1.This Act may be cited as
the Chemical Facility Anti-Terrorism Act of 2005
.
2.In this Act:
(1)The term chemical source means a facility
designated as a chemical source by the Secretary under section 3.
(2)The term critical infrastructure has
the meaning given the term in section 2 of the Homeland Security Act of 2002 (6
U.S.C. 101).
(3)The
term Department means the Department of Homeland Security.
(4)The
term environment has the meaning given the term in section 101 of
the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601).
(5)The term higher risk tier means a tier
designated by the Secretary as a higher risk tier under section 3(e)(3).
(6)MTSA-regulated
facilitiesThe term MTSA-regulated facility means a
facility subject to the security requirements under chapter 701 of title 46,
United States Code (commonly known as the Maritime Transportation
Security Act
).
(7)The term owner or operator means any person
who owns, leases, operates, controls, or supervises a chemical source.
(8)The
term release has the meaning given the term in section 101 of the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601).
(9)The
term Secretary means the Secretary of Homeland Security.
(10)
(A)The term security measure means an action to
ensure or enhance the security of a chemical source against a terrorist
incident.
(B)The
term security measure, with respect to a chemical source, includes
measures such as—
(i)employee training
and background and identification authentication checks;
(ii)the limitation
and prevention of access to controls of the chemical source;
(iii)the protection
of the perimeter of the chemical source;
(iv)the installation
and operation of intrusion detection sensors;
(v)the implementation
of measures to increase computer or computer network security;
(vi)the
implementation of other security-related measures to ensure or enhance the
security of a chemical source from a terrorist incident;
(vii)the
implementation of measures and controls to prevent, protect against, or reduce
the consequences of a terrorist incident, including—
(I)contingency and
evacuation plans;
(II)early warning
systems; and
(III)the relocation,
hardening of the storage or containment, modification, processing,
substitution, or reduction of substances of concern; and
(viii)the conduct of
any similar security-related activity, as determined by the Secretary.
(11)The term substance of concern means—
(A)a chemical
substance present at a chemical source in quantities equal to or exceeding the
threshold quantities for the chemical substance, as defined in or established
under paragraphs (3) and (5) of section 112(r) of the
Clean Air Act (42 U.S.C.
7412(r));
(B)ammonium nitrate,
in a quantity to be determined by the Secretary by regulation; and
(C)any other chemical
substance designated as a substance of concern by the Secretary under section
3(i) in quantities equal to or exceeding the threshold quantities established
under section 3(i), based on the potential extent of death, injury, or serious
adverse effects to human health and safety or the environment or the potential
impact on national or economic security or critical infrastructure caused by a
terrorist incident involving the chemical substance.
(12)The
term terrorism has the meaning given the term in section 2 of the
Homeland Security Act of 2002 (6 U.S.C. 101).
(13)The term terrorist incident means—
(A)a terrorist attack
against a chemical source;
(B)a release from a
chemical source into the environment of a substance of concern that is caused
by an act of terrorism; and
(C)the theft of a
substance of concern by a person for off-site release in furtherance of an act
of terrorism.
3.Designation and
tiering of chemical sources
(a)Not
later than 1 year after the date of enactment of this Act, the Secretary
shall—
(1)promulgate
regulations establishing criteria for designating chemical sources by using the
risk factors described in subsection (b) and by evaluating the types of
facilities described in subsection (c) that shall be considered in designating
chemical sources; and
(2)designate chemical
sources in existence as of that date.
(b)Risk Factors To
Be ConsideredIn establishing criteria under subsection (a)(1)
for designating chemical sources, the Secretary shall consider—
(1)the perceived
threat to a facility, including a consideration of adversary capabilities and
intent, preparedness, target attractiveness, and deterrence
capabilities;
(2)the potential
extent and likelihood of death, injury, or serious adverse effects to human
health and safety or to the environment caused by a terrorist incident at a
facility;
(3)the threats to or
potential impact on national security or critical infrastructure caused by a
terrorist incident at a facility;
(4)the potential
threats or harm to the economy that would result from a terrorist incident at a
facility, including whether a facility is the sole supplier, or the producer of
a high percentage, of a product that is critical to the economy, the chemical
industry, or national security;
(5)the proximity of a
facility to population centers;
(6)the nature and
quantity of substances of concern at a facility; and
(7)such other
security-related factors as the Secretary determines to be appropriate and
necessary to protect the public health and safety, critical infrastructure, and
national and economic security.
(c)In establishing criteria under subsection (a)(1) for
designating chemical sources, the Secretary shall—
(1)consider any
facility that is a stationary source (as defined in section 112(r)(2) of the
Clean Air Act (42 U.S.C. 7412(r)(2))
for which the owner or operator is required to complete a risk management plan
in accordance with section 112(r)(7)(B)(ii) of the
Clean Air Act (42 U.S.C.
7412(r)(7)(B)(ii));
(2)consider any other
facility that produces, uses, or stores a substance of concern; and
(3)determine whether
any additional facility (including, as of the date of the determination, any
facility that is operational and any facility that will become operational in
the future) shall be designated chemical sources under this Act.
(d)In
designating facilities as chemical sources, the Secretary shall not include any
facility owned or operated by the Department of Defense or the Department of
Energy.
(e)
(1)Not later than 1 year after the date of enactment of this
Act, the Secretary shall promulgate rules establishing a risk-based tier system
of chemical sources that—
(A)shall be based on
the criteria established by the Secretary under subsection (a)(1);
(B)consists of
several tiers of chemical sources;
(C)to the maximum
extent practicable, enables a chemical source to develop appropriate
site-specific measures to meet the security performance standards established
under subsection (f) for the tier applicable to the chemical source; and
(D)provides guidance
to the owner or operator of a chemical source regarding the steps that would
enable the chemical source to move to a lower risk tier, if the owner or
operator seeks to move to a lower risk tier.
(2)Not later than 1 year after the date of enactment of this
Act, the Secretary shall determine the tier applicable to each chemical source
designated under subsection (a)(2).
(3)The Secretary shall designate 1 or more tiers established
under paragraph (1) as higher risk tiers.
(f)Security
Performance Standards
(1)The Secretary shall establish security performance
standards appropriate to the risk-based tiers established under subsection
(e).
(2)The
security performance standards established under paragraph (1) shall—
(A)set increasingly
strict security requirements as the level of risk for the tier
increases;
(B)enable a chemical
source to select security measures that, in combination, satisfy the security
performance standards established by the Secretary; and
(C)be based on the
criteria in section 4(a)(2).
(3)
(A)The Secretary shall provide guidance to a chemical source
regarding the types of security measures that, if applied, could satisfy the
security performance standards.
(B)The owner or operator of a chemical source shall have
flexibility to employ different security measures than those contained in the
guidance described in subparagraph (A) if such measures satisfy the security
performance standards established for the tier applicable to the chemical
source.
(g)Not later than 180 days after the date of enactment of
this Act, the Secretary shall notify facilities that may be designated as
chemical sources regarding the review of facilities and designation of chemical
sources to be conducted under this Act, including the timeline for such review
and designation.
(h)Subsequent
Determinations
(1)Periodic review
of determinationsNot later than 3 years after the designation of
chemical sources under subsection (a)(2), and every 3 years thereafter, the
Secretary shall, after considering the criteria established under subsection
(a)(1) and the exclusions under subsection (d), determine whether to designate
any additional facility as a chemical source or remove the designation of any
particular facility as a chemical source.
(2)In addition to the periodic review required under
paragraph (1), the Secretary may, after considering the criteria established
under subsection (a)(1) and the exclusions under subsection (d), designate a
facility as chemical source or remove the designation of any facility as a
chemical source.
(3)
(A)Facilities
becoming operational
(i)Each facility described in clause (ii) shall file a
petition with the Secretary for a determination on whether that facility should
be designated as a chemical source not later than 180 days after the later
of—
(I)the date of the
promulgation of final rules under subsection (a)(1); or
(II)the date that
facility becomes operational.
(ii)A facility described in this clause is a facility—
(I)that becomes
operational on or after the date of the designation of chemical sources under
subsection (a)(2); and
(II)at which a
threshold quantity of a substance of concern is present.
(B)
(i)Each facility described in clause (ii) shall submit a
petition to the Secretary for a determination on whether that facility should
be designated as a chemical source not later than 180 days after the later
of—
(I)the date of the
promulgation of final regulations under subsection (a)(1); or
(II)the date on which
the threshold quantity of a substance of concern is first present at that
facility.
(ii)A facility described in this clause is a facility—
(I)for which the
owner or operator is not required to complete a risk management plan under
section 112(r)(7)(B)(ii) of the Clean Air
Act (42 U.S.C. 7412(r)(7)(B)(ii));
(II)that is
operational before the date of the promulgation of the final rules establishing
criteria for designating chemical sources under subsection (a)(1); and
(III)at which a
threshold quantity of a substance of concern is present.
(C)The
Secretary, in consultation with the Administrator of the Environmental
Protection Agency, shall establish a mechanism for the Secretary to receive
notice in a timely fashion of a facility required by the Administrator to
complete a risk management plan in accordance with section 112(r)(7)(B)(ii) of
the Clean Air Act (42 U.S.C.
7412(r)(7)(B)(ii)).
(D)The
Secretary may promulgate regulations to carry out this paragraph.
(i)Designation,
Exemption, and Adjustment of Threshold Quantities of Substances of
Concern
(1)The Secretary may, by regulation—
(A)designate a
chemical substance, in a particular threshold quantity, as a substance of
concern under this Act;
(B)exempt a chemical
substance from designation as a substance of concern under this Act; and
(C)establish or
revise the threshold quantity for a chemical substance to be designated a
substance of concern.
(2)In
designating or exempting a chemical substance or establishing or revising the
threshold quantity of a chemical substance under paragraph (1), the Secretary
shall consider the potential extent of death, injury, or serious adverse
effects to human health and safety or the environment and the potential impact
on national security, the economy, or critical infrastructure that would result
from a terrorist incident involving the chemical substance.
(3)The
Secretary may make a designation, exemption, or revision under paragraph (1) in
the regulations promulgated under subsection (a)(1).
4.Vulnerability
assessments, site security plans, and emergency response plans
(a)
(1)Not later than 1 year after the date of enactment of this
Act, the Secretary shall promulgate regulations that require the owner or
operator of each chemical source—
(A)to conduct a
vulnerability assessment, evaluating the vulnerability of the chemical source
to a terrorist incident;
(B)to prepare and
implement a site security plan that addresses the risks identified in the
vulnerability assessment; and
(C)to prepare and
implement an emergency response plan or prepare and implement an addendum to an
existing emergency response plan to include response planning for a terrorist
incident.
(2)The regulations promulgated under paragraph (1)—
(A)shall be
risk-based, performance based, and flexible; and
(B)shall include
consideration of—
(i)the criteria
established by the Secretary under section 3(a)(1);
(ii)cost and
technical feasibility; and
(iii)scale of
operations.
(3)Co-located
chemical sourcesThe regulations promulgated under paragraph (1)
shall permit the development and implementation of coordinated vulnerability
assessments, site security plans, and emergency response plans in any case in
which more than 1 chemical source is operating at a single location or at
contiguous locations, including cases in which a chemical source is under the
control of more than 1 owner or operator.
(4)Sharing of
threat informationTo the maximum extent practicable under
applicable authority and in the interests of national security, the Secretary
shall provide State and local government officials and an owner or operator of
a chemical source with threat information that is relevant to the chemical
source in particular or to the chemical sector in general.
(5)Contents of
vulnerability assessmentA vulnerability assessment shall—
(A)be based on a
rigorous methodology developed or endorsed by the Secretary;
(B)incorporate any
threat information provided under paragraph (4);
(C)address the
appropriate security performance standards established by Secretary under
section 3(f); and
(D)include an
analysis of—
(i)physical
security;
(ii)communication
systems;
(iii)electronic,
computer, or other automated systems which are utilized by the chemical
source;
(iv)the sufficiency
of security measures relative to the threats and consequences of a terrorist
incident, including vulnerabilities at the chemical source arising from the
nature and quantities of substances of concern and the use, storage, or
handling of substances of concern; and
(v)other areas, as
determined by the Secretary.
