[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4007 Engrossed Amendment Senate (EAS)]
In the Senate of the United States,
December 10, 2014.
Resolved, That the bill from the House of Representatives (H.R.
4007) entitled ``An Act to recodify and reauthorize the Chemical
Facility Anti-Terrorism Standards Program.'', do pass with the
following
AMENDMENT:
In lieu of the matter proposed to be inserted, insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting and Securing Chemical
Facilities from Terrorist Attacks Act of 2014''.
SEC. 2. CHEMICAL FACILITY ANTI-TERRORISM STANDARDS PROGRAM.
(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:
``TITLE XXI--CHEMICAL FACILITY ANTI-TERRORISM STANDARDS
``SEC. 2101. DEFINITIONS.
``In this title--
``(1) the term `CFATS regulation' means--
``(A) an existing CFATS regulation; and
``(B) any regulation or amendment to an existing
CFATS regulation issued pursuant to the authority under
section 2107;
``(2) the term `chemical facility of interest' means a
facility that--
``(A) holds, or that the Secretary has a reasonable
basis to believe holds, a chemical of interest, as
designated under Appendix A to part 27 of title 6, Code
of Federal Regulations, or any successor thereto, at a
threshold quantity set pursuant to relevant risk-
related security principles; and
``(B) is not an excluded facility;
``(3) the term `covered chemical facility' means a facility
that--
``(A) the Secretary--
``(i) identifies as a chemical facility of
interest; and
``(ii) based upon review of the facility's
Top-Screen, determines meets the risk criteria
developed under section 2102(e)(2)(B); and
``(B) is not an excluded facility;
``(4) the term `excluded facility' means--
``(A) a facility regulated under the Maritime
Transportation Security Act of 2002 (Public Law 107-
295; 116 Stat. 2064);
``(B) a public water system, as that term is
defined in section 1401 of the Safe Drinking Water Act
(42 U.S.C. 300f);
``(C) a Treatment Works, as that term is defined in
section 212 of the Federal Water Pollution Control Act
(33 U.S.C. 1292);
``(D) a facility owned or operated by the
Department of Defense or the Department of Energy; or
``(E) a facility subject to regulation by the
Nuclear Regulatory Commission, or by a State that has
entered into an agreement with the Nuclear Regulatory
Commission under section 274 b. of the Atomic Energy
Act of 1954 (42 U.S.C. 2021(b)) to protect against
unauthorized access of any material, activity, or
structure licensed by the Nuclear Regulatory
Commission;
``(5) the term `existing CFATS regulation' means--
``(A) a regulation promulgated under section 550 of
the Department of Homeland Security Appropriations Act,
2007 (Public Law 109-295; 6 U.S.C. 121 note) that is in
effect on the day before the date of enactment of the
Protecting and Securing Chemical Facilities from
Terrorist Attacks Act of 2014; and
``(B) a Federal Register notice or other published
guidance relating to section 550 of the Department of
Homeland Security Appropriations Act, 2007 that is in
effect on the day before the date of enactment of the
Protecting and Securing Chemical Facilities from
Terrorist Attacks Act of 2014;
``(6) the term `expedited approval facility' means a
covered chemical facility for which the owner or operator
elects to submit a site security plan in accordance with
section 2102(c)(4);
``(7) the term `facially deficient', relating to a site
security plan, means a site security plan that does not support
a certification that the security measures in the plan address
the security vulnerability assessment and the risk-based
performance standards for security for the facility, based on a
review of--
``(A) the facility's site security plan;
``(B) the facility's Top-Screen;
``(C) the facility's security vulnerability
assessment; or
``(D) any other information that--
``(i) the facility submits to the
Department; or
``(ii) the Department obtains from a public
source or other source;
``(8) the term `guidance for expedited approval facilities'
means the guidance issued under section 2102(c)(4)(B)(i);
``(9) the term `risk assessment' means the Secretary's
application of relevant risk criteria identified in section
2102(e)(2)(B);
``(10) the term `terrorist screening database' means the
terrorist screening database maintained by the Federal
Government Terrorist Screening Center or its successor;
``(11) the term `tier' has the meaning given the term in
section 27.105 of title 6, Code of Federal Regulations, or any
successor thereto;
``(12) the terms `tiering' and `tiering methodology' mean
the procedure by which the Secretary assigns a tier to each
covered chemical facility based on the risk assessment for that
covered chemical facility;
``(13) the term `Top-Screen' has the meaning given the term
in section 27.105 of title 6, Code of Federal Regulations, or
any successor thereto; and
``(14) the term `vulnerability assessment' means the
identification of weaknesses in the security of a chemical
facility of interest.
``SEC. 2102. CHEMICAL FACILITY ANTI-TERRORISM STANDARDS PROGRAM.
``(a) Program Established.--
``(1) In general.--There is in the Department a Chemical
Facility Anti-Terrorism Standards Program.
``(2) Requirements.--In carrying out the Chemical Facility
Anti-Terrorism Standards Program, the Secretary shall--
``(A) identify--
``(i) chemical facilities of interest; and
``(ii) covered chemical facilities;
``(B) require each chemical facility of interest to
submit a Top-Screen and any other information the
Secretary determines necessary to enable the Department
to assess the security risks associated with the
facility;
``(C) establish risk-based performance standards
designed to address high levels of security risk at
covered chemical facilities; and
``(D) require each covered chemical facility to--
``(i) submit a security vulnerability
assessment; and
``(ii) develop, submit, and implement a
site security plan.
``(b) Security Measures.--
``(1) In general.--A facility, in developing a site
security plan as required under subsection (a), shall include
security measures that, in combination, appropriately address
the security vulnerability assessment and the risk-based
performance standards for security for the facility.
