```

[House Report 110-550]
[From the U.S. Government Publishing Office]

110th Congress                                            Rept. 110-550
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================
 
              CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2008

                                _______
                                

                 March 14, 2008.--Ordered to be printed

                                _______
                                

 Mr. Thompson of Mississippi, from the Committee on Homeland Security, 
                        submitted the following

                              R E P O R T

                             together with

               MINORITY, ADDITIONAL, AND DISSENTING VIEWS

                        [To accompany H.R. 5577]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security, to whom was referred 
the bill (H.R. 5577) to amend the Homeland Security Act of 2002 
to extend, modify, and recodify the authority of the Secretary 
of Homeland Security to enhance security and protect against 
acts of terrorism against chemical facilities, and for other 
purposes, having considered the same, report favorably thereon 
without amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
      Purpose and Summary.............................................2
      Background and Need for Legislation.............................2
      Hearings........................................................2
      Committee Consideration.........................................3
      Committee Votes.................................................6
      Committee Oversight Findings...................................10
      New Budget Authority, Entitlement Authority, and Tax Expenditur10
      Congressional Budget Office Estimate...........................10
      Statement of General Performance Goals and Objectives..........14
      Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
      Benefits.......................................................15
      Federal Mandates Statement.....................................16
      Advisory Committee Statement...................................16
      Constitutional Authority Statement.............................16
      Applicability to Legislative Branch............................16
      Section-by-Section Analysis of the Legislation.................16
      Changes in Existing Law Made by the Bill, as Reported..........29
      Minority, Additional, and Dissenting Views.....................60

                          Purpose and Summary

    The purpose of H.R. 5577 is to amend the Homeland Security 
Act of 2002 to extend, modify, and recodify the authority of 
the Secretary of Homeland Security to enhance security and 
protect against acts of terrorism against chemical facilities, 
and for other purposes.

                  Background and Need for Legislation

    In 1984, a chemical facility in Bhopal, India accidentally 
released 40 tons of methyl isocyanate. The initial exposure 
killed approximately 3,000 people, and at least 15,000 more 
have died from illnesses related to the accident. The tragic 
event in Bhopal was an accident; the consequences of a 
deliberate terrorist attack could be much worse.
    Chemical facilities are an integral part of the United 
States economy, generating $550 billion in annual revenues. 
These facilities, often located in densely populated areas, 
hold many chemicals that can cause serious harm to humans and 
the environment if used maliciously or without sufficient care. 
Storage and use of potentially dangerous or hazardous chemicals 
near large populations centers, as well as their economic 
importance, make U.S. chemical facilities attractive terrorist 
targets. As a result, the Chemical Sector is among the 17 
critical infrastructure and key resources (CI/KR) sectors under 
the National Infrastructure Protection Plan, pursuant to 
Homeland Security Presidential Directive-7 (HSPD-7).
    Section 550 of the Homeland Security Appropriations Act of 
2007 (P.L. 109-295) authorizes the Department of Homeland 
Security (Department) to regulate the Nation's chemical 
facilities. Pursuant to that mandate, the Department issued the 
Chemical Facility Anti-Terrorism Standards (CFATS) in June 
2007. These standards require chemical facilities to report the 
amounts and types of chemicals on site so that the Department 
can determine whether a facility will be further regulated by 
CFATS rules. The Secretary will place regulated facilities into 
one of four tiers, based on risk and performance. The 
facilities placed in the highest-risk tier will be subject to 
the most stringent security required. The CFATS regulations, 
which have only recently begun to be implemented, will sunset 
in October 2009.
    Because the continued regulation of our Nation's chemical 
facilities is essential for the protection of our citizens 
against terrorist attacks, this legislation is needed to 
continue the implementation of CFATS regulations. H.R. 5577 
requires each CFATS-regulated chemical facility to conduct a 
security vulnerability assessment and subsequently implement a 
site security plan, as well as empowering the Department to 
inspect these facilities and ensure compliance. The Committee 
intends for H.R. 5577 to extend and make permanent the CFATS 
regime with some modifications. The current CFATS regulations 
will be improved, not disrupted, by this legislation.

                                Hearings

    On December 12, 2007, the Subcommittee on Transportation 
Security and Infrastructure Protection held a hearing on H.R. 
5577, the ``Chemical Facility Anti-Terrorism Act of 2008.'' The 
Subcommittee received testimony from Col. Robert B. Stephan, 
Assistant Secretary, Infrastructure Protection, U.S. Department 
of Homeland Security; Mr. Clyde Miller, Director, Corporate 
Security, BASF Corporation; Mr. Gerald C. Setley, Vice 
President, Region 3 Director, International Chemical Workers 
Union Council, United Food and Commercial Workers Union; Mr. 
Gary Sondermeyer, Director of Operations, New Jersey Department 
of Environmental Protection; and Dr. M. Sam Mannan, PE, CSP, 
Professor and Director, Mary Kay O'Connor Process Safety 
Center, Artie McFerrin, Department of Chemical Engineering, 
Texas A&M University System.
    On February 26, 2008, the Full Committee held a hearing on 
a Committee Print entitled ``Chemical Facility Anti-Terrorism 
Act of 2008.'' The Committee received testimony from Col. 
Robert B. Stephan, Assistant Secretary, Department of Homeland 
Security; David C. Pulham, Ph.D., Director of Compliance, 
Siegfried (USA), Inc.; and Mr. Kevin Wattier, General Manager, 
Long Beach Water Department.

                        Committee Consideration

 SUBCOMMITTEE ON TRANSPORTATION SECURITY AND INFRASTRUCTURE PROTECTION 
                             CONSIDERATION

    The Subcommittee on Transportation Security and 
Infrastructure Protection of the Committee on Homeland Security 
met, pursuant to notice, in open markup session, a quorum being 
present, on Wednesday, January 23, 2008, and ordered a 
Committee Print entitled ``To amend the Homeland Security Act 
of 2002 to extend, modify, and recodify the authority of the 
Secretary of Homeland Security to enhance security and protect 
against acts of terrorism against chemical facilities, and for 
other purposes.'' to be forwarded to the Full Committee for 
consideration, as amended, by unanimous consent.
    The Subcommittee adopted the bill, as amended, by voice 
vote.
        The following amendments were offered:
          An amendment offered by Ms. Jackson-Lee (#1), to 
        strike the proposed section 2114 insert a new section 
        2114 entitled ``Sec. 2114. Office of Chemical Facility 
        Security.'' and to insert after section 2102 (d) a new 
        section entitled ``(e) Dissemination of Best 
        Practices.''; was AGREED TO by voice vote.
          An amendment offered by Ms. Brown-Waite (#2), to 
        insert a new section after section 2115 entitled ``Sec. 
        2116. Terrorist Watchlist and Immigration Status Review 
        Required for Certain Employees of High-Risk Chemical 
        Facilities.''; was NOT AGREED TO by a record vote of 4 
        yeas and 5 nays (Roll Call Vote No. 3).

                      FULL COMMITTEE CONSIDERATION

    The Committee on Homeland Security met on March 6, 2008, to 
consider a Committee print entitled ``Chemical Facility Anti-
Terrorism Act of 2008.''
    The Committee took the following actions:
    A Committee Print, entitled ``To amend the Homeland 
Security Act of 2002 to extend, modify, and recodify the 
authority of the Secretary of Homeland Security to enhance 
security and protect against acts of terrorism against chemical 
facilities, and for other purposes.'' The ``Chemical Facility 
Anti-Terrorism Act of 2008.''; was AGREED TO, as amended, by 
record vote of 15 yeas and 7 nays (Roll Call Vote No. 16).
    Unanimous consent request by Mr. Thompson that, upon 
referral of this bill to the Committee on Homeland Security, 
upon introduction, the bill be deemed reported to the House; 
was not objected to.
    A motion by Mr. Broun to postpone consideration of the 
Committee Print until the House of Representatives has 
considered S. 2248 was TABLED.
    A motion by Mr. Dicks to table the motion by Mr. Broun to 
postpone the consideration of the Committee Print until the 
House of Representatives has considered S. 2248 was AGREED TO 
by a record vote of 15 yeas and 11 nays (Roll Call Vote No. 
12).
    The Committee then proceeded to the consideration of the 
Committee Print.
    The following amendments were offered:
    An En Bloc Amendment offered by Mr Thompson (#1); to (1) 
strike subsection (g) of the proposed section 2103 and insert a 
new subsection entitled ``Role of Employees''; (2) on page 37, 
line 1, strike ``The Secretary'' and all that follows through 
the period on line 6 and insert the following: 
``Notwithstanding the preceding sentence, the Secretary may not 
issue an order to cease operations under this paragraph to the 
owner or operator a drinking water or wastewater facility 
unless the Secretary determined that continued operation of the 
facility represents a clear and present danger to homeland 
security.''; (3) in the proposed section 2110(b)(1)(C), insert 
before the period at the end of the following: ``at a location 
within the United States''; (4) at the end of the proposed 
section 2110, insert a new subsection entitled ``(g) Publicly-
owned Water and Wastewater Treatment Facilities.''; and (5) in 
Sec. 2115, at the end of Subsec (a): In establishing this or 
any chemical, biological, and/or agricultural Centers of 
Excellence, or in reorganizing existing Centers in these areas, 
the Secretary shall recognize the unique scientific, technical, 
and funding requirements of the chemical, biological and/or 
agricultural fields to the mission of the Department of 
Homeland Security, and maintain such centers as distinct 
entities in organization and funding.; was AGREED TO by voice 
vote.
    An Amendment offered by Mr. Lungren (#2), on p. 54, line 
18, after ``covered chemical facility'' insert ``assigned to a 
high-risk tier under section 2102(C)(3)''.; was NOT AGREED TO 
by a record vote of 11 yeas and 16 nays (Roll Call Vote No. 
13).
    An Amendment offered Mr. Perlmutter (#3), to strike the 
proposed section 2114 and insert the following new section 2114 
entitled ``Sec. 2114. Security Background Checks of Covered 
Individuals at Certain Chemical Facilities.''; was AGREED TO by 
voice vote.
    An Amendment offered by Mr. Souder (#4), on page 10, line 
14, before the semicolon insert the following: ``relating to 
security of the facility.''; and page 10, line 18, insert 
``security'' before ``performance''.; was AGREED TO by voice 
vote.
    An Amendment offered by Mr. Souder (#5), on page 20, line 
1, insert after ``include'' the following: ``, to the extent 
feasible,''.; was NOT AGREED TO by voice vote.
    An Amendment offered Mr. Souder (#6), Page 56, line 8, 
strike ``and''.; page 56, line 12, strike the period and insert 
the following: ``; and''.; pager 56, after line 12, insert a 
new subsection (D); was NOT AGREED TO by a record vote of 8 
yeas and 13 nays (Roll Call Vote No. 14).
    An Amendment offered by Mr. Souder (#7), Page 57, after 
line 6, insert a new subsection ``(3) Exception.''; was NOT 
AGREED TO by a record vote of 8 yeas and 13 nays (Roll Call 
Vote No. 15).
    An amendment offered by Mr. Broun (#8) (#3A), in the 
proposed section 2114, redesignate subsections (c) through (h) 
as subsections (d) through (I), respectively.; Page 4, after 
line 3, insert a new subsection ``(c) Termination of 
Employment,''; page 2, line 8, strike ``(c)'' and insert 
``(d)''.; page 2, line 21, strike ``subsection (c)'' and insert 
``subsection (d)''; was WITHDRAWN by unanimous consent.
    A unanimous consent request by Mr. Broun to withdraw his 
amendment, was not objected to.
    A motion by Mr. Thompson that staff is authorized to make 
any technical and conforming changes to the measures considered 
today, was not objected to.
    A motion by Ms. Sanchez to authorize the Chairman to offer 
such motions as may be necessary in the House to go to 
Conference with the Senate on the bills just ordered reported 
by this Committee, or on a similar Senate bill, was not 
objected to.
    A motion by Mr. King that pursuant to Rule XIII clause 2(c) 
of the Rules of the House of Representatives Members may have 
two days in which to file Minority and additional views on each 
of the measures considered, was not objected to.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto.

                          FULL COMMITTEE VOTES

Committee on Homeland Security
Date:    Thursday, March 6, 2008
Vote on:  A motion by Mr. Dicks to table the motion by Mr. 
Broun to postpone the consideration of the Committee Print 
until the House of Representatives has considered S. 2248. Was 
AGREED to by a record vote of 15 yeas and 11 nays (Roll Call 
Vote No. 12.) As follows:

Recorded Vote Number:    12
Total:  Yeas  15   Nays  11

----------------------------------------------------------------------------------------------------------------
                                    YEA      NAY      PRESENT                           YEA     NAY     PRESENT
----------------------------------------------------------------------------------------------------------------
Mr. Bennie G. Thompson              .......  ...........  Mr. Peter T. King    ......  
----------------------------------------------------------------------------------------------------------------
Ms. Loretta Sanchez                 .......  ...........  Mr. Lamar Smith      ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey              .......  .......  ...........  Mr. Christopher      ......  ......  ..........
                                                                  Shays.
----------------------------------------------------------------------------------------------------------------
Mr. Norman D. Dicks                 .......  ...........  Mr. Mark E. Souder.  ......  
----------------------------------------------------------------------------------------------------------------
Ms. Jane Harman                     .......  ...........  Mr. Tom Davis......  ......  
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio                .......  ...........  Mr. Daniel E.        ......  
----------------------------------------------------------------------------------------------------------------
Mrs. Nita M. Lowey                .......  .......  ...........  Mr. Mike Rogers....  ......  
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton         .......  .......  ...........  Mr. David G.         ......  
----------------------------------------------------------------------------------------------------------------
Ms. Zoe Lofgren                   .......  .......  ...........  Mr. Michael T.       ......  
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee              .......  ...........  Mr. Charles W. Dent  ......  
----------------------------------------------------------------------------------------------------------------
Mrs. Donna M. Christensen           .......  ...........  Mr. Ginny Brown-     ......  ......  ..........
                                                                  Waite.
----------------------------------------------------------------------------------------------------------------
Mr. Bob Etheridge                   .......  ...........  Ms. Gus M.           ......  
----------------------------------------------------------------------------------------------------------------
Mr. James R. Langevin               .......  ...........  Mr. David Davis....  ......  
----------------------------------------------------------------------------------------------------------------
Mr. Henry Cuellar                   .......  ...........  Mr. Paul C. Broun..  ......  
----------------------------------------------------------------------------------------------------------------
Mr. Christopher P. Carney           .......  ...........  Vacancy............  ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke                .......  ...........  ...................  ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Al Green                        .......  ...........  ...................  ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter                   .......  ...........  ...................  ......          ..........
----------------------------------------------------------------------------------------------------------------
Mr. Bill Pascrell, Jr.              .......  ...........        Total........  15      11      ..........
----------------------------------------------------------------------------------------------------------------

Committee on Homeland Security
Date:    Thursday, March 6, 2008
Vote on:  An Amendment offered Mr. Lungren (#2), on p. 54, line 
18, after ``covered chemical facility'' insert ``assigned to a 
high-risk tier under section 2102(C)(3)''. Was NOT AGREED to by 
a record vote of 11 yeas and 16 nays (Roll Call Vote No. 13.) 
As follows:

Recorded Vote Number:      13
Total:  Yeas  11   Nays  16

----------------------------------------------------------------------------------------------------------------
                                    YEA      NAY      PRESENT                           YEA     NAY     PRESENT
----------------------------------------------------------------------------------------------------------------
Mr. Bennie G. Thompson            .......    ...........  Mr. Peter T. King..  
----------------------------------------------------------------------------------------------------------------
Ms. Loretta Sanchez               .......    ...........  Mr. Lamar Smith....  
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey              .......    ...........  Mr. Christopher      ......  ......  ..........
                                                                  Shays.
----------------------------------------------------------------------------------------------------------------
Mr. Norman D. Dicks               .......    ...........  Mr. Mark E. Souder.  
----------------------------------------------------------------------------------------------------------------
Ms. Jane Harman                   .......    ...........  Mr. Tom Davis......  
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio              .......    ...........  Mr. Daniel E.        
----------------------------------------------------------------------------------------------------------------
Mrs. Nita M. Lowey                .......  .......  ...........  Mr. Mike Rogers....  ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton         .......  .......  ...........  Mr. David G.         
----------------------------------------------------------------------------------------------------------------
Ms. Zoe Lofgren                   .......  .......  ...........  Mr. Michael T.       
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee            .......    ...........  Mr. Charles W. Dent  
----------------------------------------------------------------------------------------------------------------
Mrs. Donna M. Christensen         .......    ...........  Mr. Ginny Brown-     ......  ......  ..........
                                                                  Waite.
----------------------------------------------------------------------------------------------------------------
Mr. Bob Etheridge                 .......    ...........  Ms. Gus M.           
----------------------------------------------------------------------------------------------------------------
Mr. James R. Langevin             .......    ...........  Mr. David Davis....  
----------------------------------------------------------------------------------------------------------------
Mr. Henry Cuellar                 .......    ...........  Mr. Paul C. Broun..  
----------------------------------------------------------------------------------------------------------------
Mr. Christopher P. Carney         .......    ...........  Vacancy............  ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke              .......    ...........                       ......          ..........
----------------------------------------------------------------------------------------------------------------
Mr. Al Green                      .......    ...........                       ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter                 .......    ...........                       ......          ..........
----------------------------------------------------------------------------------------------------------------
Mr. Bill Pascrell, Jr.            .......    ...........        Total          11      16      ..........
----------------------------------------------------------------------------------------------------------------

Committee on Homeland Security
Date:    Thursday, March 6, 2008
Vote on:  An Amendment offered Mr. Souder (#6), Page 56, line 
8, strike ``and''.; page 56, line 12, strike the period and 
insert the following: ``; and''.; page 56, after line 12, 
insert a new subsection (D). Was NOT AGREED to by a record vote 
of 8 yeas and 13 nays (Roll Call Vote No. 14.) As follows:

Recorded Vote Number:      14
Total:  Yeas  8   Nays  13

----------------------------------------------------------------------------------------------------------------
                                    YEA      NAY      PRESENT                           YEA     NAY     PRESENT
----------------------------------------------------------------------------------------------------------------
Mr. Bennie G. Thompson            .......    ...........  Mr. Peter T. King    
----------------------------------------------------------------------------------------------------------------
Ms. Loretta Sanchez               .......    ...........  Mr. Lamar Smith      ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey              .......    ...........  Mr. Christopher      ......  ......  ..........
                                                                  Shays
----------------------------------------------------------------------------------------------------------------
Mr. Norman D. Dicks               .......  .......  ...........  Mr. Mark E. Souder   
----------------------------------------------------------------------------------------------------------------
Ms. Jane Harman                   .......  .......  ...........  Mr. Tom Davis        ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio              .......    ...........  Mr. Daniel E.        ......  ......  ..........
                                                                  Lungren
----------------------------------------------------------------------------------------------------------------
Mrs. Nita M. Lowey                .......  .......  ...........  Mr. Mike Rogers      ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton         .......  .......  ...........  Mr. David G.         
----------------------------------------------------------------------------------------------------------------
Ms. Zoe Lofgren                   .......  .......  ...........  Mr. Michael T.       
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee            .......    ...........  Mr. Charles W. Dent  
----------------------------------------------------------------------------------------------------------------
Mrs. Donna M. Christensen         .......    ...........  Mr. Ginny Brown-     ......  ......  ..........
                                                                  Waite
----------------------------------------------------------------------------------------------------------------
Mr. Bob Etheridge                 .......    DMs. Gus M.  ............  ......  ......
                                                     Bilirakis
----------------------------------------------------------------------------------------------------------------
Mr. James R. Langevin             .......  .......  ...........  Mr. David Davis      
----------------------------------------------------------------------------------------------------------------
Mr. Henry Cuellar                 .......    ...........  Mr. Paul C. Broun    
----------------------------------------------------------------------------------------------------------------
Mr. Christopher P. Carney         .......    ...........  Vacancy              ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke              .......    ...........                       ......          ..........
----------------------------------------------------------------------------------------------------------------
Mr. Al Green                      .......    ...........                       ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter                 .......    ...........                       ......          ..........
----------------------------------------------------------------------------------------------------------------
Mr. Bill Pascrell, Jr.            .......    ...........        Total          8       13      ..........
----------------------------------------------------------------------------------------------------------------

Committee on Homeland Security
Date:    Thursday, March 6, 2008
Vote on:  An Amendment offered Mr. Souder (#7), Page 57, after 
line 6, insert a new subsection ``(3) Exception.''. Was NOT 
AGREED to by a record vote of 8 yeas and 13 nays (Roll Call 
Vote No. 15.) As follows:

Recorded Vote Number:      15
Total:  Yeas  8   Nays  13

----------------------------------------------------------------------------------------------------------------
                                    YEA      NAY      PRESENT                           YEA     NAY     PRESENT
----------------------------------------------------------------------------------------------------------------
Mr. Bennie G. Thompson            .......    ...........  Mr. Peter T. King    
----------------------------------------------------------------------------------------------------------------
Ms. Loretta Sanchez               .......    ...........  Mr. Lamar Smith      ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey              .......    ...........  Mr. Christopher      ......  ......  ..........
