Statutory Authority for the Chemical Facility Anti-Terrorism Standards (CFATS): A Comparison of H.R. 4007 and P.L. 109-295, Section 550
Released: 2014-07-17T00:00:00

State and federal governments have long regulated safety practices at chemical facilities because of the potential harm that a large, sudden release of hazardous chemicals could cause to nearby people. Even before the terrorist attacks of 2001, congressional policy makers expressed concern about the security vulnerabilities of these facilities, which historically engaged in security activities on a voluntary basis. After the 2001 attacks and the decision by several states to begin regulating security at chemical facilities, Congress again considered requiring federal security regulations to mitigate risks.

In 2006, the 109 th Congress passed legislation providing the Department of Homeland Security (DHS) with statutory authority to regulate chemical facilities for security purposes. The statute explicitly identified some DHS authorities and left other aspects to the discretion of the Secretary of Homeland Security. The Secretary exercised that discretion when implementing this authority through regulations called the Chemical Facility Anti-Terrorism Standards (CFATS). The statute contains a "sunset provision" that causes the statutory authority to expire. Subsequent Congresses have extended the termination date of this authority to October 4, 2014. Advocacy groups, industry stakeholders, and policy makers have called for Congress to reauthorize this authority, though they disagree about the preferred approach. Members of Congress have introduced bills taking several different approaches to the issue of reauthorization in the current and previous Congresses. Congress may extend the existing authority, revise the existing authority to resolve potentially contentious issues, or allow the authority to lapse.

In the 113 th Congress, Members have introduced several proposals in the House and the Senate that would extend the statutory termination date, modify the underlying statutory authority, or both. The House of Representatives passed H.R. 4007 , the Chemical Facility Anti-Terrorism Standards Program Authorization and Accountability Act of 2014, on July 8, 2014. The House Committee on Homeland Security had amended the bill as forwarded by its Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies and reported it to the House of Representatives with a favorable recommendation, as amended.

This report compares H.R. 4007 , as passed by the House, to the existing statutory authority. It provides a brief overview of H.R. 4007 , as passed by the House; identifies select differences for comparison; analyzes each section of H.R. 4007 , as passed by the House, in the context of the existing statutory authority; and discusses several policy issues raised by the Obama Administration in the context of chemical facility security legislation.

Overview of H.R. 4007, as Passed by the House

H.R. 4007 has both similarities and differences with the existing statute. H.R. 4007 , as passed by the House, incorporates much of the language in the existing statutory authority. Consequently, its authorities would generally encompass the existing authorities, and its implementation by DHS may retain a similar regulatory structure. Indeed, the bill expressly would allow DHS to use existing CFATS regulations to implement its provisions.

In contrast with the existing statute, H.R. 4007 , as passed by the House, would amend the Homeland Security Act of 2002 ( P.L. 107-296 , as amended). It would create a new title, Title XXI, called Chemical Facility Anti-Terrorism Standards. Another key difference between H.R. 4007 , as passed by the House, and the existing statute is the absence of a statutory termination date. The statutory authority would be permanent, though H.R. 4007 , as passed by the House, explicitly authorizes appropriations for three years.

H.R. 4007 , as passed by the House, contains additional legislative language that would add to the Secretary's responsibilities. For example, H.R. 4007 , as passed by the House, would require certain outreach to chemical facilities, assistance to regulated small chemical facilities, and reporting by DHS and the Government Accountability Office (GAO) on program performance.

Finally, H.R. 4007 , as passed by the House, would modify the discretion of the Secretary of Homeland Security in various areas. The Secretary's existing discretion to establish criteria for risk-based performance standards would be maintained. H.R. 4007 , as passed by the House, would limit the Secretary's discretion when it expressly requires DHS to accept alternative security programs with respect to site security plans, mandate specific approaches with respect to personnel surety, and restrict the Secretary's ability to require covered chemical facilities to submit information to DHS about personnel at the facility. Finally, H.R. 4007 , as passed by the House, would expand the discretion of the Secretary by no longer limiting application of the statutory authority to high-risk facilities. Some experts might argue that modifying the Secretary's discretion might lead to a less efficient regulatory program. Other experts might argue that the Secretary's discretion might need further modification in order to reflect congressional intent.

