# Security Threat Assessment for Individuals Applying for a Hazardous Materials Endorsement for a Commercial Driver's License > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A04-26066 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** November 24, 2004 - **Citation:** 69 FR 68720 ## Text 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 fingerprint-based checks for transfer and renewal applicants to May 31, 2005. The rule no longer requires the States to forward all driver applications to TSA, but the States must retain the applications for one year. States that elect to collect fingerprints and driver information must submit the information and fingerprints electronically, with some initial assistance from TSA. Finally, TSA is reducing the amount of advance notice the States must provide to drivers who hold hazardous materials endorsements regarding the need for a security threat assessment upon renewal. TSA is making these changes in response to comments received from the affected parties and to clarify further the implementation of this program. DATES: Effective Date: This rule is effective November 24, 2004. Comment Date: Submit comments by December 27, 2004. ADDRESSES: You may submit comments, identified by the TSA docket number to this rulemaking, using any one of the following methods: Comments Filed Electronically : You may submit comments through the docket Web site at http://dms.dot.gov. Please be aware that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the applicable Privacy Act Statement published in the Federal Register on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov. You also may submit comments through the Federal eRulemaking portal at http://www.regulations.gov. Comments Submitted by Mail, Fax, or In Person : Address or deliver your written, signed comments to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001; Fax: 202-493-2251. Comments on Paperwork Collection : Comments may be faxed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: DHS-TSA Desk Officer, at (202) 395-5806. Comments may be mailed to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: DHS-TSA Desk Officer. Declarations Submitted by the States : Address the State Declarations required in § 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 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). 1 Pub. L. 107-71, November 19, 2001, 115 Stat. 597. On May 5, 2003, TSA published an interim final rule (May 5 IFR) that requires a security threat assessment of commercial drivers who are authorized to transport hazardous materials in commerce. 2 The May 5 IFR implemented several statutory mandates discussed below, including fingerprint-based criminal history records checks (CHRC), checks against international databases, and appeal and waiver procedures. The May 5 IFR required CHRC to begin no later than November 3, 2003. 2 68 FR 23852 (May 5, 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. 3 68 FR 63033 (November 7, 2003). 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. 4 69 FR 17696 (April 6, 2004). 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. 5 Department of Homeland Security Appropriations Act, 2004, Section 520, Pub. L. 108-90, October 1, 2003, 117 Stat. 1137. 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: 6 Pub. L. 107-56, October 25, 2001, 115 Stat. 272. A State may not issue to any individual a license to operate a motor vehicle transporting in commerce a hazardous material unless the Secretary of Transportation has first determined, upon receipt of a notification under subsection (c)(1)(B), that the individual does not pose a security risk warranting denial of the license. 7 7 The Secretary of Transportation delegated the authority to carry out the provisions of this section to the Under Secretary of Transportation for Security/Assistant Secretary. 68 FR 10988, March 7, 2003. Section 5103a(a)(2) subjects license renewals to the same requirements. Section 5103a(c) requires the Attorney General, upon the request of a State in connection with issuance of an HME, to carry out a background records check of the individual applying for the endorsement and, upon completing the check, to notify the Secretary (as delegated to the Assistant Secretary) of the results. The Secretary then determines whether the individual poses a security risk warranting denial of the endorsement. The security threat assessment must consist of: (1) A check of the relevant criminal history databases; (2) in the case of an alien, a check of the relevant databases to determine the status of the alien under U.S. immigration laws; and (3) as appropriate, a check of the relevant international databases through Interpol-U.S. National Central Bureau or other appropriate means. III. Safe Explosives Act Congress enacted the Safe Explosives Act (SEA) on November 25, 2002. 8 Sections 1121-23 of the SEA amended section 842(i) of title 18, United States Code, by adding several categories to the list of persons who may not lawfully “ship or transport any explosive in or affecting interstate or foreign commerce” or “receive or possess any explosive which has been shipped or transported in or affecting interstate or foreign commerce.” Prior to the amendment, 18 U.S.C. 842(i) prohibited the transportation of explosives by any person under indictment for or convicted of a felony, a fugitive from justice, an unlawful user or addict of any controlled substance, and any person who had been adjudicated as lacking mental capacity 9 or committed to a mental institution. The 2002 amendment added three new categories to the list of prohibited persons: aliens, with certain exceptions; 10 persons dishonorably discharged from the armed forces; and former U.S. citizens who have renounced their citizenship. Individuals who violate 18 U.S.C. 842(i) are subject to criminal prosecution. 