[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
SAFE TRUCKERS ACT OF 2006
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ECONOMIC
SECURITY, INFRASTRUCTURE PROTECTION, AND CYBERSECURITY
of the
COMMITTEE ON HOMELAND SECURITY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 16, 2006
__________
Serial No. 109-85
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
__________
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COMMITTEE ON HOMELAND SECURITY
Peter T. King, New York, Chairman
Don Young, Alaska Bennie G. Thompson, Mississippi
Lamar S. Smith, Texas Loretta Sanchez, California
Curt Weldon, Pennsylvania Edward J. Markey, Massachusetts
Christopher Shays, Connecticut Norman D. Dicks, Washington
John Linder, Georgia Jane Harman, California
Mark E. Souder, Indiana Peter A. DeFazio, Oregon
Tom Davis, Virginia Nita M. Lowey, New York
Daniel E. Lungren, California Eleanor Holmes Norton, District of
Jim Gibbons, Nevada Columbia
Rob Simmons, Connecticut Zoe Lofgren, California
Mike Rogers, Alabama Sheila Jackson-Lee, Texas
Stevan Pearce, New Mexico Bill Pascrell, Jr., New Jersey
Katherine Harris, Florida Donna M. Christensen, U.S. Virgin
Bobby Jindal, Louisiana Islands
Dave G. Reichert, Washington Bob Etheridge, North Carolina
Michael T. McCaul, Texas James R. Langevin, Rhode Island
Charlie Dent, Pennsylvania Kendrick B. Meek, Florida
Ginny Brown-Waite, Florida
______
Subcommittee on Economic Security, Infrastructure Protection, and
Cybersecurity
Daniel E. Lungren, California, Chairman
Don Young, Alaska Loretta Sanchez, California
Lamar S. Smith, Texas Edward J. Markey, Massachusetts
John Linder, Georgia Norman D. Dicks, Washington
Mark E. Souder, Indiana Peter A. DeFazio, Oregon
Mike Rogers, Alabama Zoe Lofgren, California
Stevan Pearce, New Mexico Sheila Jackson-Lee, Texas
Katherine Harris, Florida Bill Pascrell, Jr., New Jersey
Bobby Jindal, Louisiana James R. Langevin, Rhode Island
Peter T. King, New York (Ex Bennie G. Thompson, Mississippi
Officio) (Ex Officio)
C O N T E N T S
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Page
STATEMENTS
The Honorable Daniel E. Lungren, a Representative in Congress For
the State of California, and Chairman, Subcommittee on Economic
Security, Infrastructure Protection, and Cybersecurity......... 24
The Honorable Stevan Pearce, a Representative in Congress For the
State of New Mexico............................................ 1
The Honorable John Linder, a Representative in Congress For the
State of Georgia............................................... 24
The Honorable Bennie G. Thompson, a Representative in Congress
For the State of Mississippi (Ex Officio)...................... 2
WITNESSES
Robert Jamison, Deputy Administrator, Transportation Security
Administration, U.S. Department of Homeland Security:
Oral Statement................................................. 2
Prepared Statement 4...........................................
David S. McClimon, President, Conway Freight Inc., Representing
the American Trucking Association, Inc.:
Oral Statement................................................. 14
Prepared Statement............................................. 16
Todd Spencer, Executive Vice President, Owner-Operator
Independent Drivers Association:
Oral Statement................................................. 19
Prepared Statement............................................. 23
Cynthia Hilton, Executive Vice President, Institute of Makers of
Explosives:
Oral Statement................................................. 24
Prepared Statement............................................. 26
SAFE TRUCKERS ACT OF 2006
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Friday, June 16, 2006
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Economic Security,
Infrastructure Protection, and
Cybersecurity,
Washington, DC.
The subcommittee met, pursuant to call, at 10:18 a.m., in
Room 311, Cannon The Capitol, Hon. Stevan Pearce presiding.
Present: Representatives Lungren, Linder, Pearce, and
Thompson, ex officio.
Mr. Pearce. If you all are finally ready, we will get
started here. Excuse us, but the need to get out of town on
Friday sometimes gets overwhelming.
The Committee on Homeland Security, Subcommittee on
Economic Security, Infrastructure Protection, and Cybersecurity
will come to order. The subcommittee is meeting today to hear
testimony on H.R.V04, the ``Screening of Applied Fairly and
Equitably to Truckers Act,'' or the ``SAFE Truckers Act of
2006.''
Mr. Pearce. Last November this subcommittee held a hearing
on TSA's Hazmat endorsement security assessment program. This
program requires all truck drivers who want to haul hazardous
materials to undergo a fingerprint--based criminal history
records check. While the intent of the program was to
misappropriation of materials that could be used against the
country in a terrorist attack, from our testimony last November
and from ongoing subcommittee oversight, it is apparent this
program is unnecessarily broad and not an efficient use of TSA
resources.
The current Hazmat list includes over 4,000 materials and
is based on environmental and safety concerns. As a result, TSA
is forced to screen nearly 2.7 million drivers, or
approximately 25,000 applications, a month. The majority of
these drivers will probably never haul materials that present a
real security risk. This is simply a misuse of limited
resources.
The SAFE Truckers Act alleviates this burden on TSA by
focusing the most intensive background checks on those hauling
materials that pose the greatest risk.
Without compromising security, I am also concerned about
the current program's cost and impact on our truckers.
Currently, all 2.7 million Hazmat truckers will pay fees in
some States as high as $130. These truckers also face delays of
lost productivity in traveling to and from limited locations to
collect the fingerprints necessary for background checks. By
requiring all Hazmat--endorsed drivers, which represents nearly
90Sec. rcent of commercial truck drivers, to undergo such a
comprehensive background records check, we may be discouraging
or unnecessarily disqualifying otherwise qualified individuals,
resulting in a shortage of muchneeded drivers.
The bottom line is, the current program's all-inclusive
approach is a costly, inefficient, lengthy burden on our
Nation's truckers, who are vital to this Nation's economy and
supply chain. The SAFE Truckers Act will provide relief for
truckers without sacrificing security by employing a risk--
based system to focus the most scrutiny on those drivers
hauling materials that are true security risks in order to
eliminate duplicative background checks and increased cost to
drivers. The SAFE Truckers Act requires that the Department
issue the permit as part of TWIC. The act further requires that
the Department review all Federal Government credentialing
programs to identify common characteristics with the goal of
eliminating costly redundancies.
I think this bill begins to address the concerns that this
committee has heard from interested stakeholders for the last
year and a half, and I look forward to hearing both TSA's and
the affected stakeholders' thoughts on approving this much--
needed legislation.
I would like to thank our witnesses for joining us today. I
would now recognize the ranking member of the full committee,
Mr. Thompson, for his comments.
Mr. Thompson. Thank you very much, Mr. Chairman. And like
you, I am happy to be here for the hearing.
I have a number of operations in my district that are
impacted by this legislation. A number of them are concerned
that the standard for licensing is for everybody and that it
should be separated. They have been concerned that there are no
appeal rights to any denials. And so this is a wonderful
opportunity; it makes sense.
The cumbersome process of the hoops many operators have to
go through is significant too. So I look forward to the
hearing.
I would also like to ask unanimous consent to include in
the record a letter from Congressman Cunningham--Carnahan,
excuse me--and the Teamsters in support of the legislation.
Mr. Pearce. Without objection.
Mr. Thompson. And I look forward to the hearing. I yield
back.
[The statement of Mr. Carnahan follows:]
Retained in Committee files
Mr. Pearce. Our first panel consists of Mr. Robert Jamison.
He is the Deputy Administrator of TSA, U.S. Department of
Homeland Security.
Mr. Jamison, you have 5 minutes. Your full testimony will
be put into the record.
STATEMENT OF ROBERT JAMISON, DEPUTY ADMINISTRATOR,
TRANSPORTATION SECURITY ADMINISTRATION, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Jamison. Good morning, Congressman Pearce and Ranking
Member Thompson. Thank you for this opportunity to update you
on the progress of TSA's Hazmat Assessment Program and to
comment on the SAFE Truckers Act of 2006.
In the 16 months since TSA began fingerprint--based checks
for hazardous material endorsements, required by the U.S.
PATRIOT Act, we have processed nearly 310,000 applications. We
have significantly reduced processing time by implementing
electronic submission requirements, including a Web--based
initiative to improve an application intake portal for use of
non--TSA Agent States. Over the last 3 months our average
processing time for all applicants has been reduced from 17
days on average to only 10 days, even though the applications
have risen from 10,000 per month on average to 24,000 per
month. To improve driver access to the enrollment process we
have expanded a number of sites to collect fingerprints and
driver information from 68 sites to a total of 172 sites.
To date, less than 1 percent of the applicants who apply
for an endorsement are deemed ineligible. We have processed
over 3,500 appeals and are focused on approving of the appeals
process.
Our analysis suggests that the applicants initially deemed
ineligible remain so as a result from their decision not to
follow through on providing TSA with the additional information
required to approve the Hazmat endorsement application. We
continue to strongly encourage all applicants to fully avail
themselves of the appeals process. TSA regularly evaluates its
systems and processes and, as a result, plans to implement a
new IT application to further improve the process by reducing
the number of determinations requiring follow--up, enhancing
performance and reliability and reducing operating costs.
We recognize that opportunities exist to reduce duplicative
requirements with DHS vetting on programs. Staff at TSA is
collaborating with other components and Federal agencies to
reduce duplication where possible. One such opportunity is a
transportation worker's ID card, TWIC. As this process rolls
out, drivers who have completed Hazmat security threat
assessment and who must obtain a TWIC card will not be required
to undergo another threat assessment.
TSA commends the subcommittee's risk--based approach to
establishing a security sensitive materials permit program. The
use of risk--based analysis in making operational decisions is
one of TSA's fundamental principles. Our efforts are focused on
increasing the broad baseline of security across transportation
modes using this approach.
It is through the lens of risk--based analysis, we welcome
the opportunity to comment on the SAFE Truckers Act of 2006. I
want to work with the committee in the days ahead as you
consider the bill. However, time is needed to coordinate this
proposal within DHS and the other affected Federal agencies.
It is important that the act avoid requiring the
duplication of requirements under the U.S. PATRIOT Act. Also,
as you look at narrowing the hazardous materials list to
sensitive security materials, it may be appropriate to consider
vetting all commercial driver's license holders against
terrorist watchlist databases. We believe this will raise the
overall baseline of security.
Further, development of a sensitive--or security--sensitive
materials list is a complex task that will require careful
analysis and thoughtful input of private sector stakeholders
and government agencies at the Federal, State and local levels.
TSA will begin to determine how current systems and
procedures can be delivered to deliver security--sensitive
materials program. We recognize establishing a new compliance
and enforcement processes will require time and coordination.
Moreover, conducting a rulemaking and completing the processing
of all drivers in 1 year will be a challenge.
Finally, we remain cognizant and sensitive to the fact that
there are substantial costs associated with the infrastructure
conversion and rulemaking to accomplish the bill's goals. As
such, we are working on duplicative efforts, some of which I
have described in my testimony today.
In conclusion, TSA believes there is merit in taking a
risk--based approach to establishing a list of sensitive--
security--sensitive materials. We look forward to working with
the subcommittee to resolve the issues I have touched upon
today and we may address in the future.
In the meantime, TSA's HME system is working well. We
continuously seek opportunities to improve it.
I look forward to your questions.
[The statement of Mr. Jamison follows:]
Prepared Statement of Robert Jamison
Good morning Chairman Lungren, Ranking Member Sanchez, and Members
of the Subcommittee. I am pleased to have this opportunity to testify
on behalf of the Transportation Security Administration (TSA) on the
security of hazardous materials transported by commercial motor
vehicles and considerations related to establishing a permit process
for security sensitive materials.
Last November, TSA provided the Subcommittee with a full report on
our hazardous materials (hazmat) threat assessment program implementing
Section 1012 of the USA PATRIOT Act. Today, I would like to update you
on the progress we are making.
