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Tuesday, January 11, 2011

Chemical Facility Security: Reauthorization, Policy Issues, and Options for 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. This authority expires in March 2011. The 111th Congress took action to extend this program and debated the scope and details of reauthorization. Some members of Congress supported an extension, either short or long term, of the existing authority. Other members called for revision and more extensive codification of chemical facility security regulatory provisions. The tension between continuing and changing the statutory authority was exacerbated by questions regarding the current law’s effectiveness in reducing chemical facility risk and the sufficiency of federal funding for chemical facility security.

Key policy issues debated in previous Congresses contributed to the reauthorization debate. These issues included the universe of facilities that should be considered as chemical facilities; 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; and the role of inherently safer technologies.

The 112
th Congress may take various approaches to this issue. Congress might allow the statutory authority to expire. Congress might permanently or temporarily extend the expiring statutory authority in order to observe the impact of the current regulations and, if necessary, address any perceived weaknesses at a later date. Congress might codify the existing regulation 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.

In the 111
th Congress, The Department of Homeland Security Appropriations Act, 2010 (P.L. 111- 83) extended the existing statutory authority through October 4, 2010, and provided DHS with additional chemical facility security funding relative to FY2009. The Continuing Appropriations Act, 2011 (P.L. 111-242) extended the statutory authority through December 3, 2010. P.L. 111- 290 extended the statutory authority through December 18, 2010. P.L. 111-317 extended the statutory authority through December 21, 2010. P.L. 111-322 extended the statutory authority through March 4, 2011. The House of Representatives passed H.R. 2868, an authorization bill which addresses chemical facility, water treatment facility, and wastewater treatment facility security. This legislation included provisions of H.R. 3258 and H.R. 2883. H.R. 2868 was reported with an amendment in the nature of a substitute by the Senate Committee on Homeland Security and Governmental Affairs. The Senate-reported bill differed significantly from the House-passed version.

Members introduced other bills in the 111
th Congress to address security at chemical facilities and other facilities that possess chemicals. S. 2996/H.R. 5186 would have extended the existing authority until October 4, 2015, and established chemical security training and exercise programs. H.R. 2477 would have extended the existing statutory authority until October 1, 2012. H.R. 261 and S. 3599 would have altered the existing authority. S. 3598 would have authorized EPA to establish certain risk-based security requirements for wastewater facilities. In addition, draft legislation was reportedly under development by the Department of Homeland Security.

Date of Report: December 23, 2010
Number of Pages: 27
Order Number: R40695
Price: $29.95

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