Background Check Will Create Hurdles For Hazmat Drivers With Criminal Records
OLIVER B. PATTON
WASHINGTON EDITOR
Drivers who haul hazardous materials soon will have to confront a new job requirement. Besides passing their CDL exam and hazmat endorsement, they will have to clear a background check designed to screen out security risks.
The hazmat rule, required by a law Congress passed in the wake of the Sept. 11 terrorist attacks, reflects a consensus among experts that these cargoes are a point of vulnerability that could be exploited by terrorists. It was due last February but has been delayed by the difficulty of sorting out details.
And the details are troublesome -- particularly for drivers who have a criminal record. For example, what, precisely, constitutes a "security risk?" Who makes the decision, and what happens to a driver who is not cleared?
One driver, who did not want to be identified, expressed deep concern that his past might cause him to be cut off from his future as a driver. When he was young and immature in the 1980s, he said, he made a mistake and went to prison. He said he has since straightened out and now drives long-haul for a company that delivers sensitive cargo that is licensed through a number of government agencies.
He's scared that a background check could cost him his license, even though his boss knows about his past. "It's nerve-wracking that it could affect me," he said.
It turns out that this driver will not be affected -- under the rule, the background check will be limited to 10 years. But drivers with more recent criminal convictions may have difficulty.
Since the rule is pending the exact details are not public, but sources indicate that the Department of Transportation will be able to deny a hazmat endorsement for a variety of criminal convictions. Crimes on the list will be murder, assault with intent to murder, treason, kidnapping, extortion and armed robbery. Also: unlawful possession, sale, distribution or manufacture of a weapon or an explosive, and distribution of, or intent to distribute a controlled substance.
It is not clear yet if the rule will give DOT the latitude to take mitigating circumstances into account when it screens a driver's record. If it does not, a bill now pending in the Senate would provide that authority -- it would require DOT to consider whether or not the criminal acts actually constitute a security risk. In any event, there will be an appeals process.
It is not clear at this point how many drivers might be affected. That will depend on which crimes are published in the final rule. But clearly, some drivers will be challenged. As one trucking executive said, "They're truck drivers, not choirboys."
This issue alone gives a sense of the complexity of what at first glance appears to be a straightforward requirement for a national screening system. DOT writers drafted at least 14 versions of the rule before they were satisfied, according to a source who did not want to be identified -- and the process still is under way.
The public will have a chance to comment on the rule once it is proposed.
In general, the rule will require all drivers who need a hazmat endorsement to pass a strict federal background check. Drivers will have to be fingerprinted in order to prove their identity and have their records checked by the FBI and, possibly, the Immigration and Naturalization Service. The information will be forwarded to DOT for analysis.
Drivers will have to go the local police station to be fingerprinted, since most state motor vehicle departments are not equipped for the job. The Federal Motor Carrier Safety Administration, which is writing the rule, does want state DMVs to provide that service, but it will take several years to get the system in place, a DOT official said.
Meanwhile, drivers can expect that the clearance process will take up to two months.
The background check will cost as much as $75, including $24 for the check and $20 for fingerprinting, with additional costs if an INS check is necessary.
The safety agency will not address the issue of who pays, although the driver will be ultimately responsible. The agency assumes that many trucking companies will decide to cover the cost, an FMCSA official said.
Another feature of the new HM license raises questions about international trucking. The license will be limited to U.S. citizens and lawful permanent residents. So what about background checks for hazmat drivers from Canada and Mexico?
Those two countries will have to provide assurances, through a Memorandum of Understanding, that they are doing their own background checks on all licensed HM drivers, a DOT official said.
This rule foreshadows a requirement that many trucking policy makers consider inevitable: background checks for all truck drivers.
Trucking interests such as American Trucking Assns. and the National Tank Truck Carriers are actively supporting universal background checks for truck drivers.
In a recent letter to the FMCSA, NTTC president Clifford Harvison underscored the view that all commercial drivers should be covered.
"As has been shown in the two truck-related terrorist acts in the United States -- Oklahoma City and the World Trade Center -- no CDL holder was involved and no special access to a vehicle laden with hazardous materials was required," Harvison wrote.
Longer term, other licensing changes are under consideration.
DOT is studying the idea of a National Transportation Worker ID Card. This "smart card" would verify identities with biometric information, validate background information and control access to vehicles and facilities.
And Congress is debating the idea of an integrated national license for all drivers. The idea would be to replicate the CDL system for all driver licenses, so that no one could hold a driver's license in more than one state.
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