Friday, January 24, 2014

What Constitutes “Possesses”?

I had an interesting theoretical CFATS question thrown at me this week by a reader, a question that for fairly obvious reasons was not going to be offered to the folks at the DHS Infrastructure Security Compliance Division (ISCD), the people who administer the CFATS program. As I have to periodically remind people, I am not a lawyer, so I cannot offer legal advice and I certainly don’t work for ISCD, so my regulatory advice is somewhat suspect. Having said that; I always like looking at odd things from different perspectives. So let’s look at this question.

The Situation

A facility routinely uses aqueous ammonia and receives the material in bulk in quantities in excess of 20,000 lbs. The concentration of the aqueous ammonia ordered and used in the facility is 19%. This puts the product outside of the description for ammonia found in Appendix A, 6 CFR Part 27 since that document describes the DHS Chemical of Interest as “Ammonia (conc. 20% or greater)”. So the facility has no responsibility for reporting their use of aqueous ammonia to ISCD even though the amount of the material on-hand routinely exceeds that screening threshold quantity (STQ) for the defined ammonia (20,000 lbs).

A mistake on the vendor’s part results in a load of 28.4% ammonia being sent to the facility to fulfill an order for 19% ammonia. The paperwork accompanying the shipment (including both the bill-of-lading and the certificate of analysis) indicates that the material received is 19% ammonia as requested, so it is accepted and unloaded by the facility. Subsequent use of the material indicates that it is more concentrated than it should be and subsequent on-site testing confirms that a mistake has been made.

The vendor acknowledges the mistake, apologizes vociferously, and expeditiously removes the unused portion of the material from the facility and makes a complete refund for the full amount delivered (including the portion consumed).

The question is, does the facility have to report the 40,000 lbs of 28.4% ammonia received to DHS ISCD on a Top Screen submission?

On the One Hand

The CFATS regulations clearly state {§27.200(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 the minimum concentration provisions in § 27.204 if it possesses [emphasis added] any of the chemicals listed in appendix A to this part at or above the STQ for any applicable Security Issue.”

The 40,000 lbs of 28.4% ammonia delivered to the facility is clearly a chemical listed in Appendix A above the STQ. This means that compliance with the CFATS regulations requires that the facility register with CFATS for the purpose of establishing a Chemical Security Assessment Tool (CSAT) account so that a Top Screen can be submitted within 60 days of the time that the 28.4% ammonia was delivered to the facility.

On the Other Hand

The offending ammonia was removed from the site before there would have even been a chance for DHS to provide log-in credentials for the facility personnel to begin to work on the Top Screen submission. The toxic gas release hazard was gone with the off-spec ammonia. There was no intent by the facility to purchase, obtain or use ammonia in any concentration higher than 19%.

While the Top Screen submission is relatively un-intrusive as chemical regulations go, it does take time and administrative efforts to complete the registration and Top Screen submission process. For a facility to have to make even those relatively minor efforts for a mistake made and corrected by someone else, does not seem to make a lot of sense.

The purpose of the CFATS regulations is to ensure that chemical facilities that make, store or use chemicals that could be used by terrorists in effecting a chemical attack, either by causing a hazardous release of toxic, flammable or toxic chemicals or by using stolen or diverted chemicals to make improvised chemical weapons or explosives that would be used in a subsequent attack. In this particular case, that purpose would not be served by requiring the facility to complete the registration/Top Screen processes for chemicals that are no longer and never again should be on hand at the facility.

Letter or Intent of the Rule

This comes down to the old dilemma, which is more important, the letter of the law or the intent of the law. I personally tend to come down on the side of the spirit of the law. While the law should be blind and impartial so that it treats everyone the same, it also must be practical. Blind adherence to the letter of the law is frequently discriminatory in application. A small company being required to meet the §27.200 requirements in this case would be more burdened by that requirement than a large company in the same situation.

Since the purpose of the regulation in this case would not be measurably served by a strict adherence to the letter of the law, the application of the burden would be discriminatory against the small company and (again in my opinion) should be avoided.

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