[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2868 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 2868

   To amend the Homeland Security Act of 2002 to extend, modify, and 
recodify the authority of the Secretary of Homeland Security to enhance 
    security and protect against acts of terrorism against chemical 
                  facilities, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 15, 2009

 Mr. Thompson of Mississippi (for himself, Mr. Waxman, Ms. Jackson-Lee 
 of Texas, Mr. Markey of Massachusetts, Ms. Clarke, and Mr. Pascrell) 
 introduced the following bill; which was referred to the Committee on 
   Homeland Security, and in addition to the Committee on Energy and 
Commerce, for a period to be subsequently determined by the Speaker, in 
   each case for consideration of such provisions as fall within the 
                jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
   To amend the Homeland Security Act of 2002 to extend, modify, and 
recodify the authority of the Secretary of Homeland Security to enhance 
    security and protect against acts of terrorism against chemical 
                  facilities, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Chemical Facility Anti-Terrorism Act 
of 2009''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress makes the following findings:
            (1) The Nation's chemical sector represents a target that 
        terrorists could exploit to cause consequences, including 
        death, injury, or serious adverse effects to human health, the 
        environment, critical infrastructure, public health, homeland 
        security, national security, and the national economy.
            (2) Chemical facilities that pose such potential 
        consequences and that are vulnerable to terrorist attacks must 
        be protected.
            (3) The Secretary of Homeland Security has statutory 
        authority pursuant to section 550 of the Department of Homeland 
        Security Appropriations Act, 2007 (Public Law 109-295) to 
        regulate the security practices at chemical facilities that are 
        at significant risk of being terrorist targets.
            (4) The Secretary of Homeland Security issued interim final 
        regulations called the Chemical Facility Anti-Terrorism 
        Standards, which became effective on June 8, 2007.
    (b) Purpose.--The purpose of this Act is to modify and make 
permanent the authority of the Secretary of Homeland Security to 
regulate security practices at chemical facilities.

SEC. 3. EXTENSION, MODIFICATION, AND RECODIFICATION OF AUTHORITY OF 
              SECRETARY OF HOMELAND SECURITY TO REGULATE SECURITY 
              PRACTICES AT CHEMICAL FACILITIES.

    (a) In General.--The Homeland Security Act of 2002 (6 U.S.C. 101 et 
seq.) is amended by adding at the end the following new title:

  ``TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES

``SEC. 2101. DEFINITIONS.

    ``In this title, the following definitions apply:
            ``(1) The term `chemical facility' means any facility--
                    ``(A) at which the owner or operator of the 
                facility possesses or plans to possess at any relevant 
                point in time a substance of concern; or
                    ``(B) that meets other risk-related criteria 
                identified by the Secretary.
            ``(2) The term `chemical facility security performance 
        standards' means risk-based standards established by the 
        Secretary to ensure or enhance the security of a chemical 
        facility against a chemical facility terrorist incident that 
        are designed to address the following:
                    ``(A) Restricting the area perimeter.
                    ``(B) Securing site assets.
                    ``(C) Screening and controlling access to the 
                facility and to restricted areas within the facility by 
                screening or inspecting individuals and vehicles as 
                they enter, including--
                            ``(i) measures to deter the unauthorized 
                        introduction of dangerous substances and 
                        devices that may facilitate a chemical facility 
                        terrorist incident or actions having serious 
                        negative consequences for the population 
                        surrounding the chemical facility; and
                            ``(ii) measures implementing a regularly 
                        updated identification system that checks the 
                        identification of chemical facility personnel 
                        and other persons seeking access to the 
                        chemical facility and that discourages abuse 
                        through established disciplinary measures.
                    ``(D) Methods to deter, detect, and delay a 
                chemical facility terrorist incident, creating 
                sufficient time between detection of a chemical 
                facility terrorist incident and the point at which the 
                chemical facility terrorist incident becomes 
                successful, including measures to--
                            ``(i) deter vehicles from penetrating the 
                        chemical facility perimeter, gaining 
                        unauthorized access to restricted areas, or 
                        otherwise presenting a hazard to potentially 
                        critical targets;
                            ``(ii) deter chemical facility terrorist 
                        incidents through visible, professional, well-
                        maintained security measures and systems, 
                        including security personnel, detection 
                        systems, barriers and barricades, and hardened 
                        or reduced value targets;
                            ``(iii) detect chemical facility terrorist 
                        incidents at early stages through counter 
                        surveillance, frustration of opportunity to 
                        observe potential targets, surveillance and 
                        sensing systems, and barriers and barricades; 
                        and
                            ``(iv) delay a chemical facility terrorist 
                        incident for a sufficient period of time so as 
                        to allow appropriate response through on-site 
                        security response, barriers and barricades, 
                        hardened targets, and well-coordinated response 
                        planning.
                    ``(E) Securing and monitoring the shipping, 
                receipt, and storage of a substance of concern for the 
                chemical facility.
                    ``(F) Deterring theft or diversion of a substance 
                of concern.
                    ``(G) Deterring insider sabotage.
                    ``(H) Deterring cyber sabotage, including by 
                preventing unauthorized onsite or remote access to 
                critical process controls, including supervisory 
                control and data acquisition systems, distributed 
                control systems, process control systems, industrial 
                control systems, critical business systems, and other 
                sensitive computerized systems.
                    ``(I) Developing and exercising an internal 
                emergency plan for owners, operators, and covered 
                individuals of a covered chemical facility for 
                responding to chemical facility terrorist incidents at 
                the facility. Any such plan shall include the provision 
                of appropriate information to any local emergency 
                planning committee, local law enforcement officials, 
                and emergency response providers to ensure an 
                effective, collective response to terrorist incidents.
                    ``(J) Maintaining effective monitoring, 
                communications, and warning systems, including--
                            ``(i) measures designed to ensure that 
                        security systems and equipment are in good 
                        working order and inspected, tested, 
                        calibrated, and otherwise maintained;
                            ``(ii) measures designed to regularly test 
                        security systems, note deficiencies, correct 
                        for detected deficiencies, and record results 
                        so that they are available for inspection by 
                        the Department; and
                            ``(iii) measures to allow the chemical 
                        facility to promptly identify and respond to 
                        security system and equipment failures or 
                        malfunctions.
                    ``(K) Ensuring mandatory annual security training, 
                exercises, and drills of chemical facility personnel 
                appropriate to their roles, responsibilities, and 
                access to chemicals, including participation by local 
                law enforcement, local emergency response providers, 
                appropriate supervisory and non-supervisory facility 
                employees and their employee representatives, if any.
                    ``(L) Performing personnel surety for individuals 
                with access to restricted areas or critical assets by 
                conducting appropriate background checks and ensuring 
                appropriate credentials for unescorted visitors and 
                chemical facility personnel, including permanent and 
                part-time personnel, temporary personnel, and contract 
                personnel, including--
                            ``(i) measures designed to verify and 
                        validate identity;
                            ``(ii) measures designed to check criminal 
                        history;
                            ``(iii) measures designed to verify and 
                        validate legal authorization to work; and
                            ``(iv) measures designed to identify people 
                        with terrorist ties.
                    ``(M) Escalating the level of protective measures 
                for periods of elevated threat.
                    ``(N) Specific threats, vulnerabilities, or risks 
                identified by the Secretary for that chemical facility.
                    ``(O) Reporting of significant security incidents 
                to the Department and to appropriate local law 
                enforcement officials.
                    ``(P) Identifying, investigating, reporting, and 
                maintaining records of significant security incidents 
                and suspicious activities in or near the site.
                    ``(Q) Establishing one or more officials and an 
                organization responsible for--
                            ``(i) security;
                            ``(ii) compliance with the standards under 
                        this paragraph;
                            ``(iii) serving as the point of contact for 
                        incident management purposes with Federal, 
                        State, local, and tribal agencies, law 
                        enforcement, and emergency response providers; 
                        and
                            ``(iv) coordination with Federal, State, 
                        local, and tribal agencies, law enforcement, 
                        and emergency response providers regarding 
                        plans and security measures for the collective 
                        response to a chemical facility terrorist 
                        incident.
                    ``(R) Maintaining appropriate records relating to 
                the security of the facility, including a copy of the 
                most recent security vulnerability assessment and site 
                security plan at the chemical facility.
                    ``(S) Assessing and, as appropriate, utilizing 
                methods to reduce the consequences of a terrorist 
                attack.
                    ``(T) Methods to recover or mitigate the release of 
                a substance of concern in the event of a chemical 
                facility terrorist incident.
                    ``(U) Any additional security performance standards 
                the Secretary may specify.
            ``(3) The term `chemical facility terrorist incident' means 
        any act or attempted act of terrorism or terrorist activity 
        committed at, near, or against a chemical facility, including--
                    ``(A) the release of a substance of concern from a 
                chemical facility;
                    ``(B) the theft, misappropriation, or misuse of a 
                substance of concern from a chemical facility; or
                    ``(C) the sabotage of a chemical facility or a 
                substance of concern at a chemical facility.
            ``(4) The term `employee representative' means the 
        representative of the certified or recognized bargaining agent 
        engaged in a collective bargaining relationship with a private 
        or public owner or operator of a chemical facility.
            ``(5) The term `covered individual' means a permanent, 
        temporary, full-time, or part-time employee of a covered 
        chemical facility or an employee of an entity with which the 
        covered chemical facility has entered into a contract who is 
        performing responsibilities at the facility pursuant to the 
        contract.
            ``(6) The term `covered chemical facility' means a chemical 
        facility that meets the criteria of section 2102(b)(1).
            ``(7) The term `environment' means--
                    ``(A) the navigable waters, the waters of the 
                contiguous zone, and the ocean waters of which the 
                natural resources are under the exclusive management 
                authority of the United States under the Magnuson-
                Stevens Fishery Conservation and Management Act (16 
                U.S.C. 1801 et seq.); and
                    ``(B) any other surface water, ground water, 
                drinking water supply, land surface or subsurface 
                strata, or ambient air within the United States or 
                under the jurisdiction of the United States.
            ``(8) The term `owner or operator' with respect to a 
        facility means any of the following:
                    ``(A) The person who owns the facility.
                    ``(B) The person who has responsibility for daily 
                operation of the facility.
                    ``(C) The person who leases the facility.
            ``(9) The term `person' means an individual, trust, firm, 
        joint stock company, corporation (including a government 
        corporation), partnership, association, State, municipality, 
        commission, political subdivision of a State, or any interstate 
        body and shall include each department, agency, and 
        instrumentality of the United States.
            ``(10) The term `release' means any spilling, leaking, 
        pumping, pouring, emitting, emptying, discharging, injecting, 
        escaping, leaching, dumping, or disposing into the environment 
        (including the abandonment or discarding of barrels, 
        containers, and other closed receptacles containing any 
        hazardous substance or pollutant or contaminant), but excludes 
        (A) any release which results in exposure to persons solely 
        within a workplace, with respect to a claim which such persons 
        may assert against the employer of such persons, (B) emissions 
        from the engine exhaust of a motor vehicle, rolling stock, 
        aircraft, vessel, or pipeline pumping station engine, (C) 
        release of source, byproduct, or special nuclear material from 
        a nuclear incident, as those terms are defined in the Atomic 
        Energy Act of 1954 (42 U.S.C. 2011 et seq.), if such release is 
        subject to requirements with respect to financial protection 
        established by the Nuclear Regulatory Commission under section 
        170 of such Act (42 U.S.C. 2210), or, for the purposes of 
        section 104 of the Comprehensive Environmental Response 
        Compensation and Liability Act of 1980 (42 U.S.C. 9604) or any 
        other response action, any release of source byproduct, or 
        special nuclear material from any processing site designated 
        under section 102(a)(1) or 302(a) of the Uranium Mill Tailings 
        Radiation Control Act of 1978 (42 U.S.C. 7912(a)(1); and (D) 
        the normal application of fertilizer.
            ``(11) The term `substance of concern' means a chemical 
        substance in quantity and form that is so designated by the 
        Secretary under section 2102(a).
            ``(12) The term `method to reduce the consequences of a 
        terrorist attack' means a measure used at a chemical facility 
        that reduces or eliminates the potential consequences of a 
        chemical facility terrorist incident, including--
                    ``(A) the elimination or reduction in the amount of 
                a substance of concern possessed or planned to be 
                possessed by an owner or operator of a covered chemical 
                facility through the use of alternate substances, 
                formulations, or processes;
                    ``(B) the modification of pressures, temperatures, 
                or concentrations of a substance of concern; and
                    ``(C) the reduction or elimination of onsite 
                handling of a substance of concern through improvement 
                of inventory control or chemical use efficiency.

``SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF CHEMICAL FACILITIES.

    ``(a) Substances of Concern.--
            ``(1) Designation by the secretary.--The Secretary may 
        designate any chemical substance as a substance of concern and 
        establish the threshold quantity for each such substance of 
        concern.
            ``(2) Matters for consideration.--In designating a chemical 
        substance or establishing or adjusting the threshold quantity 
        for a chemical substance under paragraph (1), the Secretary 
        shall consider the potential extent of death, injury, and 
        serious adverse effects to human health, the environment, 
        critical infrastructure, public health, homeland security, 
        national security, and the national economy that could result 
        from a chemical facility terrorist incident.
    ``(b) List of Covered Chemical Facilities.--
            ``(1) Criteria for list of facilities.--The Secretary shall 
        maintain a list of covered chemical facilities that the 
        Secretary determines are of sufficient security risk for 
        inclusion on the list based on the following criteria:
                    ``(A) The potential threat or likelihood that the 
                chemical facility will be the target of a chemical 
                facility terrorist incident.
                    ``(B) The potential extent and likelihood of death, 
                injury, or serious adverse effects to human health, the 
                environment, critical infrastructure, public health, 
                homeland security, national security, and the national 
                economy that could result from a chemical facility 
                terrorist incident.
                    ``(C) The proximity of the chemical facility to 
                large population centers.
            ``(2) Submission of information.--The Secretary may require 
        the submission of information with respect to the quantities of 
        substances of concern that an owner or operator of a chemical 
        facility possesses or plans to possess in order to determine 
        whether to designate a chemical facility as a covered chemical 
        facility for purposes of this title.
    ``(c) Assignment of Chemical Facilities to Risk-Based Tiers.--
            ``(1) Assignment.--The Secretary shall assign each covered 
        chemical facility to one of four risk-based tiers established 
        by the Secretary, with tier one representing the highest degree 
        of risk and tier four the lowest degree of risk.
            ``(2) Provision of information.--The Secretary may request, 
        and the owner or operator of a covered chemical facility shall 
        provide, any additional information beyond any information 
        required to be submitted under subsection (b)(2) that may be 
        necessary for the Secretary to assign the chemical facility to 
        the appropriate tier under paragraph (1).
            ``(3) Notification.--Not later than 60 days after the date 
        on which the Secretary determines that a chemical facility is a 
        covered chemical facility or is no longer a covered chemical 
        facility or changes the tier assignment under paragraph (1) of 
        a covered chemical facility, the Secretary shall notify the 
        owner or operator of that chemical facility of that 
        determination or change together with the reason for the 
        determination or change and, upon the request of the owner or 
        operator of a covered chemical facility, provide to the owner 
        or operator of the covered chemical facility the following 
        information:
                    ``(A) The number of individuals at risk of death, 
                injury, or severe adverse effects to human health as a 
                result of a worst case chemical facility terrorist 
                incident at the covered chemical facility.
                    ``(B) Information related to the criticality of the 
                covered chemical facility.
                    ``(C) The proximity or interrelationship of the 
                covered chemical facility to other critical 
                infrastructure.
    ``(d) Requirement for Review.--The Secretary--
            ``(1) shall periodically review--
                    ``(A) the designation of a substance of concern and 
                the threshold quantity under subsection (a)(1); and
                    ``(B) the criteria under subsection (b)(1); and
            ``(2) may at any time determine whether a chemical facility 
        is a covered chemical facility or change the tier to which such 
        a facility is assigned under subsection (c)(1).
    ``(e) Provision of Threat-Related Information.--In order to 
effectively assess the vulnerabilities to a covered chemical facility, 
the Secretary shall provide to the owner, operator, or security officer 
of a covered chemical facility threat information regarding probable 
threats to the facility and methods that could be used in a chemical 
facility terrorist incident.

``SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND SITE SECURITY 
              PLANS.

    ``(a) In General.--
            ``(1) Requirement.--The Secretary shall--
                    ``(A) establish standards, protocols, and 
                procedures for security vulnerability assessments and 
                site security plans to be required for covered chemical 
                facilities;
                    ``(B) require the owner or operator of each covered 
                chemical facility to--
                            ``(i) conduct an assessment of the 
                        vulnerability of the covered chemical facility 
                        to a range of chemical facility terrorist 
                        incidents, including an incident that results 
                        in a worst-case release of a substance of 
                        concern;
                            ``(ii) prepare and implement a site 
                        security plan for that covered chemical 
                        facility that addresses the security 
                        vulnerability assessment and meets the risk-
                        based chemical security performance standards 
                        under subsection (b); and
                            ``(iii) include at least one supervisory 
                        and at least one non-supervisory employee of 
                        the covered chemical facility, and at least one 
                        employee representative, from each bargaining 
                        agent at the covered chemical facility, if any, 
                        in developing the security vulnerability 
                        assessment and site security plan required 
                        under this clause;
                    ``(C) set deadlines, by tier, for the completion of 
                security vulnerability assessments and site security 
                plans;
                    ``(D) upon request, as necessary, and to the extent 
                that resources permit, provide technical assistance to 
                a covered chemical facility conducting a vulnerability 
                assessment or site security plan required under this 
                section;
                    ``(E) establish specific deadlines and requirements 
                for the submission by a covered chemical facility of 
                information describing--
                            ``(i) any change in the use by the covered 
                        chemical facility of more than a threshold 
                        amount of any substance of concern that may 
                        affect the requirements of the chemical 
                        facility under this title; or
                            ``(ii) any material modification to a 
                        covered chemical facility's operations or site 
                        that may affect the security vulnerability 
                        assessment or site security plan submitted by 
                        the covered chemical facility;
                    ``(F) require the owner or operator of a covered 
                chemical facility to review and resubmit a security 
                vulnerability assessment or site security plan not less 
                frequently than once every 5 years; and
                    ``(G) not later than 180 days after the date on 
                which the Secretary receives a security vulnerability 
                assessment or site security plan under this title, 
                review and approve or disapprove such assessment or 
                plan.
            ``(2) Inherently governmental function.--The approval or 
        disapproval of a security vulnerability assessment or site 
        security plan under this section is an inherently governmental 
        function.
    ``(b) Risk-Based Chemical Security Performance Standards.--The 
Secretary shall establish risk-based chemical security performance 
standards for the site security plans required to be prepared by 
covered chemical facilities. In establishing such standards, the 
Secretary shall--
            ``(1) require separate and, as appropriate, increasingly 
        stringent risk-based chemical security performance standards 
        for site security plans as the level of risk associated with 
        the tier increases; and
            ``(2) permit each covered chemical facility submitting a 
        site security plan to select a combination of security measures 
        that satisfy the risk-based chemical security performance 
        standards established by the Secretary under this subsection.
    ``(c) Co-Located Chemical Facilities.--The Secretary may allow an 
owner or operator of a covered chemical facility that is located 
geographically close to another covered chemical facility to develop 
and implement coordinated security vulnerability assessments and site 
security plans.
    ``(d) Alternate Security Programs Satisfying Requirements for 
Security Vulnerability Assessment and Site Security Plan.--
            ``(1) Acceptance of program.--In response to a request by 
        an owner or operator of a covered chemical facility, the 
        Secretary may accept an alternate security program submitted by 
        the owner or operator of the facility as a component of the 
        security vulnerability assessment or site security plan 
        required under this section, if the Secretary determines that 
        such alternate security program, in combination with other 
        components of the security vulnerability assessment and site 
        security plan submitted by the owner or operator of the 
        facility--
                    ``(A) meets the requirements of this title and the 
                regulations promulgated pursuant to this title;
                    ``(B) provides an equivalent level of security to 
                the level of security established pursuant to the 
                regulations promulgated under this title; and
                    ``(C) includes employee participation as required 
                under subsection (a)(1)(B)(iii).
            ``(2) Secretarial review required.--Nothing in this 
        subsection shall relieve the Secretary of the obligation--
                    ``(A) to review a security vulnerability assessment 
                and site security plan submitted by a covered chemical 
                facility under this section; and
                    ``(B) to approve or disapprove each such assessment 
                or plan on an individual basis according to the 
                deadlines established under subsection (a).
            ``(3) Covered facility's obligations unaffected.--Nothing 
        in this subsection shall relieve any covered chemical facility 
        of the obligation and responsibility to comply with all of the 
        requirements of this title.
            ``(4) Personnel surety alternate security program.--In 
        response to an application from a non-profit, personnel surety 
        accrediting organization acting on behalf of, and with written 
        authorization from, the owner or operator of a covered chemical 
        facility, the Secretary may accept a personnel surety alternate 
        security program that meets the requirements of section 2115 
        and provides for a background check process that is--
                    ``(A) expedited, affordable, reliable, and 
                accurate;
                    ``(B) fully protective of the rights of covered 
                individuals through procedures that are consistent with 
                the privacy protections available under the Fair Credit 
                Reporting Act (15 U.S.C. 1681 et seq.); and
                    ``(C) is a single background check consistent with 
                a risk-based tiered program.
    ``(e) Other Authorities.--
            ``(1) Regulation of maritime facilities.--
                    ``(A) Risk-based tiering.--Notwithstanding any 
                other provision of law, the owner or operator of a 
                chemical facility required to submit a facility 
                security plan under section 70103(c) of title 46, 
                United States Code, shall be required to submit 
                information to the Secretary necessary to determine 
                whether to designate such a facility as a covered 
                chemical facility and to assign the facility to a risk-
                based tier under section 2102 of this title.
                    ``(B) Additional measures.--In the case of a 
                facility designated as a covered chemical facility 
                under this title that is also regulated under section 
                70103(c) of title 46, United States Code, the Secretary 
                shall require the owner or operator of such facility to 
                update the vulnerability assessments and facility 
                security plans required under that section, if 
                necessary, to ensure an equivalent level of security 
                for substances of concern, including the requirements 
                under section 2111, in the same manner as other covered 
                chemical facilities in this title.
                    ``(C) Information sharing and protection.--
                Notwithstanding section 70103(d) of title 46, United 
                States Code, the Secretary shall apply the information 
                sharing and protection requirements in section 2110 of 
                this title to a facility described in subparagraph (B).
                    ``(D) Enforcement.--The Secretary shall establish, 
                by rulemaking, procedures to ensure that an owner or 
                operator of a covered chemical facility required to 
                update the vulnerability assessment and facility 
                security plan for the facility under subparagraph (B) 
                is in compliance with the requirements of this title.
                    ``(E) Formal agreement.--The Secretary shall 
                require the Office of Infrastructure Protection and the 
                Coast Guard to enter into a formal agreement detailing 
                their respective roles and responsibilities in carrying 
                out the requirements of this title. Such agreement 
                shall ensure that the enforcement and compliance 
                requirements under this title and section 70103 of 
                title 46, United States Code, are not conflicting or 
                duplicative
            ``(2) Coordination of storage licensing or permitting 
        requirement.--In the case of any storage required to be 
        licensed or permitted under chapter 40 of title 18, United 
        States Code, the Secretary shall prescribe the rules and 
        regulations for the implementation of this section with the 
        concurrence of the Attorney General and avoid unnecessary 
        duplication of regulatory requirements.
    ``(f) Role of Employees.--
            ``(1) Description of role required.--As appropriate, 
        security vulnerability assessments or site security plans 
        required under this section shall describe the roles or 
        responsibilities that covered individuals are expected to 
        perform to deter or respond to a chemical facility terrorist 
        incident.
            ``(2) Training for employees.--The owner or operator of a 
        covered chemical facility required to submit a site security 
        plan under this section shall annually provide each covered 
        individual with a role or responsibility referred to in 
        paragraph (1) at the facility with a minimum of 8 hours of 
        training. Such training shall--
                    ``(A) include an identification and discussion of 
                substances of concern;
                    ``(B) include a discussion of possible consequences 
                of a chemical facility terrorist incident;
                    ``(C) review and exercise the covered chemical 
                facility's site security plan, including any 
                requirements for differing threat levels;
                    ``(D) include a review of information protection 
                requirements;
                    ``(E) include a discussion of physical and cyber 
                security equipment, systems, and methods used to 
                achieve chemical security performance standards;
                    ``(F) allow training with other relevant 
                participants, including Federal, State, local, and 
                tribal authorities, and first responders, where 
                appropriate;
                    ``(G) use existing national voluntary consensus 
                standards, chosen jointly with employee 
                representatives, if any;
                    ``(H) allow instruction through government training 
                programs, chemical facilities, academic institutions, 
                nonprofit organizations, industry and private 
                organizations, employee organizations, and other 
                relevant entities that provide such training;
                    ``(I) use multiple training media and methods;
                    ``(J) include identification and assessment of 
                methods to reduce the consequences of a terrorist 
                attack; and
                    ``(K) include a discussion of appropriate emergency 
                response procedures.

