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[Senate Report 112-90]
[From the U.S. Government Publishing Office]

112th Congress
                                 SENATE
                                                                 Report
 1st Session                                                     112-90
_______________________________________________________________________

                                     

                                                       Calendar No. 194

 
   CONTINUING CHEMICAL FACILITIES ANTITERRORISM SECURITY ACT OF 2011

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 473

 TO EXTEND THE CHEMICAL FACILITY SECURITY PROGRAM OF THE DEPARTMENT OF 
               HOMELAND SECURITY, AND FOR OTHER PURPOSES

                October 20, 2011.--Ordered to be printed

        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, Kentucky
MARK BEGICH, Alaska                  JERRY MORAN, Kansas

                  Michael L. Alexander, Staff Director
       Beth M. Grossman, Deputy Staff Director and Chief Counsel
                    Holly A. Idelson, Senior Counsel
               Nicholas A. Rossi, Minority Staff Director
              Molly A. Wilkinson, Minority General Counsel
               Denise E. Zheng, Professional Staff Member
                  Trina Driessnack Tyrer, Chief Clerk

                                                       Calendar No. 194
112th Congress
                                 SENATE
                                                                 Report
 1st Session                                                     112-90

======================================================================

   CONTINUING CHEMICAL FACILITIES ANTITERRORISM SECURITY ACT OF 2011

                                _______
                                

                October 20, 2011.--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 S. 473]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 473) to extend the 
chemical facility security program of the Department of 
Homeland Security, and for other purposes, having considered 
the same, reports favorably thereon with amendments 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.............................................3
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................5
 VI. Congressional Budget Office Cost Estimate........................5
VII.  Changes to Existing Law Made by the Bill, as Reported...........8

                         I. Purpose and Summary

    The purpose of S. 473 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 deter or prevent such attacks, and to 
respond more effectively if an attack does occur. As reported 
by the Committee, S. 473 would extend the program until October 
4, 2014, 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, and the program has remained underway since.\5\
---------------------------------------------------------------------------
    \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).
    \2\S. 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.
    \3\S. 2145 was introduced by Sens. Collins and Lieberman, with 
original cosponsors Sens. Coleman, Carper and Levin.
    \4\The 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).
---------------------------------------------------------------------------
    That program, known as the Chemical Facility Anti-terrorism 
Standards or CFATS, is underway. The original authorization 
included a 3-year sunset that would have terminated the program 
on October 4, 2009. The program has since been extended on a 
series of appropriations bills.\6\ President Obama has 
requested additional one- and two-year extensions in his budget 
requests for Fiscal Year 2011 and Fiscal Year 2012, 
respectively.\7\
---------------------------------------------------------------------------
    \6\The 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. A third 
bill making continuing appropriations for Fiscal Year 2011 extended the 
program until December 21, 2010. P.L. 111-317. A fourth bill making 
continuing appropriations for Fiscal Year 2011 extended the program 
until March 4, 2011. P.L. 111-322. A fifth bill making continuing 
appropriations for Fiscal Year 2011 extended the program until March 
18, 2011. P.L. 112-4. A sixth bill making continuing appropriations for 
Fiscal Year 2011 extended the program until April 8, 2011. P.L. 112-6. 
A seventh bill making continuing appropriations for Fiscal Year 2011 
extended the program until April 15, 2011. P.L. 112-8. An eighth bill 
making continuing appropriations for Fiscal Year 2011 extended the 
program until September 30, 2011. P.L. 112-10. A bill making continuing 
appropriations for Fiscal Year 2012 extended the program until October 
4, 2011. P.L. 112-33. A second bill making continuing appropriations 
for Fiscal Year 2012 has extended the program until November 18, 2011. 
P.L. 112-36.
    \7\The Budget of the United States Government, Fiscal Year 2011, 
Appendix, p.574. The Budget of the United States Government, Fiscal 
Year 2012, Appendix, p. 533 and p. 553.
---------------------------------------------------------------------------
    The CFATS program generally applies to any facility that 
possesses more than a threshold volume and concentration of 
certain dangerous chemicals. More than 40,000 facilities have 
completed ``Top Screen'' assessments to determine whether they 
fall under the program, and more than 7,000 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 2011, 
nearly 4,000 high-risk facilities had received final tiering 
decisions under the CFATS program.
---------------------------------------------------------------------------
    \8\According to data supplied by DHS, 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.
---------------------------------------------------------------------------
    While extensions of the sunset provision are sufficient to 
keep the CFATS program going, there is widespread interest, 
including within industry, 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.
    During a business meeting on June 29, 2011, the Committee 
considered and voted to report S. 473. The bill 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 legislation 
also would add new provisions to enhance implementation of the 
existing program. S. 473 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, 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 bill would also create an advisory board 
to help DHS implement the voluntary technical assistance 
program and the CFATS program generally.