(6)Contents of site
security planA site security plan shall—
(A)indicate the tier
applicable to the chemical source, as determined by the Secretary under section
3(e)(2);
(B)address the risks
identified in the vulnerability assessment;
(C)address the
appropriate security performance standards established by Secretary under
section 3(f);
(D)include security
measures appropriate to the tier level of the chemical source that address the
risks identified in the vulnerability assessment and are sufficient to deter,
to the maximum extent practicable, a terrorist incident or a substantial threat
of such an incident;
(E)include security
measures to mitigate the consequences of a terrorist incident;
(F)describe, at a
minimum, particular plans, processes, or procedures that could be used by or at
the chemical source in the event of a terrorist incident;
(G)identify the roles
and responsibilities of employees at the chemical source;
(H)identify steps
taken by the chemical source to coordinate security measures and plans for
response to a terrorist incident with Federal, State, and local government
officials, including law enforcement and first responders and specify the
security officer who will be the point of contact for the National Incident
Management System and Federal, State, and local law enforcement and first
responders; and
(I)describe the
training, drills (including periodic unannounced drills), exercises, and
security actions of persons at the chemical source, to be carried out under the
plan to deter, to the maximum extent practicable, a terrorist incident or a
substantial threat of such an incident.
(7)Contents of
emergency response plan
(A)An emergency response plan shall—
(i)specifically
address the consequences of a terrorist incident identified in the
vulnerability assessment prepared under paragraph (4);
(ii)be consistent
with the site security plan prepared under paragraph (6); and
(iii)identify the
roles and responsibilities of employees at the chemical source.
(B)Relationship to
the national contingency plan
(i)Except as provided in clause (ii), an emergency response
plan shall be a Federally approved or certified emergency response plan in
effect on the date of enactment of this Act that is—
(I)consistent with
guidance provided by the National Response Team established under the National
Contingency Plan created under section 105 of the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9605); and
(II)modified to
satisfy the requirements of subparagraph (A).
(ii)The owner or operator of a chemical source that does not
have a Federally approved or certified emergency response plan in effect on the
date of enactment of this Act shall follow the guidance provided by the
National Response Team established under the National Contingency Plan created
under section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9605) in developing an emergency response plan to meet the specific
considerations of that chemical source.
(C)Protection of
security informationIf, in order meet the requirements of this
paragraph, the owner or operator of a chemical source is required to include in
an emergency response plan information, the release of which would be
detrimental to the security of the source, that information shall be separated
in a security addendum to the emergency response plan.
(8)Guidance to
chemical sourcesNot later than 1 year after the date of
enactment of this Act, the Secretary shall publish guidance to assist owners
and operators of chemical sources in complying with this Act, including advice
on aspects of compliance with this Act that may be unique to small business
concerns.
(b)Certification
and Submission
(1)Not later than 6 months after the date of the
promulgation of regulations under subsection (a)(1), each owner or operator of
a chemical source shall certify in writing to the Secretary that the owner or
operator has completed a vulnerability assessment and has developed and
implemented, or is implementing, a site security plan and an emergency response
plan in accordance with this Act.
(2)Not
later than 6 months after the date of the promulgation of regulations under
subsection (a)(1), an owner or operator of a chemical source shall submit to
the Secretary copies of the vulnerability assessment, site security plan, and
emergency response plan of the chemical source for review.
(3)If an owner or operator of a chemical source fails to
certify or submit a vulnerability assessment, site security plan, or emergency
response plan in accordance with paragraph (2), the Secretary may issue an
order requiring the certification and submission of a vulnerability assessment,
site security plan, or emergency response plan in accordance with this
section.
(c)
(1)The Secretary shall review the vulnerability assessment,
site security plan, and emergency response plan submitted by the owner or
operator of a chemical source under subsection (b)(2) to determine whether the
assessment and plans and the implementation of such plans comply with this
section.
(2)The
Secretary shall disapprove a vulnerability assessment, site security plan, or
emergency response plan submitted under subsection (b)(2) if the Secretary
determines that the vulnerability assessment, site security plan, emergency
response plan, or the implementation of such plans does not comply with this
section.
(3)
(A)If the Secretary disapproves a vulnerability assessment,
site security plan, or emergency response plan of a chemical source under
paragraph (2), the Secretary—
(i)shall provide the
owner or operator of the chemical source a written notification of the
determination that includes a clear explanation of deficiencies in the
vulnerability assessment, site security plan, emergency response plan, or
implementation of the site security plan;
(ii)shall consult
with the owner or operator of the chemical source to identify appropriate steps
to achieve compliance;
(iii)if, following
consultation under clause (ii), the owner or operator of the chemical source
does not achieve compliance by such date as the Secretary determines to be
appropriate under the circumstances, shall issue an order requiring the owner
or operator to correct specified deficiencies; and
(iv)if the owner or
operator continues to be in noncompliance, may issue an order for the chemical
source to cease operation.
(B)Compliance for
higher risk tiers
(i)Not later than 1 year after the later of the date of the
promulgation of regulations under subsection (a)(1) and the date of the
promulgation of regulations under section 3(e), the Secretary shall—
(I)determine whether
to approve, disapprove, or modify the vulnerability assessment, site security
plan, and emergency response plan submitted under subsection (b)(2) by a
chemical source in a higher risk tier; and
(II)determine whether
a chemical source in a higher risk tier is operating in compliance with the
site security plan and emergency response plan submitted by the chemical source
under subsection (b)(2).
(ii)The
Secretary may issue an order to a chemical source in a higher risk tier to
cease operation if the Secretary—
(I)disapproves the
vulnerability assessment, site security plan, or emergency response plan
submitted under subsection (b)(2) by a chemical source in a higher risk tier;
or
(II)determines that a
chemical source in a higher risk tier is not operating in compliance with the
site security plan or emergency response plan submitted by the chemical source
under subsection (b)(2).
(C)Compliance for
other tiersNot later than 5 years after the date of the
submission of the vulnerability assessment, site security plan, and emergency
response plan by a chemical source that is not in a higher risk tier under
subsection (b)(2), the Secretary shall complete the review of the assessment
and plans and make a determination regarding compliance with this
section.
(D)The Secretary may conduct subsequent reviews and
determinations of compliance under this Act for a chemical source on a schedule
as determined to be appropriate by the Secretary, with priority given to
chemical sources in a higher risk tier.
(d)Submission and
Certification of Changes
(1)Not later than 60 days after the date on which a change
is made to a chemical source that affects the security of the chemical source,
the owner or operator of the chemical source shall—
(A)notify the
Secretary in writing;
(B)provide a
description of the change at the chemical source; and
(C)either—
(i)request a waiver
from resubmitting the vulnerability assessment, security plan, and emergency
response plan; or
(ii)review and
resubmit the vulnerability assessment, site security plan, and emergency
response plan, with the appropriate modifications.
(2)If the Secretary determines that additional modification
of a vulnerability assessment, site security plan, or emergency response plan
is required, the Secretary shall—
(A)provide a written
notice to the chemical source owner or operator, requiring modifications
addressing any matters specified in the notice; and
(B)provide the owner
or operator of the chemical source not less than 60 days after the date of the
notice under subparagraph (A) to submit proposed modifications.
(3)Temporary
security measuresDuring the period before the Secretary approves
a modified vulnerability assessment, site security plan, or emergency response
plan or issues a waiver, an owner or operator of a chemical source shall ensure
temporary security measures are implemented.
(e)MTSA-Regulated
Facilities
(1)Except as provided in paragraph (4), a chemical source
that is also a MTSA-regulated facility shall comply with this Act.
(2)
(A)A chemical source that is also a MTSA-regulated facility
shall review its facility security assessment, facility security plan, and
emergency response plan and make any modifications necessary to comply with the
security performance standards established for the tier applicable to the
chemical source under section 3(f) and the requirements of subsection
(a)(1).
(B)Not
later than 180 days after the date on which the Secretary promulgates
regulations under subsection (a)(1), the owner or operator of a chemical source
that is also a MTSA-regulated facility shall—
(i)submit the
facility security assessment, facility security plan, and emergency response
plan, with any appropriate modifications under subparagraph (A), for the
chemical source to the Federal Maritime Security Coordinator for the area in
which the chemical source is located and the Secretary for approval; and
(ii)certify in
writing to the Federal Maritime Security Coordinator for the area in which the
facility is located and the Secretary that—
(I)the facility
security assessment and facility security plan for the facility are in
compliance with the security performance standards for the tier applicable to
the chemical source under section 3(f) and the requirements under subsection
(a)(1); and
(II)the owner or
operator has submitted an approved or certified emergency response plan
required under chapter 701 of title 46, United States Code, to the Federal
Maritime Security Coordinator for the area in which the facility is
located.
(3)In accordance with the procedures under subsection (c),
the Secretary, in consultation with the Federal Maritime Security Coordinator
for the area in which a chemical source that is also a MTSA-regulated facility
is located, shall determine whether a facility security assessment and facility
security plan submitted under paragraph (2)(B) meets the security performance
standards established by the Secretary under section 3(f) and the requirements
under subsection (a)(1).
(4)A
chemical source that is a MTSA-regulated facility is exempt from section 6(d)
of this Act.
(5)Integration and
coordination
(A)The Secretary shall implement this Act and chapter 701 of
title 46, United States Code, in as consistent and integrated manner as
possible.
(B)The Secretary shall ensure coordination between the Under
Secretary for Preparedness and the Coast Guard Commandant in carrying out this
Act.
(f)Alternative
Security Programs
(1)The Secretary may consider a petition submitted by any
person that describes—
(A)alternate
procedures, protocols, and standards established by an industry entity,
Federal, State, or local government authorities, or other applicable laws;
and
(B)the scope of
chemical sources to which such program would apply.
(2)The
Secretary may review the requirements of any alternative security program
submitted under paragraph (1) to determine whether a vulnerability assessment,
security plan, or emergency response plan prepared under that program meets
each required element under subsection (a)(1) for a vulnerability assessment,
security plan, and emergency response plan submitted under subsection
(b)(2).
(3)
(A)If the Secretary determines that a vulnerability
assessment, security plan, or emergency response plan prepared under that
alternative security program meets each required element under subsection
(a)(1) for a vulnerability assessment, security plan, and emergency response
plan submitted under subsection (b)(2), the Secretary shall notify the
petitioner that any chemical source covered by that program may submit an
assessment or plan prepared under that program without further revision.
(B)If the Secretary determines that a vulnerability
assessment, security plan, or emergency response plan prepared under that
alternative security program does not meet each required element under
subsection (a)(1) for a vulnerability assessment, security plan, and emergency
response plan submitted under subsection (b)(2)—
(i)the Secretary may
specify what modifications would be necessary to meet the required elements for
a vulnerability assessment, security plan, or emergency response plan submitted
under subsection (b)(2); and
(ii)a chemical source
covered by that program may submit the assessment or plans with the specified
modifications.
(C)Any
action taken by the Secretary under this paragraph shall be made by rule,
regulation, or order.
(4)Nothing
in this subsection shall relieve the Secretary of the obligation—
(A)to review the
vulnerability assessment, security plan, and emergency response plan submitted
by each chemical source under this section according to the performance
standards established by section 3(f) and the requirements under subsection
(a)(1); or
(B)to approve or
disapprove each submission on an individual basis.
(g)
(1)On the timeline established by the Secretary under
paragraph (2), the owner or operator of a chemical source shall—
(A)review the
adequacy of the vulnerability assessment, site security plan, and emergency
response plan for the chemical source;
(B)certify to the
Secretary that the chemical source has completed the review and implemented any
necessary modifications to the vulnerability assessment, site security plan, or
emergency response plan; and
(C)provide to the
Secretary a description of any changes to the vulnerability assessment, site
security plan, or emergency response plan.
(2)The
Secretary shall establish a timeline for review appropriate to the tier level
of the chemical source that requires a review—
(A)for a higher risk
tier, not later than 1 year after the date of approval of a vulnerability
assessment, site security plan, and emergency response plan under subsection
(b)(1) and not less often than every 3 years thereafter; and
(B)for all other
tiers, not later than 5 years after the date of approval of a vulnerability
assessment, site security plan, and emergency response plan under subsection
(b)(1) and not less often than every 5 years thereafter.
5.Recordkeeping;
site inspections; production of information
(a)The
owner or operator of a chemical source shall retain a copy of the vulnerability
assessment, site security plan, and emergency response plan for the chemical
source for not less than 5 years after the date on which such assessment or
plan was approved by the Secretary under section 4(c).
(b)
(1)In carrying out this Act, the Secretary or the designee
of the Secretary, on presentation of credentials, shall have a right of entry
to, on, or through—
(A)the premises of a
chemical source; and
(B)any premises on
which any record required to be maintained under subsection (a) is
located.
(2)
(A)The Secretary shall, at such times and places as the
Secretary determines to be appropriate, conduct, or require the conduct of,
facility security audits and inspections, the requirements of which may be
established by rule, regulation, or order.
(B)Audits
and inspections under subparagraph (A) shall ensure and evaluate compliance
with this Act.
(c)In carrying out this Act, the Secretary may require the
submission of, or, on presentation of credentials, may at reasonable times seek
access to and copy—
(1)any records,
reports, or other information described in subsection (a); and
(2)any other
documentation necessary for the—
(A)review or analysis
of a vulnerability assessment or security plan; or
(B)implementation of
a security plan.
