[Senate Report 112-90]
[From the U.S. Government Publishing Office]
112th Congress
SENATE
Report
1st Session 112-90
_______________________________________________________________________
Calendar No. 194
CONTINUING CHEMICAL FACILITIES ANTITERRORISM SECURITY ACT OF 2011
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 473
TO EXTEND THE CHEMICAL FACILITY SECURITY PROGRAM OF THE DEPARTMENT OF
HOMELAND SECURITY, AND FOR OTHER PURPOSES
October 20, 2011.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska JERRY MORAN, Kansas
Michael L. Alexander, Staff Director
Beth M. Grossman, Deputy Staff Director and Chief Counsel
Holly A. Idelson, Senior Counsel
Nicholas A. Rossi, Minority Staff Director
Molly A. Wilkinson, Minority General Counsel
Denise E. Zheng, Professional Staff Member
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 194
112th Congress
SENATE
Report
1st Session 112-90
======================================================================
CONTINUING CHEMICAL FACILITIES ANTITERRORISM SECURITY ACT OF 2011
_______
October 20, 2011.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 473]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 473) to extend the
chemical facility security program of the Department of
Homeland Security, and for other purposes, having considered
the same, reports favorably thereon with amendments and
recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary.............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History.............................................3
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................5
VI. Congressional Budget Office Cost Estimate........................5
VII. Changes to Existing Law Made by the Bill, as Reported...........8
I. Purpose and Summary
The purpose of S. 473 is to reauthorize the Department of
Homeland Security's Chemical Facility Anti-Terrorism Standards
(CFATS), which regulates security at high-risk facilities that
make or use hazardous chemicals. Thousands of such facilities
exist in the United States, and a successful terrorist attack
on any of them could cause extensive harm. The CFATS program
requires these high-risk facilities to design and implement
site security plans to deter or prevent such attacks, and to
respond more effectively if an attack does occur. As reported
by the Committee, S. 473 would extend the program until October
4, 2014, and add several voluntary features to the program.
II. Background and Need for Legislation
In the aftermath of the September 11, 2001 terrorist
attacks, security experts and policymakers focused on the
potential threat posed by thousands of facilities that make or
use hazardous chemicals. A myriad of civic and industrial
operations--including water purification, pharmaceutical
production, oil refining and more--incorporate hazardous
chemicals into their activities. Many of these facilities
already faced environmental and safety regulations, but prior
to the CFATS program they did not face any federal security
program aimed at preventing and deterring a deliberate attack
seeking to exploit the toxicity of such chemicals. Various
expert reports and planning scenarios estimate that tens of
thousands of people could be killed or hurt by a successful
attack on certain high-risk chemical facilities.
Early legislative proposals to regulate chemical site
security did not advance in the years immediately following the
9/11 attacks.
In the 109th Congress, this Committee held numerous
hearings on chemical site security that underscored the need
for a federal program.\1\ Witnesses from the Bush
Administration, the U.S. Chemical Safety and Hazard
Investigation Board, the Government Accountability Office and
elsewhere testified that chemical facilities present unique and
potentially devastating security risks, and that voluntary
efforts to secure them were not sufficient.\2\ In 2006, the
Committee approved a bill, S. 2145 (S. Rept. 109-332) to create
a chemical site security program at the Department of Homeland
Security (DHS).\3\ While that particular bill was not
considered by the full Senate, Congress later that year
included an authorization for a DHS-led chemical security
program in the Fiscal Year 2007 appropriations bill for the
Department of Homeland Security.\4\ DHS issued rules for the
program on April 9, 2007, which became effective on June 9,
2007, and the program has remained underway since.\5\
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\1\Chemical Attack on America: How Vulnerable Are We? Hearing
Before the Senate Comm. On Homeland Security and Governmental Affairs,
S.Hrg. 109-62; Is the Federal Government Doing Enough to Secure
Chemical Facilities and Is More Authority Needed? Hearing Before the
Senate Comm. On Homeland Security and Governmental Affairs, S. Hrg.
