[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
REFORMING HAZMAT TRUCKING SECURITY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ECONOMIC
SECURITY, INFRASTRUCTURE PROTECTION, AND CYBERSECURITY
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 1, 2005
__________
Serial No. 109-52
__________
Printed for the use of the Committee on Homeland Security
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COMMITTEE ON HOMELAND SECURITY
Peter T. King, New York, Chairman
Don Young, Alaska Bennie G. Thompson, Mississippi
Lamar S. Smith, Texas Loretta Sanchez, California
Curt Weldon, Pennsylvania Edward J. Markey, Massachusetts
Christopher Shays, Connecticut Norman D. Dicks, Washington
John Linder, Georgia Jane Harman, California
Mark E. Souder, Indiana Peter A. DeFazio, Oregon
Tom Davis, Virginia Nita M. Lowey, New York
Daniel E. Lungren, California Eleanor Holmes Norton, District of
Jim Gibbons, Nevada Columbia
Rob Simmons, Connecticut Zoe Lofgren, California
Mike Rogers, Alabama Sheila Jackson-Lee, Texas
Stevan Pearce, New Mexico Bill Pascrell, Jr., New Jersey
Katherine Harris, Florida Donna M. Christensen, U.S. Virgin
Bobby Jindal, Louisiana Islands
Dave G. Reichert, Washington Bob Etheridge, North Carolina
Michael McCaul, Texas James R. Langevin, Rhode Island
Charlie Dent, Pennsylvania Kendrick B. Meek, Florida
Ginny Brown-Waite, Florida
______
Subcommittee on Economic Security, Infrastructure Protection, and
Cybersecurity
Daniel E. Lungren, California, Chairman
Don Young, Alaska Loretta Sanchez, California
Lamar S. Smith, Texas Edward J. Markey, Massachusetts
John Linder, Georgia Norman D. Dicks, Washington
Mark E. Souder, Indiana Peter A. DeFazio, Oregon
Mike Rogers, Alabama Zoe Lofgren, California
Stevan Pearce, New Mexico Sheila Jackson-Lee, Texas
Katherine Harris, Florida James R. Langevin, Rhode Island
Bobby Jindal, Louisiana Bennie G. Thompson, Mississippi
Peter T. King, New York (Ex (Ex Officio)
Officio)
(II)
C O N T E N T S
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Page
STATEMENTS
The Honorable Daniel E. Lungren, a Representative in Congress
From the State of California, and Chairman, Subcommittee on
Economic Security, Infrastructure.............................. 1
The Honorable Loretta Sanchez, a Representative in Congress From
the State of California, and Ranking Member, Subcommittee on
Economic Security, Infrastructure Protection and Cybersecurity. 3
The Honorable Sheila Jackson-Lee, a Representative in Congress
From the State of Texas........................................ 40
The Honorable John Linder, a Representative in Congress From the
State of Georgia............................................... 39
Witnesses
Panel I
Mr. Gary Brown, General Counsel, Pyro Sectaculars:
Oral Statement................................................. 18
Prepared Statement............................................. 19
Mr. Michael Laizure, Owner-Operator, Time Critical Ordinance
Transport:
Oral Statement................................................. 12
Prepared Statement............................................. 13
Mr. Scott Madar, Assistant Director, Safety and Health
Department, International Brotherhood of Teamsters:
Oral Statement................................................. 28
Prepared Statement............................................. 30
Ms. Linda Lewis-Pickett, President and CO, American Association
of Motor Veh icle Administrators:
Oral Statement................................................. 24
Prepared Statement............................................. 26
Mr. Stephen Russell, Chairman and CEO, Celadon Group Inc.:
Oral Statement................................................. 4
Prepared Statement............................................. 6
Panel II
Mr. Robert McGuire, Associate Administrator, Pipeline and
Hazardous Materials Safety Administration, Department of
Transportation:
Oral Statement................................................. 56
Prepared Statement............................................. 57
Mr. Justin Oberman, Assistant Director, Transportation Threat
Assessment and Credentialing, Transportation Security
Administration, Department of Homeland Security:
Oral Statement................................................. 48
Prepared Statement............................................. 50
Appendix
Letter from Mr. Scott Madar...................................... 69
REFORMING HAZMAT TRUCKING SECURITY
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Tuesday, November 1, 2005
House of Representatives,
Committee on Homeland Security,
Subcommittee on Economic Security,
Infrastructure Protection, and Cybersecurity,
Washington, DC.
The subcommittee met, pursuant to call, at 2:02 p.m., in
Room 311, Cannon House Office Building, Hon. Daniel Lungren
[chairman of the subcommittee] presiding.
Present: Representatives Lungren, Linder, Sanchez, and
Jackson-Lee.
Mr. Lungren. [Presiding.] The Committee on Homeland
Security, Subcommittee on Economic Security, Infrastructure,
Protection and Cybersecurity will come to order.
The subcommittee is meeting today to hear testimony on
reforming the HAZMAT trucking security program.
I would like to welcome everybody to this hearing. Today,
we will review the current TSA security program for
transporting hazardous materials by truck and the impact of
these regulations on the trucking industry.
Four years ago, Congress mandated security threat
assessments of all individuals who operate a motor vehicle
under the Department of Transportation's HAZMAT program. It is
extremely important that we prevent dangerous material that
could be used in a terrorist event from falling into the wrong
hands, and I am a strong supporter of this program.
Yet I am concerned that the current approach is neither the
most effective nor efficient manner to address this very real
program. There are over 4,000 substances currently classified
as a hazardous material for a variety of environmental,
corrosive, health, safety or security reasons. They include
items such as nail polish remover, corn syrup, dish detergent,
and alcohol spirits.
Drivers transporting these materials must undergo the same
rigorous background checks as those transporting chlorine and
phosphine. While the vast majority of HAZMAT has zero risk of
being used in a terrorist incident, current law subjects 90
percent of the 3 million commercial truck drivers to this
burdensome requirement.
Only 5 percent of HAZMAT drivers have completed their
assessments. And already 672 men and women have been denied
their HAZMAT endorsement. At that rate, the program could put
as many as 15,000 truckers out of work.
Furthermore, there are a number of substances that do pose
significant risks that appear to be exempt from the DOT HAZMAT
rules, including certain quantities of black powder explosives
and ammonium nitrate for farming purposes.
Recent terrorist incidents worldwide revealed an increased
use of explosives made from common household products. These
homemade explosives can be as powerful as commercially
available explosives and are, in this regard, impossible to
regulate.
Many have argued that we need to take a step back and
refocus this program on the most dangerous and most likely
substances to be used by terrorists to inflict casualties and
economic damage, such as toxic-by-inhalation materials, certain
classes of explosives and radiological materials. I hope today
that we begin a discussion as to whether that makes sense and,
if so, how best to do it.
On a side note, I know there are many security issues
involved in the different ways that we transport hazardous
materials. But the focus of this hearing and the expertise of
these panelists is on the HAZMAT endorsement for the trucking
industry.
The issue in and of itself is complex. And I would hope
that we can use this time today to really delve into this and
explore some different options for this program. The goal of
today's hearing is to ensure that the efforts undertaken by DHS
are not spread so thin that we are left with inadequate
security in the areas that need it most.
I would like to thank our witnesses for joining us today. I
also appreciate our witnesses' indulgence in today's panel
structure. While it is a bit of a departure from normal
protocol, I believe that we in the federal government have a
responsibility to listen to and respond to the concerns of some
of the stakeholders.
And on that regard, I am going to say something I did not
intend to say originally. But I have been informed that Mr.
Brigham McCown, the acting administrator and deputy
administrator, Pipeline and Hazardous Material Safety
Administration, Department of Transportation, who was scheduled
to testify on the second panel has indicated to us that he does
not desire to testify on the second panel, in part because he
believes that it is his right to be on the first panel and that
it is somehow inappropriate for us to organize hearings as we
wish to organize them.
And we were told in the last week that if he were not on
the first panel that he might not show up. And now we have been
told that he will not show up and somebody else is being sent
here. The reason articulated to us through their office was
that, ``You know, the press may not stay for the second panel.
And if the press is not here for the second panel, I am not
going to show up.''
Well, I did not return to Congress to be told by someone in
the administration that they are the ones that control the way
we do oversight. I have dealt with criminals on death row, and
I am not going to have somebody over in the Department of
Transportation tell me how to deal with this oversight
responsibility I have.
Oversight means the legislative branch of the government
takes oversight responsibility over the executive branch, and
to have somebody in the executive branch tell me how to run my
hearing, because they do not think the press is going to be
here to hear what they have to say and therefore they are not
going to show up, is totally unacceptable.
And I am shocked that a department that is headed up by a
former member of Congress would treat Congress in this way.
Nobody in the administration is going to tell us how to run our
hearings over here.
And the only reason I am saying it right now is that
because Mr. McCown was concerned that the press might not hear
what goes on in the second panel. So I want to make sure
everybody, including the press, hears my response to the word I
got from the administration, the Department of Transportation.
Oh, yes. This committee does not have prime responsibility
for DOT, we were told by representatives of DOT. Well, Congress
made its decision that we share responsibility in this regard.
And I am not going to have somebody over in DOT decide when and
where they are going to show up when they have been asked to.
We do have the right of subpoena in this Congress, and we
will seek it, if that is necessary. But this kind of high-
handed nonsense is not going to be accepted by this committee.
And I do not care whether it is a Republican or Democratic
administration, this is unacceptable.
And I hope those who are here from DOT will deliver that
message directly to Mr. McCown and the others who happen to
think that they rule the Congress. They do not.
If he wishes to run for Congress and be here a few years
and become a chairman, then he could run the hearings the way
he wants to run the hearings. But last I checked, he had not
announced his candidacy for any office.
And now I would recognize my ranking member, Ms. Sanchez,
for any comments she might have.
Ms. Sanchez. Thank you, Mr. Chairman. I appreciate you
getting tough on these guys. Thank you.
There are over 11 million commercial drivers, licensed
(CDL) holders, on record and an estimated 2.7 million CDL
holders with a hazardous materials endorsement. These drivers
transport more than 3 billion tons of regulated hazardous
materials in the United States each year, amounting to more
than 800,000 hazardous material shipments every day.
Ensuring that the secure transportation of this hazardous
material happens needs to be a priority of this nation. At the
same time, our country's economic health depends on the
continuous flow of commerce. So a successful risk management
strategy is necessary to ensure that the actions taken to
secure the nation's transportation system are properly
balanced.
I have some questions about the aspects of DHS risk
management strategy with regards to hazardous material.
I question whether all of the disqualifying crimes that
would prevent a commercial trucker from receiving a hazardous
materials endorsement are an accurate indication of whether
someone would be a terrorism security risk to the United
States. The current list of disqualifying crimes seems to
include writing bad checks.
Similarly, I have concerns about how broadly the
Transportation Security Administration defines a
``transportation security incident.'' This is especially
important, as a driver can be permanently disqualified from
obtaining a hazardous material endorsement if he or she has
committed a crime involving a transportation security incident.
I have also heard reports that there are not enough
fingerprint locations and that these locations are not open at
convenient times for truckers to go and get that done.
So I look forward to our first panel. Thank you, lady and
gentleman, for being before us.
I look forward also to Mr. Oberman, with respect to the
October 1st report, mandated under the Safe, Accountable,
Flexible, Efficient Transportation Equity Act, a legacy for
uses that is supposed to include information about the adequacy
of fingerprinting locations, personnel and resources.
I am also interested in TSA's efforts to minimize the
redundancy of background checks for transportation workers. We
should not have to undergo multiple background checks by
different agencies within the same and different departments. I
think consolidating our resources and doing it once is enough,
and it would also save taxpayers' money.
Finally, I want to know when the Transportation Security
Administration is going to develop an overall plan for
hazardous material. Hazardous material endorsements should only
be one part of this plan.
So I thank you all for being here today. I look forward to
hearing from everyone today.
And I yield back. Thank you, Mr. Chairman.
Mr. Lungren. I thank the gentlelady.
We are pleased to have two distinguished panels of
witnesses before us today on this important subject. And let me
remind the witnesses that their entire written statement will
appear for the record.
Also, other members of the committee are reminded that
opening statements may be submitted for the record.
We ask that, due to the number of witnesses on our panel
today, that you would please strive to limit your oral
testimony to about 5 minutes. We will have a clock here. And
when the red appears, that means 5 minutes is up.
We will also allow each panel to testify before questioning
any of the witnesses, that is to receive the testimony from all
of you on the first panel before we would begin our round of
questions.
I would call the first panel together and recognize Mr.
Stephen Russell, the chairman and CEO of Celadon Group, to
testify on behalf of the American Trucking Association.
STATEMENT OF STEPHEN RUSSELL
Mr. Russell. Thank you very much. And I appreciate the
opportunity. Thanks for inviting me to testify today on behalf
of the American Trucking Association on the subject of
reforming HAZMAT security.
My name is Steve Russell. I am chairman and CEO of Celadon
Group, a publicly traded truckload carrier headquartered in
Indianapolis, with operations throughout the U.S., Canada and
Mexico. We operate approximately 700 tractors, 7,200 trailers,
and have roughly 2,400 employee drivers and owner-operators in
the U.S.
And I have submitted my written testimony for including in
the record.
Celadon won the national large-fleet first place award for
safety in 2002 and again for 2004, the most recent year it was
awarded. Although not required, we take the extra step of
conducting criminal history record checks on all of our drivers
and do not hire trainees, only experienced drivers.
We do this to ensure that we are putting quality people
behind the wheel on the road. Our trucking company is committed
to safety and security, as are my peers in the industry.
Today, security spotlights has increasingly focused on
transportation of HAZMAT by truck. The Patriot Act mandated
background checks of truck drivers with HAZMAT endorsements.
And there is a critical problem with the approach to the
regulation of the security of HAZMAT transportation by truck,
namely a failure to align the scope of regulation with the
security objective.
My testimony will focus on the overreaching and burdensome
nature of the HAZMAT background check and, secondly, the nature
of goods that are defined as HAZMAT.
Today, there are approximately 2.7 million truck drivers
that have HAZMAT certification. In the new regulations, to
recertify, drivers are required to provide their fingerprints
in approved locations and take at least one more trip to obtain
that new certification.
Today, all of Celadon's drivers are required to have been
HAZMAT-certified, even though less than 2 percent of our
movements involved hazardous material. After months of
requesting our drivers to consent to the new process, we
estimate that only 10 percent will choose to be recertified.
Accordingly, we now no longer require our drivers to be HAZMAT-
certified.
From an industry standpoint, in my role as chairman of the
homeland security committee of the American Trucking
Association, I have talked to many of my peers. They are
experiencing the same reluctance on the part of drivers to
consent to fingerprinting and consent to the process.
The cost, about $100, plus the loss of two or three days of
pay at a typical pay rate of about $200 a day is something the
drivers simply do not want to do.
When the existing 2.7 million HAZMAT certificates expire,
we believe a substantial majority of the drivers will not
reapply. And that is the cost of shippers of HAZMAT, which
today includes the products that you outlined, such as soft
drink syrup, nail polish remover, et cetera, will soar.
Shortage of qualified drivers will require increased dead-
heading to service the HAZMAT suppliers, which will add
significantly to the cost to the HAZMAT shippers.
The process of recertification needs to exclude
fingerprinting and should be done at the federal, rather than
the state, level. We understand that the TSA has proposed name-
based screening for the 63,000 workers who handle air cargo.
The terrorist databases are checked by name, not
fingerprints. Likewise, criminal records can be checked using
names, as evidenced by the successful implementation of the
Brady check system for gun buyers.
The second issue relates to what is defined as HAZMAT.
Lubricants, paint, batteries, matches, perfumes, et cetera, are
now defined as HAZMAT. They are not weaponable, but rather may
require clean-up procedures in the event of accidental release.
Not to be facetious, but the only way paint could be lethal is
if it is ingested, and it certainly cannot be used to make a
weapon of mass destruction.
As required by Congress, DOT in 2004 came up with a special
list of HAZMAT and certain quantities that would, in fact,
require a carrier hauling these materials to obtain a federal
HAZMAT permit. We agree with this approach. And while the
trucking industry understands that the federal HAZMAT permit is
not exhaustive, it is the right approach and a good start from
which to base future HAZMAT truck transportation security
regulations.
The HAZMAT background check requirement should be limited
to drivers who carry security-sensitive HAZMAT, such as the
federal HAZMAT permit list. Doing so would provide relief to a
large number of drivers that haul only HAZMAT that cannot be
used a terrorist weapon and the shippers of those non-
weaponable HAZMAT materials.
By DOT count, the materials and the quantities specified in
the federal HAZMAT permit list represent an estimated four-
tenths of 1 percent of the 800,000 average daily HAZMAT
shipments, or roughly 3,200 shipments a day.
I thank you for the opportunity to testify today. And I
hope Congress and the industry can work together to bring about
a rational approach to achieving our mutually interested shared
security objective.
Thank you, sir.
[The statement of Mr. Russell follows: ]
Prepared Statement of Stephan Russell
Mr. Chairman and members of the Subcommittee, thank you for
inviting me to testify today on behalf of American Trucking
Associations, Inc. (``ATA'') on the subject of hazmat trucking
security. My name is Steve Russell. I am Chairman and CEO of Celadon
Group, Inc., headquartered in Indianapolis, Indiana, a truckload
carrier with approximately 2,700 power units, 7,200 trailers and 2,400
employee-drivers and independent contractors operating nationwide. My
company has won the Truckload Carriers Association's National Fleet
Safety Award for large trucking fleets in 2002 and 2004 (the most
recent prize to be awarded). I am here on behalf of ATA, a federation
of motor carriers, state trucking associations, and national trucking
conferences created to promote and protect the interests of the
trucking industry. ATA's membership includes more than 2,000 trucking
companies and industry suppliers of equipment and services. Directly
and through its affiliated organizations, ATA encompasses over 34,000
companies and every type and class of motor carrier operation.
Overview:
According to the U.S. Department of Transportation, there are over
800,000 shipments of hazardous materials (``hazmat'') by truck every
day. The 1997 Vehicle Inventory and Use Survey found that 8.2 percent
of the nation's licensed or registered large trucks transported hazmat
at some point during the year. Finally, the 2002 Commodity Flow Survey
estimated that hazmat accounted for 14.8 percent of all tons
transported by trucks. Despite this, trucks transporting hazmat account
for just roughly 4 percent of large truck crashes. Additionally, to
date, no truck belonging to a registered carrier and transporting
hazmat has been used in a terrorist attack in the United States.
From the above, it is clear that the trucking industry has safely
and securely transported hazmat for decades. In the midst of today's
heightened security environment, the trucking industry continues to
play its part in ensuring the secure transportation of all goods,
including hazmat. However, the trucking industry has borne the brunt of
government-imposed hazmat transportation security programs that are
over-reaching and are not properly aligned with the primary objective
of preventing a terrorist from using a large truck hauling hazmat to do
catastrophic harm.
In this testimony, I will focus on the security threat assessment
requirement for hazmat-endorsed drivers that was enacted by Congress in
October 2001 as part of the USA PATRIOT Act (hereinafter ``the hazmat
background check'') and further implemented by the Transportation
Security Administration (``TSA'') as a glaring example of government's
failure to adopt a risk-based approach to security regulation. Yet the
lessons learned from the hazmat background check program and the need
for a risk-based approach apply equally to current and future
regulations concerning the security of hazmat transportation. The
hazmat background check, although just recently fully implemented, is
hurting trucking companies and their drivers. Drivers are incurring the
higher than necessary costs associated with the hazmat background check
and bearing the costs associated with taking a day(s) off work to
submit fingerprints at approved locations. Companies are beginning to
see their numbers of hazmat-endorsed drivers go down, which diminishes
their ability to haul hazmat. As set forth further in this testimony,
these negative impacts can be avoided while still preserving the
security objective.
A misconception of what constitutes hazmat seems to be at the heart
of the problem. A number of everyday commodities such as paint,
perfume, nail polish, soft drink syrup, batteries, and matches are
considered hazmat and require placarding--and thus a hazmat endorsement
to the commercial driver's license (``CDL'') to transport them by
truck--when transported in certain threshold quantities. These products
do not represent any more of a threat to our homeland than carrying a
truckload of bread. They cannot be used as weapons of mass destruction
and are unlikely to be attractive to terrorists. Nevertheless, a driver
seeking to transport these products must now undergo an expensive,
time-consuming fingerprint-based background check. As presently
administered, the background check would apply to the 2.7 million
hazmat endorsement holders--well over two-thirds of the estimated
active over-the-road truck drivers.
The trucking industry has long been actively engaged in promoting
security. It is in our interest from both a customer relations
perspective and a financial bottom line perspective. At my company,
even though it is not required, we do criminal history record checks on
our drivers using third party services that available records from
pertinent jurisdictions. However, the imposition of burdensome and
costly programs governing the transportation of hazmat, such as the
hazmat background check program, threatens to erode the industry's
ability to continue to deliver the goods that the consumer expects. I
urge this Congress to approach homeland security from a true risk-based
viewpoint in order to ensure that our Nation's commerce may flow as
freely as possible.
A. The hazmat background check program has been marred by a number
of bad decisions.
1. The hazmat background check program should not have been linked
to the CDL/hazmat endorsement.
Congress was rightly concerned about the security of transportation
of certain hazmat. Admittedly, some hazmat could be readily used to
cause widespread harm; however an overwhelming majority of the hazmat
transported does not pose a significant security risk. By tying the
security program to the issuance, transfer or renewal of the hazmat
endorsement to the CDL, Congress greatly overshot the mark. As a
result, drivers who haul ordinary freight and hazmat that cannot be
used as a weapon must expend significant monies and time to submit
fingerprints for a check against databases that are equally searchable
using names and other unique identifying information. As discussed
further in section B.2 of this testimony, Congress has previously
identified a list of hazmat deserving of special consideration. In my
business, we look at every activity we engage in to determine whether
it is cost-effective. It does not seem that securing the transportation
of hazmat that can do no real harm provides benefits remotely
commensurate with the costs it imposes on drivers and/or carriers.
Materials that have been designated as hazmat by the Secretary of
Transportation have been so designated due to characteristics that
require special consideration while handling or during clean-up in the
event of an accidental release. Some of these materials are hazardous
only when ingested or touched, others are hazardous to the environment
or are ignitable but would not be attractive to a terrorist as a
weapon. In a similar vein, the CDL has always been utilized to indicate
a driver's qualification to safely drive a commercial motor vehicle
and, with respect to the hazmat endorsement, as a measure of the
driver's knowledge of the hazmat regulations to safely transport
placarded quantities of hazmat.
The PATRIOT Act background check mandate focused solely on
security, with the objective of preventing a terrorist from using a
truck loaded with hazmat to do harm. That security objective is vastly
different from the safety objective underlying the hazmat regulations
and the hazmat endorsement. Trying to fit a square peg into a round
hole is an apt analogy for TSA's attempt to take a safety-based system
and try to transform it into a security-based system without
modification. The safety-based hazmat universe is simply too broad to
serve as the foundation for a program to regulate transportation
security.
2. By requiring a fingerprint-based check for all hazmat-endorsed
drivers and implementing the program in the manner that TSA has, the
costs to drivers and carriers are unacceptably high and serve as a
disincentive to obtaining a hazmat endorsement.
TSA designed the hazmat background check program to be fingerprint-
based, although the terrorist databases and watch lists are populated
with names only and the criminal history records databases can be
searched using names (as evidenced by the National Instant Criminal
Background Check System (``NICS'') utilized to check the criminal
backgrounds of gun purchasers). This requirement has added significant
costs: both direct costs in terms of fees charged to offset the costs
of collecting and processing fingerprints and indirect costs in terms
of driver time off work. These costs and the added inconvenience to
drivers--not the prospect of being found to be a terrorist--are
dissuading more and more drivers from obtaining hazmat endorsements.
Briefly, the fees charged for the hazmat background check program
vary depending on whether or not the driver is in a state that opted to
use the TSA contractor for fingerprint collection. In those states that
opted to use the TSA contractor, the fee is $94 broken down as follows:
$38 for the Information Collection fee (i.e., fingerprint capture); $22
for the FBI fee; and $34 for the Threat Assessment fee. The 17 states
that opted to collect prints on their own must charge $24 for the FBI
fee and $34 for the Threat Assessment fee but are free to charge what
they desire for fingerprint collection. In New York, this fee is $75
for a total security threat assessment fee of $133. Drivers are
required to go through the fingerprinting process at least once every
five years, thus these fees are recurring. The fees charged to truckers
does not compare favorably to: 1) an airport worker with unescorted
access to secure areas who pays $29 or $31 (which includes the $22 FBI
fee) for his/her check, depending on collection method; 2) the proposed
fee for checks of workers with unescorted access to air cargo, which is
$39; or 3) a driver participating in the Free and Secure Trade border-
crossing program who pays $50 for his/her check and receives a
credential with an RFID for that price. ATA finds it particularly
appalling that TSA has made clear the trucking industry is paying these
significantly higher fees to subsidize the establishment of a screening
system that will be used for screening of other transportation workers
in the future, but at significantly lower costs to them.\1\
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\1\ In TSA's Air Cargo Rule, which would broaden the background
check requirements for certain aviation workers to include screeners
and supervisors of screeners of cargo to be carried aboard all-cargo
aircraft and which TSA proposed on the same day that it proposed the
fees for the hazardous materials background check program, TSA stated:
[W]here possible, TSA would leverage existing processes,
infrastructure and personnel that are envisioned to be in place for
other Security Threat Assessment programs at the time this program
begins operation. Existing infrastructure that would be leveraged
include the HAZMAT Endorsement Program's Hazardous Materials
Endorsement Screening Gateway System (HMESG); however, some
modifications to these systems would be necessary to meet the proposed
requirements. The changes would include connectivity with additional
government agencies, software enhancement and additional backup
capabilities.
