[House Report 111-205]
[From the U.S. Government Publishing Office]


111th Congress                                            Rept. 111-205
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 2

======================================================================



 
              CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2009

                                _______
                                

                October 23, 2009.--Ordered to be printed

                                _______
                                

 Mr. Waxman, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2868]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Energy and Commerce, to whom was referred 
the bill (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, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.

                            C O N T E N T S

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................    22
Background and Need for Legislation..............................    23
Legislative History..............................................    24
Committee Consideration..........................................    24
Committee Votes..................................................    24
Committee Oversight Findings and Recommendations.................    34
New Budget Authority, Entitlement Authority, and Tax Expenditures    34
Statement of General Performance Goals and Objectives............    34
Constitutional Authority Statement...............................    35
Earmarks and Tax and Tariff Benefits.............................    36
Advisory Committee Statement.....................................    36
Applicability of Law to Legislative Branch.......................    36
Federal Mandates Statement.......................................    36
Committee Cost Estimate..........................................    36
Congressional Budget Office Estimate.............................    36
Section-by-Section Analysis of the Legislation...................    40
Explanation of Amendments........................................    54
Changes in Existing Law Made by the Bill, as Reported............    55
Dissenting Views.................................................    88

                               Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

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).
          ``(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, submit, 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 (c); 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 section;
                  ``(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) Participation in Preparation of Security Vulnerability 
Assessments or Site Security Plans.--Any person selected by the owner 
or operator of a covered chemical facility or by a certified or 
recognized bargaining agent of a covered chemical facility to 
participate in the development of the security vulnerability assessment 
or site security plan required under this section for such covered 
chemical facility shall be permitted to participate if the person 
possesses knowledge, experience, training, or education relevant to the 
portion of the security vulnerability assessment or site security plan 
on which the person is participating.
  ``(c) 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.
  ``(d) 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.
  ``(e) 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.
  ``(f) 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 Commandant of the 
                Coast Guard, after consultation with 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) Personnel surety.--
                          ``(i) Exception.--A facility designated as a 
                        covered chemical facility under this title that 
                        has had its facility security plan approved 
                        under section 70103(c) of title 46, United 
                        States Code, shall not be required to update or 
                        amend such plan in order to meet the 
                        requirements of section 2115 of this title.
                          ``(ii) Equivalent access.--An individual 
                        described in section 2115(a)(1)(B) who has been 
                        granted access to restricted areas or critical 
                        assets by the owner or operator of a facility 
                        for which a security plan is required to be 
                        submitted under section 70103(c) of title 46, 
                        United States Code, may be considered by that 
                        owner or operator to have satisfied the 
                        requirement for passing a security background 
                        check otherwise required under section 2115 for 
                        purposes of granting the individual access to 
                        restricted areas or critical assets of a 
                        covered chemical facility that is owned or 
                        operated by the same owner or operator.
                  ``(D) Information sharing and protection.--
                Notwithstanding section 70103(d) of title 46, United 
                States Code, the Commandant of the Coast Guard, after 
                consultation with the Secretary, shall apply the 
                information sharing and protection requirements in 
                section 2110 of this title to a facility described in 
                subparagraph (B).
                  ``(E) 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.
                  ``(F) 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.
  ``(g) Role of Employees.--
          ``(1) Description of role required.--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) Annual 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, as relevant to the role or 
        responsibility of such covered individual--
                  ``(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; and
                  ``(J) include a discussion of appropriate emergency 
                response procedures, including procedures to mitigate 
                the effects of a chemical facility terrorist incident.
          ``(3) Equivalent training.--During any year, with respect to 
        any covered individual with roles or responsibilities under 
        paragraph (1), an owner or operator of a covered chemical 
        facility may satisfy any of the training requirements for such 
        covered individual under subparagraphs (A), (B), (C), (D), (E), 
        or (J) of paragraph (2) through training that such owner or 
        operator certifies, in a manner prescribed by the Secretary, as 
        equivalent.
          ``(4) Worker training grant program.--
                  ``(A) Authority.--The Secretary shall establish a 
                grant program to award grants to or enter into 
                cooperative agreements with eligible entities to 
                provide for the training and education of covered 
                individuals with roles or responsibilities described in 
                paragraph (1) and first responders and emergency 
                response providers that would respond to a chemical 
                facility terrorist incident.
                  ``(B) Administration.--The Secretary shall seek to 
                enter into an agreement with the National Institute for 
                Environmental Health Sciences to make and administer 
                grants or cooperative agreements under this paragraph.
                  ``(C) Use of funds.--The recipient of funds under 
                this paragraph shall use such funds to provide for the 
                training and education of covered individuals with 
                roles or responsibilities described in paragraph (1), 
                first responders, and emergency response providers, 
                including--
                          ``(i) the annual mandatory training specified 
                        in paragraph (2); and
                          ``(ii) other appropriate training to protect 
                        nearby persons, property, critical 
                        infrastructure, or the environment from the 
                        effects of a chemical facility terrorist 
                        incident.
                  ``(D) Eligible entities.--For purposes of this 
                paragraph, an eligible entity is a nonprofit 
                organization with demonstrated experience in 
                implementing and operating successful worker or first 
                responder health and safety or security training 
                programs.
  ``(h) State, Regional, or Local Governmental Entities.--No covered 
chemical facility shall be required under State, local, or tribal law 
to provide a vulnerability assessment or site security plan described 
under this title to any State, regional, local, or tribal government 
entity solely by reason of the requirement under subsection (a) that 
the covered chemical facility submit such an assessment and plan to the 
Secretary.

``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 the site 
                security plan of the facility is intended to prevent;
                  ``(B) the ability of the chemical facility to protect 
                against security threats that are required to be 
                addressed by the site security plan of the facility; 
                and
                  ``(C) any weaknesses in the site security plan of the 
                chemical facility;
          ``(3) conducted so as not to affect the actual security, 
        physical integrity, safety, or regular operations 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.
  ``(d) Chemical Facility Inspectors Authorized.--During the period of 
fiscal years 2011 and 2012, subject to the availability of 
appropriations for such purpose, the Secretary shall increase by not 
fewer than 100 the total number of chemical facility inspectors within 
the Department to ensure compliance with this title.
  ``(e) Confidential Communications.--The Secretary shall offer non-
supervisory employees the opportunity to confidentially communicate 
information relevant to the employer's compliance or non-compliance 
with this title, including compliance or non-compliance with any 
regulation or requirement adopted by the Secretary in furtherance of 
the purposes of this title. An employee representative of each 
certified or recognized bargaining agent at the covered chemical 
facility, if any, or, if none, a non-supervisory employee, shall be 
given the opportunity to accompany the Secretary during a physical 
inspection of such covered chemical facility for the purpose of aiding 
in such inspection, if representatives of the owner or operator of the 
covered chemical facility will also be accompanying the Secretary on 
such inspection.

``SEC. 2105. RECORDS.

  ``(a) Request for Records.--In carrying out this title, the Secretary 
may require 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--
          ``(1) reviewing or analyzing a security vulnerability 
        assessment or site security plan submitted under section 2103; 
        or
          ``(2) assessing the implementation of such a site security 
        plan.
  ``(b) Proper Handling of Records.--In accessing or copying any 
records under subsection (a), the Secretary shall ensure that such 
records are 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, in his or her 
        discretion, 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 may--
                  ``(A) after providing notice to the owner or operator 
                of the covered chemical facility and an opportunity for 
                such owner or operator to appeal the Secretary's 
                determination, 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)--
          ``(1) shall be exempt from disclosure under section 552 of 
        title 5, United States Code; and
          ``(2) shall not be made available pursuant to any State, 
        local, or tribal law requiring disclosure of information or 
        records.
  ``(b) Information Sharing.--
          ``(1) In general.--The Secretary shall prescribe such 
        regulations, and may issue such orders, as necessary to 
        prohibit the unauthorized disclosure of protected information, 
        as described in subsection (g).
          ``(2) Sharing of protected information.--The regulations 
        under paragraph (1) shall provide standards for and facilitate 
        the appropriate sharing of protected information with and 
        between Federal, State, local, and tribal authorities, 
        emergency response providers, law enforcement officials, 
        designated supervisory and nonsupervisory covered chemical 
        facility personnel with security, operational, or fiduciary 
        responsibility for the facility, and designated facility 
        employee representatives, if any. Such standards shall include 
        procedures for the sharing of all portions of a covered 
        chemical facility's vulnerability assessment and site security 
        plan relating to the roles and responsibilities of covered 
        individuals under section 2103(g)(1) with a representative of 
        each certified or recognized bargaining agent representing such 
        covered individuals, if any, or, if none, with at least one 
        supervisory and at least one non-supervisory employee with 
        roles or responsibilities under section 2103(g)(1).
          ``(3) Penalties.--Protected information, as described in 
        subsection (g), shall not be shared except in accordance with 
        the regulations under paragraph (1). Any person who 
        purposefully publishes, divulges, discloses, or makes known 
        protected information in any manner or to any extent not 
        authorized by the standards provided by the regulations under 
        paragraph (1), shall, upon conviction, be imprisoned for not 
        more than one year or fined in accordance with the provisions 
        of chapter 227 of title 18, United States Code, applicable to 
        class A misdemeanors, or both, and, in the case of Federal 
        employees or officeholders, shall be removed from Federal 
        office or employment.
  ``(c) Treatment of Information in Adjudicative Proceedings.--In any 
judicial or administrative proceeding, protected information described 
in subsection (g) shall be treated 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. 1381).
  ``(d) Other Obligations Unaffected.--Except as provided in section 
2103(h), 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, local, or tribal government agency to protect or disclose any 
record or information that the Federal, State, local, or tribal 
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, including any assessment required under 
                section 2111.
                  ``(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 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 required to be provided 
                        to, or documents and records created by, the 
                        Secretary under section subsection (b) or (c) 
                        of section 2102.
                          ``(v) Documents directly related to security 
                        drills and training exercises, security threats 
                        and breaches of security, and maintenance, 
                        calibration, and testing of security equipment.
                  ``(C) Other information, documents, or records 
                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.--
          ``(1) Assessment.--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--
                  ``(A) a description of the methods to reduce the 
                consequences of a terrorist attack implemented and 
                considered for implementation by the covered chemical 
                facility;
                  ``(B) the degree to which each method to reduce the 
                consequences of a terrorist attack, if already 
                implemented, has reduced, or, if implemented, could 
                reduce, the potential extent of death, injury, or 
                serious adverse effects to human health resulting from 
                a release of a substance of concern;
                  ``(C) the technical feasibility, costs, avoided costs 
                (including liabilities), personnel implications, 
                savings, and applicability of implementing each method 
                to reduce the consequences of a terrorist attack; and
                  ``(D) any other information that the owner or 
                operator of the covered chemical facility considered in 
                conducting the assessment.
          ``(2) Feasible.--For the purposes of this section, the term 
        `feasible' means feasible with the use of best technology, 
        techniques, and other means that the Secretary finds, after 
        examination for efficacy under field conditions and not solely 
        under laboratory conditions, are available for use at the 
        covered chemical facility.
  ``(b) Implementation.--
          ``(1) Implementation.--
                  ``(A) In general.--The owner or operator of a covered 
                chemical facility that is assigned to tier 1 or tier 2 
                because of the potential extent and likelihood of 
                death, injury, and serious adverse effects to human 
                health, the environment, critical infrastructure, 
                public health, homeland security, national security, 
                and the national economy from a release of a substance 
                of concern at the covered chemical facility, shall 
                implement methods to reduce the consequences of a 
                terrorist attack on the chemical facility if the 
                Director of the Office of Chemical Facility Security 
                determines, in his or her discretion, using the 
                assessment conducted pursuant to subsection (a), that 
                the implementation of such methods at the facility--
                          ``(i) would significantly reduce the risk of 
                        death, injury, or serious adverse effects to 
                        human health resulting from a chemical facility 
                        terrorist incident but--
                                  ``(I) would not increase the interim 
                                storage of a substance of concern 
                                outside the facility;
                                  ``(II) would not directly result in 
                                the creation of a new covered chemical 
                                facility assigned to tier 1 or tier 2 
                                because of the potential extent and 
                                likelihood of death, injury, and 
                                serious adverse effects to human 
                                health, the environment, critical 
                                infrastructure, public health, homeland 
                                security, national security, and the 
                                national economy from a release of a 
                                substance of concern at the covered 
                                chemical facility; and
                                  ``(III) would not result in the 
                                reassignment of an existing covered 
                                chemical facility from tier 3 or tier 4 
                                to tier 1 or tier 2 because of the 
                                potential extent and likelihood of 
                                death, injury, and serious adverse 
                                effects to human health, the 
                                environment, critical infrastructure, 
                                public health, homeland security, 
                                national security, and the national 
                                economy from a release of a substance 
                                of concern at the covered chemical 
                                facility;
                          ``(ii) can feasibly be incorporated into the 
                        operation of the covered chemical facility; and
                          ``(iii) 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.
                  ``(B) Written determination.--A determination by the 
                Director of the Office of Chemical Facility Security 
                pursuant to subparagraph (A) shall be made in writing 
                and include the basis and reasons for such 
                determination.
                  ``(C) Maritime facilities.--With respect to a covered 
                chemical facility for which a security plan is required 
                under section 70103(c) of title 46, United States Code, 
                a written determination pursuant to subparagraph (A) 
                shall be made only after consultation with the Captain 
                of the Port for the area in which the covered chemical 
                facility is located.
          ``(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 
                Director's determination under paragraph (1) shall, 
                within 120 days of receipt of the Director's 
                determination, provide to the Secretary a written 
                explanation that includes the reasons therefor. Such 
                written explanation shall specify whether the owner or 
                operator's inability to comply arises under clause (ii) 
                or (iii) of paragraph (1)(A), or both.
                  ``(B) Review.--Not later than 120 days of 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, as well as experts in the subjects of 
                environmental health and safety, security, chemistry, 
                design and engineering, process controls and 
                implementation, maintenance, production and operations, 
                chemical process safety, and occupational health, as 
                appropriate, shall provide to the owner or operator a 
                written determination, in his or her discretion, of 
                whether implementation shall be required pursuant to 
                paragraph (1). If the Secretary determines that 
                implementation is required, the Secretary shall issue 
                an order that establishes the basis for such 
                determination, including the findings of the relevant 
                experts, the specific methods selected for 
                implementation, and a schedule for implementation of 
                the methods at the facility.
  ``(c) Sectoral Impacts.--
          ``(1) Guidance for farm supplies merchant wholesalers.--The 
        Secretary shall provide guidance and, as appropriate, tools, 
        methodologies or computer software, to assist farm supplies 
        merchant wholesalers in complying with the requirements of this 
        section.   The Secretary may award grants to farm supplies 
        merchant wholesalers to assist with compliance with subsection 
        (a), and in awarding such grants, shall give priority to farm 
        supplies merchant wholesalers that have the greatest need for 
        such grants.
          ``(2) Assessment of impacts.--Not later than 6 months after 
        the date of enactment of this title, the Secretary shall 
        transmit an assessment of the potential impacts of compliance 
        with provisions of this section regarding the assessment and, 
        as appropriate, implementation, of methods to reduce the 
        consequences of a terrorist attack by manufacturers, retailers, 
        aerial commercial applicators, and distributors of pesticide 
        and fertilizer to the Committee on Energy and Commerce of the 
        House of Representatives, the Committee on Homeland Security of 
        the House of Representatives and the Committee on Homeland 
        Security and Governmental Affairs of the Senate.   Such 
        assessment shall be conducted by the Secretary in consultation 
        with other appropriate Federal agencies and shall include the 
        following:
                  ``(A) Data on the scope of facilities covered by this 
                title, including the number and type of manufacturers, 
                retailers, aerial commercial applicators and 
                distributors of pesticide and fertilizer required to 
                assess methods to reduce the consequences of a 
                terrorist attack under subsection (a) and the number 
                and type of manufacturers, retailers, aerial commercial 
                applicators and distributors of pesticide and 
                fertilizer assigned to tier 1 or tier 2 by the 
                Secretary   because of  the potential extent and  
                likelihood of death, injury, and serious adverse 
                effects to human health, the environment, critical 
                infrastructure, public health, homeland security, 
                national security, and the national economy from the 
                release of a substance of concern at the facility.
                  ``(B) A survey of known methods, processes or 
                practices, other than elimination of or cessation of 
                manufacture of the pesticide or fertilizer, that 
                manufacturers, retailers, aerial commercial 
                applicators, and distributors of pesticide and 
                fertilizer could use to reduce the consequences of a 
                terrorist attack, including an assessment of the costs 
                and technical feasibility of each such method, process, 
                or practice.
                  ``(C) An analysis of how the  assessment of methods 
                to reduce the consequences of a  terrorist attack under 
                subsection (a) by  manufacturers, retailers, aerial 
                commercial applicators, and distributors of pesticide 
                and fertilizer,  and,  as appropriate, the  
                implementation of methods to reduce the consequences of 
                a  terrorist attack by  such manufacturers, retailers, 
                aerial commercial applicators, and distributors of 
                pesticide and fertilizer  subject to  subsection (b),  
                are likely to impact other sectors engaged in commerce.
                  ``(D) Recommendations for how to mitigate any adverse 
                impacts identified pursuant to subparagraph (C).
          ``(3) Farm supplies merchant wholesaler.--In this subsection, 
        the term `farm supplies merchant wholesaler' means a covered 
        chemical facility that is primarily engaged in the merchant 
        wholesale distribution of farm supplies, such as animal feeds, 
        fertilizers, agricultural chemicals, pesticides, plant seeds, 
        and plant bulbs.
  ``(d) Provision of Information on Alternative Approaches.--
          ``(1) In general.--The Secretary shall make available 
        information 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 that the Secretary 
                determines are 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.
  ``(e) 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;
          ``(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; or
          ``(4) any public water system subject to the Safe Drinking 
        Water Act (42 U.S.C. 300f et seq.).

