    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

                            CONCERNS WITH HAZARDOUS
                         MATERIALS SAFETY IN THE U.S.:
                        IS PHMSA PERFORMING ITS MISSION?

    =======================================================================

                                    (111-57)

                                    HEARING

                                   BEFORE THE

                                  COMMITTEE ON
                       TRANSPORTATION AND INFRASTRUCTURE
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               September 10, 2009

                                   __________

                           Printed for the use of the
                 Committee on Transportation and Infrastructure

                      U.S. GOVERNMENT PRINTING OFFICE
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                 COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                     JAMES L. OBERSTAR, Minnesota, Chairman

    NICK J. RAHALL, II, West Virginia,   JOHN L. MICA, Florida
    Vice Chair                           DON YOUNG, Alaska
    PETER A. DeFAZIO, Oregon             THOMAS E. PETRI, Wisconsin
    JERRY F. COSTELLO, Illinois          HOWARD COBLE, North Carolina
    ELEANOR HOLMES NORTON, District of   JOHN J. DUNCAN, Jr., Tennessee
    Columbia                             VERNON J. EHLERS, Michigan
    JERROLD NADLER, New York             FRANK A. LoBIONDO, New Jersey
    CORRINE BROWN, Florida               JERRY MORAN, Kansas
    BOB FILNER, California               GARY G. MILLER, California
    EDDIE BERNICE JOHNSON, Texas         HENRY E. BROWN, Jr., South
    GENE TAYLOR, Mississippi             Carolina
    ELIJAH E. CUMMINGS, Maryland         TIMOTHY V. JOHNSON, Illinois
    LEONARD L. BOSWELL, Iowa             TODD RUSSELL PLATTS, Pennsylvania
    TIM HOLDEN, Pennsylvania             SAM GRAVES, Missouri
    BRIAN BAIRD, Washington              BILL SHUSTER, Pennsylvania
    RICK LARSEN, Washington              JOHN BOOZMAN, Arkansas
    MICHAEL E. CAPUANO, Massachusetts    SHELLEY MOORE CAPITO, West
    TIMOTHY H. BISHOP, New York          Virginia
    MICHAEL H. MICHAUD, Maine            JIM GERLACH, Pennsylvania
    RUSS CARNAHAN, Missouri              MARIO DIAZ-BALART, Florida
    GRACE F. NAPOLITANO, California      CHARLES W. DENT, Pennsylvania
    DANIEL LIPINSKI, Illinois            CONNIE MACK, Florida
    MAZIE K. HIRONO, Hawaii              LYNN A WESTMORELAND, Georgia
    JASON ALTMIRE, Pennsylvania          JEAN SCHMIDT, Ohio
    TIMOTHY J. WALZ, Minnesota           CANDICE S. MILLER, Michigan
    HEATH SHULER, North Carolina         MARY FALLIN, Oklahoma
    MICHAEL A. ARCURI, New York          VERN BUCHANAN, Florida
    HARRY E. MITCHELL, Arizona           ROBERT E. LATTA, Ohio
    CHRISTOPHER P. CARNEY, Pennsylvania  BRETT GUTHRIE, Kentucky
    JOHN J. HALL, New York               ANH ``JOSEPH'' CAO, Louisiana
    STEVE KAGEN, Wisconsin               AARON SCHOCK, Illinois
    STEVE COHEN, Tennessee               PETE OLSON, Texas
    LAURA A. RICHARDSON, California
    ALBIO SIRES, New Jersey
    DONNA F. EDWARDS, Maryland
    SOLOMON P. ORTIZ, Texas
    PHIL HARE, Illinois
    JOHN A. BOCCIERI, Ohio
    MARK H. SCHAUER, Michigan
    BETSY MARKEY, Colorado
    PARKER GRIFFITH, Alabama
    MICHAEL E. McMAHON, New York
    THOMAS S. P. PERRIELLO, Virginia
    DINA TITUS, Nevada
    HARRY TEAGUE, New Mexico
    VACANCY

                                      (ii)

                                    CONTENTS

                                                                       Page

    Summary of Subject Matter........................................    iv

                                   TESTIMONY

    Porcari, Hon. John D., Deputy Secretary of Transportation, U.S.
      Department of Transportation, Washington, DC...................     9
    Santis, Lon D., Manager, Technical Services, Institute of Makers
      of Explosives, Washington, DC..................................    39
    Scovel, Hon. Calvin L. III, Inspector General, U.S. Department of
      Transportation, Washington, DC.................................     9

              PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

    Brown, Hon. Corrine, of Florida..................................    46
    Oberstar, Hon. James L., of Minnesota............................    51

                   PREPARED STATEMENTS SUBMITTED BY WITNESSES

    Porcari, Hon. John D.............................................    56
    Santis, Lon D....................................................    70
    Scovel, Hon. Calvin L. III.......................................    79

                           SUBMISSIONS FOR THE RECORD

    Porcari, Hon. John D., Deputy Secretary of Transportation, U.S.
      Department of Transportation, Washington, DC:
      Response to request for information from Hon. Napolitano, a
        Representative in Congress from the State of California:
        Safety and security of chlorine shipments....................    24
        Rail car placarding..........................................    29
      Response to request for information from Hon. Oberstar, a
        Representative in Congress from the State of Minnesota:
        Special permits issued to associations.......................    15
        Publication of approvals.....................................    35

                            ADDITIONS TO THE RECORD

    American Pyrotechnics Association, Julie L. Heckman, Executive
      Director, letter to the Committee..............................    93
    Council on Safe Transportation of Hazardous Articles, Inc., Lara
      Mehr Currie, Administrator, letter to the Committee............    97
    Dangerous Goods Advisory Council, Mike Morrissette, President,
      letter to the Committee........................................    99
    International Society of Explosives Engineers, Jeffery L. Dean,
      Executive Director and General Counsel, letter to the Committee   106
    International Vessel Operators Hazardous Materials Association,
      Inc., John V. Currie, Administrator and Senior Technical
      Consultant, letter to the Committee............................   107
    National Tank Truck Carriers, Inc., John L. Conley, President:
          Statement for the record...................................   110
          Revised statement for the record...........................   115
    The Fertilizer Institute, Ford B. West, letter to the Committee..   116

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      HEARING ON CONCERNS WITH HAZARDOUS MATERIALS SAFETY IN THE U.S.: IS
                         PHMSA PERFORMING ITS MISSION?

