Chemical Facility Security: Issues and Options
for the 112th Congress
Dana A. Shea
Specialist in Science and Technology Policy
September 29, 2011
Congressional Research Service
7-5700
www.crs.gov
R41642
CRS Report for Congress
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epared for Members and Committees of Congress
Chemical Facility Security: Issues and Options for the 112th Congress
Summary
The Department of Homeland Security (DHS) has statutory authority to regulate chemical
facilities for security purposes. The 112th Congress extended this authority through October 4,
2011. The 112th Congress debated the scope and details of reauthorization and continues to
consider legislation establishing an authority with longer duration. Some Members of Congress
support an extension, either short- or long-term, of the existing authority. Other Members call for
revision and more extensive codification of chemical facility security regulatory provisions.
Questions regarding the current law’s effectiveness in reducing chemical facility risk and the
sufficiency of federal funding for chemical facility security exacerbate the tension between
continuing current policies and changing the statutory authority.
The DHS is in the process of implementing the authorized regulations, called chemical facility
anti-terrorism standards (CFATS). The DHS finalized CFATS regulations in 2007. No chemical
facilities have completed the CFATS process, which starts with information submission by
chemical facilities and finishes with inspection and approval of facility security measures by
DHS. Several factors, including the level of detail provided to DHS and the availability of
inspectors, likely complicate the inspection process and lead to delays in inspection.
Policymakers have questioned whether the compliance rate with the CFATS is sufficient to
address this homeland security issue.
Key policy issues debated in previous Congresses contribute to the reauthorization debate. These
issues include the adequacy of DHS resources and effort; the appropriateness and scope of federal
preemption of state chemical facility security activities; the availability of information for public
comment, potential litigation, and congressional oversight; the universe of facilities that are
considered as chemical facilities; and the role of inherently safer technologies in achieving
security goals.
The 112th Congress might take various approaches to this issue. Congress might allow the
statutory authority to expire but continue providing appropriations to administer the regulations.
Congress might permanently or temporarily extend the expiring statutory authority in order to
observe the impact of the current regulations and, if necessary, address any perceived weaknesses
at a later date. Congress might codify the existing regulation in statute and reduce the discretion
available to the Secretary of Homeland Security to change the current regulatory framework.
Alternatively, Congress might substantively change the current regulation’s implementation,
scope, or impact by amending the existing statute or creating a new one. Finally, Congress might
choose to terminate the program by allowing its authority to lapse and removing funding for the
program. This last approach would leave chemical facility security regulation to the discretion of
state and local governments.
Both authorization and appropriation legislation in the 112th Congress addresses chemical facility
security. The Senate- and House-passed continuing resolution, H.R. 2017, would continue the
existing authority until October 4, 2011. The House-passed continuing resolution, H.R. 2608,
would extend the existing authority until November 18, 2011. Authorizing legislation in the
House includes H.R. 225; H.R. 901, ordered reported as amended by the House Committee on
Homeland Security and referred to the House Committee on Energy and Commerce; H.R. 908,
ordered reported as amended by the House Committee on Energy and Commerce; H.R. 916; H.R.
2890; S. 473, ordered reported as amended by the Senate Committee on Homeland Security and
Governmental Affairs, and S. 709.
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Chemical Facility Security: Issues and Options for the 112th Congress
Contents
Introduction...................................................................................................................................... 1
Overview of Statute and Regulation................................................................................................ 1
Implementation ................................................................................................................................ 3
Policy Issues .................................................................................................................................... 7
Adequacy of Funds.................................................................................................................... 7
Rate of Inspection...................................................................................................................... 8
Federal Preemption of State Activities .................................................................................... 10
Transparency of Process.......................................................................................................... 11
Definition of Chemical Facility............................................................................................... 12
Inherently Safer Technologies ................................................................................................. 14
Policy Options ............................................................................................................................... 16
Maintain the Existing Regulatory Framework ........................................................................ 16
Extend the Sunset Date ..................................................................................................... 16
Codify the Existing Regulations ....................................................................................... 17
Alter the Existing Statutory Authority..................................................................................... 17
Accelerate or Decelerate Compliance Activities............................................................... 18
Incorporate Additional Facility Types ............................................................................... 18
Harmonize Regulations ..................................................................................................... 21
Consider Inherently Safer Technologies ........................................................................... 21
Modify Information Security Provisions........................................................................... 23
Preempt State Regulations................................................................................................. 25
Congressional Action..................................................................................................................... 25
Extend the Existing Authority ................................................................................................. 25
H.R. 901 ............................................................................................................................ 25
H.R. 908 ............................................................................................................................ 26
H.R. 916 ............................................................................................................................ 26
H.R. 2017 .......................................................................................................................... 26
H.R. 2608 .......................................................................................................................... 26
S. 473................................................................................................................................. 26
Modify the Existing Authority................................................................................................. 27
H.R. 225 ............................................................................................................................ 27
S. 709................................................................................................................................. 27
H.R. 2890 .......................................................................................................................... 27
S. 711................................................................................................................................. 27
Tables
Table 1. DHS Funding for Chemical Facility Security Regulation by Fiscal Year.......................... 4
Table 2. Facilities Regulated by DHS under CFATS....................................................................... 5
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Contacts
Author Contact Information........................................................................................................... 28
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Chemical Facility Security: Issues and Options for the 112th Congress
Introduction
Even before September 11, 2001, congressional policymakers have expressed concern about the
safety and security of facilities possessing certain amounts of hazardous chemicals. The sudden
release of hazardous chemicals from facilities storing large quantities might potentially harm
many people living or working near the facility. Chemical facilities engaged in security activities
on a voluntary basis. Following September 11, 2001, some states enacted laws requiring
additional consideration of security at chemical facilities.1 Congress debated whether the federal
government should regulate such facilities for security purposes to reduce the risk they pose. The
109th Congress passed legislation in 2006 providing the Department of Homeland Security (DHS)
statutory authority to regulate chemical facilities for security purposes, and subsequent
Congresses have extended this authority. The statutory authority expires October 4, 2011.
Advocacy groups, stakeholders, and policymakers have called for congressional reauthorization
of this authority, though they disagree about the preferred approach. Congress may extend the
existing authority, revise the existing authority to resolve potentially contentious issues, or allow
this authority to lapse.
This report provides a brief overview of the existing statutory authority and the regulation
implementing this authority. It describes several policy issues raised in previous debates
regarding chemical facility security and identifies policy options for congressional consideration.
Finally, legislation in the 112th Congress is discussed.
Overview of Statute and Regulation
The 109th Congress provided DHS with statutory authority to regulate chemical facilities for
security purposes.2 The statute explicitly identified some DHS authorities and left other aspects to
the discretion of the Secretary of Homeland Security. The statute contains a “sunset provision”
and expires on October 4, 2011.3
On April 9, 2007, the Department of Homeland Security issued an interim final rule regarding the
chemical facility anti-terrorism standards (CFATS).4 This interim final rule entered into force on
1 For example, New Jersey, Maryland, and New York each enacted laws addressing security at chemical facilities.
2 Section 550, P.L. 109-295, Department of Homeland Security Appropriations Act, 2007.
3 The original statute expired on October 4, 2009, three years after enactment. The Department of Homeland Security
Appropriations Act, 2010 (P.L. 111-83) extended the existing statutory authority an additional year. The Continuing
Appropriations Act, 2011 (P.L. 111-242) extended the statutory authority through December 3, 2010. The second
continuing resolution (P.L. 111-290) extended the statutory authority through December 18, 2010. The third continuing
resolution (P.L. 111-317) extended the statutory authority through December 21, 2010. The Continuing Appropriations
and Surface Transportation Extensions Act, 2011 (P.L. 111-322) extended the statutory authority through March 4,
2011. The Further Continuing Appropriations Amendments, 2011 (P.L. 112-4) extended the statutory authority through
March 18, 2011. The Additional Continuing Appropriations Amendments, 2011 (P.L. 112-6) extended the statutory
authority through April 8, 2011. The Further Additional Continuing Appropriations Amendments, 2011 (P.L. 112-8)
extended the statutory authority through April 15, 2011. The Department of Defense and Full-Year Continuing
Appropriations Act, 2011 (P.L. 112-10) extends the statutory authority through October 4, 2011.
4 72 Federal Register 17688-17745 (April 9, 2007). An interim final rule is a rule that meets the requirements for a
final rule and that has the same force and effect as a final rule, but that contains an invitation for further public
comment on its provisions. After reviewing comments to the interim final rule, an agency may modify the interim final
rule and issue a “final” final rule. The DHS first issued a proposed rule in December 2006 and solicited public
(continued...)
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June 8, 2007. The interim final rule implements both statutory authority explicit in P.L. 109-295,
Section 550, and authorities DHS found Congress implicitly granted. In promulgating the interim
final rule, DHS interpreted the language of the statute to determine what it asserts was the intent
of Congress when crafting the statutory authority. Consequently, much of the rule arises from the
Secretary’s discretion and interpretation of legislative intent rather than explicit statutory
language.
Under the interim final rule, the Secretary of Homeland Security determines which chemical
facilities must meet regulatory security requirements, based on the degree of risk posed by each
facility. The DHS lists 322 chemicals as “chemicals of interest” for the purposes of compliance
with CFATS.5 The DHS considers each chemical in the context of three threats: release; theft or
diversion; and sabotage and contamination. Chemical facilities with greater than specified
quantities of potentially dangerous chemicals must submit information to DHS, so that DHS can
determine the facility’s risk status. The statute exempts several types of facilities from this
requirement: facilities defined as a water system or wastewater treatment works; facilities owned
or operated by the Department of Defense or Department of Energy; facilities regulated by the
Nuclear Regulatory Commission; and those facilities regulated under the Maritime Transportation
Security Act of 2002 (P.L. 107-295).
Based on the submitted information, DHS determines the risk associated with each facility.
Facilities DHS deems high risk must meet CFATS requirements. The DHS assigns high-risk
facilities into one of four risk-based tiers. The statute mandated that DHS establish performance-
based security requirements.6 The DHS created graduated performance-based requirements for
facilities assigned to each risk-based tier. Facilities in higher risk tiers must meet more stringent
performance-based requirements.
All high-risk facilities must assess their vulnerabilities, develop an effective security plan, submit
these documents to DHS, and implement their security plan.7 The vulnerability assessment serves
two purposes under the interim final rule. One is to determine or confirm the placement of the
facility in a risk-based tier. The other is to provide a baseline against which to evaluate the site
security plan activities.
(...continued)
comments. 71 Federal Register 78276-78332 (December 28, 2006).
5 72 Federal Register 65396-65435 (November 20, 2007).
