I 

110TH CONGRESS 

2D SESSION H. R. 5577 

To amend the Homeland Security Act of 2002 to extend, modify, and recodify 

the authority of the Secretary of Homeland Security to enhance security 

and protect against acts of terrorism against chemical facilities, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 11, 2008 

Mr. THOMPSON of Mississippi (for himself, Ms. JACKSON-LEE of Texas, Mr. 

MARKEY, Ms. LORETTA SANCHEZ of California, Mr. DICKS, Ms. HARMAN, Mr. DEFAZIO, Mrs. LOWEY, Ms. NORTON, Ms. ZOE LOFGREN of 

California, Mrs. CHRISTENSEN, Mr. ETHERIDGE, Mr. LANGEVIN, Mr. 

CUELLAR, Mr. CARNEY, Ms. CLARKE, Mr. AL GREEN of Texas, Mr. 

PERLMUTTER, and Mr. PASCRELL) introduced the following bill; which 

was referred to the Committee on Homeland Security, and in addition to 

the Committee on Energy and Commerce, for a period to be subsequently 

determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Homeland Security Act of 2002 to extend, 

modify, and recodify the authority of the Secretary of 

Homeland Security to enhance security and protect 

against acts of terrorism against chemical facilities, and 

for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Chemical Facility Anti3 Terrorism Act of 2008’’. 

4 SEC. 2. FINDINGS AND PURPOSE. 

5 (a) FINDINGS.—Congress makes the following find6 ings: 

7 (1) The Nation’s chemical sector represents a 

8 target that terrorists could exploit to cause con9 sequences, including death, injury, or serious adverse 

10 effects to human health, the environment, critical in11 frastructure, national security, the national econ12 omy, and public welfare. 

13 (2) Chemical facilities that pose such potential 

14 consequences and that are vulnerable to terrorist at15 tacks must be protected. 

16 (3) The Secretary of Homeland Security has 

17 statutory authority pursuant to section 550 of the 

18 Department of Homeland Security Appropriations 

19 Act, 2007 (Public Law 109–295) to regulate the se20 curity practices at chemical facilities that are at sig21 nificant risk of being terrorist targets. 

22 (4) The Secretary of Homeland Security issued 

23 interim final regulations called the Chemical Facility 

24 Anti-Terrorism Standards (hereinafter referred to in 

25 this section as ‘‘CFATS’’), which became effective 

26 on June 8, 2007. 


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1 (5) Such regulations, which are in the process 

2 of being implemented by the Secretary, largely ad3 dress the concerns of Congress with respect to chem4 ical facility security. 

5 (6) However, under current law, the statutory 

6 authority of the Secretary of Homeland Security to 

7 regulate security practices at chemical facilities and 

8 the CFATS regulations will sunset in October of 

9 2009. 

10 (b) PURPOSE.—The purpose of this Act is to give 

11 permanent status to the CFATS regulations and to pro12 vide additional Congressional guidance for the future im13 plementation of such regulations. 

14 SEC. 3. SENSE OF CONGRESS. 

15 (a) SENSE OF CONGRESS WITH RESPECT TO CFATS 

16 REGULATIONS.—It is the sense of Congress that— 

17 (1) the Secretary of Homeland Security should 

18 develop and administer all requirements of this Act 

19 to extend and modify the regulations called the 

20 Chemical Facility Anti-Terrorism Standards (herein21 after referred to in this section as ‘‘CFATS’’), as in 

22 effect on the date of the enactment of this Act; and 

23 (2) in carrying out this Act, the Secretary 

24 should use such rules, regulations, or tools developed 

25 for purposes of the CFATS regulations as the SecVerDate Aug 31 2005 03:47 Mar 12, 2008 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5577.IH H5577

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1 retary determines are appropriate, including the list 

2 of chemicals of concern under Appendix A and the 

3 Top Screen tool used to determine which facilities 

4 are covered facilities under such regulations. 

5 (b) SENSE OF CONGRESS WITH RESPECT TO CHEM6 ICAL SECURITY.—It is the sense of Congress that— 

7 (1) the Secretary of Homeland Security should 

8 take a holistic approach to securing sources of 

9 chemicals against a terrorist attack, which should 

10 not only secure the physical facilities at which haz11 ardous chemicals are stored or manufactured, but 

12 should also secure the supply chain of such chemi13 cals; and 

14 (2) in keeping with the direction that Congress 

15 has previously issued to the Secretary to address 

16 various aspects of the supply of hazardous chemi17 cals, the Secretary should expediently exercise the 

18 Secretary’s existing authority to ensure that by fo19 cusing on chemicals at fixed-site facilities, risk is not 

20 transferred to other potential sources of such chemi21 cals. 


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1 SEC. 4. EXTENSION, MODIFICATION, AND RECODIFICATION 

2 OF AUTHORITY OF SECRETARY OF HOME3 LAND SECURITY TO REGULATE SECURITY 

4 PRACTICES AT CHEMICAL FACILITIES. 

5 (a) IN GENERAL.—The Homeland Security Act of 

6 2002 (6 U.S.C. 101 et seq.) is amended by adding at the 

7 end the following new title: 

8 ‘‘TITLE XXI—REGULATION OF SE9 CURITY PRACTICES AT CHEM10 ICAL FACILITIES 

11 ‘‘SEC. 2101. DEFINITIONS. 

12 ‘‘In this title, the following definitions apply: 

13 ‘‘(1) The term ‘chemical facility’ means any fa14 cility— 

15 ‘‘(A) at which a chemical is or may be 

16 used, stored, manufactured, processed or dis17 tributed; and 

18 ‘‘(B) for which the Secretary requires the 

19 owner or operator of the chemical facility to 

20 submit information pursuant to section 

21 2102(b)(2). 

22 ‘‘(2) The term ‘chemical facility security per23 formance standard’ means a risk-based standard es24 tablished by the Secretary to ensure or enhance the 

25 security of a chemical facility against a chemical fa26 cility terrorist incident that is designed to address— 


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1 ‘‘(A) restricting the area perimeter; 

2 ‘‘(B) securing site assets; 

3 ‘‘(C) screening and controlling access to 

4 the facility and to restricted areas within the 

5 facility by screening or inspecting individuals 

6 and vehicles as they enter, including— 

7 ‘‘(i) measures to deter the unauthor8 ized introduction of dangerous substances 

9 and devices that may facilitate a chemical 

10 facility terrorist incident or actions having 

11 serious negative consequences for the pop12 ulation surrounding the chemical facility; 

13 and 

14 ‘‘(ii) measures implementing a regu15 larly updated identification system that 

16 checks the identification of chemical facil17 ity personnel and other persons seeking ac18 cess to the chemical facility and that dis19 courages abuse through established dis20 ciplinary measures; 

21 ‘‘(D) methods to deter, detect, and delay a 

22 chemical facility terrorist incident, creating suf23 ficient time between detection of a chemical fa24 cility terrorist incident and the point at which 


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1 the chemical facility terrorist incident becomes 

2 successful, including measures to— 

3 ‘‘(i) deter vehicles from penetrating 

4 the chemical facility perimeter, gaining un5 authorized access to restricted areas, or 

6 otherwise presenting a hazard to poten7 tially critical targets; 

8 ‘‘(ii) deter chemical facility terrorist 

9 incidents through visible, professional, well10 maintained security measures and systems, 

11 including security personnel, detection sys12 tems, barriers and barricades, and hard13 ened or reduced value targets; 

14 ‘‘(iii) detect chemical facility terrorist 

15 incidents at early stages through counter 

16 surveillance, frustration of opportunity to 

17 observe potential targets, surveillance and 

18 sensing systems, and barriers and barri19 cades; and 

20 ‘‘(iv) delay a chemical facility terrorist 

21 incident for a sufficient period of time so 

22 as to allow appropriate response through 

23 on-site security response, barriers and bar24 ricades, hardened targets, and well-coordi25 nated response planning; 


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1 ‘‘(E) securing and monitoring the shipping, 

2 receipt, and storage of a substance of concern 

3 for the chemical facility; 

4 ‘‘(F) deterring theft or diversion of a sub5 stance of concern; 

6 ‘‘(G) deterring insider sabotage; 

7 ‘‘(H) deterring cyber sabotage, including 

8 by preventing unauthorized onsite or remote ac9 cess to critical process controls, including super10 visory control and data acquisition systems, dis11 tributed control systems, process control sys12 tems, industrial control systems, critical busi13 ness systems, and other sensitive computerized 

14 systems; 

15 ‘‘(I) developing an emergency plan to re16 spond to chemical facility terrorist incidents 

17 with the guidance of the Secretary that in18 cludes, as appropriate, an early warning system 

19 for local emergency response providers and the 

20 community surrounding the facility, and exer21 cising such plan internally and with the assist22 ance of local law enforcement officials and 

23 emergency response providers to enhance the 

24 collective response to terrorism; 


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1 ‘‘(J) maintaining effective monitoring, 

2 communications, and warning systems, includ3 ing— 

4 ‘‘(i) measures designed to ensure that 

5 security systems and equipment are in 

6 good working order and inspected, tested, 

7 calibrated, and otherwise maintained; 

8 ‘‘(ii) measures designed to regularly 

9 test security systems, note deficiencies, 

10 correct for detected deficiencies, and record 

11 results so that they are available for in12 spection by the Department; and 

13 ‘‘(iii) measures to allow the chemical 

14 facility to promptly identify and respond to 

15 security system and equipment failures or 

16 malfunctions; 

17 ‘‘(K) ensuring mandatory annual security 

18 training, exercises, and drills of chemical facil19 ity personnel; 

20 ‘‘(L) performing personnel surety for indi21 viduals with access to restricted areas or critical 

22 assets by conducting appropriate background 

23 checks and ensuring appropriate credentials for 

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1 sonnel, temporary personnel, and contract per2 sonnel, including— 

3 ‘‘(i) measures designed to verify and 

4 validate identity; 

5 ‘‘(ii) measures designed to check 

6 criminal history; 

7 ‘‘(iii) measures designed to verify and 

8 validate legal authorization to work; and 

9 ‘‘(iv) measures designed to identify 

10 people with terrorist ties; 

11 ‘‘(M) escalating the level of protective 

12 measures for periods of elevated threat; 

13 ‘‘(N) specific threats, vulnerabilities, or 

14 risks identified by the Secretary for that chem15 ical facility; 

16 ‘‘(O) reporting of significant security inci17 dents to the Department and to appropriate 

18 local law enforcement officials; 

19 ‘‘(P) identifying, investigating, reporting, 

20 and maintaining records of significant security 

21 incidents and suspicious activities in or near the 

22 site; 

23 ‘‘(Q) establishing one or more officials and 

24 an organization responsible for security and for 

25 compliance with these standards; 


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1 ‘‘(R) maintaining appropriate records re2 lating to the security of the facility; 

3 ‘‘(S) assessing, as appropriate, or utilizing 

4 methods to reduce the consequences of a ter5 rorist attack; or 

6 ‘‘(T) any additional security performance 

7 standards the Secretary may specify. 

8 ‘‘(3) The term ‘chemical facility terrorist inci9 dent’ means an act or attempted act of terrorism 

10 committed at, near, or against a chemical facility, 

11 including— 

12 ‘‘(A) the release of a substance of concern 

13 from a chemical facility into the surrounding 

14 area as a consequence of an act of terrorism; 

15 ‘‘(B) the obtaining of a substance of con16 cern by any person for the purpose of using the 

17 substance at a location other than the chemical 

18 facility in furtherance of an act of terrorism; or 

19 ‘‘(C) the sabotage of a chemical facility or 

20 a substance of concern at a chemical facility in 

21 furtherance of an act of terrorism. 

22 ‘‘(4) The term ‘employee representative’ means 

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1 lationship with a private or public owner or operator 

2 of a chemical facility. 

3 ‘‘(5) The term ‘covered individual’ means a per4 manent, temporary, full-time, or part-time employee 

5 of a covered chemical facility or an employee of an 

6 entity with which the covered chemical facility has 

7 entered into a contract who is performing respon8 sibilities at the facility pursuant to the contract. 

