S 709
112th CONGRESS
1st Session
S. 709
To enhance the security of chemical facilities and for other
purposes.
IN THE SENATE OF THE UNITED STATES
March 31, 2011
Mr. LAUTENBERG (for himself and Mr. MENENDEZ) introduced the following
bill; which was read twice and referred to the Committee on Homeland
Security and Governmental Affairs
A BILL
To enhance the security of chemical facilities and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Secure Chemical Facilities Act'.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings- Congress finds the following:
(1) The chemical sector of the United States represents a target that
terrorists could exploit to cause consequences, including death, injury,
or serious adverse effects to human health, the environment, critical
infrastructure, public health, homeland security, national security,
and the national economy.
(2) Chemical facilities that pose such potential consequences and
that are vulnerable to terrorist attacks must be protected.
(3) The Secretary of Homeland Security has statutory authority under
section 550 of the Department of Homeland Security Appropriations
Act, 2007 (6 U.S.C. 121 note) to regulate the security practices at
chemical facilities that are at significant risk of being terrorist
targets.
(4) The Secretary of Homeland Security issued interim final regulations
entitled the `Chemical Facility Anti-Terrorism Standards', which became
effective on June 8, 2007.
(b) Purpose- The purpose of this Act is to modify and make permanent
the authority of the Secretary of Homeland Security to regulate security
practices at chemical facilities.
SEC. 3. EXTENSION, MODIFICATION, AND RECODIFICATION OF AUTHORITY OF
SECRETARY OF HOMELAND SECURITY TO REGULATE SECURITY PRACTICES AT CHEMICAL
FACILITIES.
(a) In General- The Homeland Security Act of 2002 (6 U.S.C. 101 et seq.)
is amended by adding at the end the following:
`TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES
`SEC. 2101. DEFINITIONS.
`(1) ACADEMIC LABORATORY- The term `academic laboratory' means a facility
or area owned by an institution of higher education (as defined under
section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001))
or a nonprofit research institute or teaching hospital that has a
formal affiliation with an institution of higher education, including
photo laboratories, art studios, field laboratories, research farms,
chemical stockrooms, and preparatory laboratories, where relatively
small quantities of chemicals and other substances, as determined
by the Secretary, are--
`(A) used on a nonproduction basis for--
`(iii) diagnostic purposes; and
`(B) stored and used in containers that are typically manipulated
by 1 person.
`(2) CHEMICAL FACILITY- The term `chemical facility' means any facility--
`(A) at which the owner or operator of the facility possesses or
plans to possess a substance of concern; or
`(B) that meets other risk-related criteria identified by the Secretary.
`(3) CHEMICAL FACILITY SECURITY PERFORMANCE STANDARDS- The term `chemical
facility security performance standards' means risk-based standards
established by the Secretary under section 2103(c).
`(4) CHEMICAL FACILITY TERRORIST INCIDENT- The term `chemical facility
terrorist incident' means any act or attempted act of terrorism or
terrorist incident committed at, near, or against a chemical facility,
including such an act that involves--
`(A) the release of a substance of concern from a chemical facility;
`(B) the theft, misappropriation, or misuse of a substance of concern
from a chemical facility; or
`(C) the sabotage of a chemical facility or a substance of concern
at a chemical facility.
`(5) COVERED CHEMICAL FACILITY- The term `covered chemical facility'
means a chemical facility that the Secretary determines meets the
criteria under section 2102(b)(1).
`(6) COVERED INDIVIDUAL- 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 covered chemical facility pursuant to the contract.
`(7) EMPLOYEE REPRESENTATIVE- The term `employee representative' means
the representative of a certified or recognized bargaining agent engaged
in a collective bargaining relationship with the owner or operator
of a chemical facility.
`(8) ENVIRONMENT- 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).
`(9) METHOD TO REDUCE THE CONSEQUENCES OF A TERRORIST ATTACK- The
term `method to reduce the consequences of a terrorist attack' means
a measure used at a chemical facility that reduces or eliminates the
potential consequences of a chemical facility terrorist incident,
including--
`(A) the elimination or reduction in the amount of a substance of
concern possessed or planned to be possessed by an owner or operator
of a covered chemical facility through the use of alternate substances,
formulations, or processes;
`(B) the modification of pressures, temperatures, or concentrations
of a substance of concern; and
`(C) the reduction or elimination of onsite handling of a substance
of concern through improvement of inventory control or chemical
use efficiency.
`(10) OWNER OR OPERATOR- The term `owner or operator' with respect
to a facility means--
`(A) the person who owns the facility;
`(B) the person who has responsibility for daily operation of the
facility; and
`(C) the person who leases the facility.
`(11) PERSON- The term `person'--
`(A) means an individual, trust, firm, joint stock company, corporation
(including a government corporation), partnership, association,
State, municipality, commission, political subdivision of a State,
or interstate body; and
`(B) includes each department, agency, or instrumentality of the
United States.
`(12) PROTECTED INFORMATION-
`(A) IN GENERAL- The term `protected information' includes--
`(i) security vulnerability assessments and site security plans,
including any assessment required under section 2111;
`(ii) portions of the following documents, records, orders, notices,
or letters that the Secretary has determined by regulation would
be detrimental to chemical facility security if disclosed and
that are developed by the Secretary or the owner or operator of
a covered chemical facility for the purposes of this title--
`(I) documents directly related to the review and approval or
disapproval of a security vulnerability assessment or site security
plan under this title by the Secretary;
`(II) documents directly related to an inspection or audit under
this title;
`(III) an order, notice, or letter regarding the compliance
of a covered chemical facility with this title;
`(IV) information or a document or record required to be provided
to or created by the Secretary under subsection (b) or (c) of
section 2102; and
`(V) a document directly related to a security drill or training
exercise, security threat or breach of security, or maintenance,
calibration, or testing of security equipment; and
`(iii) any other information, document, or record developed exclusively
for the purposes of this title that the Secretary has determined,
by rule, would, if disclosed, be detrimental to chemical facility
security.
`(B) EXCLUSIONS- The term `protected information' does not include--
`(i) information, other than a security vulnerability assessment
or site security plan, that the Secretary has determined, by rule,
to be--
`(I) appropriate to describe compliance by a chemical facility
with this title and the implementation of this title by the
Secretary; and
`(II) not detrimental to chemical facility security if disclosed;
or
`(ii) information, whether or not also contained in a security
vulnerability assessment, site security plan, or in a document,
record, order, notice, or letter, or portion thereof, described
in clause (ii) or (iii) of subparagraph (A), that is obtained
from another source with respect to which the Secretary has not
made a determination under either clause, including--
`(I) information that is required to be made publicly available
under any other provision of law; and
`(II) information that a chemical facility has lawfully disclosed
other than in a submission to the Secretary under this title.
`(13) RELEASE- The term `release' means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment (including the abandonment
or discarding of barrels, containers, and other closed receptacles
containing any hazardous substance or pollutant or contaminant).
`(14) SECURITY VULNERABILITY ASSESSMENT- The term `security vulnerability
assessment' means an assessment described in section 2103(a)(1)(B)(i).
`(15) SITE SECURITY PLAN- The term `site security plan' means a plan
described in section 2103(a)(1)(B)(ii).
`(16) SUBSTANCE OF CONCERN- The term `substance of concern' means
a chemical substance in quantity and form that is designated by the
Secretary under section 2102(a).
`SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF CHEMICAL FACILITIES.
`(a) Substances of Concern-
`(1) DESIGNATION BY THE SECRETARY- The Secretary may--
`(A) designate any chemical substance as a substance of concern;
and
`(B) establish and adjust the threshold quantity for each chemical
substance designated under subparagraph (A).
`(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, public health, homeland
security, national security, and the national economy that could result
from a chemical facility terrorist incident involving the chemical
substance.
`(b) List of Covered Chemical Facilities-
`(1) CRITERIA FOR LIST OF FACILITIES- The Secretary may designate
a chemical facility as a covered chemical facility if the Secretary
determines the chemical facility is a sufficient security risk based
on--
`(A) the potential threat or likelihood that the chemical facility
will be a 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,
public health, homeland security, national security, or the national
economy that could result from a chemical facility terrorist incident
at the chemical facility; and
`(C) the proximity of the chemical facility to large population
centers.
`(2) LIST- The Secretary shall maintain a list of covered chemical
facilities that the Secretary designates under subparagraph (A).
`(3) SUBMISSION OF INFORMATION- In making a determination whether
to designate a chemical facility as a covered chemical facility under
paragraph (1), the Secretary may require the submission of information
from an owner or operator of a chemical facility with respect to the
quantities of substances of concern that the owner or operator possesses
or plans to possess.
`(c) Assignment of Covered Chemical Facilities to Risk-Based Tiers-
`(1) ASSIGNMENT- The Secretary shall assign each covered chemical
facility to 1 of 4 risk-based tiers, as established by the Secretary,
with tier 1 representing the highest degree of risk and tier 4 representing
the lowest degree of risk.
`(2) PROVISION OF INFORMATION- The owner or operator of a covered
chemical facility shall provide, at the request of the Secretary,
any information in addition to information required by the Secretary
under subsection (b)(3) that may be necessary for the Secretary to
assign the chemical facility to the appropriate tier under paragraph
(1).
`(A) IN GENERAL- 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 of a covered chemical facility under paragraph
(1), the Secretary shall notify the owner or operator of the chemical
facility of the determination or change.
`(B) REQUIRED INFORMATION- A notification made by the Secretary
under subparagraph (A) shall include--
`(i) the reason for the determination or change described in subparagraph
(A); and
`(ii) upon the request of the owner or operator of a 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 relating to why the covered chemical facility
is considered critical; and
`(III) the proximity or interrelationship of the covered chemical
facility to other critical infrastructure.
`(d) Requirement for Review- The Secretary--
`(1) shall periodically review--
`(A) the designation of a chemical substance as a substance of concern
and the threshold quantity for the substance under subsection (a)(1);
and
`(B) whether a chemical facility meets the criteria under subsection
(b)(1); and
`(2) may, at any time, determine whether a chemical facility is a
covered chemical facility or change the tier to which the covered
chemical facility is assigned under subsection (c)(1).
`(e) Provision of Threat-Related Information- The Secretary shall provide
to the owner or operator or security officer of a covered chemical facility
threat information relating to probable threats to the covered chemical
facility and methods that could be used in a chemical facility terrorist
incident in order to assist the owner or operator in effectively assessing
the vulnerabilities to the covered chemical facility.
`SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND SITE SECURITY PLANS.
`(1) REQUIREMENT- The Secretary shall--
`(A) establish standards, protocols, and procedures for security
vulnerability assessments and site security plans required for covered
chemical facilities under this paragraph;
`(B) require the owner or operator of each covered chemical facility
to--
`(i) conduct and submit to the Secretary an assessment of the
vulnerability of the covered chemical facility to a range of chemical
facility terrorist incidents, including an incident that results
in a worst-case release of a substance of concern;
`(ii) prepare, implement, and submit to the Secretary a site security
plan for the covered chemical facility that addresses the security
vulnerability assessment and meets the risk-based chemical security
performance standards established under subsection (c);
`(iii) in developing the security vulnerability assessment and
site security plan, include participation by--
`(I) not less than 1 supervisory employee of the covered chemical
facility;
`(II) not less than 1 nonsupervisory employee of the covered
chemical facility; and
`(III) not less than 1 employee representative from each bargaining
agent at the covered chemical facility, if any; and
`(iv) include, with the submission of the security vulnerability
assessment and the site security plan of the covered chemical
facility, a signed statement by the owner or operator of the covered
chemical facility that certifies that the submission is provided
to the Secretary with knowledge of the possible penalties under
section 2107;
`(C) set deadlines, by tier, for the completion of security vulnerability
assessments and site security plans;
`(D) upon request, as necessary, and to the extent that resources
permit, provide technical assistance to a covered chemical facility
conducting a security vulnerability assessment or site security
plan;
`(E) establish specific deadlines and requirements for the submission
by a covered chemical facility of information describing--
`(i) any change in the use by the covered chemical facility of
more than a threshold amount of any substance of concern that
may affect the requirements of the covered chemical facility under
this title; or
`(ii) any material modification to the operations or site of the
covered chemical facility that may affect the security vulnerability
assessment or site security plan submitted by the covered chemical
facility;
`(F) require the owner or operator of a covered chemical facility
to review and resubmit a security vulnerability assessment or site
security plan not less frequently than once every 5 years;
`(G) not later than 180 days after the date on which the Secretary
receives a security vulnerability assessment or site security plan
under this paragraph--
`(i) review and approve or disapprove the security vulnerability
assessment or site security plan; and
`(ii) notify the covered chemical facility of the approval or
disapproval; and
`(H) establish, as appropriate, modified or separate standards,
protocols, and procedures for security vulnerability assessments
and site security plans for covered chemical facilities that are
also academic laboratories.
`(2) INHERENTLY GOVERNMENTAL FUNCTION- The approval or disapproval
of a security vulnerability assessment or site security plan by the
Secretary under this section is an inherently governmental function.
`(b) Participation in Preparation of Security Vulnerability Assessments
or Site Security Plans- Any person selected by the owner or operator
of a covered chemical facility or by a certified or recognized bargaining
agent of a covered chemical facility to participate in the development
of the security vulnerability assessment or site security plan for the
covered chemical facility shall be permitted to participate if the person
possesses knowledge, experience, training, or education relevant to
the portion of the security vulnerability assessment or site security
plan on which the person is participating.
`(c) Chemical Facility Security Performance Standards- The Secretary
shall establish risk-based performance standards to ensure or enhance
the security of a covered chemical facility against a chemical facility
terrorist incident that are designed to address--
`(1) restricting the area perimeter of the covered chemical facility;
`(2) securing site assets;
`(3) screening and controlling access to the covered chemical facility
and to restricted areas within the covered chemical facility by screening
or inspecting individuals and vehicles as they enter, including--
`(A) 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 covered chemical facility; and
`(B) measures implementing a regularly updated identification system
that checks the identification of covered chemical facility personnel
and other persons seeking access to the covered chemical facility
and that discourages abuse through established disciplinary measures;
`(4) 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--
`(A) deter vehicles from penetrating the perimeter of the covered
chemical facility, gaining unauthorized access to restricted areas,
or otherwise presenting a hazard to potentially critical targets;
`(B) deter chemical facility terrorist incidents through visible,
professional, well-maintained security measures and systems, including--
`(iii) barriers and barricades; and
`(iv) hardened or reduced value targets;
`(C) detect chemical facility terrorist incidents at early stages
through--
`(i) counter-surveillance at the site of the covered chemical
facility;
`(ii) frustration of opportunity to observe potential targets;
`(iii) site surveillance and sensing systems; and
`(iv) barriers and barricades; and
`(D) delay a chemical facility terrorist incident for a sufficient
period of time so as to allow appropriate response through--
`(i) onsite security response;
`(ii) barriers and barricades;
`(iii) hardened targets; and
`(iv) well-coordinated response planning;
`(5) securing and monitoring the shipping, receipt, and storage of
a substance of concern for the covered chemical facility;
`(6) deterring theft or diversion of a substance of concern;
`(7) deterring insider sabotage;
`(8) deterring cyber sabotage, including by preventing unauthorized
onsite or remote access to critical process controls, including--
`(A) supervisory control and data acquisition systems;
`(B) distributed control systems;
`(C) process control systems;
`(D) industrial control systems;
`(E) critical business systems; and
`(F) other sensitive computerized systems;
`(9) developing and conducting exercises of an internal emergency
plan for owners, operators, and covered individuals for a covered
chemical facility for responding to chemical facility terrorist incidents
at the covered chemical facility, including providing appropriate
information to any local emergency planning committee, State emergency
response commission, local law enforcement officials, and emergency
response providers to ensure an effective, collective response to
terrorist incidents;
`(10) maintaining effective monitoring, communications, and warning
systems, including--
`(A) measures designed to ensure that security systems and equipment
are in good working order and inspected, tested, calibrated, and
otherwise maintained;
`(B) measures designed to regularly test security systems, note
deficiencies, correct for detected deficiencies, and record results
so that the results are available for inspection by the Secretary;
and
`(C) measures to allow the chemical facility to promptly identify
and respond to security system and equipment failures or malfunctions;
`(11) ensuring mandatory annual security training, exercises, and
drills of covered chemical facility personnel appropriate to their
roles, responsibilities, and access to a substance of concern, including
participation by local law enforcement agencies, and local emergency
response providers, and appropriate supervisory and non-supervisory
facility employees and employee representatives, if any;
`(12) 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 covered
chemical facility personnel, including permanent and part-time personnel,
temporary personnel, and contract personnel, including--
`(A) measures designed to verify and validate identity;
`(B) measures designed to check criminal history;
`(C) measures designed to verify and validate legal authorization
to work; and
`(D) measures designed to identify individuals with terrorist ties;
`(13) escalating the level of protective measures for periods of elevated
threat;
`(14) specific threats, vulnerabilities, or risks identified by the
Secretary for the covered chemical facility;
`(15) reporting of significant security incidents to the Secretary
and to appropriate local law enforcement officials;
`(16) identifying, investigating, reporting, and maintaining records
of significant security incidents and suspicious activities at or
near the covered chemical facility;
`(17) establishing 1 or more officials and an organization responsible
for--
`(B) compliance with the standards established under this subsection;
`(C) serving as the point of contact for incident management purposes
with Federal agencies, agencies of State or local government (including
law enforcement agencies), and emergency response providers; and
`(D) coordination with Federal agencies, agencies of State or local
government (including law enforcement agencies), and emergency response
providers regarding plans and security measures for the collective
response to a chemical facility terrorist incident;
`(18) maintaining appropriate records relating to the security of
the covered chemical facility, including a copy of the most recent
security vulnerability assessment and site security plan, at the covered
chemical facility;
`(19) assessing and, as appropriate, using methods to reduce the consequences
of a terrorist attack;
`(20) methods to recover or mitigate the release of a substance of
concern in the event of a chemical facility terrorist incident;
`(21) methods to mitigate the risks of exposure to chemical agents
by maintaining an adequate supply of equipment and products to provide
for decontamination procedures designed to neutralize the chemical
agents; and
`(22) any additional security performance standards the Secretary
may specify.
`(d) 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 submitted by covered chemical facilities under subsection (a).
`(2) REQUIREMENTS- In establishing the risk-based chemical security
performance standards under paragraph (1), the Secretary shall--
`(A) require separate and, as appropriate, 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 that submits 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.
`(e) Collocated Chemical Facilities- The Secretary may allow an owner
or operator of a covered chemical facility that is located geographically
close, as determined by the Secretary, to another covered chemical facility
to develop and implement coordinated security vulnerability assessments
and site security plans.
`(f) Alternate Security Programs as Component of Security Vulnerability
Assessment and Site Security Plan-
`(1) ACCEPTANCE OF PROGRAM- At the request of an owner or operator
of a covered chemical facility, the Secretary may accept an alternate
security program submitted by the owner or operator as a component
of the security vulnerability assessment or site security plan required
under this section, if the Secretary determines that the alternate
security program, in combination with other components of the security
vulnerability assessment and site security plan submitted by the owner
or operator of the covered chemical facility--
`(A) meets the requirements under this title and the regulations
promulgated under this title;
`(B) provides the level of security that is equivalent to the level
of security required under this title and the regulations promulgated
under this title; and
`(C) includes employee participation as required under subsection
(a)(1)(B)(iii).
`(2) SECRETARIAL REVIEW REQUIRED- Nothing in this subsection shall
relieve the Secretary of the obligation to--
`(A) review a security vulnerability assessment or site security
plan submitted by a covered chemical facility under this section;
and
`(B) approve or disapprove the security vulnerability assessment
or site security plan on an individual basis according to the deadlines
established under subsection (a).
`(3) OBLIGATIONS OF COVERED CHEMICAL FACILITY UNAFFECTED- Nothing
in this subsection shall relieve a covered chemical facility of the
obligation and responsibility to comply with any requirement under
this title.
`(4) PERSONNEL SURETY ALTERNATE SECURITY PROGRAM- Upon application
from a nonprofit personnel surety accrediting organization acting
on behalf of, and with written authorization from, the owner or operator
of a covered chemical facility, the Secretary may accept a personnel
surety alternate security program that--
`(A) meets the requirements of section 2115; and
`(B) provides for a background check process that is--
`(i) expedited, affordable, reliable, and accurate;
`(ii) fully protective of the rights of covered individuals through
procedures that are consistent with the privacy protections available
under the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
and
`(iii) a single background check consistent with a risk-based
tiered program.
