This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

15051 

Vol. 73, No. 56 

Friday, March 21, 2008 

1 In this notice, DHS clarifies what is meant by 

the Chemical of Interest propane (or COI propane), 

as opposed to other products that contain some 

amount of the chemical propane. 

2 In the tentative list of chemicals in the IFR, DHS 

had suggested an STQ of 7,500 pounds for all 

release-flammable COI, including the COI propane. 

See 72 FR 17743 (April 9, 2007). 

3Under 6 CFR § 27.203(b)(3), in calculating 

whether a facility possesses an amount that meets 

the 60,000 pound STQ for the COI propane, a 

facility need not include propane in tanks of 10,000 

pounds or less. 

4The COI propane may also contain relatively 

small amounts of additives (such as odorants) or 

contaminants. 

5The model MSDS from NPGA can be found on 

the NPGA Web site at http://www.npga.org/files/ 

public/Tech_Bulletin_NPGA_210–96.pdf. 

6For example, if a combination of 90% propane 

and 10% butane were subject to the releaseContinued 

DEPARTMENT OF HOMELAND 

SECURITY 

6 CFR Part 27 

[DHS–2006–0073] 

RIN 1601–AA41 

Clarification to Chemical Facility AntiTerrorism Standards; Propane 

AGENCY: Department of Homeland 

Security. 

ACTION: Clarification. 

SUMMARY: This notice clarifies how 

certain provisions of the Chemical 

Facility Anti-Terrorism Standards 

(CFATS) apply to the Chemical of 

Interest (COI) propane, which the 

Department of Homeland Security (DHS 

or Department) understands to contain 

at least 87.5% of the chemical propane. 

Specifically, this notice clarifies how 

the Screening Threshold Quantity and 

certain counting rule provisions apply 

to the COI propane. 

DATES: Effective Dates: Effective March 

21, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Dennis Deziel, Infrastructure Security 

Compliance Division, Department of 

Homeland Security, 703–235–5263. 

SUPPLEMENTARY INFORMATION: Section 

550 of the Homeland Security 

Appropriations Act of 2007 provided 

the Department with authority to 

promulgate interim final regulations for 

the security of certain chemical facilities 

in the United States. See Pub. L. 109– 

295, sec. 550. On December 28, 2006, 

the Department issued an Advance 

Notice of Rulemaking seeking comment 

on the significant issues and regulatory 

text (see 71 FR 78276) for such 

rulemaking, and on April 9, 2007, the 

Department published an Interim Final 

Rule (IFR) establishing the Chemical 

Facility Anti-Terrorism Standards 

(CFATS), 6 CFR Part 27 (see 72 FR 

17688). 

The IFR, except for Appendix A to 

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

Appendix A to the IFR contained a 

tentative list of Chemicals of Interest 

(COIs) and corresponding Screening 

Threshold Quantities (STQs). DHS 

accepted comments on the tentative list 

of COIs and STQs. In an Appendix A 

Final Rule published on November 20, 

2007, the Department responded to the 

many comments received and provided 

a final list of COIs and STQs. See 72 FR 

65396. Pursuant to 6 CFR 27.210(a)(1)(i), 

any facility that possesses any of the 

COIs listed in Appendix A at or above 

any applicable STQ must complete and 

submit a Top-Screen questionnaire to 

DHS. See 6 CFR 27.200(b)(2). 

Among other revisions to the final 

Appendix A, DHS set a special STQ for 

the COI propane.1 DHS listed the COI 

propane as a release-flammable COI 

with an STQ of 60,000 pounds; this is 

in contrast to the 10,000 pound STQ 

that DHS used for most other releaseflammable COI.2 In addition, the 

Appendix A Final Rule included a 

special rule for calculating whether a 

facility meets the STQ for the COI 

propane.3 The reasons for the unique 

STQ provisions for the COI propane are 

detailed in the preamble to the 

Appendix A Final Rule. See 72 FR 

65406–65407, 65409–65410. 

The Appendix A Final Rule also 

included provisions on how facilities 

should treat mixtures of COI (known as 

the mixtures provisions). See 6 CFR 

27.204. Under certain conditions, 6 CFR 

27.204(a)(2) (the release-flammable 

mixtures rule) provides that if a releaseflammable COI is present in a mixture 

in a concentration equal to or greater 

than one percent by weight, the facility 

shall count the entire amount of the 

mixture toward the STQ for that COI. 