TSA then estimated that total start up costs for the above air
cargo system would be $690,000, compared to total start up costs of
$4,760,000 for the HMESG, a differential of more than $4 million. ATA
supports the concept of government agencies leveraging resources to
implement the requirements for security threat assessments more
efficiently. In fact, the coordinated, nationwide, transportation-wide
system that ATA could support would do just that. In this instance,
however, it is unconscionable to require the trucking industry to bear
the burden of what amounts to a subsidy for other transportation sector
workers.
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These higher than necessary fees are, unfortunately, just one part
of the problem. The other significant issue with the hazmat background
check program is the location and operating hours of the approved
fingerprint collection sites. Many drivers have to take significant
periods of time off work--most often without pay--to submit their
fingerprints. For example, a driver based in Montana who works for a
large carrier with operations nationwide had to travel 150 miles one
way from Great Falls to Butte in order to submit prints at the TSA-
approved location. As if that was not bad enough, that same driver had
to make the round-trip again when he was notified that the collection
agent had failed to capture the fingerprints properly. In a state like
Montana, it is roughly 270 miles one-way to go from Eastern Montana
(where a lot of oil activity takes place and where hazmat endorsements
are necessary) to Billings (the closest approved collection site). At
Celadon, my drivers tell me they have to make a minimum of two visits
and in some locations three visits, in order to complete the hazmat
endorsement process. Assuming my drivers make roughly $200 per day, you
can begin to calculate what the costs are to them. Add to that my costs
as a company due to having a driver miss a day of work at a time when I
am looking for additional drivers. Drivers also complain about the
hours of operation of the approved fingerprint collection sites. Many
locations are only open two days per week for only four hours per day.
It is easy to see why drivers are discouraged. The repercussions
are just now starting to be felt and portend to be significant. For
many carriers, hazmat represents roughly 5 percent of their overall
freight. However, for scheduling and efficiency reasons, many carriers
used to require all their drivers to maintain hazmat endorsements so
they could haul any load. This allowed carriers to dispatch the closest
driver to pick up a load, whether it was a hazmat placarded load or a
load of ordinary freight. As a result of the cost and inconvenience
associated with the hazmat background check program, many carriers are
no longer requiring their drivers to maintain hazmat endorsements. We
at Celadon are one of those companies. Hazmat such as lubricants, soft
drink syrup, and nail polish represents 1.5--2 percent of our total
freight, yet, until recently, we required all 2,400 of our U.S.-based
drivers to have a hazmat endorsement. Now we face the likelihood of
increased costs associated with sending hazmat-endorsed drivers greater
distances to pick up a hazmat load even though we may have other
drivers closer to that load. Carriers, like my company, are seeing, or
expect to see, fewer drivers obtaining or renewing their hazmat
endorsements and several carriers expect to be out of the business of
hauling hazmat altogether in the future. By TSA's own estimate, the
hazmat background check program will result in a loss of 20 percent of
the hazmat-endorsed driver population. ATA has submitted for the record
a letter signed by 39 motor carriers of various sizes and operations
who have expressed concern about their continued ability to haul hazmat
in the future as a result of the costs and burdens imposed by the
hazmat background check program. The program needs immediate attention.
3. TSA's failure to implement a uniform, nationwide system has led
to uneven implementation by the states, which poses problems that
disrupt a carrier's operations.
The lack of uniformity in the administration of the hazmat
background check program has caused problems for drivers that have
sought to transfer a valid hazmat endorsement between states. This
issue was brought to ATA's attention by carriers with drivers in South
Carolina, New York and Illinois. Drivers that were legally authorized
to transport hazmat nationwide one day were being stripped of their
endorsements (and in many cases, thus unable to drive for their
employers) by these states. Since this was not the agency's intent, TSA
tried to correct the problem by issuing guidance to the states on the
spirit of the regulations. However, the problem is that it was just
that--guidance--and did not have any obligatory force or effect.
Notwithstanding the fact that TSA issued a permissive exemption to
states from the prohibition against issuing a transfer hazmat
endorsement prior to receiving a Determination of No Security Threat
Assessment, Illinois continues to revoke hazmat endorsements issued by
other states upon submission of a transfer application. This means that
a driver holding a valid hazmat endorsement that moves into Illinois
must surrender his/her hazmat endorsement and await completion of the
security threat assessment process. In this circumstance, the affected
driver, through no fault of his/her own, may be unable to earn a
living--for several weeks--until TSA issues a Determination of No
Security Threat and Illinois reissues a CDL with a hazmat endorsement.
B. A new approach could provide the same level of security for
transportation of hazmat by truck without the same overwhelming costs.
As previously stated, the trucking industry supports common-sense,
effective measures to secure the transportation of hazmat by truck.
With respect to the hazmat background check program, ATA believes there
are two alternative approaches which would continue to achieve the
security objective while reducing the negative impact on the trucking
industry's ability to move the Nation's goods. It is up to this
Congress to provide the leadership and direction to fix a program that
is fundamentally broken.
1. According to TSA's past statements, name-based checks could
achieve the primary security objective.
As demonstrated above, the primary cause of the exorbitant costs
and inconvenience associated with the hazmat background check program--
and thus driver and carrier dissatisfaction with the program--is the
submission of fingerprints. Congress did not explicitly require
fingerprints in the PATRIOT Act. ATA believes the primary objective of
the hazmat background check problem is and should be to reduce the
likelihood of a terrorist gaining authorized access to hazmat with the
potential to do harm. In light of this reasonable objective, ATA is
convinced by TSA's past statements that name-based checks are
effective.
In the April 6, 2004 Federal Register, TSA stated, with respect to
checking terrorist-related databases in advance of fingerprint-based
criminal history record checks, ``TSA believes that this name-based
check of all drivers who are currently authorized to transport hazmat
will enable the agency to focus on individuals who may pose a more
immediate threat of terrorist or other dangerous activity.'' TSA
further stated, ``The terrorist-related information that TSA will
search prior to January 2005, is the best indication of an individual's
predisposition to commit or conspire to commit terrorist attacks.''
Later, in a November 10, 2004 Docket Exemption Notice, TSA stated,
``Moreover, TSA has completed a name-based threat assessment of all
current HME holders and repeats this check periodically. TSA has
disqualified the individuals TSA has concluded pose or may pose a
security threat. Therefore, TSA has determined that delaying
[fingerprint-based checks] for individuals who currently hold an HME
and must renew or transfer them within the next several months will not
adversely impact security.''
In its Air Cargo Rule, TSA proposed to require individuals who have
unescorted access to air cargo but had not undergone the background
check required for Secure Identification Display Areas (``SIDA'')
access (i.e., secure areas of an airport) ``to undergo a security
threat assessment to verify that they do not pose a security threat.''
\2\ In that rule, TSA proposed that such individuals should only be
subjected to a name-based background check. Part of its rationale
included:
---------------------------------------------------------------------------
\2\ 69 Fed. Reg. at 65265.
TSA recognizes that the number of individuals with access to
cargo is large--approximately 63,000--and that the companies
they work for run the gamut from complex organizations to ``mom
and pops.'' Therefore, requiring all these individuals to
undergo fingerprint-based criminal history background checks
would be a time-consuming and costly process. TSA believes that
potential security concerns related to unescorted access to
cargo by these individuals would be best addressed by requiring
individuals to submit to a Security Threat Assessment program,
focused on the threat of terrorism. A Security Threat
Assessment, as proposed in this NPRM, would rely on checks of
existing intelligence-based records and databases to ensure
that an individual who is a known or suspected threat is
prohibited from working in positions that could allow that
individual to have unescorted access to air cargo. This program
adopts best practices from the financial services and
transportation security communities to reduce the likelihood
---------------------------------------------------------------------------
that a terrorist could gain access to cargo.\3\
\3\ 69 Fed. Reg. at 65265.
---------------------------------------------------------------------------
Applying that rationale to the trucking industry, how TSA ended up
with the process that the trucking industry now faces is inexplicable.
The affected trucking industry population is large--approximately 2.7
million by TSA's numbers, which is approximately 45 times larger than
the air cargo population TSA considered--and trucking companies
certainly run the gamut from complex organizations to ``mom and pops.''
Experience has certainly shown that the fingerprint-based records check
process designed by TSA is both time-consuming and costly. And in the
end, a hazmat endorsement essentially allows an individual unescorted
access to cargo. Consistent rationale points to the conclusion that
name-based checks should suffice.
ATA understands that Congress also directed a search of criminal
history record databases. As discussed earlier, this is already being
done in other contexts using names and other unique identifiers. Name-
based checks are conducted every day in compliance with the Brady Act
for gun purchases and by Customs and Border Protection officials for
customs and immigration purposes. These checks are made against the
NCIC 2000 database, which contains records on wanted persons, and the
Interstate Identification Index, which contains over 35 million
criminal records. One is thus left with the question of whether
requiring fingerprints helps further achieve the security objective to
such extent that it justifies the disruption to the transportation of
everyday hazmat commodities. We think not.
2. A risk-based approach that limits the background check
requirement to drivers hauling hazmat that truly poses a risk of
causing catastrophic harm would achieve the security objective and
limit the disruption to the transportation of non-threatening hazmat.
One would surmise that the underlying rationale for screening a
person before giving them access to hazmat would be that hazmat could
readily be used to do significant harm. However, that is not the case
for a wide variety of hazmat currently covered under the hazmat
background check program. For example, we are well aware that certain
explosives could be used to take down a building; however, placarded
explosives also include a large shipment of airbag components or
emergency flares, which are not weaponizable and pose no significant
security risk. Similarly, the transportation of a tanker full of
liquefied natural gas may pose security concerns that are not present
in the transportation of 5 drums of paint. Since many companies--and
drivers--never haul any hazmat that could readily be used as a weapon,
it seems that the trucking industry is being directed to expend
significant resources protecting the public against a potential harm
that does not exist. A more appropriate, risk-based approach would
focus on hazmat that truly pose a threat of significant harm to the
public.
It would be disingenuous for ATA to take sole credit for proposing
to narrow the list of hazmat that require special attention. As
mentioned earlier, Congress set the framework for such a list. In 2004,
the Federal Motor Carrier Safety Administration (``FMCSA'') promulgated
regulations requiring carriers that haul certain hazmat in certain
threshold quantities--not all hazmat requiring placarding--to obtain a
federal hazmat permit. The regulations require a permit for the
materials listed below if transported at or above the indicated
quantities:
Radioactive Materials--A highway route-controlled
quantity of Class 7 materials.
Explosives--More than 25 kg (55 pounds) of a Division
1.1, 1.2 or 1.3 material, or an amount of a Division 1.5
material requiring a placard under 49 CFR part 172, subpart F.
Toxic-by-Inhalation (Division 2.3 and 6.1) Materials--
Hazard Zone A materials in a packaging with a capacity greater
than 1 liter (0.26 gallons); a shipment of Hazard Zone B
materials in a bulk packaging (capacity greater than 450 L [119
gallons]); or a shipment of Hazard Zone C or D materials in a
bulk packaging having a capacity equal to or greater than
13,248 L (3,500) gallons.
Liquefied natural Gas--A shipment of compressed or
refrigerated liquid methane or natural gas or other liquefied
gas with a methane content of at least 85 percent, in a bulk
packaging having a capacity equal to or greater than 13,248 L
(3,500 gallons) for liquids or gases.
FMCSA's composition of this list took into consideration both
safety and security concerns.
While ATA understands that the federal hazmat permit list is not
exhaustive and that other materials in certain quantities should be
added due to their potential to do harm, ATA also firmly believes that
this list represents a solid foundation from which to launch a
comprehensive review of the regulations addressing security of
transportation of hazmat by truck. A narrowing of the hazmat background
check program to cover only security-sensitive hazmat would provide
relief for a large number of truck drivers from unnecessary burdens
while adequately protecting the homeland. Moreover, developing a list
of security-sensitive hazmat would also provide a rational foundation
for other current and future regulation of hazmat transportation
security.
In its regulatory flexibility analysis accompanying the above
regulation, FMCSA estimated that there were 1.2 million shipments of
the above-covered commodities per year, which means an average of 3,288
shipments daily. This represents just 0.4% of the average daily hazmat
shipments. This is where the appropriate focus should be.
ATA understands that some will argue that the problems the industry
complains of now with respect to drivers not getting their hazmat
endorsement and thus a diminished capacity to transport hazmat will now
be shifted to those materials that are deemed security-sensitive. Some
fear that there will be nobody around to haul those security-sensitive
materials. These arguments are based on a fundamental misunderstanding
of the industry. Carriers that haul what would likely be deemed
security-sensitive hazmat are specialized. They have already made a
conscious decision to get into that market and deal with the potential
increased liability that comes with hauling, for a lack of a better
descriptor, higher-level hazmat. This type of freight often represents
a significant portion of their business. These carriers will likely
continue to haul these materials and require their drivers to get the
appropriate clearances. However, a large majority of carriers have
consciously decided not to haul these types of materials and instead
haul non-threatening hazmat. These are the carriers who may get
squeezed out unless Congress delivers the necessary reform.
Conclusion
Mr. Chairman and members of the Subcommittee, I thank you for the
opportunity to share with you the trucking industry's concerns with the
current approach to regulating the security of hazmat transportation.
While hazmat is a small portion of the Nation's general freight, it is
an important portion that is crucial to the manufacture of the products
that contribute to our general welfare. To continue our economic
prosperity, we cannot overly burden the transportation of hazmat as a
whole for the sake of protecting the Nation against that significantly
smaller portion of hazmat that can be attractive as a weapon to do
harm. The trucking industry stands ready to work with this Congress to
protect our homeland without unnecessarily burdening the movement of
commerce.
Mr. Lungren. Thank you very much, Mr. Russell, for your
testimony.
The chair now recognizes Mr. Michael Laizure, owner-
operator of Time Critical Ordnance Transport, to testify on
behalf of Owner-Operator Independent Drivers Association.
STATEMENT OF MICHAEL LAIZURE
Mr. Laizure. Good afternoon, Chairman Lungren,
Congresswoman Sanchez and the members of the subcommittee.
My name is Michael Laizure. I am the owner of Time Critical
Ordnance Transportation, and I am from College Place,
Washington. It is my privilege to be here today on behalf of
the more than 130,000 small business truckers and professional
drivers who comprise the membership of the Owner-Operator
Independent Drivers Association.
I have been a truck driver for more than 13 years, 10 of
them as an owner-operator. And I have driven over a million
accident-free miles. Roughly 50 percent of the loads I haul
would be classified as hazardous materials, security-sensitive
materials, or both.
In the course of my business, I have personally completed
several background checks and have been fingerprinted six
different times. I have been cleared to haul loads for the
Department of Defense, the Department of Energy, and other
federal agencies.
I have hauled various sorts of chemicals, weapons,
munitions, radioactive material, as well as other things that I
am not at liberty to discuss. Some business truckers believe
that the security threat assessment process has been put in
place by the TSA for general HAZMAT endorsements are an
overreaching solution to a problem that has not been fully
identified and for which truckers are saddled with unnecessary
burdens and expenses.
What good does it do to check the backgrounds of U.S.
citizens who have held a commercial drivers license for more
than 10 or 20 years? It is hard for me to conceive that these
veteran drivers are likely to turn into terrorists, nor do I
believe that most of the HAZMAT cargoes they transport would
appeal to terrorists.
TSA's security threat assessment systems waste scarce
government resources with no real corresponding benefit in
reducing the likelihood of a terrorist incident. The program is
unnecessary, time-consuming, expensive, and redundant.
I have been cleared, like I said, again, by DOE, DOD and
other federal agencies to haul just about anything there is.
How much sense does it make for me to go through another less
intensive fingerprint and background check to haul nail polish?
Along with OOIDA, I support the amendment to the Patriot
Act HAZMAT background check requirements to narrow the TSA
security threat assessment to focus on individuals wishing to
haul hazardous materials that have been deemed as security-
sensitive.
There are intensive security assessment processes for truck
drivers already being utilized by the federal agencies. And
integrating these background checks and clearances with the TSA
and allowing agencies and industry to look to one database for
drivers with security-sensitive clearance is not only
consistent with the principles promoted by the 9/11 Commission,
but it will also save the government and private individuals
time and money.
A general hazardous materials endorsement for loads that
are not classified as security-sensitive should be preserved in
the CDL licensing process.
Also, until the TSA has the ability to complete background
check on Mexican, and Canadian, and other drivers of foreign
origins that are at the very least as stringent and
comprehensive as being completed on American drivers, foreign
truck drivers should not be provided the clearance to haul
hazardous materials, let alone security-sensitive materials.
The rationale that has been used to justify allowing non-
citizens and non-permanent residents the right to obtain a
hazardous material endorsement is based on economics, not on
security.
It is no secret that large companies in the U.S. trucking
industry are pursuing cheap foreign labor to fill seats. It is
also important to point out that persons who wish to obtain a
truck and hazardous materials to commit a terrorist act most
likely will not bother to get a hazardous endorsement or even a
CDL. Most likely, they will hijack them while in transport and
exposed.
On a final note, once again, I have clearances to carry
just about anything there is to haul, but I cannot carry a
weapon in the cab of my truck. Simply put, if I am targeted by
someone intending to seize my rig and intent on using it to
harm the American public, there is nothing I can do to stop
them; I do not have the authority or the tools to stop them.
Mr. Chairman, Congresswoman Sanchez, members of the
subcommittee, thank you for providing me with the opportunity
to testify before this panel. And I would be happy to answer
any further questions.
[The statement of Mr. Laizure follows:]
Prepared Statement of Michael Laizure
Good afternoon Chairman Lungren, Congresswoman Sanchez, and members
of the Subcommittee. My name is Michael Laizure. I am the owner of Time
Critical Ordnance Transportation and hail from College Place,
Washington. It is my privilege to be here today on behalf of the Owner-
Operator Independent Drivers Association (OOIDA).
OOIDA is a not-for-profit corporation established in 1973, with its
principal place of business in Grain Valley, Missouri. OOIDA is the
national trade association representing the interests of independent
owner-operators and professional drivers on all issues that affect
small business truckers. The more than 130,000 members of OOIDA are
small-business men and women in all 50 states who collectively own and
operate more than 190,000 individual heavy-duty trucks. Owner-operators
represent nearly half of the total number of Class 7 and 8 trucks
operated in the United States.
The Association actively promotes the views of small business
truckers through its interaction with state and federal government
agencies, legislatures, the courts, other trade associations, and
private businesses to advance an equitable business environment and
safe working conditions for commercial drivers. The TSA's hazardous
materials endorsement and security threat assessment process directly
affects owner-operators, motor carriers and professional drivers,
including members of OOIDA.
I have been a truck driver for more than 13 years, the past 10 as
an owner-operator. I drive between 120,000-140,000 miles each year
throughout the country. In my trucking operation I use a specialized
trailer and equipment to haul a wide variety of loads. Roughly 50
percent of those loads would be classified as hazardous materials and
much of that would be considered as ``high hazmat'' or security
sensitive materials. I have been through numerous background checks and
have been cleared to haul loads for the Department of Defense, the
Department of Energy and other federal agencies. I have hauled various
sorts of chemicals, weapons, ammunition and radioactive materials as
well as some other materials that I am not at liberty to discuss.
The USA PATRIOT Act of 2001 contained a provision requiring
background checks for individuals operating motor vehicles transporting
hazardous materials. The TSA took on this responsibility initiating a
security threat assessment requirement that has caused a considerable
number of problems state administrators, the trucking industry and the
shipping community that depends on that industry. Initially the TSA did
a name based check on all present hazmat endorsement drivers, but have
since instituted an arduous assessment process that has required a new
system to be put in place by state governments and federal contractors
to complete fingerprinting and background checks.
Security Threat Assessments for Hazardous Materials Endorsements
Small business truckers believe that the security threat assessment
process that has been put in place by the TSA for general hazmat
endorsements are an overreaching solution to a problem that has not
been fully identified, and for which truckers are saddled with
unnecessary burdens and expenses.
From my standpoint, what good does it do to check the backgrounds
of U.S. citizens who have held a commercial drivers license for more
than 10 or 20 years? There must be a better way of identifying a
smaller population of truckers that must go through a background check,
or at least exempting a significant part of the population where there
is little if any chance of finding potential terrorists. Long-time
drivers are particularly offended by the suggestion that they need to
go through such background checks. Hasn't TSA figured out a way to
identify persons who are more likely than not to be terrorists?
TSA's background check/security threat assessment system is
cumbersome and problematic for all involved parties. The chief
complaints that OOIDA hears from drivers about the present system is
the shortage of facilities, available times of operation for the
facilities and the amount of time necessary to get results. In
addition, substantial out-of-pocket costs and lost revenue are commonly
voiced concerns.
The program was conceived without understanding the unique
challenges of the truck driving population. Even today, after several
months and a loud chorus of complaints from truck drivers, the
fingerprint locations are often at sites hundreds of miles from the
driver's home or terminal. The sites are often located in areas where
large trucks are not allowed to venture or park and are only open at
the prime driving time for drivers.
My co-driver had to have the background check done recently for TSA
for his hazmat endorsement. In the state of Washington there are only
two places provided by the TSA. The closest facility for him to
complete the process was roughly 170 miles away from his home.
The TSA also never considered that driving to and from the
fingerprint location as well as the time involved in the process often
counts against the federal hours-of-service regulations that the
drivers must abide by and significantly infringe upon their income.
Fees collected by States or TSA's contractors at the time of
application and fingerprinting total from $94 to $134. But that is
certainly not the only cost incurred by truck drivers, particularly
owner-operators like myself. Everyday that my truck is not rolling with
a paying load, my business is losing more than $1,000 in revenue. With
the best-case scenario for going through the security threat assessment
process that TSA has developed, I will lose two days of income--a day
for application and fingerprinting, another for testing. Delays in
response from the TSA or any other bumps in the road that are somewhat
common for this process will increase the potential loss of income.
While OOIDA acknowledges a provision was included in the recently
passed highway bill to prompt the agency to look further into and
potentially address the adequacy and availability of finger printing
locations, TSA's track record in understanding the problems faced by
drivers does not leave OOIDA with significant hope. Using local law
enforcement agencies for the collection of fingerprints and background
information (already used by the Department of Defense, the Department
of Energy and others) would certainly help to diminish these problems.
OOIDA also receives numerous complaints about the redundancy of
background checks that many truck drivers must go through. I only half
jokingly say that I have been through so many background checks that I
might as well publish my fingerprints. In the course of my business, I
personally have completed several background checks and been
fingerprinted six different times.
Even though I have been cleared by the Department of Defense, the
Department of Energy and other federal agencies to haul highly
specialized and security sensitive loads, I will also have to make the
same 340 mile roundtrip drive as my co-driver to a TSA associated
facility to be fingerprinted again and to go through yet another
background check.
Again, OOIDA acknowledges a provision was included in the
transportation reauthorization bill calling for the agency to report
back to Congress on their plans to eliminate duplicative federal
background checks, however interactions with TSA staff thus far seem to
indicate a mindset that there are no equivalent background checks being
conducted. The Association is somewhat encouraged that the TSA has
recently said it would combine hazmat checks with the Transportation
Worker Identification Card (TWIC) background process.
Focusing TSA on Security Sensitive Hazardous Materials
While we do not fault lawmakers or federal agencies for their rapid
response to the tragedy of 9/11, the background check requirement for
hazmat drivers contained in the Patriot Act was overly broad in its
scope toward existing veteran hazmat drivers while it seriously missed
the mark in addressing some of the more obvious or likely ways a
commercial vehicle could be used to do great harm.
The typical owner-operator member of our organization has nearly
twenty years of experience driving trucks. They are proven
professionals, driving safely and responsibly meeting the needs of our
nation's citizens. Well over 2 million of these Americans and their
fellow drivers will have to undergo background checks when their
current commercial drivers licenses (CDLs) come up for renewal next and
at subsequent renewals thereafter.
OOIDA does not believe these veteran drivers are likely to turn
into terrorists nor do we believe that most of the hazmat cargoes they
transport would have any appeal to terrorists. By requiring them to
undergo TSA background checks, scarce resources in time and money are
simply wasted with no corresponding benefit in reducing the likelihood
of a terrorist incident.
OOIDA strongly supports the concept of narrowing TSA's security
threat assessments to focus on individuals wishing to haul hazardous
materials that have been deemed as security sensitive by amending the
Patriot Act's hazmat background check requirements. There are intensive
background check/security assessment processes for truck drivers
already being utilized by other federal agencies. Integrating those
background checks with the TSA and allowing agencies to look to one
database for drivers with security sensitive clearance is not only
consistent with principles promoted by the 9/11 Commission, but it will
also save the government and private individuals both time and money.
A general hazardous materials endorsement for loads that are not
classified as ``Security Sensitive'' should be preserved in the CDL
licensing process for truck drivers. Hazardous materials that are not
deemed to be security sensitive do pose safety risks to truck drivers,
dockworkers, the general public and first responders. OOIDA believes
that along with mandated training and increased testing requirements
for those wishing to obtain a Commercial Drivers License, compulsory
training in the handling and transporting of non-security sensitive
hazardous materials must also be a part of the licensing/endorsement
process.
Foreign Drivers Operating in the United States
Allowing foreign drivers to essentially be exempt, such as Canadian
drivers, because they have their own standards and not recognizing that
the Department of Defense, C-TPAT and FAST have rigorous standards is
completely unjustified. Accepting Mexican drivers without background
checks is unconscionable. To date, there are no known background checks
for truck drivers used in Mexico. This implies that foreign drivers are
less likely to be terrorist than American drivers. The rationale used
to justify allowing non-citizens and non-permanent residents the right
to obtain a hazmat endorsement is based on economics and not security.
It is no secret that large companies in the U.S. trucking industry are
pursuing cheap foreign labor to fill driver's seats.
It makes no public policy sense to allow persons who are not
citizens or permanent residents to obtain HME or haul hazardous
materials without a properly obtained HME. OOIDA opposes allowing non-
citizens and non-permanent residents, including Mexican and Canadian
drivers, the ability to possess an HME or haul hazardous materials with
a U.S. issued HME. It is grossly unfair to U.S. drivers to allow
persons whose backgrounds cannot be effectively checked to have the
same rights and privileges as U.S. drivers.
