Complete Set of CFATS PS 60-Day Comments

Federal Register / Vol. 74, No. 110 / Wednesday, June 10, 2009 / Notices
Calendar
Year 2009
Effective Date for Calendar Year 2009
Rates
Consistent with previous annual
rate revisions, the Calendar
Year 2009 rates will be effective for services provided on/
or after January 1, 2009 to
the extent consistent with
payment authorities including
the applicable Medicaid State
plan.
Dated: February 4, 2009.
Robert G. McSwain,
Director, Indian Health Service.
[FR Doc. E9–13644 Filed 6–9–09; 8:45 am]

SUPPLEMENTARY INFORMATION:

Program Description

BILLING CODE 4165–16–P

DEPARTMENT OF HOMELAND
SECURITY
National Protection and Programs
Directorate Office of Infrastructure
Protection
[Docket No. DHS–2009–0026]

Submission for Chemical Facility AntiTerrorism Standards Personnel Surety
Program Information Collection 1670–
NEW

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AGENCY: National Protection and
Programs Directorate, Office of
Infrastructure Protection, Infrastructure
Security Compliance Division, DHS.
ACTION: 60-Day Notice and request for
comments: New information collection
request 1670–NEW.
SUMMARY: The Department of Homeland
Security, National Protection and
Programs Directorate, Office of
Infrastructure Protection, Infrastructure
Security Compliance Division (ISCD)
will be submitting the following
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. The information
collection is a new information
collection. The purpose of this notice is
to solicit comments during a 60-day
public comment period prior to the
submission of this collection to OMB.
The submission describes the nature of
the information collection, the
categories of respondents, the estimated
burden, and cost.
DATES: Comments are encouraged and
will be accepted until August 10, 2009.
This process is conducted in accordance
with 5 CFR 1320.8.

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Interested persons are
invited to submit comments on the
proposed information collection
through the Federal Rulemaking Portal
at http://www.regulations.gov. Follow
the instructions for submitting
comments. Comments must be
identified by docket number DHS–
2009–0026.
FOR FURTHER INFORMATION CONTACT: A
copy of this ICR, with applicable
supporting documentation, may be
obtained through the Federal
Rulemaking Portal at http://
www.regulations.gov.
ADDRESSES:

The Chemical Facility Anti-Terrorism
Standards (CFATS), 6 CFR Part 27,
require high-risk chemical facilities to
submit personally identifiable
information (PII) from facility personnel
and, as appropriate, unescorted visitors
with access to restricted areas or critical
assets at those facilities. This PII will be
screened against the consolidated and
integrated terrorist watch list
maintained by the Federal Government
in the Terrorist Screening Database
(TSDB) to identify known or suspected
terrorists (i.e., individuals with terrorist
ties).
High-risk chemical facilities must also
perform other relevant background
checks in compliance with CFATS
Personnel Surety risk-based
performance standard (RBPS) #12. See 6
CFR 27.230(a)(12)(i–iii) (covered
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’’).
The CFATS Personnel Surety Program is
not intended to halt, hinder, or replace
high-risk chemical facilities’
performance of background checks
currently required for employment or
access to secure areas of those facilities.
Background
On October 4, 2006, the President
signed the Department of Homeland
Security Appropriations Act of 2007
(the Act), Public Law 109–295. Section
550 of the Act provides the Department
of Homeland Security (DHS) with the
authority to regulate the security of
high-risk chemical facilities.
Section 550 requires that DHS’s
regulations establish risk-based
performance standards. RBPS #12 (6
CFR 27.230(a)(12)) requires that
regulated chemical facilities implement
‘‘measures designed to identify people

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27555

with terrorist ties.’’ The ability to
identify individuals with terrorist ties
requires use of information held in
Government-maintained databases.
Therefore, DHS is implementing the
CFATS Personnel Surety Program
which will allow chemical facilities to
comply with RBPS #12 to implement
‘‘measures designed to identify people
with terrorist ties.’’
Overview of CFATS Personnel Surety
Process
The CFATS Personnel Surety Program
identifies individuals with terrorist ties
by comparing PII submitted by each
high-risk chemical facility to the PII of
known or suspected terrorists on the
consolidated and integrated terrorist
watch list maintained by the Federal
Government in the TSDB.
The representative(s) of each high-risk
chemical facility with access to the
Chemical Security Assessment Tool
(CSAT), the online data collection portal
for CFATS, will submit PII of affected
individuals to the CFATS Personnel
Surety Program via CSAT. The PII to be
submitted is the data needed by DHS to
conduct screening against the
consolidated and integrated terrorist
watch list in the TSDB. Upon receipt of
each affected individual’s PII, the
CFATS Personnel Surety Program will
send a copy of the PII to the
Transportation Security Administration
(TSA). TSA will compare the PII
provided by the CFATS Personnel
Surety Program and the PII of known
and suspected terrorists on the
consolidated and integrated terrorist
watch list in the TSDB. TSA will
forward the results from all matches to
the Terrorist Screening Center (TSC),
which will make a final determination
of whether an individual is, or is not, a
match to an individual in the TSDB.
In the event that there is a positive
match, the TSC will notify the
appropriate Federal law enforcement
agency for coordination, investigative
action, and/or response.
For positive matches, the TSC may
contact the Federal agency that
nominated the individual to be listed on
the consolidated and integrated terrorist
watch list in the TSDB for further
details regarding the reasons for
nominating the individual.
DHS will not provide screening
results to high-risk chemical facilities
nor to the individuals whose PII is
submitted by high-risk chemical
facilities. As warranted, high-risk
chemical facilities may be contacted by
Federal law enforcement as a part of
appropriate law enforcement
investigation activity. (See the FBI
System of Records published in the

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27556

Federal Register / Vol. 74, No. 110 / Wednesday, June 10, 2009 / Notices

Federal Register on August 22, 2007, 72
FR 47073.)
The CFATS Personnel Surety Program
will send a ‘‘verification of submission’’
to the representative(s) of high-risk
chemical facilities when: (1) A new
individual’s PII has been submitted, (2)
an individual’s information has been
updated, and (3) when an individual’s
information has been removed because
he/she no longer has access to the highrisk chemical facility’s restricted areas
or critical assets. ‘‘Verifications of
submission’’ will allow for high-risk
chemical facilities to demonstrate
compliance with their facility Site
Security Plans and with RBPS 12.

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Affected Population
6 CFR 27.230(a)(12) requires facility
personnel and, as appropriate,
unescorted visitors with access to
restricted areas or critical assets to
undergo background checks. This
affected population will include (1)
facility personnel (e.g., employees and
contractors) with access (unescorted or
otherwise) to restricted areas or critical
assets, and (2) unescorted visitors with
access to restricted areas or critical
assets.
These background checks do not
affect facility personnel that do not have
access to facilities’ restricted areas or
critical assets, nor do they affect
escorted visitors.
Request for Exception to the
Requirement Under 5 CFR 1320.8(b)(3)
The CFATS Personnel Surety Program
intends to request from OMB an
exception to the Paperwork Reduction
Act requirement, contained in 5 CFR
1320.8(b)(3), that affected individuals
whose PII is submitted by high-risk
chemical facilities be notified of the
reasons for the collection, be notified
how the information will be used, be
given an estimate of the average burden
associated with the collection, and be
notified whether responses to the
collection are voluntary or mandatory.
The CFATS Personnel Surety Program
intends to request this exception in the
event that these notices are required.
Neither Section 550 of the Act nor
CFATS creates a requirement for highrisk chemical facilities to provide notice
to affected individuals whose PII is
submitted to the CFATS Personnel
Surety Program. DHS, however, expects
each high-risk facility to adhere to
applicable Federal, State, local, and
tribal laws, regulations, and policies
pertaining to notification to individuals
that their PII is being submitted to the
Federal Government. The CFATS
Personnel Surety Program will require
each high-risk chemical facility to

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certify that it is collecting and
submitting this information in
compliance with all applicable Federal,
State, local, and tribal laws, regulations,
and policies.
The CFATS Personnel Surety
Program’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, regulations or
policies pertaining to the privacy of
facility personnel and the privacy of
unescorted visitors. In fact, this
exception would allow the CFATS
Personnel Surety Program to avoid any
conflict with such laws, regulations, and
policies.
The CFATS Personnel Surety Program
intends to take several steps to provide
(1) adequate notice to high-risk
chemical facilities of their
responsibilities, and (2) general notice
to affected individuals whose
information will be submitted by highrisk chemical facilities to the CFATS
Personnel Surety Program through this
collection.
As part of Site Security Plans,
required by CFATS, the Department will
ask each high-risk chemical facility
‘‘Will the facility provide notification to
facility personnel and, as appropriate,
unescorted visitors with access to the
restricted areas or critical assets that
personal information about them has
been or will be submitted to DHS to
determine if they have terrorist ties?’’
High-risk chemical facilities that
respond positively shall then explain
their notification procedures.
• The CFATS Personnel Surety
Program will publish a specific Privacy
Impact Assessment.
• The CFATS Personnel Surety
Program will publish in the Federal
Register a specific System of Records
Notice.
• The CFATS Personnel Surety
Program will publish in the Federal
Register the proposed exemptions for
disclosure as required by the Privacy
Act.
• The CFATS Personnel Surety
Program will publish in the Federal
Register the final exemptions for
disclosure as required by the Privacy
Act.

whether the information will have
practical utility;
2. Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
3. Enhance the quality, utility, and
clarity of the information to be
collected; and
4. Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submissions
of responses.

Solicitation of Comments

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

The Office of Management and Budget
Is Particularly Interested in Comments
Which
1. Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including

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The Department Is Particularly
Interested in Comments Which
1. Respond to the Department’s
interpretation of the population affected
by RBPS #12 background checks
outlined in 6 CFR 27.230(a)(12);
2. Respond to fact 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; and
3. Respond to the Department on its
intention to seek an exception to the
notice requirement under 5 CFR
1320.8(b)(3).
Analysis
Agency
Department of Homeland Security,
Office of the Under Secretary for
National Protection and Programs
Directorate, Office of Infrastructure
Protection, Infrastructure Security
Compliance Division.
Title: CFATS Personnel Surety
Program
OMB Number: 1670–NEW
Background Check to Identify
Terrorist Ties for an Individual at a
High-Risk Chemical Facility
Frequency
As required in the schedule and
timing in the high-risk chemical
facilities Site Security Plan approved by
DHS
Affected Public

Number of Respondents
354,400 individuals

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Federal Register / Vol. 74, No. 110 / Wednesday, June 10, 2009 / Notices
Estimated Time Per Respondent
0.59 hours (35.4 minutes)

SUPPLEMENTARY INFORMATION:

Total Burden Hours
210,351.7 annual burden hours
Total Burden Cost (capital/startup)
$0.00
Total Burden Cost (operating/
maintaining)
$17,669,543
Signed: June 4, 2009.
Philip Reitinger,
Deputy Under Secretary, National Protection
and Programs Directorate Department of
Homeland Security.
[FR Doc. E9–13618 Filed 6–9–09; 8:45 am]
BILLING CODE 9110–9P–P

DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
[Docket No. USCG–2009–0446]

Merchant Mariner Medical Advisory
Committee; Vacancies
Coast Guard, DHS.
Notice of committee
establishment and request for
applications.
AGENCY:

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ACTION:

SUMMARY: The Secretary of Homeland
Security is establishing the Merchant
Mariner Medical Advisory Committee
(MMMAC) under authority of 6 U.S.C.
451 and shall operate under the
provisions of the Federal Advisory
Committee Act (FACA) (5 U.S.C. App.).
Individuals interested in serving on this
committee are invited to apply for
membership.
DATES: Completed application forms for
membership should reach the Coast
Guard on or before August 3, 2009.
ADDRESSES: You may request a copy of
the charter for the Merchant Mariner
Medical Advisory Committee or a form
to apply for membership by writing to
Captain Eric Christensen, Designated
Federal Officer (DFO) of the Merchant
Mariner Medical Advisory Committee,
2100 SW 2nd St., Washington, DC
20593. Completed applications should
be sent to the DFO at this same address.
A copy of this notice, the Committee
charter, and the application form are
available in our online docket, USCG–
2009–0446, at http://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Lieutenant J. Court Smith, Assistant
DFO of the Merchant Mariner Medical
Advisory Committee; telephone 1–202–
372–1128 or james.c.smith1@uscg.mil.

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Establishment of the Merchant Mariner
Medical Advisory Committee. The
Federal Advisory Committee Act
(FACA), 5 U.S.C. App. (Pub. L. 92–463),
governs the establishment of committees
by Federal agencies. This committee
will be established as a discretionary
advisory committee that will operate in
accordance with the provisions of the
Federal Advisory Committee Act
(FACA) (5 U.S.C. App.) and pursuant to
the provisions of 5 U.S.C. 451. The
Committee will advise, consult with,
report to, and make recommendations to
the Secretary on matters relating to the
medical evaluation process and
evaluation criteria for medical
certification of merchant mariners. This
may include but is not limited to:
• Commenting on Physical
Qualification Requirements;
• Developing, communicating, and
considering expert based and scientific
recommendations;
• Examining such other matters,
related to those above, that the Secretary
may charge the Committee with
addressing;
• Conducting studies, inquiries,
workshops, and seminars in
consultation with individuals and
groups in the private sector and/or state
and local government jurisdictions;
• Reviewing work from other
agencies’ medical advisory boards to
recommend uniform guidelines for
medical/functional fitness for operators
of commercial vessels.
The Committee will meet at least once
a year. It may also meet for additional
purposes. Subcommittees and working
groups may also meet to consider
specific problems.
Request for Applications
The Committee will be composed of
fourteen members. Ten Committee
members shall be health-care
professionals with particular expertise,
knowledge, or experience regarding the
medical examinations of merchant
mariners or occupational medicine.
Four Committee members shall be
professional mariners with knowledge
and experience in mariners’
occupational requirements.
Initial appointments to the MMMAC
shall be for terms of office of one, two,
or three years. Thereafter, members
shall serve terms of three years.
Approximately one-third of members’
terms of office shall expire each year. A
member appointed to fill an unexpired
term shall serve the remainder of that
term. All members may serve more than
one term. In the event the MMMAC
terminates, all appointments to the
committee shall terminate.

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In support of the policy of the Coast
Guard on gender and ethnic diversity,
we encourage qualified women and
members of minority groups to apply.
All members shall serve as Special
Government Employees (SGE), as
defined in section 202(a) of title 18,
United States Code. As a candidate for
appointment as an SGE, applicants are
required to complete a Confidential
Financial Disclosure Report (OGE Form
450). A completed OGE Form 450 is not
releasable to the public except under an
order issued by a Federal court or as
otherwise provided under the Privacy
Act (5 U.S.C. 552a). Only the Designated
Agency Ethics Official (DAEO) or the
DAEO’s designate may release a
Confidential Financial Disclosure
Report.
If you are interested in applying to
become a member of the Committee,
send a completed application to Captain
Eric Christensen, DFO of the MMMAC.
Send the application in time for it to be
received by the DFO on or before
August 3, 2009.
A copy of the application form is
available in the docket for this notice.
To visit our online docket, go to
http://www.regulations.gov, enter the
docket number for this notice USCG–
2009–0446 in the Search box, and click
‘‘Go >>.’’ Applicants may also request
an application form via fax at 1–202–
372–1918.
Dated: June 3, 2009.
J. A. Watson,
Rear Admiral, U.S. Coast Guard, Director,
Prevention Policy.
[FR Doc. E9–13634 Filed 6–9–09; 8:45 am]
BILLING CODE 4910–15–P

DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
[Docket ID FEMA–2008–0022]

Criteria for Preparation and Evaluation
of Radiological Emergency Response
Plans and Preparedness in Support of
Nuclear Power Plants; NUREG–0654/
FEMA–REP–1/Rev. 1 Supplement 4 and
FEMA Radiological Emergency
Preparedness Program Manual
AGENCY: Federal Emergency
Management Agency, DHS.
ACTION: Extension of comment period.
SUMMARY: The Federal Emergency
Management Agency (FEMA) is
extending the comment period for two
documents: The proposed Supplement 4
(Supplement 4) to ‘‘Criteria for
Preparation and Evaluation of

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file:///P|/Chemical%20Security%20Compliance%20Division/TO%...A/FR%20Notices/60%20Day%20Comments/DHS-2009-0026-0002.html

PUBLIC SUBMISSION

As of: August 03, 2009
Received: June 29, 2009
Status: Posted
Posted: June 30, 2009
Tracking No. 809e5b63
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0002
Comment Submitted by Scott Kirby Campbell

Submitter Information
Name: Scott Kirby Campbell
Address:
2017 Freeman Lk Rd
Oldtown, ID, 83822
Email: scott.campbell@abibow.com
Phone: 509-445-2304
Fax: 509-445-1233

General Comment
It is very difficult to comment on these proposed regulations without divulging
confidential information in this public forum.
Screening every unescorted visitor for potential terrorist ties (ie: truck drivers) to a
high risk facility is an impossible task.
How is the FBI terror watch list maintained? It seems, from different analysis I've
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read, that there is no standard method for review of this list.

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PUBLIC SUBMISSION

As of: August 03, 2009
Received: July 01, 2009
Status: Posted
Posted: July 01, 2009
Tracking No. 809e7059
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0003
Comment Submitted by Anonymous

Submitter Information
Address: United States,

General Comment
Will a TWIC card satisfy all the requirement standards?

