[House Report 110-550]
[From the U.S. Government Publishing Office]
110th Congress Rept. 110-550
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2008
_______
March 14, 2008.--Ordered to be printed
_______
Mr. Thompson of Mississippi, from the Committee on Homeland Security,
submitted the following
R E P O R T
together with
MINORITY, ADDITIONAL, AND DISSENTING VIEWS
[To accompany H.R. 5577]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security, to whom was referred
the bill (H.R. 5577) to amend the Homeland Security Act of 2002
to extend, modify, and recodify the authority of the Secretary
of Homeland Security to enhance security and protect against
acts of terrorism against chemical facilities, and for other
purposes, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................2
Background and Need for Legislation.............................2
Hearings........................................................2
Committee Consideration.........................................3
Committee Votes.................................................6
Committee Oversight Findings...................................10
New Budget Authority, Entitlement Authority, and Tax Expenditur10
Congressional Budget Office Estimate...........................10
Statement of General Performance Goals and Objectives..........14
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits.......................................................15
Federal Mandates Statement.....................................16
Advisory Committee Statement...................................16
Constitutional Authority Statement.............................16
Applicability to Legislative Branch............................16
Section-by-Section Analysis of the Legislation.................16
Changes in Existing Law Made by the Bill, as Reported..........29
Minority, Additional, and Dissenting Views.....................60
Purpose and Summary
The purpose of H.R. 5577 is to amend the Homeland Security
Act of 2002 to extend, modify, and recodify the authority of
the Secretary of Homeland Security to enhance security and
protect against acts of terrorism against chemical facilities,
and for other purposes.
Background and Need for Legislation
In 1984, a chemical facility in Bhopal, India accidentally
released 40 tons of methyl isocyanate. The initial exposure
killed approximately 3,000 people, and at least 15,000 more
have died from illnesses related to the accident. The tragic
event in Bhopal was an accident; the consequences of a
deliberate terrorist attack could be much worse.
Chemical facilities are an integral part of the United
States economy, generating $550 billion in annual revenues.
These facilities, often located in densely populated areas,
hold many chemicals that can cause serious harm to humans and
the environment if used maliciously or without sufficient care.
Storage and use of potentially dangerous or hazardous chemicals
near large populations centers, as well as their economic
importance, make U.S. chemical facilities attractive terrorist
targets. As a result, the Chemical Sector is among the 17
critical infrastructure and key resources (CI/KR) sectors under
the National Infrastructure Protection Plan, pursuant to
Homeland Security Presidential Directive-7 (HSPD-7).
Section 550 of the Homeland Security Appropriations Act of
2007 (P.L. 109-295) authorizes the Department of Homeland
Security (Department) to regulate the Nation's chemical
facilities. Pursuant to that mandate, the Department issued the
Chemical Facility Anti-Terrorism Standards (CFATS) in June
2007. These standards require chemical facilities to report the
amounts and types of chemicals on site so that the Department
can determine whether a facility will be further regulated by
CFATS rules. The Secretary will place regulated facilities into
one of four tiers, based on risk and performance. The
facilities placed in the highest-risk tier will be subject to
the most stringent security required. The CFATS regulations,
which have only recently begun to be implemented, will sunset
in October 2009.
Because the continued regulation of our Nation's chemical
facilities is essential for the protection of our citizens
against terrorist attacks, this legislation is needed to
continue the implementation of CFATS regulations. H.R. 5577
requires each CFATS-regulated chemical facility to conduct a
security vulnerability assessment and subsequently implement a
site security plan, as well as empowering the Department to
inspect these facilities and ensure compliance. The Committee
intends for H.R. 5577 to extend and make permanent the CFATS
regime with some modifications. The current CFATS regulations
will be improved, not disrupted, by this legislation.
Hearings
On December 12, 2007, the Subcommittee on Transportation
Security and Infrastructure Protection held a hearing on H.R.
5577, the ``Chemical Facility Anti-Terrorism Act of 2008.'' The
Subcommittee received testimony from Col. Robert B. Stephan,
Assistant Secretary, Infrastructure Protection, U.S. Department
of Homeland Security; Mr. Clyde Miller, Director, Corporate
Security, BASF Corporation; Mr. Gerald C. Setley, Vice
President, Region 3 Director, International Chemical Workers
Union Council, United Food and Commercial Workers Union; Mr.
Gary Sondermeyer, Director of Operations, New Jersey Department
of Environmental Protection; and Dr. M. Sam Mannan, PE, CSP,
Professor and Director, Mary Kay O'Connor Process Safety
Center, Artie McFerrin, Department of Chemical Engineering,
Texas A&M University System.
On February 26, 2008, the Full Committee held a hearing on
a Committee Print entitled ``Chemical Facility Anti-Terrorism
Act of 2008.'' The Committee received testimony from Col.
Robert B. Stephan, Assistant Secretary, Department of Homeland
Security; David C. Pulham, Ph.D., Director of Compliance,
Siegfried (USA), Inc.; and Mr. Kevin Wattier, General Manager,
Long Beach Water Department.
Committee Consideration
SUBCOMMITTEE ON TRANSPORTATION SECURITY AND INFRASTRUCTURE PROTECTION
CONSIDERATION
The Subcommittee on Transportation Security and
Infrastructure Protection of the Committee on Homeland Security
met, pursuant to notice, in open markup session, a quorum being
present, on Wednesday, January 23, 2008, and ordered a
Committee Print entitled ``To amend the Homeland Security Act
of 2002 to extend, modify, and recodify the authority of the
Secretary of Homeland Security to enhance security and protect
against acts of terrorism against chemical facilities, and for
other purposes.'' to be forwarded to the Full Committee for
consideration, as amended, by unanimous consent.
The Subcommittee adopted the bill, as amended, by voice
vote.
The following amendments were offered:
An amendment offered by Ms. Jackson-Lee (#1), to
strike the proposed section 2114 insert a new section
2114 entitled ``Sec. 2114. Office of Chemical Facility
Security.'' and to insert after section 2102 (d) a new
section entitled ``(e) Dissemination of Best
Practices.''; was AGREED TO by voice vote.
An amendment offered by Ms. Brown-Waite (#2), to
insert a new section after section 2115 entitled ``Sec.
2116. Terrorist Watchlist and Immigration Status Review
Required for Certain Employees of High-Risk Chemical
Facilities.''; was NOT AGREED TO by a record vote of 4
yeas and 5 nays (Roll Call Vote No. 3).
FULL COMMITTEE CONSIDERATION
The Committee on Homeland Security met on March 6, 2008, to
consider a Committee print entitled ``Chemical Facility Anti-
Terrorism Act of 2008.''
The Committee took the following actions:
A Committee Print, entitled ``To amend the Homeland
Security Act of 2002 to extend, modify, and recodify the
authority of the Secretary of Homeland Security to enhance
security and protect against acts of terrorism against chemical
facilities, and for other purposes.'' The ``Chemical Facility
Anti-Terrorism Act of 2008.''; was AGREED TO, as amended, by
record vote of 15 yeas and 7 nays (Roll Call Vote No. 16).
Unanimous consent request by Mr. Thompson that, upon
referral of this bill to the Committee on Homeland Security,
upon introduction, the bill be deemed reported to the House;
was not objected to.
A motion by Mr. Broun to postpone consideration of the
Committee Print until the House of Representatives has
considered S. 2248 was TABLED.
A motion by Mr. Dicks to table the motion by Mr. Broun to
postpone the consideration of the Committee Print until the
House of Representatives has considered S. 2248 was AGREED TO
by a record vote of 15 yeas and 11 nays (Roll Call Vote No.
12).
The Committee then proceeded to the consideration of the
Committee Print.
The following amendments were offered:
An En Bloc Amendment offered by Mr Thompson (#1); to (1)
strike subsection (g) of the proposed section 2103 and insert a
new subsection entitled ``Role of Employees''; (2) on page 37,
line 1, strike ``The Secretary'' and all that follows through
the period on line 6 and insert the following:
``Notwithstanding the preceding sentence, the Secretary may not
issue an order to cease operations under this paragraph to the
owner or operator a drinking water or wastewater facility
unless the Secretary determined that continued operation of the
facility represents a clear and present danger to homeland
security.''; (3) in the proposed section 2110(b)(1)(C), insert
before the period at the end of the following: ``at a location
within the United States''; (4) at the end of the proposed
section 2110, insert a new subsection entitled ``(g) Publicly-
owned Water and Wastewater Treatment Facilities.''; and (5) in
Sec. 2115, at the end of Subsec (a): In establishing this or
any chemical, biological, and/or agricultural Centers of
Excellence, or in reorganizing existing Centers in these areas,
the Secretary shall recognize the unique scientific, technical,
and funding requirements of the chemical, biological and/or
agricultural fields to the mission of the Department of
Homeland Security, and maintain such centers as distinct
entities in organization and funding.; was AGREED TO by voice
vote.
An Amendment offered by Mr. Lungren (#2), on p. 54, line
18, after ``covered chemical facility'' insert ``assigned to a
high-risk tier under section 2102(C)(3)''.; was NOT AGREED TO
by a record vote of 11 yeas and 16 nays (Roll Call Vote No.
13).
An Amendment offered Mr. Perlmutter (#3), to strike the
proposed section 2114 and insert the following new section 2114
entitled ``Sec. 2114. Security Background Checks of Covered
Individuals at Certain Chemical Facilities.''; was AGREED TO by
voice vote.
An Amendment offered by Mr. Souder (#4), on page 10, line
14, before the semicolon insert the following: ``relating to
security of the facility.''; and page 10, line 18, insert
``security'' before ``performance''.; was AGREED TO by voice
vote.
An Amendment offered by Mr. Souder (#5), on page 20, line
1, insert after ``include'' the following: ``, to the extent
feasible,''.; was NOT AGREED TO by voice vote.
An Amendment offered Mr. Souder (#6), Page 56, line 8,
strike ``and''.; page 56, line 12, strike the period and insert
the following: ``; and''.; pager 56, after line 12, insert a
new subsection (D); was NOT AGREED TO by a record vote of 8
yeas and 13 nays (Roll Call Vote No. 14).
An Amendment offered by Mr. Souder (#7), Page 57, after
line 6, insert a new subsection ``(3) Exception.''; was NOT
AGREED TO by a record vote of 8 yeas and 13 nays (Roll Call
Vote No. 15).
An amendment offered by Mr. Broun (#8) (#3A), in the
proposed section 2114, redesignate subsections (c) through (h)
as subsections (d) through (I), respectively.; Page 4, after
line 3, insert a new subsection ``(c) Termination of
Employment,''; page 2, line 8, strike ``(c)'' and insert
``(d)''.; page 2, line 21, strike ``subsection (c)'' and insert
``subsection (d)''; was WITHDRAWN by unanimous consent.
A unanimous consent request by Mr. Broun to withdraw his
amendment, was not objected to.
A motion by Mr. Thompson that staff is authorized to make
any technical and conforming changes to the measures considered
today, was not objected to.
A motion by Ms. Sanchez to authorize the Chairman to offer
such motions as may be necessary in the House to go to
Conference with the Senate on the bills just ordered reported
by this Committee, or on a similar Senate bill, was not
objected to.
A motion by Mr. King that pursuant to Rule XIII clause 2(c)
of the Rules of the House of Representatives Members may have
two days in which to file Minority and additional views on each
of the measures considered, was not objected to.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto.
FULL COMMITTEE VOTES
Committee on Homeland Security
Date: Thursday, March 6, 2008
Vote on: A motion by Mr. Dicks to table the motion by Mr.
Broun to postpone the consideration of the Committee Print
until the House of Representatives has considered S. 2248. Was
AGREED to by a record vote of 15 yeas and 11 nays (Roll Call
Vote No. 12.) As follows:
Recorded Vote Number: 12
Total: Yeas 15 Nays 11
----------------------------------------------------------------------------------------------------------------
YEA NAY PRESENT YEA NAY PRESENT
----------------------------------------------------------------------------------------------------------------
Mr. Bennie G. Thompson ....... ........... Mr. Peter T. King ......
----------------------------------------------------------------------------------------------------------------
Ms. Loretta Sanchez ....... ........... Mr. Lamar Smith ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey ....... ....... ........... Mr. Christopher ...... ...... ..........
Shays.
----------------------------------------------------------------------------------------------------------------
Mr. Norman D. Dicks ....... ........... Mr. Mark E. Souder. ......
----------------------------------------------------------------------------------------------------------------
Ms. Jane Harman ....... ........... Mr. Tom Davis...... ......
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio ....... ........... Mr. Daniel E. ......
----------------------------------------------------------------------------------------------------------------
Mrs. Nita M. Lowey ....... ....... ........... Mr. Mike Rogers.... ......
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton ....... ....... ........... Mr. David G. ......
----------------------------------------------------------------------------------------------------------------
Ms. Zoe Lofgren ....... ....... ........... Mr. Michael T. ......
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee ....... ........... Mr. Charles W. Dent ......
----------------------------------------------------------------------------------------------------------------
Mrs. Donna M. Christensen ....... ........... Mr. Ginny Brown- ...... ...... ..........
Waite.
----------------------------------------------------------------------------------------------------------------
Mr. Bob Etheridge ....... ........... Ms. Gus M. ......
----------------------------------------------------------------------------------------------------------------
Mr. James R. Langevin ....... ........... Mr. David Davis.... ......
----------------------------------------------------------------------------------------------------------------
Mr. Henry Cuellar ....... ........... Mr. Paul C. Broun.. ......
----------------------------------------------------------------------------------------------------------------
Mr. Christopher P. Carney ....... ........... Vacancy............ ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke ....... ........... ................... ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Al Green ....... ........... ................... ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter ....... ........... ................... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Bill Pascrell, Jr. ....... ........... Total........ 15 11 ..........
----------------------------------------------------------------------------------------------------------------
Committee on Homeland Security
Date: Thursday, March 6, 2008
Vote on: An Amendment offered Mr. Lungren (#2), on p. 54, line
18, after ``covered chemical facility'' insert ``assigned to a
high-risk tier under section 2102(C)(3)''. Was NOT AGREED to by
a record vote of 11 yeas and 16 nays (Roll Call Vote No. 13.)
As follows:
Recorded Vote Number: 13
Total: Yeas 11 Nays 16
----------------------------------------------------------------------------------------------------------------
YEA NAY PRESENT YEA NAY PRESENT
----------------------------------------------------------------------------------------------------------------
Mr. Bennie G. Thompson ....... ........... Mr. Peter T. King..
----------------------------------------------------------------------------------------------------------------
Ms. Loretta Sanchez ....... ........... Mr. Lamar Smith....
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey ....... ........... Mr. Christopher ...... ...... ..........
Shays.
----------------------------------------------------------------------------------------------------------------
Mr. Norman D. Dicks ....... ........... Mr. Mark E. Souder.
----------------------------------------------------------------------------------------------------------------
Ms. Jane Harman ....... ........... Mr. Tom Davis......
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio ....... ........... Mr. Daniel E.
----------------------------------------------------------------------------------------------------------------
Mrs. Nita M. Lowey ....... ....... ........... Mr. Mike Rogers.... ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton ....... ....... ........... Mr. David G.
----------------------------------------------------------------------------------------------------------------
Ms. Zoe Lofgren ....... ....... ........... Mr. Michael T.
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee ....... ........... Mr. Charles W. Dent
----------------------------------------------------------------------------------------------------------------
Mrs. Donna M. Christensen ....... ........... Mr. Ginny Brown- ...... ...... ..........
Waite.
----------------------------------------------------------------------------------------------------------------
Mr. Bob Etheridge ....... ........... Ms. Gus M.
----------------------------------------------------------------------------------------------------------------
Mr. James R. Langevin ....... ........... Mr. David Davis....
----------------------------------------------------------------------------------------------------------------
Mr. Henry Cuellar ....... ........... Mr. Paul C. Broun..
----------------------------------------------------------------------------------------------------------------
Mr. Christopher P. Carney ....... ........... Vacancy............ ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke ....... ........... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Al Green ....... ........... ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter ....... ........... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Bill Pascrell, Jr. ....... ........... Total 11 16 ..........
----------------------------------------------------------------------------------------------------------------
Committee on Homeland Security
Date: Thursday, March 6, 2008
Vote on: An Amendment offered Mr. Souder (#6), Page 56, line
8, strike ``and''.; page 56, line 12, strike the period and
insert the following: ``; and''.; page 56, after line 12,
insert a new subsection (D). Was NOT AGREED to by a record vote
of 8 yeas and 13 nays (Roll Call Vote No. 14.) As follows:
Recorded Vote Number: 14
Total: Yeas 8 Nays 13
----------------------------------------------------------------------------------------------------------------
YEA NAY PRESENT YEA NAY PRESENT
----------------------------------------------------------------------------------------------------------------
Mr. Bennie G. Thompson ....... ........... Mr. Peter T. King
----------------------------------------------------------------------------------------------------------------
Ms. Loretta Sanchez ....... ........... Mr. Lamar Smith ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey ....... ........... Mr. Christopher ...... ...... ..........
Shays
----------------------------------------------------------------------------------------------------------------
Mr. Norman D. Dicks ....... ....... ........... Mr. Mark E. Souder
----------------------------------------------------------------------------------------------------------------
Ms. Jane Harman ....... ....... ........... Mr. Tom Davis ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio ....... ........... Mr. Daniel E. ...... ...... ..........
Lungren
----------------------------------------------------------------------------------------------------------------
Mrs. Nita M. Lowey ....... ....... ........... Mr. Mike Rogers ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton ....... ....... ........... Mr. David G.
----------------------------------------------------------------------------------------------------------------
Ms. Zoe Lofgren ....... ....... ........... Mr. Michael T.
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee ....... ........... Mr. Charles W. Dent
----------------------------------------------------------------------------------------------------------------
Mrs. Donna M. Christensen ....... ........... Mr. Ginny Brown- ...... ...... ..........
Waite
----------------------------------------------------------------------------------------------------------------
Mr. Bob Etheridge ....... DMs. Gus M. ............ ...... ......
Bilirakis
----------------------------------------------------------------------------------------------------------------
Mr. James R. Langevin ....... ....... ........... Mr. David Davis
----------------------------------------------------------------------------------------------------------------
Mr. Henry Cuellar ....... ........... Mr. Paul C. Broun
----------------------------------------------------------------------------------------------------------------
Mr. Christopher P. Carney ....... ........... Vacancy ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke ....... ........... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Al Green ....... ........... ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter ....... ........... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Bill Pascrell, Jr. ....... ........... Total 8 13 ..........
