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22–497 PDF 2005

HAZARDOUS MATERIALS ENDORSEMENT BACKGROUND CHECKS

(109–18)

HEARING

BEFORE THE

SUBCOMMITTEE ON

HIGHWAYS, TRANSIT AND PIPELINES

OF THE

COMMITTEE ON

TRANSPORTATION AND

INFRASTRUCTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

MAY 11, 2005

Printed for the use of the

Committee on Transportation and Infrastructure

(
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-Chair

SHERWOOD L. BOEHLERT, New York

HOWARD COBLE, North Carolina

JOHN J. DUNCAN, JR., Tennessee

WAYNE T. GILCHREST, Maryland

JOHN L. MICA, Florida

PETER HOEKSTRA, Michigan

VERNON J. EHLERS, Michigan

SPENCER BACHUS, Alabama

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

GARY G. MILLER, California

ROBIN HAYES, North Carolina

ROB SIMMONS, Connecticut

HENRY E. BROWN, JR., South Carolina

TIMOTHY V. JOHNSON, Illinois

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

TOM OSBORNE, Nebraska

KENNY MARCHANT, Texas

MICHAEL E. SODREL, Indiana

CHARLES W. DENT, Pennsylvania

TED POE, Texas

DAVID G. REICHERT, Washington

CONNIE MACK, Florida

JOHN R. ‘RANDY’ KUHL, JR., New York

LUIS G. FORTUN ̃ O, Puerto Rico

LYNN A. WESTMORELAND, Georgia

CHARLES W. BOUSTANY, JR., Louisiana

VACANCY

JAMES L. OBERSTAR, Minnesota

NICK J. RAHALL, II, West Virginia

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JERROLD NADLER, New York

ROBERT MENENDEZ, New Jersey

CORRINE BROWN, Florida

BOB FILNER, California

EDDIE BERNICE JOHNSON, Texas

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

LEONARD L. BOSWELL, Iowa

TIM HOLDEN, Pennsylvania

BRIAN BAIRD, Washington

SHELLEY BERKLEY, Nevada

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

JULIA CARSON, Indiana

TIMOTHY H. BISHOP, New York

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

BRIAN HIGGINS, New York

RUSS CARNAHAN, Missouri

ALLYSON Y. SCHWARTZ, Pennsylvania

JOHN T. SALAZAR, Colorado

(II)
SUBCOMMITTEE ON HIGHWAYS, TRANSIT AND PIPELINES

THOMAS E. PETRI, Wisconsin, Chairman

SHERWOOD L. BOEHLERT, New York

HOWARD COBLE, North Carolina

JOHN J. DUNCAN, JR., Tennessee

JOHN L. MICA, Florida

PETER HOEKSTRA, Michigan

SPENCER BACHUS, Alabama

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

GARY G. MILLER, California, Vice-Chair

ROBIN HAYES, North Carolina

ROB SIMMONS, Connecticut

HENRY E. BROWN, JR., South Carolina

TIMOTHY V. JOHNSON, Illinois

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

TOM OSBORNE, Nebraska

KENNY MARCHANT, Texas

MICHAEL E. SODREL, Indiana

DAVID G. REICHERT, Washington

VACANCY

DON YOUNG, Alaska

(Ex Officio)

PETER A. DEFAZIO, Oregon

NICK J. RAHALL II, West Virginia

JERROLD NADLER, New York

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

TIM HOLDEN, Pennsylvania

BRIAN BAIRD, Washington

SHELLEY BERKLEY, Nevada

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

JULIA CARSON, Indiana

TIMOTHY H. BISHOP, New York

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

BRIAN HIGGINS, New York

RUSS CARNAHAN, Missouri

ALLYSON Y. SCHWARTZ, Pennsylvania

JAMES L. OBERSTAR, Minnesota

(Ex Officio)

(III)

(V)

CONTENTS

TESTIMONY

Page

Blank, Tom, Chief Support Systems Officer for the Transportation Security

Administration, Department of Homeland Security ......................................... 3

England, Daniel E., Chief Executive Officer, C.R. England, Inc. ........................ 3

Madar, Scott, Assistant Director of the Safety and Health Department, International Brotherhood of Teamsters .................................................................... 3

Sandberg, Annette M., Administrator, Federal Motor Carriers Safety Administration, Department of Transportation ............................................................ 3

Smit, D.B., Commissioner Department of Motor Vehicles, Commonwealth of

Virginia ................................................................................................................. 3

Zinser, Todd J., Deputy Inspector General, Department of Transportation ....... 3

PREPARED STATEMENT SUBMITTED BY A MEMBER OF CONGRESS

Oberstar, Hon. James L., of Minnesota ................................................................. 61

PREPARED STATEMENTS SUBMITTED BY WITNESSES

Blank, Tom ............................................................................................................... 26

England, Daniel E ................................................................................................... 33

Madar, Scott ............................................................................................................. 43

Sandberg, Annette M ............................................................................................... 64

Smit, D.B .................................................................................................................. 68

Zinser, Todd J .......................................................................................................... 88

ADDITION TO THE RECORD

Agricultural Retailers Association, statement ...................................................... 107

(1)

HAZARDOUS MATERIALS ENDORSEMENT

BACKGROUND CHECKS

Wednesday, May 11, 2005

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, SUBCOMMITTEE ON

HIGHWAYS, TRANSIT AND PIPELINES, WASHINGTON,

D.C.

The subcommittee met, pursuant to call, at 3:15 p.m., in Room

2167, Rayburn House Office Building, Hon. Thomas E. Petri [chairman of the subcommittee] presiding.

Mr. PETRI. The meeting of the Subcommittee on Highways, Transit, and Pipelines will come to order.

We will do our best to accommodate our witnesses’ schedules. To

that end, the members of the Committee, if they appear, will make

closing statements rather than opening statements. I will make

one, and Mr. DeFazio, and possibly Mr. Oberstar at the very beginning, but abbreviated.

We welcome you and we very much appreciate your coming to

discuss this very important subject. This oversight hearing of the

Subcommittee on Highways, Transit, and Pipelines will specifically

focus on background checks for drivers with a HAZMAT endorsement on their Commercial Drivers License.

This requirement, which was included in the Patriot Act that

passed shortly after 9-11, seeks to identify persons carrying hazardous materials that may pose a security threat, and address, in

part, the vulnerability posed by thousands of hazardous materials

shipments traveling each day on our Nation’s highways. The process will include a fingerprint-based criminal history, immigration,

and intelligence-related checks based on driver information. During

2004, the Transportation Security Agency screened 2.7 million drivers with a HAZMAT endorsement by completing a name-based

screening of drivers with various Government databases.

In the years leading up to the implementation of the background

checks, many questions were raised as to how the program would

be structured, how States would have to adjust Commercial Drivers

License programs to meet the new requirements, and the impact

on trucking companies and drivers as the background checks were

phased in. States were uncertain how to structure their program,

as guidance from the Transportation Safety Administration was delayed even as compliance deadlines looms. States also had to determine whether to utilize TSA agents for the collection of information

and fingerprinting or whether to gather the information on its own.

Other questions, which I hope will be covered by the witnesses

in the course of this hearing, include: the cost of the program,
2

which may be $72 million for the Transportation Safety Administration over the first five years; the ability of the Administration

to provide timely security threat assessments on up to 45,000 applicants per month and handle any appeals that may result; additional fees the drivers face to meet the increased cost of securing

a HAZMAT endorsement; rights of drivers who have been denied

a license based on the background checks; what information will be

shared with companies on the drivers affected; and the impact on

interstate commerce if drivers are unable to drive due to delays in

the processing of license renewals.

At a time when we are already facing a drivers shortage, some

have expressed concern that the new requirements will have a

chilling effect on recruitment and retention of HAZMAT drivers,

with some suggesting up to 20 percent of drivers not choosing to

renew their HAZMAT endorsement.

Today we will hear from a distinguished panel representing a

cross-section of interests that are affected by this, including a representative from the Transportation Safety Administration, from

the Federal Motor Carrier Safety Administration, the Office of the

Inspector General of the Department of Transportation, the Virginia Department of Motor Vehicles, and also from transportation

industry representatives about their concerns.

I now recognize the Ranking Democrat on the Subcommittee, Mr.

DeFazio, for his opening statement.

