[Congressional Record Volume 147, Number 164 (Friday, November 30, 2001)]
[Senate]
[Pages S12252-S12255]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HOLLINGS (for himself, Mr. McCain, Mr. Breaux, and Mr. 
        Smith of Oregon):
  S. 1750. A bill to make technical corrections to the hazmat 
provisions of the USA PATRIOT Act; to the Committee on Commerce, 
Science, and Transportation.
  Mr. HOLLING. Mr. President, today I join with my colleagues Senators 
McCain, Breaux, and Smith in introducing the Hazmat Endorsements 
Requirement Act. We introduce this legislation today to improve the 
implementation and effectiveness of Section 1012 of H.R. 3162, The 
Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism, (USA PATRIOT), Act of 
2001, [Public Law 107-56], enacted on October 26, 2001.
  The legislation we are introducing today primarily addresses 
technical corrections to Section 1012 of the USA PATRIOT Act. Due to 
procedural agreements, the Senate consideration of H.R. 3162 did not 
provide for any amendments. I did however, engage in a colloquy with 
Chairman Leahy to state my concerns with section 1012 and my desire to 
address my concerns over substance, scope and procedure in subsequent 
legislation. The changes in legislation assume continuation of the 
basic framework of section 1012 requiring that one, States request 
security checks from the Attorney General for driver license applicants 
who would transport certain hazardous materials; second, the Attorney 
General conduct checks of relevant information systems and then provide 
the results to the Department of Transportation; and third, the 
Department of Transportation notify requesting States whether 
applicants pose a security threat.
  Our bill does the following: clarifies the definition of hazardous 
materials and gives the Secretary the ability to expand the list as 
national security issues require; defines disqualifying offenses that 
would result in the denial of a hazardous materials endorsement; 
provides for an appeals process in the event an individual is denied a 
hazardous materials endorsement based on the results of a background 
check; extends the requirement for background checks to Canadian and 
Mexican drivers who drive commercial vehicles carrying hazardous 
materials in the United States; establishes penalties for fraudulently 
issued or obtained licenses; and requires the Department of 
transportation to report back to the Congress on security improvements 
that can be made in the transport of hazardous materials.
  Approximately 10 million drivers have commercial drivers licenses and 
almost 2.5 million of those drivers have hazardous materials 
endorsements. The law has not required criminal background checks for 
applicants seeking CDLs. However, section 1012 of the USA PATRIOT Act 
now requires any driver of a commercial motor vehicle who transports 
hazardous materials to have a criminal background check prior to being 
issued a commercial drivers license (CDL). That requirement became 
effective upon the enactment of that law in October.
  Since the passage of the USA PATRIOT Act, we have worked to address 
the concerns raised by all interested parties involved in this issue, 
including the administration, the States, public safety officials, 
commercial motor vehicle drivers, and motor carriers. While everyone 
has supported the concept of performing background checks, it has not 
yet been implemented because the infrastructure for conducting 
background checks does not exist. We believe the provisions contained 
in this legislation will aid the administration, the State licensing 
agencies, and all interested parties by providing a clear understanding 
of the requirements associated with granting a license permitting a 
driver to transport hazardous cargo.

