For other versions of this document, see http://wikileaks.org/wiki/CRS-RL33447 ------------------------------------------------------------------------------ Order Code RL33447 CRS Report for Congress Received through the CRS Web Senate Proposals To Enhance Chemical Facility Security Updated July 5, 2006 Linda-Jo Schierow Specialist in Environmental Policy Resources, Science, and Industry Division Congressional Research Service ~ The Library of Congress Senate Proposals To Enhance Chemical Facility Security Summary The 109th Congress is considering how to address the risks and consequences of potential terrorist attacks on chemical facilities. This report compares and analyzes two bills in the Senate that would address these issues: S. 2145, as reported, and S. 2486, as introduced. S. 2145 was reported, amended (without written report), by the Committee on Homeland Security and Governmental Affairs on June 26, 2006. For background information on chemical facility security and summaries of other legislative proposals, see CRS Report RL31530, Chemical Facility Security. For more information about alternative legislative approaches, see CRS Report RL33043, Legislative Approaches to Chemical Facility Security. S. 2145 would direct the Secretary of the Department of Homeland Security (DHS) to issue rules designating chemical facilities subject to regulation, assigning them to various risk-based tiers, and establishing performance-based standards for each tier. Designated facilities would include facilities selected from those required to complete risk management plans under the Clean Air Act (CAA), Section 112(r)(7), and facilities handling more than specified quantities of ammonium nitrate or any other substance designated by the Secretary. Facilities would be required to submit to DHS vulnerability assessments, security plans, and emergency response plans for terrorist incidents. Plans would have to be "sufficient to deter, to the maximum extent practicable, a terrorist incident or a substantial threat of such an incident," and "include security measures to mitigate the consequences of a terrorist incident." To oversee implementation, S. 2145 would establish regional DHS security offices and area security committees and plans. DHS, other federal agencies, and state and local agencies would be prohibited from releasing to the public "protected information." S. 2145 expressly prohibits any private civil actions against an owner or operator to enforce provisions of the Act. S. 2145 also requires regulation of ammonium nitrate sales. S. 2486 addresses security and safety at "stationary sources," as defined by the CAA Section 112(r)(2), and other facilities holding substances of concern that the DHS Secretary, in consultation with the Administrator of the Environmental Protection Agency, designates as "high priority." For all stationary sources, S. 2486 would establish a general duty to identify hazards; ensure safe facility design, operation, and maintenance (including use of use of inherently safer technology); and reduce the consequences of a criminal release. Employees would assist owners or operators in these tasks. Each high-priority facility would be required to submit to DHS a vulnerability assessment, hazard assessment, and prevention, preparedness, and response plan. S. 2486 would exempt DHS from public disclosure requirements of the federal Freedom of Information Act for "all documents provided to the DHS Secretary under this Act, and all information that describes a specific vulnerability or stationary source derived from those documents." S. 2486 establishes Employees' Safety and Security Committees and mandates employee training with respect to the Act's requirements. This report will be updated as warranted by congressional activity. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 S. 2145 (Collins) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Chemical Sources and Substances of Concern . . . . . . . . . . . . . . . . . . . 2 Vulnerability Assessments and Planning Requirements . . . . . . . . . . . . 2 Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Other Accountability Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Ammonium Nitrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 S. 2486 (Lautenberg) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Chemical Sources and Substances of Concern . . . . . . . . . . . . . . . . . . . 4 General Duty to Ensure Safe Design, Operation, and Maintenance . . . 5 Vulnerability Assessments and Planning Requirements . . . . . . . . . . . . 5 Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Other Accountability Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Ammonium Nitrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Key Similarities and Differences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Chemical Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Substances of Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 General Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Inherently Safer Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Information Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Regional and Area Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Worker Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Ammonium nitrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 List of Tables Table 1. Comparison of S. 2145, as Reported, and S. 2486, as Introduced, in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Senate Proposals To Enhance Chemical Facility Security Introduction The 109th Congress is considering how to address the risks and consequences of potential terrorist attacks on chemical facilities. Competing bills, S. 2145 and S. 2486, have been introduced in the Senate. Other legislation has been introduced in the House, including a companion to S. 2145 (H.R. 4999). H.R. 5695 is similar to S. 2145, while two other bills, H.R. 1562 and H.R. 2237, are similar to proposals in the 108th Congress. This report focuses on legislation in the Senate. For background information on chemical facility security and summaries of other legislative proposals, see CRS Report RL31530, Chemical Facility Security, by Linda-Jo Schierow. For more information on alternative legislative approaches, see CRS Report RL33043, Legislative Approaches to Chemical Facility Security, by Dana A. Shea. S. 2145 and S. 2486 direct the Secretary of the Department of Homeland Security (DHS) to designate "substances of concern" and high-priority facilities for regulation. Both bills require assessments of vulnerability for designated facilities and preparation and implementation of security plans. Beyond these basic provisions, however, the bills would mandate facility actions, federal oversight mechanisms, and other requirements that differ in significant and often controversial ways. The purpose of this report is to summarize key provisions of the two bills, highlighting selected areas of disagreement and agreement. S. 2145 (Collins) Senator Collins, Chairman of the Homeland Security and Governmental Affairs Committee (HSGAC), introduced S. 2145, the Chemical Facility Anti-Terrorism Act, on December 19, 2005, following four full Committee hearings on the subject.1 Co- sponsors on introduction included Senator Lieberman (the HSGAC Ranking 1 Recordings of the four hearings are available on the Committee's website. They are "Chemical Attack on America: How Vulnerable Are We?" held April 27, 2005; "Is the Federal Government Doing Enough to Secure Chemical Facilities and Is More Authority Needed?" held June 15, 2005; "Chemical Facility Security: What Is the Appropriate Federal Role?" held July 13, 2005; and "Chemical Facility Security: What Is the Appropriate Federal Role? (Part II)," held July 27, 2005. The House Committee on Homeland Security, Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity also held a hearing on this issue on June 15, 2005, "Preventing Terrorist Attacks on America's Chemical Plants." A recording of the House hearing is not posted on the Committee website, but a transcript is available on the Congressional Quarterly website at [http://www.cq.com/]. CRS-2 Member), Senator Coleman, Senator Carper, and Senator Levin, all members of the HSGAC. The HSGAC reported an amended bill (without written report) on June 26, 2006. Chemical Sources and Substances of Concern. S. 2145 would direct the DHS Secretary to promulgate rules for designating chemical facilities (referred to in the legislation as "chemical sources") that would be subject to regulation, assigning these facilities to various risk-based tiers and establishing performance- based security standards for each tier. Facilities would be considered for designation if they produced, used, or stored a substance of concern in a quantity equal to or greater than a threshold quantity. To assist DHS in identifying facilities, the bill would establish a duty to report to DHS for facilities handling more than a threshold quantity of a designated substance of concern. Substances of concern would be those that trigger risk management planning requirements under the Clean Air Act (CAA), Section 112(r)(7),2 as well as ammonium nitrate and any other substance designated by the Secretary. A decision to designate a substance would be based on the potential extent of death, injury, or serious adverse effects to human health and safety or the environment, or the potential impact on national or economic security or critical infrastructure caused by a terrorist incident. Vulnerability Assessments and Planning Requirements. Designated facilities would be assigned to risk-based tiers and required to complete and submit to DHS vulnerability assessments, security plans, and emergency response plans for terrorist incidents. DHS would be required to review these submissions within five years of their date of submission and to provide a written determination to approve, disapprove, or modify facility assessments and plans, as well as implementation of plans. DHS would be prohibited from disapproving a site security plan based on the presence or absence of a particular security measure, if the plan satisfied the performance standards established for the applicable risk-based tier. For facilities in the higher-risk tiers, S. 2145 would require a preliminary DHS review of facility