[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2145 Reported in Senate (RS)]
Calendar No. 495
109th CONGRESS
2d Session
S. 2145
To enhance security and protect against terrorist attacks at chemical
facilities.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 19, 2005
Ms. Collins (for herself, Mr. Lieberman, Mr. Coleman, Mr. Carper, Mr.
Levin, Mr. Corzine, and Mr. Salazar) introduced the following bill;
which was read twice and referred to the Committee on Homeland Security
and Governmental Affairs
June 26, 2006
Reported by Ms. Collins, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To enhance security and protect against terrorist attacks at chemical
facilities.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Chemical Facility Anti-
Terrorism Act of 2005''.</DELETED>
<DELETED>SEC. 2. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (1) Chemical source.--The term ``chemical source''
means a facility designated as a chemical source by the
Secretary under section 3.</DELETED>
<DELETED> (2) Critical infrastructure.--The term ``critical
infrastructure'' has the meaning given the term in section 2 of
the Homeland Security Act of 2002 (6 U.S.C. 101).</DELETED>
<DELETED> (3) Department.--The term ``Department'' means the
Department of Homeland Security.</DELETED>
<DELETED> (4) Environment.--The term ``environment'' has the
meaning given the term in section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601).</DELETED>
<DELETED> (5) Higher risk tier.--The term ``higher risk
tier'' means a tier designated by the Secretary as a higher
risk tier under section 3(e)(3).</DELETED>
<DELETED> (6) MTSA-regulated facilities.--The term ``MTSA-
regulated facility'' means a facility subject to the security
requirements under chapter 701 of title 46, United States Code
(commonly known as the ``Maritime Transportation Security
Act'').</DELETED>
<DELETED> (7) Owner or operator.--The term ``owner or
operator'' means any person who owns, leases, operates,
controls, or supervises a chemical source.</DELETED>
<DELETED> (8) Release.--The term ``release'' has the meaning
given the term in section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601).</DELETED>
<DELETED> (9) Secretary.--The term ``Secretary'' means the
Secretary of Homeland Security.</DELETED>
<DELETED> (10) Security measure.--</DELETED>
<DELETED> (A) In general.--The term ``security
measure'' means an action to ensure or enhance the
security of a chemical source against a terrorist
incident.</DELETED>
<DELETED> (B) Inclusions.--The term ``security
measure'', with respect to a chemical source, includes
measures such as--</DELETED>
<DELETED> (i) employee training and
background and identification authentication
checks;</DELETED>
<DELETED> (ii) the limitation and prevention
of access to controls of the chemical
source;</DELETED>
<DELETED> (iii) the protection of the
perimeter of the chemical source;</DELETED>
<DELETED> (iv) the installation and
operation of intrusion detection
sensors;</DELETED>
<DELETED> (v) the implementation of measures
to increase computer or computer network
security;</DELETED>
<DELETED> (vi) the implementation of other
security-related measures to ensure or enhance
the security of a chemical source from a
terrorist incident;</DELETED>
<DELETED> (vii) the implementation of
measures and controls to prevent, protect
against, or reduce the consequences of a
terrorist incident, including--</DELETED>
<DELETED> (I) contingency and
evacuation plans;</DELETED>
<DELETED> (II) early warning
systems; and</DELETED>
<DELETED> (III) the relocation,
hardening of the storage or
containment, modification, processing,
substitution, or reduction of
substances of concern; and</DELETED>
<DELETED> (viii) the conduct of any similar
security-related activity, as determined by the
Secretary.</DELETED>
<DELETED> (11) Substance of concern.--The term ``substance
of concern'' means--</DELETED>
<DELETED> (A) a chemical substance present at a
chemical source in quantities equal to or exceeding the
threshold quantities for the chemical substance, as
defined in or established under paragraphs (3) and (5)
of section 112(r) of the Clean Air Act (42 U.S.C.
7412(r));</DELETED>
<DELETED> (B) ammonium nitrate, in a quantity to be
determined by the Secretary by regulation;
and</DELETED>
<DELETED> (C) any other chemical substance
designated as a substance of concern by the Secretary
under section 3(i) in quantities equal to or exceeding
the threshold quantities established under section
3(i), based on the potential extent of death, injury,
or serious adverse effects to human health and safety
or the environment or the potential impact on national
or economic security or critical infrastructure caused
by a terrorist incident involving the chemical
substance.</DELETED>
<DELETED> (12) Terrorism.--The term ``terrorism'' has the
meaning given the term in section 2 of the Homeland Security
Act of 2002 (6 U.S.C. 101).</DELETED>
<DELETED> (13) Terrorist incident.--The term ``terrorist
incident'' means--</DELETED>
<DELETED> (A) a terrorist attack against a chemical
source;</DELETED>
<DELETED> (B) a release from a chemical source into
the environment of a substance of concern that is
caused by an act of terrorism; and</DELETED>
<DELETED> (C) the theft of a substance of concern by
a person for off-site release in furtherance of an act
of terrorism.</DELETED>
<DELETED>SEC. 3. DESIGNATION AND TIERING OF CHEMICAL SOURCES.</DELETED>
<DELETED> (a) Designation.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall--</DELETED>
<DELETED> (1) promulgate regulations establishing criteria
for designating chemical sources by using the risk factors
described in subsection (b) and by evaluating the types of
facilities described in subsection (c) that shall be considered
in designating chemical sources; and</DELETED>
<DELETED> (2) designate chemical sources in existence as of
that date.</DELETED>
<DELETED> (b) Risk Factors To Be Considered.--In establishing
criteria under subsection (a)(1) for designating chemical sources, the
Secretary shall consider--</DELETED>
<DELETED> (1) the perceived threat to a facility, including
a consideration of adversary capabilities and intent,
preparedness, target attractiveness, and deterrence
capabilities;</DELETED>
<DELETED> (2) the potential extent and likelihood of death,
injury, or serious adverse effects to human health and safety
or to the environment caused by a terrorist incident at a
facility;</DELETED>
<DELETED> (3) the threats to or potential impact on national
security or critical infrastructure caused by a terrorist
incident at a facility;</DELETED>
<DELETED> (4) the potential threats or harm to the economy
that would result from a terrorist incident at a facility,
including whether a facility is the sole supplier, or the
producer of a high percentage, of a product that is critical to
the economy, the chemical industry, or national
security;</DELETED>
<DELETED> (5) the proximity of a facility to population
centers;</DELETED>
<DELETED> (6) the nature and quantity of substances of
concern at a facility; and</DELETED>
<DELETED> (7) such other security-related factors as the
Secretary determines to be appropriate and necessary to protect
the public health and safety, critical infrastructure, and
national and economic security.</DELETED>
<DELETED> (c) Criteria for Facilities.--In establishing criteria
under subsection (a)(1) for designating chemical sources, the Secretary
shall--</DELETED>
<DELETED> (1) consider any facility that is a stationary
source (as defined in section 112(r)(2) of the Clean Air Act
(42 U.S.C. 7412(r)(2)) for which the owner or operator is
required to complete a risk management plan in accordance with
section 112(r)(7)(B)(ii) of the Clean Air Act (42 U.S.C.
7412(r)(7)(B)(ii));</DELETED>
<DELETED> (2) consider any other facility that produces,
uses, or stores a substance of concern; and</DELETED>
<DELETED> (3) determine whether any additional facility
(including, as of the date of the determination, any facility
that is operational and any facility that will become
operational in the future) shall be designated chemical sources
under this Act.</DELETED>
<DELETED> (d) Exclusions.--In designating facilities as chemical
sources, the Secretary shall not include any facility owned or operated
by the Department of Defense or the Department of Energy.</DELETED>
<DELETED> (e) Tiered Security System.--</DELETED>
<DELETED> (1) In general.--Not later than 1 year after the
date of enactment of this Act, the Secretary shall promulgate
rules establishing a risk-based tier system of chemical sources
that--</DELETED>
<DELETED> (A) shall be based on the criteria
established by the Secretary under subsection
(a)(1);</DELETED>
<DELETED> (B) consists of several tiers of chemical
sources;</DELETED>
<DELETED> (C) to the maximum extent practicable,
enables a chemical source to develop appropriate site-
specific measures to meet the security performance
standards established under subsection (f) for the tier
applicable to the chemical source; and</DELETED>
<DELETED> (D) provides guidance to the owner or
operator of a chemical source regarding the steps that
would enable the chemical source to move to a lower
risk tier, if the owner or operator seeks to move to a
lower risk tier.</DELETED>
<DELETED> (2) Determination of tier.--Not later than 1 year
after the date of enactment of this Act, the Secretary shall
determine the tier applicable to each chemical source
designated under subsection (a)(2).</DELETED>
<DELETED> (3) Higher risk tiers.--The Secretary shall
designate 1 or more tiers established under paragraph (1) as
higher risk tiers.</DELETED>
<DELETED> (f) Security Performance Standards.--</DELETED>
<DELETED> (1) In general.--The Secretary shall establish
security performance standards appropriate to the risk-based
tiers established under subsection (e).</DELETED>
<DELETED> (2) Contents.--The security performance standards
established under paragraph (1) shall--</DELETED>
<DELETED> (A) set increasingly strict security
requirements as the level of risk for the tier
increases;</DELETED>
<DELETED> (B) enable a chemical source to select
security measures that, in combination, satisfy the
security performance standards established by the
Secretary; and</DELETED>
<DELETED> (C) be based on the criteria in section
4(a)(2).</DELETED>
<DELETED> (3) Guidance.--</DELETED>
<DELETED> (A) In general.--The Secretary shall
provide guidance to a chemical source regarding the
types of security measures that, if applied, could
satisfy the security performance standards.</DELETED>
<DELETED> (B) Alternate measures.--The owner or
operator of a chemical source shall have flexibility to
employ different security measures than those contained
in the guidance described in subparagraph (A) if such
measures satisfy the security performance standards
established for the tier applicable to the chemical
source.</DELETED>
<DELETED> (g) Notice to Facilities.--Not later than 180 days after
the date of enactment of this Act, the Secretary shall notify
facilities that may be designated as chemical sources regarding the
review of facilities and designation of chemical sources to be
conducted under this Act, including the timeline for such review and
designation.</DELETED>
<DELETED> (h) Subsequent Determinations.--</DELETED>
<DELETED> (1) Periodic review of determinations.--Not later
than 3 years after the designation of chemical sources under
subsection (a)(2), and every 3 years thereafter, the Secretary
shall, after considering the criteria established under
subsection (a)(1) and the exclusions under subsection (d),
determine whether to designate any additional facility as a
chemical source or remove the designation of any particular
facility as a chemical source.</DELETED>
<DELETED> (2) Other review.--In addition to the periodic
review required under paragraph (1), the Secretary may, after
considering the criteria established under subsection (a)(1)
and the exclusions under subsection (d), designate a facility
as chemical source or remove the designation of any facility as
a chemical source.</DELETED>
<DELETED> (3) Duty to report.--</DELETED>
<DELETED> (A) Facilities becoming operational.--
</DELETED>
<DELETED> (i) In general.--Each facility
described in clause (ii) shall file a petition
with the Secretary for a determination on
whether that facility should be designated as a
chemical source not later than 180 days after
the later of--</DELETED>
<DELETED> (I) the date of the
promulgation of final rules under
subsection (a)(1); or</DELETED>
<DELETED> (II) the date that
facility becomes operational.</DELETED>
<DELETED> (ii) Facilities covered.--A
facility described in this clause is a
facility--</DELETED>
<DELETED> (I) that becomes
operational on or after the date of the
designation of chemical sources under
subsection (a)(2); and</DELETED>
<DELETED> (II) at which a threshold
quantity of a substance of concern is
present.</DELETED>
<DELETED> (B) Existing facilities.--</DELETED>
<DELETED> (i) In general.--Each facility
described in clause (ii) shall submit a
petition to the Secretary for a determination
on whether that facility should be designated
as a chemical source not later than 180 days
after the later of--</DELETED>
<DELETED> (I) the date of the
promulgation of final regulations under
subsection (a)(1); or</DELETED>
<DELETED> (II) the date on which the
threshold quantity of a substance of
concern is first present at that
facility.</DELETED>
<DELETED> (ii) Facilities covered.--A
facility described in this clause is a
facility--</DELETED>
<DELETED> (I) for which the owner or
operator is not required to complete a
risk management plan under section
112(r)(7)(B)(ii) of the Clean Air Act
(42 U.S.C.
