List of Commenters That Submitted Comments to OMB 

& DHS About The CFATS PS Program Information 

Collection Request 

Comment # Submitter Where to Find A Copy 

of The Comment File Names 

1 Multi-Association Letter 

Sent to OMB 

Docket # 

DHS-2012-0061 

 Comment #1 - Multi-Association 

Letter To OMB 

2 Institute of Makers of 

Explosives 

Docket # 

DHS-2012-0061 

 Comment #2 - Institute of Makers of 

Explosives Letter to OMB 

 Comment #2 - Attachment to IME 

Comment 

3 American Chemistry 

Council 

Docket # 

DHS-2012-0061 

 Comment #3 - American Chemistry 

Council Letter to OMB 

 Comment #3 - Attachment to ACC 

Comment (Cost Burden Estimate - 

July 2011) 

 Comment #3 - Attachment to ACC 

Comment (Revised Cost Burden 

Estimate - October 2011) 

4 U.S. Chamber of 

Commerce 

Docket # 

DHS-2012-0061 

 Comment #4 - US Chamber of 

Commerce Letter to NPPD 

5 Shell Oil Company Docket # 

DHS-2011-0033 

(CFATS PS SORN) 

http://www.regulations.gov/#!documentDe

tail;D=DHS-2011-0032-0003

6 Ioannis Constantinides Docket # 

DHS-2011-0032 

(CFATS PS Privacy 

Act Exemption) 

http://www.regulations.gov/#!documentDe

tail;D=DHS-2011-0033-0004
July 11, 2011

Kim Nelson

DHS Desk Officer

Office of Information and Regulatory Affairs

Office of Management and Budget, New Executive Office Building, Room 10236

725 17th Street, NW.

Washington, DC 20503

Re: DHS NPPD; Chemical Facility Anti-Terrorism Standards Personnel

Surety Program -- ICR Reference No. 201105-1670-002

Dear Ms. Nelson:

The undersigned organizations represent a broad spectrum of the chemical and 

petrochemical industries. We thank you for meeting with representatives of several of 

our organizations on June 2 regarding this important DHS collection proposal. Now that 

DHS has officially submitted the collection to OIRA,1 we are writing to describe our very 

serious concerns with it. We urge OIRA to disapprove this collection for four reasons: 

(1) the proposed PSP is unnecessary for the proper performance of DHS’s functions; (2) 

the proposed PSP is unnecessarily duplicative; (3) DHS has not complied with the 

procedural requirements of the Paperwork Reduction Act (PRA) and OMB’s PRA 

regulations; and (4) DHS has failed to include within the ICR key facts without which it 

is impossible to assess the burden of DHS’s proposed collection.

2

By way of background, the proposed collection would implement the “Personnel Surety 

Program” (PSP) that DHS has developed under its “Chemical Facility Anti-Terrorism 

Standards” (CFATS) regulations, issued in relevant part in 2007.3 The CFATS rules 

establish various risk-based performance standards (RBPS) that regulated chemical 

facilities are required to meet, which include RBPS #12: “Perform[ing] appropriate 

background checks on and ensure appropriate credentials for facility personnel, and as 

appropriate, for unescorted visitors with access to restricted areas or critical assets, 

including . . . [m]easures designed to identify people with terrorist ties.”4 The PSP is 

DHS’s proposed mechanism by which facilities must meet the RBPS #12 standard. The 

PSP would require facilities to submit to DHS personally-identifying information 

 1

 76 Fed. Reg. 34720 (June 14, 2011).

2 The development of these comments was supported by the Society of Chemical 

Manufacturers and Affiliates.

3 See 72 Fed. Reg. 17688, 17733 (Apr. 9, 2007).

4

 6 C.F.R. § 27.230(a)(12).
ICR Reference No. 201105-1670-002

July 11, 2011

Page 2

regarding individuals seeking access to restricted areas and critical assets at the facility. 

DHS would then arrange for these individuals to be checked against the FBI’s classified 

Terrorist Screening Database (TSDB).5

Our associations, and their member companies, have collaborated closely and 

cooperatively with DHS to stand up the CFATS program quickly and effectively. We

have also actively supported legislation to reauthorize that program for years to come. 

We will continue to work with DHS toward our shared goals, including personnel surety.

The currently proposed PSP is improved in some respects from what DHS previously 

described. On balance, however, and as explained below, compliance with the proposal 

will draw critical facility resources away from the task of implementing other aspects of 

the CFATS program and from securing facilities more generally.

I. The Proposed PSP Is Unnecessary for the Proper Performance of DHS’s

Functions

The statutory authority under which DHS has issued the CFATS rules is a rider to an 

appropriations statute and is quite general – it provides merely that DHS “shall issue 

interim final regulations establishing risk-based performance standards 

for security of chemical facilities.”

6

 Importantly, however, it left the choice of security 

measures to the facility, so long as they satisfied the relevant standard:

[S]uch regulations shall permit each such facility, in developing and 

implementing site security plans, to select layered security measures that, in 

combination, appropriately address the vulnerability assessment and the riskbased performance standards for security for the facility[; and] the Secretary may 

not disapprove a site security plan submitted under this section based on the 

presence or absence of a particular security measure, but the Secretary may 

disapprove a site security plan if the plan fails to satisfy the risk-based 

performance standards established by this section.7

Thus, DHS has statutory authority only to require attainment of the performance standard 

that it sets, not to prescribe how a facility achieves attainment. Put another way, DHS 

must accept any security measure that meets the applicable performance standard.

As noted above, the performance standard driving the PSP – RBPS #12 – is that regulated 

facilities “[p]erform appropriate background checks on and ensure appropriate credentials 

for facility personnel, and as appropriate, for unescorted visitors with access to restricted 

 5

 76 Fed. Reg. 34721.

6

 Pub. L. No. 109-295, § 550(a), 6 U.S.C. § 121 note.

7 Id.
ICR Reference No. 201105-1670-002

July 11, 2011

Page 3

areas or critical assets, including . . . [m]easures designed to identify people with terrorist 

ties.”8

This regulatory text does not itself mention the TSDB, or require facilities to submit any 

information to DHS. It certainly does not require facilities to give DHS information so 

that DHS can develop and maintain databases on which individuals have been to which 

regulated facilities. The rule text only requires that facilities perform “appropriate” 

background checks and ensure “appropriate” credentials “to identify people with terrorist 

ties.” 

DHS currently issues roughly a half-dozen credentials that require, as a condition of 

issuance, that DHS check the applicant against the TSDB – most notably including the 

Transportation Worker Identification Credential (TWIC) and the Hazardous Materials 

Endorsement (HME) to a commercial drivers license. Moreover, DHS perpetually “vets” 

these credentials against the TSDB so that it will discover if a holder subsequently is 

added to the TSDB – it describes this as “a DHS best practice.”9

A great many of the contractors and visitors that may require access to a CFATSregulated facility possess one of these credentials. In our considered view, a facility has 

satisfied its obligation under RBPS #12 if it determines that an individual possesses one 

of them. We believe that any additional requirement for facilities to submit information 

regarding these individuals to DHS is beyond DHS’s ability to compel, especially since 

DHS already has the ability to vet these persons’ credentials on a continuing basis and, if 

it gets a hit against the TSDB, to revoke the credential, alert the FBI so that it can place 

the person under surveillance, etc. We do not believe DHS has the authority to enlist 

regulated facilities as part of its scheme to track the comings and goings of people who 

have had access to regulated facilities, in the highly unlikely event that one of them will 

turn out, after having obtained a TWIC or similar credential, to have some terrorist tie. In 

short, we not believe RBPS #12 currently empowers DHS to compel our members to 

facilitate “a DHS best practice.” DHS noted these arguments in its third ICR notice, but 

its responses are utterly non-responsive.10

Thus – at least with respect to individuals who possess credentials like the TWIC or 

HME – the PSP is not “necessary for the proper performance of the functions of the 

agency,” and cannot be approved under the PRA.11 If DHS believes it has the statutory 

 8

 6 C.F.R. § 27.230(a)(12).

9

 76 Fed. Reg. 34723-24.

10 See id. at 34730. 

11 See 44 U.S.C. § 3508 (“Before approving a proposed collection of information, the 

Director shall determine whether the collection of information by the agency is necessary 

for the proper performance of the functions of the agency . . . .”). Cf. OMB, THE 

PAPERWORK REDUCTION ACT OF 1995: IMPLEMENTING GUIDANCE 38 (Preliminary draft 
ICR Reference No. 201105-1670-002

July 11, 2011

Page 4

authority to mandate as specific a performance measure as the PSP, it needs to go through 

rulemaking to seek to amend its CFATS performance standards to specifically require 

that action. 