``SEC. 2104. SITE INSPECTIONS.

    ``(a) Right of Entry.--For purposes of carrying out this title, the 
Secretary shall have, at a reasonable time and on presentation of 
credentials, a right of entry to, on, or through any property of a 
covered chemical facility or any property on which any record required 
to be maintained under this section is located.
    ``(b) Inspections and Verifications.--
            ``(1) In general.--The Secretary shall, at such time and 
        place as the Secretary determines to be reasonable and 
        appropriate, conduct chemical facility security inspections and 
        verifications.
            ``(2) Requirements.--To ensure and evaluate compliance with 
        this title, including any regulations or requirements adopted 
        by the Secretary in furtherance of the purposes of this title, 
        in conducting an inspection or verification under paragraph 
        (1), the Secretary shall have access to the owners, operators, 
        employees, and employee representatives, if any, of a covered 
        chemical facility.
    ``(c) Unannounced Inspections.--In addition to any inspection 
conducted pursuant to subsection (b), the Secretary shall require 
covered chemical facilities assigned to tier 1 and tier 2 under section 
2102(c)(1) to undergo unannounced facility inspections. The inspections 
required under this subsection shall be--
            ``(1) conducted without prior notice to the facility;
            ``(2) designed to evaluate at the chemical facility 
        undergoing inspection--
                    ``(A) the ability of the chemical facility to 
                prevent a chemical facility terrorist incident that 
                applicable chemical security performance standards are 
                intended to prevent;
                    ``(B) the ability of the chemical facility to 
                protect against security threats that are required to 
                be addressed by applicable chemical security 
                performance standards; and
                    ``(C) any weaknesses in the security plan of the 
                chemical facility;
            ``(3) conducted so as not to affect the actual security, 
        physical integrity, or safety of the chemical facility or its 
        employees while the inspection is conducted; and
            ``(4) conducted--
                    ``(A) every two years in the case of a covered 
                chemical facility assigned to tier 1; and
                    ``(B) every four years in the case of a covered 
                chemical facility assigned to tier 2.

``SEC. 2105. RECORDS.

    ``(a) Requests for Records.--
            ``(1) In general.--In carrying out this title, the 
        Secretary may require the submission of or, on presentation of 
        credentials, may at reasonable times obtain access to and copy 
        any records, including any records maintained in electronic 
        format, necessary for--
                    ``(A) reviewing or analyzing a security 
                vulnerability assessment or site security plan 
                submitted under section 2103; or
                    ``(B) assessing the implementation of such a site 
                security plan.
            ``(2) Proper handling of records.--In accessing or copying 
        any records under paragraph (1), the Secretary shall ensure 
        that such records are handled and secured appropriately in 
        accordance with section 2110.
    ``(b) Provision of Records to Employee Representatives.--If a 
covered chemical facility has one or more certified or recognized 
bargaining agents, the owner or operator of the covered chemical 
facility shall provide an employee representative designated by each 
such bargaining agent at such facility with a copy of any security 
vulnerability assessment or site security plan submitted. Each employee 
representative shall ensure that any such assessment or plan provided 
to the representative is handled and secured appropriately in 
accordance with section 2110.

``SEC. 2106. TIMELY SHARING OF THREAT INFORMATION.

    ``(a) Responsibilities of Secretary.--Upon the receipt of 
information concerning a threat that is relevant to a certain covered 
chemical facility, the Secretary shall provide such information in a 
timely manner, to the maximum extent practicable under applicable 
authority and in the interests of national security, to the owner, 
operator, or security officer of that covered chemical facility and to 
a representative of each recognized or certified bargaining agent at 
the facility, if any.
    ``(b) Responsibilities of Owner or Operator.--The Secretary shall 
require the owner or operator of a covered chemical facility to provide 
information concerning a threat in a timely manner about any 
significant security incident or threat to the covered chemical 
facility or any intentional or unauthorized penetration of the physical 
security or cyber security of the covered chemical facility whether 
successful or unsuccessful.

``SEC. 2107. ENFORCEMENT.

    ``(a) Review of Site Security Plan.--
            ``(1) Disapproval.--The Secretary shall disapprove a 
        security vulnerability assessment or site security plan 
        submitted under this title if the Secretary determines that--
                    ``(A) the security vulnerability assessment or site 
                security plan does not comply with the standards, 
                protocols, or procedures under section 2103(a)(1)(A); 
                or
                    ``(B) in the case of a site security plan--
                            ``(i) the plan or the implementation of the 
                        plan is insufficient to address vulnerabilities 
                        identified in a security vulnerability 
                        assessment, site inspection, or unannounced 
                        inspection of the covered chemical facility; or
                            ``(ii) the plan fails to meet all 
                        applicable chemical facility security 
                        performance standards.
            ``(2) Provision of notification of disapproval.--If the 
        Secretary disapproves the security vulnerability assessment or 
        site security plan submitted by a covered chemical facility 
        under this title or the implementation of a site security plan 
        by such a chemical facility, the Secretary shall provide the 
        owner or operator of the covered chemical facility a written 
        notification of the disapproval within 14 days of the date on 
        which the Secretary disapproves such assessment or plan, that--
                    ``(A) includes a clear explanation of deficiencies 
                in the assessment, plan, or implementation of the plan; 
                and
                    ``(B) requires the owner or operator of the covered 
                chemical facility to revise the assessment or plan to 
                address any deficiencies and, by such date as the 
                Secretary determines is appropriate, to submit to the 
                Secretary the revised assessment or plan.
            ``(3) Order for compliance.--Whenever the Secretary 
        determines that the owner or operator of a covered chemical 
        facility has violated or is in violation of any requirement of 
        this title or has failed or is failing to address any 
        deficiencies in the assessment, plan, or implementation of the 
        plan by such date as the Secretary determines to be 
        appropriate, the Secretary, after providing an opportunity for 
        the owner or operator of the covered chemical facility to 
        consult with the Secretary, may--
                    ``(A) issue an order assessing a civil penalty for 
                any past or current violation, requiring compliance 
                immediately or within a specified time period, or both; 
                or
                    ``(B) commence a civil action in the United States 
                district court in the district in which the violation 
                occurred for appropriate relief, including temporary or 
                permanent injunction.
            ``(4) Order to cease operations.--If the Secretary 
        determines that the owner or operator of a covered chemical 
        facility continues to be in noncompliance after an order for 
        compliance is issued under paragraph (3), the Secretary may 
        issue an order to the owner or operator of a covered chemical 
        facility to cease operations at the facility until the owner or 
        operator complies with such order issued under paragraph (3). 
        Notwithstanding the preceding sentence, the Secretary may not 
        issue an order to cease operations under this paragraph to the 
        owner or operator of a wastewater facility.
    ``(b) Penalties.--
            ``(1) Civil penalties.--A court may award a civil penalty, 
        pursuant to an order issued by the Secretary under this title, 
        of not more than $50,000 for each day on which a violation 
        occurs or a failure to comply continues.
            ``(2) Administrative penalties.--The Secretary may award an 
        administrative penalty, pursuant to an order issued under this 
        title, of not more than $25,000 for each day on which a 
        violation occurs or a failure to comply continues.

``SEC. 2108. WHISTLEBLOWER PROTECTIONS.