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file:///P|/Chemical%20Security%20Compliance%20Division/TO%...A/FR%20Notices/60%20Day%20Comments/DHS-2009-0026-0004.html

PUBLIC SUBMISSION

As of: August 03, 2009
Received: July 02, 2009
Status: Posted
Posted: July 06, 2009
Tracking No. 809e83fd
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0004
Comment Submitted by Alwyn David Burger, Linde Electronics South Africa

Submitter Information
Name: Alwyn David Burger
Address:
Box 862
Ifafi
Hartbeespoortdam, North West, South Africa, 0260
Email: alwyn.burger@afrox.boc.com
Phone: 271-230-5438
Fax: 271-230-5437
Submitter's Representative: Andre Jooste
Organization: Linde Electronics South Africa

General Comment
Please be advise that I have no idea on how to assist or support this requirement,
our company exports gases to various parts in the world and rent some containers
from the USA.

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Regards
Alwyn

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PUBLIC SUBMISSION

As of: August 03, 2009
Received: July 07, 2009
Status: Posted
Posted: July 07, 2009
Tracking No. 809eb514
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0005
Comment Submitted by Patrick J. Coyle, Chemical Facility Security News

Submitter Information
Name: Patrick J Coyle
Address:
2 Island Creek Road
Seale, AL, 36875
Email: PJCoyle@aol.com
Phone: 706-888-8459
Organization: Chemical Facility Security News

General Comment
The attached comments were orignially published on my Chemical Facility
Security News blog on June 12th, 2009.

Attachments
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DHS-2009-0026-0005.1: Comment Submitted by Patrick J. Coyle, Chemical Facility
Security News (Attachment)

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Note: This was originally published on the Chemical Facility Security News blog on June
12th, 2009
Terrorist Background Check
Yesterday I reported on the DHS ICR for their proposed solution for conducting terrorist
database background checks for personnel with access to restricted areas or secure areas
within high-risk chemical facilities. Today I would like to take another look at the issue
with less of a reportorial approach. Specifically, I would like to take a look at some of the
items I would like to see discussed in public comments on this ICR.
Facility Notification
I noted yesterday that “The submitting facility would not be notified by DHS of the
results of the TSDB screening.” That means that if an employee’s name showed up on the
TSDB check, the facility would not be notified by DHS that that employee was
potentially a terrorist or linked to a terrorist. At most, the ICR notes that “high-risk
chemical facilities may be contacted by Federal law enforcement as a part of appropriate
law enforcement investigation activity” (74 FR 27555). There is no explanation of why
DHS would not notify the facility that there was a potential terrorist working at that
facility.
One can make a pretty good guess as to why DHS is taking this stance. First off, the mere
presence of a person’s name on the TSDB does not mean that the person is a terrorist or
has even associated with Terrorists. As we have seen with the ‘No Fly List’ there have
been a number of very public instances of confusion of innocent people with potential
terrorists because of name similarity. There are undoubtedly an at least equal number of
unreported instances where person’s name was incorrectly placed on the list.
This means that requiring or even allowing high-risk chemical facilities to make
personnel decisions based on the mere match of an employee’s name with a name on the
TSDB would be patently unfair. Civil liberties organizations should certainly applaud the
approach that DHS is taking.
On the other hand, the match does mean that there is at least a chance that an employee
with access to restricted areas or security areas at a high-risk chemical facility is a
terrorist planning an attack or a terrorist sympathizer providing information to terrorists
planning an attack. While a ‘Federal law enforcement’ agency is getting around to
conducting their investigation the planned terrorist attack could happen.
The DHS approach is probably the correct way to deal with this situation, but I think that
there needs to be a public discussion about the assumptions being made. This ICR and the
public comment period is the appropriate place for such a discussion.
Notifying Employees about the Check

DHS is proposing to effectively transfer responsibility to facility management for
informing individual employees about the Privacy Act issues regarding the facility
submission of PII (personally identifiable information). Since the facilities are the ones
actually collecting and transferring the data, I suppose that this makes a certain amount of
sense.
At the same time, however, DHS is proposing to publish Federal Register Notices about
the same Privacy Act requirements. While it might be reasonable to expect that high-risk
chemical facilities would read (or pay someone to read for them) the Federal Register
watching for such notices, it is beyond the realm of reasonable supposition to assume that
the average employee would do so.
I would like to suggest a reasonable alternative. DHS could come up with a poster
explaining the program similar to the ubiquitous OSHA posters about a wide variety of
regulatory programs. These could be posted on employee bulletin boards at high-risk
chemical facilities. While these types of posters are not read with any great frequency,
they are much more likely to be read by the affected parties that Federal Register Notices.
Unescorted Visitors
Having worked in chemical production facilities for a number of years, I agree that there
are a number of ‘visitors’ (not employees, not contractors) that frequently move about
certain areas of chemical facilities on a fairly routine basis. Small package delivery
drivers, a wide variety of vendors (uniform and industrial mats vendors come easily to
mind) are frequently overlooked because they are such a common sight at these facilities.
The big problem with most of these ‘visitors’ is that they are relatively invisible and there
is a certain amount of inevitable turnover in these positions. I would like to see some
comments on how high-risk chemical facilities would manage the identification and
clearance of these personnel. I think that rather than facilities doing background checks
on these ‘unescorted visitors’, covered chemical facilities will probably resort to
requiring escorts or setting their employers up more like contractors and transferring the
background check responsibility to those companies.

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0006_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 06, 2009
Status: Posted
Posted: August 07, 2009
Tracking No. 80a02d8a
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0006
Comment Submitted by Cynthia Hilton, Institute of Makers of Explosives

Submitter Information
Name: Cynthia Hilton
Address:
1120 Nineteenth St., NW
Suite 310
Washington, DC, 20036
Email: chilton@ime.org
Phone: 202-266-4319
Organization: Institute of Makers of Explosives

General Comment
See attached.

Attachments
file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0006_CP.html (1 of 2) [8/18/2009 10:08:28 AM]

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0006_CP.html

DHS-2009-0026-0006.1: Comment Submitted by Cynthia Hilton, Institute of Makers
of Explosives (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0006_CP.html (2 of 2) [8/18/2009 10:08:28 AM]

____________________________________________________________________________________________
The safety and security institute of the commercial explosives industry since 1913

August 6, 2009 

Infrastructure Security Compliance Division 
Office of Infrastructure Protection 
National Protection and Programs Directorate 
US Department of Homeland Security 
Washington, DC   20528 

RE:  DHS‐2009‐0026 1 
Information Collection Activity:  Chemical Facility Anti‐Terrorism Standards Personnel Surety Program  
OMB Control Number: 1670‐NEW 

Dear Sir or Madam: 

On behalf of the Institute of Makers of Explosives (IME), I am submitting comments on the US Department 
of Homeland Security (DHS) Infrastructure Security Compliance Division’s (ISCD) new information collection 
request (ICR) that deals with personnel surety requirements under the Chemical Facility Anti‐Terrorism 
Standards (CFATS), which the agency will be submitting to the Office of Management and Budget (OMB). 

Interest of the IME 

The IME is a non‐profit association founded to provide accurate information and comprehensive 
recommendations concerning the safety and security of commercial explosive materials.  The IME 
represents U.S. manufacturers and distributors of commercial explosive materials and oxidizers as well as 
companies providing related services.  These products are used in every state of the Union, and they are 
literally the workhorse of our industrial society for which there is currently no alternative.  Explosives are 
essential to energy production, metals and minerals mining, construction activities and supplies, and 
consumer products.  IME members are still learning about their final standing under the CFATS program.  
Those members who will be subject to the program will be impacted by the ISCD personnel surety 
requirements. 

Background 

Since 1970, the safety and security of explosives has been closely regulated by the Bureau of Alcohol, 
Tobacco, Firearms and Explosives (ATF) under Federal Explosives Law (FEL).   In recognition of this close 
regulation by ATF, the CFATS program applies to only a few named explosives.  Nevertheless, explosives 
manufacturing involves chemical precursors which are covered by the CFATS program and have resulted in 
explosives manufacturing sites being subject to both programs. 

FEL requires that persons who import, manufacture, store, or distribute explosives obtain a license and 
those who receive or use explosives, who do not have a license, obtain a permit.  Among the many 
requirements that these business entities must meet in order to obtain a license or a permit is to submit the 
names of all employees who are authorized to possess 2  explosives or those empowered to make 
1
2

74 FR 27555 (June 10, 2009). 
“Possession” is interpreted as both actual and constructive. 
1120 Nineteenth St., NW, Suite 310, Washington, DC  20036 ◊ 202‐429‐9280 

2

management decisions or policies to ATF for a background check.  The FEL standards for the background 
checks conducted by ATF are the forerunner of the background check standards that were subsequently 
adopted by DHS for the plethora of programs its administers for transportation workers. 3   Each is these DHS 
programs has adopted the core disqualifications used by the ATF.  The ATF threat assessment also includes a 
checked against the terrorist watch list. 

Comments 

With this perspective, IME offers the following comments: 

• Process:  We are disappointed that ISCD has chosen to implement this regulatory requirement through 
an ICR to OMB.  This approach does not guarantee all of the due process protections available under 
notice and comment rulemaking pursuant to the Administrative Procedures Act.  It sets an 
uncomfortable precedent. 

• Avoiding Regulatory Overlaps:  A purpose of the Paperwork Reduction Act is to “minimize the burden of 
the collection of information on those who are to respond.”  ISCD takes a critically important step 
toward minimizing the compliance burden of the CFATS personal surety requirements by allowing 
reciprocity with other DHS background check programs.  In guidance on the CFATS risk‐based 
performance standards (RBPS), ISCD states that  “workers … who [have] successfully undergone a 
security threat assessment conducted by DHS and [are] in possession of a valid DHS credential … will not 
need to undergo additional vetting by DHS.” 4   While we strongly support this policy, we note that the 
“document  is a ‘guidance document’ and does not establish any legally enforceable requirements.” 5   
We ask that ISDC and OMB ensure that this policy be implemented. 

Likewise, as explained above, ATF performs a security background check on all employees.  ISCD’s policy 
of reciprocity should extend to those whose backgrounds have been checked by the ATF.  It is important 
to note that, in fact, the ATF conducts the background check required by FEL.  Under CFATS, this task is 
left to employers.  Since the ATF disqualification standards are equivalent to the other DHS threat 
assessment programs that ISCD is prepared to reciprocally recognize, and ATF, another agency of the 
federal government, is performing this work, ISCD should find it sufficient for purposes of the CFATS 
personnel surety program to grant reciprocity to the employees of ATF licensees and permittees.  
Without this accommodation, the regulatory overlaps between the two agencies will impose 
unreasonable burdens on this segment of the regulated community without any corollary enhancement 
to security.  ISCD’s support for this accommodation should be prerequisite to OMB’s approval of this 
ICR. 

• Employer notification:  The ATF background check program provides notice to the employer and the 
employee whether employee has or has not cleared the agency’s background check. 6   This 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 process explosives.  The notice to the employee explains the grounds 
for the determination and provides information on how the disability may be relieved or appealed.  This 
approach contrasts with that of the proposed CFATS personnel surety program in that neither 
3

Hazardous materials endorsement threat assessment, Transportation worker identification credential (TWIC), 
Free and secure trade credential, NEXUS, etc. 

4

Risk‐based Performance Standards Guidance, May 2009, page 97, FN 22. 
5

Risk‐based Performance Standards Guidance, May 2009, page 97, footer. 
6

27 CFR 555.33. 

3

•

•

employers or employees will receive notification of a Terrorist Screening Database match.  We do not 
believe that this is in the best interests of other workers, the employer, or the public who remain in 
proximity to the suspect worker.  At minimum, ISCD should give notice to the employer that reveals the 
name of any employee who has failed the TSDB assessment.  

Compliance:  We understand that the standard of compliance for this requirement will be the 
submission of personal identifying information to ISCD.  Employers do not have to wait for notification 
of clearance before covered individuals may be permitted to unescorted access to restricted areas and 
critical assets.  However, we request that employers receive an electronic acknowledgement that the 
submitted information has been received.  We believe that this is important to demonstrate compliance 
and to ensure that personal identifying information has been received.   

We do not support the RBPS guidance statement that “the facility … still must provide DHS with 
sufficient identifying information about the [worker who has successfully undergone a security threat 
assessment conducted by DHS and is in possession of a valid DHS credential] to allow DHS to verify that 
the credential still is valid.” 7   (Emphasis added.)  First, the guidance document “does not establish any 
legally enforceable requirements.” 8  (Emphasis added.)  Second, these credentials should stand on their 
own.  Such security credentials are recognized at face value at any number of venues now.  Employers 
should not have to report those employees with these credentials. If ISCD believes that these credentials 
are insufficient for personnel surety validation, the agency should take its proof of a vulnerability gap to 
those other agencies within DHS that administer these credentialing programs for their action.  Likewise, 
ISCD should accept that the possession by an employer of a valid ATF license or permit means that ATF 
has vetted and cleared all of the employees covered by the license or permit.  No security purpose 
would be served to resubmit personal identifying information on these persons to ISCD.  Third, there 
should be no expectation that non‐MTSA facilities should be equipped with “readers” for TWIC 
credentials.   Recently, the House Homeland Security Committee stated that for non‐MTSA facilities, 
“the Committee does not intend to require that card readers be installed at all shipping facilities, rather, 
the Committee recognizes that a visual inspection of the card will provide the same level of security as 
provided under the current HME licensing process.” 9     

Program Requirements:  The truncated explanation in the ICR notice of how the personnel surety 
vetting program will work raises a number of questions.  What personal identifying information will have 
to be disclosed?  How is that information to be secured?  When and how will it be destroyed?  How 
often, if ever, will names have to be resubmitted?  Are employers required to notify ISCD when 
employees are no longer authorized to have access to restricted areas or critical assists, either because 
of termination or transfer to other company locations?  The answer to each of these questions will drive 
the cost of compliance.  We reserve the right to file additional comments, once ISCD clarifies these 
matters. 

Conclusion 

We appreciate the importance of assuring that employees with access to restricted areas and critical assets 
at CFATS’ regulated sites undergo background checks.  At the same, all federal agencies that require 
security‐based background checks should actively look for opportunities to harmonize the requirements for 
these checks and should reciprocally‐recognize equivalent programs.  The ISCD should carefully tailor the 
implementation of its personnel surety program, including recordkeeping and reporting, so that it is 
7
8

9

Risk‐based Performance Standards Guidance, May 2009, page 97, FN 22. 
Risk‐based Performance Standards Guidance, May 2009, page 97, footer. 
H.Rept. 111‐123, page 56. 

4

capturing only those employees not already covered and vetted under other equivalent programs.  Finally, 
we also believe that safety is served if employers are given notice about employers who may be a “known or 
suspected terrorists.” 

Thank you for the opportunity to comment. 

Respectfully, 

Cynthia Hilton 
Executive Vice President 

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0007_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 07, 2009
Status: Posted
Posted: August 10, 2009
Tracking No. 80a010e2
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0007
Comment Submitted by Marc J. Meteyer, Compressed Gas Association, Inc.

Submitter Information
Name: Marc J. Meteyer
Address:
4221 Walney Road
5th Floor
Chantilly, VA, 20151
Email: mmeteyer@cganet.com
Phone: 703-788-2711
Fax: 703-961-1831
Organization: Compressed Gas Association, Inc.

General Comment
Please find attached the Compressed Gas Association, Inc.'s (CGA) comments on Docket
No. DHS-2009-0026. If you have any difficulty with the attached file, or require any
additional information, please contact myself or CGA staff at (703) 788-2757.

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0007_CP.html (1 of 2) [8/18/2009 10:08:29 AM]

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0007_CP.html

Attachments
DHS-2009-0026-0007.1: Comment Submitted by Marc J. Meteyer, Compressed Gas
Association, Inc. (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0007_CP.html (2 of 2) [8/18/2009 10:08:29 AM]

4221 Walney Road, 5th Floor, Chantilly, VA 20151-2923
(703) 788-2700 „ Fax: (703) 961-1831 „ E-mail: cga@cganet.com „ Web Site: www.cganet.com

August 10, 2009

Mr. Dennis Deziel
U.S. Department of Homeland Security
National Protection and Programs Directorate
Office of Infrastructure Protection
Infrastructure Security Compliance Division
Mail Stop 8100
Washington, DC 20528
Docket No. DHS-2009-0026
Dear Mr. Deziel,
On behalf of the Compressed Gas Association (CGA), I am submitting comments regarding the
Chemical Facility Anti-Terrorism Standards Personnel Surety Program Information Collection 1670 NEW (Docket No. DHS-2009-0026) published on Wednesday, June 10, 2009, in the Federal Register.
CGA, founded in 1913, is dedicated to the development and promotion of safety standards and safe
practices in the industrial and medical gas industry. CGA represents over 125 member companies in
all facets of the industry: manufacturers, distributors, suppliers, and transporters of gases, cryogenic
liquids, and related products and services. Through a committee system, CGA develops technical
specifications, safety standards, and training and educational materials, and works with government
agencies to formulate responsible regulations and standards and to promote compliance with these
regulations and standards.
Without knowledge of the full personnel surety program, it was difficult to provide a complete
response to the personnel surety requirements proposed by DHS. A complete program outline with a
schedule for the implementation of this program and the duration between submission of employee
information and the employer’s receipt of a result of the employee’s status (approved or disapproved)
should be provided to facilitate a clear understanding of the program requirements. CGA reviewed the
information collection request and provides the following comments regarding personnel surety
practices based on the information presented in the Federal Register:
Comment 1: Changes to “affected population”
DHS now defines the “affected population” as “(1) facility personnel (e.g., employees and contractors)
with access (unescorted or otherwise) to restricted areas or critical assets, and (2) unescorted visitors
with access to restricted areas or critical assets.” (74 Fed. Reg. 27,556 (emphasis added)). This
definition expands the “affected population” beyond the scope of the regulation.
Pursuant to 6 CFR § 27.230(a) (12), a regulated facility need only 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 … ” In other words, so long as a
person is “under escort” (which could be even camera-based monitoring), then a CFATS-mandated
background check is unnecessary. Requiring facilities to perform background checks on escorted
individuals would be duplicative, would not enhance security, and is inconsistent with other regulatory
schemes (e.g., TWIC and MTSA).

