[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]





                    REDUCING REGULATORY BURDENS AND
                    ENSURING SAFE TRANSPORTATION OF
                          HAZARDOUS MATERIALS

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

                                (112-24)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                       RAILROADS, PIPELINES, AND
                          HAZARDOUS MATERIALS

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 12, 2011

                               __________

                       Printed for the use of the
             Committee on Transportation and Infrastructure





               Available online at: http://www.fdsys.gov/




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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                    JOHN L. MICA, Florida, Chairman

DON YOUNG, Alaska                    NICK J. RAHALL II, West Virginia
THOMAS E. PETRI, Wisconsin           PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina         JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee       ELEANOR HOLMES NORTON, District of 
FRANK A. LoBIONDO, New Jersey        Columbia
GARY G. MILLER, California           JERROLD NADLER, New York
TIMOTHY V. JOHNSON, Illinois         CORRINE BROWN, Florida
SAM GRAVES, Missouri                 BOB FILNER, California
BILL SHUSTER, Pennsylvania           EDDIE BERNICE JOHNSON, Texas
SHELLEY MOORE CAPITO, West Virginia  ELIJAH E. CUMMINGS, Maryland
JEAN SCHMIDT, Ohio                   LEONARD L. BOSWELL, Iowa
CANDICE S. MILLER, Michigan          TIM HOLDEN, Pennsylvania
DUNCAN HUNTER, California            RICK LARSEN, Washington
ANDY HARRIS, Maryland                MICHAEL E. CAPUANO, Massachusetts
ERIC A. ``RICK'' CRAWFORD, Arkansas  TIMOTHY H. BISHOP, New York
JAIME HERRERA BEUTLER, Washington    MICHAEL H. MICHAUD, Maine
FRANK C. GUINTA, New Hampshire       RUSS CARNAHAN, Missouri
RANDY HULTGREN, Illinois             GRACE F. NAPOLITANO, California
LOU BARLETTA, Pennsylvania           DANIEL LIPINSKI, Illinois
CHIP CRAVAACK, Minnesota             MAZIE K. HIRONO, Hawaii
BLAKE FARENTHOLD, Texas              JASON ALTMIRE, Pennsylvania
LARRY BUCSHON, Indiana               TIMOTHY J. WALZ, Minnesota
BILLY LONG, Missouri                 HEATH SHULER, North Carolina
BOB GIBBS, Ohio                      STEVE COHEN, Tennessee
PATRICK MEEHAN, Pennsylvania         LAURA RICHARDSON, California
RICHARD L. HANNA, New York           ALBIO SIRES, New Jersey
STEPHEN LEE FINCHER, Tennessee       DONNA F. EDWARDS, Maryland
JEFFREY M. LANDRY, Louisiana
STEVE SOUTHERLAND II, Florida
JEFF DENHAM, California
JAMES LANKFORD, Oklahoma
VACANCY

                                  (ii)



     Subcommittee on Railroads, Pipelines, and Hazardous Materials

                  BILL SHUSTER, Pennsylvania, Chairman

GARY G. MILLER, California           CORRINE BROWN, Florida
SAM GRAVES, Missouri                 JERROLD NADLER, New York
SHELLEY MOORE CAPITO, West Virginia  RICK LARSEN, Washington
JEAN SCHMIDT, Ohio                   TIMOTHY H. BISHOP, New York
CANDICE S. MILLER, Michigan          MICHAEL H. MICHAUD, Maine
JAIME HERRERA BEUTLER, Washington    GRACE F. NAPOLITANO, California
RANDY HULTGREN, Illinois             DANIEL LIPINSKI, Illinois
LOU BARLETTA, Pennsylvania           JASON ALTMIRE, Pennsylvania
LARRY BUCSHON, Indiana               TIMOTHY J. WALZ, Minnesota
BILLY LONG, Missouri                 LAURA RICHARDSON, California
PATRICK MEEHAN, Pennsylvania         ALBIO SIRES, New Jersey
RICHARD L. HANNA, New York           PETER A. DeFAZIO, Oregon
STEPHEN LEE FINCHER, Tennessee       JERRY F. COSTELLO, Illinois
JEFFREY M. LANDRY, Louisiana         NICK J. RAHALL II, West Virginia
JEFF DENHAM, California                (Ex Officio)
JOHN L. MICA, Florida (Ex Officio)
VACANCY

                                 (iii)

                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................    vi

                               TESTIMONY

Boston, David W., President, Owen Compliance Services, Inc., on 
  behalf of the Institute of Makers of Explosives................    67
Byrd, LaMont, Director, Safety and Health, International 
  Brotherhood of Teamsters.......................................    67
Chapman, Sandra, Director of Transportation, Corporate Regulatory 
  Affairs, Sherwin-Williams Company, on behalf of the American 
  Coatings Association...........................................    67
Derig, Paul, Environmental, Health and Safety Manager, J.R. 
  Simplot Company, on behalf of the Agricultural Retailers 
  Association....................................................    67
Quarterman, Hon. Cynthia, Administrator, Pipelines and Hazardous 
  Materials Safety Administration................................    67
Windsor, Barbara, Chairman, American Trucking Associations.......    67

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Graves, Hon. Sam, of Missouri....................................   111

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Boston, David W..................................................   116
Byrd, LaMont.....................................................   126
Chapman, Sandra..................................................   137
Derig, Paul......................................................   140
Quarterman, Hon. Cynthia.........................................   146
Windsor, Barbara.................................................   158

                       SUBMISSIONS FOR THE RECORD

Boston, David W., President, Owen Compliance Services, Inc., on 
  behalf of the Institute of Makers of Explosives, response to 
  request for information from Hon. Shuster, a Representative in 
  Congress from the State of Pennsylvania........................    80
Brown, Hon. Corrine, a Representative in Congress from the State 
  of Florida, request to submit the following for the record:
  Pipeline and Hazardous Materials Safety Administration, ``New 
    Approaches Needed in Managing PHMSA's Special Permits and 
    Approvals Program,'' Report No. AV-2010-045, March 4, 2010...     5
  Committee on Transportation and Infrastructure, Summary of 
    Subject Matter for hearing on ``Concerns with Hazardous 
    Materials Safety in the U.S.: Is PHMSA Performing Its 
    Mission?'' September 9, 2009.................................    38
  Air Line Pilots Association, International, written statement..    59
Byrd, LaMont, Director, Safety and Health, International 
  Brotherhood of Teamsters, response to request for information 
  from Hon. Brown, a Representative in Congress from the State of 
  Florida........................................................    96
Derig, Paul, Environmental, Health and Safety Manager, J.R. 
  Simplot Company, on behalf of the Agricultural Retailers 
  Association, response to request for information from Hon. 
  Richardson, a Representative in Congress from the State of 
  California.....................................................    92
Quarterman, Hon. Cynthia, Administrator, Pipelines and Hazardous 
  Materials Safety Administration:
  Response to request for information from Hon. Shuster, a 
    Representative in Congress from the State of Pennsylvania....    99
  Response to request for information from Hon. Brown, a 
    Representative in Congress from the State of Florida.........   102



 
                    REDUCING REGULATORY BURDENS AND
                      ENSURING SAFE TRANSPORTATION
                         OF HAZARDOUS MATERIALS

                              ----------                              


                        Tuesday, April 12, 2011

                  House of Representatives,
Subcommittee on Railroads, Pipelines, and Hazardous 
                                         Materials,
            Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 3:00 p.m., in 
room 2167, Rayburn House Office Building, Hon. Bill Shuster 
[chairman of the subcommittee] presiding.
    Mr. Shuster. The hearing will come to order.
    Good afternoon. Welcome everyone. Thanks for being at this 
subcommittee hearing on railroads, pipelines, and hazardous 
materials.
    As you might notice, this is a fly-in day, so we might be 
light on members here. I am informed the ranking member will be 
here. She is en route. We are glad to have Mr. Filner here 
today.
    The hearing today will focus on the reauthorization of 
hazardous materials safety programs of the Pipeline and 
Hazardous Materials Safety Administration, or PHMSA. The 
current authorization of these programs expires September 30th, 
2008.
    We also will be focused on how we can best reduce the 
regulatory burdens while ensuring hazardous materials are 
transported in a safe and efficient manner.
    We have a distinguished panel of witnesses here with us 
today, and it is my pleasure to welcome back Administrator 
Cynthia Quarterman, the Administrator of PHMSA. I believe this 
is your first trip up here in 2011. In 2009 and 2010, I think 
we saw you here about every week, so we are very familiar with 
you, as you are with us. So, again, thanks for being here.
    I think, as most people know, that the Transportation 
Committee is working on the reauthorization of a transportation 
bill, and it is important that I say transportation bill. In 
years past, it has really been called the highway bill, but 
Chairman Mica is going to put great focus on it being a 
transportation bill looking at the wide variety of 
transportation needs we have in this country.
    In addition to a strong rail title which will be included 
in the reauthorization, we are looking to reauthorize hazardous 
materials safety programs in the transportation bill and look 
forward to the discussion here today.
    I am interested in highlighting some of the key areas that 
I feel strongly must be given closer examination and that we 
have raised before: special permits and approvals and cargo 
tank wetlines.
    Special permits provide a means for varying from a specific 
provision of the Hazardous Materials Regulation, the HMR, in a 
way that achieves at least an equivalent level of safety to 
regulations or is otherwise consistent with public interest.
    Similarly, special permits and approvals allows its holder 
to perform a particular function that requires consent under 
the HMR. For example, explosives and fireworks may only be 
transported with an approval. To be issued, a special permit or 
approval of the application must have a fitness determination 
made by PHMSA.
    In October of 2009 and August, 2010, PHMSA changed its 
procedure for conducting fitness determinations for special 
permits and approvals. I am concerned that PHMSA failed to go 
through usual notice and comment procedures in making these 
changes. Doing so in this manner lacks transparency and takes 
away the ability of stakeholders to give their input. Moreover, 
the current criteria for judging fitness are not entirely 
clear, which creates a climate of regulatory uncertainty.
    During the same period of time, PHMSA noticed a rulemaking 
that became final on January 5, 2011, requiring additional 
information in special permit applications. Much of this 
additional information does little to increase safety, while 
creating unnecessary burdens on shippers, while also increasing 
costs.
    We are focused on streamlining the special permit and 
approval procedures, incorporating more special permits into 
the hazardous materials regulations, and establishing fitness 
criteria in a manner that promotes consistency, predictability, 
and transparency. Doing so will both enhance safety and allow 
the economy to grow.
    I also want to touch on the issue of cargo tank wetlines. 
We have addressed this issue in the subcommittee previously and 
will discuss it in more detail today.
    According to the U.S. Department of Transportation, from 
1999 to 2009 there were eight incidents of fatality or injury 
attributed to wetline releases. There are over 50,000 cargo 
tank shipments of flammable liquids each day, meaning the risk 
of a fatal wetline incident is one in 30 million. Despite this 
low incident rate, in January, 2011, PHMSA issued a notice of 
proposed rulemaking on this issue to require trucks to undergo 
retrofits or meet certain performance standards that would 
increase costs. Simply put, the rulemaking overstates the 
benefits of changes to wetlines regulation and underestimates 
the significant cost to retrofit tank trucks and the inherent 
risk of retrofitting.
    In closing, I am looking forward to hearing from our 
witnesses regarding issues concerning maintaining uniformity 
and avoiding duplication. I continue to highlight in our 
hearings that, throughout our government, I am deeply concerned 
with the regulatory overreach that cripples our economy, 
stifles job creation, and ties our Nation in red tape.
    I applaud President Obama for his recent comments on 
reducing the regulatory burden and for calling for a 
governmentwide review of burdensome regulations. However, it 
seems like every time I turn around, another agency is making--
moving forward with new, difficult, and expensive rulemakings.
    We must ensure that our regulatory process maintains the 
highest level of safety while appropriately balancing the 
importance of promoting economic growth, innovation, and 
competitiveness and job creation. There is a significant 
disconnect between the President's word and the action of many 
of the agencies in his administration.
    And, with that, I would like to yield to the ranking 
member, if she has a statement.
    Ms. Brown. Thank you for holding this important hearing on 
the reauthorization of the Department of Transportation 
hazardous materials safety program.
    Last Congress, when I was chair of this subcommittee--it 
seems like a very long time ago--we conducted an extensive 
investigation, along with the DOT general, which raised some 
serious safety concerns within the agency. I am happy to be 
here today to hear from PHMSA and other stakeholders to see how 
the program is doing, how they have made it safer, and what we 
need to consider as we work to reauthorize the important safety 
program.
    SAFETEA-LU made a number of significant changes in the 
hazardous materials safety program. The law provided DOT with 
enhanced inspecting authority. Last time we had a PHMSA in this 
room, we testified--I raised concerns about the number of 
inspectors we had. In 2009, it was just 35 inspectors to 
monitor in the entirety of the entire country. Today, I 
understand we are up to 51, which I believe will go a long way 
to conduct more adequate inspections and help ensure compliance 
with the regulations. Yet I believe there is still a lot of 
room for improvement. Fifty-one inspectors for 300,000 entities 
is not a lot.
    SAFETEA-LU also strengthens training requirements and 
doubles funding for the firefighters training program. The 
hazardous material emergency preparation grant program is 
critically important for training firefighters and other 
workers on how to respond to accidents and incidents involving 
hazardous material. PHMSA estimated that the program provided 
more than two million emergency responses with initially 
trained or re-certifying trainees.
    As we look forward to reauthorization, I think it is 
important to continue this program and to ensure that the level 
of training these firefighters and other HAZMAT workers are 
receiving is adequate.
    I look forward to hearing today about what changes they 
have made to the special permitting and approval program, the 
subject of our investigation just 2 years ago. During our 
investigation, we discovered that the agency was not reviewing 
the applicant's safety record before issuing these exemptions 
from safety regulations. It did not follow up on unreported 
incidents. In many cases, it did not know whether a carrier was 
even authorized to transport hazardous material.
    At that time, we issued an alarming number of special 
permits or exemptions from important safety regulations and 
provided little or no oversight to the program. Special permits 
and approvals are not a right but a privilege for carriers to 
be exempted from certain HAZMAT regulations. In law, safety is 
mandated to be the highest priority. We need to make sure that 
there is significant oversight over this program, that 
exemptions are not just blindly handed out to individuals or 
trade associations. Safety background review and fitness 
determinations are a critical part of making this program a 
success so that, while commerce is not hindered, safety is not 
compromised.
    I would like to state for the record that I think it would 
have been more appropriate that the DOT Inspector General 
testify before us today to discuss their investigations and 
recommendations.
    I would like unanimous consent to submit for the record a 
copy of the DOT IG report and a copy of the committee's reports 
on its investigation and findings.
    Mr. Shuster. Without objection, so ordered.
    [The information follows:]