----------------------------------------------------------------------------------------------------------------
Committee on Homeland Security
Date: Thursday, March 6, 2008
Vote on: An Amendment offered Mr. Souder (#7), Page 57, after
line 6, insert a new subsection ``(3) Exception.''. Was NOT
AGREED to by a record vote of 8 yeas and 13 nays (Roll Call
Vote No. 15.) As follows:
Recorded Vote Number: 15
Total: Yeas 8 Nays 13
----------------------------------------------------------------------------------------------------------------
YEA NAY PRESENT YEA NAY PRESENT
----------------------------------------------------------------------------------------------------------------
Mr. Bennie G. Thompson ....... ........... Mr. Peter T. King
----------------------------------------------------------------------------------------------------------------
Ms. Loretta Sanchez ....... ........... Mr. Lamar Smith ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey ....... ........... Mr. Christopher ...... ...... ..........
Shays
----------------------------------------------------------------------------------------------------------------
Mr. Norman D. Dicks ....... ....... ........... Mr. Mark E. Souder
----------------------------------------------------------------------------------------------------------------
Ms. Jane Harman ....... ....... ........... Mr. Tom Davis ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio ....... ........... Mr. Daniel E. ...... ...... ..........
Lungren
----------------------------------------------------------------------------------------------------------------
Mrs. Nita M. Lowey ....... ....... ........... Mr. Mike Rogers ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton ....... ....... ........... Mr. David G.
----------------------------------------------------------------------------------------------------------------
Ms. Zoe Lofgren ....... ....... ........... Mr. Michael T.
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee ....... ........... Mr. Charles W. Dent
----------------------------------------------------------------------------------------------------------------
Mrs. Donna M. Christensen ....... ........... Mr. Ginny Brown- ...... ...... ..........
Waite
----------------------------------------------------------------------------------------------------------------
Mr. Bob Etheridge ....... ........... Ms. Gus M.
----------------------------------------------------------------------------------------------------------------
Mr. James R. Langevin ....... ....... ........... Mr. David Davis
----------------------------------------------------------------------------------------------------------------
Mr. Henry Cuellar ....... ........... Mr. Paul C. Broun
----------------------------------------------------------------------------------------------------------------
Mr. Christopher P. Carney ....... ........... Vacancy ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke ....... ........... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Al Green ....... ........... ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter ....... ........... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Bill Pascrell, Jr. ....... Total 8 13 ..........
----------------------------------------------------------------------------------------------------------------
Committee on Homeland Security
Date: Thursday, March 6, 2008
Vote on: Agreeing to the Committee Print, as amended. Was
AGREED to by a record vote of 15 yeas and 7 nays (Roll Call
Vote No. 16.) As follows:
Recorded Vote Number: 16
Total: Yeas 15 Nays 7
----------------------------------------------------------------------------------------------------------------
YEA NAY PRESENT YEA NAY PRESENT
----------------------------------------------------------------------------------------------------------------
Mr. Bennie G. Thompson >
----------------------------------------------------------------------------------------------------------------
Ms. Loretta Sanchez
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey . ...... ..........
> Shays
----------------------------------------------------------------------------------------------------------------
Mr. Norman D. Dicks ...... ...... .......... Mr. Mark E. Souder ........
----------------------------------------------------------------------------------------------------------------
Ms. Jane Harman ...... ...... .......... Mr. Tom Davis ........ ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio Lungren
----------------------------------------------------------------------------------------------------------------
Mrs. Nita M. Lowey ...... ...... .......... Mr. Mike Rogers ........ ...... ..........
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton ...... ...... .......... Mr. David G. ........
----------------------------------------------------------------------------------------------------------------
Ms. Zoe Lofgren ...... ...... .......... Mr. Michael T. ........
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee . ...... ..........
>
----------------------------------------------------------------------------------------------------------------
Mrs. Donna M. Christensen Waite
----------------------------------------------------------------------------------------------------------------
Mr. Bob Etheridge >
----------------------------------------------------------------------------------------------------------------
Mr. James R. Langevin ...... ...... .......... Mr. David Davis ........
----------------------------------------------------------------------------------------------------------------
Mr. Henry Cuellar >
----------------------------------------------------------------------------------------------------------------
Mr. Christopher P. Carney
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke
----------------------------------------------------------------------------------------------------------------
Mr. Al Green
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter
----------------------------------------------------------------------------------------------------------------
Mr. Bill Pascrell, Jr.
----------------------------------------------------------------------------------------------------------------
subcommittee on transportation and infrastructure votes
Subcommittee on Transportation Security and Infrastructure
Protection
Date: Wednesday, January 23, 2008
Vote on: An amendment offered by Ms. Brown-Waite (#2), to
insert a new section after section 2115 entitled ``Sec. 2116.
Terrorist Watchlist and Immigration Status Review Required for
Certain Employees of High-Risk Chemical Facilities.'' Was NOT
AGREED to by a record vote of 4 yeas and 5 nays (Roll Call Vote
No. 3.) As follows:
Recorded Vote Number: 3
Total: Yeas 4 Nays 5
----------------------------------------------------------------------------------------------------------------
YEA NAY PRESENT YEA NAY PRESENT
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee ....... ........... Mr. Daniel E.
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey ....... ........... Ms. Ginny Brown-
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio ....... ....... ........... Mr. Gus Bilirakis
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton ....... ........... Mr. Paul C. Broun
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke ....... ........... ...... ...... ..........
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter ....... ........... Total 4 5 ..........
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee has held oversight
hearings and made findings that are reflected in this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the
Rules of the House of Representatives, the Committee finds that
H.R. 5577, the Chemical Facility Anti-Terrorism Act of 2008,
would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Congressional Budget Office Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
H.R. 5577--Chemical Facility Anti-Terrorism Act of 2008
Summary: H.R. 5577 would authorize the appropriation of
$900 million over the 2010-2012 period for the Department of
Homeland Security (DHS) to regulate the security of chemical
facilities across the United States (that is, facilities where
certain types of chemicals are used, stored, manufactured,
processed, or distributed). The bill would establish a chemical
security office within DHS to carry out the provisions of this
legislation, including conducting audits and inspections of the
nation's chemical facilities. In addition, CBO estimates that
DHS would need funding of $283 million for fiscal year 2013 to
continue to carry out those activities.
Assuming appropriation of the necessary amounts, we
estimate that implementing H.R. 5577 would cost about $1.1
billion over the 2010-2013 period. In addition, enacting the
bill could affect direct spending and receipts, but we estimate
that any such effects would not be significant.
H.R. 5577 would impose several intergovernmental mandates,
as defined in the Unfunded Mandates Reform Act (UMRA),
including new requirements on publicly owned chemical
facilities as well as preemptions of state and local laws.
Based on information from DHS and representatives of publicly
owned facilities, CBO estimates that additional costs for those
facilities would not be significant. CBO further estimates that
the cost of the other intergovernmental mandates (mostly
preemptions) in the bill would be small, and therefore, that
the total costs to state, local, and tribal governments would
not exceed the annual threshold established in UMRA ($68
million for intergovernmental mandates in 2008, adjusted
annually for inflation).
H.R. 5577 also would extend and impose new private-sector
mandates, as defined in UMRA, on owners and operators of
certain types of chemical facilities. Based on information from
industry sources and DHS, CBO expects that the aggregate direct
cost of complying with those mandates would likely exceed the
annual threshold established in UMRA for private-sector
mandates ($136 million in 2008, 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 H.R. 5577 is shown in the following table.
The costs of this legislation fall within budget function 750
(administration of justice).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------
2008 2009 2010 2011 2012 2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION \a\
Estimated Authorization Level \b\ 0 0 325 300 275 283
Estimated Outlays............................................... 0 0 260 305 280 282
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
\a\ In addition to the amounts shown above, enacting H.R. 5577 could affect revenues and direct spending, but
CBO estimates that any such effects would not be significant in any year.
\b\ The authorization levels for 2010 through 2012 are specified by H.R. 5577; CBO estimated the 2013 level.
Basis of estimate: CBO estimates that implementing H.R.
5577 would cost about $1.1 billion over the 2010-2013 period,
assuming appropriation of the necessary funds. Enacting the
bill could affect direct spending and revenues, but we estimate
that any effects would be insignificant.
Spending Subject to Appropriation
FOR THIS ESTIMATE, CBO ASSUMES THAT THE NECESSARY AMOUNTS WILL BE
APPROPRIATED FOR EACH FISCAL YEAR AND THAT SPENDING WILL FOLLOW THE
HISTORICAL SPENDING PATTERNS FOR THOSE OR SIMILAR ACTIVITIES.
H.R. 5577 would authorize the appropriation of $900 million
over the 2010-2012 period for DHS to regulate the security of
chemical facilities in the United States. In addition, CBO
estimates that implementing the bill would require funding of
$283 million in 2013 for DHS to continue to carry out the
bill's activities. We estimated the 2013 level by adjusting the
2012 level for anticipated inflation.
Direct Spending and Revenues
Enacting H.R. 5577 could affect direct spending and
receipts because the bill would establish new civil and
criminal penalties against owners and operators of chemical
facilities and officers or employees of federal, state, or
local government agencies who fail to comply with the bill's
requirements. Civil fines are recorded as revenues and
deposited in the Treasury. Criminal fines are recorded as
revenues, then deposited in the Crime Victims Fund, and later
spent. CBO expects that any additional revenues and direct
spending would not be significant because of the small number
of cases affected.
Estimated impact on state, local, and tribal governments:
H.R. 5577 would impose intergovernmental mandates, as
defined in UMRA, on owners and operators of chemical
facilities, including public entities. The bill also would
preempt state, local, and tribal authority. Because some of the
requirements on chemical facilities would depend on future
actions of DHS, CBO cannot determine their exact costs.
However, based on information from DHS and representatives of
public entities, CBO estimates that additional costs for public
facilities would not be significant. CBO further estimates that
the cost of the other intergovernmental mandates in the bill
would be small. Therefore, the total costs to state, local, and
tribal governments would not exceed the annual threshold
established in UMRA ($68 million for intergovernmental mandates
in 2008, adjusted annually for inflation).
Requirement for Vulnerability Assessments and Security Plans
H.R. 5577 would require owners and operators of affected
facilities to conduct an assessment of the vulnerability of
their facilities, 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. H.R. 5577 would
further require owners and operators to maintain records at the
facility, provide access for DHS officials, require background
checks on employees with access to restricted areas, and
provide training to employees. Those facilities would be
prohibited from firing or otherwise discriminating against an
employee who provides information to DHS regarding
vulnerabilities at a chemical facility.
Similar activities are required under current law, but
those requirements expire in 2009; however, some public
entities, such as drinking water and wastewater treatment
facilities, are exempt from those regulations. This bill would
require such facilities to comply with the requirements. The
bill also would extend existing mandates on certain public
entities that are not exempt from the current regulations and
impose new intergovernmental mandates on entities that are
considered to be high risk.
According to government and industry representatives, many
of the public facilities potentially affected by the bill's
provisions are currently engaged in activities similar to those
that would be required under H.R. 5577. 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. Based on information from DHS, CBO expects DHS to
assign most public water facilities to the lowest tier of risk
and to 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 those mandates would impose few additional costs on those
facilities.
Other Intergovernmental Mandates
The bill also contains two preemptions of state and local
authority. It would exempt certain security plans and documents
from state and local laws that provide public access to
information and preempt any state or local regulation that
would conflict with the security activities authorized by this
bill. CBO estimates that costs, if any, of those preemptions
would be small.
Estimated impact on the private sector: H.R. 5577 would
extend and impose new private-sector mandates, as defined in
UMRA, on owners and operators of certain types of chemical
facilities. Based on information from industry sources and DHS,
CBO expects that the aggregate direct cost of complying with
those mandates would likely exceed the annual threshold
established in UMRA for private-sector mandates ($136 million
in 2008, adjusted annually for inflation) in at least one of
the first five years the mandates are in effect.
Extension of Mandates on Chemical Facilities
The bill would extend and modify certain regulations known
as the Chemical Facility Anti-Terrorism Standards (CFATS) that
were issued under Public Law 109-295 and are set to expire in
October 2009. H.R. 5577 would extend the requirement that DHS
maintain a list of chemical facilities based on criteria in the
bill, assign each such facility to one of at least four risk-
based tiers, and develop security standards and procedures for
facilities on the list.
Based on regulations developed by DHS, owners and operators
of those chemical facilities would be required to conduct an
assessment of the vulnerability of their facility to a
terrorist incident, and prepare and implement a security plan
that addresses the results of the vulnerability assessment. The
bill also would require the owners and operators of such
facilities to maintain a current copy of the assessment and
plan at their facility and to allow DHS access to their
property for security inspections and verifications. In
addition, owners and operators would be required to
periodically submit a review of the adequacy of the
vulnerability assessment or facility security plan that
includes a description of any changes made to the assessment or
plan. The bill also would extend certain protections for
employees in the event that they submit a report to DHS
regarding problems, deficiencies, or vulnerabilities at a
chemical facility.
According to industry sources and DHS, most facilities are
currently engaged in the assessments and planning that would be
required under this bill as a part of complying with the
current regulations. The cost to chemical facilities of
extending those requirements would depend, in part, on the
number of facilities that will have completed their
vulnerability assessments and security plans before the sunset
of the CFATS regulations. Based on information from DHS and
industry sources on the expected schedule of requirements for
facilities, CBO expects that the incremental cost to the
industry to comply with the extension of the security standards
and procedures outlined in the bill would be substantial and
would likely exceed the annual threshold established in UMRA in
at least one of the first five years those requirements are in
effect.
New Mandates on Chemical Facilities
H.R. 5577 also would impose new mandates, as defined in
UMRA, on owners and operators of chemical facilities covered
under the bill. Those new mandates would not impose substantial
costs on those owners and operators.
Mandates on High-Risk Facilities. The bill would require
owners and operators of high-risk chemical facilities to
conduct a specific assessment of methods to reduce the impacts
of a terrorist attack on the facility. If the Secretary
determines that specific methods are necessary for a facility
to reduce those impacts, the owner or operator of the facility
would be required to implement such methods. The bill also
would require DHS to make funds available to help defray some
of the cost of implementing those methods. Because the
facilities that would be affected and the types of methods to
be required depend on future regulatory actions, CBO cannot
estimate the cost of this mandate.
The bill also would require owners and operators of high-
risk chemical facilities to:
Allow DHS to conduct certain risk management
exercises (called red team exercises) at their facilities;
Submit to DHS an addendum to the facility's
security vulnerability assessment or site security plan to
reflect any additional requirements of this act if they have
already submitted an assessment and plan under current
regulations; and
Conduct security background checks of individuals
who have access to restricted areas or critical assets.
Based on information from DHS and the industry, CBO expects
that the cost of complying with those mandates would not be
substantial compared with the annual threshold.
Training Requirement. Under the bill, the owner or operator
of a chemical facility required to submit a site security plan
would be required to annually provide each employee of the
facility with a minimum of eight hours of training. The
training would include such topics as the identification and
discussion of substances that pose a certain level of risk to
the workforce, emergency response providers, and the community.
According to DHS and industry representatives, all covered
chemical facilities currently provide similar training for
their employees so that the incremental cost to those
facilities should be minimal compared with the annual
threshold.
Estimate prepared by: Federal Costs: Mark Grabowicz; Impact
on State, Local, and Tribal Governments: Melissa Merrell;
Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of
the House of Representatives, H.R. 5577, contains the following
general performance goals, and objectives, including outcome
related goals and objectives authorized.
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, H.R. 5577 contains the following
general performance goals, and objectives, including outcome
related goals and objectives authorized.
The purpose of this legislation is to amend the Homeland
Security Act of 2002 to extend, modify, and renew the authority
of the Secretary of Homeland Security to enhance security and
protect against acts of terrorism against chemical facilities,
and for other purposes, including:
Designation of certain chemical substances as
substances of concern and establishing a threshold
quantity for each substance of concern;
Assignment by the Secretary of each covered chemical
facility to one of four or more risk-based tiers
established by the Secretary and periodic review by the
Secretary of the criteria under which covered chemical
facilities are assigned to risk-based tiers or by which
chemical facilities are designated as covered
facilities;
Establishing security requirements for covered chemical
facilities including security vulnerability assessments
and site security plans;
Exercises conducted by the Secretary at chemical
facilities that have been assigned to a high-risk tier
during the six-year period that begins on the effective
date of the regulations promulgated under this
legislation;
Development, documentation, and updating of minimum
standard operating procedures and requirements by the
Secretary for certain third-party entities;
Submission of an annual report to relevant
Congressional Committees on the award of third-party
entity contracts to small business concerns during the
preceding fiscal year;
Requiring all covered chemical facilities assigned to a
risk-based tier to conduct an assessment of the
feasibility of methods to reduce the consequences of a
terrorist attack, and allowing the Secretary to require
implementation, of such methods, on a case-by-case
basis, for high-risk facilities;
Making funds available to help defray the cost of
implementing methods to reduce the consequences of a
terrorist attack to covered chemical facilities that
are required by the Secretary to implement such methods
or that voluntarily choose to implement such methods;
Requiring adequate processes for redress for a covered
individual subjected to an adverse employment decision,
including removal or suspension, due to compliance with
the provisions and regulations promulgated under
section 2114 of this legislation;
Issuing a regulation that prohibits a covered chemical
facility from knowingly misrepresenting to an employee
or labor arbiter the scope, application, or meaning of
any rules, regulations, directives, or guidance issued
by the Secretary related to security background check
requirements not later than one year after the date of
enactment of this legislation;
Submission of an annual report to Congress by the
Secretary on progress in achieving compliance with
title XXI of the Homeland Security Act of 2002, as
added by section 4 of this legislation, not later than
one year after the date of enactment thereof; and
Submission of a report to Congress by the Inspector
General of the Department of Homeland Security that
reviews the effectiveness of the implementation of
title XXI of the Homeland Security Act of 2002, not
later than October 1, 2010; and other provisions.
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits
In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
Congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of the rule
XXI.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 1, which grants Congress the power
to provide for the common Defense of the United States.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate
to the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short Title.
This section cites the short title of the bill as the
``Chemical Facility Anti-Terrorism Act of 2008.''
Section 2. Findings and Purpose.
This section sets forth Congressional findings and states
the purpose of the bill: to give permanent status to the
Chemical Facility Anti-Terrorism Standards (CFATS) to protect
the Nation's chemical facilities from the significant risk of
being terrorist targets. This section finds that the Secretary
of Homeland Security currently has authority to regulate
chemical facilities under the CFATS regulations issued pursuant
to section 550 of the Department of Homeland Security
Appropriations Act of 2007 (P.L. 109-295). Further, this
section finds that the CFATS regulations are largely consistent
with Congressional intent regarding chemical facility security
but will sunset in October 2009. Finally, this section declares
that the purpose of this measure is to codify the CFATS
regulations and provide further Congressional guidance for
implementation in the future.
Section 3. Sense of Congress.
