[Federal Register Volume 76, Number 114 (Tuesday, June 14, 2011)]
[Notices]
[Pages 34720-34732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14382]


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DEPARTMENT OF HOMELAND SECURITY

[Docket No. DHS-2009-0026]


Chemical Facility Anti-Terrorism Standards Personnel Surety 
Program

AGENCY: National Protection and Programs Directorate, DHS.

ACTION: Response to comments received during 30-day comment period: New 
information collection request 1670-NEW.

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SUMMARY: The Department of Homeland Security (DHS or the Department), 
National Protection and Programs Directorate (NPPD), Office of 
Infrastructure Protection (IP), Infrastructure Security Compliance

[[Page 34721]]

Division (ISCD) has submitted an information collection request (ICR) 
to the Office of Management and Budget (OMB) for review and clearance 
in accordance with the Paperwork Reduction Act of 1995 (PRA). The 
information collection is a new information collection. A 60-day public 
notice for comments was previously published in the Federal Register on 
June 10, 2009, at 74 FR 27555. A 30-day public notice for comments was 
published in the Federal Register on April 13, 2010, at 75 FR 18850. In 
the 30-day notice the Department responded to comments received during 
the 60-day comment period. This notice responds to comments received 
during the 30-day notice. This process is conducted in accordance with 
5 CFR 1320.8.

FOR FURTHER INFORMATION: A copy of the ICR, with applicable supporting 
documentation, may be obtained through the Federal Rulemaking Portal at 
http://www.regulations.gov.

SUPPLEMENTARY INFORMATION 

Program Description

    The Chemical Facility Anti-Terrorism Standards (CFATS), 6 CFR Part 
27, require high-risk chemical facilities to submit information to the 
Federal government about facility personnel and, as appropriate, 
unescorted visitors with access to restricted areas or critical assets 
at those facilities. As part of the CFATS Personnel Surety Program this 
information will be vetted by the Federal government against the 
Terrorist Screening Database (TSDB) to identify known or suspected 
terrorists (KSTs). The TSDB is the Federal government's consolidated 
and integrated terrorist watchlist of known and suspected terrorists, 
maintained by the Department of Justice (DOJ) Federal Bureau of 
Investigation's (FBI) Terrorist Screening Center (TSC). For more 
information on the TSDB, see DOJ/FBI--019 Terrorist Screening Records 
System, 72 FR 47073 (August 22, 2007).
    High-risk chemical facilities must also perform three other types 
of background checks in order to comply with CFATS' Personnel Surety 
Risk-Based Performance Standard 12 (RBPS-12). See 6 CFR 
27.230(a)(12)(i)-(iii): High-risk chemical facilities must ``perform 
appropriate background checks * * * including (i) Measures designed to 
verify and validate identity; (ii) Measures designed to check criminal 
history; [and] (iii) Measures designed to verify and validate legal 
authorization to work.'' These three other types of background checks 
are not the subjects of this notice, nor are they subjects of the 
underlying ICR or of the 30- or 60-day notices preceding this notice. 
The CFATS Personnel Surety Program is not intended to halt, hinder, or 
replace these three other types of background checks, nor is it 
intended to halt, hinder, or replace high-risk chemical facilities' 
performance of background checks which are currently required for 
employment or access to secure areas of those facilities.

Background

    On October 4, 2006, the President signed the DHS Appropriations Act 
of 2007 (the Act), Public Law 109-295. Section 550 of the Act (Section 
550) provides DHS with the authority to regulate the security of high-
risk chemical facilities. DHS has promulgated regulations implementing 
Section 550, the Chemical Facility Anti-Terrorism Standards, 6 CFR Part 
27.
    Section 550 requires that DHS establish Risk Based Performance 
Standards (RBPS) as part of CFATS. RBPS-12 (6 CFR 27.230(a)(12)(iv)) 
requires that regulated chemical facilities implement ``measures 
designed to identify people with terrorist ties.'' The ability to 
identify individuals with terrorist ties is an inherently governmental 
function and requires the use of information held in government-
maintained databases, which are unavailable to high-risk chemical 
facilities. Therefore, DHS is implementing the CFATS Personnel Surety 
Program, which will allow chemical facilities to comply with RBPS-12 by 
implementing ``measures designed to identify people with terrorist 
ties.''
    DHS has submitted the proposed information collection for the CFATS 
Personnel Surety Program to OMB for review and clearance in accordance 
with the Paperwork Reduction Act of 1995.

Overview of CFATS Personnel Surety Process

    The CFATS Personnel Surety Program will work with the DHS 
Transportation Security Administration (TSA) to identify individuals 
who have terrorist ties by vetting information submitted by each high-
risk chemical facility against the TSDB.
    High-risk chemical facilities or their designees will submit the 
information of: (1) Facility personnel who have or are seeking access, 
either unescorted or otherwise, to restricted areas or critical assets; 
and (2) unescorted visitors who have or are seeking access to 
restricted areas or critical assets. These persons, about whom high-
risk chemical facilities and facilities' designees will submit 
information to DHS, are referred to in this notice as ``affected 
individuals.'' \1\
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    \1\ Individual high-risk facilities may classify particular 
contractors or categories of contractors either as ``facility 
personnel'' or as ``visitors.'' This determination should be a 
facility-specific determination, and should be based on facility 
security, operational requirements, and business practices.
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    Information will be submitted to NPPD through the Chemical Security 
Assessment Tool (CSAT), the online data collection portal for CFATS. 
The high-risk chemical facility or its designees will submit the 
information of affected individuals to DHS through CSAT. The submitters 
of this information (``Submitters'') for each high-risk chemical 
facility will also affirm, to the best of their knowledge, that the 
information is: (1) True, correct, and complete; and (2) collected and 
submitted in compliance with the facility's Site Security Plan (SSP) or 
Alternative Security Program (ASP), as reviewed and authorized and/or 
approved in accordance with 6 CFR 27.245. The Submitter(s) of each 
high-risk chemical facility will also affirm that, in accordance with 
their Site Security Plans, notice required by the Privacy Act of 1974, 
5 U.S.C. 552a, has been given to affected individuals before their 
information is submitted to DHS.
    DHS will send a verification of receipt (previously referred to as 
a ``verification of submission'' in the 60-day and 30-day notices) to 
the submitter(s) of each high-risk chemical facility when a high-risk 
chemical facility: (1) Submits information about an affected individual 
for the first time; (2) submits additional, updated, or corrected 
information about an affected individual; and/or (3) notifies DHS that 
an affected individual no longer has or is seeking access to that 
facility's restricted areas or critical assets.
    Upon receipt of each affected individual's information in CSAT, 
NPPD will send a copy of the information to TSA. Within TSA, the Office 
of Transportation Threat Assessment and Credentialing (TTAC) conducts 
vetting against the TSDB for several DHS programs. TTAC will compare 
the information of affected individuals collected by DHS (via CSAT) to 
information in the TSDB. TTAC will forward potential matches to the 
TSC, which will make a final determination of whether an individual's 
information is identified as a match to a record in the TSDB.
    In the event that an affected individual's information is confirmed 
to match a record in the TSDB (which DHS refers to as a ``match to the 
TSDB,'' or

[[Page 34722]]

simply as a ``match''), the TSC will notify NPPD and the appropriate 
Federal law enforcement agency for coordination, investigative action, 
and/or response, as appropriate. NPPD will not routinely provide 
vetting results to high-risk chemical facilities nor will it provide 
results to an affected individual whose information has been submitted 
by a high-risk chemical facility. As warranted, high-risk chemical 
facilities may be contacted by DHS or Federal law enforcement agencies 
as part of law enforcement investigation activity.

