U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

99–010 

" ! SENATE 

111TH CONGRESS

2d Session 

REPORT

2010

111–370 

Calendar No. 700 

CONTINUING CHEMICAL FACILITIES 

ANTITERRORISM SECURITY ACT OF 2010 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

H.R. 2868 

TO AMEND THE HOMELAND SECURITY ACT OF 2002 TO ENHANCE 

SECURITY AND PROTECT AGAINST ACTS OF TERRORISM 

AGAINST CHEMICAL FACILITIES, TO AMEND THE SAFE DRINKING WATER ACT TO ENHANCE THE SECURITY OF PUBLIC 

WATER SYSTEMS, AND TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO ENHANCE THE SECURITY OF WASTEWATER TREATMENT WORKS, AND FOR OTHER PURPOSES 

DECEMBER 16, 2010.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

CHRISTOPHER A. COONS, Delaware 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

SCOTT P. BROWN, Massachusetts 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

MARK KIRK, Illinois 

MICHAEL L. ALEXANDER, Staff Director 

KEVIN J. LANDY, Chief Counsel 

HOLLY A. IDELSON, Counsel 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

ROBERT L. STRAYER, Minority Director for Homeland Security Affairs 

DEVIN F. O’BRIEN, Minority Professional Staff Member 

TRINA DRIESSNACK TYRER, Chief Clerk 


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Calendar No. 700 

111TH CONGRESS SENATE REPORT " ! 2d Session 111–370 

CONTINUING CHEMICAL FACILITIES ANTITERRORISM 

SECURITY ACT OF 2010 

DECEMBER 16, 2010.—Ordered to be printed 

Mr. LIEBERMAN, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany H.R. 2868] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (H.R. 2868) to amend the Homeland 

Security Act of 2002 to enhance security and protect against acts 

of terrorism against chemical facilities, to amend the Safe Drinking 

Water Act to enhance the security of public water systems, and to 

amend the Federal Water Pollution Control Act to enhance the security of wastewater treatment works, and for other purposes, having considered the same, reports favorably thereon with an amendment and recommends that the bill do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background and Need for the Legislation ................................................... 2 

III. Legislative History ......................................................................................... 4 

IV. Section-by-Section Analysis .......................................................................... 6 

V. Evaluation of Regulatory Impact .................................................................. 7 

VI. Congressional Budget Office Cost Estimate ................................................ 7 

VII. Changes to Existing Law Made by the Bill, as Reported ........................... 11 

I. PURPOSE AND SUMMARY

The purpose of H.R. 2868 is to reauthorize the Department of 

Homeland Security’s Chemical Facility Anti-Terrorism Standards 

(CFATS), which regulates security at high-risk facilities that make 

or use hazardous chemicals. Thousands of such facilities exist in 

the United States, and a successful terrorist attack on any of them 

could cause extensive harm. The CFATS program requires these 

high-risk facilities to design and implement site security plans to 


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1 Chemical Attack on America: How Vulnerable Are We? Hearing Before the Senate Comm. On 

Homeland Security and Governmental Affairs, S.Hrg. 109–62; Is the Federal Government Doing 

Enough to Secure Chemical Facilities and Is More Authority Needed? Hearing Before the Senate 

Comm. On Homeland Security and Governmental Affairs, S.Hrg. 109–175; Chemical Facility Security: What is the Appropriate Federal Role? Hearing before the Senate Comm. on Homeland 

Security and Governmental Affairs, Parts I and II (S.Hrg. 109–382). 2S. Rept. 109–332, Report of the Committee on Homeland Security and Governmental Affairs 

of the United States Senate to Accompany S. 2145, pp. 7–17. 3S. 2145 was introduced by Sens. Collins and Lieberman, with original cosponsors Sens. Coleman, Carper and Levin. 4The Homeland Security Appropriations Act, 2007, P.L. 109–295, Section 550 (6 U.S.C. § 121 

note). 5 6 CFR Part 27 (April 9, 2007). 

deter or prevent such attacks, and to respond more effectively if an 

attack does occur. As reported by the Committee, H.R. 2868 would 

extend the program until October 4, 2013, and add several voluntary features to the program. 

II. BACKGROUND AND NEED FOR LEGISLATION

In the aftermath of the September 11, 2001 terrorist attacks, security experts and policymakers focused on the potential threat 

posed by thousands of facilities that make or use hazardous chemicals. A myriad of civic and industrial operations—including water 

purification, pharmaceutical production, oil refining and more—incorporate hazardous chemicals into their activities. Many of these 

facilities already faced environmental and safety regulations, but 

prior to the CFATS program they did not face any federal security 

program aimed at preventing and deterring a deliberate attack 

seeking to exploit the toxicity of such chemicals. Various expert reports and planning scenarios estimate that tens of thousands of 

people could be killed or hurt by a successful attack on certain 

high-risk chemical facilities. 

Early legislative proposals to regulate chemical site security did 

not advance in the years immediately following the 9/11 attacks. 

