[Senate Report 111-370]
[From the U.S. Government Publishing Office]
Calendar No. 700
111th Congress
SENATE
Report
2d Session 111-370
======================================================================
CONTINUING CHEMICAL FACILITIES ANTITERRORISM SECURITY ACT OF 2010
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 2868
TO AMEND THE HOMELAND SECURITY ACT OF 2002 TO ENHANCE SECURITY AND
PROTECT AGAINST ACTS OF TERRORISM AGAINST CHEMICAL FACILITIES, TO AMEND
THE SAFE DRINKING WATER ACT TO ENHANCE THE SECURITY OF PUBLIC WATER
SYSTEMS, AND TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO
ENHANCE THE SECURITY OF WASTEWATER TREATMENT WORKS, AND FOR OTHER
PURPOSES
December 16, 2010.--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 GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
CHRISTOPHER A. COONS, Delaware MARK KIRK, Illinois
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Holly A. Idelson, Counsel
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Robert L. Strayer, Minority Director for Homeland Security Affairs
Devin F. O'Brien, Minority Professional Staff Member
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 700
111th Congress
SENATE
Report
2d Session 111-370
======================================================================
CONTINUING CHEMICAL FACILITIES ANTITERRORISM SECURITY ACT OF 2010
_______
December 16, 2010.--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 H.R. 2868]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 2868) to amend
the Homeland Security Act of 2002 to enhance security and
protect against acts of terrorism against chemical facilities,
to amend the Safe Drinking Water Act to enhance the security of
public water systems, and to amend the Federal Water Pollution
Control Act to enhance the security of wastewater treatment
works, and for other purposes, having considered the same,
reports favorably thereon with an amendment 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..............................................4
IV. Section-by-Section Analysis......................................6
V. Evaluation of Regulatory Impact..................................7
VI. Congressional Budget Office Cost Estimate........................7
VII. Changes to Existing Law Made by the Bill, as Reported...........11
I. Purpose and Summary
The purpose of H.R. 2868 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, H.R. 2868 would extend the program
until October 4, 2013, 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.\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. Sec. 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 under way. The original authorization
included a 3-year sunset that would have terminated the program
on October 4, 2009. The program was extended until October 4,
2010 by the Fiscal Year 2010 appropriations bill for the
Department of Homeland Security.\6\ The President requested
another one-year extension as part of the Fiscal Year 2011
budget request.\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.
\7\The Budget of the United States Government, Fiscal Year 2011,
Appendix, p. 574.
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The CFATS program generally applies to any facility that
possesses more than a threshold amount of certain dangerous
chemicals. Close to 38,000 facilities have completed ``Top
Screen'' assessments to determine whether they fall under the
program, and more than 6,000 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 2010, more than 4,700 high-risk
facilities had received final tiering decisions under the CFATS
program.
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\8\Chemical Security: Assessing Progress and Charting a Path
Forward: Hearing Before the Senate Comm. on Homeland Security and
Governmental Affairs, 111th Cong. (2010) (statement of Rand Beers).
Since Under Secretary Beers' testimony, 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 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.
As passed by the House, H.R. 2868 would permanently
authorize, and make several significant changes to, the
existing CFATS program. For example, the bill would require
facilities covered under the existing Maritime Transportation
Security Act (MTSA) to submit additional information to the
Secretary to determine if such facilities present a similar
security risk to those in the CFATS program and should be
required to meet CFATS security standards. The bill would
create a new security program governing drinking and wastewater
facilities, which would be administered by the Environmental
Protection Agency, in coordination with DHS. The House bill
also would require all CFATS facilities to consider process
modifications to reduce the consequences of a terrorist attack.
If certain conditions were met, DHS would be allowed to mandate
that covered facilities in the top two risk tiers implement
these process changes. The House-passed bill also included
additional changes. During a business meeting on July 28, 2010,
the Committee considered H.R. 2868 and adopted a complete
substitute that would extend the CFATS program for three years,
until October 4, 2013. The substitute 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 substitute also would add
new provisions to enhance implementation of the existing
program. The substitute amendment 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 amendment would also create an advisory
board to help DHS implement the voluntary technical assistance
program and the CFATS program generally.
