TSA, DOT ISSUE BACKGROUND CHECK RULES FOR HAZMAT DRIVERS The Transportation Security Administration, along with the Federal Motor Carrier Safety Administration and the Research and Special Programs Administration, have issued interim final rules requiring criminal background checks for all truck drivers holding Commercial Driver’s Licenses (CDLs) with a hazardous materials endorsement. The rules implement requirements established in the USA PATRIOT Act, enacted October 26, 2001, and apply to transportation of placardable amounts of hazardous materials and any material listed as a select agent or toxin under 42 CFR Part 73. The TSA rule, 68 Federal Register 23852 (May 5, 2003), will establish a fingerprint-based criminal history records check based on the system that TSA has implemented for airline and airport employees. The process will involve a check of relevant criminal history databases through the Federal Bureau of Investigation, and in the case of an alien driver, a check of databases to determine the driver’s U.S. immigration status. Finally, where TSA believes it is appropriate, the agency will check the databases of Interpol and the U.S. National Central Bureau. If based on these reviews the TSA determines that driver a driver poses a security risk, the TSA will notify the state motor vehicle licensing agency to deny or revoke a driver’s hazmat endorsement. The TSA rule sets out standards for determining that a driver poses a security risk justifying denying or revoking a hazmat endorsement: 1. The driver is an alien (unless a lawful permanent resident of the U.S.) or has renounced his or her U.S. citizenship; 2. The driver is wanted or under indictment for certain disqualifying criminal offenses;
3. The driver has been convicted within the prior seven years in a military or civilian court of certain disqualifying criminal offenses, or has been release from incarceration for committing such offenses during the previous five years; 4. The driver has been adjudicated a mental defective or committed to a mental institution; or 5. The TSA otherwise considers the driver a security threat based on the agency’s review of the databases. As of September 2, 2003, any CDL driver who does not meet these security risk standards is no longer authorized to possess or obtain a hazmat endorsement, and must relinquish his or her endorsement to the relevant state licensing agency. [Note that the TSA rules do not affect a driver’s authorization to transport non-hazmat cargo in a commercial motor vehicle—only the hazmat endorsement is affected by the security risk requirements.] The TSA intends to begin immediate checks on existing holders of hazmat endorsements against the FBI and other international and immigration databases, based on driver name and biographical information. If the TSA determines that a driver presents a security risk, the TSA will notify the state motor vehicle licensing agency and the driver that the driver is not eligible for a hazmat endorsement. The driver may contest the results o the records check by presenting fingerprints and relevant court records to establish his or her identity and background. If the driver does not contest the findings, or if the driver fails to refute the findings, the state licensing agency must revoke the driver’s hazmat endorsement. Additionally, if the TSA records checks disclose any warrants outstanding against the driver for disqualifying offenses, the TSA will notify the appropriate law enforcement agencies.
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Under the new rules, however, neither the TSA nor the state licensing agency is required to notify a driver’s employer if the driver’s hazmat endorsement is revoked or denied. This now makes it necessary for companies employing hazmat drivers to conduct their own frequent checks of a driver’s endorsement status by inquiries to drivers and to state licensing agencies. The main part of the new background check rules will go into effect within the next six months. By November 3, 2003, TSA intends to establish a fingerprint-based identification system for conducting background checks on all drivers seeking to obtain, renew or transfer a CDL with a hazmat endorsement. All states must have a CDL licensing procedure in place by that time to use driver applicant fingerprints as the basis for conducting background checks. TSA will provide guidance to drivers on here to report to give fingerprints: local law enforcement offices, state motor vehicle licensing agencies, or private companies that have been certified to take fingerprint information. The list of disqualifying criminal offenses includes the following crimes: 1. Any crime listed in 18 U.S.C. Chapter 113B—Terrorism; 2. Murder; 3. Assault with intent to murder; 4. Espionage; 5. Sedition; 6. Kidnapping or hostage taking; 7. Treason; 8. Rape or aggravated sexual abuse;
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9. Unlawful possession, use, sale, distribution, or manufacture of an explosive, explosive device, firearm, or other weapon; 10. Extortion; 11. Robbery; 12. Arson; 13. Distribution of, intent to distribute, possession, or importation of a controlled substance; 14. Dishonesty, fraud, or misrepresentation, including identity fraud; 15. A crime involving a severe transportation security incident; 16. Improper transportation of a hazardous material; 17. Bribery; 18. Smuggling; 19. Immigration violations; 20. Violations of the Racketeering and Corrupt Organizations Act, 18 U.S.C. 1961 et seq. 21. Conspiracy or attempt to commit any of the crimes listed above. The TSA rule requires state motor vehicle licensing agencies to notify drivers at least six months before their hazmat endorsements expire, and requires drivers to apply for renewal of their endorsements at least 90 days before the expiration date. This is intended to provide adequate time for completing the background checks before expiration of the endorsements. If the TSA makes an initial determination that the driver poses a security risk, the TSA will notify the driver, and the driver has an opportunity to appeal the decision. In
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addition, if a driver does meet one of the standards for security risk under the rule, the driver may seek a waiver of the disqualification by providing evidence of rehabilitation, restitution, or other circumstances of the incident. The FMCSA rule, 68 Federal Register 23844 (May 5, 2003), prohibits state licensing agencies from issuing, renewing, transferring or upgrading a CDL with a hazmat endorsement unless the TSA has first conducted the background check and determined that the applicant does not pose a security risk. The RSPA rule, 68 Federal Register 23832 (May 5, 2003), incorporates provisions relating to transportation of explosives under the Safe Explosives Act, 18 U.S.C. §842(i), into the Hazardous Materials Regulations and requires shippers and transporters of hazmat to comply with the new federal security regulations for motor carrier and vessel transportation. As the agency with overall authority for transportation security, TSA intends to harmonize, to the extent possible, all of the various background checks required by statute, including the Maritime Transportation Security Act, enacted November 25, 2002, which requires background checks for individuals with access to a secure area of a vessel or facility.
Rick Schweitzer GAWDA General Counsel and Government Affairs Consultant May 2003
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