OOIDA agrees with other organizations in the industry that the
issue of Mexican and Canadian drivers' compliance with these rules must
be resolved before the HME threat assessment requirement be finalized.
OOIDA sees no rationale, from a fairness and public policy standpoint,
to give persons from foreign countries an exception to this rule. OOIDA
understands that Canada may have a similar security check for its
drivers in place. But an analysis must be made, with public comment,
comparing the two systems before the TSA can determine that the
Canadian system is an adequate substitute for U.S. rules. OOIDA is
unaware of any such system in Mexico, and if there were, would consider
its accuracy suspect.
Even if the TSA were to allow these foreign drivers to apply for a
U.S. hazmat endorsement, OOIDA does not believe that TSA would have
access to sufficient information from other countries to perform a
threat assessment equivalent to those performed on U.S. drivers. This
inability of TSA to perform an adequate threat assessment on foreign
drivers is also the basis for OOIDA's concern about TSA's loosening of
the immigration status requirement.
The TSA amended its original rulemaking to weaken the original
hazmat threat assessment rule to allow non-citizens and non-permanent
residents to obtain an HME. In justifying the modification, TSA made no
analysis based on homeland security policy that non-citizens and non-
permanent residents may be granted HMEs without any diminution in
security. The only issues stated by the rulemaking are that these
persons are legally allowed to work in the United States, that they
have properly obtained a CDL, and that the trucking industry is in
search of cheap labor. None of these issues bear on the risk that this
population may or may not pose to homeland security.
The fact that a person has come into this country recently gives
that person a greater likelihood that they will ``survive'' a HME
background check. The TSA likely has access to more information on the
background of an individual who has spent their entire life or a
significant amount of time here. How will TSA know whether that a
person who has come into this country recently has committed crimes or
acts in their previous country that would disqualify them from holding
an HME? This is just the kind of advantage a terrorist may try to
exploit. The focus of Homeland Security to protect our country against
threats from foreign persons underscores the seriousness of this issue.
How can the TSA justify allowing foreign persons whose backgrounds they
cannot properly examine to operate 80,000 pound vehicles, let alone
those loaded with materials that have the potential to cause great
harm?
Vulnerability of Hauling Hazardous Materials
The central problem with hazmat background checks is that they
will, in no way, address the greatest vulnerability of the trucking
industry to terrorists. As someone who regularly hauls hazardous
materials loads, I believe it is also important to point out some of
the regulations and practices within the trucking industry that leave
drivers vulnerable to terrorist attacks.
While there is evidence and a past history of terrorists using
trucks as weapons, OOIDA does not believe that persons who wish to
obtain a truck and hazardous materials to commit a terrorist act need
or will bother to get a hazmat endorsement or even a CDL. Truckers
believe the most likely way that persons will obtain a truck and
hazardous materials is to steal or hijack them at an unsecured
location. This includes at traffic lights and at the out-of-the-way
places across the country that truckers find to park their truck when
their hours-of-service are exhausted and the rest areas and truck stops
are full.
The lack of secure and safe places for trucks to park, in many
areas around the country, when a driver needs to sleep or rest, is a
significant vulnerability for hazmat transportation. A terrorist intent
on obtaining a truck containing hazardous materials will have a much
easier time and spend fewer resources in stealing a truck than he will
bothering to get a CDL and hazmat endorsement. This problem remains
entirely unaddressed by TSA and FMCSA. Congress did pass a pilot
program related to increasing safe and secure truck parking in the
highway bill, a small step in the right direction.
Federal regulations for certain hazmat loads require that a placard
be posted on the sides of the trailer containing that load. The
placarding of a trailer provides first responders with information on
the level of danger and assists them in knowing what measures are
needed to respond to a potential emergency should the truck become
involved in an accident. This is legitimate and important information,
however, anyone with an Emergency Response Guide
(ERG) can look up the code on the placard and have a fairly good
idea of the contents of that load. An ERG can be purchased at most
truck stops. The placarding requirement essentially equates to
advertising loads that have the potential to cause significant damage.
Some system or coding process should be instituted that provides
appropriate safety information to first responders, but does not
provide an easy target for someone with malice in their heart.
If I am targeted by someone intent upon seizing my truck and
trailer, there is little I can do to stop them. Ironically, I have
clearances to carry just about anything there is to haul in the U.S.,
but I cannot carry a weapon in the cab of my truck. If someone sticks a
gun in my face, I've got two choices and I'm not the one that gets to
make them. My truck is equipped with a panic button that is supposed to
cause the equivalent of an ``officer down'' response on the federal
level when it's pushed. However, by all accounts that I am aware, the
timeliness of responses by local, state and federal entities to engaged
panic buttons are questionable at best.
Finally, there have been some proposals to require the GPS tagging
of hazmat trucks. Truckers are truly offended by the idea of the
government watching their every move. Isn't it the hazardous materials
that you would most like to keep track of? Hazardous materials can
travel across several modes of transportation. Shouldn't any electronic
monitoring be of the materials themselves? Tracking the truck won't be
of much use should the materials be stolen from the truck, or the
trailer is detached and stolen from the tractor. If hazardous material
are taken from the truck or go missing, finding the truck is no
guarantee of finding the materials. Track the materials and you will
find the materials. If you consider electronic monitoring of hazardous
materials, OOIDA suggests that to tag the materials would be far more
effective and impose on driver privacy far less.
Conclusion
Although there are some significant security vulnerabilities in the
trucking industry, there are steps that the federal government can take
towards making the transport of hazardous materials by truck more
secure overall without adding unnecessary burdens and expenses on
itself or commercial motor vehicle operators. Focusing the resources of
the Transportation Security Administration on ensuring that individuals
with red flags in their backgrounds are not being afforded access to
haul security sensitive hazardous materials is an excellent starting
point. There are intensive background check/security assessment
processes for truck drivers already being utilized by other federal
agencies. Integrating those background checks with the TSA and allowing
agencies to look to one database for drivers with security sensitive
clearance is consistent with both the principles promoted by the 9/11
Commission and the mandates of the recently passed highway bill. It
will also save the government and private individuals both time and
money.
Hazardous materials that are not deemed to be security sensitive do
pose safety risks to truck drivers, dockworkers and first responders. A
general hazardous materials endorsement for loads that do not qualify,
as ``Security Sensitive'' should be maintained in the licensing process
for truck drivers. Along with mandated training and increased testing
requirements for those wishing to obtain a Commercial Drivers License,
compulsory training in the handling and transporting of non-security
sensitive hazardous materials must be a part of the licensing/
endorsement process.
Until the TSA has the ability to complete background checks on
Mexican, Canadian and other truck drivers of foreign origin that are at
the very least as stringent and comprehensive as those being completed
on American drivers, foreign truck drivers should not be provided with
clearance to haul security sensitive hazardous materials. As was
suggested with non-security sensitive hazardous materials, non-citizen
and non-permanent resident truck drivers should be required to complete
comprehensive training in the handling and transportation of hazardous
materials before they are allowed to haul those loads within our
country's borders. Additionally, the training, assessment and
background checking standards should be increased for all individuals
wanting to attain a U.S. commercial drivers license who are not
American citizens.
The federal government should also review regulations and industry
practices to diminish the vulnerabilities of trucks transporting all
types of hazardous materials, especially those that may be used as
weapons against the American people.
Chairman Lungren, Congresswoman Sanchez, and members of the
Subcommittee, thank you for providing me with this opportunity to
testify on behalf of the members of the Owner-Operator Independent
Drivers Association.
I look forward to answering questions from the members of the
Subcommittee and providing you with the perspective of a small
businessman and driver behind the wheel.
Mr. Lungren. Thank you very much, Mr. Laizure, for your
testimony.
The chair now recognizes Mr. Gary Brown, general counsel at
Pyro Spectaculars, to testify on behalf of the Institute of
Makers of Explosives, et al.
STATEMENT OF GARY BROWN
Mr. Brown. Mr. Chairman, members of the subcommittee, I am
pleased for the opportunity to present testimony on the
concerns which prompt today's hearing.
Our recommendation is an attempt to balance safety and
security with the need to provide for the free flow of goods
and to bolster our international competitiveness. This requires
that Congress separate two issues that have been confused in
some form.
The first is: What material should be subject to security
considerations? The answer is based on two factors. First, what
materials have terrorists used and what can we deduce from this
usage to predict future events? And, second, how do we ensure
international harmonization of security-sensitive materials, so
that the free flow of goods is not impeded?
Some in our coalition are identified with a small subset of
hazardous material, high explosives, highway-route controlled
shipments of radioactive materials, and materials that are
toxic by inhalation.
While we are not advocating that these materials be
dismissed as unsuitable for security-sensitive designation, our
review of terrorist events underscores the inadequacy of so
limited a list. The vast majority of materials used in
terrorist events involves products that are not the regulated
commercial material just named, but are other commonly
available materials that are easily converted into weapons of
mass destruction.
At the same time, the review of terrorist events reveals
the proposals to include all hazardous materials, or even just
placarded quantities of hazardous materials in assessments of
security risks, is unnecessary. While all materials meeting
DOT's definition of hazardous materials pose some level of
risk, only a subset of these materials have the potential of
being used to bring about serious terrorist attacks.
There is a reputable middle ground that addresses both ends
of this policy conundrum. The U.N. Committee of Experts on the
Transport of Dangerous Goods has identified a list of high-
consequence dangerous goods meant to trigger security
requirements applicable to the worldwide transport of dangerous
goods.
The list is now recognized and used by a number of
international organizations and countries. Although the issue
currently before this subcommittee is limited to the threat
presented by commercial hazardous materials truck drivers,
Congress should direct TSA to reference the U.N. indicative
security list in the same way DOT references the harmonized
hazardous materials list when security issues and requirements
are discussed and formulated.
Absent such direction, international harmonization, which
has effectively sustained hazardous material safety for
decades, is thwarted. A larger list will bring unnecessary
regulation. A smaller list will prove to be the weak link in
transportation security.
The second issue that must be addressed is, what
requirements are necessary to achieve an acceptable level of
safety and security for drivers seeking hazardous materials
endorsements to their commercial drivers licenses? The answer
is based on current experience with the TSA and other federally
sanctioned threat assessment programs.
The current requirements used by TSA to assess security
threats posed by commercial drivers are unnecessarily
burdensome. That burden results from the fingerprint
requirement. There are ways to reduce this burden that do not
include simply imposing this aspect of the threat assessment on
a fraction of security-sensitive hazardous material.
We believe that all commercial drivers seeking an HME, who,
in the course of their work, will transport these materials,
should be subject to a background check but one without a
blanket fingerprint requirement. The precedent for this
recommendation has been set in background check programs of
individuals seeking to purchase firearms and possibly for those
who possess commercial explosives.
Under these non-fingerprint-based programs, computerized
criminal justice information is accessed through the National
Instant Crime Background Check System, or NICS, which has
successfully processed millions of record checks.
Our recommendation is to require a NICS check for all
commercial drivers seeking an HME who will transport by truck
materials on the U.N. indicative list. In those cases where
instant confirmation is not obtained, we recommend that the
driver then be required to submit fingerprints.
Subjecting all drivers who will transport materials on the
U.N. indicate list to a name-based background check as a
condition of obtaining an HME is reasonable and will relieve
the fast majority of drivers from the onerous blanket
fingerprint filing.
Remember that even before the events of September 11, 2001,
those with terrorist intent exploited misused common products
for their devices. Until acceptable means are found to reduce
these risks, fingerprinting drivers of already highly regulated
commodities will not produce security benefits that outweigh
the burden.
We are committed to finding appropriate cost-effective
solutions to overly burdensome regulation that lull our society
into a belief that we are safer than we really are.
Thank you for the opportunity.
[The statement of Mr. Brown follows:]
Prepared Statement of Gary Brown
Mr. Chairman and Members of the Subcommittee:
I am Gary Brown, General Counsel, of Pyro Spectaculars. Pryo
Spectaculars is one of the nation's largest fireworks display
companies. Based in California, Pyro Spectaculars conducts operations
throughout the country and has transportation needs that span the
globe. My testimony is supported by several industry associations:
American Pyrotechnics Association
The Chlorine Institute
Council on Safe Transportation of Hazardous Articles
The Fertilizer Institute
Institute of Makers of Explosives
International Vessel Operators Hazardous Materials Association
Nuclear Energy Institute
Collectively, we are shippers and carriers of hazardous materials.
The products and services of our member companies underpin the standard
of living we enjoy. We employ over a million people. We represent that
the largest exporting sector in the economy. We are essential to the
economy and the preservation of life. None of these benefits exists
without a transportation sector willing and able to move these
materials safely and securely.
We have a long history of proactive attention to the safe and
secure transportation of our products. We are concerned about security
risks in transportation. We have taken independent steps to address
security concerns. We also believe that improvements are warranted in
the Transportation Security Administration's (TSA) threat assessment
program for commercial drivers of hazardous materials.
Our search for solutions to the concerns which prompt today's
hearing leads us to recommendations that balance safety and security
with the need to provide for the free flow of goods and to bolster our
international competitiveness. This requires that Congress separate two
issues that in some forums have been confused--what materials should be
subject to security consideration and requirements, and what
requirements are necessary to achieve an acceptable level of safety and
security.
Security-Sensitive Hazardous Materials (SSHM)
By way of introduction, some have proposed that the TSA threat
assessment program is flawed and the only way to fix it is to limit its
application to drivers of a very few select ``weaponizable'' materials.
It should come as no surprise that many believe such a list consists of
Division 1.1, 1.2 and 1.3 explosives, highway-route controlled
shipments of radioactive materials, and materials ``toxic by
inhalation'' (TIH). Let us be clear that we are not advocating that
these materials be removed from such a list. However, a cursory review
of terrorist events in the United States and a number of recent highly
publicized attacks abroad underscore the inadequacy of so limited a
list. In fact, the vast majority of materials used in terrorist events
involve products that are not the regulated commercial materials on
this list, but are other commonly available materials that are easily
converted into weapons of mass destruction.
At the same time, we agree that proposals to include all hazardous
materials or even just placarded quantities of these hazardous
materials, which is the applicability of the current TSA threat
assessment program, in assessments of security risks is unnecessary.
The Department of Transportation's (DOT) hazardous materials list was
derived to address more than just security concerns. It includes a wide
range of materials including consumer commodities in small packages
such as cosmetics, medicines and toiletry items. While all materials
meeting DOT's definition of hazardous materials pose some level of
risk, only a subset of these materials have the potential of being used
to bring about a serious terrorist attack.
There is a reputable middle ground that addresses both ends of this
policy conundrum. The United Nations Committee of Experts on the
Transport of Dangerous Goods, the world's most authoritative body of
experts on the safety and security of hazardous materials, has
identified a list of ``high consequence dangerous goods'' in developing
its security requirements applicable to the worldwide transport of
dangerous goods (hazardous materials). The UN Committee considers these
high consequence materials in specified quantities as having the
potential to ``produce serious consequences such as mass casualties or
mass destruction.'' The United States played a leading role in the UN
Committee's technical development of this list. (Attachment A)
The list is now recognized worldwide. It has now been adopted by
international organizations such as the International Maritime
Organization in its International Maritime Dangerous Goods Code (IMDG)
and the International Civil Aviation Organization (ICAO) in its
Technical Instructions on the Safe Transport of Dangerous Goods by Air.
Both the IMDG Code and the ICAO Technical instructions are mandatory
for countries (including the US) that are signatory to the Safety of
Life at Sea Convention and the Chicago Convention. In addition the list
is used as a basis for regulation throughout Europe and northern Africa
through the international regulations for road and rail transportation
known as the ADR and RID.
The list is not static and is amended from time to time by the UN
Committee as the potential uses of materials in significant terrorist
attacks are identified or as new chemicals are manufactured and placed
in transportation. At the same time the list provides a practical yet
still conservative means of encompassing materials that could pose a
serious security threat.
Virtually all hazardous materials shipments entering or leaving the
US by sea or air are shipped today in compliance with these
international regulations. By adopting a list of SSHM identical to the
indicative list adopted by the United Nations, Congress would be in
step with worldwide experts on what materials constitute a security
risk in transportation, security of hazardous materials would be more
easily enforced, and regulatory confusion diminished.
Although the issue currently before this Subcommittee is limited to
the threat presented by commercial hazardous materials truck drivers,
Congress should direct TSA to establish the UN indicative security list
as the reference point to be used in the same fashion as DOT's
harmonized hazardous materials list when security issues and
requirements are discussed and formulated. Absent such direction,
international harmonization which has effectively sustained hazardous
materials safety for decades is thwarted. A larger list will bring
unnecessary regulation; a smaller list will prove to be the easily
exploitable weak link in transportation security. As with the well-
regarded and universally accepted UN harmonized list for hazardous
materials safety, if some believe materials on the indicative security
list should be removed, they should carry their concern and evidence to
the United Nations.
We believe the safe and secure movement of these security-sensitive
materials necessitates maintenance of the common carrier obligation and
appropriate risk-based security requirements for all carriers.
Conversely, a narrow application of security requirements to only a few
of the essential materials on the UN indicative list would cripple
means of distribution. Loss of common carriers, or even entire modes as
happened when the Bureau of Alcohol, Tobacco, Firearms and Explosives
attempted to regulate explosives transportation in early 2003, would
leave no other option to deliver these indispensable materials than
private transportation, which will likely produce costly inefficiencies
and increase safety risks. Impairing the safe and efficient
transportation of the materials we ship is not the way to guarantee
security. Indeed, we know that terrorists do use commonly available
materials to harm us, our economy and our way of life.
Refining the TSA Threat Assessment Requirements
We agree that the current requirements used by TSA to assess
security threats posed by commercial drivers are unnecessarily
burdensome. That burden results from the fingerprint requirement. There
are ways to reduce this burden that do not include simply imposing this
aspect of the threat assessment, or any threat assessment at all, on a
fraction of SSHMs.
Even though ``fingerprint'' is not used in the text of the USA
Patriot Act provision authorizing the TSA threat assessment program,
TSA has been advised by the National Crime Prevention and Privacy
Compact Council (Compact Council) that fingerprints must be submitted
to gain access to criminal history databases for noncriminal justice
purposes. The Compact Council was established pursuant to the 1998
National Crime Prevention and Privacy Compact (Compact) (42 U.S.C.
14616) to promulgate rules and procedures governing the use of the
Federal-State criminal history records system for noncriminal justice
purposes. One of the rules of the Compact is that identifications based
solely upon a comparison of subjects' names or other non-unique
identification characteristics do not constitute positive
identification. However, there is no reason that the Compact cannot be
amended to allow screening without fingerprints. In fact, workable,
effective alternatives are available.
In the initial implementation of TSA's commercial hazmat driver
threat assessment authority, the Compact Council waived the fingerprint
requirement for purposes of gaining access to criminal history
databases. According to TSA in testimony provided in May of this year,
a name-based check was performed for all drivers with hazardous
materials endorsements (HME) on their commercial driver's license. Of
the 2.7 million record checks performed only 100 individuals were
referred to law enforcement agencies. Between January 2005 when the
fingerprint requirement took effect and the May testimony, TSA
performed fingerprint-based checks on about 30,000 new HME applicants.
Of these, ten were deemed disqualified to hold an HME. We trust that
none of the disqualified driver applicants and/or those referred to law
enforcement as a result of either the name-based or fingerprint-based
threat screen were ultimately determined to be terrorists. Had such a
discovery been made, we believe TSA would have publicized the event.
These data suggest that the name-based check is a sufficient deterrent
and that the fingerprint requirement, the most costly element of TSA's
background clearance protocol, is an unnecessary burden.
We believe that all commercial drivers seeking an HME who, in the
course of their work, will transport SSHM should be subject to a
background check. As the Subcommittee is undoubtedly aware, individual
criminal records are accessed and searches performed to authorize other
federally regulated activity without fingerprints. Notable examples are
checks of individuals seeking to purchase firearms and those who
possess commercial explosives.
Whether a check is performed for purposes of firearms, explosives,
or HME possession, the records accessed are maintained in the National
Crime Information Center (NCIC), a computerized index of criminal
justice information under the control of the Federal Bureau of
Investigation. Data in NCIC files is exchanged with, and for the
official use of, authorized officials of the Federal Government, the
States, US territories and possessions, cities, penal and other
institutions, and certain foreign governments. The NCIC is operational
24 hours a day, 365 days a year. Criminal history data is disseminated
to justice agencies for use in connection with licensing for local/
state employment or other uses, but only where such dissemination is
authorized by Federal or state statutes and approved by the Attorney
General of the United States.
Non-fingerprint based access to the NCIC for firearms purchases,
and the model for the commercial explosives possession screen, is
through the National Instant Criminal Background Check System (NICS)
authorized by the Brady Handgun Violence prevention Act (P.L. 103-159).
NICS also uses the Interstate Identification Index and the NICS Index.
Since inception in 1998, NICS has successfully processed millions of
records checks. The records checks are instantaneous, usually within
seconds of inquiry. The NICS is programmed to check records that would
reveal an individual's disqualification based on statutory standards.
The disqualifications applicable to firearms purchases and explosives
possession are nearly identical to the disqualifications currently
established for the HME threat assessment. (Attachment B) The
similarity in disqualifications would minimize start-up costs of adding
HME applicant checks to the NICS workload.
Some are quick to criticize the adequacy of NICS given gun violence
in the United States. However, the most widely cited surveys of the
origins of guns for criminals and juveniles show that a majority of
felons acquired their guns from non-retail, informal sources and that
the percentage of retail purchases is falling. Much preferred and
utilized methods of acquisition include family, friends, the black
market and direct theft.
Others argue that a program not based on fingerprints would be
taking security back a step. However, the ability of a fingerprint-
based check to catch a criminal or terrorist is dependent on that
individual's fingerprints already being in the system from some prior
crime. Fingerprints cannot predict future acts of violence or terror.
One of the traits we have learned about terrorists is that they strive
for secrecy, to avoid detection, not to call attention to themselves by
committing some prior crime when their motivation and goal is directed
toward a future act of terror.
Our recommendation to the Subcommittee is that the current TSA
threat assessment program be modified to require a NICS check of all
commercial drivers seeking an HME, who will transport by truck,
materials on the UN indicative list. We recommend that state commercial
motor vehicle licensing officials be authorized to submit inquiries to
the NICS at the time the driver is applying for his license. In those
cases where instant confirmation is not obtained, we recommend that the
driver be required to submit his/her fingerprints at that time or
withdraw his/her HME indicative list application. Based on the results
thus far achieved by the TSA threat assessment program, we would expect
that the number of drivers asked to submit fingerprints would be less
than a tenth of a percent of applicants.
The commerce of hazardous materials is too vital to our economy to
allow fear and speculation to cripple the distribution of these
materials. While no threat assessment screen is foolproof, subjecting
all drivers who will transport materials on the UN indicative list to a
name-based backed check as a condition of obtain a HME is reasonable,
and will relieve the vast majority of drivers from the onerous blanket
fingerprint filing. Remember that even before the events of September
11, 2001, those with terrorist intent exploited and misused common
products for their devices. Until acceptable means are found to reduce
these risks, fingerprinting drivers of already highly regulated
commodities will not produce security benefits that outweigh the
burden.
Conclusion
Let me emphasize our commitment to work with this Subcommittee and
others in Congress to find appropriate, cost-effective solutions to
overly-burdensome regulations that lull our society into a belief that
we are safer than we are. We take seriously our responsibility to be a
part of that solution.
I want to thank this Subcommittee for the opportunity to provide
comment on the issues raised by today's hearing. The subcommittee
should be commended for its attention to the sensitive and important
issues surrounding the process to ensure that commercial motor carrier
drivers meet standards of safety and security.
This concludes my testimony. I would be pleased to answer any
questions.
ATTACHMENT A
United Nations Committee of Experts on the Transport of Dangerous Goods
High Consequence Dangerous Goods
High consequence dangerous goods are those which have the potential
for mis-use in a terrorist incident and which may, as a result, produce
serious consequences such as mass casualties or mass destruction. The
following is an indicative list of high consequence dangerous goods:
Class 1, Division 1.1 explosives
Class 1, Division 1.2 explosives
Class 1, Division 1.3 compatibility group C explosives
Class 1, Division 1.5 explosives
Division 2.1 flammable gases in bulk
Division 2.3 toxic gases (excluding aerosols)
Class 3 flammable liquids in bulk of packing groups I and II
Class 3 and Division 4.1 desensitized explosives
Division 4.2 goods of packing group I in bulk
Division 4.3 goods of packing group I in bulk
Division 5.1 oxidizing liquids in bulk of packing group I
Division 5.1 perchlorates, ammonium nitrate and ammonium nitrate
fertilizers, in bulk
Division 6.1 toxic substances of packing group I
Division 6.2 infectious substances of Category A
Class 7 radioactive material in quantities greater than 3000 A1
(special form) or 3000 A2, as applicable, in Type B or Type C packages
Class 8 corrosive substances of packing group I in bulk
NOTE 1: For the purposes of this Table, ``in bulk'' means
transported in quantities greater than 3000 kg or 3000 l in
portable tanks or bulk containers.
NOTE 2: For purposes of non-proliferation of nuclear material,
the Convention on Physical Protection of Nuclear Material
applies to international transport supported by IAEA INFCIRC/
225(Rev.4).
ATTACHMENT B
NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM PROGRAM
DISQUALIFICATIONS
------------------------------------------------------------------------
Gun
Purchase Explosives HM-CDL
DOJ-ATF Possessor Endorsement
PROGRAM Agency Citation 18 USC DOJ-ATF 18 DHS-TSA 49 CFR
922(g) & USC 842(i) 1572.103--.109
(n)
------------------------------------------------------------------------
DISQUALIFICATION .......... ........... ...............