assessments and plans within nine months of the date when DHS issues regulations concerning assessments and plans. At that time, DHS would have to provide notice and compliance assistance to facilities for which an assessment or plan may not be approved. Three months later, (within one year of the date when DHS issues regulations concerning assessments and plans), S. 2145 requires a written determination by DHS to approve, disapprove, or modify facility assessments and plans, as well as implementation of plans for higher-risk facilities. S. 2145 would require intergovernmental coordination, and requires facility owners or operators to specify in their plans "steps taken by the chemical source to coordinate security measures and plans for response to a terrorist incident with Federal, State, and local government officials, including law enforcement and first responders." Plans would have to be "sufficient to deter, to the maximum extent 2 The list of regulated substances may be found at 40 CFR 68.130. Risk management planning is required to reduce and mitigate the risk to neighboring communities from accidental releases at facilities handling more than a threshold quantity of any of the 140 listed substances. CRS-3 practicable, a terrorist incident or a substantial threat of such an incident," and "include security measures to mitigate the consequences of a terrorist incident." Enforcement. S. 2145 would provide administrative, civil, and criminal penalties for facility owners or operators who fail to submit assessments or plans or to implement plans adequately. DHS would be authorized to issue an order for the chemical source to cease operation if the facility persisted in noncompliance with the requirements established under S. 2145. Coordination. The bill would mandate coordination with existing security and emergency response planning, including planning under the Maritime Transportation Security Act (MTSA). To ensure coordination, S. 2145 establishes regional security offices and area security committees and plans. State and local laws would not be preempted unless they were inconsistent with federal law. Information Disclosure. DHS, other federal agencies, and state and local agencies would be prohibited from releasing to the public "protected information." That term is defined to include vulnerability assessments, site security plans, security addenda to emergency response plans, area security plans, or materials developed or produced exclusively in preparation for assessments or plans. S. 2145 also includes in the definition of "protected information" any document obtained by DHS or a state or local government from a chemical source in accordance with this Act, and any document prepared by or provided to a federal agency or state or local government, to the extent that the record contains information that (1) describes a specific chemical source or the specific vulnerabilities of a chemical source; (2) was taken from a vulnerability assessment, site security plan, addendum to an emergency response plan, materials produced by a chemical source exclusively in preparation of such documents, or a copy of such record in possession of the chemical source; and (3) would, if disclosed, be detrimental to the security of a chemical source. The introduced bill would have required public disclosure of written certifications of compliance by facility owners/operators, DHS certificates of compliance issued for individual sources, DHS orders issued for noncompliance, and lists of facilities for which DHS has issued an approval or disapproval, unless the Secretary determined that release of a particular record would increase security risk. An amendment to S. 2145 was approved during markup that reverses this provision, such that certifications and orders could not be disclosed unless the Secretary were to determine that release of a particular record would increase security risk. Even if the Secretary determined an absence of increased risk, the Secretary would be authorized, but not required, to disclose the record. Judicial Review. As introduced, S. 2145 was silent with respect to judicial review. However, S. 2145 was amended during markup to permit any person to file a petition with the U.S. Court of Appeals for the District of Columbia for judicial review of a rule within 60 days of promulgation. The reported bill directs the court to review rules in accordance with the Administrative Procedure Act (i.e., 5 U.S.C. §701 et seq.). The amended bill would allow only an owner or operator whose facility is affected by a final agency action to file a petition for judicial review of the action CRS-4 with an appropriate U.S. district court. (The standard of review would remain that in the Administrative Procedure Act.) Only the owner or operator and the Secretary could participate in such civil actions. In addition, the bill expressly prohibits any private civil actions against an owner or operator to enforce provisions of the Act. Other Accountability Measures. Other provisions of S. 2145 would require reports by DHS and GAO, establish a process by which any person might submit a report to DHS regarding vulnerabilities of a chemical source, and protect whistle-blowers from retaliation. During markup, an amendment was approved that would prohibit GAO from releasing to the public any "protected information" in its reports. Ammonium Nitrate. S. 2145 directs the DHS Secretary, in consultation with the Secretary of Agriculture, to regulate the production and sale of ammonium nitrate to prevent misappropriation or use in violation of law. The bill would require registration of facilities and purchasers, and restrict sales to registered producers, sellers, and purchasers. S. 2486 (Lautenberg) Senator Lautenberg, a member of the HSGAC, introduced the Chemical Security and Safety Act of 2006 (S. 2486) on March 30, 2006. Co-sponsors on introduction included Senator Obama, Senator Kerry, Senator Menendez, Senator Durbin, and Senator Biden. Chemical Sources and Substances of Concern. S. 2486 addresses security and safety at "stationary sources," which are defined by reference to the CAA Section 112(r)(2),3 but also to include other facilities that produce, process, handle, or store any "substance of concern" and which the DHS Secretary designates as "high priority." Substances of concern are defined as substances listed under the CAA Section 112(r)(3) in a threshold quantity or any other substance designated by the Secretary under section 5(d) of the Chemical Security and Safety Act in a threshold quantity. The DHS Secretary, in consultation with the Administrator of the Environmental Protection Agency (EPA), would be directed to designate by rule at least 3,000 facilities handling substances of concern as "high priority categories." In designating high-priority facilities, the Secretary would be directed to consider potential severity of harm; proximity to population centers; threats to national security; threats to critical infrastructure; threshold quantities of substances of 3 The CAA §112(r)(2)(C) defines a "stationary source" to mean "any buildings, structures, equipment, installations, or substance-emitting stationary activities (i) which belong to the same industrial group, (ii) which are located on one or more contiguous properties, (iii) which are under the control of the same person (or persons under common control), and (iv) from which an accidental release may occur." The CAA §112(r)(2)(A) defines "accidental release" to mean "an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source." The CAA §112(r)(2)(B) defines "regulated substance" to mean "a substance listed under [CAA §112(r)] paragraph (3)." CRS-5 concern that pose a serious threat; and other safety or security factors that the DHS Secretary, in consultation with the EPA Administrator, determines to be appropriate. S. 2486 also would require the Secretary to identify the 600 highest priority stationary sources. General Duty to Ensure Safe Design, Operation, and Maintenance. For all stationary sources, S. 2486 would establish a general duty to -- ! identify hazards that may result from a criminal release of a substance; ! ensure that the facility is designed, operated, and maintained in a safe manner; and ! reduce the consequences of a criminal release. Owners or operators of stationary sources would be required to involve employees in ensuring the "design, operation, and maintenance of safe facilities," an obligation that is defined to include use of inherently safer technology (IST) "to the maximum extent practicable." S. 2486 defines IST as the "use of a technology, product, raw material, or practice that, as compared to the technology, products, raw materials, or practices currently in use ... significantly reduces or eliminates the possibility of the release of a substance of concern, and ... significantly reduces or eliminates the hazards to public health and safety and the environment associated with the release or potential release." This definition includes such actions as "chemical substitution, process redesign, product reformulation, and procedural and technological modification." Vulnerability Assessments and Planning Requirements. Each owner or operator of a high-priority facility would be required to submit to DHS a written report that would include a vulnerability assessment, a hazard assessment, and a prevention, preparedness, and response plan that would incorporate the results of the assessments and meet requirements established by DHS. Each plan would have to include discussion of the practicability of implementing each element of "safe" facility design, operation, and maintenance. The bill also requires consultation with employees at the facility in developing the assessments and plan. S. 2486 would require the DHS Secretary to review each submitted report to determine whether it complied with DHS regulations, and to certify approval for compliant facilities. In addition, the bill directs the DHS Secretary to notify any owner or operator who submits a plan that is disapproved. S. 2486 would establish an information clearinghouse to assist facilities in complying with requirements. Enforcement. S. 2486 would provide administrative, civil, and criminal penalties for facility owners or operators who failed to comply with a compliance order or