[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

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             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.]

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