requestor had

exceeded the 10 per month allotment.

We anticipated that reading rooms

would keep daily sign-in sheets to

record the name of any person who

received access to OCA information and

the name and number of facilities to

which that person had received access.

Whenever someone requested access to

OCA information, reading room

personnel would review the sign-in

sheets for that day and the previous

days during the month to determine

how many, if any, facilities’ OCA

information that person had already

received that month. We noted that

sign-in sheets would be protected under

the Privacy Act (5 U.S.C. 552a) and

would be retained for three years.

We received several comments on the

record keeping aspect of the proposed

rule. Several commentors expressed

concern that the use of sign-in sheets

would raise privacy concerns, and one

commentor expressed a related concern

that the proposed rule was silent as to

how the federal government would use

the information. Other commentors

agreed with the identification

requirement and the concept of keeping

some type of record, but recommended

that the final rule require record keeping

and a corresponding check on people

using a reading room in order to ensure

that they have not had access to OCA

information for more than 10 facilities

per month. Two commentors suggested

that EPA and DOJ establish a national

database as a means of enforcing the 10

paper copy per month limit.

We recognize that privacy concerns

are raised whenever the government

collects information about individuals.

We also are mindful of the need,

identified by the risk assessment and

required by CSISSFRRA, to limit the

number of facilities for which

individuals can access OCA information

in paper form. We thus have endeavored

to design a system that will effectively

implement the limitation but minimize

the need for keeping records on

individuals’ access to OCA information.

Specifically, we will use the sign-in

sheet system discussed in the NPRM (65

FR 24853 (April 27, 2000)), and keep the

sign-in sheets in a manner that will

minimize privacy concerns and that will

not entail the creation of a system of

records under the Privacy Act. The

Privacy Act applies to records retrieved

by name within systems of records.

Federal reading rooms will not create an

elaborate tracking system; they will not

index or otherwise manipulate the signin sheets according to individuals’

names. Instead, a reading room

representative will visually inspect the

sign-in sheet(s), which will be organized

chronologically, for the month in which

an individual seeks access to paper

copies to see if that individual’s name

appears on the sign-in sheet(s) for dates

earlier in the month and, if so, if that

individual has already received OCA

information for the allotted 10 facilities

without geographical restriction.

We believe that the sign-in system

will help deter individuals from seeking

improperly to obtain OCA information

exceeding the 10 facilities per month

national limit. To further deter

individuals from attempting to exceed

their allotment by visiting more than

one federal reading room in a month,

reading room personnel will be

instructed to provide access to OCA

information only to individuals who

have signed a certification that they

have not exceeded their allotment. The

certification will inform members of the

public that they may be subject to

criminal penalties under federal law for

falsely certifying that they have not

received OCA information for more than

10 facilities that month.

It should also be noted that the

information recorded on sign-in sheets

may be used by law enforcement in the

event of a duly authorized investigation

of a violation of civil or criminal law.

For that reason, the reading rooms will

retain the sign-in sheets for three years.

In the event that the sign-in sheets are

compiled into a system retrieved by

name for purposes of such an

investigation, they will be subject to the

Privacy Act and will be handled

accordingly. Federal law enforcement

agencies have already established

Privacy Act systems applicable to their

indexed investigative records, and if the

information from sign-in sheets were so

compiled, it would receive those

protections.

The reading room records will not be

used beyond the purposes outlined

above (i.e., to ensure compliance with

the 10 facility per month limit and to

carry out authorized law enforcement

investigations).

In deciding to adopt the sign-in

certification approach, EPA and DOJ

have decided not to institute a national

database for enforcing the 10 facility per

month limit, as some commentors

recommended. We anticipate sign-in

sheets with certifications should

provide adequate assurance that the

monthly limit on OCA information is

not exceeded. However, after gaining

experience with the federal reading

rooms, we will evaluate whether the

sign-in sheet system is in fact effective.

For that purpose, we will review a

sample of sign-in sheets for several

reading rooms to determine if the

existing system is adequately enforcing

the limit. Based on that review, DOJ,

EPA, and OMB will consider whether a

national database or other tracking

system should be instituted to enforce

the limit.

One commentor asserted that the

establishment of such records would

violate the Paperwork Reduction Act of

1995 because it would not provide the

government with information that has

practical utility. That assertion is not

correct. As discussed above, the

information collected would have

practical utility, namely to ensure that

the statutory and regulatory limit on

access to OCA information in paper

form is properly applied.

7. Alternatives to Reading Rooms

We expressly asked for comments on

whether, as an alternative to reading

room access to information, paper

copies should be released to the public

upon request. Some commentors stated

that there should be an alternative

system of direct delivery of OCA paper

copies to interested parties. They

asserted that the proposed federal

reading room system would be

insufficient to provide OCA paper copy

access to all interested citizens. In

addition, they indicated that, because

only a limited number of federal reading

rooms would be established, some

citizens would find it inconvenient to

travel the distances necessary to access

the information.

Other commentors opposed off-site

distribution of paper copies or allowing

individuals to take away paper copies

from reading rooms. Some noted that

such a system would pose a significant

security risk because it would increase

the risk of OCA information being

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48121

disseminated widely, thus violating the

intent of CSISSFRRA. Some emphasized

that paper copies, once outside the

control of the government, could easily

be scanned into an Internet database

and that such a system would provide

potential terrorists with the type of

Internet access to OCA information that

the proposed rule was designed to

prevent. Further, in noting that potential

terrorists may forgo attempts to gain

access to OCA information if they must

do so in person and submit to an

identification check, some commentors

stated that the mail delivery alternative

would lessen the deterrence benefit of

on-site access.

We have considered the alternatives

of mail delivery of OCA information to

interested citizens and the distribution

of take-away copies, and have

determined that both would present an

unacceptable security risk. With respect

to mail delivery upon request, any

safeguards, such as a requirement of

proof of residence at the delivery

location, could easily be circumvented

by an individual or group establishing a

‘‘phantom residence.’’ We also agree

with the commentors who noted that

requiring persons to go to a federal

reading room and provide identification

would provide some deterrence to those

potential terrorists who might wish to

keep their interest in the information

hidden. We further agree that, once

paper copies have left the federal

reading rooms, they can easily be

scanned onto the Internet where they

could be viewed anonymously by those

with criminal intent. Anonymous access

to significant amounts of OCA

information is precisely what this rule

is designed to prevent. As a result, the

final rule will use reading rooms to

provide access to paper copies because

reading rooms allow for that access to

occur within a controlled setting.

E. Enhanced Local Access to OCA

Information

Commentors generally supported the

proposed rule’s provisions for enhanced

local access as a promising means of

facilitating the public’s access to OCA

information and public-private dialogue

about chemical safety in their

communities. Many of those

commentors, however, also pointed out

a number of obstacles to making

enhanced local access a reality and

suggested ways of overcoming those

obstacles.

A key element of the proposal for

enhanced local access was clarification

that state and local government officials

(as well as federal officials) may

communicate to the public the

substance of OCA information (i.e., the

OCA data elements reported in RMPs),

even though they may not disseminate

the official forms in which the data is

reported and compiled (i.e., the OCA

portions of RMPs and EPA’s OCA

database). While developing the

proposed rule, we learned that many

state and local officials were concerned

that CSISSFRRA may preclude them

from communicating OCA data in any

form. As we explained in the proposal,

the ‘‘scope’’ section of ‘‘CSISSFRRA’’

(CAA section 112(r)(7)(H)(xii)(II))

expressly provides that the statute ‘‘does

not restrict the dissemination of [OCA]

information by any covered person

[defined by CSISSFRRA as government

officials and qualified researchers] in

any manner or form except in the form

of a risk management plan or an

electronic data base created by the

Administrator from [OCA] information.’’

In other words, while covered persons

may not disseminate the OCA portions

of RMPs or any EPA database created

from those portions, they may discuss or

otherwise communicate the data

reported in those portions. We thus

proposed capturing that important point

in the proposed regulations.

We received comments supporting

and questioning the proposed

clarification. Several commentors from

LEPCs and SERCs indicated the

clarification was helpful but sought

further guidance on how OCA data

could be lawfully disseminated. Other

commentors were concerned that the

clarification was not consistent with the

law, and that communication of OCA

data was risky because it is

dissemination of the information’s

content, not its format, that they

believed poses the risk. Another

commentor expressed concern that the

clarification could be interpreted to

allow dissemination of the restricted

portions of RMPs with only minor

changes in format, which would

undermine the protections of

CSISSFRRA.

After revisiting CSISSFRRA and its

legislative history, we have concluded

that the proposed rule’s clarification not

only is consistent with the law but

virtually mirrors it. As noted above,

CSISSFRRA itself provides that it does

not restrict the dissemination of OCA

information in any manner or form

except in two specified forms—the OCA

portions of an RMP and any EPA

database created from those portions.

RMPs, including the sections containing

OCA data, are designed to make

information contained therein easy to

compile into an electronic database,

which would be capable of Internet

posting. The legislative history confirms

that Congress intended to make clear

that government officials could

communicate the substance of OCA

information if not the restricted forms of

that information—in order to allow the

type of public dialogue that is important

to chemical emergency prevention,

planning, and response. As one House

member explained, CSISSFRRA was

passed to address the risk posed by

Internet posting of a large OCA

database, not to prevent public officials

from sharing OCA data for individual

plants with their communities. (See 145

Cong. Rec. H6083, daily ed. July 21,

1999 (statement of Rep. Dingell)).

