[Federal Register Volume 80, Number 243 (Friday, December 18, 2015)]
[Notices]
[Pages 79058-79066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31625]
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DEPARTMENT OF HOMELAND SECURITY
[Docket No. DHS-2015-0052]
Chemical Facility Anti-Terrorism Standards Personnel Surety
Program
AGENCY: National Protection and Programs Directorate, DHS.
ACTION: Implementation of the CFATS Personnel Surety Program.
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SUMMARY: The Department of Homeland Security (DHS), National Protection
and Programs Directorate (NPPD), Office of Infrastructure Protection
(IP) is providing notice to the public and chemical facilities
regulated under the Chemical Facility Anti-Terrorism Standards (CFATS)
that it is commencing implementation of the CFATS Personnel Surety
Program. CFATS requires regulated chemical facilities to implement
security measures designed to ensure that certain individuals with or
seeking access to the restricted areas or critical assets at those
chemical facilities are screened for terrorist ties. The CFATS
Personnel Surety Program enables regulated chemical facilities to meet
this requirement.
DATES: This notice is effective as of the date of publication.
ADDRESSES: Questions about this notice may be directed by mail to the
DHS/NPPD/IP/Infrastructure Security Compliance Division CFATS Program
Manager at the Department of Homeland Security, 245 Murray Lane, SW.,
Mail Stop 0610, Arlington, VA 20528-0610. Questions, which include
trade secrets, confidential commercial or financial information,
Chemical-terrorism Vulnerability Information (CVI),\1\ Sensitive
Security Information (SSI),\2\ or Protected Critical Infrastructure
Information (PCII),\3\ should be properly safeguarded.
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\1\ For more information about CVI see 6 CFR 27.400 and the CVI
Procedural Manual at http://www.dhs.gov/xlibrary/assets/chemsec_cvi_proceduresmanual.pdf.
\2\ For more information about SSI see 49 CFR part 1520 and the
SSI Program Web page at www.tsa.gov.
\3\ For more information about PCII see 6 CFR part 29 and the
PCII Program Web page at http://www.dhs.gov/protected-critical-infrastructure-information-pcii-program.
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Table of Contents
I. Notice of Implementation................................. 3
II. Statutory and Regulatory History of the CFATS Personnel 4
Surety Program.............................................
III. Contents and Requirements of the CFATS Personnel Surety 7
Program....................................................
A. Who Must be Checked for Terrorist Ties?.............. 7
B. Checking for Terrorist Ties During an Emergency or 8
Exigent Situation......................................
C. High-Risk Chemical Facilities have Flexibility when 8
Implementing the CFATS Personnel Surety Program........
D. Options Available to High-Risk Chemical Facilities to 9
Comply with RBPS 12(iv)................................
E. High-Risk Chemical Facilities may Use More Than One 17
Option.................................................
F. High-Risk Chemical Facilities may Propose Additional 17
Options................................................
G. Security Considerations for High-risk Chemical 18
Facilities to Weigh in Selecting Options...............
H. When the Check for Terrorist Ties Must be Completed.. 20
IV. Additional Details about Option 1 and Option 2 (Which 21
Involve the Submission of Information to the Department)...
A. Submission of a New Affected Individual's Information 21
under Option 1 or Option 2.............................
B. Updates & Corrections to Information about Affected 22
Individuals under Option 1 or Option 2.................
C. Notification that an Affected Individual No Longer 23
Has Access under Option 1 or Option 2..................
D. What/Who is the Source of the Information under 23
Option 1 and Option 2..................................
V. CSAT User Roles and Responsibilities..................... 24
VI. Privacy Considerations.................................. 25
A. Privacy Act Requirements To Enable Option 1 and 26
Option 2...............................................
B. Redress.............................................. 27
C. Additional Privacy Considerations Related to Option 1 27
And Option 2...........................................
D. Additional Privacy Considerations for Option 3 and 28
Option 4:..............................................
VII. Information a High-Risk Chemical Facility may Wish to 29
Consider Including in its SSP..............................
I. Notice of Implementation
The Department is publishing this notice to inform Tier 1 and Tier
2 high-risk chemical facilities regulated under CFATS of the
implementation of the CFATS Personnel Surety Program.\4\ High-risk
chemical facilities will be individually notified as to when the
Department will expect each high-risk
[[Page 79059]]
chemical facility to begin implementing risk based performance standard
(RBPS) 12(iv) in accordance with its Site Security Plan (SSP).\5\
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\4\ The Department intends to expand the scope of the CFATS
Personnel Surety Program to include Tier 3 and Tier 4 high-risk
chemical facilities after implementing the CFATS Personnel Surety
Program at Tier 1 and Tier 2 high-risk chemical facilities. Any
expansion to include Tier 3 and Tier 4 high-risk chemical facilities
will require updates to the CFATS Personnel Surety Program
Information Collection Request. The Department will publish another
notice to inform Tier 3 and Tier 4 high-risk chemical facilities of
program expansion after making necessary updates to the CFATS
Personnel Surety Program Information Collection Request.
\5\ Throughout this notice any reference to SSPs also refers to
Alternative Security Programs submitted by high-risk chemical
facilities as described in 6 CFR 27.235.
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II. Statutory and Regulatory History of the CFATS Personnel Surety
Program
Section 550 of the Department of Homeland Security Appropriations
Act of 2007, Public Law 109-295 (2006) (``Section 550''), provided the
Department with the authority to identify and regulate the security of
high-risk chemical facilities using a risk-based approach. On April 9,
2007, the Department issued the CFATS Interim Final Rule (IFR)
implementing this statutory mandate. See 72 FR 17688.
Section 550 required that the Department establish risk-based
performance standards for high-risk chemical facilities, and through
the CFATS regulations the Department promulgated 18 RBPSs, including
RBPS 12--Personnel Surety. Under RBPS 12, high-risk chemical facilities
regulated under CFATS are required to account for the conduct of
certain types of background checks in their Site Security Plans.