II. The Proposed PSP Is Unnecessarily Duplicative

As just explained, many of the individuals who will require access to CFATS-regulated 

facilities possess DHS-issued credentials that are perpetually vetted by DHS against the 

TSDB. With respect to these individuals, the PSP’s requirement that such facilities 

collect and submit to DHS information about their credential serial numbers, expiration 

dates, and (in the case of HMEs) issuing state is “unnecessarily duplicative of 

information otherwise reasonably accessible to the agency.”12 For this reason as well, 

OMB should disapprove the ICR.

III. DHS Has Not Followed the PRA and OMB’s Implementing Rules

The PRA generally requires federal agencies proposing a new collection of information 

to provide the public 60-days notice of the proposed collection, with comments to be 

submitted to the agency,13 and upon submission of the proposed collection to OMB, to 

give the public an additional 30-day opportunity to provide comments to the agency “and 

the Director,” i.e., OMB.14 

OMB’s implementing regulations reiterate these obligations: an agency must publish a 

60-day notice as part of its own review,15 and then must publish a 30-day notice 

indicating that comments can be sent to the agency and “submitted to OMB.”16 The 

reason for submission of comments to OMB is because OMB’s own rules require it to 

“provide at least 30 days for public comment after receipt of the proposed collection of 

information before making its decision. . . .”17 

 

Feb. 3, 1997) (“The term ‘need’ means that some programmatic or policy requirement (as 

opposed to a desire for information . . .) exists.”).

12 Id. at § 3506(c)(3)(B); cf. PAPERWORK REDUCTION ACT GUIDANCE, supra at 40 (“The 

term ‘unnecessary duplication’ means that information similar to or corresponding to 

information that could serve the agency’s purpose and need is already accessible to the 

agency.”).

13 44 U.S.C. § 3506(c)(2)(A).

14 Id. § 3507(a)(1)(D)(ii)(VI).

15 5 C.F.R. § 1320.5(a)(1)(i), § 1320.8(d).

16 Id. § 1320.5(a)(1)(iv)(B)(6).

17 Id. § 1320.12(d). The only exception to this rule is in the case of emergency 

collections, not relevant here. Id.; see also § 1320.13. We cite Section 1320.12 of 

OMB’s PRA rules because it governs collections associated with a current regulation, as 

in the case of the PSP, but even if the PSP were considered a free-standing collection, the 

relevant requirements would be the same. See id. § 1320.10(a) (“The notice shall direct 
ICR Reference No. 201105-1670-002

July 11, 2011

Page 5

DHS has published three Federal Register notices regarding the PSP, but it has never 

requested that comments be sent to OMB:

• The first, published on June 10, 2009, was a PRA-compliant 60-day notice.18

• The second, published on April 13, 2010, looked like the first notice. It repeated 

the first notice’s statement that DHS “will be submitting the following 

information collection request” to OMB.19 It gave the public 30 days to file 

comments, but it directed them to be submitted exclusively to DHS,20 which made 

sense at the time – what point would there be commenting to OMB on an ICR that 

had not yet been submitted to it? The second notice also cited only Section 

1320.8 of OMB’s PRA rules, which governs how agencies “shall review each 

collection of information before submission to OMB. . . .”21 The notice spent a 

great deal of time addressing comments that were filed on the first notice.22 The 

general understanding of the regulated community at the time was that DHS was 

conducting an additional round of notice and comment, since (i) the first notice 

had been so short (only three pages) and (ii) DHS was now supplying so much 

new information in its response to comments.

• The third notice, published on June 14 of this year, is merely a response to 

comments filed in response to the second notice – indeed, that is how it is 

styled.23 While it announces that DHS “has submitted” the ICR to OMB,24 it does 

not invite the public to submit comments to anyone. And if one checks the docket 

for this ICR in Regulations.gov, where prior comments had been directed, one 

sees that the docket is no longer open for comment.25

We appreciate your statement at our June 2 meeting that OMB would consider comments 

on this ICR filed within 30 days of the publication date. Other potentially interested 

 

comments to the Office of Information and Regulatory Affairs of OMB, Attention: Desk 

Officer for [name of agency].”).

18 See 74 Fed. Reg. 27555 (citing 5 C.F.R. § 1320.8 and giving the public 60 days to 

submit comments to DHS).

19 See 75 Fed. Reg. 18850.

20 Id.

21 Id.; see 5 C.F.R. § 1320.8.

22 See 75 Fed. Reg. 18852-18856.

23 See 76 Fed. Reg. 34720 (“Action: Response to comments received during 30-day 

comment period: New information collection request 1670-NEW”).

24 Id. at 34721.

25 Go to 

http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DHS

-2009-0026.
ICR Reference No. 201105-1670-002

July 11, 2011

Page 6

members of the public are not necessarily aware of that possibility, however. And 

OMB’s generous willingness to consider comments filed in response to the third notice 

cannot excuse DHS’s failure to do as it was required: to invite the public to submit 

comments to OMB on the ICR after its submission. 

IV. The ICR Omits Information Essential to Estimating Burden

A fundamental part of an agency’s responsibility under the PRA is to invite public 

comments on “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.”26 Obviously, in order for the public to be able to do that, it must be provided with 

information from which it can conduct its own estimates of burden. But DHS has 

omitted crucially important information.

The core function of the PSP is to provide a web-based mechanism by which regulated 

facilities can submit personally-identifying information regarding individuals seeking 

access to restricted areas and critical assets at the facility.27 How burdensome this 

requirement will be will depend in substantial part on two questions left unanswered by 

DHS:

1. Whether this information has to be collected and submitted (and potentially 

confirmation of receipt received) before the person can be granted access. Chemical 

facilities frequently have important contractors and visitors arriving upon short or no 

notice. They may require such people to come on site suddenly – for example, if a 

production unit goes down or otherwise requires emergency maintenance. Our sectors 

have proposed to DHS that it allow facilities to meet their “terrorist ties” screening 

requirement by accepting Federal credential that require such screening to be issued (e.g., 

the TWIC), but DHS has steadfastly rejected this proposal and insisted on the submission 

of additional information regarding such individuals.28

A requirement that the facility know the identity of the particular individuals who will or 

may be arriving at the plant in advance would impose a substantial burden. In order to 

maintain maximum flexibility, facilities would need to clear all such individuals as it 

anticipates might conceivably need to come on site – likely many more than might

actually show up. For example, all technicians working for an electrical contractor, or all 

truck drivers working for a delivery truck company, might need to be identified, in 

coordination with those employers, and then their information submitted. This analysis 

does not even begin to take into account the collateral or indirect effects on a plant of not 

being able to clear someone as quickly as they are needed. Conceivably, a production 

 26 5 C.F.R. § 1320.8(d)(1)(ii).

27 76 Fed. Reg. 34721.

28 Id. at 34723-24.
ICR Reference No. 201105-1670-002

July 11, 2011

Page 7

unit might have to be shut down because the requisite minimum prior notice period had 

not expired.

DHS had not previously alluded to a prior notification requirement in connection with the 

PSP until the third notice was published last month. In that document, however, DHS 

announced that it was going to require the submission of information on “new affected 

individuals prior to access . . . .”29 It added that it was “considering whether to establish 

that high-risk chemical facilities be required to submit the information at least 48 hours 

prior to access. . . .”30 Whether DHS will actually implement this – or some other – prior 

notice requirement has a potentially enormous effect on the burden that the PSP will 

impose. But we do not know what DHS will do.

2. If information can be submitted after the fact, how often? The burden of 

managing information collected under the PSP and submitting it to DHS will also vary 

greatly depending on how often it has to be submitted: In real time? Daily? Weekly? 

Monthly? Obviously, the more immediately the information must be submitted, the 

greater the burden. This would particularly be true if submissions were due in real time 

or daily, as the job would of necessity fall to the guards and other individuals collecting 

the information. The more infrequent the submissions, the more likely the task could be 

made the part-time responsibility of one or more IT staff. 

But DHS has not provided this schedule. Its first notice was completely silent on the 

topic. The second notice provided a “proposed schedule” that set out of 30-90 day 

deadlines, depending on the risk-based tier of the facility.31 However, the third notice 

implicitly rescinded this schedule, stating instead that, “[b]ased in part on commenters’ 

concerns, DHS will revise the proposed information submission schedule previously 

published in the 30-day notice.”32 Given that one of the changes made “based in part on 

commenters’ concerns” was to impose a prior notice requirement, we are not sanguine 

that the revised schedule will not contain shorter deadlines. But we (and DHS) cannot 

accurately estimate burden without knowing that schedule.

 29 Id. at 34724.

30 Id.

31 See 75 Fed. Reg. 18852-53.

32 76 Fed. Reg. 34724.
ICR Reference No. 201105-1670-002

July 11, 2011

Page 8

* * *

For the reasons explained above, OMB should disapprove this ICR and instruct DHS to 

resubmit it (i) following the procedural requirements of the PRA and OMB’s rules and 

(ii) suitably narrowed to meet the substantive requirements of the PRA.