Dennis Deziel
U.S. Department of Homeland Security
Docket No. DHS-2009-0026
Page 2 of 2

CGA recommends that the “affected population” description be clarified to indicate that an individual
entering a facility and remaining under escort does not require a background check.
Comment 2: Information management
The initial submission of Personally Identifiable Information (PII) will be a significant burden on
regulated facilities. Regulated facilities will also bear the continuing burden of updating submission
information. This will include notifying DHS “… when an individual’s information has been removed
because he/she no longer has access to the high-risk chemical facility’s restricted areas or critical
assets.” (74 Fed. Reg. 27,556).
Unless the entire facility is characterized as a “restricted area” or “critical asset,” the requirement to
continually update information into the personnel surety portion of the CSAT could be onerous. DHS
should permit a regulated facility to update personnel surety information on a periodic basis (e.g.,
annually). This mitigates the practical compliance challenges that real-time notification presents while
enhancing the quality of information that DHS receives.
CGA recommends that DHS clarify reporting requirements to require an annual frequency for the
submission of updated PII reports for each facility.
Comment 3: Employee notification and disputed findings
CGA recommends that all employees and potential candidates be notified in writing that a condition of
employment at any CFATS covered facility is that they must undergo a background check consistent
with the requirements of 6 CFR § 27.230 including eligibility for employment, criminal history, and
terrorist list. They should also be advised of their right to contest the findings of this procedure and
how that process will be managed.
Additionally, CGA recommends that DHS develop and publish a procedure to resolve disputed
background check findings, similar to those published in the TWIC regulations.
Comment 4: Approved third party vendors
Most compressed gas facilities utilize third party vendors to complete background checks for
employees; allowing these vendors to prepare and submit PII reports to DHS would encourage
efficiency in the timely submission of PII requirements.
CGA recommends that each facility should be authorized to designate an approved third-party vendor
to complete personnel surety requirements (including submission of PII information to DHS).
CGA commends the Department of Homeland Security for the continued development of the
Chemical Facility Anti-Terrorism Standards programs and providing stakeholders the opportunity to
provide comments on personnel surety practices.
Sincerely,

Marc J. Meteyer
President and CEO

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0008_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 10, 2009
Status: Posted
Posted: August 10, 2009
Tracking No. 80a03dbd
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0008
Comment Submitted by Boyd Stephenson, American Trucking Associations

Submitter Information
Name: Boyd Stephenson
Address:
950 N Glebe Rd Ste 210
Arlington, VA, 22203
Email: bstephenson@trucking.org
Phone: 703-838-7982
Organization: American Trucking Associations

General Comment
Please find the comments of the American Trucking Associations attached to this
submission.

Attachments
file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0008_CP.html (1 of 2) [8/18/2009 10:08:30 AM]

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0008_CP.html

DHS-2009-0026-0008.1: Comment Submitted by Boyd Stephenson, American
Trucking Associations (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0008_CP.html (2 of 2) [8/18/2009 10:08:30 AM]

American Trucking Associations
950 N. Glebe Road, Suite 210, Arlington, VA 22203

Driving Trucking’s Success

August 10, 2009

Via Regulations.gov
Philip Reitinger
Deputy Under Secretary
National Protection and Programs Directorate
Department of Homeland Security

Re:

Docket No. DHS-2009-0026: Submission for Chemical Facility Anti-Terrorism
Standards Personnel Surety Program Information Collection 1670-NEW

The American Trucking Associations (ATA) 1 is pleased to offer its comments on the
Department of Homeland Security’s National Protection and Programs Directorate’s Office of
Infrastructure Protection’s Submission for Chemical Facility Anti-Terrorism Standards Personnel
Surety Program Information Collection 1670-NEW. 2 As the primary representative of the
trucking industry, ATA’s member companies carry materials regulated in the Chemical Facility
Anti-Terrorism Standards’ (CFATS) Appendix A as well as other non-regulated loads to and
from CFATS-regulated facilities. 3
As part of the Risk Based Performance Standards (RBPS) mandated under the CFATS
program, facilities must institute background checks and submit biographical information on all
employees, vendors, and visitors that will have unescorted access to sensitive areas of the
CFATS facility. 4 This includes truck drivers who visit the facility. DHS exempts individuals
who possess a credential that requires a DHS performed Security Threat Assessment (STA) from
the facility background check on the grounds that these individuals have already been properly
vetted by DHS. The credentials meeting this standard would include the Transportation Worker
Identification Credential (TWIC), the Hazardous Materials Endorsement (HME) on a
Commercial Driver’s License, and the Free and Secure Trade (FAST) card. ATA supports these
exemptions for commercial drivers who already have undergone one of the alternative STAs
mentioned above. ATA believes that any of these DHS established STAs should continue to
comply with the CFATS requirements without any further need for commercial drives to provide

1

ATA is a federation of motor carriers, state trucking associations, and national trucking conferences that
promotes and protects the interests of the trucking industry. Directly, and through its affiliated organizations, ATA
represents more than 37,000 motor carriers of every size, type, and class in the U.S., Canada and Mexico.
2
See 74 Federal Register 27555-27557 (June 10, 2009).
3
See 72 Federal Register 65395-65435 (November 20, 2007).
4
See 6CFR 27.230(a)(12).

Comments of the American Trucking Associations
Page 2 of 2
additional information under a biographical submission process. 5 Specifically ATA believes
DHS should:
•
•

Expand the RBPS Guidance document to make clear that all DHS-performed
STAs, including TWIC, CDLs with HMEs and FAST cards, are acceptable
credentials under the CFATS regulations; and
include training for CFATS-regulated facility-personnel using the Chemical
Security Assessment Tool (CSAT) that clearly notes that anyone holding any of
the above forms of identification is not required to undergo a background check
under the CFATS program.

Although the CFATS Final Rule clearly states that personnel holding any Departmentissued credential issued after an STA would satisfy the requirements for a CFATS background
check, the CFATS Risk-Based Performance Standards Guidance mentions TWIC as the only
acceptable credential. DHS should revise this section of the Guidance to list all of the
credentials that satisfy the personnel surety requirements. Other DHS-issued credentials that
would meet this threshold include the STA for CDLs wth HMEs, the FAST cards, SIDA cards,
and any other credentials that require STAs equivalent to those required in 6 CFR 27.230(a)(12).
Furthermore, DHS should revise its Chemical Security Assessment Tool (CSAT) to make
clear that facility-employees need not submit the biographical details for individuals holding a
credential that was linked to a DHS performed STA. Lacking direct access to the CSAT portal,
ATA cannot directly comment on specific changes to its operation. However, fields that hold the
individual’s name, the type of credential, and the credential number should meet the
requirements for individuals holding an active, valid STA. The Department should also
highlight these issues during any training or online help provided in the CSAT tool.
Thank you for considering ATA’s concerns on the CSAT Information Collection.
Adopting these minor changes to the CFATS program can have major impacts to facilitate the
flow of commerce while preserving a high level of security. Should you have any questions
related to these issues, please contact the undersigned at 703-838-7982 or
bstephenson@trucking.org.
Respectfully submitted,

Boyd Stephenson
Manager
Security and Cross Border Operations
American Trucking Associations
5

See 72 Federal Register 17709 (April 9, 2007).

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0009_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 10, 2009
Status: Posted
Posted: August 10, 2009
Tracking No. 80a04b2c
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0009
Comment Submitted by David L. Leiting, BP

Submitter Information
Name: David L. Leiting
Address:
501 Westlake Park Boulevard
Houston, TX, 77253-3092
Email: david.leiting@bp.com
Phone: 281-366-3104
Organization: BP

General Comment
BP's comments to the docket regarding the Chemical Facility Anti-Terrorism Standards
and Personnel Surety.

Attachments
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file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0009_CP.html

DHS-2009-0026-0009.1: Comment Submitted by David L. Leiting, BP (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0009_CP.html (2 of 2) [8/18/2009 10:08:29 AM]

David L. Leiting
Director of Security, Western Hemisphere
Group Security
BP p.l.c.
501 Westlake Park Boulevard
P O Box 3092
Houston, Texas 77253-3092

August 10, 2009
Re:

Docket No. DHS-2009-0026
Chemical Facility Anti-Terrorism Standards
Personnel Surety Program Information Collection

BP America (“BP”) has closely followed the development and application of the Chemical Facility
Anti-Terrorism Standards (“CFATS”). Pursuant to 6 C.F.R. § 27.230(a)(12), covered facilities must
“[p]erform 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 . . . .”
On June 10, 2009, the Department of Homeland Security (“DHS”) published a request for comments
in the Federal Register seeking information regarding CFATS and personnel surety. BP is pleased
to offer the following comments:

Comment:

The Scope Of Personally Identifiable Information That Covered
Facilities Must Submit To DHS For The Purposes of 6 C.F.R.
§ 27.230(a)(12)(iv) Remains Unclear

Recommendation:

DHS Should Limit The Type Of Personally Identifiable Information
That A Covered Facility Must Submit To DHS

Discussion: To screen certain individuals against the Terrorist Screening Database (“TSDB”) DHS
intends to collect Personally Identifiable Information (“PII”). DHS has appropriately considered this
regulatory requirement “an inherently governmental function that necessarily includes a check of
classified databases that are not commercially available[,]” and DHS will “designate a secure portal
or other method for the submission of [PII] for each employee or contractor for whom a TSDB check
is required in the [Site Security Plan].” 72 Fed. Reg. 17,709 (Apr. 9, 2007).
The scope of DHS’s PII collection, however, remains unclear. In 2007, DHS stated that the
requested PII “will be the name, date of birth, address, and citizenship, and if applicable, the passport
number, DHS redress number, and information concerning whether the person has a DHS credential
or has previously applied for a DHS credential.” Id. (internal citation omitted).
More recently, however, DHS has indicated that it may expand the scope of PII that it collects. In a
May 18, 2009 briefing entitled “Chemical Facility Anti-Terrorism Standard: Personnel Surety,” DHS
stated that the “PII that may be collected is full name, address, phone numbers, date of birth,
physical description, citizenship, and passport and visa information, when applicable.” BP believes

Docket No. DHS-2009-0026
Page 2 of 3
that DHS must limit the scope of collected information—seeking only what is necessary to conduct
an inquiry against the TSDB and no more.
Several reasons support a narrowly tailored information collection requirement. In the chemical and
petrochemical industry, PII sought from employees, contractors, and even facility visitors is limited.
Privacy laws and information security considerations restrict how data are collected, used, stored,
and destroyed. Many companies do not collect Social Security Numbers unless absolutely
necessary, and there is no reasonable alternative (e.g., for tax reporting purposes). Similarly,
passport and visa numbers are collected on a case-by-case basis. Employers virtually never collect
PII related to physical description. Such information may reflect the subjective view of the person
collecting the data and is of little long-term value. Because employers typically do not collect (and
therefore do not retain) PII related to physical description, passports, and visas, gathering this
information would be practically difficult.
Comment:

The Transfer Of PII From A Covered Facility To DHS Should Be
Minimally Disruptive

Recommendation:

DHS Should Permit Covered Facilities To Submit PII To DHS En
Masse

Discussion: At a large facility with hundreds (or thousands) of employees, contractors, and
unescorted visitors with access to restricted areas or critical assets, communicating PII to DHS could
present a logistical challenge. DHS has only indicated that it will “designate a secure portal or other
method for the submission of [PII] for each employee or contractor for whom a TSDB check is
required ….” 72 Fed. Reg. 17,709 (Apr. 9, 2007).
The mechanics of this process are unknown. BP encourages DHS to consider the procedural and
logistical challenges of large-scale data collection and transmission when developing the personnel
surety portal component of the Chemical Security Assessment Tool (“CSAT”). DHS should permit
a covered facility to transmit data en masse (e.g., via a spreadsheet or other readily available
electronic means). That is, a covered facility would collect the required PII in a single file (or series
of files) and upload it to DHS. Anything to the contrary—such as the manual entry of discrete
information into data fields—would result in an undue burden to the regulated community while
increasing human error and information security concerns.
Alternatively, DHS should permit third party vendors to enter PII into the CSAT on a facility’s
behalf as an authorized agent. During the notice-and-comment period for the Risk-Based
Performance Standards (“RBPS”) Guidance Document, one commentator asked whether “third party
providers will be able to play a role in the TSDB process (i.e., can they submit employee information
on behalf of a facility).” U.S. DEP’T OF HOMELAND SEC., SUMMARY OF PUB. COMMENTS RECEIVED
ON THE DRAFT RISK-BASED PERFORMANCE STANDARDS GUIDANCE DOCUMENT AND THE
DEPARTMENT OF HOMELAND SEC.’S RESPONSE TO THE COMMENTS 10 (May 15, 2009).
DHS responded, stating that “[a]s for third-party involvement in the TSDB process, the Department
is still determining the mechanism through which facilities will satisfy 6 C.F.R.
§ 27.230[(a)](12)(iv), and so cannot state with certainty if there will be a role for third-party
providers in that process.” Id. Considering that many companies will utilize a third-party to

Docket No. DHS-2009-0026
Page 3 of 3
accomplish the commercially available aspects of RBPS 12 (i.e., 6 C.F.R. §§ 27.230(a)(12)(i)–(iii)),
it is practical and logical to permit authorized third-parties to help manage TSDB compliance.
Comment:

DHS Should Not Enlarge The Population Affected By 6 C.F.R.
§ 27.230(a)(12)

Recommendation:

6 C.F.R. § 27.230(a)(12) Should Apply Only To Individuals Who Have
Unescorted Access To Restricted Areas Or Critical Assets

Discussion: Pursuant to 6 C.F.R. § 27.230(a)(12), a covered facility must “[p]erform 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 . . . .” DHS has now defined
the “Affected Population” and states that this “will include (1) facility personnel (e.g., employees
and contractors) with access (unescorted or otherwise) to restricted areas or critical assets, and (2)
unescorted visitors with access to restricted areas or critical assets.” 74 Fed. Reg. 27,556 (June 10,
2009) (emphasis added).
The inclusion of the phrase “or otherwise” is a departure from previous indications regarding the
extent of the background check requirement. In the responses to comments published in the April 7,
2007 preamble to the CFATS Interim Final Rule, DHS stated that “the facility shall identify critical
assets and restricted areas and establish which employees and contractors may need unescorted
access to those areas or assets, and thus must undergo a background check.” 72 Fed. Reg. 17,708
(Apr. 7, 2007) (emphasis added).
Screening escorted personnel also contravenes established security regulations in similar contexts.
An individual without a Transportation Worker Identification Credential may access the secure areas
of a Maritime Transportation Security Act-regulated facility so long as the individual is escorted.
See U.S. COAST GUARD, NAVIGATION AND VESSEL INSPECTION CIRCULAR NO. 03-07, Enclosure (3)
10 (July 2, 2007). Similarly, a CFATS facility should have no obligation to subject escorted
individuals (whether employees, contractors, or visitors) to the personnel surety validation process.
BP appreciates the opportunity to submit comments to the record. Should DHS have any questions
or require additional information, please do not hesitate to contact me.
Sincerely,

David Leiting

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0010_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 10, 2009
Status: Posted
Posted: August 10, 2009
Tracking No. 80a04d2f
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0010
Comment Submitted by Susan Amodeo-Cathey, American Air Liquide USA LLC

Submitter Information
Name: Susan Amodeo-Cathey
Address:
2700 Post Oak Boulevard
Suite 1800
Houston, TX, 77056
Email: susan.amodeo-cathey@Airliquide.com
Phone: 713-624-8214
Organization: American Air Liquide USA LLC

General Comment
Air Liquide is pleased to provide the following comments regarding Risk-Based
Performance Standard Number 12 and the Chemical Facility Anti-Terrorism Standards.

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file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0010_CP.html

Attachments
DHS-2009-0026-0010.1: Comment Submitted by Susan Amodeo-Cathey, American
Air Liquide USA LLC (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0010_CP.html (2 of 2) [8/18/2009 10:08:20 AM]

Susan Amodeo-Cathey
Director, Health, Safety, Environmental, & Security
Air Liquide USA LLC

August 10, 2009

Mr. Dennis Deziel
Infrastructure Security Compliance Division
U.S. Department of Homeland Security
Mail Stop 8100
Washington, D.C. 20528

Re:

DHS-2009-0026
Personnel Surety Program; Information Collection Request

Dear Mr. Deziel:
American Air Liquide Holdings, Inc. and its U.S. subsidiaries (collectively, “Air Liquide” or “the
Company”) continue to closely monitor the Chemical Facility Anti-Terrorism Standards (“CFATS”). As
a responsible operator, the security of Air Liquide employees, facilities, and the communities in which we
operate are among the Company’s highest priorities. We remain committed to chemical facility security
regulations that meaningfully enhance the protection of our people and assets.
On June 10, 2009, the Department of Homeland Security (“DHS”) published an Information Collection
Request in the Federal Register regarding the CFATS personnel surety program established by RiskBased Performance Standard (“RBPS”) 12. As a member of the Compressed Gas Association (“CGA”),
Air Liquide incorporates CGA’s comments by reference and is pleased to offer these additional comments
to the record:
Comment:

The Definition of “Affected Population” Expands the Scope of RBPS 12

In the Information Collection Request, DHS defines the affected population as “(1) facility personnel
(e.g., employees and contractors) with access (unescorted or otherwise) to restricted areas or critical
assets, and (2) unescorted visitors with access to restricted areas or critical assets.” 74 Fed. Reg. 27,556
(June 10, 2009) (emphasis added). In the preamble to the CFATS Interim Final Rule (“IFR”), however,
DHS states that “…the facility shall identify critical assets and restricted areas and establish which
employees and contractors may need unescorted access to those areas or assets, and thus must undergo a
background check.” 72 Fed. Reg. 17,708 (Apr. 9, 2007) (emphasis added). These two statements are in
conflict: DHS should not use the Information Collection Request to redefine the affected population and
should maintain consistency with the original interpretation of the affected population as described in the
CFATS IFR.