7412(r)(7)(B)(ii));</DELETED>
<DELETED> (II) that is operational
before the date of the promulgation of
the final rules establishing criteria
for designating chemical sources under
subsection (a)(1); and</DELETED>
<DELETED> (III) at which a threshold
quantity of a substance of concern is
present.</DELETED>
<DELETED> (C) Consultation.--The Secretary, in
consultation with the Administrator of the
Environmental Protection Agency, shall establish a
mechanism for the Secretary to receive notice in a
timely fashion of a facility required by the
Administrator to complete a risk management plan in
accordance with section 112(r)(7)(B)(ii) of the Clean
Air Act (42 U.S.C. 7412(r)(7)(B)(ii)).</DELETED>
<DELETED> (D) Regulations.--The Secretary may
promulgate regulations to carry out this
paragraph.</DELETED>
<DELETED> (i) Designation, Exemption, and Adjustment of Threshold
Quantities of Substances of Concern.--</DELETED>
<DELETED> (1) In general.--The Secretary may, by
regulation--</DELETED>
<DELETED> (A) designate a chemical substance, in a
particular threshold quantity, as a substance of
concern under this Act;</DELETED>
<DELETED> (B) exempt a chemical substance from
designation as a substance of concern under this Act;
and</DELETED>
<DELETED> (C) establish or revise the threshold
quantity for a chemical substance to be designated a
substance of concern.</DELETED>
<DELETED> (2) Considerations.--In designating or exempting a
chemical substance or establishing or revising the threshold
quantity of a chemical substance under paragraph (1), the
Secretary shall consider the potential extent of death, injury,
or serious adverse effects to human health and safety or the
environment and the potential impact on national security, the
economy, or critical infrastructure that would result from a
terrorist incident involving the chemical substance.</DELETED>
<DELETED> (3) Regulations.--The Secretary may make a
designation, exemption, or revision under paragraph (1) in the
regulations promulgated under subsection (a)(1).</DELETED>
<DELETED>SEC. 4. VULNERABILITY ASSESSMENTS, SITE SECURITY PLANS, AND
EMERGENCY RESPONSE PLANS.</DELETED>
<DELETED> (a) Requirement.--</DELETED>
<DELETED> (1) In general.--Not later than 1 year after the
date of enactment of this Act, the Secretary shall promulgate
regulations that require the owner or operator of each chemical
source--</DELETED>
<DELETED> (A) to conduct a vulnerability assessment,
evaluating the vulnerability of the chemical source to
a terrorist incident;</DELETED>
<DELETED> (B) to prepare and implement a site
security plan that addresses the risks identified in
the vulnerability assessment; and</DELETED>
<DELETED> (C) to prepare and implement an emergency
response plan or prepare and implement an addendum to
an existing emergency response plan to include response
planning for a terrorist incident.</DELETED>
<DELETED> (2) Regulatory criteria.--The regulations
promulgated under paragraph (1)--</DELETED>
<DELETED> (A) shall be risk-based, performance
based, and flexible; and</DELETED>
<DELETED> (B) shall include consideration of--
</DELETED>
<DELETED> (i) the criteria established by
the Secretary under section 3(a)(1);</DELETED>
<DELETED> (ii) cost and technical
feasibility; and</DELETED>
<DELETED> (iii) scale of
operations.</DELETED>
<DELETED> (3) Co-located chemical sources.--The regulations
promulgated under paragraph (1) shall permit the development
and implementation of coordinated vulnerability assessments,
site security plans, and emergency response plans in any case
in which more than 1 chemical source is operating at a single
location or at contiguous locations, including cases in which a
chemical source is under the control of more than 1 owner or
operator.</DELETED>
<DELETED> (4) Sharing of threat information.--To the maximum
extent practicable under applicable authority and in the
interests of national security, the Secretary shall provide
State and local government officials and an owner or operator
of a chemical source with threat information that is relevant
to the chemical source in particular or to the chemical sector
in general.</DELETED>
<DELETED> (5) Contents of vulnerability assessment.--A
vulnerability assessment shall--</DELETED>
<DELETED> (A) be based on a rigorous methodology
developed or endorsed by the Secretary;</DELETED>
<DELETED> (B) incorporate any threat information
provided under paragraph (4);</DELETED>
<DELETED> (C) address the appropriate security
performance standards established by Secretary under
section 3(f); and</DELETED>
<DELETED> (D) include an analysis of--</DELETED>
<DELETED> (i) physical security;</DELETED>
<DELETED> (ii) communication
systems;</DELETED>
<DELETED> (iii) electronic, computer, or
other automated systems which are utilized by
the chemical source;</DELETED>
<DELETED> (iv) the sufficiency of security
measures relative to the threats and
consequences of a terrorist incident, including
vulnerabilities at the chemical source arising
from the nature and quantities of substances of
concern and the use, storage, or handling of
substances of concern; and</DELETED>
<DELETED> (v) other areas, as determined by
the Secretary.</DELETED>
<DELETED> (6) Contents of site security plan.--A site
security plan shall--</DELETED>
<DELETED> (A) indicate the tier applicable to the
chemical source, as determined by the Secretary under
section 3(e)(2);</DELETED>
<DELETED> (B) address the risks identified in the
vulnerability assessment;</DELETED>
<DELETED> (C) address the appropriate security
performance standards established by Secretary under
section 3(f);</DELETED>
<DELETED> (D) include security measures appropriate
to the tier level of the chemical source that address
the risks identified in the vulnerability assessment
and are sufficient to deter, to the maximum extent
practicable, a terrorist incident or a substantial
threat of such an incident;</DELETED>
<DELETED> (E) include security measures to mitigate
the consequences of a terrorist incident;</DELETED>
<DELETED> (F) describe, at a minimum, particular
plans, processes, or procedures that could be used by
or at the chemical source in the event of a terrorist
incident;</DELETED>
<DELETED> (G) identify the roles and
responsibilities of employees at the chemical
source;</DELETED>
<DELETED> (H) identify steps taken by the chemical
source to coordinate security measures and plans for
response to a terrorist incident with Federal, State,
and local government officials, including law
enforcement and first responders and specify the
security officer who will be the point of contact for
the National Incident Management System and Federal,
State, and local law enforcement and first responders;
and</DELETED>
<DELETED> (I) describe the training, drills
(including periodic unannounced drills), exercises, and
security actions of persons at the chemical source, to
be carried out under the plan to deter, to the maximum
extent practicable, a terrorist incident or a
substantial threat of such an incident.</DELETED>
<DELETED> (7) Contents of emergency response plan.--
</DELETED>
<DELETED> (A) In general.--An emergency response
plan shall--</DELETED>
<DELETED> (i) specifically address the
consequences of a terrorist incident identified
in the vulnerability assessment prepared under
paragraph (4);</DELETED>
<DELETED> (ii) be consistent with the site
security plan prepared under paragraph (6);
and</DELETED>
<DELETED> (iii) identify the roles and
responsibilities of employees at the chemical
source.</DELETED>
<DELETED> (B) Relationship to the national
contingency plan.--</DELETED>
<DELETED> (i) In general.--Except as
provided in clause (ii), an emergency response
plan shall be a Federally approved or certified
emergency response plan in effect on the date
of enactment of this Act that is--</DELETED>
<DELETED> (I) consistent with
guidance provided by the National
Response Team established under the
National Contingency Plan created under
section 105 of the Comprehensive
Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C.
9605); and</DELETED>
<DELETED> (II) modified to satisfy
the requirements of subparagraph
(A).</DELETED>
<DELETED> (ii) No existing plan.--The owner
or operator of a chemical source that does not
have a Federally approved or certified
emergency response plan in effect on the date
of enactment of this Act shall follow the
guidance provided by the National Response Team
established under the National Contingency Plan
created under section 105 of the Comprehensive
Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9605) in
developing an emergency response plan to meet
the specific considerations of that chemical
source.</DELETED>
<DELETED> (C) Protection of security information.--
If, in order meet the requirements of this paragraph,
the owner or operator of a chemical source is required
to include in an emergency response plan information,
the release of which would be detrimental to the
security of the source, that information shall be
separated in a security addendum to the emergency
response plan.</DELETED>
<DELETED> (8) Guidance to chemical sources.--Not later than
1 year after the date of enactment of this Act, the Secretary
shall publish guidance to assist owners and operators of
chemical sources in complying with this Act, including advice
on aspects of compliance with this Act that may be unique to
small business concerns.</DELETED>
<DELETED> (b) Certification and Submission.--</DELETED>
<DELETED> (1) In general.--Not later than 6 months after the
date of the promulgation of regulations under subsection
(a)(1), each owner or operator of a chemical source shall
certify in writing to the Secretary that the owner or operator
has completed a vulnerability assessment and has developed and
implemented, or is implementing, a site security plan and an
emergency response plan in accordance with this Act.</DELETED>
<DELETED> (2) Submission.--Not later than 6 months after the
date of the promulgation of regulations under subsection
(a)(1), an owner or operator of a chemical source shall submit
to the Secretary copies of the vulnerability assessment, site
security plan, and emergency response plan of the chemical
source for review.</DELETED>
<DELETED> (3) Failure to comply.--If an owner or operator of
a chemical source fails to certify or submit a vulnerability
assessment, site security plan, or emergency response plan in
accordance with paragraph (2), the Secretary may issue an order
requiring the certification and submission of a vulnerability
assessment, site security plan, or emergency response plan in
accordance with this section.</DELETED>
<DELETED> (c) Review by the Secretary.--</DELETED>
<DELETED> (1) In general.--The Secretary shall review the
vulnerability assessment, site security plan, and emergency
response plan submitted by the owner or operator of a chemical
source under subsection (b)(2) to determine whether the
assessment and plans and the implementation of such plans
comply with this section.</DELETED>
<DELETED> (2) Disapproval.--The Secretary shall disapprove a
vulnerability assessment, site security plan, or emergency
response plan submitted under subsection (b)(2) if the
Secretary determines that the vulnerability assessment, site
security plan, emergency response plan, or the implementation
of such plans does not comply with this section.</DELETED>
<DELETED> (3) Compliance.--</DELETED>
<DELETED> (A) In general.--If the Secretary
disapproves a vulnerability assessment, site security
plan, or emergency response plan of a chemical source
under paragraph (2), the Secretary--</DELETED>
<DELETED> (i) shall provide the owner or
operator of the chemical source a written
notification of the determination that includes
a clear explanation of deficiencies in the
vulnerability assessment, site security plan,
emergency response plan, or implementation of
the site security plan;</DELETED>
<DELETED> (ii) shall consult with the owner
or operator of the chemical source to identify
appropriate steps to achieve
compliance;</DELETED>
<DELETED> (iii) if, following consultation
under clause (ii), the owner or operator of the
chemical source does not achieve compliance by
such date as the Secretary determines to be
appropriate under the circumstances, shall
issue an order requiring the owner or operator
to correct specified deficiencies;
and</DELETED>
<DELETED> (iv) if the owner or operator
continues to be in noncompliance, may issue an
order for the chemical source to cease
operation.</DELETED>
<DELETED> (B) Compliance for higher risk tiers.--
</DELETED>
<DELETED> (i) In general.--Not later than 1
year after the later of the date of the
promulgation of regulations under subsection
(a)(1) and the date of the promulgation of
regulations under section 3(e), the Secretary
shall--</DELETED>
<DELETED> (I) determine whether to
approve, disapprove, or modify the
vulnerability assessment, site security
plan, and emergency response plan
submitted under subsection (b)(2) by a
chemical source in a higher risk tier;
and</DELETED>
<DELETED> (II) determine whether a
chemical source in a higher risk tier
is operating in compliance with the
site security plan and emergency
response plan submitted by the chemical
source under subsection
(b)(2).</DELETED>
<DELETED> (ii) Enforcement.--The Secretary
may issue an order to a chemical source in a
higher risk tier to cease operation if the
Secretary--</DELETED>
<DELETED> (I) disapproves the
vulnerability assessment, site security
plan, or emergency response plan
submitted under subsection (b)(2) by a
chemical source in a higher risk tier;
or</DELETED>
<DELETED> (II) determines that a
chemical source in a higher risk tier
is not operating in compliance with the
site security plan or emergency
response plan submitted by the chemical
source under subsection
(b)(2).</DELETED>
<DELETED> (C) Compliance for other tiers.--Not later
than 5 years after the date of the submission of the
vulnerability assessment, site security plan, and
emergency response plan by a chemical source that is
not in a higher risk tier under subsection (b)(2), the
Secretary shall complete the review of the assessment
and plans and make a determination regarding compliance
with this section.</DELETED>
<DELETED> (D) Subsequent review.--The Secretary may
conduct subsequent reviews and determinations of
compliance under this Act for a chemical source on a
schedule as determined to be appropriate by the
Secretary, with priority given to chemical sources in a
higher risk tier.</DELETED>
<DELETED> (d) Submission and Certification of Changes.--</DELETED>
<DELETED> (1) In general.--Not later than 60 days after the
date on which a change is made to a chemical source that
affects the security of the chemical source, the owner or
operator of the chemical source shall--</DELETED>
<DELETED> (A) notify the Secretary in
writing;</DELETED>
<DELETED> (B) provide a description of the change at
the chemical source; and</DELETED>
<DELETED> (C) either--</DELETED>
<DELETED> (i) request a waiver from
resubmitting the vulnerability assessment,
security plan, and emergency response plan;
or</DELETED>
<DELETED> (ii) review and resubmit the
vulnerability assessment, site security plan,
and emergency response plan, with the
appropriate modifications.</DELETED>
<DELETED> (2) Notice and request.--If the Secretary
determines that additional modification of a vulnerability
assessment, site security plan, or emergency response plan is
required, the Secretary shall--</DELETED>
<DELETED> (A) provide a written notice to the
chemical source owner or operator, requiring
modifications addressing any matters specified in the
notice; and</DELETED>
<DELETED> (B) provide the owner or operator of the
chemical source not less than 60 days after the date of
the notice under subparagraph (A) to submit proposed
modifications.</DELETED>
<DELETED> (3) Temporary security measures.--During the
period before the Secretary approves a modified vulnerability
assessment, site security plan, or emergency response plan or
issues a waiver, an owner or operator of a chemical source
shall ensure temporary security measures are
implemented.</DELETED>
<DELETED> (e) MTSA-REGULATED Facilities.--</DELETED>
<DELETED> (1) In general.--Except as provided in paragraph
(4), a chemical source that is also a MTSA-regulated facility
shall comply with this Act.</DELETED>
<DELETED> (2) Compliance.--</DELETED>
<DELETED> (A) In general.--A chemical source that is
also a MTSA-regulated facility shall review its
facility security assessment, facility security plan,
and emergency response plan and make any modifications
necessary to comply with the security performance
standards established for the tier applicable to the
chemical source under section 3(f) and the requirements
of subsection (a)(1).</DELETED>
<DELETED> (B) Submission.--Not later than 180 days
after the date on which the Secretary promulgates
regulations under subsection (a)(1), the owner or
operator of a chemical source that is also a MTSA-
regulated facility shall--</DELETED>
<DELETED> (i) submit the facility security
assessment, facility security plan, and
emergency response plan, with any appropriate
modifications under subparagraph (A), for the
chemical source to the Federal Maritime
Security Coordinator for the area in which the
chemical source is located and the Secretary
for approval; and</DELETED>
<DELETED> (ii) certify in writing to the
Federal Maritime Security Coordinator for the
area in which the facility is located and the
Secretary that--</DELETED>
<DELETED> (I) the facility security
assessment and facility security plan
for the facility are in compliance with
the security performance standards for
the tier applicable to the chemical
source under section 3(f) and the
requirements under subsection (a)(1);
and</DELETED>
<DELETED> (II) the owner or operator
has submitted an approved or certified
emergency response plan required under
chapter 701 of title 46, United States
Code, to the Federal Maritime Security
Coordinator for the area in which the
facility is located.</DELETED>
<DELETED> (3) Review by the secretary.--In accordance with
the procedures under subsection (c), the Secretary, in
consultation with the Federal Maritime Security Coordinator for
the area in which a chemical source that is also a MTSA-
regulated facility is located, shall determine whether a
facility security assessment and facility security plan
submitted under paragraph (2)(B) meets the security performance
standards established by the Secretary under section 3(f) and
the requirements under subsection (a)(1).</DELETED>
<DELETED> (4) Exemption.--A chemical source that is a MTSA-
regulated facility is exempt from section 6(d) of this
Act.</DELETED>
<DELETED> (5) Integration and coordination.--</DELETED>
<DELETED> (A) In general.--The Secretary shall
implement this Act and chapter 701 of title 46, United
States Code, in as consistent and integrated manner as
possible.</DELETED>
<DELETED> (B) Coast guard.--The Secretary shall
ensure coordination between the Under Secretary for
Preparedness and the Coast Guard Commandant in carrying
out this Act.</DELETED>
<DELETED> (f) Alternative Security Programs.--</DELETED>
<DELETED> (1) In general.--The Secretary may consider a
petition submitted by any person that describes--</DELETED>
<DELETED> (A) alternate procedures, protocols, and