This section expresses the sense of Congress that the
Secretary of Homeland Security should use, as appropriate, the
rules, regulations, and tools developed for the CFATS
regulations established pursuant to section 550 of P.L. 109-295
to develop and administer all aspects of the new regulations.
Among the tools that should be utilized, as appropriate, are
Appendix A and the ``Top Screen'' tool. This section also notes
that the Secretary should take a holistic approach to secure
hazardous chemicals and utilize existing authority to secure
the supply chain of chemicals.
Section 4. Extension, Modification, and Recodification of the
Authority of the Secretary of Homeland Security to Regulate
Security Practices at Chemical Facilities.
This section amends the Homeland Security Act of 2002 by
adding a new ``Title XXI-Regulation of Security Practices at
Chemical Facilities.''
Section 2101. Definitions.
This section defines terms such as ``chemical facility,''
``chemical facility performance standard,'' ``chemical facility
terrorist incident,'' ``employee representative,'' ``covered
individual,'' ``covered chemical facility,'' ``environment,''
``substance of concern,'' and ``method to reduce the
consequences of a terrorist attack,'' among others.
Section 2102. Risk-Based Designation and Ranking of Chemical
Facilities.
This section requires the Secretary of Homeland Security to
designate a chemical substance as a ``substance of concern''
and determine the regulated ``threshold'' quantities of these
substances. In designating a chemical, the Secretary shall
consider the potential for death, injury, and serious adverse
effects to human health, the environment, critical
infrastructure, National security, the National economy, and
public welfare from a terrorist-related release. The Secretary
may use the Appendix A list utilized under the CFATS
regulations established pursuant P.L. 109-295 to fulfill this
requirement.
This section also requires the Secretary to maintain a list
of ``covered chemical facilities'' that present a certain level
of security risk, based on the potential threat that the
facility will be a target of terrorism; the potential extent of
death, injury, or serious adverse effects to human health, the
environment, critical infrastructure, National security, the
National economy, and public welfare from a terrorist incident;
and the proximity of the facility to population centers. The
Secretary may require additional information to determine
whether a facility qualifies as a covered chemical facility and
may use the ``Top Screen'' process under the current CFATS
regulations to fulfill this requirement.
Under this section, the Secretary is required to assign
each covered chemical facility to one of at least four risk-
based tiers with at least one tier being a high-risk tier. This
section requires the Secretary to review the list periodically
and update it as appropriate. The Secretary is required to
notify the facilities of their designation or any modification
of their designation within 60 days of the determination.
Section 2103. Security Vulnerability Assessments and Site Security
Plans.
This section requires the Secretary of Homeland Security to
establish standards, protocols, and procedures that mandate
security vulnerability assessments and site security plans for
covered chemical facilities. The requirements for vulnerability
assessments and site security plans must be risk-based,
performance-based, and take into consideration cost and
technical feasibility; quantities of a substance of concern
stored, used, or handled; and the potential for death, injury,
or serious adverse effects to human health, the environment,
critical infrastructure, National security, the National
economy, or public welfare from a terrorist-related release.
Upon request of a covered chemical facility, the Secretary is
required to provide technical assistance and guidance to a
covered chemical facility that is preparing a security
vulnerability assessment or site security plan.
This section requires all security vulnerability
assessments and site security plans to detail the role of
employees in deterring or responding to a chemical facility
terrorist incident, as appropriate. Under this section, owners
or operators of covered chemical facilities must provide a
minimum of eight hours of training for employees, including a
discussion of substances of concern; the prevention,
preparedness, and response plan of the facility; identification
of opportunities to use methods to reduce the consequences of a
terrorist attack; and practice emergency response procedures.
This provision also requires the Secretary to provide a
covered chemical facility with information to complete the
vulnerability assessment including: potential consequences,
criticality, proximity to other critical infrastructure, and
best practices. It requires the facility to include appropriate
employees, supervisors, and union representatives in the
development of the security vulnerability assessment and site
security plan.
This section requires the Secretary to establish risk-based
chemical security performance requirements with separate and
increasingly stringent requirements for each tier. Under this
provision, the Secretary is required to permit facilities to
select a combination of security measures in order to meet the
requirements, and allow two or more co-located facilities to
develop and implement coordinated security vulnerability
assessments and site security plans.
Moreover, under this section, the Secretary may accept, in
whole or in part, an alternate security program that a facility
submits to the Secretary as fulfilling some or all of the
regulatory requirements to complete a security vulnerability
assessment and site security plan. The types of alternate
security programs that are envisioned include vulnerability
assessments, security plans or other documents developed to
comply with other Federal laws such as the Safe Drinking Water
Act(42 U.S.C. 300i-2), the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.), the Maritime Transportation Safety
Act (chapter 701 of title 46, United States Code), State and
local laws, and voluntary industry practices such as the
American Chemistry Council's Responsible Care Code. The
Committee encourages the Department of Homeland Security to
allow process safety reviews to be submitted for review for the
assessment required under section 2110 of this legislation. The
Committee intends for the Secretary to review and approve or
disapprove all submissions of alternate security program
information on an individual, facility-by-facility basis.
This section requires facilities already subject to the
Safe Drinking Water Act, the Federal Water Pollution Control
Act, and the Maritime Transportation Safety Act to provide the
documents submitted to comply with those existing authorities
to the Secretary for review. Under this process, the Secretary
determines if the actions under those existing authorities
fulfill the requirements of this legislation, and whether
further action by the facility is needed. The Secretary shall
consult with appropriate authorities, to ensure the
requirements of this legislation and existing authorities are
non-duplicative and non-contradictory. The Committee believes
that the Secretary, by undertaking this analysis, will ensure
that actions taken by covered chemical facilities to comply
with other Federal requirements are leveraged.
This section requires the Secretary to coordinate with the
Attorney General with regard to facilities that import,
manufacture, distribute, or store explosive materials and are
required to be licensed under 18 U.S.C. 40.
With respect to a high-risk tier facility, this section
requires such a facility to conduct a security vulnerability
assessment and to prepare and implement a site security plan
that addresses the results of that facility's security
vulnerability assessment. A security vulnerability assessment
includes consideration of, among other things, the
identification of any hazard that could result from a terrorist
incident; any vulnerabilities to: physical security, computers,
communication networks or systems, or automated systems,
alarms, cameras, or protection systems, utilities or other
infrastructure, and the structural integrity of storage,
handling, or other equipment; and consideration of threat
information.
Further, this provision requires a high-risk tier facility
to develop and implement a site security plan that includes:
security measures that address the vulnerabilities identified
in the assessment and meet the risk-based security performance
standards; a plan and schedule for drills and exercises that
include, as appropriate, first responders, local law
enforcement, supervisory and non-supervisory employees, and
union representatives; equipment, plans, and procedures for
responding to a terrorist incident including site evacuation,
release mitigation, and containment plans; coordination efforts
with State, local, and tribal law enforcement, first
responders, and Federal officials; information on the security
officer who will serve as the point of contact for incident
management at the facility; a description of enhanced security
measures to be used at times of heightened terrorist threat; an
analysis of methods to reduce the consequences of a terrorist
attack; and as well as any other provisions required by the
Secretary.
This section requires the Secretary to conduct Red-Team
exercises at each high-risk tier facility at least once in a
six year period.
This section also requires the Secretary to provide timely
threat-related information to the maximum extent practicable to
high-risk tier chemical facilities. All covered chemical
facilities are required to provide timely reports of any
intentional, attempted, or accidental penetration of the
facilities physical or cybersecurity.
The Committee intends that a covered chemical facility use,
as the basis for an assessment under this section, the
information on a worst-case chemical facility terrorist
incident provided by the Secretary to that facility. The
Committee also intends that guidance provided by the Secretary
under this section shall be in convenient and user-friendly
format, including methodologies and computer software that
assist covered chemical facilities in evaluating options to
meet security performance standards. The Committee does not
intend for any provision of this section to relieve any covered
chemical facility of the responsibility to comply with each
requirement of this title.
Section 2104. Record Keeping; Site Inspections.
This section requires that a current copy of the security
vulnerability assessment and site security plan be maintained
at each facility. Moreover, under this section, the Secretary
of Homeland Security shall conduct security verifications and
inspections and the Secretary or his designee shall have a
right of entry to each facility at reasonable times to conduct
verifications or inspections or both. In addition, the
Secretary may, by regulation, authorize third-party entities
that are trained and certified by the Secretary to conduct
verifications and inspections to evaluate compliance with
regulations, security standards, and requirements under this
title.
This provision also requires the Secretary to consult with
owners, operators, supervisory and non-supervisory employees,
as well as union representatives, as appropriate, during the
verification and inspections process. Where appropriate, the
Secretary shall provide an opportunity to such individuals to
be present during an inspection or verification.
It also requires that employee representatives receive
copies of the vulnerability assessment and site security plan,
and requires that such information be handled in accordance
with the protection of information section.
To carry out this title, the Secretary may require specific
documentation to be furnished in order to conduct a
verification or inspection. Failures to maintain, produce, or
allow access to records or to the property shall result in an
order requiring compliance.
Section 2105. Enforcement.
This section requires the Secretary of Homeland Security to
promulgate regulations that set specific deadlines for
submitting security vulnerability assessments and site security
plans, which may differ according to risk-based tier. Under
this provision, such regulations shall set forth the specific
deadlines for notifying the Secretary if there is any change in
the use of more than the threshold amount of a substance of
concern or any significant change in a security vulnerability
assessment or site security plan previously submitted. In
addition, the regulations shall require facilities to
periodically review the adequacy of the facility's security
vulnerability assessment or site security plan on a timeline
set by the Secretary.
This section also requires the Secretary to review and
approve security vulnerability assessments or site security
plans no later than 180 days from the date of receipt. Under
this provision, the Secretary may reject a security
vulnerability assessment or site security plan if it does not
comply with the requirements under section 2103 of this
legislation or if the site security plan does not sufficiently
address any vulnerabilities identified in the vulnerability
assessment or through associated oversight actions, such as Red
Team exercise, that are set forth in section 2103 or section
2104 of this legislation. Further, in the event of the
Secretary's disapproval, this measure requires such disapproval
to be communicated in writing to the facility and to clearly
explain the deficiencies in the submission; provide guidance in
addressing the deficiencies; and require the facility to revise
the submission to address the deficiencies by a specified date.
If the revised vulnerability assessment, site security plan, or
implementation plan is not submitted within the specified
period, the Secretary shall issue an order for compliance
requiring the deficiencies to be corrected by a specified date.
In the case of a high-risk tier facility, the Secretary
shall, at the request of the facility, consult with that
facility to identify appropriate steps to address the
deficiencies. If an order for compliance is issued by the
Secretary to a high-risk tier facility and that facility still
does not comply, the Secretary may issue an order for that
facility to cease operations until the facility is determined
to be in compliance. In the case of a drinking water or
wastewater facility that is in non-compliance, the Secretary
may only issue an order to cease operations if the continued
operation of the facility represents a clear and present danger
to homeland security.
Finally, this section requires the Secretary to establish a
reporting process through which any person can notify the
Department about problems, deficiencies, or vulnerabilities at
a chemical facility. The reporting process shall include
provisions to keep the identity of any such person
confidential, ensure acknowledgement of receipt and review of
such information, and ensure that appropriate steps are
undertaken to address any identified problem, deficiency, or
vulnerability. Under this provision, no employee may be
discharged or otherwise discriminated against because the
employee: reports such problems to his employer, the Secretary
or the facility operator; refuses to engage in illegal
practices; testifies on such problems before Congress or in a
Federal or State proceeding; commenced a Federal or State
proceeding or caused a Federal or State proceeding to be
commenced; or assisted or participated in such proceeding. Any
employee covered under this section who alleges discrimination
in violation of this section may bring an action under 49
U.S.C. 20109. The Committee strongly believes that those
``whistleblowers'' who bring security concerns to the attention
of the Secretary or the facility owner or operator are this
Nation's security ``eyes and ears'' at these facilities.
Facility owners and operators should listen to and appreciate
whistleblowers for their service, not retaliate against or
punish them for coming forward.
Section 2106. Penalties.
This section allows the Secretary of Homeland Security to
bring an action in a U.S. district court against any facility
that violates or fails to comply with any order or site
security plan under this legislation. The relief available to
the Secretary includes an injunctive relief order and civil
penalties of not more than $50,000 for each day a violation or
failure to comply continues.
Any officer or employee of a Federal, State, local or
tribal agency that knowingly discloses any record containing
information about a facility's vulnerability assessment or site
security plan or any other information protected under section
2108 (f) shall be imprisoned for not more than a year, fined
under chapter 227 of title 18, United States Code, or receive
both penalties.
Section 2107. Federal Preemption.
This section affirms the right of any State or local
authority to adopt or enforce any statute, regulation,
requirement, or standard of performance for chemical facility
security that is more stringent than this legislation. However,
if any such statute, regulation, requirement, or standard of
performance directly conflicts with Federal regulations
established under this measure, the Federal statute preempts
the State or local measure. This provision also clarifies that
nothing in this measure shall preclude a State or local
authority from adopting or enforcing environmental protection,
health, or safety laws or regulations.
The Committee intends for this section to address instances
of ``conflict preemption,'' and does not invoke the doctrine of
``field preemption.'' As the Department of Homeland Security
has noted in the Chemical Facility Anti-Terrorism Standards
interim rule (and confirmed in the final rule), ``conflict
preemption'' is only meant to indicate that the provision ``is
not to be conflicted by, interfered with, hindered by, or
frustrated by State measures, under long-standing legal
principles'' (DHS 2006-0073, RIN 1601-AA41, 6 C.F.R. Part 27).
The Committee notes that under the current CFATS
regulations, no current State law or regulation regarding
chemical facility security has been preempted, and the
Committee intends that the CFATS regulations required under
this legislation follow that precedent.
Section 2108. Protection of Information.
This section provides for a general prohibition against the
disclosure of ``protected information'' under the Freedom of
Information Act (5 U.S.C. 552) or other State or local sunshine
laws. This provision requires the Secretary of Homeland
Security to prescribe regulations or orders to prohibit
unauthorized disclosure of protected information. Such
regulations should allow information sharing, on a confidential
basis, with Federal, State, local, and tribal law enforcement
as well as with first responders and appropriate chemical
facility personnel, as necessary; allow confidential use in
administrative or judicial proceedings; limit access to
protected information to persons designated by the Secretary;
and ensure, to the maximum extent practical, that protected
information is maintained in a secure location and access to
such information be limited.
This section does not affect any obligation the facility
may have under other Federal, State, or local laws to submit
such information. This section also does not prohibit the
sharing of information with Congress and does not affect any
authority or obligation of any Federal agency to disclose a
record or information that the Federal agency obtains from the
facility through enforcement of a different law or regulation.
For the purposes of this title, protected information
includes: criteria and data used by the Secretary to assign
chemical facilities to risk-based tiers; the submitted security
vulnerability assessments and site security plans; information
concerning the security performance requirements; any other
information generated or collected by a Federal, State, local
or tribal government agency, by a chemical facility that
describes any vulnerability of a facility to an act of
terrorism or describes the assignment of a facility to a risk-
based tier or describes a security measure of the facility; and
any other information that the disclosure of which the
Secretary determines would be detrimental to the security of a
chemical facility.
Section 2109. Certification of Third-Party Entities.
This section permits the Secretary of Homeland Security to
certify third-party entities to carry out certain sections of
this title including the review of information submitted to the
Secretary regarding a facility's use and storage of substances
of concern, security vulnerability assessments, site security
plans, alternate security programs, site inspections, and
provision of technical assistance. The Secretary is required to
establish standards to ensure that such third-party entities
have knowledge of physical infrastructure protection,
cybersecurity, chemical facility security, hazard analysis,
engineering, and other related expertise that the Secretary
deems as necessary.
This provision also requires the Secretary, before
selecting a third-party entity to carry out certain sections of
this title, to conduct a 90-day independent review to determine
whether the entity is in compliance with minimum standard
operating procedures, including safety and hazard standards as
set forth by the Secretary, and to determine whether the entity
has any potential conflicts or business engagements that could
compromise the entity's ability to execute its responsibilities
as a third-party entity. Under this section, if the Secretary
is satisfied, at the conclusion of the independent review, with
the entity's ability to perform, then the Secretary shall issue
a certificate of conformance with operating procedures and
requirements and the demonstrated ability to perform
validations. Such qualified third-party entities will receive
limited litigation and risk management protection under the
SAFETY Act (6 U.S.C. 441). The Secretary is required to
regularly monitor and inspect the operations of third-party
entities to ensure that minimum standard operating procedures
are met.
In addition, every third-party entity that is awarded a
contract must plan and implement the award of subcontracts to
small business concerns, including economically disadvantaged
small businesses, those owned by service-disabled veterans,
HUBZone small businesses, Small Business Act 8(a) businesses,
and historically black colleges and universities, Hispanic-
serving institutions, tribal colleges and universities, and
other minority-serving institutions. The provision also
requires the Secretary, to the maximum extent practicable, to
seek to facilitate the award of third-party entity contracts to
groups of small businesses or ``alliances.''
This section also requires an annual report to Congress
outlining the extent to which small business concerns
participate in third-party entity contracts used to carry out
the requirements of this legislation.
By including these provisions, the Committee intends to
ensure that under-represented businesses are given a fair
chance to contribute to the security of the chemical sector.
Section 2110. Methods to Reduce the Consequences of a Terrorist
Attack.
This section requires that the site security plan of any
covered chemical facility include an assessment of methods to
reduce the consequences of a terrorist attack on the facility.
Such methods may include substitution of chemicals, changes in
processes, storage or use of less of a chemical of concern on
site, changes to safer practices, reducing consequences of
equipment failure or human error, improvements in inventory
control, as well as reduction or elimination of storage,
transportation, handling, disposal, or discharge of substances
of concern. As a part of this assessment, the facility shall
include information on the degree to which each method, if
applied, will reduce the consequences of a terrorist attack;
the technical viability associated with each method to reduce
the consequences of a terrorist attack; and the costs and
savings associated with each method to reduce the consequences
of a terrorist attack.
Under this provision, high-risk tier chemical facilities
are required to implement a method or methods to reduce the
consequences of a terrorist attack if the Secretary of Homeland
Security determines that such a method or methods: would
significantly reduce the risk of death, injury, or serious
adverse effects to human health from a terrorist release so
long as the action does not shift risk and result in an
increase in interim storage of a substance of concern outside
the facility or directly result in another facility moving into
a high-risk tier; can feasibly be incorporated into the
facility's operations; and would not significantly and
demonstrably impair the ability of the facility to continue to
operate in the United States. Where a high-risk tier facility
believes it is unable to act in accordance with the Secretary's
determination that it must adopt a method or methods to reduce
the consequences of a terrorist attack, such facility is
required to provide a written explanation to the Secretary
within 60 days of receipt of the Secretary's determination. The
Secretary, in turn, shall consult with the facility and issue a
final determination as to whether implementation is required.
