49 C.F.R. PART 1572—CREDENTIALING AND BACKGROUND CHECKS FOR LAND TRANSPORTATION SECURITY
Title 49 - Transportation
Authority: 49 U.S.C. 114, 5103a, 40113, and 46105; 18 U.S.C. 842, 845; Sec. 520, Pub. L. 108-90, 117 Stat. 1156 (6 U.S.C. 469)
Source: 69 FR 68742, Nov. 24, 2004, unless otherwise noted.
This part prescribes regulations for credentialing and security threat assessments for certain maritime and land transportation workers. 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 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. (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 §1572.103; (2) The applicant meets the immigration status requirements described in §1572.105; (3) TSA conducts the analyses described in §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 §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. (a) An applicant may apply to TSA for a waiver of the standards described in §1572.5, if the applicant— (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 §1572.103(b); or (3) Has a history of mental incompetence described in §1572.109. (b) [Reserved] (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, §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 §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 §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 §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 §1572.103; (4) Was not convicted or found not guilty by reason of insanity of a disqualifying criminal offense identified in §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 §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 §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. (a) Prohibitions. An applicant does not meet the security threat assessment standards if he or she: (1) Has a disqualifying criminal offense identified in §1572.103, unless TSA grants a waiver under §1572.143; or (2) Does not meet the immigration status requirements identified in §1572.105; or (3) Has been notified by TSA that he or she poses a security threat under §1572.107; or (4) Has been adjudicated as lacking mental capacity or committed to a mental institution as described in §1572.109, unless TSA grants a waiver under §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 §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 §1572.103; or (2) Is adjudicated as lacking mental capacity or committed to a mental institution as described in §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 §1572.13(a). (2) When so notified by the State, an applicant must submit fingerprints and the information required in §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 §1572.13(g) apply to HME transfers. (3) When submitting fingerprints and the applicant information required in §1572.9, the applicant or the applicant's employer is responsible for the TSA fee and the FBI fee. (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 §1572.5 and issues an Initial Determination of Threat Assessment and Immediate Revocation. (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 §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 §1572.9 for at least one year in paper or electronic form. (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 §1572.13(f)(1), the State— (i) Collects fingerprints and applicant information required in §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 §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 §1572.103 and, if applicable, §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 §1572.9; (2) TSA searches domestic and international government databases described in §§1572.105, 1572.107, and 1572.109; (3) TSA adjudicates the results of the check in accordance with §§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 §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 §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 §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, 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 §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 §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 §1572.143. This subpart applies to applicants who hold or are applying to renew or transfer an HME. (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. (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. (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 (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 §1572.103, or a period of foreign or domestic imprisonment that exceeds 365 consecutive days. (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. (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 §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 §1572.103; immigration status under §1572.105; or mental competency under §1572.109; if the Director concludes that the applicant does not meet the security threat assessment standards described in §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 §1572.107, if the Assistant Secretary concludes that the applicant does not meet the security threat assessment standards described in §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. (i) Appeal of immediate revocation. (1) If TSA directs a State to revoke an HME pursuant to §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. (a) Scope. This section applies to an applicant who— (1) Has a disqualifying criminal offense described in §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 §1572.103(b); or (3) Lacks mental capacity as described in §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. (a) Applicability. This section applies to commercial motor vehicle drivers licensed by Canada or Mexico. (b) Terms used in this section. For purposes of this section: FAST means Free and Secure Trade program of the Bureau of Customs and Border Protection (CBP), a cooperative effort between CBP and the governments of Canada and Mexico to coordinate processes for the clearance of commercial shipments at the border. Hazardous materials means any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73. See 49 CFR 383.5. 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. (c) Background check required. A commercial vehicle driver who is licensed by Canada or Mexico may not transport hazardous materials into or within the United States unless the driver has undergone a background check similar to the one required of U.S.-licensed operators with a hazardous materials endorsement (HME) on a commercial drivers license, as prescribed in §1572.5. (1) A commercial vehicle driver who holds a current Free and Secure Trade (FAST) program card satisfies the requirements of this section. (2) Commercial vehicle drivers who wish to apply for a FAST program card must contact the FAST Commercial Driver Program, Bureau of Customs and Border Protection (CBP), Department of Homeland Security. [71 FR 44881, Aug. 7, 2006] (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. Source: 70 FR 2558, Jan. 13, 2005, unless otherwise noted.
