HR 5577
110th CONGRESS
2d Session
H. R. 5577
To amend the Homeland Security Act of 2002 to extend, modify, and
recodify the authority of the Secretary of Homeland Security to enhance security
and protect against acts of terrorism against chemical facilities, and for
other purposes.
IN THE HOUSE OF REPRESENTATIVES
March 11, 2008
Mr. THOMPSON of Mississippi (for himself, Ms. JACKSON-LEE of Texas, Mr. MARKEY,
Ms. LORETTA SANCHEZ of California, Mr. DICKS, Ms. HARMAN, Mr. DEFAZIO, Mrs.
LOWEY, Ms. NORTON, Ms. ZOE LOFGREN of California, Mrs. CHRISTENSEN, Mr. ETHERIDGE,
Mr. LANGEVIN, Mr. CUELLAR, Mr. CARNEY, Ms. CLARKE, Mr. AL GREEN of Texas,
Mr. PERLMUTTER, and Mr. PASCRELL) introduced the following bill; which was
referred to the Committee on Homeland Security, and in addition to the Committee
on Energy and Commerce, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall within
the jurisdiction of the committee concerned
A BILL
To amend the Homeland Security Act of 2002 to extend, modify, and
recodify the authority of the Secretary of Homeland Security to enhance security
and protect against acts of terrorism against chemical facilities, and for
other purposes.
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 `Chemical Facility Anti-Terrorism Act of 2008'.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings- Congress makes the following findings:
(1) The Nation's chemical sector represents a target that terrorists could
exploit to cause consequences, including death, injury, or serious adverse
effects to human health, the environment, critical infrastructure, national
security, the national economy, and public welfare.
(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 pursuant
to section 550 of the Department of Homeland Security Appropriations Act,
2007 (Public Law 109-295) 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
called the Chemical Facility Anti-Terrorism Standards (hereinafter referred
to in this section as `CFATS'), which became effective on June 8, 2007.
(5) Such regulations, which are in the process of being implemented by the
Secretary, largely address the concerns of Congress with respect to chemical
facility security.
(6) However, under current law, the statutory authority of the Secretary
of Homeland Security to regulate security practices at chemical facilities
and the CFATS regulations will sunset in October of 2009.
(b) Purpose- The purpose of this Act is to give permanent status to the CFATS
regulations and to provide additional Congressional guidance for the future
implementation of such regulations.
SEC. 3. SENSE OF CONGRESS.
(a) Sense of Congress With Respect to CFATS Regulations- It is the sense of
Congress that--
(1) the Secretary of Homeland Security should develop and administer all
requirements of this Act to extend and modify the regulations called the
Chemical Facility Anti-Terrorism Standards (hereinafter referred to in this
section as `CFATS'), as in effect on the date of the enactment of this Act;
and
(2) in carrying out this Act, the Secretary should use such rules, regulations,
or tools developed for purposes of the CFATS regulations as the Secretary
determines are appropriate, including the list of chemicals of concern under
Appendix A and the Top Screen tool used to determine which facilities are
covered facilities under such regulations.
(b) Sense of Congress With Respect to Chemical Security- It is the sense of
Congress that--
(1) the Secretary of Homeland Security should take a holistic approach to
securing sources of chemicals against a terrorist attack, which should not
only secure the physical facilities at which hazardous chemicals are stored
or manufactured, but should also secure the supply chain of such chemicals;
and
(2) in keeping with the direction that Congress has previously issued to
the Secretary to address various aspects of the supply of hazardous chemicals,
the Secretary should expediently exercise the Secretary's existing authority
to ensure that by focusing on chemicals at fixed-site facilities, risk is
not transferred to other potential sources of such chemicals.
SEC. 4. 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 new title:
`TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES
`SEC. 2101. DEFINITIONS.
`In this title, the following definitions apply:
`(1) The term `chemical facility' means any facility--
`(A) at which a chemical is or may be used, stored, manufactured, processed
or distributed; and
`(B) for which the Secretary requires the owner or operator of the chemical
facility to submit information pursuant to section 2102(b)(2).
`(2) The term `chemical facility security performance standard' means a
risk-based standard established by the Secretary to ensure or enhance the
security of a chemical facility against a chemical facility terrorist incident
that is designed to address--
`(A) restricting the area perimeter;
`(B) securing site assets;
`(C) screening and controlling access to the facility and to restricted
areas within the facility by screening or inspecting individuals and vehicles
as they enter, including--
`(i) measures to deter the unauthorized introduction of dangerous substances
and devices that may facilitate a chemical facility terrorist incident
or actions having serious negative consequences for the population surrounding
the chemical facility; and
`(ii) measures implementing a regularly updated identification system
that checks the identification of chemical facility personnel and other
persons seeking access to the chemical facility and that discourages
abuse through established disciplinary measures;
`(D) methods to deter, detect, and delay a chemical facility terrorist
incident, creating sufficient time between detection of a chemical facility
terrorist incident and the point at which the chemical facility terrorist
incident becomes successful, including measures to--
`(i) deter vehicles from penetrating the chemical facility perimeter,
gaining unauthorized access to restricted areas, or otherwise presenting
a hazard to potentially critical targets;
`(ii) deter chemical facility terrorist incidents through visible, professional,
well-maintained security measures and systems, including security personnel,
detection systems, barriers and barricades, and hardened or reduced
value targets;
`(iii) detect chemical facility terrorist incidents at early stages
through counter surveillance, frustration of opportunity to observe
potential targets, surveillance and sensing systems, and barriers and
barricades; and
`(iv) delay a chemical facility terrorist incident for a sufficient
period of time so as to allow appropriate response through on-site security
response, barriers and barricades, hardened targets, and well-coordinated
response planning;
`(E) securing and monitoring the shipping, receipt, and storage of a substance
of concern for the chemical facility;
`(F) deterring theft or diversion of a substance of concern;
`(G) deterring insider sabotage;
`(H) deterring cyber sabotage, including by preventing unauthorized onsite
or remote access to critical process controls, including supervisory control
and data acquisition systems, distributed control systems, process control
systems, industrial control systems, critical business systems, and other
sensitive computerized systems;
`(I) developing an emergency plan to respond to chemical facility terrorist
incidents with the guidance of the Secretary that includes, as appropriate,
an early warning system for local emergency response providers and the
community surrounding the facility, and exercising such plan internally
and with the assistance of local law enforcement officials and emergency
response providers to enhance the collective response to terrorism;
`(J) maintaining effective monitoring, communications, and warning systems,
including--
`(i) measures designed to ensure that security systems and equipment
are in good working order and inspected, tested, calibrated, and otherwise
maintained;
`(ii) measures designed to regularly test security systems, note deficiencies,
correct for detected deficiencies, and record results so that they are
available for inspection by the Department; and
`(iii) measures to allow the chemical facility to promptly identify
and respond to security system and equipment failures or malfunctions;
`(K) ensuring mandatory annual security training, exercises, and drills
of chemical facility personnel;
`(L) performing personnel surety for individuals with access to restricted
areas or critical assets by conducting appropriate background checks and
ensuring appropriate credentials for unescorted visitors and chemical
facility personnel, including permanent and part-time personnel, temporary
personnel, and contract personnel, including--
`(i) measures designed to verify and validate identity;
`(ii) measures designed to check criminal history;
`(iii) measures designed to verify and validate legal authorization
to work; and
`(iv) measures designed to identify people with terrorist ties;
`(M) escalating the level of protective measures for periods of elevated
threat;
`(N) specific threats, vulnerabilities, or risks identified by the Secretary
for that chemical facility;
`(O) reporting of significant security incidents to the Department and
to appropriate local law enforcement officials;
`(P) identifying, investigating, reporting, and maintaining records of
significant security incidents and suspicious activities in or near the
site;
`(Q) establishing one or more officials and an organization responsible
for security and for compliance with these standards;
`(R) maintaining appropriate records relating to the security of the facility;
`(S) assessing, as appropriate, or utilizing methods to reduce the consequences
of a terrorist attack; or
`(T) any additional security performance standards the Secretary may specify.
`(3) The term `chemical facility terrorist incident' means an act or attempted
act of terrorism committed at, near, or against a chemical facility, including--
`(A) the release of a substance of concern from a chemical facility into
the surrounding area as a consequence of an act of terrorism;
`(B) the obtaining of a substance of concern by any person for the purpose
of using the substance at a location other than the chemical facility
in furtherance of an act of terrorism; or
`(C) the sabotage of a chemical facility or a substance of concern at
a chemical facility in furtherance of an act of terrorism.