If implementation is required, the facility shall begin
implementing the changes within 180 days of the Secretary's
determination.
This section also requires the Secretary to provide
information on each method to reduce the consequences of a
terrorist attack to covered chemical facilities and provides
that such information may be gathered by the Secretary from
information provided by facilities, academic institutions,
National Laboratories, private sector experts, other safety and
security experts, and any other method the Secretary deems
appropriate. Information that is made available to the public
shall not identify any specific facility and must comply with
the protection of information requirements of section 2108 of
this legislation.
This section authorizes the Secretary to make funds
available to help defray the cost to facilities of implementing
methods to reduce consequences of a terrorist attack either on
a voluntary basis or pursuant to a determination by the
Secretary. It also requires the Secretary to give special
consideration to those facilities required by the Secretary to
implement methods to reduce the consequences of a terrorist
attack as well as publicly-owned water and wastewater
facilities. Under this provision, the Secretary is prohibited
from requiring a publicly-owned facility to implement methods
to reduce the consequences of a terrorist attack unless that
facility receives funding to help defray the cost of
implementation.
The Committee recognizes that the surest way to protect a
facility is for the facility to not become a target in the
first place. As such, implementing methods to reduce the
consequences of a terrorist attack should be a top priority in
securing our Nation's chemical sector. However, the Committee
recognizes that chemical facilities should have autonomy in
their operations and expects the Secretary to carefully
consider any decision to require implementation of such
methods.
The Committee intends that information on alternative
approaches other than protected or proprietary information be
available under this section to chemical facility owners and
operators; academic institutions; officials from Federal,
State, local, and tribal governments; training providers and
partners in section 8 of this measure; the National Chemical
Security Center of Excellence in section 2115 of this measure;
National Laboratories; facility employees; employee
representatives and organizations; owners and developers of
alternative technologies; and other public and private sector
experts for the purpose of assessing or implementing
alternative approaches.
The Committee observes that, in implementing the current
Chemical Facility Anti-Terrorism Standards (CFATS) Interim
Final Rule, the Department has been appropriately sensitive to
the concerns of the agricultural sector regarding chemical
security. The agricultural sector has been understood to
include farms and farmers, agricultural retailers, rural
propane distributors and fertilizer manufacturers, and the
Committee supports this understanding. Furthermore, the
Committee supports the Department's decision to grant an
extension for the ``Top-Screen'' information for the
agricultural sector.
Similarly, the Committee intends that the Department give
particular attention to the agricultural sector and take into
account both the proximity of such facilities to major
population centers and their vital role in our Nation's economy
as they administer chemical security regulations. The Committee
believes that, in general terms, such facilities represent a
relatively low security risk, as they use and store chemicals
in agricultural settings, such as farms, feed stores, and
similar facilities. It is not the intention of the Committee to
promote or discourage the use of any particular chemical in
agriculture through the provisions in this section.
The Committee does not intend for the Department to create
a blanket mandate for the use of a government-selected
``safest'' technology or process, but to assess the security
needs for each facility on a case-by-case basis. Additionally,
the Committee expects the Department to carefully consider
potential adverse affects of requiring implementation of
specific methods to reduce the consequences of a terrorist
attack. For example, placing limits on the amount of explosive
fuels that can be stored at one facility could result in an
increase of risk in other areas and less secure activities such
as use of smaller but more numerous holding tanks, or more
frequent coupling and decoupling of fuel trucks and fuel tanks.
Section 2111. Applicability.
This section clarifies that this legislation shall not
apply to any facility owned and operated by the Departments of
Defense, Justice, or Energy, or any facility that is owned or
operated by a licensee or certificate holder of the Nuclear
Regulatory Commission. Moreover, this legislation shall not
apply to the transportation in commerce (including incidental
storage) of a substance of concern which is regulated as a
hazardous material under 49 U.S.C. 51.
Section 2112. Savings Clause.
This section specifies that nothing in this measure affects
any existing obligation or liability under any other Federal
law including section 112 of the Clean Air Act (42 U.S.C.
7412), the Federal Water Pollution Control Act, the Resource
Conservation and Recovery Act, the National Environmental
Policy Act of 1969, the Occupational Safety and Health Act, the
National Labor Relations Act, the Emergency Planning and
Community Right to Know Act, the Safe Drinking Water Act, the
Maritime Transportation Security Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act.
The Committee intends for this measure to increase the
security of our Nation's chemical facilities, while recognizing
that other laws regarding public and environmental health and
safety must not be compromised.
Section 2113. Office of Chemical Facility Security.
This section establishes within the Department of Homeland
Security an Office of Chemical Facility Security that is headed
by a Director. Under the provision, the professional
qualifications for the Director, a Senior Executive Service
career position, include a demonstrated knowledge of physical
infrastructure protection, cybersecurity, chemical facility
security, hazard analysis, chemical process engineering,
chemical process safety reviews, and other such factors that
the Secretary determines to be necessary. In conducting the
selection process for the Director, the Secretary shall make a
reasonable effort to select an individual from among a group of
candidates that is diverse with respect to race, ethnicity,
age, gender, and disability.
Section 2114. Security Background Checks of Covered Individuals at
Certain Chemical Facilities.
This section requires the Secretary of Homeland Security to
issue regulations requiring covered chemical facilities
assigned to a high-risk tier to subject covered individuals who
have access to restricted areas or critical assets to security
background checks based on risk-based guidance. Under this
provision, such regulations shall address the appropriate
scope, process, necessary biographical information and other
data to be collected, as well as redress procedures for
security background checks performed on such covered
individuals. This provision directs that, pursuant to the final
regulation or any future rule, regulation, directive, or
guidance, a facility shall not make an adverse employment
decision as a result of a security background check unless the
individual in question has been convicted of, found not guilty
by reason of insanity, is under want, warrant, or indictment,
or has been incarcerated within the past 5 years for a
permanent or interim disqualifying crime under 49 C.F.R. 1572,
is determined to be a known terrorist or have terrorist ties,
or is determined not to be legally authorized to work in the
United States.
This section also mandates that an adequate redress process
for individuals subjected to an adverse employment decision
because of a background check must be in place for a chemical
facility to be in compliance with this legislation. Moreover,
this provision authorizes the Secretary to order an appropriate
remedy, including reinstatement of the covered individual,
where a covered chemical facility wrongfully made an adverse
employment decision; ensures that any such covered individual
has access to any public-record event that provides the basis
for the adverse employment decision; and ensures that the
covered individual receives full wages and benefits until all
appeals and waiver procedures are exhausted. This section also
prohibits a chemical facility from misrepresenting to an
employee or labor arbiter the scope, application, or meaning of
any rules, regulations, directives, or guidance issued by the
Secretary related to security background check requirements
when conducting a security background check.
This provision directs that any information obtained by the
Secretary or a covered chemical facility shall not be made
public, may not be accessed by other employees not directly
involved with collecting the information or conducting or
evaluating security background checks, shall be maintained
confidentially by the facility, may be used only to make
employment determinations under this provision, and may be
shared by the Secretary with other Federal law enforcement
agencies.
In addition, this section clarifies that nothing contained
therein shall be construed to abridge any right or
responsibility of a covered individual or covered chemical
facility under any other Federal, State, local, or tribal law
or collective bargaining agreement. Similarly, this section
shall not be construed to preempt any other Federal, State,
local, or tribal law that requires criminal history background
checks, checks on authorization of an individual to work in the
United States, or other background checks of covered
individuals.
This provision defines a security background check as a
review provided at no cost to the covered individual for the
purpose of identifying individuals who may pose a threat to
chemical facility security, to National security, or of
terrorism. Further, this section defines the following as
sources for the review: relevant databases to validate
identity, check criminal history, check legal immigration
status, identify terrorists or those with terrorist ties, and
other relevant information as determined by the Secretary.
Checks conducted to identify terrorists or individuals with
known terrorist ties must take into consideration all relevant
databases, including the consolidated terrorist watch list and
the no-fly list.
Section 2115. National Chemical Security Center of Excellence.
This section establishes a National Chemical Security
Center of Excellence whose mission is to conduct research and
education and to develop technology to lower the overall risk
of a terrorist chemical attack, including technologies or
practices to decrease threats, vulnerabilities, and
consequences in order to ensure the security of chemical
facilities. It specifies that at least three institutions of
higher education must be members of the consortium, of which
one must be a historically black college or university and one
must be a Hispanic-serving institution. Under this provision,
the National Chemical Center of Excellence, and any other
chemical, biological, or agricultural Center of Excellence must
be maintained as distinct entities with regard to organization
and funding.
Section 2116. Authorization of Appropriations.
This section authorizes $325 million to the Secretary of
Homeland Security for FY 2010 to carry out the requirements of
this legislation, of which $100 million shall be made available
to facilities for funding capital costs of implementing methods
to reduce the consequences of a terrorist attack pursuant to
section 2110(e) of this legislation; $300 million for FY 2011
to carry out the requirements of this legislation, of which $75
million shall be made available to facilities for funding
capital costs of implementing methods to reduce the
consequences of a terrorist attack pursuant to section 2110(e)
of this legislation; and $275 million for FY 2012 to carry out
the requirements of this legislation, of which $50 million
shall be made available to facilities for funding capital costs
of implementing methods to reduce the consequences of a
terrorist attack pursuant to section 2110(e) of this measure.
This section also repeals section 550 of the Department of
Homeland Security Appropriations Act of 2007 (P.L. 109-295), to
be effective October 1, 2009. Moreover, this provision
specifies that the Secretary may, as the Secretary deems
appropriate, use any of the existing CFATS regulations to carry
out the requirements of this measure. It also specifies that
the Secretary may require chemical facilities to adhere to pre-
existing timelines under such existing regulations, where a
chemical facility is required to submit a security
vulnerability assessment and site security plan under section
2103 of this measure. Additionally, this provision establishes
deadlines for the Secretary to update guidance,
recommendations, or suggested action items relating to
performing a security background check of a covered individual
and for high-risk chemical facilities to comply with the new
vulnerability assessment and site security plan requirements.
Section 5. Annual Report to Congress.
This section requires an annual report to Congress not
later than one year from the date of enactment of this
legislation on progress in achieving compliance with this
legislation, including an assessment of the effectiveness of
the site security plans developed under this measure; lessons
learned in implementation, including red-team exercises; and
recommendations of the Secretary of Homeland Security to
improve those areas, including the feasibility of programs to
increase the number of economically disadvantaged businesses
eligible to perform third-party entity responsibilities. This
provision also directs that the report may not include
information protected under section 2108 of this legislation.
The Committee intends that the assessment of programs,
plans, and procedures should describe and enumerate the scope
of the program using aggregate information, including but not
limited to the number of facilities that are covered; number
that are in compliance; number that have implemented
alternative approaches; number that are in each risk tier;
number that have moved to a lower risk tier; and, for each risk
tier, the number of facilities sorted by population at risk in
and around each facility.
Section 6. Inspector General Report.
This section requires the Inspector General to submit a
report to Congress on the effectiveness of the implementation
of this measure, including the effectiveness of the site
security plans required under this measure and any
recommendations to improve the programs, plans, and procedures
required under its provisions, the Secretary's dissemination of
best practices under section 2103(a)(1)(A) of this measure, and
the participating rates of economically disadvantaged
businesses eligible to perform third-party entity
responsibilities. Under this provision, the Inspector General's
report must be submitted not later than October 1, 2010, and
may include a classified annex if deemed necessary.
Section 7. Deadline for Regulations.
This section sets the effective date for full
implementation of final rules as October 1, 2009. The Committee
intends for all Federal Agencies to take into account all
necessary regulatory processes and timelines to guarantee full
implementation by this date.
Section 8. Chemical Facility Training Program.
This section amends title VIII of the Homeland Security Act
of 2002 (6 U.S.C. 361) by adding a new section 802 that
establishes a Chemical Facility Security Training Program to
enhance collective response to terrorism and the capabilities
of chemical facilities to prevent, prepare for, respond to,
mitigate against, and recover from threatened or actual
terrorist incidents. This provision also specifies that the
Program provide training across multiple disciplines, including
Federal, State, and local authorities; chemical plant owners,
operators, and employees; and governmental and nongovernmental
emergency response providers. It also directs that the training
shall be consistent with the National Incident Management
System, the National Response Framework, the National
Infrastructure Protection Plan, and the National Preparedness
Guidelines. In addition, under this section, the Secretary
shall support the promulgation of national voluntary consensus
standards for such training programs and shall work with
government training programs, chemical facilities, academic
institutions, industry and private organizations, employee
organizations, and others to develop and deliver state-of-the-
art training. This section also directs the Secretary to
utilize, as appropriate, existing training provided by
industry, public safety academies, Federal programs, employee
organizations, State and private colleges and universities, and
other chemical facilities
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
HOMELAND SECURITY ACT OF 2002
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) * * *
(b) Table of Contents.--The table of contents for this Act is
as follows:
* * * * * * *
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
Subtitle A--Coordination with Non-Federal Entities
* * * * * * *
Sec. 802. Chemical facility training program.
* * * * * * *
TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES
Sec. 2101. Definitions.
Sec. 2102. Risk-based designation and ranking of chemical facilities.
Sec. 2103. Security vulnerability assessments and site security plans.
Sec. 2104. Record keeping; site inspections.
Sec. 2105. Enforcement.
Sec. 2106. Penalties.
Sec. 2107. Federal preemption.
Sec. 2108. Protection of information.
Sec. 2109. Certification by third-party entities.
Sec. 2110. Methods to reduce the consequences of a terrorist attack.
Sec. 2111. Applicability.
Sec. 2112. Savings clause.
Sec. 2113. Office of Chemical Facility Security.
Sec. 2114. Security background checks of covered individuals at certain
chemical facilities.
Sec. 2114. National chemical security center of excellence.
Sec. 2115. Authorization of appropriations.
* * * * * * *
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
Subtitle A--Coordination with Non-Federal Entities
* * * * * * *
SEC. 802. CHEMICAL FACILITY TRAINING PROGRAM.
(a) In General.--The Secretary shall establish a Chemical
Facility Security Training Program (referred to in this section
as the ``Program'') for the purpose of enhancing the collective
response to terrorism and the capabilities of chemical
facilities to prevent, prepare for, respond to, mitigate
against, and recover from threatened or actual chemical
facility terrorist incidents.
(b) Requirements.--The Program shall provide training that--
(1) reaches multiple disciplines, including Federal,
State, local, and tribal government officials, chemical
facility owners, operators, and employees, and
governmental and nongovernmental emergency response
providers;
(2) utilizes multiple training mediums and methods;
(3) addresses chemical facility security and site
security plans, including--
(A) site security plans and procedures for
differing threat levels;
(B) physical security, security equipment and
systems, access control, and methods for
preventing and countering theft;
(C) recognition and detection of weapons and
devices;
(D) security incident procedures, including
procedures for communicating with emergency
response providers;
(E) evacuation procedures and use of
appropriate personal protective equipment; and
(F) other requirements that the Secretary
deems appropriate.
(4) is consistent with, and supports implementation
of, the National Incident Management System, the
National Response Framework, the National
Infrastructure Protection Plan, the National
Preparedness Guidelines, and other national
initiatives;
(5) includes consideration of existing security and
hazardous chemical training programs including Federal
or industry programs; and
(6) is evaluated against clear and consistent
performance measures.
(c) National Voluntary Consensus Standards.--The Secretary
shall--
(1) support the promulgation, and regular updating as
necessary and appropriate of national voluntary
consensus standards for chemical facility security
training ensuring that training is consistent with such
standards; and
(2) ensure that the training provided under this
section is consistent with such standards.
(d) Training Partners.--In developing and delivering training
under the Program, the Secretary shall--
(1) work with government training programs, chemical
facilities, academic institutions, industry and private
organizations, employee organizations, and other
relevant entities that provide specialized state-of-
the-art training; and
(2) utilize, as appropriate, training provided by
industry, public safety academies, Federal programs,
employee organizations, State and private colleges and
universities, and other chemical facilities.
* * * * * * *
TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES
SEC. 2101. DEFINITIONS.
In this title, the following definitions apply:
(1) The term ``chemical facility'' means any
facility--
(A) at which a chemical is or may be used,
stored, manufactured, processed or distributed;
and
(B) for which the Secretary requires the
owner or operator of the chemical facility to
submit information pursuant to section
2102(b)(2).
(2) The term ``chemical facility security performance
standard'' means a risk-based standard established by
the Secretary to ensure or enhance the security of a
chemical facility against a chemical facility terrorist
incident that is designed to address--
(A) restricting the area perimeter;
(B) securing site assets;
(C) screening and controlling access to the
facility and to restricted areas within the
facility by screening or inspecting individuals
and vehicles as they enter, including--
(i) measures to deter the
unauthorized introduction of dangerous
substances and devices that may
facilitate a chemical facility
terrorist incident or actions having
serious negative consequences for the
population surrounding the chemical
facility; and
(ii) measures implementing a
regularly updated identification system
that checks the identification of
chemical facility personnel and other
persons seeking access to the chemical
facility and that discourages abuse
through established disciplinary
measures;
(D) methods to deter, detect, and delay a
chemical facility terrorist incident, creating
sufficient time between detection of a chemical
facility terrorist incident and the point at
which the chemical facility terrorist incident
becomes successful, including measures to--
(i) deter vehicles from penetrating
the chemical facility perimeter,
gaining unauthorized access to
restricted areas, or otherwise
presenting a hazard to potentially
critical targets;
(ii) deter chemical facility
terrorist incidents through visible,
professional, well-maintained security
measures and systems, including
security personnel, detection systems,
barriers and barricades, and hardened
or reduced value targets;
(iii) detect chemical facility
terrorist incidents at early stages
through counter surveillance,
frustration of opportunity to observe
potential targets, surveillance and
sensing systems, and barriers and
barricades; and
(iv) delay a chemical facility
terrorist incident for a sufficient
period of time so as to allow
appropriate response through on-site
security response, barriers and
barricades, hardened targets, and well-
coordinated response planning;
(E) securing and monitoring the shipping,
receipt, and storage of a substance of concern
for the chemical facility;
(F) deterring theft or diversion of a
substance of concern;
(G) deterring insider sabotage;
(H) deterring cyber sabotage, including by
preventing unauthorized onsite or remote access
to critical process controls, including
supervisory control and data acquisition
systems, distributed control systems, process
control systems, industrial control systems,
critical business systems, and other sensitive
computerized systems;
(I) developing an emergency plan to respond
to chemical facility terrorist incidents with
the guidance of the Secretary that includes, as
appropriate, an early warning system for local
emergency response providers and the community
surrounding the facility, and exercising such
plan internally and with the assistance of
local law enforcement officials and emergency
response providers to enhance the collective
response to terrorism;
(J) maintaining effective monitoring,
communications, and warning systems,
including--
(i) measures designed to ensure that
security systems and equipment are in
good working order and inspected,
tested, calibrated, and otherwise
maintained;
(ii) measures designed to regularly
test security systems, note
deficiencies, correct for detected
deficiencies, and record results so
that they are available for inspection
by the Department; and
(iii) measures to allow the chemical
facility to promptly identify and
respond to security system and
equipment failures or malfunctions;
(K) ensuring mandatory annual security
training, exercises, and drills of chemical
facility personnel;
(L) performing personnel surety for
individuals with access to restricted areas or
critical assets by conducting appropriate
background checks and ensuring appropriate
credentials for unescorted visitors and
chemical facility personnel, including
permanent and part-time personnel, temporary
personnel, and contract personnel, including--
(i) measures designed to verify and
validate identity;
(ii) measures designed to check
criminal history;
(iii) measures designed to verify and
validate legal authorization to work;
and
(iv) measures designed to identify
people with terrorist ties;
(M) escalating the level of protective
measures for periods of elevated threat;
(N) specific threats, vulnerabilities, or
risks identified by the Secretary for that
chemical facility;
(O) reporting of significant security
incidents to the Department and to appropriate
local law enforcement officials;
(P) identifying, investigating, reporting,
and maintaining records of significant security
incidents and suspicious activities in or near
the site;
(Q) establishing one or more officials and an
organization responsible for security and for
compliance with these standards;
(R) maintaining appropriate records relating
to the security of the facility;
(S) assessing, as appropriate, or utilizing
methods to reduce the consequences of a
terrorist attack; or
(T) any additional security performance
standards the Secretary may specify.