    
    Ms. Brown. And I ask unanimous consent for a statement from 
the Air Line Pilots Association to be included in the hearing 
records
    Mr. Shuster. Without objection, so ordered.
    [The information follows:]



    
    Ms. Brown. With that, I thank the witnesses for appearing 
before our subcommittee today, and I look forward to hearing 
their testimony.
    Mr. Shuster. I thank the ranking member; and, Mr. Filner, 
if you have an opening statement.
    Mr. Filner. Thank you, Mr. Chairman.
    I would like to take advantage, though, first of the fact 
that there is Chairman Shuster in the room by moving that we 
reinstate all earmarks in the transportation bill.
    Mr. Shuster. Without objection. I am OK with that. I have 
just got to get my leadership to go along with that.
    Mr. Filner. Thank you.
    I want to talk just briefly, Mr. Chairman, about one issue 
that will come up in the testimony, and that is primary lithium 
metal batteries and cells.
    As you know, we passed the FAA Reauthorization Act 
recently, which included a provision that prohibits the 
Department of Transportation from enacting safety standards for 
lithium batteries and cells that exceed the standards set by 
the International Civil Aviation Organization, ICAO. I think it 
is absurd that the United States government would be prohibited 
from doing anything to protect U.S. citizens beyond the 
standard set by an unelected group of these representatives. 
The convention that set up ICAO made clear that the U.S. and 
any other country would have the right to adopt regulations to 
protect the safety of its citizens and would not be prohibited 
from doing so by ICAO. This right was provided to each 
signatory which was signed in 1944.
    This right to protect our citizens was also codified in our 
own law. Section 5120 of title 49 allows the Secretary to 
prescribe a safety standard or requirement more stringent than 
the standard or requirement adopted by international authority 
if the Secretary decided the standard or requirement is 
necessary in the public interest.
    When we considered the FAA bill, I intended to offer an 
amendment that would restrict the carriage of primary 
nonrechargeable lithium metal-based batteries and cells on 
cargo aircraft. It would have prohibited these dangerous 
materials on cargo aircraft until safe packaging materials were 
available and proven to contain a fire and the cargo aircraft 
itself was equipped with an effective fire suppression system.
    It would also--my amendment would have required cargo 
aircraft be equipped with smoke suppression systems that 
maintain cockpit visibility sufficient to allow the pilots to 
see basic flight instruments and outside environments at all 
times during emergencies when dense, continuous smoke was in 
the cockpit.
    Now, I withdrew my amendment, due to concerns that the 
language would prohibit the transportation of life-saving 
medical devices, but I think the problem of the safety still 
remains.
    As you all know, I think there are two types of lithium 
batteries, the primary nonrechargeable and secondary or 
rechargeable. My amendment only affected primary, 
nonrechargeable metal-based batteries and cells, which 
constitute, at the most, 5 percent of batteries shipped. These 
batteries and cells use a different manufacturing process in 
which lithium metal is used versus lithium ions, which are used 
in the secondary type battery. The metal used is much more 
volatile at low temperatures and easily catches fires.
    While shipments containing primary lithium metal batteries 
have been banned on both foreign and domestic passenger 
aircraft since 2004, there is no such restriction on the 
Nation's all-cargo carriers. Lithium metal batteries are 
increasingly finding their way into our air transportation 
system. Airlines such as UPS and FedEx are flying hundreds of 
thousands of lithium metal batteries on a daily basis.
    For years, cargo aircraft have safely carried hazardous 
materials, but lithium metal battery fires exceed the existing 
design specifications of commercial aircraft. Currently, there 
is no fire suppression system, as I understand it, that is 
capable of extinguishing a lithium metal battery fire in 
flight. In fact, on February 7, 2006, a fire caused by lithium 
metal batteries on board UPS Flight 1307 destroyed the 
aircraft. The pilots, fortunately, were able to land the flight 
and evacuate the plane before it became fully engulfed in 
flames. But the NTSB investigation raised serious questions 
about the safety of transporting these materials and the 
adequacy of fire suppression systems.
    The report also showed that the pilots were unable to see 
their hands in front of them as they exited the plane. Now, 
thankfully, they were close enough to the airport before the 
smoke blinded them; and if the flight had been further out it 
could have crashed into a populated area.
    Dense cockpit smoke caused by lithium battery fires has 
also resulted in other tragic crashes, including the fatal 
crash of UPS flight number 6 on September 3rd, 2010, in Dubai. 
According to the accident report issued by Dubai's government, 
the cargo of this UPS plane included lithium batteries that 
should have been declared as hazardous cargo. They were not, 
and there were no hazardous cargo declarations on the flight's 
manifest, but at least three of the shipments contained 
rechargeable lithium battery packs that should have been 
treated as hazardous cargo on an international shipping 
regulations. So we have a harrowing picture here of pilots 
struggling to land their plane while running low on emergency 
oxygen, fighting smoke so thick they couldn't see their flight 
instruments.
    This report raises serious questions about shipment of 
lithium batteries which can short circuit and cause fires that 
burn hot enough to melt an airplane. Fires involving 
rechargeable lithium ion batteries can reach 1,100 degrees, 
close to the melting point of aluminum, a key material, of 
course, in airplane construction. Lithium metal batteries fires 
are far hotter, capable of reaching 4,000 degrees.
    In light of these incidents, Mr. Chairman, I believe we 
have a responsibility to act to prevent future tragedies; and 
until adequate packaging and fire suppression systems are in 
place, we need to restrict the carriage of primary lithium 
metal batteries and cells aboard cargo aircraft.
    I thank the chair for the time.
    Mr. Shuster. I thank the gentleman.
    Now, Mr. Bucshon, do you have an opening statement?
    Dr. Bucshon. Good afternoon. I am Congressman Bucshon from 
Indiana's 8th Congressional district and, in the past, a 
cardiothoracic surgeon; and I do want to comment just briefly 
on the lithium battery issue as it relates to airline safety.
    I was not in support of the amendment that was proposed and 
then withdrawn based on the fact that what we have learned from 
medicine through the years is applicable to a lot of things. 
There are a lot of anecdotes in the world about what can 
happen, what has happened, and what could happen. But I think 
Congress should regulate based on factual information.
    Some of the airline instances that have been mentioned, 
there is no definitive evidence that the lithium batteries is 
what caused the problem, in addition to the fact that hundreds 
and hundreds of thousands of these type of things have been 
transported on planes across the world with what we can find 
about two quoted instances of possible resulting airline 
damage.
    My State, Indiana, is the second-largest producer of 
medical devices in the country; and adding this type of 
unnecessary regulation based on anecdote would significantly 
hurt the economy, putting possibly 20,000 jobs at risk, based 
on the increased costs.
    Again, in my view, with some anecdotal evidence, I think 
this is one of the things that we need to avoid. One of the 
reasons I came to Congress is we need to avoid the Federal 
Government always stepping up when there is a very isolated 
incident and creating broad policy, again, based on anecdotal 
information.
    So, again, in regards to this type of regulation in 
general, I think Congress needs to avoid that and go with 
statistical analysis, statistical fact, and have appropriate 
regulation to protect the American people and to protect the 
world.
    Thank you.
    Mr. Shuster. I thank the gentleman.
    And, again, I want to thank all members for being here 
today. This is our fly-in day, so we typically don't have 
hearings on the first day back, but I am trying to change it up 
so that we can get our work done and not be interrupted by 
votes and things like that. So I appreciate all you members for 
being here.
    With that, we will start with our witnesses.

