II 

111TH CONGRESS 

2D SESSION S. 3599 

To enhance the security of chemical facilities and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 15, 2010 

Mr. LAUTENBERG (for himself and Mrs. GILLIBRAND) introduced the following bill; which was read twice and referred to the Committee on 

Homeland Security and Governmental Affairs 

A BILL 

To enhance the security of 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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Secure Chemical Fa5 cilities Act’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (a) FINDINGS.—Congress finds the following: 

8 (1) The chemical sector of the United States 

9 represents a target that terrorists could exploit to 

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1 ous adverse effects to human health, the environ2 ment, critical infrastructure, public health, homeland 

3 security, national security, and the national econ4 omy. 

5 (2) Chemical facilities that pose such potential 

6 consequences and that are vulnerable to terrorist at7 tacks must be protected. 

8 (3) The Secretary of Homeland Security has 

9 statutory authority under section 550 of the Depart10 ment of Homeland Security Appropriations Act, 

11 2007 (6 U.S.C. 121 note) to regulate the security 

12 practices at chemical facilities that are at significant 

13 risk of being terrorist targets. 

14 (4) The Secretary of Homeland Security issued 

15 interim final regulations entitled the ‘‘Chemical Fa16 cility Anti-Terrorism Standards’’, which became ef17 fective on June 8, 2007. 

18 (b) PURPOSE.—The purpose of this Act is to modify 

19 and make permanent the authority of the Secretary of 

20 Homeland Security to regulate security practices at chem21 ical facilities. 


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1 SEC. 3. 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: 

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

11 ‘‘SEC. 2101. DEFINITIONS. 

12 ‘‘In this title: 

13 ‘‘(1) ACADEMIC LABORATORY.—The term ‘aca14 demic laboratory’ means a facility or area owned by 

15 an institution of higher education (as defined under 

16 section 101 of the Higher Education Act of 1965 

17 (20 U.S.C. 1001)) or a nonprofit research institute 

18 or teaching hospital that has a formal affiliation 

19 with an institution of higher education, including 

20 photo laboratories, art studios, field laboratories, re21 search farms, chemical stockrooms, and preparatory 

22 laboratories, where relatively small quantities of 

23 chemicals and other substances, as determined by 

24 the Secretary, are— 

25 ‘‘(A) used on a nonproduction basis for— 

26 ‘‘(i) teaching; 


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1 ‘‘(ii) research; or 

2 ‘‘(iii) diagnostic purposes; and 

3 ‘‘(B) stored and used in containers that 

4 are typically manipulated by 1 person. 

5 ‘‘(2) CHEMICAL FACILITY.—The term ‘chemical 

6 facility’ means any facility— 

7 ‘‘(A) at which the owner or operator of the 

8 facility possesses or plans to possess a sub9 stance of concern; or 

10 ‘‘(B) that meets other risk-related criteria 

11 identified by the Secretary. 

12 ‘‘(3) CHEMICAL FACILITY SECURITY PERFORM13 ANCE STANDARDS.—The term ‘chemical facility se14 curity performance standards’ means risk-based 

15 standards established by the Secretary under section 

16 2103(c). 

17 ‘‘(4) CHEMICAL FACILITY TERRORIST INCI18 DENT.—The term ‘chemical facility terrorist inci19 dent’ means any act or attempted act of terrorism 

20 or terrorist incident committed at, near, or against 

21 a chemical facility, including such an act that in22 volves— 

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

24 from a chemical facility; 


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1 ‘‘(B) the theft, misappropriation, or misuse 

2 of a substance of concern from a chemical facil3 ity; or 

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

5 a substance of concern at a chemical facility. 

6 ‘‘(5) COVERED CHEMICAL FACILITY.—The term 

7 ‘covered chemical facility’ means a chemical facility 

8 that the Secretary determines meets the criteria 

9 under section 2102(b)(1). 

10 ‘‘(6) COVERED INDIVIDUAL.—The term ‘cov11 ered individual’ means a permanent, temporary, full12 time, or part-time employee of a covered chemical 

13 facility or an employee of an entity with which the 

14 covered chemical facility has entered into a contract 

15 who is performing responsibilities at the covered 

16 chemical facility pursuant to the contract. 

17 ‘‘(7) EMPLOYEE REPRESENTATIVE.—The term 

18 ‘employee representative’ means the representative 

19 of a certified or recognized bargaining agent en20 gaged in a collective bargaining relationship with the 

21 owner or operator of a chemical facility. 

22 ‘‘(8) ENVIRONMENT.—The term ‘environment’ 

23 has the meaning given the term in section 101 of the 

24 Comprehensive Environmental Response, Compensa25 tion, and Liability Act of 1980 (42 U.S.C. 9601). 


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1 ‘‘(9) METHOD TO REDUCE THE CONSEQUENCES

2 OF A TERRORIST ATTACK.—The term ‘method to re3 duce the consequences of a terrorist attack’ means 

4 a measure used at a chemical facility that reduces 

5 or eliminates the potential consequences of a chem6 ical facility terrorist incident, including— 

7 ‘‘(A) the elimination or reduction in the 

8 amount of a substance of concern possessed or 

9 planned to be possessed by an owner or oper10 ator of a covered chemical facility through the 

11 use of alternate substances, formulations, or 

12 processes; 

13 ‘‘(B) the modification of pressures, tem14 peratures, or concentrations of a substance of 

15 concern; and 

16 ‘‘(C) the reduction or elimination of onsite 

17 handling of a substance of concern through im18 provement of inventory control or chemical use 

19 efficiency. 

20 ‘‘(10) OWNER OR OPERATOR.—The term ‘owner 

21 or operator’ with respect to a facility means— 

22 ‘‘(A) the person who owns the facility; 

23 ‘‘(B) the person who has responsibility for 

24 daily operation of the facility; and 

25 ‘‘(C) the person who leases the facility. 


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1 ‘‘(11) PERSON.—The term ‘person’— 

2 ‘‘(A) means an individual, trust, firm, joint 

3 stock company, corporation (including a govern4 ment corporation), partnership, association, 

5 State, municipality, commission, political sub6 division of a State, or interstate body; and 

7 ‘‘(B) includes each department, agency, or 

8 instrumentality of the United States. 

9 ‘‘(12) PROTECTED INFORMATION.— 

10 ‘‘(A) IN GENERAL.—The term ‘protected 

11 information’ includes— 

12 ‘‘(i) security vulnerability assessments 

13 and site security plans, including any as14 sessment required under section 2111; 

15 ‘‘(ii) portions of the following docu16 ments, records, orders, notices, or letters 

17 that the Secretary has determined by regu18 lation would be detrimental to chemical fa19 cility security if disclosed and that are de20 veloped by the Secretary or the owner or 

21 operator of a covered chemical facility for 

22 the purposes of this title— 

23 ‘‘(I) documents directly related to 

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1 sessment or site security plan under 

2 this title by the Secretary; 

3 ‘‘(II) documents directly related 

4 to an inspection or audit under this 

5 title; 

6 ‘‘(III) an order, notice, or letter 

7 regarding the compliance of a covered 

8 chemical facility with this title; 

9 ‘‘(IV) information or a document 

10 or record required to be provided to or 

11 created by the Secretary under sub12 section (b) or (c) of section 2102; and 

13 ‘‘(V) a document directly related 

14 to a security drill or training exercise, 

15 security threat or breach of security, 

16 or maintenance, calibration, or testing 

17 of security equipment; and 

18 ‘‘(iii) any other information, docu19 ment, or record developed exclusively for 

20 the purposes of this title that the Secretary 

21 has determined, by rule, would, if dis22 closed, be detrimental to chemical facility 

23 security. 

24 ‘‘(B) EXCLUSIONS.—The term ‘protected 

25 information’ does not include— 


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1 ‘‘(i) information, other than a security 

2 vulnerability assessment or site security 

3 plan, that the Secretary has determined, 

4 by rule, to be— 

5 ‘‘(I) appropriate to describe com6 pliance by a chemical facility with this 

7 title and the implementation of this 

8 title by the Secretary; and 

9 ‘‘(II) not detrimental to chemical 

10 facility security if disclosed; or 

11 ‘‘(ii) information, whether or not also 

12 contained in a security vulnerability assess13 ment, site security plan, or in a document, 

14 record, order, notice, or letter, or portion 

15 thereof, described in clause (ii) or (iii) of 

16 subparagraph (A), that is obtained from 

17 another source with respect to which the 

18 Secretary has not made a determination 

19 under either clause, including— 

20 ‘‘(I) information that is required 

21 to be made publicly available under 

22 any other provision of law; and 

23 ‘‘(II) information that a chemical 

24 facility has lawfully disclosed other 


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1 than in a submission to the Secretary 

2 under this title. 

3 ‘‘(13) RELEASE.—The term ‘release’ means any 

4 spilling, leaking, pumping, pouring, emitting, 

5 emptying, discharging, injecting, escaping, leaching, 

6 dumping, or disposing into the environment (includ7 ing the abandonment or discarding of barrels, con8 tainers, and other closed receptacles containing any 

9 hazardous substance or pollutant or contaminant). 

10 ‘‘(14) SECURITY VULNERABILITY ASSESS11 MENT.—The term ‘security vulnerability assessment’ 

12 means an assessment described in section 

13 2103(a)(1)(B)(i). 

14 ‘‘(15) SITE SECURITY PLAN.—The term ‘site 

15 security plan’ means a plan described in section 

16 2103(a)(1)(B)(ii). 

17 ‘‘(16) SUBSTANCE OF CONCERN.—The term 

18 ‘substance of concern’ means a chemical substance 

19 in quantity and form that is designated by the Sec20 retary under section 2102(a). 

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

22 CHEMICAL FACILITIES. 

23 ‘‘(a) SUBSTANCES OF CONCERN.— 

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

25 Secretary may— 


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1 ‘‘(A) designate any chemical substance as 

2 a substance of concern; and 

3 ‘‘(B) establish and adjust the threshold 

4 quantity for each chemical substance designated 

5 under subparagraph (A). 

6 ‘‘(2) MATTERS FOR CONSIDERATION.—In desig7 nating a chemical substance or establishing or ad8 justing the threshold quantity for a chemical sub9 stance under paragraph (1), the Secretary shall con10 sider the potential extent of death, injury, and seri11 ous adverse effects to human health, the environ12 ment, critical infrastructure, public health, homeland 

13 security, national security, and the national economy 

14 that could result from a chemical facility terrorist 

15 incident involving the chemical substance. 

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

17 ‘‘(1) CRITERIA FOR LIST OF FACILITIES.—The 

18 Secretary may designate a chemical facility as a cov19 ered chemical facility if the Secretary determines the 

20 chemical facility is a sufficient security risk based 

21 on— 

22 ‘‘(A) the potential threat or likelihood that 

23 the chemical facility will be a target of a chem24 ical facility terrorist incident; 


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1 ‘‘(B) the potential extent and likelihood of 

2 death, injury, or serious adverse effects to 

3 human health, the environment, critical infra4 structure, public health, homeland security, na5 tional security, or the national economy that 

6 could result from a chemical facility terrorist 

7 incident at the chemical facility; and 

8 ‘‘(C) the proximity of the chemical facility 

9 to large population centers. 

10 ‘‘(2) LIST.—The Secretary shall maintain a list 

11 of covered chemical facilities that the Secretary des12 ignates under subparagraph (A). 

13 ‘‘(3) SUBMISSION OF INFORMATION.—In mak14 ing a determination whether to designate a chemical 

15 facility as a covered chemical facility under para16 graph (1), the Secretary may require the submission 

17 of information from an owner or operator of a chem18 ical facility with respect to the quantities of sub19 stances of concern that the owner or operator pos20 sesses or plans to possess. 

21 ‘‘(c) ASSIGNMENT OF COVERED CHEMICAL FACILI22 TIES TO RISK-BASED TIERS.— 

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

24 each covered chemical facility to 1 of 4 risk-based 

25 tiers, as established by the Secretary, with tier 1 


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1 representing the highest degree of risk and tier 4 

2 representing the lowest degree of risk. 

3 ‘‘(2) PROVISION OF INFORMATION.—The owner 

4 or operator of a covered chemical facility shall pro5 vide, at the request of the Secretary, any informa6 tion in addition to information required by the Sec7 retary under subsection (b)(3) that may be nec8 essary for the Secretary to assign the chemical facil9 ity to the appropriate tier under paragraph (1). 

10 ‘‘(3) NOTIFICATION.— 

11 ‘‘(A) IN GENERAL.—Not later than 60 

12 days after the date on which the Secretary de13 termines that a chemical facility is a covered 

14 chemical facility or is no longer a covered chem15 ical facility or changes the tier assignment of a 

16 covered chemical facility under paragraph (1), 

17 the Secretary shall notify the owner or operator 

18 of the chemical facility of the determination or 

19 change. 

20 ‘‘(B) REQUIRED INFORMATION.—A notifi21 cation made by the Secretary under subpara22 graph (A) shall include— 

23 ‘‘(i) the reason for the determination 

24 or change described in subparagraph (A); 

25 and 


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1 ‘‘(ii) upon the request of the owner or 

2 operator of a covered chemical facility— 

3 ‘‘(I) the number of individuals at 

4 risk of death, injury, or severe adverse 

5 effects to human health as a result of 

6 a worst case chemical facility terrorist 

7 incident at the covered chemical facil8 ity; 

9 ‘‘(II) information relating to why 

10 the covered chemical facility is consid11 ered critical; and 

12 ‘‘(III) the proximity or inter13 relationship of the covered chemical 

14 facility to other critical infrastructure. 

15 ‘‘(d) REQUIREMENT FOR REVIEW.—The Secretary— 

16 ‘‘(1) shall periodically review— 

17 ‘‘(A) the designation of a chemical sub18 stance as a substance of concern and the 

19 threshold quantity for the substance under sub20 section (a)(1); and 

21 ‘‘(B) whether a chemical facility meets the 

22 criteria under subsection (b)(1); and 

23 ‘‘(2) may, at any time, determine whether a 

24 chemical facility is a covered chemical facility or 


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1 change the tier to which the covered chemical facility 

2 is assigned under subsection (c)(1). 

3 ‘‘(e) PROVISION OF THREAT-RELATED INFORMA4 TION.—The Secretary shall provide to the owner or oper5 ator or security officer of a covered chemical facility threat 

6 information relating to probable threats to the covered 

7 chemical facility and methods that could be used in a 

8 chemical facility terrorist incident in order to assist the 

9 owner or operator in effectively assessing the 

10 vulnerabilities to the covered chemical facility. 

