H.R. 4007 — Referred from Senate

IIB 113th CONGRESS 2d Session H. R. 4007 IN THE SENATE OF THE UNITED STATES July 9, 2014Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs AN ACT To recodify and reauthorize the Chemical Facility Anti-Terrorism Standards Program. 1. Short title This Act may be cited as the Chemical Facility Anti-Terrorism Standards Program Authorization and Accountability Act of 2014. 2. Chemical Facility Anti-Terrorism Standards Program (a) In general The Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by adding at the end the following: XXI CHEMICAL FACILITY ANTI–TERRORISM STANDARDS 2101. Chemical Facility Anti-Terrorism Standards Program (a) Program established There is in the Department a Chemical Facility Anti-Terrorism Standards Program. Under such Program, the Secretary shall establish risk-based performance standards designed to protect covered chemical facilities and chemical facilities of interest from acts of terrorism and other security risks and require such facilities to submit security vulnerability assessments and to develop and implement site security plans. (b) Security measures Site security plans required under subsection (a) may include layered security measures that, in combination, appropriately address the security vulnerability assessment and the risk-based performance standards for security for the facility. (c) Approval or disapproval of site security plans (1) In general The Secretary shall review and approve or disapprove each security vulnerability assessment and site security plan under subsection (a). The Secretary may not disapprove a site security plan based on the presence or absence of a particular security measure, but the Secretary shall disapprove a site security plan if the plan fails to satisfy the risk-based performance standards established under subsection (a). (2) Alternative security programs The Secretary may approve an alternative security program established by a private sector entity or a Federal, State, or local authority or pursuant to other applicable laws, if the Secretary determines that the requirements of such program meet the requirements of this section. A covered chemical facility may meet the site security plan requirement under subsection (a) by adopting an alternative security program that has been reviewed and approved by the Secretary under this paragraph. (3) Site security plan assessments In approving or disapproving a site security plan under this subsection, the Secretary shall employ the risk assessment policies and procedures developed under this title. In the case of a covered chemical facility for which a site security plan has been approved by the Secretary before the date of the enactment of this title, the Secretary may not require the resubmission of the site security information solely by reason of the enactment of this title. (4) Consultation The Secretary may consult with the Government Accountability Office to investigate the feasibility and applicability a third party accreditation program that would work with industry stakeholders to develop site security plans that may be applicable to all similarly situated facilities. The program would include the development of Program-Specific Handbooks for facilities to reference on site. (d) Compliance (1) Audits and inspections (A) In general The Secretary shall conduct the audit and inspection of covered chemical facilities for the purpose of determining compliance with this Act. The audit and inspection may be carried out by a non-Department or nongovernment entity, as approved by the Secretary. (B) Reporting structure Any audit or inspection conducted by an individual employed by a nongovernment entity shall be assigned in coordination with the head of audits and inspections for the region in which the audit or inspection is to be conducted. When in the field, any individual employed by a nongovernment entity shall report to the respective head of audits and inspections for the region in which the individual is operating. (C) Requirements for nongovernment personnel If the Secretary arranges for an audit or inspection under subparagraph (A) to be carried out by a nongovernment entity, the Secretary shall require, as a condition of such arrangement, that any individual who conducts the audit or inspection be a citizen of the United States and shall prescribe standards for the qualification of the individuals who carry out such audits and inspections that are commensurate with the standards for a Government auditor or inspector. Such standards shall include— (i) minimum training requirements for new auditors or inspectors; (ii) retraining requirements; (iii) minimum education and experience levels; (iv) the submission of information as required by the Secretary to enable determination of whether the auditor or inspector has a conflict of interest; (v) the maintenance of a secret security clearance; (vi) reporting any issue of non-compliance with this section to the Secretary within 24 hours; and (vii) any additional qualifications for fitness of duty as the Secretary may establish. (D) Training of Department auditors and inspectors The Secretary shall prescribe standards for the training and retraining of individuals employed by the Department as auditors and inspectors. Such standards shall include— (i) minimum training requirements for new auditors and inspectors; (ii) retraining requirements; and (iii) any additional requirements the Secretary may establish. (2) Notice of noncompliance (A) Notice If the Secretary determines that a covered