[Senate Report 109-332]
[From the U.S. Government Publishing Office]
109th Congress Report
SENATE
2d Session 109-332
_______________________________________________________________________
Calendar No. 495
SENATE 109-332
CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2006
__________
R E P O R T
OF THE
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
CONFERENCE REPORT deg.
To accompany
S. 2145
together with
ADDITIONAL VIEWS
TO ENHANCE SECURITY AND PROTECT AGAINST TERRORIST ATTACKS AT CHEMICAL
FACILITIES
DATE deg.September 11, 2006.--Ordered to be printed
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia
Michael D. Bopp, Staff Director and Chief Counsel
Allison J. Boyd, Counsel
Michael L. Alexander, Minority Staff Director
Holly A. Idelson, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 495
109th Congress Report
SENATE
2d Session 109-332
======================================================================
CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2006
_______
September 11, 2006.--Ordered to be printed
_______
Ms. Collins, from the Committee on Homeland Security and Government
Affairs, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 2145]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2145) to enhance
security and protect against terrorist attacks at chemical
facilities, having considered the same, reports favorably
thereon as amended and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary.............................................1
II. Background and Need for Legislation.............................2
III. Discussion of Legislation......................................17
IV. Legislative History............................................29
V. Section-by-Section Analysis....................................34
VI. Congressional Budget Office Cost Estimate......................47
VII. Changes in Existing Law........................................54
VIII. Additional Views...............................................55
I. PURPOSE AND SUMMARY
The purpose of S. 2145 is to enhance security and protect
against terrorist attacks at chemical facilities. Among other
things, S. 2145 gives the Department of Homeland Security (DHS)
new authority to regulate the security of chemical facilities
across the United States. The bill takes an integrated approach
to security, comprehensively addressing vulnerabilities,
threats, and consequences of a terrorist attack on a chemical
facility.
The bill gives DHS discretion to regulate the Nation's at-
risk chemical facilities. Under the bill, DHS would designate a
facility for regulation only after a consideration of risk-
based factors such as the perceived threat to the facility; the
potential extent and likelihood of death or injury,
environmental harm, and economic loss that could result from a
terrorist attack on the facility; the proximity of the facility
to population centers; the nature and quantity of the chemical
substance of concern at the facility; and the threat to
economic and national security and critical infrastructure. The
bill also requires DHS to place the designated facilities into
risk-based tiers, so that the facilities of greatest concern
from a security standpoint are required to put forward the
greatest effort to reduce the risk of an attack on those
facilities. All covered facilities must complete or update
vulnerability assessments, security plans, and emergency
response plans, and must submit these assessments and plans to
DHS for approval. The Secretary must approve or disapprove all
assessments and plans.
The bill requires that vulnerability assessments and
security plans be both risk-based and performance-based.
The bill's risk-based approach requires security measures
at a given facility to be proportional to the threat,
vulnerabilities, and consequences of a potential terrorist
attack at that facility. Therefore, the greater the risk of a
potential terrorist attack on a particular facility, the
greater the security measures required at that facility to
protect against such an attack or to mitigate its consequences.
Requiring performance-based standards means a facility
governed by the bill can choose the most economical and
effective means of addressing the vulnerabilities to, and the
threat and consequence of, a terrorist attack on that
particular facility. The Department is required to set
performance standards for each risk-based tier.
If DHS determines that a covered facility has not complied
with the regulations or with an order issued under the bill,
DHS may enforce those regulations and orders through a variety
of mechanisms, including civil and criminal penalties, and
issuing an order to a facility to cease operations.
The Department is directed to create an office for chemical
security and a regional and area structure for implementing the
bill. The bill exempts protected information from disclosure
under the Federal Freedom of Information Act (FOIA), and any
State or local law providing for public access to information.
The Secretary of Homeland Security is specifically authorized
to regulate the handling and purchase of ammonium nitrate. The
bill sets a uniform Federal standard for chemical security
regulation, while preserving the right of State and local
governments to adopt chemical security requirements more
stringent than the Federal standard, provided that the state or
local standard does not actually conflict with the Federal
standard.
II. BACKGROUND AND NEED FOR LEGISLATION
Background
When al Qaeda terrorists hijacked commercial airplanes to
attack American office buildings, it became clear that the
United States' new enemy would target our infrastructure as
well as seeking to inflict mass casualties. Indeed, few
scenarios loom more ominously than terrorists leveraging a
facility storing deadly chemicals against us. The potential
devastation from a terrorist attack on a chemical facility was
demonstrated on December 3, 1984, when poisonous cyanide gas
was accidentally released from a pesticides plant in Bhopal,
India, killing thousands within a few hours. A terror attack on
such a facility would presumably be designed to take an even
greater human toll.
International and domestic terrorists have had U.S.
chemical facilities in their cross-hairs for at least a
decade.\1\ Terrorists have aimed not only to target facilities
directly, but also to steal chemicals from facilities for
nefarious purposes. One of the 1993 World Trade Center bombers,
Nidal Ayyad, was employed as a chemical engineer and used
company stationery to order the chemical ingredients to make
the bomb. Testimony at the bombers' trial indicated that they
had also stolen cyanide from a chemical facility and were
planning to introduce it into the ventilation system of office
buildings.\2\
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\1\ Congressional Research Service, ``Chemical Facility Security,''
August 2, 2006, at 4.
\2\ Id.
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For years, the Federal government's law enforcement and
intelligence community has been sounding the alarm regarding
the terrorist threat to the chemical sector. The Department of
Justice ``has been warning of the terrorist threat to such
facilities for a number of years,'' and the Justice
Department's ``risk assessment in 2000, conducted at the
direction of the President and pursuant to the Clean Air Act,
concluded in no uncertain terms that chemical facilities
present attractive targets for terrorists.'' \3\ Justice
``concluded that the risk of terrorists attempting in the
foreseeable future to cause an industrial chemical release is
both real and credible.'' \4\ In 2003, the Justice Department
informed GAO about two attempts to attack chemical facilities
in the late 1990s, including a 1998-99 episode where ``domestic
terrorists plotted to use a destructive device against a
facility outside of Sacramento which housed millions of gallons
of propane.'' \5\ Moreover, in testimony from the Director of
the Central Intelligence Agency on February 6, 2002, George
Tenet warned of the potential for a terrorist attack on a
chemical facility by al Qaeda.\6\
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\3\ Letter from Paul Corts, Assistant Attorney General for
Administration, U.S. Department of Justice, to John Stephenson,
Director, Natural Resources and Environment, GAO, Feb. 28, 2003, at 2.
\4\ Id.
\5\ Letter from Paul Corts, Assistant Attorney General for
Administration, U.S. Department of Justice, to John Stephenson,
Director, Natural Resources and Environment, GAO, Feb. 28, 2003, at 2.
\6\ Id.; GAO, Homeland Security: Voluntary Initiatives Are Under
Way at Chemical Facilities, But the Extent of Security Preparedness Is
Unknown, Mar. 2003, GAO-03-439, at 9.
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Many security experts, including Richard Falkenrath, at a
January 2005 Committee hearing, have identified chemical
facilities as an especially vulnerable target. Falkenrath
described terrorists' ability to exploit inadequately secured
systems within the United States, as exemplified by the use of
passenger aircraft on 9/11. Chemical facilities, Falkenrath
said, were acutely vulnerable and uniquely dangerous--surpassed
in danger only by threats such as nuclear devices and
bioterrorism.\7\
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\7\ The Department of Homeland Security: The Road Ahead: Hearing
Before the Senate Comm. on Homeland Security and Governmental Affairs,
109th Cong. 29, 114-15 (2005) (testimony of Richard Falkenrath).
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Despite the abundance of evidence and warnings, the
government has taken little action. In 2003, GAO reported that
``Chemical facilities may be attractive targets for terrorists
intent on causing massive damage.'' \8\ The EPA has cataloged
some 15,000 facilities in the United States that manufacture,
use or store hazardous chemicals under its Clean Air Act Risk
Management Program (RMP). Using the EPA's RMP data, GAO noted
that 123 chemical facilities in the United States have worst-
case scenarios in which a toxic release could potentially
threaten at least 1,000,000 people if attacked.\9\ The
Department of Homeland Security uses a different methodology,
but still has identified 3,400 facilities that could affect
more than 1,000 people if attacked.\10\ In creating its list of
high risk chemical facilities, DHS started with the EPA's RMP
list, and reduced it by eliminating facilities that were
redundant, ``were no longer in business or were no longer RMP
facilities * * * were the responsibility of another critical
infrastructure sector,'' and agricultural facilities.\11\
According to DHS, of the 3,400 facilities on its list, 272
facilities could potentially affect more than 50,000
people.\12\ GAO reported that no Federal law explicitly
required chemical facilities to ``assess vulnerabilities or
take security actions to safeguard their facilities against
terrorist attack,'' and that the Federal government ``has not
comprehensively assessed the chemical industry's
vulnerabilities to terrorist attacks.'' \13\
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\8\ GAO, Homeland Security: Voluntary Initiatives Are Under Way at
Chemical Facilities, But the Extent of Security Preparedness is
Unknown, Mar. 2003, GAO-03-439, at 3.
\9\ Id. At 9-10 (citing EPA, Chemical Accident Risks in U.S.
Industry--A Preliminary Analysis of Accident Risk Data from U.S.
Hazardous Chemical Facilities, Sept. 25, 2000).
\10\ GAO, Homeland Security: DHS Is Taking Steps to Enhance
Security at Chemical Facilities, but Additional Authority Is Needed,
Jan. 2006, GAO-06-150, at 22.
\11\ Id. at 21.
\12\ Id. at 22; Is the Federal Government Doing Enough to Secure
Chemical Facilities and Is More Authority Needed: Hearing Before the
Senate Comm. on Homeland Security and Governmental Affairs, 109th Cong.
(2005) (testimony of Robert Stephan).
\13\ Id. at 4.
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Also in 2003, GAO acknowledged the voluntary work of the
chemical industry to enhance security at its facilities,
particularly that of the American Chemistry Council (ACC),
which requires members to conduct security vulnerability
assessments and implement security improvements.\14\ Yet ACC
members represent only a fraction of the chemical sector. GAO
stated: ``Despite the voluntary industry initiatives to date,
the extent of security preparedness across the chemical
industry is unknown,'' and ``both the Secretary of Homeland
Security and the Administrator of the EPA have stated that
voluntary efforts alone are not sufficient to assure the public
of the industry's preparedness.'' \15\ GAO therefore
recommended in 2003 that DHS and EPA develop a comprehensive
national chemical security strategy.\16\
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\14\ Id. at 5.
\15\ Id. at 5, 23.
\16\ Id. at 5.
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GAO repeated these conclusions the next year in testimony
before a House subcommittee, stating, ``Experts agree that the
Nation's chemical facilities may be attractive targets for
terrorists intent on causing massive damage, but the extent of
security preparedness since the events of September 11, 2001,
is unknown.'' \17\ A year later, there was still no legal
provision for Federal regulation of chemical sector security,
and still no comprehensive Federal assessment of chemical
facility security.\18\
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\17\ GAO, Homeland Security: Federal Action Needed to Address
Security Challenges at Chemical Facilities, Feb. 23, 2004, GAO-04-482T,
at 2 (testimony of John B. Stephenson, Director, Natural Resources and
Environment, GAO, before the Subcommittee on National Security,
Emerging Threats, and International Relations, Committee on Government
Reform, U.S. House of Representatives).
\18\ Id. at 3, 8-11.
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Also in 2004, the CBS News television magazine ``60
Minutes'' focused on chemical security. The news show spoke
with an investigative reporter at the Pittsburgh Tribune-
Review, who examined 60 plants in Chicago, Pittsburgh,
Baltimore and Houston, and walked into them without difficulty.
``We found gates unlocked or wide open, dilapidated fences, and
unprotected tanks filled with deadly chemicals,'' the ``60
Minutes'' reporter said of the facilities he examined in
Chicago and California. Former Senator Warren Rudman, co-author
of the blue ribbon task force on homeland security, told ``60
Minutes'' that chemical security is an ``extraordinarily
serious problem,'' and recommended that Congress authorize DHS
to set and enforce chemical security standards.\19\
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\19\ Steve Kroft, ``Chemical Plant Insecurity; Concern Over
Terrorist Access to U.S. Chemical Plants,'' 60 Minutes, Jun. 13, 2004
(transcript).
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In January 2005, Richard Falkenrath of the Brookings
Institution urged Congress to give DHS the authority to
regulate the security of the Nation's at-risk chemical
facilities, when he testified before the Committee's hearing,
``The Department of Homeland Security: The Road Ahead.'' He
cited that one acute and ``almost uniquely dangerous'' threat,
``toxic-by-inhalation industrial chemicals.'' \20\ The impact
of destroying certain chemical facilities, he said, could only
be rivaled by an improvised nuclear device.\21\ He criticized
the Federal government for having made ``no material reduction
in the inherent vulnerability of hazardous chemical targets
inside the United States,'' and recommended that ``doing so
should be the highest critical infrastructure protection
priority for the Department of Homeland Security in the next
two years.'' \22\
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\20\ The Department of Homeland Security: The Road Ahead: Hearing
Before the Senate Comm. on Homeland Security and Governmental Affairs,
109th Cong. 29, 114-15 (2005) (testimony of Richard Falkenrath).
\21\ Id.
\22\ Id.
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The Department's ``National Strategy for Security of the
Chemical Sector'' report, issued in May 2006, noted, ``Chemical
facilities in the U.S. are ubiquitous and represent potentially
attractive targets for a terrorist adversary. Because the
potential for inflicting casualties and economic damage by
attacking a chemical facility is relatively high, the U.S. will
continually be concerned with Chemical Sector security.'' \23\
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\23\ National Strategy for Securing the Chemical Sector: A Report
to the Committees on Appropriations of the United States Senate and
House of Representatives, The U.S. Department of Homeland Security,
April 2006, at 3. Although the cover of the report notes date of
issuance as ``April 2006,'' the report was actually delivered to the
Committees on Appropriations in May 2006.
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Statutory authority
Five years after the attacks of September 11, 2001, the
Federal government lacks the statutory authority to
comprehensively regulate the security of chemical facilities in
the United States. Instead, the Federal government is
authorized to regulate only segments of the chemical sector,
creating a patchwork of regulation that has left far too many
facilities completely unregulated. For example, DHS and the
Department of Transportation have broad statutory authority to
regulate the transportation of hazardous materials, but lack
the authority to regulate their security when stored at most
stationary facilities. Further, a small portion of chemical
facilities are subject to two post-9/11 Federal statutes that
specifically address the security concerns: the Maritime
Transportation Security Act (MTSA), P.L. 107-295, and the
Public Health Security and Bioterrorism Preparedness and
Response Act of 2002 (Bioterrorism Act), P.L. 107-188.
Under MTSA, the U.S. Coast Guard--a component of DHS--
regulates chemical facilities that are located along navigable
waterways and receive shipments via vessels. Under MTSA, the
Coast Guard has reviewed 3,000 facility security plans and has
jurisdiction over approximately 300 chemical and petrochemical
facilities.\24\ Under the Bioterrorism Act, the EPA regulates
security at community water systems. The Bioterrorism Act
covers 8,400 of the largest water facilities in the United
States. Both statutes require vulnerability assessments and the
creation of or updating of emergency response plans. However,
only MTSA requires facilities to submit security plans and
install security measures; the Bioterrorism Act does not
require a specific security plan or security measures. Further,
MTSA provides for an ongoing security regime; the Bioterrorism
Act requires that the assessments and plans be maintained for
five years, but gives no clear guidance after that.
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\24\ Chemical Facility Security: What is the Appropriate Federal
Role?: Hearing Before the Senate Comm. On Homeland Security and
Governmental Affairs, 109th Cong. 16, 53 (2005) (testimony of Rear
Admiral Craig E. Bone, Director of Port Security, Marine Safety,
Security, and Environmental Protection Directorate, U.S. Coast Guard,
and Bob Slaughter, President, National Petrochemical and Refiners
Association).
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The Homeland Security Act of 2002 (HSA), P.L. 107-296, also
provides some authority with respect to the Department's
critical infrastructure protection mission, but the HSA does
not specifically address chemical facility security. While it
authorizes DHS to analyze vulnerabilities and to recommend
measures to protect the critical infrastructure of the United
States, of which the chemical sector is a part, it does not
authorize DHS to mandate the submission of plans or the
installation of any security measures. At the moment, DHS has
no power to require these facilities to implement security
enhancements.
While the chemical industry has made some notable voluntary
efforts to enhance security at chemical facilities, there is no
comprehensive architecture of security across the chemical
sector. As noted above, the Department itself, in testimony
before the Committee given by Assistant Secretary Bob Stephan,
noted that 20 percent of the 3,400 facilities deemed by the
Department to be high risk are not participating in any kind of
measurable voluntary code.\25\
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\25\ Is the Federal Government Doing Enough to Secure Chemical
Facilities and Is More Authority Needed: Hearing Before the Senate
Comm. On Homeland Security and Governmental Affairs, 109th Cong.
(2005)(statement of Robert Stephan).
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As early as 2002, the Administration called for legislation
to regulate the chemical sector.\26\ In 2003 and again in 2004,
the President publicly stated his support for chemical security
legislation, stating ``we're working with Congress on new
legislation that establishes uniform standards for securing
chemical sites, and gives DHS the power to enforce those
standards.'' \27\ Robert Stephan, then Acting Under Secretary
for Information Analysis and Infrastructure Protection,
testified before the Committee in June 2005, saying Secretary
Chertoff had concluded new regulatory authority was needed to
secure the Nation's chemical facilities.\28\ On March 21, 2006,
Secretary Chertoff gave a speech on chemical security at a
George Washington University-American Chemistry Council-
sponsored event, asking for legislation that would grant DHS
the authority to require security at chemical facilities to be
enacted this year. Furthermore, the Department issued a
``National Strategy for Security of the Chemical Sector'' in
May, noting, ``legislation that would provide the Department of
Homeland Security with overarching regulatory authority for
Chemical Sector security should be enacted.'' \29\ The
Department stated in the National Strategy that ``the lack of
regulatory authority regarding chemical facility security is a
serious impediment to the achievement of its vision and goals
for the sector. Without regulatory authority, the Federal
government will largely be forced to rely on voluntary
performance by sector security partners, and will be extremely
limited in its ability to ensure that facilities are meeting
minimum performance standards commensurate with their level or
risk.'' \30\ The President's FY07 budget proposal for the
Department included a $10 million request for the creation of a
chemical security office which would establish standards and
ensure strong safeguards are in place to reduce the
vulnerability of the chemical industry critical infrastructure
from acts of terrorism.
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\26\ Thomas J. Ridge & Christine Todd Whitman, A Security
Requirement, The Washington Post, October 6, 2002, at B6.
\27\ ``President Marks Homeland Security's Accomplishments at Year
One,'' Washington, DC, March 2, 2004. The President's expression of
support for legislation was worded virtually the same and occurred
during an address at the FBI Academy in Quantico, Virginia, on
September 10, 2003.
\28\ Is the Federal Government Doing Enough to Secure Chemical
Facilities and Is More Authority Needed: Hearing Before the Senate
Comm. On Homeland Security and Governmental Affairs, 109th Cong. (2005)
(statement of Robert Stephan).
\29\ National Strategy for Securing the Chemical Sector: A Report
to the Committees on Appropriations of the United States Senate and
House of Representatives, The U.S. Department of Homeland Security,
April 2006, at 8.
\30\ National Strategy for Securing the Chemical Sector: A Report
to the Committees on Appropriations of the United States Senate and
House of Representatives, The U.S. Department of Homeland Security,
April 2006, at 8-9.
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Hearings
Four hearings held by this Committee showcased not only the
threat to the chemical sector, but also the need for Federal
legislation granting DHS the authority to regulate the security
of the nation's at-risk chemical facilities.
On April 27, 2005, Chairman Collins convened the first of
the four hearings. At that time, there had been no national
strategy for chemical facilities. This hearing, ``Chemical
Attack on America: How Vulnerable Are We?,'' highlighted the
vulnerability of thousands of largely unprotected chemical
facilities nationwide. The series of hearings would examine the
complex issue of chemical facility security, and determine
whether the risk of a terrorist attack warrants a legislative
solution.\31\ The Committee noted that chemical security has
not received the attention it deserves, given the
vulnerabilities involved and called on the Administration to
work with it on a bipartisan basis in order to help pass
effective legislation this session of Congress.\32\
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\31\ Chemical Attack on America: How Vulnerable Are We?: Hearing
Before the Senate Comm. on Homeland Security and Governmental Affairs,
109th Cong. 1 (2005) (statement of Sen. Susan M. Collins).
\32\ Id. at 4 (statement of Sen. Joseph I. Lieberman).
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Witnesses at the hearing were then-Senator Jon Corzine,
Carolyn Merritt of the U.S. Chemical Safety and Hazard
Investigation Board (CSB), John Stephenson of the U.S.
Government Accountability Office, Richard Falkenrath of the
Brookings Institution and Stephen Flynn of the Council on
Foreign Relations.