`(1) REGULATION OF MARITIME FACILITIES-
`(A) RISK-BASED TIERING- The owner or operator of a chemical facility
required to submit a facility security plan under section 70103(c)
of title 46, United States Code, shall be required to submit information
to the Secretary necessary to--
`(i) determine whether to designate the chemical facility as a
covered chemical facility; and
`(ii) assign the chemical facility to a risk-based tier under
section 2102 of this title.
`(B) ADDITIONAL MEASURES- Subject to subparagraph (C), in the case
of a facility for which a facility security plan is required to
be submitted under section 70103(c) of title 46, United States Code,
that is designated as a covered chemical facility, the Commandant
of the Coast Guard, after consultation with the Secretary, shall
require the owner or operator of the facility to update the security
vulnerability assessments and facility security plans required under
section 70103(c) of title 46, United States Code, if necessary,
to ensure a level of security for substances of concern that is
equivalent to the level of security required by regulations promulgated
under this title, including the requirements under section 2111,
in the same manner as other covered chemical facilities in this
title.
`(i) EXCEPTION- The owner or operator of a covered chemical facility
that has a facility security plan approved under section 70103(c)
of title 46, United States Code, shall not be required to update
or amend the facility security plan in order to meet the requirements
under section 2115 of this title.
`(ii) EQUIVALENT ACCESS- An individual described in section 2115(b)(1)(B)
who has been granted access to restricted areas or critical assets
by the owner or operator of a facility for which a facility security
plan is required to be submitted under section 70103(c) of title
46, United States Code, may be considered by the owner or operator
to have satisfied the requirement for passing a security background
check required under section 2115 for purposes of granting the
individual access to restricted areas or critical assets of a
covered chemical facility that is owned or operated by the same
owner or operator.
`(D) INFORMATION SHARING AND PROTECTION- Notwithstanding section
70103(d) of title 46, United States Code, the Commandant of the
Coast Guard, after consultation with the Secretary, shall apply
the information sharing and protection requirements in section 2110
of this title to a facility described in subparagraph (B).
`(E) ENFORCEMENT- The Secretary shall establish, by rule, procedures
to ensure that an owner or operator of a covered chemical facility
that is required to update the security vulnerability assessment
and facility security plan for the covered chemical facility under
subparagraph (B) is in compliance with this title.
`(F) FORMAL AGREEMENT- The Secretary shall--
`(i) require the Office of Infrastructure Protection and the Coast
Guard to enter into a formal agreement detailing the respective
roles and responsibilities of the Office of Infrastructure Protection
and the Coast Guard in carrying out this title, which shall ensure
that the enforcement and compliance requirements under this title
and section 70103 of title 46, United States Code, are not conflicting
or duplicative; and
`(ii) designate the agency responsible for enforcing this title
with respect to covered chemical facilities for which facility
security plans are required to be submitted under section 70103(c)
of title 46, United States Code, consistent with the requirements
of subparagraphs (B) and (D).
`(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.
`(1) DESCRIPTION OF ROLE REQUIRED- A site security plan for an owner
or operator of a covered chemical facility shall describe the roles
or responsibilities that covered individuals are expected to perform
to deter or respond to a chemical facility terrorist incident.
`(2) ANNUAL TRAINING FOR EMPLOYEES-
`(A) IN GENERAL- The owner or operator of a covered chemical facility
shall annually provide each covered individual with a role or responsibility
referred to in paragraph (1) at the covered chemical facility with
not less than 8 hours of training.
`(B) REQUIREMENTS- The training required under subparagraph (A)
shall, as relevant to the role or responsibility of the covered
individual--
`(i) include an identification and discussion of substances of
concern;
`(ii) include a discussion of possible consequences of a chemical
facility terrorist incident;
`(iii) review and include exercises of the site security plan
of the covered chemical facility, including any requirements for
differing threat levels;
`(iv) include a review of information protection requirements;
`(v) include a discussion of physical and cyber security equipment,
systems, and methods used to achieve chemical security performance
standards;
`(vi) allow training with other relevant participants, including
Federal employees, employees of a State or local government, and
emergency response providers, where appropriate;
`(vii) use national voluntary consensus standards, chosen jointly
with employee representatives, if any;
`(viii) allow instruction through government training programs,
chemical facilities, academic institutions, nonprofit organizations,
industry and private organizations, employee organizations, and
other relevant entities that provide such training;
`(ix) use multiple training media and methods;
`(x) include a discussion of appropriate emergency response procedures,
including procedures to mitigate the effects of a chemical facility
terrorist incident; and
`(xi) include review and discussion of methods to reduce the consequences
of a terrorist attack that are applicable to the covered chemical
facility.
`(3) EQUIVALENT TRAINING- An owner or operator of a covered chemical
facility may satisfy the training requirement described in clause
(i), (ii), (iii), (iv), (v), or (x) of subparagraph (2)(B) for a covered
individual with roles or responsibilities under paragraph (1) through
training that the owner or operator certifies is equivalent, in a
manner prescribed by the Secretary.
`(4) WORKER TRAINING GRANT PROGRAM-
`(A) AUTHORITY- The Secretary may make grants to, and enter into
cooperative agreements with, eligible entities to provide for the
training and education of--
`(i) covered individuals with roles or responsibilities described
in paragraph (1); and
`(ii) emergency response providers who would respond to a chemical
facility terrorist incident.
`(B) ADMINISTRATION- The Secretary shall seek to enter into an agreement
with the Director of the National Institute for Environmental Health
Sciences, or with the head of another Federal or State agency, to
make and administer grants or cooperative agreements under this
paragraph.
`(C) USE OF FUNDS- Amounts provided under this paragraph shall be
used to provide for the training and education of covered individuals
with roles or responsibilities described in paragraph (1) and emergency
response providers, including--
`(i) the annual mandatory training specified in paragraph (2);
and
`(ii) other appropriate training to protect nearby persons, property,
critical infrastructure, or the environment from the effects of
a chemical facility terrorist incident.
`(D) ELIGIBLE ENTITIES- In this paragraph, the term `eligible entity'
means a nonprofit organization with demonstrated experience in implementing
and operating successful health and safety or security training
programs for employees or emergency response providers.
`(E) PRESUMPTION OF CONGRESS RELATING TO COMPETITIVE PROCEDURES-
`(i) PRESUMPTION- It is the presumption of Congress that grants
awarded under this paragraph will be awarded using competitive
procedures based on merit.
`(ii) REPORT TO CONGRESS- If the Secretary awards grants under
this paragraph without using competitive procedures, the Secretary
shall submit to Congress a report explaining why competitive procedures
were not used.
`(i) State, Regional, or Local Governmental Entities- A covered chemical
facility may not be required under the law of a State or local government
to provide a security vulnerability assessment or site security plan
to any entity of a State, regional government, or local government entity
solely based on the requirement under subsection (a) that the covered
chemical facility submit a security vulnerability assessment or site
security plan to the Secretary.
`SEC. 2104. SITE INSPECTIONS.
`(a) Right of Entry- For purposes of carrying out this title, 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.
`(b) Inspections and Verifications-
`(1) IN GENERAL- The Secretary shall, at such time and place as the
Secretary determines to be reasonable and appropriate, conduct security
inspections and verifications of a covered chemical facility.
`(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 an inspection
or verification under paragraph (1), the Secretary shall have access
to the owners, operators, employees, and employee representatives,
if any, of a covered chemical facility.
`(c) Unannounced Inspections-
`(1) IN GENERAL- In addition to any inspection conducted under subsection
(b), the Secretary shall conduct unannounced facility inspections
of covered chemical facilities assigned to tier 1 or tier 2 under
section 2102(c)(1).
`(2) REQUIREMENTS- The inspections required under this subsection
shall be--
`(A) conducted without prior notice to the owner, operator, or any
employee of the covered chemical facility;
`(B) designed to evaluate at the covered chemical facility undergoing
inspection--
`(i) the ability of the covered chemical facility to prevent a
chemical facility terrorist incident that the site security plan
of the covered chemical facility is intended to prevent;
`(ii) the ability of the covered chemical facility to protect
against security threats that are required to be addressed by
the site security plan of the covered chemical facility; and
`(iii) any weaknesses in the site security plan of the covered
chemical facility;
`(C) conducted so as not to affect the actual security, physical
integrity, safety, or regular operations of the covered chemical
facility or the employees of the covered chemical facility while
the inspection is conducted; and
`(i) every 2 years in the case of a covered chemical facility
assigned to tier 1; and
`(ii) every 4 years in the case of a covered chemical facility
assigned to tier 2.
`(d) Chemical Facility Inspectors Authorized- During fiscal years 2012
and 2013, and subject to the availability of appropriations, the Secretary
shall increase by not less than 100 the total number of chemical facility
inspectors within the Department to ensure compliance with this title.
`(e) Confidential Communications- The Secretary shall offer non-supervisory
employees of a covered chemical facility the opportunity to confidentially
communicate information relevant to the compliance or noncompliance
of the employer with this title, including compliance or noncompliance
with any regulation or requirement adopted by the Secretary under this
title.
`(f) Right To Accompany During Physical Inspection- If a representative
of the owner or operator of a covered chemical facility will accompany
the Secretary on a physical inspection of the covered chemical facility,
an employee representative of each certified or recognized bargaining
agent at the covered chemical facility, if any, or, if none, a nonsupervisory
employee, shall be offered the opportunity to accompany the Secretary
during the physical inspection to aid in the inspection.
`SEC. 2105. RECORDS.
`(a) Request for Records- For purposes of carrying out this title, the
Secretary may require submission of, or upon presentation of credentials
and at reasonable times may obtain access to and copy, any records,
including any records maintained in electronic format, necessary for
reviewing or analyzing a security vulnerability assessment, or site
security plan submitted under section 2103, or for assessing the implementation
of a site security plan.
`(b) Proper Handling of Records- The Secretary shall ensure that any
records accessed under subsection (a) are handled and secured appropriately
in accordance with section 2110.
`SEC. 2106. TIMELY SHARING OF THREAT INFORMATION.
`(a) Responsibilities of Secretary- Upon the receipt of information
concerning a threat that is relevant to a certain covered chemical facility,
the Secretary shall provide the information in a timely manner, to the
maximum extent practicable under applicable authority and in the interests
of national security, to--
`(1) the owner, operator, or security officer of the covered chemical
facility;
`(2) a representative of each recognized or certified bargaining agent
at the covered chemical facility, if any; and
`(3) relevant authorities of State or local government, including
the State Homeland Security Advisor, if any.