109-175; Chemical Facility Security: What is the Appropriate Federal
Role? Hearing before the Senate Comm. On Homeland Security and
Governmental Affairs, Parts I and II (S.Hrg. 109-382).
\2\S. Rept. 109-332, Report of the Committee on Homeland Security
and Governmental Affairs of the United States Senate to Accompany S.
2145, pp.7-17.
\3\S. 2145 was introduced by Sens. Collins and Lieberman, with
original cosponsors Sens. Coleman, Carper and Levin.
\4\The Homeland Security Appropriations Act, 2007, P.L. 109-295,
Section 550 (6 U.S.C. 121 note)
\5\6 CFR Part 27 (April 9, 2007).
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That program, known as the Chemical Facility Anti-terrorism
Standards or CFATS, is underway. The original authorization
included a 3-year sunset that would have terminated the program
on October 4, 2009. The program has since been extended on a
series of appropriations bills.\6\ President Obama has
requested additional one- and two-year extensions in his budget
requests for Fiscal Year 2011 and Fiscal Year 2012,
respectively.\7\
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\6\The Department of Homeland Security Appropriations Act, 2010,
P.L. 111-83, Section 550. A bill making continuing appropriations for
portions of Fiscal Year 2011 further extended CFATS until December 3,
2010. Continuing Appropriations Act, 2011, P.L. 111-242, Section 124. A
second bill making continuing appropriations for Fiscal Year 2011
extended the program until December 18, 2010. P.L. 111-290. A third
bill making continuing appropriations for Fiscal Year 2011 extended the
program until December 21, 2010. P.L. 111-317. A fourth bill making
continuing appropriations for Fiscal Year 2011 extended the program
until March 4, 2011. P.L. 111-322. A fifth bill making continuing
appropriations for Fiscal Year 2011 extended the program until March
18, 2011. P.L. 112-4. A sixth bill making continuing appropriations for
Fiscal Year 2011 extended the program until April 8, 2011. P.L. 112-6.
A seventh bill making continuing appropriations for Fiscal Year 2011
extended the program until April 15, 2011. P.L. 112-8. An eighth bill
making continuing appropriations for Fiscal Year 2011 extended the
program until September 30, 2011. P.L. 112-10. A bill making continuing
appropriations for Fiscal Year 2012 extended the program until October
4, 2011. P.L. 112-33. A second bill making continuing appropriations
for Fiscal Year 2012 has extended the program until November 18, 2011.
P.L. 112-36.
\7\The Budget of the United States Government, Fiscal Year 2011,
Appendix, p.574. The Budget of the United States Government, Fiscal
Year 2012, Appendix, p. 533 and p. 553.
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The CFATS program generally applies to any facility that
possesses more than a threshold volume and concentration of
certain dangerous chemicals. More than 40,000 facilities have
completed ``Top Screen'' assessments to determine whether they
fall under the program, and more than 7,000 have been
preliminarily ``screened into'' the program by DHS.\8\ These
facilities are reviewed for assignment to one of four risk
tiers, with facilities in the riskiest tiers required to meet
the most strenuous security requirements. As of October 2011,
nearly 4,000 high-risk facilities had received final tiering
decisions under the CFATS program.
---------------------------------------------------------------------------
\8\According to data supplied by DHS, hundreds of those facilities
were subsequently able to ``tier out'' of the program due to
clarifications in their submissions or voluntary modifications in their
operations.
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While extensions of the sunset provision are sufficient to
keep the CFATS program going, there is widespread interest,
including within industry, in a permanent or more long-term
authorization to add predictability and stability to the
program. Some lawmakers and advocates would also like to expand
or revise the existing program in certain respects.
