[Federal Register: May 5, 2003 (Volume 68, Number 86)]
[Rules and Regulations]               
[Page 23851-23873]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my03-24]                         


[[Page 23851]]

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Part VI





Department of Homeland Security





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Transportation Security Administration



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49 CFR Parts 1570 and 1572



Security Threat Assessment for Individuals Applying for a Hazardous 
Materials Endorsement for a Commercial Drivers License; Final Rule


[[Page 23852]]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Parts 1570 and 1572

[Docket No. TSA-2003-14610; Amendment No. 1572-1]
RIN 1652-AA17

 
Security Threat Assessment for Individuals Applying for a 
Hazardous Materials Endorsement for a Commercial Drivers License

AGENCY: Transportation Security Administration (TSA), Department of 
Homeland Security (DHS).

ACTION: Interim final rule; request for comments.

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SUMMARY: The Transportation Security Administration (TSA) is amending 
the Transportation Security Regulations to establish security threat 
assessment standards for determining whether an individual poses a 
security threat warranting denial of a hazardous materials endorsement 
for a commercial drivers license (CDL). TSA is also establishing 
procedures for seeking a waiver from the standards and for appealing a 
security assessment determination.
    TSA is issuing this interim final rule in coordination with a 
separate interim final rule being issued by the Federal Motor Carrier 
Safety Administration (FMCSA). The FMCSA rule amends the Federal Motor 
Carrier Safety Regulations governing commercial drivers licenses to 
prohibit States from issuing, renewing, transferring, or upgrading a 
commercial drivers license with a hazardous material endorsement unless 
the Department of Justice has first conducted a background records 
check of the applicant and the TSA has determined that the applicant 
does not pose a security threat warranting denial of the hazardous 
materials endorsement. These interim final rules implement the 
background records check requirements of section 1012 of the Uniting 
and Strengthening America by Providing Appropriate Tools Required to 
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and 
also establish requirements regarding the transportation of explosives 
in commerce.

DATES: This final rule is effective May 5, 2003. Comments must be 
received on or before July 7, 2003.

ADDRESSES: Comments Submitted by Mail: Address written, signed comments 
to the Docket Management System, U.S. Department of Transportation, 
Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You 
must identify the docket number TSA-2003-14610 at the beginning of your 
comments, and you should submit two copies of your comments. If you 
wish to receive confirmation that TSA received your comments, include a 
self-addressed, stamped postcard on which the following statement is 
made: ``Comments to Docket No. TSA-2003-14610.'' The postcard will be 
date-stamped and mailed to you.
    Comments Filed Electronically: You may also submit comments through 
the Internet at http://dms.dot.gov.
    Reviewing Comments in the Docket: You may review the public docket 
containing comments on this proposed rule in person in the Dockets 
Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. The Dockets Office is on the plaza level of the NASSIF 
Building at the Department of Transportation at the above address. 
Also, you may review public dockets on the Internet at http://dms.dot.gov
.

FOR FURTHER INFORMATION CONTACT: For technical issues, Stephen Sprague, 
Office of Maritime and Land, Transportation Security Administration 
Headquarters, West Building, Floor 9, 400 Seventh Street, SW., 
Washington, DC 20590; e-mail: patriotact@tsa.dot.gov; telephone: 571-
227-1500.
    For legal issues, Dion Casey, Office of Chief Counsel, 
Transportation Security Administration Headquarters, West Building, 
Floor 8, TSA-2, 400 Seventh Street, SW., Washington, DC 20590; e-mail: 
Dion.Casey@tsa.dot.gov; telephone: 571-227-2663.

SUPPLEMENTARY INFORMATION:

Comments Invited

    This interim final rule is being adopted without prior notice and 
prior public comment. However, interested persons are invited to 
participate in this rulemaking by submitting written data, views, or 
arguments. Comments must include the regulatory docket or amendment 
number and must be submitted in duplicate to the address above. All 
comments received, as well as a report summarizing each substantive 
public contact with TSA personnel on this rulemaking, will be filed in 
the public docket. The docket is available for public inspection before 
and after the comment closing date.
    TSA will consider all comments received on or before the closing 
date for comments. Comments filed after the closing date will be 
considered to the extent practicable.
    See ADDRESSES above for information on how to submit comments.

Availability of Rulemaking Document

    You can get an electronic copy of this final rule using the 
Internet by taking the following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search
).
    (2) On the search page type in the last digits of the docket number 
shown at the beginning of this document. Click on ``search.''
    (3) On the next page, which contains the docket summary information 
for the docket you selected, click on the final rule.
    You also may get an electronic copy by accessing the Government 
Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html
 or the TSA Laws and Regulations Web page at http://www.tsa.dot.gov/public/index.jsp, or by writing or calling the 
individuals listed in the FOR FURTHER INFORMATION CONTACT section. You 
must 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 
rulemaking document may contact the persons listed in ``For Further 
Information Contact'' for information. You can get 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
DHS--Department of Homeland Security
DOJ--Department of Justice
DOT--Department of Transportation
FMCSA--Federal Motor Carrier Safety Administration
HSA--Homeland Security Act
HMR--Hazardous Material Regulations
MTSA--Maritime Transportation Security Act
RSPA--Research and Special Programs Administration

[[Page 23853]]

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

Background

    On September 11, 2001, several terrorist attacks were made against 
the United States. Those attacks resulted in catastrophic human 
casualties and property damage. In response to those attacks, 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. As of March 1, 2003, TSA became an agency of the 
Department of Homeland Security (DHS), and the Under Secretary is now 
the Administrator. TSA continues to possess the statutory authority 
that ATSA established. ATSA granted to the Administrator responsibility 
for security in all modes of transportation.\2\
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    \1\ Pub. L. 107-71, November 19, 2001, 115 Stat. 597.
    \2\ 49 U.S.C. 114(d).
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    As part of its security mission, TSA is responsible for assessing 
intelligence and other information in order to identify individuals who 
pose a threat to transportation security and to coordinate 
countermeasures with other Federal agencies to address such threats.\3\ 
The Administrator has an express mandate to identify and coordinate 
countermeasures to address threats to the transportation system, 
including the authority to receive, assess, and distribute intelligence 
information related to transportation security. TSA is charged with 
serving as the primary liaison for transportation security to the 
intelligence and law enforcement communities.\4\
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    \3\ 49 U.S.C. 114(f)(1)-(5), (h)(1)-(4).
    \4\ 49 U.S.C. 114(f)(1) and (5).
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    This authority includes conducting background checks on individuals 
in the transportation industries. The background checks may include 
collecting fingerprints to determine if an individual has a criminal 
conviction or the use of a name and other identifying characteristics 
to determine whether an individual has committed international or 
immigration offenses. In aviation, TSA has statutory authority to 
conduct background checks on individuals with unescorted access to 
secured areas of aircraft and airports.\5\ TSA has implemented this 
authority through a series of regulations that require fingerprint-
based criminal history records checks (CHRC) for flightcrew members, 
individuals with access to secured areas of airports and aircraft, 
screeners, and supervisors. If the individual has committed a 
disqualifying criminal offense within a prescribed time period, the 
individual is denied unescorted access to secured areas.\6\
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    \5\ 49 U.S.C. 44936.
    \6\ 49 CFR parts 1542 and 1544.
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    The Administrator is uniquely situated as an expert in 
transportation security, based on his functions, duties, and powers, to 
determine whether sufficient cause exists to believe that an individual 
poses a threat to transportation security.

USA PATRIOT Act

    The Uniting and Strengthening America by Providing Appropriate 
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act 
was enacted on October 25, 2001.\7\ 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:
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    \7\ 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.\8\
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    \8\ The Secretary of Transportation delegated the authority to 
carry out the provisions of this section to the Under Secretary of 
Transportation for Security/Administrator. 68 FR 10988, March 7, 
2003.

Section 5103a(a)(2) subjects license renewals to the same requirements.
    FMCSA advised TSA that there is no ``hazmat license'' per se under 
State or Federal law, and that the ``hazmat license'' referred to in 
section 1012 of the USA PATRIOT Act is the hazardous materials 
endorsement to a commercial drivers license (CDL), which is required by 
49 CFR 383.93(b)(4). Section 1012(b) of the Act amended 49 U.S.C. 
31305(a)(5), which prescribes fitness and testing standards for 
individuals operating a commercial motor vehicle carrying a hazardous 
material, by adding a new paragraph that requires an individual to 
undergo a background records check before the State issues a CDL to 
that individual. To qualify for the hazardous materials endorsement, an 
individual must first pass a specialized knowledge test (49 CFR 
383.121) in addition to the requisite general knowledge and skills 
tests required for a CDL.
    Section 5103a(c) requires the Attorney General, upon the request of 
a State in connection with issuance of a hazardous materials 
endorsement, 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 Administrator of TSA) of the 
results. The Secretary then determines whether the individual poses a 
security risk warranting denial of the endorsement. The background 
records check 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.

Maritime Transportation Security Act

    Congress enacted the Maritime Transportation Security Act (MTSA) on 
November 25, 2002.\9\ Section 102 of MTSA requires the Secretary \10\ 
to conduct background records checks for individuals with access to a 
secure area of a vessel or facility. It also requires the Secretary to 
establish procedures for processing appeals and applications for a 
waiver to security threat assessment standards.
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    \9\ Pub. L. 107-295, November 25, 2002, 116 Stat. 2064.
    \10\ ``Secretary'' is defined as the Secretary of the department 
in which the Coast Guard is operating. Effective March 1, 2003, the 
Coast Guard was transferred to the Department of Homeland Security 
under the Homeland Security Act.
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    TSA is including this discussion of the MTSA requirements because 
the agency plans to harmonize, to the extent possible, all of the 
various background checks that are required by statute, and so elements 
of MTSA appear in this rule. For instance, this rule requires a review 
of records for the preceding seven years in order to determine whether 
a conviction of a disqualifying criminal offense has occurred. This 
seven-year period is required by MTSA and is appropriate for use in the 
context of this rule.