  Senator Breaux chaired a hearing on October 10, 2001, on bus and 
truck security and hazardous materials licensing for commercial 
drivers. Of particular concern were reports that terrorists may have 
been seeking licenses to drive trucks with hazardous materials. On 
October 4, 2001, a Federal grand jury in Pittsburgh indicted 16 people 
on charges of fraudulently obtaining commercial driver's licenses, 
including licenses to haul hazardous materials. Other incidents include 
a report that in September the Federal Bureau of Investigation, FBI, 
arrested a man, Nabil Al-Marabh, linked to an associate of Osama bin 
Laden, who had a hazardous materials drivers license. Al-Marabh had a 
commercial driver's license issued by the State of Michigan.. That 
license, issued on September 11, 2000, allowed Al-Marabh to operate 
vehicles weighing 100,000 pounds or more. Additionally, Al-Marabh 
obtained what is called an ``endorsement'' the same day that allowed 
him to transport hazardous materials. He took a test and paid the fee 
to obtain that endorsement.
  During that hearing, many options for increasing the security of 
hazardous materials shipments were discussed, including requiring 
background checks for drivers of commercial vehicles carrying hazardous 
materials. As chairman, I am committed to working with Senators McCain, 
Breaux, and Smith to introduce a more comprehensive legislative 
proposal next year which will reauthorize the Hazardous Materials 
Transportation Act, HMTA. Reauthorization of the HMTA addresses 
training, emergency response, safety and security concerns for all 
movements of hazardous materials.
  Annually, more than four billion tons of hazardous materials, an 
estimated 800,000 hazardous materials shipments daily, are transported 
by land, sea, and air in the United States. While hazardous materials 
transportation invoices all transportation modes, truck transport 
typically accounts for the

[[Page S12253]]

majority of all hazardous materials shipments, although the tonnage 
transported is more equally divided between truck and rail.
  There are 3.12 million tractor-trailer drivers in the United States. 
The entire trucking industry employs more than 9 million people. Trucks 
annually transport 6 billion tons of freight, representing 63 percent 
of the total domestic tonnage shipped. There are 540,000 trucking 
companies in the U.S., and 80 percent of those have 20 or fewer trucks. 
The types of vehicles carrying hazardous materials on the Nation's 
highways range from cargo tank trucks to conventional tractor-trailers 
and flatbeds that carry large portable tank containers.
  In 2000, there were 17,347 hazardous materials incidents related to 
transportation in the United States, 14,861 via highway transportation. 
These incidents are mostly minor releases of chemicals; only 244 
incidents caused injuries, and there were 13 deaths.
  Since the events of September 11, 2001, a number of legislative 
proposals have been introduced to address terrorism and the prevention 
of terrorist acts within the United States. I am pleased to report that 
the Commerce Committee has addressed security concerns in a bipartisan 
manner in all modes of transportation. On November 19, 2001, the 
President signed into law S. 1447, the Aviation Security Act, P.L. 107-
71. On August 2, 2001, the Commerce Committee favorably reported S. 
1214, the Port and Maritime Security Act, and on October 17, 2001, the 
Commerce Committee unanimously approved S. 1550, the Rail Security Act. 
Both of these measures are awaiting consideration by the Senate.
  This legislation which addresses the important issue of the safety of 
hazardous materials transportation on our Nation's highways. This 
legislation should be considered as soon as possible. We must ensure 
the hazardous materials transported over our Nation's roads are carried 
by qualified drivers. Our legislation accomplishes this in a manner 
that provides clear and consistent requirements for licensing with 
minimum bureaucratic red tape and delay in the issuance of licenses to 
eligible drivers.
  I would request that the text of this bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1750

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Hazmat Endorsement 
     Requirements Act''.

     SEC. 2. LIMITATION ON ISSUANCE OF HAZMAT LICENSES.

       (a) In General.--Chapter 313 of title 49, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 31318. Issuance, renewal, upgrade, transfer, and 
       periodic check of hazmat licenses