During a business meeting on June 29, 2011, the Committee
considered and voted to report S. 473. The bill effectively
would preserve the existing CFATS program, subject to any
future adjustments DHS might implement through regulations or
other directives consistent with the existing statutory
authorization in Section 550 of P.L. 109-295. The legislation
also would add new provisions to enhance implementation of the
existing program. S. 473 would create voluntary exercise and
training programs to improve collaboration with the private
sector and State and local officials. It would create a
voluntary technical assistance program to allow DHS, at the
request of an owner or operator of a covered facility, to
provide non-binding assistance or recommendations on CFATS
compliance or to otherwise reduce the risk or consequences of a
potential attack on the facility. The Secretary also would be
directed to establish a program to collect information on best
practices and cost-effective technologies for implementing
CFATS and the voluntary technical assistance program, and to
voluntarily share such information with covered facilities,
consistent with certain protections for sensitive or
proprietary data. The bill would also create an advisory board
to help DHS implement the voluntary technical assistance
program and the CFATS program generally.
III. Legislative History
S. 473 was introduced on March 3, 2011, by Senator Collins
with Senators Pryor, Portman and Landrieu. The Committee
considered S. 473 at its June 29, 2011, business meeting.
Members adopted a technical amendment offered by Senator
Collins, to correct certain dates in the bill, by voice vote.
The bill as amended was then adopted 8-2, with Senators
Lieberman, Carper, Pryor, Begich, Collins, Brown, Portman and
Moran voting Yea and Senators Akaka and Coburn voting Nay. For
the record only, Senators Levin, Landrieu, McCaskill, Tester
and McCain voted Yea by proxy and Senators Johnson and Paul
voted Nay by proxy.
IV. Section-by-Section Analysis
Section 1. Short title
This section names the Act the ``Continuing Chemical
Facilities Antiterrorism Security Act of 2010.''
Section 2. Extension of Chemical Facilities Security Program
(a) This subsection extends the authorization for the
Chemical Facilities Anti-Terrorism Standards, Section 550(b) of
Homeland Security Appropriations Act, 2007 (6 U.S.C. 121 note),
for three years until October 4, 2014.
(b) This subsection includes several enhancements to the
existing CFATS program, which would expire when the underlying
Section 550(b) authorities lapse: a voluntary chemical security
training program; a voluntary chemical security exercise
program; a voluntary technical assistance program; and creation
of an advisory board to help implement the technical assistance
program.
Voluntary Chemical Security Training Program--The
legislation would direct the Administrator of the Federal
Emergency Management Agency (FEMA), in coordination with the
DHS Under Secretary for National Protection and Programs
(NPPD), to establish a voluntary training program to enhance
the capabilities of high-risk chemical facilities to prevent,
prepare for, respond to, mitigate against, and recover from
threatened or actual acts of terrorism, and natural and man-
made disasters. The program should encompass governmental and
private sector entities across multiple disciplines, and should
be coordinated with training offered by other institutions.
Voluntary Chemical Security Exercise Program--The
legislation also directs FEMA, in coordination with NPPD, to
establish a voluntary exercise program to test and evaluate the
capabilities of governmental and private sector entities to
prevent, prepare for, mitigate against, respond to, and recover
from an attack or disaster at facilities using hazardous
chemicals. The program should include live exercises for high
risk facilities, and should be assessed to establish best
practices that can be shared with affected stakeholders.
Voluntary Technical Assistance Program--The legislation
would direct the DHS Assistant Secretary for Infrastructure
Protection, in coordination with the Under Secretary for
Science and Technology, to create a voluntary technical
assistance program to provide non-binding assistance or
recommendations to facilities on measures to reduce the risk of
or consequences from a potential attack on the facility, such
as employing safer chemicals or processes. The program would
receive at least $5 million annually, to be drawn from the
overall CFATS appropriation.
Advisory Board--The legislation would direct the Secretary
of Homeland Security to establish a nine-member Chemical
Facility Security Advisory Board to advise the Department on
implementation of the CFATS program, including the voluntary
technical assistance program created by this section. The board
must include at least five owners or operators of a covered
facility, at least two employees of such facilities, and two
additional experts in the fields of chemistry, security,
process design and engineering, and other related fields. This
board would be established under section 871 of the Homeland
Security Act, and would be subject to the Federal Advisory
Committee Act (5 U.S.C. App.).