directive issued by the Secretary. If a threat of a terrorist attack is beyond the scope of a submitted prevention, preparedness, and response plan, or current implementation of the plan is insufficient, DHS would be authorized to issue a compliance order. If a facility persisted in noncompliance, the Secretary would be authorized, after notifying the facility of that fact, to seek judicial relief to abate the threat. Such judicial relief could include an order to cease operation and such other orders as would be necessary to protect public health or welfare. CRS-6 Coordination. S. 2486 mandates coordination of implementation for the Chemical Security and Safety Act with the MTSA and directs the DHS Secretary to minimize duplication of requirements for risk assessment and response plans under other federal law. Information Disclosure. S. 2486 would protect DHS from public disclosure requirements of the federal Freedom of Information Act (FOIA) for "all documents provided to the DHS Secretary under this Act, and all information that describes a specific vulnerability or stationary source derived from those documents." A few documents are excepted from this protection, such as compliance certifications by the DHS Secretary. In addition, information derived from the protected documents may be disclosed if it would not divulge trade secrets, not identify any particular stationary source, and "is not reasonably likely to increase the probability or consequences of a criminal release." No protection is provided for information at other federal agencies, but state and local government agencies are protected from disclosure requirements of all federal, state, and local laws. As for DHS information protection, a few documents are excepted from protection at state and local government agencies. Judicial Review. S. 2486 is silent with respect to judicial review of DHS actions. That means that final actions by DHS, whether rules or orders, would be subject to judicial review as provided by the generally applicable Administrative Procedure Act (APA; 5 U.S.C. §501 et seq.). The APA permits any person the right to petition a federal district court for review of a final agency action. Under the APA, an agency rulemaking can be held unlawful or set aside if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."4 The court can also "compel agency action unlawfully withheld or unreasonably delayed." Other Accountability Measures. S. 2486 would establish Employees' Safety and Security Committees at stationary sources with at least 15 employees, and mandates employee training at all stationary sources with respect to the Act's requirements. In addition, the bill would require notification and involvement of employees in facility inspections and investigations. Protection is provided for employees who might report problems at their facilities to authorities. Ammonium Nitrate. S. 2486 does not authorize additional regulation regarding sale or purchase of ammonium nitrate. Key Similarities and Differences Chemical Sources. Both bills would direct the Secretary to focus on chemical sources regulated under the CAA §112(r). However, S. 2145 provides the Secretary discretion with respect to designating and requires only that the Secretary consider "any facility that is a stationary source ... for which the owner or operator is required to complete a risk management plan...." Facilities required to complete a risk management plan are those at which a regulated substance is present at a 4 The judicial review provisions of the APA are codified at 5 U.S.C 701-706. CRS-7 quantity greater than a threshold quantity (CAA §112(r)(7)). In contrast, S. 2486 would apply to all stationary sources, which the bill defines with reference to the CAA §112(r)(2). That definition includes "any buildings, structures, equipment, installations, or substance-emitting stationary activities" (arguably a wider category than "facilities") "(i) which belong to the same industrial group, (ii) which are located on one or more contiguous properties, (iii) which are under the control of the same person (or persons under common control), and (iv) from which an accidental release may occur." In addition, both bills would authorize designation of additional facilities for regulation. S. 2145, but not S. 2486, exempts facilities owned or operated by the Department of Energy, the Department of Defense, or a licensee or certificate holder of the Nuclear Regulatory Commission. Substances of Concern. S. 2145 would define "substance of concern" as a chemical substance present at a chemical source in a quantity equal to or exceeding the threshold quantity, as established under the CAA §112(r)(3) and (5); ammonium nitrate, in a quantity to be determined by the Secretary; or any other chemical substance above a threshold quantity designated by the Secretary. S. 2486 would define "substance of concern" similarly, but does not include ammonium nitrate in its definition. General Duty. S. 2145 would not impose a general duty on stationary sources that produce, process, handle, or store any "substance of concern," as does S. 2486. The latter would require owners or operators of stationary sources (1) to identify hazards that may result from a criminal release; (2) to ensure the "design, operation, and maintenance of safe facilities"; and (3) to eliminate or minimize the consequences of any criminal release. Inherently Safer Technology. S. 2486 would require owners or operators of stationary sources to ensure the "design, operation, and maintenance of safe facilities," which the bill defines to include the use of IST "to the maximum extent practicable." Higher priority stationary sources are required to consider use of IST, implement IST to the maximum extent practicable, and document consideration in security and response plans. S. 2145 does not require consideration or implementation of IST, although it explicitly allows consideration and use of technologies that would reduce potential consequences of any successful terrorist attack as a security measure in a site security plan. During markup of S. 2145, the committee approved an amendment that would prohibit the Secretary from disapproving a security plan because it failed to incorporate a particular security measure. This provision was adopted to ensure that the Secretary would not require IST. Information Protection. Both bills would exempt DHS from FOIA requirements for public disclosure of agency documents. S. 2145 would prohibit disclosure of "protected information" (see definition above). In addition, it prohibits disclosure of certifications and orders that might reveal the compliance status of regulated facilities. Certifications (but not orders) may be released only if the Secretary determines that release of such information would not increase the risk to a facility. S. 2145 directs the Secretary to develop protocols to ensure, to the CRS-8 maximum extent practicable, that protected information will be maintained in a secure location and that access will be limited to persons granted access for the purpose of carrying out the Chemical Facility Anti-Terrorism Act. The bill also mandates that any officer or employee of a federal, state, or local government agency who knowingly discloses any protected information be imprisoned for up to one year, fined under chapter 227 of title 18, United States Code, or both, and if a federal employee, removed from office or employment. S. 2486 would exempt DHS from FOIA requirements with respect to "all documents provided to the DHS Secretary under this Act, and all information that describes a specific vulnerability or stationary source derived from those documents," but the bill also would allow public disclosure of information derived from the documents and information that is protected if it would not divulge trade secrets, identify any particular stationary source, and "is not reasonably likely to increase the probability or consequences of a criminal release." S. 2486 would not restrict disclosure of certifications under §6(b), orders under §10(a), or best practices established under §13(4) of the Act. The bill would require the Secretary to develop information protection protocols, but S. 2486 would not authorize penalties for unauthorized disclosure of protected information. Regional and Area Planning. S. 2145 would establish regional DHS security offices to oversee facility efforts and area committees to coordinate local, state, and federal security and emergency response planning. S. 2486 does not include such provisions. Judicial Review. S. 2145 distinguishes between rulemaking and other final agency actions with respect to courts of jurisdiction, as well as parties authorized to act. S. 2145 would allow challenges to final rules only in the U.S. Court of Appeals for the District of Columbia, but challenges to any other final actions could be filed only in the appropriate federal district court. Because S. 2486 does not address judicial review of final DHS actions, actions may be filed in any federal district court. S. 2145 would permit any person to file a petition for judicial review of a final regulation but would permit only the owner or operator of a chemical source to file a petition for review of a final agency action or order. Only that owner or operator and the Secretary would have the right to participate in such civil action. In contrast, because S. 2486 does not address judicial review of final DHS actions, any person who is affected by a final DHS action, including promulgation of a final rule, has the right under the Administrative Procedure Act to file an action for its review and to participate in any civil action initiated by another. Finally, S. 2145 explicitly denies any right to private civil actions against an owner or operator to enforce provisions of the Act. Again, S. 2486 is silent with respect to private rights of action. As a result, it is unclear whether a private right of action would be permitted. Worker Involvement. S. 2486 would establish Employees' Safety and Security Committees at facilities with 15 or more employees to identify, discuss, and make recommendations to owners or operators concerning potential hazards and risks relevant to security, safety, health, and the environment. These committees are to CRS-9 participate in developing, reviewing, and