PART 27—CHEMICAL FACILITY ANTI-TERRORISM STANDARDS Authority: 6 U.S.C. 624; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599; Pub. L. 113-254, 128 Stat. 2898, as amended by Pub. L. 116-150, 134 Stat. 679. Source: 72 FR 17729, Apr. 9, 2007, unless otherwise noted. Subpart A—General § 27.100 Purpose. The purpose of this part is to enhance the security of our Nation by furthering the mission of the Department as provided in 6 U.S.C. 111(b)(1) and by lowering the risk posed by certain chemical facilities. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41890, Aug. 4, 2021] § 27.105 Definitions. As used in this part: A Commercial Grade (ACG) A Placarded Amount (APA) Alternative Security Program or ASP Associate Director for Chemical Security Chemical Facility or facility Chemical of Interest Chemical Security Assessment Tool or CSAT Chemical-terrorism Vulnerability Information (CVI) Coordinating Official Covered Facility or Covered Chemical Facility CUM 100g Department Director Executive Assistant Director Office of the Chief Counsel Operator Owner Present high levels of security risk and high risk Risk profiles Screening Threshold Quantity or STQ Secretary or Secretary of Homeland Security et seq. Security Issue (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. Terrorist attack or terrorist incident Tier Top-Screen [72 FR 17729, Apr. 9, 2007, as amended at 72 FR 65418, Nov. 20, 2007; 86 FR 41890, Aug. 4, 2021] § 27.110 Applicability. (a) This part applies to chemical facilities and to covered facilities as set out herein; and (b) This part does not apply to a facility that is excluded as set forth in 6 U.S.C. 621(4): (1) A facility regulated under the Maritime Transportation Security Act of 2002 (Pub. L. 107-295; 116 Stat. 2064); (2) A public water system, as that term is defined in 42 U.S.C. 300f; (3) A Treatment Works, as that term is defined in 33 U.S.C. 1292; (4) A facility owned or operated by the Department of Defense or the Department of Energy; or (5) A facility subject to regulation by the Nuclear Regulatory Commission, or by a State that has entered into an agreement with the Nuclear Regulatory Commission under 42 U.S.C. 2021(b) to protect against unauthorized access of any material, activity, or structure licensed by the Nuclear Regulatory Commission. [86 FR 41890, Aug. 4, 2021] § 27.115 Implementation. The Executive Assistant Director may implement this part in a phased manner, selecting certain chemical facilities for expedited initial processes under these regulations and identifying other chemical facilities or types or classes of chemical facilities for other phases of program implementation. The Executive Assistant Director has flexibility to designate particular chemical facilities for specific phases of program implementation based on potential risk or any other factor consistent with this part. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41891, Aug. 4, 2021] § 27.120 Designation of a Coordinating Official; consultations and technical assistance. (a) The Executive Assistant Director will designate a Coordinating Official who will be responsible for ensuring that these regulations are implemented in a uniform, impartial, and fair manner. (b) The Coordinating Official shall provide guidance to covered facilities regarding compliance with this part and shall, as necessary and to the extent that resources permit, be available to consult and to provide technical assistance to an owner or operator who seeks such consultation or assistance. (c) In order to initiate consultations or seek technical assistance, a covered facility shall submit a written request for consultation or technical assistance to the Coordinating Official or contact the Department in any other manner specified in any subsequent guidance. Requests for consultation or technical guidance do not serve to toll any of the applicable timelines set forth in this part. (d) If a covered facility modifies its facility, processes, or the types or quantities of materials that it possesses, and believes that such changes may impact the covered facility's obligations under this part, the covered facility may request a consultation with the Coordinating Official as specified in paragraph (c). [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41891, Aug. 4, 2021] § 27.125 Severability. If a court finds any portion of this part to have been promulgated without proper authority, the remainder of this part will remain in full effect. Subpart B—Chemical Facility Security Program § 27.200 Information regarding security risk for a chemical facility. (a) Information to determine security risk. (b) Obtaining information from facilities. Federal Register Federal Register (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 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. (3) Where the Department requests that a facility complete and submit a Top-Screen, the facility must designate a person who is responsible for the submission of information through the CSAT system and who attests to the accuracy of the information contained in any CSAT submissions. Such submitter must be an officer of the corporation or other person designated by an officer of the corporation and must be domiciled in the United States. (c) Presumptively High-Risk Facilities. (2) If the facility deemed “presumptively high risk” pursuant to paragraph (c)(1) of this section completes the Top-Screen, and the Department determines that it does not present a high level of security risk under § 27.205, its status as “presumptively high risk” will terminate, and the Department will issue a notice to the facility to that effect. [72 FR 17729, Apr. 9, 2007, as amended at 72 FR 65418, Nov. 20, 2007; 86 FR 41891, Aug. 4, 2021] § 27.203 Calculating the screening threshold quantity by security issue. (a) General. (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., (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 