99–006 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 112–211 

FULL IMPLEMENTATION OF THE CHEMICAL FACILITY 

ANTI-TERRORISM STANDARDS ACT 

SEPTEMBER 19, 2011.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. UPTON, from the Committee on Energy and Commerce, 

submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 908] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 908) to extend the authority of the Secretary of 

Homeland Security to maintain the Chemical Facility Anti-Terrorism Standards program, having considered the same, report favorably thereon with an amendment and recommend that the bill 

as amended do pass. 

CONTENTS 

Page 

Amendment .............................................................................................................. 2 

Purpose and Summary ............................................................................................ 2 

Background and Need for Legislation .................................................................... 3 

Hearings ................................................................................................................... 4 

Committee Consideration ........................................................................................ 5 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 14 

Statement of General Performance Goals and Objectives .................................... 14 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 14 

Earmarks .................................................................................................................. 14 

Committee Cost Estimate ....................................................................................... 14 

Congressional Budget Office Estimate ................................................................... 14 

Federal Mandates Statement ................................................................................. 15 

Advisory Committee Statement .............................................................................. 15 

Applicability to Legislative Branch ........................................................................ 15 

Section-by-Section Analysis of the Legislation ...................................................... 16 

Changes in Existing Law Made by the Bill, as Reported ..................................... 17 

Minority Views ......................................................................................................... 19 


smartinez on DSK6TPTVN1PROD with REPORTS
2 

AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Full Implementation of the Chemical Facility AntiTerrorism Standards Act’’. 

SEC. 2. EXTENSION OF DEPARTMENT OF HOMELAND SECURITY CHEMICAL FACILITY ANTITERRORISM STANDARDS PROGRAM. 

Subsection (b) of section 550 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 6 U.S.C. 121 note) is amended by striking 

‘‘2011’’ and inserting ‘‘2018’’. 

SEC. 3. BACKGROUND CHECKS. 

Section 550 of the Department of Homeland Security Appropriations Act, 2007 

(Public Law 109–295; 6 U.S.C. 121 note) is amended by adding at the end the following new subsection: 

‘‘(i)(1) No security background check is required under this section for an individual holding a valid transportation security card issued under section 70105 of 

title 46, United States Code. 

‘‘(2) The Secretary shall determine, on an ongoing basis, whether alternate security background checks conducted by the Secretary are sufficient to meet the requirements of the risk-based performance standards issued under this section such 

that no additional security background check is required under this section for an 

individual who has passed such a qualifying alternate security background check. 

‘‘(3) The owner or operator of a chemical facility subject to the regulations issued 

under this section may permit an individual holding a valid transportation security 

card issued under section 70105 of title 46, United States Code, or an individual 

who has passed a qualifying alternate security background check under paragraph 

(2), to have access to restricted areas or critical assets of such facility without the 

satisfaction of any other additional requirements imposed by the Secretary. 

‘‘(4)(A) Nothing in this subsection shall be construed to abridge any right or responsibility of— 

‘‘(i) an individual subject to a security background check under this section; 

or 

‘‘(ii) an owner or operator of a chemical facility subject to the regulations 

issued under this section. 

‘‘(B) Nothing in this subsection shall be construed to prohibit an owner or operator 

of a chemical facility from requiring, for reasons other than compliance with this 

section, that prospective or current employees or contractors undergo any additional 

background check in addition to that required under the risk-based performance 

standards issued under this section.’’. 

SEC. 4. AUTHORIZATION OF APPROPRIATIONS. 

There is authorized to be appropriated to carry out section 550 of the Department 

of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 6 U.S.C. 121 

note) $89,920,000 for each of fiscal years 2012 through 2018. 

PURPOSE AND SUMMARY

In the fall of 2006, Congress, through Section 550 of Public Law 

109–295, authorized the Secretary of Homeland Security to establish risk-based security performance standards for facilities with 

chemicals that the Secretary deems to present high levels of security risk. The Department, as required by Public Law 109–295, promulgated interim final regulations on April 9, 2007, resulting in 

the Chemical Facility Anti-Terrorism Standards (CFATS). Pursuant to Public Law 112–10, the statutory authority for CFATS is 

scheduled to sunset on October 4, 2011. H.R. 908, the Full Implementation of the Chemical Facility Anti-Terrorism Standards Act 

extends the CFATS program seven (7) years, or until October 4, 

2018. 

