IB 

Union Calendar No. 178 

111TH CONGRESS 

1ST SESSION H. R. 2868 

[Report No. 111–205, Parts I and II] 

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

the authority of the Secretary of Homeland Security to enhance security 

and protect against acts of terrorism against chemical facilities, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 15, 2009 

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

of Texas, Mr. MARKEY of Massachusetts, Ms. CLARKE, and Mr. 

PASCRELL) introduced the following bill; which was referred to the Committee on Homeland Security, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

JULY 13, 2009 

Reported from the Committee on Homeland Security with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

JULY 13, 2009 

Referral to the Committee on Energy and Commerce extended for a period 

ending not later than July 31, 2009 

JULY 13, 2009 

Referred to the Committee on the Judiciary for a period ending not later than 

July 31, 2009, for consideration of such provisions of the bill and the 

amendment as fall within the jurisdiction of that committee pursuant to 

clause 1(k), rule X 

JULY 31, 2009 

Referral to the Committees on Energy and Commerce and the Judiciary 

extended for a period ending not later than September 30, 2009 


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SEPTEMBER 30, 2009 

Referral to the Committees on Energy and Commerce and the Judiciary 

extended for a period ending not later than October 23, 2009 

OCTOBER 23, 2009 

Additional sponsors: Ms. NORTON, Mr. HINCHEY, and Mrs. MALONEY

OCTOBER 23, 2009 

Reported from the Committee on Energy and Commerce with an amendment 

[Strike out all after the enacting clause and insert the part printed in boldface roman] 

OCTOBER 23, 2009 

Committee on the Judiciary discharged; committed to the Committee of the 

Whole House on the State of the Union and ordered to be printed 

[For text of introduced bill, see copy of bill as introduced on June 15, 2009] 

A BILL 

To amend the Homeland Security Act of 2002 to extend, 

modify, and recodify the authority of the Secretary of 

Homeland Security to enhance security and protect 

against acts of terrorism against chemical facilities, and 

for other purposes. 


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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 ‘‘Chemical Facility Anti5 Terrorism Act of 2009’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (a) FINDINGS.—Congress makes the following findings: 

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

9 target that terrorists could exploit to cause con10 sequences, including death, injury, or serious adverse 

11 effects to human health, the environment, critical in12 frastructure, public health, homeland security, na13 tional security, and the national economy. 

14 (2) Chemical facilities that pose such potential 

15 consequences and that are vulnerable to terrorist at16 tacks must be protected. 

17 (3) The Secretary of Homeland Security has 

18 statutory authority pursuant to section 550 of the De19 partment of Homeland Security Appropriations Act, 

20 2007 (Public Law 109–295) to regulate the security 

21 practices at chemical facilities that are at significant 

22 risk of being terrorist targets. 

23 (4) The Secretary of Homeland Security issued 

24 interim final regulations called the Chemical Facility 


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1 Anti-Terrorism Standards, which became effective on 

2 June 8, 2007. 

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

4 and make permanent the authority of the Secretary of 

5 Homeland Security to regulate security practices at chem6 ical facilities. 

7 SEC. 3. EXTENSION, MODIFICATION, AND RECODIFICATION 

8 OF AUTHORITY OF SECRETARY OF HOME9 LAND SECURITY TO REGULATE SECURITY 

10 PRACTICES AT CHEMICAL FACILITIES. 

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

12 2002 (6 U.S.C. 101 et seq.) is amended by adding at the 

13 end the following new title: 

14 ‘‘TITLE XXI—REGULATION OF SE15 CURITY PRACTICES AT CHEM16 ICAL FACILITIES 

17 ‘‘SEC. 2101. DEFINITIONS. 

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

19 ‘‘(1) The term ‘chemical facility’ means any fa20 cility— 

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

22 facility possesses or plans to possess at any rel23 evant point in time a substance of concern; or 

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

25 identified by the Secretary. 


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1 ‘‘(2) The term ‘chemical facility security per2 formance standards’ means risk-based standards es3 tablished by the Secretary to ensure or enhance the se4 curity of a chemical facility against a chemical facil5 ity terrorist incident that are designed to address the 

6 following: 

7 ‘‘(A) Restricting the area perimeter. 

8 ‘‘(B) Securing site assets. 

9 ‘‘(C) Screening and controlling access to the 

10 facility and to restricted areas within the facility 

11 by screening or inspecting individuals and vehi12 cles as they enter, including— 

13 ‘‘(i) measures to deter the unauthorized 

14 introduction of dangerous substances and 

15 devices that may facilitate a chemical facil16 ity terrorist incident or actions having seri17 ous negative consequences for the population 

18 surrounding the chemical facility; and 

19 ‘‘(ii) measures implementing a regu20 larly updated identification system that 

21 checks the identification of chemical facility 

22 personnel and other persons seeking access 

23 to the chemical facility and that discourages 

24 abuse through established disciplinary 

25 measures. 


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1 ‘‘(D) Methods to deter, detect, and delay a 

2 chemical facility terrorist incident, creating suf3 ficient time between detection of a chemical facil4 ity terrorist incident and the point at which the 

5 chemical facility terrorist incident becomes suc6 cessful, including measures to— 

7 ‘‘(i) deter vehicles from penetrating the 

8 chemical facility perimeter, gaining unau9 thorized access to restricted areas, or other10 wise presenting a hazard to potentially crit11 ical targets; 

12 ‘‘(ii) deter chemical facility terrorist 

13 incidents through visible, professional, well14 maintained security measures and systems, 

15 including security personnel, detection sys16 tems, barriers and barricades, and hardened 

17 or reduced value targets; 

18 ‘‘(iii) detect chemical facility terrorist 

19 incidents at early stages through counter 

20 surveillance, frustration of opportunity to 

21 observe potential targets, surveillance and 

22 sensing systems, and barriers and barri23 cades; and 

24 ‘‘(iv) delay a chemical facility terrorist 

25 incident for a sufficient period of time so as 


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1 to allow appropriate response through on2 site security response, barriers and barri3 cades, hardened targets, and well-coordi4 nated response planning. 

5 ‘‘(E) Securing and monitoring the shipping, 

6 receipt, and storage of a substance of concern for 

7 the chemical facility. 

8 ‘‘(F) Deterring theft or diversion of a sub9 stance of concern. 

10 ‘‘(G) Deterring insider sabotage. 

11 ‘‘(H) Deterring cyber sabotage, including by 

12 preventing unauthorized onsite or remote access 

13 to critical process controls, including supervisory 

14 control and data acquisition systems, distributed 

15 control systems, process control systems, indus16 trial control systems, critical business systems, 

17 and other sensitive computerized systems. 

18 ‘‘(I) Developing and exercising an internal 

19 emergency plan for owners, operators, and cov20 ered individuals of a covered chemical facility 

21 for responding to chemical facility terrorist inci22 dents at the facility. Any such plan shall include 

23 the provision of appropriate information to any 

24 local emergency planning committee, local law 

25 enforcement officials, and emergency response 


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1 providers to ensure an effective, collective re2 sponse to terrorist incidents. 

3 ‘‘(J) Maintaining effective monitoring, com4 munications, and warning systems, including— 

5 ‘‘(i) measures designed to ensure that 

6 security systems and equipment are in good 

7 working order and inspected, tested, cali8 brated, and otherwise maintained; 

9 ‘‘(ii) measures designed to regularly 

10 test security systems, note deficiencies, cor11 rect for detected deficiencies, and record re12 sults so that they are available for inspec13 tion by the Department; and 

14 ‘‘(iii) measures to allow the chemical 

15 facility to promptly identify and respond to 

16 security system and equipment failures or 

17 malfunctions. 

18 ‘‘(K) Ensuring mandatory annual security 

19 training, exercises, and drills of chemical facility 

20 personnel appropriate to their roles, responsibil21 ities, and access to chemicals, including partici22 pation by local law enforcement, local emergency 

23 response providers, appropriate supervisory and 

24 non-supervisory facility employees and their em25 ployee representatives, if any. 


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1 ‘‘(L) Performing personnel surety for indi2 viduals with access to restricted areas or critical 

3 assets by conducting appropriate background 

4 checks and ensuring appropriate credentials for 

5 unescorted visitors and chemical facility per6 sonnel, including permanent and part-time per7 sonnel, temporary personnel, and contract per8 sonnel, including— 

9 ‘‘(i) measures designed to verify and 

10 validate identity; 

11 ‘‘(ii) measures designed to check crimi12 nal history; 

13 ‘‘(iii) measures designed to verify and 

14 validate legal authorization to work; and 

15 ‘‘(iv) measures designed to identify 

16 people with terrorist ties. 

17 ‘‘(M) Escalating the level of protective meas18 ures for periods of elevated threat. 

19 ‘‘(N) Specific threats, vulnerabilities, or 

20 risks identified by the Secretary for that chem21 ical facility. 

22 ‘‘(O) Reporting of significant security inci23 dents to the Department and to appropriate local 

24 law enforcement officials. 


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1 ‘‘(P) Identifying, investigating, reporting, 

2 and maintaining records of significant security 

3 incidents and suspicious activities in or near the 

4 site. 

5 ‘‘(Q) Establishing one or more officials and 

6 an organization responsible for— 

7 ‘‘(i) security; 

8 ‘‘(ii) compliance with the standards 

9 under this paragraph; 

10 ‘‘(iii) serving as the point of contact 

11 for incident management purposes with 

12 Federal, State, local, and tribal agencies, 

13 law enforcement, and emergency response 

14 providers; and 

15 ‘‘(iv) coordination with Federal, State, 

16 local, and tribal agencies, law enforcement, 

17 and emergency response providers regarding 

18 plans and security measures for the collec19 tive response to a chemical facility terrorist 

20 incident. 

21 ‘‘(R) Maintaining appropriate records re22 lating to the security of the facility, including a 

23 copy of the most recent security vulnerability as24 sessment and site security plan at the chemical 

25 facility. 


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1 ‘‘(S) Assessing and, as appropriate, uti2 lizing methods to reduce the consequences of a 

3 terrorist attack. 

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

6 chemical facility terrorist incident. 

7 ‘‘(U) Any additional security performance 

8 standards the Secretary may specify. 

9 ‘‘(3) The term ‘chemical facility terrorist inci10 dent’ means any act or attempted act of terrorism or 

11 terrorist activity committed at, near, or against a 

12 chemical facility, including— 

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

14 from a chemical facility; 

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

16 of a substance of concern from a chemical facil17 ity; or 

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

19 a substance of concern at a chemical facility. 

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

21 the representative of the certified or recognized bar22 gaining agent engaged in a collective bargaining rela23 tionship with a private or public owner or operator 

24 of a chemical facility. 


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1 ‘‘(5) The term ‘covered individual’ means a per2 manent, temporary, full-time, or part-time employee 

3 of a covered chemical facility or an employee of an 

4 entity with which the covered chemical facility has 

5 entered into a contract who is performing responsibil6 ities at the facility pursuant to the contract. 

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

8 a chemical facility that meets the criteria of section 

9 2102(b)(1). 

10 ‘‘(7) The term ‘environment’ means— 

11 ‘‘(A) the navigable waters, the waters of the 

12 contiguous zone, and the ocean waters of which 

13 the natural resources are under the exclusive 

14 management authority of the United States 

15 under the Magnuson-Stevens Fishery Conserva16 tion and Management Act (16 U.S.C. 1801 et 

17 seq.); and 

18 ‘‘(B) any other surface water, ground water, 

19 drinking water supply, land surface or sub20 surface strata, or ambient air within the United 

21 States or under the jurisdiction of the United 

22 States. 

23 ‘‘(8) The term ‘owner or operator’ with respect to 

24 a facility means any of the following: 

25 ‘‘(A) The person who owns the facility. 


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1 ‘‘(B) The person who has responsibility for 

2 daily operation of the facility. 

3 ‘‘(C) The person who leases the facility. 

4 ‘‘(9) The term ‘person’ means an individual, 

5 trust, firm, joint stock company, corporation (includ6 ing a government corporation), partnership, associa7 tion, State, municipality, commission, political sub8 division of a State, or any interstate body and shall 

9 include each department, agency, and instrumentality 

10 of the United States. 

11 ‘‘(10) The term ‘release’ means any spilling, 

12 leaking, pumping, pouring, emitting, emptying, dis13 charging, injecting, escaping, leaching, dumping, or 

14 disposing into the environment (including the aban15 donment or discarding of barrels, containers, and 

16 other closed receptacles containing any hazardous sub17 stance or pollutant or contaminant), but excludes (A) 

18 any release which results in exposure to persons solely 

19 within a workplace, with respect to a claim which 

20 such persons may assert against the employer of such 

21 persons, (B) emissions from the engine exhaust of a 

22 motor vehicle, rolling stock, aircraft, vessel, or pipe23 line pumping station engine, (C) release of source, by24 product, or special nuclear material from a nuclear 

25 incident, as those terms are defined in the Atomic 


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1 Energy Act of 1954 (42 U.S.C. 2011 et seq.), if such 

2 release is subject to requirements with respect to fi3 nancial protection established by the Nuclear Regu4 latory Commission under section 170 of such Act (42 

5 U.S.C. 2210), or, for the purposes of section 104 of the 

6 Comprehensive Environmental Response Compensa7 tion and Liability Act of 1980 (42 U.S.C. 9604) or 

8 any other response action, any release of source by9 product, or special nuclear material from any proc10 essing site designated under section 102(a)(1) or 

11 302(a) of the Uranium Mill Tailings Radiation Con12 trol Act of 1978 (42 U.S.C. 7912(a)(1); and (D) the 

13 normal application of fertilizer. 

14 ‘‘(11) The term ‘substance of concern’ means a 

15 chemical substance in quantity and form that is so 

16 designated by the Secretary under section 2102(a). 

17 ‘‘(12) The term ‘method to reduce the con18 sequences of a terrorist attack’ means a measure used 

19 at a chemical facility that reduces or eliminates the 

20 potential consequences of a chemical facility terrorist 

21 incident, including— 

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

23 amount of a substance of concern possessed or 

24 planned to be possessed by an owner or operator 


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1 of a covered chemical facility through the use of 

2 alternate substances, formulations, or processes; 

3 ‘‘(B) the modification of pressures, tempera4 tures, or concentrations of a substance of con5 cern; and 

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

7 handling of a substance of concern through im8 provement of inventory control or chemical use 

9 efficiency. 

10 ‘‘(13) The term ‘academic laboratory’ means an 

11 area owned by an eligible institution of higher edu12 cation defined pursuant to section 101 of the Higher 

13 Education Act of 1965 (20 U.S.C. 2001) or a non14 profit research institute or teaching hospital that has 

15 a formal affiliation with a college or university where 

16 relatively small quantities of chemicals and other sub17 stances are used on a non-production basis for teach18 ing, research, or diagnostic purposes, and are stored 

19 and used in containers that are easily manipulated 

20 by one person, including photo laboratories, art stu21 dios, field laboratories research farms, chemical stock22 rooms, and preparatory laboratories. 

23 ‘‘(14) The term ‘surface transportation modes’ 

24 means mass transit, commuter and long-distance pas25 senger rail, freight rail, commercial vehicles (includVerDate Nov 24 2008 02:50 Oct 24, 2009 Jkt 089200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6203 E:\BILLS\H2868.RH H2868

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1 ing intercity buses), and pipelines, and related infra2 structure (including roads and highways), that are 

3 within the territory of the United States. 

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

5 CHEMICAL FACILITIES. 

6 ‘‘(a) SUBSTANCES OF CONCERN.— 

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

8 Secretary may designate any chemical substance as a 

9 substance of concern and establish the threshold quan10 tity for each such substance of concern. 

11 ‘‘(2) MATTERS FOR CONSIDERATION.—In desig12 nating a chemical substance or establishing or adjust13 ing the threshold quantity for a chemical substance 

14 under paragraph (1), the Secretary shall consider the 

15 potential extent of death, injury, and serious adverse 

16 effects to human health, the environment, critical in17 frastructure, public health, homeland security, na18 tional security, and the national economy that could 

19 result from a chemical facility terrorist incident. 

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

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

22 Secretary shall maintain a list of covered chemical 

23 facilities that the Secretary determines are of suffi24 cient security risk for inclusion on the list based on 

25 the following criteria: 


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

2 the chemical facility will be the target of a chem3 ical facility terrorist incident. 

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

5 death, injury, or serious adverse effects to human 

6 health, the environment, critical infrastructure, 

7 public health, homeland security, national secu8 rity, and the national economy that could result 

9 from a chemical facility terrorist incident. 

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

11 to large population centers. 

12 ‘‘(2) SUBMISSION OF INFORMATION.—The Sec13 retary may require the submission of information 

14 with respect to the quantities of substances of concern 

15 that an owner or operator of a chemical facility pos16 sesses or plans to possess in order to determine wheth17 er to designate a chemical facility as a covered chem18 ical facility for purposes of this title. 

19 ‘‘(c) ASSIGNMENT OF CHEMICAL FACILITIES TO RISK20 BASED TIERS.— 

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

22 each covered chemical facility to one of four risk-based 

23 tiers established by the Secretary, with tier one rep24 resenting the highest degree of risk and tier four the 

25 lowest degree of risk. 


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1 ‘‘(2) PROVISION OF INFORMATION.—The Sec2 retary may request, and the owner or operator of a 

3 covered chemical facility shall provide, any addi4 tional information beyond any information required 

5 to be submitted under subsection (b)(2) that may be 

6 necessary for the Secretary to assign the chemical fa7 cility to the appropriate tier under paragraph (1). 

8 ‘‘(3) NOTIFICATION.—Not later than 60 days 

9 after the date on which the Secretary determines that 

10 a chemical facility is a covered chemical facility or 

11 is no longer a covered chemical facility or changes the 

12 tier assignment under paragraph (1) of a covered 

13 chemical facility, the Secretary shall notify the owner 

14 or operator of that chemical facility of that deter15 mination or change together with the reason for the 

16 determination or change and, upon the request of the 

17 owner or operator of a covered chemical facility, pro18 vide to the owner or operator of the covered chemical 

19 facility the following information: 

20 ‘‘(A) The number of individuals at risk of 

21 death, injury, or severe adverse effects to human 

22 health as a result of a worst case chemical facil23 ity terrorist incident at the covered chemical fa24 cility. 


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1 ‘‘(B) Information related to the criticality 

2 of the covered chemical facility. 

3 ‘‘(C) The proximity or interrelationship of 

4 the covered chemical facility to other critical in5 frastructure. 

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

7 ‘‘(1) shall periodically review— 

8 ‘‘(A) the designation of a substance of con9 cern and the threshold quantity under subsection 

10 (a)(1); and 

11 ‘‘(B) the criteria under subsection (b)(1); 

12 and 

13 ‘‘(2) may at any time determine whether a 

14 chemical facility is a covered chemical facility or 

15 change the tier to which such a facility is assigned 

16 under subsection (c)(1). 

17 ‘‘(e) PROVISION OF THREAT-RELATED INFORMA18 TION.—In order to effectively assess the vulnerabilities to 

19 a covered chemical facility, the Secretary shall provide to 

20 the owner, operator, or security officer of a covered chemical 

21 facility threat information regarding probable threats to the 

22 facility and methods that could be used in a chemical facil23 ity terrorist incident. 


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1 ‘‘SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND 

2 SITE SECURITY PLANS. 

3 ‘‘(a) IN GENERAL.— 

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

5 ‘‘(A) establish standards, protocols, and pro6 cedures for security vulnerability assessments 

7 and site security plans to be required for covered 

8 chemical facilities; 

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

10 covered chemical facility to— 

11 ‘‘(i) conduct an assessment of the vul12 nerability of the covered chemical facility to 

13 a range of chemical facility terrorist inci14 dents, including an incident that results in 

15 a worst-case release of a substance of con16 cern; 

17 ‘‘(ii) prepare and implement a site se18 curity plan for that covered chemical facil19 ity that addresses the security vulnerability 

20 assessment and meets the risk-based chem21 ical security performance standards under 

22 subsection (b); 

23 ‘‘(iii) include at least one supervisory 

24 and at least one non-supervisory employee 

25 of the covered chemical facility, and at least 

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1 gaining agent at the covered chemical facil2 ity, if any, in developing the security vul3 nerability assessment and site security plan 

4 required under this clause; 

5 ‘‘(iv) include, with the submission of a 

6 security vulnerability assessment of the fa7 cility and the site security plan, a signed 

8 statement by the owner or operator of the 

9 covered chemical facility that certifies that 

10 the submission is provided to the Secretary 

11 with knowledge of the penalty provisions 

12 under section 2107. 

13 ‘‘(C) set deadlines, by tier, for the comple14 tion of security vulnerability assessments and 

15 site security plans; 

16 ‘‘(D) upon request, as necessary, and to the 

17 extent that resources permit, provide technical 

18 assistance to a covered chemical facility con19 ducting a vulnerability assessment or site secu20 rity plan required under this section; 

21 ‘‘(E) establish specific deadlines and re22 quirements for the submission by a covered chem23 ical facility of information describing— 

24 ‘‘(i) any change in the use by the cov25 ered chemical facility of more than a threshVerDate Nov 24 2008 02:50 Oct 24, 2009 Jkt 089200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6203 E:\BILLS\H2868.RH H2868

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1 old amount of any substance of concern that 

2 may affect the requirements of the chemical 

3 facility under this title; or 

4 ‘‘(ii) any material modification to a 

5 covered chemical facility’s operations or site 

6 that may affect the security vulnerability 

7 assessment or site security plan submitted 

8 by the covered chemical facility; 

9 ‘‘(F) require the owner or operator of a cov10 ered chemical facility to review and resubmit a 

11 security vulnerability assessment or site security 

12 plan not less frequently than once every 5 years; 

13 ‘‘(G) not later than 180 days after the date 

14 on which the Secretary receives a security vul15 nerability assessment or site security plan under 

16 this title, review and approve or disapprove such 

17 assessment or plan; and 

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

19 separate standards, protocols, and procedures for 

20 security vulnerability assessments and site secu21 rity plans for covered chemical facilities that are 

22 also academic laboratories. 

23 ‘‘(2) INHERENTLY GOVERNMENTAL FUNCTION.— 

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1 ability assessment or site security plan under this sec2 tion is an inherently governmental function. 