``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.), the Toxic Substances Control Act 
(15 U.S.C. 2601 et seq.), and the Fair Credit Reporting Act (15 U.S.C. 
1681 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.
  ``(c) Access.--Nothing in this title shall abridge or deny access to 
a chemical facility site to any person where required or permitted 
under any other law or regulation.

``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 53 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--
                          ``(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, including any designated 
                        employee representative, 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 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) Misrepresentation of Adverse Employment Decisions.--The 
regulations required by subsection (a)(1) shall set forth that it shall 
be a misrepresentation under subsection (a)(2)(E) to attribute an 
adverse employment decision, including removal or suspension of the 
employee, to such regulations unless the owner or operator finds, after 
opportunity for appropriate redress under the processes provided under 
subsection (c)(1) and (c)(2), that the person subject to such adverse 
employment decision--
          ``(1) has been convicted of, has been found not guilty of by 
        reason of insanity, 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 the owner or operator to provide 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 process established for employees subject to 
        consumer reports under the Fair Credit Reporting Act (15 U.S.C. 
        1681 et seq.), as in force on the date of enactment of this 
        title;
          ``(2) provide 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 a 
        determination by the Secretary under subsection (b)(4), that is 
        consistent with the appeals process established under section 
        70105(c) of title 46, United States Code, including all rights 
        to hearings before an administrative law judge, scope of 
        review, and a review of an unclassified summary of classified 
        evidence equivalent to the summary provided in part 1515 of 
        title 49, Code of Federal Regulations;
          ``(3) provide 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 a 
        violation of subsection (a)(2)(E), which shall not preclude the 
        exercise of any other rights available under collective 
        bargaining agreements or applicable laws;
          ``(4) establish a reconsideration process described in 
        subsection (d) for a person subject to an adverse employment 
        decision that was attributed by an owner or operator to the 
        regulations required by subsection (a)(1);
          ``(5) have the authority to order an appropriate remedy, 
        including reinstatement of the person subject to a security 
        background check under subsection (a)(1), if the Secretary 
        determines that the adverse employment decision was made in 
        violation of the regulations required under subsection (a)(1) 
        or as a result of an erroneous determination by the Secretary 
        under subsection (b)(4);
          ``(6) ensure that the redress processes required under 
        paragraphs (1), (2), or (3) afford to the person a full 
        disclosure of any public-record event covered by subsection (b) 
        that provides the basis for an adverse employment decision; and
          ``(7) ensure that the person subject to a security background 
        check under subsection (a)(1) receives the person's full wages 
        and benefits until all redress processes under this subsection 
        are exhausted.
  ``(d) Reconsideration Process.--
          ``(1) In general.--The reconsideration process required under 
        subsection (c)(4) shall--
                  ``(A) require the Secretary to determine, within 30 
                days after receiving a petition submitted by a person 
                subject to an adverse employment decision that was 
                attributed by an owner or operator to the regulations 
                required by subsection (a)(1), whether such person 
                poses a security risk to the covered chemical facility; 
                and
                  ``(B) include procedures consistent with section 
                70105(c) of title 46, United States Code, including all 
                rights to hearings before an administrative law judge, 
                scope of review, and a review of an unclassified 
                summary of classified evidence equivalent to the 
                summary provided in part 1515 of title 49, Code of 
                Federal Regulations.
          ``(2) Determination by the secretary.--In making a 
        determination described under paragraph (1)(A), the Secretary 
        shall--
                  ``(A) give consideration to the circumstance of any 
                disqualifying act or offense, restitution made by the 
                person, Federal and State mitigation remedies, and 
                other factors from which it may be concluded that the 
                person does not pose a security risk to the covered 
                chemical facility; and
                  ``(B) provide his or her determination as to whether 
                such person poses a security risk to the covered 
                chemical facility to the petitioner and to the owner or 
                operator of the covered chemical facility.
          ``(3) Owner or operator reconsideration.--If the Secretary 
        determines pursuant to paragraph (1)(A) that the person does 
        not pose a security risk to the covered chemical facility, it 
        shall thereafter constitute a prohibited misrepresentation for 
        the owner or operator of the covered chemical facility to 
        continue to attribute the adverse employment decision to the 
        regulations under subsection (a)(1).
  ``(e) 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.
  ``(f) Savings Clause.--
          ``(1) 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.
          ``(2) Existing rights.--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.
  ``(g) 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).
  ``(h) 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.
  ``(i) Department-Conducted Security Background Check.--The 
regulations under subsection (a)(1) shall set forth a process by which 
the Secretary, on an ongoing basis, shall determine whether alternate 
security background checks conducted by the Department are sufficient 
to meet the requirements of this section such that no additional 
security background check under this section is required for an 
individual for whom such a qualifying alternate security background 
check was conducted. The Secretary may require a facility to which the 
individual will have unescorted access to sensitive or restricted areas 
to submit identifying information about the individual and the 
alternate security background check conducted for that individual to 
the Secretary in order to enable the Secretary to verify the validity 
of the alternate security background check. Such regulations shall 
provide that no security background check under this section is 
required for an individual holding a transportation security card 
issued under section 70105 of title 46, United States Code.

``SEC. 2116. CITIZEN ENFORCEMENT.

  ``(a) In General.--Except as provided in subsection (c), any person 
may commence a civil action on such person's own behalf--
          ``(1) against any governmental entity (including the United 
        States, any other governmental instrumentality or agency, and 
        any federally owned-contractor operated facility, to the extent 
        permitted by the eleventh amendment to the Constitution) 
        alleged to be in violation of any order that has become 
        effective pursuant to this title; or
          ``(2) against the Secretary, for an alleged failure 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 order referred to in subsection 
        (a)(1), to order such governmental entity to take such action 
        as may be necessary, or both, or, in an action commenced under 
        subsection (a)(2), to order the Secretary to perform the non-
        discretionary act or duty, and to order any civil penalties, as 
        appropriate, under section 2107.
  ``(c) Actions Prohibited.--No action may be commenced under 
subsection (a) prior to 60 days after the date on which the person 
commencing the action has given notice of the alleged violation to--
          ``(1) the Secretary; and
          ``(2) in the case of an action under subsection (a)(1), any 
        governmental entity alleged to be in violation of an 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. CITIZEN PETITIONS.

  ``(a) In General.--The Secretary shall issue regulations to establish 
a petition process for petitions described in subsection (b), 
including--
          ``(1) the format for petitions;
          ``(2) the procedures for investigation of claims;
          ``(3) the procedures for response to petitions, including 
        timelines; and
          ``(4) the procedures for de novo review of responses to 
        petitions by the Office of the Inspector General for the 
        Department of Homeland Security.
  ``(b) Petitions.--The regulations issued pursuant to subsection (a) 
shall allow any person to file a petition with the Secretary--
          ``(1) identifying any person (including the United States and 
        any other governmental instrumentality or agency, to the extent 
        permitted by the eleventh amendment to the Constitution) 
        alleged to be in violation of any standard, regulation, 
        condition, requirement, prohibition, plan, or order that has 
        become effective under this title; and
          ``(2) describing the alleged violation of any standard, 
        regulation, condition, requirement, prohibition, plan, or order 
        that has become effective under this title by that person.
  ``(c) Requirements.--Upon issuance of regulations under subsection 
(a), the Secretary shall--
          ``(1) accept all petitions described under subsection (b) 
        that meet the requirements of the regulations promulgated under 
        subsection (a);
          ``(2) investigate all allegations contained in accepted 
        petitions;
          ``(3) determine whether enforcement action will be taken 
        concerning the alleged violation or violations;
          ``(4) respond to all accepted petitions promptly and in 
        writing;
          ``(5) include in all responses to petitions a brief and 
        concise statement, to the extent permitted under section 2110, 
        of the allegations, the steps taken to investigate, the 
        determination made, and the reasons for such determination;
          ``(6) maintain an internal record including all protected 
        information related to the determination; and
          ``(7) provide an opportunity for review by the Department of 
        Homeland Security Inspector General on the full record, 
        including protected information, for all determinations made 
        under such regulations.
  ``(d) Final Agency Action.--
          ``(1) Ongoing enforcement proceedings.--Any determination by 
        the Secretary to pursue enforcement action in response to a 
        petition under this section shall not constitute final agency 
        action because of ongoing enforcement proceedings.
          ``(2) Determination not to pursue enforcement.--Any 
        determination by the Secretary not to pursue enforcement action 
        in response to a petition under this section shall constitute 
        final agency action.

``SEC. 2118. 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 
                and a description of such implemented methods;
                  ``(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;
                  ``(J) the number of terrorist watchlist checks 
                conducted by the Secretary in order to comply with the 
                requirements of this title, the number of appeals 
                conducted by the Secretary pursuant to the processes 
                described under paragraphs (2), (3) and (4) of section 
                2115(c), aggregate information regarding the time taken 
                for such appeals, aggregate information regarding the 
                manner in which such appeals were resolved, and, based 
                on information provided to the Secretary annually by 
                each owner or operator of a covered chemical facility, 
                the number of persons subjected to adverse employment 
                decisions that were attributed by the owner or operator 
                to the regulations required by section 2115; and
                  ``(K) 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. 2119. 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, of 
        which up to $3,000,000 shall be made available for grants 
        authorized under section 2111(c)(1);
          ``(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, of which up to 
        $3,000,000 shall be made available for grants authorized under 
        section 2111(c)(1); 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, of which up to 
        $3,000,000 shall be made available for grants authorized under 
        section 2111(c)(1).''.
  (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 enforcement.
``Sec. 2117. Citizen petitions.
``Sec. 2118. Annual report to Congress.
``Sec. 2119. 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 the date of the enactment of this Act.
  (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.

                          Purpose and Summary

    In the fall of 2006, Congress authorized the Department of 
Homeland Security (Department) to establish risk-based security 
performance standards for chemical facilities that use or store 
chemicals that make attractive terrorist targets. The 
Department promulgated interim final regulations on April 9, 
2007, resulting in the Chemical Facility Anti-Terrorism 
Standards (CFATS). The legislative authority for CFATS was 
scheduled to sunset on October 4, 2009. The Chemical Facility 
Anti-Terrorism Act of 2009 (H.R. 2868) makes permanent the 
authority of the Secretary of Homeland Security to regulate 
security at chemical plants.
    The bill maintains the current structure of the existing 
CFATS program, requiring covered chemical facilities to 
identify security vulnerabilities and develop site security 
plans that apply layered security measures to address those 
vulnerabilities. The bill also makes changes to the CFATS 
program that reduce the likelihood and consequences of a 
terrorist attack by requiring covered chemical facilities to 
assess the feasibility of, and in some circumstances adopt, 
inherently safer chemicals and processes. The bill also adds 
citizen enforcement, requires port facilities to meet the same 
security standards as chemical facilities, protects 
whistleblowers, and ensures worker participation in chemical 
security programs.

                  Background and Need for Legislation

    In 1984, a chemical facility in Bhopal, India accidentally 
released 40 tons of methyl isocyanate, killing approximately 
3,000 people and injuring thousands more. The tragic event in 
Bhopal was an accident; had it been a deliberate terrorist 
attack the consequences could have been much worse.
    Chemical facilities are an integral part of the United 
States economy, generating $550 billion in annual revenues. 
These facilities, often located in densely populated areas, 
hold many chemicals that can cause serious harm to humans and 
the environment if used maliciously or without sufficient care. 
These factors make U.S. chemical facilities attractive 
terrorist targets. As a result, the chemical sector is among 
the 17 critical infrastructure and key resources (CI/KR) 
sectors under the National Infrastructure Protection Plan, 
pursuant to Homeland Security Presidential Directive-7 (HSPD-
7).
    In 2007, pursuant to section 550 of the Homeland Security 
Appropriations Act of 2007 (P.L. 109-295), the Department of 
Homeland Security was provided with interim authority to 
regulate the nation's chemical facilities. Pursuant to that 
authority, the Department issued the Chemical Facility Anti-
Terrorism Standards (CFATS) in June 2007. These standards 
require each chemical facility to report the amounts and types 
of chemicals on site so that the Department can determine 
whether that facility will be further regulated by CFATS rules. 
The Department issued the final CFATS regulations on April 9, 
2007. Based on these regulations, the Department has begun 
placing regulated facilities into one of four tiers. The 
facilities placed in the highest-risk tier will be subject to 
the most stringent security requirements.
    Enactment of H.R. 2868 is necessary to continue the 
implementation of CFATS regulations of the nation's chemical 
facilities, which is essential for the protection of U.S. 
citizens against terrorist attacks. Specifically, H.R. 2868 
establishes many of the current CFATS regulations in law and 
requires each CFATS-regulated chemical facility to conduct a 
security vulnerability assessment and subsequently implement a 
site security plan. It also provides the Department with the 
authority and resources to inspect these facilities and ensure 
compliance. In addition to making the CFATS authority 
permanent, H.R. 2868 includes some new security modifications 
such as the regulation of port facilities and wastewater 
facilities under CFATS; required assessment of, and in some 
circumstances a requirement to implement, methods to reduce 
consequences of a terrorist attack; whistleblower protections; 
and new avenues for citizen enforcement. The current CFATS 
regulations will be improved, not disrupted, by this 
legislation.

                          Legislative History

    H.R. 2868 was introduced on June 15, 2009, by Committee on 
Homeland Security Chairman Thompson, Committee on Energy and 
Commerce Chairman Waxman, Subcommittee on Energy and 
Environment Chairman Markey, and Reps. Jackson-Lee (D-TX) and 
Clarke (D-NY). The bill was referred to the Committee on 
Homeland Security, and in addition to the Committee on Energy 
and Commerce. The Committee on Energy and Commerce referred the 
bill to its Subcommittee on Energy and Environment on June 16, 
2009.
    The Subcommittee on Energy and Environment held a 
legislative hearing on October 1, 2009, on two bills: H.R. 
2868, the Chemical Facility Anti-Terrorism Act of 2009, and 
H.R. 3258, the Drinking Water System Security Act of 2009. The 
Subcommittee received testimony from two panels of witnesses. 
The witnesses on the first panel were the Hon. Peter Silva, 
Assistant Administrator, Office of Water, U.S. Environmental 
Protection Agency, and the Hon. Rand Beers, Under Secretary, 
National Protection and Programs Directorate, U.S. Department 
of Homeland Security. Panel 2 was comprised of four witnesses: 
Mr. Brian Ramaley, Director, Newport News Waterworks (Virginia) 
and President of the Board of Directors of the Association of 
Metropolitan Water Agencies; Mr. Marty Durbin, Vice President, 
Federal Affairs, American Chemical Council; Dr. Darius Sivin, 
Legislative Representative of the CWA-UAW Legislative Alliance; 
and Mr. Stephen Poorman, International EHS Manager, Fujifilm 
Imaging Colorants Chair, Safety and Security Committee, Society 
of Chemical Manufacturers and Affiliates.

