House Report 112-224 - CHEMICAL FACILITY ANTI-TERRORISM SECURITY AUTHORIZATION ACT OF 2011

[House Report 112-224]
[From the U.S. Government Publishing Office]

112th Congress Rept. 112-224
HOUSE OF REPRESENTATIVES
1st Session Part 1

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

CHEMICAL FACILITY ANTI-TERRORISM SECURITY AUTHORIZATION ACT OF 2011

_______

September 26, 2011.--Ordered to be printed

_______

Mr. King of New York, from the Committee on Homeland Security,
submitted the following

R E P O R T

together with

ADDITIONAL VIEWS

[To accompany H.R. 901]

[Including cost estimate of the Congressional Budget Office]

The Committee on Homeland Security, to whom was referred
the bill (H.R. 901) to amend the Homeland Security Act of 2002
to codify the requirement that the Secretary of Homeland
Security maintain chemical facility anti-terrorism security
regulations, 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.............................................. 4
Background and Need for Legislation.............................. 5
Hearings......................................................... 6
Committee Consideration.......................................... 7
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 16
New Budget Authority, Entitlement Authority, and Tax Expenditures 16
Congressional Budget Office Estimate............................. 16
Statement of General Performance Goals and Objectives............ 17
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 17
Federal Mandates Statement....................................... 18
Preemption Clarification......................................... 18
Advisory Committee Statement..................................... 18
Applicability to Legislative Branch.............................. 18
Section-by-Section Analysis of the Legislation................... 18
Changes in Existing Law Made by the Bill, as Reported............ 24
Additional Views................................................. 31

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
Security Authorization Act of 2011''.

SEC. 2. CHEMICAL FACILITY ANTI-TERRORISM SECURITY REGULATIONS.

(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--CHEMICAL FACILITY ANTI-TERRORISM SECURITY REGULATIONS

``SEC. 2101. CHEMICAL FACILITY ANTI-TERRORISM SECURITY REGULATIONS.

``(a) In General.--The Secretary shall maintain, and revise as
necessary, regulations to protect chemical facilities against terrorism
and potential terrorist attacks. Such regulations shall include--
``(1) risk-based performance standards for chemical facility
security;
``(2) requirements for chemical facility security
vulnerability assessments; and
``(3) requirements for the development and implementation of
chemical facility site security plans.
``(b) Facilities Regulated.--The regulations required by subsection
(a) shall apply to any chemical facility that the Secretary determines
presents a high level of security risk with respect to acts of
terrorism, except that the Secretary may not apply such regulations to
any of the following:
``(1) Any facility owned or operated by the Department of
Defense.
``(2) Any facility owned or operated by the Department of
Energy.
``(3) Any facility subject to regulation by the Nuclear
Regulatory Commission.
``(4) Any facility regulated under chapter 701 of title 46,
United States Code.
``(5) A public water system, as such term is defined by
section 1401(4) of the Safe Drinking Water Act (42 U.S.C.
300f(4)).
``(6) A treatment works, as such term is defined by section
212(2) of the Federal Water Pollution Control Act (33 U.S.C.
1292(2)).
``(c) Security Measures.--The regulations required by subsection (a)
shall provide that each such facility, in developing and implementing
site security plans, be permitted to select layered security measures
that, in combination, appropriately address the vulnerability
assessment and the risk-based performance standards for security for
the facility.
``(d) Review.--
``(1) In general.--The Secretary shall review and approve or
disapprove each vulnerability assessment and site security plan
required under this title or by the regulations required by
subsection (a).
``(2) Standards for disapproval.--The Secretary may not
disapprove such a site security plan based on the presence or
absence of a particular security measure, but the Secretary may
disapprove such a site security plan if the plan fails to
satisfy the risk-based performance standards established by the
Secretary.
``(3) Deadline for notification.--Beginning after the
Secretary publishes final regulations to implement this
section, not later than 180 days, to the greatest extent
practicable, after the date on which the Secretary receives a
security vulnerability assessment or site security plan under
this title, the Secretary shall review and approve or
disapprove such assessment or plan and notify the covered
chemical facility of such approval or disapproval.
``(4) 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 not later than 14 days after
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.
``(5) Reporting.--The Secretary shall submit to the Committee
on Homeland Security of the House of Representatives and the
Committee on Homeland Security and Government Affairs of the
Senate, on an annual basis, information on the number of
instances during the year covered by the report where the
Secretary determined that the 180 day notification requirement
under paragraph (3) was impracticable.
``(e) Alternative Security Programs.--The Secretary may approve any
alternative security program established by a private sector entity or
Federal, State, or local authority, or under another applicable law, if
the Secretary determines that the requirements of such program meets
the requirements of this title and any regulations issued or maintained
pursuant to this title.
``(f) Security Background Checks.--In any personnel surety regulation
issued by the Secretary pursuant to subsection (a), the Secretary shall
include provisions on how an owner or operator of a covered chemical
facility can meet, in whole or in part, the requirements set forth in
such regulations by submitting--
``(1) information on an employee or individual holding a
valid transportation security card issued under section 70105
of title 46, United States Code;
``(2) an alternate security background check conducted by a
private sector entity, including the owner and operator of a
covered chemical facility and a non-profit personnel surety
accrediting organization; and
``(3) an alternate security background check conducted under
another applicable law.
``(g) Technical Assistance to Small Businesses.--The Secretary shall
provide technical assistance to any owner or operator of a covered
chemical facility who requests such assistance to prepare a security
vulnerability assessment or site security plan required under this
title or by the regulations required by subsection (a), if the covered
chemical facility is a small business concern, under the meaning given
that term in section 3 of the Small Business Act (15 U.S.C. 632).

``SEC. 2102. INFORMATION PROTECTION.

``(a) In General.--Notwithstanding any other provision of law,
information developed pursuant to this title, or pursuant to the
regulations required by section 2101(a), 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.
``(b) Sharing of Information.--
``(1) State and local governments.--This section does not
prohibit the sharing of such information, as the Secretary
determines appropriate, with State and local government
officials possessing the appropriate security clearances,
including emergency response providers, for the purpose of
carrying out this title, as long as such information may not be
disclosed pursuant to any State or local law.
``(2) Congress.--Nothing in this title shall permit or
authorize the withholding of information from Congress or any
committee or subcommittee thereof.
``(c) Administrative and Judicial Proceedings.--In any proceeding to
enforce this title, vulnerability assessments, site security plans, and
other information submitted to or obtained by the Secretary under this
title, and related vulnerability or security information, shall be
treated as if the information were classified material.

``SEC. 2103. ENFORCEMENT.

``(a) In General.--The Secretary shall audit and inspect chemical
facilities subject to regulation under this title for the purposes of
determining compliance with this title and the regulations required by
section 2101(a).
``(b) Orders for Compliance.--If the Secretary determines that a
chemical facility is not in compliance with this title or the
regulations required by section 2101(a), the Secretary shall provide
the owner or operator of the facility with written notification
(including a clear explanation of deficiencies in the vulnerability
assessment and site security plan) and an opportunity for consultation,
and issue an order to comply by such date as the Secretary determines
to be appropriate under the circumstances.
``(c) Civil Penalties.--Any person who violates an order issued under
this title shall be liable for a civil penalty under section 70119(a)
of title 46, United States Code.
``(d) Order To Cease Operation.--If the owner or operator of a
chemical facility subject to regulation under this title 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.
``(e) Exception.--Nothing in this title 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 title.

``SEC. 2104. JOBS IMPACT.

``Not later than one year after the date of the enactment of this
title, and annually thereafter, the Secretary shall submit to the
Committee on Homeland Security of the House of Representatives and the
Committee on Homeland Security and Governmental Affairs of the Senate a
report that, at a minimum, includes--
``(1) an estimate of the potential jobs created or lost
within the private sector as a result of the regulations
required under section 2101 of this title; and
``(2) information on feedback received from owners and
operators of covered chemical facilities about how the
regulations required under section 2101 of this title could be
revised to spur potential job creation or stem job losses.

``SEC. 2105. SCOPE.

``Nothing in this title 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.

``SEC. 2106. PREEMPTION.

``This title shall not preclude or deny any right of any State or
political subdivision thereof to adopt or enforce any regulation,
requirement, or standard of performance with respect to chemical
facility security that is more stringent than a regulation,
requirement, or standard of performance required under this title, or
otherwise impair any right or jurisdiction of any State with respect to
chemical facilities within that State, unless there is an actual
conflict between this title and the law of that State.

``SEC. 2107. TERMINATION.

``The authority provided by this title shall terminate on September
30, 2018.

``SEC. 2108. AUTHORIZATION OF APPROPRIATIONS.

``There is authorized to be appropriated to the Secretary to carry
out this title $89,928,000 for each of fiscal years 2012 through
2018.''.
(b) Table of Contents.--The table of contents in section 1(b) of the
Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by
adding at the end the following new items:

``TITLE XXI--CHEMICAL FACILITY ANTI-TERRORISM SECURITY REGULATIONS

``Sec. 2101. Chemical facility anti-terrorism security regulations.
``Sec. 2102. Information protection.
``Sec. 2103. Enforcement.
``Sec. 2104. Jobs impact.
``Sec. 2105. Scope.
``Sec. 2106. Preemption.
``Sec. 2107. Termination.
``Sec. 2108. Authorization of appropriations.''.

SEC. 3. CONFORMING REPEAL.

(a) Repeal.--The Department of Homeland Security Appropriations Act,
2007 (Public Law 109-295) is amended by striking section 550.
(b) Effective Date.--The amendment made by subsection (a) shall take
effect on the date of the enactment of this Act.

SEC. 4. HARMONIZATION.

Not later than 180 days after the date of the enactment of this Act,
the Secretary of Homeland Security shall submit to Committee on
Homeland Security of the House of Representatives and the Committee on
Commerce, Science, and Transportation of the Senate a report on the
extent to which the security requirements under title XXI of the
Homeland Security Act of 2002, as added by this Act, have been
harmonized with the security requirements for facilities regulated
under chapter 701 of title 46, United States Code.