11 ‘‘SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND 

12 SITE SECURITY PLANS. 

13 ‘‘(a) IN GENERAL.— 

14 ‘‘(1) REQUIREMENT.—The Secretary shall— 

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

16 procedures for security vulnerability assess17 ments and site security plans required for cov18 ered chemical facilities under this paragraph; 

19 ‘‘(B) require the owner or operator of each 

20 covered chemical facility to— 

21 ‘‘(i) conduct and submit to the Sec22 retary an assessment of the vulnerability of 

23 the covered chemical facility to a range of 

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1 ing an incident that results in a worst-case 

2 release of a substance of concern; 

3 ‘‘(ii) prepare, implement, and submit 

4 to the Secretary a site security plan for the 

5 covered chemical facility that addresses the 

6 security vulnerability assessment and 

7 meets the risk-based chemical security per8 formance standards established under sub9 section (c); 

10 ‘‘(iii) in developing the security vul11 nerability assessment and site security 

12 plan, include participation by— 

13 ‘‘(I) not less than 1 supervisory 

14 employee of the covered chemical fa15 cility; 

16 ‘‘(II) not less than 1 non17 supervisory employee of the covered 

18 chemical facility; and 

19 ‘‘(III) not less than 1 employee 

20 representative from each bargaining 

21 agent at the covered chemical facility, 

22 if any; and 

23 ‘‘(iv) include, with the submission of 

24 the security vulnerability assessment and 

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1 ical facility, a signed statement by the 

2 owner or operator of the covered chemical 

3 facility that certifies that the submission is 

4 provided to the Secretary with knowledge 

5 of the possible penalties under section 

6 2107; 

7 ‘‘(C) set deadlines, by tier, for the comple8 tion of security vulnerability assessments and 

9 site security plans; 

10 ‘‘(D) upon request, as necessary, and to 

11 the extent that resources permit, provide tech12 nical assistance to a covered chemical facility 

13 conducting a security vulnerability assessment 

14 or site security plan; 

15 ‘‘(E) establish specific deadlines and re16 quirements for the submission by a covered 

17 chemical facility of information describing— 

18 ‘‘(i) any change in the use by the cov19 ered chemical facility of more than a 

20 threshold amount of any substance of con21 cern that may affect the requirements of 

22 the covered chemical facility under this 

23 title; or 

24 ‘‘(ii) any material modification to the 

25 operations or site of the covered chemical 


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1 facility that may affect the security vulner2 ability assessment or site security plan 

3 submitted by the covered chemical facility; 

4 ‘‘(F) require the owner or operator of a 

5 covered chemical facility to review and resubmit 

6 a security vulnerability assessment or site secu7 rity plan not less frequently than once every 5 

8 years; 

9 ‘‘(G) not later than 180 days after the 

10 date on which the Secretary receives a security 

11 vulnerability assessment or site security plan 

12 under this paragraph— 

13 ‘‘(i) review and approve or disapprove 

14 the security vulnerability assessment or 

15 site security plan; and 

16 ‘‘(ii) notify the covered chemical facil17 ity of the approval or disapproval; and 

18 ‘‘(H) establish, as appropriate, modified or 

19 separate standards, protocols, and procedures 

20 for security vulnerability assessments and site 

21 security plans for covered chemical facilities 

22 that are also academic laboratories. 

23 ‘‘(2) INHERENTLY GOVERNMENTAL FUNC24 TION.—The approval or disapproval of a security 

25 vulnerability assessment or site security plan by the 


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1 Secretary under this section is an inherently govern2 mental function. 

3 ‘‘(b) PARTICIPATION IN PREPARATION OF SECURITY

4 VULNERABILITY ASSESSMENTS OR SITE SECURITY

5 PLANS.—Any person selected by the owner or operator of 

6 a covered chemical facility or by a certified or recognized 

7 bargaining agent of a covered chemical facility to partici8 pate in the development of the security vulnerability as9 sessment or site security plan for the covered chemical fa10 cility shall be permitted to participate if the person pos11 sesses knowledge, experience, training, or education rel12 evant to the portion of the security vulnerability assess13 ment or site security plan on which the person is partici14 pating. 

15 ‘‘(c) CHEMICAL FACILITY SECURITY PERFORMANCE

16 STANDARDS.—The Secretary shall establish risk-based 

17 performance standards to ensure or enhance the security 

18 of a covered chemical facility against a chemical facility 

19 terrorist incident that are designed to address— 

20 ‘‘(1) restricting the area perimeter of the cov21 ered chemical facility; 

22 ‘‘(2) securing site assets; 

23 ‘‘(3) screening and controlling access to the cov24 ered chemical facility and to restricted areas within 

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1 ing individuals and vehicles as they enter, includ2 ing— 

3 ‘‘(A) measures to deter the unauthorized 

4 introduction of dangerous substances and de5 vices that may facilitate a chemical facility ter6 rorist incident or actions having serious nega7 tive consequences for the population sur8 rounding the covered chemical facility; and 

9 ‘‘(B) measures implementing a regularly 

10 updated identification system that checks the 

11 identification of covered chemical facility per12 sonnel and other persons seeking access to the 

13 covered chemical facility and that discourages 

14 abuse through established disciplinary meas15 ures; 

16 ‘‘(4) methods to deter, detect, and delay a 

17 chemical facility terrorist incident, creating sufficient 

18 time between detection of a chemical facility ter19 rorist incident and the point at which the chemical 

20 facility terrorist incident becomes successful, includ21 ing measures to— 

22 ‘‘(A) deter vehicles from penetrating the 

23 perimeter of the covered chemical facility, gain24 ing unauthorized access to restricted areas, or 


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1 otherwise presenting a hazard to potentially 

2 critical targets; 

3 ‘‘(B) deter chemical facility terrorist inci4 dents through visible, professional, well-main5 tained security measures and systems, includ6 ing— 

7 ‘‘(i) security personnel; 

8 ‘‘(ii) detection systems; 

9 ‘‘(iii) barriers and barricades; and 

10 ‘‘(iv) hardened or reduced value tar11 gets; 

12 ‘‘(C) detect chemical facility terrorist inci13 dents at early stages through— 

14 ‘‘(i) counter-surveillance at the site of 

15 the covered chemical facility; 

16 ‘‘(ii) frustration of opportunity to ob17 serve potential targets; 

18 ‘‘(iii) site surveillance and sensing sys19 tems; and 

20 ‘‘(iv) barriers and barricades; and 

21 ‘‘(D) delay a chemical facility terrorist in22 cident for a sufficient period of time so as to 

23 allow appropriate response through— 

24 ‘‘(i) onsite security response; 

25 ‘‘(ii) barriers and barricades; 


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1 ‘‘(iii) hardened targets; and 

2 ‘‘(iv) well-coordinated response plan3 ning; 

4 ‘‘(5) securing and monitoring the shipping, re5 ceipt, and storage of a substance of concern for the 

6 covered chemical facility; 

7 ‘‘(6) deterring theft or diversion of a substance 

8 of concern; 

9 ‘‘(7) deterring insider sabotage; 

10 ‘‘(8) deterring cyber sabotage, including by pre11 venting unauthorized onsite or remote access to crit12 ical process controls, including— 

13 ‘‘(A) supervisory control and data acquisi14 tion systems; 

15 ‘‘(B) distributed control systems; 

16 ‘‘(C) process control systems; 

17 ‘‘(D) industrial control systems; 

18 ‘‘(E) critical business systems; and 

19 ‘‘(F) other sensitive computerized systems; 

20 ‘‘(9) developing and conducting exercises of an 

21 internal emergency plan for owners, operators, and 

22 covered individuals for a covered chemical facility for 

23 responding to chemical facility terrorist incidents at 

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1 ning committee, State emergency response commis2 sion, local law enforcement officials, and emergency 

3 response providers to ensure an effective, collective 

4 response to terrorist incidents; 

5 ‘‘(10) maintaining effective monitoring, commu6 nications, and warning systems, including— 

7 ‘‘(A) measures designed to ensure that se8 curity systems and equipment are in good work9 ing order and inspected, tested, calibrated, and 

10 otherwise maintained; 

11 ‘‘(B) measures designed to regularly test 

12 security systems, note deficiencies, correct for 

13 detected deficiencies, and record results so that 

14 the results are available for inspection by the 

15 Secretary; and 

16 ‘‘(C) measures to allow the chemical facil17 ity to promptly identify and respond to security 

18 system and equipment failures or malfunctions; 

19 ‘‘(11) ensuring mandatory annual security 

20 training, exercises, and drills of covered chemical fa21 cility personnel appropriate to their roles, respon22 sibilities, and access to a substance of concern, in23 cluding participation by local law enforcement agen24 cies, and local emergency response providers, and 


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1 appropriate supervisory and non-supervisory facility 

2 employees and employee representatives, if any; 

3 ‘‘(12) performing personnel surety for individ4 uals with access to restricted areas or critical assets 

5 by conducting appropriate background checks and 

6 ensuring appropriate credentials for unescorted visi7 tors and covered chemical facility personnel, includ8 ing permanent and part-time personnel, temporary 

9 personnel, and contract personnel, including— 

10 ‘‘(A) measures designed to verify and vali11 date identity; 

12 ‘‘(B) measures designed to check criminal 

13 history; 

14 ‘‘(C) measures designed to verify and vali15 date legal authorization to work; and 

16 ‘‘(D) measures designed to identify individ17 uals with terrorist ties; 

18 ‘‘(13) escalating the level of protective measures 

19 for periods of elevated threat; 

20 ‘‘(14) specific threats, vulnerabilities, or risks 

21 identified by the Secretary for the covered chemical 

22 facility; 

23 ‘‘(15) reporting of significant security incidents 

24 to the Secretary and to appropriate local law en25 forcement officials; 


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1 ‘‘(16) identifying, investigating, reporting, and 

2 maintaining records of significant security incidents 

3 and suspicious activities at or near the covered 

4 chemical facility; 

5 ‘‘(17) establishing 1 or more officials and an or6 ganization responsible for— 

7 ‘‘(A) security; 

8 ‘‘(B) compliance with the standards estab9 lished under this subsection; 

10 ‘‘(C) serving as the point of contact for in11 cident management purposes with Federal 

12 agencies, agencies of State or local government 

13 (including law enforcement agencies), and emer14 gency response providers; and 

15 ‘‘(D) coordination with Federal agencies, 

16 agencies of State or local government (including 

17 law enforcement agencies), and emergency re18 sponse providers regarding plans and security 

19 measures for the collective response to a chem20 ical facility terrorist incident; 

21 ‘‘(18) maintaining appropriate records relating 

22 to the security of the covered chemical facility, in23 cluding a copy of the most recent security vulner24 ability assessment and site security plan, at the cov25 ered chemical facility; 


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1 ‘‘(19) assessing and, as appropriate, using 

2 methods to reduce the consequences of a terrorist 

3 attack; 

4 ‘‘(20) methods to recover or mitigate the re5 lease of a substance of concern in the event of a 

6 chemical facility terrorist incident; 

7 ‘‘(21) methods to mitigate the risks of exposure 

8 to chemical agents by maintaining an adequate sup9 ply of equipment and products to provide for decon10 tamination procedures designed to neutralize the 

11 chemical agents; and 

12 ‘‘(22) any additional security performance 

13 standards the Secretary may specify. 

14 ‘‘(d) 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 sub19 mitted by covered chemical facilities under sub20 section (a). 

21 ‘‘(2) REQUIREMENTS.—In establishing the risk22 based chemical security performance standards 

23 under paragraph (1), the Secretary shall— 

24 ‘‘(A) require separate and, as appropriate, 

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1 rity performance standards for site security 

2 plans as the level of risk associated with the 

3 tier increases; and 

4 ‘‘(B) permit each covered chemical facility 

5 that submits a site security plan to select a 

6 combination of security measures that satisfy 

7 the risk-based chemical security performance 

8 standards established by the Secretary under 

9 this subsection. 

10 ‘‘(e) COLLOCATED CHEMICAL FACILITIES.—The Sec11 retary may allow an owner or operator of a covered chem12 ical facility that is located geographically close, as deter13 mined by the Secretary, to another covered chemical facil14 ity to develop and implement coordinated security vulner15 ability assessments and site security plans. 

16 ‘‘(f) ALTERNATE SECURITY PROGRAMS AS COMPO17 NENT OF SECURITY VULNERABILITY ASSESSMENT AND

18 SITE SECURITY PLAN.— 

19 ‘‘(1) ACCEPTANCE OF PROGRAM.—At the re20 quest of an owner or operator of a covered chemical 

21 facility, the Secretary may accept an alternate secu22 rity program submitted by the owner or operator as 

23 a component of the security vulnerability assessment 

24 or site security plan required under this section, if 

25 the Secretary determines that the alternate security 


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1 program, in combination with other components of 

2 the security vulnerability assessment and site secu3 rity plan submitted by the owner or operator of the 

4 covered chemical facility— 

5 ‘‘(A) meets the requirements under this 

6 title and the regulations promulgated under this 

7 title; 

8 ‘‘(B) provides the level of security that is 

9 equivalent to the level of security required 

10 under this title and the regulations promulgated 

11 under this title; and 

12 ‘‘(C) includes employee participation as re13 quired under subsection (a)(1)(B)(iii). 

14 ‘‘(2) SECRETARIAL REVIEW REQUIRED.—Noth15 ing in this subsection shall relieve the Secretary of 

16 the obligation to— 

17 ‘‘(A) review a security vulnerability assess18 ment or site security plan submitted by a cov19 ered chemical facility under this section; and 

20 ‘‘(B) approve or disapprove the security 

21 vulnerability assessment or site security plan on 

22 an individual basis according to the deadlines 

23 established under subsection (a). 

24 ‘‘(3) OBLIGATIONS OF COVERED CHEMICAL FA25 CILITY UNAFFECTED.—Nothing in this subsection 


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1 shall relieve a covered chemical facility of the obliga2 tion and responsibility to comply with any require3 ment under this title. 