revising vulnerability assessments, hazard assessments, and prevention, preparedness, and response plans at their facilities. Owners or operators would be required to provide employees annually with four hours of training relevant to security and safety planning. S. 2145 does not have such provisions. Both bills provide protection for employees who might report problems at their facilities to authorities, but whistle-blower protection provisions are more extensive and detailed in S. 2486 than in S. 2145. Ammonium nitrate. S. 2145 directs the DHS Secretary, in consultation with the Secretary of Agriculture, to regulate the production and sale of ammonium nitrate to prevent misappropriation or use in violation of law. The bill would require registration of facilities and purchasers, and it would restrict sales to registered producers, sellers, and purchasers. S. 2486 does not contain such provisions. Table 1 summarizes selected provisions of the two bills. CRS-10 Table 1. Comparison of S. 2145, as Reported, and S. 2486, as Introduced, in the 109th Congress Provision S. 2145, as reported S. 2486, as introduced Title Chemical Facility Anti-Terrorism Chemical Security and Safety Act Act [§1] [§1] Key Definitions Chemical source Defined as a facility designated Not defined. Instead defines by the Secretary of the "stationary source" as defined in Department of Homeland Security the Clean Air Act (CAA) (DHS). §112(r)(2) with the addition of any chemical facility designated by the DHS Secretary under §5(d) of the Chemical Security and Safety Act. Protected Includes (1) any vulnerability Not defined. Information that is to information assessment, site security plan, be protected under §11(a) includes area security plan, and security "all documents provided to the addendum to an emergency DHS Secretary under this Act, and response plan prepared for the all information that describes a purposes of this Act and obtained specific vulnerability or stationary by DHS under §4; (2) any source derived from those materials obtained by DHS and documents," except certifications developed or produced by a under §6(b), orders under §10(a), chemical source exclusively in and best practices for IST preparation of records, established under §13(4). documents, or information referred to by an assessment, plan, or addendum or an emergency response plan; (3) any document or other information obtained by DHS or a state or local government from a chemical source in accordance with this Act, and any document prepared by or provided to a federal agency or state or local government, to the extent that the document or information (a) describes a specific chemical source or the specific vulnerabilities of a chemical source; (b) was taken from a vulnerability assessment, site security plan, area security plan, addendum to an emergency response plan, or an emergency response plan or from a copy of such record in possession of the chemical source; and (c) would, if disclosed, be detrimental to the security of a chemical source. CRS-11 Provision S. 2145, as reported S. 2486, as introduced Security or safety Defines "security measure" Defines "design, operation, and measure broadly to include measures to maintenance of safe facilities" to prevent or detect the presence of include "to the maximum extent terrorists in sensitive areas of the practicable" -- facility, as well as measures to "use of inherently safer reduce consequences in the event technology;" measures to make of a successful terrorist attack. facilities impregnable; "outreach to [§2] the surrounding community;" improving site security, employee training, and coordination with state and local emergency officials, law enforcement agencies, and first responders; and secondary containment, control, or mitigating equipment. The definition also includes use of buffer zones. Use of inherently No comparable definition. Defines "use of inherently safer safer technology technology" as use of a technology, product, raw material, or practice that significantly reduces or eliminates the possibility of the release of a substance of concern, and significantly reduces or eliminates the hazards to public health and safety and the environment associated with the release or potential release. [§3] Substance of Defined as a chemical substance Defined as any substance listed concern present at a chemical source in a under the CAA §112(r)(3) in a quantity equal to or exceeding the threshold quantity or any other threshold quantity for the substance designated by the chemical substance, as established Secretary in a threshold quantity under the CAA §112(r)(3) and under §5(d) of this Act. Does not (5); ammonium nitrate, in a refer to the CAA §112(r)(5) or quantity to be determined by the ammonium nitrate. DHS Secretary; or any other [§3] chemical substance above a threshold quantity designated by the DHS Secretary under §3(i). [§2] CRS-12 Provision S. 2145, as reported S. 2486, as introduced Covered Facilities Includes facilities designated by Includes all "stationary sources" DHS under §3(a), but not under the CAA §112(r)(2), in facilities owned or operated by addition to any other sources the Department of Energy, designated in regulations as "high Department of Defense, or a priority" under §5(d) by the DHS licensee or certificate holder of Secretary. the Nuclear Regulatory [§5] Commission. In designating facilities, the DHS Secretary must consider: (1) any facility that is a "stationary source" under the Clean Air Act (CAA), §112(r)(2) and for which the owner or operator is required to complete a risk management plan in accordance with CAA §112(r)(7) (B)(ii); (2) any other facility that produces, uses, or stores a "substance of concern"; and (3) any additional facility that the DHS Secretary determines shall be designated a chemical source. [§3(c)-(d)] Criteria for Requires the DHS Secretary to No comparable provision, but Designating Facilities establish criteria for designating criteria for designating high- chemical sources by regulation. priority sources are similar. See The DHS Secretary must base "Identifying Priorities" below. designation criteria on the following "risk factors": -- perceived threat to a facility; -- potential extent and likelihood of serious adverse effects to human health and safety or to the environment; -- threats to or potential impact on national security or critical infrastructure; -- potential threats or harm to the economy; -- proximity of a facility to population centers; -- nature and quantity of substances of concern; and -- other security-related factors necessary to protect public health and safety, critical infrastructure, and national and economic security. [§3(a)-(b)] CRS-13 Provision S. 2145, as reported S. 2486, as introduced Identifying Priorities Requires the DHS Secretary to Requires the DHS Secretary, in promulgate rules establishing a consultation with the Administrator risk-based tier system of chemical of the U.S. Environmental sources, consisting of several Protection Agency (EPA) and state tiers, and providing guidance to and local government agencies owners and operators regarding responsible for planning for and actions that would enable a source responding to criminal releases and to move to a lower risk tier. One for providing emergency health or more tiers must be "higher care, to designate "high priority" risk" tiers. facilities by regulation, based on Directs the DHS Secretary to "the severity of the threat posed by determine the tier applicable to a criminal release." At least 3,000 each designated chemical source. facilities must be designated "high (Note that the listing of facilities priority." In designating facilities is not through rule-making.) "high priority," the DHS Secretary [§3(e)] must consider: -- potential severity of harm; -- proximity to population centers; -- threats to national security; -- threats to critical infrastructure; -- threshold quantities of substances of concern that pose a serious threat; and -- other safety or security factors that the DHS Secretary, in consultation with the EPA Administrator, determines to be appropriate. Each stationary source must be considered individually. The DHS Secretary also must identify the 600 highest priority stationary sources. [§5(a)-(b) and §6(c)(1)] In designating high-priority categories, the DHS Secretary, in consultation with the EPA Administrator, is authorized to designate by rule any chemical facility as a "stationary source." [§5(d)] CRS-14 Provision S. 2145, as reported S. 2486, as introduced General Duty No comparable provision. Establishes for each owner and operator of a stationary source that produces, processes, handles, or stores any "substance of concern" a general duty: (1) to identify hazards that may result from a criminal release; (2) to ensure the "design, operation, and maintenance of safe facilities;" and (3) to eliminate or minimize the consequences of any criminal release. Requires that the owner or operator of a stationary source involve employees of the source in each aspect of ensuring the "design, operation, and maintenance of safe facilities." [§4] Security Standards Requires the DHS Secretary to Requires the DHS Secretary, in establish security performance consultation with the EPA standards for each risk-based tier Administrator, the U.S. Chemical of facilities, with stricter Safety and Hazard Investigation requirements for tiers posing Board, and state and local greater risks. The standards must government agencies, to allow an owner or operator to promulgate regulations that require select security measures that, in each owner and each operator of a combination, satisfy the security "high priority" stationary source to performance standards and must take action to detect, prevent, and be risk-based, performance-based, eliminate or reduce the flexible, and include consequences of terrorist attacks consideration of the criteria for and other criminal releases. Such designating chemical sources action must be taken in [under §3(a)], cost, technical consultation with local law feasibility, and scale of enforcement, first responders, operations. employees, and employee [§3(f)] representatives, and must include the "design, operation, and maintenance of safe facilities." [§5(c)(1) and §5(e)] Notice to Potentially Requires the DHS Secretary to No comparable