Testimony before Senate Subcommittee on Surface Transportation and Merchant Marine on Truck and Bus Security and Hazardous Mater

Testimony of Joan Claybrook
for Advocates for Highway and Auto Safety and Public Citizen
before the Senate Subcommittee
on Surface Transportation and Merchant Marine
Senate Committee on Commerce, Science and Transportation

October 10, 2001

Thank you, Mr. Chairman and members of the Subcommittee on Surface Transportation and Merchant Marine, for the opportunity to testify before you today on the urgent topic of improved surface transportation safety and security for the people of the United States. My name is Joan Claybrook and I am the President of Public Citizen. I am testifying today on behalf of both Public Citizen and Advocates for Highway and Auto Safety (Advocates). Advocates is a coalition of consumer, health, safety, law enforcement and insurance companies and organizations working together to reduce motor vehicle deaths and injuries on our highways. Public Citizen is a national public interest organization with 150,000 members nationwide that represents consumer interests through lobbying, litigation, regulatory oversight, research and public education. Both Public Citizen and Advocates are non-profit organizations with a long history of working with this committee on improving motor carrier safety.

The terrible events of September 11th have, tragically, called attention to the fact that safety and security are inextricably intertwined, and that immediate action on key security and safety rules regarding all modes of transportation is long overdue. This is particularly true in the arena of commercial transportation of freight and passengers by motor carriers. As a nation, we have not adopted the kinds of stringent policies for safety oversight and approval of domestic motor carrier operations that would ensure the safety and security of people, cargo and institutions in the U.S. In large measure, many of these shortcomings in safety and security are the direct result of the chronic failures of the Federal Motor Carrier Safety Administration (FMCSA) and its predecessor in the Federal Highway Administration to fulfill numerous, explicit Congressional mandates to conduct rulemakings and issue safety regulations in a timely manner. Many of these actions, already requested by Congress, would, if completed, greatly improve federal and state safety oversight and provide important data on motor carrier operations.

In general, our current safety policies make it too easy to gain motor carrier operating authority, too easy to obtain and keep a commercial driver?s license (CDL), too easy to qualify for driving or transporting hazardous materials which can be used for terrorist actions, and too easy to mask violations contained in past driving records and motor carrier company operations. Data acquisition and retrieval at both the federal and state levels about past motor carrier operations and commercial driving records of the operators of large trucks and buses is poor, unreliable, or nonexistent despite repeated direction by Congress to the U.S. Department of Transportation (DOT) and the states to quickly build sound databases on company and driver safety performance. These gaps in the data must quickly be filled, with particular attention to the records regarding the agencies? safety oversight reviews, individual vehicle inspections, operating authority for hazardous materials, and traffic and criminal conviction records of drivers holding intrastate or interstate licenses for the operation of commercial motor vehicles. In fact, as detailed in my testimony, the FMCSA and its predecessor agency have failed to issue many safety regulations that would also affect security and have been mandated by Congress in seven different statutes since 1988. The agency is delinquent in acting on numerous others. Clearly, Congress must demand immediate action by this agency and its new Administrator, Mr. Joseph Clapp.

These deficiencies in safety regulation can be readily exploited to pose security threats. Under existing regulations, a terrorist organization can set up a new trucking company in the U.S. or Canada, and obtain operating authority in the U.S. for an 18-month period without any federal or state safety review or security check simply by paying a fee. Contingent upon the now-pending issue of cross-border trucking safety, this risk could soon also extend to any carriers established in Mexico and registered to transport goods throughout the U.S. Drivers for such companies can obtain Commercial Drivers Licenses (CDLs) by passing a written exam and only a minimal on-the-road test for safety proficiency, without a criminal background check or review for security purposes, and with only the most rudimentary check of the driver?s prior three-year state driving record.

After obtaining a hazardous materials endorsement for the CDL by merely passing a written exam, drivers can legally drive semi-trailers carrying up to 80,000 pounds of placarded hazardous materials on nearly all roads and through all cities in the U.S. These materials include explosives and gasoline, as well as common but deadly gases such as ammonia, chlorine, arsine, and phosphine. One tanker of chlorine, a product routinely used by state and municipal water processing plants, would, if punctured accidentally or deliberately, release a cloud of poison gas that could remain near the ground over an area as large as 40 square miles. Recent news reports have disclosed that some associates of the terrorist network responsible for the September 11th attack had in fact managed to secure CDLs and the endorsements required for transporting hazardous materials within the U.S. These revelations should raise alarm bells at every level of the DOT?s oversight and protective functions. We should not now fail to safeguard against the possibility that terrorists will make use of our commercial transportation system against the people and institutions of the U.S.

