49 C.F.R. Subpart A—Requirements To Undergo Security Threat Assessments
Title 49 - Transportation
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.
Title 49: Transportation
PART 1572—CREDENTIALING AND BACKGROUND CHECKS FOR LAND TRANSPORTATION SECURITY
Subpart A—Requirements To Undergo Security Threat Assessments
§ 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.
