[Federal Register Volume 73, Number 56 (Friday, March 21, 2008)]
[Rules and Regulations]
[Pages 15051-15052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1059]

Rules and Regulations
                                                Federal Register

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Federal Register / Vol. 73, No. 56 / Friday, March 21, 2008 / Rules 
and Regulations

[[Page 15051]]


6 CFR Part 27

RIN 1601-AA41

Clarification to Chemical Facility Anti-Terrorism Standards; 

AGENCY: Department of Homeland Security.

ACTION: Clarification.


SUMMARY: This notice clarifies how certain provisions of the Chemical 
Facility Anti-Terrorism Standards (CFATS) apply to the Chemical of 
Interest (COI) propane, which the Department of Homeland Security (DHS 
or Department) understands to contain at least 87.5% of the chemical 
propane. Specifically, this notice clarifies how the Screening 
Threshold Quantity and certain counting rule provisions apply to the 
COI propane.

DATES: Effective Dates: Effective March 21, 2008.

FOR FURTHER INFORMATION CONTACT: Dennis Deziel, Infrastructure Security 
Compliance Division, Department of Homeland Security, 703-235-5263.

SUPPLEMENTARY INFORMATION: Section 550 of the Homeland Security 
Appropriations Act of 2007 provided the Department with authority to 
promulgate interim final regulations for the security of certain 
chemical facilities in the United States. See Pub. L. 109-295, sec. 
550. On December 28, 2006, the Department issued an Advance Notice of 
Rulemaking seeking comment on the significant issues and regulatory 
text (see 71 FR 78276) for such rulemaking, and on April 9, 2007, the 
Department published an Interim Final Rule (IFR) establishing the 
Chemical Facility Anti-Terrorism Standards (CFATS), 6 CFR Part 27 (see 
72 FR 17688).
    The IFR, except for Appendix A to Part 27, went into effect on June 
8, 2007. Appendix A to the IFR contained a tentative list of Chemicals 
of Interest (COIs) and corresponding Screening Threshold Quantities 
(STQs). DHS accepted comments on the tentative list of COIs and STQs. 
In an Appendix A Final Rule published on November 20, 2007, the 
Department responded to the many comments received and provided a final 
list of COIs and STQs. See 72 FR 65396. Pursuant to 6 CFR 
27.210(a)(1)(i), any facility that possesses any of the COIs listed in 
Appendix A at or above any applicable STQ must complete and submit a 
Top-Screen questionnaire to DHS. See 6 CFR 27.200(b)(2).
    Among other revisions to the final Appendix A, DHS set a special 
STQ for the COI propane.\1\ DHS listed the COI propane as a release-
flammable COI with an STQ of 60,000 pounds; this is in contrast to the 
10,000 pound STQ that DHS used for most other release-flammable COI.\2\ 
In addition, the Appendix A Final Rule included a special rule for 
calculating whether a facility meets the STQ for the COI propane.\3\ 
The reasons for the unique STQ provisions for the COI propane are 
detailed in the preamble to the Appendix A Final Rule. See 72 FR 65406-
65407, 65409-65410.

    \1\ In this notice, DHS clarifies what is meant by the Chemical 
of Interest propane (or COI propane), as opposed to other products 
that contain some amount of the chemical propane.
    \2\ In the tentative list of chemicals in the IFR, DHS had 
suggested an STQ of 7,500 pounds for all release-flammable COI, 
including the COI propane. See 72 FR 17743 (April 9, 2007).
    \3\ Under 6 CFR Sec.  27.203(b)(3), in calculating whether a 
facility possesses an amount that meets the 60,000 pound STQ for the 
COI propane, a facility need not include propane in tanks of 10,000 
pounds or less.

    The Appendix A Final Rule also included provisions on how 
facilities should treat mixtures of COI (known as the mixtures 
provisions). See 6 CFR 27.204. Under certain conditions, 6 CFR 
27.204(a)(2) (the release-flammable mixtures rule) provides that if a 
release-flammable COI is present in a mixture in a concentration equal 
to or greater than one percent by weight, the facility shall count the 
entire amount of the mixture toward the STQ for that COI.
    Since publication of the Appendix A Final Rule, the Department has 
received numerous inquiries about the STQ provisions for the COI 
propane and about the applicability of the release-flammable mixture 
provisions to products that contain the COI propane and to other 
products that contain some propane. To respond to those inquiries and 
alleviate any confusion, the Department is publishing this notice to 
provide clarification on this matter.
    The Appendix A Final Rule was drafted with the understanding that 
the COI propane consists predominantly of the chemical propane, in 
combination with other flammable gases--such as butane, pentane, 
ethane, and/or propylene (which are also release-flammable COI under 
Appendix A). That understanding was likewise in mind when the 
Department developed the special STQ (i.e., 60,000 pounds) and STQ 
counting rule for the COI propane (see 6 CFR 27.204(b)(3)). It was, and 
is, commonly understood, however, that not every product containing any 
amount of the chemical propane is considered ``propane'' for commercial 
or other purposes.
    As is well-known, the COI propane typically consists predominantly 
of the chemical propane in combination with other release-flammable 
COI, as noted above.\4\ Within the propane industry, it is very typical 
for the COI propane to contain at least 87.5 percent of the chemical 
propane. This is reflected in the Material Safety Data Sheets (MSDS) 
for Odorized Propane of many propane companies as well as in the model 
MSDS from the National Propane Gas Association (NPGA).\5\ This is 
consistent with DHS's understanding of the COI propane.

    \4\ The COI propane may also contain relatively small amounts of 
additives (such as odorants) or contaminants.
    \5\ The model MSDS from NPGA can be found on the NPGA Web site 
at http://www.npga.org/files/public/Tech_Bulletin_NPGA_210-96.pdf.

    Since DHS intends the COI propane to refer to products containing 
at least 87.5 percent of propane, as well as other release-flammable 
COI, it follows that the release-flammable mixtures rule does not apply 
to such products. In fact, it would not make sense to apply the 
release-flammable mixtures rule to the combination of chemicals that 
constitute the COI propane because that would largely negate the 
intended effect of the 60,000 pound STQ and the special STQ counting 
rule for the COI propane.\6\ By contrast, the release-

[[Page 15052]]

flammable mixtures rule does apply to products that are a combination 
of less than 87.5 percent propane and other release-flammable COI, 
since such mixtures are not themselves the COI propane.\7\

    \6\ For example, if a combination of 90% propane and 10% butane 
were subject to the release-flammable mixtures provision, as little 
as 10,000 pounds of that product would meet the STQ for butane, and 
thus trigger the Top-Screen reporting requirement of CFATS. This 
effect would be inconsistent with the purpose of the special 10,000 
pound counting rule and the 60,000 pound STQ for the COI propane and 
with DHS's express intent not to subject facilities to the Top-
Screen requirement when the only COI that would otherwise trigger 
that requirement is less than 60,000 pounds of COI propane. See 72 
FR 65406-65407, 65409-65410.
    \7\ The statement in the Appendix A Final Rule preamble that the 
mixtures provisions for propane are the same as for all other 
release-flammables, 72 FR 65407, should be read in this intended 
context. Since it would not be logical or reasonable to apply the 
release-flammable mixtures provision to the COI propane (products 
containing at least 87.5% propane), the preamble statement was 
intended to cover mixtures containing less than 87.5% propane.

Robert Stephan,
Assistant Secretary for Infrastructure Protection, Department of 
Homeland Security.
[FR Doc. 08-1059 Filed 3-18-08; 12:04 pm]