 TESTIMONY OF THE HONORABLE CYNTHIA QUARTERMAN, ADMINISTRATOR, 
PIPELINES AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION; DAVID 
W. BOSTON, PRESIDENT, OWEN COMPLIANCE SERVICES, INC., ON BEHALF 
    OF THE INSTITUTE OF MAKERS OF EXPLOSIVES; LAMONT BYRD, 
   DIRECTOR, SAFETY AND HEALTH, INTERNATIONAL BROTHERHOOD OF 
    TEAMSTERS; SANDRA CHAPMAN, DIRECTOR OF TRANSPORTATION, 
  CORPORATE REGULATORY AFFAIRS, SHERWIN-WILLIAMS COMPANY, ON 
   BEHALF OF THE AMERICAN COATINGS ASSOCIATION; PAUL DERIG, 
ENVIRONMENTAL, HEALTH AND SAFETY MANAGER, J.R. SIMPLOT COMPANY, 
   ON BEHALF OF THE AGRICULTURAL RETAILERS ASSOCIATION; AND 
   BARBARA WINDSOR, CHAIRMAN, AMERICAN TRUCKING ASSOCIATIONS

    Mr. Shuster. Our first witness, the Honorable Cynthia 
Quarterman, the Administrator of PHMSA. I understand you have 
to leave here at 5:00. If we are still here at 5:00 ourselves, 
there is probably trouble, so I will make sure, one way or the 
other, that you are out and will be able to catch your plane.
    So, with that, Administrator, proceed.
    Ms. Quarterman. I appreciate that.
    Good afternoon, Chairman Shuster, Ranking Member Brown, and 
distinguished members of the subcommittee. On behalf of 
Secretary LaHood, I appreciate the opportunity to discuss the 
progress the Pipeline and Hazardous Materials Safety 
Administration is making in addressing current safety issues in 
the hazardous materials safety program.
    Each year, more than $1.4 trillion in hazardous materials 
shipments cross the United States by air, rail, highway, and 
water, totaling 2.2 billion tons and 320 billion ton-miles. 
These statistics show the enormity of not only PHMSA's mission 
but the mission of the other modal administrations within the 
Department of Transportation that share responsibility in 
overseeing and enforcing hazardous materials transportation 
safety.
    In the past year, PHMSA has made groundbreaking progress in 
enhancing its hazardous materials safety program, including a 
major reorganization. Our objectives, from the outset, have 
been to protect and improve safety outcomes, improve employee 
relations, and to broaden perspectives across the agency.
    In addition, PHMSA undertook an extensive requirement 
campaign, filling 90 percent of all hazardous materials 
vacancies. As a result, PHMSA had a banner year in 2010, 
including seeing the lowest number of hazardous material 
incidents with death or major incident in recorded history.
    PHMSA has addressed 12 of the 22 National Transportation 
and Safety Board's open safety recommendations, including those 
related to lithium batteries, cargo tank motor vehicle wetlines 
and loading and unloading of hazardous materials. Meanwhile, 
PHMSA has successfully closed all 10 outstanding Office of the 
Inspector General audit recommendations related to the agency's 
special permits and approvals program.
    In the past 12 months, PHMSA doubled its rulemaking output, 
issuing 33 separate Federal register notices to establish new 
hazardous material regulations, including rules incorporating 
into regulations 45 special permits that affected tens of 
thousands of applicants.
    In addition, PHMSA commissioned an independent audit of our 
hazardous materials emergency preparedness grants program. The 
preliminary findings have already resulted in an action plan 
and improvements to the program, and we have released a sample 
application that provides State and territorial grantees with 
best practices demonstrating effective planning and training 
activities.
    In summary, the Department and PHMSA are taking positive 
steps to address its regulatory priorities, decrease the 
incidents associated with hazardous materials operations, 
properly manage the special permits and approvals program, and 
closely examine the emergency preparedness grants program to 
ensure that all allocated funds are being accounted for.
    We welcome any and all recommendations for making our 
safety program more effective and further ensuring the public 
safety. I look forward to working with this subcommittee as we 
continue to implement measures to ensure our safety oversight.
    Thank you.
    Mr. Shuster. Thank you very much.
    Next, Ms. Barbara Windsor, who is the chairwoman of the 
American Trucking Association by day, but by night she is the 
president also of Hahn Trucking, President and CEO.
    So, with that, Ms. Windsor, please proceed.
    Ms. Windsor. Thank you, Mr. Chairman.
    Chairman Shuster, Ranking Member Brown, and members of the 
Subcommittee, thank you for this opportunity to testify. Once 
again, my name is Barbara Windsor, president and CEO of Hahn 
Transportation, a Maryland-based regional trucking firm that 
hauls petroleum and other bulk products. My family built and 
grew this business over 75 years, and today we operate more 
than 100 trucks and employ 150 individuals.
    This afternoon I appear before you representing not just my 
company but also as the Chairman of the American Trucking 
Association.
    The trucking industry delivers virtually all of the 
consumer goods in the U.S., including essential hazardous 
materials such as pharmaceuticals to treat the ill, chemicals 
to purify water, and fuel to power our cars. The safety and 
security record for HAZMAT transportation by truck is 
impressive. Serious incidents have decreased by 30 percent over 
the past decade.
    Further, the annual number of highway fatalities caused by 
hazardous materials has declined from 16 to 4. While the 
existing regulations governing HAZMAT transportation have a 
proven track record, my written statement addresses six 
specific recommendations to further improve the safe, secure, 
and efficient transportation of HAZMAT. I will highlight three 
of these recommendations this afternoon.
    Recommendation number one, ensuring equitable enforcement. 
Primary compliance with the HAZMAT regulations rests with the 
shipper, who must properly classify the material, select 
appropriate packaging, mark and label the package, and prepare 
a compliant HAZMAT shipping paper. Each of these pre-
transportation activities occurs before the carrier arrives to 
load HAZMAT packages on the truck.
    Since most HAZMAT enforcement occurs during roadside 
inspections, the responsible party may not be present. A 
carrier should not be cited for transporting HAZMAT where a 
shipper neither labels the package nor presents a HAZMAT 
shipping paper. Similarly, where a shipper omits a certain 
required information on a shipping paper, it is not realistic 
to expect the truck driver to research the chemical and catch 
the shipper's mistake.
    Carriers must remain responsible for the correct 
performance of HAZMAT functions under their control. However, 
Congress should ensure that the carriers are not responsible 
for violations of pre-transportation functions that are 
performed by the shipper unless the carrier has actual 
knowledge of the violation.
    Recommendation number two, reform incident reporting 
requirements. ATA supports the current Federal reporting 
requirements when there is a release or an incident involving 
HAZMAT. However, today, there are dozens of telephonic 
reporting requirements at the State and local level that vary 
from jurisdiction to jurisdiction. Drivers have no way of 
knowing whether a particular incident triggers a local 
reporting requirement, and motor carriers are being fined if 
the local requirements are not met.
    The universal 911 system, combined with the existing 
Federal incident reporting requirements, eliminates the need 
for separate State and local reporting requirements. It should 
be sufficient that the carrier calls the national response 
center, when required, or calls 911 to ensure the local 
emergency response teams are mobilized.
    And recommendation number three, wetlines. The wetlines 
issue is not new to the veteran members of this subcommittee. 
Wetlines refer to the product piping underneath cargo tank 
trucks that transport gasoline and other flammable liquids and 
are used for both loading and unloading of tank trucks.
    Incidents involving wetlines are extremely rare. In fact, 
an individual is more likely to be struck by lightning than to 
be injured by a wetline incident. Notwithstanding this 
incredibly low incident rate, PHMSA has proposed a new 
restriction restricting the transport of flammable liquids in 
wetlines.
    My written testimony goes into additional detail on the 
costs and benefits of PHMSA's proposed wetlines ban. We 
recognize that wetlines are the subject of an open NTSB 
recommendation, and we therefore urge Congress to have the 
National Academy of Sciences objectively study the issue and 
hold PHMSA rulemaking in abeyance until the analysis is 
complete.
    Thank you for allowing me to testify today, and I would be 
very pleased to answer any questions.
    Mr. Shuster. Thank you very much, Ms. Windsor.
    Next is Mr. David Boston, who is President of Owen 
Compliance Services, Incorporated.
    Mr. Boston, please proceed.
    Mr. Boston. Chairman Shuster, Ranking Member Brown, and 
members of the subcommittee, I am testifying on behalf of the 
Institute of Makers of Explosives, whose members have been 
adversely affected by changes to the procedures and 
requirements of PHMSA's approvals and permits program.
    Mr. Shuster. Could you speak into the mike a little more? 
Pull it towards you.
    Mr. Boston. My written statement provides background on the 
purpose of special permits and approvals, the exceptional 
years' long safety record achieved by industry while using 
these regulatory authorities, and the importance of these 
agency authorities to the economy. During my remaining time, I 
will highlight the serious problems that have resulted from 
PHMSA's management of the program over the last 18 months.
    The investigations of this program in the last Congress 
revealed procedural inadequacies, none that contributed to a 
death or serious injury. Instead of asking holders of special 
permits and approvals to resubmit missing documents, PHMSA 
implemented standard operating procedures governing the 
issuance, revocation, and termination of these authorizations 
without providing for public notice and comment as required by 
statute. These new procedures set up a complex system of 
application reviews, including costly site visits based on 
unpublished and unknown standards that have the potential to 
shut businesses down. These burdensome procedures render no 
commensurate safety benefit but affect every applicant for and 
holder of special permits and approvals.
    Adding to the complexity, PHMSA expedited new rules that 
radically increased the types of data applicants must submit. 
How this information would enhance safety was never explained 
by the agency. The new requirements imposed on industry and the 
agency significant additional burdens and costs.
    Without notice and comment, PHMSA has used the approvals 
process to establish unpublished requirements, undoing 
longstanding practices used to classify explosives without any 
record of incidents of fatality or serious injury, including 
issuing classification approvals with expiration dates, second-
guessing the results of classification tests performed by 
laboratories approved by PHMSA, and relooking at the merit of 
so-called family approvals, as well as asking some applicants 
to break up family groups.
    Without notice and opportunity for public comment, and in 
spite of the regulated community's longstanding safety records, 
PHMSA has redefined the historic use of the agency's fitness 
authority and established a three-tier fitness determination 
scheme.
    PHMSA asserts that it is not obligated to establish fitness 
criteria through rulemaking because this is something that 
relates to internal processes within PHMSA. We respectfully 
disagree. Every decision has an outside effect. Industry must 
understand the performance standard against which it will be 
measured.
    Despite promised improvement, an unprecedented backlog of 
special permit and approval applications has developed as a 
result of the agency's new paperwork and processing 
requirements. Industry has been told that the application 
processing procedures, like fitness criteria, are internal 
agency procedures with no external effect. However, any delay 
in processing applications due to the agency's new multi-
layered clearance procedure results in lost business 
opportunities. American industries are now disadvantaged in the 
global race to market by our own government.
    PHMSA's now using this backlog and its inflated application 
processing procedures to justify imposing a user fee on special 
permit and approval applicants. A portion of the fee would 
cover PHMSA's general operating budget, even though only a 
small percentage of the regulated community are holders of 
these authorities and the Federal Government is the program's 
largest user. PHMSA's user fee proposal is a hidden tax on 
companies whose innovation and goods are needed for economic 
recovery.
    While approvals, as other regulatory standards, may safely 
remain unchanged for years, Congress never intended that 
special permits be a long-term solution for the innovations 
they authorize. Rather, proven special permits were to be 
incorporated into regulation. Regrettably, PHMSA's failure to 
incorporate such permits into its regulations now exposes the 
affected industries to current whims of agency action.
    Last week, this subcommittee heard testimony from an 
explosives company about PHMSA's use of the special permit 
process to force the installation of untested technology on 
trucks used to haul bulk explosives and consequences that 
followed. Despite best efforts to comply, the retrofitted 
systems failed, causing total system shutdown while loaded 
vehicles were operating at speed. Instead of using scarce 
resources to incorporate these decades-old, proven special 
permits into regulation, as Congress intended, PHMSA has 
created a perverse, upside down regulatory environment, where 
it is more difficult to move a truckload of significantly less 
risky explosive precursors than to move a truckload of 
dynamite.
    In closing, special permits and approvals are necessary 
regulatory tools. The approvals and permits program which 
provides safety benefits to the public has been successfully 
run for decades without serious incident and without user fee.
    Industry wants the certainty of regulations and believes 
that changes to how PHMSA implements these regulatory 
authorities should be subject to notice and comment rulemaking. 
PHMSA's extensive bureaucratic changes would not have saved one 
life. They have created wasteful delays and expenditures of 
resources.
    This subcommittee should ensure that PHMSA promptly 
addresses these issues through rulemaking and without imposing 
user fees or demands for untested technology.
    Thank you.
    Mr. Shuster. Thank you, Mr. Boston.
    Next we will hear from Mr. Paul Derig--did I pronounce that 
right?
    Mr. Derig. That is correct.
    Mr. Shuster [continuing]. Who is the environmental, health 
and safety manager for J.R. Simplot Company.
    Mr. Derig, please proceed.
    Mr. Derig. Thank you, Chairman Shuster, Ranking Member 
Brown, esteemed members. I appreciate the opportunity to appear 
here before this subcommittee.
    I am here to testify on behalf of the Ag Retailers 
Association, a trade association which represents America's 
agriculture retailers and distributors of crop inputs, 
equipment, and services.
    As stated, I am the environmental, health and safety 
manager for the J.R. Simplot Company, directly responsible for 
support and oversight of regulatory programs, including 
transportation in Simplot's agribusiness retail operations.
    Simplot retailer operations are comprised of retail farm 
supply distribution systems, with over 100 facilities in 16 
western states that provide products, technical, and field 
services to local farmers, horticulturists, and landscapers.
    Over the past 30 years, I have been involved with many 
aspects of hazardous material handling and transportation, both 
through industry experience and as a public responder in the 
States of Idaho and Oregon. This hearing is important to ARA, 
as the ability to safely and effectively transport crop input 
products is vital to our industry and food production.
    ARA supports the Federal Government's principal role in 
HAZMAT transportation, regulation, and enforcement but is 
concerned about the administration of several portions of the 
Hazardous Material Transportation Act.
    First, the hazardous material safety permit program needs 
improvement. Every 2 years, carriers must renew their hazardous 
material safety permit; and the eligibility criteria for that 
renewal cycle is on a floating scale. So the bottom 30 percent 
in each category are disqualified for permit renewal. This 
results in greater than 50 percent of the applicants being 
deemed ineligible for the hazardous material safety permit.
    Furthermore, the system is biased against carriers that 
operate in rural areas. Carriers in rural areas receive far 
fewer inspections than carriers operating on Federal highways 
and busy areas.
    The safety level should not float from permitting cycle to 
permitting cycle. A level of safety should be defined and not 
fluctuate 2 years later. This disqualifying category data 
should be aggregated so that a company's entire record is taken 
into account. Additionally, Congress should conduct oversight 
of this program.
    To illustrate, I would like to share a personal experience. 
In January, 2010, Simplot's hazardous material safety permit 
renewal was denied based on eligibility. In other words, 
Simplot was in the top 30 percent of the national average for 
out-of-service violations in that permitting cycle. After 
lengthy review, I found that half of the out-of-service 
