[House Report 112-211]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-211

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



 
 FULL IMPLEMENTATION OF THE CHEMICAL FACILITY ANTI-TERRORISM STANDARDS 
                                  ACT

                                _______
                                

 September 19, 2011.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 908]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 908) to extend the authority of the Secretary of 
Homeland Security to maintain the Chemical Facility Anti-
Terrorism Standards program, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     3
Hearings.........................................................     4
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................    14
Statement of General Performance Goals and Objectives............    14
New Budget Authority, Entitlement Authority, and Tax Expenditures    14
Earmarks.........................................................    14
Committee Cost Estimate..........................................    14
Congressional Budget Office Estimate.............................    14
Federal Mandates Statement.......................................    15
Advisory Committee Statement.....................................    15
Applicability to Legislative Branch..............................    15
Section-by-Section Analysis of the Legislation...................    16
Changes in Existing Law Made by the Bill, as Reported............    17
Minority Views...................................................    19

                               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 ``Full Implementation of the Chemical 
Facility Anti-Terrorism Standards Act''.

SEC. 2. EXTENSION OF DEPARTMENT OF HOMELAND SECURITY CHEMICAL FACILITY 
                    ANTI-TERRORISM STANDARDS PROGRAM.

  Subsection (b) of section 550 of the Department of Homeland Security 
Appropriations Act, 2007 (Public Law 109-295; 6 U.S.C. 121 note) is 
amended by striking ``2011'' and inserting ``2018''.

SEC. 3. BACKGROUND CHECKS.

  Section 550 of the Department of Homeland Security Appropriations 
Act, 2007 (Public Law 109-295; 6 U.S.C. 121 note) is amended by adding 
at the end the following new subsection:
  ``(i)(1) No security background check is required under this section 
for an individual holding a valid transportation security card issued 
under section 70105 of title 46, United States Code.
  ``(2) The Secretary shall determine, on an ongoing basis, whether 
alternate security background checks conducted by the Secretary are 
sufficient to meet the requirements of the risk-based performance 
standards issued under this section such that no additional security 
background check is required under this section for an individual who 
has passed such a qualifying alternate security background check.
  ``(3) The owner or operator of a chemical facility subject to the 
regulations issued under this section may permit an individual holding 
a valid transportation security card issued under section 70105 of 
title 46, United States Code, or an individual who has passed a 
qualifying alternate security background check under paragraph (2), to 
have access to restricted areas or critical assets of such facility 
without the satisfaction of any other additional requirements imposed 
by the Secretary.
  ``(4)(A) Nothing in this subsection shall be construed to abridge any 
right or responsibility of--
          ``(i) an individual subject to a security background check 
        under this section; or
          ``(ii) an owner or operator of a chemical facility subject to 
        the regulations issued under this section.
  ``(B) Nothing in this subsection shall be construed to prohibit an 
owner or operator of a chemical facility from requiring, for reasons 
other than compliance with this section, that prospective or current 
employees or contractors undergo any additional background check in 
addition to that required under the risk-based performance standards 
issued under this section.''.

SEC. 4. AUTHORIZATION OF APPROPRIATIONS.

  There is authorized to be appropriated to carry out section 550 of 
the Department of Homeland Security Appropriations Act, 2007 (Public 
Law 109-295; 6 U.S.C. 121 note) $89,920,000 for each of fiscal years 
2012 through 2018.

                          Purpose and Summary

    In the fall of 2006, Congress, through Section 550 of 
Public Law 109-295, authorized the Secretary of Homeland 
Security to establish risk-based security performance standards 
for facilities with chemicals that the Secretary deems to 
present high levels of security risk. The Department, as 
required by Public Law 109-295, promulgated interim final 
regulations on April 9, 2007, resulting in the Chemical 
Facility Anti-Terrorism Standards (CFATS). Pursuant to Public 
Law 112-10, the statutory authority for CFATS is scheduled to 
sunset on October 4, 2011. H.R. 908, the Full Implementation of 
the Chemical Facility Anti-Terrorism Standards Act extends the 
CFATS program seven (7) years, or until October 4, 2018.
    In addition to maintaining the existing CFATS program and 
extending its legal authority, the legislation also makes 
authorizations for appropriations for each year the program's 
authority is authorized as well as adds a new provision to 
streamline personnel surety and badging requirements at 
facilities regulated under CFATS.

                  Background and Need for Legislation

    Chemical facilities are an integral part of the United 
States economy. According to the U.S. Bureau of Economic 
Analysis, the chemical and pharmaceutical industries, combined, 
accounted for $329 billion of value added in 2009--or 2.3 
percent in Gross Domestic Product to the United States economy. 
In addition, the U.S. Commerce Department estimated that 
exports of chemical products in 2009, including plastics, were 
about $153 billion in 2009, generated a balance of trade 
surplus in excess of $20 billion. These facilities, often 
located in densely populated areas, hold many chemicals that 
could make them 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 2006, Section 550 of the Homeland Security 
Appropriations Act of 2007 (P.L. 109-295) provided the 
Secretary of Homeland Security with interim authority to 
regulate the nation's chemical facilities. Pursuant to that 
authority, the Department of Homeland Security (DHS) issued the 
final Chemical Facility Anti-Terrorism Standards regulations on 
April 9, 2007. Those standards, which became effective on June 
8, 2007, required each chemical facility to report the amounts 
and types of chemicals on site so that DHS could determine 
whether that facility would be further regulated by CFATS 
rules. Based on those analyses, known as ``Top-Screen'' 
reviews, DHS began placing regulated facilities into one of 
four tiers.
    At the outset of the program, DHS expected that roughly 
30,000 facilities would be required to comply with the 
reporting requirements of the regulations, with approximately 
6,000 falling into one of the four (4) high risk categories 
requiring further regulation. As of March 2011, almost 40,000 
chemical facilities had registered with DHS and completed the 
Top-Screen process. Of these facilities, DHS considered more 
than 8,064 as high-risk and required them to submit a site 
vulnerability assessment.
    On March 31, 2011, Rand Beers, the DHS Under Secretary, 
National Protection and Programs Directorate, testified before 
the Subcommittee on Environment and that Economy that DHS has 
determined that CFATS covers 4,744 facilities (4,126 Final 
tiered facilities, 618 preliminarily tiered facilities). The 
Committee has been informed that as of the March 31, 2011 
hearing date the remaining 618 preliminarily tiered facilities 
are either gasoline terminals (approximately 350 facilities), 
facilities that submitted Alternative Security Plans in lieu of 
CSAT Site Vulnerability Assessments, or recent Top Screen 
submittals.
    In addition, DHS is still in the process of filling all its 
positions for chemical facility security officers and 
inspectors. DHS plans to continue to hire throughout the fiscal 
year. At the March 31 hearing, Under Secretary Beers testified 
that DHS has hired, or is in the process of on-boarding, more 
than 188 people and DHS plans to hire throughout this fiscal 
year to meet its staffing goal of 268 positions. In addition, 
Mr. Beers testified that DHS has filled 97 of 103 field 
inspector positions and all of the 14 field leadership 
positions.
    DHS began inspections of Tier 1 facilities in February 
2010, and has completed approximately 175 pre-authorization 
inspections to date. DHS has inspected some facilities' site 
security plans and issued 66 administrative orders to compel 
facility compliance. Mr. Beers testified that DHS only 
conducted four authorization inspections, or comprehensive and 
detailed inspections to verify that the descriptions of 
security measures listed in the facility's authorized SSP (or 
Alternative Security Plan) are accurate and complete, and that 
the equipment, processes, and procedures described are 
appropriate and function as intended. In responses to questions 
for the record from the March 31, 2011 hearing, Mr. Beers 
stated that DHS anticipates conducting authorization 
inspections at tiered sites within 180 days of issuance of a 
Letter of Authorization for a facility's Site Security Plan.
    Final Tiering assignments for facilities in Tiers II, III, 
and IV are ongoing. To date, DHS had not yet approved one of 
the 4,100 site security plans it has received for facilities in 
any risk Tier.
    The cost of extra security measures at CFATS-covered 
facilities is significant for both the private and public 
sector. In the last Congress, a trade association for large 
chemical production facilities testified before this Committee 
that its member companies spent $8 billion for association 
security codes and projects and will spend another $8 billion 
to fully comply with CFATS. Moreover, each of the three trade 
associations that appeared before the Subcommittee on 
Environment and the Economy on March 31, 2011, testified that, 
notwithstanding the significant investment of the private 
sector for compliance with industry and government mandated 
security programs, the heaviest costs to be borne by the 
private sector are the major capital investments that regulated 
facilities will need to make upon approval of their Site 
Security Plans. In addition, DHS, since the inception of CFATS, 
has spent around $340 million to initiate the program.
    Enactment of H.R. 908 is necessary to prevent the 
expiration of the program's legal authority in October 2011, 
and to provide long-term predictability for the private sector. 
Further, extending CFATS authorization will allow the DHS to 
fully implement the CFATS program and gather critical 
information on the strengths and weaknesses of a completely 
operational program, prevent the stranding of billions of 
dollars of investment and work-hours by the public and private 
sectors in security enhancements, and ensure our chemical 
sector remains secure.

                                Hearings

    The Subcommittee on Environment and the Economy held a 
hearing on H.R. 908, the Full Implementation of the Chemical 
Facility Anti-Terrorism Standards Act on March 31, 2011. The 
Subcommittee received testimony from: Rand Beers, Under 
Secretary for the National Protection and Programs Directorate 
(NPPD), U.S. Department of Homeland Security; Mr. Andrew Skipp, 
President, Hubbard-Hall, on behalf of the National Association 
of Chemical Distributors; Mr. Bill Allmond, Vice-President, 
Government Relations, Society of Chemical Manufacturers and 
Affiliates; Mr. David Tabar, The Sherwin-Williams Company, on 
behalf of the American Coatings Association; and Mr. James S. 
Frederick, Assistant Director, Health, Safety and Environment, 
United Steelworkers, on behalf of the Blue-Green Alliance.

                        Committee Consideration

    On May 4, 2011, the Subcommittee on Environment and the 
Economy met in open markup session and approved H.R. 908 for 
Full Committee consideration, as amended, by a voice vote.
    On May 25 and 26, 2011, the Committee on Energy and 
Commerce met in open markup session and reported favorably H.R. 
908, as amended, for House consideration, with further 
amendment, by a recorded vote of 33-16.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto. A 
motion by Mr. Upton to order H.R. 908, as amended, reported to 
the House, with further amendments, was agreed to by a recorded 
vote of 33-16.


                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee held a legislative 
hearing and made findings that are reflected in this report.

         Statement of General Performance Goals and Objectives

    To extend the authority of the Secretary of Homeland 
Security to maintain the Chemical Facility Anti-Terrorism 
Standards program.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
908, the Full Implementation of the Chemical Facility Anti-
Terrorism Standards Act, would result in no new or increased 
budget authority, entitlement authority, or tax expenditures or 
revenues.

                                Earmarks

    In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, 
the Committee finds that H.R. 908 contains no earmarks, limited 
tax benefits, or limited tariff benefits.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                  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 
provided by the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974:

H.R. 908--Full Implementation of the Chemical Facility Anti-Terrorism 
        Standards Act

    H.R. 908 would extend through fiscal year 2018 the 
Department of Homeland Security's (DHS's) authority to regulate 
security at certain chemical facilities in the United States. 
Under this authority, which under current law is set to expire 
in October, DHS runs the Chemical Facility Anti-Terrorism 
Standards (CFATS) program. Under CFATS, DHS collects and 
reviews information from chemical facilities in the United 
States to determine which facilities present a security risk. 
Facilities determined to present a high level of security risk 
are then required to develop a Site Security Plan (SSP). DHS in 
turn conducts inspections to validate the adequacy of a 
facility's SSP and their compliance with it.
    H.R. 908 would authorize $90 million annually for CFATS 
over the 2012-2018 period. That amount is equal to the $90 
million provided in 2011 for the program. CBO estimates that 
implementing this legislation would cost $361 million over the 
2012-2016 period and about $260 million in subsequent years, 
assuming the appropriation of the specified amounts.

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2012     2013     2014     2015     2016   2012-2016
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Authorization Level.....................................       90       90       90       90       90       450
Estimated Outlays.......................................       32       64       87       89       89       361
----------------------------------------------------------------------------------------------------------------

    H.R. 908 could result in the collection of additional civil 
penalties, which are recorded as revenues and deposited in the 
Treasury; therefore, pay-as-you go procedures apply. However, 
CBO estimates that such collections would be minimal and the 
effect on revenues would be insignificant. Enacting the bill 
would not affect direct spending.
    H.R. 908 would extend intergovernmental and private-sector 
mandates, as defined in the Unfunded Mandates Reform Act 
(UMRA), on owners and operators of public and private 
facilities where certain chemicals are present. Requirements on 
those owners and operators to assess the vulnerability of their 
facilities and to prepare and implement security plans would be 
mandates. 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 facility security plans, and allow 
DHS access to their property for inspections and verifications. 
In addition, owners and operators would have to continue to 
conduct background checks on employees who have access to 
restricted areas, and provide training to employees. Based on 
information from DHS and industry sources, CBO estimates that 
the aggregate costs of complying with the mandates would be 
small and would fall below the annual thresholds established in 
UMRA for intergovernmental and private-sector mandates ($71 
million and $142 million, respectively, in 2011, adjusted 
annually for inflation).
    The CBO staff contacts for this estimate are Jason Wheelock 
(for the federal costs), Melissa Merrell (for the 
intergovernmental impact), and Paige Piper/Bach (for the 
private-sector impact). The estimate was approved by Theresa 
Gullo, Deputy Assistant Director for Budget Analysis.

                       Federal Mandates Statement

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

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation 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.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    This section names this Act as the ``Full Implementation of 
the Chemical Facility Anti-Terrorism Standards Act''.

Section 2. Extension of Department of Homeland Security Chemical 
        Facility Anti-Terrorism Standards Program.

    This section amends section 550(b) of the Department of 
Homeland Security Appropriations Act, 2007 (Public Law 109-295; 
6 U.S.C. 121 note) by striking ``2011'' and inserting ``2018''.

Section 3. Background checks

    The Committee is aware of the substantial burden that is 
placed on CFATS regulated facilities and their employees by the 
myriad of personnel surety and identification card requirements 
and costs. The Committee believes that this program can and 
should be streamlined to allow for appropriate screening 
against the Terrorist Watch List for the financial benefit and 
convenience of workers and their employers.
    This section adds a new subsection (i) to Section 550 of 
the Department of Homeland Security Appropriations Act, 2007 
(Public Law 109-295; 6 U.S.C. 121 note) to provide that no 
additional security background check is required under CFATS 
for an individual holding a valid transportation worker 
identification card (TWIC) issued under the Maritime 
Transportation Security Act, section 70105 of title 46, United 
States Code. In addition, the owner or operator of a CFATS-
regulated facility may permit an individual holding a valid 
TWIC or an individual who has passed a qualifying alternate 
security background check--approved by the Secretary of 
Homeland Security because it satisfies CFATS's risk-based 
performance criteria--to have access to restricted areas or 
critical assets of such facility without needing to meet any 
other additional requirements imposed by the Secretary.
    This section also requires the Secretary of Homeland 
Security to determine, on an ongoing basis, whether alternate 
security background checks conducted by the Secretary are 
sufficient to meet DHS's risk-based performance standards 
issued such that no additional security background check is 
required under CFATS for an individual who has passed such a 
qualifying alternate security background check.
    Nothing in Section 550(i) abridges the collective 
bargaining rights of workers or employers or collective 
bargaining agreements already signed, except to the extent that 
they may require DHS-mandated backgrounds checks or 
identification cards made unnecessary by this section. Rather, 
by eliminating redundant requirements for background checks and 
identification cards subsection (i) is intended to benefit 
workers and employers by reducing compliance burdens such as 
extra application fees, time wasted filling out needless forms, 
and red-tape obstacles to career advancement.
    Nor does Section 550(i) prevent an owner or operator of a 
CFATS regulated facility from requiring, for reasons other than 
compliance with CFATS, that prospective or current employees or 
contractors undergo any additional background check in addition 
to that required under CFATS's risk-based performance 
standards.

Section 4. Authorization of appropriations

    This section authorizes $89.92 million for appropriation 
for Section 550 of Public Law 109-295 in each fiscal year that 
this section is authorized under this bill, from fiscal year 
2012 through fiscal year 2018. The Committee is aware that in 
fiscal year 2011, DHS was appropriated $89.928 million or 
$8,000 more than what is authorized by this bill. The Committee 
anticipates that as DHS becomes more proficient in operating 
CFATS, the financial burden to operate the program could 
lessen, allowing scarce federal resources to be deployed in 
other areas.

         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):

DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2007

           *       *       *       *       *       *       *



TITLE V--GENERAL PROVISIONS

           *       *       *       *       *       *       *


  Sec. 550. (a) * * *
  (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 on October 4, [2011] 2018.

           *       *       *       *       *       *       *

  (i)(1) No security background check is required under this 
section for an individual holding a valid transportation 
security card issued under section 70105 of title 46, United 
States Code.
  (2) The Secretary shall determine, on an ongoing basis, 
whether alternate security background checks conducted by the 
Secretary are sufficient to meet the requirements of the risk-
based performance standards issued under this section such that 
no additional security background check is required under this 
section for an individual who has passed such a qualifying 
alternate security background check.
  (3) The owner or operator of a chemical facility subject to 
the regulations issued under this section may permit an 
individual holding a valid transportation security card issued 
under section 70105 of title 46, United States Code, or an 
individual who has passed a qualifying alternate security 
background check under paragraph (2), to have access to 
restricted areas or critical assets of such facility without 
the satisfaction of any other additional requirements imposed 
by the Secretary.
  (4)(A) Nothing in this subsection shall be construed to 
abridge any right or responsibility of--
          (i) an individual subject to a security background 
        check under this section; or
          (ii) an owner or operator of a chemical facility 
        subject to the regulations issued under this section.
  (B) Nothing in this subsection shall be construed to prohibit 
an owner or operator of a chemical facility from requiring, for 
reasons other than compliance with this section, that 
prospective or current employees or contractors undergo any 
additional background check in addition to that required under 
the risk-based performance standards issued under this section.