3 ‘‘(b) RISK-BASED CHEMICAL SECURITY PERFORMANCE

4 STANDARDS.—The Secretary shall establish risk-based 

5 chemical security performance standards for the site secu6 rity plans required to be prepared by covered chemical fa7 cilities. In establishing such standards, the Secretary 

8 shall— 

9 ‘‘(1) require separate and, as appropriate, in10 creasingly stringent risk-based chemical security per11 formance standards for site security plans as the level 

12 of risk associated with the tier increases; 

13 ‘‘(2) permit each covered chemical facility sub14 mitting a site security plan to select a combination 

15 of security measures that satisfy the risk-based chem16 ical security performance standards established by the 

17 Secretary under this subsection; and 

18 ‘‘(3) provide, as appropriate, academic labora19 tories with modified or separate security measures 

20 that recognize the smaller quantities, highly distrib21 uted environments, and short periods of time that 

22 characterize the substances of concern at academic 

23 laboratories. 

24 ‘‘(c) CO-LOCATED CHEMICAL FACILITIES.—The Sec25 retary may allow an owner or operator of a covered chemVerDate Nov 24 2008 02:50 Oct 24, 2009 Jkt 089200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6203 E:\BILLS\H2868.RH H2868

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1 ical facility that is located geographically close to another 

2 covered chemical facility to develop and implement coordi3 nated security vulnerability assessments and site security 

4 plans. 

5 ‘‘(d) ALTERNATE SECURITY PROGRAMS SATISFYING

6 REQUIREMENTS FOR SECURITY VULNERABILITY ASSESS7 MENT AND SITE SECURITY PLAN.— 

8 ‘‘(1) ACCEPTANCE OF PROGRAM.—In response to 

9 a request by an owner or operator of a covered chem10 ical facility, the Secretary may accept an alternate 

11 security program submitted by the owner or operator 

12 of the facility as a component of the security vulner13 ability assessment or site security plan required 

14 under this section, if the Secretary determines that 

15 such alternate security program, in combination with 

16 other components of the security vulnerability assess17 ment and site security plan submitted by the owner 

18 or operator of the facility— 

19 ‘‘(A) meets the requirements of this title and 

20 the regulations promulgated pursuant to this 

21 title; 

22 ‘‘(B) provides an equivalent level of security 

23 to the level of security established pursuant to the 

24 regulations promulgated under this title; and 


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1 ‘‘(C) includes employee participation as re2 quired under subsection (a)(1)(B)(iii). 

3 ‘‘(2) SECRETARIAL REVIEW REQUIRED.—Nothing 

4 in this subsection shall relieve the Secretary of the ob5 ligation— 

6 ‘‘(A) to review a security vulnerability as7 sessment and site security plan submitted by a 

8 covered chemical facility under this section; and 

9 ‘‘(B) to approve or disapprove each such as10 sessment or plan on an individual basis accord11 ing to the deadlines established under subsection 

12 (a). 

13 ‘‘(3) COVERED FACILITY’S OBLIGATIONS UNAF14 FECTED.—Nothing in this subsection shall relieve any 

15 covered chemical facility of the obligation and respon16 sibility to comply with all of the requirements of this 

17 title. 

18 ‘‘(4) PERSONNEL SURETY ALTERNATE SECURITY

19 PROGRAM.—In response to an application from a 

20 non-profit, personnel surety accrediting organization 

21 acting on behalf of, and with written authorization 

22 from, the owner or operator of a covered chemical fa23 cility, the Secretary may accept a personnel surety 

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1 ments of section 2115 and provides for a background 

2 check process that is— 

3 ‘‘(A) expedited, affordable, reliable, and ac4 curate; 

5 ‘‘(B) fully protective of the rights of covered 

6 individuals through procedures that are con7 sistent with the privacy protections available 

8 under the Fair Credit Reporting Act (15 U.S.C. 

9 1681 et seq.); and 

10 ‘‘(C) is a single background check consistent 

11 with a risk-based tiered program. 

12 ‘‘(e) OTHER AUTHORITIES.— 

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

14 ‘‘(A) RISK-BASED TIERING.—Notwith15 standing any other provision of law, the owner 

16 or operator of a chemical facility required to 

17 submit a facility security plan under section 

18 70103(c) of title 46, United States Code, shall be 

19 required to submit information to the Secretary 

20 necessary to determine whether to designate such 

21 a facility as a covered chemical facility and to 

22 assign the facility to a risk-based tier under sec23 tion 2102 of this title. 

24 ‘‘(B) ADDITIONAL MEASURES.—In the case 

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1 cility under this title that is also regulated under 

2 section 70103(c) of title 46, United States Code, 

3 the Secretary shall require the owner or operator 

4 of such facility to update the vulnerability as5 sessments and facility security plans required 

6 under that section, if necessary, to ensure an 

7 equivalent level of security for substances of con8 cern, including the requirements under section 

9 2111, in the same manner as other covered chem10 ical facilities in this title. 

11 ‘‘(C) INFORMATION SHARING AND PROTEC12 TION.—Notwithstanding section 70103(d) of title 

13 46, United States Code, the Secretary shall 

14 apply the information sharing and protection re15 quirements in section 2110 of this title to a facil16 ity described in subparagraph (B). 

17 ‘‘(D) ENFORCEMENT.—The Secretary shall 

18 establish, by rulemaking, procedures to ensure 

19 that an owner or operator of a covered chemical 

20 facility required to update the vulnerability as21 sessment and facility security plan for the facil22 ity under subparagraph (B) is in compliance 

23 with the requirements of this title. 

24 ‘‘(E) FORMAL AGREEMENT.—The Secretary 

25 shall— 


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1 ‘‘(i) require the Office of Infrastructure 

2 Protection and the Coast Guard to enter 

3 into a formal agreement detailing their re4 spective roles and responsibilities in car5 rying out the requirements of this title. 

6 Such agreement shall ensure that the en7 forcement and compliance requirements 

8 under this title and section 70103 of title 

9 46, United States Code, are not conflicting 

10 or duplicative; and 

11 ‘‘(ii) designate the agency responsible 

12 for enforcement of the requirements of this 

13 title for covered chemical facilities referred 

14 to in subparagraph (A). 

15 ‘‘(2) COORDINATION OF STORAGE LICENSING OR

16 PERMITTING REQUIREMENT.—In the case of any stor17 age required to be licensed or permitted under chapter 

18 40 of title 18, United States Code, the Secretary shall 

19 prescribe the rules and regulations for the implemen20 tation of this section with the concurrence of the At21 torney General and avoid unnecessary duplication of 

22 regulatory requirements. 

23 ‘‘(f) ROLE OF EMPLOYEES.— 

24 ‘‘(1) DESCRIPTION OF ROLE REQUIRED.—As ap25 propriate, security vulnerability assessments or site 


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1 security plans required under this section shall de2 scribe the roles or responsibilities that covered indi3 viduals are expected to perform to deter or respond to 

4 a chemical facility terrorist incident. 

5 ‘‘(2) TRAINING FOR EMPLOYEES.—The owner or 

6 operator of a covered chemical facility required to 

7 submit a site security plan under this section shall 

8 annually provide each covered individual with a role 

9 or responsibility referred to in paragraph (1) at the 

10 facility with a minimum of 8 hours of training. Such 

11 training shall— 

12 ‘‘(A) include an identification and discus13 sion of substances of concern; 

14 ‘‘(B) include a discussion of possible con15 sequences of a chemical facility terrorist inci16 dent; 

17 ‘‘(C) review and exercise the covered chem18 ical facility’s site security plan, including any 

19 requirements for differing threat levels; 

20 ‘‘(D) include a review of information pro21 tection requirements; 

22 ‘‘(E) include a discussion of physical and 

23 cyber security equipment, systems, and methods 

24 used to achieve chemical security performance 

25 standards; 


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1 ‘‘(F) allow training with other relevant par2 ticipants, including Federal, State, local, and 

3 tribal authorities, and first responders, where 

4 appropriate; 

5 ‘‘(G) use existing national voluntary con6 sensus standards, chosen jointly with employee 

7 representatives, if any; 

8 ‘‘(H) allow instruction through government 

9 training programs, chemical facilities, academic 

10 institutions, nonprofit organizations, industry 

11 and private organizations, employee organiza12 tions, and other relevant entities that provide 

13 such training; 

14 ‘‘(I) use multiple training media and meth15 ods; 

16 ‘‘(J) include identification and assessment 

17 of methods to reduce the consequences of a ter18 rorist attack; and 

19 ‘‘(K) include a discussion of appropriate 

20 emergency response procedures. 

21 ‘‘(g) WORKER TRAINING GRANTS PROGRAM.— 

22 ‘‘(1) AUTHORITY.—The Secretary shall establish 

23 a grant program to award grants to eligible entities 

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1 viduals, first responders, and emergency response pro2 viders. 

3 ‘‘(2) ADMINISTRATION.—The Secretary shall 

4 enter into an agreement with another Federal or 

5 State agency to make and administer grants or coop6 erative agreements under this section. 

7 ‘‘(3) USE OF FUNDS.—The recipient of a grant 

8 under this subsection shall use the grant to provide 

9 for training and education of covered individuals, 

10 first responders, and emergency response providers, 

11 including— 

12 ‘‘(A) the annual mandatory training speci13 fied in subsection (f)(2); and 

14 ‘‘(B) other appropriate training for first re15 sponders and emergency response providers in 

16 protecting nearby persons, property, critical in17 frastructure, or the environment from the effects 

18 of a chemical facility terrorist incident. 

19 ‘‘(4) ELIGIBLE ENTITIES.— For purposes of this 

20 subsection, an eligible entity is a nonprofit organiza21 tion with demonstrated experience in implementing 

22 and operating successful worker or first responder 

23 health and safety training programs. 


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1 ‘‘SEC. 2104. SITE INSPECTIONS. 

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

3 this title, the Secretary shall have, at a reasonable time and 

4 on presentation of credentials, a right of entry to, on, or 

5 through any property of a covered chemical facility or any 

6 property on which any record required to be maintained 

7 under this section is located. 

8 ‘‘(b) INSPECTIONS AND VERIFICATIONS.— 

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

10 time and place as the Secretary determines to be rea11 sonable and appropriate, conduct chemical facility se12 curity inspections and verifications. 

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

14 compliance with this title, including any regulations 

15 or requirements adopted by the Secretary in further16 ance of the purposes of this title, in conducting an in17 spection or verification under paragraph (1), the Sec18 retary shall have access to the owners, operators, em19 ployees, and employee representatives, if any, of a 

20 covered chemical facility. 

21 ‘‘(c) UNANNOUNCED INSPECTIONS.—In addition to 

22 any inspection conducted pursuant to subsection (b), the 

23 Secretary shall require covered chemical facilities assigned 

24 to tier 1 and tier 2 under section 2102(c)(1) to undergo 

25 unannounced facility inspections. The inspections required 

26 under this subsection shall be— 


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1 ‘‘(1) conducted without prior notice to the facil2 ity; 

3 ‘‘(2) designed to evaluate at the chemical facility 

4 undergoing inspection— 

5 ‘‘(A) the ability of the chemical facility to 

6 prevent a chemical facility terrorist incident that 

7 applicable chemical security performance stand8 ards are intended to prevent; 

9 ‘‘(B) the ability of the chemical facility to 

10 protect against security threats that are required 

11 to be addressed by applicable chemical security 

12 performance standards; and 

13 ‘‘(C) any weaknesses in the security plan of 

14 the chemical facility; 

15 ‘‘(3) conducted so as not to affect the actual secu16 rity, physical integrity, or safety of the chemical fa17 cility or its employees while the inspection is con18 ducted; and 

19 ‘‘(4) conducted— 

20 ‘‘(A) every two years in the case of a cov21 ered chemical facility assigned to tier 1; and 

22 ‘‘(B) every four years in the case of a cov23 ered chemical facility assigned to tier 2. 

24 ‘‘(d) CHEMICAL SECURITY INSPECTORS AUTHOR25 IZED.—Subject to availability of appropriations for such 


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1 purpose, the Secretary shall hire not fewer than 100 addi2 tional chemical facility inspectors in fiscal years 2010 and 

3 2011 to ensure compliance with this title. 

4 ‘‘SEC. 2105. RECORDS. 

5 ‘‘(a) REQUESTS FOR RECORDS.— 

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

7 Secretary may require the submission of or, on pres8 entation of credentials, may at reasonable times ob9 tain access to and copy any records, including any 

10 records maintained in electronic format, necessary 

11 for— 

12 ‘‘(A) reviewing or analyzing a security vul13 nerability assessment or site security plan sub14 mitted under section 2103; or 

15 ‘‘(B) assessing the implementation of such a 

16 site security plan. 

17 ‘‘(2) PROPER HANDLING OF RECORDS.—In ac18 cessing or copying any records under paragraph (1), 

19 the Secretary shall ensure that such records are han20 dled and secured appropriately in accordance with 

21 section 2110. 

22 ‘‘(b) PROVISION OF RECORDS TO EMPLOYEE REP23 RESENTATIVES.—If a covered chemical facility has one or 

24 more certified or recognized bargaining agents, the owner 

25 or operator of the covered chemical facility shall provide 


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1 an employee representative designated by each such bar2 gaining agent at such facility with a copy of any security 

3 vulnerability assessment or site security plan submitted. 

4 Each employee representative shall ensure that any such as5 sessment or plan provided to the representative is handled 

6 and secured appropriately in accordance with section 2110. 

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

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

9 receipt of information concerning a threat that is relevant 

10 to a certain covered chemical facility, the Secretary shall 

11 provide such information in a timely manner, to the max12 imum extent practicable under applicable authority and in 

13 the interests of national security, to the owner, operator, 

14 or security officer of that covered chemical facility, to a rep15 resentative of each recognized or certified bargaining agent 

16 at the facility, if any, and to relevant State, local, and trib17 al authorities, including the State Homeland Security Ad18 visor, if applicable. 

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

20 The Secretary shall require the owner or operator of a cov21 ered chemical facility to provide information concerning a 

22 threat in a timely manner about any significant security 

23 incident or threat to the covered chemical facility or any 

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1 curity or cyber security of the covered chemical facility 

2 whether successful or unsuccessful. 

3 ‘‘SEC. 2107. ENFORCEMENT. 

4 ‘‘(a) REVIEW OF SITE SECURITY PLAN.— 

5 ‘‘(1) DISAPPROVAL.—The Secretary shall dis6 approve a security vulnerability assessment or site se7 curity plan submitted under this title if the Secretary 

8 determines that— 

9 ‘‘(A) the security vulnerability assessment 

10 or site security plan does not comply with the 

11 standards, protocols, or procedures under section 

12 2103(a)(1)(A); or 

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

14 ‘‘(i) the plan or the implementation of 

15 the plan is insufficient to address 

16 vulnerabilities identified in a security vul17 nerability assessment, site inspection, or 

18 unannounced inspection of the covered 

19 chemical facility; or 

20 ‘‘(ii) the plan fails to meet all applica21 ble chemical facility security performance 

22 standards. 

23 ‘‘(2) PROVISION OF NOTIFICATION OF DIS24 APPROVAL.—If the Secretary disapproves the security 

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1 mitted by a covered chemical facility under this title 

2 or the implementation of a site security plan by such 

3 a chemical facility, the Secretary shall provide the 

4 owner or operator of the covered chemical facility a 

5 written notification of the disapproval within 14 days 

6 of the date on which the Secretary disapproves such 

7 assessment or plan, that— 

8 ‘‘(A) includes a clear explanation of defi9 ciencies in the assessment, plan, or implementa10 tion of the plan; and 

11 ‘‘(B) requires the owner or operator of the 

12 covered chemical facility to revise the assessment 

13 or plan to address any deficiencies and, by such 

14 date as the Secretary determines is appropriate, 

15 to submit to the Secretary the revised assessment 

16 or plan. 

17 ‘‘(3) ORDER FOR COMPLIANCE.—Whenever the 

18 Secretary determines that the owner or operator of a 

19 covered chemical facility has violated or is in viola20 tion of any requirement of this title or has failed or 

21 is failing to address any deficiencies in the assess22 ment, plan, or implementation of the plan by such 

23 date as the Secretary determines to be appropriate, 

24 the Secretary, after providing an opportunity for the 


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1 owner or operator of the covered chemical facility to 

2 consult with the Secretary, may— 

3 ‘‘(A) issue an order assessing a civil penalty 

4 for any past or current violation, requiring com5 pliance immediately or within a specified time 

6 period, or both; or 

7 ‘‘(B) commence a civil action in the United 

8 States district court in the district in which the 

9 violation occurred for appropriate relief, includ10 ing temporary or permanent injunction. 

11 ‘‘(4) ORDER TO CEASE OPERATIONS.—If the Sec12 retary determines that the owner or operator of a cov13 ered chemical facility continues to be in noncompli14 ance after an order for compliance is issued under 

15 paragraph (3), the Secretary may issue an order to 

16 the owner or operator of a covered chemical facility 

17 to cease operations at the facility until the owner or 

18 operator complies with such order issued under para19 graph (3). Notwithstanding the preceding sentence, 

20 the Secretary may not issue an order to cease oper21 ations under this paragraph to the owner or operator 

22 of a wastewater facility. 

23 ‘‘(b) PENALTIES.— 

24 ‘‘(1) CIVIL PENALTIES.—A court may award a 

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1 retary under this title, of not more than $50,000 for 

2 each day on which a violation occurs or a failure to 

3 comply continues. 

4 ‘‘(2) ADMINISTRATIVE PENALTIES.—The Sec5 retary may award an administrative penalty, pursu6 ant to an order issued under this title, of not more 

7 than $25,000 for each day on which a violation oc8 curs or a failure to comply continues. 

9 ‘‘(3) APPLICABILITY OF PENALTIES.—Penalties 

10 under paragraphs (1) and (2) may be awarded for 

11 any violation of this title, including a violation of the 

12 whistleblower protections under section 2108. 

13 ‘‘SEC. 2108. WHISTLEBLOWER PROTECTIONS. 

14 ‘‘(a) ESTABLISHMENT.—The Secretary shall establish 

15 and provide information to the public regarding a process 

16 by which any person may submit a report to the Secretary 

17 regarding problems, deficiencies, or vulnerabilities at a cov18 ered chemical facility associated with the risk of a chemical 

19 facility terrorist incident. 

20 ‘‘(b) CONFIDENTIALITY.—The Secretary shall keep con21 fidential the identity of a person that submits a report 

22 under subsection (a) and any such report shall be treated 

23 as protected information under section 2110 to the extent 

24 that it does not consist of publicly available information. 


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1 ‘‘(c) ACKNOWLEDGMENT OF RECEIPT.—If a report 

2 submitted under subsection (a) identifies the person submit3 ting the report, the Secretary shall respond promptly to 

4 such person to acknowledge receipt of the report. 

5 ‘‘(d) STEPS TO ADDRESS PROBLEMS.—The Secretary 

6 shall review and consider the information provided in any 

7 report submitted under subsection (a) and shall, as nec8 essary, take appropriate steps under this title to address 

9 any problem, deficiency, or vulnerability identified in the 

10 report. 

11 ‘‘(e) RETALIATION PROHIBITED.— 

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

13 covered chemical facility, for-profit or not-for-profit 

14 corporation, association, or any contractor, subcon15 tractor or agent thereof, may discharge any employee 

16 or otherwise discriminate against any employee with 

17 respect to his compensation, terms, conditions, or 

18 other privileges of employment because the employee 

19 (or any person acting pursuant to a request of the 

20 employee)— 

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

22 operator of a covered chemical facility, or the 

23 employee’s employer of an alleged violation of 

24 this title, including communications related to 

25 carrying out the employee’s job duties; 


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

2 made unlawful by this title, if the employee has 

3 identified the alleged illegality to the employer; 

4 ‘‘(C) testified before or otherwise provided 

5 information relevant for Congress or for any 

6 Federal or State proceeding regarding any pro7 vision (or proposed provision) of this title; 

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

9 or is about to commence or cause to be com10 menced a proceeding under this title; 

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

12 such proceeding; or 

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

14 assist or participate in any manner in such a 

15 proceeding or in any other manner in such a 

16 proceeding or in any other action to carry out 

17 the purposes of this title. 

18 ‘‘(2) ENFORCEMENT ACTION.—Any employee cov19 ered by this section who alleges discrimination by an 

20 employer in violation of paragraph (1) may bring an 

21 action governed by the rules and procedures, legal 

22 burdens of proof, and remedies applicable under sub23 sections (d) through (h) of section 20109 of title 49, 

24 United States Code. A party may seek district court 

25 review as set forth in subsection (d)(4) of such section 


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1 not later than 90 days after receiving a written final 

2 determination by the Secretary of Labor. 

3 ‘‘(f) PROHIBITED PERSONNEL PRACTICES AFFECTING

4 THE DEPARTMENT.— 

5 ‘‘(1) IN GENERAL.—Notwithstanding any other 

6 provision of law, any individual holding or applying 

7 for a position of employment within the Department 

8 shall be covered by— 

9 ‘‘(A) paragraphs (1), (8), and (9) of section 

10 2302(b) of title 5, United States Code; 

11 ‘‘(B) any provision of law implementing 

12 any of such paragraphs by providing any right 

13 or remedy available to an employee or applicant 

14 for employment in the civil service; and 

15 ‘‘(C) any rule or regulation prescribed 

16 under any such paragraph. 

17 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in this 

18 paragraph shall be construed to affect any rights, 

19 apart from those referred to in paragraph (1), to 

20 which an individual described in that subparagraph 

21 might otherwise be entitled to under law. 

22 ‘‘SEC. 2109. FEDERAL PREEMPTION. 

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

24 State or political subdivision thereof to adopt or enforce any 

25 regulation, requirement, or standard of performance with 


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1 respect to a covered chemical facility that is more stringent 

2 than a regulation, requirement, or standard of performance 

3 issued under this title, or otherwise impair any right or 

4 jurisdiction of any State or political subdivision thereof 

5 with respect to covered chemical facilities within that State 

6 or political subdivision thereof. 

7 ‘‘SEC. 2110. PROTECTION OF INFORMATION. 

