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

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



 
              CHEMICAL FACILITY ANTI-TERRORISM ACT OF 2009

                                _______
                                

                 July 13, 2009.--Ordered to be printed

                                _______
                                

 Mr. Thompson of Mississippi, from the Committee on Homeland Security, 
                        submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                        [To accompany H.R. 2868]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Homeland Security, to whom was referred the 
bill (H.R. 2868) to amend the Homeland Security Act of 2002 to 
extend, modify, and recodify the authority of the Secretary of 
Homeland Security to enhance security and protect against acts 
of terrorism against chemical facilities, and for other 
purposes, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................    20
Background and Need for Legislation..............................    21
Hearings.........................................................    22
Committee Consideration..........................................    22
Committee Votes..................................................    26
Committee Oversight Findings.....................................    32
New Budget Authority, Entitlement Authority, and Tax Expenditures    32
Congressional Budget Office Estimate.............................    33
Statement of General Performance Goals and Objectives............    36
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
  Benefits.......................................................    38
Federal Mandates Statement.......................................    38
Advisory Committee Statement.....................................    38
Constitutional Authority Statement...............................    38
Applicability to Legislative Branch..............................    38
Section-by-Section Analysis of the Legislation...................    38
Changes in Existing Law Made by the Bill, as Reported............    51
Additional and Minority Views....................................    80
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS AND PURPOSE.

  (a) Findings.--Congress makes the following findings:
          (1) The Nation's chemical sector represents a target that 
        terrorists could exploit to cause consequences, including 
        death, injury, or serious adverse effects to human health, the 
        environment, critical infrastructure, public health, homeland 
        security, national security, and the national economy.
          (2) Chemical facilities that pose such potential consequences 
        and that are vulnerable to terrorist attacks must be protected.
          (3) The Secretary of Homeland Security has statutory 
        authority pursuant to section 550 of the Department of Homeland 
        Security Appropriations Act, 2007 (Public Law 109-295) to 
        regulate the security practices at chemical facilities that are 
        at significant risk of being terrorist targets.
          (4) The Secretary of Homeland Security issued interim final 
        regulations called the Chemical Facility Anti-Terrorism 
        Standards, which became effective on June 8, 2007.
  (b) Purpose.--The purpose of this Act is to modify and make permanent 
the authority of the Secretary of Homeland Security to regulate 
security practices at chemical facilities.

SEC. 3. EXTENSION, MODIFICATION, AND RECODIFICATION OF AUTHORITY OF 
                    SECRETARY OF HOMELAND SECURITY TO REGULATE SECURITY 
                    PRACTICES AT CHEMICAL FACILITIES.

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

  ``TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES

``SEC. 2101. DEFINITIONS.

  ``In this title, the following definitions apply:
          ``(1) The term `chemical facility' means any facility--
                  ``(A) at which the owner or operator of the facility 
                possesses or plans to possess at any relevant point in 
                time a substance of concern; or
                  ``(B) that meets other risk-related criteria 
                identified by the Secretary.
          ``(2) The term `chemical facility security performance 
        standards' means risk-based standards established by the 
        Secretary to ensure or enhance the security of a chemical 
        facility against a chemical facility terrorist incident that 
        are designed to address the following:
                  ``(A) Restricting the area perimeter.
                  ``(B) Securing site assets.
                  ``(C) Screening and controlling access to the 
                facility and to restricted areas within the facility by 
                screening or inspecting individuals and vehicles as 
                they enter, including--
                          ``(i) measures to deter the unauthorized 
                        introduction of dangerous substances and 
                        devices that may facilitate a chemical facility 
                        terrorist incident or actions having serious 
                        negative consequences for the population 
                        surrounding the chemical facility; and
                          ``(ii) measures implementing a regularly 
                        updated identification system that checks the 
                        identification of chemical facility personnel 
                        and other persons seeking access to the 
                        chemical facility and that discourages abuse 
                        through established disciplinary measures.
                  ``(D) Methods to deter, detect, and delay a chemical 
                facility terrorist incident, creating sufficient time 
                between detection of a chemical facility terrorist 
                incident and the point at which the chemical facility 
                terrorist incident becomes successful, including 
                measures to--
                          ``(i) deter vehicles from penetrating the 
                        chemical facility perimeter, gaining 
                        unauthorized access to restricted areas, or 
                        otherwise presenting a hazard to potentially 
                        critical targets;
                          ``(ii) deter chemical facility terrorist 
                        incidents through visible, professional, well-
                        maintained security measures and systems, 
                        including security personnel, detection 
                        systems, barriers and barricades, and hardened 
                        or reduced value targets;
                          ``(iii) detect chemical facility terrorist 
                        incidents at early stages through counter 
                        surveillance, frustration of opportunity to 
                        observe potential targets, surveillance and 
                        sensing systems, and barriers and barricades; 
                        and
                          ``(iv) delay a chemical facility terrorist 
                        incident for a sufficient period of time so as 
                        to allow appropriate response through on-site 
                        security response, barriers and barricades, 
                        hardened targets, and well-coordinated response 
                        planning.
                  ``(E) Securing and monitoring the shipping, receipt, 
                and storage of a substance of concern for the chemical 
                facility.
                  ``(F) Deterring theft or diversion of a substance of 
                concern.
                  ``(G) Deterring insider sabotage.
                  ``(H) Deterring cyber sabotage, including by 
                preventing unauthorized onsite or remote access to 
                critical process controls, including supervisory 
                control and data acquisition systems, distributed 
                control systems, process control systems, industrial 
                control systems, critical business systems, and other 
                sensitive computerized systems.
                  ``(I) Developing and exercising an internal emergency 
                plan for owners, operators, and covered individuals of 
                a covered chemical facility for responding to chemical 
                facility terrorist incidents at the facility. Any such 
                plan shall include the provision of appropriate 
                information to any local emergency planning committee, 
                local law enforcement officials, and emergency response 
                providers to ensure an effective, collective response 
                to terrorist incidents.
                  ``(J) Maintaining effective monitoring, 
                communications, and warning systems, including--
                          ``(i) measures designed to ensure that 
                        security systems and equipment are in good 
                        working order and inspected, tested, 
                        calibrated, and otherwise maintained;
                          ``(ii) measures designed to regularly test 
                        security systems, note deficiencies, correct 
                        for detected deficiencies, and record results 
                        so that they are available for inspection by 
                        the Department; and
                          ``(iii) measures to allow the chemical 
                        facility to promptly identify and respond to 
                        security system and equipment failures or 
                        malfunctions.
                  ``(K) Ensuring mandatory annual security training, 
                exercises, and drills of chemical facility personnel 
                appropriate to their roles, responsibilities, and 
                access to chemicals, including participation by local 
                law enforcement, local emergency response providers, 
                appropriate supervisory and non-supervisory facility 
                employees and their employee representatives, if any.
                  ``(L) Performing personnel surety for individuals 
                with access to restricted areas or critical assets by 
                conducting appropriate background checks and ensuring 
                appropriate credentials for unescorted visitors and 
                chemical facility personnel, including permanent and 
                part-time personnel, temporary personnel, and contract 
                personnel, including--
                          ``(i) measures designed to verify and 
                        validate identity;
                          ``(ii) measures designed to check criminal 
                        history;
                          ``(iii) measures designed to verify and 
                        validate legal authorization to work; and
                          ``(iv) measures designed to identify people 
                        with terrorist ties.
                  ``(M) Escalating the level of protective measures for 
                periods of elevated threat.
                  ``(N) Specific threats, vulnerabilities, or risks 
                identified by the Secretary for that chemical facility.
                  ``(O) Reporting of significant security incidents to 
                the Department and to appropriate local law enforcement 
                officials.
                  ``(P) Identifying, investigating, reporting, and 
                maintaining records of significant security incidents 
                and suspicious activities in or near the site.
                  ``(Q) Establishing one or more officials and an 
                organization responsible for--
                          ``(i) security;
                          ``(ii) compliance with the standards under 
                        this paragraph;
                          ``(iii) serving as the point of contact for 
                        incident management purposes with Federal, 
                        State, local, and tribal agencies, law 
                        enforcement, and emergency response providers; 
                        and
                          ``(iv) coordination with Federal, State, 
                        local, and tribal agencies, law enforcement, 
                        and emergency response providers regarding 
                        plans and security measures for the collective 
                        response to a chemical facility terrorist 
                        incident.
                  ``(R) Maintaining appropriate records relating to the 
                security of the facility, including a copy of the most 
                recent security vulnerability assessment and site 
                security plan at the chemical facility.
                  ``(S) Assessing and, as appropriate, utilizing 
                methods to reduce the consequences of a terrorist 
                attack.
                  ``(T) Methods to recover or mitigate the release of a 
                substance of concern in the event of a chemical 
                facility terrorist incident.
                  ``(U) Any additional security performance standards 
                the Secretary may specify.
          ``(3) The term `chemical facility terrorist incident' means 
        any act or attempted act of terrorism or terrorist activity 
        committed at, near, or against a chemical facility, including--
                  ``(A) the release of a substance of concern from a 
                chemical facility;
                  ``(B) the theft, misappropriation, or misuse of a 
                substance of concern from a chemical facility; or
                  ``(C) the sabotage of a chemical facility or a 
                substance of concern at a chemical facility.
          ``(4) The term `employee representative' means the 
        representative of the certified or recognized bargaining agent 
        engaged in a collective bargaining relationship with a private 
        or public owner or operator of a chemical facility.
          ``(5) The term `covered individual' means a permanent, 
        temporary, full-time, or part-time employee of a covered 
        chemical facility or an employee of an entity with which the 
        covered chemical facility has entered into a contract who is 
        performing responsibilities at the facility pursuant to the 
        contract.
          ``(6) The term `covered chemical facility' means a chemical 
        facility that meets the criteria of section 2102(b)(1).
          ``(7) The term `environment' means--
                  ``(A) the navigable waters, the waters of the 
                contiguous zone, and the ocean waters of which the 
                natural resources are under the exclusive management 
                authority of the United States under the Magnuson-
                Stevens Fishery Conservation and Management Act (16 
                U.S.C. 1801 et seq.); and
                  ``(B) any other surface water, ground water, drinking 
                water supply, land surface or subsurface strata, or 
                ambient air within the United States or under the 
                jurisdiction of the United States.
          ``(8) The term `owner or operator' with respect to a facility 
        means any of the following:
                  ``(A) The person who owns the facility.
                  ``(B) The person who has responsibility for daily 
                operation of the facility.
                  ``(C) The person who leases the facility.
          ``(9) The term `person' means an individual, trust, firm, 
        joint stock company, corporation (including a government 
        corporation), partnership, association, State, municipality, 
        commission, political subdivision of a State, or any interstate 
        body and shall include each department, agency, and 
        instrumentality of the United States.
          ``(10) The term `release' means any spilling, leaking, 
        pumping, pouring, emitting, emptying, discharging, injecting, 
        escaping, leaching, dumping, or disposing into the environment 
        (including the abandonment or discarding of barrels, 
        containers, and other closed receptacles containing any 
        hazardous substance or pollutant or contaminant), 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.

``SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF CHEMICAL FACILITIES.

  ``(a) Substances of Concern.--
          ``(1) Designation by the secretary.--The Secretary may 
        designate any chemical substance as a substance of concern and 
        establish the threshold quantity for each such substance of 
        concern.
          ``(2) Matters for consideration.--In designating a chemical 
        substance or establishing or adjusting the threshold quantity 
        for a chemical substance under paragraph (1), the Secretary 
        shall consider the potential extent of death, injury, and 
        serious adverse effects to human health, the environment, 
        critical infrastructure, public health, homeland security, 
        national security, and the national economy that could result 
        from a chemical facility terrorist incident.
  ``(b) List of Covered Chemical Facilities.--
          ``(1) Criteria for list of facilities.--The Secretary shall 
        maintain a list of covered chemical facilities that the 
        Secretary determines are of sufficient security risk for 
        inclusion on the list based on the following criteria:
                  ``(A) The potential threat or likelihood that the 
                chemical facility will be the target of a chemical 
                facility terrorist incident.
                  ``(B) The potential extent and likelihood of death, 
                injury, or serious adverse effects to human health, the 
                environment, critical infrastructure, public health, 
                homeland security, national security, and the national 
                economy that could result from a chemical facility 
                terrorist incident.
                  ``(C) The proximity of the chemical facility to large 
                population centers.
          ``(2) Submission of information.--The Secretary may require 
        the submission of information with respect to the quantities of 
        substances of concern that an owner or operator of a chemical 
        facility possesses or plans to possess in order to determine 
        whether to designate a chemical facility as a covered chemical 
        facility for purposes of this title.
  ``(c) Assignment of Chemical Facilities to Risk-Based Tiers.--
          ``(1) Assignment.--The Secretary shall assign each covered 
        chemical facility to one of four risk-based tiers established 
        by the Secretary, with tier one representing the highest degree 
        of risk and tier four the lowest degree of risk.
          ``(2) Provision of information.--The Secretary may request, 
        and the owner or operator of a covered chemical facility shall 
        provide, any additional information beyond any information 
        required to be submitted under subsection (b)(2) that may be 
        necessary for the Secretary to assign the chemical facility to 
        the appropriate tier under paragraph (1).
          ``(3) Notification.--Not later than 60 days after the date on 
        which the Secretary determines that a chemical facility is a 
        covered chemical facility or is no longer a covered chemical 
        facility or changes the tier assignment under paragraph (1) of 
        a covered chemical facility, the Secretary shall notify the 
        owner or operator of that chemical facility of that 
        determination or change together with the reason for the 
        determination or change and, upon the request of the owner or 
        operator of a covered chemical facility, provide to the owner 
        or operator of the covered chemical facility the following 
        information:
                  ``(A) The number of individuals at risk of death, 
                injury, or severe adverse effects to human health as a 
                result of a worst case chemical facility terrorist 
                incident at the covered chemical facility.
                  ``(B) Information related to the criticality of the 
                covered chemical facility.
                  ``(C) The proximity or interrelationship of the 
                covered chemical facility to other critical 
                infrastructure.
  ``(d) Requirement for Review.--The Secretary--
          ``(1) shall periodically review--
                  ``(A) the designation of a substance of concern and 
                the threshold quantity under subsection (a)(1); and
                  ``(B) the criteria under subsection (b)(1); and
          ``(2) may at any time determine whether a chemical facility 
        is a covered chemical facility or change the tier to which such 
        a facility is assigned under subsection (c)(1).
  ``(e) Provision of Threat-Related Information.--In order to 
effectively assess the vulnerabilities to a covered chemical facility, 
the Secretary shall provide to the owner, operator, or security officer 
of a covered chemical facility threat information regarding probable 
threats to the facility and methods that could be used in a chemical 
facility terrorist incident.

``SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND SITE SECURITY 
                    PLANS.

  ``(a) In General.--
          ``(1) Requirement.--The Secretary shall--
                  ``(A) establish standards, protocols, and procedures 
                for security vulnerability assessments and site 
                security plans to be required for covered chemical 
                facilities;
                  ``(B) require the owner or operator of each covered 
                chemical facility to--
                          ``(i) conduct an assessment of the 
                        vulnerability of the covered chemical facility 
                        to a range of chemical facility terrorist 
                        incidents, including an incident that results 
                        in a worst-case release of a substance of 
                        concern;
                          ``(ii) prepare 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.

``SEC. 2104. SITE INSPECTIONS.

  ``(a) Right of Entry.--For purposes of carrying out this title, the 
Secretary shall have, at a reasonable time and on presentation of 
credentials, a right of entry to, on, or through any property of a 
covered chemical facility or any property on which any record required 
to be maintained under this section is located.
  ``(b) Inspections and Verifications.--
          ``(1) In general.--The Secretary shall, at such time and 
        place as the Secretary determines to be reasonable and 
        appropriate, conduct chemical facility security inspections and 
        verifications.
          ``(2) Requirements.--To ensure and evaluate compliance with 
        this title, including any regulations or requirements adopted 
        by the Secretary in furtherance of the purposes of this title, 
        in conducting an inspection or verification under paragraph 
        (1), the Secretary shall have access to the owners, operators, 
        employees, and employee representatives, if any, of a covered 
        chemical facility.
  ``(c) Unannounced Inspections.--In addition to any inspection 
conducted pursuant to subsection (b), the Secretary shall require 
covered chemical facilities assigned to tier 1 and tier 2 under section 
2102(c)(1) to undergo unannounced facility inspections. The inspections 
required under this subsection shall be--
          ``(1) conducted without prior notice to the facility;
          ``(2) designed to evaluate at the chemical facility 
        undergoing inspection--
                  ``(A) the ability of the chemical facility to prevent 
                a chemical facility terrorist incident that 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.