Sincerely,

Agricultural Retailers Association

American Coatings Association

Chemical Producers and Distributors Association

Compressed Gas Association

CropLife America

Institute of Makers of Explosives

International Institute of Ammonia Refrigeration

International Liquid Terminals Association

National Association of Chemical Distributors

National Petrochemical and Refiners Association

Society of Chemical Manufacturers and Affiliates

The Chlorine Institute

The Fertilizer Institute
















July 14, 2011

Ms. Kim Nelson

DHS Desk Officer

Office of Information and Regulatory Affairs

Office of Management and Budget, New Executive Office Building, Room 10236

725 17th Street, NW.

Washington, DC 20503

Re: Docket No. DHS-2009-0026 (Chemical Facility Anti-Terrorism Standards Personnel Surety 

Program); Federal Register / Vol. 76, No. 114/Tuesday, June 14, 2011

Dear Ms. Nelson:

The American Chemistry Council (ACC) offers the following comments related to the DHS 

Submission for Chemical Facility Anti-Terrorism Standards (CFATS) Personnel Surety Program 

Information Collection Request (ICR). Although ACC believes the ICR is necessary in order to support 

a robust CFATS program, we believe some of the approaches proposed by the DHS to collect, manage 

and report personal information of affected individuals could have negative unintended consequences and 

will create significant burden without additional benefit to enhance security.

Many ACC members are subject to the CFATS personal surety requirements and have a 

significant interest in how this program is developed and implemented. Ensuring that well qualified and 

trustworthy personnel are employed by and work for chemical facilities continues to be a priority for 

ACC members. Under the Responsible Care®Security Code, ACC member companies are required to 

conduct background checks of employees and confirm that checks have been completed for contractors 

and who have unescorted access to restricted areas and critical assets. Periodic reassessments are also 

required as well. We believe that the core elements of the CFATS program for personnel surety as 

outlined in Risk Based Performance Standard 12 are consistent with the background checks already 

utilized by ACC members and generally within the chemical industry. We support a robust, 

comprehensive and effective approach to screening employees and contractors that have unescorted 

access to restricted areas and critical assets at high risk facilities. 

Based on the information provided in the ICR notice, the burden has been significantly 

underestimated. The ICR cost estimate is based on the estimated population of employees and resident 

contractors at CFATS facilities. This population does not include the large numbers of transportation 

workers, vendors, corporate auditors, and other personnel who may need to be on site once or more

during the course of a year. DHS also does not consider the high rate of turnover in visitors to facilities 

which typically far exceeds turnover rates in the employee/resident contractor population. 

In addition the burden estimate ignores the cost of developing and maintaining a system to 

manage the relevant information (i.e., IT resources, training, etc.). It also ignores any capital costs that 

might be incurred to change the layout of facilities to reduce access to restricted areas. These burdens are 
ACC Letter to OMB – July 14, 2011

2

significant, and ACC believes that existing unduly burdensome methods can be deployed in a manner that 

meets DHS’s goals for personnel surety, overall goals that ACC fully shares and supports.

ACC believes that complete reciprocity with existing federal security credential and vetting 

programs such as the Transportation Worker Identification Credential (TWIC) and the Hazardous 

Materials Endorsement (HME) would reduce the significant reporting burden on industry associated with 

RBPS 12 compliance. While ACC understands that DHS does not necessarily intend to re-vet affected 

individuals who possess a valid federal credential, CFATS facilities would still be required to collect, 

submit and manage personal information on these individuals. This requirement potentially imposes a 

significant information collection and reporting burden. Indeed, the requirement may create a 

disincentive to leverage other existing federal credentials, since more information is required for these 

individuals than routinely required for other affected individuals that have not already been screened. In 

their response to comments in the subject ICR, DHS states that information required for TWIC holders 

includes: (1) Name; (2) Date of Birth; (3) TWIC Serial Number; and (4) Expiration Date, whereas, 

information required for affected individuals who have not been screened and do not possess a valid 

TWIC include: (1) Name; (2) Date of Birth; and (3) Gender or Citizenship.

The Chemical Sector Coordinating Council (CSCC), of which ACC is a long-time member, 

established a Personnel Surety Workgroup during the fall of 2010 to help DHS identify some alternative 

approaches that would provide assurance to DHS and covered facilities that chemical workers are 

properly vetted prior to being granted access to restricted areas and critical assets. ACC participated in 

several meetings with DHS leadership on this issue held during the latter part of 2010 and early in 2011. 

ACC supports the alternative approach offered by the CSCC and believes it would effectively accomplish 

the objectives outlined in RBPS 12. The essential aspects of the CSCC proposal included the following 

elements:

For chemical workers who have already been vetted and possess a valid federal credential, DHS 

should recognize existing government vetting programs that include all 4 elements outlined in RBPS 12:

(1) Verify and Validate Identity

(2) Check Criminal History

(3) Verify and Validate Legal Authorization to Work

(4) Identify People with Terrorist Ties

Covered facilities should be responsible for ensuring the validity of the federal credential to ensure it 

is legitimate, current and belongs to the holder requesting to gain access. This would eliminate the need 

for covered facilities to collect and submit duplicative information on a large population of affected 

individuals and would provide reasonable assurance that such individuals comply with the requirements 

of RBPS 12.

For chemical workers who are employees of a covered facility and have NOT previously been vetted 

could fall into one or both of two options:

(1) A Transitional Vetting Program whereby owner/operators of covered facilities conduct checks for 

items 1-3 above and provide DHS with personal identifying information (PII) for check of item 4 

(terrorist screening), or

(2) Expansion of the TWIC Program to CFATS covered facilities.

ACC recommends that owner/operators of covered facilities not be expected to vet contractors or 

visitors exclusively, but could rely on contracting/visiting companies to vet their own employees to the 

standards in RBPS 12 items 1-3. For item 4 (TSDB), DHS should set up a network of “Trusted Agents”
ACC Letter to OMB – July 14, 2011

3

including TWIC enrollment centers, local safety councils and channelers (e.g. Axiom, Cogent). These 

“Trusted Agents” would verify identity and collect Personal Identifying Information (PII), submit to DHS 

for Terrorist Screening, receive confirmation from DHS and provide confirmation to contractor. Owners 

and operators of covered facilities could include the above requirements in their contractual agreement 

and make compliance a condition of visitors gaining facility access.

In conclusion, ACC supports establishing a pilot program to test some of these concepts and 

incorporate changes to the existing DHS proposal that could a significant effect on minimizing burden 

while ensuring security at CFATS facilities. The pilot group should include a mix of owner/operators of 

CFATS covered facilities, potential trusted agents including local safety councils, contractors, DHS and 

other stakeholders. 

ACC also supports the comments submitted jointly by other members of the Chemical 

Infrastructure Sector and the Oil and Natural Gas Sector. While ACC does not in these comments discuss 

issues related to compliance with the procedural requirements of the Paper Work Reduction Act, ACC 

agrees that OMB should disapprove this ICR, as the economic burden associated with the program has 

been significantly underestimated.

Thank you for this opportunity to provide input on this important issue. ACC would appreciate 

the opportunity to meet with OMB pursuant to EO 12866, so that we can provide greater detail on the 

matters of concern. Please contact me if you have any questions or require further information.

Sincerely,

William J. Erny

Senior Director, Security

American Chemistry Council
 

 July 2011

© American Chemistry Council, Inc.

BACKGROUND

In April 2007, the Department of Homeland Security (DHS) finalized the Chemical Facility Anti-Terrorism Standards 

(CFATS) which aimed to increase security at the nation’s chemical facilities. One of the program elements includes 

a requirement “to submit information about facility personnel and, as appropriate unescorted visitors with access 

to restricted areas or critical assets.” The information collected will be submitted to DHS to be screened against 

known and suspected terrorists in the Terrorist Screening Database (TSDB). To screen individuals against the TSDB, 

DHS requires facilities to collect and submit personal information to the Department and to manage this information and provide updates when individuals no longer have access to restricted areas or critical assets1

. 

While the American Chemistry Council (ACC) supports the goal of increasing security at high-risk chemical facilities, 

the Council believes that, in contrast to the proposal currently set forth by DHS, there are less burdensome ways to 

collect and submit personal information for individuals with access to restricted areas and critical assets, especially 

those who have already been vetted by another Federal credentialing program. High risk chemical facilities that 

participate in Responsible Care® already conduct background checks on their employees that have access to restricted areas or critical assets. Unescorted visitors and resident contractors are also vetted. Similarly, many unescorted transportation workers that with access to restricted areas or critical assets possess transportation worker 

identification credential (TWIC) or hazardous materials endorsement (HME) credentials. Imposing a requirement 

that facilities report personal information about each individual at each facility will be costly and is unnecessary. 