In the 109th Congress, this Committee held numerous hearings 

on chemical site security that underscored the need for a federal 

program.1 Witnesses from the Bush Administration, the U.S. 

Chemical Safety and Hazard Investigation Board, the Government 

Accountability Office and elsewhere testified that chemical facilities present unique and potentially devastating security risks, and 

that voluntary efforts to secure them were not sufficient.2 In 2006, 

the Committee approved a bill, S. 2145 (S. Rept. 109–332) to create 

a chemical site security program at the Department of Homeland 

Security (DHS).3 While that particular bill was not considered by 

the full Senate, Congress later that year included an authorization 

for a DHS-led chemical security program in the Fiscal Year 2007 

appropriations bill for the Department of Homeland Security.4 DHS 

issued rules for the program on April 9, 2007, which became effective on June 9, 2007.5

That program, known as the Chemical Facility Anti-terrorism 

Standards or CFATS, is under way. The original authorization included a 3-year sunset that would have terminated the program on 

October 4, 2009. The program was extended until October 4, 2010 

by the Fiscal Year 2010 appropriations bill for the Department of 


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6The Department of Homeland Security Appropriations Act, 2010, P.L. 111–83, Section 550. 

A bill making continuing appropriations for portions of Fiscal Year 2011 further extended 

CFATS until December 3, 2010. Continuing Appropriations Act, 2011, P.L. 111–242, Section 

124. A second bill making continuing appropriations for Fiscal Year 2011 extended the program 

until December 18, 2010. P.L. 111–290. 7The Budget of the United States Government, Fiscal Year 2011, Appendix, p. 574. 

8 Chemical Security: Assessing Progress and Charting a Path Forward: Hearing Before the 

Senate Comm. on Homeland Security and Governmental Affairs, 111th Cong. (2010) (statement 

of Rand Beers). Since Under Secretary Beers’ testimony, hundreds of those facilities were subsequently able to ‘‘tier out’’ of the program due to clarifications in their submissions or voluntary 

modifications in their operations. 

Homeland Security.6 The President requested another one-year extension as part of the Fiscal Year 2011 budget request.7

The CFATS program generally applies to any facility that possesses more than a threshold amount of certain dangerous chemicals. Close to 38,000 facilities have completed ‘‘Top Screen’’ assessments to determine whether they fall under the program, and more 

than 6,000 have been preliminarily ‘‘screened into’’ the program by 

DHS.8 These facilities are reviewed for assignment to one of four 

risk tiers, with facilities in the riskiest tiers required to meet the 

most strenuous security requirements. As of October 2010, more 

than 4,700 high-risk facilities had received final tiering decisions 

under the CFATS program. 

While extensions of the sunset provision are sufficient to keep 

the CFATS program going, there is widespread interest in a permanent or more long-term authorization to add predictability and 

stability to the program. Some lawmakers and advocates would 

also like to expand or revise the existing program in certain respects. 

As passed by the House, H.R. 2868 would permanently authorize, 

and make several significant changes to, the existing CFATS program. For example, the bill would require facilities covered under 

the existing Maritime Transportation Security Act (MTSA) to submit additional information to the Secretary to determine if such facilities present a similar security risk to those in the CFATS program and should be required to meet CFATS security standards. 

The bill would create a new security program governing drinking 

and wastewater facilities, which would be administered by the Environmental Protection Agency, in coordination with DHS. The 

House bill also would require all CFATS facilities to consider process modifications to reduce the consequences of a terrorist attack. 

If certain conditions were met, DHS would be allowed to mandate 

that covered facilities in the top two risk tiers implement these 

process changes. The House-passed bill also included additional 

changes. During a business meeting on July 28, 2010, the Committee considered H.R. 2868 and adopted a complete substitute 

that would extend the CFATS program for three years, until October 4, 2013. The substitute effectively would preserve the existing 

CFATS program, subject to any future adjustments DHS might implement through regulations or other directives consistent with the 

existing statutory authorization in Section 550 of P.L. 109–295. 

The substitute also would add new provisions to enhance implementation of the existing program. The substitute amendment 

would create voluntary exercise and training programs to improve 

collaboration with the private sector and State and local officials. 

It would create a voluntary technical assistance program to allow 

DHS, at the request of an owner or operator of a covered facility, 


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9 H. Rept. 111–205 Part 1 (Committee on Homeland Security, July 13, 2009); H. Rept. 111– 

205 Part 2 (Committee on Energy and Commerce, October 23, 2009). The bill’s provisions regarding drinking water facilities are discussed in a related report: H. Rept. 111–313 to accompany H.R. 3258, The Drinking Water System Security Act of 2009. 

to provide non-binding assistance or recommendations on CFATS 

compliance or to otherwise reduce the risk or consequences of a potential attack on the facility. The Secretary also would be directed 

to establish a program to collect information on best practices and 

cost-effective technologies for implementing CFATS and the voluntary technical assistance program, and to voluntarily share such 

information with covered facilities, consistent with certain protections for sensitive or proprietary data. The amendment would also 

create an advisory board to help DHS implement the voluntary 

technical assistance program and the CFATS program generally. 