(3) The term ``chemical facility terrorist incident''
means an act or attempted act of terrorism committed
at, near, or against a chemical facility, including--
(A) the release of a substance of concern
from a chemical facility into the surrounding
area as a consequence of an act of terrorism;
or
(B) the obtaining of a substance of concern
by any person for the purpose of using the
substance at a location other than the chemical
facility in furtherance of an act of terrorism;
or
(C) the sabotage of a chemical facility or a
substance of concern at a chemical facility in
furtherance of an act of terrorism.
(4) The term ``employee representative'' means a
representative of the certified or recognized
bargaining agent engaged in a collective bargaining
relationship with a private or public owner or operator
of a chemical facility.
(5) The term ``covered individual'' means a
permanent, temporary, full-time, or part-time employee
of a covered chemical facility or an employee of an
entity with which the covered chemical facility has
entered into a contract who is performing
responsibilities at the facility pursuant to the
contract.
(6) The term ``covered chemical facility'' means a
chemical facility that the Secretary assigns to a risk-
based tier under section 2102(c) that is required to
submit a security vulnerability assessment and site
security plan under section 2103.
(7) The term ``environment'' has the meaning given
the term in section 101 of the Comprehensive
Environmental Response Compensation and Liability Act
of 1980 (42 U.S.C. 9601).
(8) The term ``owner or operator of a chemical
facility'' means any of the following:
(A) The person who owns a chemical facility.
(B) The person who leases such a facility.
(C) The person who operates such a facility.
(9) The term ``release'' has the meaning given the
term in section 101 of the Comprehensive Environmental
Response Compensation and Liability Act of 1980 (42
U.S.C. 9601).
(10) The term ``substance of concern'' means a
chemical substance in quantity and form that is
designated by the Secretary under section 2102(a) as a
chemical substance that poses a risk of being used in
furtherance of a chemical facility terrorist incident.
(11) The term ``method to reduce the consequences of
a terrorist attack'' includes--
(A) input substitution;
(B) catalyst or carrier substitution;
(C) process redesign (including reuse or
recycling of a substance of concern);
(D) product reformulation;
(E) procedure simplification;
(F) technology modification;
(G) use of less hazardous substances or
benign substances;
(H) use of smaller quantities of substances
of concern;
(I) reduction of hazardous pressures or
temperatures;
(J) reduction of the possibility and
potential consequences of equipment failure and
human error;
(K) improvement of inventory control and
chemical use efficiency; and
(L) reduction or elimination of the storage,
transportation, handling, disposal, and
discharge of substances of concern.
SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF CHEMICAL FACILITIES.
(a) Substances of Concern.--
(1) Designation by the secretary.--The Secretary may
designate any chemical substance as a substance of
concern and establish and revise the threshold quantity
for a substance of concern.
(2) Matters for consideration.--In designating a
chemical substance or establishing or adjusting the
threshold quantity for a chemical substance under
paragraph (1), the Secretary shall consider the
potential extent of death, injury, and serious adverse
effects to human health, the environment, critical
infrastructure, national security, the national
economy, and public welfare that would result from a
chemical facility terrorist incident.
(b) List of Covered Chemical Facilities.--
(1) Criteria for list of facilities.--The Secretary
shall maintain a list of covered chemical facilities
that the Secretary determines are of sufficient
security risk for inclusion on the list based on the
following criteria:
(A) The potential threat or likelihood that
the chemical facility will be the target of a
chemical facility terrorist incident.
(B) The potential extent and likelihood of
death, injury, or serious adverse effects to
human health, the environment, critical
infrastructure, national security, the national
economy, and public welfare that could result
from a chemical facility terrorist incident.
(C) The proximity of the chemical facility to
population centers.
(2) Submission of information.--The Secretary may
require the submission of information with respect to
the quantities of substances of concern that are used,
stored, manufactured, processed, or distributed by any
chemical facility to determine whether to designate a
chemical facility as a covered chemical facility for
purposes of this title.
(c) Assignment of Chemical Facilities to Risk-Based Tiers.--
(1) Assignment.--The Secretary shall assign each
covered chemical facility to one of at least four risk-
based tiers established by the Secretary.
(2) Provision of information.--The Secretary may
request, and the owner or operator of a covered
chemical facility shall provide, any additional
information beyond any information required to be
submitted under subsection (b)(2) that is needed for
the Secretary to assign the chemical facility to the
appropriate tier under paragraph (1).
(3) High-risk chemical facilities.--At least one of
the tiers established by the Secretary for the
assignment of chemical facilities under this subsection
shall be a tier designated for high-risk chemical
facilities.
(4) Authority to review.--The Secretary shall
periodically review the criteria under subsection
(b)(1) and may, at any time, determine whether a
chemical facility is a covered chemical facility or is
no longer a covered chemical facility or change the
tier assignment under paragraph (1) of any covered
chemical facility.
(5) Notification.--Not later than 60 days after the
date on which the Secretary determines that a chemical
facility is a covered chemical facility or is no longer
a covered chemical facility or changes the tier
assignment under paragraph (1) of a covered chemical
facility, the Secretary shall notify the owner or
operator of that chemical facility of that
determination or change together with the reason for
the determination or change.
SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND SITE SECURITY PLANS.
(a) Security Vulnerability Assessment and Site Security Plan
Required for Covered Chemical Facilities.--
(1) Requirement for security vulnerability assessment
and site security plan.--The Secretary shall--
(A) establish standards, protocols, and
procedures for security vulnerability
assessments and site security plans to be
required for covered chemical facilities;
(B) provide to the owner or operator of each
covered chemical facility--
(i) the number of individuals at risk
of death, injury, or severe adverse
effects to human health as a result of
a worst case chemical facility
terrorist incident at the covered
chemical facility;
(ii) information related to the
criticality of the covered chemical
facility for purposes of assessing the
degree to which the facility is
critical to the economy or national
security of the United States;
(iii) the proximity or
interrelationship of the covered
chemical facility to other critical
infrastructure, including any utility
or infrastructure (including
transportation) upon which the chemical
facility relies to operate safely and
securely; and
(iv) recommended best practices for
securing chemical facilities;
(C) require the owner or operator of each
such covered chemical facility to--
(i) conduct an assessment of the
vulnerability of the covered chemical
facility to a chemical facility
terrorist incident;
(ii) prepare and implement a site
security plan for that covered chemical
facility that addresses the security
vulnerability assessment and the risk-
based chemical security performance
standards under subsection (c); and
(iii) include appropriate supervisory
and non-supervisory employees of the
covered chemical facility, and any
employee representatives, as
appropriate, in developing the security
vulnerability assessment and site
security plan required under this
clause; and
(D) set deadlines for the completion of
security vulnerability assessments and site
security plans.
(2) Criteria.--The Secretary shall ensure that the
requirements under paragraph (1)--
(A) are risk-based;
(B) are performance-based; and
(C) take into consideration--
(i) the cost and technical
feasibility of compliance by a covered
chemical facility with the requirements
under this title;
(ii) the different quantities and
forms of substances of concern stored,
used, and handled at covered chemical
facilities; and
(iii) the criteria under section
2102(a)(2).
(b) Minimum Requirements for High-Risk Chemical Facilities.--
(1) Requirements for security vulnerability
assessments.--In the case of a covered chemical
facility assigned to a high-risk tier under section
2102(c)(3), the Secretary shall require that the
security vulnerability assessment required under this
section for that chemical facility include each of the
following:
(A) The identification of any hazard that
could result from a chemical facility terrorist
incident at the facility.
(B) Any vulnerability of the chemical
facility with respect to--
(i) physical security;
(ii) programmable electronic devices,
computers, computer or communications
networks, Supervisory Control and Data
Acquisition systems, Process Control
Systems, or other automated systems
used by the chemical facility;
(iii) alarms, cameras, and other
protection systems;
(iv) communication systems;
(v) insider threats; and
(vi) the structural integrity of
equipment for storage, handling, and
other purposes.
(C) Consideration of information relating to
threats relevant to the chemical facility that
is provided by the Secretary in accordance with
paragraph (3).
(D) Such other information as the Secretary
determines is appropriate.
(2) Requirements for site security plans.--In the
case of a covered chemical facility assigned to a high-
risk tier under section 2102(c)(3), the Secretary shall
require that the site security plan required under this
section for that chemical facility include each of the
following:
(A) A description of security measures
selected by the facility that--
(i) address the vulnerabilities of
the facility identified in the security
vulnerability assessment; and
(ii) meet the risk-based chemical
facility security performance standards
established by the Secretary.
(B) A plan and schedule for periodic drills
and exercises to be conducted at the chemical
facility the development and execution of which
includes participation by appropriate
supervisory and non-supervisory facility
employees and any employee representatives,
local law enforcement agencies, and emergency
response providers.
(C) Equipment, plans, and procedures to be
implemented or used by or at the chemical
facility in the event of a chemical facility
terrorist incident that affects the facility,
including site evacuation, release mitigation,
and containment plans.
(D) An identification of any steps taken to
coordinate with State, local, and tribal law
enforcement agencies, emergency response
providers, the Department and other Federal
agencies, and Federal officials on security
measures and plans for the collective response
to a chemical facility terrorist incident.
(E) A specification of the security officer
who will be the point of contact for incident
management purposes and for Federal, State,
local, and tribal law enforcement and emergency
response providers.
(F) A description of enhanced security
measures to be used during periods of time when
the Secretary determines that heightened
terrorist threat conditions exist.
(G) An assessment and, as appropriate, a plan
to implement methods to reduce the consequences
of a terrorist attack.
(3) Provision of threat-related information.--
(A) Responsibilities of the secretary.--The
Secretary shall provide in a timely manner, to
the maximum extent practicable under applicable
authority and in the interests of national
security, to an owner, operator, or security
officer of a chemical facility assigned to the
high-risk tier under section 2102(c)(3), or
another appropriate person, threat information
that is relevant to that chemical facility,
including an assessment of the most likely
method that could be used by terrorists to
exploit any vulnerabilities of the chemical
facility and the likelihood of the success of
such method.
(B) Responsibilities of owner or operator.--
The Secretary shall require the owner or
operator of a covered chemical facility to
provide in a timely manner to the Secretary a
full report on any intentional, attempted, or
accidental penetration of the physical security
or cyber security of the covered chemical
facility.
(4) Red team exercises.--The Secretary shall conduct
red team exercises at chemical facilities selected by
the Secretary that have been assigned to a high-risk
tier under section 2102(c)(3). The Secretary shall
ensure that each such facility shall undergo a red team
exercise during the six-year period that begins on the
effective date of the regulations prescribed to carry
out this title. The exercises required under this
paragraph shall be--
(A) conducted after informing the owner or
operator and any employee representative of the
selected chemical facility and receiving
positive confirmation from such owner or
operator and employee representative, if any;
(B) designed to identify at the selected
chemical facility--
(i) any vulnerabilities of the
chemical facility;
(ii) possible methods of a chemical
facility terrorist incident at that
facility; and
(iii) any weaknesses in the security
plan of the chemical facility; and
(C) conducted so as not to compromise the
security or safety of the chemical facility
during the exercises.
(5) Provision of technical guidance.--The Secretary
shall provide, upon request, assistance and guidance to
a covered chemical facility conducting a security
vulnerability assessment or site security plan required
under this section.
(c) Risk-Based Chemical Security Performance Standards.--
(1) In general.--The Secretary shall establish risk-
based chemical security performance standards for the
site security plans required to be prepared by covered
chemical facilities. The standards shall--
(A) require separate and increasingly
stringent risk-based chemical security
performance standards for site security plans
as the level of risk associated with the tier
increases; and
(B) permit each covered chemical facility
submitting a site security plan to select a
combination of security measures that satisfy
the risk-based chemical security performance
standards established by the Secretary under
this subsection.
(2) Criteria.--In establishing the risk-based
chemical security performance standards under paragraph
(1), the Secretary shall consider the criteria under
subsection (a)(2).
(3) Guidance.--The Secretary shall provide guidance
to each covered chemical facility regarding the types
of security performance measures that, if applied,
could satisfy the requirements under this section,
including measures using methods to reduce the
consequences of a terrorist attack that, if applied,
could result in the Secretary removing the facility
from the list or assigning the facility to a lower risk
tier.
(d) Co-Located Chemical Facilities.--The Secretary shall
allow the owner or operator of two or more chemical facilities
that are located geographically close to each other or
otherwise co-located to develop and implement coordinated
security vulnerability assessments and site security plans, at
the discretion of the owner or operator of the chemical
facilities.
(e) Alternate Security Programs Satisfying Requirements for
Security Vulnerability Assessment and Site Security Plan.--
(1) Determination by the secretary.--In response to a
request by an owner or operator of a covered chemical
facility, or at the discretion of the Secretary, the
Secretary may accept an alternative security program
that the Secretary determines meets all or part of the
requirements of this section and that provides for an
equivalent level of security to the level of security
provided for by the requirements of this title.
(2) Use of alternate security programs.--
(A) Use by individual chemical facilities.--
Upon review and written determination by the
Secretary under paragraph (1) that the
alternate security program of a covered
chemical facility subject to the requirements
of this section satisfies some or all of the
requirements of this section, the chemical
facility may use that alternate security
program.
(B) Use by classes of chemical facilities.--
At the discretion of the Secretary, the
Secretary may identify a class or category of
covered chemical facilities subject to the
requirements of this section that may use an
alternate security program recognized under
this section in order to comply with all or
part of the requirements of this section.
(3) Partial recognition.--If the Secretary finds that
an alternate security program satisfies only part of
the requirements of this section, the Secretary may
allow a covered chemical facility subject to the
requirements of this section to comply with that
alternate security program for purposes of that
requirement, but shall require the covered chemical
facility to submit any additional information required
to satisfy the requirements of this section not met by
that alternate security program.
(4) Notification.--If the Secretary does not approve
an alternate security program for which a petition is
submitted under paragraph (1), the Secretary shall
provide to the person submitting a petition under
paragraph (1) written notification that includes an
explanation of the reasons why the approval was not
made.
(5) Review required.--Nothing in this subsection
shall relieve the Secretary of the obligation--
(A) to review a security vulnerability
assessment and site security plan submitted by
a covered chemical facility under this section;
and
(B) to approve or disapprove each such
assessment or plan on an individual basis.
(f) Other Authorities.--
(1) Other provisions of law.--A covered chemical
facility that is required to prepare a security
vulnerability assessment or site security plan or to
submit or develop other relevant documents under
chapter 701 of title 46, United States Code, the
Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.), or section 1433 of the Safe Drinking Water Act
(42 U.S.C. 300i-2) shall submit such plan or documents
to the Secretary. The Secretary shall determine the
extent to which actions taken by such a chemical
facility pursuant to another provision of law fulfill
the requirements of this section and may require such a
chemical facility to complete any additional action
required by this section. The Secretary shall work with
the heads of the other Federal departments and agencies
with authority with respect to such a covered chemical
facility to ensure that requirements under other
provisions of law and the requirements under this title
are non-duplicative and non-contradictory.
(2) Coordination of storage licensing or permitting
requirement.--In the case of any storage required to be
licensed or permitted under chapter 40 of title 18,
United States Code, the Secretary shall prescribe the
rules and regulations for the implementation of this
section with the concurrence of the Attorney General
and avoid unnecessary duplication of regulatory
requirements.
(g) Role of Employees.--
(1) Description of role required.--As appropriate,
security vulnerability assessments or site security
plans required under this section should describe the
roles or responsibilities that chemical facility
employees are expected to perform to deter or respond
to a chemical facility terrorist incident.
(2) Training for employees.--The owner or operator of
a covered facility required to submit a site security
plan under this section shall annually provide each
employee of the facility with a minimum of 8 hours of
training. Such training shall include--
(A) an identification and discussion of
substances of concern that pose a risk to the
workforce, emergency response providers, and
the community;
(B) a discussion of the prevention,
preparedness, and response plan for the
facility, including off-site consequence
impacts;
(C) an identification of opportunities to
reduce or eliminate the vulnerability of the
facility to a terrorist incident through the
use of methods to reduce the consequences of a
terrorist attack; and
(D) a discussion and practice of appropriate
emergency response procedures.
SEC. 2104. RECORD KEEPING; SITE INSPECTIONS.
(a) Record Keeping.--The Secretary shall require each covered
chemical facility required to submit a security vulnerability
assessment or site security plan under section 2103 to maintain
a current copy of the assessment and the plan at the chemical
facility.
(b) Right of Entry.--For purposes of carrying out this title,
the Secretary (or a designee of the Secretary) shall have, at a
reasonable time and on presentation of credentials, a right of
entry to, on, or through any property of a covered chemical
facility or any property on which any record required to be
maintained under this section is located.
(c) Inspections and Verifications.--
(1) In general.--The Secretary shall, at such time
and place as the Secretary determines to be reasonable
and appropriate, conduct or require the conduct of
chemical facility security inspections and
verifications and may, by regulation, authorize third-
party inspections and verifications by persons trained
and certified by the Secretary for that purpose.