Mr. DEFAZIO. Thank you, Mr. Chairman. Mr. Chairman, thank

you for holding this oversight hearing. I am pleased that we are

finally beginning to fully implement the intent of the law in terms

of verifiable background checks for HAZMAT drivers with Commercial Drivers Licenses.

My concern is that because we are having a full requirement on

newly licensed drivers, that with the renewal period it will be actually 2010 before we have completed all of these background checks.

I would like to investigate ways that we could see that we are fully

compliant with the law more promptly.

There are also I think legitimate concerns being raised by those

who will be subjected to this requirement in terms of access to licensing points or places where they can be fingerprinted and the

cost of that. Certainly, we would like to look at ways to not make

this an onerous burden, knowing that many of these drivers in the

deregulated environment are not making a tremendous amount of

money.

Mr. Chairman, I think that this is a timely hearing and there are

a number of issues before the Committee that are very important

for public safety and the regulation of commerce in a way that

makes sense to maximize safety but also not to be overly burdensome on the industry. So I look forward to the testimony.

Mr. Chairman, if I could, I do regret that, not that I am disinterested in this, but I have an absolutely essential hearing over in

Resources that is very, very pointed toward my district and I will

have to leave for that in the not too distant future.

Mr. PETRI. Thank you.

It is nice to put a name behind a product or a company, or in

this case a truck. I have seen many England trucks over the years,

and a growing number I might add, as a member of the traveling
3

public. We would like to ask Mr. Daniel England, Chief Executive

Officer of C.R. England Trucking Company, if he would lead off.

TESTIMONY OF ANNETTE M. SANDBERG, ADMINISTRATOR,

FEDERAL MOTOR CARRIERS SAFETY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION; TODD J. ZINSER, DEPUTY

INSPECTOR GENERAL, DEPARTMENT OF TRANSPORTATION;

TOM BLANK, CHIEF SUPPORT SYSTEMS OFFICER FOR THE

TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF HOMELAND SECURITY; D.B. SMIT, COMMISSIONER

DEPARTMENT OF MOTOR VEHICLES, COMMONWEALTH OF

VIRGINIA; DANIEL E. ENGLAND, CHIEF EXECUTIVE OFFICER,

C.R. ENGLAND, INC.; SCOTT MADAR, ASSISTANT DIRECTOR

OF THE SAFETY AND HEALTH DEPARTMENT, INTERNATIONAL BROTHERHOOD OF TEAMSTERS

Mr. ENGLAND. Mr. Chairman, Ranking Member DeFazio, and

also Mr. Matheson, who I shared a podium with last week and

pleased to see here, and other members of the Committee, thank

you for inviting me to testify today on behalf of American Trucking

Associations on the subject of TSA’s implementation of the background check for drivers with hazardous materials endorsements.

As was mentioned, my name is Dan England. I am the CEO of

C.R. England, Inc., a family-owned trucking business

headquartered in Salt Lake City, with operations throughout the

U.S. and in Mexico and Canada. We operate approximately 2,600

trucks and have roughly 45 employees and owner-operators. I have

submitted my written testimony for inclusion in the record.

The background check of drivers required in the Patriot Act is

intended to prevent terrorists from gaining authorized access to

hazardous materials for the purpose of doing harm. Let me be

clear, the trucking industry supports this goal. The industry supported the name-based checks TSA conducted last year. However,

the increased burdens and unjustified costs resulting from TSA’s

implementation of fingerprint-based checks have had a profound

impact on my business and they are about to have a similar impact

on all customers who ship HAZMAT.

The problems we experience today are only bound to get much

worse on May 31st when the fingerprint-based checks apply to endorsement holders seeking renewals. A name-based background

check should be sufficient to achieve our shared security objective.

Congress did not mandate fingerprint-based checks in the Patriot

Act. When I fly and TSA checks to make sure I am not a terrorist

on a terrorist watch list or on a no-fly list, nobody takes my fingerprints. They check using my name. TSA stated that they were satisfied that name-based checks of drivers addressed the immediate

security threats on several occasions last year.

Therefore, we ask you to direct TSA to continue conducting

name-based checks until a truly coordinated nationwide transportation-wide security credentialing program is in place for access to

secure areas or HAZMAT that preempts State and local requirements. Name-based checks can be done with little or no delay, very

little additional expense to the driver, and no costs or hassles associated with time wasted going to and from remote fingerprint locations.
4

About a year and a half ago, I and several other trucking company owners had the opportunity to meet with TSA officials to discuss implementation of the fingerprint program. The trucking industry conveyed three key points: (1) the process should be uniform

nationwide; (2) the process should be convenient and not unduly

expensive for drivers; and (3) carriers should be notified of the ultimate disposition regarding their drivers. Unfortunately, I appear

here today dealing with a process that is (1) not uniform; (2) inconvenient and costly for drivers; and (3) one in which I am not notified of my drivers’ status.

The ramifications are significant. Until February 28, we required

all of our approximately 3,500 drivers to obtain hazardous materials endorsements. Because of the costs, delays, and administrative burdens associated with fingerprinting, we have discontinued

this requirement. Driver turnover in my sector, the truckload sector, is and always has been high. We hire over 100 drivers per

week. Because of the cost to the driver, for which they see no return, few of our new drivers apply for the endorsement. In just over

three months, coinciding with the January 31st fingerprint requirement for new entrants, our endorsed driver count has gone from

about 3,500 to 2,600.

Our ability to haul HAZMAT is rapidly diminishing. Soon shippers of everyday commodities such as soda drink syrup and chewing gum extract which require endorsements to haul will find it difficult to move their goods. If they can find a carrier, it will likely

be at increased cost. Let me give you a real life example. Less than

5 percent of my company’s shipments are HAZMAT.

However, 60 percent of that amount comes from our second largest customer. Because it is virtually impossible to dedicate certain

endorsed drivers to this customer’s account, or any HAZMAT account for that matter, we required endorsements for all of our drivers.

In light of the new requirements, we examined the financial feasibility of continuing to haul HAZMAT freight. Our additional cost

per HAZMAT load came out to be $500. Therefore, we no longer require all drivers to have endorsements. As our capacity to haul

HAZMAT diminishes, I am not sure how long we will be able to

retain this customer if we cannot haul their HAZMAT freight.

I have included in my written testimony a number of problems

faced throughout the trucking industry. Here are a few others I

have noticed:

The lack of uniformity forces my company to deal with different

processes in a number of States. For example, Texas, a non-TSA

State, will not recognize a background check from Utah, a TSA

State. Thus requiring the individual to get fingerprinted again and

pay an additional fee. Most States do not have enough fingerprint

locations, and where there are locations their availability is limited. Utah has one in Salt Lake City and recently opened a second

one off of I-15 that is only open on Thursday from 2:00 to 6:00 p.m.

We have had drivers who, due to long lines, have had to come

back another day. Delays in getting the results vary from two

weeks to as long as 180 days. Finally, we never receive notification

of whether the driver has been cleared or rejected. This makes no

sense to me from a security standpoint.
5

At a time when carriers are struggling to attract qualified drivers, and I want to emphasize that, it is one of the most serious

problems we have, and freight volumes are up, TSA has imposed

upon the industry an unwieldy fingerprint process that discourages

drivers from obtaining hazardous materials endorsements. The

truth is, if somebody intends to do harm with a load of HAZMAT,

that person is more likely to highjack a load than take the time to

learn the skills to safely transport HAZMAT and obtain an endorsement.

TSA also needs to give some serious thought to the scope of commodities they are targeting. A vast majority of commodities requiring placarding, like soda drink syrup, paint, or nail polish, are simply not going to be used by terrorists. In the meantime we should

continue with the one solution that enhances security in an efficient and cost-effective manner, and that is name-based checks.

Mr. Chairman, thank you again for giving me the opportunity to

voice my industry’s concerns about this background check program.

Mr. PETRI. Thank you. Thank you for your testimony. I apologize

for not recognizing the Representative from Utah, a member of our

Committee, Mr. Matheson for any comments. Did you want to say

anything?

Mr. MATHESON. Nothing at this time, Mr. Chairman.

Mr. PETRI. The next witness is Ms. Annette Sandberg, the Administrator of the Federal Motor Carriers Safety Administration.