In addition to maintaining the existing CFATS program and extending its legal authority, the legislation also makes authorizaVerDate Mar 15 2010 06:27 Sep 20, 2011 Jkt 099006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR211.XXX HR211

smartinez on DSK6TPTVN1PROD with REPORTS
3 

tions for appropriations for each year the program’s authority is 

authorized as well as adds a new provision to streamline personnel 

surety and badging requirements at facilities regulated under 

CFATS. 

BACKGROUND AND NEED FOR LEGISLATION

Chemical facilities are an integral part of the United States economy. According to the U.S. Bureau of Economic Analysis, the chemical and pharmaceutical industries, combined, accounted for $329 

billion of value added in 2009—or 2.3 percent in Gross Domestic 

Product to the United States economy. In addition, the U.S. Commerce Department estimated that exports of chemical products in 

2009, including plastics, were about $153 billion in 2009, generated 

a balance of trade surplus in excess of $20 billion. These facilities, 

often located in densely populated areas, hold many chemicals that 

could make them attractive terrorist targets. As a result, the chemical sector is among the 17 critical infrastructure and key resources 

(CI/KR) sectors under the National Infrastructure Protection Plan, 

pursuant to Homeland Security Presidential Directive–7 (HSPD–7). 

In 2006, Section 550 of the Homeland Security Appropriations 

Act of 2007 (P.L. 109–295) provided the Secretary of Homeland Security with interim authority to regulate the nation’s chemical facilities. Pursuant to that authority, the Department of Homeland 

Security (DHS) issued the final Chemical Facility Anti-Terrorism 

Standards regulations on April 9, 2007. Those standards, which became effective on June 8, 2007, required each chemical facility to 

report the amounts and types of chemicals on site so that DHS 

could determine whether that facility would be further regulated by 

CFATS rules. Based on those analyses, known as ‘‘Top-Screen’’ reviews, DHS began placing regulated facilities into one of four tiers. 

At the outset of the program, DHS expected that roughly 30,000 

facilities would be required to comply with the reporting requirements of the regulations, with approximately 6,000 falling into one 

of the four (4) high risk categories requiring further regulation. As 

of March 2011, almost 40,000 chemical facilities had registered 

with DHS and completed the Top-Screen process. Of these facilities, DHS considered more than 8,064 as high-risk and required 

them to submit a site vulnerability assessment. 

On March 31, 2011, Rand Beers, the DHS Under Secretary, National Protection and Programs Directorate, testified before the 

Subcommittee on Environment and that Economy that DHS has 

determined that CFATS covers 4,744 facilities (4,126 Final tiered 

facilities, 618 preliminarily tiered facilities). The Committee has 

been informed that as of the March 31, 2011 hearing date the remaining 618 preliminarily tiered facilities are either gasoline terminals (approximately 350 facilities), facilities that submitted Alternative Security Plans in lieu of CSAT Site Vulnerability Assessments, or recent Top Screen submittals. 

In addition, DHS is still in the process of filling all its positions 

for chemical facility security officers and inspectors. DHS plans to 

continue to hire throughout the fiscal year. At the March 31 hearing, Under Secretary Beers testified that DHS has hired, or is in 

the process of on-boarding, more than 188 people and DHS plans 

to hire throughout this fiscal year to meet its staffing goal of 268 

positions. In addition, Mr. Beers testified that DHS has filled 97 


smartinez on DSK6TPTVN1PROD with REPORTS
4 

of 103 field inspector positions and all of the 14 field leadership positions. 

DHS began inspections of Tier 1 facilities in February 2010, and 

has completed approximately 175 pre-authorization inspections to 

date. DHS has inspected some facilities’ site security plans and 

issued 66 administrative orders to compel facility compliance. Mr. 

Beers testified that DHS only conducted four authorization inspections, or comprehensive and detailed inspections to verify that the 

descriptions of security measures listed in the facility’s authorized 

SSP (or Alternative Security Plan) are accurate and complete, and 

that the equipment, processes, and procedures described are appropriate and function as intended. In responses to questions for the 

record from the March 31, 2011 hearing, Mr. Beers stated that 

DHS anticipates conducting authorization inspections at tiered 

sites within 180 days of issuance of a Letter of Authorization for 

a facility’s Site Security Plan. 

Final Tiering assignments for facilities in Tiers II, III, and IV are 

ongoing. To date, DHS had not yet approved one of the 4,100 site 

security plans it has received for facilities in any risk Tier. 

