65396 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

6 CFR Part 27 

[DHS–2006–0073] 

RIN 1601–AA41 

Appendix to Chemical Facility AntiTerrorism Standards 

AGENCY: Department of Homeland 

Security. 

ACTION: Final rule. 

SUMMARY: This final rule revises the list 

of chemicals of interest, or COI, which 

the Department of Homeland Security 

(DHS or the Department) included as 

Appendix A to the Chemical Facility 

Anti-Terrorism Standards Interim Final 

Rule. Appendix A lists chemicals of 

interest and screening threshold 

quantities, or STQs. Any facility that 

possesses (or later comes into 

possession of) the listed chemicals in 

quantities that meet or exceed the STQ 

for any applicable security issue must 

complete and submit a Top-Screen. This 

will assist the Department in 

determining whether a facility presents 

a high level of security risk. 

In this final rule, DHS, among other 

things: (i) Adjusts the STQs for certain 

COI; (ii) defines the specific security 

issue or issues implicated by each 

chemical of interest, and in some cases, 

establishes different STQs for COI based 

upon the security issue presented; and 

(iii) adds provisions that instruct 

facilities on how to calculate the 

quantities of COI that they have in their 

possession. 

These refinements to Appendix A will 

assist the Department in more precisely 

identifying facilities that may be 

designated as high risk, while reducing 

the burden on facilities that possess 

chemicals in smaller amounts. 

EFFECTIVE DATES: The effective date of 

Appendix A to part 27, as added on 

April 9, 2007 (72 FR 17688) and revised 

by this rule is November 20, 2007. 

Additionally, the regulations published 

in this document are effective November 

20, 2007. The incorporation by reference 

of certain publications listed in the rule 

is approved by the Director of the 

Federal Register as of November 20, 

2007. 

FOR FURTHER INFORMATION CONTACT: 

Marybeth Kelliher, Chemical Security 

Compliance Division, Department of 

Homeland Security, 703–235–5263. 

SUPPLEMENTARY INFORMATION: Note that 

for brevity, all references to CFR parts 

will be to parts in Title 6 of the Code 

of Federal Regulations (6 CFR), unless 

otherwise noted. 

Table of Contents 

I. Background 

II. The Final Rule: The Revised List of 

Chemicals 

A. Overall Approach to Appendix A 

B. Effect of a Final Appendix A 

C. Provisions by Security Issue 

1. Release-Toxics and Release-Flammables 

2. Release-Explosives 

3. Theft/Diversion-Chemical Weapons/ 

Chemical Weapons Precursors 

4. Theft/Diversion-Weapons of Mass Effect 

5. Theft/Diversion-Explosives/Improvised 

Explosive Device Precursors 

6. Sabotage/Contamination 

D. Chemicals With a Specialized Approach 

1. Propane 

2. Chlorine 

3. Ammonium Nitrate 

E. Technical Corrections 

III. Discussion of Comments 

A. Specific Chemicals or Types of 

Chemicals 

1. In General 

2. Propane 

3. Chlorine 

4. Ammonium Nitrate 

5. Acetone and Urea 

6. Chemical Weapons and Chemical 

Weapons Precursors 

7. Explosives 

8. Hydrogen Peroxide 

B. Coverage of Appendix A 

1. Colleges and Universities 

2. Medical Research Organizations and 

Similar Laboratories 

3. Farms and the Agricultural Industry; 

Fumigation Industry 

4. Overlap With Other Federal Entities 

5. Concerns About Being Over-Inclusive 

C. Screening Threshold Quantities 

1. In General 

2. Modifying the ‘‘Any Amount’’ STQ 

3. Mixtures and Solutions 

D. Revisions to the COI List 

1. Technical Corrections 

2. Formatting and Approach 

E. Other Comments 

1. Procedural Issues 

2. Compliance Issues 

3. Miscellaneous Comments 

IV. Regulatory Analyses 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Regulatory Flexibility Act 

Abbreviations and Terms Used in This 

Document 

ACG—A Commercial Grade 

AN—Ammonium Nitrate 

APA—A Placarded Amount 

ASP—Alternative Security Program 

CAS—Chemical Abstract Service 

CGA—Compressed Gas Association 

COI—Chemicals of Interest 

CSAC—Chemical Security Analysis Center 

CSAT—Chemical Security Assessment Tool 

CUM 100g—Cumulative STQ of 100 grams 

for Designated Chemical Weapons 

CVI—Chemical-terrorism Vulnerability 

Information 

CW—Chemical Weapons 

CWC—Chemical Weapons Convention 

CWP—Chemical Weapons Precursors 

DOT—U.S. Department of Transportation 

EPA—Environmental Protection Agency 

EXP—Explosives 

FBI—Federal Bureau of Investigation 

IED—Improvised Explosive Device 

IEDP—Improvised Explosive Device 

Precursors 

LNG—Liquefied Natural Gas 

NFPA—National Fire Protection Association 

NOS—Not Otherwise Specified 

NPGA—National Propane Gas Association 

RMP—EPA’s Risk Management Program 

SVA—Security Vulnerability Assessment 

SSP—Site Security Plan 

STQ—Screening Threshold Quantity 

TQ—Threshold Quantity 

TSA—Transportation Security 

Administration 

VBIED—Vehicle-Borne Improvised Explosive 

Device 

WME—Weapon of Mass Effect 

I. Background 

On October 4, 2006, President George 

W. Bush signed the Department of 

Homeland Security Appropriations Act 

of 2007 (the Act), which provided the 

Department of Homeland Security with 

the authority to regulate the security of 

high risk chemical facilities. See Pub. L. 

109–295, § 550. Section 550 required the 

Secretary of Homeland Security to 

promulgate interim final regulations 

‘‘establishing risk-based performance 

standards for security of chemical 

facilities’’ by April 4, 2007 and specified 

that the regulations ‘‘shall apply to 

chemical facilities that, in the discretion 

of the Secretary, present high levels of 

security risk.’’ Id. 

Pursuant to Section 550, on December 

28, 2006, the Department issued an 

Advance Notice of Rulemaking 

(Advance Notice), which discussed a 

range of regulatory and implementation 

issues. See 71 FR 78276. By directing 

the Secretary to issue ‘‘interim final 

regulations,’’ Congress authorized the 

Secretary to proceed without the 

traditional notice and comment required 

by the Administrative Procedure Act. 

See 71 FR 78276, 78277. The 

Department, however, saw great benefit 

in soliciting comments on as much of 

the program as was practicable in the 

short timeframe permitted under the 

statute and therefore voluntarily sought 

comment on the Advance Notice, 

including a range of significant 

programmatic issues and regulatory text. 

On April 9, 2007, the Department 

issued an Interim Final Rule (IFR), 

which responded to the comments to 

the Advance Notice and established a 

new part 27 to Title 6 of the Code of 

Federal Regulations. See 72 FR 17688. 

Part 27 establishes risk-based 

performance standards for the security 

of our Nation’s chemical facilities. The 

rule requires covered chemical facilities 

to prepare Security Vulnerability 

Assessments (SVAs) that identify 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65397 

1CAS numbers are unique identifiers for 

chemical substances. 

2The Department has added definitions for 

Chemical of Interest (COI) and Security Issue to 

§ 27.105 ‘‘Definitions.’’

3See footnote 64. 

4As noted in the IFR and consistent with the 

definition of ‘‘security issue’’ in § 27.105, the 

Department recognizes one additional security 

issue—critical to government mission and national 

economy. (DHS has added a definition of security 

issue in this final rule at § 27.105.) The loss or 

interruption in production of certain chemicals, 

materials, or facilities could create significant 

adverse consequences for national security, the 

national or regional economy, and/or the ability of 

the government to deliver essential services. The 

Department plans to assess currently-available 

information and to collect new information (e.g., 

through the Top-Screen process) as a means of 

identifying facilities responsible for these types of 

chemicals. At this time, DHS is not including any 

chemicals in the appendix based on this security 

issue, though it may do so in the future. 

facility security vulnerabilities. The rule 

also requires covered chemical facilities 

to develop and implement Site Security 

Plans (SSPs) that identify measures that 

satisfy the identified risk-based 

performance standards. It also allows 

certain covered chemical facilities, in 

specified circumstances, to submit 

Alternate Security Programs (ASPs) in 

lieu of an SVA, SSP, or both. In 

addition, the rule contains associated 

provisions addressing inspections and 

audits, recordkeeping, and the 

protection of information that 

constitutes Chemical-terrorism 

Vulnerability Information (CVI). Finally, 

the rule provides the Department with 

authority to compel compliance through 

the issuance of orders, including orders 

assessing civil penalties and orders to 

cease operations. 

The IFR, except for Appendix A to 

part 27, went into effect on June 8, 2007. 

Appendix A contained a tentative list of 

Chemicals of Interest (COI). DHS 

accepted comments on the tentative list 

of chemicals in Appendix A (hereafter 

referred to as proposed Appendix A or 

proposed appendix) for 30 days until 

May 9, 2007. With this final rule, the 

Department responds to those 

comments and provides a final list of 

Chemicals of Interest in Appendix A. 

The same principles that guided the 

Department during the development of 

the proposed list have guided the 

Department during the development of 

this revised list, and those main 

principles are summarized here. First, 

DHS did not use any single, existing list 

as its sole source or classify all 

chemicals on any existing list in a 

particular way. Instead, DHS used 

multiple sources, so that it could obtain 

a more complete picture of the universe 

of facilities that may qualify as high 

risk. Second, in identifying the 

chemicals and STQs for chemicals, the 

Department sought to strike an 

appropriate balance: Sufficiently 

inclusive of chemicals in quantities that 

might present a high level of risk under 

the statute without being overly 

inclusive and thereby capturing 

facilities that are unlikely to present a 

high level of risk. Third, the Department 

has identified chemicals by considering 

security issue(s) associated with a 

chemical. The Department has 

identified the COI for preliminary 

screening based on the belief that these 

chemicals, if released, stolen or 

diverted, and/or contaminated, have the 

potential to create significant human life 

and/or health consequences. 

II. The Final Rule: The Revised List of 

Chemicals 

A. Overall Approach to Appendix A 

While the universe of chemicals in 

Appendix A has remained substantially 

the same, the Department has restructured the format of the appendix 

and has more clearly defined the 

provisions associated with these 

chemicals. The Department has 

included a considerable amount of 

additional information in the appendix 

as well as some new provisions to the 

regulatory text. The changes that the 

Department has made have come 

directly from comments or otherwise 

logically resulted from comments where 

DHS agreed that the comments raised 

valid points and were within the scope 

of the proposed appendix. 

The proposed appendix listed only a 

chemical and a corresponding Chemical 

Abstract Service (CAS) number,1

however the final appendix includes 

that information as well as a new 

column with commonly-used synonyms 

for certain chemicals. The final 

appendix also adds several new 

columns that identify the security 

issue(s) associated with each chemical 

of interest (COI).2 In addition, the 

Department has assigned an STQ and 

minimum concentration provision to 

each chemical of interest. The final 

appendix, unlike the proposed 

appendix, does not trigger reporting 

obligations based on possession of an 

STQ of ‘‘any amount.’’ 3

In the final appendix, the Department 

has listed the security issue(s) 

associated with each chemical of 

interest. Although these same security 

issues drove the Department’s selection 

of chemicals for inclusion in the 

proposed appendix, the Department did 

not list (in the proposed appendix) the 

security issue(s) for each particular 

chemical. This additional information 

provides guidance to regulated entities, 

so that they better understand how to 

use the appendix, and it explains the 

Department’s rationale(s) for including 

these chemicals, at these STQs, on the 

list. 

The seven columns on the far right of 

the appendix contain the chemical 

facility security issues that the 

Department has identified for this 

appendix. There are three main 

categories of security issues: Release, 

theft/diversion, and sabotage/ 

contamination.4 Two categories have 

three subcategories each. The ‘‘release’’

category has three subcategories: (1) 

Release-Toxic: Chemicals with the 

potential to create a toxic cloud that 

would affect populations within and 

beyond the facility, if intentionally 

released; (2) Release-Flammables: 

chemicals with the potential to create a 

vapor cloud explosion that would affect 

populations within and beyond the 

facility, if intentionally released; and (3) 

Release-Explosives: chemicals with the 

potential to affect populations within 

and beyond the facility if intentionally 

detonated. The ‘‘theft and diversion’’

category also has three subcategories: (1) 

Theft/Diversion-Chemical Weapons 

(CW)/Chemical Weapons Precursors 

(CWP): chemicals that could be stolen or 

diverted and used as CW or easily 

converted into CW; (2) Theft/DiversionWeapons of Mass Effect (WME): 

chemicals that could be stolen or 

diverted and used directly as WME; and 

(3) Theft/Diversion-Explosives (EXP)/ 

Improvised Explosive Device Precursors 

(IEDP): chemicals that could be stolen or 

diverted and used in explosives or IEDs. 

The third category, ‘‘sabotage/ 

contamination,’’ refers to those 

chemicals that, if mixed with other 

readily-available materials, have the 

potential to create significant adverse 

consequences for human life or health. 

The Department has established 

baseline STQs for the chemicals of 

interest for each security issue. (DHS 

discusses the baselines in this preamble 

and also summarizes the general rules 

in Table 1: ‘‘Summary of General Rules 

by Security Issue’’ at the end of this 

section). DHS has set the STQ for each 

chemical of interest at the baseline 

amount for that chemical’s security 

issue(s). Where necessary, the 

Department has identified a few 

exceptions. Most notably, DHS has 

developed a specialized approach for 

propane, chlorine, and ammonium 

nitrate. 

Each chemical in Appendix A 

presents at least one security issue, and 


rwilkins on PROD1PC63 with RULES_2
65398 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

5See 63 FR 640 (January 6, 1998). 

6See FAQ II.C.2 on the EPA Web site at http:// 

yosemite.epa.gov/oswer/ceppoweb.nsf/content/caafaqs.htm. 

some chemicals present multiple 

security issues. Where there are 

multiple issues associated with a 

chemical, a facility must complete and 

submit a Top-Screen if it meets or 

exceeds the STQ for any of the 

applicable security issues. For example, 

there are two security issues associated 

with arsenic trichloride: release-toxic 

and theft/diversion-CW/CWP. In the 

Security Issue columns of the appendix, 

there is a mark in the box for releasetoxic and for theft/diversion-CW/CWP, 

and there is a STQ (and minimum 

concentration) listed under the Release 

column and under the Theft column. If 

the facility meets or exceeds the STQ 

listed in either the Release column or 

the Theft column (using the appropriate 

calculation provisions discussed below), 

the facility must complete and submit a 

Top-Screen. The Department has 

revised the regulatory text in 

§ 27.200(b)(2) and § 27.210(a)(1)(i) to 

reflect this change. 

The Department will periodically 

update the list of chemicals in 

Appendix A and will do so subject to 

notice and comment. The Department 

may add or remove chemicals, or 

categories of chemicals, or may change 

STQs based on new or additional 

information. 

In revising Appendix A, the 

Department has found it necessary to 

revise the regulatory text, clarifying how 

facilities should use the appendix. The 

Department added § 27.203, which 

instructs facilities on how to calculate 

the STQ for a given chemical and 

§ 27.204, which addresses mixtures. In 

this section of the preamble, DHS 

discusses provisions that are general or 

that apply to multiple security issues. 

DHS discusses provisions related to 

specific security issues in section II(C). 

Section 27.203(a) provides specific 

exclusions from the calculation 

requirements that apply to chemicals of 

interest in all security issue categories. 

Facilities need not count chemicals of 

interest covered by these exclusions, 

because chemicals in such 

circumstances or forms are unlikely to 

contribute to the potential consequences 

of a successful attack. DHS has adopted 

several of these exclusions from the 

Environmental Protection Agency’s 

(EPA) Risk Management Program (RMP) 

regulation. Sections 27.203(a)(1)–(5), (6), 

and (8) track the EPA exemptions in 40 

CFR 68.115(b)(4)(i)–(iv), 68.115(b)(3), 

and 68.115(b)(2)(iii), respectively. The 

concepts are the same, though DHS has 

adjusted the language to make it 

consistent with the language in part 27 

(e.g., whereas EPA considers TQs 

present at a ‘‘stationary source,’’ DHS 

considers STQs at a ‘‘facility’’). Note 

that EPA applies these exemptions to 

release chemicals (i.e., those which it 

regulates under RMP), while DHS 

applies these exclusions to all part 27 

chemicals of interest (i.e., to all 

chemicals associated with the security 

issues of release, theft/diversion, and 

sabotage/contamination). 

DHS has formulated one other 

exclusion specifically for this 

regulation. In § 27.203(a)(7), DHS 

exempts chemicals of interest in solid 

waste (including hazardous waste) 

regulated under the Resource 

Conservation and Recovery Act (RCRA) 

(42 U.S.C. 6901 et seq.) DHS does not 

believe that it is necessary for facilities 

to count COI in RCRA-regulated solid 

waste toward their STQ, because the 

Department does not believe that this 

waste is a likely target of a terrorist 

attack or contains COI that are likely 

sources of terrorist uses. As stated in the 

regulatory text, though, this exclusion 

does not apply to waste covered by 40 

CFR 261.33, ‘‘Discarded commercial 

chemical products, off-specification 

species, container residues, and spill 

residues thereof.’’ This type of waste 

can include virtually pure chemicals 

(including off-specification products 

that may merely be inconsistent with a 

customer’s specifications) that have 

been discarded. DHS thinks it is 

important for facilities to include this 

waste in the STQ calculation, because 

this waste is a potential source of COI 

that would be just as attractive to a 

terrorist as the chemical product itself. 

Paragraph (b) of § 27.203 addresses 

STQ calculations related to release 

chemicals. Section 27.203(b)(1) provides 

instructions concerning the substances 

that facilities shall include when 

determining whether they possess 

quantities of a release chemical that 

meet or exceed the STQ. Proposed 

Appendix A did not contain the 

instructions enumerated in 

§ 27.203(b)(1), but further consideration 

and a review of the comments caused 

DHS to provide these instructions. 

Pursuant to § 27.203(b)(1)(i), facilities 

must include chemicals in a vessel, 

which, pursuant to 40 CFR 68.3, ‘‘means 

any reactor, tank, drum, barrel, cylinder, 

vat, kettle, boiler, pipe, hose, or other 

container.’’ Facilities must also include 

chemicals of interest stored in 

magazines, as defined in 27 CFR 555.11. 

Pursuant to that Bureau of Alcohol, 

Tobacco, Firearms and Explosives (ATF) 

definition, a magazine is ‘‘any building 

or structure, other than an explosives 

manufacturing building used for storage 

of explosive materials.’’ In addition, 

facilities must include chemicals of 

interest in underground storage 

facilities. For purposes of part 27, an 

underground storage facility refers to a 

below-ground storage location for 

chemicals of interest or mixtures of 

chemicals of interest (e.g., petroleumbased materials) that are placed in the 

storage location (until needed) after 

having been extracted from the ground 

and refined or processed. Such facilities 

include, but are not limited to, depleted 

reservoirs in oil and/or oil gas fields, 

aquifers, and salt cavern formations. 

DHS understands that certain products 

(e.g., propane, natural gas, petroleum) 

may be stored in these underground 

storage facilities, and DHS wants to 

ensure that facilities count this material 

toward the amount of their COI. 

Pursuant to § 27.203(b)(1)(ii), facilities 

must count chemicals of interest in 

specified transportation containers 

toward the STQ amount for release 

chemicals. In using this terminology, 

DHS is referring to the same category of 

transportation containers that EPA 

refers to in its RMP regulation—that is, 

transportation containers used for 

storage not incident to transportation, 

including transportation containers 

connected to equipment at a facility for 

loading or unloading and transportation 

containers detached from the motive 

power that delivered the container to 

the facility. See 40 CFR 68.3 (containing 

a description of transportation 

containers within the definition of 

‘‘stationary source’’). These 

transportation containers would 

include, for example, tank cars attached 

to processing units and tank cars 

detached from motive power that had 

delivered the tank car to the facility. 

While the EPA RMP regulation at 40 

CFR 68.3 does not specifically mention 

transportation containers detached from 

the motive power, EPA discusses such 

provision in its Final Rule titled ‘‘List of 

Regulated Substances and Thresholds 

for Accidental Release Prevention; 

Amendments’’ 5 and in its Frequently 

Asked Questions on the EPA Web site.6

Part 27 (like EPA’s RMP regulation) 

does not require facilities to include 

chemicals of interest in transportation 

when calculating their STQs. DHS 

adopts the EPA definition of 

transportation, and accordingly 

considers a container to be in 

transportation as long as it is attached 

to the motive power (e.g., truck or 

locomotive) that delivered it to the site. 

If the tank car is detached from the 

motive power, and therefore no longer 

in transportation, the facility must 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65399 

7Under the RMP rule, EPA considers there to be 

a threshold quantity of a substance if it is present 

at a stationary source. 40 CFR 68.115(a). ‘‘The term 

stationary source does not apply to transportation, 

including storage incident to transportation, of any 

regulated substance * * *.’’ 40 CFR 68.3. EPA 

‘‘considers the transportation exemption to include 

storage fields for natural gas where gas taken from 

pipelines is stored during non-peak periods, to be 

returned to the pipelines when needed.’’ 63 FR 640, 

642 (Jan. 6, 1998). Because EPA considers this type 

of storage incident to transportation, the type of 

storage is not subject to EPA’s RMP rule. 