The potential danger from hazardous materials is enormous because of the huge amounts that are transported on a daily basis. According to the most recent figures published by DOT, in 1998 there were an estimated 800,000 daily hazardous materials shipments in the U.S., constituting over 3 billion tons of hazardous materials shipped annually. The Changing Face of Transportation, U.S. DOT (2000). Since there is no adequate state or national system for reporting hazardous materials, these figures are derived from indirect sources and most likely represent a gross under-reporting of total hazardous materials shipments and tonnage. DOT also reported that in 1997 over one-quarter (28.4 percent) of all hazardous materials was transported by truck. Id. Yet the vast majority (86 percent) of the more than 14,000 annual hazardous materials “incidents,” or unintentional releases of hazardous material, reported each year between 1993 and 1997 involved highway trucks. Transportation Statistics Annual Report 1999, U.S. DOT (1999). Again, due to the inadequacies of the hazardous materials incident reporting system, these figures likely significantly under-report actual incidents. Thus, shortcomings in motor carrier safety regulations have particular importance with respect to the transportation of hazardous materials.

These serious shortcomings are magnified by even more severe deficiencies at our shared foreign borders with Canada and Mexico. The pending FY 2002 DOT Appropriations bill (H.R. 2299), as passed by the Senate, goes a long way toward imposing more stringent safety controls at our southern border that will naturally assist and improve security procedures. In light of recent events, Congress should also strengthen several provisions of the legislation that still leave loopholes for Mexico-domiciled motor carriers and fail to protect U.S. highways from the risks posed by lax or inadequate inspections and data, as discussed in my testimony, below.

In addition, some provisions authored by Senator Murray (D-WA) and Senator Shelby (R-AL), including increasing the level of highway and border inspection resources and requiring more than a mere paper application and small fee to secure initial operating authority. With appropriate strengthening, some measures should be considered for application to our northern border with Canada, such as driver license checks and permanent inspection facilities at all crossings. Also, where appropriate, some improvements could be extended to our domestic carrier regulatory program by requiring an initial, on-site safety review by DOT before a grant of operating authority is issued to a new domestic motor carrier.

DOMESTIC MOTOR CARRIER SAFETY AND SECURITY DEFICIENCIES

Chronic deficiencies in motor carrier law, regulation, and safety oversight practices simultaneously erode both highway safety and domestic security needs in the U.S. In most cases, these shortcomings are the result of a persistent failure to act on the part of the Federal Motor Carrier Safety Administration (FMCSA) in response to Congressional directives which, in some instances, stretch back to the late 1980s. Many important safety regulations have not been adopted despite Congressional deadlines. These rules, if issued, would provide a solid trunk on which to graft the branches of U.S. security policies in critical areas of need. The following is a brief review of some of the major issues that affect both motor carrier safety and security in the U.S.

Defects In the Current Commercial Driver License (CDL) Program Permit Abuses

The time has come for the U.S. DOT to place more rigorous requirements on the ability to obtain and renew a CDL. It is at present far too easy to obtain a CDL in the U.S. No training or prior certification of any kind is needed to apply for and obtain a license to operate a truck or bus in interstate commerce. It is even easier in most states to obtain a license to operate a truck or bus solely intrastate. In fact, in some states a chauffeur?s license or, in some instances, even an ordinary passenger vehicle operator?s license, is sufficient to operate a smaller commercial motor vehicle for hire. Moreover, a not-for-hire rental of even a tractor-trailer is possible in a number of states without having any kind of CDL.

Interstate CDLs are issued by states according to very minimal federal rules which has both a written and an on-road component. In most cases, passing a state test to obtain a CDL requires no specialized instruction. Many applicants are self-taught, have prepped with the aid of mail-order courses, or have been given only a few lessons by a truck or bus driver they know. No certification of any kind, such as the demonstration of having passed a federally-approved training course, must be presented to take a multiple choice paper examination for the basic interstate CDL. The driving part of the test is often brief and perfunctory, and is usually conducted in the parking lot of the inspection area. Many commercial drivers admit that they learn how to operate a truck only through their employment experience. This results in inexperienced drivers when they first take to the road carrying freight throughout the U.S.