                                  ----------

                          Thursday, September 10, 2009

                       House of Representatives
        Committee on Transportation and Infrastructure,
                                                Washington, DC.
        The Committee met, pursuant to call, at 10:00 a.m., in room
    2167, Rayburn House Office Building, the Honorable James
    Oberstar [Chairman of the Full Committee] presiding.
        Mr. Oberstar. The Committee on Transportation and
    Infrastructure will come to order.
        Today we have a hearing in the nature of a continuation of
    inquiry into the conduct of the Pipeline and Hazardous
    Materials Safety Agency.
        In a way, you could say that this hearing began 22 years
    ago with the explosion of the gasoline pipeline in Mounds View,
    Minnesota, just outside my district, when a gasoline pipeline
    had lost its cathodic protection. There was a dent in the line
    that had been there for years unnoticed, and at that point
    there was a failure. Gasoline leaked from the pipeline into the
    ground. There was no shutoff valve, there was no sensor to
    detect the drop in pipeline pressure, and the gasoline leaked,
    apparently for days.
        And the fumes worked their way up through the soil to the
    street level, and at 2:00 a.m. a car driving appropriately
    through the neighborhood, but with a loose tailpipe that
    dragged on the ground, sparked, ignited the fumes that exploded
    the street into a ball of fire, buckled and melted the
    pavement, and a homeowner, a mother and her six-year-old, saw
    the fireball, heard the sound, went out on their front porch
    and were incinerated, as was their house.
        The National Transportation Safety Board did an extensive
    inquiry, found the failures: the rupture in the pipeline; the
    loss of cathodic protection, corrosion that resulted; the
    failure to have frequent, automatic sensors for pipeline
    pressure loss and for leakage; and that the agency had no
    measures in place, no procedures in place, and an insufficient
    numbers of inspectors both at the Federal level and those that
    are funded by the Federal Government in cooperation with the
    State.
        I was Chair of the Investigations Oversight Subcommittee at
    the time. We held a very extensive hearing into the causes and
    preventive measures that should be taken and recommended steps
    to be taken. But what struck me at the time was that there was
    not a culture of safety at the pipeline safety agency; that the
    very top person, the administrator of the agency, had no clear
    idea of what safety means.
        And even though we provided--I moved legislation or
    amendment in our surface transportation in the authorizing
    Subcommittee to create additional positions for inspection, for
    inspectors at the Federal and State level and they were funded,
    but over time the attention was lost and the agency continued
    to operate in what I can only describe today as a deteriorated
    condition of public vigilance.
        Safety is not a one-time snapshot. Safety is continuing
    vigilance. I lived it personally when I worked in the mines,
    when I was going through college, and I worked in a concrete
    Ready Mix concrete block factory, I worked on construction
    zones, street and highway construction. It is a matter of mind-
    set of safety and of vigilance, and this agency has lost its
    way and, along the way, has developed a very cozy relationship
    with the industry it regulates.
        The oversight and investigations role and heritage of this
    Committee goes back to 1959, when then Speaker Sam Rayburn
    asked my predecessor over there, portrait in the corner, John
    Blatnik, to chair the special investigating committee on the
    Federal Aid Highway Program to uncover waste, fraud, abuse, as
    it turned out, criminal activity in the early days of
    construction of the interstate highway system. The result of
    those investigations over a period of six years resulted in 36
    Federal and State and private contractor personnel being sent
    to State and Federal prison. Some of them are still there.
        At the beginning of those investigations, no State had
    internal audit and review procedures in it highway program. As
    a result of those investigations, every State adopted such
    procedures and has continued to refine them.
        The work of that committee was expanded into other areas of
    the Full Committee's jurisdiction, because we know that
    maintaining oversight of the Executive Branch agencies is the
    responsibility of the Congress. We pass the laws; they enforce
    them. It is our job to make sure they are doing the public's
    business, and we will continue to pursue that responsibility in
    this Committee.
        PHMSA's culture appears plagued by a belief the agency
    should make things as easy as possible for the industry that it
    should be regulating. I have asked the staff, since the time we
    regained the majority, to take a special, careful, thorough
    review of this agency, based on my previous experience that I
    have already described. The investigation undertaken by our
    Committee staff, and also by the Inspector General of DOT,
    uncovered a shocking number of failures by the agency to follow
    Federal law in hazmat regulation, outright neglect in
    regulating the transportation of hazardous materials. We also
    heard from numerous employees, those with a real conscience and
    with a concern for the public interest, that their agency was
    entirely, as I suspected and have experienced over the years,
    too cozy with the industry.
        This is a theme we have uncovered in previous
    investigations; in our Coast Guard hearing, where there was a
    similar relationship between the Coast Guard and Lockheed
    Martin, who were told to self-regulate. We saw it last year in
    the inquiry into failure of FAA to oversee safety at major
    airlines, including Southwest, which was the subject of a very
    significant hearing. Again, the FAA inspector staff was told
    that the industry is our customer.
        Safety is not a customer relationship, it is an arm's
    length relationship. And if the FAA treats an airline as the
    customer and the customer isn't satisfied with the oversight
    service they are getting, then they can ask for changes, and
    they did, and the principal maintenance inspector was pulled
    from the Southwest ticket, just as similar actions occurred at
    the Coast Guard.
        In the result of our Coast Guard hearings and inquiry, and
    of the Inspector General's very thorough work, we have passed
    legislation that will change those practices at Coast Guard,
    and the Coast Guard itself has instituted changes. Similarly at
    FAA, we have moved legislation to change the way safety is
    conducted and taken out the customer service initiative. It has
    no place in safety. It doesn't mean that there should be an
    adversarial relationship, but it does mean there must be an
    arm's length relationship between the regulated and the
    regulators.
        What we found is that PHMSA almost never turns down a
    request from industry for a special permit. A special permit is
    an exemption from regulations to carry hazardous material that
    normally would be prohibited by Federal regulation. This raises
    the issue--and I will ask the Inspector General and the under
    secretary to address the question of why there should continue
    to be rule by exception, why there should be special permit,
    and why shouldn't there be a permitting structure to govern
    this matter, rather than each case be considered; 5,000 such
    applications in a two-year period, and less than two percent
    were denied. Saying there is a cozy relationship with industry
    is an understatement.
        PHMSA never performs fitness reviews, although required to
    do so, and it does not review the safety record or the
    enforcement record of applicants for special permits, and that
    is required by Federal regulations, they are defined in their
    own regulations. They have no idea, in this agency, where the
    special permits are being used. If you issue a special permit
    and you don't know where they are being used, then it is
    virtually impossible to monitor and enforce those permits.
        Furthermore, the records are in appalling conditions. The
    vast majority of special permit applications our Committee
    staff and I reviewed, there was no safety analysis, there was
    no justification in the approval records. The agency relies
    almost entirely on self-certification by the applicant. That is
    a formula for failure, as we saw in the Coast Guard and the FAA
    inquiries.
        Further, the agency grants special permits to industry
    trade associations, which then can distribute those permits to
    any of its members. Those trade associations are not safety
    agencies, they are advocacy groups. They are perfectly legal,
    but they are not safety responsibility agencies. This practice
    defies common sense. There is no way to hold a trade
    association accountable under the law, and often PHMSA, in
    response to our questions, has no idea who is using a
    particular special permit.
        Furthermore, they operate all by themselves, PHMSA. They do
    not coordinate with FAA, with the Federal Railroad
    Administration, with Federal Motor Carrier Safety
    Administration, all of whom have safety responsibilities. There
    are cases where those regulatory agencies were opposed to
    granting of exceptions, and yet they were ignored.
        PHMSA also issues approvals and permits to agents of
    foreign governments without any evaluation of the fitness of
    the foreign company. On July 4, 2009, this year, four people
    were killed in North Carolina when a truck loaded with Chinese
    fireworks exploded. PHMSA was unable to provide critical
    documentation on this permit.
        They often ignore the concerns of their own enforcement
    personnel. Numerous of the staff told our Committee
    investigators that their warning and advisories have repeatedly
    been ignored by senior management. A senior manager told our
    Committee investigators I take enforcement personnel views with
    a grain of salt. That is reprehensible. This agency needs a
    house cleaning.
        PHMSA itself needs that 60 to 90 percent of hazmat
    accidents go unreported and the agency has no data driven base.
    There was a universal view expressed within the agency that
    their data is inaccurate, incomplete, and virtually useless.
    That is unacceptable.
        There are volumes more information, but it is clear this
    agency's relationship with the industry it regulates needs to
    be completely overhauled. Its current state is unacceptable, to
    say the least.
        The industry will say, oh, we haven't had any fatalities--
    of course, there were those three or four people--but that is
    not a safety mind-set; that is what I called of the FAA a
    tombstone mentality. You wait until people are dead and then
    you start acting? That is not right. Twenty years ago I
    recommended more inspection, safety mind-set, higher standards
    within this agency. It has deteriorated from there.
        Today's hearing marks a turning point in the history of
    that agency. The Deputy Secretary, Mr. Porcari, has taken
    action as soon as he became aware of these findings and those
    of the Inspector General. I am happy he is here. I am grateful
    to the Inspector General, Mr. Scovel, for his persistent work
    and detailed thorough and dispassionate detailed work on this
    issue.
        Now the Chair is happy to recognize the gentleman from
    Pennsylvania, Mr. Shuster.
        Mr. Shuster. Thank you, Mr. Chairman. Let me start off
    first by saying happy birthday to you. I have exposed you.
        Mr. Oberstar. Yes. Thank you. No songs.
        Mr. Shuster. I am fortunate that you say no songs, because
    my voice isn't that pleasant to listen to. But, anyway, happy
    birthday to you.
        Mr. Oberstar. Thank you very much.
        Mr. Shuster. And many, many more.
        Mr. Oberstar. At a certain point, birthdays are overrated.
        Mr. Shuster. Well, good morning to everybody. Welcome to
    this hearing today on hazardous materials. Welcome to the
    Inspector General and to the Deputy Secretary. Thank you for
    being with us today.
        The Department Inspector General has raised legitimate
    concerns about PHMSA's handling of special permits, approvals
    for hazardous materials, transportation practices that fall
    outside of the normal regulations, and, as the Chairman has
    documented, there are certainly a lot of improvements needed to
    be made at PHMSA, especially in the record keeping and those
    areas; and that is what this hearing is all about today, to
    talk about those issues.
        So I look forward to hearing from PHMSA and the Deputy
    Secretary on how they play to improve the process, including an
    explanation of the action plan that you have developed to take
    care of some of these problems.
        I also look forward to hearing from the institute of the
    makers of explosives about advances in the safety of
    transporting blasting materials essential to mining and
    construction industries. Given the inherent risk associated
    with transporting materials designed to explode, the industry
    does have an outstanding safety record. The use of multi-
    purpose bulk trucks, or MBTs, allows the industry to move a
    wide range of materials necessary for blasting operations in
    the same vehicle, thereby reducing the total number of vehicles
    carrying hazmat over the highways; and, remarkably, these MBTs
    have never caused a single injury or fatality in
    transportation.
        I think we need to strike a balance in hazmat
    transportation policy between making sure that appropriate
    safeguards are in place, while at the same time being careful
    that we do not unnecessarily burden the workhorse industries of
    our economy. Safe and efficient transportation of hazardous
    materials is enormously important to the national economy and
    our way of life.
        Twenty-eight percent, or nearly a third, of all ton miles