The costs associated with this information collection request (ICR) far exceed the simplistic estimate that DHS prepared in April 2010 and subsequently updated in June 2011. ACC is concerned that the updated estimate continues 

to omit the substantial burden and costs associated with submitting information on visitors, update notifications, 

and resubmissions. 

CHANGES IN THE DHS ESTIMATE OF THE COST BURDEN FOR THE PERSONNEL SURETY PROGRAM ICR

In its initial estimate of the cost burden (Federal Register, 4/13/2010, page 18857), DHS estimates the burden to 

be $17.7 million annualized over three years. In its update estimate of the cost of the burden on industry (Federal 

Register, 6/14/2011, page 34732), DHS makes several changes to its initial estimate, including:

 Allowing turnover of employees/resident contractors in subsequent years

 Significantly increasing the number of Group A (large open) facilities by an “order of magnitude”. 

 Reducing by 3 minutes, the time to submit information for each respondent

 Reducing by half the hourly wage from $84.00 to $42.00. Apparently, DHS now assumes that an administrative worker, rather than the Site Security Officer (SSO) will be conducting the submissions. 

As a result of these changes, DHS estimates the total cost burden to be $29.7 million, up from $17.7 million in its 

April 2010 estimate. 

DHS SIGNIFICANTLY UNDERESTIMATES COST BURDEN

Despite the changes in the DHS estimate, ACC continues to believe that DHS has significantly underestimated the 

cost burden of the PSP. Below are several omissions in the DHS analysis:

 

1

Based on recent comments made by DHS at the Chemical Security Conference, (6-7 July 2011, Baltimore, MD), 

ACC assumes that update notifications to DHS will occur only when individuals (whether employees or visitors that 

are employees of other firms (i.e., delivery companies/vendors)) move out of positions that require them to be at 

the facility.

Updated Cost Burden Estimate for

DHS Personnel Surety Program

American Chemistry Council 

July 2011
2

 Submission of information about visitors

 Updates to DHS when individuals no longer have access to restricted areas and/or critical assets

 Resubmissions/clarifications of data submitted to DHS for errors and/or insufficient/conflicting data.

Omission of Visitors

ACC continues to challenge the Department’s implicit assumption that the number of affected individuals is limited 

to the number of employees and resident contractors2. This oversight has significant ramifications. First, it widely 

expands the number of affected individuals that would be required to provide information to facilities and then 

submitted to DHS. Based on information provided by member companies, there are two basic types of visitors:

 Infrequent visitors include individuals that may only visit each chemical facility once or twice over the 

course of a typical year. These include corporate managers/auditors, turnaround crews, salespeople, ad 

hoc repair workers, trainers, etc.

 Regular visitors include delivery personnel, transportation workers, maintenance contractors, certain 

vendors, etc. that are on-site on a regular basis.

Omission of Update Notifications

Because DHS requires both a submission prior to an individual having access to restricted areas or critical assets 

and also a notification when that person no longer has access, the number of submissions expands when the number of update notifications. At a minimum, it is reasonable to assume that facilities will be required to provide update submissions when employees and resident contractors turnover. In addition, turnover of visitors should also 

be included. When visitors are no longer employed or no longer needed to be at the facility, DHS should be notified that they no longer have access.

Omission of Resubmissions and Clarifications

It is not unreasonable to anticipate that a certain number of data submissions to DHS will result in the Department 

requesting clarifying information when errors or incomplete information are submitted to DHS. Facilities must then 

resubmit data, or when the error is not one of transcription, contact the individual to get the correct information 

or clarification and then resubmit the data. The time associated with this activity is not trivial.

ALTERNATIVE COST ESTIMATE OF THE PAPERWORK BURDEN

Using information provided by ACC members and basic cost assumptions implicit in DHS’s updated analysis, we 

have constructed a more realistic assessment of the cost burden associated with DHS’s Personnel Surety Program

which is presented in Table 1. This estimate uses the same assumptions as the DHS ICR cost burden estimate, such 

as time per submission (0.54 hours) and hourly wage rate ($42.00), but reflects the expanded number of data 

submissions to DHS to include visitors, update notifications, and resubmissions. Details on the assumptions are 

presented in the appendix tables.

Employees/Resident Contractors

Because not all employees/resident contractors at chemical facilities has access to restricted areas or critical assets, ACC estimates that the number of initial submissions for its employees and resident contractors will be 2.3

million during the first year, assuming that 80% of employees/resident contractors at high-risk facilities (15% for 

theft/diversion facilities) have access to restricted areas and/or critical assets and are thus screened against the 

TSDB. This includes an estimate of 20% employee/resident contractor turnover that was used in the CFATS Regulatory Assessment. In subsequent years, 0.4 million submissions will be required based on turnover.

 

2

As the base for the affected population, DHS starts with the estimated number of employees/resident contractors from the CFATS Regulatory Assessment (1 April 2007) Table 15. This population includes only personnel 

(whether direct employees or resident contractors) on site on a daily basis. It does not include visitors, such as 

transportation workers, vendors, corporate auditors, and other personnel that may need to be on site one or more 

times during the course of a year who have already been vetted. 
3

Visitors

Based on information provided by ACC members, the average number of visitors at each chemical facility during 

the course of a year ranges from 25 per year at theft/diversion only facilities (Group D) to 1,200 per year for large 

open manufacturing (Group A) facilities. ACC assumes that half of the visitors are infrequent visitors and half are 

regular visitors. ACC assumes that infrequent visitors turnover at a 20% rate, the same for employees and resident 

contractors. ACC members report much higher turnover of regular visitors, however. As a result, visitor turnover is 

estimated to be 5% per month which, via compounding, yields a 71% turnover rate annually. ACC estimates that 

7.2 million submissions will be required in the first year for all visitors, including turnover, and 2.3 million submissions in subsequent years to reflect turnover. 

Update Notifications

Based on the turnover of employees/resident contractors and visitors, an additional 2.6 million update submissions (due to turnover) will be required each year to notify DHS when these individuals no longer have access to 

restricted areas or critical assets.

Resubmissions and Clarifications

It is reasonable to assume that 5% of submissions will result in the need to go back to correct an entry and/or 

gather additional information or resubmission because of an error in transmission. This yields an additional 0.6

million submissions during the first year and 0.3 million in subsequent years. 

Thus, the burden of submitting personal information to DHS totals 12.8 million submissions in the first year and 5.5

million in subsequent years. 

COST OF THE PSP PAPERWORK BURDEN

DHS implies that the “total time, effort, or financial resources expended by persons to generate, maintain, retain, 

disclose, or provide information to or for a Federal agency” amounts to 0.54 hours (32.4 minutes) per submission. 

Though the details of DHS’s estimate of the time to conduct a submission are not presented, ACC assumes the estimate represents the average time for an administrative worker to collect, retain, and transmit data to DHS. Based 

on comments, DHS has halved the loaded average hourly wage rate to $42.00 to reflect an hourly wage of $30.00

plus 40% for benefits. Using the Department’s updated wage rate, the cost of data submissions totals $289.4 million in the first year and $125.8 million in subsequent years. On a discounted annualized basis, the program will 

cost $171.5 million annually over 3 years using a 7% discount rate.

Table 1 – Cost of DHS Personnel Surety Program (PSP) over 3 Years

Year 1 Year 2 Year 3

Employees/ Resident Contractors 2,289,220 381,537 381,537

Visitors 7,223,762 2,258,977 2,258,977

Updates 2,640,514 2,640,514 2,640,514

Resubmissions (5%) 607,675 264,051 264,051

 Total submissions to DHS 12,761,171 5,545,079 5,545,079

Hours per submission (DHS) 0.54 0.54 0.54

Total hours for PSP 6,891,032 2,994,343 2,994,343

Hourly loaded wage $42.00 $42.00 $42.00

Cost of PSP $289,423,353 $125,762,392 $125,762,392

Discount Factor (7%) 0.97 0.94 0.92

Discounted Cost of PSP (at 7%) $280,993,547 $118,543,116 $115,090,404

Total cost over 3 years $514,627,068

Discounted annual cost $171,542,356
4

SIGNIFICANT ADDITIONAL COSTS NOT INCLUDED 

Because the cost estimate of this ICR relates to the paperwork costs, neither DHS nor ACC has estimated significant 

additional costs to develop and maintain the PSP at chemical facilities. These costs include:

 Capital costs for computer, telecommunications equipment, software and/or secure paper file storage 

that would be necessary to securely manage the data collection, submission, and tracking required. 

 Ongoing costs such as, internet connectivity, supplies, signs, etc.

 Time of IT personnel and others to design and deploy such a system or to maintain this system over the 

years. 