III. Legislative History
H.R. 2868 was introduced on June 15, 2009, by
Representative Bennie Thompson, Chairman of the Committee on
Homeland Security, Representative Henry Waxman, Chairman of the
Committee on Energy and Commerce, and others. The Committee on
Homeland Security ordered the bill reported on June 23, 2009,
by a vote of 18 to 11. The bill was next considered by the
Committee on Energy and Commerce. That Committee ordered the
bill reported, as amended, on October 21, 2009, on a 29 to 18
vote. The full House approved the bill 230-193 on November 6,
2009.\9\
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\9\H. Rept. 111-205 Part 1 (Committee on Homeland Security, July
13, 2009); H. Rept. 111-205 Part 2 (Committee on Energy and Commerce,
October 23, 2009). The bill's provisions regarding drinking water
facilities are discussed in a related report: H. Rept. 111-313 to
accompany H.R. 3258, The Drinking Water System Security Act of 2009.
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The bill was received in the Senate and referred to this
Committee. On March 3, 2010, the Committee held a hearing on
the CFATS program, titled ``Chemical Security: Assessing
Progress and Charting a Path Forward.'' At that hearing, the
DHS Under Secretary for the National Protection and Programs
Directorate testified that the CFATS program is an important
addition to the nation's homeland security efforts and should
be extended and modified in several respects. Under Secretary
Beers, joined by Peter S. Silva, Assistant Administrator for
Water at the U.S. Environmental Protection Agency, laid out
several key Administration ``principles'' related to the
reauthorization of CFATS and other associated matters. First,
the Administration endorsed the permanent authorization of the
CFATS program. Second, Under Secretary Beers proposed creating
an additional, parallel security program for drinking water and
wastewater treatment facilities, led by the Environmental
Protection Agency but supported by DHS. Within the modified
CFATS program, the Administration proposed that all covered
facilities be required to consider implementation of
``inherently safer technology'' or IST, and sought the ability
to mandate the implementation of IST options for facilities in
the two riskiest tiers, subject to various conditions. Drinking
water and wastewater treatment facilities would be subject to
similar requirements with respect to IST. In addition to these
modifications, the Administration recommended that facilities
regulated under the Maritime Transportation Security Act (MTSA)
meet equivalent security standards to those facilities under
CFATS to ensure consistent security across the different
regulatory regimes.
A second panel included witnesses from different
stakeholder groups.
Darius Sivin, legislative representative for the
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, endorsed many key
features of H.R. 2868, such as creating security requirements
for drinking water and wastewater treatment facilities and
requiring facilities to consider, and in some cases implement,
safer technologies. Sivin testified that his union represents
workers in a number of facilities that use high-risk chemicals,
and that those chemicals put both the workers and surrounding
communities in potential danger in the event of an accident or
terrorist attack. Sivin said he believes at least some of these
facilities and other high-risk facilities can implement safer
processes that would improve security without risking jobs. He
cited the example of numerous wastewater treatment facilities
that have converted from chlorine gas to ultraviolet light or
liquid chlorine bleach.\10\
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\10\Sivin's union is part of a coalition of more than 50
environmental, labor and other citizen groups, known as the Blue-Green
Coalition, lobbying for expanded and permanent chemical site security
rules. A statement from the Coalition is included in the record for the
March 3, 2010 hearing. The statement notes that the current CFATS
program omits hundreds of facilities that are potentially high-risk
(i.e. drinking water and wastewater treatment facilities and those in
port areas), and does nothing to explicitly promote or require the
adoption of safer processes. At Senator Lieberman's request, the record
also includes a report from the Center for American Progress detailing
dozens of instances in which facilities are using extremely hazardous
materials or processes when safer alternatives may exist (and in some
cases have been implemented by similar facilities).
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However, witnesses for two chemical industry trade
associations said it is premature to change the CFATS program,
and expressed support for a bill by Senator Collins, S. 2996,
to extend the existing CFATS rules for an additional five
years--until October 4, 2015.\11\ Timothy J. Scott, Chief
Security Officer at Dow Chemical Company and testifying on
behalf of the American Chemistry Council, said the five-year
extension would give DHS time to fully implement and assess the
existing rules and give facilities needed regulatory stability.
Scott said companies are in the process of complying with
CFATS, and the program will require many of those facilities to
make significant new investments in security.
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\11\Senator Collins also entered into the record letters indicating
support for S. 2996 from 28 other organizations and businesses. Senator
Collins also entered statements for the record from Dr. Sam Mannan,
Director of the Mary Kay O'Connor Process Safety Center at Texas A&M
University; Mr. Tom Curtic, Deputy Executive Director for Governmental
Affairs for the American Water Works Association (AWWA); and the
National Petrochemical & Refiners Association (NPRA). In his testimony
for the record, Dr. Mannan focused on the need for far more research
and data before a federal mandate to implement or even consider
``inherently safer technology'' could be incorporated into the law.
