68720 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

Transportation Security Administration 

49 CFR Part 1572

[Docket No. TSA–2003–14610; Amendment 

No. 1572–4] 

RIN 1652–AA17

Security Threat Assessment for 

Individuals Applying for a Hazardous 

Materials Endorsement for a 

Commercial Driver’s License

AGENCY: Transportation Security 

Administration (TSA), DHS.

ACTION: Interim final rule; request for 

comments. 

SUMMARY: TSA is amending standards 

relating to security threat assessments of 

commercial truck drivers who are 

authorized to transport hazardous 

materials. TSA is adding definitions, 

and making organizational and 

substantive changes to the current 

standards codified at 49 Code of Federal 

Regulations (CFR) part 1572. First, this 

rule requires each State to declare 

whether it wishes to capture and submit 

fingerprints, applicant information, and 

fees itself, or alternatively chooses to 

have TSA complete those tasks. Second, 

TSA is changing the standards to permit 

certain aliens who are qualified to hold 

a commercial drivers license to apply 

for a security threat assessment. Third, 

TSA is removing one felony offense, 

simple drug possession, from the list of 

disqualifying crimes, and adding 

unlawful purchase, receipt, transfer, 

shipping, transporting, import, export, 

and storage of a firearm or explosives to 

the list. TSA is reclassifying the 

criminal offense of arson as an interim 

rather than permanent disqualifier, and 

reclassifying the offense of murder as a 

permanent rather than an interim 

disqualifier. TSA now prohibits 

individuals convicted of the most 

serious crimes, such as treason, from 

applying for a waiver. TSA is increasing 

the response time limits for appeals and 

waivers. TSA is changing the rule 

concerning transferring a hazardous 

materials endorsement from one State to 

another so that drivers do not have to 

undergo a new background check when 

obtaining a license in a new State, 

subject to some restrictions. TSA is 

enhancing the appeal procedures for an 

individual who is determined to pose a 

security threat as a result of the 

intelligence-related check. The rule 

moves the start date of the fingerprintbased checks for transfer and renewal 

applicants to May 31, 2005. The rule no 

longer requires the States to forward all 

driver applications to TSA, but the 

States must retain the applications for 

one year. States that elect to collect 

fingerprints and driver information 

must submit the information and 

fingerprints electronically, with some 

initial assistance from TSA. Finally, 

TSA is reducing the amount of advance 

notice the States must provide to drivers 

who hold hazardous materials 

endorsements regarding the need for a 

security threat assessment upon 

renewal. TSA is making these changes 

in response to comments received from 

the affected parties and to clarify further 

the implementation of this program.

DATES: Effective Date: This rule is 

effective November 24, 2004. 

Comment Date: Submit comments by 

December 27, 2004.

ADDRESSES: You may submit comments, 

identified by the TSA docket number to 

this rulemaking, using any one of the 

following methods:

Comments Filed Electronically: You 

may submit comments through the 

docket Web site at http://dms.dot.gov.

Please be aware that anyone is able to 

search the electronic form of all 

comments received into any of our 

dockets by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

You may review the applicable Privacy 

Act Statement published in the Federal 

Register on April 11, 2000 (65 FR 

19477), or you may visit http://

dms.dot.gov.

You also may submit comments 

through the Federal eRulemaking portal 

at http://www.regulations.gov.

Comments Submitted by Mail, Fax, or 

In Person: Address or deliver your 

written, signed comments to the Docket 

Management System, U.S. Department 

of Transportation, Room Plaza 401, 400 

Seventh Street, SW., Washington, DC 

20590–0001; Fax: 202–493–2251. 

Comments on Paperwork Collection: 

Comments may be faxed to the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 

Attention: DHS–TSA Desk Officer, at 

(202) 395–5806. Comments may be 

mailed to the Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, 725 17th 

Street, NW., Washington, DC 20503, 

Attention: DHS–TSA Desk Officer. 

Declarations Submitted by the States: 

Address the State Declarations required 

in § 1572.13(f) to: Program Manager, 

Credentialing Program Office, 601 S. 

12th St., 8th floor, Arlington, VA, 

22202. 

Reviewing Comments in the Docket: 

You may review the public docket 

containing comments in person in the 

Dockets Office between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The Dockets Office is 

located on the plaza level of the NASSIF 

Building at the Department of 

Transportation address above. Also, you 

may review public dockets on the 

Internet at http://dms.dot.gov.

See SUPPLEMENTARY INFORMATION for 

format and other information about 

comment submissions.

FOR FURTHER INFORMATION CONTACT:

Kevin Johnson, Credentialing Program 

Office, Transportation Security 

Administration HQ, East Building, 601 

South 12th Street, Arlington, VA 22202–

4220; telephone (571) 227–2155; e-mail 

Kevin.Johnson@dhs.gov.

Christine Beyer, Office of Chief 

Counsel, Transportation Security 

Administration, HQ, East Tower, 601 

South 12th St., Arlington, VA 22202–

4220; 571–227–2657; e-mail: 

Christine.Beyer@dhs.gov.

SUPPLEMENTARY INFORMATION: 

Comments Invited 

This Interim Final Rule is being 

adopted without prior notice and prior 

public comment. However, to the 

maximum extent possible, TSA 

provides an opportunity for public 

comment on regulations issued without 

prior notice. Accordingly, TSA invites 

interested persons to participate in this 

rulemaking by submitting written 

comments, data, or views. We also 

invite comments relating to the 

economic, environmental, energy, or 

federalism impacts that might result 

from adopting the requirements in this 

document. See ADDRESSES above for 

information on where to submit 

comments. 

With each comment, please include 

your name and address, identify the 

docket number at the beginning of your 

comments, and give the reason for each 

comment. The most helpful comments 

reference a specific portion of the rule, 

explain the reason for any 

recommended change, and include 

supporting data. You may submit 

comments and material electronically, 

in person, by mail, or fax as provided 

under ADDRESSES, but please submit 

your comments and material by only 

one means. If you submit comments by 

mail or delivery, submit them in two 

copies, in an unbound format, no larger 

than 8.5 by 11 inches, suitable for 

copying and electronic filing. 

If you want TSA to acknowledge 

receipt of your comments on this 

rulemaking, include with your 

comments a self-addressed, stamped 

postcard on which the docket number 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68721

1Pub. L. 107–71, November 19, 2001, 115 Stat. 

597.

2 68 FR 23852 (May 5, 2003).

3 68 FR 63033 (November 7, 2003).

4 69 FR 17696 (April 6, 2004).

5 Department of Homeland Security 

Appropriations Act, 2004, Section 520, Pub. L. 108–

90, October 1, 2003, 117 Stat. 1137.

6Pub. L. 107–56, October 25, 2001, 115 Stat. 272.

appears. We will stamp the date on the 

postcard and mail it to you. 

Except for comments containing 

confidential information and Sensitive 

Security Information (SSI), we will file 

all comments we receive in the public 

docket, as well as a report summarizing 

each substantive public contact with 

TSA personnel concerning this 

rulemaking. The docket is available for 

public inspection before and after the 

comment closing date. 

We will consider all comments we 

receive on or before the closing date for 

comments. We will consider comments 

filed late to the extent practicable. We 

may change this rulemaking in light of 

the comments we receive. 

Availability of Rulemaking Document 

You can get an electronic copy using 

the Internet by—

(1) Searching the Department of 

Transportation’s electronic Docket 

Management System (DMS) web page 

(http://dms.dot.gov/search); 

(2) Accessing the Government 

Printing Office’s web page at http://

www.access.gpo.gov/su_docs/aces/

aces140.html; or 

(3) Visiting the TSA’s Law and Policy 

web page at http://www.tsa.dot.gov/

public/index.jsp.

In addition, copies are available by 

writing or calling the individual in the 

FOR FURTHER INFORMATION CONTACT

section. Make sure to identify the docket 

number of this rulemaking. 

Small Entity Inquiries 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 requires TSA to comply with small 

entity requests for information and 

advice about compliance with statutes 

and regulations within TSA’s 

jurisdiction. Any small entity that has a 

question regarding this document may 

contact the person listed in FOR FURTHER

INFORMATION CONTACT. Persons can 

obtain further information regarding 

SBREFA on the Small Business 

Administration’s web page at http://

www.sba.gov/advo/laws/law_lib.html.

Abbreviations and Terms Used in This 

Document 

ATSA—Aviation and Transportation 

Security Act 

ATF—Bureau of Alcohol, Tobacco, 

Firearms, and Explosives 

CDC—Centers for Disease Control and 

Prevention 

CDL—Commercial drivers license 

CDLIS—Commercial drivers license 

information system 

CHRC—Criminal history records check 

CJIS—Criminal Justice Information 

Services Division

DHS—Department of Homeland 

Security 

DOJ—Department of Justice 

DMV—Department of Motor Vehicles 

DOT—Department of Transportation 

FBI—Federal Bureau of Investigation 

FMCSA—Federal Motor Carrier Safety 

Administration 

HSA—Homeland Security Act 

HME—Hazardous materials 

endorsement 

HMR—Hazardous materials regulations 

MTSA—Maritime Transportation 

Security Act 

RSPA—Research and Special Programs 

Administration 

SEA—Safe Explosives Act 

TSA—Transportation Security 

Administration 

USA PATRIOT Act—Uniting and 

Strengthening America by Providing 

Appropriate Tools Required to 

Intercept and Obstruct Terrorism Act 

I. Background 

In response to the September 11 

terrorist attacks on the United States, 

Congress passed the Aviation and 

Transportation Security Act (ATSA), 

which established the Transportation 

Security Administration (TSA).1 TSA 

was created as an agency within the 

Department of Transportation (DOT), 

operating under the direction of the 

Under Secretary of Transportation for 

Security. Effective on March 1, 2003, 

TSA became an agency of the 

Department of Homeland Security 

(DHS), and the head of TSA is now the 

Assistant Secretary for Homeland 

Security, Transportation Security 

Administration (Assistant Secretary).

On May 5, 2003, TSA published an 

interim final rule (May 5 IFR) that 

requires a security threat assessment of 

commercial drivers who are authorized 

to transport hazardous materials in 

commerce.2 The May 5 IFR 

implemented several statutory mandates 

discussed below, including fingerprintbased criminal history records checks 

(CHRC), checks against international 

databases, and appeal and waiver 

procedures. The May 5 IFR required 

CHRC to begin no later than November 

3, 2003.

TSA requested and received 

comments from the States, labor 

organizations, and representatives of the 

trucking industry. In addition, TSA held 

working group sessions with the States 

to discuss potential fingerprinting 

systems that would achieve the 

statutory requirements, but would not 

adversely impact the States. Based on 

the comments received and our working 

sessions with the States, TSA issued a 

technical amendment in November 

2003 3 to extend the date on which 

submission of fingerprints and applicant 

information would begin to be required. 

The reasons for the amendment were 

that a majority of the States could not 

implement the program by November 

and TSA did not have authority to 

collect fees to cover TSA’s 

implementation costs. The amendment 

required the States to submit 

fingerprints and applicant information 

by April 1, 2004, or request an extension 

of time and produce a fingerprint 

collection plan by April 1, 2004. All 

States were required to have the 

fingerprint collection program in place 

as of December 1, 2004.

In response to the November 2003 

technical amendment, a majority of the 

States asked for an additional extension 

of time because they could not begin 

collecting applicant information or 

fingerprints by the extended deadline of 

April 1, 2004. Therefore, on April 6, 

2004, TSA published a final rule 

removing the April 1 date and 

establishing January 31, 2005, as the 

date on which CHRC must begin.4 The 

Interim Final Rule we publish today 

reorganizes, clarifies, and adds 

operating details to the hazmat program.

In October 2003, legislation was 

enacted that authorized TSA to collect 

user fees to cover the cost of each 

security threat assessment.5 Pursuant to 

this legislation, TSA on November 10, 

2004 (69 FR 65332), published a notice 

of proposed rulemaking (NPRM) to 

establish reasonable fees for the threat 

assessment process. TSA plans to have 

the implementation of the hazmat 

security threat assessment program 

coincide with our ability to collect fees.

II. USA PATRIOT Act 

The Uniting and Strengthening 

America by Providing Appropriate 

Tools Required to Intercept and 

Obstruct Terrorism Act (USA PATRIOT 

Act) was enacted on October 25, 2001.6

Section 1012 of the USA PATRIOT Act 

amended 49 U.S.C. Chapter 51 by 

adding a new section 5103a titled 

‘‘Limitation on issuance of hazmat 

licenses.’’ Section 5103a(a)(1) provides:

A State may not issue to any individual a 

license to operate a motor vehicle 

transporting in commerce a hazardous 

material unless the Secretary of 

Transportation has first determined, upon 

68722 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

7The Secretary of Transportation delegated the 

authority to carry out the provisions of this section 

to the Under Secretary of Transportation for 

Security/Assistant Secretary. 68 FR 10988, March 7, 

2003.

8Pub. L. 107–296, November 25, 2002, 116 Stat. 

2280.

9Since 1970, the Federal explosives law has 

identified a category of persons prohibited from 

possessing explosives as ‘‘adjudicated as a mental 

defective.’’ TSA is replacing this term with 

‘‘adjudicated as lacking mental capacity.’’ However, 

these terms have the same meaning for the purposes 

of the Federal explosives law and the TSA hazmat 

requirements.

10The prohibition in the SEA extends to each 

person—

(5) Who is an alien, other than an alien who—

(A) Is lawfully admitted for permanent residence 

(as that term is defined in section 101(a)(20) of the 

Immigration and Nationality Act); or 

(B) Is in lawful nonimmigrant status, is a refugee 

admitted under section 207 of the Immigration and 

Nationality Act (8 U.S.C. 1157), or is in asylum 

status under section 208 of the Immigration and 

Nationality Act (8 U.S.C. 1158), and—

(i) Is a foreign law enforcement officer of a 

friendly foreign government, as determined by the 

Secretary in consultation with the Secretary of 

State, entering the United States on official law 

enforcement business, and the shipping, 

transporting, possession, or receipt of explosive 

materials is in furtherance of this official law 

enforcement business; or 

(ii) Is a person having the power to direct or cause 

the direction of the management and policies of a 

corporation, partnership, or association licensed 

pursuant to section 843(a), and the shipping, 

transporting, possession, or receipt of explosive 

materials is in furtherance of such power; 

(C) Is a member of a North Atlantic Treaty 

Organization (NATO) or other friendly foreign 

military force, as determined by the Attorney 

General in consultation with the Secretary of 

Defense, who is present in the United States under 

military orders for training or other military 

purpose authorized by the United States and the 

shipping, transporting, possession, or receipt of 

explosive materials in furtherance of the authorized 

military purpose; or 

(D) Is lawfully present in the United States with 

the Director of Intelligence, and the shipment, 

transportation, receipt, or possession of the 

explosive materials is in furtherance of such 

cooperation;* * *’’

11The penalty for violation of 18 U.S.C. 842(i) is 

up to ten years imprisonment and a fine of up to 

$250,000.

receipt of a notification under subsection 

(c)(1)(B), that the individual does not pose a 

security risk warranting denial of the 

license.7

Section 5103a(a)(2) subjects license 

renewals to the same requirements. 

Section 5103a(c) requires the Attorney 

General, upon the request of a State in 

connection with issuance of an HME, to 

carry out a background records check of 

the individual applying for the 

endorsement and, upon completing the 

check, to notify the Secretary (as 

delegated to the Assistant Secretary) of 

the results. The Secretary then 

determines whether the individual 

poses a security risk warranting denial 

of the endorsement. The security threat 

assessment must consist of: (1) A check 

of the relevant criminal history 

databases; (2) in the case of an alien, a 

check of the relevant databases to 

determine the status of the alien under 

U.S. immigration laws; and (3) as 

appropriate, a check of the relevant 

international databases through 

Interpol-U.S. National Central Bureau or 

other appropriate means. 

III. Safe Explosives Act 

Congress enacted the Safe Explosives 

Act (SEA) on November 25, 2002.8

Sections 1121–23 of the SEA amended 

section 842(i) of title 18, United States 

Code, by adding several categories to the 

list of persons who may not lawfully 

‘‘ship or transport any explosive in or 

affecting interstate or foreign 

commerce’’ or ‘‘receive or possess any 

explosive which has been shipped or 

transported in or affecting interstate or 

foreign commerce.’’ Prior to the 

amendment, 18 U.S.C. 842(i) prohibited 

the transportation of explosives by any 

person under indictment for or 

convicted of a felony, a fugitive from 

justice, an unlawful user or addict of 

any controlled substance, and any 

person who had been adjudicated as 

lacking mental capacity 9 or committed 

to a mental institution. The 2002 

amendment added three new categories 

to the list of prohibited persons: aliens, 

with certain exceptions;10 persons 

dishonorably discharged from the armed 

forces; and former U.S. citizens who 

have renounced their citizenship. 

Individuals who violate 18 U.S.C. 842(i) 

are subject to criminal prosecution.11

These incidents are investigated by the 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives (ATF) of the Department 

of Justice and referred, as appropriate, to 

the United States Attorneys.

However, 18 U.S.C. 845(a)(1) provides 

an exception to section 842(i) for ‘‘any 

aspect of the transportation of explosive 

materials via railroad, water, highway, 

or air which are regulated by the United 

States Department of Transportation and 

agencies thereof, and which pertain to 

safety.’’ Under this exception, if DOT 

regulations address the transportation 

security issues of persons engaged in a 

particular aspect of the safe 

transportation of explosive materials, 

then those persons are not subject to 

prosecution under 18 U.S.C. 842(i) 

while they are engaged in the 

transportation of explosives in 

commerce. TSA issued the May 5 IFR 

and amendments in coordination with 

agencies within DOT, the Federal Motor 

Carrier Safety Administration (FMCSA) 

and Research and Special Programs 

Administration (RSPA), and triggered 

this exception. Therefore, the SEA does 

not apply to commercial drivers with 

HMEs while they are engaged in the 

transportation of explosives in 

commerce.

IV. The Current Rule 

To comply with the mandates of the 

USA PATRIOT Act, and to trigger the 

exception in 18 U.S.C. 845(a)(1) for the 

transportation of explosives, TSA issued 

the May 5 IFR, technical amendments, 

and Final Rule (referred to collectively 

through the remainder of this document 

as the Current Rule). Under the Current 

Rule, TSA determines that an individual 

poses a security threat if he or she: (1) 

Is an alien (unless he or she is a lawful 

permanent resident) or a U.S. citizen 

who has renounced his or her U.S. 

citizenship; (2) is wanted or under 

indictment for certain felonies; (3) has a 

conviction in military or civilian court 

for certain felonies; (4) has been 

adjudicated as lacking mental capacity 

or involuntarily committed to a mental 

institution; or (5) is considered to pose 

a security threat based on a review of 

pertinent databases. 

The Current Rule also establishes 

conditions and procedures under which 

an individual who has been determined 

to pose a security threat can appeal the 

determination. The Current Rule 

provides a waiver process for those 

individuals who otherwise could not 

obtain a hazardous materials 

endorsement (HME) due to a 

disqualifying felony conviction or lack 

of mental capacity. Any holder of an 

HME who has committed a 

disqualifying offense is required to 

surrender the endorsement as of 

September 2, 2003. Finally, the Current 

Rule prohibits an individual from 

holding, and a State from issuing or 

renewing an HME for an individual 

unless the individual meets the TSA 

security threat assessment standards. 

V. Response to Public Comments 

TSA received over 100 comments 

from individual commercial drivers, 

small trucking companies, national and 

international carriers, labor 

organizations, State Departments of 

Motor Vehicles (DMVs), industry 

associations, and associations 

representing State government. The 

discussion below groups the comments 

by the primary issues raised by the 

public. 

A. Shortage of Time and Resources 

The overwhelming majority of the 

comments are from the States and 

concern the need for additional time 

and resources. The States notified TSA 

that State funding, human resources, 

and technology are in short supply. 

Many of the States needed additional 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68723

State legislative authority to conduct the 

program and to collect fees to pay for 

the States’ costs in implementing the 

program. To the fullest extent possible, 

TSA has issued extensions of time for 

the start date of the fingerprint-based 

CHRC to accommodate these requests 

and to provide TSA time to develop the 

fee proposed rule, after TSA obtained 

legislative authority to collect user fees 

to support the security threat 

assessment program. 

Many of the States raised technical 

questions concerning the electronic 

interface that must exist for the States, 

TSA, and the Federal Bureau of 

Investigation (FBI) to receive and 

transmit data. These are daunting issues 

in light of the fact that each State and 

the Federal agencies have unique data 

management systems, with varying 

levels of sophistication. TSA is building 

a new Credentialing Screening Gateway 

System (Screening Gateway) to collect, 

retain, and transmit all of the 

information that must be collected from 

the applicant to conduct a security 

threat assessment. Once this system is 

complete, TSA will be prepared to 

receive all of the data fields required 

when the applicant provides the 

required information for an HME. TSA 

considers the process for collecting 

applicants’ fingerprints for purposes of 

this regulation—working through State 

Departments of Motor Vehicles and 

allowing States either to collect the 

fingerprints themselves or to ask TSA to 

do so—as the best process to implement 

the USA PATRIOT Act’s requirements 

in the near term. DHS is collecting 

fingerprints for other Departmental 

programs and expects to implement 

other programs in the future that will 

involve fingerprint collection. As all of 

these programs evolve, DHS will 

consider whether processes for this 

program, or for several DHS programs, 

can be consolidated to improve 

efficiency while fulfilling security 

needs. If greater efficiencies are 

possible, TSA will consider amending 

this rule, if necessary, to achieve those 

efficiencies. 