8Section 27.204(a)(2) provides that ‘‘except as 

provided in § 27.203(b)(1)(v) for fuels that are stored 

in aboveground tank farms (including farms that are 

part of pipeline systems), if a release-flammable 

chemical of interest is present in a mixture in a 

concentration equal to or greater than one percent 

(1%), and the mixture has a National Fire 

Protection Association (NFPA) flammability hazard 

rating of 1, 2, or 3, the facility shall count the entire 

weight of the mixture toward the STQ.’’ Without 

the ‘‘exception’’ clause, DHS would have excluded 

these fuels by virtue of the fact that these fuels are 

mixtures that likely have NFPA flammability 

hazard ratings of 1, 2, and 3. Pursuant to 

§ 27.204(a)(2), facilities need not count the entire 

amount of these mixtures (i.e., mixtures with COI 

present in a concentration equal to or greater than 

one percent (1%) and with a flammability hazard 

rating of 1, 2, or 3) toward the STQ. 

consider the contents of the tank car in 

calculating its STQ. 

Pursuant to § 27.203(b)(1)(iii), 

facilities must also include chemicals of 

interest that are present as process 

intermediates, by-products, and 

incidental production materials. This 

means, for example, that a refinery must 

count toward the STQ for hydrogen 

sulfide the quantity of hydrogen sulfide 

produced as a by-product of any of its 

various processes. Or a facility should 

count toward the STQ for 37% 

hydrochloric acid the quantity of 37% 

hydrochloric acid produced from the 

absorption of hydrogen chloride gas into 

water and stored temporarily prior to 

subsequent dilution below the threshold 

concentration. DHS requires the 

inclusion of these items in calculating 

the STQ, because while they may not be 

present at all times, when present, they 

could be released and contribute to the 

consequences of an attack. 

The remaining two subsections in 

§ 27.203(b)(1) are items that EPA 

exempted, but which DHS believes are 

important to include in this regulatory 

program; they have the potential to 

create a significant offsite impact in the 

event of a successful attack. First, when 

calculating the amount of a chemical of 

interest, facilities must include 

chemicals in natural gas or liquefied 

natural gas (LNG) stored in ‘‘peak 

shaving facilities.’’ See 

§ 27.203(b)(1)(iv). Companies typically 

store natural gas or LNG in peak shaving 

facilities when demand for product is 

low or slows. The natural gas or LNG is 

stored until it is used later during peak 

consumption periods. EPA excludes the 

chemicals in these peak shaving 

facilities by virtue of the fact that EPA 

considers them storage incident to 

transportation, and EPA does not 

subject that type of storage to its RMP 

regulation.7 Within DHS, TSA is the 

lead agency for the security of pipeline 

transportation and of transportationrelated facilities; however, such 

facilities (e.g., peak shaving facilities) 

may be required to provide information 

under part 27. TSA and the Chemical 

Security Compliance Division will work 

together to ensure that DHS efforts 

directed at pipelines are 

complementary. 

Second, facilities must also include 

chemicals of interest in fuels when 

stored in above-ground tank farms, 

including tank farms that are part of 

pipeline systems. See § 27.203(b)(1)(v). 

This includes fuels with any one of the 

four National Fire Protection 

Association (NFPA) flammability hazard 

ratings and not just fuels with an NFPA 

flammability hazard rating of 4. EPA 

excludes these fuels by virtue of the 

provisions in its mixtures rule for 

regulated flammable substances. See 40 

CFR 68.115(b)(2). These fuels also 

would have been excluded under DHS’s 

flammable mixtures provisions (see 

§ 27.204(a)(2) 8) except that DHS 

specifically included these fuels 

through this provision here in 

§ 27.203(b)(1)(v), because of concern 

that they could create significant human 

life or health consequences if an 

intentional attack by a terrorist were 

successful. 

In § 27.203(c), DHS provides that 

facilities shall only count theft/ 

diversion chemicals of interest that are 

in a transportation packaging. DHS has 

adopted the Department of 

Transportation (DOT) definition of 

packaging, which refers to ‘‘a receptacle 

and any other components or materials 

necessary for the receptacle to perform 

its containment function in 

conformance with the minimum 

packing requirements of [DOT’s 

Hazardous Materials Regulations].’’ See 

49 CFR 171.8. This includes, but is not 

limited to, cylinders, bulk bags, bottles 

inside or outside of a box, cargo tanks, 

and tank cars. DHS has focused the 

universe of theft/diversion chemicals of 

interest in this fashion, because the 

theft/diversion security issue revolves 

around portable and transportable 

amounts of certain chemicals. DHS is 

concerned about both the theft of 

portable amounts of these chemicals 

and the diversion of shipments of these 

chemicals. 

The Department has also added 

§ 27.204, which addresses mixtures. It 

provides a minimum concentration 

provision for each security issue. The 

Department included this provision in 

response to commenters, who requested 

guidance on how to treat mixtures of 

chemicals of interest. See § 27.204. A 

facility must count toward the STQ for 

a given chemical all quantities of that 

chemical that meet or exceed the listed 

minimum concentration amount. These 

minimum concentration provisions are 

derived from existing federal regulatory 

programs (including EPA’s RMP 

program and the Department of 

Commerce’s Chemical Weapons 

Convention (CWC)) Regulations, as well 

as from industry technical standards 

(see, e.g., Standard for Classification of 

Toxic Gas Mixtures, CGA P–20–2003). 

The specific minimum concentration 

provision for each security issue is 

discussed in the sections below. 

In calculating chemical amounts, 

facilities should consider the chemicals 

in their possession within the 

framework for each of the three separate 

and distinct security issues categories 

(release, theft/diversion, and sabotage/ 

contamination). A facility must count 

each chemical of interest in its 

possession, using the relevant 

calculation provisions for each of the 

categories, and if the facility possesses 

an amount that meets or exceeds the 

STQ for any one of the categories (i.e., 

security issues), the facility must 

complete and submit a Top-Screen. To 

illustrate that point, the Department 

highlights sulfur dioxide, which is both 

a release-toxic (STQ: 5,000 pounds) and 

theft/diversion-WME (STQ: 500 

pounds). 

—Toward the release STQ of 5,000 

pounds, a facility must count all 

quantities of sulfur dioxide in vessels 

and underground storage facilities; in 

transportation containers used for 

storage not incident to transportation, 

including storage containers 

connected to equipment at a facility 

for loading or unloading and storage 

containers detached from the motive 

power that delivered the container to 

the facility; and present as process 

intermediates, by-products, and 

material produced incidental to the 

production of a product if they exist 

at any given time. 

—Toward the theft/diversion-WME STQ 

of 500 pounds, a facility must count 

all quantities of sulfur dioxide in a 

transportation packaging. 

If the facility has 5,000 pounds or 

more of sulfur dioxide aggregated onsite 

in vessel(s), transportation packaging(s), 

etc. or 500 pounds or more of sulfur 


rwilkins on PROD1PC63 with RULES_2
65400 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

9Specialized STQs apply to ammonium nitrate, 

chlorine, and propane. 10Based on the information the Department 

receives in accordance with § 27.200 and § 27.205 

(including information submitted through the TopScreen), the Department makes a preliminary 

determination as to a facility’s placement in a riskbased tier. See § 27.220(a). Following review of a 

covered facility’s Security Vulnerability Assessment 

(SVA), the Department makes a final determination 

as to a facility’s placement in a risk-based tier. See 

§ 27.220(b). 

11As used herein, a ‘‘covered facility’’ (or 

‘‘covered chemical facility’’), means ‘‘a chemical 

facility determined by the Assistant Secretary to 

present high levels of security risk. * * *’’ and 

differs from a ‘‘chemical facility’’ (or ‘‘facility’’), 

which refers to ‘‘any establishment that possesses 

or plans to possess, at any relevant point in time, 

a quantity of a chemical substance determined by 

the Secretary to be potentially dangerous or that 

meets other risk-related criteria identified by the 

Department.’’ See § 27.105. Although DHS will 

require many facilities to complete and submit a 

Top-Screen, DHS will only require covered facilities 

to develop a chemical facility security program (i.e., 

complete a SVA pursuant to § 27.215, develop and 

implement a SSP pursuant to § 27.225, etc.). 

dioxide in transportation packagings (or 

both), the facility must complete and 

submit a Top-Screen. 

Facilities must consider each security 

issue framework independently. As a 

result, there may be chemicals of 

interest that a facility counts under 

more than one security issue framework. 

That is completely appropriate, as there 

is a different focus (and therefore 

distinct counting and mixtures rules) for 

each security issue. For example, with 

respect to sulfur dioxide, a facility will 

count toward its release STQ quantities 

of sulfur dioxide in a tank car when that 

tank car is connected to equipment at 

the facility for loading and unloading 

and when that tank car is detached from 

the motive power that delivered it to the 

facility (see § 27.203(b)(1)(ii)) and it will 

count toward its theft/diversion-WME 

STQ quantities of sulfur dioxide in tank 

cars (see § 27.203(c)). Under both 

frameworks (release and theft), the 

facility may, in fact, count the same 

sulfur dioxide. As there are separate 

purposes for each framework, however, 

this is appropriate. The theft-STQ is 

focused on preventing someone from 

stealing or diverting the shipment of 

sulfur dioxide in the tank car and 

weaponizing it. The release-STQ is 

focused on preventing someone from 

intentionally releasing a quantity of 

sulfur dioxide that could affect the 

population within and beyond the 

facility. 

TABLE 1.—SUMMARY OF GENERAL RULES BY SECURITY ISSUE

Security issue STQ 9 COI to exclude COI to include Minimum 

concentration 

Release—Toxic ......................................... 500–20,000 lbs ......................................... 27.203(a) 

27.203(b)(2) 

27.203(b)(1) 

27.204(a)(1) 

27.204(a)(1) 

Release—Flammable ............................... 10,000 lbs ................................................. 27.203(a) 

27.203(b)(2) 

27.203(b)(3) 

27.203(b)(1) 

27.204(a)(2) 

27.204(a)(2) 

Release—Explosive .................................. 5,000 lbs ................................................... 27.203(a) 27.203(b)(1) 27.204(a)(3) 

Theft/Diversion—CW/CWP ....................... CUM 100 grams–220 lbs ......................... 27.203(a) 27.203(c) 27.204(b)(1) 

Theft/Diversion—WME ............................. 15–500 lbs ................................................ 27.203(a) 27.203(c) 27.204(b)(2) 

Theft/Diversion—EXP/IEDP ...................... 100–400 lbs .............................................. 27.203(a) 27.203(c) 27.204(b)(3) 

Sabotage/Contamination .......................... A Placarded Amount ................................ 27.203(a) 27.203(d) 27.204(c)

B. Effect of a Final Appendix A 

Under Section 550, the Department 

has the authority to use its best 

judgment and all available information 

in determining whether a facility 

presents a high level of security risk. 

Appendix A will assist the Department 

in determining which facilities present 

a high level of security risk. In 

Appendix A, the Department has 

identified chemicals of interest (at 

specified STQs) that trigger preliminary 

screening requirements. If a facility 

possesses a chemical of interest at or 

above the STQ for any applicable 

security issue, the facility must 

complete and submit a Chemical 

Security Assessment Tool (CSAT) TopScreen. The STQ is not the threshold for 

establishing whether a given facility is 

a high risk facility, but it is a threshold 

for determining whether the facility 

must complete and submit a TopScreen. 

Only after the Department gathers 

additional information through the TopScreen process will the Department 

make a determination 10 as to whether a 

facility presents a high level of security 

risk and therefore must comply with the 

substantive requirements in part 27. 

Accordingly, the presence or amount of 

a particular chemical is not the sole 

factor in determining whether a facility 

presents a high level of security risk; it 

is not the only indicator of a facility’s 

coverage under part 27. 

Sections 27.200(b)(2) and 27.210 

contain the requirements related to 

Appendix A, and those requirements are 

fully operative upon publication of this 

final rule in the Federal Register. 

Section 27.200(b)(2) requires facilities to 

complete and submit a Top-Screen if 

they possess any of the chemicals 

identified in Appendix A at or above the 

STQ for any applicable security issue. If 

a facility possesses even one of the 

chemicals of interest listed in Appendix 

A at or above the applicable STQ, the 

facility has an obligation to complete 

and submit a Top-Screen. Section 

27.210(a)(1)(i) provides the initial 

submissions schedule for facilities that 

have to submit a Top-Screen pursuant to 

Appendix A. 

Pursuant to § 27.210(a), the 

Department uses two methods to require 

facilities to undergo preliminary 

screening (i.e., complete and submit a 

Top-Screen). The first method, found in 

§ 27.210(a)(1)(i), is linked to Appendix 

A. From the effective date of a final 

Appendix A (i.e., this final rule), 

facilities that possess any of the 

chemicals listed in Appendix A at or 

above the STQ for any applicable 

security issue will have 60 calendar 

days to complete and submit a TopScreen to DHS. Facilities that later come 

into possession of such chemicals at or 

above the STQ for any applicable 

security issue will have to complete and 

submit a Top-Screen within 60 calendar 

days of coming into possession of such 

chemicals. See § 27.210(a)(1)(i). In 

addition, covered facilities 11 have an 

ongoing obligation to complete and 

update the Top-Screen as provided in 

§ 27.210(d). Covered facilities that make 

material modifications to their 

operations or site must complete and 

submit a revised Top-Screen within 60 

days of the material modification. See 

§ 27.210(d). 

The second method, found in 

§ 27.210(a)(1)(ii), allows the Department 

to contact facilities independently of 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65401 

12The Clean Air Act (42 U.S.C. 7401, et seq.) 

provides that the EPA shall promulgate a list of 

substances that ‘‘in the case of accidental release, 

are known to cause or may reasonably be 

anticipated to cause death, injury, or serious 

adverse effects to human health or the 

environment.’’ See 42 U.S.C. 7412(r)(3). 

13Note that some of these chemicals present not 

only a release issue, but present additional security 

issue(s) too (e.g., theft and diversion or sabotage and 

contamination). 

14The three release-toxics are: Toluene 2,4- 

diisocyanate; Toluene 2,6-diisocyanate; and 

Toluene diisocyanate (unspecified isomer). 

15 In 42 U.S.C. § 7412(r)(3), Congress directed 

EPA to include toluene diisocyanate (TDI) in its 

RMP list. EPA looked to the types of TDI in 

commercial production (i.e., those types listed on 

the Toxic Substances Control Act Chemical 

Substance Inventory) and listed the three forms 

noted in footnote 14. 

16See 40 CFR part 68. 

17 In 40 CFR 68.3, EPA defines ‘‘worst-case 

release’’ as ‘‘the release of the largest quantity of a 

regulated substance from a vessel or process line 

failure that results in the greatest distance to an 

endpoint defined in § 68.22(a).’’

18The eleven RMP release-toxics are: ethylene 

oxide, furan, hydrazine, hydrogen selenide, methyl 

chloride, methyl mercaptan, nickel carbonyl, 

peracetic acid, phosphine, propylene oxide, and 

tetranitromethane. 

Appendix A. Facilities must complete 

and submit a Top-Screen if the 

Department notifies the facility to do so 

through a Federal Register notice or on 

an individual basis through written 

notification. The Department may 

choose to contact facilities in this 

manner based on new or additional 

information or based on intelligence 

information about terrorists’ interest in 

certain chemicals or certain facilities. 

The Department will specify the time 

frame for these Top-Screen submissions 

in the written notification. Since the 

effective date of the IFR, the Department 

has used the second method (i.e., 

contacting certain facilities individually 

and directing them to complete the TopScreen). With the publication of this 

final rule, both triggering requirements 

for completing the Top-Screen will be in 

effect. 

C. Provisions by Security Issue 

1. Release-Toxics and ReleaseFlammables 

a. Chemicals 

To identify the release chemicals for 

Appendix A, the Department looked to 

the list of substances in the EPA’s RMP 

rule.12 See Tables 1 and 2 to 40 CFR 

§ 68.130 for release-toxics and Tables 3 

and 4 to 40 CFR 68.130 for releaseflammables. The Department had 

included all of the EPA RMP substances 

in proposed Appendix A,13 and aside 

from the exceptions noted below, 

continues to do so in this final 

appendix. For release-toxics, the 

Department uses the same listing 

criteria, including the EPA acute 

toxicity criteria and vapor pressure cutoff, which can be found in EPA’s final 

rule, ‘‘List of Regulated Substances and 

Threshold for Accidental Release 

Prevention; requirements for Petitions 

Under Section 112(r) of the Clean Air 

Act as Amended.’’ See 59 FR 4478, 4482 

(January 31, 1994). EPA includes a toxic 

substance on its RMP list if the 

substance is an acute toxic that has 

vapor pressure high enough that the 

release could result in an offsite 

poisonous inhalation hazard. 

In this final appendix, the Department 

has removed three release-toxic 

chemicals 14 that it had included in the 

proposed appendix. While these three 

toxic chemicals appear on EPA’s RMP 

list, they do not meet the RMP listing 

criteria for vapor pressure. EPA 

included these three chemicals in their 

RMP list, because Congress specifically 

required their inclusion pursuant to 

§ 7412(r)(3) of the Clean Air Act, 42 

U.S.C. 7401 et seq.15 Because these 

chemicals do not otherwise meet the 

RMP listing criteria for toxic chemicals, 

DHS has removed them from Appendix 

A. 

For release-flammable chemicals, 

DHS also uses the same listing criteria 

as EPA does for release-flammable 

chemicals. EPA, and now DHS, 

identifies flammable gases and volatile 

flammable liquids based on the flash 

point and boiling point criteria that the 

NFPA uses for its highest flammability 

hazard ranking (Class IA). The criteria 

can be found in EPA’s Final List Rule. 

See 59 FR 4478, 4480 (January 31, 

1994). 

b. STQ 

DHS set the STQ for release-toxics at 

the same amount that EPA set the 

Threshold Quantity (TQ) for toxic 

substances under its RMP regulation.16

That amount ranges from 500 to 20,000 

pounds, depending on the toxicity and 

volatility of the substance. Likewise, 

DHS set the STQ for release-flammables 

at the same amount as EPA—10,000 

pounds. The Department has adopted 

the EPA RMP TQs, because DHS accepts 

the same rationale that EPA used when 

setting its TQs—i.e., that they are 

amounts that, if released, have the 

potential to create significant human 

health effects. The Department realizes 

that, in developing these TQs, EPA 

collected extensive input on and 

conducted a thorough analysis, and 

DHS wants to leverage that knowledge 

base. 

Whereas the Department had 

proposed to set the STQs for these 

release chemicals at seventy-five 

percent of the EPA RMP TQs in the IFR, 

the Department has instead set these 

STQs at the same amount as the EPA 

RMP TQs. In doing so, the Department 

accepted the recommendation of many 

commenters to set the STQ for these 

release chemicals at, rather than below, 

the EPA RMP TQs. The Department 

realized that it did not need to reduce 

its STQs to a level below that of the EPA 

TQs, because even though DHS and EPA 

are seeking to satisfy two different 

mandates (i.e., DHS to prevent an 

intentional release and EPA to prevent 

an accidental release), DHS has made 

accommodations for that difference. The 

DHS method for calculating an STQ is 

more conservative than that of the EPA 

for TQs. Under part 27, except for the 

exclusions listed in § 27.203(a), (b)(2), 

and (b)(3), a facility must aggregate the 

total amount of COI that it possesses at 

its facility, including COI that may exist 

in separate processes. By contrast, under 

EPA’s RMP regulation, a facility must 

consider the total quantity of a regulated 

substance ‘‘contained in a process’’ that 

exceeds the TQ. See 40 CFR 68.115(a). 

For example, a facility that has multiple 

processes (involving an RMP substance), 

with each process below the threshold 

for the reportable TQ, would not be 

covered under RMP. That facility, 

however, would be covered under part 

27 if the total quantity of all the 

processes (associated with a chemical of 

interest) was at or above the STQ. 

DHS believes that, in the case of an 

intentional terrorist attack, chemicals or 

materials would likely be released from 

multiple vessels rather than a single 

vessel. As a result, the Department 

believes that setting the STQ at an 

amount that reflects the entire inventory 

of the facility better captures the 

potential consequences of an intentional 

attack. The Department believes this is 

more appropriate than EPA’s valid 

assumption for accidents that the worstcase release 17 would be a release from 

the largest vessel. 

Despite the general rule for release 

chemicals (i.e., that the DHS STQs are 

the same as the EPA TQs), there are a 

few differences between the EPA TQs 

and the DHS STQs. First, as discussed 

below in section II(D)(1), DHS treats 

propane differently than all other 

release-flammables. Second, the RMP 

TQ for toxic substances applies to all 

DHS release-toxics except for eleven 18

that meet the RMP listing criteria for 

both toxicity and flammability. EPA 

treats these substances as toxics in its 

RMP rule; however, DHS lists these 

substances as flammables (and sets the 


rwilkins on PROD1PC63 with RULES_2
65402 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

19As a result of that decision, DHS removed 

chemicals such as dinitrosobenzene, sodium 

dinitro-o-cresolate, sodium picramate, tetrazol-1- 

acetic acid, and zirconium picramate. 

20N.O.S. refers to ‘‘not otherwise specified.’’

STQ at 10,000 pounds), because, in an 

intentional release, they are more likely 

to act like flammables and potentially 

create an explosive vapor cloud. 

In calculating whether a facility meets 

the STQ for release-toxic or releaseflammable chemicals, the facility need 

not include release-toxic or releaseflammable chemicals of interest that a 

facility manufactures, processes, or uses 

in a laboratory at the facility under the 

supervision of a technically qualified 

individual as defined in 40 CFR 720.3. 