    ``(a) Establishment.--The 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 covered chemical facility associated with the risk 
of a chemical facility terrorist incident.
    ``(b) Confidentiality.--The Secretary shall keep confidential the 
identity of a person that submits a report under subsection (a) and any 
such report shall be treated as protected information under section 
2110 to the extent that it does not consist of publicly available 
information.
    ``(c) Acknowledgment of Receipt.--If a report submitted under 
subsection (a) identifies the person submitting the report, the 
Secretary shall respond promptly to such person to acknowledge receipt 
of the report.
    ``(d) Steps to Address Problems.--The Secretary shall review and 
consider the information provided in any report submitted under 
subsection (a) and shall, as necessary, take appropriate steps under 
this title to address any problem, deficiency, or vulnerability 
identified in the report.
    ``(e) Retaliation Prohibited.--
            ``(1) Prohibition.--No owner or operator of a covered 
        chemical facility, profit or not-for-profit corporation, 
        association, or any contractor, subcontractor or agent thereof, 
        may discharge any employee or otherwise discriminate against 
        any employee with respect to his compensation, terms, 
        conditions, or other privileges of employment because the 
        employee (or any person acting pursuant to a request of the 
        employee)--
                    ``(A) notified the Secretary, the owner or operator 
                of a covered chemical facility, or the employee's 
                employer of an alleged violation of this title, 
                including communications related to carrying out the 
                employee's job duties;
                    ``(B) refused to engage in any practice made 
                unlawful by this title, if the employee has identified 
                the alleged illegality to the employer;
                    ``(C) testified before or otherwise provided 
                information relevant for Congress or for any Federal or 
                State proceeding regarding any provision (or proposed 
                provision) of this title;
                    ``(D) commenced, caused to be commenced, or is 
                about to commence or cause to be commenced a proceeding 
                under this title;
                    ``(E) testified or is about to testify in any such 
                proceeding; or
                    ``(F) assisted or participated or is about to 
                assist or participate in any manner in such a 
                proceeding or in any other manner in such a proceeding 
                or in any other action to carry out the purposes of 
                this title.
            ``(2) Enforcement action.--Any employee covered by this 
        section who alleges discrimination by an employer in violation 
        of paragraph (1) may bring an action governed by the rules and 
        procedures, legal burdens of proof, and remedies applicable 
        under subsections (d) through (h) of section 20109 of title 49, 
        United States Code. A party may seek district court review as 
        set forth in subsection (d)(4) of such section not later than 
        90 days after receiving a written final determination by the 
        Secretary of Labor.
            ``(3) Prohibited personnel practices affecting the 
        department.--
                    ``(A) In general.--Notwithstanding any other 
                provision of law, any individual holding or applying 
                for a position within the Department shall be covered 
                by--
                            ``(i) paragraphs (1), (8), and (9) of 
                        section 2302(b) of title 5, United States Code;
                            ``(ii) any provision of law implementing 
                        any of such paragraphs by providing any right 
                        or remedy available to an employee or applicant 
                        for employment in the civil service; and
                            ``(iii) any rule or regulation prescribed 
                        under any such paragraph.
                    ``(B) Rule of construction.--Nothing in this 
                paragraph shall be construed to affect any rights, 
                apart from those referred to in subparagraph (A), to 
                which an individual described in that subparagraph 
                might otherwise be entitled to under law.

``SEC. 2109. FEDERAL PREEMPTION.

    ``This title does not preclude or deny any right of any State or 
political subdivision thereof to adopt or enforce any regulation, 
requirement, or standard of performance with respect to a covered 
chemical facility that is more stringent than a regulation, 
requirement, or standard of performance issued under this title, or 
otherwise impair any right or jurisdiction of any State or political 
subdivision thereof with respect to covered chemical facilities within 
that State or political subdivision thereof.

``SEC. 2110. PROTECTION OF INFORMATION.

    ``(a) Prohibition of Public Disclosure of Protected Information.--
Protected information, as described in subsection (g), that is provided 
to the Department by the owner or operator of a covered chemical 
facility or created by the Department under the requirements of this 
title--
            ``(1) is exempt from disclosure under section 552 of title 
        5, United States Code; and
            ``(2) may not be made available pursuant to any State or 
        local law requiring disclosure of information or records.
    ``(b) Information Sharing.--The Secretary shall facilitate and 
provide standards for the appropriate sharing of protected information 
with and between Federal, State, local, and tribal governments, 
emergency response providers, law enforcement officials, designated 
supervisory and non-supervisory covered chemical facility personnel 
with security, operational, or fiduciary responsibility for the 
facility, and designated facility employee representatives, if any.
    ``(c) Treatment of Information in Adjudicative Proceedings.--In a 
proceeding under this title, protected information described in 
subsection (g), or related vulnerability or security information, shall 
be treated in any judicial or administrative action in a manner 
consistent with the treatment of sensitive security information under 
section 525 of the Department of Homeland Security Appropriations Act, 
2007 (Public Law 109-295; 120 Stat. 1321).
    ``(d) Other Obligations Unaffected.--Nothing in this section 
affects any obligation of the owner or operator of a chemical facility 
under any other law to submit or make available information required by 
such other law to facility employees, employee organizations, or a 
Federal, State, tribal, or local government.
    ``(e) Submission of Information to Congress.--Nothing in this title 
shall permit or authorize the withholding of information from Congress 
or any committee or subcommittee thereof.
    ``(f) Disclosure of Independently Furnished Information.--Nothing 
in this title shall affect any authority or obligation of a Federal, 
State, or local agency to protect or disclose any record or information 
that the Federal, State, or local government agency obtains from a 
chemical facility under any other law.
    ``(g) Protected Information.--
            ``(1) In general.--For purposes of this title, protected 
        information is the following:
                    ``(A) Security vulnerability assessments and site 
                security plans submitted to the Secretary under this 
                title.
                    ``(B) Portions of the following documents, records, 
                orders, notices, or letters that the Secretary 
                determines would be detrimental to chemical facility 
                security if disclosed and that are developed by the 
                Secretary or the owner or operator of a covered 
                chemical facility exclusively for the purposes of this 
                title:
                            ``(i) Documents directly related to the 
                        Secretary's review and approval or disapproval 
                        of vulnerability assessments and site security 
                        plans under this title.
                            ``(ii) Documents directly related to 
                        inspections and audits under this title.
                            ``(iii) Orders, notices, or letters 
                        regarding the compliance of a covered chemical 
                        facility with the requirements of this title.
                            ``(iv) Information provided to or created 
                        by the Secretary under section subsection (b) 
                        or (c) of section 2102.
                    ``(C) Other information developed exclusively for 
                the purposes of this title that the Secretary 
                determines, if disclosed, would be detrimental to 
                chemical facility security.
            ``(2) Exclusions.--For purposes of this section, protected 
        information does not include--
                    ``(A) information that is otherwise publicly 
                available, including information that is required to be 
                made publicly available under any law;
                    ``(B) information that a chemical facility has 
                lawfully disclosed other than in accordance with this 
                title; or
                    ``(C) information that, if disclosed, would not be 
                detrimental to the security of a chemical facility, 
                including aggregate regulatory data that the Secretary 
                determines is appropriate to describe facility 
                compliance with the requirements of this title and the 
                Secretary's implementation of such requirements.

``SEC. 2111. METHODS TO REDUCE THE CONSEQUENCES OF A TERRORIST ATTACK.

