The Department of Homeland Security (DHS) received 89 comments, dominated by industry, in response to the proposed interim rule on chemical plant security. The rule establishes the first-ever federal chemical security program. Chemical companies and industry associations generally expressed strong support for the rule, whereas most public interest groups and government officials expressed great concern.

OMB Watch has performed a preliminary analysis of the comments, grouping them into industry associations and companies (55); government officials and agencies (15); environmental and public interest organizations (9); unaffiliated members of the public (5); university researchers (3); and unions (2).

Industry Comments

Fifty-five industry associations and companies commented on the proposed rule. For the most part, they were supportive of the changes and, in particular, appreciative of the flexibility granted in meeting risk-based performance security standards. Some commenters expressed concerns over vague portions of the rule and asked for clarifications that would be beneficial for their industries. For instance, the American Petroleum Institute (API), an industry association representing approximately 400 oil and natural gas companies, stated that, "DHS must establish rules for 'high risk' facilities that threaten human health, national security, and/or economic security. If subjected to a terrorist attack, many API member company facilities would not likely pose any significant adverse impacts to human health, national security, or the economy. Therefore, API believes these facilities should not be designated as 'high risk'."

Government Comments

Fifteen government officials and agencies commented on the proposals. Most of these comments expressed great concern over the proposed rule. Many were worried that DHS's preemption provision would negatively impact state and local governments' ability to protect their populations from a chemical attack. The New Jersey Office of Homeland Security and Preparedness and the New Jersey Department of Environmental Protection stated, "It is also important not to penalize those pro-active states [that have implemented chemical security programs] and allow the states to retain the authority to adopt enhanced security requirements if states determine they are necessary."

Concerns were also expressed regarding the secrecy provisions of the proposed rule. Sen. Joseph Lieberman (I-CT), chairman of the Senate Homeland Security and Government Affairs Committee, commented that, "I am very concerned that these proposed rules do not strike the right balance and would instead lead to excessive secrecy that could damage, rather than promote, our security."

Public Interest, Union, and University Research Comments

Nine public interest organizations raised significant concerns with the proposed rule, as did comments from two unions and one law professor. Two additional comments from university researchers were submitted. One was neutral on DHS's rule, and the other included a mix of support for some provisions and opposition to other provisions. Public interest organizations expressed strong concern regarding the preemption provision and the rule's prevention of states from developing their own chemical security programs.

Also of concern were the secrecy provisions and DHS's refusal to consider safer technologies or procedures. OMB Watch and Public Citizen stated, "Instead of creating a new broad category of controlled information that could easily expand to include a wide variety of unintended health and safety information and slow sharing of important information, OMB Watch and Public Citizen recommend DHS identify a limited list of specific information that will be restricted from public access."

DHS is expected to review the 89 comments and finalize the interim rule by April 4. Given the interim nature of these regulations, it is possible that Congress may tackle the chemical security issue again this year and attempt to pass more comprehensive and permanent provisions.