TSA announces delay in driver background check

AFTER months of speculation, the Transportation Security Administration (TSA) announced a five-month delay in the fingerprint-based criminal history background investigations for those who have a commercial driver license (CDL) with a hazardous materials endorsement. The delay was announced as an interim final rule amendment on November 5, two days after the interim final rule was supposed to take effect.

Under the new TSA schedule, states should have programs in place for collecting criminal data and fingerprints by April 1, 2004 to continue issuing hazardous materials endorsements. States that can't meet the deadline must submit a plan to TSA outlining the fingerprint process that will be used and a timeline showing that the state program will be operational no later than December 1, 2004. TSA claims there will be no further delays.

The five-month postponement apparently was necessary because most states aren't ready to expand their existing criminal background investigation programs to the truck driver community. The agency says it received comments from 23 states requesting an extension so that they would have more time to garner needed state legislative changes, funds, and infrastructure. States say more time is needed to hire and train personnel to operate the fingerprinting equipment, and they are looking for federal funds to cover the costs.

TSA's initial desire to force a one-size-fits-all program also created problems and ruffled feathers at the state level, and the agency had to shift gears. Agency officials acknowledge in the interim final rule amendment that the states already have their own programs in place to collect fingerprints for criminal justice purposes.

Based on comments to the original interim final rule, a majority of states are working on processes needed to incorporate the fingerprint-background check requirements for hazardous materials endorsements into existing commercial driver license programs. Many states are close to final plans.

The states just want a minimum set of standards that allow them to make use of current resources and programs. To that end, TSA said in the interim final rule amendment that it will publish a notice of proposed rulemaking in the near future to propose minimum federal standards for fingerprint collection, criminal history adjudication, and an appeal process for hazardous materials endorsement applicants.

Fingerprints will have to be submitted in accordance with Federal Bureau of Investigation procedures to meet TSA requirements. TSA will use federal and international databases relating to terrorist activity when reviewing hazardous materials endorsement applications submitted by the states. TSA will decide whether to disqualify a driver.

Assuming TSA stands firm and the latest delay really is the last, there could be some serious problems in states that don't get their programs up and running. As of December 1, 2004, truck drivers in non-compliant states no longer would be able to renew their hazardous materials endorsements. The states also would lose federal highway funds.

TSA made it clear in the interim final rule amendment that the fingerprinting and background checks apply only to those drivers who are applying for, renewing, or transferring a hazardous materials endorsement. The states are not required to gather the information on drivers with endorsements that are currently valid.

Finally, not all aspects of the TSA program for hazardous material endorsements were delayed. Drivers and the fleets employing them must realize that there was no postponement for rules on self-reporting. These rules are in effect.

Specifically, a driver with a hazardous materials endorsement who knows that he or she has committed a disqualifying offense within the time periods defined in the rule must relinquish their hazardous materials endorsement. Further, hazardous materials endorsement drivers are required to self-report any disqualifying offenses that will show up during a fingerprint-based criminal record check.

The consequences of not complying with these rules can be serious — five years of imprisonment and fines up to $250,000.

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