TSA Background Checks On Hazmat CDL Drivers Delayed

Don't wait until accidents and injuries occur.

By Richard P. Schweitzer, Esq.

The Transportation Security Administration (TSA) has to date delayed a system of background checks for all CDL drivers who apply for a new or renewed hazmat endorsement. Effective September 2, 2003, state motor vehicle licensing agencies were supposed to begin submitting biographical information on driver's—name, address, Social Security Numberto TSA for processing through the FBI computer databases. This has not happened. In addition, as of this writing, TSA was likely to postpone requirements for fingerprint-based background checks scheduled to become effective November 3, 2003.

The TSA rule, published at 68 Federal Register 23852 (May 5, 2003), mandates 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. 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, TSA determines that a driver poses a security risk, TSA will notify the state motor vehicle licensing agency to deny or revoke a driver's hazmat endorsement.

TSA was supposed to use biographical information on driver applicants to run these same background checks. But state licensing agencies have not begun sending this information to TSA, and apparently TSA is not requiring any background checks at present to obtain a new or renewed hazmat endorsement. The fingerprint-based system will not begin until the states develop the ability to obtain driver prints and transmit them to TSA for processing. So far, TSA has issued no formal notice of delay implementing the rule, although some notice is expected soon.

Security Risk Standards
When it finally becomes effective, the TSA standards for determining that a driver poses a security risk justifying, denying or revoking a hazmat endorsement will be as follows:

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 released 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.
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. But neither the states nor employers have any method to enforce this requirement on drivers. The TSA rules do not affect a driver's authorization to transport non-hazmat cargo in a commercial motor vehicle; however, only the hazmat endorsement is affected by the security risk requirements.

Endorsement
Once the rule is implemented, if TSA determines that a driver presents a security risk, TSA will notify the state motor vehicle licensing agency that the driver is not eligible for a hazmat endorsement. The driver may contest the results of 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 TSA records checks disclose any warrants outstanding against the driver for disqualifying offenses, TSA will notify the appropriate law enforcement agencies.

Under the new rules, however, neither 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 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.