We share the concern voiced by one

commentor that the protections

provided by CSISSFRRA would be

undone if minor changes in the format

of OCA information were sufficient to

allow a government official to

disseminate lawfully the OCA portions

of RMPs or EPA’s OCA database. We

believe CSISSFRRA’s scope provision

must be interpreted in a common sense

manner that achieves Congress’ intent

both to protect OCA information from

Internet dissemination and to allow

government officials to discuss risk. As

noted above, Congress’ concern with the

OCA portions of RMPs arose from the

fact that they are easy to compile into

an electronic database. Minor changes

in format most likely would not change

that problematic characteristic. We have

thus removed the word ‘‘replicate’’ from

the relevant provision of the final rule

in order to avoid the implication that

minor changes in the format of OCA

information would be sufficient to

permit their release. That change is

consistent with the point made by the

House member cited above who stated

that OCA information may be used ‘‘in

any other format that avoids

compilation of a national database.’’

Under that view, for example,

discussion of OCA data at a public

meeting would be appropriate because it

would not be a form of communication

amenable to the creation of such a

database.

Several LEPCs asked us to further

clarify how they may communicate the

substance of OCA information (referred

to as ‘‘OCA data elements’’ in the rule).

We appreciate their concerns and plan

to provide additional guidance in the

future. Because it is impossible to

foresee all the ways in which

government officials may wish to

communicate OCA data elements, we

believe it would be most efficient and

productive to work with representatives

of LEPCs, SERCs, and other relevant

government agencies in reviewing

possible means of communication and

responding to inquiries about the same.

48122 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

Many commentors expressed doubt

that the enhanced local access

provisions would work as proposed.

They noted that, because many LEPCs

are inactive or have limited funding,

few LEPCs would be willing or able to

afford to provide secure OCA read-only

access. Relatedly, a national

organization of fire department officials

expressed strong opposition to the

proposed specification of fire

departments as institutions that could

volunteer to provide the public with

local OCA information. One commentor

suggested we authorize not only LEPCs

and fire departments but also other local

government agencies involved in

chemical emergency planning,

prevention, or response, such as police

and planning departments. Local

governments would then have several

options for providing the public with

read-only access.

We recognize that a large number of

LEPCs are currently inactive, but

EPCRA survey data indicate that most

heavily populated industrial areas have

active LEPCs. Those LEPCs are

providing EPCRA information (chemical

inventory data and contingency plans,

some of which include possible

consequences of hypothetical accidents)

to the public. Although the final rule

does not require LEPCs to disseminate

OCA information, we expect that those

with active EPCRA public information

programs could easily provide enhanced

local access to OCA information.

Since some areas of the country do

not have active LEPCs, we have decided

to expand the types of entities that are

authorized to provide read-only access,

as suggested by a commentor. The final

rule provides that LEPCs and any other

‘‘related local government agency’’ may

provide the public with read-only

access to OCA information for facilities

in the LEPC’s jurisdiction and any other

facilities with a vulnerable zone that

extends into that LEPC’s jurisdiction.

Related local government agencies

include fire, police, and planning

departments and any other local

government agency involved in

chemical emergency planning,

prevention, or response.

One commentor asked whether state

agencies that take delegation of the CAA

112(r) program would be authorized to

provide read-only access. The final rule

expands the types of state entities that

may provide read-only access to OCA

information. Along with SERCs, any

‘‘related state government agency’’ (e.g.,

emergency management, environmental

protection, and natural resources

departments involved in chemical

emergency planning, prevention, or

response) would be authorized to

provide a person with access to OCA

information that the LEPC in whose

jurisdiction that person lives or works

could provide. Thus, a state agency that

takes responsibility for implementing

the RMP program under CAA section

112(r) may provide that access. It is also

worth noting that the final rule does not

prescribe the locations where read-only

access to OCA information may be

provided by LEPCs, SERCs, and state

and local government agencies. They

may provide access at any facility they

choose, including municipal buildings

and courthouses.

As described earlier, to further

address concerns that enhanced local

access may not become a reality in every

part of the country, we have also

decided to require federal reading rooms

to provide any member of the public

with access to OCA information that the

LEPC in whose jurisdiction the person

lives or work would be authorized to

provide. By expanding the number of

state and local entities that may provide

enhanced access and the scope of access

to OCA information that federal reading

rooms are required to provide, we

believe the final rule will provide

reasonable access to OCA information

for all members of the public.

Several commentors recommended

that the federal government provide

LEPCs and SERCs with the resources

necessary to provide local access,

including a binder containing all of the

OCA information that a particular LEPC

would be authorized to show the public.

A commentor also requested model

procedures for operating a local OCA

reading room. Further, a few

commentors suggested that, in those

communities with RMP reporting

facilities that do not have LEPCs, EPA

work with the local governments to

establish them. We agree that federal

assistance and guidance are warranted.

As explained below, we intend to

supply the binders suggested by one of

the commentors to LEPCs, SERCs, and

related local and state agencies that

decide to provide enhanced local

access. Providing that and other support

to local access efforts will become an

important component of the EPA’s

chemical accident prevention program.

Additional commentors stated that

most LEPCs and SERCs would be unable

to determine whether a facility outside

their jurisdiction has a vulnerable zone

that would affect their area. One

commentor suggested that the final rule

should simply authorize LEPCs to

distribute the OCA for any facility

within 25 miles of their local

boundaries. We are not changing our

approach in today’s final rule. As noted

above, we intend to provide any LEPC

or related local agency willing to

provide local access with a binder that

contains the OCA information it is

authorized to show the public. We will

also work with SERCs and related state

agencies to provide them with a similar

resource (depending on the number of

facilities in a state, binders may be too

cumbersome, so there may be a need to

explore other means of providing the

information). Moreover, contiguous

LEPCs can, and often do, work together

to determine which RMP facilities have

vulnerable zones that affect their areas.

LEPCs, SERCs and other emergency

planning organizations have historically

engaged in joint planning activities to

better prepare for emergencies. We are

thus confident that the rule’s provision

allowing local or state agencies to share

OCA information with adjoining

jurisdictions can be implemented in a

manner that would assist LEPCs and

SERCs to determine which facilities

outside their jurisdictions have

vulnerable zones that extend into their

jurisdiction.

Two SERCs and one LEPC

commented that the proposal to

authorize SERCs to provide individuals

with OCA information on the basis of

that individual’s residence or workplace

was too burdensome. They questioned

whether SERCs would be able to verify

the requestor’s place of residence or

workplace. We understand that SERCs

and related state agencies will have to

request and review proof of residence

and/or workplace. Federal reading

rooms will have to do the same for any

person requesting OCA information on

those bases. We believe that that

requirement is necessary, however.

SERCs have much broader jurisdictions

than do the vast majority of LEPCs.

Thus, the number of facilities within

their jurisdictions is typically much

greater. If SERCs were allowed to share

OCA information for all the facilities in

their jurisdictions with any member of

the public, the risk of persons using

SERCs to amass OCA information would

be significant. To avoid that risk, we

must limit the amount of OCA

information a SERC or related state

agency can share. We appreciate the

extra work that that may involve, but

believe it would be manageable. A

driver’s license or other identification

can establish someone’s home address

while a pay stub can establish a work

address. As we address the same issue

in federal reading rooms, we will share

our ideas and experiences with the

states.

One commentor also questioned our

authority to limit the release of OCA

information to individuals on the basis

of their residence or workplace. The

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48123

commentor claimed that there is no

statutory authority for such a limitation.

In fact, the local enhanced access

provision is being implemented under

CAA section 112(r)(7)(H)(ii)(II)(bb),

which authorizes the regulation to allow

public access to OCA information ‘‘as

appropriate.’’ In light of the previously

discussed concerns that would arise

were SERCs allowed to provide OCA

information for the entire state, we

believe that it is appropriate to adopt

the residence and workplace limitation

for local agency dissemination of OCA

information.

Several commentors from LEPCs and

SERCs expressed great reservation about

the potential criminal liability

associated with the improper disclosure

of OCA information. Some stated that,

because of those concerns, they have not

requested the OCA information that

they are entitled to obtain and are

authorized to show the public. The final

rule is intended to address those

concerns. It makes clear that state and

local (as well as federal) officials may

communicate OCA data elements to the

public in a form other than the OCA

sections of RMPs and EPA’s OCA

database. It also authorizes LEPCs,

SERCs, and related local and state

agencies to show the OCA sections of

RMPs to members of the public in

accordance with specified geographical

limitations. In a subsequent section of

this preamble, we discuss what OCA

information state and local officials may

share with one another. Moreover, as we

noted earlier, government officials may

be held criminally liable for unlawfully

disseminating OCA information only if

they ‘‘willfully’’ violate CSISSFRRA

(i.e., by distributing OCA information

with the knowledge that they are doing

so unlawfully).

One commentor asserted that only

local persons who live or work within

the vulnerable zone of a facility should

have access to local reading rooms.

Several commentors also recommended

that local reading room staff be required

to implement the same security

procedures that federal reading rooms

will follow—asking users for photo

identification and recording information

about their access to OCA information.

That, the commentors argued, would

close a loophole in the proposal that

would allow persons to obtain OCA

information without being tracked. We

understand that asking local providers

of OCA information to follow security

procedures would further reduce the

risks identified by the risk assessment.

However, we did not propose those

security procedures at the local level

because of the burden that that would

create and the effect that that burden

might have on the ability and

willingness of local entities to provide

OCA information access. We also took

into account the fact that the vast

majority of LEPCs have a relatively

small number of RMP facilities located

in, or affecting, their jurisdiction. We

thus concluded that any risk posed by

local read-only access without

additional security procedures was

small. The comments we received from

LEPCs, SERCs, and others confirm our

concerns about requiring local agencies

to follow the type of security procedures

that federal reading rooms will follow.

Indeed, the comments indicate that

local agencies will find it a challenge to

provide local access, even with the help

we intend to provide. We have thus

decided not to impose any further

requirements on local agencies willing

to provide read-only access to local

OCA information.

We also do not agree that local access

should be restricted to local residents.

First, implementing such a restriction

would require local agencies to institute

much, if not all, of the security

procedures that we have decided would

be too burdensome. Second, members of

the public who do not live or work in

a community may nevertheless have a

legitimate interest in obtaining OCA

information for that community. For

example, a requestor may have relatives

who live in the community, or may be

considering purchasing a home or

working in the area.