                                                                  Shays
----------------------------------------------------------------------------------------------------------------
Mr. Norman D. Dicks               .......  .......  ...........  Mr. Mark E. Souder   
----------------------------------------------------------------------------------------------------------------
Ms. Jane Harman                   .......  .......  ...........  Mr. Tom Davis        ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio              .......    ...........  Mr. Daniel E.        ......  ......  ..........
                                                                  Lungren
----------------------------------------------------------------------------------------------------------------
Mrs. Nita M. Lowey                .......  .......  ...........  Mr. Mike Rogers      ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton         .......  .......  ...........  Mr. David G.         
----------------------------------------------------------------------------------------------------------------
Ms. Zoe Lofgren                   .......  .......  ...........  Mr. Michael T.       
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee            .......    ...........  Mr. Charles W. Dent  
----------------------------------------------------------------------------------------------------------------
Mrs. Donna M. Christensen         .......    ...........  Mr. Ginny Brown-     ......  ......  ..........
                                                                  Waite
----------------------------------------------------------------------------------------------------------------
Mr. Bob Etheridge                 .......    ...........  Ms. Gus M.           
----------------------------------------------------------------------------------------------------------------
Mr. James R. Langevin             .......  .......  ...........  Mr. David Davis      
----------------------------------------------------------------------------------------------------------------
Mr. Henry Cuellar                 .......    ...........  Mr. Paul C. Broun    
----------------------------------------------------------------------------------------------------------------
Mr. Christopher P. Carney         .......    ...........  Vacancy              ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke              .......    ...........                       ......          ..........
----------------------------------------------------------------------------------------------------------------
Mr. Al Green                      .......    ...........                       ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter                 .......    ...........                       ......          ..........
----------------------------------------------------------------------------------------------------------------
Mr. Bill Pascrell, Jr.            .......                       Total          8       13      ..........
----------------------------------------------------------------------------------------------------------------

Committee on Homeland Security
Date:    Thursday, March 6, 2008
Vote on:  Agreeing to the Committee Print, as amended. Was 
AGREED to by a record vote of 15 yeas and 7 nays (Roll Call 
Vote No. 16.) As follows:
Recorded Vote Number:      16
Total:  Yeas  15   Nays  7

----------------------------------------------------------------------------------------------------------------
                                    YEA     NAY     PRESENT                            YEA      NAY     PRESENT
----------------------------------------------------------------------------------------------------------------
Mr. Bennie G. Thompson                                                                       >
----------------------------------------------------------------------------------------------------------------
Ms. Loretta Sanchez               
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey              .  ......  ..........
                                   >                           Shays
----------------------------------------------------------------------------------------------------------------
Mr. Norman D. Dicks               ......  ......  ..........  Mr. Mark E. Souder    ........  
----------------------------------------------------------------------------------------------------------------
Ms. Jane Harman                   ......  ......  ..........  Mr. Tom Davis         ........  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio                                         Lungren
----------------------------------------------------------------------------------------------------------------
Mrs. Nita M. Lowey                ......  ......  ..........  Mr. Mike Rogers       ........  ......  ..........
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton         ......  ......  ..........  Mr. David G.          ........  
----------------------------------------------------------------------------------------------------------------
Ms. Zoe Lofgren                   ......  ......  ..........  Mr. Michael T.        ........  
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee            .  ......  ..........
                                   >
----------------------------------------------------------------------------------------------------------------
Mrs. Donna M. Christensen                                    Waite
----------------------------------------------------------------------------------------------------------------
Mr. Bob Etheridge                                                                            >
----------------------------------------------------------------------------------------------------------------
Mr. James R. Langevin             ......  ......  ..........  Mr. David Davis       ........  
----------------------------------------------------------------------------------------------------------------
Mr. Henry Cuellar                                                                            >
----------------------------------------------------------------------------------------------------------------
Mr. Christopher P. Carney         
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke              
----------------------------------------------------------------------------------------------------------------
Mr. Al Green                      
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter                 
----------------------------------------------------------------------------------------------------------------
Mr. Bill Pascrell, Jr.            
----------------------------------------------------------------------------------------------------------------

        subcommittee on transportation and infrastructure votes

Subcommittee on Transportation Security and Infrastructure 
Protection
Date:    Wednesday, January 23, 2008
Vote on:  An amendment offered by Ms. Brown-Waite (#2), to 
insert a new section after section 2115 entitled ``Sec. 2116. 
Terrorist Watchlist and Immigration Status Review Required for 
Certain Employees of High-Risk Chemical Facilities.'' Was NOT 
AGREED to by a record vote of 4 yeas and 5 nays (Roll Call Vote 
No. 3.) As follows:
Recorded Vote Number:      3
Total:  Yeas  4   Nays  5

----------------------------------------------------------------------------------------------------------------
                                    YEA      NAY      PRESENT                           YEA     NAY     PRESENT
----------------------------------------------------------------------------------------------------------------
Ms. Sheila Jackson-Lee            .......    ...........  Mr. Daniel E.        
----------------------------------------------------------------------------------------------------------------
Mr. Edward J. Markey              .......    ...........  Ms. Ginny Brown-     
----------------------------------------------------------------------------------------------------------------
Mr. Peter A. DeFazio              .......  .......  ...........  Mr. Gus Bilirakis    
----------------------------------------------------------------------------------------------------------------
Ms. Eleanor Holmes Norton         .......    ...........  Mr. Paul C. Broun    
----------------------------------------------------------------------------------------------------------------
Ms. Yvette D. Clarke              .......    ...........                       ......  ......  ..........
----------------------------------------------------------------------------------------------------------------
Mr. Ed Perlmutter                 .......    ...........        Total          4       5       ..........
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee has held oversight 
hearings and made findings that are reflected in this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

     In compliance with clause 3(c)(2) of rule XIII of the 
Rules of the House of Representatives, the Committee finds that 
H.R. 5577, the Chemical Facility Anti-Terrorism Act of 2008, 
would result in no new or increased budget authority, 
entitlement authority, or tax expenditures or revenues.

                  Congressional Budget Office Estimate

     The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

H.R. 5577--Chemical Facility Anti-Terrorism Act of 2008

    Summary: H.R. 5577 would authorize the appropriation of 
$900 million over the 2010-2012 period for the Department of 
Homeland Security (DHS) to regulate the security of chemical 
facilities across the United States (that is, facilities where 
certain types of chemicals are used, stored, manufactured, 
processed, or distributed). The bill would establish a chemical 
security office within DHS to carry out the provisions of this 
legislation, including conducting audits and inspections of the 
nation's chemical facilities. In addition, CBO estimates that 
DHS would need funding of $283 million for fiscal year 2013 to 
continue to carry out those activities.
    Assuming appropriation of the necessary amounts, we 
estimate that implementing H.R. 5577 would cost about $1.1 
billion over the 2010-2013 period. In addition, enacting the 
bill could affect direct spending and receipts, but we estimate 
that any such effects would not be significant.
    H.R. 5577 would impose several intergovernmental mandates, 
as defined in the Unfunded Mandates Reform Act (UMRA), 
including new requirements on publicly owned chemical 
facilities as well as preemptions of state and local laws. 
Based on information from DHS and representatives of publicly 
owned facilities, CBO estimates that additional costs for those 
facilities would not be significant. CBO further estimates that 
the cost of the other intergovernmental mandates (mostly 
preemptions) in the bill would be small, and therefore, that 
the total costs to state, local, and tribal governments would 
not exceed the annual threshold established in UMRA ($68 
million for intergovernmental mandates in 2008, adjusted 
annually for inflation).
    H.R. 5577 also would extend and impose new private-sector 
mandates, as defined in UMRA, on owners and operators of 
certain types of chemical facilities. Based on information from 
industry sources and DHS, CBO expects that the aggregate direct 
cost of complying with those mandates would likely exceed the 
annual threshold established in UMRA for private-sector 
mandates ($136 million in 2008, adjusted annually for 
inflation) in at least one of the first five years the mandates 
are in effect.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 5577 is shown in the following table. 
The costs of this legislation fall within budget function 750 
(administration of justice).

----------------------------------------------------------------------------------------------------------------
                                                                     By fiscal year, in millions of dollars--
                                                                 -----------------------------------------------
                                                                   2008    2009    2010    2011    2012    2013
----------------------------------------------------------------------------------------------------------------
                                CHANGES IN SPENDING SUBJECT TO APPROPRIATION \a\

Estimated Authorization Level \b\                                      0       0     325     300     275     283
Estimated Outlays...............................................       0       0     260     305     280     282
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
\a\ In addition to the amounts shown above, enacting H.R. 5577 could affect revenues and direct spending, but
  CBO estimates that any such effects would not be significant in any year.
\b\ The authorization levels for 2010 through 2012 are specified by H.R. 5577; CBO estimated the 2013 level.

    Basis of estimate: CBO estimates that implementing H.R. 
5577 would cost about $1.1 billion over the 2010-2013 period, 
assuming appropriation of the necessary funds. Enacting the 
bill could affect direct spending and revenues, but we estimate 
that any effects would be insignificant.

Spending Subject to Appropriation

   FOR THIS ESTIMATE, CBO ASSUMES THAT THE NECESSARY AMOUNTS WILL BE 
  APPROPRIATED FOR EACH FISCAL YEAR AND THAT SPENDING WILL FOLLOW THE 
     HISTORICAL SPENDING PATTERNS FOR THOSE OR SIMILAR ACTIVITIES.

    H.R. 5577 would authorize the appropriation of $900 million 
over the 2010-2012 period for DHS to regulate the security of 
chemical facilities in the United States. In addition, CBO 
estimates that implementing the bill would require funding of 
$283 million in 2013 for DHS to continue to carry out the 
bill's activities. We estimated the 2013 level by adjusting the 
2012 level for anticipated inflation.

Direct Spending and Revenues

    Enacting H.R. 5577 could affect direct spending and 
receipts because the bill would establish new civil and 
criminal penalties against owners and operators of chemical 
facilities and officers or employees of federal, state, or 
local government agencies who fail to comply with the bill's 
requirements. Civil fines are recorded as revenues and 
deposited in the Treasury. Criminal fines are recorded as 
revenues, then deposited in the Crime Victims Fund, and later 
spent. CBO expects that any additional revenues and direct 
spending would not be significant because of the small number 
of cases affected.

       Estimated impact on state, local, and tribal governments:

    H.R. 5577 would impose intergovernmental mandates, as 
defined in UMRA, on owners and operators of chemical 
facilities, including public entities. The bill also would 
preempt state, local, and tribal authority. Because some of the 
requirements on chemical facilities would depend on future 
actions of DHS, CBO cannot determine their exact costs. 
However, based on information from DHS and representatives of 
public entities, CBO estimates that additional costs for public 
facilities would not be significant. CBO further estimates that 
the cost of the other intergovernmental mandates in the bill 
would be small. Therefore, the total costs to state, local, and 
tribal governments would not exceed the annual threshold 
established in UMRA ($68 million for intergovernmental mandates 
in 2008, adjusted annually for inflation).

Requirement for Vulnerability Assessments and Security Plans

    H.R. 5577 would require owners and operators of affected 
facilities to conduct an assessment of the vulnerability of 
their facilities, identify the hazards that may result from a 
substance's release, and develop and implement a security plan 
to prevent or respond to those releases. H.R. 5577 would 
further require owners and operators to maintain records at the 
facility, provide access for DHS officials, require background 
checks on employees with access to restricted areas, and 
provide training to employees. Those facilities would be 
prohibited from firing or otherwise discriminating against an 
employee who provides information to DHS regarding 
vulnerabilities at a chemical facility.
    Similar activities are required under current law, but 
those requirements expire in 2009; however, some public 
entities, such as drinking water and wastewater treatment 
facilities, are exempt from those regulations. This bill would 
require such facilities to comply with the requirements. The 
bill also would extend existing mandates on certain public 
entities that are not exempt from the current regulations and 
impose new intergovernmental mandates on entities that are 
considered to be high risk.
    According to government and industry representatives, many 
of the public facilities potentially affected by the bill's 
provisions are currently engaged in activities similar to those 
that would be required under H.R. 5577. Such facilities are 
acting either in response to the terrorist attacks of September 
11, 2001, as a condition of membership with chemical industry 
associations, or to comply with the Public Health Security and 
Bioterrorism Preparedness and Response Act of 2002, the 
Maritime Transportation Security Act, or other federal 
regulations. Based on information from DHS, CBO expects DHS to 
assign most public water facilities to the lowest tier of risk 
and to consider activities that the facilities are currently 
doing to be sufficient. Assuming public facilities would not be 
required to undertake significant new activities, CBO expects 
that those mandates would impose few additional costs on those 
facilities.

Other Intergovernmental Mandates

    The bill also contains two preemptions of state and local 
authority. It would exempt certain security plans and documents 
from state and local laws that provide public access to 
information and preempt any state or local regulation that 
would conflict with the security activities authorized by this 
bill. CBO estimates that costs, if any, of those preemptions 
would be small.
    Estimated impact on the private sector: H.R. 5577 would 
extend and impose new private-sector mandates, as defined in 
UMRA, on owners and operators of certain types of chemical 
facilities. Based on information from industry sources and DHS, 
CBO expects that the aggregate direct cost of complying with 
those mandates would likely exceed the annual threshold 
established in UMRA for private-sector mandates ($136 million 
in 2008, adjusted annually for inflation) in at least one of 
the first five years the mandates are in effect.

Extension of Mandates on Chemical Facilities

    The bill would extend and modify certain regulations known 
as the Chemical Facility Anti-Terrorism Standards (CFATS) that 
were issued under Public Law 109-295 and are set to expire in 
October 2009. H.R. 5577 would extend the requirement that DHS 
maintain a list of chemical facilities based on criteria in the 
bill, assign each such facility to one of at least four risk-
based tiers, and develop security standards and procedures for 
facilities on the list.
    Based on regulations developed by DHS, owners and operators 
of those chemical facilities would be required to conduct an 
assessment of the vulnerability of their facility to a 
terrorist incident, and prepare and implement a security plan 
that addresses the results of the vulnerability assessment. The 
bill also would require the owners and operators of such 
facilities to maintain a current copy of the assessment and 
plan at their facility and to allow DHS access to their 
property for security inspections and verifications. In 
addition, owners and operators would be required to 
periodically submit a review of the adequacy of the 
vulnerability assessment or facility security plan that 
includes a description of any changes made to the assessment or 
plan. The bill also would extend certain protections for 
employees in the event that they submit a report to DHS 
regarding problems, deficiencies, or vulnerabilities at a 
chemical facility.
    According to industry sources and DHS, most facilities are 
currently engaged in the assessments and planning that would be 
required under this bill as a part of complying with the 
current regulations. The cost to chemical facilities of 
extending those requirements would depend, in part, on the 
number of facilities that will have completed their 
vulnerability assessments and security plans before the sunset 
of the CFATS regulations. Based on information from DHS and 
industry sources on the expected schedule of requirements for 
facilities, CBO expects that the incremental cost to the 
industry to comply with the extension of the security standards 
and procedures outlined in the bill would be substantial and 
would likely exceed the annual threshold established in UMRA in 
at least one of the first five years those requirements are in 
effect.

New Mandates on Chemical Facilities

    H.R. 5577 also would impose new mandates, as defined in 
UMRA, on owners and operators of chemical facilities covered 
under the bill. Those new mandates would not impose substantial 
costs on those owners and operators.
    Mandates on High-Risk Facilities. The bill would require 
owners and operators of high-risk chemical facilities to 
conduct a specific assessment of methods to reduce the impacts 
of a terrorist attack on the facility. If the Secretary 
determines that specific methods are necessary for a facility 
to reduce those impacts, the owner or operator of the facility 
would be required to implement such methods. The bill also 
would require DHS to make funds available to help defray some 
of the cost of implementing those methods. Because the 
facilities that would be affected and the types of methods to 
be required depend on future regulatory actions, CBO cannot 
estimate the cost of this mandate.
    The bill also would require owners and operators of high-
risk chemical facilities to:
     Allow DHS to conduct certain risk management 
exercises (called red team exercises) at their facilities;
     Submit to DHS an addendum to the facility's 
security vulnerability assessment or site security plan to 
reflect any additional requirements of this act if they have 
already submitted an assessment and plan under current 
regulations; and
     Conduct security background checks of individuals 
who have access to restricted areas or critical assets.
    Based on information from DHS and the industry, CBO expects 
that the cost of complying with those mandates would not be 
substantial compared with the annual threshold.
    Training Requirement. Under the bill, the owner or operator 
of a chemical facility required to submit a site security plan 
would be required to annually provide each employee of the 
facility with a minimum of eight hours of training. The 
training would include such topics as the identification and 
discussion of substances that pose a certain level of risk to 
the workforce, emergency response providers, and the community. 
According to DHS and industry representatives, all covered 
chemical facilities currently provide similar training for 
their employees so that the incremental cost to those 
facilities should be minimal compared with the annual 
threshold.
    Estimate prepared by: Federal Costs: Mark Grabowicz; 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.

         Statement of General Performance Goals and Objectives

     Pursuant to clause 3(c)(4) of rule XIII of the Rules of 
the House of Representatives, H.R. 5577, contains the following 
general performance goals, and objectives, including outcome 
related goals and objectives authorized.
    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, H.R. 5577 contains the following 
general performance goals, and objectives, including outcome 
related goals and objectives authorized.
    The purpose of this legislation is to amend the Homeland 
Security Act of 2002 to extend, modify, and renew the authority 
of the Secretary of Homeland Security to enhance security and 
protect against acts of terrorism against chemical facilities, 
and for other purposes, including:
        Designation of certain chemical substances as 
        substances of concern and establishing a threshold 
        quantity for each substance of concern;
        Assignment by the Secretary of each covered chemical 
        facility to one of four or more risk-based tiers 
        established by the Secretary and periodic review by the 
        Secretary of the criteria under which covered chemical 
        facilities are assigned to risk-based tiers or by which 
        chemical facilities are designated as covered 
        facilities;
        Establishing security requirements for covered chemical 
        facilities including security vulnerability assessments 
        and site security plans;
        Exercises conducted by the Secretary at chemical 
        facilities that have been assigned to a high-risk tier 
        during the six-year period that begins on the effective 
        date of the regulations promulgated under this 
        legislation;
        Development, documentation, and updating of minimum 
        standard operating procedures and requirements by the 
        Secretary for certain third-party entities;
        Submission of an annual report to relevant 
        Congressional Committees on the award of third-party 
        entity contracts to small business concerns during the 
        preceding fiscal year;
        Requiring all covered chemical facilities assigned to a 
        risk-based tier to conduct an assessment of the 
        feasibility of methods to reduce the consequences of a 
        terrorist attack, and allowing the Secretary to require 
        implementation, of such methods, on a case-by-case 
        basis, for high-risk facilities;
        Making funds available to help defray the cost of 
        implementing methods to reduce the consequences of a 
        terrorist attack to covered chemical facilities that 
        are required by the Secretary to implement such methods 
        or that voluntarily choose to implement such methods;
        Requiring adequate processes for redress for a covered 
        individual subjected to an adverse employment decision, 
        including removal or suspension, due to compliance with 
        the provisions and regulations promulgated under 
        section 2114 of this legislation;
        Issuing a regulation that prohibits a covered chemical 
        facility from knowingly misrepresenting to an employee 
        or labor arbiter the scope, application, or meaning of 
        any rules, regulations, directives, or guidance issued 
        by the Secretary related to security background check 
        requirements not later than one year after the date of 
        enactment of this legislation;
        Submission of an annual report to Congress by the 
        Secretary on progress in achieving compliance with 
        title XXI of the Homeland Security Act of 2002, as 
        added by section 4 of this legislation, not later than 
        one year after the date of enactment thereof; and
        Submission of a report to Congress by the Inspector 
        General of the Department of Homeland Security that 
        reviews the effectiveness of the implementation of 
        title XXI of the Homeland Security Act of 2002, not 
        later than October 1, 2010; and other provisions.

   Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
                                Benefits

     In compliance with rule XXI of the Rules of the House of 
Representatives, this bill, as reported, contains no 
Congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of the rule 
XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for this legislation is provided in 
Article I, section 8, clause 1, which grants Congress the power 
to provide for the common Defense of the United States.

                  Applicability to Legislative Branch

     The Committee finds that the legislation does not relate 
to the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation

Section 1.  Short Title.