8 ‘‘(a) PROHIBITION OF PUBLIC DISCLOSURE OF PRO9 TECTED INFORMATION.—Protected information, as de10 scribed in subsection (g), that is provided to the Department 

11 by the owner or operator of a covered chemical facility or 

12 created by the Department under the requirements of this 

13 title— 

14 ‘‘(1) is exempt from disclosure under section 552 

15 of title 5, United States Code; and 

16 ‘‘(2) may not be made available pursuant to any 

17 State or local law requiring disclosure of information 

18 or records. 

19 ‘‘(b) INFORMATION SHARING.—The Secretary shall fa20 cilitate and provide standards for the appropriate sharing 

21 of protected information with and between Federal, State, 

22 local, and tribal governments, emergency response pro23 viders, law enforcement officials, designated supervisory 

24 and non-supervisory covered chemical facility personnel 

25 with security, operational, or fiduciary responsibility for 


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1 the facility, and designated facility employee representa2 tives, if any. 

3 ‘‘(c) TREATMENT OF INFORMATION IN ADJUDICATIVE

4 PROCEEDINGS.—In a proceeding under this title, protected 

5 information described in subsection (g), or related vulner6 ability or security information, shall be treated in any judi7 cial or administrative action in a manner consistent with 

8 the treatment of sensitive security information under sec9 tion 525 of the Department of Homeland Security Appro10 priations Act, 2007 (Public Law 109-295; 120 Stat. 1321). 

11 ‘‘(d) OTHER OBLIGATIONS UNAFFECTED.—Nothing in 

12 this section affects any obligation of the owner or operator 

13 of a chemical facility under any other law to submit or 

14 make available information required by such other law to 

15 facility employees, employee organizations, or a Federal, 

16 State, tribal, or local government. 

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

18 Nothing in this title shall permit or authorize the with19 holding of information from Congress or any committee or 

20 subcommittee thereof. 

21 ‘‘(f) DISCLOSURE OF INDEPENDENTLY FURNISHED IN22 FORMATION.—Nothing in this title shall affect any author23 ity or obligation of a Federal, State, or local agency to pro24 tect or disclose any record or information that the Federal, 


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1 State, or local government agency obtains from a chemical 

2 facility under any other law. 

3 ‘‘(g) PROTECTED INFORMATION.— 

4 ‘‘(1) IN GENERAL.—For purposes of this title, 

5 protected information is the following: 

6 ‘‘(A) Security vulnerability assessments and 

7 site security plans submitted to the Secretary 

8 under this title. 

9 ‘‘(B) Portions of the following documents, 

10 records, orders, notices, or letters that the Sec11 retary determines would be detrimental to chem12 ical facility security if disclosed and that are de13 veloped by the Secretary or the owner or oper14 ator of a covered chemical facility exclusively for 

15 the purposes of this title: 

16 ‘‘(i) Documents directly related to the 

17 Secretary’s review and approval or dis18 approval of vulnerability assessments and 

19 site security plans under this title. 

20 ‘‘(ii) Documents directly related to in21 spections and audits under this title. 

22 ‘‘(iii) Orders, notices, or letters regard23 ing the compliance of a covered chemical fa24 cility with the requirements of this title. 


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1 ‘‘(iv) Information provided to or cre2 ated by the Secretary under section sub3 section (b) or (c) of section 2102. 

4 ‘‘(C) Other information developed exclu5 sively for the purposes of this title that the Sec6 retary determines, if disclosed, would be detri7 mental to chemical facility security. 

8 ‘‘(2) EXCLUSIONS.—For purposes of this section, 

9 protected information does not include— 

10 ‘‘(A) information that is otherwise publicly 

11 available, including information that is required 

12 to be made publicly available under any law; 

13 ‘‘(B) information that a chemical facility 

14 has lawfully disclosed other than in accordance 

15 with this title; or 

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

17 not be detrimental to the security of a chemical 

18 facility, including aggregate regulatory data that 

19 the Secretary determines is appropriate to de20 scribe facility compliance with the requirements 

21 of this title and the Secretary’s implementation 

22 of such requirements. 


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

2 A TERRORIST ATTACK. 

3 ‘‘(a) ASSESSMENT REQUIRED.—The owner or operator 

4 of a covered chemical facility shall include in the site secu5 rity plan conducted pursuant to section 2103, an assess6 ment of methods to reduce the consequences of a terrorist 

7 attack on that chemical facility, including— 

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

9 consequences of a terrorist attack assessed by the cov10 ered chemical facility; 

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

12 the consequences of a terrorist attack could, if applied, 

13 reduce the potential extent of death, injury, or serious 

14 adverse effects to human health resulting from a ter15 rorist release; 

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

17 (including liabilities), savings, and applicability of 

18 implementing each method to reduce the consequences 

19 of a terrorist attack; and 

20 ‘‘(4) any other information that the owner or op21 erator of the covered chemical facility considered in 

22 conducting the assessment. 

23 ‘‘(b) IMPLEMENTATION.— 

24 ‘‘(1) IMPLEMENTATION.—The owner or operator 

25 of a covered chemical facility assigned to tier 1 or tier 

26 2 that is required to conduct an assessment under 


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1 subsection (a) shall implement methods to reduce the 

2 consequences of a terrorist attack on the chemical fa3 cility if the Secretary determines, based on an assess4 ment in subsection (a), that the implementation of 

5 such methods at the facility— 

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

7 death, injury, or serious adverse effects to human 

8 health resulting from a chemical facility terrorist 

9 incident but would not increase the interim stor10 age of a substance of concern outside the facility 

11 or directly result in the creation of a new covered 

12 chemical facility assigned to tier 1 or tier 2 or 

13 the elevation of an existing covered chemical fa14 cility to tier 1 or tier 2; 

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

16 operation of the covered chemical facility; 

17 ‘‘(C) would not significantly and demon18 strably impair the ability of the owner or oper19 ator of the covered chemical facility to continue 

20 the business of the facility at its location; 

21 ‘‘(D) would not significantly or demon22 strably reduce the operations of the covered chem23 ical facility or result in a reduction of the work24 force of the covered chemical facility; and 


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1 ‘‘(E) would not significantly transfer secu2 rity risk to the transportation infrastructure of 

3 the United States. 

4 ‘‘(2) ANALYSIS REQUIRED.— 

5 ‘‘(A) IN GENERAL.—The Secretary may not 

6 require facilities to implement methods to reduce 

7 the consequences of a terrorist attack until the 

8 Secretary conducts a detailed analysis of the ef9 fects of such mandatory implementation. Such 

10 analysis shall consider— 

11 ‘‘(i) the costs companies and facilities 

12 will incur as a result of mandatory imple13 mentation; 

14 ‘‘(ii) any resultant loss of employment 

15 sustained; and 

16 ‘‘(iii) any loss of production due to im17 plementation. 

18 ‘‘(B) CONSULTATION.— In completing the 

19 analysis required by subparagraph (A), the Sec20 retary shall consult with relevant stakeholder 

21 groups, including— 

22 ‘‘(i) experts from the chemical indus23 try; 

24 ‘‘(ii) representatives of covered chem25 ical facilities; 


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1 ‘‘(iii) members of the academic com2 munity; and 

3 ‘‘(iv) appropriate representatives from 

4 organized labor. 

5 ‘‘(C) REPORT.—The Secretary shall submit 

6 to the Committee on Homeland Security of the 

7 House of Representatives and the Committee on 

8 Homeland Security and Governmental Affairs of 

9 the Senate a report detailing the Secretary’s 

10 analysis required by this subsection. 

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

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

13 of a covered chemical facility who is unable to 

14 comply with the Secretary’s determination under 

15 paragraph (1) shall, within 60 days of receipt of 

16 the Secretary’s determination, provide to the 

17 Secretary a written explanation that includes the 

18 reasons therefor. 

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

20 after the receipt of an explanation submitted 

21 under subparagraph (A), the Secretary, after 

22 consulting with the owner or operator of the cov23 ered chemical facility who submitted such expla24 nation, shall provide to the owner or operator a 

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1 tion shall be required pursuant to paragraph (1). 

2 If the Secretary determines that implementation 

3 is required, the facility shall be required to begin 

4 implementation within 180 days of that deter5 mination. 

6 ‘‘(4) APPEALS.— 

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

8 of a covered chemical facility who is unable to 

9 comply with the Secretary’s determination under 

10 paragraph (3)(B) may request a de novo hearing 

11 before an administrative law judge of the De12 partment of Homeland Security within 30 days 

13 of receipt of the Secretary’s determination. An 

14 owner or operator of a covered facility requesting 

15 such a hearing shall not be required to begin im16 plementation otherwise required by paragraph 

17 (3)(B). 

18 ‘‘(B) HEARING.—To the extent necessary for 

19 the decision in a proceeding commenced under 

20 this paragraph, the administrative law judge 

21 shall decide all relevant questions of law and reg22 ulation. The administrative law judge shall set 

23 aside the Secretary’s determination if it is deter24 mined to be— 


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1 ‘‘(i) arbitrary, capricious, an abuse of 

2 discretion, or otherwise not consistent with 

3 law; 

4 ‘‘(ii) not made consistent with required 

5 procedures; or 

6 ‘‘(iii) not supported by substantial evi7 dence. 

8 ‘‘(C) TIME FRAME FOR DECISIONS.—The de9 cision of the administrative law judge shall be 

10 rendered within 30 days of the de novo hearing 

11 and shall constitute final action by the Sec12 retary. 

13 ‘‘(D) ACTION UPON DECISION.—If the ad14 ministrative law judge— 

15 ‘‘(i) concurs with the Secretary’s deter16 mination under paragraph (1), the owner 

17 or operator of a covered chemical facility 

18 shall begin to implement the methods to re19 duce the consequences of a terrorist attack 

20 required by the Secretary not later than 180 

21 days following the decision of the adminis22 trative law judge; or 

23 ‘‘(ii) sets aside the Secretary’s deter24 mination under such paragraph, the owner 

25 or operator of a covered chemical facility 


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1 shall not be required to comply with such 

2 methods. 

3 ‘‘(c) PROVISION OF INFORMATION ON ALTERNATIVE

4 APPROACHES.— 

5 ‘‘(1) IN GENERAL.—The Secretary shall make 

6 available information to chemical facilities on the use 

7 and availability of methods to reduce the consequences 

8 of a chemical facility terrorist incident. 

9 ‘‘(2) INFORMATION TO BE INCLUDED.—The in10 formation under paragraph (1) may include informa11 tion about— 

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

13 methods; 

14 ‘‘(B) combinations of chemical sources, sub15 stances of concern, and hazardous processes or 

16 conditions for which such methods could be ap17 propriate; 

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

19 reduce the consequences of a terrorist attack; 

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

21 from the use of such methods; 

22 ‘‘(E) emerging technologies that could be 

23 transferred from research models or prototypes to 

24 practical applications; 


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1 ‘‘(F) the availability of technical assistance 

2 and best practices; and 

3 ‘‘(G) such other matters as the Secretary de4 termines is appropriate. 

5 ‘‘(3) PUBLIC AVAILABILITY.—Information made 

6 available under this subsection shall not identify any 

7 specific chemical facility, violate the protection of in8 formation provisions under section 2110, or disclose 

9 any proprietary information. 

10 ‘‘(d) FUNDING FOR METHODS TO REDUCE THE CON11 SEQUENCES OF A TERRORIST ATTACK.—The Secretary may 

12 make funds available to help defray the cost of imple13 menting methods to reduce the consequences of a terrorist 

14 attack to covered chemical facilities that are required by 

15 the Secretary to implement such methods. 

16 ‘‘(e) APPLICABILITY TO SMALL BUSINESS CON17 CERNS.— 

18 ‘‘(1) REPORT.— 

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

20 after the date of the enactment of this Act, the 

21 Secretary shall submit a report to the Committee 

22 on Homeland Security of the House of Rep23 resentatives that reviews and assesses the security 

24 issues associated with exempting from this sec25 tion businesses that are small business concerns, 


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1 as determined by the Administrator of the Small 

2 Business Administration pursuant to the regula3 tions set forth in 13 C.F.R. 121.201, as in effect 

4 on January 1, 2009. 

5 ‘‘(B) CONTENTS.—The report shall in6 clude— 

7 ‘‘(i) an analysis of the potential issues 

8 relevant to exempting small business con9 cerns, as defined in subparagraph (A), from 

10 the requirements of this section, including 

11 the potential effect of such an exemption on 

12 the security of chemical facilities in the 

13 United States and the economic effect of ap14 plying this section to such small business 

15 concerns; and 

16 ‘‘(ii) any other elements the Secretary 

17 determines to be relevant or appropriate. 

18 ‘‘(2) DETERMINATION OF APPLICABILITY.—Upon 

19 submission of the report required in paragraph (1), 

20 the Secretary shall determine whether a small busi21 ness concern, as defined in paragraph (1)(A), shall be 

22 subject to or exempt from this section. 

23 ‘‘SEC. 2112. APPLICABILITY. 

24 ‘‘This title shall not apply to— 


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1 ‘‘(1) any chemical facility that is owned and op2 erated by the Secretary of Defense; 

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

4 incidental storage, of any substance of concern regu5 lated as a hazardous material under chapter 51 of 

6 title 49, United States Code; or 

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

8 facility that— 

9 ‘‘(A) is subject to regulation by the Nuclear 

10 Regulatory Commission (hereinafter in this 

11 paragraph referred to as the ‘Commission’) or a 

12 State that has entered into an agreement with 

13 the Commission under section 274 b. of the 

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

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

16 the Commission or State, whichever has the regu17 latory authority, on the entire facility or the 

18 specified portion of the facility; and 

19 ‘‘(C) has been designated by the Commis20 sion, after consultation with the State, if any, 

21 that regulates the facility, and the Secretary, as 

22 excluded from the application of this title. 

23 ‘‘SEC. 2113. SAVINGS CLAUSE. 

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

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


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1 person under any other Federal law, including section 112 

2 of the Clean Air Act (42 U.S.C. 7412), the Federal Water 

3 Pollution Control Act (33 U.S.C. 1251 et seq.), the Resource 

4 Conservation and Recovery Act of 1976 (42 U.S.C. 6901 

5 et seq.), the National Environmental Policy Act of 1969 (42 

6 U.S.C. 4321 et seq.), the Occupational Safety and Health 

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

8 Act (29 U.S.C. 151 et seq.), the Emergency Planning and 

9 Community Right to Know Act of 1996 (42 U.S.C. 11001 

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

11 seq.), the Maritime Transportation Security Act of 2002 

12 (Public Law 107–295), the Comprehensive Environmental 

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

14 U.S.C. 9601 et seq.), and the Toxic Substances Control Act 

15 (15 U.S.C. 2601 et seq.). 

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

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

18 subdivision thereof to adopt or enforce any regulation, re19 quirement, or standard of performance relating to environ20 mental protection, health, or safety. 

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

22 ‘‘(a) IN GENERAL.—There is established in the Depart23 ment an Office of Chemical Facility Security, headed by 

24 a Director, who shall be a member of the Senior Executive 

25 Service in accordance with subchapter VI of chapter 33 of 


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

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

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

6 of Chemical Facility Security shall have professional quali7 fications and experience necessary for effectively directing 

8 the Office of Chemical Facility Security and carrying out 

9 the requirements of this title, including a demonstrated 

10 knowledge of physical infrastructure protection, cybersecu11 rity, chemical facility security, hazard analysis, chemical 

12 process engineering, chemical process safety reviews, or 

13 other such qualifications that the Secretary determines to 

14 be necessary. 

15 ‘‘(c) SELECTION PROCESS.—The Secretary shall make 

16 a reasonable effort to select an individual to serve as the 

17 Director from among a group of candidates that is diverse 

18 with respect to race, ethnicity, age, gender, and disability 

19 characteristics and submit to the Committee on Homeland 

20 Security and the Committee on Energy and Commerce of 

21 the House of Representatives and the Committee on Home22 land Security and Governmental Affairs of the Senate in23 formation on the selection process, including details on ef24 forts to assure diversity among the candidates considered 

25 for this position. 


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

2 INDIVIDUALS AT CERTAIN CHEMICAL FACILI3 TIES. 

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

5 ‘‘(1) IN GENERAL.— 

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

7 issue regulations to require covered chemical fa8 cilities to establish personnel surety for individ9 uals described in subparagraph (B) by con10 ducting appropriate security background checks 

11 and ensuring appropriate credentials for 

12 unescorted visitors and chemical facility per13 sonnel, including permanent and part-time per14 sonnel, temporary personnel, and contract per15 sonnel, including— 

16 ‘‘(i) measures designed to verify and 

17 validate identity; 

18 ‘‘(ii) measures designed to check crimi19 nal history; 

20 ‘‘(iii) measures designed to verify and 

21 validate legal authorization to work; and 

22 ‘‘(iv) measures designed to identify 

23 people with terrorist ties. 

24 ‘‘(B) INDIVIDUALS DESCRIBED.—For pur25 poses of subparagraph (A), an individual de26 scribed in this subparagraph is an individual 


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1 with access to restricted areas or critical assets 

2 of a covered chemical facility, including— 

3 ‘‘(i) a covered individual who has 

4 unescorted access to restricted areas or crit5 ical assets or who is provided with a copy 

6 of a security vulnerability assessment or site 

7 security plan; 

8 ‘‘(ii) a person associated with a cov9 ered chemical facility who is provided with 

10 a copy of a security vulnerability assess11 ment or site security plan; or 

12 ‘‘(iii) a person who is determined by 

13 the Secretary to require a security back14 ground check based on chemical facility se15 curity performance standards. 

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

17 by paragraph (1) shall set forth— 

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

19 checks, including the types of disqualifying of20 fenses and the time period covered for each per21 son subject to a security background check under 

22 paragraph (1); 

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

24 background checks; 


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1 ‘‘(C) the necessary biographical information 

2 and other data required in order to conduct the 

3 security background checks; 

4 ‘‘(D) a redress process for an adversely-af5 fected person consistent with subsections (b) and 

6 (d); and 

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

8 of a covered chemical facility unreasonably mis9 representing to an employee or other relevant 

10 person, including an arbiter involved in a labor 

11 arbitration, the scope, application, or meaning of 

12 any rules, regulations, directives, or guidance 

13 issued by the Secretary related to security back14 ground check requirements for covered individ15 uals when conducting a security background 

16 check. 

17 ‘‘(b) REQUIREMENTS.—Upon issuance of regulations 

18 under subsection (a), the Secretary shall prohibit the owner 

19 or operator of a covered chemical facility from making an 

20 adverse employment decision, including removal or suspen21 sion of the employee, due to such regulations with respect 

22 to such person unless such person— 

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

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

25 warrant, or indictment for a permanent disqualifying 


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

2 of Federal Regulations; 

3 ‘‘(2) was convicted of or found not guilty by rea4 son of insanity of an interim disqualifying criminal 

5 offense listed in part 1572 of title 49, Code of Federal 

6 Regulations, within 7 years of the date on which the 

7 covered chemical facility performs the security back8 ground check; 

9 ‘‘(3) was incarcerated for an interim disquali10 fying criminal offense listed in part 1572 of title 49, 

11 Code of Federal Regulations, and released from incar12 ceration within 5 years of the date that the chemical 

13 facility performs the security background check; 

14 ‘‘(4) is determined by the Secretary to be on the 

15 consolidated terrorist watchlist; or 

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

17 background check, not to be legally authorized to work 

18 in the United States. 

19 ‘‘(c) TERMINATION OF EMPLOYMENT.—If an owner or 

20 operator of a chemical facility finds that pursuant to a se21 curity background check a covered individual is not legally 

22 authorized to work in the United States, the owner or oper23 ator shall cease to employ the covered individual subject to 

24 the redress process under subsection (d). 


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1 ‘‘(d) REDRESS PROCESS.—Upon the issuance of regu2 lations under subsection (a), the Secretary shall— 

3 ‘‘(1) require an adequate and prompt redress 

4 process for a person subject to a security background 

5 check under subsection (a)(1) who is subjected to an 

6 adverse employment decision, including removal or 

7 suspension of the employee, due to such regulations 

8 that is consistent with the appeals and waiver proc9 esses established for applicants for transportation 

10 workers at ports, as required by section 70105(c) of 

11 title 46, United States Code, including all rights to 

12 hearings before an administration law judge, scope of 

13 review, a review of an unclassified summary of classi14 fied evidence equivalent to the summary provided in 

15 part 1515 of title 49, Code of Federal Regulations, 

16 and procedures for new evidence for both appeals and 

17 waiver decisions; 

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

19 remedy, including reinstatement of the person subject 

20 to a security background check under subsection 

21 (a)(1), should the Secretary determine that the owner 

22 or operator of a covered chemical facility wrongfully 

23 made an adverse employment decision regarding such 

24 person pursuant to such rule, regulation, directive, or 

25 guidance; 


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

2 under this subsection affords to the covered individual 

3 a full disclosure of any public-record event covered by 

4 subsection (b) that provides the basis for an adverse 

5 employment decision; and 

6 ‘‘(4) ensure that the person subject to a security 

7 background check under subsection (a)(1) receives the 

8 person’s full wages and benefits until all appeals and 

9 waiver procedures are exhausted. 

10 ‘‘(e) RESTRICTIONS ON USE AND MAINTENANCE OF IN11 FORMATION.—Information obtained under this section by 

12 the Secretary or the owner or operator of a covered chemical 

13 facility shall be handled as follows: 

14 ‘‘(1) Such information may not be made avail15 able to the public. 

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

17 employees of the facility except for such employees 

18 who are directly involved with collecting the informa19 tion or conducting or evaluating security background 

20 checks. 

21 ‘‘(3) Such information shall be maintained con22 fidentially by the facility and the Secretary and may 

23 be used only for making determinations under this 

24 section. 


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

2 with other Federal, State, local, and tribal law en3 forcement agencies. 

4 ‘‘(f) RIGHTS AND RESPONSIBILITIES.—Nothing in this 

5 section shall be construed to abridge any right or responsi6 bility of a person subject to a security background check 

7 under subsection (a)(1) or an owner or operator of a covered 

8 chemical facility under any other Federal, State, local, or 

9 tribal law or collective bargaining agreement. 

10 ‘‘(g) PREEMPTION.—Nothing in this section shall be 

11 construed to preempt, alter, or affect a Federal, State, local, 

12 or tribal law that requires criminal history background 

13 checks, checks on the authorization of an individual to work 

14 in the United States, or other background checks of persons 

15 subject to security background checks under subsection 

16 (a)(1). 