Lastly, several commentors

recommended that LEPCs be authorized

to provide take-away paper copies of

local OCA information. Several others

recommended against permitting LEPCs

to do so. We have concluded that if

users were permitted to obtain paper

copies of OCA information LEPC-byLEPC, it would not be long before a

large collection would be accumulated

and possibly posted on the Internet. For

that reason, the final rule retains the

proposed prohibition on LEPC and

SERC dissemination of take-away paper

copies of local OCA information.

F. Risk Indicator System (Vulnerable

Zone Indicator System)

Many of the comments on the

proposed risk indicator system were

positive, stating that the system would

provide useful information that would

encourage the general public to become

more active in addressing chemical

safety concerns in their communities. At

the same time, those and other

commentors raised various concerns

with the system and made suggestions

for improving it. A few commentors

considered the system so troublesome

that they urged us to abandon it

altogether.

Several commentors thought the

proposed indicator system might

frighten recipients of the information

and had the potential for depressing

property values. They noted that the

system would communicate information

based on worst-case release scenarios

that are highly unlikely and that the

information provided would necessarily

be imprecise given the nature of RMP

data. Based on those concerns, some

commentors urged us not to implement

the system, or to convert the system so

that it would identify the RMP facilities

near a particular address, but would not

indicate whether facilities’ vulnerable

zones extend to that address. Other

commentors recommended that we

avoid potential misunderstandings by

including in the system caveats

explaining the nature and limitations of

the vulnerable zone derivations.

We continue to believe that an

indicator system can help spark the

public’s awareness of chemical risks in

its community and interest in working

with government and industry to reduce

them. Members of the public can

already use RMP*Info to locate nearby

facilities by asking the system to search

for facilities by zip code or county. We

proposed an indicator system to allow

members of the public to determine if

their homes, schools, or other places of

interest might be affected by a worstcase or alternative scenario release from

a facility. The benefits assessment found

that the public is more apt to use such

interpreted data, and we thus developed

the indicator system as a way of

providing the public with information

that communicates risk without

disseminating OCA information itself.

At the same time, we agree that it is

important that users of the indicator

system understand the nature and

limitations of the information thereby

provided. We will therefore design the

system to include sufficient explanatory

information so that users will not

become unduly alarmed if the system

reports that their address might be in a

vulnerable zone. The system will

display a notice explaining that it is

designed to perform the limited

function of helping users quickly

determine whether the off-site

consequences of any facility’s worstcase or alternative release scenarios

might affect a particular address. It will

also explain the limitations of the data

used to calculate the vulnerable zones.

Relatedly, several commentors

thought the proposed name, ‘‘Risk

Indicator System,’’ was inaccurate

because it would not provide an

indication of ‘‘risk,’’ understood to be

48124 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

the probability of an event multiplied by

the consequences of that event. Those

commentors suggested changing the

name of the indicator system to ‘‘Hazard

Indicator System’’ or ‘‘Vulnerable Zone

Indicator.’’ We agree with those

comments, and have decided in the

final rule to change the name of the

system to ‘‘Vulnerable Zone Indicator

System’’ (VZIS). That name more

accurately reflects the limited purpose

and capabilities of the system.

Several commentors expressed

concern that the proposed indicator

system could be used to determine

distance to endpoints and thus would

provide useful targeting information.

We do not agree. The indicator system

will consist of very limited query and

response software located in RMP*Info.

The information provided by the system

will be whether an address might be

within a vulnerable zone. There will be

no indication whether the address is at

or near the outer boundary of a

vulnerable zone. Nor will the system

provide the name or location of the

facility that is the origin of the

vulnerable zone. Thus, no one would be

able to determine from the indicator

system the distance to endpoints

reported as part of OCA information.

A number of commentors asserted

that the proposed indicator system

should be deployed only if it identifies

the facility that is the origin of the

vulnerable zone and/or the chemical

involved in the hypothetical release

defining the zone. They were concerned

that, without that information, the

system would alarm users without

providing them with the information

necessary to address their concerns. A

number of other commentors

recommended strongly against

identifying facilities, arguing that to do

so would compromise the security

achieved by the rule’s restrictions on

access to OCA information. Some

commentors suggested that the indicator

system instruct users on how to obtain

facility identities; one recommended

including instructions on how to

contact the facility or facilities directly.

We recognize that system users who

learn that their address might be within

a vulnerable zone would likely want to

learn more about the hazards they may

face. Indeed, we hope that that would be

their reaction. However, we remain

concerned that the indicator system

would pose security concerns if the

public could immediately obtain, on an

anonymous basis, the name of the

facility and chemical involved. Instead,

we intend that the system furnish

instructions on how to obtain the names

of facilities in whose vulnerable zones

they live or work.

Several commentors stated that the

indicator system should not direct

recipients of the indicator system data

to LEPCs or SERCs for further

information unless those agencies have

agreed to provide access to such

information. We agree in part with those

commentors. We believe that chemical

safety is most effectively addressed at

the local level. SERCs, LEPCs, and other

state and local entities are generally in

closer contact than is EPA with local

facilities and communities that would

be affected by releases. For more than a

decade, EPA has endeavored to work

cooperatively with local agencies so that

they can realize their potential to help

prevent and respond to accidental

releases. We therefore believe that

SERCs, LEPCs, and other local entities

can and should be encouraged to

assume an important role in

communicating OCA information to

members of the public. While we do not

intend for the indicator system to direct

users specifically to SERCs and LEPCs,

the indicator system will inform users of

the several ways, including through

their SERCs and LEPCs, through which

they can obtain additional information

about the facilities whose vulnerable

zones might affect an address of interest.

We have thus revised the last sentence

in proposed § 1400.4(a) accordingly.

While we cannot at this time name all

potential sources of information, at least

facility names, locations, and vulnerable

zones will be available at all federal

reading rooms and all SERCs, LEPCs, or

other state and local agencies that opt to

provide local access to OCA

information. The indicator system will

note specifically state and local entities

that do not seek and/or provide that

information. The system will also advise

users that, once they know the name of

a facility, they can turn to RMP*Info to

learn more about the facility’s chemical

accident history and the steps the

facility is taking to prevent such

accidents. Individuals may also contact

a facility directly to request access to

OCA information. The system will also

inform users that they can obtain not

only OCA information but further

information on risk through contacting

a SERC, LEPC, or other state or local

‘‘covered person.’’ Federal, state, and

local government officials are

authorized and encouraged in the

proposed rule to provide reading-room

access to OCA information, and are

permitted to convey and discuss the

substance of OCA information, as long

as they do so in a manner that does not

disseminate the OCA sections of the

RMPs or EPA’s OCA database.

Several commentors also expressed

concern about whether the indicator

system would be easy for local covered

persons to operate. EPA intends to

provide an enhanced version of the

RMP*Review software to those federal,

state, and local covered persons

providing local access so that they can

easily identify the facilities whose

vulnerable zones extend to a particular

address, and provide that facility

identification information to individuals

who request it.

Some commentors worried that the

indicator system would ‘‘rate’’ facilities

for potential risk. Nothing in the

proposed rule required the indicator

system to include rating information,

and no such requirement has been

added to the final rule. The risk a

facility poses is a function of many

factors, at least some of which are sitespecific. No computer system could

adequately account for all relevant

factors. As discussed below, we intend

to maintain a website of chemical

safety-related information that will

assist the public in assessing hazards

posed by facilities and measures that

can reduce those hazards. In addition,

RMP*Info already allows the public to

learn about facilities’ prevention and

response programs.

G. Internet-Accessible OCA Information

As explained in detail in the NPRM,

the risk assessment segregated the OCA

information that would be helpful to

terrorists or other criminals into three

categories. The first category of OCA

information provided a general account

of the consequences of a chemical

release in terms of the damage that

might be inflicted on the community. It

was composed of the distance to

endpoint, the residential population

within the distance to endpoint, the

public receptors, the environmental

receptors, and the map or graphic of the

worst-case or alternative release

scenario. The second category of

information consisted of OCA

information that provided a rough

sketch of what is involved in triggering

a release from an RMP facility. Included

in this category were the name of the

chemical involved in the worst-case or

alternative release scenario; the

projected quantity of chemical released;

the release rate; the duration of the

release; and the scenario that results in

the release. The third category of

information consisted of OCA

information on passive and active

mitigation measures.

The risk assessment concluded that

Internet access to categories one and

two of OCA information posed the

greatest risk of being used in relation to

an attempted industrial chemical

release. However, there were certain

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48125

items of OCA information within

category two that posed less risk

because they were fixed values that

were widely known. Thus, the proposed

rule would have posted on the Internet

the OCA information in category three

and parts of the information in category

two, but withheld the remaining

information in category two and all of

category one.

We solicited public comment on

whether any additional items of OCA

information should be placed on the

Internet or whether any items of OCA

information that we have proposed

posting should not be. The comments

we received were divided. Some

commentors asserted that the risk

assessment’s findings in regard to the

dangers of posting category 2

information should be heeded and that

no category 2 information should be

placed on the Internet. Others argued

that category 3 information should not

be posted because the risk assessment

found that it would be helpful to

terrorists (although the assessment

found that it would be much less so

than would category 1 or 2 information).

Still others argued that no OCA

information, especially the passive and

active mitigation system information in

category 3, should be placed on the

Internet.

Other commentors maintained that

the OCA information that we proposed

posting would be meaningless unless

viewed in the context of the rest of the

OCA information. Several commentors

similarly argued that all OCA

information should be placed on the

Internet without restriction. Still

another commentor believed that at

least the chemical name should be

included in the information posted.

We have considered those comments

and still believe that the public will

benefit from posting the items of OCA

information that we proposed. Such

information can be used for purposes of

comparing various risk reduction

characteristics of RMP facilities.