`(b) Responsibilities of Owner or Operator- The Secretary shall require
the owner or operator of a covered chemical facility to provide to the
Secretary in a timely manner, information concerning--
`(1) a threat about any significant security incident or threat to
the covered chemical facility; or
`(2) any intentional or unauthorized penetration of the physical security
or cyber security of the covered chemical facility, whether successful
or unsuccessful.
`SEC. 2107. ENFORCEMENT.
`(a) Review of Security Vulnerability Assessment and Site Security Plan-
`(1) DISAPPROVAL- The Secretary shall disapprove a security vulnerability
assessment or site security plan submitted under this title if the
Secretary determines that--
`(A) the security vulnerability assessment or site security plan
does not comply with the standards, protocols, or procedures under
section 2103(a)(1)(A); or
`(B) in the case of a site security plan--
`(i) the site security plan or the implementation of the site
security plan is insufficient to address vulnerabilities identified
in a security vulnerability assessment, site inspection, or unannounced
inspection of the covered chemical facility; or
`(ii) the site security plan fails to meet all applicable chemical
facility security performance standards.
`(2) 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 a covered chemical facility, the Secretary
shall provide the owner or operator of the covered chemical facility
a written notification of the disapproval not later than 14 days after
the date on which the Secretary disapproves the security vulnerability
assessment or site security plan, which shall--
`(A) include a clear explanation of deficiencies in the security
vulnerability assessment, site security plan, or implementation
of the site security plan; and
`(B) require the owner or operator of the covered chemical facility
to--
`(i) revise the security vulnerability assessment or site security
plan to address any deficiencies; and
`(ii) by such date as the Secretary determines is appropriate,
submit the revised security vulnerability assessment or site security
plan to the Secretary.
`(1) ORDER FOR COMPLIANCE- If the Secretary determines that an owner
or operator of a covered chemical facility has violated or is in violation
of any requirement of this title or has failed or is failing to address
any deficiencies in the security vulnerability assessment, site security
plan, or implementation of the site security plan for the covered
chemical facility by such date as designated by the Secretary, the
Secretary may--
`(A) after providing notice to the owner or operator and an opportunity,
in accordance with the regulations issued under this title, for
the owner or operator to seek review by the Department of the determination
of the Secretary, issue an order assessing an administrative penalty
of not more than $25,000 for each day before, on, or after the date
of the order that the violation occurs or for each day after the
date of the order that a failure to comply continues, requiring
compliance immediately or within a specified time period, or both;
or
`(B) in a civil action, obtain appropriate equitable relief, a civil
penalty of not more than $25,000 for each day before, on, or after
the date of the order that the violation occurs or for each day
after the date of the order that a failure to comply continues,
or both.
`(2) ORDER TO CEASE OPERATIONS- If the Secretary determines that an
owner or operator of a covered chemical facility continues to be in
noncompliance after an order for compliance is issued under paragraph
(1), the Secretary may issue an order to the owner or operator to
cease operations at the covered chemical facility until the Secretary
determines the owner or operator is in compliance.
`(c) Applicability of Penalties- A penalty under subsection (b)(1) may
be imposed for any violation of this title, including a violation of
the whistleblower protections under section 2108.
`SEC. 2108. WHISTLEBLOWER PROTECTIONS.
`(1) IN GENERAL- The Secretary shall establish and provide information
to the public regarding a process by which an individual 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.
`(A) IN GENERAL- The Secretary shall keep confidential the identity
of any individual who submits a report under this subsection.
`(B) COMPLIANCE WITH SECTION 2110- A report submitted under this
subsection shall be treated as protected information under section
2110 to the extent that the report does not consist of publicly
available information.
`(3) ACKNOWLEDGMENT OF RECEIPT- If a report submitted under this subsection
identifies the individual submitting the report, the Secretary shall
respond promptly to the individual to acknowledge receipt of the report.
`(4) STEPS TO ADDRESS PROBLEMS- The Secretary shall--
`(A) review and consider the information provided in a report submitted
under this subsection; and
`(B) as necessary, take appropriate steps under this title to address
any problem, deficiency, or vulnerability identified in the report.
`(b) Retaliation Prohibited-
`(1) PROHIBITION- An owner or operator of a covered chemical facility,
for-profit or nonprofit corporation, association, or any contractor,
subcontractor or agent thereof, may not discharge an employee or otherwise
discriminate against an employee with respect to compensation of the
employee, terms, conditions, or other privileges of employment because
the employee (or any individual acting on behalf of the employee)--
`(A) notified the Secretary, the owner or operator of a covered
chemical facility, or the employer of the employee of an alleged
violation of this title, including notification of such an alleged
violation through communications related to carrying out the job
duties of the employee;
`(B) refused to participate in any conduct that the employee reasonably
believes is in noncompliance with a requirement under this title,
if the employee has identified the alleged noncompliance 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 a proceeding under this
title; or
`(F) assisted or participated, or is about to assist or participate,
in any manner in a proceeding under this title or in any other action
to carry out the purposes of this title.
`(A) IN GENERAL- An employee covered by this section who alleges
discrimination by an employer in violation of paragraph (1) may
bring an action governed by the rules and procedures, legal burdens
of proof, and remedies applicable under subsections (d) through
(h) of section 20109 of title 49, United States Code.
`(B) DISTRICT COURT REVIEW- An employee who brings an action under
subparagraph (A) may seek review by a district court of the United
States as set forth in subsection (d)(3) of section 20109 of title
49, United States Code not later than 90 days after receiving a
written final determination by the Secretary of Labor.
`(3) PROHIBITED PERSONNEL PRACTICES AFFECTING THE DEPARTMENT-
`(A) IN GENERAL- Notwithstanding any other provision of law, an
individual holding or applying for a position within the Department
shall be covered by--
`(i) paragraphs (1), (8), and (9) of section 2302(b) of title
5, United States Code;
`(ii) any provision of law implementing paragraph (1), (8), or
(9) of section 2302(b) of title 5, United States Code, by providing
any right or remedy available to an employee or applicant for
employment in the civil service; and
`(iii) any rule or regulation prescribed under paragraph (1),
(8), or (9) of section 2302(b) of title 5, United States Code.
`(B) RULE OF CONSTRUCTION- Nothing in this paragraph shall be construed
to affect any rights, apart from those referred to in subparagraph
(A), to which an individual described in subparagraph (A) might
otherwise be entitled to under law.
`SEC. 2109. FEDERAL PREEMPTION.
`This title does not preclude or deny any right of any State or unit
of local government to adopt or enforce any regulation, requirement,
or standard of performance with respect to a covered chemical facility
that is more stringent than a regulation, requirement, or standard of
performance issued under this title, or otherwise impair any right or
jurisdiction of any State or unit of local government with respect to
covered chemical facilities within the State or unit of local government.
`SEC. 2110. PROTECTION OF INFORMATION.
`(a) Prohibition of Public Disclosure of Protected Information- Protected
information--
`(1) shall be exempt from disclosure under section 552 of title 5,
United States Code; and
`(2) shall not be made available under the law of any State or local
government requiring disclosure of information or records.
`(b) Information Sharing-
`(1) IN GENERAL- The Secretary shall prescribe such regulations, and
may issue such orders, as necessary to prohibit the unauthorized disclosure
of protected information.
`(2) SHARING OF PROTECTED INFORMATION-
`(A) IN GENERAL- The regulations prescribed under paragraph (1)
shall provide standards for and facilitate the appropriate sharing
of protected information with and between--
`(i) Federal agencies and agencies of State and local governments;
`(ii) emergency response providers;
`(iii) law enforcement officials;
`(iv) designated supervisory and nonsupervisory covered chemical
facility personnel with security, operational, or fiduciary responsibility
for the covered chemical facility; and
`(v) designated employee representatives for a covered chemical
facility, if any.
`(B) REQUIREMENTS- The standards required to be established under
subparagraph (A) shall include procedures for the sharing of all
portions of a security vulnerability assessment or site security
plan of a covered chemical facility relating to the roles and responsibilities
of covered individuals under section 2103(h)(1) with a representative
of each certified or recognized bargaining agent representing the
covered individuals, if any, or, if none, with not less than 1 supervisory
and not less than 1 non-supervisory employee with roles or responsibilities
under section 2103(h)(1).
`(i) IN GENERAL- Protected information shall not be shared except
in accordance with the standards provided by the regulations prescribed
under paragraph (1).
`(ii) KNOWING VIOLATION- Any person that discloses protected information
in knowing violation of the regulations issued under paragraph
(1) shall--
`(I) be fined under title 18, United States Code, imprisoned
for not more than 1 year, or both; and
`(II) in the case of a Federal officeholder or employee, removed
from Federal office or employment.
`(c) Treatment of Information in Adjudicative Proceedings- In any judicial
or administrative proceeding, protected information shall be treated
in a manner consistent with the treatment of sensitive security information
under section 525 of the Department of Homeland Security Appropriations
Act, 2007 (Public Law 109-295; 120 Stat. 1381).
`(d) Other Obligations Unaffected- Except as provided in section 2103(i),
nothing in this section affects any obligation of the owner or operator
of a chemical facility under any other law to submit or make available
information required by such other law to--
`(1) employees of the chemical facility;
`(2) employee organizations;
`(3) health professionals;
`(4) emergency response organizations; or
`(5) the Federal Government or a State or local government.
`(e) Submission of Information to Congress- Nothing in this title shall
permit or authorize the withholding of information from Congress or
any committee or subcommittee thereof.
`(f) Disclosure of Independently Furnished Information- Nothing in this
title shall affect any authority or obligation of a Federal agency or
agency of a State or local government to protect or disclose any record
or information that the agency obtains from a chemical facility under
any other law.
`SEC. 2111. METHODS TO REDUCE THE CONSEQUENCES OF A TERRORIST ATTACK.
`(a) Definition- In this section, the term `feasible' means feasible
with the use of best technology, techniques, and other means that the
Secretary finds, after examination for efficacy under operational conditions
and not solely under laboratory conditions, are available for use at
a covered chemical facility.
`(b) Assessment Required- The site security plan for a covered chemical
facility shall include an assessment of methods to reduce the consequences
of a terrorist attack on the covered chemical facility, including--
`(1) a description of the methods to reduce the consequences of a
terrorist attack implemented and considered for implementation by
the covered chemical facility;
`(2) the degree to which each method to reduce the consequences of
a terrorist attack, if already implemented, has reduced, or, if implemented,
could reduce, the potential extent of death, injury, or serious adverse
effects to human health resulting from a release of a substance of
concern;
`(3) the technical feasibility, costs, avoided costs (including liabilities),
personnel implications, savings, and applicability of implementing
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.