(d)If
the Secretary determines that an owner or operator of a chemical source is not
maintaining, producing, or permitting access to records or to the premises of
the chemical source as required by this section, the Secretary may issue an
order requiring compliance with the relevant provisions of this section.
6.Infrastructure
Protection and implementation
(a)
(1)The Secretary shall ensure effective chemical security
planning and response by providing the necessary infrastructure, leadership,
technical assistance, guidance, and accountability for security planning and
response in areas surrounding chemical sources.
(2)The Secretary shall model the regulations promulgated,
organizations established, and actions taken under this section on the
requirements of sections 70102, 70103, 70104, and 70112 of title 46, United
States Code.
(3)The Secretary, and those in positions assigned under
this section, shall coordinate with other Federal area security and response
committees in order to provide a unified and effective Federal effort for
security and response organizational infrastructure for the Nation. Nothing in
this section shall supersede any other Federal area security or response
committee and the entities established under this section shall be organized to
complement such other committees.
(b)
(1)Not
later than 3 months after the date of enactment of this Act, the Secretary
shall establish an office under the Assistant Secretary for Infrastructure
Protection that shall be responsible for implementing and enforcing this
Act.
(2)The
Secretary, acting through the Assistant Secretary for Infrastructure
Protection, shall—
(A)provide
leadership, guidance, planning, technical assistance, resources, and conduct
oversight activities to establish an effective chemical security planning and
response infrastructure for the Nation;
(B)provide
leadership, personnel, training, equipment, other resources as necessary, and
technical assistance to—
(i)Federal, State and
local government agencies;
(ii)Infrastructure
Protection Regional Security Offices; and
(iii)Area Security
Committees, as requested by the Federal Area Security Coordinator;
(C)coordinate with
law enforcement agencies, first responders, and chemical sources regarding the
response to a potential or actual terrorist incident at a chemical
source;
(D)review and approve
each Area Security Plan submitted under subsection (d); and
(E)coordinate with
the Office of State and Local Government Coordination and Preparedness of the
Department, to ensure some homeland security grants administered by the
Department support the plans required under this section.
(c)Infrastructure
Protection Regional Security Offices
(1)Not later than 6 months after the date of enactment of
this Act, the Secretary shall establish in each Federal Emergency Management
Agency Region an Infrastructure Protection Regional Security Office, for
purposes of carrying out this Act and coordinating regional security, as
described in this section.
(2)Each Infrastructure Protection Regional Security Office
shall—
(A)consist of—
(i)the personnel of
the Infrastructure Protection Office of the Department within the region;
and
(ii)a regional
security advisory staff, to be appointed by the Secretary;
(B)review and approve
each Area Security Plan for the region to ensure coordination between regions
and States;
(C)oversee
implementation of this Act to ensure consistent implementation within the
region, in conjunction with the strategic mission and policies of, and guidance
from, the Department; and
(D)perform other
functions as assigned by the Secretary necessary to implement the requirements
of this Act or help protect other critical infrastructure.
(d)Area Security
Committees and Plans
(1)Designation of
areas and federal area security coordinators
(A)Not
later than 6 months after the date of enactment of this Act, the Secretary
shall designate geographic areas for the Area Committees established under
paragraph (2).
(B)In
designating areas under subparagraph (A), the Secretary shall ensure
that—
(i)except as provided
in subparagraph (C), all parts of the United States are included in an area;
and
(ii)no area is larger
than a single State, although an area may incorporate portions of more than 1
State, based on the organization and number of chemical sources in a geographic
area.
(C)Any
area designated under section 70103(a)(2)(G) of title 46, United States Code,
shall not be included in any area designated under this Act.
(2)Establishment
and designation
(A)There
is established for each area designated by the Secretary under paragraph (1) an
Area Security Committee, comprised of members appointed by the Secretary, in
consultation with State and local government officials, from qualified and
effected security and response personnel of Federal, State, and local
government agencies, chemical sources, local emergency planning and response
entities, other critical infrastructure sectors, and other appropriate
organizations.
(B)For
each area designated by the Secretary under paragraph (1), the Secretary shall
designate a Federal Area Security Coordinator with knowledge of and experience
in the activities required under this subsection.
(3)
(A)Each
Area Security Committee, under the direction of the Federal Area Security
Coordinator for the area assigned to such Area Security Committee,
shall—
(i)meet not less
frequently than twice per year;
(ii)prepare the Area
Security Plan described in paragraph (4) for that area and submit the Area
Security Plan to the Secretary for approval; and
(iii)coordinate with
Federal, State, and local government officials and chemical sources to enhance
the security and response planning of those officials and to assure effective
preplanning of joint security and response efforts, including exercises,
drills, evacuations, sheltering, and rescue.
(B)Each
Federal Area Security Coordinator shall, for the area assigned to such
official—
(i)conduct audits and
inspections of chemical sources under this Act;
(ii)provide
appropriate guidance and support to chemical sources; and
(iii)perform such
other duties as are required by the Area Security Committee or the
Secretary.
(4)
(A)Not later than 2 years after the date of enactment of
this Act, each Area Security Committee shall prepare and submit to the
Secretary for approval an Area Security Plan for the area assigned to such Area
Security Committee.
(B)The Area Security Plan shall—
(i)coordinate the
resources of the area assigned to the Area Security Committee to deter a
potential or actual terrorist incident at a chemical source in that area, or to
respond to a terrorist incident at a chemical source in that area;
(ii)coordinate with
the National Infrastructure Protection Plan, the National Response Plan, the
site security plan of any chemical source located in the area assigned to the
Area Security Committee, other appropriate national security and response
plans, and the Area Security Plans for contiguous areas;
(iii)reflect security
and response post-incident investigative reports, as determined by the
Secretary;
(iv)describe in
detail the responsibilities of an owner or operator of a chemical source (based
upon the approved site security plan for the chemical source) and of Federal,
State, and local government agencies in responding to potential or actual
terrorist incident at a chemical source operating in the area assigned to the
Area Security Committee;
(v)describe the area
covered by the plan, list the assets and resources available to respond to a
terrorist incident, and include any other information the Secretary
requires;
(vi)be updated
periodically by the Area Security Committee; and
(vii)provide for
coordination with the appropriate Federal, State and local government agencies
or members of local entities that plan for emergency releases from chemical
sources regarding how local populations that may be affected by a release are
provided with information, including evacuation planning, sheltering in place,
and areas of refuge.
(5)Not
later than 24 months after the date of enactment of this Act, the Secretary
shall—
(A)review each Area
Security Plan developed under paragraph (4);
(B)require amendments
to any plan that does not meet the requirements of this section; and
(C)approve each plan
that meets the requirements of this section.
(e)Area Exercises
and Drills
(1)The Secretary shall periodically conduct drills and
exercises, some without prior notice, including full functional and
communications exercises of security and response capability in each area for
which an Area Security Plan is required under this section and under the site
security plan and emergency response plans of relevant chemical sources.
(2)The drills and exercises conducted under paragraph
(1) may include participation by—
(A)Federal, State,
and local government agencies, including law enforcement and first
responders;
(B)the owner and
operator of any chemical source in the area;
(C)members of local
entities that plan for emergency releases;
(D)representatives of
other critical infrastructure; and
(E)other participants
as determined appropriate by the Secretary or the designee of the
Secretary.
(3)The
Secretary shall publish annual reports on drills under this subsection,
including assessments of the effectiveness of the plans described in paragraph
(1), lessons learned, and a list of any amendments made to improve any plan
described in paragraph (1). The annual reports shall not include protected
information.
7.Heightened
security measures
(a)If the Secretary determines that additional security
measures are necessary to respond to a threat assessment or to a specific
threat against the chemical sector, the Secretary may issue an order to the
owner or operator of a chemical source setting forth mandatory security
measures. Only the Secretary or the designee of the Secretary may issue an
order under this section.
(b)
(1)Any order issued by the Secretary under subsection (a)
shall be effective upon issuance and shall remain in effect for a period of not
more than 90 days, unless the Secretary files an action in an appropriate
United States district court before the expiration of that 90-day
period.
(2)If the Secretary files an action described in paragraph
(1), an order issued by the Secretary under subsection (a) shall remain in
effect for 14 days in addition to the 90-day period under paragraph (1), or for
such shorter or longer period as may be authorized by the court in which such
action is filed.
8.
(a)
(1)The
Secretary may impose an administrative penalty of not more than $25,000 per
day, and not more than a maximum of $1,000,000 per year, for failure to comply
with an order or directive issued by the Secretary under this Act.
(2)Before imposing a penalty under paragraph (1), the
Secretary shall provide to the person against which the penalty is to be
assessed—
(A)a written notice
of the proposed penalty; and
(B)not later than 30
days after the date on which the person receives the notice, the opportunity to
request a hearing on the proposed penalty.
(3)The
Secretary shall promulgate regulations establishing procedures for
administrative hearings and appropriate review, including necessary
deadlines.
(b)
(1)The Secretary may bring an action in a United States
district court against any owner or operator of a chemical source that violates
or fails to comply with any order or directive issued by the Secretary under
this Act or a site security plan approved by the Secretary under this
Act.
(2)In
any action under paragraph (1), a court may issue an order for injunctive
relief and may award a civil penalty of not more than $50,000 for each day on
which a violation occurs or a failure to comply continues.
(c)An owner or operator of a chemical source who knowingly
violates any order issued by the Secretary under this Act or knowingly fails to
comply with a site security plan approved by the Secretary under this Act shall
be fined not more than $50,000 for each day of such violation, imprisoned not
more than 2 years, or both.
9.Protection of
information
(a)
(1)Records of the
department
(A)Except as provided in subsection (b), the Department
shall not be required under section 552 of title 5, United States Code, to make
available to the public a record described in subparagraph (B).
(B)A record described in this subparagraph is—
(i)a vulnerability
assessment, site security plan, or a security addendum to an emergency response
plan obtained by the Department under section 4;
(ii)an area security
plan required under section 6(d)(4);
(iii)materials
developed or produced by a chemical source exclusively in preparation of
documents referred to in clause (i) and obtained by the Department under
section 4; or
(iv)any record
developed exclusively for the purposes of this Act by the Department, or
produced exclusively for the purposes of this Act by a chemical source and
obtained by the Department under section 4, to the extent that the record
contains information that—
(I)describes a
specific chemical source or the specific vulnerabilities of a chemical
source;
(II)was taken from a
record described in clause (i) or (ii) or from a copy of such record in
possession of the chemical source; and
(III)would, if
disclosed, be detrimental to the security of a chemical source.
(2)Records of other
agencies
(A)A Federal agency other than the Department shall not be
required under section 552 of title 5, United States Code, to make available to
the public a record described in subparagraph (C).
(B)If a Federal agency other than the Department receives a
request under section 552 of title 5, United States Code, for a record
described in clause (i) or clause (ii)(I) of subparagraph (C), the agency,
without consideration by the agency of whether subparagraph (C)(ii)(II) is
satisfied—
(i)shall not disclose
the record; and
(ii)shall refer the
request to the Department for processing and response.
(C)A record described in this subparagraph is any
record—
(i)described in
paragraph (1)(B) that was shared by the Department with the agency under this
section; and
(ii)produced
exclusively for the purposes of this Act by the agency, to the extent that the
record contains information that—
(I)describes a
specific chemical source or the specific vulnerabilities of a chemical
source;
(II)was taken from a
record described in clause (i); and
(III)would, if
disclosed, be detrimental to the security of a chemical source.
(3)Records of state
or local government agencies
(A)A State or local government agency shall not be required
under any State or local law providing for public access to information to make
available to the public a record described in subparagraph (B).
(B)A record described in this subparagraph is any
record—
(i)described in
paragraph (1)(B) that was shared by the Department with the State or local
government agency under section 6; and
(ii)produced
exclusively for the purposes of this Act by the State or local government
agency, to the extent that the record contains information that—
(I)describes a
specific chemical source or the specific vulnerabilities of a chemical source;
and
(II)was taken from a
record described in clause (i) or (ii) or from a copy of such document in
possession of the chemical source.
(b)
(1)
(A)Except as provided in subparagraph (B), the following
records shall be made available to the public under section 552 of title 5,
United States Code:
(i)A
certification under section 4(b)(1).
(ii)Order for
failure to complyAn order under section 4(b)(3).
(iii)A certificate of compliance under paragraph
(2).
(iv)The identity of any chemical source and the owner or
operator of the chemical source for which any other order or any approval or
disapproval is issued under this Act, together with information identifying the
applicable order, approval, or disapproval.
(B)
(i)If the Secretary makes a specific finding and
determination with respect to a particular chemical source that releasing any
record described in subparagraph (A) regarding that chemical source would
increase the risk to the security of any chemical source, the Secretary may
establish a period, not to exceed 6 months, during which the record shall not
be made available to the public under section 552 of title 5, United States
Code.
