[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
HAZARDOUS MATERIALS ENDORSEMENT BACKGROUND CHECKS
=======================================================================
(109-18)
HEARING
BEFORE THE
SUBCOMMITTEE ON
HIGHWAYS, TRANSIT AND PIPELINES
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MAY 11, 2005
__________
Printed for the use of the
Committee on Transportation and Infrastructure
_____
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON: 2006
22-497 PDF
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice- JAMES L. OBERSTAR, Minnesota
Chair NICK J. RAHALL, II, West Virginia
SHERWOOD L. BOEHLERT, New York PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee ELEANOR HOLMES NORTON, District of
WAYNE T. GILCHREST, Maryland Columbia
JOHN L. MICA, Florida JERROLD NADLER, New York
PETER HOEKSTRA, Michigan ROBERT MENENDEZ, New Jersey
VERNON J. EHLERS, Michigan CORRINE BROWN, Florida
SPENCER BACHUS, Alabama BOB FILNER, California
STEVEN C. LaTOURETTE, Ohio EDDIE BERNICE JOHNSON, Texas
SUE W. KELLY, New York GENE TAYLOR, Mississippi
RICHARD H. BAKER, Louisiana JUANITA MILLENDER-McDONALD,
ROBERT W. NEY, Ohio California
FRANK A. LoBIONDO, New Jersey ELIJAH E. CUMMINGS, Maryland
JERRY MORAN, Kansas EARL BLUMENAUER, Oregon
GARY G. MILLER, California ELLEN O. TAUSCHER, California
ROBIN HAYES, North Carolina BILL PASCRELL, Jr., New Jersey
ROB SIMMONS, Connecticut LEONARD L. BOSWELL, Iowa
HENRY E. BROWN, Jr., South Carolina TIM HOLDEN, Pennsylvania
TIMOTHY V. JOHNSON, Illinois BRIAN BAIRD, Washington
TODD RUSSELL PLATTS, Pennsylvania SHELLEY BERKLEY, Nevada
SAM GRAVES, Missouri JIM MATHESON, Utah
MARK R. KENNEDY, Minnesota MICHAEL M. HONDA, California
BILL SHUSTER, Pennsylvania RICK LARSEN, Washington
JOHN BOOZMAN, Arkansas MICHAEL E. CAPUANO, Massachusetts
JIM GERLACH, Pennsylvania ANTHONY D. WEINER, New York
MARIO DIAZ-BALART, Florida JULIA CARSON, Indiana
JON C. PORTER, Nevada TIMOTHY H. BISHOP, New York
TOM OSBORNE, Nebraska MICHAEL H. MICHAUD, Maine
KENNY MARCHANT, Texas LINCOLN DAVIS, Tennessee
MICHAEL E. SODREL, Indiana BEN CHANDLER, Kentucky
CHARLES W. DENT, Pennsylvania BRIAN HIGGINS, New York
TED POE, Texas RUSS CARNAHAN, Missouri
DAVID G. REICHERT, Washington ALLYSON Y. SCHWARTZ, Pennsylvania
CONNIE MACK, Florida JOHN T. SALAZAR, Colorado
JOHN R. `RANDY' KUHL, Jr., New York
LUIS G. FORTUNO, Puerto Rico
LYNN A. WESTMORELAND, Georgia
CHARLES W. BOUSTANY, Jr., Louisiana
VACANCY
(ii)
SUBCOMMITTEE ON HIGHWAYS, TRANSIT AND PIPELINES
THOMAS E. PETRI, Wisconsin, Chairman
SHERWOOD L. BOEHLERT, New York PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina NICK J. RAHALL II, West Virginia
JOHN J. DUNCAN, Jr., Tennessee JERROLD NADLER, New York
JOHN L. MICA, Florida GENE TAYLOR, Mississippi
PETER HOEKSTRA, Michigan JUANITA MILLENDER-McDONALD,
SPENCER BACHUS, Alabama California
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
SUE W. KELLY, New York EARL BLUMENAUER, Oregon
RICHARD H. BAKER, Louisiana ELLEN O. TAUSCHER, California
ROBERT W. NEY, Ohio BILL PASCRELL, JR., New Jersey
FRANK A. LoBIONDO, New Jersey TIM HOLDEN, Pennsylvania
JERRY MORAN, Kansas BRIAN BAIRD, Washington
GARY G. MILLER, California, Vice- SHELLEY BERKLEY, Nevada
Chair JIM MATHESON, Utah
ROBIN HAYES, North Carolina MICHAEL M. HONDA, California
ROB SIMMONS, Connecticut RICK LARSEN, Washington
HENRY E. BROWN, Jr., South Carolina MICHAEL E. CAPUANO, Massachusetts
TIMOTHY V. JOHNSON, Illinois ANTHONY D. WEINER, New York
TODD RUSSELL PLATTS, Pennsylvania JULIA CARSON, Indiana
SAM GRAVES, Missouri TIMOTHY H. BISHOP, New York
MARK R. KENNEDY, Minnesota MICHAEL H. MICHAUD, Maine
BILL SHUSTER, Pennsylvania LINCOLN DAVIS, Tennessee
JOHN BOOZMAN, Arkansas BEN CHANDLER, Kentucky
MARIO DIAZ-BALART, Florida BRIAN HIGGINS, New York
JON C. PORTER, Nevada RUSS CARNAHAN, Missouri
TOM OSBORNE, Nebraska ALLYSON Y. SCHWARTZ, Pennsylvania
KENNY MARCHANT, Texas JAMES L. OBERSTAR, Minnesota
MICHAEL E. SODREL, Indiana (Ex Officio)
DAVID G. REICHERT, Washington
VACANCY
DON YOUNG, Alaska
(Ex Officio)
(iii)
CONTENTS
TESTIMONY
Page
Blank, Tom, Chief Support Systems Officer for the Transportation
Security Administration, Department of Homeland Security....... 3
England, Daniel E., Chief Executive Officer, C.R. England, Inc.. 3
Madar, Scott, Assistant Director of the Safety and Health
Department, International Brotherhood of Teamsters............. 3
Sandberg, Annette M., Administrator, Federal Motor Carriers
Safety Administration, Department of Transportation............ 3
Smit, D.B., Commissioner Department of Motor Vehicles,
Commonwealth of Virginia....................................... 3
Zinser, Todd J., Deputy Inspector General, Department of
Transportation................................................. 3
PREPARED STATEMENT SUBMITTED BY A MEMBER OF CONGRESS
Oberstar, Hon. James L., of Minnesota............................ 61
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Blank, Tom...................................................... 26
England, Daniel E............................................... 33
Madar, Scott.................................................... 43
Sandberg, Annette M............................................. 64
Smit, D.B....................................................... 68
Zinser, Todd J.................................................. 88
ADDITION TO THE RECORD
Agricultural Retailers Association, statement.................... 107
HAZARDOUS MATERIALS ENDORSEMENT BACKGROUND CHECKS
----------
Wednesday, May 11, 2005
House of Representatives, Committee on
Transportation and Infrastructure, Subcommittee
on Highways, Transit and Pipelines, Washington,
D.C.
The subcommittee met, pursuant to call, at 3:15 p.m., in
Room 2167, Rayburn House Office Building, Hon. Thomas E. Petri
[chairman of the subcommittee] presiding.
Mr. Petri. The meeting of the Subcommittee on Highways,
Transit, and Pipelines will come to order.
We will do our best to accommodate our witnesses'
schedules. To that end, the members of the Committee, if they
appear, will make closing statements rather than opening
statements. I will make one, and Mr. DeFazio, and possibly Mr.
Oberstar at the very beginning, but abbreviated.
We welcome you and we very much appreciate your coming to
discuss this very important subject. This oversight hearing of
the Subcommittee on Highways, Transit, and Pipelines will
specifically focus on background checks for drivers with a
HAZMAT endorsement on their Commercial Drivers License.
This requirement, which was included in the Patriot Act
that passed shortly after 9-11, seeks to identify persons
carrying hazardous materials that may pose a security threat,
and address, in part, the vulnerability posed by thousands of
hazardous materials shipments traveling each day on our
Nation's highways. The process will include a fingerprint-based
criminal history, immigration, and intelligence-related checks
based on driver information. During 2004, the Transportation
Security Agency screened 2.7 million drivers with a HAZMAT
endorsement by completing a name-based screening of drivers
with various Government databases.