    This section cites the short title of the bill as the 
``Chemical Facility Anti-Terrorism Act of 2008.''

Section 2.  Findings and Purpose.

    This section sets forth Congressional findings and states 
the purpose of the bill: to give permanent status to the 
Chemical Facility Anti-Terrorism Standards (CFATS) to protect 
the Nation's chemical facilities from the significant risk of 
being terrorist targets. This section finds that the Secretary 
of Homeland Security currently has authority to regulate 
chemical facilities under the CFATS regulations issued pursuant 
to section 550 of the Department of Homeland Security 
Appropriations Act of 2007 (P.L. 109-295). Further, this 
section finds that the CFATS regulations are largely consistent 
with Congressional intent regarding chemical facility security 
but will sunset in October 2009. Finally, this section declares 
that the purpose of this measure is to codify the CFATS 
regulations and provide further Congressional guidance for 
implementation in the future.

Section 3.  Sense of Congress.

    This section expresses the sense of Congress that the 
Secretary of Homeland Security should use, as appropriate, the 
rules, regulations, and tools developed for the CFATS 
regulations established pursuant to section 550 of P.L. 109-295 
to develop and administer all aspects of the new regulations. 
Among the tools that should be utilized, as appropriate, are 
Appendix A and the ``Top Screen'' tool. This section also notes 
that the Secretary should take a holistic approach to secure 
hazardous chemicals and utilize existing authority to secure 
the supply chain of chemicals.

Section 4.  Extension, Modification, and Recodification of the 
        Authority of the Secretary of Homeland Security to Regulate 
        Security Practices at Chemical Facilities.

    This section amends the Homeland Security Act of 2002 by 
adding a new ``Title XXI-Regulation of Security Practices at 
Chemical Facilities.''

Section 2101.  Definitions.

    This section defines terms such as ``chemical facility,'' 
``chemical facility performance standard,'' ``chemical facility 
terrorist incident,'' ``employee representative,'' ``covered 
individual,'' ``covered chemical facility,'' ``environment,'' 
``substance of concern,'' and ``method to reduce the 
consequences of a terrorist attack,'' among others.

Section 2102.  Risk-Based Designation and Ranking of Chemical 
        Facilities.

    This section requires the Secretary of Homeland Security to 
designate a chemical substance as a ``substance of concern'' 
and determine the regulated ``threshold'' quantities of these 
substances. In designating a chemical, the Secretary shall 
consider the potential for death, injury, and serious adverse 
effects to human health, the environment, critical 
infrastructure, National security, the National economy, and 
public welfare from a terrorist-related release. The Secretary 
may use the Appendix A list utilized under the CFATS 
regulations established pursuant P.L. 109-295 to fulfill this 
requirement.
    This section also requires the Secretary to maintain a list 
of ``covered chemical facilities'' that present a certain level 
of security risk, based on the potential threat that the 
facility will be a target of terrorism; the potential extent of 
death, injury, or serious adverse effects to human health, the 
environment, critical infrastructure, National security, the 
National economy, and public welfare from a terrorist incident; 
and the proximity of the facility to population centers. The 
Secretary may require additional information to determine 
whether a facility qualifies as a covered chemical facility and 
may use the ``Top Screen'' process under the current CFATS 
regulations to fulfill this requirement.
    Under this section, the Secretary is required to assign 
each covered chemical facility to one of at least four risk-
based tiers with at least one tier being a high-risk tier. This 
section requires the Secretary to review the list periodically 
and update it as appropriate. The Secretary is required to 
notify the facilities of their designation or any modification 
of their designation within 60 days of the determination.

Section 2103.  Security Vulnerability Assessments and Site Security 
        Plans.

    This section requires the Secretary of Homeland Security to 
establish standards, protocols, and procedures that mandate 
security vulnerability assessments and site security plans for 
covered chemical facilities. The requirements for vulnerability 
assessments and site security plans must be risk-based, 
performance-based, and take into consideration cost and 
technical feasibility; quantities of a substance of concern 
stored, used, or handled; and the potential for death, injury, 
or serious adverse effects to human health, the environment, 
critical infrastructure, National security, the National 
economy, or public welfare from a terrorist-related release. 
Upon request of a covered chemical facility, the Secretary is 
required to provide technical assistance and guidance to a 
covered chemical facility that is preparing a security 
vulnerability assessment or site security plan.
    This section requires all security vulnerability 
assessments and site security plans to detail the role of 
employees in deterring or responding to a chemical facility 
terrorist incident, as appropriate. Under this section, owners 
or operators of covered chemical facilities must provide a 
minimum of eight hours of training for employees, including a 
discussion of substances of concern; the prevention, 
preparedness, and response plan of the facility; identification 
of opportunities to use methods to reduce the consequences of a 
terrorist attack; and practice emergency response procedures.
    This provision also requires the Secretary to provide a 
covered chemical facility with information to complete the 
vulnerability assessment including: potential consequences, 
criticality, proximity to other critical infrastructure, and 
best practices. It requires the facility to include appropriate 
employees, supervisors, and union representatives in the 
development of the security vulnerability assessment and site 
security plan.
    This section requires the Secretary to establish risk-based 
chemical security performance requirements with separate and 
increasingly stringent requirements for each tier. Under this 
provision, the Secretary is required to permit facilities to 
select a combination of security measures in order to meet the 
requirements, and allow two or more co-located facilities to 
develop and implement coordinated security vulnerability 
assessments and site security plans.
    Moreover, under this section, the Secretary may accept, in 
whole or in part, an alternate security program that a facility 
submits to the Secretary as fulfilling some or all of the 
regulatory requirements to complete a security vulnerability 
assessment and site security plan. The types of alternate 
security programs that are envisioned include vulnerability 
assessments, security plans or other documents developed to 
comply with other Federal laws such as the Safe Drinking Water 
Act(42 U.S.C. 300i-2), the Federal Water Pollution Control Act 
(33 U.S.C. 1251 et seq.), the Maritime Transportation Safety 
Act (chapter 701 of title 46, United States Code), State and 
local laws, and voluntary industry practices such as the 
American Chemistry Council's Responsible Care Code. The 
Committee encourages the Department of Homeland Security to 
allow process safety reviews to be submitted for review for the 
assessment required under section 2110 of this legislation. The 
Committee intends for the Secretary to review and approve or 
disapprove all submissions of alternate security program 
information on an individual, facility-by-facility basis.
    This section requires facilities already subject to the 
Safe Drinking Water Act, the Federal Water Pollution Control 
Act, and the Maritime Transportation Safety Act to provide the 
documents submitted to comply with those existing authorities 
to the Secretary for review. Under this process, the Secretary 
determines if the actions under those existing authorities 
fulfill the requirements of this legislation, and whether 
further action by the facility is needed. The Secretary shall 
consult with appropriate authorities, to ensure the 
requirements of this legislation and existing authorities are 
non-duplicative and non-contradictory. The Committee believes 
that the Secretary, by undertaking this analysis, will ensure 
that actions taken by covered chemical facilities to comply 
with other Federal requirements are leveraged.
    This section requires the Secretary to coordinate with the 
Attorney General with regard to facilities that import, 
manufacture, distribute, or store explosive materials and are 
required to be licensed under 18 U.S.C. 40.
    With respect to a high-risk tier facility, this section 
requires such a facility to conduct a security vulnerability 
assessment and to prepare and implement a site security plan 
that addresses the results of that facility's security 
vulnerability assessment. A security vulnerability assessment 
includes consideration of, among other things, the 
identification of any hazard that could result from a terrorist 
incident; any vulnerabilities to: physical security, computers, 
communication networks or systems, or automated systems, 
alarms, cameras, or protection systems, utilities or other 
infrastructure, and the structural integrity of storage, 
handling, or other equipment; and consideration of threat 
information.
    Further, this provision requires a high-risk tier facility 
to develop and implement a site security plan that includes: 
security measures that address the vulnerabilities identified 
in the assessment and meet the risk-based security performance 
standards; a plan and schedule for drills and exercises that 
include, as appropriate, first responders, local law 
enforcement, supervisory and non-supervisory employees, and 
union representatives; equipment, plans, and procedures for 
responding to a terrorist incident including site evacuation, 
release mitigation, and containment plans; coordination efforts 
with State, local, and tribal law enforcement, first 
responders, and Federal officials; information on the security 
officer who will serve as the point of contact for incident 
management at the facility; a description of enhanced security 
measures to be used at times of heightened terrorist threat; an 
analysis of methods to reduce the consequences of a terrorist 
attack; and as well as any other provisions required by the 
Secretary.
    This section requires the Secretary to conduct Red-Team 
exercises at each high-risk tier facility at least once in a 
six year period.
    This section also requires the Secretary to provide timely 
threat-related information to the maximum extent practicable to 
high-risk tier chemical facilities. All covered chemical 
facilities are required to provide timely reports of any 
intentional, attempted, or accidental penetration of the 
facilities physical or cybersecurity.
    The Committee intends that a covered chemical facility use, 
as the basis for an assessment under this section, the 
information on a worst-case chemical facility terrorist 
incident provided by the Secretary to that facility. The 
Committee also intends that guidance provided by the Secretary 
under this section shall be in convenient and user-friendly 
format, including methodologies and computer software that 
assist covered chemical facilities in evaluating options to 
meet security performance standards. The Committee does not 
intend for any provision of this section to relieve any covered 
chemical facility of the responsibility to comply with each 
requirement of this title.

Section 2104.  Record Keeping; Site Inspections.

    This section requires that a current copy of the security 
vulnerability assessment and site security plan be maintained 
at each facility. Moreover, under this section, the Secretary 
of Homeland Security shall conduct security verifications and 
inspections and the Secretary or his designee shall have a 
right of entry to each facility at reasonable times to conduct 
verifications or inspections or both. In addition, the 
Secretary may, by regulation, authorize third-party entities 
that are trained and certified by the Secretary to conduct 
verifications and inspections to evaluate compliance with 
regulations, security standards, and requirements under this 
title.
    This provision also requires the Secretary to consult with 
owners, operators, supervisory and non-supervisory employees, 
as well as union representatives, as appropriate, during the 
verification and inspections process. Where appropriate, the 
Secretary shall provide an opportunity to such individuals to 
be present during an inspection or verification.
    It also requires that employee representatives receive 
copies of the vulnerability assessment and site security plan, 
and requires that such information be handled in accordance 
with the protection of information section.
    To carry out this title, the Secretary may require specific 
documentation to be furnished in order to conduct a 
verification or inspection. Failures to maintain, produce, or 
allow access to records or to the property shall result in an 
order requiring compliance.

Section 2105.  Enforcement.

    This section requires the Secretary of Homeland Security to 
promulgate regulations that set specific deadlines for 
submitting security vulnerability assessments and site security 
plans, which may differ according to risk-based tier. Under 
this provision, such regulations shall set forth the specific 
deadlines for notifying the Secretary if there is any change in 
the use of more than the threshold amount of a substance of 
concern or any significant change in a security vulnerability 
assessment or site security plan previously submitted. In 
addition, the regulations shall require facilities to 
periodically review the adequacy of the facility's security 
vulnerability assessment or site security plan on a timeline 
set by the Secretary.
    This section also requires the Secretary to review and 
approve security vulnerability assessments or site security 
plans no later than 180 days from the date of receipt. Under 
this provision, the Secretary may reject a security 
vulnerability assessment or site security plan if it does not 
comply with the requirements under section 2103 of this 
legislation or if the site security plan does not sufficiently 
address any vulnerabilities identified in the vulnerability 
assessment or through associated oversight actions, such as Red 
Team exercise, that are set forth in section 2103 or section 
2104 of this legislation. Further, in the event of the 
Secretary's disapproval, this measure requires such disapproval 
to be communicated in writing to the facility and to clearly 
explain the deficiencies in the submission; provide guidance in 
addressing the deficiencies; and require the facility to revise 
the submission to address the deficiencies by a specified date. 
If the revised vulnerability assessment, site security plan, or 
implementation plan is not submitted within the specified 
period, the Secretary shall issue an order for compliance 
requiring the deficiencies to be corrected by a specified date.
    In the case of a high-risk tier facility, the Secretary 
shall, at the request of the facility, consult with that 
facility to identify appropriate steps to address the 
deficiencies. If an order for compliance is issued by the 
Secretary to a high-risk tier facility and that facility still 
does not comply, the Secretary may issue an order for that 
facility to cease operations until the facility is determined 
to be in compliance. In the case of a drinking water or 
wastewater facility that is in non-compliance, the Secretary 
may only issue an order to cease operations if the continued 
operation of the facility represents a clear and present danger 
to homeland security.
    Finally, this section requires the Secretary to establish a 
reporting process through which any person can notify the 
Department about problems, deficiencies, or vulnerabilities at 
a chemical facility. The reporting process shall include 
provisions to keep the identity of any such person 
confidential, ensure acknowledgement of receipt and review of 
such information, and ensure that appropriate steps are 
undertaken to address any identified problem, deficiency, or 
vulnerability. Under this provision, no employee may be 
discharged or otherwise discriminated against because the 
employee: reports such problems to his employer, the Secretary 
or the facility operator; refuses to engage in illegal 
practices; testifies on such problems before Congress or in a 
Federal or State proceeding; commenced a Federal or State 
proceeding or caused a Federal or State proceeding to be 
commenced; or assisted or participated in such proceeding. Any 
employee covered under this section who alleges discrimination 
in violation of this section may bring an action under 49 
U.S.C. 20109. The Committee strongly believes that those 
``whistleblowers'' who bring security concerns to the attention 
of the Secretary or the facility owner or operator are this 
Nation's security ``eyes and ears'' at these facilities. 
Facility owners and operators should listen to and appreciate 
whistleblowers for their service, not retaliate against or 
punish them for coming forward.

Section 2106.  Penalties.

    This section allows the Secretary of Homeland Security to 
bring an action in a U.S. district court against any facility 
that violates or fails to comply with any order or site 
security plan under this legislation. The relief available to 
the Secretary includes an injunctive relief order and civil 
penalties of not more than $50,000 for each day a violation or 
failure to comply continues.
    Any officer or employee of a Federal, State, local or 
tribal agency that knowingly discloses any record containing 
information about a facility's vulnerability assessment or site 
security plan or any other information protected under section 
2108 (f) shall be imprisoned for not more than a year, fined 
under chapter 227 of title 18, United States Code, or receive 
both penalties.

Section 2107.  Federal Preemption.

    This section affirms the right of any State or local 
authority to adopt or enforce any statute, regulation, 
requirement, or standard of performance for chemical facility 
security that is more stringent than this legislation. However, 
if any such statute, regulation, requirement, or standard of 
performance directly conflicts with Federal regulations 
established under this measure, the Federal statute preempts 
the State or local measure. This provision also clarifies that 
nothing in this measure shall preclude a State or local 
authority from adopting or enforcing environmental protection, 
health, or safety laws or regulations.
    The Committee intends for this section to address instances 
of ``conflict preemption,'' and does not invoke the doctrine of 
``field preemption.'' As the Department of Homeland Security 
has noted in the Chemical Facility Anti-Terrorism Standards 
interim rule (and confirmed in the final rule), ``conflict 
preemption'' is only meant to indicate that the provision ``is 
not to be conflicted by, interfered with, hindered by, or 
frustrated by State measures, under long-standing legal 
principles'' (DHS 2006-0073, RIN 1601-AA41, 6 C.F.R. Part 27).
    The Committee notes that under the current CFATS 
regulations, no current State law or regulation regarding 
chemical facility security has been preempted, and the 
Committee intends that the CFATS regulations required under 
this legislation follow that precedent.

Section 2108.  Protection of Information.

    This section provides for a general prohibition against the 
disclosure of ``protected information'' under the Freedom of 
Information Act (5 U.S.C. 552) or other State or local sunshine 
laws. This provision requires the Secretary of Homeland 
Security to prescribe regulations or orders to prohibit 
unauthorized disclosure of protected information. Such 
regulations should allow information sharing, on a confidential 
basis, with Federal, State, local, and tribal law enforcement 
as well as with first responders and appropriate chemical 
facility personnel, as necessary; allow confidential use in 
administrative or judicial proceedings; limit access to 
protected information to persons designated by the Secretary; 
and ensure, to the maximum extent practical, that protected 
information is maintained in a secure location and access to 
such information be limited.
    This section does not affect any obligation the facility 
may have under other Federal, State, or local laws to submit 
such information. This section also does not prohibit the 
sharing of information with Congress and does not affect any 
authority or obligation of any Federal agency to disclose a 
record or information that the Federal agency obtains from the 
facility through enforcement of a different law or regulation.
    For the purposes of this title, protected information 
includes: criteria and data used by the Secretary to assign 
chemical facilities to risk-based tiers; the submitted security 
vulnerability assessments and site security plans; information 
concerning the security performance requirements; any other 
information generated or collected by a Federal, State, local 
or tribal government agency, by a chemical facility that 
describes any vulnerability of a facility to an act of 
terrorism or describes the assignment of a facility to a risk-
based tier or describes a security measure of the facility; and 
any other information that the disclosure of which the 
Secretary determines would be detrimental to the security of a 
chemical facility.

Section 2109.  Certification of Third-Party Entities.

    This section permits the Secretary of Homeland Security to 
certify third-party entities to carry out certain sections of 
this title including the review of information submitted to the 
Secretary regarding a facility's use and storage of substances 
of concern, security vulnerability assessments, site security 
plans, alternate security programs, site inspections, and 
provision of technical assistance. The Secretary is required to 
establish standards to ensure that such third-party entities 
have knowledge of physical infrastructure protection, 
cybersecurity, chemical facility security, hazard analysis, 
engineering, and other related expertise that the Secretary 
deems as necessary.
    This provision also requires the Secretary, before 
selecting a third-party entity to carry out certain sections of 
this title, to conduct a 90-day independent review to determine 
whether the entity is in compliance with minimum standard 
operating procedures, including safety and hazard standards as 
set forth by the Secretary, and to determine whether the entity 
has any potential conflicts or business engagements that could 
compromise the entity's ability to execute its responsibilities 
as a third-party entity. Under this section, if the Secretary 
is satisfied, at the conclusion of the independent review, with 
the entity's ability to perform, then the Secretary shall issue 
a certificate of conformance with operating procedures and 
requirements and the demonstrated ability to perform 
validations. Such qualified third-party entities will receive 
limited litigation and risk management protection under the 
SAFETY Act (6 U.S.C. 441). The Secretary is required to 
regularly monitor and inspect the operations of third-party 
entities to ensure that minimum standard operating procedures 
are met.
    In addition, every third-party entity that is awarded a 
contract must plan and implement the award of subcontracts to 
small business concerns, including economically disadvantaged 
small businesses, those owned by service-disabled veterans, 
HUBZone small businesses, Small Business Act 8(a) businesses, 
and historically black colleges and universities, Hispanic-
serving institutions, tribal colleges and universities, and 
other minority-serving institutions. The provision also 
requires the Secretary, to the maximum extent practicable, to 
seek to facilitate the award of third-party entity contracts to 
groups of small businesses or ``alliances.''
    This section also requires an annual report to Congress 
outlining the extent to which small business concerns 
participate in third-party entity contracts used to carry out 
the requirements of this legislation.
    By including these provisions, the Committee intends to 
ensure that under-represented businesses are given a fair 
chance to contribute to the security of the chemical sector.

Section 2110.  Methods to Reduce the Consequences of a Terrorist 
        Attack.

    This section requires that the site security plan of any 
covered chemical facility include an assessment of methods to 
reduce the consequences of a terrorist attack on the facility. 
Such methods may include substitution of chemicals, changes in 
processes, storage or use of less of a chemical of concern on 
site, changes to safer practices, reducing consequences of 
equipment failure or human error, improvements in inventory 
control, as well as reduction or elimination of storage, 
transportation, handling, disposal, or discharge of substances 
of concern. As a part of this assessment, the facility shall 
include information on the degree to which each method, if 
applied, will reduce the consequences of a terrorist attack; 
the technical viability associated with each method to reduce 
the consequences of a terrorist attack; and the costs and 
savings associated with each method to reduce the consequences 
of a terrorist attack.
    Under this provision, high-risk tier chemical facilities 
are required to implement a method or methods to reduce the 
consequences of a terrorist attack if the Secretary of Homeland 
Security determines that such a method or methods: would 
significantly reduce the risk of death, injury, or serious 
adverse effects to human health from a terrorist release so 
long as the action does not shift risk and result in an 
increase in interim storage of a substance of concern outside 
the facility or directly result in another facility moving into 
a high-risk tier; can feasibly be incorporated into the 
facility's operations; and would not significantly and 
demonstrably impair the ability of the facility to continue to 
operate in the United States. Where a high-risk tier facility 
believes it is unable to act in accordance with the Secretary's 
determination that it must adopt a method or methods to reduce 
the consequences of a terrorist attack, such facility is 
required to provide a written explanation to the Secretary 
within 60 days of receipt of the Secretary's determination. The 
Secretary, in turn, shall consult with the facility and issue a 
final determination as to whether implementation is required. 