17 ‘‘(h) DEFINITION OF SECURITY BACKGROUND

18 CHECK.—The term ‘security background check’ means a re19 view at no cost to any person subject to a security back20 ground check under subsection (a)(1) of the following for 

21 the purpose of identifying individuals who may pose a 

22 threat to chemical facility security, to national security, or 

23 of terrorism: 

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

25 identity. 


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1 ‘‘(2) Relevant criminal history databases. 

2 ‘‘(3) In the case of an alien (as defined in section 

3 101 of the Immigration and Nationality Act (8 

4 U.S.C. 1101(a)(3))), the relevant databases to deter5 mine the status of the alien under the immigration 

6 laws of the United States. 

7 ‘‘(4) The consolidated terrorist watchlist. 

8 ‘‘(5) Other relevant information or databases, as 

9 determined by the Secretary. 

10 ‘‘(i) SAVINGS CLAUSE.—Nothing in this section shall 

11 be construed as creating any new right or modifying any 

12 existing right of an individual to appeal a determination 

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

14 watch list. 

15 ‘‘SEC. 2116. CITIZEN SUITS. 

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

17 (c), any person may commence a civil action on the person’s 

18 own behalf— 

19 ‘‘(1) against any person (including the United 

20 States and any other governmental instrumentality 

21 or agency, to the extent permitted by the eleventh 

22 amendment to the Constitution) who is alleged to be 

23 in violation of any standard, regulation, condition, 

24 requirement, prohibition, or order which has become 

25 effective pursuant to this title; or 


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1 ‘‘(2) against the Secretary, if there is an alleged 

2 failure of the Secretary to perform any act or duty 

3 under this title that is not discretionary for the Sec4 retary. 

5 ‘‘(b) COURT OF JURISDICTION.— 

6 ‘‘(1) IN GENERAL.—Any action under subsection 

7 (a)(1) shall be brought in the district court for the 

8 district in which the alleged violation occurred. Any 

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

10 brought in the district court for the district in which 

11 the alleged violation occurred or in the United States 

12 District Court of the District of Columbia. 

13 ‘‘(2) RELIEF.—The district court shall have ju14 risdiction, without regard to the amount in con15 troversy or the citizenship of the parties, to enforce 

16 the standard, regulation, condition, requirement, pro17 hibition, or order, referred to in subsection (a)(1), to 

18 order such person to take such other action as may 

19 be necessary, or both, or to order the Secretary to per20 form the act or duty referred to in subsection (a)(2), 

21 as the case may be, and to apply any appropriate 

22 civil penalties under section 2107. 

23 ‘‘(c) ACTIONS PROHIBITED.—No action may be com24 menced under subsection (a)— 


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1 ‘‘(1) prior to 120 days after the date on which 

2 the person commencing the action has given notice of 

3 the alleged violation to— 

4 ‘‘(A) the Secretary; and 

5 ‘‘(B) in the case of an action under sub6 section (a), any alleged violator of such stand7 ard, regulation, condition, requirement, prohibi8 tion, or order; or 

9 ‘‘(2) if the Secretary has commenced and is dili10 gently prosecuting a civil or criminal action in a 

11 court of the United States or a State, or has issued 

12 an administrative order, to require compliance with 

13 such standard, regulation, condition, requirement, 

14 prohibition, or order. 

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

16 in such manner as the Secretary shall prescribe by regula17 tion. 

18 ‘‘(e) INTERVENTION.—In any action under this section 

19 the Secretary, if not a party, may intervene as a matter 

20 of right. 

21 ‘‘(f) COSTS.—The court, in issuing any final order in 

22 any action brought pursuant to this section, may award 

23 costs of litigation (including reasonable attorney and expert 

24 witness fees) to the prevailing or substantially prevailing 

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1 propriate. The court may, if a temporary restraining order 

2 or preliminary injunction is sought, require the filing of 

3 a bond or equivalent security in accordance with the Fed4 eral Rules of Civil Procedure. 

5 ‘‘(g) OTHER RIGHTS PRESERVED.—Nothing in this 

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

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

8 ‘‘SEC. 2117. ANNUAL REPORT TO CONGRESS. 

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

10 the date of the enactment of this title, annually thereafter 

11 for the next four years, and biennially thereafter, the Sec12 retary shall submit to the Committee on Homeland Security 

13 and the Committee on Energy and Commerce of the House 

14 of Representatives and the Committee on Homeland Secu15 rity and Governmental Affairs and the Committee on Envi16 ronment and Public Works of the Senate a report on 

17 progress in achieving compliance with this title. Each such 

18 report shall include the following: 

19 ‘‘(1) A qualitative discussion of how covered 

20 chemical facilities, differentiated by tier, have reduced 

21 the risks of chemical facility terrorist incidents at 

22 such facilities, including— 

23 ‘‘(A) a generalized summary of measures 

24 implemented by covered chemical facilities in 

25 order to meet each risk-based chemical facility 


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1 performance standard established by this title, 

2 and those that the facilities already had in 

3 place— 

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

5 under this section, before the issuance of the 

6 final rule implementing the regulations 

7 known as the ‘Chemical Facility Anti-Ter8 rorism Standards’, issued on April 9, 2007; 

9 and 

10 ‘‘(ii) in the case of each subsequent re11 port, since the submittal of the most recent 

12 report submitted under this section; and 

13 ‘‘(B) any other generalized summary the 

14 Secretary deems appropriate to describe the 

15 measures covered chemical facilities are imple16 menting to comply with the requirements of this 

17 title. 

18 ‘‘(2) A quantitative summary of how the covered 

19 chemical facilities, differentiated by tier, are com20 plying with the requirements of this title during the 

21 period covered by the report and how the Secretary is 

22 implementing and enforcing such requirements dur23 ing such period, including— 

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

25 provided the Secretary with information about 


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1 possessing substances of concern, as described in 

2 section 2102(b)(2); 

3 ‘‘(B) the number of covered chemical facili4 ties assigned to each tier; 

5 ‘‘(C) the number of security vulnerability 

6 assessments and site security plans submitted by 

7 covered chemical facilities; 

8 ‘‘(D) the number of security vulnerability 

9 assessments and site security plans approved 

10 and disapproved by the Secretary; 

11 ‘‘(E) the number of covered chemical facili12 ties without approved security vulnerability as13 sessments or site security plans; 

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

15 have been assigned to a different tier or are no 

16 longer regulated by the Secretary due to imple17 mentation of a method to reduce the consequences 

18 of a terrorist attack; 

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

20 issued by the Secretary; 

21 ‘‘(H) the administrative penalties assessed 

22 by the Secretary for non-compliance with the re23 quirements of this title; 


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1 ‘‘(I) the civil penalties assessed by the court 

2 for non-compliance with the requirements of this 

3 title; and 

4 ‘‘(J) any other regulatory data the Sec5 retary deems appropriate to describe facility 

6 compliance with the requirements of this title 

7 and the Secretary’s implementation of such re8 quirements. 

9 ‘‘(b) PUBLIC AVAILABILITY.—A report submitted 

10 under this section shall be made publicly available. 

11 ‘‘SEC. 2118. AUTHORIZATION OF APPROPRIATIONS. 

12 ‘‘There is authorized to be appropriated to the Sec13 retary of Homeland Security to carry out this title— 

14 ‘‘(1) $325,000,000 for fiscal year 2011, of which 

15 $100,000,000 shall be made available to provide fund16 ing for methods to reduce the consequences of a ter17 rorist attack; 

18 ‘‘(2) $300,000,000 for fiscal year 2012, of which 

19 $75,000,000 shall be made available to provide fund20 ing for methods to reduce the consequences of a ter21 rorist attack; and 

22 ‘‘(3) $275,000,000 for fiscal year 2013, of which 

23 $50,000,000 shall be made available to provide fund24 ing for methods to reduce the consequences of a ter25 rorist attack. 


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1 ‘‘SEC. 2119. NOTIFICATION SYSTEM TO ADDRESS PUBLIC 

2 CONCERNS. 

3 ‘‘(a) ESTABLISHMENT.—The Secretary shall establish 

4 a notification system, which provides any individual the 

5 ability to report a suspected security deficiency or suspected 

6 non-compliance with this title. Such notification system 

7 shall include the ability to report the suspected security de8 ficiency or non-compliance via telephonic and internet9 based means. 

10 ‘‘(b) ACKNOWLEDGMENT.—The Secretary shall respond 

11 in a timely manner, but in no case exceed 30 days, to any 

12 report received through the notification system established 

13 under subsection (a). 

14 ‘‘(c) STEPS TO ADDRESS PROBLEMS.—The Secretary 

15 shall review the report of suspected security deficiency and 

16 shall, as necessary, take appropriate enforcement action au17 thorized under section 2107 of this title. 

18 ‘‘(d) FEEDBACK REQUIRED.—Upon request, the Sec19 retary shall provide the individual who reported the sus20 pected security deficiency or non-compliance a written re21 sponse as to the Secretary’s findings and what, if any, com22 pliance action was taken. 

23 ‘‘(e) INSPECTOR GENERAL REPORT REQUIRED.—The 

24 Inspector General for the Department of Homeland Secu25 rity shall provide a report to the Committee on Homeland 

26 Security of the House of Representatives and the Committee 


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1 on Homeland Security and Government Affairs of the Sen2 ate on the number of reports received by the notification 

3 system established under subsection (a) and the Secretary’s 

4 disposition of such reports.’’. 

5 (b) CLERICAL AMENDMENT.—The table of contents in 

6 section 1(b) of such Act is amended by adding at the end 

7 the following: 

‘‘TITLE XXI—REGULATION OF SECURITY PRACTICES AT CHEMICAL 

FACILITIES 

‘‘Sec. 2101. Definitions. 

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

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

‘‘Sec. 2104. 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 suits. 

‘‘Sec. 2117. Annual report to Congress. 

‘‘Sec. 2118. Authorization of appropriations. 

‘‘Sec. 2119. Notification system to address public concerns.’’. 

8 (c) CONFORMING REPEAL.— 

9 (1) REPEAL.—The Department of Homeland Se10 curity Appropriations Act, 2007 (Public Law 109– 

11 295) is amended by striking section 550. 

12 (2) EFFECTIVE DATE.—The amendment made by 

13 paragraph (1) shall take effect on October 1, 2009. 

14 (d) TREATMENT OF CFATS REGULATIONS.— 


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1 (1) SENSE OF CONGRESS.—It is the sense of 

2 Congress that the Secretary of Homeland Security 

3 was granted statutory authority under section 550 of 

4 the Department of Homeland Security Appropria5 tions Act (Public Law 109-295) to regulate security 

6 practices at chemical facilities until October 1, 2009. 

7 Pursuant to that section the Secretary prescribed reg8 ulations known as the Chemical Facility Anti-Ter9 rorism Standards, or ‘‘CFATS’’. 

10 (2) USE OF CURRENT REGULATIONS.—In car11 rying out the requirements of title XXI of the Home12 land Security Act of 2002, as added by subsection (a), 

13 the Secretary may, to the extent that the Secretary de14 termines is appropriate, use any of the regulations 

15 known as CFATS regulations, as in effect imme16 diately before the date of the enactment of this Act, 

17 that the Secretary determines carry out such require18 ments. 

19 (3) AMENDMENT OF CFATS.—The Secretary shall 

20 amend the regulations known as the Chemical Facil21 ity Anti-Terrorism Standards to ensure that such reg22 ulations fulfill the requirements of this Act and the 

23 amendments made by this Act, to the extent that the 

24 requirements of this Act and the amendments made 

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1 lations, as in effect on the date of the enactment of 

2 this Act. 

3 (4) USE OF TOOLS DEVELOPED FOR CFATS.—In 

4 carrying out this Act and the amendments made by 

5 this Act, to the extent determined appropriate by the 

6 Secretary, the Secretary may use such rules or tools 

7 developed for purposes of the regulations known as the 

8 Chemical Facility Anti-Terrorism Standards, includ9 ing the list of substances of concern, usually referred 

10 to as ‘‘Appendix A’’ and the chemical security assess11 ment tool (which includes facility registration, a top12 screen questionnaire, a security vulnerability assess13 ment tool, a site security plan template, and a chem14 ical vulnerability information repository). 

15 (e) FACILITIES COVERED BY CFATS.—The owner or 

16 operator of a covered chemical facility, who, before the effec17 tive date of the final regulations issued under title XXI of 

18 the Homeland Security Act of 2002, as added by subsection 

19 (a), submits a security vulnerability assessment or site secu20 rity plan under the regulations known as CFATS regula21 tions, as in effect immediately before the enactment of this 

22 Act, shall be required to update or amend the facility’s secu23 rity vulnerability assessment and site security plan to re24 flect any additional requirements of this Act or the amendVerDate Nov 24 2008 02:50 Oct 24, 2009 Jkt 089200 PO 00000 Frm 00076 Fmt 6652 Sfmt 6203 E:\BILLS\H2868.RH H2868

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1 ments made by this Act, according to a timeline established 

2 by the Secretary. 

3 (f) CONSULTATION WITH OTHER PERSONS.—In devel4 oping and carrying out the regulations under title XXI of 

5 the Homeland Security Act of 2002, as added by subsection 

6 (a), the Secretary shall consult with the Administrator of 

7 the Environmental Protection Agency, and other persons, 

8 as appropriate, regarding— 

9 (1) the designation of substances of concern; 

10 (2) methods to reduce the consequences of a ter11 rorist attack; 

12 (3) security at co-owned or co-operated drinking 

13 water and wastewater facilities; 

14 (4) the treatment of protected information; and 

15 (5) such other matters as the Secretary deter16 mines necessary. 

17 (g) DEADLINE FOR REGULATIONS.— 

18 (1) PROPOSED RULE.—The Secretary of Home19 land Security shall promulgate a proposed rule to ful20 fill the requirements of title XXI of the Homeland Se21 curity Act of 2002, as added by subsection (a), not 

22 later than 6 months after the date of the enactment 

23 of this Act. 

24 (2) FINAL RULE.—The Secretary shall, after 

25 proper notice and opportunity for public comment, 


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1 promulgate a final rule to fulfill the requirements of 

2 such title not later than 18 months after the date of 

3 the enactment of this Act. 

4 (h) REVIEW OF DESIGNATION OF SODIUM

5 FLUOROACETATE AS A SUBSTANCE OF CONCERN.—The Sec6 retary of Homeland Security shall review the designation 

7 of sodium fluoroacetate as a substance of concern pursuant 

8 to subparagraph (A) of paragraph (1) of subsection (d) of 

9 section 2102 of the Homeland Security Act of 2002, as 

10 added by subsection (a), by the earlier of the following dates: 

11 (1) The date of the first periodic review con12 ducted pursuant to such subsection after the date of 

13 the enactment of this Act. 

14 (2) The date that is one year after the date of 

15 the enactment of this Act. 

16 SECTION 1. SHORT TITLE. 

17 This Act may be cited as the ‘‘Chemical 

18 Facility Anti-Terrorism Act of 2009’’. 

19 SEC. 2. FINDINGS AND PURPOSE. 

20 (a) FINDINGS.—Congress makes the fol21 lowing findings: 

22 (1) The Nation’s chemical sector rep23 resents a target that terrorists could ex24 ploit to cause consequences, including 

25 death, injury, or serious adverse effects 


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1 to human health, the environment, crit2 ical infrastructure, public health, home3 land security, national security, and the 

4 national economy. 

5 (2) Chemical facilities that pose such 

6 potential consequences and that are vul7 nerable to terrorist attacks must be pro8 tected. 

9 (3) The Secretary of Homeland Secu10 rity has statutory authority pursuant to 

11 section 550 of the Department of Home12 land Security Appropriations Act, 2007 

13 (Public Law 109–295) to regulate the se14 curity practices at chemical facilities that 

15 are at significant risk of being terrorist 

16 targets. 

17 (4) The Secretary of Homeland Secu18 rity issued interim final regulations 

19 called the Chemical Facility Anti-Ter20 rorism Standards, which became effec21 tive on June 8, 2007. 

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

23 modify and make permanent the authority of 

24 the Secretary of Homeland Security to regu25 late security practices at chemical 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 

6 Act of 2002 (6 U.S.C. 101 et seq.) is amended 

7 by adding at the end the following new title: 

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

11 ‘‘SEC. 2101. DEFINITIONS. 

12 ‘‘In this title, the following definitions 

13 apply: 

14 ‘‘(1) The term ‘chemical facility’ 

15 means any facility— 

16 ‘‘(A) at which the owner or oper17 ator of the facility possesses or plans 

18 to possess at any relevant point in 

19 time a substance of concern; or 

20 ‘‘(B) that meets other risk-related 

21 criteria identified by the Secretary. 

22 ‘‘(2) The term ‘chemical facility secu23 rity performance standards’ means risk24 based standards established by the Sec25 retary to ensure or enhance the security 

26 of a chemical facility against a chemical 


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1 facility terrorist incident that are de2 signed to address the following: 

3 ‘‘(A) Restricting the area perim4 eter. 

5 ‘‘(B) Securing site assets. 

6 ‘‘(C) Screening and controlling ac7 cess to the facility and to restricted 

8 areas within the facility by screening 

9 or inspecting individuals and vehicles 

10 as they enter, including— 

11 ‘‘(i) measures to deter the un12 authorized introduction of dan13 gerous substances and devices 

14 that may facilitate a chemical fa15 cility terrorist incident or actions 

16 having serious negative con17 sequences for the population sur18 rounding the chemical facility; 

19 and 

20 ‘‘(ii) measures implementing a 

21 regularly updated identification 

22 system that checks the identifica23 tion of chemical facility personnel 

24 and other persons seeking access 

25 to the chemical facility and that 


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1 discourages abuse through estab2 lished disciplinary measures. 

3 ‘‘(D) Methods to deter, detect, and 

4 delay a chemical facility terrorist in5 cident, creating sufficient time be6 tween detection of a chemical facility 

7 terrorist incident and the point at 

8 which the chemical facility terrorist 

9 incident becomes successful, includ10 ing measures to— 

11 ‘‘(i) deter vehicles from pene12 trating the chemical facility pe13 rimeter, gaining unauthorized ac14 cess to restricted areas, or other15 wise presenting a hazard to po16 tentially critical targets; 

17 ‘‘(ii) deter chemical facility 

18 terrorist incidents through visi19 ble, professional, well-maintained 

20 security measures and systems, 

21 including security personnel, de22 tection systems, barriers and bar23 ricades, and hardened or reduced 

24 value targets; 


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1 ‘‘(iii) detect chemical facility 

2 terrorist incidents at early stages 

3 through counter surveillance, 

4 frustration of opportunity to ob5 serve potential targets, surveil6 lance and sensing systems, and 

7 barriers and barricades; and 

8 ‘‘(iv) delay a chemical facility 

9 terrorist incident for a sufficient 

10 period of time so as to allow ap11 propriate response through on12 site security response, barriers 

13 and barricades, hardened targets, 

14 and well-coordinated response 

15 planning. 

16 ‘‘(E) Securing and monitoring the 

17 shipping, receipt, and storage of a 

18 substance of concern for the chemical 

19 facility. 

20 ‘‘(F) Deterring theft or diversion 

21 of a substance of concern. 

22 ‘‘(G) Deterring insider sabotage. 

23 ‘‘(H) Deterring cyber sabotage, in24 cluding by preventing unauthorized 

25 onsite or remote access to critical 


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1 process controls, including super2 visory control and data acquisition 

3 systems, distributed control systems, 

4 process control systems, industrial 

5 control systems, critical business sys6 tems, and other sensitive computer7 ized systems. 

8 ‘‘(I) Developing and exercising an 

9 internal emergency plan for owners, 

10 operators, and covered individuals of 

11 a covered chemical facility for re12 sponding to chemical facility terrorist 

13 incidents at the facility. Any such 

14 plan shall include the provision of ap15 propriate information to any local 

16 emergency planning committee, local 

17 law enforcement officials, and emer18 gency response providers to ensure 

19 an effective, collective response to 

20 terrorist incidents. 

21 ‘‘(J) Maintaining effective moni22 toring, communications, and warning 

23 systems, including— 

24 ‘‘(i) measures designed to en25 sure that security systems and 


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1 equipment are in good working 

2 order and inspected, tested, cali3 brated, and otherwise main4 tained; 

5 ‘‘(ii) measures designed to reg6 ularly test security systems, note 

7 deficiencies, correct for detected 

8 deficiencies, and record results so 

9 that they are available for inspec10 tion by the Department; and 

11 ‘‘(iii) measures to allow the 

12 chemical facility to promptly 

13 identify and respond to security 

14 system and equipment failures or 

15 malfunctions. 

16 ‘‘(K) Ensuring mandatory annual 

17 security training, exercises, and drills 

18 of chemical facility personnel appro19 priate to their roles, responsibilities, 

20 and access to chemicals, including 

21 participation by local law enforce22 ment, local emergency response pro23 viders, appropriate supervisory and 

24 non-supervisory facility employees 


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1 and their employee representatives, if 

2 any. 

3 ‘‘(L) Performing personnel surety 

4 for individuals with access to re5 stricted areas or critical assets by 

6 conducting appropriate background 

7 checks and ensuring appropriate cre8 dentials for unescorted visitors and 

9 chemical facility personnel, including 

10 permanent and part-time personnel, 

11 temporary personnel, and contract 

12 personnel, including— 

13 ‘‘(i) measures designed to 

14 verify and validate identity; 

15 ‘‘(ii) measures designed to 

16 check criminal history; 

17 ‘‘(iii) measures designed to 

18 verify and validate legal author19 ization to work; and 

20 ‘‘(iv) measures designed to 

21 identify people with terrorist ties. 

22 ‘‘(M) Escalating the level of pro23 tective measures for periods of ele24 vated threat. 


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1 ‘‘(N) Specific threats, 

2 vulnerabilities, or risks identified by 

3 the Secretary for that chemical facil4 ity. 

5 ‘‘(O) Reporting of significant secu6 rity incidents to the Department and 

7 to appropriate local law enforcement 

8 officials. 

9 ‘‘(P) Identifying, investigating, re10 porting, and maintaining records of 

11 significant security incidents and sus12 picious activities in or near the site. 