``SEC. 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.

``SEC. 2106. TIMELY SHARING OF THREAT INFORMATION.

  ``(a) Responsibilities of Secretary.--Upon the receipt of information 
concerning a threat that is relevant to a certain covered chemical 
facility, the Secretary shall provide such information in a timely 
manner, to the maximum extent practicable under applicable authority 
and in the interests of national security, to the owner, operator, or 
security officer of that covered chemical facility, 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.

``SEC. 2107. ENFORCEMENT.

  ``(a) Review of Site Security Plan.--
          ``(1) Disapproval.--The Secretary shall disapprove a security 
        vulnerability assessment or site security plan submitted under 
        this title if the Secretary determines 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.

``SEC. 2108. WHISTLEBLOWER PROTECTIONS.

  ``(a) Establishment.--The Secretary shall establish and provide 
information to the public regarding a process by which any person may 
submit a report to the Secretary regarding problems, deficiencies, or 
vulnerabilities at a covered chemical facility associated with the risk 
of a chemical facility terrorist incident.
  ``(b) Confidentiality.--The Secretary shall keep confidential the 
identity of a person that submits a report under subsection (a) and any 
such report shall be treated as protected information under section 
2110 to the extent that it does not consist of publicly available 
information.
  ``(c) Acknowledgment of Receipt.--If a report submitted under 
subsection (a) identifies the person submitting the report, the 
Secretary shall respond promptly to such person to acknowledge receipt 
of the report.
  ``(d) Steps to Address Problems.--The Secretary shall review and 
consider the information provided in any report submitted under 
subsection (a) and shall, as necessary, take appropriate steps under 
this title to address any problem, deficiency, or vulnerability 
identified in the report.
  ``(e) Retaliation Prohibited.--
          ``(1) Prohibition.--No owner or operator of a covered 
        chemical facility, 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.

``SEC. 2109. FEDERAL PREEMPTION.

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

``SEC. 2110. PROTECTION OF INFORMATION.

  ``(a) Prohibition of Public Disclosure of Protected Information.--
Protected information, as described in subsection (g), 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.

``SEC. 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.

``SEC. 2112. APPLICABILITY.

  ``This title shall not apply to--
          ``(1) any chemical facility that is owned and operated by the 
        Secretary of Defense;
          ``(2) the transportation in commerce, including incidental 
        storage, of any substance of concern regulated as a hazardous 
        material under chapter 51 of title 49, United States Code; 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.

``SEC. 2113. SAVINGS CLAUSE.

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

``SEC. 2114. OFFICE OF CHEMICAL FACILITY SECURITY.

  ``(a) In General.--There is established in the Department an Office 
of Chemical Facility Security, headed by a Director, who shall be a 
member of the Senior Executive Service in accordance with subchapter VI 
of chapter 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.

``SEC. 2115. SECURITY BACKGROUND CHECKS OF COVERED INDIVIDUALS AT 
                    CERTAIN CHEMICAL FACILITIES.

  ``(a) Regulations Issued by the Secretary.--
          ``(1) In general.--
                  ``(A) Requirement.--The Secretary shall issue 
                regulations to require covered chemical facilities to 
                establish personnel surety for individuals described in 
                subparagraph (B) by conducting appropriate security 
                background checks and ensuring appropriate credentials 
                for unescorted visitors and chemical facility 
                personnel, including permanent and part-time personnel, 
                temporary personnel, and contract personnel, 
                including--
                          ``(i) measures designed to verify and 
                        validate identity;
                          ``(ii) measures designed to check criminal 
                        history;
                          ``(iii) measures designed to verify and 
                        validate legal authorization to work; and
                          ``(iv) measures designed to identify people 
                        with terrorist ties.
                  ``(B) Individuals described.--For purposes of 
                subparagraph (A), an individual described in this 
                subparagraph is 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.

``SEC. 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.

``SEC. 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.

``SEC. 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.

``SEC. 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.

                          Purpose and Summary

    The purpose of H.R. 2868 is 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.

                  Background and Need for Legislation

    In 1984, a chemical facility in Bhopal, India accidentally 
released 40 tons of methyl isocyanate. The initial exposure 
killed approximately 3,000 people, and at least 15,000 more 
died from illnesses related to the accident. The tragic event 
in Bhopal was an accident; had it been a deliberate terrorist 
attack, the consequences could have been much worse.
    Chemical facilities are an integral part of the United 
States economy, generating $550 billion in annual revenues. 
These facilities, often located in densely populated areas, 
hold many chemicals that can cause serious harm to humans and 
the environment if used maliciously or without sufficient care. 
The presence of potentially dangerous or hazardous chemicals 
near large population centers, as well as their economic 
importance, could make U.S. chemical facilities attractive 
terrorist targets. As a result, the Chemical Sector is among 
the 17 critical infrastructure and key resources (CI/KR) 
sectors under the National Infrastructure Protection Plan, 
pursuant to Homeland Security Presidential Directive-7 (HSPD-
7).
    In 2007, pursuant to Section 550 of the Homeland Security 
Appropriations Act of 2007 (P.L. 109-295), the Department of 
Homeland Security (Department) was authorized to regulate the 
Nation's chemical facilities. Pursuant to that mandate, the 
Department issued the Chemical Facility Anti-Terrorism 
Standards (CFATS) in June 2007. These standards require each 
chemical facility to report the amounts and types of chemicals 
on site so that the Department can determine whether that 
facility will be further regulated by CFATS rules. The 
Department issued the final CFATS regulations on April 9, 2007. 
Based on these regulations, the Department has begun placing 
regulated facilities into one of four tiers, based on risk and 
performance. The facilities placed in the highest-risk tier 
will be subject to the most stringent security required. The 
CFATS regulations, which have yet to be fully implemented, will 
sunset on October 4, 2009.
    Enactment of H.R. 2868 is necessary to continue the 
implementation of CFATS regulations of our Nation's chemical 
facilities, which is essential for the protection of our 
citizens against terrorist attacks. Specifically, H.R. 2868 
establishes the current CFATS regulations in law by requiring 
each CFATS-regulated chemical facility to conduct a security 
vulnerability assessment and subsequently implement a site 
security plan and provides the Department with the authority 
and resources to inspect these facilities and ensure 
compliance. In addition to making the CFATS regime permanent, 
H.R. 2868 includes some new security modifications such as the 
regulation of port facilities and wastewater facilities under 
CFATS; required analysis of methods to reduce consequences of a 
terrorist attack; whistleblower and State's rights protections; 
and removal of the current restrictions on citizen suits. The 
current CFATS regulations will be improved, not disrupted, by 
this legislation.

                                Hearings

    109th Congress
    On June 15, 2005, prior to introduction of H.R. 5695 in the 
109th Congress, the Subcommittee on Economic Security, 
Infrastructure Protection, and Cybersecurity held a hearing 
entitled ``Preventing Terrorist Attacks on America's Chemical 
Plants.'' The Subcommittee received testimony from Mr. Robert 
Stephan, Assistant Secretary for Infrastructure Protection, 
Department of Homeland Security; Mr. Frank J. Cilluffo, 
Director, Homeland Security Policy Institute, The George 
Washington University; Mr. Stephen Bandy, Manager, Corporate 
Safety and Security, Marathon Ashland Petroleum, LLC, 
testifying on behalf of the National Petrochemical and Refiners 
Association and the American Petroleum Institute; Mr. Marty 
Durbin, Managing Director of Security and Operations, American 
Chemistry Council; Mr. Allen Summers, President and Chief 
Executive Office, Asmark, Inc., testifying on behalf of The 
Fertilizer Institute; and Mr. Sal DePasquale, Security 
Specialist, CH2M Hill and the University of Georgia.
    110th Congress
    On December 12, 2007, prior to introduction of H.R. 5577 in 
the 110th Congress, the Subcommittee on Transportation Security 
and Infrastructure Protection held a hearing on H.R. _, the 
``Chemical Facility Anti-Terrorism Act of 2008.'' The 
Subcommittee received testimony from Col. Bob Stephan, 
Assistant Secretary, Infrastructure Protection, Department of 
Homeland Security; Mr. Clyde Miller, Director, Corporate 
Security, BASF Corporation; Mr. Gerald C. Setley, Vice 
President, Region 3 Director, International Chemical Workers 
Union Council, United Food and Commercial Workers Union; Mr. 
Gary Sondermeyer, Director of Operations, New Jersey Department 
of Environmental Protection; and Dr. M. Sam Mannan, PE, CSP, 
Professor and Director, Mary Kay O'Connor Process Safety 
Center, Artie McFerrin Department of Chemical Engineering, 
Texas A&M; University System.
    111th Congress
    On June 16, 2009, the Committee on Homeland Security held a 
hearing on H.R. 2868, the ``Chemical Facilities Anti-Terrorism 
Act of 2009.'' The Committee received testimony from Mr. Philip 
Reitinger, Deputy Under Secretary, National Protection and 
Programs Directorate, Department of Homeland Security; Ms. Sue 
Armstrong, Director, Infrastructure Security Compliance 
Division, Office of Infrastructure Protection, Department of 
Homeland Security; Mr. Paul Baldauf, Assistant Director, 
Radiation Protection and Release Prevention, New Jersey 
Department of Environmental Protection; Mr. Marty Durbin, Vice 
President, Federal Affairs, American Chemistry Council, Dr. 
Neal Langerman, Principle Scientist and CEO, Advanced Chemical 
Safety, Inc.; and Mr. Martin Jeppeson, Director of Regulatory 
Affairs, California Ammonia Company.

                        Committee Consideration

    The Committee on Homeland Security considered H.R. 2868 on 
June 18, 19, and 23, 2009, and ordered the measure reported to 
the House with a favorable recommendation, amended, by voice 
vote.
    The Committee adopted H.R. 2868, as amended, by a recorded 
vote of 18 yeas and 11 nays. (Roll Call Vote No. 15.)
    The following amendments were offered:
       An Amendment in the Nature of a Substitute to H.R. 2868 
offered by Mr. Thompson (#1); was AGREED TO, as amended, by a 
recorded vote of 18 yeas and 11 nays. (Roll Call Vote No. 14).
           An Amendment offered by Mr. Lungren to the Amendment 
in the Nature of a Substitute (#1A); Page 48, after line 10, 
insert a new subsection (3) entitled ``Appeals''.; was AGREED 
TO by voice vote.
           An Amendment offered by Mr. Dent and Mr. Souder to 
the Amendment in the Nature of a Substitute (#1B); Page 47, 
line 11, strike ``and''. Page 47, line 15, strike the period at 
the end and insert ``; and''. Page 47, after line 15, insert 
the following: (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; was AGREED TO by voice vote.
           An Amendment offered by Mr. Dent to the Amendment in 
the Nature of a Substitute (#1C); Page 47, after line 15, 
insert a new paragraph (2) entitled ``Analysis Required.''; was 
AGREED TO, without amendment, by voice vote.
               An amendment offered by Ms. Miller to the 
amendment offered by Mr. Dent to the Amendment in the Nature of 
a Substitute (#1C1); Page 1, line 12, strike ``and''. Page 1, 
line 14, strike the period and insert ``; and''. Page 1, after 
line 14, insert the following ``(iv) the costs to agricultural 
facilities as a result of mandatory implementation.'' Page 2, 
line 6, strike ``and''. Page 2, line 8, strike the period and 
insert ``; and''. Page 2, after line 8, insert the following: 
``(v) representatives of agricultural facilities.''.; was NOT 
AGREED TO by voice vote.
           An Amendment offered by Mr. Broun to the Amendment 
in the Nature of a Substitute (#1D); Page 45, line 21, after 
``facility'' insert ``assigned to tier 1 or tier 2''. Page 46, 
line 20, strike ``shall'' and insert ``may''. Page 49, line 21, 
strike ``that are required'' and all that follows through 
``such methods''. Page 49, after line 22, insert the following: 
``(e) Assessments Assistance Required.--If a covered chemical 
facility is required by subsection (a) to conduct an assessment 
of methods to reduce the consequences of a terrorist attack, 
the facility may request, and the Secretary shall provide, such 
assistance as may be necessary for the completion of the 
required assessment.''; was NOT AGREED TO by a recorded vote of 
11 yeas and 15 nays (Roll Call Vote No. 5).
           An Amendment offered by Mr. Souder to the Amendment 
in the Nature of a Substitute (#1E); Page 13, line 19, strike 
``and''. Page 13, line 23, strike the period and insert ``; 
and''. Page 13, after line 23, insert the following: ``(D) the 
reduction of risk to the covered chemical facility demonstrated 
by submission of an updated security vulnerability assessment 
and site security plan as required under section 2103.''.; was 
NOT AGREED TO by a recorded vote of 11 yeas and 16 nays (Roll 
Call Vote No. 6).
           An Amendment offered by Mr. Austria to the Amendment 
in the Nature of a Substitute (#1F); Page 49, after line 22, 
insert the following: ``(e) Non-Applicability to Small Business 
Concerns.--This section does not apply to any business that is 
a small business concern, 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.''; was AGREED TO, as amended (by Roll Call Vote No. 7), 
by a recorded vote of 29 yeas and 0 nays (Roll Call Vote No. 
8).
               An amendment offered by Mr. Pascrell to the 
amendment offered by Mr. Austria to the Amendment in the Nature 
of a Substitute (#1F1); strike ``page 49'' following and insert 
the following: ``(e) Applicability to Small Business 
Concerns.-- ``(1) Report.-- ``(A) In General.--Not later than 
one year after the date of enactment of this Act, the Secretary 
shall submit to the Committee on Homeland Security of the House 
of Representatives that reviews and assesses the security 
issues associated with exempting from section 2111 of this Act 
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 paragraph (1), 
from the requirements of such section 2111 of this Act, 
including the potential effect of such an exemption on the 
security of chemical facilities in the United States and the 
economic effect of applying section 2111 to such small business 
concerns; and ``(ii) any other elements the Secretary 
determined to be relevant or appropriate. ``(2) Determination 
of Applicability.--Upon submission of the report, the Secretary 
shall determined whether small business concerns as defined in 
paragraph (1) shall be subject to or exempt from section 2111 
of this Act.''.; was AGREED TO by a recorded vote of 18 yeas 
and 11 nays (Roll Call Vote No. 7).
           An En Bloc Amendment offered by Ms. Jackson-Lee to 
the Amendment in the Nature of a Substitute (#1G); Page 62, 
line 1, strike ``60'' and insert ``120''.; and Page 21, lines 
2, after the semicolon insert ``and''. Page 21, strike lines 3 
through 8. Page 21, line 9, strike ``(I)'' and insert 
``(H)''.was AGREED TO by voice vote.
           An Amendment offered by Mr. Dent to the Amendment in 
the Nature of a Substitute (#1H); Page 9, beginning on line 14, 
strike the proposed subparagraph (S). Page 9, line 17, strike 
``(T)'' and insert ``(S)''. Page 9, line 20, strike ``(U)'' and 
insert ``(T)''. Page 25, lines 22 though 23, strike ``, 
including the requirements under section 2111,'' Page 45, 
beginning on line 18, strike section 2111, relating to methods 
to reduce the consequences of a terrorist attack, and conform 
the amendment to the table of contents made by section 3(b) 
accordingly.; was NOT AGREED TO by a recorded vote of 11 yeas 
and 14 nays (Roll Call Vote No. 9).
           An Amendment offered by Mr. Cao to the Amendment in 
the Nature of a Substitute (#1I); Page 32, after line 15, 
insert the following: ``(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 210 and 2011 to 
ensure compliance with this title.''.; was AGREED TO by voice 
vote.
           An Amendment offered by Mr. Cao to the Amendment in 
the Nature of a Substitute (#1J); Page 10, line 8, after 
``means'' insert the following ``a chemical facility employee 
who is also''. Page 10, line 12, strike ``the'' and insert 
``a''; was NOT AGREED TO by voice vote.
           An Amendment offered by Mr. Broun to the Amendment 
in the Nature of a Substitute (#1K); In the proposed section 
2115, redesignate subsections (c) through (h) as subsections 
(d) through (i), respectively. Page 56, after line 21, insert 
the following: ``(c) Termination of Employment.--If an owner or 
operator of a chemical facility finds that a covered individual 
meet any of the criteria under subsection (b), the owner or 
operator shall cease to employ the covered individual subject 
to the redress process under subsection (d).''.; was NOT AGREED 
TO by voice vote.
           An Amendment offered by Mr. Bilirakis to the 
Amendment in the Nature of a Substitute (#1L); Page 66, after 
line 25, insert the following (and adjust the amendment to the 
table of contents made by section 3(b) accordingly): ``Sec. 
2119. Personal Flexibilities. ``(a) In General.--The Secretary 
may, after providing public notice, appoint and employ 
qualified applicants as chemical security inspectors without 
regard to sections 3309 through 3318 of title 5, United States 
Code, and the regulation thereto, including 5 CFR part 211, or 
5 CFR part 337, subpart A. ``(b) Sunset.--The authority in 
subsection (a) shall terminate on September 30, 2011.''.; was 
NOT AGREED TO by a recorded vote of 11 yeas and 17 nays (Roll 
Call Vote No. 10).
           An Amendment offered by Mr. Cao to the Amendment in 
the Nature of a Substitute (#1M); Page 25, starting on line 1, 
strike the proposed subsection (e). Page 50, after line 8, 
insert the following: ``(A) has an approved facility security 
plan under section 70103 of title 46, United States Code;''. 
Page 50, line 9 strike ``(A)'' and insert ``(B)''. Page 50, 
line 9 strike ``(B)'' and insert ``(C)''. Page 50, line 9 
strike ``(C)'' and insert ``(D)''.; was NOT AGREED TO by voice 
vote.
           An Amendment offered by Mr. Souder to the Amendment 
in the Nature of a Substitute (#1N); Page 62, line 8, strike 
``or''. Page 62, after line 14, strike the period and insert 
``; or''. Page 62, after line 14, insert the following: ``(3) 
if the Secretary or any alleged violator of such standard, 
regulation, condition, requirement, prohibition, or order must 
divulge security risk information or proprietary information in 
the course of such action.''; was NOT AGREED TO by a recorded 
vote of 10 yeas and 16 nays. (Roll Call Vote No. 11).
           An Amendment offered by Mr. McCaul to the Amendment 
in the Nature of a Substitute (#1O); Strike the proposed 
section 2116, relating to civil suits, insert a new section 
2116, entitled ``Civil Complaints'', and conform matter 
proposed to be added to the table of contents by section 3(b) 
accordingly.; was NOT AGREED TO by a recorded vote of 11 yeas 
and 17 nays. (Roll Call Vote No. 12).
           An Amendment offered by Mr. Broun to the Amendment 
in the Nature of a Substitute (#1P); Page 60, beginning on line 
12, strike the proposed section 2116, relating to civil suits, 
and conform the table of contents accordingly.; was NOT AGREED 
TO by a recorded vote of 11 yeas and 17 nays. (Roll Call Vote 
No. 13).
           An Amendment offered by Mr. Austria to the Amendment 
in the Nature of a Substitute (#1Q); Page 66, after line 25, 
insert the following (and adjust the amendment to the table of 
contents made by section 3(b) accordingly): Insert a new 
section entitled ``Sec. 2119. Notification System to Address 
Public Concerns.''; was AGREED TO by voice vote.
           An Amendment offered by Mr. Souder to the Amendment 
in the Nature of a Substitute (#1R); Page 14, after line 11, 
insert a new subsection ``(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.''. Page 47, line 11, strike ``and''. Page 47, 
line 15, strike the period and insert ``; and''. Page 47, after 
line 15, insert the following: ``(D) would not significantly 
transfer security risk to the surface transportation modes of 
the United States.''; was AGREED TO by voice vote.
           An Amendment offered by Mr. King to the Amendment in 
the Nature of a Substitute (#1S); In the proposed section 2115, 
redesignate subsections (c) through (h) as subsections (d) 
through (i), respectively. Page 56, after line 21, insert the 
following: ``(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).''; was AGREED TO by voice 
vote.