Table 1 below highlights selected differences between H.R. 4007 , as passed by the House, and P.L. 109-295 , Section 550, as amended. For a fuller comparison of legislative text, see Table A-1 in the Appendix .

Section by Section Discussion

This section of the report discusses each section of H.R. 4007 , as passed by the House, and provides policy analysis regarding selected provisions in the context of the existing statutory authority and CFATS regulation. For a direct comparison of the bill language and the existing statutory authority, see Table A-1 . H.R. 4007 , as passed by the House, contains three sections.

Section 1, Short Title

Section 1 of H.R. 4007 , as passed by the House, contains the act's short title. The existing authority has no comparable provision.

Section 2, Chemical Facility Anti-Terrorism Standards Program

Section 2 of H.R. 4007 , as passed by the House, consists of amendments to the Homeland Security Act of 2002 and contains four subsections. Subsection 2(a) would create a new title, Title XXI, called Chemical Facility Anti-Terrorism Standards, in the Homeland Security Act. This new title would have ten sections as described below.

Section 2101, Chemical Facility Anti-Terrorism Standards Program

Section 2101 of the new title has six subsections that are analyzed below.

Establishment of Risk-Based Performance Standards

Subsection 2101(a) of the new title would establish a Chemical Facility Anti-Terrorism Standards Program and direct the Secretary to establish risk-based performance standards under that program. These standards would be designed to protect chemical facilities that the Secretary determines are either a "covered chemical facility" or a "chemical facility of interest" from acts of terrorism and other security risks. Later provisions would define a "chemical facility of interest" as a facility that holds certain chemicals above a certain quantity as determined by the Secretary and a "covered chemical facility" as a chemical facility of interest that the Secretary determines meets certain security risk criteria. This subsection would also require both chemical facilities of interest and covered chemical facilities to submit security vulnerability assessments and develop and implement site security plans.

The existing statutory authority specifically directs the Secretary to issue regulations establishing risk-based performance standards for the security of chemical facilities. These regulations are to apply only to chemical facilities that the Secretary determines present high levels of security risk. The regulations are to require vulnerability assessments and the development and implementation of site security plans from these high-risk chemical facilities.

The vulnerability assessment and site security plan requirements of Subsection 2101(a) of the new title would likely affect more chemical facilities than the existing statutory requirements. Under the current CFATS regulation, DHS does not require all chemical facilities with greater than screening threshold quantities of chemicals of interest to submit vulnerability assessments and site security plans. Only those facilities identified by DHS as high-risk must submit vulnerability assessments and site security plans. Approximately 36,000 facilities have reported possessing a chemical of interest above a screening threshold quantity, while DHS regulates approximately 4,000 of these facilities as high risk. The Subsection 2101(a) requirement that a chemical facility of interest must submit a vulnerability assessment and site security plan may lead to DHS receiving such documents from the approximately 36,000 facilities.

Layered Security in Site Security Plans

Subsection 2101(b) of the new title would, like the existing statutory authority, allow a facility to use layered security measures in its site security plan to address the security vulnerability assessment and the risk-based performance standards.

Approval and Disapproval of Site Security Plans

Subsection 2101(c) of the new title contains four provisions regarding approval and disapproval of site security plans. The first would, like the existing statute, require the Secretary to review and approve each security vulnerability assessment and site security plan and prohibit the Secretary from requiring the presence or absence of a particular security measure to obtain approval. The Secretary would be allowed to disapprove a site security plan that fails to satisfy the risk-based performance standards.