standards established by an industry entity, Federal,
State, or local government authorities, or other
applicable laws; and</DELETED>
<DELETED> (B) the scope of chemical sources to which
such program would apply.</DELETED>
<DELETED> (2) Review.--The Secretary may review the
requirements of any alternative security program submitted
under paragraph (1) to determine whether a vulnerability
assessment, security plan, or emergency response plan prepared
under that program meets each required element under subsection
(a)(1) for a vulnerability assessment, security plan, and
emergency response plan submitted under subsection
(b)(2).</DELETED>
<DELETED> (3) Determination.--</DELETED>
<DELETED> (A) In general.--If the Secretary
determines that a vulnerability assessment, security
plan, or emergency response plan prepared under that
alternative security program meets each required
element under subsection (a)(1) for a vulnerability
assessment, security plan, and emergency response plan
submitted under subsection (b)(2), the Secretary shall
notify the petitioner that any chemical source covered
by that program may submit an assessment or plan
prepared under that program without further
revision.</DELETED>
<DELETED> (B) Other determinations.--If the
Secretary determines that a vulnerability assessment,
security plan, or emergency response plan prepared
under that alternative security program does not meet
each required element under subsection (a)(1) for a
vulnerability assessment, security plan, and emergency
response plan submitted under subsection (b)(2)--
</DELETED>
<DELETED> (i) the Secretary may specify what
modifications would be necessary to meet the
required elements for a vulnerability
assessment, security plan, or emergency
response plan submitted under subsection
(b)(2); and</DELETED>
<DELETED> (ii) a chemical source covered by
that program may submit the assessment or plans
with the specified modifications.</DELETED>
<DELETED> (C) Form.--Any action taken by the
Secretary under this paragraph shall be made by rule,
regulation, or order.</DELETED>
<DELETED> (4) Review.--Nothing in this subsection shall
relieve the Secretary of the obligation--</DELETED>
<DELETED> (A) to review the vulnerability
assessment, security plan, and emergency response plan
submitted by each chemical source under this section
according to the performance standards established by
section 3(f) and the requirements under subsection
(a)(1); or</DELETED>
<DELETED> (B) to approve or disapprove each
submission on an individual basis.</DELETED>
<DELETED> (g) Periodic Review.--</DELETED>
<DELETED> (1) In general.--On the timeline established by
the Secretary under paragraph (2), the owner or operator of a
chemical source shall--</DELETED>
<DELETED> (A) review the adequacy of the
vulnerability assessment, site security plan, and
emergency response plan for the chemical
source;</DELETED>
<DELETED> (B) certify to the Secretary that the
chemical source has completed the review and
implemented any necessary modifications to the
vulnerability assessment, site security plan, or
emergency response plan; and</DELETED>
<DELETED> (C) provide to the Secretary a description
of any changes to the vulnerability assessment, site
security plan, or emergency response plan.</DELETED>
<DELETED> (2) Timing.--The Secretary shall establish a
timeline for review appropriate to the tier level of the
chemical source that requires a review--</DELETED>
<DELETED> (A) for a higher risk tier, not later than
1 year after the date of approval of a vulnerability
assessment, site security plan, and emergency response
plan under subsection (b)(1) and not less often than
every 3 years thereafter; and</DELETED>
<DELETED> (B) for all other tiers, not later than 5
years after the date of approval of a vulnerability
assessment, site security plan, and emergency response
plan under subsection (b)(1) and not less often than
every 5 years thereafter.</DELETED>
<DELETED>SEC. 5. RECORDKEEPING; SITE INSPECTIONS; PRODUCTION OF
INFORMATION.</DELETED>
<DELETED> (a) Recordkeeping.--The owner or operator of a chemical
source shall retain a copy of the vulnerability assessment, site
security plan, and emergency response plan for the chemical source for
not less than 5 years after the date on which such assessment or plan
was approved by the Secretary under section 4(c).</DELETED>
<DELETED> (b) Right of Entry.--</DELETED>
<DELETED> (1) In general.--In carrying out this Act, the
Secretary or the designee of the Secretary, on presentation of
credentials, shall have a right of entry to, on, or through--
</DELETED>
<DELETED> (A) the premises of a chemical source;
and</DELETED>
<DELETED> (B) any premises on which any record
required to be maintained under subsection (a) is
located.</DELETED>
<DELETED> (2) Audits and inspections.--</DELETED>
<DELETED> (A) In general.--The Secretary shall, at
such times and places as the Secretary determines to be
appropriate, conduct, or require the conduct of,
facility security audits and inspections, the
requirements of which may be established by rule,
regulation, or order.</DELETED>
<DELETED> (B) Scope.--Audits and inspections under
subparagraph (A) shall ensure and evaluate compliance
with this Act.</DELETED>
<DELETED> (c) Requests for Records.--In carrying out this Act, the
Secretary may require the submission of, or, on presentation of
credentials, may at reasonable times seek access to and copy--
</DELETED>
<DELETED> (1) any records, reports, or other information
described in subsection (a); and</DELETED>
<DELETED> (2) any other documentation necessary for the--
</DELETED>
<DELETED> (A) review or analysis of a vulnerability
assessment or security plan; or</DELETED>
<DELETED> (B) implementation of a security
plan.</DELETED>
<DELETED> (d) Compliance.--If the Secretary determines that an owner
or operator of a chemical source is not maintaining, producing, or
permitting access to records or to the premises of the chemical source
as required by this section, the Secretary may issue an order requiring
compliance with the relevant provisions of this section.</DELETED>
<DELETED>SEC. 6. INFRASTRUCTURE PROTECTION AND
IMPLEMENTATION.</DELETED>
<DELETED> (a) Coordination.--</DELETED>
<DELETED> (1) In general.--The Secretary shall ensure
effective chemical security planning and response by providing
the necessary infrastructure, leadership, technical assistance,
guidance, and accountability for security planning and response
in areas surrounding chemical sources.</DELETED>
<DELETED> (2) With other law.--The Secretary shall model the
regulations promulgated, organizations established, and actions
taken under this section on the requirements of sections 70102,
70103, 70104, and 70112 of title 46, United States
Code.</DELETED>
<DELETED> (3) With committees.--The Secretary, and those in
positions assigned under this section, shall coordinate with
other Federal area security and response committees in order to
provide a unified and effective Federal effort for security and
response organizational infrastructure for the Nation. Nothing
in this section shall supersede any other Federal area security
or response committee and the entities established under this
section shall be organized to complement such other
committees.</DELETED>
<DELETED> (b) Compliance Office.--</DELETED>
<DELETED> (1) Establishment.--Not later than 3 months after
the date of enactment of this Act, the Secretary shall
establish an office under the Assistant Secretary for
Infrastructure Protection that shall be responsible for
implementing and enforcing this Act.</DELETED>
<DELETED> (2) Activities.--The Secretary, acting through the
Assistant Secretary for Infrastructure Protection, shall--
</DELETED>
<DELETED> (A) provide leadership, guidance,
planning, technical assistance, resources, and conduct
oversight activities to establish an effective chemical
security planning and response infrastructure for the
Nation;</DELETED>
<DELETED> (B) provide leadership, personnel,
training, equipment, other resources as necessary, and
technical assistance to--</DELETED>
<DELETED> (i) Federal, State and local
government agencies;</DELETED>
<DELETED> (ii) Infrastructure Protection
Regional Security Offices; and</DELETED>
<DELETED> (iii) Area Security Committees, as
requested by the Federal Area Security
Coordinator;</DELETED>
<DELETED> (C) coordinate with law enforcement
agencies, first responders, and chemical sources
regarding the response to a potential or actual
terrorist incident at a chemical source;</DELETED>
<DELETED> (D) review and approve each Area Security
Plan submitted under subsection (d); and</DELETED>
<DELETED> (E) coordinate with the Office of State
and Local Government Coordination and Preparedness of
the Department, to ensure some homeland security grants
administered by the Department support the plans
required under this section.</DELETED>
<DELETED> (c) Infrastructure Protection Regional Security Offices.--
</DELETED>
<DELETED> (1) In general.--Not later than 6 months after the
date of enactment of this Act, the Secretary shall establish in
each Federal Emergency Management Agency Region an
Infrastructure Protection Regional Security Office, for
purposes of carrying out this Act and coordinating regional
security, as described in this section.</DELETED>
<DELETED> (2) Membership and duties.--Each Infrastructure
Protection Regional Security Office shall--</DELETED>
<DELETED> (A) consist of--</DELETED>
<DELETED> (i) the personnel of the
Infrastructure Protection Office of the
Department within the region; and</DELETED>
<DELETED> (ii) a regional security advisory
staff, to be appointed by the
Secretary;</DELETED>
<DELETED> (B) review and approve each Area Security
Plan for the region to ensure coordination between
regions and States;</DELETED>
<DELETED> (C) oversee implementation of this Act to
ensure consistent implementation within the region, in
conjunction with the strategic mission and policies of,
and guidance from, the Department; and</DELETED>
<DELETED> (D) perform other functions as assigned by
the Secretary necessary to implement the requirements
of this Act or help protect other critical
infrastructure.</DELETED>
<DELETED> (d) Area Security Committees and Plans.--</DELETED>
<DELETED> (1) Designation of areas and federal area security
coordinators.--</DELETED>
<DELETED> (A) Deadline.--Not later than 6 months
after the date of enactment of this Act, the Secretary
shall designate geographic areas for the Area
Committees established under paragraph (2).</DELETED>
<DELETED> (B) Requirements.--In designating areas
under subparagraph (A), the Secretary shall ensure
that--</DELETED>
<DELETED> (i) except as provided in
subparagraph (C), all parts of the United
States are included in an area; and</DELETED>
<DELETED> (ii) no area is larger than a
single State, although an area may incorporate
portions of more than 1 State, based on the
organization and number of chemical sources in
a geographic area.</DELETED>
<DELETED> (C) Exclusion.--Any area designated under
section 70103(a)(2)(G) of title 46, United States Code,
shall not be included in any area designated under this
Act.</DELETED>
<DELETED> (2) Establishment and designation.--</DELETED>
<DELETED> (A) Committees.--There is established for
each area designated by the Secretary under paragraph
(1) an Area Security Committee, comprised of members
appointed by the Secretary, in consultation with State
and local government officials, from qualified and
effected security and response personnel of Federal,
State, and local government agencies, chemical sources,
local emergency planning and response entities, other
critical infrastructure sectors, and other appropriate
organizations.</DELETED>
<DELETED> (B) Coordinator.--For each area designated
by the Secretary under paragraph (1), the Secretary
shall designate a Federal Area Security Coordinator
with knowledge of and experience in the activities
required under this subsection.</DELETED>
<DELETED> (3) Duties.--</DELETED>
<DELETED> (A) Committees.--Each Area Security
Committee, under the direction of the Federal Area
Security Coordinator for the area assigned to such Area
Security Committee, shall--</DELETED>
<DELETED> (i) meet not less frequently than
twice per year;</DELETED>
<DELETED> (ii) prepare the Area Security
Plan described in paragraph (4) for that area
and submit the Area Security Plan to the
Secretary for approval; and</DELETED>
<DELETED> (iii) coordinate with Federal,
State, and local government officials and
chemical sources to enhance the security and
response planning of those officials and to
assure effective preplanning of joint security
and response efforts, including exercises,
drills, evacuations, sheltering, and
rescue.</DELETED>
<DELETED> (B) Coordinator.--Each Federal Area
Security Coordinator shall, for the area assigned to
such official--</DELETED>
<DELETED> (i) conduct audits and inspections
of chemical sources under this Act;</DELETED>
<DELETED> (ii) provide appropriate guidance
and support to chemical sources; and</DELETED>
<DELETED> (iii) perform such other duties as
are required by the Area Security Committee or
the Secretary.</DELETED>
<DELETED> (4) Area security plans.--</DELETED>
<DELETED> (A) In general.--Not later than 2 years
after the date of enactment of this Act, each Area
Security Committee shall prepare and submit to the
Secretary for approval an Area Security Plan for the
area assigned to such Area Security
Committee.</DELETED>
<DELETED> (B) Plan requirements.--The Area Security
Plan shall--</DELETED>
<DELETED> (i) coordinate the resources of
the area assigned to the Area Security
Committee to deter a potential or actual
terrorist incident at a chemical source in that
area, or to respond to a terrorist incident at
a chemical source in that area;</DELETED>
<DELETED> (ii) coordinate with the National
Infrastructure Protection Plan, the National
Response Plan, the site security plan of any
chemical source located in the area assigned to
the Area Security Committee, other appropriate
national security and response plans, and the
Area Security Plans for contiguous
areas;</DELETED>
<DELETED> (iii) reflect security and
response post-incident investigative reports,
as determined by the Secretary;</DELETED>
<DELETED> (iv) describe in detail the
responsibilities of an owner or operator of a
chemical source (based upon the approved site
security plan for the chemical source) and of
Federal, State, and local government agencies
in responding to potential or actual terrorist
incident at a chemical source operating in the
area assigned to the Area Security
Committee;</DELETED>
<DELETED> (v) describe the area covered by
the plan, list the assets and resources
available to respond to a terrorist incident,
and include any other information the Secretary
requires;</DELETED>
<DELETED> (vi) be updated periodically by
the Area Security Committee; and</DELETED>
<DELETED> (vii) provide for coordination
with the appropriate Federal, State and local
government agencies or members of local
entities that plan for emergency releases from
chemical sources regarding how local
populations that may be affected by a release
are provided with information, including
evacuation planning, sheltering in place, and
areas of refuge.</DELETED>
<DELETED> (5) Review.--Not later than 24 months after the
date of enactment of this Act, the Secretary shall--</DELETED>
<DELETED> (A) review each Area Security Plan
developed under paragraph (4);</DELETED>
<DELETED> (B) require amendments to any plan that
does not meet the requirements of this section;
and</DELETED>
<DELETED> (C) approve each plan that meets the
requirements of this section.</DELETED>
<DELETED> (e) Area Exercises and Drills.--</DELETED>
<DELETED> (1) In general.--The Secretary shall periodically
conduct drills and exercises, some without prior notice,
including full functional and communications exercises of
security and response capability in each area for which an Area
Security Plan is required under this section and under the site
security plan and emergency response plans of relevant chemical
sources.</DELETED>
<DELETED> (2) Scope of participation.--The drills and
exercises conducted under paragraph (1) may include
participation by--</DELETED>
<DELETED> (A) Federal, State, and local government
agencies, including law enforcement and first
responders;</DELETED>
<DELETED> (B) the owner and operator of any chemical
source in the area;</DELETED>
<DELETED> (C) members of local entities that plan
for emergency releases;</DELETED>
<DELETED> (D) representatives of other critical
infrastructure; and</DELETED>
<DELETED> (E) other participants as determined
appropriate by the Secretary or the designee of the
Secretary.</DELETED>
<DELETED> (3) Reports.--The Secretary shall publish annual
reports on drills under this subsection, including assessments
of the effectiveness of the plans described in paragraph (1),
lessons learned, and a list of any amendments made to improve
any plan described in paragraph (1). The annual reports shall
not include protected information.</DELETED>
<DELETED>SEC. 7. HEIGHTENED SECURITY MEASURES.</DELETED>
<DELETED> (a) In General.--If the Secretary determines that
additional security measures are necessary to respond to a threat
assessment or to a specific threat against the chemical sector, the
Secretary may issue an order to the owner or operator of a chemical
source setting forth mandatory security measures. Only the Secretary or
the designee of the Secretary may issue an order under this
section.</DELETED>
<DELETED> (b) Period of Order.--</DELETED>
<DELETED> (1) In general.--Any order issued by the Secretary
under subsection (a) shall be effective upon issuance and shall
remain in effect for a period of not more than 90 days, unless
the Secretary files an action in an appropriate United States
district court before the expiration of that 90-day
period.</DELETED>
<DELETED> (2) Effect of filing.--If the Secretary files an
action described in paragraph (1), an order issued by the
Secretary under subsection (a) shall remain in effect for 14
days in addition to the 90-day period under paragraph (1), or
for such shorter or longer period as may be authorized by the
court in which such action is filed.</DELETED>
<DELETED>SEC. 8. PENALTIES.</DELETED>
<DELETED> (a) Administrative Penalties.--</DELETED>
<DELETED> (1) Penalties.--The Secretary may impose an
administrative penalty of not more than $25,000 per day, and
not more than a maximum of $1,000,000 per year, for failure to
comply with an order or directive issued by the Secretary under
this Act.</DELETED>
<DELETED> (2) Notice and hearing.--Before imposing a penalty
under paragraph (1), the Secretary shall provide to the person
against which the penalty is to be assessed--</DELETED>
<DELETED> (A) a written notice of the proposed
penalty; and</DELETED>
<DELETED> (B) not later than 30 days after the date
on which the person receives the notice, the
opportunity to request a hearing on the proposed
penalty.</DELETED>
<DELETED> (3) Procedures.--The Secretary shall promulgate
regulations establishing procedures for administrative hearings
and appropriate review, including necessary
deadlines.</DELETED>
<DELETED> (b) Civil Penalties.--</DELETED>
<DELETED> (1) In general.--The Secretary may bring an action