 Training of facility personnel tasked with implementing the PSP

 SSO time to manage the PSP at his/her facility (based on the wage rate used in the DHS analysis)

Opportunity Costs for Multiple Submissions

An additional cost area not considered is the opportunity cost for visitors, many of whom will visit multiple facility 

sites during a given year, to submit their personal information at each CFATS facility they visit. While DHS responded that each individual would be screened only once, a significant burden remains. Each visitor would still be required submit their personal information (or proof of active TSDB screening) to facilities for transmission to DHS. 

This is especially the case for transportation workers (who may have already been run through the TSDB if they 

have a TWIC or HME credential). But also, corporate managers, vendors, maintenance crews, etc. will be required 

to submit information multiple times.

SUMMARY

After accounting for visitors, turnover, update submissions, and resubmissions when errors occur, the paperwork 

burden of DHS’s Personnel Surety Program goes well beyond the Department’s initial estimate. This does not even 

include the significant additional costs such as building a system to store and track data, providing training for 

submitters, managing the PSP. Nor does DHS consider the opportunity cost of visitors to provide information at 

multiple facilities. ACC’s alternative estimate uses broad and relatively conservative assumptions on the number of 

visitors provided by member companies. Further research from a pilot program may yield additional information 

about the number of submissions required to comply with DHS’s personnel surety program.

ACC Economics & Statistics Department

July 2011
5

APPENDIX TABLES

Appendix Table 1 - Number of Employees/Contractors Initially Screened

Base Employees/ 

Resident Contractors

(excl. turnover)

Percentage 

with Access 

Employees/ Resident 

Contractors Screened

Annual Turnover

of Screened

Individuals (20%)

Total Employees/ 

Resident Contractors 

(Year 1)

Large Open Manufacturing 1,948,653 80% 1,558,922 311,784 1,870,706 

Small Open Manufacturing 145,777 80% 116,621 23,324 139,946 

Enclosed Manufacturing 276,347 80% 221,077 44,215 265,293 

Theft/Diversion only 73,752 15% 11,063 2,213 13,275 

 Total 2,444,528 n/a 1,907,683 381,537 2,289,220 

Appendix Table 2 - Number of Unescorted Visitors with Access to Restricted Areas or Critical Assets Initially Screened

Infrequent Visitors Regular Visitors All Visitors

Number of 

Facilities

Average 

number 

per facility

20% Turnover 

(Years 2-3)

Total Submitted (incl. 

turnover)

(Year 1)

Average 

number 

per 

facility

71% turnover of regular visitors 

(Years 2-3)

Total Submitted (incl. 

turnover) 

(Year 1)

Total Submitted 

(incl. turnover) 

(Year 1)

Total Submitted 

(Years 2-3)

Large Open Manufacturing 3,481 600 417,673 2,506,041 600 1,482,741 3,571,108 6,077,149 1,900,414

Small Open Manufacturing 1,281 150 38,430 230,580 150 136,427 328,577 559,157 174,857

Enclosed Manufacturing 1,032 150 30,960 185,760 150 109,908 264,708 450,468 140,868

Theft/Diversion only 1,883 25 9,415 56,490 25 33,423 80,498 136,988 42,838

 Total 7,677 n/a 496,478 2,978,871 n/a 1,762,499 4,244,891 7,223,762 2,258,977
6

Appendix Table 3 - Number of Update Submissions to Notify DHS When Individuals No Longer Have Access to Restricted Areas/Critical Assets

Number of 

Facilities

Employee/ 

Contractor 

Turnover 

Infrequent

Visitor 

Turnover

Regular 

Visitor 

Turnover

Total Update

Submissions

Large Open Manufacturing 3,481 311,784 417,673 1,482,741 2,212,199

Small Open Manufacturing 1,281 23,324 38,430 136,427 198,181

Enclosed Manufacturing 1,032 44,215 30,960 109,908 185,083

Theft/Diversion only 1,883 2,213 9,415 33,423 45,051

 Total 7,677 381,537 496,478 1,762,499 2,640,514

Appendix Table 4 – Increase in Group A Facilities and Employees/Resident Contractors

The table below shows how ACC estimated the increase in the number of Group A facilities and employees/resident contractors based on information provided in the Federal Register notice (FR 6/14/11, p. 34726) in response to comments that the department had underestimated the burden. DHS made two changes to the number of affected individuals: the 

first was to include turnover of the population in years 2 and 3. The second was an “order of magnitude” increase in the number of Group A facilities. DHS provided the annual average respondents for each of the changes allowing us to back-calculate the increase in Group A employees/resident contractors. Using the average number of employees/resident 

contractors per facility, the number of additional facilities was calculated.

Original

Incl. turnover in 

subsequent years

Incl. turnover and new 

Group A facilities

Base number of employees/resident contractors 885,910 885,910 2,444,438

20% turnover in Year 1 177,290 177,290 488,888

Total Year 1 1,063,200 1,063,200 2,933,325

Turnover Year 2 177,290 488,888

Turnover Year 3 177,290 488,888

Total Years 1-3 1,417,780 3,911,100

Annual (presented in Federal Register) 354,400 472,593 1,303,700

Increase in Group A employees/res. contractors 1,558,528

Ave. per Group A facility 582

Increase in Group A facilities 2,677

July 14, 2011

The Honorable Rand Beers

Under Secretary for National Protection and Programs

U.S. Department of Homeland Security

Washington, DC 20528

Re: CFATS Personnel Surety Program, Docket No. DHS-2009-0026

Dear Secretary Beers:

The U.S. Chamber of Commerce, the world’s largest business federation representing the

interests of more than three million businesses and organizations of every size, sector, and

region, writes to thank the Department of Homeland Security (DHS) for collecting public

comments on the proposed Chemical Facilities Anti-Terrorism Standards (CFATS) Personnel

Surety Program.1The Chamber’s ongoing concerns relating to the Personnel Surety Program

follow below.

A. Minimizing Redundant Background Checks

The Chamber recognizes that an appropriate and effective personnel surety program is

essential for employees and contractors at our nation’s high-risk chemical facilities. We

vigorously support partnering with government officials to identify individuals with ties to

terrorism who may seek to do our communities harm. However, the Chamber is concerned that

the Personnel Surety Program is more prescriptive than the CFATS interim final rule intended.

Under the CFATS Personnel Surety Program, “affected individuals” — i.e., facility

personnel and unescorted visitors — who have or are seeking access to restricted areas or critical

assets of a facility must be vetted against the Terrorist Screening Database (TSDB). In a letter

submitted to DHS in May 2010, the Chamber stated that performing a battery of background

checks on affected individuals will be unnecessarily burdensome and costly for businesses. The

Chamber has argued that there are already several federal screening programs in place — TWIC

is often cited as a prime example — that satisfy any personnel surety program requiring a TSDB

check. DHS suggests in its June 14, 2011 Information Collection Request that the Personnel

Surety Program “will require only the minimum information necessary to verify affected

1

http://www.gpo.gov/fdsys/pkg/FR-2011-06-14/pdf/2011-14382.pdf
2

individuals’ enrollments in the TWIC, HME, NEXUS, SENTRI, and FAST programs” (FR

34724).

However, a dominant impression of industry is that the Personnel Surety Program is

quickly becoming overly prescriptive and that facilities in practice will have to provide

background-check information exceeding “minimal” requirements. While DHS intent to solicit

as little information as necessary to verify enrollment in a DHS screening program is good,

recent efforts have diminished the principle of reciprocity. The Chamber believes the

Department should weave greater reciprocity between or among credentials to reduce

redundancy and leverage existing investments in personnel screening.

B. Notifying Facilities of TSDB Matches

DHS states that it “will not routinely notify high-risk chemical facilities of CFATS

Personnel Surety Program vetting results.” Instead, the Department will “coordinate with federal

law enforcement entities” to monitor and/or prevent situations in which known or suspected

terrorists have access to high-risk chemical facilities. This position is consistent with DHS’s

April 13, 2010, notice in the Federal Register (FR). However, the Chamber continues to believe

that a process must be created so that owners and operators can be voluntarily notified when

there is a positive match to an identity in the TSDB.

C. Reducing the Burdens of Information Collection and Submission

The potential burdens placed on facilities to collect an array of individuals’ personal

information and submit it to DHS make compliance with the Personnel Surety Program possibly

unworkable. For example —

 The Department is considering whether to establish that facilities be required to submit

information to DHS at least 48 hours prior to access to restricted areas or critical assets.

The Department may, on a case-by-case basis, allow for variances from the reporting

schedule (FR 34724). The yardsticks by which each case may be judged are unclear.

 DHS will allow facilities to designate third-party individuals to submit TSDB screening

information (FR 34727). However, it is unlikely that many owners and operators will be

willing to contract out this responsibility, with internal security being just one of several

considerations.