`(A) IN GENERAL- The owner or operator of a covered chemical facility
that is assigned to tier 1 or tier 2 because of the potential extent
and likelihood of death, injury, or serious adverse effects to human
health, the environment, critical infrastructure, public health,
homeland security, national security, or the national economy from
a release of a substance of concern at the covered chemical facility
shall implement methods to reduce the consequences of a terrorist
attack on the covered chemical facility if the Director of the Office
of Chemical Facility Security determines, using the assessment conducted
under subsection (b), that the implementation of the methods at
the covered chemical facility--
`(i)(I) would significantly reduce the risk of death, injury,
or serious adverse effects to human health resulting from a chemical
facility terrorist incident; and
`(aa) increase the interim storage of a substance of concern
outside the covered chemical facility;
`(bb) directly result in the creation of a covered chemical
facility assigned to tier 1 or tier 2 because of the potential
extent and likelihood of death, injury, or serious adverse effects
to human health, the environment, critical infrastructure, public
health, homeland security, national security, or the national
economy from a release of a substance of concern at the covered
chemical facility;
`(cc) result in the reassignment of a covered chemical facility
from tier 3 or tier 4 to tier 1 or tier 2 because of the potential
extent and likelihood of death, injury, or serious adverse effects
to human health, the environment, critical infrastructure, public
health, homeland security, national security, or the national
economy from a release of a substance of concern at the covered
chemical facility; and
`(dd) significantly increase the potential extent and likelihood
of death, injury, or serious adverse effects to human health,
the environment, critical infrastructure, public health, homeland
security, national security, or the national economy from a
release of a substance of concern due to a terrorist attack
on the transportation infrastructure of the United States;
`(ii) can feasibly be incorporated into the operation of the covered
chemical facility; and
`(iii) would not significantly and demonstrably impair the ability
of the owner or operator of the covered chemical facility to continue
the business of the covered chemical facility at its location.
`(B) WRITTEN DETERMINATION- A determination made by the Director
of the Office of Chemical Facility Security under subparagraph (A)
shall be made in writing and include the basis and reasons for the
determination, including the analysis of the Director of the assessment
by the covered chemical facility of the technical feasibility, costs,
avoided costs (including liabilities), personnel implications, savings,
and applicability of implementing each method to reduce the consequences
of a terrorist attack.
`(C) MARITIME FACILITIES- With respect to a covered chemical facility
for which a facility security plan is required under section 70103(c)
of title 46, United States Code, a written determination under subparagraph
(A) shall be made only after consultation with the Captain of the
Port for the area in which the covered chemical facility is located.
`(2) REVIEW OF INABILITY TO COMPLY-
`(A) IN GENERAL- Not later than 120 days after receipt of a determination
made by the Director under paragraph (1), an owner or operator of
a covered chemical facility who is unable to comply with the determination
shall provide to the Secretary a written explanation that--
`(i) includes the reasons for noncompliance; and
`(ii) specifies whether the inability of owner or operator to
comply arises under clause (ii) or (iii) of paragraph (1)(A),
or both.
`(i) IN GENERAL- Not later than 120 days after receipt of an explanation
submitted by an owner or operator of a covered chemical facility
under subparagraph (A), the Secretary, after consulting with the
owner or operator, as well as experts in the subjects of environmental
health and safety, security, chemistry, design and engineering,
process controls and implementation, maintenance, production and
operations, chemical process safety, and occupational health,
as appropriate, shall provide to the owner or operator a written
determination of whether, in the discretion of the Secretary,
implementation shall be required under paragraph (1).
`(ii) DETERMINATION THAT IMPLEMENTATION IS REQUIRED- If the Secretary
determines that implementation is required under clause (i), the
Secretary shall issue an order that establishes the basis for
the determination, including--
`(I) the findings of the relevant experts;
`(II) the specific methods selected for implementation; and
`(III) a schedule for implementation of the methods at the covered
chemical facility.
`(d) Agricultural Sector-
`(1) DEFINITIONS- In this subsection:
`(A) FARM SUPPLIES MERCHANT WHOLESALER- The term `farm supplies
merchant wholesaler' means a covered chemical facility that is primarily
engaged in the merchant wholesale distribution of farm supplies,
including animal feeds, fertilizers, agricultural chemicals, pesticides,
plant seeds, and plant bulbs.
`(B) AGRICULTURAL END-USERS- The term `agricultural end-users' means
facilities such as--
`(i) farms, including crop, fruit, nut, and vegetable farms;
`(ii) ranches and rangeland;
`(iii) poultry, dairy, and equine facilities;
`(vii) floricultural operations; and
`(viii) public and private parks.
`(2) GUIDANCE FOR FARM SUPPLIES MERCHANT WHOLESALERS-
`(A) IN GENERAL- The Secretary shall provide guidance and, as appropriate,
tools, methodologies, or computer software, to assist farm supplies
merchant wholesalers in complying with this section.
`(B) GRANTS AUTHORIZED- The Secretary may award grants to farm supplies
merchant wholesalers to assist compliance with subsection (b), and
in awarding grants, shall give priority to farm supplies merchant
wholesalers that, in the discretion of the Secretary, have the greatest
need for the grants.
`(3) ASSESSMENT OF AGRICULTURAL IMPACTS- Not later than 6 months after
the date of the enactment of this title, the Secretary shall submit
an assessment of the potential impacts of compliance with this section
regarding the assessment and, as appropriate, implementation of methods
to reduce the consequences of a terrorist attack on the agricultural
sector to--
`(A) the Committee on Homeland Security and Governmental Affairs,
the Committee on Environment and Public Works, and the Committee
on Agriculture, Nutrition and Forestry of the Senate; and
`(B) the Committee on Homeland Security, the Committee on Energy
and Commerce, and the Committee on Agriculture of the House of Representatives.
`(4) CONSULTATION- The assessment required under paragraph (3) shall
be conducted by the Secretary in consultation with other appropriate
Federal agencies.
`(5) REQUIREMENTS- The assessment required under paragraph (3) shall
include--
`(A) data on the scope of agricultural facilities to which this
title applies, including--
`(i) the number and type of manufacturers, retailers, aerial commercial
applicators, and distributors of pesticide and fertilizer required
to assess methods to reduce the consequences of a terrorist attack
under subsection (b); and
`(ii) the number and type of manufacturers, retailers, aerial
commercial applicators, and distributors of pesticide and fertilizer
assigned to tier 1 or tier 2 by the Secretary because of the potential
extent and likelihood of death, injury, or serious adverse effects
to human health, the environment, critical infrastructure, public
health, homeland security, national security, or the national
economy from the release of a substance of concern at the covered
chemical facility;
`(B) a survey of known methods, processes or practices, other than
elimination of or cessation of manufacturing of the pesticide or
fertilizer, that manufacturers, retailers, aerial commercial applicators,
and distributors of pesticide and fertilizer could use to reduce
the consequences of a terrorist attack, including an assessment
of the costs and technical feasibility of each such method, process,
or practice;
`(C) an analysis of how the assessment of methods to reduce the
consequences of a terrorist attack under subsection (b) by manufacturers,
retailers, aerial commercial applicators, and distributors of pesticide
and fertilizer, and, as appropriate, the implementation of methods
to reduce the consequences of a terrorist attack by such manufacturers,
retailers, aerial commercial applicators, and distributors of pesticide
and fertilizer subject to subsection (c), are likely to impact agricultural
end-users; and
`(D) recommendations for how to mitigate any adverse impacts identified
under subparagraph (C).
`(e) Small Covered Chemical Facilities-
`(1) DEFINITION- For purposes of this subsection, the term `small
covered chemical facility' means a covered chemical facility that--
`(A) has fewer than 350 employees employed at the covered chemical
facility; and
`(B) is not a branch or subsidiary of another entity.
`(2) GUIDANCE FOR SMALL COVERED CHEMICAL FACILITIES- The Secretary
may provide guidance and, as appropriate, tools, methodologies, or
computer software, to assist small covered chemical facilities in
complying with this section.
`(3) LIMITATION ON IMPLEMENTATION OF METHODS- The Secretary may not
require a small covered chemical facility to implement methods to
reduce the consequences of a terrorist attack under subsection (c)
unless the Secretary determines that the implementation of the methods
at the small covered chemical facility do not significantly and demonstrably
impair the ability of the owner or operator of the covered chemical
facility to continue the business of the covered chemical facility
at the location of the covered chemical facility.
`(4) ASSESSMENT OF IMPACTS ON SMALL COVERED CHEMICAL FACILITIES-
`(A) IN GENERAL- Not later than 6 months after the date of the enactment
of this title, the Secretary shall submit an assessment of the potential
effects on small covered chemical facilities of compliance with
this section regarding the assessment and, as appropriate, implementation
of methods to reduce the consequences of a terrorist attack to--
`(i) the Committee on Environment and Public Works and the Committee
on Homeland Security and Governmental Affairs of the Senate; and
`(ii) the Committee on Energy and Commerce and the Committee on
Homeland Security of the House of Representatives.
`(B) REQUIREMENTS- The assessment required under subparagraph (A)
shall include--
`(i) data on the scope of small covered chemical facilities to
which this title applies, including--
`(I) the number and type of small covered chemical facilities
that are required to assess methods to reduce the consequences
of a terrorist attack under subsection (b); and
`(II) the number and type of small covered chemical facilities
assigned to tier 1 or tier 2 under section 2102(c)(1) by the
Secretary because of the potential extent and likelihood of
death, injury, or serious adverse effects to human health, the
environment, critical infrastructure, public health, homeland
security, national security, or the national economy from the
release of a substance of concern at the covered chemical facility;
and
`(ii) a discussion of how the Secretary plans to implement paragraph
(3).
`(f) Provision of Information on Alternative Approaches-
`(1) INFORMATION ON METHODS TO REDUCE CONSEQUENCES OF A TERRORIST
ACT-
`(A) IN GENERAL- Not later than 1 year after the date of enactment
of the Secure Chemical Facilities Act, the Secretary shall--
`(i) make available information on the use and availability of
methods to reduce the consequences of a chemical facility terrorist
attack; and
`(ii) periodically update the information described in clause
(i).
