Text of the Chemical Facility Anti-Terrorism Act of 2008

The text of the bill below is as of Mar 11, 2008 (Introduced).

Source: GPO

I

110th CONGRESS

2d Session

H. R. 5577

IN THE HOUSE OF REPRESENTATIVES

March 11, 2008

(for himself, Ms. Jackson-Lee of Texas, Mr. Markey, Ms. Loretta Sanchez of California, Mr. Dicks, Ms. Harman, Mr. DeFazio, Mrs. Lowey, Ms. Norton, Ms. Zoe Lofgren of California, Mrs. Christensen, Mr. Etheridge, Mr. Langevin, Mr. Cuellar, Mr. Carney, Ms. Clarke, Mr. Al Green of Texas, Mr. Perlmutter, and Mr. Pascrell) introduced the following bill; which was referred to the Committee on Homeland Security, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

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

1.

Short title

This Act may be cited as the Chemical Facility Anti-Terrorism Act of 2008.

2.

Findings and purpose

(a)

Findings

Congress makes the following findings:

(1)

The Nation’s chemical sector represents a target that terrorists could exploit to cause consequences, including death, injury, or serious adverse effects to human health, the environment, critical infrastructure, national security, the national economy, and public welfare.

(2)

Chemical facilities that pose such potential consequences and that are vulnerable to terrorist attacks must be protected.

(3)

The Secretary of Homeland Security has statutory authority pursuant to section 550 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295) to regulate the security practices at chemical facilities that are at significant risk of being terrorist targets.

(4)

The Secretary of Homeland Security issued interim final regulations called the Chemical Facility Anti-Terrorism Standards (hereinafter referred to in this section as CFATS), which became effective on June 8, 2007.

(5)

Such regulations, which are in the process of being implemented by the Secretary, largely address the concerns of Congress with respect to chemical facility security.

(6)

However, under current law, the statutory authority of the Secretary of Homeland Security to regulate security practices at chemical facilities and the CFATS regulations will sunset in October of 2009.

(b)

Purpose

The purpose of this Act is to give permanent status to the CFATS regulations and to provide additional Congressional guidance for the future implementation of such regulations.

3.

Sense of Congress

(a)

Sense of Congress with respect to CFATS regulations

It is the sense of Congress that—

(1)

the Secretary of Homeland Security should develop and administer all requirements of this Act to extend and modify the regulations called the Chemical Facility Anti-Terrorism Standards (hereinafter referred to in this section as CFATS), as in effect on the date of the enactment of this Act; and

(2)

in carrying out this Act, the Secretary should use such rules, regulations, or tools developed for purposes of the CFATS regulations as the Secretary determines are appropriate, including the list of chemicals of concern under Appendix A and the Top Screen tool used to determine which facilities are covered facilities under such regulations.

(b)

Sense of Congress with respect to chemical security

It is the sense of Congress that—

(1)

the Secretary of Homeland Security should take a holistic approach to securing sources of chemicals against a terrorist attack, which should not only secure the physical facilities at which hazardous chemicals are stored or manufactured, but should also secure the supply chain of such chemicals; and

(2)

in keeping with the direction that Congress has previously issued to the Secretary to address various aspects of the supply of hazardous chemicals, the Secretary should expediently exercise the Secretary’s existing authority to ensure that by focusing on chemicals at fixed-site facilities, risk is not transferred to other potential sources of such chemicals.

4.

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

(a)

In General

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

XXI

Regulation of Security Practices at Chemical Facilities

2101.

Definitions

In this title, the following definitions apply:

(1)

The term chemical facility means any facility—

(A)

at which a chemical is or may be used, stored, manufactured, processed or distributed; and

(B)

for which the Secretary requires the owner or operator of the chemical facility to submit information pursuant to section 2102(b)(2).

(2)

The term chemical facility security performance standard means a risk-based standard established by the Secretary to ensure or enhance the security of a chemical facility against a chemical facility terrorist incident that is designed to address—

(A)

restricting the area perimeter;

(B)

securing site assets;

(C)

screening and controlling access to the facility and to restricted areas within the facility by screening or inspecting individuals and vehicles as they enter, including—

(i)

measures to deter the unauthorized introduction of dangerous substances and devices that may facilitate a chemical facility terrorist incident or actions having serious negative consequences for the population surrounding the chemical facility; and

(ii)

measures implementing a regularly updated identification system that checks the identification of chemical facility personnel and other persons seeking access to the chemical facility and that discourages abuse through established disciplinary measures;

(D)

methods to deter, detect, and delay a chemical facility terrorist incident, creating sufficient time between detection of a chemical facility terrorist incident and the point at which the chemical facility terrorist incident becomes successful, including measures to—

(i)

deter vehicles from penetrating the chemical facility perimeter, gaining unauthorized access to restricted areas, or otherwise presenting a hazard to potentially critical targets;

(ii)

deter chemical facility terrorist incidents through visible, professional, well-maintained security measures and systems, including security personnel, detection systems, barriers and barricades, and hardened or reduced value targets;

(iii)

detect chemical facility terrorist incidents at early stages through counter surveillance, frustration of opportunity to observe potential targets, surveillance and sensing systems, and barriers and barricades; and

(iv)

delay a chemical facility terrorist incident for a sufficient period of time so as to allow appropriate response through on-site security response, barriers and barricades, hardened targets, and well-coordinated response planning;

(E)

securing and monitoring the shipping, receipt, and storage of a substance of concern for the chemical facility;

(F)

deterring theft or diversion of a substance of concern;

(G)

deterring insider sabotage;

(H)

deterring cyber sabotage, including by preventing unauthorized onsite or remote access to critical process controls, including supervisory control and data acquisition systems, distributed control systems, process control systems, industrial control systems, critical business systems, and other sensitive computerized systems;

(I)

developing an emergency plan to respond to chemical facility terrorist incidents with the guidance of the Secretary that includes, as appropriate, an early warning system for local emergency response providers and the community surrounding the facility, and exercising such plan internally and with the assistance of local law enforcement officials and emergency response providers to enhance the collective response to terrorism;

(J)

maintaining effective monitoring, communications, and warning systems, including—

(i)

measures designed to ensure that security systems and equipment are in good working order and inspected, tested, calibrated, and otherwise maintained;

(ii)

measures designed to regularly test security systems, note deficiencies, correct for detected deficiencies, and record results so that they are available for inspection by the Department; and

(iii)

measures to allow the chemical facility to promptly identify and respond to security system and equipment failures or malfunctions;

(K)

ensuring mandatory annual security training, exercises, and drills of chemical facility personnel;

(L)

performing personnel surety for individuals with access to restricted areas or critical assets by conducting appropriate background checks and ensuring appropriate credentials for unescorted visitors and chemical facility personnel, including permanent and part-time personnel, temporary personnel, and contract personnel, including—

(i)

measures designed to verify and validate identity;

(ii)

measures designed to check criminal history;

(iii)

measures designed to verify and validate legal authorization to work; and

(iv)

measures designed to identify people with terrorist ties;

(M)

escalating the level of protective measures for periods of elevated threat;

(N)

specific threats, vulnerabilities, or risks identified by the Secretary for that chemical facility;

(O)

reporting of significant security incidents to the Department and to appropriate local law enforcement officials;

(P)

identifying, investigating, reporting, and maintaining records of significant security incidents and suspicious activities in or near the site;

(Q)

establishing one or more officials and an organization responsible for security and for compliance with these standards;

(R)

maintaining appropriate records relating to the security of the facility;

(S)

assessing, as appropriate, or utilizing methods to reduce the consequences of a terrorist attack; or

(T)

any additional security performance standards the Secretary may specify.

(3)

The term chemical facility terrorist incident means an act or attempted act of terrorism committed at, near, or against a chemical facility, including—

(A)

the release of a substance of concern from a chemical facility into the surrounding area as a consequence of an act of terrorism;

(B)

the obtaining of a substance of concern by any person for the purpose of using the substance at a location other than the chemical facility in furtherance of an act of terrorism; or

(C)

the sabotage of a chemical facility or a substance of concern at a chemical facility in furtherance of an act of terrorism.