provision. Designated Facilities notify potentially regulated facilities about the process and timeline for review and designation of chemical sources. [§3(g)] Review of Designation Requires the DHS Secretary to Requires the DHS Secretary, in of Chemical Sources review and revise as necessary the consultation with the EPA list of designated sources every 3 Administrator, to review the years. Authorizes additional regulations designating "high revisions of the list by the DHS priority" sources and make Secretary. necessary revisions, at least once [§3(h)] every 5 years. [§5(e)] CRS-15 Provision S. 2145, as reported S. 2486, as introduced Identification of Requires the owner or operator of No comparable provisions, but see Additional Chemical any facility where a threshold "Identifying Priorities" above. Sources quantity of a substance of concern is present to petition the DHS Secretary for a determination on whether that facility should be designated a chemical source, if that facility has not been required to complete a risk management plan (under the CAA §112(r)(7) (B)(ii). Directs the DHS Secretary to consult with the EPA Administrator to establish a mechanism for DHS to receive timely notice when a facility is required to complete a risk management plan in accordance with CAA §112(r)(7)(B)(ii). Requires the owner or operator of any newly operational facility that handles at least the threshold quantity of a substance of concern to file a petition with the DHS Secretary for a determination on whether that facility should be designated a chemical source. [§3(h)] Authority to Authorizes the DHS Secretary to Authorizes the DHS Secretary, in Designate Substances issue a rule designating or consultation with the EPA of Concern and exempting a chemical substance Administrator, for the purpose of Threshold Quantities as a substance of concern or designating "high priority" establishing or revising the categories, to designate by rule any threshold quantity. In additional substance that, in a promulgating such rules, the DHS specified threshold quantity, poses Secretary must consider "the a serious threat as a "substance of potential extent of death, injury, concern." [§5(d)] or serious adverse effects to human health and safety or the environment and the potential impact on national security, the economy, or critical infrastructure that would result from a terrorist incident involving the chemical substance." [§3(i)] CRS-16 Provision S. 2145, as reported S. 2486, as introduced Vulnerability Requires the DHS Secretary to Requires each owner or operator of Assessments, Site promulgate regulations requiring a high-priority facility to submit a Security Plans, and the owner or operator of each report to the DHS Secretary within Emergency Response chemical source to conduct a 6 months of the date on which Plans vulnerability assessment, prepare regulations are promulgated under and implement a site security §5(c)(1). The report must include plan, and prepare and implement a vulnerability assessment, an an emergency response plan or assessment of the hazards that may addendum to an existing plan. result from a criminal release; and The regulations must be risk- a prevention, preparedness, and based, performance-based, response plan. flexible, and include Requires the DHS Secretary to consideration of the criteria for notify each stationary source of an designating chemical sources elevated threat if the DHS [§3(a)], cost, technical feasibility Secretary, in consultation with and scale of operations. local law enforcement officials, Authorizes cooperation among determines that a threat of a sources operating at contiguous terrorist attack exists that is beyond locations. Directs the DHS the scope of a submitted Secretary to share relevant threat prevention, preparedness, and information with state and local response plan of one or more government officials and with an stationary sources. owner or operator of a chemical [§5(c)(2) and §10(c)(1)] source. Specifies content of vulnerability assessments. [§4(a)] Content of Site Requires that each site security Requires that each plan incorporate Security Plans plan indicate the tier applicable to the results of the vulnerability and the facility; address risks hazard assessments. Required identified in the vulnerability reports to DHS also must include a assessment; address appropriate statement as to how the plan meets security performance standards; the requirements of the regulations; include security measures a statement as to how the appropriate to the tier level that prevention plan meets the general are "sufficient to deter, to the duty requirements of §4; a maximum extent practicable, a discussion of the consideration of terrorist incident or a substantial the elements of "design, operation, threat of such an incident;" and maintenance of safe facilities," include security measures to including the practicability of mitigate the consequences of a implementing each element; and a terrorist incident; increase statement describing how and when security of automated systems; employees and employee describe contingency plans for the representatives were consulted. facility; identify roles and [§5(c)(2)] responsibilities of employees; identify steps taken to coordinate with government officials; describe training, drills, exercises, and security actions; and describe security measures that would be implemented in response to an order under §7 in the event that heightened security measures became necessary for a particular facility. [§4(a)] CRS-17 Provision S. 2145, as reported S. 2486, as introduced Contents of Requires that an emergency No comparable provision. Emergency Response response plan address the Plans consequences of a terrorist incident identified in the vulnerability assessment; is consistent with the site security plan; and identifies the roles and responsibilities of employees. Requires plans to be modified versions of plans that have been federally approved or certified and that are in effect on the date of enactment, if consistent with guidance provided by the National Response Team (NRT) established under the National Contingency Plan.5 If no plan exists, then the owner or operator is required to develop one by following guidance provided by the NRT. Directs owners or operators to place security information in an addendum to the plan, if necessary, to protect it from public disclosure. [§4(a)] Self-Certification and Within 6 months of promulgation No comparable provision. Submission of rules requiring vulnerability assessments, site security plans, and emergency response plans, each owner or operator of a chemical source must certify in writing to the DHS Secretary that a vulnerability assessment has been completed and a site security plan and an emergency response plan have been developed and implemented, and must submit copies of the vulnerability assessment and plans to the DHS Secretary. [§4(b)] 5 The National Contingency Plan (NCP) and the National Response Team (NRT) are established by EPA and the U.S. Coast Guard under the authority of Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (also known as Superfund, 42 U.S.C. 9605). The purpose of the NCP and NRT is to coordinate cleanup of releases of hazardous substances or oil. CRS-18 Provision S. 2145, as reported S. 2486, as introduced Review and Approval Requires the DHS Secretary, Requires the DHS Secretary, in by the DHS Secretary within 5 years of the promulgation consultation with the EPA of Reports Submitted of requirements for vulnerability Administrator, to review each by Covered Facilities assessment and site security and report submitted to determine emergency response planning, to whether the source covered by the review submitted documents to report is in compliance with determine whether they comply regulations promulgated under with requirements promulgated §5(c)(1). Requires the DHS under §4(a). Authorizes Secretary, after consultation with subsequent reviews on a schedule the EPA Administrator, to notify to be determined by the DHS the stationary source and to Secretary. Requires the DHS provide advice and technical Secretary to provide the owner or assistance to the source, if the DHS operator written notice regarding Secretary determines, in DHS determination of compliance consultation with the EPA or noncompliance of the Administrator, that a report does vulnerability assessment, security not comply, a threat exists that is and emergency plans, and facility beyond the scope of the plan implementation. DHS is submitted, or the implementation prohibited from disapproving a of the plan is insufficient. site security plan based on the [§6(a) and (d)] presence or absence of a particular security measure, if the plan satisfies the performance standards established for the applicable tier. If a notice indicates disapproval, the notice must include a clear explanation of deficiencies, and DHS must consult with the owner or operator to identify steps to achieve compliance. [§4(c)] Schedule for Review Within 9 months of the Within 2 years of the date on which and Approval of promulgation of requirements for reports are required to be Reports by Facilities vulnerability assessment and site submitted under §5(c)(2), requires in Higher-risk Tiers security and emergency response the DHS Secretary to complete planning, requires the DHS review and certification of all Secretary to conduct a preliminary reports submitted by high-priority review of higher-risk facilities and stationary sources. Within 6 provide notice and compliance months of the date on which assistance to owners or operators reports are required to be if their assessment or plan may submitted under §5(c)(2), requires not be approved. Within one year the DHS Secretary to review of the promulgation of reports and certify compliance of requirements for assessments and the 600 highest priority stationary plans, requires the DHS Secretary sources. to (1) review and approve, [§6(c)] disapprove, or modify a vulnerability assessment, site security plan, and emergency response plan submitted by a chemical source in a higher-risk tier; and 2) determine whether the chemical source is operating in compliance with the submitted site security plan and emergency response plan. [§4(c)] CRS-19 Provision S. 2145, as reported S. 2486, as introduced