DOT 49 CFR PART 1515-2010 APPEAL AND WAIVER PROCEDURES FOR SECURITY THREAT ASSESSMENTS FOR INDIVIDUALS.pdf

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1、289 Transportation Security Administration, DHS 1515.1 PART 1515APPEAL AND WAIVER PROCEDURES FOR SECURITY THREAT ASSESSMENTS FOR INDI-VIDUALS Sec. 1515.1 Scope. 1515.3 Terms used in this part. 1515.5 Appeal of Initial Determination of Threat Assessment based on criminal conviction, immigration statu

2、s, or men-tal capacity. 1515.7 Procedures for waiver of criminal of-fenses, immigration status, or mental ca-pacity standards. 1515. 9 Appeal of security threat assessment based on other analyses. 1515.11 Review by administrative law judge and TSA Final Decision Maker. AUTHORITY: 46 U.S.C. 70105; 49

3、 U.S.C. 114, 5103a, 40113, and 46105; 18 U.S.C. 842, 845; 6 U.S.C. 469. SOURCE: 72 FR 3588, Jan. 25, 2007, unless otherwise noted. 1515.1 Scope. (a) Appeal. This part applies to appli-cants who are appealing an Initial De-termination of Threat Assessment or an Initial Determination of Threat As-sess

4、ment and Immediate Revocation in a security threat assessment (STA) as described in each of the following: (1) 49 CFR part 1572 for a hazardous materials endorsement (HME) or a Transportation Worker Identification Credential (TWIC). VerDate Mar2010 08:56 Nov 10, 2010 Jkt 220220 PO 00000 Frm 00299 Fm

5、t 8010 Sfmt 8010 Y:SGML220220.XXX 220220ER20FE02.012erowe on DSK5CLS3C1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-290 49 CFR Ch. XII (10110 Edition) 1515.3 (2) 49 CFR part 1540, subpart C, which includes individuals engaged in air c

6、argo operations who work for certain aircraft operators, foreign air carriers, IACs, certified cargo screening facili-ties, or validation firms. (b) Waivers. This part applies to ap-plicants for an HME or TWIC who un-dergo a security threat assessment de-scribed in 49 CFR part 1572 and are eli-gible

7、 to request a waiver of certain standards. 72 FR 3588, Jan. 25, 2007, as amended at 74 FR 47695, Sept. 16, 2009 1515.3 Terms used in this part. The terms used in 49 CFR parts 1500, 1540, 1570, and 1572 also apply in this part. In addition, the following terms are used in this part: Administrative la

8、w judge means an ad-ministrative law judge appointed pur-suant to the provisions of 5 U.S.C. 3105. Applicant means an individual who has applied for one of the security threat assessments identified in 49 CFR 1515.1. This includes an individual who previously applied for and was found to meet the st

9、andards for the security threat assessment but TSA later deter-mined that the individual poses a secu-rity threat. Date of service means (1) In the case of personal service, the date of personal delivery to the resi-dential address listed on the applica-tion; (2) In the case of mailing with a cer-ti

10、ficate of service, the date shown on the certificate of service; (3) In the case of mailing and there is no certificate of service, 10 days from the date mailed to the address des-ignated on the application as the mail-ing address; (4) In the case of mailing with no cer-tificate of service or postma

11、rk, the date mailed to the address designated on the application as the mailing ad-dress shown by other evidence; or (5) The date on which an electronic transmission occurs. Day means calendar day. Final Agency Order means an order issued by the TSA Final Decision Maker. Decision denying a review of

12、 a waiver means a document issued by an admin-istrative law judge denying a waiver requested under 49 CFR 1515.7. Mail includes U.S. mail, or use of an express courier service. Party means the applicant or the agency attorney. Personal delivery includes hand-deliv-ery or use of a contract or express

13、 mes-senger service, but does not include the use of Government interoffice mail service. Properly addressed means a document that shows an address contained in agency records, a residential, business, or other address submitted by a person on any document provided under this subpart, or any other a

14、ddress shown by other reasonable and available means. Substantial Evidence means such rel-evant evidence as a reasonable person might accept as adequate to support a conclusion. Security threat assessment means the threat assessment for which the appli-cant has applied, as described in 49 CFR 1515.1

15、. TSA Final Decision Maker means the Administrator, acting in the capacity of the decision maker on appeal, or any person to whom the Administrator has delegated the Administrators decision- making authority. As used in this sub-part, the TSA Final Decision Maker is the official authorized to issue

16、a final decision and order of the Adminis-trator. 1515.5 Appeal of Initial Determina-tion of Threat Assessment based on criminal conviction, immigration status, or mental capacity. (a) Scope. This section applies to ap-plicants appealing from an Initial De-termination of Threat Assessment that was b