Special endorsements, such as the additional authorization to haul placardable quantities of hazardous materials, are, again, simply written “knowledge” tests. The applicant does not need to demonstrate any driving skills, but only answer a set of written questions about hazardous materials transport. There is no limit on the number of times that a test can be taken by an applicant, so many drivers simply take the test until they pass it. According to news reports, the average failure rate for the hazardous materials endorsement in one state, Oregon, is only slightly higher than the failure rate for applicants taking the very simple test for a passenger vehicle driver?s license (38 percent versus 35 percent).

Another key shortcoming of the federal CDL rules is the lack of a requirement for a commercial license for drivers operating trucks that are less than 26,001 pounds gross vehicle weight. There are millions of single-unit trucks weighing between 10,001 and 26,000 pounds operating in interstate commerce with drivers who have no CDLs, who are not subject to mandatory drug and alcohol testing, and for whom the states often have patchy, unreliable driver records of traffic and other violations and convictions. Advocates and Public Citizen support extending the CDL requirement to vehicles weighing between 10,001 and 26,000 pounds. By this action, Congress would include drivers in this weight class in an existing mandate for new data collection covering CDL-holders pursuant to Congressional direction in both the 1998 Transportation Equity Act for the Twenty-First Century (TEA-21) and the Motor Carrier Safety Improvement Act of 1999 (MCSIA).

Both Safety and Security Needs Require the Use of a Commercial Driver Unique Identifier

Advocates and Public Citizen believe that there is a crucial, unmet need for absolutely secure, reliable, and continuing identification of drivers to prevent unauthorized or illegal uses of the interstate CDL. The Truck and Bus Safety and Regulatory Reform Act of 1988 directed the Secretary to issue regulations not later than December 31, 1990, establishing minimum uniform standards for a biometric identification system to ensure the accurate identification of commercial drivers that operate vehicles weighing more than 26,000 pounds. In 1998, Congress subsequently amended the requirement in TEA-21 to remove the mandate that commercial drivers specifically shall have biometric identifiers (based upon unique biological characteristics of the driver, such as a fingerprint) and substituted the requirement that CDLs contain some form of unique identifier after January 1, 2001, to minimize fraud and illegal duplication. The Secretary was directed to complete regulations on this new legislative mandate by December 9, 1998 (180 days after enactment). However, there has been no action on this issue and the agency lists it as “Next Action Undetermined” in its latest semi-annual regulatory agenda. We believe that these regulations are sorely needed to provide integrity in the commercial driver tracking system. Another question to be answered by Congress is whether this unique identifier should also be required for licenses permitting intrastate-only commercial motor vehicle transportation.

Employment Records and Safety Performance History of New Commercial Drivers Are Still Not Being Provided to Employers

The Hazardous Materials Transportation Authorization Act of 1994 directed the DOT Secretary, by February 1996, to specify the minimum safety information that new or prospective employers must seek from former employers during the investigation of a driver?s employment record prior to hiring the prospective driver. However, the FMCSA has issued only a notice of proposed rulemaking in 1996 and Congress, in the 1998 TEA-21, gave the provision a statutory deadline of January 1999. Congress also modified the rulemaking charge to the Secretary to include protection for commercial driver privacy and to establish procedures for the review, correction, and rebuttal of inaccurate records on any commercial driver. The new TEA-21 provision went so far as to protect previous employers against liability for revealing safety performance records in accordance with the regulations issued by the Secretary.

Unfortunately, this crucial regulation, which has both major safety and security implications, has received no further rulemaking action since 1996, and the FMCSA has missed the deadline for completing rulemaking by almost three years. In addition, many trucking companies have demonstrated an unwillingness to supply such information even under the “hold harmless” provision in federal law. The FMCSA should immediately issue a final rule to require that prospective employers request such information and that previous employers transmit that information under penalties for refusal.

A collateral issue is whether revelation of any problem posing a threat to others should be shared with all enforcement and security oversight authorities after the individual has an opportunity for due process. In light of recent events, and the published reports that alleged terrorists, both fraudulently and through legal means, sought to obtain CDLs and hazardous materials endorsements, criminal background checks for CDL applicants, and an additional, appropriate security investigation of CDL holders who seek hazardous materials endorsement should be required as part of the FMCSA final rule.