11 These incidents are investigated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) of the Department of Justice and referred, as appropriate, to the United States Attorneys. 8 Pub. L. 107-296, November 25, 2002, 116 Stat. 2280. 9 Since 1970, the Federal explosives law has identified a category of persons prohibited from possessing explosives as “adjudicated as a mental defective.” TSA is replacing this term with “adjudicated as lacking mental capacity.” However, these terms have the same meaning for the purposes of the Federal explosives law and the TSA hazmat requirements. 10 The prohibition in the SEA extends to each person— (5) Who is an alien, other than an alien who— (A) Is lawfully admitted for permanent residence (as that term is defined in section 101(a)(20) of the Immigration and Nationality Act); or (B) Is in lawful nonimmigrant status, is a refugee admitted under section 207 of the Immigration and Nationality Act (8 U.S.C. 1157), or is in asylum status under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158), and— (i) Is a foreign law enforcement officer of a friendly foreign government, as determined by the Secretary in consultation with the Secretary of State, entering the United States on official law enforcement business, and the shipping, transporting, possession, or receipt of explosive materials is in furtherance of this official law enforcement business; or (ii) Is a person having the power to direct or cause the direction of the management and policies of a corporation, partnership, or association licensed pursuant to section 843(a), and the shipping, transporting, possession, or receipt of explosive materials is in furtherance of such power; (C) Is a member of a North Atlantic Treaty Organization (NATO) or other friendly foreign military force, as determined by the Attorney General in consultation with the Secretary of Defense, who is present in the United States under military orders for training or other military purpose authorized by the United States and the shipping, transporting, possession, or receipt of explosive materials in furtherance of the authorized military purpose; or (D) Is lawfully present in the United States with the Director of Intelligence, and the shipment, transportation, receipt, or possession of the explosive materials is in furtherance of such cooperation;* * *'' 11 The penalty for violation of 18 U.S.C. 842(i) is up to ten years imprisonment and a fine of up to $250,000. 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 State legislative authority to conduct the program and to collect fees to pay for the States' costs in implementing the program. To the fullest extent possible, TSA has issued extensions of time for the start date of the fingerprint-based CHRC to accommodate these requests and to provide TSA time to develop the fee proposed rule, after TSA obtained legislative authority to collect user fees to support the security threat assessment program. Many of the States raised technical questions concerning the electronic interface that must exist for the States, TSA, and the Federal Bureau of Investigation (FBI) to receive and transmit data. These are daunting issues in light of the fact that each State and the Federal agencies have unique data management systems, with varying levels of sophistication. TSA is building a new Credentialing Screening Gateway System (Screening Gateway) to collect, retain, and transmit all of the information that must be collected from the applicant to conduct a security threat assessment. Once this system is complete, TSA will be prepared to receive all of the data fields required when the applicant provides the required information for an HME. TSA considers the process for collecting applicants' fingerprints for purposes of this regulation—working through State Departments of Motor Vehicles and allowing States either to collect the fingerprints themselves or to ask TSA to do so—as the best process to implement the USA PATRIOT Act's requirements in the near term. DHS is collecting fingerprints for other Departmental programs and expects to implement other programs in the future that will involve fingerprint collection. As all of these programs evolve, DHS will consider whether processes for this program, or for several DHS programs, can be consolidated to improve efficiency while fulfilling security needs. If greater efficiencies are possible, TSA will consider amending this rule, if necessary, to achieve those efficiencies. TSA is not requiring the States to develop new connectivity with the TSA Screening Gateway. In States that choose to collect fingerprints and applicant information rather than use TSA for that purpose, the State will be responsible for transmitting the information to TSA electronically through the existing Commercial Drivers License Information System (CDLIS), and ensuring that the fingerprints are forwarded to the FBI in a form and manner consistent with FBI and TSA standards. TSA will assist in the electronic transfer of information in States that are in the process of upgrading their systems when the rule becomes effective. In these States, for a short time TSA will accept the information in alternate forms, such as email or facsimiles; and will format or digitize the information into a useable format until the States' computer upgrades are complete. TSA believes that the ability to exchange information electronically will benefit the States, the industry, and TSA in the long run and so