(ii)Not
more than 60 days before to the expiration of a period established under clause
(i) (or an extension of such period under this clause), the Secretary may
extend the period for an additional period not to exceed 6 months if the
Secretary makes a specific finding and determination with respect to a
particular chemical source that releasing any record described in subparagraph
(A) regarding that chemical source would increase the risk to the security of
any chemical source.
(iii)If the Secretary determines not to allow a record to be made
available to the public under clause (i) or extends the period of nondisclosure
under clause (ii), the Secretary shall submit to the Comptroller General of the
United States, for inclusion and evaluation in the reports under section 12, a
detailed statement—
(I)identifying the
chemical source;
(II)describing the
record;
(III)explaining the
basis for the Secretary’s determination; and
(IV)describing any
security measures being implemented by the chemical source.
(2)Certification of
complianceWhen the Secretary determines that a chemical source
is in compliance with the requirements of this Act, the Secretary shall issue
and make available for public inspection a certificate of approval that
contains the following statement: ____ (chemical source name) ____ is in
compliance with the Chemical Facility Anti-Terrorism Act of
2005.
.
(3)Not less frequently than once each year, the Secretary
shall submit to Congress a public report on the performance of chemical sources
under the Act, in the aggregate, including a description of common problems,
solutions, and industry best practices.
(c)
(1)The Secretary, in consultation with the Director of the
Office of Management and Budget and appropriate Federal law enforcement and
intelligence officials and in a manner consistent with existing protections for
sensitive or classified information, shall, by regulation, establish
confidentiality protocols for maintenance and use of records described in
paragraphs (1)(B), (2)(C), and (3)(B) of subsection (a).
(2)Requirements for
protocolsThe protocols established under paragraph (1) shall
ensure, to the maximum extent practicable, that—
(A)the records shall
be maintained in a secure location; and
(B)access to records
shall be limited—
(i)as may be
necessary to—
(I)enable enforcement
of this Act; or
(II)address an
imminent and substantial threat to security, health, safety, or the
environment;
(ii)to State or local
law enforcement officials, first responders, or other State or local government
officials granted access to records for the purpose of carrying out this Act;
and
(iii)to other persons
granted access for the purpose of carrying out this Act.
(3)Other procedures
in protocolsThe protocols established under paragraph (1) shall
also—
(A)provide for the
labeling of any record described in paragraph (1)(B), (2)(C), or (3)(B) of
subsection (a), to enable the sensitive information in such record to be traced
back to the specific document from which the information was derived;
(B)accommodate the
making of disclosures under sections 2302(b)(8) and 7211 of title 5, United
States Code, and provide guidance to employees as to how to make such
disclosures without compromising security;
(C)include procedures
applicable to a request under section 552 of title 5, United States Code,
requiring that any portion of a record that reasonably may be separated shall
be provided to a person requesting the record after redaction of any portion
that is exempt from disclosure;
(D)establish
procedures by which a record described in paragraph (1)(B), (2)(C), or (3)(B)
of subsection (a) may become subject to the requirements regarding public
disclosure under section 552 of title 5, United States Code, when, because of
changed circumstances or the passage of time, disclosure of the record would
not be detrimental to the security of a chemical source.
(d)Process for
Reporting Problems
(1)Establishment of
a reporting processThe Secretary shall establish, and provide
information to the public regarding, a process by which any person may submit a
report to the Secretary regarding problems, deficiencies, or vulnerabilities at
a chemical source.
(2)The
Secretary shall keep confidential the identity of a person who submits a report
under paragraph (1) and any such report shall be treated as a record described
in subsection (a)(1)(B), to the extent that it does not consist of publicly
available information.
(3)Acknowledgment
of receiptIf a report submitted under paragraph (1) identifies
the person making the report, the Secretary shall respond promptly to such
person and acknowledge receipt of the report.
(4)Steps to address
problemsThe Secretary shall review and consider the information
provided in any report submitted under paragraph (1) and shall take whatever
steps the Secretary determines appropriate to address any problems,
deficiencies, or vulnerabilities identified.
(5)No employer may discharge any employee or otherwise
discriminate against any employee with respect to the compensation to, or
terms, conditions, or privileges of the employment of, such employee because
the employee (or a person acting pursuant to a request of the employee) made a
report under paragraph (1).
(6)The Comptroller General of the United States shall, in
the reports under section 12—
(A)describe the
number and type of problems, deficiencies, and vulnerabilities reported on
under this subsection; and
(B)evaluate the
Secretary’s efforts in addressing such problems, deficiencies, and
vulnerabilities.
(e)Nothing in this Act shall be construed to
limit—
(1)the right of an
individual to make any disclosure—
(A)protected or
authorized under section 2302(b)(8) or 7211 of title 5, United States Code;
or
(B)to the Special
Counsel, the inspector general of an agency, or any other employee designated
by the head of an agency to receive similar disclosures; or
(2)the applicability
or enforcement of sections 818 and 820 of the Transportation, Treasury, Housing
and Urban Development, the Judiciary, and Independent Agencies Appropriations
Act, 2006 (Public Law 109–115).
(f)Materials Not
Held by AgenciesNothing in this Act shall be construed to limit
the rights or obligations of any chemical source, any entity that is not a
Federal, State, or local government agency in possession of a record described
in paragraphs (1)(B), (2)(C), and (3)(B) of subsection (a), or any individual,
with respect to the withholding or disclosure of any information or record held
by the chemical source, entity, or individual, regardless of whether or not the
Department has received or possesses similar or identical information or a
similar or identical record.
(g)Disclosure of
Independently Furnished Information
(1)Nothing in this Act shall be construed to affect the
handling, treatment, or disclosure of a record or information obtained from a
chemical source under any other law.
(2)Nothing in this Act shall be construed to affect any
authority or obligation of an agency to disclose any record that the agency
receives independently of a record that is exempt under this section from the
public disclosure requirements under section 552 of title 5, United States
Code, regardless of whether or not the Department has an identical or similar
record that is so exempt.
(h)Other
Obligations Unaffected
(1)Nothing in this section affects any obligation of the
owner or operator of a chemical source to submit or make available information
to a Federal, State, or local government agency under, or otherwise to comply
with, any other law.
(2)No use of
information to gain governmental benefitThe owner or operator of
a chemical source may not use any record described in paragraph (1)(B), (2)(C),
or (3)(B) of subsection (a) to satisfy any legal requirement or obligation
other than a requirement under this Act or to obtain any grant, permit,
contract, benefit (including agency forbearance, loans, or deduction or
modifications of agency penalties or rulings) or other governmental
approval.
(i)Availability of
Information to CongressNothing in this Act shall be construed to
authorize information to be withheld from Congress.
(j)Penalties for
Unauthorized DisclosureAny officer or employee of a Federal,
State, or local government agency who, in a manner or to an extent not
authorized by law, knowingly discloses any record described in paragraph
(1)(B), (2)(C), or (3)(B) of subsection (a) shall—
(1)be imprisoned not
more than 1 year, fined under chapter 227 of title 18, United States Code, or
both; and
(2)if an officer or
employee of the Government, be removed from Federal office or
employment.
10.
(1)Nothing in this Act shall preclude or deny any right of
any State or political subdivision thereof to adopt or enforce any regulation,
requirement, or standard of performance respecting chemical facility security
that is more stringent than a regulation, requirement, or standard of
performance in effect under this Act, or shall otherwise impair any right or
jurisdiction of the States with respect to chemical facilities within such
States unless there is an actual conflict between a provision of this Act and
the law of the State.
(2)Nothing in this Act shall preclude or deny the right
of any State or political subdivision thereof to adopt or enforce any
regulation, requirement, or standard of performance, including air or water
pollution requirements, that are directed at problems other than reducing
damage from terrorist attacks.
11.Chemical
security reportingNot later
than 6 months after the date of enactment of this Act, the Secretary shall
submit to the Committee on Homeland Security and Governmental Affairs of the
Senate and the Committee on Homeland Security and the Committee on Energy and
Commerce of the House of Representatives an update of the national strategy for
the chemical sector required to be submitted by the Secretary to the Committee
on Appropriations of the Senate and the Committee on Appropriations of the
House of Representatives by February 10, 2006.
12.Review by the
Government Accountability Office
(a)The
Secretary shall provide access to the Government Accountability Office of any
document or information required to be submitted to, generated by, or otherwise
in the possession of the Department under this Act.
(b)
(1)Not later than January 1 of the first year following the
calendar year in which the regulations are promulgated under section 4(a)(1),
and on January 1 of each year thereafter, the Government Accountability Office
shall submit a report described under paragraph (2) to—
(A)the Committee on
Homeland Security and Governmental Affairs of the Senate; and
(B)the Committee on
Homeland Security of the House of Representatives and the Committee on Energy
and Commerce of the House of Representatives.
(2)Each
report submitted under paragraph (1) shall include—
(A)a review of site
security plans, vulnerability assessments, and emergency response plans under
this Act; and
(B)a determination of
whether such plans and assessments are in compliance with this Act.
13.Authorization of
appropriationsThere are
authorized to be appropriated such sums as are necessary to carry out this
Act.
1.This Act may be cited as the
Chemical Facility Anti-Terrorism Act
of 2006
.
2.In this Act:
(1)The term chemical source means a facility
designated as a chemical source by the Secretary under section 3.
(2)The term critical infrastructure has
the meaning given the term in section 2 of the Homeland Security Act of 2002 (6
U.S.C. 101).
(3)The
term Department means the Department of Homeland Security.
(4)The
term environment has the meaning given the term in section 101 of
the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601).
(5)The term higher risk tier means a tier
designated by the Secretary as a higher risk tier under section 3(e)(3).
(6)MTSA-regulated
facilitiesThe term MTSA-regulated facility means a
facility subject to the security requirements under chapter 701 of title 46,
United States Code (commonly known as the Maritime Transportation
Security Act
).
(7)The term owner or operator means any person
who owns, leases, operates, controls, or supervises a chemical source.
(8)The term protected information
means—
(A)a vulnerability
assessment, site security plan, an area security plan required under section
6(d)(4), and a security addendum to the emergency response plan under section
4(a)(7)(C), prepared for the purposes of this Act and obtained by the
Department under section 4;
(B)materials obtained by the
Department and developed or produced by a chemical source exclusively in
preparation of records, documents, or information referred to under
subparagraph (A) or an emergency response plan;
(C)any document or other
information obtained by the Secretary or a State or local government from a
chemical source in accordance with this Act, to the extent that the document or
information contains information that—
(i)describes a specific
chemical source or the specific vulnerabilities of a chemical source;
(ii)was taken from a record
described under subparagraph (A) or (B) or from a copy of such record in the
possession of the chemical source; and
(iii)would, if disclosed, be
detrimental to the security of a chemical source; and
(D)any document prepared by,
or provided to a Federal agency or State or local government, to the extent
that the document contains information that—
(i)describes a specific
chemical source or the specific vulnerabilities of a chemical source;
(ii)was taken from a record
described under subparagraph (A) or (B) or from a copy of such record in the
possession of the chemical source; and
(iii)would, if disclosed, be
detrimental to the security of a chemical source.
(9)The
term release has the meaning given the term in section 101 of the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601).
(10)The
term Secretary means the Secretary of Homeland Security.
(11)
(A)The term security measure means an action to
ensure or enhance the security of a chemical source against a terrorist
incident.
(B)The
term security measure, with respect to a chemical source, includes
measures such as—
(i)employee training and
background and identification authentication checks;
(ii)the limitation and
prevention of access to the controls of the chemical source;
(iii)the protection of the
perimeter of the chemical source;
(iv)the installation and
operation of intrusion detection sensors;
(v)the implementation of
measures to increase computer or computer network security;
(vi)the implementation of
other security-related measures to ensure or enhance the security of a chemical
source from a terrorist incident;
(vii)the implementation of
measures and controls to prevent, protect against, or reduce the consequences
of a terrorist incident, including—
(I)contingency and
evacuation plans;
(II)early warning systems;
and
(III)the relocation,
hardening of the storage or containment, modification, processing,
substitution, or reduction of substances of concern; and
(viii)the conduct of any
similar security-related activity, as determined by the Secretary.
(12)The term substance of concern means—
(A)a chemical substance
present at a chemical source in quantities equal to or exceeding the threshold
quantities for the chemical substance, as defined in or established under
paragraphs (3) and (5) of section 112(r) of the Clean Air Act (42 U.S.C. 7412(r)); and
(B)any other chemical
substance designated as a substance of concern by the Secretary under section
3(i), including ammonium nitrate, in quantities equal to or exceeding the
threshold quantities established under section 3(i), based on the potential
extent of death, injury, or serious adverse effects to human health and safety
or the environment or the potential impact on national or economic security or
critical infrastructure caused by a terrorist incident involving the chemical
substance.