III. LEGISLATIVE HISTORY

H.R. 2868 was introduced on June 15, 2009, by Representative 

Bennie Thompson, Chairman of the Committee on Homeland Security, Representative Henry Waxman, Chairman of the Committee 

on Energy and Commerce, and others. The Committee on Homeland Security ordered the bill reported on June 23, 2009, by a vote 

of 18 to 11. The bill was next considered by the Committee on Energy and Commerce. That Committee ordered the bill reported, as 

amended, on October 21, 2009, on a 29 to 18 vote. The full House 

approved the bill 230–193 on November 6, 2009.9

The bill was received in the Senate and referred to this Committee. On March 3, 2010, the Committee held a hearing on the 

CFATS program, titled ‘‘Chemical Security: Assessing Progress and 

Charting a Path Forward.’’ At that hearing, the DHS Under Secretary for the National Protection and Programs Directorate testified that the CFATS program is an important addition to the nation’s homeland security efforts and should be extended and modified in several respects. Under Secretary Beers, joined by Peter S. 

Silva, Assistant Administrator for Water at the U.S. Environmental Protection Agency, laid out several key Administration 

‘‘principles’’ related to the reauthorization of CFATS and other associated matters. First, the Administration endorsed the permanent authorization of the CFATS program. Second, Under Secretary Beers proposed creating an additional, parallel security program for drinking water and wastewater treatment facilities, led by 

the Environmental Protection Agency but supported by DHS. Within the modified CFATS program, the Administration proposed that 

all covered facilities be required to consider implementation of ‘‘inherently safer technology’’ or IST, and sought the ability to mandate the implementation of IST options for facilities in the two 

riskiest tiers, subject to various conditions. Drinking water and 

wastewater treatment facilities would be subject to similar requirements with respect to IST. In addition to these modifications, the 

Administration recommended that facilities regulated under the 

Maritime Transportation Security Act (MTSA) meet equivalent security standards to those facilities under CFATS to ensure consistent security across the different regulatory regimes. 

A second panel included witnesses from different stakeholder 

groups. 


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10Sivin’s union is part of a coalition of more than 50 environmental, labor and other citizen 

groups, known as the Blue-Green Coalition, lobbying for expanded and permanent chemical site 

security rules. A statement from the Coalition is included in the record for the March 3, 2010 

hearing. The statement notes that the current CFATS program omits hundreds of facilities that 

are potentially high-risk (i.e. drinking water and wastewater treatment facilities and those in 

port areas), and does nothing to explicitly promote or require the adoption of safer processes. 

At Senator Lieberman’s request, the record also includes a report from the Center for American 

Progress detailing dozens of instances in which facilities are using extremely hazardous materials or processes when safer alternatives may exist (and in some cases have been implemented 

by similar facilities). 11Senator Collins also entered into the record letters indicating support for S. 2996 from 28 

other organizations and businesses. Senator Collins also entered statements for the record from 

Dr. Sam Mannan, Director of the Mary Kay O’Connor Process Safety Center at Texas A&M University; Mr. Tom Curtic, Deputy Executive Director for Governmental Affairs for the American 

Water Works Association (AWWA); and the National Petrochemical & Refiners Association 

(NPRA). In his testimony for the record, Dr. Mannan focused on the need for far more research 

and data before a federal mandate to implement or even consider ‘‘inherently safer technology’’ 

could be incorporated into the law. AWWA’s testimony raised its concerns with the ability of 

the federal government to mandate ‘‘inherently safer technology’’ at water utilities, stressing its 

belief that ‘‘such decisions must be based on critical local factors’’ and that any legislation on 

the issue ‘‘must retain local decision making authority.’’ NPRA’s testimony expressed support 

for S. 2996 and urged that ‘‘decisions [regarding ‘inherently safer technology’] should be left to 

individual sites and not mandated by DHS.’’ 

Darius Sivin, legislative representative for the International 

Union, United Automobile, Aerospace and Agricultural Implement 

Workers of America, endorsed many key features of H.R. 2868, 

such as creating security requirements for drinking water and 

wastewater treatment facilities and requiring facilities to consider, 

and in some cases implement, safer technologies. Sivin testified 

that his union represents workers in a number of facilities that use 

high-risk chemicals, and that those chemicals put both the workers 

and surrounding communities in potential danger in the event of 

an accident or terrorist attack. Sivin said he believes at least some 

of these facilities and other high-risk facilities can implement safer 

processes that would improve security without risking jobs. He 

cited the example of numerous wastewater treatment facilities that 

have converted from chlorine gas to ultraviolet light or liquid chlorine bleach.10

However, witnesses for two chemical industry trade associations 

said it is premature to change the CFATS program, and expressed 

support for a bill by Senator Collins, S. 2996, to extend the existing 

CFATS rules for an additional five years—until October 4, 2015.11

Timothy J. Scott, Chief Security Officer at Dow Chemical Company 

and testifying on behalf of the American Chemistry Council, said 

the five-year extension would give DHS time to fully implement 

and assess the existing rules and give facilities needed regulatory 

stability. Scott said companies are in the process of complying with 

CFATS, and the program will require many of those facilities to 

make significant new investments in security. 

