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6/24/2003
SPECIAL REPORT: Answering your questions on background checks for hazmat endorsements

On May 5, the TSA published the first details of how it will conduct background checks on CDL holders with hazmat endorsements. Under the rule, as soon as Nov. 1, 2003, and no later than May 5, 2008, the next time you apply to obtain, renew or transfer a hazmat endorsement, you will have to submit your fingerprints, and a background check will be performed.

Before November, however, the TSA will attempt to perform background checks on the estimated 3.5 million persons with hazmat endorsements found in state CDL databases. No fingerprints and no driver applications will be required. But if you think you might be disqualified by this initial background check, you may want to prepare to challenge it. But first, how do you know if you might be disqualified?

Who are they going after?

Congress passed this background check requirement as part of the U.S. PATRIOT Act, a comprehensive law intended to try to prevent new terrorist attacks on our country. It may be more accurate to think of this rule not as one that identifies individuals as terrorists, but one that identifies persons who could pose a security risk. The TSA is not interested in speeding tickets and unpaid bills. They want to identify people who have committed felonies and have shown the capacity for criminal intent, deception and violence.

According to the rule’s announcement, “TSA will determine that an individual poses a security threat if he or she: (1) Is an alien (unless he or she is a lawful permanent resident) or a U.S. citizen who has renounced his or her U.S. citizenship; (2) is wanted or under indictment for certain felonies; (3) has a conviction in military or civilian court for certain felonies; (4) has been adjudicated as a mental defective or committed to a mental institution; or (5) is considered to pose a security threat based on a review of pertinent databases.”

A person would be disqualified from obtaining or renewing their hazmat endorsement if he or she is wanted by law enforcement or is under indictment for violating one of the following crimes, was convicted of one of the following crimes during the previous seven years, was found not guilty by reason of insanity of committing one of the following crimes during the last seven years, or was released within the last five years from incarceration for committing any of the following crimes:

(1) Any crime listed in 18 U.S.C. Chapter 113B – Terrorism (Acts of terrorism).

(2) Murder.

(3) Assault with intent to murder.

(4) Espionage.

(5) Sedition.

(6) Kidnapping or hostage taking.

(7) Treason.

(8) Rape or aggravated sexual abuse.

(9) Unlawful possession, use, sale, distribution or manufacture of an explosive, explosive device, firearm or other weapon.

(10) Extortion.

(11) Robbery.

(12) Arson.

(13) Distribution of, intent to distribute, possession or importation of a controlled substance.

(14) Dishonesty, fraud or misrepresentation, including identity fraud.

(15) A crime involving a severe transportation security incident.

(16) Improper transportation of a hazardous material.

(17) Bribery.

(18) Smuggling.

(19) Immigration violations.

(20) Violations of the Racketeer Influenced and Corrupt Organizations Act; 18 U.S.C. 1961, et seq.

(21) Conspiracy or attempt to commit any of the crimes listed in paragraph (b) of this section.

Of this list, there is no seven-year time limit for the crimes listed in paragraphs (1), (4), (5), (7), (12), (15), and (16); the crime in paragraph (9) involving an explosive; and conspiracy or attempt to commit the crimes listed in paragraphs (1) and (2).  Such crimes permanently disqualify the person who committed them.

Some of these offenses are described in descriptive terms rather than as a citation to a specific section of the criminal law. Not all of those offenses are clearly defined. For example, the TSA has not specifically defined what the “improper transportation of a hazardous material” would be. Such an offense would most likely not include inadvertent or careless violations of the hazmat rules. The agency is probably more interested in persons found to be hauling hazardous materials for the purpose of using them to commit serious crimes.

Because there will be some room for interpretation and judgment under these categories, the driver’s ability to challenge a disqualification is very important. What the TSA employees might assume to be a violation of the law indicating criminal intent may be viewed differently if the driver has the opportunity to describe the true circumstances of the violation. This is why it is important to prepare now to challenge a possible disqualification in this first round of driver background checks.

How can you challenge a disqualification?

After both this year’s initial background checks on all hazmat endorsement holders and all future background checks, persons notified of their disqualification will have the right to challenge that decision at the TSA.

Once TSA notifies you of your imminent disqualification (and why), there are two ways you can challenge it. First, you may show the TSA that the background information they found is not yours. Second, you may ask for a waiver of the rule by proving that your background information does not support the conclusion that you’re a security threat.

The proof necessary to support a waiver request might include several types of information: Your prior offense may not fit into the categories listed in the rule; the time you were convicted of your offense was more than seven years ago; the time you completed your incarceration was more than five years ago; your prior offense may have been your mistake rather than an act showing criminal intent; or, you may demonstrate that you have reformed yourself and now have personal references that can attest to your good, law-abiding character.

Unfortunately, there are many details about the waiver process that have not yet been decided. This includes to whom you apply at TSA for a waiver, what kind of papers you should submit to them, whether you will be able to discuss your facts with them, what arguments they will accept, and how the entire waiver review process will work.

One fact we know is that once the TSA mails you a notice of disqualification, you will have 15 days to respond to it. OOIDA already plans to ask TSA to lengthen the time you have to response to at least 30 days, if not more. But for now, if you think something in you past could deny you your hazmat endorsement, it would be smart to start planning your response.

Will TSA send information about me to my employer?

The TSA has no plans to send any information about background checks or waiver proceedings to employers. Meanwhile, the only information a state will ever learn from TSA is whether the applicant passed or failed the background check. The only way an employer might learn if someone failed a background check is by pulling the driver’s motor vehicle record, as they are already required to do once a year, to see they no longer have a hazmat endorsement. The TSA intends to abide by the federal privacy laws that tightly restrict the uses of private information the federal government keeps on people.

Do you have suggestions to change the rule?

This is an interim final rule. That basically means that the agency is going to start implementing the rule immediately, but it is willing to take suggestions to change or improve the rule. For example, definitions for some of the disqualifying offenses need to be spelled out better. The waiver process needs to be formalized. Truckers need more than 15 days to respond to a TSA letter informing them of their disqualification. There is no guidance in the rule as to how the states will collect fingerprints and how the fingerprints will be stored and handled.

The public is welcome to ask questions, submit comments and suggest changes to these rules, and OOIDA plans to do all three. The deadline for submission of those comments is July 7, 2003. All comments should indicate the docket number for the rulemaking “TSA-2003-14610.”  Comments may be submitted by mail to Department of Transportation, Room Plaza 401, 400 Seventh Street, SW, Washington, DC  20590-0001 and on the Internet athttp://dms.dot.gov.

--by Paul Cullen Jr., The Cullen Law Firm PLLC

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