``(2) Employee input.--To the greatest extent practicable,
a facility's security vulnerability assessment and site
security plan shall include input from at least 1 facility
employee and, where applicable, 1 employee representative from
the bargaining agent at that facility, each of whom possesses,
in the determination of the facility's security officer,
relevant knowledge, experience, training, or education as
pertains to matters of site security.
``(c) Approval or Disapproval of Site Security Plans.--
``(1) In general.--
``(A) Review.--Except as provided in paragraph (4),
the Secretary shall review and approve or disapprove
each site security plan submitted pursuant to
subsection (a).
``(B) Bases for disapproval.--The Secretary--
``(i) may not disapprove a site security
plan based on the presence or absence of a
particular security measure; and
``(ii) shall disapprove a site security
plan if the plan fails to satisfy the risk-
based performance standards established
pursuant to subsection (a)(2)(C).
``(2) Alternative security programs.--
``(A) Authority to approve.--
``(i) In general.--The Secretary may
approve an alternative security program
established by a private sector entity or a
Federal, State, or local authority or under
other applicable laws, if the Secretary
determines that the requirements of the program
meet the requirements under this section.
``(ii) Additional security measures.--If
the requirements of an alternative security
program do not meet the requirements under this
section, the Secretary may recommend additional
security measures to the program that will
enable the Secretary to approve the program.
``(B) Satisfaction of site security plan
requirement.--A covered chemical facility may satisfy
the site security plan requirement under subsection (a)
by adopting an alternative security program that the
Secretary has--
``(i) reviewed and approved under
subparagraph (A); and
``(ii) determined to be appropriate for the
operations and security concerns of the covered
chemical facility.
``(3) Site security plan assessments.--
``(A) Risk assessment policies and procedures.--In
approving or disapproving a site security plan under
this subsection, the Secretary shall employ the risk
assessment policies and procedures developed under this
title.
``(B) Previously approved plans.--In the case of a
covered chemical facility for which the Secretary
approved a site security plan before the date of
enactment of the Protecting and Securing Chemical
Facilities from Terrorist Attacks Act of 2014, the
Secretary may not require the facility to resubmit the
site security plan solely by reason of the enactment of
this title.
``(4) Expedited approval program.--
``(A) In general.--A covered chemical facility
assigned to tier 3 or 4 may meet the requirement to
develop and submit a site security plan under
subsection (a)(2)(D) by developing and submitting to
the Secretary--
``(i) a site security plan and the
certification described in subparagraph (C); or
``(ii) a site security plan in conformance
with a template authorized under subparagraph
(H).
``(B) Guidance for expedited approval facilities.--
``(i) In general.--Not later than 180 days
after the date of enactment of the Protecting
and Securing Chemical Facilities from Terrorist
Attacks Act of 2014, the Secretary shall issue
guidance for expedited approval facilities that
identifies specific security measures that are
sufficient to meet the risk-based performance
standards.
``(ii) Material deviation from guidance.--
If a security measure in the site security plan
of an expedited approval facility materially
deviates from a security measure in the
guidance for expedited approval facilities, the
site security plan shall include an explanation
of how such security measure meets the risk-
based performance standards.
``(iii) Applicability of other laws to
development and issuance of initial guidance.--
During the period before the Secretary has met
the deadline under clause (i), in developing
and issuing, or amending, the guidance for
expedited approval facilities under this
subparagraph and in collecting information from
expedited approval facilities, the Secretary
shall not be subject to--
``(I) section 553 of title 5,
United States Code;
``(II) subchapter I of chapter 35
of title 44, United States Code; or
``(III) section 2107(b) of this
title.
``(C) Certification.--The owner or operator of an
expedited approval facility shall submit to the
Secretary a certification, signed under penalty of
perjury, that--
``(i) the owner or operator is familiar
with the requirements of this title and part 27
of title 6, Code of Federal Regulations, or any
successor thereto, and the site security plan
being submitted;
``(ii) the site security plan includes the
security measures required by subsection (b);
``(iii)(I) the security measures in the
site security plan do not materially deviate
from the guidance for expedited approval
facilities except where indicated in the site
security plan;
``(II) any deviations from the guidance for
expedited approval facilities in the site
security plan meet the risk-based performance
standards for the tier to which the facility is
assigned; and
``(III) the owner or operator has provided
an explanation of how the site security plan
meets the risk-based performance standards for
any material deviation;
``(iv) the owner or operator has visited,
examined, documented, and verified that the
expedited approval facility meets the criteria
set forth in the site security plan;
``(v) the expedited approval facility has
implemented all of the required performance
measures outlined in the site security plan or
set out planned measures that will be
implemented within a reasonable time period
stated in the site security plan;
``(vi) each individual responsible for
implementing the site security plan has been
made aware of the requirements relevant to the
individual's responsibility contained in the
site security plan and has demonstrated
competency to carry out those requirements;
``(vii) the owner or operator has
committed, or, in the case of planned measures
will commit, the necessary resources to fully
implement the site security plan; and
``(viii) the planned measures include an
adequate procedure for addressing events beyond
the control of the owner or operator in
implementing any planned measures.
``(D) Deadline.--
``(i) In general.--Not later than 120 days
after the date described in clause (ii), the
owner or operator of an expedited approval
facility shall submit to the Secretary the site
security plan and the certification described
in subparagraph (C).
``(ii) Date.--The date described in this
clause is--
``(I) for an expedited approval
facility that was assigned to tier 3 or
4 under existing CFATS regulations
before the date of enactment of the
Protecting and Securing Chemical
Facilities from Terrorist Attacks Act
of 2014, the date that is 210 days
after the date of enactment of that
Act; and
``(II) for any expedited approval
facility not described in subclause
(I), the later of--
``(aa) the date on which
the expedited approval facility
is assigned to tier 3 or 4
under subsection (e)(2)(A); or
``(bb) the date that is 210
days after the date of
enactment of the Protecting and
Securing Chemical Facilities
from Terrorist Attacks Act of
2014.