The consensus among the witnesses was that the chemical
sector was vulnerable to a deadly attack. Security experts
Flynn and Falkenrath, detailed the potential consequences of an
attack on a chemical facility located in or near a high-density
population center and storing massive quantities of extremely
hazardous chemicals. Flynn described these facilities as the
military equivalent of a poorly guarded weapon of mass
destruction.\33\ Falkenrath noted in his written testimony,
``Of all the various remaining civilian vulnerabilities in
America today, one stands alone as uniquely deadly, pervasive
and susceptible to terrorist attack: toxic-inhalation-hazard
industrial chemicals.'' \34\ The GAO's John Stephenson echoed
the remarks of Flynn and Falkenrath, stating that experts agree
chemical facilities are an attractive target for
terrorists.\35\
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\33\ Id. at. 22 (testimony of Stephen E. Flynn).
\34\ Id. at 83 (written testimony of Richard Falkenrath).
\35\ Id. at 62 (written testimony of John Stephenson).
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Despite the clear danger presented by certain chemical
facilities, the CSB's Carolyn Merritt testified that too many
high-risk facilities continue to repeat the mistakes of Bhopal,
leaving their plants vulnerable. She testified about her
investigations of accidental chemical releases across the
Nation revealed serious gaps in the preparations for major
chemical releases by companies, emergency responders,
government authorities and the public. She testified that the
CSB regularly finds deficiencies similar to those at Bhopal at
major accidental incidents in this country, including failure
to prepare the public for chemical emergencies. It was the lack
of preparation that made the Bhopal accident particularly
devastating, adding to the casualties--something she said can
be mitigated with better preparedness and response efforts.\36\
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\36\ Id. at 14-16, 25-26 (testimony of Carolyn Merritt).
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The witnesses also found that neither the chemical industry
nor the Federal government had done enough to secure the
potentially most deadly facilities. Stephenson stated that
despite efforts by DHS to assess facility vulnerabilities, no
comprehensive security assessment has been conducted
nationwide, and that there are no Federal requirements that
comprehensively address security at the Nation's chemical
facilities.\37\ Testimony indicated the Federal government had
not done enough to reduce the vulnerability of chemical
facilities, nor did it have the authority to do so.\38\
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\37\ Id. at 63-64 (written testimony of John Stephenson).
\38\ Id. at 48 (written testimony of Sen. Jon Corzine).
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The witnesses agreed that Congress should authorize the
Federal government to regulate the security of the Nation's at-
risk chemical facilities.\39\ Falkenrath stated that a
voluntary regime will not succeed: ``It is a fallacy to think
that profit-maximizing corporations engaged in a trade as
inherently dangerous as the manufacture and shipment of * * *
chemicals will ever voluntarily provide a level of security
that is appropriate given the larger external risk to society
as a whole.'' \40\ Stephenson recommended that, even in the
absence of legislation, the Federal government should develop a
national strategy for chemical security.\41\
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\39\ Id. at 26-29 (testimony of Falkenrath, Flynn, Merritt,
Stephenson).
\40\ Id. At 87 (written testimony of Falkenrath).
\41\ Id. at 64 (written testimony of John Stephenson).
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Flynn stated that decisions about adequate security require
threat information, which is typically controlled by the
government. Without intelligence about threats, chemical
companies are only making their best guess as to how much
security to invest in. But the government, he added, has yet to
develop the underlying intelligence necessary for facilities to
assess their security on the basis of threat information alone,
forcing decisionmakers to assess and enhance security on the
basis of potential consequences of an attack on a facility.\42\
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\42\ Id. at 35 (testimony of Flynn).
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Falkenrath testified that toxic-by-inhalation chemicals,
such as chlorine and ammonia, are uniquely deadly, pervasive
and susceptible to terrorist attack. He felt that there has
been little progress made since 9/11 to secure chemical
facilities. He outlined a regulatory approach that includes six
parts: (1) a comprehensive inventory of all facilities; (2)
mandatory, graduated Federal standards for security; (3) a
certification procedure; (4) a verification procedure; (5) a
compliance procedure; and (6) an appeals procedure.\43\
Falkenrath recommended that legislation include strong
enforcement mechanisms, such as civil and criminal penalties,
including the possibility of putting a facility out of
business.\44\ He also stressed the importance of placing the
facilities into different risk-based tiers, placing greater
requirements on the facilities assigned to the tiers of
greatest risk.\45\ Falkenrath explained that the tier-system
would provide an incentive for facilities to enhance their
security, so that they could fall to a lower risk tier and
therefore be subject to fewer Federal mandates.\46\
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\43\ Id. at 20-21 (testimony of Falkenrath).
\44\ Id. at 33 (testimony of Falkenrath).
\45\ Id. at 34 (testimony of Falkenrath).
\46\ Id. at 34 (testimony of Falkenrath).
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Finally, witnesses discussed the viability of whether the
government should require or encourage facilities to use
inherently safer technologies to help enhance security.
Falkenrath and Flynn said the government should provide
facilities with incentives to adopt security measures,
including the substitution of a safer chemical for a deadly
chemical.\47\ But Falkenrath counseled against authorizing the
government to order facilities to switch to a safer
chemical.\48\ Stephenson noted that using inherently safer
technologies (IST) would require ``extreme investments'' for
certain facilities,\49\ and Flynn said ``there is certainly
legitimately a call on some Federal resources to help with this
problem.'' \50\
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\47\ Id. at 30-31 (testimony of Falkenrath and Flynn).
\48\ Id. at 30 (testimony of Falkenrath).
\49\ Id. at 31 (testimony of Stephenson).
\50\ Id. at 32 (testimony of Flynn).
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On June 15, 2005, the Committee held the second of four
hearings on chemical security. This hearing was entitled, ``Is
the Federal Government Doing Enough to Secure Chemical
Facilities and Is More Authority Needed?'' This hearing looked
directly at the actions and views of the Federal government,
specifically DHS and EPA. The Committee heard from two
witnesses: Robert B. Stephan, then-Acting Under Secretary for
Information Analysis and Infrastructure Protection, U.S.
Department of Homeland Security, and Thomas P. Dunne, Deputy
Assistant Administrator, Office of Solid Waste and Emergency
Response, U.S. Environmental Protection Agency.
In December 2003, DHS replaced the EPA as the Federal
government's lead agency for chemical security. The
Administration's ``National Strategy for Homeland Security''
(July 2002) designated EPA as the lead agency responsible for
the security of the chemical sector. Later that year, Congress
created the Department of Homeland Security (DHS) and a
subsequent White House directive--Homeland Security
Presidential Directive 7 (HSPD-7)--designated DHS as the
Federal government's lead agency for chemical sector security,
in December 2003.
In his written testimony, then-Acting Under Secretary
Stephan said that ``Secretary Chertoff has concluded that from
the regulatory perspective, the existing patchwork of
authorities does not permit us to regulate industry
effectively,'' and told the Committee that DHS will ``look
forward to working with you in the coming weeks on the
particulars of proposed legislation.'' \51\ Stephan testified
before the Committee that ``it has become clear that the
entirely voluntary efforts of these companies alone will not
sufficiently address security for the entire chemical sector.''
\52\ In a response to a written question, Dunne wrote, ``EPA
has no evidence to support the conclusion that market forces
alone are sufficient to ensure adequate safety or security at
hazardous chemical facilities * * * Therefore, the Agency
believes that Federal safety and security requirements are
necessary to ensure high-risk chemical facilities implement
appropriate safety and security measures.'' \53\
---------------------------------------------------------------------------
\51\ Id. at 36 (written statement of Robert Stephan).
\52\ Id. at 7 (statement of Stephan).
\53\ Id. at 63 (response of Dunne to questions for the record).
---------------------------------------------------------------------------
Although Stephan and Dunne did not indicate that the
Administration would send the Committee a proposal,\54\ Stephan
advised that the legislation should adhere to three core
principles. First, any Federal regulatory system should
recognize that not all facilities present the same level of
risk, and that most scrutiny should be focused on those
facilities, which if attacked, ``could endanger the greatest
number of American lives, have the greatest impact on the
American economy, or present other significant risks.'' \55\
Second, chemical security regulations should be based on
enforceable performance standards.\56\ Third, there should be a
recognition of the progress many responsible companies have
made to date in the area of chemical security.\57\ Stephan was
unable to offer specifics about the Administration's desired
legislative framework, but said that MTSA is a framework worth
consideration because ``that particular way of doing business
has achieved a certain level of success,'' while noting that
``we have to * * * see if there are any deltas between the MTSA
approach and whatever the overall more encompassing approach
would be.'' \58\
---------------------------------------------------------------------------
\54\ Id. at 15 (testimony of Stephan and Dunne).
\55\ Id. at 5 (testimony of Stephan).
\56\ Id.
\57\ Id. at 6 (testimony of Stephan).
\58\ Id. at 29 (testimony of Stephan).
---------------------------------------------------------------------------
Stephan and Dunne agreed that DHS would be the appropriate
lead agency for chemical security, consistent with HSPD-7.\59\
In support, Stephan reported on the Department's $13.6 million
allocation to state and local governments for Buffer Zone
Protection Plans, some of which would be dedicated to helping
identify and recommend security measures, and coordinate local
law enforcement for the area surrounding a chemical
facility.\60\ He also described the 38 Site Assistant Visits
that DHS has undertaken at some of the ``highest-consequence''
facilities, and the work of the Coast Guard regulating the
security of the approximately 300 chemical sites governed by
the MTSA regulations.\61\ He cited the Department's work with
the private sector through the Chemical Sector Coordinating
Council and the security guidance documents the Department has
shared with the private sector.\62\ Finally, Stephan discussed
the Department's tool for analyzing risk in the chemical sector
and at individual facilities--the Risk Analysis and Management
for Critical Asset Protection (RAMCAP).\63\ ``RAMCAP (and other
risk methodologies) enables the Office of Infrastructure
Protection to compare the risk of critical infrastructure
assets within the chemical sector, thereby enabling DHS to
prioritize * * * protective efforts and effective use of
available resources,'' \64\ Stephan testified.
---------------------------------------------------------------------------
\59\ Id. at 37, 58 (testimony of Stephan and Dunne).
\60\ Id. at 38 (testimony of Stephan).
\61\ Id. at 38-39 (testimony of Stephan).
\62\ Id. at 40-41 (testimony of Stephan).
\63\ Id. at 42 (testimony of Stephan).
\64\ Id. at 51 (testimony of Stephan).
---------------------------------------------------------------------------
The Committee also explored what role the EPA should play
in chemical security. Dunne testified that the EPA supports DHS
by providing information and analytical support as needed, and
that the EPA would continue in a supporting role. Dunne added
that only one department or agency should be in charge and
Stephan agreed.
Stephan and Dunne also provided data on the number of
chemical facilities deemed to pose the greatest risk to the
country. According to Stephan, DHS considers 3,400 facilities
to be ``high-risk,'' with 272 facilities in the top tiers.\65\
Stephan said DHS arrived at 3,400 facilities by starting with
the EPA's Risk Management Program (RMP) program list of
approximately 15,000 facilities and then removing facilities
that appeared more than once on the list, facilities that were
no longer RMP-applicable, and facilities that DHS believed are
under somebody else's regulatory framework.\66\ Responding to a
written question, Stephan said that the 3,400 facilities would,
if befallen to a catastrophic scenario, ``adversely affect'' at
least 1,000 people.\67\
---------------------------------------------------------------------------
\65\ Id. at 10 (testimony of Stephan).
\66\ Id. at 26 (testimony of Stephan).
\67\ Id. at 50, 52 (testimony of Stephan).
---------------------------------------------------------------------------
Notably, Stephan testified that 20 percent of the 3,400
facilities deemed by DHS to be high-risk because they would
adversely affect at least 1,000 people are not participating in
any kind of measurable voluntary code.\68\ Dunne testified that
out of the 15,000 RMP facilities, only about seven to eight
percent of them adhere to voluntary codes, amounting to about
2,000 facilities.\69\ Dunne did not say whether those 2,000
facilities represented some part of the high-risk portion of
the 15,000 RMP facilities.
---------------------------------------------------------------------------
\68\ Id. at 13-14, 53 (testimony of Stephan).
\69\ Id. at 27 (testimony of Dunne).
---------------------------------------------------------------------------
At the same hearing, the issue of whether local communities
were prepared for terrorist attacks on nearby chemical
facilities was explored, as a follow up to the April 27, 2005
testimony from Carolyn Merritt of the CSB. Dunne explained that
there are 3,900 Local Emergency Planning Committees (LEPCs)
established by the Emergency Planning and Community Right-to-
Know Act, and that according to a 1999 survey, about 59 to 60
percent of them are active.\70\ ``I am sure we are not well
prepared across the board all the time,'' Dunne said.\71\
---------------------------------------------------------------------------
\70\ Id. at 28 (testimony of Dunne).
\71\ Id. at 28 (testimony of Dunne).
---------------------------------------------------------------------------
On July 13, 2005, the Committee held the third of four
hearings on chemical security. The hearing was entitled,
``Chemical Facility Security: What Is the Appropriate Federal
Role?'' The first panel featured witnesses from the chemical
industry, including Martin J. Durbin, Managing Director,
Security and Operations, American Chemistry Council (ACC);
Matthew Barmasse, Environmental Health Safety and Quality
Director, ISOCHEM, Inc., Synthetic Organic Chemical
Manufacturers Association (SOCMA); and Bob Slaughter,
President, National Petrochemical and Refiners Association
(NPRA). Testifying on the second panel were the Honorable
Gerald V. Poje, Former Board Member, U.S. Chemical Safety and
Hazard Investigation Board; Glenn Erwin, Project Director,
Triangle of Prevention Program, United Steelworkers
International Union; and Carol L. Andress, Economic Development
Specialist, Environmental Defense.
The testimony included views from stakeholders in the
chemical sector, including industry, environmental groups,
labor, and public advocacy groups. These witnesses discussed
the need for mandatory measures to complement industry's
voluntary efforts.\72\
---------------------------------------------------------------------------
\72\ Chemical Facility Security: What Is the Appropriate Federal
Role?: Hearing Before the Senate Comm. on Homeland Security and
Governmental Affairs, 109th Cong. 2 (2005) (statement of Senator Susan
M. Collins).
---------------------------------------------------------------------------
In his testimony, Marty Durbin, representing the ACC,
advocated for chemical security legislation \73\ and the other
industry witnesses representing SOCMA and NPRA did not oppose
legislation.\74\ Like Stephan, these industry witnesses
advocated a risk-based, performance-based approach to chemical
security regulation.\75\ Durbin also testified that DHS should
have ``the legal authority to police compliance with its
standards and to take enforcement action if necessary,'' and to
protect information about the security assessments and plans
from public disclosure.\76\ Finally, each of the industry
witnesses asked that the legislation include Federal preemption
authority; Durbin said, ``a national program, not an incomplete
patchwork of potentially conflicting State efforts, is
necessary.'' \77\
---------------------------------------------------------------------------
\73\ Id. at 8 (testimony of Durbin).
\74\ Id. at 15 (testimony of Barmasse); Id. at 17-18 (testimony of
Slaughter).
\75\ Id. at 10, 15, 17-18 (testimony of Durbin, Barmasse, and
Slaughter)
\76\ Id. at 11 (testimony of Durbin).
\77\ Id. at 11, 15, 18, 25 ((testimony of Durbin, Barmasse, and
Slaughter).
---------------------------------------------------------------------------
The industry witnesses added to the testimony from Stephan,
Stephenson, and Falkenrath at the two previous hearings, saying
that Federal legislation should give credit to the investments
that certain facilities have already made in the enhancement of
their security, similar to the credit given to facilities under
MTSA.\78\ Durbin, for example, detailed the ACC's Responsible
Care Security Code, which all ACC members must follow. Under
the Responsible Care Security Code, facilities must develop
vulnerability assessments, using methodologies developed by the
Sandia National Laboratories and the Center for Chemical
Process Safety; implement security measures to address the
vulnerabilities identified in the assessments; and submit to a
third-party for an audit.\79\
---------------------------------------------------------------------------
\78\ Id. at 11, 15, 18 (testimony of Durbin, Barmasse, and
Slaughter).
\79\ Id. at 9 (testimony of Durbin).
---------------------------------------------------------------------------
Industry witnesses supported the private sector's
development of inherently safer technologies (IST), but
expressed concerns about a regulatory framework that would
authorize the government to review, approve, or disapprove a
facility's decision of whether or not to use IST.\80\ First,
industry witnesses pointed out that some facilities are using
IST on their own (while acknowledging that many are not).\81\
Second, industry witnesses argue that, in some instances, using
IST trades one risk against the potential of another--for
example, reducing hazardous chemicals at a facility could mean
their transfer to another location, thereby shifting the risk
to that other location.\82\ Third, industry witnesses warned
about the complexity of chemical industry processes and the
absence of a ``standard process,'' thereby precluding the
possibility of a one-size-fits-all prescription for IST.\83\
Fourth, some said DHS lacks the expertise to understand how to
regulate chemical processes.\84\ Fifth, industry witnesses
echoed Stephan's testimony at the June 15, 2005 hearing that
the adoption of IST could require massive capital expenditures
for certain facilities, particularly manufacturing facilities.
---------------------------------------------------------------------------
\80\ Id. at 11-12, 14-15, 23-24 (testimony of Durbin, Slaughter,
and Barmasse).
\81\ Id. at 11 (testimony of Durbin, Barmasse, and Slaughter).
\82\ Id. at 11, 14 (testimony of Durbin, Barmasse).
\83\ Id. at 12 (testimony of Durbin).
\84\ Id. at 27 (testimony of Barmasse).
---------------------------------------------------------------------------
The industry witnesses on the first panel praised MTSA as a
successful model on which chemical security regulation could be
based. One industry witness, Slaughter of NPRA, asked that the
legislation be modeled on MTSA because of its performance-based
standards, its emphasis on self-assessments, its enforcement
mechanisms, and the NPRA membership's praise of their
relationship with the Coast Guard.\85\ When asked if he would
support giving the Department similar shut-down authority
already granted to the Coast Guard under MTSA, Mr. Slaughter
responded that ``obviously, any regulatory entity * * * has got
to have ultimate authority to enforce its requirements.'' \86\
---------------------------------------------------------------------------
\85\ Id. at 17-19 (testimony of Slaughter).
\86\ Id. at 24 (testimony of Slaughter).
---------------------------------------------------------------------------
Witnesses on the second panel stressed the need for
examining safer processes and chemicals as an integral part of
chemical site security, as well as the importance of strong
emergency response capabilities. Poje testified that chemical
facilities in the United States have many safety and security
deficiencies that could jeopardize large populations living
nearby. Poje stressed the interconnection between safety and
security, saying ``I urge the Committee to see the development
and maintenance of competent management systems for safety as
essential underpinnings to enhanced security.'' \87\ Poje said
that an effective security program at DHS must: include
coordination with other agencies that regulate aspects of the
chemical sector; require sound ``management systems'' for
security; and include strong planning and training for
emergency response.\88\
---------------------------------------------------------------------------
\87\ Id. at 32 (testimony of Poje).
\88\ Id. at 32-33 (testimony of Poje).
---------------------------------------------------------------------------
Andress testified that numerous water and wastewater
facilities and refineries have already dramatically reduced
their risk of a catastrophic accident or terrorist attack by
switching to safer chemicals and processes.\89\ Andress said
that because other similarly situated facilities have failed to
make such changes, effective chemical security legislation
should require these options where feasible.\90\ Erwin also
advocated substituting less toxic materials where possible to
reduce the potential risk to human life or storing smaller
volumes of these chemicals, and said a mandatory review of such
options should be part of a chemical security program. Erwin
called for Federal funding to research and promote such
inherently safer systems, as well as for training employees and
first responders about safety and security issues.\91\
---------------------------------------------------------------------------
\89\ Id. at 37-38 (testimony of Andress).
\90\ Id. at 38 (testimony of Andress).
\91\ Id. at 149 (written statement of Erwin)
---------------------------------------------------------------------------
Erwin warned that chemical and petrochemical facilities
pose a likely target because it is ``too easy'' to gain access
to the facilities, and the potential economic disruption of an
attack is so great.\92\ Erwin's testimony drew on his
experience working in the industry, and on the results of a
2004 employee survey at 125 facilities using hazardous
chemicals. The survey found that security and safety measures
at the facilities were dangerously lacking.\93\ Erwin called
for greater perimeter security for chemical facilities as well
as more careful access to hazardous areas within the plant.
---------------------------------------------------------------------------
\92\ Id. at 33 (testimony of Erwin).
\93\ ``PACE International Union Survey: Workplace Incident
Prevention and Response Since 9/11'', October 2004, by Paper, Allied-
Industrial, Chemical and Energy Workers International Union (PACE).
---------------------------------------------------------------------------
Andress also called for requirements that facilities
involve workers and first responders in security planning and
bolster emergency planning efforts.\94\ She testified that
Congress should direct DHS to develop rules to prohibit the
siting of new high risk chemical facilities in densely
populated areas.\95\
---------------------------------------------------------------------------
\94\ Chemical Facility Security: What Is the Appropriate Federal
Role?: Hearing Before the Senate Comm. on Homeland Security and
Governmental Affairs, 109th Cong. 2 (2005) (written testimony of
Andress).