Purpose and Summary

In 2006, Congress recognized the vulnerability of our
Nation's chemical infrastructure to terrorist attacks and
authorized the Department of Homeland Security (DHS) to
regulate security at our Nation's high-risk chemical
facilities. The Department issued interim final regulations
that became effective on June 8, 2007, and resulted in the
Chemical Facility Anti-Terrorism Standards (CFATS). The
legislative authority for CFATS was scheduled to sunset
originally on October 4, 2009, but has been extended by a
series of short-term extensions through October 4, 2011. The
Chemical Facility Anti-Terrorism Security Authorization Act of
2011, H.R. 901, provides the Secretary of Homeland Security
with long-term authority to continue providing for performance-
based regulation to protect chemical facilities against
terrorist attacks and maintain the progress being made by both
the Department and the chemical facilities.
H.R. 901 preserves the essential provisions of the original
statute (section 550 of the Department of Homeland Security
Appropriations Act of 2007, Pub.L. 109-295) and maintains the
existing framework of the CFATS program, requiring chemical
facilities to conduct Security Vulnerability Assessments,
develop Site Security Plans, and implement layered protective
measures necessary to meet risk-based performance standards
established by the Department. H.R. 901 codifies the
Secretary's authority to regulate chemical facility security
within the Homeland Security Act of 2002, and extends this
authority for seven years--through September 30, 2018. H.R. 901
is intended to provide long-term certainty to the Department
and chemical facilities regarding the requirement to improve
security at our Nation's chemical facilities while preserving
the ability of American companies to compete, remain
innovative, and create jobs.

Background and Need for Legislation

Some chemicals can be very toxic, flammable, or explosive--
which is why terrorists may seek to use them in attacks that
may cause mass casualties, weaken the U.S. economy, and damage
public confidence. The vulnerability of our Nation's chemical
infrastructure is particularly worrisome considering that many
chemical facility sites are located near dense population
centers.
Congress recognized this vulnerability and, in 2006,
through the Department of Homeland Security Appropriations Act
of 2007 (Pub.L. 109-295), authorized the Department to regulate
the security of high-risk chemical facilities. Given the
diverse and wide-ranging categories of facilities subject to
the regulations, Congress required that DHS establish ``risk-
based performance standards,'' providing flexibility for the
facility to identify security measures tailored to each site's
unique security challenges in order to meet the performance
standards.
In response, DHS issued the Chemical Facility Anti-
Terrorism Standards (CFATS) which became effective on June 8,
2007. Under these regulations, high-risk chemical facilities
are required to conduct Security Vulnerability Assessments
(SVAs), develop Site Security Plans (SSPs), and implement
layered protective measures necessary to meet the risk-based
performance standards established by the Department. The
Department places facilities into four high-risk tiers, with
those in the highest tier subject to the most stringent
security requirements. As a result, DHS must review and approve
the SSPs and monitor compliance of tiered facilities.
To date, DHS has reviewed information submitted by more
than 39,000 chemical facilities and determined that 4,755
facilities are high-risk and covered under CFATS. Some
facilities have demonstrated they are taking steps to reduce
their risk profile sufficiently so that they move to a lower
tier or are no longer subject to regulation under this program.
However, there is still much work to be done to secure the
chemical sector. DHS is currently in the process of reviewing
SSPs and performing inspections. No SSPs have been approved to-
date.
Enactment of H.R. 901 is necessary to continue
uninterrupted implementation of CFATS and protect U.S. citizens
against potential terrorist attacks. The legislative authority
for CFATS has been extended multiple times through a series of
short-term extensions, but this piecemeal approach has created
uncertainty for DHS and the chemical facilities when planning
investment and security strategies to meet CFATS standards.
Current statutory authority for CFATS is set to expire on
October 4, 2011; language was passed by the House of
Representatives in the FY 2012 Homeland Security Appropriations
Act (H.R. 2017, 112th Congress) that would extend the program
by one year. H.R. 901 provides DHS and chemical facilities with
needed certainty, consistency, and continuity by maintaining
the existing CFATS framework; codifying the Secretary's
authority to regulate chemical facility security in the
Homeland Security Act of 2002; and extending this authority for
seven years--allowing the program to be fully implemented. H.R.
901 preserves all of the essential elements contained in the
original statute. The Committee intends for this legislation to
provide for performance-based regulation to protect facilities
against attack, without increasing current spending or imposing
additional, burdensome and costly requirements that could slow
or hinder progress.
By maintaining the existing risk-based, CFATS framework,
H.R. 901 will enable the partnership between DHS and the
facilities to strike the right balance between strengthening
security against terrorism while preserving this vital sector
of our economy.

Hearings

No hearings were held on H.R. 901 in the 112th Congress;
however, the Committee has held hearings on chemical facility
regulations.
112th Congress
On February 11, 2011, the Subcommittee on Cybersecurity,
Infrastructure Protection and Security Technologies held a
hearing entitled ``Preventing Chemical Terrorism: Building a
Foundation of Security At Our Nation's Chemical Facilities.''
The Subcommittee received testimony from Hon. Rand Beers, Under
Secretary, National Protection and Programs Directorate,
Department of Homeland Security; Mr. Timothy J. Scott, Chief
Security Officer, The Dow Chemical Company, testifying on
behalf of the American Chemistry Council; Dr. M. Sam Mannan,
PhD, PE, CSP, Regents Professor and Director, Mary Kay O'Connor
Process Safety Center, Artie McFerrin Department of Chemical
Engineering, Texas A&M University System; and Mr. George S.
Hawkins, General Manager, District of Columbia Water and Sewer
Authority.
111th Congress
On June 16, 2009, the Committee on Homeland Security held a
hearing on H.R. 2868, the ``Chemical Facilities Anti-Terrorism
Act of 2009.'' The Committee received testimony from Mr. Philip
Reitinger, Deputy Under Secretary, National Protection and
Programs Directorate, Department of Homeland Security; Ms. Sue
Armstrong, Director, Infrastructure Security Compliance
Division, Office of Infrastructure Protection, Department of
Homeland Security; Mr. Paul Baldauf, Assistant Director,
Radiation Protection and Release Prevention, New Jersey
Department of Environmental Protection; Mr. Marty Durbin, Vice
President, Federal Affairs, American Chemistry Council; Dr.
Neal Langerman, Principle Scientist and CEO, Advanced Chemical
Safety, Inc.; and Mr. Martin Jeppeson, Director of Regulatory
Affairs, California Ammonia Company.
110th Congress
On December 12, 2007, prior to introduction of H.R. 5577 in
the 110th Congress, the Subcommittee on Transportation Security
and Infrastructure Protection held a hearing on H.R. _, the
``Chemical Facility Anti-Terrorism Act of 2008.'' The
Subcommittee received testimony from Col. Bob Stephan,
Assistant Secretary, Infrastructure Protection, Department of
Homeland Security; Mr.Clyde Miller, Director, Corporate
Security, BASF Corporation; Mr.Gerald C. Setley, Vice
President, Region 3 Director, International Chemical Workers
Union Council, United Food and Commercial Workers Union; Mr.
Gary Sondermeyer, Director of Operations, New Jersey Department
of Environmental Protection; and Dr. M. Sam Mannan, PhD, PE,
CSP, Professor and Director, Mary Kay O'Connor Process Safety
Center, Artie McFerrin Department of Chemical Engineering,
Texas A&M University System.
109th Congress
On June 15, 2005, prior to introduction of H.R. 5695 in the
109th Congress, the Subcommittee on Economic Security,
Infrastructure Protection, and Cybersecurity held a hearing
entitled ``Preventing Terrorist Attacks on America's Chemical
Plants.'' The Subcommittee received testimony from Mr. Robert
Stephan, Assistant Secretary for Infrastructure Protection,
Department of Homeland Security; Mr. Frank J. Cilluffo,
Director, Homeland Security Policy Institute, The George
Washington University; Mr. Stephen Bandy, Manager, Corporate
Safety and Security, Marathon Ashland Petroleum, LLC,
testifying on behalf of the National Petrochemical and Refiners
Association and the American Petroleum Institute; Mr. Marty
Durbin, Managing Director of Security and Operations, American
Chemistry Council; Mr. Allen Summers, President and Chief
Executive Office, Asmark, Inc., testifying on behalf of The
Fertilizer Institute; and Mr. Sal DePasquale, Independent
Consultant.

Committee Consideration

The Subcommittee on Cybersecurity, Infrastructure
Protection, and Security Technologies met on April 14, 2011, to
consider H.R. 901, and ordered the measure to be reported to
the Full Committee with a favorable recommendation, without
amendment, by a roll call vote of 6 yeas and 4 nays (Roll Call
Vote No. 4). The Subcommittee took the following actions:
The following amendments were offered:

An Amendment offered by Ms. Clarke (#1); to insert a new
subsection (b) in the proposed section 2010 of the Homeland
Security Act of 2002 entitled ``Facilities Regulated.'' and
insert a new paragraph (3) in subsection 2102(b) entitled
``Other Federal Agencies''; was NOT AGREED TO by a roll call
vote of 4 yeas and 6 nays (Roll Call Vote No. 1).

An Amendment offered by Ms. Richardson (#1); Page 2, line
18 strike ``and''. Page 2, after line 18, insert the following:
``(3) requirements for chemical facility process safety
reviews; and''. Page 2, line 19, strike ``(3)'' and insert
``(4)''.; was NOT AGREED TO by a roll call vote of 4 yeas and 6
nays (Roll Call Vote No. 2).

An amendment offered by Mr. Richmond (#3); Page 4, after
line 16, insert a new subsection ``(f) Employee
Participation.''; was NOT AGREED TO by a roll call vote of 4
yeas and 6 nays (Roll Call Vote No. 3).

The Committee on Homeland Security met on June 22, 2011, to
consider H.R. 901, and ordered the measure to be reported to
the Full House with a favorable recommendation, amended, by
voice vote. The Committee took the following actions:

The Committee adopted H.R. 901, as amended by a roll call
vote of 26 yeas and 5 nays (Roll Call Vote No. 12).
The following amendments were offered:

An Amendment in the Nature of a Substitute offered by Mr.
Lungren, was AGREED TO by a roll call vote of 22 yeas and 9
nays (Roll Call Vote No. 11).

An Amendment offered by Mr. Thompson (#1A) to the Amendment
in the Nature of a Substitute offered by Mr. Lungren; Page 2,
line 76, strike subsection (b) and insert a new subsection (b)
entitled ``Facilities Regulated.'' Page 5, after line 2, insert
a new paragraph (3) entitled ``Other Federal Agencies''; was
NOT AGREED TO by a roll call vote of 9 yeas and 15 nays (Roll
Call Vote No. 1).

An Amendment offered by Ms. Sanchez (#1B) to the Amendment
in the Nature of a Substitute offered by Mr. Lungren; Page 3,
after line 22, insert three new paragraphs: ``(3) Deadline for
Notification.''; ``(4) Notification of Disapproval.''; and
``(5) reporting.''; was AGREED TO by voice vote.

An Amendment offered by Ms. Richardson (#1C) to the
Amendment in the Nature of a Substitute offered by Mr. Lungren;
In the matter proposed to be inserted as title XXI of the
Homeland Security Act of 2002 by section 2 of the bill,
redesignate sections 2104 through 2017 as sections 2105 through
2108, respectively, insert a new section 2104, and amend the
proposed amendment to the table of contents of such Act
accordingly: ``Sec. 2104. Protections for Whistleblowers at
Chemical Facilities Associated with the Risk of Chemical
Facility Terrorist Incidents.''; was NOT AGREED TO by a roll
call vote of 11 yeas and 16 nays (Roll Call Vote No. 2).

An en bloc Amendment offered by Ms. Jackson Lee (#1D) to
the Amendment in the Nature of a Substitute offered by Mr.
Lungren; Page 5, after line 9, insert a new subsection entitled
``(d) Security Background Checks.''
Page 8, after line 3, insert a new section entitled ``Sec.
4. Harmonization.'' was AGREED TO by voice vote.

An Amendment offered by Ms. Clarke (#1E) to the Amendment
in the Nature of a Substitute offered by Mr. Lungren; Page 7,
line 6, strike ``2018'' and insert ``2013''. Page 7, line 10,
strike ``2018'' and insert ``2013''.; was NOT AGREED TO by
voice vote.

An Amendment offered by Ms. Clarke (#1F) to the Amendment
in the Nature of a Substitute offered by Mr. Lungren; Page 7,
line 6, strike ``2018'' and insert ``2016''. Page 7, line 10,
strike ``2018'' and insert ``2016''.; was NOT AGREED TO by a
roll call vote of 11 yeas and 18 nays (Roll Call Vote No. 3).

An Amendment offered by Ms. Clarke (#1G) to the Amendment
in the Nature of a Substitute offered by Mr. Lungren; Page 4,
after line 4, insert a new section entitled ``Sec. 2101A.
Office of Chemical Facility Inspections.''; was NOT AGREED TO
by a roll call vote of 11 yeas and 18 nays (Roll Call Vote No.
4).

An Amendment offered by Mr. Davis (#1H) to the Amendment in
the Nature of a Substitute offered by Mr. Lungren; Page 7,
after line 10, insert a new section entitled ``Sec. 2108. Jobs
Impact.''; was AGREED TO by a roll call vote of 28 yeas and 2
nays (Roll Call Vote No. 5).

An Amendment offered by Ms. Hochul (#1I) to the Amendment
in the Nature of a Substitute offered by Mr. Lungren; Page 4,
after line 4, insert a new subsection entitled ``(f) Technical
Assistance to Small Businesses.''; was AGREED TO by a roll call
vote of 29 yeas and 1 nay (Roll Call Vote No. 6).

An Amendment offered by Mr. Clarke (#1J) to the Amendment
in the Nature of a Substitute offered by Mr. Lungren; Page 5,
after line 9, insert a new section, and redesignate
accordingly, entitled ``Sec. 2103. Security Background Checks
of Covered Individuals at Certain Chemical Facilities.''; was
NOT AGREED TO by a roll call vote of 12 yeas and 18 nays (Roll
Call Vote No. 7).

An Amendment offered by Mr. Clarke (#1K) to the Amendment
in the Nature of a Substitute offered by Mr. Lungren; Page 2,
strike line 21 and all that follows through page 3, line 3.
Page 4 after line 4, insert a new subsection entitled ``(f)
Water Treatment Works and Public Water Systems.''; was NOT
AGREED TO by a roll call vote of 11 yeas and 19 nays (Roll Call
Vote No. 8).

An Amendment offered by Mr. Clarke (#1L) to the Amendment
in the Nature of a Substitute offered by Mr. Lungren; Page 4,
after line 4, insert a new subsection entitled ``(f)
Consultation.''; was NOT AGREED TO by a roll call vote of 12
yeas and 18 nays (Roll Call Vote No. 9).

An en bloc Amendment offered by Ms. Speier (#1M) to the
Amendment in the Nature of a Substitute offered by Mr. Lungren;
Page 4, beginning on line 6, strike subsection (a) and insert a
new subsection entitled ``(a) In General.''
Page 6, after line 13, insert a new subsection entitled
``(f) Delegation of Authority.''; was WITHDRAWN by unanimous
consent.
A unanimous consent request by Ms. Speier to withdraw her
amendment, was not objected to.

A Substitute Amendment in the Nature of a Substitute
offered by Mr. Thompson (#2) was NOT AGREED TO by a roll call
vote of 13 yeas and 18 nays (Roll Call Vote No. 10).

Committee Votes

Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the roll call
votes on the motion to report legislation and amendments
thereto.
The Subcommittee on Cybersecurity, Infrastructure
Protection, and Security Technologies considered H.R. 901 on
April 14, 2011, and ordered the measure reported to the House
with a favorable recommendation, without amendment, by a roll
call vote of 6 yeas and 4 nays (Roll Call Vote No. 4). The vote
was as follows:

YEAS NAYS
Mr. Daniel E. Lungren Ms. Yvette D. Clarke
Mr. Tim Walberg Ms. Laura Richardson
Mr. Michael T. McCaul Mr. Cedric L. Richmond
Mr. Patrick Meehan Mr. William R. Keating
Mr. Billy Long
Mr. Tom Marino

An Amendment offered by Ms. Clarke (#1); was NOT AGREED TO by
a roll call vote of 4 yeas and 6 nays (Roll Call Vote No. 1).
The vote was as follows:

YEAS NAYS
Ms. Yvette D. Clarke Mr. Daniel E. Lungren
Ms. Laura Richardson Mr. Tim Walberg
Mr. Cedric L. Richmond Mr. Michael T. McCaul
Mr. William R. Keating Mr. Patrick Meehan
Mr. Billy Long
Mr. Tom Marino

An Amendment offered by Ms. Richardson (#2); was NOT AGREED
TO by a roll call vote of 4 yeas and 6 nays (Roll Call Vote No.
2). The vote was as follows:

An Amendment offered by Mr. Richmond (#3); was NOT AGREED TO
by a roll call vote of 4 yeas and 6 nays (Roll Call Vote No.
3). The vote was as follows:

The Committee on Homeland Security met on June 22, 2011, to
consider H.R. 901, and ordered the measure to be reported to
the Full House with a favorable recommendation, as amended, by
voice vote. The Committee took the following votes:
An Amendment offered by Mr. Thompson (#1A) to the Amendment
in the Nature of a Substitute offered by Mr. Lungren; was NOT
AGREED TO by a roll call vote of 9 yeas and 15 nays (Roll Call
Vote No. 1). The vote was as follows:
YEAS NAYS
Mr. Bennie G. Thompson Mr. Peter T. King
Ms. Loretta Sanchez Mr. Daniel E. Lungren
Ms. Sheila Jackson Lee Mr. Mike Rogers
Mr. Henry Cuellar Mr. Michael T. McCaul
Ms. Yvette D. Clarke Mr. Gus M. Bilirakis
Ms. Laura Richardson Mrs. Candice S. Miller
Mr. Brian Higgins Mr. Tim Walberg
Mr. Hansen Clarke Mr. Chip Cravaack
Ms. Kathleen C. Hochul Mr. Patrick Meehan
Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks

An Amendment offered by Mrs. Richardson (#1C) to the
Amendment in the Nature of a Substitute offered by Mr. Lungren;
was NOT AGREED TO by a roll call vote of 11 yeas and 16 nays
(Roll Call Vote No. 2). The vote was as follows:
YEAS NAYS
Mr. Bennie G. Thompson Mr. Peter T. King
Ms. Loretta Sanchez Mr. Daniel E. Lungren
Ms. Sheila Jackson Lee Mr. Mike Rogers
Mr. Henry Cuellar Mr. Michael T. McCaul
Ms. Yvette D. Clarke Mr. Gus M. Bilirakis
Ms. Laura Richardson Mr. Paul C. Broun
Mr. Brian Higgins Mrs. Candice S. Miller
Ms. Jackie Speier Mr. Tim Walberg
Mr. Cedric L. Richmond Mr. Chip Cravaack
Mr. Hansen Clarke Mr. Patrick Meehan
Ms. Kathleen C. Hochul Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks

An Amendment offered by Ms. Clarke (#1F) to the Amendment in
the Nature of a Substitute offered by Mr. Lungren; was NOT
AGREED TO by a roll call vote of 11 yeas and 18 nays (Roll Call
Vote No. 3). The vote was as follows:
YEAS NAYS
Mr. Bennie G. Thompson Mr. Peter T. King
Ms. Loretta Sanchez Mr. Lamar Smith
Ms. Sheila Jackson Lee Mr. Daniel E. Lungren
Mr. Henry Cuellar Mr. Mike Rogers
Ms. Yvette D. Clarke Mr. Michael T. McCaul
Ms. Laura Richardson Mr. Gus M. Bilirakis
Mr. Brian Higgins Mr. Paul C. Broun
Ms. Jackie Speier Mrs. Candice S. Miller
Mr. Cedric L. Richmond Mr. Tim Walberg
Mr. Hansen Clarke Mr. Chip Cravaack
Ms. Kathleen C. Hochul Mr. Patrick Meehan
Mr. Benjamin Quayle
Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks

An Amendment offered by Ms. Clarke (#1G) to the Amendment in
the Nature of a Substitute offered by Mr. Lungren; was NOT
AGREED TO by a roll call vote of 11 yeas and 18 nays (Roll Call
Vote No. 4). The vote was as follows:

YEAS NAYS
Mr. Bennie G. Thompson Mr. Peter T. King
Ms. Loretta Sanchez Mr. Lamar Smith
Ms. Sheila Jackson Lee Mr. Daniel E. Lungren
Mr. Henry Cuellar Mr. Mike Rogers
Ms. Yvette D. Clarke Mr. Michael T. McCaul
Ms. Laura Richardson Mr. Gus M. Bilirakis
Mr. Brian Higgins Mr. Paul C. Broun
Ms. Jackie Speier Mrs. Candice S. Miller
Mr. Cedric L. Richmond Mr. Tim Walberg
Mr. Hansen Clarke Mr. Chip Cravaack
Ms. Kathleen C. Hochul Mr. Patrick Meehan
Mr. Benjamin Quayle
Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks

An Amendment offered by Mr. Davis (#1H) to the Amendment in
the Nature of a Substitute offered by Mr. Lungren; was AGREED
TO by a roll call vote of 28 yeas and 2 nays (Roll Call Vote
No. 5). The vote was as follows:

YEAS NAYS
Mr. Peter T. King Mr. Jeff Duncan
Mr. Lamar Smith Mr. Blake Farenthold
Mr. Daniel E. Lungren
Mr. Mike Rogers
Mr. Michael T. McCaul
Mr. Gus M. Bilirakis
Mr. Paul C. Broun
Mrs. Candice S. Miller
Mr. Tim Walberg
Mr. Chip Cravaack
Mr. Patrick Meehan
Mr. Benjamin Quayle
Mr. E. Scott Rigell
Mr. Billy Long
Mr. Tom Marino
Mr. Mo Brooks
Mr. Bennie G. Thompson
Ms. Loretta Sanchez
Ms. Sheila Jackson Lee
Mr. Henry Cuellar
Ms. Yvette D. Clarke
Ms. Laura Richardson
Mr. Danny K. Davis
Mr. Brian Higgins
Ms. Jackie Speier
Mr. Cedric L. Richmond
Mr. Hansen Clarke
Ms. Kathleen C. Hochul

An Amendment offered by Ms. Hochul (#1I) to the Amendment in
the Nature of a Substitute offered by Mr. Lungren; was AGREED
TO by a roll call vote of 29 yeas and 1 nay (Roll Call Vote No.
6). The vote was as follows:

YEAS NAYS
Mr. Peter T. King Mr. Mike Rogers
Mr. Lamar Smith
Mr. Daniel E. Lungren
Mr. Michael T. McCaul
Mr. Gus M. Bilirakis
Mr. Paul C. Broun
Mrs. Candice S. Miller
Mr. Tim Walberg
Mr. Chip Cravaack
Mr. Patrick Meehan
Mr. Benjamin Quayle
Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks
Mr. Bennie G. Thompson
Ms. Loretta Sanchez
Ms. Sheila Jackson Lee
Mr. Henry Cuellar
Ms. Yvette D. Clarke
Ms. Laura Richardson
Mr. Danny K. Davis
Mr. Brian Higgins
Ms. Jackie Speier
Mr. Cedric L. Richmond
Mr. Hansen Clarke
Ms. Kathleen C. Hochul

An Amendment offered by Mr. Clarke (#1J) to the Amendment in
the Nature of a Substitute offered by Mr. Lungren; was NOT
AGREED TO by a roll call vote of 12 yeas and 18 nays (Roll Call
Vote No. 7). The vote was as follows:

YEAS NAYS
Mr. Bennie G. Thompson Mr. Peter T. King
Ms. Loretta Sanchez Mr. Lamar Smith
Ms. Sheila Jackson Lee Mr. Daniel E. Lungren
Mr. Henry Cuellar Mr. Mike Rogers
Ms. Yvette D. Clarke Mr. Michael T. McCaul
Ms. Laura Richardson Mr. Gus M. Bilirakis
Mr. Danny K. Davis Mr. Paul C. Broun
Mr. Brian Higgins Mrs. Candice S. Miller
Ms. Jackie Speier Mr. Tim Walberg
Mr. Cedric L. Richmond Mr. Chip Cravaack
Mr. Hansen Clarke Mr. Patrick Meehan
Ms. Kathleen C. Hochul Mr. Benjamin Quayle
Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks

An Amendment offered by Mr. Clarke (#1K) to the Amendment in
the Nature of a Substitute offered by Mr. Lungren; was NOT
AGREED TO by a roll call vote of 11 yeas and 19 nays (Roll Call
Vote No. 8). The vote was as follows:

YEAS NAYS
Mr. Bennie G. Thompson Mr. Peter T. King
Ms. Loretta Sanchez Mr. Lamar Smith
Ms. Sheila Jackson Lee Mr. Daniel E. Lungren
Ms. Yvette D. Clarke Mr. Mike Rogers
Ms. Laura Richardson Mr. Michael T. McCaul
Mr. Danny K. Davis Mr. Gus M. Bilirakis
Mr. Brian Higgins Mr. Paul C. Broun
Ms. Jackie Speier Mrs. Candice S. Miller
Mr. Cedric L. Richmond Mr. Tim Walberg
Mr. Hansen Clarke Mr. Chip Cravaack
Ms. Kathleen C. Hochul Mr. Patrick Meehan
Mr. Benjamin Quayle
Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks
Mr. Henry Cuellar

An Amendment offered by Mr. Clarke (#1L) to the Amendment in
the Nature of a Substitute offered by Mr. Lungren; was NOT
AGREED TO by a roll call vote of 12 yeas and 18 nays (Roll Call
Vote No. 9). The vote was as follows:

YEAS NAYS
Mr. Bennie G. Thompson Mr. Peter T. King
Ms. Loretta Sanchez Mr. Lamar Smith
Ms. Sheila Jackson Lee Mr. Daniel E. Lungren
Mr. Henry Cuellar Mr. Mike Rogers
Ms. Yvette D. Clarke Mr. Michael T. McCaul
Ms. Laura Richardson Mr. Gus M. Bilirakis
Mr. Danny K. Davis Mr. Paul C. Broun
Mr. Brian Higgins Mrs. Candice S. Miller
Ms. Jackie Speier Mr. Tim Walberg
Mr. Cedric L. Richmond Mr. Chip Cravaack
Mr. Hansen Clarke Mr. Patrick Meehan
Ms. Kathleen C. Hochul Mr. Benjamin Quayle
Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks

On agreeing to the Substitute to the Amendment in the Nature
of a Substitute offered by Mr. Thompson (#2); was NOT AGREED TO
by a roll call vote of 13 yeas and 18 nays (Roll Call Vote No.
10). The vote was as follows:

YEAS NAYS
Mr. Bennie G. Thompson Mr. Peter T. King
Ms. Loretta Sanchez Mr. Lamar Smith
Ms. Sheila Jackson Lee Mr. Daniel E. Lungren
Mr. Henry Cuellar Mr. Mike Rogers
Ms. Yvette D. Clarke Mr. Michael T. McCaul
Ms. Laura Richardson Mr. Gus M. Bilirakis
Mr. Danny K. Davis Mr. Paul C. Broun
Mr. Brian Higgins Mrs. Candice S. Miller
Ms. Jackie Speier Mr. Tim Walberg
Mr. Cedric L. Richmond Mr. Chip Cravaack
Mr. Hansen Clarke Mr. Patrick Meehan
Mr. William R. Keating Mr. Benjamin Quayle
Ms. Kathleen C. Hochul Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks

On agreeing to the Amendment in the Nature of a Substitute
offered by Mr. Lungren, as amended(#1); was AGREED TO by a roll
call vote of 22 yeas and 9 nays (Roll Call Vote No. 11). The
vote was as follows:

YEAS NAYS
Mr. Peter T. King Mr. Bennie G. Thompson
Mr. Lamar Smith Ms. Loretta Sanchez
Mr. Daniel E. Lungren Ms. Yvette D. Clarke
Mr. Mike Rogers Ms. Laura Richardson
Mr. Michael T. McCaul Mr. Danny K. Davis
Mr. Gus M. Bilirakis Mr. Brian Higgins
Mr. Paul C. Broun Ms. Jackie Speier
Mrs. Candice S. Miller Mr. William R. Keating
Mr. Tim Walberg Ms. Kathleen C. Hochul
Mr. Chip Cravaack
Mr. Patrick Meehan
Mr. Benjamin Quayle
Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks
Ms. Sheila Jackson Lee
Mr. Henry Cuellar
Mr. Cedric L. Richmond
Mr. Hansen Clarke

On agreeing to H.R. 901, as amended; was AGREED TO by a roll
call vote of 26 yeas and 5 nays (Roll Call Vote No. 12). The
vote was as follows:

YEAS NAYS
Mr. Peter T. King Mr. Bennie G. Thompson
Mr. Lamar Smith Ms. Loretta Sanchez
Mr. Daniel E. Lungren Ms. Yvette D. Clarke
Mr. Mike Rogers Mr. Danny K. Davis
Mr. Michael T. McCaul Mr. Brian Higgins
Mr. Gus M. Bilirakis
Mr. Paul C. Broun
Mrs. Candice S. Miller
Mr. Tim Walberg
Mr. Chip Cravaack
Mr. Patrick Meehan
Mr. Benjamin Quayle
Mr. E. Scott Rigell
Mr. Billy Long
Mr. Jeff Duncan
Mr. Tom Marino
Mr. Blake Farenthold
Mr. Mo Brooks
Ms. Sheila Jackson Lee
Mr. Henry Cuellar
Ms. Laura Richardson
Ms. Jackie Speier
Mr. Cedric L. Richmond
Mr. Hansen Clarke
Mr. William R. Keating
Ms. Kathleen C. Hochul

Committee Oversight Findings

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

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. 901, the Chemical Facility Anti-Terrorism Authorization
Act of 2011, would result in no new or increased budget
authority, entitlement authority, or tax expenditures or
revenues.

Congressional Budget Office 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.

U.S. Congress,
Congressional Budget Office,
Washington, DC, July 6, 2011.
Hon. Peter T. King,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 901, the Chemical
Facility Anti-Terrorism Standards Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jason
Wheelock.
Sincerely,
Robert A. Sunshine,
(For Douglas W. Elmendorf, Director).
Enclosure.

H.R. 901--Chemical Facility Anti-Terrorism Standards Act of 2011

H.R. 901 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. 901 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. 901 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. 901 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 to a terrorist incident and to prepare and implement
facility security plans would be mandates. 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).
On June 15, 2011, CBO transmitted a cost estimate for H.R.
908, the Full Implementation of the Chemical Facility Anti-
Terrorism Standards Act, as ordered reported by the House
Committee on Energy and Commerce on May 26, 2011. Both H.R. 901
and H.R. 908 would authorize nearly $90 million for CFATS, and
CBO estimates that spending under the two bills would be the
same. In addition, CBO determined that the bill would extend
the same mandates as H.R. 901.
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.

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. 901 contains the following
general performance goals and objectives, including outcome
related goals and objectives authorized.
The performance goals and objectives of H.R. 901 are to
extend the Chemical Facility Anti-Terrorism standards authority
enacted under the FY 2007 Homeland Security Appropriations Act.

Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits

In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule
XXI.

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.

Preemption Clarification

In compliance with section 423 of the Congressional Budget
Act of 1974, requiring the report of any Committee on a bill or
joint resolution to include a statement on the extent to which
the bill or joint resolution is intended to preempt State,
local, or Tribal law, the Committee finds the following. While
the Committee believes H.R. 901, as reported, does not preempt
any State, local, or Tribal law--Section 2106 does allow for
preemption should such actual conflict exist.

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 provides that the bill may be cited as the
``Chemical Facility Anti-Terrorism Security Authorization Act
of 2011.''

Sec. 2. Chemical Facility Anti-Terrorism Security Regulations.

This section adds a new title, the ``Title XXI--Chemical
Facility Anti-Terrorism Security Regulations'' to the Homeland
Security Act of 2002 and includes the following provisions:

TITLE XXI--CHEMICAL FACILITY ANTI-TERRORISM SECURITY REGULATIONS

Sec. 2101. Chemical Facility Anti-Terrorism Security
Regulations.
This section requires the Secretary of Homeland Security to
maintain security regulations for high-risk chemical
facilities. These regulations must establish ``risk-based
performance standards'' and require facilities to prepare
Security Vulnerability Assessments (SVAs) that identify
facility security vulnerabilities, and develop and implement
Site Security Plans (SSPs). This section codifies the key
elements of the existing Chemical Facility Anti-Terrorism
Standards (CFATS) framework that should be maintained. The
Committee does not intend for the Department of Homeland
Security (DHS) to reissue existing regulations; but provides
the Department the flexibility to revise them within the
existing framework if changes are necessary.
Importantly, H.R. 901 requires risk-based performance
standards instead of a prescriptive approach, providing diverse
facilities with the appropriate discretion and flexibility to
design site-specific security measures. The Committee believes
that the security measures taken to comply with the risk-based
performance standards may differ from facility to facility.
Under this section, facilities may select a combination of
security measures tailored to their unique circumstances that
together meet the security performance requirements. While the
Department cannot dictate that a particular security measure be
used, it sets the performance standards. Upon request, the
Secretary is required to provide technical assistance to small
businesses developing SVAs and SSPs.
The Committee is aware that the Department recently revised
the tiering assignments for approximately ten percent of the
facilities covered under CFATS due to an error in the risk
assessment modeling. Recognizing modeling processes can often
be complicated and fall victim to a variety of errors,
especially in the context of terrorism where there is very
little historical data, as compared to natural catastrophes,
the Committee believes it is imperative for the CFATS risk
assessment model to be validated--including inputs, processes,
and outputs--in order to increase its credibility and minimize
future errors. The Committee directs the Department to report
on how it has validated, or plans to validate, the model and
prevent future errors of a similar nature. Additionally, the
Committee believes that there should be internal controls to
detect anomalies based on human or other error in a timely
manner.
After final regulations are published, the Secretary must
approve or disapprove SVAs and SSPs within 180 days of receipt,
to the extent practicable, and notify the facility of the
outcome. If an SVA or SSP is disapproved, the Secretary has 14
days to provide the facility a written explanation for the
disapproval and a date by which the facility is required to
revise the SVA or SSP. The Committee expects DHS to make a good
faith effort to provide a timely review of the assessments and
plans, and notify facilities within the designated timeframe.
However, the Committee recognizes that chemical facilities
regulated under this Title are very diverse and the content and
quality of the SVAs and SSPs may vary greatly. Additional time
may be warranted for certain facilities in order to reach a
successful outcome. The Committee expects DHS to continue
working collaboratively with the facilities to provide
appropriate guidance and ensure their SVAs and SSPs meet DHS
security requirements. This section also requires the Secretary
to submit an annual report to Congress indicating the number of
instances the 180 day notification requirement was not met.
This section allows the Secretary to accept, in whole or in
part, an alternate security program, prepared by the facility
for another reason, such as complying with another law or an
industry-wide security program, as long as it provides an
equivalent level of security by meeting the regulatory
requirements issued or maintained by this title.
Under this section, the Secretary is also required to
describe, in any personnel surety regulations, the information
that will be required from a facility for acceptance of
alternate security background checks. The Committee intends to
promote comparability and reciprocity across credentialing and
screening programs and believes DHS should enable chemical
facilities to leverage other existing background check
programs, such as the Transportation Worker Identification
Credential (TWIC) or private sector programs, as part of the
identity, legal authorization to work, and criminal history
background checks they perform to meet personnel surety
requirements of this title. The Committee does not intend for
DHS to require TWICs for persons accessing chemical facilities
not regulated under the Marine Transportation Security Act
(MTSA), nor that such facilities be equipped with TWIC readers.
Instead, facilities should have the option to recognize TWIC or
other background check programs--so long as these programs are
verified as described below.
The Committee recognizes that background checks to identify
individuals with terrorist ties is an inherently governmental
function and several existing Federal government programs
achieve this by vetting individuals against the Terrorist
Screening Database (TSDB). To limit duplicative efforts, the
Committee intends for DHS to share and reuse results from other
governmental programs that conduct equivalent vetting against
the TSDB, such as the TWIC program. The Committee believes
that, for security purposes, in order for DHS to reuse such
vetting results to meet any personnel surety requirements
issued pursuant to this title, DHS may need to verify the
active enrollment in the accepted alternate security background
check. The Committee intends to provide DHS the flexibility
needed to leverage alternate security background checks, such
as the TWIC program, as they fully mature. The Committee
expects DHS to ensure the process is minimally burdensome on
facilities and individuals while also identifying security
gaps. The Committee supports the activities of the working
group composed of representatives from the Transportation
Security Administration, the DHS Screening Coordination Office,
the National Protection and Programs Directorate, the U.S.
Coast Guard, and the DHS Office of General Counsel with the aim
of aligning relevant personnel surety programs and urges the
working group to receive feedback from the regulated
communities and report back to the Committee on its
recommendations.
This section specifies that the regulations maintained by
this title do not apply to any facility owned or operated by
the Departments of Defense or Energy; any facility regulated by
the Nuclear Regulatory Commission (NRC); any facility regulated
under the MTSA; and facilities defined as a water system or
wastewater treatment works.
While this section upholds the exemption from CFATS for
facilities subject to regulation by the NRC, the Committee
intends for this exemption to apply only to facilities where
the NRC already imposes significant security requirements and
regulates the safety and security of most of the facility. The
Committee does not intend for the NRC exemption to apply to
facilities that house just a few small radioactive sources or
to portions of facilities not subject to NRC security
requirements. The Committee supports the formal establishment
of the memorandum of understanding between DHS and the NRC to
help define the types of facilities that are wholly or
partially exempt from CFATS because of NRC regulatory
authority, and to establish processes for identifying those
facilities. The Committee also urges completion of the NRC
study comparing CFATS security standards to security measures
at NRC-regulated facilities and encourages the NRC to address
any gaps in NRC requirements, if any are found.
This section also preserves the exemption from CFATS for
MTSA-regulated facilities. The Committee is aware that some
port facilities have chemicals of interest onsite above
threshold quantities. The Committee intends to ensure that
high-risk chemical facilities that are potentially subject to
both CFATS and MTSA are not saddled with duplicative or
conflicting requirements and that high-risk chemical facilities
with commensurate risk are subject to equivalent and
appropriate security requirements, regardless of the regulatory
regime under which they are captured. While there are
similarities between the programs, there are significant
differences between the requirements of each regime. The
Committee encourages the U.S. Coast Guard and the National
Protection and Programs Directorate to maintain an active and
thorough effort to examine both regulatory regimes, identify
opportunities for harmonization, and take appropriate action to
close any security gaps. The Committee recognizes the formal
establishment of the DHS CFATS-MTSA Working Group that is
conducting an ongoing, full regulatory review of the two
security regimes and has taken initial positive steps to
coordinate activities. The Committee urges this work to
continue in order to inform recommendations for any statutory
changes that might be needed to MTSA or CFATS legislative
authorities.
This section maintains the exemption from CFATS for
drinking water and wastewater treatment facilities. The
Committee recognizes that the water sector is prioritized among
the nation's critical infrastructures--so vital that damage to,
or destruction of, drinking water or wastewater treatment
utilities by terrorist attack could have a debilitating effect
on homeland security and public health. The Committee notes
that terrorist attacks on these facilities could come in many
forms, including: physical attacks (such as the release of
toxic gaseous chemicals); biological or chemical contamination;
and cyber attacks. Assessing and addressing the vulnerabilities
of these facilities to terrorist attack should form the basis
of any strategy to secure this critical infrastructure and
reduce the risks to these facilities, with chemical security as
an essential element.
Many facilities have made security improvements since the
terrorist attacks of September 11, 2001, but the Committee
recognizes there are still no mandatory Federal standards that
govern the security of water infrastructure. While DHS'
engagement with the water sector has grown given its
responsibilities to secure the Nation's critical
infrastructure, the Environmental Protection Agency (EPA)
remains the lead Federal agency for protecting drinking water
and wastewater utility systems. However, EPA has not been given
authority by Congress to establish a risk-informed, performance
based security program like CFATS for the protection of the
water sector and, with respect to wastewater treatment
facilities, no federal agency has been conferred the authority
to review security plans, set security standards, or require
implementation of security measures.
While the Committee did not include language to govern
chemical security at drinking water and wastewater treatment
facilities in H.R. 901 due to the imminent expiration of the
CFATS authority and the foremost need to ensure the CFATS
regulations remain in place to allow the program to mature and
continue uninterrupted, the Committee acknowledges a Federal
role in promoting security at drinking water and wastewater
treatment facilities. Therefore, the Committee is committed to
working with the Administration, appropriate authorizing
committees, and other stakeholders to address this significant
security concern. The Committee intends to continue its
examination of chemical security gaps with a view to
identifying solutions that improve security and minimize the
risks to homeland security, public health, and the economy,
while reducing duplication and regulatory burdens.
Specifically, the Committee intends to investigate: how
chemical security will fit into the broader context of
legislative efforts to comprehensively improve security at
drinking water and wastewater treatment facilities without
creating the potential for duplication; the distributed and
diverse nature of ownership (Federal, non-Federal government,
and private) of these facilities; and the need for greater
clarity with regard to the roles and responsibilities of DHS
and EPA.
The Committee encourages the Department to work with EPA in
addressing ongoing security gaps at drinking water and
wastewater treatment facilities. Furthermore, the Committee
encourages the Department to report back to the Committee on
the scope and nature of these security gaps, including
potential approaches to enhance chemical security, and any
recommended changes in legislative authorities that are needed.
Sec. 2102. Information Protection.
This section requires information developed under CFATS to
be protected, from unauthorized public disclosure, consistent
with protections under the MTSA. In administrative and judicial
proceedings, CFATS-related information will be treated as if
classified. In addition, this section allows for information
sharing with appropriate State and local government officials,
but only as long as the protected information cannot be
disclosed under any State or local law, and also specifies that
DHS cannot withhold such information from Congress. The
Committee believes that the Department may continue to use the
existing ``Chemical-Terrorism Vulnerability Information''
regime for safeguarding protected information as it was
designed to have minimal burden on regulated facilities while
achieving real protection of information that might be useful
to terrorists. The Committee does not intend to preclude
efforts by the Department to align this information protection
regime with others, as long as the requirements of this title
are still met and the security of protected information is not
compromised in doing so.
Sec. 2103. Enforcement.
This section requires the Secretary to audit and inspect
facilities to determine compliance. If a facility is found not
to be in compliance with this Title, the Secretary must
communicate in writing the deficiencies in the vulnerability
assessment and site security plan, provide an opportunity for
consultation, and issue an order requiring compliance by an
appropriate date (See notification requirements in section
2101). If a facility violates a written order, it will be
liable for a civil penalty. If a facility continues to be in
non-compliance, the Secretary may issue an order to cease
operations until the owner or operator of the facility
complies. This section also prohibits third-party rights of
action against a facility to enforce this Title.
Sec. 2104. Jobs Impact.
This section requires the Secretary to submit an annual
report to Congress that provides an estimate of the potential
private sector jobs created or lost as a result of the chemical
security regulations maintained by this Title and any feedback
received from chemical facilities on changes to the regulations
they believe might spur job creation or stem job loss. The
Committee intends this report to provide additional context to
inform discussions on chemical security regulations going
forward. The Committee believes the CFATS regulations need to
be viewed not only in the context of their role in ensuring the
security of the Homeland against terrorist attacks, but also in
the context of the economy in general and job creation
specifically. The Committee intends for the Department to
strike the appropriate balance between securing the Nation
while preserving this vital sector of the economy, and ensure
the overall benefits of the chemical security regulations
outweigh their costs.
Sec. 2105. Scope.
This section specifies that this Title is not intended to
affect or modify other Federal laws that govern chemical
manufacturing, transportation, use, sale, disposal, etc.
Sec. 2106. Preemption.
This section allows for regulations, requirements, or
standards maintained under this Title to preempt State or local
government regulations, requirements or standards only when
there is an ``actual conflict'' between them.
Sec. 2107. Termination.
This section establishes a seven-year sunset of the
Department's authority to maintain security regulations for
high-risk chemical facilities. The Committee intends to provide
DHS and chemical facilities with the long-term certainty and
stability needed to complete a full cycle of compliance, assess
the program's effectiveness at reducing terrorism risks, and
make informed improvements. The Committee believes the current
piecemeal approach of short-term extensions of the CFATS
authority creates regulatory uncertainty for DHS and chemical
facilities that runs counter to the Committee's intent--to
ensure that investments made today are optimized to improve our
Nation's security for tomorrow and the long-term. The seven-
year sunset does not preclude the Committee from conducting on-
going CFATS oversight or developing additional legislation as
necessary.
Sec. 2108. Authorization of Appropriations.
This section authorizes $89.9 million for each fiscal year
2012 through 2018 to carry out the requirements of this Act.

Sec. 3. Conforming Repeal.

This section strikes Section 550 of the Department of
Homeland Security Appropriations Act, 2007 (Pub. L. 109-295) on
the date of enactment of this Act.

Sec. 4. Harmonization.

This section requires the Secretary to submit to Congress a
report within six months after enactment on the extent to which
CFATS security requirements have been harmonized with the
security requirements imposed on ports pursuant to the MTSA.
The Department shall include any future plans for harmonization
and a timeline for implementation of these plans. The Committee
supports the Department's efforts to harmonize the two security
regimes in order to limit duplicative requirements and address
any security gaps. The Committee intends for the report to aid
in identifying whether legislative changes to the MTSA or CFATS
authorities are needed to achieve appropriate harmonization or
whether sufficient changes can be made within the existing
regulatory frameworks.

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:

Sec. 1. Short title; table of contents.
* * * * * * *

TITLE XXI--CHEMICAL FACILITY ANTI-TERRORISM SECURITY REGULATIONS

Sec. 2101. Chemical facility anti-terrorism security regulations.
Sec. 2102. Information protection.
Sec. 2103. Enforcement.
Sec. 2104. Jobs Impact.
Sec. 2105. Scope.
Sec. 2106. Preemption.
Sec. 2107. Termination.
Sec. 2108. Authorization of appropriations.
* * * * * * *

TITLE XXI--CHEMICAL FACILITY ANTI-TERRORISM SECURITY REGULATIONS

SEC. 2101. CHEMICAL FACILITY ANTI-TERRORISM SECURITY REGULATIONS.

(a) In General.--The Secretary shall maintain, and revise as
necessary, regulations to protect chemical facilities against
terrorism and potential terrorist attacks. Such regulations
shall include--
(1) risk-based performance standards for chemical
facility security;
(2) requirements for chemical facility security
vulnerability assessments; and
(3) requirements for the development and
implementation of chemical facility site security
plans.
(b) Facilities Regulated.--The regulations required by
subsection (a) shall apply to any chemical facility that the
Secretary determines presents a high level of security risk
with respect to acts of terrorism, except that the Secretary
may not apply such regulations to any of the following:
(1) Any facility owned or operated by the Department
of Defense.
(2) Any facility owned or operated by the Department
of Energy.
(3) Any facility subject to regulation by the Nuclear
Regulatory Commission.
(4) Any facility regulated under chapter 701 of title
46, United States Code.
(5) A public water system, as such term is defined by
section 1401(4) of the Safe Drinking Water Act (42
U.S.C. 300f(4)).
(6) A treatment works, as such term is defined by
section 212(2) of the Federal Water Pollution Control
Act (33 U.S.C. 1292(2)).
(c) Security Measures.--The regulations required by
subsection (a) shall provide that each such facility, in
developing and implementing site security plans, be permitted
to select layered security measures that, in combination,
appropriately address the vulnerability assessment and the
risk-based performance standards for security for the facility.
(d) Review.--
(1) In general.--The Secretary shall review and
approve or disapprove each vulnerability assessment and
site security plan required under this title or by the
regulations required by subsection (a).
(2) Standards for disapproval.--The Secretary may not
disapprove such a site security plan based on the
presence or absence of a particular security measure,
but the Secretary may disapprove such a site security
plan if the plan fails to satisfy the risk-based
performance standards established by the Secretary.
(3) Deadline for notification.--Beginning after the
Secretary publishes final regulations to implement this
section, not later than 180 days, to the greatest
extent practicable, after the date on which the
Secretary receives a security vulnerability assessment
or site security plan under this title, the Secretary
shall review and approve or disapprove such assessment
or plan and notify the covered chemical facility of
such approval or disapproval.
(4) 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 not later than 14 days after 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.
(5) Reporting.--The Secretary shall submit to the
Committee on Homeland Security of the House of
Representatives and the Committee on Homeland Security
and Government Affairs of the Senate, on an annual
basis, information on the number of instances during
the year covered by the report where the Secretary
determined that the 180 day notification requirement
under paragraph (3) was impracticable.
(e) Alternative Security Programs.--The Secretary may approve
any alternative security program established by a private
sector entity or Federal, State, or local authority, or under
another applicable law, if the Secretary determines that the
requirements of such program meets the requirements of this
title and any regulations issued or maintained pursuant to this
title.
(f) Security Background Checks.--In any personnel surety
regulation issued by the Secretary pursuant to subsection (a),
the Secretary shall include provisions on how an owner or
operator of a covered chemical facility can meet, in whole or
in part, the requirements set forth in such regulations by
submitting--
(1) information on an employee or individual holding
a valid transportation security card issued under
section 70105 of title 46, United States Code;
(2) an alternate security background check conducted
by a private sector entity, including the owner and
operator of a covered chemical facility and a non-
profit personnel surety accrediting organization; and
(3) an alternate security background check conducted
under another applicable law.
(g) Technical Assistance to Small Businesses.--The Secretary
shall provide technical assistance to any owner or operator of
a covered chemical facility who requests such assistance to
prepare a security vulnerability assessment or site security
plan required under this title or by the regulations required
by subsection (a), if the covered chemical facility is a small
business concern, under the meaning given that term in section
3 of the Small Business Act (15 U.S.C. 632).

SEC. 2102. INFORMATION PROTECTION.

(a) In General.--Notwithstanding any other provision of law,
information developed pursuant to this title, or pursuant to
the regulations required by section 2101(a), 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.
(b) Sharing of Information.--
(1) State and local governments.--This section does
not prohibit the sharing of such information, as the
Secretary determines appropriate, with State and local
government officials possessing the appropriate
security clearances, including emergency response
providers, for the purpose of carrying out this title,
as long as such information may not be disclosed
pursuant to any State or local law.
(2) Congress.--Nothing in this title shall permit or
authorize the withholding of information from Congress
or any committee or subcommittee thereof.
(c) Administrative and Judicial Proceedings.--In any
proceeding to enforce this title, vulnerability assessments,
site security plans, and other information submitted to or
obtained by the Secretary under this title, and related
vulnerability or security information, shall be treated as if
the information were classified material.

SEC. 2103. ENFORCEMENT.

(a) In General.--The Secretary shall audit and inspect
chemical facilities subject to regulation under this title for
the purposes of determining compliance with this title and the
regulations required by section 2101(a).
(b) Orders for Compliance.--If the Secretary determines that
a chemical facility is not in compliance with this title or the
regulations required by section 2101(a), the Secretary shall
provide the owner or operator of the facility with written
notification (including a clear explanation of deficiencies in
the vulnerability assessment and site security plan) and an
opportunity for consultation, and issue an order to comply by
such date as the Secretary determines to be appropriate under
the circumstances.
(c) Civil Penalties.--Any person who violates an order issued
under this title shall be liable for a civil penalty under
section 70119(a) of title 46, United States Code.
(d) Order To Cease Operation.--If the owner or operator of a
chemical facility subject to regulation under this title
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.
(e) Exception.--Nothing in this title 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 title.

SEC. 2104. JOBS IMPACT.

Not later than one year after the date of the enactment of
this title, and annually thereafter, the Secretary shall submit
to the Committee on Homeland Security of the House of
Representatives and the Committee on Homeland Security and
Governmental Affairs of the Senate a report that, at a minimum,
includes--
(1) an estimate of the potential jobs created or lost
within the private sector as a result of the
regulations required under section 2101 of this title;
and
(2) information on feedback received from owners and
operators of covered chemical facilities about how the
regulations required under section 2101 of this title
could be revised to spur potential job creation or stem
job losses.

SEC. 2105. SCOPE.

Nothing in this title 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.

SEC. 2106. PREEMPTION.

This title shall not preclude or deny any right of any State
or political subdivision thereof to adopt or enforce any
regulation, requirement, or standard of performance with
respect to chemical facility security that is more stringent
than a regulation, requirement, or standard of performance
required under this title, or otherwise impair any right or
jurisdiction of any State with respect to chemical facilities
within that State, unless there is an actual conflict between
this title and the law of that State.

SEC. 2107. TERMINATION.

The authority provided by this title shall terminate on
September 30, 2018.

SEC. 2108. AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated to the Secretary to
carry out this title $89,928,000 for each of fiscal years 2012
through 2018.
----------

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 on October 4, 2011.
[(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 any
State or political subdivision thereof to adopt or enforce any
regulation, requirement, or standard of performance with
respect to chemical facility security that is more stringent
than a regulation, requirement, or standard of performance
issued under this section, or otherwise impair any right or
jurisdiction of any State with respect to chemical facilities
within that State, unless there is an actual conflict between
this section and the law of that State.]

* * * * * * *

ADDITIONAL VIEWS

We, the undersigned Democratic Members of the Committee on
Homeland Security, support the reauthorization of the Chemical
Facility Anti-Terrorism Standards Act program, as administered
by the Department of Homeland Security, and submit the
following additional views.

BACKGROUND

As discussed in the report, with the enactment of section
550 of the Department of Homeland Security (DHS) Appropriations
Act, 2007 (P.L. 109-295), Congress granted DHS, for the first
time, authority to issue regulations relating to the security
of the Nation's chemical sector. Section 550, however,
expressly exempted certain facilities from the authorized
Chemical Facility Anti-Terrorism Standards (CFATS) regulations,
which were issued as interim final regulations on April 4,
2007. We would note that since enactment of the 2007 DHS
Appropriations Act, the following categories of facilities have
been explicitly exempted from the CFATS regulation: facilities
that are regulated by the U.S. Coast Guard pursuant to the
Maritime Transportation Security Act (MTSA); drinking water and
wastewater treatment facilities (as defined by section 1401 of
the Safe Drinking Water Act and section 212 of the Federal
Water Pollution Control Act (commonly referred to as the
``Clean Water Act'', respectively)); facilities owned or
operated by the Departments of Defense and Energy; and certain
facilities subject to regulation by the Nuclear Regulatory
Commission (NRC).
Section 550 of the 2007 DHS Appropriations Act was enacted
as a short-term grant of authority to allow DHS to begin moving
forward with the design and publication of regulations for the
chemical sector while congressional authorizers worked out
policy and jurisdictional differences to pass comprehensive
CFATS authorization legislation. For five years, enactment of
comprehensive CFATS authorization legislation has been elusive.
In the absence of a comprehensive CFATS bill, Congress has
repeatedly extended the section 550 authority in appropriations
bills. DHS' authority to regulate security in the chemical
sector is scheduled to expire at the end of Fiscal Year (FY)
2011 unless legislation to extend authority is enacted.
Committee Democrats have a longstanding record of
supporting this novel regulation which, in recognition of the
diversity of the chemical sector, sets forth a series of risk-
based, performance-based standards that are to be met by
facilities that hold threshold quantities of chemicals that
would be of interest to terrorists. We would note that in the
110th Congress, then-Chairman Thompson was able to work
effectively with the Committees on Energy and Commerce (then-
Chairman Henry Waxman (D-CA)) and Transportation and
Infrastructure (then-Chairman James Oberstar (D-MN)) to
introduce comprehensive chemical security legislation. H.R.
2868, the ``Chemical and Water Security Act of 2009,'' was
approved by the House on November 6, 2009 by a vote of 230 to
193. One of the key areas of distinctions between H.R. 2868 and
prior attempts at enacting comprehensive CFATS legislation was
with regards to the regulation of drinking water and wastewater
facilities for security. Whereas the 109th and 110th Congress
bills (H.R. 5695 and H.R. 5577 respectively) granted DHS
regulatory authority over these facilities, H.R. 2868 granted
regulatory authority for security to the Environmental
Protection Agency (EPA), the existing regulator for the safety
of drinking water and wastewater facilities. Subsequently,
witnesses representing DHS and EPA testified in support of the
regulatory approach in H.R. 2868.
This Congress, Cybersecurity, Infrastructure Protection,
and Security Technologies (CIPST) Subcommittee Chairman Rep.
Dan Lungren (R-CA) introduced H.R. 901, a bill largely modeled
after the language carried in the 2007 DHS Appropriations Act.
We would note that with the exception of H.R. 901, each
comprehensive CFATS bill advanced by the Committee since 2006
has included provisions to close the water and wastewater
security gap.