The cost of extra security measures at CFATS-covered facilities 

is significant for both the private and public sector. In the last Congress, a trade association for large chemical production facilities 

testified before this Committee that its member companies spent 

$8 billion for association security codes and projects and will spend 

another $8 billion to fully comply with CFATS. Moreover, each of 

the three trade associations that appeared before the Subcommittee 

on Environment and the Economy on March 31, 2011, testified 

that, notwithstanding the significant investment of the private sector for compliance with industry and government mandated security programs, the heaviest costs to be borne by the private sector 

are the major capital investments that regulated facilities will need 

to make upon approval of their Site Security Plans. In addition, 

DHS, since the inception of CFATS, has spent around $340 million 

to initiate the program. 

Enactment of H.R. 908 is necessary to prevent the expiration of 

the program’s legal authority in October 2011, and to provide longterm predictability for the private sector. Further, extending 

CFATS authorization will allow the DHS to fully implement the 

CFATS program and gather critical information on the strengths 

and weaknesses of a completely operational program, prevent the 

stranding of billions of dollars of investment and work-hours by the 

public and private sectors in security enhancements, and ensure 

our chemical sector remains secure. 

HEARINGS

The Subcommittee on Environment and the Economy held a 

hearing on H.R. 908, the Full Implementation of the Chemical Facility Anti-Terrorism Standards Act on March 31, 2011. The Subcommittee received testimony from: Rand Beers, Under Secretary 

for the National Protection and Programs Directorate (NPPD), U.S. 

Department of Homeland Security; Mr. Andrew Skipp, President, 

Hubbard-Hall, on behalf of the National Association of Chemical 

Distributors; Mr. Bill Allmond, Vice-President, Government Relations, Society of Chemical Manufacturers and Affiliates; Mr. David 

Tabar, The Sherwin-Williams Company, on behalf of the American 


smartinez on DSK6TPTVN1PROD with REPORTS
5 

Coatings Association; and Mr. James S. Frederick, Assistant Director, Health, Safety and Environment, United Steelworkers, on behalf of the Blue-Green Alliance. 

COMMITTEE CONSIDERATION

On May 4, 2011, the Subcommittee on Environment and the 

Economy met in open markup session and approved H.R. 908 for 

Full Committee consideration, as amended, by a voice vote. 

On May 25 and 26, 2011, the Committee on Energy and Commerce met in open markup session and reported favorably H.R. 

908, as amended, for House consideration, with further amendment, by a recorded vote of 33–16. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion 

to report legislation and amendments thereto. A motion by Mr. 

Upton to order H.R. 908, as amended, reported to the House, with 

further amendments, was agreed to by a recorded vote of 33–16. 


smartinez on DSK6TPTVN1PROD with REPORTS
6 


smartinez on DSK6TPTVN1PROD with REPORTSInsert graphic folio 8 HR211.001
7 


smartinez on DSK6TPTVN1PROD with REPORTSInsert graphic folio 9 HR211.002
8 


smartinez on DSK6TPTVN1PROD with REPORTSInsert graphic folio 10 HR211.003
9 


smartinez on DSK6TPTVN1PROD with REPORTSInsert graphic folio 11 HR211.004
10 


smartinez on DSK6TPTVN1PROD with REPORTSInsert graphic folio 12 HR211.005
11 


smartinez on DSK6TPTVN1PROD with REPORTSInsert graphic folio 13 HR211.006
12 


smartinez on DSK6TPTVN1PROD with REPORTSInsert graphic folio 14 HR211.007
13 


smartinez on DSK6TPTVN1PROD with REPORTSInsert graphic folio 15 HR211.008
14 

COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee held a legislative hearing and 

made findings that are reflected in this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

To extend the authority of the Secretary of Homeland Security 

to maintain the Chemical Facility Anti-Terrorism Standards program. 

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX

EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee finds that H.R. 908, the 

Full Implementation of the Chemical Facility Anti-Terrorism 

Standards Act, would result in no new or increased budget authority, entitlement authority, or tax expenditures or revenues. 

EARMARKS

In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, the 

Committee finds that H.R. 908 contains no earmarks, limited tax 

benefits, or limited tariff benefits. 

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

CONGRESSIONAL BUDGET OFFICE ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate provided by 

the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974: 

H.R. 908—Full Implementation of the Chemical Facility Anti-Terrorism Standards Act 

H.R. 908 would extend through fiscal year 2018 the Department 

of Homeland Security’s (DHS’s) authority to regulate security at 

certain chemical facilities in the United States. Under this authority, which under current law is set to expire in October, DHS runs 

the Chemical Facility Anti-Terrorism Standards (CFATS) program. 