The Hazmat Threat Assessment Program
TSA is proud of the progress we have made in implementing the
hazmat threat assessment program. In the sixteen months since the
Department of Homeland Security (DHS) began fingerprint-based checks,
we have processed nearly 310,000 applications. Today, 33 States and the
District of Columbia participate as Agent States through which TSA
collects and transmits fingerprint and driver application information
at 170 enrollment sites. There are 17 Non-TSA Agent States. Recently,
one of these states elected to have TSA perform collection and
processing duties beginning later this year.
TSA has established a comprehensive program, and we continually
seek opportunities for improvement. We have significantly reduced
processing time by implementing electronic submission requirements,
including a web-based application intake portal for use by Non-Agent
states. Customer service and response times to state queries have been
significantly enhanced through the introduction of the State Portal, a
secure web site that provides all states with electronic notification
of threat assessments for drivers and driver processing status. TSA
engages daily with state motor vehicle departments, industry
associations, and other stakeholders to expand the number of sites that
collect fingerprint and commercial driver information.
All of these improvements have helped the program process a large
number of applications in a short time. Since initiation of the
program, the average processing time for all applicants is
approximately seventeen days, but for the past three months, the
average processing time has been reduced to ten days, even as the
average number of applications received has risen from 10,000 in the
first months to over 24,000 per month today. TSA has received 308,018
applications, 3,509 appeal requests, and 385 waiver requests. To date,
the total number of applicants disqualified is 2,386, less than one
percent of all applicants.
Additional improvements anticipated in the near future include an
updated application that will reduce the number of initial
determinations requiring follow-up, further decreasing average
processing times. TSA is considering amending its rules to eliminate
redundant checks for drivers transferring among states, increasing
interoperability with other federal agencies that conduct comparable
checks, and improving operational processes. TSA is moving forward with
technical improvements to our information technology system that will
reduce operating costs, improve performance and reliability, and
enhance security and interoperability.
After the Transportation Workers Identification Credential (TWIC)
program rolls out, drivers with a hazardous material endorsement (HME)
who have already completed a security threat assessment and must obtain
a TWIC to have unescorted access to secure areas of maritime facilities
and vessels will not be required to undergo a new threat assessment as
part of their TWIC application. However, these drivers will have to
enroll and provide biometrics that are used to verify identity on the
TWIC and pay an incremental fee to cover those costs.
As we pursue improvements in the hazmat threat assessment program,
we are looking at ways to leverage data collection innovations that
will reduce duplication of effort among DHS vetting and credentialing
programs. The Department is carefully assessing the interoperability of
a variety of programs to ensure that they are complementary, while
working toward the ultimate convergence of our credentialing programs.
Risk-Based Approach to Hazardous Materials Security
While the hazmat threat assessment program moves forward
successfully, we are examining TSA's programs in relation to the
agency's key operating principles. One of these key principles is to
use risk analysis to make operational decisions, assessing and
undertaking risk management and mitigation measures based on their
effect on the total transportation network.
TSA continues to aggressively address the risk posed by hazardous
materials moving through domestic supply chains. Through risk-based
analyses we have implemented a number of programs designed to mitigate
these risks. Our recent work in freight rail focuses on identifying and
implementing voluntary security action items designed to mitigate the
risk of materials that pose a Toxic Inhalation Hazard in domestic
freight rail transportation. In coordination with DOT we will continue
to develop and implement risk-based security programs to secure the
transportation of hazardous materials in all modes.
Security Sensitive Materials Permits
As the "SAFE Truckers Act of 2006" has only recently been brought
to our attention, TSA has only preliminary comments today. We will want
to work with other components of DHS and other federal agencies in
looking at its potential implications for security. We applaud the
Subcommittee for taking a risk-based approach in considering this
issue. In concert with narrowing the list to security sensitive
materials (SSM), based on risk, it may be appropriate to consider
vetting all Commercial Driver's License (CDL) holders against terrorist
watchlist databases.
One of TSA's preliminary concerns is that the bill would establish
duplicative requirements for threat assessments for commercial drivers
transporting hazardous materials. If the bill requires drivers who
transport SSM to obtain fingerprint-based threat assessments, it may
duplicate requirements for drivers under the USA PATRIOT Act and the
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU).
The timeframe established by the bill is not sufficient for an
appropriate regulatory analysis, including the evaluation of costs and
benefits needed to support a rule. Development of an SSM list is a
complex task that will requires time for careful analysis. In its
current form, the bill also does not provide sufficient time to modify
existing infrastructure to process and adjudicate permit applications
and to complete the processing of all covered drivers.
We recommend that the proposed legislation not prejudge the outcome
of the regulatory analysis. Any modifications to the hazardous
materials list that forms the basis of threat assessments should be
developed through the collective efforts of DHS, DOT, other interested
federal agencies, and industry and other stakeholders. The inclusion of
radioactive or nuclear materials would be of major interest to numerous
departments and agencies. The Domestic Nuclear Detection Office, for
example, would have a strong interest in exactly how that list of
materials is determined, as well as consistency with lists developed by
the Nuclear Regulatory Commission, the Department of Energy, DOT, the
International Atomic Energy Agency, and others. Not to be overlooked is
the role fulfilled by our state partners. It will be essential that any
possible modifications to the current regime be done in full
partnership with them.
We must analyze the relative risk for diversion and misuse of the
hazardous materials being considered for exclusion from the background
requirements. Second, we cannot limit our review to individual
materials, but rather must consider all possible safety and security
risks which come from instances where various combinations of
relatively low risk hazardous materials could result in substantial
death, injury, or damage to the environment. Third, we must consider
factors affecting vulnerability to shipments in transport. Finally, we
must carefully analyze the degree to which driver background checks
would identify and address those potential vulnerabilities.
In our regulatory analysis, we would also want to determine the
population of drivers that would be covered by a new system. Today
companies often require all their drivers to have an HME on their
commercial driver's license because of the unpredictable nature of the
shipments drivers may transport. This gives the company the flexibility
to match a load with a driver at any given time to satisfy just-in-time
delivery requirements. Under a potential SSM permit system, a company
would still need to match specific drivers with a specific short list
of security sensitive materials. In considering the feasibility of any
change, it will be important to know whether drivers will be required
to not only obtain an HME, but also obtain the SSM permit, even though
the likelihood of transporting SSM may be small. TSA should have the
opportunity to consider whether establishing a list of SSM would reduce
shipper options for transporting certain commodities.
We would also need to consider the potential implications of the
TWIC program for commercial drivers. The proposed TWIC program would
require all individuals who require unescorted access to secure areas
of facilities regulated under the Maritime Transportation Security Act
to obtain a TWIC. This includes CDL holders transporting general
freight that need access to ports to load or unload their cargo, not
just those transporting hazardous materials.
Serious consideration must be given to how current systems and
procedures would be converted to the delivery of an SSM permit program.
Both the TWIC program and the substantial efforts and investments of
the States in the HME infrastructure and processes would have to be
considered and evaluated. TSA would want the flexibility to assess
alternatives for phasing in implementation of an SSM permit program.
Operationally, 100 percent transition to a fingerprint-based background
check for the SSM driver population in one year would be very costly.
Currently, drivers holding an HME undergo a fingerprint-based security
threat assessment on a rolling, five-year basis (on average) based on
the renewal dates of drivers' current HME. This evenly distributes the
processing load and requires less system capacity and manpower.
Procedural and cost factors for compliance by shippers, including
technology costs, need to be evaluated, and enforcement procedures,
including roadside options, for a new permit will also need to be
established. Today approximately 900,000 law enforcement officers have
some responsibility for commercial vehicle enforcement. Under the
current system, law enforcement officers can readily discern whether a
driver is carrying hazardous materials in amounts requiring placarding
and whether the driver has the necessary commercial driver's license
hazmat endorsement. These officers would require new training and
perhaps implementation of a new support infrastructure if enforcement
were to be effective. This is an extremely large task and needs to be
weighed when considering any alternative to the current process.
We are also concerned that by requiring TSA to issue a permit to a
commercial driver, TSA is effectively being asked to license
individuals to transport hazardous materials on the Nation's highways
and ensure the underlying driver's license is valid and appropriately
endorsed to transport those materials. This responsibility currently
falls under the authority of the states and the DOT by statute. DOT,
through the Federal Motor Carrier Safety Administration develops,
maintains, and enforces federal regulations including the requirements
that promote carrier safety and establish safe operating requirements
for commercial vehicle drivers, carriers, vehicles, and vehicle
equipment.TSA places a high value on collaboration with other
government agencies and the recommendations of the private sector to
improve transportation security. We believe that formation of task
forces to assess security risks to motor vehicles transporting security
sensitive material and to review the lists of disqualifying crimes of a
terrorism security risk is highly relevant and could be beneficial to a
potential SSM permit program. We would note, however, that DOT is
already engaged in assessing the vulnerabilities of motor vehicles
transporting hazardous materials. Unfortunately, the 180 days provided
by the bill does not provide sufficient time for the appointment of
task force members, collection of information and data, task force
deliberation, development of reports, and consideration of task force
results in agency decision making. Additionally, the Federal Advisory
Committee Act imposes substantial procedural requirements on any task
force including non-federal representatives.
TSA is also concerned about the substantial funding needs that such
an effort would require. SSM permit user fees may pay for operational
costs and the expenses involved in performing threat assessments and
issuing the necessary certifications. However, there are substantial
costs associated with the infrastructure conversion necessary for such
an endeavor and notice and comment rulemaking. There is no current
appropriation for this, and the TSA budget request for FY 2007 does not
include any such funding to cover these costs, since there is no
current authorization for this program.
In conclusion, TSA commends the Subcommittee's efforts to take a
risk-based approach to the transport of hazardous materials. I hope the
Subcommittee will consider the complex analytical and operational
issues that must be considered to ensure security and not cause undue
burdens on drivers, industry, or government. Time is needed to provide
a smooth transition if Congress determines this is the proper course,
and the need to implement an SSM permit process is not immediate. TSA's
current HME system, including waiver procedures, is working well, and
we are working closely with DOT's Pipeline and Hazardous Materials
Safety Administration in looking for areas where there may be
opportunities for reducing the regulatory burden on shippers and
carriers.
TSA looks forward to working with the Subcommittee to address these
issues.
Thank you, again, for this opportunity to appear before the
Subcommittee. I will be pleased to answer any questions you may have.
Mr. Pearce. Thank you very much, Mr. Jamison, for your
testimony.
You had mentioned that one State has called on you all to
do their processing and collection of data. Which State? And
have you actually followed through on that?
Mr. Jamison. The State--we currently have 33 States we have
the TSA agency in.
Mr. Pearce. The one that has asked you to do the full
collection. That is all I am asking.
Mr. Jamison. Illinois.
Mr. Pearce. And they--
Mr. Jamison. We are currently working with them to make
them an TSA agent. I am not sure when exactly they will come
online.
Mr. Pearce. In page 3 of your testimony, you say that it
might be appropriate to consider vetting all commercial
drivers, CDL holders, against terrorist watchlist databases.
What would cause you to say that that is more important
than some of the other priorities that are in front of you?
Mr. Jamison. Well, as we take a risk--based approach, we
agree it may be time now to narrow down this Hazmat list to
really, really dangerous Hazmat. But as we do that, we think we
can improve the overall baseline security by having a much less
intrusive check on the broader CDL license base, because these
trucks and vehicles have access to a lot of our major
infrastructure. This type of vetting would be much less
intrusive than the fingerprint--based criminal history record
check that will give us an overall baseline security
improvement. And in combination with the Real ID Act coming
forward in the future, we think that it will reduce a lot of
vulnerabilities in the CDL system.
Mr. Pearce. You think that CDL system has vulnerabilities
that you can solve by vetting those particular people?
Mr. Jamison. I think it will help on the vulnerabilities.
But in combination with the--
Mr. Pearce. Well, it would help to check every single
driver out there in the system.