Safe Explosives Act

    Congress enacted the Safe Explosives Act (SEA) on November 25, 
2002.\11\ Sections 1121-1123 of the SEA amended section 842(i) of Title 
18 of the U.S. Code by adding several categories to the list of persons 
who may not

[[Page 23854]]

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 a mental defective or committed to a mental institution. 
The amendment added three new categories to the list of prohibited 
persons: aliens (with certain limited exceptions), 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.\12\ 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.
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    \11\ Pub. L. 107-296, November 25, 2002, 116 Stat. 2280.
    \12\ 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.
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    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 
pertains 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. For 
example, the regulations set forth in this rule disqualify persons 
convicted of certain felonies from obtaining a CDL with a hazardous 
materials endorsement. Because the regulations address a particular 
aspect of the safe transportation of explosives materials, i.e., the 
threat to public safety posed by felons transporting hazardous 
materials, the exception contained in 18 U.S.C. 845(a)(1) applies, and 
felons transporting explosives in commerce would not be subject to 
criminal prosecution under section 842(i).
    In addition, if DOT determines that certain aspects of the 
transportation of explosives do not pose a security threat and 
therefore do not warrant regulations, the exception contained in 18 
U.S.C. 845(a)(1) also applies, and persons engaged in such 
transportation would not be subject to criminal prosecution under 
section 842(i). As discussed in greater detail throughout this 
document, this rule addresses all of the categories of individuals who 
are prohibited from transporting explosives via commercial motor 
carrier under the SEA, and thus 18 U.S.C. 845(a)(1) excepts those 
categories of individuals from prosecution under section 842(i) for 
activities occurring during and incident to the transportation of 
explosives in commerce.
    On February 6, 2003, TSA issued a regulation, effective 
immediately, establishing temporary requirements for all Canadian motor 
carriers and rail carriers using non-resident aliens to transport 
explosives into the U.S.\13\ In essence, the rule prohibits a Canadian 
commercial transporter of explosives from entering the U.S. unless he 
or she is identified as a known carrier. A transporter is considered a 
known carrier by submitting specified information to Transport Canada, 
an agency within the Canadian government that oversees transportation 
safety and security. Transport Canada conducts checks to ensure that 
the transporter is a legitimate entity authorized to do business in 
Canada, and that there are no security concerns with the transporter. 
Transport Canada forwards this information to TSA, which then conducts 
additional security checks and forwards the list of acceptable 
transporters to the U.S. Customs Service, which conducts checks at the 
U.S.-Canada border.
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    \13\ 68 FR 6083, February 6, 2003, Docket No. TSA-2003-14421.
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    This rule triggers the exception in 18 U.S.C. 845(a)(1) for aliens 
entering the United States from Canada who are transporting, shipping, 
receiving, and possessing explosives incident to and in connection with 
the commercial transportation of explosives by rail, motor carrier, or 
water. Thus, such aliens will not violate 18 U.S.C. 842(i)(5) during 
such commercial transportation.
    This rulemaking document includes this discussion of the SEA 
requirements because explosives are among the categories of substances 
that are defined as ``hazardous materials'' under FMCSA regulations at 
49 CFR 383.5.\14\ This rule is specifically crafted to invoke the 
section 845(a)(1) exception with respect to domestic transporters of 
explosives in the trucking industry. A companion rule, to be issued by 
FMCSA, will prohibit the issuance of a hazardous materials endorsement 
to an individual unless the individual has complied with TSA's security 
threat assessment regulations.
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    \14\ See also, 49 CFR 173.50, which is the definition of 
explosives, promulgated by Research and Special Programs 
Administration.
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    This rule prohibits an individual from holding a CDL with a 
hazardous materials endorsement 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 civilian or 
military court for certain felonies; (4) has been adjudicated as a 
mental defective or committed to a mental institution; or (5) is 
considered to pose a security threat based on a review of various 
databases. In addition, FMCSA's existing CDL regulations prohibit 
individuals with a CDL from operating a commercial motor vehicle if he 
or she tests positive for a controlled substance, or has adulterated or 
substituted a test specimen for controlled substances.\15\ Thus, TSA 
and FMCSA rules cover individuals convicted of serious felonies, 
aliens,\16\ individuals under felony indictment, fugitives from 
justice, individuals adjudicated as mental defectives or committed to a 
mental institution, individuals who have renounced their U.S. 
citizenship, and unlawful users or addicts of any controlled substance.
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    \15\ 49 CFR 382.215.
    \16\ TSA notes that the SEA does not prohibit lawful permanent 
residents and other narrow categories of aliens from transporting 
explosives. (18 U.S.C. 842(i)(5)). However, FMCSA's CDL regulations 
require a CDL holder to have a ``State of domicile,'' which is 
defined as ``that State where a person has his/her true, fixed, and 
permanent home and principal residence and to which he/she has the 
intention of returning whenever he/she is absent.'' (49 CFR 383.5). 
Lawful permanent residents of the U.S. are the only aliens who have 
a State of domicile under this definition. Thus, they are the only 
aliens who are permitted to have a CDL.
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    TSA has also addressed the security risk that individuals who have 
been dishonorably discharged from the armed services pose. Under the 
Uniform Code of Military Justice, a person may only be dishonorably 
discharged if convicted of certain crimes. All crimes that may result 
in a dishonorable discharge do not give rise to a security threat. 
Under articles 133 and 134 of the Uniform Code of Military Justice, an 
individual may be dishonorably discharged for ``conduct unbecoming an 
officer'' and ``disorders and neglects to the prejudice of good order 
and discipline.'' These violations may include bigamy, fraternization, 
and drunk and disorderly conduct. TSA believes that in most cases, 
these actions would not affect an individual's ability to safely and

[[Page 23855]]

securely transport explosives and hazardous materials. TSA does not 
believe it is advisable to penalize former members of the military for 
actions that would not necessarily impact a civilian CDL holder's 
ability to obtain or keep a hazardous materials endorsement. Also, it 
is important to note that an individual may be convicted of a serious 
felony and not be dishonorably discharged from military service. For 
these reasons, TSA has concluded that a careful analysis of the facts 
underlying a dishonorable discharge is necessary before concluding that 
an individual should be disqualified for reasons of transportation 
security. Therefore, TSA will review the underlying records to 
determine what action gave rise to a dishonorable discharge and take 
appropriate action. TSA will issue a notice of threat assessment for 
any individual convicted of a serious felony, at least those already 
included in the rule as a disqualifying criminal offense. For others, 
TSA will assess whether the underlying activity bears on an 
individual's ability to perform CDL responsibilities.
    Finally, TSA is using a definition of hazardous materials that 
includes explosives, which is based on DOT's definition, as required by 
the USA PATRIOT Act.\17\ A detailed discussion of the manner in which 
explosives and hazardous materials are regulated by DOT and ATF is 
necessary to understand the scope and rationale of this rule.
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    \17\ Paragraph (b) of Section 1012 describes hazardous materials 
as any material defined as a hazardous material by the Secretary of 
Transportation and any chemical or biological material or agency 
determined by the Secretary of Health and Human Services or the 
Attorney General as being a threat to the national security of the 
U.S.
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    The hazardous material regulations (HMR) are issued by the Research 
and Special Programs Administration (RSPA), an agency within DOT. Under 
the HMR, which are based on the internationally recognized United 
Nations (UN) system for classification, identification, and ranking of 
hazardous materials, all hazardous materials are divided into nine 
general classes according to their physical, chemical, and nuclear 
properties as follows:

Class 1 Explosives
Class 2 Compressed, flammable, nonflammable, and poison gases
Class 3 Flammable liquids
Class 4 Flammable solids
Class 5 Oxidizers and organic peroxides
Class 6 Toxic and infectious materials
Class 7 Radioactive materials
Class 8 Corrosive materials
Class 9 Miscellaneous dangerous substances and articles

Within Classes 1, 2, 4, 5, and 6, there are more specifically defined 
divisions, and within Class 1 there are Compatibility Group 
subdivisions, as well. The hazard classes and divisions are not 
mutually exclusive. Certain hazardous materials have multiple dangerous 
properties, each of which must be addressed according to its relative 
potential to do harm. In these cases, the UN system and the HMR allow 
identification and communication of both the primary and subsidiary 
threats.
    The HMR define a Class 1 material as any substance or article that 
is designed to function by explosion--that is, an extremely rapid 
release of gas or heat--or one that, by chemical reaction within 
itself, functions in a similar manner even if not designed to do so. 
Class 1 materials are divided into six divisions. Assignment of an 
explosive to a division depends on the degree and nature of the 
explosive hazard presented. Thus, a Division 1.1 explosive is one that 
presents a mass explosive hazard. A mass explosion is one that affects 
almost the entire load simultaneously. A Division 1.2 explosive has a 
projection hazard, which means that if the material explodes, it will 
project fragments outward at some distance. A Division 1.3 explosive 
presents a fire hazard and either a minor blast hazard or a minor 
projection hazard or both, but not a mass explosion hazard. A Division 
1.4 explosive has a minor explosion hazard that is largely confined to 
the package and does not involve projection of fragments. A Division 
1.5 explosive is a very insensitive explosive that has a mass explosion 
potential, but is so insensitive that it is unlikely to detonate under 
normal conditions of transport. A Division 1.6 explosive is an 
extremely insensitive article that does not have a mass explosion 
hazard and demonstrates a negligible probability of accidental 
initiation or propagation. Specific materials that are covered by the 
definition of Class 1 materials include such items as blasting agents, 
propellants, detonators, various types of ammunition, explosives 
charges and projectiles, ammonium nitrate-fuel oil mixtures, rockets, 
fireworks, and warheads.
    For explosives transportation, the HMR prohibit transportation of 
an explosive unless it has been tested, classed, and approved by the 
Associate Administrator for Hazardous Materials Safety, RSPA. The 
approval granted by the Associate Administrator specifies packaging and 
other transportation provisions that must be followed by the person who 
ships or transports the explosive material. In addition to packaging 
requirements, the HMR require explosives to be labeled and/or placarded 
to indicate the explosive hazard. Explosives shipments generally must 
be accompanied by shipping papers and emergency response information.
    The HMR definition for a Class 1 material is test- and performance-
based and, thus, accommodates newly developed materials and 
modifications to existing materials. Moreover, the HMR definition for a 
Class 1 material is consistent with definitions used and accepted 
internationally (i.e., the UN Recommendations for the Transport of 
Dangerous Goods, the International Civil Aviation Organization 
Technical Instructions for the Safe Transport of Dangerous Goods by 
Air, and the International Maritime Organization International Maritime 
Dangerous Goods Code), not only for transportation, but for many other 
applications, as well.
    For the most part, the HMR definition of an explosive is consistent 
with the relevant definition established by the ATF. By statute, ATF 
regulates materials that are explosives, blasting agents, and 
detonators. An ``explosive'' is ``any chemical compound mixture, or 
device, the primary or common purpose of which is to function by 
explosion; the term includes, but is not limited to, dynamite and other 
high explosives, black powder, pellet powder, initiating explosives, 
detonators, safety fuses, squibs, detonating cord, igniter cord, and 
igniters;'' a ``blasting agent'' is, in part, ``any material or 
mixture, consisting of fuel and oxidizer, intended for blasting, not 
otherwise defined as an explosive;'' and a ``detonator'' is ``any 
device containing a detonating charge that is used for initiating 
detonation in an explosive; the term includes, but is not limited to, 
electric blasting caps of instantaneous and delay types, blasting caps 
for use with safety fuses and detonating-cord delay connectors.'' ATF 
supplements these statutory definitions with a list of specific 
materials, updated periodically, that are regulated as explosives. 18 
U.S.C. 841(c)-(f). Certain statutory exemptions may apply. For example, 
certain types and quantities of black powder may be exempt from ATF 
regulation. 18 U.S.C. 845(a)(5).
    Because the various definitions used by DOT and ATF are not 
identical, some materials are treated differently by the two agencies. 
For example, ATF lists several specific materials that it regulates as 
explosives that DOT regulates as a different class of