------------------------------------------------------------------------
Felony conviction X X X \1\
------------------------------------------------------------------------
Under indictment for a felony X X X
------------------------------------------------------------------------
Fugitive X X X
------------------------------------------------------------------------
User of or addicted to any X X X \2\
controlled substance
------------------------------------------------------------------------
Adjudicated as a mental X X X
defective or committed to a
mental institution
------------------------------------------------------------------------
An alien X X X
------------------------------------------------------------------------
Renounced citizenship X X X
------------------------------------------------------------------------
Dishonorable discharge X X ...............
------------------------------------------------------------------------
Under a court-ordered X ........... ...............
restraining order
------------------------------------------------------------------------
Domestic violence conviction X ........... X \3\
------------------------------------------------------------------------
Security threat .......... ........... X \4\
\1\ All felony convictions are
permanent disqualifications
in all programs except under
the HM-CDL program only
convictions for espionage,
sedition, treason, terrorism,
a crime involving a
transportation security
incident, criminal conviction
under HMTA (or comparable
state law), unlawful
possession of explosives,
murder, conspiracy or attempt
to commit these listed
crimes.
\2\ DOT, not DHS, administers
this disqualification for
drivers irrespective of
whether the driver transports
placarded HM.
\3\ The DHS only specifies
rape or aggravated sexual
abuse.
\4\ Wanted by Interpol, on
terrorist watchlists, or if
information reveals extensive
foreign or domestic criminal
convictions, foreign
imprisonment exceeding 365
days, or a conviction for a
``serous crime'' not
otherwise listed.
------------------------------------------------------------------------
Mr. Lungren. Thank you very much, Mr. Brown, for your
testimony.
And now the chair recognizes Ms. Linda Lewis-Pickett,
president and CEO of the American Association of Motor Vehicle
Administrators, to testify.
STATEMENT OF LINDA LEWIS-PICKETT
Ms. Lewis-Pickett. Good afternoon, Mr. Chairman and
distinguished members of the subcommittee. I thank you for the
opportunity to testify on behalf of the departments of motor
vehicles nationwide. I will touch on three issues today.
The first is our members' concerns with the proposed two-
tiers credentialing system, which incorporates a pocket card.
As we understand it, a two-tiered credentialing system attempts
to differentiate between commercial drivers hauling very
hazardous materials and those transporting materials considered
to be less hazardous.
Initial response from our members indicates there is
concern that, no matter how hazardous materials are classified,
it is difficult to reliably tie the actual driver of a
hazardous material to the shipments he or she is carrying.
Further concerns indicate that the administrative burden
and cost of asking the states to handle gradients of HAZMAT
material is substantial. Most DMVs do not know what types of
hazardous loads a driver would be required to transport and,
therefore, would not be in a position to adequately inform
drivers which clearance process they would need to undergo.
Developing additional classifications to the system at this
time will most likely result in further customer service
complaints and will increase the margin for error.
The development of a pocket card also concerns the DMV.
Those concerns include possible document fraud, the lack of a
secure issuance process, and a lack of resources to administer
such a program. If this two-tiered program were to proceed with
the use of a pocket card, the committee must consider the
concerns of the state agencies and sanction either TSA, or DHS,
or DOT, for that matter, to take full responsibility for the
implementation of this program.
To summarize our position of the two-tiered system, in the
wake of the upcoming Real I.D. Act, all DMVs are concerned that
the administrative costs of implementing a new program focusing
on further classification of drivers would cause an undue
burden on an already overwhelmed staff and resources.
States fully understand and empathize with the hardships
faced by commercial drivers with HAZMAT endorsements. However,
please do not solve one problem by creating multiple other
problems and increasing the burden on the DMV.
The second issue deals with the HAZMAT program itself.
While TSA has made improvements to the program since the last
congressional hearing, problems still remain at the state
level. For example, in Georgia, commercial drivers are
receiving clearance letters before TSA notifies the state. This
requires the state to manually verify the clearance with TSA
and creates a delay in customer service.
Montana needs more TSA agents to accommodate the drivers
who are traveling 200 miles or more to apply for a threat
assessment. Virginia is spending countless hours contacting
other states to verify if a driver transferring to their state
has truly applied for and received a threat assessment from the
previous state of licensure. So it is important that TSA follow
up with the states to remedy these administrative problems.
And the third and last issue is the use of the Commercial
Drivers License Information System, or CDLIS, to communicate
the driver's threat assessment from TSA to the DMV. Since 1992,
the federal government and the states have partnered to use
CDLIS to manage the commercial driver program.
TSA's decision not to use this network has created an added
burden on the states to share this information. DMVs have
reported that they are making due with the process in place,
but most indicate the process is burdensome. Many of state's
complaints are directly related to delays in receiving threat
assessment information, which is not integrated into their
driver licensing process today.
States have to manually contact another state to assess a
driver's status relative to HAZMAT endorsements. In addition,
states such as Missouri must contact TSA directly for written
assessment confirmation to ensure they are signing the correct
expiration date based on the transfer requirements defined by
the rules.
Congress recently approved the CDLIS modernization project
in the highway bill. And the DMV desired solution is for DHS to
integrate and to fund a process to transfer driver threat
assessment from TSA to the DMV as part of the CDLIS
modernization project.
Mr. Chairman, thank you for the opportunity to share our
members' concerns. I welcome your questions.
[The statement of Ms. Lewis-Pickett follows:]
Prepared Statement of Linda Lewis-Pickett
Good afternoon, Chairman, and distinguished Members of the House
Subcommittee on Economic Security, Infrastructure Protection, and
Cybersecurity. My name is Linda Lewis-Pickett, and I serve as the
President and CEO of the American Association of Motor Vehicle
Administrators. Thank you for the opportunity to testify on behalf of
AAMVA to discuss reforming the hazardous materials endorsement (HME)
background record checks (BRC) program administrated by the
Transportation Security Administration (TSA).
AAMVA Background
Founded in 1933, AAMVA is a state-based, non-profit association
representing motor vehicle agency administrators, senior law
enforcement officials and industry in the United States and Canada. Our
members are the recognized experts who administer the laws governing
motor vehicle operation, driver credentialing, and highway safety
enforcement. AAMVA plays an integral role in the development,
deployment and monitoring of both the commercial driver's license (CDL)
and motor carrier safety programs. The Association's members are
responsible for administering these programs at the state and
provincial levels. As a non-regulatory organization, AAMVA uses
membership expertise to develop standards, specifications and best
practices to foster the enhancement of driver licensing administration
Today, I will:
Discuss the impacts of a ``two-tier'' credentialing
system on state DMVs,
Cite our outstanding concerns and unresolved problems
with TSA practices in administering the CDL-HAZMAT program, and
Recommend this program be integrated into the
Commercial Driver's License Information System (CDLIS)--a
clearinghouse and depository of commercial motor vehicle
operator licensing, identification and disqualification history
Impact of Two-Tier System
A ``two-tier'' credentialing system attempts to differentiate
between commercial drivers hauling ``very'' hazardous materials and
those transporting ``less'' hazardous materials.
Some organizations, working on behalf of hardworking commercial
drivers across the nation, have argued for such a change. AAMVA and its
member states empathize with the hardships faced by drivers seeking
HAZMAT endorsements. However, solving one problem for commercial
drivers, by creating a multitude of others for state motor vehicle
agencies, creates undue burden without proper consideration of program
ramifications.
A ``two-tier'' system is difficult to implement at the state level
because it requires costly and unnecessary DMV system changes to
establish additional HAZMAT designations while these agencies are
stretching to implement other federal requirements such as the Motor
Carrier Safety Improvement Act (MCSIA), the Help America Vote Act
(HAVA), REAL-ID and state government mandates. Resources and staff
throughout the state agencies have already been stretched thin, and to
add a new HAZMAT designation would pull these resources away from the
important goals they are already striving to accomplish.
Implementing a two-tier system would also require broad-based
training for DMV employees, as well as the revising and republishing of
TSA-approved forms and notices. This training requires employees and
systems to undergo undue change, and to adjust their business practices
accordingly. The effect of revised training could lead to increased
customer service wait times. The need to train personnel would further
extend beyond the DMV. First responders, emergency personnel, and
safety officials alike would also have to be trained in recognition of
proper placards and identification documents for HAZMAT shipments. The
revision and republication of TSA forms would require transportation
officials to be able to recognize, utilize, and adapt to these new
processes.
Suggestions have further included an identifiable ``pocket card''
that would designate which shipments a driver is certified to
transport. AAMVA has concerns that creation of additional
identification credentials could provide further loopholes for the
unscrupulous to exploit. Document security is one of the primary
concerns facing our administrators today as they work to shore up
homeland security and deter identity fraud and identity theft. In the
past few years, state Departments of Motor Vehicles have made great
strides in preventing the proliferation of these crimes. AAMVA also has
concerns that if such a credential were created, how would the document
effectively tie the shipper of hazardous material to the actual
shipment the driver is carrying?
It is premature to consider two separate endorsement designations
while failing to resolve outstanding issues. The states are currently
working within the confines of a system that is improving, but still
developing. Problems in the HAZMAT endorsement program are being
identified and resolved. It would be an inappropriate time to
complicate matters by adding designations to an already complicated
program.
Outstanding Concerns and Unresolved Problems
TSA has made improvements to the HAZMAT endorsement background
record check program since the last Congressional hearing in May 2005.
But the agency must move with haste to remedy all programmatic
problems. For example:
In Georgia, commercial drivers are receiving clearance
letters before TSA notifies the state. Customers who have
received their clearance letters come into a DMV expecting to
receive their endorsement while agency staff have received no
such approval. In order for the agency to resolve this
discrepancy, the state must manually verify the clearance with
TSA, creating a delay in customer service.
The State of Montana needs more TSA agents to
accommodate the drivers who are traveling distances of up to
200 miles to apply for a threat assessment.
States like Virginia are spending countless hours
contacting other states to verify if a driver transferring from
another state and applying for a new state commercial license
has truly applied for and received a HAZMAT endorsement in
another state.
Improving the Program
Since 1992, the federal government and the states have partnered to
use the Commercial Driver License Information System or CDLIS to manage
the commercial driver program. Instead of TSA using this network,
states were compelled to cobble together an inefficient, costly and
vulnerable procedure for processing, sharing and communicating driver
threat assessments.
The simple solution is to integrate the transfer of driver threat
assessments from TSA to DMV into the CDLIS modernization project.
AAMVA's proposal allows TSA to use the Gateway infrastructure it has
already developed to seamlessly interface with the State's existing
driver license programs. TSA may use the AAMVA Gateway to perform a
CDLIS search or verification inquiry transaction on either the front
end of the threat assessment process (submission of the application
data) or the back end of the threat assessment process (prior to
submission of the threat determination). The purpose of the inquiry is
to verify that the applicant has been added to both the State's
database and the CDLIS central site's database and that the state and
driver's license number are correct. Once TSA has validated that this
information is correct and that it is entered into both the state and
CDLIS systems, TSA may use the Gateway to electronically deliver the
threat determination to the States in a manner that is automated and
integrated with their existing CDLIS system. The States prefer this
option because it searches the CDLIS central site for the current state
of record in the event that a license transfer has occurred between the
time of application and the time of the report threat determination. If
a transfer from one state to another has occurred, then CDLIS notifies
both the old and new state of record.
Integration of threat determination into this system could not
occur at a more opportune time. Congress has authorized funding for the
modernization of CDLIS. As upgrades are being made to the current
system, it makes sense to include the capability of transmission of
threat determination information to the improvements that will be made.
A complete outline of the proposal of using CDLIS as a solution is
detailed in the accompanying attachment.
Recommendations
To recap, we strongly suggest that the implementation and
administration of HAZMAT class endorsements not be separated into two
tiers and forced upon the states.
The only way a two-tier system is workable is if TSA assumes all
responsibility for the funding, administration and oversight of this
program, as well as the issuance and security of any credentials
associated with it.
Second, we urge Congress to require TSA to work with the states to
integrate the HAZMAT threat communications function into the CDLIS
modernization project, authorized and funded in the Highway Bill. We
ask that Congress consider the attached CDLIS modernization project
proposal and require TSA to work with the states to integrate the
HAZMAT threat communications function.
On behalf of AAMVA and its members, thank you for the opportunity
to testify. I've concluded my testimony and welcome any questions from
the subcommittee.
Mr. Lungren. Thank you, Ms. Lewis-Pickett, for your
testimony.
The chair now recognizes Mr. Scott Madar, the assistant
director of the Safety and Health Department at the
International Brotherhood of Teamsters, to testify.
STATEMENT OF SCOTT MADAR
Mr. Madar. Good afternoon, Mr. Chairman and members of the
subcommittee. My name is Scott Madar, and I am the assistant
director of the Safety and Health Department of the
International Brotherhood of Teamsters. Thank you for the
opportunity to testify today on behalf of the hundreds of
thousands of Teamster drivers who make their living driving on
our nation's roads, oftentimes carrying hazardous materials.
We recognize the need for security threat assessments and
are therefore making every effort to ensure that the system
balances the need for a safe and secure industry with the
rights of drivers to hold good jobs. The Teamsters have
testified previously about these issues and have not received
any response from TSA.
Many of our concerns still remain. And I briefly highlight
some of our recommendations here today.
By way of background, it is important to point out that,
although a commercial driver is not technically required to
possess a HAZMAT endorsement, from a practical standpoint it is
usually necessary for making professional truck drivers to have
such an endorsement.
The vast majority of Teamster drivers do not exclusively
transport hazardous materials or non-hazardous materials. Thus,
the loss of an endorsement will in most, if not all cases, have
the same effect of a total loss of a CDL for a driver employed
in the LTL industry. For this reason, it is imperative that the
process be made as fair as possible.
The Teamsters Union understands that one potential revision
to this process involves establishing a category of security-
sensitive materials. Only those individuals hauling these
security-sensitive materials would be required to undergo a
background records check.
This proposal would be of no benefit to Teamster drivers,
since Teamster companies carry nearly all classes of hazardous
materials. Therefore, it would be likely that all Teamster
drivers would need to undergo the background records check,
even with this revision.
Teamster drivers are frustrated at the limited number of
locations where they can be fingerprinted. The TSA Web site
provides a list of TSA agent fingerprint collection locations
organized by state.
However, the TSA has not made it clear that a resident of a
TSA agent state may utilize any TSA agent collection location.
It has been our experience that most drivers do not know that
they may use a collection location outside of their home state.
There is significant variability among the 17 non-TSA agent
states. Information regarding the HAZMAT background check
process is often difficult to find. To be fair, there are some
states that had developed detailed informational sites on the
Internet that are easy to find and easy to navigate. However,
there are a number of states that do not have any information
available on the Internet.
The fees imposed by the non-TSA agent states vary widely
and often exceed the fees imposed by the TSA. Some non-TSA
agent states have not embraced technology and still transmit
fingerprints on paper, which slows the record check process.
Lastly, there is at least one state, New York, which has
implemented regulations that are more stringent than the
federal regulation. New York has a look-back period of 10
years. There is no waiver process and a very limited appeals
process available to drivers who reside there.
Because of the variability among states, the Teamsters
Union would support preemption to create a uniform standard
applied to all drivers nationwide.
With regard to the excessive costs associated with this
program, the Teamsters Union has stated many times that it does
not believe that the drivers should have to bare the costs of
these requirements. The fees imposed should be divided among
all affected parties, including the employers and the federal
government.
In other sectors of transportation, the federal government
has provided security assistance. And this sector of
transportation should receive the same benefit.
The Teamsters Union remains concerned about the
inappropriate sharing of personal information with employers.
We are committed to protecting the privacy of our members and
will work to limit the notification process to the applicant's
background check status only. Employers should not be provided
a complete and detailed background check of each of their
employees, regardless of the security determination.
The list of disqualifying offenses must be improved. We
believe the list is overly broad and should be revised to
better reflect those crimes that are more closely related to
terrorism risks or threats to national security.
While none of the listed crimes can be condoned, many are
not indicative of an individual's propensity to commit a
terrorist attack, and the TSA has offered no evidence to the
contrary.
The Teamsters Union is pleased that the TSA adopted a
waiver process, and we consider it an essential element in
ensuring that individuals who made mistakes in the past are not
unfairly denied employment opportunities in the present.
However, we continue to believe that appeal and waiver
decisions should be made by an administrative law judge or some
other third party not officially included in the TSA hierarchy.
This would bring fairness and consistency to a system that is
essential to both employee rights and national security.
The Teamsters Union remains concern as to how foreign
drivers will be treated under this rule. The highway bill
directs that foreign drivers shall be required to undergo
background records check similar to those of U.S. drivers. This
union continues to believe that the TSA should ensure that
foreign drivers are subject to equally thorough background
investigations, that foreign drivers are disqualified on the
same grounds as U.S. drivers, and that there must be a
mechanism for U.S. inspectors to determine the status of
foreign drivers.
The Teamsters Union contends that this is absolute minimum
that should be acceptable regarding foreign drivers and that
the highway bill requirements do not meet this level of
security. The TSA must strive to achieve one level of security
for all drivers, including foreign drivers.
In conclusion, the Teamsters Union appreciates the efforts
made to balance the interests of increased security with the
protection of drivers' rights. It is our hope that these
balancing efforts will continue.
The recommendations that I have highlighted here, as well
as others, are discussed in much greater detail on my written
comments and have been submitted for the record. I would
encourage their review and consideration.
With that, I thank you again for the opportunity to testify
today. I would be happy to answer any questions you may have.
[The statement of Mr. Madar follows:]
Prepared Statement of Scott Madar
Mr. Chairman and Members of the Subcommittee:
My name is Scott Madar, and I am the Assistant Director of the
Safety and Health Department of the International Brotherhood of
Teamsters. Thank you for the opportunity to testify today on behalf of
our 1.3 million members regarding such an important issue: Reforming
HAZMAT Trucking Security. The Teamsters Union represents hundreds of
thousands of drivers who make their living driving on our nation's
roads, from interstate highways to city streets, oftentimes carrying
hazardous materials.
As a general matter, the International Brotherhood of Teamsters
recognizes that in the post 9/11 world, there is clearly a need to
strengthen security in the United States and in particular in the
nation's transportation system. However, the Teamsters Union continues
to question the efficacy of the current criminal component of the
background checks of commercial drivers with hazardous materials
endorsements as a means to prevent terrorism. With that being said, the
Teamsters have accepted that these background checks are part of the
government's efforts to make the nation more secure. We recognize that
conducting security threat assessments across the transportation
network is part of the Federal Government's responsibility, and are
therefore making every effort to ensure that the system balances the
needs for a safe and secure industry with the rights of drivers to hold
good jobs.
While the Teamsters appreciate the attempts of the Transportation
Security Administration (TSA) to balance security with the rights of
drivers, the Teamsters Union continues to believe that the process
could be improved to root out true risks, provide a level of fairness
and due process for affected workers, ensure privacy rights, provide
for timely processing of applications and threat assessments, and
ensure that workers are not unfairly kept from their chosen profession.
The Teamsters have testified previously, before the House Committee
on Transportation and Infrastructure's Subcommittee on Highways,
Transit and Pipelines, about these issues and have not received any
response from TSA. Many of our concerns still remain and are included
here for review. I will detail some of these recommendations below.
Loss of HME = Loss of Work:
Section 1012 of the USA PATRIOT Act directed States not to issue
licenses to individuals to transport hazardous materials unless a
background check of the individual has been conducted and the
Department of Transportation has determined on the basis of the
background check that the person does not pose a security threat. The
hazmat ``license'' referred to in the statute is actually an
endorsement on the individual's commercial driver's license (CDL) which
permits that driver to transport hazardous materials. A hazmat
endorsement (HME) is necessary for any driver to transport a shipment
of any amount of hazardous material that requires placarding.
It is important to point out that although a hazmat endorsement is
not technically required for a driver to possess a CDL, from a
practical standpoint it is usually necessary for many professional
truck drivers to have such an endorsement. The vast majority of
Teamster drivers do not exclusively transport hazardous materials or
non-hazardous materials. Particularly in the less-than-truckload (LTL)
sector, any given shipment may contain a placardable amount of
hazardous materials. For this reason, LTL carriers generally require,
as a condition of employment, that their drivers have HMEs. Thus, the
loss of an endorsement will in most, if not all, cases have the same
effect as a total loss of the CDL for a driver employed in the LTL
industry.
Because of the negative impact the loss of an HME has on a driver's
ability to work, it is imperative that the process be made as fair as
possible.
Rumored Revisions:
The Teamsters Union has heard speculation that potential revisions
to the hazmat endorsement background check process might include
establishing a category of security-sensitive materials. Anyone hauling
these security-sensitive materials would be required to undergo a
background records check. Those individuals hauling hazmat that are not
security-sensitive materials would not need a background records check.
This proposal would be of no benefit to Teamster drivers. The
carriers for whom Teamster drivers work carry nearly all classes of
hazardous materials. Therefore, it would be likely that all Teamster
drivers would need to undergo the background records check, even with
this revision.
Accessibility:
One of the primary complaints that we have received from our
membership revolves around the locations where drivers can get
fingerprinted. Drivers are very frustrated at the limited number of
locations where they can be fingerprinted.
The Transportation Security Administration has contracted for the
collection of fingerprints in TSA-Agent states. Seventeen non-TSA-Agent
states have opted to collect and process fingerprints on their own. The
TSA website provides a list of TSA-Agent fingerprint collection
locations, organized by state. Although a resident of one TSA-Agent
state may utilize the collection services of any TSA-Agent collection
location, it is not clearly stated in any TSA information. It has been
our experience that most drivers do not know that they may use a
collection location outside of their home state.
When attempting to contact the TSA by telephone regarding hazmat
background checks, it is very difficult to get a live person with whom
you can speak. It has been our experience that the TSA staff is
generally knowledgeable and helpful. However, it has also been our
experience that the states and the field staff are not well informed.
State Variability:
In a number of the non-TSA-Agent states, information regarding the
hazmat background check process is even more difficult to find. To be
fair, there are a number of states that have developed detailed
informational sites on the Internet that are easy to find and easy to
navigate. However, there are a number of states that do not have any
information available on the Internet.
The fees imposed by the non-TSA-Agent states vary widely and often
exceed the fees imposed by the TSA. Some non-TSA-Agent states have not
embraced technology and still transmit fingerprints on paper, which
slows the records check process.
Lastly, there is at least one state, New York, which has
implemented regulations that are more stringent than the federal
regulations. This state has a look-back period of 10 years. There is no
waiver process and a very limited appeals process available to drivers
who reside in this state.
Because of the variability among states, the Teamsters Union would
support preemption to create a uniform standard applied to all drivers
nationwide.
Costs to Drivers:
The Teamsters Union has gone on record (TSA-2004-19605) stating
that it does not believe that the drivers should have to bear the cost
of these requirements. In the Department of Homeland Security
Appropriations Act, Congress intended for the TSA to charge fees to
recover the costs associated with performing the credentialing and
background checks [P.L. 108-90, Section 520]. However, when this
language is examined carefully, it is clear that there is no
requirement for drivers alone to bear the brunt of these fees. As the
Teamsters Union has stated previously, this is a Federal program that
already imposes a substantial additional burden on drivers. Drivers
should not be required to also sustain the burden of funding the
program. The fees imposed should be divided among all affected parties,
including the employers and the Federal Government. In other sectors of
transportation, the Federal Government has provided security assistance
and this sector of transportation should receive the same benefit.
The TSA has indicated in its fee rulemaking that a significant
portion of the costs being passed on to the drivers are those
associated with the creation and maintenance of databases, disaster
recovery, and other infrastructure costs, including over $4.7 million
in start up costs. The Teamsters Union contends that these fees should
not be passed on to the drivers. These costs should be absorbed by the
Federal Government as they should not be considered part of ``providing
the credential or performing the background record checks.'' [P.L. 108-
90, Section 520] Only those fees associated with collecting information
should be passed on to the drivers and employers.
The TSA has also made it clear that these fees will likely go up,
as they are scheduled for biennial reviews. ``Pursuant to the Chief
Financial Officers Act of 1990, DHS/TSA is required to review these
fees no less than every two years (31 U.S.C. 3512).'' [69 Fed. Reg.
65335, November 10, 2004] and these fees have not been adjusted for
inflation [id. at 65337]. As stated previously, there are costs
associated with States that chose to perform the information collection
and transmission functions themselves. These States are allowed to
charge a fee under their own user fee authority and are responsible for
establishing their own State fee to recover the costs of performing
these services. Currently, drivers in different States are being
charged different amounts to obtain their HME. Therefore, the Teamsters
Union believes the costs as proposed underestimated the actual costs
being imposed on drivers.
In light of the estimated costs ($72 million) for the
implementation of this program, the Teamsters Union questions whether a
different program could be established that would achieve the same
results in a more efficient and less costly manner. We have suggested
that the TSA carefully reevaluate all aspects of this program to
determine if the same level of security could be achieved in a more
cost effective manner by taking advantage of existing systems and
infrastructure, for example. Any monetary savings that are realized
could be used for other security measures. An expenditure of this size
addressing another area of security, such as chemical plant security,
would protect a larger portion of the population from a terrorist
event. (An event involving a breech of chemical plant security has the
potential to be much more devastating than any that could be achieved
by a single hazardous material-carrying commercial motor vehicle.)
Privacy:
The Teamsters Union remains concerned about the inappropriate
sharing of personal information with employers. The recently enacted
SAFETEA-LU included language directing the development and
implementation of a process for notifying hazmat employers of the
results of the applicant's background record check. We remain committed
to protecting the privacy of our members and will work to limit the
notification process to the applicant's background check status only.
Employers should not be provided a complete and detailed background
check of each of their employees, regardless of the security
determination.
Disqualifying Offenses:
The list of disqualifying offenses must be improved. The November
2004 Interim Final Rule published by the TSA disqualifies drivers from
possessing an HME for a variety of offenses, some of which have little
or no relation to whether the person poses a national security threat.
