DEALING WITH DRIVERS
Homeland security could put a dent in the already dwindling driver pool
Shortly after the Sept. 11, 2001, terrorists attacks Congress passed The USA Patriot Act which, among other things, requires drivers to be certified as a "non-threat" before they can receive or renew a commercial driver's license with a hazardous materials endorsement.
Patricia Smith
Senior Editor
What constitutes a "security risk" hasn't been defined, but most Washington insiders believe the criminal disqualifiers for hazmat credentials will mirror those for air transportation workers: murder, assault with intent to murder, espionage, treason, rape, kidnapping, unlawful possession of an explosive weapon, extortion, armed robbery, distribution of or intent to distribute a controlled substance, possession of a controlled substance, willful destruction of property, burglary, theft, fraud and aggravated assault. Identity will be based on finger-prints, and the criminal record checks could go back as much as 10 years.
Certainly, this relieves some of the burden for carriers who have opted to check criminal records on their own. Without access to the federal criminal data base, the process can be expensive and unreliable. Making the investigations a licensing requirement effectively shifts that task to state DMVs and TSA, but federal screening also raises some concerns.
"One fear is that the process will be extremely burdensome and take a long time," says Dan Shoemaker, vice president of government affairs for DAC Services. Limited manpower and a potential maze of state requirements could create a logjam that would keep drivers waiting several months for a CDL.
Shoemaker says the problem has been solved in other industries by giving non-government agencies secured access to the federal criminal data base. For instance, criminal background checks for bank employees are done through the American Banking Assn.
The American Trucking Assns. has expressed a desire to take on a similar role for trucking, but the suggestion draws protest from those who fear that it will put sensitive information in the wrong hands. The Teamsters have likened an ATA intermediary role to "the fox guarding the chicken coop." The union says it prefers to have a government agency serve as the clearinghouse.
Another alternative would be to contract the job to a private company. "We hope there are opportunities to provide effective and efficient third-party and private sector solutions," says Shoemaker, noting that DAC has submitted proposals.
THE HIRING DILEMMA
There is also concern that a broad definition of "security risk" will squeeze the already scarce supply of drivers. Heavy Duty Trucking and its sister publication, RoadStar, routinely receive letters from prisoners looking for trucking jobs. The No. 1 question: Who, if anyone, will hire them when they get out of jail?
We also get inquiries from truckers worried about keeping their jobs. "I don't haul hazmat but I'm still worried that my company will fire me because I don't have a hazmat endorsement," said one driver with a five-year-old conviction for drug possession - and a clean record since.
Many labor groups, including the Teamsters, argue that disqualifying crimes should be limited to those indicative of a terrorist threat. They also contend that denying a truck driver the right to work in his profession because he has a criminal conviction amounts to double jeopardy for people who have already paid their debts to society.
The screening rules will undoubtedly include an appeals process. Airport workers, for instance, can request a copy of their FBI report if they're denied employment and there's a procedure for correcting errors. However it's not likely that a driver will be given many details if he or she is turned down because of sensitive intelligence information.
Since Patriot Act screening will apply only to hazmat endorsements, carriers will still be free to set their own policies regarding criminal convictions for drivers who don't haul hazmat. For the most parts, fleet managers now base their decisions on "the crime and the time." As one explained, they look at the type of conviction and its relevance to truck driving, and they look at what the applicant has done since his or her release from jail.
The course, however, is littered with potential problems. Credentialing handled through state licensing agencies takes employers out of the information loop. They may know that a driver doesn't have, or can't get, a hazmat endorsement, but they won't know why. Thus they'll still have to rely on private screening measures, including expensive and often incomplete criminal background checks.
As one safety consultant noted, hiring a driver who can't pass the federal background check could mean higher insurance premiums and increased exposure to "negligent hiring" lawsuits if a driver is involved in an accident or commits a crime on the job. On the other hand, if non hazmat carriers refuse to hire drivers who don't qualify for hazmat endorsements, are they opening themselves to lawsuits from disgruntled applicants?
TOO MANY IDS
Some of those hiring dilemmas may be solved by expanding security measures. "Right now there are five different new laws requiring us to have security and federal background checks by seven different federal agencies," notes ATA spokesman Mike Russell. In addition to the Patriot Act, security clearance for drivers and other workers is included in the Maritime Transportation Security Act, Safe Explosive Act, Customs Trade Partnership Against Terrorism and Free and Secure Trade Programs, Air Transportation Security Act and the Defense Department's Military Transportation Management Command.