Performance-Based Commercial Driver?s License Testing and Training Would Provide Important Data on Operator History, Qualifications, and Competence

TEA-21 required the Secretary to complete a review of the procedures established and implemented by states pursuant to the federal law governing the CDL, to determine if the current system for testing is an accurate measure of an applicant?s knowledge and skills by June 9, 1999. The review also required the FMCSA to identify methods of improving testing and licensing standards, including the benefits of a graduated licensing system allowing for the expansion of driving privileges over time. A notice proposing an information survey was published in the Federal Register on July 19, 1999. However, the review mandated by Congress to be completed more than two years ago remains undone and there has been no further published action on the graduated licensing survey.

Advocates and Public Citizen believe that this issue has important security implications for the safety of the American people. As indicated earlier, applicants can easily take a CDL test in many states with no required instruction and little actual driving experience, pass the test, and be awarded a CDL for unrestricted truck operation in interstate commerce. We are strong supporters of mandatory driver entry-level training to secure a CDL, and special endorsement training to transport hazardous materials and to operate Longer Combination Vehicles and school buses. We believe that drivers should not only receive federally-required training, but should also undergo lengthy periods of restricted driving privileges to determine their safety and competence. A graduated licensing program with mandatory training certification from recognized, federally-approved driver training institutions as a prerequisite for gaining a CDL would produce better, safer drivers, and would also supply information on every CDL candidate at each stage of training, certification, and graduated licensing.

Serious Offenses by Commercial Drivers in Non-Commercial Motor Vehicles Need To Be Tracked By Enforcement Authorities and Used to Disqualify Dangerous Commercial Drivers

The Motor Carrier Safety Improvement Act of 1999 (MCSIA) directs the Secretary to issue regulations by December 9, 2000, providing for the disqualification of drivers who have been convicted of a serious offense in a non-commercial motor vehicle that results in a license revocation, cancellation, or suspension, or of a drug or alcohol offense involving a non-commercial motor vehicle. The final regulation must specify the minimum disqualification period.

A notice of proposed rulemaking was issued, late, on May 4, 2001. A final rule on this mandate is now more than nine months overdue. Most states maintain official driving records for only three years and many states regularly mask or expunge a commercial driver?s record for convictions which otherwise would have triggered CDL suspension or disqualification. As a result, driver conviction records for CDL holders are patchy and incomplete. Having complete, long-term records of commercial driver violations in both commercial and non-commercial vehicles would provide necessary information about serious offenses, including criminal offenses, that are committed by current CDL holders or by new applicants, as well as those applicants who previously held a CDL, but allowed it to expire without an immediate renewal. The final rule should include provisions for assuring the maintenance and accessibility of state records, and methods to verify the driving histories of current CDL-holders as well as new applicants.

There Are Currently No New Motor Carrier Entrant Requirements to Test a Company?s Safety Proficiency and Fitness to Carry Freight or Passengers

It is far too easy for carriers to apply for and be granted interstate operating authority to haul freight and passengers in the U.S. The Secretary of Transportation was directed in the MCSIA of December 1999 to issue regulations requiring each owner and operator granted new operating authority undergo a safety review within the first 18 months after beginning motor carrier operations. The Secretary was also directed to initiate rulemaking to establish minimum requirements for applicant motor carriers, including foreign motor carriers, to ensure their knowledge of federal safety standards and to consider requiring a safety proficiency examination for any motor carrier applying for interstate operating authority.

Since enactment of the MCSIA, the FMCSA has continued to award new operating authority to applicant motor carriers without any safety fitness evaluation. There has been no rulemaking to establish minimum requirements for new entrants to demonstrate their safety knowledge and no public consideration of the need for a safety proficiency test. The FMCSA did, however, propose an 18-month safety review for Mexico-domiciled motor carriers in its proposed rulemaking of May 3, 2001, to implement the North American Free Trade Agreement. The requirements for new domestic applicants should be no less than those proposed for Mexico-domiciled carriers.

Motor carriers can presently apply for and receive domestic operating authority without any evaluation of the operating history of the company, the drivers in the company?s employ, or the quality of its safety management and equipment. Only the payment of a modest fee in the sum of $300 and completing a paper application is necessary to be registered with the federal government as a carrier. The key question here is whether the agency?s evaluation of the company and its safety practices should occur after it already has operated for up to a year and a half, or whether a safety fitness evaluation and other information which also could have both safety and security value should be a threshold requirement, before any award of operating authority is granted.