TSA encourages the States to opt for this process. If a State knows that it will not be able to transmit the information electronically until after July 2005, however, the State should formally elect to have TSA capture the fingerprints and driver information. TSA can staff the data entry for a short period of time until a State's computer system is upgraded, but TSA does not have the resources to perform that task beyond July 2005. B. List of Disqualifying Criminal Offenses. Many individual drivers, trucking companies, and the States submitted comments on the list of disqualifying offenses in the Current Rule. For that reason, TSA reevaluated the list in order to ensure that it is not over- or under-inclusive. As a result, TSA is making several changes to the list of disqualifying crimes. The list of permanently disqualifying offenses in the Current Rule includes espionage, treason, sedition, a crime involving a transportation security incident, improper transportation of a hazardous material, a terrorist crime, arson, unlawful use of an explosive, and conspiracy to commit any of these crimes. TSA is making four changes to the list of permanently disqualifying offenses: arson is reclassified as an interim rather than a permanent disqualifier, violations of the Racketeer Influenced Corrupt Organizations Act (RICO) are permanently disqualifying if an underlying crime is a permanent disqualifier (such as a terrorist conviction under 18 U.S.C. chapter 113B); TSA is adding unlawful purchase, receipt, transfer, shipping, transporting, import, export or storage of an explosive to former paragraph 1572.103(b)(9); and TSA is reclassifying murder as a permanently disqualifying crime. TSA is amending the list of interim disqualifying offenses by adding arson and unlawful purchase, receipt, transfer, shipping, transporting, import, export or storage of a firearm, and by reclassifying murder and removing simple drug possession from the list. Possession with intent to distribute remains an interim disqualifying offense. TSA developed the list of disqualifying felony convictions in consultation with the Department of Justice (DOJ) and DOT, to include those offenses that are reasonably indicative of an individual's predisposition to engage in violent or deceptive behavior that may be predictive of a security threat. Some States suggested that all criminal convictions should be disqualifying. The USA PATRIOT Act requires TSA to “review relevant criminal databases” and appropriate international databases to determine whether the applicant poses a security threat. Based on the legislative language and the need to keep commerce moving, TSA believes that disqualification of all drivers with a criminal record is not necessary. Past history and current threat information do not indicate that all persons with a criminal conviction pose a security threat. We believe that the rule lists the criminal offenses that indicate an individual's predisposition to engage in violent or deceptive activity that may reasonably give rise to a security threat. TSA is removing simple possession of a controlled substance from the list based on comments received and our own analysis. Simple drug possession generally does not involve violence against others or reveal a pattern of deception, as crimes like smuggling or bribery often do. In addition, FMCSA's regulations governing the commercial driver's license program require CDL holders to undergo pre-application, post-accident, and random alcohol and drug testing. 49 CFR part 382. A positive drug or alcohol test will result in restrictions on the driver's CDL or disqualification. TSA believes that these standards act as a strong deterrent against alcohol or drug use while employed as a CDL driver. To the extent that an individual with a simple drug possession conviction presents a threat, the current CDL testing requirements most likely deter dangerous individuals with drug use problems from seeking employment as a hazmat driver. Based on this, and because simple drug possession generally does not fall within the class of crimes involving violence or deception, TSA has determined that there should be no adverse impact resulting from removing conviction for simple possession of a controlled substance from the list of disqualifying offenses. Conviction for possession of drugs with intent to distribute remains a disqualifying crime. We are reclassifying arson as an interim rather than a permanent disqualifying offense. In reevaluating 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. 12 49 CFR 384.212. 13 49 CFR 383.5. 14 49 CFR 383.23(b). 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 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 would like to receive some of the information that will be collected for the security threat assessment. TSA is sensitive to these issues and has established safeguards to ensure that all information will be handled in accordance with the Privacy Act of 1974. 15 15 5 U.S.C. 552a, as amended. TSA employees and contractors are bound by law and contract to abide by Federal privacy laws to protect personal information from unauthorized disclosure. There are criminal sanctions for individuals who violate these laws. TSA has published its Privacy Act System of Records 16 for this program, detailing the information to be collected, how it will be used, and the routine uses of that information. TSA's System of Records discussed above permits sharing information with employers in its routine uses section. The personal information will be password protected and secured against unauthorized access. 