Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2019

IB Union Calendar No. 427 116TH CONGRESS 2D SESSION H. R. 3256 [Report No. 116–341, Part I] To amend the Homeland Security Act of 2002 to reauthorize and improve the Chemical Facility Anti-Terrorism Standards Program, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 13, 2019 Mr. RICHMOND (for himself and Mr. THOMPSON of Mississippi) introduced the following bill; which was referred to the Committee on Homeland Secu- rity, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the com- mittee concerned DECEMBER 12, 2019 Reported from the Committee on Homeland Security with an amendment [Strike out all after the enacting clause and insert the part printed in italic] SEPTEMBER 21, 2020 Committee on Energy and Commerce discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed [For text of introduced bill, see copy of bill as introduced on June 13, 2019] VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 3256 RH A BILL To amend the Homeland Security Act of 2002 to reauthorize and improve the Chemical Facility Anti-Terrorism Stand- ards Program, and for other purposes. VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6652 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 3256 RH Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the ‘‘Pro- 4 tecting and Securing Chemical Facilities from Terrorist At- 5 tacks Act of 2019’’. 6 (b) TABLE OF CONTENTS.—The table of contents for 7 this Act is as follows: 8 Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Chemical Facility Anti-Terrorism Standards Program. Sec. 4. Protection and sharing of information. Sec. 5. Civil enforcement. Sec. 6. Whistleblower protection. Sec. 7. Chemical Security Advisory Committee. Sec. 8. Implementation plan and report to Congress. Sec. 9. Study on risks posed by excluded facilities. Sec. 10. Study on feasibility of waiver program. Sec. 11. Review of tiering methodology. Sec. 12. Comptroller General reports. Sec. 13. Voluntary mechanism for reporting drones and other emerging threats. Sec. 14. Regulations regarding specific products and mixtures containing chemi- cals of interest. Sec. 15. Voluntary program. Sec. 16. Study on local emergency response capacity to respond to chemical secu- rity incidents. Sec. 17. Previously approved facilities. Sec. 18. Termination. SEC. 2. DEFINITIONS. 9 Section 2101 of the Homeland Security Act of 2002 10 (6 U.S.C. 621) is amended— 11 (1) in paragraph (4)(E), by striking ‘‘subject to 12 regulation’’ and inserting ‘‘regulated’’; 13 (2) in paragraph (5)— 14 (A) in subparagraph (A), by striking ‘‘that 15 is in effect on the day before the date of enact- 16 VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 3256 RH ment of the Protecting and Securing Chemical 1 Facilities from Terrorist Attacks Act of 2014;’’ 2 and inserting ‘‘or this title’’; and 3 (B) in subparagraph (B), by striking ‘‘that 4 is in effect on the day before the date of enact- 5 ment of the Protecting and Securing Chemical 6 Facilities from Terrorist Attacks Act of 2014;’’ 7 and inserting ‘‘or this title’’; 8 (3) by striking paragraphs (6), (7), and (8); and 9 (4) by redesignating paragraphs (9) through (14) 10 as paragraphs (6) through (11), respectively. 11 SEC. 3. CHEMICAL FACILITY ANTI-TERRORISM STANDARDS 12 PROGRAM. 13 (a) ADDITIONAL CFATS PROGRAM REQUIREMENT.— 14 Section 2102(a)(2) of such Act (6 U.S.C. 622) is amended— 15 (1) in subparagraph (C), by striking ‘‘and’’ at 16 the end; 17 (2) in subparagraph (D), by striking the period 18 and inserting ‘‘; and’’ ; and 19 (3) by adding at the end the following new sub- 20 paragraph: 21 ‘‘(E) verify information submitted by a cov- 22 ered chemical facility prior to assigning such fa- 23 cility a lower risk tier or determining that such 24 VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 3256 RH facility no longer presents a high level of security 1 risk.’’. 2 (b) EMPLOYEE INPUT REGARDING SECURITY MEAS- 3 URES.—Paragraph (2) of subsection (b) of section 2102 of 4 such Act (6 U.S.C. 622) is amended to read as follows: 5 ‘‘(2) EMPLOYEE CONSULTATION AND AWARE- 6 NESS.— 7 ‘‘(A) EMPLOYEE CONSULTATION REQUIRE- 8 MENT.—A facility’s security vulnerability assess- 9 ment and site security plan shall be developed in 10 consultation with— 11 ‘‘(i) at least one facility employee, in 12 addition to the facility security officer or 13 other individual who serves as a point of 14 contact under section 27.230(a)(17) of title 15 6, Code of Federal Regulations, and the cor- 16 responding guidance issued under section 17 27.220(d) of such title, or any successor 18 thereto, who possesses relevant knowledge, 19 experience, training, or education per- 20 taining to matters of site security. 