chemical facility or a chemical facility of interest is not in compliance with this section, the Secretary shall— (i) provide the owner or operator of the facility with— (I) written notification (including a clear explanation of any deficiency in the security vulnerability assessment or site security plan) by not later than 14 days after the determination is made; and (II) an opportunity for consultation with the Secretary or the Secretary’s designee; and (ii) issue an order to comply by such date as the Secretary determines to be appropriate under the circumstances. (B) Continued noncompliance If the owner or operator continues to be in noncompliance after the date specified in such order, the Secretary may enter an order assessing a civil penalty, an order to cease operations, or both. (3) Personnel surety (A) Personnel surety program For purposes of this title, the Secretary shall carry out a Personnel Surety Program that— (i) does not require an owner or operator of a covered chemical facility that voluntarily participates to submit information about an individual more than one time; (ii) provides a participating owner or operator of a covered chemical facility with feedback about an individual based on vetting the individual against the terrorist screening database, to the extent that such feedback is necessary for the facility’s compliance with regulations promulgated under this title; and (iii) provides redress to an individual whose information was vetted against the terrorist screening database under the program and who believes that the personally identifiable information submitted to the Department for such vetting by a covered chemical facility, or its designated representative, was inaccurate. (B) Personnel surety implementation To the extent that a risk-based performance standard under subsection (a) is directed toward identifying individuals with terrorist ties— (i) a covered chemical facility may satisfy its obligation under such standard with respect to an individual by utilizing any Federal screening program that periodically vets individuals against the terrorist screening database, or any successor, including the Personnel Surety Program under subparagraph (A); and (ii) the Secretary may not require a covered chemical facility to submit any information about such individual unless the individual— (I) is vetted under the Personnel Surety Program; or (II) has been identified as presenting a terrorism security risk. (C) Responsibilities of Security Screening Coordination Office (i) In general The Secretary shall direct the Security Screening Coordination Office of the Department to coordinate with the National Protection and Programs Directorate to expedite the development of a common credential that screens against the terrorist screening database on a recurrent basis and meets all other screening requirements of this title. (ii) Report Not later than March 1, 2015, and annually thereafter, the Secretary shall submit to Congress a report on the progress of the Secretary in meeting the requirements of clause (i). (4) Facility access For purposes of the compliance of a covered chemical facility with a risk-based performance standard established under subsection (a), the Secretary may not require the facility to submit any information about an individual who has been granted access to the facility unless the individual— (A) was vetted under the Personnel Surety Program; or (B) has been identified as presenting a terrorism security risk. (5) Availability of information The Secretary shall share with the owner or operator of a covered chemical facility such information as the owner or operator needs to comply with this section. (e) Responsibilities of the Secretary (1) Identification of facilities of interest In carrying out this title, the Secretary shall consult with the heads of other Federal agencies, States and political subdivisions thereof, and relevant business associations to identify all chemical facilities of interest. (2) Risk assessment (A) In general For purposes of this title, the Secretary shall develop a risk assessment approach and corresponding tiering methodology that incorporates all relevant elements of risk, including threat, vulnerability, and consequence. (B) Criteria for determining security risk The criteria for determining the security risk of terrorism associated with a facility shall include— (i) the relevant threat information; (ii) the potential economic consequences and the potential loss of human life in the event of the facility being subject to a terrorist attack, compromise, infiltration, or exploitation; and (iii) the vulnerability of the facility to a terrorist attack, compromise, infiltration, or exploitation. (3) Changes in tiering Any time that tiering for a covered chemical facility is changed and the facility is determined to no longer be subject to the requirements of this title, the Secretary shall maintain records to reflect the basis for this determination. The records shall include information on whether and how the information that was the basis for the determination was confirmed by the Secretary. (f) Definitions In this title: (1) The term covered chemical facility means a facility that the Secretary identifies as a chemical facility of interest and, based upon review of a Top-Screen, as such term is defined in section 27.105 of title 6 of Code of Federal Regulations, determines meets the risk criteria developed pursuant subsection (e)(2)(B). Such term does not include any of the following: (A) A facility regulated