17、ased on one or more of the fol-lowing: (1) TSA has determined that an appli-cant for an HME or a TWIC has a dis-qualifying criminal offense described in 49 CFR 1572.103. (2) TSA has determined that an appli-cant for an HME or a TWIC does not meet the immigration status require-ments as described in

18、49 CFR 1572.105. (3) TSA has determined that an appli-cant for an HME or a TWIC is lacking mental capacity as described in 49 CFR 1572.109. (b) Grounds for appeal. An applicant may appeal an Initial Determination of VerDate Mar2010 08:56 Nov 10, 2010 Jkt 220220 PO 00000 Frm 00300 Fmt 8010 Sfmt 8010

19、Y:SGML220220.XXX 220220erowe on DSK5CLS3C1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-291 Transportation Security Administration, DHS 1515.5 Threat Assessment if the applicant is asserting that he or she meets the standards for the s

20、ecurity threat as-sessment for which he or she is apply-ing. (1) Initiating an appeal. An applicant initiates an appeal by submitting a written reply to TSA, a written request for materials from TSA, or by request-ing an extension of time in accordance with 1515.5(f). If the applicant does not initi

21、ate an appeal within 60 days of re-ceipt, the Initial Determination of Threat Assessment becomes a Final Determination of Threat Assessment. (i) In the case of an HME, TSA also serves a Final Determination of Threat Assessment on the licensing State. (ii) In the case of a mariner applying for TWIC,

22、TSA also serves a Final De-termination of Threat Assessment on the Coast Guard. (iii) In the case of a TWIC, TSA serves a Final Determination of Threat Assessment on the appropriate Federal Maritime Security Coordinator (FMSC). (2) Request for materials. Within 60 days of the date of service of the

23、Initial Determination of Threat Assessment, the applicant may serve upon TSA a written request for copies of the mate-rials upon which the Initial Determina-tion was based. (3) TSA response. (i) Within 60 days of receiving the applicants request for materials, TSA serves the applicant with copies of

24、 the releasable materials upon the applicant on which the Initial Determination was based. TSA will not include any classified information or other protected information described in paragraph (f) of this section. (ii) Within 60 days of receiving the applicants request for materials or written reply

25、, TSA may request addi-tional information or documents from the applicant that TSA believes are necessary to make a Final Determina-tion. (4) Correction of records. If the Initial Determination of Threat Assessment was based on a record that the appli-cant believes is erroneous, the appli-cant may c

26、orrect the record, as fol-lows: (i) The applicant contacts the juris-diction or entity responsible for the in-formation and attempts to correct or complete information contained in his or her record. (ii) The applicant provides TSA with the revised record, or a certified true copy of the information

27、 from the ap-propriate entity, before TSA deter-mines that the applicant meets the standards for the security threat as-sessment. (5) Reply. (i) The applicant may serve upon TSA a written reply to the Initial Determination of Threat Assessment within 60 days of service of the Initial Determination,

28、or 60 days after the date of service of TSAs response to the applicants request for materials under paragraph (b)(1) of this section, if the applicant served such request. The reply must include the rationale and information on which the applicant disputes TSAs Initial Determination. (ii) In an appl

29、icants reply, TSA will consider only material that is relevant to whether the applicant meets the standards applicable for the security threat assessment for which the appli-cant is applying. (6) Final determination. Within 60 days after TSA receives the applicants reply, TSA serves a Final Determin

30、a-tion of Threat Assessment or a With-drawal of the Initial Determination as provided in paragraphs (c) or (d) of this section. (c) Final Determination of Threat As-sessment. (1) If the Assistant Adminis-trator concludes that an HME or TWIC applicant does not meet the standards described in 49 CFR 1

31、572.103, 1572.105, or 1572.109, TSA serves a Final Determina-tion of Threat Assessment upon the ap-plicant. In addition (i) In the case of an HME, TSA serves a Final Determination of Threat As-sessment on the licensing State. (ii) In the case of a TWIC, TSA serves a Final Determination of Threat As-

32、sessment on the Coast Guard. (2) The Final Determination includes a statement that the Assistant Admin-istrator has reviewed the Initial Deter-mination, the applicants reply and any accompanying information, and any other materials or information avail-able to him or her, and has determined that the

33、 applicant poses a security threat warranting denial of the secu-rity threat assessment for which the applicant has applied. VerDate Mar2010 08:56 Nov 10, 2010 Jkt 220220 PO 00000 Frm 00301 Fmt 8010 Sfmt 8010 Y:SGML220220.XXX 220220erowe on DSK5CLS3C1PROD with CFRProvided by IHSNot for ResaleNo repr