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. As indicated in
the Congressional Budget Office cost estimate for this bill
(included below), the bill as amended would extend an existing
regulatory program with few changes and should not result in
significant additional costs beyond the current costs of
complying with the CFATS program.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 29, 2011.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 473, the Continuing
Chemical Facilities Antiterrorism Security Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Jason
Wheelock and Daniel Hoople.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 473--Continuing Chemical Facilities Antiterrorism Security Act of
2011
Summary: S. 473 would extend through fiscal year 2014 the
Department of Homeland Security's (DHS's) authority to regulate
security at certain chemical facilities in the United States.
Under this authority, which is set to expire in October of
2011, DHS operates the Chemical Facility Anti-Terrorism
Standards (CFATS) program. The bill also would establish a
technical assistance program to assist chemical facilities in
complying with CFATS. Lastly, the bill would direct the Federal
Emergency Management Agency (FEMA) to establish a training
program and conduct exercises aimed at testing the ability of
first responders and other entities to prevent and respond to
acts of terrorism and natural disaster at chemical facilities.
CBO estimates that implementing S. 473 would cost about
$330 million over the 2012-2016 period, assuming appropriation
of the specified and estimated amounts.
S. 473 could result in the collection of additional civil
penalties, which are recorded as revenues and deposited in the
U.S. Treasury; therefore, pay-as-you-go procedures apply.
However, CBO estimates that such collections would be minimal
and the effect on revenues would be insignificant. Enacting the
bill would not affect direct spending.
S. 473 would extend intergovernmental and private-sector
mandates, as defined in the Unfunded Mandates Reform Act
(UMRA), on owners of public and private facilities where
certain chemicals are present. Based on information from DHS
and industry sources, CBO estimates that the aggregate cost of
complying with the mandates would be small and fall below the
annual thresholds established in UMRA for intergovernmental and
private-sector mandates ($71 million and $142 million,
respectively, in 2011, adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 473 is shown in the following table. The
costs of this legislation fall within budget functions 050
(national defense) and 450 (community and regional
development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------
2012 2013 2014 2015 2016 2012-2016
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Chemical Facility Antiterrorism Standards Program:
Estimated Authorization Level....................... 91 92 94 0 0 277
Estimated Outlays................................... 32 64 88 58 25 267
FEMA Chemical Security Programs:
Estimated Authorization Level....................... 15 15 15 0 0 45
Estimated Outlays................................... 9 15 15 6 0 45
Voluntary Technical Assistance Program:
Authorization Level................................. 5 5 5 0 0 15
Estimated Outlays................................... 2 4 5 3 1 15
Total Changes:
Estimated Authorization Level....................... 111 112 114 0 0 337
Estimated Outlays................................... 43 83 108 67 26 327
----------------------------------------------------------------------------------------------------------------
Note: FEMA = Federal Emergency Management Agency.
Basis of estimate: For the purposes of this estimate, CBO
assumes that the bill will be enacted near the start of fiscal
year 2012, that the necessary amounts will be appropriated each
year, and that outlays will follow historical patterns for
existing and similar programs.
Chemical Facility Antiterrorism Standards Program
Section 2 would extend for three years DHS's authority
under CFATS to regulate security at certain chemical facilities
in the United States. Through CFATS, DHS collects and reviews
information from chemical facilities in the United States to
determine which facilities present a security risk. Facilities
determined to present a high level of security risk are then
required to develop a Site Security Plan (SSP). DHS in turn
conducts inspections to validate the adequacy of facilities'
SSPs and their compliance with them.
In 2011, DHS received approximately $90 million in
appropriations for activities related to CFATS, with
approximately $30 million for salaries and benefits of federal
employees and about $60 million for program expenses. Based on
this information, and after accounting for inflation, CBO
anticipates that the program would require appropriations of
$91 million in 2012 and a total of $277 million over the 2012-
2014 period. Assuming appropriation of those amounts, CBO
estimates that implementing this provision would cost $267
million over the 2012-2016 period.