inspections were performed by the Minnesota Department of 
Transportation on ammonia nurse wagons that were not currently 
in use. The Minnesota Department of Transportation referred to 
a State Department of Agriculture rule stating that cargo tanks 
with more than 10 percent liquid level are deemed to be in 
service.
    After a long process of disputing the violations with State 
and Federal authorities, all of the Minnesota inspections were 
overturned and the out-of-service violations were removed from 
the system, leaving Simplot with 14 inspections for the year, 
with one hazardous material out-of-service violation.
    Simplot still did not qualify for the hazardous material 
safety permit. The denial of the permit resulted in losing the 
ability to deliver two products that amount to $12.5 million in 
annual revenues for our company.
    Secondly, I would like to further explain the importance of 
the DOT federally preempting State and local regulations that 
impose an unreasonable burden on commerce.
    The safe and secure transportation of hazardous material is 
best achieved through the uniform regulatory requirements. In 
the previous example, the State Department of Agriculture 
Regulation had Federal regulatory consequences that reached far 
beyond Minnesota. For a business to move forward, it is very 
important to have consistency in the rules. We suggest that 
Congress strengthen DOT's preemptive authority, authorize DOT 
to preempt State and local regulations that impose an 
unreasonable burden on commerce, also remove the 2005 hazardous 
material amendment which put a limitation on the preemptive 
effect of the law. These amendments create a loophole through 
which States can use enforcement authority to impose 
inconsistent requirements on the regulated community.
    Lastly, I would like to talk you about preempting State 
hazardous materials registration and permitting programs. 
States are free to institute their own hazardous material 
registration programs, resulting in varying registration 
requirements from State to State. To date, only six States 
participate in the Alliance of Uniform Hazardous Materials 
Procedures State HAZMAT registration and permitting programs. 
Since the inception of the test program, we have not seen any 
type of safety review in our operations, and this has increased 
paperwork and costs with no added value. Congress should 
preempt these hazardous materials State regulation programs 
that are ineffectual to safety and security concerns.
    We look forward to working with the committee and DOT in 
the future.
    Mr. Shuster. Thank you, Mr. Derig.
    Next, Sandra Chapman, who is the Director of 
Transportation, Corporate Regulatory Affairs, for the Sherwin-
Williams Company; and she is testifying on behalf of the 
American Coatings Association.
    Ms. Chapman, please proceed.
    Ms. Chapman. Thank you, Mr. Chairman and members of the 
subcommittee.
    I want to address two issues to the committee today, the 
enhanced enforcement authority of PHMSA and the authority of 
the agency in the international arena.
    Historically, PHMSA has been a leader in the U.N. 
Subcommittee of Experts, serving as chair and, more recently, 
as vice chair. This very important multi-modal organization 
makes decisions that have significant repercussions throughout 
the hazardous materials transportation industry.
    Likewise, PHMSA is a multi-modal agency that has broad 
authority to oversee and coordinate the requirements for all 
modes. This broad, multi-modal vision is essential to PHMSA; 
and the agency must be permitted to continue to serve in this 
capacity in the international arena.
    The coordinating of the domestic and international 
standards for limited quantities over all modes of transport is 
a great example of PHMSA's valuable work. For almost 2 years, 
PHMSA worked with industry stakeholders and through the U.N. 
subcommittee to develop standards that would provide as much 
multi-modal uniformity as possible. PHMSA worked closely with 
the Coast Guard to address standards for vessel mode and with 
the FAA to address standards for the air mode. The results of 
PHMSA's efforts are limited quantity requirements that are 
clear, reasonable, and appropriate, given the limited risk 
presented by these materials in transport.
    Since 1967, the Secretary of Transportation has delegated 
responsibility to lead and coordinate DOT's activities in these 
international forums to PHMSA. More recently, however, it is no 
longer clear that PHMSA is the lead agency for this work. In 
the most recent reorganization of the Office of Hazardous 
Materials, the International Standards Division appears to have 
been minimized in staff resources, and the current 
international standards coordinator is also serving as an 
acting director for another office within PHMSA. This situation 
is unacceptable, and Congress should send a strong message to 
PHMSA that this international work is paramount to the safety 
of transporting dangerous goods and by specifying that PHMSA 
should be the lead agency for this important work.
    Turning to the enforcement issue, as a shipper, my industry 
understands that PHMSA is an enforcement agency; and there is 
no doubt that PHMSA needs the tools to enforce the HMR 
aggressively. But these enforcement tools must be based on 
safety and accountability.
    PHMSA's partners in HAZMAT safety and enforcement are the 
State agencies. Safety demands uniformity in the regulatory 
requirements applied to industry and in their enforcement. We 
highly recommend that DOT work closely with State enforcement 
personnel to provide consistent training in HAZMAT enforcement, 
because businesses must have uniformity in enforcement 
standards and procedures in order to operate efficiently.
    PHMSA's enforcement teams have always had the authority to 
open and inspect a package under very limited circumstances. 
Following the Value Jet tragedy in 1996, this authority was 
broadened to address the serious concern of undeclared 
hazardous materials. Those would be materials that are 
hazardous but are not packaged, marked, and labeled accordingly 
and were not presented to the carrier as hazardous.
    However, in a very recent final rulemaking PHMSA has 
interpreted this amendment language very broadly and is 
applying the enhanced authority to open and inspect packages to 
more than just those packages that are undeclared. PHMSA 
intends to apply this authority to packages that are declared 
but may be out of compliance with some other aspect of the 
regulations.
    For the paint industry, this has the potential to be very 
disruptive, as a regulated can of paint looks exactly like a 
nonregulated can of paint, except for the labels and markings. 
Open-and-inspect authority should be applied as Congress 
intended to undeclared packages. PHMSA already has an 
enforcement process to address noncompliant packages, and this 
process should be employed.
    Congress also must consider the broader safety and 
accountability concerns in this situation. Package-opening 
activities should only take place at properly equipped 
facilities in order to protect public health and safety.
    In addition, there should be notification to the offerer 
that a package is being removed from transport for inspection 
and testing. We urge Congress to consider the impact to the 
shipper, carrier, and consignee when a package is removed from 
transport for inspection. If a worst-case scenario occurs and 
there is a release, who is liable?
    This is an extremely difficult situation, and we ask 
Congress to include indemnification language intended to hold 
harmless persons who are injured, including economic injury, by 
a release from a package that is opened or otherwise handled 
under this section.
    With these additional safety and accountability norms, we 
believe that PHMSA will have the appropriate tools to 
aggressively enforce the HMR.
    Mr. Chairman, we are happy to answer any questions at an 
appropriate time. Thank you very much for this opportunity to 
address the committee.
    Mr. Shuster. Thank you very much, Ms. Chapman.
    Next, we will hear from Mr. LaMont Byrd, who is the 
Director of Safety and Health for the International Brotherhood 
of Teamsters.
    Mr. Byrd, please proceed.
    Mr. Byrd. Good afternoon. My name is LaMont Byrd; and, 
again, I am the Director of Safety and Health at the 
International Brotherhood of Teamsters. I would like to thank 
Chairman Shuster, Ranking Member Brown, and members of the 
subcommittee for the opportunity to testify here today.
    The Teamster's Union represents approximately 300,000 
workers in the U.S. who handle and transport hazardous 
materials. These workers include truck drivers, dock workers, 
warehouse workers, airline pilots, and law enforcement officers 
and emergency response--or medical personnel who respond to 
traffic accidents that may involve the release of hazardous 
materials.
    We recognize the need for comprehensive hazardous materials 
legislation that ensure the strong enforcement of the rules, 
clearly defines regulatory jurisdiction, and provides for 
safety and security training of workers who are involved in 
HAZMAT transportation activities.
    We are particularly concerned with strengthening hazardous 
materials transportation safety in the tank haul industry and 
support the notice of proposed rulemaking to protect workers 
who load and unload cargo tanks.
    We also support the proposed rule concerning safety 
requirements for external product piping on cargo tanks 
transporting flammable liquids.
    Today, I will briefly comment on training for hazardous 
materials workers and emergency responders, OSHA jurisdiction, 
and transporting lithium batteries on aircraft.
    It is critical that HAZMAT workers be provided with 
comprehensive worker safety and security training to enable 
these workers to protect themselves from the hazards associated 
with transporting HAZMAT. Likewise, it is essential that 
emergency responders receive a level of training that allows 
them to protect themselves, nearby persons, property, and the 
environment. Therefore, the Teamsters Union supports operations 
level training for emergency responders.
    The Union developed a comprehensive HAZMAT/HAZWASTE 
training program for our members and other transportation 
workers, and the Union receives a training grant from DOT PHMSA 
to conduct instructor training for HAZMAT workers. To 
successfully complete our train the trainer course, aspiring 
trainers must complete 56 hours of classroom, lecture, and 
small group activities and teach at least one HAZMAT awareness 
level course while being evaluated by a Teamster master 
trainer.
    Our students who completed our program reported that they 
had their HAZMAT-related job responsibilities increase as a 
result of receiving the training. They joined the Safety and 
Health Committee, answered HAZMAT-related questions asked by 
their coworkers, responded to HAZMAT releases, helped to 
prevent workplace accidents, and conducted HAZMAT-awareness-
level training.
    We believe that the HAZMAT training program adds value in 
the workplace, as trained workers have greater safety and 
health awareness and can therefore work more safely.
    The Union is aware of efforts to eliminate OSHA authority 
to protect HAZMAT transportation workers. This is an extremely 
important issue to the Union, and we recommend that any 
attempts to eliminate or weaken OSHA's authority be rejected.
    The Union has had many experiences working with OSHA on 
HAZMAT transportation issues. We feel that the agency has 
appropriately addressed the issues. Hazards were abated. 
Employees have been protected. We think that OSHA is doing a 
good job, and we would like to see the agency retain its 
jurisdiction.
    There is much concern about hazards associated with 
transporting lithium batteries on aircraft. The IBT is on 
record regarding our position, and I would like to reemphasize 
that we agree with the NTSB recommendations regarding 
transporting lithium batteries and would like to advise the 
subcommittee that we do not support the amendment to the 
Federal aviation authorization bill that essentially prohibits 
the FAA from promulgating or enforcing regulations regarding 
the transportation of lithium batteries by aircraft if the regs 
are more stringent than ICAO standards.
    The Teamsters Union believes that the current regulations 
that are more stringent than ICAO standards should be retained 
and enforced. In addition, there should be no obstructions to 
promulgating and enforcing any future rules that are more 
stringent than ICAO standards.
    The Teamsters Union commends the committee's concern about 
the safety and security of the traveling public and hazardous 
materials workers. We urge the committee to use great care as 
you consider streamlining regulations as the lives, health, and 
safety of workers is dependent on strong, well-enforced 
regulations.
    Again, thank you for the opportunity to appear here today. 
I am pleased to answer any questions you may have.
    Mr. Shuster. Thank you very much, Mr. Byrd. Appreciate your 
testimony.
    I am going to start questioning, and I am going to focus on 
Ms. Quarterman so we can try to get her out of here on time.
    We heard from the industry. There is great concern being 
expressed over the backlog and some of the criteria that PHMSA 
has. Moving forward, I understand that there is 1,000 special 
permits and maybe as many as over 4,000 approvals that are 
backlogged. So how are you proceeding to correct the backlog 
and address the backlog that you have out there?
    Ms. Quarterman. With respect to approvals, there is no 
backlog.
    Let me say, to give you a matter of perspective, if you 
look in my testimony, there are several charts that show the 
number of applications for approvals with respect to fireworks 
and explosives that were received in the past 3 years and the 
number that have been processed through the first quarter of 
2011. In summary, in fiscal year 2009, we processed 2,100 
special permits, as compared to 3,800 in 2010. At this point, 
there is no backlog above 180 days with respect to explosive 
approvals. There are three that are over 90 days.
    With respect to firework approvals, we have seen an 
exponential growth in the number of applications and in our 
processing of those. In fiscal year 2009, we processed only 
1,460 firework applications. In 2010, we received 12,000. That 
was almost three times as many as we had received the prior 
year, and yet we managed to process a full 13,562 of those.
    In the first quarter of this fiscal year, we have already 
received 7,500 applications, which suggests that we are seeing 
another doubling in the number of applications for fireworks; 
and we have processed 6,900 of those. We have 24 of those that 
are more than 180 days old, and those are all subject to 
fitness holds because of issues that we are looking into with 
those particular applicants. So there is no backlog with 
respect to approvals.
    With respect to special permits, as you will recall, we had 
a very laborious effort with responding to concerns with that 
program. We put in place special operating procedures, and last 
year we managed to reduce the backlog in special permits in 
August of 2010. So it disappeared altogether.
    When we looked closer at the backlog, we discovered that 
the files for those special permits were missing a key 
ingredient, and that is the safety equivalency determination 
that is required. We found that more than half of those were 
not in place. So we had to go back and essentially recreate 
safety equivalencies in the files that appeared to be missing 
that document. We have hired outside contractors, including 
Volpe, who have been working with us to put those safety 
equivalencies in place.
    We fully expect that the backlog will be over with by 
August of this year. So there is a backlog in special permits, 
but there is a good reason for it, and we have a plan to get on 
course with that.
    Mr. Shuster. OK. Mr. Boston, I have got information--I 
guess submitted by your folks--that say there is a backlog of 
4,000. Is that accurate? I mean, the numbers aren't jibing 
here.
    Mr. Boston. The numbers that you have are taken from 
PHMSA's approvals database that they provide on-line. If that 
information is not up to date, then that data would be 
inaccurate, but we have no way of knowing that. And it is the 
only source of information we have regarding the number of 
approvals that are outstanding.
    Mr. Shuster. I have here on this document that it is from 
April 5 of 2011. Is the database incorrect?
    Ms. Quarterman. Unfortunately, our Web site is not updated 
as often as it should be. We will update that with more current 
information. It doesn't get updated on a daily basis. The 
information that I have is as of April 11, and I am not sure 
where the 4,000 number is coming from, unless he is considering 
every application that we have as being in backlog status. We 
calculate backlog based on whether it has been in our coffers 
for more than 180 days, and there are none in the approvals 
program, or very few that fit into that category.
    Mr. Shuster. It is based on your Web site so--it says 
submitted and pending, and it totals 4,000. So that is 
something we need to get--Mr. Boston, are there people from 
your industry you are hearing from crying out that there are 
pending? I mean, again, we need to--we would like to get to the 
bottom and see what is the right number--0 or 4,000 or 40 or 
whatever the number is. Mr. Boston.
    Mr. Boston. I don't have any immediate information from 
other members, but I would be happy to research that and 
provide that information to the subcommittee for the record at 
a later date.
    Mr. Shuster. That would be important that we get that.
    [The information follows:]