`(4) The term `employee representative' means a representative of the certified
or recognized bargaining agent engaged in a collective bargaining relationship
with a private or public owner or operator of a chemical facility.
`(5) The term `covered individual' means a permanent, temporary, full-time,
or part-time employee of a covered chemical facility or an employee of an
entity with which the covered chemical facility has entered into a contract
who is performing responsibilities at the facility pursuant to the contract.
`(6) The term `covered chemical facility' means a chemical facility that
the Secretary assigns to a risk-based tier under section 2102(c) that is
required to submit a security vulnerability assessment and site security
plan under section 2103.
`(7) The term `environment' has the meaning given the term in section 101
of the Comprehensive Environmental Response Compensation and Liability Act
of 1980 (42 U.S.C. 9601).
`(8) The term `owner or operator of a chemical facility' means any of the
following:
`(A) The person who owns a chemical facility.
`(B) The person who leases such a facility.
`(C) The person who operates such a facility.
`(9) The term `release' has the meaning given the term in section 101 of
the Comprehensive Environmental Response Compensation and Liability Act
of 1980 (42 U.S.C. 9601).
`(10) The term `substance of concern' means a chemical substance in quantity
and form that is designated by the Secretary under section 2102(a) as a
chemical substance that poses a risk of being used in furtherance of a chemical
facility terrorist incident.
`(11) The term `method to reduce the consequences of a terrorist attack'
includes--
`(B) catalyst or carrier substitution;
`(C) process redesign (including reuse or recycling of a substance of
concern);
`(D) product reformulation;
`(E) procedure simplification;
`(F) technology modification;
`(G) use of less hazardous substances or benign substances;
`(H) use of smaller quantities of substances of concern;
`(I) reduction of hazardous pressures or temperatures;
`(J) reduction of the possibility and potential consequences of equipment
failure and human error;
`(K) improvement of inventory control and chemical use efficiency; and
`(L) reduction or elimination of the storage, transportation, handling,
disposal, and discharge of substances of concern.
`SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF CHEMICAL FACILITIES.
`(a) Substances of Concern-
`(1) DESIGNATION BY THE SECRETARY- The Secretary may designate any chemical
substance as a substance of concern and establish and revise the threshold
quantity for a substance of concern.
`(2) MATTERS FOR CONSIDERATION- In designating a chemical substance or establishing
or adjusting the threshold quantity for a chemical substance under paragraph
(1), the Secretary shall consider the potential extent of death, injury,
and serious adverse effects to human health, the environment, critical infrastructure,
national security, the national economy, and public welfare that would result
from a chemical facility terrorist incident.
`(b) List of Covered Chemical Facilities-
`(1) CRITERIA FOR LIST OF FACILITIES- The Secretary shall maintain a list
of covered chemical facilities that the Secretary determines are of sufficient
security risk for inclusion on the list based on the following criteria:
`(A) The potential threat or likelihood that the chemical facility will
be the target of a chemical facility terrorist incident.
`(B) The potential extent and likelihood of death, injury, or serious
adverse effects to human health, the environment, critical infrastructure,
national security, the national economy, and public welfare that could
result from a chemical facility terrorist incident.
`(C) The proximity of the chemical facility to population centers.
`(2) SUBMISSION OF INFORMATION- The Secretary may require the submission
of information with respect to the quantities of substances of concern that
are used, stored, manufactured, processed, or distributed by any chemical
facility to determine whether to designate a chemical facility as a covered
chemical facility for purposes of this title.
`(c) Assignment of Chemical Facilities to Risk-Based Tiers-
`(1) ASSIGNMENT- The Secretary shall assign each covered chemical facility
to one of at least four risk-based tiers established by the Secretary.
`(2) PROVISION OF INFORMATION- The Secretary may request, and the owner
or operator of a covered chemical facility shall provide, any additional
information beyond any information required to be submitted under subsection
(b)(2) that is needed for the Secretary to assign the chemical facility
to the appropriate tier under paragraph (1).
`(3) HIGH-RISK CHEMICAL FACILITIES- At least one of the tiers established
by the Secretary for the assignment of chemical facilities under this subsection
shall be a tier designated for high-risk chemical facilities.
`(4) AUTHORITY TO REVIEW- The Secretary shall periodically review the criteria
under subsection (b)(1) and may, at any time, determine whether a chemical
facility is a covered chemical facility or is no longer a covered chemical
facility or change the tier assignment under paragraph (1) of any covered
chemical facility.
`(5) NOTIFICATION- Not later than 60 days after the date on which the Secretary
determines that a chemical facility is a covered chemical facility or is
no longer a covered chemical facility or changes the tier assignment under
paragraph (1) of a covered chemical facility, the Secretary shall notify
the owner or operator of that chemical facility of that determination or
change together with the reason for the determination or change.
`SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND SITE SECURITY PLANS.
`(a) Security Vulnerability Assessment and Site Security Plan Required for
Covered Chemical Facilities-
`(1) REQUIREMENT FOR SECURITY VULNERABILITY ASSESSMENT AND SITE SECURITY
PLAN- The Secretary shall--
`(A) establish standards, protocols, and procedures for security vulnerability
assessments and site security plans to be required for covered chemical
facilities;
`(B) provide to the owner or operator of each covered chemical facility--
`(i) the number of individuals at risk of death, injury, or severe adverse
effects to human health as a result of a worst case chemical facility
terrorist incident at the covered chemical facility;
`(ii) information related to the criticality of the covered chemical
facility for purposes of assessing the degree to which the facility
is critical to the economy or national security of the United States;
`(iii) the proximity or interrelationship of the covered chemical facility
to other critical infrastructure, including any utility or infrastructure
(including transportation) upon which the chemical facility relies to
operate safely and securely; and
`(iv) recommended best practices for securing chemical facilities;
`(C) require the owner or operator of each such covered chemical facility
to--
`(i) conduct an assessment of the vulnerability of the covered chemical
facility to a chemical facility terrorist incident;
`(ii) prepare and implement a site security plan for that covered chemical
facility that addresses the security vulnerability assessment and the
risk-based chemical security performance standards under subsection
(c); and
`(iii) include appropriate supervisory and non-supervisory employees
of the covered chemical facility, and any employee representatives,
as appropriate, in developing the security vulnerability assessment
and site security plan required under this clause; and
`(D) set deadlines for the completion of security vulnerability assessments
and site security plans.
`(2) CRITERIA- The Secretary shall ensure that the requirements under paragraph
(1)--
`(B) are performance-based; and
`(C) take into consideration--
`(i) the cost and technical feasibility of compliance by a covered chemical
facility with the requirements under this title;
`(ii) the different quantities and forms of substances of concern stored,
used, and handled at covered chemical facilities; and
`(iii) the criteria under section 2102(a)(2).
`(b) Minimum Requirements for High-Risk Chemical Facilities-
`(1) REQUIREMENTS FOR SECURITY VULNERABILITY ASSESSMENTS- In the case of
a covered chemical facility assigned to a high-risk tier under section 2102(c)(3),
the Secretary shall require that the security vulnerability assessment required
under this section for that chemical facility include each of the following:
`(A) The identification of any hazard that could result from a chemical
facility terrorist incident at the facility.
`(B) Any vulnerability of the chemical facility with respect to--
`(ii) programmable electronic devices, computers, computer or communications
networks, Supervisory Control and Data Acquisition systems, Process
Control Systems, or other automated systems used by the chemical facility;
`(iii) alarms, cameras, and other protection systems;
`(iv) communication systems;
`(v) insider threats; and
`(vi) the structural integrity of equipment for storage, handling, and
other purposes.
`(C) Consideration of information relating to threats relevant to the
chemical facility that is provided by the Secretary in accordance with
paragraph (3).
`(D) Such other information as the Secretary determines is appropriate.
`(2) REQUIREMENTS FOR SITE SECURITY PLANS- In the case of a covered chemical
facility assigned to a high-risk tier under section 2102(c)(3), the Secretary
shall require that the site security plan required under this section for
that chemical facility include each of the following:
`(A) A description of security measures selected by the facility that--
`(i) address the vulnerabilities of the facility identified in the security
vulnerability assessment; and
`(ii) meet the risk-based chemical facility security performance standards
established by the Secretary.
`(B) A plan and schedule for periodic drills and exercises to be conducted
at the chemical facility the development and execution of which includes
participation by appropriate supervisory and non-supervisory facility
employees and any employee representatives, local law enforcement agencies,
and emergency response providers.