AWWA's testimony raised its concerns with the ability of the federal
government to mandate ``inherently safer technology'' at water
utilities, stressing its belief that ``such decisions must be based on
critical local factors'' and that any legislation on the issue ``must
retain local decision making authority.'' NPRA's testimony expressed
support for S. 2996 and urged that ``decisions [regarding `inherently
safer technology'] should be left to individual sites and not mandated
by DHS.''
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Stephen Poorman, testifying for the Society of Chemical
Manufacturers and Affiliates, warned that the House bill would
cost jobs and threaten production of popular products. Poorman
criticized a requirement that all facilities covered by CFATS
consider IST options and the ability of DHS to mandate
implementation for the riskiest facilities under certain
conditions, warning that such process decisions are too complex
to lend themselves to regulation. He said some companies are
already adopting alternative processes as a means to drop out
of the CFATS program or move to a lower risk tier within the
program.
The Committee considered H.R. 2868 on July 28, 2010. At the
markup, Chairman Lieberman endorsed extending the CFATS
program, and also expressed support for changes included in the
House bill to require CFATS facilities to assess and in some
cases implement safer technologies, and to extend parallel
security requirements to drinking and wastewater
facilities.\12\ Senator Collins said the existing CFATS program
is effective and that it would be premature and potentially
harmful to make major changes. Senator Collins, on behalf of
herself and Senators Pryor, Voinovich, and Landrieu, offered a
substitute amendment to strike all of the House bill and
replace it with a three-year extension of the existing CFATS
rules, augmented by several additional features such as
voluntary exercise and training programs, voluntary technical
assistance programs, and increased information sharing between
DHS and industry on best practices. The Committee adopted the
Collins substitute amendment by unanimous consent.\13\ Members
then voted 13-0 to report the bill as amended, with Senators
Lieberman, Levin, Akaka, Carper, Pryor, Landrieu, McCaskill,
Tester, Collins, Brown, McCain, Voinovich, and Ensign voting
Yea. No Senator voted Nay. For the record only, Senators
Burris, Kaufman, Coburn, and Graham voted Yea by proxy. There
were no senators voting Nay by proxy.
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\12\www.hsgac.senate.gov/public/index.cfm?FuseAction =
Files.View&&FileStore id=16717035-b7ed-40ae-965d-1647lef1e39b
\13\Senator Carper circulated and discussed an amendment to require
facilities in the CFATS program to require all facilities in the
program to assess inherently safer technology options to improve
security--similar to an existing state requirement in New Jersey.
Senator Carper urged members to consider adding such a requirement to
the CFATS program as the reauthorization bill advanced, but did not
formally offer the amendment or seek a vote on it.
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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, 2013.
(b) This subsection includes several enhancements to the
existing CFATS program: 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 9-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 5 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, November 16, 2010.
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 H.R. 2868, the
Continuing Chemical Facilities Antiterrorism Security Act of
2010.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jason
Wheelock.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 2868--Continuing Chemical Facilities Antiterrorism Security Act of
2010
Summary: H.R. 2868 would extend through fiscal year 2013
the Department of Homeland Security's (DHS's) authority to
regulate security at chemical facilities that present a high
level of security risk. In addition, the act would establish
programs to provide technical assistance to such facilities on
methods to reduce the risk of or consequences from acts of
terrorism, and security training for facilities personnel and
first responders.
CBO estimates that implementing this legislation would cost
$414 million over the 2011-2015 period, assuming appropriation
of the necessary amounts. Enacting H.R. 2868 would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
H.R. 2868 would extend intergovernmental and private-sector
mandates, as defined in the Unfunded Mandates Reform Act
(UMRA), on owners and operators of public and private
facilities where certain chemicals are present. 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 ($70
million and $141 million, respectively, in 2010, adjusted
annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 2868 is shown in the following table.
The cost of this legislation falls within budget functions 050
(national defense) and 450 (community and regional
development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
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2011 2012 2013 2014 2015 2011-2015
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Chemical Facilities Antiterrorism Security Program:
Estimated Authorization Level....................... 84 86 88 0 0 258
Estimated Outlays................................... 29 59 82 54 24 248
FEMA Chemical Security Programs:
Estimated Authorization Level....................... 18 35 36 37 38 164
Estimated Outlays................................... 11 28 36 37 38 150
Voluntary Technical Assistance Program:
Authorization Level................................. 5 5 5 0 0 15
Estimated Outlays................................... 2 4 5 3 1 15
Chemical Facility Advisory Board:
Estimated Authorization Level....................... * * * * * 1
Estimated Outlays................................... * * * * * 1
Total Changes:
Estimated Authorization Level....................... 107 126 129 37 38 438
Estimated Outlays................................... 42 91 123 94 63 414
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Notes: Components do not sum to totals because of rounding.