in a United States district court against any owner or operator
of a chemical source that violates or fails to comply with any
order or directive issued by the Secretary under this Act or a
site security plan approved by the Secretary under this
Act.</DELETED>
<DELETED> (2) Relief.--In any action under paragraph (1), a
court may issue an order for injunctive relief and may award a
civil penalty of not more than $50,000 for each day on which a
violation occurs or a failure to comply continues.</DELETED>
<DELETED> (c) Criminal Penalties.--An owner or operator of a
chemical source who knowingly violates any order issued by the
Secretary under this Act or knowingly fails to comply with a site
security plan approved by the Secretary under this Act shall be fined
not more than $50,000 for each day of such violation, imprisoned not
more than 2 years, or both.</DELETED>
<DELETED>SEC. 9. PROTECTION OF INFORMATION.</DELETED>
<DELETED> (a) Disclosure Exemptions.--</DELETED>
<DELETED> (1) Records of the department.--</DELETED>
<DELETED> (A) In general.--Except as provided in
subsection (b), the Department shall not be required
under section 552 of title 5, United States Code, to
make available to the public a record described in
subparagraph (B).</DELETED>
<DELETED> (B) Records not disclosed.--A record
described in this subparagraph is--</DELETED>
<DELETED> (i) a vulnerability assessment,
site security plan, or a security addendum to
an emergency response plan obtained by the
Department under section 4;</DELETED>
<DELETED> (ii) an area security plan
required under section 6(d)(4);</DELETED>
<DELETED> (iii) materials developed or
produced by a chemical source exclusively in
preparation of documents referred to in clause
(i) and obtained by the Department under
section 4; or</DELETED>
<DELETED> (iv) any record developed
exclusively for the purposes of this Act by the
Department, or produced exclusively for the
purposes of this Act by a chemical source and
obtained by the Department under section 4, to
the extent that the record contains information
that--</DELETED>
<DELETED> (I) describes a specific
chemical source or the specific
vulnerabilities of a chemical
source;</DELETED>
<DELETED> (II) was taken from a
record described in clause (i) or (ii)
or from a copy of such record in
possession of the chemical source;
and</DELETED>
<DELETED> (III) would, if disclosed,
be detrimental to the security of a
chemical source.</DELETED>
<DELETED> (2) Records of other agencies.--</DELETED>
<DELETED> (A) In general.--A Federal agency other
than the Department shall not be required under section
552 of title 5, United States Code, to make available
to the public a record described in subparagraph
(C).</DELETED>
<DELETED> (B) Referral of requests.--If a Federal
agency other than the Department receives a request
under section 552 of title 5, United States Code, for a
record described in clause (i) or clause (ii)(I) of
subparagraph (C), the agency, without consideration by
the agency of whether subparagraph (C)(ii)(II) is
satisfied--</DELETED>
<DELETED> (i) shall not disclose the record;
and</DELETED>
<DELETED> (ii) shall refer the request to
the Department for processing and
response.</DELETED>
<DELETED> (C) Records not disclosed.--A record
described in this subparagraph is any record--
</DELETED>
<DELETED> (i) described in paragraph (1)(B)
that was shared by the Department with the
agency under this section; and</DELETED>
<DELETED> (ii) produced exclusively for the
purposes of this Act by the agency, to the
extent that the record contains information
that--</DELETED>
<DELETED> (I) describes a specific
chemical source or the specific
vulnerabilities of a chemical
source;</DELETED>
<DELETED> (II) was taken from a
record described in clause (i);
and</DELETED>
<DELETED> (III) would, if disclosed,
be detrimental to the security of a
chemical source.</DELETED>
<DELETED> (3) Records of state or local government
agencies.--</DELETED>
<DELETED> (A) In general.--A State or local
government agency shall not be required under any State
or local law providing for public access to information
to make available to the public a record described in
subparagraph (B).</DELETED>
<DELETED> (B) Records not disclosed.--A record
described in this subparagraph is any record--
</DELETED>
<DELETED> (i) described in paragraph (1)(B)
that was shared by the Department with the
State or local government agency under section
6; and</DELETED>
<DELETED> (ii) produced exclusively for the
purposes of this Act by the State or local
government agency, to the extent that the
record contains information that--</DELETED>
<DELETED> (I) describes a specific
chemical source or the specific
vulnerabilities of a chemical source;
and</DELETED>
<DELETED> (II) was taken from a
record described in clause (i) or (ii)
or from a copy of such document in
possession of the chemical
source.</DELETED>
<DELETED> (b) Public Information.--</DELETED>
<DELETED> (1) In general.--</DELETED>
<DELETED> (A) Information disclosed.--Except as
provided in subparagraph (B), the following records
shall be made available to the public under section 552
of title 5, United States Code:</DELETED>
<DELETED> (i) Certifications.--A
certification under section 4(b)(1).</DELETED>
<DELETED> (ii) Order for failure to
comply.--An order under section
4(b)(3).</DELETED>
<DELETED> (iii) Compliance certificates.--A
certificate of compliance under paragraph
(2).</DELETED>
<DELETED> (iv) Other orders.--The identity
of any chemical source and the owner or
operator of the chemical source for which any
other order or any approval or disapproval is
issued under this Act, together with
information identifying the applicable order,
approval, or disapproval.</DELETED>
<DELETED> (B) Exception.--</DELETED>
<DELETED> (i) In general.--If the Secretary
makes a specific finding and determination with
respect to a particular chemical source that
releasing any record described in subparagraph
(A) regarding that chemical source would
increase the risk to the security of any
chemical source, the Secretary may establish a
period, not to exceed 6 months, during which
the record shall not be made available to the
public under section 552 of title 5, United
States Code.</DELETED>
<DELETED> (ii) Extension.--Not more than 60
days before to the expiration of a period
established under clause (i) (or an extension
of such period under this clause), the
Secretary may extend the period for an
additional period not to exceed 6 months if the
Secretary makes a specific finding and
determination with respect to a particular
chemical source that releasing any record
described in subparagraph (A) regarding that
chemical source would increase the risk to the
security of any chemical source.</DELETED>
<DELETED> (iii) Notice to gao.--If the
Secretary determines not to allow a record to
be made available to the public under clause
(i) or extends the period of nondisclosure
under clause (ii), the Secretary shall submit
to the Comptroller General of the United
States, for inclusion and evaluation in the
reports under section 12, a detailed
statement--</DELETED>
<DELETED> (I) identifying the
chemical source;</DELETED>
<DELETED> (II) describing the
record;</DELETED>
<DELETED> (III) explaining the basis
for the Secretary's determination;
and</DELETED>
<DELETED> (IV) describing any
security measures being implemented by
the chemical source.</DELETED>
<DELETED> (2) Certification of compliance.--When the
Secretary determines that a chemical source is in compliance
with the requirements of this Act, the Secretary shall issue
and make available for public inspection a certificate of
approval that contains the following statement:
``</DELETED>____ <DELETED>(chemical source name) </DELETED>____
<DELETED>is in compliance with the Chemical Facility Anti-
Terrorism Act of 2005.''.</DELETED>
<DELETED> (3) Report to congress.--Not less frequently than
once each year, the Secretary shall submit to Congress a public
report on the performance of chemical sources under the Act, in
the aggregate, including a description of common problems,
solutions, and industry best practices.</DELETED>
<DELETED> (c) Development of Protocols.--</DELETED>
<DELETED> (1) In general.--The Secretary, in consultation
with the Director of the Office of Management and Budget and
appropriate Federal law enforcement and intelligence officials
and in a manner consistent with existing protections for
sensitive or classified information, shall, by regulation,
establish confidentiality protocols for maintenance and use of
records described in paragraphs (1)(B), (2)(C), and (3)(B) of
subsection (a).</DELETED>
<DELETED> (2) Requirements for protocols.--The protocols
established under paragraph (1) shall ensure, to the maximum
extent practicable, that--</DELETED>
<DELETED> (A) the records shall be maintained in a
secure location; and</DELETED>
<DELETED> (B) access to records shall be limited--
</DELETED>
<DELETED> (i) as may be necessary to--
</DELETED>
<DELETED> (I) enable enforcement of
this Act; or</DELETED>
<DELETED> (II) address an imminent
and substantial threat to security,
health, safety, or the
environment;</DELETED>
<DELETED> (ii) to State or local law
enforcement officials, first responders, or
other State or local government officials
granted access to records for the purpose of
carrying out this Act; and</DELETED>
<DELETED> (iii) to other persons granted
access for the purpose of carrying out this
Act.</DELETED>
<DELETED> (3) Other procedures in protocols.--The protocols
established under paragraph (1) shall also--</DELETED>
<DELETED> (A) provide for the labeling of any record
described in paragraph (1)(B), (2)(C), or (3)(B) of
subsection (a), to enable the sensitive information in
such record to be traced back to the specific document
from which the information was derived;</DELETED>
<DELETED> (B) accommodate the making of disclosures
under sections 2302(b)(8) and 7211 of title 5, United
States Code, and provide guidance to employees as to
how to make such disclosures without compromising
security;</DELETED>
<DELETED> (C) include procedures applicable to a
request under section 552 of title 5, United States
Code, requiring that any portion of a record that
reasonably may be separated shall be provided to a
person requesting the record after redaction of any
portion that is exempt from disclosure;</DELETED>
<DELETED> (D) establish procedures by which a record
described in paragraph (1)(B), (2)(C), or (3)(B) of
subsection (a) may become subject to the requirements
regarding public disclosure under section 552 of title
5, United States Code, when, because of changed
circumstances or the passage of time, disclosure of the
record would not be detrimental to the security of a
chemical source.</DELETED>
<DELETED> (d) Process for Reporting Problems.--</DELETED>
<DELETED> (1) Establishment of a reporting process.--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 chemical source.</DELETED>
<DELETED> (2) Confidentiality.--The Secretary shall keep
confidential the identity of a person who submits a report
under paragraph (1) and any such report shall be treated as a
record described in subsection (a)(1)(B), to the extent that it
does not consist of publicly available information.</DELETED>
<DELETED> (3) Acknowledgment of receipt.--If a report
submitted under paragraph (1) identifies the person making the
report, the Secretary shall respond promptly to such person and
acknowledge receipt of the report.</DELETED>
<DELETED> (4) Steps to address problems.--The Secretary
shall review and consider the information provided in any
report submitted under paragraph (1) and shall take whatever
steps the Secretary determines appropriate to address any
problems, deficiencies, or vulnerabilities
identified.</DELETED>
<DELETED> (5) Retaliation prohibited.--No employer may
discharge any employee or otherwise discriminate against any
employee with respect to the compensation to, or terms,
conditions, or privileges of the employment of, such employee
because the employee (or a person acting pursuant to a request
of the employee) made a report under paragraph (1).</DELETED>
<DELETED> (6) GAO reporting.--The Comptroller General of the
United States shall, in the reports under section 12--
</DELETED>
<DELETED> (A) describe the number and type of
problems, deficiencies, and vulnerabilities reported on
under this subsection; and</DELETED>
<DELETED> (B) evaluate the Secretary's efforts in
addressing such problems, deficiencies, and
vulnerabilities.</DELETED>
<DELETED> (e) Protected Disclosures.--Nothing in this Act shall be
construed to limit--</DELETED>
<DELETED> (1) the right of an individual to make any
disclosure--</DELETED>
<DELETED> (A) protected or authorized under section
2302(b)(8) or 7211 of title 5, United States Code;
or</DELETED>
<DELETED> (B) to the Special Counsel, the inspector
general of an agency, or any other employee designated
by the head of an agency to receive similar
disclosures; or</DELETED>
<DELETED> (2) the applicability or enforcement of sections
818 and 820 of the Transportation, Treasury, Housing and Urban
Development, the Judiciary, and Independent Agencies
Appropriations Act, 2006 (Public Law 109-115).</DELETED>
<DELETED> (f) Materials Not Held by Agencies.--Nothing in this Act
shall be construed to limit the rights or obligations of any chemical
source, any entity that is not a Federal, State, or local government
agency in possession of a record described in paragraphs (1)(B),
(2)(C), and (3)(B) of subsection (a), or any individual, with respect
to the withholding or disclosure of any information or record held by
the chemical source, entity, or individual, regardless of whether or
not the Department has received or possesses similar or identical
information or a similar or identical record.</DELETED>
<DELETED> (g) Disclosure of Independently Furnished Information.--
</DELETED>
<DELETED> (1) In general.--Nothing in this Act shall be
construed to affect the handling, treatment, or disclosure of a
record or information obtained from a chemical source under any
other law.</DELETED>
<DELETED> (2) Other authority.--Nothing in this Act shall be
construed to affect any authority or obligation of an agency to
disclose any record that the agency receives independently of a
record that is exempt under this section from the public
disclosure requirements under section 552 of title 5, United
States Code, regardless of whether or not the Department has an
identical or similar record that is so exempt.</DELETED>
<DELETED> (h) Other Obligations Unaffected.--</DELETED>
<DELETED> (1) In general.--Nothing in this section affects
any obligation of the owner or operator of a chemical source to
submit or make available information to a Federal, State, or
local government agency under, or otherwise to comply with, any
other law.</DELETED>
<DELETED> (2) No use of information to gain governmental
benefit.--The owner or operator of a chemical source may not
use any record described in paragraph (1)(B), (2)(C), or (3)(B)
of subsection (a) to satisfy any legal requirement or
obligation other than a requirement under this Act or to obtain
any grant, permit, contract, benefit (including agency
forbearance, loans, or deduction or modifications of agency
penalties or rulings) or other governmental approval.</DELETED>
<DELETED> (i) Availability of Information to Congress.--Nothing in
this Act shall be construed to authorize information to be withheld
from Congress.</DELETED>
<DELETED> (j) Penalties for Unauthorized Disclosure.--Any officer or
employee of a Federal, State, or local government agency who, in a
manner or to an extent not authorized by law, knowingly discloses any
record described in paragraph (1)(B), (2)(C), or (3)(B) of subsection
(a) shall--</DELETED>
<DELETED> (1) be imprisoned not more than 1 year, fined
under chapter 227 of title 18, United States Code, or both;
and</DELETED>
<DELETED> (2) if an officer or employee of the Government,
be removed from Federal office or employment.</DELETED>
<DELETED>SEC. 10. STATE AND OTHER LAWS.</DELETED>
<DELETED> (1) In general.--Nothing in this Act shall
preclude or deny any right of any State or political
subdivision thereof to adopt or enforce any regulation,
requirement, or standard of performance respecting chemical
facility security that is more stringent than a regulation,
requirement, or standard of performance in effect under this
Act, or shall otherwise impair any right or jurisdiction of the
States with respect to chemical facilities within such States
unless there is an actual conflict between a provision of this
Act and the law of the State.</DELETED>
<DELETED> (2) Other requirements.--Nothing in this Act shall
preclude or deny the right of any State or political
subdivision thereof to adopt or enforce any regulation,
requirement, or standard of performance, including air or water
pollution requirements, that are directed at problems other
than reducing damage from terrorist attacks.</DELETED>
<DELETED>SEC. 11. CHEMICAL SECURITY REPORTING.</DELETED>
<DELETED> Not later than 6 months after the date of enactment of
this Act, the Secretary shall submit to the Committee on Homeland
Security and Governmental Affairs of the Senate and the Committee on
Homeland Security and the Committee on Energy and Commerce of the House
of Representatives an update of the national strategy for the chemical
sector required to be submitted by the Secretary to the Committee on
Appropriations of the Senate and the Committee on Appropriations of the
House of Representatives by February 10, 2006.</DELETED>
<DELETED>SEC. 12. REVIEW BY THE GOVERNMENT ACCOUNTABILITY
OFFICE.</DELETED>
<DELETED> (a) Accessibility.--The Secretary shall provide access to
the Government Accountability Office of any document or information
required to be submitted to, generated by, or otherwise in the
possession of the Department under this Act.</DELETED>
<DELETED> (b) Review and Reports.--</DELETED>
<DELETED> (1) In general.--Not later than January 1 of the
first year following the calendar year in which the regulations
are promulgated under section 4(a)(1), and on January 1 of each
year thereafter, the Government Accountability Office shall
submit a report described under paragraph (2) to--</DELETED>
<DELETED> (A) the Committee on Homeland Security and
Governmental Affairs of the Senate; and</DELETED>
<DELETED> (B) the Committee on Homeland Security of
the House of Representatives and the Committee on
Energy and Commerce of the House of
Representatives.</DELETED>
<DELETED> (2) Contents.--Each report submitted under
paragraph (1) shall include--</DELETED>
<DELETED> (A) a review of site security plans,
vulnerability assessments, and emergency response plans
under this Act; and</DELETED>
<DELETED> (B) a determination of whether such plans
and assessments are in compliance with this
Act.</DELETED>
<DELETED>SEC. 13. AUTHORIZATION OF APPROPRIATIONS.</DELETED>
<DELETED> There are authorized to be appropriated such sums as are
necessary to carry out this Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Chemical Facility Anti-Terrorism Act
of 2006''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Chemical source.--The term ``chemical source'' means a
facility designated as a chemical source by the Secretary under
section 3.