At what weight limit is your CDL required? It is about
26,000 pounds, I will just tell you.
So how much sodium nitrate is necessary to really blow up a
building, for instance? How much was in the Oklahoma bombing?
Mr. Jamison. I believe the Oklahoma bombing, there was
2,500 pounds, I believe.
Mr. Pearce. Two thousand five hundred pounds. So you have
people with access to everything that don't have to have a CDL
driver's license of any kind, and yet you are going to say that
you are going to make the system safer by choosing these people
with CDLs; and I just don't see where you are getting the
information from. I don't see why you are setting the
priorities there, and I don't understand why the comments are
made in your testimony.
It seems like you really should look at the risks rather
than just saying, we can improve the systems incrementally by
just vetting all the CDL drivers. That seems to be a knee--jerk
reaction, frankly, from the employer that has had to comply
with too many regulations that just don't make sense in any
regard.
And in my previous business, we moved equipment over the
road by trucks and CDL drivers; so I am very familiar with what
you are suggesting here, and I am not sure that I think it is
going to accomplish much of anything.
You talked about the TWIC card becoming maybe the full
identification card. Have you discussed this with law
enforcement agencies and with the law enforcement community?
Mr. Jamison. As far as in regards to replacing the HME?
Mr. Pearce. Yes. If it becomes the full identification
card, obviously it is going to replace several other things,
and it just seems like that is a much broader discussion than
just by TSA itself.
Mr. Jamison. Currently we are having broad discussions, as
you know, in the NPRN process with the TWIC rulemaking which
includes all stakeholders. As we go through that process, we
are going to learn a lot more, and before we move to make that
a broader application across the other transportation modes, we
are going to certainly engage all stakeholders, including-
Mr. Pearce. Can you give me an idea of the stakeholder list
that you are currently engaged in this particular discussion
with?
Mr. Jamison. Of course. All the port workers, the drainage
community, the maritime industry, including Coast Guard and all
the Merchant Mariners, as well as several other populations.
I would be happy to follow up with a full list.
Mr. Pearce. If you would provide a full list, I certainly
would appreciate that.
You have got concerns about implementing the bill. At what
point are you going to make the decision to actually begin to
take things off the list of hazardous substances? When are we
going to know the outcome of those internal discussions?
Mr. Jamison. We hope to--we are undergoing in-depth
analysis of the whole Hazmat chain right now, including
trucking, rail, across the transportation spectrum from origin
to destination, full supply chain analysis. We hope to have
some initial results of that from what we think are the most
high--risk chemicals in the very near future, in the summer
time frame; and we would like to work with the committee as
they entertain coming up with an SSM list.
Mr. Pearce. Can you get me any closer to that than summer
time frame? What is the timing? Because too often we are
sitting up here on these oversight committees and we hear
summer time frame, and it becomes winter time frame or fall,
and we simply go through decades like that.
Mr. Jamison. Well, we have an in--depth process. We can
identify fairly quickly which substances we are most concerned
about, but the concern is, we don't jump to conclusions until
we have done a full analysis of where these chemicals are
moving through the system, where the risk and vulnerabilities
are, to make sure we understand the existing systems that are
in place, and leverage those networks to know the full
implications and the full vulnerabilities.
But we could forward a list to you based off what our
analysis is on the chemicals in a very short time frame, within
a few weeks.
Mr. Pearce. So you have not yet considered whether hauling
women's nail polish needs to be on your full list, that that
hasn't yet sprung out as one of the things that ought to be
weeded off the list yet. Is that correct?
Mr. Jamison. I would say that is not correct. I mean, we
are fully aware that putting Hazmat extensions on people that
are hauling paint or fingernail polish is not appropriate.
Mr. Pearce. My question is, when are those obvious
exceptions? I know there are things that come very close to the
line, but when are those obvious exceptions going to be
delineated and told to the full committee and to the community
at large?
Mr. Jamison. We can forward to the committee over the--
within the next 2 weeks which chemicals we think are very, very
susceptible to coming off the list. We can do that within 2
weeks.
Mr. Pearce. But the question that is being begged is, when
are they going to be taken off? When are you actually going to
start making decisions that make this thing simpler rather than
more complex?
Mr. Jamison. I think it is a combination of looking at the
broader picture to make the determination of what we can do,
but like I said, we support the committee's move to narrow the
list. We would like to do that, but we would like to look at
the broader issues we would like to add.
Mr. Pearce. I know my time has expired, sir. I just keep
trying to get an answer.
You are telling me there are things that do not fit the
list, but you cannot tell me that you are going to pull the
trigger and actually do anything to get them off the list. I
find that very disconcerting, and I will continue to find that
very disconcerting.
I think you really need to start making decisions inside
the Agency and start showing a simplified list to the American
public, because right now it is in a state of flux, and the
people who are trying to make a living out there, the drivers,
the people who are hauling freight, do not know what you are
going to do; and that uncertainty is a very difficult thing for
business.
And that is what I am telling you, that you need to start
pulling the trigger on some of these things. There are obvious
exceptions, but there are obvious things that do not fit on the
Hazmat list.
Mr. Jamison. I appreciate your concerns, and we look
forward to doing that.
The other provision that we just need to keep in mind is,
currently we had no flexibility to narrow the list ourselves
because of the provisions of the PATRIOT Act, which require us
to require a Hazmat extension for all placard loads as
determined by the Department of Transportation. So it is not
within our purview to take the items off the list with the
current statute.
Mr. Pearce. That would have been the appropriate question
up front. I will come back in the second round, and I will ask
what legislation--so that your staff is ready, what legislation
we need to give you the oversight capability, or give you
whatever freedom.
But to have the bureaucracy bound up in legislation, that
is the correct answer up front; and then we will be happy to do
what we can to open that up.
Mr. Thompson.
Mr.Thompson. Thank you very much, Mr. Chairman.
Mr. Jamison, if a trucker already has a hazardous material
endorsement, do you think he should be charged for a TWIC card?
Mr. Jamison. Currently, in the NPRN proposal, he is going
to be charged only the additional delta to get a biometric and
to get the handling and issuance of an access card that is
going to allow him to enter a secure facility. So right now he
will not be charged to go through another security threat
assessment. He will be charged for the additional cost of
issuing a new medium and a new access card and the process that
goes behind capturing a biometric to put on that card.
Mr. Thompson. So how much is that?
Mr. Jamison. Current estimate is, it is about $105.
Mr. Thompson. $105. So can you give me--what would a
trucker normally have to pay to get regular hazardous
endorsement?
Mr. Jamison. Currently, I am not familiar with exactly what
the State fees are. The State fees average $91 across the
system. If you are a TSA agent, just for our Hazmat extension
it is $94.
So the $105 would be in addition to the $91 average across
the system.
Mr. Thompson. So we are just adding an additional cost?
Mr. Jamison. It would be an add--on cost to the Hazmat
extension, yes. The Hazmat extension is required if that driver
is required to get secure access into a port facility.
Mr. Thompson. So I guess some of this redundancy in the
process concerns me a little bit.
What is the difference between the information required for
the hazardous material endorsement versus the rest of the
endorsement? Is it the same information they send to TSA?
Mr. Jamison. The checks are consistent and the background
checks are fairly consistent. The difference is, one, the
enrollment process, the collection of the different-- of
additional biometric information. And the processing and
reissuance of the card, the technology of producing a readable
card that can be used to access a reader in the port is a large
portion of that expense.
Mr. Thompson. So your testimony is that, now, additional
sites are being added so people won't have to go hundreds of
miles to get the certification?
Mr. Jamison. When we rolled out the program in January of
2005, we had 68 sites, I believe; and now we are up to 172. I
think we have got a couple of sites that were pending, and we
continue to work closely with the States to try to come up with
creative ways, if they have issues with drivers not being able
to get access to the facilities. But we feel like we have
greatly improved access over the course of the roll--out in the
last 16 months.
Mr. Thompson. You also state in your testimony that there
is not sufficient time for regulatory analysis. How much time
do you think we need?
Mr. Jamison. I think we need to let the regulatory process
and the rulemaking process play out, so going through that open
public comment period, we need to make sure we have enough time
to do that. We can work to expedite that as greatly as
possible, but it is really hard to estimate exactly how long
that is going to take.
Mr. Thompson. You don't have any idea? But you make
reference that it is not enough, on one hand, in your
testimony, but you don't have an idea as to how much.
Mr. Jamison. It is going to take substantially longer than
a year we think. We can work to do what we can to expedite it.
As I said, as we get more opportunity to look at the bill
and work through our other Federal partners we can come up with
a better determination. We are as committed as we can be to
expedite the process. We are just putting a precautionary
statement out there that we are concerned about the time frame.
Mr. Thompson. And in line with what the chairman had asked
earlier, in order to develop this security--sensitive materials
list, you also say you need more time. How much time?
Mr. Jamison. As I said earlier--mean, we can give you a
list of chemicals that we think are our highest priority from a
Hazmat standpoint in pretty short order, within weeks.
The broader issue of taking more time to do a complete
assessment of the whole supply chain and other vulnerabilities
is what we are working on, but we can share a list of what we
think is most important in a short time frame.
But I again remind you that currently we don't have the
flexibility with the statute to pull those items off the list
required for a Hazmat extension.
Mr. Thompson. I yield back.
Mr. Pearce. Mr. Jamison, on the question of your capability
to do this, and in your not being permitted to change the
Hazmat list under the PATRIOT Act, this legislation
accomplishes that, does it not? Doesn't it give you the
flexibility to then have the power to change that?
Mr. Jamison. The way the bill is currently drafted, I read
it as creating a duplicative requirement where we still have to
abide by the PATRIOT Act, as well as the new requirement, is
the way we read it. That was our concern about making sure we
don't have a duplicative process.
Mr. Pearce. Sure. And the committee has just informed me
that in full committee we will go ahead and address that.
But given the fact that the duplication is going to be
taken care of, does this legislation not free your hands up the
way that you said you need?
Mr. Jamison. It would give us some flexibility, yes, sir.
Mr. Pearce. So you state you are in favor, substantively,
of the bill, but you are worried about the implementation.
Describe to me the worry about implementation that you have.
Mr. Jamison. The only worry is, as I say, we haven't had
long to look at this. We want to continue to look at this bill.
We are overwhelmingly supportive of the concept of
narrowing the list. We think that that is a good risk--based
approach. We just need to make sure that we fully understand
implementation, especially as it ties to other affected
agencies, DOT and others.
But we are supportive. We want to work with you on this
legislation.
Mr. Pearce. In your testimony, you are talking about DHS
and DOT cooperating on really the hazardous materials list. Is
the mission of DOT similar enough to yours that you would
really--I mean, once they establish the Hazmat list, that is,
materials that DOT is concerned about having an effect on
drinking water and those things that are of valid concerns, but
certainly not the same sorts of concerns that would arise from
terrorist concerns.
So as I am reading this, all I see is a lot of bureaucratic
time involved, and I am not certain why. Can you explain to me
why it would be necessary to sit down with DOT? They have
already established the list. It seems like now your
requirement is to figure out which ones apply to Homeland
Security and to TSA.
Can't you simply go through the list and pull the trigger
on the ones--I am not sure what benefit it is to have DOT
sitting in the room looking over your shoulder, sitting across
the table. Can you tell me a little bit about why that
statement is in there?
Mr. Jamison. Sure.
First of all, one--both the Pipeline Safety Administration
as well as Federal Motor Carriers have a lot of expertise on
Hazmat, and we want to make sure they are involved. They are
involved working crew, so working through their rolls and so
forth is very important.
Just--for example, one of our biggest concerns, and we
think it is manageable and we need to work through it, is the
enforcement process. Right now, through motor carriers and our
State and Federal law enforcement agencies, it is fairly easily
cut that if a vehicle is placarded, they have a got a Hazmat
extension requirement, and it is an easy enforcement issue for
them.