    of annual freight on our roads, rails, waterways, and air cargo
    is considered a hazardous material. These shipments include
    everything from heating oil, gasoline, fertilizer, drinking
    water, chemicals, and medical materials use to treat sick
    folks. It is absolutely necessary that we are able to safely
    and quickly deliver a wide range of potentially dangerous
    materials without unnecessary bureaucratic interference.
        Hazmat carriers have a remarkable safety record. The
    percentage of movement of hazardous goods resulting in an
    injury or fatality is an astonishing statistic. I have said it
    before, but .00002 percent result in injury and about .000014
    percent of movements result in a fatality. There are about four
    times as many deaths caused by lightening strikes annually than
    by hazardous material transportation accidents.
        As I said, this is a remarkable safety record and I think
    this is the measurement that we need to use to determine what
    we are doing, if it is right or if it is wrong, not how many
    permits are rejected. I think using that as a measurement is a
    false sense of what an agency is doing and an industry is doing
    and how it is performing.
        Of course, when you are talking about moving dangerous
    goods, there is going to be risk and there are going to be
    accidents. There is no way to completely eliminate risk. What
    we need to do is make careful choices about where we can best
    use our resources to minimize the risks. I know that PHMSA is
    very short-handed and it is very difficult for the number of
    people they have to move forward on some of these things.
        But we have to make the effort and we have to do what is
    necessary to make sure that they do keep the records, that they
    do have a process in place for these special permits, as much
    for safety as for industry, so that they know, when they are
    going to apply for a permit, they know what the process is and
    they can count on some consistency when they are doing that. We
    don't want to knot the system up and create red tape that will
    cease to be effective for the user and that could damage our
    economy and our society.
        So I look forward to hearing from our panelists and, with
    that, I yield back, Mr. Chairman.
        Mr. Oberstar. I thank the gentleman for his comments.
        Do other Members wish to be heard?
        Ms. Brown. Mr. Chairman?
        Mr. Oberstar. Ms. Brown.
        Ms. Brown. Thank you, Mr. Chairman. First of all, I too
    want to say happy birthday and thank you for your service on
    this Committee. As I say, you are the guru of transportation.
        Also, I want to thank Ranking Member Mica for holding this
    hearing today on the Hazardous Material Safety Program. I also
    want thank the staff for their hard work in investigating this
    serious issue.
        Each day, nearly 1.2 million shipments of hazardous
    materials are moved by all modes of transportation. Over the
    last decade, there have been over 170,000 incidents involving
    the transportation of hazardous materials, resulting in 134
    fatalities, 2,783 injuries, and more than $631 million in
    property damage. More disturbing, the Pipeline and Hazardous
    Materials Safety Administration has only 35 inspectors to cover
    over 300,000 hazmat-related entities.
        This issue is so important to the communities that see
    hazardous material travel on their roads and railroads. At many
    of the hearings we have held dealing with rail safety,
    residents and local officials and firefighters and others have
    expressed their concern with the transport of these dangerous
    materials, and it is my guess that once they hear about what
    the Pipeline and Hazardous Materials Safety Administration has
    done or, more importantly, has not done, I am sure they will be
    even more concerned.
        There was such a lack of oversight and inappropriate level
    of corporate influence during the Bush Administration that many
    agencies have become dysfunctional. This is why I am pleased to
    see that the Transportation and Infrastructure Committee is
    making the effort to provide proper oversight to the agencies
    within its jurisdiction.
        In May of this year, I held a Subcommittee hearing on the
    Department of Transportation's Hazardous Materials Safety
    Program with all of the stakeholders to learn what improvements
    needed to be made for the new hazmat reauthorization bill.
        During the hearing it became clear that there were
    significant problems in the program. The agency does not look
    at its own data on accidents and incidents; it does not follow
    up on unreported incidents; and it does not even review whether
    a carrier should be registered to transport hazmat materials.
    Let me say that again. The agency does not look at its own data
    on accidents and incidents; it does not follow up on unreported
    incidents; and it does not even review whether a carrier should
    be registered to transport hazmat materials.
        It grants an alarming number of waivers from important
    safety regulations and provides with little or no oversight on
    permit holders. And it has so few inspectors that I cannot
    understand how they can begin to inspect 300,000 hazmat
    entities to make sure that they are complying with the
    regulations and the terms of the waiver.
        The subsequent investigations by Committee staff and the
    DOT Inspector General confirmed what the Subcommittee heard
    from witnesses at our hearing and even uncovered additional
    problems with current Hazmat Safety Programs.
        I am hopeful that the new Administration is willing to work
    harder at administering these important Hazardous Materials
    Safety Programs and look forward to hearing how they plan to
    fix the serious problems.
        With that, I want to welcome today's panelists and thank
    you for joining us. I am looking forward to hearing their
    testimony.
        Thank you, Mr. Chairman, for holding this hearing.
        Mr. Oberstar. And thank you for your previous work on the
    hearing that you conducted as Chair of the rail Subcommittee.
    It laid the groundwork for today's hearing.
        Mrs. Capito.
        Mrs. Capito. Thank you, Mr. Chairman. Briefly, I would like
    to make a brief opening statement. I would like to thank the
    witnesses for being here.
        Representing the State of West Virginia, in looking at the
    States that are listed by consumption of explosive materials,
    our State is number two; number one being Wyoming, number two
    being West Virginia for, I think, rather obvious reasons. But,
    in West Virginia, if you want to built a road, you need
    explosive materials. If you want to create a mine, you need
    explosive materials.
        So it is extremely important that these materials are
    safely transported to the mine site or the construction site.
    And it is done on a very frequent basis, obviously, in our
    State, traveling all of the roads, not just the major highways,
    but some of those little ones going up to where a lot of folks
    live in the hollows and more rural parts of our State.
        So I am very interested in this report. I am interested to
    see what your plans are going to be going forward to address
    some of the issues. So I appreciate the Chairman bringing this
    to light and bringing it before the full Committee, and I look
    forward to the testimony of the witnesses. Thank you.
        Thank you, Mr. Chairman.
        Mr. Oberstar. I thank the gentlewoman for her statement.
        Yes, Wyoming, with the Powder River Basin coal mining
    operations and West Virginia with highway and coal operations.
    We in Minnesota, in my district, the iron ore mining industry
    uses 300,000 pounds a day of explosives to extract the iron ore
    from the rock harder than granite that fuels our steel
    industry. We are very familiar with explosive materials. I have
    been on mine sites, I have worked in the iron ore mines myself,
    and I know what that is and what it means to have 55 to 60
    million pounds a year of explosives on the roadways.
        Other Members wish to be heard? Mrs. Napolitano?
        Mrs. Napolitano. Thank you, Mr. Chairman. I was going to
    wait, but you hit on some very key points, because, as I have
    stated before, the products coming in from abroad travel
    through my district; mini trains, a mile and a half long
    carrying explosives or carrying all kinds of hazardous
    material.
        I have been involved in the issue of chlorine because we
    have had spills in our Los Angeles area. You are talking about
    12 million people and that is very, very important for us to
    understand whether the fire department's placarding is
    consistent, that they can read it as they are responding to an
    incident, or whether or not the railroad is maintaining the
    lines so there are no accidents because of hairline cracks in
    the rails. I mean, all those come to play.
        So what I am very concerned is whether or not the agencies
    have enough budget, have enough personnel to be able to do all
    the follow-up that is going to be required to consistently
    apply to all the hazardous materials being carted so that there
    is better safety. And while I understand that there haven't
    been very many reported, what about the unreported accidents?
        So those are things that I would like to hear, Mr.
    Chairman, and would be able to have a lot more of, how should I
    say, interest in. Thank you, sir.
        Mr. Oberstar. Ms. Markey.
        Ms. Markey. Yes, thank you, Mr. Chairman and staff, for
    holding this important meeting.
        In my own district we have dealt with two tanker trucks
    crashing into the Poudre River in recent weeks. The Poudre
    River provides drinking water for two of the major towns in my
    district, Fort Collins and Greeley. The first spill, about
    three weeks ago, dumped 5,000 gallons of tar into the river and
    EPA contractors had to be brought in with cranes to lift out
    large sections of asphalt out of the river.
        Within two weeks, a second tanker crashed into the same
    river, releasing 7,000 pounds of liquid asphalt and gallons of
    diesel fuel. Incidentally, because crews were still cleaning up
    the first spill, they were able to contain the second spill
    rather quickly. Both drivers were cited with careless driving
    and the main contractor is no longer allowed to have asphalt
    trucks on the highway until it can prove to the Colorado DOT
    that it has a safety plan in place.
        Fortunately, in this situation, there was not a great
    threat to public health. However, I cannot imagine the
    repercussions if the asphalt had been a more hazardous
    chemical. I applaud the efforts of those who have helped
    contain the effects of these spills into the Poudre River and I
    look forward to discussing and establishing increased oversight
    of the Pipeline and Hazardous Materials Safety Administration.
        Thank you.
        Mr. Oberstar. Thank you for that very personal touch to
    this hearing; it brings it much closer to home when you have
    those experiences.
        Mr. Hare.
        Mr. Hare. I will just adapt, if that is OK with you, Mr.
    Chairman. Let me just thank everybody for being here today. I
    want to join my colleagues in wishing you a very happy birthday
    and I want to thank you and the Ranking Member for holding this
    important hearing today. I commend you for the sense of duty
    that you have in leading this Committee in effective oversight
    of the United States Department of Transportation's Pipeline
    and Hazardous Materials Safety Administration.
        As we know, PHMSA is the leading agency responsible for
    regulating and monitoring the movement of hazardous materials.
    It was created in 2004 under the Norman Y. Mineta Research and
    Special Programs Improvement Act and was proceeded by the
    Research and Special Programs Administration. The role of PHMSA
    is clear: to protect the American people by ensuring the safe
    transportation of hazardous material.
        Mr. Chairman, after learning of the finding of both the DOT
    Office of Inspector General's audit of PHMSA's Hazardous
    Material Safety Program, in particular the Special Permits and
    Approval Program, as well as findings from the Committee
    staff's recent investigation, I am very concerned that PHMSA is
    not fulfilling its role. I am most concerned with the
    revelation that PHMSA has failed to maintain an arm's length
    relationship with industry and, in doing so, has lost sight of
    its main focus, which is public safety.
        Now it is our responsibility, as the Committee of
    jurisdiction, to examine these issues and ensure that PHMSA has
    what it needs to do the job that it was created to do, ensure
    safety of our hazmat workers and non-profits.
        I look forward to hearing from the witnesses today.
        Let me again thank you, Mr. Chairman and the Ranking
    Member, for holding this important meeting, and I would yield
    back.
        Mr. Oberstar. I thank the gentleman.
        Mr. Ortiz?
        Mr. Ortiz. I really don't have any statement, but this is a
    very, very important and serious hearing. With all the kind of
    material that is being moved, I would just hope that we could--
    and I am just waiting to see if I can stay here long enough,
    because I have another meeting--to listen to your testimony.
    But Texas is a big State, as you well know, and we move tons
    and tons of stuff all over the highways, and just because we
    haven't had an accident doesn't mean that there isn't one that
    could happen that could destroy a lot of lives.
        So, Mr. Chairman, again, to you, happy birthday, 25th
    birthday. Congratulations. I wish you many more and thank you
    so much for having this hearing today, because it is a very,
    very important hearing. Thank you so much, Mr. Chairman.
        Mr. Oberstar. Thank you. I thank all of you. In preparation
    for this landmark occasion, I went out and rode 75 miles over
    the weekend on my bike, not on my car.
        If there are no other requests, we will begin with
    Inspector General Scovel.