FULL COMMITTEE CONSIDERATION OF H.R. 901

On Wednesday, June 22, 2011, at the Full Committee mark up
of H.R. 901, Democratic Members of the Committee on Homeland
Security submitted twelve amendments to improve the underlying
bill.
Committee Ranking Member Bennie G. Thompson (D-MS) offered
an amendment in the nature of a substitute (Thompson
substitute) that would have replaced the measure under
consideration with a comprehensive authorization of the CFATS
program. The Thompson Substitute was based on H.R. 2868, the
only freestanding CFATS authorization bill to have been
approved by the House. H.R. 2868, approved by the 111th
Congress by a vote of 230 to 193, was the result of Committee
oversight, years of bipartisan discussions, and extensive
engagement of facility operators and other effected
stakeholders. Like H.R. 2868, the Thompson Substitute sought to
codify and enhance large sections of CFATS risk-based,
performance-based regulation that has gained acceptance in
Congress and the regulated community since 2007. Further, the
Thompson Substitute also sought to leverage a recognized ``best
practice'' in the chemical sector to ``reduce the consequences
of a terrorist attack'' for facilities and their surrounding
communities by conducting assessments as part of their Security
Vulnerability Assessments. The Committee has received testimony
that facilities which voluntarily perform these assessments,
sometimes called ``inherently safer technology'' or ``IST''
assessments, often discover that reducing risk is not only good
for homeland security but the business' operations.
Additionally, the amendment included provisions to protect
whistleblowers, enhance worker security training, and allow
citizens to bring actions against DHS in the event that DHS
fails to enforce this security law. During consideration of
this amendment, Committee Ranking Member Thompson argued that
this substitute offered more predictability and protections to
the regulated community than the underlying measure insofar as
it sets forth, with specificity, timelines, notification, and
redress for the facilities. This amendment was defeated by a
vote of 12 to 18.
We are pleased that, for the first time in the 112th
Congress, amendments offered by Committee Democrats were
accepted. Specifically, the following five amendments were
accepted:
An amendment, authored by Rep. Loretta Sanchez (D-
CA), sought to provide greater transparency and predictability
to owners and operators of regulated chemical facilities.
Specifically, it required DHS, to the greatest extent
practicable, to review and issue an approval or disapproval for
any Security Vulnerability Assessment or Site Security Plan
submitted by a facility operator within 180 days of receiving
it. In the event that DHS disapproves a Security Vulnerability
Assessment or Site Security Plan, the Department would be
required to provide a written notification that, among other
things, sets forth the deficiencies in the submission, not
later than 14 days after the decision is made. To foster close
adherence to these requirements, the amendment required the
Department to report to Congress, on an annual basis, on the
specific circumstances where it found that to meet the 180-day
requirement would be impracticable. We would note that, at the
time of the mark up, the Department had not approved a single
Site Security Plan submitted by a regulated facility. This
amendment was approved by voice vote.
Two amendments, offered en bloc by Rep. Sheila
Jackson Lee (D-TX), sought to foster a streamlining of chemical
security regulatory activity at DHS and the leveraging of
security enhancements by regulated facilities. The first
amendment required the Secretary of Homeland Security to report
on the progress of efforts to harmonize the CFATS program with
the Maritime Security Transportation Act (MTSA) program, as
administered by Coast Guard. The second amendment directed DHS,
in any CFATS rule governing personnel surety, to set forth how
a facility can meet the requirements, in whole or in part, by
submitting: (1) information on employees with valid
Transportation Worker Identification Credentials; (2)
information on compliance with an alternate security background
check, including those undertaken by a non-profit personnel
surety accrediting organization; and (3) information on
compliance with a personnel surety requirement under another
law. Both amendments are predicated on the view that, wherever
possible, facilities should not be subjected to redundant or
even conflicting requirements. We believe that the second
amendment, in particular, has the potential of resulting in a
savings of time and money for facility operators and their
workers. These amendments were approved by voice vote.
By a recorded vote of 28 to 2, the Committee
approved an amendment, authored by Rep. Danny K. Davis (D-IL),
that required DHS to report to Congress within one year of
enactment of this measure and annually thereafter on: (1) the
estimated impact on employment of the CFATS regulations; and
(2) any information from regulated facilities on how the CFATS
regulation could be revised to foster job growth or prevent job
losses. As the national unemployment rate remains stubbornly
high, we believe that it is important that DHS be aware of what
impact the implementation of this regulation could have on the
workers and the operations of the regulated facilities.
An amendment, offered by Rep. Kathleen Hochul (D-
NY), required DHS to provide technical assistance to any
facility that qualifies as a small business concern under the
Small Business Act and requests such assistance to meet the
requirements of this novel regulatory program. This amendment
acknowledges the fact that not all chemical facilities have the
in-house resources or expertise to complete a Security
Vulnerability Assessment or Site Security Plan. It also
recognizes that producing a SecurityVulnerability Assessment
and Site Security Plan is often a complex and costly endeavor. We
believe that small businesses, as the engine of our national economy,
should not be forced to choose between hiring expensive consultants or
adding to their workforce. This amendment was approved by a vote of 29
to 1.
Committee Democrats offered six other amendments at the
Full Committee mark up. We are disappointed that none of those
amendments, as discussed herein, were accepted:
CIPST Subcommittee Ranking Member Clarke (D-NY)
offered two amendments to shorten the length of authorization
for the CFATS program from seven years. The first amendment
would have shortened the authorization period from 2018 to
2013; it was defeated by voice vote. The second amendment would
have shortened the authorization period from 2018 to 2016; it
was rejected by a vote of 11 to 18. At the mark up, we
expressed the view that it would be imprudent to authorize the
CFATS program for seven years when the program has not been
fully implemented, the inspector workforce is not fully in
place, and not even one facility has received final approval
from DHS on its Site Security Plan. While we commend the
Department for taking swift action to establish the program, we
recognize that the CFATS program is not yet mature and, as
such, DHS has experienced some missteps.\1\ We believe that the
establishment of a regular rhythm of reauthorization is
critical to the program's success. Through such a process,
Congress can effectuate its oversight findings and adjust
programmatic resources, as needed. We would also note that both
amendments would have significantly lowered the total cost of
the legislation.
---------------------------------------------------------------------------
\1\For instance, just prior to the June 22nd mark up, the Committee
was informed by DHS that anomalies surrounding the assessment tool used
for designating facilities on risk-based tiers had been detected.
Subsequently, DHS reevaluated about 10% of the regulated population and
determined, ultimately, that all the effected facilities were in proper
tiers, would be placed in a lower tier, or, in the case of roughly 100
facilities, were found to have insufficient risk to be regulated under
the program. Previously, DHS determined that it had provided wages to a
number of CFATS inspectors, deployed around the Nation, at an incorrect
rate.
---------------------------------------------------------------------------
Committee Ranking Member Thompson offered an
amendment that would have eliminated most of the exemptions
established under section 550 of the 2007 DHS Appropriations
Act. In the case of drinking water and wastewater facilities,
the EPA would be responsible for establishing a parallel
security program to DHS's CFATS program, and, in the case of
facilities regulated by the Nuclear Regulatory Commission and
Coast Guard, the responsibility for issuing parallel security
regulations would be delegated to the Nuclear Regulatory
Commission and the Coast Guard, respectively. This amendment,
which would have addressed the water and wastewater security
gap and brought other at-risk facilities under parallel
security systems, was rejected by a vote of 9 to 15.
Emergency Preparedness, Response, and
Communications (EPRC) Subcommittee Ranking Member Laura
Richardson (D-CA) offered an amendment that would have directed
DHS to establish a process for whisteblowers at chemical
facilities to keep their identities confidential. It would have
prohibited chemical facility owners and operators from
retaliating against an employee who discloses violations of the
CFATS regulations, testifies before the government, or refuses
to participate in activities they reasonably believe violate
the law, after notifying their employer. It also outlined a
procedure for whisteblowers to file a complaint if they allege
they have experienced discrimination based upon their
whistleblower activities. We believe that the men and women who
work in the chemical sector have special knowledge which is
critical to the identification of security vulnerabilities
within their facilities. We believe that it is imperative
employees are protected, should they report violations or
vulnerabilities through appropriate channels. This amendment
was rejected by a vote of 11 to 16.
CIPST Subcommittee Ranking Member Clarke (D-NY)
offered an amendment that would have authorized the Office of
Chemical Facility Inspections. It also included specifications
on the qualifications and the selection process for this
program office's director. Every CFATS authorization bill
advanced by the Committee since 2006 has specifically
authorized this office to ensure that the program could be
managed effectively and efficiently. We believe this amendment
would have enhanced this Committee's oversight capabilities and
accountability for this program office; we would note that this
program office has been in operation since the 2007 DHS
Appropriation Act and is referred to as ``Infrastructure
Security Compliance Division.'' We recognize that the CFATS
program cannot run itself and is in need of a standing program
office to provide day-to-day administrative leadership and
resources to implement this novel program. This amendment was
rejected by a vote of 11 to 18.
Rep. Hansen Clarke (D-MI) authored three
amendments to improve the underlying bill. The first amendment
directed DHS to establish personnel surety regulations for
facilities that provide worker protections. Specifically, the
amendment set forth the scope of the background check and
directed DHS to require facilities to establish redress and
reconsideration processes for employees who are subject to
adverse employment actions, as a result of a CFATS-required
background check. The amendment also sought to restrict the use
and maintenance of information gathered in these background
investigations. This amendment was rejected by a vote of 12 to
18.
The second amendment offered by Rep. Clarke (D-MI)
would have directed the President to delegate to the EPA the
authority to issue CFATS regulations for drinking water and
wastewater facilities and directed the EPA to provide technical
assistance to any affected facilities. We recognize that many
water and wastewater facilities are owned and operated by
public authorities and, therefore, they may have limited
resources to comply with the CFATS regulation. The water and
wastewater security gap has been of major concern to DHS under
both the Bush and Obama Administrations. In fact, after
enactment of section 550, then-DHS Secretary Michael Chertoff
was among the first to acknowledge the water and wastewater
security gap when, speaking at the 2007 Chemical Sector
Security Summit, he stated ``[A]s comprehensive as we're trying
to be, there remains one gap in our system of regulation, and
that has to do with certain kinds of chemicals that are held at
water treatment plants and wastewater plants.''\2\ This
amendment was rejected by a vote of 11 to 19.
---------------------------------------------------------------------------
\2\Michael Chertoff, DHS Secretary, speaking before the 2007
Chemical Sector Security Summit, June 12, 2007 @ http://www.dhs.gov/
xnews/speeches/sp_1181830119723.shtm.
---------------------------------------------------------------------------
The third amendment offered by Rep. Clarke (D-MI)
would have directed DHS to consult with the EPA in establishing
chemical facilities anti-terrorism standards regulations on
various subjects, including which substances should be
designated as substances of concern, methods to reduce the
consequences of terrorist attacks and how to minimize paperwork
for overlapping issues. We believe that this amendment would
have helped foster greater collaboration between DHS and EPA,
in furtherance of a more secure Nation. This amendment was
rejected by a vote of 12 to 18.

SUBCOMMITTEE CONSIDERATION OF H.R. 901

On April 14, 2011, during consideration of H.R. 901 by the
CIPST Subcommittee, Committee Democrats offered three targeted
amendments to improve the underlying measure. All three were
rejected. They are as follows:
An amendment, offered by CIPST Subcommittee
Ranking Member Clarke (D-NY), to close the drinking water and
wastewater security gap created by the 2007 DHS Appropriations
Act and require that the regulatory authority over these
facilities be delegated to the EPA. We would note that at that
mark up, CIPST Subcommittee Chairman Lungren, after stating his
opposition to this amendment, explained that he remains
concerned that there may be security gaps with respect to the
water and wastewater sectors and pledged to hold specific
hearings on this security risk and, if necessary, work with
CIPST Subcommittee Ranking Member Clarke on future legislation
to address this matter.
An amendment, offered by EPRC Subcommittee Ranking
Member Richardson (D-CA), to require facilities deemed to be
highest risk to undertake product safety reviews, an industry
best practice according to testimony received by the Committee.
An amendment, offered by Rep. Cedric Richmond (D-
LA), to ensure that each facility that is required to undertake
a Security Vulnerability Assessment and Site Security Plan
includes employees in the development of these critical
documents. We believe that the participation of on-the-ground
employees will help make facility submissions more
comprehensive and responsive to the security risks at that
facility.
Bennie G. Thompson.
Loretta Sanchez.
Sheila Jackson Lee.
Henry Cuellar.
Yvette D. Clarke.
Laura Richardson.
Danny K. Davis.
Brian Higgins.
Jackie Speier.
Cedric L. Richmond.
Hansen Clarke.
William R. Keating.
Kathleen C. Hochul.