In the years leading up to the implementation of the
background checks, many questions were raised as to how the
program would be structured, how States would have to adjust
Commercial Drivers License programs to meet the new
requirements, and the impact on trucking companies and drivers
as the background checks were phased in. States were uncertain
how to structure their program, as guidance from the
Transportation Safety Administration was delayed even as
compliance deadlines looms. States also had to determine
whether to utilize TSA agents for the collection of information
and fingerprinting or whether to gather the information on its
own.
Other questions, which I hope will be covered by the
witnesses in the course of this hearing, include: the cost of
the program, which may be $72 million for the Transportation
Safety Administration over the first five years; the ability of
the Administration to provide timely security threat
assessments on up to 45,000 applicants per month and handle any
appeals that may result; additional fees the drivers face to
meet the increased cost of securing a HAZMAT endorsement;
rights of drivers who have been denied a license based on the
background checks; what information will be shared with
companies on the drivers affected; and the impact on interstate
commerce if drivers are unable to drive due to delays in the
processing of license renewals.
At a time when we are already facing a drivers shortage,
some have expressed concern that the new requirements will have
a chilling effect on recruitment and retention of HAZMAT
drivers, with some suggesting up to 20 percent of drivers not
choosing to renew their HAZMAT endorsement.
Today we will hear from a distinguished panel representing
a cross-section of interests that are affected by this,
including a representative from the Transportation Safety
Administration, from the Federal Motor Carrier Safety
Administration, the Office of the Inspector General of the
Department of Transportation, the Virginia Department of Motor
Vehicles, and also from transportation industry representatives
about their concerns.
I now recognize the Ranking Democrat on the Subcommittee,
Mr. DeFazio, for his opening statement.
Mr. DeFazio. Thank you, Mr. Chairman. Mr. Chairman, thank
you for holding this oversight hearing. I am pleased that we
are finally beginning to fully implement the intent of the law
in terms of verifiable background checks for HAZMAT drivers
with Commercial Drivers Licenses.
My concern is that because we are having a full requirement
on newly licensed drivers, that with the renewal period it will
be actually 2010 before we have completed all of these
background checks. I would like to investigate ways that we
could see that we are fully compliant with the law more
promptly.
There are also I think legitimate concerns being raised by
those who will be subjected to this requirement in terms of
access to licensing points or places where they can be
fingerprinted and the cost of that. Certainly, we would like to
look at ways to not make this an onerous burden, knowing that
many of these drivers in the deregulated environment are not
making a tremendous amount of money.
Mr. Chairman, I think that this is a timely hearing and
there are a number of issues before the Committee that are very
important for public safety and the regulation of commerce in a
way that makes sense to maximize safety but also not to be
overly burdensome on the industry. So I look forward to the
testimony.
Mr. Chairman, if I could, I do regret that, not that I am
disinterested in this, but I have an absolutely essential
hearing over in Resources that is very, very pointed toward my
district and I will have to leave for that in the not too
distant future.
Mr. Petri. Thank you.
It is nice to put a name behind a product or a company, or
in this case a truck. I have seen many England trucks over the
years, and a growing number I might add, as a member of the
traveling public. We would like to ask Mr. Daniel England,
Chief Executive Officer of C.R. England Trucking Company, if he
would lead off.
TESTIMONY OF ANNETTE M. SANDBERG, ADMINISTRATOR, FEDERAL MOTOR
CARRIERS SAFETY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION;
TODD J. ZINSER, DEPUTY INSPECTOR GENERAL, DEPARTMENT OF
TRANSPORTATION; TOM BLANK, CHIEF SUPPORT SYSTEMS OFFICER FOR
THE TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF
HOMELAND SECURITY; D.B. SMIT, COMMISSIONER DEPARTMENT OF MOTOR
VEHICLES, COMMONWEALTH OF VIRGINIA; DANIEL E. ENGLAND, CHIEF
EXECUTIVE OFFICER, C.R. ENGLAND, INC.; SCOTT MADAR, ASSISTANT
DIRECTOR OF THE SAFETY AND HEALTH DEPARTMENT, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Mr. England. Mr. Chairman, Ranking Member DeFazio, and also
Mr. Matheson, who I shared a podium with last week and pleased
to see here, and other members of the Committee, thank you for
inviting me to testify today on behalf of American Trucking
Associations on the subject of TSA's implementation of the
background check for drivers with hazardous materials
endorsements.
As was mentioned, my name is Dan England. I am the CEO of
C.R. England, Inc., a family-owned trucking business
headquartered in Salt Lake City, with operations throughout the
U.S. and in Mexico and Canada. We operate approximately 2,600
trucks and have roughly 45 employees and owner-operators. I
have submitted my written testimony for inclusion in the
record.
The background check of drivers required in the Patriot Act
is intended to prevent terrorists from gaining authorized
access to hazardous materials for the purpose of doing harm.
Let me be clear, the trucking industry supports this goal. The
industry supported the name-based checks TSA conducted last
year. However, the increased burdens and unjustified costs
resulting from TSA's implementation of fingerprint-based checks
have had a profound impact on my business and they are about to
have a similar impact on all customers who ship HAZMAT.
The problems we experience today are only bound to get much
worse on May 31st when the fingerprint-based checks apply to
endorsement holders seeking renewals. A name-based background
check should be sufficient to achieve our shared security
objective. Congress did not mandate fingerprint-based checks in
the Patriot Act. When I fly and TSA checks to make sure I am
not a terrorist on a terrorist watch list or on a no-fly list,
nobody takes my fingerprints. They check using my name. TSA
stated that they were satisfied that name-based checks of
drivers addressed the immediate security threats on several
occasions last year.
Therefore, we ask you to direct TSA to continue conducting
name-based checks until a truly coordinated nationwide
transportation-wide security credentialing program is in place
for access to secure areas or HAZMAT that preempts State and
local requirements. Name-based checks can be done with little
or no delay, very little additional expense to the driver, and
no costs or hassles associated with time wasted going to and
from remote fingerprint locations.
About a year and a half ago, I and several other trucking
company owners had the opportunity to meet with TSA officials
to discuss implementation of the fingerprint program. The
trucking industry conveyed three key points: (1) the process
should be uniform nationwide; (2) the process should be
convenient and not unduly expensive for drivers; and (3)
carriers should be notified of the ultimate disposition
regarding their drivers. Unfortunately, I appear here today
dealing with a process that is (1) not uniform; (2)
inconvenient and costly for drivers; and (3) one in which I am
not notified of my drivers' status.
The ramifications are significant. Until February 28, we
required all of our approximately 3,500 drivers to obtain
hazardous materials endorsements. Because of the costs, delays,
and administrative burdens associated with fingerprinting, we
have discontinued this requirement. Driver turnover in my
sector, the truckload sector, is and always has been high. We
hire over 100 drivers per week. Because of the cost to the
driver, for which they see no return, few of our new drivers
apply for the endorsement. In just over three months,
coinciding with the January 31st fingerprint requirement for
new entrants, our endorsed driver count has gone from about
3,500 to 2,600.
Our ability to haul HAZMAT is rapidly diminishing. Soon
shippers of everyday commodities such as soda drink syrup and
chewing gum extract which require endorsements to haul will
find it difficult to move their goods. If they can find a
carrier, it will likely be at increased cost. Let me give you a
real life example. Less than 5 percent of my company's
shipments are HAZMAT.
However, 60 percent of that amount comes from our second
largest customer. Because it is virtually impossible to
dedicate certain endorsed drivers to this customer's account,
or any HAZMAT account for that matter, we required endorsements
for all of our drivers.
In light of the new requirements, we examined the financial
feasibility of continuing to haul HAZMAT freight. Our
additional cost per HAZMAT load came out to be $500. Therefore,
we no longer require all drivers to have endorsements. As our
capacity to haul HAZMAT diminishes, I am not sure how long we
will be able to retain this customer if we cannot haul their
HAZMAT freight.
I have included in my written testimony a number of
problems faced throughout the trucking industry. Here are a few
others I have noticed:
The lack of uniformity forces my company to deal with
different processes in a number of States. For example, Texas,
a non-TSA State, will not recognize a background check from
Utah, a TSA State. Thus requiring the individual to get
fingerprinted again and pay an additional fee. Most States do
not have enough fingerprint locations, and where there are
locations their availability is limited. Utah has one in Salt
Lake City and recently opened a second one off of I-15 that is
only open on Thursday from 2:00 to 6:00 p.m.