As we go through that and narrow down that list, we need to
work with them on how it is going to be enforced, what the
implications are, so we make sure that we get the full intent
of what the legislation is trying to accomplish as implemented.
So that is just one example, but there are other examples
like that.
Mr. Pearce. In the next paragraph you talk about diversion
and misuse of hazardous materials. That term ``misuse'' is very
broad. In other words, I think I understand what the intent of
the Homeland Security Department is, and TSA, and I think I
understand the intent of checking drivers to make sure they
don't have access to places and things that can do great
damage. But the term ``misuse,'' to me, is very broad.
Again, speaking as somebody who has tried to put trucks on
the road and seen DOT, both statewide and Federal DOT, begin to
develop regulations, this part concerns me quite a bit. Tell me
a little bit about your concept.
Mr. Jamison. Well, I think misuse is a broad statement.
These are hazardous materials. We are concerned about
accumulation of these, even in small quantities over a long
period of time by a transporter, as well other intentions of
how these might be used to attack our major infrastructure. But
it--point well taken; it is a broad term.
Mr. Pearce. Mr. Thompson, you have further questions?
Mr. Thompson. Mr. Chairman, I have one additional question.
Mr. Jamison, we will be taking up the SAFE Truckers Act in the
not--too--distant future; and we have a section of the bill
that would not require a fingerprint background check for
truckers transporting nonsensitive security material. Does TSA
support that?
Mr. Jamison. As I said earlier, we do support the narrowing
of the list, which would include not having all Hazmat
extension drivers have to have a fingerprint criminal history
records check. We would like to work with the committee to
determine whether or not that broad--based terrorist watchlist
database check is appropriate. As I mentioned earlier to
Congressman Pearce, we do think that will raise a baseline of
security.
We know that there has been an interest by terrorist
organizations to acquire CDLs. That is one of the reason that
we think that would be helpful to us. And again, in combination
with the REAL ID Act, that is going to make sure that we get
better verification of the people that are getting the driver's
license, we think that will raise the baseline of security.
Mr. Thompson. In support of that, then, would you support
the development of a memorandum of understanding between the
Department of Transportation and the Department of Homeland
Security?
Mr. Jamison. Absolutely.
Mr. Thompson. Do you have one?
Mr. Jamison. We have got an overarching DHS and DOT
memorandum of understanding. We have got annexes on transit,
currently working with Federal--the Pipeline and Hazardous
Material and Safety Administration on a draft of an MOU for
that particular annex that will affect a lot of these issues.
Mr. Thompson. Any idea of when it will be completed?
Mr. Jamison. I think it will be completed within this
month. We are both committed. I was on the phone yesterday with
leadership at PHMSA, trying to push this along. They are
committed to doing it. We are committed to doing it. We think
we can get it done very quickly.
Mr. Thompson. Mr. Chairman, I would like, once it is
completed, for the committee to at least be provided a copy of
that memorandum.
Mr. Pearce. Absolutely, I agree. And we are going to go
ahead and move onto the next panel.
Mr. Jamison, you will be dismissed. We look forward to
getting the particular things that we talked about, the 2 weeks
of looking at the things you have already established and the
memorandum of understanding, the list of stakeholders that have
been involved. But we do appreciate your testimony and your
coming for questions today.
Mr. Jamison. Thank you.
Mr. Pearce. The Chair now calls the second panel to the
stand.
We are joined today by Mr. David S. McClimon. He is here on
behalf of the American Trucking Association. He is the
President of Con--way Freight Inc. Mr. Todd Spencer is the
Executive Vice President of the Owner--Operator Independent
Drivers Association. And Ms. Cynthia Hilton is the Executive
Vice President of Governmental Affairs, Institute of Makers of
Explosives.
Again, I would remind the witnesses that we are trying to
limit our statements to 5 minutes. Your full written testimony
is going to appear in the written record of the committee.
Mr. Chairman and members of the Subcommittee, thank you for
inviting me to testify today on behalf of American Trucking
Associations, Inc. ("ATA") on the subject of screen
Mr. Pearce. And at this time I would recognize Mr.
McClimon. Thank you very much for coming.
STATEMENT OF DAVID S. McCLIMON, PRESIDENT, CONWAY FREIGHT INC.,
ON BEHALF OF THE AMERICAN TRUCKING ASSOCIATION
Mr. McClimon. Thank you, Mr. Chairman and members of the
subcommittee. Thank you for inviting me to testify today on
behalf of the American Trucking Association on the subject of
SAFE Truckers Act. My name is Dave McClimon. I am President of
Conway Freight Inc., a $2.8 billion freight transport company
headquartered in Ann Arbor, Michigan, with 21,000 employees
located in 440 service centers throughout the United States and
Canada. I have submitted my written testimony for inclusion in
the record.
I would like to express my appreciation and gratitude to
this subcommittee for its continued interest and attention to
TSA's implementation of the Hazmat background check required by
the U.S. PATRIOT Act.
Mr. Chairman, in light of the introduction of the SAFE
Truckers Act by you and several members of this subcommittee,
it seems there is general agreement that the current Hazmat
background check process is not satisfactory. Today, we have an
overly broad program whose excessive cost and burdens far
exceed the benefits to homeland security.
The SAFE Truckers Act is necessary to appropriately narrow
the focus and more efficiently achieve our shared security
objective. By focusing fingerprint--based screening on drivers
who transport Hazmat that possesses significant risk to
homeland security, rather than screening all drivers who
transport any Hazmat, the SAFE Truckers Act will significant
enhance security.
From a security perspective, not all Hazmat is created
equal. Materials designated as Hazmat have been so designated
due to characteristics that require special consideration while
handling or during cleanup in the event of an accidental
release. Hazmat includes commodities like paint, perfume and
soft drink concentrate. These are not commodities that would be
attractive to a terrorist as a weapon. Passage of legislation
like the SAFE Truckers Act is necessary to differentiate
between Hazmat that possesses a significant threat to homeland
security and Hazmat that does not.
At my company, which is like many other trucking companies
when it comes to Hazmat transportation, Hazmat shipments only
make up roughly 3.5Sec. rcent of our overall shipments. This
translates to approximately 2,000 shipments daily. To
effectively transport these shipments on behalf of our
customers, we require all of our 14,500 drivers to have a
Hazmat endorsement, and we are now paying the fees charged to
them for the background check.
Our most frequently transported Hazmat is paint or paint--
related material -- again, not a threat to homeland security.
Yet a significant amount of time and money is spent on
screening individuals who transport paint and similarly
nonweaponized products.
For illustrative purposes, if the list of materials
identified as security sensitive neared the list of materials
that Congress identified as requiring carriers to obtain a
Federal permit, my company would only have 16 covered shipments
a day. We would not require our 14,500 drivers to go through
the fingerprint--based screening. Our drivers would save time
and avoid the inconvenience. We would save money, and the focus
would be on real risks to homeland security.
ATA is encouraged by the introduction of the SAFE Truckers
Act. With some suggested modifications, which I can briefly
discuss, we believe the SAFE Truckers Act can become a bill we
can enthusiastically support.
First, the bill needs to be modified so that the
fingerprint--based background check required for permit under
the SAFE Truckers Act replaces and is not simply in addition to
the current fingerprint--based background check required under
the PATRIOT Act provision. The trucking industry is facing
enough background checks as it is.
Second, the ATA is concerned that the SAFE Truckers Act may
be creating a different TWIC; since the disqualifying criteria
for the security sensitive permit and the TWIC are the same and
the same databases are checked, there does not appear to be any
need to modify the TWIC. The same TWIC that will demonstrate a
truck driver has successfully been screened for access to
maritime ports should also serve as the security--sensitive
material permit.
Third, the interstate trucking industry relies on
uniformity and thus benefits from Federal statutes preempting
State laws in several areas. Homeland security would seem to be
an appropriate area. Permitting States to require checks of
their own database rather than requiring States to upload the
relevant data to the Federal database results in lessened
security nationwide.
Fourth and finally, Congress has already recognized that
failure to notify employers of the final security threat
assessment determination under the current Hazmat background
check program creates an unnecessary risk. Congress addressed
that risk by requiring employer notification under the current
Hazmat background check program as part of the Highway
Authorization Bill.
Employers should similarly be notified under the program to
be established by the SAFE Truckers Act.
I thank you for the opportunity to testify today. The
industry appreciates the efforts by the members of this
subcommittee to achieve our shared homeland security objective
in a rational manner.
My colleagues in the trucking industry have done a lot,
most of it voluntarily, to enhance the security of the freight
transportation we provide. In return, we only ask for a
reasonable, risk--based approach as to protecting the homeland.
I would be happy to take any questions.
Mr. Pearce. Thank you, Mr. McClimon.
Prepared Statement of David S. McClimon
Mr. Chairman and members of the Subcommittee, thank you for
inviting me to testify today on behalf of American Trucking
Associations, Inc. ("ATA") on the subject of screening truck drivers
transporting hazardous materials ("hazmat"). My name is David McClimon.
I am President of Conway Freight Inc., a less than truckload carrier
headquartered in Ann Arbor, Michigan. Conway Freight Inc. is a $2.8
billion freight transport company with over 21,000 employees located in
440 service centers located throughout the United States and Canada. I
am here on behalf of ATA, a federation of motor carriers, state
trucking associations, and national trucking conferences created to
promote and protect the interests of the trucking industry. ATA's
membership includes more than 2,000 trucking companies and industry
suppliers of equipment and services. Directly and through its
affiliated organizations, ATA encompasses over 37,000 companies and
every type and class of motor carrier operation.
ATA appreciated the opportunity to testify before this Subcommittee
on reforming hazmat security last November. While many of the points in
that testimony remain equally relevant today, I will try to refrain
from being repetitive. ATA appreciates the Subcommittee's interest and
continued attention to this matter. ATA would like to thank Chairman
Lungren, Ranking Member Sanchez, and other Members for introducing the
SAFE Truckers Act of 2006 (H.R. 5604), which embodies a common sense,
risk-based approach to the threats posed by the transportation of
certain materials.
Overview:
Shortly after the tragic events of September 11, 2001, Congress
passed the USA PATRIOT Act in an effort to better secure the United
States against future terrorist attacks. Among its numerous provisions
was a requirement that all drivers seeking, renewing, or transferring a
hazardous materials endorsement ("HME") to their commercial driver's
license ("CDL") had to undergo a security threat assessment. While the
provision was no doubt well-intentioned, it was enacted with little
debate or discussion. Unfortunately, it has led to the unfortunate
result that a driver must subject him/herself to a costly and
burdensome security threat assessment in order to be authorized to
transport such everyday hazmat as paint, perfume and soft drink
concentrate (which require a HME when transported above certain
threshold quantities). ATA believes that requiring security threat
assessments of individuals that transport paint, perfume and other
everyday commodities was an unintended consequence of legislation meant
to protect against real risks to homeland security, i.e.,
transportation of security sensitive materials.
The leadership at the Department of Homeland Security ("DHS") and
the Transportation Security Administration ("TSA") has embraced the
notion of a risk-based approach to security. The SAFE Truckers Act
provides a legislative framework authorizing DHS and TSA to implement a
risk-based approach. It requires DHS to specifically identify materials
in amounts and form that pose a significant risk to homeland security
due to their potential for use in an act of terrorism. Drivers who
transport these identified materials above designated quantities would
be required to undergo a fingerprint-based security threat assessment.
Drivers and their employers who do not transport materials that are
identified as posing a significant risk would not have to bear the
costs and burden of undergoing a fingerprint-based security threat
assessment. This approach will allow for appropriate focus on the
security risk without jeopardizing the ability of motor carriers and
drivers to continue transporting those materials which do not pose a
significant risk from a security standpoint.
My company, Conway Freight Inc., is like many other trucking
companies when it comes to hazmat transportation. Although hazmat
shipments only make up roughly 3.5% of our overall shipments (roughly
2,000 hazmat shipments daily), all of our 14,500 drivers have HME's.
