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###### Department of Homeland Security

###### National Protection and Programs Directorate Office of Infrastructure Protection

          - [Docket No. DHS-2009-0026]

# 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.

# ADDRESSES:

                        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*.                    

# SUPPLEMENTARY INFORMATION:

## Program Description

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 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                           ( print page 27556)    **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 high-risk 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.

## 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 high-risk 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 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 high-risk 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.                

## Solicitation of Comments

### 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;

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.

### 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

High-risk chemical facilities as defined in 6 CFR Part 27, High-risk chemical facility personnel, and as appropriate, unescorted visitors with access to restricted areas or critical assets

## Number of Respondents

                    354,400 individuals                          ( print page 27557)    

## Estimated Time Per Respondent

0.59 hours (35.4 minutes)

## 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