                        III. Legislative History

    S. 473 was introduced on March 3, 2011, by Senator Collins 
with Senators Pryor, Portman and Landrieu. The Committee 
considered S. 473 at its June 29, 2011, business meeting. 
Members adopted a technical amendment offered by Senator 
Collins, to correct certain dates in the bill, by voice vote. 
The bill as amended was then adopted 8-2, with Senators 
Lieberman, Carper, Pryor, Begich, Collins, Brown, Portman and 
Moran voting Yea and Senators Akaka and Coburn voting Nay. For 
the record only, Senators Levin, Landrieu, McCaskill, Tester 
and McCain voted Yea by proxy and Senators Johnson and Paul 
voted 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, 2014.
    (b) This subsection includes several enhancements to the 
existing CFATS program, which would expire when the underlying 
Section 550(b) authorities lapse: 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 high-risk 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.
    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 non-binding 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 nine-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 five 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, September 29, 2011.
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 S. 473, the Continuing 
Chemical Facilities Antiterrorism Security Act of 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Jason 
Wheelock and Daniel Hoople.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 473--Continuing Chemical Facilities Antiterrorism Security Act of 
        2011

    Summary: S. 473 would extend through fiscal year 2014 the 
Department of Homeland Security's (DHS's) authority to regulate 
security at certain chemical facilities in the United States. 
Under this authority, which is set to expire in October of 
2011, DHS operates the Chemical Facility Anti-Terrorism 
Standards (CFATS) program. The bill also would establish a 
technical assistance program to assist chemical facilities in 
complying with CFATS. Lastly, the bill would direct the Federal 
Emergency Management Agency (FEMA) to establish a training 
program and conduct exercises aimed at testing the ability of 
first responders and other entities to prevent and respond to 
acts of terrorism and natural disaster at chemical facilities.
    CBO estimates that implementing S. 473 would cost about 
$330 million over the 2012-2016 period, assuming appropriation 
of the specified and estimated amounts.
    S. 473 could result in the collection of additional civil 
penalties, which are recorded as revenues and deposited in the 
U.S. 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.
    S. 473 would extend intergovernmental and private-sector 
mandates, as defined in the Unfunded Mandates Reform Act 
(UMRA), on owners of public and private facilities where 
certain chemicals are present. Based on information from DHS 
and industry sources, CBO estimates that the aggregate cost of 
complying with the mandates would be small and 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).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 473 is shown in the following table. The 
costs of this legislation fall within budget functions 050 
(national defense) and 450 (community and regional 
development).

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2012     2013     2014     2015     2016   2012-2016
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Chemical Facility Antiterrorism Standards Program:
    Estimated Authorization Level.......................       91       92       94        0        0       277
    Estimated Outlays...................................       32       64       88       58       25       267
FEMA Chemical Security Programs:
    Estimated Authorization Level.......................       15       15       15        0        0        45
    Estimated Outlays...................................        9       15       15        6        0        45
Voluntary Technical Assistance Program:
    Authorization Level.................................        5        5        5        0        0        15
    Estimated Outlays...................................        2        4        5        3        1        15
    Total Changes:
    Estimated Authorization Level.......................      111      112      114        0        0       337
    Estimated Outlays...................................       43       83      108       67       26      327
----------------------------------------------------------------------------------------------------------------
Note: FEMA = Federal Emergency Management Agency.

