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Wednesday, November 27, 2013

Chemical Facility Security: Issues and Options for the 113th Congress

Dana A. Shea
Specialist in Science and Technology Policy

The Department of Homeland Security (DHS) has statutory authority to regulate chemical facilities for security purposes. The 113
th Congress extended this authority through January 15, 2014. Congressional policymakers have debated the scope and details of reauthorization and continue to consider establishing an authority with longer duration. Some Members of Congress support an extension, either short- or long-term, of the existing authority. Other Members call for revision and more extensive codification of chemical facility security regulatory provisions. Questions regarding the current law’s effectiveness in reducing chemical facility risk and the sufficiency of federal chemical facility security efforts exacerbate the tension between continuing current policies and changing the statutory authority.

Congressional policymakers have questioned DHS’s effectiveness in implementing the authorized  regulations, called chemical facility anti-terrorism standards (CFATS). The DHS finalized CFATS  regulations in 2007. Since then, 348 chemical facilities have been approved in the CFATS process, which starts with information submission by chemical facilities and finishes with inspection and approval of facility security measures by DHS. Several factors, including the amount of detailed information provided to DHS, the effectiveness of DHS program management, and the availability of CFATS inspectors, likely complicate the inspection process and lead to delays in inspection. Policymakers have questioned whether the compliance rate with CFATS is sufficient to mitigate this homeland security risk.

Key policy issues debated in previous Congresses contribute to the current reauthorization debate.  These issues include the adequacy of DHS resources and efforts; the appropriateness and scope of  federal preemption of state chemical facility security activities; the availability of information for  public comment, potential litigation, and congressional oversight; the range of chemical facilities  identified by DHS; and the ability of inherently safer technologies to achieve security goals.

The 113
th Congress might take various approaches to this issue. Congress might allow the statutory authority to expire but continue providing appropriations to administer the regulations. Congress might permanently or temporarily extend the statutory authority to observe the impact of the current regulations and, if necessary, address any perceived weaknesses at a later date. Congress might codify the existing regulations in statute and reduce the discretion available to the Secretary of Homeland Security to change the current regulatory framework. Alternatively, Congress might substantively change the current regulation’s implementation, scope, or impact by amending the existing statute or creating a new one. Finally, Congress might choose to terminate the program by allowing its authority to lapse and removing funding for the program. This would leave regulation of chemical facility security to state and local governments.

Date of Report: November 15, 2013
Number of Pages: 46
Order Number: R42918
Price: $29.95

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Wednesday, November 20, 2013

Internet Governance and the Domain Name System: Issues for Congress

Lennard G. Kruger
Specialist in Science and Technology Policy

The Internet is often described as a “network of networks” because it is not a single physical entity, but hundreds of thousands of interconnected networks linking hundreds of millions of computers around the world. As such, the Internet is international, decentralized, and comprised of networks and infrastructure largely owned and operated by private sector entities. As the Internet grows and becomes more pervasive in all aspects of modern society, the question of how it should be governed becomes more pressing.

Currently, an important aspect of the Internet is governed by a private sector, international organization called the Internet Corporation for Assigned Names and Numbers (ICANN), which manages and oversees some of the critical technical underpinnings of the Internet such as the domain name system and Internet Protocol (IP) addressing. ICANN makes its policy decisions using a multistakeholder model of governance, in which a “bottom-up” collaborative process is open to all constituencies of Internet stakeholders.

National governments have recognized an increasing stake in ICANN policy decisions, especially in cases where Internet policy intersects with national laws addressing such issues as intellectual property, privacy, law enforcement, and cybersecurity. Some governments around the world are advocating increased intergovernmental influence over the way the Internet is governed. For example, specific proposals have been advanced that would create an Internet governance entity within the United Nations (U.N.). Other governments (including the United States), as well as many other Internet stakeholders, oppose these proposals and argue that ICANN’s multistakeholder model, while not perfect and needing improvement, is the most appropriate way to govern the Internet.