    ``(a) Assessment Required.--The owner or operator of a covered 
chemical facility shall include in the site security plan conducted 
pursuant to section 2103, an assessment of methods to reduce the 
consequences of a terrorist attack on that chemical facility, 
including--
            ``(1) a description of the methods to reduce the 
        consequences of a terrorist attack assessed by the covered 
        chemical facility;
            ``(2) the degree to which each method to reduce the 
        consequences of a terrorist attack could, if applied, reduce 
        the potential extent of death, injury, or serious adverse 
        effects to human health resulting from a terrorist release;
            ``(3) the technical viability, costs, avoided costs 
        (including liabilities), savings, and applicability of 
        implementing each method to reduce the consequences of a 
        terrorist attack; and
            ``(4) any other information that the owner or operator of 
        the covered chemical facility considered in conducting the 
        assessment.
    ``(b) Implementation.--
            ``(1) Implementation.--The owner or operator of a covered 
        chemical facility assigned to tier 1 or tier 2 that is required 
        to conduct an assessment under subsection (a) shall implement 
        methods to reduce the consequences of a terrorist attack on the 
        chemical facility if the Secretary determines, based on an 
        assessment in subsection (a), that the implementation of such 
        methods at the facility--
                    ``(A) would significantly reduce the risk of death, 
                injury, or serious adverse effects to human health 
                resulting from a chemical facility terrorist incident 
                but would not increase the interim storage of a 
                substance of concern outside the facility or directly 
                result in the creation of a new covered chemical 
                facility assigned to tier 1 or tier 2 or the elevation 
                of an existing covered chemical facility to tier 1 or 
                tier 2;
                    ``(B) can feasibly be incorporated into the 
                operation of the covered chemical facility; and
                    ``(C) would not significantly and demonstrably 
                impair the ability of the owner or operator of the 
                covered chemical facility to continue the business of 
                the facility at its location.
            ``(2) Review of inability to comply.--
                    ``(A) In general.--An owner or operator of a 
                covered chemical facility who is unable to comply with 
                the Secretary's determination under paragraph (1) 
                shall, within 60 days of receipt of the Secretary's 
                determination, provide to the Secretary a written 
                explanation that includes the reasons therefor.
                    ``(B) Review.--Not later than 60 days after the 
                receipt of an explanation submitted under subparagraph 
                (A), the Secretary, after consulting with the owner or 
                operator of the covered chemical facility who submitted 
                such explanation, shall provide to the owner or 
                operator a written determination of whether 
                implementation shall be required pursuant to paragraph 
                (1). If the Secretary determines that implementation is 
                required, the facility shall be required to begin 
                implementation within 180 days of that determination.
    ``(c) Provision of Information on Alternative Approaches.--
            ``(1) In general.--The Secretary shall make available 
        information to chemical facilities on the use and availability 
        of methods to reduce the consequences of a chemical facility 
        terrorist incident.
            ``(2) Information to be included.--The information under 
        paragraph (1) may include information about--
                    ``(A) general and specific types of such methods;
                    ``(B) combinations of chemical sources, substances 
                of concern, and hazardous processes or conditions for 
                which such methods could be appropriate;
                    ``(C) the availability of specific methods to 
                reduce the consequences of a terrorist attack;
                    ``(D) the costs and cost savings resulting from the 
                use of such methods;
                    ``(E) emerging technologies that could be 
                transferred from research models or prototypes to 
                practical applications;
                    ``(F) the availability of technical assistance and 
                best practices; and
                    ``(G) such other matters as the Secretary 
                determines is appropriate.
            ``(3) Public availability.--Information made available 
        under this subsection shall not identify any specific chemical 
        facility, violate the protection of information provisions 
        under section 2110, or disclose any proprietary information.
    ``(d) Funding for Methods To Reduce the Consequences of a Terrorist 
Attack.--The Secretary may make funds available to help defray the cost 
of implementing methods to reduce the consequences of a terrorist 
attack to covered chemical facilities that are required by the 
Secretary to implement such methods.

``SEC. 2112. APPLICABILITY.

    ``This title shall not apply to--
            ``(1) any chemical facility that is owned and operated by 
        the Secretary of Defense;
            ``(2) the transportation in commerce, including incidental 
        storage, of any substance of concern regulated as a hazardous 
        material under chapter 51 of title 49, United States Code; or
            ``(3) all or a specified portion of any chemical facility 
        that--
                    ``(A) is subject to regulation by the Nuclear 
                Regulatory Commission (hereinafter in this paragraph 
                referred to as the `Commission') or a State that has 
                entered into an agreement with the Commission under 
                section 274 b. of the Atomic Energy Act of 1954 (42 
                U.S.C. 2021 b.);
                    ``(B) has had security controls imposed by the 
                Commission or State, whichever has the regulatory 
                authority, on the entire facility or the specified 
                portion of the facility; and
                    ``(C) has been designated by the Commission, after 
                consultation with the State, if any, that regulates the 
                facility, and the Secretary, as excluded from the 
                application of this title.

``SEC. 2113. SAVINGS CLAUSE.

    ``(a) In General.--Nothing in this title shall affect or modify in 
any way any obligation or liability of any person under any other 
Federal law, including section 112 of the Clean Air Act (42 U.S.C. 
7412), the Federal Water Pollution Control Act (33 U.S.C. 1251 et 
seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 
6901 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.), the Occupational Safety and Health Act (29 U.S.C. 651 et 
seq.), the National Labor Relations Act (29 U.S.C. 151 et seq.), the 
Emergency Planning and Community Right to Know Act of 1996 (42 U.S.C. 
11001 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), 
the Maritime Transportation Security Act of 2002 (Public Law 107-295), 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980 (42 U.S.C. 9601 et seq.), and the Toxic Substances Control 
Act (15 U.S.C. 2601 et seq.).
    ``(b) Other Requirements.--Nothing in this title shall preclude or 
deny the right of any State or political subdivision thereof to adopt 
or enforce any regulation, requirement, or standard of performance 
relating to environmental protection, health, or safety.

``SEC. 2114. OFFICE OF CHEMICAL FACILITY SECURITY.

    ``(a) In General.--There is established in the Department an Office 
of Chemical Facility Security, headed by a Director, who shall be a 
member of the Senior Executive Service in accordance with subchapter VI 
of chapter 33 of title 5, United States Code, under section 5382 of 
that title, and who shall be responsible for carrying out the 
responsibilities of the Secretary under this title.
    ``(b) Professional Qualifications.--The individual selected by the 
Secretary as the Director of the Office of Chemical Facility Security 
shall have professional qualifications and experience necessary for 
effectively directing the Office of Chemical Facility Security and 
carrying out the requirements of this title, including a demonstrated 
knowledge of physical infrastructure protection, cybersecurity, 
chemical facility security, hazard analysis, chemical process 
engineering, chemical process safety reviews, or other such 
qualifications that the Secretary determines to be necessary.
    ``(c) Selection Process.--The Secretary shall make a reasonable 
effort to select an individual to serve as the Director from among a 
group of candidates that is diverse with respect to race, ethnicity, 
age, gender, and disability characteristics and submit to the Committee 
on Homeland Security and the Committee on Energy and Commerce of the 
House of Representatives and the Committee on Homeland Security and 
Governmental Affairs of the Senate information on the selection 
process, including details on efforts to assure diversity among the 
candidates considered for this position.

``SEC. 2115. SECURITY BACKGROUND CHECKS OF COVERED INDIVIDUALS AT 
              CERTAIN CHEMICAL FACILITIES.