\95\ Id.
---------------------------------------------------------------------------
On July 27, 2005, the Committee held the fourth in its
series of hearings. The hearing, ``Chemical Facility Security:
What is the Appropriate Federal Role? (Part II)'' included a
two-fold theme. First, the hearing was a continuation of the
July 13 hearing, which focused on the views of various
stakeholders in the chemical sector and their opinions on the
need for Federal legislation and what that legislation should
look like. Second, this hearing explored in more detail some of
the issues that have been raised at the previous three
hearings. This hearing included testimony from the Coast Guard
on its implementation of MTSA as well as testimony from three
company security chiefs, representing three different segments
of the chemical sector. The first panel consisted of Rear
Admiral Craig Bone, the Director of Port Security in the
Maritime Safety, Security and Environment Protection
Directorate at the U.S. Coast Guard Headquarters. The second
panel consisted of Beth Turner, Director of Global Operations
Security at DuPont; Jim Schellhorn, Director of Environmental,
Health and Safety at Terra Industries, Inc., who also
represented The Fertilizer Institute; John Chamberlain,
Corporate Security Manager, Asset Protection for Shell, who
also represented the American Petroleum Institute, and; Chief
Robert Full, Fire Marshall and EMA Coordinator for the
Allegheny County Department of Emergency Services in
Pennsylvania.
Previous hearing testimony from stakeholders and
representatives of the Department of Homeland Security
indicated that the framework under MTSA would be a good model
in drafting a chemical security bill. During this hearing, Beth
Turner of DuPont testified that the MTSA has proven ``to be a
very effective security regulation'' and recommended it as a
``model for regulating the highest priority facilities.'' \96\
Admiral Bone's testimony focused on the Coast Guard's role in
securing chemical facilities on the waterways of the United
States under the Maritime Transportation Security Act (MTSA).
Adm. Bone testified that approximately 300 chemical facilities
had facility security plans reviewed and approved under
MTSA.\97\ The Coast Guard also approved an alternative security
program for the American Chemistry Council, and approximately
50 chemical facility operators had chosen to use the American
Chemistry Council's alternative security program.\98\
---------------------------------------------------------------------------
\96\ Id. at 66 (testimony of Turner).
\97\ Id. at 53 (testimony of Bone).
\98\ Id. at 53 (testimony of Bone).
---------------------------------------------------------------------------
Admiral Bone testified that since July 1, 2004, the Coast
Guard had taken ``control actions,'' which included
restrictions and suspension of operations against 45
facilities.\99\ The Coast Guard exercised its shut-down
authority in 32 of those cases, and of these facilities, 3 were
chemical facilities.\100\ Adm. Bone believed that it is
important to give DHS shut-down authority because if one has a
significant violation of security, such as access--illegal
access or breach of the facility--then the security is
compromised, as is the well-being of the public.\101\ He
described the area maritime security committees, led by the
local Coast Guard captain of the port, which have identified
their port's specific vulnerabilities and created a plan to
address those vulnerabilities (area security plan). These area
plans focus on critical port operations and infrastructure,
including the chemical facilities regulated under MTSA, as well
as other facilities located in close proximity to navigable
waterways.
---------------------------------------------------------------------------
\99\ Id. at 53 (testimony of Bone).
\100\ Id. at 56 (testimony of Bone).
\101\ Id. at 56 (testimony of Bone).
---------------------------------------------------------------------------
In discussing lessons learned from implementing MTSA that
would be helpful in crafting a chemical security regime, Adm.
Bone emphasized that in creating regulations, the regulator
must engage with the industry component that will be regulated,
and this relationship must continue as the process moves
forward, because the industry has expertise that the regulator
could utilize.\102\ Bone also testified that there has to be
compliance and a mandated set of requirements. He also
emphasized that the plans must be exercised and include not
just the people in the facilities, but the emergency response
component as well. In fact, Adm. Bone testified that it would
be a ``big mistake'' if the emergency responders were not
included in the drills and exercises.\103\
---------------------------------------------------------------------------
\102\ Id. at 57-58 (testimony of Bone).
\103\ Id. at 58 (testimony of Bone).
---------------------------------------------------------------------------
Turner and Schellhorn testified that DuPont and the
Fertilizer Institute respectively support chemical security
legislation that incorporates several elements, including
giving DHS the regulatory authority that is risk-based,
flexible, focused on security and uses MTSA as a model.\104\
Turner and Schellhorn agreed that legislation should recognize
the voluntary security efforts and investments already made to
date by industry.\105\ They also favored a tiered approach to
security regulations.\106\ In determining what facilities
should be covered by Federal regulation, Turner noted that the
ability to create an off-site consequence is a ``very important
discriminator.'' Schellhorn also urged that Federal legislation
preempt any State or local government's laws on the
subject.\107\
---------------------------------------------------------------------------
\104\ Id. at 66, 69 (testimony of Turner and Schellhorn).
\105\ Id. at 66, 69-70 (testimony of Turner and Schellhorn).
\106\ Id. at 66, 69-70 (testimony of Turner and Schellhorn).
\107\ Id. at 70 (testimony of Schellhorn).
---------------------------------------------------------------------------
Turner testified that inherently safer technology (IST)
``has an important role to play in security,'' but she said it
is a safety matter, not a security issue, and therefore should
not be mandated in a chemical security context.\108\ Schellhorn
testified that ``IST is not a security measure,'' but rather a
safety concept that he feared ``could lead to the ban or
restricted use of basic nitrogen fertilizers.'' \109\
Chamberlain testified that he is ``strongly oppose[d] to any
environmental mandates for inherently safer technology pursued
under the guise of security.'' \110\
---------------------------------------------------------------------------
\108\ Id. at 66 (testimony of Turner).
\109\ Id. at 69 (testimony of Schellhorn).
\110\ Id. at 72 (testimony of Chamberlain).
---------------------------------------------------------------------------
John Chamberlain of Shell Oil Company testified that a
large number of security personnel in the oil and gas industry
have the security clearances necessary for classified briefings
with the Federal intelligence community.\111\ Chamberlain also
emphasized the importance of information protection in any
security legislation; in addition to a FOIA exemption, he would
want any security information required under a Federal chemical
security law to be exempt from civil discovery.\112\ Moreover,
he would like MTSA-covered facilities to be exempt from any
Federal chemical security law.\113\
---------------------------------------------------------------------------
\111\ Id. at 71 (testimony of Chamberlain).
\112\ Id. at 73 (testimony of Chamberlain).
\113\ Id. at 73 (testimony of Chamberlain).
---------------------------------------------------------------------------
Chief Full testified that he supports Federal chemical
security legislation. As a critical component of this
legislation, he emphasized the need for strong emergency
planning and relationships between the chemical facilities and
their local first responders. Good emergency planning can help
to minimize the consequences of any terrorist event or natural
disaster. He noted that ``it's not the time or place to
exchange business cards during the time of an emergency.''
\114\ He also discussed the need to improve intelligence
sharing between the Federal government with State and locals,
though he noted information sharing has improved since 9/11,
but it still has ``a long way to go.'' \115\
---------------------------------------------------------------------------
\114\ Id. at 75 (testimony of Full).
\115\ Id. at 76 (testimony of Full).
---------------------------------------------------------------------------
These hearings culminated in Chairman Collins' and Ranking
Member Lieberman's December 19, 2005 introduction of the
Chemical Facility Anti-Terrorism Act of 2005.
III. DISCUSSION OF LEGISLATION
Department of Homeland Security authority/responsibility
The Chemical Facility Anti-Terrorism Act of 2006 authorizes
the Department of Homeland Security (DHS) to create a
comprehensive chemical facility security program. The
President, through Homeland Security Presidential Directive 7,
has designated DHS as the lead agency for security of the
chemical sector, and this legislation recognizes that vital
role by directing and empowering the Department to create
meaningful security requirements for facilities that use or
store significant amounts of dangerous chemicals. This security
program will replace an existing patchwork of voluntary and
regulatory efforts with a national program that will establish
meaningful security requirements for all chemical facilities
that pose a significant homeland security risk. At the same
time, the legislation seeks to recognize existing security
efforts at some facilities by establishing flexible
requirements that will allow facilities to build on security
planning and measures already in place. The bill stresses a
flexible and risk-based approach to chemical site security,
focusing on those facilities that present the greatest risk and
allowing those facilities to determine the most efficient and
effective way to achieve the security performance standards
established by the Department. DHS is empowered to require that
facilities achieve the security performance standards that it
sets.
Risk-based
The Committee designed this bill to account for the
diversity of the chemical sector, rather than imposing a one-
size-fits-all solution. The Committee recognizes the incredible
diversity of the chemical sector, which includes chemical
manufacturers, distributors, oil and petrochemical and
agricultural companies, and both large and small businesses.
There are tens of thousands of chemical facilities nationwide,
but not all pose a high risk to a terrorist attack. Facilities
located in a rural area with small quantities of non-toxic
chemicals are unlikely to pose the same risk as a major toxic-
by-inhalation chemical manufacturer, for example, located
inside a major metropolitan area, or a chemical facility that
is a critical supplier to the regional or national economy or
national security. The Committee believes that a risk-based
approach to security is the most effective means to regulate
the security of chemical facilities across the Nation.
The Committee heard testimony during all four of its
chemical security hearings that established a strong record of
support for a risk-based approach, from security experts, the
Administration, and stakeholders.
Therefore, not all facilities that use or store chemicals
will be subject to security requirements under this bill.
Rather, under Section 3, the Department must establish criteria
to determine which facilities pose a significant risk from a
terrorist attack to warrant being included in the program. The
bill directs the Secretary to ``consider'' those facilities
that are required to complete a Risk Management Plan (RMP)
under section 112(r)(2) of the Clean Air Act. The bill uses the
list of RMP facilities as the best available initial starting
point for possible chemical sources. The Committee does not
anticipate that the Secretary will designate as chemical
sources every RMP facility. The Secretary is directed to apply
risk factors outlined in Section 3(b) to produce a list of
regulated facilities. Those risk factors include: the perceived
threat to a facility; the extent and likelihood of potential
deaths or harm to humans or the environment; and the potential
impact on national security, critical infrastructure or the
economy. Further, those facilities that will face regulation
under this bill will be grouped into tiers based on the
severity of risk they present (Section 3(e)). The Secretary is
expected to focus the regulatory program under this bill on
high priority sites; in example, those that would be most
attractive to potential terrorists due to the potentially high
consequences of a successful terrorist attack. The bill
requires security measures at a given facility to be
proportional to the threat and consequence of a potential
terrorist attack at that facility. The greater the threat or
consequence of a potential terrorist attack, the greater the
security measures required to protect against such an attack or
mitigate the consequences if there is an attack.
Performance-based
The bill also recognizes the diversity of chemical
facilities by requiring DHS to develop performance-based
standards for chemical site security (Section 3(f)). Facilities
can choose the most economical and effective means of
addressing the threat and consequence of a terrorist attack on
their particular facility. Different means of mitigating the
risk of a terrorist attack or the consequences of a terrorist
attack are placed on a level playing field as long as they
achieve the standards established by DHS. If DHS determines
that a chemical facility has not met the performance standard,
DHS can order compliance or, ultimately, order the closure of
the facility until it is in compliance.
By requiring performance standards, the Committee seeks to
recognize that chemical facilities have the most information
about their operations and should have the first opportunity to
design appropriate, efficient and effective security measures.
According to the National Strategy for Homeland Security (July
2002), ``[i]n many cases private firms, not the government,
possess the technical expertise and means to protect the
infrastructure they control.'' \116\
---------------------------------------------------------------------------
\116\ National Strategy for Homeland Security, The Office of
Homeland Security, July 2002, at 33.
---------------------------------------------------------------------------
Vulnerability assessments and site security plans
Section 4 lays out the core requirements of the chemical
security program, specifically the requirement for facilities
to conduct vulnerability assessments and to develop and
implement security and emergency response plans that respond to
those assessments.
The Secretary would have one year from enactment of the
bill to develop regulations requiring chemical facilities to
conduct vulnerability assessments; prepare and implement a site
security plan that addresses the risk identified in the
vulnerability assessment; and prepare or update and implement
an emergency response plan to reflect planning for a terrorist
attack.
The Secretary must develop or endorse a rigorous
methodology for vulnerability assessments, to ensure that
facilities consider the proper issues as they analyze their
security needs. The bill specifies that vulnerability
assessments must address the relevant performance standards and
the sufficiency of security measures relative to the threat and
consequences of a possible terrorist incident (Section
4(a)(5)).
Section 4(a)(6) details the requirements for security plans
under the chemical security program. The plans would need to
include security measures that address the vulnerabilities
identified in the facility's vulnerability assessment, and meet
the appropriate performance standards for that facility as
determined by the tier to which the facility has been assigned
pursuant to Section 3(e).
As specified in Section 2(11), a ``security measure'' can
be any of an array of possible means to improve the security of
a chemical facility, including increased control of the
facility perimeter, personnel-related measures such as training
and background checks, or enhanced cybersecurity. A security
measure might also include ``the modification, processing,
substitution, or reduction of substances of concern'' as
indicated in Section 2(11)(B)(vii)(III). These terms, which are
considered to be elements of the concept of inherently safer
technology (IST), are not included in the bill to provide the
Secretary with the power to require a facility to implement
IST. The list of possible security measures under Section 2(11)
is permissive, not mandatory, and is not meant to exclude any
other measures that would help enable an owner or operator to
meet the designated security performance standards for that
facility. Section 4(a)(6) simply directs that the security plan
include security measures that ``in combination'' satisfy the
appropriate performance standards and other required elements.
During Committee markup, the Committee adopted an amendment
clarifying this principle; Section 4(c)(2) specifies that the
Secretary may not disapprove a site security plan due to the
presence or absence of any particular security measure so long
as the plan satisfies the applicable security performance
standards. Moreover, during markup, the Committee also rejected
an amendment that would have given the Secretary the power to
require high risk facilities to implement IST. The Committee
does not believe that this provision or the bill in general
gives DHS the authority to require IST.
Emergency response plans
The Committee believes that it is imperative to incorporate
the concept of emergency response planning in any chemical
security regime. During the Committee's four chemical security
hearings, witnesses highlighted the importance of emergency
preparedness in dealing with a chemical release as well as
weaknesses in the current state of preparedness of many
facilities and communities. In particular, Carolyn Merritt,
Chairman of the U.S. Chemical Safety and Hazard Investigation
Board (CSB), and Gerald Poje, a former member of the CSB, were
critical of chemical plant preparedness across the country.
Both Merritt and Poje emphasized in their testimony that
effective emergency response planning and capabilities can
mitigate the consequences of a terrorist attack on a chemical
facility. In addition, the events of Hurricane Katrina
demonstrated that the lack of effective emergency planning
further exacerbates the consequences of a catastrophic event.
The Committee acknowledges that many chemical facilities
nationwide already have created emergency response plans
pursuant to other Federal, State or local requirements, and it
is not interested in duplicating efforts. Rather, the Committee
intends this provision to build on and bolster existing
emergency response plans such that they address the
consequences of an intentional attack, such as a terrorism
event, in addition to accidental releases. The Committee
intends this provision to contribute to the chemical sector's
all hazards preparedness planning, as opposed to planning
purely for an accidental release or for a terrorist attack
scenario. Where a chemical facility already has an existing
emergency response plan, the bill requires it to update the
existing plan by adding a security addendum which addresses a
terrorist attack scenario. The bill further requires that
emergency response plans specifically address the consequences
of a terrorist attack identified in the vulnerability
assessment and consistent with the facility's site security
plan. The bill also requires that the emergency response plan
identify the roles and responsibilities of employees at the
chemical source. There is precedent for the revision and update
of existing emergency response plans in post-9/11 security
statutes. For example, the Bioterrorism Act included a
provision that requires community water systems to ``prepare or
revise, where necessary, an emergency response plan.''
A security regime should encourage both preparedness and
response, and the emergency response provision in this bill
will encourage chemical facilities to work with their local
communities to ensure that if a terrorist attack occurs, the
community will be prepared.
Sharing of threat information
The Secretary is required to provide State and local
government officials and owners or operators of chemical
sources with threat information that is relevant to the
chemical sector in general, and to provide threat information
relevant to a particular chemical source to relevant State and
local government officials and the owner or operator of that
particular source. The Secretary must share relevant
information to the maximum extent permitted under other
applicable laws and in the interests of national security. The
Committee recognizes that information sharing in an appropriate
manner, as noted in the legislation, is an important aspect of
effective homeland security preparedness.
MTSA-regulated chemical facilities
Currently the MTSA regulates approximately 300 chemical
facilities in the Nation. The Committee did not exempt MTSA-
regulated chemical facilities from this bill because it
believes that some of the highest risk chemical facilities
nationwide are located in ports and should meet the security
performance standards for their applicable tier, should they,
in fact, be covered by this bill. In constructing a
comprehensive and cohesive Federal chemical security regime,
the Committee believes that MTSA-regulated chemical facilities
should be subject to the security performance standards and
other requirements of this bill. At the same time, the
Committee also recognizes that MTSA-regulated chemical
facilities have invested in security and are currently
complying with a Federal statute, while many other high risk
chemical facilities that are not complying with any Federal
security law.
The Committee does not want to duplicate efforts. The
Committee included a provision directing that the Secretary
must implement this bill in as consistent and integrated a
manner as possible with MTSA. The Secretary must also ensure
coordination between the Undersecretaryfor Preparedness and the
Coast Guard Commandant in carrying out this bill for chemical sources
that are also MTSA-regulated facilities. Under the bill, if a chemical
facility owner or operator reviews the security performance standards
and determines that he is already in compliance, based on his MTSA
facility security plan, then the owner or operator is not required to
implement additional security. The owners and operators of these
facilities must review their own vulnerability assessment, security
plan and emergency response plan prepared pursuant to MTSA and make any
modifications necessary to comply with the security performance
standards established for the tier in which it was placed under this
Act. Depending on the tier an MTSA-regulated chemical facility is in,
it may already have sufficient security to address the security
performance standards set by DHS. The assessment and plans, with any
appropriate modifications, must be submitted to the appropriate Federal
Maritime Security Coordinator and the Secretary for approval within 6
months after issuance of the regulations. Owners and operators of these
facilities must also certify in writing to the Federal Maritime
Security Coordinator for their area that the assessment and plans are
in compliance with the security performance standards for their tier.
Voluntary activities and investments in security by chemical facilities
The Committee recognizes the efforts and investments in
security that some companies have made voluntarily over the
last few years. This was one of the issues raised in testimony
at the July 13 and July 27, 2005 hearings from companies and
industry associations representing different aspects of the
chemical sector, including chemical manufacturing, small
chemical manufacturers, agriculture, and oil and petrochemical.
The Committee included an alternative security programs
provision (Section 4(f)) specifically to take account of the
voluntary efforts already taken by chemical companies. The
Committee did not want chemical companies to duplicate work
already done and investments in security already made in
creating vulnerability assessments, site security plans, and
emergency response plans, for example. Under Section 4(f), the
Secretary may consider petitions to approve alternative
security programs. A person may submit a petition to the
Secretary to have him consider alternative standards
established by Federal, State, or local government authorities,
or industry for determination whether assessments and plans
prepared for the alternative program meet the requirements of
this bill. If an alternate program meets the requirements, the
assessments and plans may be submitted by a covered facility
without further revision. If the Secretary determines that the
assessments and plans under the alternate program do not meet
the requirements of this legislation, he may specify necessary
modifications. If an alternative security program is approved
by the Secretary, each facility covered by that program must
submit its assessments and plans to the Secretary, for review
in accordance with the security performance standards for the
pertinent tier. Each facility submission must be individually
approved or disapproved.
This provision reflects the Committee's desire that
chemical facilities not be forced to duplicate significant work
already done and security investments already made in creating
vulnerability assessments, site security plans, and emergency
response plans. However, the Committee feels strongly that the
purpose of this bill is to create a strong, uniform
Federalstandard for regulating the security of chemical facilities, so
that all existing assessments and plans must meet its requirements to
be approved by the Secretary.
DHS review
In Section 4(c), the Secretary is required to review the
assessment and plans to determine whether the submitted
assessments and plans, and the implementation of such plans
comply with the bill. If compliance is determined, then the
Secretary would issue an approval notice; if non-compliance is
determined, the Secretary would issue a disapproval notice.
During Committee markup, an amendment was accepted that directs
that the Secretary may not disapprove a site security plan
because it either includes or excludes a specific security
measure (Section 4(c)(2)). The amendment was intended to
reiterate the performance-based, flexible construct of the bill
and exclude prescriptive requirements. The Secretary must
provide written notice to the owner or operator of the chemical
source regarding the determination of approval or disapproval.
For disapprovals, the Secretary must provide the owner or
operator, in writing, a clear explanation of deficiencies and
consult with them to identify appropriate steps to achieve
compliance and provide additional time for the facility to come
into compliance. If the owner or operator does not achieve
compliance, the Secretary must issue an order requiring the
owner or operator to correct the specified deficiencies. If the
owner or operator continues to be in noncompliance, the
Secretary may issue an order for the chemical source to cease
operation. Hearing testimony from industry witnesses as well as
Coast Guard Adm. Bone indicated that the Coast Guard possesses
similar shut-down authority under MTSA.