`(B) INFORMATION TO BE INCLUDED- The information made available
under subparagraph (A) may include information relating to--
`(i) general and specific types of the methods to reduce the consequences
of a chemical facility terrorist attack;
`(ii) combinations of chemical sources, substances of concern,
and hazardous processes or conditions for which the methods described
in clause (i) could be appropriate;
`(iii) the availability of specific methods to reduce the consequences
of a terrorist attack;
`(iv) the costs and cost savings resulting from the use of such
methods;
`(v) emerging technologies that could be transferred from research
models or prototypes to practical applications;
`(vi) the availability of technical assistance and best practices;
and
`(vii) such other matters that the Secretary determines are appropriate.
`(2) SECTOR REPORTS ON METHODS TO REDUCE CONSEQUENCES OF A TERRORIST
ACT-
`(A) IN GENERAL- The Secretary shall periodically make available
industry sector reports on methods to reduce the consequences of
a terrorist attack that are in use at chemical facilities.
`(B) CONTENTS OF REPORT- The reports described in subparagraph (A)
shall include, by industry sector or appropriate groupings of industry
sectors, elements of feasible technologies, techniques, or other
means described in subsection (b) that are--
`(i) identified by covered chemical facilities under subsection
(b) and submitted to the Secretary under section 2103; or
`(ii) identified by the Secretary from relevant information sources.
`(C) PUBLIC AVAILABILITY- Information made available under this
paragraph--
`(i) shall not identify any specific chemical facility;
`(ii) shall be made available in accordance with section 2110;
and
`(iii) shall not disclose any proprietary information.
`(g) Funding for Methods To Reduce the Consequences of a Terrorist Attack-
The Secretary shall make grants to covered chemical facilities, with
priority given to the highest risk covered chemical facilities, as determined
by the Secretary, to supplement a portion of the costs of implementing
methods to reduce the consequences of a terrorist attack.
`SEC. 2112. APPLICABILITY.
`This title shall not apply to--
`(1) any chemical facility that is owned and operated by the Secretary
of Defense;
`(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;
`(3) all or a specified portion of any chemical facility that--
`(A) is subject to regulation by the Nuclear Regulatory Commission
(referred to in this paragraph as the `Commission') or a State that
has entered into an agreement with the Commission under section
274 b. of the Atomic Energy Act of 1954 (42 U.S.C. 2021 b.);
`(B) has had security controls imposed by the Commission or State,
whichever has the regulatory authority, on the entire facility or
the specified portion of the chemical facility; and
`(C) has been designated by the Commission, after consultation with
the State, if any, that regulates the facility, and the Secretary,
as excluded from the application of this title;
`(4) any public water system subject to the Safe Drinking Water Act
(42 U.S.C. 300f et seq.); or
`(5) any treatment works, as defined in section 212 of the Federal
Water Pollution Control Act (33 U.S.C. 1292).
`SEC. 2113. SAVINGS CLAUSE.
`(a) In General- Nothing in this title shall affect or modify in any
way any obligation or liability of any person under any other Federal
law, including--
`(1) section 112 of the Clean Air Act (42 U.S.C. 7412);
`(2) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.);
`(3) the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
6901 et seq.);
`(4) the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.);
`(5) the Occupational Safety and Health Act (29 U.S.C. 651 et seq.);
`(6) the National Labor Relations Act (29 U.S.C. 151 et seq.);
`(7) the Emergency Planning and Community Right to Know Act of 1986
(42 U.S.C. 11001 et seq.);
`(8) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);
`(9) the Maritime Transportation Security Act of 2002 (Public Law
107-295);
`(10) the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.);
`(11) the Toxic Substances Control Act (15 U.S.C. 2601 et seq.);
`(12) the Pollution Prevention Act of 1990 (42 U.S.C. 13101 et seq.);
and
`(13) the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).
`(b) State and Local Governments- Nothing in this title shall preclude
or deny the right of any State or unit of local government to adopt
or enforce any regulation, requirement, or standard of performance relating
to environmental protection, health, or safety.
`(c) Access- Nothing in this title shall abridge or deny access to a
chemical facility site to any person where required or permitted under
any other law or regulation.
`SEC. 2114. OFFICE OF CHEMICAL FACILITY SECURITY.
`(a) In General- There is established in the Department an Office of
Chemical Facility Security, headed by a Director, who shall--
`(1) be a member of the Senior Executive Service under section 5382
of title 5, United States Code; and
`(2) 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 of the Office of Chemical Facility Security shall have
professional qualifications and experience necessary for effectively
directing the Office of Chemical Facility Security and carrying out
this title, including--
`(1) a demonstrated knowledge of--
`(A) physical infrastructure protection;
`(C) chemical facility security;
`(E) chemical process engineering;
`(F) chemical process safety reviews; or
`(2) other such qualifications that the Secretary determines to be
necessary.
`(c) Selection Process- The Secretary shall--
`(1) make a reasonable effort to select an individual to serve as
the Director of the Office of Chemical Facility Security from among
a group of candidates that is diverse with respect to race, ethnicity,
age, gender, and disability characteristics; and
`(2) submit information on the selection process, including details
on efforts to assure diversity among the candidates, to--
`(A) the Committee on Homeland Security and Governmental Affairs
of the Senate; and
`(B) the Committee on Homeland Security and the Committee on Energy
and Commerce of the House of Representatives.
`(1) POINT OF CONTACT- The Secretary shall designate a point of contact
for the Administrator of the Environmental Protection Agency, and
the head of any other agency designated by the Secretary, with respect
to the requirements under this title.
`(2) OUTREACH- The Secretary shall, as appropriate, and in accordance
with this title, inform State emergency response commissions appointed
under section 301(a) of the Emergency Planning and Community Right-To-Know
Act of 1986 (42 U.S.C. 11001), local emergency planning committees
appointed under section 301(c) of that Act, and any other entity designated
by the Secretary of the findings of the Office of Chemical Facility
Security so that the commissions and committees may update emergency
planning and training procedures.
`SEC. 2115. SECURITY BACKGROUND CHECKS OF COVERED INDIVIDUALS AT CERTAIN
CHEMICAL FACILITIES.
`(a) Definition of Security Background Check- In this section, the term
`security background check' means a review, at no cost to an individual
subject to the review, under subsection (b)(1) to identify individuals
who may pose a threat to chemical facility security, to national security,
or of terrorism of--
`(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(a)(3) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(3))), the relevant
databases to determine the status of the alien under the immigration
laws of the United States;
`(4) the consolidated terrorist watchlist; and
`(5) any other relevant information or databases, as determined by
the Secretary.
`(b) Regulations Issued by the Secretary-
`(A) REQUIREMENT- The Secretary shall issue regulations to require
covered chemical facilities to establish personnel surety for individuals
described in subparagraph (B) by conducting appropriate security
background checks and ensuring appropriate credentials for unescorted
visitors and personnel of the covered chemical facility, 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 individuals with terrorist
ties.
`(B) INDIVIDUALS DESCRIBED- For purposes of subparagraph (A), an
individual described in this subparagraph is--
`(i) a covered individual who--
`(I) has unescorted access to restricted areas or critical assets;
or
`(II) is provided with a copy of a security vulnerability assessment
or site security plan;
`(ii) an individual associated with a covered chemical facility,
including any designated employee representative, who is provided
with a copy of a security vulnerability assessment or site security
plan; or
`(iii) an individual who is determined by the Secretary to require
a security background check based on chemical facility security
performance standards.
`(2) REGULATIONS- The regulations required under paragraph (1) shall
set forth--
`(A) the scope of the security background checks, including--
`(i) a list of offenses that are reasonably related to terrorism
at a chemical facility and therefore disqualify, on an interim
or permanent basis, the individual from working at the covered
chemical facility;
`(ii) the time period after which an interim disqualifying offense
is no longer a disqualification, including applying the time periods
described in part 1572 of title 49, Code of Federal Regulations,
or any successor thereto, where applicable to the offenses identified
in clause (i); and
`(iii) the time period covered for each person subject to a security
background check under paragraph (1);
`(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;
`(D) a redress process for an adversely affected individual consistent
with subsections (c) and (d);
`(E) a prohibition on an owner or operator of a covered chemical
facility misrepresenting to an employee or other relevant individual,
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; and
`(F) a requirement that any adverse employment decision based on
a finding in subparagraph (C), of a person subject to a security
background check under subsection (a)(1), shall be based on accurate
and up-to-date information.
`(c) Misrepresentation of Adverse Employment Decisions- The regulations
required under subsection (b)(1) shall provide that it shall be a misrepresentation
under subsection (b)(2)(E) to attribute an adverse employment decision,
including removal or suspension of an employee, to the regulations unless
the owner or operator of a covered chemical facility determines, after
opportunity for appropriate redress under the processes provided under
subsection (d)(1), that the individual subject to the adverse employment
decision--
`(1)(A) meets the requirements for interim or permanent disqualifying
offenses reasonably related to terrorism at a covered chemical facility
promulgated under subsection (b)(1);
`(B) is on the consolidated terrorist watchlist; or
`(C) is determined, as a result of the security background check,
not to be legally authorized to work in the United States; and
`(2) has been informed of the basis for the decision and the full
rights of the individual to the prompt appeals and reconsideration
procedures under subsection (d) before an adverse employment action
is taken.
`(d) Redress Processes- The regulations issued by the Secretary under
subsection (b) shall--
`(1) provide an adequate and prompt redress process for an individual
subject to a security background check under subsection (b)(1) who
is subjected to an adverse employment decision, including removal
or suspension of the individual, due to a determination by the employer
under subsection (c), that is consistent with the appeals process
established under section 70105(c) of title 46, United States Code,
including all rights to--
`(A) hearings before an administrative law judge;
`(B) scope of review; and
`(C) a review of an unclassified summary of classified evidence
equivalent to the summary provided in part 1515 of title 49, Code
of Federal Regulations;
`(2) provide an adequate and prompt redress process for an individual
subject to a security background check under subsection (b)(1) who
is subjected to an adverse employment decision, including removal
or suspension of the individual, due to a violation of subsection
(b)(2)(E), which shall not preclude the exercise of any other rights
available under collective bargaining agreements or applicable laws;
`(3) establish a reconsideration process described in subsection (e)
for an individual subject to an adverse employment decision that was
attributed by an owner or operator to the regulations required under
subsection (b)(1);
`(4) include the authority to order an appropriate remedy, including
reinstatement of the individual subject to a security background check
under subsection (b)(1), if the Secretary determines that the adverse
employment decision was made--
`(A) in violation of the regulations required under subsection (b)(1);
`(B) as a result of an erroneous determination by the Secretary
to place the individual on the consolidated terrorist watchlist;
or
`(C) as a result of an erroneous determination by the owner or operator
of a covered chemical facility under subsection (c);
`(5) ensure that the redress processes required under paragraphs (1)
and (2) afford to the individual a full disclosure of any public-record
event covered under subsection (c) that provides the basis for an
adverse employment decision; and
`(6) ensure that the individual subject to a security background check
under subsection (b)(1) receives the full wages and benefits due to
the individual until all redress processes under this subsection are
exhausted.