6 According to the White House Office of Management and Budget, a performance standard is a standard
that states requirements in terms of required results with criteria for verifying compliance but
without stating the methods for achieving required results. A performance standard may define the
functional requirements for the item, operational requirements, and/or interface and
interchangeability characteristics. A performance standard may be viewed in juxtaposition to a
prescriptive standard which may specify design requirements, such as materials to be used, how a
requirement is to be achieved, or how an item is to be fabricated or constructed.
Office of Management and Budget, The White House, “Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities,” Circular A-119, February 10, 1998. For example, a
performance standard might require that a facility perimeter be secured, while a prescriptive standard might dictate the
height and type of fence to be used to secure the perimeter.
7 High-risk facilities may develop vulnerability assessments and site security plans using alternative security programs
so long as they meet the tiered, performance-based requirements of the interim final rule.
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The site security plans must address the vulnerability assessment by describing how activities in
the plan correspond to securing facility vulnerabilities. Additionally, the site security plan must
address preparations for and deterrents against specific modes of potential terrorist attack, as
applicable and identified by DHS. The site security plans must also describe how the activities
taken by the facility meet the risk-based performance standards provided by DHS.
The DHS must review and approve the submitted documents, audit and inspect chemical
facilities, and determine regulatory compliance. The DHS may disapprove submitted
vulnerability assessments or site security plans that fail to meet DHS standards. The DHS may
not disapprove an assessment or plan because of the presence or absence of a specific security
measure. In the case of disapproval, DHS must identify in writing those areas of the assessment
and/or plan that need improvement. Owners or operators of chemical facilities may appeal such
decisions to DHS.
Similarly, if, after inspecting a chemical facility, DHS finds a facility not in compliance, the
Secretary must write to the facility explaining the deficiencies found, provide an opportunity for
the facility to consult with DHS, and issue an order to the facility to comply by a specified date. If
the facility continues to be out of compliance, DHS may fine and, eventually, order the facility to
cease operation. The interim final rule establishes the process by which chemical facilities can
appeal DHS decisions and rulings, but the statute prohibits third-party suits for enforcement
purposes.
The interim final rule creates a category of information exempted from disclosure under the
Freedom of Information Act (FOIA) and comparable state and local laws. The DHS named this
category of information “Chemical-terrorism Vulnerability Information” (CVI). This category
exempts information generated under the interim final rule, as well as any information developed
for chemical facility security purposes identified by the Secretary. In accordance with statute,
judicial and administrative proceedings shall treat CVI as classified information. The DHS asserts
sole discretion regarding who will be eligible to receive CVI. Disclosure of CVI may be
punishable by fine.
The interim final rule states it preempts state and local regulation that “conflicts with, hinders,
poses an obstacle to or frustrates the purposes of” the federal regulation. States, localities, or
affected companies may request a decision from DHS regarding potential conflict between the
regulations. Since DHS promulgated the interim final rule, Congress amended P.L. 109-295,
Section 550, to state that such preemption will occur only in the case of an “actual conflict.”8 The
DHS has not issued revised regulations addressing this change in statute.
Implementation
Within DHS, the National Protection and Programs Directorate (NPPD) is responsible for
chemical facility security regulations. The NPPD generally attempts to reduce the risks to the
homeland and has various offices addressing both physical and virtual threats. Within NPPD, the
Office of Infrastructure Protection, through its Infrastructure Security Compliance Division,
oversees the CFATS program.9 As seen in Table 1, requested and appropriated funding for this
8 P.L. 110-161, the Consolidated Appropriations Act, 2008, Section 534.
9 The budget request for the Infrastructure Security Compliance Project contains the funding and personnel allocations
(continued...)
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program has generally increased since its creation. Additionally, full-time equivalent staffing for
this program has also generally increased. This increase in staffing reflects, in part, the
development of a cadre of CFATS inspectors, based in regional offices.
Table 1. DHS Funding for Chemical Facility Security Regulation by Fiscal Year
Request
Appropriation
Full-time
Fiscal Year
($ in millions)
($ in millions)
Equivalents
FY2007 10
22a 0
FY2008 25
50
21
FY2009 63
78b 78
FY2010 103c 103d 246
FY2011 105e 96f 257
FY2012 99g
242
Source: Department of Homeland Security, Preparedness Directorate, Infrastructure Protection and
Information Security, FY2007 Congressional Justification; Department of Homeland Security, National Protection
and Programs Directorate, Infrastructure Protection and Information Security, Fiscal Year 2008 Congressional
Justification; Department of Homeland Security, National Protection and Programs Directorate, Infrastructure
Protection and Information Security, Fiscal Year 2009 Congressional Justification; Department of Homeland
Security, National Protection and Programs Directorate, Infrastructure Protection and Information Security,
Fiscal Year 2010 Congressional Justification; Department of Homeland Security, National Protection and Programs
Directorate, Infrastructure Protection and Information Security, Fiscal Year 2011 Overview Congressional
Justification; Department of Homeland Security, National Protection and Programs Directorate, Infrastructure
Protection and Information Security, Fiscal Year 2012 Congressional Justification; H.Rept. 109-699; P.L. 110-28; the
explanatory statement for P.L. 110-161 at Congressional Record, December 17, 2007, p. H16092; the explanatory
statement for P.L. 110-329 at Congressional Record, September 24, 2008, pp. H9806-H9807; H.Rept. 111-298; P.L.
111-242, as amended; and P.L. 112-10.
Notes: Funding levels rounded to nearest million. A full-time equivalent equals one staff person working a full-
time work schedule for one year.
a. Including funds provided in supplemental appropriations (P.L. 110-28).
b. Of this amount appropriated for the Infrastructure Security Compliance Project, $5 million were designated
for activities related to the development of ammonium nitrate regulations.
c. Of this amount requested for the Infrastructure Security Compliance Project, $14 million were designated
for activities related to the development of ammonium nitrate regulations.
d. Of this amount appropriated for the Infrastructure Security Compliance Project, $14 million were
designated for activities related to the development of ammonium nitrate regulations.
e. The DHS planned to use an unspecified amount of the requested funds to regulate ammonium nitrate sale
and transfer.
f.
P.L. 112-10 provided $838,763,112 in FY2011 appropriations for the National Protection and Programs
Directorate Infrastructure Protection and Information Security appropriations account. It does not specify a
level for chemical facility security regulation. The DHS determined the distribution of funding for programs
within the account. The DHS uses an unspecified amount of these funds to regulate ammonium nitrate sale
and transfer.
g. The DHS plans to use an unspecified amount of the requested funds to regulate ammonium nitrate sale and
transfer.
(...continued)
for implementing the CFATS regulations.
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The DHS received statutory authority to regulate chemical facilities in 2006. It did not possess a
chemical facility security office or inspector cadre at that time. The DHS requested additional
positions to create an inspector cadre and is still in the process of hiring. As of February 2011,
DHS had hired 109 inspectors.10
Chemical inspectors must be able to assess the security measures at a chemical facility using the
performance-based criteria developed by DHS. Performance-based security measures are likely
more difficult than prescriptive measures for chemical inspectors to assess and thus require
greater training and experience in the inspector cadre. In order to overcome this challenge, DHS
has established a Basic Inspector School training program for its inspector cadre. Such training,
while likely improving the quality of inspection, also introduces additional time between the
hiring of new inspectors and their deployment in the field.
As of September 2011, more than 38,000 chemical facilities had registered with DHS and
completed the Top-Screen process, the process by which DHS determines whether a facility is
high-risk based on a facility’s initial submission of information. Of these facilities, DHS
considered more than 7,000 as preliminarily high-risk and required to submit a site vulnerability
assessment.11 From the submitted site vulnerability assessments, DHS identified and placed 4,569
facilities into preliminary or final risk tiers. Table 2 identifies by risk tier the universe of high-risk
facilities, with Tier 1 those of highest risk.
Table 2. Facilities Regulated by DHS under CFATS
Risk
Facilities with
Facilities Awaiting Final
Total Facilities
Tier
Regulated Final Tier Decision
Tier Decision
1 99
3
102
2 502
37
539
3 1,155
135
1290
4 2,195
443
2,638
Total 3,951
618
4,569
Source: Personal communication with Department of Homeland Security, September 15, 2011. See also,
AcuTech Consulting Group, A Survey of CFATS Progress in Securing the Chemical Sector, September 6, 2011.
Notes: DHS has preliminarily assigned some facilities to a risk tier. Final assignment to a risk tier occurs after
final review of submitted vulnerability assessments. In June 2011, DHS reassigned approximately 500 facilities
from their risk tier to a lower risk tier.
In June 2011, DHS identified an anomaly in one of the risk-assessment tools used by DHS to
determine a facility’s risk tier.12 Subsequent review of this risk-assessment tool resulted in DHS
10 Oral testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of
Homeland Security, before the House Homeland Security Committee, Subcommittee on Cybersecurity, Infrastructure
Protection, and Security Technologies, February 11, 2011. As of July 2010, DHS had hired 88 field personnel,
including 11 regional commanders. Office of Infrastructure Protection, National Protection and Programs Directorate,
Department of Homeland Security, Update on Implementation of the Chemical Facility Anti-Terrorism Standards and
Development of Ammonium Nitrate Regulations-2010 Chemical Sector Coordinating Council Security Summit, July 7,
2010.
11 Infrastructure Security Compliance Division, Office of Infrastructure Protection, National Protection and Programs
Directorate, Department of Homeland Security, Chemical Facility Anti-Terrorism Standards, January 27, 2011.
12 Department of Homeland Security, “DHS Notifies Chemical Facilities of Revised Tiering Assignments,” July 5,
(continued...)
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reassigning approximately 500 facilities from their risk tier to a lower risk tier.13 The DHS
lowered the number of facilities allocated to the highest-risk tier from 211 to 102, a greater than
50% reduction.14 In some cases, DHS determined that regulated facilities no longer qualified as a
high-risk facility and thus did not receive a risk tier.
The total number of chemical facilities assigned a risk tier by DHS has declined since the CFATS
program began. Several factors may have contributed to this decline, including erroneous filing
by regulated entities, process changes on the part of regulated entities, and business operations
and decisions. The DHS has also engaged in targeted outreach activities to identify those facilities
that fall under the regulation but have not yet complied by filing required information.
The DHS planned to begin inspections of Tier 1 facilities as quickly as 14 months after issuance
of regulations.15 A series of factors has delayed inspections, including the release of additional
regulatory information in the form of an appendix and the need to build an inspector cadre, to
establish a regional infrastructure, and to perform pre-authorization inspections at facilities. DHS
officials provided a series of timeframes for beginning inspections.16 The DHS began inspections
of Tier 1 facilities in February 2010.17 Although the DHS testified that they planned to inspect all
Tier 1 facilities by the end of calendar year 2010,18 DHS had only performed nine authorization
inspections as of September 2011.19 The DHS states that it expects to inspect all Tier 1 facilities
(...continued)
2011, http://www.dhs.gov/files/programs/cfats-revised-tiering-assignments.shtm.