Release-toxic, release-flammable, and release-explosive chemicals. (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. (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. (c) Theft and diversion chemicals. (d) Sabotage and contamination chemicals. [72 FR 65419, Nov. 20, 2007, as amended at 86 FR 41891, Aug. 4, 2021] § 27.204 Minimum concentration by security issue. (a) Release chemicals Release-toxic chemicals. (2) Release-flammable chemicals. http://www.nfpa.org. http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. (3) Release-explosive chemicals. (b) Theft and diversion chemicals Theft/Diversion-Chemical Weapons (CW) and Chemical Weapons Precursors (CWP) chemicals. (2) Theft/Diversion-Weapon of Mass Effect (WME) chemicals. (3) Theft/Diversion-Explosives/Improvised Explosive Device Precursor (EXP/IEDP) chemicals. (c) Sabotage and contamination chemicals. [72 FR 65419, Nov. 20, 2007, as amended at 86 FR 41891, Aug. 4, 2021] § 27.205 Determination that a chemical facility “presents a high level of security risk.” (a) Initial determination. (b) Redetermination. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41891, Aug. 4, 2021] § 27.210 Submissions schedule. (a) Initial submission. (1) Top-Screen. (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 (ii) Within the time frame provided in any written notification from the Department or specified in any subsequent Federal Register (2) Security Vulnerability Assessment. Federal Register (3) Site Security Plan. Federal Register (b) Resubmission schedule for covered facilities. (1) Top-Screen. (i) Tier 1 and Tier 2 covered facilities must complete and submit a new Top-Screen no less than two years, and no more than two years and 60 calendar days, from the date of the Department's approval of the facility's most recent Site Security Plan. (ii) Tier 3 and Tier 4 covered facilities must routinely complete and submit a Top-Screen no less than three years, and no more than three years and 60 calendar days, from the date of the Department's approval of the facility's most recent Site Security Plan. (2) Security Vulnerability Assessment. Federal Register (3) Site Security Plan. Federal Register (c) The Executive Assistant Director retains the authority to modify the schedule in this part as needed. The Executive Assistant Director may shorten or extend these time periods based on the operations at the facility, the nature of the covered facility's vulnerabilities, the level and immediacy of security risk, or for other reasons. If the Department alters the time periods for a specific facility, the Department will do so in written notice to the facility. (d) If a covered facility makes material modifications to its operations or site, the covered facility must complete and submit a revised Top-Screen to the Department within 60 days of the material modification. In accordance with the resubmission requirements in § 27.210(b)(2) and (3), the Department will notify the covered facility as to whether the covered facility must submit a revised Security Vulnerability Assessment, Site Security Plan, or both. [72 FR 17729, Apr. 9, 2007, as amended at 72 FR 65420, Nov. 20, 2007; 86 FR 41891, Aug. 4, 2021] § 27.215 Security vulnerability assessments. (a) Initial assessment. (1) Asset Characterization, which includes the identification and characterization of potential critical assets; identification of hazards and consequences of concern for the facility, its surroundings, its identified critical asset(s), and its supporting infrastructure; and identification of existing layers of protection; (2) Threat Assessment, which includes a description of possible internal threats, external threats, and internally-assisted threats; (3) Security Vulnerability Analysis, which includes the identification of potential security vulnerabilities and the identification of existing countermeasures and their level of effectiveness in both reducing identified vulnerabilities and in meeting the applicable risk-based performance standards; (4) Risk Assessment, including a determination of the relative degree of risk to the facility in terms of the expected effect on each critical asset and the likelihood of a success of an attack; and (5) Countermeasures Analysis, including strategies that reduce the probability of a successful attack or reduce the probable degree of success, strategies that enhance the degree of risk reduction, the reliability and maintainability of the options, the capabilities and effectiveness of mitigation options, and the feasibility of the options. (b) Except as provided in § 27.235, a covered facility must complete the Security Vulnerability Assessment through the CSAT process, or through any other methodology or process identified or issued by the Executive Assistant Director. (c) Covered facilities must submit a Security Vulnerability Assessment to the Department in accordance with the schedule provided in § 27.210. (d) Updates and revisions. (2) Notwithstanding paragraph (d)(1) of this section, a covered facility must update, revise, or otherwise alter its Security Vulnerability Assessment to account for new or differing modes of potential terrorist attack or for other security-related reasons, if requested by the Executive Assistant Director. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41891, Aug. 4, 2021] § 27.220 Tiering. (a) Preliminary determination of risk-based tiering. (b) Confirmation or alteration of risk-based tiering. (c) The Department shall place covered facilities in one of four risk-based tiers, ranging from highest risk facilities in Tier 1 to lowest risk facilities in Tier 4. (d) The Executive Assistant Director may provide the facility with guidance regarding the risk-based performance standards and any other necessary guidance materials applicable to its assigned tier. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.225 Site security plans. (a) The Site Security Plan must meet the following standards: (1) Address each vulnerability identified in the facility's Security Vulnerability Assessment, and identify and describe the security measures to address each such vulnerability; (2) Identify and describe how security measures selected by the facility will address the applicable risk-based performance standards and potential modes of terrorist attack including, as applicable, vehicle-borne explosive devices, water-borne explosive devices, ground assault, or other modes or potential modes identified by the Department; (3) Identify and describe how security measures selected and utilized by the facility will meet or exceed each applicable performance standard for the appropriate risk-based tier for the facility; and (4) Specify other information the Executive Assistant Director deems necessary regarding chemical facility security. (b) Except as provided in § 27.235, a covered facility must complete the Site Security Plan through the CSAT process, or through any other methodology or process identified or issued by the Executive Assistant Director. (c) Covered facilities must submit a Site Security Plan to the Department in accordance with the schedule provided in § 27.210. (d) Updates and revisions. (2) A covered facility must also update and revise its Site Security Plan in accordance with the schedule in § 27.210. (e) A covered facility must conduct an annual audit of its compliance with its Site Security Plan. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.230 Risk-based performance standards. (a) Covered facilities must satisfy the performance standards identified in this section. The Executive Assistant Director will issue guidance on the application of these standards to risk-based tiers of covered facilities, and the acceptable layering of measures used to meet these standards will vary by risk-based tier. Each covered facility must select, develop in their Site Security Plan, and implement appropriately risk-based measures designed to satisfy the following performance standards: (1) Restrict area perimeter. (2) Secure site assets. (3) Screen and control access. (i) Measures to deter the unauthorized introduction of dangerous substances and devices that may facilitate an attack or actions having serious negative consequences for the population surrounding the facility; and (ii) Measures implementing a regularly updated identification system that checks the identification of facility personnel and other persons seeking access to the facility and that discourages abuse through established disciplinary measures; (4) Deter, detect, and delay. (i) Deter vehicles from penetrating the facility perimeter, gaining unauthorized access to restricted areas or otherwise presenting a hazard to potentially critical targets; (ii) Deter attacks through visible, professional, well maintained security measures and systems, including security personnel, detection systems, barriers and barricades, and hardened or reduced value targets; (iii) Detect attacks at early stages, through countersurveillance, frustration of opportunity to observe potential targets, surveillance and sensing systems, and barriers and barricades; and (iv) Delay an attack for a sufficient period of time so to allow appropriate response through on-site security response, barriers and barricades, hardened targets, and well-coordinated response planning; (5) Shipping, receipt, and storage. (6) Theft and diversion. (7) Sabotage. (8) Cyber. (9) Response. (10) Monitoring. (i) Measures designed to ensure that security systems and equipment are in good working order and inspected, tested, calibrated, and otherwise maintained; (ii) Measures designed to regularly test security systems, note deficiencies, correct for detected deficiencies, and record results so that they are available for inspection by the Department; and (iii) Measures to allow the facility to promptly identify and respond to security system and equipment failures or malfunctions; (11) Training. (12) Personnel surety. (i) Measures designed to verify and validate identity; (ii) Measures designed to check criminal history; (iii) Measures designed to verify and validate legal authorization to work; and (iv) Measures designed to identify people with terrorist ties; (13) Elevated threats. (14) Specific threats, vulnerabilities, or risks. (15) Reporting of significant security incidents. (16) Significant security incidents and suspicious activities. (17) Officials and organization. (18) Records. (19) Address any additional performance standards the Executive Assistant Director may specify. (b) [Reserved] [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.235 Alternative security program. (a) Covered facilities may submit an Alternative Security Program (ASP) pursuant to the requirements of this section. The Executive Assistant Director may approve an ASP, in whole, in part, or subject to revisions or supplements, upon a determination that the ASP meets the requirements of this part and provides for an equivalent level of security to that established by this part. (1) A Tier 4 facility may submit an ASP in lieu of a Security Vulnerability Assessment, Site Security Plan, or both. (2) Tier 1, Tier 2, or Tier 3 facilities may submit an ASP in lieu of a Site Security Plan. Tier 1, Tier 2, and Tier 3 facilities may not submit an ASP in lieu of a Security Vulnerability Assessment. (b) The Department will provide notice to a covered facility about the approval or disapproval, in whole or in part, of an ASP, using the procedure specified in § 27.240 if the ASP is intended to take the place of a Security Vulnerability Assessment or using the procedure specified in § 27.245 if the ASP is intended to take the place of a Site Security Plan. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.240 Review and approval of security vulnerability assessments. (a) Review and approval. (b) If a Security Vulnerability Assessment does not satisfy the requirements of § 27.215, the Department will provide the facility with a written notification that includes a clear explanation of deficiencies in the Security Vulnerability Assessment. The facility shall then enter further consultations with the Department and resubmit a sufficient Security Vulnerability Assessment by the time specified in the written notification provided by the Department under this section. If the resubmitted Security Vulnerability Assessment does not satisfy the requirements of § 27.215, the Department will provide the facility with written notification (including a clear explanation of deficiencies in the Security Vulnerability Assessment) of the Department's disapproval of the Security Vulnerability Assessment. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.245 Review and approval of site security plans. (a) Review and approval. (i) The Department will review Site Security Plans through a two-step process. Upon receipt of the Site Security Plan from the covered facility, the Department will review the documentation and make a preliminary determination as to whether it satisfies the requirements of § 27.225. If the Department finds that the requirements are satisfied, the Department will issue a Letter of Authorization to the covered facility. (ii) Following issuance of the Letter of Authorization, the Department will inspect the covered facility in accordance with § 27.250 for purposes of determining compliance with the requirements of this part. (iii) If the Department approves the Site Security Plan in accordance with § 27.250, the Department will issue a Letter of Approval to the facility, and the facility shall implement the approved Site Security Plan. (2) The Department will not disapprove a Site Security Plan submitted under this part based on the presence or absence of a particular security measure. The Department may disapprove a Site Security Plan that fails to satisfy the risk-based performance standards established in § 27.230. (b) When the Department disapproves a preliminary Site Security Plan issued prior to inspection or a Site Security Plan following inspection, the Department will provide the facility with a written notification that includes a clear explanation of deficiencies in the Site Security Plan. The facility shall then enter further consultations with the Department and resubmit a sufficient Site Security Plan by the time specified in the written notification provided by the Department under this section. If the resubmitted Site Security Plan does not satisfy the requirements of § 27.225, the Department will provide the facility with written notification (including a clear explanation of deficiencies in the Site Security Plan) of the Department's disapproval of the Site Security Plan. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.250 Inspections and audits. (a) Authority. (b) Following preliminary approval of a Site Security Plan in accordance with § 27.245, the Department will inspect the covered facility for purposes of determining compliance with the requirements of this part. (1) If after the inspection, the Department determines that the requirements of § 27.225 have been met, the Department will issue a Letter of Approval to the covered facility. (2) If after the inspection, the Department determines that the requirements of § 27.225 have not been met, the Department will proceed as directed by § 27.245(b) in “Review and Approval of Site Security Plans.” (c) Time and manner. (1) If the Director or Executive Assistant Director determines that an inspection without such notice is warranted by exigent circumstances and approves such inspection; or (2) If any delay in conducting an inspection might be seriously detrimental to security, and the Associate Director for Chemical Security determines that an inspection without notice is warranted, and approves an inspector to conduct such inspection. (d) Inspectors. (1) An inspector will, on request, present his or her credentials for examination, but the credentials may not be reproduced by the facility. (2) An inspector may administer oaths and receive affirmations, with the consent of any witness, in any matter. (3) An inspector may gather information by reasonable means including, but not limited to, interviews, statements, photocopying, photography, and video- and audio-recording. All documents, objects, and electronically stored information collected by each inspector during the performance of that inspector's duties shall be maintained for a reasonable period of time in the files of the Department of Homeland Security maintained for that facility or matter. (4) An inspector may request forthwith access to all records required to be kept pursuant to § 27.255. An inspector shall be provided with the immediate use of any photocopier or other equipment necessary to copy any such record. If copies can not be provided immediately upon request, the inspector shall be permitted immediately to take the original records for duplication and prompt return. (e) Confidentiality. (f) Guidance. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.255 Recordkeeping requirements. (a) Except as provided in § 27.255(b), the covered facility must keep records of the activities as set out below for at least three years and make them available to the Department upon request. A covered facility must keep the following records: (1) Training. (2) Drills and exercises. (3) Incidents and breaches of security. (4) Maintenance, calibration, and testing of security equipment. (5) Security threats. (6) Audits. (7) Letters of Authorization and Approval. (b) A covered facility must retain records of submitted Top-Screens, Security Vulnerability Assessments, Site Security Plans, and all related correspondence with the Department for at least six years and make them available to the Department upon request. (c) To the extent necessary for security purposes, the Department may request that a covered facility make available records kept pursuant to other Federal programs or regulations. (d) Records required by this section may be kept in electronic format. If kept in an electronic format, they must be protected against unauthorized access, deletion, destruction, amendment, and disclosure. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] Subpart C—Orders and Adjudications § 27.300 Orders. (a) Orders generally. (b) Orders Assessing Civil Penalty and Orders to Cease Operations. (2) Following the issuance of an Order by the Executive Assistant Director pursuant to paragraph (b)(1) of this section, the facility may enter further consultations with the Department. (3) Where the Executive Assistant Director determines that a facility is in violation of an Order issued pursuant to paragraph (a) of this section and issues an Order Assessing Civil Penalty pursuant to paragraph (b)(1) of this section, a chemical facility is liable to the United States for a civil penalty of not more than $25,000 for each day during which the violation continues, if the violation of the Order occurred on or before November 2, 2015, or $41,093 for each day during which the violation of the Order continues, if the violation occurred after November 2, 2015. (c) Procedures for Orders. (i) The name and address of the facility in question; (ii) A listing of the provision(s) that the facility is alleged to have violated; (iii) A statement of facts upon which the alleged instances of noncompliance are based; (iv) A clear explanation of deficiencies in the facility's chemical security program, including, if applicable, any deficiencies in the facility's Security Vulnerability Assessment, Site Security Plan, or both; (v) A statement indicating what action(s) the facility must take to remedy the instance(s) of noncompliance; and (vi) The date by which the facility must comply with the terms of the Order. (2) The Executive Assistant Director may establish procedures for the issuance of Orders. (d) A facility must comply with the terms of the Order by the date specified in the Order unless the facility has filed a timely Notice of Application for Review under § 27.310. (e) Where a facility or other person contests the determination of the Executive Assistant Director to issue an Order, a chemical facility may seek an adjudication pursuant to § 27.310. (f) An Order issued under this section becomes final agency action when the time to file a Notice of Application for Review under § 27.310 has passed without such a filing or upon the conclusion of adjudication or appeal proceedings under this subpart. [72 FR 17729, Apr. 9, 2007, as amended at 81 FR 43001, July 1, 2016; 82 FR 8579, Jan. 27, 2017; 83 FR 13834, Apr. 2, 2018; 84 FR 13508, Apr. 5, 2019; 85 FR 36478, June 17, 2020; 86 FR 41892, Aug. 4, 2021; 86 FR 57539, Oct. 18, 2021; 87 FR 1326, Jan. 11, 2022; 88 FR 2182, Jan. 13, 2023] § 27.305 Neutral adjudications. (a) Any facility or other person who has received a Finding pursuant to § 27.230(a)(12)(iv), a Determination pursuant to § 27.245(b), or an Order pursuant to § 27.300 is entitled to an adjudication, by a neutral adjudications officer, of any issue of material fact relevant to any administrative action that deprives that person of a cognizable interest in liberty or property. (b) A neutral adjudications officer appointed pursuant to § 27.315 shall issue an Initial Decision on any material factual issue related to a Finding pursuant to § 27.230(a)(12)(iv), a Determination pursuant to § 27.245, or an Order pursuant to § 27.300 before any such administrative action is reviewed on appeal pursuant to § 27.345. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.310 Commencement of adjudication proceedings. (a) Proceedings instituted by facilities or other persons. (1) Finding, pursuant to the § 27.230(a)(12)(iv), that an individual is a potential security threat; (2) Disapproving a Site Security Plan pursuant to § 27.245(b); or (3) Issuing an Order pursuant to § 27.300(a) or (b). (b) Procedure for applications by facilities or other persons. (1) An Applicant institutes a Proceeding by filing a Notice of Application for Review. (2) An Applicant must file a Notice of Application for Review within seven calendar days of notification to the facility or other person of the Executive Assistant Director's Finding, Determination, or Order. (3) The Applicant shall file and simultaneously serve each Notice of Application for Review and all subsequent filings on the Executive Assistant Director and the Office of the Chief Counsel. (4) An Order is stayed from the timely filing of a Notice of Application for Review until the Presiding Officer issues an Initial Decision, unless the Secretary has lifted the stay due to exigent circumstances pursuant to paragraph (d) of this section. (5) The Applicant shall file and serve an Application for Review within 14 calendar days of the notification to the facility or other person of the Executive Assistant Director's Finding, Determination, or Order. (6) Each Application for Review shall be accompanied by all legal memoranda, other documents, declarations, affidavits, and other evidence supporting the position asserted by the Applicant. (c) Response. (d) Procedural modifications. (1) Lift any stay applicable to any Order under § 27.300; (2) Modify the time for a response; (3) Rule on the sufficiency of Applications for Review; or (4) Otherwise modify these procedures with respect to particular matters. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.315 Presiding officers for proceedings. (a) Immediately upon the filing of any Application for Review, the Secretary shall appoint an attorney, who is employed by the Department and who has not performed any investigative or prosecutorial function with respect to the matter, to act as a neutral adjudications officer or Presiding Officer for the compilation of a factual record and the recommendation of an Initial Decision for each Proceeding. (b) Notwithstanding paragraph (a) of this section, the Secretary may appoint one or more attorneys who are employed by the Department and who do not perform any investigative or prosecutorial function with respect to this subpart, to serve, generally, in the capacity as Presiding Officer(s) for such matters pursuant to such procedures as the Secretary may hereafter establish. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.320 Prohibition on ex parte communications during proceedings. (a) At no time after the designation of a Presiding Officer for a Proceeding and prior to the issuance of a Final Decision pursuant to § 27.345 with respect to a facility or other person, shall the appointed Presiding Officer, or any person who will advise that official in the decision on the matter, discuss ex parte the merits of the proceeding with any interested person outside the Department, with any Department official who performs a prosecutorial or investigative function in such proceeding or a factually related proceeding, or with any representative of such person. (b) If, after appointment of a Presiding Officer and prior to the issuance of a Final Decision pursuant to § 27.345 with respect to a facility or other person, the appointed Presiding Officer, or any person who will advise that official in the decision on the matter, receives from or on behalf of any party, by means of an ex parte communication, information that is relevant to the decision of the matter and to which other parties have not had an opportunity to respond, a summary of such information shall be served on all other parties, who shall have an opportunity to reply to the ex parte communication within a time set by the Presiding Officer. (c) The consideration of classified information or CVI pursuant to an in camera procedure does not constitute a prohibited ex parte communication for purposes of this subpart. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.325 Burden of proof. The Executive Assistant Director bears the initial burden of proving the facts necessary to support the challenged administrative action at every proceeding instituted under this subpart. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.330 Summary decision procedures. (a) The Presiding Officer appointed for each Proceeding shall immediately consider whether the summary adjudication of the Application for Review is appropriate based on the Application for Review, the Response, and all the supporting filings of the parties pursuant to §§ 27.310(b)(5) and 27.310(c). (1) The Presiding Officer shall promptly issue any necessary scheduling order for any additional briefing of the issue of summary adjudication on the Application for Review and Response. (2) The Presiding Officer may conduct scheduling conferences and other proceedings that the Presiding Officer determines to be appropriate. (b) If the Presiding Officer determines that there is no genuine issue of material fact and that one party or the other is entitled to a decision as a matter of law, then the record shall be closed and the Presiding Officer shall issue an Initial Decision on the Application for Review pursuant to § 27.340. (c) If a Presiding Officer determines that any factual issues require the cross-examination of one or more witnesses or other proceedings at a hearing, the Presiding Officer, in consultation with the parties, shall promptly schedule a hearing to be conducted pursuant to § 27.335. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.335 Hearing procedures. (a) Any hearing shall be held as expeditiously as possible at the location most conducive to a prompt presentation of any necessary testimony or other proceedings. (1) Videoconferencing and teleconferencing may be used where appropriate at the discretion of the Presiding Officer. (2) Each party offering the affirmative testimony of a witness shall present that testimony by declaration, affidavit, or other sworn statement submitted in advance as ordered by the Presiding Officer. (3) Any witness presented for further examination shall be asked to testify under an oath or affirmation. (4) The hearing shall be recorded verbatim. (b)(1) A facility or other person may appear and be heard on his or her own behalf or through any counsel of his or her choice who is qualified to possess CVI. (2) A facility or other person individually, or through counsel, may offer relevant and material information including written direct testimony, which he or she believes should be considered in opposition to the administrative action, or which may bear on the sanction being sought. (3) The facility or other person individually, or through counsel, may conduct such cross-examination as may be specifically allowed by the Presiding Officer for a full determination of the facts. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021] § 27.340 Completion of adjudication proceedings. (a) The Presiding Officer shall close and certify the record of the adjudication promptly upon the completion of: (1) Summary judgment proceedings, (2) A hearing, if necessary, (3) The submission of post hearing briefs, if any are ordered by the Presiding Officer, and (4) The conclusion of oral arguments, if any are permitted by the Presiding Officer. (b) The Presiding Officer shall issue an Initial Decision based on the certified record, and the decision shall be subject to appeal pursuant to § 27.345. (c) An Initial Decision shall become a final agency action on the expiration of the time for an Appeal pursuant to § 27.345. § 27.345 Appeals. (a) Right to appeal. (b) Procedure for appeals. (2) The Executive Assistant Director, a facility, or other person must file a Notice of Appeal within seven calendar days of the service of the Presiding Officer's Initial Decision. (3) The Appellant shall file with the designated office and simultaneously serve each Notice of Appeal and all subsequent filings on the Office of the Chief Counsel. (4) An Initial Decision is stayed from the timely filing of a Notice of Appeal until the Director issues a Final Decision, unless the Secretary lifts the stay due to exigent circumstances pursuant to § 27.310(d). (5) The Appellant shall file and serve a Brief within 28 calendar days of the notification of the service of the Presiding Officer's Initial Decision. (6) The Appellee shall file and serve its Opposition Brief within 28 calendar days of the service of the Appellant's Brief. (c) The Director may provide for an expedited appeal for appropriate matters. (d) Ex parte communications. (2) If, after the filing of a Notice of Appeal pursuant to paragraph (b)(1) of this section and prior to the issuance of a Final Decision on an Appeal pursuant to paragraph (f) of this section with respect to a facility or other person, the Director, his or her designee, or any person who will advise that official in the decision on the matter, receives from or on behalf of any party, by means of an ex parte communication, information that is relevant to the decision of the matter and to which other parties have not had an opportunity to respond, a summary of such information shall be served on all other parties, who shall have an opportunity to reply to the ex parte communication within a time set by the Director or his or her designee. (3) The consideration of classified information or CVI pursuant to an in camera procedure does not constitute a prohibited ex parte communication for purposes of this subpart. (e) A facility or other person may elect to have the Director participate in any mediation or other resolution process by expressly waiving, in writing, any argument that such participation has compromised the Appeal process. (f) The Director shall issue a Final Decision and serve it upon the parties. A Final Decision made by the Director constitutes final agency action. (g) The Secretary may establish procedures for the conduct of Appeals pursuant to this section. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41893, Aug. 4, 2021] Subpart D—Other § 27.400 Chemical-terrorism vulnerability information. (a) Applicability. et seq. (b) Chemical-terrorism vulnerability information. (1) Security Vulnerability Assessments under § 27.215; (2) Site Security Plans under § 27.225; (3) Documents relating to the Department's review and approval of Security Vulnerability Assessments and Site Security Plans, including Letters of Authorization, Letters of Approval, and responses thereto; written notices; and other documents developed pursuant to § 27.240 or § 27.245; (4) Alternative Security Programs under § 27.235; (5) Documents relating to inspection or audits under § 27.250; (6) Any records required to be created or retained under § 27.255; (7) Sensitive portions of orders, notices, or letters under § 27.300; (8) Information developed pursuant to §§ 27.200 and 27.205; and (9) Other information developed for chemical facility security purposes that the Secretary, in his or her discretion, determines is similar to the information protected in § 27.400(b)(1) through (8) and thus warrants protection as CVI. (c) Covered persons. (1) Each person who has a need to know CVI, as specified in § 27.400(e); and (2) Each person who otherwise receives or gains access to what they know or should reasonably know constitutes CVI. (d) Duty to protect information. (1) Take reasonable steps to safeguard CVI in that person's possession or control, including electronic data, from unauthorized disclosure. When a person is not in physical possession of CVI, the person must store it in a secure container, such as a safe, that limits access only to covered persons with a need to know; (2) Disclose, or otherwise provide access to, CVI only to persons who have a need to know; (3) Refer requests for CVI by persons without a need to know to the Executive Assistant Director; (4) Mark CVI as specified in § 27.400(f); (5) Dispose of CVI as specified in § 27.400(k); (6) If a covered person receives a record or verbal transmission containing CVI that is not marked as specified in § 27.400(f), the covered person must: (i) Mark the record as specified in § 27.400(f) of this section; and (ii) Inform the sender of the record that the record must be marked as specified in § 27.400(f); or (iii) If received verbally, make reasonable efforts to memorialize such information and mark the memorialized record as specified in § 27.400(f) of this section, and inform the speaker of any determination that such information warrants CVI protection. (7) When a covered person becomes aware that CVI has been released to persons without a need to know (including a covered person under § 27.400(c)(2)), the covered person must promptly inform the Executive Assistant Director; and (8) In the case of information that is CVI and also has been designated as Protected Critical Infrastructure Information under 6 U.S.C. 133, any covered person in possession of such information must comply with the disclosure restrictions and other requirements applicable to such information under 6 U.S.C. 133 and any implementing regulations. (e) Need to know. (i) When the person requires access to specific CVI to carry out chemical facility security activities approved, accepted, funded, recommended, or directed by the Department. (ii) When the person needs the information to receive training to carry out chemical facility security activities approved, accepted, funded, recommended, or directed by the Department. (iii) When the