``(iii) Notice.--An owner or operator of an
expedited approval facility shall notify the
Secretary of the intent of the owner or
operator to certify the site security plan for
the expedited approval facility not later than
30 days before the date on which the owner or
operator submits the site security plan and
certification described in subparagraph (C).
``(E) Compliance.--
``(i) In general.--For an expedited
approval facility submitting a site security
plan and certification in accordance with
subparagraphs (A), (B), (C), and (D)--
``(I) the expedited approval
facility shall comply with all of the
requirements of its site security plan;
and
``(II) the Secretary--
``(aa) except as provided
in subparagraph (G), may not
disapprove the site security
plan; and
``(bb) may audit and
inspect the expedited approval
facility under subsection (d)
to verify compliance with its
site security plan.
``(ii) Noncompliance.--If the Secretary
determines an expedited approval facility is
not in compliance with the requirements of the
site security plan or is otherwise in violation
of this title, the Secretary may enforce
compliance in accordance with section 2104.
``(F) Amendments to site security plan.--
``(i) Requirement.--
``(I) In general.--If the owner or
operator of an expedited approval
facility amends a site security plan
submitted under subparagraph (A), the
owner or operator shall submit the
amended site security plan and a
certification relating to the amended
site security plan that contains the
information described in subparagraph
(C).
``(II) Technical amendments.--For
purposes of this clause, an amendment
to a site security plan includes any
technical amendment to the site
security plan.
``(ii) Amendment required.--The owner or
operator of an expedited approval facility
shall amend the site security plan if--
``(I) there is a change in the
design, construction, operation, or
maintenance of the expedited approval
facility that affects the site security
plan;
``(II) the Secretary requires
additional security measures or
suspends a certification and recommends
additional security measures under
subparagraph (G); or
``(III) the owner or operator
receives notice from the Secretary of a
change in tiering under subsection
(e)(3).
``(iii) Deadline.--An amended site security
plan and certification shall be submitted under
clause (i)--
``(I) in the case of a change in
design, construction, operation, or
maintenance of the expedited approval
facility that affects the security
plan, not later than 120 days after the
date on which the change in design,
construction, operation, or maintenance
occurred;
``(II) in the case of the Secretary
requiring additional security measures
or suspending a certification and
recommending additional security
measures under subparagraph (G), not
later than 120 days after the date on
which the owner or operator receives
notice of the requirement for
additional security measures or
suspension of the certification and
recommendation of additional security
measures; and
``(III) in the case of a change in
tiering, not later than 120 days after
the date on which the owner or operator
receives notice under subsection
(e)(3).
``(G) Facially deficient site security plans.--
``(i) Prohibition.--Notwithstanding
subparagraph (A) or (E), the Secretary may
suspend the authority of a covered chemical
facility to certify a site security plan if the
Secretary--
``(I) determines the certified site
security plan or an amended site
security plan is facially deficient;
and
``(II) not later than 100 days
after the date on which the Secretary
receives the site security plan and
certification, provides the covered
chemical facility with written
notification that the site security
plan is facially deficient, including a
clear explanation of each deficiency in
the site security plan.
``(ii) Additional security measures.--
``(I) In general.--If, during or
after a compliance inspection of an
expedited approval facility, the
Secretary determines that planned or
implemented security measures in the
site security plan of the facility are
insufficient to meet the risk-based
performance standards based on
misrepresentation, omission, or an
inadequate description of the site, the
Secretary may--
``(aa) require additional
security measures; or
``(bb) suspend the
certification of the facility.
``(II) Recommendation of additional
security measures.--If the Secretary
suspends the certification of an
expedited approval facility under
subclause (I), the Secretary shall--
``(aa) recommend specific
additional security measures
that, if made part of the site
security plan by the facility,
would enable the Secretary to
approve the site security plan;
and
``(bb) provide the facility
an opportunity to submit a new
or modified site security plan
and certification under
subparagraph (A).
``(III) Submission; review.--If an
expedited approval facility determines
to submit a new or modified site
security plan and certification as
authorized under subclause (II)(bb)--
``(aa) not later than 90
days after the date on which
the facility receives
recommendations under subclause
(II)(aa), the facility shall
submit the new or modified plan
and certification; and
``(bb) not later than 45
days after the date on which
the Secretary receives the new
or modified plan under item
(aa), the Secretary shall
review the plan and determine
whether the plan is facially
deficient.
``(IV) Determination not to include
additional security measures.--
``(aa) Revocation of
certification.--If an expedited
approval facility does not
agree to include in its site
security plan specific
additional security measures
recommended by the Secretary
under subclause (II)(aa), or
does not submit a new or
modified site security plan in
accordance with subclause
(III), the Secretary may revoke
the certification of the
facility by issuing an order
under section 2104(a)(1)(B).
``(bb) Effect of
revocation.--If the Secretary
revokes the certification of an
expedited approval facility
under item (aa) by issuing an
order under section
2104(a)(1)(B)--
``(AA) the order
shall require the owner
or operator of the
facility to submit a
site security plan or
alternative security
program for review by
the Secretary review
under subsection
(c)(1); and
``(BB) the facility
shall no longer be
eligible to certify a
site security plan
under this paragraph.