If implementation is required, the facility shall begin 
implementing the changes within 180 days of the Secretary's 
determination.
    This section also requires the Secretary to provide 
information on each method to reduce the consequences of a 
terrorist attack to covered chemical facilities and provides 
that such information may be gathered by the Secretary from 
information provided by facilities, academic institutions, 
National Laboratories, private sector experts, other safety and 
security experts, and any other method the Secretary deems 
appropriate. Information that is made available to the public 
shall not identify any specific facility and must comply with 
the protection of information requirements of section 2108 of 
this legislation.
    This section authorizes the Secretary to make funds 
available to help defray the cost to facilities of implementing 
methods to reduce consequences of a terrorist attack either on 
a voluntary basis or pursuant to a determination by the 
Secretary. It also requires the Secretary to give special 
consideration to those facilities required by the Secretary to 
implement methods to reduce the consequences of a terrorist 
attack as well as publicly-owned water and wastewater 
facilities. Under this provision, the Secretary is prohibited 
from requiring a publicly-owned facility to implement methods 
to reduce the consequences of a terrorist attack unless that 
facility receives funding to help defray the cost of 
implementation.
    The Committee recognizes that the surest way to protect a 
facility is for the facility to not become a target in the 
first place. As such, implementing methods to reduce the 
consequences of a terrorist attack should be a top priority in 
securing our Nation's chemical sector. However, the Committee 
recognizes that chemical facilities should have autonomy in 
their operations and expects the Secretary to carefully 
consider any decision to require implementation of such 
methods.
    The Committee intends that information on alternative 
approaches other than protected or proprietary information be 
available under this section to chemical facility owners and 
operators; academic institutions; officials from Federal, 
State, local, and tribal governments; training providers and 
partners in section 8 of this measure; the National Chemical 
Security Center of Excellence in section 2115 of this measure; 
National Laboratories; facility employees; employee 
representatives and organizations; owners and developers of 
alternative technologies; and other public and private sector 
experts for the purpose of assessing or implementing 
alternative approaches.
    The Committee observes that, in implementing the current 
Chemical Facility Anti-Terrorism Standards (CFATS) Interim 
Final Rule, the Department has been appropriately sensitive to 
the concerns of the agricultural sector regarding chemical 
security. The agricultural sector has been understood to 
include farms and farmers, agricultural retailers, rural 
propane distributors and fertilizer manufacturers, and the 
Committee supports this understanding. Furthermore, the 
Committee supports the Department's decision to grant an 
extension for the ``Top-Screen'' information for the 
agricultural sector.
    Similarly, the Committee intends that the Department give 
particular attention to the agricultural sector and take into 
account both the proximity of such facilities to major 
population centers and their vital role in our Nation's economy 
as they administer chemical security regulations. The Committee 
believes that, in general terms, such facilities represent a 
relatively low security risk, as they use and store chemicals 
in agricultural settings, such as farms, feed stores, and 
similar facilities. It is not the intention of the Committee to 
promote or discourage the use of any particular chemical in 
agriculture through the provisions in this section.
    The Committee does not intend for the Department to create 
a blanket mandate for the use of a government-selected 
``safest'' technology or process, but to assess the security 
needs for each facility on a case-by-case basis. Additionally, 
the Committee expects the Department to carefully consider 
potential adverse affects of requiring implementation of 
specific methods to reduce the consequences of a terrorist 
attack. For example, placing limits on the amount of explosive 
fuels that can be stored at one facility could result in an 
increase of risk in other areas and less secure activities such 
as use of smaller but more numerous holding tanks, or more 
frequent coupling and decoupling of fuel trucks and fuel tanks.

Section 2111.  Applicability.

    This section clarifies that this legislation shall not 
apply to any facility owned and operated by the Departments of 
Defense, Justice, or Energy, or any facility that is owned or 
operated by a licensee or certificate holder of the Nuclear 
Regulatory Commission. Moreover, this legislation shall not 
apply to the transportation in commerce (including incidental 
storage) of a substance of concern which is regulated as a 
hazardous material under 49 U.S.C. 51.

Section 2112.  Savings Clause.

    This section specifies that nothing in this measure affects 
any existing obligation or liability under any other Federal 
law including section 112 of the Clean Air Act (42 U.S.C. 
7412), the Federal Water Pollution Control Act, the Resource 
Conservation and Recovery Act, the National Environmental 
Policy Act of 1969, the Occupational Safety and Health Act, the 
National Labor Relations Act, the Emergency Planning and 
Community Right to Know Act, the Safe Drinking Water Act, the 
Maritime Transportation Security Act, and the Comprehensive 
Environmental Response, Compensation, and Liability Act.
    The Committee intends for this measure to increase the 
security of our Nation's chemical facilities, while recognizing 
that other laws regarding public and environmental health and 
safety must not be compromised.

Section 2113.  Office of Chemical Facility Security.

    This section establishes within the Department of Homeland 
Security an Office of Chemical Facility Security that is headed 
by a Director. Under the provision, the professional 
qualifications for the Director, a Senior Executive Service 
career position, include a demonstrated knowledge of physical 
infrastructure protection, cybersecurity, chemical facility 
security, hazard analysis, chemical process engineering, 
chemical process safety reviews, and other such factors that 
the Secretary determines to be necessary. In conducting the 
selection process for the Director, the Secretary shall make a 
reasonable effort to select an individual from among a group of 
candidates that is diverse with respect to race, ethnicity, 
age, gender, and disability.

Section 2114.  Security Background Checks of Covered Individuals at 
        Certain Chemical Facilities.

    This section requires the Secretary of Homeland Security to 
issue regulations requiring covered chemical facilities 
assigned to a high-risk tier to subject covered individuals who 
have access to restricted areas or critical assets to security 
background checks based on risk-based guidance. Under this 
provision, such regulations shall address the appropriate 
scope, process, necessary biographical information and other 
data to be collected, as well as redress procedures for 
security background checks performed on such covered 
individuals. This provision directs that, pursuant to the final 
regulation or any future rule, regulation, directive, or 
guidance, a facility shall not make an adverse employment 
decision as a result of a security background check unless the 
individual in question has been convicted of, found not guilty 
by reason of insanity, is under want, warrant, or indictment, 
or has been incarcerated within the past 5 years for a 
permanent or interim disqualifying crime under 49 C.F.R. 1572, 
is determined to be a known terrorist or have terrorist ties, 
or is determined not to be legally authorized to work in the 
United States.
    This section also mandates that an adequate redress process 
for individuals subjected to an adverse employment decision 
because of a background check must be in place for a chemical 
facility to be in compliance with this legislation. Moreover, 
this provision authorizes the Secretary to order an appropriate 
remedy, including reinstatement of the covered individual, 
where a covered chemical facility wrongfully made an adverse 
employment decision; ensures that any such covered individual 
has access to any public-record event that provides the basis 
for the adverse employment decision; and ensures that the 
covered individual receives full wages and benefits until all 
appeals and waiver procedures are exhausted. This section also 
prohibits a chemical facility from misrepresenting to an 
employee or labor arbiter the scope, application, or meaning of 
any rules, regulations, directives, or guidance issued by the 
Secretary related to security background check requirements 
when conducting a security background check.
    This provision directs that any information obtained by the 
Secretary or a covered chemical facility shall not be made 
public, may not be accessed by other employees not directly 
involved with collecting the information or conducting or 
evaluating security background checks, shall be maintained 
confidentially by the facility, may be used only to make 
employment determinations under this provision, and may be 
shared by the Secretary with other Federal law enforcement 
agencies.
    In addition, this section clarifies that nothing contained 
therein shall be construed to abridge any right or 
responsibility of a covered individual or covered chemical 
facility under any other Federal, State, local, or tribal law 
or collective bargaining agreement. Similarly, this section 
shall not be construed to preempt any other Federal, State, 
local, or tribal law that requires criminal history background 
checks, checks on authorization of an individual to work in the 
United States, or other background checks of covered 
individuals.
    This provision defines a security background check as a 
review provided at no cost to the covered individual for the 
purpose of identifying individuals who may pose a threat to 
chemical facility security, to National security, or of 
terrorism. Further, this section defines the following as 
sources for the review: relevant databases to validate 
identity, check criminal history, check legal immigration 
status, identify terrorists or those with terrorist ties, and 
other relevant information as determined by the Secretary. 
Checks conducted to identify terrorists or individuals with 
known terrorist ties must take into consideration all relevant 
databases, including the consolidated terrorist watch list and 
the no-fly list.

Section 2115.  National Chemical Security Center of Excellence.

    This section establishes a National Chemical Security 
Center of Excellence whose mission is to conduct research and 
education and to develop technology to lower the overall risk 
of a terrorist chemical attack, including technologies or 
practices to decrease threats, vulnerabilities, and 
consequences in order to ensure the security of chemical 
facilities. It specifies that at least three institutions of 
higher education must be members of the consortium, of which 
one must be a historically black college or university and one 
must be a Hispanic-serving institution. Under this provision, 
the National Chemical Center of Excellence, and any other 
chemical, biological, or agricultural Center of Excellence must 
be maintained as distinct entities with regard to organization 
and funding.

Section 2116.  Authorization of Appropriations.

    This section authorizes $325 million to the Secretary of 
Homeland Security for FY 2010 to carry out the requirements of 
this legislation, of which $100 million shall be made available 
to facilities for funding capital costs of implementing methods 
to reduce the consequences of a terrorist attack pursuant to 
section 2110(e) of this legislation; $300 million for FY 2011 
to carry out the requirements of this legislation, of which $75 
million shall be made available to facilities for funding 
capital costs of implementing methods to reduce the 
consequences of a terrorist attack pursuant to section 2110(e) 
of this legislation; and $275 million for FY 2012 to carry out 
the requirements of this legislation, of which $50 million 
shall be made available to facilities for funding capital costs 
of implementing methods to reduce the consequences of a 
terrorist attack pursuant to section 2110(e) of this measure.
    This section also repeals section 550 of the Department of 
Homeland Security Appropriations Act of 2007 (P.L. 109-295), to 
be effective October 1, 2009. Moreover, this provision 
specifies that the Secretary may, as the Secretary deems 
appropriate, use any of the existing CFATS regulations to carry 
out the requirements of this measure. It also specifies that 
the Secretary may require chemical facilities to adhere to pre-
existing timelines under such existing regulations, where a 
chemical facility is required to submit a security 
vulnerability assessment and site security plan under section 
2103 of this measure. Additionally, this provision establishes 
deadlines for the Secretary to update guidance, 
recommendations, or suggested action items relating to 
performing a security background check of a covered individual 
and for high-risk chemical facilities to comply with the new 
vulnerability assessment and site security plan requirements.

Section 5.  Annual Report to Congress.

    This section requires an annual report to Congress not 
later than one year from the date of enactment of this 
legislation on progress in achieving compliance with this 
legislation, including an assessment of the effectiveness of 
the site security plans developed under this measure; lessons 
learned in implementation, including red-team exercises; and 
recommendations of the Secretary of Homeland Security to 
improve those areas, including the feasibility of programs to 
increase the number of economically disadvantaged businesses 
eligible to perform third-party entity responsibilities. This 
provision also directs that the report may not include 
information protected under section 2108 of this legislation.
    The Committee intends that the assessment of programs, 
plans, and procedures should describe and enumerate the scope 
of the program using aggregate information, including but not 
limited to the number of facilities that are covered; number 
that are in compliance; number that have implemented 
alternative approaches; number that are in each risk tier; 
number that have moved to a lower risk tier; and, for each risk 
tier, the number of facilities sorted by population at risk in 
and around each facility.

Section 6.  Inspector General Report.

    This section requires the Inspector General to submit a 
report to Congress on the effectiveness of the implementation 
of this measure, including the effectiveness of the site 
security plans required under this measure and any 
recommendations to improve the programs, plans, and procedures 
required under its provisions, the Secretary's dissemination of 
best practices under section 2103(a)(1)(A) of this measure, and 
the participating rates of economically disadvantaged 
businesses eligible to perform third-party entity 
responsibilities. Under this provision, the Inspector General's 
report must be submitted not later than October 1, 2010, and 
may include a classified annex if deemed necessary.

Section 7.  Deadline for Regulations.

    This section sets the effective date for full 
implementation of final rules as October 1, 2009. The Committee 
intends for all Federal Agencies to take into account all 
necessary regulatory processes and timelines to guarantee full 
implementation by this date.

Section 8.  Chemical Facility Training Program.

    This section amends title VIII of the Homeland Security Act 
of 2002 (6 U.S.C. 361) by adding a new section 802 that 
establishes a Chemical Facility Security Training Program to 
enhance collective response to terrorism and the capabilities 
of chemical facilities to prevent, prepare for, respond to, 
mitigate against, and recover from threatened or actual 
terrorist incidents. This provision also specifies that the 
Program provide training across multiple disciplines, including 
Federal, State, and local authorities; chemical plant owners, 
operators, and employees; and governmental and nongovernmental 
emergency response providers. It also directs that the training 
shall be consistent with the National Incident Management 
System, the National Response Framework, the National 
Infrastructure Protection Plan, and the National Preparedness 
Guidelines. In addition, under this section, the Secretary 
shall support the promulgation of national voluntary consensus 
standards for such training programs and shall work with 
government training programs, chemical facilities, academic 
institutions, industry and private organizations, employee 
organizations, and others to develop and deliver state-of-the-
art training. This section also directs the Secretary to 
utilize, as appropriate, existing training provided by 
industry, public safety academies, Federal programs, employee 
organizations, State and private colleges and universities, and 
other chemical facilities

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                     HOMELAND SECURITY ACT OF 2002

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) * * *
  (b) Table of Contents.--The table of contents for this Act is 
as follows:
     * * * * * * *

 TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL; 
      UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS

           Subtitle A--Coordination with Non-Federal Entities

     * * * * * * *
Sec. 802. Chemical facility training program.
     * * * * * * *

   TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES

Sec. 2101. Definitions.
Sec. 2102. Risk-based designation and ranking of chemical facilities.
Sec. 2103. Security vulnerability assessments and site security plans.
Sec. 2104. Record keeping; site inspections.
Sec. 2105. Enforcement.
Sec. 2106. Penalties.
Sec. 2107. Federal preemption.
Sec. 2108. Protection of information.
Sec. 2109. Certification by third-party entities.
Sec. 2110. Methods to reduce the consequences of a terrorist attack.
Sec. 2111. Applicability.
Sec. 2112. Savings clause.
Sec. 2113. Office of Chemical Facility Security.
Sec. 2114. Security background checks of covered individuals at certain 
          chemical facilities.
Sec. 2114. National chemical security center of excellence.
Sec. 2115. Authorization of appropriations.

           *       *       *       *       *       *       *

TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL; 
     UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS

Subtitle A--Coordination with Non-Federal Entities

           *       *       *       *       *       *       *

SEC. 802. CHEMICAL FACILITY TRAINING PROGRAM.

  (a) In General.--The Secretary shall establish a Chemical 
Facility Security Training Program (referred to in this section 
as the ``Program'') for the purpose of enhancing the collective 
response to terrorism and the capabilities of chemical 
facilities to prevent, prepare for, respond to, mitigate 
against, and recover from threatened or actual chemical 
facility terrorist incidents.
  (b) Requirements.--The Program shall provide training that--
          (1) reaches multiple disciplines, including Federal, 
        State, local, and tribal government officials, chemical 
        facility owners, operators, and employees, and 
        governmental and nongovernmental emergency response 
        providers;
          (2) utilizes multiple training mediums and methods;
          (3) addresses chemical facility security and site 
        security plans, including--
                  (A) site security plans and procedures for 
                differing threat levels;
                  (B) physical security, security equipment and 
                systems, access control, and methods for 
                preventing and countering theft;
                  (C) recognition and detection of weapons and 
                devices;
                  (D) security incident procedures, including 
                procedures for communicating with emergency 
                response providers;
                  (E) evacuation procedures and use of 
                appropriate personal protective equipment; and
                  (F) other requirements that the Secretary 
                deems appropriate.
          (4) is consistent with, and supports implementation 
        of, the National Incident Management System, the 
        National Response Framework, the National 
        Infrastructure Protection Plan, the National 
        Preparedness Guidelines, and other national 
        initiatives;
          (5) includes consideration of existing security and 
        hazardous chemical training programs including Federal 
        or industry programs; and
          (6) is evaluated against clear and consistent 
        performance measures.
  (c) National Voluntary Consensus Standards.--The Secretary 
shall--
          (1) support the promulgation, and regular updating as 
        necessary and appropriate of national voluntary 
        consensus standards for chemical facility security 
        training ensuring that training is consistent with such 
        standards; and
          (2) ensure that the training provided under this 
        section is consistent with such standards.
  (d) Training Partners.--In developing and delivering training 
under the Program, the Secretary shall--
          (1) work with government training programs, chemical 
        facilities, academic institutions, industry and private 
        organizations, employee organizations, and other 
        relevant entities that provide specialized state-of-
        the-art training; and
          (2) utilize, as appropriate, training provided by 
        industry, public safety academies, Federal programs, 
        employee organizations, State and private colleges and 
        universities, and other chemical facilities.

           *       *       *       *       *       *       *

   TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES

SEC. 2101. DEFINITIONS.

  In this title, the following definitions apply:
          (1) The term ``chemical facility'' means any 
        facility--
                  (A) at which a chemical is or may be used, 
                stored, manufactured, processed or distributed; 
                and
                  (B) for which the Secretary requires the 
                owner or operator of the chemical facility to 
                submit information pursuant to section 
                2102(b)(2).
          (2) The term ``chemical facility security performance 
        standard'' means a risk-based standard established by 
        the Secretary to ensure or enhance the security of a 
        chemical facility against a chemical facility terrorist 
        incident that is designed to address--
                  (A) restricting the area perimeter;
                  (B) securing site assets;
                  (C) screening and controlling access to the 
                facility and to restricted areas within the 
                facility by screening or inspecting individuals 
                and vehicles as they enter, including--
                          (i) measures to deter the 
                        unauthorized introduction of dangerous 
                        substances and devices that may 
                        facilitate a chemical facility 
                        terrorist incident or actions having 
                        serious negative consequences for the 
                        population surrounding the chemical 
                        facility; and
                          (ii) measures implementing a 
                        regularly updated identification system 
                        that checks the identification of 
                        chemical facility personnel and other 
                        persons seeking access to the chemical 
                        facility and that discourages abuse 
                        through established disciplinary 
                        measures;
                  (D) methods to deter, detect, and delay a 
                chemical facility terrorist incident, creating 
                sufficient time between detection of a chemical 
                facility terrorist incident and the point at 
                which the chemical facility terrorist incident 
                becomes successful, including measures to--
                          (i) deter vehicles from penetrating 
                        the chemical facility perimeter, 
                        gaining unauthorized access to 
                        restricted areas, or otherwise 
                        presenting a hazard to potentially 
                        critical targets;
                          (ii) deter chemical facility 
                        terrorist incidents through visible, 
                        professional, well-maintained security 
                        measures and systems, including 
                        security personnel, detection systems, 
                        barriers and barricades, and hardened 
                        or reduced value targets;
                          (iii) detect chemical facility 
                        terrorist incidents at early stages 
                        through counter surveillance, 
                        frustration of opportunity to observe 
                        potential targets, surveillance and 
                        sensing systems, and barriers and 
                        barricades; and
                          (iv) delay a chemical facility 
                        terrorist incident for a sufficient 
                        period of time so as to allow 
                        appropriate response through on-site 
                        security response, barriers and 
                        barricades, hardened targets, and well-
                        coordinated response planning;
                  (E) securing and monitoring the shipping, 
                receipt, and storage of a substance of concern 
                for the chemical facility;
                  (F) deterring theft or diversion of a 
                substance of concern;
                  (G) deterring insider sabotage;
                  (H) deterring cyber sabotage, including by 
                preventing unauthorized onsite or remote access 
                to critical process controls, including 
                supervisory control and data acquisition 
                systems, distributed control systems, process 
                control systems, industrial control systems, 
                critical business systems, and other sensitive 
                computerized systems;
                  (I) developing an emergency plan to respond 
                to chemical facility terrorist incidents with 
                the guidance of the Secretary that includes, as 
                appropriate, an early warning system for local 
                emergency response providers and the community 
                surrounding the facility, and exercising such 
                plan internally and with the assistance of 
                local law enforcement officials and emergency 
                response providers to enhance the collective 
                response to terrorism;
                  (J) maintaining effective monitoring, 
                communications, and warning systems, 
                including--
                          (i) measures designed to ensure that 
                        security systems and equipment are in 
                        good working order and inspected, 
                        tested, calibrated, and otherwise 
                        maintained;
                          (ii) measures designed to regularly 
                        test security systems, note 
                        deficiencies, correct for detected 
                        deficiencies, and record results so 
                        that they are available for inspection 
                        by the Department; and
                          (iii) measures to allow the chemical 
                        facility to promptly identify and 
                        respond to security system and 
                        equipment failures or malfunctions;
                  (K) ensuring mandatory annual security 
                training, exercises, and drills of chemical 
                facility personnel;
                  (L) performing personnel surety for 
                individuals with access to restricted areas or 
                critical assets by conducting appropriate 
                background checks and ensuring appropriate 
                credentials for unescorted visitors and 
                chemical facility personnel, including 
                permanent and part-time personnel, temporary 
                personnel, and contract personnel, including--
                          (i) measures designed to verify and 
                        validate identity;
                          (ii) measures designed to check 
                        criminal history;
                          (iii) measures designed to verify and 
                        validate legal authorization to work; 
                        and
                          (iv) measures designed to identify 
                        people with terrorist ties;
                  (M) escalating the level of protective 
                measures for periods of elevated threat;
                  (N) specific threats, vulnerabilities, or 
                risks identified by the Secretary for that 
                chemical facility;
                  (O) reporting of significant security 
                incidents to the Department and to appropriate 
                local law enforcement officials;
                  (P) identifying, investigating, reporting, 
                and maintaining records of significant security 
                incidents and suspicious activities in or near 
                the site;
                  (Q) establishing one or more officials and an 
                organization responsible for security and for 
                compliance with these standards;
                  (R) maintaining appropriate records relating 
                to the security of the facility;
                  (S) assessing, as appropriate, or utilizing 
                methods to reduce the consequences of a 
                terrorist attack; or
                  (T) any additional security performance 
                standards the Secretary may specify.