See § 27.203(b)(2). DHS adopted this 

laboratory quantities exclusion, 

including the definition of ‘‘technically 

qualified individual,’’ from EPA. The 

comparable EPA laboratory quantities 

exemption is located in EPA’s RMP 

regulation at 40 CFR 68.115(b)(5), and 

EPA’s definition of ‘‘technically 

qualified individual’’ is located at 40 

CFR 720.3(ee). EPA defines a 

‘‘technically qualified individual’’ to 

mean ‘‘a person or persons (1) who, 

because of education, training, or 

experience, or a combination of these 

factors, is capable of understanding the 

health and environmental risks 

associated with the chemical substance 

which is used under his or her 

supervision, (2) who is responsible for 

enforcing appropriate methods of 

conducting scientific experimentation, 

analysis, or chemical research to 

minimize such risks, and (3) who is 

responsible for the safety assessments 

and clearances related to the 

procurement, storage, use, and disposal 

of the chemical substance as may be 

appropriate or required within the scope 

of conducting a research and 

development activity.’’ Like EPA, the 

DHS laboratory quantities exclusion 

does not apply to specialty chemical 

production; manufacture, processing, or 

use of substances in pilot plant scale 

operations; or activities, including 

research and development, involving 

chemicals of interest conducted outside 

the laboratory. Facilities that engage in 

such activities must count those 

chemicals toward their STQ. 

DHS believes that, in a release, a lab 

quantity of a release chemical would not 

significantly contribute to the 

consequentiality of an attack. Moreover, 

under this provision, DHS believes that, 

where lab quantities of release 

chemicals are used, there are 

appropriate controls by virtue of the fact 

it is done so under the supervision of a 

technically qualified individual. In 

adding this laboratory quantity 

provision, DHS was responsive to the 

numerous commenters, including those 

from colleges, universities, and 

industrial laboratories, who requested 

such a provision. 

As noted above, DHS adopted this 

laboratory quantities exclusion from the 

EPA. DHS, however, has made one 

minor clarifying adjustment to the 

language that it adopted from EPA. In 

response to comments, DHS added 

language to § 27.203(b)(2)(i) to make 

explicit that activities conducted 

outside the laboratory may include 

research and development activities. A 

facility must count all quantities of COI 

involved in activities conducted outside 

of the laboratory (including research 

and development) toward its STQ. In 

other words, such COI would not be 

subject to the laboratory quantities 

exclusion. 

c. Minimum Concentration (Mixtures) 

Pursuant to § 27.204(a) and as noted 

in the ‘‘minimum concentration’’ entries 

in the appendix, the minimum 

concentration of a release-toxic or 

release-flammable chemical of interest 

that a facility must include when 

counting the amount of COI is one 

percent (1%) by weight. Pursuant to 

§ 27.204(a)(1), if a release-toxic chemical 

is present in a mixture, and the 

concentration of the chemical is equal to 

or greater than one percent (1%) by 

weight, the facility shall count the 

amount of the chemical of interest in the 

mixture toward the STQ. For example, 

if a facility has 500 pounds of a toxic 

mixture containing five percent (5%) 

acrolein, the facility should count five 

percent (5%) of the weight of the 

mixture, or 25 pounds of acrolein, 

toward the STQ of 5,000 pounds. Except 

for oleum, if a facility can measure or 

estimate (and document) that the partial 

pressure of the regulated substance in 

the mixture is less than 10 mm Hg, the 

facility need not consider the mixture 

when determining the STQ. If a releasetoxic chemical of interest is present in 

a mixture, and the concentration of the 

chemical is less than one percent (1%) 

by weight of the mixture, the facility 

need not count the amount of that 

chemical in the mixture in determining 

whether the facility possesses the STQ. 

Note that these mixture provisions track 

those of the EPA in its RMP regulation. 

See 40 CFR 68.115(b)(1). 

Pursuant to § 27.204(a)(2), if a releaseflammable chemical of interest is 

present in a mixture in a concentration 

equal to or greater than one percent 

(1%) by weight of the mixture, and the 

mixture has a NFPA flammability 

hazard rating of 4, the facility shall 

count the entire weight of the mixture 

toward the STQ. For example, if a 

facility has 500 pounds of a flammable 

mixture containing five percent (5%) 

pentane and the mixture as a whole has 

a NFPA flammability hazard rating of 4, 

the facility shall count the entire weight 

of the mixture, or 500 pounds, toward 

the STQ of 10,000 pounds. If a releaseflammable chemical of interest is 

present in a mixture in a concentration 

equal to or greater than one percent 

(1%) by weight of the mixture, and the 

mixture has a NFPA flammability 

hazard rating lower than 4 (i.e., NFPA 

hazard rating of 1, 2, or 3), the facility 

need not count the entire weight of the 

mixture toward the STQ. If a releaseflammable chemical of interest is 

present in a mixture, and the 

concentration of the chemical is less 

than one percent (1%) by weight, the 

facility need not count the mixture in 

determining whether the facility 

possesses the STQ. Note that these 

mixture provisions track those of the 

EPA in its RMP regulation. See 40 CFR 

68.115(b)(2). 

2. Release-Explosives 

a. Chemicals 

To identify release chemicals that 

present an explosive hazard, DHS 

looked to the DOT hazardous materials 

regulations (see 49 CFR 171–180) and 

the EPA’s original listing rule for RMP 

(see 59 FR 4478 (January 31, 1994)). 

DOT identifies explosives as one of nine 

classes of hazardous materials that it 

regulates and divides explosives (‘‘Class 

1 explosives’’) into six divisions. See 49 

CFR 173.50(b). Although DHS had 

included explosives from the six DOT 

explosives divisions in the proposed 

Appendix A, DHS is only including 

Division 1.1 explosives in this final 

appendix.19 After consideration of 

comments and further review, DHS 

decided to focus on Division 1.1 

explosives, which are those that have a 

mass explosion hazard. A mass 

explosion hazard is one which affects 

almost the entire load instantaneously. 

DHS has incorporated all of the DOT 

Class 1, Division 1.1 explosive 

chemicals with only two broad 

exceptions. First, the Department does 

not include those explosive materials 

for which DOT uses a generic shipping 

name with the suffix ‘‘N.O.S.’’ 20 This 

refers to materials with generic 

descriptions in the Hazardous Materials 

Table in 49 CFR 172.101 (e.g., 

Substances, explosive, n.o.s.). The 

Department has instead identified the 

relevant Class 1 explosive materials as 

only those that DOT specifically names 

in its Hazardous Materials Table. 

Second, DHS does not include articles 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65403 

21 In the proposed appendix in the IFR, DHS set 

the STQ for these explosive chemicals at 2,000 

pounds. In the IFR, however, DHS was only 

considering the theft/diversion concern. In the IFR, 

had DHS set the STQ for these explosive chemicals 

(using the method of calculating the STQ at 75% 

of the EPA RMP TQ) based on a release concern the 

STQ would have been 3,750 pounds. As discussed 

in this preamble, while the current EPA RMP does 

not contain release-explosives, EPA had previously 

included release-explosives in the RMP program, 

and when doing so, EPA set the TQ at 5,000 

pounds. 22 71 FR 76852 (December 21, 2006). See 

proposed 49 CFR 1580.100(b)(1). 23See § II(C)(1)(b) above. 24The Convention on the Prohibition of the 

Development, Production, Stockpiling and Use of 

Chemical Weapons and on Their Destruction is an 

international arms control, disarmament, and nonproliferation treaty, which is implemented by 22 

U.S.C. 6701, et. seq. The Department of Commerce 

administers the implementing regulations. See 15 

CFR part 710. 

25Schedule 1 chemicals are provided in 

Supplement No. 1 to 15 CFR part 712, Schedule 2 

chemicals are provided in Supplement No. 2 to 15 

CFR part 713, and Schedule 3 chemicals are 

provided in Supplement No. 3 to 15 CFR part 714. 

26See ‘‘The Chemical Weapons Convention 

Regulations: Frequently Asked Questions and 

Answers on Industry Compliance,’’ U.S. 

Department of Commerce, Bureau of Industry and 

Security, Publication CWC–006 (Updated May 

2006). 

27There were a few Schedule 1 chemicals, 

however, that were inadvertently omitted from the 

proposed appendix. 

28Among the Schedule 2 chemicals, DHS 

included certain easily-weaponizable chemicals 

that are representative of ‘‘families’’ of Schedule 2 

chemicals (as opposed to uniquely identifiable 

Schedule 2 chemicals). 

29One of the DHS Science and Technology 

Centers, the CSAC leverages existing Department of 

Defense (and other) infrastructure and capabilities 

to provide analysis and scientific assessment of the 

chemical threat against the homeland and the 

American public. 

or devices that DOT lists in its 

Hazardous Material Table. Examples of 

those articles and devices include 

charges, guns, detonators, detonator 

assemblies, fuses, primers, cartridges, 

and motors. DHS does not believe, at 

this time, that it is necessary to include 

this broader universe of substances and 

materials. Coverage of chemical 

facilities that present a high level of risk 

and that include these materials will be 

triggered by other STQ provisions of 

this rule. If the Department finds that is 

not the case for a particular facility, the 

Department will seek information from 

that facility. 

DHS believes it is appropriate to 

include DOT Class 1, Division 1.1 

explosive materials in Appendix A 

despite the EPA’s exclusion of these 

materials. At the onset of the RMP 

program, EPA had listed DOT Division 

1.1 explosives as a regulated substance. 

EPA set the TQ at 5,000 pounds, 

because the EPA believed that a blast 

wave from such an amount had the 

potential to cause offsite impacts. See 59 

FR 4478 (January 31, 1994). EPA later 

issued a final rule, delisting Class 1, 

Division 1.1 explosives. See 63 FR 640 

(January 6, 1998). In the final rule, EPA 

concluded that ‘‘current regulations and 

current and contemplated industry 

practices promote safety and accident 

prevention in storage, handling, 

transportation, and use of explosives. As 

a result, these regulations and practices 

adequately protect the public and the 

environment from the hazards of 

accidents involving explosives.’’ See 63 

FR 640, 641. DHS notes that EPA’s 

decisions were based on safety and the 

prevention of an accidental release. DHS 

is concerned with an intentional attack 

on an explosives facility, which has the 

potential to generate significant impacts 

for human life and health beyond the 

facility. Given the different focus of 

DHS’s regulation, it is important that 

DHS consider DOT Class 1, Division 1.1 

explosives; there is the potential for a 

serious off-site effect from an intentional 

and successful attack on a facility with 

these explosives. 

b. STQ 

DHS proposed an STQ of 2,000 

pounds 21 for release-explosives but 

now sets the STQ for release-explosives 

at 5,000 pounds. As discussed above in 

relation to release-toxics and releaseflammables, DHS has decided to set the 

STQ for release chemicals at the EPA 

TQs. Five thousands pounds is the TQ 

that EPA had used for DOT Division 1.1 

explosives when the DOT Division 1.1 

explosives were part of the EPA RMP 

program. In addition, this is the same 

quantity that TSA now proposes to use 

for DOT explosives in its Rail 

Transportation Security NPRM.22 All 

release-explosives are also listed as 

theft/diversion-EXP/IEDP chemicals 

(although all theft/diversion-EXP/IEDP 

chemicals are not listed as releaseexplosives, because the theft/diversionEXP/IEDP category includes both actual 

explosives and precursors to 

explosives). A facility that possesses a 

chemical that presents both a releaseexplosive hazard and a theft/diversionEXP/IEDP hazard must consider both of 

the applicable STQs, and if the facility 

possesses a quantity that satisfies either 

STQ, the facility must complete and 

submit the Top-Screen. 

In calculating whether a facility meets 

the STQ for release-explosive chemicals, 

the facility need not include releaseexplosive chemicals of interest that a 

facility manufactures, processes, or uses 

in a laboratory at the facility under the 

supervision of a technically qualified 

individual as defined in 40 CFR 720.3. 

See § 27.203(b)(2). This provision is 

identical to the laboratory quantities 

provision that applies to release-toxic 

and release-flammable chemicals and 

that is discussed above.23

c. Minimum Concentration (Mixtures) 

Section 27.204(a)(3) provides that a 

facility shall count toward the STQ the 

total quantity of all commercial grades 

of release-explosives. DHS has added a 

definition of ‘‘A Commercial Grade’’

(ACG) to § 27.105. ACG refers to any 

quality or concentration of a chemical of 

interest offered for commercial sale that 

a facility uses, stores, manufactures, or 

ships. 

3. Theft/Diversion-CW/CWP 

a. Chemicals 

In identifying chemical weapons (CW) 

and their precursors that are at risk for 

theft or diversion, the Department 

looked to the chemicals covered by the 

Chemical Weapons Convention 

(CWC).24 The chemicals covered by the 

CWC regulations are divided into three 

lists, or ‘‘schedules,’’ based on their 

previous use as a CW or possible utility 

in developing chemical weapons.25

Schedule 1 covers chemical weapons 

agents and their immediate precursors. 

They have very limited industrial and 

medical applications. Schedule 2 covers 

chemicals and precursors that have 

some industrial uses. Schedule 3 covers 

chemicals and precursors with broad 

commercial applications, some of which 

were formerly weaponized.26

While the Department included 

chemicals from all three Schedules 27 in 

proposed Appendix A, the Department 

has only included select chemicals from 

the CWC Schedules in final Appendix 

A. The Department continues to include 

all specifically identified Schedule 1 

chemicals, because they are actual CW 

agents and their immediate precursors. 

Note that, based on comments, the 

Department has listed these Schedule 1 

chemicals by their individual common 

name along with their chemical name. 

With respect to Schedule 2 and 3 

chemicals, the Department has only 

included those Schedule 2 and 3 

chemicals and precursors that are 

‘‘easily weaponizable’’—that is, they 

could be easily converted into chemical 

weapons using simple chemistry, 

equipment, and techniques.28 DHS 

made the determination about 

‘‘weaponizability’’ after consulting with 

several sources, including the Federal 

Bureau of Investigation (FBI) and the 

DHS Chemical Security Analysis Center 

(CSAC).29 As a result of this approach, 

the Department removed chemicals that 

had appeared on the proposed list but 


rwilkins on PROD1PC63 with RULES_2
65404 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

30The Australia Group is an informal group of 

countries, which aims to allow exporting or 

transshipping countries to minimize the risk of 

assisting chemical and biological weapon 

proliferation. See http://www.australiagroup.net/ 

en/control_list/precursors.htm. 

31The STQ for the chemical from the Australia 

Group, triethanolamine hydrochloride, is 220 

pounds. 

32 DOT defines a ‘‘gas poisonous by inhalation’’

in 49 CFR 173.115(c) and assigns hazard zones in 

49 CFR 173.116(a). 

33One Hazard Zone D chemical, ethylene oxide, 

is listed in the final Appendix A, because of its 

inclusion on EPA’s RMP list. DHS lists ethylene 

oxide as a release-toxic but not as a theft-WME 

chemical. 

34Title VI of the Clean Air Act (42 U.S.C. 7671, 

et seq.), which addresses stratospheric ozone 

protection, directs EPA to establish a program for 

phasing out production and use of ozone-destroying 

chemicals, including methyl bromide. These 

requirements are in furtherance of the United 

States’ obligations, as a signatory to the 1987 

Montreal Protocol on Substances that Deplete the 

Ozone Layer, to limit the production and use of 

such chemicals. In 2000, EPA issued a direct final 

rulemaking, which allowed for the phased 

reduction in methyl bromide consumption and 

which extended the phase-out to 2005. See 65 FR 

70795 (November 28, 2000). EPA has further 

extended the phase-out program until alternatives 

for all critical uses of the chemical are available. 

See 71 FR 38325 (July 6, 2006). See also http:// 

www.epa.gov/ozone/mbr/index.html. 

35The DOT shipping name for germanium 

tetrafluoride is ‘‘Liquefied Gas, Toxic, Corrosive, 

n.o.s. (Germanium Tetrafluoride)’’ if liquid is 

present and ‘‘Compressed Gas, Toxic, Corrosive, 

n.o.s. (Germanium Tetrafluoride)’’ if no liquid is 

present. 

were now determined not to be easily 

weaponizable (e.g., chloropicrin). In 

addition to including select CWC 

chemicals, Appendix A also contains 

one other easily weaponizable chemical 

(triethanolamine hydrochloride) from 

the Australia Group’s 30 ‘‘Export 

Controls List: Chemical Weapons 

Precursors.’’

b. STQ and Minimum Concentration 

(Mixtures) 

DHS has eliminated the ‘‘any 

amount’’ STQ that it used in the 

proposed appendix for theft/diversionCW/CWP chemicals. In this final 

appendix, DHS has set the STQ for each 

theft/diversion-CW/CWP chemical 

based on the Schedule from which DHS 

adopted the chemical. The STQ for 

Schedule 1 chemicals is cumulative, or 

‘‘CUM 100g,’’ meaning that all amounts 

of Schedule 1 chemicals at a facility 

count toward the cumulative STQ of 

100 grams. Section 27.203(c) provides 

that ‘‘where a theft/diversion-Chemical 

Weapons (CW) chemical is designated 

by ‘‘CUM 100g,’’ a facility shall total the 

quantity of all such designated 

chemicals in its possession to determine 

whether the facility possesses theft/ 

diversion-CW chemicals that meet or 

exceed the STQ of 100 grams.’’ This is 

an aggregate amount and not a per agent 

limit. DHS added a definition for ‘‘CUM 

100g’’ to § 27.105 ‘‘Definitions’’ and 

included this new provision in 

§ 27.204(b)(1). ‘‘CUM 100g’’ is the entry 

for both the STQ and Minimum 

Concentration columns for all Schedule 

1 chemicals. DHS decided to use this 

amount based on the recommendation 

of CSAC, which indicated that this 

amount merits proper security for 

purposes of preventing theft and 

diversion to create significant human 

impact and cause widespread panic. 

The STQs for Schedule 2 and 3 

chemicals, which are based on their 

ease of weaponization, are 2.2 pounds 

and 220 pounds, respectively.31 Unlike 

the STQ for Schedule 1 chemicals, these 

STQs are not cumulative. For nonSchedule 1 theft/diversion-CW/CWP 

chemicals of interest that are present in 

a mixture at or above the minimum 

concentration listed in the column in 

Appendix A, the facility should count 

the entire amount of the mixture toward 

the STQ. See § 27.204(b)(1). 

4. Theft/Diversion-WME 

a. Chemicals 

To identify chemicals that might be 

targeted for theft or diversion as 

weapons of mass effect (WME), the 

Department looked to the DOT 

hazardous materials regulations and 

considered gases that are poisonous by 

inhalation (PIH). In proposed Appendix 

A, DHS listed all DOT Division 2.3 PIH 

gases including those in Hazard Zones 

A through D.32 In this finalized 

appendix, the Department has not 

included Hazard Zone D PIH gases 

(including carbon monoxide and 

sulfuryl fluoride), because they do not 

rise to a level of consequentiality that 

warrants inclusion as a theft/diversionWME chemical.33 In addition, the 

Department no longer includes methyl 

bromide on the list of chemicals, 

because it is being phased out of 

domestic manufacture and use under 

Clean Air Act regulations implementing 

the United States’ obligations as a 

signatory to the Montreal Protocol on 

Substances that Deplete the Ozone 

Layer.34 Thus, given the limited and 

decreasing availability of methyl 

bromide, the Department does not 

believe that the potential consequences 

of an attack warrant inclusion of that 

chemical on the list of chemicals in 

Appendix A. 

In the proposed appendix, with one 

exception, DHS did not include DOT 

Division 2.3 PIH gases for which DOT 

uses a generic shipping name with the 

suffix ‘‘N.O.S.’’ DHS has done the same 

in this final appendix. N.O.S. refers to 

materials with generic descriptions (e.g., 

Compressed gas, n.o.s. or Compressed 

gas, toxic, flammable, corrosive, n.o.s. 

Inhalation Hazard Zone D; or 

Insecticide gases n.o.s. or Insecticide 

gases, toxic, flammable, n.o.s. Inhalation 

hazard Zone A). The Department has 

only included PIH gases that the 

Department of Transportation 

specifically names in the Hazardous 

Materials Table in 49 CFR 172.101. In 

addition, the Department has included 

germanium tetrafluoride.35 While that 

chemical is not specifically named in 

the DOT Hazardous Materials Table, it 

is often named specifically by 

convention in industry. Given that it 

can be identified by its specific name 

and following a positive response from 

commenters as to the inclusion of this 

chemical, the Department decided to 

retain this chemical on the list. 

b. STQ 

DHS has eliminated the ‘‘any 

amount’’ STQ that it used in the 

proposed appendix for theft/diversionWME chemicals. DHS developed the 

STQs for these chemicals in this final 

rule based generally upon 

recommendations from the Compressed 

Gas Association (CGA) in its comments 

to the proposed appendix in the IFR. 

The STQs for theft/diversion-WME 

chemicals vary based on Hazard Zone, 

thereby taking into account their 

relative toxicity. See 49 CFR 173.116 

‘‘Class 2—Assignment of Hazard Zone.’’

In their comments, CGA indicated that, 

aside from lecture bottles and sample 

cylinders, the minimum industry 

standard commercial size package for 

Hazard Zone A PIH gases is five (5) 

pounds, and the minimum industry 

standard commercial size package for 

Hazard Zone B PIH gases is fifteen (15) 

pounds. CGA recommended that DHS 

set the STQ for Hazard Zone A at any 

amount greater than five pounds and the 

STQ for Hazard Zone B at any amount 

greater than fifteen pounds. In this final 

rule, DHS has set the STQ for Hazard 

Zone A PIH gases, which are the most 

toxic of PIH gases, at fifteen (15) 

pounds, and the STQ for Hazard Zone 

B PIH gases at forty-five (45) pounds. 