(2) Critical infrastructure.--The term ``critical
infrastructure'' has the meaning given the term in section 2 of
the Homeland Security Act of 2002 (6 U.S.C. 101).
(3) Department.--The term ``Department'' means the
Department of Homeland Security.
(4) Environment.--The term ``environment'' has the meaning
given the term in section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601).
(5) Higher risk tier.--The term ``higher risk tier'' means
a tier designated by the Secretary as a higher risk tier under
section 3(e)(3).
(6) MTSA-regulated facilities.--The term ``MTSA-regulated
facility'' means a facility subject to the security
requirements under chapter 701 of title 46, United States Code
(commonly known as the ``Maritime Transportation Security
Act'').
(7) Owner or operator.--The term ``owner or operator''
means any person who owns, leases, operates, controls, or
supervises a chemical source.
(8) Protected information.--The term ``protected
information'' means--
(A) a vulnerability assessment, site security plan,
an area security plan required under section 6(d)(4),
and a security addendum to the emergency response plan
under section 4(a)(7)(C), prepared for the purposes of
this Act and obtained by the Department under section
4;
(B) materials obtained by the Department and
developed or produced by a chemical source exclusively
in preparation of records, documents, or information
referred to under subparagraph (A) or an emergency
response plan;
(C) any document or other information obtained by
the Secretary or a State or local government from a
chemical source in accordance with this Act, to the
extent that the document or information contains
information that--
(i) describes a specific chemical source or
the specific vulnerabilities of a chemical
source;
(ii) was taken from a record described
under subparagraph (A) or (B) or from a copy of
such record in the possession of the chemical
source; and
(iii) would, if disclosed, be detrimental
to the security of a chemical source; and
(D) any document prepared by, or provided to a
Federal agency or State or local government, to the
extent that the document contains information that--
(i) describes a specific chemical source or
the specific vulnerabilities of a chemical
source;
(ii) was taken from a record described
under subparagraph (A) or (B) or from a copy of
such record in the possession of the chemical
source; and
(iii) would, if disclosed, be detrimental
to the security of a chemical source.
(9) Release.--The term ``release'' has the meaning given
the term in section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601).
(10) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
(11) Security measure.--
(A) In general.--The term ``security measure''
means an action to ensure or enhance the security of a
chemical source against a terrorist incident.
(B) Inclusions.--The term ``security measure'',
with respect to a chemical source, includes measures
such as--
(i) employee training and background and
identification authentication checks;
(ii) the limitation and prevention of
access to the controls of the chemical source;
(iii) the protection of the perimeter of
the chemical source;
(iv) the installation and operation of
intrusion detection sensors;
(v) the implementation of measures to
increase computer or computer network security;
(vi) the implementation of other security-
related measures to ensure or enhance the
security of a chemical source from a terrorist
incident;
(vii) the implementation of measures and
controls to prevent, protect against, or reduce
the consequences of a terrorist incident,
including--
(I) contingency and evacuation
plans;
(II) early warning systems; and
(III) the relocation, hardening of
the storage or containment,
modification, processing, substitution,
or reduction of substances of concern;
and
(viii) the conduct of any similar security-
related activity, as determined by the
Secretary.
(12) Substance of concern.--The term ``substance of
concern'' means--
(A) a chemical substance present at a chemical
source in quantities equal to or exceeding the
threshold quantities for the chemical substance, as
defined in or established under paragraphs (3) and (5)
of section 112(r) of the Clean Air Act (42 U.S.C.
7412(r)); and
(B) any other chemical substance designated as a
substance of concern by the Secretary under section
3(i), including ammonium nitrate, in quantities equal
to or exceeding the threshold quantities established
under section 3(i), based on the potential extent of
death, injury, or serious adverse effects to human
health and safety or the environment or the potential
impact on national or economic security or critical
infrastructure caused by a terrorist incident involving
the chemical substance.
(13) Terrorism.--The term ``terrorism'' has the meaning
given the term in section 2 of the Homeland Security Act of
2002 (6 U.S.C. 101).
(14) Terrorist incident.--The term ``terrorist incident''
means--
(A) a terrorist attack against a chemical source;
(B) a release from a chemical source into the
environment of a substance of concern that is caused by
an act of terrorism; and
(C) the theft or diversion of a substance of
concern by a person for off-site release in furtherance
of an act of terrorism.
SEC. 3. DESIGNATION AND TIERING OF CHEMICAL SOURCES.
(a) Designation.--Not later than 1 year after the date of enactment
of this Act, the Secretary shall--
(1) promulgate regulations establishing criteria for
designating chemical sources by using the risk factors
described in subsection (b) and by evaluating the types of
facilities described in subsection (c) that shall be considered
in designating chemical sources; and
(2) designate chemical sources in existence as of that
date.
(b) Risk Factors To Be Considered.--In establishing criteria under
subsection (a)(1) for designating chemical sources, the Secretary shall
consider--
(1) the perceived threat to a facility, including a
consideration of adversary capabilities and intent,
preparedness, target attractiveness, and deterrence
capabilities;
(2) the potential extent and likelihood of death, injury,
or serious adverse effects to human health and safety or to the
environment caused by a terrorist incident at a facility;
(3) the threats to or potential impact on national security
or critical infrastructure caused by a terrorist incident at a
facility;
(4) the potential threats or harm to the economy that would
result from a terrorist incident at a facility, including
whether a facility is the sole supplier, or the producer of a
high percentage, of a product that is critical to the economy,
the chemical industry, or national security;
(5) the proximity of a facility to population centers;
(6) the nature and quantity of substances of concern at a
facility; and
(7) such other security-related factors as the Secretary
determines to be appropriate and necessary to protect the
public health and safety, critical infrastructure, and national
and economic security.
(c) Criteria for Facilities.--In establishing criteria under
subsection (a)(1) for designating chemical sources, the Secretary
shall--
(1) consider any facility that is a stationary source (as
defined in section 112(r)(2) of the Clean Air Act (42 U.S.C.
7412(r)(2))) for which the owner or operator is required to
complete a risk management plan in accordance with section
112(r)(7)(B)(ii) of the Clean Air Act (42 U.S.C.
7412(r)(7)(B)(ii));
(2) consider any other facility that produces, uses, or
stores a substance of concern at which a risk factor described
in subsection (b) is present; and
(3) determine whether any additional facility (including,
as of the date of the determination, any facility that is
operational and any facility that will become operational in
the future) shall be designated chemical sources under this
Act.
(d) Exclusions.--In designating facilities as chemical sources, the
Secretary shall not include any facility owned or operated by the
Department of Defense or the Department of Energy, or any facility
owned or operated by a licensee or certificate holder of the Nuclear
Regulatory Commission.
(e) Tiered Security System.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall promulgate rules
establishing a risk-based tier system of chemical sources
that--
(A) shall be based on the criteria established by
the Secretary under subsection (a)(1);
(B) consists of several tiers of chemical sources;
(C) to the maximum extent practicable, enables a
chemical source to develop appropriate site-specific
measures to meet the security performance standards
established under subsection (f) for the tier
applicable to the chemical source; and
(D) provides guidance to the owner or operator of a
chemical source regarding the steps that would enable
the chemical source to move to a lower risk tier, if
the owner or operator seeks to move to a lower risk
tier.
(2) Determination of tier.--Not later than 1 year after the
date of enactment of this Act, the Secretary shall determine
the tier applicable to each chemical source designated under
subsection (a)(2).
(3) Higher risk tiers.--The Secretary shall designate 1 or
more tiers established under paragraph (1) as higher risk
tiers.
(f) Security Performance Standards.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall establish security
performance standards appropriate to the risk-based tiers
established under subsection (e).
(2) Contents.--The security performance standards
established under paragraph (1) shall--
(A) set increasingly strict security requirements
as the level of risk for the tier increases;
(B) enable a chemical source to select security
measures that, in combination, satisfy the security
performance standards established by the Secretary; and
(C) be based on the criteria in section 4(a)(2).
(3) Guidance and consultation.--
(A) In general.--On the date on which the Secretary
establishes security performance standards under
paragraph (1), and based on the risk factors to be
considered under subsection (b), the Secretary shall
provide guidance to a chemical source regarding the
types of security measures that, if applied, could
satisfy the security performance standards.
(B) Alternate measures.--The owner or operator of a
chemical source shall have flexibility to employ
different security measures than those contained in the
guidance described in subparagraph (A) if such measures
satisfy the security performance standards established
for the tier applicable to the chemical source.
(C) Higher risk tiers.--At the request of the owner
or operator of a chemical source assigned to a higher
risk tier under subsection (e)(2), the Secretary shall
provide consultation on the types of security measures
that, if applied, could satisfy the security
performance standards.
(g) Notice to Facilities.--Not later than 180 days after the date
of enactment of this Act, the Secretary shall notify facilities that
may be designated as chemical sources regarding the review of
facilities and designation of chemical sources to be conducted under
this Act, including the timeline for such review and designation.
(h) Subsequent Determinations.--
(1) Periodic review of determinations.--Not later than 3
years after the designation of chemical sources under
subsection (a)(2), and every 3 years thereafter, the Secretary
shall, after considering the criteria established under
subsection (a)(1) and the exclusions under subsection (d),
determine whether to designate any additional facility as a
chemical source or remove the designation of any particular
facility as a chemical source.
(2) Other review.--In addition to the periodic review
required under paragraph (1), the Secretary may, after
considering the criteria established under subsection (a)(1)
and the exclusions under subsection (d), designate a facility
as a chemical source or remove the designation of any facility
as a chemical source.
(3) Duty to report.--
(A) Facilities becoming operational.--
(i) In general.--Each facility described in
clause (ii) shall file a petition with the
Secretary for a determination on whether that
facility should be designated as a chemical
source not later than 180 days after the later
of--
(I) the date of the promulgation of
final rules under subsection (a)(1); or
(II) the date that facility becomes
operational.
(ii) Facilities covered.--A facility
described in this clause is a facility--
(I) that becomes operational on or
after the date of the designation of
chemical sources under subsection
(a)(2); and
(II) at which a threshold quantity
of a substance of concern is present.
(B) Existing facilities.--
(i) In general.--Each facility described in
clause (ii) shall submit a petition to the
Secretary for a determination on whether that
facility should be designated as a chemical
source not later than 180 days after the later
of--
(I) the date of the promulgation of
final regulations under subsection
(a)(1); or
(II) the date on which the
threshold quantity of a substance of
concern is first present at that
facility.
(ii) Facilities covered.--A facility
described in this clause is a facility--
(I) for which the owner or operator
is not required to complete a risk
management plan under section
112(r)(7)(B)(ii) of the Clean Air Act
(42 U.S.C. 7412(r)(7)(B)(ii));
(II) that is operational before the
date of the promulgation of the final
rules establishing criteria for
designating chemical sources under
subsection (a)(1); and
(III) at which a threshold quantity
of a substance of concern is present.
(C) Consultation.--The Secretary, in consultation
with the Administrator of the Environmental Protection
Agency, shall establish a mechanism for the Secretary
to receive notice in a timely fashion of a facility
required by the Administrator to complete a risk
management plan in accordance with section
112(r)(7)(B)(ii) of the Clean Air Act (42 U.S.C.
7412(r)(7)(B)(ii)).
(D) Regulations.--The Secretary may promulgate
regulations to carry out subparagraphs (A) and (B).
(i) Designation, Exemption, and Adjustment of Threshold Quantities
of Substances of Concern.--
(1) In general.--The Secretary may, by regulation--
(A) designate a chemical substance, in a particular
threshold quantity, as a substance of concern under
this Act;
(B) exempt a chemical substance from designation as
a substance of concern under this Act; and
(C) establish or revise the threshold quantity for
a chemical substance to be designated a substance of
concern.
(2) Considerations.--In designating or exempting a chemical
substance or establishing or revising the threshold quantity of
a chemical substance under paragraph (1), the Secretary shall
consider the potential extent of death, injury, or serious
adverse effects to human health and safety or the environment
and the potential impact on national security, the economy, or
critical infrastructure that would result from a terrorist
incident involving the chemical substance.
(3) Regulations.--The Secretary may make a designation,
exemption, or revision under paragraph (1) in the regulations
promulgated under subsection (a)(1).
SEC. 4. VULNERABILITY ASSESSMENTS, SITE SECURITY PLANS, AND EMERGENCY
RESPONSE PLANS.