                            Committee Votes

    Clause 3(b) of Rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto.
    The Committee adopted H.R. 2868, as amended, by a recorded 
vote of 18 yeas and 11 nays. (Roll Call Vote No. 15.) The vote 
was as follows:
        YEAS                          NAYS
Mr. Thompson                        Mr. King
Ms. Sanchez                         Mr. Smith
Ms. Harman                          Mr. Souder
Mr. DeFazio                         Mr. Lungren
Ms. Lofgren                         Mr. McCaul
Ms. Jackson-Lee                     Mr. Dent
Mr. Cuellar                         Mr. Bilirakis
Mr. Carney                          Mr. Broun
Ms. Clarke                          Mr. Olson
Mrs. Kirkpatrick                    Mr. Cao
Mr. Lujan                           Mr. Austria
Mr. Pascrell
Mr. Cleaver
Mr. Green
Mr. Himes
Ms. Kilroy
Mr. Massa
Ms. Titus

    The following amendments were offered:
       An Amendment in the Nature of a Substitute to H.R. 2868 
offered by Mr. Thompson (#1); was AGREED TO, as amended, by a 
recorded vote of 18 yeas and 11 nays. (Roll Call Vote No. 14). 
The vote was as follows:
        YEAS                          NAYS
Mr. Thompson                        Mr. King
Ms. Sanchez                         Mr. Smith
Ms. Harman                          Mr. Souder
Mr. DeFazio                         Mr. Lungren
Ms. Lofgren                         Mr. McCaul
Ms. Jackson-Lee                     Mr. Dent
Mr. Cuellar                         Mr. Bilirakis
Mr. Carney                          Mr. Broun
Ms. Clarke                          Mr. Olson
Mrs. Kirkpatrick                    Mr. Cao
Mr. Lujan                           Mr. Austria
Mr. Pascrell
Mr. Cleaver
Mr. Green
Mr. Himes
Ms. Kilroy
Mr. Massa
Ms. Titus

       An Amendment offered by Mr. Broun to the Amendment in 
the Nature of a Substitute (#1D); Page 45, line 21, after 
``facility'' insert ``assigned to tier 1 or tier 2''. Page 46, 
line 20, strike ``shall'' and insert ``may''. Page 49, line 21, 
strike ``that are required'' and all that follows through 
``such methods''. Page 49, after line 22, insert the following: 
``(e) Assessments Assistance Required.--If a covered chemical 
facility is required by subsection (a) to conduct an assessment 
of methods to reduce the consequences of a terrorist attack, 
the facility may request, and the Secretary shall provide, such 
assistance as may be necessary for the completion of the 
required assessment.''; was NOT AGREED TO by a recorded vote of 
11 yeas and 15 nays (Roll Call Vote No. 5). The vote was as 
follows:
        YEAS                          NAYS
Mr. Thompson                        Mr. King
Ms. Sanchez                         Mr. Smith
Ms. Harman                          Mr. Souder
Mr. DeFazio                         Mr. Lungren
Ms. Lofgren                         Mr. McCaul
Ms. Jackson-Lee                     Mr. Dent
Mr. Cuellar                         Mr. Bilirakis
Mr. Carney                          Mr. Broun
Ms. Clarke                          Mr. Olson
Mrs. Kirkpatrick                    Mr. Cao
Mr. Lujan                           Mr. Austria
Mr. Pascrell
Mr. Cleaver
Mr. Green
Mr. Himes
Ms. Kilroy
Mr. Massa
Ms. Titus

       An Amendment offered by Mr. Souder to the Amendment in 
the Nature of a Substitute (#1E); Page 13, line 19, strike 
``and''. Page 13, line 23, strike the period and insert ``; 
and''. Page 13, after line 23, insert the following: ``(D) the 
reduction of risk to the covered chemical facility demonstrated 
by submission of an updated security vulnerability assessment 
and site security plan as required under section 2103.''.; was 
NOT AGREED TO by a recorded vote of 11 yeas and 16 nays (Roll 
Call Vote No. 6). The vote was as follows:
        YEAS                          NAYS
Mr. King                            Mr. Thompson
Mr. Souder                          Ms. Sanchez
Mr. Rogers                          Ms. Jackson-Lee
Mr. McCaul                          Mr. Cuellar
Mr. Dent                            Mr. Carney
Mr. Bilirakis                       Ms. Clarke
Mr. Broun                           Ms. Richardson
Mrs. Miller                         Mrs. Kirkpatrick
Mr. Olson                           Mr. Lujan
Mr. Cao                             Mr. Pascrell
Mr. Austria                         Mr. Cleaver
                                    Mr. Green
                                    Mr. Himes
                                    Ms. Kilroy
                                    Mr. Massa
                                    Ms. Titus

       An Amendment offered by Mr. Austria to the Amendment in 
the Nature of a Substitute (#1F); Page 49, after line 22, 
insert the following: ``(e) Non-Applicability to Small Business 
Concerns.--This section does not apply to any business that is 
a small business concern, 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.''; was AGREED TO, as amended (by Roll Call Vote No. 7), 
by a recorded vote of 29 yeas and 0 nays (Roll Call Vote No. 
8). The vote was as follows:
        YEAS                          NAYS
Mr. Thompson                        Mr. King
Ms. Sanchez                         Mr. Souder
Ms. Norton                          Mr. Lungren
Ms. Lofgren                         Mr. Rogers
Ms. Jackson-Lee                     Mr. McCaul
Mr. Cuellar                         Mr. Dent
Mr. Carney                          Mr. Bilirakis
Ms. Clarke                          Mr. Broun
Ms. Richardson                      Mrs. Miller
Mrs. Kirkpatrick                    Mr. Olson
Mr. Lujan                           Mr. Cao
Mr. Pascrell                        Mr. Austria
Mr. Cleaver
Mr. Green
Mr. Himes
Ms. Kilroy
Ms. Titus

       An amendment offered by Mr. Pascrell to the amendment 
offered by Mr. Austria to the Amendment in the Nature of a 
Substitute (#1F1); strike ``page 49'' following and insert the 
following: ``(e) Applicability to Small Business Concerns.--
``(1) Report.-- ``(A) In General.--Not later than one year 
after the date of enactment of this Act, the Secretary shall 
submit to the Committee on Homeland Security of the House of 
Representatives that reviews and assesses the security issues 
associated with exempting from section 2111 of this Act 
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 paragraph (1), 
from the requirements of such section 2111 of this Act, 
including the potential effect of such an exemption on the 
security of chemical facilities in the United States and the 
economic effect of applying section 2111 to such small business 
concerns; and ``(ii) any other elements the Secretary 
determined to be relevant or appropriate. ``(2) Determination 
of Applicability.--Upon submission of the report, the Secretary 
shall determined whether small business concerns as defined in 
paragraph (1) shall be subject to or exempt from section 2111 
of this Act.''.; was AGREED TO by a recorded vote of 18 yeas 
and 11 nays (Roll Call Vote No. 7). The vote was as follows:
        YEAS                          NAYS
Mr. Thompson                        Mr. King
Ms. Sanchez                         Mr. Souder
Ms. Norton                          Mr. Lungren
Ms. Jackson-Lee                     Mr. Rogers
Mr. Cuellar                         Mr. McCaul
Mr. Carney                          Mr. Dent
Ms. Clarke                          Mr. Bilirakis
Ms. Richardson                      Mr. Broun
Mrs. Kirkpatrick                    Mrs. Miller
Mr. Lujan                           Mr. Olson
Mr. Pascrell                        Mr. Austria
Mr. Cleaver
Mr. Green
Mr. Himes
Ms. Kilroy
Mr. Massa
Ms. Titus
Mr. Cao

       An Amendment offered by Mr. Dent to the Amendment in the 
Nature of a Substitute (#1H); Page 9, beginning on line 14, 
strike the proposed subparagraph (S). Page 9, line 17, strike 
``(T)'' and insert ``(S)''. Page 9, line 20, strike ``(U)'' and 
insert ``(T)''. Page 25, lines 22 though 23, strike ``, 
including the requirements under section 2111,'' Page 45, 
beginning on line 18, strike section 2111, relating to methods 
to reduce the consequences of a terrorist attack, and conform 
the amendment to the table of contents made by section 3(b) 
accordingly.; was NOT AGREED TO by a recorded vote of 11 yeas 
and 14 nays (Roll Call Vote No. 9). The vote was as follows:
        YEAS                          NAYS
Mr. King                            Mr. Thompson
Mr. Souder                          Mr. Cuellar
Mr. Lungren                         Mr. Carney
Mr. Rogers                          Ms. Clarke
Mr. McCaul                          Ms. Richardson
Mr. Dent                            Mrs. Kirkpatrick
Mr. Bilirakis                       Mr. Lujan
Mr. Broun                           Mr. Pascrell
Mr. Olson                           Mr. Cleaver
Mr. Cao                             Mr. Green
Mr. Austria                         Mr. Himes
                                    Ms. Kilroy
                                    Mr. Massa
                                    Ms. Titus

       An Amendment offered by Mr. Bilirakis to the Amendment 
in the Nature of a Substitute (#1L); Page 66, after line 25, 
insert the following (and adjust the amendment to the table of 
contents made by section 3(b) accordingly): ``Sec. 2119. 
Personal Flexibilities. ``(a) In General.--The Secretary may, 
after providing public notice, appoint and employ qualified 
applicants as chemical security inspectors without regard to 
sections 3309 through 3318 of title 5, United States Code, and 
the regulation thereto, including 5 CFR part 211, or 5 CFR part 
337, subpart A. ``(b) Sunset.--The authority in subsection (a) 
shall terminate on September 30, 2011.''.; was NOT AGREED TO by 
a recorded vote of 11 yeas and 17 nays (Roll Call Vote No. 10). 
The vote was as follows:
        YEAS                          NAYS
Mr. King                            Mr. Thompson
Mr. Souder                          Ms. Norton
Mr. Lungren                         Ms. Jackson-Lee
Mr. Rogers                          Mr. Cuellar
Mr. McCaul                          Mr. Carney
Mr. Dent                            Ms. Clarke
Mr. Bilirakis                       Ms. Richardson
Mr. Broun                           Mrs. Kirkpatrick
Mrs. Miller                         Mr. Lujan
Mr. Olson                           Mr. Pascrell
Mr. Austria                         Mr. Cleaver
                                    Mr. Green
                                    Mr. Himes
                                    Ms. Kilroy
                                    Mr. Massa
                                    Ms. Titus
                                    Mr. Cao

       An Amendment offered by Mr. Souder to the Amendment in 
the Nature of a Substitute (#1N); Page 62, line 8, strike 
``or''. Page 62, after line 14, strike the period and insert 
``; or''. Page 62, after line 14, insert the following: ``(3) 
if the Secretary or any alleged violator of such standard, 
regulation, condition, requirement, prohibition, or order must 
divulge security risk information or proprietary information in 
the course of such action.''; was NOT AGREED TO by a recorded 
vote of 10 yeas and 16 nays. (Roll Call Vote No. 11). The vote 
was as follows:
        YEAS                          NAYS
Mr. King                            Mr. Thompson
Mr. Souder                          Ms. Sanchez
Mr. Lungren                         Ms. Harman
Mr. McCaul                          Mr. DeFazio
Mr. Dent                            Ms. Lofgren
Mr. Bilirakis                       Ms. Jackson-Lee
Mr. Broun                           Mr. Cuellar
Mr. Olson                           Mr. Carney
Mr. Cao                             Ms. Clarke
Mr. Austria                         Mr. Lujan
                                    Mr. Pascrell
                                    Mr. Cleaver
                                    Mr. Green
                                    Mr. Himes
                                    Mr. Massa
                                    Ms. Titus

       An Amendment offered by Mr. McCaul to the Amendment in 
the Nature of a Substitute (#1O); Strike the proposed section 
2116, relating to civil suits, insert a new section 2116, 
entitled ``Civil Complaints'', and conform matter proposed to 
be added to the table of contents by section 3(b) accordingly.; 
was NOT AGREED TO by a recorded vote of 11 yeas and 17 nays. 
(Roll Call Vote No. 12). The vote was as follows:
        YEAS                          NAYS
Mr. King                            Mr. Thompson
Mr. Smith                           Ms. Sanchez
Mr. Souder                          Ms. Harman
Mr. Lungren                         Mr. DeFazio
Mr. McCaul                          Ms. Lofgren
Mr. Dent                            Ms. Jackson-Lee
Mr. Bilirakis                       Mr. Cuellar
Mr. Broun                           Ms. Clarke
Mr. Olson                           Mr. Carney
Mr. Cao                             Mr. Lujan
Mr. Austria                         Mr. Pascrell
                                    Mr. Cleaver
                                    Mr. Green
                                    Mr. Himes
                                    Ms. Kilroy
                                    Mr. Massa
                                    Ms. Titus

       An Amendment offered by Mr. Broun to the Amendment in 
the Nature of a Substitute (#1P); Page 60, beginning on line 
12, strike the proposed section 2116, relating to civil suits, 
and conform the table of contents accordingly.; was NOT AGREED 
TO by a recorded vote of 11 yeas and 17 nays. (Roll Call Vote 
No. 13). The vote was as follows:
        YEAS                          NAYS
Mr. King                            Mr. Thompson
Mr. Smith                           Ms. Sanchez
Mr. Souder                          Ms. Harman
Mr. Lungren                         Mr. DeFazio
Mr. McCaul                          Ms. Lofgren
Mr. Dent                            Ms. Jackson-Lee
Mr. Bilirakis                       Mr. Cuellar
Mr. Broun                           Mr. Carney
Mr. Olson                           Ms. Clarke
Mr. Cao                             Mr. Lujan
Mr. Austria                         Mr. Pascrell
                                    Mr. Cleaver
                                    Mr. Green
                                    Mr. Himes
                                    Ms. Kilroy
                                    Mr. Massa
                                    Ms. Titus

                      Committee Oversight Findings

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

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
2868, the Chemical Facility Anti-Terrorism Act of 2009, would 
result in no new or increased budget authority, entitlement 
authority, or tax expenditures or revenues.