The second provision would allow the Secretary to approve alternative private or governmental security programs that meet the Secretary's requirements. This provision would also explicitly allow a covered chemical facility to meet the site security plan requirement by adopting an alternative security program reviewed and approved by the Secretary. The existing statute permits the Secretary to approve an alternative security program, but does not provide explicit approval for a facility to use such a program to meet the site security plan requirement. The current CFATS regulation allows all regulated entities to meet the site security planning requirement through submission of an alternative security program. Consequently, some analysts may view this language as making the current regulatory approach explicit in statute.

The third provision would require the Secretary to employ risk assessment policies and procedures developed under the new title when approving or disapproving a site security plan. However, it would prohibit the Secretary from requiring resubmission of site security information from a covered chemical facility that had received approval prior to the enactment of the new title, if the sole reason for resubmission was that enactment.

The fourth provision would allow DHS to consult with GAO regarding the applicability of a third-party accreditation program. This provision is not present in the current statute.

Audits and Inspections, Noncompliance, Personnel Surety, Facility Access, and Information Availability

Subsection 2101(d) of the new title addresses compliance and contains five provisions. The first provision addresses audits and inspections. Like the existing statute, it requires the Secretary to audit and inspect covered chemical facilities. It differs from the existing statute in that it would expressly allow the Secretary to use non-DHS and nongovernmental inspectors in the inspection process. This subsection would also establish a reporting structure and certain standards and requirements for non-DHS and nongovernmental personnel who conduct such audits or inspections. In addition, it would require the Secretary to prescribe certain standards for training and retraining of auditors and inspectors employed by DHS.

In 2007, during comment on the CFATS interim final rule, some stakeholders expressed concerns about DHS use of third-party inspectors. As described by DHS, these concerns included:

potential conflicts of interest among third-party inspectors and members of the regulated community; potential disclosure of facility business and security information; potential inconsistency in training and inspection standards between federal and third-party inspectors; and the need for DHS to establish necessary qualifications, certification, and indemnification for third-party inspectors.

Also, some stakeholders asserted that DHS might increase the rate of site security plan approvals through the use of third-party inspectors. The DHS itself raised questions about the appropriateness of DHS use of third-party auditors and if so, what their standards and requirements would be. The express authorization for DHS to use and set standards for non-DHS and nongovernmental inspectors as included in Subsection 2101(d) would likely resolve DHS questions regarding appropriateness of use and establishment of standards.

The second provision in Subsection 2101(d) addresses noncompliance by a covered chemical facility. Like the existing statute, it would require the Secretary, upon discovering noncompliance, to provide the owner or operator of the facility with written notification, including an explanation of any deficiency; provide opportunity for consultation; and issue an order to comply by a specified date. If noncompliance continues, the Secretary would be allowed to issue an order for the facility to cease operation. Unlike the existing statute, this provision would require that written notification must occur no later than 14 days after a determination of noncompliance; would direct that consultation following a written notification of a facility be with "the Secretary or the Secretary's designee"; and would allow the Secretary to issue an order to cease operation only if noncompliance exists "after the date specified" in such an order to comply. The existing statute only requires written notification and identification of an opportunity for unspecified consultation. It does not expressly limit the Secretary's ability to issue an order to cease operation. It instead states that such an order may be issued in the case of an owner or operator continuing to be noncompliant.

The third provision, which has no comparable provision in the existing statute, addresses personnel surety. It would direct the Secretary to establish a personnel surety program that would require submission of information only once, provide participating facilities with feedback about individuals submitted for vetting, and provide redress to individuals who believe the submitted information was inaccurate. It would allow a covered chemical facility to use any federal screening program that periodically vets individuals against the terrorist screening database to satisfy its obligation under a personnel surety performance standard. It would prohibit the Secretary from requiring a covered chemical facility to submit any information about an individual unless the individual is vetted under the DHS personnel surety program (in contrast to another federal screening program) or has been identified by the Secretary as presenting a terrorism security risk. Finally, it would require the DHS Security Screening Coordination Office to expedite the development of a common credential and would require DHS to report annually on progress toward this requirement.

