For other versions of this document, see http://wikileaks.org/wiki/CRS-RL33447
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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/].
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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.
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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
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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]
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