                  Congressional Budget Office Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.
                                                      July 9, 2009.
Hon. Bennie G. Thompson,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2868, the Chemical 
Facility Anti-Terrorism Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

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

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

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2010     2011     2012     2013     2014   2010-2014
----------------------------------------------------------------------------------------------------------------
                                 CHANGES IN SPENDING SUBJECT TO APPROPRIATION\a\

Estimated Authorization Level\b\........................        0      325      300      275      283     1,183
Estimated Outlays.......................................        0      260      305      280      282    1,127
----------------------------------------------------------------------------------------------------------------
a. Enacting H.R. 2868 could affect revenues, but CBO estimates that any such effect would not be significant in
  any year.
b. The authorization levels for 2011 through 2013 are specified by H.R. 2868; CBO estimated the 2014 level.

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

Spending Subject to Appropriation

    For this estimate, CBO assumes that the necessary amounts 
will be appropriated for each fiscal year and that spending 
will follow the historical spending patterns for those or 
similar activities.
    The Department of Homeland Security Appropriation Act, 2007 
(Public Law 109-295) authorized DHS to regulate chemical 
facilities, but that authority expires later this year.
    H.R. 2869 would authorize the appropriation of $900 million 
over the 2011-2013 period for DHS to continue regulating the 
security of chemical facilities in the United States. In 
addition, because the bill's provisions would be permanent, CBO 
estimates that implementing the bill would require funding of 
$283 million in 2014 for DHS to continue to carry out the 
bill's activities. We estimated the 2014 level by adjusting the 
2013 level for anticipated inflation.

Revenues

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

Extension of Mandates on Chemical Facilities

    The bill would extend and make permanent mandates contained 
in section 550 of Public Law 109-295, the Chemical Facility 
Anti-Terrorism Standards (CFATS), that are set to expire in 
October 2009. Those mandates require owners and operators of 
public and private facilities where certain chemicals are 
present to assess the vulnerability of their facilities to a 
terrorist incident and to prepare and implement security plans. 
The bill also would extend mandates that require owners and 
operators of such facilities to maintain records, periodically 
submit reviews of the adequacy of the vulnerability assessments 
or security plans, and allow DHS access to their property for 
security inspections and verifications. In addition, owners and 
operators would have to continue to conduct background checks 
on employees with access to restricted areas and provide 
training to employees. Information from DHS and industry 
sources indicates that those facilities are currently in 
compliance with CFATS regulations, and CBO estimates that the 
cost of continuing to comply with those regulations would be 
small relative to the annual thresholds established in UMRA.

Expansion of Mandates to Drinking Water and Wastewater Facilities

    The bill would require drinking water and wastewater 
facilities, entities that are currently exempt from the CFATS 
regulations, to comply with those requirements. According to 
government and industry representatives, many of the facilities 
potentially affected by the bill's provisions are currently 
engaged in activities similar to those that would be required 
under H.R. 2868. Such facilities are acting either in response 
to the terrorist attacks of September 11, 2001, as a condition 
of membership in chemical industry associations, or in 
accordance with the Public Health Security and Bioterrorism 
Preparedness and Response Act of 2002, the Maritime 
Transportation Security Act, or other federal regulations.
    The bill also would require public and private drinking 
water and wastewater facilities to complete an initial 
assessment of their chemical holdings. CBO has no basis for 
estimating how many public water facilities currently use the 
chemicals affected by those requirements or the number of those 
facilities that would be required to complete vulnerability 
assessments and security plans. Therefore, CBO cannot determine 
whether the costs to public entities of complying with the 
mandates would exceed the intergovernmental threshold 
established in UMRA. Because there are few private water 
facilities and they tend to be small, CBO expects that the 
compliance cost for those entities would be small relative to 
UMRA's annual threshold for private-sector mandates.

New Mandates on Chemical Facilities

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

Other Intergovernmental Mandates

    The bill would exempt some security plans and documents 
from state and local laws that provide public access to 
information and preempt any state or local regulation that 
would conflict with the security activities authorized by the 
bill. CBO estimates that the costs, if any, of those 
preemptions would be small.
    Estimate prepared by: Federal Costs: Mark Grabowicz; Impact 
on State, Local, and Tribal Governments: Melissa Merrell; 
Impact on the Private Sector: Paige Piper/Bach.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

         Statement of General Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of Rule XIII of the Rules of the 
House of Representatives, H.R. 2868 contains the following 
general performance goals, and objectives, including outcome 
related goals and objectives authorized.
     The purpose of this legislation is to amend the Homeland 
Security Act of 2002 to modify and make permanent the authority 
of the Secretary of Homeland Security (Secretary) to enhance 
security and protect against acts of terrorism against chemical 
facilities, and for other purposes, including:
         Designation of certain chemical substances as 
        substances of concern and establishing a threshold 
        quantity for each substance of concern, thereby 
        requiring reporting and other requirements;
         Assignment by the Secretary of each covered chemical 
        facility to one of four or more risk-based tiers 
        established by the Secretary and periodic review by the 
        Secretary of the criteria under which covered chemical 
        facilities are assigned to risk-based tiers or by which 
        chemical facilities are designated as covered chemical 
        facilities;
         Establishing security requirements for covered 
        chemical facilities including security vulnerability 
        assessments and site security plans;
         Conducting chemical facility site inspections to 
        verify that site security plans are properly 
        implemented;
         Timely sharing of threat-related information to 
        covered chemical facilities and appropriate State, 
        local, and tribal officials and appropriate covered 
        chemical facility official;
         Enforcement of the regulations, if necessary, through 
        orders, or administrative or civil penalties;
         Providing whistleblower protections for covered 
        individuals and Departmental personnel;
         Allowing State, local, or tribal governments to 
        establish more stringent chemical facility security 
        requirements;
         Ensuring that specific security-related information 
        developed pursuant to this title is protected from 
        public disclosure, while ensuring that such information 
        can be shared with appropriate persons and that it may 
        be used in adjudicative proceedings;
         Requiring all covered chemical facilities to conduct 
        an assessment of the feasibility of methods to reduce 
        the consequences of a terrorist attack, and allowing 
        the Secretary to require implementation of such 
        methods, on a case-by-case basis, for tier 1 and tier 2 
        covered chemical facilities, which are in the highest 
        risk tiers;
         Making funds available to help defray the cost of 
        implementing methods to reduce the consequences of a 
        terrorist attack to covered chemical facilities that 
        are required by the Secretary or that voluntarily 
        choose to implement such methods;
         Exempting chemical facilities owned and operated by 
        the Department of Defense, transportation modes 
        currently regulated by Department of Transportation 
        Hazardous Materials regulations, and those portions of 
        nuclear facilities that are regulated by the Nuclear 
        Regulatory Commission for security;
         Ensuring that nothing in this title would affect or 
        modify any obligation of a person or facility under any 
        other Federal law;
         Establishing an Office of Chemical Facility Security, 
        to be headed by a qualified Director, to administer the 
        regulations required by this title;
         Requiring security background checks for covered 
        individuals with unescorted access to critical assets, 
        an adequate processes for redress for a covered 
        individual subjected to an adverse employment decision, 
        including removal or suspension, due to compliance with 
        this legislation, and prohibiting a covered chemical 
        facility from unreasonably misrepresenting to an 
        employee or labor arbiter the scope, application, or 
        meaning of any rules, regulations, directives, or 
        guidance issued by the Secretary related to security 
        background check requirements;
         Providing private citizens with the right to commence 
        civil actions against a covered chemical facility or 
        the Secretary in order to help bring about compliance 
        with the requirements of this title;
         Submission of an annual report to Congress by the 
        Secretary on progress in achieving compliance with 
        title XXI of the Homeland Security Act of 2002, as 
        added by section 3 of this legislation, not later than 
        one year after the date of enactment thereof;
         Authorization of $325 million for fiscal year 2011, of 
        which $100 million is available for funding of methods 
        to reduce consequences of a terrorist attack, $300 
        million for fiscal year 2012, of which $75 million is 
        available for funding of methods to reduce consequences 
        of a terrorist attack, and $275 million for fiscal year 
        2013, of which $100 million is available for funding of 
        methods to reduce consequences of a terrorist attack, 
        to carry out the requirements of this title; and
         Establishment of a notification system that will allow 
        any person to report a suspected security deficiency or 
        suspected instance of non-compliance with this title.

   Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
                                Benefits

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

                       Federal Mandates Statement

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

                      Advisory Committee Statement

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

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for this legislation is provided in 
Article I, section 8, clause 1, which grants Congress the power 
to provide for the common Defense of the United States.

                  Applicability to Legislative Branch

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

             Section-by-Section Analysis of the Legislation


Section 1.   Short Title.
    This Act may be cited as the ``Chemical Facility Anti-
Terrorism Act of 2009''.

Section 2.   Findings and Purpose.
    Congress finds that the Nation's chemical facilities 
represent a terrorist target that must be protected. The 
Secretary currently has authority to regulate chemical 
facilities under the Chemical Facility Anti-Terrorism Standards 
(CFATS) issued pursuant to section 550 of the Department of 
Homeland Security Appropriations Act, 2007 (P.L. 109-295). The 
purpose of this Act is to modify and give permanent status to 
CFATS.

Section 3.   Extension, Modification, and Recodification of the 
Authority of the Secretary of Homeland Security to Regulate 
Security Practices at Chemical Facilities.
    Section 3 paragraph (a) adds ``Title XXI--Regulation of 
Security Practices at Chemical Facilities'' to the Homeland 
Security Act of 2002. Title XXI includes the following 
provisions:

Section 2101.   Definitions.
    This section defines terms such as ``chemical facility,'' 
``chemical facility performance standard,'' ``chemical facility 
terrorist incident,'' ``employee representative,'' ``covered 
individual,'' ``covered chemical facility,'' ``environment,'' 
``substance of concern,'' and ``method to reduce the 
consequences of a terrorist attack,'' among others.
    The Committee is aware that local and international unions 
may have more than one representative. Therefore, the 
definition of `employee representative' is intended to 
encompass all of the representatives, despite the use of 
definitive and often singular articles. Moreover, when there is 
more than one bargaining agent in the workplace, the definition 
is intended to cover all of the bargaining units in the 
workplace.
    The Committee intends for the term ``substance of concern'' 
to be equivalent to the term ``chemical of interest'' as 
defined and used under the CFATS regulations issued on April 9, 
2007 pursuant to section 550 of Public Law 109-295.
    The Committee does not intend the term ``method to reduce 
the consequences of a terrorist attack'' to include the 
mitigation, control, containment, or recovery of a substance of 
concern in the event of a chemical facility terrorist incident.

Section 2102.   Risk-Based Designation and Ranking of Chemical 
Facilities.
    This section grants authority the Secretary to designate a 
chemical substance as a substance of concern and determine the 
regulated threshold quantities of these identified chemicals 
that are used, stored, manufactured, processed or distributed 
by a chemical facility. Factors for consideration are the 
potential for death, injury, or serious adverse effects to 
human health, the environment, critical infrastructure, public 
health, homeland security, national security, or the national 
economy from a terrorist-related release. The Secretary may use 
the Appendix A list that was published in the Federal Register 
on November 20, 2007 (Federal Register Vol. 72, No. 223; 6 CFR 
Part 27) under CFATS to fulfill this requirement.
    The Secretary is required to maintain a list of chemical 
facilities that have more than a threshold quantity of a 
``substance of concern'' and pose a sufficient security risk 
based on certain criteria, including the potential threat or 
likelihood of a terrorist attack at the facility; the potential 
harm to human health, the environment, critical infrastructure, 
public health, homeland security, national security, and the 
national economy, from a terrorist incident; and the proximity 
of the facility to large population centers. The Secretary may 
require a facility to submit information regarding the 
facility's possession of substances of concern to determine 
whether it is ``covered'' under this title. The Secretary may 
use the review process used in the 2008 assessment of chemical 
facilities, commonly referred to as the ``Top Screen'' process 
under CFATS to fulfill this requirement.
    The Secretary is required to assign each such covered 
chemical facility to one of at least four risk-based tiers with 
tier 1 being the highest risk tier. Facilities are to be 
notified within 60 days of their designation or any change in 
their designation. The Secretary must periodically review the 
list of substances of concern and the threshold quantities. 
Additionally, at any time, the Secretary may add, remove, or 
change the tier assignment for each facility. The Secretary 
shall provide relevant information regarding probable threats 
to facilities.

Section 2103.   Security Vulnerability Assessments and Site 
Security Plans.
    This section requires the Secretary to develop regulations 
to establish risk-based, performance-based standards, 
protocols, and procedures for mandatory security vulnerability 
assessments (SVAs) and site security plans (SSPs) and set 
deadlines, by tier, for completing the SVAs and SSPs. 
Facilities are required to include employees and their 
representatives when developing SVAs and SSPs. Upon request, 
the Secretary shall provide assistance and guidance to 
facilities conducting SVAs and SSPs to the extent that 
resources permit. The Secretary must approve or disapprove SVAs 
and SSPs within 180 days of receipt. The Secretary may put 
forth modified requirements for academic laboratories on 
college campuses.
    The Committee intends that a covered chemical facility use, 
as the basis for an assessment under this section, information 
on a worst-case chemical facility terrorist incident provided 
by the Secretary to that facility or such information derived 
by the chemical facility. The Committee also intends that 
guidance provided by the Secretary under this section shall be 
in convenient and user-friendly format, including methodologies 
and computer software that assist covered chemical facilities 
in evaluating options to meet security performance standards. 
The Committee further intends that chemical facilities that are 
complying with this section must meet with the required 
employee representatives.
    Facilities must review and resubmit SVAs and SSP at least 
every 5 years. In addition, facilities are required to notify 
the Secretary if they change their use or storage of a 
substance of concern or modify operations in a way that could 
affect the security vulnerability assessment or site security 
plan that were already approved. As part of an SVA and SSP, the 
owner or operator must acknowledge in writing that he 
understands any penalties for non-compliance.
    The approval or disapproval of a security vulnerability 
assessment or site security plan is an inherently governmental 
function.
    The Secretary is required to establish risk-based security 
performance standards for SSPs. The security performance 
standards are to be increasingly stringent according to the 
tier and allow a facility to choose a combination of security 
measures that together meet the security performance 
requirements. In addition, facilities closely located may 
develop and implement coordinated SVAs and SSPs.
    The Secretary may accept, in whole or in part, the 
submission of an alternate security program (ASP) that was 
prepared by the facility for some other reason, such as 
complying with another law, for purposes of fulfilling the 
regulatory requirements to complete an SVA or SSP as long as it 
provides an equivalent level of security to the level of 
security established under the regulations. The Secretary must 
review and approve or disapprove each ASP.
    Under this section, the Secretary may accept a personnel 
surety alternate security program to meet the requirements in 
section 2115 regarding background checks that is submitted by a 
non-profit personnel surety accrediting organization that is 
working with the owner or operator of a covered chemical 
facility. Under this approach, the Secretary would decide 
whether the program meets the requirements and can be accepted.
    This section requires facilities subject to the Maritime 
Transportation Safety Act (MTSA) to submit to the Secretary 
information necessary to determine whether such a facility 
would be designated as a covered chemical facility under CFATS. 
For those so designated, the Coast Guard may require a MTSA 
facility to update security materials that had been submitted 
under MTSA to achieve an equivalent level of security as 
provided under CFATS. The Coast Guard and the Office of 
Infrastructure Protection are required to enter into a formal 
agreement detailing the roles and responsibilities of each in 
carrying out their responsibilities under CFATS.
    The Secretary is required to coordinate with the Attorney 
General (the Bureau of Alcohol, Tobacco, and Firearms) on 
facilities that import, manufacture, distribute, or store 
explosive materials and are required to be licensed under  18 
U.S.C. 40.
    The Secretary shall require that a security vulnerability 
assessment or site security plan describes the roles and 
responsibilities that covered individuals are expected to 
perform to deter or respond to a chemical facility terrorist 
incident. Owners or operators are required to provide covered 
individuals 8 hours of annual training for security purposes.
    The Secretary shall establish a worker training grants 
program and shall enter into an agreement with another Federal 
or State agency to make and administer the grants.
    With respect to worker training grant program, the 
Committee believes that the Department should consider entering 
into such an agreement with the National Institute for 
Environmental Health Sciences.
    The Committee recognizes concerns raised by underground 
facilities that store natural gas in geologic rock formations 
several thousand feet below the ground surface. In natural gas 
storage, methane, the chemical of interest, is only accessible 
by pipelines through the wellheads. The Committee acknowledges 
that the Transportation Security Administration (TSA) and the 
Pipeline and Hazardous Materials Safety Administration (PHMSA) 
have regulatory authority over pipeline security and pipeline 
safety. TSA has established natural gas pipeline security 
guidelines, which require operators to have a security program 
for all pipeline facilities, including these facilities that 
add and withdraw natural gas to these geologic rock formations. 
The Committee recognizes that this legislation may add to 
existing TSA and PHMSA security requirements. The Committee 
intends for this legislation to work with TSA and PHMSA 
requirements without adding additional, conflicting, and 
unnecessary requirements.
    With respect to the alternate security plan provision, the 
types of ASPs that the Committee envisions include 
vulnerability assessments, security plans or other documents 
developed to comply with other Federal laws such as the Safe 
Drinking Water Act (42 U.S.C. 300i-2), the Maritime 
Transportation Safety Act (chapter 701 of title 46, United 
States Code), State and local laws, and voluntary industry 
practices such as the American Chemistry Council's Responsible 
Care Code. The Committee encourages the Department of Homeland 
Security to allow process safety reviews to be submitted for 
review for the assessment required under section 2111 of this 
legislation. The Committee intends for the Secretary to review 
and approve or disapprove all submissions of alternate security 
program information on an individual, facility-by-facility 
basis. The Committee does not intend for any provision of this 
section to relieve any covered chemical facility of the 
responsibility to comply with each requirement of this title or 
any other law.
    The Committee believes that Coast Guard should continue to 
be responsible for enforcing security requirements at MTSA 
facilities. Further, the Committee believes that the formal 
agreement that is to be developed between the Office of 
Infrastructure Protection and the Coast Guard should ensure 
that chemical facilities at ports see ``one face'' of DHS for 
chemical security compliance issues.
    The Committee observes that, in implementing the current 
Chemical Facility Anti-Terrorism Standards (CFATS) Interim 
Final Rule, the Department has been appropriately sensitive to 
the concerns of `agricultural end users'--farms and farmers--
regarding chemical security. The Committee supports the 
Department's continued attention to the agricultural sector and 
to take into account both the proximity of such facilities to 
major population centers and their vital role in our Nation's 
economy as they administer chemical security regulations.