The Murray-Shelby provisions included in H.R. 2299, which passed the Senate in August, would require both an initial and a subsequent on-site safety evaluation of foreign-domiciled carriers to ensure that they have adopted adequate safety practices before they are allowed to operate on U.S. roads. Advocates and Public Citizen believe that Congress should also require an initial on-site safety evaluation of domestic carriers, including successful performance on a safety proficiency examination, as the basis for awarding conditional operating authority. A grant of permanent operating authority should be made contingent upon a subsequent on-site safety review after a year-and-a-half of operation under an award of temporary operating authority. In addition, a safety proficiency test should be mandatory at the time of initial operating authority application.

In this regard, we believe that, at a minimum, the prior history of a company which may have been previously incorporated but went out of business should be investigated at the time that an application for operating authority is submitted. Almost all of these prudent and reasonable actions were directed by Congress for rulemaking, but they continue to languish at FMCSA. If the agency would implement these rules, recognizing the need for strong oversight of new entrant carriers, both the safety and the security of motor carrier operators would be significantly improved.

The Quantities of Highway-Transported Hazardous Materials That Are Exempted from Federal Oversight are Far Too Large and Could be Used to Harm the United States

The Research and Special Programs Administration (RSPA), an administration within U.S. DOT, issued a final rule in January 1997 conforming most intrastate shipper and carrier hazardous materials transportation to the federal Hazardous Materials Regulations. This action was directed by Congress in the Hazardous Materials Uniform Transportation Safety Act of 1990. However, RSPA adopted broad exemptions in its final regulation to respond to concerns about the burdens of hazardous materials transportation compliance for intrastate agricultural interests, especially for farmers. We believe that these exemptions, whatever their merit when first adopted, need Congressional review to determine if they require modification.

In its final rule, RSPA provided extensive exemptions for agricultural motor carrier hazardous materials transport, including waivers of requirements for shipping papers, placarding, emergency telephone numbers, and hazardous materials training for motor vehicle transport of hazardous materials within 150 miles of a farm. Moreover, specific exemptions were also granted in the rule for intrastate-only transportation by farmers of maximum quantities of certain hazardous materials, including 16,094 pounds of ammonium nitrate fertilizer in bulk packaging, 502 gallons of certain liquids or gases, and 5,070 pounds of other kinds of agricultural products. Other exemptions were permitted for small quantities of what are often flammable fuels and gases, or toxic chemicals, as incidental “materials of trade” used in the course of daily business. RSPA also allowed non-specification cargo tanks and bulk packaging of certain weights to be exempted from federal requirements governing hazardous materials transport. RSPA also permitted, without restrictions, additional packaging exemptions to be enacted at the discretion of the states and issued a further notice delaying the effective date of compliance from July to October 1998 to facilitate state legislative action to enact such exemptions.

It is necessary to re-examine these exemptions from the hazardous materials transportation requirements, including the maximum permitted amounts of hazardous materials and “materials of trade” which both directly and indirectly can be used to inflict damage at specific targets in the U.S. Approximately 4,000 pounds of ammonium nitrate fertilizer was used to destroy the federal building in Oklahoma City, or only one-quarter the maximum amount that is currently exempted under RSPA regulation. Not only are these items susceptible to being used as weapons against people and institutions, but the data system at the state levels for documenting the purchase and movement of these hazardous materials by highway is exceedingly poor and unreliable.

As a side note, I might remind Members of the Committee that in 1998, agricultural interests and chemical manufacturers attempted to secure further exemptions from placarding on these products. But thanks to this Committee?s support of safety on the highway and of the lives of firefighters and police who battle hazmat spills, they did not succeed in winning larger loopholes than the ones discussed above.

Hazardous Materials Transportation Must Be Monitored Via Global Positioning System (GPS) Technology

We are convinced that regulators of hazardous materials transportation should require that hazardous materials carriage be limited to trucks equipped with Global Positioning System (GPS) technology, which permits real-time location tracking of hazardous materials loads. In addition, as mentioned above, for public safety and security, holders of CDLs with a hazardous materials endorsement should have biometric identifiers and be required to use computerized smart cards in order to access and operate vehicles carrying hazardous materials.

Better Routing Regulations For Non-Radioactive Hazardous Materials Are Needed

Current routing regulations for non-radioactive hazardous materials highway transport are too sketchy and inadequate. The federal requirements do not require states even to have highway routing criteria for non-radioactive hazardous materials, and continue to allow loads of hazardous materials to be transported on most roads and through major metropolitan areas across the nation regardless of population or traffic density.

Even worse, the burdens imposed on the states by the Federal Highway Administration to justify alternative, diversionary routes for public and environmental protection have a chilling effect on the willingness of state and local public authorities to tell carriers that haul hazardous materials to use longer, safer routes. Congress should place much higher safety requirements on the routing of hazardous materials transported by trucks and direct the states, pursuant to Congressionally directed federal regulations, to ensure uniform action throughout the nation, and to adopt safer alternate routings for certain kinds of hazardous materials that will lower the risks of spills or of terrorist actions which can adversely affect sensitive environmental areas and dense population centers.

The FMCSA has Failed to Implement a Congressionally Mandated Safety Fitness Permit System for the Transportation of Certain Hazardous Materials

The Hazardous Materials Uniform Transportation Safety Act of 1990 directed the Secretary of Transportation to adopt stronger federal motor carrier safety permit regulations for motor carriers transporting Class A or B explosives, liquefied natural gases, hazardous materials that are extremely toxic upon inhalation, or highway route-controlled radioactive materials in both intrastate and interstate commerce. Most importantly, the law allowed permits to be granted only on the basis of a carrier successfully completing a safety fitness finding for carrying these hazardous materials. A less than “Satisfactory” safety rating would automatically result in the denial of the permit application. Implementation of the permit program would also produce a reliable data bank of information on the operations of motor carriers transporting these specific hazardous materials.

The deadline for final regulations was November 16, 1991. A notice of proposed rulemaking was issued on June 17, 1993, but the FMCSA has since taken no further action. The topic is listed in the agency?s most recent semi-annual regulatory agenda (May 14, 2001) as “Next Action Undetermined.” This long overdue rulemaking needs to be completed expeditiously to ensure that a hazardous materials safety fitness requirement weeds out motor carriers that are unable to comply with the important federal requirements for safely transporting the specific hazardous materials specified in the 1990 legislation. Congress should re-examine whether the list of what are considered “high-risk” hazardous materials should be expanded to include other hazardous materials, especially those which might be used to threaten or harm Americans.

A National Uniform System of Permits for Hazardous Materials Carriers Is Urgently Needed to Enhance Safety and to Improve Reporting and Data Collection

The Hazardous Materials Transportation Uniform Safety Act of 1990 directs the Secretary to institute a nationally uniform system of permits necessary for motor carrier transport of hazardous materials. The date of the final regulation was linked by Congress to a report of a working group on what actions were needed to accomplish this. The group issued its recommendations two-and-one-half years late on March 15, 1996, more than five years ago.

Despite the fact that the report documents widespread defects in state permitting practices that directly affect the safety of, and availability of data on, hazardous materials movements by motor vehicle, two notices reviewing the report have been issued to date, in 1996 and in 1998, without any indication of the agency?s willingness to institute the uniform permitting system directed by law 11 years ago. No further action has been taken by the FMCSA to date. It is clear from an examination of the report that there is no reliable national database of information about the number of hazardous materials shipments, the quantity of what is transported, its nature, or its exact origins and destinations. State permitting practices do not currently keep complete, long-term records accurately tracking these and other facets of hazardous materials transportation.

The national uniform permitting system is long overdue for implementation by DOT. Congress should also consider the need to place more stringent data collection and retrieval requirements on intrastate-only highway transport of hazardous materials. As any continuing exemptions for certain quantities of specific materials also exempt them from data collection rules, the exemptions themselves must also be reevaluated.

This history is especially worrisome because the FMCSA paper application for motor carrier operating authority does not require motor carriers to demonstrate that they are knowledgeable about, and actually able to comply with, any U.S. hazardous materials regulations. At no point in the current application process for operating authority does a carrier have to attest that it intends to carry hazardous materials. If, subsequent to a grant of temporary operating authority, a carrier decides to transport hazardous materials, nothing in regulation compels a carrier to reveal that fact right away.

Moreover, there is no requirement that if the carrier, subsequent to a grant of operating authority, begins to carry hazardous materials, it must immediately return to notify the FMCSA to demonstrate its knowledge of the considerably more demanding requirements for doing so. This is a major safety and security shortcoming in the application process. Advocates and Public Citizen would like to point out that if a motor carrier registers with the RSPA to carry hazardous materials, as is currently required, the form is used only for the purpose of collecting federal hazardous materials transportation fees ? it does not ask for any demonstration by a carrier that it is knowledgeable about the requirements for, or is proficient in, the safe transport by highway of hazardous materials. In addition, this registration with the RSPA is not sent to the FMCSA.