Under CFATS, DHS collects and reviews information from chemical facilities in the United States to determine which facilities 

present a security risk. Facilities determined to present a high 

level of security risk are then required to develop a Site Security 

Plan (SSP). DHS in turn conducts inspections to validate the adequacy of a facility’s SSP and their compliance with it. 

H.R. 908 would authorize $90 million annually for CFATS over 

the 2012–2018 period. That amount is equal to the $90 million provided in 2011 for the program. CBO estimates that implementing 

this legislation would cost $361 million over the 2012–2016 period 


smartinez on DSK6TPTVN1PROD with REPORTS
15 

and about $260 million in subsequent years, assuming the appropriation of the specified amounts. 

By fiscal year, in millions of dollars— 

2012 2013 2014 2015 2016 2012– 

2016 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Authorization Level ....................................................................... 90 90 90 90 90 450 

Estimated Outlays ........................................................................ 32 64 87 89 89 361 

H.R. 908 could result in the collection of additional civil penalties, which are recorded as revenues and deposited in the Treasury; therefore, pay-as-you go procedures apply. However, CBO estimates that such collections would be minimal and the effect on revenues would be insignificant. Enacting the bill would not affect direct spending. 

H.R. 908 would extend intergovernmental and private-sector 

mandates, as defined in the Unfunded Mandates Reform Act 

(UMRA), on owners and operators of public and private facilities 

where certain chemicals are present. Requirements on those owners and operators to assess the vulnerability of their facilities and 

to prepare and implement security plans would be mandates. The 

bill also would extend mandates that require owners and operators 

of such facilities to maintain records, periodically submit reviews of 

the adequacy of the vulnerability assessments or facility security 

plans, and allow DHS access to their property for inspections and 

verifications. In addition, owners and operators would have to continue to conduct background checks on employees who have access 

to restricted areas, and provide training to employees. Based on information from DHS and industry sources, CBO estimates that the 

aggregate costs of complying with the mandates would be small 

and would fall below the annual thresholds established in UMRA 

for intergovernmental and private-sector mandates ($71 million 

and $142 million, respectively, in 2011, adjusted annually for inflation). 

The CBO staff contacts for this estimate are Jason Wheelock (for 

the federal costs), Melissa Merrell (for the intergovernmental impact), and Paige Piper/Bach (for the private-sector impact). The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act were created by this legislation. 

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 


smartinez on DSK6TPTVN1PROD with REPORTS
16 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. 

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title 

This section names this Act as the ‘‘Full Implementation of the 

Chemical Facility Anti-Terrorism Standards Act’’. 

Section 2. Extension of Department of Homeland Security Chemical 

Facility Anti-Terrorism Standards Program. 

This section amends section 550(b) of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 6 

U.S.C. 121 note) by striking ‘‘2011’’ and inserting ‘‘2018’’. 

Section 3. Background checks 

The Committee is aware of the substantial burden that is placed 

on CFATS regulated facilities and their employees by the myriad 

of personnel surety and identification card requirements and costs. 

The Committee believes that this program can and should be 

streamlined to allow for appropriate screening against the Terrorist 

Watch List for the financial benefit and convenience of workers and 

their employers. 

This section adds a new subsection (i) to Section 550 of the Department of Homeland Security Appropriations Act, 2007 (Public 

Law 109–295; 6 U.S.C. 121 note) to provide that no additional security background check is required under CFATS for an individual 

holding a valid transportation worker identification card (TWIC) 

issued under the Maritime Transportation Security Act, section 

70105 of title 46, United States Code. In addition, the owner or operator of a CFATS-regulated facility may permit an individual 

holding a valid TWIC or an individual who has passed a qualifying 

alternate security background check—approved by the Secretary of 

Homeland Security because it satisfies CFATS’s risk-based performance criteria—to have access to restricted areas or critical assets of such facility without needing to meet any other additional 

requirements imposed by the Secretary. 

This section also requires the Secretary of Homeland Security to 

determine, on an ongoing basis, whether alternate security background checks conducted by the Secretary are sufficient to meet 

DHS’s risk-based performance standards issued such that no additional security background check is required under CFATS for an 

individual who has passed such a qualifying alternate security 

background check. 

Nothing in Section 550(i) abridges the collective bargaining 

rights of workers or employers or collective bargaining agreements 

already signed, except to the extent that they may require DHSmandated backgrounds checks or identification cards made unnecessary by this section. Rather, by eliminating redundant requirements for background checks and identification cards subsection (i) 

is intended to benefit workers and employers by reducing compliance burdens such as extra application fees, time wasted filling out 

needless forms, and red-tape obstacles to career advancement. 