                             MINORITY VIEWS

    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 2006, Congress gave the Department of Homeland Security 
the authority to create the Chemical Facility Anti-Terrorism 
Standards program, or CFATS. Congress did so not through a 
series of hearings, not through extensive negotiation with 
interested and concerned parties, but instead through a 
provision attached to an appropriations bill. It was intended 
as a temporary fix until Congress could establish a 
comprehensive program. The provision was slated to expire in 
2009.
    H.R. 908 does not establish such a comprehensive program.
    Instead, it extends the current statutory language and the 
interim program without significant amendment. While the CFATS 
program is a good start, it is limited by significant flaws in 
the underlying law.
    Section 550 does not cover a range of facilities that could 
endanger thousands in the event of a worst-case chemical 
release as a result of a terrorist attack, including drinking 
water utilities, chemical plants located on ports, and federal 
facilities. The exemption for facilities subject to regulation 
by the Nuclear Regulatory Commission removes several thousand 
high-risk facilities from CFATS, without an evaluation of 
whether the NRC regulations address the risks from chemicals 
stored there.
    These are security gaps that we need to close. Toxic 
chemicals stored onsite at a federal facility, for example, are 
as lethal as the same chemicals stored at a chemical facility 
covered by the program. An NRC regulation requiring a locked 
door for a room containing brachytherapy materials will not 
prevent an attack on a chemical tank down the hall. Democratic 
amendments offered to close these gaps were rejected by the 
majority during the Committee process. H.R. 908 would continue 
these baseless exemptions, perpetuating these security gaps.
    Although section 550 provides for the establishment of 
risk-based performance standards, it does not ensure that those 
standards will be met. Section 550 says that the Secretary 
``may disapprove'' plans that fail to meet these tailored 
standards--providing discretion to approve plans that fail to 
do so. Section 550 also includes a prohibition on disapproving 
a site security plan on the presence or absence of a particular 
security measure, even if that security measure is necessary to 
meet the risk-based performance standards. The section could 
therefore require the approval of plans that fail to meet the 
standards. Democratic amendments offered to address these 
issues were rejected by the majority, so H.R. 908 does nothing 
to ensure that the risk-based performance standards are met or 
that these high-risk facilities are secured.
    Section 550 fails to protect workers, who might be 
subjected to discrimination and other background check abuses 
under the guise of homeland security. Because of bipartisan 
efforts and negotiations, H.R. 908 will protect some workers, 
those already holding security credentials, from these abuses. 
H.R. 908 will do nothing to protect other workers.
    Section 550 fails to include workers, who are on the front 
lines of preventing and responding to a potential terrorist 
attack, in the development of site security plans. Workers have 
unparalleled experience and knowledge, which should inform the 
development of these plans. H.R. 908 would not address this 
shortcoming.
    Section 550 does not protect whistleblowers. Effective 
security for high-risk facilities depends on the timely 
furnishing of information about failures and violations. That, 
in turn depends on assurances to workers and other 
whistleblowers that they will not suffer retaliation for 
providing such information. Whistleblower protections are thus 
an essential component of an effective CFATS program, and 
should be included. H.R. 908 does not offer this essential 
protection.
    Section 550 does not create timelines for agency action or 
include mechanisms for ensuring timely agency action. Instead, 
it specifically exempts actions by the Secretary taken under 
this section from citizen enforcement and deadline suits. 
Despite efforts by democratic members to include deadlines in 
H.R. 908, the bill does not include timelines and will not 
ensure timely agency action.
    Under section 550, a new category of protected information 
was created. It is similar to other security related 
information categories, and provides significant protection. 
But it goes beyond other security related information 
designations, in a very troubling way. Section 550 provides 
that, in judicial proceedings, security information under this 
program should be treated ``as if'' it were classified, even 
though it does not meet the criteria to be considered 
classified. This distinction is unwarranted, and is a 
significant obstacle to administration efforts to harmonize 
information protection regimes. It is also an unnecessary 
obstacle to transparency and oversight of this important 
program. H.R. 908 does not address this issue.
    Over the past several months, efforts to address these 
shortcomings in H.R. 908 through bipartisan negotiations have 
been rebuffed. Rather than reflecting the expertise of the 
Energy and Commerce Committee, H.R. 908 preserves much of the 
flawed language codified by the Appropriations Committee in 
2006. Extending the authorization for this program is 
important, but this bill fails to address significant 
shortcomings, leaving facilities and the communities around 
them unacceptably vulnerable to terrorist attacks.

                                   Henry A. Waxman.
                                   G.K. Butterfield.
                                   Lois Capps.
                                   Bobby L. Rush.
                                   Eliot L. Engel.
                                   Edward J. Markey.
                                   Donna M. Christensen.
                                   Anna G. Eshoo.
                                   Frank Pallone, Jr.
                                   Doris O. Matsui.

                                  
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