U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

89–010 

" ! SENATE 115TH CONGRESS

2d Session 

REPORT

2018

115–384 

Calendar No. 670 

PROTECTING AND SECURING CHEMICAL 

FACILITIES FROM TERRORIST ATTACKS ACT 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

S. 3405 

TO REAUTHORIZE THE CHEMICAL FACILITY ANTI-TERRORISM 

STANDARDS PROGRAM OF THE DEPARTMENT OF HOMELAND 

SECURITY 

NOVEMBER 26, 2018.—Ordered to be printed 


E:\Seals\Congress.#13
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

DOUG JONES, Alabama 

CHRISTOPHER R. HIXON, Staff Director 

GABRIELLE D’ADAMO SINGER, Chief Counsel 

COLLEEN E. BERNY, Professional Staff Member 

MARGARET E. DAUM, Minority Staff Director 

CHARLES A. MOSKOWITZ, Minority Senior Legislative Counsel 

JULIE G. KLEIN, Minority Professional Staff Member 

LAURA W. KILBRIDE, Chief Clerk 

Calendar No. 670 

115TH CONGRESS REPORT " ! SENATE 2d Session 115–384 

PROTECTING AND SECURING CHEMICAL FACILITIES 

FROM TERRORIST ATTACKS ACT 

NOVEMBER 26, 2018.—Ordered to be printed 

Mr. JOHNSON, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany S. 3405] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 3405), to reauthorize the Chemical Facility Anti-Terrorism Standards Program of the Department 

of Homeland Security, having considered the same, reports favorably thereon with an amendment (in the nature of a subsitute) and 

recommends that the bill, as amended, do pass. 

CONTENTS 

Page 

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

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

III. Legislative History ......................................................................................... 18 

IV. Section-by-Section Analysis .......................................................................... 19 

V. Evaluation of Regulatory Impact .................................................................. 22 

VI. Congressional Budget Office Cost Estimate ................................................ 22 

VII. Changes in Existing Law Made by the Bill, as Reported ........................... 25 

I. PURPOSE AND SUMMARY

The purpose of S. 3405, the Protecting and Securing Chemical 

Facilities from Terrorist Attacks Act of 2018, is to reauthorize and 

improve the Chemical Facility Anti-Terrorism Standards (CFATS) 

program at the Department of Homeland Security (‘‘DHS’’ or the 

‘‘Department’’) for a period of five years. 

The legislation makes several important reforms to improve the 

CFATS program’s effectiveness and efficiency. Importantly, it improves transparency regarding changes to tiers and the list of covVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR384.XXX SR384
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1Department of Homeland Security Appropriations Act, Pub. L. No. 109–295, § 550, 120 Stat. 

1355, 1388–1389 (2006); see also Frank Gottron, Cong. Research Serv., IF10853, Chemical Facility Anti-Terrorism Standards (2018), available at http://www.crs.gov/Reports/IF10853. 2Dep’t of Homeland Sec., Chemical Facility Anti-Terrorism Standards (CFATS) (2018), available at https://www.dhs.gov/chemical-facility-anti-terrorism-standards (last visited Nov. 9, 2018); 

see also Dep’t of Homeland Sec., CFATS Monthly Statistics (2018), available at https:// 

www.dhs.gov/cfats-monthly-statistics. 3Dep’t of Homeland Sec., CFATS Covered Facilities and Inspections (2018), available at 

https://www.dhs.gov/cfats-covered-chemical-facilities (last visited Nov. 9, 2018). 4 Chemical Facility Anti-Terrorism Standards, supra note 2. 5Maritime Transportation Security Act of 2002, Pub. L. No. 107–295, § 116 Stat. 2064 (2002). 

6 42 U.S.C. § 300; 33 U.S.C. § 1292. 

7 CFATS Covered Facilities and Inspections, supra note 3. 8Frank Gottron, Cong. Research Serv., IF10853, Chemical Facility Anti-Terrorism Standards 

(2018), available at http://www.crs.gov/Reports/IF10853. 9Dep’t of Homeland Sec., Appendix A: Chemicals of Interest (COI) (2018), available at https:// 

www.dhs.gov/appendix-a-chemicals-interest-list. 

ered chemicals; requires improved reporting to Congress and assessments on how the program improves security; provides regulatory relief for certain covered facilities regulated by the Bureau 

of Alcohol, Tobacco, Firearms, and Explosives (ATF), and companies that participate in a CFATS recognition program; and extends 

authorization for the CFATS program for an additional five years. 

II. BACKGROUND AND THE NEED FOR LEGISLATION

Background on the CFATS program 

In 2006, Congress authorized the Secretary of Homeland Security to regulate security at high-risk chemical facilities through the 

Department of Homeland Security Appropriations Act of 2007, thus 

creating the CFATS program.1 The program is managed by the Infrastructure Security Compliance Division (ISCD), within DHS’s 

National Protection and Programs Directorate. DHS regulates 

3,369 high-risk chemical facilities, and covers over 40,000 facilities.2 The CFATS program regulates facilities within multiple industries including ‘‘chemical manufacturing, storage and distribution, energy and utilities, agriculture and food, explosives, mining, 

electronics, plastics, universities and laboratories, paint and coatings, healthcare and pharmaceuticals.’’ 3

The CFATS program regulates chemical facilities throughout the 

United States determined to be high risk by DHS.4 Some facilities 

are exempt from the program, including those regulated by the 

U.S. Coast Guard under the Maritime Transportation Security 

Act 5; public water systems and treatment works regulated by the 

Environmental Protection Agency 6; facilities that are owned or operated by the Department of Defense and Department of Energy; 

facilities regulated by the Nuclear Regulatory Commission; and 

some agricultural production facilities.7

Under the CFATS program, non-exempt facilities are required to 

compare their chemical inventories to the 322 chemicals of interest 

and threshold quantities in Appendix A, created by the Department 

under the CFATS program.8 The chemicals listed on Appendix A 

are determined to be a chemical of interest based on their screening threshold quantities and the security issues related to each 

chemical.9 If the facilities’ amounts of chemicals on Appendix A are 

below the threshold, they are not regulated by CFATS. If the company’s amounts of chemicals on Appendix A are above the stated 

amount, the company is required to submit additional information 

to DHS via an online ‘‘Top-Screen’’ to determine if they are to be 

3 

10Dep’t of Homeland Sec., Chemical Security Assessment Tool (CSAT) Top-Screen (2018), 

available at https://www.dhs.gov/csat-top-screen (a Top-Screen is an online survey that helps 

DHS determine if a facility meets the level of risk to be regulated under CFATS). 11Dep’t of Homeland Sec., CFATS Monthly Statistics (2018), available at https://www.dhs.gov/ 

cfats-monthly-statistics (last visited Nov. 9, 2018). 12Frank Gottron, supra note 8. 13 Id. 14 Id. 15Dep’t of Homeland Sec., Risk-Based Performance Standards (RBPS) (2018) available at 

https://www.dhs.gov/cfats-rbps. 16Dep’t of Homeland Sec., Risk-Based Performance Standards Guidance (2009), available at 

https://www.dhs.gov/sites/default/files/publications/CFATS-Risk-Based-Performance-Standards508.pdf. 17Frank Gottron, supra note 8. 18 Id. 19Dana A. Shea, Cong. Research Serv., R41642, Chemical Facility Security: Issues and Options for the 112th Congress (2012), available at https://fas.org/sgp/crs/homesec/R41642.pdf. 20 U.S. Gov’t Accountability Office, GAO–13–353, Critical Infrastructure Protection (2013), 

available at https://www.gao.gov/products/gao-13-353. 21 Id. 

regulated.10 Since the program’s inception, the Department has received over 90,000 Top-Screens from more than 40,000 chemical facilities nationwide.11

Facilities subject to CFATS regulations are divided into four tiers 

based on the Department’s determination of the relative security 

risks of the covered facilities, with Tier 1 including the highest risk 

and Tier 4 covering the lowest risk.12 Most of the facilities regulated under CFATS fall under Tier 3 and Tier 4.13 According to an 

October 2018 report by the Congressional Research Service (CRS), 

five percent of facilities fall under Tier 1; two percent of the facilities are under Tier 2; 40 percent of facilities are in Tier 3; and 53 

percent of facilities fall under Tier 4.14

A covered chemical facility’s security plans and implementation 

must comply with DHS’s Risk-Based Performance Standards 

(RBPS).15 There are currently 18 RBPS which include: ‘‘Restrict 

Area Perimeter’’; ‘‘Secure Site Assets’’; ‘‘Screen and Control Access’’; 

‘‘Deter, Detect, and Delay’’; ‘‘Shipping, Receipt, and Storage’’; ‘‘Theft 

or Diversion’’; ‘‘Sabotage’’; ‘‘Cyber’’; ‘‘Response’’; ‘‘Monitoring’’; 

‘‘Training’’; ‘‘Personnel Surety’’; ‘‘Elevated Threats’’; ‘‘Specific 

Threats, Vulnerabilities, or Risks’’; ‘‘Reporting of Significant Security Incidents’’; ‘‘Significant Security Incidents and Suspicious Activities’’; ‘‘Officials and Organization’’; and ‘‘Records.’’ 16 The highest 

risk facilities (Tier 1 and Tier 2) are required to comply with the 

most rigorous standards.17 According to CRS, ‘‘[t]he statute does 

not permit DHS to require any particular security measure. Facilities may implement any security program or process that adequately meets the requisite performance level for its risk level.’’ 18

Between 2007 and 2014, Congress extended the CFATS program 

annually via appropriations.19 However, the program was plagued 

with significant problems. According to the Government Accountability Office (GAO), the program had a seven to nine year backlog 

to review approximately 3,120 site security plans.20 GAO also reported to Congress that DHS’s tiering methodology did not consider 

key risk elements, including economic consequences and facility 

vulnerability.21 GAO also referenced program management issues 

with executing the CFATS program. 

According to a leaked 2011 DHS memorandum, management 

issues within the program included ‘‘an array of challenges that 

ISCD had experienced implementing the CFATS program, including an inability to hire staff with the needed skills, an overly comVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR384.XXX SR384
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22 U.S. Gov’t Accountability Office, GAO–13–801T, Critical Infrastructure Protection (2013), 

available at https://www.gao.gov/assets/660/656482.pdf. 23Dep’t of Homeland Sec., Office of Inspector Gen., OIG–13–55, Effectiveness of the Infrastructure Security Compliance Division’s Management Practices to Implement the Chemical Facility Anti-Terrorism Standards Program (2013), available at https://www.oig.dhs.gov/sites/default/files/assets/Mgmt/2013/OIG_13-55_Mar13.pdf. 24 Id. 25 Id. 26Sen. Tom Coburn of Sen. Comm. on Homeland Sec. & Governmental Affairs, 113th Cong., 

Chemical Insecurity, (Comm. Print 2014), available at https://www.hsgac.senate.gov/imo/media/ 

doc/Chemical_Insecurity.pdf. 27 Id. 28 Id. 29Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, Pub. L. No. 