13 ‘‘(Q) Establishing one or more of14 ficials and an organization respon15 sible for— 

16 ‘‘(i) security; 

17 ‘‘(ii) compliance with the 

18 standards under this paragraph; 

19 ‘‘(iii) serving as the point of 

20 contact for incident management 

21 purposes with Federal, State, 

22 local, and tribal agencies, law en23 forcement, and emergency re24 sponse providers; and 


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1 ‘‘(iv) coordination with Fed2 eral, State, local, and tribal agen3 cies, law enforcement, and emer4 gency response providers regard5 ing plans and security measures 

6 for the collective response to a 

7 chemical facility terrorist inci8 dent. 

9 ‘‘(R) Maintaining appropriate 

10 records relating to the security of the 

11 facility, including a copy of the most 

12 recent security vulnerability assess13 ment and site security plan at the 

14 chemical facility. 

15 ‘‘(S) Assessing and, as appro16 priate, utilizing methods to reduce 

17 the consequences of a terrorist at18 tack. 

19 ‘‘(T) Methods to recover or miti20 gate the release of a substance of con21 cern in the event of a chemical facil22 ity terrorist incident. 

23 ‘‘(U) Any additional security per24 formance standards the Secretary 

25 may specify. 


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1 ‘‘(3) The term ‘chemical facility ter2 rorist incident’ means any act or at3 tempted act of terrorism or terrorist ac4 tivity committed at, near, or against a 

5 chemical facility, including— 

6 ‘‘(A) the release of a substance of 

7 concern from a chemical facility; 

8 ‘‘(B) the theft, misappropriation, 

9 or misuse of a substance of concern 

10 from a chemical facility; or 

11 ‘‘(C) the sabotage of a chemical fa12 cility or a substance of concern at a 

13 chemical facility. 

14 ‘‘(4) The term ‘employee representa15 tive’ means the representative of the cer16 tified or recognized bargaining agent en17 gaged in a collective bargaining relation18 ship with a private or public owner or 

19 operator of a chemical facility. 

20 ‘‘(5) The term ‘covered individual’ 

21 means a permanent, temporary, full-time, 

22 or part-time employee of a covered chem23 ical facility or an employee of an entity 

24 with which the covered chemical facility 

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1 forming responsibilities at the facility 

2 pursuant to the contract. 

3 ‘‘(6) The term ‘covered chemical facil4 ity’ means a chemical facility that meets 

5 the criteria of section 2102(b)(1). 

6 ‘‘(7) The term ‘environment’ means— 

7 ‘‘(A) the navigable waters, the wa8 ters of the contiguous zone, and the 

9 ocean waters of which the natural re10 sources are under the exclusive man11 agement authority of the United 

12 States under the Magnuson-Stevens 

13 Fishery Conservation and Manage14 ment Act (16 U.S.C. 1801 et seq.); and 

15 ‘‘(B) any other surface water, 

16 ground water, drinking water supply, 

17 land surface or subsurface strata, or 

18 ambient air within the United States 

19 or under the jurisdiction of the 

20 United States. 

21 ‘‘(8) The term ‘owner or operator’ 

22 with respect to a facility means any of 

23 the following: 

24 ‘‘(A) The person who owns the fa25 cility. 


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1 ‘‘(B) The person who has responsi2 bility for daily operation of the facil3 ity. 

4 ‘‘(C) The person who leases the fa5 cility. 

6 ‘‘(9) The term ‘person’ means an indi7 vidual, trust, firm, joint stock company, 

8 corporation (including a government cor9 poration), partnership, association, State, 

10 municipality, commission, political sub11 division of a State, or any interstate body 

12 and shall include each department, agen13 cy, and instrumentality of the United 

14 States. 

15 ‘‘(10) The term ‘release’ means any 

16 spilling, leaking, pumping, pouring, emit17 ting, emptying, discharging, injecting, es18 caping, leaching, dumping, or disposing 

19 into the environment (including the 

20 abandonment or discarding of barrels, 

21 containers, and other closed receptacles 

22 containing any hazardous substance or 

23 pollutant or contaminant). 

24 ‘‘(11) The term ‘substance of concern’ 

25 means a chemical substance in quantity 


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1 and form that is so designated by the Sec2 retary under section 2102(a). 

3 ‘‘(12) The term ‘method to reduce the 

4 consequences of a terrorist attack’ means 

5 a measure used at a chemical facility that 

6 reduces or eliminates the potential con7 sequences of a chemical facility terrorist 

8 incident, including— 

9 ‘‘(A) the elimination or reduction 

10 in the amount of a substance of con11 cern possessed or planned to be pos12 sessed by an owner or operator of a 

13 covered chemical facility through the 

14 use of alternate substances, formula15 tions, or processes; 

16 ‘‘(B) the modification of pressures, 

17 temperatures, or concentrations of a 

18 substance of concern; and 

19 ‘‘(C) the reduction or elimination 

20 of onsite handling of a substance of 

21 concern through improvement of in22 ventory control or chemical use effi23 ciency. 


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

2 CHEMICAL FACILITIES. 

3 ‘‘(a) SUBSTANCES OF CONCERN.— 

4 ‘‘(1) DESIGNATION BY THE SECRETARY.— 

5 The Secretary may designate any chem6 ical substance as a substance of concern 

7 and establish the threshold quantity for 

8 each such substance of concern. 

9 ‘‘(2) MATTERS FOR CONSIDERATION.—In 

10 designating a chemical substance or es11 tablishing or adjusting the threshold 

12 quantity for a chemical substance under 

13 paragraph (1), the Secretary shall con14 sider the potential extent of death, in15 jury, and serious adverse effects to 

16 human health, the environment, critical 

17 infrastructure, public health, homeland 

18 security, national security, and the na19 tional economy that could result from a 

20 chemical facility terrorist incident. 

21 ‘‘(b) LIST OF COVERED CHEMICAL FACILI22 TIES.— 

23 ‘‘(1) CRITERIA FOR LIST OF FACILITIES.— 

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1 rity risk for inclusion on the list based on 

2 the following criteria: 

3 ‘‘(A) The potential threat or likeli4 hood that the chemical facility will be 

5 the target of a chemical facility ter6 rorist incident. 

7 ‘‘(B) The potential extent and like8 lihood of death, injury, or serious ad9 verse effects to human health, the en10 vironment, critical infrastructure, 

11 public health, homeland security, na12 tional security, and the national econ13 omy that could result from a chemical 

14 facility terrorist incident. 

15 ‘‘(C) The proximity of the chem16 ical facility to large population cen17 ters. 

18 ‘‘(2) SUBMISSION OF INFORMATION.—The 

19 Secretary may require the submission of 

20 information with respect to the quan21 tities of substances of concern that an 

22 owner or operator of a chemical facility 

23 possesses or plans to possess in order to 

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1 ical facility as a covered chemical facility 

2 for purposes of this title. 

3 ‘‘(c) ASSIGNMENT OF CHEMICAL FACILITIES

4 TO RISK-BASED TIERS.— 

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

6 assign each covered chemical facility to 

7 one of four risk-based tiers established by 

8 the Secretary, with tier one representing 

9 the highest degree of risk and tier four 

10 the lowest degree of risk. 

11 ‘‘(2) PROVISION OF INFORMATION.—The 

12 Secretary may request, and the owner or 

13 operator of a covered chemical facility 

14 shall provide, any additional information 

15 beyond any information required to be 

16 submitted under subsection (b)(2) that 

17 may be necessary for the Secretary to as18 sign the chemical facility to the appro19 priate tier under paragraph (1). 

20 ‘‘(3) NOTIFICATION.—Not later than 60 

21 days after the date on which the Sec22 retary determines that a chemical facility 

23 is a covered chemical facility or is no 

24 longer a covered chemical facility or 

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1 graph (1) of a covered chemical facility, 

2 the Secretary shall notify the owner or 

3 operator of that chemical facility of that 

4 determination or change together with 

5 the reason for the determination or 

6 change and, upon the request of the 

7 owner or operator of a covered chemical 

8 facility, provide to the owner or operator 

9 of the covered chemical facility the fol10 lowing information: 

11 ‘‘(A) The number of individuals at 

12 risk of death, injury, or severe ad13 verse effects to human health as a re14 sult of a worst case chemical facility 

15 terrorist incident at the covered 

16 chemical facility. 

17 ‘‘(B) Information related to the 

18 criticality of the covered chemical fa19 cility. 

20 ‘‘(C) The proximity or inter21 relationship of the covered chemical 

22 facility to other critical infrastruc23 ture. 

24 ‘‘(d) REQUIREMENT FOR REVIEW.—The Sec25 retary— 


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1 ‘‘(1) shall periodically review— 

2 ‘‘(A) the designation of a sub3 stance of concern and the threshold 

4 quantity under subsection (a)(1); and 

5 ‘‘(B) the criteria under subsection 

6 (b)(1); and 

7 ‘‘(2) may at any time determine 

8 whether a chemical facility is a covered 

9 chemical facility or change the tier to 

10 which such a facility is assigned under 

11 subsection (c)(1). 

12 ‘‘(e) PROVISION OF THREAT-RELATED INFOR13 MATION.—In order to effectively assess the 

14 vulnerabilities to a covered chemical facility, 

15 the Secretary shall provide to the owner, op16 erator, or security officer of a covered chem17 ical facility threat information regarding 

18 probable threats to the facility and methods 

19 that could be used in a chemical facility ter20 rorist incident. 

21 ‘‘SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND 

22 SITE SECURITY PLANS. 

23 ‘‘(a) IN GENERAL.— 

24 ‘‘(1) REQUIREMENT.—The Secretary 

25 shall— 


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1 ‘‘(A) establish standards, proto2 cols, and procedures for security vul3 nerability assessments and site secu4 rity plans to be required for covered 

5 chemical facilities; 

6 ‘‘(B) require the owner or oper7 ator of each covered chemical facility 

8 to— 

9 ‘‘(i) conduct an assessment of 

10 the vulnerability of the covered 

11 chemical facility to a range of 

12 chemical facility terrorist inci13 dents, including an incident that 

14 results in a worst-case release of 

15 a substance of concern; 

16 ‘‘(ii) prepare, submit, and im17 plement a site security plan for 

18 that covered chemical facility 

19 that addresses the security vul20 nerability assessment and meets 

21 the risk-based chemical security 

22 performance standards under 

23 subsection (c); and 

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1 pervisory employee of the cov2 ered chemical facility, and at 

3 least one employee representa4 tive, from each bargaining agent 

5 at the covered chemical facility, if 

6 any, in developing the security 

7 vulnerability assessment and site 

8 security plan required under this 

9 section; 

10 ‘‘(C) set deadlines, by tier, for the 

11 completion of security vulnerability 

12 assessments and site security plans; 

13 ‘‘(D) upon request, as necessary, 

14 and to the extent that resources per15 mit, provide technical assistance to a 

16 covered chemical facility conducting 

17 a vulnerability assessment or site se18 curity plan required under this sec19 tion; 

20 ‘‘(E) establish specific deadlines 

21 and requirements for the submission 

22 by a covered chemical facility of in23 formation describing— 

24 ‘‘(i) any change in the use by 

25 the covered chemical facility of 


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1 more than a threshold amount of 

2 any substance of concern that 

3 may affect the requirements of 

4 the chemical facility under this 

5 title; or 

6 ‘‘(ii) any material modification 

7 to a covered chemical facility’s 

8 operations or site that may affect 

9 the security vulnerability assess10 ment or site security plan sub11 mitted by the covered chemical 

12 facility; 

13 ‘‘(F) require the owner or oper14 ator of a covered chemical facility to 

15 review and resubmit a security vul16 nerability assessment or site security 

17 plan not less frequently than once 

18 every 5 years; and 

19 ‘‘(G) not later than 180 days after 

20 the date on which the Secretary re21 ceives a security vulnerability assess22 ment or site security plan under this 

23 title, review and approve or dis24 approve such assessment or plan. 


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1 ‘‘(2) INHERENTLY GOVERNMENTAL FUNC2 TION.—The approval or disapproval of a 

3 security vulnerability assessment or site 

4 security plan under this section is an in5 herently governmental function. 

6 ‘‘(b) PARTICIPATION IN PREPARATION OF SE7 CURITY VULNERABILITY ASSESSMENTS OR SITE

8 SECURITY PLANS.—Any person selected by the 

9 owner or operator of a covered chemical facil10 ity or by a certified or recognized bargaining 

11 agent of a covered chemical facility to partici12 pate in the development of the security vul13 nerability assessment or site security plan re14 quired under this section for such covered 

15 chemical facility shall be permitted to partici16 pate if the person possesses knowledge, expe17 rience, training, or education relevant to the 

18 portion of the security vulnerability assess19 ment or site security plan on which the per20 son is participating. 

21 ‘‘(c) RISK-BASED CHEMICAL SECURITY PER22 FORMANCE STANDARDS.—The Secretary shall 

23 establish risk-based chemical security per24 formance standards for the site security plans 

25 required to be prepared by covered chemical 


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1 facilities. In establishing such standards, the 

2 Secretary shall— 

3 ‘‘(1) require separate and, as appro4 priate, increasingly stringent risk-based 

5 chemical security performance standards 

6 for site security plans as the level of risk 

7 associated with the tier increases; and 

8 ‘‘(2) permit each covered chemical fa9 cility submitting a site security plan to 

10 select a combination of security measures 

11 that satisfy the risk-based chemical secu12 rity performance standards established 

13 by the Secretary under this subsection. 

14 ‘‘(d) CO-LOCATED CHEMICAL FACILITIES.— 

15 The Secretary may allow an owner or oper16 ator of a covered chemical facility that is lo17 cated geographically close to another covered 

18 chemical facility to develop and implement 

19 coordinated security vulnerability assess20 ments and site security plans. 

21 ‘‘(e) ALTERNATE SECURITY PROGRAMS SATIS22 FYING REQUIREMENTS FOR SECURITY VULNER23 ABILITY ASSESSMENT AND SITE SECURITY PLAN.— 

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1 ator of a covered chemical facility, the 

2 Secretary may accept an alternate secu3 rity program submitted by the owner or 

4 operator of the facility as a component of 

5 the security vulnerability assessment or 

6 site security plan required under this 

7 section, if the Secretary determines that 

8 such alternate security program, in com9 bination with other components of the se10 curity vulnerability assessment and site 

11 security plan submitted by the owner or 

12 operator of the facility— 

13 ‘‘(A) meets the requirements of 

14 this title and the regulations promul15 gated pursuant to this title; 

16 ‘‘(B) provides an equivalent level 

17 of security to the level of security es18 tablished pursuant to the regulations 

19 promulgated under this title; and 

20 ‘‘(C) includes employee participa21 tion as required under subsection 

22 (a)(1)(B)(iii). 

23 ‘‘(2) SECRETARIAL REVIEW REQUIRED.— 

24 Nothing in this subsection shall relieve 

25 the Secretary of the obligation— 


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1 ‘‘(A) to review a security vulner2 ability assessment and site security 

3 plan submitted by a covered chemical 

4 facility under this section; and 

5 ‘‘(B) to approve or disapprove 

6 each such assessment or plan on an 

7 individual basis according to the 

8 deadlines established under sub9 section (a). 

10 ‘‘(3) COVERED FACILITY’S OBLIGATIONS

11 UNAFFECTED.—Nothing in this subsection 

12 shall relieve any covered chemical facil13 ity of the obligation and responsibility to 

14 comply with all of the requirements of 

15 this title. 

16 ‘‘(4) PERSONNEL SURETY ALTERNATE SE17 CURITY PROGRAM.—In response to an ap18 plication from a non-profit, personnel 

19 surety accrediting organization acting on 

20 behalf of, and with written authorization 

21 from, the owner or operator of a covered 

22 chemical facility, the Secretary may ac23 cept a personnel surety alternate security 

24 program that meets the requirements of 


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1 section 2115 and provides for a back2 ground check process that is— 

3 ‘‘(A) expedited, affordable, reli4 able, and accurate; 

5 ‘‘(B) fully protective of the rights 

6 of covered individuals through proce7 dures that are consistent with the 

8 privacy protections available under 

9 the Fair Credit Reporting Act (15 

10 U.S.C. 1681 et seq.); and 

11 ‘‘(C) is a single background check 

12 consistent with a risk-based tiered 

13 program. 

14 ‘‘(f) OTHER AUTHORITIES.— 

15 ‘‘(1) REGULATION OF MARITIME FACILI16 TIES.— 

17 ‘‘(A) RISK-BASED TIERING.—Not18 withstanding any other provision of 

19 law, the owner or operator of a chem20 ical facility required to submit a facil21 ity security plan under section 

22 70103(c) of title 46, United States 

23 Code, shall be required to submit in24 formation to the Secretary necessary 

25 to determine whether to designate 


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1 such a facility as a covered chemical 

2 facility and to assign the facility to a 

3 risk-based tier under section 2102 of 

4 this title. 

5 ‘‘(B) ADDITIONAL MEASURES.—In 

6 the case of a facility designated as a 

7 covered chemical facility under this 

8 title that is also regulated under sec9 tion 70103(c) of title 46, United States 

10 Code, the Commandant of the Coast 

11 Guard, after consultation with the 

12 Secretary, shall require the owner or 

13 operator of such facility to update the 

14 vulnerability assessments and facility 

15 security plans required under that 

16 section, if necessary, to ensure an 

17 equivalent level of security for sub18 stances of concern, including the re19 quirements under section 2111, in the 

20 same manner as other covered chem21 ical facilities in this title. 

22 ‘‘(C) PERSONNEL SURETY.— 

23 ‘‘(i) EXCEPTION.—A facility des24 ignated as a covered chemical fa25 cility under this title that has had 


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1 its facility security plan approved 

2 under section 70103(c) of title 46, 

3 United States Code, shall not be 

4 required to update or amend such 

5 plan in order to meet the require6 ments of section 2115 of this title. 

7 ‘‘(ii) EQUIVALENT ACCESS.—An 

8 individual described in section 

9 2115(a)(1)(B) who has been grant10 ed access to restricted areas or 

11 critical assets by the owner or op12 erator of a facility for which a se13 curity plan is required to be sub14 mitted under section 70103(c) of 

15 title 46, United States Code, may 

16 be considered by that owner or 

17 operator to have satisfied the re18 quirement for passing a security 

19 background check otherwise re20 quired under section 2115 for pur21 poses of granting the individual 

22 access to restricted areas or crit23 ical assets of a covered chemical 

24 facility that is owned or operated 

25 by the same owner or operator. 


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1 ‘‘(D) INFORMATION SHARING AND

2 PROTECTION.—Notwithstanding sec3 tion 70103(d) of title 46, United States 

4 Code, the Commandant of the Coast 

5 Guard, after consultation with the 

6 Secretary, shall apply the information 

7 sharing and protection requirements 

8 in section 2110 of this title to a facil9 ity described in subparagraph (B). 

10 ‘‘(E) ENFORCEMENT.—The Sec11 retary shall establish, by rulemaking, 

12 procedures to ensure that an owner 

13 or operator of a covered chemical fa14 cility required to update the vulner15 ability assessment and facility secu16 rity plan for the facility under sub17 paragraph (B) is in compliance with 

18 the requirements of this title. 

19 ‘‘(F) FORMAL AGREEMENT.—The 

20 Secretary shall require the Office of 

21 Infrastructure Protection and the 

22 Coast Guard to enter into a formal 

23 agreement detailing their respective 

24 roles and responsibilities in carrying 

25 out the requirements of this title. 


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1 Such agreement shall ensure that the 

2 enforcement and compliance require3 ments under this title and section 

4 70103 of title 46, United States Code, 

5 are not conflicting or duplicative. 

6 ‘‘(2) COORDINATION OF STORAGE LICENS7 ING OR PERMITTING REQUIREMENT.—In the 

8 case of any storage required to be li9 censed or permitted under chapter 40 of 

10 title 18, United States Code, the Secretary 

11 shall prescribe the rules and regulations 

12 for the implementation of this section 

13 with the concurrence of the Attorney 

14 General and avoid unnecessary duplica15 tion of regulatory requirements. 

16 ‘‘(g) ROLE OF EMPLOYEES.— 

17 ‘‘(1) DESCRIPTION OF ROLE REQUIRED.— 

18 Site security plans required under this 

19 section shall describe the roles or respon20 sibilities that covered individuals are ex21 pected to perform to deter or respond to 

22 a chemical facility terrorist incident. 

23 ‘‘(2) ANNUAL TRAINING FOR EMPLOY24 EES.—The owner or operator of a covered 

25 chemical facility required to submit a site 


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1 security plan under this section shall an2 nually provide each covered individual 

3 with a role or responsibility referred to 

4 in paragraph (1) at the facility with a 

5 minimum of 8 hours of training. Such 

6 training shall, as relevant to the role or 

7 responsibility of such covered indi8 vidual— 

9 ‘‘(A) include an identification and 

10 discussion of substances of concern; 

11 ‘‘(B) include a discussion of pos12 sible consequences of a chemical fa13 cility terrorist incident; 

14 ‘‘(C) review and exercise the cov15 ered chemical facility’s site security 

16 plan, including any requirements for 

17 differing threat levels; 

18 ‘‘(D) include a review of informa19 tion protection requirements; 

20 ‘‘(E) include a discussion of phys21 ical and cyber security equipment, 

22 systems, and methods used to achieve 

23 chemical security performance stand24 ards; 


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1 ‘‘(F) allow training with other rel2 evant participants, including Federal, 

3 State, local, and tribal authorities, 

4 and first responders, where appro5 priate; 

6 ‘‘(G) use existing national vol7 untary consensus standards, chosen 

8 jointly with employee representa9 tives, if any; 

10 ‘‘(H) allow instruction through 

11 government training programs, chem12 ical facilities, academic institutions, 

13 nonprofit organizations, industry and 

14 private organizations, employee orga15 nizations, and other relevant entities 

16 that provide such training; 

17 ‘‘(I) use multiple training media 

18 and methods; and 

19 ‘‘(J) include a discussion of appro20 priate emergency response proce21 dures, including procedures to miti22 gate the effects of a chemical facility 

23 terrorist incident. 