[[Page 23856]]

hazardous materials. Further, ATF regulates all mixtures that contain 
any of the materials it lists as explosives. ATF does not define a 
lower limit at which a mixture would cease to meet the definition for 
an explosive. The DOT definition, by contrast, depends on test results 
of materials packaged for shipment to determine whether a material 
should be classed as an explosive under the HMR. Thus, if a mixture is 
tested and does not exhibit explosive properties, it would not be 
classed as an explosive under the HMR, even though the mixture might 
contain a material that, by itself, would be classed as an explosive.
    Moreover, the ATF explosives list includes dinitrophenol, 
guncotton, nitrostarch, sodium picramate, and several other materials 
that DOT regulates as a different class of hazardous materials when 
combined with water. When combined with water, these materials may not 
exhibit explosive properties and, thus, do not meet the DOT definition 
for an explosive. DOT regulates these materials, with specified 
percentages of water, as Division 4.1 (flammable solid) materials.
    ATF regulates ammonium nitrate-fuel oil mixtures and ammonium 
nitrate explosive mixtures as explosive materials. Under the HMR, 
ammonium nitrate is classed as a Division 1.1 explosive, and ammonium 
nitrate-fuel oil mixtures are classed as Division 1.5 explosives. 
However, some mixtures that include ammonium nitrate among their 
components are classed as Division 5.1 (solid oxidizer) materials 
because they require further processing before they can be used to 
produce a practical explosion. Again, the difference exists because the 
DOT classification criteria depend on testing to determine whether a 
material exhibits explosive properties; if a material is tested and 
found not to meet the DOT definition, it is not regulated as an 
explosive for purposes of the HMR.
    A major difference between the ATF and DOT requirements for 
regulating explosives is how the agencies treat military and government 
shipments. In accordance with 18 U.S.C. 845, ATF generally does not 
regulate explosives being delivered to any agency of the United States 
or any state or political subdivision thereof; or explosives 
manufactured under the regulation of the military department of the 
United States or transported on behalf of the military department of 
the United States or transported to arsenals, navy yards, depots, or 
other establishments owned by, or operated on behalf of, the United 
States. Under the HMR, by contrast, government and military shipments 
of explosives are regulated if such shipments are transported by 
commercial carriers rather than government or military personnel.
    For purposes of SEA, DOT compared the list of materials that ATF 
regulates as explosives with the definitions for different classes of 
hazardous materials regulated under the HMR and assessed the security 
risks associated with the transportation of such materials. DOT 
concluded that a mixture that does not meet the definition of a Class 1 
material under the HMR generally does not pose a sufficient security 
risk when transported in commerce to warrant detailed employee 
background checks at this time. Such mixtures may meet the definition 
of a different hazardous class, in which case they are subject to 
applicable security requirements in the regulations of RSPA, FMCSA, or 
USCG regulations, or they may not meet the definition of any hazard 
class, in which case they are not regulated as hazardous materials 
under the HMR.
    DOT further concluded that a material regulated as an explosive by 
ATF but as a different class of hazardous material under the HMR, such 
as certain wetted materials and ammonium nitrate mixtures, generally 
will be subject to applicable security requirements in HM-232 (which is 
the final rule issued by RSPA on March 25, 2003 at 65 FR 14510) or in 
TSA, FMCSA, or USCG regulations, as incorporated into the hazardous 
materials regulations in the RSPA rule that accompanies this rule. If 
required to be placarded, shipments of such materials will be subject 
to the background check requirements mandated in this rule when 
transported by motor carrier and to the security plan requirements in 
HM-232. When shipped in amounts that do not require placarding, such 
shipments do not pose a security threat when transported in commerce 
sufficient to warrant detailed employee background check requirements 
at this time.
    Generally, DOT determined that the placarding thresholds 
established in the HMR for explosives shipments represent explosives 
that pose the most significant security threat when transported in 
commerce. Explosives in the following quantities must be placarded in 
accordance with HMR requirements:

    (1) Any quantity of Division 1.1, 1.2, or 1.3 explosives;
    (2) More than 454 kg of Division 1.4, 1.5, or 1.6 explosives.

Examples of Division 1.4 explosives include toy caps, signal devices, 
flares, and distress signals. In quantities less than 454 kg, such 
explosives generally do not present a significant security threat 
involving their use during transportation for a criminal or terrorist 
act. Similarly, Division 1.5 and 1.6 explosives are sufficiently 
insensitive that, in amounts below 454 kg, they generally do not 
present a significant security threat.
    Although there are differences between the ATF and DOT definition 
of explosives, TSA and DOT believe that any gaps between the 
definitions which cover either the type of explosive or the amount of 
explosive in transportation do not give rise to security concerns that 
warrant additional regulation at this time. The security and safety 
regimes established in this rule and the FMCSA and RSPA regulatory 
programs address the transportation of explosives by persons posing a 
security threat.
    It is important to note, however, that TSA continues to analyze 
explosive, radioactive, organic, flammable, and corrosive materials, 
and medical and hazardous wastes in transportation to determine whether 
additional security procedures are necessary to protect the public, 
infrastructure and the transportation system. TSA anticipates that, 
after the completion of risk analyses, additional regulations will 
evolve that are narrowly tailored to address specific products, 
processes, and threat information, regardless of whether they must be 
placarded in transportation. In addition, TSA is considering whether a 
larger group of individuals should be required to undergo fingerprint-
based criminal history background checks and whether a different 
security check would effectively capture the individuals who are bent 
on using the transportation network to commit terrorist acts.
    Based on the foregoing, the TSA, FMCSA, and RSPA rules now regulate 
the security threat posed by the transportation of explosives by 
commercial motor vehicle incident to and in connection with the 
commercial transportation of explosives, and therefore the prohibitions 
of 18 U.S.C. 842(i) do not apply to persons while they are engaged in 
such transportation.

Summary of the Interim Final Rule

    This interim final rule implements section 1012 of the USA PATRIOT 
Act. The rule establishes security threat assessment standards for 
determining whether an individual poses a security threat warranting 
denial of a hazardous materials endorsement for a CDL. TSA will 
determine 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.

[[Page 23857]]