Information Collected

    DHS may collect the following information about affected 
individuals:
     Full name;
     Aliases;
     Date of birth;
     Place of birth;
     Gender;
     Citizenship;
     Passport information;
     Visa information;
     Alien registration number;
     DHS Redress Number (if available).
    For purposes of clarifying the exact data points which will be 
routinely collected as part of the CFATS Personnel Surety Program, the 
Department offers the following data clarification to the public. Under 
this information collection, the Department will require that high-risk 
chemical facilities submit the following information about affected 
individuals that are U.S. Citizens and Lawful Permanent Residents, for 
vetting against the TSDB:
    a. Full name;
    b. Date of birth; and
    c. Citizenship or Gender.
    The Department will require that high-risk chemical facilities 
submit the following information about affected individuals that are 
Non-U.S. Persons, for vetting against the TSDB:
    a. Full name;
    b. Date of birth;
    c. Citizenship; and
    d. Passport information and/or alien registration number.
    To reduce the likelihood of false positives in matching against the 
TSDB, high-risk chemical facilities may also (optionally) submit the 
following information about affected individuals:
    a. Aliases;
    b. Gender (for Non-U.S. persons);
    c. Place of birth; and
    d. DHS Redress Number.
    In lieu of conducting new TSDB vetting of an affected individual, 
DHS may collect information to verify that an affected individual is 
currently enrolled in a DHS program that also requires a TSDB check 
equivalent to the TSDB vetting performed as part of the CFATS Personnel 
Surety Program. For purposes of clarifying the exact data points which 
will be routinely collected as part of the CFATS Personnel Surety 
Program, the Department offers the following data clarification to the 
public. To verify enrollment in a DHS screening program, the high-risk 
chemical facility must submit the affected individual's:
    a. Full Name;
    b. Date of Birth; and
    c. Program-specific information or credential information, such as 
unique number, or issuing entity (e.g., State for Commercial Driver's 
License with an Hazardous Materials Endorsement).
    When verifying enrollment in a DHS screening program, the high-risk 
chemical facility may also (optionally) submit the affected 
individual's:
    a. Aliases;
    b. Place of birth;
    c. Gender;
    d. Citizenship; and
    e. DHS Redress Number.
    If high-risk chemical facilities find it administratively easier to 
submit to DHS the routine vetting information of an affected 
individual, even if the affected individual has been previously vetted, 
facilities may do so. In that case, DHS will vet affected individuals 
against the TSDB, and will not seek to verify an affected individual's 
enrollment in TWIC, HME, NEXUS, SENTRI or FAST.
    DHS will collect information that identifies the high-risk chemical 
facility or facilities, to which the affected individual has or is 
seeking access to restricted areas or critical assets.
    DHS may contact a high-risk chemical facility to request additional 
information (e.g., visa information) pertaining to particular 
individuals in order to clarify suspected data errors or resolve 
potential matches (e.g., in situations where an affected individual has 
a common name). Such requests will not imply, and should not be 
construed to indicate, that an individual's information has been 
confirmed as a match to a TSDB record.
    In the event that a confirmed match is identified as part of the 
CFATS Personnel Surety Program, DHS may obtain references to and/or 
information from other government law enforcement and intelligence 
databases, or other relevant databases that may contain terrorism 
information.
    DHS may collect information necessary to assist in tracking 
submissions and transmission of records, including electronic 
verification that DHS has received a particular record.
    DHS may also collect information about points of contact at each 
high-risk chemical facility, and which points of contact the Department 
or Federal law enforcement personnel may contact with follow-up 
questions. A request for additional information from DHS does not 
imply, and should not be construed to indicate, that an individual is 
known or suspected to be associated with terrorism.
    DHS may also collect information provided by individuals or high-
risk chemical facilities in support of any redress requests or any 
adjudications initiated under CFATS.
    DHS may request information pertaining to affected individuals, 
previously provided to DHS by high-risk chemical facilities, in order 
to confirm the accuracy of that information, or to conduct data 
accuracy reviews and audits as part of the CFATS Personnel Surety 
Program.
    DHS will also collect administrative or programmatic information 
(e.g., affirmations or certifications of compliance, extension 
requests, brief surveys for process improvement, etc.) necessary to 
manage the CFATS Personnel Surety Program.
    The Department will also collect information that will allow high-
risk chemical facilities to manage their data submissions. 
Specifically, the Department will make available to high-risk chemical 
facilities two blank data fields. These blank data fields may be used 
by a high-risk chemical facility to assign each record of an affected 
individual a unique designation or number that is meaningful to the 
high-risk chemical facility. Collecting this information will enable a 
high-risk chemical facility to manage the electronic records it submits 
into CSAT. Entering this information into CSAT will be completely 
voluntary, and is intended solely to enable high-risk chemical 
facilities to search through, sort, and manage the electronic records 
they submit into.

Responses to Comments Received During the CFATS Personnel Surety 
Program ICR 30-Day Comment Period

    The Department received 20 comments in response to the 30-day 
notice for comment. Comments were received from eight private sector 
companies; nine associations; one training council; one union; and one 
council composed of chemical industry trade associations. Many of the 
comments were in response to the questions posed by the Department in 
the 30-day notice for comments. The Department first addresses comments 
responding to questions posed in the 30-day notice, and then responds 
to

[[Page 34723]]

unsolicited comments received in response to the 30-day notice.

(A) On Behalf of OMB, DHS Solicited Comments That Evaluate Whether the 
Proposed Collection of Information Is Necessary for the Proper 
Performance of the Functions of the Agency, Including Whether the 
Information Will Have Practical Utility

    Comment: The Department received several comments addressing 
whether the proposed collection of information had any practical 
utility. One commenter suggested that the CFATS Personnel Surety 
Program does not provide owners or operators of regulated facilities 
with a value-added tool to screen potential personnel, contractors, and 
visitors or to identify potential security risks. Another commenter 
suggested that the proposed program is a one-way process that provides 
information to the Department on personnel with access to restricted 
areas, without any feedback provided to the owners or operators of 
regulated facilities on their personnel. In contrast, one commenter 
stated that, ``[i]n the context of CFATS requirements for personal 
surety and protecting the nation's chemical infrastructure, the 
consolidated and integrated terrorist watchlist, even with [its] 
limitations * * * is likely the best check for potential terrorists by 
DHS compared to other methods and information.''
    Response: The CFATS Personnel Surety Program is necessary for the 
proper performance of the functions of the Department, including 
protecting chemical facilities and the nation from terrorist attacks. 
DHS will perform this responsibility by identifying individuals with 
terrorist ties that have or are seeking access to restricted areas or 
critical assets at high-risk chemical facilities. The CFATS Personnel 
Surety Program also has practical utility--enabling the Federal 
government to take appropriate follow-up action if it determines that 
known or suspected terrorists have or seek access to restricted areas 
or critical assets at high-risk chemical facilities.
    Comment: One commenter stated that the information collection and 
vetting processes described in the 30-day notice appeared to be an 
attempt to shift responsibility from the government to the private 
sector. The commenter suggested that the 30-day notice read as though 
facilities will assist the Federal government in the performance of 
anti-terrorism duties.
    Response: High-risk chemical facilities will submit information 
pertaining to affected individuals to DHS as part of the CFATS 
Personnel Surety Program. In the preamble to the CFATS Interim Final 
Rule (IFR), DHS stated that background checks identifying individuals 
with terrorist ties, required by 6 CFR 27.230(a)(12)(iv), can only be 
achieved by conducting vetting against the TSDB. See 72 FR 17709 (Apr. 
9, 2007). Determining whether individuals' information matches a record 
in the TSDB necessarily includes checks of data sets that are not 
commercially available. The design of the CFATS Personnel Surety 
Program will allow high-risk chemical facilities to comply with 6 CFR 
27.230(a)(12)(iv) by submitting information necessary for DHS to 
conduct vetting against the TSDB.
    Comment: DHS received comments regarding individuals who have 
previously undergone TSDB vetting equivalent to CFATS Personnel Surety 
Program TSDB vetting, and who have been subsequently issued and 
currently maintain active, valid credentials or endorsements (e.g., 
Transportation Worker Identification Credentials) as a result of that 
previous vetting. Commenters stated that the Department's collection of 
information from facilities about these affected individuals: (1) 
Serves no security purpose; (2) means that the Department is not 
granting TSDB vetting reciprocity between its own programs; and (3) is 
redundant, particularly in situations where commenters believe that 
other DHS credentialing programs have more stringent vetting criteria 
than CFATS. Several commenters requested clarification on which Federal 
credentialing programs the Department will recognize as conducting TSDB 
checks equivalent to CFATS Personnel Surety Program TSDB checks.
    Response: The 30-day notice reiterated the Department's position, 
first outlined in the preamble to the IFR, that DHS supports the 
sharing and reuse of vetting results. See 72 FR 17709 (Apr. 9, 2007). 
An affected individual will not need to undergo additional vetting as 
part of the CFATS Personnel Surety Program if he/she has successfully 
undergone TSDB vetting, and possesses a valid credential or 
endorsement, as part of the Department's Transportation Worker 
Identification Credential (TWIC) program, Hazardous Materials 
Endorsement (HME) program, NEXUS program, Secure Electronic Network for 
Travelers Rapid Inspection (SENTRI) program, or Free and Secure Trade 
(FAST) program. DHS must collect a limited amount of information for 
that affected individual, however, to determine that the affected 
individual is currently enrolled in an above-listed DHS program. This 
information is necessary (1) To verify that the affected individual is 
currently enrolled in the DHS program, and (2) to enable DHS to access 
both the original enrollment data and the TSDB vetting results already 
in the possession of the Department, when necessary. The following 
information is necessary to verify an affected individual's enrollment 
in a DHS program:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              TWIC                     HME                   NEXUS                  SENTRI                  FAST
--------------------------------------------------------------------------------------------------------------------------------------------------------
Name...............................  Required..............  Required..............  Required.............  Required.............  Required.
Date of Birth......................  Required..............  Required..............  Required.............  Required.............  Required.
Unique Credential Information......  --TWIC Serial Number:   --Commercial Driver's   --PASS Number:         --PASS Number:         --PASS Number:
                                      Required.               License (CDL) Issuing   Required.              Required.              Required.
                                     --Expiration Date:       State(s): Required.    --Expiration Date:     --Expiration Date:     --Expiration Date:
                                      Required..             --CDL Number:            Required..             Required..             Required.
                                                              Required..
                                                             --Expiration Date:
                                                              Required..
--------------------------------------------------------------------------------------------------------------------------------------------------------

