[Federal Register Volume 69, Number 226 (Wednesday, November 24, 2004)]
[Rules and Regulations]
[Pages 68720-68749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26066]
[[Page 68719]]
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Part VIII
Department of Homeland Security
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Transportation Security Administration
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49 CFR Part 1572
Security Threat Assessment for Individuals Applying for a Hazardous
Materials Endorsement for a Commercial Driver's License; Final Rule
Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 /
Rules and Regulations
[[Page 68720]]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1572
[Docket No. TSA-2003-14610; Amendment No. 1572-4]
RIN 1652-AA17
Security Threat Assessment for Individuals Applying for a
Hazardous Materials Endorsement for a Commercial Driver's License
AGENCY: Transportation Security Administration (TSA), DHS.
ACTION: Interim final rule; request for comments.
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SUMMARY: TSA is amending standards relating to security threat
assessments of commercial truck drivers who are authorized to transport
hazardous materials. TSA is adding definitions, and making
organizational and substantive changes to the current standards
codified at 49 Code of Federal Regulations (CFR) part 1572. First, this
rule requires each State to declare whether it wishes to capture and
submit fingerprints, applicant information, and fees itself, or
alternatively chooses to have TSA complete those tasks. Second, TSA is
changing the standards to permit certain aliens who are qualified to
hold a commercial drivers license to apply for a security threat
assessment. Third, TSA is removing one felony offense, simple drug
possession, from the list of disqualifying crimes, and adding unlawful
purchase, receipt, transfer, shipping, transporting, import, export,
and storage of a firearm or explosives to the list. TSA is
reclassifying the criminal offense of arson as an interim rather than
permanent disqualifier, and reclassifying the offense of murder as a
permanent rather than an interim disqualifier. TSA now prohibits
individuals convicted of the most serious crimes, such as treason, from
applying for a waiver. TSA is increasing the response time limits for
appeals and waivers. TSA is changing the rule concerning transferring a
hazardous materials endorsement from one State to another so that
drivers do not have to undergo a new background check when obtaining a
license in a new State, subject to some restrictions. TSA is enhancing
the appeal procedures for an individual who is determined to pose a
security threat as a result of the intelligence-related check. The rule
moves the start date of the fingerprint-based checks for transfer and
renewal applicants to May 31, 2005. The rule no longer requires the
States to forward all driver applications to TSA, but the States must
retain the applications for one year. States that elect to collect
fingerprints and driver information must submit the information and
fingerprints electronically, with some initial assistance from TSA.
Finally, TSA is reducing the amount of advance notice the States must
provide to drivers who hold hazardous materials endorsements regarding
the need for a security threat assessment upon renewal. TSA is making
these changes in response to comments received from the affected
parties and to clarify further the implementation of this program.
DATES: Effective Date: This rule is effective November 24, 2004.
Comment Date: Submit comments by December 27, 2004.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, using any one of the following methods:
Comments Filed Electronically: You may submit comments through the
docket Web site at http://dms.dot.gov. Please be aware that anyone is
able to search the electronic form of all comments received into any of
our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review the applicable Privacy Act
Statement published in the Federal Register on April 11, 2000 (65 FR
19477), or you may visit http://dms.dot.gov.
You also may submit comments through the Federal eRulemaking portal
at http://www.regulations.gov.
Comments Submitted by Mail, Fax, or In Person: Address or deliver
your written, signed comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001; Fax: 202-493-2251.
Comments on Paperwork Collection: Comments may be faxed to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Attention: DHS-TSA Desk Officer, at (202) 395-5806. Comments
may be mailed to the Office of Information and Regulatory Affairs,
Office of Management and Budget, 725 17th Street, NW., Washington, DC
20503, Attention: DHS-TSA Desk Officer.
Declarations Submitted by the States: Address the State
Declarations required in Sec. 1572.13(f) to: Program Manager,
Credentialing Program Office, 601 S. 12th St., 8th floor, Arlington,
VA, 22202.
Reviewing Comments in the Docket: You may review the public docket
containing comments in person in the Dockets Office between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The Dockets
Office is located on the plaza level of the NASSIF Building at the
Department of Transportation address above. Also, you may review public
dockets on the Internet at http://dms.dot.gov.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: Kevin Johnson, Credentialing Program
Office, Transportation Security Administration HQ, East Building, 601
South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-2155;
e-mail [email protected].
Christine Beyer, Office of Chief Counsel, Transportation Security
Administration, HQ, East Tower, 601 South 12th St., Arlington, VA
22202-4220; 571-227-2657; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Comments Invited
This Interim Final Rule is being adopted without prior notice and
prior public comment. However, to the maximum extent possible, TSA
provides an opportunity for public comment on regulations issued
without prior notice. Accordingly, TSA invites interested persons to
participate in this rulemaking by submitting written comments, data, or
views. We also invite comments relating to the economic, environmental,
energy, or federalism impacts that might result from adopting the
requirements in this document. See ADDRESSES above for information on
where to submit comments.
With each comment, please include your name and address, identify
the docket number at the beginning of your comments, and give the
reason for each comment. The most helpful comments reference a specific
portion of the rule, explain the reason for any recommended change, and
include supporting data. You may submit comments and material
electronically, in person, by mail, or fax as provided under ADDRESSES,
but please submit your comments and material by only one means. If you
submit comments by mail or delivery, submit them in two copies, in an
unbound format, no larger than 8.5 by 11 inches, suitable for copying
and electronic filing.
If you want TSA to acknowledge receipt of your comments on this
rulemaking, include with your comments a self-addressed, stamped
postcard on which the docket number
[[Page 68721]]
appears. We will stamp the date on the postcard and mail it to you.
Except for comments containing confidential information and
Sensitive Security Information (SSI), we will file all comments we
receive in the public docket, as well as a report summarizing each
substantive public contact with TSA personnel concerning this
rulemaking. The docket is available for public inspection before and
after the comment closing date.
We will consider all comments we receive on or before the closing
date for comments. We will consider comments filed late to the extent
practicable. We may change this rulemaking in light of the comments we
receive.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) web page (http://dms.dot.gov/search);
(2) Accessing the Government Printing Office's web page at http://www.access.gpo.gov/su_docs/aces/aces140.html; or
(3) Visiting the TSA's Law and Policy web page at http://www.tsa.dot.gov/public/index.jsp.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small entity requests for information
and advice about compliance with statutes and regulations within TSA's
jurisdiction. Any small entity that has a question regarding this
document may contact the person listed in FOR FURTHER INFORMATION
CONTACT. Persons can obtain further information regarding SBREFA on the
Small Business Administration's web page at http://www.sba.gov/advo/laws/law_lib.html.
Abbreviations and Terms Used in This Document
ATSA--Aviation and Transportation Security Act
ATF--Bureau of Alcohol, Tobacco, Firearms, and Explosives
CDC--Centers for Disease Control and Prevention
CDL--Commercial drivers license
CDLIS--Commercial drivers license information system
CHRC--Criminal history records check
CJIS--Criminal Justice Information Services Division
DHS--Department of Homeland Security
DOJ--Department of Justice
DMV--Department of Motor Vehicles
DOT--Department of Transportation
FBI--Federal Bureau of Investigation
FMCSA--Federal Motor Carrier Safety Administration
HSA--Homeland Security Act
HME--Hazardous materials endorsement
HMR--Hazardous materials regulations
MTSA--Maritime Transportation Security Act
RSPA--Research and Special Programs Administration
SEA--Safe Explosives Act
TSA--Transportation Security Administration
USA PATRIOT Act--Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
I. Background
In response to the September 11 terrorist attacks on the United
States, Congress passed the Aviation and Transportation Security Act
(ATSA), which established the Transportation Security Administration
(TSA).\1\ TSA was created as an agency within the Department of
Transportation (DOT), operating under the direction of the Under
Secretary of Transportation for Security. Effective on March 1, 2003,
TSA became an agency of the Department of Homeland Security (DHS), and
the head of TSA is now the Assistant Secretary for Homeland Security,
Transportation Security Administration (Assistant Secretary).
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\1\ Pub. L. 107-71, November 19, 2001, 115 Stat. 597.
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On May 5, 2003, TSA published an interim final rule (May 5 IFR)
that requires a security threat assessment of commercial drivers who
are authorized to transport hazardous materials in commerce.\2\ The May
5 IFR implemented several statutory mandates discussed below, including
fingerprint-based criminal history records checks (CHRC), checks
against international databases, and appeal and waiver procedures. The
May 5 IFR required CHRC to begin no later than November 3, 2003.
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\2\ 68 FR 23852 (May 5, 2003).
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TSA requested and received comments from the States, labor
organizations, and representatives of the trucking industry. In
addition, TSA held working group sessions with the States to discuss
potential fingerprinting systems that would achieve the statutory
requirements, but would not adversely impact the States. Based on the
comments received and our working sessions with the States, TSA issued
a technical amendment in November 2003 \3\ to extend the date on which
submission of fingerprints and applicant information would begin to be
required. The reasons for the amendment were that a majority of the
States could not implement the program by November and TSA did not have
authority to collect fees to cover TSA's implementation costs. The
amendment required the States to submit fingerprints and applicant
information by April 1, 2004, or request an extension of time and
produce a fingerprint collection plan by April 1, 2004. All States were
required to have the fingerprint collection program in place as of
December 1, 2004.
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\3\ 68 FR 63033 (November 7, 2003).
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In response to the November 2003 technical amendment, a majority of
the States asked for an additional extension of time because they could
not begin collecting applicant information or fingerprints by the
extended deadline of April 1, 2004. Therefore, on April 6, 2004, TSA
published a final rule removing the April 1 date and establishing
January 31, 2005, as the date on which CHRC must begin.\4\ The Interim
Final Rule we publish today reorganizes, clarifies, and adds operating
details to the hazmat program.
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\4\ 69 FR 17696 (April 6, 2004).
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In October 2003, legislation was enacted that authorized TSA to
collect user fees to cover the cost of each security threat
assessment.\5\ Pursuant to this legislation, TSA on November 10, 2004
(69 FR 65332), published a notice of proposed rulemaking (NPRM) to
establish reasonable fees for the threat assessment process. TSA plans
to have the implementation of the hazmat security threat assessment
program coincide with our ability to collect fees.
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\5\ Department of Homeland Security Appropriations Act, 2004,
Section 520, Pub. L. 108-90, October 1, 2003, 117 Stat. 1137.
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II. USA PATRIOT Act
The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT
Act) was enacted on October 25, 2001.\6\ Section 1012 of the USA
PATRIOT Act amended 49 U.S.C. Chapter 51 by adding a new section 5103a
titled ``Limitation on issuance of hazmat licenses.'' Section
5103a(a)(1) provides:
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\6\ Pub. L. 107-56, October 25, 2001, 115 Stat. 272.
A State may not issue to any individual a license to operate a
motor vehicle transporting in commerce a hazardous material unless
the Secretary of Transportation has first determined, upon
[[Page 68722]]
receipt of a notification under subsection (c)(1)(B), that the
individual does not pose a security risk warranting denial of the
license.\7\
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\7\ The Secretary of Transportation delegated the authority to
carry out the provisions of this section to the Under Secretary of
Transportation for Security/Assistant Secretary. 68 FR 10988, March
7, 2003.
Section 5103a(a)(2) subjects license renewals to the same
requirements.
Section 5103a(c) requires the Attorney General, upon the request of
a State in connection with issuance of an HME, to carry out a
background records check of the individual applying for the endorsement
and, upon completing the check, to notify the Secretary (as delegated
to the Assistant Secretary) of the results. The Secretary then
determines whether the individual poses a security risk warranting
denial of the endorsement. The security threat assessment must consist
of: (1) A check of the relevant criminal history databases; (2) in the
case of an alien, a check of the relevant databases to determine the
status of the alien under U.S. immigration laws; and (3) as
appropriate, a check of the relevant international databases through
Interpol-U.S. National Central Bureau or other appropriate means.
III. Safe Explosives Act
Congress enacted the Safe Explosives Act (SEA) on November 25,
2002.\8\ Sections 1121-23 of the SEA amended section 842(i) of title
18, United States Code, by adding several categories to the list of
persons who may not lawfully ``ship or transport any explosive in or
affecting interstate or foreign commerce'' or ``receive or possess any
explosive which has been shipped or transported in or affecting
interstate or foreign commerce.'' Prior to the amendment, 18 U.S.C.
842(i) prohibited the transportation of explosives by any person under
indictment for or convicted of a felony, a fugitive from justice, an
unlawful user or addict of any controlled substance, and any person who
had been adjudicated as lacking mental capacity \9\ or committed to a
mental institution. The 2002 amendment added three new categories to
the list of prohibited persons: aliens, with certain exceptions;\10\
persons dishonorably discharged from the armed forces; and former U.S.
citizens who have renounced their citizenship. Individuals who violate
18 U.S.C. 842(i) are subject to criminal prosecution.\11\ These
incidents are investigated by the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF) of the Department of Justice and referred, as
appropriate, to the United States Attorneys.
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\8\ Pub. L. 107-296, November 25, 2002, 116 Stat. 2280.
\9\ Since 1970, the Federal explosives law has identified a
category of persons prohibited from possessing explosives as
``adjudicated as a mental defective.'' TSA is replacing this term
with ``adjudicated as lacking mental capacity.'' However, these
terms have the same meaning for the purposes of the Federal
explosives law and the TSA hazmat requirements.
\10\ The prohibition in the SEA extends to each person--
(5) Who is an alien, other than an alien who--
(A) Is lawfully admitted for permanent residence (as that term
is defined in section 101(a)(20) of the Immigration and Nationality
Act); or
(B) Is in lawful nonimmigrant status, is a refugee admitted
under section 207 of the Immigration and Nationality Act (8 U.S.C.
1157), or is in asylum status under section 208 of the Immigration
and Nationality Act (8 U.S.C. 1158), and--
(i) Is a foreign law enforcement officer of a friendly foreign
government, as determined by the Secretary in consultation with the
Secretary of State, entering the United States on official law
enforcement business, and the shipping, transporting, possession, or
receipt of explosive materials is in furtherance of this official
law enforcement business; or
(ii) Is a person having the power to direct or cause the
direction of the management and policies of a corporation,
partnership, or association licensed pursuant to section 843(a), and
the shipping, transporting, possession, or receipt of explosive
materials is in furtherance of such power;
(C) Is a member of a North Atlantic Treaty Organization (NATO)
or other friendly foreign military force, as determined by the
Attorney General in consultation with the Secretary of Defense, who
is present in the United States under military orders for training
or other military purpose authorized by the United States and the
shipping, transporting, possession, or receipt of explosive
materials in furtherance of the authorized military purpose; or
(D) Is lawfully present in the United States with the Director
of Intelligence, and the shipment, transportation, receipt, or
possession of the explosive materials is in furtherance of such
cooperation;* * *''
\11\ The penalty for violation of 18 U.S.C. 842(i) is up to ten
years imprisonment and a fine of up to $250,000.
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However, 18 U.S.C. 845(a)(1) provides an exception to section
842(i) for ``any aspect of the transportation of explosive materials
via railroad, water, highway, or air which are regulated by the United
States Department of Transportation and agencies thereof, and which
pertain to safety.'' Under this exception, if DOT regulations address
the transportation security issues of persons engaged in a particular
aspect of the safe transportation of explosive materials, then those
persons are not subject to prosecution under 18 U.S.C. 842(i) while
they are engaged in the transportation of explosives in commerce. TSA
issued the May 5 IFR and amendments in coordination with agencies
within DOT, the Federal Motor Carrier Safety Administration (FMCSA) and
Research and Special Programs Administration (RSPA), and triggered this
exception. Therefore, the SEA does not apply to commercial drivers with
HMEs while they are engaged in the transportation of explosives in
commerce.
IV. The Current Rule
To comply with the mandates of the USA PATRIOT Act, and to trigger
the exception in 18 U.S.C. 845(a)(1) for the transportation of
explosives, TSA issued the May 5 IFR, technical amendments, and Final
Rule (referred to collectively through the remainder of this document
as the Current Rule). Under the Current Rule, TSA determines that an
individual poses a security threat if he or she: (1) Is an alien
(unless he or she is a lawful permanent resident) or a U.S. citizen who
has renounced his or her U.S. citizenship; (2) is wanted or under
indictment for certain felonies; (3) has a conviction in military or
civilian court for certain felonies; (4) has been adjudicated as
lacking mental capacity or involuntarily committed to a mental
institution; or (5) is considered to pose a security threat based on a
review of pertinent databases.
The Current Rule also establishes conditions and procedures under
which an individual who has been determined to pose a security threat
can appeal the determination. The Current Rule provides a waiver
process for those individuals who otherwise could not obtain a
hazardous materials endorsement (HME) due to a disqualifying felony
conviction or lack of mental capacity. Any holder of an HME who has
committed a disqualifying offense is required to surrender the
endorsement as of September 2, 2003. Finally, the Current Rule
prohibits an individual from holding, and a State from issuing or
renewing an HME for an individual unless the individual meets the TSA
security threat assessment standards.
V. Response to Public Comments
TSA received over 100 comments from individual commercial drivers,
small trucking companies, national and international carriers, labor
organizations, State Departments of Motor Vehicles (DMVs), industry
associations, and associations representing State government. The
discussion below groups the comments by the primary issues raised by
the public.
A. Shortage of Time and Resources
The overwhelming majority of the comments are from the States and
concern the need for additional time and resources. The States notified
TSA that State funding, human resources, and technology are in short
supply. Many of the States needed additional
[[Page 68723]]
State legislative authority to conduct the program and to collect fees
to pay for the States' costs in implementing the program. To the
fullest extent possible, TSA has issued extensions of time for the
start date of the fingerprint-based CHRC to accommodate these requests
and to provide TSA time to develop the fee proposed rule, after TSA
obtained legislative authority to collect user fees to support the
security threat assessment program.
Many of the States raised technical questions concerning the
electronic interface that must exist for the States, TSA, and the
Federal Bureau of Investigation (FBI) to receive and transmit data.
These are daunting issues in light of the fact that each State and the
Federal agencies have unique data management systems, with varying
levels of sophistication. TSA is building a new Credentialing Screening
Gateway System (Screening Gateway) to collect, retain, and transmit all
of the information that must be collected from the applicant to conduct
a security threat assessment. Once this system is complete, TSA will be
prepared to receive all of the data fields required when the applicant
provides the required information for an HME. TSA considers the process
for collecting applicants' fingerprints for purposes of this
regulation--working through State Departments of Motor Vehicles and
allowing States either to collect the fingerprints themselves or to ask
TSA to do so--as the best process to implement the USA PATRIOT Act's
requirements in the near term. DHS is collecting fingerprints for other
Departmental programs and expects to implement other programs in the
future that will involve fingerprint collection. As all of these
programs evolve, DHS will consider whether processes for this program,
or for several DHS programs, can be consolidated to improve efficiency
while fulfilling security needs. If greater efficiencies are possible,
TSA will consider amending this rule, if necessary, to achieve those
efficiencies.
TSA is not requiring the States to develop new connectivity with
the TSA Screening Gateway. In States that choose to collect
fingerprints and applicant information rather than use TSA for that
purpose, the State will be responsible for transmitting the information
to TSA electronically through the existing Commercial Drivers License
Information System (CDLIS), and ensuring that the fingerprints are
forwarded to the FBI in a form and manner consistent with FBI and TSA
standards. TSA will assist in the electronic transfer of information in
States that are in the process of upgrading their systems when the rule
becomes effective. In these States, for a short time TSA will accept
the information in alternate forms, such as email or facsimiles; and
will format or digitize the information into a useable format until the
States' computer upgrades are complete. TSA believes that the ability
to exchange information electronically will benefit the States, the
industry, and TSA in the long run and so TSA encourages the States to
opt for this process. If a State knows that it will not be able to
transmit the information electronically until after July 2005, however,
the State should formally elect to have TSA capture the fingerprints
and driver information. TSA can staff the data entry for a short period
of time until a State's computer system is upgraded, but TSA does not
have the resources to perform that task beyond July 2005.
B. List of Disqualifying Criminal Offenses.
Many individual drivers, trucking companies, and the States
submitted comments on the list of disqualifying offenses in the Current
Rule. For that reason, TSA reevaluated the list in order to ensure that
it is not over- or under-inclusive. As a result, TSA is making several
changes to the list of disqualifying crimes.
The list of permanently disqualifying offenses in the Current Rule
includes espionage, treason, sedition, a crime involving a
transportation security incident, improper transportation of a
hazardous material, a terrorist crime, arson, unlawful use of an
explosive, and conspiracy to commit any of these crimes. TSA is making
four changes to the list of permanently disqualifying offenses: arson
is reclassified as an interim rather than a permanent disqualifier,
violations of the Racketeer Influenced Corrupt Organizations Act (RICO)
are permanently disqualifying if an underlying crime is a permanent
disqualifier (such as a terrorist conviction under 18 U.S.C. chapter
113B); TSA is adding unlawful purchase, receipt, transfer, shipping,
transporting, import, export or storage of an explosive to former
paragraph 1572.103(b)(9); and TSA is reclassifying murder as a
permanently disqualifying crime.