(13)The
term terrorism has the meaning given the term in section 2 of the
Homeland Security Act of 2002 (6 U.S.C. 101).
(14)The term terrorist incident means—
(A)a terrorist attack
against a chemical source;
(B)a release from a chemical
source into the environment of a substance of concern that is caused by an act
of terrorism; and
(C)the theft or diversion of
a substance of concern by a person for off-site release in furtherance of an
act of terrorism.
3.Designation and tiering
of chemical sources
(a)Not
later than 1 year after the date of enactment of this Act, the Secretary
shall—
(1)promulgate regulations
establishing criteria for designating chemical sources by using the risk
factors described in subsection (b) and by evaluating the types of facilities
described in subsection (c) that shall be considered in designating chemical
sources; and
(2)designate chemical
sources in existence as of that date.
(b)Risk factors To Be
ConsideredIn establishing criteria under subsection (a)(1) for
designating chemical sources, the Secretary shall consider—
(1)the perceived threat to a
facility, including a consideration of adversary capabilities and intent,
preparedness, target attractiveness, and deterrence capabilities;
(2)the potential extent and
likelihood of death, injury, or serious adverse effects to human health and
safety or to the environment caused by a terrorist incident at a
facility;
(3)the threats to or
potential impact on national security or critical infrastructure caused by a
terrorist incident at a facility;
(4)the potential threats or
harm to the economy that would result from a terrorist incident at a facility,
including whether a facility is the sole supplier, or the producer of a high
percentage, of a product that is critical to the economy, the chemical
industry, or national security;
(5)the proximity of a
facility to population centers;
(6)the nature and quantity
of substances of concern at a facility; and
(7)such other
security-related factors as the Secretary determines to be appropriate and
necessary to protect the public health and safety, critical infrastructure, and
national and economic security.
(c)In establishing criteria under subsection (a)(1) for
designating chemical sources, the Secretary shall—
(1)consider any facility
that is a stationary source (as defined in section 112(r)(2) of the Clean Air
Act (42 U.S.C. 7412(r)(2))) for which the owner or operator is required to
complete a risk management plan in accordance with section 112(r)(7)(B)(ii) of
the Clean Air Act (42 U.S.C. 7412(r)(7)(B)(ii));
(2)consider any other
facility that produces, uses, or stores a substance of concern at which a risk
factor described in subsection (b) is present; and
(3)determine whether any
additional facility (including, as of the date of the determination, any
facility that is operational and any facility that will become operational in
the future) shall be designated chemical sources under this Act.
(d)In
designating facilities as chemical sources, the Secretary shall not include any
facility owned or operated by the Department of Defense or the Department of
Energy, or any facility owned or operated by a licensee or certificate holder
of the Nuclear Regulatory Commission.
(e)
(1)Not later than 1 year after the date of enactment of this
Act, the Secretary shall promulgate rules establishing a risk-based tier system
of chemical sources that—
(A)shall be based on the
criteria established by the Secretary under subsection (a)(1);
(B)consists of several tiers
of chemical sources;
(C)to the maximum extent
practicable, enables a chemical source to develop appropriate site-specific
measures to meet the security performance standards established under
subsection (f) for the tier applicable to the chemical source; and
(D)provides guidance to the
owner or operator of a chemical source regarding the steps that would enable
the chemical source to move to a lower risk tier, if the owner or operator
seeks to move to a lower risk tier.
(2)Not later than 1 year after the date of enactment of this
Act, the Secretary shall determine the tier applicable to each chemical source
designated under subsection (a)(2).
(3)The Secretary shall designate 1 or more tiers established
under paragraph (1) as higher risk tiers.
(f)Security performance
standards
(1)Not later than 1 year after the date of enactment of this
Act, the Secretary shall establish security performance standards appropriate
to the risk-based tiers established under subsection (e).
(2)The
security performance standards established under paragraph (1) shall—
(A)set increasingly strict
security requirements as the level of risk for the tier increases;
(B)enable a chemical source
to select security measures that, in combination, satisfy the security
performance standards established by the Secretary; and
(C)be based on the criteria
in section 4(a)(2).
(3)Guidance and
consultation
(A)On the date on which the Secretary establishes security
performance standards under paragraph (1), and based on the risk factors to be
considered under subsection (b), the Secretary shall provide guidance to a
chemical source regarding the types of security measures that, if applied,
could satisfy the security performance standards.
(B)The owner or operator of a chemical source shall have
flexibility to employ different security measures than those contained in the
guidance described in subparagraph (A) if such measures satisfy the security
performance standards established for the tier applicable to the chemical
source.
(C)At the request of the owner or operator of a chemical
source assigned to a higher risk tier under subsection (e)(2), the Secretary
shall provide consultation on the types of security measures that, if applied,
could satisfy the security performance standards.
(g)Not later than 180 days after the date of enactment of
this Act, the Secretary shall notify facilities that may be designated as
chemical sources regarding the review of facilities and designation of chemical
sources to be conducted under this Act, including the timeline for such review
and designation.
(h)Subsequent
Determinations
(1)Periodic review of
determinationsNot later than 3 years after the designation of
chemical sources under subsection (a)(2), and every 3 years thereafter, the
Secretary shall, after considering the criteria established under subsection
(a)(1) and the exclusions under subsection (d), determine whether to designate
any additional facility as a chemical source or remove the designation of any
particular facility as a chemical source.
(2)In addition to the periodic review required under
paragraph (1), the Secretary may, after considering the criteria established
under subsection (a)(1) and the exclusions under subsection (d), designate a
facility as a chemical source or remove the designation of any facility as a
chemical source.
(3)
(A)Facilities becoming
operational
(i)Each facility described in clause (ii) shall file a
petition with the Secretary for a determination on whether that facility should
be designated as a chemical source not later than 180 days after the later
of—
(I)the date of the
promulgation of final rules under subsection (a)(1); or
(II)the date that facility
becomes operational.
(ii)A facility described in this clause is a facility—
(I)that becomes operational
on or after the date of the designation of chemical sources under subsection
(a)(2); and
(II)at which a threshold
quantity of a substance of concern is present.
(B)
(i)Each facility described in clause (ii) shall submit a
petition to the Secretary for a determination on whether that facility should
be designated as a chemical source not later than 180 days after the later
of—
(I)the date of the
promulgation of final regulations under subsection (a)(1); or
(II)the date on which the
threshold quantity of a substance of concern is first present at that
facility.
(ii)A facility described in this clause is a facility—
(I)for which the owner or
operator is not required to complete a risk management plan under section
112(r)(7)(B)(ii) of the Clean Air Act (42 U.S.C. 7412(r)(7)(B)(ii));
(II)that is operational
before the date of the promulgation of the final rules establishing criteria
for designating chemical sources under subsection (a)(1); and
(III)at which a threshold
quantity of a substance of concern is present.
(C)The
Secretary, in consultation with the Administrator of the Environmental
Protection Agency, shall establish a mechanism for the Secretary to receive
notice in a timely fashion of a facility required by the Administrator to
complete a risk management plan in accordance with section 112(r)(7)(B)(ii) of
the Clean Air Act (42 U.S.C. 7412(r)(7)(B)(ii)).
(D)The
Secretary may promulgate regulations to carry out subparagraphs (A) and
(B).
(i)Designation, exemption,
and adjustment of threshold quantities of substances of concern
(1)The Secretary may, by regulation—
(A)designate a chemical
substance, in a particular threshold quantity, as a substance of concern under
this Act;
(B)exempt a chemical
substance from designation as a substance of concern under this Act; and
(C)establish or revise the
threshold quantity for a chemical substance to be designated a substance of
concern.
(2)In
designating or exempting a chemical substance or establishing or revising the
threshold quantity of a chemical substance under paragraph (1), the Secretary
shall consider the potential extent of death, injury, or serious adverse
effects to human health and safety or the environment and the potential impact
on national security, the economy, or critical infrastructure that would result
from a terrorist incident involving the chemical substance.
(3)The
Secretary may make a designation, exemption, or revision under paragraph (1) in
the regulations promulgated under subsection (a)(1).
4.Vulnerability
assessments, site security plans, and emergency response plans
(a)
(1)Not later than 1 year after the date of enactment of this
Act, the Secretary shall promulgate regulations that require the owner or
operator of each chemical source—
(A)to conduct a
vulnerability assessment, evaluating the vulnerability of the chemical source
to a terrorist incident;
(B)to prepare and implement
a site security plan that addresses the risks identified in the vulnerability
assessment; and
(C)to prepare and implement
an emergency response plan or prepare and implement an addendum to an existing
emergency response plan to include response planning for a terrorist
incident.
(2)The regulations promulgated under paragraph (1)—
(A)shall be risk-based,
performance-based, and flexible; and
(B)shall include
consideration of—
(i)the criteria established
by the Secretary under section 3(a)(1);
(ii)cost and technical
feasibility; and
(iii)scale of
operations.
(3)Co-located chemical
sourcesThe regulations promulgated under paragraph (1) shall
permit the development and implementation of coordinated vulnerability
assessments, site security plans, and emergency response plans in any case in
which more than 1 chemical source is operating at a single location or at
contiguous locations, including cases in which a chemical source is under the
control of more than 1 owner or operator.
(4)Sharing of threat
informationTo the maximum extent practicable under applicable
authority and in the interests of national security, the Secretary shall
provide State and local government officials and an owner or operator of a
chemical source with threat information that is relevant to the chemical source
in particular or to the chemical sector in general.
(5)Contents of
vulnerability assessmentA vulnerability assessment shall—
(A)employ or be based on a
rigorous methodology developed or endorsed by the Secretary;
(B)incorporate any threat
information provided under paragraph (4);
(C)address the appropriate
security performance standards established by Secretary under section 3(f);
and
(D)include an analysis
of—
(i)physical security;
(ii)communication
systems;
(iii)the vulnerability of
programmable electronic devices, computers, computer or communications networks
or other automated systems which are utilized by the chemical source;
(iv)the sufficiency of
security measures in place when the vulnerability assessment is prepared
relative to the threats and consequences of a terrorist incident, including
vulnerabilities at the chemical source arising from the nature and quantities
of substances of concern and the use, storage, or handling of substances of
concern; and
(v)other areas, as
determined by the Secretary.
(6)Contents of site
security planA site security plan shall—
(A)indicate the tier
applicable to the chemical source, as determined by the Secretary under section
3(e)(2);
(B)include security measures
that, in combination, address—
(i)the risks identified in
the vulnerability assessment; and
(ii)the appropriate security
performance standards established by Secretary under section 3(f) for the tier
applicable to the chemical source, as determined by the Secretary under section
3(e)(2);
(C)include security
measures—
(i)sufficient to deter, to
the maximum extent practicable, a terrorist incident or a substantial threat of
such an incident;
(ii)to mitigate the
consequences of a terrorist incident; and
(iii)to increase the
security of programmable electronic devices, computers, computer or
communications networks, and other automated systems.
(D)describe, at a minimum,
particular plans, processes, or procedures that could be used by or at the
chemical source in the event of a terrorist incident;
(E)identify the roles and
responsibilities of employees at the chemical source;
(F)identify steps taken by
the chemical source to coordinate security measures and plans for response to a
terrorist incident with Federal, State, and local government officials,
including law enforcement and first responders and specify the security officer
who will be the point of contact for the National Incident Management System
and Federal, State, and local law enforcement and first responders;
(G)describe the training,
drills (including periodic unannounced drills), exercises, and security actions
of persons at the chemical source, to be carried out under the plan to deter,
to the maximum extent practicable, a terrorist incident or a substantial threat
of such an incident; and
(H)describe security
measures that would be implemented under an order issued by the Secretary or
the designee of the Secretary under section 7(a).
(7)Contents of emergency
response plan
(A)An emergency response plan shall—
(i)specifically address the
consequences of a terrorist incident identified in the vulnerability assessment
prepared under paragraph (5);
(ii)be consistent with the
site security plan prepared under paragraph (6); and
(iii)identify the roles and
responsibilities of employees at the chemical source.
(B)Relationship to the
national contingency plan
(i)Except as provided in clause (ii), an emergency response
plan shall be a Federally approved or certified emergency response plan in
effect on the date of enactment of this Act that is—
(I)consistent with guidance
provided by the National Response Team established under the National
Contingency Plan created under section 105 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9605); and
(II)modified to satisfy the
requirements of subparagraph (A).
(ii)The owner or operator of a chemical source that does not
have a Federally approved or certified emergency response plan in effect on the
date of enactment of this Act shall follow the guidance provided by the
National Response Team established under the National Contingency Plan created
under section 105 of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9605) in developing an emergency response
plan to meet the specific considerations of that chemical source.