These two STQs are the equivalent of 

approximately three standard 

commercial size packages for Hazard 

Zone A and B PIH gases. These two 

STQs represent quantities of Hazard 

Zone A and/or Hazard Zone B PIH gases 

that are likely to generate significant 

consequences, including the fact that 

portable quantities of these PIH gases 

may be subject to theft and/or diversion. 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65405 

36An IED is a device fabricated in an improvised 

manner that incorporates in its design explosives or 

destructive, lethal, noxious, pyrotechnic, or 

incendiary chemicals. It generally includes a power 

supply, a switch or timer, and a detonator or 

initiator. 

37See discussion in section II(C)(2) above. 

38The National Academy Press published the 

Report, which is available online at www.nap.edu. 

The National Research Council had appointed ‘‘The 

Committee on Marking, Rendering Inert, and 

Licensing of Explosive Materials’’ to address areas 

related to explosives. This final report presents the 

Committee’s conclusions and recommendations. 

39 DHS added aluminum (powder), magnesium 

(powder), nitrobenzene, potassium permanganate, 

sodium azide, sodium hydrosulfite, and zinc 

hydrosulfite. 

40As stated on the FBI website, the FBI 

Explosives Unit ‘‘examines evidence associated 

with bombings. Explosives examinations involve 

the identification and function of the components 

used in the construction of incendiary as well as 

improvised explosive devices. In addition, the Unit 

performs chemical analyses to determine the type 

of explosive used in an improvised explosive or 

incendiary device, which includes bulk substance 

analysis as well as analysis of the residues left 

behind when an explosive detonates.’’ See http:// 

www.fbi.gov/hq/lab/org/eu.htm. 

41See the Executive Summary of the National 

Research Council Report titled ‘‘Containing the 

Threat from Illegal Bombings: An Integrated 

National Strategy for Marking, Tagging, Rendering 

Inert, and Licensing Explosives and Their 

Precursors,’’ p. 15. 

42 Id. at p. 147. 

43 Id. at p. 147. 

The STQ for Hazard Zone C PIH gases 

is 500 pounds. That amount is 

equivalent to approximately five 

standard industrial gas cylinders. 

Hazard Zone C PIH gases are less toxic 

than those in Hazard Zones A and B, 

and DHS therefore has concluded that it 

is unlikely for amounts less than 500 

pounds to generate a high degree of 

consequence. 

These general STQ rules apply to all 

theft/diversion-WME chemicals except 

in two instances. First, DHS has 

established specialized provisions for 

chlorine, which are discussed below in 

section II(D). Second, DHS set the STQ 

for two Hazard Zone C PIH gases 

(hydrogen fluoride and boron 

trichloride) at the STQ associated with 

Hazard Zone B PIH gases—i.e., 45 

pounds instead of 500 pounds. 

Although DOT categorizes these 

substances as Hazard Zone C, industry 

generally treats these gases as Hazard 

Zone B gases because of their toxic 

properties. Industry commenters 

recommended, and DHS agreed, that the 

toxic properties of these chemicals 

warrant a higher degree of scrutiny and 

unique STQ in the security context. 

c. Minimum Concentration (Mixtures) 

If a theft/diversion-WME chemical of 

interest is present in a mixture at or 

above the minimum concentration 

amount listed in the Minimum 

Concentration column of the appendix, 

the facility shall count the entire 

amount of the mixture toward the STQ 

unless a specific minimum 

concentration is assigned in the 

Minimum Concentration column of 

Appendix A to part 27, in which case 

the facility should count the total 

quantity of all commercial grades of the 

chemicals at the specified minimum 

concentration. See § 27.203(b)(2). DHS 

derived the minimum concentrations 

from the Compressed Gas Association 

Standard for Classification of Toxic Gas 

Mixtures, CGAP–20–2003. 

5. Theft/Diversion-EXP/IEDP 

a. Chemicals 

To identify chemicals that could be 

subject to theft or diversion for purposes 

of creating an explosion or producing an 

Improvised Explosive Device (IED),36

the Department considered several 

sources. For proposed Appendix A, the 

Department included certain DOT Class 

1 explosives.37 The Department also 

included IED precursors that the 

National Research Council 

recommended for additional control in 

its report titled ‘‘Containing the Threat 

from Illegal Bombings: An Integrated 

National Strategy for Marking, Tagging, 

Rendering Inert, and Licensing 

Explosives and Their Precursors.’’ 38

While the universe of theft/diversionEXP/IEDP chemicals has remained 

substantially the same since the IFR, 

DHS has added a few chemicals 

(including IED precursors) and deleted 

a few chemicals at the recommendation 

of the FBI.39 The FBI Explosives Unit 40

recommended the inclusion of certain 

chemicals based on their experience 

investigating IED attacks and evaluating 

IED components. 

Of note in the realm of deleted 

chemicals (especially to the many 

commenters who requested their 

removal), the Department no longer 

includes acetone and urea in the 

appendix. Given the Department’s 

inclusion of concentrated nitric acid 

and concentrated hydrogen peroxide in 

the appendix, the Department does not 

believe it is necessary to include 

acetone and urea. The Department is 

concerned about these chemicals, 

because they can be mixed to create 

explosives (e.g., Triacetone Triperoxide 

(TATP) includes both acetone and 

hydrogen peroxide). The Department is 

electing, therefore, to list the more 

critical chemicals (i.e., concentrated 

hydrogen peroxide and concentrated 

nitric acid) of those mixtures. The effect 

is to target regulation to facilities 

possessing chemicals of interest to 

terrorists in order to thwart terrorism. 

The Department’s decision is 

supported by the conclusions of the 

National Research Council report. In 

pertinent part, the National Research 

Council provides: 

It is not feasible to control all possible 

chemical precursors to explosives. Efforts to 

control access should focus on the chemicals 

identified by the committee as current 

candidates for control in the United States. 

These chemicals are ammonium nitrate, 

sodium nitrate, potassium nitrate, 

nitromethane, concentrated nitric acid, 

concentrated hydrogen peroxide, sodium 

chlorate, potassium chlorate, and potassium 

perchlorate. Urea and acetone also meet the 

criteria for control but are adequately 

controlled if access to nitric acid and 

hydrogen peroxide is limited.41 (Emphasis in 

the original.) 

In its discussion of chemicals that 

pose the greatest threat in the United 

States because of their ability to be used 

to improvise bombs, the National 

Research Council further discussed 

nitric acid/urea and hydrogen peroxide/ 

acetone: 

Urea can be reacted with nitric acid to 

produce the explosive urea nitrate, the 

material used in the World Trade Center 

bombing. Urea is a nondetonable, ubiquitous, 

and inexpensive material with an annual 

production volume in North America of 19 

million short tons (IFDC, 1997). It is used 

extensively as a fertilizer, as a noncorrosive 

ice-melting material at public facilities and in 

private homes, and as a reagent in many 

chemical processes. Because urea is a 

relatively innocuous chemical with a wide 

range of uses, the committee believes that 

preventing access to urea nitrate for illegal 

purposes is more easily achieved by 

controlling the other critical component 

required to make an explosive: nitric acid.42

Nitric acid, which is toxic and highly 

corrosive, has many industrial applications 

but is not commonly available to the general 

public. For that reason, the committee 

believes that sales of nitric acid are much 

more traceable than those of urea. 

Furthermore, controls on nitric acid would 

provide greater leverage in efforts to prevent 

bomb attacks than would controls on urea, 

because nitric acid can be reacted with a 

wide range of organic materials (e.g., 

cellulose, glycerine, and amines) to produce 

explosives. Although much of the nitric acid 

produced is used in on-site chemical 

processes, a large amount is shipped in tank 

cars to chemical processing plants or 

packaged in drums for sale to commercial 

businesses such as etchers and metal platers. 

All of these uses are amenable to good sales 

record keeping. The committee believes that 

such sales records are probably adequate for 

current law enforcement needs.43

Hydrogen peroxide can be reacted with 

acetone to make the powerful explosive 

TATP, which has been used by terrorists 

abroad but not thus far to any great extent in 

the United States. It can be made in large 


rwilkins on PROD1PC63 with RULES_2
65406 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

44 Id. at p. 148. 

45 Id. at p. 148. 

46The table is located on pages 344–348 of the 

ERG 2004, which is available on the Web at 

http://hazmat.dot.gov/pubs/erg/gydebook.htm. 

47Toxic by Inhalation (TIH) is synonymous with 

Poisonous by Inhalation (PIH). 

quantities but is extremely unstable and 

dangerous to handle.44

Acetone, one of the most common organic 

solvents, can be purchased readily from 

many sources in large quantities. As in the 

case of nitric acid and urea, controlling 

access to TATP is achieved more readily by 

limiting the availability of hydrogen peroxide 

than by controlling acetone. As with controls 

on nitric acid, controls on hydrogen peroxide 

would be preferred because hydrogen 

peroxide can be reacted with chemicals other 

than acetone to produce explosives.45

The Department, after consultation with 

the FBI Explosives Unit, finds 

persuasive the conclusion of the 

National Research Council and removed 

acetone and urea from Appendix A. The 

Department also removed nitro urea and 

urea nitrate, neither of which is 

commercially available. 

With respect to hydrogen peroxide, 

the Department has adjusted the 

concentration. In the proposed 

appendix, the Department listed a 

concentration of ‘‘at least 30%.’’ In this 

final appendix, the Department has 

increased the concentration for 

hydrogen peroxide to 35%, a common 

technical and food grade of hydrogen 

peroxide. The original 30% 

concentration was based on IED 

precursor regulations proposed in 

Canada. The Department received 

comments from various industries about 

the importance of hydrogen peroxide 

and the most common commercial 

grades of the chemicals. In consultation 

with the FBI Explosives Unit, the 

Department has revised the 

concentration it set for hydrogen 

peroxide, believing that this change in 

concentration will not significantly 

increase the likelihood of missing a high 

risk chemical facility through the part 

27 program. 

b. STQ 

DHS has changed the STQ for theft/ 

diversion-EXP/IEDP chemicals from the 

proposed amount of 2,000 pounds to 

400 pounds. This new STQ equals the 

amount that is likely required to 

produce a small, vehicle-borne IED 

(VBIED). This STQ applies to all theft/ 

diversion-EXP/IEDP chemicals except 

for (1) ammonium nitrate, which the 

Department discusses below in section 

II(D)(3) and for (2) a few chemicals 

where DHS used a different STQ at the 

recommendation of the FBI Explosives 

Unit. Specifically, DHS set the STQ for 

aluminum powder, magnesium powder, 

and nitrobenzene at 100 pounds instead 

of 400 pounds, because DHS believes 

that the effect of these particular 

chemicals at these quantities would 

have the same effect as the other theft/ 

diversion-EXP/IEDP chemicals at 400 

pounds. 

c. Minimum Concentration (Mixtures) 

As provided in § 27.204(b)(3), a 

facility shall count toward the STQ the 

total quantity of all commercial grades 

of a theft/diversion-EXP/IEDP chemical 

at the facility unless a specific 

minimum concentration is assigned in 

the Minimum Concentration column of 

Appendix A to part 27, in which case 

the facility should count the total 

quantity of all commercial grades of the 

chemicals at or above the specified 

minimum concentration. There are 

specified minimum concentrations for a 

few of the theft/diversion-EXP/IEDP 

chemicals, such as hydrogen peroxide 

(35%) or ammonium nitrate (nitrogen 

concentration of 23% nitrogen or 

greater). DHS has added a definition of 

‘‘A Commercial Grade’’ (ACG) to 

§ 27.105. ACG refers to any quality or 

concentration of a chemical of interest 

offered for commercial sale that a 

facility uses, stores, manufactures, or 

ships. 

6. Sabotage/Contamination 

a. Chemicals 

Sabotage/contamination refers to 

those chemicals that, if mixed with 

other readily-available materials, have 

the potential to create significant 

adverse consequences for human life or 

health. The Department’s list of 

sabotage/contamination chemicals is 

substantially the same in the final 

appendix as it was in the proposed 

appendix. 

Sabotage/contamination chemicals 

currently include those chemicals that 

are capable of releasing a poisonous gas 

when exposed to water. In identifying 

the chemicals for this category, the 

Department referred to the table of 

‘‘Water-Reactive Materials Which 

Produce Toxic Gases’’ in the 2004 

Emergency Response Guidebook (ERG 

2004).46 The ERG 2004 is a joint 

publication of the U.S. Department of 

Transportation, Transport Canada, and 

the Secretariat of Communications and 

Transportation of Mexico. These 

materials are listed in the ERG 2004 as 

incompatible with water, because they 

produce large amounts of Toxic by 

Inhalation 47 gases when exposed to 

water. 

b. STQ 

In the proposed appendix, the STQ 

for sabotage/contamination chemicals 

was 2,000 pounds. The STQ now listed 

for sabotage/contamination chemicals is 

A Placarded Amount (APA). DHS added 

a definition of APA to § 27.105, 

providing that it refers to the STQ for a 

sabotage/contamination chemical of 

interest, as calculated in accordance 

with § 27.203(d). Section 27.203(d) 

provides that ‘‘[a] facility meets the STQ 

for a sabotage/contamination chemical 

of interest if it ships the chemical and 

is required to placard the shipment of 

that chemical pursuant to the provisions 

of subpart F of 49 CFR part 172.’’

Subpart F of 49 CFR part 172 contains 

the DOT placarding requirements 

within the DOT Hazardous Materials 

regulations. 

c. Minimum Concentration (Mixtures) 

As provided in § 27.204(c), a facility 

shall count toward the STQ the total 

quantity of all commercial grades of a 

sabotage/contamination chemical that it 

possesses unless a specific minimum 

concentration is assigned in the 

Minimum Concentration column of 

Appendix A to part 27, in which case 

the facility should count the total 

quantity of all commercial grades of the 

chemicals at the specified minimum 

concentration. DHS has added a 

definition of ‘‘A Commercial Grade’’

(ACG) to § 27.105. ACG refers to any 

quality or concentration of a chemical of 

interest offered for commercial sale that 

a facility uses, stores, manufactures, or 

ships. 

D. Chemicals With a Specialized 

Approach 

1. Propane 

Propane, a release-flammable 

chemical, is one of the many RMP 

flammable chemicals that DHS adopted 

from EPA’s RMP list. In the IFR, the 

proposed STQ for propane (an RMP 

flammable) was 7,500 pounds, which is 

seventy-five percent of the RMP TQ. 

Using the revised general DHS rule for 

release-flammables, the STQ for 

propane would be 10,000 pounds. DHS, 

however, set the STQ for propane in this 

final rule at 60,000 pounds. Sixty 

thousand pounds is the estimated 

maximum amount of propane that nonindustrial propane customers, such as 

restaurants and farmers, typically use. 

The Department believes that nonindustrial users, especially those in 

rural areas, do not have the potential to 

create a significant risk to human life or 

health as would industrial users. The 

Department has elected, at this time, to 

focus efforts on large commercial 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65407 

48Typical tank sizes include approximately 2,205 

pounds and 4,418 pounds. 

49 DHS used the RMP TQ for release-toxic 

chemicals, and the RMP TQ for chlorine is 2,500 

pounds. 

50Chlorine is a DOT Division 2.3 PIH gas in 

Hazard Zone B, and the baseline STQ for Hazard 

Zone B PIH gases is generally 45 pounds. 

51As with all theft/diversion chemicals, facilities 

must only count toward the theft-WME STQ for 

chlorine those quantities of chlorine in 

transportation packagings. See § 27.203(c). 

52The entry for this form of AN can be found in 

the DOT Hazardous Materials Regulations at 49 CFR 

§ 172.101. 

53Where AN as an explosive presents a theftEXP/IEDP security issue, the STQ is 400 pounds, 

and a facility is expected to include all amounts of 

ACG of AN when determining whether it meets or 

exceeds the STQ. And, per § 27.203(c), in 

calculating this theft STQ, facilities need only count 

amounts in transportation packagings. 

54Consistent with the mixtures provision for all 

release-explosives (see § 27.204(a)(3)), facilities are 

expected to include all amounts of ACG of AN in 

calculating the STQ. 

propane establishments but may, after 

providing the public with an 

opportunity for notice and comment, 

extend its part 27 screening efforts to 

smaller facilities in the future. This 

higher STQ will focus DHS’s security 

screening effort on industrial and major 

consumers, regional suppliers, bulk 

retail, and storage sites and away from 

non-industrial propane customers. The 

minimum concentration and mixtures 

provisions for propane are the same as 

for all other release-flammables. 

Pursuant to § 27.203(b)(3), facilities 

need not include propane in tanks of 

10,000 pounds or less when calculating 

whether a facility has a total inventory 

of 60,000 pounds. DHS included this 

provision, in part, because of its desire 

to exclude farmers and agricultural 

users of propane who routinely have 

three or more propane tanks 48 for 

heating their homes and/or their 

chicken/turkey houses. If DHS listed 

propane at 10,000 pounds (the STQ for 

all other release-flammable chemicals), 

many more entities, including 

homeowners, farmers, and small 

businesses, would have to complete and 

submit the Top-Screen. DHS does not 

expect that such dispersed inventories, 

often located away from population 

centers, are likely to meet its definition 

of high risk chemical facilities. DHS 

believes that the revised approach 

toward propane is better geared toward 

identifying and addressing the risks 

associated with major propane 

inventories. 

2. Chlorine 

In the proposed appendix, DHS set 

the STQ for chlorine at 1,875 pounds. 

There are two security issues associated 

with chlorine, each with its own STQ. 

Using the DHS baseline rules, the STQ 

for chorine as a release-toxic would be 

2,500 pounds,49 and the STQ for 

chlorine as a theft/diversion-WME 

chemical would be 45 pounds.50

Consistent with all other release-toxic 

chemicals, DHS set the release-toxic 

STQ for chlorine at 2,500 pounds and 

requires facilities to use the calculation 

and mixtures provisions that apply to 

all other release-toxic chemicals. See 

§§ 27.204(a)(1) and 27.203(b)(1)(i)–(ii). 

DHS, however, developed a unique 

approach for chlorine where it presents 

a theft/diversion-WME security issue. 

Instead of 45 pounds, DHS established 

a higher STQ for the theft-WME STQ for 

chlorine—500 pounds.51 Five hundred 

pounds is the equivalent of five 

standard 100-pound cylinders. (The 

minimum concentration for chlorine 

that presents a theft-WME security issue 

is 9.77%.) Setting the theft/diversionWME STQ for chlorine at 45 pounds 

would have been both burdensome for 

numerous manufacturers (which are 

reliant on chlorine as a starting material) 

and difficult for DHS to effectively 

implement, manage, and enforce. The 

U.S. produces 11 million metric tons of 

chlorine per year. The vast majority of 

chlorine production is used for 

processing a wide range of paper, 

plastic, textile, medicine, insecticides, 

paint, and other materials. Chlorine is 

also used in water and wastewater 

treatment. While most chlorine is 

consumed at the facility where it is 

produced, four million metric tons are 

shipped annually in small containers, 

one-ton containers, and cargo tank 

motor vehicles, and tank cars across the 

country. 

Given the enormous production, 

transportation, and importance of 

chlorine, DHS increased the theft/ 

diversion-WME STQ for chlorine from 

45 pounds to 500 pounds. DHS believes 

that quantities less than 500 pounds 

would capture facilities that are 

unlikely to present significant 

consequences. This amount is 

considered a portable and transportable 

amount that could be diverted or stolen. 

Overall, DHS’s approach toward 

chlorine recognizes that chlorine is 

distinct from other WME precursors in 

terms of its broad utility and 

availability. 

3. Ammonium Nitrate (AN) 

In proposed Appendix A, the 

Department identified only one form of 

ammonium nitrate (nitrogen 

concentration of 28%–34%) and set the 

STQ at 2,000 pounds. Based on the 

consideration of comments, the 

Department has revised its approach in 

this final appendix, identifying AN in 

two forms: (1) The DOT Division 1.1 

explosive found in 49 CFR 172.101 and 

(2) the more common form frequently 

used as a fertilizer. DHS assigned a STQ 

to each form. Given the breadth of AN’s 

use and history, DHS has crafted a 

specialized approach to address this 

chemical’s specific security concerns. 

The first entry for AN in the appendix 

addresses AN as an explosive. The 

Department has listed the DOT Division 

1.1 explosive: Ammonium nitrate [with 

more than 0.2 percent combustible 

substances, including any organic 

substance calculated as carbon, to the 

exclusion of any other added 

substance].52 As an explosive, AN 

presents two security issues: Theft/ 

diversion-EXP/IEDP and releaseexplosive. DHS is treating the possible 

theft/diversion of this form of AN in the 

same way that it is treating all other 

DOT Division 1.1 explosives.53 Where a 

facility has larger amounts of AN as an 

explosive, there may also be release 

hazards. As that is the case, DHS has set 

the STQ for the possible release of AN 

as an explosive at 5,000 pounds.54 That 

STQ is the same TQ that EPA had set 

for DOT Division 1.1 explosives when 

EPA included such substances in its 

RMP rule. 

The second entry for AN in the 

appendix addresses the more common 

form of AN in solid form with a nitrogen 

concentration of 23% or greater. This 

form of AN is largely used in the 

agricultural community and in amounts 

that typically exceed 400 pounds (the 

STQ for all other theft/diversion-EXP/ 

IEDP chemicals). Given the 

circumstances surrounding its use (i.e., 

extensive use in the agricultural 

industry), DHS has set the STQ for this 

form of AN at 2,000 pounds. (This form 

of AN in a mixture will count toward 

the STQ in a minimum concentration of 

33% or more.) This STQ is geared 

toward ensuring that DHS secures AN 

inventories at major manufacturing and 

distribution facilities, as opposed to 

individual farmers involved mainly in 

the application of AN. DHS believes that 

terrorists are interested in maximizing 

death and injuries from an attack and 

are, therefore, less interested in 

attacking facilities in rural areas or other 

areas with low population densities. 