American Air Liquide Holdings, Inc.
Page 2 of 3
Comment:

DHS Should Provide Terrorism Screening Database (“TSDB”) Results to the Submitting
Facility and Affected Individual

The CFATS IFR stated that “[w]here appropriate, DHS will notify the facility and applicant via U.S. mail,
with information concerning the nature of the finding and how the applicant may contest the finding.” 72
Fed. Reg. 17,709 (Apr. 9, 2007). Under DHS’s current TSDB proposal, however, neither will occur.
Contradicting its earlier intent, DHS now indicates that it “will not provide screening results to high-risk
chemical facilities nor to the individuals whose [Personally Identifiable Information (“PII”)] is submitted
by high-risk chemical facilities.” Rather, only when part of an “appropriate law enforcement investigation
activity” might DHS contact the high-risk facility that submitted the PII. 74 Fed. Reg. 27,555 (June 10,
2009).
While Air Liquide recognizes that there may be circumstances when it is either appropriate or
inappropriate to contact the facility in the context of a law enforcement investigation, DHS should not
withhold TSDB screening results as a general matter. DHS should communicate its findings as
previously indicated in the CFATS IFR: (1) notification to the affected individual affords a meaningful
opportunity for redress pursuant to 6 CFR § 27.310(a)(1); and (2) notification to the facility enables the
facility itself to take appropriate action – indeed, as the first line of defense against some security threats –
such as who has access to restricted areas or critical assets – the facility has a personnel management role
and obligation.
Comment:

DHS Should Permit Authorized Third Parties to Assist Covered Facilities in Submitting PII
to DHS

The CFATS personnel surety requirement includes “[m]easures designed to identify people with terrorist
ties[.]” 6 CFR § 27.230(a)(12)(iv). DHS has indicated that it will perform this “inherently governmental
function” using PII provided by covered facilities. Covered facilities will submit PII to DHS using “a
secure portal or other method for the submission of application data for each employee or contractor for
whom a TSDB check is required in the [Site Security Plan].” 72 Fed. Reg. 17,709 (April 9, 2007).
The initial submission of PII—especially for facilities with hundreds or thousands of individuals who
must be vetted—could be a significant and time-intensive process. Air Liquide encourages DHS to
permit authorized third parties to assist covered facilities with the submission of PII. This could include,
for example, permitting a vendor that the covered facility utilizes to perform the commercially available
aspects of 6 CFR § 27.230(a)(12) to access the secure portal (i.e., the Chemical Security Assessment
Tool) and submit PII on behalf of the covered facility.
Comment:

Updating PII Could Create an Undue Burden

The Information Collection Request states that “[t]he CFATS Personnel Surety Program will send a
‘verification of submission’ to the representative(s) of high-risk chemical facilities when: (1) A new
individual’s PII has been submitted, (2) an individual’s information has been updated, and (3) when an
individual’s information has been removed ….” 74 Fed. Reg. 27,556 (June 10, 2009) (emphasis added).
Because DHS has not indicated the specific nature of the PII that will be submitted pursuant to 6 CFR §
27.230(a)(12)(iv), updating an individual’s information could create an undue burden. If the PII includes
records that may change frequently, such as a phone number or address, the burden to covered facilities

American Air Liquide Holdings, Inc.
Page 3 of 3
will be significant. By definition, covered facilities would be forced to monitor employees, contractors,
and visitors who are subject to the CFATS personnel surety requirement for changes to their PII and
continually update that information.
DHS can mitigate this burden by: (1) seeking only the PII necessary to satisfy a TSDB check; (2) using
PII that is unlikely to change (e.g., a person’s name and date of birth); and (3) permitting covered
facilities to update PII on a periodic basis (e.g., annually). This would alleviate the practical compliance
challenges that real-time PII updating presents while enhancing the quality of information that DHS
receives.
Air Liquide appreciates the opportunity to comment on the CFATS personnel surety program. We look
forward to a continued partnership with DHS and would be pleased to answer any questions. Please do
not hesitate to contact me by telephone (713-624-8214) or by email (susan.amodeocathey@Airliquide.com).

Sincerely,

Susan Amodeo-Cathey
Director of Health, Safety, Environmental, & Security
America Air Liquide, Inc.

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0011_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 10, 2009
Status: Posted
Posted: August 10, 2009
Tracking No. 80a04daf
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0011
Comment Submitted by Carolyn Myers-Simmonds, First Advantage Background Services
Corporation

Submitter Information
Name: Carolyn Myers-Simmonds
Address:
100 Carillon Pkwy
St. Petersburg, FL, 33716-1207
Email: carolyn.myerssimmonds@fadv.com
Phone: 727-214-1067
Organization: First Advantage Background Services Corporation

General Comment
Pursuant to the June 10, 2009 Information Collection Request, First Advantage
Background Services Corporation is pleased to provide comments to the record regarding
personnel surety.

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file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0011_CP.html

Attachments
DHS-2009-0026-0011.1: Comment Submitted by Carolyn Myers-Simmonds, First
Advantage Background Services Corporation (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0011_CP.html (2 of 2) [8/18/2009 10:08:22 AM]

August 10, 2009

Mr. Dennis Deziel
U.S. Department of Homeland Security
National Protection and Programs Directorate
Office of Infrastructure Protection
Infrastructure Security Compliance Division
Mail Stop 8100
Washington, D.C. 20528

Re:

Docket No. DHS-2009-0026

First Advantage Background Services Corporation (“First Advantage”) is a leading provider of risk mitigation
and background screening solutions. First Advantage has conducted more than 300,000 individual background
checks for clients around the world. Among the U.S. chemical and petrochemical critical infrastructure in
particular, over 80 refineries and chemical processing facilities and 4,100 contractor companies are enrolled in a
First Advantage background screening program, which operates in conjunction with the Industrial Safety
Training Council (“ISTC”) and the thirteen other members of the Safety Council Security Consortium
(“SCSC”).1
On June 10, 2009, the Department of Homeland Security (“DHS”) published an information collection request
in the Federal Register seeking comment on Risk-Based Performance Standard (“RBPS”) 12 of the Chemical
Facility Anti-Terrorism Standards (“CFATS”).2 First Advantage is pleased to offer the following comment:
DHS Should Permit Authorized Third-Parties to Assist Covered Facilities in Managing Terrorist
Screening Database (“TSDB”) Compliance
Pursuant to 6 CFR § 27.230(a)(12)(iv), covered facilities must submit Personally Identifiably Information
(“PII”) to DHS. DHS has indicated that it will send a “verification of submission” when “(1) A new
individual’s PII has been submitted, (2) an individual’s information has been updated, and (3) when an
individual’s information has been removed because he/she no longer has access to the high-risk chemical
facility’s restricted areas or critical assets.”3 This will require covered facilities not only to monitor individuals
for changes to their PII but also to inform DHS when new individuals need access to restricted areas or critical
assets, or no longer need such access. While the mechanics of this process remain in development, it is clear
that the management of PII necessitates the frequent transmission of data between a covered facility and DHS
via the Chemical Security Assessment Tool (“CSAT”).
Unfortunately, however, DHS has not indicated the role that third-parties can serve in the context of
6 CFR § 27.230(a)(12)(iv). Responding to a question on this topic, DHS recently stated that “the Department
is still determining the mechanism through which facilities will satisfy [the TSDB requirement], and so cannot
1

First Advantage’s relationship with ISTC and the other thirteen SCSC members provides many benefits to the chemical industry,
some of which include an effective, systematic screening process, broad geographic coverage, consistency of screening standards,
cost effectiveness of screening “reciprocity,” timeliness of processing, and standardized application of compliance efforts.
2
74 Fed. Reg. 27,555 (June 10, 2009).
3
Id. at 27,556.

First Advantage – Personnel Surety Comments
Page 2 of 2
state with certainty if there will be a role for third-party providers in that process.”4 First Advantage believes
that authorized third-parties have an important role in this process and should be permitted to serve as a
covered facility’s agent for TSDB compliance purposes. Among other reasons:
1. Background check providers will assist covered facilities with the aspects of RBPS 12 that are
not “inherently governmental,” including measures to verify and validate identity, check criminal
history, and verify and validate legal authorization to work. See 6 CFR § 27.230(a)(12)(i-iii).
Allowing third-parties to facilitate the management and submission of PII to DHS is a logical
extension of a background check provider’s current role as a trusted agent.
2. Some covered facilities may have hundreds or thousands of individuals that will require
unescorted access to restricted areas or critical assets. This, in turn, will result in thousands of
discrete PII data sets that must be provided to DHS via the CSAT as an initial matter (i.e.,
following DHS’s issuance of a Letter of Authorization). Because PII will change, TSDB
compliance represents an ongoing process of data management. Authorized third-parties can
alleviate the operational and practical challenges that may result from these requirements.
3. Background check providers understand the information security and privacy protections that
apply to PII. A web of federal, state, and local laws protect PII, and many corporations
outsource their personnel surety needs specifically for this reason. Experienced background
check providers will help covered facilities ensure that compliance with one law – CFATS –
does not cause noncompliance with other laws governing the collection, use, storage, or
destruction of PII. Indeed, DHS has stated that “[t]he CFATS Personnel Surety Program’s
request for an exception to the requirement under 5 CFR § 1320.8(b)(3) would not exempt highrisk chemical facilities from having to adhere to applicable Federal, State, local, or tribal laws,
regulations or policies pertaining to the privacy of facility personnel and the privacy of
unescorted visitors. In fact, this exception would allow the CFATS Personnel Surety Program to
avoid any conflict with such laws, regulations, and policies.”5
Thank you for the opportunity to submit comments to the record. Should you have any questions or require
additional information, please do not hesitate to contact me by telephone (727-214-1067) or by email
(carolyn.myerssimmonds@fadv.com).
Sincerely,

Carolyn Myers-Simmonds
Carolyn Myers-Simmonds
Chief Regulatory Counsel
First Advantage Background Services Corporation

4

U.S. Dep’t of Homeland Sec, Summary of Pub. Comments Received on the Draft Risk Based Performance Standards Guidance
Document and the Dep’t of Homeland Sec.’s Response to the Comments 10 (May 15, 2009).
5
74 Fed. Reg. 27,556 (June 10, 2009) (emphasis added).

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0012_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 10, 2009
Status: Posted
Posted: August 10, 2009
Tracking No. 80a03dd8
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0012
Comment Submitted by Russell Melancon, Industrial Safety Training Council

Submitter Information
Name: Russell Melancon
Address:
324 Highway 69
Nederland, 77627
Email: Russell@istc.net
Phone: 409-724-2565
Organization: Industrial Safety Training Council

General Comment
Please see the attached document.

Attachments

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file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0012_CP.html

DHS-2009-0026-0012.1: Comment Submitted by Russell Melancon, Industrial
Safety Training Council (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0012_CP.html (2 of 2) [8/18/2009 10:08:25 AM]

324 Highway 69
Nederland, TX 77627
Phone (409) 724-2565
Fax (409) 724-2671
www.istc.net

8200 North Main
Baytown, TX 77521
Phone (281) 421-0459
Fax (281) 421-8130

600 Marina Street
Beaumont, TX 77703
Phone (409) 833-2378
Fax (409) 833-2376
www.bestcomplex.com

DEPARTMENT OF HOMELAND SECURITY
National Protection and Programs Directorate
Office of Infrastructure Protection
Request for Comments (74 FR 27555) on
New Information Collection Request 1670-NEW
[Docket No. DHS-2009-0026]
COMMENTS OF:
Industrial Safety Training Council
Safety Council Security Consortium

I.

INTRODUCTION

The Industrial Safety Training Council (“ISTC”) and the Safety Council Security
Consortium (“SCSC”) appreciate the opportunity to comment on the Department of Homeland
Security (“DHS”) information collection request (“ICR”) arising from the background checks to
be performed at high-risk chemical facilities under the Chemical Facility Anti-Terrorism
Standards’ (“CFATS”) personnel surety Risk-Based Performance Standard (“RBPS”).
The ISTC is a 501(c)3 non-profit training and educational organization located in
Southeast Texas. The ISTC and thirteen other safety councils comprise the SCSC. Together, the
ISTC and the SCSC operate an established, highly successful and comprehensive identification
verification and background screening program for contractors, and their employees, working at
over 100 chemical and refining facilities throughout Texas, the Gulf Coast, and also in New
Jersey, West Virginia and several other states.
Under Section 550 of the Homeland Security Appropriations Act of 2007, 1 Congress
gave DHS regulatory authority over security at high-risk chemical facilities. On April 9, 2007,
DHS promulgated the CFATS interim final regulations. 2 CFATS established 18 RBPSs for
chemical facility security, including the personnel surety RBPS. Under the personnel surety
RBPS, high-risk chemical facilities will obtain personally identifiable information (PII) from
facility personnel, and as appropriate, from unescorted visitors with access to restricted areas or
critical assets. 3 Using such PII, high-risk chemical facilities will perform appropriate
background checks including:
1

Pub. L. 109-295, Sec. 550.

2

6 CFR Part 27; 72 FR 17688.

3

See comments below.

1

(i)
(ii)
(iii)
(iv)

Measures designed to verify and validate identity;
Measures designed to check criminal history;
Measures designed to verify and validate legal authorization to work; and
Measures designed to identify people with terrorist ties. 4

With regards to the personnel surety RBPS requirement that the background check
measures include the identification of people with terrorist ties, DHS has requested comments on
the submission of PII by representatives of each high-risk chemical facility to DHS, via the
Chemical Security Assessment Tool (CSAT), to be screened against the consolidated and
integrated terrorist watch list maintained in the federal Terrorist Screening Database (TSDB).
The ISTC/SCSC respectfully submits the following comments on the information collection to
be conducted in compliance with the personnel surety RBPS.
II.

DISCUSSION
A. The ISTC supports the DHS interpretation of the population affected by the
personnel surety RBPS to include not only employees, but also contractors with
access, whether escorted or unescorted, to restricted areas of a high-risk
chemical facility.

The ISTC supports defining the affected population to cast a net broad enough to include
contractors and other temporary workers that are a major component of the workforce at
chemical and refining facilities.
Up to 80% of the workers in ISTC/SCSC member chemical or refining facilities, on any
given day, may be contractor employees and not direct hires of the facility. Chemical and
refining facilities customarily require large numbers of temporary workers for short periods of
time to handle concentrated, high labor activities quickly and efficiently. Labor surges
commonly arise from special construction and maintenance activities, such as turnarounds.
Thousands of highly-skilled temporary workers, such as pipe-fitters and welders, often need to
enter facilities quickly for time-sensitive repair projects. The economic impact of any definition
of the affected population that does not account for these types of workers could be devastating,
requiring owners and operators to shut down large facilities for weeks at a time.
B. The ISTC recommends that DHS permit private third party background screening
companies to act as the representatives of high-risk chemical facilities in
submitting PII to DHS under the personnel surety RBPS to further minimize the
burden of the collection of information.
Through a nationally recognized consumer reporting agency vendor (which is fully
regulated under the federal Fair Credit Reporting Act), the ISTC/SCSC operates an established,
highly successful, comprehensive and privacy-sensitive identification verification and
background screening program. The ISTC/SCSC process verifies and validates the identity of
employees. The ISTC/SCSC process checks criminal history records and does so in a robust and
4

Risk-based performance standards, Chemical Facility Anti-Terrorism Standards Final Rule, Sec. 27.230(a)(12)(iv).