The Committee provided the Secretary with greater authority
in dealing with higher risk tier facilities. For these
facilities, the Secretary may issue an order to cease operation
to a chemical source owner or operator as soon as the
determination is made that the vulnerability assessment, site
security plan, or emergency response plan is disapproved or
determines that implementation does not comply with this
Section. The Secretary is not required to provide additional
time for compliance as noted for all other tiers.
The Secretary is required to make the approval or
disapproval determination within 5 years after the date of
submission of the assessment and plans. For higher risk tier
facilities, the Secretary must make the approval or disapproval
determination within 1 year after the date of submission of the
assessment and plans. The Secretary may conduct subsequent
reviews and determinations of compliance on a schedule that he
determines. Higher risk tier facilities must be given priority
for review.
Inspections and audits
The Committee believes that requiring vulnerability
assessments, site security plans and emergency response plans,
and the implementation of such plans is not enough to ensure
adequate security for the Nation's high risk chemical
facilities. The Committee included a section in the bill
(Section 5) requiring the Department to conduct audits and
inspections of covered chemical facilities to ensure compliance
with the bill. Each chemical source must maintain a current
copy of the vulnerability assessment, site security plan and
emergency response plan onsite for 5 years after date of the
approval determination. The Secretary is given the authority
for a right of entry to chemical sources and any premises on
which any record required to be maintained is located.
The Secretary is directed to conduct, or require the
conduct of, audits and inspections. The Secretary is given the
discretion of determining the times and places of the audits
and inspections, and he may establish the requirements of this
section of the bill by rule, regulation, or order. The audits
and inspections under this section are intended to determine
whether a chemical source is in compliance with the bill.
The Committee believes that higher risk facilities should
be given priority for inspection and audits, and therefore the
requirements for these facilities under this section are more
stringent. The Secretary is directed to inspect or audit higher
risk tier facilities at least once per year. The Committee also
felt strongly that higher risk tier chemical sources that are
also MTSA-regulated facilities should have a seamless audit and
inspection regime. Therefore, the bill includes a provision
that allows an MTSA audit or inspection to qualify as an audit
or inspection under the bill's annual requirement.
While the Committee wants the Department to focus its
efforts and resources on the highest risk facilities, it did
not want to unduly tie the hands of the Secretary in
establishing an effective audit and inspection regime.
Therefore, pursuant to an amendment adopted at Committee
markup, if a higher risk tier facility has been found in
compliance with this Act based upon 5 consecutive years of
audits or inspections, the Secretary may exempt a chemical
source from this annual requirement. The bill gives the
Secretary the discretion to exempt a facility from the annual
requirement, but the Secretary is not required to issue such
exemption. If the Secretary exempts a higher risk tier facility
from this annual requirement, such facility must be audited or
an unannounced inspection must occur at least once per every 5
years after the exemption determination. The Secretary may
require the submission of or access to and copy any records or
information, including the assessment and plans and any other
documentation necessary for the review and analysis of such
assessment and plans and the implementation of a security plan.
If the Secretary determines that an owner or operator is not
maintaining, producing, or permitting access to records or to
the premises of the chemical source as required by this
section, the Secretary may issue an order requiring compliance.
Infrastructure and implementation
The Committee felt strongly that an effective chemical
security regulatory regime, which would both help prevent
future attacks and provide effective response capabilities
should an attack occur, needed a robust infrastructure and
implementation structure. The bill included such an
architecture in Section 6, entitled ``Infrastructure and
Implementation.'' The intent of Section 6 was to address
effectively both the prevention and response capabilities
simultaneously. As noted in the ``Emergency Response Plan''
subsection of this report, the Committee believes that a
chemical security regime must contain both the prevention and
the response capabilities. An effective response to a terrorist
attack can mitigate the consequences and save lives.
The Committee modeled Section 6 of this bill on MTSA to
include its regulatory implementation structure for prevention
and response. In turn, Committee discussions with the Coast
Guard and others regarding MTSA described a regulatory
implementation regime based directly upon the successful
implementation of the Oil Pollution Act of 1990 (OPA-90) (PL
101-380). It is the intent of the Committee that the Department
should align its efforts with those of MTSA and the
implementation efforts previously proven successful by the
Coast Guard. The Committee intends for the Department to use
MTSA as a model for this section and avoid developing an
inconsistent security regime with one already covering some
chemical facilities.
The bill directs the Department to establish a national
office to provide strategic and consistent doctrine for a
unified and effective Federal effort for security and response.
This national level office will work collaboratively to
coordinate with other Federal, State and local government
agencies and departments, law enforcement agencies and first
responders, and chemical sources to provide the leadership,
guidance, oversight, and adequate resources to protect the
Nation's chemical facilities. The national office will have the
responsibility of directly supervising Infrastructure
Protection Regional Security Offices, designating areas within
the regions, supporting the Area Security Committees when
requested or needed, and assigning adequate and well-qualified
staff to include the Federal Area Security Coordinator. The
national office will also be responsible for approving both
individual chemical source assessments and plans and area
security plans, planning and conducting national-level
exercises, issuing any reports required by this bill, and
ensuring the prevention, preparedness, response, and recovery
capabilities for the chemical sources. The national office will
further delineate and assign functions and responsibilities to
the regional and area offices as appropriate to achieve the
intent of this bill.
In order to implement an effective chemical critical
infrastructure protection and response regime, the Committee
believes that the Department needs to design and implement a
regional operational structure. It is important for the
Department to establish relationships with regional and local
government agencies, first responders, and the chemical source
owners and operators in order to provide for effective critical
infrastructure protection and implement this bill effectively.
Moreover, this regional structure for the chemical sector could
ultimately provide the architecture for overseeing preparedness
and protection for other critical infrastructure sectors. The
bill directs the Department to establish Infrastructure
Protection Regional Security Offices in each region of the
Federal Emergency Management Agency (FEMA) Region, or the
regional office of any successor agency with responsibility for
emergency management, preparedness, and response. The purpose
of these regional offices is to carry out this bill and
coordinate regional chemical site security, as described by
this section of the bill. Regional Offices will have the
responsibility of reviewing and approving each Area Security
Plan developed by each Area Security Committee within its
region, ensuring consistent implementation of this bill across
the region, providing direct supervision and support to each
Federal Area Security Coordinator in the region, providing
regional coordination between states and Areas (including Areas
designated under MTSA), and planning and conducting regional
level exercises. In addition, the regional offices of this bill
shall coordinate and integrate their activities to the maximum
extent possible with all other activities assigned to the
FEMAregional offices in an effort to provide the maximum level of
prevention, preparedness, response, and recovery capabilities possible
for the region.
The bill directs the Department to designate ``Areas,''
which will be overseen by an Area Security Committee, which
will be comprised of security and response personnel from State
and local government agencies, chemical sources, local
emergency planning and response entities, other critical
infrastructure sectors and other appropriate organizations. The
Committee intends the Area Security Committee to coordinate
with Federal, State and local officials and chemical sources to
enhance security and emergency response planning. The Area
Security Committee will be led by a designated Federal Area
Security Coordinator (FASC). The Areas designated by the
Secretary through the national office will cover all of the
territory of the United States except for the Areas already
designated by MTSA. The FASC will lead an Area Security
Committee made up of members appointed by the Secretary through
the national office of relevant Federal, State, local, and
other stakeholders. The FASC and Area Security Committee will
be responsible for preparing an Area Security Plan with the
relevant stakeholders in each area based upon an area
vulnerability assessment and review of each individual chemical
source's security and response plan, planning and conducting
area level and individual chemical source exercises, and
coordinating with Federal, State, and local enforcement and
response agencies to provide the maximum level of prevention,
preparedness, response, and recovery capabilities possible for
the area. The FASC is also responsible for conducting
individual regulatory inspections and audits of chemical
sources in compliance with the regulations promulgated by the
Secretary. The Area Security Plans developed by the FASC and
Area Committee will be aligned the National Response Plan, the
National Infrastructure Protection Plan, and any other
appropriate national security and response plans. The Area
Security Plan will also address the responsibilities and
resources available to prevent, prepare for, respond to, and
recover from a terrorist release from a chemical source within
the geographically defined Area.
Heightened threat authorities of the Secretary
The Committee believes that the Secretary should have the
authority to require greater security at chemical sources
during times of heightened threat of terrorist attack. Section
7 of the bill, ``Heightened Security Measures,'' is intended to
address these situations, such as when the Federal government
has intelligence about threats to the chemical sector or a
threat assessment. In the event of such a situation, the
Secretary may issue an order to the owner or operator of a
chemical source to implement increased security measures, as
pre-identified in the facility's site security plan. The bill
requires a chemical source to include a provision in its site
security plan detailing what additional security measures it
would implement in situations of heightened threat (Section
4(a)(6)(C)(iii)). If the Secretary issues an order pursuant to
this section of the bill, the chemical source must implement
the security measures pursuant to its site security plan. The
Secretary does not have the authority to prescribe specific
security measures pursuant to this section, nor does the
Secretary have the authority to require that these heightened
security measures remain in place indefinitely. This section
limits the effect of an order for heightened security measures
to 90 days, unless the Secretary files an action in Federal
district court to extend the order.
Enforcement authority and penalties
Section 8 provides for administrative, civil and criminal
penalties for owners or operators of a chemical source who do
not comply with orders or directives issued by the Secretary
pursuant to this bill. This section provides for administrative
penalties of not more than $25,000 per day and not more than a
maximum of $1,000,000 for each year for failure to comply with
an order or directive issued by the Secretary. This section
also provides for a notice and hearing on the proposed penalty.
This section also provides for civil penalties against the
owner or operator of a chemical source that violates or fails
to comply with an order or directive issued by the Secretary
under this bill or a site security plan approved by the
Secretary under this bill. These cases may be brought in a
United States district court. A court may issue an order for
injunctive relief or may award a civil penalty of not more than
$50,000 for each day on which a violation occurs or a failure
to comply continues.
This section also permits criminal penalties to be brought
against an owner or operator who knowingly and willfully
violates any order issued by the Secretary under this bill or
knowingly and willfully fails to comply with a site security
plan approved by the Secretary under this bill. A court may
fine an owner or operator not more than $50,000 for each day of
such violation or imprison him for not more than 2 years or
both.
Protection of information
The new regulatory scheme proposed under the bill requires
the Secretary to keep information defined as ``protected
information'' secure and exempts such information from the
public-disclosure requirements of the Freedom of Information
Act (FOIA) or any State or local law providing for public
access to information. The specific legislative language
employed is that the Department and State and local agencies
shall not be required under FOIA and State and local sunshine
laws to make available to the public protected information.
(The Maritime Transportation Security Act (MTSA), enacted in
2002, employs similar language regarding Sensitive Security
Information (SSI) obtained by the Department for purposes of
MTSA, stating that, ``[n]otwithstanding any other provision of
law, information developed under this chapter is not required
to be disclosed to the public.'')
Under the bill, protected information includes
vulnerability assessments, site security plans, area security
plans, and security addenda to emergency response plans, as
well as certain other materials derived from them that would be
harmful to security if disclosed. Also, the Secretary is
required to establish confidentiality protocols that ensure
records are maintained securely and that access is
appropriately limited. These provisions together mandate that
the Department and other agencies will maintain the secrecy and
integrity of protected information.
The bill provides guidance with respect to the handling of
certifications of compliance and orders, directing that,
generally, certifications and orders are not made available to
the public, except where the Secretary makes a specific finding
that releasing certifications of compliance from a chemical
source to the Department or compliance certifications from the
Department to a chemical source will not increase risk to a
chemical source.
The bill, while fostering an atmosphere of appropriate
information sharing between the Department and State and local
law enforcement, first responders and other officials, still
contemplates protocols based on a need to know standard.
The bill also provides that nothing in the bill will limit
legally established whistleblower rights. The bill mandates
that the protocols must provide guidance to Federal employees
as to how to make protected disclosures without compromising
security. This reflects that the integrity of protected
information must be maintained without infringing upon
whistleblower protections afforded for proper public interest
disclosures nor a Federal employee's right to petition
Congress.
The bill also requires the Department to establish a
process by which a person may submit a report to the Secretary
regarding problems or vulnerabilities at a chemical source. To
encourage such reporting, the bill requires the Secretary to
keep the identity of any person submitting such a report
confidential and forbids an employer from discharging or
otherwise discriminating against an employee for making a
report.
The bill also provides for penalties with respect to any
government employee who, in a manner not permitted by law,
``knowingly discloses'' any record containing protected
information.
Preemption of State and other laws
Section 10(a) states that nothing in this bill precludes
States or localities from adopting or enforcing chemical
security requirements that are more stringent than the standard
under this bill, unless there is an ``actual conflict'' between
a provision of this bill and the law of a State or locality.
Section 10(b) preserves the authority of states to regulate
chemical facilities for purposes of environment, health,
safety, or any other permissible purpose other than the
security of chemical sources from acts of terrorism.
National strategy for chemical security
Section 11 requires the Department to issue an updated
national strategy for chemical security. This section requires
the Department to submit to the Senate Homeland Security and
Governmental Affairs Committee and the Homeland Security
Committee and the Energy and Commerce Committee of the House of
Representatives an update of its ``National Strategy for
Securing the Chemical Sector.'' This document was originally
required to be submitted to the House and Senate Committees on
Appropriations, pursuant to a requirement in the Conference
Committee Report on the Fiscal Year 2006 Homeland Security
Appropriations Bill (Report 109-241). The conferees directed
the Department to complete a national security strategy for the
chemical sector by February 10, 2006. The report was submitted
to the House and Senate Appropriations Committees in May 2006.
As the terrorist threat continues to evolve, the Committee
feels strongly that the Department must continue to plan for an
implement a holistic, coordinated approach to chemical security
and should update its National Strategy accordingly.
Judicial review
This provision establishes the process of judicial review
of regulations and orders under the bill and was added to the
bill by amendment during Committee markup. The regulations
under this Act may be challenged by any person in the U.S.
Court of Appeals for the District of Columbia within 60 days
after the date of promulgation. Further, an owner or operator
of a chemical source may seek judicial review of a final agency
action or order that affects the chemical source in a U.S.
district court within 60 days of the final agency action. For
example, an owner or operator may seek review of an order
disapproving a vulnerability assessment or a site security
plan. Such cases may be brought in the U.S. district court for
which the chemical source is located or the owner or operator
has its principal place of business. The parties in such civil
actions are limited to the owner or operator filing the
petition and the Secretary of DHS.
The Administrative Procedure Act (chapter 7 of title 5,
United States Code) standard of review would apply to the
initial 60-day challenges for new regulations and to challenges
brought by an owner or operator regarding final agency actions
or orders issued with respect to an owner or operator of a
chemical source. This section also provides that nothing in the
Act creates a private right of action against an owner operator
of a chemical source to enforce a provision of the Act.
Ammonium nitrate
Ammonium nitrate is an important fertilizer critical to
agriculture in the United States and around the world. It is
also a serious security concern that should be addressed.
Ammonium nitrate can be combined with fuel oil or other
explosives to produce a powerful explosive.
Since the 1990s, ammonium nitrate bombs have been used in
some of the world's most infamous terrorist attacks. Ammonium
nitrate was combined with fuel oil to create a truck bomb in
Oklahoma City that destroyed the Alfred P. Murrah Federal
Building in April 1995. The bombing, considered the deadliest
incident of domestic terrorism in U.S. history, killed 168
people and injured hundreds more. There is evidence that
terrorists continue to plot attacks using ammonium nitrate. In
June 2006, police uncovered a terrorist plot in Toronto, Canada
involving 3 tons of ammonium nitrate that was intended to be
used for an attack in Toronto. Based on these and other
terrorist attacks and attempted attacks involving ammonium
nitrate, and the threat of additional attacks using this
product, the Committee believes that ammonium nitrate should be
regulated for security. During Committee markup, this section
(Section 14) requiring registration of ammonium nitrate buyers
and sellers was added to the bill. This section is a step in
making it more difficult for terrorists to commit acts of
destruction using this product.
IV. LEGISLATIVE HISTORY
S. 2145 was introduced on December 19, 2005 by Chairman
Collins and Senator Lieberman. Senators Coleman, Carper and
Levin were original cosponsors. S. 2145 was referred to the
Committee on Homeland Security and Governmental Affairs. As
described earlier in the report, the Committee held four
hearings regarding chemical security. On June 14-15, 2006, the
Committee took up S. 2145.
A managers' amendment in the nature of a substitute, was
offered by Chairman Collins and Ranking Member Lieberman, was
adopted by voice vote. The managers' amendment included
technical edits primarily. For example, it clarified that the
Department has to put in writing the approval or disapproval
decisions for site security plans. The more substantive
modifications included: (1) adding cyber security as a
requirement of a site security plan (section 4(a)(6)(C)(iii))
and modifying the existing cyber security requirements in the
contents of a vulnerability assessment to mirror the site
security plan language (section 4(a)(5)(D)(iii)); (2) adding a
provision requiring DHS to notify facility owners and operators
in writing as to whether their plans and assessments were
approved or disapproved (Section 4(c)(1)(B)); segregating the
determination as to whether a higher risk tier facility is
implementing its security plan from the approval/disapproval
determination for compliance with the assessment and plans
submitted to DHS. This is a 2-step process now, as opposed to
rolled into one (Section 4(c)(3)(B)(iv)); adding a requirement
that higher risk tier facilities must be audited or inspected
for compliance at least once per year (Section 5(b)(2)(c)). The
managers' amendment also included a new guidance and
consultation provision in two separate places in the bill that
apply to higher risk tier facilities. Under the bill, DHS must
provide guidance to all covered chemical facilities to help
them meet the security performance standards specifically, as
well as provide technical assistance on compliance with the
overall bill. The managers' amendment provided that for higher
risk tier facilities, the owner or operator of a facility in
this tier may request that the Department provide consultation,
in addition to the guidance already provided for, in coming
into compliance with the bill, and in meeting the security
performance standards. Because higher risk tier facilities must
meet a stricter standard of security, the Committee wanted to
ensure that the Department consulted and worked with these
facilities so that they could achieve compliance with the Act.
Senators present were Collins, Stevens, Voinovich, Coleman,
Coburn, Chafee, Bennett, Warner, Lieberman, Akaka, Carper,
Dayton, Lautenberg and Pryor.
By a vote of 8-8, the Committee did not accept an amendment
by Senator Voinovich to amend the regulatory regime created by
S. 2145 with respect to chemical facilities already covered by
the Maritime Transportation Security Act (MTSA) and to modify
the standard of review for alternative security programs under
S. 2145. The amendment requires the Secretary to consult with
the Coast Guard Commandant to determine whether additional
security measures are necessary at any MTSA-regulated facility
in order to comply with the security performance standards
established under S. 2145. The Secretary must review the
assessment and plans for MTSA-regulated chemical sources within
6 months of enactment of S. 2145. If additional security
measures are determined to be required, the owner or operator
of such chemical source must implement additional security
measures to comply with the security performance standards
within 6 months after receiving the request to comply from DHS.
The amendment also modifies the standard in the Alternative
Security Programs provision (Section 4(f)) such that assessment
and plans prepared under an alternative security program must
be ``substantially equivalent'' to the assessment and plans
submitted under S. 2145, as opposed to the ``meets each
required element'' standard of S. 2145.
Yeas: Stevens, Voinovich, Coleman, Bennett and Pryor. Yeas
by proxy: Coburn, Domenici and Warner. Nays: Collins, Chafee,
Lieberman, Akaka, Carper, Dayton and Lautenberg. Nays by proxy:
Levin.
The Committee adopted by voice vote an amendment offered by
Senator Akaka to clarify that whistleblower protection rights
under any other Federal or State whistleblower protection law
would not be limited by the bill. The bill already provided
that it would not limit Federal employees' rights to make
protected disclosures under applicable whistleblower protection
statutes, 5 U.S.C. Sec. Sec. 2302(b)(8) and 7211.
Senators present were Collins, Voinovich, Coleman, Chafee,
Bennett, Lieberman, Akaka, Carper, Dayton, Lautenberg and
Pryor.
By a vote of 7-9, an amendment offered by Senator Voinovich
was not agreed to that would have struck the State and local
law provision in Section 10 and replaced it with a provision
establishing Federal preemption of State and local laws in the
regulation of chemical security. The amendment provides that a
State or local law is preempted by the bill if complying with
the State or local law and S. 2145 is not possible, or if the
State or local law, as applied or enforced, is an obstacle to
accomplishing and carrying out this bill or frustrates an
overwhelming Federal need for consistency and uniformity for
rules, and regulations resulting from this bill.
Yeas: Voinovich, Coburn, Bennett and Pryor. Yeas by proxy:
Stevens, Domenici and Warner. Nays: Collins, Coleman, Chafee,
Lieberman, Akaka, Carper, Dayton and Lautenberg. Nays by proxy:
Levin.