      TESTIMONY OF THE HONORABLE CALVIN L. SCOVEL, III, INSPECTOR
     GENERAL, U.S. DEPARTMENT OF TRANSPORTATION, WASHINGTON, D.C.;
        AND THE HONORABLE JOHN D. PORCARI, DEPUTY SECRETARY OF
    TRANSPORTATION, U.S. DEPARTMENT OF TRANSPORTATION, WASHINGTON,
                                  DC.

        Mr. Scovel. Mr. Chairman, Ranking Member Shuster, Members
    of the Committee, thank you for inviting me here today to
    discuss PHMSA's Special Permits and Approvals Program. My
    testimony focuses on weaknesses we have identified and how
    PHMSA authorizes and oversees these exemptions to hazmat
    regulations, weaknesses that call for a fundamental rethinking
    of PHMSA's approach.
        As currently structured, PHMSA's Special Permits and
    Approvals Program carries little assurance that hazmat will be
    safely transported. This is evidenced by PHMSA's practice of
    granting permits without full knowledge of applicants' safety
    histories and the agency's record of inattention to
    longstanding safety issues.
        First, PHMSA does not look at applicants' incident and
    compliant records when granting, renewing, or allowing party-to
    permits. We found this to be the case even when applicants had
    multiple incidents and enforcement violations for years prior
    to receiving their permit. For example, PHMSA granted a special
    permit to a company to operate bulk explosive vehicles, even
    though that company had 53 prior incidents, 9 of which were
    serious vehicle rollovers. Of particular concern is PHMSA's
    practice of granting special permits to trade associations,
    effectively giving a blanket authorization to thousands of
    member companies without any assessment of their safety
    histories or need for the permit.
        PHMSA also grants special permits and approvals without
    thoroughly evaluating applications. PHMSA's reviews of 65
    percent of the 99 permits and all 56 approvals we looked at
    were either incomplete, lacked evidence of an equal level of
    safety finding, or simply non-existent.
        Further, PHMSA's risk-based oversight criteria omits a key
    rating factor that should drive compliance reviews, that is,
    whether a company holds a special permit or approval. However,
    our visits to 27 companies found that more than half did not
    comply with the terms of their permits. Some officials did not
    know which permits applied to their location and some were
    unaware that they even had a permit to abide by.
        PHMSA's lack of coordination with FAA, FRA, and FMCSA
    exacerbates these weaknesses. These agencies may have critical
    safety data on applicants seeking a permit. Yet, we found PHMSA
    did not coordinate 90 percent of the new and party-to permits,
    or any of the renewals we reviewed. PHMSA also did not
    coordinate most of the emergency permits we reviewed, even
    though the law specifically requires that coordination.
        The second vulnerability we identified is PHMSA's
    inattention to longstanding safety issues. Most notably, PHMSA
    ignored safety concerns regarding transportable explosives,
    concerns first raised by its own Office of Hazardous Materials
    and Enforcement over two years ago. We called for PHMSA to take
    action on this in our July 2009 management advisory.
        This is not the first time longstanding safety concerns
    have gone unaddressed. There has been intense debate among
    PHMSA, FAA, NTSB, and other aviation stakeholders on the safe
    transport of lithium batteries by air. Last year, eight lithium
    battery incidents involving air carriers occurred, two of which
    were life-threatening, and we have seen six so far this year.
    Yet, PHMSA has not stepped up its coordination efforts or
    addressed all of FAA's and NTSB's concerns.
        For example, we found PHMSA granted an emergency special
    permit in 2008 to ship lithium batteries by air with a
    poisonous gas normally not allowed on aircraft. According to
    FAA, PHMSA did not explain how an equal level of safety would
    be met or provide safety measures for the pilots. PHMSA is
    working with FAA to propose changes to the Department's
    recently amended rule requiring safety measures for air
    transport of lithium batteries; however, these efforts only
    began after serious incidents and high-level departmental
    attention.
        In closing, I want to recognize Secretary LaHood and Deputy
    Secretary Porcari for their leadership in directing PHMSA to
    develop an action plan in response to our recent advisory on
    PHMSA's special permit process. PHMSA's plan shows promise and
    we will continue to monitor its progress. In addition, we
    believe the actions described in Deputy Secretary Porcari's
    statement could address many other fundamental weaknesses we
    have identified. The Secretary and Deputy Secretary's continued
    support will be critical to successfully implement these
    planned actions and achieve the intent of the program, that is,
    to ensure permit holders safely transport hazardous materials.
        This concludes my statement, Mr. Chairman. I would be happy
    to answer any questions you or Members of the Committee may
    have.
        Mr. Oberstar. Thank you very much, Inspector General
    Scovel. Your entire document will be included in the Committee
    hearing record at this point. It is a comprehensive detailed
    analysis of this agency and its shortcomings, and your
    recommendations for improvements. We will get to those in a
    bit.
        Deputy Secretary Porcari, congratulations, first of all, on
    your appointment to the position. I have known you from the
    time you served in Maryland as secretary and you have already
    made a good start within the Department.
        Mr. Porcari. Thank you, Mr. Chairman. Mr. Chairman, Ranking
    Member Shuster, and distinguished Members of the Committee, on
    behalf of Secretary of Transportation Ray LaHood, I appreciate
    the opportunity to discuss the Pipeline and Hazardous Materials
    Safety Administration's Special Permits and Approval Program.
        I have been briefed by your staff on a number of serious
    deficiencies in and concerns with the Hazardous Materials
    Program, including its Special Permits Program. I have also
    been briefed by the Department's Office of Inspector General
    regarding the Hazmat Special Permits Program and the advisory
    that the Office of the Inspector General issued on special
    permits for explosive mixing trucks. I have also been briefed
    on a 2008 internal review of PHMSA's safety culture regarding
    perception of the agency's employees as to the safety
    commitment of the agency.
        Mr. Chairman, Members of the Committee, I share your
    concern that the agency is off track on its primary mission,
    safety. Let me be clear. Secretary LaHood and I regard
    transportation safety as the Department's primary mission and
    we are taking action to get PHMSA back on that mission. I would
    like to report briefly on the actions we have taken to begin
    this process and to address some of the immediate concerns.
        First, the Department has a detailed action plan, which you
    have been provided copies of, to address the safety concerns
    raised by the Inspector General about the Special Permits and
    Approval Program. Before I discuss the specifics of that, I
    would like to also briefly describe the importance of the
    Special Permits Program to our overall regulatory program.
        DOT issues special permits under the authority provided in
    the Federal hazardous materials transportation law. Special
    permits allow the industry to quickly adopt and utilize new
    technologies and new ways of doing business that may not be
    accommodated in the regulations. DOT also issues special
    permits on an emergency basis to facilitate emergency
    transportation, such as to authorize the transportation of
    supplies to areas affected by natural or manmade disasters. By
    law, special permits must provide a level of safety equivalent
    to that required by the regulations or a finding that is
    consistent with the public interest and Federal hazardous
    materials law if a required level of safety does not exist.
        Every year, DOT issues approximately 120 new special
    permits, authorizes approximately 100 modifications to existing
    special permits, and issues approximately 1100 renewals. New
    special permits may be authorized for up to two years, at which
    time they may be renewed for a period of up to four years.
        Obviously, this is an important part of the program. We
    recognize there are deficiencies and we are working hard to
    address these deficiencies with the detailed action plan that
    is submitted. Briefly, we have taken the following actions:
    one, conducted a comprehensive top-to-bottom review of current
    written special permit policies, procedures, and practices to
    ensure that the safety goals are met; two, review the criteria,
    policy, and procedures used to make the legally required
    equivalent level of safety determinations and revise those
    procedures where necessary; three, develop enhanced written
    procedures to provide for better coordination for the issuance
    of permits with the Federal Motor Carrier Safety
    Administration, the FAA, the Federal Railroad Administration,
    and the Coast Guard; four, to clarify PHMSA policy to assure
    the trade associations are not holders of special permits; and,
    five, by February, the Pipeline and Hazardous Materials Safety
    Administration will have a business plan in place to create a
    centralized data analysis office to improve the data quality
    and the information technology systems that are currently in
    place.
        This new technology will greatly enhance the productivity,
    accountability, and overall safety performance responsibilities
    of the Hazardous Materials Office of Special Permits. The new
    system will include an online application that will not be
    processed until completed, a mechanism for alerting holders of
    special permits 90 days in advance of the expiration of the
    permit and a notification system to communicate safety
    concerns.
        An additional part of the action plan was developed to
    address the concerns raised in the OIG advisory related to
    explosive mixing trucks. It includes issuing a notice of
    proposed modification of the special permits for explosive
    mixing trucks to provide additional safety conditions,
    including vehicle inspection and maintenance, enhanced driver
    training, incident reporting and investigation, fire prevention
    and emergency response plans.
        It also notifies special permit holders of the intent to
    evaluate each holder's fitness to operate these trucks. These
    stakeholder responses are due in September. It includes
    conducting fitness reviews of current special permit holders to
    assure compliance with the permit terms and a review of expired
    permits; contracting for an independent risk assessment of
    explosive mixing trucks in transportation; reviewing
    documentation, including safety assessments and analysis, to
    ensure that documentation supports the issuance of a special
    permit; and rescinding any special permit authorized for a
    holder who is considered unfit to safely transport these
    materials. Our action plan will evolve and update as necessary.
        As I mentioned, I was briefed late last week by your staff
    on the findings of the Committee investigation. You identified
    specific concerns. These are concerns that the Secretary and I
    share, including that our data analysis capability is totally
    inadequate to ensure that the hazmat program is data driven and
    able to focus on the greatest hazards. I want to assure the
    Committee that we will work with you to address all of these
    important issues that you so diligently raised.
        The rest of that is submitted for the record. I would
    conclude by mentioning the lithium battery regulation. The
    Committee has expressed interest in the notice of proposed
    rulemaking on lithium batteries. It is clearly a very important
    issue. The Department has forwarded to OMB a notice of proposed
    rulemaking yesterday for review on that, and we will continue
    moving on that as well.
        Finally, and perhaps most importantly, safety culture,
    which, Mr. Chairman, you clearly listed in your opening
    remarks. Re-establishing a safety culture is perhaps the top
    priority. It is an ongoing effort. We expect, within the next
    90 days, the employees will once again view the organization
    and its leadership as strongly committed to its safety mission.
        The fact that Secretary LaHood has specifically detailed me
    to oversee this I think is an indication of how serious we take
    this. We will, again, revise procedures; we will update
    requirements; we will institute new rulemakings where
    appropriate. Our first priority is and will continue to be
    safety. We will not tolerate agency actions that undermine our
    commitment to safety and we will rescind or deny renewal of
    permits for unsafe actors.
        Thank you. With that, I will be happy to answer any
    questions.
        Mr. Oberstar. Thank you very much, especially for those
    closing comments about addressing the need for a culture of
    safety at the agency. I would suggest a re-education session
    for them. There are some very good actors and very good
    conscientious personnel, and there are others who need to be
    retrained, who look to the trade association representatives
    for guidance, not to their leadership for guidance. That chain
    has to be broken, and that will take the Secretary's
    leadership, which he has already indicated, and yours, as you
    have already undertaken.
        Your DOT action plan I think is excellent. I don't see
    anything there about association special permits, however. Have
    you addressed that issue?
        Mr. Porcari. Mr. Chairman, no permits will be issued to
    associations. We are in the process of, as part of the action
    plan, of making it clear that permits are not issued to
    associations. After appropriate review, they are issued to
    companies.
        Mr. Oberstar. Does that mean that the Department will
    terminate those 12 association authorities?
        Mr. Porcari. We are in the process of and will modify,
    terminate, whatever is necessary to make clear that each of
    those permits and every permit is to an individual company, not
    to a trade association.
        Mr. Oberstar. Report back to us when you have completed
    that.
        Mr. Porcari. I will be happy to do that.
        [The information follows:]