TSA is amending the list of interim disqualifying offenses by
adding arson and unlawful purchase, receipt, transfer, shipping,
transporting, import, export or storage of a firearm, and by
reclassifying murder and removing simple drug possession from the list.
Possession with intent to distribute remains an interim disqualifying
offense.
TSA developed the list of disqualifying felony convictions in
consultation with the Department of Justice (DOJ) and DOT, to include
those offenses that are reasonably indicative of an individual's
predisposition to engage in violent or deceptive behavior that may be
predictive of a security threat. Some States suggested that all
criminal convictions should be disqualifying. The USA PATRIOT Act
requires TSA to ``review relevant criminal databases'' and appropriate
international databases to determine whether the applicant poses a
security threat. Based on the legislative language and the need to keep
commerce moving, TSA believes that disqualification of all drivers with
a criminal record is not necessary. Past history and current threat
information do not indicate that all persons with a criminal conviction
pose a security threat. We believe that the rule lists the criminal
offenses that indicate an individual's predisposition to engage in
violent or deceptive activity that may reasonably give rise to a
security threat.
TSA is removing simple possession of a controlled substance from
the list based on comments received and our own analysis. Simple drug
possession generally does not involve violence against others or reveal
a pattern of deception, as crimes like smuggling or bribery often do.
In addition, FMCSA's regulations governing the commercial driver's
license program require CDL holders to undergo pre-application, post-
accident, and random alcohol and drug testing. 49 CFR part 382. A
positive drug or alcohol test will result in restrictions on the
driver's CDL or disqualification. TSA believes that these standards act
as a strong deterrent against alcohol or drug use while employed as a
CDL driver. To the extent that an individual with a simple drug
possession conviction presents a threat, the current CDL testing
requirements most likely deter dangerous individuals with drug use
problems from seeking employment as a hazmat driver. Based on this, and
because simple drug possession generally does not fall within the class
of crimes involving violence or deception, TSA has determined that
there should be no adverse impact resulting from removing conviction
for simple possession of a controlled substance from the list of
disqualifying offenses. Conviction for possession of drugs with intent
to distribute remains a disqualifying crime.
We are reclassifying arson as an interim rather than a permanent
disqualifying offense. In reevaluating
[[Page 68724]]
the list of most serious crimes--those that disqualify an applicant for
life--TSA believes that arson is not always an act of terrorism, as the
other permanent disqualifying crimes typically are. Although an arson
conviction may be indicative of a very dangerous individual who should
not have control of hazardous material shipments, we do not believe
that it rises to the same level of threat as espionage and treason do.
It remains a disqualifying offense in this IFR, and TSA can carefully
consider the underlying facts if a convicted arsonist applies for a
waiver to determine whether the facts are indicative of an individual
who presents on ongoing, unacceptable risk to security.
We are reclassifying murder as a permanent rather than interim
disqualifying offense. Murder is one of the most violent crimes on the
list of disqualifiers and indicates a disregard for human life. In
reevaluating the standards, TSA has concluded that the crime of murder
should be permanently disqualifying.
TSA is adding a RICO offense to the list of permanent disqualifiers
if the underlying or predicate racketeering act for the RICO conviction
is a permanently disqualifying offense. TSA understands that RICO
convictions are often the result of a series or variety of criminal
acts that may not be listed in the criminal history records. However,
if a defendant is found by the trier of fact, or by his own admission
in the course of a guilty plea, to have committed a permanently
disqualifying offense as a predicate to a RICO conviction, TSA will
consider the RICO conviction as permanently disqualifying. Conversely,
where a RICO conviction is based on a series of robberies, the RICO
conviction becomes an interim disqualifying offense. TSA does not
anticipate that RICO violations will surface often during the security
threat assessment process, but wishes to ensure that they are handled
consistently and appropriately if they arise.
With respect to a conviction involving improper shipment of a
hazardous material under Sec. 1572.103(a)(6), TSA has added the
corresponding Federal statutory citation to the rule (49 U.S.C. 5124)
to specify the provision of law that is disqualifying. TSA has made
this change in response to comments from the Institute of Makers of
Explosives (IME) and the National Propane Gas Association (NPGA), in
which they expressed concern that a State might charge an individual
with a state crime that involves hazardous materials and incorrectly
consider it a disqualifying offense under the Current Rule. Section
5124 of title 49, United States Code, provides that a person who
knowingly violates section 5104(b) of the law (tampering and marking
standards for hazardous materials), or other law in Chapter 51,
Transportation of Hazardous Materials, will be fined under title 18 of
the Code, or imprisoned, or both. TSA agrees that adding the Federal
citation avoids confusion or incorrect application of the law. This
amendment clarifies that 49 U.S.C. 5124, or a state law that is
comparable, is disqualifying.
TSA has also added the phrase ``or State law that is comparable''
to crimes that include a specific Federal statutory citation to ensure
that where a crime is committed pursuant to a State statute equivalent
to these Federal statutes, it is clear that a conviction is
disqualifying. The language has been added to paragraphs (a)(4),
(a)(6), (a)(8), (a)(10) , and (b)(10).
As part of the discussion on disqualifying criminal offenses, it is
important to outline the waiver program in the Current Rule and this
IFR. TSA's waiver program provides an avenue for drivers with criminal
histories to present the circumstances of their crime, evidence of
restitution or other sentencing conditions, rehabilitation, and letters
of reference. TSA has received approximately 35 waiver requests to
date. The rule imposes a lifetime ban on persons convicted of the most
serious security-related offenses (such as treason, espionage, and
sedition); any driver convicted of one of these felonies is not
eligible for a waiver. However, a driver with a conviction for other
disqualifying felonies may apply for a waiver of the standard.
C. Immigration Status
With respect to certain aliens, TSA is amending the standards in
this rule in response to comments received and TSA's analysis of the
industry. The Current Rule permits citizens and lawful permanent
residents to apply for a security threat assessment for an HME.
The FMCSA has statutory authority to develop standards for
obtaining a CDL. The FMCSA regulations require CDL holders to be
domiciled in the licensing State or be issued a nonresident CDL under
prescribed procedures.\12\ FMCSA's domicile requirement provides that a
CDL holder must have a State of Domicile, which is defined as ``the
State where a person has his true, fixed, permanent home and principal
residence, and where he has the intention of returning whenever he is
absent.''\13\ FMCSA's regulations also provide for situations in which
a CDL operator is domiciled in a foreign jurisdiction that does not
test drivers and issue CDLs in accordance with the FMCSA standards, and
permits those individuals to obtain a non-resident CDL from a State
that does comply with the testing and licensing requirements.\14\
The trucking industry includes many alien drivers, including lawful
nonimmigrants, refugees, and asylees. There are areas of the country,
particularly the border States, where the concentration of non-citizens
is very high. TSA has received correspondence from drivers in the
United States under refugee status who understand that they cannot hold
an HME under the Current Rule. In addition, their congressional
representatives have expressed interest in authorizing these aliens to
hold an HME. Employers have also expressed concern that the industry
will be adversely impacted if all aliens are prohibited from holding an
HME. This concern is particularly acute now because the trucking
industry has informed TSA that the current annual employment turnover
rate exceeds 80 percent. Employers report that good employees are
difficult to find and keep, and often non-citizen employees are highly
motivated to begin a trade in the United States once granted lawful
status. Background checks are sometimes completed before an alien is
granted lawful status or issued evidence of such status, but may not
occur in some cases. However, assuming these individuals meet all CDL
qualifications and apply for an HME, these applicants would undergo
TSA's thorough security threat assessment.
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\12\ 49 CFR 384.212.
\13\ 49 CFR 383.5.
\14\ 49 CFR 383.23(b).
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For the reasons listed above, TSA has determined that the security
threat assessment standards should be changed to permit nonimmigrant
aliens, asylees, and refugees, who are in lawful status and possess
valid and unrestricted documentation establishing eligibility for
employment to apply for an HME and security threat assessment, if they
are qualified to hold a CDL under 49 CFR parts 383 and 384. Any
questions concerning the CDL requirements, particularly with respect to
domicile, are governed by the FMCSA regulations and State DMV offices.
As long as the applicant complies with the FMCSA regulations for
obtaining a CDL, is in the country lawfully, is authorized to work in
the U.S., successfully completes TSA's security threat assessment, and
meets all other
[[Page 68725]]
applicable standards, the applicant will meet the security threat
assessment standards for holding an HME. TSA believes that if these
standards are met, a person's status as an alien alone should not
disqualify the individual from holding an HME. Aliens in lawful status
are permitted to join the U.S. armed services and operate in other
modes of transportation, such as flying aircraft in U.S. airspace, as
long as they meet all applicable standards. TSA believes hazmat drivers
should be treated similarly.
D. Collection of Fingerprints
Commenters asked TSA to permit the submission of fingerprints once
and rerun those prints when the driver must renew or transfer an HME.
They cite the cost and time needed to collect new fingerprints each
time the driver undergoes a new security threat assessment as
justification for recycling fingerprints. TSA understands these
concerns and continues to develop a process and system to ensure that
necessary fingerprint resubmissions are minimized.
E. Preemption
Several commenters asked for clarification or reconsideration of
the preemptive effect that this rule has on State or local law. TSA's
rule provides minimum standards for a security threat assessment that
all 50 States and the District of Columbia must meet. If a State wishes
to take additional action to protect its citizens, TSA's rule does not
prevent it.
The State is the licensing body for drivers who are State residents
and the State has a clear mandate and interest in protecting the
residents and drivers within its borders from dangerous drivers. Thus,
if a State determines that additional measures should be applied to
drivers licensed by the State, and the measures are not inconsistent
with TSA's rule, TSA does not wish to preclude the State from
establishing them. As long as the State does not nullify or controvert
the intent of the standards in this IFR, TSA's rule would not preempt
State action. In deference to the State as the licensing body
responsible for the welfare of its citizens, TSA believes that
complementary State action may be appropriate. For instance, if a State
adds a felony or misdemeanor conviction as disqualifying that is not
among the list of disqualifying offenses in this rule, TSA's rule does
not preempt application of the State law concerning drivers licensed in
that State. However, a State is preempted from applying a standard in
which the interim disqualifying offenses are no longer treated as
disqualifying.
Federal preemption of State driver licensing standards is treated
differently from Federal preemption of State laws or regulations
governing the transportation of hazardous materials in commerce. The
Federal Hazardous Materials Regulations at 49 CFR parts 171-180 are
promulgated under the mandate in section 5103(b) of the Federal
hazardous materials transportation law [Federal hazardous materials
(hazmat) law; 49 U.S.C. 5101 et seq., as amended by section 1711 of the
Homeland Security Act of 2002, Public Law 107-296] that the Secretary
of Transportation ``prescribe regulations for the safe transportation,
including security, of hazardous material in intrastate, interstate,
and foreign commerce.'' One of the primary purposes of Federal hazmat
law is to ensure a nationally uniform set of regulations applicable to
the transportation of hazardous materials in commerce. Thus, the
preemption provisions of Federal hazmat law generally preclude non-
Federal governments from imposing requirements applicable to hazardous
materials transportation if:
(1) Complying with the non-Federal regulation and complying with
Federal hazmat law, the hazmat safety regulations (HMR), a hazardous
materials transportation security regulation, or directive issued by
the Secretary of Homeland Security is not possible (dual compliance
test; 49 U.S.C. 5125(a)(1)); or
(2) The non-Federal requirement is an obstacle to carrying out
Federal hazmat law, the HMR, or a hazardous materials transportation
security regulation or directive issued by the Secretary of Homeland
Security (obstacle test; 49 U.S.C. 5125(a)(2)).
Further, Federal hazmat law preempts a non-Federal requirement
applicable to any one of several specified covered subjects if it is
not substantively the same as Federal hazmat law, the HMR, or a
hazardous materials transportation security regulation or directive
issued by the Secretary of Homeland Security (covered subjects test; 49
U.S.C. 5125(b)).
The HMR are not minimum requirements that other jurisdictions may
exceed if local conditions warrant; rather, the HMR are national
standards and must be uniformly applied across jurisdictional lines.
However, another Federal law may authorize non-Federal requirements. 49
U.S.C. 5125(a) and (b). Also, RSPA may waive preemption of a non-
Federal requirement if it: (1) Provides the public with at least as
much protection as requirements of Federal hazmat law and the HMR, and
(2) does not impose an unreasonable burden on commerce. 49 U.S.C.
5125(e).
Most of the questions TSA receives concerning preemption involve
the definition of ``conviction'' and whether the State definition or
the definition set forth in TSA's rule applies. TSA's definition
applies in the context of hazmat drivers, and TSA is amending it in
this IFR to clarify the difference between State and Federal
expungement standards. The new definition describes what actions
constitute an expungement for purposes of the rule and serve to nullify
a conviction. By providing the new definition, TSA believes that many
of the questions concerning the application of State or Federal
``conviction'' standards are now addressed.
Some commenters have asked whether the TSA rule precludes a State
from reviewing State criminal databases, in addition to the CJIS
criminal records that TSA will search. Some States have stated that
they plan to complete a check of the State records and forward any
pertinent information to TSA with the other applicant information for
consideration in the security threat assessment. Moreover, some States
are required by State law to forward a driver's derogatory criminal
history to TSA.
TSA's rule neither requires a State to search nor prevents a State
from searching its own criminal records. If a State has the resources
to check State criminal history records and forward any pertinent
information to TSA during an applicant's security threat assessment,
TSA will use the information. The only caveat we must apply is the
State record must be transmitted to TSA contemporaneously with the
other applicant information that the State submits to TSA. Considering
the volume of information that will be exchanged on 2.7 million
drivers, TSA and the States must make every effort to keep an
applicant's information consolidated. Also, the State must consult with
TSA concerning an acceptable format it will use to transmit the State
criminal records to make certain TSA staff can easily decipher the
record.
F. Privacy Concerns
Several drivers and employers commented on TSA's ability to
maintain the confidentiality of a driver's identification information.
Some drivers are skeptical that TSA can protect this personal
information from use by other government agencies, commercial
organizations, or employers. Employers
[[Page 68726]]
would like to receive some of the information that will be collected
for the security threat assessment. TSA is sensitive to these issues
and has established safeguards to ensure that all information will be
handled in accordance with the Privacy Act of 1974.\15\
---------------------------------------------------------------------------
\15\ 5 U.S.C. 552a, as amended.
---------------------------------------------------------------------------
TSA employees and contractors are bound by law and contract to
abide by Federal privacy laws to protect personal information from
unauthorized disclosure. There are criminal sanctions for individuals
who violate these laws. TSA has published its Privacy Act System of
Records \16\ for this program, detailing the information to be
collected, how it will be used, and the routine uses of that
information. TSA's System of Records discussed above permits sharing
information with employers in its routine uses section. The personal
information will be password protected and secured against unauthorized
access.
---------------------------------------------------------------------------
\16\ 69 FR 57349 (September 24, 2004).
---------------------------------------------------------------------------
As a matter of efficiency, TSA intends to maintain as much
consistency as possible between the current hazmat driver and future
maritime programs. The Maritime Transportation Security Act (MTSA)\17\
requires a security threat assessment of workers with unescorted access
to secure areas of ports, maritime vessels, and facilities. MTSA
provides that any information constituting the grounds for denial of a
transportation worker identification card must be maintained
confidentially by the Secretary; an individual's employer may be
informed of whether or not the individual has been cleared.\18\ With
respect to the hazmat program, any notification TSA makes to an
employer will relay whether the driver's endorsement has been revoked
so that the employer knows that the driver is not authorized to
transport hazmat. Actual criminal history or other dispositive records
will not be shared with employers. If TSA determines that an imminent
threat exists and additional measures are necessary to secure a
facility, TSA may provide additional information to the employer to
help prevent a security incident.
---------------------------------------------------------------------------
\17\ Pub. L. 107-295, November 25, 2002, 116 Stat. 2064.
\18\ 46 U.S.C. 70105(e).
---------------------------------------------------------------------------
It is also important to note that the FBI places restrictions on
who may have access to the raw data obtained during a fingerprint-based
CHRC. See 28 CFR 50.12. These restrictions would also apply to an
employer's use of certain information.
TSA is considering requiring all employers to maintain a list of
employees who hold HMEs, so that in the event that TSA wishes to notify
an employer that an employee is not authorized to transport hazmat, TSA
will have the information necessary to contact the employer. TSA may
require each employer to maintain this list on a secure website that
TSA can access easily and to update the list periodically. TSA has
similar requirements in place in aviation. For instance, each airport
must maintain a current list of individuals who have unescorted access
to secure areas of an airport, and conduct periodic audits to ensure
that the list is accurate. 49 CFR 1542.211. TSA requests comments from
the industry concerning methods to establish such a database that would
impose the fewest burdens and costs. Also, TSA requests comments on
additional measures that would be useful in protecting this information
from unauthorized access.
G. Tiered Background Checks
In one comment, an individual driver asked TSA to consider
developing a tiered security threat assessment, with more stringent
standards in place for the transportation of dangerous goods, such as
weapon systems, chemical and biological warfare materials, and bulk
fuels. Individuals who haul less dangerous products, such as asbestos,
lithium batteries, food coloring, corn syrup, and bleach would undergo
a security threat assessment, but with a shorter list of disqualifying
offenses. TSA has discussed this principle internally for use across
all modes of transportation. Under this approach, individuals with
unescorted access to highly sensitive information, equipment, areas, or
products would undergo a very intensive background check, and those
with access to less sensitive material would complete a check of
relevant criminal databases, particularly for outstanding wants and
warrants, immigration status, and appropriate terrorist watch lists.
The difficulty with this approach is that it increases the costs,
time, and resources necessary to track a particular shipment through
the transportation system and make certain that only individuals with
the appropriate background check come in contact with the shipment. TSA
and DOT faced this problem with explosives shipments. Manufacturers and
shippers were not willing to ship explosives in commerce because the
SEA was originally going to be implemented in such a way that no felon
could transport the explosive. The industry understood that it would
not be possible to know at one end of the shipment process who might
handle the package before it reaches its destination. In the scenario
the commenter proposes, a significant amount of time would have to be
spent by the industry to ensure that a box of explosives entering the
transportation system in California does not travel through the hands
of an individual who had not completed the most stringent security
threat assessment before it reaches Vermont.
We note in this regard that the Current Rule, as amended by this
IFR, provides for a tiered security threat assessment in that the
driver background check requirements apply to drivers who transport
``placarded'' amounts of hazardous materials and select agents.
``Placarded'' amounts and materials are liquid, gaseous, or solid
products that DOT has determined to be hazardous in transportation and
require special marking and packaging while transported in commerce.
(49 CFR part 172). In the May 5 IFR (68 FR 23832) TSA and DOT
determined that the most significant security risks associated with the
transportation of hazardous materials in commerce involve the
transportation of certain radioactive materials, certain explosives,
materials that are poisonous by inhalation, certain infectious and
toxic substances, and bulk shipments of materials such as flammable and
compressed gases, flammable liquids, flammable solids, and corrosives.
This list generally correlates to the types and quantities of hazardous
materials for which placarding is required. Using the placarding
thresholds to trigger enhanced security requirements covers the
materials that present the most significant security threats in
transportation and provides a relatively straightforward way to
distinguish materials that may present a significant security threat
from materials that do not. It also provides consistency for the
regulated community, thereby minimizing confusion and facilitating
compliance.
As the security programs administered by TSA mature, we intend to
develop additional refinements to the process while maintaining a high
level of security.
H. HME Transfers
Several drivers and State agencies have requested different
standards for HME holders who must transfer the HME to a new State of
residence. They cite the difficulty a driver faces if he undergoes
security threat assessments for example, in February 2005 in Virginia,
and must complete a second security threat assessment if he moves
[[Page 68727]]
to another State in the following year. Based on calls TSA has
received, some drivers transfer State domicile and driver's licenses
frequently. These transfers can become very costly for the driver or
his employer, and impose additional work on the State DMVs and TSA.
Therefore, TSA is amending the rule to permit the States and a transfer
HME applicant to complete one security threat assessment for the period
of time required in the driver's original State of issuance. For
example, a driver in State A, where the renewal period is every four
years, who completes a security threat assessment in 2005 and then
moves to State B, will not have to complete a second threat assessment
until the State A assessment expires in 2009. FMCSA's regulations
require renewing the HME at least once every five years, so drivers
across the country have nearly identical renewal periods. 49 CFR
383.141(d). Thus, there is no risk that any driver will go more than
five years without a security threat assessment.
TSA invites comment from industry and the States on this new
standard. TSA anticipates that the States will have to amend internal
recordkeeping practices to track the HME transfer applicants, but we
believe based on the comments received from the States that this is
preferable to initiating a new security threat assessment each time an
HME holder transfers to a new State.
I. Applicability of Waivers to Sec. 1572.107 Disqualifications
An organization submitted comments asking TSA to reconsider the
disqualifications from eligibility for a waiver under Sec. 1572.107.
TSA does not permit applicants who are disqualified under Sec.
1572.107 to apply for a waiver. First, disqualifications under
paragraph 1572.107(a) generally are a result of the intelligence-
related check and reveal that the applicant may have or has connections
to terrorist activity, leading to the determination that the applicant
poses a security threat. Once an applicant is determined to pose a
security threat due to intelligence-related information, there can be
no rational reason to grant him a waiver of the standards. Further,
disqualifications under paragraphs 1572.107(a) or (b) are based on
individual determinations that, based on all of the circumstances, the
applicant poses a threat. This scenario is unlike situations under
Sec. 1572.103, in which applicants are disqualified based on a certain
criminal history, but where the circumstances surrounding the crime or
rehabilitation following conviction might warrant issuing a waiver.