    If DHS cannot confirm an affected individual's current enrollment 
in one of the previously mentioned programs, or if previous vetting 
results cannot be verified, DHS will either: (1) Notify the high-risk 
chemical facility that the Department could not verify that the 
affected individual is currently enrolled in a DHS program; and/or (2) 
vet the affected individual against the TSDB. When a high-risk chemical 
facility is notified that the Department could not

[[Page 34724]]

verify that the affected individual is currently enrolled in a DHS 
program, the high-risk chemical facility must either: (1) Submit 
additional information, which corrects or updates the previous 
information to verify enrollment; or (2) provide sufficient information 
for the Department to conduct vetting of the affected individual 
against the TSDB. Such notifications from DHS will not imply, and 
should not be construed to indicate, that an individual has been 
confirmed as a match to the TSDB.
    If high-risk chemical facilities find it administratively easier to 
submit information about affected individuals for vetting against the 
TSDB (rather than leveraging previous vetting against the TSDB), high-
risk chemical facilities may do so. In that case, DHS will vet affected 
individuals against the TSDB, and will not seek to verify an affected 
individual's enrollment in TWIC, HME, NEXUS, SENTRI, or FAST.
    Comment: Several commenters suggested that the Department was not 
following recently-issued White House recommendations to promote 
comparability and reciprocity across credentialing and screening 
programs. One commenter specifically referred to Recommendation 16 of 
the Surface Transportation Security Priority Assessment, which 
recommends that the Federal government ``Create a more efficient 
Federal credentialing system by reducing credentialing redundancy, 
leveraging existing investments, and implementing the principle of 
`enroll once, use many' to reuse the information of individuals 
applying for multiple access privileges.'' See The White House (March 
2010), http://www.whitehouse.gov/sites/default/files/rss_viewer/
STSA.pdf.
    Response: The design of the CFATS Personnel Surety Program aligns 
with the recommendations of the Surface Transportation Security 
Priority Assessment.
    In discussions with high-risk chemical facilities, DHS has 
discovered that the concept of ``enroll once, use many'' may have been 
misinterpreted by commenters as meaning that an individual should only 
need to submit information to DHS once, and that DHS should never 
collect information from that individual again. DHS, however, defines 
the ``enroll once, use many'' concept as the ability to reuse 
previously-submitted program enrollment information and/or vetting 
results, upon collection of sufficient information to confirm an 
individual's prior enrollment in a DHS program or prior vetting 
results. High-risk chemical facilities will have to submit affected 
individuals' personal data to DHS as part of the CFATS Personnel Surety 
Program in order for DHS to reuse previously-submitted enrollment 
information and previous vetting results. The CFATS Personnel Surety 
Program will require only the minimum information necessary to verify 
affected individuals' enrollments in the TWIC, HME, NEXUS, SENTRI, and 
FAST programs.
    Comment: Several commenters suggested that it may be reasonable for 
DHS to require chemical facilities to perform visual inspections of 
TWICs and other existing credentials, but that requiring chemical 
facilities to submit data pertaining to affected individuals possessing 
such other credentials would not serve any legitimate security purpose. 
Further, one commenter stated that facilities not regulated under the 
Maritime Transportation Security Act (MTSA) should not be expected to 
obtain ``readers'' for TWIC credentials.
    Response: As previously discussed, DHS will collect information 
about affected individuals who are currently enrolled in certain DHS 
programs with equivalent TSDB vetting to verify that each affected 
individual is currently enrolled in the TWIC, HME, NEXUS, SENTRI, and/
or FAST programs.
    DHS agrees that there is no expectation or requirement that non-
MTSA facilities be equipped with TWIC readers. DHS also emphasizes that 
TWICs are not required for persons accessing facilities regulated by 
CFATS. High-risk chemical facilities may, however, choose to leverage 
TWIC credentials as part of the identity, legal authorization to work, 
and criminal history background checks they perform as part of 6 CFR 
27.230(a)(12)(i)-(iii). The precise manners in which high-risk chemical 
facilities could leverage TWIC credentials as part of identity, legal 
authorization to work, and criminal history background checks could 
vary from facility to facility, and should be described in individual 
facilities' SSPs. The precise manners in which facilities could 
leverage TWIC credentials as part of these other background checks are 
beyond the scope of this Paperwork Reduction Act response to comments.
    Comment: Several commenters suggested that the Department should 
accept vetting results from other Federal agencies, namely the Bureau 
of Alcohol, Tobacco, Firearms, and Explosives (ATF), which conduct 
vetting against the TSDB. Commenters suggested that without this 
accommodation, the Department would impose unreasonable burdens on a 
segment of the community regulated by more than one Federal agency 
without any corollary enhancement to security.
    Response: ATF conducts point-in-time vetting against the TSDB, 
which means that ATF's checks are conducted at only specified times, 
not on a recurrent basis. Recurrent vetting is a DHS best practice, and 
compares an affected individual's information against new and/or 
updated TSDB records as new and/or updated records become available.

(B) On Behalf of OMB, DHS Solicited Comments Which Evaluate the 
Accuracy of the Department's Estimate of the Burden of the Proposed 
Collection of Information, Including the Validity of the Methodology 
and Assumptions Used

    Comment: The Department received comments which supported the 
proposed CFATS Personnel Surety Program information submission 
schedule, published in the Federal Register on April 13, 2010, at 75 FR 
18853, as part of the Department's 30-day notice. The Department also 
received comments raising the point that the proposed schedule would 
create situations in which an affected individual's name will be 
submitted to DHS after he/she no longer has access to a high-risk 
chemical facility. Several commenters highlighted this issue by 
pointing out that commercial delivery companies may not always send the 
same driver to a high-risk chemical facility.
    Response: Based in part on commenters' concerns, DHS will revise 
the proposed information submission schedule previously published in 
the 30-day notice. The revised schedule will be published in the 
Federal Register and/or disseminated to high-risk chemical facilities 
individually, and will align with the RBPS Metric 12.1 for ``new/
prospective employees [facility personnel] & unescorted visitors.'' 
(See Table 17 in the May 2009 Risk Based Performance Standards 
Guidance, http://www.dhs.gov/xlibrary/assets/chemsec_cfats_riskbased_performance_standards.pdf.) Specifically, the revised 
schedule will require high-risk chemical facilities to submit the 
information of new affected individuals prior to access to restricted 
areas or critical assets. The Department is considering whether to 
establish that high-risk chemical facilities be required to submit the 
information at least 48 hours prior to access to restricted areas or 
critical assets. The Department may, on a case by case basis, allow for 
variances from the schedule.
    In response to the comments received about commercial delivery 
drivers, DHS reminds the public that RBPS-12

[[Page 34725]]