TSA is not requiring the States to 

develop new connectivity with the TSA 

Screening Gateway. In States that 

choose to collect fingerprints and 

applicant information rather than use 

TSA for that purpose, the State will be 

responsible for transmitting the 

information to TSA electronically 

through the existing Commercial Drivers 

License Information System (CDLIS), 

and ensuring that the fingerprints are 

forwarded to the FBI in a form and 

manner consistent with FBI and TSA 

standards. TSA will assist in the 

electronic transfer of information in 

States that are in the process of 

upgrading their systems when the rule 

becomes effective. In these States, for a 

short time TSA will accept the 

information in alternate forms, such as 

email or facsimiles; and will format or 

digitize the information into a useable 

format until the States’ computer 

upgrades are complete. TSA believes 

that the ability to exchange information 

electronically will benefit the States, the 

industry, and TSA in the long run and 

so TSA encourages the States to opt for 

this process. If a State knows that it will 

not be able to transmit the information 

electronically until after July 2005, 

however, the State should formally elect 

to have TSA capture the fingerprints 

and driver information. TSA can staff 

the data entry for a short period of time 

until a State’s computer system is 

upgraded, but TSA does not have the 

resources to perform that task beyond 

July 2005.

B. List of Disqualifying Criminal 

Offenses. 

Many individual drivers, trucking 

companies, and the States submitted 

comments on the list of disqualifying 

offenses in the Current Rule. For that 

reason, TSA reevaluated the list in order 

to ensure that it is not over- or underinclusive. As a result, TSA is making 

several changes to the list of 

disqualifying crimes. 

The list of permanently disqualifying 

offenses in the Current Rule includes 

espionage, treason, sedition, a crime 

involving a transportation security 

incident, improper transportation of a 

hazardous material, a terrorist crime, 

arson, unlawful use of an explosive, and 

conspiracy to commit any of these 

crimes. TSA is making four changes to 

the list of permanently disqualifying 

offenses: arson is reclassified as an 

interim rather than a permanent 

disqualifier, violations of the Racketeer 

Influenced Corrupt Organizations Act 

(RICO) are permanently disqualifying if 

an underlying crime is a permanent 

disqualifier (such as a terrorist 

conviction under 18 U.S.C. chapter 

113B); TSA is adding unlawful 

purchase, receipt, transfer, shipping, 

transporting, import, export or storage of 

an explosive to former paragraph 

1572.103(b)(9); and TSA is reclassifying 

murder as a permanently disqualifying 

crime. 

TSA is amending the list of interim 

disqualifying offenses by adding arson 

and unlawful purchase, receipt, transfer, 

shipping, transporting, import, export or 

storage of a firearm, and by reclassifying 

murder and removing simple drug 

possession from the list. Possession 

with intent to distribute remains an 

interim disqualifying offense. 

TSA developed the list of 

disqualifying felony convictions in 

consultation with the Department of 

Justice (DOJ) and DOT, to include those 

offenses that are reasonably indicative 

of an individual’s predisposition to 

engage in violent or deceptive behavior 

that may be predictive of a security 

threat. Some States suggested that all 

criminal convictions should be 

disqualifying. The USA PATRIOT Act 

requires TSA to ‘‘review relevant 

criminal databases’’ and appropriate 

international databases to determine 

whether the applicant poses a security 

threat. Based on the legislative language 

and the need to keep commerce moving, 

TSA believes that disqualification of all 

drivers with a criminal record is not 

necessary. Past history and current 

threat information do not indicate that 

all persons with a criminal conviction 

pose a security threat. We believe that 

the rule lists the criminal offenses that 

indicate an individual’s predisposition 

to engage in violent or deceptive activity 

that may reasonably give rise to a 

security threat. 

TSA is removing simple possession of 

a controlled substance from the list 

based on comments received and our 

own analysis. Simple drug possession 

generally does not involve violence 

against others or reveal a pattern of 

deception, as crimes like smuggling or 

bribery often do. In addition, FMCSA’s 

regulations governing the commercial 

driver’s license program require CDL 

holders to undergo pre-application, 

post-accident, and random alcohol and 

drug testing. 49 CFR part 382. A positive 

drug or alcohol test will result in 

restrictions on the driver’s CDL or 

disqualification. TSA believes that these 

standards act as a strong deterrent 

against alcohol or drug use while 

employed as a CDL driver. To the extent 

that an individual with a simple drug 

possession conviction presents a threat, 

the current CDL testing requirements 

most likely deter dangerous individuals 

with drug use problems from seeking 

employment as a hazmat driver. Based 

on this, and because simple drug 

possession generally does not fall 

within the class of crimes involving 

violence or deception, TSA has 

determined that there should be no 

adverse impact resulting from removing 

conviction for simple possession of a 

controlled substance from the list of 

disqualifying offenses. Conviction for 

possession of drugs with intent to 

distribute remains a disqualifying crime. 

We are reclassifying arson as an 

interim rather than a permanent 

disqualifying offense. In reevaluating 

68724 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

12 49 CFR 384.212.

13 49 CFR 383.5.

14 49 CFR 383.23(b).

the list of most serious crimes—those 

that disqualify an applicant for life—

TSA believes that arson is not always an 

act of terrorism, as the other permanent 

disqualifying crimes typically are. 

Although an arson conviction may be 

indicative of a very dangerous 

individual who should not have control 

of hazardous material shipments, we do 

not believe that it rises to the same level 

of threat as espionage and treason do. It 

remains a disqualifying offense in this 

IFR, and TSA can carefully consider the 

underlying facts if a convicted arsonist 

applies for a waiver to determine 

whether the facts are indicative of an 

individual who presents on ongoing, 

unacceptable risk to security. 

We are reclassifying murder as a 

permanent rather than interim 

disqualifying offense. Murder is one of 

the most violent crimes on the list of 

disqualifiers and indicates a disregard 

for human life. In reevaluating the 

standards, TSA has concluded that the 

crime of murder should be permanently 

disqualifying. 

TSA is adding a RICO offense to the 

list of permanent disqualifiers if the 

underlying or predicate racketeering act 

for the RICO conviction is a 

permanently disqualifying offense. TSA 

understands that RICO convictions are 

often the result of a series or variety of 

criminal acts that may not be listed in 

the criminal history records. However, if 

a defendant is found by the trier of fact, 

or by his own admission in the course 

of a guilty plea, to have committed a 

permanently disqualifying offense as a 

predicate to a RICO conviction, TSA 

will consider the RICO conviction as 

permanently disqualifying. Conversely, 

where a RICO conviction is based on a 

series of robberies, the RICO conviction 

becomes an interim disqualifying 

offense. TSA does not anticipate that 

RICO violations will surface often 

during the security threat assessment 

process, but wishes to ensure that they 

are handled consistently and 

appropriately if they arise.

With respect to a conviction involving 

improper shipment of a hazardous 

material under § 1572.103(a)(6), TSA 

has added the corresponding Federal 

statutory citation to the rule (49 U.S.C. 

5124) to specify the provision of law 

that is disqualifying. TSA has made this 

change in response to comments from 

the Institute of Makers of Explosives 

(IME) and the National Propane Gas 

Association (NPGA), in which they 

expressed concern that a State might 

charge an individual with a state crime 

that involves hazardous materials and 

incorrectly consider it a disqualifying 

offense under the Current Rule. Section 

5124 of title 49, United States Code, 

provides that a person who knowingly 

violates section 5104(b) of the law 

(tampering and marking standards for 

hazardous materials), or other law in 

Chapter 51, Transportation of 

Hazardous Materials, will be fined 

under title 18 of the Code, or 

imprisoned, or both. TSA agrees that 

adding the Federal citation avoids 

confusion or incorrect application of the 

law. This amendment clarifies that 49 

U.S.C. 5124, or a state law that is 

comparable, is disqualifying. 

TSA has also added the phrase ‘‘or 

State law that is comparable’’ to crimes 

that include a specific Federal statutory 

citation to ensure that where a crime is 

committed pursuant to a State statute 

equivalent to these Federal statutes, it is 

clear that a conviction is disqualifying. 

The language has been added to 

paragraphs (a)(4), (a)(6), (a)(8), (a)(10) , 

and (b)(10). 

As part of the discussion on 

disqualifying criminal offenses, it is 

important to outline the waiver program 

in the Current Rule and this IFR. TSA’s 

waiver program provides an avenue for 

drivers with criminal histories to 

present the circumstances of their 

crime, evidence of restitution or other 

sentencing conditions, rehabilitation, 

and letters of reference. TSA has 

received approximately 35 waiver 

requests to date. The rule imposes a 

lifetime ban on persons convicted of the 

most serious security-related offenses 

(such as treason, espionage, and 

sedition); any driver convicted of one of 

these felonies is not eligible for a 

waiver. However, a driver with a 

conviction for other disqualifying 

felonies may apply for a waiver of the 

standard. 

C. Immigration Status 

With respect to certain aliens, TSA is 

amending the standards in this rule in 

response to comments received and 

TSA’s analysis of the industry. The 

Current Rule permits citizens and 

lawful permanent residents to apply for 

a security threat assessment for an HME. 

The FMCSA has statutory authority to 

develop standards for obtaining a CDL. 

The FMCSA regulations require CDL 

holders to be domiciled in the licensing 

State or be issued a nonresident CDL 

under prescribed procedures.12

FMCSA’s domicile requirement 

provides that a CDL holder must have 

a State of Domicile, which is defined as 

‘‘the State where a person has his true, 

fixed, permanent home and principal 

residence, and where he has the 

intention of returning whenever he is 

absent.’’13 FMCSA’s regulations also 

provide for situations in which a CDL 

operator is domiciled in a foreign 

jurisdiction that does not test drivers 

and issue CDLs in accordance with the 

FMCSA standards, and permits those 

individuals to obtain a non-resident 

CDL from a State that does comply with 

the testing and licensing 

requirements.14

The trucking industry includes many 

alien drivers, including lawful 

nonimmigrants, refugees, and asylees. 

There are areas of the country, 

particularly the border States, where the 

concentration of non-citizens is very 

high. TSA has received correspondence 

from drivers in the United States under 

refugee status who understand that they 

cannot hold an HME under the Current 

Rule. In addition, their congressional 

representatives have expressed interest 

in authorizing these aliens to hold an 

HME. Employers have also expressed 

concern that the industry will be 

adversely impacted if all aliens are 

prohibited from holding an HME. This 

concern is particularly acute now 

because the trucking industry has 

informed TSA that the current annual 

employment turnover rate exceeds 80 

percent. Employers report that good 

employees are difficult to find and keep, 

and often non-citizen employees are 

highly motivated to begin a trade in the 

United States once granted lawful 

status. Background checks are 

sometimes completed before an alien is 

granted lawful status or issued evidence 

of such status, but may not occur in 

some cases. However, assuming these 

individuals meet all CDL qualifications 

and apply for an HME, these applicants 

would undergo TSA’s thorough security 

threat assessment.

For the reasons listed above, TSA has 

determined that the security threat 

assessment standards should be 

changed to permit nonimmigrant aliens, 

asylees, and refugees, who are in lawful 

status and possess valid and 

unrestricted documentation establishing 

eligibility for employment to apply for 

an HME and security threat assessment, 

if they are qualified to hold a CDL under 

49 CFR parts 383 and 384. Any 

questions concerning the CDL 

requirements, particularly with respect 

to domicile, are governed by the FMCSA 

regulations and State DMV offices. As 

long as the applicant complies with the 

FMCSA regulations for obtaining a CDL, 

is in the country lawfully, is authorized 

to work in the U.S., successfully 

completes TSA’s security threat 

assessment, and meets all other 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68725

applicable standards, the applicant will 

meet the security threat assessment 

standards for holding an HME. TSA 

believes that if these standards are met, 

a person’s status as an alien alone 

should not disqualify the individual 

from holding an HME. Aliens in lawful 

status are permitted to join the U.S. 

armed services and operate in other 

modes of transportation, such as flying 

aircraft in U.S. airspace, as long as they 

meet all applicable standards. TSA 

believes hazmat drivers should be 

treated similarly.

D. Collection of Fingerprints 

Commenters asked TSA to permit the 

submission of fingerprints once and 

rerun those prints when the driver must 

renew or transfer an HME. They cite the 

cost and time needed to collect new 

fingerprints each time the driver 

undergoes a new security threat 

assessment as justification for recycling 

fingerprints. TSA understands these 

concerns and continues to develop a 

process and system to ensure that 

necessary fingerprint resubmissions are 

minimized. 

E. Preemption 

Several commenters asked for 

clarification or reconsideration of the 

preemptive effect that this rule has on 

State or local law. TSA’s rule provides 

minimum standards for a security threat 

assessment that all 50 States and the 

District of Columbia must meet. If a 

State wishes to take additional action to 

protect its citizens, TSA’s rule does not 

prevent it. 

The State is the licensing body for 

drivers who are State residents and the 

State has a clear mandate and interest in 

protecting the residents and drivers 

within its borders from dangerous 

drivers. Thus, if a State determines that 

additional measures should be applied 

to drivers licensed by the State, and the 

measures are not inconsistent with 

TSA’s rule, TSA does not wish to 

preclude the State from establishing 

them. As long as the State does not 

nullify or controvert the intent of the 

standards in this IFR, TSA’s rule would 

not preempt State action. In deference to 

the State as the licensing body 

responsible for the welfare of its 

citizens, TSA believes that 

complementary State action may be 

appropriate. For instance, if a State adds 

a felony or misdemeanor conviction as 

disqualifying that is not among the list 

of disqualifying offenses in this rule, 

TSA’s rule does not preempt application 

of the State law concerning drivers 

licensed in that State. However, a State 

is preempted from applying a standard 

in which the interim disqualifying 

offenses are no longer treated as 

disqualifying. 

Federal preemption of State driver 

licensing standards is treated differently 

from Federal preemption of State laws 

or regulations governing the 

transportation of hazardous materials in 

commerce. The Federal Hazardous 

Materials Regulations at 49 CFR parts 

171–180 are promulgated under the 

mandate in section 5103(b) of the 

Federal hazardous materials 

transportation law [Federal hazardous 

materials (hazmat) law; 49 U.S.C. 5101 

et seq., as amended by section 1711 of 

the Homeland Security Act of 2002, 

Public Law 107–296] that the Secretary 

of Transportation ‘‘prescribe regulations 

for the safe transportation, including 

security, of hazardous material in 

intrastate, interstate, and foreign 

commerce.’’ One of the primary 

purposes of Federal hazmat law is to 

ensure a nationally uniform set of 

regulations applicable to the 

transportation of hazardous materials in 

commerce. Thus, the preemption 

provisions of Federal hazmat law 

generally preclude non-Federal 

governments from imposing 

requirements applicable to hazardous 

materials transportation if: 

(1) Complying with the non-Federal 

regulation and complying with Federal 

hazmat law, the hazmat safety 

regulations (HMR), a hazardous 

materials transportation security 

regulation, or directive issued by the 

Secretary of Homeland Security is not 

possible (dual compliance test; 49 

U.S.C. 5125(a)(1)); or 

(2) The non-Federal requirement is an 

obstacle to carrying out Federal hazmat 

law, the HMR, or a hazardous materials 

transportation security regulation or 

directive issued by the Secretary of 

Homeland Security (obstacle test; 49 

U.S.C. 5125(a)(2)). 

Further, Federal hazmat law preempts 

a non-Federal requirement applicable to 

any one of several specified covered 

subjects if it is not substantively the 

same as Federal hazmat law, the HMR, 

or a hazardous materials transportation 

security regulation or directive issued 

by the Secretary of Homeland Security 

(covered subjects test; 49 U.S.C. 

5125(b)). 

The HMR are not minimum 

requirements that other jurisdictions 

may exceed if local conditions warrant; 

rather, the HMR are national standards 

and must be uniformly applied across 

jurisdictional lines. However, another 

Federal law may authorize non-Federal 

requirements. 49 U.S.C. 5125(a) and (b). 

Also, RSPA may waive preemption of a 

non-Federal requirement if it: (1) 

Provides the public with at least as 

much protection as requirements of 

Federal hazmat law and the HMR, and 

(2) does not impose an unreasonable 

burden on commerce. 49 U.S.C. 5125(e). 

Most of the questions TSA receives 

concerning preemption involve the 

definition of ‘‘conviction’’ and whether 

the State definition or the definition set 

forth in TSA’s rule applies. TSA’s 

definition applies in the context of 

hazmat drivers, and TSA is amending it 

in this IFR to clarify the difference 

between State and Federal expungement 

standards. The new definition describes 

what actions constitute an expungement 

for purposes of the rule and serve to 

nullify a conviction. By providing the 

new definition, TSA believes that many 

of the questions concerning the 

application of State or Federal 

‘‘conviction’’ standards are now 

addressed. 

Some commenters have asked 

whether the TSA rule precludes a State 

from reviewing State criminal databases, 

in addition to the CJIS criminal records 

that TSA will search. Some States have 

stated that they plan to complete a 

check of the State records and forward 

any pertinent information to TSA with 

the other applicant information for 

consideration in the security threat 

assessment. Moreover, some States are 

required by State law to forward a 

driver’s derogatory criminal history to 

TSA. 

TSA’s rule neither requires a State to 

search nor prevents a State from 

searching its own criminal records. If a 

State has the resources to check State 

criminal history records and forward 

any pertinent information to TSA 

during an applicant’s security threat 

assessment, TSA will use the 

information. The only caveat we must 

apply is the State record must be 

transmitted to TSA contemporaneously 

with the other applicant information 

that the State submits to TSA. 

Considering the volume of information 

that will be exchanged on 2.7 million 

drivers, TSA and the States must make 

every effort to keep an applicant’s 

information consolidated. Also, the 

State must consult with TSA concerning 

an acceptable format it will use to 

transmit the State criminal records to 

make certain TSA staff can easily 

decipher the record. 

F. Privacy Concerns

Several drivers and employers 

commented on TSA’s ability to maintain 

the confidentiality of a driver’s 

identification information. Some drivers 

are skeptical that TSA can protect this 

personal information from use by other 

government agencies, commercial 

organizations, or employers. Employers 

68726 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

15 5 U.S.C. 552a, as amended.

16 69 FR 57349 (September 24, 2004).

17Pub. L. 107–295, November 25, 2002, 116 Stat. 

2064.

18 46 U.S.C. 70105(e).

would like to receive some of the 

information that will be collected for the 

security threat assessment. TSA is 

sensitive to these issues and has 

established safeguards to ensure that all 

information will be handled in 

accordance with the Privacy Act of 

1974.15

TSA employees and contractors are 

bound by law and contract to abide by 

Federal privacy laws to protect personal 

information from unauthorized 

disclosure. There are criminal sanctions 

for individuals who violate these laws. 

TSA has published its Privacy Act 

System of Records 16 for this program, 

detailing the information to be 

collected, how it will be used, and the 

routine uses of that information. TSA’s 

System of Records discussed above 

permits sharing information with 

employers in its routine uses section. 

The personal information will be 

password protected and secured against 

unauthorized access.

As a matter of efficiency, TSA intends 

to maintain as much consistency as 

possible between the current hazmat 

driver and future maritime programs. 

The Maritime Transportation Security 

Act (MTSA)17 requires a security threat 

assessment of workers with unescorted 

access to secure areas of ports, maritime 

vessels, and facilities. MTSA provides 

that any information constituting the 

grounds for denial of a transportation 

worker identification card must be 

maintained confidentially by the 

Secretary; an individual’s employer may 

be informed of whether or not the 

individual has been cleared.18 With 

respect to the hazmat program, any 

notification TSA makes to an employer 

will relay whether the driver’s 

endorsement has been revoked so that 

the employer knows that the driver is 

not authorized to transport hazmat. 

Actual criminal history or other 

dispositive records will not be shared 

with employers. If TSA determines that 

an imminent threat exists and 

additional measures are necessary to 

secure a facility, TSA may provide 

additional information to the employer 

to help prevent a security incident.

It is also important to note that the 

FBI places restrictions on who may have 

access to the raw data obtained during 

a fingerprint-based CHRC. See 28 CFR 

50.12. These restrictions would also 

apply to an employer’s use of certain 

information. 

TSA is considering requiring all 

employers to maintain a list of 

employees who hold HMEs, so that in 

the event that TSA wishes to notify an 

employer that an employee is not 

authorized to transport hazmat, TSA 

will have the information necessary to 

contact the employer. TSA may require 

each employer to maintain this list on 

a secure website that TSA can access 

easily and to update the list 

periodically. TSA has similar 

requirements in place in aviation. For 

instance, each airport must maintain a 

current list of individuals who have 

unescorted access to secure areas of an 

airport, and conduct periodic audits to 

ensure that the list is accurate. 49 CFR 

1542.211. TSA requests comments from 

the industry concerning methods to 

establish such a database that would 

impose the fewest burdens and costs. 