 The Department indicates that if a networked computer system is listed as a restricted

area or critical asset in an approved Site Security Plan, then individuals with access to

that networked computer system would be considered affected individuals (FR 34728-

29). This interpretation by DHS could quite possibly usher in a significant reporting

requirement for a facility’s cyber personnel who may be located in the United States and

in other countries.

 DHS should consider eliminating the requirement that facilities notify Department

officials when affected individuals no longer have access to a facility’s vital areas and
3

assets. This “final” reporting burden comes on top of already recurrent vetting and

reporting when an affected person’s information has changed (FR 34728-30).

 DHS will require facilities to inform affected individuals of their rights under the Privacy

Act of 1974 before their information is submitted to DHS (FR 34730). Such a move will

require a new administrative procedure to notify and collect the signatures of affected

individuals and a new system for record retention.

DHS should conduct a rigorous pilot of the Personnel Surety Program to assess the

policies it intends for facilities to implement — paying close attention to the views and concerns

of owners and operators along the way — before rolling it out more broadly. One of the main

reasons that the CFATS program has been so successful is that it balances DHS’s security

priorities and the business and economic realities faced by owners and operators throughout the

industry. CFATS allows for appropriate security measures in a business-conscious environment.

However, as currently outlined, the Department’s Personnel Surety Program disrupts this balance

and places undue burdens and redundancies on private industry that, if left unchanged, may

undermine or stress the successful partnership we have established through the Department’s

public-private partnership model.

The Chamber appreciates the opportunity to present its view on the CFATS Personnel

Surety Program. While the Chamber has serious concerns with a number of the program’s

components, the Chamber applauds your efforts to address the nation’s chemical security, and

we look forward to working with you and your DHS colleagues on this important issue. Please

let me know if you have any questions. Thank you.

Sincerely,

Ann Beauchesne
1 | Page

July 14, 2011

National Protection and Programs Directorate

Office of Infrastructure Protection

Infrastructure Compliance Division

Department of Homeland Security

Re: Shell Oil Comments on Docket No. DHS-2009-0026 / ICR Reference No. 201105-1670-002

Shell Oil Company appreciates the opportunity to provide its position on the “Submission of Chemical 

Facility Anti-Terrorism Standards Personnel Surety Program Information Collection” Notice (75 FR 

18850, April 13, 2010). 

As the owner and operator of critical infrastructure facilities in the United States, Shell Oil Company has 

a substantial interest in the development and implementation of a Personnel Surety Program (PSP) that 

is effective in screening personnel granted access to our sites. Like DHS, we believe in a common goal of 

protecting the public, our personnel, our operations and national security from harm. To that end we 

fully support a well-designed and administered PSP and applaud DHS for taking the lead in attempting to 

develop such. 

However, after several years of meetings and discussions we remain highly concerned that a number of 

measures proposed by DHS do not facilitate the implementation of an effective PSP. Rather, some 

measures will impose unnecessary manpower and economic burdens on both industry and DHS, as well 

as the duplication of efforts without a commensurate enhancement of security. 

Shell Oil, through its relationship with the American Petroleum Institute (API), National Petrochemical 

and Refiners Association (NPRA) and the American Chemistry Council (ACC), has been and remains a 

member of the Chemical and Oil and Natural Gas Sector Coordinating Councils. As such we have 

reviewed and fully support the comments previously submitted on behalf of API, NPRA, and ACC 

regarding the proposed PSP. We encourage DHS to carefully re-consider those comments as they 

continue to have applicability to the PSP process. 

As an owner and operator of critical infrastructure facilities we feel compelled to again bring to DHS’

attention the potentially burdensome and ineffective aspects of the proposed measures. These include:
2 | Page

1. Issue: Submission of Personal Identifying Data on US Government credential holders. For 

those affected persons who have already completed a successful government background check 

and hold an approved US Government credential (such as a TWIC, HME, NEXUS, SENTRI and 

FAST) the Full Name, Date of Birth, Credential Number and Credential Expiration Date must be 

submitted. For those who possess a commercial driver’s license with the Hazardous Materials 

Endorsement (HME) the State of Issue must also be submitted. 

Comment: The credentials identified above require a check against the Terrorist Screening 

Database (TSBD). While we appreciate the fact that DHS will “accept” these credentials, the

requirement to submit PII on credential holders who are already in the system is unnecessary 

duplication that adds additional manpower, paperwork, and cost to the program with no added 

value. DHS justifies this measure by stating that the submission of additional data on credential 

holders is necessary to “verify” that the credential is valid. We find it ironic that DHS would 

trust regulated sites to submit PII, but would not trust sites to verify the authenticity of such 

credential; something our sites are well capable of doing. 

We strongly recommend that DHS refrain from requiring the submission of additional PII on 

those persons already holding an approved US Government credential. Requiring such will 

substantially slow work operations, delay authorized access to sites, require greater staff 

resources, add unnecessary costs and strain federal resources; all with no discernible 

improvement in security.

2. Issue: 48 Hour Advance Notice of Entry. DHS is “considering” whether to require submission of 

PII at least 48 hours prior to access to restricted areas or critical assets. 

Comment: The requirement to provide 48-hour advance notice for persons entering a 

regulated site is simply not workable. We know of no other industry or business that imposes, 

or can even operate under, a requirement that mail and courier workers, delivery personnel, 

commercial truck drivers, vendors, contractors, customers and visitors give 48-hours notice of 

their arrival. Such advance notice is not even required by the airlines, an industry well-known to 

be a much higher risk than chemical or oil and natural gas. Even today one can simply walk-up 

to an airline counter, purchase a ticket, and board a plane shortly thereafter for virtually any 

destination desired. 

Advance notice in our facilities will cause significant and unnecessary delays in both routine and 

emergency work requirements. It will also greatly increase the manpower and paperwork 

requirements to ensure compliance; an estimate of cost which has not been considered by DHS. 

Frankly, we see no value what-so-ever in requiring advance notice; particularly when all persons

requesting access to our sites, even those that show-up unannounced, are now properly vetted 

prior to entry and their movements closely controlled and monitored while on site. DHS should 

not impose a 48-hour advance notice requirement on regulated sites. 
3 | Page

3. Issue: Third-Party Submission of PII permitted. DHS states that each facility may identify thirdparty “individuals” to submit PII data in their behalf. However, this is a hollow concession to 

previous industry concerns on this issue since a facility is limited to designating only one (1) 

submitter in the CSAT (Chemical Security Assessment Tool). This limitation of one submitter 

requires that:

 a company employee be designated to submit data for all employees, contractors, 

visitors, etc., or

 a third-party be designated to submit data on all the above, including company 

employees. 

Comment: With either above option, the fact that a facility is limited to one submitter makes 

this an all or nothing proposition. In consideration of our employee’s privacy, we find the idea 

of releasing our employee’s PII to a third party for submission to DHS unacceptable. We 

strongly recommend that DHS allow facilities to designate multiple submitters who have been 

screened and designated as “trusted agents.” 

We also request that DHS clarify what they mean by third-party “individuals.” Does this mean a 

single individual must be designated as a submitter, or may a “company” or entity be 

designated? We would hope that a third-party submitter is not limited to a single individual 

within an organization. 

4. Issue: Emergency Responders as Affected Individuals. DHS states “emergency responders at 

the state or local level that gain unescorted access to restricted areas or critical assets during 

emergency situations are not affected individuals.”

Comment: While we agree that exemption of state and local emergency responders is 

warranted, we are highly concerned that the proposed rule does not exempt responders who 

are members of mutual aid organizations and oil spill response organizations (OSROs). The use 

of mutual aid groups and OSROs in our industry is essential to the safety of the public as well as 

our facilities and personnel as they are often the first and primary responders, even before local 

or state agencies. We strongly recommend that DHS identify responders from these 

organizations as not affected individuals and exempt them from these requirements. 

5. Issue: Lack of Notification to Facilities on TSBD matches. DHS states that it “will not routinely 

notify high-risk chemical facilities of CFATS Personnel Surety Program vetting results.” Rather, 

DHS intends to “coordinate with federal law enforcement entities” to investigate and follow-up.

Comment: While we fully understand and appreciate the confidentiality required in a law 

enforcement investigation, we find it incomprehensible that the owner and/or operator of a 

high-risk site would not be notified by DHS of a potential threat at the earliest possible moment. 

The facility owner and/or operator is the ONLY entity positioned to take immediate and 

appropriate security measures in response to a TSDB match. We simply do not understand why 
4 | Page

DHS would exacerbate a risk by permitting an individual on the TSDB to remain in a regulated 

site for an indeterminate period once DHS has identified them. It is strongly recommended DHS 

reconsider this policy and develop a process that provides for the timely notification of both law 

enforcement AND a designated facility owner/operator representative if a person to whom a 

facility has granted access is identified on the TSBD. 