From an operations standpoint, we often do not know in advance which
drivers will be called upon to transport hazmat and therefore must
ensure that all of our drivers possess a valid HME. However, our most
frequently transported hazmat is paint or paint-related material. We do
not see why it is necessary to subject all of these drivers to an
additional security threat assessment on top of meeting the
longstanding safety requirements as currently set forth in the HME
regulations. For illustrative purposes, if the list of materials
identified as posing a significant security risk mirrored the list of
materials for which Congress requires carriers to obtain a special
security permit (the "Section 5109 list"), my company would only have
16 covered shipments per day. We would be able to narrowly focus the
security requirements, including the fingerprint-based security threat
assessments, on the drivers of these security sensitive shipments.
The trucking industry has long been dedicated to improving the
safety of truck transportation. Similarly, the trucking industry has
done much - most of it voluntarily - to ensure the security of truck
transportation. It is in the industry's interest from both a customer
relations perspective and a financial bottom line perspective. At Con-
Way, even though it is not required, we do criminal history record
checks on our drivers using third party services that review available
records from pertinent jurisdictions. However, at a time when the
public and private sectors alike have limited resources, our security
efforts must be focused on the most significant risks. The imposition
of burdensome and costly programs governing the transportation of
hazmat, such as the hazmat background check program, threatens to erode
the industry's ability to continue to deliver the goods that the
consumer expects. By determining what hazmat truly poses a significant
risk and not requiring a fingerprint-based threat assessment for
drivers transporting non-threatening hazmat commodities, Congress will
be eliminating many of the costs and burdens imposed by TSA's
implementation of the USA PATRIOT Act provision while still promoting
and protecting homeland security.
From a Security Perspective, Not All Hazmat is Created Equally
There is a need to distinguish hazmat that poses a risk to homeland
security from hazmat that poses no significant security risk.
Congress was rightly concerned about the security of transportation
of certain hazmat when it passed the PATRIOT Act. However, by tying the
security assessment program to the issuance, transfer or renewal of the
HME, Congress greatly overshot the mark. Drivers who haul any placarded
load, regardless of the nature of the hazmat, are subject to a
fingerprint-based background check. The SAFE Truckers Act would
recalibrate the program and direct DHS to focus on those materials that
truly pose a significant risk to homeland security.
Materials that have been designated as hazmat by the Secretary of
Transportation have been so designated due to characteristics that
require special safety considerations while the material is being
handled or during clean-up in the event of a release. Similarly, the
CDL has always been utilized to indicate a driver's qualification to
safely drive a commercial motor vehicle and, with respect to the hazmat
endorsement, as a measure of the driver's knowledge of the hazmat
regulations to safely transport placarded quantities of hazmat.
The security objective associated with screening individuals in the
transportation sector is significantly different from the safety
objective underlying the hazmat regulations and the qualifications for
an individual to obtain a HME. Therefore, experts in security (both
within and outside government) need to closely examine the universe of
hazmat from the perspective of risk to homeland security. While parties
may disagree as to what materials or quantities should or should not be
designated security sensitive, the SAFE Truckers Act provides much-
needed guidance on where the focus should be; namely, materials that
pose a significant risk due to potential for use in an act of
terrorism. We believe that all parties will agree that items like
paint, perfume, and soft drink concentrate do not fall within the
criteria. ATA is pleased that the SAFE Truckers Act provides that the
designation of materials as security sensitive shall be finalized only
after notice and opportunity for public comment.
If screening is still deemed necessary for drivers who transport hazmat
that is not a security sensitive material, then it should be name-based
instead of fingerprint-based.
TSA designed the current hazmat background check program to be
fingerprint-based, although the terrorist databases and watch lists are
populated with names only and the criminal history records databases
can be searched using names (as evidenced by the National Instant
Criminal Background Check System ("NICS") utilized to check the
criminal backgrounds of gun purchasers). This requirement has added
significant costs: both direct costs in terms of fees charged to offset
the costs of collecting and processing fingerprints ($94 in the
majority of states) and indirect costs in terms of driver time off work
(a full day off in some states, such as Montana, with limited
fingerprint collection centers). These costs and the added
inconvenience to drivers - not the prospect of being found to be a
terrorist - are dissuading more and more drivers from obtaining
HMEs.\1\
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\1\To our knowledge, the only publicly available numbers for the
HME background check program from TSA were contained in a November
report to Congress required by the highway bill. As of November 2005,
TSA stated they had processed 88,782 applications nationwide.
Conservatively assuming the program really got started on May 31, 2005
(when it became effective for renewals and transfers as opposed to the
January 31, 2005 date for new applicants), the TSA number projects to a
monthly average of 17,800 applications and 213,600 per year. Over 5
years, the projected number of applications is 1.068 million -- far
short of the 2.7 million HME drivers that TSA stated existed prior to
commencement of the background check program.
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The SAFE Truckers Act properly focuses a fingerprint-based
background check on designated security sensitive materials. The
industry can accept reasonable costs associated with this risk-based
approach, requiring a fingerprint-based check. However, ATA recommends
that the SAFE Truckers Act also include provisions to eliminate the
fingerprint-based screening for hazmat that is not security sensitive
and, if any background check is retained, that it be limited to name-
based screening. Name-based screening would eliminate the need to
travel great distances to submit fingerprints and should not cost more
than a nominal fee, if anything (TSA has conducted numerous name-based
checks of individuals, including the 2.7 million HME holders, without
charging additional fees). The industry does not need a security
sensitive permit program on top of preserving the current hazmat
background check program as is.
Suggested Improvements to the SAFE Truckers Act
ATA is encouraged by the introduction of the SAFE Truckers Act.
With some suggested modifications, the SAFE Truckers Act can first and
foremost address specifically identified risks to homeland security
posed by transportation of security sensitive materials without unduly
burdening those that rely on the efficient transportation of hazmat
that does not pose a significant risk. ATA looks forward to working
with the Members of this Subcommittee to enact a bill the trucking
industry can fully support.
The security sensitive material permit program must modify and replace
part of the existing hazmat background check program - not simply
create an additional program.
ATA's support of the bill presumes that the legislation will be
modified during Subcommittee deliberations to address some of the
industry's substantial concerns. The primary concern, as mentioned
before, is that the fingerprint-based background check required for a
security sensitive material permit should replace - and not simply be
in addition to - the current background check required under 49 U.S.C.
5103a. Simply put, the States should be prohibited from requiring a
fingerprint-based background check to obtain a simple HME. The federal
government should be responsible for screening and permitting of
individuals transporting security sensitive materials.
The security sensitive material permit program should be seamlessly
integrated into a global screening solution.
This Subcommittee has oversight of a number of security programs
that require threat assessments of individuals. In fact, this
Subcommittee recently worked on comprehensive port security legislation
that affects truck drivers, including addressing issues with the
Transportation Worker Identification Credential ("TWIC"). These
security programs should not be conceived and then administered in a
vacuum. They should be integrated and coordinated in a manner to avoid
duplication to the maximum extent possible.
Specifically, ATA is encouraged by the language in the SAFE
Truckers Act that calls for integration of the security sensitive
material permit with the TWIC. Yet even so, ATA has reservations that
the legislation may be unnecessarily complicating matters. Because the
disqualifying criteria for the security sensitive material permit and
the TWIC card are identical, it seems that the TWIC, without further
modification, could serve as the security sensitive material permit.
The TWIC would indicate that an individual has successfully completed a
fingerprint-based security threat assessment (a requirement for the
security sensitive material permit). Additionally, since security
sensitive materials will in all likelihood be a subset of hazmat, the
individual will also have a CDL with a HME. These documents would be
sufficient to demonstrate to enforcement officials that a driver is
authorized to transport security sensitive materials from both a safety
and a security perspective.
The intent of the TWIC was to establish one background check and
one credential for transportation workers. Trucks connect various
secure areas and facilities. Wherever possible, the screening and
credentialing programs for access to these secure areas, and for
transportation of security sensitive materials, should be brought
within one check resulting in one credential. The time to address this,
with respect to the security sensitive material permit, is now. Past
experience has shown that we cannot rely on DHS or TSA to achieve this
on their own accord. The same TWIC that will demonstrate a truck driver
has successfully been screened for access to maritime ports should also
serve, in conjunction with the HME, as the security sensitive material
permit.
Uniformity is necessary to achieve a consistent level of security
nationwide.
The industry has another concern that impacts the SAFE Truckers Act
and other security screening programs - the need for uniformity.
Homeland security is one of the preeminent federal interests.
Permitting states to implement their own screening requirements not
only leads to confusion and greater costs but also jeopardizes the
collective security of the whole. Within the current hazmat background
check program, the state of New York requires a check of the state's
criminal history records databases in addition to the federal criminal
history records. If the state of New York has properly uploaded all its
appropriate criminal history records into the federal database, there
is no need to check the state databases in addition to the federal
database. However, if the state of New York has not uploaded all of its
data, then the other states (which rely on the federal database when
conducting criminal history record searches) are put at risk. For
example, an individual applying in Connecticut could be granted a
security sensitive material permit where that same individual could be
denied if applying in New York, since New York had information it did
not share with the federal database. This is no way to provide security
nationwide. The solution is to preempt states from adding additional
screening requirements where the federal government has already set in
place a program and encourage the states to timely upload the
appropriate data into the federal databases.
Notification to the employer is necessary to ensure the most effective
security.
Congress has recognized that failure to notify employers of the
final security threat assessment determination under the current hazmat
background check program creates an unnecessary risk. Therefore, as
part of the highway reauthorization bill, Congress enacted a provision
authorizing notification of the employer when TSA has finally
determined that a driver poses a security risk warranting denial of the
HME. The same rationale that led to Congressional action holds true for
the security sensitive material permit program proposed under the SAFE
Truckers Act. We strongly encourage the Subcommittee to restore the
employer notification requirement in the event a driver is finally
determined to pose a security risk warranting denial of a security
sensitive material permit.
Conclusion
Mr. Chairman and members of the Subcommittee, I thank you for the
opportunity to share with you the trucking industry's views on the
current hazmat background check program and the recently introduced
SAFE Truckers Act. If the security sensitive materials permit program
established by the bill replaces the current fingerprint-based
screening of individuals transporting any hazmat, the trucking industry
enthusiastically supports the legislation. If DHS and TSA truly are
committed to a risk-based approach to security, then the SAFE Truckers
Act grants them the authority to act on that commitment. ATA
appreciates the efforts by this Subcommittee to achieve security
rationally and reasonably.
Mr. Pearce. Mr. Spencer, we have a requirement that each
presenter be better than the last. Mr. McClimon set the bar
pretty high.
Unfortunately, Ms. Hilton here is following two men. So it
should not be difficult.
STATEMENT OF TODD SPENCER, EXECUTIVE VICE
PRESIDENT, OWNER-OPERATOR INDEPENDENT DRIVERS
ASSOCIATION
Mr. Spencer. Well, all I have to do is look both left and
right and know I am in a heap of trouble.
Anyway, good morning, Mr. Chairman, members of the
committee. I very much appreciate the opportunity to be here
today to speak on H.R. 5604, the Screening Applied Fairly and
Equitably to Truckers Act of 2006. That legislation will
significantly improve an inefficient, overreaching system, as
well as provide a truly risk--based focus on the movement of
potentially dangerous materials in our country.
My name is Todd Spencer. I have been involved in trucking
for over 30 years, first as a truck driver and then as an
owner--operator; and I am here today as a representative of the
hardworking men and women in this industry, Small Business
Truckers and the Owner--Operator Independent Drivers
Association.
Our organization represents this group of people, and
trucking is an industry that is comprised mostly of small
business. Eighty percent of the trucks in the country are found
in fleets of 20 or less, so small business is very much the
backbone of our industry.
As you know, the PATRIOT Act, passed by Congress, contained
a provision requiring a background check for every driver that
has a hazardous materials endorsement. This has been a source
of great heartburn to our members and to our organization in
that it was very--it overreached in so many areas, while it
also missed in so many obvious areas to address the real
security issues for truckers.