We have had drivers who, due to long lines, have had to
come back another day. Delays in getting the results vary from
two weeks to as long as 180 days. Finally, we never receive
notification of whether the driver has been cleared or
rejected. This makes no sense to me from a security standpoint.
At a time when carriers are struggling to attract qualified
drivers, and I want to emphasize that, it is one of the most
serious problems we have, and freight volumes are up, TSA has
imposed upon the industry an unwieldy fingerprint process that
discourages drivers from obtaining hazardous materials
endorsements. The truth is, if somebody intends to do harm with
a load of HAZMAT, that person is more likely to highjack a load
than take the time to learn the skills to safely transport
HAZMAT and obtain an endorsement.
TSA also needs to give some serious thought to the scope of
commodities they are targeting. A vast majority of commodities
requiring placarding, like soda drink syrup, paint, or nail
polish, are simply not going to be used by terrorists. In the
meantime we should continue with the one solution that enhances
security in an efficient and cost-effective manner, and that is
name-based checks.
Mr. Chairman, thank you again for giving me the opportunity
to voice my industry's concerns about this background check
program.
Mr. Petri. Thank you. Thank you for your testimony. I
apologize for not recognizing the Representative from Utah, a
member of our Committee, Mr. Matheson for any comments. Did you
want to say anything?
Mr. Matheson. Nothing at this time, Mr. Chairman.
Mr. Petri. The next witness is Ms. Annette Sandberg, the
Administrator of the Federal Motor Carriers Safety
Administration.
Ms. Sandberg. Thank you, sir. Chairman Petri, Ranking
Member DeFazio, and members of the Subcommittee, thank you for
inviting me to discuss the hazardous materials endorsement
background checks. I am pleased to appear before you to
describe the Federal Motor Carrier Safety Administration's role
in enforcing these background checks and how we work with our
partners at the Transportation Security Administration to
ensure the safe and secure transportation of hazardous
materials across our Nation's highways.
The Commercial Vehicle Safety Act of 1986 established the
Commercial Drivers License program and the CDL Information
System, known as CDLIS. The goal of the CDL program is to
ensure that persons who operate commercial motor vehicles have
only one driver's license at a time.
CDLIS enables States to exchange commercial driver
licensing information. It includes the databases of 51
licensing jurisdictions in the CDLIS Central Site. FNCSA's role
in the CDL program is to verify the CDL program is uniformly
and properly administered by all 51 jurisdictions, including
enforcing State compliance with TSA's hazardous materials
security threat assessments.
To obtain a CDL, applicants must complete an application
form verifying that they are medically qualified and not
subject to a disqualification in another State. Additionally,
the applicant must pass a general knowledge and applicable
endorsement knowledge test and a skills test in a
representative commercial motor vehicle. Upon surrender of a
current non-CDL license, the applicant is issued a CDL with
applicable class and endorsements.
Drivers wishing to transport hazardous materials must
obtain a hazardous materials endorsement to the CDL. As part of
the licensing process, applicants are required to
satisfactorily pass a knowledge test related to hazardous
materials transportation. The second part of the HM endorsement
process requires the drivers to undergo a criminal background
check, otherwise known as a security threat assessment.
TSA is responsible for conducting all security threat
assessments. To obtain an HM endorsement, the driver submits to
fingerprinting by a State or TSA agent and provides proof of
citizenship or immigration status. Fingerprints are sent to the
FBI for a criminal background, while TSA checks information
from national and international databases. TSA provides the
results to the State DMV which issues or denies the
endorsement.
If an applicant is deemed to be a security risk and
therefore denied an HM endorsement, the applicant may appeal
the risk determination to TSA. If overturned on appeal, the
applicant may then be issued a CDL with an HM endorsement.
Our agency has a significant role to play in promoting and
verifying State compliance with TSA's hazardous materials
security threat assessment requirements. FMCSA verifies State
compliance in two ways. First, we conduct a regular CDL State
compliance review every three years. Second, we conduct a
special CDL compliance review any time the agency receives a
complaint that a State is not following proper procedures.
Our agency conducts compliance reviews on the CDL program
not only to verify the State's compliance with the TSA
hazardous materials security threat assessment, but to promote
nationwide compliance and uniformity with Part 384 of the
Federal Motor Carriers Safety Regulations. The CR program is a
comprehensive on-site examination of the State's CDL program.
During the review, our agency works with the States to
improve highway safety and reduce CDL fraud by assessing the
effectiveness of the State's CDL program and compliance with
the 29 requirements listed in Part 384. FMCSA identifies legal,
technical, operational, and administrative deficiencies in
State CDL programs, establishes a mechanism for monitoring
States' progress in correcting serious program deficiencies or
areas of non-compliance, and assesses a State's vulnerability
to CDL fraud.
FMCSA averages about 15 CDL compliance reviews a year. In
2004 and 2005, our agency made improvements to its CDL program,
including developing on-site review training for States,
incorporating Motor Carrier Safety Improvement Act
implementation and CDL fraud vulnerabilities assessments into
the process, and establish a CDL sanctioning process for States
found to be in substantial non-compliance.
States found to be out of compliance with any of the CDL
requirements will have 5 percent of certain Federal-aid highway
funds withheld the first year and 10 percent the second year
and subsequent years of non-compliance. Our agency may
decertify a State's CDL program, prohibiting the State from
issuing Commercial Drivers Licenses if the deficiency that
caused the substantial non-compliance affects a substantial
number of CDL applicants or drivers.
FMCSA has modified the CR process to ensure thorough and
proper oversight, that the State one, has the statutory
authority to enforce the TSA threat assessment requirements;
and two, is following proper procedures in issuing a Commercial
Driver License with hazardous materials endorsement. Since TSA
implemented the security threat assessment on January 31 for
drivers obtaining an HM endorsement for the first time, three
compliance reviews with hazardous materials components have
been conducted. These were conducted in the District of
Columbia, Tennessee, and Idaho. No substantial non-compliance
findings regarding the hazardous materials endorsement process
were found in these reviews.
Mr. Chairman, TSA has the lead in developing and
implementing the process that States must follow to conduct HM
security threat assessments. Our agency reviews State
compliance with the TSA requirements and verifies all States
have a solid and compliant CDL program. By verifying regulatory
compliance, our agency's activities are a significant
contribution to increased safety and security for hazardous
materials transport.
I look for to working and continuing this partnership as we
move forward to implement this very important program. Our
agency will continue to work with TSA to iron out any
differences and inefficiencies to ensure that the program works
seamlessly across the agency and departmental lines, keeps
unsafe and unsecured drivers off our Nation's highways, and
provide for the adequate State compliance enforcement of the
CDL program. Accomplishing these goals will allow us to
maintain the safety and security of America's communities.
Thank you, and I would be happy to answer questions after the
panel is finished.
Mr. Petri. Thank you. The next witness is Mr. Todd Zinser,
the Deputy Inspector General of the Department of
Transportation. And as is the case with the other witnesses,
your full statement will be made a part of the record and we
invite you to summarize it in approximately five minutes.
Mr. Zinser. Thank you, Mr. Chairman. Mr. Chairman, Mr.
DeFazio, members of the Subcommittee, on behalf of Inspector
General Mead, we appreciate the opportunity to testify today on
HAZMAT endorsement background checks.
A critical post-September 11th issue is the interdependency
among the Department of Transportation and other Federal
agencies to carry out programs that have both safety and
security elements. For the DOT, this intersection of safety and
security is most pronounced in the area of hazardous materials
oversight and enforcement. We commend the Subcommittee for
holding this hearing and keeping this issue at the forefront.
As we have been reporting since September 11th, the
imperative for the Department is to effectively integrate new
security measures into our existing safety regimens in ways
that promote stronger security without degrading transportation
safety and efficiency. In our opinion, the new background
records check will, if properly implemented, provide an
additional factor of both safety and security because it will
help ensure that we know that the drivers are (1) who they say
they are, (2) are legally present in the United States, and (3)
can be trusted with the public's safety and security when
transporting HAZMAT.
Processing background records checks is not new to TSA.
