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Guest Column: Infrastructure Protection v.2.0 – Forward to the Past?

For most of a decade, the federal approach to protecting critical infrastructure was almost entirely voluntary. It is now clear that last year’s legislation to implement recommendations of the 9/11 Commission – H.R. 1 – marked a philosophical turning point toward regulation

Beginning with efforts to prevent Y2K failures, the Departments of Commerce, Justice and ultimately Homeland Security worked with varying degrees of success to create or liaise with organizations representing private sector infrastructures. Through entities like "Sector Coordinating Councils," the feds pushed companies to assess vulnerabilities, take protective actions and share their findings.

Until 2006, Congress enacted only two conventional regulatory programs for critical infrastructure, both in 2002. One charged EPA to oversee drinking water security; the other tasked the Coast Guard with regulating security at vessels, ports and facilities with docks.

But the uncertainty of that election year broke a post-9/11 deadlock over regulation of chemical plant security. In the FY07 DHS spending bill, Congress included a spare provision requiring "high-risk" facilities to assess vulnerabilities, prepare security plans and implement security measures. Facilities will be assigned to risk-based tiers and required to choose security measures meeting performance criteria for their tiers. DHS can approve "alternative security programs" (ASPs) equivalent to its requirements. DHS is now in the process of implementing these "Chemical Facility Anti-Terrorism Standards," a.k.a. "CFATS."

This legislation evidently overrode a psychological barrier within Congress, for in H.R. 1 it applied the CFATS model to both railroads and "over the road" bus companies. "High-risk" carriers will be sorted by DHS into risk-based tiers and required to conduct vulnerability assessments, develop security plans and implement security measures. ASPs can be approved. Congress also transformed a pending DOT rulemaking to collect rail routing data into a mandate that DOT regulate the routing of hazardous materials by rail – a potentially staggering task.

H.R. 1 also started DHS down the road of regulating the security of truck hazmat transport, calling for DHS to conduct a risk assessment and report back to it. DOT and TSA must also report to Congress on any needed changes to current routing criteria for hazmat trucks. Finally, H.R. 1 instructed DHS to implement a plan for assessing the conformance of natural gas and hazardous liquid pipelines with criteria previously established by DOT. DHS is also blankly authorized to issue "such regulations" as "are appropriate."

Since H.R. 1, the House Homeland Security Committee has reported a bill (H.R. 5577) to make CFATS even tougher, and Congress has passed legislation requiring DHS to regulate the sale of ammonium nitrate. As others have noted, this legislation could easily become a model for regulating transactions involving other hazardous chemicals.

H.R. 1 sets deadlines for most of the actions discussed above, beginning with a proposed rule on rail routing. Whether these new programs tend toward traditional command & control or something more innovative – and whether they will spawn more of the same – will be among the more important homeland security questions of the coming years.

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James W. Conrad, Jr. is Principal of Conrad Law & Policy Counsel, of Washington, DC, where he provides regulatory and legislative representation in the areas of homeland security, environmental law and science policy. Conrad can be reached at:

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