DHS referenced many sources in 

developing this approach. In addition to 

considering DOT and EPA regulations, 

DHS consulted with Departmental 

experts, such as the DHS Office for 

Bombing Prevention, which administers 

the Bomb Making Awareness Program, 

and other federal experts, such as the 

FBI Explosives Unit. The Department’s 


rwilkins on PROD1PC63 with RULES_2
65408 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

55The Explosives Regulatory Division (ERD) of 

Natural Resources Canada has posted the proposed 

regulation on their Web site at http:// 

www.nrcan.gc.ca/mms/explosif/pdf/ 

RestrictedComp_e.pdf. 

56This includes, for example, calcium dithionite 

(already listed as calcium hydrosulfite), sodium 

dithionite (already listed as sodium hydrosulfite); 

zinc dithionite (already listed as zinc hydrosulfite); 

and dimethyl phosphoramido-dichloridate (already 

listed as N, N-dimethyl phosphoramidic 

dichloride). 

57This includes, for example, chromium 

oxychloride; DF, dinitroresorcinol; dipicrylamine 

[or] hexyl (formerly listed as 

hexanitrodiphenylamine, which is now listed as a 

synonym); hexyltrichlorosilane; magnesium 

aluminum phosphide (now listed separately as 

magnesium phosphide and aluminum phosphide); 

octonal; octolite; sodium phosphide; strontium 

phosphide; torpex (formerly listed as hexotonal); 

and trinitronaphthalene. 

58This includes, for example, 1-pentene; boron 

trifluoride (and its synonym borane, trifluoro); 

boron trifluoride compound with methyl ether (1:1); 

pentaerythritol tetranitrate; propyl chloroformate; 

sulfur tetrafluoride (and its synonym sulfur 

fluoride); and vinyl acetylene. 

59For hydrofluoric acid (conc. 50% or greater), 

which presents a release-toxic security issue, DHS 

assigns a STQ of 1000 pounds and minimum 

concentration of 50% or greater. For hydrogen 

fluoride (anhydrous), when it presents a releasetoxic security issue, DHS assigns a STQ of 1,000 

pounds and a minimum concentration of 1.00%. 

For hydrogen fluoride (anhydrous), when it 

presents a theft-WME security issue, DHS assigns a 

STQ of 15 pounds and a minimum concentration 

of 42.53%. 

approach was further supported by 

international resources, including the 

British Health and Safety Executive’s 

publication titled ‘‘Storing and 

Handling Ammonium Nitrate’’ and 

Canada’s proposed regulations on 

Restricted Components issued pursuant 

to Canada’s Explosives Act.55

E. Technical Corrections 

DHS made several technical 

corrections to the chemicals listed in 

Appendix A, and those corrections, 

many of which are highlighted below, 

improve the accuracy of the list. Many 

commenters assisted DHS in identifying 

these items. DHS removed the entries 

for certain chemicals (because they were 

synonyms for already-listed chemicals) 

and instead listed them as synonyms in 

the new ‘‘Synonyms’’ column.56 DHS 

also corrected the Chemical Abstract 

Service (CAS) number for several 

chemicals 57 and the spelling and/or 

name of other chemicals.58

In addition, DHS made chemicalspecific edits. For example, DHS 

separated the entry for ‘‘hydrogen 

fluoride/hydrofluoric acid (conc. 50% 

or greater)’’ into two entries. DHS had 

included them as one listing in the 

proposed listing, because they were 

included as such on EPA’s RMP list. As 

they are two different chemicals (one is 

a gas and the other is a fuming liquid), 

albeit with the same CAS number, DHS 

has separated them into two entries.59

As another example, DHS clarified the 

inclusion of various explosive 

chemicals. The Department added RDX/ 

cyclotrimethylenetrinitramine (CAS 

#121–82–4), which had been 

inadvertently omitted in the proposed 

appendix. The Department is including 

this DOT Division 1.1 explosive, 

because the Department is including all 

such DOT Division 1.1 explosives, given 

the risk of their theft or diversion for 

terrorism purposes. The Department 

now lists HMX under its common name 

(i.e., HMX); in the proposed appendix, 

the Department had listed HMX under 

its chemical name 

(cyclotetramethylenetetranitramine). 

Note, however, that the Department has 

included HMX’s chemical name in the 

synonym column for the HMX entry. 

III. Discussion of Comments 

In the Interim Final Rule, DHS sought 

comment on the proposed list of DHS 

Chemicals of Interest in Appendix A to 

part 27. DHS received approximately 

4,300 public comments, and almost 

4,000 of those comments were related to 

the issues surrounding propane. 

Commenters to the proposed appendix 

included trade associations, citizens, 

companies, universities, hospitals and 

research facilities, and members of 

Congress. In the sections below, DHS 

provides a topical summary of the 

comments and responses to those 

comments. 

A. Specific Chemicals or Types of 

Chemicals 

1. In General 

Comment: Commenters suggested that 

DHS should remove chemicals that are 

widely used in the U.S., (e.g., acetone, 

chlorine, propane, sodium nitrate, urea), 

asserting that such chemicals should not 

be regulated as a chemical security risk. 

Some argued that commonly available 

chemicals are unlikely targets of theft 

from a facility. Other commenters 

provided specific arguments why DHS 

should not regulate commonplace 

chemicals: Carbon monoxide is a 

common byproduct that can occur 

frequently in everyday locations (e.g., 

from a car, heater, or furnace). Hydrogen 

sulfide is a natural byproduct that is 

easily generated, whether in labs during 

reactions or from geothermal facilities. 

Yet other commenters thought that 

there was only limited harm from other 

chemicals, and so DHS should not 

regulate those chemicals. For example, 

potassium nitrate and sodium nitrate do 

not ignite on their own, therefore the 

explosive hazard from those chemicals 

is reduced, and so DHS should not 

regulate these chemicals on their own. 

And, the flashpoint of triethanolamine, 

at 212 degrees Fahrenheit, is so high 

that it would have to be extremely hot 

for the chemical to heat up, ignite, and 

become an explosive hazard. 

Response: The Department has 

included the chemicals of interest in 

Appendix A due to their potential, 

when used as part of an attack, to create 

significant human life or health 

consequences. Each of these chemicals 

presents at least one of the security 

issues described in section II above. Not 

only has the Department carefully 

weighed the value of including any 

given chemical, but the Department has 

clearly defined the parameters for each 

chemical. In this final rule, the 

Department has replaced the ‘‘any 

amount’’ STQs (that it proposed in the 

IFR) with numerical quantities. The 

Department has also provided 

instruction on how a facility should 

calculate an STQ and how a facility 

should consider chemicals of interest in 

a mixture. See §§ 27.203 and 27.204. 

In addition, the Department reiterates 

that possession of a chemical of interest 

listed in Appendix A does not equate to 

coverage under the standards in part 27. 

Possession of a chemical of interest at 

the listed STQ is merely a trigger for a 

facility to complete and submit a TopScreen. Furthermore, when a facility 

completes a Top-Screen, that 

information becomes but one factor in 

the Department’s determination of 

whether a facility presents a high level 

of security risk. 

In response to the comments about 

specific chemicals, the Department 

replies as follows: DHS removed carbon 

monoxide from the list as part of its 

larger decision to remove DOT Division 

2.3 PIH gases in Hazard Zone D. Carbon 

monoxide is a Hazard Zone D PIH gas. 

DHS continues to list hydrogen sulfide 

on the list, because it meets the 

Department’s criteria for both releasetoxic and theft/diversion-WME 

chemicals. EPA lists hydrogen sulfide as 

a release-toxic on its RMP list. Aside 

from the exceptions noted above, DHS 

has included as release-toxics in 

Appendix A all of the toxics on EPA’s 

RMP list. Also, DOT identifies hydrogen 

sulfide as a Division 2.3 PIH gas, Hazard 

Zone B. Aside from the exceptions 

noted above, DHS has included all of 

the DOT Division 2.3 PIH gases as theft/ 

diversion-WME chemicals in Appendix 

A. DHS, however, excludes naturally 

occurring sources (such as geothermal 

operations) of hydrogen sulfide 

pursuant to § 27.203(a)(9). DHS 

continues to list potassium nitrate and 

sodium nitrate, although they are 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65409 

common oxidizers, they could be used 

to create IEDs. Finally, DHS continues 

to list triethanolamine, because it can be 

easily converted into a chemical 

weapon, not because of the flashpoint or 

other physical characteristics of the 

chemical itself. 

Comment: Commenters remarked on 

how some Appendix A chemicals of 

interest, such as acetone, propane, and 

urea, are preferable to possible 

substitutes not on Appendix A, due to 

their comparatively lower toxicity or 

environmental impact. In particular, 

they noted that the inclusion of certain 

chemicals means that facilities, in an 

attempt to avoid going through the 

screening process, will transition away 

from Appendix A chemicals and 

possibly toward more dangerous 

substitutes. For example, in lieu of 

acetone, facilities might transition to the 

use of more toxic solvents. 

Response: With respect to the specific 

chemicals mentioned, DHS notes that, 

for the reasons discussed above, DHS 

has removed acetone and urea from the 

list of chemicals, and it has 

substantially revised the STQ for 

propane. As for concerns that facilities 

will transition to more dangerous 

substitute chemicals, DHS makes the 

following points. Appendix A is DHS’s 

first attempt to identify chemicals of 

interest around which there are serious 

security concerns, and the aim of 

Appendix A is to provide a screening 

tool for the DHS chemical security 

regulatory program. If there is a need to 

address different or additional 

chemicals in the future, DHS has the 

option of revising Appendix A, subject 

to notice and comment when 

appropriate, to include any different or 

additional chemicals. The Department 

also has the ability to reach out directly 

to facilities it believes may present a 

high level of security risk, even for 

chemicals not included in Appendix A. 

See 27 CFR 27.210(a)(1)(ii). 

While facilities covered by part 27 

have flexibility in deciding how to meet 

the part 27 requirements (for example, 

a facility can choose to reduce, 

substitute, or eliminate its inventory of 

an Appendix A chemical of interest at 

any time), DHS will, through its review 

of Site Security Plans and visits to 

facilities, determine whether facilities 

have adequately selected, developed, 

and implemented risk-based measures 

designed to satisfy the risk-based 

performance standards. See 27 CFR 

27.225 and 27.245. 

Comment: One association 

recommended that DHS exclude from 

the list anhydrous ammonia used for 

food refrigeration and contained in 

closed-loop refrigeration systems. 

Another individual, however, supported 

DHS inclusion of facilities that use 

anhydrous ammonia either for 

refrigeration during food processing and 

storage or as part of emission controls 

for coal-fired electrical generation, 

because such facilities are typically near 

population centers and transportation 

systems. Several other commenters 

urged DHS to increase the 7,500 pound 

STQ for anhydrous ammonia, so that it 

would match the TQ for other regulatory 

programs. 

Response: As a toxic chemical 

utilized across industries, DHS believes 

that anhydrous ammonia can present a 

high risk and, under certain 

circumstances, generate major 

consequences for human life or health. 

Therefore, DHS continues to include 

anhydrous ammonia in the list of 

chemicals. DHS, however, raised the 

STQ for anhydrous ammonia to 10,000 

pounds. That tracks the amount that 

EPA uses in its RMP regulation. See 40 

CFR 68.130, Table 1. DHS expects that 

facilities will count toward their STQ 

the quantity of anhydrous ammonia 

stored as part of a refrigeration system 

in addition to the quantity of anhydrous 

ammonia in the actual system 

Comment: Manufacturing plants 

pointed out that most plants need a 

minimum inventory of nitric acid to 

operate efficiently. Commenters assert 

that 2,000 pounds, the amount proposed 

in Appendix A, is too low to operate 

efficiently, and therefore, large numbers 

of manufacturing plants would have to 

go through the Top-Screen process. 

Other commenters remarked that nitric 

acid is included in the inventory of 

laboratories at colleges and universities. 

Response: The Department continues 

to include nitric acid in Appendix A 

given the security risks it presents. In 

large quantities, nitric acid presents a 

release hazard, and so DHS has set the 

STQ at 15,000 pounds. In addition, DHS 

is aware that nitric acid, in smaller 

quantities, is useful in creating IEDs. 

DHS has set the STQ for divertible 

quantities of nitric acid (i.e., amounts in 

transportation packagings) at 400 

pounds. 

2. Propane 

In proposed Appendix A, the 

Department included propane on the 

list of Chemicals of Interest (COI) with 

a STQ of 7,500 pounds. 

Comment: DHS received almost 4,000 

comments related to propane, and many 

of these comments disagreed with the 

proposed inclusion of propane and the 

proposed STQ for propane. There were 

comments from propane distributors 

and retailers; agricultural businesses; 

private citizens; and numerous small 

business, including forklift operators, 

camp grounds, parks, bakeries, and 

construction companies. 

Agricultural businesses indicated that 

they use propane for multiple purposes, 

including heating their chicken and/or 

turkey houses, drying produce, or 

keeping livestock and farm produce 

warm. They indicated that many farms 

have multiple tanks of propane and that 

the regulation will impact many small, 

family-owned farms, which will have to 

complete the Top-Screen. Others 

pointed out that these propane tanks on 

farms are often separated by a 

significant distance or a building. 

Propane distributors and retailers 

indicated that their main customer base 

is residential, commercial/industrial, 

motor fuel, agricultural, and wholesale. 

In the residential market, propane is 

used primarily for home heating, water 

heating, and cooking purposes. Many 

commenters stated that a significant 

percentage of their customer base, 

including residential users, would have 

to complete and submit a Top-Screen 

under the proposed threshold. They 

speculated that this might force propane 

users to shift to other more 

environmentally hazardous fuel sources. 

Retailers and distributors also claimed 

that customers had already begun to 

request the completion and submission 

of the Top-Screen on their behalf. 

Commenters asserted that the worst 

case scenario of an explosion from a 

1,000 gallon tank of propane is only 

approximately 500 feet for a 1 psi overpressure condition. While that type of 

incident is enough to break windows 

and cause injuries due to glass shrapnel, 

they did not think it would be likely to 

cause structural damage and, hence, 

should not be considered as a national 

security threat. 

Many commenters felt that that DHS 

had gone beyond the limitations 

contained in Section 550 of the 

Department of Homeland Security 

Appropriations Act of 2007, which they 

asserted provides that nothing in the 

rules can supersede other federal laws 

pertaining to the manufacture, 

distribution in commerce, use, or sale of 

chemicals. See Section 550(f). 

Commenters offered suggestions for 

revisions. Many commenters suggested 

that DHS should incorporate the 

statutory exemptions from EPA’s Risk 

Management Program rules, including 

the statutory exemptions from the 

Chemical Safety Information, Site 

Security, and Fuels Regulatory Relief 

Act (Pub. L. 106–40). Commenters also 

proposed that DHS add a footnote to the 

Appendix A entry for propane, 

indicating that regulated entities need 

not count all propane storage tanks of 


rwilkins on PROD1PC63 with RULES_2
65410 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

less than 1,200 gallons toward the 

threshold amount. 

Response: The Department continues 

to include propane in the list of 

chemicals in Appendix A. The 

Department has not adopted the 

statutory exemption from the Chemical 

Safety Information, Site Security, and 

Fuels Regulatory Relief Act (Pub. L. 

106–40). That Act amended the Clean 

Air Act to remove flammable fuels from 

the list of substances with respect to 

which reporting and other activities are 

required under the risk management 

plan program, and for other purposes. 

EPA codified that provision at 40 CFR 

68.126. Congress did not include such a 

provision exempting propane in the 

authorizing legislation for part 27, and 

so DHS has not exempted propane from 

part 27. The Department disagrees with 

the statement that the Department has 

gone beyond the limitations contained 

in Section 550. The listing of propane in 

Appendix A merely triggers the 

requirement that a facility (possessing 

the listed amount) complete and submit 

a Top-Screen to DHS. That, in no way, 

supersedes any other federal law 

regulating manufacture, sale, or use of 

propane. 

The Department, however, has 

changed several provisions related to 

propane, as discussed in section II(D)(1). 

The Department believes its approach to 

securing significant stocks of propane is 

informed, manageable, and 

proportionate to its existing use and risk 

profile. In response to the comment 

about propane storage tanks, the 

Department notes that, per 

§ 27.203(b)(3), DHS will not require 

facilities to include quantities of 

propane in tanks of 10,000 pounds or 

less. 

3. Chlorine 

In proposed Appendix A, the 

Department included chlorine on the 

list with an STQ of 1,875 pounds. 

Comment: Many commenters 

provided input on DHS’s inclusion of 

chlorine on the COI list. The majority of 

commenters encouraged DHS to use the 

EPA RMP TQs for all RMP release-toxic 

chemicals, including chlorine. They 

argued that the RMP TQ of 2,500 

pounds is a well-reasoned number and 

that the chemical industry is familiar 

with that number. As an additional 

argument against an STQ of 1,875 

pounds, commenters argued that large 

amounts of chlorine are readily 

available through production or 

purchase given its diversified uses in 

and across the water treatment, 

electronics, steel, pharmaceutical, and 

plastics industries. Similarly, other 

commenters asserted that water and 

wastewater treatment facilities possess 

chlorine, however those locations are 

not chemical facilities in a traditional 

sense and therefore they are lower risk 

locations. 

By contrast, one individual 

commenter recommended a lower STQ 

for chlorine. The commenter suggested 

that DHS should lower the STQ for 

chlorine to 150 pounds, which is the 

size of a commonly available 

commercial cylinder. The commenter 

was concerned that the theft of small 

containers of chlorine would enable a 

terrorist to use chlorine gas in attacks on 

public gatherings. 

Response: While the Department 

recognizes the importance of chlorine to 

the Nation’s critical infrastructure and 

key resources, and especially the 

chemical sector, the Department also 

realizes that the theft/diversion of 

chlorine to develop a WME is a serious 

security concern. Recent terrorist 

incidents involving chlorine cylinders 

in Iraq have reinforced this concern. To 

balance these concerns, the Department 

has developed a revised approach 

toward chlorine, which is discussed in 

section II(D)(2) above. With this 

approach, the Department hopes to 

facilitate the introduction and 

implementation of security standards 

that prevent the theft or diversion of 

chlorine for terrorist purposes without 

unduly interfering with the continued, 

legitimate production, transportation, 

and use of chlorine. In response to the 

comment about public water systems 

and water treatment systems, the 

Department notes that it has excluded 

those systems consistent with the 

statutory exclusion in Section 550 (see 

§ 27.110(b)). 

4. Ammonium Nitrate (AN) 

In proposed Appendix A, the 

Department included ammonium nitrate 

(nitrogen concentration of 28%–34%) 

on the list of COI with a STQ of 2,000 

pounds. 

Comment: There were several 

comments about AN with most 

commenters supporting the inclusion of 

AN on the COI list. Several commenters 

remarked on the reduced availability of 

AN fertilizer due to liability concerns 

over its use in terrorism. Commenters 

expressed differing opinions on the 

percentage of nitrogen in AN that DHS 

should consider for purposes of 

preventing AN’s use as an explosive 

precursor. Commenters requested 

clarification of the STQ and whether it 

applied to solid, liquid, and/or mixtures 

of AN. 

Response: DHS revised its approach 

toward ammonium nitrate, as discussed 

above in section II(D)(3). This revised 

approach recognizes that AN is integral 

to the agriculture and explosives 

industries, yet also seeks to satisfy the 

DHS mandate to enhance the security of 

facilities that present a high level of 

risk. 

5. Acetone and Urea 

In proposed Appendix A, the 

Department included acetone and urea 

on the list, each with an STQ of 2,000 

pounds. 

Comment: The Department also 

received a large number of comments on 

acetone and urea. Commenters from a 

wide array of industries remarked on 

the important uses and widespread 

availability of these two chemicals. 

Commenters noted that, while other 

regulatory regimes cover acetone and 

urea, they typically do so for amounts 

lower than the proposed STQ of 2,000 

pounds. 

Response: The Department’s initial 

concerns around acetone and urea 

centered on its potential theft and 

diversion for use as an explosives 

precursor. After considering the 

comments received and consulting with 

expert sources, including the FBI 

Explosives Unit and the report 

produced by the National Research 

Council, the Department does not 

believe that acetone and urea need to be 

tracked as closely the Department tracks 

other explosives precursors, especially 

concentrated hydrogen peroxide and 

nitric acid. The Department has 

removed acetone and urea from the list 

of Chemicals of Interest in Appendix A. 

6. Chemical Weapons (CW) and 

Chemical Weapons Precursors (CWP) 

Comment: While commenters 

supported the Department’s reference to 

the Schedules of chemicals from the 

CWC, commenters generally noted that 

applying an STQ of ‘‘any amount’’ for 

all CWC chemicals was unnecessarily 

low. With the exception of Schedule 1 

chemicals, which are weapons and 

therefore merit a relatively low STQ, 

commenters thought that the ‘‘any 

amount’’ STQ would create 

unreasonable compliance challenges for 

facilities. Commenters urged DHS to use 

the CWC Schedule 2 TQs for Schedule 

2 CW/CWP chemicals. Commenters also 

remarked on the widespread 

commercial use of triethanolamine (a 

Schedule 3 chemical) in and across the 

chemical, personal care, and consumer 

products industries. 

Response: The Department has 

replaced all ‘‘any amount’’ STQs for 

theft/diversion-CW/CWP chemicals 

with numerical quantities. The 

Department did not use the CWC TQs 

for Schedule 2 chemicals because those 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65411 

amounts are too high. Those higher 

amounts are designed to prevent the 

development of state-level chemical 

weapons programs, not to prevent acts 

of chemical terrorism. DHS identified 

the STQ for Schedule 2 chemicals (at 

2.2 pounds) by identifying how much 

one would need of the chemical to 

convert it easily into a weapon using 

simple chemistry. DHS included 

triethanolamine and several other 

Schedule 3 chemicals in the final 

appendix due to the ease with which 

they may be weaponized. 