Since publication of the Appendix A 

Final Rule, the Department has received 

numerous inquiries about the STQ 

provisions for the COI propane and 

about the applicability of the releaseflammable mixture provisions to 

products that contain the COI propane 

and to other products that contain some 

propane. To respond to those inquiries 

and alleviate any confusion, the 

Department is publishing this notice to 

provide clarification on this matter. 

The Appendix A Final Rule was 

drafted with the understanding that the 

COI propane consists predominantly of 

the chemical propane, in combination 

with other flammable gases—such as 

butane, pentane, ethane, and/or 

propylene (which are also releaseflammable COI under Appendix A). 

That understanding was likewise in 

mind when the Department developed 

the special STQ (i.e., 60,000 pounds) 

and STQ counting rule for the COI 

propane (see 6 CFR 27.204(b)(3)). It was, 

and is, commonly understood, however, 

that not every product containing any 

amount of the chemical propane is 

considered ‘‘propane’’ for commercial or 

other purposes. 

As is well-known, the COI propane 

typically consists predominantly of the 

chemical propane in combination with 

other release-flammable COI, as noted 

above.4 Within the propane industry, it 

is very typical for the COI propane to 

contain at least 87.5 percent of the 

chemical propane. This is reflected in 

the Material Safety Data Sheets (MSDS) 

for Odorized Propane of many propane 

companies as well as in the model 

MSDS from the National Propane Gas 

Association (NPGA).5 This is consistent 

with DHS’s understanding of the COI 

propane. 

Since DHS intends the COI propane to 

refer to products containing at least 87.5 

percent of propane, as well as other 

release-flammable COI, it follows that 

the release-flammable mixtures rule 

does not apply to such products. In fact, 

it would not make sense to apply the 

release-flammable mixtures rule to the 

combination of chemicals that 

constitute the COI propane because that 

would largely negate the intended effect 

of the 60,000 pound STQ and the 

special STQ counting rule for the COI 

propane.6 By contrast, the releaseVerDate Aug<31>2005 20:55 Mar 20, 2008 Jkt 214001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\21MRR1.SGM 21MRR1

jlentini on PROD1PC65 with RULES
15052 Federal Register / Vol. 73, No. 56 / Friday, March 21, 2008 / Rules and Regulations 

flammable mixtures provision, as little as 10,000 

pounds of that product would meet the STQ for 

butane, and thus trigger the Top-Screen reporting 

requirement of CFATS. This effect would be 

inconsistent with the purpose of the special 10,000 

pound counting rule and the 60,000 pound STQ for 

the COI propane and with DHS’s express intent not 

to subject facilities to the Top-Screen requirement 

when the only COI that would otherwise trigger that 

requirement is less than 60,000 pounds of COI 

propane. See 72 FR 65406–65407, 65409–65410. 

7The statement in the Appendix A Final Rule 

preamble that the mixtures provisions for propane 

are the same as for all other release-flammables, 72 

FR 65407, should be read in this intended context. 

Since it would not be logical or reasonable to apply 

the release-flammable mixtures provision to the COI 

propane (products containing at least 87.5% 

propane), the preamble statement was intended to 

cover mixtures containing less than 87.5% propane. 

flammable mixtures rule does apply to 

products that are a combination of less 

than 87.5 percent propane and other 

release-flammable COI, since such 

mixtures are not themselves the COI 

propane.7

Robert Stephan, 

Assistant Secretary for Infrastructure 

Protection, Department of Homeland 

Security. 

[FR Doc. 08–1059 Filed 3–18–08; 12:04 pm] 

BILLING CODE 4910–15–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 51 

[Docket #AMS–2006–0136; FV–06–303] 

Potatoes; Grade Standards 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule revises the United 

States Standards for Grades of Potatoes. 

These standards are issued under the 

Agricultural Marketing Act of 1946. The 

rule provides en route or at destination 

tolerances for the U.S. No. 1 and U.S. 

No. 2 grades, revises current tolerances 

in all grades, deletes the U.S. Extra No. 

1 grade and ‘‘Unclassified’’ section, and 

defines damage and serious damage by 

the following defects which will be 

added to Table III of the External 

Defects section: Cuts, Clipped Ends, 

Elephant Hide, Flattened or Depressed 

Areas/Pressure Bruises, Grub Damage, 

Nematode (Root Knot), Rodent or Bird 

Damage, Russeting, Silver Scurf, Sunken 

Discolored Areas, and Surface Cracks. 