When TSA was still with the Department of Transportation, it
established a similar program for airport workers. And since
2002, over 1.6 million employees working at the Nation's 400-
plus commercial airports have had a criminal history records
check completed. While initially a concern, the issue of
timeliness turned out to be a non-factor. In that case, the
American Association of Airport Executives served as a
clearinghouse to facilitate the process of fingerprints for the
airports and airlines.
Since TSA is no longer part of the Department, we do not
have first-hand knowledge of how TSA is implementing the
program or whether the experience at the airports provides any
lessons to the HAZMAT endorsement rule. But based on our
observations at airports and airlines, strong cooperation among
all stakeholders is absolutely critical to make the process
efficient and effective.
TSA is responsible for the background checks, but FMCSA
shares responsibility with TSA at the back end of the process
by ensuring the States comply with TSA's rule. And as
Administrator Sandberg mentioned, if the States do not comply,
FMCSA can withhold Federal funds or take away a State's
authority to issue CDLs. So DOT remains a critical link in the
safety and security chain, along with the States and the
trucking industry.
We have done a substantial amount of audit work in the
past, initiated at the request of this Subcommittee, to assess
and improve the Commercial Drivers License program. This
program, established by Congress less than 20 years ago, now
has 11 million CDL holders on record and is the centerpiece of
the Department's Motor Carrier Safety Program. One concern we
have reported on and continue to stress to the Department is
the program's vulnerability to fraud, and FMCSA is taking steps
with the States to strengthen the program against fraud.
After September 11th, several CDL fraud cases gained the
attention of other law enforcement agencies because foreign
national were involved. Currently, for example, two of our 28
CDL fraud investigations involve the Joint Terrorism Task
Force, but to date none of our investigations have found
terrorist activities.
In closing, Mr. Chairman, we would suggest a few areas for
FMCSA to watch. Each of these suggestions is geared toward
making sure we effectively integrate the background data into
the CDL process.
First, computer system tests will be needed to ensure that
information is properly collected and shared among TSA, FMCSA,
and the States. For example, is the HAZMAT endorsement data
being integrated into the existing Commercial Drivers License
Information System? We have concerns that they are not taking
advantage of this existing system.
Second, routine monitoring of data should also be used, as
we have suggested in other parts of the CDL program, to spot
problems that may develop. For example, are there noticeable
gaps in any of the data?
Third, new compliance review steps and additional expertise
may be needed to assist States with compliance with the new TSA
rule. Has FMCSA retooled its compliance review steps to cover
this requirement?
Finally, Mr. Chairman, FMCSA's previous experience with
conducting reviews of State CDL programs and the fact that they
regularly visit States to conduct these reviews puts FMCSA in
the best position to identify any inconsistencies among the
States concerning HAZMAT endorsement checks and how to fix
them.
This concludes our testimony. We would be glad to answer
any questions.
Mr. Petri. Thank you. Mr. Tom Blank, Chief Support Systems
Officer of the Transportation Security Administration of the
Department of Homeland Security. Welcome.
Mr. Blank. Good afternoon, Mr. Chairman, Representative
DeFazio, and other members of the Subcommittee. It is my
pleasure to be here with you today to speak about the
Department's implementation of the HAZMAT threat assessment
program. We see this as an important step in countering the
very real threat that terrorists could pose in securing
licenses to operate trucks carrying hazardous materials.
There is much to be proud of with the implementation of the
program. The Department has thus far conducted name-based
security threat assessments on all 2.7 million HAZMAT drivers
that hold Commercial Drivers Licenses. In the three months
since the Department began fingerprint-based checks, we have
had over 30,000 enrollments. We have cleared more than 25,000
of those, and 33 States and the District of Columbia
participate with us as agents through which TSA collects and
transmits fingerprint and driver applications. We are
processing currently 84 percent of what we receive within five
days relative to the background check.
Right now, we have 123 enrollment sites, including local
law enforcement offices, mobile units, truck stops, and other
sites that meet certain minimum standards required by TSA, with
plans to put at least 24 additional sites in place and open and
operating by May 31 of 2005.
TSA actively engages daily with the State Departments of
Motor Vehicles, industry associations, Members of Congress, and
other stakeholders to develop enhanced enrollment capabilities.
The agency does propose to submit to the Subcommittee the
roster of all of the sites that are open and operating as of
May 31. And I would add that for the 33 States and the District
of Columbia that are participating in the TSA agent program,
that the States have approved the locations where we have put
these sites.
TSA is employing a phased approach to implement the
program, which began, as has been discussed, with name-based
security threat assessments of all HAZMAT drivers, which we
completed in the summer of 2004. This critical effort required
a terrorist-focused name check of 2.7 million hazardous
material drivers and resulted in the referral of 100
individuals to law enforcement agencies.
The second phase began January 31, 2005, which includes a
fingerprint-based Federal Bureau of Investigation criminal
history records check, an intelligence related check, and an
immigration status verification. The third phase, which we are
on track to begin at the end of this month, will extend the
fingerprint-based checks to HAZMAT drivers seeking to renew or
transfer the hazardous material endorsement.
Now, all HAZMAT drivers seeking to obtain a new HME or to
renew or transfer must satisfy the requirements of the TSA rule
by first obtaining a No Security Threat Determination from TSA.
Here is how this works. The driver submits biographical
information and fingerprints to TSA through a TSA contractor in
agent States or through the DMV or the DMV's contractors in
non-agent States. We conduct a threat assessment, relay the
determination to the applicant and the State DMV.
If an applicant meets TSA's security threat assessment
standards, the State may issue the HME. If not, the State must
deny the hazardous materials endorsement. Under certain
circumstances, an applicant may appeal the initial TSA
determination. In most cases, drivers who are unsuccessful in
appealing the initial determination or do not contest it may
apply for a waiver.
The threat assessment comprises two distinct processes--an
initial adjudication process in which TSA assesses the
applicant's criminal history, citizenship status, and mental
history, and vets the applicant against relevant intelligence
databases, and a post-adjudication appeals and waiver process
that is consistent with the framework available to
transportation security cardholders under the Maritime
Transportation Security Act.
TSA has established a comprehensive program and it is
working. We make the security threat determinations quickly and
efficiently. Of all the applications submitted so far, more
than 25,000 have been cleared to hold an HME, and TSA's goal is
to complete the adjudication process within 30 days. We have
already exceeded that by processing 85 percent of these
applications within 5 days after receiving all information
necessary to consider the threat assessment. Most of the
appeals we are able to resolve thus far in 1 to 5 days. And we
do have procedures in place to ensure that drivers are covered
by their HMEs during the adjudication process.
We are not without challenges. We are working with our
colleagues at AAMVA whose CDLIS system would enable us to
collect and electronically submit the applications from non-
agent States. The Department is also carefully assessing
interoperability to the HAZMAT program with other vetting
credentialing programs, including TWIC, to ensure that such
programs are complementary as we work towards convergence of
all credentialing programs.
We are also leveraging processes in our sister agencies
like Customs and Border Protection and so forth. We are also
working to improve the situation with Mexican and Canadian
drivers seeking to transport hazardous materials into the U.S.
Thank you. I would be happy to answer questions at the
appropriate time.
Mr. Petri. Thank you. Mr. D.B. Smit, Commissioner,
Department of Motor Vehicles, Commonwealth of Virginia. Thank
you very much for coming over here to the District today to be
with us.
Mr. Smit. Thank you, Mr. Chairman, and thank you to the
distinguished members of the Subcommittee. I am D.B. Smit. I am
the Commissioner of the Department of Motor Vehicles in
Virginia, and I also chair the American Association of Motor
Vehicle Administrators Government Affairs Committee. I want to
thank you again for the opportunity to testify on behalf of
AAMVA.
AAMVA is a State-based, non-profit educational association
representing motor vehicle agency administrators and senior law
enforcement officials in the U.S. and Canada. Our members are
recognized experts who administer the laws governing motor
vehicle operation, driver credentialing, and highway safety
enforcement.
AAMVA plays a significant role in the development and
supervision of both the Commercial Driver's License and motor
carrier safety programs. Today I will share AAMVA's historical
working relationship with TSA, I will extol some of the AAMVA
and TSA's collaborative accomplishments, and walk through our
operational and implementation concerns, and recommend some
solutions for programmatic success.
The USA Patriot Act required background checks on CDL
holders with HAZMAT endorsements. AAMVA and the States have
been working diligently to comply with these provisions. In
October of 2002, AAMVA began working with FMCSA, this is the
agency originally tasked with implementing HAZMAT endorsement
background checks. Just as that relationship was formalized and
rules and procedures were established the program was
transferred to TSA, first as an agency under the US DOT and
then later under the Department of Homeland Security.