16 69 FR 57349 (September 24, 2004). As a matter of efficiency, TSA intends to maintain as much consistency as possible between the current hazmat driver and future maritime programs. The Maritime Transportation Security Act (MTSA) 17 requires a security threat assessment of workers with unescorted access to secure areas of ports, maritime vessels, and facilities. MTSA provides that any information constituting the grounds for denial of a transportation worker identification card must be maintained confidentially by the Secretary; an individual's employer may be informed of whether or not the individual has been cleared. 18 With respect to the hazmat program, any notification TSA makes to an employer will relay whether the driver's endorsement has been revoked so that the employer knows that the driver is not authorized to transport hazmat. Actual criminal history or other dispositive records will not be shared with employers. If TSA determines that an imminent threat exists and additional measures are necessary to secure a facility, TSA may provide additional information to the employer to help prevent a security incident. 17 Pub. L. 107-295, November 25, 2002, 116 Stat. 2064. 18 46 U.S.C. 70105(e). It is also important to note that the FBI places restrictions on who may have access to the raw data obtained during a fingerprint-based CHRC. See 28 CFR 50.12. These restrictions would also apply to an employer's use of certain information. TSA is considering requiring all employers to maintain a list of employees who hold HMEs, so that in the event that TSA wishes to notify an employer that an employee is not authorized to transport hazmat, TSA will have the information necessary to contact the employer. TSA may require each employer to maintain this list on a secure website that TSA can access easily and to update the list periodically. TSA has similar requirements in place in aviation. For instance, each airport must maintain a current list of individuals who have unescorted access to secure areas of an airport, and conduct periodic audits to ensure that the list is accurate. 49 CFR 1542.211. TSA requests comments from the industry concerning methods to establish such a database that would impose the fewest burdens and costs. Also, TSA requests comments on additional measures that would be useful in protecting this information from unauthorized access. G. Tiered Background Checks In one comment, an individual driver asked TSA to consider developing a tiered security threat assessment, with more stringent standards in place for the transportation of dangerous goods, such as weapon systems, chemical and biological warfare materials, and bulk fuels. Individuals who haul less dangerous products, such as asbestos, lithium batteries, food coloring, corn syrup, and bleach would undergo a security threat assessment, but with a shorter list of disqualifying offenses. TSA has discussed this principle internally for use across all modes of transportation. Under this approach, individuals with unescorted access to highly sensitive information, equipment, areas, or products would undergo a very intensive background check, and those with access to less sensitive material would complete a check of relevant criminal databases, particularly for outstanding wants and warrants, immigration status, and appropriate terrorist watch lists. The difficulty with this approach is that it increases the costs, time, and resources necessary to track a particular shipment through the transportation system and make certain that only individuals with the appropriate background check come in contact with the shipment. TSA and DOT faced this problem with explosives shipments. Manufacturers and shippers were not willing to ship explosives in commerce because the SEA was originally going to be implemented in such a way that no felon could transport the explosive. The industry understood that it would not be possible to know at one end of the shipment process who might handle the package before it reaches its destination. In the scenario the commenter proposes, a significant amount of time would have to be spent by the industry to ensure that a box of explosives entering the transportation system in California does not travel through the hands of an individual who had not completed the most stringent security threat assessment before it reaches Vermont. We note in this regard that the Current Rule, as amended by this IFR, provides for a tiered security threat assessment in that the driver background check requirements apply to drivers who transport “placarded” amounts of hazardous materials and select agents. “Placarded” amounts and materials are liquid, gaseous, or solid products that DOT has determined to be hazardous in transportation and require special marking and packaging while transported in commerce. (49 CFR part 172). In the May 5 IFR (68 FR 23832) TSA and DOT determined that the most significant security risks associated with the transportation of hazardous materials in commerce involve the transportation of certain radioactive materials, certain explosives, materials that are poisonous by inhalation, certain infectious and toxic substances, and bulk shipments of materials such as flammable and compressed gases, flammable liquids, flammable solids, and corrosives. This list generally correlates to the types and quantities of hazardous materials for which placarding is required. Using the placarding thresholds to trigger enhanced security requirements covers the materials that present the most significant security threats in transportation and provides a relatively straightforward way to distinguish materials that may present a significant security threat from materials that do