FEMA Chemical Security Programs
S. 473 would establish training and exercise programs
within FEMA to improve and evaluate the capabilities of public
and private entities to prevent, prepare for, respond to, and
recover from a natural or man-made disaster or other emergency
at a chemical facility. Under the bill, participation in both
programs would be voluntary and periodic exercises would be
directed at the highest-risk facilities. Assuming about 10
exercises per year and based on historical expenditures for
similar preparedness programs, CBO estimates that those
provisions would cost $45 million over the 2012-2016 period.
Voluntary Technical Assistance Program
S. 473 would establish a technical assistance program
through which DHS would provide assistance and recommendations
to chemical facilities to enable such facilities to reduce the
risk of and consequences from acts of terrorism. As part of the
program, DHS would be required to develop a repository of
information on effective practices for complying with CFATS.
The bill would authorize the appropriation of $5 million
annually from 2012 to 2014. As a result, CBO estimates that
implementing the program would cost $15 million over the 2012-
2016 period.
Chemical Facility Advisory Board
The bill would require that the Secretary of DHS establish
a Chemical Facility Advisory Board. The board would consist of
nine members, five of whom would be owners or operators of
covered chemical facilities, two of whom would be employees of
such facilities, and two of whom would be experts on topics
related to the security of chemical facilities. The board,
which would be authorized through fiscal year 2014, would
advise the Secretary of DHS on the implementation of CFATS as
well as the voluntary technical assistance program that would
be established under S. 473. Based on the cost of other DHS
advisory bodies, CBO estimates that implementing this provision
would cost less than $500,000 over the 2012-2016 period.
Pay-As-You-Go considerations: The Statutory-Pay-As-You-Go-
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. Enacting S. 473 could result in the collection of
additional civil penalties, which are recorded as revenues and
deposited in the U.S. Treasury. However, CBO estimates that
such collections would be minimal and the effect on revenues
would be insignificant. Enacting the bill would not affect
direct spending.
Intergovernmental and private-sector impact: S. 473 would
extend intergovernmental and private-sector mandates, as
defined in UMRA, on owners and operators of public and private
facilities where certain chemicals are present. Requirements on
those owners and operators to assess the vulnerability of their
facilities and to prepare and implement security plans would be
mandates. The bill also would extend mandates that require
owners and operators of such facilities to maintain records,
periodically submit reviews of the adequacy of the
vulnerability assessments or facility security plans, and allow
DHS access to their property for inspections and verifications.
In addition, owners and operators would have to continue to
conduct background checks on employees who have access to
restricted areas, and provide training to employees. Based on
information from DHS and industry sources, CBO estimates that
the aggregate costs of complying with the mandates would be
small and would fall below the annual thresholds established in
UMRA for intergovernmental and private-sector mandates. ($71
million and $142 million, respectively, in 2011, adjusted
annually for inflation).
Previous CBO estimates: On July 6, 2011, CBO transmitted a
cost estimate for H.R. 901, the Chemical Facility Anti-
Terrorism Standards Act of 2011, as ordered reported by the
House Committee on Homeland Security on June 22, 2011. CBO
determined that H.R. 901 would extend the same mandates as S.
473.
On June 15, 2011, CBO transmitted a cost estimate for H.R.
908, the Full Implementation of the Chemical Facility Anti-
Terrorism Standards Act, as ordered reported by the House
Committee on Energy and Commerce on May 26, 2011. CBO
determined that H.R. 908 would extend the same mandates as S.
473.
CBO also determined that section 2(a) of S. 473 is similar
to provisions of H.R. 901 and H.R. 908. The difference in
estimated costs between the House and Senate provisions is
primarily because of the difference in length of the
authorizations.