Because individual circumstances are taken into account under a
determination based on Sec. 1572.107, there is no reason for a waiver.
Applicants disqualified under Sec. 1572.107 may appeal TSA's
initial determination that the applicant may pose a security threat on
the grounds that TSA's assessment is inaccurate (e.g., due to mistaken
identity). If TSA is not persuaded that the appeal should be granted,
there is no opportunity for a waiver. TSA is changing this section of
the rule to heighten the level of scrutiny that the applicant's appeal
will receive. The rule now requires that the Assistant Secretary,
rather than the Director, review and make a final determination of
appeals that arise under Sec. 1572.107 of the rule.
J. Hazmat Endorsements for Certain Farmers
Some States have asked whether individuals engaged in farming, who
are subject to certain exceptions in the FMCSA and RSPA rules, must
undergo a security threat assessment. Farmers are not required to
obtain a commercial drivers license if they operate their vehicles
within a 150-mile radius of the farm. If they transport materials that
must be placarded, they must obtain a farm hazmat endorsement, which is
attached to a basic operator Class D license. To obtain this
endorsement, the driver must pass the regular CDL hazmat written test
and a driving test in a representative vehicle.
These drivers are not required to undergo a security threat
assessment for an HME because they are not required to obtain a CDL.
The requirements in Sec. 1012 of the USA PATRIOT Act are specific to
the hazardous materials endorsement on a commercial drivers license.
TSA may determine in the future that this population should undergo
some form of a security threat assessment under the provisions of the
Aviation and Transportation Security Act.\19\ However, TSA is not
amending this rule to cover this group, because the rule applies to the
States and holders of commercial drivers licenses.
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\19\ 49 U.S.C. 114.
---------------------------------------------------------------------------
K. Acceptance of Background Checks Conducted by Other Agencies
TSA has received inquiries concerning the acceptance of background
checks completed by other public and private entities. They urge TSA to
recognize these checks as comparable to the security threat assessment
required in this rule to avoid duplication of effort and unnecessary
cost. Consistent with Homeland Security Presidential Directive-11 on
comprehensive terrorist-related screening procedures and Homeland
Security Presidential Directive-12 on common identification standards,
TSA is committed to ``standardizing'' the security threat assessment
process to the fullest extent possible. TSA will continue to work with
all appropriate Federal agencies to ensure comparable background checks
and threat assessments to avoid duplication of effort and minimize
costs. TSA also recognizes that broader Federal Government efforts are
underway to develop standardized screening for multiple programs across
the Federal Government and the private sector. As these procedures are
developed and implemented government-wide, TSA will consult with other
Federal agencies to provide reciprocity with respect to comparable
security screening programs.
VI. Summary of This Interim Final Rule
This document published today (referred to throughout the remainder
of this document as the IFR) restructures the Current Rule text for
clarity and organization. The chart below provides the section number
in the Current Rule and the corresponding new section number used in
this IFR.
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
1572.5(b).............................. 1572.11
1572.5(c).............................. 1572.13(a)-(d)
1572.5(d)(1)........................... 1572.5(c)
1572.5(d)(2)........................... 1572.5(b)
1572.5(e).............................. 1572.9
1572.5(f).............................. 1572.103
1572.5(g).............................. 1572.15(d)(1)
1572.9................................. 1572.201
1572.11................................ 1572.203
------------------------------------------------------------------------
This IFR changes the Current Rule by amending the security threat
assessment procedures into three distinct phases: the fingerprint-based
check, the intelligence-related check, and the final disposition. As
the Current Rule requires and under this IFR, TSA adjudicates the
results of the fingerprint- and intelligence-related checks. As
provided in this IFR and the Current Rule, after adjudication, TSA
issues a Determination of No Security Threat to the State if the
records do not disclose disqualifying information. TSA issues an
Initial Determination of Threat Assessment to the applicant if the
results of the threat assessment reveal a disqualifying standard. The
applicant may file an appeal of the Initial Determination with TSA,
based on assertions that the underlying records are incorrect or the
records refer to a different individual. After completion of
[[Page 68728]]
an appeal, TSA issues a Final Disposition based on the results of the
security threat assessment and appeal. Under the Current Rule and this
IFR, TSA administers a waiver program for individuals who do not meet
the standards for mental competency or criminal history, but can show
rehabilitation to such an extent that they are capable of holding an
HME.
In the IFR, TSA is making the following changes to the Current
Rule:
Revise definitions and terms in the rule text to describe
the security threat assessment process
Reorganize the rule text so that it is easier to follow
Amend the immigration standards to permit lawful
nonimmigrants, refugees, and asylees who possess valid evidence of
unrestricted employment authorization who are qualified to hold a CDL
to apply for a security threat assessment for an HME
Remove simple possession of a controlled substance from
the list of disqualifying offenses
Reclassify arson as an interim rather than a permanently
disqualifying offense
Add unlawful purchase, receipt, transfer, shipping,
transporting, import, export and storage of a firearm or explosive or
explosive device to the list of disqualifying offenses
Reclassify murder as a permanently rather than an interim
disqualifying offense
Make RICO convictions permanently disqualifying if the
predicate crimes are permanently disqualifying
Add the specific statutory citation for the offense of
improper transportation of hazmat
Lengthen the suspense dates in the appeal and waiver
processes
Reduce the amount of advance notice the States must
provide HME drivers about the need for a background check upon renewal
Amend the standards for drivers who are transferring their
HME to a new State so that they do not have to undergo a new security
threat assessment until the time period established by the State under
which the driver's current security threat assessment expires
Amend the review process for drivers who are disqualified
as a result of the intelligence-related check to provide a final
determination by the Assistant Secretary rather than the Director
Remove the requirement that the States must forward each
driver application to TSA
Require the States to retain the application for one year
Prohibit applicants with certain conviction from applying
for a waiver
Delay the date on which States are required to begin the
security threat assessment process for renewals and transfers
Require electronic submission of the applicant information
in States that elect to do the fingerprint collection
Require the States to notify TSA as to whether the State
elects to collect and submit applicant information and fingerprints, or
whether the State wants TSA do the collection
Each of these changes is discussed in detail in the preamble of
this IFR.
VII. Rulemaking To Establish Fees
Section 1572.13(f) of the IFR provides that each State must decide
whether it wants TSA and its agent to collect applicant information,
fingerprints, and fees, and inform TSA of the decision no later than
December 27, 2004.
The USA PATRIOT Act did not grant TSA authority to collect fees to
cover the costs associated with completing security threat assessments
on hazmat drivers. However, on October 1, 2003, legislation was enacted
requiring TSA to collect reasonable fees to cover the costs of
providing credentialing and background investigations in the
transportation field, including implementation of the USA PATRIOT Act
requirements.\20\ Section 520 of the Homeland Security Appropriations
Act of 2004 (2004 Appropriations Act) requires TSA to collect fees to
pay for the costs of the following: (1) Conducting or obtaining a
criminal history records check (CHRC); (2) reviewing available law
enforcement databases, commercial databases, and records of other
governmental and international agencies; (3) reviewing and adjudicating
requests for waivers and appeals of TSA decisions; and (4) any other
costs related to performing the background records check or providing
the credential.
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\20\ Department of Homeland Security Appropriations Act, 2004,
section 520, Pub. L. 108-90, October 1, 2003, 117 Stat. 1137.
---------------------------------------------------------------------------
Section 520 requires that any fee collected must be available only
to pay for the costs incurred in providing services in connection with
performing the background check or providing the credential. The fee
may remain available until expended. TSA must establish this fee in
accordance with the criteria in 31 U.S.C. 9701 (General User Fee
Statute), which requires fees to be fair and based on (1) costs to the
government, (2) the value of the service or thing to the recipient, (3)
public policy or interest served, and (4) other relevant facts. To the
extent possible, TSA intends for these fees to be relatively consistent
for other TSA background check programs.
In this IFR, TSA is requiring States to choose between two
fingerprint collection options. Each State must either: (1) Collect and
transmit the fingerprints and applicant information of individuals who
apply for or renew an HME; or (2) allow an entity approved by TSA (TSA
agent) to collect and transmit the fingerprints and applicant
information of such individuals. States are required to notify TSA in
writing of their choice within 30 days after the date this IFR is
published in the Federal Register. If a State does not notify TSA in
writing of its choice by that date, TSA will assume that the State has
chosen the second option and will work with the State to establish a
system for a TSA agent to collect fingerprints and applicant
information in the State.
The State will be required to operate under the option it chooses
until at least January 31, 2008, unless otherwise approved by TSA. TSA
is requiring a specific initial time period of three years so that TSA
and the TSA agent can adequately assess the overall cost of
implementing the program. The fingerprint portion of the threat
assessment will be effectively staggered initially as new applicants
apply for the first time and as existing HME holders apply to renew
their endorsement. If the States could change position on a yearly
basis, the TSA agent would make its initial contract bid based on
inaccurate cost projections. With a specific time period, the TSA agent
can estimate with more certainty how many applicants must be processed,
how much equipment is needed, where the collection centers will be
located, and the number of employees needed to carry out the collection
tasks.
To comply with the mandates of Section 520 of the 2004
Appropriations Act, the USA PATRIOT Act, and the SEA, TSA is issuing a
companion notice of proposed rulemaking (Fee NPRM) to establish user
fees for individuals who apply to obtain or renew an HME, and thus are
required to undergo a security threat assessment in accordance with 49
CFR part 1572. In the Fee NPRM, TSA proposes to establish two new user
fees in addition to the FBI fee for performing the CHRC on behalf of
government agencies for non-governmental applicants: (1) A fee to cover
TSA's costs of performing and adjudicating security threat assessments,
appeals, and waivers (Threat Assessment Fee); and (2) a fee to cover
the costs of collecting and transmitting fingerprints and applicant
information (Information Collection and Transmission Fee).
[[Page 68729]]
Under the Fee NPRM, if a State opts to collect fingerprints and
applicant information itself, the State would be required to (1)
collect and remit to TSA the Threat Assessment Fee in accordance with
the requirements of the Fee NPRM and (2) collect and remit to the FBI
its user fee to perform a criminal history records check. The State
then would be free to collect a fee under State law, such as to cover
its costs of collecting and transmitting fingerprints and applicant
information.
If a State opts to permit a TSA agent to collect and transmit
fingerprints and applicant information, the State would not be required
to collect and remit to TSA any fees under the Fee NPRM. Rather, a TSA
agent would (1) collect and remit to TSA the Threat Assessment Fee and
FBI fee; and (2) collect the Information Collection and Transmission
Fee (which TSA will use to pay the agent for its services). TSA will
remit to the FBI the appropriate FBI fee.
VIII. Section-by-Section Analysis
Section 1572.3 Terms Used in This Part
Section 1572.3 adds and revises definitions of terms used
throughout part 1572. The term ``adjudicate'' is added to describe the
process by which an individual's security threat assessment is analyzed
to determine whether the individual meets the security threat
assessment standards. When TSA receives the results of the fingerprint-
and intelligence-related checks, TSA analyzes the information for
criminal history, immigration status, mental competency, and
connections to terrorist activity to determine if the applicant should
be disqualified under the standards described in this rule. The process
of making this determination is the adjudication process.
``Alien'' means a person not a citizen or national of the United
States. This definition is consistent with the definition of that term
provided in the USA PATRIOT Act, which defines ``alien'' by referring
to the definition provided in section 101(a)(3) of the Immigration and
Nationality Act (INA). Section 101(a)(3) of the INA defines ``alien''
as any person not a citizen or national of the United States.
The Current Rule permits lawful permanent residents and U.S.
citizens to hold an HME after successfully completing TSA's security
threat assessment. This IFR expands the group of potential HME holders
to include lawful nonimmigrants, refugees, and asylees who possess
valid, unrestricted evidence of employment authorization, so long as
they meet the threshold requirement of being qualified to hold a CDL.
TSA is making this change in response to comments received from the
States, trucking companies, and individual drivers. Many are concerned
that prohibiting aliens who are in the United States working lawfully
from transporting hazardous materials will adversely impact the
movement of commerce in areas where the concentration of non-citizens
is high.
TSA has evaluated the potential risks associated with this change
and determined that it will not adversely impact security. Almost all
of these individuals undergo background and security checks before
obtaining lawful immigration status. Then, they will be subject to the
full security threat assessment TSA conducts, which includes a variety
of international sources, before being authorized to hold an HME. TSA
has determined that, based on these facts and the high level of
industry interest in permitting certain aliens to transport hazardous
materials, the potential security risks have been effectively addressed
and these individuals should be permitted to transport hazmat. This
decision is discussed in greater detail in TSA's response to comments
received.
``Alien registration number'' means the number issued by DHS to an
individual when he or she becomes a lawful permanent resident or
attains other non-citizen status. We are adding ``or attains other non-
citizen status'' to account for the fact that we are now permitting
other non-citizens to apply for a hazmat endorsement.
TSA is adding the term ``applicant'' to mean an individual who
applies to obtain, renew or transfer an HME. Regardless of which phase
the individual is in, the term ``applicant'' can be used to accurately
describe the individual for ease of reference.
We are adding a definition for the term ``Assistant Secretary'' in
this IFR, because of a slight difference in the IFR concerning which
TSA official makes final determinations of appeals and waivers. In this
IFR, only the Assistant Secretary, TSA's highest ranking official or
his or her appointed designee, can make a final determination on the
appeal of a disqualification under Sec. 1572.107. Due to the fact that
the information used for these checks may be classified, and therefore
not available to the applicant for review, TSA believes that it is
appropriate to provide a high level of scrutiny on these final
determinations.
The terms ``commercial driver's license'' and ``endorsement,'' are
used here as defined in the Current Rule and in FMCSA's regulations at
49 CFR 383.5. We are not making any changes to these definitions.
TSA is changing the definition of ``convicted'' in this rule. In
the Current Rule, convicted means any plea of guilty or nolo
contendere, or any finding of guilt. Under the IFR, TSA will include
the effect that a reversal, pardon, or expungement has on a conviction.
Each of these actions nullifies the conviction for purposes of
determining whether an applicant meets the security threat standards.
It is important to note that the definition also explains what an
effective expungement is. For purposes of complying with this rule, the
expungement must remove the criminal record from the applicant's file
and cannot impose any restrictions or disabilities on the applicant.
Also, if the applicant is permitted to withdraw a guilty plea or plea
of nolo contendere and the case is dismissed, the individual is no
longer considered to have a conviction. TSA believes it is necessary to
include this level of detail in the definition to ensure that
applicants are treated consistently across the country. Procedures on
expungements vary from state to state, and may change at any time.
Therefore, TSA hopes to avoid inconsistent application of the law
against hazmat drivers by providing the new definition.
We are making three changes to the definition of ``date of
service'' in Sec. 1572.3. In the Current Rule, date of service is the
date of personal delivery; the mailing date shown on a certificate of
service; the date shown on the postmark if there is no certificate of
service; another mailing date shown by other evidence if there is not
certificate of service or postmark; or the date of an e-mail showing
when the document was sent. We are changing ``e-mail'' to ``electronic
transmission'' to reflect more accurately the type of information
exchange that will likely occur among the States, TSA, and TSA's agent.
In addition, we are replacing ``the date shown on the postmark if there
is no certificate of service'' with ``10 days from the date of mailing,
if there is no certificate of service.'' TSA believes that this change
is more reasonable, considering the fact that many drivers are away
from home for at least a week and may not have enough time to initiate
an appeal without this change. Finally, we are changing the language
for circumstances where a document is mailed and there is no
certificate of service. In these cases, date of service is the date on
which the document is mailed to the mailing address designated by the
applicant on the application. TSA makes this change to
[[Page 68730]]
underscore that TSA considers the information the applicant puts on the
application as accurate and will rely on it for service of documents.
The term ``day'' used in the rule means calendar day and is the
same definition used in the Current Rule.
``Determination of No Security Threat'' is an administrative
determination by TSA that an individual does not pose a security threat
that warrants denial of the authorization to transport hazardous
materials. Also, TSA will issue a Determination of No Security Threat
to the State when TSA issues a waiver. This term is a replacement for
``Notification of No Security Threat'' that is used in the Current
Rule, but has the same meaning. TSA will use ``determination'' in place
of ``notification'' throughout the definitions.
The term ``Director'' refers to the officer designated by the
Assistant Secretary to administer the appeal and waiver programs
described in this part, unless the Assistant Secretary is specifically
designated in the rule to administer the appeal or waiver program. The
Director is authorized to name a designee to perform these duties,
except where the IFR specifically designates the Assistant Secretary to
administer the appeal or waiver program.
TSA is adding a definition of explosive or explosive device, which
includes an explosive or explosive material defined in 18 U.S.C.
232(5), 841(c)-(f), and 844(j), and a destructive device defined in 18
U.S.C. 921(a)(4) and 26 U.S.C. 5845(f). The addition of this definition
does not alter the substance of the rule in any way; it simply provides
clarity for individuals looking for guidance on the items that
constitute an explosive. The list is illustrative, not exhaustive.
``Final Determination of Threat Assessment'' means a final
determination by TSA that an individual does not meet the standards
required to hold or obtain a hazardous materials endorsement. A Final
Determination may not be administratively appealed. In the Current
Rule, this action is referred to as a Final Notification of Threat
Assessment. We are changing ``notification'' to ``determination'' to
reflect more accurately the action being taken.
``Final Disposition'' is a new term in the IFR that describes the
actions that must be taken when a security threat assessment is
complete.
TSA is adding a definition of ``firearm or other weapon,'' which
includes firearms defined in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)
or items contained on the U.S. Munitions Import List at 27 CFR 447.21.
The addition of this definition does not alter the substance of the
rule in any way; it simply provides clarity for individuals looking for
guidance on the items that constitute an explosive. The list is
illustrative, not exhaustive.
A ``hazardous material'' means any material that: (1) In accordance
with Federal hazardous materials transportation law (49 U.S.C. 5101 et
seq.), has been determined to pose an unreasonable risk to health,
safety, and property when transported in commerce and that is required
to be placarded under subpart F of part 172 of the Hazardous Materials
Regulations (49 CFR parts 171-180); or (2) any quantity of any material
listed as a select agent or toxin by Centers for Disease Control and
Prevention (CDC) in 42 CFR part 73. This is the same definition used in
section 103 of the Hazardous Materials Transportation Act and in the
Current Rule.
DOT evaluates materials to determine whether their respective
characteristics, properties, and quantities in transportation merit
special marking, storage, and handling procedures. TSA, in consultation
with DOT, has determined that non-placarded shipments do not present a
sufficient security risk in transportation to warrant application at
this time of the TSA background check requirements to persons who
possess or transport these materials, including persons subject to 18
U.S.C. 842(i).
``Hazardous materials endorsement (HME)'' is the authorization
issued by a State Department of Motor Vehicles (DMV) to transport
hazardous materials in commerce. An HME attaches to a truck driver's
commercial driver's license (CDL), which is also issued by a State DMV.
``Incarceration'' means confinement to a jail, half-way house,
treatment facility, or other institution, on a full or part-time basis
pursuant to a sentence imposed due to a conviction. This definition is
taken from a statutory definition of ``imprisoned'' in 22 U.S.C. 2714,
which relates to denial of passports due to certain drug offense
convictions. It is the same as the definition used in the Current Rule.
We have used this definition of incarceration because it is used in
similar Federal regulatory programs, such as those involving the
issuance or approval of passports. See 5 CFR 890.1003; 42 CFR 1001.2.
TSA is adding a definition for ``imprisoned or imprisonment,''
which is a new term used in Sec. 1572.107. It means confined to a
prison, jail, or institution for the criminally insane, on a full-time
basis pursuant to a sentence imposed as the result of a criminal
conviction or finding of not guilty by reason of insanity. Time spent
confined or restricted to a half-way house, treatment facility, or
similar institution pursuant to a sentence imposed as the result of a
criminal conviction or finding of not guilty by reason of insanity does
not constitute imprisonment for purposes of this rule. TSA added this
term to cover instances in which we believe time spent in a half-way
house or treatment facility should not be relevant to determining
whether a driver poses a security threat.
``Initial Determination of Threat Assessment'' means an initial
administrative determination by TSA that an individual poses a security
threat that warrants denial of the authorization to transport hazardous
materials. An Initial Determination may be administratively appealed.
We are changing this term to ``Initial Determination'' from ``Initial
Notification,'' to reflect more accurately the action being taken. In
addition, the words ``the authorization for which the individual is
applying'' have been deleted to make the language clearer.
``Initial Determination of Threat Assessment and Immediate
Revocation'' means an initial administrative determination that an
individual poses a security threat that warrants immediate revocation
of an HME. Upon issuance of this document, the State must immediately
revoke the hazmat endorsement. The driver has an opportunity to appeal
this determination, but the appeal transpires after the revocation has
occurred. TSA will issue this document only where we believe the driver
may pose an imminent threat to transportation, national security, or
other individuals. We are adding this definition to distinguish the
notification documents used in an immediate revocation from the more
common Initial Determination process.