`(C) Equipment, plans, and procedures to be implemented or used by or
at the chemical facility in the event of a chemical facility terrorist
incident that affects the facility, including site evacuation, release
mitigation, and containment plans.
`(D) An identification of any steps taken to coordinate with State, local,
and tribal law enforcement agencies, emergency response providers, the
Department and other Federal agencies, and Federal officials on security
measures and plans for the collective response to a chemical facility
terrorist incident.
`(E) A specification of the security officer who will be the point of
contact for incident management purposes and for Federal, State, local,
and tribal law enforcement and emergency response providers.
`(F) A description of enhanced security measures to be used during periods
of time when the Secretary determines that heightened terrorist threat
conditions exist.
`(G) An assessment and, as appropriate, a plan to implement methods to
reduce the consequences of a terrorist attack.
`(3) PROVISION OF THREAT-RELATED INFORMATION-
`(A) RESPONSIBILITIES OF THE SECRETARY- The Secretary shall provide in
a timely manner, to the maximum extent practicable under applicable authority
and in the interests of national security, to an owner, operator, or security
officer of a chemical facility assigned to the high-risk tier under section
2102(c)(3), or another appropriate person, threat information that is
relevant to that chemical facility, including an assessment of the most
likely method that could be used by terrorists to exploit any vulnerabilities
of the chemical facility and the likelihood of the success of such method.
`(B) RESPONSIBILITIES OF OWNER OR OPERATOR- The Secretary shall require
the owner or operator of a covered chemical facility to provide in a timely
manner to the Secretary a full report on any intentional, attempted, or
accidental penetration of the physical security or cyber security of the
covered chemical facility.
`(4) RED TEAM EXERCISES- The Secretary shall conduct red team exercises
at chemical facilities selected by the Secretary that have been assigned
to a high-risk tier under section 2102(c)(3). The Secretary shall ensure
that each such facility shall undergo a red team exercise during the six-year
period that begins on the effective date of the regulations prescribed to
carry out this title. The exercises required under this paragraph shall
be--
`(A) conducted after informing the owner or operator and any employee
representative of the selected chemical facility and receiving positive
confirmation from such owner or operator and employee representative,
if any;
`(B) designed to identify at the selected chemical facility--
`(i) any vulnerabilities of the chemical facility;
`(ii) possible methods of a chemical facility terrorist incident at
that facility; and
`(iii) any weaknesses in the security plan of the chemical facility;
and
`(C) conducted so as not to compromise the security or safety of the chemical
facility during the exercises.
`(5) PROVISION OF TECHNICAL GUIDANCE- The Secretary shall provide, upon
request, assistance and guidance to a covered chemical facility conducting
a security vulnerability assessment or site security plan required under
this section.
`(c) Risk-Based Chemical Security Performance Standards-
`(1) IN GENERAL- The Secretary shall establish risk-based chemical security
performance standards for the site security plans required to be prepared
by covered chemical facilities. The standards shall--
`(A) require separate and increasingly stringent risk-based chemical security
performance standards for site security plans as the level of risk associated
with the tier increases; and
`(B) permit each covered chemical facility submitting a site security
plan to select a combination of security measures that satisfy the risk-based
chemical security performance standards established by the Secretary under
this subsection.
`(2) CRITERIA- In establishing the risk-based chemical security performance
standards under paragraph (1), the Secretary shall consider the criteria
under subsection (a)(2).
`(3) GUIDANCE- The Secretary shall provide guidance to each covered chemical
facility regarding the types of security performance measures that, if applied,
could satisfy the requirements under this section, including measures using
methods to reduce the consequences of a terrorist attack that, if applied,
could result in the Secretary removing the facility from the list or assigning
the facility to a lower risk tier.
`(d) Co-Located Chemical Facilities- The Secretary shall allow the owner or
operator of two or more chemical facilities that are located geographically
close to each other or otherwise co-located to develop and implement coordinated
security vulnerability assessments and site security plans, at the discretion
of the owner or operator of the chemical facilities.
`(e) Alternate Security Programs Satisfying Requirements for Security Vulnerability
Assessment and Site Security Plan-
`(1) DETERMINATION BY THE SECRETARY- In response to a request by an owner
or operator of a covered chemical facility, or at the discretion of the
Secretary, the Secretary may accept an alternative security program that
the Secretary determines meets all or part of the requirements of this section
and that provides for an equivalent level of security to the level of security
provided for by the requirements of this title.
`(2) USE OF ALTERNATE SECURITY PROGRAMS-
`(A) USE BY INDIVIDUAL CHEMICAL FACILITIES- Upon review and written determination
by the Secretary under paragraph (1) that the alternate security program
of a covered chemical facility subject to the requirements of this section
satisfies some or all of the requirements of this section, the chemical
facility may use that alternate security program.
`(B) USE BY CLASSES OF CHEMICAL FACILITIES- At the discretion of the Secretary,
the Secretary may identify a class or category of covered chemical facilities
subject to the requirements of this section that may use an alternate
security program recognized under this section in order to comply with
all or part of the requirements of this section.
`(3) PARTIAL RECOGNITION- If the Secretary finds that an alternate security
program satisfies only part of the requirements of this section, the Secretary
may allow a covered chemical facility subject to the requirements of this
section to comply with that alternate security program for purposes of that
requirement, but shall require the covered chemical facility to submit any
additional information required to satisfy the requirements of this section
not met by that alternate security program.
`(4) NOTIFICATION- If the Secretary does not approve an alternate security
program for which a petition is submitted under paragraph (1), the Secretary
shall provide to the person submitting a petition under paragraph (1) written
notification that includes an explanation of the reasons why the approval
was not made.
`(5) REVIEW REQUIRED- Nothing in this subsection shall relieve the Secretary
of the obligation--
`(A) to review a security vulnerability assessment and site security plan
submitted by a covered chemical facility under this section; and
`(B) to approve or disapprove each such assessment or plan on an individual
basis.
`(1) OTHER PROVISIONS OF LAW- A covered chemical facility that is required
to prepare a security vulnerability assessment or site security plan or
to submit or develop other relevant documents under chapter 701 of title
46, United States Code, the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.), or section 1433 of the Safe Drinking Water Act (42 U.S.C.
300i-2) shall submit such plan or documents to the Secretary. The Secretary
shall determine the extent to which actions taken by such a chemical facility
pursuant to another provision of law fulfill the requirements of this section
and may require such a chemical facility to complete any additional action
required by this section. The Secretary shall work with the heads of the
other Federal departments and agencies with authority with respect to such
a covered chemical facility to ensure that requirements under other provisions
of law and the requirements under this title are non-duplicative and non-contradictory.
`(2) COORDINATION OF STORAGE LICENSING OR PERMITTING REQUIREMENT- In the
case of any storage required to be licensed or permitted under chapter 40
of title 18, United States Code, the Secretary shall prescribe the rules
and regulations for the implementation of this section with the concurrence
of the Attorney General and avoid unnecessary duplication of regulatory
requirements.
`(1) DESCRIPTION OF ROLE REQUIRED- As appropriate, security vulnerability
assessments or site security plans required under this section should describe
the roles or responsibilities that chemical facility employees are expected
to perform to deter or respond to a chemical facility terrorist incident.
`(2) TRAINING FOR EMPLOYEES- The owner or operator of a covered facility
required to submit a site security plan under this section shall annually
provide each employee of the facility with a minimum of 8 hours of training.
Such training shall include--
`(A) an identification and discussion of substances of concern that pose
a risk to the workforce, emergency response providers, and the community;
`(B) a discussion of the prevention, preparedness, and response plan for
the facility, including off-site consequence impacts;
`(C) an identification of opportunities to reduce or eliminate the vulnerability
of the facility to a terrorist incident through the use of methods to
reduce the consequences of a terrorist attack; and
`(D) a discussion and practice of appropriate emergency response procedures.
`SEC. 2104. RECORD KEEPING; SITE INSPECTIONS.
`(a) Record Keeping- The Secretary shall require each covered chemical facility
required to submit a security vulnerability assessment or site security plan
under section 2103 to maintain a current copy of the assessment and the plan
at the chemical facility.
`(b) Right of Entry- For purposes of carrying out this title, the Secretary
(or a designee of the Secretary) shall have, at a reasonable time and on presentation
of credentials, a right of entry to, on, or through any property of a covered
chemical facility or any property on which any record required to be maintained
under this section is located.