``(V) Facial deficiency.--If the
Secretary determines that a new or
modified site security plan submitted
by an expedited approval facility under
subclause (III) is facially deficient--
``(aa) not later than 120
days after the date of the
determination, the owner or
operator of the facility shall
submit a site security plan or
alternative security program
for review by the Secretary
under subsection (c)(1); and
``(bb) the facility shall
no longer be eligible to
certify a site security plan
under this paragraph.
``(H) Templates.--
``(i) In general.--The Secretary may
develop prescriptive site security plan
templates with specific security measures to
meet the risk-based performance standards under
subsection (a)(2)(C) for adoption and
certification by a covered chemical facility
assigned to tier 3 or 4 in lieu of developing
and certifying its own plan.
``(ii) Applicability of other laws to
development and issuance of initial site
security plan templates and related guidance.--
During the period before the Secretary has met
the deadline under subparagraph (B)(i), in
developing and issuing, or amending, the site
security plan templates under this
subparagraph, in issuing guidance for
implementation of the templates, and in
collecting information from expedited approval
facilities, the Secretary shall not be subject
to--
``(I) section 553 of title 5,
United States Code;
``(II) subchapter I of chapter 35
of title 44, United States Code; or
``(III) section 2107(b) of this
title.
``(iii) Rule of construction.--Nothing in
this subparagraph shall be construed to prevent
a covered chemical facility from developing and
certifying its own security plan in accordance
with subparagraph (A).
``(I) Evaluation.--
``(i) In general.--Not later than 18 months
after the date of enactment of the Protecting
and Securing Chemical Facilities from Terrorist
Attacks Act of 2014, the Secretary shall take
any appropriate action necessary for a full
evaluation of the expedited approval program
authorized under this paragraph, including
conducting an appropriate number of
inspections, as authorized under subsection
(d), of expedited approval facilities.
``(ii) Report.--Not later than 18 months
after the date of enactment of the Protecting
and Securing Chemical Facilities from Terrorist
Attacks Act of 2014, 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 a report that contains--
``(I)(aa) the number of eligible
facilities using the expedited approval
program authorized under this
paragraph; and
``(bb) the number of facilities
that are eligible for the expedited
approval program but are using the
standard process for developing and
submitting a site security plan under
subsection (a)(2)(D);
``(II) any costs and efficiencies
associated with the expedited approval
program;
``(III) the impact of the expedited
approval program on the backlog for
site security plan approval and
authorization inspections;
``(IV) an assessment of the ability
of expedited approval facilities to
submit facially sufficient site
security plans;
``(V) an assessment of any impact
of the expedited approval program on
the security of chemical facilities;
and
``(VI) a recommendation by the
Secretary on the frequency of
compliance inspections that may be
required for expedited approval
facilities.
``(d) Compliance.--
``(1) Audits and inspections.--
``(A) Definitions.--In this paragraph--
``(i) the term `nondepartmental'--
``(I) with respect to personnel,
means personnel that is not employed by
the Department; and
``(II) with respect to an entity,
means an entity that is not a component
or other authority of the Department;
and
``(ii) the term `nongovernmental'--
``(I) with respect to personnel,
means personnel that is not employed by
the Federal Government; and
``(II) with respect to an entity,
means an entity that is not an agency,
department, or other authority of the
Federal Government.
``(B) Authority to conduct audits and
inspections.--The Secretary shall conduct audits or
inspections under this title using--
``(i) employees of the Department;
``(ii) nondepartmental or nongovernmental
personnel approved by the Secretary; or
``(iii) a combination of individuals
described in clauses (i) and (ii).
``(C) Support personnel.--The Secretary may use
nongovernmental personnel to provide administrative and
logistical services in support of audits and
inspections under this title.
``(D) Reporting structure.--
``(i) Nondepartmental and nongovernmental
audits and inspections.--Any audit or
inspection conducted by an individual employed
by a nondepartmental or nongovernmental entity
shall be assigned in coordination with a
regional supervisor with responsibility for
supervising inspectors within the
Infrastructure Security Compliance Division of
the Department for the region in which the
audit or inspection is to be conducted.
``(ii) Requirement to report.--While an
individual employed by a nondepartmental or
nongovernmental entity is in the field
conducting an audit or inspection under this
subsection, the individual shall report to the
regional supervisor with responsibility for
supervising inspectors within the
Infrastructure Security Compliance Division of
the Department for the region in which the
individual is operating.
``(iii) Approval.--The authority to approve
a site security plan under subsection (c) or
determine if a covered chemical facility is in
compliance with an approved site security plan
shall be exercised solely by the Secretary or a
designee of the Secretary within the
Department.
``(E) Standards for auditors and inspectors.--The
Secretary shall prescribe standards for the training
and retraining of each individual used by the
Department as an auditor or inspector, including each
individual employed by the Department and all
nondepartmental or nongovernmental personnel,
including--
``(i) minimum training requirements for new
auditors and inspectors;
``(ii) retraining requirements;
``(iii) minimum education and experience
levels;
``(iv) the submission of information as
required by the Secretary to enable
determination of whether the auditor or
inspector has a conflict of interest;
``(v) the proper certification or
certifications necessary to handle chemical-
terrorism vulnerability information (as defined
in section 27.105 of title 6, Code of Federal
Regulations, or any successor thereto);
``(vi) the reporting of any issue of non-
compliance with this section to the Secretary
within 24 hours; and
``(vii) any additional qualifications for
fitness of duty as the Secretary may require.
``(F) Conditions for nongovernmental auditors and
inspectors.--If the Secretary arranges for an audit or
inspection under subparagraph (B) to be carried out by
a nongovernmental entity, the Secretary shall--
``(i) prescribe standards for the
qualification of the individuals who carry out
such audits and inspections that are
commensurate with the standards for similar
Government auditors or inspectors; and
``(ii) ensure that any duties carried out
by a nongovernmental entity are not inherently
governmental functions.
