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Tuesday, October 4, 2011

Chemical Facility Security: Issues and Options for the 112th 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 112th Congress extended this authority through October 4, 2011. The 112th Congress debated the scope and details of reauthorization and continue to consider legislation 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 funding for chemical facility security exacerbate the tension between continuing current policies and changing the statutory authority.

The DHS is in the process of implementing the authorized regulations, called chemical facility anti-terrorism standards (CFATS). The DHS finalized CFATS regulations in 2007. No chemical facilities have completed 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 level of detail provided to DHS and the availability of inspectors, likely complicate the inspection process and lead to delays in inspection. Policymakers have questioned whether the compliance rate with the CFATS is sufficient to address this homeland security issue.

Key policy issues debated in previous Congresses contribute to the reauthorization debate. These issues include the adequacy of DHS resources and effort; 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 universe of facilities that should be considered as chemical facilities; and the role of inherently safer technologies in achieving security goals.

The 112th 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 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. Finally, Congress might choose to terminate the program by allowing its authority to lapse and removing funding for the program. This last approach would leave chemical facility security regulation to the discretion of state and local governments.

Both authorization and appropriation legislation in the 112th Congress addresses chemical facility security. The House-passed continuing resolution, H.R. 2608, would extend the existing authority until November 18, 2011. The Senate-reported and the House-passed FY2012 DHS appropriations act (H.R. 2017) would extend the existing authority until October 4, 2012. Authorizing legislation in the House includes H.R. 225; H.R. 901, ordered reported as amended by the House Committee on Homeland Security and referred to the House Committee on Energy and Commerce; H.R. 908, ordered reported as amended by the House Committee on Energy and Commerce; H.R. 916; H.R. 2890; S. 473, ordered reported as amended by the Senate Committee on Homeland Security and Governmental Affairs, and S. 709.

Date of Report: September 26, 2011
Number of Pages: 32
Order Number: R41642
Price: $29.95

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