6. Issue: Submission of PII Changes Required. DHS proposes to require regulated sites to resubmit PII when an affected individual’s PII changes. 

Comment: We do not believe that DHS has considered the burden this requirement will place 

on regulated sites and we certainly feel they provided an inadequate response in explaining 

their justification for such a measure. Re-submitting PII on company employees will be 

burdensome but likely could be managed. However, tracking PII changes for contractor 

employees, customers, visitors, etc. is completely unworkable. At present there are no 

processes in place to accomplish this and we do not feel DHS has done an assessment of the 

manpower or economic burden this would impose. 

We also must raise the question as to how DHS proposes to manage the reporting of PII changes 

on those individuals whose jobs require them to access multiple regulated sites over short 

periods of time (such a courier or commercial delivery driver). Just how many times must 

changes in PII be reported to DHS, and by how many different sites? We recommend DHS 

eliminate this overly burdensome requirement that adds little value to the facility security 

program. 

7. Issue: Tracking of Individuals. DHS states “DHS has no intention to and will not track the 

movement of affected individuals between and among high-risk chemical facilities,“ but “the 

Department will associate an affected individual with the high-risk chemical facility (or facilities) 

for which the high-risk chemical facility submitter providing that affected individual’s 

information into CSAT is responsible.”

Comment: Industry has long-objected to DHS’ earlier statements in industry meetings that the 

PSP program might be used to facilitate the tracking of individuals from site to site and DHS, in 

response to industry concerns, has stated they no longer intend to use the PSP in this manner. 

However, in the recent Chemical Security Summit held in Baltimore, MD during the week of July 

5, a DHS official was overheard by several industry representatives stating that DHS does now 

intend to track individuals via the PSP. This comment, along with the ambiguous statement that 

DHS “will associate an affected individual with the high-risk chemical facility (or facilities)” 

suggests that DHS may be less than transparent with industry in its intended use of the PSP. 

Consequently, while DHS states in this notice that tracking of individuals is not in scope for the 

PSP, we wish to go on record that we have strong objection to the use of the PSP in this manner 
5 | Page

and believe doing so far exceeds the DHS’ authority and their stated goal of identifying persons 

on the TSDB. 

8. Issue: Estimate of Burden. Based on the information provided in the notice, DHS has 

significantly underestimated the cost burden on industry.

Comment: The estimate of the cost burden provided in the ICR ($17.7 million annualized over 

three years) is based only on the estimated population of employees and contractors that will 

be impacted. This estimate does not include a number of relevant factors including, but not 

limited to, the large numbers of vendors, visitors, delivery/service personnel, or corporate 

support staff who will be required to access the sites repeatedly during a given year. 

Additionally the estimate does not consider turnover of affected personnel or the administrative 

costs associated with developing and maintaining the systems necessary to manage a PSP. 

We refer DHS to the American Chemistry Council’s (ACC’s) “Updated Cost Burden Estimate for 

DHS Personnel Surety Program”, dated July 2011, and submitted with their comments regarding 

this notice. We fully support ACC’s estimate that the burden is closer to $29.7 million dollars, 

up $12 million dollars from DHS’ April 2010 estimate. 

As a final and over-arching comment we would like to express our concern that DHS is attempting to 

implement a PSP by issuing these requirements in the form of an Information Collection Request (ICR). 

We believe implementing regulatory requirements via the use of an ICR is improper as it does not 

guarantee all of the process protections available under notice and comment rulemaking pursuant to 

the Administrative Procedures Act (APA). Additionally, it sets a disturbing precedent and goes to the 

heart of transparency, or lack thereof, with industry. 

We are also concerned that in the three (3) previous Federal Register notices DHS has failed to invite

affected parties submit comments directly to the Office of Management and Budget (OMB) thereby bypassing the important review normally performed by OMB . 

Shell Oil Company would like to reiterate that we fully support DHS’s efforts to implement a PSP. 

However, like DHS our industry has limited resources. It is essential for both of us to allocate our 

resources wisely based on the risks we face, and to ensure the security programs we implement are 

done so in the most effective manner possible. 

In closing, we implore DHS to reevaluate this proposal in light of the comments we have made herein, as 

well as the comments provided by the many other stakeholders who have a vested interest in making 

the PSP program work right the first time. 

We also request DHS’ honor its previous commitment to conduct a pilot program that would allow the 

testing of these requirements before the program is rolled out. It will be far easier to make program 

changes in a pilot program conducted before the final rules are set, than to change requirements after. 
6 | Page

Thank you for your consideration and the opportunity to comment.

Sincerely,

Robert F. Ream

Robert F. Ream

Regional Security Manager, Americas
JUL-21-2011 11:51 

loannis Constantinides 

177 Wyoming Woods Lane, Wyoming, Ohio 45215 

July 9, 2011 

Mary Ellen Callahan, Chief Privacy Officer 

Department of Homeland Security 

Washington, DC 20528 

Dear Ms. Callahan, 

Ref: Comments on Docket No DHS-2011- 0033 Related to Chemical 

Facility Anti-T\2rrorism Standards Personnel Surety Program 

I am glad to provide comments on the proposed rule by the Department of 

Homeland Security on ·Chemical Facility Anti-Terrorism Standards Personnel 

Surety Program, Docket No DHS-2011-0033"1,2 and I greatly appreciate the 

opportunity hoping that my comments will improve the proposed rule further. 

P.002 

I strongly support the efforts of DHS to improve security of high-risk chemical 

facilities against terrorist acts. Creation and maintenance of reduced risk 

environments via a proactive mindset should be one of our most important goals 

and a critical element to the continuing success of the chemical industry.3 I 

agree that an effective and efficient system must be established in order to 

_ . __ ,, ____ , __ pe,rformte.n:orist ba,*ground chE\CksOofacility:.personnel as wen.unescorted 

visitors with access to restricted areas or critical assets of each facility. It would 

be disastrous to allow individuals with known terrorist ties to approach high.risk 

chemical facilities and restricted areas of critical assets. However, I have a few 

concerns about the proposed rule, which focus on three areas: 

'. 76 FR §114 (2011). 

2, Authorized by Department of Homeland Security Appropriation Act, Pub. I.. No. 1()9..295, §550 (2007). 

" J.S. Arendt, "Quantitative Risk ASsessment in the Chemical Pro<::e$$lndu$lty", Reliability Engineering & 

System Safety 1990. 29(1), 133-149. 

1 
JUL-21-2011 11:52 P.003 

""""''''-,-, -'''~.'''' -~-.. :", .,. 

(a) The cumbersome and potentially time-consuming proposed procedure in 

obtaining personnel clearance. 

(b) The wide scope of the information required for continuous updates. 

(c) The duplication that will result from the rule and previous administrative rules 

having similar objectives. 

I will separately discuss these three areas below. 

a. Process of l!litiation of Backgroynd Checks and Personnel Clearance 

·····One-of th~~Ostcritic;at'~lem~n-;:that-e;abi~ the US chemical industry to survive 

international competition and thrive in the global market is its ability to deliver 

products of superior quality and performance with the lowest possible 

environmental risk and maximum efficiency.4 Maximum utilization of capital 

equipment and Just·in-Time inventories are indispensible for the industry.5 The 

management systems that are used for the supply chains, manufacturing and 

product delivery are sophisticated and complex and they are based on long 

experience, continuous improvement and expertise. Even modest delays in the 

personnel security clearing system may cause severe inefficiencies of the 

operations and may jeopardize the global viability of the industry. My concern is 

that the DHS proposed procedure of obtaining personnel and visitor clearance, 

consisting of multiple steps 1 (outlined below) and involving multiple government 

agencies, will be unrealistically time consuming. In addition, it will cause 

undesirable loss of effiCiency and well-needed flexibility to chemical production 

facilities. 

1. Submission of information by chemical facilities to Department of 

Homeland Security (DHS)/National Protection and Program Directorate (NPPD) 

via the "Chemical Security Assessment Tool" (CSAT), an online data collection 

.. ·--··-----"PortaI:'Theinformation-isrelated10facititrp'ersdnn~r( or'unesccirted Visifors),-' - -.-- _. . 

who have or are seeking access to restricted areas of critical assets. A new 

submission is required for additional, updated, or corrected information about the 

affected individual and also for individuals whose information was submitted 

earlier, but no longer seek access to the facility's restricted area or critical assets. 

'. A.J Hoffman. "ln$tiMlonal Evolution and Change: EnVironmentalism and the US Chemical Industry" • 

Academy of Management J. 1999,42(4),351-371. 

o. A.F. Ab\l-AI, e. Ghorashl, • Applications of Just-In-11me Principles to the Chemical Industry'. Technology 

lind InnOlllltion Conference PICMET. 1999. p. 371-372. 