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 a mental defective or committed 
to a mental institution; or (5) is considered to pose a security threat 
based on a review of pertinent databases. The rule establishes 
conditions under which an individual who has been determined to be a 
security risk may appeal the determination, and procedures TSA will 
follow when considering an appeal. The rule also provides a waiver 
process for those individuals who otherwise cannot obtain a hazardous 
materials endorsement because they have a conviction for a 
disqualifying felony, or were adjudicated as a mental defective or 
committed to a mental institution.
    The primary basis for determining whether an individual has 
committed a disqualifying criminal offense is collecting fingerprints 
and submitting them to the Federal Bureau of Investigation (FBI) for a 
criminal history records check. The process of collecting, submitting, 
and analyzing fingerprints is resource intensive and complex. Under 
this rule, TSA and the States will consult closely to determine the 
most efficient and cost-effective means of collecting fingerprints 
without unduly burdening State resources. TSA must balance the critical 
need to evaluate and ensure the security of hazardous materials in 
transportation with the practical need to develop an effective, 
efficient infrastructure that will support security threat assessments, 
including collection and analysis of fingerprints, of approximately 3.5 
million commercial truck drivers in a very short time period.
    TSA will work closely with the Department of Justice (DOJ), the 
States, and the industry to develop an effective, efficient 
fingerprinting process. Generally, TSA will provide guidance on where 
individuals will report to submit fingerprints. This may include local 
law enforcement offices, State motor vehicle offices, or private 
collection companies that have been certified to capture fingerprints. 
The fee for submitting fingerprints to the FBI for a criminal history 
records check will be collected when the prints are captured and then 
forwarded to the FBI. The FBI will send the fingerprint submission 
results to TSA, and TSA will notify the appropriate State if the 
background records check does not reveal a disqualifying offense. 
However, if the search discloses an adverse report, TSA will 
investigate it to determine if the record accurately corresponds to the 
applicant, if an arrest subsequently resulted in a conviction, or any 
other problems the criminal record reveals. TSA will notify the 
individual and/or the State of the final outcome once this 
investigation is complete.
    For purposes of this rule, TSA provides cost estimates based on the 
fees that are known (such as the fee the FBI charges to process each 
set of fingerprints) and our experience with background records checks 
in the aviation sector. However, there may be challenges to completing 
this process within the cost estimates provided due to differences in 
State records, the degree to which a State has electronic records, and 
the difficulties of locating individual CDL holders. Therefore, the 
costs set out in the rule are subject to change, but most likely will 
diminish over time.
    In developing these regulations, TSA has and will continue to 
coordinate with the National Crime Prevention and Privacy Compact 
Council (Compact Council). The Compact Council was established pursuant 
to the 1998 National Crime Prevention and Privacy Compact (Compact) (42 
U.S.C. 14616). The Compact establishes legal criteria governing 
criminal history record checks for non-criminal justice purposes.
    The Compact Council is composed of 15 members, appointed by the 
Attorney General, and has the authority to promulgate rules and 
procedures governing the use of the Federal-State criminal history 
records system for noncriminal justice purposes. The Council's 
oversight seeks to ensure uniform application of the statutory 
requirements, while permitting each State to develop its own 
dissemination policy within its borders. As a general rule, the Compact 
requires the submission of fingerprints for purposes of gaining access 
to the criminal history databases for noncriminal justice purposes. Due 
to the time it will take to develop a fingerprint collection 
infrastructure for 3.5 million hazardous materials endorsement holders, 
the Compact Council has agreed that TSA may obtain criminal history 
information based on names and other biographical data, so long as 
fingerprints are subsequently gathered and submitted. TSA will report 
to the Council periodically to ensure compliance with the Compact.
    To ensure the development of an effective infrastructure for 
conducting security threat assessments, TSA solicits comments and ideas 
from the States, trucking industry associations, labor organizations, 
and other interested parties. TSA must use a system that is flexible 
enough to accommodate all of the unique characteristics of the State 
processes, and the mobile nature of the workforce, and that is cost-
effective for the drivers, employers, and governmental agencies.
    The background check process for individuals applying for or 
holding hazardous materials endorsements will proceed as follows:
    [sbull] As of 120 days following publication of the rule, any CDL 
holder who does not meet the security threat assessment standards 
prescribed in this rule is not authorized to hold or obtain a hazardous 
materials endorsement.
    [sbull] Following publication of the rule, TSA will begin to 
conduct security threat assessments on individuals who currently hold 
hazardous materials endorsements, as well as drivers applying for new 
or transfer endorsements. This assessment will make use of names and 
biographical data contained in the Commercial Drivers License 
Information System (CDLIS). Some assessments will include entering 
names in the National Crime Information Center (NCIC) database, the 
Interstate Identification Index (III), and other databases, such as 
terrorism watch lists. If the name and biographical data search 
discloses that an individual does not meet the security threat 
assessment standards, TSA will notify the individual and the State in 
which he or she holds or is applying for a hazardous materials 
endorsements. If the individual wishes to dispute the results of the 
search, he or she will submit fingerprints or court records, in a 
manner prescribed by TSA, to verify or invalidate the individual's 
identity and criminal background, and the results of the search. If the 
individual does not contest the initial result or is not able to 
correct the record, TSA will notify the State to revoke or deny the 
endorsement.
    [sbull] If the name-based background check discloses that a driver 
is the subject of an outstanding felony want or warrant, TSA will 
ensure that the appropriate law enforcement agency is notified.
    [sbull] Individuals whose name-based check indicates that they meet 
the security threat assessment standards must submit fingerprints 
between 180 days and five years from the effective date of the rule, 
when applying for a new, renewed, or transferred hazardous materials 
endorsement. A State may require fingerprint submission prior to the 
expiration of five years, or on a more frequent basis than once every 
five years.
    [sbull] Existing hazardous materials endorsement holders may be 
subject to fingerprint-based checks prior to

[[Page 23858]]

renewal of their endorsements in a manner prescribed by TSA.
    [sbull] After 180 days following the effective date of the rule, no 
State may issue, renew, or transfer a hazardous materials endorsement 
unless TSA has notified the State that the individual holding or 
applying for the endorsement does not pose a security threat.
    Each State must notify individuals holding a hazardous materials 
endorsement that he or she will be subject to a security threat 
assessment, at least 180 days before the endorsement expires. The 
notice must also inform these individuals that they may initiate the 
security threat assessment required by this rule at any time after 
receiving the notice, but no later than 90 days before the expiration 
date of the endorsement. For the first 180 days the State requirements 
of this rule are in effect, a State may extend the expiration date of a 
hazardous materials endorsement, until TSA has notified the State that 
an individual does or does not pose a security threat. TSA requests 
comments from the States and industry on the process outlined above. 
TSA understands that each State has a unique registration system in 
place, and that there may be significant challenges to collecting 
fingerprints of all CDL drivers with hazardous materials endorsements. 
TSA will continue to work closely with all affected entities to develop 
an efficient and effective system.

Section-By-Section Analysis

PART 1570--LAND TRANSPORTATION SECURITY: GENERAL RULES

Section 1570.1 Scope

    This part applies to any person engaged in activities subject to 
the requirements of this part.

Section 1570.3 Fraud and Intentional Falsification of Records

    This section prohibits persons from making, or causing to be made 
any fraudulent or intentionally false statement in any record or report 
that is kept, made, or used to show compliance with this subchapter, or 
exercise any privileges under this subchapter. Also, this section 
prohibits any reproduction or alteration, for fraudulent purpose, of 
any record, report, security program, access media, or identification 
media issued under this subchapter or pursuant to standards in this 
subchapter.
    TSA is adding these prohibitions to prevent persons from providing 
false information on the application for any authorization for which 
TSA conducts a security threat assessment, including a hazardous 
materials endorsement for a CDL. This section is consistent with the 
prohibition on fraud and intentional falsification in aviation 
security.\18\
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    \18\ 49 CFR 1540.103
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PART 1572--CREDENTIALING AND BACKGROUND CHECKS FOR LAND TRANSPORTATION 
SECURITY

Subpart A--Requirements to Undergo Security Threat Assessments

Section 1572.3 Terms Used in This Part

    This section provides definitions for several terms used in Part 
1572. These definitions are relevant only to requirements in this part.
    ``Alien'' means a person not a citizen of the U.S. This definition 
is consistent with the definition of that term provided in the USA 
PATRIOT Act, which defines ``alien'' by referring to the definition 
given that term 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 U.S.\19\
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    \19\ 8 U.S.C. 1101(a). Nationals may not obtain a hazardous 
materials endorsement under FMCSA rules.
---------------------------------------------------------------------------

    ``Alien registration number'' means the number issued by the DHS to 
an individual when he or she becomes a lawful permanent resident.
    The terms ``commercial drivers license,'' ``endorsement,'' and 
``hazardous materials'' are used as defined in FMCSA's regulations at 
49 CFR 383.5
    A ``hazardous material'' is defined in FMCSA's rule as 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 
CDC in 42 CFR part 73.
    DOT evaluates materials to determine whether their respective 
characteristics, properties, and quantities in transportation merit 
special marking, storage, and handling procedures. 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). Therefore, 
for purposes of this rule, DOT and TSA believe it is the appropriate 
standard to apply. This rule should apply only to the hazardous 
materials endorsements that are referenced in the FMCSA and RSPA 
regulations.
    ``Convicted'' means any plea of guilty or nolo contendere, or any 
finding of guilt. Because this rule must be consistent nationally, TSA 
will apply Federal law to determine whether a conviction has occurred 
and whether post-conviction remedies should be recognized, as TSA 
currently does in aviation. Also, it is important to note that for 
purposes of this rule, a conviction occurs when an individual is 
convicted of a criminal offense, receives probation, completes the 
probated sentence, and the individual is then discharged from probation 
unless the discharge is accompanied by an expungement of the underlying 
conviction that does not place any restriction on the individual. In 
most States, completion of probation does not nullify the existence of 
the underlying conviction.
    ``Final Notification of Threat Assessment'' means a final 
determination that an individual does not meet the standards required 
to hold or obtain a hazardous materials endorsement. A Final 
Notification may not be administratively appealed.
    ``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.
    ``Initial Notification 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 Notification may be administratively appealed.
    ``Lawful permanent resident'' means an individual who has been 
lawfully admitted for permanent residence to 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.''
    ``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

[[Page 23859]]

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.
    ``Notification of No Security Threat'' is an administrative 
determination by TSA that an individual does not pose a security threat 
that merits denial of the authorization to transport hazardous 
materials.
    ``Severe 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 MTSA (46 U.S.C. 
70101).
    ``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.

Section 1572.5 Security Threat Assessment for Commercial Drivers 
Licenses with a Hazardous Materials Endorsement

    This section applies to State agencies responsible for issuing a 
hazardous materials endorsement for a CDL, and applicants for such 
endorsements. However, note that under FMCSA regulations (49 CFR 
383.3(c)), individuals who operate commercial motor vehicles for 
military purposes (essentially uniformed members of the U.S. military) 
are exempt from CDL requirements. This rule does not apply to 
individuals exempt under 49 CFR 383.3(c).
    Paragraph (b) states that within 120 days of the effective date of 
the rule, any CDL holder who does not meet the standards listed in this 
paragraph is not authorized to transport hazardous materials.
    This section requires holders of a hazardous materials endorsement 
to relinquish the endorsement if he or she does not meet the standards 
set forth in Sec.  1572.5(d). Also, this section requires the 
individual in possession of a hazardous materials endorsement, who is 
prohibited from holding the endorsement as a result of the requirements 
of paragraph (b), to surrender the endorsement to the issuing State 
\20\. Both of these requirements become enforceable as of 120 days from 
the effective date of the rule. TSA will begin to do security threat 
assessments on hazardous material drivers shortly after this rule is 
published. However, the rule places a self-disclosure requirement on 
affected drivers, regardless of when TSA has completed an assessment on 
each driver. In addition, each individual with a hazardous materials 
endorsement has an ongoing responsibility to report if he or she is 
convicted of, wanted or under indictment in any jurisdiction for, or 
found not guilty by reason of insanity of, a disqualifying criminal 
offense to the issuing State entity, within 24 hours of the conviction, 
indictment, or finding. An individual with a hazardous materials 
endorsement also has an ongoing responsibility to report to the issuing 
State entity if he or she is adjudicated as a mental defective or 
committed to a mental institution, within 24 hours of the adjudication 
or commitment. Finally, an individual has an ongoing responsibility to 
report to the issuing State entity if he or she renounces his or her 
U.S. citizenship. The driver must surrender the hazardous materials 
endorsement to the issuing State within 24 hours of the conviction, 
finding, adjudication, commitment, or renunciation.
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    \20\ It is important to note that section 1012 of the USA 
PATRIOT Act authorizes TSA to impose requirements on State CDL 
programs, but not individual CDL holders. However, TSA has authority 
to impose requirements on transportation workers, including threat 
assessments and fingerprint-based background checks under ATSA. See 
49 U.S.C. 114(f).
---------------------------------------------------------------------------