13 Society of Chemical Manufacturers and Affiliates, “DHS Provides latest on CFATS and Tiering at Chemical Sector
Security Summit,” http://www.socma.com/tags/printerFriendly.cfm?pageid=3109.
14 CRS analysis of Department of Homeland Security data from Infrastructure Security Compliance Division, Office of
Infrastructure Protection, National Protection and Programs Directorate, Department of Homeland Security, Chemical
Facility Anti-Terrorism Standards, January 27, 2011; Personal communication with Department of Homeland Security,
September 15, 2011; and AcuTech Consulting Group, A Survey of CFATS Progress in Securing the Chemical Sector,
September 6, 2011.
15 Department of Homeland Security, Chemical Facility Anti-Terrorism Standards Interim Final Rule Regulatory
Assessment, DHS-2006-0073, April 1, 2007, p. 15.
16 In July 2007, DHS provided testimony that formal site inspections of a selected group of facilities would begin by
the end of the calendar year (Testimony of Robert B. Stephan, Assistant Secretary for Infrastructure Protection,
National Protection and Programs Directorate, Department of Homeland Security, before the House Committee on
Homeland Security, Subcommittee on Transportation Security and Infrastructure, July 24, 2007). In December 2007,
DHS provided testimony that facility inspection would begin in fall of 2008 (Testimony of Robert B. Stephan,
Assistant Secretary for Infrastructure Protection, National Protection and Programs Directorate, Department of
Homeland Security, before the House Committee on Homeland Security, Subcommittee on Transportation Security and
Infrastructure, December 13, 2007). In 2009, DHS provided testimony that inspections would begin in the first quarter
of FY2010 (Testimony of Philip Reitinger, Deputy Under Secretary, National Protection and Programs Directorate,
Department of Homeland Security, before the House Committee on Homeland Security, June 16, 2009). The DHS now
states that it expects to inspect all Tier 1 facilities by the end of calendar year 2011 (Oral testimony of Rand Beers,
Under Secretary, National Protection and Programs Directorate, Department of Homeland Security, before the House
Homeland Security Committee, Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies,
February 11, 2011).
17 Testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of Homeland
Security, before the Senate Committee on Homeland Security and Governmental Affairs, March 3, 2010.
18 Oral testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of
Homeland Security, before the Senate Committee on Homeland Security and Governmental Affairs, March 3, 2010.
19 Personal communication with Department of Homeland Security, September 15, 2011.
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by the end of calendar year 2011. The DHS has not approved the implementation of any site
security plan.20
The DHS identified an additional factor in the delay of the inspection schedule: the necessary
iteration between DHS and the regulated entity regarding its site security plan.21 The DHS has
issued 66 administrative orders to compel facilities to complete their site security plans.22 In
addition, DHS established a pre-authorization inspection process to gain additional information
from facilities in order to fully assess the submitted site security plan. Once DHS completes a
pre-authorization inspection at a facility, the facility may amend its site security plan to reflect the
results of the pre-authorization inspection. The DHS has performed 180 pre-authorization
inspections to date.23
Policy Issues
Previous congressional discussion on chemical facility security raised several contentious policy
issues.24 Some issues, such as whether DHS has sufficient funds to adequately oversee chemical
facility security; whether federal chemical facility security regulations should preempt state
regulations; and how much chemical security information individuals may share outside of the
facility and the federal government, will exist even if Congress extends the existing statutory
authority. Other issues, such as what facilities DHS should regulate as a chemical facility and
whether DHS should require chemical facilities to adopt or consider adopting inherently safer
technologies, may be more likely addressed if Congress chooses to revise or expand existing
authority.
Adequacy of Funds
The regulation establishes an oversight structure that relies on DHS personnel inspecting
chemical facilities and ascertaining whether regulated entities have implemented their approved
site security plans. Although the use of performance-based measures, where chemical facilities
have flexibility in how to achieve the required security performance, may reduce some demands
on the regulated entities, it may also require greater training and judgment on the part of DHS
inspectors. Inspecting the regulated facilities likely will be costly. Congressional oversight has
raised the question of whether DHS has requested and received appropriated funds sufficient to
hire and retain the staff necessary to perform the required compliance inspections.25
20 Oral testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of
Homeland Security, before the House Homeland Security Committee, Subcommittee on Cybersecurity, Infrastructure
Protection, and Security Technologies, February 11, 2011.
21 The DHS identified such iteration on the contents of site security plans as one factor delaying the start of the
inspection process from December 2009 to February 2010. Oral testimony of Rand Beers, Under Secretary, National
Protection and Programs Directorate, Department of Homeland Security, before the Senate Committee on Homeland
Security and Governmental Affairs, March 3, 2010.
22 Testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of Homeland
Security, before the House Committee on Energy and Commerce, Subcommittee on Environment and the Economy,
March 31, 2011.
23 Personal communication with Department of Homeland Security, September 15, 2011.
24 Congressional policymakers have debated chemical facility security issues since at least the 106th Congress.
25 House Committee on Homeland Security, Subcommittee on Transportation Security and Infrastructure Protection,
(continued...)
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The DHS may face challenges when creating the necessary infrastructure to perform nationwide
inspections. As stated by DHS when describing its efforts to hire, train, and deploy an inspector
cadre and support staff:
Infrastructure Security Inspectors, located in up to 10 primary field offices across the Nation,
will inspect and ensure regulatory compliance at facilities covered by the CFATS regulation,
including site security plan approval and maintaining respective inspection and audit
schedule. Creating a fully functional cadre will require not just recruiting and training staff,
but also procurement of communications and [information technology] equipment (laptops,
blackberries, etc.) to facilitate work efforts while conducting inspections and traveling, but
also the acquisition of office space and equipment, government vehicles, support staff, safety
equipment and clothing, and support for frequent travel.26
The degree to which funds meet agency needs likely depends on factors external and internal to
DHS. External factors include the number of regulated facilities and the sufficiency of security
plan implementation. Internal factors include the ratio between headquarters staff and field
inspectors; the risk tiers of the regulated facilities; and the timetable for implementation of
inspections. Once the DHS determines the number of regulated facilities and their associated
timetables, DHS may be able to more comprehensively determine its resource needs.27 Now that
DHS has begun implementation of these requirements, it may be able to provide further estimates
of both funding and staff requirements.
Rate of Inspection
As of February 2011, no chemical facilities have completed the CFATS process, which starts with
information submission by chemical facilities and finishes with inspection and approval of
security measures by DHS.28 Some policymakers have expressed surprise at the pace of
inspection and questioned whether DHS should continue at the current pace or accelerate the
compliance process.29 Several factors likely complicate the inspection process and lead to delays
in inspection. A primary factor appears to be that the information facilities submit in site security
plans does not provide what DHS views as necessary detail to evaluate compliance.30 Rather than
reject these site security plans, DHS has implemented an additional inspection function, a pre-
authorization inspection, to allow DHS to gather the necessary information from regulated
facilities.
(...continued)
Chemical Security: The Implementation of the Chemical Facility Anti-Terrorism Standards and the Road Ahead, 110th
Congress, December 12, 2007.
26 Department of Homeland Security, National Protection and Programs Directorate, Infrastructure Protection and
Information Security, Fiscal Year 2009 Congressional Justification, p. IPIS-41.
27 Congress required DHS in FY2006 and FY2007 to report on the resources needed to create and implement
mandatory security requirements. See P.L. 109-295, Department of Homeland Security Appropriations Act, 2007, and
H.Rept. 109-241, accompanying P.L. 109-90, Department of Homeland Security Appropriations Act, 2006.
28 Oral testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of
Homeland Security, before the House Homeland Security Committee, Subcommittee on Cybersecurity, Infrastructure
Protection, and Security Technologies, February 11, 2011.
29 Monica Hatcher, “Why Chemical Plants Are Vulnerable to Terrorism,” Houston Chronicle, April 5, 2010.
30 For example, see Department of Homeland Security, Chemical Facility Anti-Terrorism Standards Site Security Plans
and Preliminary Inspections, NASTTPO Annual Meeting, May 12, 2010; and W. Koch, Air Products, Overview of DHS
CFATS Pre Authorization Visit, July 7, 2010.
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While pre-authorization inspections may lead to higher quality site security plan submissions,
they appear to be a significant drain on DHS resources. The DHS cites it has performed 180 pre-
authorization inspections but only nine authorization inspections.31 In principle, such pre-
authorization inspections may lower the future authorization inspection burden, as CFATS
inspectors will be familiar with security measures at the chemical facility. Such familiarity may
hasten the actual authorization inspection.
The DHS has also suggested that pre-authorization inspections are most necessary at higher risk
tier facilities, due to the complexity of the facility, the potential presence of multiple chemicals of
interest, and the more stringent risk-based performance standards that apply. Lower-risk-tier
facilities may not need pre-authorization inspections both because of their comparative simplicity
and because inspectors may develop best practices through the pre-authorization inspections of
higher-tiered facilities.
In contrast, some policymakers have questioned whether the low inspection rate is due to
constraints in the number of chemical facility security inspectors hired by DHS or the availability
of appropriated funding. The CFATS regulation states that DHS will inspect the implementation
of site security plans at all facilities and requires that facilities resubmit their site security plan
every two years for Tier 1 and Tier 2 facilities or three years for Tier 3 and Tier 4 facilities.32 This
requires DHS to perform approximately 1,700 inspections annually in order to inspect each
facility’s implementation of its site security plan. The DHS has asserted that inspections require
two or more inspectors and approximately one week to perform.33
The DHS appears to have requested sufficient inspectors to manage the workload associated with
a reinspection cycle of every two years for top tier facilities and every three years for lower-tier
facilities, but such a staffing level may be insufficient to address the large number of initial
regulatory submissions.34 This level of staffing would appear to require approximately a full cycle
of inspections to reduce the backlog created from the initial site security plan submissions. If
DHS were to hire additional inspectors, it might reduce the backlog of site security plans but also
run the risk of having additional unnecessary staff in future years. The DHS might hire temporary
or short-term staff to augment the inspector cadre, but the need to train such employees for
CFATS-specific inspections may pose challenges.