Ms. SANDBERG. Thank you, sir. Chairman Petri, Ranking Member DeFazio, and members of the Subcommittee, thank you for inviting me to discuss the hazardous materials endorsement background checks. I am pleased to appear before you to describe the

Federal Motor Carrier Safety Administration’s role in enforcing

these background checks and how we work with our partners at

the Transportation Security Administration to ensure the safe and

secure transportation of hazardous materials across our Nation’s

highways.

The Commercial Vehicle Safety Act of 1986 established the Commercial Drivers License program and the CDL Information System,

known as CDLIS. The goal of the CDL program is to ensure that

persons who operate commercial motor vehicles have only one driver’s license at a time.

CDLIS enables States to exchange commercial driver licensing

information. It includes the databases of 51 licensing jurisdictions

in the CDLIS Central Site. FNCSA’s role in the CDL program is

to verify the CDL program is uniformly and properly administered

by all 51 jurisdictions, including enforcing State compliance with

TSA’s hazardous materials security threat assessments.

To obtain a CDL, applicants must complete an application form

verifying that they are medically qualified and not subject to a disqualification in another State. Additionally, the applicant must

pass a general knowledge and applicable endorsement knowledge

test and a skills test in a representative commercial motor vehicle.

Upon surrender of a current non-CDL license, the applicant is

issued a CDL with applicable class and endorsements.

Drivers wishing to transport hazardous materials must obtain a

hazardous materials endorsement to the CDL. As part of the licensing process, applicants are required to satisfactorily pass a knowl-
6

edge test related to hazardous materials transportation. The second

part of the HM endorsement process requires the drivers to undergo a criminal background check, otherwise known as a security

threat assessment.

TSA is responsible for conducting all security threat assessments. To obtain an HM endorsement, the driver submits to

fingerprinting by a State or TSA agent and provides proof of citizenship or immigration status. Fingerprints are sent to the FBI for

a criminal background, while TSA checks information from national and international databases. TSA provides the results to the

State DMV which issues or denies the endorsement.

If an applicant is deemed to be a security risk and therefore denied an HM endorsement, the applicant may appeal the risk determination to TSA. If overturned on appeal, the applicant may then

be issued a CDL with an HM endorsement.

Our agency has a significant role to play in promoting and verifying State compliance with TSA’s hazardous materials security

threat assessment requirements. FMCSA verifies State compliance

in two ways. First, we conduct a regular CDL State compliance review every three years. Second, we conduct a special CDL compliance review any time the agency receives a complaint that a State

is not following proper procedures.

Our agency conducts compliance reviews on the CDL program

not only to verify the State’s compliance with the TSA hazardous

materials security threat assessment, but to promote nationwide

compliance and uniformity with Part 384 of the Federal Motor Carriers Safety Regulations. The CR program is a comprehensive onsite examination of the State’s CDL program.

During the review, our agency works with the States to improve

highway safety and reduce CDL fraud by assessing the effectiveness of the State’s CDL program and compliance with the 29 requirements listed in Part 384. FMCSA identifies legal, technical,

operational, and administrative deficiencies in State CDL programs, establishes a mechanism for monitoring States’ progress in

correcting serious program deficiencies or areas of non-compliance,

and assesses a State’s vulnerability to CDL fraud.

FMCSA averages about 15 CDL compliance reviews a year. In

2004 and 2005, our agency made improvements to its CDL program, including developing on-site review training for States, incorporating Motor Carrier Safety Improvement Act implementation

and CDL fraud vulnerabilities assessments into the process, and

establish a CDL sanctioning process for States found to be in substantial non-compliance.

States found to be out of compliance with any of the CDL requirements will have 5 percent of certain Federal-aid highway

funds withheld the first year and 10 percent the second year and

subsequent years of non-compliance. Our agency may decertify a

State’s CDL program, prohibiting the State from issuing Commercial Drivers Licenses if the deficiency that caused the substantial

non-compliance affects a substantial number of CDL applicants or

drivers.

FMCSA has modified the CR process to ensure thorough and

proper oversight, that the State one, has the statutory authority to

enforce the TSA threat assessment requirements; and two, is fol-
7

lowing proper procedures in issuing a Commercial Driver License

with hazardous materials endorsement. Since TSA implemented

the security threat assessment on January 31 for drivers obtaining

an HM endorsement for the first time, three compliance reviews

with hazardous materials components have been conducted. These

were conducted in the District of Columbia, Tennessee, and Idaho.

No substantial non-compliance findings regarding the hazardous

materials endorsement process were found in these reviews.

Mr. Chairman, TSA has the lead in developing and implementing

the process that States must follow to conduct HM security threat

assessments. Our agency reviews State compliance with the TSA

requirements and verifies all States have a solid and compliant

CDL program. By verifying regulatory compliance, our agency’s activities are a significant contribution to increased safety and security for hazardous materials transport.

I look for to working and continuing this partnership as we move

forward to implement this very important program. Our agency

will continue to work with TSA to iron out any differences and inefficiencies to ensure that the program works seamlessly across the

agency and departmental lines, keeps unsafe and unsecured drivers off our Nation’s highways, and provide for the adequate State

compliance enforcement of the CDL program. Accomplishing these

goals will allow us to maintain the safety and security of America’s

communities. Thank you, and I would be happy to answer questions after the panel is finished.

Mr. PETRI. Thank you. The next witness is Mr. Todd Zinser, the

Deputy Inspector General of the Department of Transportation.

And as is the case with the other witnesses, your full statement

will be made a part of the record and we invite you to summarize

it in approximately five minutes.

Mr. ZINSER. Thank you, Mr. Chairman. Mr. Chairman, Mr.

DeFazio, members of the Subcommittee, on behalf of Inspector

General Mead, we appreciate the opportunity to testify today on

HAZMAT endorsement background checks.

A critical post-September 11th issue is the interdependency

among the Department of Transportation and other Federal agencies to carry out programs that have both safety and security elements. For the DOT, this intersection of safety and security is most

pronounced in the area of hazardous materials oversight and enforcement. We commend the Subcommittee for holding this hearing

and keeping this issue at the forefront.

As we have been reporting since September 11th, the imperative

for the Department is to effectively integrate new security measures into our existing safety regimens in ways that promote stronger security without degrading transportation safety and efficiency.

In our opinion, the new background records check will, if properly

implemented, provide an additional factor of both safety and security because it will help ensure that we know that the drivers are

(1) who they say they are, (2) are legally present in the United

States, and (3) can be trusted with the public’s safety and security

when transporting HAZMAT.

Processing background records checks is not new to TSA. When

TSA was still with the Department of Transportation, it established a similar program for airport workers. And since 2002, over
8

1.6 million employees working at the Nation’s 400-plus commercial

airports have had a criminal history records check completed.

While initially a concern, the issue of timeliness turned out to be

a non-factor. In that case, the American Association of Airport Executives served as a clearinghouse to facilitate the process of fingerprints for the airports and airlines.

Since TSA is no longer part of the Department, we do not have

first-hand knowledge of how TSA is implementing the program or

whether the experience at the airports provides any lessons to the

HAZMAT endorsement rule. But based on our observations at airports and airlines, strong cooperation among all stakeholders is absolutely critical to make the process efficient and effective.

TSA is responsible for the background checks, but FMCSA

shares responsibility with TSA at the back end of the process by

ensuring the States comply with TSA’s rule. And as Administrator

Sandberg mentioned, if the States do not comply, FMCSA can withhold Federal funds or take away a State’s authority to issue CDLs.

So DOT remains a critical link in the safety and security chain,

along with the States and the trucking industry.

We have done a substantial amount of audit work in the past,

initiated at the request of this Subcommittee, to assess and improve the Commercial Drivers License program. This program, established by Congress less than 20 years ago, now has 11 million

CDL holders on record and is the centerpiece of the Department’s

Motor Carrier Safety Program. One concern we have reported on

and continue to stress to the Department is the program’s vulnerability to fraud, and FMCSA is taking steps with the States to

strengthen the program against fraud.

After September 11th, several CDL fraud cases gained the attention of other law enforcement agencies because foreign national

were involved. Currently, for example, two of our 28 CDL fraud investigations involve the Joint Terrorism Task Force, but to date

none of our investigations have found terrorist activities.

In closing, Mr. Chairman, we would suggest a few areas for

FMCSA to watch. Each of these suggestions is geared toward making sure we effectively integrate the background data into the CDL

process.

First, computer system tests will be needed to ensure that information is properly collected and shared among TSA, FMCSA, and

the States. For example, is the HAZMAT endorsement data being

integrated into the existing Commercial Drivers License Information System? We have concerns that they are not taking advantage

of this existing system.