The list of disqualifying offenses should be better defined to include
only those offenses that have a consistent and direct link to national
security.
In the preamble to the November 2004 Rule, the TSA stated that the
crimes listed in Sec. 1572.103 indicate an ``individual's
predisposition to engage in violent or deceptive activity that may
reasonably give rise to a security threat.'' [69 Fed Reg. 68723]. The
TSA indicated that it was attempting to model this list of
disqualifying crimes on the Maritime Transportation Security Act
(MTSA). However, the MTSA requires disqualification only for felonies
that could cause ``the individual to be a terrorism security risk . .
.'' [Section 70105(c)(1)(A)(i)]. The Teamsters Union contends that the
list of crimes adopted in the November 2004 Interim Final Rule do not
meet these criteria. The list is overly broad and should be revised to
better reflect those crimes that are more closely related to terrorism
risks, or threats to national security.
The inconsistencies cited above are especially problematic because
some of the offenses included in the Interim Final Rule are not related
to whether a person poses a true security risk. For example, any felony
involving ``[d]ishonesty, fraud, or misrepresentation, including
identity fraud'' constitutes a disqualifying offense. This is an
extremely broad and somewhat vague description of crimes. The types of
offenses covered could include writing bad checks, perpetrating
insurance fraud, or other similar offenses. While certainly not
admirable, such crimes do not in any way indicate a propensity towards
terrorism. In addition, certain dishonesty-based offenses could
constitute a felony in one State but not another. If there are specific
fraud type crimes that concern the TSA, such as forging passports,
immigration papers, or other identity documents, these offenses should
be specifically enumerated rather than included in a broad category of
fraud offenses. By listing specific crimes instead of broad categories
of offenses, the TSA can more narrowly tailor the Rule to better serve
the purpose of preventing terrorism, and also help ensure more equal
enforcement between the various States. While none of the listed crimes
can be condoned (and workers, like all individuals, should and do pay
an appropriate criminal penalty) many do not demonstrate a propensity
to commit a terrorist or security attack, and the TSA has offered no
evidence to the contrary. Once these individuals have paid their debt
to society they should not be unfairly restricted from obtaining
employment.
Indictment:
Despite the objections of the Teamsters Union, the Rule (November
2004 Interim Final Rule) includes provisions that disqualify drivers
who have been merely accused of an offense, even if they have not yet
been convicted. Not only is a person disqualified from possessing an
HME if convicted of a listed offense, but under the Rule having a want,
warrant or indictment for one of the offenses is also a basis for
disqualification. An indictment can often be obtained with little hard
evidence and certainly less evidence than is needed for a conviction.
To deprive a person of the ability to earn a living under these
circumstances is improper and contrary to due process.
Both the aviation background checks and the MTSA require exclusion
for felony convictions only. It is patently unfair for the Federal
Government to essentially exclude someone from employment because that
person has allegedly committed an offense. More importantly, as the
Rule is written, it appears that a basic tenet of this country's legal
system, innocent until proven guilty, would not apply to commercial
drivers who apply for an HME. If disqualification based on an
indictment alone were to be permitted, it should only be in the most
extenuating circumstances and should be limited to the crimes most
likely to be linked to a security threat, such as terrorism, treason,
and espionage.
This provision of the Rule effectively extends the period of time
that a person is disqualified from holding an HME beyond the periods
stipulated in the Rule. An individual would be disqualified from
holding an HME during the period of his/her indictment, and then for
another seven years after being released from prison (if convicted).
Someone could be under indictment for years before acquittal. During
this time, that individual would not be able to hold an HME and could
very well be unfairly forced out of a job. If convicted of a crime, we
question how the time requirements would apply. As in the above
example, if someone is under indictment for two years and then
convicted, the regulations would bar that person from holding a hazmat
endorsement for nine years (instead of seven) from the date of
conviction. If this is the case, then the Rule would serve to extend
the period during which an individual would be barred from holding an
HME for slow prosecution--not for a genuine security reason.
Characterization of Offenses:
Despite the Teamsters' objections, the November 2004 Interim Final
Rule lacks any mechanism for a person to challenge the assertion that a
particular crime constitutes a disqualifying offense. This is
particularly a problem with the broader offenses. Thus, the problem may
be partly resolved if the list of disqualifying crimes is revised to
include more specific offenses. Nevertheless, because criminal codes
can vary greatly from State to State, as the Interim Final Rule is
currently written, there may be circumstances where a person is
convicted of an offense that seems to constitute a disqualifying
offense but was not necessarily intended by TSA to be one. The
Teamsters Union continues to urge for language granting drivers the
ability to challenge the characterization of a particular offense
either in the appeal or waiver process.
Appeal and Waiver Process:
The Teamsters Union is pleased that the TSA adopted a waiver
process and we consider it an essential element in ensuring that
individuals who made mistakes in the past are not unfairly denied
employment opportunities in the present.
Since it is still early in the process and we have had limited
feedback from our members regarding this process, we continue to
believe that modifications must be made to this process to ensure that
it serves its intended and stated purpose. In particular, appeal and
waiver decisions should be made by an Administrative Law Judge or some
other third party not officially included in the TSA hierarchy. This
would allow employees to make their case in front of an impartial
decision-maker not bound by political pressure or subject to agency
interference. The current process forces workers to appeal to or seek a
waiver from the same agency that just determined that they are a
security threat. Furthermore, given the political realities of security
threat assessment, the TSA may be reluctant to grant appeal or waiver
requests to convicted felons. Administrative Law Judge decisions would
establish case precedent that would better define what constitutes a
security risk. This would bring fairness and consistency to a system
that is central to both employee rights and national security. For
these reasons, we urge the modification of the appeal and waiver
processes to include the independent review of these requests.
Subjective Determination:
The Teamsters Union has serious concerns over Sec. 1572.107 of the
Interim Final Rule which allows the subjective denial of a hazmat
endorsement if TSA ``determines or suspects'' the applicant of posing a
``threat to national security or to transportation security.'' This
provision further allows denial of hazmat endorsement if an individual
has ``extensive foreign or domestic criminal convictions'' or ``a
conviction for a serious crime not listed in Section 1572.103.'' The
TSA asserts that it needs to have a ``level of discretion to carry out
the intent of the USA PATRIOT Act and responsibly assess threats to
transportation and the Nation, where the intelligence and threats are
so dynamic.'' [69 Fed. Reg. 68736].
We contend that this section grants the TSA overly broad authority
and presents opportunities for abuse because Sec. 1572.107 essentially
allows TSA to make security threat determinations arbitrarily. We have
urged the TSA to strike this provision or, at a minimum, to place
restrictions on the use of this provision by specifically citing the
criteria to be used to disqualify someone under this section.
Despite the added level of review by the Assistant Secretary
required by this section, the Teamsters Union again urges the use of a
formal, third-party waiver process as discussed above. The TSA claims
that because individual circumstances are taken into account under a
determination based on Sec. 1572.107, there is no reason for a waiver.
[69 Fed. Reg. 68727]. We argue that determinations resulting from
subjective decisions, based on broad, ill-defined criteria, should be
afforded independent review. Additionally, we urge the establishment of
a process using either the Inspector General or possibly an advisory
committee, to carefully monitor the use of this provision to ensure
that it is used ``cautiously and on the basis of compelling information
that can withstand judicial review.''
Notification Timeline:
The Teamsters Union remains concerned that the time limits
stipulated in the November 2004 Interim Final Rule are too short.
Specifically, each State is now required to notify HME holders at least
60 days prior to the expiration date of their HME. The States must
notify the HME holder that he/she may begin the renewal process up to
30 days prior to the HME expiration date. The TSA warns that HME
holders should begin the renewal process at least 30 days before
expiration, otherwise the background check may not be completed before
the expiration date. [69 Fed. Reg. 68732]. The Teamsters Union urges an
increase in the notification timeline to at least 90 days. The current
notification requirement timeline of 60 days provides insufficient time
for the HME holder to complete all aspects of the security threat
assessment should there be a need for an appeal or waiver. Remember -
these appeal or waiver processes may include a request for releasable
materials upon which the Initial Determination was based, as well as a
request to correct any inaccurate information that resulted in an
unfavorable Initial Determination, all of which will require additional
time.
Application to Foreign Drivers:
The Teamsters Union remains concerned as to how foreign drivers
will be treated under this Rule. The language included in the SAFETY-LU
directs that a commercial motor vehicle operator registered to operate
in Mexico or Canada shall not operate a commercial motor vehicle
hauling hazmat in the United States until the operator has undergone a
background records check similar to the background records check
required for US drivers. This must occur within 6 months of the
effective date however, the Director of the TSA may extend this an
additional 6 months. Therefore it is possible that foreign drivers can
be hauling hazmat in the United States until August of 2006 before they
will be subject to background records check requirements.
The Teamsters Union asserted previously (Docket No. TSA-2003-14610)
that the TSA should ensure that foreign drivers are subject to equally
thorough background investigations and that they are disqualified on
the same grounds as U.S. drivers. In addition, a mechanism must exist
for U.S. inspectors to determine easily whether foreign drivers are
disqualified from transporting hazardous materials pursuant to such
disqualification. The Teamsters Union contends that this is the
absolute minimum that should be acceptable regarding foreign drivers
and that the SAFETEA-LU requirements do not meet this level of
security. It would be utterly unconscionable to permit Mexican or
Canadian drivers to carry hazardous materials under the same
circumstances in which a U.S. driver would be prohibited from doing so.
The TSA must strive to achieve one level of security for all drivers--
including foreign drivers.
Duplication of Effort:
The Teamsters Union continue to question why the TSA has not
studied the possibility of combining other programs currently underway
within the Department of Homeland Security with the security threat
assessment program for hazmat drivers. The TSA had indicated that it
will consider the consolidation of several programs to improve
efficiency while fulfilling security needs. [69 Fed. Reg. 68723].
It seems logical to the Teamsters that all security threat
assessment programs should utilize the same, or nearly the same, system
for security threat determinations, as well as the same infrastructure
such that the costs associated with these programs (both to the agency
responsible for the programs and to the individuals involved) can be
minimized. We believe that consolidation of security programs will
offset some of the costs associated with this program and minimize any
additional fees that will be assessed on the hazmat endorsed drivers as
a result of this program. To that end, the Teamsters urge examination
of all security threat assessment programs, as well as the
infrastructure needed to administer these programs, with the ultimate
goal of consolidating as many as possible.
7/5 Year Look-Back Period:
The Teamsters Union continues to urge the reconsideration of the
existing look-back periods. Currently, the Interim Final Rule provides
for individuals to be disqualified for a period of seven years
following a conviction for a disqualifying offense or for five years
following release from incarceration for a disqualifying offense. It is
clear that these time frames were adopted from the Maritime
Transportation Security Act (MTSA), in an effort to allow for unity in
the way in which transportation workers are treated. The Teamsters
Union notes, however, that the USA PATRIOT Act gives the TSA greater
discretion in determining the appropriate look-back period in relation
to hazardous material endorsements than does the MTSA. As such, the TSA
should exercise its discretion to impose shorter look-back periods
under the USA PATRIOT Act and still allow for consistent requirements
to be implemented under the MTSA. We urge the reconsideration of the
five and seven year periods for disqualification.
Conclusion:
The Teamsters Union appreciates the efforts made to balance the
interests of increased security with the protection of drivers' rights.
It is our hope that these efforts will continue and that the
recommendations discussed above will be incorporated to further improve
this balance.
With that, I thank you again for the opportunity to testify today.
I'd be happy to answer any questions you may have.
Mr. Lungren. Thank you, Mr. Madar, for your testimony.
And I thank all the witnesses on this panel for your
testimony. It is very, very helpful.
I am going to start the questions. I will try and limit
myself to 5 minutes. And we will go for probably a couple of
rounds.
Mr. Madar, you mentioned that one of the areas, one of the
bones of contention in all of this is the list of crimes for
which one is rejected for this credential. Can you give me an
idea of some of the crimes? Or is that in your written
testimony that you think are not necessary to this act?
Mr. Madar. Thank you, Chairman.
There are some crimes detailed in my written testimony. But
to answer your question here, one crime in particular that is
listed by TSA is the crime of fraud, which includes everything
from bad checks to identity theft. And it is our recommendation
that, if TSA is attempting to address identity theft concerns,
then they should specify that crime and not use a broad
category.
Mr. Lungren. What about crimes of domestic violence? Do you
get into that?
Mr. Madar. We did not specify whether that would be
included in our list, but that would be one that we might
consider, also, possibly robbery. There are a number of
crimes--and I am not a lawyer, so I can not go into great
detail--but there are a number of crimes--
Mr. Lungren. Could you submit for the record the position
of the Teamsters on what crimes you believe ought to be
eliminated from consideration right now?
Any others on the panel have a position on crimes that are
now included as those as disqualifiers that ought not to be
there anymore?
Ms. Lewis-Pickett. Mr. Chairman, I would just like to
follow up on Mr. Madar's response to that, particularly the
crime of financial fraud.
Within the DMV, that is probably one of the biggest
challenges we have, with crimes within the DMV, is under-the-
counter signature fraud of signed documents. So while we are
thinking of possibly eliminating something like that, I think
we should look at the far-reaching impact that that crime
really could have.
Mr. Lungren. Any others have any comments on the crimes
that are now included as disqualifiers?
Okay, Mr. Laizure, do you have any idea whether it is
owner-operators or the large trucking companies that handle
most of the security-sensitive materials?
Mr. Laizure. At this time, it is mostly the big boys. The
small business people will go through contracts and stuff like
that and do the--the security sensitive, as related to national
security now, not in relation to a list that is going to have
to be developed for things that are--you know, rather than DOT
list that is for accident response and stuff like that, there
is going to have to be another list made up that says, ``This
is something that can be weaponized or readily used.''
And once that is decided, then, you know, there is going to
be a lot of stuff that does not require that people can get
into. And that is one of the problems I run into every day, is
because of my small size, I have to go through some other
people to get at the base contract.
Mr. Lungren. Mr. Russell, you have indicated that the way
it works now is a burden for your folks, that it unnecessarily
includes people that really do not need to be included.
And yet, Mr. Madar says that it really would not make any
difference to his membership, who presumably works for many of
your companies, because they would probably all need to have
it, in order to maintain their jobs. How do you respond to
that? You seem to have two different positions on this.
Mr. Russell. It is two different positions because the
industry is segmented. The LTL business, where there are many
small packages in each trailer, may, in fact, have hazardous
material in one box, or two cartons, or three crates.
In the truck-load industry, which is the largest single
segment of the trucking industry--
Mr. Lungren. Right.
Mr. Russell. --you just have one industrial company's goods
in each trailer. And therefore, it is a more discreet decision
that the driver can make, because most large carriers--a very
small percentage of our business is, in fact, hazardous in the
weaponable sense.
Similarly, what we have found is that--I think I do not
fully agree with Mr. Laizure, because there are specialized,
dedicated fleets that handle the really dangerous stuff, the
weaponizable stuff, armaments, military stuff. Most of the
large carriers do not.
We do handle a lot of nail polish. And we do handle a lot
of Coca-Cola syrup or a lot of things that fall into the
category of now defined as hazardous but not weaponable, some
of the products you talked about when you began the meeting.
But I think that essentially most of the major movements are
done by small, specialized fleets.
And I think, with regard to Mr. Madar's comment, he is
right, because, for the LTL carriers, they carry whatever is
going in that box, not whatever is going in the trailer.
Mr. Lungren. Ms. Sanchez, you are recognized for--
Mr. Russell. I hope I am clear on that.
Mr. Lungren. Thank you.
Ms. Sanchez. Thank you, Mr. Chairman.
Again, thank you to the panelists.
Mr. Madar, I recognize that the current hazardous material
endorsement program has negatively impacted truckers. What, in
your opinion, what is the one change that we could make that,
if we made immediately, that would alleviate some of this
impact?
Mr. Madar. Congresswoman Sanchez, it is very difficult to
stipulate the one item that would make the biggest change for
us. But if I had to pick one, I think it would be to revise the
list of disqualifying offenses.
Ms. Sanchez. Do you have truckers who have been working,
trucking for a long time, and, all of a sudden, they come up
against this background check, and they have something in
there--I do not know, a domestic violence incident or something
like that--that all of a sudden just disqualifies them after
having been a trucker for 10 years? Is that what is going on
with your membership?
Mr. Madar. Well, it is still early in the process. And we
have only had limited feedback. We have had some reports from
our members that that is exactly what is going on, that they
have crimes in their past that they have paid for, and paid
their dues for, and now would technically disqualify them.
Ms. Sanchez. So are you saying that your member, even
though they may have committed a crime, served some time,
gotten it off their record, and have been trucking for a while
may lose their license because of the new background check
requirement?
Mr. Madar. Yes.
Ms. Sanchez. That is what you are seeing in your
membership? How many of your members have gone through this
type of background check? What percentage of them?
Mr. Madar. I do not have that information.
Ms. Sanchez. Okay. Thank you.
Ms. Lewis-Pickett, the ability of states to process the
required information for these background checks is different.
Is that an administrative problem for the departments? What can
we do at the federal level to help you assist in that?
Ms. Lewis-Pickett. Yes, that is a major problem that we are
hearing from all states, primarily because the process is not
integrated in the driver licenses programs that they
administer.
The membership, really, is recommending a solution of
integrating this process into the commercial driver license
information system, which is the network that is used to
transfer information, driver records, information about
commercial drivers. This process really is outside of that
business practice right now.
Ms. Sanchez. So you have this network where all the
departments are talking to each other, when they are checking,
cross-checking, somebody that has come from some other place
and has a commercial license?
Ms. Lewis-Pickett. That is correct.
Ms. Sanchez. Why is it, then, that the state of Virginia is
spending so much time on the phone, in fact, verifying what
might already be on the system?
Ms. Lewis-Pickett. But the process is not integrated into
the system. All of this is outside of the system. And what we
are saying--
Ms. Sanchez. So all the background checks are outside of
the system?
Ms. Lewis-Pickett. Absolutely.
Ms. Sanchez. Why is that?
Ms. Lewis-Pickett. TSA made the decision not to use the
network.
Ms. Sanchez. Thank you.
Ms. Lewis-Pickett. You are welcome.
Ms. Sanchez. Mr. Laizure?
Mr. Laizure. Yes, ma'am.
Ms. Sanchez. You mentioned in your testimony that you have
completed several background checks and have been fingerprinted
six different times.
Mr. Laizure. Yes, ma'am.
Ms. Sanchez. Why so many times? How much did these
processes cost you? I mean, what kind of bill are we looking at
for you, to have to go through all these checks?
Mr. Laizure. All of the checks, except for TSA's, which
when I renew my CDL I will have to redo, are usually $5 to $10.
They take me less than 30 minutes to go do at the county jail
or the sheriff's office.
Ms. Sanchez. So it is the same--you are going to get a set
of fingerprints each time at the same county jail?
Mr. Laizure. Yes, ma'am.
Ms. Sanchez. And then sending it off with whatever it is
that you are applying for?
Mr. Laizure. When you get your paperwork to go for your DOD
clearance, they send you a packet and they send you two cards.
You take them up to the county jail, because that is where they
do the fingerprint. They fingerprint you. You put them all in a
packet. And you send them off.
A year later, DOE wants it. Same form, two more cards, go
get it down. TSA wants it and says, ``You got to drive 170
miles, you know, and it is going to cost you $100. And all the
other times that you have done it do not count.'' And that is
all so you can haul nail polish and that kind of thing.
Ms. Sanchez. Thank you so much.
Mr. Lungren. Mr. Linder is recognized for 5 minutes.
Mr. Linder. Mr. Russell, what is the threat assessment that
they make? Several of you have mentioned the threat assessment.
Does that have to do with the material you carry?
Mr. Russell. Yes, my understanding is the definition of
threat assessment on materials that are weaponable, that create
weapons of mass destruction, as opposed to other HAZMAT
materials that have other negative consequences, but not that.
Mr. Linder. So you said that about 2 percent of your load
is HAZMAT. Does that include the fingernail polish and those
things?
Mr. Russell. Yes, we do no threat assessment. In other
words, we do not do any weaponable material.
Mr. Linder. To go back to your point, Mr. Laizure, do you
have a reason why TSA does not trust your local sheriff
department to fingerprint you and the DOD does?
Mr. Laizure. I have no idea. It is wasting tax money, time.
It has been done. And this is something that maybe we will have
to ask TSA about.
But how much of the process that you have gone through, to
go for DOD or DOE or something like that, are they going to
repeat? I mean, they are recreating the wheel again.
Mr. Linder. We are getting used to that here.
[Laughter.]
Mr. Laizure. I have got 18 of them. I do not need any more.
Mr. Linder. When you get fingerprinted for a DOD approval,
I presume those fingerprints go on the national fingerprint
list and they are there forever?
Mr. Laizure. I do not know where they go. DOD sends them to
one place. DOE sends them to another. They get digitized, I am
sure.
The only background I have on that is when I went for my
conceal permit. The sheriff could go in and punch it up and go,
``Yep, your prints are in there. Do not worry about it.'' If
the sheriff can find them, why can't TSA?
Mr. Linder. Not a bad question.
Mr. Russell, you said that some of these drivers are not
going to go back and get approved for hazardous waste?
Mr. Russell. It may be just a moment description of this.
Our average driver is 46 years old. I believe the average
Teamster is in the mid-50s, maybe a bit older. Wal-Mart's
average driver is in the early-50s. These people are not 25, 28
years old.
Most of them, in our case, have had HAZMAT certification
for years, 3 years, 5 years, 10 years. Most of them do not want
to be fingerprinted--
Mr. Linder. Why?
Mr. Russell. --because of alimony checks that bounced or
they did not pay their last rent 5 years ago or 20 years ago.
And we do criminal background checks, so it is not an issue of
what crime they may have committed. It is an issue of they just
do not want big brother watching them.
And the reality is, they can still make a living as an
over-the-road truck driver. There is a driver shortage. And
they just do not need to go through the process that will cost
them, and this chance is $100 if you get the prints and then
$400 or $600 by not working those days. And that is the
reality.
Mr. Linder. Mr. Laizure, you said that you can carry
weapons but you cannot carry a pistol for yourself.
Mr. Laizure. Yes, sir.
Mr. Linder. Many states now have concealed carry. Does that
specifically exempt you?
Mr. Laizure. Carry a handgun in Massachusetts and see how
far you get.
Mr. Linder. But many states allow them.
Mr. Laizure. I have got to go to all--I have got to go to
all 48 states, Canada and Alaska, okay? The minute I hit one of
those that does not, you know, honor my permit from the state
of Washington, first of all--and that is if it is driving
around in my pickup truck or whatever. The minute I get in a
commercial vehicle, I am going to jail, even in my home state.
There is nothing I can do. I have no authority. And I have
no tools to keep somebody from running me off the road. And we
have just put placards on the side--I can teach you in 10
minutes how to look at a truck and tell within about five
things of what is in the back.
Mr. Linder. I will pass. Thank you.
[Laughter.]
Thank you very much.
Mr. Lungren. You have been left speechless?
Ms. Jackson-Lee is recognized for 5 minutes.
Ms. Jackson-Lee. Thank you very much, Mr. Chairman and
ranking member.
I thank the witnesses. And thank you for your indulgence.
Airplanes sometimes are not as fast as trucks. And so I was not
able to be here at the very beginning, but I appreciate very
much the witnesses.
And I wanted to probe--I wanted to just call the roll. And
anyone that wants to correct me and add another agency, they
can. Department of Transportation, Homeland Security-Texas,
Transportation Security Administration, DOD, and DOE that seem
to be players in this particular complex set of circumstances.
Let me acknowledge that this is an important
responsibility, but it seems that we have sort of a morass of
overlapping confusion.
Let me ask Mr. Brown, who sees it from a different
perspective, that, if the administration were to change current
rules about hazardous material and create a new category for
security-sensitive hazardous material, how, in your opinion,
would that impact truckers? And it is my understanding that,
regardless of any changes, that truckers will still have to get
an endorsement for the new proposed category.
And if you could yield for a moment, because I want to
include Mr. Madar in the inquiry. And, Mr. Madar, I just want--
when I yield to you, I am going to ask Mr. Brown first--I want
you to be thinking about, ``Do we have enough truckers?'' And
this whole question of offenses, what offenses do you think can
be eliminated and have no bearing on whether or not the person
is the appropriate person to carry hazardous material?
I also understand that it is hard to be fingerprinted
because in many places you cannot find the offices to be
fingerprinted. We certainly should provide some relief for
that. If you could comment on that.
And, then, of course, there is a complex system of review,
where it seems that TSA is monitoring itself and it might be,
as I understand it, better to have an administrative law judge.
If you could comment on that and why that would be the better
approach, I would appreciate it.
I yield to you, Mr. Brown.
Mr. Brown. Thank you very much.
The impact on the driver of these changes--we have already
seen a very large impact, because presently all hazardous
materials are caught up in this dragnet. As we look at the
selection of materials that could be included on this security-
sensitive hazardous materials list, we range from the very
select high-order explosives and those kinds of things, which
most of us will easily agree should be on the list, to the very
broad list used currently by DOT.
I guess it is fitting that I am sitting in the middle of
the table, because I am suggesting really a middle ground from
those two extremes by looking at a list that a committee of
experts representing the United Nations, including experts from
the United States, have already agreed upon as a list
appropriate to the security for the world.
And I think that our coalition of members and our coalition
of associations submit that that is an appropriate starting
point. There is no doubt--
Ms. Jackson-Lee. So you would narrow the list by experts
looking and refining it more, putting aside radioactive
material and nuclear material? You would refine the list by
having experts look at it more closely and getting more refined
a list, separate from this long list, and also putting aside
radioactive and nuclear material?
Mr. Brown. Which are clearly included. The U.N. list is
inclusive of those materials, but excludes the fingernail
polish and other things, and tries to focus on truly security-
sensitive materials that could be used for weapons of mass
destruction.