The use of other federal screening programs to meet a CFATS personnel surety requirement has been an issue of contention. The DHS has issued an information collection request proposing a personnel surety program. The personnel surety proposal issued by DHS would accept credentials that are vetted recurrently against the terrorist screening database and have their validity verified on a continuing basis by electronic or other means. The DHS has stated that it would not accept, in lieu of its own program, other personnel surety programs that vet individuals on a different schedule. This position would appear to conflict with the requirements in Subsection 2101(d).

The fourth provision of the subsection addresses facility access. It would generally prohibit the Secretary from requiring a facility to submit any information about an individual who has been granted facility access. The DHS may require information submission only if DHS has vetted the individual under its personnel surety program or identified the individual as presenting a terrorism security risk. The DHS, under its proposed personnel surety program information collection request, would require facilities to submit information on personnel with access to the regulated areas of a facility. This submission would generally be regardless of credential possession, unless the facility installs electronic readers able to query an approved credential. Facilities would submit different information for individuals with recurrently vetted credentials than for other individuals. This provision would appear to prohibit a requirement to submit this information to DHS to obtain access to a facility.

The fifth provision is not present in the current statutory authority. This provision would require the Secretary to share with the owner or operator of a covered chemical facility such information as the owner or operator needs to comply with Section 2101. The provision may raise questions such as whether the Secretary or the owner or operator determines what information is needed, how such information should be protected, and how such information should be requested and provided. This provision also affirmatively requires the Secretary to share information with owners or operators. A later provision that addresses information sharing with states and local government does not make such an affirmative requirement, but rather permits the Secretary to share as the Secretary deems appropriate.

Responsibilities of the Secretary

Subsection 2101(e) of the new title identifies certain responsibilities of the Secretary and contains three provisions: one on identifying chemical facilities of interest, one on risk assessment, and one on changes in facility tiering. None of these provisions are present in the existing statutory authority.

The first provision would require the Secretary to consult with the heads of other federal agencies, states and political subdivisions thereof, and relevant business associations to identify all chemical facilities of interest.

The second would require the Secretary to develop a risk assessment approach and corresponding tiering methodology incorporating all relevant elements of risk, including threat, vulnerability, and consequence. It would further require that the criteria for determining a facility's security risk include the relevant threat information, the potential economic consequences of a terrorism incident at the facility and the potential loss of human life, and the vulnerability of the facility to certain terrorist events.

The third would require the Secretary to maintain records that reflect the basis for any determination that a facility is no longer subject to the regulatory requirements due to a change in risk tier. In addition to the basis for the determination, the records would include how that basis was confirmed by the Secretary.

Definitions

Subsection 2101(f) of the new title would define certain terms. It would define a "covered chemical facility" as a chemical facility of interest that the Secretary determines meets certain security risk criteria. This subsection would exempt from the definition of "covered chemical facility" those facilities regulated under the Maritime Transportation Security Act of 2002 (MTSA), public water systems as defined by Section 1401 of the Safe Drinking Water Act, wastewater treatment works as defined in Section 212 of the Federal Water Pollution Control Act, any facility owned or operated by the Department of Defense or the Department of Energy, and any facility subject to regulation by the Nuclear Regulatory Commission. The existing statute exempts facilities of these types from all regulation under the statute.

It would define a "chemical facility of interest" as a facility that holds certain chemicals above a certain quantity determined by the Secretary. No types of facility are exempt from the definition of "chemical facility of interest." The existing statute does not contain a similar definition.

The presence of exemptions to the definition of "covered chemical facility" but not to the definition of "chemical facility of interest" may have certain impacts. Facilities of the types exempt from the definition of covered chemical facility may have to meet requirements applying to both chemical facilities of interest and covered chemical facilities, such as those found in Subsection 2101(a) of the new title. Requirements established for chemical facilities of interest may apply to those facilities even though they are exempt from further requirements applying to covered chemical facilities.