Second, routine monitoring of data should also be used, as we

have suggested in other parts of the CDL program, to spot problems that may develop. For example, are there noticeable gaps in

any of the data?

Third, new compliance review steps and additional expertise may

be needed to assist States with compliance with the new TSA rule.

Has FMCSA retooled its compliance review steps to cover this requirement?

Finally, Mr. Chairman, FMCSA’s previous experience with conducting reviews of State CDL programs and the fact that they regularly visit States to conduct these reviews puts FMCSA in the
9

best position to identify any inconsistencies among the States concerning HAZMAT endorsement checks and how to fix them.

This concludes our testimony. We would be glad to answer any

questions.

Mr. PETRI. Thank you. Mr. Tom Blank, Chief Support Systems

Officer of the Transportation Security Administration of the Department of Homeland Security. Welcome.

Mr. BLANK. Good afternoon, Mr. Chairman, Representative

DeFazio, and other members of the Subcommittee. It is my pleasure to be here with you today to speak about the Department’s implementation of the HAZMAT threat assessment program. We see

this as an important step in countering the very real threat that

terrorists could pose in securing licenses to operate trucks carrying

hazardous materials.

There is much to be proud of with the implementation of the program. The Department has thus far conducted name-based security

threat assessments on all 2.7 million HAZMAT drivers that hold

Commercial Drivers Licenses. In the three months since the Department began fingerprint-based checks, we have had over 30,000

enrollments. We have cleared more than 25,000 of those, and 33

States and the District of Columbia participate with us as agents

through which TSA collects and transmits fingerprint and driver

applications. We are processing currently 84 percent of what we receive within five days relative to the background check.

Right now, we have 123 enrollment sites, including local law enforcement offices, mobile units, truck stops, and other sites that

meet certain minimum standards required by TSA, with plans to

put at least 24 additional sites in place and open and operating by

May 31 of 2005.

TSA actively engages daily with the State Departments of Motor

Vehicles, industry associations, Members of Congress, and other

stakeholders to develop enhanced enrollment capabilities. The

agency does propose to submit to the Subcommittee the roster of

all of the sites that are open and operating as of May 31. And I

would add that for the 33 States and the District of Columbia that

are participating in the TSA agent program, that the States have

approved the locations where we have put these sites.

TSA is employing a phased approach to implement the program,

which began, as has been discussed, with name-based security

threat assessments of all HAZMAT drivers, which we completed in

the summer of 2004. This critical effort required a terrorist-focused

name check of 2.7 million hazardous material drivers and resulted

in the referral of 100 individuals to law enforcement agencies.

The second phase began January 31, 2005, which includes a fingerprint-based Federal Bureau of Investigation criminal history

records check, an intelligence related check, and an immigration

status verification. The third phase, which we are on track to begin

at the end of this month, will extend the fingerprint-based checks

to HAZMAT drivers seeking to renew or transfer the hazardous

material endorsement.

Now, all HAZMAT drivers seeking to obtain a new HME or to

renew or transfer must satisfy the requirements of the TSA rule

by first obtaining a No Security Threat Determination from TSA.

Here is how this works. The driver submits biographical informa-
10

tion and fingerprints to TSA through a TSA contractor in agent

States or through the DMV or the DMV’s contractors in non-agent

States. We conduct a threat assessment, relay the determination to

the applicant and the State DMV.

If an applicant meets TSA’s security threat assessment standards, the State may issue the HME. If not, the State must deny

the hazardous materials endorsement. Under certain circumstances, an applicant may appeal the initial TSA determination. In most cases, drivers who are unsuccessful in appealing the

initial determination or do not contest it may apply for a waiver.

The threat assessment comprises two distinct processes—an initial adjudication process in which TSA assesses the applicant’s

criminal history, citizenship status, and mental history, and vets

the applicant against relevant intelligence databases, and a postadjudication appeals and waiver process that is consistent with the

framework available to transportation security cardholders under

the Maritime Transportation Security Act.

TSA has established a comprehensive program and it is working.

We make the security threat determinations quickly and efficiently.

Of all the applications submitted so far, more than 25,000 have

been cleared to hold an HME, and TSA’s goal is to complete the

adjudication process within 30 days. We have already exceeded

that by processing 85 percent of these applications within 5 days

after receiving all information necessary to consider the threat assessment. Most of the appeals we are able to resolve thus far in

1 to 5 days. And we do have procedures in place to ensure that

drivers are covered by their HMEs during the adjudication process.

We are not without challenges. We are working with our colleagues at AAMVA whose CDLIS system would enable us to collect

and electronically submit the applications from non-agent States.

The Department is also carefully assessing interoperability to the

HAZMAT program with other vetting credentialing programs, including TWIC, to ensure that such programs are complementary as

we work towards convergence of all credentialing programs.

We are also leveraging processes in our sister agencies like Customs and Border Protection and so forth. We are also working to

improve the situation with Mexican and Canadian drivers seeking

to transport hazardous materials into the U.S.

Thank you. I would be happy to answer questions at the appropriate time.

Mr. PETRI. Thank you. Mr. D.B. Smit, Commissioner, Department of Motor Vehicles, Commonwealth of Virginia. Thank you

very much for coming over here to the District today to be with us.

Mr. SMIT. Thank you, Mr. Chairman, and thank you to the distinguished members of the Subcommittee. I am D.B. Smit. I am the

Commissioner of the Department of Motor Vehicles in Virginia, and

I also chair the American Association of Motor Vehicle Administrators Government Affairs Committee. I want to thank you again for

the opportunity to testify on behalf of AAMVA.

AAMVA is a State-based, non-profit educational association representing motor vehicle agency administrators and senior law enforcement officials in the U.S. and Canada. Our members are recognized experts who administer the laws governing motor vehicle

operation, driver credentialing, and highway safety enforcement.
11

AAMVA plays a significant role in the development and supervision of both the Commercial Driver’s License and motor carrier

safety programs. Today I will share AAMVA’s historical working

relationship with TSA, I will extol some of the AAMVA and TSA’s

collaborative accomplishments, and walk through our operational

and implementation concerns, and recommend some solutions for

programmatic success.

The USA Patriot Act required background checks on CDL holders with HAZMAT endorsements. AAMVA and the States have

been working diligently to comply with these provisions. In October

of 2002, AAMVA began working with FMCSA, this is the agency

originally tasked with implementing HAZMAT endorsement background checks. Just as that relationship was formalized and rules

and procedures were established the program was transferred to

TSA, first as an agency under the US DOT and then later under

the Department of Homeland Security.

To facilitate communication among the States, AAMVA commissioned a working group in July of 2003, which also included representatives from TSA and the FBI. Since then, AAMVA and the

States have committed countless hours and untold dollars in pursuit of implementing HAZMAT provisions. In addition, the AAMVA

leadership has met or attempted to meet with all the TSA chiefs

to build relationships and address State implementation concerns

and deadlines.

These meetings have had only short-term effect due to the high

rate of employee turnover and competing demand for resources

within TSA. In the two years since the agency has overseen this

program, AAMVA has worked with five different TSA project managers. Communications break down regularly. For example, TSA

made a decision to change individual driver’s license numbers that

resulted in States inability to match background checks with

HAZMAT endorsement applications. This example also illustrates

another issue detrimental to the program. Respectfully, TSA does

not fully understand DMV business processes or who we are or

what we do.

In addition, some States are worried about the turnaround time

for receiving threat assessments from TSA. One instance, Florida

has submitted 2,179 applications since January of 2005 and has

only received 735 responses. If this continues, we believe it will

bring commerce to a grinding halt. In States such as Alaska and

Minnesota, which elected to use a TSA agent for fingerprinting,

there are an insufficient number of offices to handle the assessment requests. Many offices are inaccessible and often are in remote locations.

States use the Commercial Driver’s License Information System,

or CDLIS, to manage the Commercial Driver’s License program. Instead of using this already operational secure and time-tested system, TSA plans to use a stand alone web-based approach to receive

application data and send threat assessments to the States. This

approach will not integrate with State systems and it puts a heavy

burden on the States and will not stand the test of time.

As deadlines approach and you move forward in your analysis of

the situation, I urge you to help commerce continue unimpeded by

calling on TSA to do the following:
12

Through the highway reauthorization bill, commit to using

CDLIS versus the newly created and expensive stand alone approach.

Second, develop a realistic project time line.

Third, delay the requirement for fingerprint-based background

checks for renewal applicants until the CDLIS-based solution is

ready, since the FBI has already conducted background checks on

the current 2.7 million HAZMAT endorsement holders.

Fourth, work more closely and cooperatively with AAMVA working groups and the State experts.

Fifth, engage in a faster and more straightforward decision-making process.

And finally, share threat assessment fees with DMVs to offset

State costs.

Mr. Chairman, AAMVA and our members are committed to ensuring the security of our homeland. I want to thank you once

again for the opportunity to testify, and I welcome your comments

and your questions. Thank you.

Mr. PETRI. Thank you. We appreciate your association and you

and the work you put in to making a thoughtful and constructive

series of recommendations.

The final witness, Mr. Scott Madar is the Assistant Director of

the Safety and Health Department of the International Brotherhood of Teamsters. Sir, welcome.

Mr. MADAR. Thank you. Good afternoon, Mr. Chairman and

members of the Subcommittee. My name is Scott Madar, and I am

the Assistant Director of the Safety and Health Department of the

International Brotherhood of Teamsters. Thank you for the opportunity to testify today on behalf of our 1.4 million members regarding such an important issue. The Teamsters Union represents hundreds of thousands of drivers who make their living driving on our

Nation’s road, oftentimes carrying hazardous materials.

We recognize that conducting security threat assessments across

the transportation network is part of the Federal Government’s responsibility, and are therefore making every effort to ensure that

the system balances the need for a safe and secure industry with

the rights of the drivers to hold good jobs.

While the Teamsters appreciate the attempts of the TSA to balance security with the rights of drivers, the Union continues to believe that the process could be improved to root out true risks, to

provide a level of fairness and due process for affected workers, to

ensure privacy rights, to provide for timely processing of applications and threat assessments, and to ensure that workers are not

unfairly kept from their chosen profession. I will briefly highlight

some of our recommendations.

By way of background, it is important to point out that although

a commercial driver is not technically required to possess a

HAZMAT endorsement, from a practical standpoint it is usually

necessary for a professional truck driver to have such an endorsement since the vast majority of drivers do not exclusively transport

hazardous materials or non-hazardous materials. Thus, the loss of

an endorsement will in most, if not all, cases have the same effect

as a total loss of the CDL for a driver. For this reason it is imperative that the process be made as fair as possible.
13

With regard to disqualifying offenses, the list of disqualifying offenses must be improved. We believe the list is overly broad and

should be revised to better reflect those crimes that are more closely related to terrorism risks or threats to national security. While

none of the listed crimes can be condoned, many are not indicative

of an individual’s propensity to commit a terrorist act, and the TSA

has offered no evidence to the contrary.

Briefly on the appeal and waiver process. The Teamsters Union

is pleased that the TSA adopted a waiver process and we consider

it an essential element in ensuring that individuals who made mistakes in the past are not unfairly denied employment opportunities

in the present. However, we continue to believe that appeal and

waiver decisions should be made by an Administrative Law Judge

or some other third party not officially included in the TSA hierarchy. This would bring fairness and consistency to a system that

is central to both employee rights and national security.

With regard to time limits and application delays, the Teamsters

Union is concerned that the time limits stipulated in the rule are

too short and urge an increase in the notification timeline to at

least 90 days. The current timeline of 60 days provides insufficient

time for the HME holder to complete all aspects of the security

threat assessment should there be a need for an appeal or waiver.

While we cannot speak directly to the difficulties faced by every

driver during this initial phase-in of the background checks, we do

know that many drivers seeking new HMEs are being told that

there are long processing delays, lasting in some cases well over

seven weeks.

Additionally, some drivers who are seeking renewals and are not

currently subject to background check requirements are incorrectly

being forced by States to submit fingerprints such that a background check can be performed. At this time, it is impossible to

characterize the full extent of the problems and delays faced by applicants seeking renewals; however, it is only a matter of weeks before these problems will likely manifest themselves, as the May

31st deadline fast approaches.

Briefly on the cost to drivers. As we have stated many times, the

Teamsters Union does not believe that the drivers should have to

bear the cost of these requirements. The fees imposed should be divided among all affected parties, including the employers and the

Federal Government. In other sectors of transportation, the Federal Government has provided security assistance and this sector

of transportation should receive the same benefit.

In addition, there are costs that will be associated with States

that choose to get involved in this process by performing the information collection and transmission functions themselves. Currently, drivers in different States are being charged different

amounts to obtain their HME, up to $250 in the State of Texas.

In conclusion, the Teamsters Union appreciates the efforts made

to balance the interests of increased security with the protection of

drivers’ rights. It is our hope that these balancing efforts will continue. The recommendations that I have highlighted here, as well

as others, are discussed in much greater detail in my written comments and have been submitted for the record. I would encourage

their review and consideration.
14

With that, I thank you again for the opportunity to testify today.

I would be happy to answer any questions you may have.

Mr. PETRI. Thank you. We thank all the witnesses for their testimony. We will start the questioning with a member of our panel

on this side of the hearing who has some experience because he has

a Commercial Drivers License and has for many years, Mr. Davis

from Tennessee.

Mr. DAVIS OF TENNESSEE. Mr. Chairman, thank you very much,

and Ranking Member Oberstar, it is good to see you here today.

I do not really have any questions. But a comment I do want to

make is that it is good to see today the regulators and those who

are advocates for the trucking industry be here today to comment

on the new regulations that perhaps could bring to bear some difficult times for those who drive trucks and who deliver products

that we use in our homes and our business and help keep America’s economy going.

In 1965, while in college at Tennessee Tech I applied for and was

able to obtain what at that time was called a Special Chauffeurs

License, which entitled you to drive a bus, which I drove for a

while, you could drive a taxi, which I never drove, but you could

also drive an 18-wheeler or a 10-wheeler or 6-wheeler, whatever at

that particular time. And then I went into the construction business in the late 1970s, and obviously the Special Chauffeurs License still gave me the right to drive whatever vehicle I chose.

Well, thankfully, in the late 1980s legislation was passed that

basically said if you are going to drive an 18-wheeler, if you are

going to be on the road with a large truck of that size, you need

to at least have experience and also there are certain testing procedures that you should have to go through.

So in the early 1990s when my chauffeurs license ended, I was

grandfathered in to drive the big truck, which I had been doing for

several years anyway in business. And then I did take the test

which was the combination as well as the weight up to 80,000

pounds at that time in Tennessee.

I think there were three different tests I took. Fortunately, I

passed those and now have a CDL which I use in my construction

company. I do not do much work anymore, but I still have that and

occasionally I will move a piece of equipment from one place to another on the farm.

But I realize, I think as most on this Committee, that America

moves today by truck. Certainly, we talk about rail and we talk

about freight at some of our ports that we have and some of the

inland rivers, the Cumberland River, for instance, in my district,

the Tennessee River in my district, that provide some ports for

goods and services travel.

But most of everything that comes to the district I represent

comes by truck. So as we look at regulations, I sure hope that we

have in mind that it is important that this industry continues to

be there which has such a positive impact on our economy in America.

When we built the Interstate System we were able to start a new

process called ‘‘just in time manufacturing.’’ Our trucks deliver

those parts to the assembly plants in Smyrna, Tennessee, or in

Spring Hill to Saturn in my district. So as we look at regulations
15

with hazardous materials and these new regulations, I hope that

we do not bring to bear undue regulations that will shut down an

industry that has moved America.

I think today as we all left the Capitol and our offices in the

House Office Buildings and perhaps the Senate as well, we are well

aware of how terrorist activity can have a devastating impact on

this country, as we observed September 11th, and then today we

renewed in our minds the potential of what we felt, most of us who

were here, could happen again. That can also happen with a big

truck with hazardous materials explosives in it.

So I hope that the advocates, the drivers, the trucking industry,

as well as the regulators realize that this is something that collectively working together we will be able to have a safe America and

also an America that continues to have a great economy. I thank

you for being here.

Mr. PETRI. Thank you. Mr. Oberstar.

Mr. OBERSTAR. Chairman, thank you for the courtesy of giving

me an opportunity to respond. I would ask unanimous consent at

this time to include my statement in the record.

Mr. PETRI. Yes, sir. Without objection, so ordered.