To facilitate communication among the States, AAMVA
commissioned a working group in July of 2003, which also
included representatives from TSA and the FBI. Since then,
AAMVA and the States have committed countless hours and untold
dollars in pursuit of implementing HAZMAT provisions. In
addition, the AAMVA leadership has met or attempted to meet
with all the TSA chiefs to build relationships and address
State implementation concerns and deadlines.
These meetings have had only short-term effect due to the
high rate of employee turnover and competing demand for
resources within TSA. In the two years since the agency has
overseen this program, AAMVA has worked with five different TSA
project managers. Communications break down regularly. For
example, TSA made a decision to change individual driver's
license numbers that resulted in States inability to match
background checks with HAZMAT endorsement applications. This
example also illustrates another issue detrimental to the
program. Respectfully, TSA does not fully understand DMV
business processes or who we are or what we do.
In addition, some States are worried about the turnaround
time for receiving threat assessments from TSA. One instance,
Florida has submitted 2,179 applications since January of 2005
and has only received 735 responses. If this continues, we
believe it will bring commerce to a grinding halt. In States
such as Alaska and Minnesota, which elected to use a TSA agent
for fingerprinting, there are an insufficient number of offices
to handle the assessment requests. Many offices are
inaccessible and often are in remote locations.
States use the Commercial Driver's License Information
System, or CDLIS, to manage the Commercial Driver's License
program. Instead of using this already operational secure and
time-tested system, TSA plans to use a stand alone web-based
approach to receive application data and send threat
assessments to the States. This approach will not integrate
with State systems and it puts a heavy burden on the States and
will not stand the test of time.
As deadlines approach and you move forward in your analysis
of the situation, I urge you to help commerce continue
unimpeded by calling on TSA to do the following:
Through the highway reauthorization bill, commit to using
CDLIS versus the newly created and expensive stand alone
approach.
Second, develop a realistic project time line.
Third, delay the requirement for fingerprint-based
background checks for renewal applicants until the CDLIS-based
solution is ready, since the FBI has already conducted
background checks on the current 2.7 million HAZMAT endorsement
holders.
Fourth, work more closely and cooperatively with AAMVA
working groups and the State experts.
Fifth, engage in a faster and more straightforward
decision-making process.
And finally, share threat assessment fees with DMVs to
offset State costs.
Mr. Chairman, AAMVA and our members are committed to
ensuring the security of our homeland. I want to thank you once
again for the opportunity to testify, and I welcome your
comments and your questions. Thank you.
Mr. Petri. Thank you. We appreciate your association and
you and the work you put in to making a thoughtful and
constructive series of recommendations.
The final witness, Mr. Scott Madar is the Assistant
Director of the Safety and Health Department of the
International Brotherhood of Teamsters. Sir, welcome.
Mr. Madar. Thank you. 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 our 1.4 million
members regarding such an important issue. The Teamsters Union
represents hundreds of thousands of drivers who make their
living driving on our Nation's road, oftentimes carrying
hazardous materials.
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 need for a safe
and secure industry with the rights of the drivers to hold good
jobs.
While the Teamsters appreciate the attempts of the TSA to
balance security with the rights of drivers, the Union
continues to believe that the process could be improved to root
out true risks, to provide a level of fairness and due process
for affected workers, to ensure privacy rights, to provide for
timely processing of applications and threat assessments, and
to ensure that workers are not unfairly kept from their chosen
profession. I will briefly highlight some of our
recommendations.
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 a professional truck driver to have such
an endorsement since the vast majority of 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 as a total loss of the CDL
for a driver. For this reason it is imperative that the process
be made as fair as possible.
With regard to disqualifying offenses, 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 act, and the TSA has offered
no evidence to the contrary.
Briefly on the 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. 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 central to both
employee rights and national security.
With regard to time limits and application delays, the
Teamsters Union is concerned that the time limits stipulated in
the rule are too short and urge an increase in the notification
timeline to at least 90 days. The current 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.
While we cannot speak directly to the difficulties faced by
every driver during this initial phase-in of the background
checks, we do know that many drivers seeking new HMEs are being
told that there are long processing delays, lasting in some
cases well over seven weeks.
Additionally, some drivers who are seeking renewals and are
not currently subject to background check requirements are
incorrectly being forced by States to submit fingerprints such
that a background check can be performed. At this time, it is
impossible to characterize the full extent of the problems and
delays faced by applicants seeking renewals; however, it is
only a matter of weeks before these problems will likely
manifest themselves, as the May 31st deadline fast approaches.
Briefly on the cost to drivers. As we have stated many
times, the Teamsters Union does not believe that the drivers
should have to bear the cost 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.
In addition, there are costs that will be associated with
States that choose to get involved in this process by
performing the information collection and transmission
functions themselves. Currently, drivers in different States
are being charged different amounts to obtain their HME, up to
$250 in the State of Texas.
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 in 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.
Mr. Petri. Thank you. We thank all the witnesses for their
testimony. We will start the questioning with a member of our
panel on this side of the hearing who has some experience
because he has a Commercial Drivers License and has for many
years, Mr. Davis from Tennessee.
Mr. Davis of Tennessee. Mr. Chairman, thank you very much,
and Ranking Member Oberstar, it is good to see you here today.
I do not really have any questions. But a comment I do want to
make is that it is good to see today the regulators and those
who are advocates for the trucking industry be here today to
comment on the new regulations that perhaps could bring to bear
some difficult times for those who drive trucks and who deliver
products that we use in our homes and our business and help
keep America's economy going.
In 1965, while in college at Tennessee Tech I applied for
and was able to obtain what at that time was called a Special
Chauffeurs License, which entitled you to drive a bus, which I
drove for a while, you could drive a taxi, which I never drove,
but you could also drive an 18-wheeler or a 10-wheeler or 6-
wheeler, whatever at that particular time. And then I went into
the construction business in the late 1970s, and obviously the
Special Chauffeurs License still gave me the right to drive
whatever vehicle I chose.
Well, thankfully, in the late 1980s legislation was passed
that basically said if you are going to drive an 18-wheeler, if
you are going to be on the road with a large truck of that
size, you need to at least have experience and also there are
certain testing procedures that you should have to go through.
So in the early 1990s when my chauffeurs license ended, I
was grandfathered in to drive the big truck, which I had been
doing for several years anyway in business. And then I did take
the test which was the combination as well as the weight up to
80,000 pounds at that time in Tennessee.
I think there were three different tests I took.
Fortunately, I passed those and now have a CDL which I use in
my construction company. I do not do much work anymore, but I
still have that and occasionally I will move a piece of
equipment from one place to another on the farm.
But I realize, I think as most on this Committee, that
America moves today by truck. Certainly, we talk about rail and
we talk about freight at some of our ports that we have and
some of the inland rivers, the Cumberland River, for instance,
in my district, the Tennessee River in my district, that
provide some ports for goods and services travel.
But most of everything that comes to the district I
represent comes by truck. So as we look at regulations, I sure
hope that we have in mind that it is important that this
industry continues to be there which has such a positive impact
on our economy in America.
When we built the Interstate System we were able to start a
new process called ``just in time manufacturing.'' Our trucks
deliver those parts to the assembly plants in Smyrna,
Tennessee, or in Spring Hill to Saturn in my district. So as we
look at regulations with hazardous materials and these new
regulations, I hope that we do not bring to bear undue
regulations that will shut down an industry that has moved
America.
I think today as we all left the Capitol and our offices in
the House Office Buildings and perhaps the Senate as well, we
are well aware of how terrorist activity can have a devastating
impact on this country, as we observed September 11th, and then
today we renewed in our minds the potential of what we felt,
most of us who were here, could happen again. That can also
happen with a big truck with hazardous materials explosives in
it.
So I hope that the advocates, the drivers, the trucking
industry, as well as the regulators realize that this is
something that collectively working together we will be able to
have a safe America and also an America that continues to have
a great economy. I thank you for being here.
Mr. Petri. Thank you. Mr. Oberstar.
Mr. Oberstar. Chairman, thank you for the courtesy of
giving me an opportunity to respond. I would ask unanimous
consent at this time to include my statement in the record.
Mr. Petri. Yes, sir. Without objection, so ordered.