4 ‘‘(4) PERSONNEL SURETY ALTERNATE SECU5 RITY PROGRAM.—Upon application from a nonprofit 

6 personnel surety accrediting organization acting on 

7 behalf of, and with written authorization from, the 

8 owner or operator of a covered chemical facility, the 

9 Secretary may accept a personnel surety alternate 

10 security program that— 

11 ‘‘(A) meets the requirements of section 

12 2115; and 

13 ‘‘(B) provides for a background check 

14 process that is— 

15 ‘‘(i) expedited, affordable, reliable, 

16 and accurate; 

17 ‘‘(ii) fully protective of the rights of 

18 covered individuals through procedures 

19 that are consistent with the privacy protec20 tions available under the Fair Credit Re21 porting Act (15 U.S.C. 1681 et seq.); and 

22 ‘‘(iii) a single background check con23 sistent with a risk-based tiered program. 

24 ‘‘(g) OTHER AUTHORITIES.— 

25 ‘‘(1) REGULATION OF MARITIME FACILITIES.— 


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1 ‘‘(A) RISK-BASED TIERING.—The owner or 

2 operator of a chemical facility required to sub3 mit a facility security plan under section 

4 70103(c) of title 46, United States Code, shall 

5 be required to submit information to the Sec6 retary necessary to— 

7 ‘‘(i) determine whether to designate 

8 the chemical facility as a covered chemical 

9 facility; and 

10 ‘‘(ii) assign the chemical facility to a 

11 risk-based tier under section 2102 of this 

12 title. 

13 ‘‘(B) ADDITIONAL MEASURES.—Subject to 

14 subparagraph (C), in the case of a facility for 

15 which a facility security plan is required to be 

16 submitted under section 70103(c) of title 46, 

17 United States Code, that is designated as a cov18 ered chemical facility, the Commandant of the 

19 Coast Guard, after consultation with the Sec20 retary, shall require the owner or operator of 

21 the facility to update the security vulnerability 

22 assessments and facility security plans required 

23 under section 70103(c) of title 46, United 

24 States Code, if necessary, to ensure a level of 

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1 alent to the level of security required by regula2 tions promulgated under this title, including the 

3 requirements under section 2111, in the same 

4 manner as other covered chemical facilities in 

5 this title. 

6 ‘‘(C) PERSONNEL SURETY.— 

7 ‘‘(i) EXCEPTION.—The owner or oper8 ator of a covered chemical facility that has 

9 a facility security plan approved under sec10 tion 70103(c) of title 46, United States 

11 Code, shall not be required to update or 

12 amend the facility security plan in order to 

13 meet the requirements under section 2115 

14 of this title. 

15 ‘‘(ii) EQUIVALENT ACCESS.—An indi16 vidual described in section 2115(b)(1)(B) 

17 who has been granted access to restricted 

18 areas or critical assets by the owner or op19 erator of a facility for which a facility se20 curity plan is required to be submitted 

21 under section 70103(c) of title 46, United 

22 States Code, may be considered by the 

23 owner or operator to have satisfied the re24 quirement for passing a security back25 ground check required under section 2115 


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1 for purposes of granting the individual ac2 cess to restricted areas or critical assets of 

3 a covered chemical facility that is owned or 

4 operated by the same owner or operator. 

5 ‘‘(D) INFORMATION SHARING AND PRO6 TECTION.—Notwithstanding section 70103(d) 

7 of title 46, United States Code, the Com8 mandant of the Coast Guard, after consultation 

9 with the Secretary, shall apply the information 

10 sharing and protection requirements in section 

11 2110 of this title to a facility described in sub12 paragraph (B). 

13 ‘‘(E) ENFORCEMENT.—The Secretary shall 

14 establish, by rule, procedures to ensure that an 

15 owner or operator of a covered chemical facility 

16 that is required to update the security vulner17 ability assessment and facility security plan for 

18 the covered chemical facility under subpara19 graph (B) is in compliance with this title. 

20 ‘‘(F) FORMAL AGREEMENT.—The Sec21 retary shall— 

22 ‘‘(i) require the Office of Infrastruc23 ture Protection and the Coast Guard to 

24 enter into a formal agreement detailing the 

25 respective roles and responsibilities of the 


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1 Office of Infrastructure Protection and the 

2 Coast Guard in carrying out this title, 

3 which shall ensure that the enforcement 

4 and compliance requirements under this 

5 title and section 70103 of title 46, United 

6 States Code, are not conflicting or duplica7 tive; and 

8 ‘‘(ii) designate the agency responsible 

9 for enforcing this title with respect to cov10 ered chemical facilities for which facility 

11 security plans are required to be submitted 

12 under section 70103(c) of title 46, United 

13 States Code, consistent with the require14 ments of subparagraphs (B) and (D). 

15 ‘‘(2) COORDINATION OF STORAGE LICENSING

16 OR PERMITTING REQUIREMENT.—In the case of any 

17 storage required to be licensed or permitted under 

18 chapter 40 of title 18, United States Code, the Sec19 retary shall prescribe the rules and regulations for 

20 the implementation of this section, with the concur21 rence of the Attorney General, and avoid unneces22 sary duplication of regulatory requirements. 

23 ‘‘(h) ROLE OF EMPLOYEES.— 

24 ‘‘(1) DESCRIPTION OF ROLE REQUIRED.—A site 

25 security plan for an owner or operator of a covered 


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1 chemical facility shall describe the roles or respon2 sibilities that covered individuals are expected to per3 form to deter or respond to a chemical facility ter4 rorist incident. 

5 ‘‘(2) ANNUAL TRAINING FOR EMPLOYEES.— 

6 ‘‘(A) IN GENERAL.—The owner or operator 

7 of a covered chemical facility shall annually pro8 vide each covered individual with a role or re9 sponsibility referred to in paragraph (1) at the 

10 covered chemical facility with not less than 8 

11 hours of training. 

12 ‘‘(B) REQUIREMENTS.—The training re13 quired under subparagraph (A) shall, as rel14 evant to the role or responsibility of the covered 

15 individual— 

16 ‘‘(i) include an identification and dis17 cussion of substances of concern; 

18 ‘‘(ii) include a discussion of possible 

19 consequences of a chemical facility ter20 rorist incident; 

21 ‘‘(iii) review and include exercises of 

22 the site security plan of the covered chem23 ical facility, including any requirements for 

24 differing threat levels; 


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1 ‘‘(iv) include a review of information 

2 protection requirements; 

3 ‘‘(v) include a discussion of physical 

4 and cyber security equipment, systems, 

5 and methods used to achieve chemical se6 curity performance standards; 

7 ‘‘(vi) allow training with other rel8 evant participants, including Federal em9 ployees, employees of a State or local gov10 ernment, and emergency response pro11 viders, where appropriate; 

12 ‘‘(vii) use national voluntary con13 sensus standards, chosen jointly with em14 ployee representatives, if any; 

15 ‘‘(viii) allow instruction through gov16 ernment training programs, chemical facili17 ties, academic institutions, nonprofit orga18 nizations, industry and private organiza19 tions, employee organizations, and other 

20 relevant entities that provide such training; 

21 ‘‘(ix) use multiple training media and 

22 methods; 

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1 cluding procedures to mitigate the effects 

2 of a chemical facility terrorist incident; and 

3 ‘‘(xi) include review and discussion of 

4 methods to reduce the consequences of a 

5 terrorist attack that are applicable to the 

6 covered chemical facility. 

7 ‘‘(3) EQUIVALENT TRAINING.—An owner or op8 erator of a covered chemical facility may satisfy the 

9 training requirement described in clause (i), (ii), 

10 (iii), (iv), (v), or (x) of subparagraph (2)(B) for a 

11 covered individual with roles or responsibilities under 

12 paragraph (1) through training that the owner or 

13 operator certifies is equivalent, in a manner pre14 scribed by the Secretary. 

15 ‘‘(4) WORKER TRAINING GRANT PROGRAM.— 

16 ‘‘(A) AUTHORITY.—The Secretary may 

17 make grants to, and enter into cooperative 

18 agreements with, eligible entities to provide for 

19 the training and education of— 

20 ‘‘(i) covered individuals with roles or 

21 responsibilities described in paragraph (1); 

22 and 

23 ‘‘(ii) emergency response providers 

24 who would respond to a chemical facility 

25 terrorist incident. 


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1 ‘‘(B) ADMINISTRATION.—The Secretary 

2 shall seek to enter into an agreement with the 

3 Director of the National Institute for Environ4 mental Health Sciences, or with the head of an5 other Federal or State agency, to make and ad6 minister grants or cooperative agreements 

7 under this paragraph. 

8 ‘‘(C) USE OF FUNDS.—Amounts provided 

9 under this paragraph shall be used to provide 

10 for the training and education of covered indi11 viduals with roles or responsibilities described in 

12 paragraph (1) and emergency response pro13 viders, including— 

14 ‘‘(i) the annual mandatory training 

15 specified in paragraph (2); and 

16 ‘‘(ii) other appropriate training to 

17 protect nearby persons, property, critical 

18 infrastructure, or the environment from 

19 the effects of a chemical facility terrorist 

20 incident. 

21 ‘‘(D) ELIGIBLE ENTITIES.—In this para22 graph, the term ‘eligible entity’ means a non23 profit organization with demonstrated experi24 ence in implementing and operating successful 


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1 health and safety or security training programs 

2 for employees or emergency response providers. 

3 ‘‘(E) PRESUMPTION OF CONGRESS RELAT4 ING TO COMPETITIVE PROCEDURES.— 

5 ‘‘(i) PRESUMPTION.—It is the pre6 sumption of Congress that grants awarded 

7 under this paragraph will be awarded 

8 using competitive procedures based on 

9 merit. 

10 ‘‘(ii) REPORT TO CONGRESS.—If the 

11 Secretary awards grants under this para12 graph without using competitive proce13 dures, the Secretary shall submit to Con14 gress a report explaining why competitive 

15 procedures were not used. 

16 ‘‘(i) STATE, REGIONAL, OR LOCAL GOVERNMENTAL

17 ENTITIES.—A covered chemical facility may not be re18 quired under the law of a State or local government to 

19 provide a security vulnerability assessment or site security 

20 plan to any entity of a State, regional government, or local 

21 government entity solely based on the requirement under 

22 subsection (a) that the covered chemical facility submit a 

23 security vulnerability assessment or site security plan to 

24 the Secretary. 


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1 ‘‘SEC. 2104. SITE INSPECTIONS. 

2 ‘‘(a) RIGHT OF ENTRY.—For purposes of carrying 

3 out this title, the Secretary shall have, at a reasonable 

4 time and on presentation of credentials, a right of entry 

5 to, on, or through any property of a covered chemical facil6 ity or any property on which any record required to be 

7 maintained under this section is located. 

8 ‘‘(b) INSPECTIONS AND VERIFICATIONS.— 

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

10 such time and place as the Secretary determines to 

11 be reasonable and appropriate, conduct security in12 spections and verifications of a covered chemical fa13 cility. 

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

15 compliance with this title, including any regulations 

16 or requirements adopted by the Secretary in further17 ance of the purposes of this title, in conducting an 

18 inspection or verification under paragraph (1), the 

19 Secretary shall have access to the owners, operators, 

20 employees, and employee representatives, if any, of 

21 a covered chemical facility. 

22 ‘‘(c) UNANNOUNCED INSPECTIONS.— 

23 ‘‘(1) IN GENERAL.—In addition to any inspec24 tion conducted under subsection (b), the Secretary 

25 shall conduct unannounced facility inspections of 


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1 covered chemical facilities assigned to tier 1 or tier 

2 2 under section 2102(c)(1). 

3 ‘‘(2) REQUIREMENTS.—The inspections re4 quired under this subsection shall be— 

5 ‘‘(A) conducted without prior notice to the 

6 owner, operator, or any employee of the covered 

7 chemical facility; 

8 ‘‘(B) designed to evaluate at the covered 

9 chemical facility undergoing inspection— 

10 ‘‘(i) the ability of the covered chemical 

11 facility to prevent a chemical facility ter12 rorist incident that the site security plan of 

13 the covered chemical facility is intended to 

14 prevent; 

15 ‘‘(ii) the ability of the covered chem16 ical facility to protect against security 

17 threats that are required to be addressed 

18 by the site security plan of the covered 

19 chemical facility; and 

20 ‘‘(iii) any weaknesses in the site secu21 rity plan of the covered chemical facility; 

22 ‘‘(C) conducted so as not to affect the ac23 tual security, physical integrity, safety, or reg24 ular operations of the covered chemical facility 


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1 or the employees of the covered chemical facility 

2 while the inspection is conducted; and 

3 ‘‘(D) conducted— 

4 ‘‘(i) every 2 years in the case of a cov5 ered chemical facility assigned to tier 1; 

6 and 

7 ‘‘(ii) every 4 years in the case of a 

8 covered chemical facility assigned to tier 2. 

9 ‘‘(d) CHEMICAL FACILITY INSPECTORS AUTHOR10 IZED.—During fiscal years 2011 and 2012, and subject 

11 to the availability of appropriations, the Secretary shall 

12 increase by not less than 100 the total number of chemical 

13 facility inspectors within the Department to ensure com14 pliance with this title. 

15 ‘‘(e) CONFIDENTIAL COMMUNICATIONS.—The Sec16 retary shall offer non-supervisory employees of a covered 

17 chemical facility the opportunity to confidentially commu18 nicate information relevant to the compliance or non19 compliance of the employer with this title, including com20 pliance or noncompliance with any regulation or require21 ment adopted by the Secretary under this title. 

22 ‘‘(f) RIGHT TO ACCOMPANY DURING PHYSICAL IN23 SPECTION.—If a representative of the owner or operator 

24 of a covered chemical facility will accompany the Secretary 

25 on a physical inspection of the covered chemical facility, 


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1 an employee representative of each certified or recognized 

2 bargaining agent at the covered chemical facility, if any, 

3 or, if none, a nonsupervisory employee, shall be offered 

4 the opportunity to accompany the Secretary during the 

5 physical inspection to aid in the inspection. 

6 ‘‘SEC. 2105. RECORDS. 

7 ‘‘(a) REQUEST FOR RECORDS.—For purposes of car8 rying out this title, the Secretary may require submission 

9 of, or upon presentation of credentials and at reasonable 

10 times may obtain access to and copy, any records, includ11 ing any records maintained in electronic format, necessary 

12 for reviewing or analyzing a security vulnerability assess13 ment, or site security plan submitted under section 2103, 

14 or for assessing the implementation of a site security plan. 

15 ‘‘(b) PROPER HANDLING OF RECORDS.—The Sec16 retary shall ensure that any records accessed under sub17 section (a) are handled and secured appropriately in ac18 cordance with section 2110. 

19 ‘‘SEC. 2106. TIMELY SHARING OF THREAT INFORMATION. 