    Basis of estimate: For the purposes of this estimate, CBO 
assumes that the bill will be enacted near the start of fiscal 
year 2012, that the necessary amounts will be appropriated each 
year, and that outlays will follow historical patterns for 
existing and similar programs.

Chemical Facility Antiterrorism Standards Program

    Section 2 would extend for three years DHS's authority 
under CFATS to regulate security at certain chemical facilities 
in the United States. Through 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 facilities' 
SSPs and their compliance with them.
    In 2011, DHS received approximately $90 million in 
appropriations for activities related to CFATS, with 
approximately $30 million for salaries and benefits of federal 
employees and about $60 million for program expenses. Based on 
this information, and after accounting for inflation, CBO 
anticipates that the program would require appropriations of 
$91 million in 2012 and a total of $277 million over the 2012-
2014 period. Assuming appropriation of those amounts, CBO 
estimates that implementing this provision would cost $267 
million over the 2012-2016 period.

FEMA Chemical Security Programs

    S. 473 would establish training and exercise programs 
within FEMA to improve and evaluate the capabilities of public 
and private entities to prevent, prepare for, respond to, and 
recover from a natural or man-made disaster or other emergency 
at a chemical facility. Under the bill, participation in both 
programs would be voluntary and periodic exercises would be 
directed at the highest-risk facilities. Assuming about 10 
exercises per year and based on historical expenditures for 
similar preparedness programs, CBO estimates that those 
provisions would cost $45 million over the 2012-2016 period.

Voluntary Technical Assistance Program

    S. 473 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 complying with CFATS. 
The bill would authorize the appropriation of $5 million 
annually from 2012 to 2014. As a result, CBO estimates that 
implementing the program would cost $15 million over the 2012-
2016 period.

Chemical Facility Advisory Board

    The bill would require that the Secretary of DHS establish 
a Chemical Facility Advisory Board. The board would consist of 
nine members, five of whom would be owners or operators of 
covered chemical facilities, two of whom would be employees of 
such facilities, and two of whom would be experts on topics 
related to the security of chemical facilities. The board, 
which would be authorized through fiscal year 2014, would 
advise the Secretary of DHS on the implementation of CFATS as 
well as the voluntary technical assistance program that would 
be established under S. 473. Based on the cost of other DHS 
advisory bodies, CBO estimates that implementing this provision 
would cost less than $500,000 over the 2012-2016 period.
    Pay-As-You-Go considerations: The Statutory-Pay-As-You-Go-
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. Enacting S. 473 could result in the collection of 
additional civil penalties, which are recorded as revenues and 
deposited in the U.S. Treasury. 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.
    Intergovernmental and private-sector impact: S. 473 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. 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).
    Previous CBO estimates: On July 6, 2011, CBO transmitted a 
cost estimate for H.R. 901, the Chemical Facility Anti-
Terrorism Standards Act of 2011, as ordered reported by the 
House Committee on Homeland Security on June 22, 2011. CBO 
determined that H.R. 901 would extend the same mandates as S. 
473.
    On June 15, 2011, CBO transmitted a cost estimate for H.R. 
908, the Full Implementation of the Chemical Facility Anti-
Terrorism Standards Act, as ordered reported by the House 
Committee on Energy and Commerce on May 26, 2011. CBO 
determined that H.R. 908 would extend the same mandates as S. 
473.
    CBO also determined that section 2(a) of S. 473 is similar 
to provisions of H.R. 901 and H.R. 908. The difference in 
estimated costs between the House and Senate provisions is 
primarily because of the difference in length of the 
authorizations.
    Estimate prepared by: Federal costs: Jason Wheelock (CFATS) 
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.

       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 [October 4, 2011] October 4, 2014.

           *       *       *       *       *       *       *

                 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.

``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.
    ``(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
                  ``(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 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 2012 through 2014, 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 2104.
    ``(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
          ``(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.''.

                                  
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