          (3) The term ``chemical facility terrorist incident'' 
        means an act or attempted act of terrorism committed 
        at, near, or against a chemical facility, including--
                  (A) the release of a substance of concern 
                from a chemical facility into the surrounding 
                area as a consequence of an act of terrorism; 
                or
                  (B) the obtaining of a substance of concern 
                by any person for the purpose of using the 
                substance at a location other than the chemical 
                facility in furtherance of an act of terrorism; 
                or
                  (C) the sabotage of a chemical facility or a 
                substance of concern at a chemical facility in 
                furtherance of an act of terrorism.
          (4) The term ``employee representative'' means a 
        representative of the certified or recognized 
        bargaining agent engaged in a collective bargaining 
        relationship with a private or public owner or operator 
        of a chemical facility.
          (5) The term ``covered individual'' means a 
        permanent, temporary, full-time, or part-time employee 
        of a covered chemical facility or an employee of an 
        entity with which the covered chemical facility has 
        entered into a contract who is performing 
        responsibilities at the facility pursuant to the 
        contract.
          (6) The term ``covered chemical facility'' means a 
        chemical facility that the Secretary assigns to a risk-
        based tier under section 2102(c) that is required to 
        submit a security vulnerability assessment and site 
        security plan under section 2103.
          (7) The term ``environment'' has the meaning given 
        the term in section 101 of the Comprehensive 
        Environmental Response Compensation and Liability Act 
        of 1980 (42 U.S.C. 9601).
          (8) The term ``owner or operator of a chemical 
        facility'' means any of the following:
                  (A) The person who owns a chemical facility.
                  (B) The person who leases such a facility.
                  (C) The person who operates such a facility.
          (9) The term ``release'' has the meaning given the 
        term in section 101 of the Comprehensive Environmental 
        Response Compensation and Liability Act of 1980 (42 
        U.S.C. 9601).
          (10) The term ``substance of concern'' means a 
        chemical substance in quantity and form that is 
        designated by the Secretary under section 2102(a) as a 
        chemical substance that poses a risk of being used in 
        furtherance of a chemical facility terrorist incident.
          (11) The term ``method to reduce the consequences of 
        a terrorist attack'' includes--
                  (A) input substitution;
                  (B) catalyst or carrier substitution;
                  (C) process redesign (including reuse or 
                recycling of a substance of concern);
                  (D) product reformulation;
                  (E) procedure simplification;
                  (F) technology modification;
                  (G) use of less hazardous substances or 
                benign substances;
                  (H) use of smaller quantities of substances 
                of concern;
                  (I) reduction of hazardous pressures or 
                temperatures;
                  (J) reduction of the possibility and 
                potential consequences of equipment failure and 
                human error;
                  (K) improvement of inventory control and 
                chemical use efficiency; and
                  (L) reduction or elimination of the storage, 
                transportation, handling, disposal, and 
                discharge of substances of concern.

SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF CHEMICAL FACILITIES.

  (a) Substances of Concern.--
          (1) Designation by the secretary.--The Secretary may 
        designate any chemical substance as a substance of 
        concern and establish and revise the threshold quantity 
        for a substance of concern.
          (2) Matters for consideration.--In designating a 
        chemical substance or establishing or adjusting the 
        threshold quantity for a chemical substance under 
        paragraph (1), the Secretary shall consider the 
        potential extent of death, injury, and serious adverse 
        effects to human health, the environment, critical 
        infrastructure, national security, the national 
        economy, and public welfare that would result from a 
        chemical facility terrorist incident.
  (b) List of Covered Chemical Facilities.--
          (1) Criteria for list of facilities.--The Secretary 
        shall maintain a list of covered chemical facilities 
        that the Secretary determines are of sufficient 
        security risk for inclusion on the list based on the 
        following criteria:
                  (A) The potential threat or likelihood that 
                the chemical facility will be the target of a 
                chemical facility terrorist incident.
                  (B) The potential extent and likelihood of 
                death, injury, or serious adverse effects to 
                human health, the environment, critical 
                infrastructure, national security, the national 
                economy, and public welfare that could result 
                from a chemical facility terrorist incident.
                  (C) The proximity of the chemical facility to 
                population centers.
          (2) Submission of information.--The Secretary may 
        require the submission of information with respect to 
        the quantities of substances of concern that are used, 
        stored, manufactured, processed, or distributed by any 
        chemical facility to determine whether to designate a 
        chemical facility as a covered chemical facility for 
        purposes of this title.
  (c) Assignment of Chemical Facilities to Risk-Based Tiers.--
          (1) Assignment.--The Secretary shall assign each 
        covered chemical facility to one of at least four risk-
        based tiers established by the Secretary.
          (2) Provision of information.--The Secretary may 
        request, and the owner or operator of a covered 
        chemical facility shall provide, any additional 
        information beyond any information required to be 
        submitted under subsection (b)(2) that is needed for 
        the Secretary to assign the chemical facility to the 
        appropriate tier under paragraph (1).
          (3) High-risk chemical facilities.--At least one of 
        the tiers established by the Secretary for the 
        assignment of chemical facilities under this subsection 
        shall be a tier designated for high-risk chemical 
        facilities.
          (4) Authority to review.--The Secretary shall 
        periodically review the criteria under subsection 
        (b)(1) and may, at any time, determine whether a 
        chemical facility is a covered chemical facility or is 
        no longer a covered chemical facility or change the 
        tier assignment under paragraph (1) of any covered 
        chemical facility.
          (5) Notification.--Not later than 60 days after the 
        date on which the Secretary determines that a chemical 
        facility is a covered chemical facility or is no longer 
        a covered chemical facility or changes the tier 
        assignment under paragraph (1) of a covered chemical 
        facility, the Secretary shall notify the owner or 
        operator of that chemical facility of that 
        determination or change together with the reason for 
        the determination or change.

SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND SITE SECURITY PLANS.

  (a) Security Vulnerability Assessment and Site Security Plan 
Required for Covered Chemical Facilities.--
          (1) Requirement for security vulnerability assessment 
        and site security plan.--The Secretary shall--
                  (A) establish standards, protocols, and 
                procedures for security vulnerability 
                assessments and site security plans to be 
                required for covered chemical facilities;
                  (B) provide to the owner or operator of each 
                covered chemical facility--
                          (i) the number of individuals at risk 
                        of death, injury, or severe adverse 
                        effects to human health as a result of 
                        a worst case chemical facility 
                        terrorist incident at the covered 
                        chemical facility;
                          (ii) information related to the 
                        criticality of the covered chemical 
                        facility for purposes of assessing the 
                        degree to which the facility is 
                        critical to the economy or national 
                        security of the United States;
                          (iii) the proximity or 
                        interrelationship of the covered 
                        chemical facility to other critical 
                        infrastructure, including any utility 
                        or infrastructure (including 
                        transportation) upon which the chemical 
                        facility relies to operate safely and 
                        securely; and
                          (iv) recommended best practices for 
                        securing chemical facilities;
                  (C) require the owner or operator of each 
                such covered chemical facility to--
                          (i) conduct an assessment of the 
                        vulnerability of the covered chemical 
                        facility to a chemical facility 
                        terrorist incident;
                          (ii) prepare and implement a site 
                        security plan for that covered chemical 
                        facility that addresses the security 
                        vulnerability assessment and the risk-
                        based chemical security performance 
                        standards under subsection (c); and
                          (iii) include appropriate supervisory 
                        and non-supervisory employees of the 
                        covered chemical facility, and any 
                        employee representatives, as 
                        appropriate, in developing the security 
                        vulnerability assessment and site 
                        security plan required under this 
                        clause; and
                  (D) set deadlines for the completion of 
                security vulnerability assessments and site 
                security plans.
          (2) Criteria.--The Secretary shall ensure that the 
        requirements under paragraph (1)--
                  (A) are risk-based;
                  (B) are performance-based; and
                  (C) take into consideration--
                          (i) the cost and technical 
                        feasibility of compliance by a covered 
                        chemical facility with the requirements 
                        under this title;
                          (ii) the different quantities and 
                        forms of substances of concern stored, 
                        used, and handled at covered chemical 
                        facilities; and
                          (iii) the criteria under section 
                        2102(a)(2).
  (b) Minimum Requirements for High-Risk Chemical Facilities.--
          (1) Requirements for security vulnerability 
        assessments.--In the case of a covered chemical 
        facility assigned to a high-risk tier under section 
        2102(c)(3), the Secretary shall require that the 
        security vulnerability assessment required under this 
        section for that chemical facility include each of the 
        following:
                  (A) The identification of any hazard that 
                could result from a chemical facility terrorist 
                incident at the facility.
                  (B) Any vulnerability of the chemical 
                facility with respect to--
                          (i) physical security;
                          (ii) programmable electronic devices, 
                        computers, computer or communications 
                        networks, Supervisory Control and Data 
                        Acquisition systems, Process Control 
                        Systems, or other automated systems 
                        used by the chemical facility;
                          (iii) alarms, cameras, and other 
                        protection systems;
                          (iv) communication systems;
                          (v) insider threats; and
                          (vi) the structural integrity of 
                        equipment for storage, handling, and 
                        other purposes.
                  (C) Consideration of information relating to 
                threats relevant to the chemical facility that 
                is provided by the Secretary in accordance with 
                paragraph (3).
                  (D) Such other information as the Secretary 
                determines is appropriate.
          (2) Requirements for site security plans.--In the 
        case of a covered chemical facility assigned to a high-
        risk tier under section 2102(c)(3), the Secretary shall 
        require that the site security plan required under this 
        section for that chemical facility include each of the 
        following:
                  (A) A description of security measures 
                selected by the facility that--
                          (i) address the vulnerabilities of 
                        the facility identified in the security 
                        vulnerability assessment; and
                          (ii) meet the risk-based chemical 
                        facility security performance standards 
                        established by the Secretary.
                  (B) A plan and schedule for periodic drills 
                and exercises to be conducted at the chemical 
                facility the development and execution of which 
                includes participation by appropriate 
                supervisory and non-supervisory facility 
                employees and any employee representatives, 
                local law enforcement agencies, and emergency 
                response providers.
                  (C) Equipment, plans, and procedures to be 
                implemented or used by or at the chemical 
                facility in the event of a chemical facility 
                terrorist incident that affects the facility, 
                including site evacuation, release mitigation, 
                and containment plans.
                  (D) An identification of any steps taken to 
                coordinate with State, local, and tribal law 
                enforcement agencies, emergency response 
                providers, the Department and other Federal 
                agencies, and Federal officials on security 
                measures and plans for the collective response 
                to a chemical facility terrorist incident.
                  (E) A specification of the security officer 
                who will be the point of contact for incident 
                management purposes and for Federal, State, 
                local, and tribal law enforcement and emergency 
                response providers.
                  (F) A description of enhanced security 
                measures to be used during periods of time when 
                the Secretary determines that heightened 
                terrorist threat conditions exist.
                  (G) An assessment and, as appropriate, a plan 
                to implement methods to reduce the consequences 
                of a terrorist attack.
          (3) Provision of threat-related information.--
                  (A) Responsibilities of the secretary.--The 
                Secretary shall provide in a timely manner, to 
                the maximum extent practicable under applicable 
                authority and in the interests of national 
                security, to an owner, operator, or security 
                officer of a chemical facility assigned to the 
                high-risk tier under section 2102(c)(3), or 
                another appropriate person, threat information 
                that is relevant to that chemical facility, 
                including an assessment of the most likely 
                method that could be used by terrorists to 
                exploit any vulnerabilities of the chemical 
                facility and the likelihood of the success of 
                such method.
                  (B) Responsibilities of owner or operator.--
                The Secretary shall require the owner or 
                operator of a covered chemical facility to 
                provide in a timely manner to the Secretary a 
                full report on any intentional, attempted, or 
                accidental penetration of the physical security 
                or cyber security of the covered chemical 
                facility.
          (4) Red team exercises.--The Secretary shall conduct 
        red team exercises at chemical facilities selected by 
        the Secretary that have been assigned to a high-risk 
        tier under section 2102(c)(3). The Secretary shall 
        ensure that each such facility shall undergo a red team 
        exercise during the six-year period that begins on the 
        effective date of the regulations prescribed to carry 
        out this title. The exercises required under this 
        paragraph shall be--
                  (A) conducted after informing the owner or 
                operator and any employee representative of the 
                selected chemical facility and receiving 
                positive confirmation from such owner or 
                operator and employee representative, if any;
                  (B) designed to identify at the selected 
                chemical facility--
                          (i) any vulnerabilities of the 
                        chemical facility;
                          (ii) possible methods of a chemical 
                        facility terrorist incident at that 
                        facility; and
                          (iii) any weaknesses in the security 
                        plan of the chemical facility; and
                  (C) conducted so as not to compromise the 
                security or safety of the chemical facility 
                during the exercises.
          (5) Provision of technical guidance.--The Secretary 
        shall provide, upon request, assistance and guidance to 
        a covered chemical facility conducting a security 
        vulnerability assessment or site security plan required 
        under this section.
  (c) Risk-Based Chemical Security Performance Standards.--
          (1) In general.--The Secretary shall establish risk-
        based chemical security performance standards for the 
        site security plans required to be prepared by covered 
        chemical facilities. The standards shall--
                  (A) require separate and increasingly 
                stringent risk-based chemical security 
                performance standards for site security plans 
                as the level of risk associated with the tier 
                increases; and
                  (B) permit each covered chemical facility 
                submitting a site security plan to select a 
                combination of security measures that satisfy 
                the risk-based chemical security performance 
                standards established by the Secretary under 
                this subsection.
          (2) Criteria.--In establishing the risk-based 
        chemical security performance standards under paragraph 
        (1), the Secretary shall consider the criteria under 
        subsection (a)(2).
          (3) Guidance.--The Secretary shall provide guidance 
        to each covered chemical facility regarding the types 
        of security performance measures that, if applied, 
        could satisfy the requirements under this section, 
        including measures using methods to reduce the 
        consequences of a terrorist attack that, if applied, 
        could result in the Secretary removing the facility 
        from the list or assigning the facility to a lower risk 
        tier.
  (d) Co-Located Chemical Facilities.--The Secretary shall 
allow the owner or operator of two or more chemical facilities 
that are located geographically close to each other or 
otherwise co-located to develop and implement coordinated 
security vulnerability assessments and site security plans, at 
the discretion of the owner or operator of the chemical 
facilities.
  (e) Alternate Security Programs Satisfying Requirements for 
Security Vulnerability Assessment and Site Security Plan.--
          (1) Determination by the secretary.--In response to a 
        request by an owner or operator of a covered chemical 
        facility, or at the discretion of the Secretary, the 
        Secretary may accept an alternative security program 
        that the Secretary determines meets all or part of the 
        requirements of this section and that provides for an 
        equivalent level of security to the level of security 
        provided for by the requirements of this title.
          (2) Use of alternate security programs.--
                  (A) Use by individual chemical facilities.--
                Upon review and written determination by the 
                Secretary under paragraph (1) that the 
                alternate security program of a covered 
                chemical facility subject to the requirements 
                of this section satisfies some or all of the 
                requirements of this section, the chemical 
                facility may use that alternate security 
                program.
                  (B) Use by classes of chemical facilities.--
                At the discretion of the Secretary, the 
                Secretary may identify a class or category of 
                covered chemical facilities subject to the 
                requirements of this section that may use an 
                alternate security program recognized under 
                this section in order to comply with all or 
                part of the requirements of this section.
          (3) Partial recognition.--If the Secretary finds that 
        an alternate security program satisfies only part of 
        the requirements of this section, the Secretary may 
        allow a covered chemical facility subject to the 
        requirements of this section to comply with that 
        alternate security program for purposes of that 
        requirement, but shall require the covered chemical 
        facility to submit any additional information required 
        to satisfy the requirements of this section not met by 
        that alternate security program.
          (4) Notification.--If the Secretary does not approve 
        an alternate security program for which a petition is 
        submitted under paragraph (1), the Secretary shall 
        provide to the person submitting a petition under 
        paragraph (1) written notification that includes an 
        explanation of the reasons why the approval was not 
        made.
          (5) Review required.--Nothing in this subsection 
        shall relieve the Secretary of the obligation--
                  (A) to review a security vulnerability 
                assessment and site security plan submitted by 
                a covered chemical facility under this section; 
                and
                  (B) to approve or disapprove each such 
                assessment or plan on an individual basis.
  (f) Other Authorities.--
          (1) Other provisions of law.--A covered chemical 
        facility that is required to prepare a security 
        vulnerability assessment or site security plan or to 
        submit or develop other relevant documents under 
        chapter 701 of title 46, United States Code, the 
        Federal Water Pollution Control Act (33 U.S.C. 1251 et 
        seq.), or section 1433 of the Safe Drinking Water Act 
        (42 U.S.C. 300i-2) shall submit such plan or documents 
        to the Secretary. The Secretary shall determine the 
        extent to which actions taken by such a chemical 
        facility pursuant to another provision of law fulfill 
        the requirements of this section and may require such a 
        chemical facility to complete any additional action 
        required by this section. The Secretary shall work with 
        the heads of the other Federal departments and agencies 
        with authority with respect to such a covered chemical 
        facility to ensure that requirements under other 
        provisions of law and the requirements under this title 
        are non-duplicative and non-contradictory.
          (2) Coordination of storage licensing or permitting 
        requirement.--In the case of any storage required to be 
        licensed or permitted under chapter 40 of title 18, 
        United States Code, the Secretary shall prescribe the 
        rules and regulations for the implementation of this 
        section with the concurrence of the Attorney General 
        and avoid unnecessary duplication of regulatory 
        requirements.
  (g) Role of Employees.--
          (1) Description of role required.--As appropriate, 
        security vulnerability assessments or site security 
        plans required under this section should describe the 
        roles or responsibilities that chemical facility 
        employees are expected to perform to deter or respond 
        to a chemical facility terrorist incident.
          (2) Training for employees.--The owner or operator of 
        a covered facility required to submit a site security 
        plan under this section shall annually provide each 
        employee of the facility with a minimum of 8 hours of 
        training. Such training shall include--
                  (A) an identification and discussion of 
                substances of concern that pose a risk to the 
                workforce, emergency response providers, and 
                the community;
                  (B) a discussion of the prevention, 
                preparedness, and response plan for the 
                facility, including off-site consequence 
                impacts;
                  (C) an identification of opportunities to 
                reduce or eliminate the vulnerability of the 
                facility to a terrorist incident through the 
                use of methods to reduce the consequences of a 
                terrorist attack; and
                  (D) a discussion and practice of appropriate 
                emergency response procedures.

SEC. 2104. RECORD KEEPING; SITE INSPECTIONS.

  (a) Record Keeping.--The Secretary shall require each covered 
chemical facility required to submit a security vulnerability 
assessment or site security plan under section 2103 to maintain 
a current copy of the assessment and the plan at the chemical 
facility.
  (b) Right of Entry.--For purposes of carrying out this title, 
the Secretary (or a designee of the Secretary) shall have, at a 
reasonable time and on presentation of credentials, a right of 
entry to, on, or through any property of a covered chemical 
facility or any property on which any record required to be 
maintained under this section is located.