20 ‘‘(a) RESPONSIBILITIES OF SECRETARY.—Upon the 

21 receipt of information concerning a threat that is relevant 

22 to a certain covered chemical facility, the Secretary shall 

23 provide the information in a timely manner, to the max24 imum extent practicable under applicable authority and in 

25 the interests of national security, to— 


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1 ‘‘(1) the owner, operator, or security officer of 

2 the covered chemical facility; 

3 ‘‘(2) a representative of each recognized or cer4 tified bargaining agent at the covered chemical facil5 ity, if any; and 

6 ‘‘(3) relevant authorities of State or local gov7 ernment, including the State Homeland Security Ad8 visor, if any. 

9 ‘‘(b) RESPONSIBILITIES OF OWNER OR OPERATOR.— 

10 The Secretary shall require the owner or operator of a 

11 covered chemical facility to provide to the Secretary in a 

12 timely manner, information concerning— 

13 ‘‘(1) a threat about any significant security in14 cident or threat to the covered chemical facility; or 

15 ‘‘(2) any intentional or unauthorized penetra16 tion of the physical security or cyber security of the 

17 covered chemical facility, whether successful or un18 successful. 

19 ‘‘SEC. 2107. ENFORCEMENT. 

20 ‘‘(a) REVIEW OF SECURITY VULNERABILITY ASSESS21 MENT AND SITE SECURITY PLAN.— 

22 ‘‘(1) DISAPPROVAL.—The Secretary shall dis23 approve a security vulnerability assessment or site 

24 security plan submitted under this title if the Sec25 retary determines that— 


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1 ‘‘(A) the security vulnerability assessment 

2 or site security plan does not comply with the 

3 standards, protocols, or procedures under sec4 tion 2103(a)(1)(A); or 

5 ‘‘(B) in the case of a site security plan— 

6 ‘‘(i) the site security plan or the im7 plementation of the site security plan is in8 sufficient to address vulnerabilities identi9 fied in a security vulnerability assessment, 

10 site inspection, or unannounced inspection 

11 of the covered chemical facility; or 

12 ‘‘(ii) the site security plan fails to 

13 meet all applicable chemical facility secu14 rity performance standards. 

15 ‘‘(2) NOTIFICATION OF DISAPPROVAL.—If the 

16 Secretary disapproves the security vulnerability as17 sessment or site security plan submitted by a cov18 ered chemical facility under this title or the imple19 mentation of a site security plan by a covered chem20 ical facility, the Secretary shall provide the owner or 

21 operator of the covered chemical facility a written 

22 notification of the disapproval not later than 14 days 

23 after the date on which the Secretary disapproves 

24 the security vulnerability assessment or site security 

25 plan, which shall— 


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1 ‘‘(A) include a clear explanation of defi2 ciencies in the security vulnerability assessment, 

3 site security plan, or implementation of the site 

4 security plan; and 

5 ‘‘(B) require the owner or operator of the 

6 covered chemical facility to— 

7 ‘‘(i) revise the security vulnerability 

8 assessment or site security plan to address 

9 any deficiencies; and 

10 ‘‘(ii) by such date as the Secretary de11 termines is appropriate, submit the revised 

12 security vulnerability assessment or site se13 curity plan to the Secretary. 

14 ‘‘(b) REMEDIES.— 

15 ‘‘(1) ORDER FOR COMPLIANCE.—If the Sec16 retary determines that an owner or operator of a 

17 covered chemical facility has violated or is in viola18 tion of any requirement of this title or has failed or 

19 is failing to address any deficiencies in the security 

20 vulnerability assessment, site security plan, or imple21 mentation of the site security plan for the covered 

22 chemical facility by such date as designated by the 

23 Secretary, the Secretary may— 

24 ‘‘(A) after providing notice to the owner or 

25 operator and an opportunity, in accordance 


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1 with the regulations issued under this title, for 

2 the owner or operator to seek review by the De3 partment of the determination of the Secretary, 

4 issue an order assessing an administrative pen5 alty of not more than $25,000 for each day be6 fore, on, or after the date of the order that the 

7 violation occurs or for each day after the date 

8 of the order that a failure to comply continues, 

9 requiring compliance immediately or within a 

10 specified time period, or both; or 

11 ‘‘(B) in a civil action, obtain appropriate 

12 equitable relief, a civil penalty of not more than 

13 $25,000 for each day before, on, or after the 

14 date of the order that the violation occurs or for 

15 each day after the date of the order that a fail16 ure to comply continues, or both. 

17 ‘‘(2) ORDER TO CEASE OPERATIONS.—If the 

18 Secretary determines that an owner or operator of 

19 a covered chemical facility continues to be in non20 compliance after an order for compliance is issued 

21 under paragraph (1), the Secretary may issue an 

22 order to the owner or operator to cease operations 

23 at the covered chemical facility until the Secretary 

24 determines the owner or operator is in compliance. 


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1 ‘‘(c) APPLICABILITY OF PENALTIES.—A penalty 

2 under subsection (b)(1) may be imposed for any violation 

3 of this title, including a violation of the whistleblower pro4 tections under section 2108. 

5 ‘‘SEC. 2108. WHISTLEBLOWER PROTECTIONS. 

6 ‘‘(a) ESTABLISHMENT.— 

7 ‘‘(1) IN GENERAL.—The Secretary shall estab8 lish and provide information to the public regarding 

9 a process by which an individual may submit a re10 port to the Secretary regarding problems, defi11 ciencies, or vulnerabilities at a covered chemical fa12 cility associated with the risk of a chemical facility 

13 terrorist incident. 

14 ‘‘(2) CONFIDENTIALITY.— 

15 ‘‘(A) IN GENERAL.—The Secretary shall 

16 keep confidential the identity of any individual 

17 who submits a report under this subsection. 

18 ‘‘(B) COMPLIANCE WITH SECTION 2110.—A 

19 report submitted under this subsection shall be 

20 treated as protected information under section 

21 2110 to the extent that the report does not con22 sist of publicly available information. 

23 ‘‘(3) ACKNOWLEDGMENT OF RECEIPT.—If a re24 port submitted under this subsection identifies the 

25 individual submitting the report, the Secretary shall 


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1 respond promptly to the individual to acknowledge 

2 receipt of the report. 

3 ‘‘(4) STEPS TO ADDRESS PROBLEMS.—The Sec4 retary shall— 

5 ‘‘(A) review and consider the information 

6 provided in a report submitted under this sub7 section; and 

8 ‘‘(B) as necessary, take appropriate steps 

9 under this title to address any problem, defi10 ciency, or vulnerability identified in the report. 

11 ‘‘(b) RETALIATION PROHIBITED.— 

12 ‘‘(1) PROHIBITION.—An owner or operator of a 

13 covered chemical facility, for-profit or nonprofit cor14 poration, association, or any contractor, subcon15 tractor or agent thereof, may not discharge an em16 ployee or otherwise discriminate against an employee 

17 with respect to compensation of the employee, terms, 

18 conditions, or other privileges of employment be19 cause the employee (or any individual acting on be20 half of the employee)— 

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

22 operator of a covered chemical facility, or the 

23 employer of the employee of an alleged violation 

24 of this title, including notification of such an alVerDate Mar 15 2010 22:33 Jul 16, 2010 Jkt 089200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\S3599.IS S3599

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1 leged violation through communications related 

2 to carrying out the job duties of the employee; 

3 ‘‘(B) refused to participate in any conduct 

4 that the employee reasonably believes is in non5 compliance with a requirement under this title, 

6 if the employee has identified the alleged non7 compliance to the employer; 

8 ‘‘(C) testified before or otherwise provided 

9 information relevant for Congress or for any 

10 Federal or State proceeding regarding any pro11 vision (or proposed provision) of this title; 

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

13 or is about to commence or cause to be com14 menced a proceeding under this title; 

15 ‘‘(E) testified, or is about to testify, in a 

16 proceeding under this title; or 

17 ‘‘(F) assisted or participated, or is about 

18 to assist or participate, in any manner in a pro19 ceeding under this title or in any other action 

20 to carry out the purposes of this title. 

21 ‘‘(2) ENFORCEMENT ACTION.— 

22 ‘‘(A) IN GENERAL.—An employee covered 

23 by this section who alleges discrimination by an 

24 employer in violation of paragraph (1) may 

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1 cedures, legal burdens of proof, and remedies 

2 applicable under subsections (d) through (h) of 

3 section 20109 of title 49, United States Code. 

4 ‘‘(B) DISTRICT COURT REVIEW.—An em5 ployee who brings an action under subpara6 graph (A) may seek review by a district court 

7 of the United States as set forth in subsection 

8 (d)(3) of section 20109 of title 49, United 

9 States Code not later than 90 days after receiv10 ing a written final determination by the Sec11 retary of Labor. 

12 ‘‘(3) PROHIBITED PERSONNEL PRACTICES AF13 FECTING THE DEPARTMENT.— 

14 ‘‘(A) IN GENERAL.—Notwithstanding any 

15 other provision of law, an individual holding or 

16 applying for a position within the Department 

17 shall be covered by— 

18 ‘‘(i) paragraphs (1), (8), and (9) of 

19 section 2302(b) of title 5, United States 

20 Code; 

21 ‘‘(ii) any provision of law imple22 menting paragraph (1), (8), or (9) of sec23 tion 2302(b) of title 5, United States 

24 Code, by providing any right or remedy 


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1 available to an employee or applicant for 

2 employment in the civil service; and 

3 ‘‘(iii) any rule or regulation prescribed 

4 under paragraph (1), (8), or (9) of section 

5 2302(b) of title 5, United States Code. 

6 ‘‘(B) RULE OF CONSTRUCTION.—Nothing 

7 in this paragraph shall be construed to affect 

8 any rights, apart from those referred to in sub9 paragraph (A), to which an individual described 

10 in subparagraph (A) might otherwise be enti11 tled to under law. 

12 ‘‘SEC. 2109. FEDERAL PREEMPTION. 

13 ‘‘This title does not preclude or deny any right of any 

14 State or unit of local government to adopt or enforce any 

15 regulation, requirement, or standard of performance with 

16 respect to a covered chemical facility that is more strin17 gent than a regulation, requirement, or standard of per18 formance issued under this title, or otherwise impair any 

19 right or jurisdiction of any State or unit of local govern20 ment with respect to covered chemical facilities within the 

21 State or unit of local government. 

22 ‘‘SEC. 2110. PROTECTION OF INFORMATION. 

23 ‘‘(a) PROHIBITION OF PUBLIC DISCLOSURE OF PRO24 TECTED INFORMATION.—Protected information— 


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1 ‘‘(1) shall be exempt from disclosure under sec2 tion 552 of title 5, United States Code; and 

3 ‘‘(2) shall not be made available under the law 

4 of any State or local government requiring disclosure 

5 of information or records. 

6 ‘‘(b) INFORMATION SHARING.— 

7 ‘‘(1) IN GENERAL.—The Secretary shall pre8 scribe such regulations, and may issue such orders, 

9 as necessary to prohibit the unauthorized disclosure 

10 of protected information. 

11 ‘‘(2) SHARING OF PROTECTED INFORMATION.— 

12 ‘‘(A) IN GENERAL.—The regulations pre13 scribed under paragraph (1) shall provide 

14 standards for and facilitate the appropriate 

15 sharing of protected information with and be16 tween— 

17 ‘‘(i) Federal agencies and agencies of 

18 State and local governments; 

19 ‘‘(ii) emergency response providers; 

20 ‘‘(iii) law enforcement officials; 

21 ‘‘(iv) designated supervisory and non22 supervisory covered chemical facility per23 sonnel with security, operational, or fidu24 ciary responsibility for the covered chem25 ical facility; and 


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1 ‘‘(v) designated employee representa2 tives for a covered chemical facility, if any. 

3 ‘‘(B) REQUIREMENTS.—The standards re4 quired to be established under subparagraph 

5 (A) shall include procedures for the sharing of 

6 all portions of a security vulnerability assess7 ment or site security plan of a covered chemical 

8 facility relating to the roles and responsibilities 

9 of covered individuals under section 2103(h)(1) 

10 with a representative of each certified or recog11 nized bargaining agent representing the covered 

12 individuals, if any, or, if none, with not less 

13 than 1 supervisory and not less than 1 non-su14 pervisory employee with roles or responsibilities 

15 under section 2103(h)(1). 

16 ‘‘(C) PENALTIES.— 

17 ‘‘(i) IN GENERAL.—Protected infor18 mation shall not be shared except in ac19 cordance with the standards provided by 

20 the regulations prescribed under paragraph 

21 (1). 

22 ‘‘(ii) KNOWING VIOLATION.—Any per23 son that discloses protected information in 

24 knowing violation of the regulations issued 

25 under paragraph (1) shall— 


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1 ‘‘(I) be fined under title 18, 

2 United States Code, imprisoned for 

3 not more than 1 year, or both; and 

4 ‘‘(II) in the case of a Federal of5 ficeholder or employee, removed from 

6 Federal office or employment. 

7 ‘‘(c) TREATMENT OF INFORMATION IN ADJUDICA8 TIVE PROCEEDINGS.—In any judicial or administrative 

9 proceeding, protected information shall be treated in a 

10 manner consistent with the treatment of sensitive security 

11 information under section 525 of the Department of 

12 Homeland Security Appropriations Act, 2007 (Public Law 

13 109–295; 120 Stat. 1381). 

14 ‘‘(d) OTHER OBLIGATIONS UNAFFECTED.—Except 

15 as provided in section 2103(i), nothing in this section af16 fects any obligation of the owner or operator of a chemical 

17 facility under any other law to submit or make available 

18 information required by such other law to— 

19 ‘‘(1) employees of the chemical facility; 

20 ‘‘(2) employee organizations; 

21 ‘‘(3) health professionals; 

22 ‘‘(4) emergency response organizations; or 

23 ‘‘(5) the Federal Government or a State or local 

24 government. 


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1 ‘‘(e) SUBMISSION OF INFORMATION TO CONGRESS.— 

2 Nothing in this title shall permit or authorize the with3 holding of information from Congress or any committee 

4 or subcommittee thereof. 

5 ‘‘(f) DISCLOSURE OF INDEPENDENTLY FURNISHED

6 INFORMATION.—Nothing in this title shall affect any au7 thority or obligation of a Federal agency or agency of a 

8 State or local government to protect or disclose any record 

9 or information that the agency obtains from a chemical 

10 facility under any other law. 