(4)

The term employee representative means a representative of the certified or recognized bargaining agent engaged in a collective bargaining relationship with a private or public owner or operator of a chemical facility.

(5)

The term covered individual means a permanent, temporary, full-time, or part-time employee of a covered chemical facility or an employee of an entity with which the covered chemical facility has entered into a contract who is performing responsibilities at the facility pursuant to the contract.

(6)

The term covered chemical facility means a chemical facility that the Secretary assigns to a risk-based tier under section 2102(c) that is required to submit a security vulnerability assessment and site security plan under section 2103.

(7)

The term environment has the meaning given the term in section 101 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. 9601).

(8)

The term owner or operator of a chemical facility means any of the following:

(A)

The person who owns a chemical facility.

(B)

The person who leases such a facility.

(C)

The person who operates such a facility.

(9)

The term release has the meaning given the term in section 101 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. 9601).

(10)

The term substance of concern means a chemical substance in quantity and form that is designated by the Secretary under section 2102(a) as a chemical substance that poses a risk of being used in furtherance of a chemical facility terrorist incident.

(11)

The term method to reduce the consequences of a terrorist attack includes—

(A)

input substitution;

(B)

catalyst or carrier substitution;

(C)

process redesign (including reuse or recycling of a substance of concern);

(D)

product reformulation;

(E)

procedure simplification;

(F)

technology modification;

(G)

use of less hazardous substances or benign substances;

(H)

use of smaller quantities of substances of concern;

(I)

reduction of hazardous pressures or temperatures;

(J)

reduction of the possibility and potential consequences of equipment failure and human error;

(K)

improvement of inventory control and chemical use efficiency; and

(L)

reduction or elimination of the storage, transportation, handling, disposal, and discharge of substances of concern.

2102.

Risk-based designation and ranking of chemical facilities

(a)

Substances of Concern

(1)

Designation by the secretary

The Secretary may designate any chemical substance as a substance of concern and establish and revise the threshold quantity for a substance of concern.

(2)

Matters for consideration

In designating a chemical substance or establishing or adjusting the threshold quantity for a chemical substance under paragraph (1), the Secretary shall consider the potential extent of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, national security, the national economy, and public welfare that would result from a chemical facility terrorist incident.

(b)

List of covered Chemical Facilities

(1)

Criteria for list of facilities

The Secretary shall maintain a list of covered chemical facilities that the Secretary determines are of sufficient security risk for inclusion on the list based on the following criteria:

(A)

The potential threat or likelihood that the chemical facility will be the target of a chemical facility terrorist incident.

(B)

The potential extent and likelihood of death, injury, or serious adverse effects to human health, the environment, critical infrastructure, national security, the national economy, and public welfare that could result from a chemical facility terrorist incident.

(C)

The proximity of the chemical facility to population centers.

(2)

Submission of information

The Secretary may require the submission of information with respect to the quantities of substances of concern that are used, stored, manufactured, processed, or distributed by any chemical facility to determine whether to designate a chemical facility as a covered chemical facility for purposes of this title.

(c)

Assignment of Chemical Facilities to Risk-Based Tiers

(1)

Assignment

The Secretary shall assign each covered chemical facility to one of at least four risk-based tiers established by the Secretary.

(2)

Provision of information

The Secretary may request, and the owner or operator of a covered chemical facility shall provide, any additional information beyond any information required to be submitted under subsection (b)(2) that is needed for the Secretary to assign the chemical facility to the appropriate tier under paragraph (1).

(3)

High-risk chemical facilities

At least one of the tiers established by the Secretary for the assignment of chemical facilities under this subsection shall be a tier designated for high-risk chemical facilities.

(4)

Authority to review

The Secretary shall periodically review the criteria under subsection (b)(1) and may, at any time, determine whether a chemical facility is a covered chemical facility or is no longer a covered chemical facility or change the tier assignment under paragraph (1) of any covered chemical facility.

(5)

Notification

Not later than 60 days after the date on which the Secretary determines that a chemical facility is a covered chemical facility or is no longer a covered chemical facility or changes the tier assignment under paragraph (1) of a covered chemical facility, the Secretary shall notify the owner or operator of that chemical facility of that determination or change together with the reason for the determination or change.

2103.

Security vulnerability assessments and site security plans

(a)

Security vulnerability assessment and site security plan required for covered chemical facilities

(1)

Requirement for security vulnerability assessment and site security plan

The Secretary shall—

(A)

establish standards, protocols, and procedures for security vulnerability assessments and site security plans to be required for covered chemical facilities;

(B)

provide to the owner or operator of each covered chemical facility—

(i)

the number of individuals at risk of death, injury, or severe adverse effects to human health as a result of a worst case chemical facility terrorist incident at the covered chemical facility;

(ii)

information related to the criticality of the covered chemical facility for purposes of assessing the degree to which the facility is critical to the economy or national security of the United States;

(iii)

the proximity or interrelationship of the covered chemical facility to other critical infrastructure, including any utility or infrastructure (including transportation) upon which the chemical facility relies to operate safely and securely; and

(iv)

recommended best practices for securing chemical facilities;

(C)

require the owner or operator of each such covered chemical facility to—

(i)

conduct an assessment of the vulnerability of the covered chemical facility to a chemical facility terrorist incident;

(ii)

prepare and implement a site security plan for that covered chemical facility that addresses the security vulnerability assessment and the risk-based chemical security performance standards under subsection (c); and

(iii)

include appropriate supervisory and non-supervisory employees of the covered chemical facility, and any employee representatives, as appropriate, in developing the security vulnerability assessment and site security plan required under this clause; and

(D)

set deadlines for the completion of security vulnerability assessments and site security plans.

(2)

Criteria

The Secretary shall ensure that the requirements under paragraph (1)—

(A)

are risk-based;

(B)

are performance-based; and

(C)

take into consideration—

(i)

the cost and technical feasibility of compliance by a covered chemical facility with the requirements under this title;

(ii)

the different quantities and forms of substances of concern stored, used, and handled at covered chemical facilities; and

(iii)

the criteria under section 2102(a)(2).

(b)

Minimum Requirements for High-Risk Chemical Facilities

(1)

Requirements for security vulnerability assessments

In the case of a covered chemical facility assigned to a high-risk tier under section 2102(c)(3), the Secretary shall require that the security vulnerability assessment required under this section for that chemical facility include each of the following:

(A)

The identification of any hazard that could result from a chemical facility terrorist incident at the facility.

(B)

Any vulnerability of the chemical facility with respect to—

(i)

physical security;

(ii)

programmable electronic devices, computers, computer or communications networks, Supervisory Control and Data Acquisition systems, Process Control Systems, or other automated systems used by the chemical facility;

(iii)

alarms, cameras, and other protection systems;

(iv)

communication systems;

(v)

insider threats; and

(vi)

the structural integrity of equipment for storage, handling, and other purposes.

(C)

Consideration of information relating to threats relevant to the chemical facility that is provided by the Secretary in accordance with paragraph (3).

(D)

Such other information as the Secretary determines is appropriate.

(2)

Requirements for site security plans

In the case of a covered chemical facility assigned to a high-risk tier under section 2102(c)(3), the Secretary shall require that the site security plan required under this section for that chemical facility include each of the following:

(A)

A description of security measures selected by the facility that—

(i)

address the vulnerabilities of the facility identified in the security vulnerability assessment; and

(ii)

meet the risk-based chemical facility security performance standards established by the Secretary.

(B)

A plan and schedule for periodic drills and exercises to be conducted at the chemical facility the development and execution of which includes participation by appropriate supervisory and non-supervisory facility employees and any employee representatives, local law enforcement agencies, and emergency response providers.

(C)

Equipment, plans, and procedures to be implemented or used by or at the chemical facility in the event of a chemical facility terrorist incident that affects the facility, including site evacuation, release mitigation, and containment plans.

(D)

An identification of any steps taken to coordinate with State, local, and tribal law enforcement agencies, emergency response providers, the Department and other Federal agencies, and Federal officials on security measures and plans for the collective response to a chemical facility terrorist incident.

(E)

A specification of the security officer who will be the point of contact for incident management purposes and for Federal, State, local, and tribal law enforcement and emergency response providers.

(F)

A description of enhanced security measures to be used during periods of time when the Secretary determines that heightened terrorist threat conditions exist.

(G)

An assessment and, as appropriate, a plan to implement methods to reduce the consequences of a terrorist attack.

(3)

Provision of threat-related information

(A)

Responsibilities of the Secretary

The Secretary shall provide in a timely manner, to the maximum extent practicable under applicable authority and in the interests of national security, to an owner, operator, or security officer of a chemical facility assigned to the high-risk tier under section 2102(c)(3), or another appropriate person, threat information that is relevant to that chemical facility, including an assessment of the most likely method that could be used by terrorists to exploit any vulnerabilities of the chemical facility and the likelihood of the success of such method.

(B)

Responsibilities of owner or operator

The Secretary shall require the owner or operator of a covered chemical facility to provide in a timely manner to the Secretary a full report on any intentional, attempted, or accidental penetration of the physical security or cyber security of the covered chemical facility.

(4)

Red team exercises

The Secretary shall conduct red team exercises at chemical facilities selected by the Secretary that have been assigned to a high-risk tier under section 2102(c)(3). The Secretary shall ensure that each such facility shall undergo a red team exercise during the six-year period that begins on the effective date of the regulations prescribed to carry out this title. The exercises required under this paragraph shall be—

(A)

conducted after informing the owner or operator and any employee representative of the selected chemical facility and receiving positive confirmation from such owner or operator and employee representative, if any;

(B)

designed to identify at the selected chemical facility—

(i)

any vulnerabilities of the chemical facility;

(ii)

possible methods of a chemical facility terrorist incident at that facility; and

(iii)

any weaknesses in the security plan of the chemical facility; and

(C)

conducted so as not to compromise the security or safety of the chemical facility during the exercises.

(5)

Provision of technical guidance

The Secretary shall provide, upon request, assistance and guidance to a covered chemical facility conducting a security vulnerability assessment or site security plan required under this section.

(c)

Risk-based chemical security performance standards

(1)

In general

The Secretary shall establish risk-based chemical security performance standards for the site security plans required to be prepared by covered chemical facilities. The standards shall—

(A)

require separate and increasingly stringent risk-based chemical security performance standards for site security plans as the level of risk associated with the tier increases; and

(B)

permit each covered chemical facility submitting a site security plan to select a combination of security measures that satisfy the risk-based chemical security performance standards established by the Secretary under this subsection.

(2)

Criteria

In establishing the risk-based chemical security performance standards under paragraph (1), the Secretary shall consider the criteria under subsection (a)(2).

(3)

Guidance

The Secretary shall provide guidance to each covered chemical facility regarding the types of security performance measures that, if applied, could satisfy the requirements under this section, including measures using methods to reduce the consequences of a terrorist attack that, if applied, could result in the Secretary removing the facility from the list or assigning the facility to a lower risk tier.

(d)

Co-Located Chemical Facilities

The Secretary shall allow the owner or operator of two or more chemical facilities that are located geographically close to each other or otherwise co-located to develop and implement coordinated security vulnerability assessments and site security plans, at the discretion of the owner or operator of the chemical facilities.

(e)

Alternate security programs Satisfying Requirements for security vulnerability Assessment and site security plan

(1)

Determination by the Secretary

In response to a request by an owner or operator of a covered chemical facility, or at the discretion of the Secretary, the Secretary may accept an alternative security program that the Secretary determines meets all or part of the requirements of this section and that provides for an equivalent level of security to the level of security provided for by the requirements of this title.

(2)

Use of alternate security programs

(A)

Use by individual chemical facilities

Upon review and written determination by the Secretary under paragraph (1) that the alternate security program of a covered chemical facility subject to the requirements of this section satisfies some or all of the requirements of this section, the chemical facility may use that alternate security program.

(B)

Use by classes of chemical facilities

At the discretion of the Secretary, the Secretary may identify a class or category of covered chemical facilities subject to the requirements of this section that may use an alternate security program recognized under this section in order to comply with all or part of the requirements of this section.

(3)

Partial recognition

If the Secretary finds that an alternate security program satisfies only part of the requirements of this section, the Secretary may allow a covered chemical facility subject to the requirements of this section to comply with that alternate security program for purposes of that requirement, but shall require the covered chemical facility to submit any additional information required to satisfy the requirements of this section not met by that alternate security program.

(4)

Notification

If the Secretary does not approve an alternate security program for which a petition is submitted under paragraph (1), the Secretary shall provide to the person submitting a petition under paragraph (1) written notification that includes an explanation of the reasons why the approval was not made.

(5)

Review required

Nothing in this subsection shall relieve the Secretary of the obligation—

(A)

to review a security vulnerability assessment and site security plan submitted by a covered chemical facility under this section; and

(B)

to approve or disapprove each such assessment or plan on an individual basis.

(f)

Other Authorities

(1)

Other provisions of law

A covered chemical facility that is required to prepare a security vulnerability assessment or site security plan or to submit or develop other relevant documents under chapter 701 of title 46, United States Code, the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), or section 1433 of the Safe Drinking Water Act (42 U.S.C. 300i–2) shall submit such plan or documents to the Secretary. The Secretary shall determine the extent to which actions taken by such a chemical facility pursuant to another provision of law fulfill the requirements of this section and may require such a chemical facility to complete any additional action required by this section. The Secretary shall work with the heads of the other Federal departments and agencies with authority with respect to such a covered chemical facility to ensure that requirements under other provisions of law and the requirements under this title are non-duplicative and non-contradictory.

(2)

Coordination of storage licensing or permitting requirement

In the case of any storage required to be licensed or permitted under chapter 40 of title 18, United States Code, the Secretary shall prescribe the rules and regulations for the implementation of this section with the concurrence of the Attorney General and avoid unnecessary duplication of regulatory requirements.

(g)

Role of employees

(1)

Description of role required

As appropriate, security vulnerability assessments or site security plans required under this section should describe the roles or responsibilities that chemical facility employees are expected to perform to deter or respond to a chemical facility terrorist incident.

(2)

Training for employees

The owner or operator of a covered facility required to submit a site security plan under this section shall annually provide each employee of the facility with a minimum of 8 hours of training. Such training shall include—

(A)

an identification and discussion of substances of concern that pose a risk to the workforce, emergency response providers, and the community;

(B)

a discussion of the prevention, preparedness, and response plan for the facility, including off-site consequence impacts;

(C)

an identification of opportunities to reduce or eliminate the vulnerability of the facility to a terrorist incident through the use of methods to reduce the consequences of a terrorist attack; and

(D)

a discussion and practice of appropriate emergency response procedures.

2104.

Record keeping; site inspections

(a)

Record Keeping

The Secretary shall require each covered chemical facility required to submit a security vulnerability assessment or site security plan under section 2103 to maintain a current copy of the assessment and the plan at the chemical facility.

(b)

Right of Entry

For purposes of carrying out this title, the Secretary (or a designee of the Secretary) shall have, at a reasonable time and on presentation of credentials, a right of entry to, on, or through any property of a covered chemical facility or any property on which any record required to be maintained under this section is located.

(c)

Inspections and Verifications

(1)

In general

The Secretary shall, at such time and place as the Secretary determines to be reasonable and appropriate, conduct or require the conduct of chemical facility security inspections and verifications and may, by regulation, authorize third-party inspections and verifications by persons trained and certified by the Secretary for that purpose.

(2)

Requirements

To ensure and evaluate compliance with this title, including any regulations or requirements adopted by the Secretary in furtherance of the purposes of this title, in conducting or requiring an inspection or verification under paragraph (1), the Secretary shall—

(A)

consult with owners, operators, and supervisory and non-supervisory employees of the covered chemical facility, and any employee representatives, as appropriate; and

(B)

provide an opportunity to such owners, operators, employees, and employee representatives to be present during the inspection or verification for the purpose of providing assistance when and where it is appropriate.

(d)

Requests for Records

(1)

In general

In carrying out this title, the Secretary (or a designee of the Secretary) may require the submission of or, on presentation of credentials, may at reasonable times obtain access to and copy any documentation necessary for—

(A)

reviewing or analyzing a security vulnerability assessment or site security plan submitted under section 2103; or

(B)

implementing such a site security plan.

(2)

Proper handling of records

In accessing or copying any documentation under paragraph (1), the Secretary (or a designee of the Secretary) shall ensure that the documentation is handled and secured appropriately.

(e)

Provision of records to employee representatives

If a covered chemical facility required to submit a security vulnerability assessment or site security plan submitted under section 2103 has an employee representative, the owner or operator of the facility shall provide the employee representative with a copy of any security vulnerability assessment or site security plan submitted. The employee representative shall ensure that any such assessment or plan provided to the representative is handled and secured appropriately in accordance with section 2108.

(f)

Compliance

If the Secretary determines that an owner or operator of a covered chemical facility required to submit a security vulnerability assessment or site security plan under section 2103 fails to maintain, produce, or allow access to records or to the property of the covered chemical facility as required by this section, the Secretary shall issue an order requiring compliance with this section.

2105.

Enforcement

(a)

Submission of Information

(1)

Initial submission

The Secretary shall establish specific deadlines for the submission to the Secretary of the security vulnerability assessments and site security plans required under this title. The Secretary may establish different submission requirements for the different tiers of chemical facilities under section 2102(c).

(2)

Major changes requirement

The Secretary shall establish specific deadlines and requirements for the submission by a covered chemical facility of information describing—

(A)

any change in the use by the covered chemical facility of more than a threshold amount of any substance of concern that could affect the requirements of the chemical facility under this title; and

(B)

any significant change in a security vulnerability assessment or site security plan submitted by the covered chemical facility.

(3)

Periodic Review by Chemical Facility Required

The Secretary shall require the owner or operator of a covered chemical facility required to submit a security vulnerability assessment or site security plan under this section to periodically submit to the Secretary a review of the adequacy of the security vulnerability assessment or site security plan that includes a description of any changes made to the security vulnerability assessment or site security plan.

(b)

Review of Site security Plan

(1)

Deadline for review

Not later than 180 days 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.

(2)

Disapproval

The Secretary shall disapprove a security vulnerability assessment or site security plan if the Secretary determines that—

(A)

the security vulnerability assessment or site security plan does not comply with the requirements under section 2103; or

(B)

in the case of a site security plan, the plan or the implementation of the plan is insufficient to address any vulnerabilities identified in a security vulnerability assessment of the covered chemical facility or associated oversight actions taken under section 2103 or section 2104, including a red team exercise.

(3)

Provision of notification of disapproval

If the Secretary disapproves the security vulnerability assessment or site security plan submitted by a covered chemical facility under this title or the implementation of a site security plan by such a chemical facility, the Secretary shall—

(A)

provide the owner or operator of the covered chemical facility a written notification of the disapproval, that—

(i)

includes a clear explanation of deficiencies in the assessment, plan, or implementation of the plan; and

(ii)

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;

(B)

provide guidance to assist the owner or operator of the covered chemical facility in addressing such deficiency;

(C)

in the case of a covered chemical facility for which the owner or operator of the facility does not address such deficiencies by such date as the Secretary determines to be appropriate, issue an order requiring the owner or operator to correct specified deficiencies by a specified date; and

(D)

in the case of a covered chemical facility assigned to a high-risk tier under section 2102(c)(3), upon the request of the owner or operator of the facility, consult with the owner or operator to identify appropriate steps to be taken by the owner or operator to address the deficiencies identified by the Secretary.

(4)

Order to cease operations

If the Secretary determines that the owner or operator of a chemical facility assigned to a high-risk tier under section 2102(c)(3) continues to be in noncompliance after an order for compliance is issued under paragraph (3), the Secretary may issue an order to the owner or operator to cease operations at the facility until the owner or operator complies with the order issued under paragraph (3). Notwithstanding the preceding sentence, the Secretary may not issue an order to cease operations under this paragraph to the owner or operator of a drinking water or wastewater facility unless the Secretary determines that continued operation of the facility represents a clear and present danger to homeland security.

(c)

Reporting Process

(1)

Establishment

The Secretary shall establish, and provide information to the public regarding a process by which any person may submit a report to the Secretary regarding problems, deficiencies, or vulnerabilities at a covered chemical facility associated with the risk of a chemical facility terrorist incident.

(2)

Confidentiality

The Secretary shall keep confidential the identity of a person that submits a report under paragraph (1) and any such report shall be treated as protected information under section 2108(f) to the extent that it does not consist of publicly available information.

(3)

Acknowledgment of receipt

If a report submitted under paragraph (1) identifies the person submitting the report, the Secretary shall respond promptly to such person to acknowledge receipt of the report.

(4)

Steps to address problems

The Secretary shall review and consider the information provided in any report submitted under paragraph (1) and shall take appropriate steps under this title to address any problem, deficiency, or vulnerability identified in the report.

(d)

Retaliation prohibited

(1)

Prohibition

No owner or operator of a chemical facility, profit or not-for-profit corporation, association, or any contractor, subcontractor or agent thereof, or a Federal, State, local, or tribal government agency may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, security clearance or other access to classified or sensitive information, or other privileges of employment because the employee (or any person acting pursuant to a request of the employee)—

(A)

notified the Secretary, the owner or operator of a chemical facility, or the employee’s employer of an alleged violation of this title, including communications related to carrying out the employee’s job duties;

(B)

refused to engage in any practice made unlawful by this title, if the employee has identified the alleged illegality to the employer;

(C)

testified before or otherwise provided information relevant for Congress or for any Federal or State proceeding regarding any provision (or proposed provision) of this title;

(D)

commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this title;

(E)

testified or is about to testify in any such proceeding; or

(F)

assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this title.

(2)

Enforcement action

Any employee covered by this section who alleges discrimination by an employer in violation of subsection (a) may bring an action governed by the rules and procedures, legal burdens of proof, and remedies applicable under subsections (c) through (g) of section 20109 of title 49, United States Code.

2106.

Penalties

(a)

Civil Penalties

(1)

In general

The Secretary may bring an action in a United States district court against any owner or operator of a chemical facility that violates or fails to comply with—

(A)

any order issued by the Secretary under this title; or

(B)

any site security plan approved by the Secretary under this title.

(2)

Relief

In any action under paragraph (1), a court may issue an order for injunctive relief and may award a civil penalty of not more than $50,000 for each day on which a violation occurs or a failure to comply continues.

(b)

Penalties for Unauthorized Disclosure

Any officer or employee of a Federal, State, local, or tribal government agency who, in a manner or to an extent not authorized by law, knowingly discloses any record containing protected information described in section 2108(f) shall—

(1)

be imprisoned not more than 1 year, fined under chapter 227 of title 18, United States Code, or both; and

(2)

if an officer or employee of the Government, be removed from Federal office or employment.

(c)

Treatment of Information in Adjudicative Proceedings

In a proceeding under this title, information protected under section 2108, or related vulnerability or security information, shall be treated in any judicial or administrative action as if the information were classified material.

2107.

Federal preemption

(a)

In General

Nothing in this title shall 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 to deter, detect, or respond to a chemical facility terrorist incident that is more stringent than a regulation, requirement, or standard of performance issued pursuant to this title, or shall otherwise impair any right or jurisdiction of any State or political subdivision thereof with respect to chemical facilities within that State or political subdivision thereof unless a direct conflict exists between this title and the regulation, requirement, or standard of performance issued by a State or political subdivision thereof.

(b)

Other Requirements

Nothing in this title shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance relating to environmental protection, health, or safety.

2108.

Protection of information

(a)

Prohibition of Public Disclosure of Protected Information

(1)

In general

The Secretary shall ensure that protected information, as described in subsection (f), is not disclosed except as provided in this title.