applies only to facility personnel with access to a high-risk chemical 
facility's restricted areas or critical assets, and to unescorted 
visitors with access to a high-risk chemical facility's restricted 
areas or critical assets. Situations that require visitors to generally 
access a high-risk chemical facility will not result in submission of 
information for vetting under the CFATS Personnel Surety Program if the 
visitors do not have access to restricted areas or critical assets, or 
if the visitors are escorted through restricted areas and critical 
assets. If commercial delivery drivers visiting high-risk chemical 
facilities are escorted, or if they do not have access to restricted 
areas or critical assets in the first place, then they will not be 
affected individuals and will not be vetted under the CFATS Personnel 
Surety Program.
    If a high-risk chemical facility opts to allow visitors (e.g., 
commercial truck drivers) unescorted access to its restricted areas or 
critical assets, the visitors will be considered affected individuals 
and the facility will be required to both (1) Perform background checks 
on the unescorted visitors as required under 6 CFR 27.230(a)(12)(i)-
(iii), and (2) submit information pertaining to those visitors to the 
Department to identify individuals with terrorist ties. The Department 
recognizes that this may, or may not, necessitate changes in business 
operations of high-risk chemical facilities.
    Comment: Many commenters suggested the Department did not 
accurately estimate the burden to high-risk chemical facilities because 
it underestimated the affected population. The commenters suggested a 
total population of 10,000,000 affected individuals, rather than the 
Department's estimate of 1,063,200 affected individuals. Using the 
Department's estimated time per respondent of 0.59 hours, commenters 
estimated 6,000,000 burden hours. The majority of commenters used an 
average hourly rate of $20.00. Commenters estimated that total annual 
cost of the CFATS Personnel Surety Program would be $120,000,000.
    Response: DHS disagrees with several of the commenters' assumptions 
that resulted in the $120,000,000 estimate. First, commenters suggested 
that the ICR estimate of 1,063,200 total respondents (i.e., affected 
individuals) did not account for agricultural retail or distribution 
facilities that cannot isolate restricted areas or critical assets to a 
limited number of employees or visitors. In the CFATS Regulatory 
Assessment the Department approximated compliance costs through the use 
of model facility categories. See CFATS Regulatory Assessment, section 
5.1 (Apr. 1, 2007), http://www.regulations.gov/#!documentDetail;D=DHS-
2006-0073-0116. Model facility categories were created using four 
variables: (1) To which of the four risk-based tiers a covered facility 
is assigned; (2) whether a covered facility is ``enclosed'' (inside a 
building) or ``open'' (not inside a building); (3) the size of a 
covered facility (large or small); and (4) whether the chemicals at a 
covered facility are at risk of theft or diversion for subsequent use 
as weapons or weapons components. These variables provided the 
Department with 16 variations for which different estimates could be 
approximated. See CFATS Regulatory Assessment at 23, table 15 (Apr. 1, 
2007). Several of the variations of these model facility categories, 
notably Tier 4 Groups A, B, and C, do account for agricultural retail 
or distribution facilities that cannot isolate restricted areas or 
critical assets to a limited number of employees or visitors. 
Therefore, the Department believes that the information collection does 
reasonably account for agricultural retail or distribution facilities 
that cannot isolate restricted areas or critical assets to a limited 
number of facility personnel or unescorted visitors.
    Second, some commenters assumed that the Department failed to 
account for respondents at facilities that would be required to submit 
Top-Screen consequence assessments to DHS if the ``indefinite time 
extension'' issued by the Department on January 9, 2008 is lifted. The 
Department disagrees with the commenters because the total respondent 
estimate used by the Department was derived from the CFATS Regulatory 
Assessment, which was published (on April 1, 2007) prior to the 
``indefinite time extension'' (issued on January 9, 2008). The CFATS 
Regulatory Assessment assumed the inclusion of these facilities when 
estimating the population of individuals affected by Personnel Surety 
costs.
    The third assumption that commenters used to support an estimated 
total number of 10,000,000 affected individuals was that the Department 
should include the population of individuals working at approximately 
3,200 MTSA-regulated facilities in its estimate of the population of 
affected individuals. The Department is precluded from including any 
population in the total number of respondents explicitly excluded from 
regulation under CFATS. MTSA facilities are excluded from regulation 
under CFATS by Section 550.
    Commenters also suggested that many high-risk facilities in the 
retail segment could see large numbers of visitors (i.e., customers) 
entering facilities during peak retail times of the year. The 
commenters suggested that depending on how the Department defines 
``unescorted visitor,'' the total annual number of respondents could be 
an order of magnitude greater than the 354,400 figure estimated by the 
agency. Commenters did not specify any order of magnitude, so the 
Department assumed that commenters were suggesting that during peak 
times of the year the Department should estimate an increase of one 
order of magnitude (i.e., 3,189,600 affected individuals) above the 
Department's current annual population estimate.\2\ The Department does 
not believe that high-risk chemical facilities in the retail segment 
will opt to conduct the other background checks required under 6 CFR 
27.230(a)12(i)-(iii) on these individuals due to the cost and burden 
that would place on the high-risk chemical facility. Hence, high-risk 
chemical facilities in the retail segment will likely ensure, through 
their access controls, that customers will not become affected 
individuals. Therefore, the Department has chosen not to modify the 
total number of respondents based upon peak retail times of the year.
---------------------------------------------------------------------------

    \2\ The estimate of 3,189,600 affected individuals is derived 
from [(354,000 affected individuals x 10)--354,400 affected 
individuals]
---------------------------------------------------------------------------

    The Department has concluded that the comments which estimated that 
the total annual cost on the regulated community of the CFATS Personnel 
Surety Program would be $120,000,000 were based on inaccurate 
assumptions.
    Comment: One commenter stated that it conducted a study of twelve 
industry members and subsequently concluded the Department had 
significantly underestimated the burden on the industry.
    Response: The Department requested from the commenter, and was 
subsequently provided, the survey data underlying the study referenced 
in the commenter's response. The survey requested information and 
specific numeric data from 34 facilities (owned and operated by 12 
industry members). The facilities ranged from a small research facility 
to several large facilities. The Department concluded that an increase 
in the estimated number of respondents was justified, based on the 
survey data received.
    The Department has concluded that the type of facilities surveyed 
generally aligned with Group A facilities (described in section 5.1 of 
the CFATS

[[Page 34726]]

Regulatory Assessment). Based on the survey, and based on a brief 
description of facilities responding to the survey, the Department 
increased, for the purposes of this ICR, the estimate of Group A 
facilities by an order of magnitude thus matching the results of the 
survey.
    In reviewing the comments, as well as the survey data provided, the 
Department identified a minor computational error when calculating the 
total annual number of respondents in the 60-day and 30-day notices. 
Specifically, the Department in the 30-day and 60-day notices 
improperly assumed that total number of respondents as 1,063,200 
affected individuals over a three-year period. Rather in the CFATS 
Regulatory Assessment the Department had assumed the total population 
of individuals to be screened at 1,063,200 with an additional annual 
turnover that resulted in an additional 177,290 respondents during the 
second and third years. Therefore, in the 60-day and 30-day notices the 
Department should have estimated a total number of respondents over 
three years as 1,417,780 resulting in 472,593 annual number of 
respondents.
    In accounting for this minor computational error, and for the 
increase of Group A facilities by an order of magnitude, the Department 
has revised its average total annual number of respondents from 354,400 
to 1,303,700. As a consequence, the estimated time per respondent 
(i.e., total burden hours/number of respondents) was revised from 0.59 
hours to 0.54 hours.
    Comment: Three of the four commenters that analyzed the estimated 
costs outlined in the 30-day notice suggested an appropriate wage rate 
of $20 per hour while the fourth commenter suggested the wage rate 
would range between $20 and $40 per hour.
    Response: Based upon the commenters' suggestions, the Department 
has modified the wage rate. Since comments on the appropriate wage rate 
ranged from $20 to $40 per hour, we picked the midpoint of $30 for our 
hourly wage rate. To account for the cost of employee benefits such as 
paid leave, insurance, retirement, etc., we multiplied the base wage 
rate of $30 by 1.4 to arrive at a fully loaded wage rate of $42 per 
hour.\3\ The updated analysis and costs submitted to OMB as part of the 
CFATS Personnel Surety Program ICR are reflected at the conclusion of 
this notice.
---------------------------------------------------------------------------

    \3\ The average hourly wage rate previously used by the 
Department in the 30-day and 60-day notices was $84. This average 
hourly wage rate was based upon the hourly wage rate estimate for 
Site Security Officers (SSO) contained in section 6.3.1 of the CFATS 
Regulatory Assessment, adjusted to account for passage of time since 
publication of the Regulatory Assessment. See CFATS Regulatory 
Assessment (Apr. 1, 2007), http://www.regulations.gov/#!documentDetail;D=DHS-2006-0073-0116.
---------------------------------------------------------------------------

    Comment: Many commenters suggested that the Department did not 
accurately estimate the burden because the estimate was limited to 
those activities listed in 5 CFR 1320.3(b)(1). Commenters suggested 
that such a limit does not account for unnecessary investigations, or 
for justified or unjustified adverse employment decisions that could 
result from a person's possibly unjustified presence on the TSDB. One 
commenter expressed concern that the Department's estimate did not 
account for the burden on affected individuals whose information 
matches that of records in the TSDB, but who are not in fact 
terrorists.
    Response: The activities which the Department must account for when 
estimating the burden of an ICR are limited in scope to those 
activities listed in 5 CFR 1320.3(b)(1). Specifically, 5 CFR 
1320.3(b)(1) requires the Department to estimate the total time, 
effort, or financial resources expended by persons to generate, 
maintain, retain, disclose, or provide information to or for a Federal 
agency. The potential burden described by the commenters is not related 
to the burden high-risk chemical facilities incur in collecting and 
submitting the information of affected individuals to DHS, nor is it 
within the scope of the activities listed in 5 CFR 1320.3(b)(1).