21 ‘‘(ii) in the case of a facility where fa- 22 cility employees are represented by a bar- 23 gaining agent, at least one employee rep- 24 resentative who— 25 VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 3256 RH ‘‘(I) is selected by the bargaining 1 agent at that facility; and 2 ‘‘(II) has relevant knowledge, ex- 3 perience, training, or education per- 4 taining to matters of site security. 5 ‘‘(B) RECORD OF EMPLOYEE CONSULTA- 6 TION.—A covered chemical facility shall main- 7 tain a written record of the employee consulta- 8 tion required by subparagraph (A), including a 9 record of— 10 ‘‘(i) the name of the employee with 11 whom the facility security officer or other 12 similar official consulted; 13 ‘‘(ii) how often and when such con- 14 sultation took place; 15 ‘‘(iii) what mechanisms the facility 16 used to capture feedback; and 17 ‘‘(iv) any recommendations that were 18 offered, accepted, or rejected as part of the 19 security vulnerability assessment or site se- 20 curity plan. 21 ‘‘(C) ACCESS TO EMPLOYEES.—Each owner 22 or operator of a covered chemical facility shall, 23 upon request, provide to an employee of the De- 24 partment engaged in carrying out audits and in- 25 VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 3256 RH spections of such facility access to any employee 1 who participated in the development of the fa- 2 cility’s security vulnerability assessment and site 3 security plan. 4 ‘‘(D) EMPLOYEE AWARENESS.—The Sec- 5 retary shall produce a poster that a chemical fa- 6 cility of interest shall display in areas accessible 7 to facility employees to inform employees about 8 requirements under this title and the whistle- 9 blower protections provided under section 2105.’’. 10 (c) SITE SECURITY PLANS.— 11 (1) DISAPPROVAL.—Subsection (c)(1)(B) of sec- 12 tion 2102 of such Act (6 U.S.C. 622) is amended— 13 (A) in clause (i), by striking ‘‘and’’ at the 14 end; and 15 (B) by amending clause (ii) to read as fol- 16 lows: 17 ‘‘(ii) shall disapprove a site security 18 plan if— 19 ‘‘(I) the plan fails to satisfy the 20 risk-based performance standards es- 21 tablished pursuant to subsection 22 (a)(2)(C); or 23 ‘‘(II) the plan fails to include the 24 name, organizational affiliation, and 25 VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 3256 RH phone number of a local emergency 1 manager or local emergency response 2 provider and a documented policy to 3 contact the local emergency manager or 4 local emergency response provider at 5 least annually regarding emergency re- 6 sponse plans at the facility.’’. 7 (2) ASSESSMENTS.—Paragraph (3) of subsection 8 (c) of such section is amended to read as follows: 9 ‘‘(3) SITE SECURITY PLAN ASSESSMENTS.—In 10 approving or disapproving a site security plan under 11 this subsection, the Secretary shall— 12 ‘‘(A) employ the risk assessment policies 13 and procedures developed under this title; and 14 ‘‘(B) confirm that the covered chemical fa- 15 cility has complied with the employee consulta- 16 tion requirements in paragraph (2) of subsection 17 (b), including by reviewing and recording com- 18 pliance with the record-keeping requirements 19 under subparagraph (B) of that paragraph.’’. 20 (d) ELIMINATION OF EXPEDITED APPROVAL PRO- 21 GRAM.—Section 2102(c) of such Act (6 U.S.C. 622) is 22 amended by striking paragraph (4). 23 (e) AUDITS AND INSPECTIONS.— 24 VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 3256 RH (1) AUTHORITY TO CONDUCT.—Subparagraph 1 (B) of paragraph (1) of subsection (d) of section 2102 2 of such Act (6 U.S.C. 622) is amended by striking 3 ‘‘under this title using’’ and inserting ‘‘at chemical 4 facilities of interest and covered chemical facilities 5 and shall obtain information and records to ensure 6 compliance with this title. Such audits and inspec- 7 tions shall be conducted using’’. 8 (2) REPORTING STRUCTURE.—Subparagraph 9 (D) of such paragraph is amended— 10 (A) in clause (i), by inserting ‘‘, or any suc- 11 cessor organization that implements the require- 12 ments of subsection (a)(2),’’ after ‘‘Department’’; 13 and 14 (B) in clause (ii), by inserting ‘‘, or any 15 successor organization that implements the re- 16 quirements of subsection (a)(2),’’ after ‘‘Depart- 17 ment’’. 