(2) Requirements.--To ensure and evaluate compliance
with this title, including any regulations or
requirements adopted by the Secretary in furtherance of
the purposes of this title, in conducting or requiring
an inspection or verification under paragraph (1), the
Secretary shall--
(A) consult with owners, operators, and
supervisory and non-supervisory employees of
the covered chemical facility, and any employee
representatives, as appropriate; and
(B) provide an opportunity to such owners,
operators, employees, and employee
representatives to be present during the
inspection or verification for the purpose of
providing assistance when and where it is
appropriate.
(d) Requests for Records.--
(1) In general.--In carrying out this title, the
Secretary (or a designee of the Secretary) may require
the submission of or, on presentation of credentials,
may at reasonable times obtain access to and copy any
documentation necessary for--
(A) reviewing or analyzing a security
vulnerability assessment or site security plan
submitted under section 2103; or
(B) implementing such a site security plan.
(2) Proper handling of records.--In accessing or
copying any documentation under paragraph (1), the
Secretary (or a designee of the Secretary) shall ensure
that the documentation is handled and secured
appropriately.
(e) Provision of Records to Employee Representatives.--If a
covered chemical facility required to submit a security
vulnerability assessment or site security plan submitted under
section 2103 has an employee representative, the owner or
operator of the facility shall provide the employee
representative with a copy of any security vulnerability
assessment or site security plan submitted. The employee
representative shall ensure that any such assessment or plan
provided to the representative is handled and secured
appropriately in accordance with section 2108.
(f) Compliance.--If the Secretary determines that an owner or
operator of a covered chemical facility required to submit a
security vulnerability assessment or site security plan under
section 2103 fails to maintain, produce, or allow access to
records or to the property of the covered chemical facility as
required by this section, the Secretary shall issue an order
requiring compliance with this section.
SEC. 2105. ENFORCEMENT.
(a) Submission of Information.--
(1) Initial submission.--The Secretary shall
establish specific deadlines for the submission to the
Secretary of the security vulnerability assessments and
site security plans required under this title. The
Secretary may establish different submission
requirements for the different tiers of chemical
facilities under section 2102(c).
(2) Major changes requirement.--The Secretary shall
establish specific deadlines and requirements for the
submission by a covered chemical facility of
information describing--
(A) any change in the use by the covered
chemical facility of more than a threshold
amount of any substance of concern that could
affect the requirements of the chemical
facility under this title; and
(B) any significant change in a security
vulnerability assessment or site security plan
submitted by the covered chemical facility.
(3) Periodic review by chemical facility required.--
The Secretary shall require the owner or operator of a
covered chemical facility required to submit a security
vulnerability assessment or site security plan under
this section to periodically submit to the Secretary a
review of the adequacy of the security vulnerability
assessment or site security plan that includes a
description of any changes made to the security
vulnerability assessment or site security plan.
(b) Review of Site Security Plan.--
(1) Deadline for review.--Not later than 180 days
after the date on which the Secretary receives a
security vulnerability assessment or site security plan
under this title, the Secretary shall review and
approve or disapprove such assessment or plan.
(2) Disapproval.--The Secretary shall disapprove a
security vulnerability assessment or site security plan
if the Secretary determines that--
(A) the security vulnerability assessment or
site security plan does not comply with the
requirements under section 2103; or
(B) in the case of a site security plan, the
plan or the implementation of the plan is
insufficient to address any vulnerabilities
identified in a security vulnerability
assessment of the covered chemical facility or
associated oversight actions taken under
section 2103 or section 2104, including a red
team exercise.
(3) Provision of notification of disapproval.--If the
Secretary disapproves the security vulnerability
assessment or site security plan submitted by a covered
chemical facility under this title or the
implementation of a site security plan by such a
chemical facility, the Secretary shall--
(A) provide the owner or operator of the
covered chemical facility a written
notification of the disapproval, that--
(i) includes a clear explanation of
deficiencies in the assessment, plan,
or implementation of the plan; and
(ii) requires the owner or operator
of the covered chemical facility to
revise the assessment or plan to
address any deficiencies and, by such
date as the Secretary determines is
appropriate, to submit to the Secretary
the revised assessment or plan;
(B) provide guidance to assist the owner or
operator of the covered chemical facility in
addressing such deficiency;
(C) in the case of a covered chemical
facility for which the owner or operator of the
facility does not address such deficiencies by
such date as the Secretary determines to be
appropriate, issue an order requiring the owner
or operator to correct specified deficiencies
by a specified date; and
(D) in the case of a covered chemical
facility assigned to a high-risk tier under
section 2102(c)(3), upon the request of the
owner or operator of the facility, consult with
the owner or operator to identify appropriate
steps to be taken by the owner or operator to
address the deficiencies identified by the
Secretary.
(4) Order to cease operations.--If the Secretary
determines that the owner or operator of a chemical
facility assigned to a high-risk tier under section
2102(c)(3) continues to be in noncompliance after an
order for compliance is issued under paragraph (3), the
Secretary may issue an order to the owner or operator
to cease operations at the facility until the owner or
operator complies with the order issued under paragraph
(3). Notwithstanding the preceding sentence, the
Secretary may not issue an order to cease operations
under this paragraph to the owner or operator of a
drinking water or wastewater facility unless the
Secretary determines that continued operation of the
facility represents a clear and present danger to
homeland security.
(c) Reporting Process.--
(1) Establishment.--The Secretary shall establish,
and provide information to the public regarding a
process by which any person may submit a report to the
Secretary regarding problems, deficiencies, or
vulnerabilities at a covered chemical facility
associated with the risk of a chemical facility
terrorist incident.
(2) Confidentiality.--The Secretary shall keep
confidential the identity of a person that submits a
report under paragraph (1) and any such report shall be
treated as protected information under section 2108(f)
to the extent that it does not consist of publicly
available information.
(3) Acknowledgment of receipt.--If a report submitted
under paragraph (1) identifies the person submitting
the report, the Secretary shall respond promptly to
such person to acknowledge receipt of the report.
(4) Steps to address problems.--The Secretary shall
review and consider the information provided in any
report submitted under paragraph (1) and shall take
appropriate steps under this title to address any
problem, deficiency, or vulnerability identified in the
report.
(d) Retaliation Prohibited.--
(1) Prohibition.--No owner or operator of a chemical
facility, profit or not-for-profit corporation,
association, or any contractor, subcontractor or agent
thereof, or a Federal, State, local, or tribal
government agency may discharge any employee or
otherwise discriminate against any employee with
respect to his compensation, terms, conditions,
security clearance or other access to classified or
sensitive information, or other privileges of
employment because the employee (or any person acting
pursuant to a request of the employee)--
(A) notified the Secretary, the owner or
operator of a chemical facility, or the
employee's employer of an alleged violation of
this title, including communications related to
carrying out the employee's job duties;
(B) refused to engage in any practice made
unlawful by this title, if the employee has
identified the alleged illegality to the
employer;
(C) testified before or otherwise provided
information relevant for Congress or for any
Federal or State proceeding regarding any
provision (or proposed provision) of this
title;
(D) commenced, caused to be commenced, or is
about to commence or cause to be commenced a
proceeding under this title;
(E) testified or is about to testify in any
such proceeding; or
(F) assisted or participated or is about to
assist or participate in any manner in such a
proceeding or in any other manner in such a
proceeding or in any other action to carry out
the purposes of this title.
(2) Enforcement action.--Any employee covered by this
section who alleges discrimination by an employer in
violation of subsection (a) may bring an action
governed by the rules and procedures, legal burdens of
proof, and remedies applicable under subsections (c)
through (g) of section 20109 of title 49, United States
Code.
SEC. 2106. PENALTIES.
(a) Civil Penalties.--
(1) In general.--The Secretary may bring an action in
a United States district court against any owner or
operator of a chemical facility that violates or fails
to comply with--
(A) any order issued by the Secretary under
this title; or
(B) any site security plan approved by the
Secretary under this title.
(2) Relief.--In any action under paragraph (1), a
court may issue an order for injunctive relief and 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.
(b) Penalties for Unauthorized Disclosure.--Any officer or
employee of a Federal, State, local, or tribal government
agency who, in a manner or to an extent not authorized by law,
knowingly discloses any record containing protected information
described in section 2108(f) shall--
(1) be imprisoned not more than 1 year, fined under
chapter 227 of title 18, United States Code, or both;
and
(2) if an officer or employee of the Government, be
removed from Federal office or employment.
(c) Treatment of Information in Adjudicative Proceedings.--In
a proceeding under this title, information protected under
section 2108, or related vulnerability or security information,
shall be treated in any judicial or administrative action as if
the information were classified material.
SEC. 2107. FEDERAL PREEMPTION.
(a) In General.--Nothing in this title shall preclude or deny
any right of any State or political subdivision thereof to
adopt or enforce any regulation, requirement, or standard of
performance with respect to chemical facility security to
deter, detect, or respond to a chemical facility terrorist
incident that is more stringent than a regulation, requirement,
or standard of performance issued pursuant to this title, or
shall otherwise impair any right or jurisdiction of any State
or political subdivision thereof with respect to chemical
facilities within that State or political subdivision thereof
unless a direct conflict exists between this title and the
regulation, requirement, or standard of performance issued by a
State or political subdivision thereof.
(b) Other Requirements.--Nothing in this title shall preclude
or deny the right of any State or political subdivision thereof
to adopt or enforce any regulation, requirement, or standard of
performance relating to environmental protection, health, or
safety.
SEC. 2108. PROTECTION OF INFORMATION.
(a) Prohibition of Public Disclosure of Protected
Information.--
(1) In general.--The Secretary shall ensure that
protected information, as described in subsection (f),
is not disclosed except as provided in this title.
(2) Specific prohibitions.--In carrying out paragraph
(1), the Secretary shall ensure that protected
information is not disclosed--
(A) by any Federal agency under section 552
of title 5, United States Code; or
(B) under any State or local law.
(b) Regulations.--
(1) In general.--In carrying out the requirements of
this title, the Secretary shall prescribe such
regulations, and may issue such orders, as necessary to
prohibit the unauthorized disclosure of protected
information, as described in subsection (f).
(2) Requirements.--The regulations prescribed under
paragraph (1) shall--
(A) allow for information sharing, on a
confidential basis, with and between, Federal,
State, local, and tribal law enforcement
officials, and emergency response providers,
and appropriate supervisory and non-supervisory
chemical facility personnel, and employee
representatives, if any, with security,
operational, or fiduciary responsibility for
the facility;
(B) provide for the confidential use of
protected information in any administrative or
judicial proceeding, including placing under
seal any such information that is contained in
any filing, order, or other document used in
such proceedings that could otherwise become
part of the public record;
(C) limit access to protected information to
persons designated by the Secretary; and
(D) ensure, to the maximum extent
practicable, that--
(i) protected information shall be
maintained in a secure location; and
(ii) access to protected information
shall be limited as may be necessary
to--
(I) enable enforcement of
this title; or
(II) address an imminent and
substantial threat to security
or an imminent chemical
facility terrorist incident.
(c) Other Obligations Unaffected.--Nothing in this section
affects any obligation of the owner or operator of a chemical
facility to submit or make available information to facility
employees, employee organizations, or a Federal, State, tribal,
or local government agency under, or otherwise to comply with,
any other law.
(d) Submission of Information to Congress.--Nothing in this
title shall be construed as authorizing the withholding of any
information from Congress.
(e) Disclosure of Independently Furnished Information.--
Nothing in this title shall be construed as affecting any
authority or obligation of a Federal agency to disclose any
record or information that the Federal agency obtains from a
chemical facility under any other law.
(f) Protected Information.--
(1) In general.--For purposes of this section,
protected information includes the following:
(A) The criteria and data used by the
Secretary to assign chemical facilities to
risk-based tiers under section 2102 and the
tier to which each such facility is assigned.
(B) The security vulnerability assessments
and site security plans submitted to the
Secretary under this title.
(C) Information concerning the risk-based
chemical facility security performance
standards for a chemical facility under section
2103(c).
(D) Any other information generated or
collected by a Federal, State, local, or tribal
government agency or by a chemical facility for
the purpose of carrying out or complying with
this title--
(i) that describes any vulnerability
of a chemical facility to an act of
terrorism;
(ii) that describes the assignment of
any chemical facility to a risk-based
tier under this title; or
(iii) that describes any security
measure (including any procedure,
equipment, training, or exercise) for
the protection of a chemical facility
from an act of terrorism.
(2) Exclusions.--For purposes of this section,
protected information does not include--
(A) information that is publicly available;
(B) information that a chemical facility has
disclosed other than in accordance with this
section; or
(C) information that, if disclosed, would not
be detrimental to the security of a chemical
facility.
SEC. 2109. CERTIFICATION BY THIRD-PARTY ENTITIES.
(a) Certification by Third-Party Entities.--The Secretary may
designate a third-party entity to carry out any function under
subsection (e)(5) of section 2103, subsection (b), (c), or (d)
of section 2104, or subsection (b)(1) of section 2105.
(b) Qualifications.--The Secretary shall establish standards
for the qualifications of third-party entities, including
knowledge of physical infrastructure protection, cybersecurity,
chemical facility security, hazard analysis, chemical process
engineering, chemical process safety reviews, and other such
factors that the Secretary determines to be necessary.
(c) Procedures and Requirements for Private Entities.--Before
designating a third-party entity to carry out a function under
subsection (a), the Secretary shall--
(1) develop, document, and update, as necessary,
minimum standard operating procedures and requirements
applicable to such entities designated under subsection
(a), including--
(A) conducting a 90-day independent review of
the procedures and requirements (or updates
thereto) and the results of the analyses of
such procedures (or updates thereto) pursuant
to subtitle G of title VIII; and
(B) upon completion of the independent review
under subparagraph (A), designating any
procedure or requirement (or any update
thereto) as a qualified anti-terrorism
technology pursuant to section 862(b);
(2) conduct safety and hazard analyses of the
standard operating procedures and requirements
developed under paragraph (1);
(3) conduct a review of the third-party entities'
business engagements to ensure that no conflict exists
that could compromise the execution of any functions
under subsection (e)(5) of section 2103, subsection
(b), (c), or (d) of section 2104, or subsection (c)(1)
of section 2105; and
(4) conduct a review of the third-party entities'
business practices and disqualify any of these
organizations that offer related auditing or consulting
services to chemical facilities as private sector
vendors.
(d) Ensuring Contracting with Certain Small Business
Concerns.--
(1) Requirements for prime contracts.--The Secretary
shall include in each contract awarded to a third-party
entity--
(A) a requirement that the third-party entity
develop and implement a plan for the award of
subcontracts, as appropriate, to small business
concerns and disadvantaged business concerns in
accordance with other applicable requirements,
including the terms of such plan, as
appropriate; and
(B) a requirement that the third-party entity
shall submit to the Secretary, during
performance of the contract, periodic reports
describing the extent to which the contractor
has complied with such plan, including
specification (by total dollar amount and by
percentage of the total dollar value of the
contract) of the value of subcontracts awarded
at all tiers of subcontracting to small
business concerns, including socially and
economically disadvantaged small businesses
concerns, small business concerns owned and
controlled by service-disabled veterans,
HUBZone small business concerns, small business
concerns eligible to be awarded contracts
pursuant to section 8(a) of the Small Business
Act (15 U.S.C. 637(a)), and historically black
colleges and universities and Hispanic-serving
institutions, tribal colleges and universities,
and other minority institutions.
(2) Definitions.--For purposes of this subsection:
(A) The terms ``socially and economically
disadvantaged small businesses concern'',
``small business concern owned and controlled
by service-disabled veterans'', and ``HUBZone
small business concern'' have the meaning given
such terms under the Small Business Act (15
U.S.C. 631 et seq.).
(B) The term ``historically black colleges
and universities'' means part B institutions
under title III of the Higher Education Act of
1965 (20 U.S.C. 1061).
(C) The term ``Hispanic-serving institution''
has the meaning given such term under title V
of the Higher Education Act of 1965 (20 U.S.C.
1101a(a)(5)).
(D) The term ``tribal colleges and
universities'' has the meaning given such term
under the Tribally Controlled College or
University Assistance Act of 1978 (25 U.S.C.
1801 et seq.)).
(3) Utilization of alliances.--The Secretary shall,
to the maximum extent practicable, seek to facilitate
the award of contracts to conduct certification under
subsection (a) to alliances of business concerns
referred to in paragraph (1)(B).
(4) Annual report.--
(A) In general.--By not later than October 31
of each year, the Secretary shall submit to the
Committee on Homeland Security of the House of
Representatives and the Committee on Homeland
Security and Governmental Affairs of the Senate
a report on the award of contracts to conduct
certification under subsection (a) to business
concerns referred to in paragraph (1)(B) during
the fiscal year preceding the fiscal year in
which the report is submitted.
(B) Contents.--The Secretary shall include in
each report under subparagraph (A)--
(i) a specification of the value of
such contracts, by dollar amount and as
a percentage of the total dollar value
of all contracts awarded by the
Department in such fiscal year;
(ii) a specification of the total
dollar value of such contracts awarded
to each of the categories of business
concerns referred to in paragraph
(1)(B); and
(iii) if the percentage of the total
dollar value of contracts awarded under
this section specified under clause (i)
is less than 25 percent, an explanation
of--
(I) why the percentage is
less than 25 percent; and
(II) what will be done to
ensure that the percentage for
the following fiscal year will
not be less than 25 percent.
(e) Technical Review and Approval.--Not later than 60 days
after the date on which the results of the safety and hazard
analysis of the standard operating procedures and requirements
are completed under subsection (c)(2), the Secretary shall--
(1) complete a technical review of the procedures and
requirements (or updates thereto) under sections 862(b)
and 863(d)(2); and
(2) approve or disapprove such procedures and
requirements (or updates thereto).
(f) Effect of Approval.--
(1) Issuance of certificate of conformance.--In
accordance with section 863(d)(3), the Secretary shall
issue a certificate of conformance to a third-party
entity to perform a function under subsection (a) if
the entity--
(A) demonstrates to the satisfaction of the
Secretary the ability to perform functions in
accordance with standard operating procedures
and requirements (or updates thereto) approved
by the Secretary under this section;
(B) agrees to--
(i) perform such function in
accordance with such standard operating
procedures and requirements (or updates
thereto); and
(ii) maintain liability insurance
coverage at policy limits and in
accordance with conditions to be
established by the Secretary pursuant
to section 864; and
(C) signs an agreement to protect the
proprietary and confidential information of any
chemical facility with respect to which the
entity will perform such function.
(2) Litigation and risk management protections.--A
third-party entity that maintains liability insurance
coverage at policy limits and in accordance with
conditions to be established by the Secretary pursuant
to section 864 and receives a certificate of
conformance under paragraph (1) shall receive all
applicable litigation and risk management protections
under sections 863 and 864.
(3) Reciprocal waiver of claims.--A reciprocal waiver
of claims shall be deemed to have been entered into
between a third-party entity that receives a
certificate of conformance under paragraph (1) and its
contractors, subcontractors, suppliers, vendors,
customers, and contractors and subcontractors of
customers involved in the use or operation of any
function performed by the third-party entity under
subparagraph (a).