Stephen Poorman, testifying for the Society of Chemical Manufacturers and Affiliates, warned that the House bill would cost jobs 

and threaten production of popular products. Poorman criticized a 

requirement that all facilities covered by CFATS consider IST options and the ability of DHS to mandate implementation for the 

riskiest facilities under certain conditions, warning that such process decisions are too complex to lend themselves to regulation. He 

said some companies are already adopting alternative processes as 

a means to drop out of the CFATS program or move to a lower risk 

tier within the program. 

The Committee considered H.R. 2868 on July 28, 2010. At the 

markup, Chairman Lieberman endorsed extending the CFATS proVerDate Mar 15 2010 05:05 Dec 20, 2010 Jkt 099010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR370.XXX SR370

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12www.hsgac.senate.gov/public/index.cfm?FuseAction = Files.View&&FileStore id=16717035- 

b7ed-40ae-965d-1647lef1e39b 13Senator Carper circulated and discussed an amendment to require facilities in the CFATS 

program to require all facilities in the program to assess inherently safer technology options to 

improve security—similar to an existing state requirement in New Jersey. Senator Carper urged 

members to consider adding such a requirement to the CFATS program as the reauthorization 

bill advanced, but did not formally offer the amendment or seek a vote on it. 

gram, and also expressed support for changes included in the 

House bill to require CFATS facilities to assess and in some cases 

implement safer technologies, and to extend parallel security requirements to drinking and wastewater facilities.12 Senator Collins 

said the existing CFATS program is effective and that it would be 

premature and potentially harmful to make major changes. Senator 

Collins, on behalf of herself and Senators Pryor, Voinovich, and 

Landrieu, offered a substitute amendment to strike all of the 

House bill and replace it with a three-year extension of the existing 

CFATS rules, augmented by several additional features such as 

voluntary exercise and training programs, voluntary technical assistance programs, and increased information sharing between 

DHS and industry on best practices. The Committee adopted the 

Collins substitute amendment by unanimous consent.13 Members 

then voted 13–0 to report the bill as amended, with Senators 

Lieberman, Levin, Akaka, Carper, Pryor, Landrieu, McCaskill, 

Tester, Collins, Brown, McCain, Voinovich, and Ensign voting Yea. 

No Senator voted Nay. For the record only, Senators Burris, Kaufman, Coburn, and Graham voted Yea by proxy. There were no senators voting Nay by proxy. 

IV. SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

This section names the Act the ‘‘Continuing Chemical Facilities 

Antiterrorism Security Act of 2010.’’ 

Section 2. Extension of Chemical Facilities Security Program 

(a) This subsection extends the authorization for the Chemical 

Facilities Anti-Terrorism Standards, Section 550(b) of Homeland 

Security Appropriations Act, 2007 (6 U.S.C. 121 note), for three 

years until October 4, 2013. 

(b) This subsection includes several enhancements to the existing 

CFATS program: a voluntary chemical security training program; 

a voluntary chemical security exercise program; a voluntary technical assistance program; and creation of an advisory board to help 

implement the technical assistance program. 

Voluntary Chemical Security Training Program—The legislation 

would direct the Administrator of the Federal Emergency Management Agency (FEMA), in coordination with the DHS Under Secretary for National Protection and Programs (NPPD), to establish 

a voluntary training program to enhance the capabilities of highrisk chemical facilities to prevent, prepare for, respond to, mitigate 

against, and recover from threatened or actual acts of terrorism, 

and natural and man-made disasters. The program should encompass governmental and private sector entities across multiple disciplines, and should be coordinated with training offered by other 

institutions. 


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Voluntary Chemical Security Exercise Program—The legislation 

also directs FEMA, in coordination with NPPD, to establish a voluntary exercise program to test and evaluate the capabilities of 

governmental and private sector entities to prevent, prepare for, 

mitigate against, respond to, and recover from an attack or disaster 

at facilities using hazardous chemicals. The program should include live exercises for high risk facilities, and should be assessed 

to establish best practices that can be shared with affected stakeholders. 

Voluntary Technical Assistance Program—The legislation would 

direct the DHS Assistant Secretary for Infrastructure Protection, in 

coordination with the Under Secretary for Science and Technology, 

to create a voluntary technical assistance program to provide nonbinding assistance or recommendations to facilities on measures to 

reduce the risk of or consequences from a potential attack on the 

facility, such as employing safer chemicals or processes. The program would receive at least $5 million annually, to be drawn from 

the overall CFATS appropriation. 

Advisory Board—The legislation would direct the Secretary of 

Homeland Security to establish a 9-member Chemical Facility Security Advisory Board to advise the Department on implementation 

of the CFATS program, including the voluntary technical assistance program created by this section. The board must include at 

least 5 owners or operators of a covered facility, at least two employees of such facilities, and two additional experts in the fields 

of chemistry, security, process design and engineering, and other 

related fields. This board would be established under section 871 

of the Homeland Security Act, and would be subject to the Federal 

Advisory Committee Act (5 U.S.C. App.). 