(C)Protection of security
informationIf, in order to meet the requirements of this
paragraph, the owner or operator of a chemical source is required to include in
an emergency response plan information, the release of which would be
detrimental to the security of the source, that information shall be separated
in a security addendum to the emergency response plan.
(8)Guidance and
consultation to chemical sources
(A)On the date on which the Secretary promulgates
regulations under paragraph (1), the Secretary shall provide guidance to assist
owners and operators of chemical sources in complying with this Act, including
advice on aspects of compliance with this Act that may be unique to small
business concerns.
(B)At the request of the owner or operator of a chemical
source assigned to a higher risk tier under section 3(e)(2), the Secretary
shall provide consultation on achieving compliance with this Act, including
consultation on the guidance provided under subparagraph (A).
(b)Certification and
submission
(1)Not later than 6 months after the date of the
promulgation of regulations under subsection (a)(1), each owner or operator of
a chemical source shall certify in writing to the Secretary that the owner or
operator has completed a vulnerability assessment and has developed and
implemented, or is implementing, a site security plan and an emergency response
plan in accordance with this Act.
(2)Not
later than 6 months after the date of the promulgation of regulations under
subsection (a)(1), an owner or operator of a chemical source shall submit to
the Secretary copies of the vulnerability assessment, site security plan, and
emergency response plan of the chemical source for review.
(3)If an owner or operator of a chemical source fails to
certify or submit a vulnerability assessment, site security plan, or emergency
response plan in accordance with paragraph (2), the Secretary may issue an
order requiring the certification and submission of a vulnerability assessment,
site security plan, or emergency response plan in accordance with this
section.
(c)
(1)The Secretary shall—
(A)review the vulnerability
assessment, site security plan, and emergency response plan submitted by the
owner or operator of a chemical source under subsection (b)(2) to determine
whether the assessment and plans and the implementation of such plans comply
with this section;
(B)provide written notice to
the owner or operator of the chemical source regarding the determination of
whether the assessment and plans described in subparagraph (A) comply with this
section; and
(C)provide written notice to
the owner or operator of the chemical source, if the Secretary determines the
implementation of a plan described in subparagraph (A) does not comply with
this section.
(2)Disapproval of site
security plansNotwithstanding any other provision of this
subsection, the Secretary may not disapprove a site security plan submitted
under subsection (b)(2) based on the presence or absence of a particular
security measure, if the site security plan satisfies the security performance
standards established under section 3(f) for the tier applicable to the
chemical source.
(3)
(A)If the Secretary disapproves a vulnerability assessment,
site security plan, or emergency response plan of a chemical source under
paragraph (1), or determines that the implementation of such a plan does not
comply with this section, the Secretary—
(i)shall provide the owner
or operator of the chemical source a written notification of the determination
that includes a clear explanation of deficiencies in the vulnerability
assessment, site security plan, emergency response plan, or implementation of
the site security plan;
(ii)shall consult with the
owner or operator of the chemical source to identify appropriate steps to
achieve compliance;
(iii)if, following
consultation under clause (ii), the owner or operator of the chemical source
does not achieve compliance by such date as the Secretary determines to be
appropriate under the circumstances, shall issue an order requiring the owner
or operator to correct specified deficiencies; and
(iv)if the owner or operator
continues to be in noncompliance, may issue an order for the chemical source to
cease operation.
(B)Compliance for higher
risk tiers
(i)Not later than 9 months after the later of the date of the
promulgation of regulations under subsection (a)(1) and the date of the
promulgation of regulations under section 3(e), the Secretary shall—
(I)conduct a preliminary
review of the vulnerability assessment, site security plan, and emergency
response plan submitted under subsection (b)(2) by a chemical source assigned
to a higher risk tier under section 3(e)(2); and
(II)provide notice and
assistance in achieving compliance with this Act to any chemical source
assigned to a higher risk tier under section 3(e)(2) for which the Secretary
determines the vulnerability assessment, site security plan, or emergency
response plan may not be approved under clause (ii).
(ii)Not
later than 1 year after the later of the date of the promulgation of
regulations under subsection (a)(1) and the date of the promulgation of
regulations under section 3(e), the Secretary shall determine whether to
approve, disapprove, or modify the vulnerability assessment, site security
plan, and emergency response plan submitted under subsection (b)(2) by a
chemical source assigned to a higher risk tier under section 3(e)(2).
(iii)The
Secretary shall determine whether implementation of the plans described in
clause (ii) complies with this section.
(iv)The
Secretary may issue an order to a chemical source assigned to a higher risk
tier under section 3(e)(2) to cease operation if the Secretary—
(I)disapproves the
vulnerability assessment, site security plan, or emergency response plan
submitted by such chemical source under subsection (b)(2); or
(II)determines that the
implementation of a plan described in subclause (I) does not comply with this
section.
(C)Compliance for other
tiersNot later than 5 years after the date of the submission of
the vulnerability assessment, site security plan, and emergency response plan
under subsection (b)(2) by a chemical source that is not assigned to a higher
risk tier under section 3(e)(2), the Secretary shall complete the review of the
assessment, plans, and implementation of such plans and make a determination
regarding compliance with this section.
(D)The Secretary may conduct subsequent reviews and
determinations of compliance under this Act for a chemical source on a schedule
as determined to be appropriate by the Secretary, with priority given to
chemical sources assigned to a higher risk tier under section 3(e)(2).
(d)Submission and
certification of changes
(1)Not later than 60 days after the date on which a change
is made to a chemical source that would have a materially detrimental effect on
the security of the chemical source, the owner or operator of the chemical
source shall—
(A)notify the Secretary in
writing;
(B)provide a description of
the change at the chemical source;
(C)certify to the Secretary
that the chemical source has completed the review and implemented any necessary
modifications to the vulnerability assessment, site security plan, or emergency
response plan; and
(D)provide to the Secretary
a description of any changes to the vulnerability assessment, site security
plan, or emergency response plan.
(2)If the Secretary determines that additional modification
of a vulnerability assessment, site security plan, or emergency response plan
is required, the Secretary shall—
(A)provide a written notice
to the chemical source owner or operator, requiring modifications addressing
any matters specified in the notice; and
(B)provide the owner or
operator of the chemical source not less than 60 days after the date of the
notice under subparagraph (A) to submit proposed modifications.
(3)Temporary security
measuresDuring the period before any revised security measures
are implemented, an owner or operator of a chemical source shall ensure
temporary security measures are implemented to address, to the maximum extent
practicable, the vulnerabilities identified by the owner or operator of the
chemical source during preparation of the assessment or plans.
(e)MTSA-regulated
facilities
(1)Except as provided in paragraph (4), a chemical source
that is also a MTSA-regulated facility shall comply with this Act.
(2)
(A)A chemical source that is also a MTSA-regulated facility
shall review its facility security assessment, facility security plan, and
emergency response plan and make any modifications necessary to comply with the
security performance standards established for the tier applicable to the
chemical source under section 3(f) and the requirements under subsection
(a)(1).
(B)Not
later than 180 days after the date on which the Secretary promulgates
regulations under subsection (a)(1), the owner or operator of a chemical source
that is also a MTSA-regulated facility shall—
(i)submit the facility
security assessment, facility security plan, and emergency response plan, with
any appropriate modifications under subparagraph (A), for the chemical source
to the Federal Maritime Security Coordinator for the area in which the chemical
source is located and the Secretary for approval; and
(ii)certify in writing to
the Federal Maritime Security Coordinator for the area in which the facility is
located and the Secretary that—
(I)the facility security
assessment and facility security plan for the facility are in compliance with
the security performance standards for the tier applicable to the chemical
source under section 3(f) and the requirements under subsection (a)(1);
and
(II)the owner or operator
has submitted an approved or certified emergency response plan required under
chapter 701 of title 46, United States Code, to the Federal Maritime Security
Coordinator for the area in which the facility is located.
(3)In accordance with the procedures under subsection (c),
the Secretary, in consultation with the Federal Maritime Security Coordinator
for the area in which a chemical source that is also a MTSA-regulated facility
is located, shall determine whether a facility security assessment and facility
security plan submitted under paragraph (2)(B) meets the security performance
standards established by the Secretary under section 3(f) and the requirements
under subsection (a)(1).
(4)A
chemical source that is a MTSA-regulated facility is exempt from section 6(d)
of this Act.
(5)Integration and
coordination
(A)The Secretary shall implement this Act and chapter 701 of
title 46, United States Code, in as consistent and integrated manner as
possible.
(B)The Secretary shall ensure coordination between the Under
Secretary for Preparedness and the Coast Guard Commandant in carrying out this
Act.
(f)Alternative security
programs
(1)The Secretary may consider a petition submitted by any
person that describes—
(A)alternate procedures,
protocols, and standards established by an industry entity, Federal, State, or
local government authorities, or other applicable laws; and
(B)the scope of chemical
sources to which such program would apply.
(2)The
Secretary may review the requirements of any alternative security program
submitted under paragraph (1) to determine whether a vulnerability assessment,
security plan, or emergency response plan prepared under that program meets
each required element under subsection (a)(1) for a vulnerability assessment,
security plan, and emergency response plan submitted under subsection
(b)(2).
(3)
(A)If the Secretary determines that a vulnerability
assessment, security plan, or emergency response plan prepared under that
alternative security program meets each required element under subsection
(a)(1) for a vulnerability assessment, security plan, and emergency response
plan submitted under subsection (b)(2), the Secretary shall notify the
petitioner that any chemical source covered by that program may submit an
assessment or plan prepared under that program without further revision.
(B)If the Secretary determines that a vulnerability
assessment, security plan, or emergency response plan prepared under that
alternative security program does not meet each required element under
subsection (a)(1) for a vulnerability assessment, security plan, and emergency
response plan submitted under subsection (b)(2)—
(i)the Secretary may specify
what modifications would be necessary to meet the required elements for a
vulnerability assessment, security plan, or emergency response plan submitted
under subsection (b)(2); and
(ii)a chemical source
covered by that program may submit the assessment or plans with the specified
modifications.
(C)Any
action taken by the Secretary under this paragraph shall be made by rule,
regulation, or order.
(4)Nothing
in this subsection shall relieve the Secretary of the obligation—
(A)to review the
vulnerability assessment, security plan, and emergency response plan submitted
by each chemical source under this section according to the performance
standards established by section 3(f) and the requirements under subsection
(a)(1); or
(B)to approve or disapprove
each submission on an individual basis.
(g)
(1)On the timeline established by the Secretary under
paragraph (2), the owner or operator of a chemical source shall—
(A)review the adequacy of
the vulnerability assessment, site security plan, and emergency response plan
for the chemical source;
(B)certify to the Secretary
that the chemical source has completed the review and implemented any necessary
modifications to the vulnerability assessment, site security plan, or emergency
response plan; and
(C)provide to the Secretary
a description of any changes to the vulnerability assessment, site security
plan, or emergency response plan.
(2)The
Secretary shall establish a timeline for review appropriate to the tier level
of the chemical source that requires a review—
(A)for a higher risk tier,
not later than 1 year after the date of approval of a vulnerability assessment,
site security plan, and emergency response plan under subsection (c)(1) and not
less often than every 3 years thereafter; and
(B)for all other tiers, not
later than 5 years after the date of approval of a vulnerability assessment,
site security plan, and emergency response plan under subsection (c)(1) and not
less often than every 5 years thereafter.
5.Recordkeeping; site
inspections; production of information
(a)The
owner or operator of a chemical source shall retain a copy of the vulnerability
assessment, site security plan, and emergency response plan for the chemical
source for not less than 5 years after the date on which such assessment or
plan was approved by the Secretary under section 4(c).
(b)
(1)In carrying out this Act, the Secretary or the designee
of the Secretary, on presentation of credentials, shall have a right of entry
to, on, or through—
(A)the premises of a
chemical source; and
(B)any premises on which any
record required to be maintained under subsection (a) is located.
(2)
(A)The Secretary shall, at such times and places as the
Secretary determines to be appropriate, conduct, or require the conduct of,
facility security audits and inspections, the requirements of which may be
established by rule, regulation, or order.
(B)Audits
and inspections under subparagraph (A) shall ensure and evaluate compliance
with this Act.
(C)
(i)Not later than 1 year after the date of submission of the
vulnerability assessment, site security plan, and emergency response plan under
section 4(b)(2) by the owner or operator of a chemical source assigned to a
higher risk tier under section 3(e)(2), and every year thereafter, the
Secretary shall conduct an audit or inspection of such chemical source.
(ii)Federal area security
coordinator auditsAn audit or inspection by a Federal Area
Security Coordinator shall qualify as an audit or inspection under clause
(i).