Estimate prepared by: Federal costs: Jason Wheelock (CFATS)
and Daniel Hoople (FEMA); Impact on state, local, and tribal
governments: Melissa Merrell; Impact on the private sector:
Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
VII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
H.R. 2868 as reported are shown as follows (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
TITLE 6--DOMESTIC SECURITY
CHAPTER 1--HOMELAND SECURITY ORGANIZATION
* * * * * * *
Subchapter II--Information Analysis and Infrastructure Protection
PART A--INFORMATION AND ANALYSIS AND INFRASTRUCTURE PROTECTION; ACCESS
TO INFORMATION
SEC. 121. INFORMATION AND ANALYSIS AND INFRASTRUCTURE PROTECTION
* * * * * * *
REGULATIONS
Pub. L. 109-295, title V, Sec. 550, Oct. 4, 2006, 120 Stat.
1388, as amended by Pub. L. 110-161, div. E, title V, Sec. 534,
Dec. 26, 2007, 121 Stat. 2075; Pub. L. 111-83, title V, Sec.
550, Oct. 28, 2009, 123 Stat. 2177, provided that:
``(a) * * *
``(b) Interim regulations issued under this section shall
apply until the effective date of interim or final regulations
promulgated under other laws that establish requirements and
standards referred to in subsection (a) and expressly supersede
this section: Provided, That the authority provided by this
section shall terminate on [October 4, 2011] October 4, 2014.
* * * * * * *
TITLE XXI--CHEMICAL FACILITY SECURITY
``SEC. 2101. DEFINITIONS.
``In this title--
``(1) the term `Board' means the Chemical Facility
Security Advisory Board established under section
2105(a);
``(2) the term `Chemical Facility Anti-Terrorism
Standards' means the interim final regulations issued
by the Secretary under section 550 of the Department of
Homeland Security Appropriations Act, 2007 (6 U.S.C.
121 note); and
``(3) the term `covered chemical facility' means a
chemical facility subject to the Chemical Facility
Anti-Terrorism Standards.
``SEC. 2102. CHEMICAL SECURITY TRAINING PROGRAM.
``(a) Establishment.--Acting through the Administrator of
the Federal Emergency Management Agency and in coordination
with the Under Secretary for National Protection and Programs,
the Secretary shall establish a voluntary chemical security
training program (referred to in this section as the `training
program') for the purpose of enhancing the capabilities of
high-risk chemical facilities to prevent, prepare for, respond
to, mitigate against, and recover from threatened or actual
acts of terrorism, natural disasters, and other man-made
disasters.
``(b) Requirements.--The training program shall provide
validated voluntary training that--
``(1) reaches multiple disciplines, including
Federal, State, and local government officials,
commercial personnel and management, and governmental
and nongovernmental emergency response providers;
``(2) provides training at the awareness,
performance, and management and planning levels;
``(3) uses multiple training mediums and methods;
``(4) is coordinated with training provided by
government training facilities, academic institutions,
private organizations, and other entities that provide
specialized, state-of-the-art training for governmental
and nongovernmental emergency responder providers or
commercial personnel and management;
``(5) uses, as appropriate, government training
facilities, courses provided by community colleges,
public safety academies, State and private
universities, and other facilities;
``(6) is consistent with, and supports implementation
of, the National Incident Management System, the
National Response Framework, the National
Infrastructure Protection Plan, the National
Preparedness Guidance, the National Preparedness Goal,
the National Maritime Transportation Security Plan, and
other such national initiatives, and any successors
thereto;
``(7) is evaluated against clear and consistent
performance measures;
``(8) addresses security requirements under chemical
facility security plans; and
``(9) educates, trains, and involves individuals in
neighborhoods around chemical facilities on how to
observe and report security risks.
``SEC. 2103. CHEMICAL SECURITY EXERCISE PROGRAM.
``(a) In General.--Acting through the Administrator of the
Federal Emergency Management Agency and in coordination with
Under Secretary for National Protection and Programs, the
Secretary shall develop a voluntary chemical security exercise
program (referred to in this section as the `exercise program')
for the purpose of offering voluntary testing and evaluation of
the capabilities of the Federal Government, State governments,
commercial personnel and management, governmental and
nongovernmental emergency response providers, the private
sector, or any other organization or entity, as the Secretary
determines to be appropriate, to prevent, prepare for, mitigate
against, respond to, and recover from acts of terrorism,
natural disasters, and other emergencies at chemical
facilities.