Specifically, RBPS 12 requires high-risk chemical facilities to:
Perform appropriate background checks on and ensure appropriate
credentials for facility personnel, and as appropriate, for
unescorted visitors with access to restricted areas or critical
assets, including, (i) Measures designed to verify and validate
identity; (ii) Measures designed to check criminal history; (iii)
Measures designed to verify and validate legal authorization to
work; and (iv) Measures designed to identify people with terrorist
ties[.]
6 CFR 27.230(a)(12).
The first three aspects of RBPS 12 (checks for identity, criminal
history, and legal authorization to work) have already been
implemented, and high-risk chemical facilities have addressed these
aspects of RBPS 12 in their Site Security Plans. This notice announces
to the public and chemical facilities that it is commencing
implementation of the CFATS Personnel Surety Program, which requires
Tier 1 and Tier 2 facilities to implement security measures designed,
to ensure that certain individuals with or seeking access to the
restricted areas or critical assets at those chemical facilities are
screened for terrorist ties.
Identifying affected individuals who have terrorist ties is an
inherently governmental function and requires the use of information
held in government-maintained databases that are unavailable to high-
risk chemical facilities. See 72 FR 17688, 17709 (April 9, 2007). Thus,
under RBPS 12(iv), the Department and high-risk chemical facilities
must work together to satisfy the ``terrorist ties'' aspect of the
Personnel Surety performance standard. To implement the provisions of
RBPS 12(iv), and in accordance with the Homeland Security Act as
amended by the Protecting and Securing Chemical Facilities from
Terrorist Attacks Act of 2014, Public Law 113-254,\6\ the following
options will be available to enable high-risk chemical facilities to
facilitate terrorist-ties vetting of affected individuals.
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\6\ Section 2 of Public Law 113-254 adds a new Title XXI to the
Homeland Security Act of 2002. Title XXI contains new sections
numbered 2101 through 2109. Citations to the Homeland Security Act
of 2002 throughout this document reference those sections of Title
XXI. In addition to being found in amended versions of the Homeland
Security Act of 2002, those sections of Title XXI can also be found
in section 2 of the CFATS Act of 2014, or in 6 U.S.C. 621-629.
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Option 1. High-risk chemical facilities may submit certain
information about affected individuals that the Department will use to
vet those individuals for terrorist ties. Specifically, the identifying
information about affected individuals will be compared against
identifying information of known or suspected terrorists contained in
the federal government's consolidated and integrated terrorist
watchlist, the Terrorist Screening Database (TSDB), which is maintained
by the Department of Justice (DOJ) Federal Bureau of Investigation
(FBI) in the Terrorist Screening Center (TSC).\7\
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\7\ For more information about the TSDB, see DOJ/FBI--019
Terrorist Screening Records System, 72 FR 47073 (August 22, 2007).
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Option 2. High-risk chemical facilities may submit information
about affected individuals who already possess certain credentials that
rely on security threat assessments conducted by the Department. See 72
FR 17688, 17709 (April 9, 2007). This will enable the Department to
verify the continuing validity of these credentials.
Option 3. High-risk chemical facilities may comply with RBPS 12(iv)
without submitting to the Department information about affected
individuals who possess Transportation Worker Identification
Credentials (TWICs), if a high-risk chemical facility electronically
verifies and validates the affected individual's TWICs through the use
of TWIC readers (or other technology that is periodically updated using
the Canceled Card List).
Option 4. High-risk chemical facilities may visually verify certain
credentials or documents that are issued by a Federal screening program
that periodically vets enrolled individuals against the Terrorist
Screening Database (TSDB). The Department continues to believe that
visual verification has significant security limitations and,
accordingly, encourages high-risk chemical facilities choosing this
option to identify in their Site Security Plans the means by which they
plan to address these limitations.
Each of these options is described in further detail below in
Section III.D.
III. Contents and Requirements of the CFATS Personnel Surety Program
The CFATS Personnel Surety Program enables the Department and high-
risk chemical facilities to mitigate the risk that certain individuals
with or seeking access to restricted areas or critical assets at high-
risk chemical facilities may have terrorist ties.
A. Who Must be Checked for Terrorist Ties?
RBPS 12(iv) requires that certain individuals with or seeking
access to restricted areas or critical assets at high-risk chemical
facilities be checked for terrorist ties. These individuals are
referred to as ``affected individuals.'' Specifically, affected
individuals are facility personnel or unescorted visitors with or
seeking access to restricted areas or critical assets at high-risk
chemical facilities. 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 considerations, operational requirements, and business
practices.
There are also certain groups of persons, which the Department does
not consider to be affected individuals, such as (1) federal officials
who gain unescorted access to restricted areas or critical assets as
part of their official duties; (2) state and local law enforcement
officials who gain unescorted access to restricted areas or critical
assets as part of their official duties; and (3) emergency responders
at the state or local level who gain unescorted access to restricted
areas or critical assets during emergency situations.
B. Checking for Terrorist Ties During an Emergency or Exigent Situation
In some emergency or exigent situations, access to restricted areas
or critical assets by other individuals who have not had appropriate
background checks under RBPS 12 may be necessary. For example,
emergency
[[Page 79060]]
responders who are not emergency responders at the state or local level
may require such access as part of their official duties under
appropriate circumstances. If high-risk chemical facilities anticipate
that an individual will require access to restricted areas or critical
assets without visitor escorts or without the background checks listed
in RBPS 12 under exceptional circumstances (e.g., foreseeable but
unpredictable circumstances), high-risk chemical facilities may
describe such situations and the types of individuals who might require
access in those situations in their SSPs. The Department will assess
the situations described, and any security measures the high-risk
chemical facility plans to take to mitigate vulnerabilities presented
by these situations, as it reviews each high-risk chemical facility's
SSP.