(2)

Specific prohibitions

In carrying out paragraph (1), the Secretary shall ensure that protected information is not disclosed—

(A)

by any Federal agency under section 552 of title 5, United States Code; or

(B)

under any State or local law.

(b)

Regulations

(1)

In general

In carrying out the requirements of this title, the Secretary shall prescribe such regulations, and may issue such orders, as necessary to prohibit the unauthorized disclosure of protected information, as described in subsection (f).

(2)

Requirements

The regulations prescribed under paragraph (1) shall—

(A)

allow for information sharing, on a confidential basis, with and between, Federal, State, local, and tribal law enforcement officials, and emergency response providers, and appropriate supervisory and non-supervisory chemical facility personnel, and employee representatives, if any, with security, operational, or fiduciary responsibility for the facility;

(B)

provide for the confidential use of protected information in any administrative or judicial proceeding, including placing under seal any such information that is contained in any filing, order, or other document used in such proceedings that could otherwise become part of the public record;

(C)

limit access to protected information to persons designated by the Secretary; and

(D)

ensure, to the maximum extent practicable, that—

(i)

protected information shall be maintained in a secure location; and

(ii)

access to protected information shall be limited as may be necessary to—

(I)

enable enforcement of this title; or

(II)

address an imminent and substantial threat to security or an imminent chemical facility terrorist incident.

(c)

Other Obligations Unaffected

Nothing in this section affects any obligation of the owner or operator of a chemical facility to submit or make available information to facility employees, employee organizations, or a Federal, State, tribal, or local government agency under, or otherwise to comply with, any other law.

(d)

Submission of Information to Congress

Nothing in this title shall be construed as authorizing the withholding of any information from Congress.

(e)

Disclosure of Independently Furnished Information

Nothing in this title shall be construed as affecting any authority or obligation of a Federal agency to disclose any record or information that the Federal agency obtains from a chemical facility under any other law.

(f)

Protected Information

(1)

In general

For purposes of this section, protected information includes the following:

(A)

The criteria and data used by the Secretary to assign chemical facilities to risk-based tiers under section 2102 and the tier to which each such facility is assigned.

(B)

The security vulnerability assessments and site security plans submitted to the Secretary under this title.

(C)

Information concerning the risk-based chemical facility security performance standards for a chemical facility under section 2103(c).

(D)

Any other information generated or collected by a Federal, State, local, or tribal government agency or by a chemical facility for the purpose of carrying out or complying with this title—

(i)

that describes any vulnerability of a chemical facility to an act of terrorism;

(ii)

that describes the assignment of any chemical facility to a risk-based tier under this title; or

(iii)

that describes any security measure (including any procedure, equipment, training, or exercise) for the protection of a chemical facility from an act of terrorism.

(2)

Exclusions

For purposes of this section, protected information does not include—

(A)

information that is publicly available;

(B)

information that a chemical facility has disclosed other than in accordance with this section; or

(C)

information that, if disclosed, would not be detrimental to the security of a chemical facility.

2109.

Certification by third-party entities

(a)

Certification by Third-Party Entities

The Secretary may designate a third-party entity to carry out any function under subsection (e)(5) of section 2103, subsection (b), (c), or (d) of section 2104, or subsection (b)(1) of section 2105.

(b)

Qualifications

The Secretary shall establish standards for the qualifications of third-party entities, including knowledge of physical infrastructure protection, cybersecurity, chemical facility security, hazard analysis, chemical process engineering, chemical process safety reviews, and other such factors that the Secretary determines to be necessary.

(c)

Procedures and Requirements for Private Entities

Before designating a third-party entity to carry out a function under subsection (a), the Secretary shall—

(1)

develop, document, and update, as necessary, minimum standard operating procedures and requirements applicable to such entities designated under subsection (a), including—

(A)

conducting a 90-day independent review of the procedures and requirements (or updates thereto) and the results of the analyses of such procedures (or updates thereto) pursuant to subtitle G of title VIII; and

(B)

upon completion of the independent review under subparagraph (A), designating any procedure or requirement (or any update thereto) as a qualified anti-terrorism technology pursuant to section 862(b);

(2)

conduct safety and hazard analyses of the standard operating procedures and requirements developed under paragraph (1);

(3)

conduct a review of the third-party entities’ business engagements to ensure that no conflict exists that could compromise the execution of any functions under subsection (e)(5) of section 2103, subsection (b), (c), or (d) of section 2104, or subsection (c)(1) of section 2105; and

(4)

conduct a review of the third-party entities’ business practices and disqualify any of these organizations that offer related auditing or consulting services to chemical facilities as private sector vendors.

(d)

Ensuring contracting with certain small business concerns

(1)

Requirements for prime contracts

The Secretary shall include in each contract awarded to a third-party entity—

(A)

a requirement that the third-party entity develop and implement a plan for the award of subcontracts, as appropriate, to small business concerns and disadvantaged business concerns in accordance with other applicable requirements, including the terms of such plan, as appropriate; and

(B)

a requirement that the third-party entity shall submit to the Secretary, during performance of the contract, periodic reports describing the extent to which the contractor has complied with such plan, including specification (by total dollar amount and by percentage of the total dollar value of the contract) of the value of subcontracts awarded at all tiers of subcontracting to small business concerns, including socially and economically disadvantaged small businesses concerns, small business concerns owned and controlled by service-disabled veterans, HUBZone small business concerns, small business concerns eligible to be awarded contracts pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a)), and historically black colleges and universities and Hispanic-serving institutions, tribal colleges and universities, and other minority institutions.

(2)

Definitions

For purposes of this subsection:

(A)

The terms socially and economically disadvantaged small businesses concern, small business concern owned and controlled by service-disabled veterans, and HUBZone small business concern have the meaning given such terms under the Small Business Act (15 U.S.C. 631 et seq.).

(B)

The term historically black colleges and universities means part B institutions under title III of the Higher Education Act of 1965 (20 U.S.C. 1061).

(C)

The term Hispanic-serving institution has the meaning given such term under title V of the Higher Education Act of 1965 (20 U.S.C. 1101a(a)(5)).

(D)

The term tribal colleges and universities has the meaning given such term under the Tribally Controlled College or University Assistance Act of 1978 (25 U.S.C. 1801 et seq.)).

(3)

Utilization of alliances

The Secretary shall, to the maximum extent practicable, seek to facilitate the award of contracts to conduct certification under subsection (a) to alliances of business concerns referred to in paragraph (1)(B).

(4)

Annual report

(A)

In general

By not later than October 31 of each year, 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 on the award of contracts to conduct certification under subsection (a) to business concerns referred to in paragraph (1)(B) during the fiscal year preceding the fiscal year in which the report is submitted.

(B)

Contents

The Secretary shall include in each report under subparagraph (A)—

(i)

a specification of the value of such contracts, by dollar amount and as a percentage of the total dollar value of all contracts awarded by the Department in such fiscal year;

(ii)

a specification of the total dollar value of such contracts awarded to each of the categories of business concerns referred to in paragraph (1)(B); and

(iii)

if the percentage of the total dollar value of contracts awarded under this section specified under clause (i) is less than 25 percent, an explanation of—

(I)

why the percentage is less than 25 percent; and

(II)

what will be done to ensure that the percentage for the following fiscal year will not be less than 25 percent.

(e)

Technical Review and Approval

Not later than 60 days after the date on which the results of the safety and hazard analysis of the standard operating procedures and requirements are completed under subsection (c)(2), the Secretary shall—

(1)

complete a technical review of the procedures and requirements (or updates thereto) under sections 862(b) and 863(d)(2); and

(2)

approve or disapprove such procedures and requirements (or updates thereto).

(f)

Effect of Approval

(1)

Issuance of certificate of conformance

In accordance with section 863(d)(3), the Secretary shall issue a certificate of conformance to a third-party entity to perform a function under subsection (a) if the entity—

(A)

demonstrates to the satisfaction of the Secretary the ability to perform functions in accordance with standard operating procedures and requirements (or updates thereto) approved by the Secretary under this section;

(B)

agrees to—

(i)

perform such function in accordance with such standard operating procedures and requirements (or updates thereto); and

(ii)

maintain liability insurance coverage at policy limits and in accordance with conditions to be established by the Secretary pursuant to section 864; and

(C)

signs an agreement to protect the proprietary and confidential information of any chemical facility with respect to which the entity will perform such function.

(2)

Litigation and risk management protections

A third-party entity that maintains liability insurance coverage at policy limits and in accordance with conditions to be established by the Secretary pursuant to section 864 and receives a certificate of conformance under paragraph (1) shall receive all applicable litigation and risk management protections under sections 863 and 864.

(3)

Reciprocal waiver of claims

A reciprocal waiver of claims shall be deemed to have been entered into between a third-party entity that receives a certificate of conformance under paragraph (1) and its contractors, subcontractors, suppliers, vendors, customers, and contractors and subcontractors of customers involved in the use or operation of any function performed by the third-party entity under subparagraph (a).

(4)

Information for establishing limits of liability insurance

A third-party entity seeking a certificate of conformance under paragraph (1) shall provide to the Secretary necessary information for establishing the limits of liability insurance required to be maintained by the entity under section 864(a).

(g)

Monitoring

The Secretary shall regularly monitor and inspect the operations of a third-party entity that performs a function under subsection (a) to ensure that the entity is meeting the minimum standard operating procedures and requirements established under subsection (c) and any other applicable requirement under this section.

2110.

Methods to reduce the consequences of a terrorist attack

(a)

Assessment Required

The owner or operator of a covered chemical facility shall include in the site security plan conducted pursuant to section 2103, an assessment of methods to reduce the consequences of a terrorist attack on that chemical facility, including—

(1)

a description of the methods to reduce the consequences of a terrorist attack assessed by the covered chemical facility;

(2)

the degree to which each method to reduce the consequences of a terrorist attack could, if applied, reduce the potential extent of death, injury, or serious adverse effects to human health resulting from a terrorist release;

(3)

the technical viability, costs, avoided costs (including liabilities), savings, and applicability of applying each method to reduce the consequences of a terrorist attack; and

(4)

any other information that the owner or operator of the covered chemical facility considered in conducting the assessment.

(b)

Implementation

(1)

Implementation

The owner or operator of a chemical facility assigned to a high-risk tier under section 2102(c)(3) that is required to conduct an assessment under subsection (a) shall implement methods to reduce the consequences of a terrorist attack on the chemical facility if the Secretary determines, based on an assessment in subsection (a), that the implementation of such methods at the facility—

(A)

would significantly reduce the risk of death, injury, or serious adverse effects to human health resulting from a chemical facility terrorist incident but would not increase the interim storage of a substance of concern outside the facility or directly result in the creation of a new covered chemical facility assigned to a high-risk tier under section 2102(c)(3) or the assignment of an existing facility to a high-risk tier;

(B)

can feasibly be incorporated into the operation of the covered chemical facility; and

(C)

would not significantly and demonstrably impair the ability of the owner or operator of the covered chemical facility to continue the business of the facility at a location within the United States.

(2)

Review of inability to comply

(A)

In general

An owner or operator of a covered chemical facility who is unable to comply with the Secretary’s determination under paragraph (1) shall, within 60 days of receipt of the Secretary’s determination, provide to the Secretary a written explanation that includes the reasons thereto.

(B)

Review

Not later than 60 days of receipt of an explanation submitted under subparagraph (A), the Secretary after consulting with the owner or operator who submitted such explanation, shall provide to the owner or operator a written determination of whether implementation shall be required pursuant to paragraph (1). If the Secretary determines that implementation is required, the facility shall be required to begin implementation within 180 days of that determination.

(c)

Provision of Information on Alternative Approaches

(1)

In General

The Secretary shall provide information to chemical facilities on the use and availability of methods to reduce the consequences of a terrorist attack at a covered chemical facility to aid a covered chemical facility in meeting the requirements of subsection (a).

(2)

Information to be included

The information under paragraph (1) may include information about—

(A)

general and specific types of such methods;

(B)

combinations of chemical sources, substances of concern, and hazardous processes or conditions for which such methods could be appropriate;

(C)

the availability of specific methods to reduce the consequences of a terrorist attack;

(D)

the costs and cost savings resulting from the use of such methods;

(E)

emerging technologies that could be transferred from research models or prototypes to practical applications;

(F)

the availability of technical assistance and best practices; and

(G)

such other matters as the Secretary determines is appropriate.

(3)

Collection of information

The Secretary may collect information necessary to fulfill the requirements of paragraph (1)—

(A)

from information obtained from owners or operators of chemical facilities pursuant to this title, including those who have registered such facilities pursuant to part 68 of title 40 Code of Federal Regulations (or successor regulations);

(B)

from studies and reports published by academic institutions, National Laboratories, and other relevant and reputable public and private sector experts; and

(C)

through such other methods as the Secretary deems appropriate.

(4)

Public availability

Information made available publicly under this subsection shall not identify any specific chemical facility, violate the protection of information provisions under section 2108, or disclose any confidential or proprietary information.

(d)

Protected Information

An assessment prepared under subsection (a) is protected information under section 2108(f).

(e)

Funding for methods To reduce the consequences of a terrorist attack

The Secretary shall make funds available to help defray the cost of implementing methods to reduce the consequences of a terrorist attack to covered chemical facilities that are required by the Secretary to implement such methods or that voluntarily choose to implement such methods. In making such funds available, the Secretary shall give special consideration to those facilities required by the Secretary to implement methods to reduce the consequences of a terrorist attack pursuant to subsection (b) and water and wastewater facilities administered by State, local, tribal, or municipal authorities that are subject to the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) or section 1433 of the Safe Drinking Water Act (42 U.S.C. 300i-2).

(f)

Publicly-owned water and wastewater treatment facilities

Notwithstanding any other provision of this title, the Secretary may not require a publicly-owned facility regulated under the Safe Drinking Water Act (42 U.S.C. 300i–2) or the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) to implement methods to reduce the consequences of a terrorist attack under subsection (b) unless that facility receives funding under subsection (e).

2111.

Applicability

This title shall not apply to—

(1)

any chemical facility that is owned and operated by the Secretary of Defense, the Attorney General, or the Secretary of Energy;

(2)

the transportation in commerce, including incidental storage, of any substance of concern regulated as a hazardous material under chapter 51 of title 49, United States Code; or

(3)

any chemical facility that is owned or operated by a licensee or certificate holder of the Nuclear Regulatory Commission.

2112.

Savings clause

Nothing in this title shall affect or modify in any way any obligation or liability of any person under any other Federal law, including section 112 of the Clean Air Act (42 U.S.C. 7412), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Occupational Safety and Health Act (29 U.S.C. 651 et seq.), the National Labor Relations Act (29 U.S.C. 151 et seq.), the Emergency Planning and Community Right to Know Act of 1996 (42 U.S.C. 11001 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Maritime Transportation Security Act of 2002 (Pubic Law 107–295), and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).

2113.

Office of Chemical Facility Security

(a)

In general

There is in the Department an Office of Chemical Facility Security, headed by a Director, who shall be a member of the Senior Executive Service in accordance with subchapter VI of chapter 33 of title 5, United States Code, under section 5382 of that title, and who shall be responsible for carrying out the responsibilities of the Secretary under this title.

(b)

Professional qualifications

The individual selected by the Secretary as the Director Office of Chemical Facility Security should have a demonstrated knowledge of physical infrastructure protection, cybersecurity, chemical facility security, hazard analysis, chemical process engineering, chemical process safety reviews, and other such factors that the Secretary determines to be necessary.

(c)

Selection process

The Secretary shall make a reasonable effort to select an individual to serve as the Director from among a group of candidates that is diverse with respect to race, ethnicity, age, gender, and disability characteristics and submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate information on the selection process, including details on efforts to assure diversity among the candidates considered for this position.

2114.

Security background checks of covered individuals at certain chemical facilities

(a)

Regulations issued by the Secretary

(1)

In general

The Secretary shall issue regulations to require a covered chemical facility assigned to a high-risk tier under section 2102(c)(3) to subject covered individuals who have access to restricted areas or critical assets or who are determined to require security background checks under risk-based guidance to security background checks based on risk-based guidance. Such regulations shall set forth—

(A)

the scope of the security background checks, including the types of disqualifying offenses and the time period covered for each covered individual;

(B)

the processes to conduct the security background checks;

(C)

the necessary biographical information and other data required in order to conduct the security background checks; and

(D)

a redress process for adversely-affected covered individuals consistent with subsections (b) and (c).

(2)

Enforcement

If the owner or operator of a covered chemical facility that is subject to paragraph (1) fails to comply with the requirements of that paragraph, the Secretary may issue a penalty against the owner or operator in accordance with section 2106.

(3)

Requirement for redress process

If a covered chemical facility performs a security background check on a covered individual to comply with regulations issued by the Secretary under paragraph (1), the Secretary shall not consider the facility in compliance unless an adequate redress process as described in subsection (c) is provided to covered individuals.

(b)

Requirements

Upon issuance of a final regulation under subsection (a), or any future rule, regulation, directive or guidance, by the Secretary regarding a security background check of a covered individual, the Secretary shall prohibit the covered chemical facility from making an adverse employment decision, including removal or suspension of the employee, due to such rule, regulation, directive, or guidance with respect to a covered individual unless the covered individual—

(1)

has been convicted of, has been found not guilty of by reason of insanity of, or is under want, warrant, or indictment for a permanent disqualifying criminal offense listed in part 1572 of title 49, Code of Federal Regulations;

(2)

was convicted of or found not guilty by reason of insanity of an interim disqualifying criminal offense listed in part 1572 of title 49, Code of Federal Regulations, within 7 years of the date on which the chemical facility performs the security background check;

(3)

was incarcerated for an interim disqualifying criminal offense listed in part 1572 of title 49, Code of Federal Regulations, and released from incarceration within 5 years of the date that the chemical facility performs the security background check;

(4)

is determined, as a result of the security background check, to be a known terrorist or to have terrorist ties; or

(5)

is determined, as a result of the security background check, not to be legally authorized to work in the United States.

(c)

Redress process

Upon the issuance of a final regulation under subsection (a), or any future rule, regulation, directive, or guidance, requiring a covered chemical facility to perform a security background check of a covered individual, the Secretary shall—

(1)

require an adequate redress process for a covered individual subjected to an adverse employment decision, including removal or suspension of the employee, due to such rule, regulation, directive, or guidance that is consistent with the appeals and waiver processes established for applicants for commercial motor vehicle hazardous materials endorsements and transportation workers at ports, as required by section 70105(c) of title 46, United States Code, including all rights to hearings before an administration law judge, scope of review, a review of an unclassified summary of classified evidence equivalent to the summary provided in part 1515 of title 49, Code of Federal Regulations, and procedures for new evidence for both appeals and waiver decisions;

(2)

have the authority to order an appropriate remedy, including reinstatement of the covered individual, should the Secretary determine that a covered chemical facility wrongfully made an adverse employment decision regarding a covered individual pursuant to such rule, regulation, directive, or guidance;

(3)

ensure that the redress process required under this subsection affords to the covered individual a full disclosure of any public-record event covered by subsection (b) that provides the basis for an adverse employment decision; and

(4)

ensure that covered individual receives the individual’s full wages and benefits until all appeals and waiver procedures are exhausted.

(d)

False statements

(1)

In general

A covered chemical facility may not knowingly misrepresent to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check under this section.

(2)

Deadline for regulations

Not later than 1 year after the date of enactment of the Chemical Facility Anti-Terrorism Act of 2008, the Secretary shall issue a regulation that prohibits a covered chemical facility from knowingly misrepresenting to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check.

(e)

Restrictions on use and maintenance of information

Information obtained under this section by the Secretary or a covered chemical facility that is an employer of a covered individual shall be handled as follows:

(1)

Such information may not be made available to the public.

(2)

Such information may not be accessed by employees of the facility except for such employees who are directly involved with collecting the information or conducting or evaluating security background checks.

(3)

Such information shall be maintained confidentially by facility and the Secretary and may be used only for making determinations under this section.

(4)

The Secretary may share such information with other Federal law enforcement agencies.

(f)

Rights and responsibilities

Nothing in the section shall be construed to abridge any right or responsibility of a covered individual or covered chemical facility under any other Federal, State, local, or tribal law or collective bargaining agreement.

(g)

No preemption of Federal or State law

Nothing in this section shall be construed to preempt a Federal, State, local, or tribal law that requires criminal history background checks, checks on the authorization of an individual to work in the United States, or other background checks of covered individuals.

(h)

Definition of security background check

The term security background check means a review at no cost to any covered individual of the following for the purpose of identifying individuals who may pose a threat to chemical facility security, to national security, or of terrorism.

(1)

Relevant databases to verify and validate identity.

(2)

Relevant criminal history databases.

(3)

In the case of an alien (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3))), the relevant data bases to determine the status of the alien under the immigration laws of the United States.

(4)

Relevant databases to identify terrorists or people with known ties to terrorists.

(5)

Other relevant information or data bases, as determined by the Secretary.

(i)

Included Individuals

The Secretary shall require any individual at a covered chemical facility or associated with a covered chemical facility who is provided a copy of a security vulnerability assessment or site security plan to be subjected to a security background check.

(j)

Savings Clause

Nothing in this section shall be construed as creating any new right or modifying any existing right of an individual to appeal a determination by the Secretary as a result of a check against a terrorist watch list.

2115.

National Chemical Security Center of Excellence

(a)

Establishment

(1)

In general

The Secretary shall establish a National Chemical Security Center of Excellence to conduct research and education and to develop technologies to lower the overall risk of terrorist chemical attack, including technologies or practices to decrease threats, vulnerabilities, and consequences in order to ensure the security of chemical facilities.

(2)

Additional requirements

In establishing the National Chemical Security Center of Excellence under paragraph (1), or in reorganizing any other chemical, biological, or agricultural Center of Excellence established before the date of enactment of the Chemical Facility Anti-Terrorism Act of 2008, the Secretary shall—

(A)

recognize the unique scientific, technical, and funding requirements of the chemical, biological, and agricultural fields with respect to the mission of the Department of Homeland Security; and

(B)

maintain the National Chemical Security Center of Excellence and any such other chemical, biological, or agricultural Center of Excellence as a distinct entity with respect to organization and funding.

(b)

Designation of lead institution

The Secretary shall select at least one of the institutions identified in subsection (c) as the lead institution responsible for coordinating the National Chemical Security Center of Excellence. Any member institution that is part of the consortium under subsection (c) may serve as a lead institution for the Center.

(c)

Member Institutions; consortium

(1)

Consortium

The lead institution selected under subsection (b) shall execute agreements with the other institutions of higher education identified in this subsection and other institutions designated by the Secretary to develop a consortium to assist in accomplishing the goals of the Center.

(2)

Members

The National Chemical Security Center of Excellence shall consist of at least three institutions of higher education with current expertise or the capability to produce appropriate expertise, including—

(A)

one historically black college or university; and

(B)

one Hispanic-serving institution.

(3)

Inclusions

The Secretary shall ensure that an appropriate number of any additional partner colleges or universities designated by the Secretary under this subsection are historically black colleges and universities, Hispanic-serving institutions, and tribal colleges and universities.

(4)

Definitions

For the purposes of this subsection, the terms historically black colleges and universities, Hispanic-serving institutions, and tribal colleges and universities have the meanings given such terms under section 2109(d)(2).

2116.

Authorization of appropriations

There is authorized to be appropriated to the Secretary of Homeland Security to carry out this title—

(1)

$325,000,000 for fiscal year 2010, of which $100,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack pursuant to section 2110(e);

(2)

$300,000,000 for fiscal year 2011, of which $75,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack pursuant to section 2110(e); and

(3)

$275,000,000 for fiscal year 2012, of which $50,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack pursuant to section 2110(e).