Mr. OBERSTAR. And I would prefer that you recognize other

members who have been here earlier. I was detained on committee

business and Minnesota district business, constituents coming in to

visit. So I defer to those who were here on time.

Mr. PETRI. Thank you. I maybe would ask a couple of questions

really of all the panel, but particularly Mr. Smit and Mr. England.

It is my understanding that we have had a licensing and regulatory regime for hazardous materials in the United States for

many years and we have had special procedures in place involving

the FBI and other agencies for things like explosives and particularly dangerous materials. Now we have got this whole new comprehensive approach. This is costing State governments and it is

costing the private industry and ultimately consumers a very great

deal and it has considerable potential for disruption of the economy.

Does it really make sense? Are we adopting the right approach

of looking at every driver and sort of assuming that they are a terrorist until we can establish that they are not? Or does it make

more sense to start at the other end and look at terrorists and see

if they are likely to use a truck somewhere? I am just curious about

how we will know when we succeed in this whole effort.

I think Mr. Zinser said that they have not found any evidence

of any terrorist activity whatsoever so far. Now I do not know if

that means there has not been any, or if they have been deterred

by this regulatory regime, or if, in fact, there is nothing to find because people, if they do want to do a terrorist thing, are not going

to go in and apply for a license and go through a background check,

but they are going to steal a truck or do some underground illegal

activity and all of this legal stuff is going to be beside the point.

I do not know if you would care to comment on this, either one

of you. We want it to be as safe as possible but we do not really

want to use terrorism as an excuse to hire a lot more bureaucrats

if it is not going to be effective. How will we know when we have

succeeded, is my bottom line, and at what cost in this whole thing?
16

Mr. ENGLAND. Well I have a comment on that. Certainly in this

post-9-11 era, I think we would certainly be irresponsible if we

were not examining our modes of transportation to make sure that

they could not be used in any sort of terrorist activity. Unfortunately, in my view, in our zeal to do that, we have made some serious mistakes in the way in which we have proceeded, mistakes to

the degree that our economy is being harmed unnecessarily.

If we had continued, for instance, with simply the name-based

background check, which involved much less expense, much less

administrative work, and delay, and so forth, we could accomplish

the same thing without this tremendous escalation in cost, which,

by the way, is having the tendency right now to push drivers away

from hauling HAZMAT freight.

Unlike Mr. Madar, we are a truckload carrier and we can have

some drivers go through their whole career and may not haul a

HAZMAT load. Only 5 percent of the freight that we haul is

HAZMAT. But because of the cost and the hassle factor involved

in getting this license, we are finding now that drivers have a tendency to want to avoid carriers that haul HAZMAT freight.

And so I and the circles that I associate with of other carriers

and so forth, we are finding that many carriers situated similar to

us where only a small percentage of our businesses involve

HAZMAT, many of these carriers are discontinuing the hauling of

HAZMAT freight. And in our case, it involves giving up some very

profitable freight.

But I think the long term consequence of this is that those in the

economy, those shippers, those companies that manufacture and

ship hazardous materials are going to end up paying a lot more to

get their goods shipped because fewer people are going to ship it.

And, of course, that cost is ultimately going to be passed along to

the consumer.

Additionally, I would say that under the umbrella of HAZMAT

there are a lot of goods. I have mentioned some of them. I do not

want to mention the names of these customers but you can probably guess who they are. The major soft drink manufacturers in

this Nation are some of our largest customers. Much of their product we have to ship with a placard. I doubt if those are the sorts

of goods that a terrorist wants to get his hands on to use in connection with some sort of terrorist activity.

So my plea would simply be let us identify those goods that

would pose a legitimate terrorist threat, then let us go and figure

out ways to control or regulate the manufacture, the storage, and

the transportation of those goods. Let us not paint the broad stroke

and cover so many different kinds of goods that it costs a tremendous amount and ultimately drives many of us away from hauling

HAZMAT.

Mr. PETRI. So you are saying we have taken this category

HAZMAT, which has to do with materials that could be environmentally hazardous or a hundred and one different dangers, but

they might not be a terrorist type threat.

Mr. ENGLAND. Exactly.

Mr. PETRI. And yet we are applying this whole regulatory scheme

to everything without rethinking what we are actually looking at.
17

Mr. ENGLAND. Yes. And as an addendum to that, I think the rule

is that if you ship under 1,000 pounds of many of these HAZMAT

materials on a shipment you do not have to placard. What we find

on many of our customers, they will tender a shipment that is, say,

1,000 or 2,000 pounds of a certain volume of commodity, maybe a

corrosive or a flammable or something like that.

Again, I doubt if volumes of that kind of anything are really

going to pose a threat. So in addition to looking at the type of the

commodity, look at the volume that is shipped, and then let us

come up with some reasonable standards.

Mr. PETRI. It sounds like a good idea. Define your job so it is doable, focused, and cost-effective, and then get on with it. We have

not done the first stages. We are engaging in a broad brush regulatory regime as the first stage rather than deciding what the nature of the problem is as our first stage.

Mr. ENGLAND. Exactly.

Mr. PETRI. Other comments? Yes, sir, Mr. Blank?

Mr. BLANK. If I might, Mr. Chairman. I want to paint a little

context for a moment if I can. First of all, let me just read into the

record the mission statement of the Transportation Security Administration. It says, ‘‘TSA protects the Nation’s transportation

systems to ensure freedom of movement for people and commerce.’’

We think we are doing that with this program.

I think the first thing we have to acknowledge is TSA is the implementing agency but we are by no means a lone actor. We are

partners with DOT, and we are partners with the industry, we are

partners with the unions, and we are partners with AAMVA. Let

us remember that we are implementing this program according to

provisions of the USA PATRIOT Act, which requires us to run

HAZMAT background checks using relevant criminal history databases.

We cannot do that without a fingerprint-based check. We cannot

comply with the law. And if the law were changed, perhaps we

could give more consideration to the plea for name-based checks

only. But it is our view that we would not be in compliance with

the provisions of the law were we to skip doing the fingerprintbased checks.

Now I am a little concerned that there is some impression being

left here that we have not been sensitive to unions, industry, and

public sector State-level concerns. I think that we have a track

record that would demonstrate otherwise. First of all, we have

amended and eased up on the disqualifying crimes. Of particular

concern to the industry was a disqualifying crime of possession of

drugs. We eliminated that. That eased and kept a lot of people who

otherwise had reformed themselves working and productive.

We have partnered with the American Trucking Association to

get information out. We have been visible on the schedule. We have

found provisions to be able to extend, where a concern comes up,

to extend a CDL HME in place for 90 additional days. We have

worked with States to prevent requiring an additional check on

transfers in many instances. The industry wanted us to use law enforcement sites to take prints and transmit. We have taken that in

tow and do that. We allow drivers with a state-issued CDL learner’s permit to apply for the background checks so there is not a
18

delay for somebody that is a student. We put a requirement in

place that States must notify drivers 60 days in advance of when

a renewal is in place to give enough time.

We have provided for interoperability in the 33 States and the

District of Columbia, which is to say someone who has to do the

fingerprinting and make a submission, they can do it at any site

that is a TSA agent-operated site in any of those 33 States and the

District of Columbia. That is a pretty high degree of flexibility in

my view for somebody that has to come into compliance with this.

We will continue to value AAMVA as a partner and look at how

we can potentially use the CDLIS system. But there are different

and better technologies available to us than what CDLIS operates.

And I believe that there were opportunities even before 9-11 to improve the information technology in CDLIS. We are using webbased digital methods of transmission for these fingerprints that is

creating a high degree of efficiency, allowing us a 2 percent error

rate, and a very fast turnaround time. We just cannot do that with

the CDLIS technology as it currently exists.

Mr. PETRI. I want to give any others who want to respond a

chance. But could you comment a bit on the point that there is a

lot of material that is labelled as hazardous which really is not a

threat in any way if it falls into the hands of terrorist. It is a

threat if it falls into the hands of irresponsible users to the environment or something else, but it is not like TNT or some explosive

or some dangerous gas.

Are your hands tied similarly by the laws that all hazardous materials apply to this, or could you build on the special rules that

do exist for things like TNT and some other highly dangerous

things that have all kinds of checks throughout the distribution

and manufacturing system? There are hundreds of ways to catch

someone who wants to get hold of that to do mischief.