  (c) Inspections and Verifications.--
          (1) In general.--The Secretary shall, at such time 
        and place as the Secretary determines to be reasonable 
        and appropriate, conduct or require the conduct of 
        chemical facility security inspections and 
        verifications and may, by regulation, authorize third-
        party inspections and verifications by persons trained 
        and certified by the Secretary for that purpose.
          (2) Requirements.--To ensure and evaluate compliance 
        with this title, including any regulations or 
        requirements adopted by the Secretary in furtherance of 
        the purposes of this title, in conducting or requiring 
        an inspection or verification under paragraph (1), the 
        Secretary shall--
                  (A) consult with owners, operators, and 
                supervisory and non-supervisory employees of 
                the covered chemical facility, and any employee 
                representatives, as appropriate; and
                  (B) provide an opportunity to such owners, 
                operators, employees, and employee 
                representatives to be present during the 
                inspection or verification for the purpose of 
                providing assistance when and where it is 
                appropriate.
  (d) Requests for Records.--
          (1) In general.--In carrying out this title, the 
        Secretary (or a designee of the Secretary) may require 
        the submission of or, on presentation of credentials, 
        may at reasonable times obtain access to and copy any 
        documentation necessary for--
                  (A) reviewing or analyzing a security 
                vulnerability assessment or site security plan 
                submitted under section 2103; or
                  (B) implementing such a site security plan.
          (2) Proper handling of records.--In accessing or 
        copying any documentation under paragraph (1), the 
        Secretary (or a designee of the Secretary) shall ensure 
        that the documentation is handled and secured 
        appropriately.
  (e) Provision of Records to Employee Representatives.--If a 
covered chemical facility required to submit a security 
vulnerability assessment or site security plan submitted under 
section 2103 has an employee representative, the owner or 
operator of the facility shall provide the employee 
representative with a copy of any security vulnerability 
assessment or site security plan submitted. The employee 
representative shall ensure that any such assessment or plan 
provided to the representative is handled and secured 
appropriately in accordance with section 2108.
  (f) Compliance.--If the Secretary determines that an owner or 
operator of a covered chemical facility required to submit a 
security vulnerability assessment or site security plan under 
section 2103 fails to maintain, produce, or allow access to 
records or to the property of the covered chemical facility as 
required by this section, the Secretary shall issue an order 
requiring compliance with this section.

SEC. 2105. ENFORCEMENT.

  (a) Submission of Information.--
          (1) Initial submission.--The Secretary shall 
        establish specific deadlines for the submission to the 
        Secretary of the security vulnerability assessments and 
        site security plans required under this title. The 
        Secretary may establish different submission 
        requirements for the different tiers of chemical 
        facilities under section 2102(c).
          (2) Major changes requirement.--The Secretary shall 
        establish specific deadlines and requirements for the 
        submission by a covered chemical facility of 
        information describing--
                  (A) any change in the use by the covered 
                chemical facility of more than a threshold 
                amount of any substance of concern that could 
                affect the requirements of the chemical 
                facility under this title; and
                  (B) any significant change in a security 
                vulnerability assessment or site security plan 
                submitted by the covered chemical facility.
          (3) Periodic review by chemical facility required.--
        The Secretary shall require the owner or operator of a 
        covered chemical facility required to submit a security 
        vulnerability assessment or site security plan under 
        this section to periodically submit to the Secretary a 
        review of the adequacy of the security vulnerability 
        assessment or site security plan that includes a 
        description of any changes made to the security 
        vulnerability assessment or site security plan.
  (b) Review of Site Security Plan.--
          (1) Deadline for review.--Not later than 180 days 
        after the date on which the Secretary receives a 
        security vulnerability assessment or site security plan 
        under this title, the Secretary shall review and 
        approve or disapprove such assessment or plan.
          (2) Disapproval.--The Secretary shall disapprove a 
        security vulnerability assessment or site security plan 
        if the Secretary determines that--
                  (A) the security vulnerability assessment or 
                site security plan does not comply with the 
                requirements under section 2103; or
                  (B) in the case of a site security plan, the 
                plan or the implementation of the plan is 
                insufficient to address any vulnerabilities 
                identified in a security vulnerability 
                assessment of the covered chemical facility or 
                associated oversight actions taken under 
                section 2103 or section 2104, including a red 
                team exercise.
          (3) Provision of notification of disapproval.--If the 
        Secretary disapproves the security vulnerability 
        assessment or site security plan submitted by a covered 
        chemical facility under this title or the 
        implementation of a site security plan by such a 
        chemical facility, the Secretary shall--
                  (A) provide the owner or operator of the 
                covered chemical facility a written 
                notification of the disapproval, that--
                          (i) includes a clear explanation of 
                        deficiencies in the assessment, plan, 
                        or implementation of the plan; and
                          (ii) requires the owner or operator 
                        of the covered chemical facility to 
                        revise the assessment or plan to 
                        address any deficiencies and, by such 
                        date as the Secretary determines is 
                        appropriate, to submit to the Secretary 
                        the revised assessment or plan;
                  (B) provide guidance to assist the owner or 
                operator of the covered chemical facility in 
                addressing such deficiency;
                  (C) in the case of a covered chemical 
                facility for which the owner or operator of the 
                facility does not address such deficiencies by 
                such date as the Secretary determines to be 
                appropriate, issue an order requiring the owner 
                or operator to correct specified deficiencies 
                by a specified date; and
                  (D) in the case of a covered chemical 
                facility assigned to a high-risk tier under 
                section 2102(c)(3), upon the request of the 
                owner or operator of the facility, consult with 
                the owner or operator to identify appropriate 
                steps to be taken by the owner or operator to 
                address the deficiencies identified by the 
                Secretary.
          (4) Order to cease operations.--If the Secretary 
        determines that the owner or operator of a chemical 
        facility assigned to a high-risk tier under section 
        2102(c)(3) continues to be in noncompliance after an 
        order for compliance is issued under paragraph (3), the 
        Secretary may issue an order to the owner or operator 
        to cease operations at the facility until the owner or 
        operator complies with the order issued under paragraph 
        (3). Notwithstanding the preceding sentence, the 
        Secretary may not issue an order to cease operations 
        under this paragraph to the owner or operator of a 
        drinking water or wastewater facility unless the 
        Secretary determines that continued operation of the 
        facility represents a clear and present danger to 
        homeland security.
  (c) Reporting Process.--
          (1) Establishment.--The Secretary shall establish, 
        and provide information to the public regarding a 
        process by which any person may submit a report to the 
        Secretary regarding problems, deficiencies, or 
        vulnerabilities at a covered chemical facility 
        associated with the risk of a chemical facility 
        terrorist incident.
          (2) Confidentiality.--The Secretary shall keep 
        confidential the identity of a person that submits a 
        report under paragraph (1) and any such report shall be 
        treated as protected information under section 2108(f) 
        to the extent that it does not consist of publicly 
        available information.
          (3) Acknowledgment of receipt.--If a report submitted 
        under paragraph (1) identifies the person submitting 
        the report, the Secretary shall respond promptly to 
        such person to acknowledge receipt of the report.
          (4) Steps to address problems.--The Secretary shall 
        review and consider the information provided in any 
        report submitted under paragraph (1) and shall take 
        appropriate steps under this title to address any 
        problem, deficiency, or vulnerability identified in the 
        report.
  (d) Retaliation Prohibited.--
          (1) Prohibition.--No owner or operator of a chemical 
        facility, profit or not-for-profit corporation, 
        association, or any contractor, subcontractor or agent 
        thereof, or a Federal, State, local, or tribal 
        government agency may discharge any employee or 
        otherwise discriminate against any employee with 
        respect to his compensation, terms, conditions, 
        security clearance or other access to classified or 
        sensitive information, or other privileges of 
        employment because the employee (or any person acting 
        pursuant to a request of the employee)--
                  (A) notified the Secretary, the owner or 
                operator of a chemical facility, or the 
                employee's employer of an alleged violation of 
                this title, including communications related to 
                carrying out the employee's job duties;
                  (B) refused to engage in any practice made 
                unlawful by this title, if the employee has 
                identified the alleged illegality to the 
                employer;
                  (C) testified before or otherwise provided 
                information relevant for Congress or for any 
                Federal or State proceeding regarding any 
                provision (or proposed provision) of this 
                title;
                  (D) commenced, caused to be commenced, or is 
                about to commence or cause to be commenced a 
                proceeding under this title;
                  (E) testified or is about to testify in any 
                such proceeding; or
                  (F) assisted or participated or is about to 
                assist or participate in any manner in such a 
                proceeding or in any other manner in such a 
                proceeding or in any other action to carry out 
                the purposes of this title.
          (2) Enforcement action.--Any employee covered by this 
        section who alleges discrimination by an employer in 
        violation of subsection (a) may bring an action 
        governed by the rules and procedures, legal burdens of 
        proof, and remedies applicable under subsections (c) 
        through (g) of section 20109 of title 49, United States 
        Code.

SEC. 2106. PENALTIES.

  (a) Civil Penalties.--
          (1) In general.--The Secretary may bring an action in 
        a United States district court against any owner or 
        operator of a chemical facility that violates or fails 
        to comply with--
                  (A) any order issued by the Secretary under 
                this title; or
                  (B) any site security plan approved by the 
                Secretary under this title.
          (2) Relief.--In any action under paragraph (1), a 
        court may issue an order for injunctive relief and may 
        award a civil penalty of not more than $50,000 for each 
        day on which a violation occurs or a failure to comply 
        continues.
  (b) Penalties for Unauthorized Disclosure.--Any officer or 
employee of a Federal, State, local, or tribal government 
agency who, in a manner or to an extent not authorized by law, 
knowingly discloses any record containing protected information 
described in section 2108(f) shall--
          (1) be imprisoned not more than 1 year, fined under 
        chapter 227 of title 18, United States Code, or both; 
        and
          (2) if an officer or employee of the Government, be 
        removed from Federal office or employment.
  (c) Treatment of Information in Adjudicative Proceedings.--In 
a proceeding under this title, information protected under 
section 2108, or related vulnerability or security information, 
shall be treated in any judicial or administrative action as if 
the information were classified material.

SEC. 2107. FEDERAL PREEMPTION.

  (a) In General.--Nothing in this title shall preclude or deny 
any right of any State or political subdivision thereof to 
adopt or enforce any regulation, requirement, or standard of 
performance with respect to chemical facility security to 
deter, detect, or respond to a chemical facility terrorist 
incident that is more stringent than a regulation, requirement, 
or standard of performance issued pursuant to this title, or 
shall otherwise impair any right or jurisdiction of any State 
or political subdivision thereof with respect to chemical 
facilities within that State or political subdivision thereof 
unless a direct conflict exists between this title and the 
regulation, requirement, or standard of performance issued by a 
State or political subdivision thereof.
  (b) Other Requirements.--Nothing in this title shall preclude 
or deny the right of any State or political subdivision thereof 
to adopt or enforce any regulation, requirement, or standard of 
performance relating to environmental protection, health, or 
safety.

SEC. 2108. PROTECTION OF INFORMATION.

  (a) Prohibition of Public Disclosure of Protected 
Information.--
          (1) In general.--The Secretary shall ensure that 
        protected information, as described in subsection (f), 
        is not disclosed except as provided in this title.
          (2) Specific prohibitions.--In carrying out paragraph 
        (1), the Secretary shall ensure that protected 
        information is not disclosed--
                  (A) by any Federal agency under section 552 
                of title 5, United States Code; or
                  (B) under any State or local law.
  (b) Regulations.--
          (1) In general.--In carrying out the requirements of 
        this title, the Secretary shall prescribe such 
        regulations, and may issue such orders, as necessary to 
        prohibit the unauthorized disclosure of protected 
        information, as described in subsection (f).
          (2) Requirements.--The regulations prescribed under 
        paragraph (1) shall--
                  (A) allow for information sharing, on a 
                confidential basis, with and between, Federal, 
                State, local, and tribal law enforcement 
                officials, and emergency response providers, 
                and appropriate supervisory and non-supervisory 
                chemical facility personnel, and employee 
                representatives, if any, with security, 
                operational, or fiduciary responsibility for 
                the facility;
                  (B) provide for the confidential use of 
                protected information in any administrative or 
                judicial proceeding, including placing under 
                seal any such information that is contained in 
                any filing, order, or other document used in 
                such proceedings that could otherwise become 
                part of the public record;
                  (C) limit access to protected information to 
                persons designated by the Secretary; and
                  (D) ensure, to the maximum extent 
                practicable, that--
                          (i) protected information shall be 
                        maintained in a secure location; and
                          (ii) access to protected information 
                        shall be limited as may be necessary 
                        to--
                                  (I) enable enforcement of 
                                this title; or
                                  (II) address an imminent and 
                                substantial threat to security 
                                or an imminent chemical 
                                facility terrorist incident.
  (c) Other Obligations Unaffected.--Nothing in this section 
affects any obligation of the owner or operator of a chemical 
facility to submit or make available information to facility 
employees, employee organizations, or a Federal, State, tribal, 
or local government agency under, or otherwise to comply with, 
any other law.
  (d) Submission of Information to Congress.--Nothing in this 
title shall be construed as authorizing the withholding of any 
information from Congress.
  (e) Disclosure of Independently Furnished Information.--
Nothing in this title shall be construed as affecting any 
authority or obligation of a Federal agency to disclose any 
record or information that the Federal agency obtains from a 
chemical facility under any other law.
  (f) Protected Information.--
          (1) In general.--For purposes of this section, 
        protected information includes the following:
                  (A) The criteria and data used by the 
                Secretary to assign chemical facilities to 
                risk-based tiers under section 2102 and the 
                tier to which each such facility is assigned.
                  (B) The security vulnerability assessments 
                and site security plans submitted to the 
                Secretary under this title.
                  (C) Information concerning the risk-based 
                chemical facility security performance 
                standards for a chemical facility under section 
                2103(c).
                  (D) Any other information generated or 
                collected by a Federal, State, local, or tribal 
                government agency or by a chemical facility for 
                the purpose of carrying out or complying with 
                this title--
                          (i) that describes any vulnerability 
                        of a chemical facility to an act of 
                        terrorism;
                          (ii) that describes the assignment of 
                        any chemical facility to a risk-based 
                        tier under this title; or
                          (iii) that describes any security 
                        measure (including any procedure, 
                        equipment, training, or exercise) for 
                        the protection of a chemical facility 
                        from an act of terrorism.
          (2) Exclusions.--For purposes of this section, 
        protected information does not include--
                  (A) information that is publicly available;
                  (B) information that a chemical facility has 
                disclosed other than in accordance with this 
                section; or
                  (C) information that, if disclosed, would not 
                be detrimental to the security of a chemical 
                facility.

SEC. 2109. CERTIFICATION BY THIRD-PARTY ENTITIES.

  (a) Certification by Third-Party Entities.--The Secretary may 
designate a third-party entity to carry out any function under 
subsection (e)(5) of section 2103, subsection (b), (c), or (d) 
of section 2104, or subsection (b)(1) of section 2105.
  (b) Qualifications.--The Secretary shall establish standards 
for the qualifications of third-party entities, including 
knowledge of physical infrastructure protection, cybersecurity, 
chemical facility security, hazard analysis, chemical process 
engineering, chemical process safety reviews, and other such 
factors that the Secretary determines to be necessary.
  (c) Procedures and Requirements for Private Entities.--Before 
designating a third-party entity to carry out a function under 
subsection (a), the Secretary shall--
          (1) develop, document, and update, as necessary, 
        minimum standard operating procedures and requirements 
        applicable to such entities designated under subsection 
        (a), including--
                  (A) conducting a 90-day independent review of 
                the procedures and requirements (or updates 
                thereto) and the results of the analyses of 
                such procedures (or updates thereto) pursuant 
                to subtitle G of title VIII; and
                  (B) upon completion of the independent review 
                under subparagraph (A), designating any 
                procedure or requirement (or any update 
                thereto) as a qualified anti-terrorism 
                technology pursuant to section 862(b);
          (2) conduct safety and hazard analyses of the 
        standard operating procedures and requirements 
        developed under paragraph (1);
          (3) conduct a review of the third-party entities' 
        business engagements to ensure that no conflict exists 
        that could compromise the execution of any functions 
        under subsection (e)(5) of section 2103, subsection 
        (b), (c), or (d) of section 2104, or subsection (c)(1) 
        of section 2105; and
          (4) conduct a review of the third-party entities' 
        business practices and disqualify any of these 
        organizations that offer related auditing or consulting 
        services to chemical facilities as private sector 
        vendors.
  (d) Ensuring Contracting with Certain Small Business 
Concerns.--
          (1) Requirements for prime contracts.--The Secretary 
        shall include in each contract awarded to a third-party 
        entity--
                  (A) a requirement that the third-party entity 
                develop and implement a plan for the award of 
                subcontracts, as appropriate, to small business 
                concerns and disadvantaged business concerns in 
                accordance with other applicable requirements, 
                including the terms of such plan, as 
                appropriate; and
                  (B) a requirement that the third-party entity 
                shall submit to the Secretary, during 
                performance of the contract, periodic reports 
                describing the extent to which the contractor 
                has complied with such plan, including 
                specification (by total dollar amount and by 
                percentage of the total dollar value of the 
                contract) of the value of subcontracts awarded 
                at all tiers of subcontracting to small 
                business concerns, including socially and 
                economically disadvantaged small businesses 
                concerns, small business concerns owned and 
                controlled by service-disabled veterans, 
                HUBZone small business concerns, small business 
                concerns eligible to be awarded contracts 
                pursuant to section 8(a) of the Small Business 
                Act (15 U.S.C. 637(a)), and historically black 
                colleges and universities and Hispanic-serving 
                institutions, tribal colleges and universities, 
                and other minority institutions.
          (2) Definitions.--For purposes of this subsection:
                  (A) The terms ``socially and economically 
                disadvantaged small businesses concern'', 
                ``small business concern owned and controlled 
                by service-disabled veterans'', and ``HUBZone 
                small business concern'' have the meaning given 
                such terms under the Small Business Act (15 
                U.S.C. 631 et seq.).
                  (B) The term ``historically black colleges 
                and universities'' means part B institutions 
                under title III of the Higher Education Act of 
                1965 (20 U.S.C. 1061).
                  (C) The term ``Hispanic-serving institution'' 
                has the meaning given such term under title V 
                of the Higher Education Act of 1965 (20 U.S.C. 
                1101a(a)(5)).
                  (D) The term ``tribal colleges and 
                universities'' has the meaning given such term 
                under the Tribally Controlled College or 
                University Assistance Act of 1978 (25 U.S.C. 
                1801 et seq.)).
          (3) Utilization of alliances.--The Secretary shall, 
        to the maximum extent practicable, seek to facilitate 
        the award of contracts to conduct certification under 
        subsection (a) to alliances of business concerns 
        referred to in paragraph (1)(B).
          (4) Annual report.--
                  (A) In general.--By not later than October 31 
                of each year, the Secretary shall submit to the 
                Committee on Homeland Security of the House of 
                Representatives and the Committee on Homeland 
                Security and Governmental Affairs of the Senate 
                a report on the award of contracts to conduct 
                certification under subsection (a) to business 
                concerns referred to in paragraph (1)(B) during 
                the fiscal year preceding the fiscal year in 
                which the report is submitted.
                  (B) Contents.--The Secretary shall include in 
                each report under subparagraph (A)--
                          (i) a specification of the value of 
                        such contracts, by dollar amount and as 
                        a percentage of the total dollar value 
                        of all contracts awarded by the 
                        Department in such fiscal year;
                          (ii) a specification of the total 
                        dollar value of such contracts awarded 
                        to each of the categories of business 
                        concerns referred to in paragraph 
                        (1)(B); and
                          (iii) if the percentage of the total 
                        dollar value of contracts awarded under 
                        this section specified under clause (i) 
                        is less than 25 percent, an explanation 
                        of--
                                  (I) why the percentage is 
                                less than 25 percent; and
                                  (II) what will be done to 
                                ensure that the percentage for 
                                the following fiscal year will 
                                not be less than 25 percent.
  (e) Technical Review and Approval.--Not later than 60 days 
after the date on which the results of the safety and hazard 
analysis of the standard operating procedures and requirements 
are completed under subsection (c)(2), the Secretary shall--
          (1) complete a technical review of the procedures and 
        requirements (or updates thereto) under sections 862(b) 
        and 863(d)(2); and
          (2) approve or disapprove such procedures and 
        requirements (or updates thereto).