       ``(a) In General.--A State may not issue, renew, upgrade, 
     or transfer a hazardous materials endorsement for a 
     commercial driver's license to any individual authorizing 
     that individual to operate a commercial motor vehicle 
     transporting a hazardous material in commerce unless the 
     Secretary of Transportation has determined that the 
     individual does not pose a security risk warranting denial of 
     the endorsement or license. Each State shall implement a 
     program under which a background records check is requested--
       ``(1) whenever a commercial driver's license with a 
     hazardous materials endorsement is to be issued, renewed, 
     upgraded, or transferred; and
       ``(2) periodically (as prescribed by the Secretary by 
     regulations) for all other individuals holding a commercial 
     driver's license with a hazardous materials endorsement.
       ``(b) Determination of Security Risk.--
       ``(1) In general.--An individual may not be denied a 
     hazardous materials endorsement for a commercial driver's 
     license under subsection (a) unless the Secretary determines 
     that individual--
       ``(A) in the 10-year period ending on the date of the 
     background investigation, was convicted (or found not guilty 
     by reason of insanity) of an offense described in section 
     44936(b)(1)(B) of this title (disregarding the matter in 
     clause (xiv)(IX) after `1 year,');
       ``(B) is described in section 175b(b)(2) of title 18, 
     United States Code; or
       ``(C) may be denied admission to the United States or 
     removed from the United States under subclause (IV), (VI), or 
     (VII) of section 212(a)(3)(B)(i) of the Immigration and 
     Nationality Act (8 U.S.C. 1182(a)(3)).
       ``(2) Mitigating circumstances.--In making a determination 
     under paragraph (1), the Secretary shall give consideration 
     to the circumstances of any disqualifying act or offense, 
     restitution made by the individual, Federal and State 
     mitigation remedies, and other factors from which it may be 
     concluded that the individual does not pose a security risk 
     warranting denial of the license or endorsement.
       ``(3) Appeals process.--The Secretary shall establish an 
     appeals process under this section for individuals found to 
     be ineligible for a hazardous materials endorsement for a 
     commercial driver's license that includes notice and an 
     opportunity for a hearing.
       ``(c) Background Records Check.--
       ``(1) In general.--Upon the request of a State regarding 
     issuance of a hazardous materials endorsement for a 
     commercial driver's license to an individual, the Attorney 
     General shall--
       ``(A) conduct a background records check regarding the 
     individual;
       ``(B) take appropriate criminal enforcement action required 
     by information developed or obtained in the course of the 
     background check; and
       ``(C) upon completing the background records check, notify 
     the Secretary of Transportation of the completion and results 
     of the background records check.
       ``(2) Scope.--A background records check regarding an 
     individual under this subsection shall consist of the 
     following:
       ``(A) A check of the relevant criminal history data bases.
       ``(B) In the case of an alien, a check of the relevant data 
     bases to determine the status of the alien under the 
     immigration laws of the United States.
       ``(C) As appropriate, a check of the relevant international 
     data bases through Interpol-U.S. National Central Bureau or 
     other appropriate means.
       ``(D) Review of any other national security-related 
     information or data base identified by the Attorney General 
     for purposes of such a background records check.
       ``(3) Secretary to notify state.--After making the 
     determination required by subsection (b)(1), the Secretary of 
     Transportation shall promptly notify the State of the 
     determination.
       ``(d) Reporting Requirement.--Each State shall submit to 
     the Secretary of Transportation, at such time and in such 
     manner as the Secretary may prescribe, such information as 
     the Secretary may require, concerning each individual to whom 
     the State issues a hazardous materials endorsement for a 
     commercial driver's license.
       ``(e) Restrictions on Use and Maintenance of Information.--
       ``(1) FOIA not to apply.--Information obtained by the 
     Attorney General or the Secretary of Transportation under 
     this section may not be made available to the public under 
     section 552 of title 5, United States Code.
       ``(2) Confidentiality.--Any information other than criminal 
     acts or offenses constituting grounds for disqualification 
     under subsection (b)(1) shall be maintained confidentially by 
     the Secretary and may be used only for making determinations 
     under this section.
       ``(f) Renewal Waiver for Background Check Delays.--The 
     Secretary shall provide a waiver for State compliance with 
     the requirements of subsection (a) for renewals to the extent 
     necessary to avoid the interruption of service by a license 
     holder while a background check is being completed.
       ``(g) Definitions.--In this section:
       ``(1) Hazardous materials.--The term `hazardous material' 
     means--
       ``(A) a substance or material designated by the Secretary 
     under section 5103(a) of this title for which the Secretary 
     requires placarding of a commercial motor vehicle 
     transporting it in commerce; and
       ``(B) a substance or material, including a substance or 
     material on the Centers for Disease Control's list of select 
     agents, designated as a hazardous material by the Secretary 
     under procedures to be established by the Secretary.
       ``(2) Alien.--The term `alien' has the meaning given the 
     term in section 101(a)(3) of the Immigration and Nationality 
     Act (8 U.S.C. 1101(a)(3)).''.
       (b) Enforcement.--Section 31311(a) of title 49, United 
     States Code, is amended by adding at the end the following:
       ``(21) The State shall comply with the requirements of 
     section 31318.''.
       (c) Conforming Amendments.--
       (1) Section 31305(a)(5)(C) of title 49, United States Code, 
     is amended by striking ``section 5103a'' and inserting 
     ``section 31318''.
       (2) The chapter analysis for chapter 313 is amended by 
     adding at the end the following:

``31318. Limitation on issuance of hazmat licenses''.

       (3) Chapter 51 of title 49, United States Code, is 
     amended--
       (A) by striking section 5103a; and
       (B) by striking the item in the chapter analysis relating 
     to section 5103a.
       (4) Section 1012(c) of the USA PATRIOT Act of 2001 is 
     amended by striking ``section 5103a'' and inserting ``section 
     31318''.
       (d) Effective Date.--
       (1) In general.--The amendments made by this section shall 
     take effect on October 26, 2001.
       (2) Limit on retroactivity.--Notwithstanding paragraph (1), 
     no enforcement action shall be taken against a State under 
     section 31311 (a) (21) of title 49, United States Code, for 
     any act committed, or failure to act that occurred, in 
     violation of that section before the effective date of the 
     interim final rule prescribed by the Secretary of 
     Transportation under section 31318 of title 49, United States 
     Code.

[[Page S12254]]

       (3) Interim final rule authority.--The Secretary of 
     Transportation shall issue an interim final rule as a 
     temporary regulation under section 31318 of title 49, United 
     States Code, as soon as practicable after the date of 
     enactment of this Act without regard to the provisions of 
     chapter 5 of title 5, United States Code. The Secretary shall 
     initiate a rulemaking in accordance with such provisions as 
     soon as practicable after the date of enactment of this Act. 
     The final rule issued pursuant to that rulemaking shall 
     supersede the interim final rule promulgated under this 
     paragraph.

     SEC. 3. PROHIBITION ON OPERATING WITHOUT PROPER HAZMAT 
                   ENDORSEMENT OR LICENSE.

       (a) In General.--Chapter 313 of title 49, United States 
     Code, is further amended by adding at the end the following:

     ``Sec. 31319. Prohibition on unauthorized transportation of 
       hazardous materials

       ``(a) In General.--Notwithstanding any provision of law, 
     treaty, or international agreement to the contrary, after the 
     effective date of the interim final rule promulgated by the 
     Secretary of Transportation under section 2(d)(3) of the 
     Hazmat Endorsement Requirements Act, no individual may 
     operate a commercial motor vehicle transporting a hazardous 
     material in commerce in the United States without a hazardous 
     materials endorsement or a license authorizing that 
     individual to operate a commercial motor vehicle transporting 
     a hazardous material in commerce--
       ``(1) issued by a State in accordance with the requirements 
     of section 31318 of this title; or
       ``(2) issued by the government of Canada or Mexico, or a 
     political subdivision thereof, after a background check that 
     is the same as, of substantially similar to, the background 
     check required by section 31318.
       ``(b) Penalty.--The Secretary shall by regulation prescribe 
     the penalty for violation of subsection (a).''.
       (b) Conforming Amendment.--The chapter analysis for chapter 
     313 is amended by adding at the end the following:

``31319. Prohibition on unauthorized transportation of hazardous 
              materials''.

     SEC. 4. PENALTY FOR FRAUDULENT ISSUANCE OR RENEWAL OF 
                   COMMERCIAL DRIVER'S LICENSE.

       (a) In General.--Chapter 313 of title 49, United States 
     Code, is further amended by adding at the end the following:

     ``Sec. 31320. Penalty for fraudulent issuance, renewal, 
       upgrade, or transfer of commercial driver's license.

       ``Any person who knowingly issues, obtains, or knowingly 
     facilitates the issuance, renewal, upgrade, transfer, or 
     obtaining of, a commercial driver's license or an endorsement 
     for a commercial driver's license knowing the license or 
     endorsement to have been wrongfully issued or obtained, or 
     issued, renewed, upgraded, transferred, or obtained through 
     the submission of false information or the intentional 
     withholding of required information is guilty of a Class E 
     felony punishable by a fine, imprisonment, or both as 
     provided in title 18, United States Code.''.
       (b) Conforming Amendment.--The chapter analysis for chapter 
     313 is amended by adding at the end the following:

``31320. Penalty for fraudulent issuance of renewal of commercial 
              driver's license''.

     SEC. 5. MOTOR CARRIER SECURITY REPORT.

       (a) In General.--
       (1) In general.--The Secretary of Transportation shall 
     assess the security risks associated with motor carrier 
     transportation and develop prioritized recommendations for--
       (A) improving the security of hazardous materials shipments 
     by motor carriers, including shipper responsibilities;
       (B) using biometrics or other identification systems to 
     improve the security of motor carrier transportation;
       (C) technological advancements in the area of information 
     access and transfer for the purpose of identifying the 
     location of hazmat shipments and facilitating the 
     availability of safety and security information; and
       (D) reducing other significant security related risks to 
     public safety and interstate commerce, taking into account 
     the impact that any proposed security measure might have on 
     the provision of motor carrier transportation.
       (2) Existing private and public sector efforts.--The 
     assessment shall include a review of any actions already 
     taken to address identified security issues by both public 
     and private entities.
       (b) Consultation; Use of Existing Resources.--In carrying 
     out the assessment required by subsection (a), the Secretary 
     shall--
       (1) consult with operators, drivers, safety advocates, and 
     public safety officials (including officials responsible for 
     responding to emergencies); and
       (2) utilize, to the maximum extent feasible, the resources 
     and assistance of the Transportation Research Board of the 
     National Academy of Sciences.
       (c) Report.--
       (1) Contents.--Within 180 days after the date of enactment 
     of this Act, the Secretary shall transmit to the Senate 
     Committee on Commerce, Science, and Transportation and the 
     House of Representatives Committee on Transportation and 
     Infrastructure a report, without compromising national 
     security, containing--
       (A) the assessment and prioritized recommendations required 
     by subsection (a);
       (B) any proposals the Secretary deems appropriate for 
     providing Federal financial, technological, or research and 
     development to assist carriers and shippers in reducing the 
     likelihood, severity, and consequences of deliberate acts of 
     crime or terrorism toward motor carrier employees, shipments, 
     or property; and
       (C) data on the number of shipments and type of hazardous 
     materials for which placarding is required for transport by 
     motor carriers in the United States, including the transport 
     of hazardous materials shipments by Canadian or Mexican motor 
     carriers with authority to enter into the United States.
       (2) Format.--The Secretary may submit the report in both 
     classified and redacted formats if the Secretary determines 
     that such action is appropriate or necessary.

     SEC. 6. STUDY.

       The Secretary of Transportation shall conduct research and 
     operational testing to determine the feasibility, costs, and 
     benefits of requiring motor carriers transporting certain 
     high-risk hazardous materials, as determined by the 
     Secretary, to install ignition or engine locking devices, 
     silent alarms, satellite technology, or other mechanisms to 
     increase the security associated with the transportation of 
     such shipments by motor carriers. The Secretary may conduct a 
     pilot program to assess such devices.