Certificate of Requires the DHS Secretary to Requires the DHS Secretary to Compliance issue a certificate of approval for certify each compliance facilities in compliance with the determination for each "higher requirements of this Act. priority" source, and to include a [§9(b)(2)] checklist indicating the consideration by the source of the use of elements of "design, operation, and maintenance of safe facilities." [§6(b)] Authority to Issue Authorizes the DHS Secretary to Authorizes the DHS Secretary, in Orders for issue an order requiring consultation with the EPA Noncompliance certification and submission, if an Administrator, to issue an order owner or operator fails to certify requiring compliance by the owner or to submit a vulnerability or operator of a stationary source assessment, site security plan, or 30 days after the date on which the emergency response plan. Directs DHS Secretary first provided the DHS Secretary to issue an assistance, or the owner or operator order requiring correction of received notice regarding a specified deficiencies if the owner deficient report under §6(d)(2), or operator does not achieve whichever is later. An order may compliance by a date to be be issued only after such notice and determined by the DHS Secretary. an opportunity for a hearing. Authorizes the DHS Secretary to [§10(a)] issue an order for a chemical source to cease operation, if the owner or operator continues to be in noncompliance after an order to comply with requirements has been issued. [§4(b)-(c)] Authority to Close Authorizes the DHS Secretary to No comparable provision, but see Non-compliant issue an order to a chemical "Heightened Security Measures" Facilities in Higher- source in a higher risk tier to below. Risk Tiers cease operation, if the DHS Secretary disapproves its vulnerability assessment, site security plan, or emergency response plan or determines that a chemical source is not operating in compliance with its site security plan or emergency response plan. [§4(c)] CRS-20 Provision S. 2145, as reported S. 2486, as introduced Heightened Security Authorizes the DHS Secretary to If the DHS Secretary has notified a Measures issue an order to the owner or stationary source that a threat of a operator of a chemical source terrorist attack exists that is beyond mandating security measures the scope of a submitted specified in rules promulgated prevention, preparedness, and under §4(a), if the DHS Secretary response plan of one or more determines that additional security stationary sources, or that current measures are necessary to respond implementation of the plan is to a threat. Orders may be insufficient, and the response by a effective for up to 90 days, or stationary source to such longer if the DHS Secretary files notification is insufficient, the DHS an action in a U.S. district court Secretary is required to notify the and the court authorizes an stationary source, the EPA extension. Administrator, and the Attorney [§7] General. After the DHS Secretary provides such notice, the DHS Secretary or the Attorney General may secure such relief as is necessary to abate a threat, including an order to cease operation and such other orders as are necessary to protect public health or welfare. Provides district courts with the jurisdiction to grant such relief. [§10(c)(2)] No comparable provision. Authorizes [by reference to the CAA §112(r)(9)] judicial relief in the case of an imminent danger to public health. [§9(a)] Information No comparable provision. Requires the DHS Secretary, in clearinghouse consultation with the EPA Administrator, to establish an information clearinghouse to assist stationary sources in complying with this Act that includes "scalable best practices" for IST and other actions. [§13] CRS-21 Provision S. 2145, as reported S. 2486, as introduced Submissions and Requires owners or operators of No comparable provision. Certification of chemical sources to notify the Changes Affecting the DHS Secretary in writing within Security of a Chemical 60 days of any change to a Source chemical source that would have a "materially detrimental effect" on its security. Requires owners and operators to certify to the Secretary that they have reviewed and implemented necessary modifications to the vulnerability assessment, site security plan, or emergency response plan. Requires the DHS Secretary to provide written notice to the owner or operator if additional modification of a vulnerability assessment, site security plan, or emergency response plan is required. Requires owners or operators to ensure temporary security measures are implemented before the modified vulnerability assessment, site security plan, or emergency response plan is implemented. [§4(d)] CRS-22 Provision S. 2145, as reported S. 2486, as introduced Facilities Regulated Requires a facility regulated under Requires the DHS Secretary, in under Other Federal the Maritime Transportation consultation with the EPA Laws Security Act (MTSA) to comply Administrator, to minimize with the Chemical Facility Anti- duplication of the requirements for Terrorism Act by modifying and risk assessments and response submitting to the Maritime plans under the MTSA. Security Coordinator and the DHS Secretary its facility security assessment and facility security plan. Modifications should ensure compliance with the security performance standards of the tier applicable to the chemical source under the Chemical Facility Anti-Terrorism Act. Requires the DHS Secretary, in consultation with the Federal Maritime Security Coordinator, to determine whether such facility security assessment and plan meet the security performance standards established by the DHS Secretary. Requires the DHS Secretary to implement this Act and the MTSA in "as consistent and integrated manner as possible," and to ensure coordination between the DHS Under Secretary for Preparedness and the Coast Guard Commandant. [§4(e)] No comparable provision. Requires the DHS Secretary, in consultation with the EPA Administrator, to minimize duplication of the requirements for risk assessments and response plans under the CAA and other federal law. [§15(a)] CRS-23 Provision S. 2145, as reported S. 2486, as introduced Alternative Security Authorizes the DHS Secretary to No comparable provision. Programs consider a petition submitted by any person that describes alternate security procedures, protocols, and standards established by an industry entity, government authority, or other law and the scope of chemical sources to which it would apply. Authorizes the DHS Secretary to determine (by rule, regulation, or order) whether the alternative security program meets all promulgated requirements for a vulnerability assessment, security plan, and emergency response plan. If the DHS Secretary determines that all requirements are met, the DHS Secretary is required to notify the petitioner that any chemical source covered by that program may submit an assessment or plan prepared under that program without revision. Authorizes the DHS Secretary to specify (by rule, regulation, or order) what modifications would be necessary to meet promulgated requirements. Allows an owner or operator covered by the program to submit an alternative assessment or plan with the specified modifications. [§4(f)] Updates to Requires the owner or operator of Requires the owner or operator of a Vulnerability a chemical source to review the high priority stationary source, Assessments, Site adequacy of the vulnerability within 3 years after the date of Security Plans, and assessment, site security plan, and submission of the first report and Emergency Response emergency response plan on a every 2 years thereafter, to review Plans schedule to be determined by the the adequacy of the report, certify DHS Secretary, and to certify to that the review is complete, and the DHS Secretary that the submit to the DHS Secretary any chemical source has completed changes to the assessment or plan. the review and implemented any [§6(e)] needed modifications. For a facility in a higher-risk tier, requires the DHS Secretary to establish a timeline that requires review within one year of the date of approval of the previous vulnerability assessment, site security plan, and emergency response plan, and not less often than every 3 years thereafter. For a facility in any other tier, review must be required at least every 5 years. [§4(g)] CRS-24 Provision S. 2145, as reported S. 2486, as introduced Record Keeping, Site Requires the owner or operator to Requires the owner or operator to Inspections, and keep a copy of the vulnerability keep at the stationary source copies Production of assessment, site security plan, and of any vulnerability assessment, Information emergency response plan for 5 hazard assessment, or prevention, years after the date on which it preparedness, and response plan was approved by the DHS required under §5(c)(2). Provides Secretary. Authorizes the DHS to the DHS Secretary and EPA Secretary to require submission Administrator, for purposes of of, or seek access to and copy, determining compliance with this any required copy of a Act, authority that is provided to vulnerability assessment, site the EPA Administrator by the CAA security plan, or emergency §112(r)(7), §112(r)(9), or §114. response plan or any Includes authority to require an documentation needed to support owner or operator to prepare and such assessment or plan or to submit hazard assessment, risk demonstrate implementation of management plans, or emergency such. response plans; to establish and maintain records; make reports; submit compliance certifications; or provide information. Provides the DHS Secretary with Authorizes the DHS Secretary and a right of entry to the premises of the EPA Administrator to enter a chemical source and any other premises and have access to and premises on which any required copy records. copy of a vulnerability assessment, site security plan, or emergency response plan is located. Requires the DHS Secretary to Directs the DHS Secretary and the conduct, or require the conduct EPA Administrator to establish a of, facility security audits and program to conduct regular inspections to ensure and evaluate inspections. Requires at least 25% compliance with the Chemical of inspections to occur without Facility Anti-Terrorism