  (f) Effect of Approval.--
          (1) Issuance of certificate of conformance.--In 
        accordance with section 863(d)(3), the Secretary shall 
        issue a certificate of conformance to a third-party 
        entity to perform a function under subsection (a) if 
        the entity--
                  (A) demonstrates to the satisfaction of the 
                Secretary the ability to perform functions in 
                accordance with standard operating procedures 
                and requirements (or updates thereto) approved 
                by the Secretary under this section;
                  (B) agrees to--
                          (i) perform such function in 
                        accordance with such standard operating 
                        procedures and requirements (or updates 
                        thereto); and
                          (ii) maintain liability insurance 
                        coverage at policy limits and in 
                        accordance with conditions to be 
                        established by the Secretary pursuant 
                        to section 864; and
                  (C) signs an agreement to protect the 
                proprietary and confidential information of any 
                chemical facility with respect to which the 
                entity will perform such function.
          (2) Litigation and risk management protections.--A 
        third-party entity that maintains liability insurance 
        coverage at policy limits and in accordance with 
        conditions to be established by the Secretary pursuant 
        to section 864 and receives a certificate of 
        conformance under paragraph (1) shall receive all 
        applicable litigation and risk management protections 
        under sections 863 and 864.
          (3) Reciprocal waiver of claims.--A reciprocal waiver 
        of claims shall be deemed to have been entered into 
        between a third-party entity that receives a 
        certificate of conformance under paragraph (1) and its 
        contractors, subcontractors, suppliers, vendors, 
        customers, and contractors and subcontractors of 
        customers involved in the use or operation of any 
        function performed by the third-party entity under 
        subparagraph (a).
          (4) Information for establishing limits of liability 
        insurance.--A third-party entity seeking a certificate 
        of conformance under paragraph (1) shall provide to the 
        Secretary necessary information for establishing the 
        limits of liability insurance required to be maintained 
        by the entity under section 864(a).
  (g) Monitoring.--The Secretary shall regularly monitor and 
inspect the operations of a third-party entity that performs a 
function under subsection (a) to ensure that the entity is 
meeting the minimum standard operating procedures and 
requirements established under subsection (c) and any other 
applicable requirement under this section.

SEC. 2110. METHODS TO REDUCE THE CONSEQUENCES OF A TERRORIST ATTACK.

  (a) Assessment Required.--The owner or operator of a covered 
chemical facility shall include in the site security plan 
conducted pursuant to section 2103, an assessment of methods to 
reduce the consequences of a terrorist attack on that chemical 
facility, including--
          (1) a description of the methods to reduce the 
        consequences of a terrorist attack assessed by the 
        covered chemical facility;
          (2) the degree to which each method to reduce the 
        consequences of a terrorist attack could, if applied, 
        reduce the potential extent of death, injury, or 
        serious adverse effects to human health resulting from 
        a terrorist release;
          (3) the technical viability, costs, avoided costs 
        (including liabilities), savings, and applicability of 
        applying each method to reduce the consequences of a 
        terrorist attack; and
          (4) any other information that the owner or operator 
        of the covered chemical facility considered in 
        conducting the assessment.
  (b) Implementation.--
          (1) Implementation.--The owner or operator of a 
        chemical facility assigned to a high-risk tier under 
        section 2102(c)(3) that is required to conduct an 
        assessment under subsection (a) shall implement methods 
        to reduce the consequences of a terrorist attack on the 
        chemical facility if the Secretary determines, based on 
        an assessment in subsection (a), that the 
        implementation of such methods at the facility--
                  (A) would significantly reduce the risk of 
                death, injury, or serious adverse effects to 
                human health resulting from a chemical facility 
                terrorist incident but would not increase the 
                interim storage of a substance of concern 
                outside the facility or directly result in the 
                creation of a new covered chemical facility 
                assigned to a high-risk tier under section 
                2102(c)(3) or the assignment of an existing 
                facility to a high-risk tier;
                  (B) can feasibly be incorporated into the 
                operation of the covered chemical facility; and
                  (C) would not significantly and demonstrably 
                impair the ability of the owner or operator of 
                the covered chemical facility to continue the 
                business of the facility at a location within 
                the United States.
          (2) Review of inability to comply.--
                  (A) In general.--An owner or operator of a 
                covered chemical facility who is unable to 
                comply with the Secretary's determination under 
                paragraph (1) shall, within 60 days of receipt 
                of the Secretary's determination, provide to 
                the Secretary a written explanation that 
                includes the reasons thereto.
                  (B) Review.--Not later than 60 days of 
                receipt of an explanation submitted under 
                subparagraph (A), the Secretary after 
                consulting with the owner or operator who 
                submitted such explanation, shall provide to 
                the owner or operator a written determination 
                of whether implementation shall be required 
                pursuant to paragraph (1). If the Secretary 
                determines that implementation is required, the 
                facility shall be required to begin 
                implementation within 180 days of that 
                determination.
  (c) Provision of Information on Alternative Approaches.--
          (1) In general.--The Secretary shall provide 
        information to chemical facilities on the use and 
        availability of methods to reduce the consequences of a 
        terrorist attack at a covered chemical facility to aid 
        a covered chemical facility in meeting the requirements 
        of subsection (a).
          (2) Information to be included.--The information 
        under paragraph (1) may include information about--
                  (A) general and specific types of such 
                methods;
                  (B) combinations of chemical sources, 
                substances of concern, and hazardous processes 
                or conditions for which such methods could be 
                appropriate;
                  (C) the availability of specific methods to 
                reduce the consequences of a terrorist attack;
                  (D) the costs and cost savings resulting from 
                the use of such methods;
                  (E) emerging technologies that could be 
                transferred from research models or prototypes 
                to practical applications;
                  (F) the availability of technical assistance 
                and best practices; and
                  (G) such other matters as the Secretary 
                determines is appropriate.
          (3) Collection of information.--The Secretary may 
        collect information necessary to fulfill the 
        requirements of paragraph (1)--
                  (A) from information obtained from owners or 
                operators of chemical facilities pursuant to 
                this title, including those who have registered 
                such facilities pursuant to part 68 of title 40 
                Code of Federal Regulations (or successor 
                regulations);
                  (B) from studies and reports published by 
                academic institutions, National Laboratories, 
                and other relevant and reputable public and 
                private sector experts; and
                  (C) through such other methods as the 
                Secretary deems appropriate.
          (4) Public availability.--Information made available 
        publicly under this subsection shall not identify any 
        specific chemical facility, violate the protection of 
        information provisions under section 2108, or disclose 
        any confidential or proprietary information.
  (d) Protected Information.--An assessment prepared under 
subsection (a) is protected information under section 2108(f).
  (e) Funding for Methods to Reduce the Consequences of a 
Terrorist Attack.--The Secretary shall make funds available to 
help defray the cost of implementing methods to reduce the 
consequences of a terrorist attack to covered chemical 
facilities that are required by the Secretary to implement such 
methods or that voluntarily choose to implement such methods. 
In making such funds available, the Secretary shall give 
special consideration to those facilities required by the 
Secretary to implement methods to reduce the consequences of a 
terrorist attack pursuant to subsection (b) and water and 
wastewater facilities administered by State, local, tribal, or 
municipal authorities that are subject to the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.) or section 1433 
of the Safe Drinking Water Act (42 U.S.C. 300i-2).
  (f) Publicly-Owned Water and Wastewater Treatment 
Facilities.--Notwithstanding any other provision of this title, 
the Secretary may not require a publicly-owned facility 
regulated under the Safe Drinking Water Act (42 U.S.C. 300i-2) 
or the Federal Water Pollution Control Act (33 U.S.C. 1251 et 
seq.) to implement methods to reduce the consequences of a 
terrorist attack under subsection (b) unless that facility 
receives funding under subsection (e).

SEC. 2111. APPLICABILITY.

  This title shall not apply to--
          (1) any chemical facility that is owned and operated 
        by the Secretary of Defense, the Attorney General, or 
        the Secretary of Energy;
          (2) the transportation in commerce, including 
        incidental storage, of any substance of concern 
        regulated as a hazardous material under chapter 51 of 
        title 49, United States Code; or
          (3) any chemical facility that is owned or operated 
        by a licensee or certificate holder of the Nuclear 
        Regulatory Commission.

SEC. 2112. SAVINGS CLAUSE.

  Nothing in this title shall affect or modify in any way any 
obligation or liability of any person under any other Federal 
law, including section 112 of the Clean Air Act (42 U.S.C. 
7412), the Federal Water Pollution Control Act (33 U.S.C. 1251 
et seq.), the Resource Conservation and Recovery Act of 1976 
(42 U.S.C. 6901 et seq.), the National Environmental Policy Act 
of 1969 (42 U.S.C. 4321 et seq.), the Occupational Safety and 
Health Act (29 U.S.C. 651 et seq.), the National Labor 
Relations Act (29 U.S.C. 151 et seq.), the Emergency Planning 
and Community Right to Know Act of 1996 (42 U.S.C. 11001 et 
seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), 
the Maritime Transportation Security Act of 2002 (Pubic Law 
107-295), and the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
seq.).

SEC. 2113. OFFICE OF CHEMICAL FACILITY SECURITY.

  (a) In General.--There is in the Department an Office of 
Chemical Facility Security, headed by a Director, who shall be 
a member of the Senior Executive Service in accordance with 
subchapter VI of chapter 33 of title 5, United States Code, 
under section 5382 of that title, and who shall be responsible 
for carrying out the responsibilities of the Secretary under 
this title.
  (b) Professional Qualifications.--The individual selected by 
the Secretary as the Director Office of Chemical Facility 
Security should have a demonstrated knowledge of physical 
infrastructure protection, cybersecurity, chemical facility 
security, hazard analysis, chemical process engineering, 
chemical process safety reviews, and other such factors that 
the Secretary determines to be necessary.
  (c) Selection Process.--The Secretary shall make a reasonable 
effort to select an individual to serve as the Director from 
among a group of candidates that is diverse with respect to 
race, ethnicity, age, gender, and disability characteristics 
and submit to the Committee on Homeland Security of the House 
of Representatives and the Committee on Homeland Security and 
Governmental Affairs of the Senate information on the selection 
process, including details on efforts to assure diversity among 
the candidates considered for this position.

SEC. 2114. SECURITY BACKGROUND CHECKS OF COVERED INDIVIDUALS AT CERTAIN 
                    CHEMICAL FACILITIES.

  (a) Regulations Issued by the Secretary.--
          (1) In general.--The Secretary shall issue 
        regulations to require a covered chemical facility 
        assigned to a high-risk tier under section 2102(c)(3) 
        to subject covered individuals who have access to 
        restricted areas or critical assets or who are 
        determined to require security background checks under 
        risk-based guidance to security background checks based 
        on risk-based guidance. Such regulations shall set 
        forth--
                  (A) the scope of the security background 
                checks, including the types of disqualifying 
                offenses and the time period covered for each 
                covered individual;
                  (B) the processes to conduct the security 
                background checks;
                  (C) the necessary biographical information 
                and other data required in order to conduct the 
                security background checks; and
                  (D) a redress process for adversely-affected 
                covered individuals consistent with subsections 
                (b) and (c).
          (2) Enforcement.--If the owner or operator of a 
        covered chemical facility that is subject to paragraph 
        (1) fails to comply with the requirements of that 
        paragraph, the Secretary may issue a penalty against 
        the owner or operator in accordance with section 2106.
          (3) Requirement for redress process.--If a covered 
        chemical facility performs a security background check 
        on a covered individual to comply with regulations 
        issued by the Secretary under paragraph (1), the 
        Secretary shall not consider the facility in compliance 
        unless an adequate redress process as described in 
        subsection (c) is provided to covered individuals.
  (b) Requirements.--Upon issuance of a final regulation under 
subsection (a), or any future rule, regulation, directive or 
guidance, by the Secretary regarding a security background 
check of a covered individual, the Secretary shall prohibit the 
covered chemical facility from making an adverse employment 
decision, including removal or suspension of the employee, due 
to such rule, regulation, directive, or guidance with respect 
to a covered individual unless the covered individual--
          (1) has been convicted of, has been found not guilty 
        of by reason of insanity of, or is under want, warrant, 
        or indictment for a permanent disqualifying criminal 
        offense listed in part 1572 of title 49, Code of 
        Federal Regulations;
          (2) was convicted of or found not guilty by reason of 
        insanity of an interim disqualifying criminal offense 
        listed in part 1572 of title 49, Code of Federal 
        Regulations, within 7 years of the date on which the 
        chemical facility performs the security background 
        check;
          (3) was incarcerated for an interim disqualifying 
        criminal offense listed in part 1572 of title 49, Code 
        of Federal Regulations, and released from incarceration 
        within 5 years of the date that the chemical facility 
        performs the security background check;
          (4) is determined, as a result of the security 
        background check, to be a known terrorist or to have 
        terrorist ties; or
          (5) is determined, as a result of the security 
        background check, not to be legally authorized to work 
        in the United States.
  (c) Redress Process.--Upon the issuance of a final regulation 
under subsection (a), or any future rule, regulation, 
directive, or guidance, requiring a covered chemical facility 
to perform a security background check of a covered individual, 
the Secretary shall--
          (1) require an adequate redress process for a covered 
        individual subjected to an adverse employment decision, 
        including removal or suspension of the employee, due to 
        such rule, regulation, directive, or guidance that is 
        consistent with the appeals and waiver processes 
        established for applicants for commercial motor vehicle 
        hazardous materials endorsements and transportation 
        workers at ports, as required by section 70105(c) of 
        title 46, United States Code, including all rights to 
        hearings before an administration law judge, scope of 
        review, a review of an unclassified summary of 
        classified evidence equivalent to the summary provided 
        in part 1515 of title 49, Code of Federal Regulations, 
        and procedures for new evidence for both appeals and 
        waiver decisions;
          (2) have the authority to order an appropriate 
        remedy, including reinstatement of the covered 
        individual, should the Secretary determine that a 
        covered chemical facility wrongfully made an adverse 
        employment decision regarding a covered individual 
        pursuant to such rule, regulation, directive, or 
        guidance;
          (3) ensure that the redress process required under 
        this subsection affords to the covered individual a 
        full disclosure of any public-record event covered by 
        subsection (b) that provides the basis for an adverse 
        employment decision; and
          (4) ensure that covered individual receives the 
        individual's full wages and benefits until all appeals 
        and waiver procedures are exhausted.
  (d) False Statements.--
          (1) In general.--A covered chemical facility may not 
        knowingly misrepresent to an employee or other relevant 
        person, including an arbiter involved in a labor 
        arbitration, the scope, application, or meaning of any 
        rules, regulations, directives, or guidance issued by 
        the Secretary related to security background check 
        requirements for covered individuals when conducting a 
        security background check under this section.
          (2) Deadline for regulations.--Not later than 1 year 
        after the date of enactment of the Chemical Facility 
        Anti-Terrorism Act of 2008, the Secretary shall issue a 
        regulation that prohibits a covered chemical facility 
        from knowingly misrepresenting to an employee or other 
        relevant person, including an arbiter involved in a 
        labor arbitration, the scope, application, or meaning 
        of any rules, regulations, directives, or guidance 
        issued by the Secretary related to security background 
        check requirements for covered individuals when 
        conducting a security background check.
  (e) Restrictions on Use and Maintenance of Information.--
Information obtained under this section by the Secretary or a 
covered chemical facility that is an employer of a covered 
individual shall be handled as follows:
          (1) Such information may not be made available to the 
        public.
          (2) Such information may not be accessed by employees 
        of the facility except for such employees who are 
        directly involved with collecting the information or 
        conducting or evaluating security background checks.
          (3) Such information shall be maintained 
        confidentially by facility and the Secretary and may be 
        used only for making determinations under this section.
          (4) The Secretary may share such information with 
        other Federal law enforcement agencies.
  (f) Rights and Responsibilities.--Nothing in the section 
shall be construed to abridge any right or responsibility of a 
covered individual or covered chemical facility under any other 
Federal, State, local, or tribal law or collective bargaining 
agreement.
  (g) No Preemption of Federal or State Law.--Nothing in this 
section shall be construed to preempt a Federal, State, local, 
or tribal law that requires criminal history background checks, 
checks on the authorization of an individual to work in the 
United States, or other background checks of covered 
individuals.
  (h) Definition of Security Background Check.--The term 
``security background check'' means a review at no cost to any 
covered individual of the following for the purpose of 
identifying individuals who may pose a threat to chemical 
facility security, to national security, or of terrorism.
          (1) Relevant databases to verify and validate 
        identity.
          (2) Relevant criminal history databases.
          (3) In the case of an alien (as defined in section 
        101 of the Immigration and Nationality Act (8 U.S.C. 
        1101(a)(3))), the relevant data bases to determine the 
        status of the alien under the immigration laws of the 
        United States.
          (4) Relevant databases to identify terrorists or 
        people with known ties to terrorists.
          (5) Other relevant information or data bases, as 
        determined by the Secretary.
  (i) Included Individuals.--The Secretary shall require any 
individual at a covered chemical facility or associated with a 
covered chemical facility who is provided a copy of a security 
vulnerability assessment or site security plan to be subjected 
to a security background check.
  (j) Savings Clause.--Nothing in this section shall be 
construed as creating any new right or modifying any existing 
right of an individual to appeal a determination by the 
Secretary as a result of a check against a terrorist watch 
list.

SEC. 2115. NATIONAL CHEMICAL SECURITY CENTER OF EXCELLENCE.

  (a) Establishment.--
          (1) In general.--The Secretary shall establish a 
        National Chemical Security Center of Excellence to 
        conduct research and education and to develop 
        technologies to lower the overall risk of terrorist 
        chemical attack, including technologies or practices to 
        decrease threats, vulnerabilities, and consequences in 
        order to ensure the security of chemical facilities.
          (2) Additional requirements.--In establishing the 
        National Chemical Security Center of Excellence under 
        paragraph (1), or in reorganizing any other chemical, 
        biological, or agricultural Center of Excellence 
        established before the date of enactment of the 
        Chemical Facility Anti-Terrorism Act of 2008, the 
        Secretary shall--
                  (A) recognize the unique scientific, 
                technical, and funding requirements of the 
                chemical, biological, and agricultural fields 
                with respect to the mission of the Department 
                of Homeland Security; and
                  (B) maintain the National Chemical Security 
                Center of Excellence and any such other 
                chemical, biological, or agricultural Center of 
                Excellence as a distinct entity with respect to 
                organization and funding.
  (b) Designation of Lead Institution.--The Secretary shall 
select at least one of the institutions identified in 
subsection (c) as the lead institution responsible for 
coordinating the National Chemical Security Center of 
Excellence. Any member institution that is part of the 
consortium under subsection (c) may serve as a lead institution 
for the Center.
  (c) Member Institutions; Consortium.--
          (1) Consortium.--The lead institution selected under 
        subsection (b) shall execute agreements with the other 
        institutions of higher education identified in this 
        subsection and other institutions designated by the 
        Secretary to develop a consortium to assist in 
        accomplishing the goals of the Center.
          (2) Members.--The National Chemical Security Center 
        of Excellence shall consist of at least three 
        institutions of higher education with current expertise 
        or the capability to produce appropriate expertise, 
        including--
                  (A) one historically black college or 
                university; and
                  (B) one Hispanic-serving institution.
          (3) Inclusions.--The Secretary shall ensure that an 
        appropriate number of any additional partner colleges 
        or universities designated by the Secretary under this 
        subsection are historically black colleges and 
        universities, Hispanic-serving institutions, and tribal 
        colleges and universities.
          (4) Definitions.--For the purposes of this 
        subsection, the terms ``historically black colleges and 
        universities'', ``Hispanic-serving institutions'', and 
        ``tribal colleges and universities'' have the meanings 
        given such terms under section 2109(d)(2).

SEC. 2116. AUTHORIZATION OF APPROPRIATIONS.

  There is authorized to be appropriated to the Secretary of 
Homeland Security to carry out this title--
          (1) $325,000,000 for fiscal year 2010, of which 
        $100,000,000 shall be made available to provide funding 
        for methods to reduce the consequences of a terrorist 
        attack pursuant to section 2110(e);
          (2) $300,000,000 for fiscal year 2011, of which 
        $75,000,000 shall be made available to provide funding 
        for methods to reduce the consequences of a terrorist 
        attack pursuant to section 2110(e); and
          (3) $275,000,000 for fiscal year 2012, of which 
        $50,000,000 shall be made available to provide funding 
        for methods to reduce the consequences of a terrorist 
        attack pursuant to section 2110(e).
                              ----------                              

SECTION 550 OF THE DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 
                                  2007

  [Sec. 550. (a) No later than six months after the date of 
enactment of this Act, the Secretary of Homeland Security shall 
issue interim final regulations establishing risk-based 
performance standards for security of chemical facilities and 
requiring vulnerability assessments and the development and 
implementation of site security plans for chemical facilities: 
Provided, That such regulations shall apply to chemical 
facilities that, in the discretion of the Secretary, present 
high levels of security risk: Provided further, That such 
regulations shall permit each such facility, in developing and 
implementing site security plans, to select layered security 
measures that, in combination, appropriately address the 
vulnerability assessment and the risk-based performance 
standards for security for the facility: Provided further, That 
the Secretary may not disapprove a site security plan submitted 
under this section based on the presence or absence of a 
particular security measure, but the Secretary may disapprove a 
site security plan if the plan fails to satisfy the risk-based 
performance standards established by this section: Provided 
further, That the Secretary may approve alternative security 
programs established by private sector entities, Federal, 
State, or local authorities, or other applicable laws if the 
Secretary determines that the requirements of such programs 
meet the requirements of this section and the interim 
regulations: Provided further, That the Secretary shall review 
and approve each vulnerability assessment and site security 
plan required under this section: Provided further, That the 
Secretary shall not apply regulations issued pursuant to this 
section to facilities regulated pursuant to the Maritime 
Transportation Security Act of 2002, Public Law 107-295, as 
amended; Public Water Systems, as defined by section 1401 of 
the Safe Drinking Water Act, Public Law 93-523, as amended; 
Treatment Works as defined in section 212 of the Federal Water 
Pollution Control Act, Public Law 92-500, as amended; any 
facility owned or operated by the Department of Defense or the 
Department of Energy, or any facility subject to regulation by 
the Nuclear Regulatory Commission.
  [(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 three years after the date of enactment 
of this Act.
  [(c) Notwithstanding any other provision of law and 
subsection (b), information developed under this section, 
including vulnerability assessments, site security plans, and 
other security related information, records, and documents 
shall be given protections from public disclosure consistent 
with similar information developed by chemical facilities 
subject to regulation under section 70103 of title 46, United 
States Code: Provided, That this subsection does not prohibit 
the sharing of such information, as the Secretary deems 
appropriate, with State and local government officials 
possessing the necessary security clearances, including law 
enforcement officials and first responders, for the purpose of 
carrying out this section, provided that such information may 
not be disclosed pursuant to any State or local law: Provided 
further, That in any proceeding to enforce this section, 
vulnerability assessments, site security plans, and other 
information submitted to or obtained by the Secretary under 
this section, and related vulnerability or security 
information, shall be treated as if the information were 
classified material.
  [(d) Any person who violates an order issued under this 
section shall be liable for a civil penalty under section 
70119(a) of title 46, United States Code: Provided, That 
nothing in this section confers upon any person except the 
Secretary a right of action against an owner or operator of a 
chemical facility to enforce any provision of this section.
  [(e) The Secretary of Homeland Security shall audit and 
inspect chemical facilities for the purposes of determining 
compliance with the regulations issued pursuant to this 
section.
  [(f) Nothing in this section shall be construed to supersede, 
amend, alter, or affect any Federal law that regulates the 
manufacture, distribution in commerce, use, sale, other 
treatment, or disposal of chemical substances or mixtures.
  [(g) If the Secretary determines that a chemical facility is 
not in compliance with this section, the Secretary shall 
provide the owner or operator with written notification 
(including a clear explanation of deficiencies in the 
vulnerability assessment and site security plan) and 
opportunity for consultation, and issue an order to comply by 
such date as the Secretary determines to be appropriate under 
the circumstances: Provided, That if the owner or operator 
continues to be in noncompliance, the Secretary may issue an 
order for the facility to cease operation, until the owner or 
operator complies with the order.
  [(h) This section shall not preclude or deny any right of any 
State or political subdivision thereof to adopt or enforce any 
regulation, requirement, or standard of performance with 
respect to chemical facility security that is more stringent 
than a regulation, requirement, or standard of performance 
issued under this section, or otherwise impair any right or 
jurisdiction of any State with respect to chemical facilities 
within that State, unless there is an actual conflict between 
this section and the law of that State.]

           *       *       *       *       *       *       *

               Minority, Additional, and Dissenting Views

                             minority views

    Introduction
    Securing our Nation's chemical facilities has long been a 
priority for the Committee on Homeland Security (Committee). 
During the 109th Congress, the Committee worked on a bipartisan 
basis to develop comprehensive chemical facility security 
legislation (H.R. 5695). This legislation, which was adopted by 
the Committee by a vote of 16-2, was never considered by the 
House, but became the basis for section 550 of the Department 
of Homeland Security (DHS) Appropriations Act, 2007 (Public Law 
109-295). Section 550 gave the Department historic authority to 
regulate the security of high-risk chemical facilities. 
Recognizing the importance of these facilities and the threat 
facing them, section 550 included aggressive timelines and 
serious penalties for non-compliance. However, section 550 also 
included a three year sunset clause, ensuring Congress would 
need to revisit the issue prior to October 2009. The DHS 
Appropriations Act was signed into law on October 4, 2006, and 
two months later DHS issued an advanced notice of proposed 
rulemaking, exercising the new authority.
    After receiving thousands of comments, DHS finalized the 
Chemical Facility Anti-Terrorism Standards (CFATS), which 
became effective on June 8, 2007. Appendix A, the list of 
chemicals of interest that trigger the initial requirement to 
submit information to DHS, remained open for comment for an 
additional 30 days. After receiving over 4,000 additional 
comments, DHS finalized Appendix A on November 20, 2007. 
Facilities which have more than the screening threshold of a 
chemical of interest had 60 days to submit initial information 
to DHS through the ``Top-Screen.'' The ``Top-Screen'' provides 
baseline data to DHS which allows the Secretary to determine 
whether the facility will be further regulated. As of the 
deadline of January 22, 2008, over 25,000 facilities submitted 
information, with thousands of others seeking extensions. DHS 
is in the process of reviewing this information and notifying 
owners of next steps required. By the end of the year, hundreds 
of tier I facilities - those chemical facilities which present 
the highest risk - will have completed a security vulnerability 
assessment and site security plan, and DHS will be in the 
process of inspecting and verifying compliance with 
implementation.
    It is against this backdrop that the Committee considered 
legislation to permanently enact the CFATS regulations. 
Although the bill in some places takes into consideration the 
current regulations, we remain concerned that significant 
changes elsewhere in the bill would force DHS to rewrite the 
current regulations. Such a result, Departmental witnesses have 
testified, would put the current program on hold while the new 
regulations were promulgated. Given the urgency with which 
Congress acted in 2006 giving the Department this authority, we 
do not believe that it is now timely to alter the program 
significantly before it is fully implemented and further delay 
meaningful chemical facility security. Even what may be 
considered simple changes to requirements for security 
vulnerability assessments or site security plans could require 
a comprehensive change in the current tools being developed by 
the Department to implement the regulations.
    For example, the current regulations require that a 
security vulnerability assessment assess ``hazards and 
consequences of concern for the facility.'' However, the bill 
requires that facilities assess ``any hazard'' that could 
result from a terrorist incident. Interpreted strictly, a 
facility would have to consider all possible down-stream 
effects and potential liabilities of any terrorist attack 
scenario - no matter how implausible. This would require a 
major change in the structure of the vulnerability assessment 
tool and the subsequent site security plans (which are required 
by the bill to address the vulnerabilities identified in the 
assessment). To clarify this, Representative Mark Souder 
offered an amendment that would require the consideration of 
hazards ``to the extent feasible'' as opposed to just ``any 
hazard.'' This would have been more consistent with the current 
regulatory language, while still requiring that hazards be 
identified by the facility. Rather than exposing a well-meaning 
chemical facility to possible penalties for inadvertently 
violating the ``any hazard'' requirement, this amendment would 
have recognized the pragmatic limitations of such language. 
Unfortunately, the Majority rejected this opportunity.Other 
requirements in the bill would have similar effects of halting 
the on-going progress of the Department and chemical 
facilities. In particular, requiring consideration and possible 
implementation of ``inherently safer technology'' (IST), would 
make current site security plans developed insufficient and any 
implemented security measures inadequate.
    Inherently Safer Technology
    Section 550 of the DHS Appropriations Act, 2007, 
specifically prohibited the Department from requiring 
particular security measures. The goal was to provide a 
flexible regulatory approach, where the security performance of 
the facility was regulated, while the facility could choose 
which security measures met the performance standards. This 
recognized the variety of facilities that might be covered by 
the regulations, from small ``mom and pop'' facilities, to 
agricultural operations, to large international corporations, 
to oil and natural gas refineries. Departing from this 
performance-based approach, the bill includes provisions 
mandating consideration of ``inherently safer technology'' and 
in some cases allows the Secretary to mandate implementation.
    Section 2110 of the bill includes a requirement that all 
``covered chemical facilities'' consider the implementation of 
``methods to reduce the consequences of a terrorist attack.'' 
As defined in the bill, a ``covered chemical facility'' is any 
facility that the Secretary determines is of sufficient risk 
based on the potential threat, the potential consequences, and 
the facility's proximity to population centers (section 
2102(c)). The Secretary bases this determination on information 
submitted regarding substances of concern that are ``used, 
stored, manufactured, processed or distributed'' at the 
facility. The Department has estimated that under this bill, 
``covered chemical facilities'' could include upwards of 10,000 
facilities. This definition could include a wide range of 
facilities at the Secretary's discretion - all of which would 
be required to consider the implementation of ``methods to 
reduce consequences of a terrorist attack.''
    These ``methods'' are defined broadly to include ``input 
substitution'', ``process redesign'', ``technology 
modification'', and ``use of less hazardous substances.'' These 
terms are common descriptions used for ``inherently safer 
technology.'' As the definition implies, IST is not a 
technology, it is a mindset that is incorporated at every stage 
of the facility's operations. The Department has stated that 
there is no good, agreed upon, definition for IST, and 
regulating such a concept would be difficult at the very least, 
and probably impossible to do objectively.
    Under this section each of at least 10,000 facilities, 
possibly more, would be required to consider 12, broad, 
detailed, process changes or substitutions, and justify the 
consideration of each to the Secretary, regardless of its level 
of risk. The justification to the Secretary, for each method 
considered, must include the degree to which the method can 
reduce the consequences of a terrorist attack; any costs or 
savings from applying each method; and ``any other 
information'' considered during the assessment. Although the 
Majority states that this assessment will not place a burden on 
smaller facilities, it is hard to see how it could not. In 
fact, the Majority's witness at the February 26 hearing on the 
Committee print testified that the requirement that companies 
put into writing and justify certain processes over others, is 
a subjective and burdensome exercise in ``paperwork.''
    The Majority rejected an amendment offered by 
Representative Dan Lungren that would only require 
consideration of IST by facilities in the high-risk tier, not 
by all ``covered chemical facilities.'' This amendment not only 
would have been more consistent with the risk-based approach 
that this Committee has urged the Department to follow, but 
also would have been consistent with a bipartisan agreement 
reached in the 109th Congress during consideration of H.R. 5695 
on the same issue. Rather than require all covered chemical 
facilities justify in writing to the Department their 
consideration of IST, Representative Lungren's amendment would 
focus on those facilities that present the highest risk. The 
blanket provision retained by the Majority by rejecting this 
amendment may result in hours of lost work and thousands of 
dollars spent on meeting the requirements for little or no 
security benefit.
    This amendment would also be more consistent with the 
current regulations, which allow States to implement non-
conflicting regulations. The bill maintains this ``actual 
conflict'' preemption standard, under which states (such as New 
Jersey) would be able to implement their own requirements for 
IST consideration, if they consider it appropriate. The Federal 
regime, however, would remain risk-based, targeting limited 
resources at the facilities that pose the greatest risk. In 
rejecting this amendment, the Majority missed an opportunity to 
significantly improve this bill and build a bipartisan 
coalition of support.
    Section 2110 also provides the Secretary the authority to 
require a chemical facility implement IST, if certain factors 
are met. Before requiring implementation, the Secretary must 
find that IST would ``significantly reduce'' the consequences 
of a terrorist attack; would not result in moving a facility to 
the highest risk tier; can ``feasibly be incorporated''; and 
would not ``significantly and demonstrably impair the ability 
of the owner to continue the business of the facility.'' An 
amendment by Representative Charles Dent, accepted by the 
Majority, added to this last factor that the facility must be 
able to continue business ``at a location within the United 
States.'' We are pleased that this language was accepted, 
ensuring that an IST mandate would not close down U.S. 
facilities and push them overseas by making them less 
competitive.
    However, an amendment offered by Representative Mark Souder 
was rejected by the Majority that would have improved this 
section further. Representative Souder's amendment would 
require the Secretary to also determine that there are no 
security measures that can be implemented that would adequately 
secure the facility. The result is that the Secretary could 
only mandate IST as a last resort, when no other security 
measures are sufficient. The goal of the legislation is to 
provide for the security of chemical facilities. As such, 
facilities should be given every opportunity to adequately 
secure their facilities through traditional means, before the 
Secretary can mandate that certain chemicals not be used or 
certain processes be changed. This amendment would not have 
reduced the overall level of security at the facility, and 
would be consistent with the bill's supposed emphasis on 
security. Instead, by rejecting Representative Souder's 
amendment, the Majority leaves open the possibility that the 
Secretary can require a costly change in chemicals, even if 
traditional security measures would have resulted in equal 
levels of security.
    Finally, in an effort to address the potential impact of 
this requirement on the Nation's ability to provide for the 
National defense, Representative Souder offered an amendment 
that would have provided an exemption from the IST mandate for 
defense industrial base facilities. This amendment recognizes 
that the defense industrial base includes chemical facilities 
that supply the Armed Forces with munitions, weapons, and fuel. 
While these facilities should be required to protect their 
facilities through implementing a site security plan, the 
Secretary should not be able to mandate certain chemicals not 
be used. Given the ongoing Global War on Terrorism, facilities 
must have the flexibility to use the most appropriate chemicals 
necessary without unnecessary interference. Unfortunately, the 
Majority rejected this opportunity to recognize the unique role 
these facilities have in defending the Nation.
    Security Background Checks
    We are pleased that the bill includes provisions originally 
offered by Representative Ginny Brown-Waite during Subcommittee 
consideration of the bill regarding screening employees of 
high-risk chemical facilities against the terrorist watch list 
and immigration status databases. This language is intended to 
provide the Secretary with the authority to receive necessary 
information to screen employees at high risk chemical 
facilities against the terrorist watch list. This authority is 
similar to authority exercised by the Secretary with regards to 
individuals who hold commercial driver licenses, rail and 
public transportation workers, and maritime workers. We 
recognize that the Secretary may not provide information to 
employers regarding the outcome of the check, depending on the 
classified nature of the database.
    The bill creates an appeal and waivers process for security 
background checks ``consistent'' with that provided for 
applicants under the Transportation Worker Identification 
Credential (TWIC). That language is intended to extend in scope 
only to the immigration status check and the criminal history 
check - not the check of the terrorist watch list. That intent 
is consistent with the current scope of the TWIC program. To 
clarify that intent, the bill includes an amendment offered by 
Representative Paul Broun that clarifies that no new rights are 
created, nor are any existing rights modified, as they pertain 
to an individual's ability to appeal a determination of the 
Secretary as a result of a check against the terrorist watch 
list. Information in the terrorist watch list database is 
highly classified, and no agency currently informs individuals 
if their names flag against a watch list, nor are they provided 
with an opportunity to appeal. DHS must have the discretion to 
work with law enforcement to respond appropriately if a name 
matches the watch list.
                                   Peter T. King
                                   Lamar Smith
                                   Mark E. Souder
                                   Tom Davis
                                   Daniel E. Lungren
                                   Mike Rogers
                                   Michael T. McCaul
                                   Ginny Brown-Waite
                                   Gus Bilirakis
                                   David Davis
                                   Paul C. Broun

               additional dissenting views of mike rogers

    Non-Toxic Fuel Exemption
    The foal of the chemical security legislation is to create 
more secure chemical facilities. Section 2110, however, which 
requires consideration and possibly implementation of 
inherently safer technology, does not exempt users of non-toxic 
fuels. Unintended consequences of this provision may include 
severe financial losses and closure for some operations, 
disruption of business, and the ironically potential for 
increased chemical accidents.
    With the bill's current language, propane users would have 
to use and store less propane, or eliminate it altogether. Fuel 
switching will not necessarily increase security, as propane, a 
commonly-used fuel, is already among the safest, cleanest, and 
least toxic forms of energy available. Because the bill would 
require propane users to maintain smaller supplies on their 
premises, transport of propane to these facilities would 
increase. Thus, in an effort to make facilities safer, the 
liability has simply been shifted to the Nation's roads and 
rails. A supply bottleneck might also result, particularly in 
the winter months when demand for fuel is high, and supply is 
slowed by inclement weather. American agricultural and other 
business operations may be negatively impacted in these cases.
    The final version of this bill should contain an exemption 
for a discreet subset of facilities, specifically, those that 
sell or use non-toxic fuels for the purposes of heating, 
cooking, agriculture, or motor fuel. This would enable users 
and producers of relatively safe fuels like propane to continue 
business operations that directly affect the livelihoods of 
many thousands of people, and indirectly impact the entire 
Nation's economic vitality.
                                   Mike Rogers

          additional and dissenting views of michael t. mccaul

    Depleted Hydrocarbon Sub-Surface Geologic Formations
        Insert at the appropriate place _
          SEC. 2101. DEFINITIONS of the Committee print defines 
        the term `chemical facility' to include any ``(A) at 
        which a chemical is or may be used, stored, 
        manufactured, processed or distributed''. This broad 
        definition of a chemical facility would include 
        depleted hydrocarbon sub-surface geologic formations, 
        salt water aquifers and salt domes.
    The vast majority of working natural gas storage, 86% in 
fact, is in depleted hydrocarbon sub-surface geologic 
formations. These are depleted oil and natural gas fields. 
These formations are reachable only through surface facilities 
The surface facilitates and equipment used to pump natural gas 
back into the sub-surface formation is the same surface 
facilities and equipment used to produce natural gas in the 
first place. When underground stored natural gas is retrieved 
it is ``produced'' a second time. If a sub-surface geologic 
formation used to store gas is considered a ``chemical 
facility'' then active oil and natural gas fields are 
``chemical facilities'' too. The committee print does not 
currently seek to regulate oil and natural gas fields as 
chemical facilities when they are in production, but when they 
are used to store natural gas they become regulated.
    Surface facilities (pumps, injectors, compressors, 
auxiliary tanks, Engine water coolers, etc) are regulated by 
the Department of Transportation through the Pipeline and 
Hazardous Materials Safety Administration (PHMSA) for safety. 
Under 49 CFR 192.903, PHMSA regulates these facilities for safe 
operation in proximity to populations areas (called high 
consequences areas (HCA)) using the consequence methodology in 
this regulation. The potential impact radius of an event in one 
of these facilities is among the detailed, existing aspects of 
PHMSA regulations produced under the Integrity Management Plan 
rulemaking in 2003.
    The Transportation Security Administration regulates the 
same surface facilities, through which access to sub-surface 
geologic formations is obtained, for security purposes. TSA 
entered into a MOU with PHMSA in 2006. This MOU constitutes a 
security annex to the umbrella MOA that is in force between the 
Department of Homeland Security and the Department of 
Transportation. The Annex establishes the shared and 
cooperative framework through which TSA and PHMSA discharge 
their obligations under the law for security and respectively 
safety for these surface facilities.
    TSA has previously reviewed the security assessments 
prepared after September 11th for these surface facilities and 
determined the security measures put in place by facility 
owners/operators were satisfactory. TSA retains jurisdiction 
over these surface facilities for security and has the 
authority to increase security where it deems necessary and 
appropriate under current law.
    States in which sub-surface geologic formation storage 
occurs for natural gas regulated the surface facilities' 
injection techniques and standards for safe and secure process. 
Effective Dates for selected examples of State Regulations for 
Hydrocarbons Storage Caverns: Alabama Alabama State Oil and Gas 
Board 400-6 (Gas) May 16, 2000; Kansas Kansas Administrative 
Regulation 28-45 (Liquids and Gas 1984; Louisiana State Wide 
Order 29-M (Liquids and Gas) July 20, 1977; Mississippi 
Mississippi State Oil & Gas Board Rule 64 (Liquids and Gas) 
February 19, 1992; New York 6 NYCRR, Part 559 (Liquids and Gas) 
In Draft; Texas Railroad Commission Rules No. 95 (Liquids) and 
No. 97 (Gas) January 1, 1994
    The Minority considers sub-surface geologic formations, 
salt water aquifers and salt domes to be adequately regulated 
under current law by PHMSA, TSA and the states. Applying an 
additional layer of federal regulation that is redundant within 
even the Department of Homeland Security does not serve to 
improve Homeland Security.
    An additional later of redundant regulation will also harm 
our economy on this case.
    The United States currently suffers from too little sub-
surface geologic formation natural gas storage capacity. The 
House Commerce Committee, among other notable entities that 
include economists and natural gas market analysts, considers 
the current lack of additional storage a significant factor in 
concern over future shortfalls in supply that will negatively 
impact our economy. States that have both high-demand 
concentrations for natural gas for both industry and non-
commercial use are particularly vulnerable to the consequences 
of growing likelihood of supply shortfalls from a lack of 
storage capacity.
                                   Michael T. McCaul

                                  
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