May 17, 2006

May 17, 2006 | Executive Memorandum on Department of Homeland Security

Congressional Checklist for Chemical Security

For the first time since 9/11, Congress is seri­ously considering legislation to address the threat of terrorist attacks that exploit chemical infrastruc­ture (e.g., manufacturing and storage facilities and the pipelines, trucks, and railcars that transport chemicals). Any effective legisla­tion must define a reasonable and enforceable role for the private sector in safeguarding its assets and facilities without undermin­ing the competitiveness of indus­tries that manufacture, transport, and utilize hazardous chemical materials. Congress needs a checklist to ensure that proposed legislation contains the right measures and avoids potential pitfalls.

What Is Reasonable? Chemical infrastructure is a ubiquitous part of American life and includes everything from pumping gas to delivering home heating oil to refining gasoline and manufacturing fertilizer. Establishing federal regulatory security standards for every activity (a one-size-fits-all approach) would be a massive and expensive undertaking. It is also unnecessary. Granted, terror­ists might try to turn the instruments of everyday life into weapons, but that is true for lots of things. Excessive regulation and unnecessary security would hamstring the economy without making the nation much safer.

Instead, homeland security efforts need to be prioritized based on risk. With regard to chemical security, that means focusing on dangers that local emergency responders and hazardous material teams would not be able to handle and threats against chemical infrastructure (like large-scale plants and storage facilities) where attacks would cause catastrophic damage, threatening tens of thousands of lives and billions of dollars in property. For this top tier of threats, it is reasonable to require the Department of Home­land Security (DHS) to establish and enforce mandatory standards for preventing unauthorized access to facilities, securing criti­cal areas, and responding to emer­gency situations. Other elements of the chemical sector should adopt the voluntary standards and best practices recommended by fed­eral, state, and local governments and relevant nongovernmental organizations such as profes­sional business associations and the Red Cross.

A Reasonable Checklist. In creating a frame­work for top-tier chemical infrastructure security, Congress should use as its model the Maritime Transportation Security Act (MTSA), which estab­lished performance-based requirements that allow the private sector to determine the best way to achieve security goals but also includes means to audit compliance and penalties for noncompli­ance. Congress should also apply the lessons learned from implementing the MTSA and estab­lish the right balance of incentives and enforce­ment tools to ensure broad acceptance, rapid implementation, minimum disruption of business, and real improvements in security. An effective chemical security bill would:

  • Not mandate inherently "safer" technologies. Some chemical products and processes are highly toxic, but mandating that these should be replaced with "safer" chemicals and methods is not appropriate for anti-terrorism legislation. With regard to security, the private sector's job is to take reasonable measures to prevent mali­cious use of its facilities. On the other hand, decisions on which chemicals are the most appropriate for industrial uses are based on a number of factors including safety, environmen­tal and health risks, and industry and consumer needs. These are not matters that should be reg­ulated under the guise of homeland security.
  • Not impose criminal penalties for noncompli­ance. Criminal penalties are unnecessary and would overcriminalize federal regulatory codes. The Nuclear Regulatory Commission manages to oversee the stringent security at civilian nuclear reactors without having the authority to impose criminal penalties. Civil penalties, appropriately enforced, have proven reasonable for ensuring private-sector compliance with critical infrastructure security needs.
  • Harmonize requirements with the MTSA. Security at some chemical facilities is already regulated under the MTSA. Any additional leg­islation should ensure that these entities are not subjected to dual, competing federal security requirements. Facilities that have already gone through the expense and effort of complying with the MTSA should not be burdened with further requirements.
  • Provide a "safe harbor" for information shar­ing. To audit compliance and assess security, the DHS will need access to commercial infor­mation that is sensitive and proprietary. Con­gress should establish adequate protections that allow companies to share these data while safeguarding their legal rights and business practices and ensuring that terrorists are not given access to security-related information under the Freedom of Information Act.

Grading Congress. Congress has an opportu­nity to address a significant gap in homeland secu­rity by providing a framework for addressing the threat from terrorists who would use the chemical industry to attack Americans. A reasonable set of security standards that focuses on the greatest threats, similar to the measures already enforced in the maritime industry, makes sense; but these requirements need to be implemented with safe­guards that protect the private sector from undue burdens that would add little real security but would undermine competition, cost jobs, and make goods and services more expensive.

If Members of Congress follow the chemical security checklist, they will provide legislation that makes America safer while maintaining its economic competitiveness and free society. If they do not, they will produce a bill that is not worth passing.

James Jay Carafano, Ph.D., is Senior Research Fellow for National Security and Homeland Security in the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.

About the Author

James Jay Carafano, Ph.D. Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow