49 C.F.R. Subpart B—Standards, Appeals, and Waivers for Security Threat Assessments
Title 49 - Transportation
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.
Title 49: Transportation
PART 1572—CREDENTIALING AND BACKGROUND CHECKS FOR LAND TRANSPORTATION SECURITY
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.
(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.
§ 1572.143 Waiver procedures.
(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.
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