not. It also provides consistency for the regulated community, thereby minimizing confusion and facilitating compliance. As the security programs administered by TSA mature, we intend to develop additional refinements to the process while maintaining a high level of security. H. HME Transfers Several drivers and State agencies have requested different standards for HME holders who must transfer the HME to a new State of residence. They cite the difficulty a driver faces if he undergoes security threat assessments for example, in February 2005 in Virginia, and must complete a second security threat assessment if he moves 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 intelligence-related information, there can be no rational reason to grant him a waiver of the standards. Further, disqualifications under paragraphs 1572.107(a) or (b) are based on individual determinations that, based on all of the circumstances, the applicant poses a threat. This scenario is unlike situations under § 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. 19 49 U.S.C. 114. K. Acceptance of Background Checks Conducted by Other Agencies TSA has received inquiries concerning the acceptance of background checks completed by other public and private entities. They urge TSA to recognize these checks as comparable to the security threat assessment required in this rule to avoid duplication of effort and unnecessary cost. Consistent with Homeland Security Presidential Directive-11 on comprehensive terrorist-related screening procedures and Homeland Security Presidential Directive-12 on common identification standards, TSA is committed to “standardizing” the security threat assessment process to the fullest extent possible. TSA will continue to work with all appropriate Federal agencies to ensure comparable background checks and threat assessments to avoid duplication of effort and minimize costs. TSA also recognizes that broader Federal Government efforts are underway to develop standardized screening for multiple programs across the Federal Government and the private sector. As these procedures are developed and implemented government-wide, TSA will consult with other Federal agencies to provide reciprocity with respect to comparable security screening programs. VI. Summary of This Interim Final Rule This document published today (referred to throughout the remainder of this document as the IFR) restructures the Current Rule text for clarity and organization. The chart below provides the section number in the Current Rule and the corresponding new section number used in this IFR. Old section New section 1572.5(b) 1572.11 1572.5(c) 1572.13(a)-(d) 1572.5(d)(1) 1572.5(c) 1572.5(d)(2) 1572.5(b) 1572.5(e) 1572.9 1572.5(f) 1572.103 1572.5(g) 1572.15(d)(1) 1572.9 1572.201 1572.11 1572.203 This IFR changes the Current Rule by amending the security threat assessment procedures into three distinct phases: the fingerprint-based check, the intelligence-related check, and the final disposition. As the Current Rule requires and under this IFR, TSA adjudicates the results of the fingerprint- and intelligence-related checks. As provided in this IFR and the Current Rule, after adjudication, TSA issues a Determination of No Security Threat to the State if the records do not disclose disqualifying information. TSA issues an Initial Determination of Threat Assessment to the applicant if the results of the threat assessment reveal a disqualifying standard. The applicant may file an appeal of the Initial Determination with TSA, based on assertions that the underlying records are incorrect or the records refer to a different individual. After completion of 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. 20 Department of Homeland Security Appropriations Act, 2004, section 520, Pub. L. 108-90, October 1, 2003, 117 Stat. 1137. Section 520 requires that any fee collected must be available only to pay for the costs incurred in providing services in connection with performing the background check or providing the credential. The fee may remain available until expended. TSA must establish this fee in accordance with the criteria in 31 U.S.C. 9701 (General User Fee Statute), which requires fees to be fair and based on (1) costs to the government, (2) the value of the service or thing to the recipient, (3) public policy or interest served, and (4) other relevant facts. To the extent possible, TSA intends for these fees to be relatively consistent for other TSA background check programs. In this IFR, TSA is requiring States to choose between two fingerprint collection options. Each State must either: (1) Collect and transmit the fingerprints and applicant information of individuals who apply for or renew an HME; or (2) allow an entity approved by TSA (TSA agent) to collect and transmit the fingerprints and applicant information of such individuals. States are required to notify TSA in writing of their choice within 30 days after the date this IFR is published in the Federal Register . If a State does not notify TSA in writing of its choice by that date, TSA will assume that the State has chosen the second option and will work with the State to establish a system for a TSA agent to collect fingerprints and applicant information in the State. The State will be required to operate under the option it chooses until at least January 31, 2008, unless otherwise approved by TSA. TSA is requiring a specific initial time period of three years so that TSA and the TSA agent can adequately assess the overall cost of implementing the program. The fingerprint portion of the threat assessment will be effectively staggered initially as new applicants apply for