Ms. Jackson-Lee. Thank you.
Mr. Madar?
Mr. Madar. Thank you, Congresswoman. You had a number of
questions, and I will see if I remember all of them.
[Laughter.]
Ms. Jackson-Lee. Thank you very much. Thank you.
Mr. Madar. With regard to the list of crimes that the
Teamsters would recommend be removed from the list, Chairman
Lungren has asked that we submit for the record a complete
list, so I will do so at a future date.
Ms. Jackson-Lee. All right.
Mr. Madar. With regard to whether there are enough drivers,
are you asking specifically whether there are enough drivers on
the road now?
Ms. Jackson-Lee. If we were to fix the problems that you
see, will we have enough truckers now? And you want to comment
on the issue dealing with the fingerprinting and the ALJ. So if
we were able to fix what you are concerned about, would we have
enough truckers to be able to assist in this really extensive
effort of carrying hazardous materials?
Mr. Madar. Well, currently there is some discussion in the
transportation sector that there is a shortage of drivers to
begin with. So this HAZMAT background check process, with the
predicted elimination of a certain percentage of those drivers
who are currently in the pool, would most likely have a
negative impact on the availability of HAZMAT-endorsed drivers.
And I am not sure if eliminating or fixing all of these
problems will be possible, but it will certainly go a long way
towards alleviating that concern.
With regard to the administrative law judge, the Teamsters
have the opinion or are of the opinion that the administrative
law judge would serve as an impartial person or entity that
drivers could petition and appeal to.
Currently, if TSA denies your security--or indicates that
you are a security threat, you are required, if you choose to,
to appeal to TSA. So you are appealing to the entity that has
already indicated that you are a security threat. And the same
goes for the request for a waiver. So it is our opinion that
you need an impartial third party to review those.
And with regard to the fingerprint locations, we have
received a number of complaints from our drivers that the TSA
locations, there are not enough of them, they are too spread
out throughout the states. Very often, as Mr. Russell and
others on the panel have indicated, the drivers would need to
take at least a day off to drive to that location, provide
their fingerprints, do their background check, and then drive
home.
And that involves not only paying the fee for the
background check, but also the loss of work. So we have
suggested that the locations be expanded.
The other problem that we have also seen is that TSA has
not adequately advertised the fact that drivers are entitled--
drivers who reside in a TSA agent state are entitled to use any
TSA agent collection location. Most drivers do not understand
that. They believe that they have to go to the locations that
are listed in their state only.
Mr. Lungren. The gentlelady's time is expired.
Ms. Jackson-Lee. Thank you. I thank you.
Mr. Lungren. We are going to do a second round and then go
to our second panel.
Mr. Brown, you indicated that we ought to use the U.N. list
of high-consequence dangerous goods rather than the more
limited list proposed by others. Do you have any idea what
percentage of hazardous materials that are hauled today would
be considered high-consequence dangerous goods under the U.N.
list?
Mr. Brown. I am sorry, Mr. Chairman, I would not--I do not
think that I could address that answer. We would be happy to
look into that, present that to the committee. It is available.
Mr. Lungren. Thank you. Would you do that in writing?
Advocates of keeping a security-sensitive list short--Mr.
Russell has indicated that there is specialized carriers for
those security-sensitive loads and that those folks have made a
conscious decision to get into that market and deal with the
potential increased liability.
Mr. Brown, is that the case in your industry, in the
industries you represent?
Mr. Brown. Mr. Chairman, our industry transports materials
on a very, very broad scope. There certainly are those
specialized carriers that deal in specialized commodities.
But our list is a much broader one and addresses not only
those specialized carriers but also more usual--
Mr. Lungren. Okay, well, let me ask the question this way.
If, in fact, we were to maintain here in the Congress and the
executive branch that we ought to have background checks,
whether with or without fingerprints, for the most sensitive
types of cargo, is it your estimate that that would make more
people go to specialized carriers? And would that be a good or
bad thing, I mean?
Mr. Brown. Our concern with a very narrow list of materials
is--I suppose it is exemplified by what happened in 2003, when
the Bureau of Alcohol, Tobacco and Firearms tried to regulate
the transportation of explosives. And in that process, the
railroads, for example, decided that they would not be able to
immediately respond to the ATF needs and obtain security or
background check on all of their personnel.
The result of that was essentially an embargo of
explosives, including fireworks. Our concern is that, with too
narrow a selection of materials, we will find carriers simply
opting out of the transportation of these materials.
And we will be pushing into other areas where the safety
actually becomes a very great concern. Because now, if we are
unable to ship small quantities of materials via common
carrier, you will see a tendency to use larger shipments of
materials all at one time. This creates both a greater security
and greater safety concern.
I think there was testimony within the last couple of weeks
from Mr. Hamberger from the railroad association, the American
Railroad Association, testifying that hazardous materials
represented some 90 percent or greater of the risks presented
to his industry and yet represented only a very miniscule part
of the revenue.
It was his view. And we are concerned that it may be shared
by others in the transportation industry that it would be
better for them to simply opt out of transporting those goods
at all. And with what happened in 2003 in the ATF issue, we are
concerned that that could happen again, if that list is too
narrow, Mr. Chairman.
Mr. Lungren. Thank you.
Mr. Russell, you stated in your written testimony that
HAZMAT represents only 1.5 to 2 percent of total freight and
that, until recently, you required all your drivers to have
HAZMAT endorsements.
You go on later in your prepared testimony to propose that
only those who handle security-sensitive HAZMAT be required to
undergo the security threat assessment. You state that
nationwide this is only four-tenths of a percent of the average
daily HAZMAT shipments. By my rough calculation, that means
3,200 out of 5.2 million daily shipments.
If this was to occur, would you still ship these security-
sensitive hazardous materials?
Mr. Russell. I believe that companies like our company
would probably not ship those materials--
Mr. Lungren. So you would leave those to specialists?
Mr. Russell. Right. And there would be specialized carriers
to move it. And the laws of capitalism will work. And if you
need more specialized carriers, they would form and be able to
handle it.
Mr. Lungren. Okay.
And my last question, Ms. Lewis-Pickett, are the only
concerns your organization has with the two-tiered system the
actual implementation of it, with regard to the states? And my
question is this: Isn't is possible that a two-tiered system
would be less work for the states, since there would not be the
need to collect as many fingerprints and review everybody to
the same extent?
Ms. Lewis-Pickett. The concern, I believe, is timing. It is
the burden of cost, administrative resources. But it is also
timing.
And the recommendation to integrate it into these CDLIS
modernization process I think allows time to think through what
the changes will be. I think the fear is to too quickly make
changes that then continues to burden the process, trying to
not only train people on what the new processes are, a whole
new application processes.
I just think it needs to be thought through. The DMVs are
not against something like this but do not want to see it
happen in a haphazard format.
Mr. Lungren. Thank you.
Ms. Sanchez?
Ms. Sanchez. Thank you, Mr. Chairman.
I understand that the TSA has developed a HAZMAT truck
security pilot program which is intended to provide information
about the specific location of hazardous materials during
transport and to provide coordinated support and response to
terrorist threats.
Do any of the witnesses know why this program has taken
such a long time to be developed by TSA and to implement it?
Does the HAZMAT truck security pilot program present problems
for truckers and trucking associations?
Yes?
Mr. Russell. I believe I understand it. And I believe what
it does is it makes an effort to try to communicate ahead with
communities when sensitive material is coming through.
Ms. Sanchez. Right.
Mr. Russell. I think, if that is what it is, if that
interpretation is right, I think it will create a lot of
information, which would probably be so much that local
communities could not cope with it.
As it is right now, weaponable material movers require
specific authorizations from states, in terms of going through
those states. And I think that is probably sufficient.
I mean, there is a lot of technological developments in
this entire area, which, you know, down the road may be
opportunities that could be used but at this point there is
nothing that really jumps out that would provide that.
Ms. Sanchez. Thank you.
Anybody else on that?
Mr. Brown. If I may--
Ms. Sanchez. Yes?
Mr. Brown. Again, I have to presume that we are talking
about the law which may, in fact, require tracking of
vehicles--
Ms. Sanchez. Right, as they go through certain areas.
Mr. Brown. --during the movement. And the issue presented
for our industry is that we frequently use rental vehicles that
are not so equipped. To take a very minute example, I suppose,
is the Fourth of July, in most of the states, would be over
under this law, because rental vehicles are absolutely
essential to that effort and they are not properly equipped to
meet that requirement.
And so, while it may be a small issue, I think the citizens
would like their Fourth of July shows to continue. It is a
small--I guess what it is, is it reflects that we have a number
of very small problems here that are generated by these things
that are very difficult for us to manage because of the diverse
number of laws that now apply to it, with ATF, DOT, TSA, DMV,
the acronyms go on and on.
And so, to the extent that we can harmonize any of those
things, whether it is the U.N. list being in harmony with the
rest of the world, DMV being in harmony with TSA, and DOT, and
ATF, we would greatly appreciate your leadership in that
avenue.
Ms. Sanchez. So, you know, the root of the question, I
think, is, are we putting forward solutions that may be
searching out a problem? I mean, do we have to notify all
communities as things move through? What does that do to your
truckers, as far as their paperwork and their ability to
communicate this, time frames, lines? Timing is so important in
trucking.
Mr. Russell. The issues are, of the 3.5 million tractors on
the road today, about 400,000 have satellite tracking. Most of
the larger companies have satellite tracking.
But the satellite tracking pings every 15 minutes or every
half hour. It is not a continuous ping that would be
prohibitively costly.
So that any effort to literally prevent a tractor from
going Point A to Point B and then diverting to Point C, the
technology does not exist where you could actually make that
happen. Where, if somebody jumped into Mr. Laizure's cab and
ran that truck and trailer into a big city, it would be
impossible to track it under the current system.
And very few trucks to begin with, only, you know, roughly
12 percent, have satellite tracking to begin with.
Ms. Sanchez. Thank you.
Thank you, Mr. Chairman.
Mr. Lungren. I suspect it would be difficult to get into
Mr. Laizure's cab, though.
[Laughter.]
I suspect he would not make it easy for him.
Mr. Russell. And he looks like the strongest guy at this
panel, too.
[Laughter.]
Mr. Lungren. And he has been checked out 18 times to Sunday
and six sets of fingerprints. So he is either a repeat felon or
he is just one clean guy.
Ms. Jackson-Lee is recognized for 5 minutes.
Ms. Jackson-Lee. Thank you very much. If any of you want to
comment on that, Chairman, you owe me some additional time.
[Laughter.]
This looks to me as if--Chairman, to the ranking member--
that we need some kind of fix in order to be adequately
addressing the question of hazardous materials, which we owe a
responsibility to the American people. And then, of course, to
have the personnel, trained, experienced personnel, that we
will be able to utilize and also to not have government being
overbearing and ineffective.
I just came back from my hometown, but we spent some time
with members of Homeland Security on emergency preparedness,
still dealing with Hurricane Katrina and Rita. And one of the
key issues was bureaucracy and effective bureaucracy. And I
know the second panel will help us try to solve that.
But let me raise these questions with you, Ms. Lewis-
Pickett. Thank you for being here. Could you give us some
additional information about the impact of this program on the
states? You represent the motor vehicle association.
And it is my understanding that the infrastructure may not
currently exist for the states to successfully implement this
program. That is a key concern for us. And you might want to
suggest how we can be more effective, government and states
working together.
I am also concerned about it being an unfunded mandate, but
you might share your thoughts on that.
And then, what is the relationship between the Commercial
Drivers License Information System and the TSA program? Again,
are we linked up?
And would you yield for a moment? And I am going to give a
broad question. I hope others will jump in on this last
question. How do believe the HAZMAT endorsement program should
relate, if at all, to the broader Transportation Worker
Identification Card, which has not yet moved into your arena,
but it is working with a number of other workers, longshoremen
and others?
Is the program that TSA is now developing--I mean, what
impact will that broader TWIC program have on what we are
trying to do here?
Ms. Lewis-Pickett?
Ms. Lewis-Pickett. Yes, again, several questions. I hope I
can keep up.
Ms. Jackson-Lee. Only two for me.
Ms. Lewis-Pickett. Only two for me.
[Laughter.]
As far as the burden, what we are hearing from the
membership is the manual process that in place right now is
definitely burdensome to them. The DMVs are really, really
spread thin right now. And when we look at the federal-state
partnership, I think the DMVs have stepped up in a number of
areas to try to put programs in place, to administer programs
that are mandated by Congress.
This is one where the federal agencies really decided not
to use what was the best mechanism at the state level, and that
is the network that manages the commercial drivers license
program at the state level. And that is CDLIS, the Commercial
Driver License Information System.
The problem now is that we have almost lost that window of
opportunity and that we need to probably continue this manual
process until such time that we begin to make modernization
aspects of this program, which is going to begin in the year
2006.
CDLIS modernization takes time. And what that is, it is the
coding of the codes that we use state to state to transfer
driver information. Our members reminded us of the extreme
burden on adding just an S to school bus drivers.
It is not as simple as it seems, when we talk about
changing the credentialing process. All of our systems have to
change so that we are able to communicate on driver records
from state to state to state.
So our proposal is that you take time and to really think
through what needs to happen, to provide the HAZMAT
credentialing, and then make a concerted effort to work with
the states, work with all of the stakeholders that are
represented here at the table, so that we do not have a
hodgepodge system and that it is something that the states can
easily handle.
Ms. Jackson-Lee. The other question was, what is the
relationship between the Commercial Drivers License Information
System and the TSA program, in your view?
Ms. Lewis-Pickett. There is not one.
Ms. Jackson-Lee. No relationship?
Ms. Lewis-Pickett. No. They are certainly considering using
CDLIS in the future, but it is not being used today.
Ms. Jackson-Lee. And does this pose a financial burden that
the states are willing to accept?
Ms. Lewis-Pickett. Whether they like it or not, it does
create a financial burden, and they have accepted it in order
to make the program work today.
Ms. Jackson-Lee. The question about the TWIC, anybody want
this?
Mr. Russell?
Mr. Russell. TWIC, we believe, is a year or a year-and-a-
half away from now. We actually had meetings in Boston with the
TSA 10 days ago.
Trucks are the only thing that truly touch the ports,
therefore containers coming off ships from wherever they may be
coming from, airports, rail yards, cities. Trucks touch it all.
TWIC, as long as TWIC is risk-based, makes sense. And that
basically we support TWIC, provided it is risk-based and does
not create another entire level of duplication. But I think
that certainly a HAZMAT certification as part of TWIC would be
a logical approach.
Ms. Jackson-Lee. Another else?
Ms. Lewis-Pickett. We certainly would have concerns of, how
do you link the driver history information with the TWIC card?
TWIC is more so that the risks--the identity risk area, as far
as the HAZMAT, that is really tied to the driver and that
driver's driving history. So I think there is two different
focuses there.
Ms. Jackson-Lee. That is what it would be linked to, the
driver's history?
Mr. Madar. I also have to echo the comments of Mr. Russell.
The Teamsters, I think, right now are only on the fringe of the
TWIC card. But if or when the TWIC card actually comes to pass,
our main concern is that there is not a duplication of effort,
that the drivers who are required to have the TWIC card, that
they do not have to go through the HAZMAT endorsement process
as well as the TWIC card.
It would just be another level of cost and bureaucracy,
which these drivers do not need to go through.
Ms. Jackson-Lee. Mr. Chairman, I just want to--if you yield
me 30 seconds to make this statement on the record.
I think that we all have a responsibility to secure the
homeland. What I do not think I heard completely anyone raise
is the fact that the background of some of these individuals
may suggest that there has been some failing in their
background or that it is a criminal issue that they have served
their time, they are gainfully employed, they are supporting
family members.
And I am not sure if the TWIC card is going to now weed out
large numbers of individuals who have, you know, served their
time to society and now are trying to contribute to society,
who work in these different areas.
And I hope our committee would be concerned about people
who rehabilitate their lives, and that would come up on their
record, and whether or not that would eliminate them in this
broader sense from doing the job that they have been doing.
And I thank the chairman.
Mr. Lungren. I thank you for your comments.
And I thank the panel for their statements. As was
suggested, there may be some other written questions submitted
to you. We would ask that you try and respond to those in a
timely fashion. And several of you have indicated you will
respond in written form to some of the questions that I
proposed.
Thank you very much for appearing before us. You have been
very helpful.
It is now my pleasure to call for the second panel,
representing the Department of Homeland Security and the
Department of Transportation.
The chair calls the second panel and would recognize Mr.
Justin Oberman, the assistant director for transportation
threat assessment and credentialing at the Transportation
Security Administration, to testify.
And I think we have mentioned that your prepared remarks
will be made part of the record and ask you to try and limit
your comments to 5 minutes. And then we will go into questions
after we have heard from both members of the panel.
Thank you, Mr. Oberman.
STATEMENT OF JUSTIN OBERMAN
Mr. Oberman. It is good to be with you again. Ranking
Member Sanchez, Congresswoman Jackson-Lee, it is a pleasure to
be here.
And we are pleased to testify today about our HAZMAT
credentialing program, about which we are very proud, and try
to put it in the context of all of our efforts under way to
secure the transportation system, including the surface modes
of transportation, as well as hazardous materials in general.
And I think that the HAZMAT program actually provides an
excellent example of how we are using risk-based decision
making, which is a priority for the Secretary, as well as for
the TSA administrator, how we are using that approach in this
program.
And I think there are a few examples of that. First, one of
our main principles at TSA is to make investment decisions
based on where the risk lies, as well as, of course, what our
statutory requirements are from the Congress.
And as you know, the statutory requirements to conduct this
program actually precedes the creation of TSA. It was in the
USA Patriot Act from October of 2001. And so, of course, most
of the requirements that we have set forth are based directly
on the statute.
Second, we obviously are concerned about terrorists'
ability to use hazardous materials for purposes completely
different than what they are intended, namely to perpetuate
terrorist attacks. And so we have made an investment in the
program for that reason.
Third, you know, one of our key principles is to try to use
our intelligence to focus on the terrorists themselves, as well
as their means of conveyance of dangerous goods in this case,
and so forth.
And so that is why, in this program, regardless of what
state you are in, what kind of company you work for, or what
materials you ship, as long as they are considered to be
hazardous, that we are screening people very, very thoroughly,
trying to identify people who present no suspected terrorist
threats or have otherwise engaged in behavior that might
indicate a propensity for them to be involved in some kind of
terrorist, even unwittingly. And so that is a very important
point.
I think it is also important to point out that we have
worked very, very closely with the Department of
Transportation, the Department of Justice, the trucking
industry, the states, the labor unions and others in developing
and standing up this program.
And while we are very concerned about the points that were
raised earlier today, they are all points about which we are
familiar. And we are working to address each of them in turn.
So I want to remind the committee of that and also thank
the stakeholders for their very critical involvement in what we
are doing.
In terms of making improvements and changes to the program
over time, I think I would say a few things. First, Ranking
Member Sanchez, to address the concerns you mentioned in your
opening statement about the reports that are owed under the
highway bill, those reports are in departmental coordination at
the moment.
I think I can address most of our key conclusions reached
today, but we will have those to your shortly. And one of the
things that we do address in those reports is the issue of
comparability. That was a concern expressed here today
regarding the requirements of other government agencies, vis-a-
vis TSA's requirements. I think we can discuss those to your
satisfaction.
The other two points I would like to make before closing
are as follows. Number one, our intention, as we stand up
screening and credentialing programs across TSA to include
HAZMAT credentialing, as well as the TWIC program and others,
is to make these programs interoperable and not to reinvent the
wheel every time we roll out a new program.
For example, when developing our regulations for HAZMAT
truck drivers, we used to a great extent the statutory guidance
that is in the Maritime Transportation Security Act, which is
going to govern the TWIC card. And we did that because there is
more detail there than there was in the Patriot Act, for
example.
That is going to enable us, when we promulgate our
regulation to the TWIC program, to not have a different list of
crimes with different standards, so that truck drivers today
that are authorized to carry HAZMAT to a gas station, for
example, or to a seaport will continue to be able to take that
material to a seaport using a TWIC card and not have to be re-
vetted, and pay another fee, and be subject to different
standards.
The final thing I would say is that we are looking forward
to an ongoing relationship with the Department of
Transportation to include reviewing all of the industry
proposals that were articulated today, as well as in other
forums, to try to make the program even more risk-based and
focused on the most dangerous terrorist threats.
I look forward to any questions you might have and to an
ongoing working relationship in this area. Thank you.
[The statement of Mr. Oberman follows:]
Prepared Statement of Justin Oberman
Good afternoon, Mr. Chairman, Congresswoman Sanchez, and Members of
the Subcommittee. I am pleased to have this opportunity to testify on
the subject of securing hazardous materials transported by commercial
motor vehicles.
Even before passage of the Aviation and Transportation Security
Act, P.L. 107-71, which created the Transportation Security
Administration (TSA), Congress recognized the need to bolster the
security of hazardous materials (hazmat) transportation. The Uniting
and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act, P.L. 107-56, which
became law on October 26, 2001, required a background records check for
all U.S. drivers who transport hazardous materials in commerce.
Today, I would like to give you an overview of the Hazardous
Materials (Hazmat) Threat Assessment Program, developed to implement
Section 1012 of the USA PATRIOT Act.\1\ I will also discuss how we are
refocusing TSA's priorities to reflect our understanding of the nature
of potential threats to the transportation system, and how that effort
will inform our future actions as we continue to protect the security
of transportation on our Nation's highways.
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\1\ The statute provides that a ``State may not issue to any
individual a license to operate a motor vehicle transporting in
commerce a hazardous material unless the Secretary has first
determined. . . that the individual does not pose a security risk
warranting denial of the license.'' See 49 U.S.C. Sec. 5103a.
Adapting to a Changing Threat Environment
As TSA has recently testified before this Subcommittee, our
fundamental challenge is to protect passengers, freight, and our
transportation network in a constantly changing threat environment. We
know that terrorists will not only look for weaknesses in our
transportation system and its security measures, but they will also
adapt to perceived security measures. Therefore, in all of its
endeavors TSA is pursuing a strategy based on the following four
operating principles:
First, we will use risk and value analysis to make investment and
operational decisions. That means that we will assess risks based not
only on threat and vulnerability, but on the potential consequences of
a particular threat to people, transportation assets, and the economy.
Further, we will assess and undertake risk management and risk
mitigation measures based on their effect on total transportation
network risk.
Second, we will avoid giving terrorists or potential terrorists an
advantage based on our predictability. TSA will deploy resources and
establish protocols flexibly based on risk, so that terrorists cannot
use the predictability of security measures to their advantage in
planning or carrying out a threat.
Third, we will continue to intervene early based on intelligence,
and focus our security measures on the terrorist, as well as the means
for carrying out the threat. We recognize that enhancing and expanding
techniques to identify suspicious persons at the transit, train, or bus
station, in the airport, or on our highways is necessary. However, the
strongest defense posture is to detect a terrorist well before an
attempt to launch an attack has begun. A coordinated interagency
intelligence collection and analysis effort must be our first line of
defense. Our hazmat driver screening program is an important example of
this approach.
And, finally, we will build and take advantage of security
networks. As you may know, we are placing a renewed emphasis on
building information sharing networks in every transportation sector-
rail, transit, maritime, and trucking, as well as aviation. Not only
will we work more closely with stakeholders in these industries, we
will put a renewed emphasis on sharing intelligence, capacity and
technology with other law enforcement, intelligence gathering and
security agencies at every level of government. We will build a more
robust, distributed network of security systems to protect America.
As we apply these operational principles, TSA remains dedicated to
important customer service principles, as well. As we move forward,
TSA will identify opportunities and engage the private
sector in its work to develop and implement security systems
and products.
We will protect the privacy of Americans by minimizing
the amount of personal data we acquire, store and share, and we
will vigorously protect any data that is collected, stored or
transmitted.
And we will remember, in all that we do, that our goal
in stopping terrorism is to protect the freedoms of the
American people. Therefore, we will work to make travel easier
for the law-abiding public, while protecting the security of
the transportation network and the people who depend upon it.
The Hazardous Materials (Hazmat) Threat Assessment Program
In May 2003, TSA, the Federal Motor Carrier Safety Administration
(FMCSA) and the Pipeline and Hazardous Materials Safety Administration
(PHMSA) \2\ published an interim final rule implementing the hazmat
driver threat assessment program.\3\ The rule complements existing
Department of Transportation (DOT) regulations that define the
hazardous materials for which a hazardous materials endorsement (HME)
is required to be issued by individual States or Territories. Under the
threat assessment rule, any person who is required by the DOT rule to
possess an HME as a condition of transporting hazardous materials must
first undergo a threat assessment.
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\2\ PHMSA was formerly part of the Research and Special Prorams
Administration (RSPA).
\3\ 68 FR 23852 (May 5, 2003).
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As a first step toward meeting this requirement, TSA conducted a
terrorist-focused name check on approximately 2.7 million drivers then
holding HMEs for their commercial drivers licenses (CDL). This name-
based check resulted in the referral of 74 individuals to law
enforcement agencies, some as a result of links to on-going Federal
Bureau of Investigation (FBI) cases and some to terrorism. In January
2005, TSA began conducting a fingerprint-based FBI criminal history
records check, an intelligence-related check, and verification of
immigration status for applicants seeking to obtain a new HME on their
State-issued commercial drivers license. Finally, in May 2005, TSA
extended these checks to all hazmat drivers, including those seeking to
renew or transfer an HME.
Program Basics
TSA conducts a threat assessment to determine whether an individual
may be issued an HME under the statute and implementing regulations.
Regulations prohibit issuance of HMEs to individuals who: have been
convicted of certain felonies, under particular circumstances; are
fugitives; are not U.S. citizens, lawful permanent residents, or lawful
non-immigrants, refugees, or asylees with valid evidence of
unrestricted employment authorization; have been adjudicated as
mentally incompetent or involuntarily committed to a mental
institution; or who are determined to pose a threat of terrorism or a
threat to national transportation security.