V. EVALUATION OF REGULATORY IMPACT

Pursuant to the requirements of paragraph 11(b) of rule XXVI of 

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of this bill. As indicated in the Congressional 

Budget Office cost estimate for this bill (included below), the bill 

as amended would extend an existing regulatory program with few 

changes and should not result in significant additional costs beyond 

the current costs of complying with the CFATS program. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, November 16, 2010. 

Hon. JOSEPH I. LIEBERMAN, 

Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2868, the Continuing 

Chemical Facilities Antiterrorism Security Act of 2010. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Jason Wheelock. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 


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H.R. 2868—Continuing Chemical Facilities Antiterrorism Security 

Act of 2010 

Summary: H.R. 2868 would extend through fiscal year 2013 the 

Department of Homeland Security’s (DHS’s) authority to regulate 

security at chemical facilities that present a high level of security 

risk. In addition, the act would establish programs to provide technical assistance to such facilities on methods to reduce the risk of 

or consequences from acts of terrorism, and security training for facilities personnel and first responders. 

CBO estimates that implementing this legislation would cost 

$414 million over the 2011–2015 period, assuming appropriation of 

the necessary amounts. Enacting H.R. 2868 would not affect direct 

spending or revenues; therefore, pay-as-you-go procedures do not 

apply. 

H.R. 2868 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. 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 ($70 million and $141 million, 

respectively, in 2010, adjusted annually for inflation). 

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 2868 is shown in the following table. The cost 

of this legislation falls within budget functions 050 (national defense) and 450 (community and regional development). 

By fiscal year, in millions of dollars— 

2011 2012 2013 2014 2015 2011– 

2015 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Chemical Facilities Antiterrorism Security Program: 

Estimated Authorization Level ............................................. 84 86 88 0 0 258 

Estimated Outlays ............................................................... 29 59 82 54 24 248 

FEMA Chemical Security Programs: 

Estimated Authorization Level ............................................. 18 35 36 37 38 164 

Estimated Outlays ............................................................... 11 28 36 37 38 150 

Voluntary Technical Assistance Program: 

Authorization Level .............................................................. 5 5 5 0 0 15 

Estimated Outlays ............................................................... 2 4 5 3 1 15 

Chemical Facility Advisory Board: 

Estimated Authorization Level ............................................. * * * * * 1 

Estimated Outlays ............................................................... * * * * * 1 

Total Changes: 

Estimated Authorization Level ............................................. 107 126 129 37 38 438 

Estimated Outlays ............................................................... 42 91 123 94 63 414 

Notes: Components do not sum to totals because of rounding. 

FEMA = Federal Emergency Management Agency; * = less than $500,000. 

Basis of estimate: For this estimate, CBO assumes that H.R. 

2868 will be enacted in calendar year 2010, that the estimated and 

specified amounts will be appropriated each year, and that outlays 

will follow historical spending patterns for existing or similar programs. 


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Chemical Facilities Antiterrorism Security Program 

The act would extend for three years the authority for DHS to 

regulate security at chemical facilities in the United States that 

present a high level of security risk. Under the current program, 

DHS reviews the security plans of high-risk facilities and conducts 

on-site inspections to evaluate compliance with site-specific security 

plans and the Chemical Facility Antiterrorism Standards (CFATS). 

Not including personnel compensation, DHS received approximately $56 million in fiscal year 2010 to conduct such activities. In 

addition, CBO estimates that DHS received $27 million in that 

same year to pay for salaries and benefits of the DHS employees 

associated with the CFATS program. Based on current personnel 

levels and expenditures, CBO estimates that continuing this effort 

would require the employment of approximately 200 personnel 

within DHS’s National Protection and Programs Directorate, and 

would cost about $250 million over the 2011–2015 period. 

FEMA Chemical Security Programs 

H.R. 2868 contains provisions that would direct the Federal 

Emergency Management Agency (FEMA) to provide voluntary 

training and exercises for high-risk chemical facilities to prevent, 

prepare for, respond to, and recover from natural and man-made 

disasters and other emergencies. Training would target officials 

and emergency responders from all levels of government and the 

private sector, as well as individuals located in neighborhoods adjacent to such facilities. Based on current and historical expenditures 

of similar preparedness programs—including FEMA’s Radiological 

Emergency Preparedness Program—and assuming lower costs in 

2011 for enactment part way through the fiscal year, CBO estimates that those provisions would cost $150 million over the 2011– 

2015 period. 

Voluntary Technical Assistance Program 

H.R. 2868 would establish a technical assistance program 

through which DHS would provide assistance and recommendations to chemical facilities to enable such facilities to reduce the 

risk of and consequences from acts of terrorism. As part of the program, DHS would be required to develop a repository of information on effective practices for implementing CFATS. The act would 

authorize the appropriation of $5 million annually through 2013 to 

provide technical assistance to facilities that request aid under the 

program. Based on the authorized amounts, CBO estimates that 

implementing this provision would cost $15 million over the 2011– 

2015 period. 