the first time and as existing HME holders apply to renew their endorsement. If the States could change position on a yearly basis, the TSA agent would make its initial contract bid based on inaccurate cost projections. With a specific time period, the TSA agent can estimate with more certainty how many applicants must be processed, how much equipment is needed, where the collection centers will be located, and the number of employees needed to carry out the collection tasks. To comply with the mandates of Section 520 of the 2004 Appropriations Act, the USA PATRIOT Act, and the SEA, TSA is issuing a companion notice of proposed rulemaking (Fee NPRM) to establish user fees for individuals who apply to obtain or renew an HME, and thus are required to undergo a security threat assessment in accordance with 49 CFR part 1572. In the Fee NPRM, TSA proposes to establish two new user fees in addition to the FBI fee for performing the CHRC on behalf of government agencies for non-governmental applicants: (1) A fee to cover TSA's costs of performing and adjudicating security threat assessments, appeals, and waivers (Threat Assessment Fee); and (2) a fee to cover the costs of collecting and transmitting fingerprints and applicant information (Information Collection and Transmission Fee). 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 underscore that TSA considers the information the applicant puts on the application as accurate and will rely on it for service of documents. The term “day” used in the rule means calendar day and is the same definition used in the Current Rule. “Determination of No Security Threat” is an administrative determination by TSA that an individual does not pose a security threat that warrants denial of the authorization to transport hazardous materials. Also, TSA will issue a Determination of No Security Threat to the State when TSA issues a waiver. This term is a replacement for “Notification of No Security Threat” that is used in the Current Rule, but has the same meaning. TSA will use “determination” in place of “notification” throughout the definitions. The term “Director” refers to the officer designated by the Assistant Secretary to administer the appeal and waiver programs described in this part, unless the Assistant Secretary is specifically designated in the rule to administer the appeal or waiver program. The Director is authorized to name a designee to perform these duties, except where the IFR specifically designates the Assistant Secretary to administer the appeal or waiver program. TSA is adding a definition of explosive or explosive device, which includes an explosive or explosive material defined in 18 U.S.C. 232(5), 841(c)-(f), and 844(j), and a destructive device defined in 18 U.S.C. 921(a)(4) and 26 U.S.C. 5845(f). The addition of this definition does not alter the substance of the rule in any way; it simply provides clarity for individuals looking for guidance on the items that constitute an explosive. The list is illustrative, not exhaustive. “Final Determination of Threat Assessment” means a final determination by TSA that an individual does not meet the standards required to hold or obtain a hazardous materials endorsement. A Final Determination may not be administratively appealed. In the Current Rule, this action is referred to as a Final Notification of Threat Assessment. We are changing “notification” to “determination” to reflect more accurately the action being taken. “Final Disposition” is a new term in the IFR that describes the actions that must be taken when a security threat assessment is complete. TSA is adding a definition of “firearm or other weapon,” which includes firearms defined in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a) or items contained on the U.S. Munitions Import List at 27 CFR 447.21. The addition of this definition does not alter the substance of the rule in any way; it simply provides clarity for individuals looking for guidance on the items that constitute an explosive. The list is illustrative, not exhaustive. A “hazardous material” means any material that: (1) In accordance with Federal hazardous materials transportation law (49 U.S.C. 5101 et seq. ), has been determined to pose an unreasonable risk to health, safety, and property when transported in commerce and that is required to be placarded under subpart F of part 172 of the Hazardous Materials Regulations (49 CFR parts 171-180); or (2) any quantity of any material listed as a select agent or toxin by Centers for Disease Control and Prevention (CDC) in 42 CFR part 73. This is the same definition used in section 103 of the Hazardous Materials Transportation Act and in the Current Rule. DOT evaluates materials to determine whether their respective characteristics, properties, and quantities in transportation merit special marking, storage, and handling procedures. TSA, in consultation with DOT, has determined that non-placarded shipments do not present a sufficient security risk in transportation to warrant application at this time of the TSA background check requirements to persons who possess or transport these materials, including persons subject to 18 U.S.C. 842(i). “Hazardous materials endorsement (HME)” is the authorization issued by a State Department of Motor Vehicles (DMV) to transport hazardous materials in commerce. An HME attaches to a truck driver's commercial driver's license (CDL), which is also issued by a State DMV. “Incarceration” means confinement to a jail, half-way house, treatment facility, or other institution, on a full or part-time basis pursuant to a sentence imposed due to a conviction. This definition is taken from a statutory definition of “imprisoned” in 22 U.S.C. 2714, which relates to denial of passports due to certain drug offense convictions. It is the same as the definition used in the Current Rule. We have used this definition of incarceration because it is used in similar Federal regulatory programs, such as those involving the issuance or approval of passports. See 5 CFR 890.1003; 42 CFR 1001.2. TSA is adding a definition for “imprisoned or imprisonment,” which is a new term used in § 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, 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 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. 