Also, TSA requests comments on 

additional measures that would be 

useful in protecting this information 

from unauthorized access. 

G. Tiered Background Checks 

In one comment, an individual driver 

asked TSA to consider developing a 

tiered security threat assessment, with 

more stringent standards in place for the 

transportation of dangerous goods, such 

as weapon systems, chemical and 

biological warfare materials, and bulk 

fuels. Individuals who haul less 

dangerous products, such as asbestos, 

lithium batteries, food coloring, corn 

syrup, and bleach would undergo a 

security threat assessment, but with a 

shorter list of disqualifying offenses. 

TSA has discussed this principle 

internally for use across all modes of 

transportation. Under this approach, 

individuals with unescorted access to 

highly sensitive information, 

equipment, areas, or products would 

undergo a very intensive background 

check, and those with access to less 

sensitive material would complete a 

check of relevant criminal databases, 

particularly for outstanding wants and 

warrants, immigration status, and 

appropriate terrorist watch lists. 

The difficulty with this approach is 

that it increases the costs, time, and 

resources necessary to track a particular 

shipment through the transportation 

system and make certain that only 

individuals with the appropriate 

background check come in contact with 

the shipment. TSA and DOT faced this 

problem with explosives shipments. 

Manufacturers and shippers were not 

willing to ship explosives in commerce 

because the SEA was originally going to 

be implemented in such a way that no 

felon could transport the explosive. The 

industry understood that it would not 

be possible to know at one end of the 

shipment process who might handle the 

package before it reaches its destination. 

In the scenario the commenter proposes, 

a significant amount of time would have 

to be spent by the industry to ensure 

that a box of explosives entering the 

transportation system in California does 

not travel through the hands of an 

individual who had not completed the 

most stringent security threat 

assessment before it reaches Vermont. 

We note in this regard that the 

Current Rule, as amended by this IFR, 

provides for a tiered security threat 

assessment in that the driver 

background check requirements apply 

to drivers who transport ‘‘placarded’’

amounts of hazardous materials and 

select agents. ‘‘Placarded’’ amounts and 

materials are liquid, gaseous, or solid 

products that DOT has determined to be 

hazardous in transportation and require 

special marking and packaging while 

transported in commerce. (49 CFR part 

172). In the May 5 IFR (68 FR 23832) 

TSA and DOT determined that the most 

significant security risks associated with 

the transportation of hazardous 

materials in commerce involve the 

transportation of certain radioactive 

materials, certain explosives, materials 

that are poisonous by inhalation, certain 

infectious and toxic substances, and 

bulk shipments of materials such as 

flammable and compressed gases, 

flammable liquids, flammable solids, 

and corrosives. This list generally 

correlates to the types and quantities of 

hazardous materials for which 

placarding is required. Using the 

placarding thresholds to trigger 

enhanced security requirements covers 

the materials that present the most 

significant security threats in 

transportation and provides a relatively 

straightforward way to distinguish 

materials that may present a significant 

security threat from materials that do 

not. It also provides consistency for the 

regulated community, thereby 

minimizing confusion and facilitating 

compliance. 

As the security programs 

administered by TSA mature, we intend 

to develop additional refinements to the 

process while maintaining a high level 

of security. 

H. HME Transfers

Several drivers and State agencies 

have requested different standards for 

HME holders who must transfer the 

HME to a new State of residence. They 

cite the difficulty a driver faces if he 

undergoes security threat assessments 

for example, in February 2005 in 

Virginia, and must complete a second 

security threat assessment if he moves 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68727

19 49 U.S.C. 114.

to another State in the following year. 

Based on calls TSA has received, some 

drivers transfer State domicile and 

driver’s licenses frequently. These 

transfers can become very costly for the 

driver or his employer, and impose 

additional work on the State DMVs and 

TSA. Therefore, TSA is amending the 

rule to permit the States and a transfer 

HME applicant to complete one security 

threat assessment for the period of time 

required in the driver’s original State of 

issuance. For example, a driver in State 

A, where the renewal period is every 

four years, who completes a security 

threat assessment in 2005 and then 

moves to State B, will not have to 

complete a second threat assessment 

until the State A assessment expires in 

2009. FMCSA’s regulations require 

renewing the HME at least once every 

five years, so drivers across the country 

have nearly identical renewal periods. 

49 CFR 383.141(d). Thus, there is no 

risk that any driver will go more than 

five years without a security threat 

assessment. 

TSA invites comment from industry 

and the States on this new standard. 

TSA anticipates that the States will have 

to amend internal recordkeeping 

practices to track the HME transfer 

applicants, but we believe based on the 

comments received from the States that 

this is preferable to initiating a new 

security threat assessment each time an 

HME holder transfers to a new State. 

I. Applicability of Waivers to § 1572.107 

Disqualifications 

An organization submitted comments 

asking TSA to reconsider the 

disqualifications from eligibility for a 

waiver under § 1572.107. TSA does not 

permit applicants who are disqualified 

under § 1572.107 to apply for a waiver. 

First, disqualifications under paragraph 

1572.107(a) generally are a result of the 

intelligence-related check and reveal 

that the applicant may have or has 

connections to terrorist activity, leading 

to the determination that the applicant 

poses a security threat. Once an 

applicant is determined to pose a 

security threat due to intelligencerelated information, there can be no 

rational reason to grant him a waiver of 

the standards. Further, disqualifications 

under paragraphs 1572.107(a) or (b) are 

based on individual determinations 

that, based on all of the circumstances, 

the applicant poses a threat. This 

scenario is unlike situations under 

§ 1572.103, in which applicants are 

disqualified based on a certain criminal 

history, but where the circumstances 

surrounding the crime or rehabilitation 

following conviction might warrant 

issuing a waiver. Because individual 

circumstances are taken into account 

under a determination based on 

§ 1572.107, there is no reason for a 

waiver. 

Applicants disqualified under 

§ 1572.107 may appeal TSA’s initial 

determination that the applicant may 

pose a security threat on the grounds 

that TSA’s assessment is inaccurate 

(e.g., due to mistaken identity). If TSA 

is not persuaded that the appeal should 

be granted, there is no opportunity for 

a waiver. TSA is changing this section 

of the rule to heighten the level of 

scrutiny that the applicant’s appeal will 

receive. The rule now requires that the 

Assistant Secretary, rather than the 

Director, review and make a final 

determination of appeals that arise 

under § 1572.107 of the rule.

J. Hazmat Endorsements for Certain 

Farmers 

Some States have asked whether 

individuals engaged in farming, who are 

subject to certain exceptions in the 

FMCSA and RSPA rules, must undergo 

a security threat assessment. Farmers 

are not required to obtain a commercial 

drivers license if they operate their 

vehicles within a 150-mile radius of the 

farm. If they transport materials that 

must be placarded, they must obtain a 

farm hazmat endorsement, which is 

attached to a basic operator Class D 

license. To obtain this endorsement, the 

driver must pass the regular CDL 

hazmat written test and a driving test in 

a representative vehicle. 

These drivers are not required to 

undergo a security threat assessment for 

an HME because they are not required 

to obtain a CDL. The requirements in 

§ 1012 of the USA PATRIOT Act are 

specific to the hazardous materials 

endorsement on a commercial drivers 

license. TSA may determine in the 

future that this population should 

undergo some form of a security threat 

assessment under the provisions of the 

Aviation and Transportation Security 

Act.19 However, TSA is not amending 

this rule to cover this group, because the 

rule applies to the States and holders of 

commercial drivers licenses.

K. Acceptance of Background Checks 

Conducted by Other Agencies 

TSA has received inquiries 

concerning the acceptance of 

background checks completed by other 

public and private entities. They urge 

TSA to recognize these checks as 

comparable to the security threat 

assessment required in this rule to avoid 

duplication of effort and unnecessary 

cost. Consistent with Homeland 

Security Presidential Directive-11 on 

comprehensive terrorist-related 

screening procedures and Homeland 

Security Presidential Directive-12 on 

common identification standards, TSA 

is committed to ‘‘standardizing’’ the 

security threat assessment process to the 

fullest extent possible. TSA will 

continue to work with all appropriate 

Federal agencies to ensure comparable 

background checks and threat 

assessments to avoid duplication of 

effort and minimize costs. TSA also 

recognizes that broader Federal 

Government efforts are underway to 

develop standardized screening for 

multiple programs across the Federal 

Government and the private sector. As 

these procedures are developed and 

implemented government-wide, TSA 

will consult with other Federal agencies 

to provide reciprocity with respect to 

comparable security screening 

programs. 

VI. Summary of This Interim Final Rule 

This document published today 

(referred to throughout the remainder of 

this document as the IFR) restructures 

the Current Rule text for clarity and 

organization. The chart below provides 

the section number in the Current Rule 

and the corresponding new section 

number used in this IFR.

Old section New section 

1572.5(b) ........................... 1572.11 

1572.5(c) ............................ 1572.13(a)–(d) 

1572.5(d)(1) ....................... 1572.5(c) 

1572.5(d)(2) ....................... 1572.5(b) 

1572.5(e) ........................... 1572.9 

1572.5(f) ............................ 1572.103 

1572.5(g) ........................... 1572.15(d)(1) 

1572.9 ................................ 1572.201 

1572.11 .............................. 1572.203 

This IFR changes the Current Rule by 

amending the security threat assessment 

procedures into three distinct phases: 

the fingerprint-based check, the 

intelligence-related check, and the final 

disposition. As the Current Rule 

requires and under this IFR, TSA 

adjudicates the results of the 

fingerprint- and intelligence-related 

checks. As provided in this IFR and the 

Current Rule, after adjudication, TSA 

issues a Determination of No Security 

Threat to the State if the records do not 

disclose disqualifying information. TSA 

issues an Initial Determination of Threat 

Assessment to the applicant if the 

results of the threat assessment reveal a 

disqualifying standard. The applicant 

may file an appeal of the Initial 

Determination with TSA, based on 

assertions that the underlying records 

are incorrect or the records refer to a 

different individual. After completion of 

68728 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

20 Department of Homeland Security 

Appropriations Act, 2004, section 520, Pub. L. 108–

90, October 1, 2003, 117 Stat. 1137.

an appeal, TSA issues a Final 

Disposition based on the results of the 

security threat assessment and appeal. 

Under the Current Rule and this IFR, 

TSA administers a waiver program for 

individuals who do not meet the 

standards for mental competency or 

criminal history, but can show 

rehabilitation to such an extent that they 

are capable of holding an HME. 

In the IFR, TSA is making the 

following changes to the Current Rule: 

• Revise definitions and terms in the 

rule text to describe the security threat 

assessment process 

• Reorganize the rule text so that it is 

easier to follow 

• Amend the immigration standards 

to permit lawful nonimmigrants, 

refugees, and asylees who possess valid 

evidence of unrestricted employment 

authorization who are qualified to hold 

a CDL to apply for a security threat 

assessment for an HME 

• Remove simple possession of a 

controlled substance from the list of 

disqualifying offenses

• Reclassify arson as an interim rather 

than a permanently disqualifying 

offense 

• Add unlawful purchase, receipt, 

transfer, shipping, transporting, import, 

export and storage of a firearm or 

explosive or explosive device to the list 

of disqualifying offenses 

• Reclassify murder as a permanently 

rather than an interim disqualifying 

offense 

• Make RICO convictions 

permanently disqualifying if the 

predicate crimes are permanently 

disqualifying 

• Add the specific statutory citation 

for the offense of improper 

transportation of hazmat 

• Lengthen the suspense dates in the 

appeal and waiver processes 

• Reduce the amount of advance 

notice the States must provide HME 

drivers about the need for a background 

check upon renewal 

• Amend the standards for drivers 

who are transferring their HME to a new 

State so that they do not have to 

undergo a new security threat 

assessment until the time period 

established by the State under which 

the driver’s current security threat 

assessment expires 

• Amend the review process for 

drivers who are disqualified as a result 

of the intelligence-related check to 

provide a final determination by the 

Assistant Secretary rather than the 

Director 

• Remove the requirement that the 

States must forward each driver 

application to TSA 

• Require the States to retain the 

application for one year 

• Prohibit applicants with certain 

conviction from applying for a waiver 

• Delay the date on which States are 

required to begin the security threat 

assessment process for renewals and 

transfers 

• Require electronic submission of 

the applicant information in States that 

elect to do the fingerprint collection 

• Require the States to notify TSA as 

to whether the State elects to collect and 

submit applicant information and 

fingerprints, or whether the State wants 

TSA do the collection 

Each of these changes is discussed in 

detail in the preamble of this IFR. 

VII. Rulemaking To Establish Fees 

Section 1572.13(f) of the IFR provides 

that each State must decide whether it 

wants TSA and its agent to collect 

applicant information, fingerprints, and 

fees, and inform TSA of the decision no 

later than December 27, 2004. 

The USA PATRIOT Act did not grant 

TSA authority to collect fees to cover 

the costs associated with completing 

security threat assessments on hazmat 

drivers. However, on October 1, 2003, 

legislation was enacted requiring TSA to 

collect reasonable fees to cover the costs 

of providing credentialing and 

background investigations in the 

transportation field, including 

implementation of the USA PATRIOT 

Act requirements.20 Section 520 of the 

Homeland Security Appropriations Act 

of 2004 (2004 Appropriations Act) 

requires TSA to collect fees to pay for 

the costs of the following: (1) 

Conducting or obtaining a criminal 

history records check (CHRC); (2) 

reviewing available law enforcement 

databases, commercial databases, and 

records of other governmental and 

international agencies; (3) reviewing 

and adjudicating requests for waivers 

and appeals of TSA decisions; and (4) 

any other costs related to performing the 

background records check or providing 

the credential.

Section 520 requires that any fee 

collected must be available only to pay 

for the costs incurred in providing 

services in connection with performing 

the background check or providing the 

credential. The fee may remain available 

until expended. TSA must establish this 

fee in accordance with the criteria in 31 

U.S.C. 9701 (General User Fee Statute), 

which requires fees to be fair and based 

on (1) costs to the government, (2) the 

value of the service or thing to the 

recipient, (3) public policy or interest 

served, and (4) other relevant facts. To 

the extent possible, TSA intends for 

these fees to be relatively consistent for 

other TSA background check programs. 

In this IFR, TSA is requiring States to 

choose between two fingerprint 

collection options. Each State must 

either: (1) Collect and transmit the 

fingerprints and applicant information 

of individuals who apply for or renew 

an HME; or (2) allow an entity approved 

by TSA (TSA agent) to collect and 

transmit the fingerprints and applicant 

information of such individuals. States 

are required to notify TSA in writing of 

their choice within 30 days after the 

date this IFR is published in the Federal 

Register. If a State does not notify TSA 

in writing of its choice by that date, TSA 

will assume that the State has chosen 

the second option and will work with 

the State to establish a system for a TSA 

agent to collect fingerprints and 

applicant information in the State.

The State will be required to operate 

under the option it chooses until at least 

January 31, 2008, unless otherwise 

approved by TSA. TSA is requiring a 

specific initial time period of three years 

so that TSA and the TSA agent can 

adequately assess the overall cost of 

implementing the program. The 

fingerprint portion of the threat 

assessment will be effectively staggered 

initially as new applicants apply for the 

first time and as existing HME holders 

apply to renew their endorsement. If the 

States could change position on a yearly 

basis, the TSA agent would make its 

initial contract bid based on inaccurate 

cost projections. With a specific time 

period, the TSA agent can estimate with 

more certainty how many applicants 

must be processed, how much 

equipment is needed, where the 

collection centers will be located, and 

the number of employees needed to 

carry out the collection tasks. 

To comply with the mandates of 

Section 520 of the 2004 Appropriations 

Act, the USA PATRIOT Act, and the 

SEA, TSA is issuing a companion notice 

of proposed rulemaking (Fee NPRM) to 

establish user fees for individuals who 

apply to obtain or renew an HME, and 

thus are required to undergo a security 

threat assessment in accordance with 49 

CFR part 1572. In the Fee NPRM, TSA 

proposes to establish two new user fees 

in addition to the FBI fee for performing 

the CHRC on behalf of government 

agencies for non-governmental 

applicants: (1) A fee to cover TSA’s 

costs of performing and adjudicating 

security threat assessments, appeals, 

and waivers (Threat Assessment Fee); 

and (2) a fee to cover the costs of 

collecting and transmitting fingerprints 

and applicant information (Information 

Collection and Transmission Fee). 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68729

Under the Fee NPRM, if a State opts 

to collect fingerprints and applicant 

information itself, the State would be 

required to (1) collect and remit to TSA 

the Threat Assessment Fee in 

accordance with the requirements of the 

Fee NPRM and (2) collect and remit to 

the FBI its user fee to perform a criminal 

history records check. The State then 

would be free to collect a fee under 

State law, such as to cover its costs of 

collecting and transmitting fingerprints 

and applicant information. 

If a State opts to permit a TSA agent 

to collect and transmit fingerprints and 

applicant information, the State would 

not be required to collect and remit to 

TSA any fees under the Fee NPRM. 

Rather, a TSA agent would (1) collect 

and remit to TSA the Threat Assessment 

Fee and FBI fee; and (2) collect the 

Information Collection and 

Transmission Fee (which TSA will use 

to pay the agent for its services). TSA 

will remit to the FBI the appropriate FBI 

fee. 

VIII. Section-by-Section Analysis 

Section 1572.3 Terms Used in This 

Part 

Section 1572.3 adds and revises 

definitions of terms used throughout 

part 1572. The term ‘‘adjudicate’’ is 

added to describe the process by which 

an individual’s security threat 

assessment is analyzed to determine 

whether the individual meets the 

security threat assessment standards. 

When TSA receives the results of the 

fingerprint- and intelligence-related 

checks, TSA analyzes the information 

for criminal history, immigration status, 

mental competency, and connections to 

terrorist activity to determine if the 

applicant should be disqualified under 

the standards described in this rule. The 

process of making this determination is 

the adjudication process. 

‘‘Alien’’ means a person not a citizen 

or national of the United States. This 

definition is consistent with the 

definition of that term provided in the 

USA PATRIOT Act, which defines 

‘‘alien’’ by referring to the definition 

provided in section 101(a)(3) of the 

Immigration and Nationality Act (INA). 

Section 101(a)(3) of the INA defines 

‘‘alien’’ as any person not a citizen or 

national of the United States. 

The Current Rule permits lawful 

permanent residents and U.S. citizens to 

hold an HME after successfully 

completing TSA’s security threat 

assessment. This IFR expands the group 

of potential HME holders to include 

lawful nonimmigrants, refugees, and 

asylees who possess valid, unrestricted 

evidence of employment authorization, 

so long as they meet the threshold 

requirement of being qualified to hold a 

CDL. TSA is making this change in 

response to comments received from the 

States, trucking companies, and 

individual drivers. Many are concerned 

that prohibiting aliens who are in the 

United States working lawfully from 

transporting hazardous materials will 

adversely impact the movement of 

commerce in areas where the 

concentration of non-citizens is high. 

TSA has evaluated the potential risks 

associated with this change and 

determined that it will not adversely 

impact security. Almost all of these 

individuals undergo background and 

security checks before obtaining lawful 

immigration status. Then, they will be 

subject to the full security threat 

assessment TSA conducts, which 

includes a variety of international 

sources, before being authorized to hold 

an HME. TSA has determined that, 

based on these facts and the high level 

of industry interest in permitting certain 

aliens to transport hazardous materials, 

the potential security risks have been 

effectively addressed and these 

individuals should be permitted to 

transport hazmat. This decision is 

discussed in greater detail in TSA’s 

response to comments received.

‘‘Alien registration number’’ means 

the number issued by DHS to an 

individual when he or she becomes a 

lawful permanent resident or attains 

other non-citizen status. We are adding 

‘‘or attains other non-citizen status’’ to 

account for the fact that we are now 

permitting other non-citizens to apply 

for a hazmat endorsement. 

TSA is adding the term ‘‘applicant’’ to 

mean an individual who applies to 

obtain, renew or transfer an HME. 

Regardless of which phase the 

individual is in, the term ‘‘applicant’’

can be used to accurately describe the 

individual for ease of reference. 

We are adding a definition for the 

term ‘‘Assistant Secretary’’ in this IFR, 

because of a slight difference in the IFR 

concerning which TSA official makes 

final determinations of appeals and 

waivers. In this IFR, only the Assistant 

Secretary, TSA’s highest ranking official 

or his or her appointed designee, can 

make a final determination on the 

appeal of a disqualification under 

§ 1572.107. Due to the fact that the 

information used for these checks may 

be classified, and therefore not available 

to the applicant for review, TSA 

believes that it is appropriate to provide 

a high level of scrutiny on these final 

determinations. 

The terms ‘‘commercial driver’s 

license’’ and ‘‘endorsement,’’ are used 

here as defined in the Current Rule and 

in FMCSA’s regulations at 49 CFR 

383.5. We are not making any changes 

to these definitions. 

