{"operation":"document","citation":"03-0135","title":"American Trucking Associations — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2003-06-19","effective_on":null,"summary":"03-0135 response to American Trucking Associations concerning 172.802.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0135.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0135.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0135","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2003/030135.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\n400 Seventh St., S.W.\nWashington, D.C. 20590\nResearch and\nSpecial Programs\nAdministratior\nJUN 19 2003\nMr. Richard Moskowitz\nRef. No. 03-0135\nAssistant General Counsel and\nAmerican Trucking Associations\nRegulatory Affairs Counsel\n2200 Mill Road\nAlexandria, Virginia 22314\nDear Mr. Moskowitz:\nThis responds to your letter to Nancy Machado, Assistant Chief Counsel for Hazardous\nsecurity plan requirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-\nMaterials Safety, Research and Special Programs Administration, requesting clarification of the\n180) adopted under Docket HM-232. Your questions are paraphrased and answered below.\nSection 172.802(a)(2) of the HMR requires employers subject to the security plan\nregulation to confirm information provided by job applicants hired for positions that involve\naccess to and handling of hazardous materials covered by the security plan. The preamble to\nthe HM-232 final rule suggested that employers should make an effort to check information\nrelated to an applicant's recent employment history, references, and citizenship status. If\nemployer still hire the individual? What is the definition of \"recent\" as that term is used in the\ncircumstances make it impossible to verify an applicant's prior employment history, may an\nits efforts to confirm information provided by a prospective employee?\nHM-232 preamble? Does an employer have an obligation to document in writing the results of\nA1.\nSection 172.802(a)(2) requires an employer who is subject to the security plan\nregulation to implement measures to confirm information provided by applicants who are hired\nfor positions that involve access to and handling of hazardous materials covered by the security\nplan. The requirement is flexible. An employer may use its discretion to determine the\ninformation that will be checked as part of the application process and whether and to what\nextent its inability to confirm certain information will affect hiring decisions. Thus, if an\ns satisfied based on other information that an applicant does not pose a security risk, then th‹\nmployer is unable to confirm information about an applicant's recent employment history, bu\nemployer is not precluded from hiring the applicant. In this context, the employer may define\n\"recent employment history\" as it implements the personnel security measures required under\n$ 172.802(a)(2). An employer must include the measures it has implemented to confirn\nnformation provided by applicants in its written security plan, but an employer need no\n172.802\n030135\n\n<<<PAGE 2>>>\n\nQ2.\nRegulations developed by the Transportation Security Administration and the Federal\nMotor Carrier Safety Administration to implement the USA PATRIOT Act will ensure that all\ndrivers possessing a current hazardous materials endorsement to their commercial driver's\nlicense have successfully completed a Federal background check. If an employer's security\nplan includes a procedure to verify a prospective driver's hazardous materials endorsement,\nunder § 172.802(a)(2)?\ndoes that satisfy the employer's obligation to confirm information provided by job applicants\nA2. Yes.\n03. Many trucking companies utilize leased workers provided by a third-party agent to assist\nwith operations during peak freight periods. The individuals may perform work for the motor\ncarrier on only a few days each year and are not hired as employees of the motor carrier. Must\na motor carrier contirm background information for these leased workers?\nA3. If the leased workers utilized by the motor carrier will have access to or handle\nhazardous materials covered by a motor carrier's security plan, then the leased workers must be\nmust decide the question of who will confirm background information provided by job\napplicants.\ncontact this office.\nI hope this information is helpful. If you have further questions, please do not hesitate to\nSincerely,\nEdward T. Mazzullo\nDirector, Office of Hazardous\nMaterials Standards\n2712\n\n<<<PAGE 3>>>\n\nAMERICAN TRUCKING ASSOCIATIONS\nATA\n200 Mill Road * Alexandria YA V 33314-467\nOFFICE OF CHIEF COUNSEL\nU.S.\nDriving Trucking's Success\n2003 JUN 11 P 3:08\nLaw Department\nMay 23, 2003\nMs. Nancy Machado\nResearch and Special Programs Administration\nU.S. Department of Transportation\nOffice of Chief Counsel\nVia Facsimile: (202) 366-7041\n400 Seventh Street, S.W.\nWashington, DC 20500\nRE: Interpretation of HM-232 - HazMat Security Plans\nI am writing on behalf of the motor carrier members of the American Trucking\nAssociations (ATA) to request an informal opinion concerning the implementation of\nthe Research and Special Programs Administration's (RSPA) new requirement to\ndevelop hazardous materials security plans under 49 C/F.R: § 172.802.!\nATA is the trade association representing the American trucking industry? As\nthe national representative of the trucking industry, ATA is interested in matters\naffecting the nation's trucking fleet, including the implementation of the new security\nrequirements affecting the transportation of hazardous materials.\nOur members have raised the following issues with respect to the new security\nrequirements:\nof hazardous materials to develop a security plan that inter alia addresses personnel\nOne aspect of HM-232 requires motor carriers transporting placarded amounts\nsecurity. The regulation specifically requires these motor carriers to implement\n\"measures to confirm information provided by job\napplicants hired for positions that involve access to and\n....:\n' 68 Federal 'Register 14510 (March 25, 2003) (hereinafter \"Final, Rule\" or \"HM-232).\ncarrier operation.\n(703) 838-1865 * Fax: (703) 683-3226\n\n<<<PAGE 4>>>\n\nhanding of hazardous materials covered by the security\nWe read the preamble to the Final Rule as providing motor carriers with discretion to\ndetermine the information to be confirmed:\nWe do not expect companies to confirm all of the information that\nTowever, employers should make an effort to check informatior\na job applicant may provide as part of the application process.\nrelated to an applicant's recent employment history, references,\nnor and have at on (aion to documen in writing the a prospect ive\nemployee?\nThe recent implementation of the USA PATRIOT Act now ensures that all\ndrivers possessing a current hazardous materials endorsement to their CDL have been\nthrough a federal background check. Question 4: Does RSPA believe that a security\nplan that includes a procedure to verify a prospective driver's hazardous materials\nendorsement is sufficient to satisfy the motor carrier's obligation to confirm\ninformation under the personnel security component of the security plan as described in\n49 CFR § 172.802(a)(1)?\nThe new rule requires companies to\nconfirm information provided by job applicants hired for\nmaterials covered by the security plan.\npositions that involve access to and handling of hazardous\nemployees of the motor carrier. Question 5: Please confirm our understanding that the\n3 49 C.F.R. § 172.802(a)(1) (emphasis added).\n* 68 Federal Register at 14516/2.\n$ 49 C.F.R. $. 172.802(a)L).\n\n<<<PAGE 5>>>\n\n•\nFinal Rule does not create a new obligation for motor carrier's to confirm background\ninformation for these leased workers.\n*\n*\n*\n*\n*\nAs you know, the requirement to implement a hazardous materials security plan\nregulatory deadline, we would appreciate your opinion on the questions raised herein as\nunder HM-232 must be met by September 2003. Because of the need to comply with this\nsoon as possible. If you require additional information on these issues, please call me at\n703-838-1910.\nRespectfully submitted,\nAssistant General Counsel\nRegulatory Affairs Counsel","truncated":false,"body_characters":7694}