`(c) Inspections and Verifications-
`(1) IN GENERAL- The Secretary shall, at such time and place as the Secretary
determines to be reasonable and appropriate, conduct or require the conduct
of chemical facility security inspections and verifications and may, by
regulation, authorize third-party inspections and verifications by persons
trained and certified by the Secretary for that purpose.
`(2) REQUIREMENTS- To ensure and evaluate compliance with this title, including
any regulations or requirements adopted by the Secretary in furtherance
of the purposes of this title, in conducting or requiring an inspection
or verification under paragraph (1), the Secretary shall--
`(A) consult with owners, operators, and supervisory and non-supervisory
employees of the covered chemical facility, and any employee representatives,
as appropriate; and
`(B) provide an opportunity to such owners, operators, employees, and
employee representatives to be present during the inspection or verification
for the purpose of providing assistance when and where it is appropriate.
`(d) Requests for Records-
`(1) IN GENERAL- In carrying out this title, the Secretary (or a designee
of the Secretary) may require the submission of or, on presentation of credentials,
may at reasonable times obtain access to and copy any documentation necessary
for--
`(A) reviewing or analyzing a security vulnerability assessment or site
security plan submitted under section 2103; or
`(B) implementing such a site security plan.
`(2) PROPER HANDLING OF RECORDS- In accessing or copying any documentation
under paragraph (1), the Secretary (or a designee of the Secretary) shall
ensure that the documentation is handled and secured appropriately.
`(e) Provision of Records to Employee Representatives- If a covered chemical
facility required to submit a security vulnerability assessment or site security
plan submitted under section 2103 has an employee representative, the owner
or operator of the facility shall provide the employee representative with
a copy of any security vulnerability assessment or site security plan submitted.
The employee representative shall ensure that any such assessment or plan
provided to the representative is handled and secured appropriately in accordance
with section 2108.
`(f) Compliance- If the Secretary determines that an owner or operator of
a covered chemical facility required to submit a security vulnerability assessment
or site security plan under section 2103 fails to maintain, produce, or allow
access to records or to the property of the covered chemical facility as required
by this section, the Secretary shall issue an order requiring compliance with
this section.
`SEC. 2105. ENFORCEMENT.
`(a) Submission of Information-
`(1) INITIAL SUBMISSION- The Secretary shall establish specific deadlines
for the submission to the Secretary of the security vulnerability assessments
and site security plans required under this title. The Secretary may establish
different submission requirements for the different tiers of chemical facilities
under section 2102(c).
`(2) MAJOR CHANGES REQUIREMENT- The Secretary shall establish specific deadlines
and requirements for the submission by a covered chemical facility of information
describing--
`(A) any change in the use by the covered chemical facility of more than
a threshold amount of any substance of concern that could affect the requirements
of the chemical facility under this title; and
`(B) any significant change in a security vulnerability assessment or
site security plan submitted by the covered chemical facility.
`(3) PERIODIC REVIEW BY CHEMICAL FACILITY REQUIRED- The Secretary shall
require the owner or operator of a covered chemical facility required to
submit a security vulnerability assessment or site security plan under this
section to periodically submit to the Secretary a review of the adequacy
of the security vulnerability assessment or site security plan that includes
a description of any changes made to the security vulnerability assessment
or site security plan.
`(b) Review of Site Security Plan-
`(1) DEADLINE FOR REVIEW- Not later than 180 days after the date on which
the Secretary receives a security vulnerability assessment or site security
plan under this title, the Secretary shall review and approve or disapprove
such assessment or plan.
`(2) DISAPPROVAL- The Secretary shall disapprove a security vulnerability
assessment or site security plan if the Secretary determines that--
`(A) the security vulnerability assessment or site security plan does
not comply with the requirements under section 2103; or
`(B) in the case of a site security plan, the plan or the implementation
of the plan is insufficient to address any vulnerabilities identified
in a security vulnerability assessment of the covered chemical facility
or associated oversight actions taken under section 2103 or section 2104,
including a red team exercise.
`(3) PROVISION OF NOTIFICATION OF DISAPPROVAL- If the Secretary disapproves
the security vulnerability assessment or site security plan submitted by
a covered chemical facility under this title or the implementation of a
site security plan by such a chemical facility, the Secretary shall--
`(A) provide the owner or operator of the covered chemical facility a
written notification of the disapproval, that--
`(i) includes a clear explanation of deficiencies in the assessment,
plan, or implementation of the plan; and
`(ii) requires the owner or operator of the covered chemical facility
to revise the assessment or plan to address any deficiencies and, by
such date as the Secretary determines is appropriate, to submit to the
Secretary the revised assessment or plan;
`(B) provide guidance to assist the owner or operator of the covered chemical
facility in addressing such deficiency;
`(C) in the case of a covered chemical facility for which the owner or
operator of the facility does not address such deficiencies by such date
as the Secretary determines to be appropriate, issue an order requiring
the owner or operator to correct specified deficiencies by a specified
date; and
`(D) in the case of a covered chemical facility assigned to a high-risk
tier under section 2102(c)(3), upon the request of the owner or operator
of the facility, consult with the owner or operator to identify appropriate
steps to be taken by the owner or operator to address the deficiencies
identified by the Secretary.
`(4) ORDER TO CEASE OPERATIONS- If the Secretary determines that the owner
or operator of a chemical facility assigned to a high-risk tier under section
2102(c)(3) continues to be in noncompliance after an order for compliance
is issued under paragraph (3), the Secretary may issue an order to the owner
or operator to cease operations at the facility until the owner or operator
complies with the order issued under paragraph (3). Notwithstanding the
preceding sentence, the Secretary may not issue an order to cease operations
under this paragraph to the owner or operator of a drinking water or wastewater
facility unless the Secretary determines that continued operation of the
facility represents a clear and present danger to homeland security.
`(1) ESTABLISHMENT- The Secretary shall establish, and provide information
to the public regarding a process by which any person may submit a report
to the Secretary regarding problems, deficiencies, or vulnerabilities at
a covered chemical facility associated with the risk of a chemical facility
terrorist incident.
`(2) CONFIDENTIALITY- The Secretary shall keep confidential the identity
of a person that submits a report under paragraph (1) and any such report
shall be treated as protected information under section 2108(f) to the extent
that it does not consist of publicly available information.
`(3) ACKNOWLEDGMENT OF RECEIPT- If a report submitted under paragraph (1)
identifies the person submitting the report, the Secretary shall respond
promptly to such person to acknowledge receipt of the report.
`(4) STEPS TO ADDRESS PROBLEMS- The Secretary shall review and consider
the information provided in any report submitted under paragraph (1) and
shall take appropriate steps under this title to address any problem, deficiency,
or vulnerability identified in the report.
`(d) Retaliation Prohibited-
`(1) PROHIBITION- No owner or operator of a chemical facility, profit or
not-for-profit corporation, association, or any contractor, subcontractor
or agent thereof, or a Federal, State, local, or tribal government agency
may discharge any employee or otherwise discriminate against any employee
with respect to his compensation, terms, conditions, security clearance
or other access to classified or sensitive information, or other privileges
of employment because the employee (or any person acting pursuant to a request
of the employee)--
`(A) notified the Secretary, the owner or operator of a chemical facility,
or the employee's employer of an alleged violation of this title, including
communications related to carrying out the employee's job duties;
`(B) refused to engage in any practice made unlawful by this title, if
the employee has identified the alleged illegality to the employer;
`(C) testified before or otherwise provided information relevant for Congress
or for any Federal or State proceeding regarding any provision (or proposed
provision) of this title;
`(D) commenced, caused to be commenced, or is about to commence or cause
to be commenced a proceeding under this title;
`(E) testified or is about to testify in any such proceeding; or
`(F) assisted or participated or is about to assist or participate in
any manner in such a proceeding or in any other manner in such a proceeding
or in any other action to carry out the purposes of this title.
`(2) ENFORCEMENT ACTION- Any employee covered by this section who alleges
discrimination by an employer in violation of subsection (a) may bring an
action governed by the rules and procedures, legal burdens of proof, and
remedies applicable under subsections (c) through (g) of section 20109 of
title 49, United States Code.
`SEC. 2106. PENALTIES.
`(1) IN GENERAL- The Secretary may bring an action in a United States district
court against any owner or operator of a chemical facility that violates
or fails to comply with--
`(A) any order issued by the Secretary under this title; or
`(B) any site security plan approved by the Secretary under this title.
`(2) RELIEF- In any action under paragraph (1), a court may issue an order
for injunctive relief and may award a civil penalty of not more than $50,000
for each day on which a violation occurs or a failure to comply continues.