    
    Mr. Shuster. My time has expired.
    We are going to do a second round. But I will go to the 
ranking member, Ms. Brown, for 5 minutes; and, again, we can go 
another round.
    Ms. Brown. Thank you.
    Ms. Quarterman, recently, PHMSA was replaced as the lead 
U.S. representative at the United Nations Committee of Experts 
on the Transportation of Dangerous Goods, an International 
Civil Aviation Organization, by FAA. Do you support this change 
and why did it occur?
    Ms. Quarterman. PHMSA has not changed its status with 
respect to the U.N. Committee that you cited.
    With respect to the ICAO Committee, PHMSA is the person who 
determines who the representative is; and we, as a department, 
made a determination that the person who--that FAA should be 
the representative during this round because there are several 
operational issues related to aviation that are on the table.
    The authorities still rest with PHMSA in terms of who will 
be appointed to that committee, and we have the alternate 
position. So we work hand in hand with the FAA person, and we 
have created internal operating procedures about how things 
proceed forward.
    Ms. Brown. So you have not been replaced?
    Ms. Quarterman. No.
    Ms. Brown. The Institute of Makers of Explosives claim that 
the change of the special permits and approvals over the past 
18 months have not enhanced safety. What is your response to 
that?
    Ms. Quarterman. Well, as I mentioned in my testimony, this 
has been a record year in terms of safety with respect to the 
hazardous materials safety program.
    In addition to that, as the committee is well aware, in 
past years the special permit and approvals program had not 
been enforcing or following a number of items within its 
regulatory requirements, including doing a fitness 
determination, finding a safety equivalency. Or, if it had, it 
was old, and we didn't know where it was. The agency didn't 
know where it was.
    We now have that information and have verified the fitness 
of all the operators who have those special permits as they 
come forward and approvals. I think that enhances safety 
markedly.
    Ms. Brown. We had testimony last week in this area, and it 
was indicated by DuPont that it has been slowing down and it is 
taking a longer time. And we tried to find out that 
information, and we could not.
    Ms. Quarterman. Well, as the statistics show in my 
testimony, we are working at a record pace. You can see that we 
have been issuing approvals, you know, multiples of prior 
years.
    Ms. Brown. And I guess my last question for you, what do 
you think Congress should do to help prevent cargo truck 
rollovers?
    Ms. Quarterman. Well, cargo truck rollovers are a large 
cause of incidents for hazardous material safety. This past 
year, the NTSB held a hearing where PHMSA, the FMCSA, and NHTSA 
were all represented, and we began to have a conversation about 
some things that needed to be done. I think we are at the 
beginning stages of that.
    We did put out a video with FMCSA that essentially tells a 
driver what to do to prevent a rollover. A large cause of these 
incidents appears to be human error, not knowing what to do 
when something happens in the truck.
    I think NHTSA is also looking at the possibility of 
electronic stability controls for some of these trucks. So we 
have a number of initiatives under way.
    Ms. Brown. It seems to me that that was more of a problem 
when we had the hearing as opposed to the wetlines.
    Ms. Quarterman. Are you asking if that is a higher risk?
    Ms. Brown. It seemed to be in the testimony that we had. I 
want your response to that.
    Ms. Quarterman. I agree it is a higher risk.
    One of the things that we did very recently that has never 
been done before historically is to look at what are the top 
10, for example, commodities that cause incidents, what are the 
top 10 causes of the incidents and that kind of data. We are 
just at the beginning stages. In fact, it is hot off the 
presses in terms of being able to work that into our regulatory 
process and determine what rulemaking should follow on.
    But, importantly, flammable liquids are the number one 
cause of incident, and the wetlines rule does address potential 
issues with flammable liquid transportation.
    Ms. Brown. Can Ms. Windsor respond to that?
    Mr. Shuster. Yes.
    Ms. Windsor. I would have to agree that a rollover is a 
much more potential issue than wetlines. There are very few 
cases of accidents involving wetlines as was stated before, 
when you consider that we have over 50,000 cargo shipments on a 
daily basis. And we as an industry would rather see roll 
stability worked on versus the wetlines.
    Ms. Brown. Thank you. I will save my additional questions.
    Mr. Shuster. Thank you.
    Mr. Fincher.
    Mr. Fincher. Thank you so much; and thank you, panel, for 
coming today to give us your comments.
    It is very frustrating to me. It seems like the right hand 
doesn't know what the left hand is doing. And we just--keep on 
regulating and have more oversight, and we are not getting to 
the root of the problem.
    Industry, you know, it is just not from one company or one 
individual, but it is from multiple, about how overregulation 
and too much oversight is not the answer. We all want to make 
sure that we are doing things by the book and the safest way 
possible. But, at the same time, if we don't stop breaking the 
back of our businesses by overregulation, then we are not going 
to be able to sustain this path.
    Just a couple of questions, just I guess one.
    Of the most recent rules and regulations that have been 
made related to transporting hazardous materials, in your 
opinion, what is the one rule or regulation that has the most 
negative effect on your industry? And this is to Ms. Windsor. 
Where should we focus first to help relieve the regulatory 
burdens?
    Ms. Windsor. That is difficult. As I said, we have six 
recommendations. Among the issues I didn't discuss are 
background checks, which are very onerous for our drivers, and 
they spend a lot of money on them. The Safe Trucker Act, which 
has been proposed on a number of years, would allow one 
fingerprinting. That would help alleviate a lot of regulatory 
issues on our drivers. In fact, we have a number of drivers 
that just won't get a HAZMAT endorsement because of the current 
process, so we are losing out.
    Uniform permitting is another thing. If we just needed to 
go to one State, versus having to hire someone to contact each 
State individually every time we want to do a special permit it 
would help a lot. It wouldn't change the dollar amount. It is 
just the way the processes take place. Obviously, this issue is 
near and dear to my heart, because I am a cargo tank carrier 
hauling petroleum products.
    There is also the wetlines issue. Instead of spending money 
on retrofitting our trailers, we there are other issues that we 
could deal with before that.
    And reforming the way we do our incident reporting. These 
are all things--the six things I brought out are a way that we 
could stay safe in transporting hazardous materials and yet be 
a safer industry without as much--not changing regulations, 
making it a little more efficient.
    Mr. Fincher. It seems to me that if we could just talk to 
the experts in their fields before we start making rules and 
regulations that we know nothing about, it would make a lot 
more sense.
    Ms. Windsor. We would like to be partners and work 
together. We only want safe shipments out there on the highway. 
We want our drivers to come home safely to their families every 
night. We want the public that we are traveling with to be 
safe, also.
    Mr. Fincher. Absolutely. And I think we always want to make 
sure that we get to the bottom line, and the bottom line here 
is the consumer ends up paying.
    Ms. Windsor. Yes.
    Mr. Fincher. The trickle-down effect is the consumer pays. 
Again, nobody wants to be any more safe than I do, but you can 
carry it too far, and we are carrying it too far. There are too 
many people saying the same thing over and over, whether it is 
in the trucking industry, the ag industry, the fertilizer 
industry.
    And, Mr. Boston, any comments from you? I have got just a 
little more time left.
    Mr. Boston. Well, I guess, first of all, I would support 
that we want whatever regulations that we have to comply with 
to be clear and concise. We want to be measured against known 
standards and not vague, uncommunicated, unpublished standards. 
I think that the primary issue for us is that. So thank you.
    Mr. Fincher. Thank you. I yield back.
    Mr. Shuster. I thank the gentleman.
    And I don't know if he heard the statistic that was cited 
here with this wetlines issue. You have a greater likelihood of 
getting struck by lightning than you do--so maybe you ought to 
drop a bill to outlaw lightening to strike people.
    And everybody kind of chuckles, but that is the point. I 
mean, we should be focusing on the issues that really have a 
significant impact. I certainly don't want anybody to die out 
there. But, at the end of the day, the only way I can make sure 
of that is if we just stop the 50,000 shipments of hazardous--
the wetline shipments that are out there. That is the only way 
to make sure it is 100 percent. There is risk involved. We got 
to make sure we focus on what the risk is.
    And, with that, Mr. Filner.
    Mr. Filner. Thank you, Mr. Chairman.
    I was just wondering where in the 20th century or 19th 
century you would like to take us back to, my friend? I mean, 
what do you want, child labor laws taken away? I mean, what do 
you want to--this onerousness on your small businesses. Come 
on, we are talking about the health and safety of our people.
    And I will be happy to talk to the experts anytime you 
want. Truck drivers represented by the Teamsters here today, I 
will talk to them. I will talk to the pilots. I mean, you are 
talking to the guys who own the places, but I want to talk to 
the drivers, I want to talk to the pilots, I want to talk to 
the bus drivers, I want to talk to the people who make it safe, 
and I want to talk to the parents of those people who would 
like their--So, you know, tell me how far you want to go back, 
whether it is 1910, 1880, I don't know where you are taking us 
back to, but--and I was shocked, Mr. Chairman, by the cavalier 
and flippant dismissal of so-called anecdotal evidence that the 
gentleman from Indiana talked about, Dr. Bucshon. I mean, he 
was a doctor. Would he dismiss 52 anecdotes from his colleagues 
that a certain medicine produced a heart attack and, therefore, 
he says he dismissed it? It is just anecdotal. So I am going to 
give that pill to my patients.
    I mean, come on. In the incidents that both of us were 
talking about, which is lithium batteries, the FAA reported 52 
incidents in the last 16 years or so involving lithium and/or 
lithium ion batteries, many in the cargo departments of 
airlines. And, in fact, FAA's tech center found that the only 
FAA-certified fire extinguisher could not extinguish fires from 
those batteries. So I take those anecdotes pretty seriously. I 
take the experts, the pilots, very seriously who want some 
regulation of these batteries.
    Yes, we have got to balance that with what we think are the 
so-called lifesaving devices that we all want for ourselves and 
our family, but we just can't dismiss these anecdotes as just 
unworthy of us and somehow too onerous for the consumer. I am a 
consumer, too, and I want the pilots, I want the truck drivers, 
I want everybody to be safe. And I have to pay more for it? 
Hey, I am willing to do that. And let's get that stupid thing 
about the consumers paying off the table.
    Ms. Quarterman, thank you for your testimony. I mean, do 
you take this stuff on the lithium battery seriously? Do you 
believe that the ICAO should restrict our ability to have 
regulations? And where is your agency in regard to any 
regulations that you would be suggesting?
    Ms. Quarterman. My agency put out an NPRM earlier last year 
to regulate lithium batteries in conjunction with FAA. We are 
sister agencies, and we worked together to come up with a 
notice of proposed rulemaking. We received I think a record 
number of comments on that. We have worked together to put 
together a final rule which is now at the Office of Management 
and Budget, which means we are waiting for the next steps; and 
there is not too much more I can say about it as a result.
    Mr. Filner. You would not support the amendment that 
restricted us from having a more stringent regulation than ICAO 
would?
    Ms. Quarterman. I believe the Department is in the process 
of putting together a statement in response to that, so I don't 
want to jump in front of them.
    Mr. Filner. Oh, come on, just say you are against it.
    Thank you, Mr. Chairman.
    Again, I think this Congress and this Nation deserves a 
little bit more than these--I don't know--these flippant 
comments about too much regulation. I mean, yeah, we want to do 
this intelligently, we want to do it cost effectively, and we 
want to, you know, take science into account. But to say that, 
by definition, it is bad--although I doubt if those same people 
would want to eat a steak that didn't go through USDA 
regulatory procedures or fly on a plane where there is no 
Federal traffic controllers or even be on a street without red 
lights. It sounds like that is the kind of society they want 
and only--you know, only the bottom line of small business is 
going to count.
    Well, it costs more money to stop at a red light, I am 
sure, but we accept them because they are an interest of all of 
us, as we accept meat inspections and air traffic controllers. 
And a lot of middle-class inspections somehow are OK, but when 
they hit businesses they are not OK.
    So I think we have to get away from these simplistic kinds 
of discussions and move on to a more science-based kind of 
application of this stuff.
    Thank you, Mr. Chairman.
    Mr. Shuster. That is what we are all for, moving towards a 
science-based and risk-based. Well, where is the greatest risk 
involved and let's focus on that and let's spend our efforts 
there to save as many lives and avoid as much damage to 
property. So that is what we want to do.
    Ms. Beutler.
    Ms. Herrera Beutler. Thank you, Mr. Chairman.
    And I guess I would want to reiterate--I didn't hear Ms. 
Windsor's--in fact, I think she came to us with some solutions 
for regulations. And though it seems like, quote, let's stop--I 
think what the gentleman said was let's take this stupid thing 
about consumers paying more off the table. I think that 
encapsulates the problem over the last couple of years and why 
we are going after some of these regulations that cost 
consumers more money when they don't have it and, more 
importantly, cost them jobs. I have 13, 14, 15 percent 
unemployment in my neck of the woods, and I want people to 
work.
    And what I heard from Ms. Windsor--and please correct me if 
I am wrong--was, with regard to regulations, wasn't to erase or 
wipe them out. No one is saying that. In fact, she had some 
really good solutions on the table. Eliminating duplicate and 
redundant security background checks seems like a good idea to 
me. Ensuring equitable enforcement of hazardous materials 
regulations, OK, that seems fair. Reforming hazardous materials 
incident reporting requirements, and so on.
    So I guess I missed the part where we said let's get rid of 
all regulations required to transporting hazardous materials. I 
want safety on our roads. I want our trucks safe. I want our 
families safe, and I want them to have jobs. I want them to be 
able to work.
    So it is not about protecting businesses. It is about 
protecting those people in Clark County and southwest 
Washington who are trying to transport materials and get paid 
so that they can pay for their kid's education, their food, 
their clothing.
    So I guess, unless I am wrong--and this is kind of where 
the question is--you all aren't up here advocating that we get 
rid of regulations, especially as it relates to your industry, 
right? You are advocating that we do this in a science-based, 
risk-assessed, solution-oriented manner, which to me seems like 
the adult conversation we need to have, especially after the 
last couple of years where there hasn't been a big check on 
these regulations.
    And if you would care to comment, please feel free.
    Ms. Windsor. No, I totally agree. We are not talking about 
reducing regulations. We are streamlining or consolidating 
instead of so many variables out here.
    I want the workforce--I have a workforce that 50 percent of 
my drivers now don't want to get a HAZMAT endorsement because 
of the cost of the HAZMAT endorsement from their State and then 
the TWIC card, also. It is identical fingerprinting, so it is a 
duplication.
    Ms. Herrera Beutler. So with that then people are not 
earning as much as they could be, right?
    Ms. Windsor. Correct.
    Ms. Herrera Beutler. Which means those are dollars for our 
economy left on the table----
    Ms. Windsor. Correct.
    Ms. Herrera Beutler [continuing]. At a time when we have 
the worst economy that we have seen in decades?
    Ms. Windsor. Correct. Because it becomes very onerous on 
them to have all this duplicated credentialing.
    Mr. Shuster. I thank the gentlelady from Washington.
    With that, Ms. Richardson for questions, 5 minutes.
    Ms. Richardson. Thank you, Mr. Chairman.
    Ms. Quarterman, I believe it was Mr. Derig said that there 
is a bias in the system against rural agricultural folks. Are 
you aware of that or are you committed to looking into that for 
us?
    Ms. Quarterman. It was specifically on page 3 of his 
testimony: Further, the system is biased against carriers like 
agricultural retailers that operate in rural areas. Carriers in 
rural areas receive far fewer inspections than carriers 
operating on Federal highways and busy areas. Therefore, you 
know, they don't have enough to be able to statistically 
overcome the violation.
    Ms. Richardson. So are you aware of his concern?
    Ms. Quarterman. I am not aware of his concern. I have to 
say that some of the things that have been raised here today 
are beyond PHMSA's jurisdiction with respect to, for example, 
licensing. That is the Federal Motor Carrier Safety 
Administration. I would be happy to take back those comments on 
those issues to them.
    Ms. Richardson. But I think there is a direct correlation 
of what he is saying, that if ultimately you are determining 
his permit and if he is saying that--and it would seem to make 
sense to me in a rural community--I come from California. 
Occasionally, I drive to Sacramento. I can see that they 
wouldn't have as many inspections because it is, you know, 
wide-open highways.
    And so I am saying, would you commit to at least looking at 
the statistics to see if that is the case and if it is 
inhibiting their ability to statistically overcome their 
violations, which is what their concern is, which would 
ultimately impact their permit?
    Ms. Quarterman. Absolutely.
    Ms. Richardson. The second question I wanted to ask Mr. 
Derig. You said that in 2005 HMTA amendments removed all 
preemptive limitations to State enforcement authorities, and 
you talked a little bit about this. You also said this creates 
a loophole through which States can use enforcement authority 
to impose inconsistent requirements. Could you give us a 
specific example of what you mean?
    Mr. Derig. I think one of the examples is in my testimony 
where, actually, the Minnesota transportation folks came in and 
did a terminal inspection, which--that is OK. You know, we 
invite them in. But what they were looking at was ammonia nurse 
trailers, which after the season come back and sit in the yard 
and are not introduced back into the transportation system 
until the next application season, and if there is not demand 
they won't even go out then.
    So the Minnesota Department of Transportation justified 
their terminal inspection based on a Minnesota Department of 
Agriculture rule that was a State rule that said, for 
agricultural inspections, all nurse tanks that are used out on 
the farm are deemed to be in service if they have 10 percent on 
the liquid level gauge.
    So that is what the transportation folks did. They came in 
and said, oh, all these trailers are in service, should be 
ready to be transported, even though they weren't intended to 
be transported, and the Federal Motor Carrier is very specific 
in the rules about what is in transportation or is planned to 
be in transportation.
    Ms. Richardson. OK. I have got to cut you off there, 
because I have only got a minute and 30 seconds.
    Would you mind asking your association to give to the 
committee specific examples of where you feel the States are 
using a loophole and where a more national perspective would be 
more helpful?
    Mr. Derig. Yes, certainly.
    [The information follows:]