C. High-Risk Chemical Facilities Have Flexibility When Implementing the
CFATS Personnel Surety Program
A high-risk chemical facility will have flexibility to tailor its
implementation of the CFATS Personnel Surety Program to fit its
individual circumstances and, in this regard, to best balance who
qualifies as an affected individual, unique security issues, costs, and
burden. For example a high-risk chemical facility may, in its Site
Security Plan:
Restrict the numbers and types of persons allowed to
access its restricted areas and critical assets, thus limiting the
number of persons who will need to be checked for terrorist ties.
Define its restricted areas and critical assets, thus
potentially limiting the number of persons who will need to be checked
for terrorist ties.
Choose to escort visitors accessing restricted areas and
critical assets in lieu of performing terrorist ties background checks
under the CFATS Personnel Surety Program. The high-risk chemical
facility may propose in its SSP traditional escorting solutions and/or
innovative escorting alternatives such as video monitoring (which may
reduce facility security costs), as appropriate, to address the unique
security risks present at the facility.
D. Options Available to High-Risk Chemical Facilities To Comply With
RBPS 12(iv)
The Department has developed a CFATS Personnel Surety Program that
provides high-risk chemical facilities several options to comply with
RBPS 12(iv). In addition to the alternatives expressly described in
this notice, the Department will also permit high-risk chemical
facilities to propose alternative measures for terrorist ties
identification in their SSPs, which the Department will consider on a
case-by-case basis in evaluating high-risk chemical facilities' SSPs.
Of note, and as discussed further below, a high-risk chemical facility
may choose one option or a combination of options to comply with RBPS
12(iv).
Overview of Option 1
The first option allows high-risk chemical facilities (or
designee(s)) \8\ to submit certain information about affected
individuals to the Department through a Personnel Surety Program
application in an online technology system developed under CFATS called
the Chemical Security Assessment Tool (CSAT). Access to and the use of
CSAT is provided free of charge to high-risk chemical facilities (or
their designee(s)).
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\8\ A designee is a third party that submits information about
affected individuals to DHS on behalf of a high-risk chemical
facility.
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Under this option, information about affected individuals submitted
by, or on behalf of, high-risk chemical facilities will be compared
against identifying information of known or suspected terrorists
contained in the TSDB.\9\
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\9\ Detailed information about the submission of information
about affected individuals under Option 1 to the Department for
vetting purposes via CSAT can be found in the CSAT Personnel Surety
Program User Manual available on www.dhs.gov/chemicalsecurity.
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If Option 1 is selected by a high-risk chemical facility in its
SSP, the facility (or its designee(s)) must submit the following
information about an affected individual to satisfy RBPS 12(iv):
For U.S. Persons (U.S. citizens and nationals as well as
U.S. lawful permanent residents):
[cir] Full name
[cir] Date of Birth
[cir] Citizenship or Gender
For Non-U.S. Persons:
[cir] Full Name
[cir] Date of Birth
[cir] Citizenship
[cir] Passport information and/or alien registration number
To reduce the likelihood of false positives in matching against
records in the Federal Government's consolidated and integrated
terrorist watchlist, high-risk chemical facilities (or their
designee(s)) are encouraged, but not required, to submit the following
optional information about each affected individual:
Aliases
Gender (for Non-U.S. Persons)
Place of Birth
Redress Number\10\
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\10\ For more information about Redress Numbers, please go to
http://www.dhs.gov/one-stop-travelers-redress-process#1.
If a high-risk chemical facility chooses to submit information
about an affected individual under Option 1, the following table
summarizes the biographic data that would be submitted to the
Department.
Table 01--Affected Individual Required and Optional Data Under Option 1
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Data elements submitted to the
department For a U.S. person For a non-U.S. person
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Full Name............................... Required
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Date of Birth........................... Required
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Gender.................................. Must provide Citizenship or Optional.
Gender.
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Citizenship............................. ............................... Required.
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Passport Information and/or Alien N/A............................ Required.
Registration Number.
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Aliases................................. Optional
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Place of Birth.......................... Optional
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Redress Number.......................... Optional
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[[Page 79061]]
Overview of Option 2
The second option also allows high-risk chemical facilities (or
designee(s)) to submit certain information about affected individuals
to the Department through the CSAT Personnel Surety Program
application.\11\ This option allows high-risk chemical facilities and
the Department to take advantage of the vetting for terrorist ties
already being conducted on affected individuals enrolled in the TWIC
Program, Hazardous Materials Endorsement (HME) Program, as well as the
NEXUS, Secure Electronic Network for Travelers Rapid Inspection
(SENTRI), Free and Secure Trade (FAST), and Global Entry Trusted
Traveler Programs.
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\11\ Detailed information about the submission of information
about affected individuals under Option 2 to the Department via CSAT
can be found in the CSAT Personnel Surety Program User Manual
available on www.dhs.gov/chemicalsecurity.
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Under Option 2, high-risk chemical facilities (or designee(s)) may
submit information to the Department about affected individuals
possessing the appropriate credentials to enable the Department to
electronically verify the affected individuals' enrollments in these
other programs. The Department will subsequently notify the Submitter
\12\ of the high-risk chemical facility whether or not an affected
individual's enrollment in one of these other DHS programs was
electronically verified. The Department will also periodically re-
verify each affected individual's continued enrollment in one of these
other programs, and notify the high-risk chemical facility and/or
designee(s) of significant changes in the status of an affected
individual's enrollment (e.g., if an affected individual who has been
enrolled in the HME Program ceases to be enrolled, then the Department
would change the status of the affected individual in the CSAT
Personnel Surety Program application and notify the Submitter).\13\
Electronic verification and re-verification ensure that both the
Department and the high-risk chemical facility can rely upon the
continuing validity of an affected individual's credential or
endorsement. As a condition of choosing Option 2, a high-risk chemical
facility must describe in its SSP what action(s) it, or its
designee(s), will take in the event the Department is unable to verify,
or no longer able to verify, an affected individual's enrollment in the
other DHS program. The high-risk facility must take some action and not
leave the situation unresolved.