Further, posting it would not create an

unacceptable security risk. While some

commentors have expressed concern

about the release of information about

active and passive mitigation measures,

similar RMP information has already

been released on the Internet and the

release of that information was found by

the risk assessment to pose the least

degree of risk. Furthermore, such

information is precisely the type of

information that could be used by the

public to further its dialogue with

industry.

In regard to the comments that all

OCA information be placed on the

Internet, the risk assessment found that

wholesale release of OCA information in

that manner would unacceptably

heighten the risk of intentional releases.

Similarly, we disagree with the

comment concerning the names of

chemicals. While we recognize that

there would be public benefit resulting

from the posting of that information, we

find that the risk that it could be used

in concert with other OCA information

for illicit purposes is too great to permit

it to be posted. As one commentor

noted, while an individual item of OCA

information may not appear to pose a

significant risk standing alone, its

release could raise ‘‘mosaic’’ concerns:

some items of OCA information may not

raise significant security concerns

considered individually but pose greater

concerns when assembled with other

items of OCA information. For example,

some items of OCA information in

category 2 can be used to calculate items

of information that are in category 1. We

believe that while the items of OCA

information that we proposed posting

will not pose mosaic problems, others

would. Thus, only the items of OCA

information that were proposed to be

posted will be placed on the Internet.

H. Access to OCA Information by

Government Officials

The proposed rule called for codifying

CSISSFRRA’s provisions regarding

access to OCA information by state and

local governmental officials for ‘‘official

use.’’ We received comments raising

questions and concerns about various

aspects of the proposed codification.

One commentor criticized the

proposed definition of ‘‘official use,’’

claiming that it would exclude the use

of OCA information for purposes of

enforcing the RMP rule or other legal

requirements. We disagree. The

proposed definition of ‘‘official use’’ is

substantively identical to the statutory

definition of that term. Consequently, to

the extent that definition limits the use

of OCA information, we have no

discretion to change that result.

However, we believe that the statutory

and regulatory definition of ‘‘official

use’’ does permit the use of OCA

information in enforcement actions

against facilities. ‘‘Official use’’ is

defined as ‘‘an action of a federal, state,

or local government agency or an entity

[such as LEPC, SERC or volunteer fire or

police department] intended to carry out

a function relevant to preventing,

planning for, or responding to

accidental releases.’’ (Final rule,

§ 1400.2(h)). Determining compliance

with, and enforcing the terms of, the

RMP rule is surely carrying out a

function relevant to preventing,

planning for, or responding to

accidental releases. The same can be

said about determining compliance

with, and enforcing, EPCRA and other

legal requirements related to chemical

accident prevention, planning, and

response.

Several commentors raised concerns

about the proposed restrictions on state

and local officials’ dissemination of

OCA information to their counterparts

in other states. One commentor

considered the restrictions arbitrary and

claimed they would interfere with

useful communications among states.

Another commentor urged us to avoid

hindering OCA information sharing

between fire and emergency service

personnel from jurisdictions involved in

joint planning. By contrast, another

commentor recommended that the rule

not allow a state or local official access

to OCA information for facilities not

located in the official’s state.

Based on our review of the statute and

its legislative history, we believe that

the proposed provisions for state and

local official access are legally required.

CSISSFRRA itself expressly provides

that the final rule must allow for state

and local officials to gain access to OCA

information for facilities not only in

their own state but in other states as

well. EPA will provide state or local

government officials with OCA

information for their state upon request.

In addition, to avoid unnecessarily

broad dissemination of OCA

information to state and local officials,

CSISSFRRA requires that those officials

specifically request information for

facilities in other states, rather than

provide that the federal government

unilaterally distribute it to them.

CSISSFRRA leaves no doubt, however,

that the final rule must allow a state or

local official, upon request, to access

OCA information for official use for his

or her state or any other states. Morever,

as the benefits assessment points out,

persons interested in evaluating the

safety practices of local facilities may

find it helpful to compare OCA

information for those facilities with that

of similar facilities located elsewhere.

This statement is as true for government

officials as it is for members of the

general public.

Similarly, CSISSFRRA itself limits the

extent to which a state or local official

can share OCA information with

officials of other states or of localities in

other states. It specifies that the

regulations allow such officials to share

OCA information for their states with

officials of contiguous states. We do not

anticipate that this limitation will

hinder useful communication among

officials of different states and localities.

Since under CSISSFRRA and the final

48126 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

rule any state or local official may

request OCA information for facilities in

any state, it will not be necessary for

state and local officials to disseminate

their own information. A state or local

official interested in obtaining

information for a noncontiguous state

may simply request it from EPA, and an

official interested in sharing that

information with another state’s officials

may suggest to those officials that they

request it themselves.

The commentors’ general point that

the rule not hinder communications

among government officials

nevertheless is well taken. We have

reviewed the relevant regulatory

provisions and made several changes to

improve their clarity and practicality.

While the proposed rule authorized EPA

to provide a state or local official with

OCA information for ‘‘his or her’’

official use, the final rule deletes the

quoted language so that every official in

a state or locality with an official use for

the information need not request it

separately. Relatedly, we have revised

the regulatory language to make clear

that officials within a state or locality

may share OCA information with one

another for official purposes.

Consequently, an official from a county

planning department, for example, may

request OCA information for official use

and distribute it to his or her colleagues

who also need to review the information

‘‘to carry out a function relevant to

preventing, planning for, or responding

to accidental releases.’’

As indicated above, CSISSFRRA

provides government officials with

access to OCA information for ‘‘official

use.’’ One commentor suggested that

EPA ensure that the government official

requesting OCA information has an

‘‘official ‘need to know.’ ’’ We believe

that approach is unnecessary and

impracticable. CSISSFRRA contains a

definition of ‘‘official use’’ that

describes the purposes for which such

officials may lawfully use OCA

information. The final rule adopts the

statutory definition verbatim. Before

providing OCA information to a

government official as required under

CAA section 112(r)(7)(H)(iv) (regarding

availability of OCA information during

the first year following enactment of

CSISSFRRA), we ask the official to state

in writing that access is for ‘‘official

use’’ as defined by the statute. If the

official uses OCA information for other

than official purposes, he or she might

be exposed to administrative, and

possibly criminal, sanctions. As an

added precaution, and as required by

CSISSFRRA, we will continue to

provide officials receiving OCA

information with a security notice that

includes examples of what constitutes

‘‘official use.’’

Finally, several states and LEPCs

commented on the logistics of obtaining

and safeguarding OCA information. One

commentor urged us not to charge local

officials for paper copies of OCA

information, particularly in light of the

proposal that LEPCs and other state and

local entities be allowed to make paper

copies of OCA information available to

the public in read-only form. Another

commentor urged us to provide OCA

information in an ‘‘organized’’ way, that

is, according to LEPC jurisdiction. As

stated above we intend to provide paper

copies of OCA information, free of

charge, for facilities on the basis of

LEPC jurisdiction to LEPCs, SERCs, and

others interested in providing read-only

access. For local and state officials with

limited electronic resources, we also

intend to provide paper copies of OCA

information for facilities within their

state.

I. Other Provisions

The proposed rule also included

provisions prohibiting government

officials, as well as researchers who

receive OCA information under CAA

section 112(r)(7)(h)(vii), from

disseminating OCA information and

‘‘OCA rankings’’ to the public except as

authorized by the rule or a specified

provision of CSISSFRRA. The proposed

rule defined ‘‘OCA rankings’’ as ‘‘any

statewide or national ranking of

identified stationary sources derived

from OCA information.’’ One

commentor criticized that definition,

claiming that it is vague and raises due

process issues. The commentor also was

concerned that the definition would

prevent state or local officials from

ranking facilities based on parameters

similar or even identical to the data

reported in the OCA sections of RMPs.

The proposed definition was drawn

virtually verbatim from CSISSFRRA,

which prohibits government officials

and qualified researchers from

disseminating to the public OCA

information ‘‘or any statewide or

national ranking of identified stationary

sources from such information’’ (CAA

section 112(r)(7)(H)(v)(I)). We believe

the statutory language, and thus the

regulatory definition, are not

unconstitutionally vague, as individuals

clearly can identify in advance what

constitutes a ranking of stationary

sources, on a statewide or nationwide

basis, and whether the OCA information

provided to them was used to create the

ranking. We do not believe the

definition prevents state or local

officials from using information other

than OCA information to rank facilities.

‘‘OCA information’’ is defined by

CSISSFRRA and the rule as the OCA

portions of RMPs and any EPA database

created from those portions; ‘‘RMP’’ is

defined as the risk management plan

submitted to EPA pursuant to the RMP

rule. If state or local officials, without

resort to OCA information, have

developed or gained access to data

similar or even identical to the OCA

data reported in RMPs, they are not

precluded from using that data to rank

facilities.

III. Discussion of Final Rule

After considering the comments

received, we have sought to craft a final

rule that meets CSISSFRRA’s

requirements and reflects consideration

of both assessments’ findings.

CSISSFRRA’s requirements include

providing any member of the public

with access to paper copies of OCA

information for a ‘‘limited number’’ of

facilities (CAA section

1129r)(7)(H)(ii)(II)(aa)) and other access

‘‘as appropriate’’ (CAA section

112(r)(7)(H)(ii)(II)(bb)). The risk

assessment concluded that posting

certain portions of OCA information on

the Internet would increase the risk that

terrorists or other criminals will attempt

to cause an industrial chemical release

in the United States. Easy access to OCA

information would assist someone

seeking to identify the most lethal

potential targets from among the 15,000

facilities that have submitted OCA

information. The benefits assessment,

however, concluded that public

disclosure of OCA information would

likely lead to a significant reduction in

the number and severity of accidental

chemical releases. Widespread access to

OCA information would serve the

functions Congress originally intended

in enacting the CAA and requiring the

collection of OCA information to inform

members of the public of potential

environmental hazards and to allow

them to participate in decisions that

affect their lives and communities.