``Lawful permanent resident'' means an individual who has been
lawfully admitted for permanent residence in the United States, as
defined in 8 U.S.C. 1101. In the statute, ``lawfully admitted for
permanent residence'' means ``the status of having been lawfully
accorded the privilege of residing permanently in the United States as
an immigrant in accordance with the immigration laws, such status not
having changed.'' The language in this definition has been changed
slightly from the Current Rule,
[[Page 68731]]
but substantively, the meaning is the same.
``Mental institution'' means a mental health facility, mental
hospital, sanitarium, psychiatric facility, and any other facility that
provides diagnoses by licensed professionals of mental retardation or
mental illness, including a psychiatric ward in a general hospital.
This definition is taken from standards concerning individuals with a
mental disability, which ATF promulgated at 27 CFR 478.11. This
definition is the same one used in the Current Rule. We are using this
ATF definition because we are implementing standards concerning mental
capacity and the authorization to transport explosives and other
hazmat, which ATF previously administered before TSA published the
Current Rule.
The term ``pilot state'' is defined here as a State that chooses to
volunteer to begin the complete security threat assessment process
prior to January 1, 2005. This definition is used in the Current Rule.
``Revoke'' means the process by which a State cancels, rescinds,
withdraws or removes a hazardous materials endorsement. This definition
is revised to include all terms a State may have in its statute that
are equivalent to the term ``revoke.'' Several States commented that
the local statute does not use ``revoke'' and asked that we include
other terms consistent with the State statute to ensure that a State
does not violate its own statute when it revokes or rescinds a
hazardous materials endorsement. TSA's interest is in the cessation of
a driver's right to carry hazardous materials, and not to impact the
driver's ability to maintain his commercial drivers license.
``State'' means a State of the United States and the District of
Columbia. This definition is taken from The Commercial Motor Vehicle
Safety Act of 1986, 49 U.S.C. 31301(14), which created the CDL program.
This has not changed from the Current Rule.
``Transportation security incident'' means a security incident
resulting in a significant loss of life, environmental damage,
transportation system disruption, or economic disruption in a
particular area. This definition is taken from the Maritime
Transportation Security Act (MTSA) (46 U.S.C. 70101). This definition
has the same meaning as the definition used in the Current Rule, but is
now consistent with the actual legislative language. TSA used ``severe
transportation security incident'' in the Current Rule to make clear
that the incident must result in significant damage, disruption, or
loss of life to be a disqualifying offense in the hazmat program. TSA
is making the change to use the actual legislative language to make the
IFR consistent with the statute.
``Withdrawal of Initial Determination of Threat Assessment'' is the
document TSA issues to an applicant when the security threat assessment
process initially indicates that an applicant may pose a security
threat, but on appeal, TSA determines that the person does not pose a
security threat. For instance, mistaken identity or incomplete court
records may have led to an incorrect initial determination.
Section 1572.5 Scope and Standards for Hazardous Materials Endorsement
Security Threat Assessment
This section describes the individuals and entities subject to the
requirements in Subpart A and the standards those individuals must
meet.
Subpart A applies to State agencies that are responsible for
issuing commercial drivers licenses and HMEs, and applicants who hold
or apply for a new, renewal or transfer HME.
The standards TSA applies to determine whether an individual poses
or is suspected of posing a security threat that warrants denial of an
HME have been established by statute, the USA PATRIOT Act and the Safe
Explosives Act. For the purposes of this IFR, an applicant does not
pose a security threat if he or she (1) does not have a disqualifying
criminal offense described in Sec. 1572.103; (2) meets the immigration
status requirements described in Sec. 1572.105; (3) does not pose a
security threat as described in Sec. 1572.107; and (4) has not been
adjudicated as lacking mental capacity as described in Sec. 1572.109.
This paragraph also explains that the security threat assessment will
be based on the individual's fingerprints, name, and other identifying
information.
Section 1572.7 Waivers of Hazardous Materials Endorsement Security
Threat Assessment Standards
This section describes the individuals who may apply to TSA for a
waiver. Applicants who have been convicted of certain criminal offenses
and those who have been declared mentally incompetent in the past may
apply for a waiver. Individuals convicted of treason, sedition,
espionage, a crime involving a transportation security incident, and a
crime of terrorism are not eligible for a waiver from TSA. This is a
change from the Current Rule, which TSA believes is appropriate given
the severity and level of risk these crimes reflect. Individuals who do
not meet the immigration standards in Sec. 1572.105 may not apply for
a waiver. There is no circumstance or set of facts under which TSA
would wish to suspend the application of the lawful immigration
categories listed in section 105 to issue a waiver. Additionally, if
TSA determines that an individual does not meet the standards in Sec.
1572.107, the applicant is not eligible for a waiver. Granting a waiver
to an individual determined to pose a security threat would undermine
the purpose of this rule and the statutes that gave rise to it.
Section 1572.9 Applicant Information Required for a Security Threat
Assessment for a Hazardous Materials Endorsement
This section describes all of the identifying information an
applicant must provide in order for TSA to complete the fingerprint-
and intelligence-related checks. The State is required to retain the
information for one year, in either paper or electronic form. If the
State opts to collect fingerprints and the applicant information, the
State must submit applicant information to TSA electronically and the
fingerprints to the FBI. If the State chooses to have TSA do the
collection, the TSA agent will collect and retain the information,
provide a copy of the application to the State, and submit the
fingerprints to the FBI. We are requiring essentially the same
information as is required in Sec. 1572.5(e) of the Current Rule, but
we now add the requirement to provide the applicant's physical
identifying information, including hair and eye color, height and
weight. Also, we are now requiring the applicant's mailing address, if
it differs from the residential address, to facilitate delivering all
notifications to the proper location. Finally, we are requesting the
name and address of the applicant's current employer(s) so that TSA can
notify the employer if a driver poses a security threat and is no
longer authorized to transport hazmat.
This section also requires the applicant to acknowledge and certify
that he or she meets the standards described in the application and
does not have any of the disqualifying offenses. The applicant's
certification is given under penalty of law-- any false statement or
misrepresentation may result in criminal prosecution.
Section 1572.11 Applicant Responsibilities for a Security Threat
Assessment for a Hazardous Materials Endorsement
This section describes the standards with which each applicant must
comply and the actions the applicant must take
[[Page 68732]]
in order to hold an HME. The requirements in this section are found in
Sec. 1572.5(b) of the Current Rule. As of September 2, 2003, current
HME holders have been required to surrender the endorsement if the
individual does not meet the standards described in the Current Rule.
Also, applicants have an ongoing responsibility to report any violation
of the standards to TSA and surrender the HME within 24 hours of the
violation. Paragraph (d) of this section provides that the applicant
may submit fingerprints to prove identity or disprove an adverse
finding following the intelligence-related check, and must submit
fingerprints when applying to obtain or renew an HME. With respect to
transferring an HME when a driver changes residences, the driver is not
required to undergo a security threat assessment in the new State until
the term of years required in the driver's previous State of residence
expires.
On October 1, 2003, legislation was enacted requiring TSA to
collect reasonable fees to cover the costs of providing credentialing
and background investigations in the transportation field, including
implementation of the USA PATRIOT Act requirements.\21\ As a result,
TSA has initiated a proposed rulemaking to determine the reasonable
fees that are necessary to cover each phase of TSA's security threat
assessment. Paragraph (d)(3) refers to this fee authority and states
that the fee TSA may charge in order to cover the cost of the security
threat assessment must be paid by the employee or employer. It is
important to note that this does not refer to any fees the States may
charge to recover their costs, or the fees that the FBI has established
to complete the search.
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\21\ 2004 Department of Homeland Security Appropriations Act,
Section 520, Pub. L. 108-90, October 1, 2003, 117 Stat. 1137.
---------------------------------------------------------------------------
Section 1572.13 State Responsibilities for Issuance of Hazardous
Materials Endorsement
This section lists all of the responsibilities that the States must
perform in order to ensure that only individuals who meet the security
threat assessment standards receive a hazmat endorsement. These
requirements are very similar to the requirements in the Current Rule.
Paragraph (a) provides that each State must immediately revoke an
individual's hazardous materials endorsement if TSA informs the State
that the individual does not meet the standards for security threat
assessment in Sec. 1572.5. This provision is intended to address
situations in which TSA becomes aware of an individual who may pose an
immediate threat and should not be transporting hazardous materials.
TSA envisions that this procedure will not occur frequently, but the
States must be prepared to revoke an HME quickly if such an individual
comes to TSA's attention. Any individual HME holder who falls into this
category may appeal this action, as described in Sec. 1572.141(i).
Paragraph (b) provides that as of January 31, 2005, for new HMEs
and on May 31, 2005, for renewal and transfer HMEs, no State may issue
or renew an HME for a CDL unless the State receives a Determination of
No Security Threat from TSA. This IFR provides the later date for HME
renewals and transfers in recognition of the States' need for
additional time and resources to implement this program. TSA has
completed a name-based check on all current HME holders and reruns this
list periodically. TSA has disqualified those individuals that pose a
security threat. Therefore, TSA has determined that staggering the
implementation should not adversely impact security.
In addition, at least 60 days prior to the expiration date of the
individual's endorsement, the State must notify each individual holding
a hazardous materials endorsement issued by that State that he or she
will be subject to the security threat assessment described in this
part as part of an application for renewal of the endorsement. The
notice must inform the individual that he or she may initiate the
security threat assessment required by this part at any time after
receiving the notice, but no later than 30 days before the expiration
date of the individual's endorsement. If the individual does not
initiate the security threat assessment at least 30 days before the
expiration, their HME may expire before the security threat assessment
is complete.
The timelines described in paragraph (b) have been shortened from
the 180/90-day notification deadlines in the Current Rule as a result
of comments received from the States and TSA's reconsideration of this
requirement. Initially, TSA established the 180/90-day notification
requirements in order to provide HME holders sufficient time to seek
other employment if they believe they may be disqualified. However, now
that the driver self-reporting requirement in Sec. 1572.11 is in
effect (as of September 2, 2003) those drivers must surrender their
endorsement and may seek a waiver under Sec. 1572.143.
Representatives of the trucking industry have expressed concern
that shortening this advance notice time period from 180 days to 60 may
not provide drivers enough time to complete the security threat
assessment before the HME expires. If a driver begins the assessment 60
days prior to expiration of his HME, but receives an adverse initial
finding, appeals it and then applies for a waiver, companies fear that
drivers will not be available to transport hazmat because the HMEs will
expire prior to completion of the appeal and waiver processes. Nothing
in the rule prohibits the State, employer, or driver from beginning the
security threat assessment more than 60 days prior to expiration of the
HME. If a State, driver, or employer wishes to start the process
earlier, they may do so.
In addition, TSA is adding paragraph (b)(3), which provides that
the States may not begin processing renewal and transfer applicants
prior to March 31, 2005'60 days before the fingerprint start date for
renewal and transfer applicants. TSA is adding this requirement to
ensure that TSA and State resources will be focused on new applicants
as the nationwide implementation begins. TSA believes this requirement
may minimize process, paperwork, and computer problems that are more
likely to occur when a program of this size first begins.
Paragraph (c) provides that a State may volunteer to begin the
security threat assessment program prior to January 31, 2005, if TSA
approves the process the State intends to use. These Pilot States may
not revoke, issue, renew or transfer a hazardous materials endorsement
for a CDL unless the Pilot State: (1) collects the information required
in Sec. 1572.9; (2) collects and submits fingerprints in accordance
with procedures approved by TSA; and (3) receives a Determination of No
Security Threat or Final Determination of Threat Assessment from TSA.
This provision appeared in the Current Rule and is intended to address
any State that is ready to proceed prior to January 2005.
Paragraph (d) provides that a State may extend the expiration date
of the HME for 90 days if TSA has not provided a Final Determination of
Threat Assessment or Determination of No Security Threat before the
endorsement expires. Any additional extensions must be approved in
advance by TSA. This requirement appears in the Current Rule and TSA
believes it is necessary to ensure that no applicant loses his or her
HME due to unforeseen delays in the TSA or State process. For instance,
if TSA or a State knows that a computer problem has developed that will
delay a batch of background check data, the rule provides a mechanism
for the State to extend the driver's HME. We are adding the 90-day
extension limit in the IFR to ensure that an
[[Page 68733]]
applicant's HME is not extended indefinitely. TSA believes this time
limit should also prevent miscommunication between TSA and the State.
For instance, the State may send the appropriate information to TSA and
assume TSA is conducting the security threat assessment, but the
documents are lost or misidentified and the security threat assessment
is not underway. Also, if TSA issues its Determination, but the State
does not receive it for some reason, the rule requires communication
between TSA and the State to resolve the delay.
Paragraph (e) requires the State to update the driver's permanent
record with the results of the security threat assessment and the new
expiration date of the HME; notify CDLIS of the results; and revoke or
deny the HME within 15 days after receiving TSA's Determination of No
Security Threat or Final Determination of Threat Assessment. These
actions include updating the applicant's record; notifying CDLIS of the
results of the security threat assessment; and revoking or denying the
HME based on the results of the check. The rule requires the States to
take these actions within 15 days after receipt of the Final
Determination of Threat Assessment or the Determination of No Security
Threat.
The IFR does not require the State to ``issue'' an HME within 15
days when the applicant successfully completes the security threat
assessment, as the Current Rule did. TSA received comments from many
States and their Association concerning the extreme hardship this
restriction would place on the current licensing systems. In the
States' current CDL and HME issuance systems, the renewal periods and
expiration dates are tied to the driver's date of birth. All of the
States would be required to make major changes to computer systems that
contain the CDL and HME data if the expiration date must be tied to the
date of issuance rather than date of birth. Technically, the State can
deliver the HME to the driver within 15 days after TSA's notification,
but its expiration date would run from the driver's birth date, not the
date of issuance, as required in the Current Rule. TSA has concluded
that the expense and disruption these substantive changes would cause
outweigh any advantage gained by having the expiration dates stem from
the date of issuance rather than a driver's date of birth. TSA will
monitor this process and take additional regulatory action if needed.
New paragraph (f) provides that each State must notify TSA in
writing as to whether the State wishes to have TSA collect and submit
applicant information and fingerprints, or whether the State plans to
undertake this responsibility. TSA must have each State declaration on
or before December 27, 2004 and the declaration will remain in place
until January 31, 2008, unless otherwise authorized by TSA. Throughout
this rulemaking proceeding, approximately half of the States have
indicated the desire to collect applicant fingerprints and information,
and have the equipment, personnel, and funds to do so. Therefore, TSA
is offering this choice to accommodate those State interests. For all
other States, TSA, through an agent, will complete these tasks using
TSA resources and the user fee collected for this purpose. The States'
written declaration must be sent to the Hazmat Program Manager, TSA
Credentialing Office, 601 S. 12th St., Arlington, VA 22202.
For TSA to prepare adequately to oversee and administer the
fingerprint collection process, and so that any TSA agent can
accurately assess costs, TSA must know how many States will complete
these collections and how many will opt for TSA to perform these
responsibilities. To develop accurate cost estimates necessary to
determine the user fee TSA will charge to the applicant or employer,
TSA and its agent must assess start-up and operational costs over a
period of time. Therefore, the selection each State makes will remain
in place until January 31, 2008 unless otherwise authorized by TSA. TSA
believes that a shorter time period is not adequate to assess
implementation costs on how many collection sites are needed, how much
equipment and personnel will be necessary, the time it will take to
collect prints in the large versus small States, and other operational
issues. Finally, if TSA does not receive a written declaration from a
State, TSA and its agent will assume responsibility for the collection
and submission process for that State.
It is also important to note that if the State elects to collect
applicant fingerprints and information, the State will gather the
information that is required by the rule when the driver appears to
provide fingerprints and initiate the process. The State must then
forward the information to TSA electronically through CDLIS, the
fingerprints to the FBI, and the corresponding fees to TSA and the FBI.
As stated above, TSA is willing to assist with the electronic
transmission of the information for a short period of time to give
States enough time to upgrade their computer systems to perform
electronic transfers routinely. TSA can devote resources to entering
the data manually for a few months as long as the State is in the
process of upgrading their system. If the State cannot complete the
upgrade by July 2005, then the State should elect to have TSA capture
fingerprints and information.
If TSA's agent collects applicant information and fingerprints, TSA
will require the TSA agent to collect and remit to TSA the FBI's fee
and TSA's threat assessment fee, in a form and manner approved by TSA.
Also, the FBI will bill TSA on a monthly basis for the fingerprints
submitted by TSA through TSA's agent and processed by the FBI. This
process is discussed in the fee NPRM as well.
Depending on how many States elect to have TSA complete the
fingerprint collection program and where they are located, drivers
licensed in States that opt to have TSA collect fingerprints may be
able to submit their fingerprints at any location where TSA has
established a collection facility. For instance, if a driver in State A
is working outside State A when it is time to submit fingerprints and
information and State A elected to have TSA collect fingerprints, the
driver may submit fingerprints at a TSA collection site that is much
closer to where he is working at the time. In States that opt to do the
collection, drivers will most likely have to submit the required
information at a State collection point.
As discussed earlier in this document, TSA is conducting a parallel
proposed rulemaking to address the amount of the fee that TSA intends
to charge for the security threat assessment. TSA encourages all
interested parties to follow and participate in that proceeding to
assist TSA in developing reasonable, accurate fees.
TSA is adding a new paragraph (g) to this section in response to
comments received from State DMVs and individual drivers concerning HME
transfers. Pursuant to the FMCSA rules, drivers who change their State
of residence must register with the new State of residence within 30
days and apply for a transfer HME. 49 CFR 383.71(b). Drivers and the
DMV offices questioned whether a new security threat assessment is
necessary each time a driver moves to another State, regardless of when
the previous threat assessment occurred. TSA agrees that requiring a
new threat assessment each time a driver moves is burdensome and
unnecessary. Therefore, the rule now permits a transferring HME holder
to forego a new security threat assessment in the new State of
residence until the
[[Page 68734]]
renewal period established in the preceding issuing State expires.
Paragraph (h) provides that each State must retain all applicant
information collected for the security threat assessment for at least
one year. TSA believes this requirement is necessary to ensure that the
information is available if questions or appeals arise in the course of
the security threat assessment. The States, as licensing bodies,
currently keep some of this information now as part of the commercial
drivers license and HME program. The State may keep this information in
paper or electronic form.
Section 1572.15 Procedures for Security Threat Assessment
This section describes the security threat assessment process in
detail, and provides that no State can issue an HME unless the steps
outlined in this section have been completed. The process includes the
fingerprint-based check, an intelligence-related check, and a final
disposition.
The fingerprint-based check covers an individual's criminal history
to determine whether the applicant has been convicted of or
incarcerated for a disqualifying felony under Federal, State, or local
law. In addition, TSA can review databases related to an applicant's
dishonorable discharge from the armed service, if any, during this
phase of the security threat assessment, which may indicate whether the
applicant has a disqualifying military conviction. This check requires
collecting fingerprints and applicant information, and submitting the
prints to the FBI and the information to TSA.
The intelligence-related check involves the use of an applicant's
biographical and identification information that is collected during
the HME application process. This check searches for potential
terrorist activity, immigration status, and mental incompetency. In
many cases, only certain Federal agencies are authorized to access the
pertinent databases to complete these checks, and some of these
databases may be classified.
Once TSA has received the results of the fingerprint- and
intelligence-related checks, TSA reviews them to determine if the
individual meets the security threat assessment standards. If the
applicant meets the standards, TSA will notify the State with a
Determination of No Security Threat for the applicant. Once the State
receives this Determination, it issues or renews the HME.
If TSA determines that an applicant does not meet the standards for
holding an HME, TSA issues an Initial Determination of Threat
Assessment to the applicant. The Initial Determination includes the
basis for the determination; instructions on how the individual may
appeal the finding; and a statement that if the applicant does not
appeal the finding, the Initial Determination becomes a Final
Determination of Threat Assessment, which cannot be appealed. If the
applicant does not appeal the finding, TSA notifies the issuing State,
and the State cannot issue, renew, or transfer the applicant's HME.
If an applicant appeals the Initial Determination, but the appeal
does not overturn the Initial Determination, TSA notifies the State and
applicant with a Final Determination of Threat Assessment. However, if
TSA determines that the Initial Determination was inaccurate (due to
incomplete court records, for instance) and grants the appeal, TSA
issues a Withdrawal of the Initial Determination of Threat Assessment
to the applicant and a Determination of No Security Threat to the
State.
This IFR now includes details of the process involved when an
immediate revocation occurs. The State must immediately revoke an HME
when so notified by TSA. TSA will issue an Initial Determination of
Threat Assessment and Immediate Revocation when TSA's security threat
assessment indicates that a driver may pose an imminent threat to
national or transportation security. This issuance may also occur when
an individual has a disqualifying offense, but has not surrendered his
endorsement, as required by the rule. Under this procedure, the
individual's HME is revoked immediately and he may appeal the
revocation afterward. Also, if TSA does not receive an appeal of an
Initial Determination of Threat Assessment and Immediate Revocation
within the prescribed time periods, the Initial Determination becomes
final. If TSA grants the appeal, TSA will issue a Withdrawal of the
Initial Determination to the applicant and Determination of No Security
Threat to the State.