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\12\ A Submitter is a person who is responsible for the
submission of information through the CSAT system as required in 6
CFR 27.200(b)(3).
\13\ When the Department notifies the Submitter of the high-risk
chemical facility of significant changes in the status of an
affected individual's enrollment, such a notification should not be
construed to indicate that an individual has terrorist ties or be
treated as derogatory information.
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If Option 2 is selected by a high-risk chemical facility in it SSP,
the high-risk chemical facility (or designee(s)) must submit the
following information about an affected individual to satisfy RBPS
12(iv):
Full Name;
Date of Birth; and
Program-specific information or credential information,
such as unique number, or issuing entity (e.g., State for Commercial
Driver's License (CDL) associated with an HME).
To further reduce the potential for misidentification, high-risk
chemical facilities (or designee(s)) are encouraged, but not required,
to submit the following optional information about affected individuals
to the Department:\14\
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\14\ The CSAT Personnel Surety application will be constructed
to enable submission of these optional data elements in the future.
However, the ability to submit them in the initial phases of
implementation of the program may be limited.
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Aliases
Gender
Place of Birth
Citizenship
If a high-risk chemical facility chooses to submit information
about an affected individual under Option 2, the following table
summarizes the biographic data that would be submitted to the
Department.
Table 02--Affected Individual Required and Optional Data Under Option 2
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For affected individual
enrolled in a trusted
Data elements submitted to the For affected individual For affected individual traveler program
department with a TWIC with an HME (NEXUS, SENTRI, FAST,
or Global Entry)
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Full Name............................ Required
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Date of Birth........................ Required
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Expiration Date...................... Required
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Unique Identifying Number............ TWIC Serial Number: CDL Number: Required... PASS ID Number:
Required. Required.
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Issuing State of CDL................. N/A.................... Required............... N/A.
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Aliases.............................. Optional
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Gender............................... Optional
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Place of Birth....................... Optional
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Citizenship.......................... Optional
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Overview of Option 3
Under Option 3--Electronic Verification of TWIC, a high-risk
chemical facility (or its designee(s)) will not submit to the
Department information about affected individuals in possession of
TWICs, but rather will electronically verify and validate the affected
individuals' TWICs \15\ through the use of TWIC readers (or other
technology that is periodically updated with revoked card information).
Any
[[Page 79062]]
high-risk chemical facility that chooses this option must describe in
its SSP the process and procedures it will follow if it chooses to use
TWIC readers, including what action(s) it, or its designee(s), will
take in the event the high-risk chemical facility is unable to verify
the TWIC, or subsequently unable to verify an affected individual's
TWIC. For example, if a TWIC cannot be verified through the use of a
TWIC Reader, the high-risk chemical facility may choose to verify the
affected individual's enrollment in TWIC under Option 2, or submit
information about the affected individual under Option 1.
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\15\ Electronic verification and validation of an affected
individual's TWIC requires authentication that the affected
individual's TWIC (1) is a valid credential issued by TSA, and (2)
has not been cancelled by the TSA, and (3) the biometric live sample
matches the biometric template on the TWIC.
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Overview of Option 4
Option 4--Visual Verification Of Credentials Conducting Periodic
Vetting complies with section 2102(d)(2) of the Homeland Security Act
and allows a high-risk chemical facility to satisfy its obligation
under 6 CFR 27.230(a)(12)(iv) to identify individuals with terrorist
ties using any Federal screening program that periodically vets
individuals against the TSDB if:
The Federal screening program issues a credential or
document,\16\
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\16\ This requirement is derived from section 2102(d)(2)(B)(i)
of the Homeland Security Act.
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The high-risk chemical facility is presented \17\ a
credential or document by the affected individual,\18\ and
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\17\ The Department considers records of credentials or
documents maintained by the high-risk chemical facility, or
designee, as having been presented by the affected individual. For
example, if high-risk chemical facility (or designee) has in its
personnel or access control files a photocopy of an affected
individual's CDL with an HME, the high-risk chemical facility may
consider the copy in its files as having been presented by the
affected individual.
\18\ Section 2102(d)(2)(B)(i)(II)(aa) of the Homeland Security
Act requires high-risk chemical facilities to accept the credential
or document from any federal screening program that conducts
periodic vetting against the TSDB. Under Option 4, a high-risk
chemical facility may contact the Department when drafting its SSP
to determine if a specific credential or document is from a federal
screening program that conducts periodic vetting against the TSDB.
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The high-risk chemical facility verifies the credential or
document is current in accordance with its SSP.\19\
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\19\ This requirement is derived from section
2102(d)(2)(B)(i)(II)(bb) of the Homeland Security Act.
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As a result, a high-risk chemical facility may verify that a
credential or document is current based upon visual inspection, if the
processes for conducting such visual inspections are described in its
SSP. When developing such processes, the Department encourages high-
risk chemical facilities to consider any rules, processes, and
procedures prescribed by the entity issuing the credential or document.
The Department believes that visual verification has inherent
limitations and provides less security value than the other options
available under the CFATS Personnel Surety Program. The Department
encourages every high-risk chemical facility to consider a means of
verification that is consistent with its specific circumstances and its
assessment of the threat posed by the acceptance of such credentials.
If a facility chooses to use Option 4, in whole or in part, it should
also identify in its Site Security Plan the means by which it plans to
address these limitations.
An example of Option 4 that could be implemented by a high-risk
chemical facility is to leverage the vetting conducted by the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) on affected
individuals who are employee possessors of a Federal explosives
licensee/permittee. For example, a high-risk chemical facility may rely
on a ``letter of clearance'' issued by ATF when presented by an
affected individual who is also an employee-possessor of explosives.
The high-risk chemical facility should describe in its SSP the
procedures it will use to verify the letter of clearance is current.