    ``(a) Regulations Issued by the Secretary.--
            ``(1) In general.--
                    ``(A) Requirement.--The Secretary shall issue 
                regulations to require covered chemical facilities to 
                establish personnel surety for individuals described in 
                subparagraph (B) by conducting appropriate security 
                background checks and ensuring appropriate credentials 
                for unescorted visitors and chemical facility 
                personnel, including permanent and part-time personnel, 
                temporary personnel, and contract personnel, 
                including--
                            ``(i) measures designed to verify and 
                        validate identity;
                            ``(ii) measures designed to check criminal 
                        history;
                            ``(iii) measures designed to verify and 
                        validate legal authorization to work; and
                            ``(iv) measures designed to identify people 
                        with terrorist ties.
                    ``(B) Individuals described.--For purposes of 
                subparagraph (A), an individual described in this 
                subparagraph is an individual with access to restricted 
                areas or critical assets of a covered chemical 
                facility, including--
                            ``(i) a covered individual who has 
                        unescorted access to restricted areas or 
                        critical assets or who is provided with a copy 
                        of a security vulnerability assessment or site 
                        security plan;
                            ``(ii) a person associated with a covered 
                        chemical facility who is provided with a copy 
                        of a security vulnerability assessment or site 
                        security plan; or
                            ``(iii) a person who is determined by the 
                        Secretary to require a security background 
                        check based on chemical facility security 
                        performance standards.
            ``(2) Regulations.--The regulations required by paragraph 
        (1) shall set forth--
                    ``(A) the scope of the security background checks, 
                including the types of disqualifying offenses and the 
                time period covered for each person subject to a 
                security background check under paragraph (1);
                    ``(B) the processes to conduct the security 
                background checks;
                    ``(C) the necessary biographical information and 
                other data required in order to conduct the security 
                background checks;
                    ``(D) a redress process for an adversely-affected 
                person consistent with subsections (b) and (c); and
                    ``(E) a prohibition on an owner or operator of a 
                covered chemical facility unreasonably misrepresenting 
                to an employee or other relevant person, including an 
                arbiter involved in a labor arbitration, the scope, 
                application, or meaning of any rules, regulations, 
                directives, or guidance issued by the Secretary related 
                to security background check requirements for covered 
                individuals when conducting a security background 
                check.
    ``(b) Requirements.--Upon issuance of regulations under subsection 
(a), the Secretary shall prohibit the owner or operator of a covered 
chemical facility from making an adverse employment decision, including 
removal or suspension of the employee, due to such regulations with 
respect to such person unless such person--
            ``(1) has been convicted of, has been found not guilty of 
        by reason of insanity of, or is under want, warrant, or 
        indictment for a permanent disqualifying criminal offense 
        listed in part 1572 of title 49, Code of Federal Regulations;
            ``(2) was convicted of or found not guilty by reason of 
        insanity of an interim disqualifying criminal offense listed in 
        part 1572 of title 49, Code of Federal Regulations, within 7 
        years of the date on which the covered chemical facility 
        performs the security background check;
            ``(3) was incarcerated for an interim disqualifying 
        criminal offense listed in part 1572 of title 49, Code of 
        Federal Regulations, and released from incarceration within 5 
        years of the date that the chemical facility performs the 
        security background check;
            ``(4) is determined by the Secretary to be on the 
        consolidated terrorist watchlist; or
            ``(5) is determined, as a result of the security background 
        check, not to be legally authorized to work in the United 
        States.
    ``(c) Redress Process.--Upon the issuance of regulations under 
subsection (a), the Secretary shall--
            ``(1) require an adequate and prompt redress process for a 
        person subject to a security background check under subsection 
        (a)(1) who is subjected to an adverse employment decision, 
        including removal or suspension of the employee, due to such 
        regulations that is consistent with the appeals and waiver 
        processes established for applicants for transportation workers 
        at ports, as required by section 70105(c) of title 46, United 
        States Code, including all rights to hearings before an 
        administration law judge, scope of review, a review of an 
        unclassified summary of classified evidence equivalent to the 
        summary provided in part 1515 of title 49, Code of Federal 
        Regulations, and procedures for new evidence for both appeals 
        and waiver decisions;
            ``(2) have the authority to order an appropriate remedy, 
        including reinstatement of the person subject to a security 
        background check under subsection (a)(1), should the Secretary 
        determine that the owner or operator of a covered chemical 
        facility wrongfully made an adverse employment decision 
        regarding such person pursuant to such rule, regulation, 
        directive, or guidance;
            ``(3) ensure that the redress process required under this 
        subsection affords to the covered individual a full disclosure 
        of any public-record event covered by subsection (b) that 
        provides the basis for an adverse employment decision; and
            ``(4) ensure that the person subject to a security 
        background check under subsection (a)(1) receives the person's 
        full wages and benefits until all appeals and waiver procedures 
        are exhausted.
    ``(d) Restrictions on Use and Maintenance of Information.--
Information obtained under this section by the Secretary or the owner 
or operator of a covered chemical facility shall be handled as follows:
            ``(1) Such information may not be made available to the 
        public.
            ``(2) Such information may not be accessed by employees of 
        the facility except for such employees who are directly 
        involved with collecting the information or conducting or 
        evaluating security background checks.
            ``(3) Such information shall be maintained confidentially 
        by the facility and the Secretary and may be used only for 
        making determinations under this section.
            ``(4) The Secretary may share such information with other 
        Federal, State, local, and tribal law enforcement agencies.
    ``(e) Rights and Responsibilities.--Nothing in this section shall 
be construed to abridge any right or responsibility of a person subject 
to a security background check under subsection (a)(1) or an owner or 
operator of a covered chemical facility under any other Federal, State, 
local, or tribal law or collective bargaining agreement.
    ``(f) Preemption.--Nothing in this section shall be construed to 
preempt, alter, or affect a Federal, State, local, or tribal law that 
requires criminal history background checks, checks on the 
authorization of an individual to work in the United States, or other 
background checks of persons subject to security background checks 
under subsection (a)(1).
    ``(g) Definition of Security Background Check.--The term `security 
background check' means a review at no cost to any person subject to a 
security background check under subsection (a)(1) of the following for 
the purpose of identifying individuals who may pose a threat to 
chemical facility security, to national security, or of terrorism:
            ``(1) Relevant databases to verify and validate identity.
            ``(2) Relevant criminal history databases.
            ``(3) In the case of an alien (as defined in section 101 of 
        the Immigration and Nationality Act (8 U.S.C. 1101(a)(3))), the 
        relevant databases to determine the status of the alien under 
        the immigration laws of the United States.
            ``(4) The consolidated terrorist watchlist.
            ``(5) Other relevant information or databases, as 
        determined by the Secretary.
    ``(h) Savings Clause.--Nothing in this section shall be construed 
as creating any new right or modifying any existing right of an 
individual to appeal a determination by the Secretary as a result of a 
check against a terrorist watch list.

``SEC. 2116. CITIZEN SUITS.

    ``(a) In General.--Except as provided in subsection (c), any person 
may commence a civil action on the person's own behalf--
            ``(1) against any person (including the United States and 
        any other governmental instrumentality or agency, to the extent 
        permitted by the eleventh amendment to the Constitution) who is 
        alleged to be in violation of any standard, regulation, 
        condition, requirement, prohibition, or order which has become 
        effective pursuant to this title; or
            ``(2) against the Secretary, if there is an alleged failure 
        of the Secretary to perform any act or duty under this title 
        that is not discretionary for the Secretary.
    ``(b) Court of Jurisdiction.--
            ``(1) In general.--Any action under subsection (a)(1) shall 
        be brought in the district court for the district in which the 
        alleged violation occurred. Any action brought under subsection 
        (a)(2) may be brought in the district court for the district in 
        which the alleged violation occurred or in the United States 
        District Court of the District of Columbia.
            ``(2) Relief.--The district court shall have jurisdiction, 
        without regard to the amount in controversy or the citizenship 
        of the parties, to enforce the standard, regulation, condition, 
        requirement, prohibition, or order, referred to in subsection 
        (a)(1), to order such person to take such other action as may 
        be necessary, or both, or to order the Secretary to perform the 
        act or duty referred to in subsection (a)(2), as the case may 
        be, and to apply any appropriate civil penalties under section 
        2107.
    ``(c) Actions Prohibited.--No action may be commenced under 
subsection (a)--
            ``(1) prior to 60 days after the date on which the person 
        commencing the action has given notice of the alleged violation 
        to--
                    ``(A) the Secretary; and
                    ``(B) in the case of an action under subsection 
                (a), any alleged violator of such standard, regulation, 
                condition, requirement, prohibition, or order; or
            ``(2) if the Secretary has commenced and is diligently 
        prosecuting a civil or criminal action in a court of the United 
        States or a State, or has issued an administrative order, to 
        require compliance with such standard, regulation, condition, 
        requirement, prohibition, or order.
    ``(d) Notice.--Notice under this section shall be given in such 
manner as the Secretary shall prescribe by regulation.
    ``(e) Intervention.--In any action under this section the 
Secretary, if not a party, may intervene as a matter of right.
    ``(f) Costs.--The court, in issuing any final order in any action 
brought pursuant to this section, may award costs of litigation 
(including reasonable attorney and expert witness fees) to the 
prevailing or substantially prevailing party, whenever the court 
determines such an award is appropriate. The court may, if a temporary 
restraining order or preliminary injunction is sought, require the 
filing of a bond or equivalent security in accordance with the Federal 
Rules of Civil Procedure.
    ``(g) Other Rights Preserved.--Nothing in this section shall 
restrict any right which any person (or class of persons) may have 
under any statute or common law.

``SEC. 2117. ANNUAL REPORT TO CONGRESS.