Section 2102, Protection and Sharing of Information

Section 2102 of the new title has four provisions addressing protection and sharing of information. Three are similar to existing statutory authority. Subsection 2102(a) of the new title would protect information developed pursuant to the act from disclosure in a manner consistent with that established under MTSA. Subsection 2102(b) of the new title would allow for the sharing of information with state and local government officials, including law enforcement officials and first responders, who possess the necessary security clearances. Subsection 2102(d) of the new title would direct that in any enforcement proceeding, information submitted to or obtained by the Secretary shall be treated as if the information were classified material. These provisions in the existing statutory authority form the basis for DHS's designation of Chemical-terrorism Vulnerability Information (CVI). While Subsection 2102(a) and Subsection 2102(b) reference "information developed pursuant to this title," Subsection 2102(d) of the new title refers to proceedings and information "under this section." This reference, rather than "under this title," may limit the applicability and effectiveness of Subsection 2102(d), since Section 2102 addresses information sharing rather than the program as a whole. The equivalent language in P.L. 109-295 , Section 550, also states "under this section," but it applies to the entire existing statutory authority, since that is fully contained in Section 550.

Subsection 2102(c) of the new title is not present in the existing statutory authority. It would require the Secretary to provide such information as is necessary to help ensure that first responders are prepared and provided with the situational awareness they need to respond to incidents at covered chemical facilities. It would require this information to be provided to state, local, and regional fusion centers and disseminated through the Homeland Security Information Network or the Homeland Security Data Network, as appropriate.

Section 2103, Civil Penalties

Section 2103 of the new title contains two provisions on civil penalties, both of which are in the existing statutory authority. As under the existing statute, Subsection 2103(a) of the new title would establish a civil penalty of not more than $25,000 per day of violation. Also as under the existing statute, Subsection 2103(b) of the new title would deny any person except the Secretary a right of action to enforce any provision of the new title against an owner or operator of a covered chemical facility.

Section 2104. Whistleblower Protections

Section 2104 of the new title would require the Secretary to publish on the DHS website, and in other publicly available materials, the protections that attach to an individual who provides DHS with "whistleblower" information about covered chemical facilities. The current statutory authority contains no comparable provision.

Section 2105, Relationship to Other Laws

Section 2105 of the new title contains three provisions addressing the relationship of the new title to other laws. Two of the provisions are present in the current statutory authority. Subsection 2105(a) of the new title would affirm that nothing in that title shall be construed to supersede, amend, alter, or affect any federal law that regulates the manufacture, distribution in commerce, use, sale, other treatment, or disposal of chemical substances or mixtures. Subsection 2105(b) of the new title would affirm that it would not preclude a state or political subdivision of a state from establishing more stringent requirements for covered chemical facilities unless an actual conflict exists. As in Section 2102 of the new title, this latter provision refers to standards "issued under this section" and "actual conflict between this Section and the law of that State" rather than referencing the new title as a whole.

The third provision, Subsection 2105(c) of the new title, would require the Secretary to coordinate with the Assistant Secretary of Homeland Security (Transportation Security Administration) to "eliminate any provision of this title applicable to rail security" that would duplicate a security measure under 49 C.F.R. 1580. It also would clarify that in the case of a conflict between regulations established under the new title and those under the jurisdiction of TSA, the TSA regulation prevails. In addition, it would exempt rail transit facilities and rail facilities regulated under Subpart 3 of 49 C.F.R. 1580 (this likely refers to Subpart B of 49 C.F.R. 1580, which addresses rail cargo transportation security) from any requirement to submit Top-Screen information. This would create another statutory exemption from CFATS regulation. Currently, DHS does not require railroad facilities to submit Top-Screen information in order for DHS to determine their security risk under CFATS. Consequently, some analysts may view this language as making the current regulatory approach explicit in statute.