21 2004 Department of Homeland Security Appropriations Act, Section 520, Pub. L. 108-90, October 1, 2003, 117 Stat. 1137. Section 1572.13 State Responsibilities for Issuance of Hazardous Materials Endorsement This section lists all of the responsibilities that the States must perform in order to ensure that only individuals who meet the security threat assessment standards receive a hazmat endorsement. These requirements are very similar to the requirements in the Current Rule. Paragraph (a) provides that each State must immediately revoke an individual's hazardous materials endorsement if TSA informs the State that the individual does not meet the standards for security threat assessment in § 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 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 renewal period established in the preceding issuing State expires. Paragraph (h) provides that each State must retain all applicant information collected for the security threat assessment for at least one year. TSA believes this requirement is necessary to ensure that the information is available if questions or appeals arise in the course of the security threat assessment. The States, as licensing bodies, currently keep some of this information now as part of the commercial drivers license and HME program. The State may keep this information in paper or electronic form. Section 1572.15 Procedures for Security Threat Assessment This section describes the security threat assessment process in detail, and provides that no State can issue an HME unless the steps outlined in this section have been completed. The process includes the fingerprint-based check, an intelligence-related check, and a final disposition. The fingerprint-based check covers an individual's criminal history to determine whether the applicant has been convicted of or incarcerated for a disqualifying felony under Federal, State, or local law. In addition, TSA can review databases related to an applicant's dishonorable discharge from the armed service, if any, during this phase of the security threat assessment, which may indicate whether the applicant has a disqualifying military conviction. This check requires collecting fingerprints and applicant information, and submitting the prints to the FBI and the information to TSA. The intelligence-related check involves the use of an applicant's biographical and identification information that is collected during the HME application process. This check searches for potential terrorist activity, immigration status, and mental incompetency. In many cases, only certain Federal agencies are authorized to access the pertinent databases to complete these checks, and some of these databases may be classified. Once TSA has received the results of the fingerprint- and intelligence-related checks, TSA reviews them to determine if the individual meets the security threat assessment standards. If the applicant meets the standards, TSA will notify the State with a Determination of No Security Threat for the applicant. Once the State receives this Determination, it issues or renews the HME. If TSA determines that an applicant does not meet the standards for holding an HME, TSA issues an Initial Determination of Threat Assessment to the applicant. The Initial Determination includes the basis for the determination; instructions on how the individual may appeal the finding; and a statement that if the applicant does not appeal the finding, the Initial Determination becomes a Final Determination of Threat Assessment, which cannot be appealed. If the applicant does not appeal the finding, TSA notifies the issuing State, and the State cannot issue, renew, or transfer the applicant's HME. If an applicant appeals the Initial Determination, but the appeal does not overturn the Initial Determination, TSA notifies the State and applicant with a Final Determination of Threat Assessment. However, if TSA determines that the Initial Determination was inaccurate (due to incomplete court records, for instance) and grants the appeal, TSA issues a Withdrawal of the Initial Determination of Threat Assessment to the applicant and a Determination of No Security Threat to the State. This IFR now includes details of the process involved when an immediate revocation occurs. The State must immediately revoke an HME when so notified by TSA. TSA will issue an Initial Determination of Threat Assessment and Immediate Revocation when TSA's security threat assessment indicates that a driver may pose an imminent threat to national or transportation security. This issuance may also occur when an individual has a disqualifying offense, but has not surrendered his endorsement, as required by the rule. Under this procedure, the individual's HME is revoked immediately and he may appeal the revocation afterward. Also, if TSA does not receive an appeal of an Initial Determination of Threat Assessment and Immediate Revocation within the prescribed time periods, the Initial Determination becomes final. If TSA grants the