information is necessary for the person to supervise or otherwise manage individuals carrying out chemical facility security activities approved, accepted, funded, recommended, or directed by the Department. (iv) When the person needs the information to provide technical or legal advice to a covered person, who has a need to know the information, regarding chemical facility security requirements of Federal law. (v) When the Department determines that access is required under § 27.400(h) or § 27.400(i) in the course of a judicial or administrative proceeding. (2) Federal employees, contractors, and grantees. (ii) A person acting in the performance of a contract with or grant from the Department has a need to know CVI if access to the information is necessary to performance of the contract or grant. Contractors or grantees may not further disclose CVI without the consent of the Executive Assistant Director. (iii) The Department may require that non-Federal persons seeking access to CVI complete a non-disclosure agreement before such access is granted. (3) Background check. (4) Need to know further limited by the Department. (5) Nothing in § 27.400(e) shall prevent the Department from determining, in its discretion, that a person not otherwise listed in § 27.400(e) has a need to know CVI in a particular circumstance. (f) Marking of paper records. (i) The outside of any front and back cover, including a binder cover or folder, if the document has a front and back cover; (ii) Any title page; and (iii) Each page of the document. (2) Protective markings. (3) Distribution limitation statement. (4) Other types of records. (g) Disclosure by the Department In general. (2) Disclosure of Segregable Information under the Freedom of Information Act and the Privacy Act. (h) Disclosure in administrative enforcement proceedings. et seq. et seq. (2) Security background check. (i) Disclosure in judicial proceedings. et seq. (i) Security background check. (ii) [Reserved] (2) In any judicial enforcement proceeding under 6 U.S.C. 621 et seq. (i) Redact specified items of CVI from documents to be introduced into evidence or made available to the defendant through discovery under the Federal Rules of Civil Procedure; (ii) Substitute a summary of the information for such CVI; or (iii) Substitute a statement admitting relevant facts that the CVI would tend to prove. (3) The court shall grant a request under paragraph (i)(2) of this section if, after in camera review, the court finds that the redacted item, stipulation, or summary is sufficient to allow the defendant to prepare a defense. (4) If the court enters an order granting a request under paragraph (i)(2) of this section, the entire text of the documents to which the request relates shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal. (5) If the court enters an order denying a request of the United States under paragraph (i)(2) of this section, the United States may take an immediate, interlocutory appeal of the court's order in accordance with 18 U.S.C. 2339B(f)(4), (5). For purposes of such an appeal, the entire text of the documents to which the request relates, together with any transcripts of arguments made ex parte to the court in connection therewith, shall be maintained under seal and delivered to the appellate court. (6) Except as provided otherwise at the sole discretion of the Secretary, access to CVI shall not be available in any civil or criminal litigation unrelated to the enforcement under 6 U.S.C. 621 et seq. (7) Taking of trial testimony Objection. (ii) Action by court. (A) Permitting the United States to provide the court, ex parte, with a proffer of the witness's response to the question or line of inquiry; and (B) Requiring the defendant to provide the court with a proffer of the nature of the information that the defendant seeks to elicit. (iii) Obligation of defendant. (8) Construction. (j) Consequences of violation. (k) Destruction of CVI. et seq. et seq. (2) Other covered persons In general. (ii) Exception. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41893, Aug. 4, 2021] § 27.405 Review and preemption of State laws and regulations. (a) As per current law, no law, regulation, or administrative action of a State or political subdivision thereof, or any decision or order rendered by a court under State law, shall have any effect if such law, regulation, or decision conflicts with, hinders, poses an obstacle to, or frustrates the purposes of this regulation or of any approval, disapproval, or order issued there under. (1) Nothing in this part is intended to displace other federal requirements administered by the Environmental Protection Agency, U.S. Department of Justice, U.S. Department of Labor, U.S. Department of Transportation, or other federal agencies. (2) [Reserved] (b) State law, regulation, or administrative action defined. For purposes of this section, the phrase “State law, regulation, or administrative action” means any enacted law, promulgated regulation, ordinance, administrative action, order, decision, or common law standard of a State or any of its political subdivisions. (c) Submission for review. (d) Review and opinion Review. (2) Opinion. (3) Consultation with States. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41893, Aug. 4, 2021] § 27.410 Third-party actions. (a) Nothing in this part shall confer upon any person except the Secretary a right of action, in law or equity, for any remedy including, but not limited to, injunctions or damages to enforce any provision of this part. (b) An owner or operator of a chemical facility may petition the Executive Assistant Director to provide the Department's view in any litigation involving any issues or matters regarding this part. [72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41894, Aug. 4, 2021] Appendix A to Part 27—DHS Chemicals of Interest [72 FR 65420, Nov. 20, 2007]