    
    Ms. Richardson. Mr. Byrd, in your testimony you talked 
about the fact of eliminating the shared jurisdiction between 
DOT and OSHA. And, Ms. Windsor, it is my understanding in your 
testimony you said that the American Trucking Association 
supports eliminating this jurisdiction, shared jurisdiction. 
Could you share with us why?
    Ms. Windsor. With the overlapping jurisdiction, we feel it 
erodes uniformity. So we support having DOT as the agency in 
charge versus the overlapping of the DOT and OSHA.
    Ms. Richardson. OK. Mr. Byrd, could you share why you think 
that that is not correct? Because I think this is a really 
important issue.
    Mr. Byrd. Well, thank you for the question.
    We believe that both regulatory agencies bring important 
things to the table when it comes to protecting worker health 
and safety. The Department of Transportation has expertise in 
terms of testing containers to ensure that they are durable 
enough to transport HAZMAT or placarding or labeling. But the 
Department of Transportation is not the agency that has the 
staffing or the expertise to deal with worker health and safety 
issues that may relate to personal protective equipment, worker 
training, worker exposure levels to certain chemicals. So we 
think they bring very distinct expertise to the table, but they 
are not easily interchangeable. So we don't think that DOT 
could take on the OSHA responsibilities.
    Ms. Richardson. Mr. Chairman, could I just ask one quick 
follow-up question?
    Mr. Shuster. Sure.
    Ms. Richardson. So, Ms. Windsor, if in fact what Mr. Byrd 
is saying, if there were consistent national standards, would 
you be opposed to the involvement of OSHA beyond training?
    Ms. Windsor. OSHA has always been involved to a certain 
point. It is when we are getting overlap instead of uniformity. 
It is the overlapping of the two different agencies. Because 
OSHA has always been involved on certain, obviously, protective 
equipment.
    Ms. Richardson. But what Mr. Byrd is saying is that there 
is two totally different skill sets that they bring.
    Ms. Windsor. I don't see that at all.
    Ms. Richardson. You don't see a difference?
    Ms. Windsor. No.
    Ms. Richardson. OK. If you could supply to the committee 
what you see those differences are in writing.
    [The information follows:]