24 ‘‘(3) EQUIVALENT TRAINING.—During 

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1 dividual with roles or responsibilities 

2 under paragraph (1), an owner or oper3 ator of a covered chemical facility may 

4 satisfy any of the training requirements 

5 for such covered individual under sub6 paragraphs (A), (B), (C), (D), (E), or (J) of 

7 paragraph (2) through training that such 

8 owner or operator certifies, in a manner 

9 prescribed by the Secretary, as equiva10 lent. 

11 ‘‘(4) WORKER TRAINING GRANT PRO12 GRAM.— 

13 ‘‘(A) AUTHORITY.—The Secretary 

14 shall establish a grant program to 

15 award grants to or enter into cooper16 ative agreements with eligible enti17 ties to provide for the training and 

18 education of covered individuals with 

19 roles or responsibilities described in 

20 paragraph (1) and first responders 

21 and emergency response providers 

22 that would respond to a chemical fa23 cility terrorist incident. 

24 ‘‘(B) ADMINISTRATION.—The Sec25 retary shall seek to enter into an 


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1 agreement with the National Institute 

2 for Environmental Health Sciences to 

3 make and administer grants or coop4 erative agreements under this para5 graph. 

6 ‘‘(C) USE OF FUNDS.—The recipient 

7 of funds under this paragraph shall 

8 use such funds to provide for the 

9 training and education of covered in10 dividuals with roles or responsibil11 ities described in paragraph (1), first 

12 responders, and emergency response 

13 providers, including— 

14 ‘‘(i) the annual mandatory 

15 training specified in paragraph 

16 (2); and 

17 ‘‘(ii) other appropriate train18 ing to protect nearby persons, 

19 property, critical infrastructure, 

20 or the environment from the ef21 fects of a chemical facility ter22 rorist incident. 

23 ‘‘(D) ELIGIBLE ENTITIES.—For pur24 poses of this paragraph, an eligible 

25 entity is a nonprofit organization 


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1 with demonstrated experience in im2 plementing and operating successful 

3 worker or first responder health and 

4 safety or security training programs. 

5 ‘‘(h) STATE, REGIONAL, OR LOCAL GOVERN6 MENTAL ENTITIES.—No covered chemical facil7 ity shall be required under State, local, or 

8 tribal law to provide a vulnerability assess9 ment or site security plan described under 

10 this title to any State, regional, local, or tribal 

11 government entity solely by reason of the re12 quirement under subsection (a) that the cov13 ered chemical facility submit such an assess14 ment and plan to the Secretary. 

15 ‘‘SEC. 2104. SITE INSPECTIONS. 

16 ‘‘(a) RIGHT OF ENTRY.—For purposes of car17 rying out this title, the Secretary shall have, 

18 at a reasonable time and on presentation of 

19 credentials, a right of entry to, on, or through 

20 any property of a covered chemical facility or 

21 any property on which any record required to 

22 be maintained under this section is located. 

23 ‘‘(b) INSPECTIONS AND VERIFICATIONS.— 

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

25 at such time and place as the Secretary 


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1 determines to be reasonable and appro2 priate, conduct chemical facility security 

3 inspections and verifications. 

4 ‘‘(2) REQUIREMENTS.—To ensure and 

5 evaluate compliance with this title, in6 cluding any regulations or requirements 

7 adopted by the Secretary in furtherance 

8 of the purposes of this title, in con9 ducting an inspection or verification 

10 under paragraph (1), the Secretary shall 

11 have access to the owners, operators, em12 ployees, and employee representatives, if 

13 any, of a covered chemical facility. 

14 ‘‘(c) UNANNOUNCED INSPECTIONS.—In addi15 tion to any inspection conducted pursuant to 

16 subsection (b), the Secretary shall require 

17 covered chemical facilities assigned to tier 1 

18 and tier 2 under section 2102(c)(1) to undergo 

19 unannounced facility inspections. The inspec20 tions required under this subsection shall 

21 be— 

22 ‘‘(1) conducted without prior notice to 

23 the facility; 

24 ‘‘(2) designed to evaluate at the chem25 ical facility undergoing inspection— 


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1 ‘‘(A) the ability of the chemical fa2 cility to prevent a chemical facility 

3 terrorist incident that the site secu4 rity plan of the facility is intended to 

5 prevent; 

6 ‘‘(B) the ability of the chemical fa7 cility to protect against security 

8 threats that are required to be ad9 dressed by the site security plan of 

10 the facility; and 

11 ‘‘(C) any weaknesses in the site 

12 security plan of the chemical facility; 

13 ‘‘(3) conducted so as not to affect the 

14 actual security, physical integrity, safety, 

15 or regular operations of the chemical fa16 cility or its employees while the inspec17 tion is conducted; and 

18 ‘‘(4) conducted— 

19 ‘‘(A) every two years in the case of 

20 a covered chemical facility assigned 

21 to tier 1; and 

22 ‘‘(B) every four years in the case 

23 of a covered chemical facility as24 signed to tier 2. 


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1 ‘‘(d) CHEMICAL FACILITY INSPECTORS AU2 THORIZED.—During the period of fiscal years 

3 2011 and 2012, subject to the availability of 

4 appropriations for such purpose, the Sec5 retary shall increase by not fewer than 100 

6 the total number of chemical facility inspec7 tors within the Department to ensure compli8 ance with this title. 

9 ‘‘(e) CONFIDENTIAL COMMUNICATIONS.—The 

10 Secretary shall offer non-supervisory employ11 ees the opportunity to confidentially commu12 nicate information relevant to the employer’s 

13 compliance or non-compliance with this title, 

14 including compliance or non-compliance with 

15 any regulation or requirement adopted by the 

16 Secretary in furtherance of the purposes of 

17 this title. An employee representative of each 

18 certified or recognized bargaining agent at 

19 the covered chemical facility, if any, or, if 

20 none, a non-supervisory employee, shall be 

21 given the opportunity to accompany the Sec22 retary during a physical inspection of such 

23 covered chemical facility for the purpose of 

24 aiding in such inspection, if representatives 

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1 ical facility will also be accompanying the 

2 Secretary on such inspection. 

3 ‘‘SEC. 2105. RECORDS. 

4 ‘‘(a) REQUEST FOR RECORDS.—In carrying 

5 out this title, the Secretary may require sub6 mission of, or on presentation of credentials 

7 may at reasonable times obtain access to and 

8 copy, any records, including any records 

9 maintained in electronic format, necessary 

10 for— 

11 ‘‘(1) reviewing or analyzing a security 

12 vulnerability assessment or site security 

13 plan submitted under section 2103; or 

14 ‘‘(2) assessing the implementation of 

15 such a site security plan. 

16 ‘‘(b) PROPER HANDLING OF RECORDS.—In 

17 accessing or copying any records under sub18 section (a), the Secretary shall ensure that 

19 such records are handled and secured appro20 priately in accordance with section 2110. 

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

22 ‘‘(a) RESPONSIBILITIES OF SECRETARY.— 

23 Upon the receipt of information concerning a 

24 threat that is relevant to a certain covered 

25 chemical facility, the Secretary shall provide 


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1 such information in a timely manner, to the 

2 maximum extent practicable under applicable 

3 authority and in the interests of national se4 curity, to the owner, operator, or security offi5 cer of that covered chemical facility and to a 

6 representative of each recognized or certified 

7 bargaining agent at the facility, if any. 

8 ‘‘(b) RESPONSIBILITIES OF OWNER OR OPER9 ATOR.—The Secretary shall require the owner 

10 or operator of a covered chemical facility to 

11 provide information concerning a threat in a 

12 timely manner about any significant security 

13 incident or threat to the covered chemical fa14 cility or any intentional or unauthorized pen15 etration of the physical security or cyber se16 curity of the covered chemical facility wheth17 er successful or unsuccessful. 

18 ‘‘SEC. 2107. ENFORCEMENT. 

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

20 ‘‘(1) DISAPPROVAL.—The Secretary 

21 shall disapprove a security vulnerability 

22 assessment or site security plan sub23 mitted under this title if the Secretary 

24 determines, in his or her discretion, 

25 that— 


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1 ‘‘(A) the security vulnerability as2 sessment or site security plan does 

3 not comply with the standards, proto4 cols, or procedures under section 

5 2103(a)(1)(A); or 

6 ‘‘(B) in the case of a site security 

7 plan— 

8 ‘‘(i) the plan or the implemen9 tation of the plan is insufficient 

10 to address vulnerabilities identi11 fied in a security vulnerability as12 sessment, site inspection, or un13 announced inspection of the cov14 ered chemical facility; or 

15 ‘‘(ii) the plan fails to meet all 

16 applicable chemical facility secu17 rity performance standards. 

18 ‘‘(2) PROVISION OF NOTIFICATION OF DIS19 APPROVAL.—If the Secretary disapproves 

20 the security vulnerability assessment or 

21 site security plan submitted by a covered 

22 chemical facility under this title or the 

23 implementation of a site security plan by 

24 such a chemical facility, the Secretary 

25 shall provide the owner or operator of 


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1 the covered chemical facility a written 

2 notification of the disapproval within 14 

3 days of the date on which the Secretary 

4 disapproves such assessment or plan, 

5 that— 

6 ‘‘(A) includes a clear explanation 

7 of deficiencies in the assessment, 

8 plan, or implementation of the plan; 

9 and 

10 ‘‘(B) requires the owner or oper11 ator of the covered chemical facility 

12 to revise the assessment or plan to 

13 address any deficiencies and, by such 

14 date as the Secretary determines is 

15 appropriate, to submit to the Sec16 retary the revised assessment or plan. 

17 ‘‘(3) ORDER FOR COMPLIANCE.—When18 ever the Secretary determines that the 

19 owner or operator of a covered chemical 

20 facility has violated or is in violation of 

21 any requirement of this title or has failed 

22 or is failing to address any deficiencies in 

23 the assessment, plan, or implementation 

24 of the plan by such date as the Secretary 


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1 determines to be appropriate, the Sec2 retary may— 

3 ‘‘(A) after providing notice to the 

4 owner or operator of the covered 

5 chemical facility and an opportunity 

6 for such owner or operator to appeal 

7 the Secretary’s determination, issue 

8 an order assessing a civil penalty for 

9 any past or current violation, requir10 ing compliance immediately or within 

11 a specified time period, or both; or 

12 ‘‘(B) commence a civil action in 

13 the United States district court in the 

14 district in which the violation oc15 curred for appropriate relief, includ16 ing temporary or permanent injunc17 tion. 

18 ‘‘(4) ORDER TO CEASE OPERATIONS.—If 

19 the Secretary determines that the owner 

20 or operator of a covered chemical facility 

21 continues to be in noncompliance after 

22 an order for compliance is issued under 

23 paragraph (3), the Secretary may issue an 

24 order to the owner or operator of a cov25 ered chemical facility to cease operations 


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1 at the facility until the owner or operator 

2 complies with such order issued under 

3 paragraph (3). Notwithstanding the pre4 ceding sentence, the Secretary may not 

5 issue an order to cease operations under 

6 this paragraph to the owner or operator 

7 of a wastewater facility. 

8 ‘‘(b) PENALTIES.— 

9 ‘‘(1) CIVIL PENALTIES.—A court may 

10 award a civil penalty, pursuant to an 

11 order issued by the Secretary under this 

12 title, of not more than $50,000 for each 

13 day on which a violation occurs or a fail14 ure to comply continues. 

15 ‘‘(2) ADMINISTRATIVE PENALTIES.—The 

16 Secretary may award an administrative 

17 penalty, pursuant to an order issued 

18 under this title, of not more than $25,000 

19 for each day on which a violation occurs 

20 or a failure to comply continues. 

21 ‘‘SEC. 2108. WHISTLEBLOWER PROTECTIONS. 

22 ‘‘(a) ESTABLISHMENT.—The Secretary shall 

23 establish and provide information to the pub24 lic regarding a process by which any person 

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1 ing problems, deficiencies, or vulnerabilities 

2 at a covered chemical facility associated with 

3 the risk of a chemical facility terrorist inci4 dent. 

5 ‘‘(b) CONFIDENTIALITY.—The Secretary 

6 shall keep confidential the identity of a per7 son that submits a report under subsection (a) 

8 and any such report shall be treated as pro9 tected information under section 2110 to the 

10 extent that it does not consist of publicly 

11 available information. 

12 ‘‘(c) ACKNOWLEDGMENT OF RECEIPT.—If a 

13 report submitted under subsection (a) identi14 fies the person submitting the report, the Sec15 retary shall respond promptly to such person 

16 to acknowledge receipt of the report. 

17 ‘‘(d) STEPS TO ADDRESS PROBLEMS.—The 

18 Secretary shall review and consider the infor19 mation provided in any report submitted 

20 under subsection (a) and shall, as necessary, 

21 take appropriate steps under this title to ad22 dress any problem, deficiency, or vulner23 ability identified in the report. 

24 ‘‘(e) RETALIATION PROHIBITED.— 


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1 ‘‘(1) PROHIBITION.—No owner or oper2 ator of a covered chemical facility, profit 

3 or not-for-profit corporation, association, 

4 or any contractor, subcontractor or agent 

5 thereof, may discharge any employee or 

6 otherwise discriminate against any em7 ployee with respect to his compensation, 

8 terms, conditions, or other privileges of 

9 employment because the employee (or 

10 any person acting pursuant to a request 

11 of the employee)— 

12 ‘‘(A) notified the Secretary, the 

13 owner or operator of a covered chem14 ical facility, or the employee’s em15 ployer of an alleged violation of this 

16 title, including communications re17 lated to carrying out the employee’s 

18 job duties; 

19 ‘‘(B) refused to engage in any 

20 practice made unlawful by this title, 

21 if the employee has identified the al22 leged illegality to the employer; 

23 ‘‘(C) testified before or otherwise 

24 provided information relevant for 

25 Congress or for any Federal or State 


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1 proceeding regarding any provision 

2 (or proposed provision) of this title; 

3 ‘‘(D) commenced, caused to be 

4 commenced, or is about to commence 

5 or cause to be commenced a pro6 ceeding under this title; 

7 ‘‘(E) testified or is about to testify 

8 in any such proceeding; or 

9 ‘‘(F) assisted or participated or is 

10 about to assist or participate in any 

11 manner in such a proceeding or in 

12 any other manner in such a pro13 ceeding or in any other action to 

14 carry out the purposes of this title. 

15 ‘‘(2) ENFORCEMENT ACTION.—Any em16 ployee covered by this section who al17 leges discrimination by an employer in 

18 violation of paragraph (1) may bring an 

19 action governed by the rules and proce20 dures, legal burdens of proof, and rem21 edies applicable under subsections (d) 

22 through (h) of section 20109 of title 49, 

23 United States Code. A party may seek dis24 trict court review as set forth in sub25 section (d)(4) of such section not later 


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1 than 90 days after receiving a written 

2 final determination by the Secretary of 

3 Labor. 

4 ‘‘(3) PROHIBITED PERSONNEL PRACTICES

5 AFFECTING THE DEPARTMENT.— 

6 ‘‘(A) IN GENERAL.—Notwith7 standing any other provision of law, 

8 any individual holding or applying 

9 for a position within the Department 

10 shall be covered by— 

11 ‘‘(i) paragraphs (1), (8), and (9) 

12 of section 2302(b) of title 5, United 

13 States Code; 

14 ‘‘(ii) any provision of law im15 plementing any of such para16 graphs by providing any right or 

17 remedy available to an employee 

18 or applicant for employment in 

19 the civil service; and 

20 ‘‘(iii) any rule or regulation 

21 prescribed under any such para22 graph. 

23 ‘‘(B) RULE OF CONSTRUCTION.— 

24 Nothing in this paragraph shall be 

25 construed to affect any rights, apart 


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1 from those referred to in subpara2 graph (A), to which an individual de3 scribed in that subparagraph might 

4 otherwise be entitled to under law. 

5 ‘‘SEC. 2109. FEDERAL PREEMPTION. 

6 ‘‘This title does not preclude or deny any 

7 right of any State or political subdivision 

8 thereof to adopt or enforce any regulation, re9 quirement, or standard of performance with 

10 respect to a covered chemical facility that is 

11 more stringent than a regulation, require12 ment, or standard of performance issued 

13 under this title, or otherwise impair any right 

14 or jurisdiction of any State or political sub15 division thereof with respect to covered 

16 chemical facilities within that State or polit17 ical subdivision thereof. 

18 ‘‘SEC. 2110. PROTECTION OF INFORMATION. 

19 ‘‘(a) PROHIBITION OF PUBLIC DISCLOSURE OF

20 PROTECTED INFORMATION.—Protected informa21 tion, as described in subsection (g)— 

22 ‘‘(1) shall be exempt from disclosure 

23 under section 552 of title 5, United States 

24 Code; and 


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1 ‘‘(2) shall not be made available pur2 suant to any State, local, or tribal law re3 quiring disclosure of information or 

4 records. 

5 ‘‘(b) INFORMATION SHARING.— 

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

7 prescribe such regulations, and may issue 

8 such orders, as necessary to prohibit the 

9 unauthorized disclosure of protected in10 formation, as described in subsection (g). 

11 ‘‘(2) SHARING OF PROTECTED INFORMA12 TION.—The regulations under paragraph 

13 (1) shall provide standards for and facili14 tate the appropriate sharing of protected 

15 information with and between Federal, 

16 State, local, and tribal authorities, emer17 gency response providers, law enforce18 ment officials, designated supervisory 

19 and nonsupervisory covered chemical fa20 cility personnel with security, oper21 ational, or fiduciary responsibility for the 

22 facility, and designated facility employee 

23 representatives, if any. Such standards 

24 shall include procedures for the sharing 

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1 cility’s vulnerability assessment and site 

2 security plan relating to the roles and re3 sponsibilities of covered individuals 

4 under section 2103(g)(1) with a represent5 ative of each certified or recognized bar6 gaining agent representing such covered 

7 individuals, if any, or, if none, with at 

8 least one supervisory and at least one 

9 non-supervisory employee with roles or 

10 responsibilities under section 2103(g)(1). 

11 ‘‘(3) PENALTIES.—Protected informa12 tion, as described in subsection (g), shall 

13 not be shared except in accordance with 

14 the regulations under paragraph (1). Any 

15 person who purposefully publishes, di16 vulges, discloses, or makes known pro17 tected information in any manner or to 

18 any extent not authorized by the stand19 ards provided by the regulations under 

20 paragraph (1), shall, upon conviction, be 

21 imprisoned for not more than one year or 

22 fined in accordance with the provisions 

23 of chapter 227 of title 18, United States 

24 Code, applicable to class A mis25 demeanors, or both, and, in the case of 


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1 Federal employees or officeholders, shall 

2 be removed from Federal office or em3 ployment. 

4 ‘‘(c) TREATMENT OF INFORMATION IN ADJU5 DICATIVE PROCEEDINGS.—In any judicial or ad6 ministrative proceeding, protected informa7 tion described in subsection (g) shall be treat8 ed in a manner consistent with the treatment 

9 of sensitive security information under sec10 tion 525 of the Department of Homeland Secu11 rity Appropriations Act, 2007 (Public Law 

12 109–295; 120 Stat. 1381). 

13 ‘‘(d) OTHER OBLIGATIONS UNAFFECTED.—Ex14 cept as provided in section 2103(h), nothing in 

15 this section affects any obligation of the 

16 owner or operator of a chemical facility under 

17 any other law to submit or make available in18 formation required by such other law to facil19 ity employees, employee organizations, or a 

20 Federal, State, tribal, or local government. 

21 ‘‘(e) SUBMISSION OF INFORMATION TO CON22 GRESS.—Nothing in this title shall permit or 

23 authorize the withholding of information 

24 from Congress or any committee or sub25 committee thereof. 


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1 ‘‘(f) DISCLOSURE OF INDEPENDENTLY FUR2 NISHED INFORMATION.—Nothing in this title 

3 shall affect any authority or obligation of a 

4 Federal, State, local, or tribal government 

5 agency to protect or disclose any record or in6 formation that the Federal, State, local, or 

7 tribal government agency obtains from a 

8 chemical facility under any other law. 

9 ‘‘(g) PROTECTED INFORMATION.— 

10 ‘‘(1) IN GENERAL.—For purposes of this 

11 title, protected information is the fol12 lowing: 

13 ‘‘(A) Security vulnerability assess14 ments and site security plans, includ15 ing any assessment required under 

16 section 2111. 

17 ‘‘(B) Portions of the following doc18 uments, records, orders, notices, or 

19 letters that the Secretary determines 

20 would be detrimental to chemical fa21 cility security if disclosed and that 

22 are developed by the Secretary or the 

23 owner or operator of a covered chem24 ical facility for the purposes of this 

25 title: 


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1 ‘‘(i) Documents directly re2 lated to the Secretary’s review 

3 and approval or disapproval of 

4 vulnerability assessments and site 

5 security plans under this title. 

6 ‘‘(ii) Documents directly re7 lated to inspections and audits 

8 under this title. 

9 ‘‘(iii) Orders, notices, or let10 ters regarding the compliance of 

11 a covered chemical facility with 

12 the requirements of this title. 

13 ‘‘(iv) Information required to 

14 be provided to, or documents and 

15 records created by, the Secretary 

16 under section subsection (b) or (c) 

17 of section 2102. 

18 ‘‘(v) Documents directly re19 lated to security drills and train20 ing exercises, security threats and 

21 breaches of security, and mainte22 nance, calibration, and testing of 

23 security equipment. 

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1 sively for the purposes of this title 

2 that the Secretary determines, if dis3 closed, would be detrimental to chem4 ical facility security. 

5 ‘‘(2) EXCLUSIONS.—For purposes of this 

6 section, protected information does not 

7 include— 

8 ‘‘(A) information that is otherwise 

9 publicly available, including informa10 tion that is required to be made pub11 licly available under any law; 

12 ‘‘(B) information that a chemical 

13 facility has lawfully disclosed other 

14 than in accordance with this title; or 

15 ‘‘(C) information that, if disclosed, 

16 would not be detrimental to the secu17 rity of a chemical facility, including 

18 aggregate regulatory data that the 

19 Secretary determines is appropriate 

20 to describe facility compliance with 

21 the requirements of this title and the 

22 Secretary’s implementation of such 

23 requirements. 


