Washington Insider
Background checks face likely delay, comments

Paul Cullen Jr.
The Cullen Law Firm, PLLC

The Transportation Security Administration and the Federal Motor Carrier Safety Administration will be hard pressed to meet their self-imposed Nov. 3, 2003, deadline to perform background checks for all hazmat endorsement applications or renewals. Too many details have not been established. A source at TSA tells Washington Insider that a delay in the start of the rule is under consideration.

Congress mandated this background check as part of the 2001 PATRIOT Act. Imprecise wording by Congress and the creation and then subsequent split off of the TSA delayed agency action on the mandate until this year.

On May 5, the TSA proposed a rule describing how background checks would be performed. That proposal omitted important details, such as how states will collect, store and transmit fingerprints. By mid-summer, TSA has still not given states guidance for fingerprinting. States do not know whether they will need to hire and train staff or contract to the private sector. The fingerprint requirement is an integral part of the TSA’s background check application process. Until states have more info and more time to prepare, it is unlikely drivers will be required to submit to the background check process when they obtain or renew a hazmat endorsement.

This does not mean drivers will not be subject to a background check. TSA plans to do it on the names of all hazmat endorsement holders in all states’ motor vehicle databases. Drivers will be required to act, however, only if they receive a notice from TSA telling them an initial negative determination has been made on their background. The notice will give the driver 30 days to begin appeal or waiver processes and will say how to initiate those processes.

TSA receives public comments
OOIDA submitted comments to TSA urging the agency to adopt additional privacy restrictions on its use of personal driver information. The association also urged TSA to give drivers the right to a hearing before taking away a hazmat endorsement. Finally, OOIDA asked whether someone the TSA and FMCSA think is a security threat ought to be denied a CDL altogether, not just a hazmat endorsement.

TSA should improve privacy protections
In its proposal, TSA explains it wants to harmonize standards for the various background checks Congress requires them to perform. In addition to hazmat driver background checks, Congress has also asked TSA to require background checks before issuing the new transportation worker identification card. This ID card would be required of all persons to be given access to secure transportation areas in the ports and behind the scenes at airports.

In the law that created the transportation ID card, Congress specifically required individuals be given the right to a hearing to appeal a negative background check finding. Congress also specifically restricted the TSA’s use of private information. No such provisions have been proposed for background checks for hazmat endorsements, and OOIDA thinks there should be.

The TSA has proposed to give drivers two chances to respond to a negative background check. The first is the right to appeal such a decision based on incorrect information. The TSA will tell the driver why he failed the background check, and then the driver will be given the opportunity to prove to TSA they have identified the wrong person or they relied on incorrect information.

The second opportunity for a driver to overcome a negative background check is to apply for a waiver. This is appropriate when the TSA has correctly identified the driver and correctly applied the background check standards, but the driver fails. The driver will have an opportunity to prove that, despite his or her record, he or she deserves to be allowed a hazmat endorsement because he or she has been rehabilitated.

OOIDA appreciates TSA’s willingness to provide the appeal and waiver opportunities, but thinks the agency should provide the opportunity for a hearing for drivers to save their hazmat endorsement.

For many truckers, denial of a hazmat endorsement would be the end of their career. Many carriers will only hire drivers with a hazmat endorsement. There will also be carriers who won’t touch a driver who’s been denied a hazmat endorsement. The consequences of a negative background check are very serious.

When the government gives itself the power to take a right or privilege from someone, the constitutional right to due process demands that the person be given the right to make his case in person, on the record, before an impartial decision maker. Before the TSA makes a decision that could end a driver’s career, it should give the driver the right to a hearing during the proposed appeal and waiver processes.

Privacy improvements urged
The information the TSA proposes to use to conduct background checks comes from criminal histories in FBI databases, immigration files/databases and various security databases closed to the public. A federal privacy act prevents the government from making this info public. OOIDA has asked TSA to restrict its own use of this information.

First, OOIDA asks the TSA to make clear that TSA employees should use private info only for the background check and no other purpose. Nobody else should have access to private information or learn why a driver fails a background check. OOIDA thinks that TSA intends to keep tight control of personal info, but asks TSA to make that policy part of the actual regulation.

OOIDA is also concerned for the state’s use of private information collected from the driver. In the proposed rule, states will ask the driver to reveal a great deal of private information on an application form. The TSA will be checking that same information as part of the background check. States will also collect and possess the driver’s fingerprints. The proposed rule contains no specific restriction on the states’ use of information written on an application or of fingerprints. OOIDA thinks it should.

Congress gave TSA authority to perform background checks for hazmat endorsements. Private information that gets seen and used by more people because of this rule should be tightly controlled for that purpose alone.

Should persons who are security threats have a CDL?
Finally, OOIDA asks both the TSA and FMCSA to identify when a person’s background information would support the revocation of a full CDL. OOIDA’s comments specifically discuss examples of immigrants and the mentally ill.

The TSA plans to deny a hazmat endorsement to anyone who is not a U.S. citizen or permanent resident. OOIDA suggests when TSA checks a driver’s immigration status, they will also learn whether that person has the right to work in the U.S. as a truckdriver. If they do not have current permission to work in the U.S. in a job that requires a CDL, the TSA and FMCSA should direct the state to revoke that person’s CDL.

Similarly, the TSA proposes denying hazmat endorsement to persons judged in court to be mentally ill or who have been put in an institution for the mentally ill. This appears to be a much stricter standard than the mental health requirement on a CDL medical certificate. Therefore the determination that a person should lose his or her hazmat endorsement should be more than enough evidence to fail a driver’s medical certificate and revoke the entire CDL.

TSA thinks it has created a set of background check standards that identify persons who are homeland security threats. If those persons are truly a homeland security threat, then OOIDA asks, why should they have a CDL in the first place? Nobody thinks this rule is going to stop any determined terrorist from obtaining hazardous materials. But if the rule closes one opportunity someone might use to gain easy access to hazardous materials, why not also close that same opportunity to easy access to a truck?