The Department will consider high-risk chemical facilities' proposals
in the course of evaluating individual SSPs.
E. High-Risk Chemical Facilities May Use More Than One Option
High-risk chemical facilities have discretion as to which option(s)
to use for an affected individual. For example, if an affected
individual possesses a TWIC or some other credential or document, a
high-risk chemical facility could choose to use Option 1 for that
individual. Similarly, a high-risk chemical facility, at its
discretion, may choose to use Option 1 or Option 2 rather than Option 3
or Option 4 for affected individuals who have TWICs or some other
credential or document. High-risk chemical facilities also may choose
to combine Option 1 with Option 2, Option 3, and/or Option 4, as
appropriate, to ensure that adequate terrorist ties checks are
performed on different types of affected individuals (e.g., employees,
contractors, unescorted visitors). Each high-risk chemical facility
must describe how it will comply with RBPS 12(iv) in its SSP.
F. High-Risk Chemical Facilities May Propose Additional Options
In addition to the options described above for satisfying RBPS
12(iv), a high-risk chemical facility is welcome to propose alternative
or supplemental options not described in this document in its SSPs. The
Department will assess the adequacy of such alternative or supplemental
options on a facility-by-facility basis, in the course of evaluating
each facility's SSP.
G. Security Considerations for High-Risk Chemical Facilities To Weigh
in Selecting Options
The Department believes the greatest security benefit is achieved
when a high-risk chemical facility selects either Option 1 and/or
Option 2. Option 3 also provides significant security benefit. Option 4
provides some security benefit but less than Option 1, Option 2, or
Option 3.
Option 1 and Option 2 provide the greatest security benefit because
the information submitted about each affected individual will be
recurrently vetted against the TSDB. Recurrent vetting is a Department
best practice and compares an affected individual's information against
new and/or updated TSDB records as such records become available.
Further, in the event that an affected individual with terrorist ties
has or is seeking access to restricted areas or critical assets, if
information about that affected individual is submitted to the
Department under Option 1 or Option 2, the Department will be able to
ensure that an appropriate Federal law enforcement agency is notified
and that, as appropriate and consistent with law-enforcement and
intelligence requirements, the facility receives notification as well.
Option 3 also provides significant security benefit because
information about affected individuals with TWICs is recurrently vetted
against the TSDB. However, since the Department does not receive
information about these affected individuals from high-risk chemical
facilities under Option 3, the Department cannot ensure that the
appropriate Federal law enforcement agency is provided information
about the high-risk chemical facility at which any such affected
individual with terrorist ties has or is seeking access.
Finally, Option 4 provides a more-limited security benefit, as some
Federal screening programs do not conduct recurrent vetting. Recurrent
vetting compares an affected individual's information against new and/
or updated TSDB records as those new and/or updated records become
available. Recurrent vetting is a Department best practice because
often records about terrorists are either created or updated in the
TSDB after the initial vetting has already occurred. Consequently,
recurrent vetting results in additional
[[Page 79063]]
matches and provides substantial security value.
In addition, relying on a visual inspection of a credential or
document is not as secure as electronic verification because visual
inspection may make it more difficult to ascertain whether a credential
or document has expired, been revoked, or is fraudulent. For example,
the visual verification of a TWIC will not reveal whether the TWIC has
been revoked by the Transportation Security Administration. Similarly,
visual verification of a Hazardous Material Endorsement on a commercial
driver's license will not reveal if the endorsement has expired or been
revoked.
Finally, since the Department will not receive from high-risk
chemical facilities information about affected individuals whose
credentials are visually verified, the Department will be unable to
ensure the appropriate Federal law enforcement agency is provided
information regarding the risks posed to a high-risk chemical facility
by any such affected individual with terrorist ties, nor will it be
able to ensure that the facility receives appropriate notification of
the risk.
For the reasons described above, Option 4 provides less security
value than the other options available to high-risk chemical facilities
under the CFATS Personnel Surety Program.
H. When the Check for Terrorist Ties Must Be Completed
The Department will notify high-risk chemical facilities,
individually, when it will require each to address RBPS 12(iv) in its
SSP. After that notification, a facility must update or draft its SSP
to address RBPS 12(iv), as appropriate, prior to authorization or
approval by the Department. After authorization or approval, a high-
risk chemical facility (as described in its authorized or approved SSP)
must complete the terrorist ties check required to be conducted on a
particular affected individual by 6 CFR 27.230(a)(iv) prior to the
affected individual being granted access to any restricted area or
critical asset.\20\ For affected individuals with existing access, the
Department will expect, unless otherwise noted in an authorized or
approved SSP or ASP, that the terrorist ties check will be completed
within 60 days after receiving authorization or approval of an SSP
requiring the facility to implement measures to comply with RBPS
12(iv). A high-risk chemical facility may suggest an alternative
schedule based on its unique circumstances in its SSP. Table 3 below
outlines the four primary options, and the expected time a high-risk
chemical facility will have to complete the required activity(ies)
outlined in the authorized or approved SSP to comply with RBPS 12(iv)
for new affected individual as well as affected individuals with
existing access.
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\20\ The Department indicated (in previous notices the
Department published to comply with the Paperwork Reduction Act)
that the terrorist ties check should be performed 48 hours prior to
access. Although performing checks at least 48 hours in advance
remains a best practice, the Department no longer expects all high-
risk chemical facilities to perform checks in advance. The
Department has changed this expectation in order to encourage high-
risk chemical facilities to select Option 1, 2, and/or 3 when
drafting SSPs.
