Hazmat Drivers Must Clear Criminal Background Checks
Oliver B.Patton
Washington Editor
Hazmat drivers take notice: Under a new federal rule you must clear a background check by the FBI and other law enforcement agencies, as well as the Immigration and Naturalization Service.
As part of the government's defense against terrorism, the Transportation Security Administration (TSA) will check the backgrounds of some 3.5 million truck drivers with hazardous materials endorsements on their commercial drivers licenses. All hazmat endorsement holders have to be fingerprinted, and the endorsements have to be renewed at least every five years.
If the check reveals that a driver has been convicted of a serious felony - for example, treason or sedition, as well as robbery, rape, bribery or the unlawful possession of firearms or controlled substances - within the past seven years, he will not be allowed to haul hazmats. There is an appeal process.
This security restriction was ordered by Congress in the immediate aftermath of the Sept. 11, 2001, terrorist attacks. It reflects deep concern among security experts that hazmat transportation is a point of vulnerability that could be exploited by terrorists.
TSA, an arm of the Department of Homeland Security, is the lead agency on the rule, but other agencies such as the Federal Motor Carrier Safety Administration and the Research and Special Programs Administration also are involved to the extent that they regulate hazmat drivers.
Trucking interests are concerned about how the rule will affect the driver population.
"We feel we will see some (driver) attrition," said Cliff Harvison, president of the National Tank Truck Carriers. He was not referring to drivers being forced out of hazmat hauling by the rule, but to drivers deciding that the job is not worth the hassle of being fingerprinted and checked.
Another worry is that the federal and state bureaucracies are not prepared to manage the fingerprinting process. Harvison reports that early on, the state motor vehicle departments that are supposed to be in charge of fingerprinting did not know what they were supposed to do. He has asked the TSA to put together a meeting of stakeholders, including trucking representatives and state and federal officials, to work through the details of the process.
Timothy Lynch, president of the Motor Freight Carriers Assn., which represents the largest unionized less-than-truckload carriers, said he is concerned about the ambiguity of some of the terms in the rule. "We can understand treason and sedition, but we're not quite sure how some of the other things, like dishonesty or improper transportation of a hazardous material, rise to the level of a national security risk," he said.
Lynch said he is urging TSA to clarify such points with official interpretations, in order to quiet concerns among drivers.
How The Rule Works
By early August, the names of all current CDL holders with hazmat endorsements, and new hazmat applicants, will be screened against criminal and terrorism data bases. If a name does not pass muster, TSA will notify the driver and the state. The driver may contest the finding. If a driver does not respond or fails to correct the record, his endorsement will be revoked. If the search turns up an outstanding felony or warrant, TSA will notify the police.
After next October, states may not issue, renew or transfer a hazmat endorsement unless TSA has cleared the driver.
Drivers who clear the name check will have to submit fingerprints between October 2003 and May 2008, as part of the endorsement renewal process. New applicants will submit fingerprints when they apply for the endorsement. These fingerprints will be checked by the FBI and INS, as well as other law enforcement agencies such as Interpol, if necessary.
TSA, the Department of Justice and the states still are working out procedures for fingerprinting.
According to a TSA official, the process is likely to vary from state to state, depending on the state's systems and resources. Typically, drivers will go to the local police department, the state department of motor vehicles or a third-party company that has been licensed to collect fingerprints.
The driver will have to pay fingerprinting and processing costs when the print is taken. TSA officials said the cost will vary from state to state, but should be less than $100. This is a one-time cost, since the fingerprint will not have to be retaken when the endorsement is renewed.
After the FBI and INS review the print, their findings are sent to TSA, which will analyze the information. If the report is clear, TSA will notify the state. If the driver has a record, TSA will investigate and pass its findings on to the driver and the state. It will be up to the driver to notify his employer about disqualification.
A driver may appeal the TSA's decision, or seek a waiver - at which point the employer may enter the process in support of the driver, a TSA official said.
A driver who is disqualified from hauling hazmats may continue to haul non-hazardous products.
TSA will make its judgment based on whether or not the driver poses a threat to national security. The rule disqualifies any applicant who was convicted of any of these crimes in either a civilian or military court within the preceding seven years, or whose incarceration for one of these crimes ended within the preceding five years:
• Robbery, murder, rape or aggravated sexual abuse, assault with intent to murder, kidnapping or hostage-taking
• Smuggling, extortion, bribery, RICO violations, immigration violations
• Distribution of, intent to distribute, possession or importation of a controlled substance
• Dishonesty, fraud or misrepresentation, including identify fraud
• Conspiracy or attempt to commit any of these crimes
Other crimes will disqualify a driver no matter how long ago they were committed:
• Terrorism, espionage, treason, sedition, arson
• Improper transportation of a hazardous material
• Unlawful possession, use, sale distribution or manufacture of an explosive, explosive device, firearm or other weapon
• Crimes involving a severe transportation security incident
• Conspiracy or attempt to commit any of these crimes
Throughout the development of this rule there has been speculation that it will be the first step toward requiring background checks for all truck drivers. TSA officials made it clear, however, that their charter only goes as far as hazmat drivers. Any expansion of the requirement would have to be ordered by Congress, they said.
This is a final rule, but TSA said it will consider suggestions for improvements. The rule was published in the Federal Register on May 5. Web users can find it at http://dms.dot.gov - enter docket number 14610.
