States Press For More Time On Hazmat Background Checks
Oliver B.Patton
Washington Editor
As the deadline for criminal background checks of hazardous materials drivers nears, the Transportation Security Administration (TSA) is under increasing pressure to postpone enforcement of the rule.
Practically everyone involved has told TSA there is no way that the system will be ready by Nov. 3, when enforcement is supposed to begin.
"I am rather amazed that they have not postponed it yet," said Cliff Harvison, president of the National Tank Truck Carriers, which represents the tanker industry. "The pressure is overwhelming."
As HDT went to press, there was a published report that the agency had in fact postponed the rule, but a TSA spokesman said the report was "premature." It is safe to assume that TSA will make "appropriate changes" to the rule, said spokesman Brian Turmail.
The rule says a driver with a hazmat endorsement on his or her Commercial Driver's License must clear a background check by the FBI and other law enforcement agencies, as well as the Immigration and Naturalization Service. It was ordered by Congress immediately after the Sept. 11, 2001, attacks in response to concerns among security experts that hazmat transportation could be exploited by terrorists.
All hazmat endorsement holders must 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 hazmat. There is an appeal process.
The states, which are key to enforcement, and the trucking industry generally agree that the rule is necessary - some, in fact, would like to see it expanded to all truck drivers. But they also believe that the systems needed to make the process work are not in place.
The process is, in fact, quite complicated. Drivers have to be fingerprinted, and that information has to be transmitted to TSA and the other agencies involved in the background check. Once the driver's name and fingerprints are screened through the criminal and immigration data bases, the results have to be transmitted to TSA, where judgments about the information will be made. Then the judgment has to go back to the state and, ultimately, to the driver. All of these transfers must be secure, to protect the chain of custody.
In a message that is echoed by many individual state motor vehicle departments, the American Assn. of Motor Vehicle Administrators (AAMVA) told TSA that key pieces of this system are not ready.
TSA has not specified how driver credentials are to be recorded, nor how fingerprinting is supposed to work, AAMVA said. Further, the driver's data is supposed to be integrated into the Commercial Drivers License Information System, but that system is not ready for the job and there are no federal funds available to upgrade it.
TSA officials have told the states that if CDLIS is not ready they will not have to meet the Nov. 3 deadline. But the states want it in black and white that they will not be held to account if the system is not ready. They are telling TSA to either push back the deadline or grant them formal indemnity.
Not incidentally, AAMVA and many others say that TSA has grossly underestimated the cost of the system. AAMVA said the total tab for the states will come to almost $9 million.
Other problems: According to the California DMV, even if states are ready to manage the fingerprinting requirement, the FBI is not ready to process the data; and the Illinois Driver Services Department pointed out that most states will have to pass legislation to implement the rule, but most legislative sessions are now over for the year, so that can't happen until early next year at best.
Also on the table are issues raised by trucking interests. The International Brotherhood of Teamsters said the list of felonies is too broad. The union is particularly concerned about disqualifying a driver who has been convicted of possession of a controlled substance, or of fraud-related offenses. "While certainly not admirable, such crimes do not in any way indicate a propensity towards terrorism."
American Trucking Assns. and the Motor Freight Carriers Assn. want the rule rewritten to give employers access to their employees' background checks. That is the best way to ensure that an unqualified driver does not get on the road, they said.
They are at odds with the Teamsters on this point: The union sees no need for employer involvement. "Employers have no right to participate in the drivers' application for a commercial driver's license. The application for a hazmat endorsement should be no different."
For the time being, there is nothing for drivers and companies to do but wait. Drivers who have reason to believe that their background check might lead to their hazmat endorsement being revoked should have voluntarily contacted TSA by Sept. 2. According to Turmail, the TSA spokesman, some drivers - fewer than 100 - have done that and have applied for waivers.
TSA is supposed to finish checking all hazmat-endorsed drivers by name against the federal and immigration data bases by Nov. 3 - but as HDT went to press that process had not begun.
Starting Nov. 3 all applicants for the endorsement are supposed to submit fingerprints - unless, of course, TSA changes the deadline.
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