(C) On Behalf of OMB, DHS Solicited Comments To Enhance the Quality, 
Utility, and Clarity of the Information To Be Collected

    Comment: One commenter suggested that requiring covered facilities 
to collect, submit and maintain affected individuals' information 
creates a situation subject to data entry errors and presents a 
significant challenge to maintain current information.
    Response: The Department has made an effort to create a user-
friendly Web tool (in CSAT) that will reduce data entry errors. Hence, 
the Department believes that Submitters of high-risk chemical 
facilities will be able to affirm that, to the best of their knowledge, 
information submitted to DHS as part of the CFATS Personnel Surety 
Program is true, correct, and complete.
    Comment: One commenter suggested that it would be inappropriate to 
require facilities to submit affected individuals' information to DHS. 
The commenter suggested that requiring covered facilities to collect, 
verify, submit, and maintain this information creates an increased 
legal liability for covered facilities that have to accurately and 
timely collect, verify, submit, maintain and protect this sensitive 
information.
    Response: DHS presumes that chemical facilities, as employers, have 
access to basic biographical information (such as names, dates of 
birth, genders, and citizenships) of many facility personnel and 
visitors.
    As part of RBPS-12, each high-risk chemical facility is also 
required to conduct background checks to verify the identity, legal 
authorization to work, and criminal history of affected individuals. 
Many high-risk chemical facilities are collecting, verifying, and 
properly maintaining information necessary for these other 
verifications already. This already-collected information should 
include many, if not most of the necessary data elements required for 
submission to DHS to complete the check for an individual's ties to 
terrorism.
    Comment: A few commenters stated that high risk chemical facilities 
are rarely in a legal position to guarantee the truth, correctness or 
completeness of information related to contractors, vendors, truck 
drivers or any other non-employees. Requiring signed documents by 
company officials will not ensure that information from parties outside 
of their legal control is true, correct, and complete. One commenter 
expressed concern that company or facility representatives are not 
experts in determining the validity of identification, and the 
affirmation statements the Department will require each Submitter to 
affirm should be modified to be ``the same information presented by the 
affected individual.''
    Response: Each Submitter will be expected to affirm, to the best of 
his/her knowledge, that the information he/she submits to DHS on behalf 
of a high-risk chemical facility for vetting against the TSDB is true, 
correct, and complete. In the event that a high-risk chemical facility 
submits incorrect information through no fault of its own, the 
Department will expect the high-risk chemical facility to update the 
information in accordance with the proposed submission schedule. Steps 
that high-risk chemical facilities might take to validate personal 
information collected as part of identity, legal authorization to work, 
or criminal history checks are beyond the scope of this notice and are 
beyond the scope of the CFATS Personnel Surety Program ICR.

[[Page 34727]]

    Comment: The Department received comments requesting clarity as to 
whether covered facilities should submit names of emergency personnel 
who would qualify as affected individuals. One commenter noted a CFATS 
Frequently Asked Question (FAQ) which indicated that fire department 
personnel would not be required to undergo background checks.
    Response: The Department expects high-risk chemical facilities to 
submit the information of affected individuals in accordance with the 
submission schedule to be published or disseminated by the Department. 
For purposes of RBPS-12, the Department affirms that certain 
populations are not affected individuals. Specifically: (1) Federal 
officials that gain unescorted access to restricted areas or critical 
assets as part of the performance of their official duties are not 
affected individuals; (2) law enforcement officials at the state or 
local level that gain unescorted access to restricted areas or critical 
assets as part of the performance of their official duties are not 
affected individuals; and (3) emergency responders at the state or 
local level that gain unescorted access to restricted areas or critical 
assets during emergency situations are not affected individuals. This 
aligns with the population assumptions for the CFATS Personnel Surety 
Program embedded within the Regulatory Assessment.
    The Department has updated FAQ 1368 (see http://csat-help.dhs.gov), 
and appreciates the comment which brought the FAQ to the Department's 
attention.
    Comment: One commenter suggested that the Department is requesting 
information beyond what is required to identify people with terrorist 
ties when collecting work phone numbers and work email addresses. The 
commenter also suggested that collecting additional information for 
auditing purposes is beyond the scope of CFATS.
    Response: DHS no longer plans to routinely collect affected 
individuals' work phone numbers and work email addresses. The 
Department disagrees, however, that collection of information for 
auditing purposes is beyond the scope of CFATS.
    Comment: Several commenters suggested that the burden would be 
difficult to estimate unless the Department provided definitions for 
such terms as ``contractor'' and ``vendor.''
    Response: Individual high-risk facilities may classify particular 
contractors or vendors, or categories of contractors or vendors, either 
as ``facility personnel'' or as ``visitors.'' This determination should 
be a facility-specific determination, and should be based on facility 
security, operational requirements, and business practices. The 
Department's estimates regarding the information collection burden of 
the Personnel Surety Program reflect this approach.
    Comment: One commenter was not aware of any facility that currently 
maintains, in an easily accessible or transferrable format, the 
information required for submission discussed in the ICR.
    Response: The Department believes that the information necessary to 
identify individuals with terrorist ties is already in the possession 
of many high-risk chemical facilities, due to the other background 
checks already performed by those facilities. The burden outlined in 
this ICR accounts for the fact that some facilities do not possess this 
information, and that others do not possess this information in easily 
accessible or transferrable formats.
    Comment: One commenter suggested that various flaws in the TSDB and 
various flaws in the Federal government's watchlisting protocols need 
to be addressed in order to make the CFATS Personnel Surety Program 
viable and fair.
    Response: As indicated in the CFATS IFR, the Department has 
determined that a TSDB check is necessary for the purpose of protecting 
restricted areas and critical assets of high-risk chemical facilities 
from persons who may have ties to terrorism. See 72 FR 17708 (Apr. 9, 
2007). The TSDB is the Federal government's integrated and consolidated 
terrorist watchlist and is the appropriate database to use to identify 
individuals with terrorist ties. Discussions regarding TSDB flaws and 
the Federal government's watchlisting protocols are beyond the scope of 
this notice.
    Comment: One commenter requested clarity about the Department's 
reference that it may ``collect information on affected individuals as 
necessary to enable it to provide redress.'' Another commenter 
expressed concern that the CFATS Personnel Surety Program design does 
not set up a uniform, thorough system that gives workers full appeals 
or waiver procedures. Several commenters expressed concern about how 
the Department would provide meaningful redress under the design of the 
CFATS Personnel Surety Program.
    Response: An ICR is not the appropriate vehicle for the Department 
to use to address privacy and redress issues related to the CFATS 
Personnel Surety Program. The Department will publish a Privacy Impact 
Assessment (PIA) about the CFATS Personnel Surety Program, to be made 
available on the Department's Web page at http://www.dhs.gov/privacy 
and http://www.dhs.gov/chemicalsecurity. The Department will also 
publish a System of Records Notice (SORN) for the CFATS Personnel 
Surety Program, and a Notice of Proposed Rulemaking proposing to take 
certain Privacy Act exemptions for the CFATS Personnel Surety Program 
System of Records.

(D) On Behalf of OMB, DHS Solicited Comments Regarding the Minimization 
of the Burden of Information Collection on Those Who Are To Respond, 
Including Tthrough the Use of Aappropriate Automated, Electronic, 
Mechanical, or Other Technological Collection Techniques or Other Forms 
of Information Technology (e.g., Permitting Electronic Submissions of 
Responses)

    Comment: Three commenters suggested that the Department should 
allow private third parties to submit information of individuals to DHS 
on behalf of chemical facilities. Specifically, these commenters 
suggested that if private third parties could directly submit 
information, substantial burden could be eliminated for high-risk 
chemical facilities. Another commenter suggested that the Department 
should provide a means through which non-employees would be able to 
directly provide their information to the Department.
    Response: As part of the Personnel Surety Program, DHS will also 
allow facilities to designate third party individuals as Submitters. 
Designated individuals will be able to submit TSDB screening 
information to DHS on behalf of the facilities that designate them as 
Submitters.
    Comment: Commenters suggested that the ICR places undue burdens and 
costs on businesses that operate multiple regulated facilities where 
redundant information submissions would be required for a given 
individual who visits multiple sites.
    Response: The Department has taken steps to minimize the potential 
for an affected individual's information to be submitted multiple 
times. Further, in the event that an affected individual's information 
is submitted to the Department multiple times, only one record will be 
transmitted to TSA to be vetted against the TSDB.
    The primary step the Department has taken to minimize the potential 
for an affected individual's information to be submitted multiple times 
is ensuring that companies with many high-risk chemical facilities have 
flexibility to consolidate CSAT user roles. Specifically, CSAT will 
provide

[[Page 34728]]

companies the flexibility either to consolidate their user roles to 
allow a single Submitter for many facilities, or to elect for each 
facility to independently submit information to the Department. Each 
company may implement the best strategy for itself.
    Comment: Several commenters suggested that requiring facilities to 
update and correct information about affected individuals will neither 
``increase the accuracy of data collected,'' nor ``decrease the 
probability of incorrect matches'' against the TSDB. The commenters 
further suggested that updating and correcting information will 
significantly increase the administrative burden on companies required 
to provide the information and will also increase the likelihood that 
data may be incomplete and/or inaccurate.
    Response: The Department is confident that matching correct and 
accurate information against records in the TSDB increases the accuracy 
of the vetting process. The use of inaccurate or false data prevents 
DHS from accurately screening individuals with or seeking access to 
high-risk chemical facilities for ties to terrorism.
    Comment: Several commenters requested that the Department eliminate 
the requirement that facilities notify the Department when an affected 
individual no longer has access to a facility's restricted areas or 
critical assets.
    Response: For the duration that an affected individual has or is 
seeking access to restricted areas or critical assets at high-risk 
chemical facilities, DHS will compare the affected individual's 
information against new and/or updated TSDB records. When the 
Department is made aware that an individual no longer has or is seeking 
access, that individual's information will no longer be vetted against 
the TSDB. Therefore, the Department will not eliminate the requirement 
that facilities must notify the Department when an affected individual 
no longer has or is seeking access to a facility's restricted areas or 
critical assets.