Finally, because DHS has focused on inspecting those facilities in the highest risk tier, it
potentially faces the most complicated inspection environments. Inspections of lower risk tier
facilities may pose fewer complications, take less time, and involve fewer inspectors. If so, DHS
might quickly and substantially increase the number of facilities inspected by focusing efforts on
lower-tier facilities. Through this approach, DHS might gain insight and experience among the
inspector cadre while reducing some national risk.35
31 Personal communication with Department of Homeland Security, September 15, 2011.
32 The DHS also states that it plans to inspect compliance at Tier 1 facilities annually (Department of Homeland
Security, National Protection and Programs Directorate, Infrastructure Protection and Information Security, Fiscal Year
2012 Congressional Justification, p. 26).
33 Department of Homeland Security, The Chemical Facility Anti-Terrorism Standards—Update for the Chemical
Sector Security Summit, June 29, 2009.
34 CRS calculation assuming two inspectors per inspection and one inspection per week.
35 It should be noted that all facilities regulated under CFATS are by definition high-risk chemical facilities and that a
lower or higher risk tier is relative to other high-risk chemical facilities.
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Federal Preemption of State Activities
The original statute did not expressly address the issue of federal preemption of state and local
chemical facility security statute or regulation. When DHS issued regulations establishing the
CFATS program, DHS asserted that the CFATS regulations would preempt state and local
chemical facility security statute or regulation that conflicted with, hindered, posed an obstacle, or
frustrated the purposes of the federal regulation.36 Subsequent to the release of the regulation,
Congress amended DHS’s statutory authority to state that only in the case of an “actual conflict”
would the federal regulation preempt state authority.37 Few states have established independent
chemical facility security regulatory programs, and conflict between the federal and state
activities has not yet occurred.38 The DHS did not identify any state programs that conflict with
the CFATS regulations.39 The DHS has also not altered its regulatory language in response to the
statutory amendment.
Advocates for federal preemption call for a uniform security framework across the nation. They
assert that a “patchwork” of regulations might develop if states independently develop additional
chemical facility security regulations.40 Variances in security requirements might lead to differing
regulatory compliance costs, and companies might suffer competitive disadvantage based on their
geographic location.
Supporters of state rights to regulate chemical facility security claim that the federal regulation
should be a minimum standard with which all regulated entities must comply. They assert that
DHS should allow states to develop more stringent regulations than the federal regulations. They
claim such regulations would increase security. Some supporters of state regulation suggest that
more stringent, conflicting state regulations should preempt the federal regulations.41 Such a case
might occur if a state regulation mandated the use of a particular security approach at chemical
facilities, conflicting with the federal regulation that adopts a performance-based, rather than
prescriptive, approach. The desire to retain industries that might relocate faced with increased
regulation arguably would temper state inclinations to require overly stringent or incompatible
regulations.
Some policymakers may assert that chemical facility security should be left to the states rather
than be implemented as a federal regulation. If Congress allows the statutory authority to expire
36 72 Federal Register 17688–17745 (April 9, 2007) at 17739.
37 Section 534, P.L. 110-161, Consolidated Appropriations Act, 2008.
38 Several states, including New Jersey, Maryland, and New York, have implemented laws addressing security at
chemical facilities.
39 72 Federal Register 17688–17745 (April 9, 2007) at 17727.
40 See, for example, National Association of Chemical Distributors, “NACD Key Issue: Chemical Facility Security,”
Key Issues 2009 Washington Fly-In 111th Congress.
41 For example, in the 111th Congress, Representative Rothman asked Secretary of Homeland Security Napolitano,
And in particular, there was language enacted in 2008 which said that the states could have their
own regulations with regard to securing chemical plant facilities unless there was a conflict with
the federal requirements. Might it be time to revisit that language to allow each state to have its
own chemical plant security regulations, even stricter than a national minimum standard, even if
they conflict?
(“House Appropriations Subcommittee on Homeland Security Holds Hearing on the Department of Homeland
Security,” CQ Congressional Transcripts, May 12, 2009.)
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and does not appropriate funds for the further implementation of CFATS, the authority would
lapse and states would again be responsible for regulating chemical facility security.
Transparency of Process
The CFATS process involves determining chemical facility vulnerabilities and developing
security plans to address them. Information developed in this process is not to be widely or
openly disseminated. The CFATS program categorizes this information as CVI and provides
penalties for its disclosure. Some advocates have argued for greater transparency in the CFATS
process, even if the program does not provide detailed information regarding potential
vulnerabilities and specific security measures. They assert that those individuals living in
surrounding communities require such non-detailed information to plan effectively and make
choices in an emergency.42
The current statute and regulation prohibit public disclosure of security-related information. Only
specific “covered persons” may access CVI. While acknowledging a legitimate homeland
security need to limit dissemination of security information, some policymakers have questioned
whether such limitations hinder other efforts. For example, first responders and community
representatives have highlighted how such information protection regimes may impede
emergency response and the ability of those in the surrounding community to react to emergency
situations at the chemical facility.43 Additionally, worker representatives have raised concerns that
these limitations and the lack of mandated inclusion of worker representatives may impede
worker input into security plans.44
The current information protection regimes for chemical facility security information, CVI under
CFATS and Sensitive Security Information (SSI) under the Maritime Transportation Security Act
(MTSA), do not contain penalties for incorrectly marking information as protected. Only
disclosure of correctly marked information is penalized. Additionally, the chemical facility is
responsible for identifying and appropriately marking protected information. These information
markings only would be assessed in the case of dispute. As was asserted during congressional
oversight, this disparity may lead to a tendency by regulated entities, in order to protect
themselves against potential liability or scrutiny, to erroneously limit dissemination of
information that should be made available to the public.45
Congressional investigation indicated that documents related to a 2007 explosion at a Bayer
CropScience chemical facility in West Virginia were incorrectly labeled as protected from
disclosure.46 The DHS regulated this chemical facility under MTSA, not CFATS.47 In this case,
42 OMB Watch and Public Citizen, “Chemical Facility Anti-Terrorism Standards, Department of Homeland Security,
DHS-2006-0073,” Letter, February 7, 2007.
43 Testimony of Joseph Crawford, Chief of Police, City Saint Albans, West Virginia, before the House Committee on
Energy and Commerce, Subcommittee on Oversight and Investigations, April 21, 2009; and testimony of Kent Carper,
President, Kanawha County Commission, Kanawha County, West Virginia, before the House Committee on Energy
and Commerce, Subcommittee on Oversight and Investigations, April 21, 2009.
44 See, for example, testimony of Glenn Erwin, United Steelworkers International Union, before the Senate Committee
on Homeland Security and Governmental Affairs, July 13, 2005.
45 “House Energy and Commerce Subcommittee on Oversight and Investigations Holds Hearing on the Bayer
CropScience Facility Explosion,” CQ Congressional Transcripts, April 21, 2009.
46 For example, see “House Energy and Commerce Subcommittee on Oversight and Investigations Holds Hearing on
the Bayer CropScience Facility Explosion,” CQ Congressional Transcripts, April 21, 2009.
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security information was protected from disclosure as SSI, an information protection regime
similar to CVI. Company officials broadly applied SSI markings to facility documents partly in
hopes of avoiding a public debate on the use and storage of particular chemicals at the facility.48
This revelation led to questions regarding the application and oversight of such protective
markings.
Additionally, the existing statute contains no provisions explicitly protecting or allowing for
concerned covered persons to divulge CVI or to challenge the categorization of information as
protected in an attempt to inform authorities about security vulnerabilities or other weaknesses.
Depending on the circumstances, those individuals might be penalized for their disclosure of
protected information. The CFATS regulations, reflecting this inherent tension, provide for a point
of contact to which such information might be revealed, but also state “Section 550 did not give
DHS authority to provide whistleblower protection, and so DHS has not incorporated specific
whistleblower protections into this regulation.”49
Definition of Chemical Facility
The DHS regulates both entities that possess and entities that manufacture chemicals of interest.
Thus, the term chemical facility encompasses many types of facilities, including agricultural
facilities, universities, and others. With DHS defining chemical facilities according to possession
of a substance of concern, facilities not part of the chemical manufacturing and distributing chain
have become regulated facilities. Stakeholders have expressed concern that the number of entities
so regulated might be unwieldy and that the regulatory program might focus on many chemical
facilities that pose little risk rather than on those facilities that pose more substantial risk. For
example, during the rulemaking process, DHS received commentary and revised its regulatory
threshold for possession of propane, stating:
DHS, however, set the [screening threshold quantities] for propane in this final rule at 60,000
pounds. Sixty thousand pounds is the estimated maximum amount of propane that non-
industrial propane customers, such as restaurants and farmers, typically use. The Department
believes that non-industrial users, especially those in rural areas, do not have the potential to
create a significant risk to human life or health as would industrial users. The Department
has elected, at this time, to focus efforts on large commercial propane establishments but
may, after providing the public with an opportunity for notice and comment, extend its
[CFATS] screening efforts to smaller facilities in the future. This higher [screening threshold
quantity] will focus DHS’s security screening effort on industrial and major consumers,
regional suppliers, bulk retail, and storage sites and away from non-industrial propane
customers.50
Similarly, academic institutions have asserted that DHS should not apply CFATS regulations to
them because of the dispersed nature of chemical holdings at colleges and universities. These
(...continued)
47 The DHS regulates for security purposes chemical facilities located in ports under the Maritime Transportation
Security Act of 2002 (P.L. 107-295). The chemical facility security statute exempts chemical facilities regulated under
MTSA.
48 Testimony of William B. Buckner, President and Chief Executive Officer of Bayer CropScience, before the House
Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, April 21, 2009.
49 72 Federal Register 17688–17745 (April 9, 2007) at 17718.
50 72 Federal Register 65396–65435 (November 20, 2007) at 65406.
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institutions claim that regulatory compliance costs would not be commensurate with the risk
reduction.51 While the regulatory compliance costs likely decrease at lower-risk tiers compared to
higher-risk tiers, all regulated entities bear compliance costs as continued annual expenses.
As mentioned above, the statutory authority underlying CFATS exempts several types of
facilities, including water and wastewater treatment facilities. The federal government does not
regulate water and wastewater treatment facilities for chemical security purposes. Instead, current
chemical security efforts at water and wastewater treatment facilities are voluntary in nature.52
Some advocacy groups have called for inclusion of currently exempt facilities, such as water and
wastewater treatment facilities.53 Some drinking water and wastewater treatment facilities possess
large amounts of potentially hazardous chemicals, such as chlorine, for purposes such as
disinfection.54 Advocates for their inclusion in security regulations cite the presence of such
potentially hazardous chemicals and their relative proximity to population centers as reasons to
mandate security measures for such facilities. In contrast, representatives of the water sector point
to the critical role that water and wastewater treatment facilities play in daily life. They caution
against including these facilities in the existing regulatory framework because of the potential for
undue public impacts. They cite, for example, loss of basic fire protection and sanitation services
if the federal government orders a water or wastewater utility to cease operations for security
reasons or failure to comply with regulation.55
If Congress were to remove the drinking water and wastewater treatment facility exemption, the
number of regulated facilities might substantially increase, placing additional burdens on the
CFATS program. The United States contains approximately 52,000 community water systems and
16,500 wastewater treatment facilities.56 These facilities vary substantially in size and service.
The number of regulated facilities would depend on the criteria used to determine inclusion, such
as chemical possession or number of individuals served. It is likely that only a subset of these
facilities would meet a regulatory threshold.57 A DHS official testified that approximately 6,000
facilities would likely meet the CFATS threshold.58
51 72 Federal Register 65396–65435 (November 20, 2007) at 65412.
52 Congress required certain drinking water facilities to perform vulnerability assessments and develop emergency
response plans through section 401 of P.L. 107-188, the Public Health Security and Bioterrorism Preparedness and
Response Act of 2002. For more information on drinking water security activities, see CRS Report RL31294,
Safeguarding the Nation’s Drinking Water: EPA and Congressional Actions, by Mary Tiemann.
53 See, for example, Paul Orum and Reece Rushing, Center for American Progress, Chemical Security 101: What You
Don’t Have Can’t Leak, or Be Blown Up by Terrorists, November 2008; and testimony of Philip J. Crowley, Senior
Fellow and Director of Homeland Security, Center for American Progress, before the House Committee on Energy and
Commerce, Subcommittee on Environment and Hazardous Materials, June 12, 2008.
54 See U.S. Environmental Protection Agency, Factoids: Drinking Water and Ground Water Statistics for 2008, EPA
816-K-08-004, November 2008; and U.S. Environmental Protection Agency, Clean Watersheds Needs Survey 2004:
Report to Congress, January 2008.
55 American Water Works Association, “Chemical Facility Security,” Fact Sheet, 2009, online at
http://www.awwa.org/files/GovtPublicAffairs/PDF/2009Security.pdf. For more information on security issues in the
water infrastructure sector, see CRS Report RL32189, Terrorism and Security Issues Facing the Water Infrastructure
Sector, by Claudia Copeland.
56 See U.S. Environmental Protection Agency, Factoids: Drinking Water and Ground Water Statistics for 2008, EPA
816-K-08-004, November 2008; and U.S. Environmental Protection Agency, Clean Watersheds Needs Survey 2004:
Report to Congress, January 2008. For comparison, more than 38,000 chemical facilities filed a Top-Screen under
CFATS.
57 For example, the number of individuals served by the drinking water facility might be used as a regulatory criterion.
Section 401 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188)
(continued...)
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Inherently Safer Technologies
Previous debate on chemical facility security has included whether to mandate the adoption or
consideration of changes in chemical processes to reduce the potential consequences following a
successful attack on a chemical facility. Suggestions for such changes have included reducing the
amount of chemical stored onsite and changing the chemicals used. In previous congressional
debate, these approaches have been referred to as inherently safer technologies or methods to
reduce the consequences of a terrorist attack.
A fundamental challenge for inherently safer technologies is how to compare one technology with
its potential replacement. It is challenging to unequivocally state that one technology is inherently
safer than the other without adequate metrics. Risk factors may exist outside of the comparison
framework.59 Some experts have asserted that the metrics for comparing industrial processes are
not yet fully established and need additional research and study.60 The National Academies have
recommended that DHS support research and development to foster cost-effective, inherently
safer chemistries and chemical processes.61 A facility might consider many additional factors
beyond homeland security implications when weighing the applicability and benefit of switching
from one process to another. These factors include cost, technical challenges regarding
implementation in specific situations, supply chain impacts, quality and availability of end
products, and indirect effects on workers.62
Supporters of adopting these approaches as a way to improve chemical facility security argue that
reducing or removing these chemicals from a facility will reduce the incentive to attack the
facility. They suggest that reducing the consequences of a release also lowers the threat from
terrorist attack and mitigates the risk to the surrounding populace. They point to facilities that
have voluntarily changed amounts of chemicals on hand or chemical processes in use as examples
that facilities can implement such an approach in a cost-effective, practical fashion.63
(...continued)
mandated drinking water facilities serving more than 3,300 individuals develop an emergency response plan and
perform a vulnerability assessment. Approximately 8,400 community water systems met this requirement at that time.
For more information on drinking water security activities, see CRS Report RL31294, Safeguarding the Nation’s
Drinking Water: EPA and Congressional Actions, by Mary Tiemann.
58 Oral testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of
Homeland Security, before the House Homeland Security Committee, Subcommittee on Cybersecurity, Infrastructure
Protection, and Security Technologies, February 11, 2011.
59 For example, the replacement of hydrogen fluoride with sulfuric acid for refinery processing would replace a more
toxic chemical with a less toxic one. In this case, experts estimate that equivalent processing capacity would require
twenty-five times more sulfuric acid. Thus, more chemical storage facilities and transportation would be required,
potentially posing different dangers than atmospheric release to the surrounding community. Determining which
chemical process had less overall risk might require considering factors both internal and external to the chemical
facility and the surrounding community. See testimony of M. Sam Mannan, Director, Mary Kay O’Connor Process
Safety Center, Texas A&M University, before the House Committee on Homeland Security, December 12, 2007.
60 Testimony of M. Sam Mannan, Director, Mary Kay O’Connor Process Safety Center, Texas A&M University,
before the House Committee on Homeland Security, December 12, 2007.
61 Committee on Assessing Vulnerabilities Related to the Nation’s Chemical Infrastructure, National Research Council,
Terrorism and the Chemical Infrastructure: Protecting People and Reducing Vulnerabilities, 2006.
62 For further discussion on this issue, see Center for Chemical Process Safety, American Institute of Chemical
Engineers, Final Report: Definition for Inherently Safer Technology in Production, Transportation, Storage, and Use,
July 2010.
63 See, for example, Paul Orum and Reece Rushing, Center for American Progress, Preventing Toxic Terrorism: How
(continued...)
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Opponents of mandating what proponents call inherently safer technologies question the validity
of the approach as a security tool and the government’s ability to effectively oversee its
implementation. Industrial entities assert that process safety engineers within the regulated
industry already employ such approaches and that these are safety, not security, methods. They
assert that process safety experts and business executives should determine the applicability and
financial practicality of changing existing processes at specific chemical facilities.64 One industry
survey stated that, of those respondents that assessed using alternative chemicals or processes,
66.4% determined such alternatives were not technically feasible.65 Opponents of an inherently
safer technology mandate also state concern that few existing alternative approaches are well
understood with regard to their unanticipated side effects. They claim that researchers should
continue to study these alternative approaches rather than immediately apply them, since
unanticipated side effects could injure business and other interests.66 A third opposing view
questions whether the federal government contains the required technical expertise to adjudicate
the practicality and benefit of alternative technological approaches. Holders of this view raise
concerns that the federal government may not possess the required knowledge or expertise to
judge whether a particular site can implement alternative technology, even if the alternative
theoretically provides benefits over existing technology.67
Some industry representatives have asserted that an inherently safer technology mandate might
have a potentially significant negative financial impact.68 Regulated entities incur a cost when
meeting existing CFATS requirements, and small businesses may be challenged to make
necessary capital investments. In its interim final rule, DHS estimated that CFATS “may have a
significant economic impact on a substantial number of small entities.”69 Because of the
performance-based nature of the regulatory requirement, it is difficult to detail the exact impact
(...continued)
Some Chemical Facilities are Removing Danger to American Communities, April 2006; and Paul Orum and Reece
Rushing, Center for American Progress, Chemical Security 101: What You Don’t Have Can’t Leak, or Be Blown Up by
Terrorists, November 2008.
64 See, for example, testimony of Timothy J. Scott, Dow Chemical Company, before the House Committee on
Homeland Security, Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies, February
11, 2011; and testimony of Marty Durbin, Managing Director, Federal Affairs, American Chemistry Council, before
the House Committee on Energy and Commerce, Subcommittee on Environment and Hazardous Materials, June 12,
2008.
65 AcuTech Consulting Group, A Survey of CFATS Progress in Securing the Chemical Sector, September 6, 2011, p.
41.
66 For example, EPA experts have pointed to the change by drinking water treatment facilities between two approved
disinfectants—chlorine and chloramine—as correlated with an unexpected increase in levels of lead in drinking water
due to increased corrosion. Government Accountability Office, Lead in D.C. Drinking Water, GAO-05-344, March
2005.
67 See, for example, testimony of M. Sam Mannan, Director, Mary Kay O’Connor Process Safety Center, Texas A&M
University, before the House Committee on Homeland Security, Subcommittee on Cybersecurity, Infrastructure
Protection, and Security Technologies, February 11, 2011; testimony of Dennis C. Hendershot, Staff Consultant, Center
for Chemical Process Safety, American Institute of Chemical Engineers, before the Senate Committee on Environment
and Public Works, June 21, 2006, S.Hrg. 109-1044; and testimony of Matthew Barmasse, Synthetic Organic Chemical
Manufacturers Association, before the Senate Committee on Homeland Security and Governmental Affairs, July 13,
2005.
68 Testimony of Stephen Poorman, International EHS Manager, FUJIFILM Imaging Colorants Ltd., on behalf of the
Society of Chemical Manufacturers and Affiliates before the Senate Committee on Homeland Security and
Governmental Affairs, March 3, 2010.
69 72 Federal Register 17688–17745 (April 9, 2007) at 17772.
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on small businesses.70 Adding an inherently safer technology requirement might increase the cost
of CFATS compliance and might disproportionately affect small entities not already incorporating
such activities in their business processes. Policymakers in previous Congresses highlighted the
issue of small business impact, especially in the context of requiring additional measures that
might hurt productivity.
Policy Options
The statutory authority for CFATS expires on October 4, 2011. The 112th Congress may address
chemical facility security through several options. Congress might extend further the existing
statutory authority by revising or repealing its sunset provision; codify the existing regulations;
amend the existing statutory authority; address existing programmatic activities; or restrict or
expand the scope of chemical facility security regulation.
If Congress does not act and allows the statutory authority to expire, the authority for the
application and enforcement of the CFATS regulations may be questioned. In the case where
Congress allows the statutory authority to expire, but Congress appropriates funds for enforcing
the CFATS program, DHS will likely be able to enforce the CFATS regulations. The Government
Accountability Office (GAO) has found that in the case where a program’s statutory authority
expires, but Congress explicitly appropriates funding for it, the program may continue to operate
without interruption.71 If Congress allows the statutory authority to expire and also does not
appropriate funding for implementing the CFATS program, the CFATS regulations will likely also
lapse. In this case, the states would likely become the primary source of any chemical facility
security regulation.