While chemical accidents take a

significant toll on life, property, and the

environment each year, we believe that

the property damage, personal injuries,

and loss of life resulting from a single,

successful terrorist attack on a chemical

facility could be considerable and

would likely cause more damage than

would many accidental chemical

releases. We therefore have attempted to

balance those concerns by making as

much OCA information as appropriate

available online, but not posting the

information that the risk assessment

found would, if disseminated without

restriction, pose a significant risk for

terrorist or criminal purposes. Although

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48127

the Internet provides a tremendous

benefit by offering people easy access to

a wealth of information, we also

recognize that it provides a new means

for criminals and terrorists to carry out

traditional criminal activities. The final

rule provides several means for

individuals to obtain OCA information

not only for facilities within their

community but also for a sufficient

number of facilities located elsewhere,

thereby enabling individuals to compare

facilities’ safety and prevention

measures and records. Those means are

described below.

Both the proposed and final rules

have been approved by the Director of

OMB.

A. Access to Paper Copies of OCA

Information

The final rule creates federal reading

rooms to fulfill CSISSFRRA’s

requirement to provide individuals with

access to paper copies of OCA

information of a limited number of

facilities. A minimum of 50 federal

reading rooms will be geographically

located across the United States, with

approximately one federal reading room

per state. The number and location of

those reading rooms may be adjusted

based upon public demand and the

agencies’ experience in administering

them.

Under the rule, any person shall be

provided with access to a paper copy of

the OCA information for up to 10

stationary sources per calendar month

located anywhere in the country,

without geographical restriction. In

addition, the final rule directs federal

reading rooms to provide access to

paper copies of OCA information for

facilities located within the LEPC

jurisdictions where the individual lives

or works and for any additional

facilities that have vulnerable zones that

extend into those LEPC jurisdictions.

Individuals will be allowed to read and

take handwritten notes from, but not

remove or mechanically reproduce, the

paper copy of OCA information.

Reading room personnel will be

required to ascertain a requestor’s

identity by viewing a photographic

identification for an individual issued

by a government agency and obtain a

signature on a sign-in sheet and a

certification before providing that

person with access to OCA information

for up to 10 facilities per month without

geographical restriction. Similarly,

reading room personnel will be required

to view documentation of where an

individual lives or works and obtain a

signature on a sign-in sheet before

providing any person with access to the

OCA information that the LEPC in

whose jurisdiction lives or works would

be authorized to provide. Reading rooms

will also be required to keep records to

ensure that no individual receives OCA

information beyond the limits

established by the rule.

B. Enhanced Access to Local OCA

Information

Several provisions of the final rule are

designed to enhance the public’s access

to OCA information for local stationary

sources. In response to comments

regarding the appropriate governmental

agencies to provide enhanced access,

EPA and DOJ have modified the final

rule to permit related local government

agencies and related state government

agencies, as defined in the regulation, to

provide access. The rule authorizes and

encourages LEPCs and related local

government agencies to provide readonly access to OCA information for

sources located within an LEPC’s

jurisdiction and for any other stationary

sources that have a vulnerability zone

extending into that jurisdiction.

Likewise, SERCs and related state

government agencies are authorized and

encouraged to provide read-only access

to the same OCA information that the

LEPC in whose jurisdiction the person

lives or works would be authorized to

provide. Federal reading rooms are

similarly authorized to provide readonly access to OCA information. Such

information will not be subject to the 10

facility per month limit.

The final rule also codifies the

statutory provisions of CSISSFRRA that

allow any member of an LEPC or SERC

or any other state or local government

official to convey to the public any OCA

data elements orally or in writing,

provided that the data elements are not

conveyed in the format of sections 2

through 5 of an RMP or any electronic

database that EPA has developed that

includes OCA data elements.

C. Vulnerable Zone Indicator System

The final rule establishes a

‘‘vulnerable zone indicator system’’

(VZIS) which provides persons located

in any state with a means of obtaining,

via electronic mail or other inquiry,

information regarding the risk expressed

by OCA information without providing

Internet access to the OCA information

itself. Members of the public will be

able to learn whether a specific address

(such as that of a home, school, or place

of employment) falls within a reported

‘‘vulnerable zone’’ (i.e., within any RMP

facility’s worst-case or alternative

release scenario’s ‘‘distance to

endpoint’’). Electronic mail inquiries

will usually receive a response within

two working days. Members of the

public who do not have access to the

Internet will be able to obtain the same

information by calling an EPA toll-free

number or by sending regular mail to

the Administrator of EPA. VZIS will

consist primarily of query and response

software located in RMP*Info.

VZIS will also provide individuals

with information on how to identify the

specific facilities affecting the address

submitted to VZIS. It will also provide

contact information and sources of

additional information explaining

chemical accident risk. Any federal

reading room or local reading room

providing enhanced access under this

rule, for example, may be a source for

identifying the facility or facilities

whose vulnerable zones extend to the

address entered into the indicator

system, as well as the location of the

facilities. System users will be provided

with the addresses and telephone

numbers of the federal reading rooms.

The system will also supply users with

up-to-date contact information for the

SERCs and LEPCs, and note that only

some LEPCs provide local OCA

information access services. The

indicator system will advise users that,

once they know the name of the facility,

they can use RMP*Info to learn more

about the facility’s chemical accident

history and its accident prevention

measures, and they may contact the

facility directly to gain access to OCA

information.

D. Internet Access to Selected OCA

Information

The final rule makes some items of

OCA information available to the public

through the Internet by posting it on

EPA’s website. Those provisions of the

final rule are identical to those in the

proposed rule. The items of information

that will be posted on the Internet are

those that the risk assessment found

would pose the least serious security

risk if posted on the Internet. The

following items of OCA information will

be posted on the Internet, along with

other RMP data elements available in

EPA’s RMP*Info:

• The concentration of the chemical

(RMP Sections 2.1.b; 3.1.b);

• The physical state of the chemical

(RMP Sections 2.2; 3.2);

• The duration of the chemical

release for the worst-case scenario (RMP

Section 2.7);

• The statistical model used (RMP

Sections 2.3; 3.3; 4.2; 5.2);

• The endpoint used for flammables

for the worst-case scenario (RMP

Section 4.5);

• The wind speed during the

chemical release (RMP Sections 2.8;

3.8);

48128 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

• The atmospheric stability (RMP

Sections 2.9; 3.9);

• The topography of the surrounding

area (RMP Sections 2.10; 3.10);

• The passive mitigation systems

considered (RMP Sections 2.15; 3.15;

4.10; 5.10); and

• The active mitigation systems

considered (RMP Sections 3.16; 5.11).

The final rule precludes the following

items of OCA information from being

posted on the EPA website based upon

the risk assessment’s findings that their

release on the Internet would pose

significant security concerns:

• The name of the chemical involved

(RMP Sections 2.1.a; 3.1.a; 4.1; 5.1);

• The scenario involved (RMP

Sections 2.4; 3.4; 4.3; 5.3);

• The quantity of chemical released

(RMP Sections 2.5; 3.5; 4.4; 5.4);

• The release rate of the chemical

involved for the worst-case scenario

(RMP Section 2.6);

• The release rate of the chemical

involved in the alternative release

scenario (RMP Section 3.6);

• The duration of the chemical

release in the alternative release

scenario (RMP Section 3.7);

• The distance to endpoint (RMP

Sections 2.11; 3.11; 4.6; 5.6);

• The endpoint used for flammables

for the alternative release scenario (RMP

Section 5.5);

• The residential population within

the distance to endpoint (RMP Sections

2.12; 3.12; 4.7; 5.7);

• The public receptors within the

distance to endpoint (RMP Sections

2.13; 3.13; 4.8; 5.8);

• The environmental receptors within

the distance to endpoint (RMP Sections

2.14; 3.14; 4.9; 5.9); and

• Any map or other graphic used to

illustrate a scenario (RMP Sections 2.16;

3.17; 4.11; 5.12).

E. Additional Information on Chemical

Accident Risk

As a supplement to the provisions of

this rule, EPA will make available to the

public additional information on

chemical accident risk through an

Internet website. Some of that

information is currently available

through EPA’s website. RMPs (except

for the OCA information, sections 2

through 5) are currently accessible to

the public through RMP*Info. Through

Envirofacts, the public can easily access

other information about facilities that

have submitted RMPs. EPA’s website

also has links to a web-based chemical

guide (http://chemicalguide.com).

Another helpful link found on the EPA

website that provides valuable

information to the public is the NSC

website (http://www.nsc.org/

xroads.cfm), which is aimed at the news

media and provides suggestions for

information to request of facility

management and local officials, for

approaches to sifting through the

information, and for presenting the

information in a way that helps

communities interpret local RMPs.

EPA is also developing new sources of

information through which the public

can learn about chemical accident risk.

Research on accident histories based on

the data provided in RMPs and other

sources, both national and international

in nature, will be posted on the EPA

website. Moreover, EPA will expand the

number of links to environmental

organizations, industry trade groups,

and academic institutions to provide the

public with a comprehensive means of

finding chemical risk and safety

information. EPA will also provide

guidance that it, along with other

organizations, has developed to assist

community members and interested

groups to work with facility

management and local officials to better

understand and manage the risks posed

by the storage of large quantities of toxic

or flammable chemicals. EPA is

developing examples of facilities and

industries that can serve as models for

‘‘best practices’’ in chemical accident

risk prevention and successful practices

in RMP implementation. EPA and other

organizations are developing

background information about the

nature of chemical accident risk, and

that information will be posted on

EPA’s website when it becomes

available. In addition, through a

cooperative agreement, EPA and Clean

Air Action (a non-profit organization)

will develop a primer for lay persons on

basic risk management terms and

principles that help to provide a basis

for understanding chemical accident

risks. EPA will be making available an

updated list of LEPC, SERC, and other

emergency response contacts.