(iii)Exemption from annual
audits and inspections
(I)The Secretary may exempt a chemical source from annual
audits or inspections under this subparagraph, if the chemical source has been
found in compliance with this Act by the Secretary based upon 5 consecutive
years of audits or inspections.
(II)If the Secretary exempts a chemical source under this
clause, during the 5-year period after the date of granting such exemption, and
during each 5-year period thereafter, the Secretary shall conduct not less than
1 audit or unannounced inspection of such chemical source.
(c)In carrying out this Act, the Secretary may require the
submission of, or, on presentation of credentials, may at reasonable times seek
access to and copy—
(1)any records, reports, or
other information described in subsection (a); and
(2)any other documentation
necessary for the—
(A)review or analysis of a
vulnerability assessment or security plan; or
(B)implementation of a
security plan.
(d)If the Secretary determines that an owner
or operator of a chemical source is not maintaining, producing, or permitting
access to records or to the premises of the chemical source as required by this
section, the Secretary may issue an order requiring compliance with the
relevant provisions of this section.
6.Infrastructure
protection and implementation
(a)
(1)The Secretary shall ensure effective chemical security
planning and response by providing the necessary infrastructure, leadership,
technical assistance, guidance, and accountability for security planning and
response in areas surrounding chemical sources.
(2)The Secretary shall model the regulations promulgated,
organizations established, and actions taken under this section on the
requirements of sections 70102, 70103, 70104, and 70112 of title 46, United
States Code.
(3)The Secretary, and those in positions assigned under
this section, shall coordinate with other Federal area security and response
committees in order to provide a unified and effective Federal effort for
security and response organizational infrastructure for the Nation. Nothing in
this section shall supersede any other Federal area security or response
committee and the entities established under this section shall be organized to
complement such other committees.
(b)
(1)Not
later than 3 months after the date of enactment of this Act, the Secretary
shall establish an office under the Assistant Secretary for Infrastructure
Protection that shall be responsible for implementing and enforcing this
Act.
(2)The
Secretary, acting through the Assistant Secretary for Infrastructure
Protection, shall—
(A)provide leadership,
guidance, planning, technical assistance, resources, and conduct oversight
activities to establish an effective chemical security planning and response
infrastructure for the Nation;
(B)provide leadership,
personnel, training, equipment, other resources as necessary, and technical
assistance to—
(i)Federal, State and local
government agencies;
(ii)Infrastructure
Protection Regional Security Offices; and
(iii)Area Security
Committees, as requested by the Federal Area Security Coordinator;
(C)coordinate with law
enforcement agencies, first responders, and chemical sources regarding the
response to a potential or actual terrorist incident at a chemical
source;
(D)review and approve each
Area Security Plan submitted under subsection (d); and
(E)coordinate with the
Office of State and Local Government Coordination and Preparedness of the
Department, to ensure some homeland security grants administered by the
Department support the plans required under this section.
(c)Infrastructure
protection regional security offices
(1)Not later than 6 months after the date of enactment of
this Act, the Secretary shall establish in each Federal Emergency Management
Agency Region (or the regional office of a successor agency with responsibility
for emergency management, preparedness, and response) an Infrastructure
Protection Regional Security Office, for purposes of carrying out this Act and
coordinating regional security, as described in this section.
(2)Each Infrastructure Protection Regional Security Office
shall—
(A)consist of—
(i)the personnel of the
Infrastructure Protection Office of the Department within the region;
and
(ii)a regional security
advisory staff, to be appointed by the Secretary;
(B)review and approve each
Area Security Plan for the region to ensure coordination between regions and
States;
(C)oversee implementation of
this Act to ensure consistent implementation within the region, in conjunction
with the strategic mission and policies of, and guidance from, the Department;
and
(D)perform other functions
as assigned by the Secretary necessary to implement the requirements of this
Act or help protect other critical infrastructure.
(d)Area security
committees and plans
(1)Designation of areas
and Federal area security coordinators
(A)Not
later than 6 months after the date of enactment of this Act, the Secretary
shall designate geographic areas for the Area Security Committees established
under paragraph (2).
(B)In
designating areas under subparagraph (A), the Secretary shall ensure
that—
(i)except as provided in
subparagraph (C), all parts of the United States are included in an area;
and
(ii)no area is larger than a
single State, although an area may incorporate portions of more than 1 State,
based on the organization and number of chemical sources in a geographic
area.
(C)Any
area designated under section 70103(a)(2)(G) of title 46, United States Code,
shall not be included in any area designated under this Act.
(2)Establishment and
designation
(A)There
is established for each area designated by the Secretary under paragraph (1) an
Area Security Committee, comprised of members appointed by the Secretary, in
consultation with State and local government officials, from qualified and
affected security and response personnel of Federal, State, and local
government agencies, chemical sources, local emergency planning and response
entities, other critical infrastructure sectors, and other appropriate
organizations.
(B)For
each area designated by the Secretary under paragraph (1), the Secretary shall
designate a Federal Area Security Coordinator with knowledge of and experience
in the activities required under this subsection.
(3)
(A)Each
Area Security Committee, under the direction of the Federal Area Security
Coordinator for the area assigned to such Area Security Committee,
shall—
(i)meet not less frequently
than twice each year;
(ii)prepare the Area
Security Plan described in paragraph (4) for that area and submit the Area
Security Plan to the Secretary for approval; and
(iii)coordinate with
Federal, State, and local government officials and chemical sources to enhance
the security and response planning of those officials and to assure effective
preplanning of joint security and response efforts, including exercises,
drills, evacuations, sheltering, and rescue.
(B)Each
Federal Area Security Coordinator shall, for the area assigned to such
official—
(i)conduct audits and
inspections of chemical sources under this Act;
(ii)provide appropriate
guidance and support to chemical sources; and
(iii)perform such other
duties as are required by the Area Security Committee or the Secretary.
(4)
(A)Not later than 2 years after the date of enactment of
this Act, each Area Security Committee shall prepare and submit to the
Secretary for approval an Area Security Plan for the area assigned to such Area
Security Committee.
(B)The Area Security Plan shall—
(i)coordinate the resources
of the area assigned to the Area Security Committee to deter a potential or
actual terrorist incident at a chemical source in that area, or to respond to a
terrorist incident at a chemical source in that area;
(ii)coordinate with the
National Infrastructure Protection Plan, the National Response Plan, the site
security plan of any chemical source located in the area assigned to the Area
Security Committee, other appropriate national security and response plans, and
the Area Security Plans for contiguous areas;
(iii)reflect security and
response post-incident investigative reports, as determined by the
Secretary;
(iv)describe in detail the
responsibilities of an owner or operator of a chemical source (based upon the
approved site security plan for the chemical source) and of Federal, State, and
local government agencies in responding to potential or actual terrorist
incident at a chemical source operating in the area assigned to the Area
Security Committee;
(v)describe the area covered
by the plan, list the assets and resources available to respond to a terrorist
incident, and include any other information the Secretary requires;
(vi)be updated periodically
by the Area Security Committee; and
(vii)provide for
coordination with the appropriate Federal, State and local government agencies
or members of local entities that plan for emergency releases from chemical
sources regarding how local populations that may be affected by a release are
provided with information, including evacuation planning, sheltering in place,
and areas of refuge.
(5)Not
later than 3 years after the date of enactment of this Act, the Secretary
shall—
(A)review each Area Security
Plan developed under paragraph (4);
(B)require amendments to any
plan that does not meet the requirements of this section; and
(C)approve each plan that
meets the requirements of this section.
(e)Area Exercises and
Drills
(1)The Secretary shall periodically conduct drills and
exercises, some without prior notice, including full functional and
communications exercises of security and response capability in each area for
which an Area Security Plan is required under this section and under the site
security plan and emergency response plans of relevant chemical sources.
(2)The drills and exercises conducted under paragraph
(1) may include participation by—
(A)Federal, State, and local
government agencies, including law enforcement and first responders;
(B)the owner and operator of
any chemical source in the area;
(C)members of local entities
that plan for emergency releases;
(D)representatives of other
critical infrastructure; and
(E)other participants as
determined appropriate by the Secretary or the designee of the
Secretary.
(3)The
Secretary shall publish annual reports on drills under this subsection,
including assessments of the effectiveness of the plans described in paragraph
(1), lessons learned, and recommendations, if any, to improve the programs,
plans, and procedures under this subsection. The annual reports shall not
include protected information.
(f)The
Secretary may promulgate such regulations as are necessary to carry out this
section.
7.Heightened security
measures
(a)If the Secretary determines, based on the risk factors
described in section 3(b), that additional security measures are necessary to
respond to a threat assessment or to a specific threat against the chemical
sector, the Secretary may issue an order to the owner or operator of a chemical
source to implement the heightened security measures described under section
4(a)(6)(H). Only the Secretary or the designee of the Secretary may issue an
order under this section.
(b)
(1)Any order issued by the Secretary under subsection (a)
shall be effective upon issuance and shall remain in effect for a period of not
more than 90 days, unless the Secretary files an action in an appropriate
United States district court before the expiration of that 90-day
period.
(2)If the Secretary files an action described in paragraph
(1), an order issued by the Secretary under subsection (a) shall remain in
effect for 14 days in addition to the 90-day period under paragraph (1), or for
such shorter or longer period as may be authorized by the court in which such
action is filed.
8.
(a)
(1)The
Secretary may impose an administrative penalty of not more than $25,000 for
each day, and not more than a maximum of $1,000,000 for each year, for failure
to comply with an order or directive issued by the Secretary under this
Act.
(2)Before imposing a penalty under paragraph (1), the
Secretary shall provide to the person against which the penalty is to be
assessed—
(A)a written notice of the
proposed penalty; and
(B)not later than 30 days
after the date on which the person receives the notice, the opportunity to
request a hearing on the proposed penalty.
(3)The
Secretary shall promulgate regulations establishing procedures for
administrative hearings and appropriate review, including necessary
deadlines.
(b)
(1)The Secretary may bring an action in a United States
district court against any owner or operator of a chemical source that violates
or fails to comply with any order or directive issued by the Secretary under
this Act or a site security plan approved by the Secretary under this
Act
(2)In
any action under paragraph (1), a court may issue an order for injunctive
relief and may award a civil penalty of not more than $50,000 for each day on
which a violation occurs or a failure to comply continues.
(c)An owner or operator of a chemical source who knowingly
and willfully violates any order issued by the Secretary under this Act or
knowingly and willfully fails to comply with a site security plan approved by
the Secretary under this Act shall be fined not more than $50,000 for each day
of such violation, imprisoned not more than 2 years, or both.
9.Protection of
information
(a)
(1)Records of the
DepartmentThe Department shall not be required under section 552
of title 5, United States Code, to make available to the public protected
information.
(2)Records of other
agenciesIf a Federal agency other than the Department receives a
request under section 552 of title 5, United States Code, for protected
information, that Federal agency—
(A)shall not disclose the
record; and
(B)shall refer the request
to the Department for processing and response.
(3)Records of State or
local government agenciesA State or local government agency
shall not be required under any State or local law providing for public access
to information to make available to the public protected information.
(b)Certifications and
orders
(1)
(A)Information not
disclosedExcept as provided in subparagraph (B), the following
records shall not be made available to the public under section 552 of title 5,
United States Code:
(i)A
certification under section 4(b)(1).
(ii)Order for failure to
complyAn order under section 4(b)(3).
(iii)A certificate of compliance under paragraph
(2).
(iv)Any other order or any notice of disapproval issued under
this Act.
(B)
(i)If the Secretary makes a specific finding and
determination with respect to a particular chemical source that releasing any
record described in subparagraph (A)(i) or (iii) regarding that chemical source
would not increase the risk to the security of any chemical source, the
Secretary may make the record available to the public under section 552 of
title 5, United States Code.
(ii)If the Secretary does not allow a record to be made available
to the public under this subsection, the Secretary shall submit to the
Comptroller General of the United States, for inclusion and evaluation in the
reports under section 12, a detailed statement—
(I)identifying the chemical
source;
(II)describing the
record;
(III)explaining the basis
for the Secretary’s determination; and
(IV)describing any security
measures being implemented by the chemical source.
(2)Certification of
complianceWhen the Secretary determines that a chemical source
is in compliance with the requirements of this Act, the Secretary shall issue a
certificate of approval that contains the following statement: ____
(chemical source name) ____ is in compliance with the Chemical Facility
Anti-Terrorism Act of 2006.
.
(3)Not less frequently than once each year, the Secretary
shall submit to Congress a public report on the performance of chemical sources
under the Act, in the aggregate, including a description of common problems,
solutions, and industry best practices.
(c)
(1)The Secretary, in consultation with the Director of the
Office of Management and Budget and appropriate Federal law enforcement and
intelligence officials and in a manner consistent with existing protections for
sensitive or classified information, shall, by regulation, establish
confidentiality protocols for maintenance and use of records containing
protected information.