2

comprehensive way. The ISTC/SCSC process has the ability to verify and validate contractor
employees’ legal authority to work. However, although the ISTC/SCSC process is already
designed to identify people with terrorist ties by checking names against the OFAC list, the
ISTC/SCSC would recommend that DHS explicitly allow for third party background screening
companies through a non-profit or other identification verification / background screening
program, such as the ISTC/SCSC process, to act as the representatives of high-risk chemical
facilities in submitting PII to DHS under the personnel surety RBPS to further minimize the
burden of the collection of information on the facilities.
CFATS provides high-risk chemical facilities with the discretion to choose and
implement security measures that satisfy the RBPSs, which could include products and services
provided by a private sector third-party. The CFATS RBPS Guidance Document recognizes that
at least one aspect of personnel surety, the background check, involves “acquiring information
on an individual through third-party services, government organizations, and private individuals
to make a ‘suitability determination’ regarding their ability to access sensitive areas.” 5 DHS
already explicitly permits third parties to verify and validate legal authorization to work through
the E-Verify system. 6 A significant number of chemical and refining facilities currently use
private sector third-parties to comply with the personnel surety RBPS. Chemical and refining
facilities should be permitted to continue using established personnel surety solutions, such as
the ISTC/SCSC program, to satisfy the personnel surety RBPS. As the ICR states, “The CFATS
Personnel Surety Program is not intended to halt, hinder, or replace high-risk chemical facilities’
performance of background checks currently required for employment or access to secure areas
of those facilities.” 7
Chemical facilities should be able to designate in their Site Security Plans an approved
private sector third-party to provide for the facility’s personnel surety security needs, such as for
submission of PII to DHS for a check to identify known and suspected terrorists. Many chemical
facilities are not prepared to handle “the potential sensitivity of the information uncovered”
during a background check, which “are subject to a unique set of laws and regulations to protect
employees and consumers in the event of misuse of data or fraud.” 8 A private sector third-party
that specializes in compliance with the Fair Credit Reporting Act and other applicable federal
and state laws would allow participating chemical facilities to preserve valuable administrative
resources.
In order for a third-party process to have any meaningful effect, private sector entities
require access to CSAT. In order to preserve the highly effective personnel surety processes
currently in place at chemical and refining facilities nationwide, the ISTC/SCSC recommends
that the personnel surety RBPS include explicit provisions that allow private sector third-parties
to submit names to DHS for processing against the TSDB. DHS already provides a process for
5

http://www.dhs.gov/xlibrary/assets/chemsec_cfats_riskbased_performance_standards.pdf (emphasis added).

6

http://www.uscis.gov/files/article/E4eng.pdf (A “Designated Agent” is a liaison between E-Verify and employers
wishing to participate, but who choose to outsource submission of employment eligibility verification queries for
newly hired employees. Designated Agents conduct the verification process for other employers or clients.)

7

74 FR 27555.

8

http://www.dhs.gov/xlibrary/assets/chemsec_cfats_riskbased_performance_standards.pdf.

3

TWIC vendors to submit names to the TSA to be checked against the TSDB. DHS should assure
that private sector third-parties under CFATS have the ability to conduct the same
comprehensive terrorist watch list check for applicants and employees of chemical facilities,
contractor employees, and visitors requiring unescorted access to chemical facilities.
III.

CONCLUSION

We appreciate your consideration of the comments by the ISTC and the SCSC as you
finalize the Draft Guidance.
Respectfully submitted,

Russell Melancon Jr., CAE
President & CEO
Industrial Safety Training Council
324 Hwy 69
Nederland, TX 77627

4

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0013_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 10, 2009
Status: Posted
Posted: August 10, 2009
Tracking No. 80a03df5
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0013
Comment Submitted by Jeffrey L. Dean, International Society of Explosives Engineers

Submitter Information
Name: Jeffrey L Dean
Address:
30325 Bainbridge Road
Cleveland, OH, 44139
Phone: 440-349-4400
Fax: 440-349-3788
Organization: International Society of Explosives Engineers

General Comment
RE: DHS -2009-0026
Information Collection Activity: Chemical Facility Anti-Terrorism Standards Personnel
Surety Program

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Attachments
DHS-2009-0026-0013.1: Comment Submitted by Jeffrey L. Dean, International
Society of Explosives Engineers (Attachment)

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file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0014_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 10, 2009
Status: Posted
Posted: August 10, 2009
Tracking No. 80a03e06
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0014
Comment Submitted by Judah Prero, American Chemistry Counsel

Submitter Information
Name: Judah Prero
Address:
1300 Wilson Blvd.
Arlington, VA, 22209
Email: judah_prero@americanchemistry.com
Phone: 703-741-5166
Fax: 703-741-6166
Organization: American Chemistry Counsel

General Comment
August 10, 2009
Matthew Bettridge
National Protection and Programs Directorate
Office of Infrastructure Protection
Infrastructure Security Compliance Division
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file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0014_CP.html

Department of Homeland Security
RE: Docket No. DHS-2009-0026—Submission for Chemical Facility Anti-Terrorism
Standards Personnel Surety Program Information Collection 1670-NEW
Dear Mr. Bettridge,
The American Chemistry Council (“ACC”) is pleased to provide the following comments
on the “Submission for Chemical Facility Anti-Terrorism Standards (“CFATS”) Personnel
Surety Program Information Collection (the “ICR”).” Many ACC members will have
facilities that are subject to these standards and we therefore have significant interest in
how this program is developed and implemented.
ACC represents 140 leading companies who manufacture approximately 85 percent of
basic industrial chemical production in the U.S. The business of chemistry is an important
part of our nation’s economy and employs more than 850,000 Americans, and produces
19 percent of the world’s chemicals. ACC member companies manufacture essential
products critical to everyday items that keep the economy moving and are essential to
developing the greener, cleaner, more competitive economy the nation seeks. More than
96% of all manufactured goods are directly touched by the business of chemistry. Our
members provide the chemistry that is used to produce life saving medications and
medical devices, body armor used by our military and law enforcement officers, light
weight components for vehicles, energy saving insulation and windows, silicon for solar
panels, wind turbine blades and so much more.
Ensuring that well qualified and trustworthy personnel are hired to work at chemical
facilities has long been a priority for ACC members. Members companies conduct
sophisticated and comprehensive background checks before employees and contractors
are allowed access to a facility. Periodic reassessments are also conducted as well. We
believe that the core elements of the CFATS program for personnel surety are consistent
with the stringent background checks already utilized by ACC members. We support a
robust and comprehensive approach to screening potential and current employees that
work at our facilities – even those that are not deemed “high risk” under the CFATS
program.
The ICR specifically highlights areas of interest to both the Office and Management and
Budget (“OMB”) and the Department of Homeland Security (“DHS”). Our comments,
addressing these specific areas, are as follows:
OMB Item 1: 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.
DHS Item 1: The Department’s interpretation of the population affected by RBPS 12
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background checks outlined in 6 CFR 27.230(a) (12)
Comment:
The definition of “Affected Population” expands the scope of the requirements beyond
those established in the regulation at 6 CFR § 27.230(a) (12).
Pursuant to 6 CFR § 27.230(a)(12), a covered facility must “[p]erform 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 . . . .”
Thus, individuals with escorted access to a restricted area or critical asset fall outside of
the scope of the affected population and are not subject to a background check for
CFATS compliance purposes.
However, the ICR implies an expansion of this definition by stating that “(1) facility
personnel (e.g., employees and contractors) with access (unescorted or otherwise) to
restricted areas or critical assets, and (2) unescorted visitors with access to restricted
areas or critical assets” would need the background checks.
As currently crafted, the statement “or otherwise” can be interpreted to mean that even
escorted personnel in restricted areas would need a background check, which is clearly
inconsistent with the regulatory language. In light of the absence of the regulatory
requirement to conduct background checks of these individuals, the collection of
information on these individuals is not necessary for the proper performance of the
functions of DHS.
To resolve this issue, ACC recommends that the phrase “or otherwise” be removed from
the final language.
OMB Item 2: The accuracy of the agency’s estimate of the burden of the proposed
collection of information, including the validity of the methodology and the assumptions
used.
Comment:
Appropriate resources need to be provided to ensure the efficiency of this Program.
In light of our experience with the Transportation Worker Identification Credential
program, we are concerned that DHS may be significantly underestimating the amount
of personnel that will need to be screened and thus the amount of resources required for
both the companies and the government. While the collection and submission of
necessary personnel information will pose a substantial cost of time and resources to
facilities, particularly as currently proposed, we are also concerned that DHS will not
have enough resources dedicated to processing the information, thereby keeping this a
timely and efficient program.

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We recommend that DHS review and apply some of the lessons learned from the TWIC
program development and implementation so that the CFATS personnel surety is
smoothly implemented.
OMB Item 3: The quality, utility and clarity of the information to be collected.
Comment:
Determination process and timing of vetting approval is unclear.
The personnel surety program as described doesn’t provide a clear process for approving
or disapproving personnel nor for the timing of the process for notification. Specifically,
the ICR doesn’t provide any indication on the amount of time that it will take for the
vetting process, which would be integral if a facility would be required to delay hiring
decisions – a requirement on which the ICR is silent. The complexities posed by
unknown aspects of the program are further complicated by the absence of any
requirement that there be clear communication between the DHS and the company
submitting the information. The utility of the information, therefore, is unclear at this
point.
To compound this, it appears from the ICR that in the event that an employee has been
successfully vetted, no credential will be provided (beyond what the employer’s already
use) as affirmative proof that vetting has resulted in a positive outcome. Similarly, if the
employee was not successfully vetted, the owner/operator will not receive notification to
that effect. A facility would not know either when, or even if, the employees have been
properly vetted. Again, as the ICR does not specifically speak to how the results of the
vetting process will be used by the facilities that employ the vetted individuals, the utility
of the information is not clear.
We suggest that DHS establish a straightforward process for notifying both the employee
and the owner/operator of the status for each vetted individual. The Transportation
Worker Identification Credential (TWIC card) program is a current example of how this
process could be implemented.
OMB Item 4: Minimize the burden of collection of information on those who are to
respond.
Comment:
A requirement that a DHS facility ID would serve as the means of identifying the
employees and thus tie the employee to a specific facility is problematic.
Companies do not necessarily hire employees to only work at a specific location. Further,
the screening/background checks that companies utilize evaluate all of their employees
at both facilities and corporate locations. It is quite common that employees spend time
at more than one site and thus are not corporately identified as being solely approved
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for a specified facility.
The situation with contract employees poses greater difficulty. These employees can
move from job to job on a daily basis and often switch to different employers.
Additionally, company employees from “non-regulated” facilities (or countries) would
need to be screened if they were to visit the regulated site and intend to be unescorted.
As a practical matter, many companies would prefer to develop groups of employee
submittals that would be provided to the DHS. These submittals would not be facility
based. A DHS requirement for facility-based identification would essentially undercut
existing practices by having the owner/operator submit based upon each site. This
leaves little flexibility if employees work at multiple sites. It increases the burden of
information submission on companies, as a single employee may need to be submitted
in connection with multiple facilities. Further, although it is unclear what benefit is
provided to DHS under the requirement to notify DHS when someone leaves company
employment, the burden this poses on facilities is clear.
Other comments
The adjudication process regarding the terrorist screening database is unclear.
In the interim final CFATS regulation, DHS stated that when a person was determined to
pose a potential security threat following a query against the Terrorist Screening
Database (“TSDB”), the affected person may seek adjudication of this negative
determination. This appropriately would allow the individual to seek a remedy, which
may be as simple as correction of address, date of birth, or other factual pieces of
information.
However, in the ICR, DHS states that they “…will not provide screening results to highrisk chemical facilities nor to the individuals whose [Personally Identifiably Information]
is submitted… [,]”. This approach undermines the practical application of DHS’s
personnel surety adjudication procedure. If DHS does not communicate adverse findings
to the affected individual, that individual has no ability to appeal.
We recommend that DHS be consistent with the described adjudication procedures as
defined in the final regulation. While we recognize that in some circumstances (such as
ongoing investigations) it might be inappropriate for DHS to immediately notify an
affected individual, in many other instances (mismatched PII), an individual should have
the opportunity to appeal a negative determination.
Acknowledgement of state and local privacy laws does not require affirmative
certification from Owner/Operators
We appreciate DHS recognizing the need for companies to comply with varied state and
local requirements related to privacy and personnel. DHS is taking the appropriate action
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by allowing the flexibility required so that companies can meet these obligations while
also meeting the DHS requirements to submit personnel for Federal background checks.
An affirmative compliance statement is not needed to address any concern DHS may
have regarding the applicability of state, local and tribal law. DHS needs only to state
that the Federal requirements in no way preempt existing state and local privacy and
personnel requirements. The requirement for affirmative certification on the part of the
company does not add to the ability of regulators to enforce against violators of
applicable laws; it merely adds a procedural requirement which is not needed for
violations to be addressed by regulatory agencies.
In conclusion, ACC continues to be supportive of the efforts undertaken by the
Department of Homeland Security in its continued implementation of the Chemical
Facility Anti-Terrorism Standards and appreciates the opportunity to provide comments
on the important subject of personnel surety.
Sincerely,

Judah Prero
Assistant General Counsel

Attachments
DHS-2009-0026-0014.1: Comment Submitted by Judah Prero, American Chemistry
Counsel (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0014_CP.html (6 of 6) [8/18/2009 10:08:24 AM]

August 10, 2009
Matthew Bettridge
National Protection and Programs Directorate
Office of Infrastructure Protection
Infrastructure Security Compliance Division
Department of Homeland Security

RE:
Docket No. DHS-2009-0026—Submission for Chemical Facility Anti-Terrorism Standards
Personnel Surety Program Information Collection 1670-NEW
Dear Mr. Bettridge,
The American Chemistry Council (“ACC”) is pleased to provide the following comments
on the “Submission for Chemical Facility Anti-Terrorism Standards (“CFATS”) Personnel Surety
Program Information Collection (the “ICR”).” Many ACC members will have facilities that are
subject to these standards and we therefore have significant interest in how this program is
developed and implemented.
ACC represents 140 leading companies who manufacture approximately 85 percent of
basic industrial chemical production in the U.S. The business of chemistry is an important part
of our nation’s economy and employs more than 850,000 Americans, and produces 19 percent
of the world’s chemicals. ACC member companies manufacture essential products critical to
everyday items that keep the economy moving and are essential to developing the greener,
cleaner, more competitive economy the nation seeks. More than 96% of all manufactured
goods are directly touched by the business of chemistry. Our members provide the chemistry
that is used to produce life saving medications and medical devices, body armor used by our
military and law enforcement officers, light weight components for vehicles, energy saving
insulation and windows, silicon for solar panels, wind turbine blades and so much more.
Ensuring that well qualified and trustworthy personnel are hired to work at chemical
facilities has long been a priority for ACC members. Members companies conduct sophisticated

and comprehensive background checks before employees and contractors are allowed access
to a facility. Periodic reassessments are also conducted as well. We believe that the core
elements of the CFATS program for personnel surety are consistent with the stringent
background checks already utilized by ACC members. We support a robust and comprehensive
approach to screening potential and current employees that work at our facilities – even those
that are not deemed “high risk” under the CFATS program.
The ICR specifically highlights areas of interest to both the Office and Management and
Budget (“OMB”) and the Department of Homeland Security (“DHS”). Our comments, addressing
these specific areas, are as follows:
OMB Item 1: 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.
DHS Item 1: The Department’s interpretation of the population affected by RBPS 12 background
checks outlined in 6 CFR 27.230(a) (12)

Comment:
The definition of “Affected Population” expands the scope of the requirements beyond those
established in the regulation at 6 CFR § 27.230(a) (12).
Pursuant to 6 CFR § 27.230(a)(12), a covered facility must “*p+erform 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 . . . .” Thus,
individuals with escorted access to a restricted area or critical asset fall outside of the scope of
the affected population and are not subject to a background check for CFATS compliance
purposes.
However, the ICR implies an expansion of this definition by stating that “(1) facility
personnel (e.g., employees and contractors) with access (unescorted or otherwise) to restricted
areas or critical assets, and (2) unescorted visitors with access to restricted areas or critical
assets” would need the background checks.
As currently crafted, the statement “or otherwise” can be interpreted to mean that
even escorted personnel in restricted areas would need a background check, which is clearly
inconsistent with the regulatory language. In light of the absence of the regulatory

requirement to conduct background checks of these individuals, the collection of information
on these individuals is not necessary for the proper performance of the functions of DHS.
To resolve this issue, ACC recommends that the phrase “or otherwise” be removed from
the final language.
OMB Item 2: The accuracy of the agency’s estimate of the burden of the proposed collection of
information, including the validity of the methodology and the assumptions used.
Comment:
Appropriate resources need to be provided to ensure the efficiency of this Program.
In light of our experience with the Transportation Worker Identification Credential
program, we are concerned that DHS may be significantly underestimating the amount of
personnel that will need to be screened and thus the amount of resources required for both the
companies and the government. While the collection and submission of necessary personnel
information will pose a substantial cost of time and resources to facilities, particularly as
currently proposed, we are also concerned that DHS will not have enough resources dedicated
to processing the information, thereby keeping this a timely and efficient program.
We recommend that DHS review and apply some of the lessons learned from the TWIC
program development and implementation so that the CFATS personnel surety is smoothly
implemented.
OMB Item 3: The quality, utility and clarity of the information to be collected.
Comment:
Determination process and timing of vetting approval is unclear.
The personnel surety program as described doesn’t provide a clear process for
approving or disapproving personnel nor for the timing of the process for notification.
Specifically, the ICR doesn’t provide any indication on the amount of time that it will take for
the vetting process, which would be integral if a facility would be required to delay hiring
decisions – a requirement on which the ICR is silent. The complexities posed by unknown
aspects of the program are further complicated by the absence of any requirement that there
be clear communication between the DHS and the company submitting the information. The
utility of the information, therefore, is unclear at this point.