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(b)

Clerical Amendment

The table of contents in section 1(b) of such Act is amended by adding at the end the following:

Title XXI—Regulation of Security Practices at Chemical Facilities

Sec. 2101. Definitions.

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

Sec. 2103. Security vulnerability assessments and site security plans.

Sec. 2104. Record keeping; site inspections.

Sec. 2105. Enforcement.

Sec. 2106. Penalties.

Sec. 2107. Federal preemption.

Sec. 2108. Protection of information.

Sec. 2109. Certification by third-party entities.

Sec. 2110. Methods to reduce the consequences of a terrorist attack.

Sec. 2111. Applicability.

Sec. 2112. Savings clause.

Sec. 2113. Office of Chemical Facility Security.

Sec. 2114. Security background checks of covered individuals at certain chemical facilities.

Sec. 2114. National chemical security center of excellence.

Sec. 2115. Authorization of appropriations.

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(c)

Conforming repeal

(1)

Repeal

The Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295) is amended by striking section 550.

(2)

Effective date

The amendment made by paragraph (1) shall take effect on October 1, 2009.

(d)

Regulations

In carrying out the requirements of title XXI of the Homeland Security Act of 2002, as added by subsection (a), the Secretary may, to the extent that the Secretary determines is appropriate, use any of the regulations known as CFATS regulations, as in effect immediately before the enactment of this Act, that the Secretary determines carry out such requirements.

(e)

Compliance with preexisting timelines

In the case of a chemical facility that is required to submit a security vulnerability assessment and site security plan under section 2103 of the Homeland Security Act of 2002, as added by subsection (a), and that, as of the date of the enactment of this Act, is subject to the regulations known as CFATS regulations, as in effect immediately before the date of the enactment of this Act, the Secretary may require the facility to adhere to any timelines applicable under such regulations instead of any applicable timeline under subsection (i) of that section.

(f)

Deadlines

(1)

Deadline for issuing certain guidance

Not later than October 1, 2009, the Secretary of Homeland Security shall update any guidance, recommendations, suggested action items, or any other widely disseminated voluntary action item relating to performing a security background check (as such term is defined in section 2114(g) of the Homeland Security Act of 2002, as added by subsection (a)) of a covered individual (as that term is defined in section 2101(5) of such Act, as so added) that was issued to a covered chemical facility (as that term is defined in section 2101(6) of such Act, as so added) prior to that date to ensure that such guidance, recommendations, suggested action items or other widely disseminated voluntary action item is compliance with section 2114(a)(1) of such Act, as so added.

(2)

Deadline for high-risk facilities to submit security vulnerability assessments and site security plans

(A)

In general

The owner or operator of a chemical facility assigned to a high-risk tier under paragraph (3) of subsection (c) of section 2102 of the Homeland Security Act of 2002, as added by section 4, shall submit to the Secretary of Homeland Security—

(i)

the security vulnerability assessment required under that subsection by not later than 3 months after the date on which the Secretary prescribes regulations to carry out that subsection; and

(ii)

the site security plan required under that subsection by not later than 4 months after receiving notice that the Secretary has approved the security vulnerability assessment submitted under clause (i).

(B)

Extension

The Secretary may extend the deadline under subparagraph (A) for a chemical facility for not longer than six months.

(C)

Facilities covered by CFATS

The owner or operator of a chemical facility assigned to a high-risk tier under section 2102(c)(3) of the Homeland Security Act of 2002, as added by subsection (a), who, before October 1, 2009, submits a security vulnerability assessment or site security plan under the regulations known as CFATS regulations, as in effect immediately before the enactment of this Act, shall be required to submit an addendum to the facility’s security vulnerability assessment or site security plan to reflect any additional requirements of this Act or the amendments made by this Act.

5.

Annual report to Congress

(a)

Annual Report

Not later than one year after the date of the enactment of this Act, and annually thereafter for the next four years, the Secretary of Homeland Security shall submit to Congress a report on progress in achieving compliance with title XXI of the Homeland Security Act of 2002, as added by section 4. Each such report shall include—

(1)

an assessment of the effectiveness of the site security plans developed under this title;

(2)

any lessons learned in implementing this title (including as a result of a red-team exercise); and

(3)

any recommendations of the Secretary to improve the programs, plans, and procedures under this title, including the feasibility of programs to increase the number of economically disadvantaged businesses eligible to perform third-party entity responsibilities pursuant to sections 2103(e)(5), 2104(b) and (c), and 2105(b)(1) of such Act, as so added.

(b)

Protected Information

A report under this section may not include information protected under section 2108 of such Act, as so added.

6.

Inspector general report

(a)

Report Required

Not later than October 1, 2010, the Inspector General of the Department of Homeland Security 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 reviews the effectiveness of the implementation of title XXI of the Homeland Security Act of 2002, as added by subsection (a), including the effectiveness of site security plans required under such title and any recommendations to improve the programs, plans, and procedures required under such title, including the Secretary’s dissemination of best practices under section 2103(a)(1)(A) of such Act, as so added, and the participating rates of economically disadvantaged businesses eligible to perform third-party entity responsibilities pursuant to sections 2103(e)(5), 2104(b), (c), and (d), and 2105(b)(1) of such Act, as so added.

(b)

Classified Annex

The report required under subsection (a) shall be in unclassified form but may include a classified annex, if the Inspector General determines a classified annex is necessary.

7.

Deadline for regulations

(a)

In general

The Secretary shall conduct the rulemaking process so that final rules carrying out the provisions of this Act and the amendments made by this Act are effective on October 1, 2009.

8.

Chemical facility training program

(a)

In General

Subtitle A of title VIII of the Homeland Security Act of 2002 (6 U.S.C. 361) is amended by adding at the end the following new section:

802.

Chemical facility training program

(a)

In General

The Secretary shall establish a Chemical Facility Security Training Program (referred to in this section as the Program) for the purpose of enhancing the collective response to terrorism and the capabilities of chemical facilities to prevent, prepare for, respond to, mitigate against, and recover from threatened or actual chemical facility terrorist incidents.

(b)

Requirements

The Program shall provide training that—

(1)

reaches multiple disciplines, including Federal, State, local, and tribal government officials, chemical facility owners, operators, and employees, and governmental and nongovernmental emergency response providers;

(2)

utilizes multiple training mediums and methods;

(3)

addresses chemical facility security and site security plans, including—

(A)

site security plans and procedures for differing threat levels;

(B)

physical security, security equipment and systems, access control, and methods for preventing and countering theft;

(C)

recognition and detection of weapons and devices;

(D)

security incident procedures, including procedures for communicating with emergency response providers;

(E)

evacuation procedures and use of appropriate personal protective equipment; and

(F)

other requirements that the Secretary deems appropriate.

(4)

is consistent with, and supports implementation of, the National Incident Management System, the National Response Framework, the National Infrastructure Protection Plan, the National Preparedness Guidelines, and other national initiatives;

(5)

includes consideration of existing security and hazardous chemical training programs including Federal or industry programs; and

(6)

is evaluated against clear and consistent performance measures.

(c)

National Voluntary Consensus Standards

The Secretary shall—

(1)

support the promulgation, and regular updating as necessary and appropriate of national voluntary consensus standards for chemical facility security training ensuring that training is consistent with such standards; and

(2)

ensure that the training provided under this section is consistent with such standards.

(d)

Training Partners

In developing and delivering training under the Program, the Secretary shall—

(1)

work with government training programs, chemical facilities, academic institutions, industry and private organizations, employee organizations, and other relevant entities that provide specialized state-of-the-art training; and

(2)

utilize, as appropriate, training provided by industry, public safety academies, Federal programs, employee organizations, State and private colleges and universities, and other chemical facilities.

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(b)

Clerical Amendment

The table of contents in section 1(b) of such Act is amended by inserting after the item relating to section 801 the following:

Sec. 802. Chemical facility training program.

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