The chief complaints that OOIDA hears about drivers about
the present system are focused on the excessive out--of--pocket
costs and potential of lost revenues caused by inefficiencies
within the system. In addition, the shortage of facilities,
lack of truck parking at facilities, available times of
operation for the facilities and the amount of time necessary
to get results are commonly voiced frustrations from drivers.
While we don't fault lawmakers or agencies for the rapid
response to the tragedy of 9/11, the background check
requirement for Hazmat drivers contained in the PATRIOT Act was
overly broad in its scope toward existing, veteran Hazmat
drivers, while it seriously missed the mark in addressing some
of the more obvious or likely ways a commercial vehicle could
be used to do great harm.
The typical owner--operator member of our organization has
nearly 20 years of experience driving trucks. They are proven
professionals, driving safely and responsibly, meeting the
needs of our Nation. While only about 12 percent of them haul
hazardous materials exclusively, roughly 70 percent of them
currently have Hazmat endorsements for the occasional load that
will come up that they will need to be in a position to haul.
Well over 2 million of these Americans and their fellow drivers
will have to undergo background checks when their current
commercial driver's licenses come up for renewal next time and
at subsequent renewals thereafter.
OOIDA does not believe these veteran drivers are likely to
turn into terrorists nor do we believe that most of the Hazmat
cargoes they transport would have any appeal to terrorists.
OOIDA strongly supports the concept of narrowing TSA's security
threat assessments to focus on individuals wishing to haul
hazardous materials that have been deemed as security sensitive
by amending the PATRIOT Act's Hazmat background check
requirements.
OOIDA appreciates that in a time when there is a constant
tug between homeland security and individual privacy and
regulatory burden, this legislation acknowledges that it is as
important for government to make its best efforts to narrow and
focus its efforts to those areas where there may be a true
homeland security threat and to those persons who have access
to security--sensitive areas or materials, to delve into a
person's privacy the minimal amount necessary by identifying
those hazardous materials that are security sensitive. There is
no longer a security reason to continue background checks on
drivers of nonsecurity--sensitive hazardous materials.
The association also appreciates the effort made in this
bill to resolve overlapping background check requirements of
truck drivers. A truck driver who has provided certain
information for one background check should not have to go
through an entire new process, such as being fingerprinted,
facing more waiting time and more fees.
Congressman Carnahan recently introduced H.R. 5560, the
Professional Truck Driver Background Check Efficiency Act. That
bill serves as a complement to the SAFE Truckers Act by
providing TSA strong incentives to ensure efficiency and making
sure that this system works the way that it should.
The task force on highway safety is also an excellent
initiative. OOIDA suggests the task force scope be expanded to
study the homeland security risks to trucking in general. Other
security threats already exist in the opportunities terrorists
have to steal large trucks, to gain access to food or sensitive
cargo. The most--the biggest vulnerability for truckers, and it
is a nightly one, is insufficient places for them to park their
trucks safely. Terrorists are not going to get a CDL and
security--sensitive hazardous material permit if such vehicles
are simply sitting ducks in so many places in the country.
Although there are some significant security
vulnerabilities in trucking, the SAFE Truckers Act initiates
steps towards making the transport of hazardous materials by
truck more secure overall without adding unnecessary burdens
and expenses. We very much appreciate this committee's
interest, look forward to supporting this legislation and
seeing it come into law. Thank you.
Mr. Linder. [Presiding.] Thank you, Mr. Spencer.
[The statement of Mr. Spencer follows:]
Prepared Statement of Todd Spencer
Good morning Chairman Lungren, Congresswoman Sanchez, and members
of the Subcommittee. Thank you for inviting me to testify regarding
H.R. 5604, the Screening Applied Fairly and Equitably to Truckers Act
of 2006. That legislation that will significantly improve an
inefficient, overreaching system as well as provide a truly risk-based
focus on the movement of potentially dangerous materials in our
country.
My name is Todd Spencer. I have been involved with the trucking
industry for over 30 years, first as a truck driver and an owner-
operator; and then as a representative of the hardworking, fiercely
patriotic Americans behind the wheel of commercial motor vehicles. I am
currently the Executive Vice President of the Owner-Operator
Independent Drivers Association (OOIDA).
Established in 1973, OOIDA is the national trade association
representing the interests of independent owner-operators and
professional drivers on all issues that affect small business truckers.
The more than 140,000 members of OOIDA are small business men and women
in all 50 states who collectively own and operate more than 230,000
individual heavy-duty trucks. Small business is the backbone of
trucking with 80% of the industry comprised of fleets of 20 or fewer
trucks.
The Association actively promotes the views of small business
truckers through its interaction with state and federal government
agencies, legislatures, the courts, other trade associations, and
private entities to advance an equitable business environment and safe
working conditions for commercial drivers. The hazardous materials
endorsement and the Transportation Security Administration's security
threat assessment process directly affects owner-operators, motor
carriers and professional drivers, including members of OOIDA.
As you know, the USA PATRIOT Act of 2001 contained a provision
requiring background checks for individuals operating motor vehicles
transporting hazardous materials. The TSA took on this responsibility
initiating a security threat assessment requirement that has caused a
considerable number of problems for state administrators, the trucking
industry and the shipping community that depends on that industry.
Initially the TSA did a name based check on all present hazmat
endorsement drivers, but have since instituted an arduous threat
assessment process that has required a new system to be put in place by
state governments and federal contractors to complete fingerprinting
and background checks.
Small business truckers believe that the security threat assessment
process that has been put in place by the TSA for general hazmat
endorsements are an overreaching solution to a problem that has not
been fully identified, and for which truckers are saddled with
unnecessary burdens and expenses. As has been stated by a variety
witnesses at previous hearing hold before your subcommittee on this
topic, the system that the TSA has put in place is wrought with
inefficiencies.
TSA's background check/security threat assessment system is
cumbersome and problematic for all involved parties. The chief
complaints that OOIDA hears from drivers about the present system are
focused on the excessive out-of-pocket costs and potential of lost
revenue caused by inefficiencies within the system. In addition, the
shortage of facilities, lack of truck parking at facilities, available
times of operation for the facilities and the amount of time necessary
to get results are commonly voiced frustrations.
Focusing TSA on Security Sensitive Hazardous Materials
While we do not fault lawmakers or federal agencies for their rapid
response to the tragedy of 9/11, the background check requirement for
hazmat drivers contained in the Patriot Act was overly broad in its
scope toward existing veteran hazmat drivers while it seriously missed
the mark in addressing some of the more obvious or likely ways a
commercial vehicle could be used to do great harm.
The typical owner-operator member of our organization has nearly
twenty years of experience driving trucks. They are proven
professionals, driving safely and responsibly meeting the needs of our
nation's citizens. While only about 12% of them haul hazardous
materials exclusively, roughly 70% of them currently have hazmat
endorsements, primarily to keep their load prospects open. Well over 2
million of these Americans and their fellow drivers will have to
undergo background checks when their current commercial drivers
licenses (CDLs) come up for renewal next and at subsequent renewals
thereafter.
OOIDA does not believe these veteran drivers are likely to turn
into terrorists nor do we believe that most of the hazmat cargoes they
transport would have any appeal to terrorists. By requiring them to
undergo TSA background checks, scarce resources in time and money are
simply wasted with no corresponding benefit in reducing the likelihood
of a terrorist incident.
OOIDA strongly supports the concept of narrowing TSA's security
threat assessments to focus on individuals wishing to haul hazardous
materials that have been deemed as security sensitive by amending the
Patriot Act's hazmat background check requirements.
A general hazardous materials endorsement for loads that are not
classified as "Security Sensitive" should be preserved in the CDL
licensing process for truck drivers. Hazardous materials that are not
deemed to be security sensitive do pose safety risks to truck drivers,
dockworkers, the general public and first responders. OOIDA believes
that along with mandated training and increased testing requirements
for those wishing to obtain a Commercial Drivers License, compulsory
training in the handling and transporting of non-security sensitive
hazardous materials must also be a part of the licensing/endorsement
process.
On behalf of the members of OOIDA and truckers across the country,
I want to thank Mr. Lungren, Ms. Sanchez, Mr. Thompson, and other
members of the Homeland Security Committee for introducing H.R. 5604,
the Screening Applied Fairly and Equitably to Truckers Act of 2006.
This legislation outlines a bold effort that is needed to bring
commonsense back into homeland security policies that apply to American
truck drivers. The SAFE Truckers Act will significantly improve a
system that has already created unnecessary expenses in time and money
for the federal government, state governments and thousands of
hardworking taxpayers.
The Screening Applied Fairly and Equitably to Truckers Act of 2006
OOIDA appreciates that in a time when there is a constant tug
between homeland security and individual privacy and regulatory burden,
this legislation acknowledges that it is important for the government
to make its best effort to narrow and focus its efforts to just those
areas where there may be a true homeland security threat; to just those
persons who have access to security sensitive areas or materials; to
delve into a person's privacy the minimal amount necessary to
accomplish the policy goal; and to vigorously protect the public
release of any person's private information. By identifying those
hazardous materials that are security sensitive, there is no longer a
security reason to continue background checks on drivers of non-
security sensitive hazardous materials.
The Association also appreciates the effort made in this bill to
resolve overlapping background check requirements of truck drivers. A
truck driver who has provided certain information for one background
check should not have to go through an entire new process, such as
being re-fingerprinted and facing more waiting time at processing
centers, or face the extra cost, to get very similar background check
for a different government agency.
Congressman Carnahan recently introduced H.R. 5560, The
Professional Driver Background Check Efficiency Act. That bill serves
as a compliment to the Safe Truckers Act by providing the TSA with
strong incentives to ensure that the security threat assessment systems
that they have in place are designed and implemented with the highest
degree of efficiency.
We want to thank the sponsors of Safe Truckers Act for including
provisions for appeals and waiver processes. Instituting an appeal
process is very important for persons to prove whether negative
information collected during the background check pertains to them and
whether they have been a victim of mistaken identity or identity theft.
Instituting a waiver process is very important to give persons who have
turned their life around an opportunity to prove that they are not a
security threat.
OOIDA encourages the committee to ask its proposed Task Force on
Disqualifying Crimes to produce its recommendations in a format that
recognizes that different states have different definitions of various
crimes. What is a felony in one state may be a misdemeanor in another.
What is murder in one state may be manslaughter in another. With such
differences in the same named crime, a trucker in one state may be
disqualified while a trucker who committed the same act in a different
state may be approved. The list of disqualifying crimes produced by the
task force should really be a list of elements of crimes or
combinations of elements of crimes. The task force or agency will need
to assemble a reference of different states' crimes to make such a
determination.
The Task Force on Highway Safety is also an excellent initiative.
OOIDA suggests the task force's scope be expanded to study the homeland
security risks to trucking in general, not just those hauling security
sensitive information. Other security threats already exist in the
opportunities terrorists have to steal large trucks, gain access to our
food supply or acquire advanced technologies. As we say, if you bought
it, a truck brought it. The vulnerability and need for security of all
trucks on the road is one that has received scant attention from
Homeland Security. We have long said that in the many areas where there
is insufficient truck parking, truckers are forced to improvise by
finding parking in on-ramps, exit ramps, the side of the road and out--
of-the-way industrial areas that close for the night. These are just
the kind of places that make truckers vulnerable. Terrorists are not
going to get a CDL and security sensitive hazmat permit if such
vehicles are "sitting ducks" in so many places in the country.
Finally, until the TSA has the ability to complete or assess
background checks on Mexican, Canadian and other truck drivers of
foreign origin that are at the very least as stringent and
comprehensive as those being completed on American drivers, foreign
truck drivers should not be provided with clearance to haul security
sensitive hazardous materials. OOIDA sees no rationale, from a
security, fairness or public policy standpoint, to give persons from
foreign countries any leniency to this directive though in past
rulemakings TSA has shown a willingness to do just that. OOIDA
understands that Canada may have a similar security check in place for
its drivers. But an analysis must be made, with public comment,
comparing the two systems before the TSA can determine that the
Canadian system is an adequate substitute for U.S. requirements. OOIDA
is unaware of any such system in Mexico, and if there were, would
consider its accuracy suspect.