Mr. Oberstar. And I would prefer that you recognize other
members who have been here earlier. I was detained on committee
business and Minnesota district business, constituents coming
in to visit. So I defer to those who were here on time.
Mr. Petri. Thank you. I maybe would ask a couple of
questions really of all the panel, but particularly Mr. Smit
and Mr. England. It is my understanding that we have had a
licensing and regulatory regime for hazardous materials in the
United States for many years and we have had special procedures
in place involving the FBI and other agencies for things like
explosives and particularly dangerous materials. Now we have
got this whole new comprehensive approach. This is costing
State governments and it is costing the private industry and
ultimately consumers a very great deal and it has considerable
potential for disruption of the economy.
Does it really make sense? Are we adopting the right
approach of looking at every driver and sort of assuming that
they are a terrorist until we can establish that they are not?
Or does it make more sense to start at the other end and look
at terrorists and see if they are likely to use a truck
somewhere? I am just curious about how we will know when we
succeed in this whole effort.
I think Mr. Zinser said that they have not found any
evidence of any terrorist activity whatsoever so far. Now I do
not know if that means there has not been any, or if they have
been deterred by this regulatory regime, or if, in fact, there
is nothing to find because people, if they do want to do a
terrorist thing, are not going to go in and apply for a license
and go through a background check, but they are going to steal
a truck or do some underground illegal activity and all of this
legal stuff is going to be beside the point.
I do not know if you would care to comment on this, either
one of you. We want it to be as safe as possible but we do not
really want to use terrorism as an excuse to hire a lot more
bureaucrats if it is not going to be effective. How will we
know when we have succeeded, is my bottom line, and at what
cost in this whole thing?
Mr. England. Well I have a comment on that. Certainly in
this post-9-11 era, I think we would certainly be irresponsible
if we were not examining our modes of transportation to make
sure that they could not be used in any sort of terrorist
activity. Unfortunately, in my view, in our zeal to do that, we
have made some serious mistakes in the way in which we have
proceeded, mistakes to the degree that our economy is being
harmed unnecessarily.
If we had continued, for instance, with simply the name-
based background check, which involved much less expense, much
less administrative work, and delay, and so forth, we could
accomplish the same thing without this tremendous escalation in
cost, which, by the way, is having the tendency right now to
push drivers away from hauling HAZMAT freight.
Unlike Mr. Madar, we are a truckload carrier and we can
have some drivers go through their whole career and may not
haul a HAZMAT load. Only 5 percent of the freight that we haul
is HAZMAT. But because of the cost and the hassle factor
involved in getting this license, we are finding now that
drivers have a tendency to want to avoid carriers that haul
HAZMAT freight.
And so I and the circles that I associate with of other
carriers and so forth, we are finding that many carriers
situated similar to us where only a small percentage of our
businesses involve HAZMAT, many of these carriers are
discontinuing the hauling of HAZMAT freight. And in our case,
it involves giving up some very profitable freight.
But I think the long term consequence of this is that those
in the economy, those shippers, those companies that
manufacture and ship hazardous materials are going to end up
paying a lot more to get their goods shipped because fewer
people are going to ship it. And, of course, that cost is
ultimately going to be passed along to the consumer.
Additionally, I would say that under the umbrella of HAZMAT
there are a lot of goods. I have mentioned some of them. I do
not want to mention the names of these customers but you can
probably guess who they are. The major soft drink manufacturers
in this Nation are some of our largest customers. Much of their
product we have to ship with a placard. I doubt if those are
the sorts of goods that a terrorist wants to get his hands on
to use in connection with some sort of terrorist activity.
So my plea would simply be let us identify those goods that
would pose a legitimate terrorist threat, then let us go and
figure out ways to control or regulate the manufacture, the
storage, and the transportation of those goods. Let us not
paint the broad stroke and cover so many different kinds of
goods that it costs a tremendous amount and ultimately drives
many of us away from hauling HAZMAT.
Mr. Petri. So you are saying we have taken this category
HAZMAT, which has to do with materials that could be
environmentally hazardous or a hundred and one different
dangers, but they might not be a terrorist type threat.
Mr. England. Exactly.
Mr. Petri. And yet we are applying this whole regulatory
scheme to everything without rethinking what we are actually
looking at.
Mr. England. Yes. And as an addendum to that, I think the
rule is that if you ship under 1,000 pounds of many of these
HAZMAT materials on a shipment you do not have to placard. What
we find on many of our customers, they will tender a shipment
that is, say, 1,000 or 2,000 pounds of a certain volume of
commodity, maybe a corrosive or a flammable or something like
that.
Again, I doubt if volumes of that kind of anything are
really going to pose a threat. So in addition to looking at the
type of the commodity, look at the volume that is shipped, and
then let us come up with some reasonable standards.
Mr. Petri. It sounds like a good idea. Define your job so
it is doable, focused, and cost-effective, and then get on with
it. We have not done the first stages. We are engaging in a
broad brush regulatory regime as the first stage rather than
deciding what the nature of the problem is as our first stage.
Mr. England. Exactly.
Mr. Petri. Other comments? Yes, sir, Mr. Blank?
Mr. Blank. If I might, Mr. Chairman. I want to paint a
little context for a moment if I can. First of all, let me just
read into the record the mission statement of the
Transportation Security Administration. It says, ``TSA protects
the Nation's transportation systems to ensure freedom of
movement for people and commerce.'' We think we are doing that
with this program.
I think the first thing we have to acknowledge is TSA is
the implementing agency but we are by no means a lone actor. We
are partners with DOT, and we are partners with the industry,
we are partners with the unions, and we are partners with
AAMVA. Let us remember that we are implementing this program
according to provisions of the USA PATRIOT Act, which requires
us to run HAZMAT background checks using relevant criminal
history databases.
We cannot do that without a fingerprint-based check. We
cannot comply with the law. And if the law were changed,
perhaps we could give more consideration to the plea for name-
based checks only. But it is our view that we would not be in
compliance with the provisions of the law were we to skip doing
the fingerprint-based checks.
Now I am a little concerned that there is some impression
being left here that we have not been sensitive to unions,
industry, and public sector State-level concerns. I think that
we have a track record that would demonstrate otherwise. First
of all, we have amended and eased up on the disqualifying
crimes. Of particular concern to the industry was a
disqualifying crime of possession of drugs. We eliminated that.
That eased and kept a lot of people who otherwise had reformed
themselves working and productive.
We have partnered with the American Trucking Association to
get information out. We have been visible on the schedule. We
have found provisions to be able to extend, where a concern
comes up, to extend a CDL HME in place for 90 additional days.
We have worked with States to prevent requiring an additional
check on transfers in many instances. The industry wanted us to
use law enforcement sites to take prints and transmit. We have
taken that in tow and do that. We allow drivers with a state-
issued CDL learner's permit to apply for the background checks
so there is not a delay for somebody that is a student. We put
a requirement in place that States must notify drivers 60 days
in advance of when a renewal is in place to give enough time.
We have provided for interoperability in the 33 States and
the District of Columbia, which is to say someone who has to do
the fingerprinting and make a submission, they can do it at any
site that is a TSA agent-operated site in any of those 33
States and the District of Columbia. That is a pretty high
degree of flexibility in my view for somebody that has to come
into compliance with this.
We will continue to value AAMVA as a partner and look at
how we can potentially use the CDLIS system. But there are
different and better technologies available to us than what
CDLIS operates. And I believe that there were opportunities
even before 9-11 to improve the information technology in
CDLIS. We are using web-based digital methods of transmission
for these fingerprints that is creating a high degree of
efficiency, allowing us a 2 percent error rate, and a very fast
turnaround time. We just cannot do that with the CDLIS
technology as it currently exists.
Mr. Petri. I want to give any others who want to respond a
chance. But could you comment a bit on the point that there is
a lot of material that is labelled as hazardous which really is
not a threat in any way if it falls into the hands of
terrorist. It is a threat if it falls into the hands of
irresponsible users to the environment or something else, but
it is not like TNT or some explosive or some dangerous gas.
Are your hands tied similarly by the laws that all
hazardous materials apply to this, or could you build on the
special rules that do exist for things like TNT and some other
highly dangerous things that have all kinds of checks
throughout the distribution and manufacturing system? There are
hundreds of ways to catch someone who wants to get hold of that
to do mischief.