(a) Requirement.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall promulgate
regulations that require the owner or operator of each chemical
source--
(A) to conduct a vulnerability assessment,
evaluating the vulnerability of the chemical source to
a terrorist incident;
(B) to prepare and implement a site security plan
that addresses the risks identified in the
vulnerability assessment; and
(C) to prepare and implement an emergency response
plan or prepare and implement an addendum to an
existing emergency response plan to include response
planning for a terrorist incident.
(2) Regulatory criteria.--The regulations promulgated under
paragraph (1)--
(A) shall be risk-based, performance-based, and
flexible; and
(B) shall include consideration of--
(i) the criteria established by the
Secretary under section 3(a)(1);
(ii) cost and technical feasibility; and
(iii) scale of operations.
(3) Co-located chemical sources.--The regulations
promulgated under paragraph (1) shall permit the development
and implementation of coordinated vulnerability assessments,
site security plans, and emergency response plans in any case
in which more than 1 chemical source is operating at a single
location or at contiguous locations, including cases in which a
chemical source is under the control of more than 1 owner or
operator.
(4) Sharing of threat information.--To the maximum extent
practicable under applicable authority and in the interests of
national security, the Secretary shall provide State and local
government officials and an owner or operator of a chemical
source with threat information that is relevant to the chemical
source in particular or to the chemical sector in general.
(5) Contents of vulnerability assessment.--A vulnerability
assessment shall--
(A) employ or be based on a rigorous methodology
developed or endorsed by the Secretary;
(B) incorporate any threat information provided
under paragraph (4);
(C) address the appropriate security performance
standards established by Secretary under section 3(f);
and
(D) include an analysis of--
(i) physical security;
(ii) communication systems;
(iii) the vulnerability of programmable
electronic devices, computers, computer or
communications networks or other automated
systems which are utilized by the chemical
source;
(iv) the sufficiency of security measures
in place when the vulnerability assessment is
prepared relative to the threats and
consequences of a terrorist incident, including
vulnerabilities at the chemical source arising
from the nature and quantities of substances of
concern and the use, storage, or handling of
substances of concern; and
(v) other areas, as determined by the
Secretary.
(6) Contents of site security plan.--A site security plan
shall--
(A) indicate the tier applicable to the chemical
source, as determined by the Secretary under section
3(e)(2);
(B) include security measures that, in combination,
address--
(i) the risks identified in the
vulnerability assessment; and
(ii) the appropriate security performance
standards established by Secretary under
section 3(f) for the tier applicable to the
chemical source, as determined by the Secretary
under section 3(e)(2);
(C) include security measures--
(i) sufficient to deter, to the maximum
extent practicable, a terrorist incident or a
substantial threat of such an incident;
(ii) to mitigate the consequences of a
terrorist incident; and
(iii) to increase the security of
programmable electronic devices, computers,
computer or communications networks, and other
automated systems.
(D) describe, at a minimum, particular plans,
processes, or procedures that could be used by or at
the chemical source in the event of a terrorist
incident;
(E) identify the roles and responsibilities of
employees at the chemical source;
(F) identify steps taken by the chemical source to
coordinate security measures and plans for response to
a terrorist incident with Federal, State, and local
government officials, including law enforcement and
first responders and specify the security officer who
will be the point of contact for the National Incident
Management System and Federal, State, and local law
enforcement and first responders;
(G) describe the training, drills (including
periodic unannounced drills), exercises, and security
actions of persons at the chemical source, to be
carried out under the plan to deter, to the maximum
extent practicable, a terrorist incident or a
substantial threat of such an incident; and
(H) describe security measures that would be
implemented under an order issued by the Secretary or
the designee of the Secretary under section 7(a).
(7) Contents of emergency response plan.--
(A) In general.--An emergency response plan shall--
(i) specifically address the consequences
of a terrorist incident identified in the
vulnerability assessment prepared under
paragraph (5);
(ii) be consistent with the site security
plan prepared under paragraph (6); and
(iii) identify the roles and
responsibilities of employees at the chemical
source.
(B) Relationship to the national contingency
plan.--
(i) In general.--Except as provided in
clause (ii), an emergency response plan shall
be a Federally approved or certified emergency
response plan in effect on the date of
enactment of this Act that is--
(I) consistent with guidance
provided by the National Response Team
established under the National
Contingency Plan created under section
105 of the Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980 (42 U.S.C. 9605); and
(II) modified to satisfy the
requirements of subparagraph (A).
(ii) No existing plan.--The owner or
operator of a chemical source that does not
have a Federally approved or certified
emergency response plan in effect on the date
of enactment of this Act shall follow the
guidance provided by the National Response Team
established under the National Contingency Plan
created under section 105 of the Comprehensive
Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9605) in
developing an emergency response plan to meet
the specific considerations of that chemical
source.
(C) Protection of security information.--If, in
order to meet the requirements of this paragraph, the
owner or operator of a chemical source is required to
include in an emergency response plan information, the
release of which would be detrimental to the security
of the source, that information shall be separated in a
security addendum to the emergency response plan.
(8) Guidance and consultation to chemical sources.--
(A) In general.--On the date on which the Secretary
promulgates regulations under paragraph (1), the
Secretary shall provide guidance to assist owners and
operators of chemical sources in complying with this
Act, including advice on aspects of compliance with
this Act that may be unique to small business concerns.
(B) Higher risk tiers.--At the request of the owner
or operator of a chemical source assigned to a higher
risk tier under section 3(e)(2), the Secretary shall
provide consultation on achieving compliance with this
Act, including consultation on the guidance provided
under subparagraph (A).
(b) Certification and Submission.--
(1) In general.--Not later than 6 months after the date of
the promulgation of regulations under subsection (a)(1), each
owner or operator of a chemical source shall certify in writing
to the Secretary that the owner or operator has completed a
vulnerability assessment and has developed and implemented, or
is implementing, a site security plan and an emergency response
plan in accordance with this Act.
(2) Submission.--Not later than 6 months after the date of
the promulgation of regulations under subsection (a)(1), an
owner or operator of a chemical source shall submit to the
Secretary copies of the vulnerability assessment, site security
plan, and emergency response plan of the chemical source for
review.
(3) Failure to comply.--If an owner or operator of a
chemical source fails to certify or submit a vulnerability
assessment, site security plan, or emergency response plan in
accordance with paragraph (2), the Secretary may issue an order
requiring the certification and submission of a vulnerability
assessment, site security plan, or emergency response plan in
accordance with this section.
(c) Review by the Secretary.--
(1) In general.--The Secretary shall--
(A) review the vulnerability assessment, site
security plan, and emergency response plan submitted by
the owner or operator of a chemical source under
subsection (b)(2) to determine whether the assessment
and plans and the implementation of such plans comply
with this section;
(B) provide written notice to the owner or operator
of the chemical source regarding the determination of
whether the assessment and plans described in
subparagraph (A) comply with this section; and
(C) provide written notice to the owner or operator
of the chemical source, if the Secretary determines the
implementation of a plan described in subparagraph (A)
does not comply with this section.
(2) Disapproval of site security plans.--Notwithstanding
any other provision of this subsection, the Secretary may not
disapprove a site security plan submitted under subsection
(b)(2) based on the presence or absence of a particular
security measure, if the site security plan satisfies the
security performance standards established under section 3(f)
for the tier applicable to the chemical source.
(3) Compliance.--
(A) In general.--If the Secretary disapproves a
vulnerability assessment, site security plan, or
emergency response plan of a chemical source under
paragraph (1), or determines that the implementation of
such a plan does not comply with this section, the
Secretary--
(i) shall provide the owner or operator of
the chemical source a written notification of
the determination that includes a clear
explanation of deficiencies in the
vulnerability assessment, site security plan,
emergency response plan, or implementation of
the site security plan;
(ii) shall consult with the owner or
operator of the chemical source to identify
appropriate steps to achieve compliance;
(iii) if, following consultation under
clause (ii), the owner or operator of the
chemical source does not achieve compliance by
such date as the Secretary determines to be
appropriate under the circumstances, shall
issue an order requiring the owner or operator
to correct specified deficiencies; and
(iv) if the owner or operator continues to
be in noncompliance, may issue an order for the
chemical source to cease operation.
(B) Compliance for higher risk tiers.--
(i) Interim notice.--Not later than 9
months after the later of the date of the
promulgation of regulations under subsection
(a)(1) and the date of the promulgation of
regulations under section 3(e), the Secretary
shall--
(I) conduct a preliminary review of
the vulnerability assessment, site
security plan, and emergency response
plan submitted under subsection (b)(2)
by a chemical source assigned to a
higher risk tier under section 3(e)(2);
and
(II) provide notice and assistance
in achieving compliance with this Act
to any chemical source assigned to a
higher risk tier under section 3(e)(2)
for which the Secretary determines the
vulnerability assessment, site security
plan, or emergency response plan may
not be approved under clause (ii).
(ii) Determination.--Not later than 1 year
after the later of the date of the promulgation
of regulations under subsection (a)(1) and the
date of the promulgation of regulations under
section 3(e), the Secretary shall determine
whether to approve, disapprove, or modify the
vulnerability assessment, site security plan,
and emergency response plan submitted under
subsection (b)(2) by a chemical source assigned
to a higher risk tier under section 3(e)(2).
(iii) Implementation.--The Secretary shall
determine whether implementation of the plans
described in clause (ii) complies with this
section.
(iv) Enforcement.--The Secretary may issue
an order to a chemical source assigned to a
higher risk tier under section 3(e)(2) to cease
operation if the Secretary--
(I) disapproves the vulnerability
assessment, site security plan, or
emergency response plan submitted by
such chemical source under subsection
(b)(2); or
(II) determines that the
implementation of a plan described in
subclause (I) does not comply with this
section.
(C) Compliance for other tiers.--Not later than 5
years after the date of the submission of the
vulnerability assessment, site security plan, and
emergency response plan under subsection (b)(2) by a
chemical source that is not assigned to a higher risk
tier under section 3(e)(2), the Secretary shall
complete the review of the assessment, plans, and
implementation of such plans and make a determination
regarding compliance with this section.
(D) Subsequent review.--The Secretary may conduct
subsequent reviews and determinations of compliance
under this Act for a chemical source on a schedule as
determined to be appropriate by the Secretary, with
priority given to chemical sources assigned to a higher
risk tier under section 3(e)(2).
(d) Submission and Certification of Changes.--
(1) In general.--Not later than 60 days after the date on
which a change is made to a chemical source that would have a
materially detrimental effect on the security of the chemical
source, the owner or operator of the chemical source shall--
(A) notify the Secretary in writing;
(B) provide a description of the change at the
chemical source;
(C) certify to the Secretary that the chemical
source has completed the review and implemented any
necessary modifications to the vulnerability
assessment, site security plan, or emergency response
plan; and
(D) provide to the Secretary a description of any
changes to the vulnerability assessment, site security
plan, or emergency response plan.
(2) Notice and request.--If the Secretary determines that
additional modification of a vulnerability assessment, site
security plan, or emergency response plan is required, the
Secretary shall--
(A) provide a written notice to the chemical source
owner or operator, requiring modifications addressing
any matters specified in the notice; and
(B) provide the owner or operator of the chemical
source not less than 60 days after the date of the
notice under subparagraph (A) to submit proposed
modifications.
(3) Temporary security measures.--During the period before
any revised security measures are implemented, an owner or
operator of a chemical source shall ensure temporary security
measures are implemented to address, to the maximum extent
practicable, the vulnerabilities identified by the owner or
operator of the chemical source during preparation of the
assessment or plans.
(e) MTSA-Regulated Facilities.--
(1) In general.--Except as provided in paragraph (4), a
chemical source that is also a MTSA-regulated facility shall
comply with this Act.
(2) Compliance.--
(A) In general.--A chemical source that is also a
MTSA-regulated facility shall review its facility
security assessment, facility security plan, and
emergency response plan and make any modifications
necessary to comply with the security performance
standards established for the tier applicable to the
chemical source under section 3(f) and the requirements
under subsection (a)(1).
(B) Submission.--Not later than 180 days after the
date on which the Secretary promulgates regulations
under subsection (a)(1), the owner or operator of a
chemical source that is also a MTSA-regulated facility
shall--
(i) submit the facility security
assessment, facility security plan, and
emergency response plan, with any appropriate
modifications under subparagraph (A), for the
chemical source to the Federal Maritime
Security Coordinator for the area in which the
chemical source is located and the Secretary
for approval; and
(ii) certify in writing to the Federal
Maritime Security Coordinator for the area in
which the facility is located and the Secretary
that--
(I) the facility security
assessment and facility security plan
for the facility are in compliance with
the security performance standards for
the tier applicable to the chemical
source under section 3(f) and the
requirements under subsection (a)(1);
and
(II) the owner or operator has
submitted an approved or certified
emergency response plan required under
chapter 701 of title 46, United States
Code, to the Federal Maritime Security
Coordinator for the area in which the
facility is located.
(3) Review by the secretary.--In accordance with the
procedures under subsection (c), the Secretary, in consultation
with the Federal Maritime Security Coordinator for the area in
which a chemical source that is also a MTSA-regulated facility
is located, shall determine whether a facility security
assessment and facility security plan submitted under paragraph
(2)(B) meets the security performance standards established by
the Secretary under section 3(f) and the requirements under
subsection (a)(1).
(4) Exemption.--A chemical source that is a MTSA-regulated
facility is exempt from section 6(d) of this Act.
(5) Integration and coordination.--
(A) In general.--The Secretary shall implement this
Act and chapter 701 of title 46, United States Code, in
as consistent and integrated manner as possible.
(B) Coast guard.--The Secretary shall ensure
coordination between the Under Secretary for
Preparedness and the Coast Guard Commandant in carrying
out this Act.
(f) Alternative Security Programs.--
(1) In general.--The Secretary may consider a petition
submitted by any person that describes--
(A) alternate procedures, protocols, and standards
established by an industry entity, Federal, State, or
local government authorities, or other applicable laws;
and
(B) the scope of chemical sources to which such
program would apply.
(2) Review.--The Secretary may review the requirements of
any alternative security program submitted under paragraph (1)
to determine whether a vulnerability assessment, security plan,
or emergency response plan prepared under that program meets
each required element under subsection (a)(1) for a
vulnerability assessment, security plan, and emergency response
plan submitted under subsection (b)(2).
(3) Determination.--
(A) In general.--If the Secretary determines that a
vulnerability assessment, security plan, or emergency
response plan prepared under that alternative security
program meets each required element under subsection
(a)(1) for a vulnerability assessment, security plan,
and emergency response plan submitted under subsection
(b)(2), the Secretary shall notify the petitioner that
any chemical source covered by that program may submit
an assessment or plan prepared under that program
without further revision.
(B) Other determinations.--If the Secretary
determines that a vulnerability assessment, security
plan, or emergency response plan prepared under that
alternative security program does not meet each
required element under subsection (a)(1) for a
vulnerability assessment, security plan, and emergency
response plan submitted under subsection (b)(2)--
(i) the Secretary may specify what
modifications would be necessary to meet the
required elements for a vulnerability
assessment, security plan, or emergency
response plan submitted under subsection
(b)(2); and
(ii) a chemical source covered by that
program may submit the assessment or plans with
the specified modifications.