FEMA = Federal Emergency Management Agency; * = less than $500,000.
Basis of estimate: For this estimate, CBO assumes that H.R.
2868 will be enacted in calendar year 2010, that the estimated
and specified amounts will be appropriated each year, and that
outlays will follow historical spending patterns for existing
or similar programs.
Chemical Facilities Antiterrorism Security Program
The act would extend for three years the authority for DHS
to regulate security at chemical facilities in the United
States that present a high level of security risk. Under the
current program, DHS reviews the security plans of high-risk
facilities and conducts on-site inspections to evaluate
compliance with site-specific security plans and the Chemical
Facility Antiterrorism Standards (CFATS). Not including
personnel compensation, DHS received approximately $56 million
in fiscal year 2010 to conduct such activities. In addition,
CBO estimates that DHS received $27 million in that same year
to pay for salaries and benefits of the DHS employees
associated with the CFATS program. Based on current personnel
levels and expenditures, CBO estimates that continuing this
effort would require the employment of approximately 200
personnel within DHS's National Protection and Programs
Directorate, and would cost about $250 million over the 2011-
2015 period.
FEMA Chemical Security Programs
H.R. 2868 contains provisions that would direct the Federal
Emergency Management Agency (FEMA) to provide voluntary
training and exercises for high-risk chemical facilities to
prevent, prepare for, respond to, and recover from natural and
man-made disasters and other emergencies. Training would target
officials and emergency responders from all levels of
government and the private sector, as well as individuals
located in neighborhoods adjacent to such facilities. Based on
current and historical expenditures of similar preparedness
programs--including FEMA's Radiological Emergency Preparedness
Program--and assuming lower costs in 2011 for enactment part
way through the fiscal year, CBO estimates that those
provisions would cost $150 million over the 2011-2015 period.
Voluntary Technical Assistance Program
H.R. 2868 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 implementing CFATS. The
act would authorize the appropriation of $5 million annually
through 2013 to provide technical assistance to facilities that
request aid under the program. Based on the authorized amounts,
CBO estimates that implementing this provision would cost $15
million over the 2011-2015 period.
Chemical Facility Advisory Board
The act would require that the Secretary of DHS establish a
Chemical Facility Advisory Board. The board would consist of
nine members, seven of whom would represent chemical facilities
covered by the CFATS and two of whom would be experts on topics
related to the security of chemical facilities. CBO estimates,
based on the costs associated with other DHS advisory bodies,
that implementing this provision would cost $1 million over the
2011-2015 period.
Pay-As-You-Go considerations: None.
Intergovernmental and private-sector impact: H.R. 2868
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. 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 ($70
million and $141 million, respectively, in 2010, adjusted
annually for inflation).
The act would extend, for three years, mandates contained
in CFATS, which are set to expire in December 2010. Those
mandates require owners and operators of public and private
facilities where certain chemicals are present to assess the
vulnerability of their facilities to a terrorist incident and
to prepare and implement security plans. The act also would
extend mandates that require owners and operators of such
facilities to maintain records, periodically submit reviews of
the adequacy of vulnerability assessments or 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.
Because facilities must currently comply with the existing
CFATS regulations, CBO estimates that the cost of continuing to
comply with those regulations would be small relative to the
annual thresholds established in UMRA.
Previous CBO estimates: On October 23, 2009, CBO
transmitted a cost estimate for H.R. 2868 as ordered reported
by the House Committee on Energy and Commerce on October 22,
2009. In addition, on July 9, 2009, CBO transmitted a cost
estimate for H.R. 2868 as ordered reported by the House
Committee on Homeland Security on June 23, 2009. Both of those
versions of the legislation would permanently authorize and
expand the authority of DHS to regulate security at chemical
facilities and would authorize the appropriation of $900
million over the 2011-2013 period for such purpose, a
significant increase over current spending levels.
The Senate version of the legislation does not provide a
specific authorization of appropriations and would extend the
existing authority for DHS to regulate chemical facilities
until the end of fiscal year 2013. The estimated costs for this
version of the legislation reflect its more limited scope.
Estimate prepared by: Federal Costs: Jason Wheelock (DHS)
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, 2010] October 4, 2013.
* * * * * * *
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 2011 through 2013, 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 2103.
(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.