To compound this, it appears from the ICR that in the event that an employee has been
successfully vetted, no credential will be provided (beyond what the employer’s already use) as
affirmative proof that vetting has resulted in a positive outcome. Similarly, if the employee was
not successfully vetted, the owner/operator will not receive notification to that effect. A facility
would not know either when, or even if, the employees have been properly vetted. Again, as
the ICR does not specifically speak to how the results of the vetting process will be used by the
facilities that employ the vetted individuals, the utility of the information is not clear.
We suggest that DHS establish a straightforward process for notifying both the
employee and the owner/operator of the status for each vetted individual. The Transportation
Worker Identification Credential (TWIC card) program is a current example of how this process
could be implemented.
OMB Item 4: Minimize the burden of collection of information on those who are to respond.
Comment:
A requirement that a DHS facility ID would serve as the means of identifying the employees
and thus tie the employee to a specific facility is problematic.
Companies do not necessarily hire employees to only work at a specific location.
Further, the screening/background checks that companies utilize evaluate all of their
employees at both facilities and corporate locations. It is quite common that employees spend
time at more than one site and thus are not corporately identified as being solely approved for
a specified facility.
The situation with contract employees poses greater difficulty. These employees can
move from job to job on a daily basis and often switch to different employers. Additionally,
company employees from “non-regulated” facilities (or countries) would need to be screened if
they were to visit the regulated site and intend to be unescorted.
As a practical matter, many companies would prefer to develop groups of employee
submittals that would be provided to the DHS. These submittals would not be facility based. A
DHS requirement for facility-based identification would essentially undercut existing practices
by having the owner/operator submit based upon each site. This leaves little flexibility if
employees work at multiple sites. It increases the burden of information submission on
companies, as a single employee may need to be submitted in connection with multiple
facilities. Further, although it is unclear what benefit is provided to DHS under the requirement

to notify DHS when someone leaves company employment, the burden this poses on facilities is
clear.
Other comments
The adjudication process regarding the terrorist screening database is unclear.
In the interim final CFATS regulation, DHS stated that when a person was determined to
pose a potential security threat following a query against the Terrorist Screening Database
(“TSDB”), the affected person may seek adjudication of this negative determination. This
appropriately would allow the individual to seek a remedy, which may be as simple as
correction of address, date of birth, or other factual pieces of information.
However, in the ICR, DHS states that they “…will not provide screening results to highrisk chemical facilities nor to the individuals whose [Personally Identifiably Information] is
submitted… *,+”. This approach undermines the practical application of DHS’s personnel surety
adjudication procedure. If DHS does not communicate adverse findings to the affected
individual, that individual has no ability to appeal.
We recommend that DHS be consistent with the described adjudication procedures as
defined in the final regulation. While we recognize that in some circumstances (such as ongoing
investigations) it might be inappropriate for DHS to immediately notify an affected individual, in
many other instances (mismatched PII), an individual should have the opportunity to appeal a
negative determination.
Acknowledgement of state and local privacy laws does not require affirmative certification
from Owner/Operators
We appreciate DHS recognizing the need for companies to comply with varied state and
local requirements related to privacy and personnel. DHS is taking the appropriate action by
allowing the flexibility required so that companies can meet these obligations while also
meeting the DHS requirements to submit personnel for Federal background checks.
An affirmative compliance statement is not needed to address any concern DHS may
have regarding the applicability of state, local and tribal law. DHS needs only to state that the
Federal requirements in no way preempt existing state and local privacy and personnel
requirements. The requirement for affirmative certification on the part of the company does
not add to the ability of regulators to enforce against violators of applicable laws; it merely

adds a procedural requirement which is not needed for violations to be addressed by regulatory
agencies.
In conclusion, ACC continues to be supportive of the efforts undertaken by the
Department of Homeland Security in its continued implementation of the Chemical Facility
Anti-Terrorism Standards and appreciates the opportunity to provide comments on the
important subject of personnel surety.
Sincerely,

Judah Prero
Assistant General Counsel

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0015_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 10, 2009
Status: Posted
Posted: August 10, 2009
Tracking No. 80a03e0a
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0015
Comment Submitted by Peter Weaver, International Liquid Terminals Association

Submitter Information
Name: Peter Weaver
Address:
1444 I Street, NW
Suite 400
Washington, DC, 20005
Email: rpweaver@ilta.org
Phone: 202-842-9200
Fax: 202-326-8660
Organization: International Liquid Terminals Association

General Comment
The International Liquid Terminals Association (“ILTA”) is pleased to submit the attached
comments on the Department of Homeland Security proposal relating to an information
collection request to be submitted to the Office of Management and Budget: Submission
for Chemical Facility Anti-Terrorism Standards Personnel Surety Program Information
Collection, Docket No. DHS-2009-0026
file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0015_CP.html (1 of 2) [8/18/2009 10:08:23 AM]

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0015_CP.html

Attachments
DHS-2009-0026-0015.1: Comment Submitted by Peter Weaver, International Liquid
Terminals Association (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0015_CP.html (2 of 2) [8/18/2009 10:08:23 AM]

August 10, 2009 
Infrastructure Security Compliance Division  
Office of Infrastructure Protection 
National Protection and Programs Directorate 
Department of Homeland Security 

Re: Submission for Chemical Facility Anti-Terrorism Standards Personnel
Surety Program Information Collection, Docket No. DHS-2009-0026

Dear Sir or Madam: 
The International Liquid Terminals Association (“ILTA”) is pleased to submit the following comments 
on  the  above‐referenced  Department  of  Homeland  Security  proposal  relating  to  an  information 
collection request to be submitted to the Office of Management and Budget. 
ILTA is an international trade association that represents eighty‐five commercial operators of bulk 
liquid terminals, aboveground storage tank facilities, and pipeline companies located in the United 
States  and  42  other  countries.    In  addition,  ILTA  includes  in  its  membership  more  than  three 
hundred companies that supply products and services to the bulk liquid storage industry. 
ILTA  member  facilities  include  deepwater,  barge,  and  pipeline  terminals  whose  bulk  liquid 
commodities  are  essential  to  the  national  and  international  economies.    These  terminals 
interconnect  with  and  provide  services  to  the  various  modes  of  bulk  liquid  carriers,  including 
oceangoing tankers, barges, tank trucks, rail cars, and pipelines.  The commodities handled include 
chemicals, crude oil, petroleum products, renewable fuels, asphalt, animal fats and oils, vegetable 
oils,  molasses,  and  fertilizers.    Customers  who  store  products  at  these  terminals  include  oil 
producers, chemical manufacturers, product manufacturers, food growers and producers, utilities, 
transportation companies, commodity brokers, government agencies, and the military. 
ILTA and its terminal member companies recognize the importance of providing effective personnel 
surety at our nation’s high‐risk chemical facilities to ensure that individuals with unescorted access 
to restricted areas or critical assets have suitable backgrounds checks.  ILTA further recognizes the 
importance  of  implementing  a  Personnel  Surety  Program  (PSP)  that  can  effectively  compare 
appropriate  Personally  Identifiable  Information  (PII)  against  the  PII  of  known  and  suspected 
terrorists maintained in the Terrorist Screening Database (TSDB).  However, ILTA believes that the 
Department’s interpretation of the “population affected by RBPS 12 background checks” should be 
modified as described below. 
In the Department’s notice and request for comments published in the Federal Register on June 10, 
2009,  interested  parties  are  invited  to  provide  comments  that  respond  to  “the  Department’s 
interpretation  of  the  population  affected  by  RBPS  #12  background  checks  outlined  in  6  CFR 
27.230(a)(12),”  and  “its  intention  to  seek  an  exemption  to  the  notice  requirement  under  5  CFR 
1320.8(b)(3).”  Accordingly, ILTA is providing the following comments: 

CFATS PSP Docket No. DHS-2009-0026
Comments of the International Liquid Terminals Association
August 10, 2009
1. Repetitive Submittals of an Individual’s PII Should Not Be Required
Under the Department’s interpretation, an employee of a company with multiple, high‐risk facilities will 
be labeled as a “new individual” the first time he or she enters one of the facilities.  On each of these 
occasions,  the  facility  will  be  required  to  submit  the  individual’s  PII.    This  multiple  submission  process 
will also apply to contractors each time they enter a facility for the first time.  ILTA believes that once a 
TSA  background  check  is  completed  for  an  individual  through  the  TSDB,  that  individual  should  be 
recognized  as  “cleared”  for  the  purpose  of  access  to  restricted  areas  or  critical  assets  of  any  high‐risk 
chemical  facility.    ILTA  further  recommends  that  “cleared”  individuals  possess  a  record,  or  credential, 
indicating  this  status.    ILTA  does  not  support  the  requirement  for  repetitive  submittals  for  individuals 
who  have  access  to  multiple  facilities.    Nor  does  ILTA  support  the  requirement  that  resubmittals  be 
required  for  each  occasion  that  an  individual’s  PII  changes.    Multiple  submittals  would  result  in 
repetitive checks increasing the potential for error, inconsistent results, and complications in the event 
of an errant threat finding requiring adjudication.   
As  new  terrorist  information  is  obtained  in  the  TSDB,  ILTA  recommends  that  chemical  facilities  be 
notified of changes to the TSDB watch list so that they may take appropriate action.  It is unnecessary to 
require facilities to redundantly submit an individual’s PII for this purpose.  Facilities are already, today, 
implementing technology capable of polling terror watch lists for rapid updates to the individual’s access 
status.  With the technology now available, for instance within the Transportation Worker Identification 
Credential (TWIC) Program, there is no need for facilities to continually update personnel PII.  
Furthermore,  it  is  overly  burdensome  to  require  duplicative  submission  of  information  for  individuals 
who  are  granted  access  to  multiple  facilities.    In  addition  to  chemical  facility  personnel,  corporate 
executives,  contractors  and  truck  drivers  often  require  access  to  several  facilities.    Mandating  the 
submission  of  redundant  data  is  certain  to  generate  unnecessary  errors  and inconsistencies.    Once  an 
individual has been cleared, no security purpose is served by repeating the exercise.   
ILTA strongly recommends that successful completion of the terrorist background check for an individual 
be  confirmed  in  a  fashion  that  would  preclude  any  requirement  for  duplicative  data  submission  or 
screening and should be conducted only once in a given period, e.g. 3‐5 years. 

2. Vetting Personnel Against the TSDB Should Not Be Associated with Particular
Facilities
There  is  no  requirement  within  current  CFATS  legislation  (or  within  proposed  CFATS  reauthorization 
language) to associate an individual’s clearance of a terrorist background check with a particular facility.  
Any  mandate  that  would  require  high‐risk  chemical  facilities  to  maintain  current  PII  records  for  each 
individual with restricted access creates a substantial administrative burden for terminal companies.  If 
it is DHS’s intent to manage lists of personnel with access to every high‐risk chemical facility, then the 

2

CFATS PSP Docket No. DHS-2009-0026
Comments of the International Liquid Terminals Association
August 10, 2009
Agency  should  explicitly  state  this  intent.    Furthermore,  such  tracking  of  individuals  should  be  wholly 
independent of background checks. 

3. A Personnel Surety Process Should be Managed as a Single Process for All Four
Background Check Elements Required by 6 CFR § 27.230(a)(12)
CFATS  requires  four  background  checks  for  select  individuals.  These  include  measures  to  verify  and 
validate  identity,  check  criminal  history,  verify  and  validate  legal  authorization  to  work,  and  check  for 
terrorist ties.  The PSP, as outlined in the information collection request, only addresses the check for 
terrorist ties.  It is unclear whether DHS will develop additional personnel surety programs for the other 
background  checks.  ILTA  believes  that  all  background  checks  should  be  available  through  a  singular, 
consistent process. 

4. Results of Security Background Checks Should be Confirmed through the Issuance
of a Credential Made Available to the Individual
DHS  states  that  “[it]  will  not  provide  screening  results  to  high‐risk  chemical  facilities  nor  to  the 
individuals  whose  PII  is  submitted  by  high‐risk  facilities.”    Accordingly,  an  individual’s  opportunity  to 
seek adjudication pursuant to 6 CFR 27.310 has been marginalized – or made functionally meaningless.   
DHS’s  current  approach  conflicts  with  the  preamble  to  the  CFATS  Interim  Final  Rule.    The  preamble 
states  that  “DHS  will  screen  applicants  and  determine  whether  the  applicant  poses  a  security  threat.  
Where appropriate, DHS will notify the facility and applicant via U.S. mail, with information concerning 
the  nature  of  the  finding  and  how  the  applicant  may  contest  the  finding.    Applicants  will  have  the 
opportunity to seek an adjudication proceeding and appeal under Subpart C.” (72 Fed. Reg. 17,709) 

5. An Exemption to the Paperwork Reduction Act is Unwarranted
DHS  intends  to  seek  an  exemption  to  the  Paperwork  Reduction  Act  (PRA)  pursuant  to  5  CFR 
1320.8(b)(3).  If granted, this would allow the Department to refrain from notifying affected individuals 
regarding the reasons for the collection, how the information will be used, or whether responses to the 
collection are voluntary or mandatory, among other things.  Aside from stating that “[n]either Section 
550  of  the  Act  nor  CFATS  creates  a  requirement  for  high‐risk  chemical  facilities  to  provide  notice  to 
affected  individuals  whose  PII  is  submitted  to  the  CFATS  Personnel  Surety  Program,”  DHS  offers  no 
substantive  justification  for  the  exemption.    ILTA  believes  that  a  PRA  exemption  that  would  allow  the 
use of information about an individual without his or her knowledge and consent constitutes a violation 
of  that  individual’s  right  of  privacy.    Furthermore,  an  exemption  to  the  Department’s  obligation  to 
declare whether information collected is voluntary or mandatory under the PRA is unwarranted.   

3

CFATS PSP Docket No. DHS-2009-0026
Comments of the International Liquid Terminals Association
August 10, 2009
DHS  has  not  specified  the  PII  that  must  be  submitted  (e.g.,  name  and  date  of  birth),  although  it  has 
indicated that information such as a “physical description” may be requested.  This lack of definition in a 
PII  submittal  requirement  precludes  complete  analysis  of  the  benefits  and  burdens  that  a  PRA 
exemption would create.  

Comments Regarding Questions of Particular Interest to the Office of Management and
Budget:
1. Evaluate whether the proposed collection of information is necessary for proper
performance of the functions of the agency, including whether the information will
have practical utility.
It would be appropriate for TSA – and not ISCD – to directly gather any and all PII for TSDB screening 
purposes. TSA should be able to provide an automatic receipt serving as the “verification of submission.”  
TSA should further notify the applicant of any negative findings to allow for possible adjudication. 

2. Evaluate the accuracy of the agency’s estimate of the burden of the proposed
collection of information, including the validity of the methodology and assumptions
used.
ILTA believes that a 35‐minute proposed burden for the collection and reporting of PII is based on an 
incomplete estimate of the actual burden of the program, as outlined.  The proposed burden should be 
multiplied by the number of facilities to which a given individual requires access.  This factor, in many 
cases,  could  be  large.    Furthermore,  the  burden  fails  to  include  the  ongoing  time  requirement  to 
maintain  current  PII  for  select  personnel  with  access  to  a  given  facility,  including  management, 
contractors, and truck drivers.  These added burdens could be substantial.   
In  this  context,  the  purpose  served  by  ISCD’s  intermediary  role  between  the  applicant  and  TSA  is 
unclear.  Such a role by ISCD may unnecessarily add to the overall time burden for collection. 

3. How can DHS enhance the quality, utility and clarity of this exercise?
The information collection request fails to address two additional questions: the requisite timeframe for 
submitting PII relative to the facility’s ability to grant access, and whether interim provisional approval 
will  be  granted  for  regular  employees  during  program  implementation  (such  as  under  the  TWIC 
program).  

4

CFATS PSP Docket No. DHS-2009-0026
Comments of the International Liquid Terminals Association
August 10, 2009
4. How may the collection burden be minimized?
The information collection request states that a “verification of submission” will be sent by DHS every 
time that an individual’s information is updated or once that individual no longer requires access to the 
facility.  The ongoing maintenance of individual submissions is burdensome and entirely unnecessary – 
both  for  the  facility  that  must  notify  ISCD  of  the  individual’s  changing  status  and  for  ISCD  who  must 
confirm receipt of such extraneous information.  

