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The Department of Homeland Security (DHS) requires chemical facilities that possess a chemical of interest (COI) listed on Appendix A above the standard threshold quantity (STQ) tp complete the on-line, so called, “top-screen” survey of their security risk.  DHS plans to inform somewhere around 5 to 10 percent of the chemical facilities that complete the top-screen that they are “high risk” and further regulated.  Chemical facilities must update their top-screen information within 60 days of knowledge that they do or will qualify to submit the top-screen.

Since Appendix A applies to a wide range of chemicals in all sorts of processes and distribution systems, DHS regulations and written interpretations are sometimes above the level of detail needed to understand how they should be applied to specific circumstances.  Presented below are a series of Q&As that should help blasting companies understand how CFATS impacts their operations.   The interpretations are based on IME’s reading of the Federal Register Notices of Final Rule, on-line DHS information, and discussions with top-level DHS officials. 

The interpretations are IME’s opinion and do not constitute legal advice.

Q:  I registered in preparation to submit the top-screen, but now I do not qualify under Appendix A.  Do I need to un-register or something?
A:  No, you simply fall off the radar.  In fact, DHS does not want to hear from you because they will be busy enough with the qualifiers. 

Q:  What is the first entry for ammonium nitrate (AN) (with more than 0.2 percent...) for? 
A:  The material shipped as UN 0222.

Q:  What is the second entry for AN (solid over 23% nitrogen…) for? 
A:  AN prill and AN-based emulsions and watergels classified as solid Class 5 materials by US Department of Transportation (DOT).

Q:  There is more than 33% AN in bagged ANFO.  Does that make it a COI?
A:  No, ANFO, like all Division 1.5 materials are not on Appendix A.

Q:  Is concentrated AN solution on Appendix A?
A:  As long as it remains a liquid, no.

Q:  Is a DOT Class 5 emulsion on Appendix A? 
A:  If it is a solid, yes.  If it is a liquid, no.  Use DOT definition to determine.

Q:  Is AN prill blended with emulsion on Appendix A?
A:  If the blend is 33 percent or more AN prill, or the emulsion is a solid, yes.

Q:  Is ANFO blended with liquid emulsion on Appendix A?
A:  Probably not, because you have a mixture of two materials, neither of which are COIs.  But if the blend became a solid, contained 33 percent or more AN, and was classed Division 5.1, it would be a COI.

Q:  Is ANFO blended with a solid emulsion on Appendix A?
A:  If the blend has 33 percent or more AN coming from the emulsion only and was Class 5 insensitive, yes.

Q:  Is “fudged” Class 5 emulsion on Appendix A?
A:  If the liquid becomes a solid and it will be recycled, yes.  If the fudged material will be wasted, no.

Q:  Where does it state in the regulation that from Class 1, only certain Division 1.1 materials are included on Appendix A?
A:  This is stated in the preamble to the final rule on Appendix A in the Federal Register (FR).  See the third column on page 65402 of the November 20, 2007 edition of the FR.  Here, DHS says “Although DHS had included explosives from the six DOT explosives divisions in the proposed Appendix A, DHS is only including Division 1.1 explosives in this final Appendix.”

Q:  There is a general exception for COI in “articles.”  What does DHS consider an article? 
A:  DHS uses the EPA definition of “article” found in 40 CFR 68.3.  The EPA definition, in turn, references an OSHA definition that states:  “Article means a manufactured item other than a fluid or particle:  (i) which is formed to a specific shape or design during manufacture; (ii) which has end use functions(s) dependent in whole or in part upon its shape or design during end use; and (iii) which under normal conditions of use does not release more than very small quantities of a hazardous chemical, and (iv) does not pose a physical hazard to health risk to employees.” 

Q:  Does CFATS apply to a transportation-only facility?
A:  No.

Q:  What does DHS consider as “in transportation?” 
A:  DHS is using the EPA’s interpretation of “transportation” as found and applied under the Risk Management Plan (RMP) rule in 40 CFR 68.3.

Q:  When calculating the STQ for theft COI at 6 CFR 27.203(c), how complete must a DOT-authorized package be to be counted?
A:  At a minimum, in a ready-for-transportation package except for the markings and labels.

Q:  Do I count the COI on a delivery truck making a "milk run" or LTL towards my STQ?
A:  No.  You only count the amount of COI off-loaded at your site.