CFATS Personnel Surety Program ICR – 30 Day Notice

On Tuesday, April 13th, the Infrastructure Security Compliance Division folks at DHS published a 30-day information collection request (ICR) notice in the Federal Register for the CFATS Personnel Surety Program (PSP). This is a follow-up to the original notice published last summer (June 10th, 2009; 74 FR 27555), responding to the numerous public comments submitted to DHS. This proposed program would allow DHS to conduct the personnel surety checks of personnel against the TSA’s Terrorist Screening Database for high-risk chemical facilities as required by 6 CFR 27.230(a)(12)(iv). This program will not replace facility responsibilities to conduct other background checks to verify identity, check criminal history, or validate legal authority to work in the United States. CFATS Personnel Surety Program The CFATS PSP will include a potential of three different types of information submissions by high-risk chemical facilities:

Initial submissions on affected individuals; Updated/corrected information on affected individuals; or Information that previously reported individuals are no longer affected.

DHS expects that it may require facilities to submit the information listed below to allow it to adequately screen individuals against the TSDB as well as identifying those CFATS covered facilities where the individual may have access to restricted areas or critical assets.

Full name Date of birth Place of birth Gender Citizenship Passport information Visa information Alien registration number DHS Redress Number (if available) Work phone number(s) Work e-mail address(es)

Follow-up information may be requested by DHS. In order to ensure that facilities may not assume that a request for follow-up implies that an individual has been identified on the TSDB, ISCD makes it clear that there are three reasons that they might request additional information on an affected person:

Confirm that an individual is or is not a match to a known or suspected terrorist on the TSDB; Provide redress for individuals who believe that they have been improperly impacted by the PSP; or As part of a data accuracy review and auditing process.

Affected personnel are all facility personnel (employees and contractors) that have access (either escorted or unescorted) to restricted areas or critical assets, or unescorted visitors who have access to those areas. Facilities will submit the required information via a PSP tool in the existing on-line Chemical Security Assessment Tool (CSAT). ISCD expects to provide for bulk data submissions as part of the PSP tool and requests comments from industry on what forms might be most appropriate for these bulk data submissions. Additionally, ISCD intends to allow facilities to use contractors, consultants or other outside agencies to submit the required data for them. This will be done under the “Preparer” provisions already allowed under other CSAT tools. ISCD will publish a schedule in the Federal Register of when facilities will be required to submit data on affected personnel, noting that the schedule will vary according to which Tier level the facility is assigned. A proposed schedule is included in this notice (75 FR 18853). Notification of TSDB Matches ISCD will send each facility a confirmation of their submissions to the PSP to allow the facility to demonstrate to inspectors that it has complied with the terrorist background check requirements of RBPS 12. In the event of a positive match against the TSDB, the Office of Transportation Threat Assessment and Credentialing (TTAC), the office that maintains the TSDB, will notify the FBI’s Terrorist Screening Center (TSC). The TSC will make the final determination if an individual is a match to a known or suspected terrorist listed in the TSDB. The TSC will make notifications to appropriate Federal law enforcement agencies for further investigation and response. Such agencies may contact the facility as part of their investigation. The Department does not intend to routinely notify affected facilities of positive TSDB matches. In response to comments that DHS should notify covered facilities if the TSDB check indicates a match with a known or suspected terrorist this ICR notes that the precise manner in which “DHS or Federal law enforcement entities could contact high-risk chemical facilities following vetting are beyond the scope of this PRA notice” (75 FR 18856). Paperwork Reduction Act Exemption DHS is including in this ICR a request for exemption from requirements of the Paperwork Reduction Act {5 CFR 1320.8(b)(3)}. The purpose of this exemption is to avoid having to require that facilities collect signatures of affected personnel affirming that they have been advised of certain information collection rules. This will not affect the notification requirements under the Privacy Act {5 U.S.C. § 552a(e)(3)} or other Federal, State, or local privacy rules or regulations. Public Comments DHS received 17 comments on the original 60-day ICR notice. DHS includes in this notice responses to those comments (75 FR 18852-6). ISCD has made appropriate revisions to the outline of the program provided in this notice. DHS requests public comments on the program outlined in this notice. In particular DHS requests comments on:

● Respond to the Department’s interpretation of the population affected by RBPS-12 background checks, as outlined in 6 CFR 27.230(a)(12); ● Respond to fact that the Department or 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; ● Respond to the Department’s intention to collect information that identifies the high-risk chemical facilities, restricted areas and critical assets to which eachaffected individual has access; and ● Respond to the Department on its intention to seek an exception to the notice requirement under 5 CFR 1320.8(b)(3).

Comments must be submitted by May 13th, 2010. Comments may be submitted electronically at www.Regulations.gov (Docket Number: DHS-2009-0026).