ILTA Recommendation
ILTA  strongly  recommends  that  DHS  adopt  the  TSA’s  TWIC  program,  or  implement  a  corresponding 
program  with  recognition  reciprocity  for  TWIC,  Hazardous  Materials  Endorsement,  Department  of 
Alcohol, Tobacco and Firearms security clearance, or similar, government sanctioned programs, rather 
than developing a new and unique program as proposed.  Such an approach would allow the CFATS PSP 
to  ensure  that  background  checks  on  an  individual  are  completed,  are  not  repetitive,  and  address  all 
four elements as required in 6 CFR 27.230(a)(12). 
As outlined in the information collection request, the PSP is not necessary given the alternatives already 
at hand.  Implementation would result in an incomplete process that is administratively cumbersome – 
if  not  wholly  unworkable.    The  program  would  require  a  significant,  unnecessary,  and  inappropriate 
allocation  of  limited  resources.    And  it  would  produce  a  national  chemical  facility  personnel  database 
filled  with  multiple  errors,  omissions,  and  redundancies.    ILTA  is  concerned  that  such  a  process  will 
ultimately fail to achieve the objectives of the DHS CFATS program.   
Thank you for your consideration of these comments. 
Sincerely, 

R. Peter Weaver 
Director of Regulatory Compliance and Safety 

5

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0016_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 10, 2009
Status: Posted
Posted: August 10, 2009
Tracking No. 80a04ebd
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0016
Comment Submitted by Jeff Gunnulfsen, National Petrochemical and Refinery Association

Submitter Information
Name: Jeff Gunnulfsen
Address:
NPRA
Suite 700, 1667 K St., NW
Washington, DC, 20006
Email: jgunnulfsen@npra.gov
Phone: 202-552-4371
Organization: National Petrochemical and Refinery Association
Government Agency Type: Federal
Government Agency: DHS

General Comment
Please find attached NPRA's comments on the June 10, 2009 FR notice regarding
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW (74 FR 27555). If you have any questions or need
further information please contact me at 202-552-4371 or at jgunnulfsen@npra.org.
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file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0016_CP.html

NPRA looks forward to working with DHS on these important issues.
Sincerely
Jeff Gunnulfsen
Director
Security and Risk Management
NPRA

Attachments
DHS-2009-0026-0016.1: Comment Submitted by Jeff Gunnulfsen, National
Petrochemical and Refinery Association (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0016_CP.html (2 of 2) [8/18/2009 10:08:28 AM]

National Petrochemical & Refiners Association

1667 K Street, NW
Suite 700
Washington, DC
20006

202.457.0480 voice
202.457.0486 fax

August 10, 2009
National Protection and Programs Directorate
Office of Infrastructure Protection
Infrastructure Security Compliance Division
Department of Homeland Security

RE: NPRA Comments on Docket No. DHS-2009-0026—Submission for Chemical
Facility Anti-Terrorism Standards Personnel Surety Program Information Collection
1670
________________________________________________________________________
NPRA, the National Petrochemical & Refiners Association, appreciates the
opportunity to provide comments on the “Submission of Chemical Facility Anti-Terrorism
Standards Personnel Surety Program Information Collection” Notice (74 FR 27555, June 10,
2009).
The Chemical Facility Anti-Terrorism Standards (CFATS) require high-risk chemical
facilities to submit personally identifiable information (PII) from facility personnel and,
when appropriate, unescorted visitors with access to restricted areas or critical assets to DHS
for the express purpose of screening individuals against the Terrorist Screening Database
(TSDB). In addition, high-risk chemical facilities also must perform background checks in
compliance with the CFATS Personnel Surety risk-based performance standard (RBPS) #12.
NPRA has reviewed the notice and is generally supportive of the practice of DHS
screening unescorted personnel who have been granted access to restricted areas or critical
assets defined in the facility’s CFATS site security plan (SSP) for links to the TSDB.
However, NPRA is highly concerned that detailed information presented by the
Infrastructure Security Compliance Division seems to be significantly more expansive and
cumbersome than what is proposed in the publicly available docket and Federal Register
notice. Proposed details provided in the PowerPoint presentation by ISCD showcase a
detailed, burdensome, and unworkable program that exceeds the scope of this FR notice.
DHS’s stated goal of this notice is to establish a program to conduct a terrorist
background check against the Terrorist Screening Data Base for persons accessing regulated
facilities. NPRA questions the need of the broad scope of the information requested and the
value of updating the home addresses, telephone numbers, physical descriptions and other
information of employees, visitors, contractors, truck drivers, and vendors. NPRA is also

concerned that the volume of submissions could easily number in the tens of thousands a
month without providing any added security benefit to DHS.
OMB and DHS have requested specific input on several points mentioned in the
notice. These comments reflect NPRA’s views.
I.

OMB Questions

1. 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;
This process involves sharing personally identifiable information to numerous
agencies with no documented “need to know”.
The notice provides examples of redundancy with TSA’s existing TWIC program
(TSA will actually be tasked with conducting the terrorist check for this Personnel Surety
Program as well). The Personnel Surety Program (PSP) contends that TWIC can be used for
the separate background check requirement under RBPS #12, but still requires the
submission of the information of those persons with a valid TWIC in order to fulfill the site’s
terrorist check obligations. This submission is required despite the fact that this information
already resides with TSA for the TWIC program. NPRA urges OMB and DHS to exempt
personnel who hold a TWIC card from this reporting requirement. This would help to reduce
the burden and duplication of information.
There are no clear definitions of “restricted areas” or “critical assets” in the CFATS
rule or this notice. Additionally, DHS’s own definition of an “asset” differs depending upon
whether considered in an SVA or SSP within the context of the CFATS program, and is
limited to guidance documents.
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed
collection of information, including the validity of the methodology and
assumptions used;
The notice does not specify the role of the “representative of each high risk chemical
facility” with access to CSAT. Is this a new role assignment yet to be created in the CSAT
tool environment? Or is the Submitter, Preparer or Authorizer expected to enter this
information? In DHS’s PowerPoint presentation, it suggests batch downloads and third party
data entry. This raises serious security, CVI, and privacy concerns for this PII data and
existing data already in the system for CFATS compliance.

3. Enhance the quality, utility, and clarity of the information to be collected;
There is no timeframe specified for the initial collection period. The TWIC interim
rule permitted facilities only 30 days to gather and submit the information under the interim
TWIC provisions. Because contractor, vendor, and visitor information is often limited or not
maintained for these audiences’ at large sites, this is especially burdensome. NPRA
recommends OMB and DHS provide a reasonable timeframe for initial submission given the
limitation of information companies have available for non-employees. In addition, DHS
should consider turnaround and batch process applications and challenges in the on-going
burden for compliance.
4. Minimize the burden of the collection of information on those who are to respond,
including through the use of appropriate automated, electronic, mechanical, or other
technological collection techniques or other forms of information technology, e.g.,
permitting electronic submissions of responses.
On page 27556, first paragraph the notice states:
“A new individual's PII has been submitted, (2) an individual's information has been updated,
and (3) when an individual's information has been removed because he/she no longer has
access to the high-risk chemical facility's restricted areas or critical assets.”
The stated goal of the PSP Notice is to screen persons against the government’s
terrorist database. Updating information previously submitted and removing those personnel
who no longer have access to a site would provide no value in the context of terrorism
screening. To screen personnel, DHS requires the information upon granting access. It is
NPRA’s strong belief that once the person’s information has been submitted, the company
has met its obligation under the screening requirement.
Contractors frequently work at more than one contract job on site, or number of sites,
concurrently. It is unrealistic for facilities to track and manage personnel records of those
who no longer have access to a facility. Requiring this practice may result in dozens of
additions and subtractions from multiple sites for the same person and would provide no
additional value for terrorism screening purposes. Further it would impose an undue burden
on facility operators and require DHS to waste limited resources by performing numerous
duplicative and unnecessary screenings.
NPRA respectfully requests DHS to clarify the process facilities will use to correct or
otherwise update submitted information. Also, we ask that DHS be as specific as possible for
what type of physical characteristics it is requesting for the physical description of personnel.
Most company human resource departments will not have physical descriptions of their
employees on file and this collection could add months of work to the expected collection of
information. Specificity in the DHS data gathering proposal will help companies effectively

plan how they might begin to gather the information and reduce the burden on companies by
limiting possible discriminatory claims.

II.

DHS Questions

1. Respond to the Department's interpretation of the population affected by RBPS 12
background checks outlined in 6 CFR 27.230(a) (12);
Please see our comments under “Affected Persons” in Section III of this document.
2. Respond to fact 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;
NPRA emphasizes that the submitter of PII for a regulated high risk facility should be
notified of known terrorists in a timely manner by DHS. A company not provided this
information may unknowingly subject personnel and the surrounding community to
unnecessary risk by granting access to an individual known by DHS to have terrorist ties.
NPRA recommends that DHS permit each company to designate appropriate contacts that
DHS may provide local law enforcement and the FBI when an individual at their regulated
facility is identified to have terrorist ties.
3. Respond to the Department on its intention to seek an exception to the notice
requirement under 5 CFR 1320.8(b) (3).
NPRA is highly concerned that DHS is requesting an exemption from publishing a
notice in the FR on how the department will reply to NPRA’s and others’ concerns. The
options being presented by DHS, separate from this notice published in the FR, are
unworkable and exceed the scope of terrorism checks. At the very least, a notice is needed
on this for multiple reasons---compliance assistance for both sites and inspectors, the need to
reach a broader audience, and the need to clarify the site/contractor information needs.
III.

Affected Persons

The notice is unclear on the expected audience for applicability. The notice
specifically states in the first column of page 27556, “These background checks do not affect
facility personnel that do not have access to facilities' restricted areas or critical assets, nor do
they affect escorted visitors.”
However, in the three other mentions of the scope of affected personnel in this threepage notice, the scope of affected personnel is not limited to the facility personnel in those in
“restricted” or “critical asset” areas, and leaving the door wide open for DHS to require the
application of this measure to everyone on site.

NPRA is extremely concerned that DHS is requesting an exemption from publishing
a notice in the FR on how the Department will reply to NPRA’s and others concerns. The
options being presented by DHS, separate from this notice published in the FR are
unworkable and exceed the scope of terrorism checks. NPRA urges OMB and DHS to
coordinate the public notice to include details of the planned measures. In addition, DHS
should re-evaluate the planned measures to meet the scope of the project and work closely
with industry to develop an appropriate path forward.
NPRA welcomes the opportunity to work with DHS on these issues. Please contact
me with any questions at 202-552-4371 or at jgunnulfsen@npra.org.

Sincerely,

Jeff Gunnulfsen
Director
Security and Risk Management
NPRA

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0017_CP.html

PUBLIC SUBMISSION

As of: August 17, 2009
Received: August 10, 2009
Status: Posted
Posted: August 11, 2009
Tracking No. 80a03e3b
Comments Due: August 10, 2009
Submission Type: Web

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0017
Comment Submitted by Robin Rorick, American Petroleum Institute

Submitter Information
Name: Robin Rorick
Address:
1220 L Street, NW
Washington, DC, 20005-4070
Email: rorickr@api.org
Phone: 202-682-8083
Fax: 202-682-8207
Organization: American Petroleum Institute

General Comment
August 10, 2009
Department of Homeland Security
National Protection and Programs Directorate
Office of Infrastructure Protection

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Re: Docket No. DHS-2009-0026
The American Petroleum Institute (API) is pleased to offer the following comments in
response to the U. S. Department of Homeland Security (DHS) proposed collection of
information request. API represents over 400 member companies involved in all aspects
of the oil and natural gas industry and, as such, could be adversely impacted by this
Agency action.
General Comments
API and its member companies believe it is important to provide effective personnel
surety at high-risk chemical facilities to ensure that individuals with unescorted access to
restricted areas or critical assets have suitable backgrounds checks. API and its members
support a Personnel Surety Program (PSP) that can efficiently and effectively check
appropriate Personally Identifiable Information (PII) against the Terrorist Screening
Database (TSDB). However, API and its members are concerned about several aspects
of how the PSP program will be administered in accordance with 6 CFR 27.230(a)(12)(iv)
of the Chemical Facility Anti-Terrorism Standards (CFATS), as described in the June 10,
2009 information collection request.
In general, API is concerned that DHS has not provided enough detail about the program
to make a reasonable estimate of either the positive or negative impact it may have. As
an example, there is no information provided as to the specifics that is to be collected or
otherwise known as Personally Identifiable Information (PII). If a physical description of
the individual is required to be given, a host of concerns would arise in regards to the
qualifications of those individuals required to make that assessment. Additionally,
companies would be very concerned from a profiling standpoint and there would be
great sensitivities from both the submitter and the submitted. The extent of PII required
is also concerning from the perspective of needless and duplicative reporting burden.
Typically, minimal information is useful in making an initial determination as to whether
an individual is of concern, and then subsequently more information about that person
can be gathered during a more involved investigation. Ultimately, API and its members
have great concerns about the total impacted population from this program, and believe
strongly that DHS must conduct and show the results of its analysis to this effect to
ensure the program is as efficient as possible and not duplicative in any way.
DHS also does not explain how often PII will need to be updated by a facility.
Maintenance of PII required by a facility could be extremely cumbersome. Many facilities
have authorized contractors who have access to multiple facilities but are not employees
of the facility. Under the Transportation Worker Identification Credential (TWIC)
program, these types of workers are effectively addressed since the PII vetting process
is tied to the individual and NOT the facility. Under this program, each individual will be
required to keep his/her PII up to date and submitted to DHS for each facility that s/he
has unrestricted access to. It is unclear how this information will be reviewed, checked
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for quality, coordinated with other facilities, or how often it will need to be updated.
Personnel vetting should be tied to the individual and not to a facility.
Personnel vetting should be tied to the individual and not to a facility. By requiring each
high-risk facility to report PII on all personnel who have unescorted access to restricted
areas, including company employees and contractors, it will create duplicative reporting
for each facility that an individual has access to. This is unnecessary and inefficient and
will likely result in multiple records for the same individual. Additionally, it will vastly
increase the potential for error, inconsistent results, and potentially significant
complications in the event of an errant threat finding requiring adjudication by the
agency. Once a TSA background check is completed for an individual through the TSDB
that individual should be recognized as cleared and not a terrorist threat.
Where an individual may be granted access to multiple facilities, it is highly unnecessary
to require submission of duplicative information by each facility. In addition to chemical
facility personnel, corporate executives, contractors and truck drivers often require
access to several facilities. Mandating the submission of redundant data is certain to
generate unnecessary errors and inconsistencies. Once an individual has been cleared,
there is no security purpose served by repeating the exercise.
API recommends that successful completion of a terrorist background check for an
individual be confirmed in a fashion that would preclude any requirement for duplicative
reporting and should be performed only once in a given period.
Further, the administrative burden of maintaining up-to-date PII on all individuals with
unescorted access to restricted areas at each high-risk chemical facility indefinitely would
create a substantial, duplicative and unnecessary burden on the industry since many of
these individuals require access to multiple facilities.
Results from Background Checks Should be Made Available to the Individual.
DHS states that “[it] will not provide screening results to high-risk chemical facilities nor
to the individuals whose PII is submitted by high-risk facilities.” DHS’s current approach
conflicts with the preamble to the CFATS Interim Final Rule, which states that “DHS will
screen applicants and determine whether the applicant poses a security threat. DHS will
notify the facility and applicant via U.S. mail, with information concerning the nature of
the finding and how the applicant may contest the finding. Applicants will have the
opportunity to seek an adjudication proceeding and appeal under Subpart C.” (72 Fed.
Reg. 17,709). API and its members are concerned that individual rights could be violated
and individuals will have no means for repudiation.
DHS intends to seek an exemption to the Paperwork Reduction Act pursuant to 5 CFR
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1320.8(b)(3). If granted, this would allow the Department to refrain from notifying
affected individuals regarding the reasons for the collection, how the information will be
used, or whether responses to the collection are voluntary or mandatory, among other
things. API believes such an exemption is unwarranted and may violate the privacy
rights of the affected individual.
Recommendation
In conclusion, API and its members believe that the proposed Personnel Surety Program
will place an undue burden—in regards to time, money and other resources—on industry
by creating a duplicative program. Instead, it is our recommendation that DHS adopt the
TSA’s TWIC program rather than developing a new and unique program as proposed.
API and its members do not believe that a separate PSP program to be administered by
the Chemical Compliance Division needs to be established for the proper performance of
the Agency. DHS already has the TWIC program in place that effectively provides the
appropriate personnel security assurances. TWIC is jointly administered by the US Coast
Guard and TSA and is required at all MTSA facilities for individuals that have unescorted
access to restricted areas.
API and its members believe that the proposed PSP is not necessary given the
alternatives already at hand. It would result in an incomplete process that is
administratively cumbersome and it would fail to achieve the objectives of the DHS
CFATS program without a significant, unnecessary, and inappropriate misallocation of
limited resources. As proposed, the PSP could result in a national chemical facility
personnel database filled with multiple errors, omissions, and redundancies.
Thank you for this opportunity to comment on this important program. If you have any
questions, please feel free to contact me at your convenience.
Sincerely,

Robin Rorick

Attachments
DHS-2009-0026-0017.1: Comment Submitted by Robin Rorick, American Petroleum
Institute (Attachment)
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Robin Rorick

Director, Marine and Security
1220 L Street, NW
Washington, DC 20005-4070
USA
Telephone
202-682-8083
Fax
202-682-8051
Email
rorickr@api.org
www.api.org

August 10, 2009
Department of Homeland Security
National Protection and Programs Directorate
Office of Infrastructure Protection

Re: Docket No. DHS-2009-0026
The American Petroleum Institute (API) is pleased to offer the following comments in response to the
U. S. Department of Homeland Security (DHS) proposed collection of information request. API
represents over 400 member companies involved in all aspects of the oil and natural gas industry and, as
such, could be adversely impacted by this Agency action.
General Comments
API and its member companies believe it is important to provide effective personnel surety at high-risk
chemical facilities to ensure that individuals with unescorted access to restricted areas or critical assets
have suitable backgrounds checks. API and its members support a Personnel Surety Program (PSP) that
can efficiently and effectively check appropriate Personally Identifiable Information (PII) against the
Terrorist Screening Database (TSDB). However, API and its members are concerned about several
aspects of how the PSP program will be administered in accordance with 6 CFR 27.230(a)(12)(iv) of the
Chemical Facility Anti-Terrorism Standards (CFATS), as described in the June 10, 2009 information
collection request.
In general, API is concerned that DHS has not provided enough detail about the program to make a
reasonable estimate of either the positive or negative impact it may have. As an example, there is no
information provided as to the specifics that is to be collected or otherwise known as Personally
Identifiable Information (PII). If a physical description of the individual is required to be given, a host of
concerns would arise in regards to the qualifications of those individuals required to make that
assessment. Additionally, companies would be very concerned from a profiling standpoint and there
would be great sensitivities from both the submitter and the submitted. The extent of PII required is also
concerning from the perspective of needless and duplicative reporting burden. Typically, minimal
information is useful in making an initial determination as to whether an individual is of concern, and
then subsequently more information about that person can be gathered during a more involved
investigation. Ultimately, API and its members have great concerns about the total impacted population
from this program, and believe strongly that DHS must conduct and show the results of its analysis to
this effect to ensure the program is as efficient as possible and not duplicative in any way.