34、oduction or networking permitted without license from IHS-,-,-292 49 CFR Ch. XII (10110 Edition) 1515.7 (d) Withdrawal of Initial Determina-tion. If the Assistant Administrator or Assistant Secretary concludes that the applicant does not pose a security threat, TSA serves a Withdrawal of the Initial

35、 Determination upon the appli-cant, and the applicants employer where applicable. (e) Nondisclosure of certain informa-tion. In connection with the procedures under this section, TSA does not dis-close classified information to the ap-plicant, as defined in E.O. 12968 sec. 1.1(d), and reserves the r

36、ight not to dis-close any other information or mate-rial not warranting disclosure or pro-tected from disclosure under law. (f) Extension of time. TSA may grant an applicant an extension of time of the limits for good cause shown. An ap-plicants request for an extension of time must be in writing an

37、d be re-ceived by TSA within a reasonable time before the due date to be ex-tended; or an applicant may request an extension after the expiration of a due date by sending a written request de-scribing why the failure to file within the time limits was excusable. TSA may grant itself an extension of

38、time for good cause. (g) Judicial review. For purposes of ju-dicial review, the Final Determination of Threat Assessment constitutes a final TSA order of the determination that the applicant does not meet the standards for a security threat assess-ment, in accordance with 49 U.S.C. 46110. The Final

39、Determination is not a final TSA order to grant or deny a waiver, the procedures for which are in 49 CFR 1515.7 and 1515.11. (h) Appeal of immediate revocation. If TSA directs an immediate revocation, the applicant may appeal this deter-mination by following the appeal pro-cedures described in parag

40、raph (b) of this section. This applies (1) If TSA directs a State to revoke an HME pursuant to 49 CFR 1572.13(a). (2) If TSA invalidates a TWIC by issuing an Initial Determination of Threat Assessment and Immediate Revocation pursuant to 49 CFR 1572.21(d)(3). 72 FR 3588, Jan. 25, 2007; 72 FR 14049,

41、Mar. 26, 2007 1515.7 Procedures for waiver of criminal offenses, immigration sta-tus, or mental capacity standards. (a) Scope. This section applies to the following applicants: (i) An applicant for an HME or TWIC who has a disqualifying criminal of-fense described in 49 CFR 1572.103(a)(5) through (a

42、)(12) or 1572.103(b) and who requests a waiver. (ii) An applicant for an HME or TWIC who is an alien under temporary pro-tected status as described in 49 CFR 1572.105 and who requests a waiver. (iii) An applicant applying for an HME or TWIC who lacks mental capac-ity as described in 49 CFR 1572.109

43、and who requests a waiver. (b) Grounds for waiver. TSA may issue a waiver of the standards described in paragraph (a) and grant an HME or TWIC if TSA determines that an appli-cant does not pose a security threat based on a review of information de-scribed in paragraph (c) of this section. (c) Initia

44、ting waiver. (1) An applicant initiates a waiver as follows: (i) Providing to TSA the information required in 49 CFR 1572.9 for an HME or 49 CFR 1572.17 for a TWIC. (ii) Paying the fees required in 49 CFR 1572.405 for an HME or in 49 CFR 1572.501 for a TWIC. (iii) Sending a written request to TSA fo

45、r a waiver at any time, but not later than 60 days after the date of service of the Final Determination of Threat Assessment. The applicant may request a waiver during the application process, or may first pursue some or all of the appeal procedures in 49 CFR 1515.5 to assert that he or she does not

46、 have a disqualifying condition. (2) In determining whether to grant a waiver, TSA will consider the following factors, as applicable to the disquali-fying condition: (i) The circumstances of the disquali-fying act or offense. (ii) Restitution made by the appli-cant. (iii) Any Federal or State mitig

47、ation remedies. (iv) Court records or official medical release documents indicating that the applicant no longer lacks mental ca-pacity. (v) Other factors that indicate the applicant does not pose a security VerDate Mar2010 08:56 Nov 10, 2010 Jkt 220220 PO 00000 Frm 00302 Fmt 8010 Sfmt 8010 Y:SGML22

48、0220.XXX 220220erowe on DSK5CLS3C1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-293 Transportation Security Administration, DHS 1515.9 threat warranting denial of the HME or TWIC. (d) Grant or denial of waivers. (1) The Assistant Admin

49、istrator will send a written decision granting or denying the waiver to the applicant within 60 days of service of the applicants re-quest for a waiver, or longer period as TSA may determine for good cause. (2) In the case of an HME, if the As-sistant Administrator grants the waiv-er, the Assistant Administrator will send a Determination of No Security Threat to the licensing State within 60 days of service of the applicants re-