Section 2106, Reports

Section 2106 of the new title contains two provisions that would create reporting requirements. These reporting requirements are not present in the current statutory authority. Subsection 2106(a) of the new title would require the Secretary to submit to Congress, no later than 18 months after enactment, a report on the CFATS program. The report would include a certification by the Secretary of significant progress in identifying all chemical facilities of interest, a description of the steps taken to achieve such progress, and the metrics used to measure it. The report would also include a certification by the Secretary that he or she has developed a risk assessment approach and corresponding tiering methodology as directed by Section 2101 of the new title. Finally, the report would require the Secretary to assess the implementation of any recommendations made by the Homeland Security Studies and Analysis Institute as outlined in the Institute's "Tiering Methodology Peer Review" (Publication Number: RP12-22-02). Subsection 2106(b) of the new title would require the Comptroller General (i.e., the Government Accountability Office) to submit a report to Congress every six months assessing the act's implementation, starting 180 days after the date of enactment. This reporting requirement would expire three years after enactment.

Section 2107, CFATS Regulations

Section 2107 of the new title addresses the issuance and use of regulations to implement the new title and contains four provisions. Subsection 2107(a) would authorize the Secretary to promulgate regulations. Subsection 2107(b) would authorize the Secretary to promulgate or amend any CFATS regulation already in effect to carry out the requirements of the new title. Subsection 2107(c) would define "CFATS regulations" as guidance published or regulations promulgated under the existing authority granted by Section 550 of P.L. 109-295 . Subsection 2107(d) would require the Secretary to rely exclusively on the authority provided in the new title for identifying chemicals of interest, designating chemicals of interest, and determining a chemical facility's security risk. The existing statute states that regulations issued under Section 550 of P.L. 109-295 shall apply until expressly superseded.

Section 2108, Small Covered Chemical Facilities

Section 2108 of the new title would allow the Secretary to provide guidance and tools to small covered chemical facilities to assist in developing their physical security. It would define a small covered chemical facility as a covered chemical facility that employs fewer than 350 employees at the covered chemical facility, and is not a branch or subsidiary of another entity. The Secretary would be required to submit a report to Congress on best practices that may assist small chemical facilities in developing physical security best practices. This report would be delivered to the House Committee on Homeland Security and the Senate Committee on Homeland Security and Governmental Affairs. The existing statute contains no comparable provision.

Section 2109, Outreach to Chemical Facilities of Interest

Section 2109 of the new title addresses outreach to chemical facilities of interest. It would require the Secretary to coordinate with relevant business associations and federal and state agencies to establish an outreach implementation plan within 90 days of enactment. This implementation plan would be to identify chemical facilities of interest and make available compliance assistance materials and information on education and training. The existing statute contains no comparable provision.

Section 2110, Authorization of Appropriations

Section 2110 of the new title would authorize appropriations to carry out the new title for FY2015 through FY2017 at the level of $81 million per year. The existing statute contains no express authorization of appropriations. For FY2015, the Administration requested $87.436 million for the Infrastructure Security Compliance Division, which implements CFATS. For FY2014, the 113 th Congress provided $81 million.

Other Provisions of Section 2, Chemical Facility Anti-Terrorism Standards Program

Subsection 2(b) of H.R. 4007 , as passed by the House, would amend the table of contents of the Homeland Security Act to reflect the addition of the new title.

Subsection 2(c) of H.R. 4007 , as passed by the House, would require the Secretary to commission a third-party study to assess vulnerabilities to acts of terrorism associated with the current CFATS program authorized under P.L. 109-295 , Section 550.

Subsection 2(d) of H.R. 4007 , as passed by the House, would require the Secretary to submit a plan for using metrics to assess CFATS program effectiveness. This plan would include benchmarks for DHS use of the metrics and information on how DHS plans to use such information for program analysis. The plan would be due 180 days after enactment.

Section 3, Effective Date

Section 3 of H.R. 4007 , as passed by the House, would establish that the act would take effect 30 days after enactment.