By a vote of 5-11, the Committee did not agree to an
amendment offered by Senators Lieberman and Lautenberg that
would require mandatory consideration and implementation of
inherently safer technology measures for higher risk tier
chemical sources. The amendment requires each higher risk tier
chemical source to implement inherently safer technology
solutions, unless the owner or operator of the chemical source
demonstrates to the Secretary one of the following three
exceptions: (1) implementing such measures would not reduce the
risk of the facility to an attack; (2) implementing such
measures would be cost-prohibitive, and; (3) implementing such
measures would be otherwise unfeasible. Any higher risk tier
facility that demonstrates one of these 3 must reevaluate
whether it should implement inherently safer technology
measures at least once every five years that the facility
remains assigned to a higher risk tier. The amendment also
requires the Secretary to consult with other governmental
agencies at the Federal, State, and local level (including the
Chemical Safety and Hazard Investigation Board and the U.S.
Environmental Protection Agency) to determine whether higher
risk facilities have adequately evaluated such risk-reducing
measures. The amendment also requires that the Secretary assign
at least 360 facilities to its higher risk tier.
Yeas: Lieberman, Akaka and Dayton. Yeas by proxy: Chafee
and Lautenberg. Nays: Collins, Voinovich, Coleman, Coburn,
Bennett, Carper and Pryor. Nays by proxy: Stevens, Domenici,
Warner and Levin.
When the Committee reconvened its business meeting on
Thursday, June 15, Senator Voinovich offered an amendment which
further clarifies the performance-based intent of S. 2145, and
it was accepted by voice vote. The amendment provides that the
Secretary may not disapprove a site security plan based on the
presence or absence of a particular security measure, if the
site security plan satisfies the security performance
standards. The purpose of this amendment is to clarify the
performance-based intent of the bill, that the Secretary cannot
disapprove a site security plan because such plan does not
embrace specific security measures.
Senators present were Collins, Voinovich, Coleman, Coburn,
Chafee, Bennett, Lieberman, Carper, Dayton and Pryor.
The Committee adopted by voice vote an amendment by Senator
Pryor that would provide the Department with the regulatory
authority to track the handling and purchase of ammonium
nitrate to prevent and deter terrorists from acquiring and
utilizing ammonium nitrate to create explosives for use in acts
of terrorism. The amendment would require that handlers and
sellers of ammonium nitrate must register facilities and only
sell or distribute ammonium nitrate to handlers and purchasers
that are registered. Purchasers of ammonium nitrate are also
required to be registered. Handlers must maintain records of
sale or transfer of ownership of ammonium nitrate. The
Secretary is required to consult with the Secretary of
Agriculture in issuing regulations to avoid placing an undue
burden on agricultural producers' access to ammonium nitrate.
The Committee adopted by voice vote a second degree
amendment by Senator Lieberman. The second degree amendment
strikes the preemption provision in the ammonium nitrate
amendment, with the effect that there is no preemption
provision attached to the Pryor amendment. The second degree
amendment also strikes the protection of information provision
in the Pryor amendment and directs that registration
information under the Pryor amendment be treated as a record as
described in the protection of information (Section 9) of S.
2145.
Senators present were Collins, Voinovich, Coleman, Coburn,
Chafee, Bennett, Lieberman, Carper, Dayton and Pryor.
Senators present for the vote on Senator Pryor's first
degree amendment were Collins, Voinovich, Coleman, Coburn,
Chafee, Bennett, Lieberman, Carper, Dayton, and Pryor.
Senator Voinovich offered a second degree amendment to
modify his amendment and it was adopted by a vote of 9 to 5.
The second degree amendment includes several provisions that
would amend S. 2145 in different places. The second degree
amendment includes: (1) adding an exemption for any facility
owned or operated by a licensee or certificate holder of the
Nuclear Regulatory Commission; (2) adding an interim notice
provision for higher risk tier facilities; (3) modifying the
heightened security measures provision in Section 7; (4)
modifying the criminal penalties provision in Section 8; (5)
adding a judicial review provision; (6) modifying the
submission and certification of changes provision, and; (7)
modifying the protection of information provision in Section 9.
Yeas: Collins, Voinovich, Coleman and Carper. Yeas by
proxy: Stevens, Coburn, Bennett, Domenici and Warner. Nays:
Lieberman and Dayton. Nays by proxy: Levin, Akaka and
Lautenberg. No instruction: Chafee.
The amendment directs the Secretary to conduct a
preliminary review and assessment of the vulnerability
assessment, site security plan, and emergency response plan of
chemical sources in a higher risk tier. This preliminary review
must be conducted at least 3 months before the 1-year deadline
by which chemical sources must have their assessments and plans
approved. Following the review and assessment, if a chemical
source in a higher risk tier appears to not be on track for
compliance, the Secretary must provide notice and assistance to
the source in complying with the Act.
The amendment modifies Section 7 of S. 2145 by (1) adding a
provision to the requirements of site security plans to require
that such plans describe the security measures that would be
implemented under an order issued by the Secretary pursuant to
his Section 7 authority, and (2) clarifying the Secretary's
authority to issue an order to an owner or operator of a
chemical source to implement heightened security measures
described in the chemical source's site security plan approved
by the Secretary. The amendment (1) adds a heightened standard
of knowingly and willfully for assigning criminal liability to
an owner or operator, and (2) removes criminal liability for
the violation of a site security plan.
The amendment adds a new Section 13 to S. 2145 to provide a
judicial review provision. This provision (1) allows any person
to seek judicial review of a regulation within 60 days of its
promulgation; (2) allows the owner or operator of a chemical
source to seek judicial review of a final agency action under
the Act within 60 days of the final agency action; (3) provides
that no other judicial review will be permitted under the
Administrative Procedures Act; and (4) provides that nothing in
the bill creates a private right of action against an owner or
operator of a chemical source to enforce a provision of the
bill.
The amendment provides that if a chemical source makes a
change that would have a materially detrimental effect on the
security of the chemical source, the owner or operator must (1)
certify to the Secretary that the source has completed the
review and implemented any necessary modifications to the
assessment or plans and (2) provide the Secretary a description
of any changes to the assessment or plans.
The amendment included provisions on the protection of
sensitive information that were incorporated into the bill in
lieu of the provisions on information protection that were in
the bill as introduced. The information protection provisions
of the amendment grants exemptions from the Freedom of
Information Act (FOIA) (5 U.S.C. Sec. 522) and from State and
local sunshine laws for vulnerability assessments, site
security plans, area security plans, and security addenda to
emergency response plans. The amendment also provides these
exemptions for materials obtained by DHS developed exclusively
in preparation of the information listed immediately above
(e.g., vulnerability assessments). The amendment also provides
FOIA and sunshine law exemptions for (1) documents or other
information obtained by DHS or a State or local government from
a chemical source and (2) documents prepared by or provided to
a Federal agency or State and local government, but only to the
extent that the documents or information (noted in both (1) and
(2)) describes a chemical source or its vulnerabilities, was
taken from a vulnerability assessment or the other plans noted
above, and, if disclosed, would be detrimental to the security
of a chemical source. The amendment also forbids making any
orders or disapprovals available to the public under FOIA, and
provides a specific mechanism through which certain information
(other than that described above) can be made available to the
public (via the discretion of the Secretary). The amendment
specifically notes that certain information--(a) certifications
of compliance from a chemical source to DHS, (b) failure-to-
comply orders from DHS to a chemical source, (c) compliance
certifications from DHS to a chemical source, and (d) other
disapprovals and orders issued under the bill--shall not be
made available to the public under FOIA, except that if the
Secretary makes a specific finding that releasing a
certification referenced in clause (a) or (c) will not increase
the risk to a chemical source, the Secretary may release the
certification. The amendment also contains a provision which
works in favor of effective information sharing principles
between the Federal, State and local governments. The amendment
provides instruction with respect to the establishment of
protocols under the bill which allow for permitted access to
protected information to include not just State or local law
enforcement officials, first responders, or other State or
local government officials granted access to protected
information for purposes of carrying out the bill, but also to
provide such officials and first responders with information on
the extent to which security of chemical sources in the State
or local area is being achieved.
The Committee adopted by voice vote a modified second
degree amendment by Senator Carper to add language back into
the criminal penalties provision (Section 8(c) of S. 2145)
which was removed by Senator Voinovich's first degree
amendment. The second degree amendment would make a chemical
source owner or operator criminally liable for failing to
comply with a site security plan approved by the Secretary
under this bill. After some discussion during the mark-up,
Senator Carper asked for and received unanimous consent to
modify his second degree amendment to add the words ``knowingly
and willfully'' to the failure to comply with a site security
plan approved by the Secretary under this bill.
Senators present were: Collins, Voinovich, Coleman, Chafee,
Lieberman, Carper, Dayton, Pryor.
The Committee adopted by voice vote a second degree
amendment by Senator Coburn which would modify the audits and
inspections requirements for higher risk tier facilities. The
amendment would permit the Secretary to exempt a higher risk
tier facility from the annual inspection if a facility is
inspected or audited for 5 years in a row, and is found in
compliance with the bill. The amendment then provides that for
each 5-year period after an exemption, the Secretary must
conduct at least one audit or unannounced inspection of the
chemical source. This exemption is not mandatory; the Secretary
has the discretion to exempt facilities or he could continue to
require annual inspections.
Senators present were: Collins, Voinovich, Coleman, Chafee,
Lieberman, Carper, Dayton, Pryor.
By a vote of 15-0, the Committee voted unanimously to
report the bill to the full Senate.
Yeas: Collins, Lieberman, Stevens (by proxy), Voinovich,
Coleman, Coburn, Chafee, Bennett, Domenici (by proxy), Warner
(by proxy), Levin (by proxy), Carper, Dayton, Lautenberg (by
proxy), Pryor. Nays: none. Senator Akaka was not present and
provided no instructions.
V. SECTION-BY-SECTION ANALYSIS
Section 1--Short Title; table of contents
Section 2--Defines key terms
Section 3--Designation of chemical sources and tiering
Designate covered facilities. DHS is directed to designate
the chemical facilities that are covered under this bill within
one year of the date of enactment of this bill. DHS is directed
to issue regulations that establish criteria for evaluating the
types of facilities that should be covered. The regulations
establishing the criteria for designations should (1) take
account of the risk factors described in Section 3(b), and (2)
evaluate the types of facilities described in Section 3(c).
Section 3(b) lays out risk factors that the Secretary should
consider in designating chemical sources: (1) the perceived
threat to a facility, (2) the potential extent and likelihood
of death, injury, or serious adverse effects to human health
and safety or to the environment caused by a terrorist attack
at a facility, (3) threats to or potential impact on national
security or critical infrastructure, (4) potential threats or
harm to the economy, (5) proximity of a facility to population
centers, (6) the nature and quantity of substances of concern,
and (7) other security-related factors necessary to protect
public health and safety, critical infrastructure, and national
and economic security. Section 3(c) directs DHS to (1) consider
any facility that is a ``stationary source'' under the Clean
Air Act (CAA), section 112(r)(2) and for which the owner or
operator is required to complete a risk management plan in
accordance with CAA section 112(r)(7)(B)(ii), (2) consider any
other facility that uses, produces, or stores a ``substance of
concern,'' and (3) determine whether additional facilities,
outside of the first two categories, should be included on its
list. The bill explicitly exempts chemical facilities owned or
operated by the Departments of Defense and Energy, as well as
any facility owned or operated by a licensee or certificate
holder of the Nuclear Regulatory Commission.
Subsection (e)--Establish a Tiered System. Within 1 year of
the date of enactment of this bill, the Secretary must issue
rules establishing a risk-based tiered system of ``chemical
sources.'' The system must consist of several tiers and be
based on risk criteria identified above. Within the first year,
DHS must place each covered chemical facility in a tier. DHS
must designate 1 or more of these tiers ``higher risk
tier(s).'' Higher risk tiers have stricter requirements and
standards, as indicated in Section 4. The rules must also
provide guidance to owners and operators regarding steps that
would enable a chemical source to move to a lower risk tier.
Subsection (f)--Establish Security Performance Standards.
DHS must create security performance standards for each tier.
As the tiers increase in risk, the security performance
standards should become correspondingly stricter, thereby
requiring facilities to implement greater security measures to
meet these standards. DHS must issue guidance as to the types
of security measures that, if applied, could meet the security
performance standards. Chemical facilities would have the
flexibility to employ different security measures that those
described in the guidance if such measures satisfy the security
performance standards. For higher risk tier facilities, at the
request of the owner or operator, the Secretary must provide
consultation on the types of security measures, that, if
applied, could satisfy the security performance standards. The
standards must also include consideration of the criteria for
designating chemical sources (under Section 3(a)), cost,
technical feasibility, and scale of operations.
Subsection (g)--Notice to Facilities. The Secretary must
notify potentially regulated facilities within 6 months of
enactment of the bill about the process and timeline for review
and designation of chemical sources.
Subsection (h)--Subsequent Determinations. The Secretary is
required to review and revise as necessary the list of
designated sources every 3 years. In addition to this periodic
review, the Secretary at any time may determine whether to
designate additional facilities or remove the designation of
particular facilities.
Identification of Additional Chemical Sources--The owner or
operator of any chemical facility where a threshold quantity of
a substance of concern is present to petition the Secretary for
a determination on whether that facility should be designated a
chemical source, if that facility has not been required to
complete a risk management plan (under the CAA section
112(r)(7)(B)(ii)). The owner or operator of any newly operation
facility that handles at least the threshold quantity of a
substance of concern to file a petition with the Secretary for
a determination on whether that facility should be designated a
chemical source. The Secretary is directed to consult with the
EPA Administrator to establish a mechanism for the Department
to receive timely notice when a facility is required to
complete a risk management plan in accordance with CAA section
112(r)(7)(B)(ii).
Subsection (i)--Designating Substances of Concern. The
Secretary may create a list of chemical substances of concern
with corresponding threshold quantities. In doing so, the
Secretary may, by regulation, designate or exempt a chemical
substance as a substance of concern or establish or revise a
threshold quantity. In designating or exempting substances of
concern, the Secretary must consider the potential extent of
death, injury, or serious adverse effects to human health and
safety or the environment and the potential impact on national
security, the economy or critical infrastructure that would
result from a terrorist attack involving the chemical
substance.
Section 4--Vulnerability assessments, security plans, and emergency
response plans
Subsection (a)--Requirements for Assessments and Plans. DHS
must issue regulations with requirements for conducting
vulnerability assessments, creating and implementing site
security plans that addresses the risks identified in the
vulnerability assessment, and creating an emergency response
plan or updating an existing plan to reflect planning for a
terrorist attack scenario. The regulations must be risk-based,
performance-based, and flexible, and must include consideration
of the criteria for designating chemical sources (Section
3(a)(1)). These regulations must allow for the cooperation
among chemical sources operating at contiguous locations.
Subsection (a)(4)--Sharing of Threat Information. The
Secretary is directed to share relevant threat information with
State and local government officials and with an owner or
operator of a chemical source. The Secretary must take into
account the interests of national security and applicable
authority before sharing relevant threat information.
Subsection (a)(5)--Contents of Vulnerability Assessments.
Vulnerability assessments must (1) be based on a methodology
developed or endorsed by the Secretary, (2) incorporate any
threat information shared by DHS under subsection (a)(4), and
(3) address the appropriate security performance standards for
the facility's tier. In addition, vulnerability assessments
must include an analysis of physical security, communications
systems, cyber security, and the sufficiency of existing
security measures relative to the threats and consequences of a
terrorist attack, including vulnerabilities from hazardous
chemicals.
Subsection (a)(6)--Contents of Site Security Plans. Each
site security plan must indicate the tier applicable to the
facility, address risks identified in the vulnerability
assessment and address the appropriate security performance
standards. Site security plans must also include security
measures (1) sufficient to deter, to the maximum extent
practicable, a terrorist attack, (2) to mitigate the
consequences of a terrorist incident, and (3) to increase cyber
security. Further, these plans must describe contingency plans
for the facility; identify roles and responsibilities of
employees; identify steps taken to coordinate with government
officials; describe training, drills, exercises, and security
actions; and describe security measures that would be
implemented in respond to an order under Section 7 in the event
that heightened security measures became necessary for a
particular facility.
Subsection (a)(7)--Contents of Emergency Response Plans.
Emergency response plans must address the consequences of a
terrorist attack identified in the vulnerability assessment; is
consistent with the site security plan; and identifies the
roles and responsibilities of employees. Existing plans must be
modified (to reflect the requirements noted in the previous
sentence) versions of plans that have been Federally approved
or certified and that are in effect on the date of enactment,
if consistent with guidance provided by the National Response
Team (NRT) established under the National Contingency Plan. If
an owner or operator does not already have an emergency
response plan, one must be created following the guidance of
section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C.9605). Owners
and operators are required to place security information in an addendum
to the plan, if necessary, to protect it from public disclosure.
Subsection (a)(8)--Guidance and Consultation. The Secretary
must provide guidance to assist owners and operators of
chemical sources in complying with this bill, including advice
on aspects of compliance that may be unique to small
businesses. An owner or operator of a higher risk tier facility
may request, in addition to the guidance provided to all
covered facilities that DHS consult with them on achieving
compliance under this bill. Higher risk tier facilities may
request that DHS consult with them on achieving compliance with
the bill, in addition to the guidance provided for above.
Subsection (b)--Certification and Submission of Assessments
and Plans. Within 6 months after the regulations are issued
under this section, all covered facilities must certify to DHS
that they have complied with this section (completed a
vulnerability assessment, developed and is implementing a site
security plan and an emergency response plan) and submit to the
Secretary for review and approval copies of the assessment and
plans.
Subsection (c)--Review by the Secretary. The Secretary is
required to review the assessment and plans to determine
whether such assessment and plans, and the implementation of
such plans comply with this section. If compliance is
determined, then the Secretary would issue an approval notice;
if non-compliance is determined, the Secretary would issue a
disapproval notice. The Secretary may not disapprove a site
security plan based on the presence or absence of a particular
security measure if the site security plan satisfies the
security performance standards. The Secretary must provide
written notice to the owner or operator of the chemical source
regarding the determination of approval or disapproval. For
disapprovals, the Secretary must provide the owner or operator,
in writing, a clear explanation of deficiencies and consult
with them to identify appropriate steps to achieve compliance
and provide additional time for the facility to come into
compliance. If the owner or operator does not achieve
compliance, the Secretary must issue an order requiring the
owner or operator to correct the specified deficiencies. If the
owner or operator continues to be in noncompliance, the
Secretary may issue an order for the chemical source to cease
operation. The Secretary has greater authority in dealing with
higher risk tier facilities. For these facilities, the
Secretary may issue an order to a chemical source as soon as
determining that the vulnerability assessment, site security
plan, or emergency response plan or determines that
implementation does not comply with this Section. The Secretary
is not required to provide additional time for compliance as
noted for all other tiers.
The Secretary is required to make the approval or
disapproval determination within 5 years after the date of
submission of the assessment and plans. For higher risk tier
facilities, the Secretary must make the approval or disapproval
determination within 1 year after the date of submission of the
assessment and plans. The Secretary may conduct subsequent
reviews and determinations of compliance on a schedule that he
determines, so long as such reviews occur not less than once
every five years after the initial approval of a facility's
assessments and plans. Higher risk tier facilities must be
given priority for review, and these facilities must be
reviewed not less than once every three years after the initial
approval determination of its assessment and plans.
Subsection (c)(3)(B)(i)--Interim Notice. For higher risk
tier facilities, DHS must conduct a preliminary review of the
vulnerability assessment, site security plan, and emergency
response plan not later than 9 months after date of issuance of
the regulations under this Section. If the preliminary review
indicates that a disapproval determination is likely, DHS must
provide to the chemical source assistance in achieving
compliance with this bill.
Subsection (d)--Submission and Certification of Changes. If
an owner or operator makes a change to a chemical source that
would have a materially detrimental effect on the security of
the chemical source, the owner or operator must notify DHS in
writing of such changes and provide a description of such
changes. The owner or operator must also certify to DHS that it
has reviewed and made any necessary changes to its assessment
and plans and provided a description of any such modifications
to DHS. If the Secretary determines that additional
modifications, beyond what the owner or operator has made, are
required, the Secretary must provide written notice to the
owner or operator regarding the deficiencies and permit an
additional 60 days for compliance. During the time before any
revised security measures are implemented, the owner or
operator must ensure temporary security measures are
implemented to address the vulnerabilities previously
identified.
Subsection (e)--MTSA-regulated Facilities. A chemical
facility that is regulated under the Maritime Transportation
Security Act (MTSA) and designated as a chemical source under
this Act must comply with this Act. The owners and operators of
these facilities must review the vulnerability assessment,
security plans and emergency response plans that they submitted
to the Coast Guard pursuant to the MTSA and make any
modifications necessary to comply with the security performance
standards established for the tier in which it was placed under
this Act. The assessment and plans, with any appropriate
modifications, must be submitted to the appropriate Federal
Maritime Security Coordinator and the Secretary for approval
within 6 months after issuance of the regulations. Owners and
operators of these facilities must also certify in writing to
the Federal Maritime Security Coordinator for their area that
the assessment and plans are in compliance with the security
performance standards for their tier. The Secretary must
consult with the Federal Maritime Security Coordinator to
determine whether the security plan meets the security
performance standards for the pertinent tier. Chemical sources
that are regulated under the MTSA are exempt from the Section 6
requirements of this Act. The Secretary must implement this Act
in as consistent and integrated a manner as possible with the
MTSA. The Secretary must also ensure coordination between the
Undersecretary for Preparedness and the Coast Guard Commandant
in carrying out this Act for chemical sources that are also
MTSA-regulated facilities.