(E) DHS Solicited Comments That Respond to the Department's 
Interpretation of the Population Affected by RBPS-12's Background Check 
Requirement

    Comment: Some commenters acknowledged the plain reading of CFATS, 
describing what categories of individuals are affected individuals for 
purposes of the CFATS Personnel Surety Program, while expressing their 
dissatisfaction that the Department was not pursuing rulemaking to 
modify the text of 6 CFR 27.230(a)(12). The majority of commenters, 
however, reiterated comments submitted during the 60-day comment period 
expressing disagreement with the definition of affected individuals. 
Commenters described the definition as a ``new'' CFATS requirement for 
escorted facility personnel and inconsistent with congressional intent, 
regulatory language contained in CFATS, guidance DHS has issued on RBPS 
satisfaction (available at http://www.dhs.gov/xlibrary/assets/chemsec_cfats_riskbased_performance_standards.pdf), and with other 
regulatory programs designed to enhance the security of the nation's 
critical infrastructure. For example, some commenters mentioned that 
the U.S. Coast Guard permits individuals without TWICs to access the 
secure areas of MTSA-regulated facilities so long as those individuals 
are escorted. Commenters requested additional information as to why the 
Department has seemingly crafted new categories of affected individuals 
in the context of CFATS.
    Response: The text of 6 CFR 27.230(a)(12) identifies who should 
appropriately undergo background checks as part of CFATS. The 
population of individuals who must be vetted under 6 CFR 27.230(a)(12) 
is the same as described in both the 60-day and 30-day notices: (1) 
Facility personnel who have or are seeking access (unescorted or 
otherwise) to restricted areas or critical assets, and (2) unescorted 
visitors who have or are seeking access to restricted areas or critical 
assets.\4\ In this response to comments, however, the Department has 
clarified that certain populations are not affected individuals. 
Specifically: (1) Federal officials that gain unescorted access to 
restricted areas or critical assets as part of the performance of their 
official duties are not affected individuals; (2) law enforcement 
officials at the State or local level that gain unescorted access to 
restricted areas or critical assets as part of the performance of their 
official duties are not affected individuals; and (3) emergency 
responders at the state or local level that gain unescorted access to 
restricted areas or critical assets during emergency situations are not 
affected individuals.
---------------------------------------------------------------------------

    \4\ See footnote 1.
---------------------------------------------------------------------------

    Comment: Some commenters suggested that the Department is selecting 
only one possible interpretation of 6 CFR 27.230(a)(12). Specifically, 
commenters suggested that a plain English interpretation of the text, 
``* * * appropriate background checks on and ensure appropriate 
credentials * * *'' could mean that sometimes it is appropriate not to 
conduct background checks on individuals with access to restricted 
areas or critical assets at high-risk chemical facilities.
    Response: DHS disagrees with the commenters' interpretation of 6 
CFR 27.230(a)(12). That section of CFATS requires that high-risk 
chemical facilities perform identity checks, criminal history checks, 
legal authorization to work checks, and terrorist ties checks on both 
(1) Facility personnel with access (unescorted or otherwise) to 
restricted areas or critical assets, and (2) unescorted visitors with 
access to restricted areas or critical assets.\5\
---------------------------------------------------------------------------

    \5\ See footnote 1.
---------------------------------------------------------------------------

    Comment: One commenter representing farmer-owned cooperatives 
explained that it is common for farmers to be unescorted in or near 
critical assets or restricted areas of high-risk chemical facilities 
when picking up products sold by or available from those facilities. 
The commenter stated that such a farmer would be seen at various times 
by various people throughout such facilities. The commenter requested 
clarity as to whether or not such a farmer would be an affected 
individual.
    Response: The Department emphasizes that each high-risk chemical 
facility has the ability to tailor its SSP to meet its unique business 
and security needs, including the ability to tailor access control 
procedures for restricted areas and critical assets. Each high-risk 
chemical facility will need to consider its unique security concerns 
when determining which individuals will be afforded access to 
restricted areas or critical assets. If a farmer-owned cooperative, 
determined by the Department to be a high-risk chemical facility, 
decided to establish access controls such that an unescorted individual 
had access to restricted areas and critical assets within the high-risk 
chemical facility, then that unescorted individual's information would 
need to be submitted to the Department.
    Comment: A few commenters requested clarity from the Department as 
to whether or not the scope of RBPS-12 extended beyond the physical 
perimeter of the high-risk chemical facility and potentially impacted 
individuals with access to networked computer systems.
    Response: If a networked computer system is listed as a restricted 
area or critical asset in an approved SSP, then individuals with access 
to that networked computer system would be

[[Page 34729]]

affected individuals for purposes of RBPS-12.

(F) DHS Solicited Comments Which Respond to the Statement That a 
Federal Law Enforcement Agency May, if Appropriate, Contact the High-
Risk Chemical Facility as a Part of a Law Enforcement Investigation 
Into Terrorist Ties of Facility Personnel

    Comment: The Department received several comments suggesting that 
Federal law enforcement agencies should not be hindered in their 
investigatory or anti-terrorism responsibilities. Most commenters 
believe, however, that both high-risk chemical facilities and 
individuals being vetted against the TSDB should, on a routine basis, 
be notified of TSDB vetting results.
    Response: It is the policy of the U.S. Government to neither 
confirm nor deny an individual's status in the TSDB.
    Comment: Several commenters suggested that the policy of not 
routinely notifying high-risk chemical facilities of vetting results is 
inconsistent with other Federal security vetting programs. One 
commenter stated that another Federal background check program provides 
notice to the facility and the individual when an individual has or has 
not cleared a background check. The commenter further stated that, 
``[t]his notice does not reveal to the employer facts that led the 
agency to disqualify the employee, but it does allow the employer the 
opportunity to immediately, if appropriate, remove the employee from 
work functions that would allow the individual to [perform sensitive 
work functions].''
    Response: Providing a vetting result back to the facility or the 
individual being vetted would conflict with the U.S. Government policy 
to neither confirm nor deny an individual's status in the TSDB.
    Comment: Several commenters requested additional information about 
the process and procedures the Federal Government would follow in the 
event that a known or suspected terrorist is identified who has or 
seeks access to restricted areas or critical assets at a high-risk 
chemical facility.
    Response: DHS will not routinely notify high-risk chemical 
facilities of CFATS Personnel Surety Program vetting results. DHS will 
coordinate with Federal law enforcement entities to monitor and/or 
prevent situations in which known or suspected terrorists have access 
to high-risk chemical facilities. The precise manners in which DHS or 
Federal law enforcement entities could contact high-risk chemical 
facilities following vetting are beyond the scope of this notice.
    Comment: One commenter recommended that the Department collect 
information on all employees who have CFATS-related adverse employment 
decisions, and make this information (not including personal 
identifiers) publically available.
    Response: DHS will not collect information on employment decisions 
as part of the CFATS Personnel Surety Program.

(G) Respond to the Department's Intention To Collect Information That 
Identifies the High-risk Chemical Facilities, Restricted Areas and 
Critical Assets to Which Each Affected Individual Has Access

    Comment: One commenter supported the Department's intention to 
collect information that identifies the high-risk chemical facilities 
to which each affected individual has access. Most commenters generally 
objected, however, to the Department's intention to collect information 
that identifies the high-risk chemical facilities to which each 
affected individual has access. One commenter expressed concern that 
the ICR indicated that the Department was collecting information about 
specific restricted areas or critical assets within each facility.
    Response: As part of the Personnel Surety Program the Department 
does not intend to collect information that identifies the specific 
restricted areas and critical assets within high-risk chemical 
facilities to which each affected individual has or is seeking access.
    Comment: A common objection made by commenters was that the 
Department was creating a tool to track individuals' movement from site 
to site, resulting in a program which far exceeds the Department's 
stated goal of identifying individuals that have ties to terrorism.
    Response: DHS has no intention to and will not track the movement 
of affected individuals between and among high-risk chemical 
facilities. The Department will only require a high-risk chemical 
facility to submit information about an affected individual to the 
Department (through CSAT) for the purpose of identifying individuals 
with terrorist ties once. A high-risk chemical facility will not need 
to submit to DHS information about a single affected individual each 
time that affected individual accesses restricted areas or critical 
assets.
    As mentioned previously in this notice, in accordance with the 
proposed submission schedule, high-risk chemical facilities will also 
be required to submit updated or corrected information about each 
affected individual, and to notify DHS when an affected individual no 
longer has or is seeking access to that facility's restricted areas or 
critical assets.
    Although the Department will not track the movement of affected 
individuals between and among high-risk chemical facilities, the 
Department will associate an affected individual with the high-risk 
chemical facility (or facilities) for which the high-risk chemical 
facility Submitter providing that affected individual's information 
into CSAT is responsible. In the event that a Submitter enters 
information into CSAT on behalf of more than one facility, by default 
the Department will associate the affected individual with all of the 
facilities for which the Submitter is responsible. A Submitter may, 
however, modify the lists of facilities with which particular affected 
individuals are associated. The Department may contact the designated 
points of contact for particular high-risk chemical facilities for 
several reasons, including to identify exactly at which high-risk 
chemical facilities particular affected individuals have access to 
restricted areas or critical assets.
    Comment: Commenters objected to the Department's intention to 
collect information that identifies high-risk chemical facilities 
because commenters claimed that this would cause the Department to run 
the risk of amassing so much information that the information collected 
will be meaningless.
    Response: The Department disagrees. DHS requires a minimum amount 
of information to perform checks to determine if affected individuals 
have ties to terrorism, and to identify the facilities to which 
affected individuals have access. DHS requires this information in 
order to carry out the terrorist ties checks required by CFATS. DHS is 
confident that that it can effectively collect and maintain this 
information, as appropriate.
    Comment: A few commenters reported that during a meeting between 
DHS and the Chemical Sector Coordinating Council on April 28, 2010, the 
Department stated its intention to collect information that identifies 
the high-risk chemical facilities, restricted areas, and critical 
assets to which each affected individual has access, and that it would 
use this information to conduct analysis and investigations.
    Response: DHS met with the Chemical Sector Coordinating Council on 
April 28, 2010, and reiterated the Department's intention to collect 
information that identifies the high-risk