                        Committee Consideration

    The Subcommittee on Energy and Environment met in open 
markup session on Wednesday, October 14, 2009, to consider H.R. 
2868. The Subcommittee agreed to favorably forward H.R. 2868, 
amended, to the full Committee by a roll call vote of 18 yeas 
to 10 nays.
    The Committee on Energy and Commerce met in open markup 
session on Wednesday, October 21, 2009, to consider H.R. 2898 
as approved by the Subcommittee on Energy and Environment. 
Subsequently, the full Committee ordered H.R. 2868 favorably 
reported to the House, amended, by a roll call vote of 29 yeas 
to 18 nays.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto. The Committee agreed to a motion by Mr. Markey to 
order H.R. 2868 favorably reported to the House, amended, by a 
recorded vote of 29 yeas and 18 nays. The following are the 
recorded votes taken during Committee consideration of H.R. 
2868, including the names of those Members voting for and 
against:


            Committee Oversight Findings and Recommendations

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the findings and 
recommendations of the Committee are reflected in the 
descriptive portions of this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    Regarding compliance with clause 3(c)(2) of rule XIII of 
the Rules of the House of Representatives, the Committee adopts 
as its own the estimate of budget authority and revenues 
regarding H.R. 2868 prepared by the Director of the 
Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974. The Committee finds that H.R. 
2868 would result in no new or increased entitlement authority 
or tax expenditures.

         Statement of General Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, H.R. 2868 contains the following 
general performance goals, and objectives, including outcome 
related goals and objectives authorized.
    The purpose of this legislation is to amend the Homeland 
Security Act of 2002 to modify and make permanent the authority 
of the Secretary of Homeland Security (Secretary) to enhance 
security and protect chemical facilities against acts of 
terrorism, and for other purposes, including:
           Designating certain chemical substances as 
        substances of concern, establishing a threshold 
        quantity for each substance of concern, and requiring 
        reporting and other requirements;
           Assigning each covered chemical facility to 
        one of four or more risk-based tiers established by the 
        Secretary;
           Providing for periodic review by the 
        Secretary of the criteria under which covered chemical 
        facilities are assigned to risk-based tiers or by which 
        chemical facilities are designated as covered chemical 
        facilities;
           Establishing requirements for covered 
        chemical facilities including security vulnerability 
        assessments and site security plans;
           Conducting chemical facility site 
        inspections to verify compliance;
           Ensuring timely sharing of threat-related 
        information to covered chemical facilities and 
        appropriate state, local, and tribal officials and 
        appropriate covered chemical facility officials;
           Enforcing the regulations through orders or 
        administrative or civil penalties;
           Providing whistleblower protections for 
        covered individuals and Departmental personnel;
           Allowing state, local, or tribal governments 
        to establish more stringent chemical facility security 
        requirements;
           Ensuring that specific security-related 
        information is protected from public disclosure, while 
        ensuring that such information can be shared with 
        appropriate persons;
           Requiring all covered chemical facilities to 
        conduct an assessment of the feasibility of methods to 
        reduce the consequences of a terrorist attack, and 
        allowing the Secretary to require implementation of 
        such methods for certain chemical facilities in the two 
        highest risk-based tiers;
           Making funds available to help defray the 
        cost of implementing methods to reduce the consequences 
        of a terrorist attack to covered chemical facilities 
        that voluntarily choose to implement such methods or 
        are required by the Secretary to do so;
           Exempting chemical facilities owned and 
        operated by the Department of Defense, transportation 
        modes currently regulated by Department of 
        Transportation Hazardous Materials regulations, and 
        those portions of nuclear facilities that are regulated 
        by the Nuclear Regulatory Commission for security;
           Ensuring that nothing in this title would 
        affect or modify any obligation of a person or facility 
        under any other federal law;
           Establishing an Office of Chemical Facility 
        Security, to be headed by a qualified Director, to 
        administer the regulations required by this title;
           Requiring security background checks for 
        covered individuals with unescorted access to critical 
        assets, providing adequate redress processes for 
        covered individuals subject to adverse employment 
        decisions as a result of the background check, and 
        prohibiting a covered chemical facility from 
        unreasonably misrepresenting to an employee or labor 
        arbiter the scope, application, or meaning of any 
        rules, regulations, directives, or guidance issued by 
        the Secretary related to security background check 
        requirements;
           Providing citizens with the right to 
        commence civil actions against the Secretary or federal 
        facilities for failure to comply with the requirements 
        of this title and providing citizens with a petition 
        process by which they can inform the Secretary of 
        alleged violations at specific facilities;
           Submitting an annual report to Congress on 
        progress in achieving compliance with title XXI of the 
        Homeland Security Act of 2002, as added by section 3 of 
        this legislation, not later than one year after the 
        date of enactment thereof; and
           Authorizing certain funding to carry out the 
        requirements of this title: $325 million for fiscal 
        year 2011, of which $100 million is available for 
        funding of methods to reduce consequences of a 
        terrorist attack; $300 million for fiscal year 2012, of 
        which $75 million is available for funding of methods 
        to reduce consequences of a terrorist attack; and $275 
        million for fiscal year 2013, of which $100 million is 
        available for funding of methods to reduce consequences 
        of a terrorist attack.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
constitutional authority for H.R. 2868 is provided in Article 
I, section 8, clauses 1, 3, and 18.

                  Earmarks and Tax and Tariff Benefits

    H.R. 2868 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the Rules of the House of 
Representatives.

                      Advisory Committee Statement

    No advisory committees were created by H.R. 2868 within the 
meaning of section 5 U.S.C. App., 5(b) of the Federal Advisory 
Committee Act.

             Applicability of Law to the Legislative Branch

    The Committee finds that H.R. 2868 does not relate to the 
terms and conditions of employment or access to public services 
or accommodations within the meaning of section 102(b)(3) of 
the Congressional Accountability Act of 1985.

                       Federal Mandates Statement

    The Committee adopts as its own the estimates of federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                        Committee Cost Estimate

    Pursuant to clause 3(d) of rule XIII of the Rules of the 
House of Representatives, the Committee adopts as its own the 
cost estimate on H.R. 2868 prepared by the Director of the 
Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act.

                  Congressional Budget Office Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate on 
H.R. 2868 provided by the Congressional Budget Office pursuant 
to section 402 of the Congressional Budget Act of 1974:

                                                  October 23, 2009.
Hon. Henry A. Waxman,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2868, the Chemical 
Facility Anti-Terrorism Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 2868--Chemical Facility Anti-Terrorism Act of 2009

    Summary: H.R. 2868 would authorize the appropriation of 
$900 million over the 2011-2013 period for the Department of 
Homeland Security (DHS) to regulate the security of facilities 
across the United States where certain types of chemicals are 
present. The bill would authorize a chemical security office 
within DHS to carry out the provisions of this legislation, 
including conducting audits and inspections of the nation's 
chemical facilities. In addition, because the bill's 
requirements would be permanent, CBO estimates that DHS would 
need funding of $283 million for fiscal year 2014 to continue 
to carry out those activities.
    Assuming appropriation of the necessary amounts, CBO 
estimates that implementing H.R. 2868 would cost about $1.1 
billion over the 2011-2014 period. In addition, enacting the 
bill could affect direct spending and revenues, but we estimate 
that any such effects would not be significant.
    H.R. 2868 would extend intergovernmental and private-sector 
mandates, as defined in the Unfunded Mandates Reform Act 
(UMRA), and impose new mandates on employers and on owners and 
operators of public and private facilities where certain 
chemicals are present. The bill also would preempt state and 
local laws. Because the cost of some of the mandates would 
depend on future regulatory actions, CBO cannot determine 
whether the aggregate costs of complying with the mandates 
would exceed the annual thresholds established in UMRA for 
intergovernmental or private-sector mandates ($69 million and 
$139 million, respectively, in 2009, adjusted annually for 
inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 2868 is shown in the following table. 
The costs of this legislation fall within budget function 750 
(administration of justice).

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2010     2011     2012     2013     2014   2010-2014
----------------------------------------------------------------------------------------------------------------
                                 CHANGES IN SPENDING SUBJECT TO APPROPRIATION\1\
Estimated Authorization Level\2\........................        0      325      300      275      283     1,183
Estimated Outlays.......................................        0      260      305      280      282    1,127
----------------------------------------------------------------------------------------------------------------
\1\Enacting H.R. 2868 could affect direct spending and revenues, but CBO estimates that any such effect would
  not be significant in any year.
\2\The authorization levels for 2011 through 2013 are specified by H.R. 2868; CBO estimated the 2014 level.

    Basis of estimate: CBO estimates that implementing H.R. 
2868 would cost about $1.1 billion over the 2011-2014 period, 
assuming appropriation of the necessary funds. Enacting the 
bill could affect direct spending and revenues, but we estimate 
that any effects would be insignificant.

Spending subject to appropriation

    For this estimate, CBO assumes that the necessary amounts 
will be appropriated for each fiscal year and that spending 
will follow the historical spending patterns for those or 
similar activities.
    H.R. 2868 would authorize the appropriation of $325 million 
for 2011, $300 million for 2012, and $275 million for 2013 for 
DHS to regulate the security of chemical facilities in the 
United States. In addition, because the bill's provisions would 
be permanent, CBO estimates that implementing the bill would 
require funding of $283 million in 2014 for DHS to continue to 
carry out the bill's activities. We estimated the 2014 level by 
adjusting the 2013 level for anticipated inflation.

Direct spending and revenues

    Enacting H.R. 2868 could affect direct spending and 
revenues because the legislation would establish criminal 
penalties against individuals who disclose certain restricted 
information and civil and administrative penalties against 
owners and operators of chemical facilities that fail to comply 
with the bill's requirements. Criminal fines are deposited into 
the Crime Victims Fund and later spent. Civil and 
administrative fines are recorded as revenues and deposited in 
the Treasury. CBO expects that any additional revenues and 
direct spending would not be significant because of the small 
number of cases likely to be affected.
    Intergovernmental and private-sector impact: H.R. 2868 
would extend intergovernmental and private-sector mandates, as 
defined in UMRA, and impose new mandates on employers and on 
owners and operators of public and private facilities where 
certain chemicals are present. The bill also would preempt 
state and local laws. Because the cost of some of the mandates 
would depend on future regulatory actions, CBO cannot determine 
whether the aggregate costs of complying with the mandates 
would exceed the annual thresholds established in UMRA for 
intergovernmental or private-sector mandates ($69 million and 
$139 million, respectively, in 2009, adjusted annually for 
inflation).

Extension of mandates on chemical facilities

    The bill would extend and make permanent mandates contained 
in section 550 of Public Law 109-295, the Chemical Facility 
Anti-Terrorism Standards (CFATS), that are set to expire under 
current law. Those mandates require owners and operators of 
public and private facilities where certain chemicals are 
present to assess the vulnerability of their facilities to a 
terrorist incident and to prepare and implement security plans. 
The bill also would extend mandates that require owners and 
operators of such facilities to maintain records, periodically 
submit reviews of the adequacy of the vulnerability assessments 
or security plans, and allow DHS access to their property for 
security inspections and verifications. In addition, owners and 
operators would have to continue to conduct background checks 
on employees with access to restricted areas and provide 
training to employees. Information from DHS and industry 
sources indicates that those facilities are currently in 
compliance with CFATS regulations, and CBO estimates that the 
cost of continuing to comply with those regulations would be 
small relative to the annual thresholds established in UMRA.

Expansion of mandates to wastewater facilities

    The bill would require wastewater facilities, entities that 
are currently exempt from the CFATS regulations, to comply with 
those requirements. According to government and industry 
representatives, many of the facilities potentially affected by 
the bill's provisions are currently engaged in activities 
similar to those that would be required under H.R. 2868. Such 
facilities are acting either in response to the terrorist 
attacks of September 11, 2001, as part of meeting voluntary 
industry standards, or other federal regulations.
    The bill also would require public and private wastewater 
facilities to complete an initial assessment of their chemical 
holdings. CBO has no basis for estimating how many public water 
facilities currently use the chemicals affected by those 
requirements or the number of those facilities that would be 
required to complete vulnerability assessments and security 
plans. Therefore, CBO cannot determine whether the costs to 
public entities of complying with the mandates would exceed the 
intergovernmental threshold established in UMRA. Because there 
are few private water facilities and they tend to be small, CBO 
expects that the compliance cost for those entities would be 
small relative to UMRA's annual threshold for private-sector 
mandates.

New Mandates on Chemical Facilities

    Mandates on High-Risk Facilities. The bill would require 
owners and operators of public and private high-risk 
facilities, as determined by the Secretary of DHS, to conduct a 
specific assessment of plans and procedures to reduce the 
consequences of a terrorist attack. If the Secretary determines 
that specific methods are necessary for a facility to reduce 
the consequences of a terrorist attack, owners or operators 
would be required to implement such methods. The bill also 
would require DHS to make funds available to help defray some 
of the cost of implementing those methods. Because the 
facilities that would be affected and the types of methods to 
be required depend on future regulatory actions, CBO cannot 
estimate the cost of this mandate.
    The bill also would impose a new mandate on the owners and 
operators of those facilities by requiring them to allow the 
Secretary to conduct unannounced inspections. Based on 
information from industry sources, CBO expects that the cost to 
comply with this mandate would be minimal.
    Whistleblower Protections. H.R. 2868 would prohibit an 
owner or operator of a chemical facility or other employer from 
discharging or otherwise discriminating against an employee 
with respect to compensation, terms, conditions, or privileges 
of employment because the employee reported an alleged 
violation of security practices.
    The prohibition also would apply if the employee engages in 
other activities, including testifying or providing relevant 
information in a governmental proceeding. Based on information 
from industry sources, CBO estimates that public and private 
entities would incur minimal costs, if any, to comply with such 
protections for their employees.
    Other Impacts. The bill would authorize $100 million for 
fiscal year 2011, $75 million for fiscal year 2012, and $50 
million for fiscal year 2013 that could be used to help 
chemical facilities comply with the mandate to reduce the 
consequences of a terrorist attack.

Other intergovernmental mandates

    The bill would exempt some security plans and documents 
from state and local laws that provide public access to 
information and preempt any state or local regulation that 
would conflict with the security activities authorized by the 
bill. CBO estimates that the costs, if any, of those 
preemptions would be small.
    Previous CBO Estimate: On July 9, 2009, CBO transmitted a 
cost estimate for H.R. 2868 as ordered reported by the House 
Committee on Homeland Security on June 23, 2009. The two 
versions of the bill are similar, and the cost estimates are 
nearly identical.
    Estimate prepared by: Federal costs: Mark Grabowicz; Impact 
on state, local, and tribal governments: Melissa Merrell; 
Impact on the private sector: Paige Piper/Bach
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

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

Section 2. Findings and purpose

    Congress finds that the nation's chemical facilities 
represent a terrorist target and must be protected. The 
Secretary of Homeland Security (Secretary) currently has 
interim authority to regulate chemical facilities under the 
Chemical Facility Anti-Terrorism Standards (CFATS) issued 
pursuant to section 550 of the Department of Homeland Security 
Appropriations Act, 2007 (P.L. 109-295). The purpose of this 
Act is to modify and give permanent status to CFATS.

Section 3. Extension, modification, and recodification of the authority 
        of the Secretary of Homeland Security to regulate security 
        practices at chemical facilities

    Section 3 paragraph (a) adds ``Title XXI--Regulation of 
Security Practices at Chemical Facilities'' to the Homeland 
Security Act of 2002. Title XXI includes the following 
provisions:

Section 2101. Definitions

    This section defines numerous terms that appear in the text 
of the legislation, including the following terms:
    The Committee intends for the term ``substance of concern'' 
to be equivalent to the term ``chemical of interest'' as 
defined and used under the CFATS regulations issued on April 9, 
2007, pursuant to section 550 of Public Law 109-295.
    The Committee does not intend the term ``method to reduce 
the consequences of a terrorist attack'' to include efforts to 
mitigate, control, contain, or recover a substance of concern 
in the event of a chemical facility terrorist incident.