        [GRAPHIC] [TIFF OMITTED] T2158.021

        Mr. Oberstar. In the opening chapter of the law governing
    transportation of hazardous material, section 5101 states the
    purpose of this chapter is to protect against the risks to
    life, property, and the environment that are inherent in the
    transportation of hazardous material in intrastate, interstate,
    and foreign commerce.
        That is a rather unequivocal statement, yet, the trade
    industry witness says the law says that PHMSA regulates against
    unreasonable risk. That is a misstatement of the law. In
    section 5103, general regulatory authority, in the subsection
    designating material as hazardous, Secretary shall designate
    material--and it lists the various types of materials--as
    hazardous when the Secretary determines that transporting the
    material in commerce in a particular amount and form may pose
    an unreasonable risk to health and safety or property.
        Do you have some recommendations for amendment of that
    provision?
        Mr. Porcari. Mr. Chairman, if there is something that we
    are not doing there consistent with the overall safety mission,
    we will modify it and do whatever we need to.
        Mr. Oberstar. That is the current statutory language, form
    that may pose an unreasonable risk to health and safety or
    property. That is not the way safety is conducted or directed
    in the FAA Act.
        Mr. Porcari. That is correct, Mr. Chairman.
        Mr. Oberstar. Safety, in the opening paragraph of the FAA
    Act of 1958, the directive is safety shall be maintained,
    safety in aviation shall be maintained at the highest possible
    level. It doesn't say acceptable or unacceptable risk; it sets
    the bar very high. And I invite your reconsideration of this
    language to something that is measurable. This is a very
    subjective statement in law, and we have the opportunity and
    the authorization of surface transportation law to make
    appropriate changes. So I would like your attention to that
    issue and report back to the Committee.
        Mr. Porcari. I would be happy to do that, Mr. Chairman.
    Again, safety as a culture is also an ongoing process, there is
    not an endpoint to it, and, in many ways, the Federal Aviation
    Administration is the leader in the Department in that. I
    should point out that Secretary LaHood has directed us to take
    other measures beyond the subject of the hearing today to
    institute safety as a Department-wide cultural imperative, and
    when we say safety is our number one priority, these are
    specific measures to make sure that that is the case across the
    board.
        Mr. Oberstar. I welcome that initiative. I welcome the
    Secretary's firmness; he is a person of purpose and driven, and
    he will achieve results. He is no-nonsense.
        Inspector General Scovel, why special permits? Why the
    modifications? Why 120 new special permit applications every
    year? Why some 100 modifications, from your testimony, to
    existing--I think maybe that is the Department's testimony--to
    existing special permits? Why 1,100 renewals? It seems to me
    that there is an inadequate structure to begin with. It seems
    to me that there is haphazard, a case-by-case approach to the
    regulation of safety in this agency.
        Mr. Scovel. Mr. Chairman, we have had our audit ongoing for
    the last 14 months into PHMSA's Special Permits and Approvals
    Program. It quickly became obvious to us, first from the sheer
    number of special permits and approvals--5500-plus permits,
    118,000-plus approvals--that it appeared that the innovations
    and the advancements and the improvements that industry has
    come up with for the transportation of hazardous materials has
    essentially swallowed the body of law that is contained in the
    hazardous materials regulations in the Code of Federal
    Regulations.
        The Department hasn't had a structure in place, a strategy
    in place to bring in the techniques and advancements
    represented by the special permits and approvals, to bring them
    into law. As a result, exemptions to the procedures and
    processes specified in the regulations have been granted in the
    form of these special permits and approvals. One of our
    strongest recommendations to the Committee and to the
    Department is that it establish a strategy for methodically,
    and in a disciplined way, bringing the current technology, the
    current practice, industry practice into regulations so that
    the entire practice of special permits and approvals can be
    brought under control.
        Mr. Oberstar. That is a very important, very strong
    suggestion, and one that we will follow up on.
        This is a special permit issued by the Pipeline Hazardous
    Materials Safety Administration. It was granted to a particular
    company plus 84 other cargo carriers. It authorizes
    transportation in commerce of hazardous materials in an
    inaccessible location aboard an aircraft. Inaccessible meaning
    the crew can't reach that place to put out a fire.
        We heard this in the ValuJet crash with the oxygen bottles
    carried loosely onboard, not protected individually, not
    secured, and placed inside a tire that the aircraft was
    carrying to another destination. And when they exploded, that
    tire caught fire and provided fuel to the fire and brought the
    aircraft down and lost lives.
        Now, the crew was in no way able to access that
    compartment, they were not aware that those oxygen bottles were
    onboard, they were not aware that onboard they were not secured
    or isolated one from the other; and that was 15-plus years ago.
    You would think that somebody had learned a lesson in the
    meantime. Apparently not. Explosives, flammables, poison,
    corrosives covered by this special permit. And it specifically
    says in any inaccessible compartment. How can they justify
    that? Did you talk to them about that, Mr. Scovel?
        Mr. Scovel. We did not. We know that that is a particular
    concern of NTSB's with regard to the transport of lithium
    batteries in inaccessible locations aboard cargo aircraft. As
    the Committee may know, cargo aircraft aren't required to have
    fire suppression systems, and, in fact, the standard fire
    suppression system aboard any passenger aircraft isn't capable
    of suppressing most lithium battery fires should they happen in
    a passenger aircraft. It is a particular concern.
        One of NTSB's key recommendations, in our view, is that
    when lithium batteries are to be carried in inaccessible
    locations, that they be carried in fire-resistant containers.
    NTSB has been fighting this battle for 10 years; it is still
    not satisfactorily resolved, in our view.
        Mr. Oberstar. That is just unacceptable. There are many
    others. I will conclude for the moment on this one. Issued
    November 9, 2006, this emergency special permit authorizes
    transportation in commerce of nitric acid, etcetera, etcetera.
    It waives the requirements for marking, for labeling, for
    shipping papers; waives the requirement for aviation stowage
    requirement; it waives the requirement for notice to the pilot
    in command. In November 1973, nitric acid carried aboard an
    aircraft on a PanAm Airline aircraft resulted in emergency
    landing in Boston and three crew were killed.
        The argument that there are only a few of these, until
    someone's life is lost. Now, if you are operating in a
    haphazard structure and comforting yourselves saying we haven't
    had many fatalities, only a few or it is only rare, then try
    being one of the family members. Try putting yourself in the
    position of those who have lost a loved one or being aboard one
    of those horrible accidents and dying a painful death. That is
    not acceptable.
        Mr. Shuster.
        Mr. Shuster. Thank you, Mr. Chairman.
        Mr. Scovel, I think we all agree, especially on the heels
    of what the Chairman said, that there has been haphazard, the
    process hasn't been in place that needs to be; we have
    uncovered a lot of shortcomings and failings at PHMSA in its
    record-keeping and the like. I don't know that I have seen it,
    but can you assess the overall safety record within the hazmat
    materials movement industry? What is the assessment of the IG's
    Office on the overall record?
        Mr. Scovel. Mr. Shuster, I can't speak to the overall
    record of the industry as a whole. The focus of our recent
    audit has been the Special Permits and Approvals Program
    administered by PHMSA itself. We have found serious
    deficiencies in the program design and execution of the Special
    Permits and Approval Program that leads us to question,
    frankly, whether there has been the exercise of due diligence
    in that particular office within PHMSA and the safety culture,
    the understanding of safety culture within that office. My
    recent work wouldn't qualify me to speak to industry practice,
    however.
        Mr. Shuster. It would seem to me that would be an important
    part of the IG's role, to assess the situation and what are the
    outcomes, good or negative. Again, the records I see are that
    it is still a remarkably safe record, in spite of the fact that
    the process is flawed and failed and needs to be improved.
        You mentioned something about these special permits, that
    the advances in technology and improvements in industry have
    swallowed up the law. Can you be more specific? That sounds
    like a positive--well, it sounds like the law is lagging way
    behind and needs to be changed because there have been
    advancements in the industry. Can you address that more
    specifically?
        Mr. Scovel. Yes, sir. In fact, I can give you an example.
    The hazardous materials regulation specifies a procedure for
    carrying certain hazmat in rail tank cars. In fact, the process
    for that that is specified in the regulation has been overtaken
    by events within the industry; a much safer rail tank car is
    now standard within the industry. By our accounts, it has an
    excellent safety record. Yet, the regulation itself hasn't been
    updated to incorporate the new technology. Rail companies still
    need to apply for and renew special permits to use the latest
    technology instead of the older one.
        To return to your earlier question, sir, about practice
    within the industry, I can say, from our experience with trade
    associations and the agency's practice of granting special
    permits to trade associations, that those bodies have not been
    diligent across the board either in keeping their members up to
    date on what the permits entail, indeed, even whether certain
    members are the recipients, through their trade association, of
    permits to begin with.
        And we have had experience in our field visits with
    companies that told us, in fact, that they had recently been
    informed in kind of a good news-bad news phone call from their
    trade association, good news, oh, that practice that you have
    been engaged in for some time now, carrying hazmat in a
    particular manner, we forgot to tell you have a special permit,
    so you may be covered; bad news, there may be a team of OIG
    auditors on the way to check and see how you are carrying it
    out.
        So I suppose that is an indicator of some sort on the state
    of play within the industry or at least how certain trade
    associations view their responsibilities.
        Mr. Shuster. I would hope these trade associations, one of
    their roles should be informing and help to keep that industry
    up to speed on where safety issues are, and I think the trade
    industry is not doing that, is failing their membership
    significantly.
        Mr. Scovel, do you believe that PHMSA's action plan
    addresses most of the concerns that you have raised?
        Mr. Scovel. It does address most of the concerns and we are
    very grateful to Deputy Secretary Porcari and Secretary LaHood
    for their leadership at the top levels of the Department in
    bringing home to PHMSA the importance of both our findings and
    the Committee's staff's findings regarding deficiencies, in our
    case, of special permits and approvals. We do recognize, as we
    work through the action plan, that at this point it is rather
    high level. It has a list of actions, it has a time line for
    carrying those out. Of course, we recognize it is a work in
    progress; the Department will need to add detail to it, they
    will have to tag resources to actions, they will have to
    recognize limitations and develop strategies to overcome those.
        The Chairman questioned the Deputy Secretary on an omission
    from the action plan regarding a plan to address special
    permits issued to trade associations. Frankly, it is not clear
    in my mind that PHMSA or the Department is going to follow up
    with all 5,000-plus individual members of trade associations
    who may have derivatively received special permits. The agency
    basically has to follow up with an individual fitness
    determination in the case of every single company, and we hope
    the Department will commit to that level of effort.
        Mr. Shuster. That is going to obviously take resources. If
    I could, just one final question. Are the resources in place? I
    guess that is not a fair question; they are not in place,
    whether they are human resources or technological advances.
    Have you assessed is it going to take a lot more personnel or
    can you overcome some of these shortcomings by technology?
        Mr. Scovel. It will take a combination of two, Mr. Shuster,
    certainly technology, better data systems are required. The
    Deputy Secretary acknowledged that in his statement to the
    Committee. It is going to take time and a strategy. Frankly,
    some sizeable number of those special permit holders that have
    received their permits supposedly through their trade
    associations, a good number of those aren't engaged in those
    practices at all, as we have learned in our field visits. Some
    of those can be sliced off the top. There will be some number,
    however, who are left who are engaged in the practice. The
    agency hasn't done an individual fitness determination in the
    cases of those companies and they need to get to it.
        Mr. Shuster. Backtrack there a little bit. You said there
    are some companies that are doing a good job? Is that what I
    understood you to say?
        Mr. Scovel. Yes. If I can be specific. As part of our
    examination of this practice of granting permits to trade
    associations, we visited 18 companies that belong to 7 of the
    12 trade associations. We found that 10 of those 18 were not
    performing the activity in the special permit. So not
    applicable, they may be cut off from the permit, no further
    review needed.
        Four companies were not located at the address provided by
    their association. Association clearly not on the ball. They
    didn't know, PHMSA doesn't know. That needs to be updated.
    Three companies, 3 of the 18, had compliance issues we found
    regarding shipping papers, training, security plans; and these
    are essential plans of any comprehensive hazmat program. Two
    companies didn't know that a special permit applied to their
    activities. Sir, basically, we found that one company out of
    the 18 appeared to be in compliance with the terms and
    conditions of the special permit.
        Mr. Shuster. Thank you very much.
        Mr. Oberstar. Those last comments are very powerful, very
    revealing, and troubling; more than troubling, disturbing. In
    further response to Mr. Shuster's question about safety, my
    dictum has been that safety begins in the corporate board room;
    not in the regulatory agencies, not in this Committee, and not
    in the Congress. It begins in the corporate board room. They
    have the first responsibility. Airline executives have that
    first responsibility.
        But the role of safety in aviation goes back to 1926 and
    Herbert Hoover, when he was Secretary of Commerce, and more in
    the interest of developing aviation as a commercial activity
    than for safety of personnel. There was only the pilot, there
    was no passenger air service in those days. But he initiated
    the first aviation safety rulemaking of the Federal Government
    in 1926 as Under Secretary and later Secretary of Commerce.
        In those days, it was not uncommon for a wing to fall off
    an aircraft in flight. It was not uncommon for an engine to
    fall off the aircraft in flight. That was bad manufacturing.
    But it went back to the corporate structure of being safe
    before you put an aircraft out in flight.
        So there is and there are examples in explosives material
    transportation of board rooms with a culture of safety. I
    visited one over the past weekend in my district, where they
    typically handle 300,000 pounds of explosives a day during the
    mining years. They are very meticulous. They supervise their
    drivers; they put them through training and retraining
    procedures. They have worked to perfect the transport vehicles
    themselves. I talked with every one of the drivers
    individually, apart and away from the company management. They
    are doing their very best. And they question the regulatory
    structure that is in place. They are doing what they think is
    the best practice.
        And then as to the incidents, here is a report, an internal
    document in PHMSA, May 11, 2007, estimating the extent of
    under-reporting of hazmat incidents. There are many reasons to
    suspect that carriers are under-reporting hazmat incidents. It
    goes on in the opening paragraph, preliminary conclusion, the
    incidents that are reported to us might represent only 10 to 40
    percent of all incidents that are actually occurring. That
    would mean that we are missing from 60 percent, that is, 26,000
    incidents a year, to 90 percent, that is, 151,000 incidents a
    year. Our database reflects only 17,000 incidents a year.
        From 2006 to June 2009, there were 1,450 unreported and
    only 7 enforcement actions. That is not a culture of safety.
    That is not carrying out your responsibility. This was an
    internal report and wasn't acted on by senior management; they
    just dismissed it.
        Next, Ms. Brown.
        Ms. Brown. Thank you.
        First of all, let me thank both of you gentlemen for your
    leadership in this area. As we begin to do the reauthorization,
    I guess a couple of things point out in my mind. First, I want
    to start with you, Mr. Secretary. My staff used a strong word,
    termination. I don't want to use that. I think the leadership
    should decide on whether someone should be terminated.
        But I do think it should be some kind of a shakeup or a
    moving of the chairs. What has happened in the agency? Because
    I understand that there has been contact with the companies,
    letting them know investigations are going on. What is it that
    people in the agencies need to understand that safety doesn't
    have anything to do with who is in the Administration.
    Everybody needs to do their job.
        Mr. Porcari. It is an excellent question, ma'am. First, it
    starts at the top. As Deputy Secretary, I am directly engaged
    in this. I will stay engaged. I am not going away. It is a
    process that, as the Inspector General pointed out, as we go
    forward with the action plan, we will get into more and more
    detail.
        Building a culture of safety and keeping that culture of
    safety in the agency is going to require that message from the
    top. We will shortly have a nominee as the administrator. That
    is an important part of the puzzle. The working relationship
    between the special permits process, the enforcement process,
    our sister agencies within DOT and referrals, all of those need
    to be fixed and will be, and we will make the organizational
    and personnel changes necessary to carry this out. Again, this
    is a public trust issue, it is a fundamental responsibility.
    These are substances that are necessary for our everyday lives
    and for our economy, but we are committed to doing this safely.
    It is, I think, clear that we took our eye off the ball at some
    point. We are focused like a laser on it now.
        Ms. Brown. Well, I want to thank you for your leadership in
    this area. As I said earlier, we have had hearings all over the
    Country where these issues of hazardous materials coming
    through the community, whether it is the firemen that were
    talking to us when we went to Mrs. Napolitano's district,
    whether it was the elected officials, this is the issue that
    comes up. They are concerned. They want to know and they want
    to know that we are doing our job and we have the oversight. So
    I am very interested in what recommendations you think we need
    to put in the bill to make sure that we have the safeguards
    there.
        Mr. Porcari. It is clear, as, again, the Inspector General
    pointed out, from the size of the body of special permits that
    it is difficult to keep up with changing technology and the
    state of the art, and at the same time, as the Chairman pointed
    out, the level of safety and the requirements for safety, that
    bar is getting higher with time, as it should. I look forward
    to working with you through the authorization process because
    it really is an opportunity to fundamentally reevaluate where
    we are now, where we should be, and how that authorization can
    be one of the mechanisms to get there.
        Ms. Brown. I understand there are only 35 employees. It is
    not that I am interested in revving up, but we want to know
    that we have the appropriate number and we can use the new
    technology.
        Mr. Porcari. Staffing is certainly a part of it. Data is a
    very important part of it. Any safety process where you have
    safety management systems and you have a culture of safety, you
    can't do that without the proper data and mining and analyzing
    that data correctly. We are way behind the curve on that; that
    is clearly one of the most important parts of the effort here.
        Ms. Brown. Thank you.
        Mr. Inspector General, thank you again for your leadership
    in this area. You have done a good due diligent job in keeping
    us informed and doing the oversight that is needed. I guess my
    question to you, in listening to the staff, they indicated
    there were eight serious violators that have--you know, when we
    did the research, they really have violated all of the rules.
    What can we do to flag them today as we speak?
        Mr. Scovel. Ms. Brown, I would have to consult with my
    staff and probably Committee staff as well to understand those
    individual cases. However, if I can generalize by saying that,
    as the Deputy Secretary has acknowledged, proper acquisition of
    data, proper use of that data is a problem with PHMSA. As that
    problem is fixed--and I am very confident that, through the
    Department's leadership, it will be--that violators of the type
    you describe can be identified.
        At that point there needs to be a very careful, a very
    diligent effort to make sure that, as part of the risk-based
    oversight system that PHMSA, like all modes in DOT, must
    employ, that those violators are flagged for further compliance
    reviews and, if necessary, any permits or whatever are
    terminated, suspended, addressed in the appropriate fashion as
    provided for due process and by regulation.
        Ms. Brown. Do you think that the Department of
    Transportation has the tools that they need working with other
    safety organizations to do the job for the communities that we
    represent?
        Mr. Scovel. Not yet, ma'am.
        Ms. Brown. OK.
        Mr. Scovel. And the Department itself has acknowledged
    that, both in terms of staff, perhaps numbers--I don't want to
    prejudge that, but in terms of staff outlook or safety culture,
    their training most certainly, because, in all fairness, some
    of these practices that we highlighted in our statement for the
    Committee today developed many years ago. For instance, the
    oldest trade association special permit that we identified
    dates back to February 1994, and it has become a practice,
    apparently, that nobody has questioned until now. So the
    current crew in Special Permits and Approvals, they have been
    working with what they have been given. They certainly need to
    be re-educated and retrained.
        Ms. Brown. Well, I am very interested in what your
    recommendations are as far as what we need to do as we develop
    and move forward on the reauthorization bill.
        Thank you again for your leadership, both gentlemen.
        Mr. Scovel. Thank you, ma'am.
        Ms. Brown. [Presiding] Mrs. Napolitano.
        Mrs. Napolitano. Thank you, Madam Chair.
        I am listening with great intent on the hazardous
    transportation of materials. In my particular area, we do a lot
    of chlorine because of water treatment plants that we have and
    others. Years ago, I went to one of the chemical companies to
    see how they were transporting chlorine. At the time, the
    transport tubs that were plastic were not double-walled. They
    were beginning to get into double-walled.
        Well, that poses a great concern because they travel by
    truck to get them to these areas after they unload them from
    the railroad. Concern is there is the current thinking that
    there is a substitute to chlorine or that they should move the
    chlorine generation plants closer to the sanitation districts
    or to the water districts for being able to avoid these long
    transportation areas or having to transport them long
    distances.
        Are you, in any way, shape or form, aware of anything that
    they are doing in transportation of chlorine gases?
        Mr. Porcari. Ma'am, I am not personally aware of any
    changes in the transportation of chlorine gases. What I would
    like to do is actually get that information to you and provide
    it to the Committee.
        Mrs. Napolitano. It would be very helpful, because I work
    with the Councils of Government and three of them represent
    probably about seventy-some odd cities out of the 85 in Los
    Angeles County alone, and they are all very, very concerned
    about any releases in their area because it is so compact.
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        The other question I have is the hazmat placards on rail
    cars. That has been an issue in my communities for the last 15,
    20 years, that I know of. Some railroad companies supposedly
    are looking to get rid of the hazardous material placards on
    railroads and keeping them within the engineer's cab. To me,
    that is ludicrous, because what if that particular train piece
    is injured or derailed, or in smoke, whatever? Then how are the
    hazmat folks being able to respond what is on that train?
        Mr. Porcari. Ma'am, the placarding is an important part of
    the safety process, knowing, as you point out, what is in that
    particular rail car or in that container. I am not aware of any
    pending waiver of those requirements, but, again, what I would
    like to do is go back and check that and report to the
    Committee.
        Mrs. Napolitano. OK. It seems to me there was some
    discussion, particularly on this Committee, a couple years ago
    in regard to the viability of being able to do away with them
    because of the terrorism issue, that they could target those
    particular cars. So that is what brought that particular issue.
    But I would really appreciate it if this whole Committee would
    be able to get that information.
        Mr. Porcari. I would be happy to do that.
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        [GRAPHIC] [TIFF OMITTED] T2158.026