    It is important to note here that any individual, other than an 
individual who does not meet the standards for a security threat 
assessment under Sec. Sec.  1572.105 (Citizenship status) and 1572.107 
(Other analyses) may apply for a waiver of these standards in order to 
obtain or hold a hazardous materials endorsement. Section 1572.143 of 
the rule describes the process and criteria for obtaining a waiver and 
is discussed in greater detail below. However, there is no restriction 
on when an individual may submit a waiver request. Therefore, upon 
publication of this rule, an individual with a disqualifying criminal 
offense or who was previously adjudicated as a mental defective or 
committed to a mental institution may apply for a waiver within the 
120-day period set in paragraph (b). If TSA grants the waiver, the 
individual may continue to lawfully hold the hazardous materials 
endorsement, and, at the expiration of the 120 days following 
publication of the rule, would not be required to surrender the 
endorsement.
    As noted above, TSA will begin conducting name checks on hazardous 
materials endorsement holders upon the effective date of the rule. If a 
name check of an individual indicates that he or she does not meet the 
security threat assessment standards, TSA will inform the State that 
issued the endorsement, and the State will be required to revoke the 
endorsement. Paragraph (b)(2) states that, for the first 180 days the 
rule is in effect, the individual may submit fingerprints to TSA, in a 
form and manner specified by TSA, when a State revokes his or her 
hazardous materials endorsement in response to a TSA notification that 
the individual poses a security threat. TSA will use the individual's 
fingerprints to conduct additional checks and determine if the 
notification was made in error.
    After 180 days, each individual must submit fingerprints in a form 
and manner specified by TSA when applying to a State to issue, 
renew,\21\ or transfer a hazardous materials endorsement for a CDL; and 
at other times as specified by TSA. A State may require an applicant or 
a holder of a hazardous materials endorsement to submit fingerprints 
more frequently than once every five years. When submitting 
fingerprints under this section, the individual or his or her employer 
will be responsible for any fee that may be charged by the persons or 
entities collecting and processing the fingerprints. These 
fingerprinting fees will be collected when the fingerprint is captured. 
There are additional fees associated with accessing criminal and other 
pertinent databases over which TSA has no control. TSA will issue 
guidance to all affected individuals explaining the pertinent fee and 
process to forward it to the appropriate party after consulting with 
the States and other Federal agencies involved.
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    \21\ Until now, each State has determined the interval, if any, 
for renewing a hazardous materials endorsement. The companion rule 
that FMCSA is publishing requires States to adopt a renewal term of 
not more than 5 years for all hazardous materials endorsements.
---------------------------------------------------------------------------

    Paragraph (c) of this section provides that, for the first 180 days 
after the effective date of the rule, each State must revoke an 
individual's hazardous materials endorsement if TSA informs the State 
that the individual does not meet the security threat assessment 
standards. If TSA makes such a notification, the agency will also 
notify the individual. The individual then may submit his or her 
fingerprints if he or she believes the determination was made in error. 
TSA will use the fingerprints to conduct additional checks.
    After 180 days following the effective date of the rule, no State 
may renew, issue, or transfer a hazardous materials endorsement unless 
TSA has notified the State that the individual does not pose a security 
threat. The State must notify each affected individual that he or she 
will be subject to a background

[[Page 23860]]

check in order to renew a hazardous materials endorsement, at least 180 
days prior to the expiration of the endorsement. Also, the State must 
inform the individual that he or she may initiate the security 
assessment at any time, but no later than 90 days before the expiration 
date. TSA will put forth every effort to prevent any CDL holder from 
losing a hazardous materials endorsement as a result of insufficient 
time to complete the background check. As long as the drivers complete 
the application and submit fingerprints at least 90 days prior to the 
expiration of his or her endorsement, TSA and the State should be able 
to complete the review process and renew the endorsement, where 
appropriate.
    Paragraph (c)(3) provides that between six and 12 months after the 
effective date of the rule, if TSA is conducting a security threat 
assessment on an individual applying to renew a hazardous materials 
endorsement, the State may extend the expiration of a hazardous 
materials endorsement until TSA informs the State of TSA's final 
determination that the individual does not pose a security threat. If 
the individual is applying for a new endorsement, the State may not 
issue the endorsement until TSA determines the individual does not pose 
a security threat. This time period is necessary to ensure that TSA 
will have sufficient time to perform the security threat assessment.
    Paragraph (d) of Sec.  1572.5 establishes the standards TSA applies 
to determine whether an individual poses a security threat that 
warrants denial of a hazardous materials endorsement. The individual 
does not pose a security threat if he or she meets the citizenship 
requirements set forth in Sec.  1572.105; does not have a disqualifying 
criminal offense described in Sec.  1572.103; has not been adjudicated 
as a mental defective as prescribed in section Sec.  1572.109; and 
after an analysis of other databases described in Sec.  1572.107, TSA 
determines that the individual does not pose a security threat. This 
paragraph also states that the security threat assessment will be based 
on a combination of the individual's fingerprints, name, and other 
identifying information.
    Paragraph 1572.5(d)(3) states that TSA will not issue a 
Notification of No Security Threat and will notify the FMCSA and the 
pertinent State if an applicant's criminal history records indicate a 
violation of 49 CFR 383.51. Section 383.51 of the FMCSA regulations 
prohibit an individual from driving a commercial motor vehicle for 
prescribed time periods for offenses such as driving under the 
influence, leaving the scene of an accident, and a felony involving the 
use of a commercial vehicle. This information is pertinent to whether 
an individual is fit to hold or obtain a hazardous materials 
endorsement, and should be shared with the State and FMCSA.
    Paragraph (d)(4) provides that TSA may, under certain 
circumstances, direct a State to immediately revoke an individual's 
hazardous materials endorsement. If TSA determines that, in conducting 
the security threat assessment, it is necessary to immediately revoke 
the individual's hazardous materials endorsement, TSA and the State 
must have the authority to remove the individual from hazardous 
materials service. This scenario will not occur frequently, and only 
where sufficient legal and factual grounds exist that warrant immediate 
action. The individual may appeal the revocation following surrender of 
the endorsement, pursuant to the procedures set forth in Sec.  
1572.141(i).
    Paragraph 1572.5(e) specifies the information each State 
application must request, and each applicant must complete when 
applying for a new, renewal, or transfer hazardous materials 
endorsement.\22\ This information includes the individual's name; 
current residential address, and all other residential addresses from 
the previous seven years; date of birth; social security number, or 
alien registration number, if the applicant is an alien; gender; city 
of birth, State and country of birth; and citizenship. This information 
will be used to verify the individual's identity and determine whether 
they meet the security threat assessment standards.
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    \22\ TSA notes that ``issuing'' a hazardous materials 
endorsement includes instances in which a State upgrades a current 
CDL to include a hazardous materials endorsement.
---------------------------------------------------------------------------

    Other information provided in the application process includes: (1) 
A list of disqualifying crimes specified in 49 CFR 1572.103; (2) a 
certification that the applicant does not have a disqualifying criminal 
offense, as described in 49 CFR 1572.103; (3) a certification that the 
individual has not been adjudicated to have a mental defect or 
committed to a mental institution; (4) a statement informing the 
applicant that Federal regulations impose a continuing obligation on 
the applicant to disclose to the State if the applicant has committed a 
disqualifying criminal offense while he or she has a hazardous 
materials endorsement; (5) a statement concerning any military service 
the applicant may have completed and the kind of discharge he or she 
received; (6) statements required by the Privacy Act regarding the 
authority for collecting information from the individual, the purpose 
of collecting the information, and routine uses of the information; and 
(7) a statement that the information provided by the applicant is true, 
complete, and correct, and that the applicant understands that a 
knowing and willful false statement can be punished by fine or 
imprisonment, or both, and may be grounds for denial of a hazardous 
materials endorsement. The State also must advise the individual that 
TSA will provide a copy of the individual's criminal history record to 
him or her, if he or she requests the record in writing. The applicant 
must sign and date the application.
    Paragraph (f) of this section states that if the criminal history 
records check discloses an arrest for a disqualifying crime listed in 
Sec.  1572.103, but does not indicate a disposition, TSA follows the 
resolution procedures set forth in Sec.  1572.103, which are discussed 
further below.
    Paragraph (g) of this section describes when TSA must provide 
notification of the determination concerning the security threat 
assessment. Paragraph (g)(2) states that TSA will notify the individual 
that TSA has made an initial determination that the individual poses a 
security threat. The individual may appeal this initial determination, 
pursuant to the procedures listed in Sec.  1572.141, or request a 
waiver, pursuant to the procedures listed in Sec.  1572.143. Following 
resolution of any appeal or waiver, TSA will issue either a final 
notification of threat assessment or a determination that the 
individual does not pose a security threat. This final determination is 
not subject to appeal. However, a person may apply for a waiver 
following issuance of the final determination under paragraph (g)(4).
    Paragraph (g)(5) describes the State notification requirements. 
Within 15 days of the receipt of the Notification of No Security 
Threat, Final Notification of Threat Assessment, or grant of a waiver, 
the State must: (1) Update the individual's permanent record with the 
results of the threat assessment, issuance or denial of the 
endorsement, and the expiration date of the endorsement, if one is 
issued; (2) notify the Commercial Drivers License Information System 
operator of the results; and (3) revoke or deny the individual's 
hazardous materials endorsement, if TSA serves the State with a Final 
Notification of Threat Assessment; or (4) grant or renew the 
individual's hazardous materials endorsement, if TSA serves the State

[[Page 23861]]

with a Notification of No Security Threat or grant of a waiver, and the 
individual is otherwise qualified. TSA does not require the State to 
take a specific action if TSA serves an Initial Notification of Threat 
Assessment for an applicant or holder of a hazardous materials 
endorsement in the State. TSA is aware that a background records check 
may incorrectly identify an individual as a convicted felon, or within 
another prohibited category. Individuals are able to correct inaccurate 
records and receive clearance to obtain or renew a hazardous materials 
endorsement. For this reason, TSA does not wish to require revocation 
of the hazardous materials endorsement based on an initial review, but 
believes the State should be aware that the individual may be within a 
prohibited category under this rule. The State may take whatever action 
it deems appropriate or do nothing unless and until TSA has issued its 
final determination.