18 (3) STANDARDS FOR AUDITORS AND INSPEC- 19 TORS.—Subparagraph (E) of such paragraph is 20 amended— 21 (A) in the matter preceding clause (i)— 22 (i) by striking ‘‘The Secretary’’ and 23 inserting ‘‘For each individual responsible 24 VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 3256 RH for carrying out audits or inspections on be- 1 half of the Secretary, the Secretary’’; 2 (ii) by inserting ‘‘to ensure such indi- 3 viduals receive’’ before ‘‘the training’’; and 4 (iii) by striking ‘‘and retraining of 5 each individual used by the Department as 6 an auditor or inspector, including each in- 7 dividual employed by the Department and 8 all nondepartmental or nongovernmental 9 personnel’’ and inserting ‘‘, continuing edu- 10 cation, and other professional development 11 tools necessary to carry out duties and re- 12 sponsibilities’’; and 13 (B) in clause (i), by striking ‘‘require- 14 ments’’ and inserting ‘‘necessary to audit and 15 inspect compliance with all aspects of the risk- 16 based performance standards, including stand- 17 ards related to cybersecurity,’’; 18 (C) by redesignating clauses (vi) and (vii) 19 as clauses (vii) and (viii), respectively; and 20 (D) by inserting after clause (v) the fol- 21 lowing new clause: 22 ‘‘(vi) the proper credential or certifi- 23 cation necessary to conduct inspections re- 24 lated to the cybersecurity standard.’’. 25 VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 3256 RH (4) EMERGENCY RESPONSE PLANS.—Such sub- 1 section is further amended by adding at the end the 2 following new paragraph: 3 ‘‘(4) AUDIT OF EMERGENCY RESPONSE PLAN.— 4 As part of the audit and inspection process under this 5 subsection, the Secretary shall annually confirm com- 6 pliance of a chemical facility with the requirements 7 under subsection (c)(1)(B)(ii)(II) including adherence 8 to the facility’s documented policy to contact the local 9 emergency manager or local emergency response pro- 10 vider at least annually regarding emergency response 11 plans at the facility under such subsection.’’. 12 (f) RISK ASSESSMENT.—Section 2102(e) of such Act 13 (6 U.S.C. 622(e)) is amended— 14 (1) in paragraph (2)(B)— 15 (A) in the matter preceding clause (i), by 16 inserting ‘‘and other malicious acts’’ after ‘‘ter- 17 rorism’’; and 18 (B) in clause (ii), by striking ‘‘severe eco- 19 nomic consequences and the potential loss of 20 human life in the event of the facility being sub- 21 ject to attack, compromise, infiltration, or ex- 22 ploitation by terrorists’’ and inserting ‘‘con- 23 sequences in event of the facility being subject to 24 attack, compromise, infiltration, or the exploi- 25 VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 3256 RH tation of chemicals of interest by a terrorist or 1 other malicious actor’’; 2 (2) in paragraph (3)— 3 (A) in subparagraph (A)— 4 (i) by redesignating clauses (i) and (ii) 5 as clauses (ii) and (iii), respectively; 6 (ii) by inserting before clause (ii), as 7 so redesignated, the following new clause (i): 8 ‘‘(i) the Secretary determines that a 9 chemical facility of interest does not present 10 a high level of security risk;’’; and 11 (iii) in clause (iii), as so redesignated, 12 by inserting ‘‘or chemical facility of inter- 13 est’’ after ‘‘covered chemical facility’’; 14 (B) in subparagraph (B)— 15 (i) by striking ‘‘information on’’ and 16 all that follows and inserting ‘‘information 17 on—’’; and 18 (ii) by adding at the end the following 19 clauses: 20 ‘‘(i) how the Secretary confirmed the 21 information that was the basis for the 22 change or determination described in sub- 23 paragraph (A); and 24 VerDate Sep 11 2014 22:25 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\H3256.RH H3256 pamtmann on DSKBC07HB2PROD with BILLS 13 •HR 3256 RH ‘‘(ii) actions taken or practices em- 1 ployed by the facility to reduce or remove 2 terrorism-related chemical security risks, 3 where applicable.’’; and 4 (C) by adding at the end the following new 5 subparagraph: 6 ‘‘(C) TREATMENT OF CERTAIN INFORMA- 7 TION.—For the purposes of subsection (a) of sec- 8 tion 2103— 9 ‘‘(i) information described in subpara- 10 graph (B)(i) shall be given protections from 11 public disclosure under such subsection; and 12 ‘‘(ii) information described in subpara- 13 graph (B)(ii) shall not be given protections 14 fr [Text truncated for display. 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