        Mrs. Napolitano. I am assuming that you work with the local
    entities like the Public Utilities Commission and the hazmat
    areas to request from them information about situations where
    it may not be reported by the carriers, whether it is rail or
    truck.
        Mr. Porcari. One of the deficiencies we have right now is
    actually gathering that kind of data to make sure that we have
    comprehensive information on incidents that may not otherwise
    be reported. We know that is one of the activities that we have
    to do a better job on and that is part of what we want to do
    going forward.
        Mr. Scovel. Thank you, Mrs. Napolitano. Perhaps our work
    can shed a little bit of light on your concerns. Signage and
    placarding are tremendous issues when we are talking about any
    first responders, police or fire and so forth. As part of our
    examination of special permit or approval holders, we visited
    27 companies in the field, and we found that 59 percent of them
    were not in compliance with at least some of the terms of their
    special permits, and those special permits specified the type
    of signage or placarding that would be required for that mode
    of transportation and that particular hazardous material, and
    signage problems were prominent among those that we identified
    among those special permit and approval holders.
        Mrs. Napolitano. Well, this concern came out from one of
    the local fire departments, who has a cooper rating, and one of
    the firemen lived in the general area where one of the BNSF
    trains would go by. He said he couldn't identify the hazardous
    placards. So, to me, that shows that there is no cooperation
    between them to be able to help standardize them so they can be
    recognized.
        Then the last question very quickly is budget and
    personnel. While I know that you are short, there are not that
    many inspectors that you have, what will help to be able to
    ensure that we continue to focus on public safety?
        Mr. Porcari. As you correctly point out, ma'am, there are
    budgetary implications to this. We are looking at that right
    now, both personnel issues, the information technology needs,
    and there is substantial cost involved with that. In the
    conversations I have had with the Secretary on this topic, he
    has made it very clear that safety is paramount, that we need
    to, as we are working through the budget process on a multi-
    year basis, make sure that that is reflected in our priorities.
    We are in the process of sorting that out right now.
        Mrs. Napolitano. Thank you, Madam Chair. I think that would
    be very good information for the Committee.
        Ms. Brown. Thank you.
        We are going to stand in informal recess for about 30
    minutes. We have three votes and we are going to start with my
    friend when we come back. OK? All right, we are in informal
    recess.
        [Recess.]
        Mr. Oberstar. [Presiding] The Committee on Transportation
    and Infrastructure will resume its sitting. Apologies to all
    witnesses and Members and others for the over-long interruption
    by votes on the House Floor.
        There are a few things yet to be reviewed. What troubles
    me, Mr. Secretary and Mr. Scovel, is this June 16 request or
    previously the decision was made by Pipeline and Hazardous
    Materials, a request from FAA to test the compliance of various
    airlines' hazmat handling procedures. The FAA made that request
    in 2005, August of 2005.
        It took nearly a year for the Office of Pipeline and
    Hazardous Materials to respond, and they denied the request of
    FAA to undertake compliance testing of their airlines' hazmat
    handling procedures, while at the same time approving a number
    of special permits and extensions and approvals, which are a
    curious component of this agency's operations.
        How in heaven's name can they justify that conduct? The
    words of the denial are your application did not contain
    information to demonstrate that your proposal would be in the
    interest of the public. How can it not be in the interest of
    the public for the Federal Aviation Administration to conduct
    compliance review of airlines' participation in and compliance
    with movement of hazardous materials, especially in the
    aftermath of the Value Jet crash, especially in the aftermath
    of other incidents that we know about, that I know about of
    hazmat movement onboard aircraft?
        Do you want to start, Mr. Scovel?
        Mr. Scovel. Mr. Chairman, if I may, I confess I have no
    answer to you. We are as mystified as you appear to be by
    PHMSA's response to FAA's request. I will simply note that
    FAA's request was taken in response to a recommendation
    contained in our 2004 report, which examined FAA's own hazmat
    program. FAA, to its credit, accepted that recommendation,
    concurred in it and attempted to move out, and apparently was
    stymied by a PHMSA decision.
        Mr. Porcari. Mr. Chairman, likewise, I cannot explain the
    decision at the time. I will tell you, having been made aware
    of it and looking into it, it does not make sense to me. I have
    recently asked the FAA if they still believe it is worthwhile
    doing this and they want to do it. They have indicated yes and
    we are going to go ahead and do that.
        If there are concerns about crew members, for example,
    being confused by this labeling, if that was the concern, we
    can certainly make accommodations to notify the crew as to what
    is going on. There are ways to do this. My observation is I
    thought it was actually a very valid and useful way of actually
    testing some of the processes and making sure that the
    labeling, packaging, and placement was correct. So FAA is
    interested in doing it; we are going to go ahead and do that.
        Mr. Oberstar. Thank you for that response, but I would read
    from the request. The background, as Inspector General Scovel
    just said, the FAA says that the Department of Transportation's
    Office of Inspector General conducted an audit of FAA's
    hazardous materials program, issued a report and recommended
    that FAA develop and implement a covert testing program. That
    information was submitted to PHMSA.
        Further, FAA said that the FAA plans to ``package, mark,
    label, and document the shipments as if they were normal
    shipments of hazardous materials, but, for safety reasons, no
    actual hazardous materials will be used in conducting the
    covert tests.'' That is the responsibility of the agency, to
    test, to test their own people. They conduct internal reviews,
    audits, and evaluations of FAA maintenance inspection
    personnel, procedures, activities.
        This is an appropriate way to see whether the agency is
    doing its work, whether the airlines are doing their work; and
    they were denied, at the very same time that this agency
    approves hundreds of special permits for the industry to carry
    real hazardous materials.
        All right, thank you for proceeding with that issue and
    getting FAA back on track to doing their responsibilities.
        This is a good lead into the weaknesses found in the
    processing of approvals. The Inspector General's staff has
    found this; the Department is aware of it; our Committee
    investigative staff spent a good deal of time reviewing these.
    Approvals are different from special permits. An approval can
    be issued only if there is a specific provision in the
    regulation that allows the Office of Hazardous Materials to
    provide relief from a particular regulation. But consistently
    there is no showing of the need for that special approval, why
    the relief is requested, and it seems that while special
    permits have a limitation, there is no limitation or time limit
    on the approvals.
        Mr. Scovel, you have spent a good deal of time on that
    issue. What are your recommendations?
        Mr. Scovel. Mr. Chairman, we have a number of
    recommendations pertaining both to special permits and
    approvals. Our recommendation, if we were to speak very
    generally to the approval process, is that, like special
    permits, there needs to be a clearly defined and uniform
    approval application process, preferably web-based. We have
    met, my audit team has met twice with representatives of
    industry and this is one request that they have pointedly
    addressed to us, not expecting, of course, that we were in any
    position to approve it, but certainly hoping that we might
    incorporate it into our recommendations for the Committee's and
    the Department's consideration.
        Mr. Oberstar. Mr. Porcari?
        Mr. Porcari. Mr. Chairman, I agree with the clearly defined
    and uniform part of it. We owe consistency and predictability
    and transparency. That starts with asking the right questions
    and making sure that we have a comprehensive application that
    includes all the details that it needs to have. We clearly do
    not have that in all cases now. That is one of the things,
    going forward, that I know that we can do very quickly and will
    do quickly.
        Mr. Oberstar. These approvals are not published in the
    Federal Register. Will you direct the agency to do that in the
    future?
        Mr. Porcari. The approvals are required to be in the
    Federal Register; they will be in the Federal Register.
        Mr. Oberstar. Have you sent a directive to PHMSA to do this
    or you just told them verbally that that is what they will do?
        Mr. Porcari. I believe that they are required in the
    Federal Register.
        Mr. Oberstar. Yes, they are, but they are not published;
    they haven't been.
        Mr. Porcari. If they are not published, we will make sure
    that they are.
        Mr. Oberstar. And once a year PHMSA publishes its final
    action on special permit applications. Once a year. That is not
    transparency, openness. That ought to be concurrent with their
    action.
        Mr. Porcari. Mr. Chairman, we are clearly living in a
    different era, where it is a lot easier to be transparent. And
    when we are reporting basically in real-time on contacts that
    we are having in meetings, we can certainly have better than
    annual reporting on our permitting process. Again, having it
    web-based is one of the ways to do that.
        Mr. Oberstar. Now, an issue consistently over 20-plus years
    with this agency, the pipelines activity was grossly under-
    funded in the mid-1980's. I authored language in Committee and
    then on the House Floor in the appropriation process to
    increase the number of inspector positions for the pipeline
    inspection program, Federal and State, and increased funding
    for them. That has deteriorated over time and fallen off.
    Overall for the agency, first of all, how many inspectors does
    the agency have now for all of its activities? And both Mr.
    Scovel and Secretary Porcari, what are your recommendations for
    staffing improvements and increases?
        Mr. Scovel. Mr. Chairman, Deputy Secretary Porcari may have
    more recent information than I do, but my audit team, in the
    course of the last 14 months, determined that, at the time of
    their addressing this question, there were 35 inspectors on
    PHMSA's staff, as has previously been noted here on the record,
    that are responsible for 300,000 or so entities transporting
    and shipping and packaging hazmat.
        Our staff, we have kicked around the question of how PHMSA
    can gain better control of this inspection process. Certainly,
    the number of inspectors is one key target. As you well know,
    sir, FAA has wrestled with the same question in connection with
    their inspection process. It is universally acknowledged there
    can never be enough inspectors; however, with the proper risk-
    based oversight system and with the proper staffing study, both
    of which we think are now currently missing from PHMSA's
    effort, they can better leverage what they have.
        It is also worth noting, sir, that the other modes in the
    Department, FMCSA, FAA, FRA, as well as various States, have
    inspector resources. PHMSA must better integrate those
    resources and leverage them together because they will never
    have enough inspectors of their own. But it is a multi-phased
    and a multi-pronged effort that PHMSA needs to undertake in
    order to strengthen its inspections.
        Mr. Oberstar. So intermodalism would be a benefit to the
    entire inspection process. In the surface transportation
    assistance bill that we have reported from Subcommittee, I
    create a council on intermodalism and an under secretary for
    intermodalism, and require a monthly meeting of the modal
    administrators, among other responsibilities, to develop a
    national strategic safety plan to integrate the competencies of
    all the modes on safety; and, if we get this bill enacted, that
    will be a requirement and will be on the top of the priority
    list.
        Meanwhile, you don't have to wait for that. Meanwhile, you
    can bring those modal administrators together and ask them to
    develop a common safety plan and how to harness the resources
    of--it should be--it has been said many--one department, one
    DOT, everyone pulling together. So intermodalism will be a way
    to do that.
        Mr. Porcari. Absolutely, Mr. Chairman. First, just on the
    numbers, there are currently 35 inspectors and 7 field
    supervisors, for a total of 42.
        The point about leveraging other inspectors in the field is
    a very important one that is an obvious way that we can work
    intermodally, and part of our plan going forward is to do just
    that, whether it is the Federal Aviation Administration, the
    Federal Motor Carrier Safety Administration, or any other asset
    in the Department. You can have a force multiplier by doing
    that.
        Finally, on intermodal safety as an organizing principle,
    if I may, the perspective I am coming from is from a State DOT
    that is the one truly intermodal State DOT. That was how it was
    organized, and one of the early discussions with Secretary
    LaHood when I came on board was safety as an organizing
    principle at U.S. DOT. I do not want to steal the Secretary's
    thunder, and I am aware of the provision in the bill that has
    been marked up. But I will tell you that there are some very
    important steps forward in the Department with safety as an
    intermodal organizing principle that the Secretary has directed
    and perhaps, most appropriately, he should describe, but we are
    moving forward on that right now.
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        [GRAPHIC] [TIFF OMITTED] T2158.027