``(2) Personnel surety.--
``(A) Personnel surety program.--For purposes of
this title, the Secretary shall establish and carry out
a Personnel Surety Program that--
``(i) does not require an owner or operator
of a covered chemical facility that voluntarily
participates in the program to submit
information about an individual more than 1
time;
``(ii) provides a participating owner or
operator of a covered chemical facility with
relevant information about an individual based
on vetting the individual against the terrorist
screening database, to the extent that such
feedback is necessary for the facility to be in
compliance with regulations promulgated under
this title; and
``(iii) provides redress to an individual--
``(I) whose information was vetted
against the terrorist screening
database under the program; and
``(II) who believes that the
personally identifiable information
submitted to the Department for such
vetting by a covered chemical facility,
or its designated representative, was
inaccurate.
``(B) Personnel surety program implementation.--To
the extent that a risk-based performance standard
established under subsection (a) requires identifying
individuals with ties to terrorism--
``(i) a covered chemical facility--
``(I) may satisfy its obligation
under the standard by using any Federal
screening program that periodically
vets individuals against the terrorist
screening database, or any successor
program, including the Personnel Surety
Program established under subparagraph
(A); and
``(II) shall--
``(aa) accept a credential
from a Federal screening
program described in subclause
(I) if an individual who is
required to be screened
presents such a credential; and
``(bb) address in its site
security plan or alternative
security program the measures
it will take to verify that a
credential or documentation
from a Federal screening
program described in subclause
(I) is current;
``(ii) visual inspection shall be
sufficient to meet the requirement under clause
(i)(II)(bb), but the facility should consider
other means of verification, consistent with
the facility's assessment of the threat posed
by acceptance of such credentials; and
``(iii) the Secretary may not require a
covered chemical facility to submit any
information about an individual unless the
individual--
``(I) is to be vetted under the
Personnel Surety Program; or
``(II) has been identified as
presenting a terrorism security risk.
``(C) Rights unaffected.--Nothing in this section
shall supersede the ability--
``(i) of a facility to maintain its own
policies regarding the access of individuals to
restricted areas or critical assets; or
``(ii) of an employing facility and a
bargaining agent, where applicable, to
negotiate as to how the results of a background
check may be used by the facility with respect
to employment status.
``(3) Availability of information.--The Secretary shall
share with the owner or operator of a covered chemical facility
any information that the owner or operator needs to comply with
this section.
``(e) Responsibilities of the Secretary.--
``(1) Identification of chemical facilities of interest.--
In carrying out this title, the Secretary shall consult with
the heads of other Federal agencies, States and political
subdivisions thereof, relevant business associations, and
public and private labor organizations to identify all chemical
facilities of interest.
``(2) Risk assessment.--
``(A) In general.--For purposes of this title, the
Secretary shall develop a security risk assessment
approach and corresponding tiering methodology for
covered chemical facilities that incorporates the
relevant elements of risk, including threat,
vulnerability, and consequence.
``(B) Criteria for determining security risk.--The
criteria for determining the security risk of terrorism
associated with a covered chemical facility shall take
into account--
``(i) relevant threat information;
``(ii) potential severe economic
consequences and the potential loss of human
life in the event of the facility being subject
to attack, compromise, infiltration, or
exploitation by terrorists; and
``(iii) vulnerability of the facility to
attack, compromise, infiltration, or
exploitation by terrorists.
``(3) Changes in tiering.--
``(A) Maintenance of records.--The Secretary shall
document the basis for each instance in which--
``(i) tiering for a covered chemical
facility is changed; or
``(ii) a covered chemical facility is
determined to no longer be subject to the
requirements under this title.
``(B) Required information.--The records maintained
under subparagraph (A) shall include information on
whether and how the Secretary confirmed the information
that was the basis for the change or determination
described in subparagraph (A).
``(4) Semiannual performance reporting.--Not later than 6
months after the date of enactment of the Protecting and
Securing Chemical Facilities from Terrorist Attacks Act of
2014, and not less frequently than once every 6 months
thereafter, 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 a report that
includes, for the period covered by the report--
``(A) the number of covered chemical facilities in
the United States;
``(B) information--
``(i) describing--
``(I) the number of instances in
which the Secretary--
``(aa) placed a covered
chemical facility in a lower
risk tier; or
``(bb) determined that a
facility that had previously
met the criteria for a covered
chemical facility under section
2101(3) no longer met the
criteria; and
``(II) the basis, in summary form,
for each action or determination under
subclause (I); and
``(ii) that is provided in a sufficiently
anonymized form to ensure that the information
does not identify any specific facility or
company as the source of the information when
viewed alone or in combination with other
public information;
``(C) the average number of days spent reviewing
site security or an alternative security program for a
covered chemical facility prior to approval;
``(D) the number of covered chemical facilities
inspected;
``(E) the average number of covered chemical
facilities inspected per inspector; and
``(F) any other information that the Secretary
determines will be helpful to Congress in evaluating
the performance of the Chemical Facility Anti-Terrorism
Standards Program.
``SEC. 2103. PROTECTION AND SHARING OF INFORMATION.
``(a) In General.--Notwithstanding any other provision of law,
information developed under this title, including vulnerability
assessments, site security plans, and other security related
information, records, and documents shall be given protections from
public disclosure consistent with the protection of similar information
under section 70103(d) of title 46, United States Code.
``(b) Sharing of Information With States and Local Governments.--
Nothing in this section shall be construed to prohibit the sharing of
information developed under this title, as the Secretary determines
appropriate, with State and local government officials possessing a
need to know and the necessary security clearances, including law
enforcement officials and first responders, for the purpose of carrying
out this title, provided that such information may not be disclosed
pursuant to any State or local law.
``(c) Sharing of Information With First Responders.--
``(1) Requirement.--The Secretary shall provide to State,
local, and regional fusion centers (as that term is defined in
section 210A(j)(1)) and State and local government officials,
as the Secretary determines appropriate, such information as is
necessary to help ensure that first responders are properly
prepared and provided with the situational awareness needed to
respond to security incidents at covered chemical facilities.
``(2) Dissemination.--The Secretary shall disseminate
information under paragraph (1) through a medium or system
determined by the Secretary to be appropriate to ensure the
secure and expeditious dissemination of such information to
necessary selected individuals.
``(d) Enforcement Proceedings.--In any proceeding to enforce this
section, vulnerability assessments, site security plans, and other
information submitted to or obtained by the Secretary under this title,
and related vulnerability or security information, shall be treated as
if the information were classified information.
``(e) Availability of Information.--Notwithstanding any other
provision of law (including section 552(b)(3) of title 5, United States
Code), section 552 of title 5, United States Code (commonly known as
the `Freedom of Information Act') shall not apply to information
protected from public disclosure pursuant to subsection (a) of this
section.
``(f) Sharing of Information With Members of Congress.--Nothing in
this section shall prohibit the Secretary from disclosing information
developed under this title to a Member of Congress in response to a
request by a Member of Congress.
``SEC. 2104. CIVIL ENFORCEMENT.
``(a) Notice of Noncompliance.--
``(1) Notice.--If the Secretary determines that a covered
chemical facility is not in compliance with this title, the
Secretary shall--
``(A) provide the owner or operator of the facility
with--
``(i) not later than 14 days after date on
which the Secretary makes the determination, a
written notification of noncompliance that
includes a clear explanation of any deficiency
in the security vulnerability assessment or
site security plan; and
``(ii) an opportunity for consultation with
the Secretary or the Secretary's designee; and
``(B) issue to the owner or operator of the
facility an order to comply with this title by a date
specified by the Secretary in the order, which date
shall be not later than 180 days after the date on
which the Secretary issues the order.
``(2) Continued noncompliance.--If an owner or operator
remains noncompliant after the procedures outlined in paragraph
(1) have been executed, or demonstrates repeated violations of
this title, the Secretary may enter an order in accordance with
this section assessing a civil penalty, an order to cease
operations, or both.
``(b) Civil Penalties.--
``(1) Violations of orders.--Any person who violates an
order issued under this title shall be liable for a civil
penalty under section 70119(a) of title 46, United States Code.
``(2) Non-reporting chemical facilities of interest.--Any
owner of a chemical facility of interest who fails to comply
with, or knowingly submits false information under, this title
or the CFATS regulations shall be liable for a civil penalty
under section 70119(a) of title 46, United States Code.
``(c) Emergency Orders.--
``(1) In general.--Notwithstanding subsection (a) or any
site security plan or alternative security program approved
under this title, if the Secretary determines that there is an
imminent threat of death, serious illness, or severe personal
injury, due to a violation of this title or the risk of a
terrorist incident that may affect a chemical facility of
interest, the Secretary--
``(A) shall consult with the facility, if
practicable, on steps to mitigate the risk; and
``(B) may order the facility, without notice or
opportunity for a hearing, effective immediately or as
soon as practicable, to--
``(i) implement appropriate emergency
security measures; or
``(ii) cease or reduce some or all
operations, in accordance with safe shutdown
procedures, if the Secretary determines that
such a cessation or reduction of operations is
the most appropriate means to address the risk.
``(2) Limitation on delegation.--The Secretary may not
delegate the authority under paragraph (1) to any official
other than the Under Secretary responsible for overseeing
critical infrastructure protection, cybersecurity, and other
related programs of the Department appointed under section
103(a)(1)(H).
``(3) Limitation on authority.--The Secretary may exercise
the authority under this subsection only to the extent
necessary to abate the imminent threat determination under
paragraph (1).
``(4) Due process for facility owner or operator.--
``(A) Written orders.--An order issued by the
Secretary under paragraph (1) shall be in the form of a
written emergency order that--
``(i) describes the violation or risk that
creates the imminent threat;
``(ii) states the security measures or
order issued or imposed; and
``(iii) describes the standards and
procedures for obtaining relief from the order.
``(B) Opportunity for review.--After issuing an
order under paragraph (1) with respect to a chemical
facility of interest, the Secretary shall provide for
review of the order under section 554 of title 5 if a
petition for review is filed not later than 20 days
after the date on which the Secretary issues the order.
``(C) Expiration of effectiveness of order.--If a
petition for review of an order is filed under
subparagraph (B) and the review under that paragraph is
not completed by the last day of the 30-day period
beginning on the date on which the petition is filed,
the order shall vacate automatically at the end of that
period unless the Secretary determines, in writing,
that the imminent threat providing a basis for the
order continues to exist.
``(d) Right of Action.--Nothing in this title confers upon any
person except the Secretary or his or her designee a right of action
against an owner or operator of a covered chemical facility to enforce
any provision of this title.
``SEC. 2105. WHISTLEBLOWER PROTECTIONS.
``(a) Procedure for Reporting Problems.--
``(1) Establishment of a reporting procedure.--Not later
than 180 days after the date of enactment of the Protecting and
Securing Chemical Facilities from Terrorist Attacks Act of
2014, the Secretary shall establish, and provide information to
the public regarding, a procedure under which any employee or
contractor of a chemical facility of interest may submit a
report to the Secretary regarding a violation of a requirement
under this title.
``(2) Confidentiality.--The Secretary shall keep
confidential the identity of an individual who submits a report
under paragraph (1) and any such report shall be treated as a
record containing protected information to the extent that the
report does not consist of publicly available information.
``(3) Acknowledgment of receipt.--If a report submitted
under paragraph (1) identifies the individual making the
report, the Secretary shall promptly respond to the individual
directly and shall promptly acknowledge receipt of the report.
``(4) Steps to address problems.--The Secretary--
``(A) shall review and consider the information
provided in any report submitted under paragraph (1);
and
``(B) may take action under section 2104 of this
title if necessary to address any substantiated
violation of a requirement under this title identified
in the report.
``(5) Due process for facility owner or operator.--
``(A) In general.--If, upon the review described in
paragraph (4), the Secretary determines that a
violation of a provision of this title, or a regulation
prescribed under this title, has occurred, the
Secretary may--
``(i) institute a civil enforcement under
section 2104(a) of this title; or
``(ii) if the Secretary makes the
determination under section 2104(c), issue an
emergency order.
``(B) Written orders.--The action of the Secretary
under paragraph (4) shall be in a written form that--
``(i) describes the violation;
``(ii) states the authority under which the
Secretary is proceeding; and
``(iii) describes the standards and
procedures for obtaining relief from the order.
``(C) Opportunity for review.--After taking action
under paragraph (4), the Secretary shall provide for
review of the action if a petition for review is filed
within 20 calendar days of the date of issuance of the
order for the action.
``(D) Expiration of effectiveness of order.--If a
petition for review of an action is filed under
subparagraph (C) and the review under that subparagraph
is not completed by the end of the 30-day period
beginning on the date the petition is filed, the action
shall cease to be effective at the end of such period
unless the Secretary determines, in writing, that the
violation providing a basis for the action continues to
exist.
``(6) Retaliation prohibited.--
``(A) In general.--An owner or operator of a
chemical facility of interest or agent thereof may not
discharge an employee or otherwise discriminate against
an employee with respect to the compensation provided
to, or terms, conditions, or privileges of the
employment of, the employee because the employee (or an
individual acting pursuant to a request of the
employee) submitted a report under paragraph (1).
``(B) Exception.--An employee shall not be entitled
to the protections under this section if the employee--
``(i) knowingly and willfully makes any
false, fictitious, or fraudulent statement or
representation; or
``(ii) uses any false writing or document
knowing the writing or document contains any
false, fictitious, or fraudulent statement or
entry.
``(b) Protected Disclosures.--Nothing in this title 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 of an agency, the inspector
general of an agency, or any other employee designated by the
head of an agency to receive disclosures similar to the
disclosures described in paragraphs (1) and (2).
``(c) Publication of Rights.--The Secretary, in partnership with
industry associations and labor organizations, shall make publicly
available both physically and online the rights that an individual who
discloses information, including security-sensitive information,
regarding problems, deficiencies, or vulnerabilities at a covered
chemical facility would have under Federal whistleblower protection
laws or this title.
``(d) Protected Information.--All information contained in a report
made under this subsection (a) shall be protected in accordance with
section 2103.
``SEC. 2106. RELATIONSHIP TO OTHER LAWS.
``(a) Other Federal Laws.--Nothing in this title shall be construed
to supersede, amend, alter, or affect any Federal law that--
``(1) regulates (including by requiring information to be
submitted or made available) the manufacture, distribution in
commerce, use, handling, sale, other treatment, or disposal of
chemical substances or mixtures; or
``(2) authorizes or requires the disclosure of any record
or information obtained from a chemical facility under any law
other than this title.
``(b) States and Political Subdivisions.--This title shall 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 chemical facility security that is more
stringent than a regulation, requirement, or standard of performance
issued under this section, or otherwise impair any right or
jurisdiction of any State with respect to chemical facilities within
that State, unless there is an actual conflict between this section and
the law of that State.
``SEC. 2107. CFATS REGULATIONS.
``(a) General Authority.--The Secretary may, in accordance with
chapter 5 of title 5, United States Code, promulgate regulations or
amend existing CFATS regulations to implement the provisions under this
title.
``(b) Existing CFATS Regulations.--
``(1) In general.--Notwithstanding section 4(b) of the
Protecting and Securing Chemical Facilities from Terrorist
Attacks Act of 2014, each existing CFATS regulation shall
remain in effect unless the Secretary amends, consolidates, or
repeals the regulation.
``(2) Repeal.--Not later than 30 days after the date of
enactment of the Protecting and Securing Chemical Facilities
from Terrorist Attacks Act of 2014, the Secretary shall repeal
any existing CFATS regulation that the Secretary determines is
duplicative of, or conflicts with, this title.
``(c) Authority.--The Secretary shall exclusively rely upon
authority provided under this title in--
``(1) determining compliance with this title;
``(2) identifying chemicals of interest; and
``(3) determining security risk associated with a chemical
facility.
``SEC. 2108. SMALL COVERED CHEMICAL FACILITIES.
``(a) Definition.--In this section, the term `small covered
chemical facility' means a covered chemical facility that--
``(1) has fewer than 100 employees employed at the covered
chemical facility; and
``(2) is owned and operated by a small business concern (as
defined in section 3 of the Small Business Act (15 U.S.C.
632)).
``(b) Assistance to Facilities.--The Secretary may provide guidance
and, as appropriate, tools, methodologies, or computer software, to
assist small covered chemical facilities in developing the physical
security, cybersecurity, recordkeeping, and reporting procedures
required under this title.
``(c) Report.--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 a report on best practices that may
assist small covered chemical facilities in development of physical
security best practices.
``SEC. 2109. OUTREACH TO CHEMICAL FACILITIES OF INTEREST.
