H.R. 2868 (111th): Continuing Chemical Facilities Antiterrorism Security Act of 2010

111th Congress, 2009–2010. Text as of Sep 30, 2009 (Reported by House Committee).

Status & Summary | PDF | Source: GPO

IB

Union Calendar No. 178

111th CONGRESS

1st Session

H. R. 2868

[Report No. 111–205, Parts I and II]

IN THE HOUSE OF REPRESENTATIVES

June 15, 2009

(for himself, Mr. Waxman, Ms. Jackson-Lee of Texas, Mr. Markey of Massachusetts, Ms. Clarke, 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

July 13, 2009

Reported from the Committee on Homeland Security with an amendment

Strike out all after the enacting clause and insert the part printed in italic

July 13, 2009

Referral to the Committee on Energy and Commerce extended for a period ending not later than July 31, 2009

July 13, 2009

Referred to the Committee on the Judiciary for a period ending not later than July 31, 2009, for consideration of such provisions of the bill and the amendment as fall within the jurisdiction of that committee pursuant to clause 1(k), rule X

July 31, 2009

Referral to the Committees on Energy and Commerce and the Judiciary extended for a period ending not later than September 30, 2009

September 30, 2009

Referral to the Committees on Energy and Commerce and the Judiciary extended for a period ending not later than October 23, 2009

October 23, 2009

Additional sponsors: Ms. Norton, Mr. Hinchey, and Mrs. Maloney

October 23, 2009

Reported from the Committee on Energy and Commerce with an amendment

Strike out all after the enacting clause and insert the part printed in boldface roman

October 23, 2009

Committee on the Judiciary discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed

For text of introduced bill, see copy of bill as introduced on June 15, 2009

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 2009.

2.

Findings and purpose

(a)

Findings

Congress makes the following findings:

(1)

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

(2)

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

(3)

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

(4)

The Secretary of Homeland Security issued interim final regulations called the Chemical Facility Anti-Terrorism Standards, which became effective on June 8, 2007.

(b)

Purpose

The purpose of this Act is to modify and make permanent the authority of the Secretary of Homeland Security to regulate security practices at chemical facilities.

3.

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

(a)

In General

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

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 the owner or operator of the facility possesses or plans to possess at any relevant point in time a substance of concern; or

(B)

that meets other risk-related criteria identified by the Secretary.

(2)

The term chemical facility security performance standards means risk-based standards established by the Secretary to ensure or enhance the security of a chemical facility against a chemical facility terrorist incident that are designed to address the following:

(A)

Restricting the area perimeter.

(B)

Securing site assets.

(C)

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

(i)

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

(ii)

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

(D)

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

(i)

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

(ii)

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

(iii)

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

(iv)

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

(E)

Securing and monitoring the shipping, receipt, and storage of a substance of concern for the chemical facility.

(F)

Deterring theft or diversion of a substance of concern.

(G)

Deterring insider sabotage.

(H)

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

(I)

Developing and exercising an internal emergency plan for owners, operators, and covered individuals of a covered chemical facility for responding to chemical facility terrorist incidents at the facility. Any such plan shall include the provision of appropriate information to any local emergency planning committee, local law enforcement officials, and emergency response providers to ensure an effective, collective response to terrorist incidents.

(J)

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

(i)

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

(ii)

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

(iii)

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

(K)

Ensuring mandatory annual security training, exercises, and drills of chemical facility personnel appropriate to their roles, responsibilities, and access to chemicals, including participation by local law enforcement, local emergency response providers, appropriate supervisory and non-supervisory facility employees and their employee representatives, if any.

(L)

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

(i)

measures designed to verify and validate identity;

(ii)

measures designed to check criminal history;

(iii)

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

(iv)

measures designed to identify people with terrorist ties.

(M)

Escalating the level of protective measures for periods of elevated threat.

(N)

Specific threats, vulnerabilities, or risks identified by the Secretary for that chemical facility.

(O)

Reporting of significant security incidents to the Department and to appropriate local law enforcement officials.

(P)

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

(Q)

Establishing one or more officials and an organization responsible for—

(i)

security;

(ii)

compliance with the standards under this paragraph;

(iii)

serving as the point of contact for incident management purposes with Federal, State, local, and tribal agencies, law enforcement, and emergency response providers; and

(iv)

coordination with Federal, State, local, and tribal agencies, law enforcement, and emergency response providers regarding plans and security measures for the collective response to a chemical facility terrorist incident.

(R)

Maintaining appropriate records relating to the security of the facility, including a copy of the most recent security vulnerability assessment and site security plan at the chemical facility.

(S)

Assessing and, as appropriate, utilizing methods to reduce the consequences of a terrorist attack.

(T)

Methods to recover or mitigate the release of a substance of concern in the event of a chemical facility terrorist incident.

(U)

Any additional security performance standards the Secretary may specify.

(3)

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

(A)

the release of a substance of concern from a chemical facility;

(B)

the theft, misappropriation, or misuse of a substance of concern from a chemical facility; or

(C)

the sabotage of a chemical facility or a substance of concern at a chemical facility.

(4)

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

(5)

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

(6)

The term covered chemical facility means a chemical facility that meets the criteria of section 2102(b)(1).

(7)

The term environment means—

(A)

the navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.); and

(B)

any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.

(8)

The term owner or operator with respect to a facility means any of the following:

(A)

The person who owns the facility.

(B)

The person who has responsibility for daily operation of the facility.

(C)

The person who leases the facility.

(9)

The term person means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body and shall include each department, agency, and instrumentality of the United States.

(10)

The term release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes (A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine, (C) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act (42 U.S.C. 2210), or, for the purposes of section 104 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. 9604) or any other response action, any release of source byproduct, or special nuclear material from any processing site designated under section 102(a)(1) or 302(a) of the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. 7912(a)(1); and (D) the normal application of fertilizer.

(11)

The term substance of concern means a chemical substance in quantity and form that is so designated by the Secretary under section 2102(a).

(12)

The term method to reduce the consequences of a terrorist attack means a measure used at a chemical facility that reduces or eliminates the potential consequences of a chemical facility terrorist incident, including—

(A)

the elimination or reduction in the amount of a substance of concern possessed or planned to be possessed by an owner or operator of a covered chemical facility through the use of alternate substances, formulations, or processes;

(B)

the modification of pressures, temperatures, or concentrations of a substance of concern; and

(C)

the reduction or elimination of onsite handling of a substance of concern through improvement of inventory control or chemical use efficiency.

(13)

The term academic laboratory means an area owned by an eligible institution of higher education defined pursuant to section 101 of the Higher Education Act of 1965 (20 U.S.C. 2001) or a non-profit research institute or teaching hospital that has a formal affiliation with a college or university where relatively small quantities of chemicals and other substances are used on a non-production basis for teaching, research, or diagnostic purposes, and are stored and used in containers that are easily manipulated by one person, including photo laboratories, art studios, field laboratories research farms, chemical stockrooms, and preparatory laboratories.

(14)

The term surface transportation modes means mass transit, commuter and long-distance passenger rail, freight rail, commercial vehicles (including intercity buses), and pipelines, and related infrastructure (including roads and highways), that are within the territory of the United States.

2102.

Risk-based designation and ranking of chemical facilities

(a)

Substances of Concern

(1)

Designation by the secretary

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

(2)

Matters for consideration

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

(b)

List of covered Chemical Facilities

(1)

Criteria for list of facilities

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

(A)

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

(B)

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

(C)

The proximity of the chemical facility to large population centers.

(2)

Submission of information

The Secretary may require the submission of information with respect to the quantities of substances of concern that an owner or operator of a chemical facility possesses or plans to possess in order to determine whether to designate a chemical facility as a covered chemical facility for purposes of this title.

(c)

Assignment of Chemical Facilities to Risk-Based Tiers

(1)

Assignment

The Secretary shall assign each covered chemical facility to one of four risk-based tiers established by the Secretary, with tier one representing the highest degree of risk and tier four the lowest degree of risk.

(2)

Provision of information

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

(3)

Notification

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

(A)

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

(B)

Information related to the criticality of the covered chemical facility.

(C)

The proximity or interrelationship of the covered chemical facility to other critical infrastructure.

(d)

Requirement for review

The Secretary—

(1)

shall periodically review—

(A)

the designation of a substance of concern and the threshold quantity under subsection (a)(1); and

(B)

the criteria under subsection (b)(1); and

(2)

may at any time determine whether a chemical facility is a covered chemical facility or change the tier to which such a facility is assigned under subsection (c)(1).

(e)

Provision of threat-related information

In order to effectively assess the vulnerabilities to a covered chemical facility, the Secretary shall provide to the owner, operator, or security officer of a covered chemical facility threat information regarding probable threats to the facility and methods that could be used in a chemical facility terrorist incident.

2103.

Security vulnerability assessments and site security plans

(a)

In general

(1)

Requirement

The Secretary shall—

(A)

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

(B)

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

(i)

conduct an assessment of the vulnerability of the covered chemical facility to a range of chemical facility terrorist incidents, including an incident that results in a worst-case release of a substance of concern;

(ii)

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

(iii)

include at least one supervisory and at least one non-supervisory employee of the covered chemical facility, and at least one employee representative, from each bargaining agent at the covered chemical facility, if any, in developing the security vulnerability assessment and site security plan required under this clause;

(iv)

include, with the submission of a security vulnerability assessment of the facility and the site security plan, a signed statement by the owner or operator of the covered chemical facility that certifies that the submission is provided to the Secretary with knowledge of the penalty provisions under section 2107.

(C)

set deadlines, by tier, for the completion of security vulnerability assessments and site security plans;

(D)

upon request, as necessary, and to the extent that resources permit, provide technical assistance to a covered chemical facility conducting a vulnerability assessment or site security plan required under this section;

(E)

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

(i)

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

(ii)

any material modification to a covered chemical facility’s operations or site that may affect the security vulnerability assessment or site security plan submitted by the covered chemical facility;

(F)

require the owner or operator of a covered chemical facility to review and resubmit a security vulnerability assessment or site security plan not less frequently than once every 5 years;

(G)

not later than 180 days after the date on which the Secretary receives a security vulnerability assessment or site security plan under this title, review and approve or disapprove such assessment or plan; and

(H)

establish, as appropriate, modified or separate standards, protocols, and procedures for security vulnerability assessments and site security plans for covered chemical facilities that are also academic laboratories.

(2)

Inherently governmental function

The approval or disapproval of a security vulnerability assessment or site security plan under this section is an inherently governmental function.

(b)

Risk-based chemical security performance standards

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

(1)

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

(2)

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

(3)

provide, as appropriate, academic laboratories with modified or separate security measures that recognize the smaller quantities, highly distributed environments, and short periods of time that characterize the substances of concern at academic laboratories.

(c)

Co-Located Chemical Facilities

The Secretary may allow an owner or operator of a covered chemical facility that is located geographically close to another covered chemical facility to develop and implement coordinated security vulnerability assessments and site security plans.

(d)

Alternate security programs satisfying requirements for security vulnerability assessment and site security plan

(1)

Acceptance of program

In response to a request by an owner or operator of a covered chemical facility, the Secretary may accept an alternate security program submitted by the owner or operator of the facility as a component of the security vulnerability assessment or site security plan required under this section, if the Secretary determines that such alternate security program, in combination with other components of the security vulnerability assessment and site security plan submitted by the owner or operator of the facility—

(A)

meets the requirements of this title and the regulations promulgated pursuant to this title;

(B)

provides an equivalent level of security to the level of security established pursuant to the regulations promulgated under this title; and

(C)

includes employee participation as required under subsection (a)(1)(B)(iii).

(2)

Secretarial review required

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

(A)

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

(B)

to approve or disapprove each such assessment or plan on an individual basis according to the deadlines established under subsection (a).

(3)

Covered facility’s obligations unaffected

Nothing in this subsection shall relieve any covered chemical facility of the obligation and responsibility to comply with all of the requirements of this title.

(4)

Personnel surety alternate security program

In response to an application from a non-profit, personnel surety accrediting organization acting on behalf of, and with written authorization from, the owner or operator of a covered chemical facility, the Secretary may accept a personnel surety alternate security program that meets the requirements of section 2115 and provides for a background check process that is—

(A)

expedited, affordable, reliable, and accurate;

(B)

fully protective of the rights of covered individuals through procedures that are consistent with the privacy protections available under the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.); and

(C)

is a single background check consistent with a risk-based tiered program.

(e)

Other Authorities

(1)

Regulation of maritime facilities

(A)

Risk-Based Tiering

Notwithstanding any other provision of law, the owner or operator of a chemical facility required to submit a facility security plan under section 70103(c) of title 46, United States Code, shall be required to submit information to the Secretary necessary to determine whether to designate such a facility as a covered chemical facility and to assign the facility to a risk-based tier under section 2102 of this title.

(B)

Additional Measures

In the case of a facility designated as a covered chemical facility under this title that is also regulated under section 70103(c) of title 46, United States Code, the Secretary shall require the owner or operator of such facility to update the vulnerability assessments and facility security plans required under that section, if necessary, to ensure an equivalent level of security for substances of concern, including the requirements under section 2111, in the same manner as other covered chemical facilities in this title.

(C)

Information Sharing and Protection

Notwithstanding section 70103(d) of title 46, United States Code, the Secretary shall apply the information sharing and protection requirements in section 2110 of this title to a facility described in subparagraph (B).

(D)

Enforcement

The Secretary shall establish, by rulemaking, procedures to ensure that an owner or operator of a covered chemical facility required to update the vulnerability assessment and facility security plan for the facility under subparagraph (B) is in compliance with the requirements of this title.

(E)

Formal agreement

The Secretary shall—

(i)

require the Office of Infrastructure Protection and the Coast Guard to enter into a formal agreement detailing their respective roles and responsibilities in carrying out the requirements of this title. Such agreement shall ensure that the enforcement and compliance requirements under this title and section 70103 of title 46, United States Code, are not conflicting or duplicative; and

(ii)

designate the agency responsible for enforcement of the requirements of this title for covered chemical facilities referred to in subparagraph (A).

(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.

(f)

Role of employees

(1)

Description of role required

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

(2)

Training for employees

The owner or operator of a covered chemical facility required to submit a site security plan under this section shall annually provide each covered individual with a role or responsibility referred to in paragraph (1) at the facility with a minimum of 8 hours of training. Such training shall—

(A)

include an identification and discussion of substances of concern;

(B)

include a discussion of possible consequences of a chemical facility terrorist incident;

(C)

review and exercise the covered chemical facility’s site security plan, including any requirements for differing threat levels;

(D)

include a review of information protection requirements;

(E)

include a discussion of physical and cyber security equipment, systems, and methods used to achieve chemical security performance standards;

(F)

allow training with other relevant participants, including Federal, State, local, and tribal authorities, and first responders, where appropriate;

(G)

use existing national voluntary consensus standards, chosen jointly with employee representatives, if any;

(H)

allow instruction through government training programs, chemical facilities, academic institutions, nonprofit organizations, industry and private organizations, employee organizations, and other relevant entities that provide such training;

(I)

use multiple training media and methods;

(J)

include identification and assessment of methods to reduce the consequences of a terrorist attack; and

(K)

include a discussion of appropriate emergency response procedures.

(g)

Worker training grants program

(1)

Authority

The Secretary shall establish a grant program to award grants to eligible entities to provide for training and education of covered individuals, first responders, and emergency response providers.

(2)

Administration

The Secretary shall enter into an agreement with another Federal or State agency to make and administer grants or cooperative agreements under this section.

(3)

Use of funds

The recipient of a grant under this subsection shall use the grant to provide for training and education of covered individuals, first responders, and emergency response providers, including—

(A)

the annual mandatory training specified in subsection (f)(2); and

(B)

other appropriate training for first responders and emergency response providers in protecting nearby persons, property, critical infrastructure, or the environment from the effects of a chemical facility terrorist incident.

(4)

Eligible entities

For purposes of this subsection, an eligible entity is a nonprofit organization with demonstrated experience in implementing and operating successful worker or first responder health and safety training programs.

2104.

Site inspections

(a)

Right of Entry

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

(b)

Inspections and Verifications

(1)

In general

The Secretary shall, at such time and place as the Secretary determines to be reasonable and appropriate, conduct chemical facility security inspections and verifications.

(2)

Requirements

To ensure and evaluate compliance with this title, including any regulations or requirements adopted by the Secretary in furtherance of the purposes of this title, in conducting an inspection or verification under paragraph (1), the Secretary shall have access to the owners, operators, employees, and employee representatives, if any, of a covered chemical facility.

(c)

Unannounced inspections

In addition to any inspection conducted pursuant to subsection (b), the Secretary shall require covered chemical facilities assigned to tier 1 and tier 2 under section 2102(c)(1) to undergo unannounced facility inspections. The inspections required under this subsection shall be—

(1)

conducted without prior notice to the facility;

(2)

designed to evaluate at the chemical facility undergoing inspection—

(A)

the ability of the chemical facility to prevent a chemical facility terrorist incident that applicable chemical security performance standards are intended to prevent;

(B)

the ability of the chemical facility to protect against security threats that are required to be addressed by applicable chemical security performance standards; and

(C)

any weaknesses in the security plan of the chemical facility;

(3)

conducted so as not to affect the actual security, physical integrity, or safety of the chemical facility or its employees while the inspection is conducted; and

(4)

conducted—

(A)

every two years in the case of a covered chemical facility assigned to tier 1; and

(B)

every four years in the case of a covered chemical facility assigned to tier 2.

(d)

Chemical security inspectors authorized

Subject to availability of appropriations for such purpose, the Secretary shall hire not fewer than 100 additional chemical facility inspectors in fiscal years 2010 and 2011 to ensure compliance with this title.

2105.

Records

(a)

Requests for Records

(1)

In general

In carrying out this title, the Secretary may require the submission of or, on presentation of credentials, may at reasonable times obtain access to and copy any records, including any records maintained in electronic format, necessary for—

(A)

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

(B)

assessing the implementation of such a site security plan.

(2)

Proper handling of records

In accessing or copying any records under paragraph (1), the Secretary shall ensure that such records are handled and secured appropriately in accordance with section 2110.

(b)

Provision of records to employee representatives

If a covered chemical facility has one or more certified or recognized bargaining agents, the owner or operator of the covered chemical facility shall provide an employee representative designated by each such bargaining agent at such facility with a copy of any security vulnerability assessment or site security plan submitted. Each employee representative shall ensure that any such assessment or plan provided to the representative is handled and secured appropriately in accordance with section 2110.

2106.

Timely sharing of threat information

(a)

Responsibilities of Secretary

Upon the receipt of information concerning a threat that is relevant to a certain covered chemical facility, the Secretary shall provide such information in a timely manner, to the maximum extent practicable under applicable authority and in the interests of national security, to the owner, operator, or security officer of that covered chemical facility, to a representative of each recognized or certified bargaining agent at the facility, if any, and to relevant State, local, and tribal authorities, including the State Homeland Security Advisor, if applicable.

(b)

Responsibilities of owner or operator

The Secretary shall require the owner or operator of a covered chemical facility to provide information concerning a threat in a timely manner about any significant security incident or threat to the covered chemical facility or any intentional or unauthorized penetration of the physical security or cyber security of the covered chemical facility whether successful or unsuccessful.

2107.

Enforcement

(a)

Review of Site security Plan

(1)

Disapproval

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

(A)

the security vulnerability assessment or site security plan does not comply with the standards, protocols, or procedures under section 2103(a)(1)(A); or

(B)

in the case of a site security plan—

(i)

the plan or the implementation of the plan is insufficient to address vulnerabilities identified in a security vulnerability assessment, site inspection, or unannounced inspection of the covered chemical facility; or

(ii)

the plan fails to meet all applicable chemical facility security performance standards.

(2)

Provision of notification of disapproval

If the Secretary disapproves the security vulnerability assessment or site security plan submitted by a covered chemical facility under this title or the implementation of a site security plan by such a chemical facility, the Secretary shall provide the owner or operator of the covered chemical facility a written notification of the disapproval within 14 days of the date on which the Secretary disapproves such assessment or plan, that—

(A)

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

(B)

requires the owner or operator of the covered chemical facility to revise the assessment or plan to address any deficiencies and, by such date as the Secretary determines is appropriate, to submit to the Secretary the revised assessment or plan.

(3)

Order for compliance

Whenever the Secretary determines that the owner or operator of a covered chemical facility has violated or is in violation of any requirement of this title or has failed or is failing to address any deficiencies in the assessment, plan, or implementation of the plan by such date as the Secretary determines to be appropriate, the Secretary, after providing an opportunity for the owner or operator of the covered chemical facility to consult with the Secretary, may—

(A)

issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both; or

(B)

commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including temporary or permanent injunction.

(4)

Order to cease operations

If the Secretary determines that the owner or operator of a covered chemical facility continues to be in noncompliance after an order for compliance is issued under paragraph (3), the Secretary may issue an order to the owner or operator of a covered chemical facility to cease operations at the facility until the owner or operator complies with such order issued under paragraph (3). Notwithstanding the preceding sentence, the Secretary may not issue an order to cease operations under this paragraph to the owner or operator of a wastewater facility.

(b)

Penalties

(1)

Civil Penalties

A court may award a civil penalty, pursuant to an order issued by the Secretary under this title, of not more than $50,000 for each day on which a violation occurs or a failure to comply continues.

(2)

Administrative penalties

The Secretary may award an administrative penalty, pursuant to an order issued under this title, of not more than $25,000 for each day on which a violation occurs or a failure to comply continues.

(3)

Applicability of penalties

Penalties under paragraphs (1) and (2) may be awarded for any violation of this title, including a violation of the whistleblower protections under section 2108.

2108.

Whistleblower protections

(a)

Establishment

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

(b)

Confidentiality

The Secretary shall keep confidential the identity of a person that submits a report under subsection (a) and any such report shall be treated as protected information under section 2110 to the extent that it does not consist of publicly available information.

(c)

Acknowledgment of receipt

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

(d)

Steps to address problems

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

(e)

Retaliation prohibited

(1)

Prohibition

No owner or operator of a covered chemical facility, for-profit or not-for-profit corporation, association, or any contractor, subcontractor or agent thereof, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or other privileges of employment because the employee (or any person acting pursuant to a request of the employee)—

(A)

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

(B)

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

(C)

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

(D)

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

(E)

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

(F)

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

(2)

Enforcement action

Any employee covered by this section who alleges discrimination by an employer in violation of paragraph (1) may bring an action governed by the rules and procedures, legal burdens of proof, and remedies applicable under subsections (d) through (h) of section 20109 of title 49, United States Code. A party may seek district court review as set forth in subsection (d)(4) of such section not later than 90 days after receiving a written final determination by the Secretary of Labor.

(f)

Prohibited personnel practices affecting the Department

(1)

In general

Notwithstanding any other provision of law, any individual holding or applying for a position of employment within the Department shall be covered by—

(A)

paragraphs (1), (8), and (9) of section 2302(b) of title 5, United States Code;

(B)

any provision of law implementing any of such paragraphs by providing any right or remedy available to an employee or applicant for employment in the civil service; and

(C)

any rule or regulation prescribed under any such paragraph.

(2)

Rule of construction

Nothing in this paragraph shall be construed to affect any rights, apart from those referred to in paragraph (1), to which an individual described in that subparagraph might otherwise be entitled to under law.

2109.

Federal preemption

This title does not preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to a covered chemical facility that is more stringent than a regulation, requirement, or standard of performance issued under this title, or otherwise impair any right or jurisdiction of any State or political subdivision thereof with respect to covered chemical facilities within that State or political subdivision thereof.

2110.

Protection of information

(a)

Prohibition of Public Disclosure of Protected Information

Protected information, as described in subsection (g), that is provided to the Department by the owner or operator of a covered chemical facility or created by the Department under the requirements of this title—

(1)

is exempt from disclosure under section 552 of title 5, United States Code; and

(2)

may not be made available pursuant to any State or local law requiring disclosure of information or records.

(b)

Information sharing

The Secretary shall facilitate and provide standards for the appropriate sharing of protected information with and between Federal, State, local, and tribal governments, emergency response providers, law enforcement officials, designated supervisory and non-supervisory covered chemical facility personnel with security, operational, or fiduciary responsibility for the facility, and designated facility employee representatives, if any.

(c)

Treatment of information in adjudicative proceedings

In a proceeding under this title, protected information described in subsection (g), or related vulnerability or security information, shall be treated in any judicial or administrative action in a manner consistent with the treatment of sensitive security information under section 525 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109-295; 120 Stat. 1321).

(d)

Other obligations unaffected

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

(e)

Submission of information to Congress

Nothing in this title shall permit or authorize the withholding of information from Congress or any committee or subcommittee thereof.

(f)

Disclosure of Independently Furnished Information

Nothing in this title shall affect any authority or obligation of a Federal, State, or local agency to protect or disclose any record or information that the Federal, State, or local government agency obtains from a chemical facility under any other law.

(g)

Protected Information

(1)

In general

For purposes of this title, protected information is the following:

(A)

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

(B)

Portions of the following documents, records, orders, notices, or letters that the Secretary determines would be detrimental to chemical facility security if disclosed and that are developed by the Secretary or the owner or operator of a covered chemical facility exclusively for the purposes of this title:

(i)

Documents directly related to the Secretary’s review and approval or disapproval of vulnerability assessments and site security plans under this title.

(ii)

Documents directly related to inspections and audits under this title.

(iii)

Orders, notices, or letters regarding the compliance of a covered chemical facility with the requirements of this title.

(iv)

Information provided to or created by the Secretary under section subsection (b) or (c) of section 2102.

(C)

Other information developed exclusively for the purposes of this title that the Secretary determines, if disclosed, would be detrimental to chemical facility security.

(2)

Exclusions

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

(A)

information that is otherwise publicly available, including information that is required to be made publicly available under any law;

(B)

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

(C)

information that, if disclosed, would not be detrimental to the security of a chemical facility, including aggregate regulatory data that the Secretary determines is appropriate to describe facility compliance with the requirements of this title and the Secretary’s implementation of such requirements.

2111.

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 implementing 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 covered chemical facility assigned to tier 1 or tier 2 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 tier 1 or tier 2 or the elevation of an existing covered chemical facility to tier 1 or tier 2;

(B)

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

(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 its location;

(D)

would not significantly or demonstrably reduce the operations of the covered chemical facility or result in a reduction of the workforce of the covered chemical facility; and

(E)

would not significantly transfer security risk to the transportation infrastructure of the United States.

(2)

Analysis required

(A)

In general

The Secretary may not require facilities to implement methods to reduce the consequences of a terrorist attack until the Secretary conducts a detailed analysis of the effects of such mandatory implementation. Such analysis shall consider—

(i)

the costs companies and facilities will incur as a result of mandatory implementation;

(ii)

any resultant loss of employment sustained; and

(iii)

any loss of production due to implementation.

(B)

Consultation

In completing the analysis required by subparagraph (A), the Secretary shall consult with relevant stakeholder groups, including—

(i)

experts from the chemical industry;

(ii)

representatives of covered chemical facilities;

(iii)

members of the academic community; and

(iv)

appropriate representatives from organized labor.

(C)

Report

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 detailing the Secretary’s analysis required by this subsection.

(3)

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 therefor.

(B)

Review

Not later than 60 days after the receipt of an explanation submitted under subparagraph (A), the Secretary, after consulting with the owner or operator of the covered chemical facility who submitted such explanation, 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.

(4)

Appeals

(A)

In general

An owner or operator of a covered chemical facility who is unable to comply with the Secretary’s determination under paragraph (3)(B) may request a de novo hearing before an administrative law judge of the Department of Homeland Security within 30 days of receipt of the Secretary’s determination. An owner or operator of a covered facility requesting such a hearing shall not be required to begin implementation otherwise required by paragraph (3)(B).

(B)

Hearing

To the extent necessary for the decision in a proceeding commenced under this paragraph, the administrative law judge shall decide all relevant questions of law and regulation. The administrative law judge shall set aside the Secretary’s determination if it is determined to be—

(i)

arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law;

(ii)

not made consistent with required procedures; or

(iii)

not supported by substantial evidence.

(C)

Time frame for decisions

The decision of the administrative law judge shall be rendered within 30 days of the de novo hearing and shall constitute final action by the Secretary.

(D)

Action upon decision

If the administrative law judge—

(i)

concurs with the Secretary’s determination under paragraph (1), the owner or operator of a covered chemical facility shall begin to implement the methods to reduce the consequences of a terrorist attack required by the Secretary not later than 180 days following the decision of the administrative law judge; or

(ii)

sets aside the Secretary’s determination under such paragraph, the owner or operator of a covered chemical facility shall not be required to comply with such methods.

(c)

Provision of Information on Alternative Approaches

(1)

In General

The Secretary shall make available information to chemical facilities on the use and availability of methods to reduce the consequences of a chemical facility terrorist incident.

(2)

Information to be included

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

(A)

general and specific types of such methods;

(B)

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

(C)

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

(D)

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

(E)

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

(F)

the availability of technical assistance and best practices; and

(G)

such other matters as the Secretary determines is appropriate.

(3)

Public availability

Information made available under this subsection shall not identify any specific chemical facility, violate the protection of information provisions under section 2110, or disclose any proprietary information.

(d)

Funding for methods To reduce the consequences of a terrorist attack

The Secretary may make funds available to help defray the cost of implementing methods to reduce the consequences of a terrorist attack to covered chemical facilities that are required by the Secretary to implement such methods.

(e)

Applicability to small business concerns

(1)

Report

(A)

In general

Not later than one year after the date of the enactment of this Act, the Secretary shall submit a report to the Committee on Homeland Security of the House of Representatives that reviews and assesses the security issues associated with exempting from this section businesses that are small business concerns, as determined by the Administrator of the Small Business Administration pursuant to the regulations set forth in 13 C.F.R. 121.201, as in effect on January 1, 2009.

(B)

Contents

The report shall include—

(i)

an analysis of the potential issues relevant to exempting small business concerns, as defined in subparagraph (A), from the requirements of this section, including the potential effect of such an exemption on the security of chemical facilities in the United States and the economic effect of applying this section to such small business concerns; and

(ii)

any other elements the Secretary determines to be relevant or appropriate.

(2)

Determination of applicability

Upon submission of the report required in paragraph (1), the Secretary shall determine whether a small business concern, as defined in paragraph (1)(A), shall be subject to or exempt from this section.

2112.

Applicability

This title shall not apply to—

(1)

any chemical facility that is owned and operated by the Secretary of Defense;

(2)

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

(3)

all or a specified portion of any chemical facility that—

(A)

is subject to regulation by the Nuclear Regulatory Commission (hereinafter in this paragraph referred to as the Commission) or a State that has entered into an agreement with the Commission under section 274 b. of the Atomic Energy Act of 1954 (42 U.S.C. 2021 b.);

(B)

has had security controls imposed by the Commission or State, whichever has the regulatory authority, on the entire facility or the specified portion of the facility; and

(C)

has been designated by the Commission, after consultation with the State, if any, that regulates the facility, and the Secretary, as excluded from the application of this title.

2113.

Savings clause

(a)

In general

Nothing in this title shall affect or modify in any way any obligation or liability of any person under any other Federal law, including section 112 of the Clean Air Act (42 U.S.C. 7412), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Occupational Safety and Health Act (29 U.S.C. 651 et seq.), the National Labor Relations Act (29 U.S.C. 151 et seq.), the Emergency Planning and Community Right to Know Act of 1996 (42 U.S.C. 11001 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Maritime Transportation Security Act of 2002 (Public Law 107–295), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), and the Toxic Substances Control Act (15 U.S.C. 2601 et seq.).

(b)

Other requirements

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

2114.

Office of Chemical Facility Security

(a)

In general

There is established in the Department an Office of Chemical Facility Security, headed by a Director, who shall be a member of the Senior Executive Service in accordance with subchapter VI of chapter 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 of the Office of Chemical Facility Security shall have professional qualifications and experience necessary for effectively directing the Office of Chemical Facility Security and carrying out the requirements of this title, including a demonstrated knowledge of physical infrastructure protection, cybersecurity, chemical facility security, hazard analysis, chemical process engineering, chemical process safety reviews, or other such qualifications that the Secretary determines to be necessary.

(c)

Selection process

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

2115.

Security background checks of covered individuals at certain chemical facilities

(a)

Regulations issued by the Secretary

(1)

In general

(A)

Requirement

The Secretary shall issue regulations to require covered chemical facilities to establish personnel surety for individuals described in subparagraph (B) by conducting appropriate security background checks and ensuring appropriate credentials for unescorted visitors and chemical facility personnel, including permanent and part-time personnel, temporary personnel, and contract personnel, including—

(i)

measures designed to verify and validate identity;

(ii)

measures designed to check criminal history;

(iii)

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

(iv)

measures designed to identify people with terrorist ties.

(B)

Individuals described

For purposes of subparagraph (A), an individual described in this subparagraph is an individual with access to restricted areas or critical assets of a covered chemical facility, including—

(i)

a covered individual who has unescorted access to restricted areas or critical assets or who is provided with a copy of a security vulnerability assessment or site security plan;

(ii)

a person associated with a covered chemical facility who is provided with a copy of a security vulnerability assessment or site security plan; or

(iii)

a person who is determined by the Secretary to require a security background check based on chemical facility security performance standards.

(2)

Regulations

The regulations required by paragraph (1) shall set forth—

(A)

the scope of the security background checks, including the types of disqualifying offenses and the time period covered for each person subject to a security background check under paragraph (1);

(B)

the processes to conduct the security background checks;

(C)

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

(D)

a redress process for an adversely-affected person consistent with subsections (b) and (d); and

(E)

a prohibition on an owner or operator of a covered chemical facility unreasonably misrepresenting to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check.

(b)

Requirements

Upon issuance of regulations under subsection (a), the Secretary shall prohibit the owner or operator of a covered chemical facility from making an adverse employment decision, including removal or suspension of the employee, due to such regulations with respect to such person unless such person—

(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 covered chemical facility performs the security background check;

(3)

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

(4)

is determined by the Secretary to be on the consolidated terrorist watchlist; or

(5)

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

(c)

Termination of employment

If an owner or operator of a chemical facility finds that pursuant to a security background check a covered individual is not legally authorized to work in the United States, the owner or operator shall cease to employ the covered individual subject to the redress process under subsection (d).

(d)

Redress process

Upon the issuance of regulations under subsection (a), the Secretary shall—

(1)

require an adequate and prompt redress process for a person subject to a security background check under subsection (a)(1) who is subjected to an adverse employment decision, including removal or suspension of the employee, due to such regulations that is consistent with the appeals and waiver processes established for applicants for 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 person subject to a security background check under subsection (a)(1), should the Secretary determine that the owner or operator of a covered chemical facility wrongfully made an adverse employment decision regarding such person 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 the person subject to a security background check under subsection (a)(1) receives the person’s full wages and benefits until all appeals and waiver procedures are exhausted.

(e)

Restrictions on use and maintenance of information

Information obtained under this section by the Secretary or the owner or operator of a covered chemical facility shall be handled as follows:

(1)

Such information may not be made available to the public.

(2)

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

(3)

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

(4)

The Secretary may share such information with other Federal, State, local, and tribal law enforcement agencies.

(f)

Rights and responsibilities

Nothing in this section shall be construed to abridge any right or responsibility of a person subject to a security background check under subsection (a)(1) or an owner or operator of a covered chemical facility under any other Federal, State, local, or tribal law or collective bargaining agreement.

(g)

Preemption

Nothing in this section shall be construed to preempt, alter, or affect a Federal, State, local, or tribal law that requires criminal history background checks, checks on the authorization of an individual to work in the United States, or other background checks of persons subject to security background checks under subsection (a)(1).

(h)

Definition of security background check

The term security background check means a review at no cost to any person subject to a security background check under subsection (a)(1) of the following for the purpose of identifying individuals who may pose a threat to chemical facility security, to national security, or of terrorism:

(1)

Relevant databases to verify and validate identity.

(2)

Relevant criminal history databases.

(3)

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

(4)

The consolidated terrorist watchlist.

(5)

Other relevant information or databases, as determined by the Secretary.

(i)

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.

2116.

Citizen suits

(a)

In general

Except as provided in subsection (c), any person may commence a civil action on the person’s own behalf—

(1)

against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this title; or

(2)

against the Secretary, if there is an alleged failure of the Secretary to perform any act or duty under this title that is not discretionary for the Secretary.

(b)

Court of jurisdiction

(1)

In general

Any action under subsection (a)(1) shall be brought in the district court for the district in which the alleged violation occurred. Any action brought under subsection (a)(2) may be brought in the district court for the district in which the alleged violation occurred or in the United States District Court of the District of Columbia.

(2)

Relief

The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce the standard, regulation, condition, requirement, prohibition, or order, referred to in subsection (a)(1), to order such person to take such other action as may be necessary, or both, or to order the Secretary to perform the act or duty referred to in subsection (a)(2), as the case may be, and to apply any appropriate civil penalties under section 2107.

(c)

Actions prohibited

No action may be commenced under subsection (a)—

(1)

prior to 120 days after the date on which the person commencing the action has given notice of the alleged violation to—

(A)

the Secretary; and

(B)

in the case of an action under subsection (a), any alleged violator of such standard, regulation, condition, requirement, prohibition, or order; or

(2)

if the Secretary has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State, or has issued an administrative order, to require compliance with such standard, regulation, condition, requirement, prohibition, or order.

(d)

Notice

Notice under this section shall be given in such manner as the Secretary shall prescribe by regulation.

(e)

Intervention

In any action under this section the Secretary, if not a party, may intervene as a matter of right.

(f)

Costs

The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.

(g)

Other rights preserved

Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law.

2117.

Annual report to Congress

(a)

Annual Report

Not later than one year after the date of the enactment of this title, annually thereafter for the next four years, and biennially thereafter, the Secretary shall submit to the Committee on Homeland Security and the Committee on Energy and Commerce of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and the Committee on Environment and Public Works of the Senate a report on progress in achieving compliance with this title. Each such report shall include the following:

(1)

A qualitative discussion of how covered chemical facilities, differentiated by tier, have reduced the risks of chemical facility terrorist incidents at such facilities, including—

(A)

a generalized summary of measures implemented by covered chemical facilities in order to meet each risk-based chemical facility performance standard established by this title, and those that the facilities already had in place—

(i)

in the case of the first report under this section, before the issuance of the final rule implementing the regulations known as the Chemical Facility Anti-Terrorism Standards, issued on April 9, 2007; and

(ii)

in the case of each subsequent report, since the submittal of the most recent report submitted under this section; and

(B)

any other generalized summary the Secretary deems appropriate to describe the measures covered chemical facilities are implementing to comply with the requirements of this title.

(2)

A quantitative summary of how the covered chemical facilities, differentiated by tier, are complying with the requirements of this title during the period covered by the report and how the Secretary is implementing and enforcing such requirements during such period, including—

(A)

the number of chemical facilities that provided the Secretary with information about possessing substances of concern, as described in section 2102(b)(2);

(B)

the number of covered chemical facilities assigned to each tier;

(C)

the number of security vulnerability assessments and site security plans submitted by covered chemical facilities;

(D)

the number of security vulnerability assessments and site security plans approved and disapproved by the Secretary;

(E)

the number of covered chemical facilities without approved security vulnerability assessments or site security plans;

(F)

the number of chemical facilities that have been assigned to a different tier or are no longer regulated by the Secretary due to implementation of a method to reduce the consequences of a terrorist attack;

(G)

the number of orders for compliance issued by the Secretary;

(H)

the administrative penalties assessed by the Secretary for non-compliance with the requirements of this title;

(I)

the civil penalties assessed by the court for non-compliance with the requirements of this title; and

(J)

any other regulatory data the Secretary deems appropriate to describe facility compliance with the requirements of this title and the Secretary’s implementation of such requirements.

(b)

Public availability

A report submitted under this section shall be made publicly available.

2118.

Authorization of appropriations

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

(1)

$325,000,000 for fiscal year 2011, of which $100,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack;

(2)

$300,000,000 for fiscal year 2012, of which $75,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack; and

(3)

$275,000,000 for fiscal year 2013, of which $50,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack.

2119.

Notification system to address public concerns

(a)

Establishment

The Secretary shall establish a notification system, which provides any individual the ability to report a suspected security deficiency or suspected non-compliance with this title. Such notification system shall include the ability to report the suspected security deficiency or non-compliance via telephonic and internet-based means.

(b)

Acknowledgment

The Secretary shall respond in a timely manner, but in no case exceed 30 days, to any report received through the notification system established under subsection (a).

(c)

Steps to address problems

The Secretary shall review the report of suspected security deficiency and shall, as necessary, take appropriate enforcement action authorized under section 2107 of this title.

(d)

Feedback required

Upon request, the Secretary shall provide the individual who reported the suspected security deficiency or non-compliance a written response as to the Secretary’s findings and what, if any, compliance action was taken.

(e)

Inspector general report required

The Inspector General for the Department of Homeland Security shall provide a report to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Government Affairs of the Senate on the number of reports received by the notification system established under subsection (a) and the Secretary’s disposition of such reports.

.

(b)

Clerical Amendment

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

Title XXI—Regulation of Security Practices at Chemical Facilities

Sec. 2101. Definitions.

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

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

Sec. 2104. Site inspections.

Sec. 2105. Records.

Sec. 2106. Timely sharing of threat information.

Sec. 2107. Enforcement.

Sec. 2108. Whistleblower protections.

Sec. 2109. Federal preemption.

Sec. 2110. Protection of information.

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

Sec. 2112. Applicability.

Sec. 2113. Savings clause.

Sec. 2114. Office of Chemical Facility Security.

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

Sec. 2116. Citizen suits.

Sec. 2117. Annual report to Congress.

Sec. 2118. Authorization of appropriations.

Sec. 2119. Notification system to address public concerns.

.

(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)

Treatment of CFATS regulations

(1)

Sense of Congress

It is the sense of Congress that the Secretary of Homeland Security was granted statutory authority under section 550 of the Department of Homeland Security Appropriations Act (Public Law 109-295) to regulate security practices at chemical facilities until October 1, 2009. Pursuant to that section the Secretary prescribed regulations known as the Chemical Facility Anti-Terrorism Standards, or CFATS.

(2)

Use of current regulations

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

(3)

Amendment of CFATS

The Secretary shall amend the regulations known as the Chemical Facility Anti-Terrorism Standards to ensure that such regulations fulfill the requirements of this Act and the amendments made by this Act, to the extent that the requirements of this Act and the amendments made by this Act differ from the requirements of such regulations, as in effect on the date of the enactment of this Act.

(4)

Use of tools developed for CFATS

In carrying out this Act and the amendments made by this Act, to the extent determined appropriate by the Secretary, the Secretary may use such rules or tools developed for purposes of the regulations known as the Chemical Facility Anti-Terrorism Standards, including the list of substances of concern, usually referred to as Appendix A and the chemical security assessment tool (which includes facility registration, a top-screen questionnaire, a security vulnerability assessment tool, a site security plan template, and a chemical vulnerability information repository).

(e)

Facilities covered by CFATS

The owner or operator of a covered chemical facility, who, before the effective date of the final regulations issued under title XXI of the Homeland Security Act of 2002, as added by subsection (a), submits a security vulnerability assessment or site security plan under the regulations known as CFATS regulations, as in effect immediately before the enactment of this Act, shall be required to update or amend the facility’s security vulnerability assessment and site security plan to reflect any additional requirements of this Act or the amendments made by this Act, according to a timeline established by the Secretary.

(f)

Consultation with other persons

In developing and carrying out the regulations under title XXI of the Homeland Security Act of 2002, as added by subsection (a), the Secretary shall consult with the Administrator of the Environmental Protection Agency, and other persons, as appropriate, regarding—

(1)

the designation of substances of concern;

(2)

methods to reduce the consequences of a terrorist attack;

(3)

security at co-owned or co-operated drinking water and wastewater facilities;

(4)

the treatment of protected information; and

(5)

such other matters as the Secretary determines necessary.

(g)

Deadline for regulations

(1)

Proposed rule

The Secretary of Homeland Security shall promulgate a proposed rule to fulfill the requirements of title XXI of the Homeland Security Act of 2002, as added by subsection (a), not later than 6 months after the date of the enactment of this Act.

(2)

Final rule

The Secretary shall, after proper notice and opportunity for public comment, promulgate a final rule to fulfill the requirements of such title not later than 18 months after the date of the enactment of this Act.

(h)

Review of designation of sodium fluoroacetate as a substance of concern

The Secretary of Homeland Security shall review the designation of sodium fluoroacetate as a substance of concern pursuant to subparagraph (A) of paragraph (1) of subsection (d) of section 2102 of the Homeland Security Act of 2002, as added by subsection (a), by the earlier of the following dates:

(1)

The date of the first periodic review conducted pursuant to such subsection after the date of the enactment of this Act.

(2)

The date that is one year after the date of the enactment of this Act.

1.

Short title

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

2.

Findings and purpose

(a)

Findings

Congress makes the following findings:

(1)

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

(2)

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

(3)

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

(4)

The Secretary of Homeland Security issued interim final regulations called the Chemical Facility Anti-Terrorism Standards, which became effective on June 8, 2007.

(b)

Purpose

The purpose of this Act is to modify and make permanent the authority of the Secretary of Homeland Security to regulate security practices at chemical facilities.

3.

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

(a)

In General

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

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 the owner or operator of the facility possesses or plans to possess at any relevant point in time a substance of concern; or

(B)

that meets other risk-related criteria identified by the Secretary.

(2)

The term chemical facility security performance standards means risk-based standards established by the Secretary to ensure or enhance the security of a chemical facility against a chemical facility terrorist incident that are designed to address the following:

(A)

Restricting the area perimeter.

(B)

Securing site assets.

(C)

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

(i)

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

(ii)

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

(D)

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

(i)

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

(ii)

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

(iii)

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

(iv)

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

(E)

Securing and monitoring the shipping, receipt, and storage of a substance of concern for the chemical facility.

(F)

Deterring theft or diversion of a substance of concern.

(G)

Deterring insider sabotage.

(H)

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

(I)

Developing and exercising an internal emergency plan for owners, operators, and covered individuals of a covered chemical facility for responding to chemical facility terrorist incidents at the facility. Any such plan shall include the provision of appropriate information to any local emergency planning committee, local law enforcement officials, and emergency response providers to ensure an effective, collective response to terrorist incidents.

(J)

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

(i)

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

(ii)

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

(iii)

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

(K)

Ensuring mandatory annual security training, exercises, and drills of chemical facility personnel appropriate to their roles, responsibilities, and access to chemicals, including participation by local law enforcement, local emergency response providers, appropriate supervisory and non-supervisory facility employees and their employee representatives, if any.

(L)

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

(i)

measures designed to verify and validate identity;

(ii)

measures designed to check criminal history;

(iii)

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

(iv)

measures designed to identify people with terrorist ties.

(M)

Escalating the level of protective measures for periods of elevated threat.

(N)

Specific threats, vulnerabilities, or risks identified by the Secretary for that chemical facility.

(O)

Reporting of significant security incidents to the Department and to appropriate local law enforcement officials.

(P)

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

(Q)

Establishing one or more officials and an organization responsible for—

(i)

security;

(ii)

compliance with the standards under this paragraph;

(iii)

serving as the point of contact for incident management purposes with Federal, State, local, and tribal agencies, law enforcement, and emergency response providers; and

(iv)

coordination with Federal, State, local, and tribal agencies, law enforcement, and emergency response providers regarding plans and security measures for the collective response to a chemical facility terrorist incident.

(R)

Maintaining appropriate records relating to the security of the facility, including a copy of the most recent security vulnerability assessment and site security plan at the chemical facility.

(S)

Assessing and, as appropriate, utilizing methods to reduce the consequences of a terrorist attack.

(T)

Methods to recover or mitigate the release of a substance of concern in the event of a chemical facility terrorist incident.

(U)

Any additional security performance standards the Secretary may specify.

(3)

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

(A)

the release of a substance of concern from a chemical facility;

(B)

the theft, misappropriation, or misuse of a substance of concern from a chemical facility; or

(C)

the sabotage of a chemical facility or a substance of concern at a chemical facility.

(4)

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

(5)

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

(6)

The term covered chemical facility means a chemical facility that meets the criteria of section 2102(b)(1).

(7)

The term environment means—

(A)

the navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.); and

(B)

any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.

(8)

The term owner or operator with respect to a facility means any of the following:

(A)

The person who owns the facility.

(B)

The person who has responsibility for daily operation of the facility.

(C)

The person who leases the facility.

(9)

The term person means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body and shall include each department, agency, and instrumentality of the United States.

(10)

The term release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).

(11)

The term substance of concern means a chemical substance in quantity and form that is so designated by the Secretary under section 2102(a).

(12)

The term method to reduce the consequences of a terrorist attack means a measure used at a chemical facility that reduces or eliminates the potential consequences of a chemical facility terrorist incident, including—

(A)

the elimination or reduction in the amount of a substance of concern possessed or planned to be possessed by an owner or operator of a covered chemical facility through the use of alternate substances, formulations, or processes;

(B)

the modification of pressures, temperatures, or concentrations of a substance of concern; and

(C)

the reduction or elimination of onsite handling of a substance of concern through improvement of inventory control or chemical use efficiency.

2102.

Risk-based designation and ranking of chemical facilities

(a)

Substances of Concern

(1)

Designation by the secretary

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

(2)

Matters for consideration

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

(b)

List of covered Chemical Facilities

(1)

Criteria for list of facilities

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

(A)

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

(B)

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

(C)

The proximity of the chemical facility to large population centers.

(2)

Submission of information

The Secretary may require the submission of information with respect to the quantities of substances of concern that an owner or operator of a chemical facility possesses or plans to possess in order to determine whether to designate a chemical facility as a covered chemical facility for purposes of this title.

(c)

Assignment of Chemical Facilities to Risk-Based Tiers

(1)

Assignment

The Secretary shall assign each covered chemical facility to one of four risk-based tiers established by the Secretary, with tier one representing the highest degree of risk and tier four the lowest degree of risk.

(2)

Provision of information

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

(3)

Notification

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

(A)

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

(B)

Information related to the criticality of the covered chemical facility.

(C)

The proximity or interrelationship of the covered chemical facility to other critical infrastructure.

(d)

Requirement for review

The Secretary—

(1)

shall periodically review—

(A)

the designation of a substance of concern and the threshold quantity under subsection (a)(1); and

(B)

the criteria under subsection (b)(1); and

(2)

may at any time determine whether a chemical facility is a covered chemical facility or change the tier to which such a facility is assigned under subsection (c)(1).

(e)

Provision of threat-related information

In order to effectively assess the vulnerabilities to a covered chemical facility, the Secretary shall provide to the owner, operator, or security officer of a covered chemical facility threat information regarding probable threats to the facility and methods that could be used in a chemical facility terrorist incident.

2103.

Security vulnerability assessments and site security plans

(a)

In general

(1)

Requirement

The Secretary shall—

(A)

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

(B)

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

(i)

conduct an assessment of the vulnerability of the covered chemical facility to a range of chemical facility terrorist incidents, including an incident that results in a worst-case release of a substance of concern;

(ii)

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

(iii)

include at least one supervisory and at least one non-supervisory employee of the covered chemical facility, and at least one employee representative, from each bargaining agent at the covered chemical facility, if any, in developing the security vulnerability assessment and site security plan required under this section;

(C)

set deadlines, by tier, for the completion of security vulnerability assessments and site security plans;

(D)

upon request, as necessary, and to the extent that resources permit, provide technical assistance to a covered chemical facility conducting a vulnerability assessment or site security plan required under this section;

(E)

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

(i)

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

(ii)

any material modification to a covered chemical facility’s operations or site that may affect the security vulnerability assessment or site security plan submitted by the covered chemical facility;

(F)

require the owner or operator of a covered chemical facility to review and resubmit a security vulnerability assessment or site security plan not less frequently than once every 5 years; and

(G)

not later than 180 days after the date on which the Secretary receives a security vulnerability assessment or site security plan under this title, review and approve or disapprove such assessment or plan.

(2)

Inherently governmental function

The approval or disapproval of a security vulnerability assessment or site security plan under this section is an inherently governmental function.

(b)

Participation in preparation of security vulnerability assessments or site security plans

Any person selected by the owner or operator of a covered chemical facility or by a certified or recognized bargaining agent of a covered chemical facility to participate in the development of the security vulnerability assessment or site security plan required under this section for such covered chemical facility shall be permitted to participate if the person possesses knowledge, experience, training, or education relevant to the portion of the security vulnerability assessment or site security plan on which the person is participating.

(c)

Risk-based chemical security performance standards

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

(1)

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

(2)

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

(d)

Co-Located Chemical Facilities

The Secretary may allow an owner or operator of a covered chemical facility that is located geographically close to another covered chemical facility to develop and implement coordinated security vulnerability assessments and site security plans.

(e)

Alternate security programs satisfying requirements for security vulnerability assessment and site security plan

(1)

Acceptance of program

In response to a request by an owner or operator of a covered chemical facility, the Secretary may accept an alternate security program submitted by the owner or operator of the facility as a component of the security vulnerability assessment or site security plan required under this section, if the Secretary determines that such alternate security program, in combination with other components of the security vulnerability assessment and site security plan submitted by the owner or operator of the facility—

(A)

meets the requirements of this title and the regulations promulgated pursuant to this title;

(B)

provides an equivalent level of security to the level of security established pursuant to the regulations promulgated under this title; and

(C)

includes employee participation as required under subsection (a)(1)(B)(iii).

(2)

Secretarial review required

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

(A)

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

(B)

to approve or disapprove each such assessment or plan on an individual basis according to the deadlines established under subsection (a).

(3)

Covered facility’s obligations unaffected

Nothing in this subsection shall relieve any covered chemical facility of the obligation and responsibility to comply with all of the requirements of this title.

(4)

Personnel surety alternate security program

In response to an application from a non-profit, personnel surety accrediting organization acting on behalf of, and with written authorization from, the owner or operator of a covered chemical facility, the Secretary may accept a personnel surety alternate security program that meets the requirements of section 2115 and provides for a background check process that is—

(A)

expedited, affordable, reliable, and accurate;

(B)

fully protective of the rights of covered individuals through procedures that are consistent with the privacy protections available under the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.); and

(C)

is a single background check consistent with a risk-based tiered program.

(f)

Other Authorities

(1)

Regulation of maritime facilities

(A)

Risk-Based Tiering

Notwithstanding any other provision of law, the owner or operator of a chemical facility required to submit a facility security plan under section 70103(c) of title 46, United States Code, shall be required to submit information to the Secretary necessary to determine whether to designate such a facility as a covered chemical facility and to assign the facility to a risk-based tier under section 2102 of this title.

(B)

Additional Measures

In the case of a facility designated as a covered chemical facility under this title that is also regulated under section 70103(c) of title 46, United States Code, the Commandant of the Coast Guard, after consultation with the Secretary, shall require the owner or operator of such facility to update the vulnerability assessments and facility security plans required under that section, if necessary, to ensure an equivalent level of security for substances of concern, including the requirements under section 2111, in the same manner as other covered chemical facilities in this title.

(C)

Personnel surety

(i)

Exception

A facility designated as a covered chemical facility under this title that has had its facility security plan approved under section 70103(c) of title 46, United States Code, shall not be required to update or amend such plan in order to meet the requirements of section 2115 of this title.

(ii)

Equivalent access

An individual described in section 2115(a)(1)(B) who has been granted access to restricted areas or critical assets by the owner or operator of a facility for which a security plan is required to be submitted under section 70103(c) of title 46, United States Code, may be considered by that owner or operator to have satisfied the requirement for passing a security background check otherwise required under section 2115 for purposes of granting the individual access to restricted areas or critical assets of a covered chemical facility that is owned or operated by the same owner or operator.

(D)

Information Sharing and Protection

Notwithstanding section 70103(d) of title 46, United States Code, the Commandant of the Coast Guard, after consultation with the Secretary, shall apply the information sharing and protection requirements in section 2110 of this title to a facility described in subparagraph (B).

(E)

Enforcement

The Secretary shall establish, by rulemaking, procedures to ensure that an owner or operator of a covered chemical facility required to update the vulnerability assessment and facility security plan for the facility under subparagraph (B) is in compliance with the requirements of this title.

(F)

Formal agreement

The Secretary shall require the Office of Infrastructure Protection and the Coast Guard to enter into a formal agreement detailing their respective roles and responsibilities in carrying out the requirements of this title. Such agreement shall ensure that the enforcement and compliance requirements under this title and section 70103 of title 46, United States Code, are not conflicting or duplicative.

(2)

Coordination of storage licensing or permitting requirement

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

(g)

Role of employees

(1)

Description of role required

Site security plans required under this section shall describe the roles or responsibilities that covered individuals are expected to perform to deter or respond to a chemical facility terrorist incident.

(2)

Annual training for employees

The owner or operator of a covered chemical facility required to submit a site security plan under this section shall annually provide each covered individual with a role or responsibility referred to in paragraph (1) at the facility with a minimum of 8 hours of training. Such training shall, as relevant to the role or responsibility of such covered individual—

(A)

include an identification and discussion of substances of concern;

(B)

include a discussion of possible consequences of a chemical facility terrorist incident;

(C)

review and exercise the covered chemical facility’s site security plan, including any requirements for differing threat levels;

(D)

include a review of information protection requirements;

(E)

include a discussion of physical and cyber security equipment, systems, and methods used to achieve chemical security performance standards;

(F)

allow training with other relevant participants, including Federal, State, local, and tribal authorities, and first responders, where appropriate;

(G)

use existing national voluntary consensus standards, chosen jointly with employee representatives, if any;

(H)

allow instruction through government training programs, chemical facilities, academic institutions, nonprofit organizations, industry and private organizations, employee organizations, and other relevant entities that provide such training;

(I)

use multiple training media and methods; and

(J)

include a discussion of appropriate emergency response procedures, including procedures to mitigate the effects of a chemical facility terrorist incident.

(3)

Equivalent training

During any year, with respect to any covered individual with roles or responsibilities under paragraph (1), an owner or operator of a covered chemical facility may satisfy any of the training requirements for such covered individual under subparagraphs (A), (B), (C), (D), (E), or (J) of paragraph (2) through training that such owner or operator certifies, in a manner prescribed by the Secretary, as equivalent.

(4)

Worker training grant program

(A)

Authority

The Secretary shall establish a grant program to award grants to or enter into cooperative agreements with eligible entities to provide for the training and education of covered individuals with roles or responsibilities described in paragraph (1) and first responders and emergency response providers that would respond to a chemical facility terrorist incident.

(B)

Administration

The Secretary shall seek to enter into an agreement with the National Institute for Environmental Health Sciences to make and administer grants or cooperative agreements under this paragraph.

(C)

Use of funds

The recipient of funds under this paragraph shall use such funds to provide for the training and education of covered individuals with roles or responsibilities described in paragraph (1), first responders, and emergency response providers, including—

(i)

the annual mandatory training specified in paragraph (2); and

(ii)

other appropriate training to protect nearby persons, property, critical infrastructure, or the environment from the effects of a chemical facility terrorist incident.

(D)

Eligible entities

For purposes of this paragraph, an eligible entity is a nonprofit organization with demonstrated experience in implementing and operating successful worker or first responder health and safety or security training programs.

(h)

State, Regional, or Local governmental entities

No covered chemical facility shall be required under State, local, or tribal law to provide a vulnerability assessment or site security plan described under this title to any State, regional, local, or tribal government entity solely by reason of the requirement under subsection (a) that the covered chemical facility submit such an assessment and plan to the Secretary.

2104.

Site inspections

(a)

Right of Entry

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

(b)

Inspections and Verifications

(1)

In general

The Secretary shall, at such time and place as the Secretary determines to be reasonable and appropriate, conduct chemical facility security inspections and verifications.

(2)

Requirements

To ensure and evaluate compliance with this title, including any regulations or requirements adopted by the Secretary in furtherance of the purposes of this title, in conducting an inspection or verification under paragraph (1), the Secretary shall have access to the owners, operators, employees, and employee representatives, if any, of a covered chemical facility.

(c)

Unannounced inspections

In addition to any inspection conducted pursuant to subsection (b), the Secretary shall require covered chemical facilities assigned to tier 1 and tier 2 under section 2102(c)(1) to undergo unannounced facility inspections. The inspections required under this subsection shall be—

(1)

conducted without prior notice to the facility;

(2)

designed to evaluate at the chemical facility undergoing inspection—

(A)

the ability of the chemical facility to prevent a chemical facility terrorist incident that the site security plan of the facility is intended to prevent;

(B)

the ability of the chemical facility to protect against security threats that are required to be addressed by the site security plan of the facility; and

(C)

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

(3)

conducted so as not to affect the actual security, physical integrity, safety, or regular operations of the chemical facility or its employees while the inspection is conducted; and

(4)

conducted—

(A)

every two years in the case of a covered chemical facility assigned to tier 1; and

(B)

every four years in the case of a covered chemical facility assigned to tier 2.

(d)

Chemical facility inspectors authorized

During the period of fiscal years 2011 and 2012, subject to the availability of appropriations for such purpose, the Secretary shall increase by not fewer than 100 the total number of chemical facility inspectors within the Department to ensure compliance with this title.

(e)

Confidential communications

The Secretary shall offer non-supervisory employees the opportunity to confidentially communicate information relevant to the employer’s compliance or non-compliance with this title, including compliance or non-compliance with any regulation or requirement adopted by the Secretary in furtherance of the purposes of this title. An employee representative of each certified or recognized bargaining agent at the covered chemical facility, if any, or, if none, a non-supervisory employee, shall be given the opportunity to accompany the Secretary during a physical inspection of such covered chemical facility for the purpose of aiding in such inspection, if representatives of the owner or operator of the covered chemical facility will also be accompanying the Secretary on such inspection.

2105.

Records

(a)

Request for records

In carrying out this title, the Secretary may require submission of, or on presentation of credentials may at reasonable times obtain access to and copy, any records, including any records maintained in electronic format, necessary for—

(1)

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

(2)

assessing the implementation of such a site security plan.

(b)

Proper handling of records

In accessing or copying any records under subsection (a), the Secretary shall ensure that such records are handled and secured appropriately in accordance with section 2110.

2106.

Timely sharing of threat information

(a)

Responsibilities of Secretary

Upon the receipt of information concerning a threat that is relevant to a certain covered chemical facility, the Secretary shall provide such information in a timely manner, to the maximum extent practicable under applicable authority and in the interests of national security, to the owner, operator, or security officer of that covered chemical facility and to a representative of each recognized or certified bargaining agent at the facility, if any.

(b)

Responsibilities of owner or operator

The Secretary shall require the owner or operator of a covered chemical facility to provide information concerning a threat in a timely manner about any significant security incident or threat to the covered chemical facility or any intentional or unauthorized penetration of the physical security or cyber security of the covered chemical facility whether successful or unsuccessful.

2107.

Enforcement

(a)

Review of Site security Plan

(1)

Disapproval

The Secretary shall disapprove a security vulnerability assessment or site security plan submitted under this title if the Secretary determines, in his or her discretion, that—

(A)

the security vulnerability assessment or site security plan does not comply with the standards, protocols, or procedures under section 2103(a)(1)(A); or

(B)

in the case of a site security plan—

(i)

the plan or the implementation of the plan is insufficient to address vulnerabilities identified in a security vulnerability assessment, site inspection, or unannounced inspection of the covered chemical facility; or

(ii)

the plan fails to meet all applicable chemical facility security performance standards.

(2)

Provision of notification of disapproval

If the Secretary disapproves the security vulnerability assessment or site security plan submitted by a covered chemical facility under this title or the implementation of a site security plan by such a chemical facility, the Secretary shall provide the owner or operator of the covered chemical facility a written notification of the disapproval within 14 days of the date on which the Secretary disapproves such assessment or plan, that—

(A)

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

(B)

requires the owner or operator of the covered chemical facility to revise the assessment or plan to address any deficiencies and, by such date as the Secretary determines is appropriate, to submit to the Secretary the revised assessment or plan.

(3)

Order for compliance

Whenever the Secretary determines that the owner or operator of a covered chemical facility has violated or is in violation of any requirement of this title or has failed or is failing to address any deficiencies in the assessment, plan, or implementation of the plan by such date as the Secretary determines to be appropriate, the Secretary may—

(A)

after providing notice to the owner or operator of the covered chemical facility and an opportunity for such owner or operator to appeal the Secretary’s determination, issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both; or

(B)

commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including temporary or permanent injunction.

(4)

Order to cease operations

If the Secretary determines that the owner or operator of a covered chemical facility continues to be in noncompliance after an order for compliance is issued under paragraph (3), the Secretary may issue an order to the owner or operator of a covered chemical facility to cease operations at the facility until the owner or operator complies with such order issued under paragraph (3). Notwithstanding the preceding sentence, the Secretary may not issue an order to cease operations under this paragraph to the owner or operator of a wastewater facility.

(b)

Penalties

(1)

Civil Penalties

A court may award a civil penalty, pursuant to an order issued by the Secretary under this title, of not more than $50,000 for each day on which a violation occurs or a failure to comply continues.

(2)

Administrative penalties

The Secretary may award an administrative penalty, pursuant to an order issued under this title, of not more than $25,000 for each day on which a violation occurs or a failure to comply continues.

2108.

Whistleblower protections

(a)

Establishment

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

(b)

Confidentiality

The Secretary shall keep confidential the identity of a person that submits a report under subsection (a) and any such report shall be treated as protected information under section 2110 to the extent that it does not consist of publicly available information.

(c)

Acknowledgment of receipt

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

(d)

Steps to address problems

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

(e)

Retaliation prohibited

(1)

Prohibition

No owner or operator of a covered chemical facility, profit or not-for-profit corporation, association, or any contractor, subcontractor or agent thereof, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or other privileges of employment because the employee (or any person acting pursuant to a request of the employee)—

(A)

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

(B)

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

(C)

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

(D)

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

(E)

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

(F)

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

(2)

Enforcement action

Any employee covered by this section who alleges discrimination by an employer in violation of paragraph (1) may bring an action governed by the rules and procedures, legal burdens of proof, and remedies applicable under subsections (d) through (h) of section 20109 of title 49, United States Code. A party may seek district court review as set forth in subsection (d)(4) of such section not later than 90 days after receiving a written final determination by the Secretary of Labor.

(3)

Prohibited personnel practices affecting the Department

(A)

In general

Notwithstanding any other provision of law, any individual holding or applying for a position within the Department shall be covered by—

(i)

paragraphs (1), (8), and (9) of section 2302(b) of title 5, United States Code;

(ii)

any provision of law implementing any of such paragraphs by providing any right or remedy available to an employee or applicant for employment in the civil service; and

(iii)

any rule or regulation prescribed under any such paragraph.

(B)

Rule of construction

Nothing in this paragraph shall be construed to affect any rights, apart from those referred to in subparagraph (A), to which an individual described in that subparagraph might otherwise be entitled to under law.

2109.

Federal preemption

This title does not preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to a covered chemical facility that is more stringent than a regulation, requirement, or standard of performance issued under this title, or otherwise impair any right or jurisdiction of any State or political subdivision thereof with respect to covered chemical facilities within that State or political subdivision thereof.

2110.

Protection of information

(a)

Prohibition of Public Disclosure of Protected Information

Protected information, as described in subsection (g)—

(1)

shall be exempt from disclosure under section 552 of title 5, United States Code; and

(2)

shall not be made available pursuant to any State, local, or tribal law requiring disclosure of information or records.

(b)

Information sharing

(1)

In general

The Secretary shall prescribe such regulations, and may issue such orders, as necessary to prohibit the unauthorized disclosure of protected information, as described in subsection (g).

(2)

Sharing of protected information

The regulations under paragraph (1) shall provide standards for and facilitate the appropriate sharing of protected information with and between Federal, State, local, and tribal authorities, emergency response providers, law enforcement officials, designated supervisory and nonsupervisory covered chemical facility personnel with security, operational, or fiduciary responsibility for the facility, and designated facility employee representatives, if any. Such standards shall include procedures for the sharing of all portions of a covered chemical facility’s vulnerability assessment and site security plan relating to the roles and responsibilities of covered individuals under section 2103(g)(1) with a representative of each certified or recognized bargaining agent representing such covered individuals, if any, or, if none, with at least one supervisory and at least one non-supervisory employee with roles or responsibilities under section 2103(g)(1).

(3)

Penalties

Protected information, as described in subsection (g), shall not be shared except in accordance with the regulations under paragraph (1). Any person who purposefully publishes, divulges, discloses, or makes known protected information in any manner or to any extent not authorized by the standards provided by the regulations under paragraph (1), shall, upon conviction, be imprisoned for not more than one year or fined in accordance with the provisions of chapter 227 of title 18, United States Code, applicable to class A misdemeanors, or both, and, in the case of Federal employees or officeholders, shall be removed from Federal office or employment.

(c)

Treatment of information in adjudicative proceedings

In any judicial or administrative proceeding, protected information described in subsection (g) shall be treated in a manner consistent with the treatment of sensitive security information under section 525 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 120 Stat. 1381).

(d)

Other obligations unaffected

Except as provided in section 2103(h), nothing in this section affects any obligation of the owner or operator of a chemical facility under any other law to submit or make available information required by such other law to facility employees, employee organizations, or a Federal, State, tribal, or local government.

(e)

Submission of information to Congress

Nothing in this title shall permit or authorize the withholding of information from Congress or any committee or subcommittee thereof.

(f)

Disclosure of Independently Furnished Information

Nothing in this title shall affect any authority or obligation of a Federal, State, local, or tribal government agency to protect or disclose any record or information that the Federal, State, local, or tribal government agency obtains from a chemical facility under any other law.

(g)

Protected Information

(1)

In general

For purposes of this title, protected information is the following:

(A)

Security vulnerability assessments and site security plans, including any assessment required under section 2111.

(B)

Portions of the following documents, records, orders, notices, or letters that the Secretary determines would be detrimental to chemical facility security if disclosed and that are developed by the Secretary or the owner or operator of a covered chemical facility for the purposes of this title:

(i)

Documents directly related to the Secretary’s review and approval or disapproval of vulnerability assessments and site security plans under this title.

(ii)

Documents directly related to inspections and audits under this title.

(iii)

Orders, notices, or letters regarding the compliance of a covered chemical facility with the requirements of this title.

(iv)

Information required to be provided to, or documents and records created by, the Secretary under section subsection (b) or (c) of section 2102.

(v)

Documents directly related to security drills and training exercises, security threats and breaches of security, and maintenance, calibration, and testing of security equipment.

(C)

Other information, documents, or records developed exclusively for the purposes of this title that the Secretary determines, if disclosed, would be detrimental to chemical facility security.

(2)

Exclusions

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

(A)

information that is otherwise publicly available, including information that is required to be made publicly available under any law;

(B)

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

(C)

information that, if disclosed, would not be detrimental to the security of a chemical facility, including aggregate regulatory data that the Secretary determines is appropriate to describe facility compliance with the requirements of this title and the Secretary’s implementation of such requirements.

2111.

Methods to reduce the consequences of a terrorist attack

(a)

Assessment required

(1)

Assessment

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

(A)

a description of the methods to reduce the consequences of a terrorist attack implemented and considered for implementation by the covered chemical facility;

(B)

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

(C)

the technical feasibility, costs, avoided costs (including liabilities), personnel implications, savings, and applicability of implementing each method to reduce the consequences of a terrorist attack; and

(D)

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

(2)

Feasible

For the purposes of this section, the term feasible means feasible with the use of best technology, techniques, and other means that the Secretary finds, after examination for efficacy under field conditions and not solely under laboratory conditions, are available for use at the covered chemical facility.

(b)

Implementation

(1)

Implementation

(A)

In general

The owner or operator of a covered chemical facility that is assigned to tier 1 or tier 2 because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern at the covered chemical facility, shall implement methods to reduce the consequences of a terrorist attack on the chemical facility if the Director of the Office of Chemical Facility Security determines, in his or her discretion, using the assessment conducted pursuant to subsection (a), that the implementation of such methods at the facility—

(i)

would significantly reduce the risk of death, injury, or serious adverse effects to human health resulting from a chemical facility terrorist incident but—

(I)

would not increase the interim storage of a substance of concern outside the facility;

(II)

would not directly result in the creation of a new covered chemical facility assigned to tier 1 or tier 2 because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern at the covered chemical facility; and

(III)

would not result in the reassignment of an existing covered chemical facility from tier 3 or tier 4 to tier 1 or tier 2 because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from a release of a substance of concern at the covered chemical facility;

(ii)

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

(iii)

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

(B)

Written determination

A determination by the Director of the Office of Chemical Facility Security pursuant to subparagraph (A) shall be made in writing and include the basis and reasons for such determination.

(C)

Maritime facilities

With respect to a covered chemical facility for which a security plan is required under section 70103(c) of title 46, United States Code, a written determination pursuant to subparagraph (A) shall be made only after consultation with the Captain of the Port for the area in which the covered chemical facility is located.

(2)

Review of inability to comply

(A)

In general

An owner or operator of a covered chemical facility who is unable to comply with the Director’s determination under paragraph (1) shall, within 120 days of receipt of the Director’s determination, provide to the Secretary a written explanation that includes the reasons therefor. Such written explanation shall specify whether the owner or operator’s inability to comply arises under clause (ii) or (iii) of paragraph (1)(A), or both.

(B)

Review

Not later than 120 days of receipt of an explanation submitted under subparagraph (A), the Secretary, after consulting with the owner or operator of the covered chemical facility who submitted such explanation, as well as experts in the subjects of environmental health and safety, security, chemistry, design and engineering, process controls and implementation, maintenance, production and operations, chemical process safety, and occupational health, as appropriate, shall provide to the owner or operator a written determination, in his or her discretion, of whether implementation shall be required pursuant to paragraph (1). If the Secretary determines that implementation is required, the Secretary shall issue an order that establishes the basis for such determination, including the findings of the relevant experts, the specific methods selected for implementation, and a schedule for implementation of the methods at the facility.

(c)

Sectoral impacts

(1)

Guidance for farm supplies merchant wholesalers

The Secretary shall provide guidance and, as appropriate, tools, methodologies or computer software, to assist farm supplies merchant wholesalers in complying with the requirements of this section.  The Secretary may award grants to farm supplies merchant wholesalers to assist with compliance with subsection (a), and in awarding such grants, shall give priority to farm supplies merchant wholesalers that have the greatest need for such grants.

(2)

Assessment of impacts

Not later than 6 months after the date of enactment of this title, the Secretary shall transmit an assessment of the potential impacts of compliance with provisions of this section regarding the assessment and, as appropriate, implementation, of methods to reduce the consequences of a terrorist attack by manufacturers, retailers, aerial commercial applicators, and distributors of pesticide and fertilizer to the Committee on Energy and Commerce of the House of Representatives, the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate.  Such assessment shall be conducted by the Secretary in consultation with other appropriate Federal agencies and shall include the following:

(A)

Data on the scope of facilities covered by this title, including the number and type of manufacturers, retailers, aerial commercial applicators and distributors of pesticide and fertilizer required to assess methods to reduce the consequences of a terrorist attack under subsection (a) and the number and type of manufacturers, retailers, aerial commercial applicators and distributors of pesticide and fertilizer assigned to tier 1 or tier 2 by the Secretary  because of the potential extent and likelihood of death, injury, and serious adverse effects to human health, the environment, critical infrastructure, public health, homeland security, national security, and the national economy from the release of a substance of concern at the facility.

(B)

A survey of known methods, processes or practices, other than elimination of or cessation of manufacture of the pesticide or fertilizer, that manufacturers, retailers, aerial commercial applicators, and distributors of pesticide and fertilizer could use to reduce the consequences of a terrorist attack, including an assessment of the costs and technical feasibility of each such method, process, or practice.

(C)

An analysis of how the assessment of methods to reduce the consequences of a terrorist attack under subsection (a) by manufacturers, retailers, aerial commercial applicators, and distributors of pesticide and fertilizer, and, as appropriate, the implementation of methods to reduce the consequences of a terrorist attack by such manufacturers, retailers, aerial commercial applicators, and distributors of pesticide and fertilizer subject to subsection (b), are likely to impact other sectors engaged in commerce.

(D)

Recommendations for how to mitigate any adverse impacts identified pursuant to subparagraph (C).

(3)

Farm supplies merchant wholesaler

In this subsection, the term farm supplies merchant wholesaler means a covered chemical facility that is primarily engaged in the merchant wholesale distribution of farm supplies, such as animal feeds, fertilizers, agricultural chemicals, pesticides, plant seeds, and plant bulbs.

(d)

Provision of Information on Alternative Approaches

(1)

In General

The Secretary shall make available information on the use and availability of methods to reduce the consequences of a chemical facility terrorist incident.

(2)

Information to be included

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

(A)

general and specific types of such methods;

(B)

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

(C)

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

(D)

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

(E)

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

(F)

the availability of technical assistance and best practices; and

(G)

such other matters that the Secretary determines are appropriate.

(3)

Public availability

Information made available under this subsection shall not identify any specific chemical facility, violate the protection of information provisions under section 2110, or disclose any proprietary information.

(e)

Funding for methods To reduce the consequences of a terrorist attack

The Secretary may make funds available to help defray the cost of implementing methods to reduce the consequences of a terrorist attack to covered chemical facilities that are required by the Secretary to implement such methods.

2112.

Applicability

This title shall not apply to—

(1)

any chemical facility that is owned and operated by the Secretary of Defense;

(2)

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

(3)

all or a specified portion of any chemical facility that—

(A)

is subject to regulation by the Nuclear Regulatory Commission (hereinafter in this paragraph referred to as the Commission) or a State that has entered into an agreement with the Commission under section 274 b. of the Atomic Energy Act of 1954 (42 U.S.C. 2021 b.);

(B)

has had security controls imposed by the Commission or State, whichever has the regulatory authority, on the entire facility or the specified portion of the facility; and

(C)

has been designated by the Commission, after consultation with the State, if any, that regulates the facility, and the Secretary, as excluded from the application of this title; or

(4)

any public water system subject to the Safe Drinking Water Act (42 U.S.C. 300f et seq.).

2113.

Savings clause

(a)

In general

Nothing in this title shall affect or modify in any way any obligation or liability of any person under any other Federal law, including section 112 of the Clean Air Act (42 U.S.C. 7412), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Occupational Safety and Health Act (29 U.S.C. 651 et seq.), the National Labor Relations Act (29 U.S.C. 151 et seq.), the Emergency Planning and Community Right to Know Act of 1996 (42 U.S.C. 11001 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Maritime Transportation Security Act of 2002 (Public Law 107–295), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), and the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).

(b)

Other requirements

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

(c)

Access

Nothing in this title shall abridge or deny access to a chemical facility site to any person where required or permitted under any other law or regulation.

2114.

Office of Chemical Facility Security

(a)

In general

There is established in the Department an Office of Chemical Facility Security, headed by a Director, who shall be a member of the Senior Executive Service in accordance with subchapter VI of chapter 53 of title 5, United States Code, under section 5382 of that title, and who shall be responsible for carrying out the responsibilities of the Secretary under this title.

(b)

Professional qualifications

The individual selected by the Secretary as the Director of the Office of Chemical Facility Security shall have professional qualifications and experience necessary for effectively directing the Office of Chemical Facility Security and carrying out the requirements of this title, including a demonstrated knowledge of physical infrastructure protection, cybersecurity, chemical facility security, hazard analysis, chemical process engineering, chemical process safety reviews, or other such qualifications that the Secretary determines to be necessary.

(c)

Selection process

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

2115.

Security background checks of covered individuals at certain chemical facilities

(a)

Regulations issued by the Secretary

(1)

In general

(A)

Requirement

The Secretary shall issue regulations to require covered chemical facilities to establish personnel surety for individuals described in subparagraph (B) by conducting appropriate security background checks and ensuring appropriate credentials for unescorted visitors and chemical facility personnel, including permanent and part-time personnel, temporary personnel, and contract personnel, including—

(i)

measures designed to verify and validate identity;

(ii)

measures designed to check criminal history;

(iii)

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

(iv)

measures designed to identify people with terrorist ties.

(B)

Individuals described

For purposes of subparagraph (A), an individual described in this subparagraph is—

(i)

a covered individual who has unescorted access to restricted areas or critical assets or who is provided with a copy of a security vulnerability assessment or site security plan;

(ii)

a person associated with a covered chemical facility, including any designated employee representative, who is provided with a copy of a security vulnerability assessment or site security plan; or

(iii)

a person who is determined by the Secretary to require a security background check based on chemical facility security performance standards.

(2)

Regulations

The regulations required by paragraph (1) shall set forth—

(A)

the scope of the security background checks, including the types of disqualifying offenses and the time period covered for each person subject to a security background check under paragraph (1);

(B)

the processes to conduct the security background checks;

(C)

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

(D)

a redress process for an adversely-affected person consistent with subsections (b) and (c); and

(E)

a prohibition on an owner or operator of a covered chemical facility misrepresenting to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check.

(b)

Misrepresentation of adverse employment decisions

The regulations required by subsection (a)(1) shall set forth that it shall be a misrepresentation under subsection (a)(2)(E) to attribute an adverse employment decision, including removal or suspension of the employee, to such regulations unless the owner or operator finds, after opportunity for appropriate redress under the processes provided under subsection (c)(1) and (c)(2), that the person subject to such adverse employment decision—

(1)

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

(2)

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

(3)

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

(4)

is determined by the Secretary to be on the consolidated terrorist watchlist; or

(5)

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

(c)

Redress Process

Upon the issuance of regulations under subsection (a), the Secretary shall—

(1)

require the owner or operator to provide an adequate and prompt redress process for a person subject to a security background check under subsection (a)(1) who is subjected to an adverse employment decision, including removal or suspension of the employee, due to such regulations that is consistent with the appeals process established for employees subject to consumer reports under the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.), as in force on the date of enactment of this title;

(2)

provide an adequate and prompt redress process for a person subject to a security background check under subsection (a)(1) who is subjected to an adverse employment decision, including removal or suspension of the employee, due to a determination by the Secretary under subsection (b)(4), that is consistent with the appeals process established under section 70105(c) of title 46, United States Code, including all rights to hearings before an administrative law judge, scope of review, and a review of an unclassified summary of classified evidence equivalent to the summary provided in part 1515 of title 49, Code of Federal Regulations;

(3)

provide an adequate and prompt redress process for a person subject to a security background check under subsection (a)(1) who is subjected to an adverse employment decision, including removal or suspension of the employee, due to a violation of subsection (a)(2)(E), which shall not preclude the exercise of any other rights available under collective bargaining agreements or applicable laws;

(4)

establish a reconsideration process described in subsection (d) for a person subject to an adverse employment decision that was attributed by an owner or operator to the regulations required by subsection (a)(1);

(5)

have the authority to order an appropriate remedy, including reinstatement of the person subject to a security background check under subsection (a)(1), if the Secretary determines that the adverse employment decision was made in violation of the regulations required under subsection (a)(1) or as a result of an erroneous determination by the Secretary under subsection (b)(4);

(6)

ensure that the redress processes required under paragraphs (1), (2), or (3) afford to the person a full disclosure of any public-record event covered by subsection (b) that provides the basis for an adverse employment decision; and

(7)

ensure that the person subject to a security background check under subsection (a)(1) receives the person’s full wages and benefits until all redress processes under this subsection are exhausted.

(d)

Reconsideration process

(1)

In general

The reconsideration process required under subsection (c)(4) shall—

(A)

require the Secretary to determine, within 30 days after receiving a petition submitted by a person subject to an adverse employment decision that was attributed by an owner or operator to the regulations required by subsection (a)(1), whether such person poses a security risk to the covered chemical facility; and

(B)

include procedures consistent with section 70105(c) of title 46, United States Code, including all rights to hearings before an administrative law judge, scope of review, and a review of an unclassified summary of classified evidence equivalent to the summary provided in part 1515 of title 49, Code of Federal Regulations.

(2)

Determination by the Secretary

In making a determination described under paragraph (1)(A), the Secretary shall—

(A)

give consideration to the circumstance of any disqualifying act or offense, restitution made by the person, Federal and State mitigation remedies, and other factors from which it may be concluded that the person does not pose a security risk to the covered chemical facility; and

(B)

provide his or her determination as to whether such person poses a security risk to the covered chemical facility to the petitioner and to the owner or operator of the covered chemical facility.

(3)

Owner or operator reconsideration

If the Secretary determines pursuant to paragraph (1)(A) that the person does not pose a security risk to the covered chemical facility, it shall thereafter constitute a prohibited misrepresentation for the owner or operator of the covered chemical facility to continue to attribute the adverse employment decision to the regulations under subsection (a)(1).