DHS also does not explain how often PII will need to be updated by a facility. Maintenance of PII
required by a facility could be extremely cumbersome. Many facilities have authorized contractors who
have access to multiple facilities but are not employees of the facility. Under the Transportation Worker
Identification Credential (TWIC) program, these types of workers are effectively addressed since the PII
vetting process is tied to the individual and NOT the facility. Under this program, each individual will
be required to keep his/her PII up to date and submitted to DHS for each facility that s/he has
unrestricted access to. It is unclear how this information will be reviewed, checked for quality,
coordinated with other facilities, or how often it will need to be updated.

Personnel vetting should be tied to the individual and not to a facility.
Personnel vetting should be tied to the individual and not to a facility. By requiring each high-risk
facility to report PII on all personnel who have unescorted access to restricted areas, including company
employees and contractors, it will create duplicative reporting for each facility that an individual has
access to. This is unnecessary and inefficient and will likely result in multiple records for the same
individual. Additionally, it will vastly increase the potential for error, inconsistent results, and
potentially significant complications in the event of an errant threat finding requiring adjudication by the
agency. Once a TSA background check is completed for an individual through the TSDB that
individual should be recognized as cleared and not a terrorist threat.
Where an individual may be granted access to multiple facilities, it is highly unnecessary to require
submission of duplicative information by each facility. In addition to chemical facility personnel,
corporate executives, contractors and truck drivers often require access to several facilities. Mandating
the submission of redundant data is certain to generate unnecessary errors and inconsistencies. Once an
individual has been cleared, there is no security purpose served by repeating the exercise.
API recommends that successful completion of a terrorist background check for an individual be
confirmed in a fashion that would preclude any requirement for duplicative reporting and should be
performed only once in a given period.
Further, the administrative burden of maintaining up-to-date PII on all individuals with unescorted
access to restricted areas at each high-risk chemical facility indefinitely would create a substantial,
duplicative and unnecessary burden on the industry since many of these individuals require access to
multiple facilities.

Results from Background Checks Should be Made Available to the Individual.
DHS states that “[it] will not provide screening results to high-risk chemical facilities nor to the
individuals whose PII is submitted by high-risk facilities.” DHS’s current approach conflicts with the
preamble to the CFATS Interim Final Rule, which states that “DHS will screen applicants and determine
whether the applicant poses a security threat. DHS will notify the facility and applicant via U.S. mail,
with information concerning the nature of the finding and how the applicant may contest the finding.
Applicants will have the opportunity to seek an adjudication proceeding and appeal under Subpart C.”
(72 Fed. Reg. 17,709). API and its members are concerned that individual rights could be violated and
individuals will have no means for repudiation.
2

DHS intends to seek an exemption to the Paperwork Reduction Act pursuant to 5 CFR 1320.8(b)(3). If
granted, this would allow the Department to refrain from notifying affected individuals regarding the
reasons for the collection, how the information will be used, or whether responses to the collection are
voluntary or mandatory, among other things. API believes such an exemption is unwarranted and may
violate the privacy rights of the affected individual.
Recommendation
In conclusion, API and its members believe that the proposed Personnel Surety Program will place an
undue burden—in regards to time, money and other resources—on industry by creating a duplicative
program. Instead, it is our recommendation that DHS adopt the TSA’s TWIC program rather than
developing a new and unique program as proposed. API and its members do not believe that a separate
PSP program to be administered by the Chemical Compliance Division needs to be established for the
proper performance of the Agency. DHS already has the TWIC program in place that effectively
provides the appropriate personnel security assurances. TWIC is jointly administered by the US Coast
Guard and TSA and is required at all MTSA facilities for individuals that have unescorted access to
restricted areas.
API and its members believe that the proposed PSP is not necessary given the alternatives already at
hand. It would result in an incomplete process that is administratively cumbersome and it would fail to
achieve the objectives of the DHS CFATS program without a significant, unnecessary, and
inappropriate misallocation of limited resources. As proposed, the PSP could result in a national
chemical facility personnel database filled with multiple errors, omissions, and redundancies.
Thank you for this opportunity to comment on this important program. If you have any questions, please
feel free to contact me at your convenience.

Sincerely,

Robin Rorick

3

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0018_CP.html

PUBLIC SUBMISSION

As of: September 16, 2009
Received: September 01, 2009
Status: Posted
Posted: September 01, 2009
Tracking No. 80a19f12
Comments Due: August 10, 2009
Submission Type: E-Mail

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0018
Comment Submitted by Darius D. Sivin, Pd.D, International Union, UAW

Submitter Information
Name: Darius D Sivin, Pd.D
Address:
1757 'N' St. NW
Washington, DC, 20036
Email: dsivin@uaw.net
Phone: 202-828-1618
Fax: 202-293-3457
Organization: International Union, UAW

General Comment
Please see the attachments

Attachments
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file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0018_CP.html

DHS-2009-0026-0018:

Comment Submitted by Darius D. Sivin, Pd.D,
International Union, UAW
DHS-2009-0026-0018.1: Comment Submitted by Darius D. Sivin, Pd.D,
International Union, UAW (Attachment)

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Comments Responding to:
Department of Homeland Security
National Protection and Programs Directorate Office of Infrastructure Protection
[Docket No. DHS-2009-0026]
Submission for Chemical Facility Anti-Terrorism Standards
Personnel Surety Program Information Collection 1670-NEW
Submitted by
Alan Reuther, International Union, United Automobile Aerospace & Agricultural
Implement Workers of America (UAW)
David LeGrande, Communications Workers of America (CWA)
Rick Hind, Greenpeace
John Morawetz, International Chemical Workers Union Council,
United Food and Commercial Workers Union (ICWUC/UFCW)
Brian Turnbaugh, OMB Watch
Mike Wright, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union (USW)
The Office of Management and Budget Is Particularly Interested in Comments Which
1. 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;
The proposed use of the consolidated and integrated terrorist watchlist by DHS
represents a major expansion of the population for whom being on the watchlist could
adversely affect employment status. An adverse employment decision could occur after
federal law enforcement contacts a high risk chemical facility. This is a matter of
concern both for those who may ultimately be innocent even though they are properly
on the watchlist and for the many who are not properly on the watchlist. We think the
information obtained by comparing names collected from high risk chemical facilities to
the consolidated and integrated terrorist watchlist will be severely limited in its practical
utility due to the large number of names on the watchlist that may not belong there.
These include:
a. Names of individuals that are not associated with a case containing any of the
following current designations: international terrorism, domestic terrorism or

Comments on Docket No. DHS-2009-0026
bombing, and for whom there exists no other justification for them to be on
the watchlist.
b. Names of individuals that should have been removed from the watchlist after
their cases were closed but weren’t removed at all or whose removal was
tardy.
c. Nominations submitted directly to the National Counterterrorism Center
(NCTC) by FBI field offices bypassing FBI headquarters and FBI quality
review.
d. Nominations extracted by NCTC from agency reports and attributed to
specific agencies without the knowledge of those agencies. Such agencies
include the FBI, Drug Enforcement Administration (DEA) and U.S. National
Central Bureau (USNCB).
Individuals not associated with a case with a current terrorism related
designation (a above): The Office of the Inspector General (OIG) of the Department of
Justice (DOJ) examined 68,669 identities on the consolidated terrorist watchlist for
which the Terrorism Screening Center (TSC) indicated that the Federal Bureau of
Investigation (FBI) was the source of the nomination. Approximately 35% of these or
23,911 were based on FBI cases that did not contain a current designation that included
any of the following: international terrorism, domestic terrorism or bombing.
After examining a sample representing 101 individuals whose nominations for the
watchlist came from FBI field offices and were based on FBI cases whose designation
was not any of the above, OIG concluded that 60 of those did not belong on the
watchlist. OIG found documentation that ten of these people had been stopped a total
of 49 times by law enforcement and had been subjected to unnecessary screening
and/or questioning. Of the ten, eight were described by OIG as “U.S. persons.” An
examination of similar sample of 39 individuals whose nominations came from FBI
headquarters, indicated that 31 of those did not belong on the watchlist. In all 91, out of
140 individuals nominated by FBI headquarters or field offices did not belong on the
watchlist 1 . This means that, in the samples examined, 65% of those who were not
associated with a current case carrying one of the above designations did not belong on
the watchlist. If we assume that the 65% figure applies to all 23,911 watchlist entries
not associated with a current case carrying one of the above designations, the result is
over 15,000 names on the watchlist that do not belong. This translates to more than
20% of all those nominated by the FBI. There is no particular reason to believe that the
FBI’s error rate is more or less than any other agency.
The OIG noted that there is no procedure for modifying or removing watchlist records
of individuals not currently under an FBI investigation with a terrorism related
designation 2 .
1

U.S. Department of Justice Office of the Inspector General Audit Division (OIG, 2009). THE FEDERAL
BUREAU OF INVESTIGATION’S TERRORIST WATCHLIST NOMINATION PRACTICES. Audit Report 0925 May 2009. http://www.usdoj.gov/oig/reports/FBI/a0925/final.pdf. pp.46-60
2
U.S. Department of Justice Office of the Inspector General Audit Division (OIG, 2008). AUDIT OF THE

-2-

Comments on Docket No. DHS-2009-0026

Tardy removals (b above): Although FBI policy requires that the subjects of closed
terrorism investigations be removed from the watchlist, the OIG found that, in 8% of
cases examined, the subject of a closed investigation was never removed. OIG
evaluated 85 cases, closed by three field offices, in order to determine whether the
agency removed the subjects of closed cases in a timely manner or provided adequate
justification for retaining the subject on the watchlist. Of these, 61 (72%) took more than
10 days to be removed after their cases were closed. 46 of these 61 were “U.S.
persons.” The mean number of days for removal was 60 and the median was 26. Nine
of the 61 individuals were screened a total of 13 times resulting in 6 travel delays and
two secondary screenings. Among those screened, four were “U.S. persons.” In
addition, one unrelated person was stopped for having the same name as one of these
individuals whose names were on the watchlist but should have been removed 3 .
Nominations submitted directly by FBI field offices (c above): This nominating
practice is not covered by FBI policy and there is no requirement for FBI personnel to
insure that any resulting watchlist records are updated or removed as appropriate. Nor
is there any mechanism to insure that the nominations themselves are appropriate or
that the information is complete and accurate 4 .
Nominations extracted by NCTC from agency reports (d above): The NCTC has
treated FBI Intelligence Information Reports, DEA intelligence documents that contain
information on known or suspected terrorists, and information provided by USNCB as
official watchlist nomination requests. However, these agencies were unaware of this
practice. Hence the reports were not reviewed for completeness and accuracy of
nomination-related information. Nor were the agencies responsible for these
nominations submitting requests to modify or remove these records where appropriate
because they were unaware of the existence of the records 5 .
Although the information above comes from the Office of the Inspector General of the
Department of Justice and does not necessarily pertain to non-DOJ agencies, we are
unaware of any reason to believe that the performance of non-DOJ agencies in
submitting watchlist nominations is substantially different from the performance of DOJ
agencies. Hence, we believe that the information obtained by comparing names
collected from high risk chemical facilities to the terrorism watchlist will be severely
limited in its practical utility. One of the reasons that watchlist is overinclusive in the
ways identified by the DOJ OIG is that its designers did not imagine that the adverse
consequences of being on the watchlist would be greater than being kept off an
airplane. The use proposed by the Department would represent a major expansion of
the population for whom being on the watchlist could adversely affect employment

U.S. DEPARTMENT OF JUSTICE TERRORIST WATCHLIST NOMINATION PROCESSES. Audit Report 0816. http://www.usdoj.gov/oig/reports/plus/a0816/final.pdf. p.10
3
OIG, 2009. pp. 36-45
4
OIG, 2008. p.10
5
Ibid., pp.13-14, 17-19

-3-

Comments on Docket No. DHS-2009-0026
status. Such an increase in consequences should be accompanied by a proportionate
increase in protection against being inappropriately placed on the watchlist.
2. Evaluate the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used;
We believe that the agency’s estimate of the burden of the information collection leaves
out the burden on the affected employees whose personally identifiable information (PII)
matches that of a record on the watchlist. The information provided in response to
question 1 suggests that one in five matches may be matches to records that should not
be on the watchlist. These matches may result in unnecessary investigative action.
Although DHS will not provide screening results to high risk chemical facilities, federal
law enforcement may contact such facilities as part of an investigation. Such contacts
may result in adverse employment decisions. Hence the potential burden includes
unnecessary intrusive investigations and unjustified adverse employment decisions, that
could result from one’s, possibly unjustified, presence on the watchlist.
3. Enhance the quality, utility, and clarity of the information to be collected;
Enhancing the quality, utility and clarity of the information to be collected requires
correcting the flaws in the watchlist identified above. Such corrections would protect
people from the unnecessary intrusive investigations and the unjustified adverse
employment decisions that might otherwise result from the Department’s proposed use
of the watchlist.
4. Minimize the burden of the collection of information on those who are to
respond, including through the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms of
information technology, e.g., permitting electronic submissions of
responses.
The most important burden does not have to do with the time, effort or expense it takes
to submit the information. It has to do with the potential for unnecessary intrusive
investigations and unjustified adverse employment decisions. It cannot be minimized
through the use of technological collection techniques. It can be minimized only by
correcting the flaws in the watchlist identified above.
The Department Is Particularly Interested in Comments Which
1. Respond to the Department's interpretation of the population affected by
RBPS 12 background checks outlined in 6 CFR 27.230(a)(12);
Providing an informed response to the Department’s interpretation of the population
affected by RBPS 12 background checks outlined in 6 CFR 27.230(a)(12) would require
the Department to provide information about the number of facilities in each tier and the
-4-

Comments on Docket No. DHS-2009-0026
number of individuals the department estimates are covered per facility and its method
for arriving at the number of individuals per facility.
2. Respond to fact 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;
We are concerned about the possibility that such contact will result in adverse
employment decisions. This is a matter of concern in cases in which individuals may
eventually turn out to be innocent even though they are properly on the watchlist. It is
an even greater matter of concern for the large number of individuals who are
improperly on the watchlist.
3. Respond to the Department on its intention to seek an exception to the
notice requirement under 5 CFR 1320.8(b)(3).
We would be opposed to such a waiver due to the potential of the information to lead to
intrusive investigations and and/or adverse employment decisions. We think that the
potential consequences are serious enough that each individual whose PII is submitted
should be notified of:
-

the reason for the submission,
how the information will be used,
the fact that the potential burden could be an intrusive investigation or an
adverse employment decision, and
whether responses are voluntary or mandatory.

Contact:
Darius D. Sivin, Ph.D.
International Union, UAW
1757 'N' St. NW
Washington DC 20036
Phone: (202) 828-1618
Fax: (202) 293-3457
dsivin@uaw.net

-5-

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0019_CP.html

PUBLIC SUBMISSION

As of: September 16, 2009
Received: September 01, 2009
Status: Posted
Posted: September 01, 2009
Tracking No. 80a1a0e1
Comments Due: August 10, 2009
Submission Type: E-Mail

Docket: DHS-2009-0026
Chemical Facility Anti-Terrorism Standard, PRA 60 Day Notice for Comments on New
Personnel Surety Information Collection Request
Comment On: DHS-2009-0026-0001
Submission for Chemical Facility Anti-Terrorism Standards Personnel Surety Program
Information Collection 1670-NEW
Document: DHS-2009-0026-0019
Comment Submitted by Rick Engler, New Jersey Work Environment Council

Submitter Information
Name: Rick Engler
Address:
142 West State Street - Third Floor,
Trenton, NJ, 08608-1102
Email: www.njwec.org
Phone: 609-695-7100
Fax: 609-695-4200
Organization: New Jersey Work Environment Council

General Comment

Attachments

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0019_CP.html (1 of 2) [9/16/2009 8:22:46 AM]

file:///P|/Chemical%20Security%20Compliance%20Division/TO%...R%20Notices/60%20Day%20Comments/DHS-2009-0026-0019_CP.html

DHS-2009-0026-0019.1: Comment Submitted by Rick Engler, New Jersey Work
Environment Council (Attachment)

file:///P|/Chemical%20Security%20Compliance%...%20Day%20Comments/DHS-2009-0026-0019_CP.html (2 of 2) [9/16/2009 8:22:46 AM]

From: Darius Sivin [mailto:DSivin@uaw.net]
Sent: Thursday, August 27, 2009 2:48 PM
To: Armstrong, Sue E
Subject: FRN Comments

Sue,
Given that our submission was already late, I am not going to ask permission to modify it, but I would be
grateful if you could print this e-mail and add it to the docket to show that the New Jersey Work
Environment Council is in support of our comments. Thanks.

From: RICKENGLER
To: DSivin@uaw
CC: david@dtesq.com
Sent: 8/27/2009 2:21:33 P.M. Eastern Daylight Time
Subj: FRN Comments

Hi Darius, if not too late, please sign WEC on. Thanks, Rick
Rick Engler
Director, New Jersey Work Environment Council
142 West State Street - Third Floor, Trenton, NJ 08608-1102
The best number to reach me is:
Northern Jersey Office: (201) 389-3189 with forward to cell phone
Main Office:
(609) 695-7100
Main Office Fax: (609) 695-4200
www.njwec.org
On the Web:
Darius D. Sivin, Ph.D.
International Representative
Legislative, Governmental and International Affairs
United Automobile, Aerospace and Agricultural Implement Workers of America (UAW)
1757 'N' St. NW
Washington DC 20036
Work: (202) 828-1618
Cell: (734) 845-6080
Fax: (202) 293-3457
dsivin@uaw.net