This means that the FMCSA can become aware of a carrier?s decision to carry hazardous materials only when: (1) the carrier has one or more of its trucks undergo inspections; (2) the carrier undergoes a later safety compliance review which, for new entrants, can be up to 18 months following an initial award of operating authority; or, (3) the foreign carrier files an updated MCS-150 carrier census form every two years, a requirement only recently adopted by the FMCSA.

Even these minimal requirements are extremely limited in informative value. For example, the carrier?s updated MCS-150 acknowledging hazardous materials transportation on a census form only flags for the agency the bare-bones fact that the carrier now transports hazardous materials. This acknowledgement does nothing more than simply note a change in services. There is no requirement directing a carrier to, at any point, demonstrate its proficiency in, and knowledge of, the safety requirements for transporting hazardous materials.

It is therefore crucial that any motor carrier applying for U.S. operating authority attest to its intention to carry hazardous materials and demonstrate its proficiency in understanding and applying U.S. laws and regulations on packaging and transporting hazardous materials. In addition, any motor carrier deciding to transport hazardous materials after an initial award of temporary operating authority or a final award after the 18-month probationary period, must be required to re-apply immediately for a new award of operating authority for that purpose. If a carrier fails to make such an application and is found to be transporting hazardous materials without the specific operating authority to do so, its rights to operate should be immediately terminated for a specific period of time and it should be penalized. A renewed award of operating authority should be contingent upon satisfactory testing of a carrier?s proficiency in safely transporting hazardous materials and a full inspection of its facilities, equipment, drivers, and management practices for transporting legal hazardous materials according to U.S. law. These requirements should be made part of the completed rulemaking to implement the hazardous materials federal safety permit system originally directed by Congress in the Hazardous Materials Transportation Uniform Safety Act of 1990.

Data Systems Identifying Motor Carriers and Drivers at Both the State and Federal Levels are Unreliable and Incomplete

Congress recognized in both TEA-21 in 1998 and in its creation of the Motor Carrier Management Information System (MCMIS) that motor carrier data systems are incomplete and inadequately linked both among the states and between the states and the federal government. Timely, accurate information on motor carriers, including inspection results, out-of-service orders, and carrier and driver violations, either do not exist in many cases or cannot be retrieved quickly by one state?s officials from another state.

Congress should accelerate the program of data collection and analysis improvements by providing substantial additional funding. The advent of a central data repository with rapid access by both safety oversight and security authorities at all levels of government is crucial to protecting the welfare of the American people. Currently, the law calls for primary responsibility in setting up the state system of data collection and reporting, and communication of those data to the federal government, to be vested in the National Highway Traffic Safety Administration (NHTSA). Although NHTSA is very knowledgeable about the creation and operations of data systems, current resources at the agency and the amount of funding originally authorized will not enable rapid development and implementation of the data system. The provision presently has no timeline for putting the data system in place. Advocates and Public Citizen believe that a statutory deadline is necessary for getting the system up and running, and that the $5 million allocated each year is not sufficient for ensuring rapid acceleration and implementation.

BORDER COMMERCIAL TRANSPORTATION SAFETY AND SECURITY

Advocates and Public Citizen believe that U.S. cross-border motor carrier freight and passenger transportation must be subjected to a far higher level of intense, detailed security oversight to ensure U.S. domestic safety against potential terrorist threats. Implementing enhanced border safety and security oversight requires an on-site motor carrier fitness evaluation for each applicant. There is no bright line separating motor carrier security concerns from safety issues.

Motor Carrier Safety Fitness and Driver Checks Proposed in H.R. 2299 Should Also Apply to Mexico-Domiciled Carriers Operating Only Within the Border Zone

In light of the events on September 11th, the facts on record regarding cross-border trucking should receive reinvigorated attention. The primary focus of safety efforts on the cross-border trucking issue has thus far been to improve the safety of those Mexico-domiciled carriers applying for the category of operating authority that would allow them to go beyond the border zone and travel throughout the U.S.