2 
JUL-21-2011 11:52 

2. DHS will send a verification of receipt to the submitter (for each case 

mentioned above). 

3. A copy of the submission will be sent by DHS/NPPD to DHSrrSA 

(Transportation Security Administration), which owns the Terrorist Screening 

Database (TSDB). 

P.004 

4. DHSrrSA will compare the information submitted to information existing in 

TSDB and forward potential matches to Department of Justice (DOJ) I Federal 

Bureau of Investigation (FBI) I Terrorist Screening Center (TSC) for final 

determination and communicates back to the appropriate parties . 

.5_, ... --.DI:mJs .. authotized'.to,CO.Mu.ct.tarnion:u::lataaccuracy reviews and audits 

as part of this program. 

I am not particularly concerned with potential violations of privacy protection 

issues related to this program. This is because the information exchanges either 

comply with the Privacy Act or follow the corresponding lawful and reasonable 

exemptions provided in this case by the corresponding Department of Homeland 

Security Appropriation Act of 2007. 2 However, I believe that the process to be 

established by the proposed rule is very cumbersome and time consuming for 

the parties. It can be easily and significantly simplified without compromising its 

effectiveness for identifying individuals who represent risks for the critical areas 

of chemical facilities. 

Most probably there will be thousands of requests for personnel clearance every 

month including new facility personnel and visitors that will perform aU kind of 

functions in the critical areas of chemical facilities such as operators, truck 

drivers, maintenance workers, engineers, etc. From the thousands of requests 

for personnel clearance, only a few, if any, will require particular attention by the 

administrative authorities. For the great majority of the cases, a simplified routine 

... _ __,, ___ !I>.[P.Q!!.s.sJ;;f:!JJb.e._establi$be(l._w.bl!r.eJhe~Clearaoce, cao.be,achie.veci,aJroost ". ..-,-.. ----.. , •. 

instantaneous. Provided that the information supplied by the chemical facilities to 

the government is dependable, because its quality is assured by the 

establishment of random audits, and also assuming the accuracy of the Terrorist 

Screening Database, there is no need to have multiple contacts agencies 

handling the clearance. The chemical facility can submit personnel data directly 

to the DHSlTSA, which maintains the TSDB. It would be most efficient if the 

appropriate chemical facilities had limited but direct secure internet access to the 

database itself in order to receive instant and automatic response of positive or 

negative match of personnel information with the contents of the database. This 

will eliminate all the steps described by the proposed rule and the corresponding 

costs associated with the process, including the productivity losses of the 

chemical facility by waiting for clearance, Only in the case of positive risk 

3 
JUL-21-2011 11:53 

identification will the request then be elevated to government personnel from 

TSA, FBI, or other organization within DHS or DOJ. 

P.005 

Appropriate rules of access and routine monitoring of the use of the Terrorist 

Screening Database by govemment personnel can assure that the system is not 

abused by the private organizations in order to extract confidential information. If 

the only database access that the chemical facilities have is the occasional 

checking of new personnel, the integrity and confidentiality of the database is 

assured. If, for any unlawful reason, a person attempts to collect more extensive 

unneeded information that is present in the database by unusually numerous 

requests, the TSA monitoring personnel will be able to identify this activity and 

the person who violated the access rules. 

., .. ,_ ..• "'_""" A!te(l)l'Itiv:#y,lhe .chemicalJaciljty:. can.seod. the. relevant personneli information for 

clearance not to DHSINPPD but directly to TSA who handles the Terrorist 

Screening Database. The government employee who handles TD8 can then 

respond within minutes to the request providing clearance or, on rare occasions, 

elevate the inquiry to FBI personnel. Although less efficient than the process that 

allows database access to chemical facilities (see above), this procedure 

dramatically reduces cost and investigation time,important elements for the 

efficient function of government agencies and chemical facilities alike. More 

importantly, the personnel clearance process is as effective as the one proposed 

by the DHS rule and the security of critical facilities is not compromised. 

b. SCOM of Reg,uested Information b,y!he Government Ag.encies 

The Objective of the program, the details of which are proposed by thiS rule is to 

conduct background checks against the corresponding Terrorist Screening 

Database for personnel that will access the regulated facilities. However, the 

process for each clearance is not completed after the government agenCies 

provide the clearance. The process also includes updating of the information for 

each person even after the clearance is obtained. In addition, the chemical 

facilities are required to notify to DHS the individuals that no longer need access 

to the facility's restricted areas or critical assets . . ',--.....-, .... _',-"'",........, .... " ......... -,,----' .. ., ....... ,.... .. ,,_ .. '.~" ,,,.,,".- ............ --_ ............... ' .......... '" ....... ~~.-.,., ~ .. ,.,,',', ..... ,.~".'''.-- ....... , .. _ .... , .. , ---... -,---.,-,," 

I believe that the objective of the proposed rule and the corresponding statute is 

achieved by the initial investigation process in cases where the government 

assessed that the individual represents no security risk. Continuous update of the 

information as described above does not provide any value towards the 

expressed objectives of the program. Thus, updating of the information by the 

chemical facilities and sending of Verification letters by DHS does not serve any 

significant purpose. Given the expected high volume of request for clearance that 

will burden both the chemical facilities and the government agencies, such low 

value updating requirements can be eliminated without compromising facility and 

national security. 

4 
JUL-21-2011 11:53 P.006 

The above argument is further supported by the fact that the typical visitors of a 

chemical facility are truck drivers and other outside contractors, who are not part 

of the permanent personnel of the facility and who also visit multiple chemical 

sites frequently. It is not easy or even realistic for the management of any facility 

to continuously follow the information of these individuals, especially the ones 

who no longer have access to the facility. The rule as proposed by the agency 

will require multiple additions and removals of the same individuals from multiple 

sites each month, creating significant extra reporting work for the chemical 

facilities and duplicative screening and recording work for the agencies without 

the addition of much value in extra security against terrorism. 

Based on the above, I suggest limiting the reporting and screening work only to 

initial request for authorization and eliminating requirements for updates of 

"''':_'' ~.""' .persp~l)pformation aru:i.J:emo.vsls. '."_' 

c. EliminatiQn 2f DUBlicalive Credentials 

The proposed rule establishes a process for performing background checks for 

individuals who have or seek access to high-risk chemical facilities and critical 

assets. Only the individuals who receive clearance by the Department of 

Homeland Security can get access to these facilities. One of my concerns is the 

potential for duplicate of requests by the facilities as well as background checks 

by the Department of Homeland Security and other government agencies 

required by various administrative rules. More specifically, there are numerous 

regulations that require screening of various individuals against the terroristwatch list. My investigation indicated that it is possible to eliminate a great deal of 

duplicate work with a simple coordination effort between the different agencies 

and also between regulatory rules. 

Various existing regulations require background checks for various individuals 

which are equivalent to the background checks proposed by the ct:lrrent rule: 

·--·----""-·~TransportatlcinWorkers1crei1tifica'trorrC-redeiitralsFWIC)'~involVes'fr'iJCk "'. -.,."-, .. -~.--,­

drivers and maritime and port workers with access to vessels and maritime 

facilities.6 

2. Hazardous Materials Endorsement (HME) • involves individuals who transport 

hazardous materials.7 

". 72 FR 3492 (2007). 

7. 89 F'R 68720 (2004) 

5 
JUL-21-2011 11:64 

3. Explosive License - involves individuals who seek to obtain explosives 

license. 

P.OO? 

These categories involve hundreds of thousands of individuals who have already 

obtained credentials, many of them by the TSA of DHS. It is also highly probable 

that the same individuals, such as tl'1Jck drivers, who already possess TWIC 

and/or HME credentials, will be required to be cleared against the terrorist watch 

list by the same agency (TSA) in order to have access to high-risk chemical 

facilities (as part of the current proposed regulation). This is a duplication of a lot 

of work by chemical facilities and agencies incurring extra costs and burden 

without providing any additional value to national security. I suggest that TWIC, 

HME, explOSive and Firearm credential can be used as substitutes for a new ___'._ •• -.h ,_ ........ ··baCk9~ound check-requireme.nt-fOr,the proposed -rule, -preserving-cost and 

resources. 

Again, t appreciate the opportunity to provide comments on your Department 

about the proposed rule. Please free to contact me if you would like to discuss 

any relevant details. 

Sinperely ~ours,.. I, • 

I,,~s. C-.f .......... 11'-~ toannis Constantinides, Ph.D. 

Chemist 

. ", .. ~',-, .-, .. ,,,--.~----" ,~-,.,,,,,.,,.,, .. , .. ,' ... ' . , .• " -"~'-"" .... ,,-, ................. ~ . ...: ... ---

8. 27 CFR 555 (2003) 

6 

TOTAL P.007