Background Checks, Credentials And Fees In Flux For Hazmat Drivers

The federal government is trying to streamline its requirements for background checks and credentials for drivers of vehicles carrying hazardous materials. But the effort to date has been frustrated by conflicts among various federal agencies, questions of federal versus state jurisdiction, and ineffective congressional oversight.

The TSA and the U.S. Coast Guard have published a joint proposed rulemaking that would require all merchant mariners and other individuals who need unescorted access to secure port vessel areas to have a Transportation Worker Identification Credential (TWIC). Under the Maritime Transportation Security Act, the Department of Homeland Security is required to issue a biometric security credential to individuals seeking access to port areas. TSA plans to follow the same process for issuing credentials as they use with hazardous materials endorsements for commercial motor vehicle drivers, but will use biometric technology for identification.

TSA proposes amending its security threat assessment standards that currently apply to commercial drivers authorized to transport hazardous materials in commerce to also apply to merchant mariners and workers who require unescorted access to secure areas on vessels and at port facilities. These proposed amendments also relate to the notification an employer receives when an employee who holds a Hazardous Materials Endorsement (HME) or a TWIC is determined to pose a security threat. TSA also is proposing regulations dealing with the enrollment of port workers into the TWIC program.

The TWIC is eventually supposed to apply to transportation workers in all modes—truck, rail, air, maritime, etc. TSA is implementing the TWIC for port access first, but using the standards established for hazmat truck drivers. The transition falls short of seamless.

As to employer notification, TSA previously requested comment on methods to notify an employer that a particular driver’s hazmat endorsement is revoked or the application for a HME is denied. TSA anticipated that it would be difficult to locate a driver’s employer because drivers tend to change employers frequently and may work for several employers at one time. TSA proposed requiring each employer to maintain a current list of hazmat-endorsed driver employees on a secure Web site that TSA could access for notification purposes, and employers could amend as employees change jobs.

In its current proposal, TSA intends to amend the HME and TWIC application requirements in two ways. First, TSA proposes to add a statement to the application for an HME or TWIC acknowledging that TSA may notify the applicant’s employer if TSA determines that the applicant poses a security threat. The applicant must acknowledge receipt of this statement. Second, TSA proposes to amend the rule text to state that TSA will notify an applicant’s employer, where appropriate, when issuing final determinations of threat assessment or immediate revocations.

Commercial truck drivers delivering or retrieving goods at the port typically have unescorted access to secure areas and so they would be required to have a TWIC. As envisioned and currently proposed in this rule, commercial drivers who hold an HME and have completed TSA’s security threat assessment under 49 CFR part 1572 would not be required to undergo a new threat assessment for TWIC until their HME threat assessment expires. These drivers would be required to provide a biometric for use on the TWIC and pay for enrollment services, credential costs and appropriate program support costs.

Finally, TSA is proposing a fee, as authorized under the Department of Homeland Security Appropriations Act of 2004, to pay for the costs related to the issuance of the TWIC under this rule. In this rule, TSA proposes to establish new user fees:

  1. The Information Collection and Credential Issuance fee, estimated to range from $45-$65.
  2. The Threat Assessment and Credential Production fee, which will be $62, or $50 for applicants who have already received a comparable threat assessment from DHS, including those for a Merchant Mariner License (MML), Merchant Mariners Document (MMD), Hazardous Materials Endorsement (HME), and Free and Secure Trade (FAST) card holders.
  3. The fee for replacement of a lost, damaged or stolen TWIC, which will be $36 for all TWIC holders.

In addition, TSA will collect the FBI Fee for the criminal history records checks in the TWIC threat assessment process and forward the fee to the FBI. The current FBI Fee is $22. If the FBI increases that fee in the future, TSA will collect the increased fee. Therefore, total TWIC fees are expected to range from $95 (MML, HME and FAST card holders already vetted by DHS) to $149 for all other applicants.

Gases and Welding Distributors Association
Meet the Author
GAWDA Government Affairs and Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC, in Washington, D.C. Members can reach him at 202-223-3040 and at rpschweitzer@rpslegal.com.