7. Explosives 

Comment: The American 

Pyrotechnics Association requested that 

DHS remove four oxidizers (ammonium 

perchlorate greater than 15 microns in 

size, potassium chlorate, potassium 

nitrate, and potassium perchlorate) from 

the list of chemicals in Appendix A. 

The American Pyrotechnics Association 

explained that, while these chemicals 

are used in pyrotechnic mixtures, they 

would neither create a highly toxic 

cloud nor could they be used in an 

explosive, flammable, or reactive 

manner until they were properly 

blended with an energetic fuel. In order 

to create an oxidizer and fuel bomb, one 

must go through extensive and difficult 

steps to obtain the materials and then 

must have the proper training to mix the 

chemicals in the proper ratio. In other 

words, terrorists would have to 

complete extensive measures to secure 

chemicals that would do very little 

damage. Commenters noted that neither 

DOT nor ATF classify the four oxidizers 

as explosives, and so therefore DHS 

should not either. 

Response: DHS has considered the 

American Pyrotechnics Association’s 

comments and, based on consultations 

with expert sources (including the FBI 

Explosives Unit) the Department has 

determined that it is still desirable to 

include these four oxidizers on the list 

of chemicals in Appendix A. DHS is 

including ammonium perchlorate on the 

list, because it is a DOT Class 1, 

Division 1.1 explosive that presents two 

security issues (see section II(C) above): 

theft/diversion-EXP/IEDP and releaseexplosive. It is at risk of theft and 

misuse for making explosives, and it 

could present a release hazard from a 

successful attack on a facility with a 

large (5,000 pounds or greater) 

inventory. 

DHS is including the three potassium 

compounds (potassium chlorate, 

potassium nitrate, and potassium 

perchlorate), because they are IED 

precursors that warrant enhanced 

security. The National Research Council 

listed these chemicals in its report titled 

Containing the Threat from Illegal 

Bombings: An Integrated National 

Strategy for Marking, Tagging, 

Rendering Inert, and Licensing 

Explosives and Their Precursors. The 

FBI’s Explosives Unit has validated 

such conclusions for DHS. 

8. Hydrogen Peroxide 

Comment: Given the availability of 

acetone, one commenter requested that 

DHS remove acetone from the list and 

retain hydrogen peroxide at 30%, if 

DHS was concerned about these 

chemicals being misused to make 

Triacetone Triperoxide (TATP). 

Commenters from the food, feed, steel, 

cleaning, and other industries remarked 

on the varied uses for commercial 

strength hydrogen peroxide as well as 

hydrogen peroxide formulations. The 

majority of commenters recommended 

that DHS adopt OSHA’s and EPA’s 

standard approach to listing hydrogen 

peroxide at a 52% concentration under 

their Process Safety Management (PSM) 

regulations and Risk Management 

Program (RMP), respectively. 

Response: DHS listed hydrogen 

peroxide in the proposed Appendix A 

and continues to list it as a theft/ 

diversion-EXP/IEDP chemical in final 

Appendix A because of its proven 

potential as an IEDP. In the final 

appendix, the Department listed 

‘‘hydrogen peroxide (concentration of at 

least 35%)’’ on the list of chemicals and 

also set the minimum concentration for 

hydrogen peroxide at 35%. For a 

discussion of the Department’s 

approach to hydrogen peroxide, see 

section II(C)(5) above. 

Commenters have requested that DHS 

use a 52% concentration for hydrogen 

peroxide, which they assert would be 

consistent with certain OSHA and EPA 

standards. While DHS understands 

industry’s preference for consistent 

rules across federal agencies, DHS notes 

that DHS’s mandate is distinct from 

other federal agencies that already 

regulate hydrogen peroxide. Both OSHA 

and EPA are concerned with accidental 

release and/or the detonation of 

hydrogen peroxide and so regulating 

concentrations of 52% or greater is 

reasonable given their mandates. DHS is 

charged with ensuring effective security 

at high risk chemical facilities. The 

security issue around hydrogen 

peroxide, a common IED precursor, 

demanded that DHS identify the 

concentration at which hydrogen 

peroxide is potentially useful to 

terrorists as an IED precursor. DHS, in 

consultation with the FBI, has 

determined that concentration to be at 

or above 35%. In any event, setting the 

Appendix A concentration at 35% for 

triggering the Top-Screen requirements 

in no way precludes any facility from 

meeting OSHA or EPA standards. 

B. Coverage of Appendix A 

1. Colleges and Universities 

Comment: Colleges, universities, and 

university medical centers; associations 

that represent these institutions; and 

individuals associated with such 

institutions requested that DHS exempt 

these institutions or modify the rule to 

address the use of chemicals of interest 

at these institutions. Many colleges and 

universities endorsed the comments of 

the Campus Safety Health and 

Environmental Management Association 

(CSHEMA), which asserted that 

chemicals of interest do not pose a 

significant risk when they are widely 

dispersed in many locations, and in 

extremely small quantities per location, 

as is typical with colleges and 

universities. CSHEMA contended that 

DHS must not have intended to include 

colleges and universities given DHS’s 

estimate of the number of affected 

facilities. CSHEMA also asserted that 

Appendix A imposes a heavy burden on 

colleges and universities and that the 

task of submitting a Top-Screen will be 

onerous for colleges and universities; in 

particular CSHEMA asserts that the time 

and cost burden of complying with the 

Top-Screen requirement will be 

exponentially higher than that which 

DHS estimated. CSHEMA made several 

recommendations; namely, that DHS 

replace all ‘‘any amount’’ STQs with a 

numeric quantity (CSHEMA suggested a 

minimum STQ of 100 pounds). 

CSHEMA also recommended that DHS 

exclude chemicals in containers of one 

pound or less and that DHS create a perlaboratory STQ. 

Other commenters provided similar 

comments. They explained that 

Appendix A includes numerous 

chemicals of interest that are found or 

synthesized at colleges and universities 

in amounts that exceed the ‘‘any 

amount’’ STQs. As a result, nearly all 

colleges, universities, and university 

hospitals would be required to complete 

and submit a Top-Screen. Because COI 

in extremely small quantities (typically 

milligram or gram quantities per 

container) are widely dispersed in many 

locations throughout universities, the 

commenters believe that these facilities 

pose no significant security risk. 

Commenters were also concerned that, 

while no one location on campus might 

exceed a threshold, the campus or 

university as a whole (particularly since 

there might be multiple campuses), 

might exceed an STQ. Commenters 

suggested that DHS provide an 


rwilkins on PROD1PC63 with RULES_2
65412 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

60Part 27 defines a ‘‘chemical facility or facility’’

as ‘‘any facility that possesses or plans to possess, 

at any relevant point in time, a quantity of a 

chemical substance determined by the Secretary to 

be potentially dangerous or that meets other riskrelated criterion identified by the Department. As 

used herein, the term chemical facility or facility 

shall also refer to the owner or operator of the 

chemical facility. Where multiple owners and/or 

operators function within a common infrastructure 

or within a single fenced area, the Assistant 

Secretary may determine that such owners and/or 

operators constitute a single chemical facility or 

multiple chemical facilities depending on the 

circumstances.’’ See § 27.100. 

As noted in the preamble to the IFR, DHS 

believes that it will generally be straightforward for 

facilities to define their boundaries and identify the 

party (at their facility) responsible for compliance 

with the regulation. DHS acknowledges that, in 

some circumstances, the issue might be more 

complex. The Department will address those 

situations on a case-by-case basis. See 72 FR 17697. 

In addition, as indicated in the definition of 

‘‘chemical facility,’’ the Assistant Secretary has the 

authority, where necessary, to make a 

determination about the operations at given facility 

or facilities. The Assistant Secretary may make the 

determination that a facility is a single chemical 

facility or multiple chemical facilities. 

exemption, as does OSHA and EPA 

regulations, for laboratories that use 

small quantities of hazardous materials. 

Many college and universities 

described the security procedures that 

they currently have in place and stated 

that such procedures are adequate to 

protect against the security risks that 

they face. They asserted that it would 

impose significant burdens to exceed 

these measures. For example, while they 

currently do some chemical tracking, 

they believe that identifying and 

tracking very small amounts of 

chemicals for Appendix A purposes 

would impose a substantial new burden. 

Furthermore, they did not think that the 

risk posed by these quantities justifies 

the substantial burden that tracking 

would impose. Others maintained that, 

while locations can be secured, other 

security measures contained in the Site 

Security Plans would be antithetical to 

institutions of higher learning. 

As an alternative to seeking an 

exemption from the regulation for 

colleges and universities, commenters 

made a variety of other suggestions. A 

few commenters urged DHS to adopt 

different STQs or to exclude chemicals 

of interest that are used in laboratories 

at colleges and universities. They 

recommended that DHS replace ‘‘any 

amount’’ with numeric threshold 

quantities and that DHS base those 

quantities on amounts used by other 

federal agencies. Other commenters 

proposed a per container limit for COI, 

similar to what the EPA uses for its Spill 

Prevention Control and Countermeasure 

regulations. See 40 CFR part 112. As 

noted above, CHSEMA proposed a one 

pound limit per container. Commenters 

also recommended DHS only regulate 

pure chemicals, explaining that a 

chemical that is part of a commercial 

product, formulation, or dilute solution 

should not be a COI. 

Response: Facilities that possess any 

of the chemicals listed in Appendix A 

at or above the STQ for any applicable 

security issue must complete and 

submit a Top-Screen. See § 27.200(b)(2) 

and § 27.210(a)(1)(i). Accordingly, the 

Department expects that all facilities, 

including colleges and universities, that 

possess such chemicals will complete 

and submit a Top-Screen. Because the 

need to do a Top-Screen is driven by the 

possession of chemicals, not the 

location of the chemicals, DHS can not 

simply exempt chemicals located at 

colleges and universities. In addition, 

the Department notes that existing 

federal regulatory schemes (e.g., those of 

the Centers for Disease Control and 

Prevention (CDC), Drug Enforcement 

Agency (DEA), and CWC) do not exempt 

colleges, universities, and university 

medical centers from their chemicalrelated regulatory programs. 

Furthermore, given the apparent 

current state of security at academic 

institutions, DHS believes that 

exclusion of colleges and universities is 

not warranted. Based on the comments 

DHS received from colleges and 

universities, the Department 

understands that security varies 

dramatically across academic 

institutions. Representatives of the 

academic community acknowledged 

that they possess chemicals of interest. 

While some adhere to broad security 

strategies, others admitted having an 

incomplete or non-existent inventory of 

the contents and quantities of chemicals 

and no affordable or timely means of 

compiling an inventory. 

While the requirements of Appendix 

A will continue to apply to academic 

institutions, there are several revisions 

to Appendix A, many of which should 

allay the concerns of academic 

institutions. First, DHS is providing 

colleges and universities with the 

option to request an extension of time 

to complete and submit their TopScreens following the publication of a 

final Appendix A. The president, dean, 

provost, or other senior official at a 

college or university may request an 

extension from the Assistant Secretary 

for Infrastructure Protection, and DHS 

may grant that request for up to 60 

additional calendar days following the 

publication of final Appendix A. 

Second, as discussed throughout this 

final rule, the Department has removed 

various chemicals from the list. Of note 

to academic institutions, the 

Department has removed acetone. 

Similarly, the Department has adjusted 

STQs for chemicals. The Department 

has assigned numeric quantities to all of 

the previous ‘‘any amount’’ STQs. Of 

note to academic institutions, DHS has 

changed the STQ for triethanolamine (a 

theft/diversion-CW/CWP chemical) 

from ‘‘any amount’’ to 220 pounds. 

Third, the Department has added an 

exclusion for facilities that possess 

laboratory quantities of release-toxic, 

release-flammable, and releaseexplosive chemicals. See § 27.203(b)(2). 

This tracks the exemption that EPA uses 

in its RMP program. Note, however, that 

while a facility need not count 

laboratory quantities of release 

chemicals of interest toward the 

facility’s STQ, a facility must still count 

laboratory quantities of theft/diversion 

and sabotage/contamination chemicals 

of interest toward the facility’s STQ. 

Fourth, all facilities, including 

colleges and universities, have 

flexibility in defining the boundaries of 

their facility and identifying the party at 

their institution that is responsible for 

compliance.60 The requirements of part 

27 are facility-specific. As such, an 

institution of higher learning can, if 

appropriate, submit a Top-Screen on a 

building-to-building basis or a campuswide basis. This is comparable to the 

situation for owners or operators of a 

multi-unit enterprise. See 72 FR 17688, 

17697. 

Fifth, even if academic institutions get 

screened into this regulatory program 

(i.e., they complete the Top-Screen, 

DHS classifies them as a high-risk 

facility, and they have to develop and 

implement SVAs and SSPs), the 

academic institutions may well have 

security measures in place that will help 

them meet the applicable risk-based 

performance standards. See § 27.230 

(indicating that a facility must select, 

develop in their SSP, and implement 

appropriately risk-based measures 

designed to satisfy the risk-based 

performance standards listed in 

§ 27.230(a)(1)–(19)). In that case, the 

additional burden of complying with 

this regulation would consist of either 

creating a CSAT SSP or referencing 

measures in an existing security plan by 

way of an Alternate Security Program 

(ASP). See § 27.235 ‘‘Alternative 

Security Program.’’ Colleges and 

universities may benefit from working 

together to develop an ASP template 

specifically tailored to the research 

environment in an academic setting. 

2. Medical Research Organizations and 

Similar Laboratories 

Comment: The assertions in the 

comments from medical research 

institutes and other similar laboratories 

largely resembled those of the colleges 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65413 

61See footnote 64. 

and universities. These comments came 

not only from medical research 

institutes but from non-production, nondiagnostic research laboratories; 

ancillary facilities at non-profit, noncommercial research organizations; 

operators of pharmaceutical 

laboratories; and companies that 

conduct research as a part of their 

business (e.g., industrial or food 

processing research and development 

laboratories, environmental testing labs, 

and testing or monitoring facilities). 

They argued that their institutions are 

not ‘‘high risk chemical facilities.’’ They 

also claimed that they use COI in the 

same way that colleges and universities 

do—that is, they have large numbers of 

chemicals and reagents in very small 

quantities, in small containers, and at 

multiple locations within a facility. In 

addition, they asserted that they did not 

comment on the Advance Notice of 

Rulemaking, because they did not 

believe that rule would cover them. 

Pharmaceutical research facilities 

asserted these security efforts would be 

very burdensome and would divert a 

large amount of time and resources 

away from their critical, life-saving 

research. 

Several of those commenters 

expressed concern about the ‘‘any 

amount’’ threshold. Those commenters 

included individuals and entities that 

conduct field calibration for pipelines 

and operations, operate compliance 

labs, sterilize instruments, and conduct 

blood or tissue test. A few commenters 

pointed out that the ‘‘any amount’’

threshold would mean that entities like 

clinics and dental offices would have to 

submit Top-Screens. 

Commenters requested that DHS 

exempt their laboratories or operations 

from the rule. In the alternative, the 

commenters requested other forms of 

relief, such as replacing the ‘‘any 

amount’’ STQ for common laboratory 

chemicals with a STQ of 10 pounds per 

storage location or 100 pounds per 

building; establishing a per container 

limit of 1 pound; setting higher levels 

for ubiquitous substances (such as 

acetone and triethanolamine); or 

defining a facility to include a storage 

location. 

Response: DHS directs readers to the 

response provided for colleges and 

universities, as that response is directly 

applicable to these comments by 

medical research institutes and other 

similar laboratories. The requirement to 

complete the Top-Screen is driven by 

the possession of certain chemicals in 

specified quantities, and DHS does not 

agree that the nature of a facility’s 

operation alone warrants an exclusion. 

As such, the Department expects that 

medical research institutes and like 

institutions that possess any of the 

chemicals listed in Appendix A at or 

above the STQ for any applicable 

security issue will complete and submit 

a Top-Screen. See § 27.200(b)(2) and 

§ 27.210(a)(1)(i). DHS also directs 

readers to the discussion of revisions to 

Appendix A, which is provided in the 

response to colleges and universities. 

Those revisions should address many of 

the concerns of medical research 

institutes and like institutions. 

3. Farms and the Agricultural Industry; 

Fumigation Industry 

Comment: Several commenters, 

including farmers and other agricultural 

users of chemicals, asserted that they 

should be exempt from this rule, 

explaining that they extensively use 

chemicals like acrolein, ammonium 

nitrate (nitrogen concentration of 28%–

34%), and sodium chlorate. Because 

farmers use these chemicals on farms for 

agricultural purposes, and often do so in 

remote and rural locations, commenters 

did not think that these chemicals 

raised any security concerns. Other 

commenters expressed concern that if 

DHS made exceptions for certain 

facilities (especially in the agricultural 

industry), loopholes would emerge and 

companies would exploit those 

loopholes in order to gain a financial 

edge. 

Several commenters asserted that 

DHS should exempt urea fertilizer, 

because it is widely-used. Another 

commenter requested that DHS work 

with agricultural producer groups in 

order to find appropriate ways to 

regulate commonly-used nitrogen 

fertilizers such as ammonia solutions, 

anhydrous ammonia, and urea. 

Commenters believed that the potential 

hazard or risk posed by these chemicals, 

particularly in a rural farm setting, is 

minimal and should not trigger the 

regulation of farms as ‘‘chemical 

facilities.’’ Yet other commenters agreed 

that DHS should exempt urea but for a 

different reason; they asserted that 

chemicals that are already highly 

regulated may not need the additional 

requirements of this rule, but the fact 

that a chemical like urea is not highly 

regulated supports the argument that the 

chemical by itself is not harmful. 

Commenters from the fumigation 

industry pointed out that DHS security 

regulation of chemicals (such as methyl 

bromide, chloropicrin, and sulfuryl 

fluoride) is unnecessary, since these 

substances are commonly used in the 

fumigation industry and already 

regulated under other federal regulatory 

schemes. In addition, commenters 

pointed out that there are licensing and 

control standards for these substances. 

Moreover, these chemicals are usually 

kept in small amounts in small 

containers under secure conditions by 

people who are licensed. 

Response: Pursuant to the authorizing 

legislation for part 27, the Department 

has exempted select facilities from this 

regulation. See Section 550(a) and 

§ 27.110(b). Commenters to both the 

Advance Notice and to Appendix A 

requested that DHS exempt additional 

facilities and industries, such as 

universities, medical research institutes, 

and farms. Consistent with its position 

in the IFR, DHS has not provided any 

additional regulatory text exemptions. 

See 67 FR 17688, 17699. 

There are risks with facilities 

possessing certain amounts of certain 

chemicals, and the Department is 

seeking to address these risks under its 

new authority in Section 550. This 

extends to all facilities that present high 

levels of security risk and possess 

chemicals that may be of interest to 

terrorists. Moreover, these risks are 

associated with the characteristics and 

quantity of the chemical, rather than the 

business or activity associated with the 

industry or facility. As such, it would 

not be appropriate for DHS to exempt, 

by regulation, entire types of activities 

or industries. 

Nevertheless, the Department realizes 

the commercial importance of Appendix 

A chemicals of interest and does not 

seek to undermine their legitimate 

production, use, and/or sale. To that 

end, the Department has made 

numerous changes to the appendix and 

discusses them in section II of this 

preamble. In short, DHS has clearly 

identified the security issue(s) 

associated with each chemical, removed 

the ‘‘any amount’’ STQs,61 removed 

chemicals (including acetone and urea), 

and developed a specialized approach 

for certain chemicals (including 

propane and AN). In addition, as 

discussed in the relevant sections above, 

DHS notes that it removed methyl 

bromide and chloropicrin from the list 

of chemicals in Appendix A. 

4. Overlap With Other Federal Entities 

Comment: Many commenters 

expressed concern that the new rule 

creates regulatory redundancy. They 

indicated that numerous federal 

agencies, including ATF, DOT, DOJ, 

EPA, OSHA, TSA, and USCG, already 

have regulations on the identified 

chemicals and that some of these 

agencies heavily regulate companies 

that deal with chemicals. Commenters 

explained that companies that store and 


rwilkins on PROD1PC63 with RULES_2
65414 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

transport these materials must conduct 

a comprehensive risk and vulnerability 

assessment based on storage prior to 

transport, personnel security, 

unauthorized access, and en route 

security. Commenters indicated that 

they would like to see consistency and 

cooperation between agencies. 

Commenters argued that DHS should 

remove chemicals that are already 

regulated by other federal agencies and 

pointed to several examples. 

Commenters asserted that the EPA, 

through the Federal Insecticide, 

Fungicide, and Rodenticide Act 

(FIFRA), 7 U.S.C. 136 et seq., and DOT 

regulates chemicals such as methyl 

bromide, chloropicrin, and sulfuryl 

fluoride. Other commenters asserted 

that the EPA, through the Emergency 

Planning and Community Right to 

Know Act, 42 U.S.C.11011 et seq., and 

the Occupational Safety and Health 

Administration regulate hydrogen 

peroxide (concentration of at least 30%). 

And yet other commenters pointed out 

that DOT regulates propane; DOT, along 

with EPA, regulates phosphine; and the 

DOC regulates triethanolamine under its 

Chemical Weapons Convention (CWC) 

regulations. 

Other commenters recommended that 

DHS exempt facilities that are regulated 

by other federal agencies. Specifically, 

commenters requested exemptions for 

facilities that have already complied 

with EPA’s Risk Management Program; 

natural gas pipelines and utility 

facilities that DOT’s Pipeline and 

Hazardous Materials Administration 

(PHMSA) regulates; and facilities that 

have been screened out of the Maritime 

Transportation Security Act (MTSA) 

(e.g., offshore oil and gas facilities). 