Commercial drivers seeking a new HME, or renewing or transferring
an existing HME, must submit biographical and biometric (fingerprint)
information to TSA for the purpose of conducting a threat assessment.
This information is processed by a TSA contractor in Agent States or,
in Non-Agent States, through the State department of motor vehicles
(DMV) or its contractors.\4\
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\4\ TSA studied several options for the fingerprint and application
collection process, including a TSA-managed program, a program
conducted by the States, a hybrid in which the States could opt into
certain portions of the process and opt out of others, and the process
we ultimately selected, in which the States may choose to conduct the
fingerprint and information collection process or use TSA's agent for
that purpose.
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In order to effectively process a large volume of threat
assessments in a timely manner and ensure that applicants who are
initially denied an HME have recourse, TSA has devised a process that
provides for both appeals and waivers. These cases are managed by an
Appeals and Waivers Manager.
The initial adjudication process includes an assessment of each HME
applicant's criminal history, citizenship status, and mental health
history; each applicant is also vetted against relevant terrorism
databases. Applicants with potential disqualifying issues are assessed
by multiple trained adjudicators. Legal assistance is available to the
adjudicators to ensure that the decisions comport with statutory and
regulatory requirements. The process is designed to reduce the risk of
error of improperly adjudicating applicants, while minimizing the
adjudication time. The initial adjudication concludes with either: a
Final Determination of No Security Threat, if the applicant is found
eligible to hold the HME; or an Initial Determination of Threat
Assessment, if the information indicates that the applicant has a
potentially disqualifying issue. A Final Determination of No Security
Threat constitutes a Federal determination that an applicant may be
issued an HME by the State, although some States may conduct additional
checks under their own laws.
TSA established a goal of completing the adjudication process
within an average of 30 days of receiving an application, and has
successfully met this goal. Since the beginning of the program, TSA
processed cases, on average, within 13 days; in the most recent month
for which data is available, TSA has taken an average of only 9 days to
process a case.\5\ To ensure that drivers with existing HMEs can
continue to work during the adjudication process, the regulation
requires States to notify drivers of the threat assessment requirement
at least 60 days in advance of the expiration of their HME. When
necessary, States may extend the expiration date of an existing HME for
up to 90 days.
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\5\ Since January 31, 2005, there have been over 136,000
applications (supported by fees and fingerprints, and thus ripe for
adjudication) of which more than 124,000 have been cleared to hold an
HME; approximately 11,000 are in the initial adjudication process; and
approximately 800 in the post-adjudication process. Approximately 700
applicants have been deemed disqualified to hold an HME.
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Appeals. An applicant who receives an Initial Determination of
Threat Assessment may appeal that determination within 30 days of
receipt. If no appeal is initiated within 30 days, TSA issues a Final
Determination of Threat Assessment to the applicant and the State
licensing agency, and the State may not issue or renew the HME.
An applicant who appeals his Initial Determination of Threat
Assessment may review any unclassified records on which the initial
determination was based, and may provide further information regarding
the condition that resulted in the initial determination. This may
include, for example, corrected or additional information on his or her
criminal history or citizenship status. TSA notifies the applicant and
the State of its determination. If the appeal is successful, the
applicant will receive a Determination of No Security Threat, and may
be issued an HME. If the appeal is not successful, a Final
Determination of Threat Assessment is made, and the State may not issue
an HME to that applicant.
Waivers. An applicant may request a waiver if a disqualifying
factor is undisputed, but that factor has been mitigated in some
respect (i.e., by rehabilitation after conviction of a disqualifying
criminal offense). The Appeals and Waivers Manager creates a summary of
the case, including information provided by the applicant, addressing
the severity of the offense, recidivism, and rehabilitation. The case
is then vetted by a TSA waiver committee comprised, at a minimum, of
the Appeals and Waivers Manager, counsel, and representatives of the
hazmat program office. The waiver committee makes a recommendation to
the Assistant Secretary's designee, who renders the final decision. TSA
does not grant waivers for individuals who have been convicted of
treason, sedition, espionage, or crimes of terrorism. Since
implementation, TSA has received over 100 waiver requests. Of the 40
waiver requests that have been completed, 19 were granted and 21 were
denied.
Current Program Status
TSA is proud of the progress we have made in implementing the
hazmat threat assessment program. In the nine months since the
Department began fingerprint-based checks, we have processed over
120,000 applications. Today, 33 States and the District of Columbia
participate as Agent States through which TSA collects and transmits
fingerprint and driver application information. There are 156
enrollment sites in these jurisdictions. In addition, there are 864
enrollment sites in 17 Non-TSA Agent States.
TSA has established a comprehensive program, but we continually
seek opportunities for improvement. For example, to improve customer
service, TSA engages daily with State DMVs, industry associations, and
other stakeholders to expand the number of sites that collect
fingerprint and commercial driver information. Within the next month,
TSA plans to roll out a secure web portal for use by all States that
provides electronic notification of threat assessment results and
driver processing status. This will improve customer service at the
State licensing level, as well as provide even more timely access to
TSA communications.
In order to address concerns about differences among State
processes and reduce opportunities for error and delay, TSA has
automated the submission of biographical information to TSA from the 17
Non-Agent States. Originally, TSA anticipated that it would utilize the
Commercial Drivers License Information System (CDLIS) managed by the
States and the American Association of Motor Vehicle Administrators
(AAMVA) to collect and electronically submit applications from the Non-
Agent States. Because the AAMVA system will not be able to accommodate
us in the near future, TSA has implemented two alternatives that make
the process more efficient for applicants in Non-Agent States. First,
we created a secure web-based application intake portal that enables
States and their drivers (if the State so allows) to submit
biographical information directly to TSA. Second, we enabled the
electronic submission of biographical information directly from the
State driver licensing systems, leveraging the prior work done with
AAMVA and the States.
Like you, we have heard concerns about higher processing fees being
charged in some States that are not served by TSA agents than in those
served by TSA agents.\6\ As you know, TSA has statutory authority to
recover infrastructure and other start-up costs necessary to perform
background checks and provide credentialing-related services through
fees that are reasonably related to the costs of providing those
services. Where fees are collected through Agent States, the entire
amount of the fee, which covers FBI records checks ($22), fingerprint
and application collection ($38), and program office and adjudication
processing costs ($34), is fixed by TSA at $94.\7\ This cost is
comparable to the $97 charged for processing a first-time passport
application. In both TSA-Agent and Non-Agent States, the portion of the
fee for the FBI records check and the adjudication processing is set by
TSA. However, in Non-Agent States, the fingerprint and information
collection fee is set by the individual State. Although the resulting
fees differ somewhat, the average fee in Non-Agent states is
approximately $91.
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\6\ Typically, States require an HME to be renewed once every four
or five years; accordingly the fee is only charged once for that
period.
\7\ As dictated by statute and OMB guidance, the agency's fee
levels are based solely on the agency's costs of performing the
security services required by the hazmat driver threat assessment rule.
In order to comply with the Chief Financial Officers Act of 1990, 31
U.S.C. 3512, TSA and DHS will review all program costs no less than
every two years to ensure that actual program costs are in line with
fees charged. If, based on the actual cost history of the program, the
fees charged are either too high or too low, the fee levels will be
adjusted accordingly through rulemaking. At present, TSA's hazmat fees
do not exceed agency costs.
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Further Program Improvements
Reducing Redundancy
As we pursue improvements in the hazmat threat assessment program,
we are looking at ways to leverage data collection innovations that
will reduce duplication of effort among this program and other DHS
vetting and credentialing programs. The Department is carefully
assessing the interoperability of a variety of programs to ensure that
they are complementary, while working toward the ultimate convergence
of our credentialing programs.
Similarly, we are evaluating standards for comparability with other
Federal agencies, such as the National Nuclear Security Administration,
a component of the Department of Energy, and agencies within the
Department of Defense (DoD). Our goal is to develop a protocol that
permits drivers who have security clearances based on comparable
disqualifying and vetting criteria to forego an additional TSA security
threat assessment for an HME. TSA has convened a Comparability Work
Group to assess background check requirements, with the intent of
establishing a baseline ``standard'' for determining comparability.
Among other pertinent factors that will be considered when determining
comparability are any disqualifying factors which originate in
legislation.
TSA also recognizes that broader efforts are underway to develop
standardized screening for programs across the Federal government and
the private sector. As these procedures are developed and implemented
government-wide, TSA will consult with other Federal agencies to ensure
compatibility with respect to other security screening programs
whenever possible.
Vetting Canadian and Mexican Hazmat Drivers
The Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU) requires that Canadian and Mexican
drivers who seek to transport hazardous materials in the United States
be subjected to a background check similar to that required for U.S.
drivers.\8\ TSA has met with Canadian and Mexican officials to discuss
options for developing and implementing a comparable vetting platform
to ensure their hazmat drivers undergo security threat assessments.
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\8\ Even before enactment of this requirement, TSA promulgated
regulations, 49 CFR 1572.201, prohibiting Canadian drivers from
transporting explosives into the U.S. unless they have submitted to a
background check by Transport Canada. In addition, TSA checks these
drivers' names against watch lists to determine whether they may pose a
threat to transportation security, and U.S. Customs and Border
Protection (CBP) checks those names at the border to determine whether
a driver transporting explosives at the border is cleared to enter the
United States or should be denied entry. TSA also has engaged with
Canadian officials concerning the broader population that transports
all placarded hazardous materials into the U.S. and continues to work
toward a background check program that will enhance bilateral security
while minimizing disruption to cross-border trade.
---------------------------------------------------------------------------
Among the options we are considering is U.S. recognition of the
hazmat endorsements of drivers enrolled in the U.S. Customs and Border
Protection's (CBP) Free and Secure Trade (FAST) program. FAST is a
cooperative effort between CBP and Canada and Mexico, an integral part
of which is a fingerprint and name-based background check of
participating commercial drivers. CBP conducts both criminal history
record checks and intelligence vetting against relevant terrorist watch
lists on all applicants, an interview, and periodic re-vetting of the
FAST applicants against relevant intelligence databases. While
participation in the FAST commercial driver program is currently
voluntary, we have determined that the vetting process used in the
program is similar to the Hazardous Material Threat Assessment Program.
Employer Notification of HME Denials
We are also working toward fulfilling the requirement of SAFETEA-LU
that we seek comment from the industry and develop a process for
notifying employers of HME applicants of the results of the threat
assessment in an appropriate manner when the applicant is disqualified.
We have a notification process in place, and sought input from the
industry on improving methods for notification in November 2004. We are
in the process of seeking comment again to finalize a notification
process that gets employers the information they need and at the same
time protects the privacy rights of applicant employees.
Proposals for Graduated Hazmat Endorsements
Due to concerns about the potential or perceived impact of current
background check requirements and fees on the number of drivers
applying for hazmat endorsements, we understand that proposals have
been made to create a graduated system of hazmat endorsements. As we
understand the proposal, a statutory change may be sought to require
that only drivers seeking a hazmat endorsement for a smaller category
of ``security sensitive'' hazardous materials be subject to the full
complement of security, criminal fingerprint, and immigration status
checks.
As noted earlier in this statement, we support a risk-based
approach to hazardous materials security and agree that security
regulations should be appropriately tailored to address transportation
security risks. When promulgating the hazmat rule under the USA PATRIOT
Act, TSA and DOT determined that all placarded materials warrant a
security threat assessment of those seeking authorization to transport.
A person who is given an HME today is authorized to carry the full
range of hazardous materials that require a placard. These include
toxic chemicals, and radioactive or poisonous commodities, as well as
materials that may be perceived as relatively benign, such as nail
polish, paint, and soft drink concentrate. However, in large
quantities, even these ``benign'' commodities could be used to cause
significant harm. Therefore, under both DOT and DHS rules, trucks
carrying large quantities in bulk packages of these so-called
``benign'' commodities require placarding and a driver who has
undergone a security threat assessment.
Nevertheless, we are amenable to undertaking a risk-based analysis
to determine whether the existing requirements of the USA PATRIOT Act
are overbroad. Any modifications to the list should be developed
through the collective efforts of all stakeholders, including the
Department of Homeland Security, the Department of Transportation,
other interested Federal agencies, States, and industry. The analysis
should also consider operational and enforcement implications of any
potential changes.
Other Highway/Hazmat Security Initiatives
Hazmat Truck Security Pilot Program
TSA does not intend to rely solely on the hazmat security threat
assessment program to protect the Nation from hazmat-related security
threats. The Hazmat Truck Security Pilot Program is intended to provide
information about the specific location of hazardous materials during
transport, to support coordinated, agile responses to terrorist
threats. In the first phase of the pilot, TSA will evaluate a minimum
of three technically different, commercially available tracking
solutions. Later phases of the pilot program will involve creating and
demonstrating a prototype centralized truck tracking center to provide
a single point of contact for analyzing alerts or incidents and
coordinating responses to potential threats.
Highway Watch
The American Trucking Associations' (ATA) Highway Watch program
provides yet another layer of security for our Nation's highway
transportation system. The program, implemented through a cooperative
agreement between ATA and DHS through the Office of Domestic
Preparedness (ODP), supports a platform for reporting safety and
security threats on highways and provides anti-terrorism and safety
instruction to America's highway transportation professionals. This
group includes commercial truck and bus drivers, school bus drivers,
first responders, public transportation professionals and others. To
date more than 172,000 transportation professionals nationwide have
received Highway Watch.
A key component of the program is reporting by drivers of real or
potential safety or security concerns to a national call center
hotline. Safety reports are forwarded to local first responders who
determine the appropriate next step. When a security call is received,
a report of the incident is forwarded to the Highway Information
Sharing and Analysis Center (ISAC) for assessment and analysis by a
team of transportation security professionals. Incidents that may pose
a threat to national security are then shared with Federal and State
government intelligence officials and other law enforcement agencies.
We note that with the enactment of Section 541 of the Department of
Homeland Security Appropriations Act, 2006, P.L. 109-90, liability
protection is now afforded to participants of Highway Watch who report
a potential incident to the appropriate authorities.
Working with Industry to Improve Hazmat Security
TSA's Corporate Security Review (CSR) program has identified hazmat
carriers as the first and most important sector to be visited for
review within the community of some 1.2 million inter--and intrastate
trucking companies. TSA is ambitiously moving ahead to conduct personal
visits with the largest of these hazmat carriers to validate and
improve corporate security programs and to better understand how TSA
can assist in that process.
TSA is also teaming with State, local and municipal law enforcement
agencies that conduct roadside inspections and safety oversight of
trucking operations. Under an Agreement with TSA, DHS's Federal Law
Enforcement Training Center (FLETC) is creating a curriculum to deliver
security instruction to roadside officers who may come in contact with
hazmat truckers. The curriculum will include identifying suspicious
drivers, fraudulent documentation, suspicious cargo and reporting
findings. The initial focus of the new roadside awareness program will
be hazmat trucking operations.
Finally, DHS is engaged in preliminary discussions with industry
representatives to identify best practices currently in existence and
new measures that might increase protections for hazmat drivers. We
know that today a terrorist may need nothing more than a handgun and a
stoplight to hijack virtually any truck. A well-trained and vetted
driver, a hijack-resistant vehicle and a response-ready enforcement
community will create a highly efficient and effective barrier to
terrorist use of hazardous materials in transport.
The Road Ahead
The Hazmat Driver Threat Assessment Program is a vital part of our
overall program for protecting the security of transportation systems.
As we continue to explore, develop, and refine programs to protect the
transportation of hazardous materials we will be informed by our
guiding principles: risk analysis in development of programs,
randomness in implementation of measures, early intervention based upon
intelligence, and leveraging the power of multiple security networks.
As we move forward, I want to recognize the valuable cooperation
and assistance TSA has received from the Department of Transportation,
AAMVA and its State licensing partners in the development and
implementation of the Hazmat Threat Assessment Program, as well as
other industry partners in highway security, including motor carriers,
and driver and labor organizations.
Thank you, again, for giving me this opportunity to appear before
the Subcommittee. We look forward to working with the Subcommittee as
we continue to implement the hazmat background check program and
develop the regulations needed to implement the new mandates of the
SAFETEA-LU Act. I will be pleased to answer any questions you might
have.
Mr. Lungren. Thank you very much, Mr. Oberman, for your
testimony.
The chair now recognizes Mr. Robert McGuire, the associate
administrator, Pipeline and Hazardous Material Safety
Administration of the Department of Transportation.
STATEMENT OF ROBERT McGUIRE
Mr. McGuire. Good afternoon, Mr. Chairman and the
distinguished members of the subcommittee. Thank you for the
opportunity to appear before you today to discuss the
Department of Transportation's ongoing efforts to improve the
secure and safe transportation of hazardous material.
We understand the committee is considering modifying the
hazardous materials Commercial Driver License background check
requirement. We look forward to working together with the
Congress as we explore ways to maintain safety and security
while also minimizing the time and cost to the economy.
Like our colleagues at the Department of Homeland Security,
we are amenable to undertaking a risk-based analysis to
determine whether the existing requirements of the USA Patriot
Act should be modified. The Department of Transportation has
considerable expertise in assessing both the safety and
security risks associated with the transportation of hazardous
materials, and we look forward to working very closely with DHS
on this issue.
We work with the other modal administrations at DOT to
administer a comprehensive, nationwide program designed to
protect the nation from the risk to life, health, property, and
the environment inherent in the commercial transportation of
hazardous materials.
We have learned through our safety program that a
transportation system involving hazardous materials cannot be
safe if it is not secure. This is why DHS and DOT work in
concert to achieve an interrelated regulatory safety and
security framework.
We continue to seek ways to enhance the security of
hazardous material shipments. For example, in consultation with
DHS, we are moving forward to examine ways to enhance the
security of rail shipments of toxic inhalation materials.
DOT is also considering whether and to what extent
communications and tracking systems could be utilized to
improve the safe and secure transportation of certain hazardous
materials.
In considering various approaches to narrowing the current
list of materials required for a background check, we must
analyze the relative risk for diversion and misuse of hazardous
material.
Second, we cannot limit our review to individual materials,
but rather must consider various combinations.
Third, we believe that any modifications to the list of
materials triggering a driver background check should be based
on security risk assessment that considers potential scenarios
under which a truck could be diverted for terrorist use and
evaluates the degree to which driver background checks would
address those factors.
Lastly, we must consider the role fulfilled by our state
partners and work with them. It is necessary that any possible
modifications to the current regime be done in full partnership
with them. Establishing a new endorsement on the CAL would
likely require costly revisions to the information technology
systems in all 50 states and the District of Columbia.
We recognize that there is always room for improvement and
believe that there is more work to be done on this issue. The
department looks forward to working with the members of this
subcommittee, the Congress, the states, and our stakeholders,
as we move forward.
Mr. Chairman, I commend you and the members of this
subcommittee for your leadership. I thank you for the
opportunity to be here today, and I look forward to answering
any questions you may have.
[The statement of Mr. McGuire follows:]
Prepared Statement of Robert McGuire
Mr. Chairman and distinguished members of the Subcommittee: thank
you for the opportunity to appear before you today to discuss the
Department of Transportation's ongoing efforts to improve the secure
transportation of hazardous materials.
Introduction
We understand the Committee is currently considering options for
modifying background check requirements for Commercial Driver's
Licenses (CDL). In particular, the Committee is considering narrowing
the list of materials required for background checks. Like our
colleagues at the Department of Homeland Security, we believe an
opportunity exists to improve the safety and security of hazardous
materials movements, by modifying the current requirements. We believe
any such modification should be predicated upon a risk-based analysis
rather than a blanket adoption of an environmental and safety list
currently used. We believe modifications to the list, which would
require modification of the USA PATRIOT Act, should be developed
through the collective efforts of all stakeholders, including DHS, DOT,
other interested Federal agencies, States, and the industry.
DOT has considerable expertise in assessing both the safety and
security risks associated with the transportation of hazardous
materials and we look forward to working very closely with DHS on this
issue.
DOT's Hazardous Materials Program
The Pipeline and Hazardous Materials Safety Administration (PHMSA),
along with other modal administrations at DOT, administers a
comprehensive, nationwide program designed to protect our Nation from
risks to life, health, property, and the environment inherent in the
commercial transportation of hazardous materials.
Hazardous materials are essential to our citizens, and to our
economy. These materials fuel automobiles; heat and cool our homes and
offices; and are used in farming, medical applications, manufacturing,
mining, and other industrial processes. More than 3 billion tons of
regulated hazardous materials--including explosive, poisonous,
corrosive, flammable, and radioactive materials--are transported each
year.
We oversee the safe and secure shipment of over 1.2 million daily
shipments of hazardous materials moving by plane, train, truck, or
vessel in quantities ranging from several ounces to thousands of
gallons. These shipments frequently move through densely populated or
sensitive areas where an incident could result in loss of life, serious
injury, or significant environmental damage. Our communities,
particularly the public and workers engaged in hazardous materials
commerce, count on the safe and secure transport of these shipments.
The Department's hazardous materials transportation safety program
has historically focused on reducing risks related to the unintentional
release of hazardous materials. Since 9/11, we have moved aggressively,
recognizing and addressing safety and security issues associated with
the commercial transportation of hazardous materials.
Hazardous materials safety and security are mutually interdependent
activities. This principle was recognized by Congress in the Homeland
Security Act of 2002. Section 1711 of this act amended the Federal
hazardous materials transportation law to authorize the Secretary of
Transportation to ``prescribe regulations for the safe transportation,
including security, of hazardous material in intrastate, interstate,
and foreign commerce.''
DOT shares responsibility for hazardous materials transportation
security with DHS. The two departments consult on security-related
hazardous materials transportation requirements and matters to assure
these requirements are consistent with the Nation's overall security
policy goals and objectives. We constantly strive to assure our two
departments coordinate our efforts so that the regulated industry is
not confronted with inconsistent regulations.
Hazmat CDL and Security Background Checks
Pursuant to the Commercial Motor Vehicle Safety Act of 1986,
commercial motor vehicle drivers transporting placarded hazardous
materials under the DOT Hazardous Materials Regulations must have a
hazardous materials endorsement. This endorsement to a basic CDL
reflects that drivers transporting hazardous materials are trained and
possess the necessary knowledge to safely handle the specific materials
they transport.
In the aftermath of the 9/11 attacks, Congress enacted the USA
PATRIOT Act. The PATRIOT Act prohibits a State from issuing a license
to operate a motor vehicle transporting hazardous materials in commerce
unless the Secretary of Transportation has first determined the
individual does not pose a security risk warranting denial of the
license. The responsibility for this determination was subsequently
transferred to the Secretary of Homeland Security.
In 2004, DOT and DHS issued regulations implementing the hazardous
materials licensing provisions of the PATRIOT Act. DHS's regulation
established procedures for determining whether an individual poses a
security threat warranting denial of a hazardous materials endorsement
for a CDL and for appealing and issuing waivers to such determinations.
DOT issued a companion regulation amending Part 384 of the Federal
Motor Carrier Safety Regulations (FMCSRs) to prohibit States from
issuing, renewing, transferring, or upgrading a CDL with a hazardous
materials endorsement unless the Attorney General has first conducted a
background records check of the applicant, and DHS has determined the
applicant does not pose a security threat warranting denial of the
hazardous materials endorsement. DOT's companion regulation also
extends the list of hazardous materials for which an endorsement is
required to include ``select agents'' as designated by the Centers for
Disease Control and Prevention. Thus, DHS and DOT regulations work in
concert to achieve an interrelated regulatory safety and security
framework.
Proposals to Modify Background Check Requirements
As noted earlier, DOT has vast experience in regulating the safe
and secure movement of hazardous materials. Through PHMSA and other
modal administrations, our regulations establish a prevention-oriented
risk management system focused on identifying and reducing both the
probability and quantity of a hazardous material release. We collect
and analyze data on hazardous materials--incidents, regulatory actions,
and enforcement activity--to determine the safety and security risks
associated with the transportation of hazardous materials and the best
ways to mitigate those risks.
We believe modifications to the list of materials triggering a
driver background check must be based upon a qualitative, scientific,
risk-based analysis. Please allow me to briefly discuss some of the
issues that should be considered as part of this analysis.
First, we must analyze the relative risk for diversion and misuse
of the hazardous materials being considered for exclusion from the
background requirements. Second, we cannot limit our review to
individual materials, but rather must consider all possible safety and
security risks which come from instances where various combinations of
relatively low risk hazardous materials could result in substantial
death, injury, or damage to the environment. Third, we must consider
factors affecting vulnerability to shipments in transport, and finally,
we must also carefully analyze the degree to which driver background
checks would identify and address those potential vulnerabilities.
Not to be overlooked is the role fulfilled by our State partners.
It is necessary that any possible modifications to the current regime
be done in full partnership with them. Establishing a new endorsement
on the CDL would require costly revisions to the information technology
systems in all 50 States and the District of Columbia. The States have
just completed major revisions to implement the current PATRIOT Act
background check regulations and other changes to the CDL requirements
mandated by the Motor Carrier Improvement Act of 1999. States are also
preparing for implementation of the Real ID Act, requiring yet further
substantial changes to their systems. We believe working closely with
our partners, including The American Association of Motor Vehicle
Administrators (AAMVA), is critical as we move forward.
Ongoing DOT Hazardous Materials Security Initiatives
In 2003, DOT published a final rule--known as HM-232--requiring
shippers and carriers of certain highly hazardous materials to develop
and implement a security plan. The security plan must include an
assessment of possible transportation security risks as well as the
appropriate measures being taken to address the assessed risks. At a
minimum, the security plan must address security risks associated with
personnel security, unauthorized access, and en route security. The
final rule also requires security awareness training for all hazardous
materials employees and in-depth security training for employees of
persons required to develop and implement security plans when
transporting placarded hazardous material and other select toxins.
The Department has aggressively pursued enforcement of the security
regulations. To date, the Federal Motor Carrier Safety Administration
(FMCSA), the Federal Railroad Administration (FRA), and The Pipeline
and Hazardous Materials Safety Administration (PHMSA) have conducted
thousands of security reviews and have initiated over 500 enforcement
actions.