It is important to note that TSA may begin the final disposition
phase of the threat assessment process after receiving adverse
information from the fingerprint- or intelligence-related portion of
the check, even if both checks are not complete. For instance, if TSA
obtains the results of an intelligence-related check before the
fingerprint-based check, and the information identifies the applicant
as a terrorist, TSA may issue its Initial and Final Determinations
before the fingerprint check is complete. There is no reason to wait
for all information to become available if the information in hand is
disqualifying. We do not anticipate that this scenario will occur
often.
An applicant may appeal an adverse finding due to the fingerprint-
or the intelligence-related checks. This process will often be a
``correction of records'' because the basis of the appeal is that the
records on which TSA relied are not accurate or involve a different
individual. In the case of an appeal of the intelligence-related check,
the data or documents that gave rise to the adverse finding may be
classified or otherwise protected by law, in which case TSA cannot
release the document or information. However, TSA will make every
effort to provide as much information to the applicant as the law
permits to facilitate a meaningful appeal.
Certain applicants disqualified from holding an HME may request a
waiver of the standards. Individuals who commit certain disqualifying
offenses or have a history of mental incapacity are eligible to apply
for a waiver. Individuals identified as posing a threat under Sec.
1572.107 or do not fall within the lawful immigration categories listed
in the IFR are not eligible for a waiver.
TSA uses the term ``serves'' in the rule text for the process by
which TSA will notify the States and applicants of the security threat
assessment determinations. The definition of ``date of service'' in
Sec. 1572.3 includes the date of personal delivery; the mailing date
shown on a certificate of service; 10 days from the date of mailing if
there is no certificate of service; another mailing date shown by other
evidence if there is no certificate of service or postmark; or the date
on which an electronic transmission is sent.
TSA and the States have discussed the benefits of communicating
this sort of information electronically, and so ``serve'' may include
uploading the notifications to the State on a secure website. This
method of communication would save time, paper, and money, and furthers
the e-government movement. However, there may be instances in which a
State would prefer to receive a determination in hard copy, and so TSA
invites comment from the States on this issue.
TSA has some concern about the potential difficulty in providing
notice to a driver who may be on the road for weeks at a time. The
information required in Sec. 1572.9 requests the applicant's mailing
address if it differs from the residential address. Drivers should be
careful when completing the application to provide the address that is
best for appropriate notice from the State and TSA. We have amended the
[[Page 68735]]
definition of ``date of service'' to underscore that TSA will use the
address given on the application for service of documents. We invite
comment on this issue from drivers and their associations as to how
this concern can be minimized.
Once the fingerprint- and intelligence-related checks are complete,
paragraph (d) explains the actions TSA will take to conclude the
assessment.
Section 1572.103 Disqualifying Criminal Offenses
Congress did not specify in the USA PATRIOT Act the criminal
offenses that TSA must use to determine whether a person poses a
security risk warranting denial of an HME. TSA considered the crimes
listed in 49 U.S.C. 44936, which include misdemeanors and felonies, for
individuals who have unescorted access to secured areas of airports or
aircraft, security screeners, and other aviation personnel.
However, TSA included only felonies, and felonies that constitute
the most serious crimes as disqualifying. The list includes crimes that
demonstrate an individual's willingness to commit violent acts against
others for personal reasons, such as murder or assault with intent to
murder. The list also includes the crime of smuggling contraband. TSA
is concerned with the possibility that such an individual could be
involved intentionally, or may be used unwittingly by others with
malicious intent, in transporting items that could be used to commit
terrorist acts. The listed offenses are considered grounds for
disqualification whether they are prosecuted by civilian or military
authorities. If an applicant has a disqualifying criminal offense, but
believes that under the particular circumstances of the offense the
applicant should not be determined to pose a security threat, the
applicant may request a waiver under Sec. 1572.143.
This IFR makes changes to the Current Rule's list of crimes that
disqualify an applicant for life from holding an HME. The Current Rule
lists espionage, sedition, treason, arson, crimes involving a
transportation security incident, improper transportation of a
hazardous material under 49 U.S.C. 5124, any crime listed in 18 U.S.C.
chapter 113B--Terrorism, and conspiracy or attempt to commit the crimes
in paragraph 1572.103(a) as permanently disqualifying. TSA is
reclassifying arson as an interim rather than permanent disqualifying
offense. As discussed in greater detail above, TSA has concluded that
an arson conviction does not typically present the same level of threat
as a conviction for treason or espionage and is more analogous to the
interim disqualifying offenses. Also, the IFR now makes a RICO
conviction based on an underlying permanent disqualifying offense a
permanently disqualifying offense. The Current Rule lists as
permanently disqualifying the ``unlawful possession, use, sale,
distribution, or manufacture of an explosive.'' We now add ``purchase,
receipt, transfer, shipping, transporting, delivery, import, export of,
or dealing in an explosive or explosive device'' to this list, because
these additional actions regarding explosives are equally serious. TSA
is reclassifying murder as a permanent rather than interim
disqualifying offense. We believe it is more analogous to the other
permanently disqualifying offenses in terms of the security threat it
presents.
Under the Current Rule, individuals who have been convicted within
the preceding seven years of, or incarcerated within the preceding five
years for a criminal offense listed in Sec. 1572.103(b), are
disqualified until the seven- or five-year time period ends, whichever
is later. In the Current Rule, the offenses in paragraph 1572.103(b)
are murder; assault with intent to murder; kidnapping or hostage
taking; rape or aggravated sexual abuse; unlawful possession, use,
sale, purchase, distribution, or manufacture of a firearm or other
weapon; extortion; dishonesty, fraud, or misrepresentation, including
identity fraud; bribery; smuggling; immigration violations; violations
of the Racketeer Influenced and Corrupt Organizations Act; 18 U.S.C.
1961, et seq.; robbery; and distribution of, intent to distribute, or
importation of a controlled substance.
This IFR amends the list of interim disqualifying offenses in
several ways. The Current Rule lists as disqualifying the ``unlawful
possession, use, sale, distribution, or manufacture of a firearm or
other weapon.'' We now add ``purchase, receipt, transfer, shipping,
transporting, delivery, import, export of, or dealing in a firearm or
other weapon'' to this list, because these additional actions regarding
a weapon are equally serious. Second, we are removing ``simple
possession'' of a controlled substance as disqualifying and making
clear that ``possession with intent to distribute a controlled
substance'' remains a disqualifying offense. TSA makes this change to
ensure that only the most serious offenses, including those
demonstrating a willingness to endanger others, are considered
disqualifying. TSA is reclassifying arson as an interim rather than
permanent disqualifying offense, as it is in the Current Rule. Finally,
TSA is reclassifying murder as a permanently rather than interim
disqualifying offense.
We note, as discussed when this rule first was adopted, that this
rule cannot possibly list all of the offenses or other information that
may be relevant to determining whether an individual poses a security
threat that merits denial of a hazardous materials endorsement.
Therefore, under Sec. 1572.107, TSA may consider other criminal
offenses and information not listed in Sec. 1572.103, if they indicate
the individual poses a security threat. TSA believes these changes in
Sec. 1572.107 clarify the extent of TSA's discretion. See 68 FR 23852
at 23861 col. 2-3.
TSA invites comment from all interested parties concerning this
list of disqualifying criminal offenses. TSA must balance its
responsibility to enhance the security of hazardous materials
transportation against the knowledge that individuals who participate
in criminal acts may subsequently become valuable members of the
workforce. TSA wishes to minimize the adverse impact this program may
have on individuals who have committed criminal offenses and served
their sentences, without compromising the security of hazardous
materials in transportation. Therefore, with limited exceptions, only
convictions within the seven years prior to the date of the application
to apply or renew a hazardous materials endorsement, or incarcerations
that ended within five years prior to the date of application, will
disqualify an individual. This approach is consistent with the
requirements of MTSA.
Paragraph (c) states that an applicant who is under a want or
warrant for any of the disqualifying offenses is disqualified until the
want or warrant is released. TSA will adjudicate these cases and notify
appropriate law enforcement agencies and the State. TSA will review the
want and warrant records carefully to determine the nature of the
charge, and if it does not involve a disqualifying offense, but is
indicative of a serious criminal act, TSA may notify law enforcement
pursuant to Sec. 1572.107, discussed below.
Paragraph (d) describes how an arrest with no indication of a
conviction, plea, sentence or other information indicative of a final
disposition must be handled. The individual must provide TSA with
written proof that the arrest did not result in a disqualifying
criminal offense within 45 days after the date TSA notifies the
individual. If TSA does not receive such proof in 45 days, TSA will
notify the applicant and the State that
[[Page 68736]]
the applicant is disqualified from holding an HME.
Section 1572.105 Immigration Status
The USA PATRIOT Act and SEA require a check of the relevant
databases to determine the applicant's status under U.S. immigration
laws prior to authorizing the applicant to transport hazmat. In
addition, longstanding rules concerning the qualifications needed to
hold a CDL provide that the driver must have a State of domicile in the
United States or hold a nonresident CDL.\22\ The Current Rule requires
applicants for an HME security threat assessment to be U.S. citizens or
lawful permanent residents. As discussed in greater detail above, in
this IFR, TSA expands the group eligible to apply for an HME security
threat assessment to include individuals who are qualified to hold a
CDL, but who are not U.S. citizens or lawful permanent residents. This
group includes nonimmigrant aliens, asylees, and refugees, who are in
lawful status and possess valid and unrestricted documentation
establishing eligibility for employment. These changes are reflected in
paragraph (a) of this section. TSA is making one additional change to
paragraph (a)(1) of this section by adding that an applicant must be a
citizen who has not renounced ``or lost'' his or her citizenship. TSA
is adding this language to cover instances in which a citizen is
stripped of U.S. citizenship, as is the case with Nazi war criminals.
It is unlikely that this situation will arise in the context of hazmat
drivers, but TSA wishes to make certain that the rule covers instances
in which it does occur.
---------------------------------------------------------------------------
\22\ 49 CFR 384.212.
---------------------------------------------------------------------------
To determine an individual's immigration status, TSA checks the
relevant immigration databases, and may perform other checks, including
verifying the applicant's identity and Social Security Number.
Section 1572.107 Other Analyses
Section 1012 of the USA PATRIOT Act requires background checks of
relevant international databases, such as Interpol-U.S. National
Central Bureau, or other appropriate sources. TSA checks these
databases and other databases that include information on terrorists
and terrorist activity, violent gangs, fugitives from justice, and
international criminal records. TSA may also check databases that
assist in confirming an individual's identity. This IFR provides that
TSA will check the following databases, and conduct a security threat
analysis, before determining whether an individual poses a security
threat: (1) Interpol and other international databases as appropriate;
(2) terrorist watchlists and related databases; and (3) other databases
relevant to determining whether an individual may pose or poses a
security threat or that confirm an individual's identity.
New paragraph (c) also states that TSA may determine that an
individual poses a security threat if the search TSA conducts under
part 1572 reveals an extensive or very serious domestic or foreign
criminal history, conviction for serious crimes not listed in Sec.
1572.103, or an extensive period of imprisonment, foreign or domestic,
exceeding 365 consecutive days. TSA is adding this language to the rule
text to clarify the full application of this section and to provide
sufficient notice to the public that there may be cases in which an
applicant's criminal record includes convictions for serious crimes
that are not specifically listed in Sec. 1572.103, but may be
disqualifying. Also, if an applicant has been imprisoned for more than
a year, which is generally indicative of a serious offense or a long
history of criminal activity, TSA may determine that the applicant
poses an unacceptable security threat. We use the term ``imprisoned''
in the new language, which is indicative of a more serious criminal
sentence; time sentenced to a half-way house or treatment facility is
not used to calculate the period of ``imprisonment,'' as it is with
respect to ``incarceration.''
As TSA noted in the May 5 IFR, we cannot possibly list all of the
offenses or other information that may be relevant to determining
whether an individual poses a security threat that warrants denial of a
hazardous materials endorsement. The preamble of the May 5 IFR stated
that, under Sec. 1572.107, TSA may consider other criminal offenses
and information not listed in Sec. 1572.103, if they indicate the
individual poses a security threat. See 68 FR 23852 at 23861. The rule
text for Sec. 1572.107 clearly states this authority. TSA believes we
must have a level of discretion to carry out the intent of the USA
PATRIOT Act and responsibly assess threats to transportation and the
Nation, where the intelligence and threats are so dynamic. TSA
understands that the flexibility this language provides must be used
cautiously and on the basis of compelling information that can
withstand judicial review. TSA invites comment on this section.
Section 1572.109 Mental Capacity
The explosives laws prohibit individuals who have been adjudicated
as lacking mental capacity (``mental defect'' is used in the statutory
language, but we use ``lacking mental capacity'' in the IFR because it
is less pejorative, but has and is intended to have the same meaning)
from transporting explosives. This IFR will implement this requirement
by providing that any person who has been determined to lack mental
capacity does not meet the standards for a security threat assessment.
This section adopts the terms and standards concerning individuals with
mental disabilities promulgated by ATF:
The legislative history of the GCA [Gun Control Act of 1968]
makes it clear that a formal adjudication or commitment by a court,
board, commission or similar legal authority is necessary before
firearms disabilities are incurred. H.R. Rep. 1956, 90th Cong., 2d
Sess. 30 (1968). The plain language of the statute makes it clear
that a formal commitment, for any reason, e.g., drug use, gives rise
to firearms disabilities. However, the mere presence of a person in
a mental institution for observation or a voluntary commitment to a
mental hospital does not result in firearms disabilities.\23\
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\23\ 61 FR 47095, September 6, 1996.
ATF also cited several cases in which courts held that the GCA was
designed to prohibit the receipt and possession of firearms by
individuals who are potentially dangerous, including individuals who
are mentally incompetent or afflicted with a mental illness, and
individuals found not guilty by reason of insanity in a criminal
case.\24\ Finally, ATF added to the definition of ``adjudicated as
mental defective'' an element from the Department of Veterans Affairs
definition of ``mental incompetent'' an individual who because of
injury or disease lacks the mental capacity to contract or manage his
or her own affairs.\25\
---------------------------------------------------------------------------
\24\ Id.
\25\ Id.
---------------------------------------------------------------------------
An individual lacks mental capacity, for purposes of this IFR, if
he or she has been committed to a mental institution or has been
adjudicated as lacking mental capacity. An individual is adjudicated as
lacking mental capacity if a court or other appropriate authority
determines that the individual is a danger to himself or herself, or
lacks the mental capacity to manage his or her affairs. An individual
is ``committed to an institution'' if formally committed by a court;
this term does not refer to voluntary admissions to a mental
institution or hospital. This standard is in the Current Rule and the
IFR.
[[Page 68737]]
Section 1572.111-1572.139 [Reserved]
Section 1572.141 Appeal Procedures
An individual may appeal an Initial Determination of Security
Threat if he asserts that he meets all standards for the security
threat assessment. For example, if the Initial Determination was based
on information indicating that the applicant is an alien who is not in
the United States lawfully, the applicant may provide TSA with evidence
that the immigration record is inaccurate in an appeal.
An applicant initiates an appeal by providing TSA with a written
request for the releasable materials upon which the Initial
Determination was based, or by serving TSA with his or her written
reply to the Initial Determination. If an applicant wishes to receive
copies of the releasable material upon which the Initial Determination
was based, he must serve TSA with a written request within 30 days
after the date of service of the Initial Determination. TSA's response
is due within 30 days. In response, TSA cannot provide any classified
information, as defined in Executive Order (E.O.) 12968, or any other
information or material protected from disclosure by law.
If an applicant wishes to reply to the Initial Determination, he or
she must provide TSA with a written reply no later than 30 days after
the date of service of the Initial Determination or the date of service
of TSA's response to the applicant's request for materials. The
applicant should explain why he or she is appealing the Initial
Determination and provide evidence that the Initial Determination was
incorrect. In an applicant's reply, TSA will consider only material
that is relevant to whether he or she meets the standards for the
security threat assessment. If an applicant does not dispute or reply
to the Initial Determination, the Initial Determination becomes a Final
Determination.
Under paragraph (c)(3) of this section, an applicant has the
opportunity to correct a record on which an adverse decision is based.
So long as the record is not classified or protected by law from
release, TSA will notify the applicant of the adverse information and
provide a copy of the record. If the applicant wishes to correct the
inaccurate information, he or she must provide written proof that the
record is inaccurate. The applicant should contact the jurisdiction
responsible for the inaccurate information to complete or correct the
information contained in the record. The applicant must provide TSA
with the revised record or a certified true copy of the information
from the appropriate entity before TSA can reach a determination that
the applicant does not pose a security threat that warrants denial of
the HME.
The Director will make the Final Determination on appeals that
involve disqualifying criminal offenses, mental capacity, and
immigration status. However, in a case where an Initial Determination
of Threat Assessment is based on the applicant's connection to
terrorist activity or similar threat under Sec. 1572.107, the
Assistant Secretary will review the appeal and make the Final
Determination. This procedure is a change from the Current Rule that
TSA believes is necessary to provide additional scrutiny for cases that
will likely involve a review of classified information that the
applicant is not permitted to see under law. In addition, the applicant
in these cases is not eligible for a waiver of the standards if the
Initial Determination stands. TSA believes that the review by the
Assistant Secretary for these cases provides an additional protection
that the agency's Final Determination is sound.
In considering an appeal, the Director or Assistant Secretary will
review the Initial Determination, the materials upon which the Initial
Determination is based, the applicant's reply and any accompanying
information, and any other materials or information available to TSA.
The Director or Assistant Secretary may affirm the Initial
Determination by concluding that an individual poses a security threat.
In this case, TSA serves a Final Determination of Threat Assessment on
the applicant. The Final Determination includes a statement that the
Director or Assistant Secretary has reviewed the Initial Determination,
the materials upon which the Initial Determination was based, the
reply, if any, and any other materials or information available to the
Director or Assistant Secretary and has determined that the applicant
poses a security threat. There is no administrative appeal of the Final
Determination of Threat Assessment. However, as explained below, an
applicant may apply for a waiver under certain circumstances. For
purposes of judicial review, the Final Determination of Threat
Assessment constitutes a final TSA order.
Paragraph (e) sets forth the procedures to follow if TSA determines
that the applicant does not pose a security threat. TSA serves a
Withdrawal of the Initial Determination on the applicant and a
Determination of No Security Threat on the issuing State.
If TSA did not serve the individual with an Initial Determination
of Threat Assessment, or grants a waiver, the agency will transmit a
Determination of No Security Threat to the applicant and the State in
which the applicant applied for the HME.
Paragraph (f) provides that TSA cannot disclose classified
information, as defined in E.O. 12968 section 1.1(d), to the applicant,
and TSA reserves the right not to disclose any other information or
material not warranting disclosure or protected from disclosure under
law, such as Sensitive Security Information (SSI); sensitive law
enforcement and intelligence information; sources, methods, means, and
application of intelligence techniques; and identities of confidential
informants, undercover operatives, and material witnesses.
For determinations under Sec. 1572.107, the finding that an
individual poses a security threat will be based, in large part, on
classified national security information, unclassified information
designated as SSI, or other information that is protected from
disclosure by law.
Classified national security information is information that the
President or another authorized Federal official has determined,
pursuant to E.O. 12968, must be protected against unauthorized
disclosure to safeguard the security of American citizens, the
country's democratic institutions, and America's participation within
the community of nations.\26\ Executive Order 12968 prohibits Federal
employees from disclosing classified information to individuals who
have not been cleared to have access to such information under the
requirements of that Executive Order.\27\ If the Director determines
that an applicant who is appealing the intelligence-related check is
requesting classified materials, the applicant will not be able to
access classified national security information, and TSA has no
authority to release this information to the applicant.
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\26\ See E.O. 12958, 60 FR 19825, April 20, 1995.
\27\ See E.O. 12968, sec. 3.2(a), 6.2(a)(1), 60 FR 40245, Aug.
7, 1995.
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The denial of access to classified information under these
circumstances is consistent with the treatment of classified
information under the Freedom of Information Act (FOIA), which
specifically exempts such information from the general requirement
under FOIA that all government documents are subject to public
disclosure.\28\
---------------------------------------------------------------------------
\28\ See 5 U.S.C. 552(b)(1).
---------------------------------------------------------------------------
SSI is unclassified information that is subject to disclosure
limitations under statute and TSA regulations.\29\ Under 49
[[Page 68738]]
U.S.C. 114(s), the Assistant Secretary of TSA may designate categories
of information as SSI if release of the information would be
detrimental to the security of transportation. Information that is
designated as SSI must only be disclosed to people with a need to know,
such as those needing to carry out regulatory security duties.\30\
---------------------------------------------------------------------------
\29\ See 49 U.S.C. 114(s); 49 CFR part 1520 as amended by 69 FR
28066 (May 18, 2004).
\30\ See 49 CFR 1520.11 as added by 69 FR 28084-5.
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The Assistant Secretary has defined information concerning threats
against transportation as SSI by regulation.\31\ Thus, information that
TSA obtains indicating that an applicant poses a security threat,
including the source of such information and the methods through which
the information was obtained, will commonly be designated SSI or
classified information. The purpose of designating this information as
SSI is to ensure that those who seek to do harm to the transportation
system and their associates do not obtain access to information that
will enable them to evade the government's efforts to detect and
prevent their activities. Disclosure of this information, especially to
an applicant specifically suspected of posing a threat to the
transportation system, is precisely the type of harm that Congress
sought to avoid by authorizing the Assistant Secretary to define and
protect SSI.