11 ‘‘SEC. 2111. METHODS TO REDUCE THE CONSEQUENCES OF 

12 A TERRORIST ATTACK. 

13 ‘‘(a) DEFINITION.—In this section, the term ‘feasible’ 

14 means feasible with the use of best technology, techniques, 

15 and other means that the Secretary finds, after examina16 tion for efficacy under operational conditions and not sole17 ly under laboratory conditions, are available for use at a 

18 covered chemical facility. 

19 ‘‘(b) ASSESSMENT REQUIRED.—The site security 

20 plan for a covered chemical facility shall include an assess21 ment of methods to reduce the consequences of a terrorist 

22 attack on the covered chemical facility, including— 

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

24 consequences of a terrorist attack implemented and 


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1 considered for implementation by the covered chem2 ical facility; 

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

4 the consequences of a terrorist attack, if already im5 plemented, has reduced, or, if implemented, could re6 duce, the potential extent of death, injury, or serious 

7 adverse effects to human health resulting from a re8 lease of a substance of concern; 

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

10 costs (including liabilities), personnel implications, 

11 savings, and applicability of implementing each 

12 method to reduce the consequences of a terrorist at13 tack; and 

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

15 operator of the covered chemical facility considered 

16 in conducting the assessment. 

17 ‘‘(c) IMPLEMENTATION.— 

18 ‘‘(1) IMPLEMENTATION.— 

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

20 of a covered chemical facility that is assigned to 

21 tier 1 or tier 2 because of the potential extent 

22 and likelihood of death, injury, or serious ad23 verse effects to human health, the environment, 

24 critical infrastructure, public health, homeland 

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1 omy from a release of a substance of concern 

2 at the covered chemical facility shall implement 

3 methods to reduce the consequences of a ter4 rorist attack on the covered chemical facility if 

5 the Director of the Office of Chemical Facility 

6 Security determines, using the assessment con7 ducted under subsection (b), that the implemen8 tation of the methods at the covered chemical 

9 facility— 

10 ‘‘(i)(I) would significantly reduce the 

11 risk of death, injury, or serious adverse ef12 fects to human health resulting from a 

13 chemical facility terrorist incident; and 

14 ‘‘(II) would not— 

15 ‘‘(aa) increase the interim stor16 age of a substance of concern outside 

17 the covered chemical facility; 

18 ‘‘(bb) directly result in the cre19 ation of a covered chemical facility as20 signed to tier 1 or tier 2 because of 

21 the potential extent and likelihood of 

22 death, injury, or serious adverse ef23 fects to human health, the environ24 ment, critical infrastructure, public 

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1 curity, or the national economy from 

2 a release of a substance of concern at 

3 the covered chemical facility; 

4 ‘‘(cc) result in the reassignment 

5 of a covered chemical facility from tier 

6 3 or tier 4 to tier 1 or tier 2 because 

7 of the potential extent and likelihood 

8 of death, injury, or serious adverse ef9 fects to human health, the environ10 ment, critical infrastructure, public 

11 health, homeland security, national se12 curity, or the national economy from 

13 a release of a substance of concern at 

14 the covered chemical facility; and 

15 ‘‘(dd) significantly increase the 

16 potential extent and likelihood of 

17 death, injury, or serious adverse ef18 fects to human health, the environ19 ment, critical infrastructure, public 

20 health, homeland security, national se21 curity, or the national economy from 

22 a release of a substance of concern 

23 due to a terrorist attack on the trans24 portation infrastructure of the United 

25 States; 


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1 ‘‘(ii) can feasibly be incorporated into 

2 the operation of the covered chemical facil3 ity; and 

4 ‘‘(iii) would not significantly and de5 monstrably impair the ability of the owner 

6 or operator of the covered chemical facility 

7 to continue the business of the covered 

8 chemical facility at its location. 

9 ‘‘(B) WRITTEN DETERMINATION.—A de10 termination made by the Director of the Office 

11 of Chemical Facility Security under subpara12 graph (A) shall be made in writing and include 

13 the basis and reasons for the determination, in14 cluding the analysis of the Director of the as15 sessment by the covered chemical facility of the 

16 technical feasibility, costs, avoided costs (includ17 ing liabilities), personnel implications, savings, 

18 and applicability of implementing each method 

19 to reduce the consequences of a terrorist attack. 

20 ‘‘(C) MARITIME FACILITIES.—With respect 

21 to a covered chemical facility for which a facil22 ity security plan is required under section 

23 70103(c) of title 46, United States Code, a 

24 written determination under subparagraph (A) 

25 shall be made only after consultation with the 


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1 Captain of the Port for the area in which the 

2 covered chemical facility is located. 

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

4 ‘‘(A) IN GENERAL.—Not later than 120 

5 days after receipt of a determination made by 

6 the Director under paragraph (1), an owner or 

7 operator of a covered chemical facility who is 

8 unable to comply with the determination shall 

9 provide to the Secretary a written explanation 

10 that— 

11 ‘‘(i) includes the reasons for non12 compliance; and 

13 ‘‘(ii) specifies whether the inability of 

14 owner or operator to comply arises under 

15 clause (ii) or (iii) of paragraph (1)(A), or 

16 both. 

17 ‘‘(B) REVIEW.— 

18 ‘‘(i) IN GENERAL.—Not later than 

19 120 days after receipt of an explanation 

20 submitted by an owner or operator of a 

21 covered chemical facility under subpara22 graph (A), the Secretary, after consulting 

23 with the owner or operator, as well as ex24 perts in the subjects of environmental 

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1 sign and engineering, process controls and 

2 implementation, maintenance, production 

3 and operations, chemical process safety, 

4 and occupational health, as appropriate, 

5 shall provide to the owner or operator a 

6 written determination of whether, in the 

7 discretion of the Secretary, implementation 

8 shall be required under paragraph (1). 

9 ‘‘(ii) DETERMINATION THAT IMPLE10 MENTATION IS REQUIRED.—If the Sec11 retary determines that implementation is 

12 required under clause (i), the Secretary 

13 shall issue an order that establishes the 

14 basis for the determination, including— 

15 ‘‘(I) the findings of the relevant 

16 experts; 

17 ‘‘(II) the specific methods se18 lected for implementation; and 

19 ‘‘(III) a schedule for implementa20 tion of the methods at the covered 

21 chemical facility. 

22 ‘‘(d) AGRICULTURAL SECTOR.— 

23 ‘‘(1) DEFINITIONS.—In this subsection: 

24 ‘‘(A) FARM SUPPLIES MERCHANT WHOLE25 SALER.—The term ‘farm supplies merchant 


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1 wholesaler’ means a covered chemical facility 

2 that is primarily engaged in the merchant 

3 wholesale distribution of farm supplies, includ4 ing animal feeds, fertilizers, agricultural chemi5 cals, pesticides, plant seeds, and plant bulbs. 

6 ‘‘(B) AGRICULTURAL END-USERS.—The 

7 term ‘agricultural end-users’ means facilities 

8 such as— 

9 ‘‘(i) farms, including crop, fruit, nut, 

10 and vegetable farms; 

11 ‘‘(ii) ranches and rangeland; 

12 ‘‘(iii) poultry, dairy, and equine facili13 ties; 

14 ‘‘(iv) turfgrass growers; 

15 ‘‘(v) golf courses; 

16 ‘‘(vi) nurseries; 

17 ‘‘(vii) floricultural operations; and 

18 ‘‘(viii) public and private parks. 

19 ‘‘(2) GUIDANCE FOR FARM SUPPLIES MER20 CHANT WHOLESALERS.— 

21 ‘‘(A) IN GENERAL.—The Secretary shall 

22 provide guidance and, as appropriate, tools, 

23 methodologies, or computer software, to assist 

24 farm supplies merchant wholesalers in com25 plying with this section.


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1 ‘‘(B) GRANTS AUTHORIZED.—The Sec2 retary may award grants to farm supplies mer3 chant wholesalers to assist compliance with sub4 section (b), and in awarding grants, shall give 

5 priority to farm supplies merchant wholesalers 

6 that, in the discretion of the Secretary, have the 

7 greatest need for the grants. 

8 ‘‘(3) ASSESSMENT OF AGRICULTURAL IM9 PACTS.—Not later than 6 months after the date of 

10 the enactment of this title, the Secretary shall sub11 mit an assessment of the potential impacts of com12 pliance with this section regarding the assessment 

13 and, as appropriate, implementation of methods to 

14 reduce the consequences of a terrorist attack on the 

15 agricultural sector to— 

16 ‘‘(A) the Committee on Homeland Security 

17 and Governmental Affairs, the Committee on 

18 Environment and Public Works, and the Com19 mittee on Agriculture, Nutrition and Forestry 

20 of the Senate; and 

21 ‘‘(B) the Committee on Homeland Secu22 rity, the Committee on Energy and Commerce, 

23 and the Committee on Agriculture of the House 

24 of Representatives. 


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1 ‘‘(4) CONSULTATION.—The assessment required 

2 under paragraph (3) shall be conducted by the Sec3 retary in consultation with other appropriate Fed4 eral agencies. 

5 ‘‘(5) REQUIREMENTS.—The assessment re6 quired under paragraph (3) shall include— 

7 ‘‘(A) data on the scope of agricultural fa8 cilities to which this title applies, including— 

9 ‘‘(i) the number and type of manufac10 turers, retailers, aerial commercial applica11 tors, and distributors of pesticide and fer12 tilizer required to assess methods to reduce 

13 the consequences of a terrorist attack 

14 under subsection (b); and 

15 ‘‘(ii) the number and type of manufac16 turers, retailers, aerial commercial applica17 tors, and distributors of pesticide and fer18 tilizer assigned to tier 1 or tier 2 by the 

19 Secretary because of the potential ex20 tent and likelihood of death, injury, or 

21 serious adverse effects to human health, 

22 the environment, critical infrastructure, 

23 public health, homeland security, national 

24 security, or the national economy from the 


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1 release of a substance of concern at the 

2 covered chemical facility; 

3 ‘‘(B) a survey of known methods, processes 

4 or practices, other than elimination of or ces5 sation of manufacturing of the pesticide or fer6 tilizer, that manufacturers, retailers, aerial 

7 commercial applicators, and distributors of pes8 ticide and fertilizer could use to reduce the con9 sequences of a terrorist attack, including an as10 sessment of the costs and technical feasibility of 

11 each such method, process, or practice; 

12 ‘‘(C) an analysis of how the assessment of 

13 methods to reduce the consequences of a ter14 rorist attack under subsection (b) by manufac15 turers, retailers, aerial commercial applicators, 

16 and distributors of pesticide and fertilizer, and, 

17 as appropriate, the implementation of methods 

18 to reduce the consequences of a terrorist attack 

19 by such manufacturers, retailers, aerial com20 mercial applicators, and distributors of pesticide 

21 and fertilizer subject to subsection (c), are like22 ly to impact agricultural end-users; and 

23 ‘‘(D) recommendations for how to mitigate 

24 any adverse impacts identified under subpara25 graph (C). 


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1 ‘‘(e) SMALL COVERED CHEMICAL FACILITIES.— 

2 ‘‘(1) DEFINITION.—For purposes of this sub3 section, the term ‘small covered chemical facility’ 

4 means a covered chemical facility that— 

5 ‘‘(A) has fewer than 350 employees em6 ployed at the covered chemical facility; and 

7 ‘‘(B) is not a branch or subsidiary of an8 other entity. 

9 ‘‘(2) GUIDANCE FOR SMALL COVERED CHEM10 ICAL FACILITIES.—The Secretary may provide guid11 ance and, as appropriate, tools, methodologies, or 

12 computer software, to assist small covered chemical 

13 facilities in complying with this section. 

14 ‘‘(3) LIMITATION ON IMPLEMENTATION OF

15 METHODS.—The Secretary may not require a small 

16 covered chemical facility to implement methods to 

17 reduce the consequences of a terrorist attack under 

18 subsection (c) unless the Secretary determines that 

19 the implementation of the methods at the small cov20 ered chemical facility do not significantly and de21 monstrably impair the ability of the owner or oper22 ator of the covered chemical facility to continue the 

23 business of the covered chemical facility at the loca24 tion of the covered chemical facility. 


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1 ‘‘(4) ASSESSMENT OF IMPACTS ON SMALL COV2 ERED CHEMICAL FACILITIES.— 

3 ‘‘(A) IN GENERAL.—Not later than 6 

4 months after the date of the enactment of this 

5 title, the Secretary shall submit an assessment 

6 of the potential effects on small covered chem7 ical facilities of compliance with this section re8 garding the assessment and, as appropriate, im9 plementation of methods to reduce the con10 sequences of a terrorist attack to— 

11 ‘‘(i) the Committee on Environment 

12 and Public Works and the Committee on 

13 Homeland Security and Governmental Af14 fairs of the Senate; and 

15 ‘‘(ii) the Committee on Energy and 

16 Commerce and the Committee on Home17 land Security of the House of Representa18 tives. 

19 ‘‘(B) REQUIREMENTS.—The assessment 

20 required under subparagraph (A) shall in21 clude— 

22 ‘‘(i) data on the scope of small cov23 ered chemical facilities to which this title 

24 applies, including— 


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1 ‘‘(I) the number and type of 

2 small covered chemical facilities that 

3 are required to assess methods to re4 duce the consequences of a terrorist 

5 attack under subsection (b); and 

6 ‘‘(II) the number and type of 

7 small covered chemical facilities as8 signed to tier 1 or tier 2 under section 

9 2102(c)(1) by the Secretary because 

10 of the potential extent and likelihood 

11 of death, injury, or serious adverse ef12 fects to human health, the environ13 ment, critical infrastructure, public 

14 health, homeland security, national se15 curity, or the national economy from 

16 the release of a substance of concern 

17 at the covered chemical facility; and 

18 ‘‘(ii) a discussion of how the Secretary 

19 plans to implement paragraph (3). 

20 ‘‘(f) PROVISION OF INFORMATION ON ALTERNATIVE

21 APPROACHES.— 

22 ‘‘(1) INFORMATION ON METHODS TO REDUCE

23 CONSEQUENCES OF A TERRORIST ACT.— 


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1 ‘‘(A) IN GENERAL.—Not later than 1 year 

2 after the date of enactment of the Secure 

3 Chemical Facilities Act, the Secretary shall— 

4 ‘‘(i) make available information on the 

5 use and availability of methods to reduce 

6 the consequences of a chemical facility ter7 rorist attack; and 

8 ‘‘(ii) periodically update the informa9 tion described in clause (i). 