Conclusion
Although there are some significant security vulnerabilities in the
trucking industry, the SAFE Truckers Act initiates steps towards making
the transport of hazardous materials by truck more secure overall
without adding unnecessary burdens and expenses to the federal
government or commercial motor vehicle operators. Focusing the
resources of the Transportation Security Administration on ensuring
that individuals with red flags in their backgrounds are not being
afforded access to haul security sensitive hazardous materials is an
excellent starting point. There are intensive background check/security
assessment processes for truck drivers already being utilized by other
federal agencies. Integrating those background checks with the TSA and
allowing agencies to look to one database for drivers with security
sensitive clearance is consistent with both the principles promoted by
the 9/11 Commission and the mandates of the highway bill that passed
last year. It will also save the government and private individuals
both time and money by improving efficiency.
Hazardous materials that are not deemed to be security sensitive do
pose safety risks to truck drivers, dockworkers and first responders. A
general hazardous materials endorsement for loads that do not qualify,
as "Security Sensitive" should be maintained in the licensing process
for truck drivers. Along with mandated training and increased testing
requirements for those wishing to obtain a Commercial Drivers License,
compulsory training in the handling and transporting of non-security
sensitive hazardous materials must be a part of the licensing/
endorsement process.
Chairman Lungren, Congresswoman Sanchez, and members of the
Subcommittee, thank you for providing me with this opportunity to
testify on behalf of the members of the Owner-Operator Independent
Drivers Association and thank you for introducing the SAFE Truckers Act
of 2006.
I look forward to answering questions from the members of the
Subcommittee.
Mr. Linder. Ms. Hilton, I am going to ask you to hold. We
have less than 10 minutes left to get to a vote. We will recess
the committee upon the call of the Chair. Thank you.
[Recess.]
Mr. Lungren. [Presiding.] The Subcommittee on Economic
Security, Infrastructure Protection, and Cybersecurity will
come to order. I have been assured that it reflects on my
presentation that no one else is coming back. I apologize to
the witnesses for not having been here earlier. We had a small
issue on the floor about the war in Iraq, and I was responsible
for handling the time, the remaining time--or the last hour,
which was this morning's hour.
We completed that, and the vote is taking place, and
because it is the last vote of the day, most Members are
endeavoring to return to their districts right now. So I will
endeavor to play the role of all the members here as we
continue.
And as I understand it, we have completed the testimony of
two of the panelists, and so now I would recognize Ms. Cynthia
Hilton, Executive Vice President of Governmental Affairs of the
Institute of Makers of Explosives to testify.
STATEMENT OF CYNTHIA HILTON, EXECUTIVE VICE
PRESIDENT OF GOVERNMENTAL AFFAIRS, INSTITUTE OF MAKERS OF
EXPLOSIVES
Ms. Hilton. Thank you so much, Chairman Lungren. I
appreciate the opportunity to testify important issues
surrounding security clearances of people authorized to
transport by motor vehicle certain security--sensitive
hazardous materials in commerce. My testimony is presented on
behalf of the American Chemistry Council, American Pyrotechnic
Association, the Chlorine Institute, the Institute of Makers of
Explosives, the National Association of Chemical Distributors,
the National Industrial Transportation League, the Nuclear
Energy Institute, the Fertilizer Institute, and as of this
morning, the American Petroleum Institute.
We are representative of the shipper community. Since
virtually all hazardous materials shipments move at some point
by motor vehicle, the industries we represent are dependent on
the availability of qualified drivers to safely and securely
move hazardous materials for manufacturing use. We have a long
history of proactive attention to the safety and secure
transportation of our products.
Transportation is both intermodal and international. We
believe that the current HME process warrants reform. You are
to be commended for your leadership and attention to this
important issue. Not all placard and shipments of hazardous
materials present security sensitivities. The current suite of
disqualifications may be too sweeping with the consequence that
some persons who do not present a terrorist threat are kept
from gainful employment.
We fully support efforts to integrate, streamline and rank
security credentialing requirements so that individuals will be
subject to no more than one fingerprint--based credential, key
to the level of security clearance their job requires. On this
latter point, we understand redundancy. Security assessment is
a goal of this legislation; however, in its current form, the
objective is not quite achieved.
Within DHS alone, we currently count four fingerprint--
based security assessments that could apply to drivers of
hazardous materials. This legislation proposes a fifth
credential for a subset of that driver population. Without
ranking these credentials, opportunities for cost savings are
lost, opportunities for misuse increase, and instances of
noncompliance are likely to rise due to confusion about the
scope of various credentials.
Without losing the momentum created by this legislation, we
recommend that TSA security credentials for drivers of
hazardous materials be separated from DOT and State licensing
to operate vehicles or to demonstrate knowledge of hazardous
materials regulations; that the security screen to attain an
HME be reduced to a records check; that the scope of the TWIC
be modified to include drivers transporting security--sensitive
materials; that the TWIC allow holders all the privileges
afforded holders of an HME, plus those for transporting
security--sensitive materials; that all of DHS's fingerprint--
based clearances be ranked to determine which standards are
higher, and then allow the individual with the higher--rank
clearance the rights afforded lower--rank clearance or, if
deemed equivalent, to consolidate the security clearances into
one program, which would be the initialSec. sion of the TWIC;
and finally, that the legislation explicitly provide that non--
Federal transportation security credentials be preempted.
A couple of words about our concerns of the penalty
provisions of the legislation. We question the stringency of
the penalties given other criminal and civil statutes in view
of the fact this is a credentialing bill and that the most a
shipper can reasonably do is verify the credential of the
receiving driver.
We strongly recommend that terms used in the bill to
signify aggravated violations or crimes be defined to ensure
equal application of the law. We strongly recommend that the
subcommittee reinstate, knowingly, a standard of liability for
civil violations and a willful standard for criminal acts.
In closing, we would be remiss if we did not thank you for
your understanding of our concerns about a statutorily dictated
list of security--sensitive materials. History has shown
materials of interest to terrorists has changed over time. It
is appropriate for DHS to have the flexibility to adjust
through rulemaking materials that would be subject to these
requirements.
And finally, we have submitted an attachment to our
testimony with specific comments and recommendations for
refinements to the bill. We ask the committee to consider these
recommendations.
This concludes my testimony. I would be happy to answer any
questions.
[The statement of Ms. Hilton follows:]
Prepared Statement of Cynthia Hilton
Chairman Lungren, members of the Subcommittee, I appreciate the
opportunity to testify on the important issues surrounding security
clearances of persons authorized to transport by motor vehicle certain
security sensitive hazardous materials (SSHM) in commerce.
My testimony is presented on behalf of the American Chemistry
Council, the American Pyrotechnic Association, The Chlorine Institute,
the Institute of Makers of Explosives, the National Association of
Chemical Distributors, The National Industrial Transportation League,
the Nuclear Energy Institute, and The Fertilizer Institute. We are
representative of the shipper community. Since virtually all hazardous
materials shipments move at some point by motor vehicle, the industries
we represent are dependent on the availability of qualified drivers to
move, safely and securely, the hazardous materials we manufacture and
use. We have a long history of proactive attention to the safe and
secure transportation of our products - transportation that is both
intermodal and international.
Our efforts to address transportation security concerns have been
aided by government requirements to assess vulnerabilities and to take
appropriate corrective actions to bolster the security of our
operations. Private efforts to vet the suitability of drivers and other
transportation workers stood to be enhanced by government oversight
that could assess criminal record databases and tap intelligence about
security risks. Before the events of September 11, 2001, the Department
of Defense and Nuclear Regulatory Commission were engaged in these
vetting operations. Since September 11th, 2001, however, we have seen a
plethora of government-mandated security clearance requirements that
are duplicative for individuals, unduly restrictive in their
disqualifications, and unnecessarily costly. We believe that
improvements are warranted.
The legislation we have been asked to comment on today proposes to
add yet another fingerprint- based security credential to those already
in existence. Within the Department of Homeland Security (DHS) alone, a
driver could potentially be subject to the Transportation Security
Administration's (TSA) threat assessment program for commercial drivers
of hazardous materials (HME), to TSA's transportation worker
identification credential (TWIC), to TSA's criminal history records
check for unescorted access to security identification display areas,
and to the Customs and Border Protection's free and secure trade
clearance to expedite border crossings of trucks that provide security
information in advance. The creation of the security sensitive
materials permit for essentially the same population frustrates
expectations that this legislation would simplify security clearance
requirements for drivers. We would like to suggest an alternative means
to accomplish the goal to create a fingerprint-based security
credential for security sensitive materials, as well as recommendations
to further simplify driver background checks generally, and to identify
aspects of this legislation deserving of support.
TWIC
We are struck with the redundancy suggested by the pending
legislation. The proposal would require a new permit to transport SSHM
by motor vehicle, ostensibly indicating that the recipient is being
held to a higher standard than the holder of an HME. However, the
legislation fails to identify what standards would be used by DHS to
disqualify a permit applicant, leaving this critical determination up
to the discretion of the department. At the same time, the legislation
provides that individuals holding a TWIC would be deemed to have met
the security clearance requirements of the new permit. However, the
disqualifications underpinning the HME are the same as used in the
TWIC. This legislation unnecessarily complicates the security vetting
process without enhancing security or providing relief to HME drivers
of non-SSHM. We strongly recommend that the scope of the TWIC be
broadened to simply provide that a holder of a TWIC is also eligible to
transport SSHM by motor carrier if the holder is otherwise qualified to
operate a commercial motor vehicle. We also recommend that the HME
threat assessment required by 49 U.S.C. section 5103a be converted to a
records-based, not a fingerprint-based, security check. This change
will provide appropriate regulatory relief for drivers transporting
placarded shipments of the hazardous materials that are not deemed
SSHM. Since the TWIC requires the more stringent fingerprint-based
security check, it should be made clear that a holder of a TWIC, who is
otherwise qualified to operate a commercial motor vehicle, should be
eligible to apply for an HME without being subject to the section 5103a
threat assessment.
The promise of the TWIC was that it would be the sole credential
necessary for transportation workers subject to security assessments.
The card would establish identity and would be issued after a
determination that the cardholder did not present a security risk. To
propose anything in addition is to penalize legitimate, qualified
workers.
Penalty Provisions
The penalty provisions in the legislation were initially lifted in
whole cloth from federal hazardous materials transportation law.
Despite some changes, we remain concerned about the effect of these
provisions. First, this is a credentialing statute, not a statute
directed at harms that could be caused by individuals irrespective of
whether they do or do not possess a TWIC/SSHM credential. These later
violations and criminal acts are the subject of other federal statutes
and are unnecessary here.
We understand that a justification for higher civil penalties stems
from the provision that makes it a violation to offer or cause security
sensitive materials to be transported by motor vehicle if the operator
does not hold a valid TWIC/SSHM credential. Even in instances where
security sensitive material is offered or caused to be transported by a
driver not holding a valid TWIC/SSHM credential, the penalty should be
in the thousands, not tens of thousands of dollars. Keep in mind that
the offeror only has the wherewithal to check the credential of the
driver initially receiving the shipment. The security statuses of
individuals who may subsequently handle the shipment for a carrier are
beyond the offeror's control. Additionally, each day the violation
continues is a separate offense subject anew to accumulating fines. The
penalty caps should be limited accordingly.
A number of terms are used in the penalty provisions to trigger
more severe consequences. These terms - "bodily injury", "serious
illness", "severe injury", and "substantial destruction of property" -
are undefined. Without definition, the interpretation of these board
terms will likely result in unequal application of the law and justice
will not be served.