``(b) Requirements.--Under the exercise program, the
Secretary shall conduct, on a periodic basis, voluntary joint
security exercises at chemical facilities that are--
``(1) scaled and tailored to the needs of each
chemical facility;
``(2) for the highest risk chemical facilities, as
determined by the Secretary, live training exercises;
``(3) as realistic as practicable and based on
current risk assessments, including credible threats,
vulnerabilities, and consequences;
``(4) consistent with the National Incident
Management System, the National Response Framework, the
National Infrastructure Protection Plan, the National
Preparedness Guidance, the National Preparedness Goal,
the National Maritime Transportation Security Plan, and
other such national initiatives, and any successors
thereto;
``(5) evaluated against clear and consistent
performance measures;
``(6) assessed to learn best practices, which shall
be shared with appropriate Federal, State, and local
officials, commercial personnel and management,
governmental and nongovernmental emergency response
providers, and the private sector;
``(7) followed by remedial action in response to
lessons learned; and
``(8) designed to assist State and local governments
and chemical facilities in designing, implementing, and
evaluating exercises that--
``(A) conform to the requirements of this
paragraph; and
``(B) are consistent with any applicable
Buffer Zone Protection Plan, State homeland
security plan, or urban area homeland security
plan.
``SEC. 2104. VOLUNTARY TECHNICAL ASSISTANCE PROGRAM.
``(a) Establishment.--The Secretary, acting through the
Assistant Secretary for Infrastructure Protection, in
coordination with the Under Secretary for Science and
Technology, and in consultation with the Board, shall establish
a voluntary technical assistance program under which, upon
request by the owner or operator of a covered chemical
facility, and subject to the availability of resources at the
Department, the Secretary may provide nonbinding assistance or
recommendations to the owner or operator to--
``(1) reduce the risk or consequences associated with
a successful act of terrorism against a covered
chemical facility, including the reduction of risk or
consequences--
``(A) sufficient to decrease the risk-based
tier assigned to the covered chemical facility
under the Chemical Facility Anti-Terrorism
Standards; or
``(B) such that the covered chemical facility
no longer presents a high level of security
risk; or
``(2) aid in compliance with the risk based
performance standards applicable to the covered
chemical facility under the Chemical Facility Anti-
Terrorism Standards.
``(b) Voluntary Nature of Assistance.--
``(1) In general.--The decision to--
``(A) participate in the voluntary technical
assistance program under this section; or
``(B) implement any assistance or
recommendations provided by the Secretary under
this section, shall be at the sole discretion
of the owner or operator of a covered chemical
facility.
``(2) No required assessment.--The Secretary may not
require the owner or operator of a covered chemical
facility to--
``(A) consider any assistance or
recommendation provided under this section as
part of a security vulnerability assessment
under the Chemical Facility Anti-Terrorism
Standards; or
``(B) assess, directly or indirectly, the
costs, benefits, economic or technical
feasibility, or practicality of implementing
any assistance or recommendation provided under
this section.
``(3) Site security plan review.--If the site
security plan for a covered chemical facility satisfies
the risk-based performance standards applicable to the
covered chemical facility under the Chemical Facility
Anti-Terrorism Standards, the Secretary may not
disapprove the site security plan based on--
``(A) a decision by the owner or operator of
a covered chemical facility not to--
``(i) participate in the voluntary
technical assistance program under this
section; or
``(ii) implement assistance or a
recommendation provided by the
Secretary under this section; or
``(B) the presence or absence of a particular
security measure.