[[Page 34730]]

chemical facilities to which each affected individual has access. The 
Department clarified that in the event that a match to a record in the 
TSDB is identified, the Department would be able to quickly identify 
the specific chemicals of interest (COI) the match may have access to 
and the contact information of the appropriate person at the chemical 
facility. This information may prove useful in determining an 
appropriate Federal, state, or local response in the event that one is 
necessary. The Department emphasizes that there will be no ``tracking'' 
of affected individuals, nor will DHS collect information on specific 
restricted areas or critical assets to which an affected individual has 
or is seeking access, as part of the CFATS Personnel Surety Program.
    Comment: Several commenters suggested that the Department should 
reach out to the facility contact that submitted an individual's 
information to determine specifics about the individual's site access 
when circumstances warrant.
    Response: DHS will collect information about facility points of 
contact in case follow-up is necessary.

(H) DHS Solicited Comments Which Respond to the Department's Intention 
to Seek an Exception to the Notice Requirement Under 5 CFR 
1320.8(b)(3).

    Comment: The Department received only a few comments in response to 
this question. None of these comments supported the Department's 
intention to seek an exception to the notice requirement under 5 CFR 
1320.8(b)(3).
    Response: The Department carefully reviewed the comments, but 
disagrees that an exception to the Paperwork Reduction Act (PRA) 
requirement, as contained in 5 CFR 1320.8(b)(3), that requires 
information collections to provide certain reasonable notices, will 
pose a risk to privacy. Therefore, the Department will request from OMB 
an exception for the CFATS Personnel Surety Program to the PRA 
requirement, as contained in 5 CFR 1320.8(b)(3), which requires Federal 
agencies to confirm that their information collections provide certain 
reasonable notices to affected individuals. If this exception is 
granted, DHS will be relieved of the potential obligation to require 
high-risk chemical facilities to collect signatures or other positive 
affirmations of these notices from affected individuals. Whether or not 
this exception is granted, DHS will still require high-risk facilities 
to affirm that, in accordance with their Site Security Plans, notice 
required by the Privacy Act of 1974, 5 U.S.C. 552a, has been given to 
affected individuals before their information is submitted to DHS.
    The Department's request for an exception to the requirement under 
5 CFR 1320.8(b)(3) would not exempt high-risk chemical facilities from 
having to adhere to applicable Federal, state, local, or tribal laws, 
or to regulations or policies pertaining to the privacy of facility 
personnel and the privacy of unescorted visitors.

(I) DHS Also Received Unsolicited Comments in Response to the 30-day 
Notice Related to the CFATS Personnel Surety Program

    Comment: Several commenters suggested that the CFATS Personnel 
Surety Program outlined in the ICR exceeds the Department's statutory 
authority, because the proposed CFATS Personnel Surety Program design 
conflicts with Section 550. Commenters suggested that the CFATS 
Personnel Surety Program's design eliminates a high-risk facility's 
flexibility to achieve compliance with RBPS-12. Specifically, the 
commenters suggested that the CFATS Personnel Surety Program design 
precludes a facility from satisfying RBPS-12 by leveraging measures 
other than the CFATS Personnel Surety Program to identify ties to 
terrorism, which commenters assert is a possible violation of Section 
550.
    Response: The CFATS Personnel Surety Program will not exceed the 
Department's statutory authority, nor will it violate or conflict with 
Section 550. DHS will provide and approve sufficient alternative 
methods for facility satisfaction of the terrorism ties background 
check portion of RBPS-12. Specifically, the CFATS Personnel Surety 
Program will provide several options to high-risk chemical facilities, 
including the following options:
    Facilities can restrict the numbers and types of persons whom they 
allow to access their restricted areas and critical assets, thus 
limiting the number of persons who will need to be vetted against the 
TSDB. Facilities additionally have wide latitude in how they define 
their restricted areas and critical assets in their SSPs, and thus are 
able to limit or control the numbers and types of persons requiring 
TSDB screening. Facilities can choose to escort visitors to restricted 
areas and critical assets in lieu of performing the background checks 
required by RBPS-12 on them. Facilities can also submit different 
biographic information to DHS through CSAT for affected individuals 
holding TWIC, HME, NEXUS, SENTRI, or FAST credentials than for affected 
individuals not holding such credentials.
    Comment: Many commenters suggested that this ICR is improper 
because it makes changes to CFATS and results in de facto rulemaking. 
Specifically, commenters suggested that four elements of the CFATS 
Personnel Surety Program are changes to CFATS prescribing specific 
protocols for administering background checks that take a categorically 
different approach than all other TSDB background check programs 
currently administered in the United States. Those elements were: (1) 
The Department's plan to conduct ``recurrent vetting'' of affected 
individuals, thus requiring facilities to notify the Department when a 
person no longer has access to restricted areas or critical assets; (2) 
the Department's intention to require facilities to submit updates on 
an approved schedule whenever an affected individual's information has 
changed; (3) the possibility that the Department would not recognize 
TSDB vetting results completed by other Federal programs as satisfying 
RBPS-12's terrorist ties check requirement; and (4) the Department's 
intention to link each affected individual to particular high-risk 
chemical facilities.
    Response: The ICR, and the associated 60-day and 30-day notices, do 
not make changes to CFATS. The ICR and associated notices provide 
descriptions of the nature of the CFATS Personnel Surety Program's 
information collection, categories of respondents, estimated burden, 
and costs. The PRA requires the Department to provide sufficient detail 
about how the Department would collect information under the CFATS 
Personnel Surety Program to enable the public to provide comment on 
that information collection.
    Comment: Many commenters suggested that the Department did not 
properly account for Executive Order 12866 in issuing the 60- and 30-
day notices preceding this notice. Among other things, Executive Order 
12866 directs agencies to assess the effects of Federal regulatory 
actions on state, local, and tribal governments, and the private 
sector, and to provide qualitative and quantitative assessments of the 
anticipated costs and benefits of Federal mandates resulting in annual 
expenditures of $100,000,000 or more, including the costs and benefits 
to state, local, and tribal governments, and the private sector. 
Commenters suggested that the Department carefully consider whether the 
CFATS Personnel Surety Program ICR qualifies as a significant 
rulemaking such that it is subject to various requirements of Executive 
Order 12866.

[[Page 34731]]