Issues Raised by the Administration

Executive branch agencies have raised several issues with regard to chemical facility security in testimony or in official reports. H.R. 4007 , as passed the House, addresses some of these issues directly. This section does not attempt to discuss these issues in the broader policy context, but instead compares them with action taken in the context of H.R. 4007 , as passed by the House. For more information on these issues, including discussion of various policy alternatives, see CRS Report R42918, Chemical Facility Security: Issues and Options for the 113 th Congress , by [author name scrubbed].

Inclusion of 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.

In 2010, the Obama Administration expressed its position on the use of inherently safer technologies to enhance security at high-risk chemical facilities in some circumstances. It 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.

The Administration believes that the appropriate regulatory entity should review the inherently safer technology assessment contained in the site security plan for all Tier 3 and Tier 4 facilities. 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.

H.R. 4007 , as passed by the House, maintains the existing statutory language that prohibits the Secretary from disapproving a site security plan based on the presence or absence of a particular security measure. The DHS has interpreted this statutory language as prohibiting it from requiring consideration or implementation of inherently safer technologies.

Long-Term Authorization

While the Obama Administration FY2015 budget request seeks an extension of the statutory authority until October 4, 2015, the Obama Administration has also supported enacting a longer or permanent statutory authority. In response to Executive Order 13650, Improving Chemical Facility Safety and Security , the Administration established a multi-agency Chemical Facility Safety and Security Working Group co-chaired by the Department of Homeland Security, Environmental Protection Agency, and Department of Labor. In May 2014, the working group issued a report to the President that called for congressional action to provide permanent statutory authorization for the CFATS program. H.R. 4007 , as passed by the House, lacks a statutory termination date and would provide a permanent statutory authorization. It also provides a three-year authorization of appropriations through FY2017.

CFATS Enforcement Process

The report of the Chemical Facility Safety and Security Working Group established in response to Executive Order 13650 also called for congressional action to change the CFATS enforcement process. The report notes that the current statute requires a multi-step enforcement process before DHS can fine or shut down a facility for noncompliance. It asserts that the ability to immediately issue orders to assess civil penalties or to close down a facility for violations, without having to first issue an order calling for correction of the violation, is an important ability that DHS lacks. The report states, "Congress should provide this streamlined enforcement authority so that, in circumstances in which a facility's noncompliance presents an immediate threat, DHS can act quickly to safeguard the facility and protect the public from potential acts of terrorism." H.R. 4007 , as passed by the House, would retain the existing statute's general enforcement structure, which requires that the Secretary provide the facility owner or operator with written notification, an opportunity for consultation, and issue an order to comply by a specific date before issuing an order for civil penalty or to cease operation.

Removal of Water and Wastewater Exemptions

Since 2008, 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 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.

In 2010, EPA 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.

In contrast, the May 2014 report to the President by the Chemical Facility Safety and Security Working Group called for action from Congress to remove the exemption for water and wastewater treatment facilities. According to the report, DHS could then regulate security at these facilities in collaboration with the EPA.

H.R. 4007 , as passed by the House, would exempt water and wastewater treatment facilities from the definition of covered chemical facility. According to the House report accompanying H.R. 4007 , as passed the House:

The Committee did not alter these exemptions from Sec. 550. First required by Congress to do vulnerability assessments and emergency response plans in 2002 under the Public Health Security and Bioterrorism Preparedness and Response Act (Safe Drinking Water Act Sections 1433–1435), drinking water facilities are covered under a mature regulatory scheme that is working well. Moreover, according to the DHS Inspector General, the United States contains approximately 52,000 community water systems and 16,500 wastewater treatment facilities. Thus, although some have called for a removal of these exemptions, the Committee believes that to expand the CFATS mission to cover an additional 70,000 facilities—at precisely the time when the program is working to successfully manage its basic responsibilities—would be misguided.

Therefore, DHS would not have authority to regulate public water systems, as defined by Section 1401 of the Safe Drinking Water Act, and wastewater treatment works, as defined in Section 212 of the Federal Water Pollution Control Act, as covered chemical facilities.

Appendix. Side-by-Side Comparison of H.R. 4007, as Passed by the House, and P.L. 109-295, Section 550, as Amended