  Mr. McCAIN. Mr. President, I am pleased to join with Senators 
Hollings, Breaux, and Smith in introducing the Hazmat Endorsements 
Requirement Act. The legislation we are introducing today is in large 
part a technical correction proposal to address Section 1012 of the USA 
PATRIOT Act, enacted October 26, 2001. Today's bill is designed to fill 
in a few of the gaps of the new law with respect to commercial drivers 
licenses and hazardous materials endorsements and to provide guidance 
to the Department of Transportation and the States on how to implement 
the new requirements.
  The safe transport of hazardous materials is of critical importance 
to both our nation's economy and public safety. The events of September 
11 have led to an even greater awareness of the necessity of ensuring 
hazardous cargo is transported in a manner that provides the highest 
level of safety and security possible. This bill would help improve the 
safety and security of hazardous materials transported on our roads and 
highways by ensuring the driver of such loads is not a risk to national 
security.
  Annually, more than four billion tons of hazardous materials, an 
estimated 800,000 hazardous materials shipments daily, are transported 
by land, sea, and air in the United States. While hazardous materials 
transportation involves all transportation modes, truck transport 
typically accounts for the majority of all hazardous materials 
shipments, although the tonnage transported is more equally divided 
between truck and rail. The types of vehicles carrying hazardous 
materials on the nation's highways range from cargo tank trucks to 
conventional tractor-trailers and flatbeds that carry large portable 
tank containers. The shipped materials are used in thousands of 
commercial manufactured products and they include: chlorine for water 
treatment; ammonia for fertilizers; plastics; home siding materials; 
battery casings; leather finishes; fireproofing agents for textiles; 
and, motor vehicle gasoline.
  The hazardous materials industry has a notable safety record, in 
large part due to the safety efforts of the individuals and companies 
involved in transporting hazardous materials. On average, only 10 to 15 
fatalities are attributed annually to releases of hazardous materials 
in transportation.
  The Commercial Motor Vehicle Safety Act of 1986 was enacted in an 
effort to ensure that drivers of large trucks and buses are qualified 
to operate such vehicles and to remove unsafe and unqualified drivers 
from the highways. The 1986 Act, which created the Commercial Driver's 
License Program, retained the state's right to issue a driver's 
license, but established minimum national standards which states must 
meet when licensing commercial motor vehicle, CMV, drivers.
  The CDL program places requirements on the CMV driver, the employing 
motor carrier and the States. Drivers who operate special types of 
vehicles or who transport passengers or hazardous materials need to 
pass additional tests to obtain specific endorsements to permit such 
transport on their CDL.

[[Page S12255]]

  Since 1986, over 10.5 million drivers have obtained a CDL, and almost 
2.5 million of those drivers have received hazardous materials 
endorsements. The law has not required criminal background checks for 
applicants seeking CDLs. However, section 1012 of the USA PATRIOT Act 
now requires any driver of a commercial motor vehicle who transports 
hazardous materials to have a criminal background check prior to being 
issued a commercial drivers license, CDL. That requirement became 
effective upon the enactment of that law in October.
  Both Senator Hollings and I strongly support the intent of the 
background check requirement. Unfortunately, the Senate Commerce, 
Science, and Transportation Committee, with jurisdiction over the CDL 
program and hazardous materials transportation, did not have an 
opportunity to offer our recommendations to the provision in the USA 
PATRIOT Act due to procedural agreements at the time that legislation 
was approved by the Senate. Therefore, the measure we are introducing 
today provides technical modifications to section 1012 and would ensure 
the Department of Transportation, the States, and the drivers of 
commercial motor vehicles have a very clear direction with respect to 
the requirements associated with a hazardous materials endorsement.
  Through Senator Hollings leadership, we have sought input on this 
issue from all interested parties, including the administration, the 
states, public safety officials, commercial motor vehicle drivers, and 
motor carriers. We believe the provisions contained in this legislation 
will aid the administration and all interested parties by providing a 
clear understanding of the requirements associated with granting a 
license permitting a driver to transport hazardous cargo.
  I urge my colleagues' timely consideration of this important 
legislation. We should take expeditious action to ensure the hazardous 
materials transported over our nation's roads is provided by qualified 
drivers. This must be accomplished in a manner that provides clear and 
consistent requirements for licensing with minimum bureaucratic red 
tape and delay in the issuance of licenses to eligible drivers.
                                 ______