Commenters asserted that the EPA RMP 

regulations, PHMSA pipeline and U.S. 

Coast Guard MTSA regulations assess 

facilities with similar criteria (i.e., 

potential risk to the public, the 

environment, and economic health) and 

therefore thought that DHS efforts 

would be redundant and a waste of 

resources. Many small businesses 

commented that it would be difficult for 

them to keep up with part 27 and other 

federal regulations, especially since TQs 

and STQs vary between agencies. 

Several commenters suggested that 

DHS should set its STQs consistent with 

those of other federal agencies or 

regulatory programs (e.g., OSHA, EPA, 

DOC). Commenters most frequently 

recommended that DHS use EPA RMP 

TQs and either substitute them 

categorically for all STQs or at least for 

the proposed ‘‘any amount’’ STQs. One 

commenter recommended that a 

chemical of interest that is also an 

extremely hazardous substance under 

EPA’s Emergency Planning and 

Notification regulations at 40 CFR part 

355 should have an STQ no lower than 

its threshold planning quantity. 

With respect to explosives, 

commenters pointed out that the 

explosives industry is already heavily 

regulated by DOT, the Department of 

Justice (DOJ), and ATF and is subject to 

risk assessments. Commenters believe 

the DHS efforts would be redundant and 

excessive for a low-threat industry. By 

contrast, another commenter suggested 

that DHS expand the list of COI to 

incorporate those substances regulated 

by the ATF. The commenter stated that 

explosives present security risks beyond 

manufacturing (such as transportation, 

end storage, and potential theft) that 

need to be taken into account. 

Response: The Department recognizes 

that multiple federal entities regulate 

matters related to chemicals. In the 

Advance Notice to part 27, the 

Department discussed pre-existing 

chemical security and safety programs, 

such as those of the USCG, EPA, OSHA, 

and ATF. The Department notes, 

however, that each entity regulates 

chemicals for distinct reasons. Congress 

has given each entity a different 

mandate, and so each entity must satisfy 

its mandate. For example, OSHA is 

concerned with, inter alia, the 

protection of employees that use certain 

chemicals in the workplace. DOT is 

concerned with the safe and secure 

transportation of hazardous materials. 

EPA, through its RMP program, is 

concerned with preventing an 

accidental release of certain chemicals. 

DHS, however, is concerned with the 

security implications of facilities 

possessing these chemicals. Congress 

has given DHS explicit authority to 

regulate security at chemical facilities. 

To the extent there is overlap in the 

jurisdiction and efforts of multiple 

federal entities, DHS will work with 

those entities to coordinate efforts. 

Within DHS, the Department has 

already undertaken steps among 

headquarters and component offices 

(e.g., USCG, DHS Office of Infrastructure 

Protection/Chemical Security 

Compliance Division (CSCD), and TSA) 

to coordinate the application and 

enforcement of regulatory programs 

related to chemical security. There are 

liaison positions within CSCD for 

individuals from other DHS offices and 

components. In addition, DHS has 

developed informal and formal working 

groups to coordinate Departmental 

regulatory authorities in the chemical 

sector. With respect to federal entities 

outside of DHS, the Department will 

consider the necessity of various 

formalized arrangements, such as an 

inter-agency coordination process to 

resolve jurisdictional questions or 

conflicts, as this regulatory program 

develops. 

Despite the differing mandates 

between federal agencies that regulate 

chemicals, the Department has looked to 

the regulatory programs of these other 

federal agencies for guidance and 

direction. The Department found great 

value in considering a number of these 

regulatory programs, including those of 

the ATF, DOC, Department of Energy 

(DOE), DOT, EPA, and OSHA. In fact, 

the Department references, uses, and 

cites many of these regulations in this 

rule. 

With respect to offshore oil and gas 

facilities, as discussed in the IFR at 72 

FR 17699, the Department notes that the 

statute (Section 550) and the regulation 

(§ 27.110(b)) exempt facilities regulated 

pursuant to MTSA. 

5. Concerns About Being Over-Inclusive 

Section 27.105 defines a chemical 

facility as an establishment that 

‘‘possesses or plans to possess, at any 

relevant point in time, a quantity of a 

chemical substance determined by the 

Secretary to be potentially dangerous or 

that meets other risk-related criteria 

identified by the Department.’’

Comment: Numerous commenters 

stated that this definition of a ‘‘chemical 

facility,’’ along with the chemicals and 

STQs listed in proposed Appendix A, 

will capture far more facilities than 

Congress originally intended. 

Commenters were concerned that these 

facilities, which they did not consider 

high risk facilities, would need to 

complete and submit a Top-Screen 

because of the proposed COI and STQs. 

For example, 105 of the 331 chemicals 

on the proposed list have a STQ with no 

‘‘de minimis’’ quantity (i.e., an STQ of 

‘‘any amount.’’). Among those listed are 

many common chemicals (e.g., carbon 

monoxide) that can be found in many 

low risk facilities. As a result of the 

proposed list of COI and STQs, the rule 

would end up covering many entities 

that would not expect to be covered, 

such as rural schools, summer camps, 

universities, research facilities, farms, 

agricultural retailers, grocery stores, 

fumigators, and residential homes. 

Commenters asserted that if DHS did 

not alter its definition of chemical 

facility, the chemicals in the COI list, 

and the STQs on the COI list, DHS 

would receive a drastically larger 

number of Top-Screens (than the 40,000 

Top-Screens, which DHS estimated in 

regulatory evaluation for the IFR). 

Commenters argued that the number of 

Top-Screens would be as high as 

hundreds of thousands, perhaps even 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65415 

62For a discussion on the definition of ‘‘chemical 

facility,’’ see footnote 61. 

millions. Commenters believe this will 

bog down the review process, use too 

many resources on low risk facilities, 

and become counter-productive in the 

attempt to secure the homeland. 

Commenters were also concerned that 

if entities which did not expect to be 

included (e.g., farmers, small business 

owners, or home owners) are, in fact, 

included in Appendix A and expected 

to complete the Top-Screen, those 

entities will not know of the 

requirement and not comply, thereby 

incurring possible penalties and other 

consequences (e.g., filing fees, costs 

associated with hiring DHS compliance 

consultants). 

Response: In part 27, the Department 

classifies chemical facilities as high risk 

based on the presence of chemicals that 

may be an attractive target for terrorists. 

DHS has identified security issue(s) for 

each chemical, and that security issue is 

associated with the characteristics and 

quantity of the chemical. If a facility 

possesses that chemical at the specified 

amount, the Department expects that the 

facility will complete a Top-Screen. 

While the Department has not 

narrowed its definition of ‘‘chemical 

facility,’’ 62 the Department has refined 

the list of chemicals, as well as the 

parameters for including chemicals. See 

section II of the preamble. Among the 

changes, DHS established many new 

STQs, eliminated the ‘‘any amount’’

STQ, and has included new calculation 

provisions. The Department expects that 

these changes will effectively exclude 

most farmers, home owners, and small 

businesses from the Top-Screen process. 

The Department believes that its 

estimate regarding entities that will 

complete the Top-Screen continues to 

be accurate. 

In addition, the Department is 

providing some clarification on the 

coverage of truck terminals. The 

Department is taking the same approach 

toward truck terminals that it has taken 

toward railroad facilities. See 72 FR 

17698–17699. DHS presently does not 

plan to screen truck terminals for 

inclusion in the Section 550 regulatory 

program, and therefore DHS will not 

request that owners and operators of 

truck terminals complete the TopScreen risk assessment methodology. 

DHS and its components, including 

TSA, have concurrent and overlapping 

jurisdiction with respect to certain 

aspects of chemical security. DHS is 

working, and will continue to work, to 

address this overlapping jurisdiction 

and to determine whether it would want 

to include trucking terminals in its 

chemical security program. As with 

railroad facilities, DHS may, in the 

future re-evaluate the coverage of 

trucking terminals. DHS would do so by 

issuing a rulemaking considering the 

matter. 

Finally, in response to commenters 

who indicate that there may be a lack 

of awareness about these requirements, 

the Department notes that publication of 

a document in the Federal Register is 

official notice of a document’s existence 

and its contents to those parties that 

may be subject to it or affected by it. In 

this case, the IFR and this final rule puts 

all affected parties on notice that they 

must comply with the terms of part 27. 

Despite this fact, the Department has 

undertaken outreach efforts since the 

publication of this IFR and will 

continue to do so. 

C. Screening Threshold Quantities 

1. In General 

Comment: There were many 

comments about the STQs assigned to 

the chemicals in the list. The majority 

of commenters recommended that DHS 

increase the STQs, arguing that the 

proposed STQs were too low. 

Commenters asserted that DHS should 

significantly increase the STQs to 

relieve the burden on very low risk 

facilities. Other commenters argued that 

low STQs for common, widely-used 

chemicals will impose a huge burden on 

industry overall as well as a burden on 

small entities that make small amounts 

of several, different chemicals. By 

contrast, only one individual 

commenter recommended a downward 

STQ adjustment (for chlorine). 

Response: The Department has 

revised its approach to Appendix A, 

including substantial changes to the 

STQs. The changes are discussed in 

depth above in section II(C). 

Comment: Some individuals noted 

that a particular site or facility might 

have several locations where there is a 

small quantity of a COI, but in the 

aggregate the site could have more than 

an STQ. The commenters asked whether 

the threshold amount should be applied 

to the entire site, even if the different 

locations within the site are widely 

separated from one another. Another 

commenter thought that DHS should 

clarify its definition of STQ to include 

‘‘all sources of a given chemical from a 

given facility, not just single sources 

with quantities that exceed STQs.’’

Response: As DHS discussed in the 

comment response about colleges and 

universities, facilities have flexibility to 

define their boundaries and identify the 

party (or parties) at their institution that 

is responsible for compliance. The 

requirements of part 27 are facilityspecific. 

Comment: A commenter suggested 

that, because of varying uses or toxicity, 

DHS list STQs in smaller units of 

measures (i.e., grams) in addition to 

pounds. 

Response: Where appropriate, the 

Department has listed STQs in units 

other than pounds. For example, the 

Department lists the cumulative STQ for 

specified theft/diversion-CW/CWP 

chemicals at 100 grams. 

2. Modifying the ‘‘Any Amount’’ STQ 

Comment: Several commenters 

expressed an opinion on the ‘‘any 

amount’’ STQ in the proposed 

appendix. Many commenters urged DHS 

to replace the ‘‘any amount’’ STQs with 

numeric levels. One commenter 

encouraged DHS to set the thresholds at 

amounts that reflect what experts 

believe is sufficient to produce an offsite consequence to the public as a 

result of attack, theft, or conversion into 

a weapon of mass destruction. 

Yet other commenters asked DHS to 

clarify the meaning of ‘‘any amount.’’

For example, one individual asked how 

a facility would know when it came into 

possession of ‘‘any amount.’’ Other 

commenters pointed out that certain 

COI are ingredients in many 

nonhazardous products, such as foods 

and cosmetics, and therefore thought 

that DHS would not have intended for 

those products to be subject to the rule. 

For example, an 8-ounce glass of whole 

milk contains approximately 230 

milligrams of phosphorus, and yet DHS 

listed phosphorus as a COI with an STQ 

of ‘‘any amount.’’

Other commenters noted that if DHS 

retained the ‘‘any amount’’ STQ, every 

home, grocery store, and school with 

only a detectable amount would have to 

comply with the regulation. These 

commenters did not think that such a 

tiny amount of chemicals would make 

a viable terrorist target. Other 

commenters suggested that the ‘‘any 

amount’’ STQ would create a larger 

burden for both DHS and facilities that 

would otherwise not be affected by this 

rule. This, in turn, would divert limited 

resources away from those facilities that 

can actually be considered terrorist 

targets. A food industry commenter 

believed that overly expansive coverage 

would cause facilities in the industry to 

focus on chemical security compliance 

rather than potential threats to the food 

supply. 

Response: The Department has 

removed the ‘‘any amount STQs’’ from 

the list, and for the vast majority of 

chemicals, DHS assigned a numeric 


rwilkins on PROD1PC63 with RULES_2
65416 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

63 for sabotage/contamination chemicals, a facility 

meets the STQ if it possesses A Placarded 

Amount—i.e., if it ships the listed chemical of 

interest and is required to placard the shipment of 

that chemical pursuant to DOT regulations at 49 

CFR part 172. DOT regulations identify the amounts 

(such as ‘‘any quantity’’ or ‘‘1,001 lbs or more) for 

which placarding is required.’’ See 49 CFR 172.504. 

64Through its Hazardous Material Table in 49 

CFR 172.101, DOT regulates the transportation of 

hazardous materials. For each material listed, DOT 

identifies a hazard class, provides the proper 

shipping name, and specifies the applicable 

requirements (e.g., labeling, packaging, etc). To 

denote hazardous materials without a specific 

shipping name, DOT uses the suffix ‘‘N.O.S.’’ and 

a generic shipping name. 

65The only exception is germanium tetrafluoride, 

which DHS discusses in section (II)(C)(4)(a) above. 

quantity to the STQ for each chemical.63

The revised STQs are geared toward the 

hazard and consequences associated 

with the chemical. 

3. Mixtures and Solutions 

Comment: Several individuals, 

entities, and organizations believed that 

the proposed appendix was unclear 

about the applicability of STQs to 

mixtures and solutions. Commenters 

argued that the concentration of a COI 

is the most important factor affecting 

potential harm. Commenters asserted 

that when a COI is listed in Appendix 

A without a percent concentration, then 

the STQ should apply to the weight of 

the pure substance, not to the weight of 

a mixture or solution. Alternatively, 

commenters suggested that DHS should 

establish minimum concentrations for 

all COI. Some commenters noted that 

the properties of a mixture might be 

significantly different from the 

properties of the listed COI that caused 

the mixture to be considered a health or 

security risk. One commenter suggested 

that DHS should exclude mixtures from 

the list, since most chemical mixtures 

do not share the same risk profile as 

their pure compound counterpart (e.g., 

acetone, cyanides, fertilizers, and gas 

mixtures). 

Response: The Department recognizes 

the importance of providing guidance 

on mixtures, and as discussed in section 

II, the Department added a new 

regulatory section that addresses 

mixtures. See § 27.204. The Department 

generally disagrees with commenters 

who assert that chemical mixtures are 

not a security concern. For example, 

toxic chemical mixtures are a security 

concern given their ability to vaporize 

from the mixture and potentially create 

a toxic cloud. Similarly, certain 

minimum concentrations of poisonous 

gases, particularly the highly toxic 

gasses, are potential weapons even in 

extremely low concentrations. 

D. Revisions to the COI List 

1. Technical Corrections 

Comment: A handful of commenters 

noted that DHS had duplicate entries for 

chemicals in proposed Appendix A. The 

Department listed each of the four 

following chemicals twice, with a 

different STQ (‘‘any amount’’ and 2000 

pounds) for each entry: (1) Phosphorus 

oxychloride, (2) phosphorus 

pentachloride, (3) phosphorus 

trichloride, and (4) thionyl chloride. 

In addition, the Department listed 

each of the following three chemicals 

twice by listing the chemical under two 

synonymous names: (1) Calcium 

dithionite and calcium hydrosulfite, (2) 

sodium dithionite and sodium 

hydrosulfite, and (3) zinc dithionite and 

zinc hydrosulfite. The Department not 

only listed each of the following two 

chemicals twice by listing the chemical 

under two synonymous names, but also 

listed a different STQ under each name: 

(1) Hydrogen cyanide (any amount) and 

hydrocyanic acid (1,875 pounds), and 

(2) carbonyl sulfide (any amount) and 

carbon oxysulfide (7,500 pounds). 

Commenters noted that Appendix A 

listed incorrect CAS numbers for the 

following six chemicals: 

hexyltrichlorosilane, sodium 

phosphide, hexotonal, chromium 

oxychloride, diethyl phosphate, and 

dimethyl phosphate. 

Response: The Department 

appreciates the input from commenters 

on chemical names and CAS numbers. 

The Department used that information 

to ensure the accuracy of Appendix A. 

To that end, the Department has 

removed and revised duplicate entries, 

corrected CAS numbers, and added a 

column to the appendix containing 

commonly-used synonyms for certain 

chemicals of interest. 

2. Formatting and Approach 

Comment: A few commenters 

recommended that DHS parallel the 

DOT hazard class approach in 

classifying and listing chemicals. The 

Institute of Makers of Explosives (IME) 

made this suggestion in the context of 

explosives. To illustrate their point, the 

IME provided examples of chemicals in 

the same hazard class as several COI 

included in the Department’s chemicalby-chemical approach. 

Response: As noted in the IFR, DHS’s 

primary approach in this appendix is 

through the association of individual 

chemicals with specific security issues. 

While DHS will not preclude the use of 

hazard classes for other purposes (e.g., 

in the risk-based performance standard 

guidelines), DHS is not using the DOT 

hazard class approach at this point in 

time. 

Comment: One commenter suggested 

that DHS add the following generic ‘‘Not 

Otherwise Specified’’ (N.O.S.) 

chemicals to the COI list: Poison Gas, 

N.O.S.; Flammable Gas, N.O.S.; 

Flammable Liquid, N.O.S.; Spontaneous 

Combustible Liquid, N.O.S.; Organic 

Peroxide, N.O.S.; Poison Inhalation 

Hazard, N.O.S. The commenter 

suggested that DHS assign large STQ 

values to these N.O.S. chemicals. 

Response: For the reasons discussed 

above in sections II(C)(2) and II(C)(4), 

the Department is not using the DOT 

approach of categorizing chemicals,64

and so DHS has not included N.O.S. 

chemicals on the COI list.65 Instead, 

DHS has included chemicals on the COI 

list if they are uniquely identifiable. The 

Department, of course, retains its 

discretion to expand the COI list to 

include these or other chemicals in the 

future, as necessary. 

Comment: A commenter requested 

that DHS list the chemicals in CAS 

numerical sequence in addition to 

listing them in alphabetical order. 

Response: At this time, the 

Department will not list chemicals in 

CAS numerical sequence. The 

Department has, however, re-formatted 

the final Appendix, making it more 

user-friendly. 

E. Other Comments 

1. Procedural Issues 

Comment: Many commenters were 

upset that DHS did not publish 

Appendix A in the Advance Notice. A 

large number of commenters wanted the 

comment period for Appendix A 

extended for an additional 30 to 60 

days. Many commenters thought that 30 

days was not a sufficient amount of time 

to fully digest and analyze the 

regulations. 

Response: Congress provided the 

Department with six months to 

promulgate interim final regulations on 

chemical security. See Section 550(a). 

The Department not only met that short 

deadline, but it published both an 

Advance Notice and IFR within that sixmonth period. While the Department 

did not include Appendix A in the 

Advance Notice, it nonetheless has 

provided the public with an opportunity 

to comment on the appendix. 

In the IFR, the Department provided 

the public with 30 days to comment on 

proposed Appendix A. The Department 

was unable to extend that time period, 

given that the Department is seeking to 

facilitate the expeditious 

implementation of this chemical 

security regulatory program. Until the 

Department finalizes Appendix A, the 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65417 

66For information on the conference, see http:// 

www.dhs.gov/xprevprot/programs/ 

gc_1176736485793.shtm 

Department cannot fully implement this 

program. 

Comment: A few commenters asked 

that DHS incorporate procedures for 

changing the chemicals and STQs in 

Appendix A. Commenters want to be 

able to request that DHS delist (or 

remove) a chemical from Appendix A. 

Other commenters asked that DHS 

provide a 90 day comment period when 

adding chemicals. 

Response: DHS plans to periodically 

update the list of chemicals in 

Appendix A and will do so through 

notice and comment. At this time, DHS 

is not including a petition process like 

that of EPA, where members of the 

public may petition the EPA to add or 

delete substances from the RMP list. See 

40 CFR 27.120. 

Comment: Commenters asked that the 

media be more involved in conveying 

information about the final rule, because 

they believe that there are many smaller 

businesses that are potentially affected 

and yet are not aware of these new 

standards. Commenters are concerned 

that individuals and businesses could 

face severe financial penalties or unfair 

prosecution if they lack a full 

understanding of the rule and fail to 

comply. 

Response: The Department recognizes 

the need for ongoing and expanded 

outreach on this regulatory program, 

and the Department has already 

initiated such outreach. For example, 

the Department began participating in 

conferences soon after the effective date 

of part 27 (e.g., the American Chemistry 

Council’s ChemSecure Security 

Conference and Expo from April 17–19, 

2007). The Department has also 

supported other events, such as the 

2007 Chemical Sector Security Summit 

on June 11–13, 2007, which was 

convened by the Chemical Sector 

Coordinating Council.66 In addition, the 

Department provides informative and 

up-to-date resources about part 27 on its 

Web site (http://www.dhs.gov/ 

chemicalsecurity). The Department is 

interested in collaborating with private 

and public stakeholders, as well as the 

media, in the interest of promoting a full 

understanding of, and effective 

compliance with, part 27. 

2. Compliance Issues 

Comment: Several commenters asked 

DHS for clarification on identifying the 

responsible party for submitting 

information through the Top-Screen. 

One commenter asked who, if anyone, 

is responsible to submit a Top-Screen, 

in each of the following three scenarios: 

(1) If an American company buys a COI 

from one country and ships it directly 

to another country without ever 

possessing it; (2) If an American 

company buys a COI from a foreign 

nation and temporarily stores it for 

resale to another USA or Canadian 

company; and, (3) If an American 

company buys a COI above the 

threshold limit from an overseas 

producer and sells it to another USA 

company without ever handling it in 

their facility. 