Currently, the U.S. government, through the National Telecommunications and Information Administration (NTIA) at the Department of Commerce, enjoys a unique influence over ICANN, largely by virtue of its legacy relationship with the Internet and the domain name system. A key issue for the 113
th Congress is whether and how the U.S. government should continue to maximize U.S. influence over ICANN’s multistakeholder Internet governance process, while at the same time effectively resisting proposals for an increased role by international governmental institutions such as the U.N. An ongoing concern is to what extent will future intergovernmental telecommunications conferences (such as the December 2012 World Conference on International Telecommunications or WCIT) constitute an opportunity for some nations to increase intergovernmental control over the Internet, and how effectively will NTIA and other government agencies (such as the State Department) work to counteract that threat? H.R. 1580, introduced on April 16, 2013, states that “[I]t is the policy of the United States to preserve and advance the successful multistakeholder model that governs the Internet.”

The ongoing debate over Internet governance will likely have a significant impact on how other aspects of the Internet may be governed in the future, especially in such areas as intellectual property, privacy, law enforcement, Internet free speech, and cybersecurity. Looking forward, the institutional nature of Internet governance could have far-reaching implications on important policy decisions that will likely shape the future evolution of the Internet.

Date of Report: November 13, 2013
Number of Pages: 26
Order Number: R42351
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Thursday, November 14, 2013

Tailoring the Patent System for Specific Industries

John R. Thomas
Visiting Scholar

Congressional interest in the patent system has been demonstrated by the enactment of the Leahy- Smith America Invents Act (AIA) in the 112
th Congress. Most of the provisions of the AIA apply to any type of patented invention, whether it consists of a chemical compound, mechanical device, electrical circuit, or other technology. However, other AIA provisions are specific to particular types of inventions, including business methods, tax strategies, and human organisms. The AIA reflects the principle that, for the most part, patentable inventions are generally subject to the same statutory provisions. However, a number of exceptions exist to this concept of technological neutrality.

This blended architecture has for many years prompted inquiry into whether the patent system operates best as a uniform system that applies neutrally to all inventions, or whether it could or should be tailored to meet the specific needs of different industries. Technologies and industrial sectors arguably differ in ways salient to the patent system. Among these distinctions are the costs and risks of research and development, the availability of trade secret protection as an effective alternative to patenting, the number of patents that cover a particular product, and the patterns of patent acquisition and enforcement of firms within that sector. The patent system involves a number of parameters that could potentially be adjusted to meet the needs of individual sectors, including the speed with which applications are reviewed, the scope of exclusive rights afforded by a patent, and the term of the patent.

While some observers suggest the desirability of sector-specific patent principles, others believe them to be infeasible and unwise. They observe that legislative efforts to define particular industries may prove difficult, that attorneys may sometimes be able to draft patents artfully so as to fall within a favored category, and that U.S. industry is dynamic and resistive to a static statutory definition. In addition, U.S. membership within the World Trade Organization (WTO) may limit the ability to tailor the patent system to account for different industries and inventions, to the extent that compliance with WTO standards is desired. The WTO-administered Agreement on Trade-Related Aspects of Intellectual Property, or TRIPS Agreement, in part requires WTO member states to make patent rights available without discrimination as to the field of technology. The TRIPS Agreement admits some exceptions exist to this principle of technological neutrality, however.

Should Congress believe current circumstances to be appropriate, then no action need be taken. To the degree WTO compliance is desired, Congress could also legislate along the lines permitted by the TRIPS Agreement. Notably, although the TRIPS Agreement generally disallows discrimination with respect to technological fields, it permits distinctions on other grounds. Congress could also make use of regulatory exclusivities and other complementary intellectual property rights that the TRIPS Agreement regulates less heavily.

Date of Report: October 29, 2013
Number of Pages: 16
Order Number: R43264
Price: $29.95

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