That information is intended to give

the public a better understanding of the

general nature of the risks associated

with potential accidental releases posed

by hazardous chemicals. In combination

with OCA data about specific facilities,

that information, we expect, will better

enable the public to engage in

productive dialogues at the local, state,

and federal levels to prevent chemical

accidents and to minimize the

consequences of accidents that occur.

EPA will provide that information

through its Internet website, http://

www.epa.gov/ceppo. Much of that

information is already available there.

EPA will continue to supplement that

information as necessary or appropriate

to provide the public with a full

understanding of chemical accident risk

and prevention.

F. Access to OCA Information by

Government Officials and Other

Provisions

The final rule adopts the proposed

provisions for access to OCA

information by federal, state, and local

government officials, as well as

qualified researchers. In accordance

with CAA section

112(r)(7)(H)(ii)(II)(cc)–(ee), the final rule

provides state or local government

officials with access, for official use, to

OCA information for facilities located in

their states, and, at the officials’ request,

for facilities located in other states. Also

in keeping with that section, the final

rule allows state or local government

officials to share for official use OCA

information for facilities within their

state with one another and with state or

local government officials in contiguous

states. Similarly, the final rule allows

federal government officials to share

OCA information with each other for

official use.

The final rule also establishes the

other necessary provisions of the

distribution system for OCA

information. Specifically, it prohibits

the dissemination of OCA information

by government officials and qualified

researchers (researchers who receive

OCA information under CAA section

112(r)(7)(H)(vii)) to the public and to

state and local officials except as

authorized by the rule and a related

CAA provision. It also authorizes the

Administrator to disseminate OCA

information as required by two other

CAA provisions concerning qualified

researchers and a read-only information

technology system (CAA section

112(r)(7)(H)(viii)).

G. Effective Date and Implementation

Schedule

The final rule is effective immediately

so that we may continue to make OCA

information available to government

officials (‘‘covered persons’’) without

interruption. CSISSFRRA and its

legislative history make clear that

Congress intended government officials

to have ongoing access to OCA

information to help them perform their

jobs, as related to chemical emergency

planning, prevention, and response.

CAA section 112(r)(7)(H)(iv) requires

EPA to make OCA information available

to government officials during the

‘‘transition period,’’ the year following

the enactment of CSISSFRRA when the

assessments and the rulemaking must be

conducted. (see 145 Cong. Rec. S7545,

daily ed. June 23, 1999 (statement of

Sen. Chafee)). However, that authority

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48129

ends on the earlier of the date of

promulgation of the regulations or the

one-year anniversary of the enactment

of CSISSFRRA, August 5, 2000. In order

to avoid a gap in government officials’

access to OCA information, we believe

that there is good cause to make the

final rule effective immediately,

pursuant to 5 U.S.C. 553(d)(3).

We will need time to implement and

coordinate the operation of the federal

reading room system. We believe we can

complete that process within three

months and begin opening reading

rooms soon thereafter. We anticipate

that federal reading room access will be

available by December 31, 2000. To

provide public access to OCA

information as soon as possible, we will

not wait for every reading room to be

operational before opening any reading

room. We will begin operating reading

rooms as they become available, and

will post on EPA’s website the locations

of reading rooms as they open.

The vulnerable zone indicator system

will begin operation no later than

October 5, 2000. That will permit us to

develop, test, and deploy the software

systems necessary for the

implementation of VZIS. Further, the

OCA information to be disseminated on

the EPA website will be posted by

December 31, 2000.

IV. Administrative Requirements

A. Docket

The docket is an organized and

complete file of all the information that

we considered in the development of

this rule. The docket is a dynamic file

because it allows members of the public

and industry readily to identify and

locate documents so that they can

effectively participate in the rulemaking

process. Along with the proposed and

promulgated rules and their preambles,

the contents of the docket serve as the

record for purposes of judicial review.

See CAA section 307(d)(7)(A), 42 U.S.C.

7607(d)(7)(A).

The official record for this rulemaking

has been established under Docket No.

A–2000–20 (including comments and

data submitted electronically). A public

version of this record, including

printed, paper versions of electronic

comments, which does not include any

information claimed as Confidential

Business Information, is available for

inspection from 8:00 a.m. to 5:30 p.m.,

Monday through Friday, excluding legal

holidays. The official rulemaking record

is located at the address specified in the

ADDRESSES section at the beginning of

this document.

B. Executive Order 12866

OMB has determined that this rule is

a ‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

‘‘Regulatory Planning and Review’’ (58

FR 51735, October 4, 1993). OMB also

has determined that this rule would not

be economically significant because it

would have an annual effect on the

economy of less than $100 million and

would not affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

state, local, or tribal governments or

communities. Under the terms of

Executive Order 12866, OMB has

reviewed the rule.

C. Executive Order 12988

This rule meets the applicable

standards set forth in sections 3(a) and

3(b)(2) of Executive Order 12988, ‘‘Civil

Justice Reform’’ (61 FR 4729, February

5, 1996).

D. Executive Order 13045

Executive Order 13045, ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks’’ (62 FR 19885,

April 23, 1997), does not apply to this

rule because it is not economically

significant under Executive Order

12866.

E. Executive Order 13084

Under Executive Order 13084,

‘‘Consultation and Coordination with

Indian Tribal Governments,’’ section 3,

Consultation (63 FR 27655, May 19,

1998), federal agencies may not

promulgate a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or the regulating agencies

consult with those governments before

formal promulgation of the rule. This

rule does not significantly or uniquely

affect the communities of Indian tribal

governments or impose substantial

direct compliance costs on those

communities. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule. Nonetheless, we consulted two

tribal organizations that represent tribal

environmental officials (Tribal

Association on Solid Waste &

Emergency Response, and National

Tribal Environmental Council) and

neither expressed any concerns with the

provisions of this rule.

F. Executive Order 13132

Executive Order 13132, ‘‘Federalism’’

(64 FR 43255, August 10, 1999), requires

federal agencies to develop an

accountable process to ensure

‘‘meaningful and timely input by state

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the states, on the relationship

between the national government and

the states, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under section 6 of Executive Order

13132, a federal agency may not issue a

regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the federal

government provides the funds

necessary to pay the direct compliance

costs incurred by state and local

governments, or the agency issuing the

regulation consults with state and local

officials early in the process of

developing the proposed regulation. A

federal agency also may not issue a

regulation that has federalism

implications and that preempts state

law unless the agency consults with

state and local officials early in the

process of developing the proposed

regulation.

This final rule does not have

federalism implications. It will not have

substantial direct effect on the states, on

the relationship between the national

government and the states, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. The statute

itself—CSISSFRRA—currently restricts

the dissemination of OCA information

by state and local officials and

supersedes inconsistent provisions of

state or local law. This rule only slightly

narrows those statutory restrictions,

allowing certain state and local entities

to provide the public with read-only

access to OCA information for local

facilities. Nevertheless, we have

consulted with seven organizations that

represent state and local elected officials

in developing this rule (i.e., National

Governors Association, National

Conference of State Legislatures, U.S.

Conference of Mayors, National League

of Cities, Council on State Governments,

International City/County Management

Association, National Association of

Counties, and National Association of

Towns and Townships). We have also

consulted with state and local

48130 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

representatives of the Accident

Prevention Subcommittee of the CAA

Advisory Committee (under the Federal

Advisory Committee Act (FACA)) about

the implementation of the OCA

provisions of CSISSFRRA. In response

to concerns some have raised about the

potential chilling effect of CSISSFRRA’s

restrictions on state and local officials’

willingness to obtain OCA information

and to communicate the substance of

that information to the public, this rule

includes a provision clarifying that state

and local officials can share OCA data

with the public as long as they do so in

a way that does not disseminate or

permit mechanical replication of the

OCA sections of RMPs or provide access

to EPA’s OCA database. As noted above,

this rule also authorizes some state and

local officials to share OCA information

itself in certain ways.

Section 4 of the Executive Order

contains additional requirements for

rules that preempt state or local law,

even if those rules do not have

federalism implications (i.e., the rules

will not have substantial direct effects

on the states, on the relationship

between the national government and

the states, or on the distribution of

power and responsibilities among the

various levels of government). Those

requirements include providing all

affected state and local officials notice

and an opportunity for appropriate

participation in the development of the

regulation. If the preemption is not

based on express or implied statutory

authority, EPA also must consult, to the

extent practicable, with appropriate

state and local officials regarding the

conflict between state law and federally

protected interests within the agency’s

area of regulatory responsibility.

Consequently, we consulted to the

extent practicable with the seven

organizations mentioned above. Other

than requesting further clarification on

the proposed rule, none of those

organizations raised federalism

concerns with the rule’s approach.

G. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

of 1980 (5 U.S.C. 601 et seq.), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996, agencies are required to give

special consideration to the effect of

federal regulations on small entities and

to consider regulatory options that

might mitigate any such effect.

However, an agency need not prepare a

regulatory flexibility analysis if the rule

would not have a significant economic

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and small government

jurisdictions.

In accordance with 5 U.S.C. 605(b),

we certify that this rule does not have

a significant economic impact on a

substantial number of small entities.

Although the rule authorizes small

government jurisdictions to provide

read-only access to OCA information, it

does not require those jurisdictions to

provide that access. This rule contains

a prohibition on local government

officials (and other government officials)

disclosing OCA information to the

public except in authorized ways, but

that prohibition already existed under

CAA section 112(r)(7)(H)(v). Moreover,

we do not expect that any burden

resulting indirectly from the provisions

of this rule will have a significant

economic impact on the operations of

local governments.