Table 3--Summary of Options To Check for Terrorist Ties
----------------------------------------------------------------------------------------------------------------
Timeline for affected
Option for compliance Facility activity Timeline for new individuals with
description affected individuals existing access
----------------------------------------------------------------------------------------------------------------
OPTION 1--Direct Vetting............. Facility submits Unless otherwise noted Unless otherwise noted
information to the in an authorized or in an authorized or
OPTION 2--Use of Vetting Conducted Department. approved SSP, the approved SSP, the
Under Other DHS Programs. Facility submits Department expects Department expects
OPTION 3--Electronic Verification of information to the that this activity that this activity
TWIC. Department. will be completed will be completed
OPTION 4--Visual Verification of ....................... prior to the affected within 60 days after
Credentials Conducting Periodic Facility uses a TWIC individual being receiving
Vetting. Reader. granted access to any authorization or
....................... restricted area or approval of an SSP
Facility conducts critical asset. requiring the facility
visual verifications to implement measures
by examining affected to comply with RBPS
individuals' 12(iv).
credentials or
documents.
Facility-Proposed Alternative........ Details about facility- Details about facility- Details about facility-
proposed alternatives proposed alternatives proposed alternatives
could vary could vary could vary
significantly from significantly from significantly from
facility to facility. facility to facility. facility to facility.
----------------------------------------------------------------------------------------------------------------
IV. Additional Details About Option 1 and Option 2 (Which Involve the
Submission of Information to the Department)
A. Submission of a New Affected Individual's Information Under Option 1
or Option 2
Under Option 1 or Option 2, a high-risk chemical facility may
submit information about new affected individuals in accordance with
its SSP. The Department encourages high-risk chemical facilities to
submit information about affected individuals as soon as possible after
an individual has been determined to be an affected individual. As
described earlier in this notice, the high-risk chemical facilities
must submit information prior to a new affected individual obtaining
access to any restricted area or critical asset.
B. Updates & Corrections to Information About Affected Individuals
Under Option 1 or Option 2
Section 2102(d)(2)(A)(i) of the Homeland Security Act prohibits the
Department from requiring a high-risk chemical facility to submit
information about an individual more than one time under Option 1 or
Option 2. Therefore, under Option 1 or Option 2, a high-risk chemical
facility may choose whether to submit data updates or corrections about
affected individuals.
The Department believes that there are substantial privacy risks if
a high-risk chemical facility opts not to provide updates and
corrections (e.g., updating or correcting a name or date of birth)
about affected individuals. Specifically, the accuracy of an affected
individual's personal data being vetted against the TSDB for terrorist
ties may be affected. Accurate information both (1) increases the
likelihood of correct matches against information about known or
suspected terrorists, and (2) decreases the likelihood of incorrect
matches that associate affected individuals without terrorist ties with
known and suspected terrorist identities. As a result, the Department
encourages high-risk
[[Page 79064]]
chemical facilities to submit updates and corrections as they become
known so that the Department's checks for terrorist ties, which are
done on a recurrent basis, are accurate. If a high-risk chemical
facility is either unable or unwilling to update or correct an affected
individual's information, the affected individual may seek redress as
described in the CFATS Personnel Surety Program Privacy Impact
Assessment.\21\
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\21\ Concurrent with the publication of this implementation
notice the Department is publishing a Privacy Impact Assessment
(PIA) Update which is available at www.dhs.gov/privacy.
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C. Notification That an Affected Individual No Longer Has Access Under
Option 1 or Option 2
Section 2102(d)(2)(A)(i) of the Homeland Security Act also
prohibits the Department from requiring a high-risk chemical facility
to notify the Department when an affected individual no longer has
access to the restricted areas or critical assets of a high-risk
chemical facility. Therefore, under Option 1 or Option 2, a high-risk
chemical facility has the option to notify the Department when the
affected individual no longer has access to any restricted areas or
critical assets, but such notification is not required. The Department
strongly encourages high-risk chemical facilities to notify the
Department when an affected individual no longer has access to
restricted areas or critical assets to ensure the accuracy of the
Department's data and to stop the recurrent vetting on the person who
is no longer an affected individual. If a high-risk chemical facility
is either unable or unwilling to notify the Department when an affected
individual no longer has access to restricted areas or critical assets,
the affected individual may seek redress as described in the CFATS
Personnel Surety Program Privacy Impact Assessment.
D. What/Who Is the Source of the Information Under Option 1 and Option
2
High-risk chemical facilities are responsible for complying with
RBPS 12(iv). However, companies operating multiple high-risk chemical
facilities, as well as companies operating only one high-risk chemical
facility, may comply with RBPS 12(iv) in a variety of ways. A high-risk
chemical facility, or its parent company, may choose to comply with
RBPS 12(iv) by identifying and directly submitting to the Department
the information about affected individuals. Alternatively, a high-risk
chemical facility, or its parent company, may choose to comply with
RBPS 12(iv) by outsourcing the information-submission process to third
parties.
The Department also anticipates that many high-risk chemical
facilities will rely on businesses that provide them with contract
services (e.g., complex turn-arounds, freight delivery services,
landscaping) to identify and submit the appropriate information about
affected individuals the contract services employ to the Department
under Option 1 and Option 2.
Both third parties that submit information on behalf of high-risk
chemical facilities and businesses that provide services to high-risk
chemical facilities must be designated by the high-risk chemical
facility within CSAT in order to submit appropriate information about
affected individuals to the Department on behalf of the high-risk
chemical facility.\22\
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\22\ Information about how to designate a third party within
CSAT is explain in the CFATS Personnel Surety Program User Manual
available on www.dhs.gov/chemicalsecurity.
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V. CSAT User Roles and Responsibilities
Under Options 1 and 2 (as described above), high-risk chemical
facilities have wide latitude in assigning CSAT user roles to align
with their business operations and/or the business operations of third
parties that provide contracted services to them. The Department has
structured the CSAT Personnel Surety Program application to allow
designee(s) of high-risk chemical facilities to submit information
about affected individuals directly to the Department on behalf of
high-risk chemical facilities.