10 ‘‘(B) INFORMATION TO BE INCLUDED.— 

11 The information made available under subpara12 graph (A) may include information relating 

13 to— 

14 ‘‘(i) general and specific types of the 

15 methods to reduce the consequences of a 

16 chemical facility terrorist attack; 

17 ‘‘(ii) combinations of chemical 

18 sources, substances of concern, and haz19 ardous processes or conditions for which 

20 the methods described in clause (i) could 

21 be appropriate; 

22 ‘‘(iii) the availability of specific meth23 ods to reduce the consequences of a ter24 rorist attack; 


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1 ‘‘(iv) the costs and cost savings result2 ing from the use of such methods; 

3 ‘‘(v) emerging technologies that could 

4 be transferred from research models or 

5 prototypes to practical applications; 

6 ‘‘(vi) the availability of technical as7 sistance and best practices; and 

8 ‘‘(vii) such other matters that the Sec9 retary determines are appropriate. 

10 ‘‘(2) SECTOR REPORTS ON METHODS TO RE11 DUCE CONSEQUENCES OF A TERRORIST ACT.— 

12 ‘‘(A) IN GENERAL.—The Secretary shall 

13 periodically make available industry sector re14 ports on methods to reduce the consequences of 

15 a terrorist attack that are in use at chemical fa16 cilities. 

17 ‘‘(B) CONTENTS OF REPORT.—The reports 

18 described in subparagraph (A) shall include, by 

19 industry sector or appropriate groupings of in20 dustry sectors, elements of feasible technologies, 

21 techniques, or other means described in sub22 section (b) that are— 

23 ‘‘(i) identified by covered chemical fa24 cilities under subsection (b) and submitted 

25 to the Secretary under section 2103; or 


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1 ‘‘(ii) identified by the Secretary from 

2 relevant information sources. 

3 ‘‘(C) PUBLIC AVAILABILITY.—Information 

4 made available under this paragraph— 

5 ‘‘(i) shall not identify any specific 

6 chemical facility; 

7 ‘‘(ii) shall be made available in ac8 cordance with section 2110; and 

9 ‘‘(iii) shall not disclose any propri10 etary information. 

11 ‘‘(g) FUNDING FOR METHODS TO REDUCE THE CON12 SEQUENCES OF A TERRORIST ATTACK.—The Secretary 

13 shall make grants to covered chemical facilities, with pri14 ority given to the highest risk covered chemical facilities, 

15 as determined by the Secretary, to supplement a portion 

16 of the costs of implementing methods to reduce the con17 sequences of a terrorist attack. 

18 ‘‘SEC. 2112. APPLICABILITY. 

19 ‘‘This title shall not apply to— 

20 ‘‘(1) any chemical facility that is owned and op21 erated by the Secretary of Defense; 

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

23 incidental storage, of any substance of concern regu24 lated as a hazardous material under chapter 51 of 

25 title 49, United States Code; 


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1 ‘‘(3) all or a specified portion of any chemical 

2 facility that— 

3 ‘‘(A) is subject to regulation by the Nu4 clear Regulatory Commission (referred to in 

5 this paragraph as the ‘Commission’) or a State 

6 that has entered into an agreement with the 

7 Commission under section 274 b. of the Atomic 

8 Energy Act of 1954 (42 U.S.C. 2021 b.); 

9 ‘‘(B) has had security controls imposed by 

10 the Commission or State, whichever has the 

11 regulatory authority, on the entire facility or 

12 the specified portion of the chemical facility; 

13 and 

14 ‘‘(C) has been designated by the Commis15 sion, after consultation with the State, if any, 

16 that regulates the facility, and the Secretary, as 

17 excluded from the application of this title; 

18 ‘‘(4) any public water system subject to the 

19 Safe Drinking Water Act (42 U.S.C. 300f et seq.); 

20 or 

21 ‘‘(5) any treatment works, as defined in section 

22 212 of the Federal Water Pollution Control Act (33 

23 U.S.C. 1292). 


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1 ‘‘SEC. 2113. SAVINGS CLAUSE. 

2 ‘‘(a) IN GENERAL.—Nothing in this title shall affect 

3 or modify in any way any obligation or liability of any 

4 person under any other Federal law, including— 

5 ‘‘(1) section 112 of the Clean Air Act (42 

6 U.S.C. 7412); 

7 ‘‘(2) the Federal Water Pollution Control Act 

8 (33 U.S.C. 1251 et seq.); 

9 ‘‘(3) the Resource Conservation and Recovery 

10 Act of 1976 (42 U.S.C. 6901 et seq.); 

11 ‘‘(4) the National Environmental Policy Act of 

12 1969 (42 U.S.C. 4321 et seq.); 

13 ‘‘(5) the Occupational Safety and Health Act 

14 (29 U.S.C. 651 et seq.); 

15 ‘‘(6) the National Labor Relations Act (29 

16 U.S.C. 151 et seq.); 

17 ‘‘(7) the Emergency Planning and Community 

18 Right to Know Act of 1986 (42 U.S.C. 11001 et 

19 seq.); 

20 ‘‘(8) the Safe Drinking Water Act (42 U.S.C. 

21 300f et seq.); 

22 ‘‘(9) the Maritime Transportation Security Act 

23 of 2002 (Public Law 107–295); 

24 ‘‘(10) the Comprehensive Environmental Re25 sponse, Compensation, and Liability Act of 1980 (42 

26 U.S.C. 9601 et seq.); 


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1 ‘‘(11) the Toxic Substances Control Act (15 

2 U.S.C. 2601 et seq.); 

3 ‘‘(12) the Pollution Prevention Act of 1990 (42 

4 U.S.C. 13101 et seq.); and 

5 ‘‘(13) the Fair Credit Reporting Act (15 U.S.C. 

6 1681 et seq.). 

7 ‘‘(b) STATE AND LOCAL GOVERNMENTS.—Nothing in 

8 this title shall preclude or deny the right of any State or 

9 unit of local government to adopt or enforce any regula10 tion, requirement, or standard of performance relating to 

11 environmental protection, health, or safety. 

12 ‘‘(c) ACCESS.—Nothing in this title shall abridge or 

13 deny access to a chemical facility site to any person where 

14 required or permitted under any other law or regulation. 

15 ‘‘SEC. 2114. OFFICE OF CHEMICAL FACILITY SECURITY. 

16 ‘‘(a) IN GENERAL.—There is established in the De17 partment an Office of Chemical Facility Security, headed 

18 by a Director, who shall— 

19 ‘‘(1) be a member of the Senior Executive Serv20 ice under section 5382 of title 5, United States 

21 Code; and 

22 ‘‘(2) be responsible for carrying out the respon23 sibilities of the Secretary under this title. 

24 ‘‘(b) PROFESSIONAL QUALIFICATIONS.—The indi25 vidual selected by the Secretary as the Director of the OfVerDate Mar 15 2010 22:33 Jul 16, 2010 Jkt 089200 PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 E:\BILLS\S3599.IS S3599

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1 fice of Chemical Facility Security shall have professional 

2 qualifications and experience necessary for effectively di3 recting the Office of Chemical Facility Security and car4 rying out this title, including— 

5 ‘‘(1) a demonstrated knowledge of— 

6 ‘‘(A) physical infrastructure protection; 

7 ‘‘(B) cybersecurity; 

8 ‘‘(C) chemical facility security; 

9 ‘‘(D) hazard analysis; 

10 ‘‘(E) chemical process engineering; 

11 ‘‘(F) chemical process safety reviews; or 

12 ‘‘(2) other such qualifications that the Sec13 retary determines to be necessary. 

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

15 ‘‘(1) make a reasonable effort to select an indi16 vidual to serve as the Director of the Office of 

17 Chemical Facility Security from among a group of 

18 candidates that is diverse with respect to race, eth19 nicity, age, gender, and disability characteristics; 

20 and 

21 ‘‘(2) submit information on the selection proc22 ess, including details on efforts to assure diversity 

23 among the candidates, to— 

24 ‘‘(A) the Committee on Homeland Security 

25 and Governmental Affairs of the Senate; and 


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1 ‘‘(B) the Committee on Homeland Security 

2 and the Committee on Energy and Commerce 

3 of the House of Representatives. 

4 ‘‘(d) OUTREACH SUPPORT.— 

5 ‘‘(1) POINT OF CONTACT.—The Secretary shall 

6 designate a point of contact for the Administrator of 

7 the Environmental Protection Agency, and the head 

8 of any other agency designated by the Secretary, 

9 with respect to the requirements under this title. 

10 ‘‘(2) OUTREACH.—The Secretary shall, as ap11 propriate, and in accordance with this title, inform 

12 State emergency response commissions appointed 

13 under section 301(a) of the Emergency Planning 

14 and Community Right-To-Know Act of 1986 (42 

15 U.S.C. 11001), local emergency planning committees 

16 appointed under section 301(c) of that Act, and any 

17 other entity designated by the Secretary of the find18 ings of the Office of Chemical Facility Security so 

19 that the commissions and committees may update 

20 emergency planning and training procedures. 

21 ‘‘SEC. 2115. SECURITY BACKGROUND CHECKS OF COVERED 

22 INDIVIDUALS AT CERTAIN CHEMICAL FACILI23 TIES. 

24 ‘‘(a) DEFINITION OF SECURITY BACKGROUND

25 CHECK.—In this section, the term ‘security background 


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1 check’ means a review, at no cost to an individual subject 

2 to the review, under subsection (b)(1) to identify individ3 uals who may pose a threat to chemical facility security, 

4 to national security, or of terrorism of— 

5 ‘‘(1) relevant databases to verify and validate 

6 identity; 

7 ‘‘(2) relevant criminal history databases; 

8 ‘‘(3) in the case of an alien (as defined in sec9 tion 101(a)(3) of the Immigration and Nationality 

10 Act (8 U.S.C. 1101(a)(3))), the relevant databases 

11 to determine the status of the alien under the immi12 gration laws of the United States; 

13 ‘‘(4) the consolidated terrorist watchlist; and 

14 ‘‘(5) any other relevant information or data15 bases, as determined by the Secretary. 

16 ‘‘(b) REGULATIONS ISSUED BY THE SECRETARY.— 

17 ‘‘(1) IN GENERAL.— 

18 ‘‘(A) REQUIREMENT.—The Secretary shall 

19 issue regulations to require covered chemical fa20 cilities to establish personnel surety for individ21 uals described in subparagraph (B) by con22 ducting appropriate security background checks 

23 and ensuring appropriate credentials for 

24 unescorted visitors and personnel of the covered 

25 chemical facility, including permanent and partVerDate Mar 15 2010 22:33 Jul 16, 2010 Jkt 089200 PO 00000 Frm 00077 Fmt 6652 Sfmt 6201 E:\BILLS\S3599.IS S3599

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1 time personnel, temporary personnel, and con2 tract personnel, 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 in10 dividuals with terrorist ties. 

11 ‘‘(B) INDIVIDUALS DESCRIBED.—For pur12 poses of subparagraph (A), an individual de13 scribed in this subparagraph is— 

14 ‘‘(i) a covered individual who— 

15 ‘‘(I) has unescorted access to re16 stricted areas or critical assets; or 

17 ‘‘(II) is provided with a copy of a 

18 security vulnerability assessment or 

19 site security plan; 

20 ‘‘(ii) an individual associated with a 

21 covered chemical facility, including any 

22 designated employee representative, who is 

23 provided with a copy of a security vulner24 ability assessment or site security plan; or 


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1 ‘‘(iii) an individual who is determined 

2 by the Secretary to require a security 

3 background check based on chemical facil4 ity security performance standards. 

5 ‘‘(2) REGULATIONS.—The regulations required 

6 under paragraph (1) shall set forth— 

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

8 checks, including— 

9 ‘‘(i) a list of offenses that are reason10 ably related to terrorism at a chemical fa11 cility and therefore disqualify, on an in12 terim or permanent basis, the individual 

13 from working at the covered chemical facil14 ity; 

15 ‘‘(ii) the time period after which an 

16 interim disqualifying offense is no longer a 

17 disqualification, including applying the 

18 time periods described in part 1572 of title 

19 49, Code of Federal Regulations, or any 

20 successor thereto, where applicable to the 

21 offenses identified in clause (i); and 

22 ‘‘(iii) the time period covered for each 

23 person subject to a security background 

24 check under paragraph (1); 


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

2 background checks; 

3 ‘‘(C) the necessary biographical informa4 tion and other data required in order to con5 duct the security background checks; 

6 ‘‘(D) a redress process for an adversely af7 fected individual consistent with subsections (c) 

8 and (d); 

9 ‘‘(E) a prohibition on an owner or operator 

10 of a covered chemical facility misrepresenting to 

11 an employee or other relevant individual, includ12 ing an arbiter involved in a labor arbitration, 

13 the scope, application, or meaning of any rules, 

14 regulations, directives, or guidance issued by 

15 the Secretary related to security background 

16 check requirements for covered individuals when 

17 conducting a security background check; and 

18 ‘‘(F) a requirement that any adverse em19 ployment decision based on a finding in sub20 paragraph (C), of a person subject to a security 

21 background check under subsection (a)(1), shall 

22 be based on accurate and up-to-date informa23 tion. 

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1 section (b)(1) shall provide that it shall be a misrepresen2 tation under subsection (b)(2)(E) to attribute an adverse 

3 employment decision, including removal or suspension of 

4 an employee, to the regulations unless the owner or oper5 ator of a covered chemical facility determines, after oppor6 tunity for appropriate redress under the processes pro7 vided under subsection (d)(1), that the individual subject 

8 to the adverse employment decision— 

9 ‘‘(1)(A) meets the requirements for interim or 

10 permanent disqualifying offenses reasonably related 

11 to terrorism at a covered chemical facility promul12 gated under subsection (b)(1); 

13 ‘‘(B) is on the consolidated terrorist watchlist; 

14 or 

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

16 background check, not to be legally authorized to 

17 work in the United States; and 

18 ‘‘(2) has been informed of the basis for the de19 cision and the full rights of the individual to the 

20 prompt appeals and reconsideration procedures 

21 under subsection (d) before an adverse employment 

22 action is taken. 