Mr. Blank. I think that is a good point. I think that is
something we would continue to look at with FMCSA and other
parts of DOT who are the lead in the hazardous materials
regulations. So I think that is something we can look at and it
may make good sense to do so.
Mr. Petri. It certainly would keep the commerce flowing and
perhaps 95 percent of things that are labelled as hazardous but
were done in other context at another time and for other
reasons. That would certainly save us a lot of grief if we
could make sure that we are defining the problem and not
wasting resources because we have too broadly defined it.
Any other comments? Yes, sir?
Mr. Smit. Mr. Chairman, I would defer to TSA on whether or
not we need to go to these lengths for security. We certainly
support security in Virginia and we would want to do that. And
I would defer to the trucking industry and the TSA about what
commodities we should be concerned with. But I would like to
get to the area of cost if I can, because that was part of your
question earlier.
Our main concern with AAMVA, with the membership across the
country is the amount of cost that would be resident with the
States, even those States where TSA agents are essentially
taking care of the program, because we still have costs related
to interface, adjudication, and normal customer service costs
as well. So I did not want that to escape mention because we
are concerned about the pressure on State budgets and that type
of thing.
Not to quarrel with Mr. Blank, but to talk about the CDLIS
technology, I think the important thing here, we would like to
use CDLIS. States are used to it. It would be easier for us to
conform with that. But let us not miss the real question we
have, and that is the timeliness of decision-making. We are
scheduled to go online July 31st. Right now, we do not know
what system we are going to be using to transmit data to TSA.
That is really more a major concern than whether we use CDLIS
or not. So, again, it is the whole area of cost, it is
communication, it is working together, making decisions and
moving on. Those are our main concerns.
Mr. Zinser. Mr. Chairman, could I just say a few words. I
think one of the problems you have is you really do not know
what the problem is and where the breakdown is. You had Mr.
Smit testifying that there is a big gap between the
applications that are submitted and the turnaround time; I do
not remember the exact numbers. And Tom is saying that they are
turning things around in no more than 30 days. So you have a
disconnect there and you do not know where the breakdown is. I
guess if we still have jurisdiction to provide oversight to
TSA, that is an area that we would look at is where exactly is
the problem.
When I mentioned the checks that were done at the airports,
initially there was some problems at the airports. I think in
some cases it was taking like 40 days to get a fingerprint
check done. Well, they fixed that and the fingerprint check,
for the most part, does not appear to be a big problem in the
airport environment. And I do not know enough about TSA's
implementation here to know exactly what the problem is.
So in terms of whether we are doing too much and whether it
costs too much, I think you need to do some analysis first to
find out exactly where the bottlenecks are.
Mr. Petri. Yes, sir?
Mr. Blank. I can address at least certain aspects of that.
In the early going after January 31st, we did not have a
digitalized automated system in place to receive applications
from the non-TSA agent states so we were dealing with paper
applications that were being sent to us, and then fingerprints
that were being taken. And we had a situation develop where we
might have a hundred or a couple of hundred applications and we
were unable to match with fingerprint results from the FBI due
to errors and inconsistencies int he information submitted by
the non-TSA agent states, and we are getting frustrated
customers, whether they be drivers or whether they be State
agencies, because we have not been able to match up
fingerprints, or there was an error in fingerprints because of
the method of enrolling and transmitting them and the use of
paper products.
What we have done is say that is on us to provide better
customer service. We have moved ahead and now we have liaison
officers for each State in place who are going to look at
that--I have these applications but I do not have fingerprints,
or I have an error. That is not acceptable. We have got to
begin to go back to the States and deal with that backlog, and
we have worked that backlog down. We think that why we are
optimistic going forward is because we are looking at a more
digitalized, less paper intensive method of collection and
transmission to the affected parties.
I should say, to answer the gentleman from AAMVA, where the
States are conducting this, it was by their own choice. They
had the option of taking the TSA agent to do this or using
their own existing infrastructure, which they may want to
leverage for whatever reason, have control over the setting of
fees in their particular States. So they had a choice at the
State level and could deal with the issues related to cost and
so forth on their own without urging one way or the other from
the Federal Government.
Mr. England. If I may make one more comment. I have no
doubt about the diligence of Mr. Blank and his agency in going
after the mandates that they have been given. Perhaps some of
those mandates were too broad, I do not know. However, he is no
responsible to move the freight around this country every day,
we are.
And there are significant obstacles that are being thrown
up because of what I consider to be poor planning on TSA's
part. Another one in particular, having a nationwide uniform
system that we could deal with, where we knew what we were
going to have to deal with in every State and that we had
uniformity in every State, then that would make it much easier
to deal with.
Right now, we get a driver who gets a HAZMAT endorsement in
the State of Utah, he moves to some other State, a non-TSA
State, in most cases so far those other States do not recognize
that endorsement. The fees in the States are different.
We met with TSA early on and recommended and admonished
just how critical it was that we have some sort of uniformity.
Our company operates in all 48 contiguous States. And as we
have to deal with this challenge of trying to get our drivers
endorsed in all States, it has become a nightmare. For that
reason, we are exiting the HAZMAT business, as are many of our
fellow carriers. Mark my words, those people who are going to
be shipping HAZMAT are going to be paying a lot more to get
their goods hauled, which means consumers are going to be
paying more for those goods.
Mr. Petri. So the price of Coke is going to go up.
Mr. England. I did not say Coke, you did.
Mr. Petri. Whatever. Because that is a hazardous material
when it is shipped in concentrate.
Mr. England. That is right. That is exactly right.
Mr. Petri. Mr. DeFazio?
Mr. DeFazio. Thank you, Mr. Chairman. I would agree with
Mr. England's observation that it seems absurd that this
somehow devolved to the States and Territories and that they
can do it in one of many different ways--they can do it with
inked fingerprints and just put it in the mail, or they can
whatever. I guess I would just point to the model that we have
established in aviation in working with the industry, where it
is an average of four hours to clear a person.
I do not know the cost of the remote sensing devices which
transmit the data, but I do not think they are all that
tremendously expensive, and would suggest that the Federal
Government, since there is a Federal interest, might pay for
the capitalization costs and then contract with someone to
operate the system. In the case of aviation, it is the AAAE,
which would be equivalent to the ATA.
I am just curious why we decided--this is a Federal
certification, Federal background check for national security
purposes--why we devolved that to the States in this sort of
diffuse haphazard manner. Could we not go to a system like is
being used in aviation which works very well. I have got to
disagree with Mr. England, I do not think a name-check is
meaningful. You can be anybody and have a good name, you could
have assumed a name. That does not tell us anything. It just
tells us that name is not in the criminal database. It does not
tell you that they are that person. So I want to see
fingerprints. But the way in which it is being done seems
absurd.
Mr. Blank. We went in the direction that we went because we
did not think it appropriate to preempt the States rights with
regard of issuance of drivers licenses.
Mr. DeFazio. No, no. Wait. We are not preempting. All we
are doing is certifying that the person whose name has that
license, who has a HAZMAT certification issued by the State, is
that person and does not have a criminal background or is not
an illegal alien or terrorist. That is all we want to know. And
if so, then the appropriate Federal law enforcement people
would be involved and that person would lose their license. But
we are not preempting the States. If you use that example, then
we preempted the States in aviation, we preempted them in port
security, we preempted them in a whole bunch of areas, have we
not?
Mr. Blank. We felt it would be--I will address that in a
second--but we felt it would be very confusing if we have the
Federal Government authorizing States as to whether or not it
is legal and appropriate directly to issue licenses or not.
Rather, we thought it would be more appropriate for us to be
their partners in conducting this.
If you switch over to the aviation side, what we do there,
as you pointed out, for those background checks is we regulate
airports and require them to conduct certain of the enrollment
and transmission function and we regulate the airlines. I am
not sure how much the trucking industry would like us to be
regulating them directly.
Mr. DeFazio. We regulate the trucking industry in safety
and time/duty hours, things like that. There is a tremendous
amount of regulation of the interstate trucking industry. Look,
it is not working, and hopefully you will admit that. It is
cumbersome. It is imprecise. It is hit or miss. We really need
to look at a successful model that is a lot cheaper, that is a
lot more secure, that would not raise all the host of problems
that Mr. England is pointing to in terms of the implementation.
I think if we could get it down to $29 and four hours, I do not
think he would be saying that we cannot do this.