9 ‘‘(6) The term ‘covered chemical facility’ means 

10 a chemical facility that the Secretary assigns to a 

11 risk-based tier under section 2102(c) that is re12 quired to submit a security vulnerability assessment 

13 and site security plan under section 2103. 

14 ‘‘(7) The term ‘environment’ has the meaning 

15 given the term in section 101 of the Comprehensive 

16 Environmental Response Compensation and Liability 

17 Act of 1980 (42 U.S.C. 9601). 

18 ‘‘(8) The term ‘owner or operator of a chemical 

19 facility’ means any of the following: 

20 ‘‘(A) The person who owns a chemical fa21 cility. 

22 ‘‘(B) The person who leases such a facility. 

23 ‘‘(C) The person who operates such a facil24 ity. 


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1 ‘‘(9) The term ‘release’ has the meaning given 

2 the term in section 101 of the Comprehensive Envi3 ronmental Response Compensation and Liability Act 

4 of 1980 (42 U.S.C. 9601). 

5 ‘‘(10) The term ‘substance of concern’ means a 

6 chemical substance in quantity and form that is des7 ignated by the Secretary under section 2102(a) as a 

8 chemical substance that poses a risk of being used 

9 in furtherance of a chemical facility terrorist inci10 dent. 

11 ‘‘(11) The term ‘method to reduce the con12 sequences of a terrorist attack’ includes— 

13 ‘‘(A) input substitution; 

14 ‘‘(B) catalyst or carrier substitution; 

15 ‘‘(C) process redesign (including reuse or 

16 recycling of a substance of concern); 

17 ‘‘(D) product reformulation; 

18 ‘‘(E) procedure simplification; 

19 ‘‘(F) technology modification; 

20 ‘‘(G) use of less hazardous substances or 

21 benign substances; 

22 ‘‘(H) use of smaller quantities of sub23 stances of concern; 

24 ‘‘(I) reduction of hazardous pressures or 

25 temperatures; 


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1 ‘‘(J) reduction of the possibility and poten2 tial consequences of equipment failure and 

3 human error; 

4 ‘‘(K) improvement of inventory control and 

5 chemical use efficiency; and 

6 ‘‘(L) reduction or elimination of the stor7 age, transportation, handling, disposal, and dis8 charge of substances of concern. 

9 ‘‘SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF 

10 CHEMICAL FACILITIES. 

11 ‘‘(a) SUBSTANCES OF CONCERN.— 

12 ‘‘(1) DESIGNATION BY THE SECRETARY.—The 

13 Secretary may designate any chemical substance as 

14 a substance of concern and establish and revise the 

15 threshold quantity for a substance of concern. 

16 ‘‘(2) MATTERS FOR CONSIDERATION.—In desig17 nating a chemical substance or establishing or ad18 justing the threshold quantity for a chemical sub19 stance under paragraph (1), the Secretary shall con20 sider the potential extent of death, injury, and seri21 ous adverse effects to human health, the environ22 ment, critical infrastructure, national security, the 

23 national economy, and public welfare that would re24 sult from a chemical facility terrorist incident. 

25 ‘‘(b) LIST OF COVERED CHEMICAL FACILITIES.— 


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1 ‘‘(1) CRITERIAFOR LIST OF FACILITIES.—The 

2 Secretary shall maintain a list of covered chemical 

3 facilities that the Secretary determines are of suffi4 cient security risk for inclusion on the list based on 

5 the following criteria: 

6 ‘‘(A) The potential threat or likelihood that 

7 the chemical facility will be the target of a 

8 chemical facility terrorist incident. 

9 ‘‘(B) The potential extent and likelihood of 

10 death, injury, or serious adverse effects to 

11 human health, the environment, critical infra12 structure, national security, the national econ13 omy, and public welfare that could result from 

14 a chemical facility terrorist incident. 

15 ‘‘(C) The proximity of the chemical facility 

16 to population centers. 

17 ‘‘(2) SUBMISSION OF INFORMATION.—The Sec18 retary may require the submission of information 

19 with respect to the quantities of substances of con20 cern that are used, stored, manufactured, processed, 

21 or distributed by any chemical facility to determine 

22 whether to designate a chemical facility as a covered 

23 chemical facility for purposes of this title. 

24 ‘‘(c) ASSIGNMENT OF CHEMICAL FACILITIES TO

25 RISK-BASED TIERS.— 


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1 ‘‘(1) ASSIGNMENT.—The Secretary shall assign 

2 each covered chemical facility to one of at least four 

3 risk-based tiers established by the Secretary. 

4 ‘‘(2) PROVISION OF INFORMATION.—The Sec5 retary may request, and the owner or operator of a 

6 covered chemical facility shall provide, any additional 

7 information beyond any information required to be 

8 submitted under subsection (b)(2) that is needed for 

9 the Secretary to assign the chemical facility to the 

10 appropriate tier under paragraph (1). 

11 ‘‘(3) HIGH-RISK CHEMICAL FACILITIES.—At 

12 least one of the tiers established by the Secretary for 

13 the assignment of chemical facilities under this sub14 section shall be a tier designated for high-risk chem15 ical facilities. 

16 ‘‘(4) AUTHORITY TO REVIEW.—The Secretary 

17 shall periodically review the criteria under subsection 

18 (b)(1) and may, at any time, determine whether a 

19 chemical facility is a covered chemical facility or is 

20 no longer a covered chemical facility or change the 

21 tier assignment under paragraph (1) of any covered 

22 chemical facility. 

23 ‘‘(5) NOTIFICATION.—Not later than 60 days 

24 after the date on which the Secretary determines 

25 that a chemical facility is a covered chemical facility 


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1 or is no longer a covered chemical facility or changes 

2 the tier assignment under paragraph (1) of a cov3 ered chemical facility, the Secretary shall notify the 

4 owner or operator of that chemical facility of that 

5 determination or change together with the reason for 

6 the determination or change. 

7 ‘‘SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND 

8 SITE SECURITY PLANS. 

9 ‘‘(a) SECURITY VULNERABILITY ASSESSMENT AND

10 SITE SECURITY PLAN REQUIRED FOR COVERED CHEM11 ICAL FACILITIES.— 

12 ‘‘(1) REQUIREMENT FOR SECURITY VULNER13 ABILITY ASSESSMENT AND SITE SECURITY PLAN.— 

14 The Secretary shall— 

15 ‘‘(A) establish standards, protocols, and 

16 procedures for security vulnerability assess17 ments and site security plans to be required for 

18 covered chemical facilities; 

19 ‘‘(B) provide to the owner or operator of 

20 each covered chemical facility— 

21 ‘‘(i) the number of individuals at risk 

22 of death, injury, or severe adverse effects 

23 to human health as a result of a worst case 

24 chemical facility terrorist incident at the 

25 covered chemical facility; 


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1 ‘‘(ii) information related to the criti2 cality of the covered chemical facility for 

3 purposes of assessing the degree to which 

4 the facility is critical to the economy or na5 tional security of the United States; 

6 ‘‘(iii) the proximity or interrelation7 ship of the covered chemical facility to 

8 other critical infrastructure, including any 

9 utility or infrastructure (including trans10 portation) upon which the chemical facility 

11 relies to operate safely and securely; and 

12 ‘‘(iv) recommended best practices for 

13 securing chemical facilities; 

14 ‘‘(C) require the owner or operator of each 

15 such covered chemical facility to— 

16 ‘‘(i) conduct an assessment of the vul17 nerability of the covered chemical facility 

18 to a chemical facility terrorist incident; 

19 ‘‘(ii) prepare and implement a site se20 curity plan for that covered chemical facil21 ity that addresses the security vulnerability 

22 assessment and the risk-based chemical se23 curity performance standards under sub24 section (c); and 


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1 ‘‘(iii) include appropriate supervisory 

2 and non-supervisory employees of the cov3 ered chemical facility, and any employee 

4 representatives, as appropriate, in devel5 oping the security vulnerability assessment 

6 and site security plan required under this 

7 clause; and 

8 ‘‘(D) set deadlines for the completion of se9 curity vulnerability assessments and site secu10 rity plans. 

11 ‘‘(2) CRITERIA.—The Secretary shall ensure 

12 that the requirements under paragraph (1)— 

13 ‘‘(A) are risk-based; 

14 ‘‘(B) are performance-based; and 

15 ‘‘(C) take into consideration— 

16 ‘‘(i) the cost and technical feasibility 

17 of compliance by a covered chemical facil18 ity with the requirements under this title; 

19 ‘‘(ii) the different quantities and 

20 forms of substances of concern stored, 

21 used, and handled at covered chemical fa22 cilities; and 

23 ‘‘(iii) the criteria under section 

24 2102(a)(2). 


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1 ‘‘(b) MINIMUM REQUIREMENTS FOR HIGH-RISK

2 CHEMICAL FACILITIES.— 

3 ‘‘(1) REQUIREMENTS FOR SECURITY VULNER4 ABILITY ASSESSMENTS.—In the case of a covered 

5 chemical facility assigned to a high-risk tier under 

6 section 2102(c)(3), the Secretary shall require that 

7 the security vulnerability assessment required under 

8 this section for that chemical facility include each of 

9 the following: 

10 ‘‘(A) The identification of any hazard that 

11 could result from a chemical facility terrorist 

12 incident at the facility. 

13 ‘‘(B) Any vulnerability of the chemical fa14 cility with respect to— 

15 ‘‘(i) physical security; 

16 ‘‘(ii) programmable electronic devices, 

17 computers, computer or communications 

18 networks, Supervisory Control and Data 

19 Acquisition systems, Process Control Sys20 tems, or other automated systems used by 

21 the chemical facility; 

22 ‘‘(iii) alarms, cameras, and other pro23 tection systems; 

24 ‘‘(iv) communication systems; 

25 ‘‘(v) insider threats; and 


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1 ‘‘(vi) the structural integrity of equip2 ment for storage, handling, and other pur3 poses. 

4 ‘‘(C) Consideration of information relating 

5 to threats relevant to the chemical facility that 

6 is provided by the Secretary in accordance with 

7 paragraph (3). 

8 ‘‘(D) Such other information as the Sec9 retary determines is appropriate. 

10 ‘‘(2) REQUIREMENTS FOR SITE SECURITY

11 PLANS.—In the case of a covered chemical facility 

12 assigned to a high-risk tier under section 

13 2102(c)(3), the Secretary shall require that the site 

14 security plan required under this section for that 

15 chemical facility include each of the following: 

16 ‘‘(A) A description of security measures se17 lected by the facility that— 

18 ‘‘(i) address the vulnerabilities of the 

19 facility identified in the security vulner20 ability assessment; and 

21 ‘‘(ii) meet the risk-based chemical fa22 cility security performance standards es23 tablished by the Secretary. 

24 ‘‘(B) A plan and schedule for periodic 

25 drills and exercises to be conducted at the 


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1 chemical facility the development and execution 

2 of which includes participation by appropriate 

3 supervisory and non-supervisory facility employ4 ees and any employee representatives, local law 

5 enforcement agencies, and emergency response 

6 providers. 

7 ‘‘(C) Equipment, plans, and procedures to 

8 be implemented or used by or at the chemical 

9 facility in the event of a chemical facility ter10 rorist incident that affects the facility, including 

11 site evacuation, release mitigation, and contain12 ment plans. 

13 ‘‘(D) An identification of any steps taken 

14 to coordinate with State, local, and tribal law 

15 enforcement agencies, emergency response pro16 viders, the Department and other Federal agen17 cies, and Federal officials on security measures 

18 and plans for the collective response to a chem19 ical facility terrorist incident. 

20 ‘‘(E) A specification of the security officer 

21 who will be the point of contact for incident 

22 management purposes and for Federal, State, 

23 local, and tribal law enforcement and emer24 gency response providers. 