Section 2102. Risk-based designation and ranking of chemical facilities

    This section grants authority to the Secretary to designate 
a chemical substance as a substance of concern and establish 
the regulated threshold quantities for each such chemical that 
is used, stored, manufactured, processed or distributed by a 
chemical facility. Factors for consideration are the potential 
for death, injury, or serious adverse effects to human health, 
the environment, critical infrastructure, public health, 
homeland security, national security, or the national economy 
from a chemical facility terrorist incident. The Secretary may 
use the Appendix A list that was published in the Federal 
Register on November 20, 2007 (Federal Register Vol. 72, No. 
223; 6 CFR Part 27) under CFATS to fulfill this requirement.
    The Secretary is required to maintain a list of chemical 
facilities that have more than a threshold quantity of a 
``substance of concern'' and pose a sufficient security risk 
based on certain criteria, including the potential threat or 
likelihood of a terrorist attack at the facility; the potential 
harm to human health, the environment, critical infrastructure, 
public health, homeland security, national security, and the 
national economy, from a terrorist incident; and the proximity 
of the facility to large population centers. The Secretary may 
require a facility to submit information regarding the 
facility's possession of substances of concern to determine 
whether it is ``covered'' under this title. The Secretary may 
use the review process used in the 2008 assessment of chemical 
facilities, commonly referred to as the ``top screen'' process 
under CFATS, to fulfill this requirement.
    The Secretary is required to assign each covered chemical 
facility to one of at least four risk-based tiers, with tier 1 
being the highest risk tier. The Secretary must notify 
facilities within 60 days of their designation or any change in 
their designation. The Secretary must periodically review the 
list of substances of concern and the threshold quantities. 
Additionally the Secretary at any time may add, remove, or 
change the tier assignment for each facility.
    The Secretary must provide covered chemical facilities with 
relevant information about probable threats to these 
facilities.

Section 2103. Security vulnerability assessments and site security 
        plans

    This section requires the Secretary to develop regulations 
to establish risk-based, performance-based standards, 
protocols, and procedures for mandatory security vulnerability 
assessments (SVAs) and site security plans (SSPs) and set 
deadlines by tier for completing the SVAs and SSPs. The 
Committee intends that the Secretary may set staggered 
deadlines, based on tier, for submission of SVAs and SSPs. The 
Committee intends that the Secretary also may include staggered 
deadlines for submission of assessments required under section 
2111.
    Facilities must involve their employees and employee 
representatives, if any, when developing SVAs and SSPs. Upon 
request, the Secretary shall provide assistance and guidance to 
facilities conducting SVAs and SSPs to the extent that 
resources permit. The Secretary must approve or disapprove SVAs 
and SSPs within 180 days of receipt. The Committee intends that 
the Department of Homeland Security itself--rather than a third 
party--approve or disapprove SVAs and SSPs.
    Facilities must review and resubmit SVAs and SSPs at least 
every five years. In addition, facilities are required to 
notify the Secretary if they change their use or storage of a 
substance of concern or modify operations in a way that could 
affect the security vulnerability assessment or site security 
plan previously submitted.
    The Secretary is required to establish risk-based security 
performance standards for SSPs. The security performance 
standards are to be increasingly stringent according to the 
tier and allow a facility to choose a combination of security 
measures that together meet the security performance 
requirements. In addition, facilities closely located to each 
other may develop and implement coordinated SVAs and SSPs.
    The Committee believes that the methods of complying with 
risk-based performance standards may differ by facility, even 
when those facilities are classified within the same risk-based 
tier. For example, owners or operators of depleted underground 
geological natural gas storage facilities may require separate 
guidance for how to comply with the risk-based performance 
standard for restricting the area perimeter. In these 
facilities, natural gas, which contains methane, a chemical of 
interest on Appendix A, is stored in gaseous form within 
geologic rock formations several thousand feet below the ground 
surface. In addition to the geological depth of the storage 
facility, the corresponding surface area can range from 
hundreds of acres to nearly 100,000 acres. Owners of the 
corresponding surface land may have the right to use their 
property in a variety of way including agriculture, forest, 
dwellings, public roads, waterways, and land. Both the size of 
the perimeter of these facilities and their nature may make the 
restriction of their entire perimeters impractical.
    The Secretary may accept as fulfilling, in whole or in 
part, the regulatory requirements to complete an SVA or SSP, 
the submission of an alternate security program (ASP) that was 
prepared by the facility for some other reason, such as 
complying with another law or program. Any such ASP must 
provide an equivalent level of security to the level of 
security required under the regulations and must include 
employee participation. The Secretary must review and approve 
or disapprove each ASP. Under this section, the Secretary also 
may accept a personnel surety alternate security program to 
meet the requirements of section 2115.
    The Committee intends for covered chemical facilities to be 
able to submit, as ASPs, the vulnerability assessments, 
security plans or other documents developed to comply with 
other federal, state, local and tribal laws, or as part of an 
industry-wide security program, such as the American Chemistry 
Council's Responsible Care Code. The Committee intends for the 
Secretary to review and approve or disapprove all ASPs on a 
facility-by-facility basis. The Committee does not intend for 
any provision of section 2103 to relieve any covered chemical 
facility of the responsibility to comply with each requirement 
of this title or any other law.
    Section 2103 requires facilities subject to the Maritime 
Transportation Security Act (MTSA) to submit to the Secretary 
information necessary to determine whether such a facility 
would be designated as a covered chemical facility under CFATS. 
For those so designated, the Coast Guard may require a MTSA 
facility to update the SVA or SSP it completed under MTSA to 
obtain an equivalent level of security for substances of 
concern as required under CFATS. The Coast Guard and the 
Department of Homeland Security Office of Infrastructure 
Protection are required to enter into a formal agreement 
detailing the roles and responsibilities of each entity in 
carrying out their chemical security mandates.
    The Committee intends for the Coast Guard to be responsible 
for ensuring that MTSA facilities are in compliance with the 
requirements of the CFATS program. The Committee also believes 
that the formal agreement between the Office of Infrastructure 
Protection and the Coast Guard should ensure that chemical 
facilities at ports see ``one face'' of the Department for 
chemical security compliance issues.
    This section ensures that if a covered chemical facility 
already has a facility security plan approved under MTSA, it 
will not have to update or amend that plan in order to comply 
with section 2115. This section also ensures that the owner or 
operator of a covered chemical facility can grant an individual 
access to restricted areas or critical assets if the same owner 
or operator already granted the same individual access to 
restricted areas or critical assets of a facility regulated 
under MTSA in accordance with requirements of MTSA.
    The Committee is aware that some U.S. port facilities that 
handle chemicals in commerce may be subject to CFATS under the 
requirements of this Act. The Committee urges the Department 
and the Coast Guard to consider carefully any unique 
operational considerations, including those related to 
international trade, at these facilities when implementing this 
Act.
    The Secretary is required to coordinate with the Attorney 
General (through the Bureau of Alcohol, Tobacco, and Firearms) 
on facilities that import, manufacture, distribute, or store 
explosive materials and are required to be licensed under 18 
U.S.C. Sec. 40.
    All SSPs must set forth the roles and responsibilities of 
employees to deter and respond to a terrorist attack. Covered 
facilities must provide employees who have such roles or 
responsibilities with an annual minimum of eight hours of 
relevant training in chemical facility security. A covered 
chemical facility may satisfy any of the training requirements 
through other training that the owner or operator certifies as 
equivalent.
    The Secretary must seek to enter into an agreement with the 
National Institute for Environmental Health Sciences to make 
and administer grants or cooperative agreements for the 
training and education of employees, first responders, and 
emergency response providers who have a role in responding to a 
chemical facility terrorist incident.
    State and local authorities may not require facilities to 
provide them with SVAs and SSPs merely because the facilities 
have provided that information to the federal government.
    The Committee notes that the Department has indefinitely 
extended the deadline to comply with the requirements of CFATS 
for agricultural end users that possess a chemical of concern 
for the treatment of crops, feed, land, or livestock. This 
indefinite extension applies to facilities such as farms (e.g., 
crop, fruit, nut, and vegetable); ranches and rangeland; 
poultry, dairy, and equine facilities; turfgrass growers; golf 
courses; nurseries; floricultural operations; and public and 
private parks. The Committee does not intend for this 
legislation to require the Department to deviate from its 
current plan to address the security of agricultural end users 
on a separate timeline.

Section 2104. Site inspections

    The Secretary or his or her designee shall have the right 
of entry at reasonable times and shall conduct security 
verifications and inspections. The Secretary shall have access 
to the facility owners/operators, employees, and employee 
representatives during the inspections. For tier 1 and 2 
facilities, the Secretary also will conduct unannounced 
inspections to ensure and evaluate compliance with requirements 
under this title in a manner so as not to affect the actual 
security, physical integrity, safety or regular operations of 
the facility.
    Subject to appropriations, the Department must increase the 
number of chemical facility inspectors by at least 100 in 
fiscal years 2011 and 2012.
    During inspections, the Secretary must offer non-
supervisory employees the opportunity to share, confidentially, 
information about the facility's compliance or non-compliance. 
An employee representative, if any, also must have the 
opportunity to accompany the Secretary during inspections if 
the owner or operator is accompanying the Secretary. If the 
facility does not have an employee representative, a non-
supervisory employee also must have the opportunity to 
accompany the Secretary during inspections if the owner or 
operator is accompanying the Secretary. The Committee believes 
that the Secretary should be free to conduct parts of his or 
her inspections unaccompanied, if desired.

Section 2105. Records

    The Secretary may require the submission of, or access to, 
a facility's records in order to review such facility's SVA or 
SSP or their implementation. Such records must be handled in 
accordance with the information protection provisions of this 
title.

Section 2106. Timely sharing of threat information

    The Secretary is required to provide information concerning 
a threat that is relevant to a specific covered chemical 
facility, in as timely a manner, to the maximum extent 
practicable. The covered chemical facility is required to 
report to the Secretary any threat, significant security 
incident, or penetration of the facility's cyber or physical 
security, whether successful or not.

Section 2107. Enforcement

    This section requires the Secretary to disapprove a 
facility's SVA or SSP if it does not comply with the CFATS or 
the facility's SSP or implementation of the SSP is insufficient 
to address identified vulnerabilities or meet relevant security 
performance standards. While the Committee considers non-
discretionary under section 2107 the requirement that the 
Secretary determine whether a covered chemical facility's SVA 
or SSP complies with the requirements of the Act, the substance 
of these determinations is at the discretion of the Secretary.
    The Secretary must give notice of disapproval of such a 
determination that clearly explains the deficiencies and 
requires the owner or operator to revise the SVA or SSP within 
14 days. The Secretary may issue an order assessing a civil 
penalty, after providing the owner or operator the opportunity 
for appeal, or the Secretary may commence a civil action to 
enforce compliance by a covered chemical facility.
    If a facility continues to be in non-compliance, the 
Secretary may issue an order to cease operations. The Secretary 
may not, however, issue an order to cease operations to a 
wastewater treatment facility. The Court may also issue civil 
penalties of up to $50,000 per day, or the Secretary may order 
penalties of up to $25,000 per day for non-compliance.

Section 2108. Whistleblower protections

    The Secretary shall establish a process for any person to 
report to the Secretary any deficiencies or vulnerabilities at 
a covered chemical facility. The identity of such a person 
shall be kept confidential. The Secretary shall acknowledge 
receipt of the information and address, where appropriate, any 
reported deficiencies or vulnerabilities. Retaliation against 
whistleblowers is prohibited. Any employee who alleges 
retaliation may seek review in district court.

Section 2109. Federal preemption

    Any state or local government may issue a regulation, 
requirement, or standard of performance for chemical facility 
security that is more stringent than the federal statute.
    The Committee observes that in December 2007 Congress 
amended section 550 of P.L. 109-295 in the Consolidated 
Appropriations Act for FY2008. As amended, section 550 allows a 
state or political subdivision thereof to adopt a regulation, 
requirement, or standard of performance issued that is more 
stringent than federal law, unless there is an actual conflict 
between the state and federal law. The Committee dropped 
``unless there is an actual conflict'' as part of the language 
of section 2109. By dropping this language, the Committee does 
not intend to imply that state laws can conflict with federal 
laws. Instead, the Committee believes that the Supremacy Clause 
of the U.S. Constitution is sufficient to direct courts when 
considering whether a state law conflicts with this 
legislation.

Section 2110. Protection of information

    This section identifies the types of information that must 
be protected and the procedures for safeguarding it.
    Protected information is exempt from disclosure under the 
Freedom of Information Act and state, local and tribal 
information disclosure laws.
    This section gives the Secretary the authority to 
promulgate regulations and issue orders so as to prohibit the 
unauthorized disclosure of protected information. The Secretary 
must provide standards for the appropriate sharing of protected 
information with federal, state, local, and tribal governments, 
law enforcement and first responders, and designated chemical 
facility personnel. These standards also must include 
procedures for sharing with employees and their 
representatives, if any, those portions of a covered chemical 
facility's vulnerability assessment and site security plan that 
relate to the roles and responsibilities of those employees. 
The Committee intends for this to include the assessment 
conducted under section 2111.
    Any person who purposefully discloses protected information 
is subject to criminal penalties (including fines and up to one 
year of jail time) and, in the case of federal employees or 
officeholders, removal from federal office or employment.
    This section also requires that protected information be 
treated as Sensitive Security Information (SSI) in 
administrative or judicial proceedings.
    ``Protected information'' includes vulnerability 
assessments and site security plans and portions of other 
security-related documents, records, orders, notices, and 
letters that would be detrimental to the security of covered 
chemical facilities if disclosed. Protected information does 
not include information that is required to be made publicly 
available under any other law; information that a covered 
chemical facility has lawfully disclosed elsewhere; and other 
information that, if disclosed, would not be detrimental to the 
security of one or more covered chemical facilities.
    The Committee believes that the Department may continue to 
use the chemical-terrorism vulnerability information (CVI) 
regime for safeguarding protected information as long as the 
Department updates the regulations to comply with the 
requirements of this title.
    The Committee observes that on May 27, 2009, the President 
issued the Memorandum for the Heads of Executive Departments 
and Agencies on Classified Information and Controlled 
Unclassified Information (CUI), which creates an interagency 
task force on CUI. This task force is in the process of 
developing a framework for the sharing of CUI, taking into 
consideration the value of standardizing the procedures for 
designating, marking, and handling all sensitive but 
unclassified information; a presumption in favor of openness; 
and the need to prevent the public disclosure of information 
where disclosure would compromise privacy, security or other 
legitimate interests. The Committee does not intend for this 
section to obstruct the President's efforts to develop a CUI 
information sharing environment or to preclude the President 
from incorporating CVI into this CUI framework at a future 
date.
    This section does not relieve an owner or operator of any 
obligation to comply with other federal, state, or local laws 
requiring submission of information. Any authority or 
obligation of a federal agency to protect or disclose a record 
or information under any other law is not affected. This 
section does not prohibit the sharing of information with 
Congress. The Committee intends for the Department to provide 
Members of Congress with protected information, upon request.

Section 2111. Methods to reduce the consequences of a terrorist attack.

    This section lays out specific requirements of the risk-
based performance standard for assessing and, as appropriate, 
utilizing methods to reduce the consequences of a terrorist 
attack (hereafter ``methods''). The owner or operator of the 
covered chemical facility must include an assessment of such 
methods in its site security plan.
    The assessment must include several elements, including a 
description of the methods already implemented at the covered 
chemical facility as well as those considered for 
implementation. The Committee believes that the regulations 
promulgated by the Secretary should require the covered 
chemical facility to assess a wide range of potential methods, 
including both commercially available technology and innovative 
process changes unique to the covered chemical facility.
    For a covered chemical facility that stores, distributes, 
or sells a substance of concern but does not manufacture 
substances of concern or use them to manufacture other 
products, the Committee believes that the facility's assessment 
of methods should focus on potential practical changes to the 
manner in which the substance of concern is stored, 
distributed, or sold. The assessment does not need to focus on 
the question of whether the facility should continue to store, 
distribute, or sell the substance of concern. The Committee 
encourages the Department to provide guidance to such covered 
chemical facilities to assist them in complying with this 
section.
    The assessment also must include a description of the 
degree to which each method could reduce or already has reduced 
the consequences of the potential extent of death, injury, or 
serious adverse effects to human health resulting from a 
release of a substance of concern. It also must discuss the 
technical feasibility, costs, avoided costs (including actual 
and potential avoided liabilities), personnel implications, 
savings and applicability of implementing each method.
    The Committee intends for the Department to require each 
covered chemical facility to conduct a cost analysis associated 
with each method considered, including an assessment of the 
operational costs (and savings, if applicable), construction 
costs, cost savings realized by reducing physical security or 
mitigation needs, any reduction in terrorism-related insurance 
costs, personnel implications (both an assessment of the number 
of individuals who might need to be hired to implement the 
method as well as any other personnel implications), other 
avoided costs (i.e. reducing the cost of regulatory 
compliance), and any other cost-or-savings-related information 
the covered chemical facility or the Secretary deems relevant.
    The Committee intends for the Department to require each 
covered chemical facility to conduct an analysis of a wide 
range of potential methods. The definition of ``feasible'', 
drawn from the Safe Drinking Water Act definition, is intended 
to serve as a minimum baseline of methods that the Department 
must consider and is not intended to limit the scope of the 
facilities' analysis of available methods.
    This section also sets forth the conditions under which the 
Department can require implementation of methods to reduce the 
consequences of a terrorist attack at a covered chemical 
facility.
    The Committee understands that the Department places 
covered chemical facilities in risk-based tiers because of the 
extent of the risk of various hazards, including release, theft 
or diversion, and contamination or sabotage. The covered 
chemical facilities placed in tiers 1 or 2 for a release risk 
both possess large quantities of substances of concern and, 
because they are located in or near population centers, are the 
most likely to cause death, injury, and other serious 
consequences in the event of a release of a substance of 
concern. Consequently, the Committee chose to give the 
Department the authority to require implementation of methods 
to reduce the consequences of a terrorist attack at this subset 
of high-risk facilities, under certain conditions, as described 
below.
    The Director of the Office of Chemical Facility Security 
can require a covered chemical facility to implement methods if 
the Director affirmatively determines, in his or her discretion 
and using the assessment provided by the covered chemical 
facility, that three conditions are met.
    First, the Director must determine that the implementation 
of methods would reduce the risk of death, injury, or serious 
adverse effects to human health from a chemical facility 
terrorist incident without increasing the terrorism security 
risk elsewhere. The Committee intends for the Director to focus 
on a potential shift or increase in security-related risks 
rather than consider a shift or increase in safety-related 
risks associated with human error. For example, some may argue 
that a reduction in the amount of substance of concern stored 
at a covered chemical facility could add shipments of the 
substance of concern to the covered chemical facility, 
increasing the likelihood of a transportation-related accident. 
The Committee intends for the Director to focus on the 
potential shift or increase in risk or consequences from 
intentional acts rather than accidents or human error.
    Second, the Director must determine that the covered 
chemical facility can feasibly incorporate methods into the 
operation of the covered chemical facility. Finally, the 
Director must determine that the implementation of methods to 
reduce the consequences of a terrorist attack 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.
    The Committee believes that the Department should carefully 
consider the assessment of methods provided by each covered 
chemical facility as it decides whether to require 
implementation of such methods. In particular, the Department 
should work with each covered chemical facility to understand 
the technical feasibility and economic impacts of such methods, 
as these factors will be unique to each covered chemical 
facility.
    The Committee is also aware that some industry sectors, 
notably the pharmaceutical sector, are concerned that a 
``feasible'' method, as defined, could result in a product that 
is less effective or less available to those who need it. The 
Committee believes that the requirement that the Department 
determine that implementation of methods would not 
significantly and demonstrably impair the ability of a covered 
chemical facility to continue its business means that the 
Department must consider such unintended consequences. If a 
product made using an alternative method was less effective, 
for example, that could significantly and demonstrably impair 
the ability of the company to continue its business. If the 
implemented method forced the company to seek new regulatory 
approvals (such as from the Food and Drug Administration) that 
would take years to obtain, that also could mean that the 
covered chemical facility could not continue its business. The 
Committee expects the Department to consider carefully the 
challenges faced by different industry sectors when reviewing 
the assessments required under this section.
    The Director must use the facility's assessment, which it 
has included in its SSP, when making a determination but may 
request additional information from the facility or outside 
parties. For example, if the Director learns of a feasible 
method to reduce the consequences of a terrorist attack that a 
covered chemical facility did not include in its assessment, 
the Director may use that knowledge when making its 
determination on whether to require implementation of such 
method. Similarly, if the Director ascertains that a facility's 
proposed plan to adopt a method would increase security risks 
elsewhere, the Director may use this information in his or her 
determination. Finally, if the Director is aware that a covered 
chemical facility's estimate of the costs required to implement 
the method are inaccurate, the Director also may use this 
information in his or her determination. The Committee 
encourages the Director to request as much information as 
needed to make a determination that takes into account the 
unique characteristics, capabilities and constraints of the 
covered chemical facility.
    This section also requires the Director to make a written 
determination when it requires the implementation of a method 
to reduce the consequences of a terrorist attack, and, in the 
case of a covered chemical facility that is also regulated 
under the Maritime Transportation Security Act, to consult with 
the captain of the port at which the covered chemical facility 
is located in order to obtain port-specific input that may 
inform his or her determination.
    This section also sets forth the process by which a covered 
chemical facility can appeal if the Director determines the 
facility must implement methods to reduce the consequences of a 
terrorist attack. The owner or operator must, within 120 days, 
provide a written explanation to the Secretary of why it cannot 
comply with the determination. The Secretary then has an 
additional 120 days in which to consult with the owner or 
operator as well as with a wide range of technical experts. If 
the Secretary affirms the Director's determination, the 
Secretary must issue a final order that includes the views of 
the technical experts with whom he or she consulted.
    The Committee has not specified a process by which the 
Secretary should identify the wide range of technical experts 
with whom he or she must consult. The Committee expects that 
the Secretary will want to consult with a variety of experts 
depending on the chemical facility, industry sector, and 
methods under consideration. The Committee encourages the 
Secretary to create a process that addresses potential 
conflicts of interest, including affiliations with the owner of 
the covered chemical facility, its competitors, or adversaries 
in litigation; utilizes expertise found among members of the 
private sector, non-governmental organizations, government 
agencies, and academia; and ensures public transparency to the 
extent permitted under section 2110 of this Act.
    The Committee intends that the Department should make each 
determination under this section on a facility-by-facility 
basis and should not seek to impose wholesale, sector-wide 
process or chemical changes.
    For example, the Committee is aware of considerable debate 
about whether this section could require refineries to replace 
entire alkylation units that use hydrofluoric acid with units 
that use sulfuric acid or other alternatives. The Committee 
intends for the Department to consider and validate separately 
for each refinery the potential impediments to replacing 
alkylation units, such as the refinery's operating budget and 
profits, rather than make an industry-wide determination that 
refineries must use certain a technology or process. The 
Committee is aware of solid acid catalyst alkylation methods 
that are not yet commercially available in any full-scale 
refinery operation but are in the pilot stage in Europe. The 
Committee encourages the Department to similarly review and 
validate information on the potential technical feasibility and 
economic practicability of such methods.
    This section also contains several provisions that address 
the unique characteristics of the agricultural sector, 
particularly farm supplies merchant wholesalers that distribute 
and sell fertilizer or pesticides.
    For a covered chemical facility that stores, distributes or 
sells fertilizer or pesticides (but does not manufacture them), 
the Committee believes that the facility should focus on 
potential practical changes to the manner in which the 
fertilizer or pesticide is distributed or sold (such as the 
amount being stored or locations at which storage is 
occurring). It need not focus on the question of whether the 
pesticide or fertilizer should be distributed or sold in the 
first place. This section directs the Department to provide 
guidance, and, as appropriate, tools, methodologies or computer 
software to farm supplies merchant wholesalers to assist them 
in carrying out the requirements of the section.
    The section authorizes the Secretary to award grants to 
assist farm supplies merchant wholesalers in assessing methods 
to reduce the consequences of a terrorist attack, giving 
priority to those covered chemical facilities that have the 
greatest financial need. In addition, this section directs the 
Department to study how applying the requirements of this 
section to manufacturers, retailers, aerial commercial 
applicators, and distributors of pesticide and fertilizer could 
affect the agricultural sector overall.
    This section requires the Secretary to provide information 
on methods to reduce the consequences of a terrorist attack. 
The Committee intends that the Secretary provide this 
information to the regulated industry, academics, and others 
who may have interest. Information that is made available to 
the public shall not identify any specific facility and must 
comply with the protection of information requirements of 
section 2110.

Section 2112. Applicability

    This section clarifies that this title shall not apply to 
public water systems regulated under the Safe Drinking Water 
Act, any facility owned and operated by the Department of 
Defense, or all or part of chemical facility that is subject to 
regulation of security by the Nuclear Regulatory Commission 
(NRC) or an NRC agreement state, and has been designated by the 
NRC, the Secretary, and the agreement state (if applicable) as 
exempt. This title does not apply to the transportation in 
commerce (including incidental storage) of a substance of 
concern that is regulated as a hazardous material under Chapter 
51 of title 49 of the U.S. Code.

Section 2113. Savings clause

    This section specifies that nothing in this title affects 
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.); the Toxic 
Substances Control Act (15 U.S.C. 2601 et seq.); and the Fair 
Credit Reporting Act (15 U.S.C. 1681 et seq.).
    In addition, 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. Nothing in this title shall abridge or deny access to a 
chemical facility site to any person where required or 
permitted under any other law or regulation.

Section 2114. Office of Chemical Facility Security

    This section establishes an Office of Chemical Facility 
Security, administered by a Director, within the Department of 
Homeland Security. It sets forth qualifications for the 
Director of the Office of Chemical Facility Security, 
requirements for the selection process, and the 
responsibilities of the Director.

Section 2115. Security background checks of covered individuals at 
        certain chemical facilities

    This section requires the Secretary to issue regulations 
requiring covered chemical facilities to establish personnel 
surety for individuals with access to restricted areas or the 
facility's critical assets and describe the appropriate scope 
and applications of security background checks. An employer may 
not misrepresent to an employee or labor arbiter the background 
check rules and regulations issued by the Secretary and may not 
make an adverse employment decision and blame such decision on 
the requirements of this Act unless the individual in question 
has been convicted of, found not guilty of by reason of 
insanity, or is under want, warrant, or indictment for, or 
incarcerated for a specific crime as detailed under part 1572 
of title 49, CFR. Nothing in this section requires an employer 
to terminate, or make any other adverse employment decision 
regarding, an employee.
    This section requires the regulations issued under this 
section to include a prohibition on misrepresentations, in 
response to two incidents in which terminations were 
dishonestly attributed to homeland security requirements. In 
2006, Burlington Northern Santa Fe Railway and H&M 
International Transportation, Inc., which is a primary 
contractor for Union Pacific Railroad Company, Norfolk Southern 
Corporation, and CSX Corporation, both began conducting 
background checks of contractors. Those background checks were 
voluntary, and responded to guidance from the Department of 
Homeland Security.
    Large numbers of employees were fired as a result of those 
checks and were told that their firings were required by the 
Secretary of Homeland Security. Redress processes were unclear 
and inconsistent. The House Committee on Homeland Security 
investigated those incidents and determined that 
misrepresentations regarding the personnel surety requirements 
imposed by the Department of Homeland Security had violated 
workers' rights. The prohibition on misrepresentation required 
by this section is intended to address the problem identified 
in those incidents and protect workers' rights.
    The Committee does not intend to override corporate human 
resources policies. If a company wishes to terminate an 
employee for an offense not listed under part 1572 of title 49 
of the Code of Federal Regulations, the company may do so if 
permitted by existing collective bargaining agreements and 
other applicable laws, as long as the company does not 
attribute the adverse employment decision to the regulations 
issued under this section.
    The owner or operator of a covered chemical facility must 
provide an adequate and prompt redress process to a person 
subject to an adverse employment decision wishing to challenge 
the accuracy of the background check. The Secretary also must 
provide an adequate and prompt redress process for an 
individual subject to an adverse employment decision if that 
employment decision is based on the terrorist watchlist check 
or if the individual believes the employer violated this Act in 
making the adverse employment decision. The Secretary has the 
authority to order an appropriate remedy, if warranted.
    Additionally, the section requires the Secretary to provide 
a reconsideration process by which an affected individual can 
apply for a determination by the Secretary that the particular 
individual does not pose a security risk to the covered 
chemical facility at which he or she is employed. In making 
such a determination, the Secretary shall consider the criteria 
included in the waiver provision of section 70105(c) of title 
46, United States Code, as well as risks particular to a 
facility and possible connections between listed offenses and 
those risks. For example, an employee convicted of certain drug 
offenses may pose a security risk to a facility that produces 
or uses chemicals suitable for the production of illicit drugs. 
Similarly, an employee convicted of arson may pose a security 
risk to a facility that uses or stores flammable chemicals.
    Where the Secretary determines that an individual does not 
pose a security risk to the facility at which he or she is 
employed, the employer may not blame the adverse employment 
decision on the regulations issued under this section. If the 
employer wants to pursue the adverse employment decision, the 
employer therefore must use its internal human resources 
policy, collective bargaining agreements, or other such 
policies, as relevant and appropriate, to justify the adverse 
employment decision.
    The Secretary must determine, by regulation, which 
alternate security background checks conducted by the 
Department are sufficient to meet the requirements of this 
section. Where that finding is made, no additional background 
check will be required under this section, although an employer 
may choose to conduct an additional check. The Committee 
intends for Transportation Worker Identification Credentials 
(TWICs) to satisfy the requirements of this section.
    Nothing in this section affects the rights and 
responsibilities of a person subject to a background check or 
an employer under another federal, state, local, or tribal law 
or collective bargaining agreement. This section does not 
preempt any other federal, state, tribal, or local law that 
requires background checks.

Section 2116. Citizen enforcement

    Any person may commence a civil action against any 
governmental entity alleged to be in violation of an order or 
against the Secretary for failure to perform non-discretionary 
duties, such as promulgation of regulations. Suits are 
available to enforce orders against all government-owned 
facilities, regardless of whether they are contractor-operated. 
This section does not provide for civil actions against 
privately-owned chemical facilities.
    The Committee decided to exclude private rights of action 
against chemical facilities in this section for two reasons. 
First, the Department raised concerns about the risk of 
disclosure of sensitive security information in a judicial 
proceeding. Second, the standards created under this bill are 
risk-based and performance-based and therefore are more 
subjective and less susceptible to judicial review than 
standards in other statutes with citizen suit provisions. Since 
compliance data is protected from public disclosure and 
compliance is subjective, it would be difficult for a citizen 
to identify and allege a violation in this context. The 
Committee does not intend for this to serve as precedent for 
citizen suit provisions in any existing or future laws.
    Under this section, the federal court with jurisdiction 
over the matter shall be the U.S. District Court of the 
district wherein the violation is alleged to have occurred or 
the U.S. District Court of the District of Columbia. That court 
shall have authority to enforce the requirements of this Act. 
Relief to a person who prevails in a citizen suit is limited to 
the issuance of a court order requiring performance by a 
Secretary or facility and civil penalties set forth in section 
2107.
    No person may commence a civil action without a 60 day 
notice to the Secretary and/or the governmental entity alleged 
to be in violation of an order. The Secretary has the right to 
intervene in any civil action under this section to which she 
is not a party. The court may award court costs to the 
prevailing side, when appropriate, and may require the filing 
of a bond (or its equivalent) in accordance with the Federal 
Rules of Civil Procedure. Nothing in this section shall 
restrict any right that any person (or class of persons) may 
have under any statute or common law.
    With regard to non-discretionary duties of the Department, 
while the Committee considers non-discretionary the requirement 
under section 2111 that the Department make a determination 
whether a covered chemical facility should implement methods, 
the substance of this determination is at the Department's 
discretion.
    The Committee expects that information discussed and 
considered during proceedings under this section should be 
protected in accordance with section 2110 of this title, as 
well as any other applicable existing protections.

Section 2117. Citizen petitions

    This section requires the Secretary to establish a petition 
process to receive, investigate, and respond to allegations of 
violations at covered facilities. The Committee intends for 
this process to provide citizens with the opportunity to report 
alleged violations without filing suit. Petitions may allege a 
violation of any standard, regulation, condition, requirement, 
prohibition, plan, or order that has become effective under 
this title. The Committee believes that the Secretary, as part 
of the rulemaking under this section, may consider whether 
compliance with all requirements of an approved site security 
plan is sufficient to determine that the facility is not in 
violation of a standard under this title.
    The Secretary must establish by regulation the parameters 
of the petition process, including the format for petitions, 
the procedures for investigation of claims, the procedures for 
response, and the procedures for the Inspector General's de 
novo review of the Secretary's response to a petition.
    The Secretary must accept all petitions, investigate all 
allegations, determine whether an enforcement action is 
required, and respond to all accepted petitions in writing. The 
Secretary's response must include a brief summary of the 
investigation of the allegation, the determination made 
(including enforcement action taken), and the reasons for such 
determination. This written response must comply with the 
information protection provisions in section 2110.
    The petitioner may request that the Homeland Security 
Inspector General provide de novo review of any petition and 
the Department's response.
    A determination by the Secretary not to pursue enforcement 
action in response to a petition under this section shall 
constitute final agency action.

Section 2118. Annual report to Congress

    This section requires a report to Congress on the progress 
of implementation of this title not later than one year from 
the date of enactment and annually for the next four years and 
biennially thereafter. This report must include a qualitative 
discussion of how covered chemical facilities have reduced 
their risk of chemical facility terrorist incidents and a 
quantitative summary of the number of facilities that submitted 
information to the Department, the number of facilities in each 
tier, the number of SVAs and SSPs submitted and approved or 
disapproved, changes in tier due to implementation of methods 
to reduce consequences, number of compliance orders or 
penalties issued by the Secretary, background checks conducted 
and appealed, and any other information deemed necessary by the 
Secretary. The report will be made publicly available.

Section 2119. Authorization of appropriations

    This section authorizes $325 million for fiscal year 2011 
to carry out the requirements of this Act, which includes $225 
million for departmental expenditures in carrying out this Act 
and $100 million for facilities to fund capital costs incurred 
from implementing methods to reduce the consequences of a 
terrorist attack. The section authorizes $300 million for 
FY2012, with $225 million for departmental expenditures and $75 
million for consequence reduction, and $275 million for FY2013, 
with $225 million for departmental expenditures and $50 million 
for consequence reduction. This section carves out specific 
funding to assist farm supplies merchant wholesalers.
    The following sections are part of the legislation but do 
not amend the Homeland Security Act of 2002:
    (b) Clerical Amendment.--This updates the table of contents 
for of the Homeland Security Act of 2002 to reflect the 
amendments made by this bill.
    (c) Conforming Repeal.--Section 550 of the Department of 
Homeland Security Appropriations Act, 2007 (Public Law 109-295) 
is struck on the date of enactment of this Act.
    (d) Treatment of CFATS Regulations.--It is the sense of 
Congress that the Secretary was granted the authority to 
regulate security at chemical facilities pursuant to section 
550 of P.L. 109-295. Under that authority, the Secretary 
promulgated the CFATS regulations. In carrying out the 
requirements of this Act, the Secretary may use whatever parts 
of CFATS and tools developed under the April 9, 2007, CFATS 
regulation that are relevant in carrying out this Act and shall 
amend CFATS in order to carry out new requirements that the 
current CFATS regulations do not cover.
    (e) Facilities Covered by CFATS.--Owners or operators of 
facilities that are currently covered by CFATS (in place 
pursuant to section 550 of P.L. 109-295) shall update their 
previously-approved SVAs and SSPs in order to comply with the 
requirements of this Act on a timeline determined by the 
Secretary.
    (f) Consultation With Other Persons.--The Secretary shall 
consult with the Administrator of the Environmental Protection 
Agency and other appropriate persons regarding the designation 
of substances of concern, methods to reduce the consequences of 
a terrorist attack, treatment of protected information, and 
other such matters that the Secretary deems appropriate.
    (g) Deadline for Regulations.--The Secretary shall 
promulgate a proposed rule within 6 months of passage of this 
Act, and, after a notice and comment period, shall promulgate a 
final rule within 18 months of passage of this Act. The 
Committee intends for all Federal Agencies to take into account 
all necessary regulatory processes and timelines to guarantee 
full implementation by this date.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                     HOMELAND SECURITY ACT OF 2002


SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) * * *
  (b) Table of Contents.--The table of contents for this Act is 
as follows:

           *       *       *       *       *       *       *


   TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES

Sec.  2101.  Definitions.
Sec.  2102.  Risk-based designation and ranking of chemical facilities.
Sec.  2103.  Security vulnerability assessments and site security plans.
Sec.  2104.  Site inspections.
Sec.  2105.  Records.
Sec.  2106.  Timely sharing of threat information.
Sec.  2107.  Enforcement.
Sec.  2108.  Whistleblower protections.
Sec.  2109.  Federal preemption.
Sec.  2110.  Protection of information.
Sec.  2111.  Methods to reduce the consequences of a terrorist attack.
Sec.  2112.  Applicability.
Sec.  2113.  Savings clause.
Sec.  2114.  Office of Chemical Facility Security.
Sec.  2115.  Security background checks of covered individuals at 
          certain chemical facilities.
Sec.  2116.  Citizen enforcement.
Sec.  2117.  Citizen petitions.
Sec.  2118.  Annual report to Congress.
Sec.  2119.  Authorization of appropriations.

           *       *       *       *       *       *       *


   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).
          (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, submit, 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 
                        (c); 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 section;
                  (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) Participation in Preparation of Security Vulnerability 
Assessments or Site Security Plans.--Any person selected by the 
owner or operator of a covered chemical facility or by a 
certified or recognized bargaining agent of a covered chemical 
facility to participate in the development of the security 
vulnerability assessment or site security plan required under 
this section for such covered chemical facility shall be 
permitted to participate if the person possesses knowledge, 
experience, training, or education relevant to the portion of 
the security vulnerability assessment or site security plan on 
which the person is participating.
  (c) 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.
  (d) 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.
  (e) 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.
  (f) 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 Commandant of the Coast 
                Guard, after consultation with 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) Personnel surety.--
                          (i) Exception.--A facility designated 
                        as a covered chemical facility under 
                        this title that has had its facility 
                        security plan approved under section 
                        70103(c) of title 46, United States 
                        Code, shall not be required to update 
                        or amend such plan in order to meet the 
                        requirements of section 2115 of this 
                        title.
                          (ii) Equivalent access.--An 
                        individual described in section 
                        2115(a)(1)(B) who has been granted 
                        access to restricted areas or critical 
                        assets by the owner or operator of a 
                        facility for which a security plan is 
                        required to be submitted under section 
                        70103(c) of title 46, United States 
                        Code, may be considered by that owner 
                        or operator to have satisfied the 
                        requirement for passing a security 
                        background check otherwise required 
                        under section 2115 for purposes of 
                        granting the individual access to 
                        restricted areas or critical assets of 
                        a covered chemical facility that is 
                        owned or operated by the same owner or 
                        operator.
                  (D) Information sharing and protection.--
                Notwithstanding section 70103(d) of title 46, 
                United States Code, the Commandant of the Coast 
                Guard, after consultation with the Secretary, 
                shall apply the information sharing and 
                protection requirements in section 2110 of this 
                title to a facility described in subparagraph 
                (B).
                  (E) 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.
                  (F) 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.
  (g) Role of Employees.--
          (1) Description of role required.--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) Annual 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, as relevant to the role or 
        responsibility of such covered individual--
                  (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; 
                and
                  (J) include a discussion of appropriate 
                emergency response procedures, including 
                procedures to mitigate the effects of a 
                chemical facility terrorist incident.
          (3) Equivalent training.--During any year, with 
        respect to any covered individual with roles or 
        responsibilities under paragraph (1), an owner or 
        operator of a covered chemical facility may satisfy any 
        of the training requirements for such covered 
        individual under subparagraphs (A), (B), (C), (D), (E), 
        or (J) of paragraph (2) through training that such 
        owner or operator certifies, in a manner prescribed by 
        the Secretary, as equivalent.
          (4) Worker training grant program.--
                  (A) Authority.--The Secretary shall establish 
                a grant program to award grants to or enter 
                into cooperative agreements with eligible 
                entities to provide for the training and 
                education of covered individuals with roles or 
                responsibilities described in paragraph (1) and 
                first responders and emergency response 
                providers that would respond to a chemical 
                facility terrorist incident.
                  (B) Administration.--The Secretary shall seek 
                to enter into an agreement with the National 
                Institute for Environmental Health Sciences to 
                make and administer grants or cooperative 
                agreements under this paragraph.
                  (C) Use of funds.--The recipient of funds 
                under this paragraph shall use such funds to 
                provide for the training and education of 
                covered individuals with roles or 
                responsibilities described in paragraph (1), 
                first responders, and emergency response 
                providers, including--
                          (i) the annual mandatory training 
                        specified in paragraph (2); and
                          (ii) other appropriate training to 
                        protect nearby persons, property, 
                        critical infrastructure, or the 
                        environment from the effects of a 
                        chemical facility terrorist incident.
                  (D) Eligible entities.--For purposes of this 
                paragraph, an eligible entity is a nonprofit 
                organization with demonstrated experience in 
                implementing and operating successful worker or 
                first responder health and safety or security 
                training programs.
  (h) State, Regional, or Local Governmental Entities.--No 
covered chemical facility shall be required under State, local, 
or tribal law to provide a vulnerability assessment or site 
security plan described under this title to any State, 
regional, local, or tribal government entity solely by reason 
of the requirement under subsection (a) that the covered 
chemical facility submit such an assessment and plan to the 
Secretary.

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 the site security plan of the facility is 
                intended to prevent;
                  (B) the ability of the chemical facility to 
                protect against security threats that are 
                required to be addressed by the site security 
                plan of the facility; and
                  (C) any weaknesses in the site security plan 
                of the chemical facility;
          (3) conducted so as not to affect the actual 
        security, physical integrity, safety, or regular 
        operations 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.
  (d) Chemical Facility Inspectors Authorized.--During the 
period of fiscal years 2011 and 2012, subject to the 
availability of appropriations for such purpose, the Secretary 
shall increase by not fewer than 100 the total number of 
chemical facility inspectors within the Department to ensure 
compliance with this title.
  (e) Confidential Communications.--The Secretary shall offer 
non-supervisory employees the opportunity to confidentially 
communicate information relevant to the employer's compliance 
or non-compliance with this title, including compliance or non-
compliance with any regulation or requirement adopted by the 
Secretary in furtherance of the purposes of this title. An 
employee representative of each certified or recognized 
bargaining agent at the covered chemical facility, if any, or, 
if none, a non-supervisory employee, shall be given the 
opportunity to accompany the Secretary during a physical 
inspection of such covered chemical facility for the purpose of 
aiding in such inspection, if representatives of the owner or 
operator of the covered chemical facility will also be 
accompanying the Secretary on such inspection.

SEC. 2105. RECORDS.

  (a) Request for Records.--In carrying out this title, the 
Secretary may require 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--
          (1) reviewing or analyzing a security vulnerability 
        assessment or site security plan submitted under 
        section 2103; or
          (2) assessing the implementation of such a site 
        security plan.
  (b) Proper Handling of Records.--In accessing or copying any 
records under subsection (a), the Secretary shall ensure that 
such records are 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, 
        in his or her discretion, 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 
        may--
                  (A) after providing notice to the owner or 
                operator of the covered chemical facility and 
                an opportunity for such owner or operator to 
                appeal the Secretary's determination, 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)--
          (1) shall be exempt from disclosure under section 552 
        of title 5, United States Code; and
          (2) shall not be made available pursuant to any 
        State, local, or tribal law requiring disclosure of 
        information or records.
  (b) Information Sharing.--
          (1) In general.--The Secretary shall prescribe such 
        regulations, and may issue such orders, as necessary to 
        prohibit the unauthorized disclosure of protected 
        information, as described in subsection (g).
          (2) Sharing of protected information.--The 
        regulations under paragraph (1) shall provide standards 
        for and facilitate the appropriate sharing of protected 
        information with and between Federal, State, local, and 
        tribal authorities, emergency response providers, law 
        enforcement officials, designated supervisory and 
        nonsupervisory covered chemical facility personnel with 
        security, operational, or fiduciary responsibility for 
        the facility, and designated facility employee 
        representatives, if any. Such standards shall include 
        procedures for the sharing of all portions of a covered 
        chemical facility's vulnerability assessment and site 
        security plan relating to the roles and 
        responsibilities of covered individuals under section 
        2103(g)(1) with a representative of each certified or 
        recognized bargaining agent representing such covered 
        individuals, if any, or, if none, with at least one 
        supervisory and at least one non-supervisory employee 
        with roles or responsibilities under section 
        2103(g)(1).
          (3) Penalties.--Protected information, as described 
        in subsection (g), shall not be shared except in 
        accordance with the regulations under paragraph (1). 
        Any person who purposefully publishes, divulges, 
        discloses, or makes known protected information in any 
        manner or to any extent not authorized by the standards 
        provided by the regulations under paragraph (1), shall, 
        upon conviction, be imprisoned for not more than one 
        year or fined in accordance with the provisions of 
        chapter 227 of title 18, United States Code, applicable 
        to class A misdemeanors, or both, and, in the case of 
        Federal employees or officeholders, shall be removed 
        from Federal office or employment.
  (c) Treatment of Information in Adjudicative Proceedings.--In 
any judicial or administrative proceeding, protected 
information described in subsection (g) shall be treated 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. 1381).
  (d) Other Obligations Unaffected.--Except as provided in 
section 2103(h), 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, local, or tribal government agency to 
protect or disclose any record or information that the Federal, 
State, local, or tribal 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, including any assessment 
                required under section 2111.
                  (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 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 required to be 
                        provided to, or documents and records 
                        created by, the Secretary under section 
                        subsection (b) or (c) of section 2102.
                          (v) Documents directly related to 
                        security drills and training exercises, 
                        security threats and breaches of 
                        security, and maintenance, calibration, 
                        and testing of security equipment.
                  (C) Other information, documents, or records 
                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.--
          (1) Assessment.--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--
                  (A) a description of the methods to reduce 
                the consequences of a terrorist attack 
                implemented and considered for implementation 
                by the covered chemical facility;
                  (B) the degree to which each method to reduce 
                the consequences of a terrorist attack, if 
                already implemented, has reduced, or, if 
                implemented, could reduce, the potential extent 
                of death, injury, or serious adverse effects to 
                human health resulting from a release of a 
                substance of concern;
                  (C) the technical feasibility, costs, avoided 
                costs (including liabilities), personnel 
                implications, savings, and applicability of 
                implementing each method to reduce the 
                consequences of a terrorist attack; and
                  (D) any other information that the owner or 
                operator of the covered chemical facility 
                considered in conducting the assessment.
          (2) Feasible.--For the purposes of this section, the 
        term ``feasible'' means feasible with the use of best 
        technology, techniques, and other means that the 
        Secretary finds, after examination for efficacy under 
        field conditions and not solely under laboratory 
        conditions, are available for use at the covered 
        chemical facility.
  (b) Implementation.--
          (1) Implementation.--
                  (A) In general.--The owner or operator of a 
                covered chemical facility that is assigned to 
                tier 1 or tier 2 because of the potential 
                extent and likelihood of death, injury, and 
                serious adverse effects to human health, the 
                environment, critical infrastructure, public 
                health, homeland security, national security, 
                and the national economy from a release of a 
                substance of concern at the covered chemical 
                facility, shall implement methods to reduce the 
                consequences of a terrorist attack on the 
                chemical facility if the Director of the Office 
                of Chemical Facility Security determines, in 
                his or her discretion, using the assessment 
                conducted pursuant to subsection (a), that the 
                implementation of such methods at the 
                facility--
                          (i) would significantly reduce the 
                        risk of death, injury, or serious 
                        adverse effects to human health 
                        resulting from a chemical facility 
                        terrorist incident but--
                                  (I) would not increase the 
                                interim storage of a substance 
                                of concern outside the 
                                facility;
                                  (II) would not directly 
                                result in the creation of a new 
                                covered chemical facility 
                                assigned to tier 1 or tier 2 
                                because of the potential extent 
                                and likelihood of death, 
                                injury, and serious adverse 
                                effects to human health, the 
                                environment, critical 
                                infrastructure, public health, 
                                homeland security, national 
                                security, and the national 
                                economy from a release of a 
                                substance of concern at the 
                                covered chemical facility; and
                                  (III) would not result in the 
                                reassignment of an existing 
                                covered chemical facility from 
                                tier 3 or tier 4 to tier 1 or 
                                tier 2 because of the potential 
                                extent and likelihood of death, 
                                injury, and serious adverse 
                                effects to human health, the 
                                environment, critical 
                                infrastructure, public health, 
                                homeland security, national 
                                security, and the national 
                                economy from a release of a 
                                substance of concern at the 
                                covered chemical facility;
                          (ii) can feasibly be incorporated 
                        into the operation of the covered 
                        chemical facility; and
                          (iii) 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.
                  (B) Written determination.--A determination 
                by the Director of the Office of Chemical 
                Facility Security pursuant to subparagraph (A) 
                shall be made in writing and include the basis 
                and reasons for such determination.
                  (C) Maritime facilities.--With respect to a 
                covered chemical facility for which a security 
                plan is required under section 70103(c) of 
                title 46, United States Code, a written 
                determination pursuant to subparagraph (A) 
                shall be made only after consultation with the 
                Captain of the Port for the area in which the 
                covered chemical facility is located.
          (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 Director's determination under 
                paragraph (1) shall, within 120 days of receipt 
                of the Director's determination, provide to the 
                Secretary a written explanation that includes 
                the reasons therefor. Such written explanation 
                shall specify whether the owner or operator's 
                inability to comply arises under clause (ii) or 
                (iii) of paragraph (1)(A), or both.
                  (B) Review.--Not later than 120 days of 
                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, as well as experts in the subjects 
                of environmental health and safety, security, 
                chemistry, design and engineering, process 
                controls and implementation, maintenance, 
                production and operations, chemical process 
                safety, and occupational health, as 
                appropriate, shall provide to the owner or 
                operator a written determination, in his or her 
                discretion, of whether implementation shall be 
                required pursuant to paragraph (1). If the 
                Secretary determines that implementation is 
                required, the Secretary shall issue an order 
                that establishes the basis for such 
                determination, including the findings of the 
                relevant experts, the specific methods selected 
                for implementation, and a schedule for 
                implementation of the methods at the facility.
  (c) Sectoral Impacts.--
          (1) Guidance for farm supplies merchant 
        wholesalers.--The Secretary shall provide guidance and, 
        as appropriate, tools, methodologies or computer 
        software, to assist farm supplies merchant wholesalers 
        in complying with the requirements of this section. The 
        Secretary may award grants to farm supplies merchant 
        wholesalers to assist with compliance with subsection 
        (a), and in awarding such grants, shall give priority 
        to farm supplies merchant wholesalers that have the 
        greatest need for such grants.
          (2) Assessment of impacts.--Not later than 6 months 
        after the date of enactment of this title, the 
        Secretary shall transmit an assessment of the potential 
        impacts of compliance with provisions of this section 
        regarding the assessment and, as appropriate, 
        implementation, of methods to reduce the consequences 
        of a terrorist attack by manufacturers, retailers, 
        aerial commercial applicators, and distributors of 
        pesticide and fertilizer to the Committee on Energy and 
        Commerce of the House of Representatives, the Committee 
        on Homeland Security of the House of Representatives 
        and the Committee on Homeland Security and Governmental 
        Affairs of the Senate. Such assessment shall be 
        conducted by the Secretary in consultation with other 
        appropriate Federal agencies and shall include the 
        following:
                  (A) Data on the scope of facilities covered 
                by this title, including the number and type of 
                manufacturers, retailers, aerial commercial 
                applicators and distributors of pesticide and 
                fertilizer required to assess methods to reduce 
                the consequences of a terrorist attack under 
                subsection (a) and the number and type of 
                manufacturers, retailers, aerial commercial 
                applicators and distributors of pesticide and 
                fertilizer assigned to tier 1 or tier 2 by the 
                Secretary because of the potential extent and 
                likelihood of death, injury, and serious 
                adverse effects to human health, the 
                environment, critical infrastructure, public 
                health, homeland security, national security, 
                and the national economy from the release of a 
                substance of concern at the facility.
                  (B) A survey of known methods, processes or 
                practices, other than elimination of or 
                cessation of manufacture of the pesticide or 
                fertilizer, that manufacturers, retailers, 
                aerial commercial applicators, and distributors 
                of pesticide and fertilizer could use to reduce 
                the consequences of a terrorist attack, 
                including an assessment of the costs and 
                technical feasibility of each such method, 
                process, or practice.
                  (C) An analysis of how the assessment of 
                methods to reduce the consequences of a 
                terrorist attack under subsection (a) by 
                manufacturers, retailers, aerial commercial 
                applicators, and distributors of pesticide and 
                fertilizer, and, as appropriate, the 
                implementation of methods to reduce the 
                consequences of a terrorist attack by such 
                manufacturers, retailers, aerial commercial 
                applicators, and distributors of pesticide and 
                fertilizer subject to subsection (b), are 
                likely to impact other sectors engaged in 
                commerce.
                  (D) Recommendations for how to mitigate any 
                adverse impacts identified pursuant to 
                subparagraph (C).
          (3) Farm supplies merchant wholesaler.--In this 
        subsection, the term ``farm supplies merchant 
        wholesaler'' means a covered chemical facility that is 
        primarily engaged in the merchant wholesale 
        distribution of farm supplies, such as animal feeds, 
        fertilizers, agricultural chemicals, pesticides, plant 
        seeds, and plant bulbs.
  (d) Provision of Information on Alternative Approaches.--
          (1) In general.--The Secretary shall make available 
        information 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 that the Secretary 
                determines are 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.
  (e) 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;
          (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; or
          (4) any public water system subject to the Safe 
        Drinking Water Act (42 U.S.C. 300f et seq.).

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.), the Toxic Substances Control Act (15 U.S.C. 2601 et 
seq.), and the Fair Credit Reporting Act (15 U.S.C. 1681 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.
  (c) Access.--Nothing in this title shall abridge or deny 
access to a chemical facility site to any person where required 
or permitted under any other law or regulation.

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 53 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--
                          (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, including 
                        any designated employee representative, 
                        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 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) Misrepresentation of Adverse Employment Decisions.--The 
regulations required by subsection (a)(1) shall set forth that 
it shall be a misrepresentation under subsection (a)(2)(E) to 
attribute an adverse employment decision, including removal or 
suspension of the employee, to such regulations unless the 
owner or operator finds, after opportunity for appropriate 
redress under the processes provided under subsection (c)(1) 
and (c)(2), that the person subject to such adverse employment 
decision--
          (1) has been convicted of, has been found not guilty 
        of by reason of insanity, 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 the owner or operator to provide 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 process established for employees 
        subject to consumer reports under the Fair Credit 
        Reporting Act (15 U.S.C. 1681 et seq.), as in force on 
        the date of enactment of this title;
          (2) provide 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 a determination by the Secretary 
        under subsection (b)(4), that is consistent with the 
        appeals process established under section 70105(c) of 
        title 46, United States Code, including all rights to 
        hearings before an administrative law judge, scope of 
        review, and a review of an unclassified summary of 
        classified evidence equivalent to the summary provided 
        in part 1515 of title 49, Code of Federal Regulations;
          (3) provide 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 a violation of subsection 
        (a)(2)(E), which shall not preclude the exercise of any 
        other rights available under collective bargaining 
        agreements or applicable laws;
          (4) establish a reconsideration process described in 
        subsection (d) for a person subject to an adverse 
        employment decision that was attributed by an owner or 
        operator to the regulations required by subsection 
        (a)(1);
          (5) have the authority to order an appropriate 
        remedy, including reinstatement of the person subject 
        to a security background check under subsection (a)(1), 
        if the Secretary determines that the adverse employment 
        decision was made in violation of the regulations 
        required under subsection (a)(1) or as a result of an 
        erroneous determination by the Secretary under 
        subsection (b)(4);
          (6) ensure that the redress processes required under 
        paragraphs (1), (2), or (3) afford to the person a full 
        disclosure of any public-record event covered by 
        subsection (b) that provides the basis for an adverse 
        employment decision; and
          (7) ensure that the person subject to a security 
        background check under subsection (a)(1) receives the 
        person's full wages and benefits until all redress 
        processes under this subsection are exhausted.
  (d) Reconsideration Process.--
          (1) In general.--The reconsideration process required 
        under subsection (c)(4) shall--
                  (A) require the Secretary to determine, 
                within 30 days after receiving a petition 
                submitted by a person subject to an adverse 
                employment decision that was attributed by an 
                owner or operator to the regulations required 
                by subsection (a)(1), whether such person poses 
                a security risk to the covered chemical 
                facility; and
                  (B) include procedures consistent with 
                section 70105(c) of title 46, United States 
                Code, including all rights to hearings before 
                an administrative law judge, scope of review, 
                and a review of an unclassified summary of 
                classified evidence equivalent to the summary 
                provided in part 1515 of title 49, Code of 
                Federal Regulations.
          (2) Determination by the secretary.--In making a 
        determination described under paragraph (1)(A), the 
        Secretary shall--
                  (A) give consideration to the circumstance of 
                any disqualifying act or offense, restitution 
                made by the person, Federal and State 
                mitigation remedies, and other factors from 
                which it may be concluded that the person does 
                not pose a security risk to the covered 
                chemical facility; and
                  (B) provide his or her determination as to 
                whether such person poses a security risk to 
                the covered chemical facility to the petitioner 
                and to the owner or operator of the covered 
                chemical facility.
          (3) Owner or operator reconsideration.--If the 
        Secretary determines pursuant to paragraph (1)(A) that 
        the person does not pose a security risk to the covered 
        chemical facility, it shall thereafter constitute a 
        prohibited misrepresentation for the owner or operator 
        of the covered chemical facility to continue to 
        attribute the adverse employment decision to the 
        regulations under subsection (a)(1).
  (e) 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.
  (f) Savings Clause.--
          (1) 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.
          (2) Existing rights.--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.
  (g) 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).
  (h) 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.
  (i) Department-Conducted Security Background Check.--The 
regulations under subsection (a)(1) shall set forth a process 
by which the Secretary, on an ongoing basis, shall determine 
whether alternate security background checks conducted by the 
Department are sufficient to meet the requirements of this 
section such that no additional security background check under 
this section is required for an individual for whom such a 
qualifying alternate security background check was conducted. 
The Secretary may require a facility to which the individual 
will have unescorted access to sensitive or restricted areas to 
submit identifying information about the individual and the 
alternate security background check conducted for that 
individual to the Secretary in order to enable the Secretary to 
verify the validity of the alternate security background check. 
Such regulations shall provide that no security background 
check under this section is required for an individual holding 
a transportation security card issued under section 70105 of 
title 46, United States Code.

SEC. 2116. CITIZEN ENFORCEMENT.

  (a) In General.--Except as provided in subsection (c), any 
person may commence a civil action on such person's own 
behalf--
          (1) against any governmental entity (including the 
        United States, any other governmental instrumentality 
        or agency, and any federally owned-contractor operated 
        facility, to the extent permitted by the eleventh 
        amendment to the Constitution) alleged to be in 
        violation of any order that has become effective 
        pursuant to this title; or
          (2) against the Secretary, for an alleged failure 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 order referred to in subsection (a)(1), to 
        order such governmental entity to take such action as 
        may be necessary, or both, or, in an action commenced 
        under subsection (a)(2), to order the Secretary to 
        perform the non-discretionary act or duty, and to order 
        any civil penalties, as appropriate, under section 
        2107.
  (c) Actions Prohibited.--No action may be commenced under 
subsection (a) prior to 60 days after the date on which the 
person commencing the action has given notice of the alleged 
violation to--
          (1) the Secretary; and
          (2) in the case of an action under subsection (a)(1), 
        any governmental entity alleged to be in violation of 
        an 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. CITIZEN PETITIONS.

  (a) In General.--The Secretary shall issue regulations to 
establish a petition process for petitions described in 
subsection (b), including--
          (1) the format for petitions;
          (2) the procedures for investigation of claims;
          (3) the procedures for response to petitions, 
        including timelines; and
          (4) the procedures for de novo review of responses to 
        petitions by the Office of the Inspector General for 
        the Department of Homeland Security.
  (b) Petitions.--The regulations issued pursuant to subsection 
(a) shall allow any person to file a petition with the 
Secretary--
          (1) identifying any person (including the United 
        States and any other governmental instrumentality or 
        agency, to the extent permitted by the eleventh 
        amendment to the Constitution) alleged to be in 
        violation of any standard, regulation, condition, 
        requirement, prohibition, plan, or order that has 
        become effective under this title; and
          (2) describing the alleged violation of any standard, 
        regulation, condition, requirement, prohibition, plan, 
        or order that has become effective under this title by 
        that person.
  (c) Requirements.--Upon issuance of regulations under 
subsection (a), the Secretary shall--
          (1) accept all petitions described under subsection 
        (b) that meet the requirements of the regulations 
        promulgated under subsection (a);
          (2) investigate all allegations contained in accepted 
        petitions;
          (3) determine whether enforcement action will be 
        taken concerning the alleged violation or violations;
          (4) respond to all accepted petitions promptly and in 
        writing;
          (5) include in all responses to petitions a brief and 
        concise statement, to the extent permitted under 
        section 2110, of the allegations, the steps taken to 
        investigate, the determination made, and the reasons 
        for such determination;
          (6) maintain an internal record including all 
        protected information related to the determination; and
          (7) provide an opportunity for review by the 
        Department of Homeland Security Inspector General on 
        the full record, including protected information, for 
        all determinations made under such regulations.
  (d) Final Agency Action.--
          (1) Ongoing enforcement proceedings.--Any 
        determination by the Secretary to pursue enforcement 
        action in response to a petition under this section 
        shall not constitute final agency action because of 
        ongoing enforcement proceedings.
          (2) Determination not to pursue enforcement.--Any 
        determination by the Secretary not to pursue 
        enforcement action in response to a petition under this 
        section shall constitute final agency action.

