Reader Question - Material Modifications

I had an interesting question sent to me by a long time reader of this blog concerning the term ‘material modifications’ as it is used in 6 CFR 27.210(d). That Chemical Facility Anti-Terrorism Standards (CFATS) requirement states that: “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.” The reader asks if the term ‘material modifications’ is defined in the CFR.

No Definition

The short answer is no. This is one of many definitions missing from the CFATS rule. In this case, I suspect that the reason is that there is no specific definition that would fit the situation. The issue was discussed, however, in the preamble to the interim final rule that established the CFATS program. We can see that discussion in response to a specific public request for a definition of the term:

“Material modifications can include a whole host of changes, and for that reason, the Department cannot provide an exhaustive list of material modifications. In general, though, DHS expects that material modifications would likely include changes at a facility to chemical holdings (including the presence of a new chemical, increased amount of an existing chemical, or the modified use of a given chemical) or to site physical configuration, which may (1) substantially increase the level of consequence should a terrorist attack or incident occur; (2) substantially increase a facility’s vulnerabilities from those identified in the facility’s Security Vulnerability Assessment; (3) substantially effect the information already provided in the facility’s Top-Screen submission; or (4) substantially effect the measures contained in the facility’s Site Security Plan.”

Change in Chemical Holdings

The most obvious change in chemical holdings that would be considered a material modification would be the introduction of a new DHS chemical of interest (COI) found in Appendix A to 6 CFR 27. Even if the new COI were not held at a screening threshold quantity (STQ) the addition could still qualify as a material modification if the addition met one of the four standards listed in the preamble discussion.

An inventory increase in one or more of the existing COI reported on the most recent Top Screen could also be considered a material modification that triggers a new Top Screen submission requirement. How much of an increase would be a trigger the requirement would depend on the chemical in question. A one pound increase in propane (Release – Flammable) would almost certainly not be a trigger while a one pound increase in Chlorosarin (Theft - CW) would almost certainly trigger the requirement. Again, the four standards would provide guidance on how much is significant.

The addition of non-COI chemicals to facility chemical holdings is even more complicated. The addition of a new flammable liquid in sizeable quantities could increase the size of a potential conflagration at a facility holding flammable-release COI. The addition of another potential (but unlisted) precursor to a chemical weapon could make it easier for a terrorist to manufacture that chemical weapon as a result of a successful attack on the facility. Once again, the four standards are what establishes the existence of a material modification.

Facility Configuration

Changes to the physical structure or operation of a CFATS covered facility could certainly be considered a material modification. Which changes would trigger the new Top Screen reporting requirements would depend on the facility and the COI holdings at that facility.

At a facility with holdings of theft-diversion COI anything that increases the traffic through the facility would almost certainly be considered a material modification. This could include construction activities, changes in the number of contractors on site, or even changes in the number of pick-ups and deliveries at the site. Again, the four standards listed in the preamble will determine which changes trigger the reporting requirement.

Decreased Risk

Facilities also need to remember that the material modification requirement is not limited to changes that increase the risk of terrorist attack at the facility. Changes that decrease risk can also trigger the reporting requirement. The folks at the Infrastructure Security Compliance Division (ISCD) are certainly not going to fine a facility for failing to report changes that reduce risk, but ISCD could lower the facility Tier ranking or even remove a facility from CFATS coverage when material modifications produce significant reductions in the risk of terrorist attack.

Always Consider Material Modification

Just about any change at a facility could have an effect on the security of the facility. CFATS covered facilities have a legal obligation to take a specific look at any changes in facility structure, operation or chemical holdings. This should be a part of the standard management of change process at the facility. Facility management needs to consider the chance that any changes made to the facility may trigger additional security requirements (and the associated costs) if the changes:

• Substantially increase the level of consequence should a terrorist attack or incident occur;

• Substantially increase a facility’s vulnerabilities from those identified in the facility’s Security Vulnerability Assessment;

• Substantially effect the information already provided in the facility’s Top-Screen submission; or

• Substantially effect the measures contained in the facility’s Site Security Plan.

If there are questions about a pending change the simplest thing to do is to ask DHS if they think that a change would be considered a material modification at the facility. For major (read costly) changes at a facility, the earlier the question is asked the better. Remember, the cost of any necessary security changes should be included in estimating costs for any facility modification.