``(4) Effect on tiering.--At the request of the owner
or operator of a covered chemical facility, the
Secretary shall advise the owner or operator of the
overall effect that implementing all categories of
assistance or recommendations provided by the Secretary
under this section would have on the determination by
the Secretary--
``(A) of the placement of the covered
chemical facility in a risk-based tier under
the Chemical Facility Anti-Terrorism Standards;
or
``(B) regarding whether the covered chemical
facility would no longer present a high level
of security risk.
``(5) Civil liability.--
``(A) In general.--Subject to subparagraph
(B), no action, or failure to act, by the owner
or operator of a covered chemical facility
relating to assistance or a recommendation
provided by the Secretary under this section
shall be interpreted, construed, implied, or
applied to create any liability or cause of
action for compensation for bodily injury, any
other injury, or property damage to any person
that may result from an act of terrorism or
incident at the covered chemical facility.
``(B) Additional or intervening acts or
omissions.--Subparagraph (A) shall not apply to
any injury or damage caused by any additional
or intervening act or omission of the owner or
operator of a covered chemical facility.
``(C) Rule of construction.--Except as
provided in this section, nothing in
subparagraph (A) shall be construed to abrogate
or limit any right, remedy, or authority that
the Federal Government, any State or local
government, or any entity or agency of the
Federal Government or a State or local
government may possess under any other
provision of law.
``(c) Best Practices.--Subject to subsection (d), the
Secretary shall develop a repository for information and data
on best practices and cost-effective technologies for
implementing the Chemical Facility Anti-Terrorism Standards and
the voluntary technical assistance program under this section.
``(d) Information Protection.--Any information obtained by
the Secretary under the voluntary technical assistance program
under this section or for purposes of subsection (c) shall--
``(1) to the extent that the information may reveal
vulnerabilities or other details of the security
capabilities of a covered chemical facility that may be
exploited by terrorists, be protected as chemical-
terrorism vulnerability information under the Chemical
Facility Anti-Terrorism Standards; and
``(2) to the extent that the information may reveal
trade secrets or commercial or financial information
that is not customarily in the public domain, be
protected as though the information was voluntarily
shared critical infrastructure information under
section 214, except that the requirement under section
214 that the information be voluntarily submitted,
including the requirement for an express statement
specified in section 214(a)(2), shall not apply to
information obtained under this section.
``(e) Report on Lessons Learned.--Not later than October 4,
2013, the Secretary, in coordination with the Board, shall
submit to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Homeland Security of
the House of Representatives a report regarding lessons learned
from the voluntary technical assistance program under this
section.
``(f) Availability of Appropriations.--Of the amounts made
available for the Chemical Facility Anti-Terrorism Standards
for each of fiscal years 2012 through 2014, not less than
$5,000,000 shall be made available for the provision of
voluntary technical assistance under this section.
``SEC. 2105. CHEMICAL FACILITY SECURITY ADVISORY BOARD.
``(a) Establishment.--Not later than 90 days after the date
of enactment of this section, the Secretary shall establish
under section 871 a Chemical Facility Security Advisory Board.
``(b) Responsibilities.--The Board shall advise the
Secretary on the implementation of the Chemical Facility Anti-
Terrorism Standards, including regarding the implementation of
the voluntary technical assistance program under section 2104.
``(c) Membership.--There shall be 9 members of the Board,
who shall be appointed by the Secretary and shall represent a
geographic and substantive cross-section of the United States,
including--
``(1) not less than 5 owners or operators of covered
chemical facilities;
``(2) not less than 2 employees of covered chemical
facilities with direct responsibility for process
design and engineering, production and operations, or
chemical process security, and
``(3) not less than 2 other experts in the fields of
chemistry, security, process design and engineering,
process controls and instrumentation, environmental
health and safety, maintenance, production and
operations, or chemical process security.
``(d) Term.--The members of the Board shall be appointed
for such terms as the Secretary may determine.
``(e) Applicability of Federal Advisory Committee Act.--The
Federal Advisory Committee Act (5 U.S.C. App.) shall apply to
the Board.
``SEC. 2106. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated to the Secretary
such sums as are necessary to carry out this title.''.