The Department of Homeland Security issued an advance notice of rulemaking for chemical facility security regulations last week, published on Thursday in the Federal Register. These regulations follow the loose mandate set forth in Sec. 550 of the FY 2007 DHS appropriations bill, following blocked efforts to pass comprehensive chemical security legislation earlier in 2006 – a process followed closely, as loyal readers know, on this site. Comments on the regulations are due no later than February 7, 2007.
I’ve read through the full document, and while there are some solid sections of it (for example, the sections on risk assessment and vulnerability analysis), there are a number of aspects of the draft regulations that are troublesome. I find four key flaws with the draft regs:
1. Excessive deference. The regulations have a very obsequious and overly legalistic tone, bending over backward to provide the chemical facilities with means to contest decisions, and provide for a drawn-out mediation process before penalties might be used. This type of deference might be acceptable in non-security contexts, but it seems misplaced when the topic is a critical homeland security vulnerability.
2. Inspection process. The draft regulations state that DHS will only conduct inspections during regular business hours and will provide at least 24-hour notice of an incoming inspection. From a security perspective, this is ludicrous. Terrorists could attack a chemical facility at any hour of the day, and in fact might be more likely to attack some facilities at night, if the adjacent area has a larger nighttime population than a daytime population. And giving advance notice of inspections is an invitation for scofflaw plants to cover up poor execution of their security plans. Instead, DHS should be employing an “any place, any time” approach to inspections.
3. State law preemption. DHS interprets Sec. 550 as giving them the mandate to block the enforcement of state laws (such as the one on the books in New Jersey) on chemical facility security, a provision that has already earned a strident rebuke from Sen. Collins. Throughout the debate over the past year, I’ve argued that states should be allowed to set tougher regulations consistent with principles of federalism, and I believe it’s a mistake for DHS to block their ability to do so.
4. “Chemical Terrorism-Vulnerability Information”. A long section of the draft regs discusses DHS’s decision to create a new category of “sensitive-but-unclassified” information: Chemical Terrorism-Vulnerability Information (CVI). At a broader level, the last thing that DHS needs to do right now is to create a new category of SBU information; as the GAO has exhaustively analyzed, the proliferation of SBU categories has inhibited effective information-sharing within the federal government. Reading the draft regs, I worry also that this section would inhibit the ability of local law enforcement and response officials to learn about security at chemical facilities within their jurisdiction. This would be unfortunate, since these are the officials who will be on the scene before the feds if an attack occurred.
Overall, these draft regs confirm my earlier concerns that the language in the final appropriations bill would turn out to be insufficient. Congress needs to step up to the plate again in the 110th Congress on this issue, building off of the earlier proposals that passed the two homeland security committees. And concerned citizens can submit comments at regulations.gov (docket # DHS-2006-0073) by the Feb. 7th deadline.