Mr. BLANK. I think that is a good point. I think that is something

we would continue to look at with FMCSA and other parts of DOT

who are the lead in the hazardous materials regulations. So I think

that is something we can look at and it may make good sense to

do so.

Mr. PETRI. It certainly would keep the commerce flowing and

perhaps 95 percent of things that are labelled as hazardous but

were done in other context at another time and for other reasons.

That would certainly save us a lot of grief if we could make sure

that we are defining the problem and not wasting resources because we have too broadly defined it.

Any other comments? Yes, sir?

Mr. SMIT. Mr. Chairman, I would defer to TSA on whether or not

we need to go to these lengths for security. We certainly support

security in Virginia and we would want to do that. And I would

defer to the trucking industry and the TSA about what commodities we should be concerned with. But I would like to get to the

area of cost if I can, because that was part of your question earlier.

Our main concern with AAMVA, with the membership across the

country is the amount of cost that would be resident with the

States, even those States where TSA agents are essentially taking

care of the program, because we still have costs related to interface, adjudication, and normal customer service costs as well. So I
19

did not want that to escape mention because we are concerned

about the pressure on State budgets and that type of thing.

Not to quarrel with Mr. Blank, but to talk about the CDLIS technology, I think the important thing here, we would like to use

CDLIS. States are used to it. It would be easier for us to conform

with that. But let us not miss the real question we have, and that

is the timeliness of decision-making. We are scheduled to go online

July 31st. Right now, we do not know what system we are going

to be using to transmit data to TSA. That is really more a major

concern than whether we use CDLIS or not. So, again, it is the

whole area of cost, it is communication, it is working together,

making decisions and moving on. Those are our main concerns.

Mr. ZINSER. Mr. Chairman, could I just say a few words. I think

one of the problems you have is you really do not know what the

problem is and where the breakdown is. You had Mr. Smit testifying that there is a big gap between the applications that are submitted and the turnaround time; I do not remember the exact numbers. And Tom is saying that they are turning things around in no

more than 30 days. So you have a disconnect there and you do not

know where the breakdown is. I guess if we still have jurisdiction

to provide oversight to TSA, that is an area that we would look at

is where exactly is the problem.

When I mentioned the checks that were done at the airports, initially there was some problems at the airports. I think in some

cases it was taking like 40 days to get a fingerprint check done.

Well, they fixed that and the fingerprint check, for the most part,

does not appear to be a big problem in the airport environment.

And I do not know enough about TSA’s implementation here to

know exactly what the problem is.

So in terms of whether we are doing too much and whether it

costs too much, I think you need to do some analysis first to find

out exactly where the bottlenecks are.

Mr. PETRI. Yes, sir?

Mr. BLANK. I can address at least certain aspects of that. In the

early going after January 31st, we did not have a digitalized automated system in place to receive applications from the non-TSA

agent states so we were dealing with paper applications that were

being sent to us, and then fingerprints that were being taken. And

we had a situation develop where we might have a hundred or a

couple of hundred applications and we were unable to match with

fingerprint results from the FBI due to errors and inconsistencies

int he information submitted by the non-TSA agent states, and we

are getting frustrated customers, whether they be drivers or whether they be State agencies, because we have not been able to match

up fingerprints, or there was an error in fingerprints because of the

method of enrolling and transmitting them and the use of paper

products.

What we have done is say that is on us to provide better customer service. We have moved ahead and now we have liaison officers for each State in place who are going to look at that—I have

these applications but I do not have fingerprints, or I have an

error. That is not acceptable. We have got to begin to go back to

the States and deal with that backlog, and we have worked that

backlog down. We think that why we are optimistic going forward
20

is because we are looking at a more digitalized, less paper intensive

method of collection and transmission to the affected parties.

I should say, to answer the gentleman from AAMVA, where the

States are conducting this, it was by their own choice. They had

the option of taking the TSA agent to do this or using their own

existing infrastructure, which they may want to leverage for whatever reason, have control over the setting of fees in their particular

States. So they had a choice at the State level and could deal with

the issues related to cost and so forth on their own without urging

one way or the other from the Federal Government.

Mr. ENGLAND. If I may make one more comment. I have no doubt

about the diligence of Mr. Blank and his agency in going after the

mandates that they have been given. Perhaps some of those mandates were too broad, I do not know. However, he is no responsible

to move the freight around this country every day, we are.

And there are significant obstacles that are being thrown up because of what I consider to be poor planning on TSA’s part. Another one in particular, having a nationwide uniform system that

we could deal with, where we knew what we were going to have

to deal with in every State and that we had uniformity in every

State, then that would make it much easier to deal with.

Right now, we get a driver who gets a HAZMAT endorsement in

the State of Utah, he moves to some other State, a non-TSA State,

in most cases so far those other States do not recognize that endorsement. The fees in the States are different.

We met with TSA early on and recommended and admonished

just how critical it was that we have some sort of uniformity. Our

company operates in all 48 contiguous States. And as we have to

deal with this challenge of trying to get our drivers endorsed in all

States, it has become a nightmare. For that reason, we are exiting

the HAZMAT business, as are many of our fellow carriers. Mark

my words, those people who are going to be shipping HAZMAT are

going to be paying a lot more to get their goods hauled, which

means consumers are going to be paying more for those goods.

Mr. PETRI. So the price of Coke is going to go up.

Mr. ENGLAND. I did not say Coke, you did.

Mr. PETRI. Whatever. Because that is a hazardous material when

it is shipped in concentrate.

Mr. ENGLAND. That is right. That is exactly right.

Mr. PETRI. Mr. DeFazio?

Mr. DEFAZIO. Thank you, Mr. Chairman. I would agree with Mr.

England’s observation that it seems absurd that this somehow devolved to the States and Territories and that they can do it in one

of many different ways—they can do it with inked fingerprints and

just put it in the mail, or they can whatever. I guess I would just

point to the model that we have established in aviation in working

with the industry, where it is an average of four hours to clear a

person.

I do not know the cost of the remote sensing devices which transmit the data, but I do not think they are all that tremendously expensive, and would suggest that the Federal Government, since

there is a Federal interest, might pay for the capitalization costs

and then contract with someone to operate the system. In the case

of aviation, it is the AAAE, which would be equivalent to the ATA.
21

I am just curious why we decided—this is a Federal certification,

Federal background check for national security purposes—why we

devolved that to the States in this sort of diffuse haphazard manner. Could we not go to a system like is being used in aviation

which works very well. I have got to disagree with Mr. England,

I do not think a name-check is meaningful. You can be anybody

and have a good name, you could have assumed a name. That does

not tell us anything. It just tells us that name is not in the criminal database. It does not tell you that they are that person. So I

want to see fingerprints. But the way in which it is being done

seems absurd.

Mr. BLANK. We went in the direction that we went because we

did not think it appropriate to preempt the States rights with regard of issuance of drivers licenses.

Mr. DEFAZIO. No, no. Wait. We are not preempting. All we are

doing is certifying that the person whose name has that license,

who has a HAZMAT certification issued by the State, is that person and does not have a criminal background or is not an illegal

alien or terrorist. That is all we want to know. And if so, then the

appropriate Federal law enforcement people would be involved and

that person would lose their license. But we are not preempting the

States. If you use that example, then we preempted the States in

aviation, we preempted them in port security, we preempted them

in a whole bunch of areas, have we not?

Mr. BLANK. We felt it would be—I will address that in a second—

but we felt it would be very confusing if we have the Federal Government authorizing States as to whether or not it is legal and appropriate directly to issue licenses or not. Rather, we thought it

would be more appropriate for us to be their partners in conducting

this.

If you switch over to the aviation side, what we do there, as you

pointed out, for those background checks is we regulate airports

and require them to conduct certain of the enrollment and transmission function and we regulate the airlines. I am not sure how

much the trucking industry would like us to be regulating them directly.

Mr. DEFAZIO. We regulate the trucking industry in safety and

time/duty hours, things like that. There is a tremendous amount of

regulation of the interstate trucking industry. Look, it is not working, and hopefully you will admit that. It is cumbersome. It is imprecise. It is hit or miss. We really need to look at a successful

model that is a lot cheaper, that is a lot more secure, that would

not raise all the host of problems that Mr. England is pointing to

in terms of the implementation. I think if we could get it down to

$29 and four hours, I do not think he would be saying that we cannot do this.