``Not later than 90 days after the date of enactment of the
Protecting and Securing Chemical Facilities from Terrorist Attacks Act
of 2014, the Secretary shall establish an outreach implementation plan,
in coordination with the heads of other appropriate Federal and State
agencies, relevant business associations, and public and private labor
organizations, to--
``(1) identify chemical facilities of interest; and
``(2) make available compliance assistance materials and
information on education and training.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of
the Homeland Security Act of 2002 (Public Law 107-196; 116 Stat. 2135)
is amended by adding at the end the following:
``TITLE XXI--CHEMICAL FACILITY ANTI-TERRORISM STANDARDS
``Sec. 2101. Definitions.
``Sec. 2102. Chemical Facility Anti-Terrorism Standards Program.
``Sec. 2103. Protection and sharing of information.-
``Sec. 2104. Civil enforcement.
``Sec. 2105. Whistleblower protections.
``Sec. 2106. Relationship to other laws.
``Sec. 2107. CFATS regulations.
``Sec. 2108. Small covered chemical facilities.
``Sec. 2109. Outreach to chemical facilities of interest.''.
SEC. 3. ASSESSMENT; REPORTS.
(a) Definitions.--In this section--
(1) the term ``Chemical Facility Anti-Terrorism Standards
Program'' means--
(A) the Chemical Facility Anti-Terrorism Standards
program initially authorized under section 550 of the
Department of Homeland Security Appropriations Act,
2007 (Public Law 109-295; 6 U.S.C. 121 note); and
(B) the Chemical Facility Anti-Terrorism Standards
Program subsequently authorized under section 2102(a)
of the Homeland Security Act of 2002, as added by
section 2;
(2) the term ``Department'' means the Department of
Homeland Security; and
(3) the term ``Secretary'' means the Secretary of Homeland
Security.
(b) Third-party Assessment.--Using amounts appropriated to the
Department before the date of enactment of this Act, the Secretary
shall commission a third-party study to assess vulnerabilities of
covered chemical facilities, as defined in section 2101 of the Homeland
Security Act of 2002 (as added by section 2), to acts of terrorism.
(c) Reports.--
(1) Report to congress.--Not later than 18 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 a report on the Chemical Facility Anti-
Terrorism Standards Program that includes--
(A) a certification by the Secretary that the
Secretary has made significant progress in the
identification of all chemical facilities of interest
under section 2102(e)(1) of the Homeland Security Act
of 2002, as added by section 2, including--
(i) a description of the steps taken to
achieve that progress and the metrics used to
measure the progress;
(ii) information on whether facilities that
submitted Top-Screens as a result of the
identification of chemical facilities of
interest were tiered and in what tiers those
facilities were placed; and
(iii) an action plan to better identify
chemical facilities of interest and bring those
facilities into compliance with title XXI of
the Homeland Security Act of 2002, as added by
section 2;
(B) a certification by the Secretary that the
Secretary has developed a risk assessment approach and
corresponding tiering methodology under section
2102(e)(2) of the Homeland Security Act of 2002, as
added by section 2;
(C) an assessment by the Secretary of the
implementation by the Department of the recommendations
made by the Homeland Security Studies and Analysis
Institute as outlined in the Institute's Tiering
Methodology Peer Review (Publication Number: RP12-22-
02); and
(D) a description of best practices that may assist
small covered chemical facilities, as defined in
section 2108(a) of the Homeland Security Act of 2002,
as added by section 2, in the development of physical
security best practices.
(2) Annual gao report.--
(A) In general.--During the 3-year period beginning
on the date of enactment of this Act, the Comptroller
General of the United States shall submit to Congress
an annual report that assesses the implementation of
this Act and the amendments made by this Act.
(B) Initial report.--Not later than 180 days after
the date of enactment of this Act, the Comptroller
General shall submit to Congress the first report under
subparagraph (A).
(C) Second annual report.--Not later than 1 year
after the date of the initial report required under
subparagraph (B), the Comptroller General shall submit
to Congress the second report under subparagraph (A),
which shall include an assessment of the whistleblower
protections provided under section 2105 of the Homeland
Security Act of 2002, as added by section 2, and--
(i) describes the number and type of
problems, deficiencies, and vulnerabilities
with respect to which reports have been
submitted under such section 2105;
(ii) evaluates the efforts of the Secretary
in addressing the problems, deficiencies, and
vulnerabilities described in subsection (a)(1)
of such section 2105; and
(iii) evaluates the efforts of the
Secretary to inform individuals of their
rights, as required under subsection (c) of
such section 2105.
(D) Third annual report.--Not later than 1 year
after the date on which the Comptroller General submits
the second report required under subparagraph (A), the
Comptroller General shall submit to Congress the third
report under subparagraph (A), which shall include an
assessment of--
(i) the expedited approval program
authorized under section 2102(c)(4) of the
Homeland Security Act of 2002, as added by
section 2; and
(ii) the report on the expedited approval
program submitted by the Secretary under
subparagraph (I)(ii) of such section
2102(c)(4).
SEC. 4. EFFECTIVE DATE; CONFORMING REPEAL.
(a) Effective Date.--This Act, and the amendments made by this Act,
shall take effect on the date that is 30 days after the date of
enactment of this Act.
(b) Conforming Repeal.--Section 550 of the Department of Homeland
Security Appropriations Act, 2007 (Public Law 109-295; 120 Stat. 1388),
is repealed as of the effective date of this Act.
SEC. 5. TERMINATION.
The authority provided under title XXI of the Homeland Security Act
of 2002, as added by section 2(a), shall terminate on the date that is
4 years after the effective date of this Act.
Attest:
Secretary.
113th CONGRESS
2d Session
H.R. 4007
_______________________________________________________________________
AMENDMENT