`(e) Reconsideration Process-
`(1) IN GENERAL- The reconsideration process required under subsection
(d)(3) shall--
`(A) require the Secretary to determine, within 30 days after receiving
a petition submitted by an individual subject to an adverse employment
decision that was attributed by an owner or operator to the regulations
required under subsection (b)(1), whether the individual poses a
security risk to the covered chemical facility; and
`(B) include procedures consistent with section 70105(c) of title
46, United States Code, including all rights to--
`(i) hearings before an administrative law judge;
`(ii) scope of review; and
`(iii) a review of an unclassified summary of classified evidence
equivalent to the summary provided in part 1515 of title 49, Code
of Federal Regulations.
`(2) DETERMINATION BY THE SECRETARY- In making a determination described
under paragraph (1)(A), the Secretary shall--
`(A) give consideration to the circumstance of any disqualifying
act or offense, restitution made by the individual, Federal and
State mitigation remedies, and other factors from which it may be
concluded that the individual does not pose a security risk to the
covered chemical facility; and
`(B) determine whether the individual poses a security risk to the
covered chemical facility to the petitioner and to the owner or
operator of the covered chemical facility.
`(3) OWNER OR OPERATOR RECONSIDERATION- If the Secretary determines
under paragraph (1)(A) that the individual does not pose a security
risk to the covered chemical facility, it shall be a prohibited misrepresentation
for the owner or operator of the covered chemical facility to continue
to attribute the adverse employment decision to the regulations under
subsection (b)(1).
`(f) Restrictions on Use and Maintenance of Information- Information
obtained under this section by the Secretary or the owner or operator
of a covered chemical facility--
`(1) may not be made available to the public;
`(2) may not be accessed by an employee of the covered chemical facility,
except for an employee who is directly involved with collecting the
information or conducting or evaluating security background checks;
`(3) shall be maintained confidentially by the covered chemical facility
and the Secretary;
`(4) shall be used only for making determinations under this section;
and
`(5) may be shared by the Secretary with other Federal law enforcement
agencies and law enforcement agencies of State and local governments.
`(1) RIGHTS AND RESPONSIBILITIES- Nothing in this section shall be
construed to abridge any right or responsibility of an individual
subject to a security background check under subsection (b)(1) or
an owner or operator of a covered chemical facility under any other
Federal law, the law of a State or local government, or a collective
bargaining agreement.
`(2) EXISTING RIGHTS- 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.
`(h) Preemption- Nothing in this section shall be construed to preempt,
alter, or affect a Federal law or the law of a State local or local
government that requires criminal history background checks, checks
on the authorization of an individual to work in the United States,
or other background checks of individuals subject to security background
checks under subsection (b)(1).
`(i) Department-Conducted Security Background Check-
`(1) IN GENERAL- The regulations under subsection (b)(1) shall set
forth a process by which the Secretary, on an ongoing basis, shall
determine whether alternate security background checks conducted by
the Secretary are sufficient to meet the requirements under this section
such that no additional security background check under this section
is required for an individual for whom the qualifying alternate security
background check was conducted.
`(2) SUBMISSION OF INFORMATION FOR VERIFICATION- The Secretary may
require the owner or operator of a covered chemical facility to which
an individual will have unescorted access to sensitive or restricted
areas to submit identifying information about the individual and the
alternate security background check conducted for the individual to
the Secretary in order to enable the Secretary to verify the validity
of the alternate security background check.
`(3) DETERMINATION OF EXEMPTION FROM SECURITY BACKGROUND CHECK-
`(A) IN GENERAL- The Secretary shall determine whether a security
background check under this section is required for an individual
holding a transportation security card issued under section 70105
of title 46, United States Code.
`(B) REGULATIONS- If the Secretary determines under subparagraph
(A) that no background check is required for an individual holding
a transportation security card issued under section 70105 of title
46, United States Code, the Secretary shall include the determination
in the regulations required under subsection (b)(1).
`(j) Termination of Employment- If, as the result of a security background
check, an owner or operator of a covered chemical facility finds that
a covered individual is not legally authorized to work in the United
States, the owner or operator shall cease to employ the covered individual,
subject to the appropriate redress processes available to the individual
under this section.
`SEC. 2116. CITIZEN ENFORCEMENT.
`(a) In General- Except as provided in subsection (c), a person may
bring a civil action--
`(1) against any governmental entity (including the United States
and any other governmental instrumentality or agency, to the extent
permitted by the eleventh amendment to the Constitution of the United
States, and any federally owned-contractor operated facility) alleged
to be in violation of any order that has become effective under this
title; or
`(2) against the Secretary, for an alleged failure to perform any
act or duty under this title that is not discretionary for the Secretary.
`(b) Court of Jurisdiction-
`(1) IN GENERAL- Any action under subsection (a)(1) shall be brought
in the district court of the United States for the district in which
the alleged violation occurred.
`(2) ACTION AGAINST THE SECRETARY- Any action brought under subsection
(a)(2) may be brought in the district court of the United States for
the district in which the alleged violation occurred or in the United
States District Court for the District of Columbia.
`(3) RELIEF- A district court of the United States may, without regard
to the amount in controversy or the citizenship of the parties--
`(A) enforce an order described in subsection (a)(1);
`(B) order a governmental entity to take such action as may be necessary
to enforce an order described in subsection (a)(1); and
`(C) in a civil action brought under subsection (a)(2), order the
Secretary to perform a non-discretionary act or duty under this
title, and impose civil penalties, as appropriate, under section
2107.
`(c) Actions Prohibited- A civil action may not be filed under subsection
(a) before 60 days after the date on which the person commencing the
action has given notice of the alleged violation to--
`(2) in the case of an action under subsection (a)(1), any governmental
entity alleged to be in violation of an order.
`(d) Notice- Notice under this section shall be given in such manner
as the Secretary shall prescribe by regulation.
`(e) Intervention- In any action under this section, the Secretary,
if not a party, may intervene as a matter of right.
`(f) Costs- If determined appropriate by the court, the court may award
the costs of litigation (including reasonable attorney and expert witness
fees) to the prevailing or substantially prevailing party in a civil
action under subsection (a).
`(g) Bond- The court may, if a temporary restraining order or preliminary
injunction is sought, require the filing of a bond or equivalent security
in accordance with the Federal Rules of Civil Procedure.
`(h) Other Rights Preserved- Nothing in this section shall restrict
any right which any person (or class of persons) may have under any
statute or common law.
`SEC. 2117. CITIZEN PETITIONS.
`(a) Regulations- The Secretary shall issue regulations to establish
a citizen petition process for petitions described in subsection (b),
which shall establish--
`(1) the format for the petitions;
`(2) the procedure for investigation of the petitions;
`(3) the procedure for response to the petitions, including timelines;
`(4) the procedure for referral to and review by the Office of the
Inspector General of the Department without deference to a determination
made by the Secretary with respect to the petition; and
`(5) the procedure for rejection or acceptance by the Secretary of
the recommendation of the Office of the Inspector General.
`(b) Petitions- The regulations promulgated under subsection (a) shall
allow any person to file a petition with the Secretary--
`(1) identifying any person (including the United States and any other
governmental instrumentality or agency, to the extent permitted by
the eleventh amendment to the Constitution of the United States) alleged
to be in violation of any standard, regulation, condition, requirement,
prohibition, plan, or order that has become effective under this title;
and
`(2) describing the alleged violation of any standard, regulation,
condition, requirement, prohibition, plan, or order that has become
effective under this title by the person described in paragraph (1).
`(c) Requirements- After the Secretary issues regulations under subsection
(a), the Secretary shall--
`(1) accept all petitions described under subsection (b) that meet
the requirements of the regulations issued under subsection (a);
`(2) investigate all allegations contained in accepted petitions;
`(3) determine whether enforcement action will be taken concerning
the alleged violation or violations;
`(4) respond to all accepted petitions promptly and in writing;
`(5) include in all responses to petitions a brief and concise statement,
to the extent permitted under section 2110, of the allegations, the
steps taken to investigate, the determination made, and the reasons
for such determination;
`(6) maintain an internal record including all protected information
relating to the determination;
`(7) with respect to any petition for which the Secretary has not
made a timely response or the response of the Secretary is unsatisfactory
to the petitioner, provide the petitioner with the opportunity to
request--
`(A) a review of the full record by the Inspector General of the
Department, including a review of protected information; and
`(B) the formulation of recommendations by the Inspector General
and submittal of such recommendations to the Secretary and, to the
extent permitted under section 2110, to the petitioner; and
`(8) respond to a recommendation submitted by the Inspector General
under paragraph (7) by adopting or rejecting the recommendation.
`SEC. 2118. NOTIFICATION SYSTEM TO ADDRESS PUBLIC CONCERNS.
`(a) Establishment- The Secretary shall establish a notification system,
which shall provide an individual the ability to report, via telephonic
and Internet-based means, a suspected security deficiency or suspected
noncompliance with this title.
`(b) Acknowledgment- When the Secretary receives a report through the
notification system established under subsection (a), the Secretary
shall respond to the report in a timely manner, but in no case shall
the Secretary respond to such a report later than 30 days after receipt
of the report.
`(c) Steps To Address Problems- The Secretary shall--
`(1) review each report received through the notification system established
under subsection (a); and
`(2) as necessary, take appropriate enforcement action under section
2107.
`(d) Feedback Required- Upon request, the Secretary shall provide to
the individual who reported the suspected security deficiency or noncompliance
through the notification system established under subsection (a) a written
response that includes the findings of the Secretary with respect to
the report submitted by the individual and what, if any, compliance
action was taken in response to the report.
`(e) Inspector General Report Required-
`(1) IN GENERAL- The Inspector General of the Department shall submit
to the Committee on Homeland Security and Governmental Affairs and
the Committee on Environment and Public Works of the Senate and the
Committee on Homeland Security and the Committee on Energy and Commerce
of the House of Representatives an annual report on the reports received
under the notification system established under subsection (a) and
the disposition of the reports by the Secretary.