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

2 A TERRORIST ATTACK. 

3 ‘‘(a) ASSESSMENT REQUIRED.— 

4 ‘‘(1) ASSESSMENT.—The owner or oper5 ator of a covered chemical facility shall 

6 include in the site security plan con7 ducted pursuant to section 2103, an as8 sessment of methods to reduce the con9 sequences of a terrorist attack on that 

10 chemical facility, including— 

11 ‘‘(A) a description of the methods 

12 to reduce the consequences of a ter13 rorist attack implemented and con14 sidered for implementation by the 

15 covered chemical facility; 

16 ‘‘(B) the degree to which each 

17 method to reduce the consequences 

18 of a terrorist attack, if already imple19 mented, has reduced, or, if imple20 mented, could reduce, the potential 

21 extent of death, injury, or serious ad22 verse effects to human health result23 ing from a release of a substance of 

24 concern; 

25 ‘‘(C) the technical feasibility, 

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1 ities), personnel implications, savings, 

2 and applicability of implementing 

3 each method to reduce the con4 sequences of a terrorist attack; and 

5 ‘‘(D) any other information that 

6 the owner or operator of the covered 

7 chemical facility considered in con8 ducting the assessment. 

9 ‘‘(2) FEASIBLE.—For the purposes of 

10 this section, the term ‘feasible’ means fea11 sible with the use of best technology, 

12 techniques, and other means that the 

13 Secretary finds, after examination for ef14 ficacy under field conditions and not 

15 solely under laboratory conditions, are 

16 available for use at the covered chemical 

17 facility. 

18 ‘‘(b) IMPLEMENTATION.— 

19 ‘‘(1) IMPLEMENTATION.— 

20 ‘‘(A) IN GENERAL.—The owner or 

21 operator of a covered chemical facil22 ity that is assigned to tier 1 or tier 2 

23 because of the potential extent and 

24 likelihood of death, injury, and seri25 ous adverse effects to human health, 


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1 the environment, critical infrastruc2 ture, public health, homeland secu3 rity, national security, and the na4 tional economy from a release of a 

5 substance of concern at the covered 

6 chemical facility, shall implement 

7 methods to reduce the consequences 

8 of a terrorist attack on the chemical 

9 facility if the Director of the Office of 

10 Chemical Facility Security deter11 mines, in his or her discretion, using 

12 the assessment conducted pursuant 

13 to subsection (a), that the implemen14 tation of such methods at the facil15 ity— 

16 ‘‘(i) would significantly reduce 

17 the risk of death, injury, or seri18 ous adverse effects to human 

19 health resulting from a chemical 

20 facility terrorist incident but— 

21 ‘‘(I) would not increase 

22 the interim storage of a sub23 stance of concern outside the 

24 facility; 


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1 ‘‘(II) would not directly re2 sult in the creation of a new 

3 covered chemical facility as4 signed to tier 1 or tier 2 be5 cause of the potential extent 

6 and likelihood of death, in7 jury, and serious adverse ef8 fects to human health, the en9 vironment, critical infrastruc10 ture, public health, homeland 

11 security, national security, 

12 and the national economy 

13 from a release of a substance 

14 of concern at the covered 

15 chemical facility; and 

16 ‘‘(III) would not result in 

17 the reassignment of an exist18 ing covered chemical facility 

19 from tier 3 or tier 4 to tier 1 

20 or tier 2 because of the poten21 tial extent and likelihood of 

22 death, injury, and serious ad23 verse effects to human health, 

24 the environment, critical in25 frastructure, public health, 


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1 homeland security, national 

2 security, and the national 

3 economy from a release of a 

4 substance of concern at the 

5 covered chemical facility; 

6 ‘‘(ii) can feasibly be incor7 porated into the operation of the 

8 covered chemical facility; and 

9 ‘‘(iii) would not significantly 

10 and demonstrably impair the abil11 ity of the owner or operator of 

12 the covered chemical facility to 

13 continue the business of the facil14 ity at its location. 

15 ‘‘(B) WRITTEN DETERMINATION.—A 

16 determination by the Director of the 

17 Office of Chemical Facility Security 

18 pursuant to subparagraph (A) shall 

19 be made in writing and include the 

20 basis and reasons for such determina21 tion. 

22 ‘‘(C) MARITIME FACILITIES.—With 

23 respect to a covered chemical facility 

24 for which a security plan is required 

25 under section 70103(c) of title 46, 


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1 United States Code, a written deter2 mination pursuant to subparagraph 

3 (A) shall be made only after consulta4 tion with the Captain of the Port for 

5 the area in which the covered chem6 ical facility is located. 

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

8 ‘‘(A) IN GENERAL.—An owner or op9 erator of a covered chemical facility 

10 who is unable to comply with the Di11 rector’s determination under para12 graph (1) shall, within 120 days of re13 ceipt of the Director’s determination, 

14 provide to the Secretary a written ex15 planation that includes the reasons 

16 therefor. Such written explanation 

17 shall specify whether the owner or 

18 operator’s inability to comply arises 

19 under clause (ii) or (iii) of paragraph 

20 (1)(A), or both. 

21 ‘‘(B) REVIEW.—Not later than 120 

22 days of receipt of an explanation sub23 mitted under subparagraph (A), the 

24 Secretary, after consulting with the 

25 owner or operator of the covered 


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1 chemical facility who submitted such 

2 explanation, as well as experts in the 

3 subjects of environmental health and 

4 safety, security, chemistry, design 

5 and engineering, process controls and 

6 implementation, maintenance, pro7 duction and operations, chemical 

8 process safety, and occupational 

9 health, as appropriate, shall provide 

10 to the owner or operator a written 

11 determination, in his or her discre12 tion, of whether implementation shall 

13 be required pursuant to paragraph 

14 (1). If the Secretary determines that 

15 implementation is required, the Sec16 retary shall issue an order that estab17 lishes the basis for such determina18 tion, including the findings of the rel19 evant experts, the specific methods 

20 selected for implementation, and a 

21 schedule for implementation of the 

22 methods at the facility. 

23 ‘‘(c) SECTORAL IMPACTS.— 

24 ‘‘(1) GUIDANCE FOR FARM SUPPLIES MER25 CHANT WHOLESALERS.—The Secretary shall 


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1 provide guidance and, as appropriate, 

2 tools, methodologies or computer soft3 ware, to assist farm supplies merchant 

4 wholesalers in complying with the re5 quirements of this section. The Sec6 retary may award grants to farm supplies 

7 merchant wholesalers to assist with com8 pliance with subsection (a), and in 

9 awarding such grants, shall give priority 

10 to farm supplies merchant wholesalers 

11 that have the greatest need for such 

12 grants. 

13 ‘‘(2) ASSESSMENT OF IMPACTS.—Not 

14 later than 6 months after the date of en15 actment of this title, the Secretary shall 

16 transmit an assessment of the potential 

17 impacts of compliance with provisions of 

18 this section regarding the assessment 

19 and, as appropriate, implementation, of 

20 methods to reduce the consequences of a 

21 terrorist attack by manufacturers, retail22 ers, aerial commercial applicators, and 

23 distributors of pesticide and fertilizer to 

24 the Committee on Energy and Commerce 

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1 mittee on Homeland Security of the 

2 House of Representatives and the Com3 mittee on Homeland Security and Gov4 ernmental Affairs of the Senate. Such 

5 assessment shall be conducted by the 

6 Secretary in consultation with other ap7 propriate Federal agencies and shall in8 clude the following: 

9 ‘‘(A) Data on the scope of facilities 

10 covered by this title, including the 

11 number and type of manufacturers, 

12 retailers, aerial commercial applica13 tors and distributors of pesticide and 

14 fertilizer required to assess methods 

15 to reduce the consequences of a ter16 rorist attack under subsection (a) and 

17 the number and type of manufactur18 ers, retailers, aerial commercial ap19 plicators and distributors of pesticide 

20 and fertilizer assigned to tier 1 or tier 

21 2 by the Secretary because of the 

22 potential extent and likelihood of 

23 death, injury, and serious adverse ef24 fects to human health, the environ25 ment, critical infrastructure, public 


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1 health, homeland security, national 

2 security, and the national economy 

3 from the release of a substance of 

4 concern at the facility. 

5 ‘‘(B) A survey of known methods, 

6 processes or practices, other than 

7 elimination of or cessation of manu8 facture of the pesticide or fertilizer, 

9 that manufacturers, retailers, aerial 

10 commercial applicators, and distribu11 tors of pesticide and fertilizer could 

12 use to reduce the consequences of a 

13 terrorist attack, including an assess14 ment of the costs and technical feasi15 bility of each such method, process, 

16 or practice. 

17 ‘‘(C) An analysis of how the as18 sessment of methods to reduce the 

19 consequences of a terrorist attack 

20 under subsection (a) by manufactur21 ers, retailers, aerial commercial ap22 plicators, and distributors of pes23 ticide and fertilizer, and, as appro24 priate, the implementation of meth25 ods to reduce the consequences of a


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1 terrorist attack by such manufactur2 ers, retailers, aerial commercial ap3 plicators, and distributors of pes4 ticide and fertilizer subject to sub5 section (b), are likely to impact 

6 other sectors engaged in commerce. 

7 ‘‘(D) Recommendations for how to 

8 mitigate any adverse impacts identi9 fied pursuant to subparagraph (C). 

10 ‘‘(3) FARM SUPPLIES MERCHANT WHOLE11 SALER.—In this subsection, the term ‘farm 

12 supplies merchant wholesaler’ means a 

13 covered chemical facility that is pri14 marily engaged in the merchant whole15 sale distribution of farm supplies, such as 

16 animal feeds, fertilizers, agricultural 

17 chemicals, pesticides, plant seeds, and 

18 plant bulbs. 

19 ‘‘(d) PROVISION OF INFORMATION ON ALTER20 NATIVE APPROACHES.— 

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

22 make available information on the use 

23 and availability of methods to reduce the 

24 consequences of a chemical facility ter25 rorist incident. 


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1 ‘‘(2) INFORMATION TO BE INCLUDED.— 

2 The information under paragraph (1) 

3 may include information about— 

4 ‘‘(A) general and specific types of 

5 such methods; 

6 ‘‘(B) combinations of chemical 

7 sources, substances of concern, and 

8 hazardous processes or conditions for 

9 which such methods could be appro10 priate; 

11 ‘‘(C) the availability of specific 

12 methods to reduce the consequences 

13 of a terrorist attack; 

14 ‘‘(D) the costs and cost savings re15 sulting from the use of such methods; 

16 ‘‘(E) emerging technologies that 

17 could be transferred from research 

18 models or prototypes to practical ap19 plications; 

20 ‘‘(F) the availability of technical 

21 assistance and best practices; and 

22 ‘‘(G) such other matters that the 

23 Secretary determines are appro24 priate. 


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1 ‘‘(3) PUBLIC AVAILABILITY.—Informa2 tion made available under this subsection 

3 shall not identify any specific chemical 

4 facility, violate the protection of informa5 tion provisions under section 2110, or dis6 close any proprietary information. 

7 ‘‘(e) FUNDING FOR METHODS TO REDUCE THE

8 CONSEQUENCES OF A TERRORIST ATTACK.—The 

9 Secretary may make funds available to help 

10 defray the cost of implementing methods to 

11 reduce the consequences of a terrorist attack 

12 to covered chemical facilities that are re13 quired by the Secretary to implement such 

14 methods. 

15 ‘‘SEC. 2112. APPLICABILITY. 

16 ‘‘This title shall not apply to— 

17 ‘‘(1) any chemical facility that is 

18 owned and operated by the Secretary of 

19 Defense; 

20 ‘‘(2) the transportation in commerce, 

21 including incidental storage, of any sub22 stance of concern regulated as a haz23 ardous material under chapter 51 of title 

24 49, United States Code; 


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

2 chemical facility that— 

3 ‘‘(A) is subject to regulation by 

4 the Nuclear Regulatory Commission 

5 (hereinafter in this paragraph re6 ferred to as the ‘Commission’) or a 

7 State that has entered into an agree8 ment with the Commission under sec9 tion 274 b. of the Atomic Energy Act 

10 of 1954 (42 U.S.C. 2021 b.); 

11 ‘‘(B) has had security controls im12 posed by the Commission or State, 

13 whichever has the regulatory author14 ity, on the entire facility or the speci15 fied portion of the facility; and 

16 ‘‘(C) has been designated by the 

17 Commission, after consultation with 

18 the State, if any, that regulates the fa19 cility, and the Secretary, as excluded 

20 from the application of this title; or 

21 ‘‘(4) any public water system subject 

22 to the Safe Drinking Water Act (42 U.S.C. 

23 300f et seq.). 


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1 ‘‘SEC. 2113. SAVINGS CLAUSE. 

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

3 shall affect or modify in any way any obliga4 tion or liability of any person under any other 

5 Federal law, including section 112 of the 

6 Clean Air Act (42 U.S.C. 7412), the Federal 

7 Water Pollution Control Act (33 U.S.C. 1251 et 

8 seq.), the Resource Conservation and Recov9 ery Act of 1976 (42 U.S.C. 6901 et seq.), the Na10 tional Environmental Policy Act of 1969 (42 

11 U.S.C. 4321 et seq.), the Occupational Safety 

12 and Health Act (29 U.S.C. 651 et seq.), the Na13 tional Labor Relations Act (29 U.S.C. 151 et 

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

16 11001 et seq.), the Safe Drinking Water Act (42 

17 U.S.C. 300f et seq.), the Maritime Transpor18 tation Security Act of 2002 (Public Law 107– 

19 295), the Comprehensive Environmental Re20 sponse, Compensation, and Liability Act of 

21 1980 (42 U.S.C. 9601 et seq.), the Toxic Sub22 stances Control Act (15 U.S.C. 2601 et seq.), 

23 and the Fair Credit Reporting Act (15 U.S.C. 

24 1681 et seq.). 

25 ‘‘(b) OTHER REQUIREMENTS.—Nothing in 

26 this title shall preclude or deny the right of 


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1 any State or political subdivision thereof to 

2 adopt or enforce any regulation, requirement, 

3 or standard of performance relating to envi4 ronmental protection, health, or safety. 

5 ‘‘(c) ACCESS.—Nothing in this title shall 

6 abridge or deny access to a chemical facility 

7 site to any person where required or per8 mitted under any other law or regulation. 

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

10 ‘‘(a) IN GENERAL.—There is established in 

11 the Department an Office of Chemical Facility 

12 Security, headed by a Director, who shall be 

13 a member of the Senior Executive Service in 

14 accordance with subchapter VI of chapter 53 

15 of title 5, United States Code, under section 

16 5382 of that title, and who shall be responsible 

17 for carrying out the responsibilities of the 

18 Secretary under this title. 

19 ‘‘(b) PROFESSIONAL QUALIFICATIONS.—The 

20 individual selected by the Secretary as the Di21 rector of the Office of Chemical Facility Secu22 rity shall have professional qualifications and 

23 experience necessary for effectively directing 

24 the Office of Chemical Facility Security and 

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1 cluding a demonstrated knowledge of phys2 ical infrastructure protection, cybersecurity, 

3 chemical facility security, hazard analysis, 

4 chemical process engineering, chemical proc5 ess safety reviews, or other such qualifica6 tions that the Secretary determines to be nec7 essary. 

8 ‘‘(c) SELECTION PROCESS.—The Secretary 

9 shall make a reasonable effort to select an in10 dividual to serve as the Director from among 

11 a group of candidates that is diverse with re12 spect to race, ethnicity, age, gender, and dis13 ability characteristics and submit to the Com14 mittee on Homeland Security and the Com15 mittee on Energy and Commerce of the House 

16 of Representatives and the Committee on 

17 Homeland Security and Governmental Affairs 

18 of the Senate information on the selection 

19 process, including details on efforts to assure 

20 diversity among the candidates considered 

21 for this position. 


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

2 INDIVIDUALS AT CERTAIN CHEMICAL FACILI3 TIES. 

4 ‘‘(a) REGULATIONS ISSUED BY THE SEC5 RETARY.— 

6 ‘‘(1) IN GENERAL.— 

7 ‘‘(A) REQUIREMENT.—The Secretary 

8 shall issue regulations to require cov9 ered chemical facilities to establish 

10 personnel surety for individuals de11 scribed in subparagraph (B) by con12 ducting appropriate security back13 ground checks and ensuring appro14 priate credentials for unescorted visi15 tors and chemical facility personnel, 

16 including permanent and part-time 

17 personnel, temporary personnel, and 

18 contract personnel, including— 

19 ‘‘(i) measures designed to 

20 verify and validate identity; 

21 ‘‘(ii) measures designed to 

22 check criminal history; 

23 ‘‘(iii) measures designed to 

24 verify and validate legal author25 ization to work; and 


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1 ‘‘(iv) measures designed to 

2 identify people with terrorist ties. 

3 ‘‘(B) INDIVIDUALS DESCRIBED.—For 

4 purposes of subparagraph (A), an in5 dividual described in this subpara6 graph is— 

7 ‘‘(i) a covered individual who 

8 has unescorted access to re9 stricted areas or critical assets or 

10 who is provided with a copy of a 

11 security vulnerability assessment 

12 or site security plan; 

13 ‘‘(ii) a person associated with 

14 a covered chemical facility, in15 cluding any designated employee 

16 representative, who is provided 

17 with a copy of a security vulner18 ability assessment or site security 

19 plan; or 

20 ‘‘(iii) a person who is deter21 mined by the Secretary to require 

22 a security background check 

23 based on chemical facility secu24 rity performance standards. 


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1 ‘‘(2) REGULATIONS.—The regulations 

2 required by paragraph (1) shall set 

3 forth— 

4 ‘‘(A) the scope of the security 

5 background checks, including the 

6 types of disqualifying offenses and 

7 the time period covered for each per8 son subject to a security background 

9 check under paragraph (1); 

10 ‘‘(B) the processes to conduct the 

11 security background checks; 

12 ‘‘(C) the necessary biographical 

13 information and other data required 

14 in order to conduct the security back15 ground checks; 

16 ‘‘(D) a redress process for an ad17 versely-affected person consistent 

18 with subsections (b) and (c); and 

19 ‘‘(E) a prohibition on an owner or 

20 operator of a covered chemical facil21 ity misrepresenting to an employee or 

22 other relevant person, including an 

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1 tives, or guidance issued by the Sec2 retary related to security background 

3 check requirements for covered indi4 viduals when conducting a security 

5 background check. 

6 ‘‘(b) MISREPRESENTATION OF ADVERSE EM7 PLOYMENT DECISIONS.—The regulations re8 quired by subsection (a)(1) shall set forth that 

9 it shall be a misrepresentation under sub10 section (a)(2)(E) to attribute an adverse em11 ployment decision, including removal or sus12 pension of the employee, to such regulations 

13 unless the owner or operator finds, after op14 portunity for appropriate redress under the 

15 processes provided under subsection (c)(1) 

16 and (c)(2), that the person subject to such ad17 verse employment decision— 

18 ‘‘(1) has been convicted of, has been 

19 found not guilty of by reason of insanity, 

20 or is under want, warrant, or indictment 

21 for a permanent disqualifying criminal 

22 offense listed in part 1572 of title 49, 

23 Code of Federal Regulations; 

24 ‘‘(2) was convicted of or found not 

25 guilty by reason of insanity of an interim 


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1 disqualifying criminal offense listed in 

2 part 1572 of title 49, Code of Federal Reg3 ulations, within 7 years of the date on 

4 which the covered chemical facility per5 forms the security background check; 

6 ‘‘(3) was incarcerated for an interim 

7 disqualifying criminal offense listed in 

8 part 1572 of title 49, Code of Federal Reg9 ulations, and released from incarceration 

10 within 5 years of the date that the chem11 ical facility performs the security back12 ground check; 

13 ‘‘(4) is determined by the Secretary to 

14 be on the consolidated terrorist 

15 watchlist; or 

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

17 security background check, not to be le18 gally authorized to work in the United 

19 States. 

20 ‘‘(c) REDRESS PROCESS.—Upon the issuance 

21 of regulations under subsection (a), the Sec22 retary shall— 

23 ‘‘(1) require the owner or operator to 

24 provide an adequate and prompt redress 

25 process for a person subject to a security 


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1 background check under subsection 

2 (a)(1) who is subjected to an adverse em3 ployment decision, including removal or 

4 suspension of the employee, due to such 

5 regulations that is consistent with the ap6 peals process established for employees 

7 subject to consumer reports under the 

8 Fair Credit Reporting Act (15 U.S.C. 1681 

9 et seq.), as in force on the date of enact10 ment of this title; 

11 ‘‘(2) provide an adequate and prompt 

12 redress process for a person subject to a 

13 security background check under sub14 section (a)(1) who is subjected to an ad15 verse employment decision, including re16 moval or suspension of the employee, due 

17 to a determination by the Secretary 

18 under subsection (b)(4), that is consistent 

19 with the appeals process established 

20 under section 70105(c) of title 46, United 

21 States Code, including all rights to hear22 ings before an administrative law judge, 

23 scope of review, and a review of an un24 classified summary of classified evidence 

25 equivalent to the summary provided in 


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1 part 1515 of title 49, Code of Federal Reg2 ulations; 

3 ‘‘(3) provide an adequate and prompt 

4 redress process for a person subject to a 

5 security background check under sub6 section (a)(1) who is subjected to an ad7 verse employment decision, including re8 moval or suspension of the employee, due 

9 to a violation of subsection (a)(2)(E), 

10 which shall not preclude the exercise of 

11 any other rights available under collec12 tive bargaining agreements or applicable 

13 laws; 

14 ‘‘(4) establish a reconsideration proc15 ess described in subsection (d) for a per16 son subject to an adverse employment de17 cision that was attributed by an owner or 

18 operator to the regulations required by 

19 subsection (a)(1); 

20 ‘‘(5) have the authority to order an 

21 appropriate remedy, including reinstate22 ment of the person subject to a security 

23 background check under subsection 

24 (a)(1), if the Secretary determines that 

25 the adverse employment decision was 


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1 made in violation of the regulations re2 quired under subsection (a)(1) or as a re3 sult of an erroneous determination by the 

4 Secretary under subsection (b)(4); 

5 ‘‘(6) ensure that the redress processes 

6 required under paragraphs (1), (2), or (3) 

7 afford to the person a full disclosure of 

8 any public-record event covered by sub9 section (b) that provides the basis for an 

10 adverse employment decision; and 

11 ‘‘(7) ensure that the person subject to 

12 a security background check under sub13 section (a)(1) receives the person’s full 

14 wages and benefits until all redress proc15 esses under this subsection are ex16 hausted. 