Chemical Facility Advisory Board 

The act would require that the Secretary of DHS establish a 

Chemical Facility Advisory Board. The board would consist of nine 

members, seven of whom would represent chemical facilities covered by the CFATS and two of whom would be experts on topics 

related to the security of chemical facilities. CBO estimates, based 

on the costs associated with other DHS advisory bodies, that implementing this provision would cost $1 million over the 2011–2015 

period. 

Pay-As-You-Go considerations: None. 


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Intergovernmental and private-sector impact: H.R. 2868 would 

extend intergovernmental and private-sector mandates, as defined 

in UMRA, on owners and operators of public and private facilities 

where certain chemicals are present. 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 ($70 million and $141 million, 

respectively, in 2010, adjusted annually for inflation). 

The act would extend, for three years, mandates contained in 

CFATS, which are set to expire in December 2010. Those mandates 

require owners and operators of public and private facilities where 

certain chemicals are present to assess the vulnerability of their facilities to a terrorist incident and to prepare and implement security plans. The act also would extend mandates that require owners and operators of such facilities to maintain records, periodically 

submit reviews of the adequacy of vulnerability assessments or 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. Because 

facilities must currently comply with the existing CFATS regulations, CBO estimates that the cost of continuing to comply with 

those regulations would be small relative to the annual thresholds 

established in UMRA. 

Previous CBO estimates: On October 23, 2009, CBO transmitted 

a cost estimate for H.R. 2868 as ordered reported by the House 

Committee on Energy and Commerce on October 22, 2009. In addition, on July 9, 2009, CBO transmitted a cost estimate for H.R. 

2868 as ordered reported by the House Committee on Homeland 

Security on June 23, 2009. Both of those versions of the legislation 

would permanently authorize and expand the authority of DHS to 

regulate security at chemical facilities and would authorize the appropriation of $900 million over the 2011–2013 period for such purpose, a significant increase over current spending levels. 

The Senate version of the legislation does not provide a specific 

authorization of appropriations and would extend the existing authority for DHS to regulate chemical facilities until the end of fiscal 

year 2013. The estimated costs for this version of the legislation reflect its more limited scope. 

Estimate prepared by: Federal Costs: Jason Wheelock (DHS) and 

Daniel Hoople (FEMA); Impact on State, Local, and Tribal Governments: Melissa Merrell; Impact on the Private Sector: Paige Piper/ 

Bach. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


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VII. CHANGES TO EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by H.R. 2868 as 

reported are shown as follows (existing law proposed to be omitted 

is enclosed in brackets, new matter is printed in italic, and existing 

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

UNITED STATES CODE 

TITLE 6—DOMESTIC SECURITY 

CHAPTER 1—HOMELAND SECURITY ORGANIZATION 

* * * * * * * 

SUBCHAPTER II—INFORMATION ANALYSIS AND 

INFRASTRUCTURE PROTECTION 

Part A—Information and Analysis and Infrastructure 

Protection; Access to Information 

SEC. 121. INFORMATION AND ANALYSIS AND INFRASTRUCTURE PROTECTION. 

* * * * * * * 

REGULATIONS 

Pub. L. 109–295, title V, Sec. 550, Oct. 4, 2006, 120 Stat. 1388, 

as amended by Pub. L. 110–161, div. E, title V, Sec. 534, Dec. 26, 

2007, 121 Stat. 2075; Pub. L. 111–83, title V, Sec. 550, Oct. 28, 

2009, 123 Stat. 2177, provided that: 

‘‘(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 øOctober 4, 2010¿ October 4, 2013. 

* * * * * * * 

TITLE XXI—CHEMICAL FACILITY SECURITY 

SEC. 2101. DEFINITIONS. 

In this title— 

(1) the term ‘‘Board’’ means the Chemical Facility Security 

Advisory Board established under section 2105(a); 

(2) the term ‘‘Chemical Facility Anti-Terrorism Standards’’ 

means the interim final regulations issued by the Secretary 

under section 550 of the Department of Homeland Security Appropriations Act, 2007 (6 U.S.C. 121 note); and 

(3) the term ‘‘covered chemical facility’’ means a chemical facility subject to the Chemical Facility Anti-Terrorism Standards. 


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SEC. 2102. CHEMICAL SECURITY TRAINING PROGRAM. 

(a) ESTABLISHMENT.—Acting through the Administrator of the 

Federal Emergency Management Agency and in coordination with 

the Under Secretary for National Protection and Programs, the Secretary shall establish a voluntary chemical security training program (referred to in this section as the ‘‘training program’’) for the 

purpose of enhancing the capabilities of high-risk chemical facilities 

to prevent, prepare for, respond to, mitigate against, and recover 

from threatened or actual acts of terrorism, natural disasters, and 

other man-made disasters. 