H. Paperwork Reduction Act

The information collection

requirements in this rule have been

submitted for approval to OMB under

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq. An Information Collection

Request (ICR) document has been

prepared by EPA (ICR No. 1981.01) and

a copy may be obtained from Sandy

Farmer by mail at Collection Strategies

Division, U.S. Environmental Protection

Agency (2822), 1200 Pennsylvania Ave.,

N.W., Washington, DC 20460; by e-mail

at farmer.sandy@epamail.epa.gov; or by

calling (202) 260–2740. A copy may also

be downloaded off the Internet at http:/

/www.epa.gov/icr. The ICR for the

proposed rule was listed as ICR No.

1656.08. To avoid confusion with the

ICR for the full RMP Program (i.e., RMP

Program Requirements and Petitions to

Modify the List of Regulated Substances

under section 112(r) of the CAA), the

ICR has been changed for the final rule.

The information requirements are not

enforceable until OMB approves them.

This rule will impose minimal

information collection requirements but

will require record keeping. The

respondent universe for this rule is state

and local officials and members of the

public.

None of the respondent activities for

state and local agencies are mandatory

and all depend on the state or local

agency deciding to obtain OCA

information and/or communicating the

substance of the information or the

information itself to the public. The

respondent activities for those agencies

include reading and understanding the

Security Notice to federal, state, and

local officials and researchers;

requesting OCA information and

certifying that they are covered persons;

providing secure storage for the CD Rom

or paper copies when not in use;

learning how to use the database and

software, if needed, to produce a copy

of OCA information; providing a

location for the public to review OCA

information for local facilities; ensuring

that members of the public do not

remove or mechanically copy OCA

information they review; and making

OCA data available in formats other

than the RMP format.

The number of respondents

undertaking one or more of these

activities is estimated to be at least one

agency in each state, territory, and the

District of Columbia. These agencies are

assumed to be the SERCs and may be

environmental protection agencies,

emergency management agencies, or

both. Based on a recent survey, EPA

estimates that there are 1,500 active

LEPCs (in compliance with EPCRA).

These agencies may request OCA

information from EPA for their own use

for emergency planning. Out of these,

we estimate that only 1,000 LEPCs will

be providing local access by the third

year covered by this ICR. EPA estimates

the total burden hours for state and local

agencies to be 86,000 hours annually

(258,000 hours for three years) at a cost

of $2,400,000 annually ($7,200,000 for

three years).

For members of the public, the

respondent activity includes calling for

an appointment, displaying

photographic identification, and signing

a sign-in sheet and a certification form

at a federal reading room. If an

individual would like to obtain

information on local facilities, he or she

would need to provide documentation

demonstrating his or her place of

residence or employment. In addition,

members of the public are assumed to

use the VZIS system and to make

follow-up calls to obtain additional

information. It is assumed that

approximately 20,000 people will use

the VZIS system each year and that

5,000 of those will seek additional

information. Those individuals without

access to the Internet will be able to call

an EPA toll-free number or send the

request by mail. The total burden hours

for the public are estimated to be 14,000

hours annually (42,000 hours for three

years) at a cost of $293,000 annually

($879,000 for three years).

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, disclose, or

provide information to or for a federal

agency. That includes the time needed

to review instructions to develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, verifying,

processing, maintaining, disclosing, and

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48131

providing information; to adjust existing

ways to comply with any previously

applicable instructions and

requirements; to train personnel; to

search data sources; to complete and

review the collection of information;

and to transmit or otherwise disclose

the information.

An agency may not conduct or

sponsor, and a person is not required to

respond to, a collection of information

unless the collection displays a

currently valid OMB control number.

The OMB control numbers for EPA’s

regulations are listed in 40 CFR Part 9

and 48 CFR Chapter 15. The OMB

control numbers for the information

collection requirements in this rule will

be listed in an amendment to 40 CFR

part 9 in a subsequent Federal Register

document after OMB approves the ICR.

I. Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by state, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year, and it contains no

requirements that might significantly or

uniquely affect small governments. This

rule requires small governments that

wish to obtain OCA information to

request it, and once they obtain it, they

will be prohibited from disseminating it

except in accordance with the rule. We

do not expect that those provisions will

impose a significant burden. Moreover,

certain members of small governments

would be authorized, but not required,

to provide public access to OCA

information in a manner that is less

burdensome than would be required of

federal covered persons. Therefore, no

actions are deemed necessary under the

Unfunded Mandates Reform Act of

1995.

J. Small Business Regulatory

Enforcement Fairness Act of 1996

This rule is not a major rule as

defined by section 251 of the Small

Business Regulatory Enforcement

Fairness Act of 1996, 5 U.S.C. 804. This

rule will not result in an annual effect

on the economy of $100 million or

more; a major increase in costs or prices;

or significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

K. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This rule is not a ‘‘major rule’’ as

defined by 5 U.S.C. § 804(2). This rule

will be effective August 4, 2000.

V. Judicial Review

Under section 307(b)(1) of the CAA,

judicial review of this final rule is

available only by filing a petition for

review in the U.S. Court of Appeals for

the District of Columbia Circuit within

60 days of publication of this rule.

Under section 307(b)(2) of the CAA, the

requirements established by the final

rule may not be challenged later in civil

or criminal proceedings brought to

enforce these requirements. This rule

has been promulgated pursuant to CAA

section 307(d).

List of Subjects in 40 CFR Part 1400

Environmental protection, Chemicals,

Chemical accident prevention.

Dated: July 31, 2000.

Janet Reno,

Attorney General.

Dated: July 31, 2000.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, EPA and DOJ establish

chapter IV of title 40 of the Code of

Federal Regulations, consisting of

subchapter A, part 1400, as follows:

CHAPTER IV—ENVIRONMENTAL

PROTECTION AGENCY AND DEPARTMENT

OF JUSTICE

SUBCHAPTER A—ACCIDENTAL RELEASE

PREVENTION REQUIREMENTS; RISK

MANAGEMENT PROGRAMS UNDER THE

CLEAN AIR ACT SECTION 112(r)(7);

DISTRIBUTION OF OFF-SITE

CONSEQUENCE ANALYSIS INFORMATION

PART 1400—DISTRIBUTION OF OFFSITE CONSEQUENCE ANALYSIS

INFORMATION

Subpart A—General

Sec.

1400.1 Purpose.

1400.2 Definitions.

Subpart B—Public Access

1400.3 Public access to paper copies of offsite consequence analysis information.

1400.4 Vulnerable zone indicator system.

1400.5 Internet access to certain off-site

consequence analysis data elements.

1400.6 Enhanced local access.

Subpart C—Access to Off-Site

Consequence Analysis Information by

Government Officials

1400.7 In general.

1400.8 Access to off-site consequence

analysis information by federal

government officials.

1400.9 Access to off-site consequence

analysis information by state and local

government officials.

Subpart D—Other Provisions

1400.10 Limitation on public

dissemination.

1400.11 Limitation on dissemination to

state and local government officials.

1400.12 Qualified researchers.

1400.13 Read-only database.

Authority: 42 U.S.C. 7412(r)(7)(H)(ii).

Subpart A—General

§ 1400.1 Purpose.

Stationary sources subject to the

Chemical Accident Prevention

Provisions of 40 CFR part 68 are

required to analyze the potential harm

to public health and welfare of

hypothetical chemical accidents and

submit the results of their analyses to

the U.S. Environmental Protection

Agency as part of risk management

plans. This part governs access by the

public and by government officials to

the portions of risk management plans

containing the results of those analyses

and certain related materials. This part

also restricts dissemination of that

information by government officials.

§ 1400.2 Definitions.

For the purposes of this part:

(a) Accidental release means an

unanticipated emission of a regulated

substance or other extremely hazardous

substance into the ambient air from a

stationary source.

(b) Administrator means the

Administrator of the U.S.

Environmental Protection Agency or his

or her designated representative.

(c) Attorney General means the

Attorney General of the United States or

his or her designated representative.

(d) Federal government official

means—

(1) An officer or employee of the

United States; and

(2) An officer or employee of an agent

or contractor of the federal government.

(e) State or local government official

means—

(1) An officer or employee of a state

or local government;

48132 Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations

(2) An officer or employee of an agent

or contractor of a state or local

government;

(3) An individual affiliated with an

entity that has been given, by a state or

local government, responsibility for

preventing, planning for, or responding

to accidental releases, such as a member

of a Local Emergency Planning

Committee (LEPC) or a State Emergency

Response Commission (SERC), or a paid

or volunteer member of a fire or police

department; or

(4) An officer or employee or an agent

or contractor of an entity described in

paragraph (e)(3) of this section.

(f) LEPC means a Local Emergency

Planning Committee created under the

Emergency Planning and Community

Right-to-Know Act, 42 U.S.C. 11001 et

seq.

(g) Member of the public or person

means an individual.

(h) Official use means an action of a

federal, state, or local government

agency or an entity described in

paragraph (e)(3) of this section intended

to carry out a function relevant to

preventing, planning for, or responding

to accidental releases.

(i) Off-site consequence analysis

(OCA) information means sections 2

through 5 of a risk management plan

(consisting of an evaluation of one or

more worst-case release scenarios or

alternative release scenarios) for an

identified facility and any electronic

database created by the Administrator

from those sections.

(j) Off-site consequence analysis

(OCA) data elements means the results

of the off-site consequence analysis

conducted by a stationary source

pursuant to 40 CFR part 68, subpart B,

when presented in a format different

than sections 2 through 5 of a risk

management plan or any Administratorcreated electronic database.

(k) Off-site consequence analysis

(OCA) rankings means any statewide or

national rankings of identified

stationary sources derived from OCA

information.

(l) Qualified researcher means a

researcher who receives OCA

information pursuant to 42 U.S.C.

7412(r)(7)(H)(vii).

(m) Related local government

agencies means local government

agencies, such as police, fire, emergency

management, and planning

departments, that are involved in

chemical emergency planning,

prevention, or response.