Mr. BLANK. Congressman, I think it is premature to say it is not

working. It has barely even started yet. We have been in business

since January 31 on new

Mr. DEFAZIO. Come on. If I might just reclaim my time. I do not

know how many DMVs you visit around the country. I have visited

a few in different States. You have got some pretty primitive DMVs

out there and we are going to try and deal with that in another
22

law in terms of how they issue individual licenses to citizens or

non-citizens.

We have just preempted their authority to issue licenses to 270

million Americans and you are concerned about whether or not we

are going to preempt them. I mean, how many HAZMAT truck

drivers are there? There are not 270 million. We have preempted

270 million drivers licenses by Federal law because we do not think

the DMVs are rigorous, they are cohesive. You can go in some of

these DMVs and it is like you are back in the 1950s or in some

Third World bureaucracy.

I just do not have the level of confidence you have. I think we

could do this a much better way. You both have a point to make

here. One is, I want to have the fingerprint checks and know who

these people are, but I want to do it in a way that is not totally

disruptive and excessively costly.

If I could just ask one other question. Mr. England did make a

point, and I would hope it is not true, that what we are trying to

do here is capitalize a system that is going to be used beyond

trucking. If we are capitalizing a system for Federal national security purposes, we should capitalize it out of the Federal budget and

not on the backs of truck drivers.

Mr. ENGLAND. Excuse me. I apologize, because of the delay, I

have to go to catch a plane. But I appreciate the opportunity of

being here.

Mr. DEFAZIO. Sure. Okay. I understand that. I do it all the time.

Mr. PETRI. Mr. Blank, if you could just respond to that.

Mr. BLANK. Sure. Let me discuss the cost issue. In nearly every instance, the cost to do the background is between $92 and $94,

and that is whether or not it is at an agent or a non-agent State.

The FBI fingerprint check is $22 of that, that is a pass-through

cost; that is what it is. And the information collection element

when TSA does it is $38, when the States do it it can vary, yes,

but they are the ones that have elected to do that.

For TSA’s purposes, we have put a threat assessment fee on

there of $34, which means we are charging in the agent States $94.

For the most part, we are building the capital infrastructure with

appropriated dollars, some $12 million over the past couple of years

have built the infrastructure, appropriated dollars, but there is a

small portion of that $34 assessment fee that is contributing to

building our capability and our infrastructure to do this program.

And if I could, sir, I do want to address the issue of whether

things are working or not. We have 2.7 million background checks

to complete over the next five years on truckers that have the

HME endorsement on their CDL. We have really only been in business since January 31 doing that. We have 30,000 of that 2.7 million in. We have completed the background check on 2,500 of that.

We are prepared to ramp that up as of May 31. But I think it is

awfully early in the game to say that the system we have put in

place will not work or is not working.

Mr. DEFAZIO. Again, you are depending upon 50 States not using

uniform technology, some using Federal contractors to do this. I

just think it is destined to fail. I just do not believe that the State

of Mississippi using inked fingerprints and putting them in the

mail, or whatever State might be that retrograde versus the sys-
23

tem. I am just back to the point of the AAAE system it works, it

has more integrity, and it is more efficient, and they are apparently somehow either breaking even or making money on it at $29,

and they are accessing the same database which costs $22, so apparently their processing cost is $7.

Mr. BLANK. Well we think the cost to do this at the $92 to $94

level is in line with an original passport that is going to cost you

$97.

Mr. DEFAZIO. A what?

Mr. BLANK. An original passport. If you are over 16 and you go for a passport application, you are going to pay $97 to get a U.S.

passport.

Mr. DEFAZIO. The ones with the chips that anybody in the world

can intercept and read, those great things? Yes, those will be nice.

Mr. BLANK. I cannot address that. But I do think that we are not

out of line. We have looked at other Government fees relative to

getting official documents and credentials.

Mr. DEFAZIO. Okay. Thank you, Mr. Chairman.

Mr. PETRI. Thank you. Mr. Oberstar wanted to have some questions. We have a few minutes till a vote.

Mr. DEFAZIO. Mr. Chairman, I ask unanimous consent that

members be able to submit written questions, which will never be

answered, for the record. In my observation, most of mine go unanswered unless I am very persistent.

Mr. PETRI. Sometimes it depends on the question, too. Mr. Oberstar?

Mr. OBERSTAR. Thank you, Mr. Chairman. And I would caution

witnesses to answer questions and staff can follow up on those.

What I am concerned about here is we created the Department of

Homeland Security who is supposed to coordinate and bring all elements together. Mr. Chairman, we heard that time and again in

the creation of this Department of Homeland Security, that we can

have all these elements together under one roof and all things are

going to be hunky-dory. And they are not. There seems to be less

communication, less coordination, less cooperation now than before

creation of this Department.

Why are these agencies not coordinating, communicating, and

formulating this program and removing these obstacles. Why can

you not work out a Memorandum of Understanding within the Department on how to get this thing done instead of scrapping the

law, putting it on hold, waiting till God knows when.

We passed this legislation. We expect it to be enforced, we expect

it to be implemented, we do not expect it to be put off and delayed

until hell freezes over and it is never done. Now tell me why you

cannot work out a Memorandum of Understanding, overcome the

obstacles, get this cost down, figure out a central place that is accessible for drivers so we can get this, and the universe of drivers

who handle hazardous material is relatively small compared to the

total number of 3 million-plus CDL drivers. I want an answer.

Mr. BLANK. Well we think that we are addressing many of the

concerns that you laid out. In terms of availability of sites, taking

into consideration what an individual driver is faced with, we have

even offered to go into particular trucking companies with terminals, with a mobile unit to make it easy for their drivers.
24

Some people say we are two years late, and that is a fair criticism, sir. We published our interim final rule in May of 2003 and

we wanted to implement by November 2003. Our partners, the

States, indicated that compliance with that aggressive time frame,

given the significant IT infrastructure changes in order to accommodate this, was not realistic.

And so we first pushed that back to 2004 as a result of the feedback we got from partners, industry and others. At that point, we

realized that in order to be able to conduct this program we needed

to have fee authority, which we did not have, and the Congress did

give us that in our appropriations measure of 2004.

Then we had to go through a rulemaking in order to implement

the authority that the Congress gave us, and that began to push

us towards the end of 2004 until we could get all the Government

apparatus, if you will, in place.

But I think that a spin-off positive effect of that was it gave the

States, it gave the industry, and it gave the drivers representatives, the Unions, a significant period of time to figure out how all

of this was going to impact. This is not something that is brand

new. The people at this table have known that this has been coming for a significant period of time. And there has been communication. Are we all in agreement on everything? No, we are not. Did

we have some fits and starts and deserve some criticism? Yes, sir,

I will take that onboard.

Mr. OBERSTAR. Mr. Zinser, do you find it unusual that there has

not been an agreement worked out here?

Mr. ZINSER. Yes, sir, because TSA went through the same thing

with the airports. So we are wondering where the communication

breakdowns have occurred. It is obvious that there are disconnects

between the industry and TSA, but it is reminiscent of what the

Agency went through with the airports.

Mr. OBERSTAR. I find it unacceptable, I will just be kind, that

there is a $94 charge per test for drivers. TSA security personnel

do not pay that. TSA covers that cost. Security personnel who are

employed by airports do not pay that security charge. It is paid by

the Airport authority. Why are drivers being saddled with this

cost? Why? Because, on one hand, we have not appropriated funds

to cover the cost of doing it, and that should be done. But regulation in this context should not be paid for by the regulated.

I know, Mr. Chairman, we are running out of time. We have got

a vote on the floor and you probably want to conclude the hearing.

Mr. PETRI. Yes, we have run out of time. But I am hoping this

is the last hearing on this subject and everything moves forward

well from this point. But I am fearful that unless there are a number of big changes, we are going to be continuing to have problems

as we attempt to implement greater safety regimes in trucking. So

we will be monitoring it and working with the different stakeholders and probably revisiting this from time to time as this process

unfolds.

Mr. OBERSTAR. One final comment, if I may. It is not sufficient

in my lengthy experience in security in aviation and in surface

transportation for a name check. You have got to have more than

that. Government should pick up that cost and we ought to be ap-
25

propriating the funds for it. But we should not put these regulations off.

Mr. PETRI. The hearing is adjourned.

[Whereupon, at 4:40 p.m., the committee was adjourned.]
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