(b) REQUIREMENTS.—The training program shall provide validated voluntary training that— 

(1) reaches multiple disciplines, including Federal, State, and 

local government officials, commercial personnel and management, and governmental and nongovernmental emergency response providers; 

(2) provides training at the awareness, performance, and 

management and planning levels; 

(3) uses multiple training mediums and methods; 

(4) is coordinated with training provided by government 

training facilities, academic institutions, private organizations, 

and other entities that provide specialized, state-of-the-art training for governmental and nongovernmental emergency responder providers or commercial personnel and management; 

(5) uses, as appropriate, government training facilities, 

courses provided by community colleges, public safety academies, State and private universities, and other facilities; 

(6) is consistent with, and supports implementation of, the 

National Incident Management System, the National Response 

Framework, the National Infrastructure Protection Plan, the 

National Preparedness Guidance, the National Preparedness 

Goal, the National Maritime Transportation Security Plan, and 

other such national initiatives, and any successors thereto; 

(7) is evaluated against clear and consistent performance 

measures; 

(8) addresses security requirements under chemical facility security plans; and 

(9) educates, trains, and involves individuals in neighborhoods around chemical facilities on how to observe and report 

security risks. 

SEC. 2103. CHEMICAL SECURITY EXERCISE PROGRAM. 

(a) IN GENERAL.—Acting through the Administrator of the Federal Emergency Management Agency and in coordination with 

Under Secretary for National Protection and Programs, the Secretary shall develop a voluntary chemical security exercise program 

(referred to in this section as the ‘‘exercise program’’) for the purpose 

of offering voluntary testing and evaluation of the capabilities of the 

Federal Government, State governments, commercial personnel and 

management, governmental and nongovernmental emergency response providers, the private sector, or any other organization or entity, as the Secretary determines to be appropriate, to prevent, prepare for, mitigate against, respond to, and recover from acts of terrorism, natural disasters, and other emergencies at chemical facilities. 


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(b) REQUIREMENTS.—Under the exercise program, the Secretary 

shall conduct, on a periodic basis, voluntary joint security exercises 

at chemical facilities that are— 

(1) scaled and tailored to the needs of each chemical facility; 

(2) for the highest risk chemical facilities, as determined by 

the Secretary, live training exercises; 

(3) as realistic as practicable and based on current risk assessments, including credible threats, vulnerabilities, and consequences; 

(4) consistent with the National Incident Management System, the National Response Framework, the National Infrastructure Protection Plan, the National Preparedness Guidance, 

the National Preparedness Goal, the National Maritime Transportation Security Plan, and other such national initiatives, 

and any successors thereto; 

(5) evaluated against clear and consistent performance measures; 

(6) assessed to learn best practices, which shall be shared 

with appropriate Federal, State, and local officials, commercial 

personnel and management, governmental and nongovernmental emergency response providers, and the private sector; 

(7) followed by remedial action in response to lessons learned; 

and 

(8) designed to assist State and local governments and chemical facilities in designing, implementing, and evaluating exercises that— 

(A) conform to the requirements of this paragraph; and 

(B) are consistent with any applicable Buffer Zone Protection Plan, State homeland security plan, or urban area 

homeland security plan. 

SEC. 2104. VOLUNTARY TECHNICAL ASSISTANCE PROGRAM. 

(a) ESTABLISHMENT.—The Secretary, acting through the Assistant 

Secretary for Infrastructure Protection, in coordination with the 

Under Secretary for Science and Technology, and in consultation 

with the Board, shall establish a voluntary technical assistance program under which, upon request by the owner or operator of a covered chemical facility, and subject to the availability of resources at 

the Department, the Secretary may provide nonbinding assistance 

or recommendations to the owner or operator to— 

(1) reduce the risk or consequences associated with a successful act of terrorism against a covered chemical facility, including the reduction of risk or consequences— 

(A) sufficient to decrease the risk-based tier assigned to 

the covered chemical facility under the Chemical Facility 

Anti-Terrorism Standards; or 

(B) such that the covered chemical facility no longer presents a high level of security risk; or 

(2) aid in compliance with the risk based performance standards applicable to the covered chemical facility under the 

Chemical Facility Anti-Terrorism Standards. 

(b) VOLUNTARY NATURE OF ASSISTANCE.— 

(1) IN GENERAL.—The decision to— 

(A) participate in the voluntary technical assistance program under this section; or 


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(B) implement any assistance or recommendations provided by the Secretary under this section, 

shall be at the sole discretion of the owner or operator of a covered chemical facility. 

(2) NO REQUIRED ASSESSMENT.—The Secretary may not require the owner or operator of a covered chemical facility to— 

(A) consider any assistance or recommendation provided 

under this section as part of a security vulnerability assessment under the Chemical Facility Anti-Terrorism Standards; or 

(B) assess, directly or indirectly, the costs, benefits, economic or technical feasibility, or practicality of implementing any assistance or recommendation provided under 

this section. 