TSA is changing the definition of 

‘‘convicted’’ in this rule. In the Current 

Rule, convicted means any plea of guilty 

or nolo contendere, or any finding of 

guilt. Under the IFR, TSA will include 

the effect that a reversal, pardon, or 

expungement has on a conviction. Each 

of these actions nullifies the conviction 

for purposes of determining whether an 

applicant meets the security threat 

standards. It is important to note that 

the definition also explains what an 

effective expungement is. For purposes 

of complying with this rule, the 

expungement must remove the criminal 

record from the applicant’s file and 

cannot impose any restrictions or 

disabilities on the applicant. Also, if the 

applicant is permitted to withdraw a 

guilty plea or plea of nolo contendere 

and the case is dismissed, the 

individual is no longer considered to 

have a conviction. TSA believes it is 

necessary to include this level of detail 

in the definition to ensure that 

applicants are treated consistently 

across the country. Procedures on 

expungements vary from state to state, 

and may change at any time. Therefore, 

TSA hopes to avoid inconsistent 

application of the law against hazmat 

drivers by providing the new definition. 

We are making three changes to the 

definition of ‘‘date of service’’ in 

§ 1572.3. In the Current Rule, date of 

service is the date of personal delivery; 

the mailing date shown on a certificate 

of service; the date shown on the 

postmark if there is no certificate of 

service; another mailing date shown by 

other evidence if there is not certificate 

of service or postmark; or the date of an 

e-mail showing when the document was 

sent. We are changing ‘‘e-mail’’ to 

‘‘electronic transmission’’ to reflect 

more accurately the type of information 

exchange that will likely occur among 

the States, TSA, and TSA’s agent. In 

addition, we are replacing ‘‘the date 

shown on the postmark if there is no 

certificate of service’’ with ‘‘10 days 

from the date of mailing, if there is no 

certificate of service.’’ TSA believes that 

this change is more reasonable, 

considering the fact that many drivers 

are away from home for at least a week 

and may not have enough time to 

initiate an appeal without this change. 

Finally, we are changing the language 

for circumstances where a document is 

mailed and there is no certificate of 

service. In these cases, date of service is 

the date on which the document is 

mailed to the mailing address 

designated by the applicant on the 

application. TSA makes this change to 

68730 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

underscore that TSA considers the 

information the applicant puts on the 

application as accurate and will rely on 

it for service of documents. 

The term ‘‘day’’ used in the rule 

means calendar day and is the same 

definition used in the Current Rule. 

‘‘Determination of No Security 

Threat’’ is an administrative 

determination by TSA that an 

individual does not pose a security 

threat that warrants denial of the 

authorization to transport hazardous 

materials. Also, TSA will issue a 

Determination of No Security Threat to 

the State when TSA issues a waiver. 

This term is a replacement for 

‘‘Notification of No Security Threat’’

that is used in the Current Rule, but has 

the same meaning. TSA will use 

‘‘determination’’ in place of 

‘‘notification’’ throughout the 

definitions. 

The term ‘‘Director’’ refers to the 

officer designated by the Assistant 

Secretary to administer the appeal and 

waiver programs described in this part, 

unless the Assistant Secretary is 

specifically designated in the rule to 

administer the appeal or waiver 

program. The Director is authorized to 

name a designee to perform these 

duties, except where the IFR specifically 

designates the Assistant Secretary to 

administer the appeal or waiver 

program. 

TSA is adding a definition of 

explosive or explosive device, which 

includes an explosive or explosive 

material defined in 18 U.S.C. 232(5), 

841(c)–(f), and 844(j), and a destructive 

device defined in 18 U.S.C. 921(a)(4) 

and 26 U.S.C. 5845(f). The addition of 

this definition does not alter the 

substance of the rule in any way; it 

simply provides clarity for individuals 

looking for guidance on the items that 

constitute an explosive. The list is 

illustrative, not exhaustive.

‘‘Final Determination of Threat 

Assessment’’ means a final 

determination by TSA that an 

individual does not meet the standards 

required to hold or obtain a hazardous 

materials endorsement. A Final 

Determination may not be 

administratively appealed. In the 

Current Rule, this action is referred to 

as a Final Notification of Threat 

Assessment. We are changing 

‘‘notification’’ to ‘‘determination’’ to 

reflect more accurately the action being 

taken. 

‘‘Final Disposition’’ is a new term in 

the IFR that describes the actions that 

must be taken when a security threat 

assessment is complete. 

TSA is adding a definition of ‘‘firearm 

or other weapon,’’ which includes 

firearms defined in 18 U.S.C. 921(a)(3) 

or 26 U.S.C. 5845(a) or items contained 

on the U.S. Munitions Import List at 27 

CFR 447.21. The addition of this 

definition does not alter the substance 

of the rule in any way; it simply 

provides clarity for individuals looking 

for guidance on the items that constitute 

an explosive. The list is illustrative, not 

exhaustive. 

A ‘‘hazardous material’’ means any 

material that: (1) In accordance with 

Federal hazardous materials 

transportation law (49 U.S.C. 5101 et 

seq.), has been determined to pose an 

unreasonable risk to health, safety, and 

property when transported in commerce 

and that is required to be placarded 

under subpart F of part 172 of the 

Hazardous Materials Regulations (49 

CFR parts 171–180); or (2) any quantity 

of any material listed as a select agent 

or toxin by Centers for Disease Control 

and Prevention (CDC) in 42 CFR part 73. 

This is the same definition used in 

section 103 of the Hazardous Materials 

Transportation Act and in the Current 

Rule. 

DOT evaluates materials to determine 

whether their respective characteristics, 

properties, and quantities in 

transportation merit special marking, 

storage, and handling procedures. TSA, 

in consultation with DOT, has 

determined that non-placarded 

shipments do not present a sufficient 

security risk in transportation to warrant 

application at this time of the TSA 

background check requirements to 

persons who possess or transport these 

materials, including persons subject to 

18 U.S.C. 842(i). 

‘‘Hazardous materials endorsement 

(HME)’’ is the authorization issued by a 

State Department of Motor Vehicles 

(DMV) to transport hazardous materials 

in commerce. An HME attaches to a 

truck driver’s commercial driver’s 

license (CDL), which is also issued by 

a State DMV. 

‘‘Incarceration’’ means confinement to 

a jail, half-way house, treatment facility, 

or other institution, on a full or parttime basis pursuant to a sentence 

imposed due to a conviction. This 

definition is taken from a statutory 

definition of ‘‘imprisoned’’ in 22 U.S.C. 

2714, which relates to denial of 

passports due to certain drug offense 

convictions. It is the same as the 

definition used in the Current Rule. We 

have used this definition of 

incarceration because it is used in 

similar Federal regulatory programs, 

such as those involving the issuance or 

approval of passports. See 5 CFR 

890.1003; 42 CFR 1001.2. 

TSA is adding a definition for 

‘‘imprisoned or imprisonment,’’ which 

is a new term used in § 1572.107. It 

means confined to a prison, jail, or 

institution for the criminally insane, on 

a full-time basis pursuant to a sentence 

imposed as the result of a criminal 

conviction or finding of not guilty by 

reason of insanity. Time spent confined 

or restricted to a half-way house, 

treatment facility, or similar institution 

pursuant to a sentence imposed as the 

result of a criminal conviction or 

finding of not guilty by reason of 

insanity does not constitute 

imprisonment for purposes of this rule. 

TSA added this term to cover instances 

in which we believe time spent in a 

half-way house or treatment facility 

should not be relevant to determining 

whether a driver poses a security threat. 

‘‘Initial Determination of Threat 

Assessment’’ means an initial 

administrative determination by TSA 

that an individual poses a security 

threat that warrants denial of the 

authorization to transport hazardous 

materials. An Initial Determination may 

be administratively appealed. We are 

changing this term to ‘‘Initial 

Determination’’ from ‘‘Initial 

Notification,’’ to reflect more accurately 

the action being taken. In addition, the 

words ‘‘the authorization for which the 

individual is applying’’ have been 

deleted to make the language clearer. 

‘‘Initial Determination of Threat 

Assessment and Immediate Revocation’’

means an initial administrative 

determination that an individual poses 

a security threat that warrants 

immediate revocation of an HME. Upon 

issuance of this document, the State 

must immediately revoke the hazmat 

endorsement. The driver has an 

opportunity to appeal this 

determination, but the appeal transpires 

after the revocation has occurred. TSA 

will issue this document only where we 

believe the driver may pose an 

imminent threat to transportation, 

national security, or other individuals. 

We are adding this definition to 

distinguish the notification documents 

used in an immediate revocation from 

the more common Initial Determination 

process.

‘‘Lawful permanent resident’’ means 

an individual who has been lawfully 

admitted for permanent residence in the 

United States, as defined in 8 U.S.C. 

1101. In the statute, ‘‘lawfully admitted 

for permanent residence’’ means ‘‘the 

status of having been lawfully accorded 

the privilege of residing permanently in 

the United States as an immigrant in 

accordance with the immigration laws, 

such status not having changed.’’ The 

language in this definition has been 

changed slightly from the Current Rule, 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68731

but substantively, the meaning is the 

same. 

‘‘Mental institution’’ means a mental 

health facility, mental hospital, 

sanitarium, psychiatric facility, and any 

other facility that provides diagnoses by 

licensed professionals of mental 

retardation or mental illness, including 

a psychiatric ward in a general hospital. 

This definition is taken from standards 

concerning individuals with a mental 

disability, which ATF promulgated at 

27 CFR 478.11. This definition is the 

same one used in the Current Rule. We 

are using this ATF definition because 

we are implementing standards 

concerning mental capacity and the 

authorization to transport explosives 

and other hazmat, which ATF 

previously administered before TSA 

published the Current Rule. 

The term ‘‘pilot state’’ is defined here 

as a State that chooses to volunteer to 

begin the complete security threat 

assessment process prior to January 1, 

2005. This definition is used in the 

Current Rule. 

‘‘Revoke’’ means the process by which 

a State cancels, rescinds, withdraws or 

removes a hazardous materials 

endorsement. This definition is revised 

to include all terms a State may have in 

its statute that are equivalent to the term 

‘‘revoke.’’ Several States commented 

that the local statute does not use 

‘‘revoke’’ and asked that we include 

other terms consistent with the State 

statute to ensure that a State does not 

violate its own statute when it revokes 

or rescinds a hazardous materials 

endorsement. TSA’s interest is in the 

cessation of a driver’s right to carry 

hazardous materials, and not to impact 

the driver’s ability to maintain his 

commercial drivers license. 

‘‘State’’ means a State of the United 

States and the District of Columbia. This 

definition is taken from The 

Commercial Motor Vehicle Safety Act of 

1986, 49 U.S.C. 31301(14), which 

created the CDL program. This has not 

changed from the Current Rule. 

‘‘Transportation security incident’’

means a security incident resulting in a 

significant loss of life, environmental 

damage, transportation system 

disruption, or economic disruption in a 

particular area. This definition is taken 

from the Maritime Transportation 

Security Act (MTSA) (46 U.S.C. 70101). 

This definition has the same meaning as 

the definition used in the Current Rule, 

but is now consistent with the actual 

legislative language. TSA used ‘‘severe 

transportation security incident’’ in the 

Current Rule to make clear that the 

incident must result in significant 

damage, disruption, or loss of life to be 

a disqualifying offense in the hazmat 

program. TSA is making the change to 

use the actual legislative language to 

make the IFR consistent with the 

statute. 

‘‘Withdrawal of Initial Determination 

of Threat Assessment’’ is the document 

TSA issues to an applicant when the 

security threat assessment process 

initially indicates that an applicant may 

pose a security threat, but on appeal, 

TSA determines that the person does 

not pose a security threat. For instance, 

mistaken identity or incomplete court 

records may have led to an incorrect 

initial determination.

Section 1572.5 Scope and Standards 

for Hazardous Materials Endorsement 

Security Threat Assessment 

This section describes the individuals 

and entities subject to the requirements 

in Subpart A and the standards those 

individuals must meet. 

Subpart A applies to State agencies 

that are responsible for issuing 

commercial drivers licenses and HMEs, 

and applicants who hold or apply for a 

new, renewal or transfer HME. 

The standards TSA applies to 

determine whether an individual poses 

or is suspected of posing a security 

threat that warrants denial of an HME 

have been established by statute, the 

USA PATRIOT Act and the Safe 

Explosives Act. For the purposes of this 

IFR, an applicant does not pose a 

security threat if he or she (1) does not 

have a disqualifying criminal offense 

described in § 1572.103; (2) meets the 

immigration status requirements 

described in § 1572.105; (3) does not 

pose a security threat as described in 

§ 1572.107; and (4) has not been 

adjudicated as lacking mental capacity 

as described in § 1572.109. This 

paragraph also explains that the security 

threat assessment will be based on the 

individual’s fingerprints, name, and 

other identifying information. 

Section 1572.7 Waivers of Hazardous 

Materials Endorsement Security Threat 

Assessment Standards 

This section describes the individuals 

who may apply to TSA for a waiver. 

Applicants who have been convicted of 

certain criminal offenses and those who 

have been declared mentally 

incompetent in the past may apply for 

a waiver. Individuals convicted of 

treason, sedition, espionage, a crime 

involving a transportation security 

incident, and a crime of terrorism are 

not eligible for a waiver from TSA. This 

is a change from the Current Rule, 

which TSA believes is appropriate given 

the severity and level of risk these 

crimes reflect. Individuals who do not 

meet the immigration standards in 

§ 1572.105 may not apply for a waiver. 

There is no circumstance or set of facts 

under which TSA would wish to 

suspend the application of the lawful 

immigration categories listed in section 

105 to issue a waiver. Additionally, if 

TSA determines that an individual does 

not meet the standards in § 1572.107, 

the applicant is not eligible for a waiver. 

Granting a waiver to an individual 

determined to pose a security threat 

would undermine the purpose of this 

rule and the statutes that gave rise to it. 

Section 1572.9 Applicant Information 

Required for a Security Threat 

Assessment for a Hazardous Materials 

Endorsement 

This section describes all of the 

identifying information an applicant 

must provide in order for TSA to 

complete the fingerprint- and 

intelligence-related checks. The State is 

required to retain the information for 

one year, in either paper or electronic 

form. If the State opts to collect 

fingerprints and the applicant 

information, the State must submit 

applicant information to TSA 

electronically and the fingerprints to the 

FBI. If the State chooses to have TSA do 

the collection, the TSA agent will 

collect and retain the information, 

provide a copy of the application to the 

State, and submit the fingerprints to the 

FBI. We are requiring essentially the 

same information as is required in 

§ 1572.5(e) of the Current Rule, but we 

now add the requirement to provide the 

applicant’s physical identifying 

information, including hair and eye 

color, height and weight. Also, we are 

now requiring the applicant’s mailing 

address, if it differs from the residential 

address, to facilitate delivering all 

notifications to the proper location. 

Finally, we are requesting the name and 

address of the applicant’s current 

employer(s) so that TSA can notify the 

employer if a driver poses a security 

threat and is no longer authorized to 

transport hazmat. 

This section also requires the 

applicant to acknowledge and certify 

that he or she meets the standards 

described in the application and does 

not have any of the disqualifying 

offenses. The applicant’s certification is 

given under penalty of law— any false 

statement or misrepresentation may 

result in criminal prosecution. 

Section 1572.11 Applicant 

Responsibilities for a Security Threat 

Assessment for a Hazardous Materials 

Endorsement 

This section describes the standards 

with which each applicant must comply 

and the actions the applicant must take 

68732 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

21 2004 Department of Homeland Security 

Appropriations Act, Section 520, Pub. L. 108–90, 

October 1, 2003, 117 Stat. 1137.

in order to hold an HME. The 

requirements in this section are found 

in § 1572.5(b) of the Current Rule. As of 

September 2, 2003, current HME 

holders have been required to surrender 

the endorsement if the individual does 

not meet the standards described in the 

Current Rule. Also, applicants have an 

ongoing responsibility to report any 

violation of the standards to TSA and 

surrender the HME within 24 hours of 

the violation. Paragraph (d) of this 

section provides that the applicant may 

submit fingerprints to prove identity or 

disprove an adverse finding following 

the intelligence-related check, and must 

submit fingerprints when applying to 

obtain or renew an HME. With respect 

to transferring an HME when a driver 

changes residences, the driver is not 

required to undergo a security threat 

assessment in the new State until the 

term of years required in the driver’s 

previous State of residence expires.

On October 1, 2003, legislation was 

enacted requiring TSA to collect 

reasonable fees to cover the costs of 

providing credentialing and background 

investigations in the transportation 

field, including implementation of the 

USA PATRIOT Act requirements.21 As a 

result, TSA has initiated a proposed 

rulemaking to determine the reasonable 

fees that are necessary to cover each 

phase of TSA’s security threat 

assessment. Paragraph (d)(3) refers to 

this fee authority and states that the fee 

TSA may charge in order to cover the 

cost of the security threat assessment 

must be paid by the employee or 

employer. It is important to note that 

this does not refer to any fees the States 

may charge to recover their costs, or the 

fees that the FBI has established to 

complete the search.

Section 1572.13 State Responsibilities 

for Issuance of Hazardous Materials 

Endorsement 

This section lists all of the 

responsibilities that the States must 

perform in order to ensure that only 

individuals who meet the security threat 

assessment standards receive a hazmat 

endorsement. These requirements are 

very similar to the requirements in the 

Current Rule. 

Paragraph (a) provides that each State 

must immediately revoke an 

individual’s hazardous materials 

endorsement if TSA informs the State 

that the individual does not meet the 

standards for security threat assessment 

in § 1572.5. This provision is intended 

to address situations in which TSA 

becomes aware of an individual who 

may pose an immediate threat and 

should not be transporting hazardous 

materials. TSA envisions that this 

procedure will not occur frequently, but 

the States must be prepared to revoke an 

HME quickly if such an individual 

comes to TSA’s attention. Any 

individual HME holder who falls into 

this category may appeal this action, as 

described in § 1572.141(i). 

Paragraph (b) provides that as of 

January 31, 2005, for new HMEs and on 

May 31, 2005, for renewal and transfer 

HMEs, no State may issue or renew an 

HME for a CDL unless the State receives 

a Determination of No Security Threat 

from TSA. This IFR provides the later 

date for HME renewals and transfers in 

recognition of the States’ need for 

additional time and resources to 

implement this program. TSA has 

completed a name-based check on all 

current HME holders and reruns this list 

periodically. TSA has disqualified those 

individuals that pose a security threat. 

Therefore, TSA has determined that 

staggering the implementation should 

not adversely impact security. 

In addition, at least 60 days prior to 

the expiration date of the individual’s 

endorsement, the State must notify each 

individual holding a hazardous 

materials endorsement issued by that 

State that he or she will be subject to the 

security threat assessment described in 

this part as part of an application for 

renewal of the endorsement. The notice 

must inform the individual that he or 

she may initiate the security threat 

assessment required by this part at any 

time after receiving the notice, but no 

later than 30 days before the expiration 

date of the individual’s endorsement. If 

the individual does not initiate the 

security threat assessment at least 30 

days before the expiration, their HME 

may expire before the security threat 

assessment is complete. 

The timelines described in paragraph 

(b) have been shortened from the 180/

90-day notification deadlines in the 

Current Rule as a result of comments 

received from the States and TSA’s 

reconsideration of this requirement. 

Initially, TSA established the 180/90-

day notification requirements in order 

to provide HME holders sufficient time 

to seek other employment if they believe 

they may be disqualified. However, now 

that the driver self-reporting 

requirement in § 1572.11 is in effect (as 

of September 2, 2003) those drivers 

must surrender their endorsement and 

may seek a waiver under § 1572.143. 

Representatives of the trucking 

industry have expressed concern that 

shortening this advance notice time 

period from 180 days to 60 may not 

provide drivers enough time to 

complete the security threat assessment 

before the HME expires. If a driver 

begins the assessment 60 days prior to 

expiration of his HME, but receives an 

adverse initial finding, appeals it and 

then applies for a waiver, companies 

fear that drivers will not be available to 

transport hazmat because the HMEs will 

expire prior to completion of the appeal 

and waiver processes. Nothing in the 

rule prohibits the State, employer, or 

driver from beginning the security threat 

assessment more than 60 days prior to 

expiration of the HME. If a State, driver, 

or employer wishes to start the process 

earlier, they may do so. 

In addition, TSA is adding paragraph 

(b)(3), which provides that the States 

may not begin processing renewal and 

transfer applicants prior to March 31, 

2005’60 days before the fingerprint start 

date for renewal and transfer applicants. 

TSA is adding this requirement to 

ensure that TSA and State resources 

will be focused on new applicants as the 

nationwide implementation begins. TSA 

believes this requirement may minimize 

process, paperwork, and computer 

problems that are more likely to occur 

when a program of this size first begins.

Paragraph (c) provides that a State 

may volunteer to begin the security 

threat assessment program prior to 

January 31, 2005, if TSA approves the 

process the State intends to use. These 

Pilot States may not revoke, issue, 

renew or transfer a hazardous materials 

endorsement for a CDL unless the Pilot 

State: (1) collects the information 

required in § 1572.9; (2) collects and 

submits fingerprints in accordance with 

procedures approved by TSA; and (3) 

receives a Determination of No Security 

Threat or Final Determination of Threat 

Assessment from TSA. This provision 

appeared in the Current Rule and is 

intended to address any State that is 

ready to proceed prior to January 2005. 