Act. [§5] prior notice to the facility owner or operator. No comparable provision. When notice is provided, the DHS Secretary or the EPA Administrator must inform the owner or operator that public posting of that notice is required. When conducting an inspection, an official must instruct the owner or operator to afford opportunity to participate in the inspection to any employee. Official explanations of the purpose, scope, procedures, progress, or outcome of an inspection or investigation must be shared with such employees. Authorizes officials to interview any person at the stationary source as necessary. [§9] CRS-25 Provision S. 2145, as reported S. 2486, as introduced Audits for Higher- Requires DHS Secretary to No comparable provision. Risk Tiers conduct an audit or inspection of each higher-risk facility annually. Authorizes exemptions for particular facilities if they have been audited and found in compliance for 5 consecutive years. [§5(b)(2)(C)] Compliance Orders If the DHS Secretary determines Authorizes the DHS Secretary, in for Record Keeping, that an owner or operator of a consultation with the EPA Inspections, and chemical source is not Administrator, to issue an order Production of maintaining, producing, or directing compliance 30 days after Information permitting access to records or to the date on which the DHS the premises of the chemical Secretary provides notice to the source as required, authorizes the source that it is not in compliance. DHS Secretary to issue an order [§10(a)(1)] requiring compliance. [§5(d)] Infrastructure Requires the DHS Secretary to No comparable provision. Protection and provide necessary infrastructure, Implementation leadership, technical assistance, guidance, and accountability to ensure effective security planning and response in areas surrounding chemical sources. Requires the DHS Secretary to promulgate regulations, establish organizations, and take actions to ensure effective planning and response in a manner that models requirements of the MTSA. Requires the DHS Secretary to coordinate with and complement other federal area security and response committees to provide a unified and effective federal security and response organizational infrastructure. [§6(a)] Office for Chemical Establishes under the DHS No comparable provision. Facility Security Assistant Secretary for Infrastructure Protection an office responsible for implementing and enforcing the Chemical Facility Anti-Terrorism Act. [§6(b)] General Authority to No comparable general provision. Authorizes the DHS Secretary and Regulate the EPA Administrator to promulgate such regulations as are necessary to carry out this Act. [§15] CRS-26 Provision S. 2145, as reported S. 2486, as introduced Regional Security Requires the DHS Secretary to No comparable provision. Offices establish in each Federal Emergency Management Agency (FEMA) region an Infrastructure Protection Regional Security Office, to carry out this Act and coordinate regional security. Requires each office to consist of DHS personnel in the Infrastructure Protection Office within the region, and regional security advisory staff, to be appointed by the DHS Secretary. Each such office must review and approve each Area Security Plan in the region, oversee implementation of this Act, and perform other functions as assigned by the DHS Secretary. [§6(c)] Area Security Requires the DHS Secretary, No comparable provision. Committees and within 6 months of enactment of Coordinators this Act, to designate geographic areas for area committees and planning. Requires that no area be larger than a single state, and all parts of the United States are to be included in such areas (except areas designated under MTSA, which shall not be included in any newly designated area). Allows areas to incorporate portions of more than one state. Establishes an Area Security Committee and a Coordinator for each designated area. Requires each Coordinator to conduct audits and inspections of, and provide guidance and support to, chemical sources in the area. [§6(d)] CRS-27 Provision S. 2145, as reported S. 2486, as introduced Area Security Plans Requires each Area Security No comparable provision. Committee, within 2 years of the date of enactment, to prepare and submit to the DHS Secretary an Area Security Plan for the area. Requires that plans coordinate resources, and coordinate with the National Infrastructure Protection Plan, National Response Plan, site security plans of chemical sources in the area, other national security and response plans, and Area Security Plans for contiguous areas. Requires the DHS Secretary to review and approve or require amendments to each Area Security Plan within 24 months of the date of enactment of this Act. [§6(d)] Exercises and Drills Requires the DHS Secretary to Requires the DHS Secretary and periodically conduct drills and the EPA Administrator, in exercises of security and response consultation with other federal capability in each area for which agencies and state and local an Area Security Plan is required, government officials, to and under the site security plan promulgate regulations requiring and emergency response plans of high-priority stationary sources to relevant chemical sources. participate in emergency Requires the DHS Secretary to preparedness exercises. Requires publish annual reports on drills, exercises to be structured based on including assessments of the the threat posed to the public by a effectiveness of plans. criminal release at a stationary [§6(e)] source. [§12] CRS-28 Provision S. 2145, as reported S. 2486, as introduced Employees' Safety and No comparable provision. Within 6 months of promulgation Security Committees of regulations under §5(a), requires the owner or operator of a stationary source with at least 15 employees to establish a safety and security committee of employees, including both non-managerial and managerial employees, which must meet at least monthly to identify, discuss, and make recommendations to the owner or operator concerning potential hazards and risks relevant to security, safety, health, and the environment. An existing health and safety committee may be designated to serve as the safety and security committee. Such committee shall participate in the development, review, and revision of the vulnerability assessment, hazard assessment, and prevention, preparedness, and response plan. [§7] Employee Training No comparable provision. Requires the owner or operator of a stationary source to annually provide each employee with 4 hours of training -- (1) regarding the requirements of the Chemical Security and Safety Act; (2) identifying and discussing substances of concern; (3) discussing the prevention, preparedness, and response plan for the stationary source; (4) identifying opportunities to reduce or eliminate the vulnerability of a stationary source to a criminal release through the use of the elements of "design, operation, and maintenance of safe facilities;" and (5) discussing appropriate emergency response procedures. [§8] CRS-29 Provision S. 2145, as reported S. 2486, as introduced Penalties for Non- Compliance Administrative Authorizes administrative Similar, but authorizes penalties of not more than administrative penalty orders of not $25,000 per day and not more more than $50,000 per day and not than $1,000,000 per year, for more than $2,000,000 per year, for failure to comply with an order or failure to comply with an order or directive issued by the DHS directive issued by the DHS Secretary, but only after the DHS Secretary under §10(a). Secretary has provided written notice of the proposed penalty and 30 days, during which the owner or operator may request a hearing. Civil Authorizes the DHS Secretary to Authorizes a U.S. district court to bring an action in a U.S. district issue civil penalties to owners or court against any owner or operators of facilities in high operator of a chemical source that priority categories of up to $50,000 violates or fails to comply with per day for violation or failure to any order or directive issued by comply with any compliance order the DHS Secretary or with a site issued under §10(a). security plan approved by the DHS Secretary. Authorizes the court to issue an order for injunctive relief and to award a civil penalty of not more than $50,000 per day. Criminal Authorizes a fine of up to $50,000 Authorizes a fine of between per day and/or imprisonment for $5,000 and $50,000 per day and/or up to 2 years for an owner or imprisonment for up to 2 years, the operator of a chemical source who first time that an owner or operator knowingly and willfully violates of a facility in a high priority any order issued by the DHS category knowingly violates or Secretary or fails to comply with fails to comply with a compliance an approved site security plan. order under §10(a). For [§8] subsequent violations or failures, authorizes fines not less than $10,000 nor more than $50,000 per day and/or imprisonment for up to 4 years. [§10(b)] Exemption from Exempts DHS from public Exempts DHS from public Federal Freedom of disclosure requirements of the disclosure requirements of FOIA Information Act federal Freedom of Information for "all documents provided to the (FOIA) Act (FOIA; 5 U.S. C. §552) for DHS Secretary under this Act, and "protected information." all information that describes a [§9(a)(1)] specific vulnerability or stationary source derived from those documents," except for certifications under §6(b), orders under §10(a), and best practices established under §13(4). [§11(a)] CRS-30 Provision S. 2145, as reported S. 2486, as introduced Exemption from Prohibits disclosure under FOIA No comparable provision. Federal Freedom of of (1) self-certifications by Information Act owners or operators under §4(b) (FOIA) (cont.) that a vulnerability assessment has been completed, and a site security plan and an emergency response plan have been developed and implemented; (2) DHS orders under §4(b)(3) requiring certification and submission, if an owner or operator fails to certify or to submit such documents; (3) DHS compliance certificates for individual facilities under §9(b)(2); and (4) the identity of any chemical source and its owner or operator for which any other order or any approval or disapproval is issued under this Act, including information identifying the applicable order, approval, or disapproval. Authorizes the DHS Secretary to Allows public disclosure of release to the public a information derived from certification under §4(b)(1) or information described in §11(a) if §9(b)(2), if the DHS Secretary it would not divulge trade secrets, finds that security risk would not identify any particular stationary be increased for a facility if the source, and "is not reasonably record were released. likely to increase the probability or [§9(b)(1)] consequences of a criminal release." [§11(d)] Protection of Exempts other federal agencies No comparable provision. Information by Other from disclosure requirements of Federal Agencies FOIA for "protected information." [§9(a)(2)] Protection of Exempts state and local Exempts state and local Information by State government agencies from government agencies from or Local Government disclosure requirements of state disclosure requirements of all Agencies and local laws for "protected federal, state, and local laws for information."