17 ‘‘(d) RECONSIDERATION PROCESS.— 

18 ‘‘(1) IN GENERAL.—The reconsideration 

19 process required under subsection (c)(4) 

20 shall— 

21 ‘‘(A) require the Secretary to de22 termine, within 30 days after receiv23 ing a petition submitted by a person 

24 subject to an adverse employment de25 cision that was attributed by an 


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1 owner or operator to the regulations 

2 required by subsection (a)(1), wheth3 er such person poses a security risk 

4 to the covered chemical facility; and 

5 ‘‘(B) include procedures con6 sistent with section 70105(c) of title 

7 46, United States Code, including all 

8 rights to hearings before an adminis9 trative law judge, scope of review, 

10 and a review of an unclassified sum11 mary of classified evidence equiva12 lent to the summary provided in part 

13 1515 of title 49, Code of Federal Regu14 lations. 

15 ‘‘(2) DETERMINATION BY THE SEC16 RETARY.—In making a determination de17 scribed under paragraph (1)(A), the Sec18 retary shall— 

19 ‘‘(A) give consideration to the cir20 cumstance of any disqualifying act or 

21 offense, restitution made by the per22 son, Federal and State mitigation 

23 remedies, and other factors from 

24 which it may be concluded that the 


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1 person does not pose a security risk 

2 to the covered chemical facility; and 

3 ‘‘(B) provide his or her determina4 tion as to whether such person poses 

5 a security risk to the covered chem6 ical facility to the petitioner and to 

7 the owner or operator of the covered 

8 chemical facility. 

9 ‘‘(3) OWNER OR OPERATOR RECONSIDER10 ATION.—If the Secretary determines pur11 suant to paragraph (1)(A) that the person 

12 does not pose a security risk to the cov13 ered chemical facility, it shall thereafter 

14 constitute a prohibited misrepresentation 

15 for the owner or operator of the covered 

16 chemical facility to continue to attribute 

17 the adverse employment decision to the 

18 regulations under subsection (a)(1). 

19 ‘‘(e) RESTRICTIONS ON USE AND MAINTE20 NANCE OF INFORMATION.—Information ob21 tained under this section by the Secretary or 

22 the owner or operator of a covered chemical 

23 facility shall be handled as follows: 

24 ‘‘(1) Such information may not be 

25 made available to the public. 


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1 ‘‘(2) Such information may not be 

2 accessed by employees of the facility ex3 cept for such employees who are directly 

4 involved with collecting the information 

5 or conducting or evaluating security 

6 background checks. 

7 ‘‘(3) Such information shall be main8 tained confidentially by the facility and 

9 the Secretary and may be used only for 

10 making determinations under this sec11 tion. 

12 ‘‘(4) The Secretary may share such in13 formation with other Federal, State, 

14 local, and tribal law enforcement agen15 cies. 

16 ‘‘(f) SAVINGS CLAUSE.— 

17 ‘‘(1) RIGHTS AND RESPONSIBILITIES.— 

18 Nothing in this section shall be construed 

19 to abridge any right or responsibility of a 

20 person subject to a security background 

21 check under subsection (a)(1) or an 

22 owner or operator of a covered chemical 

23 facility under any other Federal, State, 

24 local, or tribal law or collective bar25 gaining agreement. 


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1 ‘‘(2) EXISTING RIGHTS.—Nothing in this 

2 section shall be construed as creating 

3 any new right or modifying any existing 

4 right of an individual to appeal a deter5 mination by the Secretary as a result of a 

6 check against a terrorist watch list. 

7 ‘‘(g) PREEMPTION.—Nothing in this section 

8 shall be construed to preempt, alter, or affect 

9 a Federal, State, local, or tribal law that re10 quires criminal history background checks, 

11 checks on the authorization of an individual 

12 to work in the United States, or other back13 ground checks of persons subject to security 

14 background checks under subsection (a)(1). 

15 ‘‘(h) DEFINITION OF SECURITY BACKGROUND

16 CHECK.—The term ‘security background 

17 check’ means a review at no cost to any per18 son subject to a security background check 

19 under subsection (a)(1) of the following for 

20 the purpose of identifying individuals who 

21 may pose a threat to chemical facility secu22 rity, to national security, or of terrorism: 

23 ‘‘(1) Relevant databases to verify and 

24 validate identity. 


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1 ‘‘(2) Relevant criminal history data2 bases. 

3 ‘‘(3) In the case of an alien (as defined 

4 in section 101 of the Immigration and Na5 tionality Act (8 U.S.C. 1101(a)(3))), the rel6 evant databases to determine the status 

7 of the alien under the immigration laws 

8 of the United States. 

9 ‘‘(4) The consolidated terrorist 

10 watchlist. 

11 ‘‘(5) Other relevant information or 

12 databases, as determined by the Sec13 retary. 

14 ‘‘(i) DEPARTMENT-CONDUCTED SECURITY

15 BACKGROUND CHECK.—The regulations under 

16 subsection (a)(1) shall set forth a process by 

17 which the Secretary, on an ongoing basis, 

18 shall determine whether alternate security 

19 background checks conducted by the Depart20 ment are sufficient to meet the requirements 

21 of this section such that no additional secu22 rity background check under this section is 

23 required for an individual for whom such a 

24 qualifying alternate security background 

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1 quire a facility to which the individual will 

2 have unescorted access to sensitive or re3 stricted areas to submit identifying informa4 tion about the individual and the alternate se5 curity background check conducted for that 

6 individual to the Secretary in order to enable 

7 the Secretary to verify the validity of the al8 ternate security background check. Such reg9 ulations shall provide that no security back10 ground check under this section is required 

11 for an individual holding a transportation se12 curity card issued under section 70105 of title 

13 46, United States Code. 

14 ‘‘SEC. 2116. CITIZEN ENFORCEMENT. 

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

16 subsection (c), any person may commence a 

17 civil action on such person’s own behalf— 

18 ‘‘(1) against any governmental entity 

19 (including the United States, any other 

20 governmental instrumentality or agency, 

21 and any federally owned-contractor oper22 ated facility, to the extent permitted by 

23 the eleventh amendment to the Constitu24 tion) alleged to be in violation of any 


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1 order that has become effective pursuant 

2 to this title; or 

3 ‘‘(2) against the Secretary, for an al4 leged failure to perform any act or duty 

5 under this title that is not discretionary 

6 for the Secretary. 

7 ‘‘(b) COURT OF JURISDICTION.— 

8 ‘‘(1) IN GENERAL.—Any action under 

9 subsection (a)(1) shall be brought in the 

10 district court for the district in which the 

11 alleged violation occurred. Any action 

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

13 brought in the district court for the dis14 trict in which the alleged violation oc15 curred or in the United States District 

16 Court of the District of Columbia. 

17 ‘‘(2) RELIEF.—The district court shall 

18 have jurisdiction, without regard to the 

19 amount in controversy or the citizenship 

20 of the parties to enforce the order re21 ferred to in subsection (a)(1), to order 

22 such governmental entity to take such ac23 tion as may be necessary, or both, or, in 

24 an action commenced under subsection 

25 (a)(2), to order the Secretary to perform 


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1 the non-discretionary act or duty, and to 

2 order any civil penalties, as appropriate, 

3 under section 2107. 

4 ‘‘(c) ACTIONS PROHIBITED.—No action may 

5 be commenced under subsection (a) prior to 

6 60 days after the date on which the person 

7 commencing the action has given notice of the 

8 alleged violation to— 

9 ‘‘(1) the Secretary; and 

10 ‘‘(2) in the case of an action under 

11 subsection (a)(1), any governmental enti12 ty alleged to be in violation of an order. 

13 ‘‘(d) NOTICE.—Notice under this section 

14 shall be given in such manner as the Sec15 retary shall prescribe by regulation. 

16 ‘‘(e) INTERVENTION.—In any action under 

17 this section, the Secretary, if not a party, may 

18 intervene as a matter of right. 

19 ‘‘(f) COSTS.—The court, in issuing any final 

20 order in any action brought pursuant to this 

21 section, may award costs of litigation (includ22 ing reasonable attorney and expert witness 

23 fees) to the prevailing or substantially pre24 vailing party, whenever the court determines 

25 such an award is appropriate. The court may, 


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1 if a temporary restraining order or prelimi2 nary injunction is sought, require the filing of 

3 a bond or equivalent security in accordance 

4 with the Federal Rules of Civil Procedure. 

5 ‘‘(g) OTHER RIGHTS PRESERVED.—Nothing 

6 in this section shall restrict any right which 

7 any person (or class of persons) may have 

8 under any statute or common law. 

9 ‘‘SEC. 2117. CITIZEN PETITIONS. 

10 ‘‘(a) IN GENERAL.—The Secretary shall 

11 issue regulations to establish a petition proc12 ess for petitions described in subsection (b), 

13 including— 

14 ‘‘(1) the format for petitions; 

15 ‘‘(2) the procedures for investigation 

16 of claims; 

17 ‘‘(3) the procedures for response to 

18 petitions, including timelines; and 

19 ‘‘(4) the procedures for de novo re20 view of responses to petitions by the Of21 fice of the Inspector General for the De22 partment of Homeland Security. 

23 ‘‘(b) PETITIONS.—The regulations issued 

24 pursuant to subsection (a) shall allow any per25 son to file a petition with the Secretary— 


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1 ‘‘(1) identifying any person (including 

2 the United States and any other govern3 mental instrumentality or agency, to the 

4 extent permitted by the eleventh amend5 ment to the Constitution) alleged to be in 

6 violation of any standard, regulation, 

7 condition, requirement, prohibition, plan, 

8 or order that has become effective under 

9 this title; and 

10 ‘‘(2) describing the alleged violation 

11 of any standard, regulation, condition, re12 quirement, prohibition, plan, or order 

13 that has become effective under this title 

14 by that person. 

15 ‘‘(c) REQUIREMENTS.—Upon issuance of 

16 regulations under subsection (a), the Sec17 retary shall— 

18 ‘‘(1) accept all petitions described 

19 under subsection (b) that meet the re20 quirements of the regulations promul21 gated under subsection (a); 

22 ‘‘(2) investigate all allegations con23 tained in accepted petitions; 


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1 ‘‘(3) determine whether enforcement 

2 action will be taken concerning the al3 leged violation or violations; 

4 ‘‘(4) respond to all accepted petitions 

5 promptly and in writing; 

6 ‘‘(5) include in all responses to peti7 tions a brief and concise statement, to 

8 the extent permitted under section 2110, 

9 of the allegations, the steps taken to in10 vestigate, the determination made, and 

11 the reasons for such determination; 

12 ‘‘(6) maintain an internal record in13 cluding all protected information related 

14 to the determination; and 

15 ‘‘(7) provide an opportunity for re16 view by the Department of Homeland Se17 curity Inspector General on the full 

18 record, including protected information, 

19 for all determinations made under such 

20 regulations. 

21 ‘‘(d) FINAL AGENCY ACTION.— 

22 ‘‘(1) ONGOING ENFORCEMENT PRO23 CEEDINGS.—Any determination by the Sec24 retary to pursue enforcement action in 

25 response to a petition under this section 


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1 shall not constitute final agency action 

2 because of ongoing enforcement pro3 ceedings. 

4 ‘‘(2) DETERMINATION NOT TO PURSUE EN5 FORCEMENT.—Any determination by the 

6 Secretary not to pursue enforcement ac7 tion in response to a petition under this 

8 section shall constitute final agency ac9 tion. 

10 ‘‘SEC. 2118. ANNUAL REPORT TO CONGRESS. 

11 ‘‘(a) ANNUAL REPORT.—Not later than one 

12 year after the date of the enactment of this 

13 title, annually thereafter for the next four 

14 years, and biennially thereafter, the Secretary 

15 shall submit to the Committee on Homeland 

16 Security and the Committee on Energy and 

17 Commerce of the House of Representatives 

18 and the Committee on Homeland Security and 

19 Governmental Affairs and the Committee on 

20 Environment and Public Works of the Senate 

21 a report on progress in achieving compliance 

22 with this title. Each such report shall include 

23 the following: 

24 ‘‘(1) A qualitative discussion of how 

25 covered chemical facilities, differentiated 


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1 by tier, have reduced the risks of chem2 ical facility terrorist incidents at such fa3 cilities, including— 

4 ‘‘(A) a generalized summary of 

5 measures implemented by covered 

6 chemical facilities in order to meet 

7 each risk-based chemical facility per8 formance standard established by 

9 this title, and those that the facilities 

10 already had in place— 

11 ‘‘(i) in the case of the first re12 port under this section, before the 

13 issuance of the final rule imple14 menting the regulations known as 

15 the ‘Chemical Facility Anti-Ter16 rorism Standards’, issued on April 

17 9, 2007; and 

18 ‘‘(ii) in the case of each subse19 quent report, since the submittal 

20 of the most recent report sub21 mitted under this section; and 

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1 menting to comply with the require2 ments of this title. 

3 ‘‘(2) A quantitative summary of how 

4 the covered chemical facilities, differen5 tiated by tier, are complying with the re6 quirements of this title during the period 

7 covered by the report and how the Sec8 retary is implementing and enforcing 

9 such requirements during such period, 

10 including— 

11 ‘‘(A) the number of chemical fa12 cilities that provided the Secretary 

13 with information about possessing 

14 substances of concern, as described 

15 in section 2102(b)(2); 

16 ‘‘(B) the number of covered chem17 ical facilities assigned to each tier; 

18 ‘‘(C) the number of security vul19 nerability assessments and site secu20 rity plans submitted by covered 

21 chemical facilities; 

22 ‘‘(D) the number of security vul23 nerability assessments and site secu24 rity plans approved and disapproved 

25 by the Secretary; 


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1 ‘‘(E) the number of covered chem2 ical facilities without approved secu3 rity vulnerability assessments or site 

4 security plans; 

5 ‘‘(F) the number of chemical fa6 cilities that have been assigned to a 

7 different tier or are no longer regu8 lated by the Secretary due to imple9 mentation of a method to reduce the 

10 consequences of a terrorist attack 

11 and a description of such imple12 mented methods; 

13 ‘‘(G) the number of orders for 

14 compliance issued by the Secretary; 

15 ‘‘(H) the administrative penalties 

16 assessed by the Secretary for non17 compliance with the requirements of 

18 this title; 

19 ‘‘(I) the civil penalties assessed by 

20 the court for non-compliance with the 

21 requirements of this title; 

22 ‘‘(J) the number of terrorist 

23 watchlist checks conducted by the 

24 Secretary in order to comply with the 

25 requirements of this title, the number 


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1 of appeals conducted by the Sec2 retary pursuant to the processes de3 scribed under paragraphs (2), (3) and 

4 (4) of section 2115(c), aggregate infor5 mation regarding the time taken for 

6 such appeals, aggregate information 

7 regarding the manner in which such 

8 appeals were resolved, and, based on 

9 information provided to the Sec10 retary annually by each owner or op11 erator of a covered chemical facility, 

12 the number of persons subjected to 

13 adverse employment decisions that 

14 were attributed by the owner or oper15 ator to the regulations required by 

16 section 2115; and 

17 ‘‘(K) any other regulatory data the 

18 Secretary deems appropriate to de19 scribe facility compliance with the re20 quirements of this title and the Sec21 retary’s implementation of such re22 quirements. 

23 ‘‘(b) PUBLIC AVAILABILITY.—A report sub24 mitted under this section shall be made pub25 licly available. 


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1 ‘‘SEC. 2119. AUTHORIZATION OF APPROPRIATIONS. 

2 ‘‘There is authorized to be appropriated to 

3 the Secretary of Homeland Security to carry 

4 out this title— 

5 ‘‘(1) $325,000,000 for fiscal year 2011, 

6 of which $100,000,000 shall be made avail7 able to provide funding for methods to 

8 reduce the consequences of a terrorist at9 tack, of which up to $3,000,000 shall be 

10 made available for grants authorized 

11 under section 2111(c)(1); 

12 ‘‘(2) $300,000,000 for fiscal year 2012, 

13 of which $75,000,000 shall be made avail14 able to provide funding for methods to 

15 reduce the consequences of a terrorist at16 tack, of which up to $3,000,000 shall be 

17 made available for grants authorized 

18 under section 2111(c)(1); and 

19 ‘‘(3) $275,000,000 for fiscal year 2013, 

20 of which $50,000,000 shall be made avail21 able to provide funding for methods to 

22 reduce the consequences of a terrorist at23 tack, of which up to $3,000,000 shall be 

24 made available for grants authorized 

25 under section 2111(c)(1).’’. 


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1 (b) CLERICAL AMENDMENT.—The table of 

2 contents in section 1(b) of such Act is amend3 ed by adding at the end the following: 

‘‘TITLE XXI—REGULATION OF SECURITY PRACTICES AT 

CHEMICAL FACILITIES 

‘‘Sec. 2101. Definitions. 

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

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

plans. 

‘‘Sec. 2104. 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. Annual report to Congress. 

‘‘Sec. 2119. Authorization of appropriations.’’. 

4 (c) CONFORMING REPEAL.— 

5 (1) REPEAL.—The Department of 

6 Homeland Security Appropriations Act, 

7 2007 (Public Law 109–295) is amended by 

8 striking section 550. 

9 (2) EFFECTIVE DATE.—The amendment 

10 made by paragraph (1) shall take effect 

11 on the date of the enactment of this Act. 

12 (d) TREATMENT OF CFATS REGULATIONS.— 


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1 (1) SENSE OF CONGRESS.—It is the 

2 sense of Congress that the Secretary of 

3 Homeland Security was granted statutory 

4 authority under section 550 of the De5 partment of Homeland Security Appro6 priations Act (Public Law 109–295) to reg7 ulate security practices at chemical facili8 ties until October 1, 2009. Pursuant to 

9 that section the Secretary prescribed reg10 ulations known as the Chemical Facility 

11 Anti-Terrorism Standards, or ‘‘CFATS’’. 

12 (2) USE OF CURRENT REGULATIONS.—In 

13 carrying out the requirements of title XXI 

14 of the Homeland Security Act of 2002, as 

15 added by subsection (a), the Secretary 

16 may, to the extent that the Secretary de17 termines is appropriate, use any of the 

18 regulations known as CFATS regulations, 

19 as in effect immediately before the date 

20 of the enactment of this Act, that the Sec21 retary determines carry out such require22 ments. 

23 (3) AMENDMENT OF CFATS.—The Sec24 retary shall amend the regulations 

25 known as the Chemical Facility Anti-TerVerDate Nov 24 2008 02:50 Oct 24, 2009 Jkt 089200 PO 00000 Frm 00178 Fmt 6652 Sfmt 6202 E:\BILLS\H2868.RH H2868

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1 rorism Standards to ensure that such reg2 ulations fulfill the requirements of this 

3 Act and the amendments made by this 

4 Act, to the extent that the requirements 

5 of this Act and the amendments made by 

6 this Act differ from the requirements of 

7 such regulations, as in effect on the date 

8 of the enactment of this Act. 

9 (4) USE OF TOOLS DEVELOPED FOR

10 CFATS.—In carrying out this Act and the 

11 amendments made by this Act, to the ex12 tent determined appropriate by the Sec13 retary, the Secretary may use such rules 

14 or tools developed for purposes of the 

15 regulations known as the Chemical Facil16 ity Anti-Terrorism Standards, including 

17 the list of substances of concern, usually 

18 referred to as ‘‘Appendix A’’ and the 

19 chemical security assessment tool (which 

20 includes facility registration, a top-screen 

21 questionnaire, a security vulnerability as22 sessment tool, a site security plan tem23 plate, and a chemical vulnerability infor24 mation repository). 


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1 (e) FACILITIES COVERED BY CFATS.—The 

2 owner or operator of a covered chemical facil3 ity, who, before the effective date of the final 

4 regulations issued under title XXI of the 

5 Homeland Security Act of 2002, as added by 

6 subsection (a), submits a security vulner7 ability assessment or site security plan under 

8 the regulations known as CFATS regulations, 

9 as in effect immediately before the enactment 

10 of this Act, shall be required to update or 

11 amend the facility’s security vulnerability as12 sessment and site security plan to reflect any 

13 additional requirements of this Act or the 

14 amendments made by this Act, according to a 

15 timeline established by the Secretary. 

16 (f) CONSULTATION WITH OTHER PERSONS.— 

17 In developing and carrying out the regula18 tions under title XXI of the Homeland Secu19 rity Act of 2002, as added by subsection (a), 

20 the Secretary shall consult with the Adminis21 trator of the Environmental Protection Agen22 cy, and other persons, as appropriate, regard23 ing— 

24 (1) the designation of substances of 

25 concern; 


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1 (2) methods to reduce the con2 sequences of a terrorist attack; 

3 (3) security at co-owned and co-oper4 ated drinking water and wastewater fa5 cilities; 

6 (4) the treatment of protected infor7 mation; and 

8 (5) such other matters as the Sec9 retary determines necessary. 

10 (g) DEADLINE FOR REGULATIONS.— 

11 (1) PROPOSED RULE.—The Secretary of 

12 Homeland Security shall promulgate a 

13 proposed rule to fulfill the requirements 

14 of title XXI of the Homeland Security Act 

15 of 2002, as added by subsection (a), not 

16 later than 6 months after the date of the 

17 enactment of this Act. 

18 (2) FINAL RULE.—The Secretary shall, 

19 after proper notice and opportunity for 

20 public comment, promulgate a final rule 

21 to fulfill the requirements of such title 

22 not later than 18 months after the date of 

23 the enactment of this Act. 


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Union Calendar No. 178 

111TH CONGRESS 

1ST SESSION H. R. 2868 

[Report No. 111–205, Parts I and II] 

A BILL 

To amend the Homeland Security Act of 2002 to 

chemical facilities, and for other purposes. rity and protect against acts of terrorism against Secretary of Homeland Security to enhance secuextend, modify, and recodify the authority of the 

OCTOBER 23, 2009 

Reported from the Committee on Energy and Commerce 

O

with an amendment 

CTOBER 23, 2009 

Committee on the Judiciary discharged; committed to the 

Union and ordered to be printed Committee of the Whole House on the State of the 


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