We continue to seek ways to enhance the security of hazardous
materials shipments. For example, in consultation with DHS, we are
moving forward to examine ways to enhance the security of rail
shipments of Toxic Inhalation (TIH) materials. We are also considering
other general requirements for enhancing the security of rail shipments
of hazardous materials. DOT is actively considering whether, and to
what extent, communications and tracking systems should be required for
motor carriers transporting certain hazardous materials.
Conclusion
The Department of Transportation takes very seriously its
responsibility to ensure the safe and secure movement of hazardous
materials across our transportation system. Although we believe the
regulatory framework currently in place is a good start, we recognize
that there is always room for improvement. Together with DHS, we seek
to achieve the highest level of safety and security possible, while at
the same time, minimizing the burden and associated cost to commerce.
We recognize that there is more work to be done, and look forward
to working with the Members of this Subcommittee, the Congress, and our
stakeholders as we embark on a serious and open discussion with all
interested parties. We will achieve a workable framework that enhances
the safe and secure transportation of hazardous materials.
Mr. Chairman, I commend you and the members of this Subcommittee
for your leadership. I thank you for the opportunity to be here today
and look forward to answering any questions the Subcommittee may have.
Mr. Lungren. Thank you very much, Mr. McGuire, for your
testimony.
At this time, I would take 5 minutes to start the round of
questioning.
Mr. McGuire, can you tell me, when were you notified you
were going to be testifying before this panel?
Mr. McGuire. Yesterday morning.
Mr. Lungren. Yesterday morning. So you were unable, if you
were notified yesterday morning you would be testifying before
us, to comply with the 48-hour rule that we would have your
testimony 48 hours ahead of time, correct?
Mr. McGuire. That is correct.
Mr. Lungren. Is it the position of the Department of
Transportation that you will decline to testify if, in fact,
you are put on a second panel?
Mr. McGuire. Mr. Chairman, I was not privy to that
discussion. I could not speak for the department, in terms of
our future actions.
Mr. Lungren. Well, I am just asking. Is that a policy of
the department of which you are aware?
Mr. McGuire. It is not a policy that I was aware of.
Mr. Lungren. Mr. Oberman, I am trying to figure out here
where the flexibility is. And, as I understand it--and I was
not in Congress at the time the original Patriot Act was
passed--the Patriot Act prohibited the states from issuing
commercial drivers licenses to an individual to operate a motor
vehicle to transport HAZMAT for commercial purposes unless the
Secretary of Transportation had determined that the individual
does not pose a security risk.
The scope included in the Patriot Act was the relevant
check of criminal history, immigration status, and
international databases. The Secretary of Transportation in the
year 2003 delegated this responsibility to TSA. Then TSA was
transferred to DHS, although the Secretary of Transportation
retained his authority to regulate the safe transportation of
HAZMAT, including driver qualifications, packaging standards,
placarding requirements, and classification of standards.
It is my understand that the final rule promulgated by TSA
in November of 2004 stipulated that all drivers seeking to
receive a hazardous materials endorsement on their state-issued
CDL required a submission to a name-based intelligence-related
check, immigration status verification, and, although not
stipulated in the Patriot Act, a fingerprint-based FBI criminal
history check.
If that is true, then it is the decision that has been made
by the TSA that the fingerprint check be a requirement of this
process. Is that correct?
Mr. Oberman. Mr. Chairman, that decision was taken very
carefully. And it is based on a separate statute which governs
background checks for purposes of employment or licensing.
It is a pre-9/11 bill. It was enacted in 1998. And it has
to do with how criminal records at the FBI are governed. And it
says that, if you are doing a background check for employment
or licensing purposes, which of course this is, that the
criminal history check must, in fact, be fingerprint-based and
not name-based.
So we were subject to that 1998 statute in executing the
2001 statute for truck drivers. I think, though, that it is
important to realize that there are numerous elements of the
program that I would consider to be flexible, given that we do
have a statutory requirement to 2001 and a 1998 statute that
governed that decision.
And those elements would include several things. First, we
gave the states the flexibility to partner with us in capturing
fingerprints and enrolling drivers. And that was done at the
request of the states. Seventeen states stepped up to that; 32
states in the District of Columbia decided to use TSA
resources, which we provided. And so--
Mr. Lungren. No, I understand. So you are saying you have
exercised flexibility within--
Mr. Oberman. That is right.
Mr. Lungren. --the authority you have. But I guess it is
your position that, if we were to make a decision that we are
including too many people in this, that you do not have to have
every HAZMAT do a full background check with fingerprints
because most of them do not haul that which is weaponable or
security-sensitive, if we were to make that decision, would
that require an affirmation action on the part of the Congress
to change the statute under which you operate?
Or could, if we made that decision, suggesting you did not
have to do that, could you go ahead and do that without a
change in statute?
Mr. Oberman. I think we need to change the statute, because
the statute says that everyone who seeks a HAZMAT endorsement
is subject to the background check. In other words, it is based
on statutes and regulations that govern DOT.
Mr. Lungren. Do you have any problem with the argument that
we are too inclusive right now?
Mr. Oberman. I do not have a problem overall, but I think
that this is an issue in which the details are very, very
important. And one of the--
Mr. Lungren. But, I mean, Coke syrup?
Mr. Oberman. Yes, I think--well, I--
Mr. Lungren. Do we need to have that being considered as
terrorist-based?
Mr. Oberman. Yes, I think that--
Mr. Lungren. I liked to drink that stuff when I worked at a
soda place.
Mr. Oberman. Right.
Mr. Lungren. And that probably would have killed me if I
drank it too much without putting the water in with it, but
that would not be a terrorist act. That would be a stupid act
on my part.
Mr. Oberman. Right. I think that--and I will let Mr.
McGuire address this--I think that the requirements that say
whether a material is hazardous or not is based on volume,
weight, combustibility, things of that nature.
And so I would not want to answer that out of context, to
say that, you know, our position is that Coke syrup in and of
itself is a hazardous material. You have to look at in the
context of the overall regulatory structure. I would like to
defer to DOT on that.
What I would say, though, is it is important to keep in
mind that we have not only defined a narrow list of crimes,
which are disqualifying--and we were given the statutory
discretion to do that--narrower than we have used in other
modes, but that we have also provided very significant appeal
and waiver processes to let drivers, as was discussed in the
earlier panel, who really have rehabilitated themselves to
continue to carry hazardous material.
So I just want to point that out. And then--
Mr. Lungren. I appreciate that. But before you go to that,
look, here is the problem. I will give you an analogy.
And it is something that Chairman Cox used to always say,
and I agreed with him on that. And I will continue to this
point, which is, when we were talking about trying to eliminate
terrorists from getting on airplane, right now we have cast the
net so wide--or to use another analogy, we have such a huge
haystack, that we are looking for the needle in the haystack,
it makes a whole lot of sense for us programmatically to try
and reduce the size of the haystack so we can look for that
needle.
Here, if we are going for everybody, we are not going to
get those that we are looking for. And we have an undue burden
on people who are out there. And we are sitting here saying,
``Well, you know, you could have too much Coke syrup.'' I mean,
you know, come on.
Maybe I am missing something, but that is not why we are
engaged in the war on terrorism, in my judgment.
So my time is expired.
Ms. Sanchez?
Ms. Sanchez. Thank you, Mr. Chairman.
Thank you, gentleman, for being before us.
Mr. Oberman, What is the status of the safety report? You
said soon. What does it mean?
Mr. Oberman. What it means is that it is in final
coordination within the department. And we will get it here as
soon as we can.
What I will tell you is that I think we fully understand
that Congress's intent, with the requirement that we report on
the issue of comparability, as well as the issues surrounding
the number of fingerprinting sites that are available.
And what I would say to you is that we do believe that
comparability should be included in this program. And we look
forward to working with the Department of Defense, the
Department of Energy, and others, so that the stories that were
described today do not occur.
In other words, if you are granted a security clearance,
for example, to carry hazardous materials for the military,
that you not, in turn, be re-vetted. I would just point out
that there are some--
Ms. Sanchez. That is a new policy? That is a new policy out
of your department?
Mr. Oberman. Well, it is an issue that we are going to
address in the report that the Congress asked us to address in
that requirement. So, yes, I mean, our intention is to work
with the other agencies to establish standards for
comparability, so that if you are checked by one federal
agency, you do not need to be checked again.
What I would caution just on that point, though, is that
there are some implementation requirements that we have to be
mindful of. One example, which is, again, not insurmountable
but important to note, is that the TSA background check for
hazardous materials truck drivers is good for a period of 5
years.
So if somebody was vetted, let's say, 4 1/2 years ago by
the Defense Department to carry hazardous materials and are now
seeking clearance for a HAZMAT endorsement from a state, we
have to make a decision as to whether that 4 1/2 year period
would be extended an additional 5 years or only an additional 6
months.
So, notionally, we are in agreement. But we have to make
sure that we address through all the details.
And then on the second safety requirement, SAFETEA-LU
requirement, regarding the number of sites that are available
for fingerprinting, I think this is an issue that will never go
away to a certain extent, because it is a big, vast country and
these states are very big geographically.
What I would say, though, is that we are working with the
trucking industry and with the DMVs to try to add or move sites
whenever we can. We are doing that in an ongoing basis. I am
not sure we are ever going to be perfect, but I do not think
that you ever could be.
And so, as I said, we are remiss in having those reports be
late, but they will be up here just as soon as they can. And
your urging us today will--
Ms. Sanchez. Let me ask the question in another way: What
date do you think that report is going to be up here?
Mr. Oberman. I would say no later than November 15th. We
will do everything we can to get it up here by then. And I have
now made a commitment, so I am going to have to maybe start--
Ms. Sanchez. Do you know that your department makes
commitments all the time and still has not sent us reports that
we asked for almost 4 years ago--
Mr. Oberman. Understood.
Ms. Sanchez. --about 2 1/2 years ago?
Mr. Oberman. Understood. I will do everything I can to get
these two up to you by no later than November 15th.
Ms. Sanchez. 2005?
[Laughter.]
Mr. Oberman. 2005.
Ms. Sanchez. Okay, I want to hear you say that.
Mr. Oberman. 2005.
[Laughter.]
Ms. Sanchez. Okay, let's talk a little bit about
transportation security incidents. Under the regulation, this
term is defined as an incident resulting in a significant loss
of life, environment damage, transportation system disruption,
or an economic system disruption in a particular area.
The definition is broad. What do you think it means? And
are you going to tighten this up or just leave it like that?
Mr. Oberman. Well, I think that it is something we would be
willing to look at. I am not necessarily anxious to broaden it.
What I would tell you is that--
Ms. Sanchez. To broaden it? No, I am not asking you to
broaden it.
Mr. Oberman. To narrow it, rather. Sorry.
I think that--a couple of things on that topic. Number one,
the number of instances in which we see transportation-related
incidents in a background check is pretty rare.
And they are of grave concern to us, because our mission
across TSA and, of course, across all of credentialing programs
is to keep people that might present a potential threat out of
secure areas of the transportation system, whether it is the
tarmac of an airport or the cab of a truck carrying hazardous
materials.
And so, again, I am hesitant to make a blanket statement
that we would be willing to narrow that. I think it is very
rare that somebody has such an incident that we are made aware
of during a background check.
If you have examples or have been made aware of such
examples, I would really like to take a look at those, because
they are of note every time they happen. It is not that common.
Ms. Sanchez. Well, in California, where I live, a
transportation system disruption in a particular area happens
every single day on our freeways. A lot of times, it may
involve a trucker. It does not necessarily mean that they
caused it, but they are involved in it.
Mr. Oberman. I think when we talk transportation security
incidents, that were another ``I'' word, again, looking at
intent, as opposed to an unforeseen circumstance that was out
of the control of a driver. So that if they, you know, slipped
on a patch of ice or something, I am not sure that that would
rise to the level of--
Ms. Sanchez. No, we do not have ice in southern California.
Mr. Oberman. --a transportation security--understood. But
we do in Chicago where I live. Anyway, the point is--
Mr. Lungren. I hope we did not lose some mountains since I
have been gone. I think you do have some ice.
Ms. Sanchez. We call that the north.
Mr. Oberman. Anyway, I think that it really gets to the
issue of intent and whether somebody is betraying the trust
that we have shown in them to act as the security of the
system, where the potential for damage is much greater than in
an unprotected area.
Ms. Sanchez. Well, I might suggest that you take a look at
that, because--
Mr. Oberman. I would be happy to.
Ms. Sanchez. --we have had certain people come forward and
tell us their horror stories on this.
Ms. Sanchez. Again, since the process is fairly new, I am
anticipating we may have even more people.
Thank you, Mr. Chairman. I see my time is up.
Mr. Lungren. Yes.
The gentlelady from Texas, Ms. Jackson-Lee, is recognized.
Ms. Jackson-Lee. Thank you very much, Mr. Chairman.
I would like to continue in the line of questioning of my
colleague, the ranking member, at least sort of generally
continue on that theme, Mr. Oberman. And thank you for your
testimony.
I said in the earlier session, panel, that sometimes we are
immersed in bureaucracy, even as we attempted to develop the
Homeland Security Department and to bring all the factors
together that would help secure the homeland. But what it does
is, it puts people with different skills in the midst of
responsibilities that they might not necessarily have the
skills.
For example, I do not necessarily consider Transportation
Security Administration well-grounded in criminal law and as
well to be able to define certain crimes as being particularly
relevant to the work at hand.
For those of us who believe in second chances for
individuals who have unfortunately are short of crimes of
violence or sexual predators against children, which we
understand they are both very difficult challenges, but believe
in second chances and believe in the idea of people having the
ability to be rehabilitated and then ultimately providing for
their families, juxtaposed against the responsibility for
securing the homeland, I am befuddled about the current list of
disqualifying offenses, which include a felony of dishonesty,
fraud or misrepresentation, as it may relate to national
security.
That is a very broad definition. It appears to cover a wide
range of crimes. And so I question whether all of them would
really cause someone to be a terrorism security risk in the
United States.
Is it your intent, TSA's intent, to better define and limit
what crimes would fall under this very broad category? And how,
then, will you do it? How quickly would you do it?
Would you also answer the question, which seems to be
common sense to me, that, if TSA is in the business of denying
applicants, would not it be appropriate and meet the standards
of due process if we established an administrative law judge so
that the appeals could be before an independent arbiter?
Mr. Oberman. Thank you, Congresswoman. Let me take each of
those in turn.
First, what I would say is that it is important to remember
that the statute did require TSA to develop a list of
disqualifying crimes. And I think, to our credit, we did that
in conjunction with the Department of Justice, which does have,
of course, a grounding in criminal law, and consulted with them
and other agencies in putting that list together.
And we narrowed the list quite a bit, in comparison to what
we are doing in other modes, because we are trying to reduce
the size of the haystack and really focus on potential threats.
I think it is also important to note that, in the 9 1/2
months, 10 months that we have had the program up, we have
denied HAZMAT endorsements to fewer than 1 percent of those who
have applied. And that is, of course, a smaller percentage than
those with criminal histories.
But, again, we are taking a risk-based approach and looking
at people's records, based on what we think is a propensity to
commit damage or at least presents a risk that we are not
willing to take, having that driver carry HAZMAT.
With respect to reviewing the list overall, I think that we
are happy to do that. We are happy to do that in conjunction
with the Congress, as well as other agencies, to see if we can
further refine and hone that list.
I think, on the example that you raise, with respect to
dishonesty and so forth, again, we are concerned about people
that wittingly or unwittingly have a greater likelihood of
being involved in a potential terrorist incident and, given
that they have got a track record of being dishonest, might be
a key link in a plan and not realize that they are being
exploited by a potential terrorist threat.
So that is why that is of concern. I will tell you that it
is, again, very, very rare that it comes up and that we see it.
And I guess on the final point, regarding administrative
law judges, that is something that we have heard from the
industry, as well as the labor unions, and so forth. And I
think that I would tell you a couple of things.
Number one, that is a big resource burden. In other words,
administrative law judges are few and far between. That would
increase our fee levels quite a bit, to have a whole process
for the administrative law judge--
Ms. Jackson-Lee. Then let me--Mr. Oberman, so that I can
get Mr. McGuire in, why don't you give me the rest of the
answer in writing--
Mr. Oberman. Okay.
Ms. Jackson-Lee. --because I think all of those points that
you are making right now can be fixed.
Mr. McGuire--I was getting ready to call you Mr. Oberman--
please express the great disappointment, not that we do not
respect your presence here, but a great disappointment in the
absence of--not Mr. Oberman, but the other gentleman that was
supposed to be here, Mr. McCown.
Let me express a great disappointment. And maybe the press
should raise their hands and say that they are still in the
room.
But what I quickly wanted to ask you--and let me also just
thank the Department of Transportation, on a good note, for the
great work that you did in helping many of us at Hurricane
Rita.
But Mr. Laizure mentioned that he has been fingerprinted
six times for a variety of different hazardous material
endorsements. Comment on that. And comment on the drivers that
have complained about the limited number of locations.
You think you are doing a good job, but can you do better?
Mr. McGuire. I am sorry. I am going to have to pass that
question to Mr. Oberman, because that is part of the TSA
program and not part of what our responsibilities are.
Ms. Jackson-Lee. Then it would be helpful to find out--and
I will get that from Mr. Oberman, then, in writing. I think I
will do that.
Let me just ask you, what is the cooperative relationship
that you have with TSA? And is that hindered by the lack of
cohesion between the DOT and the TSA aspects?
Mr. McGuire. No. Our impression is that the relationship is
working quite well. We have been working with TSA together for
a number of years on a number of issues. This is only but one
of them.
Others would include the rail transportation of toxic-by-
inhalation materials, the topic that has been mentioned very
briefly today about potential tracking of hazardous material
shipments on truck and by rail.
So I think that, in general, I would say that our
relationship has been quite good and quite productive.
Ms. Jackson-Lee. And, Mr. Oberman, if you would give me
those questions I had in writing, and that is about the
repetitive fingerprinting and the lack of convenient sites,
that would be very helpful. And that I think we need to work on
very, very--in almost near time.
Mr. Oberman. Be happy to.
Ms. Jackson-Lee. Thank you.
Mr. Lungren. Mr. McGuire, you state in your testimony: We
must consider factors affecting vulnerability and shipments in
transport, and that we must also carefully analyze the degree
to which driver background checks would identify and address
these potential vulnerabilities.
Speaking generally--and maybe both of you could answer
this--what vulnerabilities have you identified for the trucking
industry? If you were starting from scratch and developing a
security program for the trucking industry, would the
background check in its current form be part of it?
Mr. McGuire?
Mr. McGuire. Yes, let me just back up a little bit and say
that there are a wide range of hazardous materials that are out
there. Not all of them are placarded. There are many that are
not placarded.
Within the range of placarded materials that we have been
talking about today, because that is the trigger that requires
not only the background check, the CDL endorsement, and the
security plans that we require, there is a range within there.
And we are amenable to taking a look at that, at that list of
materials.
I think that where the vulnerability comes in is that there
are a number of materials out there that are not included in
some of the very narrow lists that have been suggested, that
not only have the potential but actually have been used in
terrorist acts. Those include the ammonium nitrate fertilizers
that Timothy McVeigh used, the gasoline and other fuels that
have been used in foreign countries.
Those kinds of things are things that we believe must be
included on the list. So we are amenable to looking at the
broader range of materials, but we do not want to go too
narrow.
I think that, as we look at that list, some of the concerns
that we have are, number one, if the U.N. list, for example,
covers 50 to 75 percent of the materials that are covered on
our list--which is our rough estimate; we have not really
nailed that down, as of yet--is that really going to make a
significant difference?
We heard testimony in the earlier panel that many companies
just go ahead and have all of their drivers get certified so
that they do not have the problem of having lists of drivers,
two and three lists of drivers, those for general freight,
those for HAZMAT without an endorsement, those for HAZMAT that
will require the endorsement.
Similarly, from an enforcement perspective for the states,
we find that many of the states are commenting that, for the
policemen, or the state policemen who shows up, right now it is
very simple to say, ``This vehicle is placarded. Therefore, the
driver needs a CDL. Therefore, the driver needs a background
check. And, also, the company needs a security plan.''
Mr. Lungren. Mr. Oberman?
Mr. Oberman. Thank you, Mr. Chairman.
I think that we would welcome the opportunity to take a
fresh look at how we do background checks, particularly since
we are vetting people all across modes of transportation.
I think, though, within that context, it is important to
note that there are certain criminal histories that would be of
great concern to us, certain immigration violations that would
be of great concern to us, and, of course, no other suspected
ties to terrorism that would be of concern to us.
All three of those elements are part of the background
check today. And we have taken steps to really, again, reduce
the size of the haystack. But, of course, we would welcome the
opportunity to look at that again. It helps us stay sharp to be
in constant evaluation mode.
Mr. Lungren. Look, my background is--I have been accused of
being hard-nosed or hard-something-or-else in the past as a
legislator and an attorney general.
But I do understand that we could have a CYA approach to
things in which we basically say, ``As long as we include all
felony conviction, as long as we include every possible thing
that could be utilized, matches and so forth, we are never
going to be accused of not covering that one unique situation
where terrorists put together, you know, 27 different things
and got somebody whose felony background really had nothing to
do with that. But we will never be criticized for allowing that
person to have one of these licenses.''
On the other hand, if there is a legitimate question that
we are denying people who have really done a good job of
driving trucks and somebody we can trust, but has a felony
conviction, for which I am not going to excuse that person, but
really does not relate to this, I mean, if that is a problem,
maybe we better take a look at it. We have an obligation to
take a look at it.
Mr. Oberman. I think we do have an obligation to take a
look at it on an ongoing basis because this is how people earn
their livelihoods. We agree with that.
I think I would just mention two things that are important
to keep in mind. Number one, since January 31st when we
started, we have eliminated--rejected, rather, fewer than 1
percent of those who have applied.
Mr. Lungren. It is like 672, I think, is the list I have.
But if you project that over those in the universe that could
apply, I believe that would lead to 15,000, if they all
applied. That is not insignificant.
Mr. Oberman. Well, we think there are about a million
active HAZMAT drivers in the country. And it is 670 out of
about 130,000. So our estimates are far fewer than 15,000.
But, even so, we agree that that is--any number is
significant, because, again, it is how people earn their
livelihoods. What I would say, though, is that I am part of the
appeal and waiver process.
And, in many cases, you are right. People have a felony
conviction in their past, they get a job driving a truck, and
then, from that point forward, their records are completely
clean. Almost every single one of those drivers has been
granted a waiver by TSA, because we are trying to hone in on
the problem that you described earlier.
So I think it is absolutely critical to continue to look at
how we do this. But in the same breath, I think the evidence of
how we have administered the program is important to keep in
mind, because, you know, we are under 1 percent.
Mr. Lungren. I appreciate it.
Ms. Sanchez, do you have anything else?
Okay, well, that concludes the second panel. I thank you
for your testimony. I always appreciate people who show up and
testify before us. Let the record reflect that there are still
members of the press in attendance.
We do appreciate the witnesses from both panels for their
valuable testimony and the members for their questions. The
members of the committee may have some additional questions for
the witnesses, and we will ask you to respond to those in
writing.
The hearing record will remain open for 10 days.
And without objection, the committee stands adjourned.
[Whereupon, at 4:00 p.m., the subcommittee was adjourned.]
A P P E N D I X
House of Representatives,
Subcommittee on Economic Security, Infrastructure
Protection and Cybersecurity
Washington, DC, July 17, 2002.
Dear Chairman Lungren:
Thank you for providing me with the opportunity to testify
on behalf of the International Brotherhood of Teamsters at the
hearing, HAZMAT Trucking Security" held on November 1, 2005. In
response to your question regarding which of the crimes should
be removed from the list of disqualifying crimes used by the
Transportation Security Administration to screen hazardous
materials endorsement applicants please accept the following
response.
The International Brotherhood of Teamsters shares the
Transportation Security Administration's concerns regarding the
importance of protecting Americans from terrorism threats. The
recognizes that terrorists may try to take advantage of our
transportation network in order to out dangerous and deadly
acts against the United States. It is in everyone's interest to
keep people with a propensity to commit terrorism from driving
trucks carrying hazardous materials. However, in keeping our
country safe, we must ensure that we do not violate the civil
rights of employees who may have committed crimes in the past
but are now attempting to earn a living for themselves and
their families, if they do not indeed pose a threat to national
security.
The TSA has developed a list of crimes that would
disqualify people from obtaining hazmat endorsements for either
a period of several years or for life. This list is overly
broad and does not necessarily relate to goal of weeding out
people who pose a threat to national security. In addition, it
violates due process in that it disqualifies individuals who
are only wanted or indicted for certain crimes, but have not
convicted.
The IBT believes that any disqualifying crime should be
clearly connected with the propensity to engage in terrorist
activity. Several of the crimes listed, as horrendous as they
are, do not relate to whether or not a person is likely to be a
terrorist in the future. Furthermore, conspiracy or attempt to
commit many of these crimes is also not an indication of
terrorist tendencies. An individual who has been convicted of a
crime related to terrorism, espionage, sedition or treason does
potentially pose a threat to national security. Therefore,
these are the only crimes that should disqualify a driver from
receiving a hazmat endorsement. The remaining crimes on the
list do not clearly relate to goal of protecting the American
people from national security threats and should be removed
from the list entirely.
Thank you for giving me the opportunity to discuss this
issue with you. I hope that I have made it clear that while the
supports the goal of keeping our transportation systems safe
and secure, it violates basic freedoms and civil liberties to
deny a hazmat endorsement and therefore employment
opportunities to such a broad range of people.
Sincerely,
Scott A. Madar, MHS, CIH,
Assistant Director, Safety and Health Department
cc: Honorable Loretta Sanchez,
Ranking Member Director, International Brotherhood of Teamsters