(a) Scope. This part applies to: (1) States that issue a hazardous materials endorsement for a commercial driver's license; (2) Individuals who apply for or renew a hazardous materials endorsement for a commercial driver's license and must undergo a security threat assessment under 49 CFR part 1572; and (3) Entities who collect fees from such individuals on behalf of TSA. (b) Terms. As used in this part: Commercial driver's license (CDL) is used as defined in 49 CFR 383.5. Day means calendar day. Endorsement is used as defined in 49 CFR 383.5. FBI Fee means the fee required for the cost of the Federal Bureau of Investigation to process fingerprint identification records and name checks. Hazardous materials means any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73. Hazardous materials endorsement (HME) means the authorization for an individual to transport hazardous materials in commerce, which must be issued on the individual's commercial driver's license. Information Collection Fee means the fee required in this part for the cost of collecting and transmitting fingerprints and other applicant information under 49 CFR part 1572. State means a State of the United States or the District of Columbia. Threat Assessment Fee means the fee required in this part for the cost of TSA adjudicating security threat assessments, appeals, and waivers under 49 CFR part 1572. TSA agent means an entity approved by TSA to collect and transmit fingerprints and applicant information in accordance with 49 CFR part 1572 and fees in accordance with this part. Source: 70 FR 2558, Jan. 13, 2005, unless otherwise noted.
(a) State collection and transmission. If a State collects fingerprints and applicant information under 49 CFR part 1572, the State must collect and transmit to TSA the Threat Assessment Fee in accordance with the requirements of §1572.403. The State also must collect and remit the FBI Fee in accordance with established procedures. (b) TSA agent collection and transmission. If a TSA agent collects fingerprints and applicant information under 49 CFR part 1572, the agent must— (1) Collect the Information Collection Fee, Threat Assessment Fee, and FBI Fee in accordance with procedures approved by TSA; (2) Transmit to TSA the Threat Assessment Fee in accordance with procedures approved by TSA; and (3) Transmit to TSA the FBI Fee in accordance with procedures approved by TSA and the Federal Bureau of Investigation. This section describes the procedures that a State that collects fingerprints and applicant information under 49 CFR part 1572, and the procedures an individual who applies for a new HME or renewal of an existing HME for a CDL in that State, must follow for collection and transmission of the Threat Assessment Fee and the FBI Fee. (a) Imposition of fees. (1) The following Threat Assessment Fee is required for TSA to conduct a security threat assessment under 49 CFR part 1572 for an individual who applies for a new HME or renewal of an existing HME: $34. (2) The following FBI Fee is required for the FBI to process fingerprint identification records and name checks required under 49 CFR part 1572: the fee collected by the FBI under 28 U.S.C. 534. (3) An individual who applies for a new or renewed HME, or the individual's employer, must remit to the State the Threat Assessment Fee and the FBI Fee, in a form and manner approved by TSA and the State, when the individual submits the application for the HME to the State. (b) Collection of fees. (1) A State must collect the Threat Assessment Fee and FBI Fee when an individual submits an application to the State for a new HME or renewal of an existing HME. (2) Once TSA receives an application from a State for a security threat assessment under 49 CFR part 1572, the State is liable for the Threat Assessment Fee. (3) Nothing in this subpart prevents a State from collecting any other fees that a State may impose on an individual who applies for a new HME or renewal of an existing HME. (c) Handling of fees. (1) A State must safeguard all Threat Assessment Fees from the time of collection until remittance to TSA. (2) All Threat Assessment Fees are held in trust by a State for the beneficial interest of the United States in paying for the costs of conducting the security threat assessment required by 49 U.S.C. 5103a and 49 CFR part 1572. A State holds neither legal nor equitable interest in the Threat Assessment Fees except for the right to retain any accrued interest on the principal amounts collected pursuant to this section. (3) A State must account for Threat Assessment Fees separately, but may commingle such fees with other sources of revenue. (d) Remittance of fees. (1) TSA will generate and provide an invoice to a State on a monthly basis. The invoice will indicate the total fee dollars (number of applicants times the Threat Assessment Fee) that are due for the month. (2) A State must remit to TSA full payment for the invoice within 30 days after TSA sends the invoice. (3) TSA accepts Threat Assessment Fees only from a State, not from an individual applicant for an HME. (4) A State may retain any interest that accrues on the principal amounts collected between the date of collection and the date the Threat Assessment Fee is remitted to TSA in accordance with paragraph (d)(2) of this section. (5) A State may not retain any portion of the Threat Assessment Fee to offset the costs of collecting, handling, or remitting Threat Assessment Fees. (6) Threat Assessment Fees remitted to TSA by a State must be in U.S. currency and made payable to the “Transportation Security Administration.” (7) Threat Assessment Fees must be remitted by check, money order, wire or any other payment method acceptable to TSA. (8) TSA will not issue any refunds of Threat