Paragraph (d) provides that a State 

may extend the expiration date of the 

HME for 90 days if TSA has not 

provided a Final Determination of 

Threat Assessment or Determination of 

No Security Threat before the 

endorsement expires. Any additional 

extensions must be approved in advance 

by TSA. This requirement appears in 

the Current Rule and TSA believes it is 

necessary to ensure that no applicant 

loses his or her HME due to unforeseen 

delays in the TSA or State process. For 

instance, if TSA or a State knows that 

a computer problem has developed that 

will delay a batch of background check 

data, the rule provides a mechanism for 

the State to extend the driver’s HME. 

We are adding the 90-day extension 

limit in the IFR to ensure that an 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68733

applicant’s HME is not extended 

indefinitely. TSA believes this time 

limit should also prevent 

miscommunication between TSA and 

the State. For instance, the State may 

send the appropriate information to 

TSA and assume TSA is conducting the 

security threat assessment, but the 

documents are lost or misidentified and 

the security threat assessment is not 

underway. Also, if TSA issues its 

Determination, but the State does not 

receive it for some reason, the rule 

requires communication between TSA 

and the State to resolve the delay. 

Paragraph (e) requires the State to 

update the driver’s permanent record 

with the results of the security threat 

assessment and the new expiration date 

of the HME; notify CDLIS of the results; 

and revoke or deny the HME within 15 

days after receiving TSA’s 

Determination of No Security Threat or 

Final Determination of Threat 

Assessment. These actions include 

updating the applicant’s record; 

notifying CDLIS of the results of the 

security threat assessment; and revoking 

or denying the HME based on the results 

of the check. The rule requires the 

States to take these actions within 15 

days after receipt of the Final 

Determination of Threat Assessment or 

the Determination of No Security 

Threat. 

The IFR does not require the State to 

‘‘issue’’ an HME within 15 days when 

the applicant successfully completes the 

security threat assessment, as the 

Current Rule did. TSA received 

comments from many States and their 

Association concerning the extreme 

hardship this restriction would place on 

the current licensing systems. In the 

States’ current CDL and HME issuance 

systems, the renewal periods and 

expiration dates are tied to the driver’s 

date of birth. All of the States would be 

required to make major changes to 

computer systems that contain the CDL 

and HME data if the expiration date 

must be tied to the date of issuance 

rather than date of birth. Technically, 

the State can deliver the HME to the 

driver within 15 days after TSA’s 

notification, but its expiration date 

would run from the driver’s birth date, 

not the date of issuance, as required in 

the Current Rule. TSA has concluded 

that the expense and disruption these 

substantive changes would cause 

outweigh any advantage gained by 

having the expiration dates stem from 

the date of issuance rather than a 

driver’s date of birth. TSA will monitor 

this process and take additional 

regulatory action if needed. 

New paragraph (f) provides that each 

State must notify TSA in writing as to 

whether the State wishes to have TSA 

collect and submit applicant 

information and fingerprints, or whether 

the State plans to undertake this 

responsibility. TSA must have each 

State declaration on or before December 

27, 2004 and the declaration will remain 

in place until January 31, 2008, unless 

otherwise authorized by TSA. 

Throughout this rulemaking proceeding, 

approximately half of the States have 

indicated the desire to collect applicant 

fingerprints and information, and have 

the equipment, personnel, and funds to 

do so. Therefore, TSA is offering this 

choice to accommodate those State 

interests. For all other States, TSA, 

through an agent, will complete these 

tasks using TSA resources and the user 

fee collected for this purpose. The 

States’ written declaration must be sent 

to the Hazmat Program Manager, TSA 

Credentialing Office, 601 S. 12th St., 

Arlington, VA 22202. 

For TSA to prepare adequately to 

oversee and administer the fingerprint 

collection process, and so that any TSA 

agent can accurately assess costs, TSA 

must know how many States will 

complete these collections and how 

many will opt for TSA to perform these 

responsibilities. To develop accurate 

cost estimates necessary to determine 

the user fee TSA will charge to the 

applicant or employer, TSA and its 

agent must assess start-up and 

operational costs over a period of time. 

Therefore, the selection each State 

makes will remain in place until 

January 31, 2008 unless otherwise 

authorized by TSA. TSA believes that a 

shorter time period is not adequate to 

assess implementation costs on how 

many collection sites are needed, how 

much equipment and personnel will be 

necessary, the time it will take to collect 

prints in the large versus small States, 

and other operational issues. Finally, if 

TSA does not receive a written 

declaration from a State, TSA and its 

agent will assume responsibility for the 

collection and submission process for 

that State.

It is also important to note that if the 

State elects to collect applicant 

fingerprints and information, the State 

will gather the information that is 

required by the rule when the driver 

appears to provide fingerprints and 

initiate the process. The State must then 

forward the information to TSA 

electronically through CDLIS, the 

fingerprints to the FBI, and the 

corresponding fees to TSA and the FBI. 

As stated above, TSA is willing to assist 

with the electronic transmission of the 

information for a short period of time to 

give States enough time to upgrade their 

computer systems to perform electronic 

transfers routinely. TSA can devote 

resources to entering the data manually 

for a few months as long as the State is 

in the process of upgrading their system. 

If the State cannot complete the upgrade 

by July 2005, then the State should elect 

to have TSA capture fingerprints and 

information. 

If TSA’s agent collects applicant 

information and fingerprints, TSA will 

require the TSA agent to collect and 

remit to TSA the FBI’s fee and TSA’s 

threat assessment fee, in a form and 

manner approved by TSA. Also, the FBI 

will bill TSA on a monthly basis for the 

fingerprints submitted by TSA through 

TSA’s agent and processed by the FBI. 

This process is discussed in the fee 

NPRM as well. 

Depending on how many States elect 

to have TSA complete the fingerprint 

collection program and where they are 

located, drivers licensed in States that 

opt to have TSA collect fingerprints may 

be able to submit their fingerprints at 

any location where TSA has established 

a collection facility. For instance, if a 

driver in State A is working outside 

State A when it is time to submit 

fingerprints and information and State 

A elected to have TSA collect 

fingerprints, the driver may submit 

fingerprints at a TSA collection site that 

is much closer to where he is working 

at the time. In States that opt to do the 

collection, drivers will most likely have 

to submit the required information at a 

State collection point. 

As discussed earlier in this document, 

TSA is conducting a parallel proposed 

rulemaking to address the amount of the 

fee that TSA intends to charge for the 

security threat assessment. TSA 

encourages all interested parties to 

follow and participate in that 

proceeding to assist TSA in developing 

reasonable, accurate fees. 

TSA is adding a new paragraph (g) to 

this section in response to comments 

received from State DMVs and 

individual drivers concerning HME 

transfers. Pursuant to the FMCSA rules, 

drivers who change their State of 

residence must register with the new 

State of residence within 30 days and 

apply for a transfer HME. 49 CFR 

383.71(b). Drivers and the DMV offices 

questioned whether a new security 

threat assessment is necessary each time 

a driver moves to another State, 

regardless of when the previous threat 

assessment occurred. TSA agrees that 

requiring a new threat assessment each 

time a driver moves is burdensome and 

unnecessary. Therefore, the rule now 

permits a transferring HME holder to 

forego a new security threat assessment 

in the new State of residence until the 

68734 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

renewal period established in the 

preceding issuing State expires. 

Paragraph (h) provides that each State 

must retain all applicant information 

collected for the security threat 

assessment for at least one year. TSA 

believes this requirement is necessary to 

ensure that the information is available 

if questions or appeals arise in the 

course of the security threat assessment. 

The States, as licensing bodies, 

currently keep some of this information 

now as part of the commercial drivers 

license and HME program. The State 

may keep this information in paper or 

electronic form. 

Section 1572.15 Procedures for 

Security Threat Assessment 

This section describes the security 

threat assessment process in detail, and 

provides that no State can issue an HME 

unless the steps outlined in this section 

have been completed. The process 

includes the fingerprint-based check, an 

intelligence-related check, and a final 

disposition. 

The fingerprint-based check covers an 

individual’s criminal history to 

determine whether the applicant has 

been convicted of or incarcerated for a 

disqualifying felony under Federal, 

State, or local law. In addition, TSA can 

review databases related to an 

applicant’s dishonorable discharge from 

the armed service, if any, during this 

phase of the security threat assessment, 

which may indicate whether the 

applicant has a disqualifying military 

conviction. This check requires 

collecting fingerprints and applicant 

information, and submitting the prints 

to the FBI and the information to TSA. 

The intelligence-related check 

involves the use of an applicant’s 

biographical and identification 

information that is collected during the 

HME application process. This check 

searches for potential terrorist activity, 

immigration status, and mental 

incompetency. In many cases, only 

certain Federal agencies are authorized 

to access the pertinent databases to 

complete these checks, and some of 

these databases may be classified. 

Once TSA has received the results of 

the fingerprint- and intelligence-related 

checks, TSA reviews them to determine 

if the individual meets the security 

threat assessment standards. If the 

applicant meets the standards, TSA will 

notify the State with a Determination of 

No Security Threat for the applicant. 

Once the State receives this 

Determination, it issues or renews the 

HME. 

If TSA determines that an applicant 

does not meet the standards for holding 

an HME, TSA issues an Initial 

Determination of Threat Assessment to 

the applicant. The Initial Determination 

includes the basis for the determination; 

instructions on how the individual may 

appeal the finding; and a statement that 

if the applicant does not appeal the 

finding, the Initial Determination 

becomes a Final Determination of 

Threat Assessment, which cannot be 

appealed. If the applicant does not 

appeal the finding, TSA notifies the 

issuing State, and the State cannot issue, 

renew, or transfer the applicant’s HME. 

If an applicant appeals the Initial 

Determination, but the appeal does not 

overturn the Initial Determination, TSA 

notifies the State and applicant with a 

Final Determination of Threat 

Assessment. However, if TSA 

determines that the Initial 

Determination was inaccurate (due to 

incomplete court records, for instance) 

and grants the appeal, TSA issues a 

Withdrawal of the Initial Determination 

of Threat Assessment to the applicant 

and a Determination of No Security 

Threat to the State.

This IFR now includes details of the 

process involved when an immediate 

revocation occurs. The State must 

immediately revoke an HME when so 

notified by TSA. TSA will issue an 

Initial Determination of Threat 

Assessment and Immediate Revocation 

when TSA’s security threat assessment 

indicates that a driver may pose an 

imminent threat to national or 

transportation security. This issuance 

may also occur when an individual has 

a disqualifying offense, but has not 

surrendered his endorsement, as 

required by the rule. Under this 

procedure, the individual’s HME is 

revoked immediately and he may appeal 

the revocation afterward. Also, if TSA 

does not receive an appeal of an Initial 

Determination of Threat Assessment 

and Immediate Revocation within the 

prescribed time periods, the Initial 

Determination becomes final. If TSA 

grants the appeal, TSA will issue a 

Withdrawal of the Initial Determination 

to the applicant and Determination of 

No Security Threat to the State. 

It is important to note that TSA may 

begin the final disposition phase of the 

threat assessment process after receiving 

adverse information from the 

fingerprint- or intelligence-related 

portion of the check, even if both checks 

are not complete. For instance, if TSA 

obtains the results of an intelligencerelated check before the fingerprintbased check, and the information 

identifies the applicant as a terrorist, 

TSA may issue its Initial and Final 

Determinations before the fingerprint 

check is complete. There is no reason to 

wait for all information to become 

available if the information in hand is 

disqualifying. We do not anticipate that 

this scenario will occur often. 

An applicant may appeal an adverse 

finding due to the fingerprint- or the 

intelligence-related checks. This process 

will often be a ‘‘correction of records’’

because the basis of the appeal is that 

the records on which TSA relied are not 

accurate or involve a different 

individual. In the case of an appeal of 

the intelligence-related check, the data 

or documents that gave rise to the 

adverse finding may be classified or 

otherwise protected by law, in which 

case TSA cannot release the document 

or information. However, TSA will 

make every effort to provide as much 

information to the applicant as the law 

permits to facilitate a meaningful 

appeal. 

Certain applicants disqualified from 

holding an HME may request a waiver 

of the standards. Individuals who 

commit certain disqualifying offenses or 

have a history of mental incapacity are 

eligible to apply for a waiver. 

Individuals identified as posing a threat 

under § 1572.107 or do not fall within 

the lawful immigration categories listed 

in the IFR are not eligible for a waiver. 

TSA uses the term ‘‘serves’’ in the 

rule text for the process by which TSA 

will notify the States and applicants of 

the security threat assessment 

determinations. The definition of ‘‘date 

of service’’ in § 1572.3 includes the date 

of personal delivery; the mailing date 

shown on a certificate of service; 10 

days from the date of mailing if there is 

no certificate of service; another mailing 

date shown by other evidence if there is 

no certificate of service or postmark; or 

the date on which an electronic 

transmission is sent. 

TSA and the States have discussed 

the benefits of communicating this sort 

of information electronically, and so 

‘‘serve’’ may include uploading the 

notifications to the State on a secure 

website. This method of communication 

would save time, paper, and money, and 

furthers the e-government movement. 

However, there may be instances in 

which a State would prefer to receive a 

determination in hard copy, and so TSA 

invites comment from the States on this 

issue. 

TSA has some concern about the 

potential difficulty in providing notice 

to a driver who may be on the road for 

weeks at a time. The information 

required in § 1572.9 requests the 

applicant’s mailing address if it differs 

from the residential address. Drivers 

should be careful when completing the 

application to provide the address that 

is best for appropriate notice from the 

State and TSA. We have amended the 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68735

definition of ‘‘date of service’’ to 

underscore that TSA will use the 

address given on the application for 

service of documents. We invite 

comment on this issue from drivers and 

their associations as to how this concern 

can be minimized. 

Once the fingerprint- and intelligencerelated checks are complete, paragraph 

(d) explains the actions TSA will take to 

conclude the assessment. 

Section 1572.103 Disqualifying 

Criminal Offenses 

Congress did not specify in the USA 

PATRIOT Act the criminal offenses that 

TSA must use to determine whether a 

person poses a security risk warranting 

denial of an HME. TSA considered the 

crimes listed in 49 U.S.C. 44936, which 

include misdemeanors and felonies, for 

individuals who have unescorted access 

to secured areas of airports or aircraft, 

security screeners, and other aviation 

personnel. 

However, TSA included only felonies, 

and felonies that constitute the most 

serious crimes as disqualifying. The list 

includes crimes that demonstrate an 

individual’s willingness to commit 

violent acts against others for personal 

reasons, such as murder or assault with 

intent to murder. The list also includes 

the crime of smuggling contraband. TSA 

is concerned with the possibility that 

such an individual could be involved 

intentionally, or may be used 

unwittingly by others with malicious 

intent, in transporting items that could 

be used to commit terrorist acts. The 

listed offenses are considered grounds 

for disqualification whether they are 

prosecuted by civilian or military 

authorities. If an applicant has a 

disqualifying criminal offense, but 

believes that under the particular 

circumstances of the offense the 

applicant should not be determined to 

pose a security threat, the applicant may 

request a waiver under § 1572.143. 

This IFR makes changes to the 

Current Rule’s list of crimes that 

disqualify an applicant for life from 

holding an HME. The Current Rule lists 

espionage, sedition, treason, arson, 

crimes involving a transportation 

security incident, improper 

transportation of a hazardous material 

under 49 U.S.C. 5124, any crime listed 

in 18 U.S.C. chapter 113B—Terrorism, 

and conspiracy or attempt to commit the 

crimes in paragraph 1572.103(a) as 

permanently disqualifying. TSA is 

reclassifying arson as an interim rather 

than permanent disqualifying offense. 

As discussed in greater detail above, 

TSA has concluded that an arson 

conviction does not typically present 

the same level of threat as a conviction 

for treason or espionage and is more 

analogous to the interim disqualifying 

offenses. Also, the IFR now makes a 

RICO conviction based on an underlying 

permanent disqualifying offense a 

permanently disqualifying offense. The 

Current Rule lists as permanently 

disqualifying the ‘‘unlawful possession, 

use, sale, distribution, or manufacture of 

an explosive.’’ We now add ‘‘purchase, 

receipt, transfer, shipping, transporting, 

delivery, import, export of, or dealing in 

an explosive or explosive device’’ to this 

list, because these additional actions 

regarding explosives are equally serious. 

TSA is reclassifying murder as a 

permanent rather than interim 

disqualifying offense. We believe it is 

more analogous to the other 

permanently disqualifying offenses in 

terms of the security threat it presents.

Under the Current Rule, individuals 

who have been convicted within the 

preceding seven years of, or 

incarcerated within the preceding five 

years for a criminal offense listed in 

§ 1572.103(b), are disqualified until the 

seven- or five-year time period ends, 

whichever is later. In the Current Rule, 

the offenses in paragraph 1572.103(b) 

are murder; assault with intent to 

murder; kidnapping or hostage taking; 

rape or aggravated sexual abuse; 

unlawful possession, use, sale, 

purchase, distribution, or manufacture 

of a firearm or other weapon; extortion; 

dishonesty, fraud, or misrepresentation, 

including identity fraud; bribery; 

smuggling; immigration violations; 

violations of the Racketeer Influenced 

and Corrupt Organizations Act; 18 

U.S.C. 1961, et seq.; robbery; and 

distribution of, intent to distribute, or 

importation of a controlled substance. 

This IFR amends the list of interim 

disqualifying offenses in several ways. 

The Current Rule lists as disqualifying 

the ‘‘unlawful possession, use, sale, 

distribution, or manufacture of a firearm 

or other weapon.’’ We now add 

‘‘purchase, receipt, transfer, shipping, 

transporting, delivery, import, export of, 

or dealing in a firearm or other weapon’’

to this list, because these additional 

actions regarding a weapon are equally 

serious. Second, we are removing 

‘‘simple possession’’ of a controlled 

substance as disqualifying and making 

clear that ‘‘possession with intent to 

distribute a controlled substance’’

remains a disqualifying offense. TSA 

makes this change to ensure that only 

the most serious offenses, including 

those demonstrating a willingness to 

endanger others, are considered 

disqualifying. TSA is reclassifying arson 

as an interim rather than permanent 

disqualifying offense, as it is in the 

Current Rule. Finally, TSA is 

reclassifying murder as a permanently 

rather than interim disqualifying 

offense. 

We note, as discussed when this rule 

first was adopted, that this rule cannot 

possibly list all of the offenses or other 

information that may be relevant to 

determining whether an individual 

poses a security threat that merits denial 

of a hazardous materials endorsement. 

Therefore, under § 1572.107, TSA may 

consider other criminal offenses and 

information not listed in § 1572.103, if 

they indicate the individual poses a 

security threat. TSA believes these 

changes in § 1572.107 clarify the extent 

of TSA’s discretion. See 68 FR 23852 at 

23861 col. 2–3. 

TSA invites comment from all 

interested parties concerning this list of 

disqualifying criminal offenses. TSA 

must balance its responsibility to 

enhance the security of hazardous 

materials transportation against the 

knowledge that individuals who 

participate in criminal acts may 

subsequently become valuable members 

of the workforce. TSA wishes to 

minimize the adverse impact this 

program may have on individuals who 

have committed criminal offenses and 

served their sentences, without 

compromising the security of hazardous 

materials in transportation. Therefore, 

with limited exceptions, only 

convictions within the seven years prior 

to the date of the application to apply 

or renew a hazardous materials 

endorsement, or incarcerations that 

ended within five years prior to the date 

of application, will disqualify an 

individual. This approach is consistent 

with the requirements of MTSA. 

Paragraph (c) states that an applicant 

who is under a want or warrant for any 

of the disqualifying offenses is 

disqualified until the want or warrant is 

released. TSA will adjudicate these 

cases and notify appropriate law 

enforcement agencies and the State. 

TSA will review the want and warrant 

records carefully to determine the 

nature of the charge, and if it does not 

involve a disqualifying offense, but is 

indicative of a serious criminal act, TSA 

may notify law enforcement pursuant to 

§ 1572.107, discussed below. 

Paragraph (d) describes how an arrest 

with no indication of a conviction, plea, 

sentence or other information indicative 

of a final disposition must be handled. 

The individual must provide TSA with 

written proof that the arrest did not 

result in a disqualifying criminal offense 

within 45 days after the date TSA 

notifies the individual. If TSA does not 

receive such proof in 45 days, TSA will 

notify the applicant and the State that 

68736 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

22 49 CFR 384.212.

23 61 FR 47095, September 6, 1996.

24 Id.

25 Id.

the applicant is disqualified from 

holding an HME. 