    
    Ms. Richardson. Thank you, sir. I yield back.
    Mr. Shuster. I thank the gentlelady.
    A question to Ms. Quarterman again on the current status of 
the 2010 petition for rulemaking which was made by a number of 
industry groups regarding procedures and fitness criteria that 
should be used for processing special permits and approvals. 
Could you let us know what the status of that is?
    Ms. Quarterman. I believe it may still be under 
consideration. I don't have the specifics on where that stands.
    Mr. Shuster. Is that something you could get back to us and 
let us know where it stands, where we are in the process?
    Ms. Quarterman. Absolutely.
    [The information follows:]



    
    Mr. Shuster. And the second, what has changed at the 
agency? In 2004, the analysis was that, based on the cost-
benefit analysis, they withdrew a rulemaking on the wetlines 
and--given the low risk of it. I understand there is a 
rulemaking about to be made, a proposed rulemaking. What has 
changed at PHMSA for you to take, again, what I perceive and 
what I think the statistics bear out and the cost-benefit 
analysis bears out, that it is below risk and the cost-benefit 
analysis isn't there, and it is going to be very expensive when 
we could be focusing on rollovers.
    Ms. Quarterman. The agency is not just focused on the 
highest-risk incidents. We have to also be aware of those 
incidents that are low risk but could result in high 
consequence. We have to be thinking about emerging issues, for 
example, the explosion of the number of lithium batteries being 
transported by aircraft. And in this instance, whereas the 
statistics are not great in terms of the number of incidents, 
there have been incidents.
    And if a school bus full of children were to hit a wetline 
and burn, the analysis would be compelling, I think; and we 
don't want to have that happen if we can avoid it at the 
beginning.
    Now, the Department has, as you said, in the past done an 
analysis, has put this rule out for comment. We have obviously 
updated the rule and tried to consider everything that has 
happened in the intervening years, tried to revise the rules 
and tried to take the current costs into effect.
    We are in the middle of a comment period. The comments are 
open. So everything that is being said here will be obviously 
fed into that process and put into consideration as we go 
forward with the next step in the rulemaking. We are at the 
beginning of this process.
    Mr. Shuster. And it certainly would be a terrible, terrible 
tragedy if that were to happen to a school bus. But from my 
understanding of what happens with a wetline accident is that a 
school bus couldn't get underneath a truck, and that would be 
highly unlikely to happen.
    But you know those are the kinds of things that my concern 
is that we think of these scenarios that could happen. You 
know, one in 300 million, I think, was the number I read 
before, but, you know, very unlikely happening. And we are 
basing a rulemaking that is going to cost an industry millions 
of dollars.
    And the other side of that coin is we have seen her 
testimony and studies that when you go to retrofit some of 
these things you could have a spark and kill people in the shop 
that is retrofitting them. So I think you really need to be 
focused on--And you yourself said that rollovers are a big 
problem and human error, and that is why I look at your numbers 
here. You have rollovers, and you have human error. How do you 
separate those out? Maybe I don't understand how exactly you 
weighted them and things like that, but it seems to me we have 
got a much bigger problem and something we can focus on to 
spend our time, our effort, and our money correcting those 
problems and trying to address those problems.
    So, again, I would urge you to focus on those issues that 
are of the greatest danger out there on the highways and around 
this country.
    I continue to hear from different members of the panel--I 
turn to Ms. Chapman. Training, you mentioned inconsistency of 
training between States and PHMSA.
    Let me back up. I continue to hear there is a problem with 
the States and with PHMSA, the Federal DOT, and State DOTs and 
other agencies, and there is no consistency on training between 
the States and PHMSA. What are some of the problems that your 
membership has had with inconsistency of training? Because that 
goes a long way in solving the human error problems that we see 
out there.
    Ms. Chapman. Right. Obviously, the regulations are the same 
for everyone, and we want them to be enforced uniformly. But 
what we see is a pretty large variance from State to State on 
how they prioritize the enforcement; and what might seem to be 
a minor problem with, say, load securement in one State is 
going to be seen as a huge problem with a large fine and points 
against the company in another State. We want to be uniform in 
our compliance with the regulations, but when it is sort of a 
moving target as far as what is going to be considered an issue 
or how an inspector is going to interpret the regulations where 
they are not real clear, it makes it hard for the industry.
    Mr. Shuster. The member is recognized.
    Ms. Brown. First of all, I didn't get the memo about 
regulations, because we don't have any increase in regulations 
in the last 18 months. We have got enforcement. You know, and I 
try to work balance. I think safety is the most important 
thing. But an example of when we look at the industry with the 
wetlands and the response to it, that is an example that I 
think we need to take a serious look at.
    Rollovers is clearly more serious. And what if the truck 
rolled over onto a school bus? I mean, we can go to the 
extreme. So I think it needs to be balanced as we move forward, 
and it should be based on science.
    But, Ms. Quarterman, we have voiced some concerns about you 
all moving forward with the wetlines and the benefits. We 
actually--I don't know whether you went. I went to a shop where 
they were retrofitting. Baltimore? Yeah, we had a hearing in 
Baltimore. And we went to the different shops where they was 
fixing it, and the fix was more dangerous than the problem. So 
I mean I think it should be some balance.
    But let me go to Mr. Byrd. There was a discussion about 
OSHA and DOT. I mean, they have had separate things that they 
do all the time, but OSHA has been primarily responsible for 
worker safety. So now, if we want to get rid of somebody, maybe 
we should get rid of DOT and just have OSHA to handle the whole 
thing. I mean, is that what we are asking for?
    Mr. Byrd. No. No, ma'am, I would not recommend that.
    As I mentioned earlier, I think each agency plays a very 
important role in providing worker safety for those workers who 
deal with HAZMAT. And as I had mentioned earlier, what they 
bring to the table is not easily interchangeable. You know, DOT 
has their area of expertise, OSHA has their area of expertise, 
and there are no people that I am familiar with that are in the 
middle that have a great deal of expertise in dealing with both 
issues. I would see it would be extremely difficult for DOT to 
enforce OSHA-type regulations. I think it would cost DOT a ton 
of money to promulgate regulations and to train and hire 
inspectors to do that type of work.
    Ms. Brown. I am not supporting that, but I don't think we 
should start over.
    But you all administer the grants program.
    Mr. Byrd. Yes.
    Ms. Brown. We have a unique problem in Florida in that I 
think we receive about $6 million--and our Governor turned it 
back--for training of the firefighters. As we move forward with 
the real ugly politics, should we come up with a different way 
to get that training? Not necessarily going through the States, 
maybe the local communities or maybe it should be a different 
kind of way. Because one Governor says, yes, we want the 
training; and then the new Governor comes in and says, well, we 
don't want to do the training of the firefighters and the 
workers.
    Mr. Byrd. Well, I know in the case of truck drivers our 
employers provide some training, but the union provides what I 
think is a higher quality training overall, and we provide that 
directly to the rank-and-file truck driver and dock worker.
    Now, what we have had some success in is working with our 
employers to provide some training, and that has been 
accomplished through cents-per-hour contributions. But the 
funding that we get from the Federal Government I think is 
extremely important, enabling us to have a further reach in 
terms of providing high-quality training.
    Ms. Brown. Ms. Quarterman, can you respond to that question 
as to how we are going to provide that training when we have 
this ugly negative politics that is going on in Washington?
    Ms. Quarterman. Whenever anything political is happening, 
we just do the best we can.
    As I mentioned in my opening statement, we are in the 
process of auditing our training program, our grant program, 
and reassessing the priorities and how it will work going 
forward in the future.
    If I can just respond to the OSHA issue as well.
    Ms. Brown. Yes.
    Ms. Quarterman. Let me say that I agree with Mr. Byrd on 
this issue. DOT PHMSA has absolutely no interest in becoming 
occupational safety and health regulators. Our expertise is in 
the HAZMAT area.
    One of the reasons we are very interested in the loading 
and unloading issue is, for example, the first quarter of this 
year there were five fatalities, four of which were related to 
loading and unloading. It is one where we think we can bring 
expertise in loading and unloading of hazardous materials 
commodities and focus on that portion of the operations and try 
to get people to assess their risks and do a better job. But we 
have no desire really to be in charge of occupational safety 
and health.
    Ms. Brown. And the last question--and I know my time is up, 
but I want to ask this question. In the last 18 months I have 
heard a lot of rhetoric about additional regulations, but it 
hasn't been a lot of additional regulations in the last 18 
months. We may have additional enforcement that did not go on 
for a period of time. Can anyone speak to that additional 
regulations?
    Ms. Quarterman. Well, I can say that, as a part of the 
President's initiative to streamline regulations, we have, 
within the HAZMAT portion of the Pipeline Hazardous Materials 
Safety Administration, I don't know, maybe 20 some-odd pages of 
ideas of things that could be streamlined. We had a big meeting 
at the Department asking questions of constituents what places 
where they thought we could streamline the regulations. I am 
all in favor of that. The regulations are about this thick. I 
think if we could--obviously, we haven't gone through them with 
a fine-tooth comb recently. We need to do that. We need ideas 
for streamlining the regs.
    Ms. Brown. I am not disagreeing with that. But one of the 
reasons why we had other hearings and we have had additional 
enforcement was because the response from the audit general 
said that you needed to because of the safety aspects of it and 
how it was impacting the community. I mean, we are not just 
doing it for any other reasons other than safety.
    Ms. Quarterman. Correct.
    Ms. Brown. I yield back the balance of my time.