Section 2104.   Site Inspections.
    The Secretary is granted the right of entry at reasonable 
times to conduct security verifications and inspections. For 
tier 1 and 2 facilities, the Secretary is required to conduct 
unannounced inspections to ensure and evaluate compliance with 
regulations, security standards, and requirements under this 
title in a manner so as not to affect the actual security, 
physical integrity, or safety of the facility.
    In this section, it is the intent of the Committee to leave 
the Secretary free to conduct parts of an inspection 
unaccompanied. However, the Committee expects that in covered 
chemical facilities with employee representations, if an owner 
or operator accompanies the Secretary or the Secretary's 
designee for the site inspection, there should also be an 
employee or employee representative accompanying the Secretary. 
In the event that the Secretary or her designee determines it 
necessary to confer privately with the owner or operator, an 
equal opportunity should be conferred to an employee or 
employee representative to speak privately. Further, the 
Committee expects that if the Secretary or the Secretary's 
designee interviews an employee during an inspection, the 
employee shall have the right to be accompanied by an employee 
representative during the interview. In addition, it is the 
intent of the Committee that no inspection is complete unless 
the Secretary has given both owners or operators and employees 
and employee representatives the opportunity to communicate 
security issues that they perceive to be important at the 
facility and identify any possible violations.

Section 2105.   Records.
    The Secretary may require the submission of, or access to, 
a facility's records in order to review such facility's SVA or 
SSP or their implementation. Facilities also must provide the 
SVAs and SSPs to employee representatives, if any. Such records 
must be handled properly. The section requires that the 
handling of any records made available under this section be 
done so in accordance with the applicable information 
protections provided in this legislation and other applicable 
laws. The owner or operator of a facility with one or more 
certified or recognized bargaining agent is required to furnish 
a copy of any SVA or SSP submitted to the representative who, 
in turn, is required to ensure that the materials are secured 
appropriately.

Section 2106.   Timely Sharing of Threat Information.
    The Secretary is required to provide information concerning 
a threat that is relevant to a specific covered chemical 
facility, in as timely a manner, to the owner or operator of 
the facility, to the maximum extent practicable. The covered 
chemical facility is required to report to the Secretary any 
threat, significant security incident, or penetration of the 
facility's cyber or physical security, whether successful or 
not. The Secretary shall also share the information with 
relevant State, local, and tribal authorities, including the 
State Homeland Security Advisor, if applicable.

Section 2107.   Enforcement.
    This section requires the Secretary to disapprove a 
facility's SVA or SSP if it does not comply with the CFATS 
standards or if the facility's implementation of the SSP is 
insufficient to address identified vulnerabilities or meet 
relevant security performance standards. If the Secretary 
disapproves of a SVA or SSP, a written notice of disapproval 
shall be issued within 14 days of such a determination that 
clearly explains the deficiencies and requires the owner or 
operator to revise the SVA or SSP.
    If the Secretary determines that an owner or operator of a 
covered chemical facility has violated or is violating the 
title, the Secretary, after providing the owner or operator the 
opportunity to consult with the Department, may issue an order 
of compliance that assesses a civil penalty or commence a civil 
action in Federal court to force compliance from a covered 
chemical facility.
    If a facility continues to be in non-compliance after an 
order of compliance is issued, the Secretary may issue an order 
to cease operations until the owner or operator comes into 
compliance. The Secretary may not, however, issue a cease 
operations order to a wastewater treatment facility. A court 
may award civil penalties of up to $50,000 per day or 
administrative penalties of up to $25,000 per day for non-
compliance. Penalties set forth in this section apply to any 
violation of this title, including violations of whistleblower 
provisions provided under section 2108.

Section 2108.   Whistleblower Protections.
    The Secretary shall establish a process for any person to 
report to the Secretary any deficiencies or vulnerabilities at 
a covered chemical facility. The identity of such a person 
shall be kept confidential. The Secretary shall acknowledge 
receipt of the information and address, where appropriate, any 
reported deficiencies or vulnerabilities. Retaliation against 
whistleblowers is prohibited.
    The Committee strongly believes that employees that come 
forward as whistleblowers and bring security concerns to the 
attention of the Secretary or the facility owner or operator 
are a critical component of a system of layered security. 
Facility owners and operators should value security conscious 
workers for their service and foster an environment where they 
can come forward without fear of retaliation.

Section 2109.   Federal Preemption.
    Any State or local government may issue a regulation, 
requirement, or standard of performance for chemical facility 
security that is more stringent than the Federal statute. The 
Committee notes that since the current CFATS regulations were 
issued on April 9, 2007, no current State law or regulation 
regarding chemical facility security has been preempted. The 
Committee expects that this provision should further protect 
the efforts of States and underscore that CFATS is intended to 
be a National baseline for chemical security that States can 
exceed.

Section 2110.   Protection of Information.
    This section identifies the types of information that must 
be protected and the procedures for safeguarding it. Protected 
information is exempt from disclosure under the Freedom of 
Information Act and State and local information disclosure 
laws.
    This section requires the Secretary to provide standards 
for the appropriate sharing of protected information with 
Federal, State, and local governments, law enforcement and 
first responders, and designated chemical facility personnel. 
This section also protects sensitive information in 
administrative or judicial proceedings under the title.
    This section does not relieve an owner or operator of any 
obligation to comply with other Federal, State, or local laws 
requiring submission of information. This section does not 
prohibit the sharing of information with Congress. Any 
authority or obligation of a Federal agency to protect or 
disclose a record or information under any other law is not 
affected. Protected information does not include information 
that is otherwise publicly available, has already been lawfully 
disclosed, or information that, if disclosed, would not be 
detrimental to the security of the facility.

Section 2111.   Methods to Reduce the Consequences of a 
Terrorist Attack.
    This section requires that each site security plan include 
an assessment of methods to reduce the consequences of a 
terrorist attack on that facility. The assessment must include 
a description of methods assessed, the degree to which each 
method would reduce consequences, the technical viability of 
the method, costs, avoided costs (including liabilities), 
savings, and applicability of implementing each method to 
reduce consequences.
    Under the title, methods to reduce the consequences of a 
terrorist attack include substitution of chemicals (or forms of 
chemicals), changes in processes, storage or use of less of a 
substance of concern on site, and improvements in inventory 
control and handling of substances of concern.
    A tier 1 or tier 2 facility is required to implement such 
method(s) to reduce the consequences of a terrorist attack if 
the Secretary determines that such method(s): (1) would 
significantly reduce the risk of death, injury, or serious 
adverse effects to human health from an attack on that facility 
and would not result in another facility being placed into tier 
1 or tier 2; (2) is technically and economically feasible to be 
incorporated into the facility's operations; and (3) would not 
significantly and demonstrably impair the ability of the 
facility to sustain operations at its current location; (4) 
would not significantly and demonstrably reduce the operations 
or reduction of the workforce at the facility; and (5) would 
not significantly transfer risk to the transportation 
infrastructure of the United States.
    When the Secretary makes a determination that 
implementation is required at a tier 1 or tier 2 covered 
chemical facility and that facility determines that it cannot 
comply, the facility must submit a written explanation to the 
Secretary within 60 days. The Secretary shall then have 60 
days, after receipt to review the written explanation. If the 
Secretary still determines that implementation is necessary, 
the owner or operator shall have 30 days to request a de novo 
hearing before an administrative law judge of the Department of 
Homeland Security, who shall render a decision within 30 days. 
If the judge finds the Secretary acted improperly, the decision 
is set aside. If the administrative law judge agrees with the 
Secretary, or if the owner or operator does not seek such a 
review, the owner or operator shall be required to begin 
implementation within 180 days.
    This section requires the Secretary to provide information 
on method(s) to reduce the consequences of a terrorist attack. 
Information that is made available to the public shall not 
identify any specific facility and must comply with the 
protection of information requirements of section 2110. 
Information on the use and availability of methods to reduce 
the consequences of a terrorist attack is to be made publicly 
available by the Secretary under this section, provided that 
the disclosure does not reveal protected or proprietary 
information.
    This section allows the Secretary to make funds available 
to facilities that are required by the Secretary to implement 
methods to reduce the consequences of a terrorist attack under 
subsection (b) to help defray the cost of implementation.
    Within one year of enactment, the Secretary is required to 
submit a report to Congress analyzing the effects of 
implementing methods to reduce the consequences of a terrorist 
attack on small businesses. The report shall include costs 
sustained and avoided, effects on employment levels, impacts on 
production efficiency, regulatory burdens, and other factors 
the Secretary considers appropriate. This section requires the 
Secretary to convene, in preparing the report to Congress, a 
stakeholder consultation that shall include experts from the 
chemical industry, including vendors of alternate technologies 
and facilities that have adopted methods to reduce the 
consequences of a terrorist attack, representatives of covered 
chemical facilities, members of the academic community, 
representatives from organized labor to include employee 
representatives as defined in this title, and additional 
stakeholders the Secretary considers to be appropriate.
    The Committee recognizes that the surest way to protect a 
facility is for the facility to not become a target in the 
first place. As such, implementing methods to reduce the 
consequences of a terrorist attack is a critical element in 
comprehensive security legislation to secure our Nation's 
chemical sector. The Committee believes that before the 
Secretary requires implementation of a method to reduce the 
consequences of a terrorist attack, the Secretary should first 
carefully consider the full impact on the operations of the 
covered chemical facility and endeavor to interact in a manner 
that is respectful of the owner or operator of the covered 
chemical facility.
    It is the intent of the Committee that in a hearing under 
paragraph (b)(4)(B), ``all relevant questions of law and 
regulation'' shall refer only to the Secretary's determinations 
under paragraph (b)(1), and the standards of analysis under 
(b)(2)(A) shall apply only to those same determinations. It is 
the intent of the Committee that the de novo hearing shall be 
constrained to only the Secretary's determinations under (b)(1) 
and will not be a forum to adduce evidence, information, or 
materials not relevant to assessing the determination by the 
administrative law judge under the Department of Homeland 
Security. The assessment information and materials presented by 
the facility owner or operator under paragraph (a) and the 
record of decision-making used by the Secretary in determining, 
with consideration of factors (b)(1)(A-E), what methods to be 
able to be implemented under (b)(1), shall be the sole source 
of evidence, information, and material presentable to the 
hearing. It is the intent of the Committee that ``inability to 
comply'' means that the facility operator or owner would 
otherwise suffer a demonstrable legal harm if forced to comply. 
Additionally, it is the intent of the Committee that nothing in 
this appeals process shall serve to replace, alter, or affect 
any other law, statute, rule, regulation, or right, 
particularly the provisions on judicial review under the 
Administrative Procedures Act, 5 U.S.C. 701-706. It is further 
the intent of the Committee that this appeals process shall not 
prevent motions to certify, in the instant, the Secretary's 
determinations, under this or other subsections, through a 
record of decision, to immediately implement compliance 
measures. At the hearing, all appropriate deference should be 
provided to the Secretary's security expertise and decision-
making ability.
    In carrying out Section 2111, the Committee recommends 
that, and in order to ensure overall public health and safety, 
wastewater facilities should also consider impacts to the 
supply chain servicing their facilities as part of preparing 
and assessing their site security plans to reduce the 
consequences of a terrorist attack. An important part of such 
review should be to identify economically feasible and 
commercially available products and procurement practices that 
could significantly reduce the threat of terrorist action that 
could result in a significant chemical releases at the facility 
or in nearby populated areas.
    Section 2111(a) requires the owner or operator of a covered 
chemical facility to assess the methods to reduce the 
consequences of a terrorist attack on that chemical facility as 
part of its site security plan. The Committee believes that, in 
implementing this requirement with respect to the agricultural 
sector, the Department should work closely with agricultural 
stakeholders, most especially agricultural retail operators, to 
ensure that implementation of the Section 2111(a) assessment 
does not detrimentally affect the availability of specific 
fertilizers containing one or more plant nutrients or a 
pesticide in the marketplace. The Committee notes that the 
legislation identifies approaches that would be eligible 
methods to reduce the consequences of a terrorist attack in a 
broad manner. The Committee notes that the extensive economic 
and business considerations in Section 2111 were further 
enhanced by amendments accepted during the Full Committee mark-
up. The Committee believes that the Department should take this 
language into account when developing any regulations or 
guidance on Section 2111 and communicate the full range of 
options that any chemical facility can exercise to comply with 
the Section 2111(a) assessment requirement. With respect to 
chemical facilities in the agricultural sector, the Committee 
believes that the Department should endeavor to communicate to 
full range of options rather than the replacement of a specific 
fertilizer or pesticide that is relied upon in agriculture.

Section 2112.   Applicability.
    This section clarifies that this title shall not apply to 
any facility owned and operated by the Department of Defense, 
or all or part of chemical facility that is subject to 
regulation of security by the Nuclear Regulatory Commission 
(NRC) or a State designated by the NRC. This title does not 
apply to the transportation in commerce (including incidental 
storage) of a substance of concern that is regulated as a 
hazardous material under Chapter 51 of title 49 of the U.S. 
Code.

Section 2113.   Savings Clause.
    This section specifies that nothing in this title affects 
section 112 of the Clean Air Act (42 U.S.C. 7412), the Federal 
Water Pollution Control Act (33 U.S.C. 1251 et seq.), the 
Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 
et seq.), the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.), the Occupational Safety and Health Act 
(29 U.S.C. 651 et seq.), the National Labor Relations Act (29 
U.S.C. 151 et seq.), the Emergency Planning and Community Right 
to Know Act of 1996 (42 U.S.C. 11001 et seq.), the Safe 
Drinking Water Act (42 U.S.C. 300f et seq.), the Maritime 
Transportation Security Act of 2002 (Public Law 107-295), the 
Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (42 U.S.C. 9601 et seq.), and the Toxic 
Substances Control Act (15 U.S.C. 2601 et seq.). In addition, 
nothing in this title shall preclude or deny the right of any 
State or political subdivision thereof to adopt or enforce any 
regulation, requirement, or standard of performance relating to 
environmental protection, health, or safety.
    The Committee intends for this measure to increase the 
security of our Nation's chemical facilities, while recognizing 
that other laws regarding public and environmental health and 
safety must not be compromised. It has come to the attention of 
the Committee that, since September 11, 2001, employers have, 
on some occasions cited security laws as a reason to abridge 
the rights of employee representatives to enter facilities. In 
enacting this savings clause, it is the intent of the Committee 
to indicate that such rights are in no way abridged.