pursuant to the Maritime Transportation Security Act of 2002 (Public Law 107–295). (B) A Public Water System, as such term is defined by section 1401 of the Safe Drinking Water Act (Public Law 93–523; 42 U.S.C. 300f). (C) A Treatment Works, as such term is defined in section 212 of the Federal Water Pollution Control Act (Public Law 92–500; 33 U.S.C. 12920). (D) Any facility owned or operated by the Department of Defense or the Department of Energy. (E) Any facility subject to regulation by the Nuclear Regulatory Commission. (2) The term chemical facility of interest means a facility that holds, or that the Secretary has a reasonable basis to believe holds, a Chemical of Interest, as designated under in Appendix A of title 6 of the Code of Federal Regulations, at a threshold quantity that meets relevant risk-related criteria developed pursuant to subsection (e)(2)(B). 2102. Protection and sharing of information (a) In general Notwithstanding any other provision of law, information developed pursuant to this title, including vulnerability assessments, site security plans, and other security related information, records, and documents shall be given protections from public disclosure consistent with similar information developed by chemical facilities subject to regulation under section 70103 of title 46, United States Code. (b) Sharing of information with States and local governments This section does not prohibit the sharing of information developed pursuant to this title, as the Secretary deems appropriate, with State and local government officials possessing the necessary security clearances, including law enforcement officials and first responders, for the purpose of carrying out this title, if such information may not be disclosed pursuant to any State or local law. (c) Sharing of information with first responders The Secretary shall provide to State, local, and regional fusion centers (as such term is defined in section 210A(j)(1) of this Act) and State and local government officials, as determined appropriate by the Secretary, such information as is necessary to help ensure that first responders are properly prepared and provided with the situational awareness needed to respond to incidents at covered chemical facilities. Such information shall be disseminated through the Homeland Security Information Network or the Homeland Secure Data Network, as appropriate. (d) Enforcement proceedings In any proceeding to enforce this section, vulnerability assessments, site security plans, and other information submitted to or obtained by the Secretary under this section, and related vulnerability or security information, shall be treated as if the information were classified material. 2103. Civil penalties (a) Violations Any person who violates an order issued under this title shall be liable for a civil penalty under section 70119(a) of title 46, United States Code. (b) Right of action Nothing in this title confers upon any person except the Secretary a right of action against an owner or operator of a covered chemical facility to enforce any provision of this title. 2104. Whistleblower protections The Secretary shall publish on the Internet website of the Department and in other materials made available to the public the whistleblower protections that an individual providing such information would have. 2105. Relationship to other laws (a) Other Federal laws Nothing in this title shall be construed to supersede, amend, alter, or affect any Federal law that regulates the manufacture, distribution in commerce, use, sale, other treatment, or disposal of chemical substances or mixtures. (b) States and political subdivisions This title shall not preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to chemical facility security that is more stringent than a regulation, requirement, or standard of performance issued under this section, or otherwise impair any right or jurisdiction of any State with respect to chemical facilities within that State, unless there is an actual conflict between this section and the law of that State. (c) Rail transit (1) Duplicative regulations The Secretary shall coordinate with the Assistant Secretary of Homeland Security (Transportation Security Administration) to eliminate any provision of this title applicable to rail security that would duplicate any security measure under the Rail Transportation Security Rule under section 1580 of title 49 of the Code of Federal Regulations, as in effect as of the date of the enactment of this title. To the extent that there is a conflict between this title and any regulation under the jurisdiction of the Transportation Security Administration, the regulation under the jurisdiction of the Transportation Security Administration shall prevail. (2) Exemption from Top-Screen A rail transit facility or a rail facility, as such terms are defined in section 1580.3 of title 49 of the Code of Federal Regulations, to which subpart 3 of such title applies pursuant to section 1580.100 of such title shall not be required to complete a Top-Screen as such term is defined in section 27.105 of title 6 of the Code of Federal Regulations. 