Response: Part 27 applies to facilities 

located in the U.S. All facilities located 

in the U.S., including both domestic and 

foreign companies, that possess 

chemicals at the applicable STQ must 

complete and submit a Top-Screen. The 

converse is that a facility which does 

not operate in the U.S. and never 

possesses chemicals in the U.S., even if 

it is a U.S. company, does not have to 

complete and submit a Top-Screen. 

An American company that purchases 

chemicals of interest from one foreign 

country and ships it to another foreign 

country, without ever possessing the 

chemical in the U.S. does not need to 

complete and submit a Top-Screen. Any 

company, whether domestic or foreign, 

that stores chemicals of interest in the 

U.S. in quantities that at any time meet 

or exceed the STQ must complete and 

submit a Top-Screen. The Department 

realizes there are numerous, 

complicated business arrangements. 

Where a facility is unsure about its 

responsibility for compliance, the 

facility should consult with the 

Department pursuant to § 27.120, and 

the Department can work with the 

facility to resolve those issues. 

Comment: Other commenters raised 

concerns about third party 

responsibility. Commenters wanted to 

know who was responsible for 

complying with part 27 if a company or 

individual relies upon a third party to 

store and secure an Appendix A 

chemical above the STQ. There was also 

confusion over third party contractors/ 

vendors who temporarily store COI onsite while completing a job. 

Commenters explained that the 

challenge is to determine who 

completes and submits, and how often, 

a Top-Screen for a temporary tank. 

Storage of COI may be temporary or 

transient in nature, which creates 

confusion about how to apply the 

definition of facility to COI. A few 

commenters asked if a landlord is 

responsible for ensuring compliance 

with DHS regulations if their tenant 

company leases a warehouse and stores 

a COI above its allotted threshold. 

Response: Whether a landlord or 

tenant is responsible for submitting a 

Top-Screen will depend on which party 

is responsible for security of the 

chemical. The party responsible for the 

security of the chemical is responsible 

for submitting the Top-Screen. This may 

vary depending on the operational and/ 

or contractual relationship between the 

parties. 

Comment: A few commenters 

suggested that, in determining whether 

a facility possesses the chemicals in 

Appendix A at the quantities that trigger 

a Top-Screen, DHS should not include 

quantities of a chemical of interest that 

a facility is using or processing on-site. 

In some cases, a process might create a 

chemical of interest but not result in the 

storage of that chemical of interest. For 

example, carbon monoxide produced 

during combustion is transitory, and 

sulfur dioxide and sulfur trioxide are 

created and consumed during flue gas 

conditioning. 

Response: A facility shall calculate 

the STQ for release-toxic chemicals, 

such as sulfur trioxide, based on a 

facility’s total inventory of the chemical. 

The Department has added clarity to 

this issue, by adding calculation 

provisions for each security issue. 

Section § 27.203(b)(1)(iii), in particular, 

provides that facilities shall include in 

their release STQ chemicals of interest 

that are present as process 

intermediates, by-products, or materials 

produced incidental to the production 

of a product. The Department notes that 

it no longer includes carbon monoxide 

on the list of chemicals in Appendix A. 

Comment: Commenters asked 

whether a facility, after not having a COI 

for an extended period of time, would 

have to re-submit a Top-Screen if the 

facility obtained a COI above the STQ. 

Response: Under § 27.210(a)(1)(i), a 

facility that possesses any of the 

chemicals listed in Appendix A at or 

above the corresponding STQs must 

complete and submit a Top-Screen 

within 60 calendar days of the effective 

date of this final rule. In addition, a 

facility that comes into possession of 

any of the chemicals in Appendix A at 

the listed STQs must complete and 

submit a Top-Screen within 60 calendar 

days of coming into possession of the 

chemicals (emphasis added). 

Comment: Commenters suggested that 

DHS establish a ‘‘holding-time’’

threshold for chemicals, with time 

frames including 30 days and 60 days. 

Some commenters suggested an 

exemption for facilities that possess 

chemicals only for short periods of time. 

Response: DHS has not established a 

‘‘holding-time’’ threshold for chemicals. 

If terrorists have a reason to know that 


rwilkins on PROD1PC63 with RULES_2
65418 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

67A facility has the option of designating a 

reviewer for its facility. A reviewer is an individual 

who can review, but not enter, edit, or submit, 

information in the CSAT system. A facility can add 

a reviewer any time after the CSAT User 

Registration process. 

68By directing the Secretary to issue ‘‘interim 

final regulations,’’ Congress authorized the 

Secretary to proceed without the traditional noticeand-comment required by the Administrative 

Procedure Act. See 71 FR 78276. 

an attractive chemical is present at a 

facility, the duration for which it is 

present is largely irrelevant. As a result, 

a facility must submit and complete a 

Top-Screen if it possesses chemicals of 

interest in a quantity that at any time 

meets the STQ. 

3. Miscellaneous 

Comment: One commenter was 

concerned that there was a lack of 

information describing the tier-based 

risk assessments. Another commenter 

indicated that they were unable to 

submit comprehensive comments, 

because DHS has not established criteria 

and performance standards for 

determining risk-based tiers. 

Response: Although these comments 

are outside the scope of the rulemaking, 

the Department provides a response, in 

the hopes of promoting a fuller 

understanding of part 27. The 

Department is preparing a 

comprehensive guidance document that 

provides detailed explanations for the 

requirements by tier. The Department 

will make this guidance document 

available to facilities that have a need to 

know the information. 

Comment: Commenters expressed 

concerns about the financial impact of 

these new regulations on the American 

economy. Some feel that the regulations 

would impose a larger financial burden 

on U.S.-based companies, giving foreign 

companies an advantage. One 

commenter, in particular, was 

concerned that there will be an undue 

economic burden on local businesses if 

DHS requires background checks for any 

level of facility. This, in turn, could lead 

to non-compliance. 

A few commenters requested that 

DHS establish and publish 

qualifications for reviewers 67 and that 

DHS require reviewers to register with 

CSAT. Other commenters noted that the 

EPA and other agencies release 

operating information to the public; 

they thought that DHS, however, 

should, for security reasons, maintain as 

classified the information that it collects 

because of part 27. Another commenter, 

after noting that registration is only 

internet-based, requested that paper 

registration be made available for areas 

that do not have public internet access. 

One commenter was concerned that 

the Chemical Security Regulatory Task 

Force, which consists of five trained 

individuals, would not be able to guide 

the thousands of facilities seeking 

guidance on these regulations. A few 

commenters were concerned about 

DHS’s ability to process information 

requests quickly enough so that 

requesting companies would not be 

denied or penalized as a result. 

A commenter recommended that DHS 

replace the open-ended questions in the 

Top-Screen (which asks for the value of 

products shipped from facilities) with a 

pull down menu listing ranges of 

values. The commenter thought that this 

would help incorporate the smaller sites 

that are exempt from the comparatively 

high thresholds for declaring and 

hosting inspections of chemical 

weapons and their precursors under the 

CWC. 

Response: These comments are 

outside the scope of this rulemaking, 

which addresses the list of chemicals in 

Appendix A. 

IV. Regulatory Analyses 

A. Executive Order 12866: Regulatory 

Planning and Review 

DHS prepared and placed in the 

docket a Regulatory Assessment 

addressing the economic impact of the 

IFR. See 72 FR 172688. That Regulatory 

Assessment is applicable to this final 

rule. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

mandates that an agency conduct an 

RFA analysis when an agency is 

required to publish a notice of proposed 

rulemaking. See 5 U.S.C. 603(a). 

Because the Department was not 

required to publish a notice of proposed 

rulemaking for part 27,68 the 

Department was not required to conduct 

a RFA analysis. Nevertheless, the 

Department did consider the impacts of 

part 27 on small entities, providing that 

analysis in the Regulatory Assessment 

for the IFR. See 72 FR 172688. That 

analysis is applicable to this final rule. 

List of Subjects 

Chemical security, Facilities, 

Incorporation by reference, Reporting 

and recordkeeping, Security measures. 

The Final Rule 

For the reasons set forth in the 

preamble, the Department of Homeland 

Security revises part 27 to Title 6, Code 

of Federal Regulations, to read as 

follows: 

Title 6—Department of Homeland 

Security 

Chapter 1—Department of Homeland 

Security, Office of the Secretary 

PART 27—CHEMICAL FACILITY ANTITERRORISM STANDARDS 

■ 1. The authority citation for part 27 

continues to read as follows: 

Authority: Pub. L. 109–295, sec. 550. 

■ 2. Add the following definitions, in 

alphabetical order, to § 27.105, to read 

as follows: 

§ 27.105 Definitions. 

* * * * * 

A Commercial Grade (ACG) shall refer 

to any quality or concentration of a 

chemical of interest offered for 

commercial sale that a facility uses, 

stores, manufactures, or ships. 

A Placarded Amount (APA) shall refer 

to the STQ for a sabotage and 

contamination chemical of interest, as 

calculated in accordance with 

§ 27.203(d). 

* * * * * 

Chemical of Interest shall refer to a 

chemical listed in Appendix A to part 

27. 

* * * * * 

CUM 100g shall refer to the 

cumulative STQ of 100 grams for 

designated theft/diversion-CW/CWP 

chemicals and which is located in 

Appendix A to part 27 as the entry for 

the STQ and Minimum Concentration of 

certain theft/diversion-CW/CWP 

chemicals. 

* * * * * 

Security Issue shall refer to the type 

of risks associated with a given 

chemical. For purposes of this part, 

there are four main security issues: 

(1) Release (including toxic, 

flammable, and explosive); 

(2)Theft and diversion (including 

chemical weapons and chemical 

weapons precursors, weapons of mass 

effect, and explosives and improvised 

explosive device precursors), 

(3) Sabotage and contamination, and 

(4) Critical to government mission and 

national economy. 

* * * * * 

■ 3. Amend § 27.200 by revising 

paragraph (b)(2) to read as follows: 

§ 27.200 Information regarding security 

risk for a chemical facility. 

* * * * * 

(b) * * * 

(2) A facility must complete and 

submit a Top-Screen in accordance with 

the schedule provided in § 27.210, the 

calculation provisions in § 27.203, and 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65419 

the minimum concentration provisions 

in § 27.204 if it possesses any of the 

chemicals listed in Appendix A to this 

part at or above the STQ for any 

applicable Security Issue. 

* * * * * 

■ 4. Add § 27.203 to read as follows: 

§ 27.203 Calculating the screening 

threshold quantity by security issue. 

(a) General. In calculating whether a 

facility possesses a chemical of interest 

that meets the STQ for any security 

issue, a facility need not include 

chemicals of interest: 

(1) Used as a structural component; 

(2) Used as products for routine 

janitorial maintenance; 

(3) Contained in food, drugs, 

cosmetics, or other personal items used 

by employees; 

(4) In process water or non-contact 

cooling water as drawn from 

environment or municipal sources; 

(5) In air either as compressed air or 

as part of combustion; 

(6) Contained in articles, as defined in 

40 CFR 68.3; 

(7) In solid waste (including 

hazardous waste) regulated under the 

Resource Conservation and Recovery 

Act, 42 U.S.C. 6901 et. seq., except for 

the waste described in 40 CFR 261.33; 

(8) in naturally occurring hydrocarbon 

mixtures prior to entry of the mixture 

into a natural gas processing plant or a 

petroleum refining process unit. 

Naturally occurring hydrocarbon 

mixtures include condensate, crude oil, 

field gas, and produced water as defined 

in 40 CFR 68.3. 

(b) Release Chemicals.—(1) ReleaseToxic, Release-Flammable, and ReleaseExplosive Chemicals. Except as 

provided in paragraphs (b)(2) and (b)(3), 

in calculating whether a facility 

possesses an amount that meets the STQ 

for release chemicals of interest, the 

facility shall only include release 

chemicals of interest: 

(i) In a vessel as defined in 40 CFR 

68.3, in a underground storage facility, 

or stored in a magazine as defined in 27 

CFR 555.11; 

(ii) In transportation containers used 

for storage not incident to 

transportation, including transportation 

containers connected to equipment at a 

facility for loading or unloading and 

transportation containers detached from 

the motive power that delivered the 

container to the facility; 

(iii) Present as process intermediates, 

by-products, or materials produced 

incidental to the production of a 

product if they exist at any given time; 

(iv) In natural gas or liquefied natural 

gas stored in peak shaving facilities; and 

(v) In gasoline, diesel, kerosene or jet 

fuel (including fuels that have 

flammability hazard ratings of 1, 2, 3, or 

4, as determined by using National Fire 

Protection Association (NFPA) 704: 

Standard System for the Identification 

of the Hazards of Materials for 

Emergency Response [2007 ed.], which 

is incorporated by reference at 

27.204(a)(2)) stored in aboveground tank 

farms, including tank farms that are part 

of pipeline systems; 

(2) Release-Toxic, Release-Flammable, 

and Release-Explosive Chemicals. 

Except as provided in paragraph 

(c)(2)(i), in calculating whether a facility 

possesses an amount that meets the STQ 

for release-toxic, release-flammable, and 

release-explosive chemicals, a facility 

need not include release-toxic, releaseflammable, or release-explosive 

chemicals of interest that a facility 

manufactures, processes or uses in a 

laboratory at the facility under the 

supervision of a technically qualified 

individual as defined in 40 CFR 720.3. 

(i) This exemption does not apply to 

specialty chemical production; 

manufacture, processing, or use of 

substances in pilot plant scale 

operations; or activities, including 

research and development, involving 

chemicals of interest conducted outside 

the laboratory. 

(ii) [Reserved] 

(3) Propane. In calculating whether a 

facility possesses an amount that meets 

the STQ for propane, a facility need not 

include propane in tanks of 10,000 

pounds or less. 

(c) Theft and Diversion Chemicals. In 

calculating whether a facility possesses 

an amount of a theft/diversion chemical 

of interest that meets the STQ, the 

facility shall only include theft/ 

diversion chemicals of interest in a 

transportation packaging, as defined in 

49 CFR 171.8. Where a theft/diversionChemical Weapons (CW) chemical is 

designated by ‘‘CUM 100g,’’ a facility 

shall total the quantity of all such 

designated chemicals in its possession 

to determine whether the facility 

possesses theft/diversion-CW chemicals 

that meet or exceed the STQ of 100 

grams. 

(d) Sabotage and Contamination 

Chemicals. A facility meets the STQ for 

a sabotage/contamination chemical of 

interest if it ships the chemical and is 

required to placard the shipment of that 

chemical pursuant to the provisions of 

subpart F of 49 CFR part 172. 

■ 5. Add § 27.204 to read as follows: 

§ 27.204 Minimum concentration by 

security issue. 

(a) Release Chemicals—(1) ReleaseToxic Chemicals. If a release-toxic 

chemical of interest is present in a 

mixture, and the concentration of the 

chemical is equal to or greater than one 

percent (1%) by weight, the facility 

shall count the amount of the chemical 

of interest in the mixture toward the 

STQ. If a release-toxic chemical of 

interest is present in a mixture, and the 

concentration of the chemical is less 

than one percent (1%) by weight of the 

mixture, the facility need not count the 

amount of that chemical in the mixture 

in determining whether the facility 

possesses the STQ. Except for oleum, if 

the concentration of the chemical of 

interest in the mixture is one percent 

(1%) or greater by weight, but the 

facility can demonstrate that the partial 

pressure of the regulated substance in 

the mixture (solution) under handling or 

storage conditions in any portion of the 

process is less than 10 millimeters of 

mercury (mm Hg), the amount of the 

substance in the mixture in that portion 

of a vessel need not be considered when 

determining the STQ. The facility shall 

document this partial pressure 

measurement or estimate. 

(2) Release-Flammable Chemicals. If a 

release-flammable chemical of interest 

is present in a mixture in a 

concentration equal to or greater than 

one percent (1%) by weight of the 

mixture, and the mixture has a National 

Fire Protection Association (NFPA) 

flammability hazard rating of 4, the 

facility shall count the entire amount of 

the mixture toward the STQ. Except as 

provided in § 27.203(b)(1)(v) for fuels 

that are stored in aboveground tank 

farms (including farms that are part of 

pipeline systems), if a release-flammable 

chemical of interest is present in a 

mixture in a concentration equal to or 

greater than one percent (1%) by weight 

of the mixture, and the mixture has a 

National Fire Protection Association 

(NFPA) flammability hazard rating of 1, 

2, or 3, the facility need not count the 

mixture toward the STQ. The 

flammability hazard ratings are defined 

in NFPA 704: Standard System for the 

Identification of the Hazards of 

Materials for Emergency Response [2007 

ed.]. The Director of the Federal Register 

approves the incorporation by reference 

of this standard in accordance with 5 

U.S.C. 552(a) and 1 CFR part 51. You 

may obtain a copy of the incorporated 

standard from the National Fire 

Protection Association at 1 

Batterymarch Park, Quincy, MA 02169–

7471 or http://www.nfpa.org. You may 

inspect a copy of the incorporated 

standard at the Department of 

Homeland Security, 1621 Kent Street, 

9th Floor, Rosslyn VA (please call 703–

235–0709) to make an appointment or at 


rwilkins on PROD1PC63 with RULES_2
65420 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 

the or at the National Archives and 

Records Administration (NARA). For 

information on the availability of 

material at NARA, call 202–741–6030, 

or go to http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. If a releaseflammable chemical of interest is 

present in a mixture, and the 

concentration of the chemical is less 

than one percent (1%) by weight, the 

facility need not count the mixture in 

determining whether the facility 

possesses the STQ. 

(3) Release-Explosive Chemicals. For 

each release-explosive chemical of 

interest, a facility shall count the total 

quantity of all commercial grades of the 

chemical of interest toward the STQ, 

unless a specific minimum 

concentration is assigned in the 

Minimum Concentration column of 

Appendix A to part 27, in which case 

the facility should count the total 

quantity of all commercial grades of the 

chemical at the specified minimum 

concentration. 

(b) Theft and Diversion Chemicals. (1) 

Theft/Diversion-Chemical Weapons 

(CW) and Chemical Weapons Precursors 

(CWP Chemicals: Where a theft/ 

diversion-CWC/CWP chemical of 

interest is not designated by ‘‘CUM 

100g’’ in Appendix A, and the chemical 

is present in a mixture at or above the 

minimum concentration amount listed 

in the Minimum Concentration column 

of Appendix A to part 27, the facility 

shall count the entire amount of the 

mixture toward the STQ. 

(2) Theft/Diversion-Weapon of Mass 

Effect (WME) Chemicals: If a theft/ 

diversion-WME chemical of interest is 

present in a mixture at or above the 

minimum concentration amount listed 

in the Minimum Concentration column 

of Appendix A to part 27, the facility 

shall count the entire amount of the 

mixture toward the STQ. 

(3) Theft/Diversion-Explosives/ 

Improvised Explosive Device Precursor 

(EXP/IEDP) Chemicals. For each theft/ 

diversion-EXP/IEDP chemical of 

interest, a facility shall count the total 

quantity of all commercial grades of the 

chemical toward the STQ, unless a 

specific minimum concentration is 

assigned in the Minimum Concentration 

column of Appendix A to part 27, in 

which case the facility should count the 

total quantity of all commercial grades 

of the chemical at the specified 

minimum concentration. 

(c) Sabotage and Contamination 

Chemicals. For each sabotage/ 

contamination chemical of interest, a 

facility shall count the total quantity of 

all commercial grades of the chemical 

toward the STQ. 

■ 6. Amend § 27.210 by revising 

paragraph (a)(1)(i) to read as follows: 

§ 27.210 Submissions Schedule. 

* * * * * 

(a)(1)(i) Unless otherwise notified, 

within 60 calendar days of November 

20, 2007 for facilities that possess any 

of the chemicals listed in Appendix A 

at or above the STQ for any applicable 

Security Issue, or within 60 calendar 

days for facilities that come into 

possession of any of the chemicals listed 

in Appendix A at or above the STQ for 

any applicable Security Issue; or 

* * * * * 

■ 7. Revise Appendix A to part 27 to 

read as follows: 

Appendix A to Part 27: DHS Chemicals 

of Interest 

BILLING CODE 4410–10–P 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65421 


rwilkins on PROD1PC63 with RULES_2ER20NO07.008</GPH>
65422 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 


rwilkins on PROD1PC63 with RULES_2ER20NO07.009</GPH>
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65423 


rwilkins on PROD1PC63 with RULES_2ER20NO07.010</GPH>
65424 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 


rwilkins on PROD1PC63 with RULES_2ER20NO07.011</GPH>
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65425 


rwilkins on PROD1PC63 with RULES_2ER20NO07.012</GPH>
65426 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 


rwilkins on PROD1PC63 with RULES_2ER20NO07.013</GPH>
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65427 


rwilkins on PROD1PC63 with RULES_2ER20NO07.014</GPH>
65428 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 


rwilkins on PROD1PC63 with RULES_2ER20NO07.015</GPH>
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65429 


rwilkins on PROD1PC63 with RULES_2ER20NO07.016</GPH>
65430 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 


rwilkins on PROD1PC63 with RULES_2ER20NO07.017</GPH>
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65431 


rwilkins on PROD1PC63 with RULES_2ER20NO07.018</GPH>
65432 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 


rwilkins on PROD1PC63 with RULES_2ER20NO07.019</GPH>
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65433 


rwilkins on PROD1PC63 with RULES_2ER20NO07.020</GPH>
65434 Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 


rwilkins on PROD1PC63 with RULES_2ER20NO07.021</GPH>
Federal Register / Vol. 72, No. 223 / Tuesday, November 20, 2007 / Rules and Regulations 65435 

Michael Chertoff, 

Secretary of Homeland Security, Department 

of Homeland Security. 

[FR Doc. 07–5585 Filed 11–19–07; 8:45 am] 

BILLING CODE 4410–10–C 


rwilkins on PROD1PC63 with RULES_2