(4) Information for establishing limits of liability
insurance.--A third-party entity seeking a certificate
of conformance under paragraph (1) shall provide to the
Secretary necessary information for establishing the
limits of liability insurance required to be maintained
by the entity under section 864(a).
(g) Monitoring.--The Secretary shall regularly monitor and
inspect the operations of a third-party entity that performs a
function under subsection (a) to ensure that the entity is
meeting the minimum standard operating procedures and
requirements established under subsection (c) and any other
applicable requirement under this section.
SEC. 2110. METHODS TO REDUCE THE CONSEQUENCES OF A TERRORIST ATTACK.
(a) Assessment Required.--The owner or operator of a covered
chemical facility shall include in the site security plan
conducted pursuant to section 2103, an assessment of methods to
reduce the consequences of a terrorist attack on that chemical
facility, including--
(1) a description of the methods to reduce the
consequences of a terrorist attack assessed by the
covered chemical facility;
(2) the degree to which each method to reduce the
consequences of a terrorist attack could, if applied,
reduce the potential extent of death, injury, or
serious adverse effects to human health resulting from
a terrorist release;
(3) the technical viability, costs, avoided costs
(including liabilities), savings, and applicability of
applying each method to reduce the consequences of a
terrorist attack; and
(4) any other information that the owner or operator
of the covered chemical facility considered in
conducting the assessment.
(b) Implementation.--
(1) Implementation.--The owner or operator of a
chemical facility assigned to a high-risk tier under
section 2102(c)(3) that is required to conduct an
assessment under subsection (a) shall implement methods
to reduce the consequences of a terrorist attack on the
chemical facility if the Secretary determines, based on
an assessment in subsection (a), that the
implementation of such methods at the facility--
(A) would significantly reduce the risk of
death, injury, or serious adverse effects to
human health resulting from a chemical facility
terrorist incident but would not increase the
interim storage of a substance of concern
outside the facility or directly result in the
creation of a new covered chemical facility
assigned to a high-risk tier under section
2102(c)(3) or the assignment of an existing
facility to a high-risk tier;
(B) can feasibly be incorporated into the
operation of the covered chemical facility; and
(C) would not significantly and demonstrably
impair the ability of the owner or operator of
the covered chemical facility to continue the
business of the facility at a location within
the United States.
(2) Review of inability to comply.--
(A) In general.--An owner or operator of a
covered chemical facility who is unable to
comply with the Secretary's determination under
paragraph (1) shall, within 60 days of receipt
of the Secretary's determination, provide to
the Secretary a written explanation that
includes the reasons thereto.
(B) Review.--Not later than 60 days of
receipt of an explanation submitted under
subparagraph (A), the Secretary after
consulting with the owner or operator who
submitted such explanation, shall provide to
the owner or operator a written determination
of whether implementation shall be required
pursuant to paragraph (1). If the Secretary
determines that implementation is required, the
facility shall be required to begin
implementation within 180 days of that
determination.
(c) Provision of Information on Alternative Approaches.--
(1) In general.--The Secretary shall provide
information to chemical facilities on the use and
availability of methods to reduce the consequences of a
terrorist attack at a covered chemical facility to aid
a covered chemical facility in meeting the requirements
of subsection (a).
(2) Information to be included.--The information
under paragraph (1) may include information about--
(A) general and specific types of such
methods;
(B) combinations of chemical sources,
substances of concern, and hazardous processes
or conditions for which such methods could be
appropriate;
(C) the availability of specific methods to
reduce the consequences of a terrorist attack;
(D) the costs and cost savings resulting from
the use of such methods;
(E) emerging technologies that could be
transferred from research models or prototypes
to practical applications;
(F) the availability of technical assistance
and best practices; and
(G) such other matters as the Secretary
determines is appropriate.
(3) Collection of information.--The Secretary may
collect information necessary to fulfill the
requirements of paragraph (1)--
(A) from information obtained from owners or
operators of chemical facilities pursuant to
this title, including those who have registered
such facilities pursuant to part 68 of title 40
Code of Federal Regulations (or successor
regulations);
(B) from studies and reports published by
academic institutions, National Laboratories,
and other relevant and reputable public and
private sector experts; and
(C) through such other methods as the
Secretary deems appropriate.
(4) Public availability.--Information made available
publicly under this subsection shall not identify any
specific chemical facility, violate the protection of
information provisions under section 2108, or disclose
any confidential or proprietary information.
(d) Protected Information.--An assessment prepared under
subsection (a) is protected information under section 2108(f).
(e) Funding for Methods to Reduce the Consequences of a
Terrorist Attack.--The Secretary shall make funds available to
help defray the cost of implementing methods to reduce the
consequences of a terrorist attack to covered chemical
facilities that are required by the Secretary to implement such
methods or that voluntarily choose to implement such methods.
In making such funds available, the Secretary shall give
special consideration to those facilities required by the
Secretary to implement methods to reduce the consequences of a
terrorist attack pursuant to subsection (b) and water and
wastewater facilities administered by State, local, tribal, or
municipal authorities that are subject to the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.) or section 1433
of the Safe Drinking Water Act (42 U.S.C. 300i-2).
(f) Publicly-Owned Water and Wastewater Treatment
Facilities.--Notwithstanding any other provision of this title,
the Secretary may not require a publicly-owned facility
regulated under the Safe Drinking Water Act (42 U.S.C. 300i-2)
or the Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.) to implement methods to reduce the consequences of a
terrorist attack under subsection (b) unless that facility
receives funding under subsection (e).
SEC. 2111. APPLICABILITY.
This title shall not apply to--
(1) any chemical facility that is owned and operated
by the Secretary of Defense, the Attorney General, or
the Secretary of Energy;
(2) the transportation in commerce, including
incidental storage, of any substance of concern
regulated as a hazardous material under chapter 51 of
title 49, United States Code; or
(3) any chemical facility that is owned or operated
by a licensee or certificate holder of the Nuclear
Regulatory Commission.
SEC. 2112. SAVINGS CLAUSE.
Nothing in this title shall affect or modify in any way any
obligation or liability of any person under any other Federal
law, including section 112 of the Clean Air Act (42 U.S.C.
7412), the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.), the Resource Conservation and Recovery Act of 1976
(42 U.S.C. 6901 et seq.), the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.), the Occupational Safety and
Health Act (29 U.S.C. 651 et seq.), the National Labor
Relations Act (29 U.S.C. 151 et seq.), the Emergency Planning
and Community Right to Know Act of 1996 (42 U.S.C. 11001 et
seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.),
the Maritime Transportation Security Act of 2002 (Pubic Law
107-295), and the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.).
SEC. 2113. OFFICE OF CHEMICAL FACILITY SECURITY.
(a) In General.--There is in the Department an Office of
Chemical Facility Security, headed by a Director, who shall be
a member of the Senior Executive Service in accordance with
subchapter VI of chapter 33 of title 5, United States Code,
under section 5382 of that title, and who shall be responsible
for carrying out the responsibilities of the Secretary under
this title.
(b) Professional Qualifications.--The individual selected by
the Secretary as the Director Office of Chemical Facility
Security should have a demonstrated knowledge of physical
infrastructure protection, cybersecurity, chemical facility
security, hazard analysis, chemical process engineering,
chemical process safety reviews, and other such factors that
the Secretary determines to be necessary.
(c) Selection Process.--The Secretary shall make a reasonable
effort to select an individual to serve as the Director from
among a group of candidates that is diverse with respect to
race, ethnicity, age, gender, and disability characteristics
and submit to the Committee on Homeland Security of the House
of Representatives and the Committee on Homeland Security and
Governmental Affairs of the Senate information on the selection
process, including details on efforts to assure diversity among
the candidates considered for this position.
SEC. 2114. SECURITY BACKGROUND CHECKS OF COVERED INDIVIDUALS AT CERTAIN
CHEMICAL FACILITIES.
(a) Regulations Issued by the Secretary.--
(1) In general.--The Secretary shall issue
regulations to require a covered chemical facility
assigned to a high-risk tier under section 2102(c)(3)
to subject covered individuals who have access to
restricted areas or critical assets or who are
determined to require security background checks under
risk-based guidance to security background checks based
on risk-based guidance. Such regulations shall set
forth--
(A) the scope of the security background
checks, including the types of disqualifying
offenses and the time period covered for each
covered individual;
(B) the processes to conduct the security
background checks;
(C) the necessary biographical information
and other data required in order to conduct the
security background checks; and
(D) a redress process for adversely-affected
covered individuals consistent with subsections
(b) and (c).
(2) Enforcement.--If the owner or operator of a
covered chemical facility that is subject to paragraph
(1) fails to comply with the requirements of that
paragraph, the Secretary may issue a penalty against
the owner or operator in accordance with section 2106.
(3) Requirement for redress process.--If a covered
chemical facility performs a security background check
on a covered individual to comply with regulations
issued by the Secretary under paragraph (1), the
Secretary shall not consider the facility in compliance
unless an adequate redress process as described in
subsection (c) is provided to covered individuals.
(b) Requirements.--Upon issuance of a final regulation under
subsection (a), or any future rule, regulation, directive or
guidance, by the Secretary regarding a security background
check of a covered individual, the Secretary shall prohibit the
covered chemical facility from making an adverse employment
decision, including removal or suspension of the employee, due
to such rule, regulation, directive, or guidance with respect
to a covered individual unless the covered individual--
(1) has been convicted of, has been found not guilty
of by reason of insanity of, or is under want, warrant,
or indictment for a permanent disqualifying criminal
offense listed in part 1572 of title 49, Code of
Federal Regulations;
(2) was convicted of or found not guilty by reason of
insanity of an interim disqualifying criminal offense
listed in part 1572 of title 49, Code of Federal
Regulations, within 7 years of the date on which the
chemical facility performs the security background
check;
(3) was incarcerated for an interim disqualifying
criminal offense listed in part 1572 of title 49, Code
of Federal Regulations, and released from incarceration
within 5 years of the date that the chemical facility
performs the security background check;
(4) is determined, as a result of the security
background check, to be a known terrorist or to have
terrorist ties; or
(5) is determined, as a result of the security
background check, not to be legally authorized to work
in the United States.
(c) Redress Process.--Upon the issuance of a final regulation
under subsection (a), or any future rule, regulation,
directive, or guidance, requiring a covered chemical facility
to perform a security background check of a covered individual,
the Secretary shall--
(1) require an adequate redress process for a covered
individual subjected to an adverse employment decision,
including removal or suspension of the employee, due to
such rule, regulation, directive, or guidance that is
consistent with the appeals and waiver processes
established for applicants for commercial motor vehicle
hazardous materials endorsements and transportation
workers at ports, as required by section 70105(c) of
title 46, United States Code, including all rights to
hearings before an administration law judge, scope of
review, a review of an unclassified summary of
classified evidence equivalent to the summary provided
in part 1515 of title 49, Code of Federal Regulations,
and procedures for new evidence for both appeals and
waiver decisions;
(2) have the authority to order an appropriate
remedy, including reinstatement of the covered
individual, should the Secretary determine that a
covered chemical facility wrongfully made an adverse
employment decision regarding a covered individual
pursuant to such rule, regulation, directive, or
guidance;
(3) ensure that the redress process required under
this subsection affords to the covered individual a
full disclosure of any public-record event covered by
subsection (b) that provides the basis for an adverse
employment decision; and
(4) ensure that covered individual receives the
individual's full wages and benefits until all appeals
and waiver procedures are exhausted.
(d) False Statements.--
(1) In general.--A covered chemical facility may not
knowingly misrepresent to an employee or other relevant
person, including an arbiter involved in a labor
arbitration, the scope, application, or meaning of any
rules, regulations, directives, or guidance issued by
the Secretary related to security background check
requirements for covered individuals when conducting a
security background check under this section.
(2) Deadline for regulations.--Not later than 1 year
after the date of enactment of the Chemical Facility
Anti-Terrorism Act of 2008, the Secretary shall issue a
regulation that prohibits a covered chemical facility
from knowingly misrepresenting to an employee or other
relevant person, including an arbiter involved in a
labor arbitration, the scope, application, or meaning
of any rules, regulations, directives, or guidance
issued by the Secretary related to security background
check requirements for covered individuals when
conducting a security background check.
(e) Restrictions on Use and Maintenance of Information.--
Information obtained under this section by the Secretary or a
covered chemical facility that is an employer of a covered
individual shall be handled as follows:
(1) Such information may not be made available to the
public.
(2) Such information may not be accessed by employees
of the facility except for such employees who are
directly involved with collecting the information or
conducting or evaluating security background checks.
(3) Such information shall be maintained
confidentially by facility and the Secretary and may be
used only for making determinations under this section.
(4) The Secretary may share such information with
other Federal law enforcement agencies.
(f) Rights and Responsibilities.--Nothing in the section
shall be construed to abridge any right or responsibility of a
covered individual or covered chemical facility under any other
Federal, State, local, or tribal law or collective bargaining
agreement.
(g) No Preemption of Federal or State Law.--Nothing in this
section shall be construed to preempt a Federal, State, local,
or tribal law that requires criminal history background checks,
checks on the authorization of an individual to work in the
United States, or other background checks of covered
individuals.
(h) Definition of Security Background Check.--The term
``security background check'' means a review at no cost to any
covered individual of the following for the purpose of
identifying individuals who may pose a threat to chemical
facility security, to national security, or of terrorism.
(1) Relevant databases to verify and validate
identity.
(2) Relevant criminal history databases.
(3) In the case of an alien (as defined in section
101 of the Immigration and Nationality Act (8 U.S.C.
1101(a)(3))), the relevant data bases to determine the
status of the alien under the immigration laws of the
United States.
(4) Relevant databases to identify terrorists or
people with known ties to terrorists.
(5) Other relevant information or data bases, as
determined by the Secretary.
(i) Included Individuals.--The Secretary shall require any
individual at a covered chemical facility or associated with a
covered chemical facility who is provided a copy of a security
vulnerability assessment or site security plan to be subjected
to a security background check.
(j) Savings Clause.--Nothing in this section shall be
construed as creating any new right or modifying any existing
right of an individual to appeal a determination by the
Secretary as a result of a check against a terrorist watch
list.
SEC. 2115. NATIONAL CHEMICAL SECURITY CENTER OF EXCELLENCE.
(a) Establishment.--
(1) In general.--The Secretary shall establish a
National Chemical Security Center of Excellence to
conduct research and education and to develop
technologies to lower the overall risk of terrorist
chemical attack, including technologies or practices to
decrease threats, vulnerabilities, and consequences in
order to ensure the security of chemical facilities.
(2) Additional requirements.--In establishing the
National Chemical Security Center of Excellence under
paragraph (1), or in reorganizing any other chemical,
biological, or agricultural Center of Excellence
established before the date of enactment of the
Chemical Facility Anti-Terrorism Act of 2008, the
Secretary shall--
(A) recognize the unique scientific,
technical, and funding requirements of the
chemical, biological, and agricultural fields
with respect to the mission of the Department
of Homeland Security; and
(B) maintain the National Chemical Security
Center of Excellence and any such other
chemical, biological, or agricultural Center of
Excellence as a distinct entity with respect to
organization and funding.
(b) Designation of Lead Institution.--The Secretary shall
select at least one of the institutions identified in
subsection (c) as the lead institution responsible for
coordinating the National Chemical Security Center of
Excellence. Any member institution that is part of the
consortium under subsection (c) may serve as a lead institution
for the Center.
(c) Member Institutions; Consortium.--
(1) Consortium.--The lead institution selected under
subsection (b) shall execute agreements with the other
institutions of higher education identified in this
subsection and other institutions designated by the
Secretary to develop a consortium to assist in
accomplishing the goals of the Center.
(2) Members.--The National Chemical Security Center
of Excellence shall consist of at least three
institutions of higher education with current expertise
or the capability to produce appropriate expertise,
including--
(A) one historically black college or
university; and
(B) one Hispanic-serving institution.
(3) Inclusions.--The Secretary shall ensure that an
appropriate number of any additional partner colleges
or universities designated by the Secretary under this
subsection are historically black colleges and
universities, Hispanic-serving institutions, and tribal
colleges and universities.
(4) Definitions.--For the purposes of this
subsection, the terms ``historically black colleges and
universities'', ``Hispanic-serving institutions'', and
``tribal colleges and universities'' have the meanings
given such terms under section 2109(d)(2).
SEC. 2116. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to the Secretary of
Homeland Security to carry out this title--
(1) $325,000,000 for fiscal year 2010, of which
$100,000,000 shall be made available to provide funding
for methods to reduce the consequences of a terrorist
attack pursuant to section 2110(e);
(2) $300,000,000 for fiscal year 2011, of which
$75,000,000 shall be made available to provide funding
for methods to reduce the consequences of a terrorist
attack pursuant to section 2110(e); and
(3) $275,000,000 for fiscal year 2012, of which
$50,000,000 shall be made available to provide funding
for methods to reduce the consequences of a terrorist
attack pursuant to section 2110(e).
----------
SECTION 550 OF THE DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT,
2007
[Sec. 550. (a) No later than six months after the date of
enactment of this Act, the Secretary of Homeland Security shall
issue interim final regulations establishing risk-based
performance standards for security of chemical facilities and
requiring vulnerability assessments and the development and
implementation of site security plans for chemical facilities:
Provided, That such regulations shall apply to chemical
facilities that, in the discretion of the Secretary, present
high levels of security risk: Provided further, That such
regulations shall permit each such facility, in developing and
implementing site security plans, to select layered security
measures that, in combination, appropriately address the
vulnerability assessment and the risk-based performance
standards for security for the facility: Provided further, That
the Secretary may not disapprove a site security plan submitted
under this section based on the presence or absence of a
particular security measure, but the Secretary may disapprove a
site security plan if the plan fails to satisfy the risk-based
performance standards established by this section: Provided
further, That the Secretary may approve alternative security
programs established by private sector entities, Federal,
State, or local authorities, or other applicable laws if the
Secretary determines that the requirements of such programs
meet the requirements of this section and the interim
regulations: Provided further, That the Secretary shall review
and approve each vulnerability assessment and site security
plan required under this section: Provided further, That the
Secretary shall not apply regulations issued pursuant to this
section to facilities regulated pursuant to the Maritime
Transportation Security Act of 2002, Public Law 107-295, as
amended; Public Water Systems, as defined by section 1401 of
the Safe Drinking Water Act, Public Law 93-523, as amended;
Treatment Works as defined in section 212 of the Federal Water
Pollution Control Act, Public Law 92-500, as amended; any
facility owned or operated by the Department of Defense or the
Department of Energy, or any facility subject to regulation by
the Nuclear Regulatory Commission.