    Response: The Department disagrees that this information collection 
alone will generate expenditures in excess of $100,000,000. The 
Department also disagrees that this information collection constitutes 
rulemaking. When the Department published CFATS, however, it did 
consider CFATS to be a significant rulemaking. Therefore, in compliance 
with the requirements of Executive Order 12866, the Department outlined 
in the CFATS Regulatory Assessment the assumptions it used to estimate 
the costs of CFATS, which included the Department's estimates related 
to Personnel Surety in section 6.3.10 of the CFATS Regulatory 
Assessment.
    Comment: A few commenters suggested that this information 
collection will have a significant economic impact on a substantial 
number of small entities, which requires the Department to conduct a 
Regulatory Flexibility Analysis in accordance with the Regulatory 
Flexibility Act (RFA).
    Response: The RFA mandates that an agency conduct an analysis when 
an agency is required to publish a notice of proposed rulemaking, not 
when soliciting comments in preparation of submitting an ICR to OMB for 
review and clearance in accordance with the PRA. See 5 U.S.C. 603(a). 
The Department concluded in the preamble to the IFR that because 
Congress authorized DHS to proceed in promulgating CFATS without the 
traditional notice-and-comment required by the Administrative Procedure 
Act, the Department was not required to prepare an Initial Regulatory 
Flexibility Analysis (IRFA) under the Regulatory Flexibility Act. See 
72 FR 17722 (Apr. 9, 2007). Even so, the Department did consider the 
impacts of CFATS on small entities. Specifically, the CFATS Regulatory 
Assessment contains the Department's analysis of the impacts of CFATS 
on small entities. After consideration of the percentage of small 
entities that may have to comply with the risk-based performance 
standards (which include background checks under the CFATS Personnel 
Surety Program) required by CFATS and the compliance costs explained in 
the CFATS Regulatory Assessment, the Department determined that CFATS 
may have a significant economic impact on a substantial number of small 
entities.
    Comment: One commenter requested that the Department remove 
administrative roadblocks that either complicate the CFATS Personnel 
Surety Program or prohibit measures that would simplify and enhance the 
CFATS Personnel Surety Program. Specifically, the commenter requested 
that the Department allow employees to apply for TWICs, if their 
individual jobs require them to have access to restricted areas or 
critical assets at high-risk chemical facilities. The commentor 
suggested that there is no language in MTSA that expressly prohibits 
the use of TWICs at non-maritime facilities.
    Response: TWIC's authorizing statute, the Maritime Transportation 
Security Act of 2002 (MTSA), as amended, 46 U.S.C. 70101 et seq., 
explicitly applies ``transportation security card'' requirements to: 
``individual[s] allowed unescorted access to secure area[s] designated 
in * * * [maritime] vessel or [maritime] facility security plan[s]'' 
(70105(b)(2)(A)); certain MTSA license and permit holders 
(70105(b)(2)(B)); maritime vessel pilots (70105(b)(2)(C)); maritime 
towing vessel personnel (70105(b)(2)(D)); individuals with access to 
certain protected maritime security information (70105(b)(2)(E)); and 
certain other individuals (70105(b)(2)(F)-(G)). Further, individuals 
are eligible to receive a TWIC unless, among other criteria, they have 
committed certain ``disqualifying criminal offense[s],'' or do not meet 
certain ``immigration status requirements.'' 49 CFR 1572.5(a)(1)-(2). 
The CFATS authorizing statute, however, applies to ``chemical 
facilities that * * * present high levels of security risk.'' 
Department of Homeland Security Appropriations Act of 2007, Pub. L. 
109-295, 550 (Oct. 4, 2006). CFATS ``does not apply to facilities 
regulated pursuant to the Maritime Transportation Security Act of 
2002.'' 6 CFR 27.110(b). CFATS Personnel Surety Program screening 
requirements apply only to high-risk chemical facilities' ``personnel, 
and as appropriate * * * unescorted visitors with access to restricted 
areas or critical assets.'' 6 CFR 27.230(a)(12). Individuals are not 
eligible for TWICs solely because they have access to high-risk 
chemical facilities covered by CFATS. Accordingly, the CFATS Personnel 
Surety Program is not duplicative with the TWIC program in terms of 
type of facilities covered or program objectives.
    High-risk chemical facilities may, however, choose to leverage TWIC 
credentials as part of the identity, legal authorization to work, and 
criminal history background checks they perform under CFATS. See 6 CFR 
27.230(a)(12)(i)-(iii). The precise manners in which high-risk chemical 
facilities could leverage TWIC credentials as part of identity, legal 
authorization to work, and criminal history background checks could 
vary from facility to facility, and should be described in individual 
facilities' SSPs.
    Comment: Several commenters suggested that collecting sufficient 
information to conduct the background checks required by RBPS-12 might 
cause high-risk chemical facilities to violate State privacy laws and/
or the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.
    Response: The Department does not agree that participation in the 
CFATS Personnel Surety Program will cause high-risk chemical facilities 
to violate the Fair Credit Reporting Act. Similarly, the Department 
does not agree that participation in the CFATS Personnel Surety Program 
will cause high-risk chemical facilities to violate State law.
    High-risk chemical facilities may conduct the identity, legal 
authorization to work, and criminal history background checks required 
by 6 CFR 27.230(a)(12)(i)-(iii) in a variety of ways. Although 
identity, legal authorization to work, and criminal history background 
checks are not the subject of this notice, the Department believes that 
high-risk chemical facilities can structure and carry out these 
background checks in compliance with all applicable Federal and state 
laws, including the Fair Credit Reporting Act and state privacy laws.
    Comment: One commenter stated that screening databases and 
watchlists should be publicly accessible to allow for efficient and 
consistent background checks. The commenter stated that other U.S. and 
partner nation agencies share this information in the public domain, 
which allows for regulated entities to engage third-party vendors to 
facilitate background screening. The commenter cited specifically 
Office of Foreign Assets Control watch lists, which are available to 
the public.
    Response: The Department does not agree that the TSDB should be 
publicly available. The TSDB is the U.S. government's consolidated and 
integrated terrorist watchlist, used to identify known or suspected 
terrorists, containing sensitive information not appropriate for public 
consumption.
    The TSDB remains an effective tool in the government's 
counterterrorism efforts because its contents are not disclosed. For 
example, if it was revealed who was in the TSDB, terrorist 
organizations would be able to circumvent the purpose of the terrorist 
watchlist by determining in advance which of their members are likely 
to be questioned or detained.
    Comment: One commenter stated that there is no central database 
that covered entities could query to validate that an already-existing 
background screening may be on file with the Department.

[[Page 34732]]

    Response: DHS agrees that there is currently no central database 
that allows the public to determine that an individual has already 
undergone screening by the Department.
    Comment: One commenter was troubled by the information pertaining 
to RBPS-12 contained in Appendix C of the May 2009 Risk-Based 
Performance Standards Guidance (http://www.dhs.gov/xlibrary/assets/chemsec_cfats_riskbased_performance_standards.pdf), because the 
commenter believes that certain types of measures, procedures, 
policies, and plans mentioned in Appendix C are not appropriate for 
determining if chemical facility personnel are terrorist threats.
    Response: The Department expects high-risk chemical facilities to 
implement appropriate security measures to conduct identity, criminal 
history, and legal authorization to work background checks. These 
security measures can vary from facility to facility commensurate with 
facility-specific risks, security issues, and business practices. The 
guidance referenced by the commenter (see pages 180 to 186 of the Risk-
Based Performance Standards Guidance), and other guidance addressing 
identity, criminal history, and legal authorization to work background 
checks, however, is not guidance addressing compliance with 6 CFR 
27.230(a)(12)(iv), and as such is not the subject of this notice, nor 
is it the subject of the underlying ICR or of the 30- or 60-day notices 
preceding this notice.
    Comment: One commenter requested that the Department clarify what 
appeal or waiver options an affected individual has if his/her employer 
takes an adverse employment action against him/her based on RBPS-12 
background checks or based on information received or obtained under 
the CFATS Personnel Surety Program. The commenter also requested that 
the Department prevent high-risk chemical facilities from using 
personal information collected from affected individuals as part of 
RBPS-12 for purposes other than conducting the background checks 
required by RBPS-12.
    Response: High risk chemical facilities' employment actions are not 
regulated by CFATS.
    The ICR the Department will submit to OMB, this notice, the 60-day 
notice, and the 30-day notice address the CFATS Personnel Surety 
Program, not the identity, legal authorization to work, and criminal 
history background checks required by 6 CFR 230(a)(12)(i)-(iii). 
Discussion of information collected as part of those other three 
background checks, or employment decisions based on them, is beyond the 
scope of this notice.

Conclusion

    As mentioned in the summary section of this notice, DHS has 
submitted an ICR to OMB for review and clearance in accordance with the 
Paperwork Reduction Act of 1995. This notice responds to comments 
received during the 30-day notice.
    Prior to implementation of the CFATS Personnel Surety Program, the 
Department will also publish a Privacy Impact Assessment (PIA) about 
the CFATS Personnel Surety Program, available on the Department's Web 
page at http://www.dhs.gov/privacy and http://www.dhs.gov/chemicalsecurity. The Department will also publish a System of Records 
Notice (SORN) for the CFATS Personnel Surety Program, and a Notice of 
Proposed Rulemaking proposing to take certain Privacy Act exemptions 
for the CFATS Personnel Surety Program System of Records.
    The Department will also publish a notice, and/or send notice to 
high-risk chemical facilities individually, stating that the CFATS 
Personnel Surety Program has been implemented. In that notice, the 
Department will include description of how the CFATS Personnel Surety 
Program will be implemented, as well as the information submission 
schedule high-risk chemical facilities will be required to follow. The 
notice will also describe how a high-risk chemical facility can request 
a variance from the submission schedule.

Analysis

    Agency: Department of Homeland Security, National Protection and 
Programs Directorate, Office of Infrastructure Protection, 
Infrastructure Security Compliance Division.
    Title: CFATS Personnel Surety Program.
    Form: DHS Form 11000-29.
    OMB Number: 1670-NEW.
    Frequency: As required by a DHS-approved schedule.
    Affected Public: High-risk chemical facilities as defined in 6 CFR 
Part 27, high-risk chemical facility personnel, and as appropriate, 
unescorted visitors with access to restricted areas or critical assets.
    Number of Respondents: 1,303,700 individuals.
    Estimated Time per Respondent: 0.54 hours (32.4 minutes).
    Total Burden Hours: 707,200 annual burden hours.
    Total Burden Cost (capital/startup): $0.00.
    Total Burden Cost (operating/maintaining): $29,704,000.

    Signed: June 6, 2011.
David Epperson,
Chief Information Officer, National Protection and Programs 
Directorate, Department of Homeland Security.
[FR Doc. 2011-14382 Filed 6-13-11; 8:45 am]
BILLING CODE 9110-9-P