Section 2114.   Office of Chemical Facility Security.
    This section establishes an Office of Chemical Facility 
Security, administered by a Director, within the Department of 
Homeland Security. It sets forth qualifications for the 
Director of the Office of Facility, requirements for the 
selection process, and the responsibilities of Director.

Section 2115.   Security Background Checks of Covered 
Individuals at Certain Chemical Facilities.
    This section requires the Secretary to issue regulations 
requiring covered chemical facilities to establish personnel 
surety for individuals with access to restricted areas or the 
facility's critical assets. The Secretary is required to give 
guidance to facilities on appropriate scope and applications of 
security background checks. A facility shall not make an 
adverse employment decision unless the individual in question 
has been convicted of, found not guilty by reason of insanity, 
or is under want, warrant, or indictment, or incarcerated 
within the past 5 years for a permanent or interim 
disqualifying crime under part 1572 of title 49, Code of 
Federal Regulations.
    The Secretary must provide an adequate redress process for 
an individual subjected to an adverse employment decision 
because of a background check and has the authority under this 
section to order a remedy, if warranted. A chemical facility 
may not misrepresent to an employee or labor arbiter the 
background check rules and regulations issued by the Secretary.
    Nothing in this section affects the right and 
responsibility of a person subject to a background check or an 
employer under another Federal, State, local, or tribal law, or 
affect the rights and responsibilities of facilities or 
employees covered such a law. This section does not preempt any 
other Federal, State, tribal, or local law that requires 
background checks.
    The Committee intends that fully equivalent federal 
background checks will fulfill the requirements of this 
section, including a Security Threat Assessment for Individuals 
Applying for a Hazardous Materials Endorsement for a Commercial 
Driver's License (Department of Homeland Security, 
Transportation Security Administration 49 CFR Part 1572), and a 
Transportation Worker Identification Credential (Department of 
Homeland Security, Coast Guard 33 CFR Parts 1, 20 et al. and 46 
CFR Parts 1, 4 et al., and Transportation Security 
Administration 49 CFR Parts 10, 12, and 15).
    The Committee believes that the section should be 
implemented in a manner that preserves rights relating to 
protection against adverse employment decisions that an 
employee may have under a collective bargaining agreement or 
other provisions of Federal, State, local, or tribal law.

Section 2116.   Citizen Suits.
    Any person may commence a civil action against a covered 
chemical facility or the Secretary alleging that there has been 
a violation of this law, or against the Secretary for failure 
to enforce this law. The Federal court with jurisdiction over 
the matter shall be the U.S. District Court of the district 
wherein the violation is alleged to have occurred or the U.S. 
District Court of the District of Columbia. That court shall 
have authority to enforce the requirements of this Act. Relief 
to a person who prevails in a citizen suit is limited to the 
issuance of a court order requiring performance by a Secretary 
or facility and civil penalties set forth in Section 2107. The 
court may award court costs to the prevailing side, when 
appropriate, and may require the filing of a bond (or its 
equivalent) in accordance with the Federal Rules of Civil 
Procedure.
    No person may commence a civil action without a 60-day 
notice to the Secretary or the facility alleged to be in 
violation, or if the Secretary is addressing the matter by 
seeking a civil or criminal remedy or an administrative order. 
When not a named party to the action, the Secretary has the 
right to intervene in any civil action under this section. 
Nothing in this section shall restrict any right that any 
person (or class of persons) may have under any statute or 
common law.
    The Committee believes that this section is consistent with 
the information sharing and layered security approach of the 
title. The Committee notes that this section is similar to 
citizen suit provisions in other statutes including: Clean Air 
Act, Pub. L. No. 91-604, 84 Stat. 1706 (1970) (codified as 
amended at 42 U.S.C.  7604 (2006)); Clean Water Act, Pub. L. 
No. 92-500, 86 Stat. 888 (1972) (codified as amended at 33 
U.S.C.  1365 (2006)); Safe Drinking Water Act, Pub. L. No. 93-
523, 88 Stat. 1690 (1974) (codified as amended at 42 U.S.C. 
 300j-8 (2006)); An Act to Prevent Pollution from Ships, 33 
U.S.C.  1910; Superfund Act, 42 U.S.C.  9659; Deep Water Port 
Act, 33 U.S.C.  1515; Deep Seabed Hard Mineral Resources Act, 
30 U.S.C.  1427; Emergency Planning and Community Right-to-Know 
Act, 42 U.S.C.  11046; Endangered Species Act, 16 U.S.C. 
 1540(g); Energy Conservation Program for Consumer Products, 42 
U.S.C.  6305; Marine Protection, Research and Sanctuary Act, 33 
U.S.C.  1415(g); National Forests, Columbia River Gorge 
National Scenic Area, 16 U.S.C.  544m(b); Natural Gas Pipeline 
Safety Act, 49 U.S.C.  1686; Noise Control Act, 42 U.S.C. 
 4911; Ocean Thermal Energy Conservation Act, 42 U.S.C.  9124; 
Outer Continental Shelf Lands Act, 43 U.S.C.  1349(a); 
Powerplant and Industrial Fuel Use Act, 42 U.S.C.  8435; 
Resource Conservation and Recovery Act, 42 U.S.C.  6972; 
Surface Mining Control and Reclamation Act, 30 U.S.C.  1270; 
Toxic Substances Control Act, 15 U.S.C.  2619.
    Additionally, the Committee notes that the Nuclear 
Regulatory Commission which, like the Department, is a security 
agency, is subject to suits brought by citizens.
    The Committee expects that information provided during such 
proceedings should be maintained in accordance with existing 
protections for classified and sensitive materials including 
but not limited to the protections set forth in Section 2110 of 
this title.

Section 2117.   Annual Report to Congress.
    This section requires a report to Congress on the progress 
of implementation of this title not later than one year from 
the date of enactment and annually for the next four years and 
biennially thereafter. This report must include a qualitative 
discussion of how covered chemical facilities have reduced 
their risk of chemical facility terrorist incidents and a 
quantitative summary of the number of facilities that submitted 
information to DHS, the number of facilities in each tier, the 
number of SVAs and SSP submitted and approved or disapproved, 
changes in tier due to implementation of methods to reduce 
consequences, number of compliance orders or penalties issued 
by the Secretary, and any other information deemed necessary by 
the Secretary. The report will be made publicly available.
    The Committee intends that the assessment of programs, 
plans, and procedures should describe and enumerate the scope 
of the program using aggregate information, including but not 
limited to the number of facilities that are covered; number 
that are in compliance; number that have implemented methods to 
reduce consequences of a terrorist attack; number that are in 
each risk tier; number that have moved to a lower risk tier; 
and, for each risk tier, the number of facilities sorted by 
population at risk in and around each facility.
    It is the intent of the Committee that the annual report to 
Congress shall include qualitative and quantitative information 
on the types of methods to reduce the consequences of a 
terrorist attack used by chemical facilities, including 
facilities that since any prior report to Congress under this 
section are no longer assigned to a risk-based tier by the 
Secretary as a result of the implementation of such methods.

Section 2118.   Authorization of Appropriations.
    This section authorizes $325 million for fiscal year (FY) 
2011 to carry out the requirements of this Act, which includes 
$225 million for Departmental expenditures in carrying out this 
Act and $100 million for facilities to fund capital costs 
incurred from implementing methods to reduce the consequences 
of a terrorist attack. The section authorizes $300 million for 
FY 2012, with $225 million for Departmental expenditures and 
$75 million for consequence reduction, and $275 million for FY 
2013, with $225 million for Departmental expenditures and $50 
million for consequence reduction.
    The following sections are part of the legislation but do 
not amend the Homeland Security Act of 2002:
(b) Clerical Amendment.
    Updates the table of contents for of the Homeland Security 
Act of 2002 to reflect the amendments made by this bill.
(c) Conforming Repeal.
    Section 550 of the Department of Homeland Security 
Appropriations Act, 2007 (Public Law 109-295) is struck on 
October 1, 2009.
(d) Treatment of CFATS Regulations.
    It is the sense of Congress that the DHS Secretary was 
granted the authority to regulate security at chemical 
facilities pursuant to section 550 of P.L. 109-295, and that 
such authority will sunset on October 1, 2009. Under that 
authority, the Secretary promulgated the CFATS regulations. In 
carrying out the requirements of this Act, the Secretary may 
use whatever parts of CFATS and tools developed under the April 
9, 2007 CFATS regulation that are relevant in carrying out this 
Act, and shall amend CFATS in order to carry out new 
requirements that the current CFATS regulations do not cover.
(e) Facilities Covered by CFATS.
    Owners or operators of facilities currently that are 
covered by CFATS (in place pursuant to section 550 of P.L. 109-
295) shall update their previously-approved SVAs and SSPs in 
order to comply with the requirements of this Act on a timeline 
determined by the Secretary.
(f) Consultation With Other Persons.
    The Secretary shall consult with the Administrator of the 
Environmental Protection Agency, and other appropriate persons 
regarding the designation of substances of concern, methods to 
reduce the consequences of a terrorist attack, security at co-
owned or co-operated drinking water and wastewater facilities, 
treatment of protected information, and other such matters that 
the Secretary deems appropriate.
(g) Deadline for Regulations.
    The Secretary shall promulgate a proposed rule within 6 
months of passage of this Act, and, after a notice and comment 
period, shall promulgate a final rule within 18 months of 
passage of this Act. The Committee intends for all Federal 
Agencies to take into account all necessary regulatory 
processes and timelines to guarantee full implementation by 
this date.
(h) Review of Designation Sodium Fluoroacetate as a Substance 
of Concern.
    The Secretary shall review the designation of sodium 
fluoroacetate as a substance of concern as part of her next 
periodic review, or within one year after passage of this Act, 
whichever is sooner.

         Changes in Existing Law Made by the Bill, as Reported

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

                     HOMELAND SECURITY ACT OF 2002


SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) * * *

           *       *       *       *       *       *       *

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


   TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES

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

   TITLE XXI--REGULATION OF SECURITY PRACTICES AT CHEMICAL FACILITIES

SEC. 2101. DEFINITIONS.

  In this title, the following definitions apply:
          (1) The term ``chemical facility'' means any 
        facility--
                  (A) at which the owner or operator of the 
                facility possesses or plans to possess at any 
                relevant point in time a substance of concern; 
                or
                  (B) that meets other risk-related criteria 
                identified by the Secretary.
          (2) The term ``chemical facility security performance 
        standards'' means risk-based standards established by 
        the Secretary to ensure or enhance the security of a 
        chemical facility against a chemical facility terrorist 
        incident that are designed to address the following:
                  (A) Restricting the area perimeter.
                  (B) Securing site assets.
                  (C) Screening and controlling access to the 
                facility and to restricted areas within the 
                facility by screening or inspecting individuals 
                and vehicles as they enter, including--
                          (i) measures to deter the 
                        unauthorized introduction of dangerous 
                        substances and devices that may 
                        facilitate a chemical facility 
                        terrorist incident or actions having 
                        serious negative consequences for the 
                        population surrounding the chemical 
                        facility; and
                          (ii) measures implementing a 
                        regularly updated identification system 
                        that checks the identification of 
                        chemical facility personnel and other 
                        persons seeking access to the chemical 
                        facility and that discourages abuse 
                        through established disciplinary 
                        measures.
                  (D) Methods to deter, detect, and delay a 
                chemical facility terrorist incident, creating 
                sufficient time between detection of a chemical 
                facility terrorist incident and the point at 
                which the chemical facility terrorist incident 
                becomes successful, including measures to--
                          (i) deter vehicles from penetrating 
                        the chemical facility perimeter, 
                        gaining unauthorized access to 
                        restricted areas, or otherwise 
                        presenting a hazard to potentially 
                        critical targets;
                          (ii) deter chemical facility 
                        terrorist incidents through visible, 
                        professional, well-maintained security 
                        measures and systems, including 
                        security personnel, detection systems, 
                        barriers and barricades, and hardened 
                        or reduced value targets;
                          (iii) detect chemical facility 
                        terrorist incidents at early stages 
                        through counter surveillance, 
                        frustration of opportunity to observe 
                        potential targets, surveillance and 
                        sensing systems, and barriers and 
                        barricades; and
                          (iv) delay a chemical facility 
                        terrorist incident for a sufficient 
                        period of time so as to allow 
                        appropriate response through on-site 
                        security response, barriers and 
                        barricades, hardened targets, and well-
                        coordinated response planning.
                  (E) Securing and monitoring the shipping, 
                receipt, and storage of a substance of concern 
                for the chemical facility.
                  (F) Deterring theft or diversion of a 
                substance of concern.
                  (G) Deterring insider sabotage.
                  (H) Deterring cyber sabotage, including by 
                preventing unauthorized onsite or remote access 
                to critical process controls, including 
                supervisory control and data acquisition 
                systems, distributed control systems, process 
                control systems, industrial control systems, 
                critical business systems, and other sensitive 
                computerized systems.
                  (I) Developing and exercising an internal 
                emergency plan for owners, operators, and 
                covered individuals of a covered chemical 
                facility for responding to chemical facility 
                terrorist incidents at the facility. Any such 
                plan shall include the provision of appropriate 
                information to any local emergency planning 
                committee, local law enforcement officials, and 
                emergency response providers to ensure an 
                effective, collective response to terrorist 
                incidents.
                  (J) Maintaining effective monitoring, 
                communications, and warning systems, 
                including--
                          (i) measures designed to ensure that 
                        security systems and equipment are in 
                        good working order and inspected, 
                        tested, calibrated, and otherwise 
                        maintained;
                          (ii) measures designed to regularly 
                        test security systems, note 
                        deficiencies, correct for detected 
                        deficiencies, and record results so 
                        that they are available for inspection 
                        by the Department; and
                          (iii) measures to allow the chemical 
                        facility to promptly identify and 
                        respond to security system and 
                        equipment failures or malfunctions.
                  (K) Ensuring mandatory annual security 
                training, exercises, and drills of chemical 
                facility personnel appropriate to their roles, 
                responsibilities, and access to chemicals, 
                including participation by local law 
                enforcement, local emergency response 
                providers, appropriate supervisory and non-
                supervisory facility employees and their 
                employee representatives, if any.
                  (L) Performing personnel surety for 
                individuals with access to restricted areas or 
                critical assets by conducting appropriate 
                background checks and ensuring appropriate 
                credentials for unescorted visitors and 
                chemical facility personnel, including 
                permanent and part-time personnel, temporary 
                personnel, and contract personnel, including--
                          (i) measures designed to verify and 
                        validate identity;
                          (ii) measures designed to check 
                        criminal history;
                          (iii) measures designed to verify and 
                        validate legal authorization to work; 
                        and
                          (iv) measures designed to identify 
                        people with terrorist ties.
                  (M) Escalating the level of protective 
                measures for periods of elevated threat.
                  (N) Specific threats, vulnerabilities, or 
                risks identified by the Secretary for that 
                chemical facility.
                  (O) Reporting of significant security 
                incidents to the Department and to appropriate 
                local law enforcement officials.
                  (P) Identifying, investigating, reporting, 
                and maintaining records of significant security 
                incidents and suspicious activities in or near 
                the site.
                  (Q) Establishing one or more officials and an 
                organization responsible for--
                          (i) security;
                          (ii) compliance with the standards 
                        under this paragraph;
                          (iii) serving as the point of contact 
                        for incident management purposes with 
                        Federal, State, local, and tribal 
                        agencies, law enforcement, and 
                        emergency response providers; and
                          (iv) coordination with Federal, 
                        State, local, and tribal agencies, law 
                        enforcement, and emergency response 
                        providers regarding plans and security 
                        measures for the collective response to 
                        a chemical facility terrorist incident.
                  (R) Maintaining appropriate records relating 
                to the security of the facility, including a 
                copy of the most recent security vulnerability 
                assessment and site security plan at the 
                chemical facility.
                  (S) Assessing and, as appropriate, utilizing 
                methods to reduce the consequences of a 
                terrorist attack.
                  (T) Methods to recover or mitigate the 
                release of a substance of concern in the event 
                of a chemical facility terrorist incident.
                  (U) Any additional security performance 
                standards the Secretary may specify.
          (3) The term ``chemical facility terrorist incident'' 
        means any act or attempted act of terrorism or 
        terrorist activity committed at, near, or against a 
        chemical facility, including--
                  (A) the release of a substance of concern 
                from a chemical facility;
                  (B) the theft, misappropriation, or misuse of 
                a substance of concern from a chemical 
                facility; or
                  (C) the sabotage of a chemical facility or a 
                substance of concern at a chemical facility.
          (4) The term ``employee representative'' means the 
        representative of the certified or recognized 
        bargaining agent engaged in a collective bargaining 
        relationship with a private or public owner or operator 
        of a chemical facility.
          (5) The term ``covered individual'' means a 
        permanent, temporary, full-time, or part-time employee 
        of a covered chemical facility or an employee of an 
        entity with which the covered chemical facility has 
        entered into a contract who is performing 
        responsibilities at the facility pursuant to the 
        contract.
          (6) The term ``covered chemical facility'' means a 
        chemical facility that meets the criteria of section 
        2102(b)(1).
          (7) The term ``environment'' means--
                  (A) the navigable waters, the waters of the 
                contiguous zone, and the ocean waters of which 
                the natural resources are under the exclusive 
                management authority of the United States under 
                the Magnuson-Stevens Fishery Conservation and 
                Management Act (16 U.S.C. 1801 et seq.); and
                  (B) any other surface water, ground water, 
                drinking water supply, land surface or 
                subsurface strata, or ambient air within the 
                United States or under the jurisdiction of the 
                United States.
          (8) The term ``owner or operator'' with respect to a 
        facility means any of the following:
                  (A) The person who owns the facility.
                  (B) The person who has responsibility for 
                daily operation of the facility.
                  (C) The person who leases the facility.
          (9) The term ``person'' means an individual, trust, 
        firm, joint stock company, corporation (including a 
        government corporation), partnership, association, 
        State, municipality, commission, political subdivision 
        of a State, or any interstate body and shall include 
        each department, agency, and instrumentality of the 
        United States.
          (10) The term ``release'' means any spilling, 
        leaking, pumping, pouring, emitting, emptying, 
        discharging, injecting, escaping, leaching, dumping, or 
        disposing into the environment (including the 
        abandonment or discarding of barrels, containers, and 
        other closed receptacles containing any hazardous 
        substance or pollutant or contaminant), 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.