    Mr. Shuster. Ms. Quarterman, the time--I am going to just 
ask you one more question and then get you off to your 
airplane.
    How many different rulemakings are out there that PHMSA is 
looking at? I asked about two of them, I guess. Are there more 
out there that you are looking at?
    Ms. Quarterman. I don't know how many current rulemakings 
are pending. In terms of major rules, there is the lithium 
battery rule, the loading and unloading rule, and the wetlines 
rule. Those are the ones that I think of as being significant. 
You know, there are always rules in adopting international 
harmonization, you know, things around the edges. But, to me, 
those are the biggest rules we have pending.
    Mr. Shuster. Well, I appreciate you coming today, Ms. 
Quarterman. We will let you head out the door.
    And as you are getting ready to head out the door I will 
just reiterate that I hope we can figure out something on this 
wetlines issue. Because, contrary to what my esteemed colleague 
from Florida said, you know, that is not an enforcement, that 
is going to be a change in regulatory burden. And also a 
reminder that across the government, maybe not PHMSA so much 
but the EPA, and again across the spectrum of the government, 
there has been tremendous increase in regulatory burden on 
business. And much of it, in my view, is not based on science. 
It is based on somebody's response to it, either emotional or 
being something they want to see not based on sound science. So 
I think the economy is getting overheated with that type of 
regulatory burden.
    So thank you, Ms. Quarterman. I hope you make that plane.
    Does the gentleman from Pennsylvania wish to be recognized 
for questions?
    Mr. Meehan. Yes, thank you, Mr. Chairman. I just want to 
take a moment.
    I am very appreciative of the testimony, and, 
unfortunately, we get drawn in numerous directions. So I try to 
take the time to read your testimony so that I am educating 
myself on a lot of the issues you are bringing forward. So I 
want to thank you for the effort that you put in to helping us 
understand the problems that you are facing and particularly 
where we are looking at regulations that impact the industry.
    Ms. Windsor, you may be the person to answer this, because 
this is a situation in which I simultaneously sit on Homeland 
Security and deal with a number of issues there; and having a 
background previously in law enforcement, we dealt with a lot 
of the credentialing problems that are associated.
    Can you explain to me just briefly the concern you have 
with the uniformity and duplication in that process? I know 
that is the kind of a thing to an individual trucker or 
otherwise that can just be another cost or inefficiency; and, 
obviously, we want to look to find ways to streamline this 
process so that the ends are met, but we are not having 
unrealistic expectations.
    Ms. Windsor. And definitely we want our drivers that are 
hauling HAZMAT to be credentialed properly. But, currently, a 
truck driver will go to their local or State DMV and they are 
fingerprinted there and will apply for a hazardous materials 
endorsement on their license. Then if they are hauling HAZMAT 
products to a port, they have to get the TWIC card, 
Transportation Worker Identification Credential. In fact, I 
have one. Even though I don't transport product, when I go to 
visit our trucks I have to have my own.
    And that we are talking where it can be anywhere from the 
initial HAZMAT endorsement, maybe $100 to $115. Then it is $130 
for the TWIC card. Then many shippers then also want additional 
credentialing. When in fact we are fingerprinting our drivers 
over and over again doing credentialing and background checks.
    We believe there should be one database. That if the TWIC 
card is going to be our Transportation Worker Identification 
Credential, then that should be our card for our credentialing. 
Right now, it becomes so onerous on a truck driver they can 
spend as much as $270 just to be credentialed to be able to 
even haul product.
    Mr. Meehan. Is there a time associated from time to time 
when a trucker is trying to ship materials that they are 
delayed and held up while somebody inspects or checks the 
identification that they have for compliance?
    Ms. Windsor. Well, it has been, of course, difficult 
picking up the different cards. Because they can go in and be 
fingerprinted, and maybe they make an appointment. It can be 2 
or 3 weeks before the background check returns.
    I have drivers that are HAZMAT and nonHAZMAT. During the 
winter months, those that haul dry bog during the summer, when 
that slows down I can move them into home heating fuels or 
something of that nature. They have elected not to go through 
the fingerprinting because of the cost and the time it would 
take for them to get their credentialing. They lose the 
possibility of additional earnings; and, of course, they have 
made the decision not to go through the difficulty of being 
fingerprinted or the background checks.
    Mr. Meehan. What are you seeing with respect to States 
having different standards or whether there is any kind of 
concern about nonuniformity?
    Ms. Windsor. There is major nonconformity in the States. A 
disqualifier in one State can be anything from child support to 
domestic disputes in one State. In another State, it may not 
even be listed. So it is not even uniformity with the States. 
That is why we feel like it would be better to remove that from 
the States, because you are not having uniformity on who is 
being fingerprinted.
    Mr. Meehan. Is there somebody else from the panel that has 
a perspective on this unique issue?
    OK, Mr. Chairman, thank you.
    Ms. Windsor, if you have other commentary or other evidence 
from the field that would help me understand that issue better 
I would enjoy working with the chairman and seeing if there is 
some way to----
    Ms. Windsor. There was a Safe Trucker Act that was proposed 
back in 2009 which would help to work with this; and, yes, we 
would love to. Thank you.
    Mr. Meehan. Thank you.
    Mr. Shuster. Does the gentleman yield back?
    Mr. Meehan. Yes. My time is up, Mr. Chairman. I thought you 
were going to cut me off anyway.
    Mr. Shuster. I would have been happy to yield you more 
time.
    Mr. Boston, how did the explosive industry become so 
dependent on special permits? I mean, I guess we heard the 
Administrator say there has been a huge increase in the request 
for special permits, and I believe when I had a meeting with 
her she said it was mainly due to the explosives industry.
    Mr. Boston. Yes, Chairman Shuster. Special permits are the 
only way that the explosives industry can transport bulk 
explosives such as blasting agents and oxidizers. These types 
of materials are much safer, lower sensitivity and that sort of 
thing, than packaged explosives, high explosives.
    However, the hazardous materials regulations don't 
currently provide for transportation of these materials by 
truckload. Special permits are a way, as you pointed out, that 
the hazardous materials regulations can catch up with 
technology or keep up with technology. And, actually, they 
serve as sort of an ad hoc R&D program whereby industry 
develops new technology and methods to properly and safely 
handle it and then test it via the special permit process and, 
once completed, look for incorporation into regulations.
    Now, how is--30 years ago, when we began using these trucks 
to transport blasting agents and oxidizers, that was cutting-
edge technology. As I have said, there are no provisions in the 
hazardous materials regulations to allow that, so industry had 
to petition for and receive special permits to do that.
    They have been transporting now under these special permits 
for 30 years, and during that 30 years the record of safety has 
been phenomenal. There have been no injuries or fatalities that 
have resulted from the use of those special permits. Yet those 
special permits still exist, rather than having been 
incorporated into the regulations.
    Mr. Shuster. And that is bulk explosives versus package.
    Mr. Boston. Yes, sir.
    Mr. Shuster. The package has much--or they are much more 
highly explosive, and that is something you believe needs to be 
continued under this process. But maybe we need to figure out a 
way to, as I think you are saying, to incorporate in the 
regulations where bulk explosives are much safer, in fact, no 
fatalities in 30 years. We need to change the way we have 
oversight and regulation on bulk.
    Mr. Boston. Yes, sir, that is correct. Understand that the 
packaged explosives, high explosives, there are provisions 
already in the hazardous material regulations that allow for 
their transportation. Therefore, special permits generally 
aren't necessary for that. The shortcoming or the weak point is 
how 95 percent of our explosives are transported now, still 
aren't covered by the regulations, and so we have to use 
special permits.
    Mr. Shuster. Right. So in answer to your question, Mr. 
Filner, I am going for less regulation here because it appears 
to me that the industry has figured out how to ship bulk 
explosives.
    What is a bulk explosive? Give me a material.
    Mr. Boston. An ammonium nitrate emulsion is one. That would 
be a material that has got some ammonium nitrate. Fuel oil, 
that is another. So those are the----
    Mr. Shuster. And package would be dynamite?
    Mr. Boston. A package would be dynamite. It might be the 
perforators that my company offers. Detonators, detonating 
cord, all of those things are high explosives, and they are 
currently already covered by regulation.
    Mr. Shuster. And so the bulk explosives we could 
streamline, reduce the red tape you have to go through to ship. 
And, again, we figured out in the last 30 years how to do it 
very, very safely.
    Mr. Boston. Yes, sir, that is correct.
    Mr. Shuster. I appreciate that.
    But they don't necessarily need one anymore because they 
figured it out. I mean--no, it is because technology--that is 
the beauty of technology. You change it, and then all of a 
sudden things are much safer, and you can do without as much 
regulation and oversight. And that is a good thing.
    Anybody have any questions?
    Mr. Filner. Thank you, Mr. Chairman, for the courtesy.
    The gentleman from Pennsylvania is very eager to compliment 
the representatives to prevent us from onerous regulation. I 
would just like to compliment that Mr. Byrd is protecting the 
safety and health of our working people. Thank you very much.
    Mr. Shuster. And I want to thank all the witnesses and 
again thank the members. This is a fly-in day for us. I 
appreciate Mr. Meehan, Mr. Filner, and others for being here at 
the hearing today. And I appreciate the witnesses for taking 
the time and help to enter into discussion as we move forward 
on this transportation bill. We want to make sure we are doing 
the right things when it comes to HAZMAT and making sure to 
take into consideration both safety and the economic benefits 
that you provide to the economy and the jobs you provide to the 
economy. So thank you very much.
    And, with that, this hearing is adjourned.
    [Whereupon, at 4:51 p.m., the subcommittee was adjourned.]
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