        Mr. Oberstar. That is very encouraging. I am delighted to
    hear that. That is the first good news, structurally, about
    this Department I have heard in a long time.
        Just a little reminiscence. I was administrative assistant
    for my predecessor, John Blatnik, who was chair of the
    Executive and Legislative Reorganization Subcommittee of the
    Committee on Government Operations at the time that President
    Lyndon Johnson proposed establishing a Department of
    Transportation. He made that recommendation in January of 1966
    and sent his staff up to meet with us and with Senator
    Magnuson's staff in the other body, and we spent from January
    through October crafting the proposal to bring 34 agencies of
    Government together under one roof in the Department of
    Transportation. Hearings and markup in Subcommittee and passage
    on the House Floor, conference with the Senate. In October,
    President signed the bill. We thought they are all going to
    work together. They haven't. It has been a disappointment.
        With this legislation, the surface transportation bill, we
    are going to make that legislative change and cause this
    synergy to happen among all the modal administrations, and
    starting with safety.
        Mr. Porcari. Well, again, it is a very important point even
    in the absence or preceding any legislation. There is an awful
    lot that you can do as Secretary organizationally, and
    Secretary LaHood is actually in the process of doing that right
    now. There is much more intermodal work and cooperation
    specifically on safety issues than we have had in the past, and
    I think of it as low hanging fruit; it is something that is
    relatively quick and easy to do and get some measurable
    benefits from.
        Mr. Oberstar. That is very important and good. I encourage
    you and Secretary LaHood to continue pressing forward with
    this. Also, we need to revisit the issue of special permits and
    approvals and the follow-ups to those and this rather
    incoherent process, two years and four years and unlimited time
    frames.
        Mr. Scovel, do you have some recommendations for how this
    process of permitting can be rationalized?
        Mr. Scovel. I do, Mr. Chairman. And if you will permit me
    to offer recommendations for the Committee's consideration, as
    well as the Department's, based on all of our audit work; it
    goes beyond simply the permitting and approval process.
        I just mentioned the improved application process.
    Certainly, that is one that may well be low hanging fruit, in
    Mr. Porcari's terms, for the Department to implement.
        Number two, special permits for trade associations. The
    Department, to its credit, has made clear that those will not
    be issued to associations, they will be issued to individual
    members. However, there is still the question of 5,000 members
    of associations in the field perhaps believing that they can
    continue to operate under special permits issued to their
    associations. That needs to be addressed. There hasn't been the
    level of fitness determination made company by company yet, and
    safety demands it.
        Fitness definition, a precise definition of what
    constitutes an applicant's fitness to conduct the activity
    authorized by the permit or approval.
        Next, safety history.
        Mr. Oberstar. On that point, isn't there a standard for
    fitness in FAA?
        Mr. Scovel. I believe there is, sir, but----
        Mr. Oberstar. There are the three--fit, willing, and able--
    and fitness is a very clear standard established both in law
    and in practice in the FAA, and there should be some lessons
    learned and applied to PHMSA.
        Mr. Scovel. I agree, sir. In fact, within the PHMSA
    context, the definition is not nearly as clear as it is applied
    in other modes. As you know, the regulation permits PHMSA to
    find that an applicant is fit based on prior compliance
    history, information in the application itself, and other
    information available to the associate administrator. Very
    broad; too general; not helpful to applicants, as well as to
    those who must administer the process.
        That gets me, really, to my next point, and that is safety
    history as a factor in determining fitness. PHMSA fought and
    won this battle back in 1996. We determined, conducting our own
    little history study, at the time this regulation was written,
    PHMSA received industry conducts opposing the use of compliance
    history to assess an applicant's fitness.
        At the time, RSPA, PHMSA's predecessor, disagreed with
    those comments and stated in the preamble to the final rule,
    and I will quote: ``Enforcement actions may be indicative of an
    applicant's ability or willingness to comply with the
    applicable regulations. Because the associate administrator is
    considering whether to authorize compliance with specific
    alternatives to the HMR, the likelihood of an applicant's
    compliance with those alternatives is relevant to public
    safety.'' And the final rule did establish that an applicant's
    compliance history should be or may be considered, and that is
    the operative language here; it is not required, but it may be
    considered by the administrator in determining fitness.
        Mystifying, as well, to us is why PHMSA, in the years since
    fighting and winning that battle, has ceded the ground to
    industry, for whatever reasons that can't be known to us at
    this point. But PHMSA has made clear that they do not consider
    safety history as a relevant factor in determining fitness.
    They confine their examination to the four corners of the
    applicant itself: action, process, package. That is pretty much
    all that they are looking at. That seems to us to fly in the
    face of common sense and we strongly recommend that the
    Department address that.
        Mr. Oberstar. Should that be changed in law? Should law
    itself define that more clearly, instead of leaving it to
    regulation that can be changed and opposed and undermined from
    time to time?
        Mr. Scovel. That is a policy question, of course, sir, but
    we would think that it is an important enough point to be
    enshrined in law.
        Mr. Oberstar. Thank you.
        Mr. Scovel. A couple of other points, and then I will
    yield.
        Level of safety, as well, needs to be addressed for the
    benefit of applicants, as well as administrators.
        The agency should establish a coordination working group.
    One of the points that we highlighted in our testimony today is
    the lack of coordination between PHMSA and the other modes in
    determining safety history, for one, enacting on applications.
        Next, an enhanced risk-based approach to oversight. As our
    testimony today, our statement made clear, PHMSA does not cite
    as a priority factor in its oversight system whether a hazmat
    carrier may be a holder of special permits or approvals. We
    think that it is important enough to be included as a priority
    factor in addition to what PHMSA already recognizes; accident
    investigation, third-party complaint inquiries, and fitness
    inspections.
        Finally, longstanding safety concerns, Mr. Chairman; time
    frames for resolving matters like bulk explosive vehicle
    questions, lithium batteries, and, as Mr. Porcari has
    mentioned, a process at the Department level to resolve such
    intermodal disputes.
        Thank you.
        Mr. Oberstar. That is a very comprehensive list. Thank you
    for that listing.
        Mr. Secretary, do you want to respond to those points?
        Mr. Porcari. Just very briefly, Mr. Chairman. I think those
    are all very valid points. I would like to just underscore one
    of them in particular, the relevance of safety history in the
    fitness definition. We should--not may, but should--certainly
    take that into account. I think that certainly is common sense
    and directly relevant to the overall fitness of an applicant.
        Mr. Oberstar. Thank you. Whatever you can do by regulatory
    change you should do. You are clearly on track toward doing
    that, and whatever else is necessary we will incorporate in
    legislative language in our crafting of the next transportation
    bill.
        Inspector General Scovel, have you reviewed the
    Department's program for the future, the proposals listed in
    the Secretary's statement? This plan of action looks good on
    its surface. It seems to me that there is very specific time
    frames--within 10 working days, within 15 days, within 15 days,
    within 30 days--actions to be taken. Looks to me like a good
    checklist.
        Mr. Scovel. It is, sir. Frankly, we were very impressed
    that the Department's senior leadership acted as quickly as
    they have in order to attempt to impose control from their
    level over PHMSA's process for special permits and approval,
    and that was really the subject matter of our own inquiry. As I
    previously noted this morning, details remain to be filled in.
    Although the action plan addresses special permits, very
    little, if any, mention made of approvals, for instance, a
    point that you made. And a continuing point for us, trade
    association permits. A plan needs to be put in place. Industry
    needs to be notified. The genie needs to be put back in the
    bottle regarding all of those 5,000-plus permits.
        Mr. Oberstar. And as a corollary to that point, shouldn't
    there be some guidance, direction, understanding of a culture
    of safety of having an arm's length relationship with those
    whom the agency regulates?
        Mr. Scovel. Yes. And that is a point that has been made
    repeatedly in this hearing room mode to mode to mode. As we
    look at it, Mr. Chairman, partnership is the term that is often
    used between modal administrators and their staffs and the
    industries that they regulate. In my view, partnership can
    sometimes cross the line into the goal, instead of being a
    means to the end of instituting as safe a program as we
    possibly can. That should be, we think, a key part of any
    safety culture re-education effort within PHMSA, as well as
    other modes.
        Mr. Oberstar. Mr. Secretary, apparently, you agree with
    that?
        Mr. Porcari. Mr. Chairman, you will find me agreeing that
    it is important to have a correct relationship with industry,
    and with all that implies. We certainly solicit input. We
    should never, and will not, cede the essential safety function
    and the regulatory role that serves that safety function.
        Mr. Oberstar. This is the third in a series of failures
    within the Department. Well, the Coast Guard is no longer in
    the Department, but in my mind they still are. But there was
    this indistinguishable link between the Coast Guard and its
    contractor, Lockheed Martin, who were given authority to self-
    approve their work. The second was the FAA and the customer
    service index.
        And the third now is PHMSA. Enough. We are drawing the
    line, cleaning house, changing the culture, putting it on the
    right track. We appreciate what you are doing and we will
    continue to oversee. Safety is an ever-vigilant responsibility.
    And for those who think that we have had the hearing, we had to
    look at the agency, and we can now take a deep breath and they
    will all go away, I am not going away and safety is not going
    away.
        I grew up in the family of an underground miner, where
    lives depended on each other and on the equipment with which
    they worked, and I will never forget my father's comment when I
    asked--he was chairman of the safety committee for 26 years in
    the Godfrey underground mine. I said, what sticks in your mind,
    Dad? He said the most unforgettable sound in the underground is
    the screams of the men when the cable on the cage broke and
    there was nothing to stop their fall to their death. You never
    relax your vigilance on safety.
        Thank you very much for your testimony.
        Mr. Porcari. Thank you, sir.
        Mr. Oberstar. Our next witness is Mr. Lon Santis, Manager
    of Technical Services for the Institute of Makers of
    Explosives.
        Mr. Santis, welcome to our Committee and to the hearing.
    Your full statement will be included in the record. You may
    summarize as you wish and proceed with your statement, which I
    read in great detail.

       TESTIMONY OF LON D. SANTIS, MANAGER, TECHNICAL SERVICES,
           INSTITUTE OF MAKERS OF EXPLOSIVES, WASHINGTON, DC.