Assessment Fees. (9) If a State does not remit the Threat Assessment Fees for any month, TSA may decline to process any HME applications from that State. This section describes the procedures that an individual who applies for a new HME or renewal of an existing HME for a CDL must follow if a TSA agent collects and transmits the Information Collection Fee, Threat Assessment Fee, and FBI Fee. (a) Imposition of fees. (1) The following Information Collection Fee is required for a TSA agent to collect and transmit fingerprints and applicant information in accordance with 49 CFR part 1572: $38. (2) The following Threat Assessment Fee is required for TSA to conduct a security threat assessment under 49 CFR part 1572 for an individual who applies for a new HME or renewal of an existing HME: $34. (3) The following FBI Fee is required for the FBI to process fingerprint identification records and name checks required under 49 CFR part 1572: The fee collected by the FBI under 28 U.S.C. 534. (4) An individual who applies for a new or renewed HME, or the individual's employer, must remit to the TSA agent the Information Collection Fee, Threat Assessment Fee, and FBI Fee, in a form and manner approved by TSA, when the individual submits the application required under 49 CFR part 1572. (b) Collection of fees. A TSA agent will collect the fees required under this section when an individual submits an application to the TSA agent in accordance with 49 CFR part 1572. (c) Remittance of fees. (1) Fees required under this section that are remitted to a TSA agent must be made in U.S. currency and made payable to the “Transportation Security Administration.” (2) Fees required under this section must be remitted by check, money order, wire or any other payment method acceptable to TSA. (3) TSA will not issue any refunds of fees required under this section. (4) Applications submitted in accordance with 49 CFR part 1572 will be processed only upon receipt of all applicable fees under this section.
Title 49: Transportation
PART 1572—CREDENTIALING AND BACKGROUND CHECKS FOR LAND TRANSPORTATION SECURITY
Section Contents
§ 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.
§ 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.
§ 1572.201 Transportation of hazardous materials via commercial motor vehicle from Canada or Mexico to and within the United States.
§ 1572.203 Transportation of explosives from Canada to the United States via railroad carrier.
§ 1572.301 Scope and definitions.
§§ 1572.303-1572.399 [Reserved]
§ 1572.401 Fee collection options.
§ 1572.403 Fee procedures for collection by States.
§ 1572.405 Fee procedures for collection by TSA agents.
Subpart A—Requirements To Undergo Security Threat Assessments
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§ 1572.1 Applicability.
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§ 1572.3 Terms used in this part.
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§ 1572.5 Scope and standards for hazardous materials endorsement security threat assessment.
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§ 1572.7 Waivers of hazardous materials endorsement security threat assessment standards.
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§ 1572.9 Applicant information required for a security threat assessment for a hazardous materials endorsement.
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§ 1572.11 Applicant responsibilities for a security threat assessment for a hazardous materials endorsement.
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§ 1572.13 State responsibilities for issuance of hazardous materials endorsement.
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§ 1572.15 Procedures for security threat assessment.
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Subpart B—Standards, Appeals, and Waivers for Security Threat Assessments
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§ 1572.101 Scope.
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§ 1572.103 Disqualifying criminal offenses.
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§ 1572.105 Immigration status.
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§ 1572.107 Other analyses.
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§ 1572.109 Mental capacity.
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§§ 1572.111-1572.139 [Reserved]
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§ 1572.141 Appeal procedures.
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§ 1572.143 Waiver procedures.
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Subpart C—Transportation of Hazardous Materials to and Within the United States by Land Modes
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§ 1572.201 Transportation of hazardous materials via commercial motor vehicle from Canada or Mexico to and within the United States.
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§ 1572.203 Transportation of explosives from Canada to the United States via railroad carrier.
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Subpart D—Fees for Security Threat Assessments for Individuals
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§ 1572.301 Scope and definitions.
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§§ 1572.303-1572.399 [Reserved]
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Subpart E—Fees for Security Threat Assessments for Hazmat Drivers
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§ 1572.401 Fee collection options.
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§ 1572.403 Fee procedures for collection by States.
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§ 1572.405 Fee procedures for collection by TSA agents.
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