`(2) CONFIDENTIAL INFORMATION- The report required under paragraph
(1) shall be made publically available, except for protected information
as determined by the Inspector General, which shall be submitted to
Congress in an appendix to the report.
`SEC. 2119. EMERGENCY RESPONSE CAPACITY STUDY.
`(a) Assessment and Report-
`(1) IN GENERAL- The Secretary shall assess and submit a report to
Congress on the emergency response resources that would be required
in order to feasibly respond to a worst-case chemical facility terrorist
incident, including worst-case release of a substance of concern.
`(2) CONTENTS- The report required under paragraph (1) shall describe--
`(A) the availability of fire, police, medical, and other response
personnel;
`(B) the sufficiency of emergency response facilities, equipment,
and supplies;
`(C) the logistical feasibility of evacuation;
`(D) the carrying capacity of impeded and unimpeded evacuation routes;
`(E) the protective capacity of structures;
`(F) the availability of health and environmental hazard detection,
identification, monitoring, cleanup, and decontamination;
`(G) the surge capacities of hospitals and other health care facilities;
`(H) the feasibility of warning persons within vulnerable areas
prior to impact and the capacity of community notification and warning
systems;
`(I) the protection of vulnerable populations and immobilized populations
(including in schools, day care centers, nursing homes, hospitals,
sports arenas, shopping malls, homes, and businesses);
`(J) any additional relevant planning provisions identified in section
303(c) of the Emergency Planning and Community Right to Know Act
(42 U.S.C. 11003(c));
`(K) the necessary funding, organization (including interagency
coordination), personnel, training, equipment, exercises, transportation,
community notification, medical, infrastructure, and other elements
to appropriately address any deficiencies in response capacities;
and
`(L) any additional factors affecting the feasibility of appropriately
responding to a worst-case chemical facility terrorist incident,
including worst-case release of a substance of concern.
`(3) PUBLIC AVAILABILITY- The report required under this section shall
be made publicly available, and shall not include protected information.
`(4) CONFIDENTIAL INFORMATION- The Secretary shall submit any protected
information relating to the report required under paragraph (1) to
Congress in an appendix to the report.
`SEC. 2120. ANNUAL REPORT TO CONGRESS.
`(a) Annual Report- Not later than 1 year after the date of enactment
of this title, and annually thereafter for 10 years, the Secretary shall
submit a report on progress in achieving compliance with this title
to--
`(1) the Committee on Homeland Security and Governmental Affairs and
the Committee on Environment and Public Works of the Senate; and
`(2) the Committee on Homeland Security and the Committee on Energy
and Commerce of the House of Representatives.
`(b) Requirement- Each report required under subsection (a) shall include--
`(1) a qualitative discussion of how covered chemical facilities,
differentiated by tier, have reduced the risks of chemical facility
terrorist incidents at the covered chemical facilities, including--
`(A) a generalized summary of measures implemented by covered chemical
facilities in order to meet each risk-based chemical facility performance
standard established under this title, and the measures that the
covered chemical facilities already had in place--
`(i) in the case of the first report under this section, before
the issuance of the final rule implementing the regulations known
as the `Chemical Facility Anti-Terrorism Standards', issued on
April 9, 2007; and
`(ii) in the case of each subsequent report, since the submittal
of the most recent report submitted under this section; and
`(B) any other generalized summary the Secretary determines appropriate
to describe the measures covered chemical facilities are implementing
to comply with this title; and
`(2) a quantitative summary of how the covered chemical facilities,
differentiated by tier, are complying with this title during the period
covered by the report and how the Secretary is implementing and enforcing
this title during the period covered by the report, including--
`(A) the number of chemical facilities that provided the Secretary
with information about possessing substances of concern, as described
in section 2102(b)(2);
`(B) the number of covered chemical facilities assigned to each
tier;
`(C) the number of security vulnerability assessments and site security
plans submitted by covered chemical facilities;
`(D) the number of security vulnerability assessments and site security
plans approved and disapproved by the Secretary;
`(E) the number of covered chemical facilities without an approved
security vulnerability assessment or site security plan;
`(F) the number of chemical facilities that have been assigned to
a different tier or are no longer designated as a covered chemical
facility by the Secretary due to implementation of a method to reduce
the consequences of a terrorist attack and a description of the
method;
`(G) the number of orders for compliance issued by the Secretary;
`(H) the administrative penalties assessed by the Secretary for
noncompliance with this title;
`(I) the civil penalties assessed by the court for noncompliance
with this title;
`(J) the number of terrorist watchlist checks conducted by the Secretary
in order to comply with this title;
`(K) the number of appeals conducted by the Secretary and the number
of petitions for reconsideration considered by the Secretary under
the processes established under subsections (d) and (e) of section
2115, including those appeals and reconsiderations addressing the
processes described under section 2115(c);
`(L) aggregate information regarding the time taken for the appeals
described in subparagraph (K);
`(M) aggregate information regarding the manner in which the appeals
described in subparagraph (K) were resolved;
`(N) based on information provided to the Secretary annually by
each owner or operator of a covered chemical facility, the number
of individuals subjected to adverse employment decisions that were
attributed by the owner or operator to the regulations required
under section 2115(b)(1); and
`(O) any other data the Secretary determines appropriate to describe
compliance with this title by chemical facilities and the implementation
of this title by the Secretary.
`(c) Public Availability- A report submitted under this section shall
be made publicly available.
`SEC. 2121. AUTHORIZATION OF APPROPRIATIONS.
`There is authorized to be appropriated to the Secretary to carry out
this title--
`(1) $300,000,000 for each of fiscal years 2012 and 2013, of which
$150,000,000 shall be made available for grants under section 2111(g)
for methods to reduce the consequences of a terrorist attack, of which
up to $3,000,000 shall be made available for grants authorized under
section 2111(d)(2); and
`(2) $275,000,000 for each of fiscal years 2013, 2014, and 2015, of
which $150,000,000 shall be made available for grants under section
2111(g) for methods to reduce the consequences of a terrorist attack,
of which up to $3,000,000 shall be made available for grants authorized
under section 2111(d)(2).'.
(b) Clerical Amendment- The table of contents in section 1(b) of such
Act is amended by adding at the end the following:
`TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES
`Sec. 2102. Risk-based designation and ranking of covered chemical
facilities.
`Sec. 2103. Security vulnerability assessments and site security plans.
`Sec. 2104. Site inspections.
`Sec. 2106. Timely sharing of threat information.
`Sec. 2108. Whistleblower protections.
`Sec. 2109. Federal preemption.
`Sec. 2110. Protection of information.
`Sec. 2111. Methods to reduce the consequences of a terrorist attack.
`Sec. 2112. Applicability.
`Sec. 2113. Savings clause.
`Sec. 2114. Office of Chemical Facility Security.
`Sec. 2115. Security background checks of covered individuals at certain
chemical facilities.
`Sec. 2116. Citizen enforcement.
`Sec. 2117. Citizen petitions.
`Sec. 2118. Notification system to address public concerns.
`Sec. 2119. Emergency response capacity study.
`Sec. 2120. Annual report to Congress.
`Sec. 2121. Authorization of appropriations.'.
(1) REPEAL- The Department of Homeland Security Appropriations Act,
2007 (Public Law 109-295) is amended by striking section 550.
(2) EFFECTIVE DATE- The amendment made by paragraph (1) shall take
effect on the date of the enactment of this Act.
(A) PROPOSED RULES- Not later that 6 months after the date of enactment
of this Act, the Secretary of Homeland Security shall issue proposed
rules to carry out title XXI of the Homeland Security Act of 2002,
as added by subsection (a).
(B) FINAL RULES- Not later than 18 months after the date of enactment
of this Act, the Secretary of Homeland Security shall issue final
rules to carry out title XXI of the Homeland Security Act of 2002,
as added by subsection (a).
(2) CONSULTATION- In developing and implementing the rules issued
under paragraph (1), the Secretary of Homeland Security shall consult
with the Administrator of the Environmental Protection Agency, and
other persons, as appropriate, regarding--
(A) the designation of substances of concern;
(B) methods to reduce the consequences of a terrorist attack;
(C) security at drinking water facilities and wastewater treatment
works;
(D) the treatment of protected information; and
(E) any other matters the Secretary determines necessary.
(3) SENSE OF CONGRESS REGARDING CFATS- It is the sense of Congress
that--
(A) the Secretary of Homeland Security was granted statutory authority
under section 550 of the Department of Homeland Security Appropriations
Act (Public Law 109-295) to regulate security practices at chemical
facilities until October 1, 2009; and
(B) under section 550 of the Department of Homeland Security Appropriations
Act (Public Law 109-295), the Secretary prescribed regulations known
as the Chemical Facility Anti-Terrorism Standards (referred to in
this section as `CFATS regulations').
(4) INTERIM USE AND AMENDMENT OF CFATS- Until the final rules issued
under paragraph (1) take effect, in carrying out title XXI of the
Homeland Security Act of 2002, as added by subsection (a), the Secretary
may, to the extent the Secretary determines appropriate--
(A) continue to carry out the CFATS regulations, as in effect on
the day before the date of the enactment of this Act;
(B) amend the CFATS regulations as may be necessary to ensure that
the CFATS regulations are consistent with this Act and the amendments
made by this Act; and
(C) continue using any tools developed for purposes of the CFATS
regulations, including the list of substances of concern, usually
referred to as `Appendix A', and the chemical security assessment
tool (which includes facility registration, a top-screen questionnaire,
a security vulnerability assessment tool, a site security plan template,
and a chemical vulnerability information repository).
(5) UPDATE OF FACILITY PLANS ASSESSMENTS AND PLANS PREPARED UNDER
CFATS- The owner or operator of a covered chemical facility that,
before the effective date of the final regulations issued under paragraph
(1), submits a security vulnerability assessment or site security
plan under the CFATS regulations, shall be required to update or amend
the security vulnerability assessment and site security plan of the
facility to reflect any additional requirements under this Act or
the amendments made by this Act, according to a timeline established
by the Secretary.
(e) Review of Designation of Sodium Fluoroacetate as a Substance of
Concern- The Secretary of Homeland Security shall review the designation
of sodium fluoroacetate as a substance of concern under section 2102(d)
of the Homeland Security Act of 2002, as added by subsection (a), by
the earlier of--
(1) the date of the first periodic review conducted under section
2102(d) of the Homeland Security Act of 2002; and
(2) the date that is 1 year after the date of enactment of this Act.
END