`(b) Penalties for Unauthorized Disclosure- Any officer or employee of a Federal,
State, local, or tribal government agency who, in a manner or to an extent
not authorized by law, knowingly discloses any record containing protected
information described in section 2108(f) shall--
`(1) be imprisoned not more than 1 year, fined under chapter 227 of title
18, United States Code, or both; and
`(2) if an officer or employee of the Government, be removed from Federal
office or employment.
`(c) Treatment of Information in Adjudicative Proceedings- In a proceeding
under this title, information protected under section 2108, or related vulnerability
or security information, shall be treated in any judicial or administrative
action as if the information were classified material.
`SEC. 2107. FEDERAL PREEMPTION.
`(a) In General- Nothing in this title shall preclude or deny any right of
any State or political subdivision thereof to adopt or enforce any regulation,
requirement, or standard of performance with respect to chemical facility
security to deter, detect, or respond to a chemical facility terrorist incident
that is more stringent than a regulation, requirement, or standard of performance
issued pursuant to this title, or shall otherwise impair any right or jurisdiction
of any State or political subdivision thereof with respect to chemical facilities
within that State or political subdivision thereof unless a direct conflict
exists between this title and the regulation, requirement, or standard of
performance issued by a State or political subdivision thereof.
`(b) Other Requirements- Nothing in this title shall preclude or deny the
right of any State or political subdivision thereof to adopt or enforce any
regulation, requirement, or standard of performance relating to environmental
protection, health, or safety.
`SEC. 2108. PROTECTION OF INFORMATION.
`(a) Prohibition of Public Disclosure of Protected Information-
`(1) IN GENERAL- The Secretary shall ensure that protected information,
as described in subsection (f), is not disclosed except as provided in this
title.
`(2) SPECIFIC PROHIBITIONS- In carrying out paragraph (1), the Secretary
shall ensure that protected information is not disclosed--
`(A) by any Federal agency under section 552 of title 5, United States
Code; or
`(B) under any State or local law.
`(1) IN GENERAL- In carrying out the requirements of this title, the Secretary
shall prescribe such regulations, and may issue such orders, as necessary
to prohibit the unauthorized disclosure of protected information, as described
in subsection (f).
`(2) REQUIREMENTS- The regulations prescribed under paragraph (1) shall--
`(A) allow for information sharing, on a confidential basis, with and
between, Federal, State, local, and tribal law enforcement officials,
and emergency response providers, and appropriate supervisory and non-supervisory
chemical facility personnel, and employee representatives, if any, with
security, operational, or fiduciary responsibility for the facility;
`(B) provide for the confidential use of protected information in any
administrative or judicial proceeding, including placing under seal any
such information that is contained in any filing, order, or other document
used in such proceedings that could otherwise become part of the public
record;
`(C) limit access to protected information to persons designated by the
Secretary; and
`(D) ensure, to the maximum extent practicable, that--
`(i) protected information shall be maintained in a secure location;
and
`(ii) access to protected information shall be limited as may be necessary
to--
`(I) enable enforcement of this title; or
`(II) address an imminent and substantial threat to security or an
imminent chemical facility terrorist incident.
`(c) Other Obligations Unaffected- Nothing in this section affects any obligation
of the owner or operator of a chemical facility to submit or make available
information to facility employees, employee organizations, or a Federal, State,
tribal, or local government agency under, or otherwise to comply with, any
other law.
`(d) Submission of Information to Congress- Nothing in this title shall be
construed as authorizing the withholding of any information from Congress.
`(e) Disclosure of Independently Furnished Information- Nothing in this title
shall be construed as affecting any authority or obligation of a Federal agency
to disclose any record or information that the Federal agency obtains from
a chemical facility under any other law.
`(f) Protected Information-
`(1) IN GENERAL- For purposes of this section, protected information includes
the following:
`(A) The criteria and data used by the Secretary to assign chemical facilities
to risk-based tiers under section 2102 and the tier to which each such
facility is assigned.
`(B) The security vulnerability assessments and site security plans submitted
to the Secretary under this title.
`(C) Information concerning the risk-based chemical facility security
performance standards for a chemical facility under section 2103(c).
`(D) Any other information generated or collected by a Federal, State,
local, or tribal government agency or by a chemical facility for the purpose
of carrying out or complying with this title--
`(i) that describes any vulnerability of a chemical facility to an act
of terrorism;
`(ii) that describes the assignment of any chemical facility to a risk-based
tier under this title; or
`(iii) that describes any security measure (including any procedure,
equipment, training, or exercise) for the protection of a chemical facility
from an act of terrorism.
`(2) EXCLUSIONS- For purposes of this section, protected information does
not include--
`(A) information that is publicly available;
`(B) information that a chemical facility has disclosed other than in
accordance with this section; or
`(C) information that, if disclosed, would not be detrimental to the security
of a chemical facility.
`SEC. 2109. CERTIFICATION BY THIRD-PARTY ENTITIES.
`(a) Certification by Third-Party Entities- The Secretary may designate a
third-party entity to carry out any function under subsection (e)(5) of section
2103, subsection (b), (c), or (d) of section 2104, or subsection (b)(1) of
section 2105.
`(b) Qualifications- The Secretary shall establish standards for the qualifications
of third-party entities, including knowledge of physical infrastructure protection,
cybersecurity, chemical facility security, hazard analysis, chemical process
engineering, chemical process safety reviews, and other such factors that
the Secretary determines to be necessary.
`(c) Procedures and Requirements for Private Entities- Before designating
a third-party entity to carry out a function under subsection (a), the Secretary
shall--
`(1) develop, document, and update, as necessary, minimum standard operating
procedures and requirements applicable to such entities designated under
subsection (a), including--
`(A) conducting a 90-day independent review of the procedures and requirements
(or updates thereto) and the results of the analyses of such procedures
(or updates thereto) pursuant to subtitle G of title VIII; and
`(B) upon completion of the independent review under subparagraph (A),
designating any procedure or requirement (or any update thereto) as a
qualified anti-terrorism technology pursuant to section 862(b);
`(2) conduct safety and hazard analyses of the standard operating procedures
and requirements developed under paragraph (1);
`(3) conduct a review of the third-party entities' business engagements
to ensure that no conflict exists that could compromise the execution of
any functions under subsection (e)(5) of section 2103, subsection (b), (c),
or (d) of section 2104, or subsection (c)(1) of section 2105; and
`(4) conduct a review of the third-party entities' business practices and
disqualify any of these organizations that offer related auditing or consulting
services to chemical facilities as private sector vendors.
`(d) Ensuring Contracting With Certain Small Business Concerns-
`(1) REQUIREMENTS FOR PRIME CONTRACTS- The Secretary shall include in each
contract awarded to a third-party entity--
`(A) a requirement that the third-party entity develop and implement a
plan for the award of subcontracts, as appropriate, to small business
concerns and disadvantaged business concerns in accordance with other
applicable requirements, including the terms of such plan, as appropriate;
and
`(B) a requirement that the third-party entity shall submit to the Secretary,
during performance of the contract, periodic reports describing the extent
to which the contractor has complied with such plan, including specification
(by total dollar amount and by percentage of the total dollar value of
the contract) of the value of subcontracts awarded at all tiers of subcontracting
to small business concerns, including socially and economically disadvantaged
small businesses concerns, small business concerns owned and controlled
by service-disabled veterans, HUBZone small business concerns, small business
concerns eligible to be awarded contracts pursuant to section 8(a) of
the Small Business Act (15 U.S.C. 637(a)), and historically black colleges
and universities and Hispanic-serving institutions, tribal colleges and
universities, and other minority institutions.
`(2) DEFINITIONS- For purposes of this subsection:
`(A) The terms `socially and economically disadvantaged small businesses
concern', `small business concern owned and controlled by service-disabled
veterans', and `HUBZone small business concern' have the meaning given
such terms under the Small Business Act (15 U.S.C. 631 et seq.).
`(B) The term `historically black colleges and universities' means part
B institutions under title III of the Higher Education Act of 1965 (20
U.S.C. 1061).
`(C) The term `Hispanic-serving institution' has the meaning given such
term under title V of the Higher Education Act of 1965 (20 U.S.C. 1101a(a)(5)).
`(D) The term `tribal colleges and universities' has the meaning given
such term under the Tribally Controlled College or University Assistance
Act of 1978 (25 U.S.C. 1801 et seq.)).
`(3) UTILIZATION OF ALLIANCES- The Secretary shall, to the maximum extent
practicable, seek to facilitate the award of contracts to conduct certification
under subsection (a) to alliances of business concerns referred to in paragraph
(1)(B).
`(A) IN GENERAL- By not later than October 31 of each year, the Secretary
shall submit to the Committee on Homeland Security of the House of Representatives
and the Committee on Homeland Security and Governmental Affairs of the
Senate a report on the award of contracts to conduct certification under
subsection (a) to business concerns referred to in paragraph (1)(B) during
the fiscal year preceding the fiscal year in which the report is submitted.
`(B) CONTENTS- The Secretary shall include in each report under subparagraph
(A)--
`(i) a specification of the value of such contracts, by dollar amount
and as a percentage of the total dollar value of all contracts awarded
by the Department in such fiscal year;
`(ii) a specification of the total dollar value of such contracts awarded
to each of the categories of business concerns referred to in paragraph
(1)(B); and
`(iii) if the percentage of the total dollar value of contracts awarded
under this section specified under clause (i) is less than 25 percent,
an explanation of--
`(I) why the percentage is less than 25 percent; and
`(II) what will be done to ensure that the percentage for the following
fiscal year will not be less than 25 percent.
`(e) Technical Review and Approval- Not later than 60 days after the date
on which the results of the safety and hazard analysis of the standard operating
procedures and requirements are completed under subsection (c)(2), the Secretary
shall--
`(1) complete a technical review of the procedures and requirements (or
updates thereto) under sections 862(b) and 863(d)(2); and
`(2) approve or disapprove such procedures and requirements (or updates
thereto).
`(1) ISSUANCE OF CERTIFICATE OF CONFORMANCE- In accordance with section
863(d)(3), the Secretary shall issue a certificate of conformance to a third-party
entity to perform a function under subsection (a) if the entity--
`(A) demonstrates to the satisfaction of the Secretary the ability to
perform functions in accordance with standard operating procedures and
requirements (or updates thereto) approved by the Secretary under this
section;
`(i) perform such function in accordance with such standard operating
procedures and requirements (or updates thereto); and
`(ii) maintain liability insurance coverage at policy limits and in
accordance with conditions to be established by the Secretary pursuant
to section 864; and
`(C) signs an agreement to protect the proprietary and confidential information
of any chemical facility with respect to which the entity will perform
such function.
`(2) LITIGATION AND RISK MANAGEMENT PROTECTIONS- A third-party entity that
maintains liability insurance coverage at policy limits and in accordance
with conditions to be established by the Secretary pursuant to section 864
and receives a certificate of conformance under paragraph (1) shall receive
all applicable litigation and risk management protections under sections
863 and 864.
`(3) RECIPROCAL WAIVER OF CLAIMS- A reciprocal waiver of claims shall be
deemed to have been entered into between a third-party entity that receives
a certificate of conformance under paragraph (1) and its contractors, subcontractors,
suppliers, vendors, customers, and contractors and subcontractors of customers
involved in the use or operation of any function performed by the third-party
entity under subparagraph (a).
`(4) INFORMATION FOR ESTABLISHING LIMITS OF LIABILITY INSURANCE- A third-party
entity seeking a certificate of conformance under paragraph (1) shall provide
to the Secretary necessary information for establishing the limits of liability
insurance required to be maintained by the entity under section 864(a).
`(g) Monitoring- The Secretary shall regularly monitor and inspect the operations
of a third-party entity that performs a function under subsection (a) to ensure
that the entity is meeting the minimum standard operating procedures and requirements
established under subsection (c) and any other applicable requirement under
this section.
`SEC. 2110. METHODS TO REDUCE THE CONSEQUENCES OF A TERRORIST ATTACK.
`(a) Assessment Required- The owner or operator of a covered chemical facility
shall include in the site security plan conducted pursuant to section 2103,
an assessment of methods to reduce the consequences of a terrorist attack
on that chemical facility, including--
`(1) a description of the methods to reduce the consequences of a terrorist
attack assessed by the covered chemical facility;
`(2) the degree to which each method to reduce the consequences of a terrorist
attack could, if applied, reduce the potential extent of death, injury,
or serious adverse effects to human health resulting from a terrorist release;
`(3) the technical viability, costs, avoided costs (including liabilities),
savings, and applicability of applying each method to reduce the consequences
of a terrorist attack; and
`(4) any other information that the owner or operator of the covered chemical
facility considered in conducting the assessment.
`(1) IMPLEMENTATION- The owner or operator of a chemical facility assigned
to a high-risk tier under section 2102(c)(3) that is required to conduct
an assessment under subsection (a) shall implement methods to reduce the
consequences of a terrorist attack on the chemical facility if the Secretary
determines, based on an assessment in subsection (a), that the implementation
of such methods at the facility--
`(A) would significantly reduce the risk of death, injury, or serious
adverse effects to human health resulting from a chemical facility terrorist
incident but would not increase the interim storage of a substance of
concern outside the facility or directly result in the creation of a new
covered chemical facility assigned to a high-risk tier under section 2102(c)(3)
or the assignment of an existing facility to a high-risk tier;
`(B) can feasibly be incorporated into the operation of the covered chemical
facility; and
`(C) would not significantly and demonstrably impair the ability of the
owner or operator of the covered chemical facility to continue the business
of the facility at a location within the United States.
`(2) REVIEW OF INABILITY TO COMPLY-
`(A) IN GENERAL- An owner or operator of a covered chemical facility who
is unable to comply with the Secretary's determination under paragraph
(1) shall, within 60 days of receipt of the Secretary's determination,
provide to the Secretary a written explanation that includes the reasons
thereto.
`(B) REVIEW- Not later than 60 days of receipt of an explanation submitted
under subparagraph (A), the Secretary after consulting with the owner
or operator who submitted such explanation, shall provide to the owner
or operator a written determination of whether implementation shall be
required pursuant to paragraph (1). If the Secretary determines that implementation
is required, the facility shall be required to begin implementation within
180 days of that determination.
`(c) Provision of Information on Alternative Approaches-
`(1) IN GENERAL- The Secretary shall provide information to chemical facilities
on the use and availability of methods to reduce the consequences of a terrorist
attack at a covered chemical facility to aid a covered chemical facility
in meeting the requirements of subsection (a).
`(2) INFORMATION TO BE INCLUDED- The information under paragraph (1) may
include information about--
`(A) general and specific types of such methods;
`(B) combinations of chemical sources, substances of concern, and hazardous
processes or conditions for which such methods could be appropriate;
`(C) the availability of specific methods to reduce the consequences of
a terrorist attack;
`(D) the costs and cost savings resulting from the use of such methods;
`(E) emerging technologies that could be transferred from research models
or prototypes to practical applications;
`(F) the availability of technical assistance and best practices; and
`(G) such other matters as the Secretary determines is appropriate.
`(3) COLLECTION OF INFORMATION- The Secretary may collect information necessary
to fulfill the requirements of paragraph (1)--
`(A) from information obtained from owners or operators of chemical facilities
pursuant to this title, including those who have registered such facilities
pursuant to part 68 of title 40 Code of Federal Regulations (or successor
regulations);
`(B) from studies and reports published by academic institutions, National
Laboratories, and other relevant and reputable public and private sector
experts; and
`(C) through such other methods as the Secretary deems appropriate.
`(4) PUBLIC AVAILABILITY- Information made available publicly under this
subsection shall not identify any specific chemical facility, violate the
protection of information provisions under section 2108, or disclose any
confidential or proprietary information.
`(d) Protected Information- An assessment prepared under subsection (a) is
protected information under section 2108(f).
`(e) Funding for Methods To Reduce the Consequences of a Terrorist Attack-
The Secretary shall make funds available to help defray the cost of implementing
methods to reduce the consequences of a terrorist attack to covered chemical
facilities that are required by the Secretary to implement such methods or
that voluntarily choose to implement such methods. In making such funds available,
the Secretary shall give special consideration to those facilities required
by the Secretary to implement methods to reduce the consequences of a terrorist
attack pursuant to subsection (b) and water and wastewater facilities administered
by State, local, tribal, or municipal authorities that are subject to the
Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) or section 1433
of the Safe Drinking Water Act (42 U.S.C. 300i-2).
`(f) Publicly-Owned Water and Wastewater Treatment Facilities- Notwithstanding
any other provision of this title, the Secretary may not require a publicly-owned
facility regulated under the Safe Drinking Water Act (42 U.S.C. 300i-2) or
the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) to implement
methods to reduce the consequences of a terrorist attack under subsection
(b) unless that facility receives funding under subsection (e).
`SEC. 2111. APPLICABILITY.
`This title shall not apply to--
`(1) any chemical facility that is owned and operated by the Secretary of
Defense, the Attorney General, or the Secretary of Energy;
`(2) the transportation in commerce, including incidental storage, of any
substance of concern regulated as a hazardous material under chapter 51
of title 49, United States Code; or
`(3) any chemical facility that is owned or operated by a licensee or certificate
holder of the Nuclear Regulatory Commission.
`SEC. 2112. SAVINGS CLAUSE.
`Nothing in this title shall affect or modify in any way any obligation or
liability of any person under any other Federal law, including section 112
of the Clean Air Act (42 U.S.C. 7412), the Federal Water Pollution Control
Act (33 U.S.C. 1251 et seq.), the Resource Conservation and Recovery Act of
1976 (42 U.S.C. 6901 et seq.), the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.), the Occupational Safety and Health Act (29 U.S.C.
651 et seq.), the National Labor Relations Act (29 U.S.C. 151 et seq.), the
Emergency Planning and Community Right to Know Act of 1996 (42 U.S.C. 11001
et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Maritime
Transportation Security Act of 2002 (Pubic Law 107-295), and the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601 et seq.).
`SEC. 2113. OFFICE OF CHEMICAL FACILITY SECURITY.
`(a) In General- There is in the Department an Office of Chemical Facility
Security, headed by a Director, who shall be a member of the Senior Executive
Service in accordance with subchapter VI of chapter 33 of title 5, United
States Code, under section 5382 of that title, and who shall be responsible
for carrying out the responsibilities of the Secretary under this title.
`(b) Professional Qualifications- The individual selected by the Secretary
as the Director Office of Chemical Facility Security should have a demonstrated
knowledge of physical infrastructure protection, cybersecurity, chemical facility
security, hazard analysis, chemical process engineering, chemical process
safety reviews, and other such factors that the Secretary determines to be
necessary.
`(c) Selection Process- The Secretary shall make a reasonable effort to select
an individual to serve as the Director from among a group of candidates that
is diverse with respect to race, ethnicity, age, gender, and disability characteristics
and submit to the Committee on Homeland Security of the House of Representatives
and the Committee on Homeland Security and Governmental Affairs of the Senate
information on the selection process, including details on efforts to assure
diversity among the candidates considered for this position.
`SEC. 2114. SECURITY BACKGROUND CHECKS OF COVERED INDIVIDUALS AT CERTAIN
CHEMICAL FACILITIES.
`(a) Regulations Issued by the Secretary-
`(1) IN GENERAL- The Secretary shall issue regulations to require a covered
chemical facility assigned to a high-risk tier under section 2102(c)(3)
to subject covered individuals who have access to restricted areas or critical
assets or who are determined to require security background checks under
risk-based guidance to security background checks based on risk-based guidance.
Such regulations shall set forth--
`(A) the scope of the security background checks, including the types
of disqualifying offenses and the time period covered for each covered
individual;
`(B) the processes to conduct the security background checks;
`(C) the necessary biographical information and other data required in
order to conduct the security background checks; and
`(D) a redress process for adversely-affected covered individuals consistent
with subsections (b) and (c).
`(2) ENFORCEMENT- If the owner or operator of a covered chemical facility
that is subject to paragraph (1) fails to comply with the requirements of
that paragraph, the Secretary may issue a penalty against the owner or operator
in accordance with section 2106.
`(3) REQUIREMENT FOR REDRESS PROCESS- If a covered chemical facility performs
a security background check on a covered individual to comply with regulations
issued by the Secretary under paragraph (1), the Secretary shall not consider
the facility in compliance unless an adequate redress process as described
in subsection (c) is provided to covered individuals.
`(b) Requirements- Upon issuance of a final regulation under subsection (a),
or any future rule, regulation, directive or guidance, by the Secretary regarding
a security background check of a covered individual, the Secretary shall prohibit
the covered chemical facility from making an adverse employment decision,
including removal or suspension of the employee, due to such rule, regulation,
directive, or guidance with respect to a covered individual unless the covered
individual--
`(1) has been convicted of, has been found not guilty of by reason of insanity
of, or is under want, warrant, or indictment for a permanent disqualifying
criminal offense listed in part 1572 of title 49, Code of Federal Regulations;
`(2) was convicted of or found not guilty by reason of insanity of an interim
disqualifying criminal offense listed in part 1572 of title 49, Code of
Federal Regulations, within 7 years of the date on which the chemical facility
performs the security background check;
`(3) was incarcerated for an interim disqualifying criminal offense listed
in part 1572 of title 49, Code of Federal Regulations, and released from
incarceration within 5 years of the date that the chemical facility performs
the security background check;
`(4) is determined, as a result of the security background check, to be
a known terrorist or to have terrorist ties; or
`(5) is determined, as a result of the security background check, not to
be legally authorized to work in the United States.
`(c) Redress Process- Upon the issuance of a final regulation under subsection
(a), or any future rule, regulation, directive, or guidance, requiring a covered
chemical facility to perform a security background check of a covered individual,
the Secretary shall--
`(1) require an adequate redress process for a covered individual subjected
to an adverse employment decision, including removal or suspension of the
employee, due to such rule, regulation, directive, or guidance that is consistent
with the appeals and waiver processes established for applicants for commercial
motor vehicle hazardous materials endorsements and transportation workers
at ports, as required by section 70105(c) of title 46, United States Code,
including all rights to hearings before an administration law judge, scope
of review, a review of an unclassified summary of classified evidence equivalent
to the summary provided in part 1515 of title 49, Code of Federal Regulations,
and procedures for new evidence for both appeals and waiver decisions;
`(2) have the authority to order an appropriate remedy, including reinstatement
of the covered individual, should the Secretary determine that a covered
chemical facility wrongfully made an adverse employment decision regarding
a covered individual pursuant to such rule, regulation, directive, or guidance;
`(3) ensure that the redress process required under this subsection affords
to the covered individual a full disclosure of any public-record event covered
by subsection (b) that provides the basis for an adverse employment decision;
and
`(4) ensure that covered individual receives the individual's full wages
and benefits until all appeals and waiver procedures are exhausted.
`(1) IN GENERAL- A covered chemical facility may not knowingly misrepresent
to an employee or other relevant person, including an arbiter involved in
a labor arbitration, the scope, application, or meaning of any rules, regulations,
directives, or guidance issued by the Secretary related to security background
check requirements for covered individuals when conducting a security background
check under this section.
`(2) DEADLINE FOR REGULATIONS- Not later than 1 year after the date of enactment
of the Chemical Facility Anti-Terrorism Act of 2008, the Secretary shall
issue a regulation that prohibits a covered chemical facility from knowingly
misrepresenting to an employee or other relevant person, including an arbiter
involved in a labor arbitration, the scope, application, or meaning of any
rules, regulations, directives, or guidance issued by the Secretary related
to security background check requirements for covered individuals when conducting
a security background check.
`(e) Restrictions on Use and Maintenance of Information- Information obtained
under this section by the Secretary or a covered chemical facility that is
an employer of a covered individual shall be handled as follows:
`(1) Such information may not be made available to the public.
`(2) Such information may not be accessed by employees of the facility except
for such employees who are directly involved with collecting the information
or conducting or evaluating security background checks.
`(3) Such information shall be maintained confidentially by facility and
the Secretary and may be used only for making determinations under this
section.
`(4) The Secretary may share such information with other Federal law enforcement
agencies.
`(f) Rights and Responsibilities- Nothing in the section shall be construed
to abridge any right or responsibility of a covered individual or covered
chemical facility under any other Federal, State, local, or tribal law or
collective bargaining agreement.
`(g) No Preemption of Federal or State Law- Nothing in this section shall
be construed to preempt a Federal, State, local, or tribal law that requires
criminal history background checks, checks on the authorization of an individual
to work in the United States, or other background checks of covered individuals.
`(h) Definition of Security Background Check- The term `security background
check' means a review at no cost to any covered individual of the following
for the purpose of identifying individuals who may pose a threat to chemical
facility security, to national security, or of terrorism.
`(1) Relevant databases to verify and validate identity.
`(2) Relevant criminal history databases.
`(3) In the case of an alien (as defined in section 101 of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(3))), the relevant data bases to determine
the status of the alien under the immigration laws of the United States.
`(4) Relevant databases to identify terrorists or people with known ties
to terrorists.
`(5) Other relevant information or data bases, as determined by the Secretary.
`(i) Included Individuals- The Secretary shall require any individual at a
covered chemical facility or associated with a covered chemical facility who
is provided a copy of a security vulnerability assessment or site security
plan to be subjected to a security background check.
`(j) Savings Clause- Nothing in this section shall be construed as creating
any new right or modifying any existing right of an individual to appeal a
determination by the Secretary as a result of a check against a terrorist
watch list.
`SEC. 2115. NATIONAL CHEMICAL SECURITY CENTER OF EXCELLENCE.
`(1) IN GENERAL- The Secretary shall establish a National Chemical Security
Center of Excellence to conduct research and education and to develop technologies
to lower the overall risk of terrorist chemical attack, including technologies
or practices to decrease threats, vulnerabilities, and consequences in order
to ensure the security of chemical facilities.
`(2) ADDITIONAL REQUIREMENTS- In establishing the National Chemical Security
Center of Excellence under paragraph (1), or in reorganizing any other chemical,
biological, or agricultural Center of Excellence established before the
date of enactment of the Chemical Facility Anti-Terrorism Act of 2008, the
Secretary shall--
`(A) recognize the unique scientific, technical, and funding requirements
of the chemical, biological, and agricultural fields with respect to the
mission of the Department of Homeland Security; and
`(B) maintain the National Chemical Security Center of Excellence and
any such other chemical, biological, or agricultural Center of Excellence
as a distinct entity with respect to organization and funding.
`(b) Designation of Lead Institution- The Secretary shall select at least
one of the institutions identified in subsection (c) as the lead institution
responsible for coordinating the National Chemical Security Center of Excellence.
Any member institution that is part of the consortium under subsection (c)
may serve as a lead institution for the Center.
`(c) Member Institutions; Consortium-
`(1) CONSORTIUM- The lead institution selected under subsection (b) shall
execute agreements with the other institutions of higher education identified
in this subsection and other institutions designated by the Secretary to
develop a consortium to assist in accomplishing the goals of the Center.
`(2) MEMBERS- The National Chemical Security Center of Excellence shall
consist of at least three institutions of higher education with current
expertise or the capability to produce appropriate expertise, including--
`(A) one historically black college or university; and
`(B) one Hispanic-serving institution.
`(3) INCLUSIONS- The Secretary shall ensure that an appropriate number of
any additional partner colleges or universities designated by the Secretary
under this subsection are historically black colleges and universities,
Hispanic-serving institutions, and tribal colleges and universities.
`(4) DEFINITIONS- For the purposes of this subsection, the terms `historically
black colleges and universities', `Hispanic-serving institutions', and `tribal
colleges and universities' have the meanings given such terms under section
2109(d)(2).
`SEC. 2116. AUTHORIZATION OF APPROPRIATIONS.
`There is authorized to be appropriated to the Secretary of Homeland Security
to carry out this title--
`(1) $325,000,000 for fiscal year 2010, of which $100,000,000 shall be made
available to provide funding for methods to reduce the consequences of a
terrorist attack pursuant to section 2110(e);
`(2) $300,000,000 for fiscal year 2011, of which $75,000,000 shall be made
available to provide funding for methods to reduce the consequences of a
terrorist attack pursuant to section 2110(e); and
`(3) $275,000,000 for fiscal year 2012, of which $50,000,000 shall be made
available to provide funding for methods to reduce the consequences of a
terrorist attack pursuant to section 2110(e).'.
(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 chemical facilities.
`Sec. 2103. Security vulnerability assessments and site security plans.
`Sec. 2104. Record keeping; site inspections.
`Sec. 2107. Federal preemption.
`Sec. 2108. Protection of information.
`Sec. 2109. Certification by third-party entities.
`Sec. 2110. Methods to reduce the consequences of a terrorist attack.
`Sec. 2111. Applicability.
`Sec. 2112. Savings clause.
`Sec. 2113. Office of Chemical Facility Security.
`Sec. 2114. Security background checks of covered individuals at certain
chemical facilities.
`Sec. 2114. National chemical security center of excellence.
`Sec. 2115. Authorization of appropriations.'.
(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 October 1, 2009.
(d) Regulations- In carrying out the requirements of title XXI of the Homeland
Security Act of 2002, as added by subsection (a), the Secretary may, to the
extent that the Secretary determines is appropriate, use any of the regulations
known as CFATS regulations, as in effect immediately before the enactment
of this Act, that the Secretary determines carry out such requirements.
(e) Compliance With Preexisting Timelines- In the case of a chemical facility
that is required to submit a security vulnerability assessment and site security
plan under section 2103 of the Homeland Security Act of 2002, as added by
subsection (a), and that, as of the date of the enactment of this Act, is
subject to the regulations known as CFATS regulations, as in effect immediately
before the date of the enactment of this Act, the Secretary may require the
facility to adhere to any timelines applicable under such regulations instead
of any applicable timeline under subsection (i) of that section.
(1) DEADLINE FOR ISSUING CERTAIN GUIDANCE- Not later than October 1, 2009,
the Secretary of Homeland Security shall update any guidance, recommendations,
suggested action items, or any other widely disseminated voluntary action
item relating to performing a security background check (as such term is
defined in section 2114(g) of the Homeland Security Act of 2002, as added
by subsection (a)) of a covered individual (as that term is defined in section
2101(5) of such Act, as so added) that was issued to a covered chemical
facility (as that term is defined in section 2101(6) of such Act, as so
added) prior to that date to ensure that such guidance, recommendations,
suggested action items or other widely disseminated voluntary action item
is compliance with section 2114(a)(1) of such Act, as so added.
(2) DEADLINE FOR HIGH-RISK FACILITIES TO SUBMIT SECURITY VULNERABILITY ASSESSMENTS
AND SITE SECURITY PLANS-
(A) IN GENERAL- The owner or operator of a chemical facility assigned
to a high-risk tier under paragraph (3) of subsection (c) of section 2102
of the Homeland Security Act of 2002, as added by section 4, shall submit
to the Secretary of Homeland Security--
(i) the security vulnerability assessment required under that subsection
by not later than 3 months after the date on which the Secretary prescribes
regulations to carry out that subsection; and
(ii) the site security plan required under that subsection by not later
than 4 months after receiving notice that the Secretary has approved
the security vulnerability assessment submitted under clause (i).
(B) EXTENSION- The Secretary may extend the deadline under subparagraph
(A) for a chemical facility for not longer than six months.
(C) FACILITIES COVERED BY CFATS- The owner or operator of a chemical facility
assigned to a high-risk tier under section 2102(c)(3) of the Homeland
Security Act of 2002, as added by subsection (a), who, before October
1, 2009, submits a security vulnerability assessment or site security
plan under the regulations known as CFATS regulations, as in effect immediately
before the enactment of this Act, shall be required to submit an addendum
to the facility's security vulnerability assessment or site security plan
to reflect any additional requirements of this Act or the amendments made
by this Act.
SEC. 5. ANNUAL REPORT TO CONGRESS.
(a) Annual Report- Not later than one year after the date of the enactment
of this Act, and annually thereafter for the next four years, the Secretary
of Homeland Security shall submit to Congress a report on progress in achieving
compliance with title XXI of the Homeland Security Act of 2002, as added by
section 4. Each such report shall include--
(1) an assessment of the effectiveness of the site security plans developed
under this title;
(2) any lessons learned in implementing this title (including as a result
of a red-team exercise); and
(3) any recommendations of the Secretary to improve the programs, plans,
and procedures under this title, including the feasibility of programs to
increase the number of economically disadvantaged businesses eligible to
perform third-party entity responsibilities pursuant to sections 2103(e)(5),
2104(b) and (c), and 2105(b)(1) of such Act, as so added.
(b) Protected Information- A report under this section may not include information
protected under section 2108 of such Act, as so added.
SEC. 6. INSPECTOR GENERAL REPORT.
(a) Report Required- Not later than October 1, 2010, the Inspector General
of the Department of Homeland Security shall submit to the Committee on Homeland
Security of the House of Representatives and the Committee on Homeland Security
and Governmental Affairs of the Senate a report that reviews the effectiveness
of the implementation of title XXI of the Homeland Security Act of 2002, as
added by subsection (a), including the effectiveness of site security plans
required under such title and any recommendations to improve the programs,
plans, and procedures required under such title, including the Secretary's
dissemination of best practices under section 2103(a)(1)(A) of such Act, as
so added, and the participating rates of economically disadvantaged businesses
eligible to perform third-party entity responsibilities pursuant to sections
2103(e)(5), 2104(b), (c), and (d), and 2105(b)(1) of such Act, as so added.