    ``(a) Annual Report.--Not later than one year after the date of the 
enactment of this title, annually thereafter for the next four years, 
and biennially thereafter, the Secretary shall submit to the Committee 
on Homeland Security and the Committee on Energy and Commerce of the 
House of Representatives and the Committee on Homeland Security and 
Governmental Affairs and the Committee on Environment and Public Works 
of the Senate a report on progress in achieving compliance with this 
title. Each such report shall include the following:
            ``(1) A qualitative discussion of how covered chemical 
        facilities, differentiated by tier, have reduced the risks of 
        chemical facility terrorist incidents at such facilities, 
        including--
                    ``(A) a generalized summary of measures implemented 
                by covered chemical facilities in order to meet each 
                risk-based chemical facility performance standard 
                established by this title, and those that the 
                facilities already had in place--
                            ``(i) in the case of the first report under 
                        this section, before the issuance of the final 
                        rule implementing the regulations known as the 
                        `Chemical Facility Anti-Terrorism Standards', 
                        issued on April 9, 2007; and
                            ``(ii) in the case of each subsequent 
                        report, since the submittal of the most recent 
                        report submitted under this section; and
                    ``(B) any other generalized summary the Secretary 
                deems appropriate to describe the measures covered 
                chemical facilities are implementing to comply with the 
                requirements of this title.
            ``(2) A quantitative summary of how the covered chemical 
        facilities, differentiated by tier, are complying with the 
        requirements of this title during the period covered by the 
        report and how the Secretary is implementing and enforcing such 
        requirements during such period, including--
                    ``(A) the number of chemical facilities that 
                provided the Secretary with information about 
                possessing substances of concern, as described in 
                section 2102(b)(2);
                    ``(B) the number of covered chemical facilities 
                assigned to each tier;
                    ``(C) the number of security vulnerability 
                assessments and site security plans submitted by 
                covered chemical facilities;
                    ``(D) the number of security vulnerability 
                assessments and site security plans approved and 
                disapproved by the Secretary;
                    ``(E) the number of covered chemical facilities 
                without approved security vulnerability assessments or 
                site security plans;
                    ``(F) the number of chemical facilities that have 
                been assigned to a different tier or are no longer 
                regulated by the Secretary due to implementation of a 
                method to reduce the consequences of a terrorist 
                attack;
                    ``(G) the number of orders for compliance issued by 
                the Secretary;
                    ``(H) the administrative penalties assessed by the 
                Secretary for non-compliance with the requirements of 
                this title;
                    ``(I) the civil penalties assessed by the court for 
                non-compliance with the requirements of this title; and
                    ``(J) any other regulatory data the Secretary deems 
                appropriate to describe facility compliance with the 
                requirements of this title and the Secretary's 
                implementation of such requirements.
    ``(b) Public Availability.--A report submitted under this section 
shall be made publicly available.

``SEC. 2118. AUTHORIZATION OF APPROPRIATIONS.

    ``There is authorized to be appropriated to the Secretary of 
Homeland Security to carry out this title--
            ``(1) $325,000,000 for fiscal year 2011, of which 
        $100,000,000 shall be made available to provide funding for 
        methods to reduce the consequences of a terrorist attack;
            ``(2) $300,000,000 for fiscal year 2012, of which 
        $75,000,000 shall be made available to provide funding for 
        methods to reduce the consequences of a terrorist attack; and
            ``(3) $275,000,000 for fiscal year 2013, of which 
        $50,000,000 shall be made available to provide funding for 
        methods to reduce the consequences of a terrorist attack.''.
    (b) Clerical Amendment.--The table of contents in section 1(b) of 
such Act is amended by adding at the end the following:

  ``TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES

``Sec. 2101. Definitions.
``Sec. 2102. Risk-based designation and ranking of chemical facilities.
``Sec. 2103. Security vulnerability assessments and site security 
                            plans.
``Sec. 2104. Site inspections.
``Sec. 2105. Records.
``Sec. 2106. Timely sharing of threat information.
``Sec. 2107. Enforcement.
``Sec. 2108. Whistleblower protections.
``Sec. 2109. Federal preemption.
``Sec. 2110. Protection of information.
``Sec. 2111. Methods to reduce the consequences of a terrorist attack.
``Sec. 2112. Applicability.
``Sec. 2113. Savings clause.
``Sec. 2114. Office of Chemical Facility Security.
``Sec. 2115. Security background checks of covered individuals at 
                            certain chemical facilities.
``Sec. 2116. Citizen suits.
``Sec. 2117. Annual report to Congress.
``Sec. 2118. Authorization of appropriations.''.
    (c) Conforming Repeal.--
            (1) Repeal.--The Department of Homeland Security 
        Appropriations Act, 2007 (Public Law 109-295) is amended by 
        striking section 550.
            (2) Effective date.--The amendment made by paragraph (1) 
        shall take effect on October 1, 2009.
    (d) Treatment of CFATS Regulations.--
            (1) Sense of congress.--It is the sense of Congress that 
        the Secretary of Homeland Security was granted statutory 
        authority under section 550 of the Department of Homeland 
        Security Appropriations Act (Public Law 109-295) to regulate 
        security practices at chemical facilities until October 1, 
        2009. Pursuant to that section the Secretary prescribed 
        regulations known as the Chemical Facility Anti-Terrorism 
        Standards, or ``CFATS''.
            (2) Use of current regulations.--In carrying out the 
        requirements of title XXI of the Homeland Security Act of 2002, 
        as added by subsection (a), the Secretary may, to the extent 
        that the Secretary determines is appropriate, use any of the 
        regulations known as CFATS regulations, as in effect 
        immediately before the date of the enactment of this Act, that 
        the Secretary determines carry out such requirements.
            (3) Amendment of cfats.--The Secretary shall amend the 
        regulations known as the Chemical Facility Anti-Terrorism 
        Standards to ensure that such regulations fulfill the 
        requirements of this Act and the amendments made by this Act, 
        to the extent that the requirements of this Act and the 
        amendments made by this Act differ from the requirements of 
        such regulations, as in effect on the date of the enactment of 
        this Act.
            (4) Use of tools developed for cfats.--In carrying out this 
        Act and the amendments made by this Act, to the extent 
        determined appropriate by the Secretary, the Secretary may use 
        such rules or tools developed for purposes of the regulations 
        known as the Chemical Facility Anti-Terrorism Standards, 
        including the list of substances of concern, usually referred 
        to as ``Appendix A'' and the chemical security assessment tool 
        (which includes facility registration, a top-screen 
        questionnaire, a security vulnerability assessment tool, a site 
        security plan template, and a chemical vulnerability 
        information repository).
    (e) Facilities Covered by CFATS.--The owner or operator of a 
covered chemical facility, who, before the effective date of the final 
regulations issued under title XXI of the Homeland Security Act of 
2002, as added by subsection (a), submits a security vulnerability 
assessment or site security plan under the regulations known as CFATS 
regulations, as in effect immediately before the enactment of this Act, 
shall be required to update or amend the facility's security 
vulnerability assessment and site security plan to reflect any 
additional requirements of this Act or the amendments made by this Act, 
according to a timeline established by the Secretary.
    (f) Consultation With Other Persons.--In developing and carrying 
out the regulations under title XXI of the Homeland Security Act of 
2002, as added by subsection (a), the Secretary shall consult with the 
Administrator of the Environmental Protection Agency, and other 
persons, as appropriate, regarding--
            (1) the designation of substances of concern;
            (2) methods to reduce the consequences of a terrorist 
        attack;
            (3) security at co-owned and co-operated drinking water and 
        wastewater facilities;
            (4) the treatment of protected information; and
            (5) such other matters as the Secretary determines 
        necessary.
    (g) Deadline for Regulations.--
            (1) Proposed rule.--The Secretary of Homeland Security 
        shall promulgate a proposed rule to fulfill the requirements of 
        title XXI of the Homeland Security Act of 2002, as added by 
        subsection (a), not later than 6 months after the date of the 
        enactment of this Act.
            (2) Final rule.--The Secretary shall, after proper notice 
        and opportunity for public comment, promulgate a final rule to 
        fulfill the requirements of such title not later than 18 months 
        after the date of the enactment of this Act.
                                 <all>