113–254, § 128 Stat. 2898 (2014); see also Frank Gottron, supra note 8. 

plicated security plan review process, and a compliance inspection 

process that had yet to be developed.’’ 22 The DHS Office of Inspector General (DHS OIG) also issued a report in 2013 questioning 

whether the CFATS program could achieve its mission, documenting 13 major deficiencies and providing 24 recommendations.23 According to the report, ‘‘[p]rogram progress has been 

slowed by inadequate tools, poorly executed processes, and insufficient feedback on facility submissions.’’ 24 The DHS OIG also found 

that ‘‘[o]verall efforts to implement the program have resulted in 

systematic noncompliance with sound Federal Government internal 

controls and fiscal stewardship. . . .’’ 25

Congress also questioned whether the program was successfully 

reducing risk and enhancing security. In 2014, Senator Tom 

Coburn, then the Ranking Member of the Senate Committee on 

Homeland Security and Governmental Affairs, released a minority 

staff report evaluating CFATS. According to the report, the Department’s own internal review found ‘‘fundamental problems, errors, 

inconsistencies, and unsupported assumptions in the methodology 

underlying the whole CFATS program as well as a general lack of 

transparency with the private sector and outside experts.’’ 26 It also 

found ‘‘fundamental problems in the design, implementation, and 

management of the CFATS program,’’ including multiple challenges with DHS risk formulas.27

Based on his oversight and the available information from watchdogs in 2014, Senator Coburn wrote: 

In its current form, CFATS isn’t working. The program 

regulates the wrong chemical plants—increasing costs for 

companies at lower risk while missing those at higher 

risk—and would not make us significantly more secure 

even if it worked as designed. Faced with new evidence of 

on-going challenges in CFATS, and the likelihood that the 

program will not be adequately fixed for many more 

years—if ever—Congress must act decisively. Whether 

Congress decides to substantially overhaul CFATS and put 

it on track, or terminate the program altogether, one thing 

is clear: small fixes here are no fix at all.28

Protecting and Securing Chemical Facilities from Terrorist Attacks 

Act of 2014 

In 2014, Congress attempted to fix these problems by authorizing 

and reforming the program in the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (2014 Authorization).29 The legislation made several changes to the program. First, 

5 

30 Id. 31 Id. 32 Id. 33 Id. 34 Request letter from S. Comm. on Homeland Sec. & Governmental Affairs and H. Comm. 

on Homeland Sec. to U.S. Government Accountability Office (March 13, 2017) (on file with 

Comm. majority staff). Chairman Michael McCaul later joined the request. 35 Request letter from Chairman Ron Johnson to U.S. Dep’t of Homeland Sec., National Protection and Programs Directorate, Infrastructure Security Compliance Division (April 4, 2018) 

(on file with Comm. majority staff). 36 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before the 

Sen. Comm. on Homeland Sec. & Governmental Affairs, 115th Cong. (2018), available at https:// 

www.hsgac.senate.gov/hearings/roundtable_-examining-the-chemical-facility-anti-terrorismstandards-program. 37Letter from Chairman Ron Johnson and Senator Shelley Moore Capito to the House Committee on Homeland Security and the House Committee on Energy and Commerce (October 23, 

2018) (on file with Comm. majority staff). 38See e.g., Comm. staff briefing with FBI (Feb. 8, 2018); Comm. staff briefing with FBI (Apr. 

9, 2018); Comm. staff briefing with Envtl. Tech. Council (Apr. 12, 1018); Comm. staff briefing 

with Dep’t of Homeland Sec. (May 14, 2018); Comm. staff briefing with Dep’t of Homeland Sec. 

(June 1, 2018); Comm. staff briefing with GAO (June 7, 2018). 39Majority staff analysis of U.S. Dep’t of Homeland Sec., Chemical Facility Anti-Terrorism 

Standards Semiannual Performance Reports (Sept. 26, 2015 to Sept. 12, 2018) (on file with 

Comm. majority staff) [hereinafter Majority staff analysis of Chemical Facility Anti-Terrorism 

Standards Semiannual Performance Reports]. 

the legislation established the Expedited Approval Program, providing greater flexibility for Tier 3 and Tier 4 owners and operators 

to develop their facility’s site security plans.30 Second, the 2014 Authorization improved whistleblower protections.31 Third, the 2014 

Authorization required DHS to biannually report its performance 

metrics to Congress and conduct outreach to chemical facilities.32

The 2014 Authorization included a four-year sunset of the CFATS 

program, setting the program to expire on January 17, 2019.33

The Committee’s oversight in the 115th Congress 

Throughout the 115th Congress, the Committee has conducted 

oversight of the CFATS program. On March 13, 2017, Chairman 

Ron Johnson, Ranking Member Claire McCaskill, and Ranking 

Member Bennie Thompson of the House Committee on Homeland 

Security requested GAO conduct a review of the CFATS program.34

On April 4, 2018, Chairman Johnson wrote a letter to ISCD requesting additional information on the CFATS program, including 

the status of overdue reports to Congress, and the number of facilities certified under expedited approval.35 On June 12, 2018, the 

Committee held a roundtable titled, Examining the Chemical Facility Anti-Terrorism Standards, that included DHS, GAO, a CFATS 

chemical inspector, and a variety of chemical facilities and industry 

groups.36 On October 23, 2018, Chairman Johnson and Senator 

Capito wrote a letter to the House Committee on Homeland Security and the House Committee on Energy and Commerce regarding 

the CFATS reauthorization, urging both Committees to work with 

the Senate and incorporate the reforms in S. 3405 into the CFATS 

reauthorization.37 Committee staff has also met with chemical facilities owners, industry trade associations, and received multiple 

briefings from DHS, ATF, CRS, GAO, the Federal Bureau of Investigation (FBI), and Sandia National Laboratories.38

Through congressional oversight and DHS OIG and GAO reports, 

the management and performance of the CFATS program has improved. For example, DHS has completely reduced the number of 

facilities awaiting final tiering into the CFATS program.39 GAO 

previously estimated it could take seven to nine years for DHS to 

6 

40 Critical Infrastructure Protection, supra note 20. 41Majority staff analysis of Chemical Facility Anti-Terrorism Standards Semiannual Performance Reports. 42 U.S. Gov’t Accountability Office, GAO–17–502, Critical Infrastructure Protection (2017), 

available at https://www.gao.gov/assets/690/685520.pdf. 43 Id. 44 Id. 45 Id. 46 Id. 47 Id. 48 Id. 49 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before the 

Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36 (For example, on July 

20, 2018, Committee staff attended a CFATS facility tour organized by DHS and asked the facility if they have heard of the Expedited Approval Program. The facility said they had not heard 

of the program.). 

verify site security plans and clear the backlog.40 Additional improvements include an increase in the number of compliance inspections, and a reduced timeframe for facilities to submit an initial Site Security Plan or Alternative Security Plan.41

As discussed below, additional reforms are still needed before the 

program is reauthorized. As discussed below, S. 3405 incorporates 

the information learned from the Committee’s oversight to make 

improvements in the CFATS program. 

S. 3405 Requires DHS to ensure broader awareness of the Expedited 

Approval Program 

The Expedited Approval Program allows flexibility for Tier 3 and 

Tier 4 facilities to develop expedited security plans versus the 

standard security plans, effectively encouraging companies that 

own covered chemical facilities to proactively implement security 

measures in compliance with CFATS without requiring a DHS authorization inspection.42 The Expedited Approval Program was also 

intended to reduce the time and costs required to comply with the 

CFATS program.43

However, few companies have participated in expedited approval 

since the 2014 Authorization. In 2015, DHS reported that only one 

facility was utilizing the program.44 According to GAO, in April 

2017, only 2 facilities were using the program out of 2,496 eligible 

facilities.45 Representatives from facilities that have used the Expedited Approval Program said ‘‘its prescriptive nature helped them 

quickly determine what they needed to do to implement required 

security measures and reduced the time and cost to prepare and 

submit their security plans to DHS.’’ 46

Low participation in the Expedited Approval Program has been 

attributed to how it was implemented by DHS, its stringent security measures, and the desire for in-person authorization inspections.47 Further, the online assessment tool used to collect data for 

facilities not participating in expedited approval (CSAT 2.0) has become more user friendly and less burdensome, resulting in facilities 

to choose the normal CFATS process.48 In addition, majority Committee staff found that some facility representatives and industry 

groups are unaware of the Expedited Approval Program’s existence, raising questions about DHS’s efforts to proactively inform 

companies of their options to effectively self-certify their security 

measures through the Expedited Approval Program.49 Today, participation in the expedited approval option within the CFATS program remains limited, with only 17 facilities out of 3,130 particiVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR384.XXX SR384
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50 Email from Dep’t of Homeland Sec. to Comm. majority staff (Oct. 24, 2018) (on file with 

Committee majority staff). 51 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before the 

Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36 (statement of William 

Erny, Senior Director, American Chemistry Council), available at https://www.hsgac.senate.gov/ 

hearings/roundtable_-examining-the-chemical-facility-anti-terrorism-standards-program; see also 

Responsible Care, American Chemistry Council, https://responsiblecare.americanchemistry. 

&fnl;com/. 52 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before the 

Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36 (written testimony of 

Randall Eppli, President and CEO, Columbus Chemical Industries, Inc.). 53 Id. (written testimony of Justin Louchheim, Director of Government Affairs, The Fertilizer 

Institute). 54 Id. 

pating.50 To increase participation, S. 3405 requires DHS to notify 

all new and currently covered CFATS facilities of the Expedited 

Approval Program. The bill also gives facility owners and operators 

additional time to certify expedited approval security plans to potentially allow more businesses to use the Expedited Approval Program. 

S. 3405 Requires DHS to provide greater regulatory relief for companies that participate in the CFATS Recognition Program 

During the Committee’s June 12, 2018, roundtable, six representatives from the chemical industry expressed their support for 

greater regulatory relief for covered chemical facilities that participate in industry-led best practices or recognition programs and exceed compliance of CFATS security standards. Currently, the chemical industry has a variety of stewardship programs, which assist 

facilities in complying with various standards and regulations, including health, environmental, safety, and security.51 At the roundtable, industry and participating facilities described the potential 

benefits of creating a CFATS Recognition Program to provide covered facilities participating in current and future industry stewardship programs additional regulatory relief. Randall Eppli of Columbus Chemical Industries, a chemical facility headquartered in Columbus, Wisconsin, explained that companies that participate in 

verified industry security standard programs ‘‘have made a strong 

commitment to operate their facilities safely and securely,’’ and argued that, ‘‘[r]ecognizing these responsible companies through simple measures like less frequent inspections would allow DHS to 

prioritize resources to concentrate on the outliers’ or bad actors 

who don’t participate in these programs that may pose a greater 

security risk to themselves or the population at large.’’ 52

Justin Louchheim, Director of Government Affairs at The Fertilizer Institute (TFI), which represents both large and small fertilizer companies nationwide, highlighted ResponsibleAg, the agricultural retailers’ industry compliance program that assists in ensuring its members comply with various Federal regulations, including CFATS, as an example of an Industry-led program that 

should be eligible for a CFATS Recognition Program.53 According 

to Mr. Louchheim, ‘‘[t]o date, over 2,500 facilities are registered 

with the ResponsibleAg program, over 1,000 of these facilities have 

been certified, 185 auditors have been trained, and almost 2,000 

audits have been completed.’’ 54

William Erny, Senior Director of the American Chemistry Council, which represents major chemical producers and businesses 

within the chemistry field, also expressed support for the concept 

8 

55 Id. (written testimony of William Erny, Senior Director, American Chemistry Council). 56 Id. (statement of David Wulf, Acting Deputy Assistant Sec’y for Infrastructure Protect., 

Nat’l Prot. and Programs Directorate U.S. Dep’t of Homeland Sec.). 57 Id. 58 U.S. Dep’t of Homeland Sec., Chemical Facility Anti-Terrorism Standards: Compliance Inspection (CI) (2017), available at https://www.dhs.gov/sites/default/files/publications/fs-cfats-compliance-inspection-508_0.pdf. 59Dep’t of Homeland Sec., CFATS Monthly Statistics (2018), available at https://www.dhs.gov/ 

cfats-monthly-statistics. 60 Comm. majority and minority staff meeting with Dep’t of Homeland Sec. (Sept. 18, 2018). 

of a recognition program: ‘‘DHS can provide regulatory recognition 

for responsible operators that demonstrate superior performance 

and who exceed regulatory compliance. Such a program would 

incentivize the implementation of existing industry stewardship 

programs-and the creation of new ones where necessary—thus enhancing chemical security across the sector and beyond the universe of CFATS regulated facilities.’’ 55

DHS told the Committee that encouraging industry security best 

practices through a recognition program would enhance security. 