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1 ‘‘(F) A description of enhanced security 

2 measures to be used during periods of time 

3 when the Secretary determines that heightened 

4 terrorist threat conditions exist. 

5 ‘‘(G) An assessment and, as appropriate, a 

6 plan to implement methods to reduce the con7 sequences of a terrorist attack. 

8 ‘‘(3) PROVISION OF THREAT-RELATED INFOR9 MATION.— 

10 ‘‘(A) RESPONSIBILITIES OF THE SEC11 RETARY.—The Secretary shall provide in a 

12 timely manner, to the maximum extent prac13 ticable under applicable authority and in the in14 terests of national security, to an owner, oper15 ator, or security officer of a chemical facility as16 signed to the high-risk tier under section 

17 2102(c)(3), or another appropriate person, 

18 threat information that is relevant to that 

19 chemical facility, including an assessment of the 

20 most likely method that could be used by ter21 rorists to exploit any vulnerabilities of the 

22 chemical facility and the likelihood of the suc23 cess of such method. 

24 ‘‘(B) RESPONSIBILITIES OF OWNER OR OP25 ERATOR.—The Secretary shall require the 


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1 owner or operator of a covered chemical facility 

2 to provide in a timely manner to the Secretary 

3 a full report on any intentional, attempted, or 

4 accidental penetration of the physical security 

5 or cyber security of the covered chemical facil6 ity. 

7 ‘‘(4) RED TEAM EXERCISES.—The Secretary 

8 shall conduct red team exercises at chemical facili9 ties selected by the Secretary that have been as10 signed to a high-risk tier under section 2102(c)(3). 

11 The Secretary shall ensure that each such facility 

12 shall undergo a red team exercise during the six-year 

13 period that begins on the effective date of the regu14 lations prescribed to carry out this title. The exer15 cises required under this paragraph shall be— 

16 ‘‘(A) conducted after informing the owner 

17 or operator and any employee representative of 

18 the selected chemical facility and receiving posi19 tive confirmation from such owner or operator 

20 and employee representative, if any; 

21 ‘‘(B) designed to identify at the selected 

22 chemical facility— 

23 ‘‘(i) any vulnerabilities of the chemical 

24 facility; 


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1 ‘‘(ii) possible methods of a chemical 

2 facility terrorist incident at that facility; 

3 and 

4 ‘‘(iii) any weaknesses in the security 

5 plan of the chemical facility; and 

6 ‘‘(C) conducted so as not to compromise 

7 the security or safety of the chemical facility 

8 during the exercises. 

9 ‘‘(5) PROVISION OF TECHNICAL GUIDANCE.— 

10 The Secretary shall provide, upon request, assistance 

11 and guidance to a covered chemical facility con12 ducting a security vulnerability assessment or site 

13 security plan required under this section. 

14 ‘‘(c) RISK-BASED CHEMICAL SECURITY PERFORM15 ANCE STANDARDS.— 

16 ‘‘(1) IN GENERAL.—The Secretary shall estab17 lish risk-based chemical security performance stand18 ards for the site security plans required to be pre19 pared by covered chemical facilities. The standards 

20 shall— 

21 ‘‘(A) require separate and increasingly 

22 stringent risk-based chemical security perform23 ance standards for site security plans as the 

24 level of risk associated with the tier increases; 

25 and 


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1 ‘‘(B) permit each covered chemical facility 

2 submitting a site security plan to select a com3 bination of security measures that satisfy the 

4 risk-based chemical security performance stand5 ards established by the Secretary under this 

6 subsection. 

7 ‘‘(2) CRITERIA.—In establishing the risk-based 

8 chemical security performance standards under 

9 paragraph (1), the Secretary shall consider the cri10 teria under subsection (a)(2). 

11 ‘‘(3) GUIDANCE.—The Secretary shall provide 

12 guidance to each covered chemical facility regarding 

13 the types of security performance measures that, if 

14 applied, could satisfy the requirements under this 

15 section, including measures using methods to reduce 

16 the consequences of a terrorist attack that, if ap17 plied, could result in the Secretary removing the fa18 cility from the list or assigning the facility to a lower 

19 risk tier. 

20 ‘‘(d) CO-LOCATED CHEMICAL FACILITIES.—The Sec21 retary shall allow the owner or operator of two or more 

22 chemical facilities that are located geographically close to 

23 each other or otherwise co-located to develop and imple24 ment coordinated security vulnerability assessments and 


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1 site security plans, at the discretion of the owner or oper2 ator of the chemical facilities. 

3 ‘‘(e) ALTERNATE SECURITY PROGRAMS SATISFYING

4 REQUIREMENTS FOR SECURITY VULNERABILITY ASSESS5 MENT AND SITE SECURITY PLAN.— 

6 ‘‘(1) DETERMINATION BY THE SECRETARY.—In 

7 response to a request by an owner or operator of a 

8 covered chemical facility, or at the discretion of the 

9 Secretary, the Secretary may accept an alternative 

10 security program that the Secretary determines 

11 meets all or part of the requirements of this section 

12 and that provides for an equivalent level of security 

13 to the level of security provided for by the require14 ments of this title. 

15 ‘‘(2) USE OF ALTERNATE SECURITY PRO16 GRAMS.— 

17 ‘‘(A) USE BY INDIVIDUAL CHEMICAL FA18 CILITIES.—Upon review and written determina19 tion by the Secretary under paragraph (1) that 

20 the alternate security program of a covered 

21 chemical facility subject to the requirements of 

22 this section satisfies some or all of the require23 ments of this section, the chemical facility may 

24 use that alternate security program. 


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1 ‘‘(B) USE BY CLASSES OF CHEMICAL FA2 CILITIES.—At the discretion of the Secretary, 

3 the Secretary may identify a class or category 

4 of covered chemical facilities subject to the re5 quirements of this section that may use an al6 ternate security program recognized under this 

7 section in order to comply with all or part of 

8 the requirements of this section. 

9 ‘‘(3) PARTIAL RECOGNITION.—If the Secretary 

10 finds that an alternate security program satisfies 

11 only part of the requirements of this section, the 

12 Secretary may allow a covered chemical facility sub13 ject to the requirements of this section to comply 

14 with that alternate security program for purposes of 

15 that requirement, but shall require the covered 

16 chemical facility to submit any additional informa17 tion required to satisfy the requirements of this sec18 tion not met by that alternate security program. 

19 ‘‘(4) NOTIFICATION.—If the Secretary does not 

20 approve an alternate security program for which a 

21 petition is submitted under paragraph (1), the Sec22 retary shall provide to the person submitting a peti23 tion under paragraph (1) written notification that 

24 includes an explanation of the reasons why the ap25 proval was not made. 


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1 ‘‘(5) REVIEW REQUIRED.—Nothing in this sub2 section shall relieve the Secretary of the obligation— 

3 ‘‘(A) to review a security vulnerability as4 sessment and site security plan submitted by a 

5 covered chemical facility under this section; and 

6 ‘‘(B) to approve or disapprove each such 

7 assessment or plan on an individual basis. 

8 ‘‘(f) OTHER AUTHORITIES.— 

9 ‘‘(1) OTHER PROVISIONS OF LAW.—A covered 

10 chemical facility that is required to prepare a secu11 rity vulnerability assessment or site security plan or 

12 to submit or develop other relevant documents under 

13 chapter 701 of title 46, United States Code, the 

14 Federal Water Pollution Control Act (33 U.S.C. 

15 1251 et seq.), or section 1433 of the Safe Drinking 

16 Water Act (42 U.S.C. 300i–2) shall submit such 

17 plan or documents to the Secretary. The Secretary 

18 shall determine the extent to which actions taken by 

19 such a chemical facility pursuant to another provi20 sion of law fulfill the requirements of this section 

21 and may require such a chemical facility to complete 

22 any additional action required by this section. The 

23 Secretary shall work with the heads of the other 

24 Federal departments and agencies with authority 

25 with respect to such a covered chemical facility to 


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•HR 5577 IH

1 ensure that requirements under other provisions of 

2 law and the requirements under this title are non3 duplicative and non-contradictory. 

4 ‘‘(2) COORDINATION OF STORAGE LICENSING

5 OR PERMITTING REQUIREMENT.—In the case of any 

6 storage required to be licensed or permitted under 

7 chapter 40 of title 18, United States Code, the Sec8 retary shall prescribe the rules and regulations for 

9 the implementation of this section with the concur10 rence of the Attorney General and avoid unnecessary 

11 duplication of regulatory requirements. 

12 ‘‘(g) ROLE OF EMPLOYEES.— 

13 ‘‘(1) DESCRIPTION OF ROLE REQUIRED.—As 

14 appropriate, security vulnerability assessments or 

15 site security plans required under this section should 

16 describe the roles or responsibilities that chemical 

17 facility employees are expected to perform to deter 

18 or respond to a chemical facility terrorist incident. 

19 ‘‘(2) TRAINING FOR EMPLOYEES.—The owner 

20 or operator of a covered facility required to submit 

21 a site security plan under this section shall annually 

22 provide each employee of the facility with a min23 imum of 8 hours of training. Such training shall in24 clude— 


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•HR 5577 IH

1 ‘‘(A) an identification and discussion of 

2 substances of concern that pose a risk to the 

3 workforce, emergency response providers, and 

4 the community; 

5 ‘‘(B) a discussion of the prevention, pre6 paredness, and response plan for the facility, 

7 including off-site consequence impacts; 

8 ‘‘(C) an identification of opportunities to 

9 reduce or eliminate the vulnerability of the fa10 cility to a terrorist incident through the use of 

11 methods to reduce the consequences of a ter12 rorist attack; and 

13 ‘‘(D) a discussion and practice of appro14 priate emergency response procedures. 

15 ‘‘SEC. 2104. RECORD KEEPING; SITE INSPECTIONS. 

16 ‘‘(a) RECORD KEEPING.—The Secretary shall require 

17 each covered chemical facility required to submit a secu18 rity vulnerability assessment or site security plan under 

19 section 2103 to maintain a current copy of the assessment 

20 and the plan at the chemical facility. 

21 ‘‘(b) RIGHT OF ENTRY.—For purposes of carrying 

22 out this title, the Secretary (or a designee of the Sec23 retary) shall have, at a reasonable time and on presen24 tation of credentials, a right of entry to, on, or through 

25 any property of a covered chemical facility or any property 


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•HR 5577 IH

1 on which any record required to be maintained under this 

2 section is located. 

3 ‘‘(c) INSPECTIONS AND VERIFICATIONS.— 

4 ‘‘(1) IN GENERAL.—The Secretary shall, at 

5 such time and place as the Secretary determines to 

6 be reasonable and appropriate, conduct or require 

7 the conduct of chemical facility security inspections 

8 and verifications and may, by regulation, authorize 

9 third-party inspections and verifications by persons 

10 trained and certified by the Secretary for that pur11 pose. 

12 ‘‘(2) REQUIREMENTS.—To ensure and evaluate 

13 compliance with this title, including any regulations 

14 or requirements adopted by the Secretary in further15 ance of the purposes of this title, in conducting or 

16 requiring an inspection or verification under para17 graph (1), the Secretary shall— 

18 ‘‘(A) consult with owners, operators, and 

19 supervisory and non-supervisory employees of 

20 the covered chemical facility, and any employee 

21 representatives, as appropriate; and 

22 ‘‘(B) provide an opportunity to such own23 ers, operators, employees, and employee rep24 resentatives to be present during the inspection 


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•HR 5577 IH

1 or verification for the purpose of providing as2 sistance when and where it is appropriate. 

3 ‘‘(d) REQUESTS FOR RECORDS.— 

4 ‘‘(1) IN GENERAL.—In carrying out this title, 

5 the Secretary (or a designee of the Secretary) may 

6 require the submission of or, on presentation of cre7 dentials, may at reasonable times obtain access to 

8 and copy any documentation necessary for— 

9 ‘‘(A) reviewing or analyzing a security vul10 nerability assessment or site security plan sub11 mitted under section 2103; or 

12 ‘‘(B) implementing such a site security 

13 plan. 