The following defects and scoring 

guidelines that are currently listed in 

Table III of the External Defects section 

are also revised to reflect current 

inspection instructions: Air Cracks, 

Bruises, External Discoloration, Flea 

Beetle Injury, Greening, Growth Cracks, 

Rhizoctonia, Pitted Scab, Russet Scab, 

Surface Scab, and Wireworm or Grass 

Damage. Also, changes to the current 

scoring guide for sprouts are being 

made. In the Internal Defects section, 

Internal Black Spot is revised by 

implementing a color chip to assist in 

the scoring of this defect. Also, Table IV 

in this section is redesignated as Table 

I. Additionally, a revised large size is 

added as well as the inclusion of Chef 

and Creamer sizes. Most of the changes 

were the result of the detailed work 

performed by the Joint U.S./Canadian 

Potato Council that was charged with 

harmonizing the U.S. and Canadian 

Potato Grade Standards. This rule 

updates and revises the standards to 

more accurately reflect today’s 

marketing practices. 

DATES: Effective April 21, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Vincent J. Fusaro, Standardization 

Section, Fresh Products Branch, (202) 

720–2185. The United States Standards 

for Grades of Potatoes are available 

through the Fresh Products Branch Web 

site at: http://www.ams.usda.gov/ 

standards/stanfrfv.htm. 

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 and 12988 

The Office of Management and Budget 

has waived the review process required 

by Executive Order 12866 for this 

action. This rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This action is not 

intended to have retroactive effect. This 

rule will not preempt any State or local 

laws, regulations, or policies, unless 

they present an irreconcilable conflict 

with this rule. There are no 

administrative procedures which must 

be exhausted prior to any judicial 

challenge to the provisions of the rule. 

Regulatory Flexibility Act and 

Paperwork Reduction Act 

The Joint U.S./Canadian 

Harmonization Council (Council) which 

was established by the United States 

Secretary of Agriculture and the 

Canadian Minister of Agriculture, is 

charged with harmonizing the U.S. and 

Canadian grade standards. The United 

States Standards for Grades of Potatoes 

was last revised in 1991. The Council, 

which consists of representatives from 

the industry and government, meets 

annually to discuss issues concerning 

cross border marketing and trade of 

potatoes. AMS and the Canadian Food 

Inspection Agency (CFIA) have been 

working with the Council for the past 14 

years in the harmonizing of the 

standards. To complete the 

harmonization process, both the 

Canadian and U.S. grade standards, 

require revisions. The revision will 

benefit all aspects of the potato industry 

and make the standards current with 

today’s marketing trends and practices. 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act (5 

U.S.C. 601–612) (RFA), AMS has 

considered the economic impact of this 

action on small entities. The purpose of 

the RFA is to fit regulatory actions to the 

scale of businesses subject to such 

actions in order that small businesses 

will not be unduly or disproportionately 

burdened. Accordingly, AMS has 

prepared this final regulatory flexibility 

analysis. Interested parties are invited to 

submit information on the regulatory 

and informational impacts of this action 

on small businesses. 

This rule revises the U.S. Standards 

for Grades of Potatoes that were issued 

under the Agricultural Marketing Act of 

1946 (7 U.S.C. 1621–1627) (Act). 

Standards issued under the Act are 

voluntary. 

Small agricultural service firms, 

which include handlers and importers, 

have been defined by the Small 

Business Administration (SBA) (13 CFR 

121.201) as those having annual receipts 

of less than $6,500,000, and small 

agricultural producers are defined as 

those having annual receipts of less than 

$750,000. Using annual data from the 

National Agricultural Statistics Service 

(NASS), the average potato crop value 

for 2002–2004 is $2.538 billion. 

Dividing that figure by 9,408 farms 

yields an average potato crop value per 

farm of just under $270,000. Since this 

is well under the SBA threshold of 

annual receipts of $750,000, it can be 

concluded that the majority of these 

producers may be classified as small 

entities. Additionally, there are 

approximately 180 handlers of potatoes 

which are classified as small entities, 

that may be affected by this rule. 

Additional evidence comes from 

examining the Agricultural Census 

acreage breakdown more closely. Out of 

a total of 9,408 potato farms in 2002, 60 

percent were under 5 acres and 76 

percent were under 100 acres. An 

estimate of the number of acres that it 

would take to produce a crop valued at 

$750,000 can be made by dividing the 

2002–04 average crop value of $2.538 

billion by three-year average bearing 

acres (1.227 million), yielding an 

average potato revenue per acre estimate 

of $2,068. Dividing $750,000 by $2,068 

shows that farms with at least 363 acres 

that received at least the average price 

in 2002–04 would have produced crops 

valued at $750,000 or more, and would 

therefore be considered large potato 


jlentini on PROD1PC65 with RULES