(3) SITE SECURITY PLAN REVIEW.—If the site security plan for 

a covered chemical facility satisfies the risk-based performance 

standards applicable to the covered chemical facility under the 

Chemical Facility Anti-Terrorism Standards, the Secretary may 

not disapprove the site security plan based on— 

(A) a decision by the owner or operator of a covered 

chemical facility not to— 

(i) participate in the voluntary technical assistance 

program under this section; or 

(ii) implement assistance or a recommendation provided by the Secretary under this section; or 

(B) the presence or absence of a particular security measure. 

(4) EFFECT ON TIERING.—At the request of the owner or operator of a covered chemical facility, the Secretary shall advise 

the owner or operator of the overall effect that implementing all 

categories of assistance or recommendations provided by the 

Secretary under this section would have on the determination 

by the Secretary— 

(A) of the placement of the covered chemical facility in a 

risk-based tier under the Chemical Facility Anti-Terrorism 

Standards; or 

(B) regarding whether the covered chemical facility 

would no longer present a high level of security risk. 

(5) CIVIL LIABILITY.— (A) IN GENERAL.—Subject to subparagraph (B), no action, 

or failure to act, by the owner or operator of a covered 

chemical facility relating to assistance or a recommendation provided by the Secretary under this section shall be 

interpreted, construed, implied, or applied to create any liability or cause of action for compensation for bodily injury, any other injury, or property damage to any person 

that may result from an act of terrorism or incident at the 

covered chemical facility. 

(B) ADDITIONAL OR INTERVENING ACTS OR OMISSIONS.— Subparagraph (A) shall not apply to any injury or damage 

caused by any additional or intervening act or omission of 

the owner or operator of a covered chemical facility. 

(C) RULE OF CONSTRUCTION.—Except as provided in this 

section, nothing in subparagraph (A) shall be construed to 

abrogate or limit any right, remedy, or authority that the 


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Federal Government, any State or local government, or any 

entity or agency of the Federal Government or a State or 

local government may possess under any other provision of 

law. 

(c) BEST PRACTICES.—Subject to subsection (d), the Secretary 

shall develop a repository for information and data on best practices 

and cost-effective technologies for implementing the Chemical Facility Anti-Terrorism Standards and the voluntary technical assistance 

program under this section. 

(d) INFORMATION PROTECTION.—Any information obtained by the 

Secretary under the voluntary technical assistance program under 

this section or for purposes of subsection (c) shall— 

(1) to the extent that the information may reveal vulnerabilities or other details of the security capabilities of a covered 

chemical facility that may be exploited by terrorists, be protected as chemical-terrorism vulnerability information under 

the Chemical Facility Anti-Terrorism Standards; and 

(2) to the extent that the information may reveal trade secrets 

or commercial or financial information that is not customarily 

in the public domain, be protected as though the information 

was voluntarily shared critical infrastructure information 

under section 214, except that the requirement under section 

214 that the information be voluntarily submitted, including 

the requirement for an express statement specified in section 

214(a)(2), shall not apply to information obtained under this 

section. 

(e) REPORT ON LESSONS LEARNED.—Not later than October 4, 

2013, the Secretary, in coordination with the Board, shall submit to 

the Committee on Homeland Security and Governmental Affairs of 

the Senate and the Committee on Homeland Security of the House 

of Representatives a report regarding lessons learned from the voluntary technical assistance program under this section. 

(f) AVAILABILITY OF APPROPRIATIONS.—Of the amounts made 

available for the Chemical Facility Anti-Terrorism Standards for 

each of fiscal years 2011 through 2013, not less than $5,000,000 

shall be made available for the provision of voluntary technical assistance under this section. 

SEC. 2105. CHEMICAL FACILITY SECURITY ADVISORY BOARD. 

(a) ESTABLISHMENT.—Not later than 90 days after the date of enactment of this section, the Secretary shall establish under section 

871 a Chemical Facility Security Advisory Board. 

(b) RESPONSIBILITIES.—The Board shall advise the Secretary on 

the implementation of the Chemical Facility Anti-Terrorism Standards, including regarding the implementation of the voluntary technical assistance program under section 2103. 

(c) MEMBERSHIP.—There shall be 9 members of the Board, who 

shall be appointed by the Secretary and shall represent a geographic and substantive cross-section of the United States, including— 

(1) not less than 5 owners or operators of covered chemical facilities; 

(2) not less than 2 employees of covered chemical facilities 

with direct responsibility for process design and engineering, 

production and operations, or chemical process security, and 


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(3) not less than 2 other experts in the fields of chemistry, security, process design and engineering, process controls and instrumentation, environmental health and safety, maintenance, 

production and operations, or chemical process security. 

(d) TERM.—The members of the Board shall be appointed for such 

terms as the Secretary may determine. 

(e) APPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT.—The 

Federal Advisory Committee Act (5 U.S.C. App.) shall apply to the 

Board. 

SEC. 2106. AUTHORIZATION OF APPROPRIATIONS. 

There are authorized to be appropriated to the Secretary such 

sums as are necessary to carry out this title. 

Æ 


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