TSA, USDOT Issue Rules To Secure Transport Of Hazardous Goods

The Transportation Security Administration (TSA) and the U.S. Department of Transportation today moved to secure the transport of dangerous goods, including explosives, by issuing an interim final rule requiring background checks on commercial drivers certified to transport hazardous items.

“This is a landmark rule in that it establishes vital safeguards to protect our national transportation network from possible acts of terrorism,” said TSA Administrator Adm. James M. Loy. “The rules will further ensure the continued safe transport of a range of products – from chlorine to gasoline – crucial to the economic viability of the United States.”

This rule was required under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), which was enacted by Congress on October 25, 2001.

Under TSA’s rule, the roughly 3.5 million commercial drivers with hazardous material (Hazmat) endorsements now will be required to undergo a routine background records check that includes a review of criminal, immigration, and FBI records. Any applicant with a conviction (military or civilian) for certain violent felonies over the past seven years, or who has been found mentally incompetent, will not be permitted to obtain or renew the Hazmat endorsement. The checks also will verify that the driver is a U.S. citizen or a lawful permanent resident as required by the USA PATRIOT Act.

The Federal Motor Carrier Safety Administration’s (FMCSA) companion rule amends the Federal Motor Carrier Safety Regulations to prohibit States from issuing, renewing, transferring or upgrading a commercial driver’s license (CDL) with a Hazmat endorsement, unless the TSA has first conducted a background records check of the applicant and determined that the applicant does not pose a security risk warranting denial of the Hazmat endorsement. The FMCSA is also requiring states to establish a Hazmat endorsement renewal period of at least five years to insure that each holder of a Hazmat endorsement routinely and uniformly receives a security screening. The five-year renewal cycle was established in close coordination with TSA, based on its security risk determination requirements. The rule does not apply to applicants for CDLs without a Hazmat endorsement.

The Research and Special Programs Administration (RSPA) companion rule clarifies the regulatory authority for Hazmat, including explosives in transportation, to make clear that DOT regulations address security risks associated with such transportation. Shippers and transporters of Hazmat must comply with the security regulations of TSA, FMCSA and the U.S. Coast Guard, which are being incorporated into DOT’s Hazardous Materials Regulations. RSPA recently issued a final rule that requires shippers and transporters of Hazmat to implement plans and training to enhance security.

The list of disqualifying crimes was specifically designed to identify those most likely to endanger the nation’s transportation network and is comparable to background reviews applied to millions of airport and airline employees. Disqualifying crimes include acts of:

Terrorism Murder Assault with intent to murder

Espionage Sedition Kidnapping or hostage taking

Treason Rape or aggravated sexual abuse Extortion

Robbery Arson Bribery

Smuggling Immigration Violations RICO Violations

Unlawful possession, use, sale, distribution, or manufacture of an explosive, explosive device, firearm or other weapon;

Distribution of, intent to distribute, possession, or importation of a controlled substance;

Dishonesty, fraud, or misrepresentation, including identity fraud;

Crimes involving a severe transportation security incident;

Improper transportation of a hazardous material; or

Conspiracy or attempt to commit any of these crimes.

Only drivers applying for Hazmat endorsements will be affected by this rule. If disqualified to hold Hazmat endorsements, drivers may continue to transport all non-hazardous cargo. The rule provides an appeal process for cases in which the database information is incorrect, to ensure that no driver loses the Hazmat endorsement due to inaccurate records. Also, drivers who committed a disqualifying offense, were found to be mentally incompetent or were committed to a mental institution may apply for a waiver if they prove that they are rehabilitated and capable of transporting Hazmat safely.

TSA’s interim final rule is effective Monday, May 5, upon publication in the Federal Register. Applicants will be subject to a name-based FBI criminal history records check and a check of Federal databases. Beginning in 180 days or less, current drivers applying to renew or transfer their Hazmat endorsement and all new applicants must provide fingerprints. Under both the FMCSA and TSA rules, after 180 days, no state may issue, renew, or transfer a Hazmat license unless TSA has notified the State that the individual holding the endorsement does not pose a security threat.

The USA PATRIOT Act authorized the Secretary of Transportation to develop standards to require commercial drivers with Hazmat endorsements to undergo a criminal history background check. The Secretary delegated this authority to TSA, FMCSA and RSPA, which have worked closely with other federal agencies and industry associations to develop complementary rules to address the transportation of Hazmat via truck.

The interim final rules are available at http://dms.dot.gov/ by searching for docket numbers 11117 (FMCSA), 14982 (RSPA), and 14610 (TSA). Individuals and operators with questions about the new rule should contact TSA patriotact@dhs.gov.

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