Subsection (f)--Alternative Security Programs. The
Secretary may also consider petitions to approve documents
prepared for alternative security programs. A person may submit
a petition to the Secretary to have him consider alternate
standards established by Federal, State or local government
authorities, or industry for a determination of whether
documents prepared for that program meet each required element
for assessments and plans under this bill. If so, the
assessments and plans prepared under that program may be
submitted without further revision. If the Secretary determines
that the documents prepared under the alternate program do not
meet all the required elements, he may specify modifications
that would be necessary for the alternate program to comply
with this bill. If an alternative security program is approved
by the Secretary, each facility covered by that program must
submit its assessments and plans to the Secretary for review in
accordance with the security performance standards for the
pertinent tier. Each facility submission must be approved or
disapproved on an individual basis.
Section 5--Recordkeeping; site inspections; production of information
Each chemical source must maintain a current copy of the
vulnerability assessment, site security plan and emergency
response plan onsite for 5 years after date of the approval
determination. The Secretary may require the submission of or
access to and may copy any records or information, including
the assessment and plans and any other documentation necessary
for the review and analysis of such assessment and plans and
the implementation of a security plan. If the Secretary
determines that an owner or operator is not maintaining,
producing, or permitting access to records or to the premises
of the chemical source as required by this section, the
Secretary may issue an order requiring compliance. The
Secretary has a right of entry to chemical sources and any
premises on which any record required to be maintained is
located. The Secretary has the authority to conduct security
audits and inspections of chemical sources to determine
compliance with the bill. The Secretary may also set
requirements for these inspections and audits by rule,
regulation or order.
Subsection (b)(2(C)--Higher Risk Tiers. The Secretary must
inspect or audit higher risk tier facilities at least once per
year. If a higher risk tier facility has been found in
compliance with this bill based upon 5 consecutive years of
audits or inspections, then the Secretary may exempt a chemical
source from this annual requirement. If the Secretary makes an
exemption, such facility must be audited or and unannounced
inspection must occur at least once per every 5 years after the
exemption determination. For higher risk tier chemical sources
that are also MTSA-regulated facilities, an audit or inspection
conducted by the Coast Guard pursuant to the MTSA shall qualify
as an audit or inspection under this section.
Section 6--Infrastructure protection and implementation
The Secretary is directed to model the implementation of
this section on MTSA. Moreover, the Department is directed to
coordinate with the MTSA Federal area security and response
committees already in place in order to provide a unified and
effective Federal security effort. DHS is directed to establish
an office within the Infrastructure Protection (IP) directorate
that will be responsible for implementing and enforcing this
bill. The Department is directed to create regional IP offices,
aligned with the FEMA regions, or the regional office of any
successor agency of FEMA, to implement this bill and coordinate
regional security. These regional offices will oversee chemical
facility compliance, conduct security inspections, audits and
drills. Further, DHS is directed to create ``areas'' and assign
a Federal security coordinator to oversee an area committee
comprised of qualified and affected security and response
personnel, including State and local government officials,
chemical facilities and local emergency planning and response
entities. Area committees would provide enhanced coordination
for security and emergency response planning. Each area must
create an area security plan and submit it to DHS for approval.
An area plan must coordinate the resources of the area to deter
or respond to a terrorist attack in the area, including
coordinating with the appropriate Federal, State and local
government agencies or local emergency planning entities. DHS
must also conduct periodic drills and exercises of security and
response capabilities for these areas. The Secretary must
publish an annual report on the drills under this provision,
including an assessment of the effectiveness of the area plans,
lessons learned, and recommendations, if any, to improve
programs, plans and procedures.
Section 7--Heightened security measures
The Secretary is authorized to issue an order to the owner
or operator of a chemical source mandating that the source
implement the ``heightened security measures'' provision
described in its site security plan pursuant to Section
4(a)(6)(H), if the Secretary determines that additional
security measures are necessary to respond to a threat. An
order issued pursuant to this authority shall not remain in
effect for a more than 90 days, unless the Secretary files an
action in Federal district court and the court authorizes an
extension.
Section 8--Penalties
Administrative penalties for failure to comply with an
order or directive issued under this bill are authorized for
not more than $25,000 per day and not more than $1 million per
year, but only after the Secretary has provided written notice
of the proposed penalty and 30 days, during which the owner or
operator may request a hearing. The Secretary must issue
regulations establishing procedures for administrative hearings
and reviews. The Secretary is authorized to pursue civil
penalties by bringing an action in U.S. district court against
an owner or operator who violates or fails to comply with an
order or directive under this bill or his approved site
security plan. The court may issue an order for injunctive
relief and award a civil penalty of not more than $50,000 per
day. Criminal penalties are authorized for of up to $50,000 per
day and/or imprisonment for up to 2 years for an owner or
operator of a chemical source who knowingly and willfully
violates any order issued by the Secretary or knowingly and
willfully fails to comply with an approved site security plan.
Section 9--Protection of Information
As noted above, the bill defines ``protected information''
to include: vulnerability assessments, site security plans,
area security plans, and security addenda to emergency response
plans, materials obtained by DHS and developed or produced by a
chemical source exclusively in preparation of the information
listed immediately above (e.g., vulnerability assessments,
etc.; and (1) documents or other information obtained by DHS or
a State or local government, but only to the extent that the
documents or information (noted in both (1) and (2)) contain an
item of information that describes a chemical source or its
vulnerabilities, was taken from a vulnerability assessment or
the other plans noted above, and, if disclosed, would be
detrimental to the security of the chemical source.
Subsection (a)--Disclosure Exemptions. The new regulatory
scheme proposed under the bill requires the Secretary to keep
information defined as ``protected information'' secure and
exempts such information from the public disclosure
requirements of the Freedom of Information Act (FOIA) or any
State or local law providing for public access to information.
The specific legislative language employed is that the
Department ``shall not be required under[FOIA] to make
available to the public protected information''; other Federal agencies
that receive a FOIA request for protected information ``shall not
disclose the record'' and shall refer the request to the Department;
and ``[a] State or local government agency shall not be required under
any State or local law providing for public access to information to
make available to the public protected information''; and, in Section
9(c), that the Secretary shall establish confidentiality protocols that
ensure records are maintained securely and that access is appropriately
limited. These provisions together mandate that DHS and other agencies
will maintain the secrecy and integrity of protected information, while
not precluding the Secretary from disclosing specific information if he
or she decides to grant public access to specific information pursuant
to a proper FOIA request if the Secretary determines circumstances so
warrant.
The Maritime Transportation Security Act (MTSA), enacted in
2002, employs similar language regarding Sensitive Security
Information (SSI) obtained by the Department for purposes of
MTSA. The relevant MTSA provision states that,
``[n]otwithstanding any other provision of law, information
developed under this chapter is not required to be disclosed to
the public.'' \117\
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\117\ See 46 U.S.C. Sec. 70103(d) (emphasis added).
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Subsection (b)--Certifications and Orders. The bill
provides guidance with respect to the handling of
certifications and orders. The bill, under Section 9(b)(1)(A),
directs that, generally, certifications of compliance from a
chemical source to DHS (under Section 4(b)(1)); failure to
comply orders from DHS to a chemical source (under Section
4(b)(3)); compliance certifications from DHS to a chemical
source (under Section 9(b)(2)); and other disapprovals and
orders issued under the bill shall not be made available to the
public under FOIA. However, Section 9(b)(1)(B)(i) provides for
an exception to this rule where the Secretary makes a specific
finding that releasing certifications of compliance from a
chemical source to DHS or compliance certifications from DHS to
a chemical source will not increase risk to a chemical source,
the Secretary may make the record available to the public under
FOIA.
Under Section 9(b)(2), when the Secretary makes a
determination that a chemical source is in compliance with the
requirements of the bill, he or she must provide a certificate
of approval to the chemical facility noting that the facility
``is in compliance with the Chemical Facility Anti-Terrorism
Act of 2006.''
As a means of measuring the overall success of chemical
facilities in implementing the requirements of the bill,
Section 9(b)(3) requires that the Secretary, at least once a
year, ``submit to Congress a public report on the performance
of chemical sources under the bill, in the aggregate, including
a description of common problems, solutions, and industry best
practices.'' This clause is intended to have the Secretary
inform Congress regarding both the advancements made, and the
problems encountered, by chemical facilities pursuant to the
requirements under the bill.
Subsection (c)--Development of Protocols. Under Section
9(c)(1) of the bill, the Secretary, in consultation with the
Director of the Office of Management and Budget and the
appropriate Federal law enforcement and intelligence officials,
``and in a manner consistent with existing protections for
sensitive or classified information,'' shall, by regulation,
establish confidentiality protocols for the maintenance and use
of records containing protected information. This clause
explicitly acknowledges other regulatory schemes relating to
sensitive or classified and states that the regulations
promulgated under this bill should be consistent with such
regulatory schemes. In drafting this legislation, the drafters
were well aware of the sensitive and classified information
protection protocols in effect, and specifically noted that the
regulations promulgated under this bill must be consistent with
such information protection regulatory schemes.
Section 9(c)(2) articulates the requirements for the
regulatory protocols promulgated under the bill and
contemplated under Section 9(c)(1). The clause states that the
protocols ``shall ensure, to the maximum extent practicable,
that'' the records shall be securely maintained, and access to
such records shall be limited as may be necessary to: ``enable
enforcement of th[e] Act,'' or ``address an imminent and
substantial threat to security, health, safety, or the
environment;'' State or local law enforcement officials, first
responders, or other officials granted access to such records
for the purpose of carrying out the bill; and ``other persons
granted access for the purpose of carrying out this Act.'' This
bill, while fostering an atmosphere of appropriate information
sharing between DHS and State and local law enforcement, first
responders and other officials, still contemplates protocols
based on a ``need to know'' standard.
Section 9(c)(3) requires the establishment of other
procedures in the regulatory protocols. Under Section
9(c)(3)(A), the regulations are to provide for the labeling of
any record containing protected information to enable the
information contained therein ``to be traced back to the
specific document from which the information was derived.''
Section 9(c)(3)(A) of this bill requires that the labeling of a
record containing protected information be sufficient to enable
a determination of ``the specific document from which the
information was derived.'' This requirement is based on the
fact that it is necessary to properly account for the genesis
of protected information given that the definition of protected
information not only specifically includes vulnerability
assessments, site security plans, area security plans, and
security addenda to emergency response plans, but also
information and materials ``developed or produced exclusively
in preparation of'' such documents, and information ``taken
from'' such documents.\118\
---------------------------------------------------------------------------
\118\ See Section 2(8)(B), (C), and (D) of the bill.
---------------------------------------------------------------------------
Section 9(c)(3)(B) states that the protocols shall
``accommodate'' the making of disclosures under 5 U.S.C.
Sec. 2302(b)(8) and an employee's right to petition Congress
under 5 U.S.C. Sec. 7211. Moreover, this section mandates that
the protocols must also provide guidance to employees as to how
to make these types of disclosures without compromising
security. This section reflects that the integrity of protected
information must be maintained without infringing upon the
protections afforded to Federal employees for proper public
interest disclosures and their right to petition Congress.
Section 9(c)(3)(C) states that the protocols shall include
procedures applicable to a FOIA request, ``requiring that any
portion of a record that reasonably may be separated shall be
provided to a person requesting the record after redaction of
any portion that is exempt from disclosure.'' This mandate is
intended to ensure that information that is not designated as
protected information under the bill is not shielded from the
public under a proper FOIA request merely because the non-
protected information exists in a document along with some
protected information.
Section 9(c)(3)(D) ensures that information designated as
protected information shall not be shielded from the public
under a proper FOIA request in perpetuity if, ``because of
changed circumstances or the passage of time, disclosure of the
record would not be detrimental to the security of a chemical
source.'' There are circumstances where information once
designated as protected information under the bill no longer
needs the sort of heightened protection provided for under the
bill. This section of the bill therefore requires the DHS
Secretary to establish procedures by which a record containing
protected information may lose its protected status under the
bill and become subject to the requirements of public
disclosure under FOIA if--because of the passage of time or
changed circumstances--disclosure of the record would not be
detrimental to the security of a chemical source.
Subsection (d)--Process for Reporting Problems. Under
Section 9(d)(1), the Secretary is required to establish and
provide information to the public regarding a process by which
a person may submit a report to the Secretary regarding
``problems, deficiencies, or vulnerabilities at a chemical
source.'' In an effort to encourage such reporting, Section
9(d)(2) states that the Secretary shall keep the identity of
any person submitting such a report confidential and that the
report itself will be treated as protected information under
the bill to the extent it does not contain information readily
available to the public.
If a report under Section 9(d)(1) identified the individual
making the report, Section 9(d)(3) requires that the Secretary
``promptly respond to such person and acknowledge receipt of
the report.''
Section 9(d)(4) ensures that the issues noted in a report
submitted under Section 9(d)(1) are properly reviewed, by
requiring that the Secretary ``review and consider the
information provided'' and ``take appropriate steps'' under the
bill to fully address the issues, problems, or deficiencies
identified in the report.
Section 9(d)(5) forbids an employer from discharging or
otherwise discriminating against an employee (or a person
acting pursuant to the request of the employee) for making a
report under Section 9(d)(1).
Section 9(d)(6) requires the Comptroller General of the
United States to describe the number and type of problems,
deficiencies and vulnerabilities identified in reports provided
to the Secretary under Section 9(d)(1). Moreover, Section
9(d)(6) also requires that the Comptroller General's report
evaluate the Secretary's efforts to address the problems,
deficiencies and vulnerabilities identified in the Section
9(d)(1) reports. The Comptroller General's reports under
Section 9(d)(6) are to be included in the annual reviews by the
Governmental Accountability Office required under Section 12 of
the bill.
Subsection (e)--Protected Disclosures. The spirit of
Section 9(e) is similar to that of Sections 9(c)(3)(B) and
9(d)(5) as described above. Section 9(e)(1) states that nothing
in the bill shall limit the right of a person to make
disclosures under 5 U.S.C. Sec. 2302(b)(8) or a person's right
to petition Congress under 5 U.S.C. Sec. 7211. Moreover,
Section 9(e)(2) preserves a person's right to make a disclosure
under any other Federal or State law that protects the
disclosing individual against retaliation or discrimination for
having made a disclosure in the public interest. Lastly,
Section 9(e)(3) preserves a person's right to make a disclosure
to the Special Counsel, the inspector general of an agency, or
any other employee designated by the head of an agency to
receive such disclosures.
Subsection (f)--Materials Not Held by Agencies. Section
9(f) notes that nothing under the bill shall be interpreted to
limit the rights or obligations of a chemical source or any
other entity that is not a Federal, State or local government
entity in possession of a record containing protected
information with respect to the withholding or disclosure of
any information or record held by the chemical source or the
entity ``regardless of whether or not the Department has
received or possesses similar or identical information or a
similar or identical record.'' Consistent with other sections
of the bill, this section reflects the drafters' intention that
the information protection clauses of the bill do not affect
any rights and obligations of a private-sector entity with
respect to a document or information in its possession, and
generally do not interfere with disclosure rights and
obligations in effect, other than those specifically noted in
the bill.
Subsection (g)--Disclosure of Independently Furnished
Information. Section 9(g)(1) establishes that the provisions of
the bill do not affect the handling or disclosure of a record
or information obtained from a chemical source under any other
law. Moreover, Section 9(g)(2) states that the bill does not
affect any authority or obligation of an agency to disclose any
record that the agency has received independently of a record
exempt from FOIA requests under Section 9, ``regardless of
whether or not the Department has an identical or similar
record that is so exempt.'' These two provisions make it clear
that if a record is produced to or obtained by an agency
independently of this bill, even if the record contains
protected information, the Chemical Facility Anti-Terrorism Act
of 2006 does not affect or control the handling, treatment, or
public disclosure of the record. The same principle for
independently furnished information can be found at 6 CFR
Sec. 29.3(d) with respect to Protected Critical Infrastructure
Information (PCII) governed by the Homeland Security Act of
2002.
Subsection (h)--Other Obligations Unaffected. Under Section
9(h)(1), the bill does not change any existing obligation of an
owner or operator of a chemical facility to provide information
to a Federal, State, or local government agency under any other
law. Section 9(h) ensures that the bill is not intended to
affect disclosure or submittal obligations under any other law
not specifically mentioned in the bill. Moreover, under Section
9(h)(2), the owner or operator of a chemical facility may not
use a record containing protected information to meet a legal
requirement other than a requirement under the bill; nor may
such a record be used to obtain a grant, permit, contract,
benefit, or other governmental approval.
Subsection (i)--Availability of Information to Congress.
Section 9(i) ensures that the bill may not be used in any way
to authorize the withholding of information from Congress.
Subsection (j)--Penalties for Unauthorized Disclosure.
Section 9(j) states that any Federal, State, or local
government officer or employee who, in a manner not permitted
by law, ``knowingly discloses'' any record containing protected
information will be imprisoned for not more than one year,
fined (under Chapter 227 of title 18, United States Code), or
both. Moreover, if the person who knowingly makes the non-
lawful disclosure is an officer or employee of the Federal
government, then he or she shall be removed from his or her
position.
Subsection (k)--Public Availability of Information in
Reports. Section 9(k) establishes that the Government
Accountability Office may not disclose any protected
information to the public in any report required of it under
Section 12.
Section 10--State and other laws
Nothing in this bill denies States or localities from
adopting or enforcing chemical security requirements that are
more stringent than the standard under this bill, unless there
is an actual conflict between a provision of this bill and the
law of a State or locality. In addition, nothing in this bill
would preclude or deny the right of any State or locality to
adopt or enforce any requirement, including air or water
pollution requirements that are directed at problems other than
reducing damage from terrorist attacks.
Section 11--National strategy for chemical security
The Secretary is directed, within 6 months following
enactment of this bill, to submit to the Senate Homeland
Security and Governmental Affairs Committee, and the Homeland
Security Committee and the Energy and Commerce Committees of
the House of Representatives, an update of its national
strategy for securing the chemical sector.
Section 12--Government accountability office review
The Department is directed to provide the U.S. Government
Accountability Office (GAO) with access to any document or
information required to be submitted to, generated by, or
otherwise in the possession of the Department under this Act.
GAO is required to submit a report annually to the Senate
Homeland Security and Governmental Affairs Committee and
Committee on Homeland Security of the House of Representatives
and the Energy and Commerce Committee of the House of
Representatives, a review of vulnerability assessments, site
security plans and emergency response plans under this bill,
and a determination of whether such plans and assessments are
in compliance with this bill.
Section 13--Judicial actions
Any person is permitted to file a petition with the U.S.
Court of Appeals for the District of Columbia for judicial
review of a rule within 60 days of promulgation. The court is
directed to review rules in accordance with the Administrative
Procedure Act (5 U.S.C. Sec. 701 et seq.). The bill allows only
an owner or operator whose facility is affected by a final
agency action to file a petition in U.S. district court within
60 days of its issuance. Only the owner or operator and the
Secretary may participate in such civil actions. The bill
precludes judicial review of final agency actions except as
specified in this section and Section 7(b). The bill prohibits
private civil actions against an owner or operator to enforce
provisions of this bill.
Section 14--Ammonium nitrate
The Secretary, in consultation with the Secretary of
Agriculture, is directed to regulate the handling and sale of
ammonium nitrate to prevent misappropriation or use in
violation of law. The bill requires the registration of
facilities and purchasers. The bill restricts sales to
registered producers, sellers, and purchasers, and further
requires that records of sales or distribution must be
maintained. The registration information shall be treated as
protected information under this bill. The Secretary of
Homeland Security is authorized to establish a process for
auditing handler records to determine compliance. Penalties for
violations and compliance failures are authorized.
Section 15--Authorization of appropriations
The bill authorizes such sums as are necessary to carry out
this Act.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
July 25, 2006.
Hon. Susan M. Collins,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2145, the Chemical
Facilities Anti-Terrorism Act of 2006.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Susanne S.
Mehlman (for federal costs), who can be reached at 226-2860,
Melissa Merrell (for the state and local impact) and Paige
Piper/Bach (for the private-sector impact).
Sincerely,
Donald B. Marron,
Acting Director.
Enclosure.
S. 2145--Chemical Facilities Anti-Terrorism Act of 2006
Summary: S. 2145 would authorize the Department of Homeland
Security (DHS) to regulate the security of chemical facilities
across the United States. Under the bill, DHS would identify
such facilities and estimate the level of risk they pose to the
nation's security. DHS would develop regulations to require the
owners and operators of those facilities to perform
vulnerability assessments and to establish site security plans
and emergency response plans. The legislation would establish a
chemical security office at DHS headquarters and offices at the
regional level that would be responsible for auditing and
inspecting the security of the nation's chemical facilities. In
addition, DHS would be responsible for maintaining the
information it receives on chemical facilities in a secure
location. Finally, S. 2145 would require DHS to regulate the
handling and purchase of ammonium nitrate.