(C) Form.--Any action taken by the Secretary under
this paragraph shall be made by rule, regulation, or
order.
(4) Review.--Nothing in this subsection shall relieve the
Secretary of the obligation--
(A) to review the vulnerability assessment,
security plan, and emergency response plan submitted by
each chemical source under this section according to
the performance standards established by section 3(f)
and the requirements under subsection (a)(1); or
(B) to approve or disapprove each submission on an
individual basis.
(g) Periodic Review.--
(1) In general.--On the timeline established by the
Secretary under paragraph (2), the owner or operator of a
chemical source shall--
(A) review the adequacy of the vulnerability
assessment, site security plan, and emergency response
plan for the chemical source;
(B) certify to the Secretary that the chemical
source has completed the review and implemented any
necessary modifications to the vulnerability
assessment, site security plan, or emergency response
plan; and
(C) provide to the Secretary a description of any
changes to the vulnerability assessment, site security
plan, or emergency response plan.
(2) Timing.--The Secretary shall establish a timeline for
review appropriate to the tier level of the chemical source
that requires a review--
(A) for a higher risk tier, not later than 1 year
after the date of approval of a vulnerability
assessment, site security plan, and emergency response
plan under subsection (c)(1) and not less often than
every 3 years thereafter; and
(B) for all other tiers, not later than 5 years
after the date of approval of a vulnerability
assessment, site security plan, and emergency response
plan under subsection (c)(1) and not less often than
every 5 years thereafter.
SEC. 5. RECORDKEEPING; SITE INSPECTIONS; PRODUCTION OF INFORMATION.
(a) Recordkeeping.--The owner or operator of a chemical source
shall retain a copy of the vulnerability assessment, site security
plan, and emergency response plan for the chemical source for not less
than 5 years after the date on which such assessment or plan was
approved by the Secretary under section 4(c).
(b) Right of Entry.--
(1) In general.--In carrying out this Act, the Secretary or
the designee of the Secretary, on presentation of credentials,
shall have a right of entry to, on, or through--
(A) the premises of a chemical source; and
(B) any premises on which any record required to be
maintained under subsection (a) is located.
(2) Audits and inspections.--
(A) In general.--The Secretary shall, at such times
and places as the Secretary determines to be
appropriate, conduct, or require the conduct of,
facility security audits and inspections, the
requirements of which may be established by rule,
regulation, or order.
(B) Scope.--Audits and inspections under
subparagraph (A) shall ensure and evaluate compliance
with this Act.
(C) Higher risk tiers.--
(i) In general.--Not later than 1 year
after the date of submission of the
vulnerability assessment, site security plan,
and emergency response plan under section
4(b)(2) by the owner or operator of a chemical
source assigned to a higher risk tier under
section 3(e)(2), and every year thereafter, the
Secretary shall conduct an audit or inspection
of such chemical source.
(ii) Federal area security coordinator
audits.--An audit or inspection by a Federal
Area Security Coordinator shall qualify as an
audit or inspection under clause (i).
(iii) Exemption from annual audits and
inspections.--
(I) In general.--The Secretary may
exempt a chemical source from annual
audits or inspections under this
subparagraph, if the chemical source
has been found in compliance with this
Act by the Secretary based upon 5
consecutive years of audits or
inspections.
(II) Audits and inspections.--If
the Secretary exempts a chemical source
under this clause, during the 5-year
period after the date of granting such
exemption, and during each 5-year
period thereafter, the Secretary shall
conduct not less than 1 audit or
unannounced inspection of such chemical
source.
(c) Requests for Records.--In carrying out this Act, the Secretary
may require the submission of, or, on presentation of credentials, may
at reasonable times seek access to and copy--
(1) any records, reports, or other information described in
subsection (a); and
(2) any other documentation necessary for the--
(A) review or analysis of a vulnerability
assessment or security plan; or
(B) implementation of a security plan.
(d) Compliance.--If the Secretary determines that an owner or
operator of a chemical source is not maintaining, producing, or
permitting access to records or to the premises of the chemical source
as required by this section, the Secretary may issue an order requiring
compliance with the relevant provisions of this section.
SEC. 6. INFRASTRUCTURE PROTECTION AND IMPLEMENTATION.
(a) Coordination.--
(1) In general.--The Secretary shall ensure effective
chemical security planning and response by providing the
necessary infrastructure, leadership, technical assistance,
guidance, and accountability for security planning and response
in areas surrounding chemical sources.
(2) With other law.--The Secretary shall model the
regulations promulgated, organizations established, and actions
taken under this section on the requirements of sections 70102,
70103, 70104, and 70112 of title 46, United States Code.
(3) With committees.--The Secretary, and those in positions
assigned under this section, shall coordinate with other
Federal area security and response committees in order to
provide a unified and effective Federal effort for security and
response organizational infrastructure for the Nation. Nothing
in this section shall supersede any other Federal area security
or response committee and the entities established under this
section shall be organized to complement such other committees.
(b) Compliance Office.--
(1) Establishment.--Not later than 3 months after the date
of enactment of this Act, the Secretary shall establish an
office under the Assistant Secretary for Infrastructure
Protection that shall be responsible for implementing and
enforcing this Act.
(2) Activities.--The Secretary, acting through the
Assistant Secretary for Infrastructure Protection, shall--
(A) provide leadership, guidance, planning,
technical assistance, resources, and conduct oversight
activities to establish an effective chemical security
planning and response infrastructure for the Nation;
(B) provide leadership, personnel, training,
equipment, other resources as necessary, and technical
assistance to--
(i) Federal, State and local government
agencies;
(ii) Infrastructure Protection Regional
Security Offices; and
(iii) Area Security Committees, as
requested by the Federal Area Security
Coordinator;
(C) coordinate with law enforcement agencies, first
responders, and chemical sources regarding the response
to a potential or actual terrorist incident at a
chemical source;
(D) review and approve each Area Security Plan
submitted under subsection (d); and
(E) coordinate with the Office of State and Local
Government Coordination and Preparedness of the
Department, to ensure some homeland security grants
administered by the Department support the plans
required under this section.
(c) Infrastructure Protection Regional Security Offices.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act, the Secretary shall establish in each
Federal Emergency Management Agency Region (or the regional
office of a successor agency with responsibility for emergency
management, preparedness, and response) an Infrastructure
Protection Regional Security Office, for purposes of carrying
out this Act and coordinating regional security, as described
in this section.
(2) Membership and duties.--Each Infrastructure Protection
Regional Security Office shall--
(A) consist of--
(i) the personnel of the Infrastructure
Protection Office of the Department within the
region; and
(ii) a regional security advisory staff, to
be appointed by the Secretary;
(B) review and approve each Area Security Plan for
the region to ensure coordination between regions and
States;
(C) oversee implementation of this Act to ensure
consistent implementation within the region, in
conjunction with the strategic mission and policies of,
and guidance from, the Department; and
(D) perform other functions as assigned by the
Secretary necessary to implement the requirements of
this Act or help protect other critical infrastructure.
(d) Area Security Committees and Plans.--
(1) Designation of areas and federal area security
coordinators.--
(A) Deadline.--Not later than 6 months after the
date of enactment of this Act, the Secretary shall
designate geographic areas for the Area Security
Committees established under paragraph (2).
(B) Requirements.--In designating areas under
subparagraph (A), the Secretary shall ensure that--
(i) except as provided in subparagraph (C),
all parts of the United States are included in
an area; and
(ii) no area is larger than a single State,
although an area may incorporate portions of
more than 1 State, based on the organization
and number of chemical sources in a geographic
area.
(C) Exclusion.--Any area designated under section
70103(a)(2)(G) of title 46, United States Code, shall
not be included in any area designated under this Act.
(2) Establishment and designation.--
(A) Committees.--There is established for each area
designated by the Secretary under paragraph (1) an Area
Security Committee, comprised of members appointed by
the Secretary, in consultation with State and local
government officials, from qualified and affected
security and response personnel of Federal, State, and
local government agencies, chemical sources, local
emergency planning and response entities, other
critical infrastructure sectors, and other appropriate
organizations.
(B) Coordinator.--For each area designated by the
Secretary under paragraph (1), the Secretary shall
designate a Federal Area Security Coordinator with
knowledge of and experience in the activities required
under this subsection.
(3) Duties.--
(A) Committees.--Each Area Security Committee,
under the direction of the Federal Area Security
Coordinator for the area assigned to such Area Security
Committee, shall--
(i) meet not less frequently than twice
each year;
(ii) prepare the Area Security Plan
described in paragraph (4) for that area and
submit the Area Security Plan to the Secretary
for approval; and
(iii) coordinate with Federal, State, and
local government officials and chemical sources
to enhance the security and response planning
of those officials and to assure effective
preplanning of joint security and response
efforts, including exercises, drills,
evacuations, sheltering, and rescue.
(B) Coordinator.--Each Federal Area Security
Coordinator shall, for the area assigned to such
official--
(i) conduct audits and inspections of
chemical sources under this Act;
(ii) provide appropriate guidance and
support to chemical sources; and
(iii) perform such other duties as are
required by the Area Security Committee or the
Secretary.
(4) Area security plans.--
(A) In general.--Not later than 2 years after the
date of enactment of this Act, each Area Security
Committee shall prepare and submit to the Secretary for
approval an Area Security Plan for the area assigned to
such Area Security Committee.
(B) Plan requirements.--The Area Security Plan
shall--
(i) coordinate the resources of the area
assigned to the Area Security Committee to
deter a potential or actual terrorist incident
at a chemical source in that area, or to
respond to a terrorist incident at a chemical
source in that area;
(ii) coordinate with the National
Infrastructure Protection Plan, the National
Response Plan, the site security plan of any
chemical source located in the area assigned to
the Area Security Committee, other appropriate
national security and response plans, and the
Area Security Plans for contiguous areas;
(iii) reflect security and response post-
incident investigative reports, as determined
by the Secretary;
(iv) describe in detail the
responsibilities of an owner or operator of a
chemical source (based upon the approved site
security plan for the chemical source) and of
Federal, State, and local government agencies
in responding to potential or actual terrorist
incident at a chemical source operating in the
area assigned to the Area Security Committee;
(v) describe the area covered by the plan,
list the assets and resources available to
respond to a terrorist incident, and include
any other information the Secretary requires;
(vi) be updated periodically by the Area
Security Committee; and
(vii) provide for coordination with the
appropriate Federal, State and local government
agencies or members of local entities that plan
for emergency releases from chemical sources
regarding how local populations that may be
affected by a release are provided with
information, including evacuation planning,
sheltering in place, and areas of refuge.
(5) Review.--Not later than 3 years after the date of
enactment of this Act, the Secretary shall--
(A) review each Area Security Plan developed under
paragraph (4);
(B) require amendments to any plan that does not
meet the requirements of this section; and
(C) approve each plan that meets the requirements
of this section.
(e) Area Exercises and Drills.--
(1) In general.--The Secretary shall periodically conduct
drills and exercises, some without prior notice, including full
functional and communications exercises of security and
response capability in each area for which an Area Security
Plan is required under this section and under the site security
plan and emergency response plans of relevant chemical sources.
(2) Scope of participation.--The drills and exercises
conducted under paragraph (1) may include participation by--
(A) Federal, State, and local government agencies,
including law enforcement and first responders;
(B) the owner and operator of any chemical source
in the area;
(C) members of local entities that plan for
emergency releases;
(D) representatives of other critical
infrastructure; and
(E) other participants as determined appropriate by
the Secretary or the designee of the Secretary.
(3) Reports.--The Secretary shall publish annual reports on
drills under this subsection, including assessments of the
effectiveness of the plans described in paragraph (1), lessons
learned, and recommendations, if any, to improve the programs,
plans, and procedures under this subsection. The annual reports
shall not include protected information.
(f) Regulations.--The Secretary may promulgate such regulations as
are necessary to carry out this section.
SEC. 7. HEIGHTENED SECURITY MEASURES.
(a) In General.--If the Secretary determines, based on the risk
factors described in section 3(b), that additional security measures
are necessary to respond to a threat assessment or to a specific threat
against the chemical sector, the Secretary may issue an order to the
owner or operator of a chemical source to implement the heightened
security measures described under section 4(a)(6)(H). Only the
Secretary or the designee of the Secretary may issue an order under
this section.
(b) Period of Order.--
(1) In general.--Any order issued by the Secretary under
subsection (a) shall be effective upon issuance and shall
remain in effect for a period of not more than 90 days, unless
the Secretary files an action in an appropriate United States
district court before the expiration of that 90-day period.
(2) Effect of filing.--If the Secretary files an action
described in paragraph (1), an order issued by the Secretary
under subsection (a) shall remain in effect for 14 days in
addition to the 90-day period under paragraph (1), or for such
shorter or longer period as may be authorized by the court in
which such action is filed.
SEC. 8. PENALTIES.
(a) Administrative Penalties.--
(1) Penalties.--The Secretary may impose an administrative
penalty of not more than $25,000 for each day, and not more
than a maximum of $1,000,000 for each year, for failure to
comply with an order or directive issued by the Secretary under
this Act.
(2) Notice and hearing.--Before imposing a penalty under
paragraph (1), the Secretary shall provide to the person
against which the penalty is to be assessed--
(A) a written notice of the proposed penalty; and
(B) not later than 30 days after the date on which
the person receives the notice, the opportunity to
request a hearing on the proposed penalty.
(3) Procedures.--The Secretary shall promulgate regulations
establishing procedures for administrative hearings and
appropriate review, including necessary deadlines.
(b) Civil Penalties.--
(1) In general.--The Secretary may bring an action in a
United States district court against any owner or operator of a
chemical source that violates or fails to comply with any order
or directive issued by the Secretary under this Act or a site
security plan approved by the Secretary under this Act
(2) Relief.--In any action under paragraph (1), a court may
issue an order for injunctive relief and may award a civil
penalty of not more than $50,000 for each day on which a
violation occurs or a failure to comply continues.
(c) Criminal Penalties.--An owner or operator of a chemical source
who knowingly and willfully violates any order issued by the Secretary
under this Act or knowingly and willfully fails to comply with a site
security plan approved by the Secretary under this Act shall be fined
not more than $50,000 for each day of such violation, imprisoned not
more than 2 years, or both.
SEC. 9. PROTECTION OF INFORMATION.
(a) Disclosure Exemptions.--
(1) Records of the department.--The Department shall not be
required under section 552 of title 5, United States Code, to
make available to the public protected information.
(2) Records of other agencies.--If a Federal agency other
than the Department receives a request under section 552 of
title 5, United States Code, for protected information, that
Federal agency--
(A) shall not disclose the record; and
(B) shall refer the request to the Department for
processing and response.
(3) Records of state or local government agencies.--A State
or local government agency shall not be required under any
State or local law providing for public access to information
to make available to the public protected information.
(b) Certifications and Orders.--
(1) In general.--
(A) Information not disclosed.--Except as provided
in subparagraph (B), the following records shall not be
made available to the public under section 552 of title
5, United States Code:
(i) Certifications.--A certification under
section 4(b)(1).
(ii) Order for failure to comply.--An order
under section 4(b)(3).
(iii) Compliance certificates.--A
certificate of compliance under paragraph (2).