Subpart B--Standards, Appeals, and Waivers for Security Threat 
Assessments

Section 1572.101 Scope and Definitions

    This subpart applies to individuals who have or are applying for a 
hazardous materials endorsement for a CDL.
    The terms below have the following definitions in this subpart.
    ``Associate Administrator/Chief Operating Officer'' means the 
Associate Administrator who is also the Chief Operating Officer of TSA, 
or his or her designee.
    ``Authorization'' means any credential or endorsement for which TSA 
conducts a security threat assessment under this part, including a 
hazardous materials endorsement for a CDL.
    ``Date of service'' has the same meaning as the definition of that 
term in the Rules of Practice in Transportation Security Administration 
Civil Penalty Actions and TSA's Investigative and Enforcement 
Procedures.\23\ TSA notes that, while Sec.  1503.211(e) of the Rules of 
Practice also provides for additional time for a party to act after 
service by mail, this rule incorporates additional time in the stated 
timeframes, and no additional time will be added for that purpose under 
this rule. The rule also provides that the date of service for an 
electronic-mail is the date in the electronic-mail indicating when it 
was sent.
---------------------------------------------------------------------------

    \23\ See 49 CFR 1503.211(d).
---------------------------------------------------------------------------

    ``Day'' means calendar day.

Section 1572.103 Disqualifying Criminal Offenses

    Congress did not specify in the USA PATRIOT Act which criminal 
offenses TSA should use to determine whether a person poses a security 
risk warranting denial of a hazardous materials endorsement. 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.
    This rule includes only felonies, which constitute the most serious 
crimes. The list of disqualifying crimes address the use of weapons of 
mass destruction, financial assistance to terrorists, and general acts 
of terrorism, which are codified in 18 U.S.C. Chapter 113B. In 
addition, the list includes sedition, kidnapping, identity-fraud, 
improper shipment of a hazardous material; immigration violations, and 
a crime involving a severe transportation security incident, such as 
air piracy or train wrecking.
    The list also includes crimes that demonstrate the individual is 
willing to commit violent acts against others for personal reasons, 
such as murder and robbery. TSA's standards are designed to prevent 
persons from committing violence against others in transportation. That 
an individual has committed criminal violence in the past is 
inconsistent with the need to ensure that drivers of hazardous 
materials will not misuse the materials. The list also includes crimes 
related to transporting or transferring items in an illegal manner, or 
with others to commit criminal acts. 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. A crime 
involving a severe transportation security incident could include such 
things as aircraft piracy, or acts of violence against trains or other 
transportation systems.
    The listed offenses are considered grounds for disqualification 
whether they were prosecuted by civilian or military authorities. If 
these individuals have been convicted within the preceding seven years, 
or incarcerated within the preceding five years, of a criminal offense 
listed in Sec.  1572.103, they are disqualified.
    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 Sec.  1572.107, TSA may consider other 
criminal offenses and information not listed in section 1572.103, if 
they indicate the individual poses a security threat. On the other 
hand, even if an individual has a disqualifying criminal offense, but 
believes that under their particular circumstances they should not be 
considered to pose a security threat, they may request a waiver under 
Sec.  1572.143.
    Under paragraph (d) of this section, certain listed disqualifying 
criminal offenses will not be subject to the seven and five year look 
back periods. These offenses are the terrorism crimes listed in 18 
U.S.C. Chapter 113 B; espionage; sedition; treason; arson; improper 
transportation of a hazardous material; unlawful possession use, sale, 
distribution, or manufacture of an explosive; crimes involving a severe 
transportation security incident; and conspiracies or attempts to 
commit these crimes, where applicable. TSA believes that an individual 
who has one of these disqualifying criminal offenses poses an ongoing 
security threat, and should not be allowed to transport hazardous 
materials.
    TSA invites comment from all interested parties concerning this 
list of disqualifying criminal offenses. TSA must balance its 
responsibility to ensure the security of hazardous materials 
transportation against the knowledge that individuals may participate 
in criminal acts and subsequently become valuable members of the 
workforce. TSA wishes to minimize the adverse impact this rule may have 
on individuals who have committed criminal offenses and served their 
sentences, without compromising the security of hazardous materials in 
transportation. For this reason, TSA has determined that only crimes 
committed in the seven years prior to issuance or renewal of the 
hazardous materials endorsement and incarcerations that ended five 
years prior to issuance or renewal should disqualify an individual. 
This is consistent with the requirements in MTSA.
    Under paragraph (c), TSA will notify an individual when his or her 
CHRC discloses an arrest for any disqualifying crime without indicating 
a disposition. The individual then must provide TSA with written proof 
that the arrest did not result in a disqualifying criminal offense 
within 30 days after the date TSA notifies the individual. If TSA does 
not receive such proof in 30 days, TSA may serve the individual with an 
Initial Notification of Threat Assessment.

[[Page 23862]]

Section 1572.105 Citizenship Status

    The USA PATRIOT Act and SEA require a check of the relevant 
databases to determine the status of aliens under U.S. immigration 
laws. This rule requires an individual applying for a hazardous 
materials endorsement to be either a U.S. citizen or a lawful permanent 
resident of the U.S. As noted above, the SEA does not prohibit lawful 
permanent residents and other narrow categories of aliens from 
transporting explosives.\24\ However, FMCSA's CDL regulations require a 
CDL holder to have a ``State of domicile,'' which is defined as ``that 
State where a person has his/her true, fixed, and permanent home and 
principal residence and to which he/she has the intention of returning 
whenever he/she is absent.''\25\ Lawful permanent residents of the U.S. 
are the only aliens who have a State of domicile under this definition. 
Thus, they are the only aliens who are permitted to have a CDL. In the 
case of an individual who is a lawful permanent resident, TSA will 
check relevant databases to determine the status of the individual 
under the immigration laws of the U.S.
---------------------------------------------------------------------------

    \24\ 18 U.S.C. 842(i)(5).
    \25\ 49 CFR 383.5.
---------------------------------------------------------------------------

    To determine an individual's citizenship status, TSA may check the 
relevant immigration databases, and may perform other checks, including 
verifying the validity of the individual's Social Security Number. We 
note that Sec.  383.71(a)(9) of the companion FMCSA rule requires 
drivers to provide proof of citizenship or alien status when applying 
for a hazardous materials endorsement.

Section 1572.107 Other Analyses

    The USA PATRIOT Act also requires that background checks under 
section 1012 include a check of relevant international databases 
through Interpol-U.S. National Central Bureau, or other appropriate 
means. Therefore, TSA will check these international databases when 
appropriate. In addition, TSA will check other databases that include 
information on terrorists, fugitives from justice, renunciants, and 
individuals who have been declared mental defectives, and, where 
appropriate, may also check databases that assist in confirming an 
individual's identity. This rule provides that TSA will check the 
following databases, and conduct a security threat analysis, before 
determining that an individual does not pose a security threat: (1) 
Interpol and other international databases; (2) watchlists; and (3) 
other databases relevant to determining whether an individual poses a 
security threat or that confirm an individual's identity. TSA is not 
initiating any independent investigation of a CDL holder's activities 
and affiliations and has no plans to engage in such reviews.

Section 1572.109 Mental Defects

    The SEA prohibits individuals who have been adjudicated as having a 
mental defect from transporting explosives. This rule implements that 
portion of the SEA, by determining that any person who has been 
determined to be a mental defective does not meet the standards for a 
security threat assessment. This section adopts terms and standards 
concerning individuals with mental disabilities that ATF promulgated to 
implement the Brady Handgun Violence Prevention Act.\26\ In the notice 
proposing these standards, ATF stated:
---------------------------------------------------------------------------

    \26\ Pub. L. 103-159, November 30, 1993, 107 Stat. 1536, 
amending the Gun Control Act of 1968. See 27 CFR 478.11.

    The legislative history of the GCA [Gun Control Act of 1968] 
makes it clear that a formal adjudication or commitment by a court, 
board, commission or similar legal authority is necessary before 
firearms disabilities are incurred. H.R. Rep. 1956, 90th Cong., 2d 
Sess. 30 (1968). The plain language of the statute makes it clear 
that a formal commitment, for any reason, e.g., drug use, gives rise 
to firearms disabilities. However, the mere presence of a person in 
a mental institution for observation or a voluntary commitment to a 
mental hospital does not result in firearms disabilities.\27\
---------------------------------------------------------------------------

    \27\ 61 FR 47095, September 6, 1996.

    ATF also cited several cases in which courts held that the GCA was 
designed to prohibit the receipt and possession of firearms by 
individuals who are potentially dangerous, including individuals who 
are mentally incompetent or afflicted with a mental illness, and 
individuals found not guilty by reason of insanity in a criminal 
case.\28\ Finally, ATF added to the definition of ``adjudicated as 
mental defective'' an element from the Department of Veterans Affairs 
definition of ``mental incompetent''--an individual who because of 
injury or disease lacks the mental capacity to contract or manage his 
or her own affairs.\29\
---------------------------------------------------------------------------

    \28\ Id.
    \29\ Id.
---------------------------------------------------------------------------

    An individual has a mental defect, for purposes of this rule, if he 
or she has been committed to a mental institution or has been 
adjudicated as a mental defective. An individual is adjudicated as a 
mental defective if a court or other appropriate authority determines 
that the individual is a danger to him or herself, or lacks the mental 
capacity to manage his or her affairs. An individual is ``committed to 
an institution'' if formally committed by a court; this term does not 
refer to voluntary admissions to a mental institution or hospital.