SEC. 2102. RISK-BASED DESIGNATION AND RANKING OF CHEMICAL FACILITIES.

  (a) Substances of Concern.--
          (1) Designation by the secretary.--The Secretary may 
        designate any chemical substance as a substance of 
        concern and establish the threshold quantity for each 
        such substance of concern.
          (2) Matters for consideration.--In designating a 
        chemical substance or establishing or adjusting the 
        threshold quantity for a chemical substance under 
        paragraph (1), the Secretary shall consider the 
        potential extent of death, injury, and serious adverse 
        effects to human health, the environment, critical 
        infrastructure, public health, homeland security, 
        national security, and the national economy that could 
        result from a chemical facility terrorist incident.
  (b) List of Covered Chemical Facilities.--
          (1) Criteria for list of facilities.--The Secretary 
        shall maintain a list of covered chemical facilities 
        that the Secretary determines are of sufficient 
        security risk for inclusion on the list based on the 
        following criteria:
                  (A) The potential threat or likelihood that 
                the chemical facility will be the target of a 
                chemical facility terrorist incident.
                  (B) The potential extent and likelihood of 
                death, injury, or serious adverse effects to 
                human health, the environment, critical 
                infrastructure, public health, homeland 
                security, national security, and the national 
                economy that could result from a chemical 
                facility terrorist incident.
                  (C) The proximity of the chemical facility to 
                large population centers.
          (2) Submission of information.--The Secretary may 
        require the submission of information with respect to 
        the quantities of substances of concern that an owner 
        or operator of a chemical facility possesses or plans 
        to possess in order to determine whether to designate a 
        chemical facility as a covered chemical facility for 
        purposes of this title.
  (c) Assignment of Chemical Facilities to Risk-Based Tiers.--
          (1) Assignment.--The Secretary shall assign each 
        covered chemical facility to one of four risk-based 
        tiers established by the Secretary, with tier one 
        representing the highest degree of risk and tier four 
        the lowest degree of risk.
          (2) Provision of information.--The Secretary may 
        request, and the owner or operator of a covered 
        chemical facility shall provide, any additional 
        information beyond any information required to be 
        submitted under subsection (b)(2) that may be necessary 
        for the Secretary to assign the chemical facility to 
        the appropriate tier under paragraph (1).
          (3) Notification.--Not later than 60 days after the 
        date on which the Secretary determines that a chemical 
        facility is a covered chemical facility or is no longer 
        a covered chemical facility or changes the tier 
        assignment under paragraph (1) of a covered chemical 
        facility, the Secretary shall notify the owner or 
        operator of that chemical facility of that 
        determination or change together with the reason for 
        the determination or change and, upon the request of 
        the owner or operator of a covered chemical facility, 
        provide to the owner or operator of the covered 
        chemical facility the following information:
                  (A) The number of individuals at risk of 
                death, injury, or severe adverse effects to 
                human health as a result of a worst case 
                chemical facility terrorist incident at the 
                covered chemical facility.
                  (B) Information related to the criticality of 
                the covered chemical facility.
                  (C) The proximity or interrelationship of the 
                covered chemical facility to other critical 
                infrastructure.
  (d) Requirement for Review.--The Secretary--
          (1) shall periodically review--
                  (A) the designation of a substance of concern 
                and the threshold quantity under subsection 
                (a)(1); and
                  (B) the criteria under subsection (b)(1); and
          (2) may at any time determine whether a chemical 
        facility is a covered chemical facility or change the 
        tier to which such a facility is assigned under 
        subsection (c)(1).
  (e) Provision of Threat-Related Information.--In order to 
effectively assess the vulnerabilities to a covered chemical 
facility, the Secretary shall provide to the owner, operator, 
or security officer of a covered chemical facility threat 
information regarding probable threats to the facility and 
methods that could be used in a chemical facility terrorist 
incident.

SEC. 2103. SECURITY VULNERABILITY ASSESSMENTS AND SITE SECURITY PLANS.

  (a) In General.--
          (1) Requirement.--The Secretary shall--
                  (A) establish standards, protocols, and 
                procedures for security vulnerability 
                assessments and site security plans to be 
                required for covered chemical facilities;
                  (B) require the owner or operator of each 
                covered chemical facility to--
                          (i) conduct an assessment of the 
                        vulnerability of the covered chemical 
                        facility to a range of chemical 
                        facility terrorist incidents, including 
                        an incident that results in a worst-
                        case release of a substance of concern;
                          (ii) prepare 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.

SEC. 2104. SITE INSPECTIONS.

  (a) Right of Entry.--For purposes of carrying out this title, 
the Secretary shall have, at a reasonable time and on 
presentation of credentials, a right of entry to, on, or 
through any property of a covered chemical facility or any 
property on which any record required to be maintained under 
this section is located.
  (b) Inspections and Verifications.--
          (1) In general.--The Secretary shall, at such time 
        and place as the Secretary determines to be reasonable 
        and appropriate, conduct chemical facility security 
        inspections and verifications.
          (2) Requirements.--To ensure and evaluate compliance 
        with this title, including any regulations or 
        requirements adopted by the Secretary in furtherance of 
        the purposes of this title, in conducting an inspection 
        or verification under paragraph (1), the Secretary 
        shall have access to the owners, operators, employees, 
        and employee representatives, if any, of a covered 
        chemical facility.
  (c) Unannounced Inspections.--In addition to any inspection 
conducted pursuant to subsection (b), the Secretary shall 
require covered chemical facilities assigned to tier 1 and tier 
2 under section 2102(c)(1) to undergo unannounced facility 
inspections. The inspections required under this subsection 
shall be--
          (1) conducted without prior notice to the facility;
          (2) designed to evaluate at the chemical facility 
        undergoing inspection--
                  (A) the ability of the chemical facility to 
                prevent a chemical facility terrorist incident 
                that 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.

SEC. 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.

SEC. 2106. TIMELY SHARING OF THREAT INFORMATION.

  (a) Responsibilities of Secretary.--Upon the receipt of 
information concerning a threat that is relevant to a certain 
covered chemical facility, the Secretary shall provide such 
information in a timely manner, to the maximum extent 
practicable under applicable authority and in the interests of 
national security, to the owner, operator, or security officer 
of that covered chemical facility, 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.

SEC. 2107. ENFORCEMENT.

  (a) Review of Site Security Plan.--
          (1) Disapproval.--The Secretary shall disapprove a 
        security vulnerability assessment or site security plan 
        submitted under this title if the Secretary determines 
        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.

SEC. 2108. WHISTLEBLOWER PROTECTIONS.

  (a) Establishment.--The Secretary shall establish and provide 
information to the public regarding a process by which any 
person may submit a report to the Secretary regarding problems, 
deficiencies, or vulnerabilities at a covered chemical facility 
associated with the risk of a chemical facility terrorist 
incident.
  (b) Confidentiality.--The Secretary shall keep confidential 
the identity of a person that submits a report under subsection 
(a) and any such report shall be treated as protected 
information under section 2110 to the extent that it does not 
consist of publicly available information.
  (c) Acknowledgment of Receipt.--If a report submitted under 
subsection (a) identifies the person submitting the report, the 
Secretary shall respond promptly to such person to acknowledge 
receipt of the report.
  (d) Steps to Address Problems.--The Secretary shall review 
and consider the information provided in any report submitted 
under subsection (a) and shall, as necessary, take appropriate 
steps under this title to address any problem, deficiency, or 
vulnerability identified in the report.
  (e) Retaliation Prohibited.--
          (1) Prohibition.--No owner or operator of a covered 
        chemical facility, 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.

SEC. 2109. FEDERAL PREEMPTION.

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

SEC. 2110. PROTECTION OF INFORMATION.

  (a) Prohibition of Public Disclosure of Protected 
Information.--Protected information, as described in subsection 
(g), 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.

SEC. 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.

SEC. 2112. APPLICABILITY.

  This title shall not apply to--
          (1) any chemical facility that is owned and operated 
        by the Secretary of Defense;
          (2) the transportation in commerce, including 
        incidental storage, of any substance of concern 
        regulated as a hazardous material under chapter 51 of 
        title 49, United States Code; 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.

SEC. 2113. SAVINGS CLAUSE.

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

SEC. 2114. OFFICE OF CHEMICAL FACILITY SECURITY.

  (a) In General.--There is established in the Department an 
Office of Chemical Facility Security, headed by a Director, who 
shall be a member of the Senior Executive Service in accordance 
with subchapter VI of chapter 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.

SEC. 2115. SECURITY BACKGROUND CHECKS OF COVERED INDIVIDUALS AT CERTAIN 
                    CHEMICAL FACILITIES.

  (a) Regulations Issued by the Secretary.--
          (1) In general.--
                  (A) Requirement.--The Secretary shall issue 
                regulations to require covered chemical 
                facilities to establish personnel surety for 
                individuals described in subparagraph (B) by 
                conducting appropriate security background 
                checks and ensuring appropriate credentials for 
                unescorted visitors and chemical facility 
                personnel, including permanent and part-time 
                personnel, temporary personnel, and contract 
                personnel, including--
                          (i) measures designed to verify and 
                        validate identity;
                          (ii) measures designed to check 
                        criminal history;
                          (iii) measures designed to verify and 
                        validate legal authorization to work; 
                        and
                          (iv) measures designed to identify 
                        people with terrorist ties.
                  (B) Individuals described.--For purposes of 
                subparagraph (A), an individual described in 
                this subparagraph is 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.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.
                              ----------                              


        DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2007



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

           *       *       *       *       *       *       *


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

           *       *       *       *       *       *       *


                     Additional and Minority Views

                             MINORITY VIEWS

                              INTRODUCTION

    The Republican Members of the Committee on Homeland 
Security (Committee) recognize and appreciate the level of 
bipartisan collaboration in the initial drafting of the 
Chemical Facility Anti-Terrorism Act of 2009, H.R. 2868. The 
Majority included Republican participation and incorporated 
Republican input and provisions throughout the process. 
Additionally, Republican representation was invited to many of 
the discussions with the Committee on Energy and Commerce as 
both Majorities sought to develop and introduce a mutually 
agreeable bill. Therefore, it is regrettable that such 
significant policy divisions remained, making it impossible for 
the Republican Members of the Committee to support the final 
product.
    Republican Members also were concerned with the timing of 
the Majority's scheduling of H.R. 2868 for action by the full 
Committee. The Majority moved forward on the legislation, 
despite requests from the Department of Homeland Security, 
President Obama, and major stakeholders (including the 
agriculture industry) to provide more time for constructive 
input and for the Department to complete implementation of its 
new regulations. The Republican Members' principal concerns 
surround two major issues: (1) a mandate to assess and 
implement methods to reduce the consequences of a terrorist 
attack, referred to as ``inherently safer technology'' (IST); 
and (2) a provision that would allow any person to file a civil 
lawsuit against a chemical facility or the Secretary of 
Homeland Security. These provisions are more applicable to 
environmental policy than to security policy. Republican 
Members remain convinced that mandatory assessments and 
implementation of IST will ultimately cost American jobs. 
Further, we share the Department's concerns that allowing the 
Secretary to become the subject of extensive civil litigation 
is unnecessary and burdensome, and we are disappointed that an 
amendment offered by Mr. McCaul, which would have addressed the 
Majority's concerns was voted down on a party-line vote.