CBO estimates that implementing S. 2145 would cost $255
million over the next five years, assuming appropriation of the
necessary amounts. Of that amount, $210 million would be used
to regulate and oversee an estimated 15,000 to 18,000 chemical
facilities. The remaining $45 million would be used by DHS to
regulate the handling and purchase of ammonium nitrate.
Enacting S. 2145 could affect direct spending and receipts
because the bill would establish new civil and criminal
penalties against owners and operators of chemical facilities,
handlers of ammonium nitrate, and officers or employees of
federal, state, or local government agencies who fail to comply
with the bill's requirements. However, CBO estimates that any
collections from such civil and criminal penalties would not be
significant.
S. 2145 contains intergovernmental mandates, as defined in
the Unfunded Mandates Reform Act (UMRA), because it would
require the owners and operators of certain facilities,
including those that provide public drinking water and
wastewater treatment, to undertake measures to protect against
the unauthorized release of chemical substances. It also would
exempt certain security plans and documents from state and
local laws that provide public access to information and
preempt the authority of states to regulate the sale of
ammonium nitrate in a manner that is less stringent that the
requirements of the bill.
Because some of the mandates are dependent upon future
actions of the Department of Homeland Security, CBO cannot
determine their exact costs. However, based on information from
DHS and representatives of public water facilities, CBO
estimates that, because it is likely those public facilities
would be assigned to the lowest tier of risk and that DHS
likely would consider activities that the facilities are
currently doing to be sufficient to meet the requirements of
this bill, additional costs for those public facilities would
not exceed the annual threshold established in UMRA ($64
million for intergovernmental mandates in 2006, adjusted
annually for inflation).
S. 2145 also would impose private-sector mandates, as
defined in UMRA on owners and operators of certain chemical
facilities and handlers and purchasers of ammonium nitrate.
Based on information from industry and government sources, CBO
expects that the aggregate direct cost of complying with those
mandates would exceed the annual threshold established by UMRA
for private-sector mandates ($128 million in 2006, adjusted
annually for inflation) in at least one of the first five years
the mandates are in effect.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 2145 is shown in the following table.
For this estimate, CBO assumes that the bill will be enacted
near the end of fiscal year 2006, that the necessary amounts
will be appropriated for each year, and that outlays will
follow historical spending patterns for similar activities. The
costs of this legislation fall within budget function 750
(administration of justice).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------
2006 2007 2008 2009 201O 2011
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
DHS Spending on Security of Chemical Sites Under Current Law:
Budget Authority \1\........................................ 15 0 0 0 0 0
Estimated Outlays........................................... 10 5 0 0 0 0
Proposed Changes:
Regulation Development, Review of Vulnerability Assessments,
Site Security Plans, and Emergency Response Plans:
Estimated Authorization Level........................... 0 13 1 1 1 1
Estimated Outlays....................................... 0 11 3 1 1 1
Establish Chemical Security Office and Regional Offices for
Site Audits and Inspections:
Estimated Authorization Level........................... 0 (*) 30 45 45 45
Estimated Outlays....................................... 0 (*) 30 45 45 45
Maintain Chemical Site Information:
Estimated Authorization Level........................... 0 20 2 2 2 2
Estimated Outlays....................................... 0 18 4 2 2 2
Regulate Handlers and Purchasers of Ammonium Nitrate:
Estimated Authorization Level........................... 0 6 10 10 10 11
Estimated Outlays....................................... 0 5 9 10 10 11
Total Proposed Changes:
Estimated Authorization Level....................... 0 39 43 58 58 59
Estimated Outlays................................... 0 34 46 58 58 59
DHS Spending. on Security of Chemical Sites Under S. 2145:
Estimated Authorization Level \1\........................... 15 39 43 58 58 59
Estimated Outlays........................................... 10 39 46 58 58 59
----------------------------------------------------------------------------------------------------------------
\1\ The 2006 level is the amount appropriated for DHS to address security issues at chemical facilities in that
year.
Note: * = less than $500,000.
Basis of estimate: CBO estimates that implementing this
legislation would cost $34 million in 2007 and $255 million
over the 2007-2011 period, subject to appropriation of the
necessary amounts. In addition, CBO estimates that enacting S.
2145 could have an insignificant effect on direct spending and
receipts by creating new criminal and civil penalties related
to compliance with the bill's provisions.
Regulation development and risk assessment
S. 2145 would require DHS to develop various regulations
identifying facilities as chemical sources, determining the
risk to the nation's security associated with those facilities,
setting security performance standards for chemical facilities,
and detailing the requirements for vulnerability assessments,
security plans, and emergency response plans for chemical
facilities. CBO estimates that implementing these provisions of
the legislation would cost $17 million over the next five
years, subject to appropriation of the necessary amounts.
Based on information from DHS, CBO estimates that over the
2007-2008 period, efforts to develop necessary regulations
would require about 15 staff-years at a cost of about $2
million, and $8 million for related contractor support for
information technology, meeting and conference planning, and
assistance in conducting various studies. In addition, under
the bill, facilities that involve higher security risks would
have to undergo a more detailed facility assessment. Currently,
DHS is in the process of developing a risk assessment framework
known as Risk Analysis and Management for Critical Asset
Protection (RAMCAP). According to DHS, additional funding would
be required to refine and manage the RAMCAP process to meet the
bill's requirements for assessing risk. Based on information
from DHS, CBO estimates that $3 million in 2007 and $1 million
a year in subsequent years would be needed for additional
training and technical modifications to RAMCAP to comply with
requirements of S. 2145.
Chemical security office and regional offices
The bill would direct DHS to create a chemical security
office. The new office would be responsible for planning,
management, assignment of facilities to risk tiers, review and
maintenance of site vulnerability assessments and plans, and
enforcement. Regional employees of the chemical security office
would oversee facility compliance, conduct large-scale
emergency response exercises, and work with local law
enforcement and first responders on security and emergency
planning. In addition, DHS expects that the regional offices
would have primary responsibility for conducting audits and
inspections of thefacilities to verify whether they are meeting
applicable requirements. Under the bill, most of the nation's 15,000 to
18,000 chemical facilities would be audited or inspected over the next
10 years. In total, CBO estimates these efforts would cost $165 million
over the 2007-2010 period, subject to appropriation of the necessary
amounts.
Based on information from DHS, CBO expects that the
chemical security office would be operational by 2008 and fully
staffed by 2009. We estimate that the office would require a
staff of 20 with a first-year cost of about $2 million, and
would need about $13 million for contractor support and
information technology in 2008. In subsequent years, CBO
estimates that $20 million would be required, including $5
million for a staff of 50 and $15 million for contractor costs,
travel expenses, and information technology.
According to DHS, the agency would spend less than $500,000
in 2007 to study how the field offices should be structured to
meet the requirements of this legislation. DHS would need
additional resources to audit and inspect chemical facilities
and to oversee large-scale emergency response exercises and to
coordinate efforts with local first responders. CBO estimates
that DHS would spend about $15 million in 2008 to begin these
effects, using a staff of 35 at a cost of about $4 million, and
$11 million for contractor support, travel expenses, and
information technology. After these initial efforts, we
estimate that DHS would spend about $12 million on a staff of
120 plus $13 million for related costs each year over the 2009-
2011 period.
Maintain chemical site information
Based on information from DHS, CBO estimates that DHS would
need about $20 million in 2007 to construct facilities to store
the site chemical information it collects in a secure
environment and to provide funding for information technology
and support services for tracking such information. In
subsequent years, CBO estimates that DHS would require $2
million to provide ongoing support to maintain the site
information.
Regulate handlers and purchasers of ammonium nitrate
S. 2145 would require DHS to regulate the handling and
purchase of ammonium nitrate. To meet this requirement, DHS
would develop regulations requiring handlers of ammonium
nitrate to register facilities, to sell or distribute ammonium
nitrate only to registered handlers and purchasers, and to
maintain records of sale. S. 2145 also would direct DHS to
periodically inspect and audit these records.
Based on information from industry associations, CBO
estimates that there are about 2,000 handlers of ammonium
nitrate in the United States. Based on the number of personnel
employed by the Bureau of Alcohol, Tobacco, Firearms, and
Explosives to inspect handlers of firearms and explosives, CBO
expects that DHS would need to hire about 60 people to carry
out field inspections and audits of ammonium nitrate handlers.
Once fully phased in, CBO estimates that the costs of these
additional employees would reach $8 million annually, including
salaries, benefits, training, and support costs. For this
estimate, we assume that the new positions would be fully
staffed by fiscal year 2008.
In addition, we estimate that DHS would need to hire about
20 people to register and communicate with handlers of ammonium
nitrate, write regulations, and administer this new program. We
estimate that costs for these personnel would total $2 million
annually.
S. 2145 would permit DHS to enter into agreements with
states to register and inspect handlers of ammonium nitrate.
Under the bill, DHS would reimburse states for their costs to
carry out those responsibilities if states chose to enter into
such agreements with DHS. CBO expects that the cost to carry
out those registrations and inspections would be similar
whether conducted by states or DHS.
Government Accountability Office (GAO) studies
The legislation also would require GAO to prepare annual
reports that would review the vulnerability assessments, site
security plans, and emergency response plans submitted by the
facilities no later than January 1 of the first year following
the calendar year in which the regulations are developed and
annually thereafter. CBO estimates that GAO would require less
than $500,000 annually beginning in 2008 for such reports.
Estimated impact on State, local, and tribal governments:
S. 2145 contains several intergovernmental mandates as defined
in UMRA. First it would require owners and operators of certain
chemical facilities to undertake specific measures to protect
against terrorist attacks, criminal acts, or other categories
of chemical releases, based on regulations to be developed by
DHS. Because the sites would be selected from public and
private entities (including public drinking water and
wastewater treatment facilities), the bill would impose
intergovernmental mandates as defined in UMRA.
The bill also includes two preemptions of state and local
authority. It would exempt certain security plans and documents
from state and local laws that provide public access
toinformation and preempt the authority of states to regulate the sale
of ammonium nitrate in a manner that is less stringent than the
requirements of the bill. CBO estimates that the cost for state and
local governments to comply with those mandates would be small and
therefore would not exceed the annual threshold established in UMRA
($64 million for intergovernmental mandates in 2006, adjusted annually
for inflation).
Requirement for vulnerability assessments and security plans
S. 2145 would require that owners and operators of affected
facilities conduct an assessment of the vulnerability of their
facility, identify the hazards that may result from a
substance's release, and develop and implement a security plan
to prevent or respond to those releases. S. 2145 would further
require that owners and operators certify completion of both
the assessment and plan, submit copies to DHS, maintain records
at the facility, and complete a periodic review of the
assessment and plan.
According to government and industry representatives, many
of the facilities potentially affected by the bill's provisions
are currently engaged in activities similar to those that would
be required under S. 2145. Such facilities are acting either in
response to the terrorist attacks of September 11, 2001, as a
condition of membership with chemical industry associations, or
to comply with the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002, the Maritime
Transportation Security Act, or other federal regulations.
Information from DHS indicates that public water facilities
likely would be assigned to the lowest tier of risk and that
the department likely would consider activities that the
facilities are currently doing to be sufficient. Assuming
public facilities would not be required to undertake
significant new activities, CBO expects that these mandates
would impose little additional costs on those facilities.
Preemption of State authority to regulate ammonium nitrate
S. 2145 would preempt the authority of states to regulate
the sale of ammonium nitrate in a manner that is less stringent
than the requirements of this bill. Currently nine states
regulate the sale of ammonium nitrate, though none of those
regulations are the same as the provisions of this bill, and
all would be preempted. This bill would not require states to
upgrade those regulations; rather the states could choose to
stop regulating such sales and allow the federal government to
do so. CBO estimates the states would incur little, if any,
direct costs as a result of that preemption. The bill would
allow states to enter into cooperative agreements with the
federal government to implement the requirements of the bill
and the Secretary of DHS would be authorized to provide those
states with sufficientfunds to carry out such duties. CBO
cannot estimate how many states may opt to implement those regulations,
but assuming appropriation of funds, any costs incurred by those states
would be paid for by the federal government.
Estimated impact on the private sector: S. 2145 would
impose private-sector mandates, as defined in UMRA, on owners
and operators of certain chemical facilities and handlers and
purchasers of ammonium nitrate. Based on information from
industry and government sources, CBO expects that the aggregate
direct cost of complying with those mandates would exceed the
annual threshold established by UMRA for private-sector
mandates ($128 million in 2006, adjusted annually for
inflation) in at least one of the first five years the mandates
are in effect.
Chemical facilities
S. 2145 would require the Secretary of Homeland Security to
issue regulations regarding the security of the chemical
industry. The bill would require that not later than one year
after the date of enactment, the Secretary would be required to
establish security performance standards for chemical sources
based on a risk-based tier system. Each chemical facility would
be required to file a petition with DHS for a determination on
whether the facility should be designated as a chemical source.
In addition, not later than one year after the date of
enactment of the bill, the Secretary of DHS would be required
to promulgate regulations that would require the owner or
operator of each chemical source to conduct a vulnerability
assessment, to prepare and implement a site security plan, and
to prepare and implement an emergency response plan. The owner
or operator of a chemical source also would be required to
retain a copy of the assessment, the site security plan and the
emergency response plan for not less than five years after the
assessment and plans are approved by the Secretary.
According to industry and government sources, a large
number of facilities are currently engaged in activities
similar to the types of assessments and planning that would be
required under this bill. According to those sources,
approximately 15,000 to 18,000 chemical facilities would be
affected by the security regulations. While the direct cost of
complying with those mandates would depend on the regulations
to be issued by DHS, based on information from industry and
government sources, CBO expects that the incremental cost to
comply with the security standards outlined in the bill would
be substantial and would exceed the annual threshold
established in UMRA in at least one of the first five years
those requirements are in effect.
Whistleblower protection
The bill also would prohibit owners or operators of
chemical facilities from discharging any employee, or otherwise
discriminating against such employees in the terms, conditions,
or privileges of their employment because the employee
submitted a report to the Secretary regarding problems or
vulnerabilities at a chemical facility. Based on information
from government sources, CBO estimates that those chemical
sources would incur minimal, if any, direct cost to comply with
such protection requirements for their employees.
Ammonium nitrate
The bill also would impose mandates on producers, sellers,
and purchasers of ammonium nitrate by requiring the Secretary
of Homeland Security to regulate the handling and purchasing of
the fertilizer. The Secretary would be required to promulgate
regulations that would require producers and sellers of
ammonium nitrate:
To register facilities where ammonium
nitrate is produced or sold;
To sell or distribute ammonium nitrate only
to registered handlers and purchasers; and
To maintain records of sale or distribution
that include the name, address, telephone number, and
registration number of certain purchasers.
In addition, the regulations would require purchasers of
ammonium nitrate to be registered.
Under current law, some producers and sellers of ammonium
nitrate are required to submit information to the Attorney
General. According to government and industry sources, the
regulations would result in a modest increase in administrative
costs to ammonium nitrate handlers and purchasers. Based on
that information, CBO estimates that the direct cost to comply
with those mandates would be small relative to the annual
threshold.
Previous CBO Estimate: On June 11, 2006, CBO transmitted a
cost estimate for H.R. 3197, the Secure Handling of Ammonium
Nitrate Act of 2006, as ordered reported by the House Committee
on Homeland Security on June 14, 2006. Section 14 of S. 2145 is
similar to that bill and CBO's estimates of the costs for H.R.
3197 and section 14 of S. 2145 are identical.
Estimate prepared by: Federal Costs: Susanne S. Mehlman.
Impact on State, Local, and Tribal Governments: Melissa
Merrell. Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
VII. CHANGES IN EXISTING LAW
In compliance with paragraph 12 of the Standing Rules of
the Senate, changes in existing law made by S. 2145, as
reported, are shown as follows: there is no change to existing
law.
VIII. ADDITIONAL VIEWS
----------
ADDITIONAL VIEWS OF SENATOR VOINOVICH
I commend the Committee Chairman and Ranking Member for
their leadership on S. 2145, the Chemical Facility Anti-
Terrorism Act of 2005.
The U.S. chemical sector is a major part of our nation's
economic infrastructure and vitality. It includes chemical
manufacturing, agriculture, healthcare, oil and natural gas,
forest and paper, mining, dairy, and energy. Accordingly,
chemical security legislation is of critical importance to our
homeland security.
I am pleased that legislation has been advanced that would
provide comprehensive, risk-based standards that will protect
chemical facilities and surrounding communities from terrorist
attack. I am also pleased that agreement was reached on several
of the amendments brought before the Homeland Security and
Governmental Affairs Committee. However, I must express my
serious concerns with certain provisions of S. 2145 as passed
by the Committee on June 15, 2006.
The bill reported out of Committee could make communities
more vulnerable by:
Promoting an unnecessary, redundant, complex
and confusing patchwork of local, state and federal
security regulations that would provide for
inconsistent levels of security across the country;
Allowing the release of sensitive security
information to potential terrorists;
Disrupting ongoing security operations;
Creating the opportunity to define private
sector process change as a security measure; and
Placing regulated industries at a
competitive disadvantage with the potential to lead to
facility closures and the loss of jobs to overseas
competitors, hurting the surrounding communities that
ironically, this bill intends to protect.
While I wholeheartedly support the goal of ensuring the
security of our nation's critical infrastructure, these issues
must be addressed before S. 2145 becomes law.
Federal preemption
Throughout Section II of the Committee Report, the need for
``a comprehensive national chemical security strategy'' is
emphasized. The report concludes that nearly five years after
the attacks of September 11, 2001, ``the Federal government is
authorized to regulate only segments of the chemical sector,
creating a patchwork of regulation.'' Additionally, numerous
witnesses testified regarding the importance of Federal
preemption and the need to eliminate the patchwork of
regulatory authority.
In the Discussion of Legislation, Section III of the
Committee Report states that S. 2145 ``will replace an existing
patchwork of voluntary and regulatory'' measures. I strongly
agree with the need to have a strong federal regulatory
authority, but S. 2145 does not accomplish this goal. Rather
the bill encourages states to further regulate facilities by
declaring that none of its provisions affect any ``right'' of
states to impose ``more stringent'' requirements. The bill's
only limit on state regulation is if they ``actual[ly]
conflict'' with a provision of the bill. Without strict federal
preemption, the States will have incentive to further regulate
facilities, regardless of this language.
Article I Section 8 of the Constitution clearly states that
Congress is delegated the power to provide for the common
defense. We, in the Congress, have the duty to provide for the
security of our states and our people. The absence of strong
preemption language is an abdication of the Federal
Government's Constitutional responsibility to national defense.
Without Federal preemption, we also run the risk of
disparate regulatory standards as states establish their own
regulatory regimes in addition to the federal standard. Federal
preemption of state regulation is necessary to establish a
single set of national standards to avoid a confusing, costly,
and inconsistent patchwork of security regulations with which
the chemical industry has to comply.
Strong protection of information
S. 2145 as introduced limited the degree of protection it
provided for sensitive security information that DHS obtains
from a chemical facility under the bill. Though I am pleased
that many of these shortcomings were addressed during the
Committee's consideration of the bill, S. 2145 still does not
adequately protect sensitive security information. It contains
no provision for protecting ``protected information'' submitted
by DHS to a court or administrative law judge in the course of
an enforcement action. It does not protect ``protected
information'' in the hands of facility owners and operators
from civil discovery. Further, it does not forbid the release
of ``protected'' information by anyone at the Federal, State or
local level.
When the Federal government compels the disclosure of
sensitive security and business related information from the
private sector for the purpose of national security, this
information should be comprehensively protected from public
disclosure. Inadequate protection of information could provide
terrorists and other criminals with a blue-print of the
vulnerabilities of this nation's chemical sector. Congress must
adequately protect sensitive security information by ensuring
that the information shall not be subject to release or
discovery in judicial or administrative proceedings, and that
sensitive security information shall not be disclosed under any
State or local law providing for public access to information.
Current security operations
The U.S. Coast Guard enforces the performance-based
standards of the Maritime Transportation Security Act (MTSA)
for many of the nation's largest chemical plants. This bill
would require those facilities that are already complying with
MTSA to also comply with this act. The report states that ``the
Committee does not want to duplicate efforts;'' however, the
language in S. 2145 would do exactly that. S. 2145 subjects
those facilities already regulated under MTSA to unnecessary
additional regulation. This requirement would be unduly
burdensome for companies that have already gone to great
lengths to secure their facilities.
On July 17, 2005, Coast Guard Admiral Craig E. Bone
testified before the Committee that under MTSA, the Coast Guard
reviews and approves federal security plans for over 300
chemical facilities. In addition to that, the Coast Guard has
completed inspections of all facilities that currently have
Facility Security Plans or Alternative Security Plans to verify
that they are in compliance. Admiral Bone described the
compliance by the industry as ``commendable.'' We should not
only allow, but encourage the Coast Guard to maintain the
working relationship that it has established with those
chemical facilities it regulates. S. 2145 should not disrupt
this effective regulatory regime. We must harmonize the
regulatory regime that this bill would establish withexisting
Federal law and private sector efforts to provide for the security of
chemical facilities. With seamless integration, we will both enhance
security and preserve the working relationship between the Coast Guard
and those facilities regulated under MTSA.