Maintain the Existing Regulatory Framework
The existing statutory authority places much of the CFATS regulatory framework at the discretion
of the Secretary of Homeland Security. The DHS is still in the process of implementing these
regulations and has not yet determined their efficacy. Congressional oversight of their
implementation, enforcement, and efficacy may play a key role in determining the sufficiency of
the existing authority and regulations. Congress might choose to maintain the existing regulations
by extending the statutory authority’s sunset date or codifying the existing regulations. Also, as
noted above, allowing the statutory authority to expire could in effect maintain the existing
regulatory framework if Congress continues to fund implementation, although this might lead to
litigation.
Extend the Sunset Date
Congressional policymakers might choose to extend the current statutory authority for a fixed or
indefinite time. In passing the 2010 DHS appropriations act (P.L. 111-83), Congress extended the
existing statutory authority one year to October 4, 2010, as requested by the Obama
70 Department of Homeland Security, Chemical Facility Anti-Terrorism Standards Interim Final Rule Regulatory
Assessment, DHS-2006-0073, April 1, 2007.
71 Office of the General Counsel, General Accounting Office, Principles of Federal Appropriations Law, Third Edition,
GAO-04-261SP, January, 2004, pp. 2-70–2-71.
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Administration.72 The Department of Defense and Full-Year Continuing Appropriations Act, 2011
(P.L. 112-10) extends the statutory authority through October 4, 2011. The Obama Administration
requested for FY2012 an extension of the statutory authority to October 4, 2013.73 Extending the
existing statutory authority may provide regulated entities continuity and protect them from
losing those resources already expended in regulatory compliance. An extension may allow
assessment of the efficacy of the existing regulations and inclusion of this information in any
future attempts to revise or extend DHS’s statutory authority. Moreover, since DHS is in the
process of implementing current regulations, some policymakers argue for a simple extension
without changing statutory requirements.
In addition to requesting a two-year extension of the statutory authority, the Obama
Administration also supports enacting a permanent statutory authority.74 Congress might make the
existing program permanent by removing the sunset date entirely. Some chemical manufacturers
support converting the existing program into a permanent program.75 The removal of the sunset
date would maintain the current discretion granted to the Secretary of Homeland Security to
develop regulations and might allow assessment of the efficacy of the existing regulations.
Making the existing statute permanent would provide consistency in authority and remove the
statutory pressure to reauthorize the program. The presence of a sunset date for the statutory
authority increases the likelihood of congressional attention to chemical facility security as a
legislative topic. Some advocates who wish for more regular congressional review of the statute
might oppose removing the sunset date.
Codify the Existing Regulations
Congressional policymakers might choose to affirm the existing regulations by codifying them or
their principles in statute. Such codification could reduce the discretion of the Secretary of
Homeland Security to alter the CFATS regulations in the future. The existing statutory authority
grants broad discretion to the Secretary to develop many elements of the CFATS regulations.
Future Secretaries may choose to alter its structure or approach and still comply with the existing
statute. Policymakers might identify specific components of the existing regulation that they wish
any future regulation to retain and codify those portions. Specifying these components might limit
the ability of the Secretary to react to changing circumstance, gained experience, and new
knowledge. On the other hand, the codified portions might enhance the regulated community’s
ability to plan for future expenses and requirements.
Alter the Existing Statutory Authority
Congressional policymakers might choose to alter the existing statutory authority to modify the
existing regulations, address stakeholder concerns, or broadly change the regulatory program.
72 Department of Homeland Security, FY2010 Budget Justification.
73 Office of Management and Budget, The White House, Budget of the United States Government, Fiscal Year 2012,
Appendix, p. 553.
74 Oral testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of
Homeland Security, before the House Homeland Security Committee, Subcommittee on Cybersecurity, Infrastructure
Protection, and Security Technologies, February 11, 2011.
75 Randy Dearth and Cal Dooley, “Commentary: Taking Chemical Plant Security In Pittsburgh Seriously,” Pittsburgh
Post-Gazette, May 27, 2009.
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Accelerate or Decelerate Compliance Activities
The DHS bases its schedule for facility CFATS compliance on the chemical facility’s assigned
risk tier. Those chemical facilities assigned to higher risk tiers have a more accelerated
compliance and resubmission schedule than those assigned to lower risk tiers. Congressional
policymakers might attempt to accelerate the compliance schedule by increasing funding
available to DHS for CFATS, thereby increasing the ability of DHS to provide feedback to
regulated entities, review submissions, and inspect facilities filing site security plans. Additional
funding might reduce or mitigate inefficiencies or delays related to DHS processing of
submissions.
Alternatively, policymakers might provide DHS with the authority to use third parties as CFATS
inspectors. The DHS could then augment the number of CFATS inspectors to meet increased
demand or delegate inspection authority to state and local governments. Third-party inspectors
might allow DHS to draw on expertise outside of the federal government in assessing the efficacy
of the implemented site security activities. The DHS may need to define the roles and
responsibilities of these inspectors and how DHS will assess and accredit their qualifications. The
DHS has stated its intent to issue a rulemaking regarding the use of third-party inspectors but has
not yet done so.76 The use of third-party inspectors might lead to concerns about equal treatment
of chemical facilities by different third-party inspectors, and questions about whether homeland
security inspections of this type are an inherently governmental responsibility that only federal
employees should perform.
Finally, Congress might determine that DHS has sufficient resources to accelerate compliance
activities but is restrained by some other procedural factor. Congressional policymakers might
direct DHS to streamline its review process, reduce the timeframe for response and interaction
with regulated entities, or otherwise enact process improvements.
Congressional policymakers might choose to slow the implementation schedule of the chemical
facility security regulations. Concern about the impact of the regulation on small businesses or
other entities might lead to a decelerated compliance schedule. The DHS has already
implemented select regulatory extensions for certain agricultural operations.77 Congressional
policymakers might direct DHS to provide longer submission, implementation, and resubmission
timelines for those regulated entities that might suffer disproportionate economic burdens from
compliance.
Incorporate Additional Facility Types
Policymakers might remove some or all of the statutory exclusions from the CFATS program. The
DHS and the Environmental Protection Agency (EPA) have called for additional authorities to
regulate water and wastewater treatment facilities:
The Department of Homeland Security and the Environmental Protection Agency believe
that there is an important gap in the framework for regulating the security of chemicals at
water and wastewater treatment facilities in the United States. The authority for regulating
the chemical industry purposefully excludes from its coverage water and wastewater
76 72 Federal Register 17688–17745 (April 9, 2007) at 17712.
77 73 Federal Register 1640 (January 9, 2008).
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treatment facilities. We need to work with the Congress to close this gap in the chemical
security authorities in order to secure chemicals of interest at these facilities and protect the
communities they serve. Water and wastewater treatment facilities that are determined to be
high-risk due to the presence of chemicals of interest should be regulated for security in a
manner that is consistent with the CFATS risk and performance-based framework while also
recognizing the unique public health and environmental requirements and responsibilities of
such facilities.78
The EPA has testified that the Obama Administration believes that EPA should be the lead agency
for chemical security for both drinking water and wastewater systems, with DHS supporting
EPA’s efforts.79 The EPA also supports providing states with an important role in regulating
chemical security at water systems, including determinations, auditing, and inspecting.80
In addition, DHS supports modifying the existing exemption for (1) MTSA facilities to increase
security at these facilities to the CFATS standard and (2) facilities regulated by the Nuclear
Regulatory Commission to clarify the scope of the exemption.81
If Congress provides the executive branch with statutory authority to regulate water and
wastewater treatment facilities for chemical security purposes, it may weigh several policy
decisions. Among these choices are which facilities should be regulated; how stringent such
security measures should be; what federal agency should oversee them; and whether compliance
with these security measures is practicable given the public nature of many water and wastewater
treatment facilities.
One option for congressional policymakers might be to include water and wastewater treatment
facilities under the existing CFATS regulations, effectively removing the exemption currently in
statute. This would place water and wastewater treatment facilities on par with other possessors
of chemicals of interest. The DHS would provide oversight of all regulated chemical facilities.82
Opponents might claim that activities under CFATS, such as vulnerability assessment, duplicate
existing requirements under the Safe Drinking Water Act.83 Also, opponents of such an approach
cite the essential role that water and wastewater treatment facilities play in daily life and assert
78 Testimony of Benjamin H. Grumbles, Assistant Administrator for Water, U.S. Environmental Protection Agency
before the House Committee on Energy and Commerce, Subcommittee on Environment and Hazardous Materials, June
12, 2008. See also testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate,
Department of Homeland Security, before the Senate Committee on Homeland Security and Governmental Affairs,
March 3, 2010.
79 Testimony of Peter S. Silva, Assistant Administrator for Water, Environmental Protection Agency, before the Senate
Committee on Homeland Security and Governmental Affairs, March 3, 2010.
80 Testimony of Peter S. Silva, Assistant Administrator for Water, Environmental Protection Agency, before the Senate
Committee on Homeland Security and Governmental Affairs, March 3, 2010.
81 Testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of Homeland
Security, before the Senate Committee on Homeland Security and Governmental Affairs, March 3, 2010. The DHS and
the Nuclear Regulatory Commission have developed a memorandum of agreement regarding security at chemical
facilities regulated by the Nuclear Regulatory Commission (Memorandum of Understanding between the U.S.
Department of Homeland Security and the U.S. Nuclear Regulatory Commission, March 31, 2011).
82 Those chemical facilities exempt from CFATS because they are regulated under MTSA are overseen by the Coast
Guard, which is part of DHS. The DHS testified that 365 facilities are fully exempt from CFATS regulation due to
compliance with MTSA, while 135 are partially exempt (“House Homeland Security Committee Holds Hearing on the
Chemical Facility Antiterrorism Act of 2009,” CQ Congressional Transcripts, June 16, 2009).
83 Section 1433 of the Safe Drinking Water Act as amended by section 401 of P.L. 107-188, the Public Health Security
and Bioterrorism Preparedness and Response Act of 2002.