The Safe Explosives Act, passed by Congress last year, bars anyone who is not a U.S. citizen or lawful permanent resident from hauling explosives in the U.S. The ban also applies to anyone who was dishonorably discharged from the armed forces. TSA recently established temporary rules allowing Canadian drivers to bring explosives across the border if they are first cleared by Transport Canada and TSA. The agency says it's working on long-term security screening procedures for Canadian and Mexican drivers.
As of last November, drivers who transport any goods across the U.S./Canada border can apply for membership in the Free and Secure Trade Commercial Driver program, which expedites processing by customs and immigration. FAST members are fingerprinted and carry photo ID. Program administrators did not respond to our inquiries, but the logical assumption is that cardholders undergo immigration, criminal and intelligence background checks.
The Maritime Agency is working on background checks and credentialing for anyone with access to sensitive areas of ports, which will include drivers hauling containers. Many facilities have already established programs of their own, which means that drivers serving multiple ports must carry multiple IDs.
The answer to potential chaos may be Transportation Worker Identification Credential Program (TWIC) being developed by TSA in cooperation with DOT agencies. The program will establish one standardized credential that is universally accepted across all transportation modes. Applicants will all undergo the same screening procedures, "smart cards" and biometrics will identify cleared workers - probably at a number of access levels. Information about card holders will be maintained on a secure network of databases.
According to TSA spokesperson Chris Rhatigan, plans now call for the credentialing of some 12 million transportation workers, but could easily expand to 20 million as use of the system spreads. It will likely be a few years before we see full implementation, but TSA is rolling out two pilot programs this spring - one at the Long Beach/Los Angeles port, another in Philadelphia.
ATA generally favors the single ID, although Russell says the concept doesn't have universal support among all ATA members. But given the high priority currently placed on security, the TWIC program is probably a "done deal," he adds. Moreover, "having all the information on one card is going to be much easier for trucking companies to handle."
In addition to security-related information, ATA would like to see driver background information included in the data. "It doesn't make sense to have all the security related information, then still have to go through a driver background check," he says. "If you could do it all at once, and include the information in some manner on the card, it would solve a major administrative issue for large and small companies."
But again, there's that concern that a broad definition of "security risk" could put a significant dent in the driver pool. While motor carriers would still be allowed to hire drivers who didn't qualify for TWIC cards, those drivers could be denied unescorted access at major port, truck and railroad terminals.
Cracking Down On Fraud
Increased use of security credentials will likely mean an increase in license fraud and identity theft. Since 9-11 several states have enacted legislation to tie the expiration of a driver's license to the expiration of an immigration visa.
Many now ask applicants for several pieces of identification and are considering the use of biometric identifiers, like thumbprints. Nebraska this year launched digitally produced licenses that enable the state to maintain electronic copies of licensed holder photographs. If someone applies for a replacement license, DMV personnel can quickly and easily match the person with the stored photo.
The Federal Motor Carrier Safety Administration has been working with the states to instruct licensing personnel and law enforcement on ways to spot fraudulent documents. It is also working with state licensing experts to develop covert monitoring practices for CDL testers.
The American Assn. of Motor Vehicle Administrators wants to establish minimum licensing and reporting standards among all states, creating a system similar to the CDL program and the Commercial Driver License Information System. But in a joint report issued last year, the Council of State Governments and the National Conference of State Legislatures warned against a federal license for everyone. It would be an "implementation nightmare," they said, noting that it took six years to put the CDL program in place - and that represents only 5% of licenses issued. Moreover, the groups argued that a federal license is "the on-ramp to the national ID highway" where personal data could be used for a host of non-driving purposes.
The American Civil Liberties Union has come down hard against any sort of national identification, arguing that it would create more problems than it would solve. For one thing, the group says, a national ID wouldn't have stopped the 9-11 hijackers because many were in the country legally with legitimate identification documents. And "criminals and terrorists would continue to obtain false identification by legal or illegal means."
Moreover, the ACLU argues, it would open the doors to increased surveillance and would require the creation of a database where errors could "make someone unemployable - or worse."
While the ACLU and privacy groups have been vocal in their opposition to many requirements of the Patriot Act, Shoemaker notes that the argument pits privacy concerns against homeland security concerns. "In the current environment, I think homeland security will win that battle - at least for now. Five or 10 years from now if we don't have another event, Congress may go back and take another look."
Dealing with Drivers continued...