Section 1572.141 Notification of Threat Assessment and Appeal

    In this rule TSA is establishing an appeals process for individuals 
found to be ineligible for an authorization. This section provides that 
if, after conducting the security threat assessment, TSA determines 
that an individual poses a security threat warranting denial of the 
hazardous materials endorsement, TSA will provide the individual an 
Initial Notification of Threat Assessment. The Initial Notification 
will include: (1) A statement that TSA has determined that the 
individual poses a security threat, (2) the bases for the 
determination, and (3) information about the process for appealing the 
determination.
    TSA will provide an individual, upon request, an opportunity for 
the Associate Administrator/Chief Operating Officer of TSA, or his or 
her designee, to review the bases of an Initial Notification of Threat 
Assessment. This review is initiated through the individual appealing 
the Initial Notification.
    As set forth in paragraph (c), an individual may appeal an Initial 
Notification only if he or she asserts that he or she satisfies the 
standards for the security threat assessment. For example, if the 
Initial Notification was based on a conviction for a disqualifying 
crime, the individual may provide TSA with evidence that the conviction 
was pardoned, expunged, or overturned on appeal. Evidence of such 
actions may nullify a conviction for a disqualifying crime, but only if 
no restrictions are imposed on the individual based on the underlying 
conviction. If, for example, an individual received an executive pardon 
for a conviction for a disqualifying crime, but the pardon prohibits 
the individual from possessing a firearm, or imposes any other 
restrictions, the pardon will not nullify the conviction.
    Pursuant to paragraph (d), an individual may initiate an appeal by 
providing TSA with a written request for the releasable materials upon 
which the Initial Notification was based, or by serving TSA with his or 
her written reply to the Initial Notification.
    If an individual wishes to receive copies of the releasable 
material upon which the Initial Notification was based, he or she must 
serve TSA with a written request not later than 15 days after the date 
of service of the Initial Notification.

[[Page 23863]]

TSA will respond to this request not later than 30 days after TSA is 
served with the individual's request. TSA will not provide any 
classified information, as defined in Executive Order 12968, or any 
other information or material protected from disclosure by law, in its 
response.
    If an individual wishes to reply to the Initial Notification, he or 
she must provide TSA with a written reply not later than 15 days after 
the date of service of the Initial Notification or the date of service 
of TSA's response to the individual's request for materials, if the 
individual made such a request. In an individual's reply, TSA will 
consider only material that is relevant to whether the individual 
satisfies the standards for the security threat assessment.
    Under paragraph (d)(3) of this section, an individual has the 
opportunity to correct his or her criminal history record. If an 
individual's record discloses disqualifying information, TSA will 
notify the individual of the adverse information and provide a copy of 
the record, if requested. If the individual wishes to correct the 
inaccurate information, he or she must provide written proof that the 
arrest did not result in a disqualifying criminal offense. The 
individual may contact the local jurisdiction responsible for the 
information, the FBI, or any other relevant agency to complete or 
correct the information contained in his or her record. The individual 
must provide TSA with the revised FBI or other agency record, or a 
certified true copy of the information from the appropriate court, 
before TSA determines that the individual satisfies the standards for 
the security threat assessment.
    In considering an appeal, the TSA Associate Administrator/Chief 
Operating Officer reviews the Initial Notification, the materials upon 
which the Initial Notification was based, the individual's reply, and 
any other materials or information available to TSA. The Associate 
Administrator/Chief Operating Officer may affirm the Initial 
Notification by concluding that an individual poses a security threat. 
In this case, as set forth in paragraph (e), TSA will serve upon the 
individual a Final Notification of Threat Assessment. The Final 
Notification includes a statement that the Associate Administrator/
Chief Operating Officer has reviewed the Initial Notification, the 
materials upon which the Initial Notification was based, the 
individual's reply, if any, and any other materials or information 
available to him and has determined that the individual poses a 
security threat. There is no administrative appeal of the Associate 
Administrator/Chief Operating Officer's decision. However, as explained 
below, the individual may apply for a waiver. For purposes of judicial 
review, the Final Notification of Threat Assessment constitutes a final 
TSA order.
    Paragraph (e)(3) sets forth the procedures TSA will follow if, upon 
review, the Associate Administrator/Chief Operating Officer does not 
determine that the individual poses a security threat. TSA serves a 
Withdrawal of the Initial Notification on the individual and provides a 
notice approving the hazardous materials endorsement to the State in 
which the individual applied for the endorsement.
    If the applicant does not initiate an appeal or waiver request 
within 30 days of service of the Initial Notification, TSA issues a 
Final Notification of Threat Assessment. Unless the individual applies 
for and obtains a waiver, issuance of the Final Notification results in 
the revocation or denial of the individual's hazardous materials 
endorsement.
    If TSA did not serve the individual with an Initial Notification of 
Threat Assessment, or grants a waiver, the agency will transmit a 
Notification of No Security Threat to the individual and the State in 
which the individual applied for the endorsement.
    Under the rule, TSA has the discretion to extend due dates both for 
an individual and for the agency. An individual must provide, in 
writing, a statement of good cause for extending the due date, at least 
two days prior to the due date to be extended. TSA anticipates that if 
an individual is attempting to correct erroneous records or gathering 
documents in support of a waiver request, the individual may need 
additional time because other entities do not produce the documents 
quickly. So long as the applicant provides an explanation of such 
problems, TSA will extend the time needed to complete the process.
    Paragraph (i) of this section describes the procedure for appealing 
an immediate revocation of the hazardous materials endorsement. This 
may occur under rare circumstances where TSA determines during the 
course of conducting a security threat assessment, that sufficient 
factual and legal grounds exist to warrant immediate revocation. Under 
these circumstances, the individual must surrender the endorsement and 
cease transporting hazardous materials. TSA understands that removing 
the individual from service without an opportunity to correct the 
record may have adverse consequences, but TSA anticipates that this 
mechanism will not be used often. The individual may appeal this 
decision within 10 days, and must include all supporting documentation 
when he or she submits the appeal. TSA will provide a determination on 
the appeal within 10 days.
    The rule provides that in connection with this subpart, TSA does 
not disclose to the individual classified information, as defined in 
Executive Order 12968 section 1.1(d), and TSA reserves the right not to 
disclose any other information or material not warranting disclosure or 
protected from disclosure under law, such as Sensitive Security 
Information (SSI); sensitive law enforcement and intelligence 
information; sources, methods, means, and application of intelligence 
techniques; and identities of confidential informants, undercover 
operatives, and material witnesses.
    For determinations under Sec.  1572.107, the determination that an 
individual poses a security threat will be based, in large part or 
exclusively, on classified national security information, unclassified 
information designated as SSI, or other information that is protected 
from disclosure by law.
    Classified national security information is information that the 
President or another authorized Federal official has determined, 
pursuant to Executive Order 12958, must be protected against 
unauthorized disclosure in order to safeguard the security of American 
citizens, the country's democratic institutions, and America's 
participation within the community of nations.\30\ Executive Order 
12968 prohibits Federal employees from disclosing classified 
information to individuals who have not been cleared to have access to 
such information under the requirements of that Executive Order.\31\ If 
the Assistant Administrator has determined that an individual who is 
the subject of a threat assessment proceeding poses a threat to 
transportation security, that individual will not be able to obtain a 
clearance to have access to classified national security information, 
and TSA has no authority to release such information to that 
individual.
---------------------------------------------------------------------------

    \30\ See E.O. 12958, 60 FR 19825, April 20, 1995.
    \31\ See E.O. 12968 sec. 3.2(a), 6.2(a)(1), 60 FR 40245, Aug. 7, 
1995.
---------------------------------------------------------------------------

    The denial of access to classified information under these 
circumstances is consistent with the treatment of classified 
information under the Freedom of Information Act (FOIA), which 
specifically exempts such information from the general requirement 
under FOIA that all

[[Page 23864]]

government documents are subject to public disclosure.\32\
---------------------------------------------------------------------------

    \32\ See 5 U.S.C. 552 (b)(1).
---------------------------------------------------------------------------

    SSI is unclassified information that is subject to disclosure 
limitations under statute and TSA regulations.\33\ Under 49 U.S.C. 
114(s), the Administrator of TSA may designate categories of 
information as SSI if release of the information would be detrimental 
to the security of transportation. The SSI designation allows TSA to 
limit disclosure of this information to people with a need to know in 
order to carry out regulatory security duties.\34\
---------------------------------------------------------------------------

    \33\ See 49 U.S.C. 114(s); 49 CFR part 1520.
    \34\ See 49 CFR 1520.5(b).
---------------------------------------------------------------------------

    Among the categories of information that the Administrator has 
defined as SSI by regulation is information concerning threats against 
transportation.\35\ Thus, information that TSA obtains indicating that 
an individual poses a security threat, including the source of such 
information and the methods through which the information was obtained, 
will commonly be SSI or classified information. The purpose of 
designating such information as SSI is to ensure that those who seek to 
do harm to the transportation system and their associates and 
supporters do not obtain access to information that will enable them to 
evade the government's efforts to detect and prevent their activities. 
Disclosure of this information, especially to an individual 
specifically suspected of posing a threat to the transportation system, 
is precisely the type of harm that Congress sought to avoid by 
authorizing the Administrator to define and protect SSI.
---------------------------------------------------------------------------

    \35\ See 49 CFR 1520.7(i).
---------------------------------------------------------------------------

    Other types of information also are protected from disclosure by 
law due to their sensitivity in law enforcement and intelligence. In 
some instances, the release of information about a particular 
individual or his supporters or associates could have a substantial 
adverse impact on security matters. The release of the identities or 
other information regarding individuals related to a security threat 
determination by TSA could jeopardize sources and methods of the 
intelligence community, the identities of confidential sources, and 
techniques and procedures for law enforcement investigations or 
prosecution.\36\ Release of such information also could have a 
substantial adverse impact on ongoing investigations being conducted by 
Federal law enforcement agencies, possibly giving a terrorist 
organization or other group a roadmap of the course and progress of an 
investigation. In certain instances, release of information could alert 
a terrorist's co-conspirators to the extent of the Federal 
investigation and the imminence of their own detection, thus provoking 
flight.
---------------------------------------------------------------------------

    \36\ See 5 U.S.C. 552(b)(7)(D), (E).
---------------------------------------------------------------------------

    For the reasons discussed above, TSA does not intend to provide any 
classified information to the individual, and TSA reserves the right to 
withhold SSI or other sensitive material protected from disclosure 
under law. As noted above, TSA expects that information will be 
withheld only for determinations based on Sec.  1572.107, which involve 
watchlists and other databases. When the determination is based on the 
individual's criminal history or alien status, TSA expects that the 
supporting records most likely will be disclosed to the individual upon 
a written request to TSA.

