Interpretation Response #03-0135 ([American Trucking Associations] [Mr. Richard Moskowitz])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date: 06/19/2003

Company Name: American Trucking Associations

Individual Name: Mr. Richard Moskowitz

Location State: VA Country: US

View the Interpretation Document

Response text:

Jun 19, 2003

Mr. Richard Moskowitz                Reference No. 03-0135
Assistant General Counsel and
Regulatory Affairs Counsel
American Trucking Associations
2200 Mill Road
Alexandria, Virginia 22314

Dear Mr. Moskowitz:

This responds to your letter to Nancy Machado, Assistant Chief Counsel for Hazardous Materials Safety, Research and Special Programs Administration, requesting clarification of the security plan requirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171¬180) adopted under Docket HM-232. Your questions are paraphrased and answered below.

Ql. 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 circumstances make it impossible to verify an applicant's prior employment history, may an employer still hire the individual? What is the definition of "recent” as that term is used in the HM-232 preamble? Does an employer have an obligation to document in writing the results of its efforts to confirm information provided by a prospective employee?

AI. 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 employer is unable to confirm information about an applicant's recent employment history, but is satisfied based on other information that an applicant does not pose a security risk, then the 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 confirm information provided by applicants in its written security plan, but an employer need not document the results of it efforts to confirm information for specific applicants.

Q2. 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, does that satisfy the employer's obligation to confirm information provided by job applicants under § 172.802(a)(2)?

A2. Yes.

Q3. . 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 confirm 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 covered by the security plan. It is the responsibility of the motor carrier to ensure that the requirements of its security plan concerning personnel security and security training are met. For leased workers, the motor carrier and the third-party agent who provides the leased workers must decide the question of who will confirm background information provided by job applicants.

I hope this information is helpful. If you have further questions, please do not hesitate to contact this office.

Sincerely,

Edward T. Mazzullo
Director, Office of Hazardous Materials Standards

Regulation Sections