Environmental provisions
The report notes that the bill's definition of a security
measure might include ``the modification, processing,
substitution, or reduction of substances of concern'' as
indicated in Section 2(11)(B)(vii)(III).'' It further states
that, although the terms are recognized as elements of the
concept of inherently safer technology (IST), they ``are not
included in the bill to provide the Secretary with the power to
require a facility to implement IST.''
First, there is no precedent for including the concept of
process change in a security bill. The concept is not
consistent with security precedent set by the BioTerrorism Act,
the Maritime Transportation Security Act, the Atomic Energy
Act, or the Homeland Security Act. These laws focus on
hardening facilities, not mandating ``private sector'' process
change.
Second, IST is a safety and environmental issue to be
addressed before the Environment and Public Works Committee.
Within the executive branch, safety and environmental concerns
are addressed and regulated by the Occupational Safety and
Health Administration and by the Environmental Protection
Agency (EPA), respectively through their Process Safety
Management and Risk Management Program rules, not the
Department of Homeland Security. Though the EPA encourages
consideration of IST, during the Clinton Administration, EPA
consciously chose not to mandate either analyses or
implementation of IST, in their Risk Management Program. The
preamble to the RMP rulemaking states the following:
EPA has decided not to mandate inherently
safer technology analyses;
As many commenters, including those that
support such analyses, pointed out, an assessment of
inherently safer design alternatives has the most
benefit in the development of new processes;
Although some existing processes may be
superficially judged to be inherently less safer than
other processes, EPA believes these processes can be
safely operated through management and control of the
hazards without spending resources searching for
unavailable or unaffordable new process technologies'';
``Inherently safer processes'' is a
developing concept and is not ready for general
application; and
The implementation of IST frequently
displaces risk rather than reducing it.
Given this conclusion, it would be premature at best to
include this concept in a security bill. The IST language
should be removed from S. 2145.
Conclusion
Despite these concerns, I wholeheartedly support the goal
of ensuring the security of our nation's critical
infrastructure. I look forward to continuing to work with all
interested Senators to improve this important homeland security
legislation.
George V. Voinovich.
ADDITIONAL VIEWS OF SENATORS LIEBERMAN, AKAKA AND LAUTENBERG
This bill is the product of extensive work in the Homeland
Security and Governmental Affairs Committee to explore the
risks of a possible terrorist attack on our chemical
facilities, as well as the best means to guard against those
risks.
The report well summarizes the background and need for this
legislation, as well as the provisions of the bill. It reflects
the strong bipartisan consensus behind most of the provisions
of this legislation. We write separately, however, to express
our distinct views on a few key areas of the legislation--the
role of safer technologies to promote security, protection of
information, and judicial review--and to underscore the
importance of the bill's language on preemption.
Inherently Safer Technology (IST)
This legislation recognizes that sometimes the best
security will come not from adding guards and gates, but from
reexamining the way chemical operations are carried out in
order to reduce the amount of hazardous substances on site,
improve the way they are stored or processed, or find safer
substitutes for the chemicals themselves. These changes limit
the loss of life or other damage in the event of an attack, and
therefore make a facility a less inviting target for terrorists
to begin with. They also have the added benefit of limiting the
harm from an accidental release. This bill clearly requires
facilities to look at the risks and consequences related to the
dangerous chemicals on site and address those specific
vulnerabilities in their security plan. And it includes these
process changes among the menu of security measures that
chemical facilities should examine when designing their
security plans.
Indeed, the central mission of this bill is to help these
facilities reduce their risk. One of the most effective ways to
reduce risk is to reduce the consequence of an attack, and the
most effective way to eliminate consequence for certain
facilities may be the reduction of deadly chemicals on site,
the modification of the way they are made, or the substitution
of safer chemicals.
It is common sense that if a facility owner can replace a
deadly chemical with a safer chemical that would not kill
thousands of people, if released, then at the very least DHS
should be able discuss such a consequence-reducing measure with
an owner of a chemical facility. As repositories of extremely
dangerous chemicals, too many of these facilities are--in the
words of homeland security expert Steve Flynn--sitting
``weapons of mass destruction.'' But as soon as they switch to
safer chemicals or processes, the weapon is disarmed.
During our hearings, we heard from several experts about
the importance and viability of this approach for enhancing
security as well as safety. The Honorable Gerald V. Poje,
former Board Member, U.S. Chemical Safety and Hazard
Investigation Board, testified on July 13, 2005 before the
Committee, stressing the connection between safety and
security, saying ``I urge the Committee to see the development
and maintenance of competent management systems for safety as
essential underpinnings to enhanced security.'' Also testifying
before the Committee on the same day, Glenn Erwin, Project
Director, Triangle of Prevention Program, United Steelworkers
International Union, advocated substituting less toxic
materials where possible toreduce the potential risk to human
life or storing smaller volumes of these chemicals, and said a
mandatory review of such options should be part of a chemical security
program.
Also on July 13, 2005, Carol L. Andress, Economic
Development Specialist, Environmental Defense, testified that
numerous water and wastewater facilities and refineries have
already dramatically reduced their risk of a catastrophic
accident or terrorist attack by switching to safer chemicals
and processes. We had a powerful example of such an adjustment
close by: after 9/11 focused our attention on potential targets
in our midst, Washington D.C.'s water treatment facility ended
the use of its potentially deadly liquid chlorine. Indeed,
according to an April 2006 study by the Center for American
Progress, almost 300 facilities that used acutely dangerous
chemicals have dramatically reduced the risk to workers and
surrounding communities by switching to less dangerous
chemicals or processes. These include an array of facilities in
fields ranging from electric power production to glass
manufacturing to hazardous waste processing.
We know that many facilities, and many security experts,
already look to these less dangerous technologies as a potent
and cost-effective way to improve security against a possible
terror attack. But we also know that, for some facilities,
there can be reluctance or structural impediments to looking at
these technological solutions. That is why we feel this bill
should go further and include more explicit requirements for
chemical facilities to consider less dangerous technologies
when they make the security enhancements required under this
bill. In particular, the riskier facilities--some of which
could endanger tens or hundreds of thousands of lives if
attacked--should have to demonstrate that they have looked
closely at options that would reduce the catastrophic
consequences of a possible terrorist attack.
During markup, Senator Lieberman and Senator Lautenberg
offered an amendment that would have required that at least 360
of the most high risk chemical facilities examine safer
technologies as a means to improve security, and implement them
where feasible.
This is not a question of forcing industry to conduct its
operations off a government-issued play book. Companies would
analyze for themselves whether there are less dangerous ways to
conduct their business and would not be required to implement
any changes that were not feasible or merely shifted risk
elsewhere. But given the extraordinary risks involved, it makes
little sense not to require companies to at least take a long
hard look at some of the common-sense solutions that have been
advocated or already adopted by others within the industry.
We regret that our colleagues did not adopt the Lieberman-
Lautenberg amendment, and we will continue to work to try to
have such a provision adopted as part of final chemical
security legislation.
Protection of information
Of course, none of us would want to release sensitive
information about a chemical plant that would be useful to a
terrorist. However, excessive secrecy in a government security
program can actually makes us less, not more safe. This is
because some degree of transparency is necessary to help us
make government programs more accountable and effective. Also,
local communities and their elected officials deserve to know
whether local facilities are being kept safe against a
terrorist attack, and the community's vigilance can help make
us all safer.
We believe that the S. 2145 bill that the Chairman and
Senator Lieberman introduced achieved the right combination of
protecting real security information, while allowing enough
disclosure to create accountability. We regret, however, that
the Committee agreed to an amendment offered by Senator
Voinovich that would tilt that balance in the direction of
undue secrecy. Under the original bill, orders and
certifications would be released to enable the community to
know whether they are being kept safe and to keep the program
accountable. But the Secretary could postpone the release of
any order or certification as long as necessary, whether to
give the source time to fix a problem, or for any other reason
if the Secretary thinks that release would risk security.
Senator Voinovich's amendment changed that and now the bill
would require all orders to be kept secret, and would even make
certifications and certificates of compliance secret unless the
Secretary makes a specific finding that release would not
create a security risk. Some have expressed concern that if DHS
tells the public whether certain chemical plants are in
compliance or not, terrorists will know where to devote their
attention. However, we believe that concern is just not
realistic. While the orders or certificates made public would
identify the facility, they would not provide any detail about
the facility or the kind of vulnerability involved. Moreover,
if there ever actually were a potential risk from disclosing an
order or certification, the original bill authorized the
Secretary to protect this information, and keep it from being
released to the public as long as necessary.
Judicial review
We deeply regret that during markup our colleagues adopted
language that would restrict judicial review under the
regulatory program that would be established by the bill. These
restrictions were added in an amendment offered by Senator
Voinovich and received almost no discussion at the markup. They
create a one-sided regime in which chemical facilities can
challenge a regulatory determination regarding their facility,
but no other parties can bring such a challenge or even
participate in a proceeding initiated by industry. It also
appears to preclude an array of possible challenges regarding
overall administration of the chemical security program,
including a lawsuit challenging lax administration or ``failure
to act'' by the Department.
We are unaware of any comparable restrictions for a similar
program and proponents have not offered any clear justification
for them. The Administrative Procedures Act, which governs
these questions in the absence of overriding statutory language
such as Senator Voinovich's amendment, already contains a
series of checks and balances that have been carefully
developed over time. Courts have well established procedures
for handling sensitive or classified information. No one has
explained to us why this system is not adequate to handle the
chemical security program proposed by this legislation. In the
absence of a compelling need, we do not think we should tamper
with the rights of concerned parties to seek judicial review
under this critical program. We are dealing with an issue that
has enormous consequences for the lives and safety of hundreds
of thousands of people living within range of a chemical plant;
we should not restrict the right to seek judicial review under
the chemical security program unless we have identified an
overriding need to do so.
Anti-preemption
Finally, we wish to emphasize the importance of this bill's
provision regarding preemption. This bill recognizes that
Congress is not the only body that can and should help ensure
the safety and security of the nation's chemical facilities.
States and localities have long regulated such facilities for
various safety and environmental concerns. Since 9/11, some
states have also moved to require security improvements at
these facilities. These state and local protections are
critical companions to our effort at the federal level, and we
are pleased that this bill states clearly that it does not
preempt state and local laws or regulations regarding the
safety and security of chemical facilities. States and
localities are free to enact more stringent chemical security
legislation. Only if there is an absolute conflict, such that
it is impossible for a facility to comply with both the federal
law and a state or local law or regulation on chemical
security, would the federal provision take precedence. The bill
would not disrupt state and local safety and environmental law
regarding chemical facilities, nor does it seek to dislodge or
alter the operation of state common law with respect to such
facilities. We are pleased that during markup the Committee
voted to reject an amendment that would have weakened this non-
preemption mandate in the bill.
Frank R. Lautenberg.
Daniel K. Akaka.
Joe Lieberman.
ADDITIONAL VIEWS OF SENATOR LAUTENBERG
Securing our chemical facilities from terrorist or other
criminal attacks is one of the most important steps that
Congress can take to protect the public from grievous harm, and
our infrastructure and economy from severe disruption. I am
frustrated and disturbed at how difficult it has proven, in the
wake of 9/11, for Congress and the President to ignore the
clamor of special interests and pass a strong, meaningful
chemical security bill.
I introduced the first chemical security bill in Congress
in 1999. Since then, I have worked with my fellow New Jersey
Senators, John Corzine and Robert Menendez, to advance federal
chemical security legislation and protect the right of New
Jersey and other states to adopt strong chemical security
protections.
This year, I introduced a new chemical security bill, S.
2486, the Chemical Security and Safety Act of 2006, with
Senators Obama, Menendez, Kerry, Durbin and Biden. I did this
in part because there are several important elements that I
believe should be part of any chemical security bill Congress
passes, that are not yet part of S. 2145. Some of these
elements are briefly summarized below.
Inherently safer technology
We should not mislead people to believe that simply adding
gates, guards, and guns at our chemical facilities will be
sufficient to protect workers and nearby residents from a
terrorist attack. The legislation that I introduced in 1999
required the nation's highest risk chemical facilities to adopt
``inherently safer technology'' (IST) to the maximum extent
possible. That approach made sense two years before 9/11, and
it makes even greater sense now. The bill I introduced this
year contains a similar approach, requiring the adoption of IST
where possible. Whether substituting safer chemicals, adopting
different manufacturing processes, reducing the amount of
chemicals stored on site, or making other changes at these
high-risk facilities, it is appropriate to improve the safety
and security of the public from attacks or accidents where it
is possible to do so.
The Bush administration, the chemical industry, and others
continue to suggest that IST is simply an environmental issue,
unrelated to the issue of national security. But a recent
report by the National Research Council of the National Academy
of Sciences found ``the most desirable solution to preventing
chemical releases is to reduce or eliminate the hazard where
possible, not to control it.'' (Emphasis added) This study was
requested by the Department of Homeland Security (DHS), and was
written by a panel of chemical industry members, consultants,
and academics. Their conclusion was about the benefits of IST
for our security, not our environment.
The presumed distinction between strong security measures
and environmental protection is simply false. Our dependency on
oil is a national security issue; while many of the ways to
reduce that dependency would make us safer and would also
benefit the environment. Similarly, requiring facilities to
adopt IST where possible makes sense for security,
productivity, profitability, and the environment.
Hundreds of facilities have already adopted some form of
IST. The citizens living near these facilities are now safer.
We should ensure that the highest risk facilities in the nation
make such changes where it is practical to do so. We don't have
the resources to protect every chemical facility that is a
potential target. So we need to eliminate as many potential
targets as possible. Adopting safer technologies will allow us
to focus on those facilities where the risk of attack can't be
eliminated.
At the mark-up of S. 2145, Senator Lieberman and I offered
an IST amendment. Unfortunately, that amendment was defeated. I
have joined Senator Lieberman's additional views, which contain
additional discussion of the IST issue, and our amendment in
particular. I appreciate Senator Lieberman's leadership and
commitment to this important aspect of a meaningful chemical
security policy, and I will continue to work with him to
improve any chemical security legislation by ensuring that IST
provisions are included.
A role for workers in ensuring chemical security
My legislation contains several provisions that give
workers at chemical facilities a role in developing
vulnerability assessments, site security and response plans,
participating in inspections, and ensuring the security and
safety of their facilities generally.
It is just common sense that workers at chemical plants
should help develop assessments and plans, participate in
inspections, and consult regularly with management. Workers
have hands-on experience and up-close insights on how to
improve safety and security where they work. They have the most
to lose--their jobs and possibly their lives--if security falls
short.
We will have a weaker national chemical security policy if
we don't involve those who are working in the plants that are
at risk of attack. There is no good argument against including
workers in the development of chemical plant security plans,
and I hope that provisions to that effect will be included in
whatever legislation is ultimately adopted.
General duty to protect the public from terrorist or other criminal
attacks
Under Section 112(r) of the Clean Air Act, chemical
facilities have a ``general duty'' to operate in a manner to
protect public health and safety and the environment from
chemical releases. Facilities are required to develop Risk
Management Plans (RMPs) which include detailed safety and
emergency response plans in the event of an accidental chemical
release. The legislation I introduced in 1999, as well as the
legislation I introduced this year with Senators Obama,
Menendez, and others would amend the current ``general duty''
provision in the Clean Air Act to include a responsibility to
protectworkers and the surrounding public from the threat posed
by a terrorist or other criminal attack on these high-risk facilities.
The facilities covered under Section 112(r) are the highest
risk facilities in the country because they store a sufficient
amount of dangerous chemicals to be a significant threat to the
surrounding community if they are not operated in a safe
manner. It is hard to understand why we would want these
facilities to have a general duty to protect the public from an
accidental chemical release, but not a release that could
result from a terrorist or other criminal attacks.
I recognize that in implementing whatever chemical security
legislation is ultimately enacted, DHS and its partners at the
federal, state, and local levels will need to prioritize their
focus on those facilities that pose the greatest risk. S. 2486
and S. 2145 both contain provisions to allow for such
prioritization. DHS and others have advocated for legislation
with a scope narrower than the facilities currently covered
under section 112(r). I continue to believe that a general duty
to operate in a manner that ensures the security and safety of
workers and surrounding communities is appropriate for all of
the facilities that are currently required to have Risk
Management Plans.
Role of the environmental protection agency
My legislation would ensure that, in establishing
requirements for chemical facilities, and otherwise
implementing a chemical security program, the Secretary of DHS
consults with the Administrator of the Environmental Protection
Agency (EPA).
EPA has an enormous amount of institutional knowledge
concerning chemical plants that can benefit DHS as it takes the
lead role in implementing a national chemical security program.
EPA has administered the nation's chemical safety program
pursuant to the Clean Air Act since 1990.
Chemical security legislation adopted by Congress should
require DHS to consult with EPA, to ensure that DHS has the
best possible information and analysis at its disposal in
implementing our national chemical security policy. One of the
lessons of Hurricane Katrina is that we don't want information
to be ``stove-piped'' at different agencies. We need to ensure
collaboration and cooperation across many departments and
agencies to get the best results. That principle seems
particularly important when the issue is preventing a terrorist
attack on a chemical facility.
I was very disturbed to hear that when the Government
Accountability Office (GAO) recently recommended that DHS
collaborate with EPA on studying the potential benefits of IST
for improving chemical security, DHS rejected GAO's
recommendation, in part out of concern that doing so would
upset the chemical industry. That should not be the basis for
developing any part of our national security policy. I
recognize that the chemical industry would like to exclude EPA
from any role in our chemical security policy, but we should
not cater to the industry on this point.
As chemical security legislation continues to be debated by
the Congress, Members should ask themselves: If EPA's knowledge
of chemical facilities is irrelevant to security concerns, why
have we ceded responsibility for security at our wastewater and
drinking water treatment facilities to EPA?
Under S. 2486 and S. 2145, the Secretary of DHS will be in
charge of our chemical security policy, but we should ensure
that the Secretary and all other DHS personnel take advantage
of the valuable institutional experience and knowledge residing
at EPA.
Anti-preemption
Perhaps the most important issue for New Jersey with regard
to federal chemical security legislation is whether our State
will retain the authority to adopt more stringent protections
than whatever Congress may enact. Some 700 people from New
Jersey were killed on 9/11. New Jersey is one of the states
most vulnerable to a terrorist attack: It is home to what
counter-terrorism experts at the Federal Bureau of
Investigation have called ``the most dangerous two miles in
America,'' the stretch between Newark Airport and Port
Elizabeth, in great part due to the presence of chemical
facilities. Elsewhere in the State, twelve million people could
be endangered if the Kuehne chemical plant in Kearny were to be
attacked.
New Jersey has a long and proud history of adopting strong
legislation to protect the health and safety of its citizens,
and the environment, without waiting for the Federal Government
to act. In the wake of the catastrophic chemical leak in
Bhopal, India, in 1984, which killed thousands of innocent
people, the New Jersey legislature passed the Toxic Catastrophe
Prevention Act (TCPA). This law requires facilities that handle
extraordinarily hazardous substances above certain inventory
thresholds to prepare and implement risk management plans. The
plans must include detailed procedures for safety reviews of
design and operation, operating procedures, maintenance
procedures, training activities, emergency response, process
hazard analysis with risk assessment, and self-auditing
procedures. The TCPA became the model for Section 112(r) of the
Clean Air Act, which established a similar requirement to
develop risk management plans for the highest risk chemical
facilities in the country, of which there are approximately
15,000.
Since 9/11, New Jersey has taken several steps to
strengthen the TCPA, and to adopt additional measures to
enhance the security of New Jersey citizens from terrorist or
other criminal attacks on chemical plants. I find it
unbelievable that five years after 9/11, with no meaningful
action by Congress, the administration, or the chemical
industry to adopt strong chemical security legislation; there
is now a push to prevent states and local communities from
taking the necessary steps to protect their citizens. The
safety of the citizens of New Jersey or any other state or
local community which wishes to protect itself should not be
subject to the delaying tactics of industries that seek to
avoid regulation and oversight. Nor should state or local
governments be forced to settle for whatever compromises are
ultimately reached at the federal level if, in their view,
greater protections are needed for their citizens.
An amendment was offered at the Homeland Security and
Government Affairs Committee mark-up of S. 2145 to preempt
states and local communities from adopting stronger chemical
legislation. Fortunately, the amendment was defeated. I thank
those Senators who voted against that amendment, and
particularly want to express my appreciation to the Chair and
Ranking Member for their steadfast opposition to adding
preemption language to any chemical security legislation.
Although I believe that my legislation is superior to S.
2145, I voted to report S. 2145 to the floor because I think it
is imperative that we make progress in this critical area of
our nation's security. S. 2145--as long as it retains explicit
anti-preemption language--would be an improvement over the
status quo. I appreciate the tremendous amount of work the
Chair and Ranking Member and their staff put into developing
this legislation, and I look forward to the opportunity to work
with them to make a good bill better when the full Senate
considers it.
Frank R. Lautenberg.