Specifically, David Wulf, then Acting Deputy Assistant Secretary 

for Infrastructure Protection, stated that industry stewardship programs ‘‘do great work, and they raise the bar for security . . . not 

only at the 10 percent or so of facilities that find themselves covered under CFATS but at those other 90 percent.’’ 56 Mr. Wulf also 

said they are ‘‘very interested in working with the Committee on 

prospects for ways in which we can recognize those programs within CFATS, whether that is the ability to place facilities that are in 

good standing with those programs on a . . . less frequent inspection cycle, or other ways of recognizing.’’ 57

S. 3405 requires the establishment of a CFATS Recognition Program within 270 days of enactment that will leverage industry 

stewardship programs to better secure covered chemical facilities. 

Specifically, the bill requires the Secretary of Homeland Security to 

establish criteria for the CFATS Recognition Program, minimum 

eligibility criteria for industry stewardship programs that would 

like to participate, and performance requirements for participating 

facilities within nine months of the bill’s passage. S. 3405 also requires the Secretary of Homeland Security to establish program incentives for participation in the CFATS Recognition Program. This 

includes a reduction in the frequency of compliance inspections; 

streamlined processes for vulnerability assessments and site security plans; and any additional regulatory relief determined appropriate. The Committee expects that DHS will work with industry 

to develop the CFATS Recognition Program and ensure facilities 

are aware of how they can use it. 

S. 3405 Requires DHS to reduce the frequency of audits and inspections 

The purpose of a compliance inspection is to ensure covered facilities are completely implementing their security measures.58 According to the Department, 3,995 Compliance Inspections have 

been conducted since the program’s inception.59 On average, the 

frequency of audits and inspections take place every 18 months to 

two years.60

This legislation changes the frequency of CFATS audits and inspections to be more in line with other Federal regulatory inspection regimes. Under the Safe Explosives Act, for example, ATF is 

9 

61Safe Explosives Act, Pub. L. No. 107–296, § 116 Stat. 2280 (2002). 62 U.S. Envtl. Prot. Agency, State Compliance Monitoring Expectations (2018), available at 

https://echo.epa.gov/trends/comparative-maps-dashboards/state-compliance-monitoring-expectations. 63 Id. 64 Id. 65 U.S. Dep’t of Labor, Occupational Safety and Health Administration, OSHA 3132, Process 

Safety Management (2000), available at https://www.osha.gov/Publications/osha3132.pdf. 66 Comm. majority and minority staff meeting with Dep’t of Homeland Sec. (Sept. 18, 2018). 67 U.S. Dep’t of Homeland Sec., CFATS Personnel Surety Program (last updated Aug. 22, 

2018), available at https://www.dhs.gov/cfats-personnel-surety-program. 68 Id. 69 Id. 

required to inspect storage magazines of every licensee at least 

once every three years.61 Under the Clean Air Act, the Environmental Protection Agency (EPA) is required to conduct a full ‘‘compliance evaluation at title V major facilities once every two federal 

fiscal years; at mega-sites, which are the largest title V major facilities, once every three federal fiscal years; and at SM–80s once 

every five federal fiscal years.’’ 62 Under the Clean Water Act, the 

EPA inspects major facilities at least once every two years and 

non-major facilities at least once every five years.63 Under the Resource Conservation and Recovery Act, large quantity generators 

are inspected by the EPA every five years.64 Under the Department 

of Labor’s Occupational Safety and Health Administration process 

safety management standards, compliance audits of highly hazardous chemicals are conducted at least every three years.65

Under S. 3405, covered chemical facilities cannot be inspected 

more frequently than once every two years. This codifies the twoyear duration of DHS’s current practice 66 and will also help increase efficiency. In addition, under S. 3405, those companies participating in a CFATS recognition program that meet compliance, 

audit, and inspection requirements cannot be inspected more frequently than once every three years. However, the Secretary may 

conduct more frequent audits and inspections for specific reasons, 

including when: the facility has identified planned enhancements 

that have not been verified; the facility commits a deficiency or infraction that could result in an enforcement action; the Department 

has identified a specific or elevated threat; suspicious activity or a 

security incident has occurred at the facility; or the Secretary determines, due to exigent circumstances, that an inspection or audit 

is needed. 

S. 3405 Improves the Personnel Surety Program 

Under RBPS–12, covered facilities are required ‘‘to account for 

four types of background checks on facility personnel and 

unescorted visitors who have or are seeking access to restricted 

areas, critical assets, and chemicals of interest at high-risk facilities.’’ 67 The purpose of these background checks are to confirm a 

person’s identity; check for any criminal history; certify legal authorization to work at the facility; and identify individuals with terrorist connections.68

Currently, only Tier 1 and Tier 2 facilities are required to screen 

for individuals with terrorists connections through the Personnel 

Surety Program (PSP).69 Under RBPS–12, frequent vetting of individuals’ information against the Terrorist Screening Database is reVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\SR384.XXX SR384
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70 Comm. majority and minority staff briefing with Dep’t of Homeland Sec. (June 1, 2018) 

(briefing notes on file with Comm. majority staff). 71Fed. Bureau of Investigations, Leadership and Structure, Terrorist Screening Center, available at https://www.fbi.gov/about/leadership-and-structure/national-security-branch/tsc. 72 CFATS Personnel Surety Program supra note 67. 73 Chemical Facility Anti-Terrorism Standards Personnel Surety Program, 82 Fed. Reg. 61312 

(proposed Dec. 27, 2017) (to be codified in C.F.R. pt. 6), available at https:// 

www.federalregister.gov/documents/2017/12/27/2017-27519/chemical-facility-anti-terrorismstandards-personnel-surety-program. 74 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before the 

Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36. 75 Id. (written testimony of William Erny, Senior Director American, Chemistry Council). 76 Id. (written testimony of Justin Louchheim, Director, Government Affairs The Fertilizer Institute). 77 U.S. Dep’t of Homeland Sec., CFATS Personnel Surety Program (last updated Aug. 22, 

2018), available at https://www.dhs.gov/cfats-personnel-surety-program. 78 Comm. majority staff briefing with Dep’t of Homeland Sec. (July 24, 2018) (briefing notes 

on file with Comm. majority staff). 

quired.70 The Terrorist Screening Database is administered by the 

FBI and supports Federal agencies in detecting known or suspected 

terrorists.71 Facilities can submit an individual’s information to 

DHS in different ways to screen an individual against the Terrorist 

Screening Database. This includes via DHS’s online portal; directly 

verifying an individual’s enrollment in an existing DHS program; 

utilizing an electronic reader to verify credentials; or using another 

Federal screening program that operates the Terrorist Screening 

Database.72

On December 27, 2017, DHS posted a notice in the Federal Register seeking comment on its proposal to extend the PSP terror 

screening requirements to Tier 3 and Tier 4 facilities.73 Industry 

has voiced concerns with this proposed expansion.74 According to 

written testimony from Mr. Erny of the American Chemistry Council (ACC), 

such an expansion of the PSP program is unnecessary and 

will needlessly put personal employee information at risk. 

ACC believes the benefit associated with [Terrorist Screening Database] vetting is simply not worth the cost or the 

risk. While we support [Terrorist Screening Database] vetting at high risk Tier 1 and 2 facilities, ACC recommends 

elimination of this requirement for lower risk Tiers 3 and 

4 facilities, or could be an option for those who choose to 

participate.75

Additionally, Mr. Louchheim from the The Fertilizer Institute stated that this is an ‘‘exponential expansion of the program from the 

less than 200 facilities presently covered to more than 3,500. Many 

of the 1,500 or so agricultural retail facilities are not equipped to 

implement this program at this time.’’ 76

All covered CFATS facilities are required to run background 

checks to confirm a person’s identity; check for any criminal history; and certify legal authorization to work at the facility.77 Committee majority staff oversight and review of DHS’s data on the use 

of the terror screening strategy suggests that it is not effective in 

achieving DHS’s purported personnel security objectives.78 Industry standard background checks plus the additional background 

checks required under RBPS–12 for all covered facilities eliminates 

the need to require terror screening at lower-risk Tier 3 and Tier 

4 facilities. 

11 

79Dep’t of Homeland Sec., Chemical Facility Anti-Terrorism Standards: RBPS 12(iv)—Screening for Terrorist Ties (2017), available at https://www.dhs.gov/sites/default/files/publications/fsrbps-12iv-psp-508.pdf. 80Dep’t of Homeland Sec., CFATS Tiering Methodology (2018), available at https:// 

www.dhs.gov/cfats-tiering-methodology. 81 Id. 82 Id. 83 Id. 84 Id. 85 Id. 86 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before the 

Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36. 87 Id. (statement of Linda Menendez, Dir. of Operations, Austin Powder Co.). 88 Id. (written testimony of William Erny, Senior Dir., Ame. Chemistry Council). 

S. 3405 makes clear that terror screening must be conducted by 

all Tier 1 and Tier 2 covered facilities, consistent with the policy 

that was implemented during the Obama Administration in 2015,79

but is only optional for all Tier 3 and Tier 4 covered facilities. 

S. 3405 Requires DHS to be more transparent regarding changes in 

facility tiering 

In 2013, outside industry and government experts conducted a 

review of the CFATS risk-tiering methodology and provided findings and recommendations to DHS.80 The review determined that 

DHS needed to develop an enhanced tiering methodology to more 

adequately assign risk to chemical facilities.81 In 2016, DHS introduced a new tiering methodology and notified all chemical facilities 

potentially subject to CFATS regulations to submit information 

through a new online tool, the Chemical Security Assessment Tool 

(CSAT) 2.0.82 In April 2017, DHS, using its new, enhanced methodology, began notifying facilities of their CFATS program tier.83 The 

Department continues to notify facilities of their tiering status on 

a rolling basis as new facilities submit Top-Screens or currently 

regulated facilities update their chemical holdings.84

According to DHS, ‘‘some facilities have seen a change in their 

tier. Some facilities that were previously not covered under CFATS 

found themselves covered, and some previously-covered facilities 

are no longer considered high-risk.’’ 85

During the Committee’s roundtable in June 2018, representatives of the chemical industry discussed these changes in tiering 

and the need for DHS to be more transparent regarding methodology changes.86 For example, Linda Menendez, Director of Operations for Austin Powder, an explosives company headquartered in 

Cleveland, Ohio, explained the company had a facility ‘‘that was 

previously tiered a 2, requiring us to implement all of these security measures. When CFATS 2.0 came about we had to re-tier. We 

dropped to a Tier 3, with no explanation. We had no change in the 

facility, no change in the chemicals, no change in the quantity of 

the chemicals, and we dropped down to a Tier 3.’’ 87

Mr. Erny from the American Chemistry Council called for greater transparency and information sharing when DHS changes a facility’s tiering level: ‘‘Often times the facility security director—the 

very person with the overall responsibility and authority for making critical security risk management decisions for the site—is not 

aware of the determining factor(s) behind the assigned risk tier 

level.’’ 88 Mr. Louchheim from The Fertilizer Institute also explained that ‘‘some TFI facilities were reclassified into a higher risk 

classification. What was not clear to TFI members, was the underVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\SR384.XXX SR384
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89 Id. (written testimony of Justin Louchheim, Dir. of Gov’t Affairs, Fertilizer Institute). 90This is defined as sensitive, but not classified, information. 91Sen. Tom Coburn of Sen. Comm. on Homeland Sec. & Governmental Affairs, 113th Cong., 

Chemical Insecurity, (Comm. Print 2014), available at https://www.hsgac.senate.gov/imo/media/ 

doc/Chemical_Insecurity.pdf. 92 Id. 93Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, Pub. L. No. 

113–254, § 128 Stat. 2898 (2014). 94 Id. 

lying basis for the new categorizations. We believe this should be 

a more transparent effort between DHS and individual facilities, 

allowing for a more thorough discussion of the security risks posed 

by individual facilities. This could ultimately bolster the quality of 

site security plans.’’ 89 If facilities receive information as to why 

their tier changed, they will have an actual understanding of the 

current and changing risks their facilities pose to their employees 

and surrounding communities. This can result in facilities taking 

additional security measures or reducing their chemical inventories. 

S. 3405 includes changes to the CFATS program to increase 

transparency between DHS and the regulated chemical facilities. 

Specifically, the bill requires the Secretary of Homeland Security to 

submit a controlled unclassified 90 statement to facilities within 30 

days on why their tier changed or they are no longer regulated 

under CFATS. 

S. 3405 Requires DHS to improve the metrics it uses to evaluate 

program success 

Prior to the 2014 reauthorization, the Committee’s then-Ranking 

Member, Senator Coburn, issued a report about the CFATS program, and included a finding that ‘‘without better metrics DHS has 

no way of knowing [if] CFATS is improving security and reducing 

the risk of terrorist attack[s].’’ 91 Senator Coburn’s report concluded 

that DHS must implement metrics ‘‘to show to the private sector 

and Congress CFATS is improving chemical security at high risk 

chemical facilities, the facilities being regulated are truly high risk, 

CFATS reflects plausible attack scenarios, and the program is not 

merely shifting risk elsewhere.’’ 92

To help Congress more effectively evaluate whether the CFATS 

program was improving, the 2014 legislation required DHS to biannually report to Congress on the program’s performance and include metrics to assist in its oversight of the program.93 However, 

because the program had implementation issues, the metrics required under the 2014 legislation did not address risk reduction 

and instead looked at basic program implementation metrics. For 

example, DHS was required to provide metrics on how many compliance or authorization inspections were completed during the reporting period and how many inspectors attended each inspection 

on average.94

Through its oversight, the Committee has found that these basic 

data points were not sufficient to address the degree to which 

CFATS was materially reducing terrorism risks. At the June 12, 

2018 Committee roundtable, GAO representative Christopher 

Currie stated that ‘‘measuring risk reduction or the security benefit 

[of the CFATS program] is really difficult. It is hard to do that with 

just outputs. So I think we need to continue to push DHS to try 

13 

95 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before the 

Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36 (statement of Christopher 

Currie, Dir., Homeland Sec. & Justice Team, U.S. Gov’t Accountability Office). 96 U.S. Gov’t Accountability Office, GAO–18–538, Critical Infrastructure Protection (2018), 

available at https://www.gao.gov/assets/700/693817.pdf. 97 Id. 98 Comm. majority and minority staff briefing with Dep’t of Homeland Sec. (Sept. 18, 2018) 

(briefing notes on file with Comm. majority staff). 99 Comm. majority staff phone briefing with Dep’t of Homeland Sec. (Oct. 29, 2018) (notes on 

file with Comm. majority staff). 

to measure across the country how we are reducing risk.’’ 95 An August 2018 GAO report confirmed this statement, finding that DHS 

does not evaluate or measure vulnerability reduction.96 GAO emphasized that ‘‘[d]oing so would provide DHS an opportunity to 

begin assessing how vulnerability is reduced—and by extension, 

risk lowered—not only for individual high-risk facilities but for the 

CFATS program as a whole.’’ 97

S. 3405 includes language to update the CFATS program metrics 

requirements. New metrics include how effective CFATS is at managing security risks and measuring risk reduction. The updated requirements push DHS to evolve its very basic program metrics to 

more advanced risk-focused metrics to measure program effectiveness and risk reduction. The Committee is directing DHS to measure and demonstrate actual risk reduction, if any, provided by 

CFATS, and benefits, if any, for the money spent by U.S. taxpayers 

on the CFATS program. The metrics reporting period is also increased from six months to one year to allow the Department more 

time to focus on the report. 

S. 3405 Modifies the petition process for the exemption of covered 

products or mixtures 

DHS has voiced concerns to the Committee regarding the petition process for the exemption of covered chemical products or mixtures. DHS officials explained that there have been instances when 

mixtures of multiple chemicals include one chemical of interest, but 

in that mixture do not present the same hazard as the original 

form of the chemical of interest listed under Appendix A. 98 As a 

result, the mixture is no longer a chemical of interest and therefore 

will not be subject to CFATS regulation. 

Based on the Department’s feedback, S. 3405 includes language 

for an interested party to petition DHS to exempt certain chemical 

mixtures that no longer pose the same hazard as a pure CFATS 

chemical of interest listed under Appendix A. If, during processing, 

the pure CFATS chemical of interest is converted to a new chemical compound that is no longer a security risk, the company may 

petition DHS for an exemption on the final chemical product. 99

DHS can then review the petition and the technical basis for the 

exemption request. Following DHS’s review, DHS will make a final 

decision on whether or not to exempt the final chemical product, 

and notify the petitioner of the decision. 

S. 3405 Reduces duplicative regulations by exempting regulated explosive materials from CFATS 

A number of facilities are excluded from the CFATS program to 

prevent facilities from being subject to duplicative or contradictory 

regulatory regimes. The Department of Homeland Security ApproVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\SR384.XXX SR384
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100Department of Homeland Security Appropriations Act, 2007 Pub. L. N. 109–29, § 120 Stat. 

138 (2007); Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, Pub. 

L. No. 113–254, §128 Stat. 2898 (2014). 101See generally Organized Crime Control Act of 1970 18 U.S.C.A. § 842; Safe Explosives Act, 

Pub. L. No. 107–296, § 116 Stat. 2280 (2002). 102 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before 

the Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36 (written statement 

of Debra Satkowiak, President, Institute of Makers of Explosives). 103See Commerce in Explosives; 2017 Annual List of Explosive Materials, 56 Fed. Reg. 248 

(Proposed Dec. 28, 2017), available at https://www.gpo.gov/fdsys/pkg/FR-2017-12-28/pdf/2017- 

28010.pdf. 104 Id. 105Frank Gottron, supra note 8. 106 Comm. majority staff analysis of ATF’s annual Notice of List of Explosive Materials and 

CFATS Appendix A chemicals of interest. 107 Comm. majority staff analysis of DOJ and ATF’s explosive regulations and DHS’s CFATS 

regulations. 108 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before 

the Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36 (written statement 

of Debra Satkowiak, President, Institute of Makers of Explosives). 

priations Act of 2007 (and later the 2014 Authorization) exempted 

facilities from the CFATS regulations when those facilities are: 

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.100

S. 3405 maintains these exemptions. The CFATS program also 

overlaps with the ATF’s regulation of facilities used to store certain 

explosive materials. Explosive materials are regulated by ATF 

under the Organized Crime Control Act of 1970 and the Safe Explosive Act of 2002.101 When CFATS regulations were established 

in 2007, explosive materials became regulated by both the ATF and 

DHS.102

Under the Organized Crime Control Act of 1970, ATF annually 

publishes a list of explosive materials that it is responsible for regulating.103 As of December 28, 2017, there are 238 explosive materials on ATF’s annual Notice of List of Explosive Materials.104

CFATS currently regulates 322 chemicals of interest.105 Thirty-four 

explosive materials are regulated by both ATF and CFATS.106 In 

practice, this means that companies with facilities that are covered 

by both the CFATS and ATF regulatory regimes must comply with 

specific aspects of the program that are duplicative, such as background checks, inspections, and reviews of physical security measures. Companies must spend additional time (30.5 hours) to complete DHS’s Top Screens in addition to ATF’s permitting applications and submit duplicative reporting of potential security incidents to both agencies.107

The duplicative regulations come at a significant and unnecessary cost to the explosives industry. According to four case studies 

conducted by the Institute of Makers of Explosives (IME), ‘‘for the 

four sites reviewed, the total expected compliance cost reached over 

$2.6 Million; a sum that saw no proportionate increase in facility 

security.’’ 108 In addition to increasing costs, the duplicative regulaVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\SR384.XXX SR384
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109 Id. 110 Id. 111 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before 

the Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36. 112 Id. (written testimony of Linda Menendez, Dir. of Operations, Austin Powder Co.). 113 Id. 114 Id. 115 Id. (written and oral statement of Debra Satkowiak, President, Institute of Makers of Explosives) (additional data and information on file with Comm. majority staff). 116 Id. (written statement of Debra Satkowiak, President, Institute of Makers of Explosives). 117 Id. (statement of David Wulf, Acting Deputy Assistant Sec’y for Infrastructure Prot., Nat’l 

Prot. & Programs Directorate U.S. Dep’t of Homeland Sec.). 

tions have also resulted in potential safety issues. For example, 

‘‘[o]ne facility, also regulated by the Department of Defense (DoD) 

and ATF, was asked to run electricity to a mandated no-spark environment.’’ 109 This is a safety hazard as electricity cannot be within 

a certain range of explosives. ‘‘The result was the imposition of 

massive cost, upwards of $500,000, to run underground electricity 

in accordance with DoD regulations or put in place round-the-clock 

in-person surveillance over multiple storage sites, which carried 

with it an estimated cost of $3 [million].’’ 110

At the Committee’s June 12, 2018 roundtable, Ms. Menendez testified about Austin Powder’s experience complying with both regulatory regimes and the costs imposed to specific explosive facilities 

because they are also regulated by CFATS.111 For example, one 

Austin Powder facility went from not being a CFATS-covered facility in 2008 to being a Tier 2 after submitting a Top Screen in 

2013.112 To comply with Tier 2 RBPS, Austin Powder spent $325,000 on labor and implementation costs and has an annual expense of $70,000 for contracted monitoring services.113 Another 

Austin Powder facility not a CFATS-covered facility in 2008, but 

after Top Screen submissions in 2015 and 2017 it became a Tier 

3 facility. Costs to comply with Tier 3 RBPS totaled $837,400 with 

an additional annual recurring expense.114

Data and information provided to the Committee by the explosives industry shows that the CFATS program does not appear to 

have resulted in any change in the number of thefts of explosives, 

which raises questions about whether the duplicative regulatory regime under CFATS is enhancing security.115 During the Committee’s June 12, 2018 roundtable, Debra Satkowiak, President of IME 

explained: 

IME found that while there has been a consistent and remarkable reduction in thefts of explosives over the last 30 

plus years, there is no marked increase in that rate of decline following the beginning of the CFATS program. 

Clearly, the record shows that ATF regulations and industry best practices effectively ensure security of commercial 

explosives and prevent diversion for criminal or other illicit use.116

When discussing exempting explosive materials at the Committee’s June 12, 2018 roundtable, Mr. Wulf, Acting Deputy Assistant 

Secretary for Infrastructure Protection, stated that DHS is ‘‘sympathetic to the duplicative regulation situation. . . .’’ 117

S. 3405 exempts explosive materials regulated by DOJ under 

chapter 40 of title 18, United States Code, or by the ATF under 

part 555 of title 27, Code of Federal Regulations, as CFATS chemicals of interest. The bill also requires the Secretary of Homeland 

16 

118Frank Gottron, supra note 8. 119See generally Appendix to Chemical Facility Anti-Terrorism Standards, 6 Fed. Reg. pt. 2 

(Nov. 20, 2007) available at https://www.gpo.gov/fdsys/pkg/FR-2007-11-20/pdf/07-5585.pdf. 120 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before 

the Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36 (written statement 

of Jennifer Gibson, Vice President, Regulatory Affairs Nat’l Ass’n of Chem. Distrib.). 121 Id. (written testimony of Justin Louchheim, Dir. of Gov’t Affairs, Fertilizer Institute). 122 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before 

the Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36. 123 U.S. Gov’t Accountability Office, GAO–18–538, Critical Infrastructure Protection (2018), 

available at https://www.gao.gov/assets/700/693817.pdf. 

Security to remove any additional explosive material designated as 

a CFATS chemical of interest if it becomes regulated by DOJ or 

ATF in the future. For example, DHS will continue to regulate improvised explosive device precursor chemicals because ATF does 

not regulate the precursor chemicals. 

S. 3405 Requires notice of proposed rulemaking before changes to 

Appendix A 

As stated previously, Appendix A is a list of 322 chemicals of interest that are regulated under the CFATS program.118 The list 

has not been modified since its inclusion in the final rule on November 30, 2007.119 During the Committee’s June 12, 2018 roundtable, industry recommended clarifying the process required to 

make changes to Appendix A. For example, Jennifer Gibson, Vice 

President of Regulatory Affairs from the National Association of 

Chemical Distributors, suggested that: 

any changes to the Appendix A list of chemicals remain 

subject to notice and comment rulemaking. Changes to 

this [chemicals of interest] list have major impacts on 

many companies’ businesses and security investments. 

While changes may periodically be needed, it is important 

to give the regulated community the opportunity to provide information and explain the impacts of any proposed 

changes.120

Mr. Louchheim from The Fertilizer Institute also discussed the 

need for increased transparency in regards to Appendix A and how 

‘‘uncertainties could be remedied through a comprehensive notice 

and comment rulemaking.’’ 121

This legislation requires the Secretary of Homeland Security to 

publish a notice of proposed rulemaking before making any 

changes to Appendix A, which will give industry the opportunity to 

comment. Changes include a chemical being added as a CFATS 

chemical of interest; a chemical being removed as a CFATS chemical of interest; or a modification of a CFATS chemical of interest’s 

amount, concentration, or threshold quantity under Appendix A. 

S. 3405 Requires DHS to more effectively assess the program’s success 

The Committee’s oversight in the 115th Congress has focused on 

whether the CFATS program effectively reduces risk and enhances 

national security.122 GAO recommended in August 2018 that DHS 

take further action to measure risk reduction and national security 

benefits resulting from the CFATS implementation.123 GAO also 

found that ‘‘DHS shares some CFATS information, but first responders and emergency planners may not have all of the informaVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\SR384.XXX SR384
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124 Id. 125 Id. 126 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before 

the Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36 (statement of Jesse 

LeGros, Jr. Vice President, Infrastructure Prot., AFGE National Local #918). 127 Id. (written statement of Jesse LeGros, Jr. Vice President, Infrastructure Prote., AFGE National Local #918). 128 Id. 129 Id.; see also Dep’t of Homeland Sec., Risk-Based Performance Standards (RBPS) (2018) 

available at https://www.dhs.gov/cfats-rbps. 130 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before 

the Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36 (statement of Jesse 

LeGros, Jr. Vice President, Infrastructure Prot., AFGE National Local #918). 131 Id. 132 Id. 133 Individuals responsible for overseeing, reviewing, and approving compliance inspections. 134 Roundtable: Examining the Chemical Facility Anti-Terrorism Standards Program Before 

the Sen. Comm. on Homeland Sec. & Governmental Affairs, supra note 36 (statement of Jesse 

LeGros, Jr. Vice President, Infrastructure Prot., AFGE National Local #918). 135 Id. 

tion they need to minimize the risk of injury or death when responding to incidents at high-risk facilities.’’ 124 The GAO review 

also reported that DHS does not evaluate or measure vulnerability 

reduction.125

This legislation requires a third-party assessment to help address the issues raised by GAO. The assessment will address the 

CFATS program’s effectiveness in managing security requirements 

and the Department’s preparedness and response planning with 

first responders and emergency planners. It will also examine the 

development of metrics and capabilities to measure risk reduction. 

One area where additional improvement is needed, based on the 

Committee’s oversight during the 115th Congress, is inspector 

training. During the Committee’s June 2018 roundtable, a CFATS 

chemical inspector, Jesse LeGros, Jr., provided insight on current 

issues with inspector training.126 For example, inspector training 

has been significantly shortened compared to the first formal inspector academy class, to the point where most training is now acquired on the job.127 According to Mr. LeGros, the Department has 

also ‘‘hired a number of individuals with little to no physical security training or experience.’’ 128 In addition, Mr. LeGros discussed 

a particular lack of cybersecurity training, which is covered under 

RBPS–8.129 The two limited classes provided to inspectors ‘‘was 

about hackers and how they could access cyber systems’’ 130 and 

‘‘did not get into the various technical aspects of the Cyber world 

or Cyber Security.’’ 131 As a result, some inspectors have obtained 

additional cybersecurity training outside the inspector program.132

Although cybersecurity experts from DHS are available to assist inspectors when appropriate, the Department’s Compliance Branch 

Chief 133 recommends who should ultimately complete RBPS–8.134

This has resulted in additional confusion for the chemical inspectors and has the potential to result in inconsistent compliance inspection results.135

S. 3405 requires GAO to submit a report to Congress on CFATS 

inspector training and how it can be improved. This includes information about how DHS selects inspectors; what training is completed before inspectors are selected as CFATS facility inspectors; 

a review of the qualification standards, on-the-job training, final 

qualification, approval standards, and continuous qualification and 

training; and issues with inspector cybersecurity training and how 

it can be further improved. 

18 

136 Nat’l Academies of Sciences, Engineering, and Medicine, Reducing the Threat of Improvised Explosive Device Attacks by Restricting Access to Explosive Precursor Chemicals 23 

(2017), available at https://www.nap.edu/catalog/24862/reducing-the-threat-of-improvised-explosive-device-attacks-by-restricting-access-to-explosive-precursor-chemicals. 137 Id. at vii. 138 Id. at 2. 139 Chemical Facility Anti-Terrorism Standards, 6 C.F.R. § 27 (2006), available at https:// 

www.dhs.gov/xlibrary/assets/IP_ChemicalFacilitySecurity.pdf. 

Since the CFATS program was authorized in 2006, America’s 

threat environment has changed. According to a recent report by 

the National Academies, ‘‘[b]etween the 1970s and 2000, a series 

of larger vehicle bombs emerged in terrorist attacks with main 

charges in the thousands of pounds range, but in the following decade, bombs with smaller charges like those seen in the 1970s started to appear again. By the 2010s, the use of [homemade explosives] 

in smaller charges was growing.’’ 136 In recent attacks in the U.S. 

and Europe, such as the Boston, Paris, and Brussels, terrorists 

have utilized smaller improvised explosive devices, such as backpack bombs.137 However, ‘‘[p]ast research and regulatory efforts 

have tended to focus on the threat posed by [vehicle-borne improvised explosive devices (IEDs)], but attacks that employ [personborne IEDs] can have and have had serious consequences both domestically and internationally.’’ 138

This legislation requires DHS to provide an annual briefing to 

Congress on current threats to chemical facilities; how bad actors 

are utilizing CFATS chemicals of interest; how CFATS is addressing the threat landscape and making the United States safer; and 

data, rationale, and metrics on how the CFATS program is effectively reducing risk and enhancing security. 

In 2007, DHS completed an initial estimate that predicted the 

CFATS program would regulate 5,000 chemical facilities and have 

an economic cost of $8.5 billion over the period of 2006–2015.139 To 

date, the Department has not completed an updated estimate. This 

legislation requires DHS to complete an updated retrospective estimate on costs to carry out the CFATS program. 

S. 3405 Ends the program after five years 

The Committee continues to believe that putting a sunset on the 

program’s authorization ensures that Congress can periodically review its effectiveness and make any necessary improvements. Accordingly, S. 3405 terminates the CFATS program five years after 

the date of enactment. 

III. LEGISLATIVE HISTORY

On September 4, 2018, Chairman Johnson (R–WI) introduced S. 

3405, Protecting and Securing Chemical Facilities from Terrorists 

Attacks Act of 2018, which was referred to the Committee on 

Homeland Security and Governmental Affairs. Senators Shelley 

Moore Capito (R–WV) and Steve Daines (R–MT) are cosponsors. 

The Committee considered S. 3405 at a business meeting on September 26, 2018. During the business meeting, a modified substitute amendment was offered by Chairman Johnson and accepted 

by unanimous consent. 

Ranking Member McCaskill (D–MO) offered two amendments at 

the business meeting. McCaskill Amendment 1 as modified requires that the Secretary of Homeland Security determine which 

19 

industry stewardship programs can participate in the CFATS Recognition Program. McCaskill Amendment 2 as modified clarified 

that only explosive materials regulated by ATF are exempt from 

CFATS. It also requires the removal of any additional explosive 

material that is designated as a CFATS chemical of interest if it 

becomes regulated by DOJ or ATF in the future. The Committee 

adopted McCaskill Amendment 1 as modified and McCaskill 

Amendment 2 as modified both by voice vote. Senators present for 

the votes on the amendments were: Johnson, Paul, Lankford, Enzi, 

Daines, McCaskill, Heitkamp, Peters, Hassan, Harris, and Jones. 

The Committee favorably reported the bill, as amended, by voice 

vote. Senators present were: Johnson, Portman, Paul, Lankford, 

Enzi, Daines, McCaskill, Heitkamp, Peters, Hassan, Harris, and 

Jones. 

Consistent with Committee Rule 11, the Committee reports the 

bill with a technical amendment by mutual agreement of the 

Chairman and Ranking Member. 

IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title; table of contents 

This section provides the bill’s short title, the ‘‘Protecting and Securing Chemical Facilities from Terrorists Attacks Act of 2018’’, 

and a table of contents. 

Section 2. Definitions 

This section clarifies the definition of the term ‘‘guidance for expedited approval facilities’’. 

Section. 3. Expedited approval program 

This section requires the Secretary of Homeland Security to 

maintain guidance for the expedited approval program. This section also adds language that an owner or operator of a facility 

should consider, but is not required, to utilize the guidance for expedited approval facilities to determine appropriate security measures for site security plans. 

This section also shortens the length of the required notice period 

from 30 days to 7 days before a facility owner or operator may submit their expedited approval site security plan and certification to 

the Department. 

This section also requires that DHS notify all new and currentlycovered CFATS facilities of the expedited approval program. 

Section. 4. CFATS Recognition Program 

This section requires the Secretary of Homeland Security to establish a CFATS recognition program within 270 days of enactment 

that leverages industry stewardship programs to further secure 

covered chemical facilities. It also requires the Secretary to establish criteria for the CFATS recognition program, including industry 

stewardship program eligibility, performance requirements, incentives to encourage participation, and issue guidance. 

This section also requires the Secretary of Homeland Security to 

establish minimum eligibility criteria for industry stewardship programs that would like to participate in the program. The section 

mandates certain requirements, including industry stewardship 

20 

programs be governed by an industry association or technical organization; documentation showing the industry stewardship program’s top management is committed to chemical facility security; 

criteria for program auditing, security vulnerability assessment requirements, Risk-Based Performance Standards incorporated into 

security measures, and required reporting. 

This section also requires the Secretary of Homeland Security to 

establish facility performance requirements. This includes the facility submitting an acknowledgment by its sponsor industry stewardship organization that the facility is a member in good standing 

and in full compliance with the industry stewardship program’s security requirements. It also requires a participating facility to notify the Secretary of Homeland Security if they cease to be in good 

standing or in full compliance with the requirements of the participating industry stewardship program. 

This section requires the Secretary of Homeland Security to establish program incentives for participation in the CFATS Recognition Program, including lowering the occurrence of compliance inspections; streamlining processes for vulnerability assessments and 

site security plans; and providing additional regulatory relief as appropriate. 

Section. 5. Frequency of audits and inspections 

This section limits the frequency of CFATS facility audits and inspections to once every two years for a covered chemical facility 

and once every three years for a covered chemical facility participating in a CFATS recognition program that meets compliance, 

audit, and inspection requirements. 

This section stipulates that the Secretary may only conduct more 

frequent audits and inspections for the following reasons: a covered 

facility has identified planned enhancements that have not been 

verified; DHS identifies a deficiency or infraction that could result 

in an enforcement action against the facility; the Department has 

identified a specific or elevated threat to a chemical facility; a specific incident or suspicious activity occurred at the facility; or the 

Secretary determines there are exigent circumstances requiring an 

inspection or audit. 

Section. 6. Personnel Surety Program 

This section makes terrorist screening provisions under the Personnel Surety Program mandatory for Tier 1 and Tier 2 covered facilities and optional for Tier 3 and Tier 4 covered facilities. 

Section. 7. Security risk assessment approach and corresponding 

tiering methodology 

This section requires the Secretary of Homeland Security to 

maintain additional information on why DHS changed a covered facility’s tier or DHS determines the covered facility should no longer 

be regulated under CFATS. 

Whenever DHS modifies a covered facilities tier or determines 

they should no longer be regulated by the CFATS program, this 

section also requires the Secretary to submit a controlled unclassified explanation for the change to facilities within 30 days. 

21 

Section. 8. Annual performance reporting 

This section requires the Secretary of Homeland Security to report annually to Congress on performance metrics, instead of every 

six months. It also requires DHS to report on how effectively the 

program manages security risks, develops and utilizes metrics, and 

its ability to measure risk reduction over time. 

Section. 9. Specific products and mixtures containing chemicals of 

interest 

This section gives the Secretary of Homeland Security sole and 

unreviewable discretion to review petitions from interested parties 

to remove a covered product or mixture from CFATS regulation if 

the Secretary determines that specific product or mixture does not 

present the same hazards for which the chemical of interest was 

originally designated under CFATS. Within one year of enactment, 

the Secretary must publish regulations on the petition process for 

which an interested party can request for an exclusion of a covered 

product or mixture. 

Section. 10. CFATS regulations 

This section amends and provides technical edits to Section 

2107(b) of the Homeland Security Act of 2002 (6 U.S.C. 627(b)). 

Section. 11. Explosive materials 

This section exempts explosive materials from the CFATS program if they are regulated by the Department of Justice under 

chapter 40 of title 18, United States Code, or by the ATF under 

part 555 of title 27, Code of Federal Regulations. 

This section also requires the Secretary of Homeland Security to 

remove any additional explosive material that is designated as a 

CFATS chemical of interest if it becomes regulated by DOJ or ATF 

in the future. 

Section. 12. Changes to Appendix A to part 27 of title 6, Code of 

Federal Regulations 

This section requires the Secretary of Homeland Security to publish a notice of proposed rulemaking before making changes to Appendix A if the Secretary determines that a chemical should now 

be designated as a CFATS chemical of interest; a chemical of interest under Appendix A should no longer be designated as a CFATS 

chemical of interest; or a CFATS chemical of interest’s amount, 

concentration, or threshold quantity under Appendix A should be 

changed. 

Section. 13. Assessment, report, briefing, and updated retrospective 

estimate on costs 

This section requires a third-party assessment, within one year 

of enactment, to determine how effective the CFATS program is at 

managing security risks, developing and using appropriate metrics 

and analysis capabilities to measure risk reduction, and engaging 

with first responders and emergency planners. Within 90 days of 

the assessment’s completion, the Secretary of Homeland Security 

must provide a briefing on the assessment to the Senate Committee on Homeland Security and Governmental Affairs, House 

22 

Committee on Homeland Security, and House Committee on Energy and Commerce. 

This section requires a GAO report on CFATS inspector training 

and how it can be improved. The report should review how DHS 

selects inspectors; the amount of training completed before inspectors are selected as CFATS facility inspectors; review of qualification standards, on-the-job training, final qualification, approval 

standards, and continuous qualification and training; and improving inspector cybersecurity training. 

This section requires an annual briefing to Congress on current 

threats to chemical facilities; how bad actors are utilizing CFATS 

chemicals of interest; how CFATS is addressing the threat landscape and making the United States safer; and data, rationale, and 

metrics on how the CFATS program is effectively reducing risk and 

enhancing security. 

This section requires the Secretary of Homeland Security to complete an updated retrospective estimate on costs to carry out the 

CFATS program within one year of enactment. This includes costs 

to the Government, regulated entities, and the public. 

Section. 14. Effective date 

This section states that the legislation, any amendments made 

by it, will take effect 30 days after the date of enactment. 

Section. 15. Termination 

This section terminates the CFATS program five years after the 

date of enactment. 

Section. 16. Technical and conforming amendment 

This section provides a technical and conforming amendment. 

V. EVALUATION OF REGULATORY IMPACT

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

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of this bill and determined that the bill will 

have no regulatory impact within the meaning of the rules. The 

Committee agrees with the Congressional Budget Office’s statement that the bill contains no intergovernmental or private-sector 

mandates as defined in the Unfunded Mandates Reform Act 

(UMRA) and would impose no costs on state, local, or tribal governments. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, November 13, 2018. 

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

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 3405, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2018. 

23 

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

to provide them. The CBO staff contact is William Ma. 

Sincerely, 

KEITH HALL, Director. 

Enclosure. 

S. 3405—Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2018 

Summary: S. 3405 would extend for five years the Chemical Facility Anti-Terrorism Standards (CFATS) program. CBO estimates 

that implementing the bill would cost $348 million over the 2019– 

2023 period, assuming appropriation of the estimated amounts. 

CBO also estimates that enacting S. 3405 would increase direct 

spending by $2 million and would increase revenues by an insignificant amount over the 2019–2028 period; therefore, pay-as-yougo procedures apply. 

CBO estimates that enacting S. 3405 would not increase net direct spending or on-budget deficits in any of the four consecutive 

10-year periods beginning in 2029. 

S. 3405 would impose intergovernmental and private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

on operators of chemical facilities by reauthorizing existing security 

standards and duties under the CFATS program. CBO estimates 

the cost of the mandates would fall below the annual intergovernmental and private-sector thresholds established in UMRA ($80 

million and $160 million in 2018, respectively, adjusted annually 

for inflation). 

Estimated cost to the Federal Government: The estimated budgetary effects of S. 3405 are shown in the following table. The costs 

of the legislation fall within budget functions 050 (national defense) 

and 800 (general government). 

By fiscal year, in millions of dollars— 

2019 2020 2021 2022 2023 2019– 

2023 

INCREASES IN SPENDING SUBJECT TO APPROPRIATION a

Estimated Authorization Level .......................................... 60 74 76 79 81 370 

Estimated Outlays ............................................................ 46 69 75 78 80 348 

INCREASES IN DIRECT SPENDING b

Estimated Budget Authority ............................................. 0 0 0 0 0 0 

Estimated Outlays ............................................................ 1 1 0 0 0 2 

Enacting S. 3405 also would increase revenues by an insignificant amount over the 2019–2028 period. 

a. Implementing S. 3405 would require an additional appropriation of $25 million in 2024, CBO estimates. Another $45 million in estimated outlays would occur over the 2024–2028 period, assuming appropriation of the estimated amounts. b. Enacting S. 3405 would increase direct spending by $2 million over the 2019–2028 period. 

Basis of estimate: For this estimate, CBO assumes that S. 3405 

will be enacted near the beginning of calendar year 2019. Outlays 

are based on historical spending patterns for similar programs. 

Spending subject to appropriation 

S. 3405 would extend the CFATS program for five years after the 

date of enactment; the authority to carry out the current program 

will expire in January 2019. Under CFATS, the Department of 

Homeland Security (DHS) regulates security at facilities that manufacture, store, or distribute any of more than 300 chemicals that 

24 

could be used by terrorists to cause mass injury or death. The regulations set minimum standards for perimeter security, access control, personnel security, and cybersecurity to reduce the risk that 

those chemicals could be stolen, released, or sabotaged. DHS provides technical assistance and inspects regulated facilities to ensure that they meet those standards. 

For 2018, the Congress appropriated $72 million for the CFATS 

program. CBO estimates that the reauthorization in the bill would 

cover the last three quarters of fiscal year 2019 through the end 

of the first quarter of fiscal year 2024; thus, the estimated amounts 

for CFATS in fiscal years 2019 and 2024 cover only nine months 

and three months, respectively. On the basis of information from 

DHS, CBO estimates that implementing the program extension 

would cost $346 million over the 2019–2023 period, assuming appropriation of the estimated amounts. Another $45 million would 

be spent after 2023. 

S. 3045 would require the Government Accountability Office and 

DHS to report to the Congress on the CFATS program. CBO estimates that in addition to the costs mentioned above, preparing 

those reports would cost $2 million over the 2019–2023 period, 

CBO estimates. 

Actual costs could differ if the Congress appropriates more or 

less than the amounts estimated here; such decisions could be 

based on information from federal agencies or other sources that 

differs from the information CBO used for this estimate. 

Direct spending 

Section 13 would require DHS to use appropriations that are 

available to the department under current law to obtain a thirdparty assessment of the effectiveness of the CFATS program. CBO 

expects that DHS would spend previously appropriated funds that 

would otherwise not be spent. Changes in outlays from enacted appropriations are classified as direct spending. On the basis of information from DHS, CBO estimates that the study would increase direct spending by $2 million over the 2019–2028 period. 

Revenues 

Reauthorizing the CFATS program also would extend DHS’s authority to levy civil penalties against owners or operators of facilities that fail to comply with orders to correct deficiencies in their 

security plans. Funds collected under that authority are deposited 

in the Treasury and recorded as revenues. CBO estimates that 

DHS would collect less than $500,000 over the 2019–2028 period. 

Pay-As-You-Go considerations: The Statutory Pay-As-You-Go Act 

of 2010 establishes budget-reporting and enforcement procedures 

for legislation affecting direct spending or revenues. The net 

changes in outlays and revenues that are subject to those pay-asyou-go procedures are shown in the following table. 

25 

CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR S. 3405, THE PROTECTING AND SECURING 

CHEMICAL FACILITIES FROM TERRORIST ATTACKS ACT OF 2018, AS ORDERED REPORTED BY 

THE SENATE COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS ON SEPTEMBER 26, 2018 

By fiscal year, in millions of dollars— 

2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2019– 

2023 

2019– 

2028 

NET INCREASE IN THE DEFICIT 

Statutory Pay-As-You-Go Effect .................................. 1 1 0 0 0 0 0 0 0 0 2 2 

Increase in long-term direct spending and deficits: CBO estimates that enacting S. 3405 would not increase net direct spending 

or on-budget deficits in any of the four consecutive 10-year periods 

beginning in 2029. 

Mandates: S. 3405 would impose intergovernmental and privatesector mandates as defined in UMRA on operators of chemical facilities. The bill would reauthorize existing security requirements, 

including vulnerability assessments and site security plans, under 

the CFATS program. Because chemical facilities are already subject to these mandates, the cost to comply with the reauthorization 

would be small. The bill also would introduce alternative processes 

for meeting some requirements and would ease the stringency of 

requirements on lower-risk facilities. These changes would further 

reduce the costliness of the mandates. In total, CBO estimates that 

the cost of the mandates would fall below the annual intergovernmental and private-sector thresholds established in UMRA ($80 

million and $160 million in 2018, respectively, adjusted annually 

for inflation). 

Estimate prepared by: Federal Costs: William Ma; Mandates: Andrew Laughlin. 

Estimate reviewed by: David Newman, Chief, Defense, International Affairs, and Veterans’ Affairs Cost Estimates Unit; Susan 

Willie, Chief, Public and Private Mandates Unit; Leo Lex, Deputy 

Assistant Director for Budget Analysis. 

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

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill, as 

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

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

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

HOMELAND SECURITY ACT OF 2002 

* * * * * * * 

SEC. 1. SHORT TITLE; TABLE OF CONTENTS. 

(a) SHORT TITLE.—This Act may be cited as the ‘‘Homeland Security Act of 2002.’’ 

(b) TABLE OF CONTENTS.—The table of contents for this Act is as 

follows: 

Sec. 1. * * * 

* * * * * * * 

26 

TITLE XXI—CHEMICAL FACILITY ANTI-TERRORISM STANDARDS

* * * * * * * 

Sec. 2103. Protection and sharing of information.ø—¿ 

* * * * * * * 

øSec. 2109. Outreach to chemical facilities of interest.¿ 

Sec. 2109. Explosive materials. 

Sec. 2110. Changes to Appendix A to part 27 of title 6, Code of Federal Regulations. 

* * * * * * * 

TITLE XXI—CHEMICAL FACILITY ANTITERRORISM STANDARDS 

SEC. 2101. DEFINITIONS. 

In this title— 

(1) * * * 

* * * * * * * 

(8) the term ‘‘guidance for expedited approval facilities’’ 

means the guidance issued under øsection 2102(c)(4)(B)(i)¿ section 2102(c)(4) by the Secretary that identifies specific security 

measures that are sufficient to meet the risk-based performance 

standards for facilities in tiers 3 and 4 that elect to utilize the 

expedited approval program; 

* * * * * * * 

SEC. 2102. CHEMICAL FACILITY ANTI-TERRORISM STANDARDS PROGRAM. 

(a) * * * 

(b) * * * 

(c) APPROVAL OR DISAPPROVAL OF SITE SECURITY PLANS.— 

(1) * * * 

* * * * * * * 

(4) EXPEDITED APPROVAL PROGRAM.— 

(A) IN GENERAL.—A covered chemical facility assigned to 

tier 3 or 4 may meet the requirement to develop and submit a site security plan under subsection (a)(2)(D) by developing and submitting to the Secretary— 

(i) a site security plan and the certification described 

in øsubparagraph (C)¿ subparagraph (C)(i); or 

(ii) * * * 

(B) GUIDANCE FOR EXPEDITED APPROVAL FACILITIES.— (i) IN GENERAL.—øNot later than 180 days after the 

date of enactment of the Protecting and Securing 

Chemical Facilities from Terrorist Attacks Act of 2014, 

the Secretary shall issue¿ The secretary shall maintain guidance for expedited approval facilities that 

identifies specific security measures that are sufficient 

to meet the risk-based performance standards. 

(ii) * * * 

ø(iii) APPLICABILITY OF OTHER LAWS TO DEVELOPMENT AND ISSUANCE OF INITIAL GUIDANCE.—During 

the period before the Secretary has met the deadline 

under clause (i), in developing and issuing, or amending, the guidance for expedited approval facilities 

27 

under this subparagraph and in collecting information 

from expedited approval facilities, the Secretary shall 

not be subject to— 

ø(I) section 553 of title 5, United States Code; 

ø(II) subchapter I of chapter 35 of title 44, 

United States Code; or 

ø(III) section 2107(b) of this title.¿ 

(C) CERTIFICATION.—øThe owner¿ 

(i) IN GENERAL.—The owner or operator of an expedited approval facility shall submit to the Secretary a 

certification, signed under penalty of perjury, that— 

ø(i)¿ (I) the owner or operator is familiar with 

the requirements of this title and part 27 of title 

6, Code of Federal Regulations, or any successor 

thereto, and the site security plan being submitted; 

ø(ii)¿ (II) the site security plan includes the security measures required by subsection (b); 

ø(iii)¿ (III) 

ø(I)¿ (aa) the security measures in the site security plan do not materially deviate from the guidance for expedited approval facilities except where 

indicated in the site security plan; 

ø(II)¿ (bb) any deviations from the guidance for 

expedited approval facilities in the site security 

plan meet the risk-based performance standards 

for the tier to which the facility is assigned; and 

ø(III)¿ (cc) the owner or operator has provided 

an explanation of how the site security plan meets 

the risk-based performance standards for any material deviation; 

ø(iv)¿ (IV) the owner or operator has visited, examined, documented, and verified that the expedited approval facility meets the criteria set forth 

in the site security plan; 

ø(v)¿ (V) the expedited approval facility has implemented all of the required performance measures outlined in the site security plan or set out 

planned measures that will be implemented within a reasonable time period stated in the site security plan; 

ø(vi)¿ (VI) each individual responsible for implementing the site security plan has been made 

aware of the requirements relevant to the individual’s responsibility contained in the site security 

plan and has demonstrated competency to carry 

out those requirements; 

ø(vii)¿ (VII) the owner or operator has committed, or, in the case of planned measures will 

commit, the necessary resources to fully implement the site security plan; and 

ø(viii)¿ (VIII) the planned measures include an 

adequate procedure for addressing events beyond 

the control of the owner or operator in implementing any planned measures. 

28 

(ii) RISK-BASED PERFORMANCE STANDARDS.—In submitting a site security plan and certification under 

subparagraph (A)(i), an owner or operator of an expedited approval facility should consider using the guidance for expedited approval facilities to determine appropriate measures for the site security plan of the expedited approval facility. 

(D) DEADLINE.— 

(i) IN GENERAL.—Not later than 120 days after the 

date described in clause (ii), the owner or operator of 

an expedited approval facility shall submit to the Secretary the site security plan and the certification described in øsubparagraph (C)¿ subparagraph (C)(i). 

(ii) * * * 

(iii) NOTICE.—An owner or operator of an expedited 

approval facility shall notify the Secretary of the intent of the owner or operator to certify the site security plan for the expedited approval facility not later 

than ø30¿ 7 days before the date on which the owner 

or operator submits the site security plan and certification described in øsubparagraph (C)¿ subparagraph 

(C)(i). 

(E) * * * 

(F) AMENDMENTS TO SITE SECURITY PLAN.— 

(i) REQUIREMENT.— 

(I) IN GENERAL.—If the owner or operator of an 

expedited approval facility amends a site security 

plan submitted under subparagraph (A), the 

owner or operator shall submit the amended site 

security plan and a certification relating to the 

amended site security plan that contains the information described in øsubparagraph (C)¿ subparagraph (C)(i). 

(II) * * * 

(G) * * * 

(H) * * * 

ø(I) EVALUATION.— 

ø(i) IN GENERAL.—Not later than 18 months after 

the date of enactment of the Protecting and Securing 

Chemical Facilities from Terrorist Attacks Act of 2014, 

the Secretary shall take any appropriate action necessary for a full evaluation of the expedited approval 

program authorized under this paragraph, including 

conducting an appropriate number of inspections, as 

authorized under subsection (d), of expedited approval 

facilities. 

ø(ii) REPORT.—Not later than 18 months after the 

date of enactment of the Protecting and Securing 

Chemical Facilities from Terrorist Attacks Act of 2014, 

the Secretary shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate 

and the Committee on Homeland Security and the 

Committee on Energy and Commerce of the House of 

Representatives a report that contains— 

29 

ø(I)(aa) the number of eligible facilities using 

the expedited approval program authorized under 

this paragraph; and 

ø(bb) the number of facilities that are eligible 

for the expedited approval program but are using 

the standard process for developing and submitting a site security plan under subsection 

(a)(2)(D); 

ø(II) any costs and efficiencies associated with 

the expedited approval program; 

ø(III) the impact of the expedited approval program on the backlog for site security plan approval and authorization inspections; 

ø(IV) an assessment of the ability of expedited 

approval facilities to submit facially sufficient site 

security plans; 

ø(V) an assessment of any impact of the expedited approval program on the security of chemical facilities; and 

ø(VI) a recommendation by the Secretary on the 

frequency of compliance inspections that may be 

required for expedited approval facilities.¿ 

(I) NOTICE BY THE SECRETARY.—The Secretary shall provide notice to each covered chemical facility of the expedited 

approval program under this paragraph. 

(5) CFATS RECOGNITION PROGRAM.— (A) DEFINITIONS.—In this paragraph— 

(i) the term ‘‘CFATS Recognition Program’’ means 

the program established under subparagraph (B); 

(ii) the term ‘‘participating facility’’ means a covered 

chemical facility that is a member of a participating 

industry stewardship program; 

(iii) the term ‘‘participating industry stewardship 

program’’ means an industry stewardship program 

that— 

(I) meets the eligibility requirements under subparagraph (C)(i); and 

(II) is accepted by the Secretary to participate in 

the CFATS Recognition Program; and 

(iv) the term ‘‘sponsor organization’’ means the governing body of a participating industry stewardship 

program. 

(B) ESTABLISHMENT.— 

(i) IN GENERAL.—Not later than 270 days after the 

date of enactment of this paragraph, the Secretary 

shall establish a program that shall be known as the 

CFATS Recognition Program— 

(I) with the goal of leveraging CFATS regulations and industry stewardship programs to further enhance security relating to hazardous chemicals; and 

(II) under which the Secretary shall— 

(aa) establish— 

(AA) eligibility criteria under subparagraph (C)(i) for industry stewardship proVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00031 Fmt 6659 Sfmt 6603 E:\HR\OC\SR384.XXX SR384
30 

grams seeking to Participate in the 

CFATS Recognition Program; and 

(BB) performance requirements under 

subparagraph(C)(ii) for participating facilities; 

(bb) provide incentives under subparagraph(C)(iii) to Encourage participation in the 

CFATS Recognition Program; and 

(cc) issue such guidance as the Secretary 

deems necessary or appropriate for the implementation of the CFATS Recognition Program. 

(ii) APPLICABILITY OF OTHER LAWS.—During the period before the Secretary has met the deadline under 

clause (i), in developing and issuing, or amending, the 

guidance relating to carrying out the CFATS Recognition Program and collecting information from industry 

stewardship programs, sponsor organizations, and participating facilities, the Secretary shall not be subject 

to— 

(I) section 553 of title 5, United States Code; 

(II) subchapter I of chapter 35 of title 44, United 

States Code; or 

(III) section 2107(b) of this Act. 

(C) ELIGIBILITY CRITERIA; FACILITY PERFORMANCE REQUIREMENTS; INCENTIVES.— 

(i) ELIGIBILITY CRITERIA FOR INDUSTRY STEWARDSHIP

PROGRAMS.—Not later than 270 days after the date of 

enactment of this paragraph, the Secretary shall establish minimum eligibility criteria for industry stewardship programs desiring to be considered by the Secretary for participation in the CFATS Recognition Program that shall include— 

(I) a requirement that any industry stewardship 

program desiring to participate in the CFATS Recognition Program be governed by an industry association or technical organization that is an entity 

described in paragraph (3) or (6) of section 501(c) 

of the Internal Revenue Code of 1986; 

(II) a documented top management commitment 

to chemical facility security; 

(III) criteria relating to— 

(aa) program auditing requirements and frequency; 

(bb) security vulnerability assessment requirements and frequency; and 

(cc) security measures that align with the 

risk-based performance standards established 

under subsection (a)(2)(C), including— 

(AA) detection measures; 

(BB) delay measures; 

(CC) cybersecurity measures; 

(DD) response measures; and 

(EE) security management; and 

31 

(dd) reporting required to be done by any industry stewardship program desiring to participate in the CFATS Recognition Program. 

(ii) PERFORMANCE REQUIREMENTS FOR PARTICI- PATING FACILITIES.—The Secretary shall require that 

each participating facility— 

(I) submit an acknowledgment by the sponsor organization of the participating industry steward 

program, of which the participating facility is a 

member, that the participating facility is— 

(aa) a member in good standing of the participating industry stewardship program; and 

(bb) in full compliance with the requirements of the participating industry stewardship program; and 

(II) promptly notify the Secretary if the participating facility ceases to be— 

(aa) a member in good standing of the participating industry stewardship program; or 

(bb) in full compliance with the requirements of the participating industry stewardship program. 

(iii) PROGRAM INCENTIVES.—Not later than 270 days 

after the date of enactment of this paragraph, the Secretary shall— 

(I) establish incentives for participation in the 

CFATS Recognition Program, which shall include— 

(aa) a reduction in the frequency of compliance inspections, except— 

(AA) in the case of any inspection relating to any planned measure in the site security plan of a participating facility that 

has not been fully implemented; or 

(BB) in a case in which a participating 

facility is not in full compliance with the 

requirements under the Chemical Facility 

Anti-Terrorism Standards Program; 

(bb) streamlined vulnerability assessment 

and site security plan processes; and 

(cc) any other regulatory relief as determined appropriate by the Secretary; and 

(II) provide written guidance on any incentive established under subclause (I). 

(D) EVALUATION.—Not later than 1 year after the date on 

which the CFATS Recognition Program is established 

under subparagraph (B)(i), the Secretary shall provide a 

briefing to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committees on 

Homeland Security and Energy and Commerce of the 

House of Representatives on the progress in carrying out 

the CFATS Recognition Program. 

(d) COMPLIANCE.— 

(1) AUDITS AND INSPECTIONS.— 

(A) * * * 

32 

(B) AUTHORITY TO CONDUCT AUDITS AND INSPECTIONS.— 

øThe Secretary¿ Subject to subparagraph (G), the Secretary shall conduct audits or inspections under this subchapter using— 

(i) * * * 

(ii) * * * 

(iii) * * * 

* * * * * * * 

(G) FREQUENCY OF AUDITS AND INSPECTIONS.— 

(i) IN GENERAL.—Except as provided in clauses (ii) 

and (iii), the Secretary may not conduct any audit or 

inspection under this paragraph of a covered chemical 

facility more frequently than once every 2 years. 

(ii) CFATS RECOGNITION PROGRAM.—Except as provided in clause (iii), in the case of a covered chemical 

facility that participates in the CFATS Recognition 

Program under subsection (c)(5) and meets compliance, 

audit, and inspection requirements under that program, the Secretary may not conduct any audit or inspection under this paragraph of that covered chemical 

facility more frequently than once every 3 years. 

(iii) INCREASED FREQUENCY OF AUDITS AND INSPECTIONS.—The Secretary may conduct audits and inspections more frequently than provided in clauses (i) and 

(ii) when— 

(I) the covered chemical facility has identified 

planned enhancements that have not yet been validated by an audit or inspection; 

(II) a deficiency or infraction at the covered 

chemical facility has been identified that may result in an enforcement action against the covered 

chemical facility; 

(III) an elevated or specific threat has been identified; 

(IV) a security incident or suspicious activity has 

occurred at the covered chemical facility; or 

(V) the Secretary determines that an inspection 

or audit is warranted by exigent circumstances. 

(2) PERSONNEL SURETY.— 

(A) PERSONNEL SURETY PROGRAM.—For purposes of this 

title, the Secretary shall establish and carry out a Personnel Surety Program that is mandatory for each owner 

or operator of a covered chemical facility assigned to tier 1 

or 2 and optional for each owner or operator of a covered 

chemical facility assigned to tier 3 or 4 that— 

(i) * * * 

(ii) provides a participating owner or operator of a 

covered chemical facility with relevant information 

about an individual who will have access to any chemical of interest designated under Appendix A to part 27 

of title 6, Code of Federal Regulations, or any successor 

thereto, based on vetting the individual against the 

terrorist screening database, to the extent that such 

feedback is necessary for the facility to be in compliVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00034 Fmt 6659 Sfmt 6602 E:\HR\OC\SR384.XXX SR384
33 

ance with regulations promulgated under this title; 

and 

* * * * * * * 

(e) RESPONSIBILITIES OF THE SECRETARY.— (1) * * * 

(2) RISK ASSESSMENT.— (A) IN GENERAL.—For purposes of this title, the Secretary shall ødevelop¿ maintain a security risk assessment 

approach and corresponding tiering methodology for covered chemical facilities that incorporates the relevant elements of risk, including threat, vulnerability, and consequence. 

(B) * * * 

(3) CHANGES IN TIERING.— (A) * * * 

(B) REQUIRED INFORMATION.—The records maintained 

under subparagraph (A) shall include information on 

whether and how the Secretary confirmed the information 

that was the basis for the change or determination described in subparagraph (A)ø.¿, including— (i) each input and assumption under the tiering 

methodology; 

(ii) the rationale for each input; and 

(iii) the output of the tiering methodology. 

(C) REPORTS.—Not later than 30 days after the Secretary 

makes a determination that tiering for a covered chemical 

facility is changed, or that a covered chemical facility is no 

longer subject to the requirements under this title, the Secretary shall submit to the owner or operator of the covered 

chemical facility a written report that contains— 

(i) the information described in subparagraphs (A) 

and (B); and 

(ii) a controlled unclassified statement— 

(I) of the criteria under paragraph (2)(B) and 

how the security risk of terrorism associated with 

the covered chemical facility was evaluated under 

those criteria; and 

(II) that includes any chemical terrorism vulnerability information (as defined in section 27.105 of 

title 6, Code of Federal Regulations, or any successor thereto) relating to the determination. 

(D) PUBLIC DISCLOSURE.—Reports submitted to the owner 

or operator of the covered chemical facility to which the report pertains under subparagraph (C) shall be protected 

from public disclosure under section 2103. 

(4) øSEMIANNUAL¿ ANNUAL PERFORMANCE REPORTING—Not 

later than ø6 months after the date¿ 1 year after the date of 

enactment of the Protecting and Securing Chemical Facilities 

from Terrorist Attacks Act of ø2014¿ 2018, and not less frequently than øonce every 6 months¿ once each year thereafter, 

the Secretary shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security and the Committee on Energy 

and Commerce of the House of Representatives a report that 

includes, for the period covered by the report— 

34 

(A) * * * 

(B) * * * 

ø(C) the average number of days spent reviewing site security or an alternative security program for a covered 

chemical facility prior to approval;¿ 

ø(D)¿ (C) the number of covered chemical facilities inspected; 

(D) the effectiveness of the Chemical Facility Anti-Terrorism Standards Program at— 

(i) managing security risks; and 

(ii) developing and using appropriate metrics and 

analysis capabilities to measure risk reduction, including— 

(I) vulnerability and consequence mitigation indicators; and 

(II) outcome metrics that measure cumulative 

risk reduction over time; and 

ø(E) the average number of covered chemical facilities 

inspected per inspector; and¿ 

ø(F)¿ (E) any other information that the Secretary determines will be helpful to Congress in evaluating the performance of the Chemical Facility Anti-Terrorism Standards Program. 

(5) SPECIFIC PRODUCTS AND MIXTURES CONTAINING CHEMICALS OF INTEREST.— 

(A) DEFINITIONS.—In this paragraph— 

(i) the term ‘‘chemical of interest’’ means a chemical 

designated as a chemical of interest under Appendix A 

to part 27 of title 6, Code of Federal Regulations, or 

any successor thereto; and 

(ii) the term ‘‘covered product or mixture’’ means a 

specific product or mixture that contains a chemical of 

interest at or above the minimum concentration listed 

under Appendix A to part 27 of title 6, Code of Federal 

Regulations, or any successor thereto. 

(B) IN GENERAL.—The Secretary may exclude a covered 

product or mixture from the designation as a chemical of 

interest for the purposes of the definition of the term ‘‘chemical facility of interest’’ if, in the sole and unreviewable discretion of the Secretary, the Secretary determines that the 

covered product or mixture does not present the same hazards for which the chemical of interest contained in the covered product or mixture was designated as a chemical of 

interest. 

(C) REGULATIONS.— 

(i) PROMULGATION.—Not later than 1 year after the 

date of enactment of this paragraph, the Secretary 

shall promulgate regulations to prescribe a process 

under which an interested party may petition the Secretary for exclusion of a covered product or mixture 

under subparagraph (B). 

(ii) FEDERAL INFORMATION POLICY.—In collecting information from petitioners pursuant to this subparaVerDate Sep 11 2014 02:11 Dec 06, 2018 Jkt 089010 PO 00000 Frm 00036 Fmt 6659 Sfmt 6603 E:\HR\OC\SR384.XXX SR384
35 

graph, the Secretary shall not be subject to subchapter 

I of chapter 35 of title 44, United States Code. 

* * * * * * * 

SEC. 2107. CFATS REGULATIONS. 

(a) * * * 

(b) EXISTING CFATS REGULATIONS.— 

(1) IN GENERAL.—Notwithstanding section 4(b) of the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (Public Law 113–254; 128 Stat. 2919), each 

existing CFATS regulation shall remain in effect unless the 

Secretary amends, consolidates, or repeals the regulation. 

(2) REPEAL.—Not later than 30 days after the date of enactment of the Protecting and Securing Chemical Facilities from 

Terrorist Attacks Act of ø2014¿ 2018, the Secretary shall repeal any existing CFATS regulation that the Secretary determines is duplicative of, or conflicts with, this title. 

(c) * * * 

* * * * * * * 

øSEC. 2109. OUTREACH TO CHEMICAL FACILITIES OF INTEREST. 

øNot later than 90 days after the date of enactment of the Protecting and Securing Chemical Facilities from Terrorist Attacks Act 

of 2014, the Secretary shall establish an outreach implementation 

plan, in coordination with the heads of other appropriate Federal 

and State agencies, relevant business associations, and public and 

private labor organizations, to— 

ø(1) identify chemical facilities of interest; and 

ø(2) make available compliance assistance materials and information on education and training.¿ 

SEC. 2109. EXPLOSIVE MATERIALS. 

(a) IN GENERAL.—The Secretary may not designate any explosive 

material regulated by the Department of Justice under chapter 40 

of title 18, United States Code, or by the Bureau of Alcohol, Tobacco, Firearms, and Explosives under part 555 of title 27, Code of 

Federal Regulations, as a chemical of interest under Appendix A to 

part 27 of title 6, Code of Federal Regulations, or any successor 

thereto. 

(b) EXPLOSIVE MATERIAL REGULATED AFTER DESIGNATION.—If 

any explosive material that is designated as a chemical of interest 

under Appendix A to part 27 of title 6, Code of Federal Regulations, 

or any successor thereto, becomes regulated by the Department of 

Justice under chapter 40 of title 18, United States Code, or by the 

Bureau of Alcohol, Tobacco, Firearms, and Explosives under part 

555 of title 27, Code of Federal Regulations, or any successor thereto, the Secretary shall remove the designation of such explosive material as a chemical of interest. 

SEC. 2110. CHANGES TO APPENDIX A TO PART 27 OF TITLE 6, CODE OF 

FEDERAL REGULATIONS. 

(a) DEFINITION.—In this section, the term ‘‘Appendix A’’ means 

Appendix A to part 27 of title 6, Code of Federal Regulations, or any 

successor thereto. 

(b) NOTICE OF PROPOSED RULEMAKING.—The Secretary shall publish a notice of proposed rulemaking in the Federal Register relating 

36 

to any proposed change to Appendix A if the Secretary determines 

that— 

(1) a chemical should be designated as a chemical of interest 

under Appendix A; 

(2) a chemical designated as a chemical of interest under Appendix A should not be so designated; or 

(3) a chemical amount, concentration, or threshold quantity 

described in Appendix A should be modified. 

Æ