(2)Requirements for
protocolsThe protocols established under paragraph (1) shall
ensure, to the maximum extent practicable, that—
(A)the records shall be
maintained in a secure location; and
(B)access to records shall
be limited—
(i)as may be necessary
to—
(I)enable enforcement of
this Act; or
(II)address an imminent and
substantial threat to security, health, safety, or the environment;
(ii)to State or local law
enforcement officials, first responders, or other State or local government
officials granted access to records for the purpose of carrying out this Act,
including providing such officials and first responders with information on the
extent to which security of chemical sources in the State or local area is
being achieved; and
(iii)to other persons
granted access for the purpose of carrying out this Act.
(3)Other procedures in
protocolsThe protocols established under paragraph (1) shall
also—
(A)provide for the labeling
of any record containing protected information to enable the sensitive
information in such record to be traced back to the specific document from
which the information was derived;
(B)accommodate the making of
disclosures under sections 2302(b)(8) and 7211 of title 5, United States Code,
and provide guidance to employees as to how to make such disclosures without
compromising security;
(C)include procedures
applicable to a request under section 552 of title 5, United States Code,
requiring that any portion of a record that reasonably may be separated shall
be provided to a person requesting the record after redaction of any portion
that is exempt from disclosure; and
(D)establish procedures by
which a record containing protected information may become subject to the
requirements regarding public disclosure under section 552 of title 5, United
States Code, when, because of changed circumstances or the passage of time,
disclosure of the record would not be detrimental to the security of a chemical
source.
(d)Process for reporting
problems
(1)Establishment of a
reporting processThe Secretary shall establish, and provide
information to the public regarding, a process by which any person may submit a
report to the Secretary regarding problems, deficiencies, or vulnerabilities at
a chemical source.
(2)The
Secretary shall keep confidential the identity of a person who submits a report
under paragraph (1) and any such report shall be treated as a record containing
protected information to the extent that it does not consist of publicly
available information.
(3)Acknowledgment of
receiptIf a report submitted under paragraph (1) identifies the
person making the report, the Secretary shall respond promptly to such person
and acknowledge receipt of the report.
(4)Steps to address
problemsThe Secretary shall review and consider the information
provided in any report submitted under paragraph (1) and shall take appropriate
steps under this Act to address any problems or deficiencies identified.
(5)No employer may discharge any employee or otherwise
discriminate against any employee with respect to the compensation to, or
terms, conditions, or privileges of the employment of, such employee because
the employee (or a person acting pursuant to a request of the employee) made a
report under paragraph (1).
(6)The Comptroller General of the United States shall, in
the reports under section 12—
(A)describe the number and
type of problems, deficiencies, and vulnerabilities reported on under this
subsection; and
(B)evaluate the Secretary’s
efforts in addressing such problems, deficiencies, and vulnerabilities.
(e)Nothing in this Act shall be construed to limit the
right of an individual to make any disclosure—
(1)protected or authorized
under section 2302(b)(8) or 7211 of title 5, United States Code;
(2)protected under any other
Federal or State law that shields the disclosing individual against retaliation
or discrimination for having made the disclosure in the public interest;
or
(3)to the Special Counsel,
the inspector general of an agency, or any other employee designated by the
head of an agency to receive similar disclosures.
(f)Materials not held by
agenciesNothing in this Act shall be construed to limit the
rights or obligations of any chemical source, any entity that is not a Federal,
State, or local government agency in possession of a record containing
protected information, or any individual, with respect to the withholding or
disclosure of any information or record held by the chemical source, entity, or
individual, regardless of whether or not the Department has received or
possesses similar or identical information or a similar or identical
record.
(g)Disclosure of
independently furnished information
(1)Nothing in this Act shall be construed to affect the
handling, treatment, or disclosure of a record or information obtained from a
chemical source under any other law.
(2)Nothing in this Act shall be construed to affect any
authority or obligation of an agency to disclose any record that the agency
receives independently of a record that is exempt under this section from the
public disclosure requirements under section 552 of title 5, United States
Code, regardless of whether or not the Department has an identical or similar
record that is so exempt.
(h)Other obligations
unaffected
(1)Nothing in this section affects any obligation of the
owner or operator of a chemical source to submit or make available information
to a Federal, State, or local government agency under, or otherwise to comply
with, any other law.
(2)No use of information
to gain governmental benefitThe owner or operator of a chemical
source may not use any record containing protected information to satisfy any
legal requirement or obligation other than a requirement under this Act or to
obtain any grant, permit, contract, benefit (including agency forbearance,
loans, or deduction or modifications of agency penalties or rulings), or other
governmental approval.
(i)Availability of
information to congressNothing in this Act shall be construed to
authorize information to be withheld from Congress.
(j)Penalties for
unauthorized disclosureAny officer or employee of a Federal,
State, or local government agency who, in a manner or to an extent not
authorized by law, knowingly discloses any record containing protected
information shall—
(1)be imprisoned not more
than 1 year, fined under chapter 227 of title 18, United States Code, or both;
and
(2)if an officer or employee
of the Government, be removed from Federal office or employment.
(k)Public availability of
information in reportsThe Government Accountability Office shall
not make any protected information available to the public in any report under
section 12, except as provided under subsection (b)(1) of this section.
10.
(a)Nothing in this Act shall preclude or deny any right of
any State or political subdivision thereof to adopt or enforce any regulation,
requirement, or standard of performance respecting chemical facility security
that is more stringent than a regulation, requirement, or standard of
performance in effect under this Act, or shall otherwise impair any right or
jurisdiction of the States with respect to chemical facilities within such
States unless there is an actual conflict between a provision of this Act and
the law of the State.
(b)Nothing in this Act shall preclude or deny the right
of any State or political subdivision thereof to adopt or enforce any
regulation, requirement, or standard of performance, including air or water
pollution requirements, that are directed at problems other than reducing
damage from terrorist attacks.
11.Chemical security
reportingNot later than 6
months after the date of enactment of this Act, the Secretary shall submit to
the Committee on Homeland Security and Governmental Affairs of the Senate and
the Committee on Homeland Security and the Committee on Energy and Commerce of
the House of Representatives an update of the national strategy for the
chemical sector required to be submitted by the Secretary to the Committee on
Appropriations of the Senate and the Committee on Appropriations of the House
of Representatives by February 10, 2006.
12.Review by the
Government Accountability Office
(a)The
Secretary shall provide access to the Government Accountability Office of any
document or information required to be submitted to, generated by, or otherwise
in the possession of the Department under this Act.
(b)
(1)Not later than January 1 of the first year following the
calendar year in which the regulations are promulgated under section 4(a)(1),
and on January 1 of each year thereafter, the Government Accountability Office
shall submit a report described under paragraph (2) to—
(A)the Committee on Homeland
Security and Governmental Affairs of the Senate; and
(B)the Committee on Homeland
Security of the House of Representatives and the Committee on Energy and
Commerce of the House of Representatives.
(2)Each
report submitted under paragraph (1) shall include—
(A)a review of site security
plans, vulnerability assessments, and emergency response plans under this Act;
and
(B)a determination of
whether such plans and assessments are in compliance with this Act.
13.
(a)Not
later than 60 days after the date of promulgation of a regulation under this
Act, any person may file a petition for judicial review relating to the
regulation with the United States Court of Appeals for the District of
Columbia.
(b)
(1)Except as provided in section 7(b), not later than 60
days after the date of a final agency action under this Act, the owner or
operator of a chemical source affected by such action may file a petition for
judicial review of the action or order with the United States district court
for the district in which—
(A)the chemical source is
located; or
(B)the owner or operator of
the chemical source has a principal place of business.
(2)The parties in any civil action commenced under paragraph
(1) shall be limited to—
(A)the owner or operator
filing the petition; and
(B)the Secretary.
(c)Except as provided in section 7(b) and subsections (a)
and (b) of this section, no final agency action by the Secretary (including
regulations) under this Act shall be subject to judicial review under chapter 7
of title 5, United States Code.
(d)On the filing of a petition under subsection (a) or (b),
the court shall review the regulation or other final action or order that is
the subject of the petition in accordance with chapter 7 of title 5, United
States Code.
(e)Nothing in this Act confers on any private person a right
of action against an owner or operator of a chemical source to enforce any
provision of this Act.
14.
(a)This section may be
cited as the Secure Handling of
Ammonium Nitrate Act of 2006
.
(b)Congress finds that—
(1)ammonium nitrate is an important fertilizer
used to produce a reliable and affordable food supply for the United States and
the world;
(2)in the wrong hands, ammonium nitrate may be
used for illegal activities;
(3)the production, importation, storage, sale,
and distribution of ammonium nitrate affects interstate and intrastate
commerce; and
(4)it is necessary to regulate the production,
storage, sale, and distribution of ammonium nitrate.
(c)In this section:
(1)The term ammonium nitrate means solid
ammonium nitrate that is chiefly the ammonium salt of nitric acid and contains
not less than 33 percent nitrogen by weight.
(2)The
term facility means any site where ammonium nitrate is produced or
sold.
(3)The
term handle means to produce or sell ammonium nitrate.
(4)The
term handler means any person that produces or sells ammonium
nitrate.
(5)The
term purchaser means any person who buys or takes ownership of
ammonium nitrate.
(d)Regulation of handling
and purchase of ammonium nitrate
(1)The Secretary shall
regulate the handling and purchase of ammonium nitrate to prevent the
misappropriation or use of ammonium nitrate in violation of law.
(2)The Secretary shall promulgate regulations
that require—
(A)handlers—
(i)to register facilities;
(ii)to sell or distribute ammonium nitrate only
to handlers and purchasers registered under this section; and
(iii)to maintain records of sale or distribution
that include the name, address, telephone number, and registration number of
the immediate subsequent purchaser of ammonium nitrate; and
(B)purchasers to be registered.
(3)Use of previously
submitted informationBefore
requiring a facility or handler to submit additional information for
registration under this subsection, the Secretary shall—
(A)request from the Attorney General, and the
Attorney General shall provide, any information previously submitted to the
Attorney General by the facility or handler under section 843 of title 18,
United States Code; and
(B)at the election of the facility or
handler—
(i)use the license issued under that section
instead of requiring additional information for registration under this
subsection; and
(ii)consider the license to fully comply with
the requirement for registration under this subsection.
(4)In promulgating regulations under this
subsection, the Secretary shall consult with the Secretary to Agriculture to
ensure that the access of agricultural producers to ammonium nitrate is not
unduly burdened.
(5)Protection of
informationNotwithstanding any other provision of this Act,
registration information under this section shall be treated as protected
information under this Act.
(e)The Secretary may promulgate regulations
that establish a process for periodic monitoring or auditing of handler records
pertaining to the sale or transfer of ownership of ammonium nitrate to
determine compliance with the requirements established under this
section.
(f)Administrative
provisions
(1)The Secretary—
(A)may enter into a
cooperative agreement with the Secretary of Agriculture, or the head of any
State department of agriculture or its designee involved in agricultural
regulation, in consultation with the State agency responsible for homeland
security, to carry out this section; and
(B)wherever possible, should
seek to use cooperation of State agricultural entities or their designees that
oversee handler operations when seeking cooperative agreements to implement the
registration and enforcement provisions of this section.
(2)
(A)The Secretary may delegate to a State the authority to
assist the Secretary in the administration and enforcement of this
section.
(B)On the request of the Governor of a State, the Secretary
shall delegate to the State the authority to carry out actions under subsection
(d) or (e), on a determination by the Secretary that the State is capable of
satisfactorily carrying out that subsection.
(C)If
the Secretary enters into an agreement with a State under this subsection to
delegate functions to the State, the Secretary shall provide to the State
adequate funds to enable the State to carry out the functions.
(g)
(1)It is unlawful for any
person to—
(A)fail to perform any duty required by this
section;
(B)violate the terms of registration under
this section;
(C)fail to keep any record, make any report,
or allow any inspection required by this section; or
(D)violate any sale or distribution order
issued under this section.
(2)
(A)A person that
violates this section may be assessed a civil penalty by the Secretary of not
more than $50,000 for each violation.
(B)Notice and opportunity
for a hearingNo civil
penalty shall be assessed under this subsection unless the person charged has
been given notice and opportunity for a hearing on the charge in the county,
parish, or incorporated city of residence of the person charged.
(3)Jurisdiction over
actions for civil damagesThe
district courts of the United States shall have exclusive jurisdiction over any
action for civil damages against a handler for any harm or damage that is
alleged to have resulted from the use of ammonium nitrate in violation of law
that occurred on or after the date of enactment of this Act.
15.Authorization of
appropriationsThere are
authorized to be appropriated such sums as are necessary to carry out this
Act.
June 26, 2006
Reported with an amendment