---------------------------------------------------------------------------
\31\ See 49 CFR 1520.5
---------------------------------------------------------------------------
Other pieces of information also are protected from disclosure by
law due to their sensitivity in law enforcement and intelligence. In
some instances, the release of information about a particular
individual or his or her supporters or associates could have a
substantial adverse impact on security matters. The release by TSA of
the identities or other information regarding individuals related to a
security threat determination could jeopardize sources and methods of
the intelligence community, the identities of confidential sources, and
techniques and procedures for law enforcement investigations or
prosecution.\32\ Release of such information also could have a
substantial adverse impact on ongoing investigations being conducted by
Federal law enforcement agencies, by revealing the course and progress
of an investigation. In certain instances, release of information could
alert co-conspirators to the extent of the Federal investigation and
the imminence of their own detection, thus provoking flight.
---------------------------------------------------------------------------
\32\ See 5 U.S.C. 552(b)(7)(D), (E).
---------------------------------------------------------------------------
For the reasons discussed above, TSA will not provide any
classified information to an applicant, and TSA reserves the right to
withhold SSI or other sensitive material protected from disclosure
under law. As noted above, TSA expects that information will be
withheld only for determinations based on Sec. 1572.107, which involve
databases that list indicators of potential terrorist activity or
threats. When the determination is based on the individual's criminal
records, TSA expects that appropriate supporting records most likely
can be disclosed to the applicant upon a written request to TSA. With
respect to disqualifications based on immigration status, TSA will
provide the driver with the reason for a denial, but may not be able to
provide specific documentation on the applicant's alien status.
Under this IFR, TSA has the discretion to extend due dates both for
an applicant and for the agency during the appeal process. An applicant
must provide a written statement of good cause for extending the due
date, within a reasonable time prior to the due date at issue. TSA has
changed this section from ``within seven days'' to a ``reasonable
time'' to provide the driver as much time as he or she reasonably
needs. This change is also in line with the rules of civil procedure.
TSA anticipates that if an applicant is attempting to correct erroneous
records or gather documents in support of a waiver request, the
individual may need additional time for the appropriate governmental
agency or entity to produce the documents. As long as the applicant
provides a sufficient explanation of these problems, TSA will likely
extend the time needed to complete the process.
Paragraph (i) of this section describes the procedure for appealing
an immediate revocation of an HME under Sec. 1572.13(a). Immediate
revocation will occur where TSA determines during the course of
conducting a security threat assessment that sufficient factual and
legal grounds exist to warrant immediate revocation of the HME. Under
these circumstances, the applicant must surrender the endorsement and
cease transporting hazardous materials prior to initiating an appeal.
TSA understands that removing the individual from service without an
opportunity to correct the record may have adverse consequences, but
this mechanism will be used only in cases where the risk of imminent
danger is significant and the adverse information is highly reliable.
This procedure will also be used where a driver should have surrendered
the endorsement and/or applied for a waiver, but failed to do so. The
individual may appeal this decision, must include all supporting
documentation when he or she submits the appeal, and may request
releaseable documents from TSA.
Section 1572.143 Waiver Procedures
This section applies to applicants who have been disqualified from
holding or obtaining an HME due to a disqualifying criminal offense or
mental incompetency. The Current Rule provides that an applicant with
any disqualifying offense or issues of mental competence may apply for
a waiver. In this IFR, TSA prohibits applicants with certain criminal
convictions from applying for a waiver. TSA has concluded that crimes
of espionage, treason, sedition, a terrorist act, or a crime involving
a transportation security incident are so highly indicative of a
security threat that individuals convicted of them pose an ongoing,
unacceptable risk to transportation security. Most likely, these
individuals will be incarcerated for a very long term, but the rule now
makes clear that convictions for these crimes disqualify an individual
for life, with no opportunity to apply for a waiver. Individuals who
are disqualified due to mental incompetence continue to be eligible for
a waiver.
Waivers are offered because an applicant may be rehabilitated to
the point that he or she can be trusted in sensitive or potentially
dangerous work or has been declared mentally competent. The Current
Rule and this IFR provide criteria that TSA considers if the individual
does not meet the criminal history standards. TSA believes that these
factors are good indicators that an individual may be rehabilitated to
the point that a waiver is advisable. The factors are: (1) The
circumstances of the disqualifying act or offense; (2) restitution made
by the individual; (3) Federal or State mitigation remedies; (4) court
records indicating that the individual has been declared mentally
competent; and (5) other factors TSA believes bear on the potential
security threat posed by the individual. Many of these factors are set
forth in MTSA, at 46 U.S.C. 70105(c)(2).
With respect to mental competency, TSA will accept a court order or
official medical declaration showing that an individual previously
declared incompetent is now competent to support the waiver request.
Generally, TSA will not grant waivers on the basis of a letter from a
treating physician stating that the individual is capable of
maintaining a job, because these submissions tend to be very subjective
and vague. The standard in the rule states that an applicant is
mentally
[[Page 68739]]
incompetent if a court declares it or he or she is involuntarily
committed to a mental hospital. Official documents that reverse these
findings are necessary for TSA to grant a waiver. TSA requests comment
on any additional criteria that the agency should consider when
determining whether to grant a waiver.
TSA, however, will not grant waivers from the standards concerning
immigration status or information discovered during a search under
Sec. 1572.107. With respect to immigration violations and findings
under Sec. 1572.107, individuals may appeal an Initial Determination
based on assertions that the underlying records are incorrect, the
applicant's identity is mistaken, or TSA's analysis of the records is
not correct. However, if TSA finds that the Initial Determination is
accurate, the individual is ineligible for a waiver.
After reviewing an individual's application for a waiver, TSA sends
a written decision to the individual and, if the waiver is granted, a
Determination of No Security Threat to the State in which the
individual applied for the HME within 30 days after the date of the
individual's waiver application.
Subpart C--Transportation of Explosives From Foreign Locations
In this IFR, TSA moves the existing standards concerning the
transportation of explosives from Canada to the United States via
commercial motor vehicle and rail to new subpart C. The existing
standards are not changing substantively; they are just being moved to
a separate Subpart.
Rulemaking Analyses and Notices
Justification for Immediate Adoption
TSA is issuing this interim final rule without prior notice and
opportunity to comment on certain new standards, pursuant to authority
under section 4(a) of the Administrative Procedure Act (5 U.S.C.
553(b)). This provision allows the agency to issue a final rule without
notice and opportunity to comment when the agency for good cause finds
that notice and comment procedures are ``impracticable, unnecessary or
contrary to the public interest.''
TSA issued the May 5 IFR and request for comments that set forth
most of the standards that are in the document we publish today. TSA
received comments from the States and the trucking industry, and to the
extent possible, we now make changes to the rule to accommodate those
comments. However, certain details of the program implementation were
not available to TSA when the Current Rule was published. The full
program will become operational on January 31, 2005, and the States
must have this information as soon as possible in order to implement
the program.
Also, TSA must determine quickly how many States will elect to
collect fingerprints and applicant information and how many will opt to
have TSA complete this work, so that TSA can procure a contractor to
establish a national fingerprinting collection system. This document
requires the States to make this declaration within 30 days of
publication of the rule so that TSA can publish a request for proposals
to implement the program.
Therefore, TSA believes that issuing a proposed rule to address the
changes and new provisions in the rule is contrary to the public
interest and impracticable. Most of the amendments we are making to the
Current Rule are minor and actually reduce burdens on the States. We
are issuing this IFR with a request for comments and will publish a
discussion and resolution of all comments received, and make any needed
changes to the rule.
Regulatory Evaluation
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, October 4, 1993), provides for making determinations whether a
regulatory action is ``significant'' and therefore subject to Office of
Management and Budget (OMB) review and to the requirements of the
Executive Order.
TSA has determined that this action is a significant regulatory
action within the meaning of Executive Order 12866 because there is
significant public interest in security issues since the events of
September 11, 2001, and approximately 2.7 million commercial drivers
are subject to the rule. This IFR amends existing standards that
implement section 1012 of the USA PATRIOT Act by establishing the
criteria used in determining whether an individual applying for,
transferring, or renewing an HME poses a security risk warranting
denial of the endorsement. OMB has reviewed this rule.
TSA has prepared a detailed analysis of the costs and benefits of
the hazmat security threat assessment program, which has been placed in
the docket. A summary of that analysis is set forth below.
Costs
The IFR results in a cost impact for TSA, States, and individuals
applying for, transferring, or renewing an HME. TSA will incur costs
for conducting security threat assessments and for bringing on line the
systems, personnel, and resources to conduct the security threat
assessments. The major cost-related areas for the States are applicant
information and fingerprint collection, processing, and transmission.
Hazmat driver applicants will incur opportunity costs in complying with
the requirements of the IFR.
Individuals applying for, transferring, or renewing an HME will
incur opportunity costs in complying with the requirements of the IFR.
These applicants will also have cash expenditures, or out-of-pocket
costs, that would be approximately equal to the total of: (1)
Fingerprint associated costs, (2) fees established to cover information
and fingerprint collection and transmission, and (3) the fee
established to cover the cost of security threat assessments. Because
the aforementioned costs have been estimated separately in this
analysis, no separate estimate was made for out-of-pocket Hazmat driver
applicant costs. Rather, to avoid double counting these costs, TSA
assumed that out-of-pocket Hazmat driver applicant expenses are
accounted for in the separate estimates of fingerprinting and
associated costs, information and fingerprint collection and
transmission costs, and TSA security threat assessment costs.
For this cost analysis, three scenarios were considered: (1) All
States choose to collect applicant information and fingerprints, (2) 50
percent of the States choose to collect information and fingerprints,
and (3) all States choose to allow a TSA agent to collect information
and fingerprints. TSA estimated the total ten-year undiscounted cost at
$534.1 million under scenario 1, $532.3 million under scenario 2, and
$530.5 million under scenario 3.
Table 1 summarizes the ten-year discounted and undiscounted costs
of the IFR. Separate estimates of costs are shown for States and TSA
(Federal government costs). Table 1 also shows discounted and
undiscounted opportunity costs to Hazmat drivers based on the time that
they must spend providing information and fingerprints.
[[Page 68740]]
Table 1.--Overall Summary of Ten-Year Costs Under Three Scenarios
[millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
All States collect applicant 50% of States collect applicant All States choose TSA agent
information information -------------------------------
------------------------------------------------------------------
Undiscounted Undiscounted Undiscounted Present value
costs Present value costs Present value costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Population (renewals, transfers, new applicants)...... 4.1 ............... 4.1 ............... 4.1 ..............
Federal (TSA) Costs:
Start Up (non-recur).............................. $4.8 $4.8 $4.8 $4.8 $4.8 $4.8
Recurring Costs................................... 130.6 98.2 130.6 98.2 130.6 98.2
FP and Associated Cost............................ 0.0 0.0 116.1 87.3 232.2 174.5
-----------------
Total States (2004-2013)...................... 135.4 103.0 251.5 190.3 367.6 277.5
States Cost:
Start Up (non-recur).............................. 3.6 3.6 1.8 1.8 NA NA
FP and Associated Cost............................ 232.2 174.5 116.1 87.3 NA NA
Recordkeeping..................................... 6.4 4.8 6.4 4.8 6.4 4.8
-----------------
Total States (2004-2013)...................... 242.2 182.9 124.3 93.9 6.4 4.8
Opportunity Costs:
Lost Time......................................... 156.5 117.6 156.5 117.6 156.5 117.6
=================
Total Cost Impact............................. 534.1 403.5 532.3 406.5 530.5 399.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits
The primary benefit of the rule will be increased protection of
property and citizens in the U.S. from acts of terrorism. Part of TSA's
mission is to ensure the security of hazardous materials in
transportation so that these materials are not used in an act of
terrorism. The changes envisioned in this interim final rule are an
integral part of the total program needed by the transportation
industry to prevent such acts of terrorism.
When quantifying benefits for which there are no exact parallels,
similar magnitude events can demonstrate the ranges of possible
magnitudes for either costs or benefits. Two terrorist attacks on U.S.
soil provide examples of the harm that can occur from explosive
material delivered in a van or light truck: The 1993 New York World
Trade Center (WTC) bombing and the 1995 Oklahoma City Federal Building
bombing. The 1993 WTC bombing killed six people, injured over 1,000,
and resulted in over $510 million in insured losses. The Oklahoma City
(OKC) bombing killed 168 people, injured 601, and resulted in over $125
million in insured losses. Total losses for these incidents were
estimated at $685 million.
The intent of the IFR is to limit access to hazardous material by
persons viewed as a security threat. The rule is designed to decrease
the probability of terrorist incidents related to Hazmat misuse.
Although the 1993 WTC and 1995 OKC bombings were not executed by Hazmat
drivers, these examples show the potential damage that can occur using
a van or light truck. If larger vehicles were used to carry out a
terrorist attack, the damage could be far greater.
The IFR would establish a level of security that would reduce the
likelihood of such an event occurring. The prevention of just one
terrorist attack similar to the examples above over the next 10 years
would offset the cost of this rule, and supports the rule as cost-
beneficial. In addition, there are other benefits associated with
ripple effects of incidents of this magnitude. This type of multiplier
effect is important in determining benefits.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980, as amended, (RFA) was
enacted by Congress to ensure that small entities (small businesses,
small not-for-profit organizations, and small governmental
jurisdictions) are not unnecessarily or disproportionately burdened by
Federal regulations. The RFA requires agencies to review rules to
determine if they have ``a significant economic impact on a substantial
number of small entities.'' TSA has determined that this interim final
rule will not have a significant economic impact on a substantial
number of small entities.
Under the RFA, the term ``small entity'' has the same meaning as
the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' This action will affect States, and States
are governmental jurisdictions. However, States are not considered
``small governmental jurisdictions'' under the RFA. As defined by the
RFA, small governmental jurisdictions include governments of cities,
counties, towns, townships, villages, school districts, or special
districts with a population of less than 50 thousand.
The action would also affect individuals, but current industry
practice is for individual drivers to obtain their CDL certification as
a condition of employment. Individuals are required to have a current
CDL with appropriate endorsements to be eligible for employment. This
cost is an employment cost typically borne by the individual employee,
but individuals are not considered small entities for purposes of the
RFA. However, individuals who are independent truck drivers and owner-
operators would be subject to the RFA. For these individuals, the IFR
would impose costs for information collection and fees associated with
background checks (a total of $57 per individual).
TSA estimates that the total cost for these individuals would be
approximately $100 per individual once the TSA security threat
assessment fee is established and opportunity costs are considered.
These costs will be spread over a period of five years (incurred only
during the 5-year renewal process). TSA does not consider these costs
to be significant when compared to the total cost of maintaining and
operating a truck and considering that they are spread over a 5-year
period (incurred only during the 5-year renewal process). Therefore,
the burden on small business
[[Page 68741]]
entities from this rule is expected to be de minimis.
TSA has conducted the required review of this rule pursuant to the
RFA, 5 U.S.C. 605(b) and has determined that it will not have a
significant impact on a substantial number of small entities.
Accordingly, TSA certifies that this rule will not have a significant
impact on a substantial number of small entities.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), a Federal agency must obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. This IFR contains
information collection activities subject to the PRA. Accordingly, the
following information requirements have been submitted to OMB for its
review.
Title: Security Threat Assessment for Individuals Applying for a
Hazardous Materials Endorsement for a Commercial Driver's License.
Summary: TSA is amending standards for security threat assessments
of individuals applying for, renewing, or transferring a hazardous
materials endorsement (HME) for a commercial driver's license (CDL),
which in addition to the information already collected by the States
for the purpose of HME applications, will now include fingerprints,
immigration status, mental competency, and criminal history
information.
Use of: Truck drivers must complete an application and provide
fingerprints to undergo a security threat assessment. In States that
opt to collect applicant information and fingerprints, the States and
local agencies will most likely collect this information when
individuals apply for, renew, or transfer an HME. In States that opt to
have TSA collect the application and fingerprints, the States will
continue to have responsibility for retaining the information that TSA
collects.
Respondents (including number of): The likely respondents to this
information requirement are individuals applying for, renewing or
transferring an HME and each of the 50 States and the District of
Columbia, for a total pool of approximately 2.7 million respondents.
Frequency: Estimates indicate that approximately 2.7 million people
have an HME and this number is expected to initially decrease for the
first three years, then grow by approximately 1.0% per year for a ten-
year total of approximately 2.1 million people (210,000 annualized).
The number of fingerprint applications to be collected over a ten-year
period is approximately 4.1 million (407,000 annualized). This number
includes new applicants, transfers, and renewals. States must notify
each HME holder of the requirement to undergo a security threat
assessment at least 60 days prior to the expiration date of the
endorsement.
Annual Burden Estimate: Fingerprint costs consist of a processing
fee, processing time, and material. The average collection cost for the
fingerprint process was estimated at approximately $35 per set. TSA
estimates that it will take an average of thirty minutes to complete an
FBI fingerprint card and forward it to the FBI for further processing.
Individual respondents will also be required to complete an application
to certify their immigration status, mental competency, and relevant
criminal history. TSA estimates this form will take an average of
thirty minutes to complete. Thus, for individuals, the annual estimated
burden is 407,000 hours at a cost of $14.25 million. Added to these
estimates will be an annual recordkeeping burden of 4,800 hours plus
$500,000 in data retention and reporting costs for all 50 states and
the District of Columbia combined. TSA welcomes comment from the public
concerning these estimates.
The agency is soliciting comments to--
(1) Evaluate whether the information requirement 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;
(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 must respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
Pursuant to the PRA, an agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number. The OMB
control number for this information collection will be published in the
Federal Register after OMB approves it.
Executive Order 13132 (Federalism)
Executive Order 13132 requires TSA to develop an accountable
process to ensure ``meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' Under the Executive Order, TSA may construe a Federal
statute to preempt State law only where, among other things, the
exercise of State authority conflicts with the exercise of Federal
authority under the Federal statute.
This action has been analyzed in accordance with the principles and
criteria in the Executive Order, and it has been determined that this
Interim Final Rule does have Federalism implications or a substantial
direct effect on the States. Under this rule, the States may choose to
collect information and process fingerprints that will be the basis for
TSA's security threat assessment. TSA will develop the detailed
procedures for the program in consultation with the States.
TSA notes that FMCSA has communicated with the States on the
requirements of the USA PATRIOT Act. The Assistant Administrator of
FMCSA wrote to licensing officials in each State on October 31, 2001,
briefly summarizing section 1012 of the USA PATRIOT Act, and asking
them to continue issuing and renewing hazardous materials endorsements
until the regulations implementing section 1012 were completed. Some
States have already enacted legislation they consider necessary to
carry out the mandates of section 1012.
Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires Federal agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of more
than $100 million in any one year (adjusted for inflation with base
year of 1995). Before promulgating a rule for which a written statement
is needed, section 205 of the UMRA generally requires agencies to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective, or least burdensome
alternative that achieves the objective of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows TSA to
[[Page 68742]]
adopt an alternative other than the least costly, most cost-effective,
or least burdensome alternative if the agency publishes with the final
rule an explanation as to why that alternative was not adopted.
This action will require a State expenditure of less than $5.0
million in the first year of the recurring phase, regardless of whether
it chooses to collect applicant information and fingerprints or allow a
TSA agent to collect the required information. The ten-year State cost
is estimated to range between $6.4 million and $242.2 million
undiscounted, depending on the option selected by the State. Based on
this estimate, TSA has determined that the action will not result in
the expenditure by State, local, or tribal governments, in the
aggregate, or by the private sector, of more than $100 million in any
one year.
Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and, where appropriate, that they be the basis for U.S.
standards. TSA will continue to consult with Mexico and Canada under
the North American Free Trade Agreement to ensure that any adverse
impacts on trade are minimized. This rule applies only to individuals
applying for a State-issued hazardous materials endorsement for a
commercial drivers license. Thus, TSA has determined that this rule
will have no impact on trade.
Environmental Analysis
TSA has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment. In accordance with FAA Order 1050.1D, appendix 4,
paragraph 4(j), this rulemaking action qualifies for a categorical
exclusion. The FAA order continues to apply to TSA in accordance with
the Homeland Security Act (Pub. L. 107-296), until DHS publishes its
NEPA implementing regulations.
Energy Impact
The energy impact of this document has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163,
as amended (42 U.S.C. 6362). We have determined that this rulemaking is
not a major regulatory action under the provisions of the EPCA.
List of Subjects in 49 CFR Part 1572
Commercial drivers license, Criminal history records check,
Explosives, Hazardous materials, Motor carriers, Motor vehicle
carriers, Security measures, Security threat assessment.
The Amendments
0
In consideration of the foregoing, the Transportation Security
Administration amends chapter XII of title 49, Code of Federal
Regulations, as follows:
SUBCHAPTER D--MARITIME AND LAND TRANSPORTATION SECURITY
0
1. Revise part 1572 to read as follows:
PART 1572--CREDENTIALING AND BACKGROUND CHECKS FOR LAND
TRANSPORTATION SECURITY
Subpart A--Requirements To Undergo Security Threat Assessments
Sec.
