Chemical Facility Security: Regulation and Issues for Congress

Publication Date: January 2008

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Manufacturing and industry

Type:

Abstract:

The Department of Homeland Security (DHS) has proposed security regulations for chemical facilities, implementing the statutory authority granted in the Homeland Security Appropriations Act, 2007 (P.L. 109-295, Section 550). The proposed regulations (71 Federal Register 78,276�78,332 (December 28, 2006)) require chemical facilities possessing amounts and types of substances considered by the DHS Secretary to be hazardous to notify DHS and undergo a consequence-based screening process. The Secretary would then determine what chemical facilities are high-risk, and thus need to comply with additional security requirements. The proposed security requirements would be performance-based, rather than prescriptive, and tiered, with facilities in higher tiers having more stringent requirements than those in lower tiers.

High-risk chemical facilities will be required to create and submit to DHS a vulnerability assessment; create and submit to DHS a site security plan, addressing the vulnerability assessment and complying with the performance-based standards; and implement the site security plan at the chemical facility. The DHS Secretary will approve or disapprove each step in the process, requiring the chemical facility to improve the facility submission or implementation in the case of disapproval.

The proposed security regulations also establish a new category of protected information, Chemical-terrorism Security and Vulnerability Information (CVI), granting it a status between sensitive but unclassified and classified information. The Secretary maintains discretion over who will gain access to this information, how it may be used, and what will comprise CVI. Additionally, the proposed security regulations will preempt state and local chemical facility security regulations.

Key issues debated in previous Congresses are highlighted in the proposed security regulations, even when the enacted authorizing statute remained mute on the topic. These issues include what facilities should be considered as chemical facilities; which chemical facilities should be considered as "high-risk" and thus regulated; the scope of the risk-based performance standards for different tiers of high-risk chemical facilities; the appropriateness of federal preemption of existing state chemical facility security regulation; and the availability of information for public comment, potential litigation, and congressional oversight. One key issue not directly addressed by the regulation is the role of inherently safer technology in the chemical security process.

Policymakers, as well as the general public, have the opportunity to comment in support of or in opposition to the proposed regulation. After promulgation, Congress might disapprove the rule, or attempt to influence implementation through oversight or provisions in appropriations language. Since the statutory authority to regulate chemical facilities expires in 2009, policymakers may wish to observe the impact of the current regulations, determine their effectiveness and efficiency, and, if necessary, address any perceived weaknesses at a later date by amending or superseding them through additional legislation.