American Trucking Associations — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department 400 Seventh St., S.W. Washington, D.C. 20590 Research and Special Programs Administratior JUN 19 2003 Mr. Richard Moskowitz Ref. No. 03-0135 Assistant General Counsel and American Trucking Associations Regulatory Affairs Counsel 2200 Mill Road Alexandria, Virginia 22314 Dear Mr. Moskowitz: This responds to your letter to Nancy Machado, Assistant Chief Counsel for Hazardous security plan requirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171- Materials Safety, Research and Special Programs Administration, requesting clarification of the 180) adopted under Docket HM-232. Your questions are paraphrased and answered below. Section 172.802(a)(2) of the HMR requires employers subject to the security plan regulation to confirm information provided by job applicants hired for positions that involve access to and handling of hazardous materials covered by the security plan. The preamble to the HM-232 final rule suggested that employers should make an effort to check information related to an applicant's recent employment history, references, and citizenship status. If employer still hire the individual? What is the definition of "recent" as that term is used in the circumstances make it impossible to verify an applicant's prior employment history, may an its efforts to confirm information provided by a prospective employee? HM-232 preamble? Does an employer have an obligation to document in writing the results of A1. Section 172.802(a)(2) requires an employer who is subject to the security plan regulation to implement measures to confirm information provided by applicants who are hired for positions that involve access to and handling of hazardous materials covered by the security plan. The requirement is flexible. An employer may use its discretion to determine the information that will be checked as part of the application process and whether and to what extent its inability to confirm certain information will affect hiring decisions. Thus, if an s satisfied based on other information that an applicant does not pose a security risk, then th‹ mployer is unable to confirm information about an applicant's recent employment history, bu employer is not precluded from hiring the applicant. In this context, the employer may define "recent employment history" as it implements the personnel security measures required under $ 172.802(a)(2). An employer must include the measures it has implemented to confirn nformation provided by applicants in its written security plan, but an employer need no 172.802 030135#

Page 2Q2. Regulations developed by the Transportation Security Administration and the Federal Motor Carrier Safety Administration to implement the USA PATRIOT Act will ensure that all drivers possessing a current hazardous materials endorsement to their commercial driver's license have successfully completed a Federal background check. If an employer's security plan includes a procedure to verify a prospective driver's hazardous materials endorsement, under § 172.802(a)(2)? does that satisfy the employer's obligation to confirm information provided by job applicants A2. Yes. 03. Many trucking companies utilize leased workers provided by a third-party agent to assist with operations during peak freight periods. The individuals may perform work for the motor carrier on only a few days each year and are not hired as employees of the motor carrier. Must a motor carrier contirm background information for these leased workers? A3. If the leased workers utilized by the motor carrier will have access to or handle hazardous materials covered by a motor carrier's security plan, then the leased workers must be must decide the question of who will confirm background information provided by job applicants. contact this office. I hope this information is helpful. If you have further questions, please do not hesitate to Sincerely, Edward T. Mazzullo Director, Office of Hazardous Materials Standards 2712#

Page 3AMERICAN TRUCKING ASSOCIATIONS ATA 200 Mill Road * Alexandria YA V 33314-467 OFFICE OF CHIEF COUNSEL U.S. Driving Trucking's Success 2003 JUN 11 P 3:08 Law Department May 23, 2003 Ms. Nancy Machado Research and Special Programs Administration U.S. Department of Transportation Office of Chief Counsel Via Facsimile: (202) 366-7041 400 Seventh Street, S.W. Washington, DC 20500 RE: Interpretation of HM-232 - HazMat Security Plans I am writing on behalf of the motor carrier members of the American Trucking Associations (ATA) to request an informal opinion concerning the implementation of the Research and Special Programs Administration's (RSPA) new requirement to develop hazardous materials security plans under 49 C/F.R: § 172.802.! ATA is the trade association representing the American trucking industry? As the national representative of the trucking industry, ATA is interested in matters affecting the nation's trucking fleet, including the implementation of the new security requirements affecting the transportation of hazardous materials. Our members have raised the following issues with respect to the new security requirements: of hazardous materials to develop a security plan that inter alia addresses personnel One aspect of HM-232 requires motor carriers transporting placarded amounts security. The regulation specifically requires these motor carriers to implement "measures to confirm information provided by job applicants hired for positions that involve access to and ....: ' 68 Federal 'Register 14510 (March 25, 2003) (hereinafter "Final, Rule" or "HM-232). carrier operation. (703) 838-1865 * Fax: (703) 683-3226#

Page 4handing of hazardous materials covered by the security We read the preamble to the Final Rule as providing motor carriers with discretion to determine the information to be confirmed: We do not expect companies to confirm all of the information that Towever, employers should make an effort to check informatior a job applicant may provide as part of the application process. related to an applicant's recent employment history, references, nor and have at on (aion to documen in writing the a prospect ive employee? The recent implementation of the USA PATRIOT Act now ensures that all drivers possessing a current hazardous materials endorsement to their CDL have been through a federal background check. Question 4: Does RSPA believe that a security plan that includes a procedure to verify a prospective driver's hazardous materials endorsement is sufficient to satisfy the motor carrier's obligation to confirm information under the personnel security component of the security plan as described in 49 CFR § 172.802(a)(1)? The new rule requires companies to confirm information provided by job applicants hired for materials covered by the security plan. positions that involve access to and handling of hazardous employees of the motor carrier. Question 5: Please confirm our understanding that the 3 49 C.F.R. § 172.802(a)(1) (emphasis added). * 68 Federal Register at 14516/2. $ 49 C.F.R. $. 172.802(a)L).#

Page 5• Final Rule does not create a new obligation for motor carrier's to confirm background information for these leased workers. * * * * * As you know, the requirement to implement a hazardous materials security plan regulatory deadline, we would appreciate your opinion on the questions raised herein as under HM-232 must be met by September 2003. Because of the need to comply with this soon as possible. If you require additional information on these issues, please call me at 703-838-1910. Respectfully submitted, Assistant General Counsel Regulatory Affairs Counsel#