Section 1572.105 Immigration Status 

The USA PATRIOT Act and SEA 

require a check of the relevant databases 

to determine the applicant’s status 

under U.S. immigration laws prior to 

authorizing the applicant to transport 

hazmat. In addition, longstanding rules 

concerning the qualifications needed to 

hold a CDL provide that the driver must 

have a State of domicile in the United 

States or hold a nonresident CDL.22 The 

Current Rule requires applicants for an 

HME security threat assessment to be 

U.S. citizens or lawful permanent 

residents. As discussed in greater detail 

above, in this IFR, TSA expands the 

group eligible to apply for an HME 

security threat assessment to include 

individuals who are qualified to hold a 

CDL, but who are not U.S. citizens or 

lawful permanent residents. This group 

includes nonimmigrant aliens, asylees, 

and refugees, who are in lawful status 

and possess valid and unrestricted 

documentation establishing eligibility 

for employment. These changes are 

reflected in paragraph (a) of this section. 

TSA is making one additional change to 

paragraph (a)(1) of this section by 

adding that an applicant must be a 

citizen who has not renounced ‘‘or lost’’

his or her citizenship. TSA is adding 

this language to cover instances in 

which a citizen is stripped of U.S. 

citizenship, as is the case with Nazi war 

criminals. It is unlikely that this 

situation will arise in the context of 

hazmat drivers, but TSA wishes to make 

certain that the rule covers instances in 

which it does occur.

To determine an individual’s 

immigration status, TSA checks the 

relevant immigration databases, and 

may perform other checks, including 

verifying the applicant’s identity and 

Social Security Number. 

Section 1572.107 Other Analyses 

Section 1012 of the USA PATRIOT 

Act requires background checks of 

relevant international databases, such as 

Interpol-U.S. National Central Bureau, 

or other appropriate sources. TSA 

checks these databases and other 

databases that include information on 

terrorists and terrorist activity, violent 

gangs, fugitives from justice, and 

international criminal records. TSA may 

also check databases that assist in 

confirming an individual’s identity. 

This IFR provides that TSA will check 

the following databases, and conduct a 

security threat analysis, before 

determining whether an individual 

poses a security threat: (1) Interpol and 

other international databases as 

appropriate; (2) terrorist watchlists and 

related databases; and (3) other 

databases relevant to determining 

whether an individual may pose or 

poses a security threat or that confirm 

an individual’s identity. 

New paragraph (c) also states that 

TSA may determine that an individual 

poses a security threat if the search TSA 

conducts under part 1572 reveals an 

extensive or very serious domestic or 

foreign criminal history, conviction for 

serious crimes not listed in § 1572.103, 

or an extensive period of imprisonment, 

foreign or domestic, exceeding 365 

consecutive days. TSA is adding this 

language to the rule text to clarify the 

full application of this section and to 

provide sufficient notice to the public 

that there may be cases in which an 

applicant’s criminal record includes 

convictions for serious crimes that are 

not specifically listed in § 1572.103, but 

may be disqualifying. Also, if an 

applicant has been imprisoned for more 

than a year, which is generally 

indicative of a serious offense or a long 

history of criminal activity, TSA may 

determine that the applicant poses an 

unacceptable security threat. We use the 

term ‘‘imprisoned’’ in the new language, 

which is indicative of a more serious 

criminal sentence; time sentenced to a 

half-way house or treatment facility is 

not used to calculate the period of 

‘‘imprisonment,’’ as it is with respect to 

‘‘incarceration.’’

As TSA noted in the May 5 IFR, we 

cannot possibly list all of the offenses or 

other information that may be relevant 

to determining whether an individual 

poses a security threat that warrants 

denial of a hazardous materials 

endorsement. The preamble of the May 

5 IFR stated that, under § 1572.107, TSA 

may consider other criminal offenses 

and information not listed in 

§ 1572.103, if they indicate the 

individual poses a security threat. See 

68 FR 23852 at 23861. The rule text for 

§ 1572.107 clearly states this authority. 

TSA believes we must have a level of 

discretion to carry out the intent of the 

USA PATRIOT Act and responsibly 

assess threats to transportation and the 

Nation, where the intelligence and 

threats are so dynamic. TSA 

understands that the flexibility this 

language provides must be used 

cautiously and on the basis of 

compelling information that can 

withstand judicial review. TSA invites 

comment on this section. 

Section 1572.109 Mental Capacity 

The explosives laws prohibit 

individuals who have been adjudicated 

as lacking mental capacity (‘‘mental 

defect’’ is used in the statutory 

language, but we use ‘‘lacking mental 

capacity’’ in the IFR because it is less 

pejorative, but has and is intended to 

have the same meaning) from 

transporting explosives. This IFR will 

implement this requirement by 

providing that any person who has been 

determined to lack mental capacity does 

not meet the standards for a security 

threat assessment. This section adopts 

the terms and standards concerning 

individuals with mental disabilities 

promulgated by ATF:

The legislative history of the GCA [Gun 

Control Act of 1968] makes it clear that a 

formal adjudication or commitment by a 

court, board, commission or similar legal 

authority is necessary before firearms 

disabilities are incurred. H.R. Rep. 1956, 90th 

Cong., 2d Sess. 30 (1968). The plain language 

of the statute makes it clear that a formal 

commitment, for any reason, e.g., drug use, 

gives rise to firearms disabilities. However, 

the mere presence of a person in a mental 

institution for observation or a voluntary 

commitment to a mental hospital does not 

result in firearms disabilities.23

ATF also cited several cases in which 

courts held that the GCA was designed 

to prohibit the receipt and possession of 

firearms by individuals who are 

potentially dangerous, including 

individuals who are mentally 

incompetent or afflicted with a mental 

illness, and individuals found not guilty 

by reason of insanity in a criminal 

case.24 Finally, ATF added to the 

definition of ‘‘adjudicated as mental 

defective’’ an element from the 

Department of Veterans Affairs 

definition of ‘‘mental incompetent’’ an 

individual who because of injury or 

disease lacks the mental capacity to 

contract or manage his or her own 

affairs.25

An individual lacks mental capacity, 

for purposes of this IFR, if he or she has 

been committed to a mental institution 

or has been adjudicated as lacking 

mental capacity. An individual is 

adjudicated as lacking mental capacity 

if a court or other appropriate authority 

determines that the individual is a 

danger to himself or herself, or lacks the 

mental capacity to manage his or her 

affairs. An individual is ‘‘committed to 

an institution’’ if formally committed by 

a court; this term does not refer to 

voluntary admissions to a mental 

institution or hospital. This standard is 

in the Current Rule and the IFR. 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68737

26See E.O. 12958, 60 FR 19825, April 20, 1995.

27See E.O. 12968, sec. 3.2(a), 6.2(a)(1), 60 FR 

40245, Aug. 7, 1995.

28See 5 U.S.C. 552(b)(1).

29See 49 U.S.C. 114(s); 49 CFR part 1520 as 

amended by 69 FR 28066 (May 18, 2004).

Section 1572.111–1572.139 [Reserved] 

Section 1572.141 Appeal Procedures 

An individual may appeal an Initial 

Determination of Security Threat if he 

asserts that he meets all standards for 

the security threat assessment. For 

example, if the Initial Determination 

was based on information indicating 

that the applicant is an alien who is not 

in the United States lawfully, the 

applicant may provide TSA with 

evidence that the immigration record is 

inaccurate in an appeal. 

An applicant initiates an appeal by 

providing TSA with a written request 

for the releasable materials upon which 

the Initial Determination was based, or 

by serving TSA with his or her written 

reply to the Initial Determination. If an 

applicant wishes to receive copies of the 

releasable material upon which the 

Initial Determination was based, he 

must serve TSA with a written request 

within 30 days after the date of service 

of the Initial Determination. TSA’s 

response is due within 30 days. In 

response, TSA cannot provide any 

classified information, as defined in 

Executive Order (E.O.) 12968, or any 

other information or material protected 

from disclosure by law. 

If an applicant wishes to reply to the 

Initial Determination, he or she must 

provide TSA with a written reply no 

later than 30 days after the date of 

service of the Initial Determination or 

the date of service of TSA’s response to 

the applicant’s request for materials. 

The applicant should explain why he or 

she is appealing the Initial 

Determination and provide evidence 

that the Initial Determination was 

incorrect. In an applicant’s reply, TSA 

will consider only material that is 

relevant to whether he or she meets the 

standards for the security threat 

assessment. If an applicant does not 

dispute or reply to the Initial 

Determination, the Initial Determination 

becomes a Final Determination. 

Under paragraph (c)(3) of this section, 

an applicant has the opportunity to 

correct a record on which an adverse 

decision is based. So long as the record 

is not classified or protected by law 

from release, TSA will notify the 

applicant of the adverse information 

and provide a copy of the record. If the 

applicant wishes to correct the 

inaccurate information, he or she must 

provide written proof that the record is 

inaccurate. The applicant should 

contact the jurisdiction responsible for 

the inaccurate information to complete 

or correct the information contained in 

the record. The applicant must provide 

TSA with the revised record or a 

certified true copy of the information 

from the appropriate entity before TSA 

can reach a determination that the 

applicant does not pose a security threat 

that warrants denial of the HME. 

The Director will make the Final 

Determination on appeals that involve 

disqualifying criminal offenses, mental 

capacity, and immigration status. 

However, in a case where an Initial 

Determination of Threat Assessment is 

based on the applicant’s connection to 

terrorist activity or similar threat under 

§ 1572.107, the Assistant Secretary will 

review the appeal and make the Final 

Determination. This procedure is a 

change from the Current Rule that TSA 

believes is necessary to provide 

additional scrutiny for cases that will 

likely involve a review of classified 

information that the applicant is not 

permitted to see under law. In addition, 

the applicant in these cases is not 

eligible for a waiver of the standards if 

the Initial Determination stands. TSA 

believes that the review by the Assistant 

Secretary for these cases provides an 

additional protection that the agency’s 

Final Determination is sound. 

In considering an appeal, the Director 

or Assistant Secretary will review the 

Initial Determination, the materials 

upon which the Initial Determination is 

based, the applicant’s reply and any 

accompanying information, and any 

other materials or information available 

to TSA. The Director or Assistant 

Secretary may affirm the Initial 

Determination by concluding that an 

individual poses a security threat. In 

this case, TSA serves a Final 

Determination of Threat Assessment on 

the applicant. The Final Determination 

includes a statement that the Director or 

Assistant Secretary has reviewed the 

Initial Determination, the materials 

upon which the Initial Determination 

was based, the reply, if any, and any 

other materials or information available 

to the Director or Assistant Secretary 

and has determined that the applicant 

poses a security threat. There is no 

administrative appeal of the Final 

Determination of Threat Assessment. 

However, as explained below, an 

applicant may apply for a waiver under 

certain circumstances. For purposes of 

judicial review, the Final Determination 

of Threat Assessment constitutes a final 

TSA order.

Paragraph (e) sets forth the procedures 

to follow if TSA determines that the 

applicant does not pose a security 

threat. TSA serves a Withdrawal of the 

Initial Determination on the applicant 

and a Determination of No Security 

Threat on the issuing State. 

If TSA did not serve the individual 

with an Initial Determination of Threat 

Assessment, or grants a waiver, the 

agency will transmit a Determination of 

No Security Threat to the applicant and 

the State in which the applicant applied 

for the HME. 

Paragraph (f) provides that TSA 

cannot disclose classified information, 

as defined in E.O. 12968 section 1.1(d), 

to the applicant, and TSA reserves the 

right not to disclose any other 

information or material not warranting 

disclosure or protected from disclosure 

under law, such as Sensitive Security 

Information (SSI); sensitive law 

enforcement and intelligence 

information; sources, methods, means, 

and application of intelligence 

techniques; and identities of 

confidential informants, undercover 

operatives, and material witnesses. 

For determinations under § 1572.107, 

the finding that an individual poses a 

security threat will be based, in large 

part, on classified national security 

information, unclassified information 

designated as SSI, or other information 

that is protected from disclosure by law. 

Classified national security 

information is information that the 

President or another authorized Federal 

official has determined, pursuant to E.O. 

12968, must be protected against 

unauthorized disclosure to safeguard 

the security of American citizens, the 

country’s democratic institutions, and 

America’s participation within the 

community of nations.26 Executive 

Order 12968 prohibits Federal 

employees from disclosing classified 

information to individuals who have not 

been cleared to have access to such 

information under the requirements of 

that Executive Order.27 If the Director 

determines that an applicant who is 

appealing the intelligence-related check 

is requesting classified materials, the 

applicant will not be able to access 

classified national security information, 

and TSA has no authority to release this 

information to the applicant.

The denial of access to classified 

information under these circumstances 

is consistent with the treatment of 

classified information under the 

Freedom of Information Act (FOIA), 

which specifically exempts such 

information from the general 

requirement under FOIA that all 

government documents are subject to 

public disclosure.28

SSI is unclassified information that is 

subject to disclosure limitations under 

statute and TSA regulations.29 Under 49 

68738 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

30See 49 CFR 1520.11 as added by 69 FR 28084–

5.

31See 49 CFR 1520.5

32See 5 U.S.C. 552(b)(7)(D), (E).

U.S.C. 114(s), the Assistant Secretary of 

TSA may designate categories of 

information as SSI if release of the 

information would be detrimental to the 

security of transportation. Information 

that is designated as SSI must only be 

disclosed to people with a need to 

know, such as those needing to carry 

out regulatory security duties.30

The Assistant Secretary has defined 

information concerning threats against 

transportation as SSI by regulation.31

Thus, information that TSA obtains 

indicating that an applicant poses a 

security threat, including the source of 

such information and the methods 

through which the information was 

obtained, will commonly be designated 

SSI or classified information. The 

purpose of designating this information 

as SSI is to ensure that those who seek 

to do harm to the transportation system 

and their associates do not obtain access 

to information that will enable them to 

evade the government’s efforts to detect 

and prevent their activities. Disclosure 

of this information, especially to an 

applicant specifically suspected of 

posing a threat to the transportation 

system, is precisely the type of harm 

that Congress sought to avoid by 

authorizing the Assistant Secretary to 

define and protect SSI.

Other pieces of information also are 

protected from disclosure by law due to 

their sensitivity in law enforcement and 

intelligence. In some instances, the 

release of information about a particular 

individual or his or her supporters or 

associates could have a substantial 

adverse impact on security matters. The 

release by TSA of the identities or other 

information regarding individuals 

related to a security threat 

determination could jeopardize sources 

and methods of the intelligence 

community, the identities of 

confidential sources, and techniques 

and procedures for law enforcement 

investigations or prosecution.32 Release 

of such information also could have a 

substantial adverse impact on ongoing 

investigations being conducted by 

Federal law enforcement agencies, by 

revealing the course and progress of an 

investigation. In certain instances, 

release of information could alert coconspirators to the extent of the Federal 

investigation and the imminence of 

their own detection, thus provoking 

flight.

For the reasons discussed above, TSA 

will not provide any classified 

information to an applicant, and TSA 

reserves the right to withhold SSI or 

other sensitive material protected from 

disclosure under law. As noted above, 

TSA expects that information will be 

withheld only for determinations based 

on § 1572.107, which involve databases 

that list indicators of potential terrorist 

activity or threats. When the 

determination is based on the 

individual’s criminal records, TSA 

expects that appropriate supporting 

records most likely can be disclosed to 

the applicant upon a written request to 

TSA. With respect to disqualifications 

based on immigration status, TSA will 

provide the driver with the reason for a 

denial, but may not be able to provide 

specific documentation on the 

applicant’s alien status. 

Under this IFR, TSA has the 

discretion to extend due dates both for 

an applicant and for the agency during 

the appeal process. An applicant must 

provide a written statement of good 

cause for extending the due date, within 

a reasonable time prior to the due date 

at issue. TSA has changed this section 

from ‘‘within seven days’’ to a 

‘‘reasonable time’’ to provide the driver 

as much time as he or she reasonably 

needs. This change is also in line with 

the rules of civil procedure. TSA 

anticipates that if an applicant is 

attempting to correct erroneous records 

or gather documents in support of a 

waiver request, the individual may need 

additional time for the appropriate 

governmental agency or entity to 

produce the documents. As long as the 

applicant provides a sufficient 

explanation of these problems, TSA will 

likely extend the time needed to 

complete the process. 

Paragraph (i) of this section describes 

the procedure for appealing an 

immediate revocation of an HME under 

§ 1572.13(a). Immediate revocation will 

occur where TSA determines during the 

course of conducting a security threat 

assessment that sufficient factual and 

legal grounds exist to warrant 

immediate revocation of the HME. 

Under these circumstances, the 

applicant must surrender the 

endorsement and cease transporting 

hazardous materials prior to initiating 

an appeal. TSA understands that 

removing the individual from service 

without an opportunity to correct the 

record may have adverse consequences, 

but this mechanism will be used only in 

cases where the risk of imminent danger 

is significant and the adverse 

information is highly reliable. This 

procedure will also be used where a 

driver should have surrendered the 

endorsement and/or applied for a 

waiver, but failed to do so. The 

individual may appeal this decision, 

must include all supporting 

documentation when he or she submits 

the appeal, and may request releaseable 

documents from TSA. 

Section 1572.143 Waiver Procedures 

This section applies to applicants 

who have been disqualified from 

holding or obtaining an HME due to a 

disqualifying criminal offense or mental 

incompetency. The Current Rule 

provides that an applicant with any 

disqualifying offense or issues of mental 

competence may apply for a waiver. In 

this IFR, TSA prohibits applicants with 

certain criminal convictions from 

applying for a waiver. TSA has 

concluded that crimes of espionage, 

treason, sedition, a terrorist act, or a 

crime involving a transportation 

security incident are so highly 

indicative of a security threat that 

individuals convicted of them pose an 

ongoing, unacceptable risk to 

transportation security. Most likely, 

these individuals will be incarcerated 

for a very long term, but the rule now 

makes clear that convictions for these 

crimes disqualify an individual for life, 

with no opportunity to apply for a 

waiver. Individuals who are disqualified 

due to mental incompetence continue to 

be eligible for a waiver. 

Waivers are offered because an 

applicant may be rehabilitated to the 

point that he or she can be trusted in 

sensitive or potentially dangerous work 

or has been declared mentally 

competent. The Current Rule and this 

IFR provide criteria that TSA considers 

if the individual does not meet the 

criminal history standards. TSA 

believes that these factors are good 

indicators that an individual may be 

rehabilitated to the point that a waiver 

is advisable. The factors are: (1) The 

circumstances of the disqualifying act or 

offense; (2) restitution made by the 

individual; (3) Federal or State 

mitigation remedies; (4) court records 

indicating that the individual has been 

declared mentally competent; and (5) 

other factors TSA believes bear on the 

potential security threat posed by the 

individual. Many of these factors are set 

forth in MTSA, at 46 U.S.C. 70105(c)(2). 

With respect to mental competency, 

TSA will accept a court order or official 

medical declaration showing that an 

individual previously declared 

incompetent is now competent to 

support the waiver request. Generally, 

TSA will not grant waivers on the basis 

of a letter from a treating physician 

stating that the individual is capable of 

maintaining a job, because these 

submissions tend to be very subjective 

and vague. The standard in the rule 

states that an applicant is mentally 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68739

incompetent if a court declares it or he 

or she is involuntarily committed to a 

mental hospital. Official documents that 

reverse these findings are necessary for 

TSA to grant a waiver. TSA requests 

comment on any additional criteria that 

the agency should consider when 

determining whether to grant a waiver.

TSA, however, will not grant waivers 

from the standards concerning 

immigration status or information 

discovered during a search under 

§ 1572.107. With respect to immigration 

violations and findings under 

§ 1572.107, individuals may appeal an 

Initial Determination based on 

assertions that the underlying records 

are incorrect, the applicant’s identity is 

mistaken, or TSA’s analysis of the 

records is not correct. However, if TSA 

finds that the Initial Determination is 

accurate, the individual is ineligible for 

a waiver. 

After reviewing an individual’s 

application for a waiver, TSA sends a 

written decision to the individual and, 

if the waiver is granted, a Determination 

of No Security Threat to the State in 

which the individual applied for the 

HME within 30 days after the date of the 

individual’s waiver application. 

Subpart C—Transportation of 

Explosives From Foreign Locations 

In this IFR, TSA moves the existing 

standards concerning the transportation 

of explosives from Canada to the United 

States via commercial motor vehicle and 

rail to new subpart C. The existing 

standards are not changing 

substantively; they are just being moved 

to a separate Subpart. 

Rulemaking Analyses and Notices 

Justification for Immediate Adoption 

TSA is issuing this interim final rule 

without prior notice and opportunity to 

comment on certain new standards, 

pursuant to authority under section 4(a) 

of the Administrative Procedure Act (5 

U.S.C. 553(b)). This provision allows the 

agency to issue a final rule without 

notice and opportunity to comment 

when the agency for good cause finds 

that notice and comment procedures are 

‘‘impracticable, unnecessary or contrary 

to the public interest.’’

TSA issued the May 5 IFR and request 

for comments that set forth most of the 

standards that are in the document we 

publish today. TSA received comments 

from the States and the trucking 

industry, and to the extent possible, we 

now make changes to the rule to 

accommodate those comments. 

However, certain details of the program 

implementation were not available to 

TSA when the Current Rule was 

published. The full program will 

become operational on January 31, 2005, 

and the States must have this 

information as soon as possible in order 

to implement the program. 

Also, TSA must determine quickly 

how many States will elect to collect 

fingerprints and applicant information 

and how many will opt to have TSA 

complete this work, so that TSA can 

procure a contractor to establish a 

national fingerprinting collection 

system. This document requires the 

States to make this declaration within 

30 days of publication of the rule so that 

TSA can publish a request for proposals 

to implement the program. 

Therefore, TSA believes that issuing a 

proposed rule to address the changes 

and new provisions in the rule is 

contrary to the public interest and 

impracticable. Most of the amendments 

we are making to the Current Rule are 

minor and actually reduce burdens on 

the States. We are issuing this IFR with 

a request for comments and will publish 

a discussion and resolution of all 

comments received, and make any 

needed changes to the rule. 

Regulatory Evaluation 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ (58 FR 51735, 

October 4, 1993), provides for making 

determinations whether a regulatory 

action is ‘‘significant’’ and therefore 

subject to Office of Management and 

Budget (OMB) review and to the 

requirements of the Executive Order. 

TSA has determined that this action 

is a significant regulatory action within 

the meaning of Executive Order 12866 

because there is significant public 

interest in security issues since the 

events of September 11, 2001, and 

approximately 2.7 million commercial 

drivers are subject to the rule. This IFR 

amends existing standards that 

implement section 1012 of the USA 

PATRIOT Act by establishing the 

criteria used in determining whether an 

individual applying for, transferring, or 

renewing an HME poses a security risk 

warranting denial of the endorsement. 

OMB has reviewed this rule. 

TSA has prepared a detailed analysis 

of the costs and benefits of the hazmat 

security threat assessment program, 

which has been placed in the docket. A 

summary of that analysis is set forth 

below. 

Costs 

The IFR results in a cost impact for 

TSA, States, and individuals applying 

for, transferring, or renewing an HME. 

TSA will incur costs for conducting 

security threat assessments and for 

bringing on line the systems, personnel, 

and resources to conduct the security 

threat assessments. The major costrelated areas for the States are applicant 

information and fingerprint collection, 

processing, and transmission. Hazmat 

driver applicants will incur opportunity 

costs in complying with the 

requirements of the IFR.

Individuals applying for, transferring, 

or renewing an HME will incur 

opportunity costs in complying with the 

requirements of the IFR. These 

applicants will also have cash 

expenditures, or out-of-pocket costs, 

that would be approximately equal to 

the total of: (1) Fingerprint associated 

costs, (2) fees established to cover 

information and fingerprint collection 

and transmission, and (3) the fee 

established to cover the cost of security 

threat assessments. Because the 

aforementioned costs have been 

estimated separately in this analysis, no 

separate estimate was made for out-ofpocket Hazmat driver applicant costs. 

Rather, to avoid double counting these 

costs, TSA assumed that out-of-pocket 

Hazmat driver applicant expenses are 

accounted for in the separate estimates 

of fingerprinting and associated costs, 

information and fingerprint collection 

and transmission costs, and TSA 

security threat assessment costs. 

For this cost analysis, three scenarios 

were considered: (1) All States choose to 

collect applicant information and 

fingerprints, (2) 50 percent of the States 

choose to collect information and 

fingerprints, and (3) all States choose to 

allow a TSA agent to collect information 

and fingerprints. TSA estimated the 

total ten-year undiscounted cost at 

$534.1 million under scenario 1, $532.3 

million under scenario 2, and $530.5 

million under scenario 3. 

Table 1 summarizes the ten-year 

discounted and undiscounted costs of 

the IFR. Separate estimates of costs are 

shown for States and TSA (Federal 

government costs). Table 1 also shows 

discounted and undiscounted 

opportunity costs to Hazmat drivers 

based on the time that they must spend 

providing information and fingerprints.

68740 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

TABLE 1.—OVERALL SUMMARY OF TEN-YEAR COSTS UNDER THREE SCENARIOS

[millions] 

All States collect

applicant information 

50% of States collect

applicant information 

All States choose

TSA agent 

Undiscounted

costs 

Present

value 

Undiscounted

costs 

Present

value 

Undiscounted

costs 

Present

value 

Population (renewals, transfers, new applicants) ............................................... 4.1 ........................ 4.1 ........................ 4.1 ........................

Federal (TSA) Costs: 

Start Up (non-recur) ........................ $4.8 $4.8 $4.8 $4.8 $4.8 $4.8 

Recurring Costs ............................... 130.6 98.2 130.6 98.2 130.6 98.2 

FP and Associated Cost .................. 0.0 0.0 116.1 87.3 232.2 174.5 

Total States (2004–2013) ......... 135.4 103.0 251.5 190.3 367.6 277.5

States Cost: 

Start Up (non-recur) ........................ 3.6 3.6 1.8 1.8 NA NA 

FP and Associated Cost .................. 232.2 174.5 116.1 87.3 NA NA 

Recordkeeping ................................. 6.4 4.8 6.4 4.8 6.4 4.8 

Total States (2004–2013) ......... 242.2 182.9 124.3 93.9 6.4 4.8 

Opportunity Costs: 

Lost Time ......................................... 156.5 117.6 156.5 117.6 156.5 117.6 

Total Cost Impact ..................... 534.1 403.5 532.3 406.5 530.5 399.9 

Benefits 

The primary benefit of the rule will be 

increased protection of property and 

citizens in the U.S. from acts of 

terrorism. Part of TSA’s mission is to 

ensure the security of hazardous 

materials in transportation so that these 

materials are not used in an act of 

terrorism. The changes envisioned in 

this interim final rule are an integral 

part of the total program needed by the 

transportation industry to prevent such 

acts of terrorism.

When quantifying benefits for which 

there are no exact parallels, similar 

magnitude events can demonstrate the 

ranges of possible magnitudes for either 

costs or benefits. Two terrorist attacks 

on U.S. soil provide examples of the 

harm that can occur from explosive 

material delivered in a van or light 

truck: The 1993 New York World Trade 

Center (WTC) bombing and the 1995 

Oklahoma City Federal Building 

bombing. The 1993 WTC bombing killed 

six people, injured over 1,000, and 

resulted in over $510 million in insured 

losses. The Oklahoma City (OKC) 

bombing killed 168 people, injured 601, 

and resulted in over $125 million in 

insured losses. Total losses for these 

incidents were estimated at $685 

million. 

The intent of the IFR is to limit access 

to hazardous material by persons 

viewed as a security threat. The rule is 

designed to decrease the probability of 

terrorist incidents related to Hazmat 

misuse. Although the 1993 WTC and 

1995 OKC bombings were not executed 

by Hazmat drivers, these examples show 

the potential damage that can occur 

using a van or light truck. If larger 

vehicles were used to carry out a 

terrorist attack, the damage could be far 

greater. 

The IFR would establish a level of 

security that would reduce the 

likelihood of such an event occurring. 

The prevention of just one terrorist 

attack similar to the examples above 

over the next 10 years would offset the 

cost of this rule, and supports the rule 

as cost-beneficial. In addition, there are 

other benefits associated with ripple 

effects of incidents of this magnitude. 

This type of multiplier effect is 

important in determining benefits. 

Initial Regulatory Flexibility 

Determination 

The Regulatory Flexibility Act of 

1980, as amended, (RFA) was enacted 

by Congress to ensure that small entities 

(small businesses, small not-for-profit 

organizations, and small governmental 

jurisdictions) are not unnecessarily or 

disproportionately burdened by Federal 

regulations. The RFA requires agencies 

to review rules to determine if they have 

‘‘a significant economic impact on a 

substantial number of small entities.’’

TSA has determined that this interim 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Under the RFA, the term ‘‘small 

entity’’ has the same meaning as the 

terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ This action will affect 

States, and States are governmental 

jurisdictions. However, States are not 

considered ‘‘small governmental 

jurisdictions’’ under the RFA. As 

defined by the RFA, small governmental 

jurisdictions include governments of 

cities, counties, towns, townships, 

villages, school districts, or special 

districts with a population of less than 

50 thousand. 

The action would also affect 

individuals, but current industry 

practice is for individual drivers to 

obtain their CDL certification as a 

condition of employment. Individuals 

are required to have a current CDL with 

appropriate endorsements to be eligible 

for employment. This cost is an 

employment cost typically borne by the 

individual employee, but individuals 

are not considered small entities for 

purposes of the RFA. However, 

individuals who are independent truck 

drivers and owner-operators would be 

subject to the RFA. For these 

individuals, the IFR would impose costs 

for information collection and fees 

associated with background checks (a 

total of $57 per individual). 

TSA estimates that the total cost for 

these individuals would be 

approximately $100 per individual once 

the TSA security threat assessment fee 

is established and opportunity costs are 

considered. These costs will be spread 

over a period of five years (incurred 

only during the 5-year renewal process). 

TSA does not consider these costs to be 

significant when compared to the total 

cost of maintaining and operating a 

truck and considering that they are 

spread over a 5-year period (incurred 

only during the 5-year renewal process). 

Therefore, the burden on small business 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68741

entities from this rule is expected to be 

de minimis. 

TSA has conducted the required 

review of this rule pursuant to the RFA, 

5 U.S.C. 605(b) and has determined that 

it will not have a significant impact on 

a substantial number of small entities. 

Accordingly, TSA certifies that this rule 

will not have a significant impact on a 

substantial number of small entities. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

a Federal agency must obtain approval 

from the Office of Management and 

Budget (OMB) for each collection of 

information it conducts, sponsors, or 

requires through regulations. This IFR 

contains information collection 

activities subject to the PRA. 

Accordingly, the following information 

requirements have been submitted to 

OMB for its review. 

Title: Security Threat Assessment for 

Individuals Applying for a Hazardous 

Materials Endorsement for a 

Commercial Driver’s License.

Summary: TSA is amending standards 

for security threat assessments of 

individuals applying for, renewing, or 

transferring a hazardous materials 

endorsement (HME) for a commercial 

driver’s license (CDL), which in 

addition to the information already 

collected by the States for the purpose 

of HME applications, will now include 

fingerprints, immigration status, mental 

competency, and criminal history 

information. 

Use of: Truck drivers must complete 

an application and provide fingerprints 

to undergo a security threat assessment. 

In States that opt to collect applicant 

information and fingerprints, the States 

and local agencies will most likely 

collect this information when 

individuals apply for, renew, or transfer 

an HME. In States that opt to have TSA 

collect the application and fingerprints, 

the States will continue to have 

responsibility for retaining the 

information that TSA collects. 

Respondents (including number of):

The likely respondents to this 

information requirement are individuals 

applying for, renewing or transferring an 

HME and each of the 50 States and the 

District of Columbia, for a total pool of 

approximately 2.7 million respondents. 

Frequency: Estimates indicate that 

approximately 2.7 million people have 

an HME and this number is expected to 

initially decrease for the first three 

years, then grow by approximately 1.0% 

per year for a ten-year total of 

approximately 2.1 million people 

(210,000 annualized). The number of 

fingerprint applications to be collected 

over a ten-year period is approximately 

4.1 million (407,000 annualized). This 

number includes new applicants, 

transfers, and renewals. States must 

notify each HME holder of the 

requirement to undergo a security threat 

assessment at least 60 days prior to the 

expiration date of the endorsement. 

Annual Burden Estimate: Fingerprint 

costs consist of a processing fee, 

processing time, and material. The 

average collection cost for the 

fingerprint process was estimated at 

approximately $35 per set. TSA 

estimates that it will take an average of 

thirty minutes to complete an FBI 

fingerprint card and forward it to the 

FBI for further processing. Individual 

respondents will also be required to 

complete an application to certify their 

immigration status, mental competency, 

and relevant criminal history. TSA 

estimates this form will take an average 

of thirty minutes to complete. Thus, for 

individuals, the annual estimated 

burden is 407,000 hours at a cost of 

$14.25 million. Added to these 

estimates will be an annual 

recordkeeping burden of 4,800 hours 

plus $500,000 in data retention and 

reporting costs for all 50 states and the 

District of Columbia combined. TSA 

welcomes comment from the public 

concerning these estimates. 

The agency is soliciting comments 

to—

(1) Evaluate whether the information 

requirement is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

must respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology.

Pursuant to the PRA, an agency may 

not conduct or sponsor, and a person is 

not required to respond to, a collection 

of information unless it displays a 

currently valid OMB control number. 

The OMB control number for this 

information collection will be published 

in the Federal Register after OMB 

approves it. 

Executive Order 13132 (Federalism) 

Executive Order 13132 requires TSA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under the 

Executive Order, TSA may construe a 

Federal statute to preempt State law 

only where, among other things, the 

exercise of State authority conflicts with 

the exercise of Federal authority under 

the Federal statute. 

This action has been analyzed in 

accordance with the principles and 

criteria in the Executive Order, and it 

has been determined that this Interim 

Final Rule does have Federalism 

implications or a substantial direct 

effect on the States. Under this rule, the 

States may choose to collect information 

and process fingerprints that will be the 

basis for TSA’s security threat 

assessment. TSA will develop the 

detailed procedures for the program in 

consultation with the States. 

TSA notes that FMCSA has 

communicated with the States on the 

requirements of the USA PATRIOT Act. 

The Assistant Administrator of FMCSA 

wrote to licensing officials in each State 

on October 31, 2001, briefly 

summarizing section 1012 of the USA 

PATRIOT Act, and asking them to 

continue issuing and renewing 

hazardous materials endorsements until 

the regulations implementing section 

1012 were completed. Some States have 

already enacted legislation they 

consider necessary to carry out the 

mandates of section 1012. 

Unfunded Mandates Reform Act 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

requires Federal agencies to prepare a 

written assessment of the costs, benefits, 

and other effects of proposed or final 

rules that include a Federal mandate 

likely to result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector, of 

more than $100 million in any one year 

(adjusted for inflation with base year of 

1995). Before promulgating a rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires agencies to identify and 

consider a reasonable number of 

regulatory alternatives and adopt the 

least costly, most cost-effective, or least 

burdensome alternative that achieves 

the objective of the rule. The provisions 

of section 205 do not apply when they 

are inconsistent with applicable law. 

Moreover, section 205 allows TSA to 

68742 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

adopt an alternative other than the least 

costly, most cost-effective, or least 

burdensome alternative if the agency 

publishes with the final rule an 

explanation as to why that alternative 

was not adopted. 

This action will require a State 

expenditure of less than $5.0 million in 

the first year of the recurring phase, 

regardless of whether it chooses to 

collect applicant information and 

fingerprints or allow a TSA agent to 

collect the required information. The 

ten-year State cost is estimated to range 

between $6.4 million and $242.2 

million undiscounted, depending on the 

option selected by the State. Based on 

this estimate, TSA has determined that 

the action will not result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of more than $100 

million in any one year. 

Trade Impact Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. TSA will continue to 

consult with Mexico and Canada under 

the North American Free Trade 

Agreement to ensure that any adverse 

impacts on trade are minimized. This 

rule applies only to individuals 

applying for a State-issued hazardous 

materials endorsement for a commercial 

drivers license. Thus, TSA has 

determined that this rule will have no 

impact on trade. 

Environmental Analysis 

TSA has reviewed this action for 

purposes of the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321–4347) and has determined that 

this action will not have a significant 

effect on the human environment. In 

accordance with FAA Order 1050.1D, 

appendix 4, paragraph 4(j), this 

rulemaking action qualifies for a 

categorical exclusion. The FAA order 

continues to apply to TSA in 

accordance with the Homeland Security 

Act (Pub. L. 107–296), until DHS 

publishes its NEPA implementing 

regulations.

Energy Impact 

The energy impact of this document 

has been assessed in accordance with 

the Energy Policy and Conservation Act 

(EPCA) Public Law 94–163, as amended 

(42 U.S.C. 6362). We have determined 

that this rulemaking is not a major 

regulatory action under the provisions 

of the EPCA.

List of Subjects in 49 CFR Part 1572 

Commercial drivers license, Criminal 

history records check, Explosives, 

Hazardous materials, Motor carriers, 

Motor vehicle carriers, Security 

measures, Security threat assessment.

The Amendments

■ In consideration of the foregoing, the 

Transportation Security Administration 

amends chapter XII of title 49, Code of 

Federal Regulations, as follows:

SUBCHAPTER D—MARITIME AND LAND 

TRANSPORTATION SECURITY

■ 1. Revise part 1572 to read as follows:

PART 1572—CREDENTIALING AND 

BACKGROUND CHECKS FOR LAND 

TRANSPORTATION SECURITY

Subpart A—Requirements To Undergo 

Security Threat Assessments 

Sec. 

1572.1 Applicability. 

1572.3 Terms used in this part. 

1572.5 Scope and standards for hazardous 

materials endorsement security threat 

assessment. 

1572.7 Waivers of hazardous materials 

endorsement security threat assessment 

standards. 

1572.9 Applicant information required for a 

security threat assessment for a 

hazardous materials endorsement. 

1572.11 Applicant responsibilities for a 

security threat assessment for a 

hazardous materials endorsement. 

1572.13 State responsibilities for issuance 

of hazardous materials endorsement. 

1572.15 Procedures for security threat 

assessment.

Subpart B—Standards, Appeals, and 

Waivers for Security Threat Assessments 

1572.101 Scope. 

1572.103 Disqualifying criminal offenses. 

1572.105 Immigration status. 

1572.107 Other analyses. 

1572.109 Mental capacity. 

1572.111–1572.139 [Reserved] 

1572.141 Appeal procedures. 

1572.143 Waiver procedures.

Subpart C—Transportation of Explosives 

From Foreign Locations 

1572.201 Transportation of explosives from 

Canada to the United States via 

commercial motor vehicle. 

1572.203 Transportation of explosives from 

Canada to the United States via railroad 

carrier.

Authority: 49 U.S.C. 114, 5103a, 40113, 

46105; 18 U.S.C. 842, 845.

Subpart A—Requirements To Undergo 

Security Threat Assessments

§ 1572.1 Applicability. 

This part prescribes regulations for 

credentialing and security threat 

assessments for certain maritime and 

land transportation workers.

§ 1572.3 Terms used in this part. 

For purposes of this part: 

Adjudicate means to make an 

administrative determination of whether 

an applicant meets the standards in this 

part based on the merits of the issues 

raised. 

Alien means any person not a citizen 

or national of the United States. 

Alien registration number means the 

number issued by the United States 

Department of Homeland Security to an 

individual when he or she becomes a 

lawful permanent resident of the United 

States or attains other lawful, noncitizen 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 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68743

the date mailed to the address 

designated as the mailing address on the 

application; 

(4) In the case of mailing with no 

certificate of service or postmark, the 

date mailed to the address designated as 

the mailing address on the application 

shown by other evidence; or 

(5) The date on which an electronic 

transmission occurs. 

Day means calendar day. 

Determination of No Security Threat

means an administrative determination 

by TSA that an individual does not pose 

a security threat warranting denial of a 

hazardous materials endorsement. 

Director means the officer designated 

by the Assistant Secretary to administer 

the appeal and waiver programs 

described in this part, except where the 

Assistant Secretary is specifically 

designated in this part to administer the 

appeal or waiver program. The Director 

may appoint a designee to assume his or 

her duties.

Endorsement is used as defined in 49 

CFR 383.5. 

Explosive or explosive device

includes, but is not limited to, an 

explosive or explosive material as 

defined in 18 U.S.C. 232(5), 841(c) 

through 841(f), and 844(j), and a 

destructive device as defined in 18 

U.S.C. 921(a)(4) and 26 U.S.C. 5845(f). 

Final Determination of Threat 

Assessment means a final 

administrative determination by TSA, 

including the resolution of related 

appeals, that an individual poses a 

security threat warranting denial of a 

hazardous materials endorsement. 

Final Disposition means the actions 

that must be taken following issuance of 

a Determination of No Security Threat, 

a Final Determination of Security 

Threat, or the grant of a waiver to ensure 

that a driver’s record, a driver’s 

endorsement, and the Commercial 

Drivers License Information System 

(CDLIS) accurately reflect the results of 

the fingerprint and intelligence-related 

checks. 

Firearm or other weapon includes, but 

is not limited to, firearms as defined in 

18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a) 

or items contained on the U.S. 

Munitions Import List at 27 CFR 447.21. 

Hazardous material has the same 

meaning as defined in section 103 of the 

Hazardous Materials Transportation 

Act. 

Hazardous materials endorsement 

(HME) means the authorization for an 

individual to transport hazardous 

materials in commerce, which must be 

indicated on the individual’s 

commercial driver’s license. 

Imprisoned or imprisonment means 

confined to a prison, jail, or institution 

for the criminally insane, on a full-time 

basis pursuant to a sentence imposed as 

the result of a criminal conviction or 

finding of not guilty by reason of 

insanity. Time spent confined or 

restricted to a half-way house, treatment 

facility, or similar institution pursuant 

to a sentence imposed as the result of a 

criminal conviction or finding of not 

guilty by reason of insanity does not 

constitute imprisonment for purposes of 

this rule. 

Incarceration means confined or 

otherwise restricted to a jail-type 

institution, half-way house, treatment 

facility, or another institution, on a full 

or part-time basis pursuant to a sentence 

imposed as the result of a criminal 

conviction or finding of not guilty by 

reason of insanity. 