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that several authorities available to DHS under CFATS, such as the ability to require a facility to
cease operations, are inappropriate if applied to a municipal utility.84
Another option might be to grant statutory authority to regulate water and wastewater treatment
facilities for security purposes to EPA or require DHS to consult with EPA regarding its
regulation of water and wastewater treatment facilities. Since water treatment facilities must
provide a vulnerability assessment to EPA, some facilities might view regulation under CFATS as
redundant in this context. Some industry representatives have expressed concern regarding the
effects of multiple agencies regulating security at drinking water and wastewater treatment
facilities.85 They assert that municipalities that operate both types of facilities might face
conflicting regulations and guidance if different agencies regulate drinking water and wastewater
treatment facilities. These stakeholders suggest that EPA retaining the lead for water and
wastewater facilities would be more efficient. Following prior debate on chemical facility
security, Congress provided statutory authority for chemical security to DHS. This separated DHS
security responsibilities from the public health and safety responsibilities given to EPA. Providing
one agency the authority to oversee safety and security operations may reduce the potential for
redundancy and other inefficiencies but also might increase stakeholder reluctance to voluntarily
consult on security issues.86
If policymakers assign responsibility for chemical facility security at different facilities to
different agencies, each agency affected will promulgate separate rules. These rules may be
similar or different depending on the agencies’ statutory authority, interpretation of that authority,
and ability of the regulated entities to comply as well as any interagency coordination that might
occur. Congress may wish to assess the areas where such facilities are similar and different in
order to provide authorities that meet any unique characteristics.
Any new regulation of drinking water and wastewater treatment facilities is likely to cause the
regulated entities, and potentially the federal government, to incur some costs. Representatives of
the water and wastewater sectors argue that local ratepayers will eventually bear the capital and
ongoing costs incurred due to increased security measures.87 Congressional policymakers may
wish to consider whether the regulated entities should bear these costs, as is done for other
regulated chemical facilities, and by those ratepayers they serve or by the taxpayers in general
through financial assistance to the regulated entities. Additionally, if inclusion of other facility
types significantly increases the number of regulated entities, DHS may require additional funds
to process regulatory submissions and perform required inspections.
84 Testimony of Brad Coffey, Association of Metropolitan Water Agencies, before the House Committee on Energy
and Commerce, Subcommittee on Environment and Hazardous Materials, June 12, 2008.
85 See, for example, American Water Works Association, “AWWA Members Urged to Contact Congress on Chemical
Security Bill,” and Association of Metropolitan Water Agencies, “Drinking Water Security and Treatment Mandates,”
Policy Resolution, October 2008.
86 Some agencies oversee both safety and security issues. For example, the U.S. Coast Guard has both safety and
security responsibilities for ports.
87 Testimony of Brad Coffey, Association of Metropolitan Water Agencies, before the House Committee on Energy
and Commerce, Subcommittee on Environment and Hazardous Materials, June 12, 2008.
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Harmonize Regulations
Other security provisions, such as MTSA, apply to some facilities exempt from the existing
chemical facility security regulations. The DHS supports modifying the existing exemption for
MTSA facilities to increase security at these facilities to the CFATS standard and modifying the
existing exemption for facilities regulated by the Nuclear Regulatory Commission to clarify the
scope of the exemption.88 The EPA has testified that the Obama Administration believes that DHS
should be responsible for ensuring consistency of high-risk chemical facility security across all
critical infrastructure sectors.89 If Congress modifies these exemptions, conflicts may arise
between requirements under chemical facility security regulations and these other provisions. One
approach to resolving these conflicts is to identify which statute would supersede the others,
providing a single statutory requirement. Critics of such an approach might assert that the
superseding statute does not contain all of the protections present in the other statutes. Another
approach might be to require agencies to generally harmonize the regulations implementing each
statute. Regulatory agencies might identify and determine the best ways to meet statutory
requirements while also limiting regulatory duplication or contradiction. Such harmonization
might reduce the regulatory burden on companies possessing facilities regulated under two
frameworks, such as MTSA and CFATS, by allowing a single security approach to the
regulations. The DHS has established a joint NPPD/U.S. Coast Guard working group to evaluate
and, where appropriate, implement methods to harmonize the CFATS and MTSA regulations.90 In
contrast, if the process of harmonization leads to a significant increase in security requirements,
the regulatory burden faced by industry might increase.
Consider Inherently Safer Technologies
Congressional policymakers may choose to address the issue of inherently safer technologies,
sometimes called methods to reduce the consequences of terrorist attack. One approach might be
to mandate the implementation of inherently safer technologies for a set of processes. Another
might be to mandate the consideration of implementation of inherently safer technologies with
certain criteria controlling whether implementation is required. A third approach might be to
mandate the development of a federal repository of inherently safer technology approaches and
consideration of chemical processes against those options listed in the repository. Stakeholders
might assess and review the viability of applying these inherently safer approaches at lower cost
if such information were centralized and freely available. Alternatively, policymakers might
establish an incentive-based structure outside of the chemical facility security mandate to
encourage the adoption of inherently safer technologies by regulated entities. Lastly,
congressional policymakers might choose to not require any consideration or adoption of
inherently safer technology approaches.
88 Testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of Homeland
Security, before the Senate Committee on Homeland Security and Governmental Affairs, March 3, 2010.
89 Testimony of Peter S. Silva, Assistant Administrator for Water, Environmental Protection Agency, before the Senate
Committee on Homeland Security and Governmental Affairs, March 3, 2010.
90 Testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of Homeland
Security, before the House Committee on Energy and Commerce, Subcommittee on Environment and the Economy,
March 31, 2011.
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The Obama Administration has given some support to the use of inherently safer technologies to
enhance security at high-risk chemical facilities. It has established a series of principles directing
its policy:
• The Administration supports consistency of inherently safer technology
approaches for facilities regardless of sector.
• The Administration believes that all high-risk chemical facilities, Tiers 1-4,
should assess [inherently safer technology] methods and report the assessment in
the facilities’ site security plans. Further, the appropriate regulatory entity should
have the authority to require facilities posing the highest degree of risk (Tiers 1
and 2) to implement inherently safer technology methods if such methods
demonstrably enhance overall security, are determined to be feasible, and, in the
case of water sector facilities, consider public health and environmental
requirements.
• For Tier 3 and 4 facilities, the appropriate regulatory entity should review the
inherently safer technology assessment contained in the site security plan. The
entity should be authorized to provide recommendations on implementing
inherently safer technologies, but it would not have the authority to require
facilities to implement the inherently safer technology methods.
• The Administration believes that flexibility and staggered implementation would
be required in implementing this new inherently safer technology policy.91
A congressional mandate for regulated entities to adopt or consider adopting inherently safer
technologies may lead regulated entities to consider factors such as homeland security impact in
their chemical process assessments. Some experts assert that existing chemical process safety
activities consider and assess inherently safer technology approaches though not necessarily in a
homeland security context.92 These assessments may lead to changes in chemical process when
deemed safer, more reliable, and cost-effective. The extent to which homeland security impact
has factored into these industry decisions is unknown, but DHS has identified cases where
chemical facilities have voluntarily modified chemical processes to lower their CFATS tier. An
additional complication to assessing inherently safer technology is the varying amounts and
quality of information available regarding industrial implementation of inherently safer
technologies. While some facilities have converted to processes generally deemed as inherently
safer, other facilities may not have sufficient information available to effectively assess the
impacts from changing existing processes to ones considered inherently safer.93 The differences
that exist among chemical facilities, in terms of chemical process, facility layout, and ability to
91 Testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of Homeland
Security, before the Senate Committee on Homeland Security and Governmental Affairs, March 3, 2010.
92 See, for example, testimony of Dennis C. Hendershot, Staff Consultant, Center for Chemical Process Safety,
American Institute of Chemical Engineers, before the Senate Committee on Environment and Public Works, June 21,
2006, S.Hrg. 109-1044.
93 The DHS Science and Technology (S&T) Directorate is engaged in a Chemical Infrastructure Risk Assessment
Project that, among other goals, will assess the potential for safer alternative processes that may reduce risk to a select
subset of high volume toxic chemicals (Department of Homeland Security, FY2010 Budget Justification, pp. S&T
R&D - 27–28). The Chemical Security Analysis Center of the DHS S&T Directorate contracted with the Center for
Chemical Process Safety of the American Institute of Chemical Engineers to develop a technically based definition for
inherently safer technology. See Center for Chemical Process Safety, American Institute of Chemical Engineers, Final
Report: Definition for Inherently Safer Technology in Production, Transportation, Storage, and Use, July 2010.
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finance implementation, may challenge mandatory implementation of inherently safer
technologies at regulated entities. Even the mandatory consideration of inherently safer
technologies may place a financial burden on some small regulated entities. Congress might limit
mandatory measures to those facilities considered by DHS to pose the most risk or might provide
such financial assistance to regulated facilities.94
Policymakers might choose to try to further incentivize regulated entities to adopt inherently safer
technologies. Under the CFATS regulations, facilities that adopt inherently safer technologies
might change their assigned risk tier by reducing the amount of chemicals of interest on hand.
Policymakers might provide regulated entities that adopt inherently safer technologies with
financial or regulatory incentives. Alternatively, policymakers might direct DHS or another
agency to perform inherently safer technology assessments for regulated entities, transferring the
cost of such assessment from the facility to the federal government.95 The regulated entity or the
overseeing agency might use the results of these assessments to guide implementation.
Modify Information Security Provisions
Congressional policymakers might choose to increase transparency in the CFATS process by
altering the information security provisions of the program. Such an approach might include
increasing the number and type of individuals granted access to CVI, improving information
exchange with first responders, and adjusting the manner by which courts and administrative
proceedings handle CVI. The Obama Administration has testified that CVI is a distinct
information protection regime and expressed support for maintaining CVI in its current form.96
Congress might choose to amend the existing statutory authority to address policy concerns. For
example, while still maintaining disclosure prohibitions for vulnerability or security related
information, Congressional policymakers might require that DHS gather and document comments
and information. Such input might come from outside groups, worker organizations, or other
trade representatives through formal and informal mechanisms or by the solicitation,
development, and use of industry best practices. Policymakers might direct DHS to make specific
types of information, such as the results of enforcement activities or the approval of successful
implementation of a site security plan, more generally available. By mandating the inclusion of
such information gathering or the release of specific information, congressional policymakers
might facilitate greater cooperation between various stakeholder groups. Conversely, such
requirements may raise concerns about the degree of security given to the protected information,
since more individuals will participate in its development and analysis, perhaps increasing the
ability of malicious persons to use such information for targeting purposes. As more information
about the vulnerability assessment process and the results of the security process becomes
available, the potential that adversaries might combine this disparate information to obtain insight
94 Section 401 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188)
mandated drinking water facilities serving more than 3,300 individuals develop an emergency response plan and
perform a vulnerability assessment. Funds were authorized to help offset the costs to these facilities.
95 Following investigation into the explosion at the Bayer CropScience facility in Institute, WV, Members of Congress
requested that the Chemical Safety Board provide recommendations on the adoption of alternative chemical processes
at the chemical facility. Rep. Henry A. Waxman, Sen. John D. Rockefeller IV, Rep. Bart Stupak, and Rep. Edward J.