23 ‘‘(d) REDRESS PROCESSES.—The regulations issued 

24 by the Secretary under subsection (b) shall— 


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1 ‘‘(1) provide an adequate and prompt redress 

2 process for an individual subject to a security back3 ground check under subsection (b)(1) who is sub4 jected to an adverse employment decision, including 

5 removal or suspension of the individual, due to a de6 termination by the employer under subsection (c), 

7 that is consistent with the appeals process estab8 lished under section 70105(c) of title 46, United 

9 States Code, including all rights to— 

10 ‘‘(A) hearings before an administrative law 

11 judge; 

12 ‘‘(B) scope of review; and 

13 ‘‘(C) a review of an unclassified summary 

14 of classified evidence equivalent to the summary 

15 provided in part 1515 of title 49, Code of Fed16 eral Regulations; 

17 ‘‘(2) provide an adequate and prompt redress 

18 process for an individual subject to a security back19 ground check under subsection (b)(1) who is sub20 jected to an adverse employment decision, including 

21 removal or suspension of the individual, due to a vio22 lation of subsection (b)(2)(E), which shall not pre23 clude the exercise of any other rights available under 

24 collective bargaining agreements or applicable laws; 


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1 ‘‘(3) establish a reconsideration process de2 scribed in subsection (e) for an individual subject to 

3 an adverse employment decision that was attributed 

4 by an owner or operator to the regulations required 

5 under subsection (b)(1); 

6 ‘‘(4) include the authority to order an appro7 priate remedy, including reinstatement of the indi8 vidual subject to a security background check under 

9 subsection (b)(1), if the Secretary determines that 

10 the adverse employment decision was made— 

11 ‘‘(A) in violation of the regulations re12 quired under subsection (b)(1); 

13 ‘‘(B) as a result of an erroneous deter14 mination by the Secretary to place the indi15 vidual on the consolidated terrorist watchlist; or 

16 ‘‘(C) as a result of an erroneous deter17 mination by the owner or operator of a covered 

18 chemical facility under subsection (c); 

19 ‘‘(5) ensure that the redress processes required 

20 under paragraphs (1) and (2) afford to the indi21 vidual a full disclosure of any public-record event 

22 covered under subsection (c) that provides the basis 

23 for an adverse employment decision; and 

24 ‘‘(6) ensure that the individual subject to a se25 curity background check under subsection (b)(1) reVerDate Mar 15 2010 22:33 Jul 16, 2010 Jkt 089200 PO 00000 Frm 00083 Fmt 6652 Sfmt 6201 E:\BILLS\S3599.IS S3599

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1 ceives the full wages and benefits due to the indi2 vidual until all redress processes under this sub3 section are exhausted. 

4 ‘‘(e) RECONSIDERATION PROCESS.— 

5 ‘‘(1) IN GENERAL.—The reconsideration proc6 ess required under subsection (d)(3) shall— 

7 ‘‘(A) require the Secretary to determine, 

8 within 30 days after receiving a petition sub9 mitted by an individual subject to an adverse 

10 employment decision that was attributed by an 

11 owner or operator to the regulations required 

12 under subsection (b)(1), whether the individual 

13 poses a security risk to the covered chemical fa14 cility; and 

15 ‘‘(B) include procedures consistent with 

16 section 70105(c) of title 46, United States 

17 Code, including all rights to— 

18 ‘‘(i) hearings before an administrative 

19 law judge; 

20 ‘‘(ii) scope of review; and 

21 ‘‘(iii) a review of an unclassified sum22 mary of classified evidence equivalent to 

23 the summary provided in part 1515 of title 

24 49, Code of Federal Regulations. 


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

2 making a determination described under paragraph 

3 (1)(A), the Secretary shall— 

4 ‘‘(A) give consideration to the cir5 cumstance of any disqualifying act or offense, 

6 restitution made by the individual, Federal and 

7 State mitigation remedies, and other factors 

8 from which it may be concluded that the indi9 vidual does not pose a security risk to the cov10 ered chemical facility; and 

11 ‘‘(B) determine whether the individual 

12 poses a security risk to the covered chemical fa13 cility to the petitioner and to the owner or oper14 ator of the covered chemical facility. 

15 ‘‘(3) OWNER OR OPERATOR RECONSIDER16 ATION.—If the Secretary determines under para17 graph (1)(A) that the individual does not pose a se18 curity risk to the covered chemical facility, it shall 

19 be a prohibited misrepresentation for the owner or 

20 operator of the covered chemical facility to continue 

21 to attribute the adverse employment decision to the 

22 regulations under subsection (b)(1). 

23 ‘‘(f) RESTRICTIONS ON USE AND MAINTENANCE OF

24 INFORMATION.—Information obtained under this section 


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1 by the Secretary or the owner or operator of a covered 

2 chemical facility— 

3 ‘‘(1) may not be made available to the public; 

4 ‘‘(2) may not be accessed by an employee of the 

5 covered chemical facility, except for an employee who 

6 is directly involved with collecting the information or 

7 conducting or evaluating security background 

8 checks; 

9 ‘‘(3) shall be maintained confidentially by the 

10 covered chemical facility and the Secretary; 

11 ‘‘(4) shall be used only for making determina12 tions under this section; and 

13 ‘‘(5) may be shared by the Secretary with other 

14 Federal law enforcement agencies and law enforce15 ment agencies of State and local governments. 

16 ‘‘(g) SAVINGS CLAUSE.— 

17 ‘‘(1) RIGHTS AND RESPONSIBILITIES.—Nothing 

18 in this section shall be construed to abridge any 

19 right or responsibility of an individual subject to a 

20 security background check under subsection (b)(1) 

21 or an owner or operator of a covered chemical facil22 ity under any other Federal law, the law of a State 

23 or local government, or a collective bargaining agree24 ment. 


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1 ‘‘(2) EXISTING RIGHTS.—Nothing in this sec2 tion shall be construed as creating any new right or 

3 modifying any existing right of an individual to ap4 peal a determination by the Secretary as a result of 

5 a check against a terrorist watch list. 

6 ‘‘(h) PREEMPTION.—Nothing in this section shall be 

7 construed to preempt, alter, or affect a Federal law or the 

8 law of a State local or local government that requires 

9 criminal history background checks, checks on the author10 ization of an individual to work in the United States, or 

11 other background checks of individuals subject to security 

12 background checks under subsection (b)(1). 

13 ‘‘(i) DEPARTMENT-CONDUCTED SECURITY BACK14 GROUND CHECK.— 

15 ‘‘(1) IN GENERAL.—The regulations under sub16 section (b)(1) shall set forth a process by which the 

17 Secretary, on an ongoing basis, shall determine 

18 whether alternate security background checks con19 ducted by the Secretary are sufficient to meet the 

20 requirements under this section such that no addi21 tional security background check under this section 

22 is required for an individual for whom the qualifying 

23 alternate security background check was conducted. 

24 ‘‘(2) SUBMISSION OF INFORMATION FOR

25 VERIFICATION.—The Secretary may require the 


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1 owner or operator of a covered chemical facility to 

2 which an individual will have unescorted access to 

3 sensitive or restricted areas to submit identifying in4 formation about the individual and the alternate se5 curity background check conducted for the individual 

6 to the Secretary in order to enable the Secretary to 

7 verify the validity of the alternate security back8 ground check. 

9 ‘‘(3) DETERMINATION OF EXEMPTION FROM

10 SECURITY BACKGROUND CHECK.— 

11 ‘‘(A) IN GENERAL.—The Secretary shall 

12 determine whether a security background check 

13 under this section is required for an individual 

14 holding a transportation security card issued 

15 under section 70105 of title 46, United States 

16 Code. 

17 ‘‘(B) REGULATIONS.—If the Secretary de18 termines under subparagraph (A) that no back19 ground check is required for an individual hold20 ing a transportation security card issued under 

21 section 70105 of title 46, United States Code, 

22 the Secretary shall include the determination in 

23 the regulations required under subsection 

24 (b)(1). 


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1 ‘‘(j) TERMINATION OF EMPLOYMENT.—If, as the re2 sult of a security background check, an owner or operator 

3 of a covered chemical facility finds that a covered indi4 vidual is not legally authorized to work in the United 

5 States, the owner or operator shall cease to employ the 

6 covered individual, subject to the appropriate redress proc7 esses available to the individual under this section. 

8 ‘‘SEC. 2116. CITIZEN ENFORCEMENT. 

9 ‘‘(a) IN GENERAL.—Except as provided in subsection 

10 (c), a person may bring a civil action— 

11 ‘‘(1) against any governmental entity (including 

12 the United States and any other governmental in13 strumentality or agency, to the extent permitted by 

14 the eleventh amendment to the Constitution of the 

15 United States, and any federally owned-contractor 

16 operated facility) alleged to be in violation of any 

17 order that has become effective under this title; or 

18 ‘‘(2) against the Secretary, for an alleged fail19 ure to perform any act or duty under this title that 

20 is not discretionary for the Secretary. 

21 ‘‘(b) COURT OF JURISDICTION.— 

22 ‘‘(1) IN GENERAL.—Any action under sub23 section (a)(1) shall be brought in the district court 

24 of the United States for the district in which the al25 leged violation occurred. 


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1 ‘‘(2) ACTION AGAINST THE SECRETARY.—Any 

2 action brought under subsection (a)(2) may be 

3 brought in the district court of the United States for 

4 the district in which the alleged violation occurred or 

5 in the United States District Court for the District 

6 of Columbia. 

7 ‘‘(3) RELIEF.—A district court of the United 

8 States may, without regard to the amount in con9 troversy or the citizenship of the parties— 

10 ‘‘(A) enforce an order described in sub11 section (a)(1); 

12 ‘‘(B) order a governmental entity to take 

13 such action as may be necessary to enforce an 

14 order described in subsection (a)(1); and 

15 ‘‘(C) in a civil action brought under sub16 section (a)(2), order the Secretary to perform a 

17 non-discretionary act or duty under this title, 

18 and impose civil penalties, as appropriate, 

19 under section 2107. 

20 ‘‘(c) ACTIONS PROHIBITED.—A civil action may not 

21 be filed under subsection (a) before 60 days after the date 

22 on which the person commencing the action has given no23 tice of the alleged violation to— 

24 ‘‘(1) the Secretary; and 


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1 ‘‘(2) in the case of an action under subsection 

2 (a)(1), any governmental entity alleged to be in vio3 lation of an order. 

4 ‘‘(d) NOTICE.—Notice under this section shall be 

5 given in such manner as the Secretary shall prescribe by 

6 regulation. 

7 ‘‘(e) INTERVENTION.—In any action under this sec8 tion, the Secretary, if not a party, may intervene as a mat9 ter of right. 

10 ‘‘(f) COSTS.—If determined appropriate by the court, 

11 the court may award the costs of litigation (including rea12 sonable attorney and expert witness fees) to the prevailing 

13 or substantially prevailing party in a civil action under 

14 subsection (a). 

15 ‘‘(g) BOND.—The court may, if a temporary restrain16 ing order or preliminary injunction is sought, require the 

17 filing of a bond or equivalent security in accordance with 

18 the Federal Rules of Civil Procedure. 

19 ‘‘(h) OTHER RIGHTS PRESERVED.—Nothing in this 

20 section shall restrict any right which any person (or class 

21 of persons) may have under any statute or common law. 

22 ‘‘SEC. 2117. CITIZEN PETITIONS. 

23 ‘‘(a) REGULATIONS.—The Secretary shall issue regu24 lations to establish a citizen petition process for petitions 

25 described in subsection (b), which shall establish— 


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1 ‘‘(1) the format for the petitions; 

2 ‘‘(2) the procedure for investigation of the peti3 tions; 

4 ‘‘(3) the procedure for response to the petitions, 

5 including timelines; 

6 ‘‘(4) the procedure for referral to and review by 

7 the Office of the Inspector General of the Depart8 ment without deference to a determination made by 

9 the Secretary with respect to the petition; and 

10 ‘‘(5) the procedure for rejection or acceptance 

11 by the Secretary of the recommendation of the Of12 fice of the Inspector General. 

13 ‘‘(b) PETITIONS.—The regulations promulgated 

14 under subsection (a) shall allow any person to file a peti15 tion with the Secretary— 

16 ‘‘(1) identifying any person (including the 

17 United States and any other governmental instru18 mentality or agency, to the extent permitted by the 

19 eleventh amendment to the Constitution of the 

20 United States) alleged to be in violation of any 

21 standard, regulation, condition, requirement, prohi22 bition, plan, or order that has become effective 

23 under this title; and 

24 ‘‘(2) describing the alleged violation of any 

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1 bition, plan, or order that has become effective 

2 under this title by the person described in paragraph 

3 (1). 

4 ‘‘(c) REQUIREMENTS.—After the Secretary issues 

5 regulations under subsection (a), the Secretary shall— 

6 ‘‘(1) accept all petitions described under sub7 section (b) that meet the requirements of the regula8 tions issued under subsection (a); 

9 ‘‘(2) investigate all allegations contained in ac10 cepted petitions; 

11 ‘‘(3) determine whether enforcement action will 

12 be taken concerning the alleged violation or viola13 tions; 

14 ‘‘(4) respond to all accepted petitions promptly 

15 and in writing; 

16 ‘‘(5) include in all responses to petitions a brief 

17 and concise statement, to the extent permitted under 

18 section 2110, of the allegations, the steps taken to 

19 investigate, the determination made, and the reasons 

20 for such determination; 

21 ‘‘(6) maintain an internal record including all 

22 protected information relating to the determination; 

23 ‘‘(7) with respect to any petition for which the 

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1 tioner, provide the petitioner with the opportunity to 

2 request— 

3 ‘‘(A) a review of the full record by the In4 spector General of the Department, including a 

5 review of protected information; and 

6 ‘‘(B) the formulation of recommendations 

7 by the Inspector General and submittal of such 

8 recommendations to the Secretary and, to the 

9 extent permitted under section 2110, to the pe10 titioner; and 

11 ‘‘(8) respond to a recommendation submitted by 

12 the Inspector General under paragraph (7) by adopt13 ing or rejecting the recommendation. 

14 ‘‘SEC. 2118. NOTIFICATION SYSTEM TO ADDRESS PUBLIC 

15 CONCERNS. 

16 ‘‘(a) ESTABLISHMENT.—The Secretary shall estab17 lish a notification system, which shall provide an indi18 vidual the ability to report, via telephonic and Internet19 based means, a suspected security deficiency or suspected 

20 noncompliance with this title. 

21 ‘‘(b) ACKNOWLEDGMENT.—When the Secretary re22 ceives a report through the notification system established 

23 under subsection (a), the Secretary shall respond to the 

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1 retary respond to such a report later than 30 days after 

2 receipt of the report. 

3 ‘‘(c) STEPS TO ADDRESS PROBLEMS.—The Sec4 retary shall— 

5 ‘‘(1) review each report received through the 

6 notification system established under subsection (a); 

7 and 

8 ‘‘(2) as necessary, take appropriate enforcement 

9 action under section 2107. 