SEC. 2118. 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 and a 
                description of such implemented methods;
                  (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;
                  (J) the number of terrorist watchlist checks 
                conducted by the Secretary in order to comply 
                with the requirements of this title, the number 
                of appeals conducted by the Secretary pursuant 
                to the processes described under paragraphs 
                (2), (3) and (4) of section 2115(c), aggregate 
                information regarding the time taken for such 
                appeals, aggregate information regarding the 
                manner in which such appeals were resolved, 
                and, based on information provided to the 
                Secretary annually by each owner or operator of 
                a covered chemical facility, the number of 
                persons subjected to adverse employment 
                decisions that were attributed by the owner or 
                operator to the regulations required by section 
                2115; and
                  (K) 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. 2119. 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, of which up to $3,000,000 shall be made 
        available for grants authorized under section 
        2111(c)(1);
          (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, of which up to $3,000,000 shall be made 
        available for grants authorized under section 
        2111(c)(1); 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, of which up to $3,000,000 shall be made 
        available for grants authorized under section 
        2111(c)(1).
                              ----------                              


        DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2007



           *       *       *       *       *       *       *
TITLE V--GENERAL PROVISIONS

           *       *       *       *       *       *       *


  [Sec. 550. (a) No later than six months after the date of 
enactment of this Act, the Secretary of Homeland Security shall 
issue interim final regulations establishing risk-based 
performance standards for security of chemical facilities and 
requiring vulnerability assessments and the development and 
implementation of site security plans for chemical facilities: 
Provided, That such regulations shall apply to chemical 
facilities that, in the discretion of the Secretary, present 
high levels of security risk: Provided further, That such 
regulations shall permit each such facility, in developing and 
implementing site security plans, to select layered security 
measures that, in combination, appropriately address the 
vulnerability assessment and the risk-based performance 
standards for security for the facility: Provided further, That 
the Secretary may not disapprove a site security plan submitted 
under this section based on the presence or absence of a 
particular security measure, but the Secretary may disapprove a 
site security plan if the plan fails to satisfy the risk-based 
performance standards established by this section: Provided 
further, That the Secretary may approve alternative security 
programs established by private sector entities, Federal, 
State, or local authorities, or other applicable laws if the 
Secretary determines that the requirements of such programs 
meet the requirements of this section and the interim 
regulations: Provided further, That the Secretary shall review 
and approve each vulnerability assessment and site security 
plan required under this section: Provided further, That the 
Secretary shall not apply regulations issued pursuant to this 
section to facilities regulated pursuant to the Maritime 
Transportation Security Act of 2002, Public Law 107-295, as 
amended; Public Water Systems, as defined by section 1401 of 
the Safe Drinking Water Act, Public Law 93-523, as amended; 
Treatment Works as defined in section 212 of the Federal Water 
Pollution Control Act, Public Law 92-500, as amended; any 
facility owned or operated by the Department of Defense or the 
Department of Energy, or any facility subject to regulation by 
the Nuclear Regulatory Commission.
  [(b) Interim regulations issued under this section shall 
apply until the effective date of interim or final regulations 
promulgated under other laws that establish requirements and 
standards referred to in subsection (a) and expressly supersede 
this section: Provided, That the authority provided by this 
section shall terminate three years after the date of enactment 
of this Act.
  [(c) Notwithstanding any other provision of law and 
subsection (b), information developed under this section, 
including vulnerability assessments, site security plans, and 
other security related information, records, and documents 
shall be given protections from public disclosure consistent 
with similar information developed by chemical facilities 
subject to regulation under section 70103 of title 46, United 
States Code: Provided, That this subsection does not prohibit 
the sharing of such information, as the Secretary deems 
appropriate, with State and local government officials 
possessing the necessary security clearances, including law 
enforcement officials and first responders, for the purpose of 
carrying out this section, provided that such information may 
not be disclosed pursuant to any State or local law: Provided 
further, That in any proceeding to enforce this section, 
vulnerability assessments, site security plans, and other 
information submitted to or obtained by the Secretary under 
this section, and related vulnerability or security 
information, shall be treated as if the information were 
classified material.
  [(d) Any person who violates an order issued under this 
section shall be liable for a civil penalty under section 
70119(a) of title 46, United States Code: Provided, That 
nothing in this section confers upon any person except the 
Secretary a right of action against an owner or operator of a 
chemical facility to enforce any provision of this section.
  [(e) The Secretary of Homeland Security shall audit and 
inspect chemical facilities for the purposes of determining 
compliance with the regulations issued pursuant to this 
section.
  [(f) Nothing in this section shall be construed to supersede, 
amend, alter, or affect any Federal law that regulates the 
manufacture, distribution in commerce, use, sale, other 
treatment, or disposal of chemical substances or mixtures.
  [(g) If the Secretary determines that a chemical facility is 
not in compliance with this section, the Secretary shall 
provide the owner or operator with written notification 
(including a clear explanation of deficiencies in the 
vulnerability assessment and site security plan) and 
opportunity for consultation, and issue an order to comply by 
such date as the Secretary determines to be appropriate under 
the circumstances: Provided, That if the owner or operator 
continues to be in noncompliance, the Secretary may issue an 
order for the facility to cease operation, until the owner or 
operator complies with the order.
  [(h) This section shall not preclude or deny any right of 
anyState or political subdivision thereof to adopt or enforce 
any regulation,requirement, or standard of performance with 
respect to chemicalfacility 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 withrespect to chemical facilities 
within that State, unless there isan actual conflict between 
this section and the law of that State.]

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    We, the undersigned Members of the Committee on Energy and 
Commerce, oppose the passage of H.R. 2868 and submit the 
following comments to express our significant concerns 
regarding this legislation.
    While we applaud the efforts of the Majority on the 
Committee on Energy and Commerce to pass legislation that will 
address the October 2009 sunset of the existing Chemical 
Facility Anti-Terrorism Standards (CFATS) program at the 
Department of Homeland Security (DHS), we believe this bill 
will not ultimately enhance security and will make America a 
less safe place to live and work. Further, we question both the 
haste with which this sweeping bill is being moved, as well as 
the multiple changes to the existing CFATS program that this 
bill requires, in light of the infancy of that program and the 
dearth of any hard data to show where improvements, if any, are 
needed.
    In the fall of 2006, Congress passed Section 550 of the 
Department of Homeland Security Appropriations Act for Fiscal 
Year 2007 (Public Law 109-295). This law authorizes the DHS to 
regulate security at designated chemical facilities. This law's 
passage and the promulgation of regulations by DHS in the 
spring of 2007 were seen as important and effective steps for 
ensuring protection of chemical facilities against terrorist 
attack.
    Section 550 constituted DHS's first ever grant of 
regulatory authority, allowing DHS to regulate chemical 
facilities for security purposes. Under Section 550, the 
Secretary of Homeland Security was required to issue interim 
final regulations establishing risk-based performance standards 
for chemical facility security and requiring the development of 
vulnerability assessments, as well as the creation and 
implementation of risk- and performance-based site security 
plans at high-risk chemical facilities.
    In addition, under Section 550, DHS was required to review 
and approve assessment plans and oversee implementation for 
each facility. Moreover, DHS was prohibited from disapproving a 
site security plan for any reason other than lack of 
compliance. We believe this was a key feature of CFATS because 
it guaranteed that security concerns would not result in 
inappropriate, federal micromanagement of a plant's operations, 
nor interference with investment and planning decisions made by 
the plant's owners.
    Finally, Section 550 protected information developed for 
compliance with these DHS regulations from public disclosure, 
gave DHS the sole authority to audit and inspect chemical 
facilities, and authorized DHS to notify non-compliant 
facilities and close those refusing to take corrective actions.
    In the intervening time since enactment of the law and 
promulgation of final regulations, DHS has endeavored to 
implement the requirements of the CFATS program provided for 
under the 2006 legislation. Notwithstanding its best efforts, 
DHS has not yet fully implemented the entire CFATS program 
before the program's original sunset date--which we believe was 
premature--of October 4, 2009--a mere 17 days before the markup 
of this legislation by the full committee. To the contrary, we 
understand that DHS's letters notifying covered facilities that 
they were going to be placed in a high-risk tier under CFATS 
were mailed just one week before the markup of this bill in the 
full committee. Further, DHS has not yet conducted a single 
enforcement inspection, as testified to by the Department 
itself at an October 1, 2009, hearing before the Subcommittee 
on Energy and Environment.
    H.R. 2868 is not a bill about chemical facilities; this is 
a bill about facilities with chemicals. Against the backdrop of 
10 percent national unemployment and projections from the U.S. 
Bureau of Labor Statistics pointing to a 16 percent decrease in 
chemical manufacturing jobs and wages--as well as a frozen 
credit market and DHS estimates that the existing CFATS program 
alone will cost $18.5 billion by 2015--we believe that 
drastically changing the rules of our nation's chemical 
facility security program is neither wise nor warranted. 
Moreover, and quite importantly, after listening to the 
testimony of DHS on H.R. 2868 and assessing the current status 
of DHS's progress in implementing the CFATS program, we are 
convinced that neither DHS nor Congress is in a position to 
know if the current program is working; what changes to it, if 
any, are essential; and whether such changes would be justified 
by the potential costs. It seems more than reasonable to us 
that we should extend this program for a few years and actually 
implement it before we make changes. This program impacts the 
health of our economy and the security of our citizens. We are 
disappointed that the Majority of this Committee has rushed to 
promulgate new legislation and rejected this prudent view of 
policy.
    Aside from the requirements for the performance of 
vulnerability assessments, site security plans, and emergency 
response plans, we believe H.R. 2868 is well-intentioned but 
misguided. While characterized as a national security bill, it 
is in effect proposed environmental legislation, seeking to 
address environmental concerns while using the patina of 
security to justify its efforts. We do not believe that 
security should be a branch of environmental law and reject the 
idea that pollution control is the most effective anti-
terrorism strategy for our nation.
    In particular, we are extremely concerned about Section 
2110 of H.R. 2868, requiring an evaluation by facilities of 
Methods to Reduce the Consequence of a Terrorist Attack and 
forcing the highest risk facilities to justify to DHS why they 
should not be forced to make process, input, or storage changes 
to their respective manufacturing processes and facilities. 
Exacerbating our concern with these provisions are two things: 
(1) the remarks at the full committee markup by the Energy and 
Environment Subcommittee chairman, Mr. Markey, that this bill 
was not about bolstering security, and (2) the statement by DHS 
Deputy Under Secretary Philip Reitinger, when testifying before 
the House Homeland Security Committee on June 16, 2009: ``we do 
not have any positions [at DHS] that are formally IST 
specialists.''
    Moreover, we give serious weight to the October 1, 2009, 
testimony of Stephen Poorman, on behalf of the Society of 
Chemical Manufacturers and Affiliates, to our Energy and 
Environment Subcommittee who stated that inherently safer 
technology (IST)--the forerunner notion enshrined in Section 
2110--is hard to define and that experts have repeatedly 
testified before Congress that the government should not be in 
the business of mandating IST because of ``significant 
technical challenges that requires more research.'' Considering 
the implications of the requirements, the enforcement authority 
attendant to the requirements, and the universe of unique 
facilities that would be swept into this requirement, we have 
significant concerns about the mandates being foisted on 
American businesses and their far-reaching, potentially adverse 
effects across the industrial, manufacturing, and agricultural 
sectors.
    While the Minority offered an amendment to strike Section 
2110, we also made several efforts to bring sanity to the 
program contained in Section 2110. For instance, one amendment 
required more chemical engineers be hired by DHS before the 
provisions of the Act became enforceable. Another amendment 
prohibited active ingredients in lifesaving drugs from being 
taken off the market or rendered ineffective by this program. A 
third provided that mass layoffs for compliance cost reasons 
could not be the unintended result of these provisions. The 
Majority rejected each of these insurance policies, arguing, 
like the Wizard of Oz, to ``pay no attention to the man behind 
the curtain.''
    For the record, we note that the most dangerous time at a 
chemical plant is at either the start up or the shut down of 
its active operations. We believe we should make efforts to 
eliminate the proliferation of these events if at all possible. 
We note that DHS has testified that many facilities, without 
the benefit of a federal mandate, have voluntarily reduced 
their risks. These facilities did so because it made sense for 
many reasons, and these facilities could do it on their own 
timeline, minimizing risks to their workers, their plants, and 
the surrounding community.
    Finally, on this point, we agree with Neal Langerman, with 
the American Chemical Society, who explained that the plants 
covered under Section 2110 are also required to comply with the 
U.S. Environmental Protection Agency's Risk Management program 
and the U.S. Occupational Safety and Health Administration's 
Process Safety Management standard. These two federal programs, 
in addition to the requirements of the Emergency Planning and 
Community Right to Know Act, provide strong incentives to 
examine and implement safer processes and prepare for 
coordinated responses. We need to let these programs work in 
conjunction with Homeland Security's mandate to enhance 
infrastructure security, not try to muscle up on duplicate 
requirements that frustrate these efforts and the mandates of 
those separate agencies.
    In addition to the above, H.R. 2868 raises genuine national 
and homeland security concerns by rejecting security-enhancing 
provisions in favor of environmental law standards in other 
areas, most notably information protection. H.R. 2868 rejects 
the congressional tradition since the terrorist attacks of 9-11 
that affords broader protections to sensitive security 
information, including the vulnerability assessment; site 
security plan; and the books, records, and notes used to inform 
them or required to be otherwise kept by DHS. Instead, H.R. 
2868 adopts a public ``right-to-know'' view that only documents 
and information specifically identified in the law should be 
included as protected, effectively leaving unprotected 
materials that may have security implications. We do not 
underestimate the potential for such materials to be sought in 
discovery and compelled in litigation by people who wish us 
harm. For that reason, we are troubled by the legislation's 
conscious exclusion of certain materials in Section 
2110(g)(1)(C) from protection, allowing them to serve as terror 
``blue-prints'' for the able.
    Most strikingly, H.R. 2868 places an extremely high bar on 
the prosecution of improper disclosures of sensitive, protected 
information, and requires a showing that such information was 
divulged ``purposefully'' before any penalties would apply. 
This ``purposefully'' standard must be proven when trying to 
penalize persons for disclosure of protected, sensitive 
information. While we applaud the use of civil and criminal 
penalties in H.R. 2868, we seriously doubt there are many 
scenarios, if any, in which these sanctions can be enforced. 
The ``purposefully'' standard would not allow the United States 
to prosecute anyone who has been careless, negligent, or 
reckless with sensitive, protected information. At both 
subcommittee and full committee we offered the well-established 
standard of ``knowingly or recklessly,'' each time being 
rebuffed by arguments that did not reflect an understanding of 
the provisions of the bill or an appreciation for what was at 
stake. We believe a deterrent of a strong penalty is only 
efficacious if it can actually be enforced. We are disappointed 
that the Majority did not share this paramount concern as well.
    Two other matters that give us pause about this bill are 
the civil suit provisions in Section 2116 and the pre-emption 
provisions in Section 2109.
    While we believe Section 2116 has improved since 
introduction of H.R. 2868 by the removal of language permitting 
citizen suits against a regulated facility, we remain concerned 
that civil suits generally have no place in national security 
legislation. The Majority's main justification for including 
the language permitting suits against the federal government is 
based upon experiences with forcing federal entities into 
compliance with environmental law. Yet, the language is not 
limited to State action against the federal government; it 
additionally permits suits against the federal government by 
``any person''. We are concerned that under the legal construct 
of Section 2116, suits brought by any outside party against DHS 
for its failure to take mandatory action at a certain plant 
allows a plaintiff, through the court system, to gain access to 
information that this provision is otherwise trying to protect. 
It is no secret that terrorists hire lawyers, and DHS has 
testified before Congress that citizen suits may lead to the 
disclosure of sensitive information in these proceedings. 
Because we are not aware that either the Obama Administration 
requested this provision, we question why it is needed at all. 
We are disappointed the Majority defeated amendments to delete 
this provision, expressing no sympathy for the unintended 
consequences it might engender.
    Finally, on the matter of preemption, Section 2109 allows 
States and local governments to enact laws that are more 
``stringent'' than the federal law. This is a new standard to 
the chemical security program and one derived from federal 
environmental law. We believe the DHS program should be a 
uniform, national standard which States and local governments 
should not disrupt. This is not a novel approach. It is already 
the case in nuclear, hazmat transportation, aviation, and port 
security programs where the federal government is the dominant 
regulator. Embracing a patchwork approach to national security, 
however, the Majority voted against an amendment offered by the 
Minority that would have restricted States and local entities 
from enacting State or local laws that pose obstacles to, 
hinder, or frustrate the purpose of the chemical facilities 
terrorism law. While it may be appropriate in localized 
pollution cases to have State and local laws that are more 
stringent than the relevant federal environmental statutes, we 
cannot treat homeland security like a local problem relegated 
to one area or State.
    There are other provisions in this bill that give us pause, 
but they are secondary to the larger issues we have mentioned. 
Ultimately, we had hoped that because this bill relates to 
homeland security protection, long a bipartisan issue, that it 
would have been possible to reach a legislative compromise. We 
believe, however, that partisanship and misdirected ideology 
have left our Committee reporting a bill that naively 
sacrifices sound homeland security policy in the name of 
environmental goals.
    We will continue to fight the provisions we have identified 
above because they do not make us safer in defense of the 
country and people we have taken an oath to protect. Absent 
significant changes that balance real security with economic 
freedom; openness with firm, meaningful protections; and local 
flexibility with a strong, overarching framework; we must 
oppose this bill, as reported, and urge the Congress to do the 
same.

                                   Joe Barton,
                                           Ranking Member.
                                   Greg Walden.
                                   John Shimkus.
                                   Ralph Hall.
                                   Nathan Deal.
                                   Fred Upton.
                                   Cliff Stearns.
                                   George Radanovich.
                                   Ed Whitfield.
                                   Roy Blunt.
                                   Steve Buyer.
                                   Joseph R. Pitts.
                                   John Shadegg.
                                   Tim Murphy.
                                   Phil Gingrey.
                                   Sue Myrick.
                                   Mary Bono Mack.
                                   Lee Terry.
                                   Steve Scalise.
                                   John Sullivan.
                                   Marsha Blackburn.
                                   Michael Burgess.
                                   Mike Rogers.

                                  
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