Mr. Blank. Congressman, I think it is premature to say it
is not working. It has barely even started yet. We have been in
business since January 31 on new
Mr. DeFazio. Come on. If I might just reclaim my time. I do
not know how many DMVs you visit around the country. I have
visited a few in different States. You have got some pretty
primitive DMVs out there and we are going to try and deal with
that in another law in terms of how they issue individual
licenses to citizens or non-citizens.
We have just preempted their authority to issue licenses to
270 million Americans and you are concerned about whether or
not we are going to preempt them. I mean, how many HAZMAT truck
drivers are there? There are not 270 million. We have preempted
270 million drivers licenses by Federal law because we do not
think the DMVs are rigorous, they are cohesive. You can go in
some of these DMVs and it is like you are back in the 1950s or
in some Third World bureaucracy.
I just do not have the level of confidence you have. I
think we could do this a much better way. You both have a point
to make here. One is, I want to have the fingerprint checks and
know who these people are, but I want to do it in a way that is
not totally disruptive and excessively costly.
If I could just ask one other question. Mr. England did
make a point, and I would hope it is not true, that what we are
trying to do here is capitalize a system that is going to be
used beyond trucking. If we are capitalizing a system for
Federal national security purposes, we should capitalize it out
of the Federal budget and not on the backs of truck drivers.
Mr. England. Excuse me. I apologize, because of the delay,
I have to go to catch a plane. But I appreciate the opportunity
of being here.
Mr. DeFazio. Sure. Okay. I understand that. I do it all the
time.
Mr. Petri. Mr. Blank, if you could just respond to that.
Mr. Blank. Sure. Let me discuss the cost issue. In nearly
every instance, the cost to do the background is between $92
and $94, and that is whether or not it is at an agent or a non-
agent State. The FBI fingerprint check is $22 of that, that is
a pass-through cost; that is what it is. And the information
collection element when TSA does it is $38, when the States do
it it can vary, yes, but they are the ones that have elected to
do that.
For TSA's purposes, we have put a threat assessment fee on
there of $34, which means we are charging in the agent States
$94. For the most part, we are building the capital
infrastructure with appropriated dollars, some $12 million over
the past couple of years have built the infrastructure,
appropriated dollars, but there is a small portion of that $34
assessment fee that is contributing to building our capability
and our infrastructure to do this program.
And if I could, sir, I do want to address the issue of
whether things are working or not. We have 2.7 million
background checks to complete over the next five years on
truckers that have the HME endorsement on their CDL. We have
really only been in business since January 31 doing that. We
have 30,000 of that 2.7 million in. We have completed the
background check on 2,500 of that. We are prepared to ramp that
up as of May 31. But I think it is awfully early in the game to
say that the system we have put in place will not work or is
not working.
Mr. DeFazio. Again, you are depending upon 50 States not
using uniform technology, some using Federal contractors to do
this. I just think it is destined to fail. I just do not
believe that the State of Mississippi using inked fingerprints
and putting them in the mail, or whatever State might be that
retrograde versus the system. I am just back to the point of
the AAAE system it works, it has more integrity, and it is more
efficient, and they are apparently somehow either breaking even
or making money on it at $29, and they are accessing the same
database which costs $22, so apparently their processing cost
is $7.
Mr. Blank. Well we think the cost to do this at the $92 to
$94 level is in line with an original passport that is going to
cost you $97.
Mr. DeFazio. A what?
Mr. Blank. An original passport. If you are over 16 and you
go for a passport application, you are going to pay $97 to get
a U.S. passport.
Mr. DeFazio. The ones with the chips that anybody in the
world can intercept and read, those great things? Yes, those
will be nice.
Mr. Blank. I cannot address that. But I do think that we
are not out of line. We have looked at other Government fees
relative to getting official documents and credentials.
Mr. DeFazio. Okay. Thank you, Mr. Chairman.
Mr. Petri. Thank you. Mr. Oberstar wanted to have some
questions. We have a few minutes till a vote.
Mr. DeFazio. Mr. Chairman, I ask unanimous consent that
members be able to submit written questions, which will never
be answered, for the record. In my observation, most of mine go
unanswered unless I am very persistent.
Mr. Petri. Sometimes it depends on the question, too. Mr.
Oberstar?
Mr. Oberstar. Thank you, Mr. Chairman. And I would caution
witnesses to answer questions and staff can follow up on those.
What I am concerned about here is we created the Department of
Homeland Security who is supposed to coordinate and bring all
elements together. Mr. Chairman, we heard that time and again
in the creation of this Department of Homeland Security, that
we can have all these elements together under one roof and all
things are going to be hunky-dory. And they are not. There
seems to be less communication, less coordination, less
cooperation now than before creation of this Department.
Why are these agencies not coordinating, communicating, and
formulating this program and removing these obstacles. Why can
you not work out a Memorandum of Understanding within the
Department on how to get this thing done instead of scrapping
the law, putting it on hold, waiting till God knows when.
We passed this legislation. We expect it to be enforced, we
expect it to be implemented, we do not expect it to be put off
and delayed until hell freezes over and it is never done. Now
tell me why you cannot work out a Memorandum of Understanding,
overcome the obstacles, get this cost down, figure out a
central place that is accessible for drivers so we can get
this, and the universe of drivers who handle hazardous material
is relatively small compared to the total number of 3 million-
plus CDL drivers. I want an answer.
Mr. Blank. Well we think that we are addressing many of the
concerns that you laid out. In terms of availability of sites,
taking into consideration what an individual driver is faced
with, we have even offered to go into particular trucking
companies with terminals, with a mobile unit to make it easy
for their drivers.
Some people say we are two years late, and that is a fair
criticism, sir. We published our interim final rule in May of
2003 and we wanted to implement by November 2003. Our partners,
the States, indicated that compliance with that aggressive time
frame, given the significant IT infrastructure changes in order
to accommodate this, was not realistic.
And so we first pushed that back to 2004 as a result of the
feedback we got from partners, industry and others. At that
point, we realized that in order to be able to conduct this
program we needed to have fee authority, which we did not have,
and the Congress did give us that in our appropriations measure
of 2004.
Then we had to go through a rulemaking in order to
implement the authority that the Congress gave us, and that
began to push us towards the end of 2004 until we could get all
the Government apparatus, if you will, in place.
But I think that a spin-off positive effect of that was it
gave the States, it gave the industry, and it gave the drivers
representatives, the Unions, a significant period of time to
figure out how all of this was going to impact. This is not
something that is brand new. The people at this table have
known that this has been coming for a significant period of
time. And there has been communication. Are we all in agreement
on everything? No, we are not. Did we have some fits and starts
and deserve some criticism? Yes, sir, I will take that onboard.
Mr. Oberstar. Mr. Zinser, do you find it unusual that there
has not been an agreement worked out here?
Mr. Zinser. Yes, sir, because TSA went through the same
thing with the airports. So we are wondering where the
communication breakdowns have occurred. It is obvious that
there are disconnects between the industry and TSA, but it is
reminiscent of what the Agency went through with the airports.
Mr. Oberstar. I find it unacceptable, I will just be kind,
that there is a $94 charge per test for drivers. TSA security
personnel do not pay that. TSA covers that cost. Security
personnel who are employed by airports do not pay that security
charge. It is paid by the Airport authority. Why are drivers
being saddled with this cost? Why? Because, on one hand, we
have not appropriated funds to cover the cost of doing it, and
that should be done. But regulation in this context should not
be paid for by the regulated.
I know, Mr. Chairman, we are running out of time. We have
got a vote on the floor and you probably want to conclude the
hearing.
Mr. Petri. Yes, we have run out of time. But I am hoping
this is the last hearing on this subject and everything moves
forward well from this point. But I am fearful that unless
there are a number of big changes, we are going to be
continuing to have problems as we attempt to implement greater
safety regimes in trucking. So we will be monitoring it and
working with the different stakeholders and probably revisiting
this from time to time as this process unfolds.
Mr. Oberstar. One final comment, if I may. It is not
sufficient in my lengthy experience in security in aviation and
in surface transportation for a name check. You have got to
have more than that. Government should pick up that cost and we
ought to be appropriating the funds for it. But we should not
put these regulations off.
Mr. Petri. The hearing is adjourned.
[Whereupon, at 4:40 p.m., the committee was adjourned.]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]
[GRAPHIC] [TIFF OMITTED]