(n) Related state government agencies

means state government agencies, such

as emergency management,

environmental protection, health, and

natural resources departments, that are

involved in chemical emergency

planning, prevention, or response.

(o) Risk management plan (RMP)

means a risk management plan

submitted to the Administrator by an

owner or operator of a stationary source

pursuant to 40 CFR part 68, subpart G.

(p) SERC means a State Emergency

Response Commission created under the

Emergency Planning and Community

Right-to-Know Act, 42 U.S.C. 11001 et

seq.

(q) State has the same meaning as

provided in 42 U.S.C. 7602(d) (a state,

the District of Columbia, the

Commonwealth of Puerto Rico, the

Virgin Islands, Guam, American Samoa,

and the Commonwealth of the Northern

Mariana Islands).

(r) Stationary source has the same

meaning as provided in 40 CFR part 68

subpart A, § 68.3.

(s) Vulnerable zone means the

geographical area that could be affected

by a worst-case or alternative scenario

release from a stationary source, as

indicated by the off-site consequence

analysis reported by the stationary

source in its risk management plan

pursuant to the applicable requirements

of 40 CFR Part 68. It is defined as a

circle, the center of which is the

stationary source and the radius of

which is the ‘‘distance-to-endpoint,’’ or

the distance a toxic or flammable cloud,

overpressure, or radiant heat would

travel after being released and before

dissipating to the point that it no longer

threatens serious short-term harm to

people or the environment.

Subpart B—Public Access

§ 1400.3 Public access to paper copies of

off-site consequence analysis information.

(a) General. The Administrator and

the Attorney General shall ensure that

any member of the public has access to

a paper copy of OCA information in the

manner prescribed by this section.

(b) Reading-room access. Paper copies

of OCA information shall be available in

at least 50 reading rooms geographically

distributed across the United States and

its territories. The reading rooms shall

allow any person to read, but not

remove or mechanically reproduce, a

paper copy of OCA information, in

accordance with paragraphs (c) through

(g) of this section and procedures

established by the Administrator and

Attorney General.

(c) Limited number. Any person shall

be provided with access to a paper copy

of the OCA information for up to 10

stationary sources located anywhere in

the country, without geographical

restriction, in a calendar month.

(d) Additional access. Any person

also shall be provided with access to a

paper copy of the OCA information for

stationary sources located in the

jurisdiction of the LEPC where the

person lives or works and for any other

stationary source that has a vulnerable

zone that extends into that LEPC’s

jurisdiction.

(e) Personal identification for access

to OCA information without

geographical restriction. Reading rooms

established under this section shall

provide a person with access to a paper

copy of OCA information under

paragraph (c) of this section only after

a reading room representative has

(1) Ascertained the person’s identity

by viewing photo identification issued

by a federal, state, or local government

agency to the person; and

(2) Obtained the person’s signature on

a sign-in sheet and a certification that

the person has not received access to

OCA information for more than 10

stationary sources for that calendar

month.

(f) Personal identification for access to

local OCA information. Reading rooms

established under this section shall

provide a person with access to a paper

copy of OCA information under

paragraph (d) of this section only after

a reading room representative has

(1) Ascertained where the person lives

or works by viewing appropriate

documentation; and

(2) Obtained the person’s signature on

a sign-in sheet.

(g) Record keeping. Reading room

personnel shall keep records of reading

room use and certifications in

accordance with procedures established

by the Administrator and the Attorney

General. These records shall be retained

for no more than three years. Federal

reading rooms will not index or

otherwise manipulate the sign-in sheets

according to individuals’ names, except

in accordance with the Privacy Act.

§ 1400.4 Vulnerable zone indicator system.

(a) In general. The Administrator shall

provide access to a computer-based

indicator that shall inform any person

located in any state whether an address

specified by that person might be within

the vulnerable zone of one or more

stationary sources, according to the data

reported in RMPs. The indicator also

shall provide information about how to

obtain further information.

(b) Methods of access. The indicator

shall be available on the Internet or by

request made by telephone or by mail to

the Administrator to operate the

indicator for an address specified by the

requestor. SERCs, LEPCs, and other

related state or local government

agencies are authorized and encouraged

to operate the indicator as well.

Federal Register / Vol. 65, No. 151 / Friday, August 4, 2000 / Rules and Regulations 48133

§ 1400.5 Internet access to certain off-site

consequence analysis data elements.

The Administrator shall include only

the following OCA data elements in the

risk management plan database

available on the Internet:

(a) The concentration of the chemical

(RMP Sections 2.1.b; 3.1.b);

(b) The physical state of the chemical

(RMP Sections 2.2; 3.2);

(c) The statistical model used (RMP

Sections 2.3; 3.3; 4.2; 5.2);

(d) The endpoint used for flammables

in the worst-case scenario (RMP Section

4.5);

(e) The duration of the chemical

release for the worst-case scenario (RMP

Section 2.7);

(f) The wind speed during the

chemical release (RMP Sections 2.8;

3.8);

(g) The atmospheric stability (RMP

Sections 2.9; 3.9);

(h) The topography of the surrounding

area (RMP Sections 2.10; 3.10);

(i) The passive mitigation systems

considered (RMP Sections 2.15; 3.15;

4.10; 5.10); and

(j) The active mitigation systems

considered (RMP Sections 3.16; 5.11).

§ 1400.6 Enhanced local access.

(a) OCA data elements. Consistent

with 42 U.S.C. 7412(r)(7)(H)(xii)(II),

members of LEPCs and SERCs, and any

other state or local government official,

may convey to the public OCA data

elements orally or in writing, as long as

the data elements are not conveyed in

the format of sections 2 through 5 of an

RMP or any electronic database

developed by the Administrator from

those sections. Disseminating OCA data

elements to the public in a manner

consistent with this provision does not

violate 42 U.S.C. 7412(r)(7)(H)(v) and is

not punishable under federal law.

(b) OCA information. (1) LEPCs and

related local government agencies are

authorized and encouraged to allow any

member of the public to read, but not

remove or mechanically copy, a paper

copy of the OCA sections of RMPs (i.e.,

sections 2 through 5) for stationary

sources located within the jurisdiction

of the LEPC and for any other stationary

source that has a vulnerable zone that

extends into that jurisdiction.

(2) LEPCs and related local

government agencies that provide readonly access to the OCA sections of

RMPs under this paragraph (b) are not

required to limit the number of

stationary sources for which a person

can gain access, ascertain a person’s

identity or place of residence or work,

or keep records of public access

provided.

(3) SERCs and related state

government agencies are authorized and

encouraged to allow any person to read,

but not remove or mechanically copy, a

paper copy of the OCA sections of RMPs

for the same stationary sources that the

LEPC in whose jurisdiction the person

lives or works would be authorized to

make available to that person under

paragraph (b)(1) of this section.

(4) Any LEPC, SERC, or related local

or state government agency that allows

a person to read the OCA sections of

RMPs in a manner consistent with this

paragraph (b) shall not be in violation of

42 U.S.C. 7412(r)(7)(H)(v) or any other

provision of federal law.

Subpart C—Access to off-site

consequence analysis information by

government officials.

§ 1400. 7 In general.

The Administrator shall provide OCA

information to government officials as

provided in this subpart. Any OCA

information provided to government

officials shall be accompanied by a copy

of the notice prescribed by 42 U.S.C.

7412(r)(7)(H)(vi).

§ 1400.8 Access to off-site consequence

analysis information by federal government

officials.

The Administrator shall provide any

federal government official with the

OCA information requested by the

official for official use. The

Administrator shall provide the OCA

information to the official in electronic

form, unless the official specifically

requests the information in paper form.

The Administrator may charge a fee to

cover the cost of copying OCA

information in paper form.

§ 1400.9 Access to off-site consequence

analysis information by state and local

government officials.

(a) The Administrator shall make

available to any state or local

government official for official use the

OCA information for stationary sources

located in the official’s state.

(b) The Administrator also shall make

available to any state or local

government official for official use the

OCA information for stationary sources

not located in the official’s state, at the

request of the official.

(c) The Administrator shall provide

OCA information to a state or local

government official in electronic form,

unless the official specifically requests

the information in paper form. The

Administrator may charge a fee to cover

the cost of copying OCA information in

paper form.

(d) Any state or local government

official is authorized to provide, for

official use, OCA information relating to

stationary sources located in the

official’s state to other state or local

government officials in that state and to

state or local government officials in a

contiguous state.

Subpart D—Other Provisions

§ 1400.10 Limitation on public

dissemination.

Except as authorized by this part and

by 42 U.S.C. 7412(r)(7)(H)(v)(III),

federal, state, and local government

officials, and qualified researchers are

prohibited from disseminating OCA

information and OCA rankings to the

public. Violation of this provision

subjects the violator to criminal liability

as provided in 42 U.S.C. 7412(r)(7)(H)(v)

and civil liability as provided in 42

U.S.C. 7413.

§ 1400.11 Limitation on dissemination to

state and local government officials.

Except as authorized by this part and

by 42 U.S.C. 7412(r)(7)(H)(v)(III),

federal, state, and local government

officials, and qualified researchers are

prohibited from disseminating OCA

information to state and local

government officials. Violation of this

provision subjects the violator to civil

liability as provided in 42 U.S.C. 7413.

§ 1400.12 Qualified researchers.

The Administrator is authorized to

provide OCA information, including

facility identification, to qualified

researchers pursuant to a system

developed and implemented under 42

U.S.C. 7412(r)(7)(H)(vii), in consultation

with the Attorney General.

§ 1400.13 Read-only database.

The Administrator is authorized to

establish, pursuant to 42 U.S.C.

7412(r)(7)(H)(viii), an information

technology system that makes available

to the public off-site consequence

analysis information by means of a

central database under the control of the

federal government that contains

information that users may read, but

that provides no means by which an

electronic or mechanical copy of the

information may be made.

[FR Doc. 00–19785 Filed 8–3–00; 8:45 am]

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