                         REPUBLICAN PROVISIONS

    Republican Members strongly object to the Majority's 
control of the roster for amendments, their rejection of a 
reasonable Unanimous Request from Republican Members, and their 
insistence on controlling the order in which amendments were 
offered. For example, the Majority insisted on a roster to 
ensure that Republican amendments to strike sections 2111 
(addressing IST) and 2116 (addressing civil suits) were 
considered only after those sections were modified by other 
Republican amendments.
Amendments relating to inherently safer technologies
    H.R. 2868 allows the owner or operator of a tier 1 or tier 
2 covered chemical facility who is unable to implement IST to 
``appeal'' to the Secretary and justify why implementation is 
not practical. The Secretary would then make a final decision 
about whether the owner/operator must comply and implement IST. 
In the view of Republican Members, appealing the Secretary's 
decision to the Secretary is no appeal at all. Republican 
Members were pleased, therefore, when the Committee adopted an 
amendment by Mr. Lungren that allows the owner or operator of a 
facility to appeal the Secretary's decision to an 
administrative law judge who would hold a de novo hearing and 
require the Secretary to prove his/her decision was lawful, 
proper, and supported by substantial evidence. We appreciate 
the Majority's overwhelming support for this amendment, as 
evidenced by Democratic Members' requests to cosponsor the 
amendment.
    The bill also requires the Secretary to implement IST at 
tier 1 and tier 2 facilities if: (1) it reduces risk, (2) would 
not create a new high-risk facility elsewhere, (3) is feasible, 
and (4) would allow the facility to continue its business at 
its present location. In this process, the Secretary is not 
required to consider the impact on the local economy and on the 
local workforce. Therefore, the Committee adopted an amendment 
by Mr. Dent and Mr. Souder that only allows the Secretary to 
implement IST if he/she determines that the implementation 
``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.'' As a result 
of this thoughtful amendment, the Secretary must first consider 
the impact of IST on hard-working Americans and their 
livelihood.
    Republican Members were concerned that the bill language 
enables the Secretary to mandate IST based on his/her 
individual interpretation of a facility's site security plan 
and how IST might reduce some risk. The Secretary was not 
required to consult any other party prior to making a decision 
on IST implementation. During the Committee's budget hearings 
with Secretary Napolitano and Deputy Under Secretary Phillip 
Reitinger, it became obvious that the Department has only 
cursory experience with the process of IST, how it might be 
implemented, and what would be its major impacts. Therefore, 
the Committee adopted an amendment offered by Mr. Dent 
requiring the Secretary to conduct a comprehensive analysis on 
the impacts of mandatory implementation of IST, in consultation 
with various stakeholder groups. An analysis that includes 
input from subject matter experts, labor representatives, and 
academics would provide vital information to the Secretary on 
the challenges and likely impacts associated with IST 
implementation.
    Ms. Miller offered a perfecting amendment that would have 
required the Secretary to consider agricultural interests in 
conducting this study, including representatives from the 
agriculture industry. Unfortunately, the Majority voted 
overwhelmingly against this perfecting amendment, which would 
have done nothing more than ensure the unique concerns 
associated with the agriculture industry were considered in the 
Secretary's analysis. Republican Members remain deeply 
concerned that IST assessments and mandatory implementation are 
expensive propositions for small family farms that feed 
Americans and much of the world.
    Recognizing the special challenges associated with imposing 
new expensive governmental mandates on small businesses, Mr. 
Austria offered an amendment to exempt small businesses from 
mandatory IST assessment and implementation. It is unfortunate 
that the Majority gutted this amendment by instead requiring 
the Secretary to simply report on the impact of IST assessments 
and implementation on small businesses. Even if the Secretary 
were to determine that small businesses were disproportionately 
impacted by mandatory IST assessments and implementation, the 
Majority's modifications to the amendment would not allow the 
Secretary to exempt these businesses.
    One of the Republican Members' deepest concerns surrounding 
IST is the possibility of shifting or spreading risk elsewhere, 
specifically to other, less protected sectors. It is possible 
to reduce the consequences of a terrorist attack at any given 
facility by storing fewer chemicals on site. However, moving 
from a ``store on site'' model to a ``just in time delivery'' 
model requires more frequent shipments of smaller quantities of 
chemicals. In turn, this puts more trucks on our Nation's 
highways carrying hazardous materials. The Committee adopted an 
amendment by Mr. Souder aimed at alleviating this concern. It 
prohibits mandatory IST implementation for tier 1 and tier 2 
facilities if such implementation would shift or transfer risk 
to various transportation modes, including highways, bus, and 
rail.
Amendments relating to civil suits
    While the base bill does include a negotiated provision 
providing protection for chemical facility whistleblowers, 
there is concern that these individuals may be deterred from 
coming forward because of a lack of guaranteed anonymity. 
Further, the Majority repeatedly argued their justification for 
section 2116 providing for civil lawsuits by uninjured third 
parties was to enable concerned citizens and neighbors of 
chemical facilities to register their concerns with the 
Department and ensure timely and appropriate action. An 
amendment offered by Mr. Austria and adopted by the Committee 
requires the Secretary to establish a telephone and online 
``tip line'' to provide an anonymous, swift, and effective 
method for concerned citizens to inform the Department about 
security deficiencies. Most importantly, it requires the 
Department to respond to concerned citizens in a timely manner, 
providing much-needed feedback and ensuring the Department's 
accountability to the public. Although Mr. Austria's amendment 
was accepted, it was disappointing that the Majority could not 
accept this language in lieu of section 2116.
Other Republican provisions
    H.R. 2868 requires regular inspections of all approximately 
7,000 covered chemical facilities and includes a requirement 
for unannounced inspections for tier 1 and 2 facilities. This 
is an overwhelming task for the Department's limited number of 
140 inspectors. The Committee adopted an amendment by Mr. Cao 
requiring the Secretary to hire at least 100 additional 
inspectors for both fiscal years 2010 and 2011. While the 
Department will need more inspectors, the additional personnel 
provided by this amendment will help the Department build an 
experienced, capable core group of inspectors with the 
necessary skills to ensure these chemical facilities comply 
with the requirements of this Act. It was disappointing, 
however, to see the Majority reject an amendment offered by Mr. 
Bilirakis that would have provided the department with limited 
direct hiring authority for two years to facilitate the hiring 
of these new inspectors. A targeted two-year direct hiring 
authority seemed prudent in this limited circumstance given the 
current lengthy hiring process at the Department.
    Finally, an amendment offered on behalf of Dr. Broun would 
require the owner or operator of a covered chemical facility to 
terminate an employee who is not legally authorized to work in 
the United States pursuant to a security background check. 
Those who fail such a background check have absolutely no 
business working in such close proximity to potentially 
dangerous chemicals or having access to sensitive information.

REMAINING REPUBLICAN CONCERNS SURROUNDING INHERENTLY SAFER TECHNOLOGIES

    Despite the support for the amendments discussed above, 
Republican Members of the Committee remain deeply concerned 
that H.R. 2868 does not adequately consider the expert 
testimony from the hearing the Committee held on June 16, 2009. 
The bill also does not adequately address the concerns 
expressed in several dozen letters sent to the Committee from 
various business organizations, including state chemical and 
agricultural interests. Further, despite repeated requests from 
the Department and the Administration, the Majority was 
unwilling to entertain a one-year extension of the Department's 
current chemical facility regulatory authority. In fact, 
President Obama's Fiscal Year 2010 budget request submitted to 
Congress included this request, which was included by the 
Appropriations Committee in H.R. 2892, the Homeland Security 
Appropriations Act, 2010.
    Deputy Under Secretary Reitinger from the Department's 
National Protection Programs Directorate testified that 
``[they] would need to go farther and certainly bring in some 
additional experts'' in order to effectively determine whether 
a tier 1 or tier 2 facility should implement IST. Deputy Under 
Secretary Reitinger informed the Committee that the Department 
has no IST specialists, and the President's FY 2010 budget 
request did not include funding for specialized IST staff. This 
testimony overwhelmingly suggests that the Department is void 
of personnel qualified to make educated decisions regarding IST 
issues.
    The second panel of witnesses communicated clear skepticism 
in regards to mandating IST. The Committee heard expert 
testimony from Mr. Paul Baldauf of the New Jersey Department of 
Environmental Protection. Mr. Baldauf conveyed his support for 
New Jersey's approach to IST: ``strict evaluation.'' New Jersey 
does not mandate IST implementation, and only requires IST 
assessments from its 45 of 157 chemical facilities--those 
deemed of greatest risk. Mr. Marty Durbin of the American 
Chemistry Council echoed this sentiment, stating, ``it is not 
appropriate to mandate [IST].'' Dr. Langerman of Advanced 
Chemical Safety, Inc., provided an example of a situation in 
which substituting a ``safer'' chemical would have resulted in 
almost 15 times more pollutants. Finally, Mr. Jeppeson of the 
California Ammonia Company stated that requiring IST could have 
a ``devastating impact on American agriculture.'' This panel of 
witnesses provided examples of when IST would result in 
decreased security. It should be noted that the Republican 
Members invited only one of these witnesses.
    These two panels of expert witnesses unequivocally conveyed 
disapproval towards mandatory IST implementation. However, the 
Majority rejected Mr. Dent's amendment to strike the offending 
IST provision from the bill. The Majority disregarded evidence 
indicating the lack of expertise in the Department and the 
subjectivity inherent in IST.
    Surprisingly, the Majority also rejected Dr. Broun's 
amendment to modify the IST provisions to reflect the State of 
New Jersey's practice of focusing limited resources on the 
highest risk facilities. During debate among Members, New 
Jersey was referred to as ``a standard-bearer nationally for 
chemical security protections.'' The Majority then voted 
against Dr. Broun's amendment, which mirrors New Jersey's 
policy of mandating IST assessments for higher risk tier 1 and 
tier 2 facilities, but not requiring implementation.
    While Republican Members of the Committee are pleased with 
the successful modifications of the IST provisions to protect 
American jobs, they agree with the expert witnesses and remain 
concerned about any mandatory IST implementation.

           REPUBLICAN CONCERNS REMAIN SURROUNDING CIVIL SUITS

    Further, Republican Members are disappointed with the 
bill's inclusion of an egregious provision that allows any 
uninjured third party to sue ``any person'' in violation of 
this Act--including the Secretary. Republican Members and Obama 
Administration officials are especially concerned with two side 
effects of this provision--disclosure of confidential 
information and diversion of resources.
    Despite the Majority's insistence that the bill provides 
ample protection for certain classified information, Deputy 
Under Secretary Reitinger firmly expressed his concern that 
``civil litigation leads to, no matter what the protections 
are, a higher likelihood of disclosure of information.'' An 
amendment by Mr. Souder to prohibit any civil action in which 
the Secretary or other party must divulge sensitive information 
would have addressed concerns held by Mr. Reitinger and the 
Republican Members regarding this consequence of the bill. 
Unfortunately, this amendment was not adopted, and the 
threatening possibility of publicizing sensitive information 
remains.
    The possibility of divulging official information could 
also have been reduced by an amendment by Mr. Cao to modify the 
definition of ``employee representative'' to include only those 
who are also employees at the facility. This amendment ensures 
that only those who work at the facility with a genuine ``need 
to know'' will have direct knowledge about the facility's 
vulnerability and security. The Republican Members are 
disappointed that the amendment was rejected, thereby 
jeopardizing sensitive information and security in favor of 
including employee representatives from outside the facility in 
the requirements under H.R. 2868.
    In addition, Republican Members remain concerned that the 
Department will be forced to divert substantial resources 
toward this litigation. Deputy Under Secretary Reitinger 
testified that ``certainly, it is true that any civil suit 
provision at least raises the specter of some diversion of 
resources.'' This is a major problem. It is the first time that 
the Department will be exposed to citizen lawsuits since the 
Department was established in 2003. In response, the amendment 
by Dr. Broun to strike the civil suits provision would have 
eliminated not only the possibility of divulging sensitive 
information, but also the certain draining of the Department's 
finite resources. Republican Members believe it is 
inappropriate and damaging to incorporate environmental 
enforcement provisions in security and counterterrorism 
programs.
    The Republican Members of the Committee are especially 
disappointed that the amendment by Mr. McCaul to replace the 
civil suits provision with a civil complaints procedure was not 
adopted. Ultimately, the goal of any enforcement provision 
should be compliance with the underlying law or regulation. Mr. 
McCaul's alternative approach did exactly that, while 
addressing each of the concerns described by Deputy Under 
Secretary Reitinger in his testimony before the Committee. The 
amendment would have held the Secretary and covered chemical 
facilities accountable, provided vigilant citizens a chance to 
have their complaints addressed, and limited the burden on the 
Department's Office of the General Counsel and its senior 
officials. Most importantly, the amendment would have 
eliminated the threat of divulging sensitive information to the 
public. Republican Members regret that this fair compromise was 
not agreed to by the Majority.

 REPUBLICAN CONCERNS REGARDING TIMING OF COMMITTEE ACTION ON H.R. 2868

    Republican Members are surprised that the Majority refused 
to accommodate President Obama's request for a one-year 
extension. Ranking Member King expressed his support for the 
President's request, and Mr. McCaul stated, ``I don't know why 
we're not listening to the President in this instance and the 
administration, instead of forcing this legislation upon the 
Congress.''
    In his testimony before the Committee, Deputy Under 
Secretary Reitinger repeatedly stated his desire to work with 
the Committee to draft ``an appropriate reauthorization bill.'' 
He also testified that two key and directly relevant senior 
positions in the Department--the Assistant Secretary for 
Infrastructure Protection and the Under Secretary for National 
Protection and Programs Directorate--had not yet been filled. 
In addition, the Department's Director of the Infrastructure 
Security Compliance Division, Ms. Sue Armstrong, testified that 
the Department's Science and Technology Directorate is 
conducting a literature review on IST this summer. The 
Majority's desire to push H.R. 2868 and mandate IST for the 
highest risk facilities before it is scientifically reviewed by 
the Department is disconcerting.
    The process of establishing a mature regulatory regime 
under the Chemical Facility Anti-Terrorism Standards (CFATS) 
involves about eight ``steps.'' The last step is inspection of 
facilities. Ms. Armstrong of the Department testified that she 
anticipates inspection of tier 1 facilities ``in the first 
quarter of fiscal year '10.'' The Administration, Republican 
Members, and Department officials feel as though pushing this 
bill forward at this time is premature. An extension of one 
year or more would provide ample time to perfect the bill 
instead of forcing it on the Congress and the Administration 
before the Department has fully implemented CFATS. The House 
Committee on Appropriations supported the President's request 
and included a one-year extension of the Department's CFATS 
regulatory authority in section 548 of H.R. 2892, the 
Department of Homeland Security Appropriations Act, 2010. On 
June 24, 2009, the House of Representatives passed H.R. 2892 by 
a vote of 389-37.

                               CONCLUSION

    In conclusion, while the Committee's Republican Members 
appreciate the Majority's inclusion of Republican 
representation during the drafting of the base bill, these 
significant policy differences made Republican Committee Member 
support of the legislation in its current form impossible. 
While the base bill includes the necessary and appropriate 
reauthorization of the Department's regulatory authority over 
chemical facilities, it unfortunately includes extraneous 
policy provisions that will cost American jobs at farms and 
factories and will impose unnecessary burdens on the Secretary 
of Homeland Security.

                                   Peter T. King,
                                   Charles W. Dent,
                                   Mark E. Souder,
                                   Mike Rogers,
                                   Paul C. Broun,
                                   Pete Olson,
                                   Steve Austria,
                                   Lamar S. Smith,
                                   Michael T. McCaul,
                                   Candice S. Miller,
                                   Anh ``Joseph'' Cao,
                                   Daniel E. Lungren,
                                   Gus M. Bilirakis.

                            ADDITIONAL VIEWS

    H.R. 2868 is a terribly flawed piece of legislation and I 
oppose it. It places burdensome product replacement 
requirements on the agriculture and chemical industries and, 
for the first time, subjects them and the Department of 
Homeland Security to so-called ``citizen lawsuits,'' all under 
the false pretense of ``safety'' and the empty promise of 
``security.''
    During the past weeks and months, I have met with and heard 
from the chemical industry in my district and my State. Without 
exception, they oppose H.R. 2868. It will harm the local 
economy and cost good hard working Texas jobs--all during a 
nationwide economic recession. No Texan can legitimately claim 
that this bill is good for the State they have been elected to 
represent.
    The most problematic provision of this bill concerns so-
called ``inherently safer technologies,'' or ``IST.'' This 
bill, as currently written, will require chemical companies to 
make an IST assessment AND implementation. Unfortunately, the 
Majority has neither identified what would be involved in any 
assessment nor clarified what would be the impacts of 
implementation. Never before has such a mandate been placed 
upon our chemical and agriculture industry with such limited 
information. It will prove to be onerous and costly and will 
most certainly cost jobs. From large corporations to small 
businesses, no one will be safe.
    To be clear, I support IST. I support the ongoing efforts 
of the employers of our country as they develop and implement 
newer and more secure technology to benefit them and their 
employees. However, as my colleague from Pennsylvania, Mr. 
Dent, so aptly noted during mark-up: ``IST is not a technology, 
it is a concept, it is a framework.'' Indeed, under the current 
legislation, the government will be mandating conceptual 
requirements that are not necessarily ``inherently safer'' and 
will rarely involve ``technology.'' I cannot support and will 
not support the government dictating the terms and conditions 
of when, where, and how this framework must be used. By the 
Department's own admission, they have neither the personnel nor 
expertise to make these decisions.
    Unfortunately, the Majority rejected two particular common 
sense amendments in regards to IST. These amendments would have 
made the IST provisions much less extreme, thereby making the 
overall legislation much more acceptable to the Minority.
    The first amendment was offered by Mr. Broun of Georgia. 
His amendment would have replaced the IST provisions of H.R. 
2868 with the common sense ``New Jersey model.'' The State of 
New Jersey mandates that only the highest risk chemical 
facilities in their state conduct an IST assessment. The 
implementation of that assessment, however, is voluntary. Once 
they have completed their assessment, the chemical facilities 
can then use market-based principles to determine how much of 
the assessment should be implemented. This decision is made on 
economic, technological, and safety considerations. As a 
result, a majority of chemical facilities in New Jersey have 
implemented their IST assessments voluntarily, without any 
burdensome mandate from the government.
    The second was offered by Mr. Austria of Ohio. His 
amendment would have exempted small businesses from mandatory 
IST assessment and implementation. Small businesses are the 
back bone of our economy and the major engine of job creation 
in our country. The burden of IST mandates will undoubtedly hit 
them the hardest. Rather than adopting this sound amendment, 
the Majority re-wrote it to authorize no more than the 
completion of a study to examine the effect of IST on small 
businesses. Such a move is a missed opportunity to assist the 
already struggling small businesses in the United States. As my 
colleague from Georgia, Mr. Broun, noted, by the time the study 
is conducted, it will most likely report on the thousands of 
jobs that have been lost due to mandatory IST implementation.
    There were several other Republican amendments offered in a 
sincere attempt to improve the bill. For instance, Mr. Dent of 
Pennsylvania introduced an amendment to completely remove the 
IST provisions from H.R. 2868. I supported this amendment and, 
in my view, it would have made this legislation even better. 
However, the above two amendments represent what I believe to 
be the best chance for compromise and a clear opportunity to 
make this a true bi-partisan bill. Sadly, they were rejected.
    Because this legislation does not improve the Chemical 
Facility Anti-Terrorism Standards (CFATS) already employed by 
the Department of Homeland Security, I do not support H.R. 2868 
and continue urge the committee to honor the Administration's 
request to extend the deadline for the CFATS program.

                                   Pete Olson.