14 ‘‘(2) PROPER HANDLING OF RECORDS.—In ac15 cessing or copying any documentation under para16 graph (1), the Secretary (or a designee of the Sec17 retary) shall ensure that the documentation is han18 dled and secured appropriately. 

19 ‘‘(e) PROVISION OF RECORDS TO EMPLOYEE REP20 RESENTATIVES.—If a covered chemical facility required to 

21 submit a security vulnerability assessment or site security 

22 plan submitted under section 2103 has an employee rep23 resentative, the owner or operator of the facility shall pro24 vide the employee representative with a copy of any secu25 rity vulnerability assessment or site security plan subVerDate Aug 31 2005 03:47 Mar 12, 2008 Jkt 069200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\H5577.IH H5577

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1 mitted. The employee representative shall ensure that any 

2 such assessment or plan provided to the representative is 

3 handled and secured appropriately in accordance with sec4 tion 2108. 

5 ‘‘(f) COMPLIANCE.—If the Secretary determines that 

6 an owner or operator of a covered chemical facility re7 quired to submit a security vulnerability assessment or site 

8 security plan under section 2103 fails to maintain, 

9 produce, or allow access to records or to the property of 

10 the covered chemical facility as required by this section, 

11 the Secretary shall issue an order requiring compliance 

12 with this section. 

13 ‘‘SEC. 2105. ENFORCEMENT. 

14 ‘‘(a) SUBMISSION OF INFORMATION.— 

15 ‘‘(1) INITIAL SUBMISSION.—The Secretary shall 

16 establish specific deadlines for the submission to the 

17 Secretary of the security vulnerability assessments 

18 and site security plans required under this title. The 

19 Secretary may establish different submission re20 quirements for the different tiers of chemical facili21 ties under section 2102(c). 

22 ‘‘(2) MAJOR CHANGES REQUIREMENT.—The 

23 Secretary shall establish specific deadlines and re24 quirements for the submission by a covered chemical 

25 facility of information describing— 


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•HR 5577 IH

1 ‘‘(A) any change in the use by the covered 

2 chemical facility of more than a threshold 

3 amount of any substance of concern that could 

4 affect the requirements of the chemical facility 

5 under this title; and 

6 ‘‘(B) any significant change in a security 

7 vulnerability assessment or site security plan 

8 submitted by the covered chemical facility. 

9 ‘‘(3) PERIODIC REVIEW BY CHEMICAL FACILITY

10 REQUIRED.—The Secretary shall require the owner 

11 or operator of a covered chemical facility required to 

12 submit a security vulnerability assessment or site se13 curity plan under this section to periodically submit 

14 to the Secretary a review of the adequacy of the se15 curity vulnerability assessment or site security plan 

16 that includes a description of any changes made to 

17 the security vulnerability assessment or site security 

18 plan. 

19 ‘‘(b) REVIEW OF SITE SECURITY PLAN.— 

20 ‘‘(1) DEADLINE FOR REVIEW.—Not later than 

21 180 days after the date on which the Secretary re22 ceives a security vulnerability assessment or site se23 curity plan under this title, the Secretary shall re24 view and approve or disapprove such assessment or 

25 plan. 


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•HR 5577 IH

1 ‘‘(2) DISAPPROVAL.—The Secretary shall dis2 approve a security vulnerability assessment or site 

3 security plan if the Secretary determines that— 

4 ‘‘(A) the security vulnerability assessment 

5 or site security plan does not comply with the 

6 requirements under section 2103; or 

7 ‘‘(B) in the case of a site security plan, the 

8 plan or the implementation of the plan is insuf9 ficient to address any vulnerabilities identified 

10 in a security vulnerability assessment of the 

11 covered chemical facility or associated oversight 

12 actions taken under section 2103 or section 

13 2104, including a red team exercise. 

14 ‘‘(3) PROVISION OF NOTIFICATION OF DIS15 APPROVAL.—If the Secretary disapproves the secu16 rity vulnerability assessment or site security plan 

17 submitted by a covered chemical facility under this 

18 title or the implementation of a site security plan by 

19 such a chemical facility, the Secretary shall— 

20 ‘‘(A) provide the owner or operator of the 

21 covered chemical facility a written notification 

22 of the disapproval, that— 

23 ‘‘(i) includes a clear explanation of de24 ficiencies in the assessment, plan, or imple25 mentation of the plan; and 


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•HR 5577 IH

1 ‘‘(ii) requires the owner or operator of 

2 the covered chemical facility to revise the 

3 assessment or plan to address any defi4 ciencies and, by such date as the Secretary 

5 determines is appropriate, to submit to the 

6 Secretary the revised assessment or plan; 

7 ‘‘(B) provide guidance to assist the owner 

8 or operator of the covered chemical facility in 

9 addressing such deficiency; 

10 ‘‘(C) in the case of a covered chemical fa11 cility for which the owner or operator of the fa12 cility does not address such deficiencies by such 

13 date as the Secretary determines to be appro14 priate, issue an order requiring the owner or 

15 operator to correct specified deficiencies by a 

16 specified date; and 

17 ‘‘(D) in the case of a covered chemical fa18 cility assigned to a high-risk tier under section 

19 2102(c)(3), upon the request of the owner or 

20 operator of the facility, consult with the owner 

21 or operator to identify appropriate steps to be 

22 taken by the owner or operator to address the 

23 deficiencies identified by the Secretary. 

24 ‘‘(4) ORDER TO CEASE OPERATIONS.—If the 

25 Secretary determines that the owner or operator of 


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•HR 5577 IH

1 a chemical facility assigned to a high-risk tier under 

2 section 2102(c)(3) continues to be in noncompliance 

3 after an order for compliance is issued under para4 graph (3), the Secretary may issue an order to the 

5 owner or operator to cease operations at the facility 

6 until the owner or operator complies with the order 

7 issued under paragraph (3). Notwithstanding the 

8 preceding sentence, the Secretary may not issue an 

9 order to cease operations under this paragraph to 

10 the owner or operator of a drinking water or waste11 water facility unless the Secretary determines that 

12 continued operation of the facility represents a clear 

13 and present danger to homeland security. 

14 ‘‘(c) REPORTING PROCESS.— 

15 ‘‘(1) ESTABLISHMENT.—The Secretary shall es16 tablish, and provide information to the public re17 garding a process by which any person may submit 

18 a report to the Secretary regarding problems, defi19 ciencies, or vulnerabilities at a covered chemical fa20 cility associated with the risk of a chemical facility 

21 terrorist incident. 

22 ‘‘(2) CONFIDENTIALITY.—The Secretary shall 

23 keep confidential the identity of a person that sub24 mits a report under paragraph (1) and any such re25 port shall be treated as protected information under 


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•HR 5577 IH

1 section 2108(f) to the extent that it does not consist 

2 of publicly available information. 

3 ‘‘(3) ACKNOWLEDGMENT OF RECEIPT.—If a re4 port submitted under paragraph (1) identifies the 

5 person submitting the report, the Secretary shall re6 spond promptly to such person to acknowledge re7 ceipt of the report. 

8 ‘‘(4) STEPS TO ADDRESS PROBLEMS.—The Sec9 retary shall review and consider the information pro10 vided in any report submitted under paragraph (1) 

11 and shall take appropriate steps under this title to 

12 address any problem, deficiency, or vulnerability 

13 identified in the report. 

14 ‘‘(d) RETALIATION PROHIBITED.— 

15 ‘‘(1) PROHIBITION.—No owner or operator of a 

16 chemical facility, profit or not-for-profit corporation, 

17 association, or any contractor, subcontractor or 

18 agent thereof, or a Federal, State, local, or tribal 

19 government agency may discharge any employee or 

20 otherwise discriminate against any employee with re21 spect to his compensation, terms, conditions, secu22 rity clearance or other access to classified or sen23 sitive information, or other privileges of employment 

24 because the employee (or any person acting pursu25 ant to a request of the employee)— 


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•HR 5577 IH

1 ‘‘(A) notified the Secretary, the owner or 

2 operator of a chemical facility, or the employ3 ee’s employer of an alleged violation of this 

4 title, including communications related to car5 rying out the employee’s job duties; 

6 ‘‘(B) refused to engage in any practice 

7 made unlawful by this title, if the employee has 

8 identified the alleged illegality to the employer; 

9 ‘‘(C) testified before or otherwise provided 

10 information relevant for Congress or for any 

11 Federal or State proceeding regarding any pro12 vision (or proposed provision) of this title; 

13 ‘‘(D) commenced, caused to be commenced, 

14 or is about to commence or cause to be com15 menced a proceeding under this title; 

16 ‘‘(E) testified or is about to testify in any 

17 such proceeding; or 

18 ‘‘(F) assisted or participated or is about to 

19 assist or participate in any manner in such a 

20 proceeding or in any other manner in such a 

21 proceeding or in any other action to carry out 

22 the purposes of this title. 

23 ‘‘(2) ENFORCEMENT ACTION.—Any employee 

24 covered by this section who alleges discrimination by 

25 an employer in violation of subsection (a) may bring 


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•HR 5577 IH

1 an action governed by the rules and procedures, 

2 legal burdens of proof, and remedies applicable 

3 under subsections (c) through (g) of section 20109 

4 of title 49, United States Code. 

5 ‘‘SEC. 2106. PENALTIES. 

6 ‘‘(a) CIVIL PENALTIES.— 

7 ‘‘(1) IN GENERAL.—The Secretary may bring 

8 an action in a United States district court against 

9 any owner or operator of a chemical facility that vio10 lates or fails to comply with— 

11 ‘‘(A) any order issued by the Secretary 

12 under this title; or 

13 ‘‘(B) any site security plan approved by 

14 the Secretary under this title. 

15 ‘‘(2) RELIEF.—In any action under paragraph 

16 (1), a court may issue an order for injunctive relief 

17 and may award a civil penalty of not more than 

18 $50,000 for each day on which a violation occurs or 

19 a failure to comply continues. 

20 ‘‘(b) PENALTIES FOR UNAUTHORIZED DISCLO21 SURE.—Any officer or employee of a Federal, State, local, 

22 or tribal government agency who, in a manner or to an 

23 extent not authorized by law, knowingly discloses any 

24 record containing protected information described in sec25 tion 2108(f) shall— 


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•HR 5577 IH

1 ‘‘(1) be imprisoned not more than 1 year, fined 

2 under chapter 227 of title 18, United States Code, 

3 or both; and 

4 ‘‘(2) if an officer or employee of the Govern5 ment, be removed from Federal office or employ6 ment. 

7 ‘‘(c) TREATMENT OF INFORMATION IN ADJUDICA8 TIVE PROCEEDINGS.—In a proceeding under this title, in9 formation protected under section 2108, or related vulner10 ability or security information, shall be treated in any judi11 cial or administrative action as if the information were 

12 classified material. 

13 ‘‘SEC. 2107. FEDERAL PREEMPTION. 

14 ‘‘(a) IN GENERAL.—Nothing in this title shall pre15 clude or deny any right of any State or political subdivi16 sion thereof to adopt or enforce any regulation, require17 ment, or standard of performance with respect to chemical 

18 facility security to deter, detect, or respond to a chemical 

19 facility terrorist incident that is more stringent than a reg20 ulation, requirement, or standard of performance issued 

21 pursuant to this title, or shall otherwise impair any right 

22 or jurisdiction of any State or political subdivision thereof 

23 with respect to chemical facilities within that State or po24 litical subdivision thereof unless a direct conflict exists be25 tween this title and the regulation, requirement, or standVerDate Aug 31 2005 03:47 Mar 12, 2008 Jkt 069200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:\BILLS\H5577.IH H5577

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1 ard of performance issued by a State or political subdivi2 sion thereof. 

3 ‘‘(b) OTHER REQUIREMENTS.—Nothing in this title 

4 shall preclude or deny the right of any State or political 

5 subdivision thereof to adopt or enforce any regulation, re6 quirement, or standard of performance relating to environ7 mental protection, health, or safety. 

8 ‘‘SEC. 2108. PROTECTION OF INFORMATION. 

9 ‘‘(a) PROHIBITION OF PUBLIC DISCLOSURE OF PRO10 TECTED INFORMATION.— 

11 ‘‘(1) IN GENERAL.—The Secretary shall ensure 

12 that protected information, as described in sub13 section (f), is not disclosed except as provided in this 

14 title. 

15 ‘‘(2) SPECIFIC PROHIBITIONS.—In carrying out 

16 paragraph (1), the Secretary shall ensure that pro17 tected information is not disclosed— 

18 ‘‘(A) by any Federal agency under section 

19 552 of title 5, United States Code; or 

20 ‘‘(B) under any State or local law. 

21 ‘‘(b) REGULATIONS.— 

22 ‘‘(1) IN GENERAL.—In carrying out the require23 ments of this title, the Secretary shall prescribe such 

24 regulations, and may issue such orders, as necessary 


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•HR 5577 IH

1 to prohibit the unauthorized disclosure of protected 

2 information, as described in subsection (f). 

3 ‘‘(2) REQUIREMENTS.—The regulations pre4 scribed under paragraph (1) shall— 

5 ‘‘(A) allow for information sharing, on a 

6 confidential basis, with and between, Federal, 

7 State, local, and tribal law enforcement offi8 cials, and emergency response providers, and 

9 appropriate supervisory and non-supervisory 

10 chemical facility personnel, and employee rep11 resentatives, if any, with security, operational, 

12 or fiduciary responsibility for the facility; 

13 ‘‘(B) provide for the confidential use of 

14 protected information in any administrative or 

15 judicial proceeding, including placing under seal 

16 any such information that is contained in any 

17 filing, order, or other document used in such 

18 proceedings that could otherwise become part of 

19 the public record; 

20 ‘‘(C) limit access to protected information 

21 to persons designated by the Secretary; and 

22 ‘‘(D) ensure, to the maximum extent prac23 ticable, that— 

24 ‘‘(i) protected information shall be 

25 maintained in a secure location; and 


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•HR 5577 IH

1 ‘‘(ii) access to protected information 

2 shall be limited as may be necessary to— 

3 ‘‘(I) enable enforcement of this 

4 title; or 

5 ‘‘(II) address an imminent and 

6 substantial threat to security or an 

7 imminent chemical facility terrorist 

8 incident. 

9 ‘‘(c) OTHER OBLIGATIONS UNAFFECTED.—Nothing 

10 in this section affects any obligation of the owner or oper11 ator of a chemical facility to submit or make available in12 formation to facility employees, employee organizations, or 

13 a Federal, State, tribal, or local government agency under, 

14 or otherwise to comply with, any other law. 

15 ‘‘(d) SUBMISSION OF INFORMATION TO CONGRESS.— 

16 Nothing in this title shall be construed as authorizing the 

17 withholding of any information from Congress. 

18 ‘‘(e) DISCLOSURE OF INDEPENDENTLY FURNISHED

19 INFORMATION.—Nothing in this title shall be construed 

20 as affecting any authority or obligation of a Federal agen21 cy to disclose any record or information that the Federal 

22 agency obtains from a chemical facility under any other 

23 law. 

24 ‘‘(f) PROTECTED INFORMATION.— 


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•HR 5577 IH

1 ‘‘(1) IN GENERAL.—For purposes of this sec2 tion, protected information includes the following: 

3 ‘‘(A) The criteria and data used by the 

4 Secretary to assign chemical facilities to risk5 based tiers under section 2102 and the tier to 

6 which each such facility is assigned. 

7 ‘‘(B) The security vulnerability assess8 ments and site security plans submitted to the 

9 Secretary under this title. 

10 ‘‘(C) Information concerning the risk-based 

11 chemical facility security performance standards 

12 for a chemical facility under section 2103(c). 

13 ‘‘(D) Any other information generated or 

14 collected by a Federal, State, local, or tribal 

15 government agency or by a chemical facility for 

16 the purpose of carrying out or complying with 

17 this title— 

18 ‘‘(i) that describes any vulnerability of 

19 a chemical facility to an act of terrorism; 

20 ‘‘(ii) that describes the assignment of 

21 any chemical facility to a risk-based tier 

22 under this title; or 

23 ‘‘(iii) that describes any security 

24 measure (including any procedure, equip25 ment, training, or exercise) for the protecVerDate Aug 31 2005 03:47 Mar 12, 2008 Jkt 069200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\H5577.IH H5577

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1 tion of a chemical facility from an act of 

2 terrorism. 

3 ‘‘(2) EXCLUSIONS.—For purposes of this sec4 tion, protected information does not include— 

5 ‘‘(A) information that is publicly available; 

6 ‘‘(B) information that a chemical facility 

7 has disclosed other than in accordance with this 

8 section; or 

9 ‘‘(C) information that, if disclosed, would 

10 not be detrimental to the security of a chemical 

11 facility. 

12 ‘‘SEC. 2109. CERTIFICATION BY THIRD-PARTY ENTITIES. 

13 ‘‘(a) CERTIFICATION BY THIRD-PARTY ENTITIES.— 

14 The Secretary may designate a third-party entity to carry 

15 out any function under subsection (e)(5) of section 2103, 

16 subsection (b), (c), or (d) of section 2104, or subsection 

17 (b)(1) of section 2105. 

18 ‘‘(b) QUALIFICATIONS.—The Secretary shall estab19 lish standards for the qualifications of third-party entities, 

20 including knowledge of physical infrastructure protection, 

21 cybersecurity, chemical facility security, hazard analysis, 

22 chemical process engineering, chemical process safety re23 views, and other such factors that the Secretary deter24 mines to be necessary. 


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1 ‘‘(c) PROCEDURES AND REQUIREMENTS FOR PRI2 VATE ENTITIES.—Before designating a third-party entity 

3 to carry out a function under subsection (a), the Secretary 

4 shall— 

5 ‘‘(1) develop, document, and update, as nec6 essary, minimum standard operating procedures and 

7 requirements applicable to such entities designated 

8 under subsection (a), including— 

9 ‘‘(A) conducting a 90-day independent re10 view of the procedures and requirements (or up11 dates thereto) and the results of the analyses of 

12 such procedures (or updates thereto) pursuant 

13 to subtitle G of title VIII; and 

14 ‘‘(B) upon completion of the independent 

15 review under subparagraph (A), designating 

16 any procedure or requirement (or any update 

17 thereto) as a qualified anti-terrorism technology 

18 pursuant to section 862(b); 

19 ‘‘(2) conduct safety and hazard analyses of the 

20 standard operating procedures and requirements de21 veloped under paragraph (1); 

22 ‘‘(3) conduct a review of the third-party enti23 ties’ business engagements to ensure that no conflict 

24 exists that could compromise the execution of any 

25 functions under subsection (e)(5) of section 2103, 


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•HR 5577 IH

1 subsection (b), (c), or (d) of section 2104, or sub2 section (c)(1) of section 2105; and 

3 ‘‘(4) conduct a review of the third-party enti4 ties’ business practices and disqualify any of these 

5 organizations that offer related auditing or con6 sulting services to chemical facilities as private sec7 tor vendors. 

8 ‘‘(d) ENSURING CONTRACTING WITH CERTAIN

9 SMALL BUSINESS CONCERNS.— 

10 ‘‘(1) REQUIREMENTS FOR PRIME CONTRACTS.— 

11 The Secretary shall include in each contract awarded 

12 to a third-party entity— 

13 ‘‘(A) a requirement that the third-party 

14 entity develop and implement a plan for the 

15 award of subcontracts, as appropriate, to small 

16 business concerns and disadvantaged business 

17 concerns in accordance with other applicable re18 quirements, including the terms of such plan, 

19 as appropriate; and 

20 ‘‘(B) a requirement that the third-party 

21 entity shall submit to the Secretary, during per22 formance of the contract, periodic reports de23 scribing the extent to which the contractor has 

24 complied with such plan, including specification 

25 (by total dollar amount and by percentage of 


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•HR 5577 IH

1 the total dollar value of the contract) of the 

2 value of subcontracts awarded at all tiers of 

3 subcontracting to small business concerns, in4 cluding socially and economically disadvantaged 

5 small businesses concerns, small business con6 cerns owned and controlled by service-disabled 

7 veterans, HUBZone small business concerns, 

8 small business concerns eligible to be awarded 

9 contracts pursuant to section 8(a) of the Small 

10 Business Act (15 U.S.C. 637(a)), and histori11 cally black colleges and universities and His12 panic-serving institutions, tribal colleges and 

13 universities, and other minority institutions. 

14 ‘‘(2) DEFINITIONS.—For purposes of this sub15 section: 

16 ‘‘(A) The terms ‘socially and economically 

17 disadvantaged small businesses concern’, ‘small 

18 business concern owned and controlled by serv19 ice-disabled veterans’, and ‘HUBZone small 

20 business concern’ have the meaning given such 

21 terms under the Small Business Act (15 U.S.C. 

22 631 et seq.). 

23 ‘‘(B) The term ‘historically black colleges 

24 and universities’ means part B institutions 


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•HR 5577 IH

1 under title III of the Higher Education Act of 

2 1965 (20 U.S.C. 1061). 

3 ‘‘(C) The term ‘Hispanic-serving institu4 tion’ has the meaning given such term under 

5 title V of the Higher Education Act of 1965 

6 (20 U.S.C. 1101a(a)(5)). 

7 ‘‘(D) The term ‘tribal colleges and univer8 sities’ has the meaning given such term under 

9 the Tribally Controlled College or University 

10 Assistance Act of 1978 (25 U.S.C. 1801 et 

11 seq.)). 

12 ‘‘(3) UTILIZATION OF ALLIANCES.—The Sec13 retary shall, to the maximum extent practicable, 

14 seek to facilitate the award of contracts to conduct 

15 certification under subsection (a) to alliances of 

16 business concerns referred to in paragraph (1)(B). 

17 ‘‘(4) ANNUAL REPORT.— 

18 ‘‘(A) IN GENERAL.—By not later than Oc19 tober 31 of each year, the Secretary shall sub20 mit to the Committee on Homeland Security of 

21 the House of Representatives and the Com22 mittee on Homeland Security and Govern23 mental Affairs of the Senate a report on the 

24 award of contracts to conduct certification 

25 under subsection (a) to business concerns reVerDate Aug 31 2005 03:47 Mar 12, 2008 Jkt 069200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 E:\BILLS\H5577.IH H5577

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1 ferred to in paragraph (1)(B) during the fiscal 

2 year preceding the fiscal year in which the re3 port is submitted. 

4 ‘‘(B) CONTENTS.—The Secretary shall in5 clude in each report under subparagraph (A)— 

6 ‘‘(i) a specification of the value of 

7 such contracts, by dollar amount and as a 

8 percentage of the total dollar value of all 

9 contracts awarded by the Department in 

10 such fiscal year; 

11 ‘‘(ii) a specification of the total dollar 

12 value of such contracts awarded to each of 

13 the categories of business concerns referred 

14 to in paragraph (1)(B); and 

15 ‘‘(iii) if the percentage of the total 

16 dollar value of contracts awarded under 

17 this section specified under clause (i) is 

18 less than 25 percent, an explanation of— 

19 ‘‘(I) why the percentage is less 

20 than 25 percent; and 

21 ‘‘(II) what will be done to ensure 

22 that the percentage for the following 

23 fiscal year will not be less than 25 

24 percent. 


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1 ‘‘(e) TECHNICAL REVIEW AND APPROVAL.—Not later 

2 than 60 days after the date on which the results of the 

3 safety and hazard analysis of the standard operating pro4 cedures and requirements are completed under subsection 

5 (c)(2), the Secretary shall— 

6 ‘‘(1) complete a technical review of the proce7 dures and requirements (or updates thereto) under 

8 sections 862(b) and 863(d)(2); and 

9 ‘‘(2) approve or disapprove such procedures and 

10 requirements (or updates thereto). 