Finally, the penalty provisions have been stripped of commonly
accepted standards of culpability leaving a strict standard of
liability. The Subcommittee should reinstate a "knowingly" standard of
liability for civil violations and a "willfully" standard for criminal
acts.
Preemption
The proposal's definition of "commerce" suggests that the SSHM
credential is to apply to motor carrier movements of SSHM in
intrastate, interstate and foreign commerce. However, neither this
credential nor the TWIC is given preemptive effect over non-federal
transportation security credentials. We recommend that the legislation
explicitly provide that non-federal transportation security credentials
for activities covered by the TWIC (and by extension the motor carriage
of SSHM) be preempted. No state or locality can possibility have more
resources or capability than the federal government to assess threats
and determine protective actions for a network of critical
infrastructure that operates nationwide. A panoply of non-federal
credentials is more likely to lead to confusion and non-compliance with
federal requirements. All additional or more stringent non-federal
security credentialing requirements will do is place an unjustified
burden on legitimate transportation workers.
Provisions Deserving Support
Determination of Security Sensitive Materials: We fully support the
provision that would task DHS with determining by notice and comment
rulemaking to determine the type and quantity of materials to be
designated "security sensitive". History has shown that materials of
interest to terrorists have changed over time. It is appropriate for
DHS to have the flexibility to adjust through rulemaking materials that
would be subject to these requirements.
Elimination of State Administrative Middleman: We support
provisions in the bill that remove the credentialing of SSHM drivers
from the commercial vehicle licensing process. State governments do not
control the federal databases through which security checks are vetted.
Memorandum of Understanding: We support the provision directing the
Secretaries of DHS and the Department of Transportation to enter into a
memorandum of understanding about the implementation of transportation
credentialing requirements.
Task Force on Disqualifying Crimes: We support the establishment of
a task force to review the appropriateness of current disqualifying
crimes. In particular, we believe that the stringency of some automatic
life-time disqualifications warrant review when the triggering event is
a non-violent felony.
Task Force on Redundant Checks: We fully support efforts to
integrate, streamline and rank security credentialing requirements so
that individuals will be subject to no more than one finger-print based
credential based on the level of security clearance their job requires.
Other Recommendations
I would like to submit for the record a document that more fully
identifies and describes recommended modifications to the pending
legislation.
This concludes my testimony.
Mr. Lungren. Thank you.
And I thank all of you for your testimony. I know that a
number of you have raised in your written testimony and in your
oral comments concerns about the potential redundancy of the
bill with the current fingerprint--based checks required--
already required.
Mr. Lungren. [Continuing.] I can just assure you it is the
intent of this committee to resolve that problem. There are
certain issues we have to address initially in writing the bill
that caused us to write it in the way we did, but we certainly
not only agree with your suggestions but it is our intent to do
that.
Let me ask the three of you, the TSA stated at the end of
their prepared testimony that the current HME system is, quote,
unquote, working well. Is this opinion shared by all three of
you representing your different interests?
Mr. McClimon. Chairman, I think it is challenging at best.
I would not use the words ``working well.'' There is in various
States a lot of time and certainly expense involved. I know in
our case that over a 5--year period it will cost our company
$1.5 million or $300,000 a year in expense as well as just some
lost time and work, so I would not say that it is working well.
Mr. Lungren. Mr. Spencer.
Mr. Spencer. I can concur. Only when I talk about the cost
to our company, I am talking about to an individual truck
operator, and that is what most of trucking is.
We have mentioned here at the hearing the costs that are
associated with the HME background check, which are
significant. Now we are looking at the cost for a TWIC card on
top of that. But those are just a very small portion of the
costs. Because, for most truck operators, our members, they are
going to have to close their business, shut their business down
for at least a full day to accomplish this. So they can lose
between $500 and $1,000 per day per truck just shutting down
that one day.
They also have the expense of traveling to one of these
facilities that I mentioned in my testimony that generally is
not trucker--friendly and for the most part it is not really
people--friendly and that hours are very, very limited. They go
through that ordeal.
And for a trucker, for a truck driver, all the time that is
associated with this is on--duty time. It must be logged and
charged against the available hours you can have to work for
that week.
I am thinking the TSA gentleman said there were over a
hundred sites now. We have one member that the closest site to
get one done was 170 miles from his house. This is a tremendous
obstacle. And that particular member had had numerous
background checks done over the past 10 years, been
fingerprinted a half a dozen times for DOD, DOE. Talk about
redundancy. The normal person would scream.
Mr. Lungren. Ms. Hilton.
Ms. Hilton. I would like to align myself with the comments
of these gentlemen and just point out that it is too broad. It
is too broad in a number of areas, too broad in materials it
covers, too broad in some of its disqualifications, and it is
unnecessarily complicated with the opportunity to engage States
as middlemen in this matter.
I mean, this is a security credential. This is something
that the Federal Government knows far more about who those
individuals are, and it is hard for us to understand how States
add to that process.
Mr. Lungren. Again, I was not here for the oral testimony,
but one of the concerns that TSA raised in their written
comments was that, in the end, trucking companies would still
require their drivers to obtain the SSmat permit, and so it
really may not make any difference. We are going through a big
process to try and divide those things out, and trucking
companies are just going to require them all to get it anyway.
Can anybody address that concern?
Mr. McClimon. I think the concern is just the repetition of
activity that needs to take place. So what we want to try to do
or are hoping this bill does is cut through some of that red
tape and just make the whole process easier for our employees
and, thus, for our customers.
Mr. Lungren. Our concept was there is a difference between
Hazmat and security--sensitive materials and that, because
there is a difference, presumably you wouldn't have all of your
drivers required to have the security--sensitive material
credential. If that is not the case, then we are going through
a whole lot of process for no need whatsoever.
Ms. Hilton. Can I just make an observation here? One of the
points we are trying to make in our testimony is that there are
a number of fingerprint--based credential programs that are run
by TSA, and one of the benefits of this legislation is it is
trying to tell people you need to look at that and rank them.
That is the term that we use.
When you look at them, either they turn out to be the same
standard, in which case you need to eliminate them and rely on
one thing--and we use the term TWIC because that was the
promise of what the TWIC was--or if some of those credentials
are in fact justified to be some kind of higher standard, then
you need to prioritize them and give people with the higher
ones rights over all the lower ones.
At the end of the day, whether--you asked, are we doing
anything here? This is incredibly important. The goal that we
need to be fixed on is, at the end of the day, people will have
one credential.
Mr. Lungren. We can have one credential. You can have a
credential that has different rankings on it. I mean, you can
have one document or one card, but we could have a card that
has different elements on it which would show that you have got
an SSmat versus a Hazmat rating and so forth.
I just happen to think that it is silly for us to consider
security--sensitive materials the same as Coca--Cola syrup.
Ms. Hilton. We all agree.
Mr. McClimon. We all agree on that.
In our testimony we said that, that we handle 2,000
hazardous material shipments a day, but only 16 of those would
be what we call supersensitive shipments.
Mr. Spencer. To go along in regard to the individual
drivers, while among our membership 70 percent have hazardous
materials endorsements but only 12 percent haul hazardous
materials on a regular basis, and of those they won't even be
the kind that would be security sensitive all the time. So we
would be talking about making this change would simplify, would
trim the process down and make it much more focused on where
the real security issues are.
Mr. Lungren. Let me just say sometimes we have to explain
why we come up with new legislation. We have to explain to
constituents why it makes sense in short order, knowing that we
still have a lot to do in terms of firming this bill up. But
you recognize what we are trying to do. You have general
agreement with what we are trying to do. How would you
succinctly state that this would improve the situation with
respect to the folks that you represent, in a way that I can
make it understandable for other members who can make it
understandable for their constituents? I call it the town hall
test. You explain it at a town hall you are having so people
say, yeah, that makes sense.
Mr. Spencer. From our perspective it would significantly
decrease the economic burden and sort of the hassle factor for
commercial truck drivers that work in commerce, while it also
would allow the security agency that is supposed to be focused
on security to focus on those particular commodities that
really do present a hazard and hopefully come up with some
recommendations that address our security vulnerabilities that
they haven't thus far, like the parking and--
Most drivers are most concerned with someone coming out and
putting a gun to their head and saying I am taking this load,
if they are actually hauling something that could do great
harm. That is the vulnerability they see. And it continues
every night. Drivers struggle to find places to park safely.
Ms. Hilton. I would just say that what we have heard is,
again, on this redundancy thing, it may have been brought to
your attention that just in the last month there has been a
final rule at TSA about new fingerprint base checks if you go
into an airport facility, and the TWIC just came out for port
facilities. So there is this seeming proliferation of these
requirements.
From everything that we have heard from your staff and what
your comments are, that at the end of the day the goal of this
legislation is going to be to eliminate that redundancy. That
is incredibly important.
Again, some of us spoke to the need to include a preemption
factor here. I like to think --- I don't know how you are if
you lose your credit card, but I am one of these not so smart.
I only have my one credit card. Because if I lose it, I want to
able to report my one card, not the 56 cards.
If we don't somehow bring this back to a more reasonable
level, I think people--do you every day get up and check the 50
cards you have in your wallet? Maybe not. We need to get it
back to a little more reasonable--
Mr. Lungren. My wife doesn't allow me to have 50 cards. If
I lose my credit card, I call her and say help.
Ms. Hilton. Smart woman.
Mr. Spencer. I can add on to that comment, that thought
just a little bit, but our organization is very concerned about
privacy and about security of information, and we are very
concerned with the proliferation of entities that feel that
they are entitled to have that personal information.
We have talked about credit cards and things like that.
Just last week I got a letter from the Department of Army
advising me that my records were included in those that were
burglarized from the VA employee's house.
Generally I wouldn't even had the courtesy of anybody
notifying me. But I have learned through the years that if you
minimize the places where your information is, you also
minimize the opportunity for it to be used in ways you don't
want.
Mr. Lungren. I just wanted to tell you, since you just told
me that, I know approximately how old you are. It was only
after a certain year. You just revealed something to me in that
statement.
The other thing that I have been concerned about in this
entire effort that we have in our response to the war on terror
is the balance. And if we decide that there are certain
disqualifiers with respect to drivers who would be driving SS
material, that may be different than what we do with those who
are disqualified from driving Hazmat, and why have the scope so
wide that you are denying some people an opportunity to work
when there is no necessity to do that?
Ms. Hilton. We agree.
Mr. McClimon. We agree.
Mr. Lungren. I am concerned particularly about some folks
in our communities who may run afoul of the law in their
younger years and are attempting to try and get a reasonable,
responsible job, of which trucking, if they have the skills, is
a good one; and to disqualify them unnecessarily is something I
do not want to do.
So that is one of the reasons I am strongly behind this
effort. Let's rationalize the process so that, in our effort to
respond to real concerns on terror, we are not letting the
terrorists win by causing us to overreact and harming our
people unnecessarily. That is a general feeling I have, but
specifically in this area I think it is important.
We have to understand the distinction between Hazmat and
SSmat or whatever we are going to call it--smatter. Try to
pronounce it in some way.
I just have to say your testimony is so complete I don't
have any more questions. I thank you for your presentation. I
thank you for your reaction to our bill. Any further thoughts
you have, if you would share with the committee, and we will on
a bipartisan basis take that and try to work that into our
considerations.
We hope to act on this bill quickly. We hope to get
something through our subcommittee, get it through the full
committee, get it on the floor and work with the Senate in
making some strides here. Because I happen to think it is
important for us to get the mechanism moving and remove the
duplicative effects that are out there already and introduce
this sense of rationality into distinguishing between two
different worlds. There is a difference from the world of SSmat
and Hazmat, and we ought to recognize it and put it into
practice.
With that, I thank you; and the hearing--there has got to
be some special words I use here at the very end. I tell you
that we are going to have additional questions perhaps for you
in writing, and we would ask if you would respond to those in
writing if you receive them. The hearing record will be held
open for 10 days.
Without objection, the committee stands adjourned.
[Whereupon, at 11:40 a.m., the subcommittee was adjourned.]