Markey, Letter to John Bresland, May 4, 2009, online at http://energycommerce.house.gov/Press_111/20090504/
bayer.pdf.
96 Testimony of Rand Beers, Under Secretary, National Protection and Programs Directorate, Department of Homeland
Security, before the Senate Committee on Homeland Security and Governmental Affairs, March 3, 2010.
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into a security weakness could result in a dangerous synergy of information. Congressional
policymakers might require that the executive branch or another entity identify the threats or
vulnerabilities that might accrue from release of a greater amount of chemical facility security
information prior to implementing such a policy change.97
Congressional policymakers can choose as a policy option to alter the information protection
regime afforded to chemical facility security information by specifically expanding access to first
responders. The existing regulation explicitly states that information developed in response to
other laws or regulations, such as Emergency Planning and Community Right-to-Know Act, are
not protected from disclosure. Enhancing first responder access to such information might
minimize perceived barriers to disclosing information during an accident. For example, Congress
might mandate that each jurisdiction containing a regulated chemical facility contain a first
responder designated as a covered individual.
Congressional policymakers also can choose to further limit dissemination of CVI so as to
increase barriers to its release if that is a policy goal. Congress might prohibit DHS from sharing
such information outside of the federal government or set particular criteria that would allow CVI
access to state and local officials. Limiting the number of individuals with access to CVI may
make it more difficult for those wishing to do harm to obtain technical or operational security
information. Conversely, state and local officials may not support such an approach, as limitations
on distribution may also adversely affect emergency response at a regulated facility or inhibit the
ability of state and local law enforcement officials to provide targeted protection of particular
chemical facility assets.
Policymakers might also choose to address the issue of identifying and marking protected
information by mandating review of marked documents. Congressional policymakers might place
this responsibility to review and certify marked information on the chemical facility.
Alternatively, the federal government might review and certify documents marked CVI on a
regular basis. Industry representatives may not support such a review requirement due to the
additional regulatory burden caused by the review. Additionally, while such review might
potentially limit incorrect marking, it may inhibit information reporting by regulated entities to
the federal government. Additionally, absent a penalty for incorrect marking, it is unclear how to
ensure compliance.
Congressional policymakers may also address concerns raised regarding the ability of concerned
individuals to report misdeeds by creating a “whistleblower” reporting mechanism.98 One
approach might be to codify the current mechanism of reporting such concerns specific to DHS or
a similar federal entity, such as an agency Inspector General. Alternatively, Congress can create a
more general exemption to the penalties arising from disclosure of protected information for
those individuals who report such concerns to federal officials if that is needed to protect
whistleblowers. As part of a whistleblower mechanism, policymakers might choose to extend
97 A similar approach was taken with regard to making available chemical facility information submitted to the EPA
under the auspices of the Risk Management Program. In this case, Congress directed the President to assess the
potential risk of placing this information on the Internet. See Section 3 of Chemical Safety Information, Site Security
and Fuels Regulatory Relief Act (P.L. 106-40). See Department of Justice, Assessment of the Increased Risk of
Terrorist or Other Criminal Activity Associated with Posting Off-Site Consequence Analysis Information on the
Internet, April 18, 2000.
98 While DHS has established a “CFATS Tip-Line” where individuals may report security concerns, individuals using
the tip-line accrue no special protections.
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protections against retaliation or other job-related actions to those individuals availing themselves
of current or newly established reporting mechanisms.
Preempt State Regulations
The 110th Congress addressed the issue of federal preemption of state chemical facility security
statutes and regulations by placing in statute the requirement that only when an “actual conflict”
occurs between state and federal regulation will the state regulation be preempted.99
Congressional policymakers may choose to further limit the cases where federal regulation would
preempt state regulation by affirming the right of states to make chemical facility security
regulations that are more stringent than federal regulation even if they conflict. Alternatively,
policymakers may choose to increase the number of cases where federal regulations preempt
those of a state by expanding the types of conflict, beyond “actual,” that will lead to preemption.
Congressional Action
The annual appropriations process provides funding for implementation of chemical facility
security regulation. The Department of Defense and Full-Year Continuing Appropriations Act,
2011 (P.L. 112-10) extends the statutory authority through October 4, 2011. While P.L. 112-10
provides a FY2011 expenditure level for the National Protection and Programs Directorate—
Infrastructure Protection and Information Security appropriations account, it does not specify a
level for chemical facility security regulation.
Extend the Existing Authority
The current statutory authority expires on October 4, 2011. Congress is considering extending the
existing authority through appropriations and authorization legislation. The Obama
Administration has requested an extension of the existing statutory authority in each budget
request. It requested an extension of the existing statutory authority to October 4, 2011, in the
FY2011 budget and an extension to October 4, 2013, in the FY2012 budget.100
H.R. 901
H.R. 901, the Chemical Facility Anti-Terrorism Security Authorization Act of 2011, was ordered
reported as amended by the House Committee on Homeland Security. The act would amend the
Homeland Security Act of 2002 with provisions authorizing DHS oversight of chemical facility
security. The provisions of H.R. 901 generally match the existing statutory authority. H.R. 901
would also authorize appropriation of approximately $90 million annually from FY2012 through
FY2018. The statutory authority would expire on September 30, 2018. In addition, the DHS
would be required to approve or disapprove of vulnerability assessments and site security plans
within 180 days of receipt and provide technical support to regulated entities qualifying as small
99 P.L. 110-161, the Consolidated Appropriations Act, 2008, Section 534.
100 Office of Management and Budget, The White House, Budget of the United States Government, Fiscal Year 2011,
Appendix, p. 574; Office of Management and Budget, The White House, Budget of the United States Government,
Fiscal Year 2012, Appendix, p. 553.
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businesses. The DHS would issue guidance on how alternative background checks would meet in
full or in part any background check personnel security requirement. Finally, the DHS would be
required to report to select congressional committees regarding its success at meeting the 180 day
requirement, efforts to harmonize CFATS and MTSA regulations, and on the number of jobs
created or eliminated due to CFATS regulation.
H.R. 901 was also referred to the House Committee on Energy and Commerce to the
Subcommittee on Environment and the Economy. The subcommittee has taken no further action
on this bill.
H.R. 908
H.R. 908, the Full Implementation of the Chemical Facility Anti-Terrorism Standards Act, was
ordered reported as amended by the House Committee on Energy and Commerce. The act would
extend the existing statutory authority to October 4, 2018. H.R. 908 would authorize
appropriations of $89.92 million for each fiscal year from FY2012 through FY2018. It would
allow the Secretary of Homeland Security to accept security background checks conducted for
other purposes. Finally, it would also allow holders of Transportation Worker Identification
Credential cards access to CFATS-regulated facilities.
H.R. 916
H.R. 916, the Continuing Chemical Facilities Antiterrorism Security Act of 2011, was referred to
the House Committee on Energy and Commerce and the House Committee on Homeland
Security. The act would extend the existing statutory authority to October 4, 2015. It would also
amend the Homeland Security Act of 2002 to direct the Secretary of Homeland Security to
establish a voluntary chemical security training program and a voluntary chemical security
exercise program. Finally, it would authorize such sums as necessary for these programs.
H.R. 2017
H.R. 2017, the Continuing Appropriations Act, 2012, was passed by the Senate on September 26,
2011, and by the House on September 29, 2011. It would continue the existing statutory authority
to October 4, 2011.
H.R. 2608
H.R. 2608, the Continuing Appropriations Act, 2012, was passed by the House on September 23,
2011. It would extend the existing statutory authority to November 18, 2011.
S. 473
S. 473, the Continuing Chemical Facilities Antiterrorism Security Act of 2011, was ordered
reported with an amendment by the Senate Committee on Homeland Security and Governmental
Affairs. S. 473 would extend the existing statutory authority to October 4, 2014. In addition, it
would amend the Homeland Security Act of 2002 to direct the Secretary of Homeland Security to
establish a voluntary chemical security training program, a voluntary chemical security exercise
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program, a voluntary technical assistance program, and a chemical facility security advisory
board. S. 473 would authorize such sums as necessary for the programs and board.
Modify the Existing Authority
Legislation has been introduced in both chambers that would modify the existing authority.
H.R. 225
H.R. 225, the Chemical Facility Security Improvement Act of 2011, was referred to the House
Committee on Energy and Commerce and the House Committee on Homeland Security. The act
would prohibit the Secretary of Homeland Security from approving a chemical facility site
security plan if the plan did not meet or exceed existing state or local security requirements. It
would allow the Secretary of Homeland Security to mandate the use of specific security measures
in site security plans. The bill would also cause CVI to be treated as sensitive security
information in both general and legal proceedings. Finally, the act would no longer prohibit third-
party individuals from bringing suit in court to require the Secretary of Homeland Security to
enforce chemical facility security regulations against a chemical facility.
S. 709
S. 709, the Secure Chemical Facilities Act, was referred to the Senate Committee on Homeland
Security and Governmental Affairs. The act would codify aspects of the CFATS regulation. It
would require facilities to evaluate whether the facility could reduce the consequences of an
attack by using a safer chemical or process. The act would authorize DHS to require
implementation of those safer measures if a facility has been classified as one of the highest-risk
facilities, implementation of safer measures is feasible, and implementation would not increase
risk overall by shifting risk to another location. Among other provisions, S. 709 also would
increase the participation of employees and employee representatives in developing security
plans. S. 709 would alter the current information control regime, aligning it with that for sensitive
security information. Finally, S. 709 would allow citizens to file suit against the Secretary of
Homeland Security or submit a petition to the Secretary to enforce compliance with statute.
H.R. 2890
H.R. 2890, a bill to expand homeland security at public water systems and treatment works by
allowing the Secretary of Homeland Security to include these facilities in the Chemical Facility
Anti-Terrorism Standards program, was referred to the House Committee on Energy and
Commerce and the House Committee on Transportation and Infrastructure. The act would expand
chemical facility security regulation to public water systems and wastewater treatment facilities
and direct the President to delegate such authority from the Secretary of Homeland Security to the
EPA Administrator.
S. 711
S. 711, the Secure Water Facilities Act, was referred to the Senate Committee on Environment
and Public Works. The act would authorize the EPA Administrator to regulate community water
systems and wastewater treatment facilities for security purposes. S. 711 also would authorize
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implementation of methods to reduce the consequences of a chemical release from an intentional
act. Among other provisions, the Administrator would be directed to promulgate regulations as
necessary to prohibit the unauthorized disclosure of controlled information. S. 711 would
authorize the Administrator to provide grants or enter into cooperative agreements with states or
regulated entities to assist in regulatory compliance.
Author Contact Information
Dana A. Shea
Specialist in Science and Technology Policy
dshea@crs.loc.gov, 7-6844
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