11 ‘‘(f) EFFECT OF APPROVAL.— 

12 ‘‘(1) ISSUANCE OF CERTIFICATE OF CONFORM13 ANCE.—In accordance with section 863(d)(3), the 

14 Secretary shall issue a certificate of conformance to 

15 a third-party entity to perform a function under sub16 section (a) if the entity— 

17 ‘‘(A) demonstrates to the satisfaction of 

18 the Secretary the ability to perform functions in 

19 accordance with standard operating procedures 

20 and requirements (or updates thereto) approved 

21 by the Secretary under this section; 

22 ‘‘(B) agrees to— 

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1 dures and requirements (or updates there2 to); and 

3 ‘‘(ii) maintain liability insurance cov4 erage at policy limits and in accordance 

5 with conditions to be established by the 

6 Secretary pursuant to section 864; and 

7 ‘‘(C) signs an agreement to protect the 

8 proprietary and confidential information of any 

9 chemical facility with respect to which the enti10 ty will perform such function. 

11 ‘‘(2) LITIGATION AND RISK MANAGEMENT PRO12 TECTIONS.—A third-party entity that maintains li13 ability insurance coverage at policy limits and in ac14 cordance with conditions to be established by the 

15 Secretary pursuant to section 864 and receives a 

16 certificate of conformance under paragraph (1) shall 

17 receive all applicable litigation and risk management 

18 protections under sections 863 and 864. 

19 ‘‘(3) RECIPROCAL WAIVER OF CLAIMS.—A re20 ciprocal waiver of claims shall be deemed to have 

21 been entered into between a third-party entity that 

22 receives a certificate of conformance under para23 graph (1) and its contractors, subcontractors, sup24 pliers, vendors, customers, and contractors and sub25 contractors of customers involved in the use or operVerDate Aug 31 2005 03:47 Mar 12, 2008 Jkt 069200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\H5577.IH H5577

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1 ation of any function performed by the third-party 

2 entity under subparagraph (a). 

3 ‘‘(4) INFORMATION FOR ESTABLISHING LIMITS

4 OF LIABILITY INSURANCE.—A third-party entity 

5 seeking a certificate of conformance under para6 graph (1) shall provide to the Secretary necessary 

7 information for establishing the limits of liability in8 surance required to be maintained by the entity 

9 under section 864(a). 

10 ‘‘(g) MONITORING.—The Secretary shall regularly 

11 monitor and inspect the operations of a third-party entity 

12 that performs a function under subsection (a) to ensure 

13 that the entity is meeting the minimum standard oper14 ating procedures and requirements established under sub15 section (c) and any other applicable requirement under 

16 this section. 

17 ‘‘SEC. 2110. METHODS TO REDUCE THE CONSEQUENCES OF 

18 A TERRORIST ATTACK. 

19 ‘‘(a) ASSESSMENT REQUIRED.—The owner or oper20 ator of a covered chemical facility shall include in the site 

21 security plan conducted pursuant to section 2103, an as22 sessment of methods to reduce the consequences of a ter23 rorist attack on that chemical facility, including— 


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1 ‘‘(1) a description of the methods to reduce the 

2 consequences of a terrorist attack assessed by the 

3 covered chemical facility; 

4 ‘‘(2) the degree to which each method to reduce 

5 the consequences of a terrorist attack could, if ap6 plied, reduce the potential extent of death, injury, or 

7 serious adverse effects to human health resulting 

8 from a terrorist release; 

9 ‘‘(3) the technical viability, costs, avoided costs 

10 (including liabilities), savings, and applicability of 

11 applying each method to reduce the consequences of 

12 a terrorist attack; and 

13 ‘‘(4) any other information that the owner or 

14 operator of the covered chemical facility considered 

15 in conducting the assessment. 

16 ‘‘(b) IMPLEMENTATION.— 

17 ‘‘(1) IMPLEMENTATION.—The owner or oper18 ator of a chemical facility assigned to a high-risk 

19 tier under section 2102(c)(3) that is required to con20 duct an assessment under subsection (a) shall imple21 ment methods to reduce the consequences of a ter22 rorist attack on the chemical facility if the Secretary 

23 determines, based on an assessment in subsection 

24 (a), that the implementation of such methods at the 

25 facility— 


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1 ‘‘(A) would significantly reduce the risk of 

2 death, injury, or serious adverse effects to 

3 human health resulting from a chemical facility 

4 terrorist incident but would not increase the in5 terim storage of a substance of concern outside 

6 the facility or directly result in the creation of 

7 a new covered chemical facility assigned to a 

8 high-risk tier under section 2102(c)(3) or the 

9 assignment of an existing facility to a high-risk 

10 tier; 

11 ‘‘(B) can feasibly be incorporated into the 

12 operation of the covered chemical facility; and 

13 ‘‘(C) would not significantly and demon14 strably impair the ability of the owner or oper15 ator of the covered chemical facility to continue 

16 the business of the facility at a location within 

17 the United States. 

18 ‘‘(2) REVIEW OF INABILITY TO COMPLY.— 

19 ‘‘(A) IN GENERAL.—An owner or operator 

20 of a covered chemical facility who is unable to 

21 comply with the Secretary’s determination 

22 under paragraph (1) shall, within 60 days of re23 ceipt of the Secretary’s determination, provide 

24 to the Secretary a written explanation that in25 cludes the reasons thereto. 


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1 ‘‘(B) REVIEW.—Not later than 60 days of 

2 receipt of an explanation submitted under sub3 paragraph (A), the Secretary after consulting 

4 with the owner or operator who submitted such 

5 explanation, shall provide to the owner or oper6 ator a written determination of whether imple7 mentation shall be required pursuant to para8 graph (1). If the Secretary determines that im9 plementation is required, the facility shall be re10 quired to begin implementation within 180 days 

11 of that determination. 

12 ‘‘(c) PROVISION OF INFORMATION ON ALTERNATIVE

13 APPROACHES.— 

14 ‘‘(1) IN GENERAL.—The Secretary shall provide 

15 information to chemical facilities on the use and 

16 availability of methods to reduce the consequences of 

17 a terrorist attack at a covered chemical facility to 

18 aid a covered chemical facility in meeting the re19 quirements of subsection (a). 

20 ‘‘(2) INFORMATION TO BE INCLUDED.—The in21 formation under paragraph (1) may include informa22 tion about— 

23 ‘‘(A) general and specific types of such 

24 methods; 


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1 ‘‘(B) combinations of chemical sources, 

2 substances of concern, and hazardous processes 

3 or conditions for which such methods could be 

4 appropriate; 

5 ‘‘(C) the availability of specific methods to 

6 reduce the consequences of a terrorist attack; 

7 ‘‘(D) the costs and cost savings resulting 

8 from the use of such methods; 

9 ‘‘(E) emerging technologies that could be 

10 transferred from research models or prototypes 

11 to practical applications; 

12 ‘‘(F) the availability of technical assistance 

13 and best practices; and 

14 ‘‘(G) such other matters as the Secretary 

15 determines is appropriate. 

16 ‘‘(3) COLLECTION OF INFORMATION.—The Sec17 retary may collect information necessary to fulfill 

18 the requirements of paragraph (1)— 

19 ‘‘(A) from information obtained from own20 ers or operators of chemical facilities pursuant 

21 to this title, including those who have registered 

22 such facilities pursuant to part 68 of title 40 

23 Code of Federal Regulations (or successor regu24 lations); 


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1 ‘‘(B) from studies and reports published by 

2 academic institutions, National Laboratories, 

3 and other relevant and reputable public and pri4 vate sector experts; and 

5 ‘‘(C) through such other methods as the 

6 Secretary deems appropriate. 

7 ‘‘(4) PUBLIC AVAILABILITY.—Information made 

8 available publicly under this subsection shall not 

9 identify any specific chemical facility, violate the 

10 protection of information provisions under section 

11 2108, or disclose any confidential or proprietary in12 formation. 

13 ‘‘(d) PROTECTED INFORMATION.—An assessment 

14 prepared under subsection (a) is protected information 

15 under section 2108(f). 

16 ‘‘(e) FUNDING FOR METHODS TO REDUCE THE CON17 SEQUENCES OF A TERRORIST ATTACK.—The Secretary 

18 shall make funds available to help defray the cost of imple19 menting methods to reduce the consequences of a terrorist 

20 attack to covered chemical facilities that are required by 

21 the Secretary to implement such methods or that volun22 tarily choose to implement such methods. In making such 

23 funds available, the Secretary shall give special consider24 ation to those facilities required by the Secretary to imple25 ment methods to reduce the consequences of a terrorist 


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1 attack pursuant to subsection (b) and water and waste2 water facilities administered by State, local, tribal, or mu3 nicipal authorities that are subject to the Federal Water 

4 Pollution Control Act (33 U.S.C. 1251 et seq.) or section 

5 1433 of the Safe Drinking Water Act (42 U.S.C. 300i6 2). 

7 ‘‘(f) PUBLICLY-OWNED WATER AND WASTEWATER

8 TREATMENT FACILITIES.—Notwithstanding any other 

9 provision of this title, the Secretary may not require a 

10 publicly-owned facility regulated under the Safe Drinking 

11 Water Act (42 U.S.C. 300i–2) or the Federal Water Pollu12 tion Control Act (33 U.S.C. 1251 et seq.) to implement 

13 methods to reduce the consequences of a terrorist attack 

14 under subsection (b) unless that facility receives funding 

15 under subsection (e). 

16 ‘‘SEC. 2111. APPLICABILITY. 

17 ‘‘This title shall not apply to— 

18 ‘‘(1) any chemical facility that is owned and op19 erated by the Secretary of Defense, the Attorney 

20 General, or the Secretary of Energy; 

21 ‘‘(2) the transportation in commerce, including 

22 incidental storage, of any substance of concern regu23 lated as a hazardous material under chapter 51 of 

24 title 49, United States Code; or 


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1 ‘‘(3) any chemical facility that is owned or oper2 ated by a licensee or certificate holder of the Nu3 clear Regulatory Commission. 

4 ‘‘SEC. 2112. SAVINGS CLAUSE. 

5 ‘‘Nothing in this title shall affect or modify in any 

6 way any obligation or liability of any person under any 

7 other Federal law, including section 112 of the Clean Air 

8 Act (42 U.S.C. 7412), the Federal Water Pollution Con9 trol Act (33 U.S.C. 1251 et seq.), the Resource Conserva10 tion and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), 

11 the National Environmental Policy Act of 1969 (42 U.S.C. 

12 4321 et seq.), the Occupational Safety and Health Act (29 

13 U.S.C. 651 et seq.), the National Labor Relations Act (29 

14 U.S.C. 151 et seq.), the Emergency Planning and Commu15 nity Right to Know Act of 1996 (42 U.S.C. 11001 et seq.), 

16 the Safe Drinking Water Act (42 U.S.C. 300f et seq.), 

17 the Maritime Transportation Security Act of 2002 (Pubic 

18 Law 107–295), and the Comprehensive Environmental 

19 Response, Compensation, and Liability Act of 1980 (42 

20 U.S.C. 9601 et seq.). 

21 ‘‘SEC. 2113. OFFICE OF CHEMICAL FACILITY SECURITY. 

22 ‘‘(a) IN GENERAL.—There is in the Department an 

23 Office of Chemical Facility Security, headed by a Director, 

24 who shall be a member of the Senior Executive Service 

25 in accordance with subchapter VI of chapter 33 of title 


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1 5, United States Code, under section 5382 of that title, 

2 and who shall be responsible for carrying out the respon3 sibilities of the Secretary under this title. 

4 ‘‘(b) PROFESSIONAL QUALIFICATIONS.—The indi5 vidual selected by the Secretary as the Director Office of 

6 Chemical Facility Security should have a demonstrated 

7 knowledge of physical infrastructure protection, 

8 cybersecurity, chemical facility security, hazard analysis, 

9 chemical process engineering, chemical process safety re10 views, and other such factors that the Secretary deter11 mines to be necessary. 