High-risk chemical facilities and designee(s) will be able to
structure CSAT user roles to submit information about affected
individuals to the Department in several ways, including but not
limited to the following:
A high-risk chemical facility may directly submit
information about affected individuals, and designate one or more
officers or employees of the facility with appropriate CSAT user roles;
and/or
A high-risk chemical facility may ensure the submission of
information about affected individuals by designating one or more
persons affiliated with a third party (or with multiple third parties);
and/or
A company owning several high-risk chemical facilities
could consolidate its submission process for affected individuals.
Specifically, the company could designate one or more persons to submit
information about affected individuals on behalf of all or some of the
Tier 1 and Tier 2 high-risk chemical facilities within the company on a
company-wide basis.
Third parties interested in providing information about affected
individuals to the Department on behalf of high-risk chemical
facilities may request a CSAT user account from the high-risk chemical
facility or company for which the third party will be working. Third
parties will not be able to submit information about affected
individuals until a high-risk chemical facility designates the third
party within CSAT to submit information on its behalf.
A high-risk chemical facility (or designee(s)) may submit
information under Option 1 or Option 2 after the facility's SSP has
been approved or authorized by the Department for RBPS 12(iv).
VI. Privacy Considerations
High-risk chemical facilities (or designee(s)) may maintain
information about an affected individual, for the purpose of complying
with CFATS, which is not submitted to the Department as part of the
CFATS Personnel Surety Program (e.g., for compliance with RBPS 12(i)-
(iii), or for recordkeeping pertaining to Option 3 or Option 4).
Information not in the possession of and not submitted to the
Department is not covered under the Privacy Act of 1974. Nevertheless,
the Department expects that high-risk chemical facilities and
designee(s) will protect and safeguard any such information as outlined
in their SSPs and in accordance with any other Federal, State, or local
privacy laws that are applicable to the collection of the information,
just as the high-risk chemical facilities would for other similar
information collected under a their normal business practices for
activities unrelated to CFATS.
A. Privacy Act Requirements To Enable Option 1 and Option 2
The Department complies with all applicable federal privacy
requirements including those contained in the Privacy Act, the E-
Government Act, the Homeland Security Act, and Departmental policy. The
United States also follows international instruments on privacy, all of
which are consistent with the Fair Information Practice Principles
(FIPPs).\23\ The Department:
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\23\ See Privacy Policy Guidance Memorandum, The Fair
Information Practice Principles: Framework for Privacy Policy at the
Department of Homeland Security, available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_policyguide_2008-01.pdf (December
29, 2008).
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[[Page 79065]]
Published a System of Records Notice (SORN) for the CFATS
Personnel Surety Program on June 14, 2011 as well as a SORN Update on
May 19, 2014.\24\
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\24\ See DHS/NPPD-002--Chemical Facility Anti-Terrorism
Standards Personnel Surety Program System of Records, 79 FR 28752,
available at www.dhs.gov/privacy (May 19, 2014).
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Issued a Final Rule \25\ to exempt portions of the
Chemical Facility Anti-Terrorism Standards Personnel Surety Program
SORN from certain provisions of the Privacy Act because of criminal,
civil, and administrative enforcement requirements on May 21, 2014.
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\25\ See Implementation of Exemptions; Department of Homeland
Security/National Protection and Programs Directorate--002 Chemical
Facility Anti-Terrorism Standards Personnel Surety Program System of
Records, 79 FR 29072, available at www.dhs.gov/privacy (May 21,
2014).
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Published a CFATS Personnel Surety Program Privacy Impact
Assessment (PIA) in May 2011, and a CFATS Personnel Surety Program PIA
Update on May 1, 2014. Concurrent with the publication of this
implementation notice the Department is publishing a second PIA Update
which is available at www.dhs.gov/privacy.
With the publication of these privacy documents, the Department has
ensured that the CFATS Personnel Surety Program complies with the
appropriate privacy laws and Department of Homeland Security privacy
policies.
B. Redress
The CFATS Personnel Surety Program complies with the requirement of
section 2102(d)(2)(A)(iii) of the Homeland Security Act to provide
redress to an individual: (1) Whose information was vetted against the
TSDB under the program; and (2) who believes that the personally
identifiable information submitted to the Department for such vetting
by a covered chemical facility, or its designated representative, was
inaccurate. The Department has described how to seek redress in the
CFATS Personnel Surety Program Privacy Impact Assessment.
C. Additional Privacy Considerations Related to Option 1 and Option 2
The Submitter(s) of each high-risk chemical facility (or
designee(s)) will be required to affirm that, in accordance with its
SSP, notice required by the Privacy Act of 1974 has been given to
affected individuals before their information is submitted to the
Department. The Department has made available a sample Privacy Act
notice that complies with subsection (e)(3) of the Privacy Act (5
U.S.C. 552a(e)(3)) in the CFATS Personnel Surety Program PIA Update
being published concurrently with this notice.\26\ The sample notice,
or a different satisfactory notice, must be provided by a high-risk
chemical facility to affected individuals prior to the submission of
Personally Identifiable Information (PII) to the Department under
Option 1 and Option 2. This notice must: (1) Notify those individuals
that their information is being submitted to DHS for vetting against
the TSDB, and that in some cases additional information may be
requested and submitted in order to resolve a potential match; (2)
instruct those individuals how to access their information; (3)
instruct those individuals how to correct their information; and (4)
instruct those individuals on procedures available to them for redress
if they believe their information has been improperly matched by the
Department to information contained in the TSDB. Individuals have the
opportunity and the right to decline to provide information; however,
if an individual declines to provide information, he or she may impact
a high-risk chemical facility's compliance with CFATS.
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\26\ The CFATS Personnel Surety Program PIA Update, as well as
other privacy related documents, are available at on the
Department's Web site at www.dhs.gov/privacy.
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D. Additional Privacy Considerations for Option 3 and Option 4
A high-risk chemical facility will not submit information to the
Department if the facility opts to electronically verify and validate
affected individuals' TWICs through the use of TWIC readers (or other
technology that is periodically updated with revoked card information)
under Option 3. High-risk chemical facilities that opt to implement
Option 3 are encouraged, but are not required, to provide notice to
each affected individual whose TWIC is being verified and validated.