        Mr. Santis. Thank you, Chairman Oberstar.
        IME members are dependent on special permits, or SPs,
    issued by PHMSA to transport bulk blasting agents and oxidizers
    in multi-purpose bulk trucks, or MBTs, that are specially
    designed for this purpose. The SPs apply unique and applicable
    requirements which provide for the safest and most secure way
    to deliver blasting materials to the job site.
        To our knowledge, there has never been a fatality, injury,
    or explosion attributed to the hazardous materials onboard
    these vehicles in over 10 million trips. This is only through
    the continual vigilance that the Chairman mentions and a
    culture of safety that exists within the explosives industry.
        Nonetheless, IME has cooperated over the years with PHMSA
    on enhancements to the safety of this type of transportation,
    the most recent effort starting in May of 2008. After
    considerable study, we expect to adopt measures in our standard
    for this activity, SLP-23, by the end of this year that address
    the root causes of rollover accidents with these vehicles.
        If SPs authorizing the use of MBTs are revoked or severely
    restricted, the resulting damage to the U.S. economy could be
    much worse than any single terrorist event. Industry does not
    have the capacity to deliver the billions of pounds of
    materials that are currently transported annually in MBTs by
    other modes or packaging. Additionally, risk to the public
    would increase because more sensitive products would replace
    those shipped by SP and more vehicles would be on the highways.
        Given the importance of MBTs to the national recovery and
    infrastructure development, we urge the Committee to take a
    reasoned and rational approach. This has not been entirely the
    case with the recent OIG management advisory and PHMSA's
    response. We object to the agency's use of sensational
    descriptors, direct comparisons to terrorists' intentional
    acts, and unfounded accusations of misbehavior.
        For example, statements that MBTs are bombs on wheels,
    catastrophes waiting to happen, and prone to rollover are out
    of proportion to any rational risk-based analysis of the
    operation of these vehicles. The public interest is not served
    by an appeal to emotion when objective analysis rooted in
    science is required.
        In addition to the absence of any fatalities or injuries,
    the public should know the following. The typical MBT has a
    center of gravity height of 75 inches, which is lower than the
    center of gravity height of the average loaded semi trailer. We
    believe that the average rollover rate per mile for MBTs is
    many times better than other vehicles with the same center of
    gravity height and wheel width. These materials will not
    accidentally explode from the forces encountered in the normal
    course of transportation if the transportation is compliant
    with the HMR.
        In an MBT accident, the risk is not increased if the
    materials mix, because sensitization only occurs within certain
    ranges of mixtures and methods of mixing that will not occur in
    an accident. There is very little probability that the bulk
    materials may explode in a fire, and MBTs minimize the overall
    risk to the public.
        Even though several MBTs have burned to the ground without
    incident, it is out of an abundance of caution that we
    recommend that when explosives or oxidizers are involved in a
    fire, that a standoff perimeter be established. These materials
    must be exposed to a fire for a long period of time before
    reaction can take place, in which time emergency responders can
    evacuate people to safety. To help ensure proper response is
    taken with explosives incidents, IME and PHMSA updated and
    distributed a training program to every fire department in the
    United States of America in 2003 on how to respond to these
    incidents.
        Several recommendations have been made that would impose
    unreasonable and onerous requirements on MBTs and increase
    risk. Perhaps the most serious of these is the suggestion to
    prohibit the transportation of class 8 materials on MBTs. This
    prohibition would jeopardize the latest advancement in MBT
    safety, which involves sensitizing non-explosive materials
    after they have been loaded into bore holes by the MBT. The
    result would be more vehicles on the highway and more sensitive
    explosive products being transported and used.
        IME has shared recommendations with both the OIG and PHMSA
    on how the SP program may be improved. The agency and Congress
    should focus on these deficiencies, not attempting to raise
    public fears and damage the reputation of the commercial
    explosives industry. MBTs do not present an unreasonable risk
    to health and safety or property, and the alternatives increase
    risk.
        I would be happy to answer any questions.
        Mr. Oberstar. You raise concern about characterization of
    the conveyance of explosive materials. I don't know to whom you
    have reference saying that they are bombs on wheels, but I have
    never, nor have my staff, characterized the movement of
    explosives by the industry in that way.
        And you may be very understandably sensitive to comparison
    to the McVeigh situation you cite in your testimony. It is not
    unreasonable for people who are not specialists in the field to
    fear that movement of these individual materials separately
    could result in an accident that produces this kind of tragedy.
    That Murrow Building explosion certainly captured the public
    attention and fear and concern.
        But that is not the purpose of this hearing. We are not
    here to ride herd on any individual company, but on the process
    by which PHMSA conducts its business and its oversight and
    establishes standards, and the issuance of special permits and
    then the approval process. The law makes it very clear the
    Secretary shall publish in the Federal Register a notice that
    an application for special permit has been filed and give the
    public an opportunity to inspect the safety analysis and
    comment on the application. That is not consistently done by
    PHMSA over all its years.
        But there is no such requirement for an approval, and there
    are vastly more approvals than there are special permits. In
    what way would the industry be disadvantaged if those approvals
    also were published in the Federal Register as a means of
    public notification?
        Mr. Santis. I am not sure the industry would be
    disadvantaged. However, I am not sure there would be a lot to
    gain by that. An approval is granted when a product meets
    certain specified criteria. It is a black or white issue; it
    either meets the standard, it passes the test that the United
    Nations has set or it doesn't.
        Therefore, it is quite different than a special permit, in
    which the special permit is granted when someone wants to
    engage in an activity that is slightly different than what the
    regulations require. The approvals must be given based on what
    the regulations require.
        Mr. Oberstar. But you have no objection to approvals being
    published in the Federal Register so that they are available to
    the public?
        Mr. Santis. My only concern would be an added
    responsibility on an already stretched thin workforce.
        Mr. Oberstar. That is their job. They can work more
    efficiently. And we will provide them with additional
    personnel. We will make sure there is funding and staffing to
    carry this out. But the public interest should come first.
        You also, in your testimony, state ``The Institute of
    Makers of Explosives is taking steps to add measure in its
    standards to address the major causes of rollovers.'' What are
    those steps and what do you mean by adding measure? Explain
    that statement.
        Mr. Santis. We have had a standard for MBTs for a number of
    years. When it was brought to our attention that PHMSA had
    concerns over the numbers of rollover incidents, we did not
    necessarily agree that the trucks are rollover prone and so
    forth, and thus did not believe that there was an imminent, an
    emergency situation. But, nonetheless, this industry is
    committed to safety, and as you have mentioned, there is a
    continuous vigilance on safety.
        So, in order to address those rollovers--and no one wants
    to have a single rollover--we looked at the causes of those
    rollovers, and the two causes were primarily driver error and
    tire issues. These trucks have to travel off-road on very
    severe conditions, and the tires take much more abuse than a
    normal vehicle, so it stands to reason that the tires would be
    a little bit more of an issue.
        So what we did was we pulled together not just the IME
    members, and this is one of the first times we have done this,
    we reached out to the entire regulated community and invited
    them to the table to talk about how we could improve or lower
    the probability that a rollover may occur. And we worked
    through that process and had many meetings, developed a number
    of recommendations relative to driver training, relative to the
    quality of tires.
        That is currently going through our subcommittee, will most
    likely be reviewed by the Committee that is responsible for
    this document in October. At that point it will go to our legal
    affairs committee and then on to our board of governors for
    final approval.
        Mr. Oberstar. I am very much familiar with the stability
    needed for MBTs; they operate in my district in the iron ore
    mines; travel on the highway in order to get to the mining
    location and then on location they have to go on very rugged
    terrain, and they have to have very careful training of the
    drivers and structural integrity of the vehicles so they don't
    roll over on the mine site. And there has to be very careful
    separation so that, should there be an accident, should these
    separate materials that have very powerful explosive
    capabilities, don't mix and accidentally explode.
        In the case of mining explosives for both coal mining, iron
    ore mining, and other hard rock mineral blasting, the most
    serious thing that has occurred has been a terrible fire, a
    fire that, in one case, burned for days. Extreme heat; melted
    aluminum, melted steel. That is very serious.
        So I understand what you are talking about. But I think
    that the agency itself needs to be doing a better job, and the
    question I would have is what is your view on conduct of safety
    fitness review by PHMSA of agencies that apply for special
    permits and approvals. Should they review the incident history?
    Should they review, as the Inspector General said, the safety
    history of the agency, its compliance history?
        Mr. Santis. Well, I would say that it would stand to reason
    that PHMSA would examine data generated by the Federal Motor
    Carrier Safety Administration. My understanding is that that
    agency is primarily responsible for evaluating the fitness of
    motor carriers. They accumulate a lot of data and information,
    and I can't see any reason why that information should not be
    taken into account.
        Mr. Oberstar. Very good. We will make sure that they do
    that.
        Has PHMSA told your members, separate from the show cause
    letter, that their permits will be revoked? Have you heard any
    comment from PHMSA that permits will be revoked?
        Mr. Santis. Not specifically. I think everyone realizes
    that a special permit is a privilege and that the specter of
    revocation always exists and that they must maintain the
    requirements to continue to hold that special permit. So they
    certainly know what can happen.
        Mr. Oberstar. I raise that point because it has come back
    to me and to staff from various of your members that this
    hearing and this review by the Inspector General is going to
    result in revocations, and there is no such plan underway by
    the Inspector General, nor is it the purpose of this hearing to
    do that. But PHMSA does propose modifications to special
    permits. Do you have any comments? Are you aware of their
    proposals and do you have comments on them?
        Mr. Santis. Yes. You are referring to the show cause
    letters, I believe?
        Mr. Oberstar. Yes.
        Mr. Santis. Yes. There are, well, essentially, most of
    these recommendations I think are based on the recommendations
    that the Institute brought to PHMSA in March of this year, so
    the things that we recommended and that are going to go into
    SLP-23 that are in the show cause letter, we certainly support.
        However, we do believe there are a couple of things in here
    that are not justified on a cost benefit basis. We believe that
    some technology that is discussed in here doesn't exist. We are
    not aware, for example, of a fuel cutoff device for these types
    of vehicles that will function at 45 degrees angle. We are just
    not aware of it.
        So there are some concerns and I think they have been
    expressed to the agency, and hopefully this process will
    continue on and we will come up with the meaningful and
    important additions to these----
        Mr. Oberstar. One of the proposals of PHMSA is driver
    qualification and training, ``The special permit grantee must
    annually audit its program for the qualification and training
    of the persons who operate the vehicles authorized under these
    special permits'' and lists three reasons or standards to be
    observed in that qualification and training. Do you have any
    objection to that?
        Mr. Santis. No. No. We train our drivers way beyond what
    the regulations require in our industry, and----
        Mr. Oberstar. Are their records annually or periodically
    reviewed, that is, apart from the commercial driver license
    activity, their conduct in driving of their personal vehicle?
        Mr. Santis. Yes.
        Mr. Oberstar. If they are stopped for a DUI?
        Mr. Santis. Yes. Yes, we support that. We support examining
    a driver's off-duty record in consideration of their fitness to
    drive an MBT, certainly.
        Mr. Oberstar. That is a standard that is used in aviation
    and that is important, and I am glad you are in conformity.
        On vehicle inspections and tire standards, do you have any
    objections to those items? You are familiar with them?
        Mr. Santis. Only some minor concerns about the tires. I
    know we have--we believe that a tire should not be in service
    for more than six years. However, the show cause letter goes a
    little bit further and says that a tire over six years old
    should not be on the vehicle. Part of the concern there is that
    people sometimes buy tires in large quantities and may not put
    the tire on until several years, and it is stored in a climate
    controlled condition so that it doesn't deteriorate. So we
    believe in the six year service life.
        Mr. Oberstar. Well, our purpose is not to modify or propose
    modifications of this show cause order, but it is part of the
    compliance spirit that I think is important both with PHMSA and
    within the industry. Do you have any other comments that you
    would like to make about questions I raised with Mr. Scovel or
    the Deputy Secretary?
        Mr. Santis. Only that we think that PHMSA must have the
    information that they need to do their job, and, in my
    experience, IME has always provided the information and PHMSA
    has made the decision. Providing that information gives PHMSA
    power. It especially gives PHMSA power at the United Nations.
        And as you may be aware, we participate in the Committee of
    Experts on the Transport of Dangerous Goods at the United
    Nations. IME has an NGO status; DOT is the United States'
    representative. At those meetings in Geneva, the IME and PHMSA
    come together to represent the United States. We are on the
    same team at the United Nations, and that requires a good deal
    of good deal of close interaction, simply because PHMSA does
    not have the personnel and the information on explosives that
    the industry has because it is our life's work, and they must
    regulate an entire cadre of hazardous materials and know a
    little bit about a lot of things; whereas, we have people that
    know pretty much everything about one thing.
        Mr. Oberstar. That is an interesting observation. The U.S.
    does this in many other--the International Maritime
    Organization has both U.S. Government and industry
    representatives, and the same with ICAO, the International
    Civil Aviation Organization, there are industry and Government
    personnel represented. So that is an interesting thought.
        As we conclude--I have to be at another Committee activity
    shortly--I want to just highlight your comment which was in
    your written testimony and which you delivered in your oral
    presentation: there has not been sufficient attention paid to
    the absence of any fatalities or injuries from these accidents.
    The absence of failure is not the presence, is not necessarily
    the presence of safety.
        That comment would be similar to saying that too much
    attention was paid in 1984 and 1985 to the reports of near
    midair events by the FAA when no fatalities resulted from
    aircraft flying too close to each other in the airspace. We got
    those reports. I was Chair of the Investigations Oversight
    Subcommittee at the time and the industry said, oh, pooh pooh,
    that doesn't mean that the airspace is unsafe.
        And then two aircraft collided over Cerritos, California.
    We had repeatedly raised this issue after we had repeatedly
    said we need something like a traffic collision avoidance
    systems and mode sea transponders onboard aircraft. And then
    when fatality occurred, the agency responded that is a
    graveyard tombstone mentality that must be banished from the
    safety arena. And it doesn't help to say these are incidents;
    these are accidents. These are situations that can and do
    result in fatalities.
        So these sorts of conditions are precursor to impending
    failure.
        Mr. Santis. That is right. We have a word for that in our
    industry; we call them near misses or lessons learned. And we
    pay an enormous amount of attention anytime something happens
    that could lead to a more serious event, and I believe that is
    how this industry has been able to improve itself to the point
    where--well, let me go back 100 years, when----
        Mr. Oberstar. Black powder and dynamite.
        Mr. Santis. Black powder, dynamite. Hundreds of people
    being killed annually in events. Today, we can count annual
    fatalities on one hand, and sometimes don't even need any
    fingers in a year; and that is through the continual vigilance
    that you talk about. It is through looking at lessons learned.
    For example, the rollovers. There were no explosions, fires
    from the rollovers.
        But that is not acceptable to us. The rollover indicates
    that there could be something happen; therefore, we need to
    address the rollover. Any time there is something that happens
    in our workplace that is the near miss, the close call,
    whatever word you use, we pay enormous amount of attention to
    it and treat it almost as if it was the catastrophe, because we
    know it could have been; and then we look at it and say what
    could we do to prevent that near miss from happening. We are
    ahead of the disaster that way.
        Mr. Oberstar. I thank you for those comments and hope that
    you take this hearing as a call to continued vigilance, and
    that the agency straightens out, they adopt a compliance
    attitude and an oversight responsibility. We will continue to
    review and monitor the actions of the agency and the industry's
    compliance therewith.
        Thank you very much for your testimony.
        Mr. Santis. Thank you.
        Mr. Oberstar. The hearing is adjourned.
        [Whereupon, at 1:22 p.m., the Committee was adjourned.]

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