2106. Reports (a) Report to Congress Not later than 18 months after the date of the enactment of this title, the Secretary shall submit to Congress a report on the Chemical Facilities Anti-Terrorism Standards Program. Such report shall include each of the following: (1) Certification by the Secretary that the Secretary has made significant progress in the identification of all chemical facilities of interest pursuant to section 2101(e)(1), including a description of the steps taken to achieve such progress and the metrics used to measure it, information on whether facilities that submitted Top-Screens as a result of such efforts were tiered and in what tiers they were placed, and an action plan to better identify chemical facilities of interest and bring those facilities into compliance. (2) Certification by the Secretary that the Secretary has developed a risk assessment approach and corresponding tiering methodology pursuant to section 2101(e)(2). (3) An assessment by the Secretary of the implementation by the Department of any recommendations made by the Homeland Security Studies and Analysis Institute as outlined in the Institute’s Tiering Methodology Peer Review (Publication Number: RP12–22–02). (b) Semiannual GAO report During the 3-year period beginning on the date of the enactment of this title, the Comptroller General of the United States shall submit a semiannual report to Congress containing the assessment of the Comptroller General of the implementation of this title. The Comptroller General shall submit the first such report by not later than the date that is 180 days after the date of the enactment of this title. 2107. CFATS regulations (a) In general The Secretary is authorized, in accordance with chapter 5 of title 5, United States Code, to promulgate regulations implementing the provisions of this title. (b) Existing CFATS regulations In carrying out the requirements of this title, the Secretary shall use the CFATS regulations, as in effect immediately before the date of the enactment of this title, that the Secretary determines carry out such requirements, and may issue new regulations or amend such regulations pursuant to the authority in subsection (a). (c) Definition of CFATS regulations In this section, the term CFATS regulations means the regulations prescribed pursuant to section 550 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 120 Stat. 1388; 6 U.S.C. 121 note), as well as all Federal Register notices and other published guidance concerning section 550 of the Department of Homeland Security Appropriations Act, 2007. (d) Authority The Secretary shall exclusively rely upon authority provided in this title for determining compliance with this title in— (1) identifying chemicals of interest; (2) designating chemicals of interest; and (3) determining security risk associated with a chemical facility. 2108. Small covered chemical facilities (a) In general The Secretary may provide guidance and, as appropriate, tools, methodologies, or computer software, to assist small covered chemical facilities in developing their physical security. (b) Report The Secretary shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report on best practices that may assist small chemical facilities, as defined by the Secretary, in development of physical security best practices. (c) Definition For purposes of this section, the term small covered chemical facility means a covered chemical facility that has fewer than 350 employees employed at the covered chemical facility, and is not a branch or subsidiary of another entity. 2109. Outreach to chemical facilities of interest Not later than 90 days after the date of the enactment of this title, the Secretary shall establish an outreach implementation plan, in coordination with the heads of other appropriate Federal and State agencies and relevant business associations, to identify chemical facilities of interest and make available compliance assistance materials and information on education and training. 2110. Authorization of appropriations There is authorized to be appropriated to carry out this title $81,000,000 for each of fiscal years 2015, 2016, and 2017. . (b) Clerical amendment The table of contents in section 1(b) of such Act is amended by adding at the end the following: TITLE XXI—CHEMICAL FACILITY ANTI–TERRORISM STANDARDS Sec. 2101. Chemical Facility Anti-Terrorism Standards Program. Sec. 2102. Protection and sharing of information. Sec. 2103. Civil penalties. Sec. 2104. Whistleblower protections. Sec. 2105. Relationship to other laws. Sec. 2106. Reports. Sec. 2107. CFATS regulations. Sec. 2108. Small covered chemical facilities. Sec. 2109. Outreach to chemical facilities of interest. Sec. 2110. Authorization of appropriations. . (c) Third-party assessment Using amounts authorized to be appropriated under section 2110 of the Homeland Security Act of 2002, as added by subsection (a), the Secretary of Homeland Security shall commission a third-party study to assess vulnerabilities to acts of terrorism associated with the Chemical Facility Anti-Terrorism Standards program, as authorized pursuant to section 550 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 120 Stat. 1388; 6 U.S.C. 121 note). (d) Metrics Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit to Congress a plan for the utilization of metrics to assess the effectiveness of the Chemical Facility Anti-Terrorism Standards program to reduce the risk of a terrorist attack or other security risk to those citizens and communities surrounding covered chemical facilities. The plan shall include benchmarks on when the program will begin utilizing the metrics and how the Department of Homeland Security plans to use the information to inform the program. 3. Effective date This Act, and the amendments made by this Act, shall take effect on the date that is 30 days after the date of the enactment of this Act. Passed the House of Representatives July 8, 2014.Karen L. Haas,Clerk