12 ‘‘(c) SELECTION PROCESS.—The Secretary shall 

13 make a reasonable effort to select an individual to serve 

14 as the Director from among a group of candidates that 

15 is diverse with respect to race, ethnicity, age, gender, and 

16 disability characteristics and submit to the Committee on 

17 Homeland Security of the House of Representatives and 

18 the Committee on Homeland Security and Governmental 

19 Affairs of the Senate information on the selection process, 

20 including details on efforts to assure diversity among the 

21 candidates considered for this position. 

22 ‘‘SEC. 2114. SECURITY BACKGROUND CHECKS OF COVERED 

23 INDIVIDUALS AT CERTAIN CHEMICAL FACILI24 TIES. 

25 ‘‘(a) REGULATIONS ISSUED BY THE SECRETARY.— 


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1 ‘‘(1) IN GENERAL.—The Secretary shall issue 

2 regulations to require a covered chemical facility as3 signed to a high-risk tier under section 2102(c)(3) 

4 to subject covered individuals who have access to re5 stricted areas or critical assets or who are deter6 mined to require security background checks under 

7 risk-based guidance to security background checks 

8 based on risk-based guidance. Such regulations shall 

9 set forth— 

10 ‘‘(A) the scope of the security background 

11 checks, including the types of disqualifying of12 fenses and the time period covered for each cov13 ered individual; 

14 ‘‘(B) the processes to conduct the security 

15 background checks; 

16 ‘‘(C) the necessary biographical informa17 tion and other data required in order to con18 duct the security background checks; and 

19 ‘‘(D) a redress process for adversely-af20 fected covered individuals consistent with sub21 sections (b) and (c). 

22 ‘‘(2) ENFORCEMENT.—If the owner or operator 

23 of a covered chemical facility that is subject to para24 graph (1) fails to comply with the requirements of 

25 that paragraph, the Secretary may issue a penalty 


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1 against the owner or operator in accordance with 

2 section 2106. 

3 ‘‘(3) REQUIREMENT FOR REDRESS PROCESS.— 

4 If a covered chemical facility performs a security 

5 background check on a covered individual to comply 

6 with regulations issued by the Secretary under para7 graph (1), the Secretary shall not consider the facil8 ity in compliance unless an adequate redress process 

9 as described in subsection (c) is provided to covered 

10 individuals. 

11 ‘‘(b) REQUIREMENTS.—Upon issuance of a final reg12 ulation under subsection (a), or any future rule, regula13 tion, directive or guidance, by the Secretary regarding a 

14 security background check of a covered individual, the 

15 Secretary shall prohibit the covered chemical facility from 

16 making an adverse employment decision, including re17 moval or suspension of the employee, due to such rule, 

18 regulation, directive, or guidance with respect to a covered 

19 individual unless the covered individual— 

20 ‘‘(1) has been convicted of, has been found not 

21 guilty of by reason of insanity of, or is under want, 

22 warrant, or indictment for a permanent disqualifying 

23 criminal offense listed in part 1572 of title 49, Code 

24 of Federal Regulations; 


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1 ‘‘(2) was convicted of or found not guilty by 

2 reason of insanity of an interim disqualifying crimi3 nal offense listed in part 1572 of title 49, Code of 

4 Federal Regulations, within 7 years of the date on 

5 which the chemical facility performs the security 

6 background check; 

7 ‘‘(3) was incarcerated for an interim disquali8 fying criminal offense listed in part 1572 of title 49, 

9 Code of Federal Regulations, and released from in10 carceration within 5 years of the date that the chem11 ical facility performs the security background check; 

12 ‘‘(4) is determined, as a result of the security 

13 background check, to be a known terrorist or to have 

14 terrorist ties; or 

15 ‘‘(5) is determined, as a result of the security 

16 background check, not to be legally authorized to 

17 work in the United States. 

18 ‘‘(c) REDRESS PROCESS.—Upon the issuance of a 

19 final regulation under subsection (a), or any future rule, 

20 regulation, directive, or guidance, requiring a covered 

21 chemical facility to perform a security background check 

22 of a covered individual, the Secretary shall— 

23 ‘‘(1) require an adequate redress process for a 

24 covered individual subjected to an adverse employ25 ment decision, including removal or suspension of 


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1 the employee, due to such rule, regulation, directive, 

2 or guidance that is consistent with the appeals and 

3 waiver processes established for applicants for com4 mercial motor vehicle hazardous materials endorse5 ments and transportation workers at ports, as re6 quired by section 70105(c) of title 46, United States 

7 Code, including all rights to hearings before an ad8 ministration law judge, scope of review, a review of 

9 an unclassified summary of classified evidence equiv10 alent to the summary provided in part 1515 of title 

11 49, Code of Federal Regulations, and procedures for 

12 new evidence for both appeals and waiver decisions; 

13 ‘‘(2) have the authority to order an appropriate 

14 remedy, including reinstatement of the covered indi15 vidual, should the Secretary determine that a cov16 ered chemical facility wrongfully made an adverse 

17 employment decision regarding a covered individual 

18 pursuant to such rule, regulation, directive, or guid19 ance; 

20 ‘‘(3) ensure that the redress process required 

21 under this subsection affords to the covered indi22 vidual a full disclosure of any public-record event 

23 covered by subsection (b) that provides the basis for 

24 an adverse employment decision; and 


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1 ‘‘(4) ensure that covered individual receives the 

2 individual’s full wages and benefits until all appeals 

3 and waiver procedures are exhausted. 

4 ‘‘(d) FALSE STATEMENTS.— 

5 ‘‘(1) IN GENERAL.—A covered chemical facility 

6 may not knowingly misrepresent to an employee or 

7 other relevant person, including an arbiter involved 

8 in a labor arbitration, the scope, application, or 

9 meaning of any rules, regulations, directives, or 

10 guidance issued by the Secretary related to security 

11 background check requirements for covered individ12 uals when conducting a security background check 

13 under this section. 

14 ‘‘(2) DEADLINE FOR REGULATIONS.—Not later 

15 than 1 year after the date of enactment of the 

16 Chemical Facility Anti-Terrorism Act of 2008, the 

17 Secretary shall issue a regulation that prohibits a 

18 covered chemical facility from knowingly misrepre19 senting to an employee or other relevant person, in20 cluding an arbiter involved in a labor arbitration, the 

21 scope, application, or meaning of any rules, regula22 tions, directives, or guidance issued by the Secretary 

23 related to security background check requirements 

24 for covered individuals when conducting a security 

25 background check. 


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1 ‘‘(e) RESTRICTIONS ON USE AND MAINTENANCE OF

2 INFORMATION.—Information obtained under this section 

3 by the Secretary or a covered chemical facility that is an 

4 employer of a covered individual shall be handled as fol5 lows: 

6 ‘‘(1) Such information may not be made avail7 able to the public. 

8 ‘‘(2) Such information may not be accessed by 

9 employees of the facility except for such employees 

10 who are directly involved with collecting the informa11 tion or conducting or evaluating security background 

12 checks. 

13 ‘‘(3) Such information shall be maintained con14 fidentially by facility and the Secretary and may be 

15 used only for making determinations under this sec16 tion. 

17 ‘‘(4) The Secretary may share such information 

18 with other Federal law enforcement agencies. 

19 ‘‘(f) RIGHTS AND RESPONSIBILITIES.—Nothing in 

20 the section shall be construed to abridge any right or re21 sponsibility of a covered individual or covered chemical fa22 cility under any other Federal, State, local, or tribal law 

23 or collective bargaining agreement. 

24 ‘‘(g) NO PREEMPTION OF FEDERAL OR STATE

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1 empt a Federal, State, local, or tribal law that requires 

2 criminal history background checks, checks on the author3 ization of an individual to work in the United States, or 

4 other background checks of covered individuals. 

5 ‘‘(h) DEFINITION OF SECURITY BACKGROUND

6 CHECK.—The term ‘security background check’ means a 

7 review at no cost to any covered individual of the following 

8 for the purpose of identifying individuals who may pose 

9 a threat to chemical facility security, to national security, 

10 or of terrorism. 

11 ‘‘(1) Relevant databases to verify and validate 

12 identity. 

13 ‘‘(2) Relevant criminal history databases. 

14 ‘‘(3) In the case of an alien (as defined in sec15 tion 101 of the Immigration and Nationality Act (8 

16 U.S.C. 1101(a)(3))), the relevant data bases to de17 termine the status of the alien under the immigra18 tion laws of the United States. 

19 ‘‘(4) Relevant databases to identify terrorists or 

20 people with known ties to terrorists. 

21 ‘‘(5) Other relevant information or data bases, 

22 as determined by the Secretary. 

23 ‘‘(i) INCLUDED INDIVIDUALS.—The Secretary shall 

24 require any individual at a covered chemical facility or as25 sociated with a covered chemical facility who is provided 


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1 a copy of a security vulnerability assessment or site secu2 rity plan to be subjected to a security background check. 

3 ‘‘(j) SAVINGS CLAUSE.—Nothing in this section shall 

4 be construed as creating any new right or modifying any 

5 existing right of an individual to appeal a determination 

6 by the Secretary as a result of a check against a terrorist 

7 watch list. 

8 ‘‘SEC. 2115. NATIONAL CHEMICAL SECURITY CENTER OF 

9 EXCELLENCE. 

10 ‘‘(a) ESTABLISHMENT.— 

11 ‘‘(1) IN GENERAL.—The Secretary shall estab12 lish a National Chemical Security Center of Excel13 lence to conduct research and education and to de14 velop technologies to lower the overall risk of ter15 rorist chemical attack, including technologies or 

16 practices to decrease threats, vulnerabilities, and 

17 consequences in order to ensure the security of 

18 chemical facilities. 

19 ‘‘(2) ADDITIONAL REQUIREMENTS.—In estab20 lishing the National Chemical Security Center of Ex21 cellence under paragraph (1), or in reorganizing any 

22 other chemical, biological, or agricultural Center of 

23 Excellence established before the date of enactment 

24 of the Chemical Facility Anti-Terrorism Act of 

25 2008, the Secretary shall— 


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1 ‘‘(A) recognize the unique scientific, tech2 nical, and funding requirements of the chem3 ical, biological, and agricultural fields with re4 spect to the mission of the Department of 

5 Homeland Security; and 

6 ‘‘(B) maintain the National Chemical Se7 curity Center of Excellence and any such other 

8 chemical, biological, or agricultural Center of 

9 Excellence as a distinct entity with respect to 

10 organization and funding. 

11 ‘‘(b) DESIGNATION OF LEAD INSTITUTION.—The 

12 Secretary shall select at least one of the institutions identi13 fied in subsection (c) as the lead institution responsible 

14 for coordinating the National Chemical Security Center of 

15 Excellence. Any member institution that is part of the con16 sortium under subsection (c) may serve as a lead institu17 tion for the Center. 

18 ‘‘(c) MEMBER INSTITUTIONS; CONSORTIUM.— 

19 ‘‘(1) CONSORTIUM.—The lead institution se20 lected under subsection (b) shall execute agreements 

21 with the other institutions of higher education iden22 tified in this subsection and other institutions des23 ignated by the Secretary to develop a consortium to 

24 assist in accomplishing the goals of the Center. 


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1 ‘‘(2) MEMBERS.—The National Chemical Secu2 rity Center of Excellence shall consist of at least 

3 three institutions of higher education with current 

4 expertise or the capability to produce appropriate ex5 pertise, including— 

6 ‘‘(A) one historically black college or uni7 versity; and 

8 ‘‘(B) one Hispanic-serving institution. 

9 ‘‘(3) INCLUSIONS.—The Secretary shall ensure 

10 that an appropriate number of any additional part11 ner colleges or universities designated by the Sec12 retary under this subsection are historically black 

13 colleges and universities, Hispanic-serving institu14 tions, and tribal colleges and universities. 

15 ‘‘(4) DEFINITIONS.—For the purposes of this 

16 subsection, the terms ‘historically black colleges and 

17 universities’, ‘Hispanic-serving institutions’, and 

18 ‘tribal colleges and universities’ have the meanings 

19 given such terms under section 2109(d)(2). 

20 ‘‘SEC. 2116. AUTHORIZATION OF APPROPRIATIONS. 

21 ‘‘There is authorized to be appropriated to the Sec22 retary of Homeland Security to carry out this title— 

23 ‘‘(1) $325,000,000 for fiscal year 2010, of 

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1 vide funding for methods to reduce the consequences 

2 of a terrorist attack pursuant to section 2110(e); 

3 ‘‘(2) $300,000,000 for fiscal year 2011, of 

4 which $75,000,000 shall be made available to pro5 vide funding for methods to reduce the consequences 

6 of a terrorist attack pursuant to section 2110(e); 

7 and 

8 ‘‘(3) $275,000,000 for fiscal year 2012, of 

9 which $50,000,000 shall be made available to pro10 vide funding for methods to reduce the consequences 

11 of a terrorist attack pursuant to section 2110(e).’’. 

12 (b) CLERICAL AMENDMENT.—The table of contents 

13 in section 1(b) of such Act is amended by adding at the 

14 end the following: 

‘‘TITLE XXI—REGULATION OF SECURITY PRACTICES AT 

CHEMICAL FACILITIES 

‘‘Sec. 2101. Definitions. 

‘‘Sec. 2102. Risk-based designation and ranking of chemical facilities. 

‘‘Sec. 2103. Security vulnerability assessments and site security plans. 

‘‘Sec. 2104. Record keeping; site inspections. 

‘‘Sec. 2105. Enforcement. 

‘‘Sec. 2106. Penalties. 

‘‘Sec. 2107. Federal preemption. 

‘‘Sec. 2108. Protection of information. 

‘‘Sec. 2109. Certification by third-party entities. 

‘‘Sec. 2110. Methods to reduce the consequences of a terrorist attack. 

‘‘Sec. 2111. Applicability. 

‘‘Sec. 2112. Savings clause. 

‘‘Sec. 2113. Office of Chemical Facility Security. 

‘‘Sec. 2114. Security background checks of covered individuals at certain chemical facilities. 

‘‘Sec. 2114. National chemical security center of excellence. 

‘‘Sec. 2115. Authorization of appropriations.’’. 

15 (c) CONFORMING REPEAL.— 


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1 (1) REPEAL.—The Department of Homeland 

2 Security Appropriations Act, 2007 (Public Law 

3 109–295) is amended by striking section 550. 

4 (2) EFFECTIVE DATE.—The amendment made 

5 by paragraph (1) shall take effect on October 1, 

6 2009. 

7 (d) REGULATIONS.—In carrying out the require8 ments of title XXI of the Homeland Security Act of 2002, 

9 as added by subsection (a), the Secretary may, to the ex10 tent that the Secretary determines is appropriate, use any 

11 of the regulations known as CFATS regulations, as in ef12 fect immediately before the enactment of this Act, that 

13 the Secretary determines carry out such requirements. 

14 (e) COMPLIANCE WITH PREEXISTING TIMELINES.— 

15 In the case of a chemical facility that is required to submit 

16 a security vulnerability assessment and site security plan 

17 under section 2103 of the Homeland Security Act of 2002, 

18 as added by subsection (a), and that, as of the date of 

19 the enactment of this Act, is subject to the regulations 

20 known as CFATS regulations, as in effect immediately be21 fore the date of the enactment of this Act, the Secretary 

22 may require the facility to adhere to any timelines applica23 ble under such regulations instead of any applicable 

24 timeline under subsection (i) of that section. 

25 (f) DEADLINES.— 


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1 (1) DEADLINE FOR ISSUING CERTAIN GUID2 ANCE.—Not later than October 1, 2009, the Sec3 retary of Homeland Security shall update any guid4 ance, recommendations, suggested action items, or 

5 any other widely disseminated voluntary action item 

6 relating to performing a security background check 

7 (as such term is defined in section 2114(g) of the 

8 Homeland Security Act of 2002, as added by sub9 section (a)) of a covered individual (as that term is 

10 defined in section 2101(5) of such Act, as so added) 

11 that was issued to a covered chemical facility (as 

12 that term is defined in section 2101(6) of such Act, 

13 as so added) prior to that date to ensure that such 

14 guidance, recommendations, suggested action items 

15 or other widely disseminated voluntary action item is 

16 compliance with section 2114(a)(1) of such Act, as 

17 so added. 

18 (2) DEADLINE FOR HIGH-RISK FACILITIES TO

19 SUBMIT SECURITY VULNERABILITY ASSESSMENTS

20 AND SITE SECURITY PLANS.— 

21 (A) IN GENERAL.—The owner or operator 

22 of a chemical facility assigned to a high-risk 

23 tier under paragraph (3) of subsection (c) of 

24 section 2102 of the Homeland Security Act of 


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1 2002, as added by section 4, shall submit to the 

2 Secretary of Homeland Security— 

3 (i) the security vulnerability assess4 ment required under that subsection by 

5 not later than 3 months after the date on 

6 which the Secretary prescribes regulations 

7 to carry out that subsection; and 

8 (ii) the site security plan required 

9 under that subsection by not later than 4 

10 months after receiving notice that the Sec11 retary has approved the security vulner12 ability assessment submitted under clause 

13 (i). 

14 (B) EXTENSION.—The Secretary may ex15 tend the deadline under subparagraph (A) for a 

16 chemical facility for not longer than six months. 

17 (C) FACILITIES COVERED BY CFATS.—The 

18 owner or operator of a chemical facility as19 signed to a high-risk tier under section 

20 2102(c)(3) of the Homeland Security Act of 

21 2002, as added by subsection (a), who, before 

22 October 1, 2009, submits a security vulner23 ability assessment or site security plan under 

24 the regulations known as CFATS regulations, 

25 as in effect immediately before the enactment of 


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1 this Act, shall be required to submit an adden2 dum to the facility’s security vulnerability as3 sessment or site security plan to reflect any ad4 ditional requirements of this Act or the amend5 ments made by this Act. 

6 SEC. 5. ANNUAL REPORT TO CONGRESS. 

7 (a) ANNUAL REPORT.—Not later than one year after 

8 the date of the enactment of this Act, and annually there9 after for the next four years, the Secretary of Homeland 

10 Security shall submit to Congress a report on progress in 

11 achieving compliance with title XXI of the Homeland Se12 curity Act of 2002, as added by section 4. Each such re13 port shall include— 

14 (1) an assessment of the effectiveness of the 

15 site security plans developed under this title; 

16 (2) any lessons learned in implementing this 

17 title (including as a result of a red-team exercise); 

18 and 

19 (3) any recommendations of the Secretary to 

20 improve the programs, plans, and procedures under 

21 this title, including the feasibility of programs to in22 crease the number of economically disadvantaged 

23 businesses eligible to perform third-party entity re24 sponsibilities pursuant to sections 2103(e)(5), 


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1 2104(b) and (c), and 2105(b)(1) of such Act, as so 

2 added. 

3 (b) PROTECTED INFORMATION.—A report under this 

4 section may not include information protected under sec5 tion 2108 of such Act, as so added. 

6 SEC. 6. INSPECTOR GENERAL REPORT. 

7 (a) REPORT REQUIRED.—Not later than October 1, 

8 2010, the Inspector General of the Department of Home9 land Security shall submit to the Committee on Homeland 

10 Security of the House of Representatives and the Com11 mittee on Homeland Security and Governmental Affairs 

12 of the Senate a report that reviews the effectiveness of 

13 the implementation of title XXI of the Homeland Security 

14 Act of 2002, as added by subsection (a), including the ef15 fectiveness of site security plans required under such title 

16 and any recommendations to improve the programs, plans, 

17 and procedures required under such title, including the 

18 Secretary’s dissemination of best practices under section 

19 2103(a)(1)(A) of such Act, as so added, and the partici20 pating rates of economically disadvantaged businesses eli21 gible to perform third-party entity responsibilities pursu22 ant to sections 2103(e)(5), 2104(b), (c), and (d), and 

23 2105(b)(1) of such Act, as so added. 

24 (b) CLASSIFIED ANNEX.—The report required under 

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1 clude a classified annex, if the Inspector General deter2 mines a classified annex is necessary. 

3 SEC. 7. DEADLINE FOR REGULATIONS. 

4 (a) IN GENERAL.—The Secretary shall conduct the 

5 rulemaking process so that final rules carrying out the 

6 provisions of this Act and the amendments made by this 

7 Act are effective on October 1, 2009. 

8 SEC. 8. CHEMICAL FACILITY TRAINING PROGRAM. 

9 (a) IN GENERAL.—Subtitle A of title VIII of the 

10 Homeland Security Act of 2002 (6 U.S.C. 361) is amend11 ed by adding at the end the following new section: 

12 ‘‘SEC. 802. CHEMICAL FACILITY TRAINING PROGRAM. 

13 ‘‘(a) IN GENERAL.—The Secretary shall establish a 

14 Chemical Facility Security Training Program (referred to 

15 in this section as the ‘Program’) for the purpose of en16 hancing the collective response to terrorism and the capa17 bilities of chemical facilities to prevent, prepare for, re18 spond to, mitigate against, and recover from threatened 

19 or actual chemical facility terrorist incidents. 

20 ‘‘(b) REQUIREMENTS.—The Program shall provide 

21 training that— 

22 ‘‘(1) reaches multiple disciplines, including Fed23 eral, State, local, and tribal government officials, 

24 chemical facility owners, operators, and employees, 


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1 and governmental and nongovernmental emergency 

2 response providers; 

3 ‘‘(2) utilizes multiple training mediums and 

4 methods; 

5 ‘‘(3) addresses chemical facility security and 

6 site security plans, including— 

7 ‘‘(A) site security plans and procedures for 

8 differing threat levels; 

9 ‘‘(B) physical security, security equipment 

10 and systems, access control, and methods for 

11 preventing and countering theft; 

12 ‘‘(C) recognition and detection of weapons 

13 and devices; 

14 ‘‘(D) security incident procedures, includ15 ing procedures for communicating with emer16 gency response providers; 

17 ‘‘(E) evacuation procedures and use of ap18 propriate personal protective equipment; and 

19 ‘‘(F) other requirements that the Secretary 

20 deems appropriate. 

21 ‘‘(4) is consistent with, and supports implemen22 tation of, the National Incident Management Sys23 tem, the National Response Framework, the Na24 tional Infrastructure Protection Plan, the National 


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1 Preparedness Guidelines, and other national initia2 tives; 

3 ‘‘(5) includes consideration of existing security 

4 and hazardous chemical training programs including 

5 Federal or industry programs; and 

6 ‘‘(6) is evaluated against clear and consistent 

7 performance measures. 

8 ‘‘(c) NATIONAL VOLUNTARY CONSENSUS STAND9 ARDS.—The Secretary shall— 

10 ‘‘(1) support the promulgation, and regular up11 dating as necessary and appropriate of national vol12 untary consensus standards for chemical facility se13 curity training ensuring that training is consistent 

14 with such standards; and 

15 ‘‘(2) ensure that the training provided under 

16 this section is consistent with such standards. 

17 ‘‘(d) TRAINING PARTNERS.—In developing and deliv18 ering training under the Program, the Secretary shall— 

19 ‘‘(1) work with government training programs, 

20 chemical facilities, academic institutions, industry 

21 and private organizations, employee organizations, 

22 and other relevant entities that provide specialized 

23 state-of-the-art training; and 

24 ‘‘(2) utilize, as appropriate, training provided 

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1 grams, employee organizations, State and private 

2 colleges and universities, and other chemical facili3 ties.’’. 

4 (b) CLERICAL AMENDMENT.—The table of contents 

5 in section 1(b) of such Act is amended by inserting after 

6 the item relating to section 801 the following: 

‘‘Sec. 802. Chemical facility training program.’’. 

Æ 


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