[(b) Interim regulations issued under this section shall
apply until the effective date of interim or final regulations
promulgated under other laws that establish requirements and
standards referred to in subsection (a) and expressly supersede
this section: Provided, That the authority provided by this
section shall terminate three years after the date of enactment
of this Act.
[(c) Notwithstanding any other provision of law and
subsection (b), information developed under this section,
including vulnerability assessments, site security plans, and
other security related information, records, and documents
shall be given protections from public disclosure consistent
with similar information developed by chemical facilities
subject to regulation under section 70103 of title 46, United
States Code: Provided, That this subsection does not prohibit
the sharing of such information, as the Secretary deems
appropriate, with State and local government officials
possessing the necessary security clearances, including law
enforcement officials and first responders, for the purpose of
carrying out this section, provided that such information may
not be disclosed pursuant to any State or local law: Provided
further, That in any proceeding to enforce this section,
vulnerability assessments, site security plans, and other
information submitted to or obtained by the Secretary under
this section, and related vulnerability or security
information, shall be treated as if the information were
classified material.
[(d) Any person who violates an order issued under this
section shall be liable for a civil penalty under section
70119(a) of title 46, United States Code: Provided, That
nothing in this section confers upon any person except the
Secretary a right of action against an owner or operator of a
chemical facility to enforce any provision of this section.
[(e) The Secretary of Homeland Security shall audit and
inspect chemical facilities for the purposes of determining
compliance with the regulations issued pursuant to this
section.
[(f) Nothing in this section shall be construed to supersede,
amend, alter, or affect any Federal law that regulates the
manufacture, distribution in commerce, use, sale, other
treatment, or disposal of chemical substances or mixtures.
[(g) If the Secretary determines that a chemical facility is
not in compliance with this section, the Secretary shall
provide the owner or operator with written notification
(including a clear explanation of deficiencies in the
vulnerability assessment and site security plan) and
opportunity for consultation, and issue an order to comply by
such date as the Secretary determines to be appropriate under
the circumstances: Provided, That if the owner or operator
continues to be in noncompliance, the Secretary may issue an
order for the facility to cease operation, until the owner or
operator complies with the order.
[(h) This section shall not preclude or deny any right of any
State or political subdivision thereof to adopt or enforce any
regulation, requirement, or standard of performance with
respect to chemical facility security that is more stringent
than a regulation, requirement, or standard of performance
issued under this section, or otherwise impair any right or
jurisdiction of any State with respect to chemical facilities
within that State, unless there is an actual conflict between
this section and the law of that State.]
* * * * * * *
Minority, Additional, and Dissenting Views
minority views
Introduction
Securing our Nation's chemical facilities has long been a
priority for the Committee on Homeland Security (Committee).
During the 109th Congress, the Committee worked on a bipartisan
basis to develop comprehensive chemical facility security
legislation (H.R. 5695). This legislation, which was adopted by
the Committee by a vote of 16-2, was never considered by the
House, but became the basis for section 550 of the Department
of Homeland Security (DHS) Appropriations Act, 2007 (Public Law
109-295). Section 550 gave the Department historic authority to
regulate the security of high-risk chemical facilities.
Recognizing the importance of these facilities and the threat
facing them, section 550 included aggressive timelines and
serious penalties for non-compliance. However, section 550 also
included a three year sunset clause, ensuring Congress would
need to revisit the issue prior to October 2009. The DHS
Appropriations Act was signed into law on October 4, 2006, and
two months later DHS issued an advanced notice of proposed
rulemaking, exercising the new authority.
After receiving thousands of comments, DHS finalized the
Chemical Facility Anti-Terrorism Standards (CFATS), which
became effective on June 8, 2007. Appendix A, the list of
chemicals of interest that trigger the initial requirement to
submit information to DHS, remained open for comment for an
additional 30 days. After receiving over 4,000 additional
comments, DHS finalized Appendix A on November 20, 2007.
Facilities which have more than the screening threshold of a
chemical of interest had 60 days to submit initial information
to DHS through the ``Top-Screen.'' The ``Top-Screen'' provides
baseline data to DHS which allows the Secretary to determine
whether the facility will be further regulated. As of the
deadline of January 22, 2008, over 25,000 facilities submitted
information, with thousands of others seeking extensions. DHS
is in the process of reviewing this information and notifying
owners of next steps required. By the end of the year, hundreds
of tier I facilities - those chemical facilities which present
the highest risk - will have completed a security vulnerability
assessment and site security plan, and DHS will be in the
process of inspecting and verifying compliance with
implementation.
It is against this backdrop that the Committee considered
legislation to permanently enact the CFATS regulations.
Although the bill in some places takes into consideration the
current regulations, we remain concerned that significant
changes elsewhere in the bill would force DHS to rewrite the
current regulations. Such a result, Departmental witnesses have
testified, would put the current program on hold while the new
regulations were promulgated. Given the urgency with which
Congress acted in 2006 giving the Department this authority, we
do not believe that it is now timely to alter the program
significantly before it is fully implemented and further delay
meaningful chemical facility security. Even what may be
considered simple changes to requirements for security
vulnerability assessments or site security plans could require
a comprehensive change in the current tools being developed by
the Department to implement the regulations.
For example, the current regulations require that a
security vulnerability assessment assess ``hazards and
consequences of concern for the facility.'' However, the bill
requires that facilities assess ``any hazard'' that could
result from a terrorist incident. Interpreted strictly, a
facility would have to consider all possible down-stream
effects and potential liabilities of any terrorist attack
scenario - no matter how implausible. This would require a
major change in the structure of the vulnerability assessment
tool and the subsequent site security plans (which are required
by the bill to address the vulnerabilities identified in the
assessment). To clarify this, Representative Mark Souder
offered an amendment that would require the consideration of
hazards ``to the extent feasible'' as opposed to just ``any
hazard.'' This would have been more consistent with the current
regulatory language, while still requiring that hazards be
identified by the facility. Rather than exposing a well-meaning
chemical facility to possible penalties for inadvertently
violating the ``any hazard'' requirement, this amendment would
have recognized the pragmatic limitations of such language.
Unfortunately, the Majority rejected this opportunity.Other
requirements in the bill would have similar effects of halting
the on-going progress of the Department and chemical
facilities. In particular, requiring consideration and possible
implementation of ``inherently safer technology'' (IST), would
make current site security plans developed insufficient and any
implemented security measures inadequate.
Inherently Safer Technology
Section 550 of the DHS Appropriations Act, 2007,
specifically prohibited the Department from requiring
particular security measures. The goal was to provide a
flexible regulatory approach, where the security performance of
the facility was regulated, while the facility could choose
which security measures met the performance standards. This
recognized the variety of facilities that might be covered by
the regulations, from small ``mom and pop'' facilities, to
agricultural operations, to large international corporations,
to oil and natural gas refineries. Departing from this
performance-based approach, the bill includes provisions
mandating consideration of ``inherently safer technology'' and
in some cases allows the Secretary to mandate implementation.
Section 2110 of the bill includes a requirement that all
``covered chemical facilities'' consider the implementation of
``methods to reduce the consequences of a terrorist attack.''
As defined in the bill, a ``covered chemical facility'' is any
facility that the Secretary determines is of sufficient risk
based on the potential threat, the potential consequences, and
the facility's proximity to population centers (section
2102(c)). The Secretary bases this determination on information
submitted regarding substances of concern that are ``used,
stored, manufactured, processed or distributed'' at the
facility. The Department has estimated that under this bill,
``covered chemical facilities'' could include upwards of 10,000
facilities. This definition could include a wide range of
facilities at the Secretary's discretion - all of which would
be required to consider the implementation of ``methods to
reduce consequences of a terrorist attack.''
These ``methods'' are defined broadly to include ``input
substitution'', ``process redesign'', ``technology
modification'', and ``use of less hazardous substances.'' These
terms are common descriptions used for ``inherently safer
technology.'' As the definition implies, IST is not a
technology, it is a mindset that is incorporated at every stage
of the facility's operations. The Department has stated that
there is no good, agreed upon, definition for IST, and
regulating such a concept would be difficult at the very least,
and probably impossible to do objectively.
Under this section each of at least 10,000 facilities,
possibly more, would be required to consider 12, broad,
detailed, process changes or substitutions, and justify the
consideration of each to the Secretary, regardless of its level
of risk. The justification to the Secretary, for each method
considered, must include the degree to which the method can
reduce the consequences of a terrorist attack; any costs or
savings from applying each method; and ``any other
information'' considered during the assessment. Although the
Majority states that this assessment will not place a burden on
smaller facilities, it is hard to see how it could not. In
fact, the Majority's witness at the February 26 hearing on the
Committee print testified that the requirement that companies
put into writing and justify certain processes over others, is
a subjective and burdensome exercise in ``paperwork.''
The Majority rejected an amendment offered by
Representative Dan Lungren that would only require
consideration of IST by facilities in the high-risk tier, not
by all ``covered chemical facilities.'' This amendment not only
would have been more consistent with the risk-based approach
that this Committee has urged the Department to follow, but
also would have been consistent with a bipartisan agreement
reached in the 109th Congress during consideration of H.R. 5695
on the same issue. Rather than require all covered chemical
facilities justify in writing to the Department their
consideration of IST, Representative Lungren's amendment would
focus on those facilities that present the highest risk. The
blanket provision retained by the Majority by rejecting this
amendment may result in hours of lost work and thousands of
dollars spent on meeting the requirements for little or no
security benefit.
This amendment would also be more consistent with the
current regulations, which allow States to implement non-
conflicting regulations. The bill maintains this ``actual
conflict'' preemption standard, under which states (such as New
Jersey) would be able to implement their own requirements for
IST consideration, if they consider it appropriate. The Federal
regime, however, would remain risk-based, targeting limited
resources at the facilities that pose the greatest risk. In
rejecting this amendment, the Majority missed an opportunity to
significantly improve this bill and build a bipartisan
coalition of support.
Section 2110 also provides the Secretary the authority to
require a chemical facility implement IST, if certain factors
are met. Before requiring implementation, the Secretary must
find that IST would ``significantly reduce'' the consequences
of a terrorist attack; would not result in moving a facility to
the highest risk tier; can ``feasibly be incorporated''; and
would not ``significantly and demonstrably impair the ability
of the owner to continue the business of the facility.'' An
amendment by Representative Charles Dent, accepted by the
Majority, added to this last factor that the facility must be
able to continue business ``at a location within the United
States.'' We are pleased that this language was accepted,
ensuring that an IST mandate would not close down U.S.
facilities and push them overseas by making them less
competitive.
However, an amendment offered by Representative Mark Souder
was rejected by the Majority that would have improved this
section further. Representative Souder's amendment would
require the Secretary to also determine that there are no
security measures that can be implemented that would adequately
secure the facility. The result is that the Secretary could
only mandate IST as a last resort, when no other security
measures are sufficient. The goal of the legislation is to
provide for the security of chemical facilities. As such,
facilities should be given every opportunity to adequately
secure their facilities through traditional means, before the
Secretary can mandate that certain chemicals not be used or
certain processes be changed. This amendment would not have
reduced the overall level of security at the facility, and
would be consistent with the bill's supposed emphasis on
security. Instead, by rejecting Representative Souder's
amendment, the Majority leaves open the possibility that the
Secretary can require a costly change in chemicals, even if
traditional security measures would have resulted in equal
levels of security.
Finally, in an effort to address the potential impact of
this requirement on the Nation's ability to provide for the
National defense, Representative Souder offered an amendment
that would have provided an exemption from the IST mandate for
defense industrial base facilities. This amendment recognizes
that the defense industrial base includes chemical facilities
that supply the Armed Forces with munitions, weapons, and fuel.
While these facilities should be required to protect their
facilities through implementing a site security plan, the
Secretary should not be able to mandate certain chemicals not
be used. Given the ongoing Global War on Terrorism, facilities
must have the flexibility to use the most appropriate chemicals
necessary without unnecessary interference. Unfortunately, the
Majority rejected this opportunity to recognize the unique role
these facilities have in defending the Nation.
Security Background Checks
We are pleased that the bill includes provisions originally
offered by Representative Ginny Brown-Waite during Subcommittee
consideration of the bill regarding screening employees of
high-risk chemical facilities against the terrorist watch list
and immigration status databases. This language is intended to
provide the Secretary with the authority to receive necessary
information to screen employees at high risk chemical
facilities against the terrorist watch list. This authority is
similar to authority exercised by the Secretary with regards to
individuals who hold commercial driver licenses, rail and
public transportation workers, and maritime workers. We
recognize that the Secretary may not provide information to
employers regarding the outcome of the check, depending on the
classified nature of the database.
The bill creates an appeal and waivers process for security
background checks ``consistent'' with that provided for
applicants under the Transportation Worker Identification
Credential (TWIC). That language is intended to extend in scope
only to the immigration status check and the criminal history
check - not the check of the terrorist watch list. That intent
is consistent with the current scope of the TWIC program. To
clarify that intent, the bill includes an amendment offered by
Representative Paul Broun that clarifies that no new rights are
created, nor are any existing rights modified, as they pertain
to an individual's ability to appeal a determination of the
Secretary as a result of a check against the terrorist watch
list. Information in the terrorist watch list database is
highly classified, and no agency currently informs individuals
if their names flag against a watch list, nor are they provided
with an opportunity to appeal. DHS must have the discretion to
work with law enforcement to respond appropriately if a name
matches the watch list.
Peter T. King
Lamar Smith
Mark E. Souder
Tom Davis
Daniel E. Lungren
Mike Rogers
Michael T. McCaul
Ginny Brown-Waite
Gus Bilirakis
David Davis
Paul C. Broun
additional dissenting views of mike rogers
Non-Toxic Fuel Exemption
The foal of the chemical security legislation is to create
more secure chemical facilities. Section 2110, however, which
requires consideration and possibly implementation of
inherently safer technology, does not exempt users of non-toxic
fuels. Unintended consequences of this provision may include
severe financial losses and closure for some operations,
disruption of business, and the ironically potential for
increased chemical accidents.
With the bill's current language, propane users would have
to use and store less propane, or eliminate it altogether. Fuel
switching will not necessarily increase security, as propane, a
commonly-used fuel, is already among the safest, cleanest, and
least toxic forms of energy available. Because the bill would
require propane users to maintain smaller supplies on their
premises, transport of propane to these facilities would
increase. Thus, in an effort to make facilities safer, the
liability has simply been shifted to the Nation's roads and
rails. A supply bottleneck might also result, particularly in
the winter months when demand for fuel is high, and supply is
slowed by inclement weather. American agricultural and other
business operations may be negatively impacted in these cases.
The final version of this bill should contain an exemption
for a discreet subset of facilities, specifically, those that
sell or use non-toxic fuels for the purposes of heating,
cooking, agriculture, or motor fuel. This would enable users
and producers of relatively safe fuels like propane to continue
business operations that directly affect the livelihoods of
many thousands of people, and indirectly impact the entire
Nation's economic vitality.
Mike Rogers
additional and dissenting views of michael t. mccaul
Depleted Hydrocarbon Sub-Surface Geologic Formations
Insert at the appropriate place _
SEC. 2101. DEFINITIONS of the Committee print defines
the term `chemical facility' to include any ``(A) at
which a chemical is or may be used, stored,
manufactured, processed or distributed''. This broad
definition of a chemical facility would include
depleted hydrocarbon sub-surface geologic formations,
salt water aquifers and salt domes.
The vast majority of working natural gas storage, 86% in
fact, is in depleted hydrocarbon sub-surface geologic
formations. These are depleted oil and natural gas fields.
These formations are reachable only through surface facilities
The surface facilitates and equipment used to pump natural gas
back into the sub-surface formation is the same surface
facilities and equipment used to produce natural gas in the
first place. When underground stored natural gas is retrieved
it is ``produced'' a second time. If a sub-surface geologic
formation used to store gas is considered a ``chemical
facility'' then active oil and natural gas fields are
``chemical facilities'' too. The committee print does not
currently seek to regulate oil and natural gas fields as
chemical facilities when they are in production, but when they
are used to store natural gas they become regulated.
Surface facilities (pumps, injectors, compressors,
auxiliary tanks, Engine water coolers, etc) are regulated by
the Department of Transportation through the Pipeline and
Hazardous Materials Safety Administration (PHMSA) for safety.
Under 49 CFR 192.903, PHMSA regulates these facilities for safe
operation in proximity to populations areas (called high
consequences areas (HCA)) using the consequence methodology in
this regulation. The potential impact radius of an event in one
of these facilities is among the detailed, existing aspects of
PHMSA regulations produced under the Integrity Management Plan
rulemaking in 2003.
The Transportation Security Administration regulates the
same surface facilities, through which access to sub-surface
geologic formations is obtained, for security purposes. TSA
entered into a MOU with PHMSA in 2006. This MOU constitutes a
security annex to the umbrella MOA that is in force between the
Department of Homeland Security and the Department of
Transportation. The Annex establishes the shared and
cooperative framework through which TSA and PHMSA discharge
their obligations under the law for security and respectively
safety for these surface facilities.
TSA has previously reviewed the security assessments
prepared after September 11th for these surface facilities and
determined the security measures put in place by facility
owners/operators were satisfactory. TSA retains jurisdiction
over these surface facilities for security and has the
authority to increase security where it deems necessary and
appropriate under current law.
States in which sub-surface geologic formation storage
occurs for natural gas regulated the surface facilities'
injection techniques and standards for safe and secure process.
Effective Dates for selected examples of State Regulations for
Hydrocarbons Storage Caverns: Alabama Alabama State Oil and Gas
Board 400-6 (Gas) May 16, 2000; Kansas Kansas Administrative
Regulation 28-45 (Liquids and Gas 1984; Louisiana State Wide
Order 29-M (Liquids and Gas) July 20, 1977; Mississippi
Mississippi State Oil & Gas Board Rule 64 (Liquids and Gas)
February 19, 1992; New York 6 NYCRR, Part 559 (Liquids and Gas)
In Draft; Texas Railroad Commission Rules No. 95 (Liquids) and
No. 97 (Gas) January 1, 1994
The Minority considers sub-surface geologic formations,
salt water aquifers and salt domes to be adequately regulated
under current law by PHMSA, TSA and the states. Applying an
additional layer of federal regulation that is redundant within
even the Department of Homeland Security does not serve to
improve Homeland Security.
An additional later of redundant regulation will also harm
our economy on this case.
The United States currently suffers from too little sub-
surface geologic formation natural gas storage capacity. The
House Commerce Committee, among other notable entities that
include economists and natural gas market analysts, considers
the current lack of additional storage a significant factor in
concern over future shortfalls in supply that will negatively
impact our economy. States that have both high-demand
concentrations for natural gas for both industry and non-
commercial use are particularly vulnerable to the consequences
of growing likelihood of supply shortfalls from a lack of
storage capacity.
Michael T. McCaul