(iv) Other orders.--Any other order or any
notice of disapproval issued under this Act.
(B) Exception.--
(i) In general.--If the Secretary makes a
specific finding and determination with respect
to a particular chemical source that releasing
any record described in subparagraph (A)(i) or
(iii) regarding that chemical source would not
increase the risk to the security of any
chemical source, the Secretary may make the
record available to the public under section
552 of title 5, United States Code.
(ii) Notice to gao.--If the Secretary does
not allow a record to be made available to the
public under this subsection, the Secretary
shall submit to the Comptroller General of the
United States, for inclusion and evaluation in
the reports under section 12, a detailed
statement--
(I) identifying the chemical
source;
(II) describing the record;
(III) explaining the basis for the
Secretary's determination; and
(IV) describing any security
measures being implemented by the
chemical source.
(2) Certification of compliance.--When the Secretary
determines that a chemical source is in compliance with the
requirements of this Act, the Secretary shall issue a
certificate of approval that contains the following statement:
``____ (chemical source name) ____ is in compliance with the
Chemical Facility Anti-Terrorism Act of 2006.''.
(3) Report to congress.--Not less frequently than once each
year, the Secretary shall submit to Congress a public report on
the performance of chemical sources under the Act, in the
aggregate, including a description of common problems,
solutions, and industry best practices.
(c) Development of Protocols.--
(1) In general.--The Secretary, in consultation with the
Director of the Office of Management and Budget and appropriate
Federal law enforcement and intelligence officials and in a
manner consistent with existing protections for sensitive or
classified information, shall, by regulation, establish
confidentiality protocols for maintenance and use of records
containing protected information.
(2) Requirements for protocols.--The protocols established
under paragraph (1) shall ensure, to the maximum extent
practicable, that--
(A) the records shall be maintained in a secure
location; and
(B) access to records shall be limited--
(i) as may be necessary to--
(I) enable enforcement of this Act;
or
(II) address an imminent and
substantial threat to security, health,
safety, or the environment;
(ii) to State or local law enforcement
officials, first responders, or other State or
local government officials granted access to
records for the purpose of carrying out this
Act, including providing such officials and
first responders with information on the extent
to which security of chemical sources in the
State or local area is being achieved; and
(iii) to other persons granted access for
the purpose of carrying out this Act.
(3) Other procedures in protocols.--The protocols
established under paragraph (1) shall also--
(A) provide for the labeling of any record
containing protected information to enable the
sensitive information in such record to be traced back
to the specific document from which the information was
derived;
(B) accommodate the making of disclosures under
sections 2302(b)(8) and 7211 of title 5, United States
Code, and provide guidance to employees as to how to
make such disclosures without compromising security;
(C) include procedures applicable to a request
under section 552 of title 5, United States Code,
requiring that any portion of a record that reasonably
may be separated shall be provided to a person
requesting the record after redaction of any portion
that is exempt from disclosure; and
(D) establish procedures by which a record
containing protected information may become subject to
the requirements regarding public disclosure under
section 552 of title 5, United States Code, when,
because of changed circumstances or the passage of
time, disclosure of the record would not be detrimental
to the security of a chemical source.
(d) Process for Reporting Problems.--
(1) Establishment of a reporting process.--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 chemical source.
(2) Confidentiality.--The Secretary shall keep confidential
the identity of a person who submits a report under paragraph
(1) and any such report shall be treated as a record containing
protected information to the extent that it does not consist of
publicly available information.
(3) Acknowledgment of receipt.--If a report submitted under
paragraph (1) identifies the person making the report, the
Secretary shall respond promptly to such person and acknowledge
receipt of the report.
(4) Steps to address problems.--The Secretary shall review
and consider the information provided in any report submitted
under paragraph (1) and shall take appropriate steps under this
Act to address any problems or deficiencies identified.
(5) Retaliation prohibited.--No employer may discharge any
employee or otherwise discriminate against any employee with
respect to the compensation to, or terms, conditions, or
privileges of the employment of, such employee because the
employee (or a person acting pursuant to a request of the
employee) made a report under paragraph (1).
(6) GAO reporting.--The Comptroller General of the United
States shall, in the reports under section 12--
(A) describe the number and type of problems,
deficiencies, and vulnerabilities reported on under
this subsection; and
(B) evaluate the Secretary's efforts in addressing
such problems, deficiencies, and vulnerabilities.
(e) Protected Disclosures.--Nothing in this Act shall be construed
to limit the right of an individual to make any disclosure--
(1) protected or authorized under section 2302(b)(8) or
7211 of title 5, United States Code;
(2) protected under any other Federal or State law that
shields the disclosing individual against retaliation or
discrimination for having made the disclosure in the public
interest; or
(3) to the Special Counsel, the inspector general of an
agency, or any other employee designated by the head of an
agency to receive similar disclosures.
(f) Materials Not Held by Agencies.--Nothing in this Act shall be
construed to limit the rights or obligations of any chemical source,
any entity that is not a Federal, State, or local government agency in
possession of a record containing protected information, or any
individual, with respect to the withholding or disclosure of any
information or record held by the chemical source, entity, or
individual, regardless of whether or not the Department has received or
possesses similar or identical information or a similar or identical
record.
(g) Disclosure of Independently Furnished Information.--
(1) In general.--Nothing in this Act shall be construed to
affect the handling, treatment, or disclosure of a record or
information obtained from a chemical source under any other
law.
(2) Other authority.--Nothing in this Act shall be
construed to affect any authority or obligation of an agency to
disclose any record that the agency receives independently of a
record that is exempt under this section from the public
disclosure requirements under section 552 of title 5, United
States Code, regardless of whether or not the Department has an
identical or similar record that is so exempt.
(h) Other Obligations Unaffected.--
(1) In general.--Nothing in this section affects any
obligation of the owner or operator of a chemical source to
submit or make available information to a Federal, State, or
local government agency under, or otherwise to comply with, any
other law.
(2) No use of information to gain governmental benefit.--
The owner or operator of a chemical source may not use any
record containing protected information to satisfy any legal
requirement or obligation other than a requirement under this
Act or to obtain any grant, permit, contract, benefit
(including agency forbearance, loans, or deduction or
modifications of agency penalties or rulings), or other
governmental approval.
(i) Availability of Information to Congress.--Nothing in this Act
shall be construed to authorize information to be withheld from
Congress.
(j) Penalties for Unauthorized Disclosure.--Any officer or employee
of a Federal, State, or local government agency who, in a manner or to
an extent not authorized by law, knowingly discloses any record
containing protected information shall--
(1) be imprisoned not more than 1 year, fined under chapter
227 of title 18, United States Code, or both; and
(2) if an officer or employee of the Government, be removed
from Federal office or employment.
(k) Public Availability of Information in Reports.--The Government
Accountability Office shall not make any protected information
available to the public in any report under section 12, except as
provided under subsection (b)(1) of this section.
SEC. 10. STATE AND OTHER LAWS.
(a) In General.--Nothing in this Act shall preclude or deny any
right of any State or political subdivision thereof to adopt or enforce
any regulation, requirement, or standard of performance respecting
chemical facility security that is more stringent than a regulation,
requirement, or standard of performance in effect under this Act, or
shall otherwise impair any right or jurisdiction of the States with
respect to chemical facilities within such States unless there is an
actual conflict between a provision of this Act and the law of the
State.
(b) Other Requirements.--Nothing in this Act shall preclude or deny
the right of any State or political subdivision thereof to adopt or
enforce any regulation, requirement, or standard of performance,
including air or water pollution requirements, that are directed at
problems other than reducing damage from terrorist attacks.
SEC. 11. CHEMICAL SECURITY REPORTING.
Not later than 6 months after the date of enactment of this Act,
the Secretary shall submit to the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on Homeland
Security and the Committee on Energy and Commerce of the House of
Representatives an update of the national strategy for the chemical
sector required to be submitted by the Secretary to the Committee on
Appropriations of the Senate and the Committee on Appropriations of the
House of Representatives by February 10, 2006.
SEC. 12. REVIEW BY THE GOVERNMENT ACCOUNTABILITY OFFICE.
(a) Accessibility.--The Secretary shall provide access to the
Government Accountability Office of any document or information
required to be submitted to, generated by, or otherwise in the
possession of the Department under this Act.
(b) Review and Reports.--
(1) In general.--Not later than January 1 of the first year
following the calendar year in which the regulations are
promulgated under section 4(a)(1), and on January 1 of each
year thereafter, the Government Accountability Office shall
submit a report described under paragraph (2) to--
(A) the Committee on Homeland Security and
Governmental Affairs of the Senate; and
(B) the Committee on Homeland Security of the House
of Representatives and the Committee on Energy and
Commerce of the House of Representatives.
(2) Contents.--Each report submitted under paragraph (1)
shall include--
(A) a review of site security plans, vulnerability
assessments, and emergency response plans under this
Act; and
(B) a determination of whether such plans and
assessments are in compliance with this Act.
SEC. 13. JUDICIAL ACTIONS.
(a) Regulations.--Not later than 60 days after the date of
promulgation of a regulation under this Act, any person may file a
petition for judicial review relating to the regulation with the United
States Court of Appeals for the District of Columbia.
(b) Orders.--
(1) In general.--Except as provided in section 7(b), not
later than 60 days after the date of a final agency action
under this Act, the owner or operator of a chemical source
affected by such action may file a petition for judicial review
of the action or order with the United States district court
for the district in which--
(A) the chemical source is located; or
(B) the owner or operator of the chemical source
has a principal place of business.
(2) Limitation of parties.--The parties in any civil action
commenced under paragraph (1) shall be limited to--
(A) the owner or operator filing the petition; and
(B) the Secretary.
(c) Exclusivity of Remedies.--Except as provided in section 7(b)
and subsections (a) and (b) of this section, no final agency action by
the Secretary (including regulations) under this Act shall be subject
to judicial review under chapter 7 of title 5, United States Code.
(d) Standard of Review.--On the filing of a petition under
subsection (a) or (b), the court shall review the regulation or other
final action or order that is the subject of the petition in accordance
with chapter 7 of title 5, United States Code.
(e) Private Actions.--Nothing in this Act confers on any private
person a right of action against an owner or operator of a chemical
source to enforce any provision of this Act.
SEC. 14. AMMONIUM NITRATE.
(a) Short Title.--This section may be cited as the ``Secure
Handling of Ammonium Nitrate Act of 2006''.
(b) Findings.--Congress finds that--
(1) ammonium nitrate is an important fertilizer used to
produce a reliable and affordable food supply for the United
States and the world;
(2) in the wrong hands, ammonium nitrate may be used for
illegal activities;
(3) the production, importation, storage, sale, and
distribution of ammonium nitrate affects interstate and
intrastate commerce; and
(4) it is necessary to regulate the production, storage,
sale, and distribution of ammonium nitrate.
(c) Definitions.--In this section:
(1) Ammonium nitrate.--The term ``ammonium nitrate'' means
solid ammonium nitrate that is chiefly the ammonium salt of
nitric acid and contains not less than 33 percent nitrogen by
weight.
(2) Facility.--The term ``facility'' means any site where
ammonium nitrate is produced or sold.
(3) Handle.--The term ``handle'' means to produce or sell
ammonium nitrate.
(4) Handler.--The term ``handler'' means any person that
produces or sells ammonium nitrate.
(5) Purchaser.--The term ``purchaser'' means any person who
buys or takes ownership of ammonium nitrate.
(d) Regulation of Handling and Purchase of Ammonium Nitrate.--
(1) In general.--The Secretary shall regulate the handling
and purchase of ammonium nitrate to prevent the
misappropriation or use of ammonium nitrate in violation of
law.
(2) Regulations.--The Secretary shall promulgate
regulations that require--
(A) handlers--
(i) to register facilities;
(ii) to sell or distribute ammonium nitrate
only to handlers and purchasers registered
under this section; and
(iii) to maintain records of sale or
distribution that include the name, address,
telephone number, and registration number of
the immediate subsequent purchaser of ammonium
nitrate; and
(B) purchasers to be registered.
(3) Use of previously submitted information.--Before
requiring a facility or handler to submit additional
information for registration under this subsection, the
Secretary shall--
(A) request from the Attorney General, and the
Attorney General shall provide, any information
previously submitted to the Attorney General by the
facility or handler under section 843 of title 18,
United States Code; and
(B) at the election of the facility or handler--
(i) use the license issued under that
section instead of requiring additional
information for registration under this
subsection; and
(ii) consider the license to fully comply
with the requirement for registration under
this subsection.
(4) Consultation.--In promulgating regulations under this
subsection, the Secretary shall consult with the Secretary to
Agriculture to ensure that the access of agricultural producers
to ammonium nitrate is not unduly burdened.
(5) Protection of information.--Notwithstanding any other
provision of this Act, registration information under this
section shall be treated as protected information under this
Act.
(e) Enforcement.--The Secretary may promulgate regulations that
establish a process for periodic monitoring or auditing of handler
records pertaining to the sale or transfer of ownership of ammonium
nitrate to determine compliance with the requirements established under
this section.
(f) Administrative Provisions.--
(1) Cooperative agreements.--The Secretary--
(A) may enter into a cooperative agreement with the
Secretary of Agriculture, or the head of any State
department of agriculture or its designee involved in
agricultural regulation, in consultation with the State
agency responsible for homeland security, to carry out
this section; and
(B) wherever possible, should seek to use
cooperation of State agricultural entities or their
designees that oversee handler operations when seeking
cooperative agreements to implement the registration
and enforcement provisions of this section.
(2) Delegation.--
(A) In general.--The Secretary may delegate to a
State the authority to assist the Secretary in the
administration and enforcement of this section.
(B) Delegation required.--On the request of the
Governor of a State, the Secretary shall delegate to
the State the authority to carry out actions under
subsection (d) or (e), on a determination by the
Secretary that the State is capable of satisfactorily
carrying out that subsection.
(C) Funding.--If the Secretary enters into an
agreement with a State under this subsection to
delegate functions to the State, the Secretary shall
provide to the State adequate funds to enable the State
to carry out the functions.
(g) Civil Liability.--
(1) Unlawful acts.--It is unlawful for any person to--
(A) fail to perform any duty required by this
section;
(B) violate the terms of registration under this
section;
(C) fail to keep any record, make any report, or
allow any inspection required by this section; or
(D) violate any sale or distribution order issued
under this section.
(2) Penalties.--
(A) In general.--A person that violates this
section may be assessed a civil penalty by the
Secretary of not more than $50,000 for each violation.
(B) Notice and opportunity for a hearing.--No civil
penalty shall be assessed under this subsection unless
the person charged has been given notice and
opportunity for a hearing on the charge in the county,
parish, or incorporated city of residence of the person
charged.
(3) Jurisdiction over actions for civil damages.--The
district courts of the United States shall have exclusive
jurisdiction over any action for civil damages against a
handler for any harm or damage that is alleged to have resulted
from the use of ammonium nitrate in violation of law that
occurred on or after the date of enactment of this Act.
SEC. 15. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are necessary
to carry out this Act.
Calendar No. 495
109th CONGRESS
2d Session
S. 2145
_______________________________________________________________________
A BILL
To enhance security and protect against terrorist attacks at chemical
facilities.
_______________________________________________________________________
June 26, 2006
Reported with an amendment