Nor does Section 550(i) prevent an owner or operator of a CFATS 

regulated facility from requiring, for reasons other than compliance 


smartinez on DSK6TPTVN1PROD with REPORTS
17 

with CFATS, that prospective or current employees or contractors 

undergo any additional background check in addition to that required under CFATS’s risk-based performance standards. 

Section 4. Authorization of appropriations 

This section authorizes $89.92 million for appropriation for Section 550 of Public Law 109–295 in each fiscal year that this section 

is authorized under this bill, from fiscal year 2012 through fiscal 

year 2018. The Committee is aware that in fiscal year 2011, DHS 

was appropriated $89.928 million or $8,000 more than what is authorized by this bill. The Committee anticipates that as DHS becomes more proficient in operating CFATS, the financial burden to 

operate the program could lessen, allowing scarce federal resources 

to be deployed in other areas. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

DEPARTMENT OF HOMELAND SECURITY 

APPROPRIATIONS ACT, 2007 

* * * * * * * 

TITLE V—GENERAL PROVISIONS 

* * * * * * * 

SEC. 550. (a) * * * 

(b) Interim regulations issued under this section shall apply until 

the effective date of interim or final regulations promulgated under 

other laws that establish requirements and standards referred to 

in subsection (a) and expressly supersede this section: Provided, 

That the authority provided by this section shall terminate on October 4, ø2011¿ 2018. 

* * * * * * * 

(i)(1) No security background check is required under this section 

for an individual holding a valid transportation security card 

issued under section 70105 of title 46, United States Code. 

(2) The Secretary shall determine, on an ongoing basis, whether 

alternate security background checks conducted by the Secretary are 

sufficient to meet the requirements of the risk-based performance 

standards issued under this section such that no additional security 

background check is required under this section for an individual 

who has passed such a qualifying alternate security background 

check. 

(3) The owner or operator of a chemical facility subject to the regulations issued under this section may permit an individual holding 

a valid transportation security card issued under section 70105 of 

title 46, United States Code, or an individual who has passed a 

qualifying alternate security background check under paragraph (2), 

to have access to restricted areas or critical assets of such facility 


smartinez on DSK6TPTVN1PROD with REPORTS
18 

without the satisfaction of any other additional requirements imposed by the Secretary. 

(4)(A) Nothing in this subsection shall be construed to abridge 

any right or responsibility of— 

(i) an individual subject to a security background check 

under this section; or 

(ii) an owner or operator of a chemical facility subject to the 

regulations issued under this section. 

(B) Nothing in this subsection shall be construed to prohibit an 

owner or operator of a chemical facility from requiring, for reasons 

other than compliance with this section, that prospective or current 

employees or contractors undergo any additional background check 

in addition to that required under the risk-based performance 

standards issued under this section. 


smartinez on DSK6TPTVN1PROD with REPORTS
(19) 

MINORITY VIEWS 

In 1984, a chemical facility in Bhopal, India accidentally released 

40 tons of methyl isocyanate, killing approximately 3,000 people 

and injuring thousands more. The tragic event in Bhopal was an 

accident; had it been a deliberate terrorist attack the consequences 

could have been much worse. 

Chemical facilities are an integral part of the United States economy, generating $550 billion in annual revenues. These facilities, 

often located in densely populated areas, hold many chemicals that 

can cause serious harm to humans and the environment if used 

maliciously or without sufficient care. These factors make U.S. 

chemical facilities attractive terrorist targets. As a result, the 

chemical sector is among the 17 critical infrastructure and key resources (CI/KR) sectors under the National Infrastructure Protection Plan, pursuant to Homeland Security Presidential Directive– 

7 (HSPD–7). 

In 2006, Congress gave the Department of Homeland Security 

the authority to create the Chemical Facility Anti-Terrorism Standards program, or CFATS. Congress did so not through a series of 

hearings, not through extensive negotiation with interested and 

concerned parties, but instead through a provision attached to an 

appropriations bill. It was intended as a temporary fix until Congress could establish a comprehensive program. The provision was 

slated to expire in 2009. 

H.R. 908 does not establish such a comprehensive program. 

Instead, it extends the current statutory language and the interim program without significant amendment. While the CFATS 

program is a good start, it is limited by significant flaws in the underlying law. 

Section 550 does not cover a range of facilities that could endanger thousands in the event of a worst-case chemical release as a 

result of a terrorist attack, including drinking water utilities, 

chemical plants located on ports, and federal facilities. The exemption for facilities subject to regulation by the Nuclear Regulatory 

Commission removes several thousand high-risk facilities from 

CFATS, without an evaluation of whether the NRC regulations address the risks from chemicals stored there. 

These are security gaps that we need to close. Toxic chemicals 

stored onsite at a federal facility, for example, are as lethal as the 

same chemicals stored at a chemical facility covered by the program. An NRC regulation requiring a locked door for a room containing brachytherapy materials will not prevent an attack on a 

chemical tank down the hall. Democratic amendments offered to 

close these gaps were rejected by the majority during the Committee process. H.R. 908 would continue these baseless exemptions, 

perpetuating these security gaps. 


smartinez on DSK6TPTVN1PROD with REPORTS
20 

Although section 550 provides for the establishment of risk-based 

performance standards, it does not ensure that those standards will 

be met. Section 550 says that the Secretary ‘‘may disapprove’’ plans 

that fail to meet these tailored standards—providing discretion to 

approve plans that fail to do so. Section 550 also includes a prohibition on disapproving a site security plan on the presence or absence 

of a particular security measure, even if that security measure is 

necessary to meet the risk-based performance standards. The section could therefore require the approval of plans that fail to meet 

the standards. Democratic amendments offered to address these 

issues were rejected by the majority, so H.R. 908 does nothing to 

ensure that the risk-based performance standards are met or that 

these high-risk facilities are secured. 

Section 550 fails to protect workers, who might be subjected to 

discrimination and other background check abuses under the guise 

of homeland security. Because of bipartisan efforts and negotiations, H.R. 908 will protect some workers, those already holding security credentials, from these abuses. H.R. 908 will do nothing to 

protect other workers. 

Section 550 fails to include workers, who are on the front lines 

of preventing and responding to a potential terrorist attack, in the 

development of site security plans. Workers have unparalleled experience and knowledge, which should inform the development of 

these plans. H.R. 908 would not address this shortcoming. 

Section 550 does not protect whistleblowers. Effective security for 

high-risk facilities depends on the timely furnishing of information 

about failures and violations. That, in turn depends on assurances 

to workers and other whistleblowers that they will not suffer retaliation for providing such information. Whistleblower protections 

are thus an essential component of an effective CFATS program, 

and should be included. H.R. 908 does not offer this essential protection. 

Section 550 does not create timelines for agency action or include 

mechanisms for ensuring timely agency action. Instead, it specifically exempts actions by the Secretary taken under this section 

from citizen enforcement and deadline suits. Despite efforts by 

democratic members to include deadlines in H.R. 908, the bill does 

not include timelines and will not ensure timely agency action. 

Under section 550, a new category of protected information was 

created. It is similar to other security related information categories, and provides significant protection. But it goes beyond 

other security related information designations, in a very troubling 

way. Section 550 provides that, in judicial proceedings, security information under this program should be treated ‘‘as if’’ it were classified, even though it does not meet the criteria to be considered 

classified. This distinction is unwarranted, and is a significant obstacle to administration efforts to harmonize information protection 

regimes. It is also an unnecessary obstacle to transparency and 

oversight of this important program. H.R. 908 does not address this 

issue. 

Over the past several months, efforts to address these shortcomings in H.R. 908 through bipartisan negotiations have been 

rebuffed. Rather than reflecting the expertise of the Energy and 

Commerce Committee, H.R. 908 preserves much of the flawed lanVerDate Mar 15 2010 05:38 Sep 20, 2011 Jkt 099006 PO 00000 Frm 00020 Fmt 6604 Sfmt 6604 E:\HR\OC\HR211.XXX HR211

smartinez on DSK6TPTVN1PROD with REPORTS
21 

guage codified by the Appropriations Committee in 2006. Extending the authorization for this program is important, but this bill 

fails to address significant shortcomings, leaving facilities and the 

communities around them unacceptably vulnerable to terrorist attacks. 

HENRY A. WAXMAN. 

G.K. BUTTERFIELD. 

LOIS CAPPS. 

BOBBY L. RUSH. 

ELIOT L. ENGEL. 

EDWARD J. MARKEY. 

DONNA M. CHRISTENSEN. 

ANNA G. ESHOO. 

FRANK PALLONE, JR. 

DORIS O. MATSUI. 

Æ 


smartinez on DSK6TPTVN1PROD with REPORTS