appeal, TSA will issue a Withdrawal of the Initial Determination to the applicant and Determination of No Security Threat to the State. It is important to note that TSA may begin the final disposition phase of the threat assessment process after receiving adverse information from the fingerprint- or intelligence-related portion of the check, even if both checks are not complete. For instance, if TSA obtains the results of an intelligence-related check before the fingerprint-based check, and the information identifies the applicant as a terrorist, TSA may issue its Initial and Final Determinations before the fingerprint check is complete. There is no reason to wait for all information to become available if the information in hand is disqualifying. We do not anticipate that this scenario will occur often. An applicant may appeal an adverse finding due to the fingerprint- or the intelligence-related checks. This process will often be a “correction of records” because the basis of the appeal is that the records on which TSA relied are not accurate or involve a different individual. In the case of an appeal of the intelligence-related check, the data or documents that gave rise to the adverse finding may be classified or otherwise protected by law, in which case TSA cannot release the document or information. However, TSA will make every effort to provide as much information to the applicant as the law permits to facilitate a meaningful appeal. Certain applicants disqualified from holding an HME may request a waiver of the standards. Individuals who commit certain disqualifying offenses or have a history of mental incapacity are eligible to apply for a waiver. Individuals identified as posing a threat under § 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 definition of “date of service” to underscore that TSA will use the address given on the application for service of documents. We invite comment on this issue from drivers and their associations as to how this concern can be minimized. Once the fingerprint- and intelligence-related checks are complete, paragraph (d) explains the actions TSA will take to conclude the assessment. Section 1572.103 Disqualifying Criminal Offenses Congress did not specify in the USA PATRIOT Act the criminal offenses that TSA must use to determine whether a person poses a security risk warranting denial of an HME. TSA considered the crimes listed in 49 U.S.C. 44936, which include misdemeanors and felonies, for individuals who have unescorted access to secured areas of airports or aircraft, security screeners, and other aviation personnel. However, TSA included only felonies, and felonies that constitute the most serious crimes as disqualifying. The list includes crimes that demonstrate an individual's willingness to commit violent acts against others for personal reasons, such as murder or assault with intent to murder. The list also includes the crime of smuggling contraband. TSA is concerned with the possibility that such an individual could be involved intentionally, or may be used unwittingly by others with malicious intent, in transporting items that could be used to commit terrorist acts. The listed offenses are considered grounds for disqualification whether they are prosecuted by civilian or military authorities. If an applicant has a disqualifying criminal offense, but believes that under the particular circumstances of the offense the applicant should not be determined to pose a security threat, the applicant may request a waiver under § 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 the applicant is disqualified from holding an HME. Section 1572.105 Immigration Status The USA PATRIOT Act and SEA require a check of the relevant databases to determine the applicant's status under U.S. immigration laws prior to authorizing the applicant to transport hazmat. In addition, longstanding rules concerning the qualifications needed to hold a CDL provide that the driver must have a State of domicile in the United States or hold a nonresident CDL. 22 The Current Rule requires applicants for an HME security threat assessment to be U.S. citizens or lawful permanent residents. As discussed in greater detail above, in this IFR, TSA expands the group eligible to apply for an HME security threat assessment to include individuals who are qualified to hold a CDL, but who are not U.S. citizens or lawful permanent residents. This group includes nonimmigrant aliens, asylees, and refugees, who are in lawful status and possess valid and unrestricted documentation establishing eligibility for employment. These changes are reflected in paragraph (a) of this section. TSA is making one additional change to paragraph (a)(1) of this section by adding that an applicant must be a citizen who has not renounced “or lost” his or her citizenship. TSA is adding this language to cover instances in which a citizen is stripped of U.S. citizenship, as is the case with Nazi war criminals. It is unlikely that this situation will arise in the context of hazmat drivers, but TSA wishes to make certain that the rule covers instances in which it does occur. 22 49 CFR 384.212. To determine an individual's immigration status, TSA checks the relevant immigration databases, and may perform other checks, including verifying the applicant's identity and Social Security Number. Section 1572.107 Other Analyses Section 1012 of the USA PATRIOT Act requires background checks of relevant international databases, such as Interpol-U.S. National Central Bureau, or other appropriate sources. TSA checks these data [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A04-26066. Public record. Not legal advice.