Although Option 3 allows high-risk chemical facilities to comply with
RBPS 12(iv) without submitting information to the Department, the
Department feels that appropriate notice should still be given to those
individuals so that they know their TWICs are now being used to comply
with 6 CFR 27.230(a)(12)(iv). The Department has provided a sample
privacy notice for high-risk chemical facilities to use in the CFATS
Personnel Surety Program PIA Update, published May 1, 2014. A revised
sample Privacy Act notice is also included in the PIA Update being
published concurrently with this notice.
In addition, a high-risk chemical facility will not submit
information to the Department if the facility opts to utilize Option 4
and to visually inspect a credential or document for any Federal
screening program that periodically vets individuals against the TSDB.
High-risk chemical facilities that opt to implement Option 4 are
encouraged, but are not required, to provide notice to each affected
individual whose Federal screening program credential or document is
being visually inspected in order to comply with 6 CFR
27.230(a)(12)(iv).
VII. Information a High-Risk Chemical Facility May Wish To Consider
Including in its SSP
When writing, revising, or updating their SSPs, high-risk chemical
facilities may wish to consider including information about the
following topics to assist the Department in evaluating the adequacy of
the security measures outlined in the SSP for RBPS12(iv):
1. General
Who does the facility consider an affected individual and
how does the facility identify affected individuals?
[cir] Who does the facility consider facility personnel and how
does the facility identify them?
[cir] Who does the facility consider unescorted visitors and how
does the facility identify them?
If the facility escorts any visitors, how does it escort
them?
How does the facility define its restricted areas and/or
critical assets for the purposes of RBPS 12?
Does the facility include computer systems or remote
access as either a restricted area or critical asset?
Which Option(s), or alternative approaches not described
in this notice, will the facility or its designee(s) use to check for
terrorist ties?
Does the facility intend to use one or more Options for
some affected individuals that it will not use for other affected
individuals? If so, which Option(s) apply to which groups of affected
individuals?
Will the facility opt to have a designee(s) submit
information about affected individuals? If so, what guidance will the
high-risk chemical facility establish for designee(s) when it submits
information (e.g., when are affected individuals considered to be
``facility personnel'' ``unescorted visitors,'' how will the facility
verify that notice has been provided to an affected individual before
information about him/her is provided to the Department)?
Does the high-risk chemical facility anticipate that any
individuals will require access to restricted areas or
[[Page 79066]]
critical assets without visitor escorts or without the background
checks listed in RBPS 12 under exceptional circumstances (e.g.,
foreseeable but unpredictable circumstances)? If so, who? If so, which
exceptional circumstances would warrant access without visitor escorts
or without the background checks listed in RBPS 12?
2. With Regard to Option 1
How will notice be provided to affected individuals that
information is being provided to the Department?
3. With Regard to Option 2
How will notice be provided to affected individuals that
information is being provided to the Department?
What will the facility do if NPPD is unable to verify an
affected individual's enrollment in another Department TSDB vetting
program?
What will be the timeframe for this follow-on action?
What will the facility do if NPPD does verify the
credential, but later during a periodic re-verification, is unable
verify the credential?
What will be the timeframe for this follow-on action?
Does the facility describe how it will comply with RBPS
12(iv) for affected individuals without credentials capable of being
verified under Option 2?
4. With Regard to Option 3
How will the facility identify those affected individuals
who possess TWICs?
How will the facility comply with RBPS 12(iv) for affected
individuals without TWICs?
How will the facility electronically verify and validate
TWICs of affected individuals?
Which reader(s) or Physical Access Control System (PACS)
will the facility be using? Or, if it is not using readers, how it will
use the CCL or CRL?
Where will the reader(s) or PAC(s) be located?
What mode or modes (i.e., which setting on the TWIC
Reader) will be used when verifying and validating the TWIC of an
affected individual? \27\
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\27\ See table 4.1 on page 18 of the TSA reader specification at
(http://www.tsa.gov/sites/default/files/publications/pdf/twic/twic_reader_card_app_spec.pdf).
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Will the TWIC of an affected individual be re-verified and
re-validated with TWIC readers, and, if so, how often?
What will the facility (or designee(s)) do if an affected
individual's TWIC cannot be verified or if the TWIC reader is not
functioning properly?
5. With Regard to Option 4
Upon which Federal screening program(s) does the facility
or designee intend to rely?
What document(s) or credential(s) issued by the Federal
screening program(s) will the facility visually verify?
What procedures will the facility use to allow affected
individuals to present document(s) or credential(s)?
How will the facility verify that the credential or
document presented by affected individuals is not fraudulent?
What procedures will the facility follow to visually
verify that a credential or document is current and valid (i.e., not
expired)?
Will the visual verification include the following?
[cir] Comparing any picture on a document or credential to the
bearer of the credential or document;
[cir] Comparing any physical characteristics listed on the
credential or document (e.g., height, hair color, eye color) with the
bearer's physical appearance;
[cir] Checking for tampering;
[cir] Reviewing both sides of the credential or document and
checking for the appropriate stock/credential material;
[cir] Checking for an expiration date; and
[cir] Checking for any insignia, watermark, hologram, signature or
other unique feature.
What will the facility do if it is unable to visually
verify an affected individual's credential or document, if the
credential or document fails visual verification, or if the credential
or document appears invalid, expired, or fraudulent?
6. With Regard to Other Options
A facility that chooses to propose an option not listed
above in its SSP should provide as much detail as possible to allow the
Department to consider the potential option and evaluate whether or not
it meets the RBPS 12(iv) standard.
Caitlin Durkovich,
Assistant Secretary, Office of Infrastructure Protection, National
Protection and Programs Directorate, U.S. Department of Homeland
Security.
[FR Doc. 2015-31625 Filed 12-17-15; 8:45 am]
BILLING CODE 9110-9P-P