[§9(a)(3)] "any documents provided by a stationary source under this Act, or any information that describes a specific vulnerability or stationary source derived from those documents," except for certifications under §6(b), orders under §10(a), and best practices established under §13(4). [§11(b)] CRS-31 Provision S. 2145, as reported S. 2486, as introduced Report to Congress Requires the DHS Secretary to No comparable provision. submit to Congress a public report on the performance of chemical sources (as a group) under the Act. [§9(b)(3)] Development of Requires the DHS Secretary, in Requires the DHS Secretary to Information consultation with the Director of develop within one year of the date Protection Protocols the Office of Management and of enactment of this Act protocols Budget and appropriate federal to protect information described in law enforcement and intelligence §11(a) from unauthorized officials, in a manner consistent disclosure. Requires protocols to with existing protections for be in effect before the date on sensitive or classified information, which the EPA Administrator to develop confidentiality receives any report under this Act. protocols for maintaining and [§11(c)] using records containing "protected information." Requires protocols to ensure, to No comparable provision. the maximum extent practicable, that information protected from public disclosure laws shall be maintained in a secure location and access shall be limited to persons granted access for the purpose of carrying out the Chemical Facility Anti-Terrorism Act. [§9(c)] Process for Reporting Requires the DHS Secretary to Requires the DHS Secretary to Problems establish a process by which any establish and publicize information person may submit a report to the regarding mechanisms through DHS Secretary regarding which any person may report an problems, deficiencies, or alleged violation of this Act or a vulnerabilities at a chemical threat to the health or safety of the source. Requires the DHS public. Secretary to provide guidance to [§14] employees as to how to make such disclosures without compromising security. Directs Government No comparable provision. Accountability Office (GAO) to report on the problems, deficiencies, or vulnerabilities reported and on the DHS Secretary's response to such information. Prohibits GAO from releasing protected information to the public unless the Secretary has released information under §9(b)(1). [§9(d), (k)] CRS-32 Provision S. 2145, as reported S. 2486, as introduced Whistle-blower Prohibits employers from Prohibits employers from Protection discriminating against a person discriminating against a person who submits a report to the DHS who: (1) notifies the employer, Secretary. Requires information DHS, or any other appropriate disclosure protocols to government agency of an alleged accommodate protections for violation of this Act or of a threat disclosures that are not prohibited to the health or safety of the public by law and are generally relating to chemical security or the permitted for federal employees improper release of any harmful who believe the information is chemical; (2) refuses to engage in evidence of a violation of law, unlawful activity; (3) testifies "gross mismanagement, a gross before Congress or at any relevant waste of funds, an abuse of federal or state proceeding; (4) authority, or a substantial and commences a proceeding for specific danger to public health or administration or enforcement of safety" [5 U.S.C. §2302(b)(8) and this Act; (5) testifies in any such §7211]. proceeding; or (6) assists in a proceeding or in any other action to carry out the purposes of this Act. Directs the DHS Secretary to keep No comparable provision. the identity of a person who submits such a report confidential. [§9(d)] No comparable provision. Authorizes an employee to file a complaint with the Secretary of Labor alleging discrimination in violation of this provision. Requires the Secretary of Labor to complete an investigation of the alleged violation and notify the complainant of the results within 30 days from the date on which the complaint was received. Within 90 days of receiving the complaint, the Secretary of Labor must issue an order providing relief or denying the complaint "on the record" after notice and opportunity for public hearing. Provides instructions regarding the basis for decisions by the Secretary of Labor. Authorizes a complainant to bring an action at law or equity for de novo review of a complaint in a district court, if the Secretary of Labor has not issued a final decision within one year after the date on which a complaint was filed. Any person adversely affected by an order may obtain review in a U.S. court of appeals. [§14] CRS-33 Provision S. 2145, as reported S. 2486, as introduced Whistle-blower No comparable provision. Authorizes the Secretary of Labor Protection (cont'd) to file a civil action in U.S. district court if a person has failed to comply with an order. Also authorizes any person on whose behalf the order was issued to commence a civil action against the person to whom the order was issued. Authorizes enforcement in a mandamus proceeding for any non-discretionary duty imposed by §14. [§14] Protection of Protects the right to make certain No comparable provision. Disclosure Rights and disclosures under current law or Obligations to a Special Counsel, inspector general, or other employees who might be designated by an agency head. Also protects the right or obligation of a chemical source, a non-governmental organization, or an individual to disclose records or copies of records in their possession. [§9(e)-(h)] Penalties for Requires that any officer or No comparable provision. Unauthorized employee of a federal, state, or Disclosure local government agency who knowingly discloses any record protected from disclosure be imprisoned for up to 1 year, fined, or both, and removed from federal office or employment. [§9(j)] State and Other Laws Protects the right of states and The Chemical Security and Safety political subdivisions to adopt or Act does not affect any duty or enforce requirements more other requirement imposed under stringent than requirements in any other federal, state, or local effect under the Chemical Facility law or any collective bargaining Anti-Terrorism Act, unless there agreement. is an actual conflict between a [§16] provision of this Act and the law of a state. [§10] CRS-34 Provision S. 2145, as reported S. 2486, as introduced National Strategy for Directs the DHS Secretary, within No comparable provision. Chemical Security 6 months of the date of enactment, to submit to the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Energy and Commerce an update of the national strategy for the chemical sector that was required to be submitted by February 10, 2006 to the Committee on Appropriations of the Senate and the Committee on Appropriations of the House of Representatives. [§11] GAO Review Directs the DHS Secretary to No comparable provision. provide access by the GAO to any document or information required to be submitted to, generated by, or otherwise in the possession of DHS under this Act. [§12] GAO Reports Requires GAO to provide No comparable provision. annually to the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Energy and Commerce a review of site security plans, vulnerability assessments, and emergency response plans under the Act and a determination of whether such plans and assessments are in compliance. [§12] CRS-35 Provision S. 2145, as reported S. 2486, as introduced Judicial Review Permits any person to file a No comparable provisions. petition with the U.S. Court of Appeals for the District of Columbia for judicial review of a rule within 60 days of promulgation. Directs the court to review rules in accordance with the Administrative Procedure Act (5 U.S.C. §701 et seq.). Allows only an owner or operator whose facility is affected by a final agency action to file a petition for judicial review of the action with an appropriate U.S. district court. Only the owner or operator and the Secretary could participate in such civil actions. Expressly prohibits any private civil actions against an owner or operator to enforce provisions of the Act. [§13] Ammonium Nitrate Directs the DHS Secretary, in No comparable provisions. consultation with the Secretary of Agriculture, to regulate the production and sale of ammonium nitrate to prevent misappropriation or use in violation of law. Requires registration of facilities and purchasers. Restricts sales to registered producers, sellers, and purchasers. Requires sales records to be maintained. Registration information is to be treated as protected information. Authorizes the DHS Secretary to establish a process for auditing handler records to determine compliance. Authorizes penalties for violations and compliance failures. Gives federal district courts jurisdiction over any action for civil damages against a handler for any harm or damage alleged to have resulted from use of ammonium nitrate in violation of law. [§14] Authorization of Authorizes such sums as are Similar, but funds remain available Appropriations necessary to carry out the Act. until expended. [§15] [§17] ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL33447