10 ‘‘(d) FEEDBACK REQUIRED.—Upon request, the Sec11 retary shall provide to the individual who reported the sus12 pected security deficiency or noncompliance through the 

13 notification system established under subsection (a) a 

14 written response that includes the findings of the Sec15 retary with respect to the report submitted by the indi16 vidual and what, if any, compliance action was taken in 

17 response to the report. 

18 ‘‘(e) INSPECTOR GENERAL REPORT REQUIRED.— 

19 ‘‘(1) IN GENERAL.—The Inspector General of 

20 the Department shall submit to the Committee on 

21 Homeland Security and Governmental Affairs and 

22 the Committee on Environment and Public Works of 

23 the Senate and the Committee on Homeland Secu24 rity and the Committee on Energy and Commerce of 

25 the House of Representatives an annual report on 


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1 the reports received under the notification system es2 tablished under subsection (a) and the disposition of 

3 the reports by the Secretary. 

4 ‘‘(2) CONFIDENTIAL INFORMATION.—The re5 port required under paragraph (1) shall be made 

6 publically available, except for protected information 

7 as determined by the Inspector General, which shall 

8 be submitted to Congress in an appendix to the re9 port. 

10 ‘‘SEC. 2119. EMERGENCY RESPONSE CAPACITY STUDY. 

11 ‘‘(a) ASSESSMENT AND REPORT.— 

12 ‘‘(1) IN GENERAL.—The Secretary shall assess 

13 and submit a report to Congress on the emergency 

14 response resources that would be required in order 

15 to feasibly respond to a worst-case chemical facility 

16 terrorist incident, including worst-case release of a 

17 substance of concern. 

18 ‘‘(2) CONTENTS.—The report required under 

19 paragraph (1) shall describe— 

20 ‘‘(A) the availability of fire, police, medical, 

21 and other response personnel; 

22 ‘‘(B) the sufficiency of emergency response 

23 facilities, equipment, and supplies; 

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1 ‘‘(D) the carrying capacity of impeded and 

2 unimpeded evacuation routes; 

3 ‘‘(E) the protective capacity of structures; 

4 ‘‘(F) the availability of health and environ5 mental hazard detection, identification, moni6 toring, cleanup, and decontamination; 

7 ‘‘(G) the surge capacities of hospitals and 

8 other health care facilities; 

9 ‘‘(H) the feasibility of warning persons 

10 within vulnerable areas prior to impact and the 

11 capacity of community notification and warning 

12 systems; 

13 ‘‘(I) the protection of vulnerable popu14 lations and immobilized populations (including 

15 in schools, day care centers, nursing homes, 

16 hospitals, sports arenas, shopping malls, homes, 

17 and businesses); 

18 ‘‘(J) any additional relevant planning pro19 visions identified in section 303(c) of the Emer20 gency Planning and Community Right to Know 

21 Act (42 U.S.C. 11003(c)); 

22 ‘‘(K) the necessary funding, organization 

23 (including interagency coordination), personnel, 

24 training, equipment, exercises, transportation, 

25 community notification, medical, infrastructure, 


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1 and other elements to appropriately address any 

2 deficiencies in response capacities; and 

3 ‘‘(L) any additional factors affecting the 

4 feasibility of appropriately responding to a 

5 worst-case chemical facility terrorist incident, 

6 including worst-case release of a substance of 

7 concern. 

8 ‘‘(3) PUBLIC AVAILABILITY.—The report re9 quired under this section shall be made publicly 

10 available, and shall not include protected informa11 tion. 

12 ‘‘(4) CONFIDENTIAL INFORMATION.—The Sec13 retary shall submit any protected information relat14 ing to the report required under paragraph (1) to 

15 Congress in an appendix to the report. 

16 ‘‘SEC. 2120. ANNUAL REPORT TO CONGRESS. 

17 ‘‘(a) ANNUAL REPORT.—Not later than 1 year after 

18 the date of enactment of this title, and annually thereafter 

19 for 10 years, the Secretary shall submit a report on 

20 progress in achieving compliance with this title to— 

21 ‘‘(1) the Committee on Homeland Security and 

22 Governmental Affairs and the Committee on Envi23 ronment and Public Works of the Senate; and 


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1 ‘‘(2) the Committee on Homeland Security and 

2 the Committee on Energy and Commerce of the 

3 House of Representatives. 

4 ‘‘(b) REQUIREMENT.—Each report required under 

5 subsection (a) shall include— 

6 ‘‘(1) a qualitative discussion of how covered 

7 chemical facilities, differentiated by tier, have re8 duced the risks of chemical facility terrorist inci9 dents at the covered chemical facilities, including— 

10 ‘‘(A) a generalized summary of measures 

11 implemented by covered chemical facilities in 

12 order to meet each risk-based chemical facility 

13 performance standard established under this 

14 title, and the measures that the covered chem15 ical facilities already had in place— 

16 ‘‘(i) in the case of the first report 

17 under this section, before the issuance of 

18 the final rule implementing the regulations 

19 known as the ‘Chemical Facility Anti-Ter20 rorism Standards’, issued on April 9, 

21 2007; and 

22 ‘‘(ii) in the case of each subsequent 

23 report, since the submittal of the most re24 cent report submitted under this section; 

25 and 


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1 ‘‘(B) any other generalized summary the 

2 Secretary determines appropriate to describe 

3 the measures covered chemical facilities are im4 plementing to comply with this title; and 

5 ‘‘(2) a quantitative summary of how the covered 

6 chemical facilities, differentiated by tier, are com7 plying with this title during the period covered by 

8 the report and how the Secretary is implementing 

9 and enforcing this title during the period covered by 

10 the report, including— 

11 ‘‘(A) the number of chemical facilities that 

12 provided the Secretary with information about 

13 possessing substances of concern, as described 

14 in section 2102(b)(2); 

15 ‘‘(B) the number of covered chemical facili16 ties assigned to each tier; 

17 ‘‘(C) the number of security vulnerability 

18 assessments and site security plans submitted 

19 by covered chemical facilities; 

20 ‘‘(D) the number of security vulnerability 

21 assessments and site security plans approved 

22 and disapproved by the Secretary; 

23 ‘‘(E) the number of covered chemical facili24 ties without an approved security vulnerability 

25 assessment or site security plan; 


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1 ‘‘(F) the number of chemical facilities that 

2 have been assigned to a different tier or are no 

3 longer designated as a covered chemical facility 

4 by the Secretary due to implementation of a 

5 method to reduce the consequences of a ter6 rorist attack and a description of the method; 

7 ‘‘(G) the number of orders for compliance 

8 issued by the Secretary; 

9 ‘‘(H) the administrative penalties assessed 

10 by the Secretary for noncompliance with this 

11 title; 

12 ‘‘(I) the civil penalties assessed by the 

13 court for noncompliance with this title; 

14 ‘‘(J) the number of terrorist watchlist 

15 checks conducted by the Secretary in order to 

16 comply with this title; 

17 ‘‘(K) the number of appeals conducted by 

18 the Secretary and the number of petitions for 

19 reconsideration considered by the Secretary 

20 under the processes established under sub21 sections (d) and (e) of section 2115, including 

22 those appeals and reconsiderations addressing 

23 the processes described under section 2115(c); 


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1 ‘‘(L) aggregate information regarding the 

2 time taken for the appeals described in sub3 paragraph (K); 

4 ‘‘(M) aggregate information regarding the 

5 manner in which the appeals described in sub6 paragraph (K) were resolved; 

7 ‘‘(N) based on information provided to the 

8 Secretary annually by each owner or operator of 

9 a covered chemical facility, the number of indi10 viduals subjected to adverse employment deci11 sions that were attributed by the owner or oper12 ator to the regulations required under section 

13 2115(b)(1); and 

14 ‘‘(O) any other data the Secretary deter15 mines appropriate to describe compliance with 

16 this title by chemical facilities and the imple17 mentation of this title by the Secretary. 

18 ‘‘(c) PUBLIC AVAILABILITY.—A report submitted 

19 under this section shall be made publicly available. 

20 ‘‘SEC. 2121. AUTHORIZATION OF APPROPRIATIONS. 

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

23 ‘‘(1) $300,000,000 for each of fiscal years 2011 

24 and 2012, of which $150,000,000 shall be made 

25 available for grants under section 2111(g) for methVerDate Mar 15 2010 22:33 Jul 16, 2010 Jkt 089200 PO 00000 Frm 00102 Fmt 6652 Sfmt 6201 E:\BILLS\S3599.IS S3599

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1 ods to reduce the consequences of a terrorist attack, 

2 of which up to $3,000,000 shall be made available 

3 for grants authorized under section 2111(d)(2); and 

4 ‘‘(2) $275,000,000 for each of fiscal years 

5 2013, 2014, and 2015, of which $150,000,000 shall 

6 be made available for grants under section 2111(g) 

7 for methods to reduce the consequences of a ter8 rorist attack, of which up to $3,000,000 shall be 

9 made available for grants authorized under section 

10 2111(d)(2).’’. 

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

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

13 end the following: 

‘‘TITLE XXI—REGULATION OF SECURITY PRACTICES AT 

CHEMICAL FACILITIES 

‘‘Sec. 2101. Definitions. 

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

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

‘‘Sec. 2104. Site inspections. 

‘‘Sec. 2105. Records. 

‘‘Sec. 2106. Timely sharing of threat information. 

‘‘Sec. 2107. Enforcement. 

‘‘Sec. 2108. Whistleblower protections. 

‘‘Sec. 2109. Federal preemption. 

‘‘Sec. 2110. Protection of information. 

‘‘Sec. 2111. Methods to reduce the consequences of a terrorist attack. 

‘‘Sec. 2112. Applicability. 

‘‘Sec. 2113. Savings clause. 

‘‘Sec. 2114. Office of Chemical Facility Security. 

‘‘Sec. 2115. Security background checks of covered individuals at certain chemical facilities. 

‘‘Sec. 2116. Citizen enforcement. 

‘‘Sec. 2117. Citizen petitions. 

‘‘Sec. 2118. Notification system to address public concerns. 

‘‘Sec. 2119. Emergency response capacity study. 

‘‘Sec. 2120. Annual report to Congress. 

‘‘Sec. 2121. Authorization of appropriations.’’. 

14 (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 the date of the 

6 enactment of this Act. 

7 (d) REGULATIONS.— 

8 (1) DEADLINES.— 

9 (A) PROPOSED RULES.—Not later that 6 

10 months after the date of enactment of this Act, 

11 the Secretary of Homeland Security shall issue 

12 proposed rules to carry out title XXI of the 

13 Homeland Security Act of 2002, as added by 

14 subsection (a). 

15 (B) FINAL RULES.—Not later than 18 

16 months after the date of enactment of this Act, 

17 the Secretary of Homeland Security shall issue 

18 final rules to carry out title XXI of the Home19 land Security Act of 2002, as added by sub20 section (a). 

21 (2) CONSULTATION.—In developing and imple22 menting the rules issued under paragraph (1), the 

23 Secretary of Homeland Security shall consult with 

24 the Administrator of the Environmental Protection 


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1 Agency, and other persons, as appropriate, regard2 ing— 

3 (A) the designation of substances of con4 cern; 

5 (B) methods to reduce the consequences of 

6 a terrorist attack; 

7 (C) security at drinking water facilities 

8 and wastewater treatment works; 

9 (D) the treatment of protected informa10 tion; and 

11 (E) any other matters the Secretary deter12 mines necessary. 

13 (3) SENSE OF CONGRESS REGARDING CFATS.— 

14 It is the sense of Congress that— 

15 (A) the Secretary of Homeland Security 

16 was granted statutory authority under section 

17 550 of the Department of Homeland Security 

18 Appropriations Act (Public Law 109–295) to 

19 regulate security practices at chemical facilities 

20 until October 1, 2009; and 

21 (B) under section 550 of the Department 

22 of Homeland Security Appropriations Act (Pub23 lic Law 109–295), the Secretary prescribed reg24 ulations known as the Chemical Facility AntiVerDate Mar 15 2010 22:33 Jul 16, 2010 Jkt 089200 PO 00000 Frm 00105 Fmt 6652 Sfmt 6201 E:\BILLS\S3599.IS S3599

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1 Terrorism Standards (referred to in this section 

2 as ‘‘CFATS regulations’’). 

3 (4) INTERIM USE AND AMENDMENT OF

4 CFATS.—Until the final rules issued under para5 graph (1) take effect, in carrying out title XXI of 

6 the Homeland Security Act of 2002, as added by 

7 subsection (a), the Secretary may, to the extent the 

8 Secretary determines appropriate— 

9 (A) continue to carry out the CFATS reg10 ulations, as in effect on the day before the date 

11 of the enactment of this Act; 

12 (B) amend the CFATS regulations as may 

13 be necessary to ensure that the CFATS regula14 tions are consistent with this Act and the 

15 amendments made by this Act; and 

16 (C) continue using any tools developed for 

17 purposes of the CFATS regulations, including 

18 the list of substances of concern, usually re19 ferred to as ‘‘Appendix A’’, and the chemical se20 curity assessment tool (which includes facility 

21 registration, a top-screen questionnaire, a secu22 rity vulnerability assessment tool, a site security 

23 plan template, and a chemical vulnerability in24 formation repository). 


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1 (5) UPDATE OF FACILITY PLANS ASSESSMENTS

2 AND PLANS PREPARED UNDER CFATS.—The owner 

3 or operator of a covered chemical facility that, before 

4 the effective date of the final regulations issued 

5 under paragraph (1), submits a security vulner6 ability assessment or site security plan under the 

7 CFATS regulations, shall be required to update or 

8 amend the security vulnerability assessment and site 

9 security plan of the facility to reflect any additional 

10 requirements under this Act or the amendments 

11 made by this Act, according to a timeline established 

12 by the Secretary. 

13 (e) REVIEW OF DESIGNATION OF SODIUM

14 FLUOROACETATE AS A SUBSTANCE OF CONCERN.—The 

15 Secretary of Homeland Security shall review the designa16 tion of sodium fluoroacetate as a substance of concern 

17 under section 2102(d) of the Homeland Security Act of 

18 2002, as added by subsection (a), by the earlier of— 

19 (1) the date of the first periodic review con20 ducted under section 2102(d) of the Homeland Se21 curity Act of 2002; and 

22 (2) the date that is 1 year after the date of en23 actment of this Act. 

Æ 


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