Initial Determination of Threat 

Assessment means an initial 

administrative determination by TSA 

that an individual poses or may pose a 

security threat warranting denial of a 

hazardous materials endorsement. 

Initial Determination of Threat 

Assessment and Immediate Revocation

means an initial administrative 

determination that an individual poses 

a security threat that warrants 

immediate revocation of an HME. Upon 

issuance of this document, the State 

must immediately revoke the hazmat 

endorsement. 

Lawful permanent resident means an 

individual who has been lawfully 

admitted to the United States for 

permanent residence, as defined in 8 

U.S.C. 1101. 

Mental institution means a mental 

health facility, mental hospital, 

sanitarium, psychiatric facility, and any 

other facility that provides diagnoses by 

licensed professionals of mental 

retardation or mental illness, including 

a psychiatric ward in a general hospital. 

Pilot State means a State which 

volunteers to begin the security threat 

assessment process prior to January 31, 

2005. 

Revoke means the process by which a 

State cancels, rescinds, withdraws, or 

removes a hazardous materials 

endorsement. 

State means a State of the United 

States and the District of Columbia. 

Transportation security incident

means a security incident resulting in a 

significant loss of life, environmental 

damage, transportation system 

disruption, or economic disruption in a 

particular area, as defined in 46 U.S.C. 

70101. 

Withdrawal of Initial Determination of 

Threat Assessment is the document that 

TSA issues after issuing an Initial 

Determination of Security Threat, when 

TSA determines that the applicant does 

not pose a security threat warranting 

denial of a hazardous materials 

endorsement.

§ 1572.5 Scope and standards for 

hazardous materials endorsement security 

threat assessment. 

(a) This subpart applies to—

(1) State agencies responsible for 

issuing an HME; and 

(2) Applicants who are qualified to 

hold a commercial driver’s license 

under 49 CFR parts 383 and 384, and 

are applying for a new, renewal, or 

transfer HME. 

(b) In conducting the security threat 

assessment requirements in this part, 

the States and TSA use one or more of 

the following: 

(1) An applicant’s fingerprints. 

(2) An applicant’s name. 

(3) Other identifying information. 

(c) TSA has determined that an 

applicant does not pose a security threat 

warranting denial of an HME if:

(1) The applicant does not have a 

disqualifying criminal offense described 

in § 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.

§ 1572.7 Waivers of hazardous materials 

endorsement security threat assessment 

standards. 

(a) An applicant may apply to TSA for 

a waiver of the standards described in 

§ 1572.5, if the applicant—

68744 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

(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].

§ 1572.9 Applicant information required for 

a security threat assessment for a 

hazardous materials endorsement. 

(a) For TSA to complete a security 

threat assessment, an applicant must 

supply the information required in this 

section when the applicant applies to 

obtain or renew a hazardous materials 

endorsement. When applying to transfer 

a hazardous materials endorsement, 

§ 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.

§ 1572.11 Applicant responsibilities for a 

security threat assessment for a hazardous 

materials endorsement. 

(a) Prohibitions. An applicant does 

not meet the security threat assessment 

standards if he or she: 

(1) Has a disqualifying criminal 

offense identified in § 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.

§ 1572.13 State responsibilities for 

issuance of hazardous materials 

endorsement. 

(a) Each State must immediately 

revoke an individual’s HME if TSA 

informs the State that the individual 

does not meet the standards for security 

threat assessment in § 1572.5 and issues 

an Initial Determination of Threat 

Assessment and Immediate Revocation. 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68745

(b) Beginning January 31, 2005 for 

new issuances, and May 31, 2005 for 

renewal or transfer issuances: 

(1) No State may issue or renew a 

hazardous materials endorsement for a 

CDL unless the State receives a 

Determination of No Security Threat 

from TSA. 

(2) Each State must notify each 

individual holding a hazardous 

materials endorsement issued by that 

State that he or she will be subject to the 

security threat assessment described in 

this part as part of an application for 

renewal of the endorsement, at least 60 

days prior to the expiration date of the 

individual’s endorsement. The notice 

must inform the individual that he or 

she may initiate the security threat 

assessment required by this section at 

any time after receiving the notice, but 

no later than 30 days before the 

expiration date of the individual’s 

endorsement. 

(3) No State may begin processing 

renewal or transfer applicants prior to 

March 31, 2005. 

(c) Prior to January 31, 2005, as 

approved by TSA, a Pilot State may not 

revoke, issue, renew, or transfer a 

hazardous materials endorsement for a 

CDL unless the Pilot State—

(1) Collects the information required 

in § 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.

§ 1572.15 Procedures for security threat 

assessment. 

(a) Contents of security threat 

assessment. The security threat 

assessment TSA completes includes a 

fingerprint-based criminal history 

records check, an intelligence-related 

background check, and a final 

disposition. 

(b) Fingerprint-based check. In order 

to conduct a fingerprint-based criminal 

history records check, the following 

procedures must be completed: 

(1) The State notifies the applicant 

that he or she will be subject to the 

security threat assessment at least 60 

days prior to the expiration of the 

applicant’s HME and that the applicant 

must begin the security threat 

assessment no later than 30 days before 

the date of the expiration of the HME. 

(2) Where the State elects to collect 

fingerprints and applicant information 

under § 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, 

68746 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

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.

Subpart B—Standards, Appeals, and 

Waivers for Security Threat 

Assessments

§ 1572.101 Scope. 

This subpart applies to applicants 

who hold or are applying to renew or 

transfer an HME.

§ 1572.103 Disqualifying criminal offenses. 

(a) Permanent disqualifying criminal 

offenses. An applicant has a permanent 

disqualifying offense if convicted or 

found not guilty by reason of insanity in 

a civilian or military jurisdiction of any 

of the following felonies: 

(1) Espionage. 

(2) Sedition. 

(3) Treason. 

(4) A crime listed in 18 U.S.C. Chapter 

113B—Terrorism, or a State law that is 

comparable. 

(5) A crime involving a transportation 

security incident. 

(6) Improper transportation of a 

hazardous material under 49 U.S.C. 

5124 or a State law that is comparable. 

(7) Unlawful possession, use, sale, 

distribution, manufacture, purchase, 

receipt, transfer, shipping, transporting, 

import, export, storage of, or dealing in 

an explosive or explosive device. 

(8) Murder. 

(9) Conspiracy or attempt to commit 

the crimes in this paragraph (a). 

(10) Violations of the Racketeer 

Influenced and Corrupt Organizations 

Act, 18 U.S.C. 1961, et seq., or a State 

law that is comparable, where one of the 

predicate acts found by a jury or 

admitted by the defendant, consists of 

one of the offenses listed in paragraphs 

(a)(4) or (a)(8) of this section. 

(b) Interim disqualifying criminal 

offenses. The felonies listed in 

paragraphs (b)(1) through (b)(14) of this 

section are disqualifying if either of the 

following factors is true: the applicant 

was convicted or found not guilty by 

reason of insanity of the crime in a 

civilian or military jurisdiction, within 

the 7 years preceding the date of 

application; or the applicant was 

released from incarceration for the 

crime within the 5 years preceding the 

date of application. 

(1) Assault with intent to murder.

(2) Kidnapping or hostage taking. 

(3) Rape or aggravated sexual abuse. 

(4) Unlawful possession, use, sale, 

manufacture, purchase, distribution, 

receipt, transfer, shipping, transporting, 

delivery, import, export of, or dealing in 

a firearm or other weapon. 

(5) Extortion. 

(6) Dishonesty, fraud, or 

misrepresentation, including identity 

fraud. 

(7) Bribery. 

(8) Smuggling. 

(9) Immigration violations. 

(10) Violations of the Racketeer 

Influenced and Corrupt Organizations 

Act, 18 U.S.C. 1961, et seq., or a State 

law that is comparable, other than the 

violations listed in paragraph (a)(10) of 

this section. 

(11) Robbery. 

(12) Distribution of, possession with 

intent to distribute, or importation of a 

controlled substance. 

(13) Arson. 

(14) Conspiracy or attempt to commit 

the crimes in this paragraph (b). 

(c) Under want or warrant. An 

applicant who is wanted or under 

indictment in any civilian or military 

jurisdiction for a felony listed in this 

section is disqualified until the want or 

warrant is released. 

(d) Determination of arrest status. (1) 

When a fingerprint-based check 

discloses an arrest for a disqualifying 

crime listed in this section without 

indicating a disposition, TSA will so 

notify the applicant and provide 

instructions on how the applicant must 

clear the disposition, in accordance 

with paragraph (d)(2) of this section. 

(2) The applicant must provide TSA 

with written proof that the arrest did not 

result in a disqualifying criminal offense 

within 45 days after the service date of 

the notification in paragraph (d)(1) of 

this section. If TSA does not receive 

proof in that time, TSA will notify the 

applicant and the State that the 

applicant is disqualified from holding 

an HME.

§ 1572.105 Immigration status. 

(a) An applicant applying for a 

security threat assessment for an HME 

must be—

(1) A citizen of the United States who 

has not renounced or lost his or her 

United States’ citizenship; or 

(2) A lawful permanent resident of the 

United States, as defined in section 

101(a)(20) of the Immigration and 

Nationality Act (8 U.S.C. 1101); or 

(3) An individual who is—

(i) In lawful nonimmigrant status and 

possesses valid evidence of unrestricted 

employment authorization; or 

(ii) A refugee admitted under 8 U.S.C. 

1157 and possesses valid evidence of 

unrestricted employment authorization; 

or 

(iii) An alien granted asylum under 8 

U.S.C. 1158, and possesses valid 

evidence of unrestricted employment 

authorization. 

(b) To determine an applicant’s 

immigration status, TSA checks relevant 

Federal databases and may perform 

other checks, including verifying the 

validity of the applicant’s social security 

number or alien registration number.

§ 1572.107 Other analyses. 

(a) An applicant poses a security 

threat and is therefore disqualified 

under this section when TSA 

determines or suspects the applicant of 

posing a threat—

(1) To national security; or 

(2) To transportation security; or 

(3) Of terrorism. 

(b) TSA checks the following 

databases and analyzes the resulting 

information before determining that an 

applicant does not pose a security threat 

warranting denial of an HME: 

(1) Interpol and other international 

databases, as appropriate; 

(2) Terrorist watchlists and related 

databases; and 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68747

(3) Any other databases relevant to 

determining whether an applicant poses 

or is suspected of posing a security 

threat, or that confirm an applicant’s 

identity. 

(c) TSA may determine that an 

applicant poses a security threat if the 

search conducted under this part reveals 

extensive foreign or domestic criminal 

convictions; a conviction for a serious 

crime not listed in § 1572.103, or a 

period of foreign or domestic 

imprisonment that exceeds 365 

consecutive days.

§ 1572.109 Mental capacity. 

(a) An applicant has lacking mental 

capacity if he or she has been—

(1) Adjudicated as lacking mental 

capacity; or

(2) Committed to a mental institution. 

(b) An applicant is adjudicated as 

lacking mental capacity if—

(1) A court, board, commission, or 

other lawful authority has determined 

that the applicant, as a result of marked 

subnormal intelligence, mental illness, 

incompetence, condition, or disease, is 

a danger to him- or herself or others, or 

lacks the mental capacity to contract or 

manage his or her own affairs. 

(2) This includes a finding of insanity 

by a court in a criminal case; and a 

finding of incompetence to stand trial or 

a finding of not guilty by reason of lack 

of mental responsibility by any court, or 

pursuant to articles 50a and 76b of the 

Uniform Code of Military Justice (10 

U.S.C. 850a and 876b). 

(c) An applicant is committed to a 

mental institution if he or she is 

formally committed to a mental 

institution by a court, board, 

commission, or other lawful authority, 

including involuntary commitment and 

commitment for lacking mental 

capacity, mental illness, and drug use. 

This does not include a commitment to 

a mental institution for observation or 

voluntary admission to a mental 

institution.

§§ 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.

68748 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

(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.

Subpart C—Transportation of 

Explosives From Foreign Locations

§ 1572.201 Transportation of explosives 

from Canada to the United States via 

commercial motor vehicle. 

(a) Applicability. This section applies 

to carriers that carry explosives from 

Canada to the United States using a 

driver who is not a United States citizen 

or lawful permanent resident alien of 

the United States. 

(b) Terms used in this section. For 

purposes of this section: 

Carrier means any ‘‘motor carrier’’ or 

‘‘motor private carrier’’ as defined in 49 

U.S.C. 13102(12) and (13), respectively. 

Customs Service means the United 

States Customs Service. 

Explosive means a material that has 

been examined by the Associate 

Administrator for Hazardous Materials 

Safety, Research and Special Programs 

Administration, in accordance with 49 

CFR 173.56, and determined to meet the 

definition for a Class 1 material in 49 

CFR 173.50. 

Known carrier means a person that 

has been determined by the 

Governments of Canada and the United 

States to be a legitimate business 

operating in accordance with all 

applicable laws and regulations 

governing the transportation of 

explosives. 

Known driver means a driver of a 

motor vehicle who has been determined 

by the Governments of Canada and the 

United States to present no known 

security concern. 

Known offeror means an offeror that 

has been determined by the 

Governments of Canada and the United 

States to be a legitimate business 

operating in accordance with all 

applicable laws and regulations 

governing the transportation of 

explosives. 

Lawful permanent resident alien

means a lawful permanent resident 

alien of the United States as defined by 

8 U.S.C. 1101(a)(2). 

Offeror means the person offering a 

shipment to the carrier for 

transportation from Canada to the 

United States, and may also be known 

as the ‘‘consignor’’ in Canada. 

(c) Prior approval of carrier, offeror, 

and driver. (1) No carrier may transport 

in commerce any explosive into the 

United States from Canada via motor 

vehicle if the driver of the vehicle is a 

not a United States citizen or lawful 

permanent resident alien unless the 

carrier, offeror, and driver are identified 

on a TSA list as a known carrier, known 

offeror, and known driver, respectively. 

(2) The carrier must ensure that it, its 

offeror, and its driver have been 

determined to be a known carrier, 

known offeror, and known driver, 

respectively. If any has not been so 

determined, the carrier must submit the 

following information to Transport 

Canada: 

(i) The carrier must provide its: 

(A) Official name; 

(B) Business number; 

(C) Any trade names; and 

(D) Address. 

(ii) The following information about 

any offeror of explosives whose 

shipments it will carry: 

(A) Official name; 

(B) Business number; and 

(C) Address. 

(iii) The following information about 

any driver the carrier may use to 

transport explosives into the United 

States from Canada who is neither a 

United States citizen nor lawful 

permanent resident alien of the United 

States: 

(A) Full name; 

(B) Canada Commercial Driver’s 

License number; and 

(C) Both current and most recent prior 

residential addresses. 

(3) Transport Canada will determine 

that the carrier and offeror are 

legitimately doing business in Canada 

and will also determine that the drivers 

are properly licensed and present no 

known problems for purposes of this 

section. Transport Canada will notify 

TSA of these determinations by 

forwarding to TSA lists of known 

carriers, offerors, and drivers and their 

identifying information.

(4) TSA will update and maintain the 

list of known carriers, offerors, and 

drivers and forward the list to the 

Customs Service. 

(5) Once included on the list, the 

carriers, offerors, and drivers need not 

obtain prior approval for future 

transport of explosives under this 

section. 

(d) TSA checks. TSA may periodically 

check the data on the carriers, offerors 

and drivers to confirm their continued 

eligibility and may remove from the list 

any that TSA determines is not known 

or is a threat to security. 

(e) At the border—

(1) Driver who is not a United States 

citizen or lawful permanent resident 

alien. Upon arrival at the border, and 

prior to entry into the United States, the 

driver must provide a valid Canadian 

commercial driver’s license to the 

Customs Service. 

(2) Driver who is a United States 

citizen or lawful permanent resident 

alien. If the Customs Service cannot 

verify that the driver is on the list, and 

if the driver is a United States citizen or 

lawful permanent resident alien, the 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68749

driver may be cleared by the Customs 

Service upon providing: 

(i) A valid United States passport; or 

(ii) One or more other document(s) 

including a form of United States 

Federal or state government-issued 

identification with photograph, 

acceptable to the Customs Service. 

(3) Compliance. If a carrier attempts to 

enter the United States without having 

complied with this section, the Customs 

Service will deny entry of the 

explosives and may take other 

appropriate action.

§ 1572.203 Transportation of explosives 

from Canada to the United States via 

railroad carrier. 

(a) Applicability. This section applies 

to railroad carriers that carry explosives 

from Canada to the United States using 

a train crew member who is not a 

United States citizen or lawful 

permanent resident alien of the United 

States. 

(b) Terms under this section. For 

purposes of this section: 

Customs Service means the United 

States Customs Service. 

Explosive means a material that has 

been examined by the Associate 

Administrator for Hazardous Materials 

Safety, Research and Special Programs 

Administration, in accordance with 49 

CFR 173.56, and determined to meet the 

definition for a Class 1 material in 49 

CFR 173.50. 

Known railroad carrier means a 

person that has been determined by the 

Governments of Canada and the United 

States to be a legitimate business 

operating in accordance with all 

applicable laws and regulations 

governing the transportation of 

explosives. 

Known offeror means an offeror that 

has been determined by the 

Governments of Canada and the United 

States to be a legitimate business 

operating in accordance with all 

applicable laws and regulations 

governing the transportation of 

explosives. 

Known train crew member means an 

individual used to transport explosives 

from Canada to the United States who 

has been determined by the 

Governments of Canada and the United 

States to present no known security 

concern. 

Lawful permanent resident alien

means a lawful permanent resident 

alien of the United States as defined by 

8 U.S.C. 1101(a)(2). 

Offeror means the person offering a 

shipment to the railroad carrier for 

transportation from Canada to the 

United States, and may also be known 

as the ‘‘consignor’’ in Canada. 

Railroad carrier means ‘‘railroad 

carrier’’ as defined in 49 U.S.C. 20102. 

(c) Prior approval of railroad carrier, 

offeror, and train crew member. (1) No 

railroad carrier may transport in 

commerce any explosive into the United 

States from Canada via a train operated 

by a crew member who is not a United 

States citizen or lawful permanent 

resident alien unless the railroad carrier, 

offeror, and train crew member are 

identified on a TSA list as a known 

railroad carrier, known offeror, and 

known train crew member, respectively. 

(2) The railroad carrier must ensure 

that it, its offeror, and each of its crew 

members have been determined to be a 

known railroad carrier, known offeror, 

and known train crew member, 

respectively. If any has not been so 

determined, the railroad carrier must 

submit the following information to 

Transport Canada: 

(i) The railroad carrier must provide 

its: 

(A) Official name; 

(B) Business number; 

(C) Any trade names; and 

(D) Address. 

(ii) The following information about 

any offeror of explosives whose 

shipments it will carry: 

(A) Official name; 

(B) Business number; and

(C) Address. 

(iii) The following information about 

any train crew member the railroad 

carrier may use to transport explosives 

into the United States from Canada who 

is neither a United States citizen nor 

lawful permanent resident alien: 

(A) Full name; and 

(B) Both current and most recent prior 

residential addresses. 

(3) Transport Canada will determine 

that the railroad carrier and offeror are 

legitimately doing business in Canada 

and will also determine that the train 

crew members present no known 

problems for purposes of this section. 

Transport Canada will notify TSA of 

these determinations by forwarding to 

TSA lists of known railroad carriers, 

offerors, and train crew members and 

their identifying information. 

(4) TSA will update and maintain the 

list of known railroad carriers, offerors, 

and train crew members and forward 

the list to the Customs Service. 

(5) Once included on the list, the 

railroad carriers, offerors, and train crew 

members need not obtain prior approval 

for future transport of explosives under 

this section. 

(d) TSA checks. TSA may periodically 

check the data on the railroad carriers, 

offerors, and train crew members to 

confirm their continued eligibility and 

may remove from the list any that TSA 

determines is not known or is a threat 

to security. 

(e) At the border (1) Train crew 

members who are not United States 

citizens or lawful permanent resident 

aliens. Upon arrival at a point 

designated by the Customs Service for 

inspection of trains crossing into the 

United States, the train crew members 

of a train transporting explosives must 

provide sufficient identification to the 

Customs Service to enable that agency 

to determine if each crew member is on 

the list of known train crew members 

maintained by TSA. 

(2) Train crew members who are 

United States citizens or lawful 

permanent resident aliens. If the 

Customs Service cannot verify that the 

crew member is on the list and the crew 

member is a United States citizen or 

lawful permanent resident alien, the 

crew member may be cleared by the 

Customs Service upon providing: 

(i) A valid United States passport; or 

(ii) One or more other document(s) 

including a form of United States 

Federal or state government-issued 

identification with photograph, 

acceptable to the Customs Service. 

(3) Compliance. If a carrier attempts to 

enter the United States without having 

complied with this section, the Customs 

Service will deny entry of the 

explosives and may take other 

appropriate action.

Issued in Arlington, Virginia on November 

19, 2004. 

David M. Stone, 

Assistant Secretary.

[FR Doc. 04–26066 Filed 11–19–04; 4:33 pm] 

BILLING CODE 4910–62–P