Section 1572.143 Waivers

    Certain individuals may request a waiver, which permits the 
individual to hold or obtain a hazardous materials endorsement even if 
he or she does not meet the standards for the authorization. For 
instance, TSA believes that individuals who have committed a 
disqualifying crime may be rehabilitated to the point that they may be 
trusted in potentially dangerous jobs, such as the transportation of 
hazardous materials. The rule provides criteria that TSA will consider 
if the individual does not meet the criminal history standards. TSA 
believes that these factors are good indicators that an individual may 
be rehabilitated to the point that a waiver is advisable. The factors 
are: (1) The circumstances of the disqualifying act or offense; (2) 
restitution made by the individual; (3) Federal or State mitigation 
remedies; and (4) other factors TSA believes bear on the individual's 
potential security threat. These factors are set forth in the MTSA, at 
46 U.S.C. 70105(c)(2).
    TSA is developing internal criteria that will be used to determine 
whether a waiver should be granted to ensure uniform application of the 
waiver process. For instance, TSA may grant waivers to individuals who 
have been adjudicated as a mental defective or committed to a mental 
institution, as specified in Sec.  1572.109. A basis for a waiver may 
include a requirement that a court, board, commission, or other lawful 
authority has determined that the individual is no longer a danger to 
him-or herself or others, or is capable of managing his or her own 
affairs. TSA requests comment on the appropriate criteria the agency 
should consider when determining whether to grant a waiver to these 
individuals.
    In reviewing waiver applications, TSA may consider the U.S. 
Sentencing Guidelines as informal guidance. The Guidelines address the 
mitigation of federal sentences and explain the factors and 
circumstances that should be considered when departing from standard 
federal sentences.
    Also, TSA is considering placing additional criteria in the rule 
for determining whether a waiver should be granted to an individual 
with a disqualifying offense. The criteria include: (1) At least three 
years have elapsed from the date the individual was released from 
incarceration for the offense to the date the individual is applying 
for the waiver; (2) the individual provides written proof that he or 
she has successfully completed or is currently meeting the conditions 
of his or her parole or probation; and (3) the individual has not been 
arrested within those three years. TSA requests comments on whether 
these factors should be added to the rule.
    Note that TSA will not grant waivers from the standards in Sec.  
1572.107. Determinations under that section already take into account 
individual circumstances, and do not contain specific criteria on which 
TSA could base a decision to grant or deny a waiver. An individual is 
finally denied under Sec.  1572.107 only after TSA has considered all 
of the circumstances. While the individual may appeal an Initial 
Notification of Threat Assessment issued under that section, once TSA 
determines that the individual does not meet the standards, no waiver 
is appropriate. Also, individuals who do not meet the citizenship 
requirements of the rule are not subject to a waiver. As noted above, 
FMCSA regulations require CDL holders to be U.S. citizens or lawful 
permanent residents of the U.S., and TSA cannot waive that requirement.
    After reviewing an individual's application for a waiver, TSA will 
send a written decision to the individual and, if the waiver is 
granted, the State in which the individual applied for the hazardous 
materials endorsement within 30 days of the date of the individual's 
application for a waiver.

Rulemaking Analyses and Notices

Justification for Immediate Adoption

    TSA is issuing this final rule without prior notice and opportunity 
to comment pursuant to its authority under section 4(a) of the 
Administrative Procedure Act (5 U.S.C. 553(b)). This provision allows 
the agency to issue a final rule without notice and opportunity to 
comment when the agency for good cause finds that notice

[[Page 23865]]

and comment procedures are ``impracticable, unnecessary or contrary to 
the public interest.''
    The catastrophic effect of the attacks on the World Trade Center 
and Pentagon on September 11, 2001, revealed the vulnerability of the 
nation's transportation system to terrorism. National security and 
intelligence officials have warned that future terrorist attacks are 
likely. The number of commercial vehicles that carry hazardous 
materials is far greater than the number of aircraft that might be 
hijacked by terrorists. A vehicle carrying hazardous materials, if used 
as a weapon in a terrorist attack, could cause significant loss of life 
and property damage.
    Section 1012 of the USA PATRIOT Act is a measure to increase the 
security of highway transportation of hazardous materials. The DOT 
began developing this rule as soon as the USA PATRIOT Act was enacted. 
Because of the likelihood of future terrorist attacks, and the 
potential for significant casualties and property damage in the event 
of a terrorist attack involving a vehicle carrying hazardous materials, 
FMCSA and TSA believe that immediate action is warranted, and TSA finds 
that notice and public comment procedures under 5 U.S.C. 553(b) are 
impracticable and contrary to the public interest. The delays inherent 
in such a process could make the difference between preventing and 
overlooking a terrorist threat.
    However, TSA is not making the procedures for fingerprint checks 
that will eventually be included in this rule effective upon 
publication because the development of those procedures will require 
additional consultation with the States. Delaying the full 
implementation of the security threat assessment process, including 
submission of fingerprints, for 180 days will give the States, the DOJ, 
and TSA a sufficient amount of time to develop the infrastructure and 
procedures to complete the fingerprint requirements that will be a part 
of this rule. By publishing this rule now and making it effective 
immediately, however, TSA can begin checking individuals against 
terrorist watchlists and other databases using names and other 
databases, including the FBI's criminal history database, using names 
and other information, to begin to determine if any individuals pose a 
security threat. In addition, the rule places a self-disclosure 
requirement on individuals who hold hazardous materials endorsements.
    TSA is requesting public comments on the rule. The agency will 
consider all comments received on or before the closing date for 
comments. Late-filed comments will be considered to the extent 
practicable. If changes to the rule are necessary to address 
transportation security more effectively, or in a less burdensome but 
equally effective manner, TSA will not hesitate to make such changes.

Regulatory Evaluation

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), provides for making determinations whether a 
regulatory action is ``significant'' and therefore subject to Office of 
Management and Budget (OMB) review and to the requirements of the 
Executive Order.
    TSA has determined that this action is a significant regulatory 
action within the meaning of Executive Order 12866 because there is 
significant public interest in security issues since the events of 
September 11, 2001. This interim final rule responds to the background 
check requirements of section 1012 of the USA PATRIOT Act by 
establishing the criteria and procedures TSA will follow in determining 
whether an individual applying for, transferring, or renewing a 
hazardous materials (HM) endorsement for a commercial drivers license 
(CDL) poses a security risk warranting denial of the endorsement.
    TSA has performed a preliminary analysis of the expected costs of 
this interim final rule for a 10-year period, from 2003 though 2012. 
Figures may change in the full Regulatory Evaluation that will be 
completed in the near future. As required by the Office of Management 
and Budget (OMB), the present value of this cost stream is calculated 
using a discount factor of 7 percent. All costs in this analysis are 
expressed in 2002 dollars. TSA requests comments on all methodologies, 
factors or numbers contained in this analysis, and will consider 
responses in the final rule analysis.
Increment Rule Cost
    Table 1 summarizes the estimated incremental compliance costs 
associated with this rule. It is estimated that this rule will cost 
$633 million (present value, $470 million) over 10 years.

                                 Table 1
                                (million)
------------------------------------------------------------------------
                                           Nominal value   Present value
------------------------------------------------------------------------
Population..............................             8.7  ..............
Direct Costs:                             ..............  ..............
  Fingerprint Capture...................            $434            $320
  Government Impact.....................             $55             $43
  State Impact..........................             $.8             $.8
    Total Direct Costs..................            $490            $364
Opportunity Costs:
  Lost Time.............................            $143            $106
                                         =================
    Total Rule Cost.....................            $633            $470
------------------------------------------------------------------------

Background Check Population

    The primary incremental cost component of this rule is the cost 
associated with the fingerprinting process. Under this rule, 180 days 
after the effective date of the rule applicants must have successfully 
completed a fingerprint-based criminal history records check (CHRC) 
prior to receiving a new, renewed or transferred hazardous materials 
endorsement. Based on figures from the Federal Motor Carrier Safety 
Administration (FMCSA), it is estimated that there are currently 3.5 
million drivers holding a CDL with a hazardous materials endorsement. A 
pending rule from the FMCSA will require States to require drivers to 
renew their hazardous materials endorsement every five years. 
Therefore, it is assumed that one-fifth of that number will apply for 
renewal each year.

[[Page 23866]]

    Growth for drivers affected by this rule is estimated to be 2.8 
percent annually. This projection is the aggregate growth rates of the 
three primary occupational categories requiring CDLs, based on Bureau 
of Labor Statistics' Occupational Employment Projections. This figure 
accounts for growth and net replacement to the CDL work force. Specific 
data on drivers holding a CDL with a hazardous materials endorsement is 
not available at this time. However, this growth number is considered 
representative for cost estimating purposes. As shown in Table 2, this 
rule will require a total population of 8.7 million to be fingerprinted 
over a ten-year period.

                                                     Table 2
                                                     [,000]
----------------------------------------------------------------------------------------------------------------
                                                                                                       CHRC
                      Year                            Number          Growth         Renewals       population
----------------------------------------------------------------------------------------------------------------
2003............................................           3,500  ..............             681             681
2004............................................           3,598              98             700             798
2005............................................           3,699             101             720             820
2006............................................           3,802             103             740             843
2007............................................           3,908             106             760             867
2008............................................           4,018             109             782             891
2009.........................