1572.1 Applicability.
1572.3 Terms used in this part.
1572.5 Scope and standards for hazardous materials endorsement
security threat assessment.
1572.7 Waivers of hazardous materials endorsement security threat
assessment standards.
1572.9 Applicant information required for a security threat
assessment for a hazardous materials endorsement.
1572.11 Applicant responsibilities for a security threat assessment
for a hazardous materials endorsement.
1572.13 State responsibilities for issuance of hazardous materials
endorsement.
1572.15 Procedures for security threat assessment.
Subpart B--Standards, Appeals, and Waivers for Security Threat
Assessments
1572.101 Scope.
1572.103 Disqualifying criminal offenses.
1572.105 Immigration status.
1572.107 Other analyses.
1572.109 Mental capacity.
1572.111-1572.139 [Reserved]
1572.141 Appeal procedures.
1572.143 Waiver procedures.
Subpart C--Transportation of Explosives From Foreign Locations
1572.201 Transportation of explosives from Canada to the United
States via commercial motor vehicle.
1572.203 Transportation of explosives from Canada to the United
States via railroad carrier.
Authority: 49 U.S.C. 114, 5103a, 40113, 46105; 18 U.S.C. 842,
845.
Subpart A--Requirements To Undergo Security Threat Assessments
Sec. 1572.1 Applicability.
This part prescribes regulations for credentialing and security
threat assessments for certain maritime and land transportation
workers.
Sec. 1572.3 Terms used in this part.
For purposes of this part:
Adjudicate means to make an administrative determination of whether
an applicant meets the standards in this part based on the merits of
the issues raised.
Alien means any person not a citizen or national of the United
States.
Alien registration number means the number issued by the United
States Department of Homeland Security to an individual when he or she
becomes a lawful permanent resident of the United States or attains
other lawful, non-citizen status.
Applicant means an individual who is applying for a new, renewal,
or transfer hazardous materials endorsement.
Assistant Secretary means Assistant Secretary for Homeland
Security, Transportation Security Administration (Assistant Secretary),
who is the highest ranking TSA official, or his or her designee, and
who is responsible for making the final determination on the appeal of
an intelligence-related check under this part.
Commercial drivers license (CDL) is used as defined in 49 CFR
383.5.
Convicted includes any plea of guilty or nolo contendere, or any
finding of guilt, except when the finding of guilt is subsequently
overturned on appeal, pardoned, or expunged. For purposes of this part,
a conviction is expunged when the conviction is removed from the
individual's criminal history record and there are no legal
disabilities or restrictions associated with the expunged conviction,
other than the fact that the conviction may be used for sentencing
purposes for subsequent convictions. In addition, where an individual
is allowed to withdraw an original plea of guilty or nolo contendere
and enter a plea of not guilty and the case is subsequently dismissed,
the individual is no longer considered to have a conviction for
purposes of this part.
Date of service means--
(1) In the case of personal service, the date of personal delivery
to the residential address listed on the application;
(2) In the case of mailing with a certificate of service, the date
shown on the certificate of service;
(3) In the case of mailing and there is no certificate of service,
10 days from
[[Page 68743]]
the date mailed to the address designated as the mailing address on the
application;
(4) In the case of mailing with no certificate of service or
postmark, the date mailed to the address designated as the mailing
address on the application shown by other evidence; or
(5) The date on which an electronic transmission occurs.
Day means calendar day.
Determination of No Security Threat means an administrative
determination by TSA that an individual does not pose a security threat
warranting denial of a hazardous materials endorsement.
Director means the officer designated by the Assistant Secretary to
administer the appeal and waiver programs described in this part,
except where the Assistant Secretary is specifically designated in this
part to administer the appeal or waiver program. The Director may
appoint a designee to assume his or her duties.
Endorsement is used as defined in 49 CFR 383.5.
Explosive or explosive device includes, but is not limited to, an
explosive or explosive material as defined in 18 U.S.C. 232(5), 841(c)
through 841(f), and 844(j), and a destructive device as defined in 18
U.S.C. 921(a)(4) and 26 U.S.C. 5845(f).
Final Determination of Threat Assessment means a final
administrative determination by TSA, including the resolution of
related appeals, that an individual poses a security threat warranting
denial of a hazardous materials endorsement.
Final Disposition means the actions that must be taken following
issuance of a Determination of No Security Threat, a Final
Determination of Security Threat, or the grant of a waiver to ensure
that a driver's record, a driver's endorsement, and the Commercial
Drivers License Information System (CDLIS) accurately reflect the
results of the fingerprint and intelligence-related checks.
Firearm or other weapon includes, but is not limited to, firearms
as defined in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a) or items
contained on the U.S. Munitions Import List at 27 CFR 447.21.
Hazardous material has the same meaning as defined in section 103
of the Hazardous Materials Transportation Act.
Hazardous materials endorsement (HME) means the authorization for
an individual to transport hazardous materials in commerce, which must
be indicated on the individual's commercial driver's license.
Imprisoned or imprisonment means confined to a prison, jail, or
institution for the criminally insane, on a full-time basis pursuant to
a sentence imposed as the result of a criminal conviction or finding of
not guilty by reason of insanity. Time spent confined or restricted to
a half-way house, treatment facility, or similar institution pursuant
to a sentence imposed as the result of a criminal conviction or finding
of not guilty by reason of insanity does not constitute imprisonment
for purposes of this rule.
Incarceration means confined or otherwise restricted to a jail-type
institution, half-way house, treatment facility, or another
institution, on a full or part-time basis pursuant to a sentence
imposed as the result of a criminal conviction or finding of not guilty
by reason of insanity.
Initial Determination of Threat Assessment means an initial
administrative determination by TSA that an individual poses or may
pose a security threat warranting denial of a hazardous materials
endorsement.
Initial Determination of Threat Assessment and Immediate Revocation
means an initial administrative determination that an individual poses
a security threat that warrants immediate revocation of an HME. Upon
issuance of this document, the State must immediately revoke the hazmat
endorsement.
Lawful permanent resident means an individual who has been lawfully
admitted to the United States for permanent residence, as defined in 8
U.S.C. 1101.
Mental institution means a mental health facility, mental hospital,
sanitarium, psychiatric facility, and any other facility that provides
diagnoses by licensed professionals of mental retardation or mental
illness, including a psychiatric ward in a general hospital.
Pilot State means a State which volunteers to begin the security
threat assessment process prior to January 31, 2005.
Revoke means the process by which a State cancels, rescinds,
withdraws, or removes a hazardous materials endorsement.
State means a State of the United States and the District of
Columbia.
Transportation security incident means a security incident
resulting in a significant loss of life, environmental damage,
transportation system disruption, or economic disruption in a
particular area, as defined in 46 U.S.C. 70101.
Withdrawal of Initial Determination of Threat Assessment is the
document that TSA issues after issuing an Initial Determination of
Security Threat, when TSA determines that the applicant does not pose a
security threat warranting denial of a hazardous materials endorsement.
Sec. 1572.5 Scope and standards for hazardous materials endorsement
security threat assessment.
(a) This subpart applies to--
(1) State agencies responsible for issuing an HME; and
(2) Applicants who are qualified to hold a commercial driver's
license under 49 CFR parts 383 and 384, and are applying for a new,
renewal, or transfer HME.
(b) In conducting the security threat assessment requirements in
this part, the States and TSA use one or more of the following:
(1) An applicant's fingerprints.
(2) An applicant's name.
(3) Other identifying information.
(c) TSA has determined that an applicant does not pose a security
threat warranting denial of an HME if:
(1) The applicant does not have a disqualifying criminal offense
described in Sec. 1572.103;
(2) The applicant meets the immigration status requirements
described in Sec. 1572.105;
(3) TSA conducts the analyses described in Sec. 1572.107 and
determines that the applicant does not pose a security threat; and
(4) The applicant has not been adjudicated as lacking mental
capacity or committed to a mental institution, as described in Sec.
1572.109.
(d) TSA may direct a State to revoke an individual's HME
immediately if TSA determines during the security threat assessment
that the individual poses an immediate threat to transportation
security, national security or of terrorism.
(e) The regulations of the Federal Motor Carrier Safety
Administration (FMCSA) provide that an applicant is disqualified from
operating a commercial motor vehicle for specified periods if he or she
has an offense that is listed in the FMCSA rules at 49 CFR 383.51. If
records indicate that an applicant has committed an offense that would
disqualify the applicant from operating a commercial motor vehicle
under 49 CFR 383.51, TSA will not issue a Determination of No Security
Threat until the State or the FMCSA determine that the applicant is not
disqualified under that section.
Sec. 1572.7 Waivers of hazardous materials endorsement security
threat assessment standards.
(a) An applicant may apply to TSA for a waiver of the standards
described in Sec. 1572.5, if the applicant--
[[Page 68744]]
(1) Has a disqualifying criminal offense described in paragraphs
1572.103(a)(5) through (a)(9), and paragraph 1572.103 (a)(10) if the
underlying criminal offense is in paragraphs 1572.103 (a)(5) through
(a)(9); or
(2) Has a disqualifying criminal offense described in Sec.
1572.103(b); or
(3) Has a history of mental incompetence described in Sec.
1572.109.
(b) [Reserved].
Sec. 1572.9 Applicant information required for a security threat
assessment for a hazardous materials endorsement.
(a) For TSA to complete a security threat assessment, an applicant
must supply the information required in this section when the applicant
applies to obtain or renew a hazardous materials endorsement. When
applying to transfer a hazardous materials endorsement, Sec.
1572.13(g) applies.
(b) The application must include the following identifying
information:
(1) Legal name, including first, middle, and last; any applicable
suffix; and any other name used previously.
(2) Current mailing address and residential address if it differs
from the mailing address; and the previous residential address.
(3) Date of birth.
(4) Social security number.
(5) Gender.
(6) Height, weight, hair and eye color.
(7) City, state, and country of birth.
(8) Immigration status and date of naturalization if the applicant
is a naturalized citizen of the United States.
(9) Alien registration number.
(10) State of application, CDL number, and type of endorsement
held.
(11) The name, telephone number, and address of the applicant's
current employer(s).
(c) The application must include the disqualifying criminal
offenses identified in Sec. 1572.103.
(d) The application must include a statement, signature, and date
of signature that the applicant:
(1) Was not convicted or found not guilty by reason of insanity of
a disqualifying crime listed in Sec. 1572.103(b) in a civilian or
military jurisdiction during the 7 years before the date of the
application;
(2) Was not released from incarceration in a civilian or military
jurisdiction for committing a disqualifying crime listed in Sec.
1572.103(b) during the 5 years before the date of the application;
(3) Is not wanted or under indictment in a civilian or military
jurisdiction for a disqualifying criminal offense identified in Sec.
1572.103;
(4) Was not convicted or found not guilty by reason of insanity of
a disqualifying criminal offense identified in Sec. 1572.103(a) in a
civilian or military jurisdiction;
(5) Has not been adjudicated as lacking mental capacity or
committed to a mental institution involuntarily;
(6) Meets the immigration status requirements described in Sec.
1572.105;
(7) Has or has not served in the military, and if so, the branch in
which he or she served, the date of discharge, and the type of
discharge; and
(8) Has been informed that Federal regulations under Sec. 1572.11
impose a continuing obligation to disclose to the State within 24 hours
if he or she is convicted or found not guilty by reason of insanity of
a disqualifying crime, or adjudicated as lacking mental capacity or
committed to a mental institution, while he or she holds an HME.
(e) The application must include a statement reading:
Privacy Act Notice: Authority: The authority for collecting this
information is 49 U.S.C. 114, 40113, and 49 U.S.C. 5103a. Purpose:
This information is needed to verify your identity and to conduct a
security threat assessment to evaluate your suitability for a
hazardous materials endorsement for a commercial drivers license.
Furnishing this information, including your SSN or alien
registration number, is voluntary; however, failure to provide it
will prevent the completion of your security threat assessment,
without which you cannot be granted a hazardous materials
endorsement. Routine Uses: Routine uses of this information include
disclosure to the FBI to retrieve your criminal history record; to
TSA contractors or other agents who are providing services relating
to the security threat assessments; to appropriate governmental
agencies for licensing, law enforcement, or security purposes, or in
the interests of national security; and to foreign and international
governmental authorities in accordance with law and international
agreement.
The information I have provided on this application is true,
complete, and correct to the best of my knowledge and belief and is
provided in good faith. I understand that a knowing and willful
false statement, or an omission of a material fact, on this
application can be punished by fine or imprisonment or both (see
section 1001 of Title 18 United States Code), and may be grounds for
denial of a hazardous materials endorsement.
Sec. 1572.11 Applicant responsibilities for a security threat
assessment for a hazardous materials endorsement.
(a) Prohibitions. An applicant does not meet the security threat
assessment standards if he or she:
(1) Has a disqualifying criminal offense identified in Sec.
1572.103, unless TSA grants a waiver under Sec. 1572.143; or
(2) Does not meet the immigration status requirements identified in
Sec. 1572.105; or
(3) Has been notified by TSA that he or she poses a security threat
under Sec. 1572.107; or
(4) Has been adjudicated as lacking mental capacity or committed to
a mental institution as described in Sec. 1572.109, unless TSA grants
a waiver under Sec. 1572.143.
(b) Surrender of endorsement. If an individual is disqualified from
holding an HME under paragraph (a) of this section, he or she must
surrender the HME and notify TSA. Failure to surrender the HME and
notify TSA may result in immediate revocation under Sec. 1572.13(a)
and/or civil penalties.
(c) Continuing responsibilities. An individual who holds an HME
must surrender the HME and notify TSA within 24 hours, if he or she:
(1) Is convicted of, wanted, under indictment, or found not guilty
by reason of insanity in a civilian or military jurisdiction for a
disqualifying criminal offense identified in Sec. 1572.103; or
(2) Is adjudicated as lacking mental capacity or committed to a
mental institution as described in Sec. 1572.109; or
(3) Renounces or loses U.S. citizenship; or
(4) Violates his or her immigration status and/or is ordered
removed from the United States.
(d) Submission of fingerprints. (1) An applicant who has not
already done so may submit fingerprints in a form and manner specified
by TSA when a State revokes the applicant's HME under Sec. 1572.13(a).
(2) When so notified by the State, an applicant must submit
fingerprints and the information required in Sec. 1572.9 in a form and
manner specified by the State and TSA, when TSA requests it, or when
the applicant applies to obtain or renew an HME. The procedures
outlined in Sec. 1572.13(g) apply to HME transfers.
(3) When submitting fingerprints and the applicant information
required in Sec. 1572.9, the applicant or the applicant's employer is
responsible for the TSA fee and the FBI fee.
Sec. 1572.13 State responsibilities for issuance of hazardous
materials endorsement.
(a) Each State must immediately revoke an individual's HME if TSA
informs the State that the individual does not meet the standards for
security threat assessment in Sec. 1572.5 and issues an Initial
Determination of Threat Assessment and Immediate Revocation.
[[Page 68745]]
(b) Beginning January 31, 2005 for new issuances, and May 31, 2005
for renewal or transfer issuances:
(1) No State may issue or renew a hazardous materials endorsement
for a CDL unless the State receives a Determination of No Security
Threat from TSA.
(2) Each State must notify each individual holding a hazardous
materials endorsement issued by that State that he or she will be
subject to the security threat assessment described in this part as
part of an application for renewal of the endorsement, at least 60 days
prior to the expiration date of the individual's endorsement. The
notice must inform the individual that he or she may initiate the
security threat assessment required by this section at any time after
receiving the notice, but no later than 30 days before the expiration
date of the individual's endorsement.
(3) No State may begin processing renewal or transfer applicants
prior to March 31, 2005.
(c) Prior to January 31, 2005, as approved by TSA, a Pilot State
may not revoke, issue, renew, or transfer a hazardous materials
endorsement for a CDL unless the Pilot State--
(1) Collects the information required in Sec. 1572.9;
(2) Collects and submits fingerprints in accordance with procedures
approved by TSA; and
(3) Receives a Determination of No Security Threat or a Final
Determination of Threat Assessment from TSA.
(d) The State that issued an endorsement may extend the expiration
date of the endorsement for 90 days if TSA has not provided a
Determination of No Security Threat or a Final Determination of Threat
Assessment before the expiration date. Any additional extension must be
approved in advance by the Director.
(e) Within 15 days of receipt of a Determination of No Security
Threat or Final Determination of Threat Assessment from TSA, the State
must--
(1) Update the applicant's permanent record to reflect:
(i) The results of the security threat assessment;
(ii) The issuance or denial of an HME; and
(iii) The new expiration date of the HME.
(2) Notify the Commercial Drivers License Information System
operator of the results of the security threat assessment.
(3) Revoke or deny the applicant's HME if TSA serves the State with
a Final Determination of Threat Assessment.
(f) On or before December 27, 2004, each State must submit a
written declaration to TSA, which shall remain in effect until January
31, 2008, unless otherwise authorized by TSA, that states one of the
following:
(1) The State elects to collect and submit applicant fingerprints
and information, in accordance with the requirements of this part and
applicable fingerprint submission standards of the FBI, and the
associated TSA and FBI fees; or
(2) The State elects to have TSA/TSA agent collect and submit
applicant fingerprints and information, in accordance with the
requirements of this part and applicable fingerprint submission
standards of the FBI, and the associated TSA and FBI fees. If TSA does
not receive a written declaration from a State, TSA will assume
responsibility for the collection and submission process.
(g) For applicants who apply to transfer an existing hazardous
materials endorsement from one State to another, the second State will
not require the applicant to undergo a new security threat assessment
until the security threat assessment renewal period established in the
preceding issuing State, not to exceed five years, expires.
(h) Each State must retain the application and information required
in Sec. 1572.9 for at least one year in paper or electronic form.
Sec. 1572.15 Procedures for security threat assessment.
(a) Contents of security threat assessment. The security threat
assessment TSA completes includes a fingerprint-based criminal history
records check, an intelligence-related background check, and a final
disposition.
(b) Fingerprint-based check. In order to conduct a fingerprint-
based criminal history records check, the following procedures must be
completed:
(1) The State notifies the applicant that he or she will be subject
to the security threat assessment at least 60 days prior to the
expiration of the applicant's HME and that the applicant must begin the
security threat assessment no later than 30 days before the date of the
expiration of the HME.
(2) Where the State elects to collect fingerprints and applicant
information under Sec. 1572.13(f)(1), the State--
(i) Collects fingerprints and applicant information required in
Sec. 1572.9;
(ii) Provides the applicant information to TSA electronically,
unless otherwise authorized by TSA;
(iii) Transmits the fingerprints to the FBI/CJIS in accordance with
the FBI/CJIS fingerprint submission standards; and
(iv) Retains the signed application, in paper or electronic form,
for one year and provides it to TSA if requested.
(3) Where the State elects to have TSA/TSA agent collect
fingerprints and applicant information under Sec. 1572.13(f)(2)--
(i) TSA provides a copy of the signed application to the State;
(ii) The State retains the signed application, in paper or
electronic form, for one year and provides it to TSA if requested; and
(iii) TSA transmits the fingerprints to the FBI/CJIS in accordance
with the FBI/CJIS fingerprint submission standards.
(4) TSA receives the results from the FBI/CJIS and adjudicates the
results of the check in accordance with Sec. 1572.103 and, if
applicable, Sec. 1572.107.
(c) Intelligence-related check. To conduct an intelligence-related
check, the following procedures are completed:
(1) TSA reviews the applicant information required in Sec. 1572.9;
(2) TSA searches domestic and international government databases
described in Sec. Sec. 1572.105, 1572.107, and 1572.109;
(3) TSA adjudicates the results of the check in accordance with
Sec. Sec. 1572.103, 1572.105, 1572.107, and 1572.109.
(d) Final Disposition. Following completion of the procedures
described in paragraphs (b) and/or (c) of this section, the following
procedures apply, as appropriate:
(1) TSA serves a Determination of No Security Threat on the State
in which the applicant is authorized to hold an HME, if TSA determines
that an applicant meets the security threat assessment standards
described in Sec. 1572.5.
(2) TSA serves an Initial Determination of Threat Assessment on the
applicant if TSA determines that the applicant does not meet the
security threat assessment standards described in Sec. 1572.5. The
Initial Determination of Threat Assessment includes--
(i) A statement that TSA has determined that the applicant poses or
is suspected of posing a security threat warranting denial of the HME;
(ii) The basis for the determination;
(iii) Information about how the applicant may appeal the
determination, as described in Sec. 1572.141; and
(iv) A statement that if the applicant chooses not to appeal TSA's
determination within 30 days after receipt of the Initial
Determination, or does not request an extension of time within 30 days
after receipt of the Initial Determination in order to file an appeal,
[[Page 68746]]
the Initial Determination becomes a Final Determination of Security
Threat Assessment.