(e)

Restrictions on use and maintenance of information

Information obtained under this section by the Secretary or the owner or operator of a covered chemical facility shall be handled as follows:

(1)

Such information may not be made available to the public.

(2)

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

(3)

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

(4)

The Secretary may share such information with other Federal, State, local, and tribal law enforcement agencies.

(f)

Savings clause

(1)

Rights and responsibilities

Nothing in this section shall be construed to abridge any right or responsibility of a person subject to a security background check under subsection (a)(1) or an owner or operator of a covered chemical facility under any other Federal, State, local, or tribal law or collective bargaining agreement.

(2)

Existing rights

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

(g)

Preemption

Nothing in this section shall be construed to preempt, alter, or affect a Federal, State, local, or tribal law that requires criminal history background checks, checks on the authorization of an individual to work in the United States, or other background checks of persons subject to security background checks under subsection (a)(1).

(h)

Definition of security background check

The term security background check means a review at no cost to any person subject to a security background check under subsection (a)(1) of the following for the purpose of identifying individuals who may pose a threat to chemical facility security, to national security, or of terrorism:

(1)

Relevant databases to verify and validate identity.

(2)

Relevant criminal history databases.

(3)

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

(4)

The consolidated terrorist watchlist.

(5)

Other relevant information or databases, as determined by the Secretary.

(i)

Department-Conducted Security Background Check

The regulations under subsection (a)(1) shall set forth a process by which the Secretary, on an ongoing basis, shall determine whether alternate security background checks conducted by the Department are sufficient to meet the requirements of this section such that no additional security background check under this section is required for an individual for whom such a qualifying alternate security background check was conducted. The Secretary may require a facility to which the individual will have unescorted access to sensitive or restricted areas to submit identifying information about the individual and the alternate security background check conducted for that individual to the Secretary in order to enable the Secretary to verify the validity of the alternate security background check. Such regulations shall provide that no security background check under this section is required for an individual holding a transportation security card issued under section 70105 of title 46, United States Code.

2116.

Citizen enforcement

(a)

In general

Except as provided in subsection (c), any person may commence a civil action on such person’s own behalf—

(1)

against any governmental entity (including the United States, any other governmental instrumentality or agency, and any federally owned-contractor operated facility, to the extent permitted by the eleventh amendment to the Constitution) alleged to be in violation of any order that has become effective pursuant to this title; or

(2)

against the Secretary, for an alleged failure to perform any act or duty under this title that is not discretionary for the Secretary.

(b)

Court of jurisdiction

(1)

In general

Any action under subsection (a)(1) shall be brought in the district court for the district in which the alleged violation occurred. Any action brought under subsection (a)(2) may be brought in the district court for the district in which the alleged violation occurred or in the United States District Court of the District of Columbia.

(2)

Relief

The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties to enforce the order referred to in subsection (a)(1), to order such governmental entity to take such action as may be necessary, or both, or, in an action commenced under subsection (a)(2), to order the Secretary to perform the non-discretionary act or duty, and to order any civil penalties, as appropriate, under section 2107.

(c)

Actions prohibited

No action may be commenced under subsection (a) prior to 60 days after the date on which the person commencing the action has given notice of the alleged violation to—

(1)

the Secretary; and

(2)

in the case of an action under subsection (a)(1), any governmental entity alleged to be in violation of an order.

(d)

Notice

Notice under this section shall be given in such manner as the Secretary shall prescribe by regulation.

(e)

Intervention

In any action under this section, the Secretary, if not a party, may intervene as a matter of right.

(f)

Costs

The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.

(g)

Other rights preserved

Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law.

2117.

Citizen petitions

(a)

In general

The Secretary shall issue regulations to establish a petition process for petitions described in subsection (b), including—

(1)

the format for petitions;

(2)

the procedures for investigation of claims;

(3)

the procedures for response to petitions, including timelines; and

(4)

the procedures for de novo review of responses to petitions by the Office of the Inspector General for the Department of Homeland Security.

(b)

Petitions

The regulations issued pursuant to subsection (a) shall allow any person to file a petition with the Secretary—

(1)

identifying any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) alleged to be in violation of any standard, regulation, condition, requirement, prohibition, plan, or order that has become effective under this title; and

(2)

describing the alleged violation of any standard, regulation, condition, requirement, prohibition, plan, or order that has become effective under this title by that person.

(c)

Requirements

Upon issuance of regulations under subsection (a), the Secretary shall—

(1)

accept all petitions described under subsection (b) that meet the requirements of the regulations promulgated under subsection (a);

(2)

investigate all allegations contained in accepted petitions;

(3)

determine whether enforcement action will be taken concerning the alleged violation or violations;

(4)

respond to all accepted petitions promptly and in writing;

(5)

include in all responses to petitions a brief and concise statement, to the extent permitted under section 2110, of the allegations, the steps taken to investigate, the determination made, and the reasons for such determination;

(6)

maintain an internal record including all protected information related to the determination; and

(7)

provide an opportunity for review by the Department of Homeland Security Inspector General on the full record, including protected information, for all determinations made under such regulations.

(d)

Final agency action

(1)

Ongoing enforcement proceedings

Any determination by the Secretary to pursue enforcement action in response to a petition under this section shall not constitute final agency action because of ongoing enforcement proceedings.

(2)

Determination not to pursue enforcement

Any determination by the Secretary not to pursue enforcement action in response to a petition under this section shall constitute final agency action.

2118.

Annual report to Congress

(a)

Annual Report

Not later than one year after the date of the enactment of this title, annually thereafter for the next four years, and biennially thereafter, the Secretary shall submit to the Committee on Homeland Security and the Committee on Energy and Commerce of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and the Committee on Environment and Public Works of the Senate a report on progress in achieving compliance with this title. Each such report shall include the following:

(1)

A qualitative discussion of how covered chemical facilities, differentiated by tier, have reduced the risks of chemical facility terrorist incidents at such facilities, including—

(A)

a generalized summary of measures implemented by covered chemical facilities in order to meet each risk-based chemical facility performance standard established by this title, and those that the facilities already had in place—

(i)

in the case of the first report under this section, before the issuance of the final rule implementing the regulations known as the Chemical Facility Anti-Terrorism Standards, issued on April 9, 2007; and

(ii)

in the case of each subsequent report, since the submittal of the most recent report submitted under this section; and

(B)

any other generalized summary the Secretary deems appropriate to describe the measures covered chemical facilities are implementing to comply with the requirements of this title.

(2)

A quantitative summary of how the covered chemical facilities, differentiated by tier, are complying with the requirements of this title during the period covered by the report and how the Secretary is implementing and enforcing such requirements during such period, including—

(A)

the number of chemical facilities that provided the Secretary with information about possessing substances of concern, as described in section 2102(b)(2);

(B)

the number of covered chemical facilities assigned to each tier;

(C)

the number of security vulnerability assessments and site security plans submitted by covered chemical facilities;

(D)

the number of security vulnerability assessments and site security plans approved and disapproved by the Secretary;

(E)

the number of covered chemical facilities without approved security vulnerability assessments or site security plans;

(F)

the number of chemical facilities that have been assigned to a different tier or are no longer regulated by the Secretary due to implementation of a method to reduce the consequences of a terrorist attack and a description of such implemented methods;

(G)

the number of orders for compliance issued by the Secretary;

(H)

the administrative penalties assessed by the Secretary for non-compliance with the requirements of this title;

(I)

the civil penalties assessed by the court for non-compliance with the requirements of this title;

(J)

the number of terrorist watchlist checks conducted by the Secretary in order to comply with the requirements of this title, the number of appeals conducted by the Secretary pursuant to the processes described under paragraphs (2), (3) and (4) of section 2115(c), aggregate information regarding the time taken for such appeals, aggregate information regarding the manner in which such appeals were resolved, and, based on information provided to the Secretary annually by each owner or operator of a covered chemical facility, the number of persons subjected to adverse employment decisions that were attributed by the owner or operator to the regulations required by section 2115; and

(K)

any other regulatory data the Secretary deems appropriate to describe facility compliance with the requirements of this title and the Secretary’s implementation of such requirements.

(b)

Public availability

A report submitted under this section shall be made publicly available.

2119.

Authorization of appropriations

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

(1)

$325,000,000 for fiscal year 2011, of which $100,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack, of which up to $3,000,000 shall be made available for grants authorized under section 2111(c)(1);

(2)

$300,000,000 for fiscal year 2012, of which $75,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack, of which up to $3,000,000 shall be made available for grants authorized under section 2111(c)(1); and

(3)

$275,000,000 for fiscal year 2013, of which $50,000,000 shall be made available to provide funding for methods to reduce the consequences of a terrorist attack, of which up to $3,000,000 shall be made available for grants authorized under section 2111(c)(1).

.

(b)

Clerical Amendment

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

Title XXI—Regulation of Security Practices at Chemical Facilities

Sec. 2101. Definitions.

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

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

Sec. 2104. Site inspections.

Sec. 2105. Records.

Sec. 2106. Timely sharing of threat information.

Sec. 2107. Enforcement.

Sec. 2108. Whistleblower protections.

Sec. 2109. Federal preemption.

Sec. 2110. Protection of information.

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

Sec. 2112. Applicability.

Sec. 2113. Savings clause.

Sec. 2114. Office of Chemical Facility Security.

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

Sec. 2116. Citizen enforcement.

Sec. 2117. Citizen petitions.

Sec. 2118. Annual report to Congress.

Sec. 2119. Authorization of appropriations.

.

(c)

Conforming repeal

(1)

Repeal

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

(2)

Effective date

The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act.

(d)

Treatment of CFATS regulations

(1)

Sense of Congress

It is the sense of Congress that the Secretary of Homeland Security was granted statutory authority under section 550 of the Department of Homeland Security Appropriations Act (Public Law 109–295) to regulate security practices at chemical facilities until October 1, 2009. Pursuant to that section the Secretary prescribed regulations known as the Chemical Facility Anti-Terrorism Standards, or CFATS.

(2)

Use of current regulations

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

(3)

Amendment of CFATS

The Secretary shall amend the regulations known as the Chemical Facility Anti-Terrorism Standards to ensure that such regulations fulfill the requirements of this Act and the amendments made by this Act, to the extent that the requirements of this Act and the amendments made by this Act differ from the requirements of such regulations, as in effect on the date of the enactment of this Act.

(4)

Use of tools developed for CFATS

In carrying out this Act and the amendments made by this Act, to the extent determined appropriate by the Secretary, the Secretary may use such rules or tools developed for purposes of the regulations known as the Chemical Facility Anti-Terrorism Standards, including the list of substances of concern, usually referred to as Appendix A and the chemical security assessment tool (which includes facility registration, a top-screen questionnaire, a security vulnerability assessment tool, a site security plan template, and a chemical vulnerability information repository).

(e)

Facilities covered by CFATS

The owner or operator of a covered chemical facility, who, before the effective date of the final regulations issued under title XXI of the Homeland Security Act of 2002, as added by subsection (a), submits a security vulnerability assessment or site security plan under the regulations known as CFATS regulations, as in effect immediately before the enactment of this Act, shall be required to update or amend the facility’s security vulnerability assessment and site security plan to reflect any additional requirements of this Act or the amendments made by this Act, according to a timeline established by the Secretary.

(f)

Consultation with other persons

In developing and carrying out the regulations under title XXI of the Homeland Security Act of 2002, as added by subsection (a), the Secretary shall consult with the Administrator of the Environmental Protection Agency, and other persons, as appropriate, regarding—

(1)

the designation of substances of concern;

(2)

methods to reduce the consequences of a terrorist attack;

(3)

security at co-owned and co-operated drinking water and wastewater facilities;

(4)

the treatment of protected information; and

(5)

such other matters as the Secretary determines necessary.

(g)

Deadline for regulations

(1)

Proposed rule

The Secretary of Homeland Security shall promulgate a proposed rule to fulfill the requirements of title XXI of the Homeland Security Act of 2002, as added by subsection (a), not later than 6 months after the date of the enactment of this Act.

(2)

Final rule

The Secretary shall, after proper notice and opportunity for public comment, promulgate a final rule to fulfill the requirements of such title not later than 18 months after the date of the enactment of this Act.

October 23, 2009

Reported from the Committee on Energy and Commerce with an amendment

October 23, 2009

Committee on the Judiciary discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed