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.
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