(3) TSA serves an Initial Determination of Threat Assessment and
Immediate Revocation on the applicant and the State, if TSA determines
that the applicant does not meet the security threat assessment
standards described in Sec. 1572.5 and may pose an imminent threat to
transportation or national security, or of terrorism. The Initial
Determination of Threat Assessment and Immediate Revocation includes--
(i) A statement that TSA has determined that the applicant poses or
is suspected of posing a security threat warranting immediate
revocation of an HME;
(ii) The basis for the determination;
(iii) Information about how the applicant may appeal the
determination, as described in Sec. 1572.141(i); and
(iv) A statement that if the applicant chooses not to appeal TSA's
determination within 30 days after receipt of the Initial Determination
and Immediate Revocation, the Initial Determination and Immediate
Revocation becomes a Final Determination of Threat Assessment.
(4) TSA serves a Final Determination of Threat Assessment on the
State in which the applicant applied for the HME and on the applicant,
if the appeal of the Initial Determination results in a finding that
the applicant poses a security threat.
(5) TSA serves a Withdrawal of the Initial Determination of Threat
Assessment or a Withdrawal of Final Determination of Threat Assessment
on the applicant and a Determination of No Security Threat on the
State, if the appeal results in a finding that the applicant does not
pose a threat to security, or if TSA grants the applicant a waiver
pursuant to Sec. 1572.143.
Subpart B--Standards, Appeals, and Waivers for Security Threat
Assessments
Sec. 1572.101 Scope.
This subpart applies to applicants who hold or are applying to
renew or transfer an HME.
Sec. 1572.103 Disqualifying criminal offenses.
(a) Permanent disqualifying criminal offenses. An applicant has a
permanent disqualifying offense if convicted or found not guilty by
reason of insanity in a civilian or military jurisdiction of any of the
following felonies:
(1) Espionage.
(2) Sedition.
(3) Treason.
(4) A crime listed in 18 U.S.C. Chapter 113B--Terrorism, or a State
law that is comparable.
(5) A crime involving a transportation security incident.
(6) Improper transportation of a hazardous material under 49 U.S.C.
5124 or a State law that is comparable.
(7) Unlawful possession, use, sale, distribution, manufacture,
purchase, receipt, transfer, shipping, transporting, import, export,
storage of, or dealing in an explosive or explosive device.
(8) Murder.
(9) Conspiracy or attempt to commit the crimes in this paragraph
(a).
(10) Violations of the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. 1961, et seq., or a State law that is
comparable, where one of the predicate acts found by a jury or admitted
by the defendant, consists of one of the offenses listed in paragraphs
(a)(4) or (a)(8) of this section.
(b) Interim disqualifying criminal offenses. The felonies listed in
paragraphs (b)(1) through (b)(14) of this section are disqualifying if
either of the following factors is true: the applicant was convicted or
found not guilty by reason of insanity of the crime in a civilian or
military jurisdiction, within the 7 years preceding the date of
application; or the applicant was released from incarceration for the
crime within the 5 years preceding the date of application.
(1) Assault with intent to murder.
(2) Kidnapping or hostage taking.
(3) Rape or aggravated sexual abuse.
(4) Unlawful possession, use, sale, manufacture, purchase,
distribution, receipt, transfer, shipping, transporting, delivery,
import, export of, or dealing in a firearm or other weapon.
(5) Extortion.
(6) Dishonesty, fraud, or misrepresentation, including identity
fraud.
(7) Bribery.
(8) Smuggling.
(9) Immigration violations.
(10) Violations of the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. 1961, et seq., or a State law that is
comparable, other than the violations listed in paragraph (a)(10) of
this section.
(11) Robbery.
(12) Distribution of, possession with intent to distribute, or
importation of a controlled substance.
(13) Arson.
(14) Conspiracy or attempt to commit the crimes in this paragraph
(b).
(c) Under want or warrant. An applicant who is wanted or under
indictment in any civilian or military jurisdiction for a felony listed
in this section is disqualified until the want or warrant is released.
(d) Determination of arrest status. (1) When a fingerprint-based
check discloses an arrest for a disqualifying crime listed in this
section without indicating a disposition, TSA will so notify the
applicant and provide instructions on how the applicant must clear the
disposition, in accordance with paragraph (d)(2) of this section.
(2) The applicant must provide TSA with written proof that the
arrest did not result in a disqualifying criminal offense within 45
days after the service date of the notification in paragraph (d)(1) of
this section. If TSA does not receive proof in that time, TSA will
notify the applicant and the State that the applicant is disqualified
from holding an HME.
Sec. 1572.105 Immigration status.
(a) An applicant applying for a security threat assessment for an
HME must be--
(1) A citizen of the United States who has not renounced or lost
his or her United States' citizenship; or
(2) A lawful permanent resident of the United States, as defined in
section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C.
1101); or
(3) An individual who is--
(i) In lawful nonimmigrant status and possesses valid evidence of
unrestricted employment authorization; or
(ii) A refugee admitted under 8 U.S.C. 1157 and possesses valid
evidence of unrestricted employment authorization; or
(iii) An alien granted asylum under 8 U.S.C. 1158, and possesses
valid evidence of unrestricted employment authorization.
(b) To determine an applicant's immigration status, TSA checks
relevant Federal databases and may perform other checks, including
verifying the validity of the applicant's social security number or
alien registration number.
Sec. 1572.107 Other analyses.
(a) An applicant poses a security threat and is therefore
disqualified under this section when TSA determines or suspects the
applicant of posing a threat--
(1) To national security; or
(2) To transportation security; or
(3) Of terrorism.
(b) TSA checks the following databases and analyzes the resulting
information before determining that an applicant does not pose a
security threat warranting denial of an HME:
(1) Interpol and other international databases, as appropriate;
(2) Terrorist watchlists and related databases; and
[[Page 68747]]
(3) Any other databases relevant to determining whether an
applicant poses or is suspected of posing a security threat, or that
confirm an applicant's identity.
(c) TSA may determine that an applicant poses a security threat if
the search conducted under this part reveals extensive foreign or
domestic criminal convictions; a conviction for a serious crime not
listed in Sec. 1572.103, or a period of foreign or domestic
imprisonment that exceeds 365 consecutive days.
Sec. 1572.109 Mental capacity.
(a) An applicant has lacking mental capacity if he or she has
been--
(1) Adjudicated as lacking mental capacity; or
(2) Committed to a mental institution.
(b) An applicant is adjudicated as lacking mental capacity if--
(1) A court, board, commission, or other lawful authority has
determined that the applicant, as a result of marked subnormal
intelligence, mental illness, incompetence, condition, or disease, is a
danger to him- or herself or others, or lacks the mental capacity to
contract or manage his or her own affairs.
(2) This includes a finding of insanity by a court in a criminal
case; and a finding of incompetence to stand trial or a finding of not
guilty by reason of lack of mental responsibility by any court, or
pursuant to articles 50a and 76b of the Uniform Code of Military
Justice (10 U.S.C. 850a and 876b).
(c) An applicant is committed to a mental institution if he or she
is formally committed to a mental institution by a court, board,
commission, or other lawful authority, including involuntary commitment
and commitment for lacking mental capacity, mental illness, and drug
use. This does not include a commitment to a mental institution for
observation or voluntary admission to a mental institution.
Sec. Sec. 1572.111-1572.139 [Reserved]
Sec. 1572.141 Appeal procedures.
(a) Scope. This section applies to applicants who wish to appeal an
Initial Determination of Threat Assessment.
(b) Grounds for Appeal. An applicant may appeal an Initial
Determination of Threat Assessment if the applicant is asserting that
he or she meets the security threat assessment standards identified in
Sec. 1572.5(c).
(c) Appeal. An applicant initiates an appeal by submitting a
written reply to TSA or written request for materials from TSA. If the
applicant fails to initiate an appeal within 30 days after receipt, the
Initial Determination of Threat Assessment becomes final, and TSA
serves a Final Determination of Threat Assessment on the State in which
the applicant applied.
(1) Request for materials. Within 30 days after the date of service
of the Initial Determination of Threat Assessment, the applicant may
serve upon TSA a written request for copies of the materials upon which
the Initial Determination was based.
(2) TSA response. (i) Within 30 days after receiving the
applicant's request for materials, TSA serves copies of the releasable
materials upon the applicant on which the Initial Determination was
based. TSA will not include any classified information or other
protected information described in paragraph (f) of this section.
(ii) Within 30 days after receiving the applicant's request for
materials or written reply, TSA may request additional information or
documents from the applicant that TSA believes are necessary to make a
Final Determination.
(3) Correction of records. If the Initial Determination of Threat
Assessment was based on a record that the applicant believes is
erroneous, the applicant may correct the record, as follows:
(i) The applicant may contact the jurisdiction or entity
responsible for the information and attempt to correct or complete
information contained in his or her record.
(ii) The applicant must provide TSA with the revised record, or a
certified true copy of the information from the appropriate entity,
before TSA may determine that the applicant meets the standards for the
security threat assessment.
(4) Reply. (i) The applicant may serve upon TSA a written reply to
the Initial Determination of Threat Assessment within 30 days after
service of the Initial Determination, or 30 days after the date of
service of TSA's response to the applicant's request for materials
under paragraph (d)(2) of this section, if the applicant served such
request. The reply must include the rationale and information on which
the applicant disputes TSA's Initial Determination.
(ii) In an applicant's reply, TSA will consider only material that
is relevant to whether the applicant meets the standards described in
paragraph (d) of this section for the security threat assessment in
paragraph (b) of this section.
(5) Final determination. Within 30 days after TSA receives the
applicant's reply, TSA serves a Final Determination of Threat
Assessment or a Withdrawal of the Initial Determination as provided in
paragraphs (d) or (e) of this section.
(d) Final Determination of Threat Assessment. (1) In the case of an
appeal of an Initial Determination of Threat Assessment that is based
on criminal offense under Sec. 1572.103; immigration status under
Sec. 1572.105; or mental competency under Sec. 1572.109; if the
Director concludes that the applicant does not meet the security threat
assessment standards described in Sec. 1572.5, TSA serves a Final
Determination of Threat Assessment upon the applicant and the issuing
State.
(2) In the case of an appeal of an Initial Determination of Threat
Assessment that is based on a threat to national security or
transportation security, or of terrorism under Sec. 1572.107, if the
Assistant Secretary concludes that the applicant does not meet the
security threat assessment standards described in Sec. 1572.5, TSA
serves a Final Determination of Threat Assessment upon the applicant
and issuing State.
(3) The Final Determination includes a statement that the Director
or Assistant Secretary has reviewed the Initial Determination, the
applicant's reply and any accompanying information, if any, and any
other materials or information available to him or her and has
determined that the applicant poses a security threat warranting denial
of an HME.
(e) Withdrawal of Initial Determination. If the Director or
Assistant Secretary concludes that the applicant does not pose a
security threat warranting denial of the HME, TSA serves a Withdrawal
of the Initial Determination upon the applicant.
(f) Nondisclosure of certain information. In connection with the
procedures under this section, TSA does not disclose classified
information to the applicant, as defined in Executive Order 12968
section 1.1(d), and reserves the right not to disclose any other
information or material not warranting disclosure or protected from
disclosure under law.
(g) Extension of time. TSA may grant an applicant an extension of
time of the limits described in this section for good cause shown. An
applicant's request for an extension of time must be in writing and be
received by TSA within a reasonable time before the due date to be
extended. TSA may grant itself an extension of time for good cause.
(h) Judicial review. For purposes of judicial review, the Final
Determination of Threat Assessment constitutes a final TSA order in
accordance with 49 U.S.C. 46110.
[[Page 68748]]
(i) Appeal of immediate revocation. (1) If TSA directs a State to
revoke an HME pursuant to Sec. 1572.13(a) by issuing an Initial
Determination of Threat Assessment and Immediate Revocation, the
applicant may appeal this determination by following the appeal
procedures described in paragraph (c) of this section.
Sec. 1572.143 Waiver procedures.
(a) Scope. This section applies to an applicant who--
(1) Has a disqualifying criminal offense described in Sec.
1572.103(a)(5) through (a)(9), and paragraph 1572.103(a)(10) if the
underlying criminal offense is in paragraphs 1572.103(a)(5) through
(a)(9); or
(2) Has a disqualifying criminal offense described in Sec.
1572.103(b); or
(3) Lacks mental capacity as described in Sec. 1572.109.
(b) Waivers. (1) An applicant initiates a waiver request by sending
a written request to TSA for a waiver at any time, but not later than
30 days after the date of service of the Final Determination of Threat
Assessment.
(2) In determining whether to grant a waiver, TSA will consider the
following factors:
(i) The circumstances of the disqualifying act or offense;
(ii) Restitution made by the applicant;
(iii) Any Federal or State mitigation remedies;
(iv) Court records or official medical release documents indicating
that the individual no longer lacks mental capacity;
(v) Other factors that indicate the applicant does not pose a
security threat warranting denial of the HME.
(c) Grant or denial of waivers. The Director will send a written
decision granting or denying the waiver to the applicant and a
Determination of No Security Threat to the State in which the applicant
applied for the HME, within 30 days after service the applicant's
request for a waiver, or longer period as TSA may determine for good
cause.
(d) Extension of time. TSA may grant an applicant an extension of
time of the limits described in paragraph (b) and (c) of this section
for good cause shown. An applicant's request for an extension of time
must be in writing and be received by TSA within a reasonable time
before the due date to be extended. TSA may grant itself an extension
of time for good cause.
Subpart C--Transportation of Explosives From Foreign Locations
Sec. 1572.201 Transportation of explosives from Canada to the United
States via commercial motor vehicle.
(a) Applicability. This section applies to carriers that carry
explosives from Canada to the United States using a driver who is not a
United States citizen or lawful permanent resident alien of the United
States.
(b) Terms used in this section. For purposes of this section:
Carrier means any ``motor carrier'' or ``motor private carrier'' as
defined in 49 U.S.C. 13102(12) and (13), respectively.
Customs Service means the United States Customs Service.
Explosive means a material that has been examined by the Associate
Administrator for Hazardous Materials Safety, Research and Special
Programs Administration, in accordance with 49 CFR 173.56, and
determined to meet the definition for a Class 1 material in 49 CFR
173.50.
Known carrier means a person that has been determined by the
Governments of Canada and the United States to be a legitimate business
operating in accordance with all applicable laws and regulations
governing the transportation of explosives.
Known driver means a driver of a motor vehicle who has been
determined by the Governments of Canada and the United States to
present no known security concern.
Known offeror means an offeror that has been determined by the
Governments of Canada and the United States to be a legitimate business
operating in accordance with all applicable laws and regulations
governing the transportation of explosives.
Lawful permanent resident alien means a lawful permanent resident
alien of the United States as defined by 8 U.S.C. 1101(a)(2).
Offeror means the person offering a shipment to the carrier for
transportation from Canada to the United States, and may also be known
as the ``consignor'' in Canada.
(c) Prior approval of carrier, offeror, and driver. (1) No carrier
may transport in commerce any explosive into the United States from
Canada via motor vehicle if the driver of the vehicle is a not a United
States citizen or lawful permanent resident alien unless the carrier,
offeror, and driver are identified on a TSA list as a known carrier,
known offeror, and known driver, respectively.
(2) The carrier must ensure that it, its offeror, and its driver
have been determined to be a known carrier, known offeror, and known
driver, respectively. If any has not been so determined, the carrier
must submit the following information to Transport Canada:
(i) The carrier must provide its:
(A) Official name;
(B) Business number;
(C) Any trade names; and
(D) Address.
(ii) The following information about any offeror of explosives
whose shipments it will carry:
(A) Official name;
(B) Business number; and
(C) Address.
(iii) The following information about any driver the carrier may
use to transport explosives into the United States from Canada who is
neither a United States citizen nor lawful permanent resident alien of
the United States:
(A) Full name;
(B) Canada Commercial Driver's License number; and
(C) Both current and most recent prior residential addresses.
(3) Transport Canada will determine that the carrier and offeror
are legitimately doing business in Canada and will also determine that
the drivers are properly licensed and present no known problems for
purposes of this section. Transport Canada will notify TSA of these
determinations by forwarding to TSA lists of known carriers, offerors,
and drivers and their identifying information.
(4) TSA will update and maintain the list of known carriers,
offerors, and drivers and forward the list to the Customs Service.
(5) Once included on the list, the carriers, offerors, and drivers
need not obtain prior approval for future transport of explosives under
this section.
(d) TSA checks. TSA may periodically check the data on the
carriers, offerors and drivers to confirm their continued eligibility
and may remove from the list any that TSA determines is not known or is
a threat to security.
(e) At the border--
(1) Driver who is not a United States citizen or lawful permanent
resident alien. Upon arrival at the border, and prior to entry into the
United States, the driver must provide a valid Canadian commercial
driver's license to the Customs Service.
(2) Driver who is a United States citizen or lawful permanent
resident alien. If the Customs Service cannot verify that the driver is
on the list, and if the driver is a United States citizen or lawful
permanent resident alien, the
[[Page 68749]]
driver may be cleared by the Customs Service upon providing:
(i) A valid United States passport; or
(ii) One or more other document(s) including a form of United
States Federal or state government-issued identification with
photograph, acceptable to the Customs Service.
(3) Compliance. If a carrier attempts to enter the United States
without having complied with this section, the Customs Service will
deny entry of the explosives and may take other appropriate action.
Sec. 1572.203 Transportation of explosives from Canada to the United
States via railroad carrier.
(a) Applicability. This section applies to railroad carriers that
carry explosives from Canada to the United States using a train crew
member who is not a United States citizen or lawful permanent resident
alien of the United States.
(b) Terms under this section. For purposes of this section:
Customs Service means the United States Customs Service.
Explosive means a material that has been examined by the Associate
Administrator for Hazardous Materials Safety, Research and Special
Programs Administration, in accordance with 49 CFR 173.56, and
determined to meet the definition for a Class 1 material in 49 CFR
173.50.
Known railroad carrier means a person that has been determined by
the Governments of Canada and the United States to be a legitimate
business operating in accordance with all applicable laws and
regulations governing the transportation of explosives.
Known offeror means an offeror that has been determined by the
Governments of Canada and the United States to be a legitimate business
operating in accordance with all applicable laws and regulations
governing the transportation of explosives.
Known train crew member means an individual used to transport
explosives from Canada to the United States who has been determined by
the Governments of Canada and the United States to present no known
security concern.
Lawful permanent resident alien means a lawful permanent resident
alien of the United States as defined by 8 U.S.C. 1101(a)(2).
Offeror means the person offering a shipment to the railroad
carrier for transportation from Canada to the United States, and may
also be known as the ``consignor'' in Canada.
Railroad carrier means ``railroad carrier'' as defined in 49 U.S.C.
20102.
(c) Prior approval of railroad carrier, offeror, and train crew
member. (1) No railroad carrier may transport in commerce any explosive
into the United States from Canada via a train operated by a crew
member who is not a United States citizen or lawful permanent resident
alien unless the railroad carrier, offeror, and train crew member are
identified on a TSA list as a known railroad carrier, known offeror,
and known train crew member, respectively.
(2) The railroad carrier must ensure that it, its offeror, and each
of its crew members have been determined to be a known railroad
carrier, known offeror, and known train crew member, respectively. If
any has not been so determined, the railroad carrier must submit the
following information to Transport Canada:
(i) The railroad carrier must provide its:
(A) Official name;
(B) Business number;
(C) Any trade names; and
(D) Address.
(ii) The following information about any offeror of explosives
whose shipments it will carry:
(A) Official name;
(B) Business number; and
(C) Address.
(iii) The following information about any train crew member the
railroad carrier may use to transport explosives into the United States
from Canada who is neither a United States citizen nor lawful permanent
resident alien:
(A) Full name; and
(B) Both current and most recent prior residential addresses.
(3) Transport Canada will determine that the railroad carrier and
offeror are legitimately doing business in Canada and will also
determine that the train crew members present no known problems for
purposes of this section. Transport Canada will notify TSA of these
determinations by forwarding to TSA lists of known railroad carriers,
offerors, and train crew members and their identifying information.
(4) TSA will update and maintain the list of known railroad
carriers, offerors, and train crew members and forward the list to the
Customs Service.
(5) Once included on the list, the railroad carriers, offerors, and
train crew members need not obtain prior approval for future transport
of explosives under this section.
(d) TSA checks. TSA may periodically check the data on the railroad
carriers, offerors, and train crew members to confirm their continued
eligibility and may remove from the list any that TSA determines is not
known or is a threat to security.
(e) At the border (1) Train crew members who are not United States
citizens or lawful permanent resident aliens. Upon arrival at a point
designated by the Customs Service for inspection of trains crossing
into the United States, the train crew members of a train transporting
explosives must provide sufficient identification to the Customs
Service to enable that agency to determine if each crew member is on
the list of known train crew members maintained by TSA.
(2) Train crew members who are United States citizens or lawful
permanent resident aliens. If the Customs Service cannot verify that
the crew member is on the list and the crew member is a United States
citizen or lawful permanent resident alien, the crew member may be
cleared by the Customs Service upon providing:
(i) A valid United States passport; or
(ii) One or more other document(s) including a form of United
States Federal or state government-issued identification with
photograph, acceptable to the Customs Service.
(3) Compliance. If a carrier attempts to enter the United States
without having complied with this section, the Customs Service will
deny entry of the explosives and may take other appropriate action.
Issued in Arlington, Virginia on November 19, 2004.
David M. Stone,
Assistant Secretary.
[FR Doc. 04-26066 Filed 11-19-04; 4:33 pm]
BILLING CODE 4910-62-P