There are, however, no barriers or fences which demarcate the border zone, and reports by the DOT Inspector General have documented that many vehicles have been stopped for safety inspections outside the border zones, in states as far away as Florida and Vermont, and found to be illegally operating in the interior of the U.S. despite the current law that restricts Mexico-domiciled carriers to operations within the border zones. The incentive to violate the border zone rules will doubtless increase once the distinction between carriers authorized to operate within the zone and those which may legally travel beyond it is augmented by the proposed rules for nationwide cross-border trucking. The temptation to flout these rules, and the vulnerability of the U.S. to unauthorized and largely unregulated carriers should be deemed too great to permit major exemptions from oversight for even those carriers that apply for the type of operating authority that is limited to the border zone.

It is crucially important that the pending Murray-Shelby provisions in H.R. 2299, requiring more rigorous motor carrier safety evaluations for Mexico-domiciled carriers, be enacted into law as soon as possible. The Murray-Shelby provisions provide for full safety reviews performed on-site for all Mexico-domiciled carriers applying to operate beyond the border commercial zones, with a required finding of “satisfactory” before conditional authority is granted and again before granting permanent authority. This avoids the pitfalls of the current FMCSA proposed rules which allow only paper applications to determine whether a Mexico-domiciled motor carrier is granted conditional operating authority, without any actual on-site safety evaluation.

However, this section as well as others in the bill apply a number of important safety requirements with security implications only to those Mexico-domiciled carriers that apply for operating authority beyond the current commercial zones. Without on-site safety reviews for all Mexico-domiciled carriers applying to operate within the U.S., it is impossible for safety and security authorities to ascertain whether a particular Mexico-domiciled carrier is capable of meeting U.S. safety regulations and other U.S. laws. For example, another section of the Murray-Shelby provisions requires electronic verification of every Mexico-domiciled motor carrier driver?s license status and validity at border crossing points, but only for carriers operating beyond the border zone. Congress should extend this policy and practice to cover all foreign drivers of all Mexico-domiciled carriers crossing into the U.S.

Additionally, much more careful coordination and verification of licensure is needed with the government of Mexico to validate a driver?s Licencia Federal de Conductor before a driver attempts to cross into the U.S. Advocates and Public Citizen are concerned with drivers presenting at border checkpoints fraudulent Mexican licenses that have been forged or exchanged. The U.S. should also work with the Mexican government to adopt for Mexican licenses an unambiguous driver identifier, such as a biometric identifier, to ensure license validity and non-exchangeability. In addition, insurance coverage should be verified at the border.

There are other examples of requirements in the Senate-passed DOT Appropriations bill dealing with motor carrier inspection and driver checks that Congress may want to consider extending to Mexico-domiciled carriers operating only within the border zone. These include the Commercial Vehicle Safety Alliance (CVSA) decal and the requirement for a distinctive registration number for each Mexican motor carrier. Right now, these provisions apply only to those Mexico-domiciled carriers that will operate outside the border zone.

As With Domestic Carriers, Enforcement of Hazardous Materials Rules As to Foreign Motor Carriers Is Poor and Oversight By Federal Authorities Must Be Strengthened

Strengthened safety and security measures are especially imperative in the area of hazardous materials transportation across both our northern and southern borders. Unfortunately, we have systemic weaknesses in our oversight and control of hazardous materials movements across our borders.

It has been well-documented for many years that Mexico-domiciled motor carriers chronically fail to adhere to U.S. hazardous materials transportation regulations with regard to proper containerization, rules which require shipping papers to accurately portray the materials being hauled, and the correct display of required placards. Also, Mexico-domiciled carriers repeatedly attempt to transport hazardous materials that cannot be brought into the U.S. by truck or cannot be legally disposed of here. According to information from the Commercial Vehicle Safety Alliance, the FMCSA, and the U.S. General Accounting Office, past inspections at the U.S. southern border have shown that the overwhelming majority of Mexico-domiciled carriers are not complying with Environmental Protection Agency, RSPA, and FMCSA requirements for transportation of approved hazardous materials in the border zone. This record is particularly shocking given that any hazardous materials carriers which appear to have proper shipping papers and placards are often waved through border check points without inspectors actually verifying that the materials on board match shipping papers or external placards, or that there are not other, illegal hazardous materials or contraband being transported.

This history of widespread violations is a matter for concern because the proposed FMCSA paper application for Mexico-domiciled motor carriers contains the same loophole as federal rules for domestic carriers: it fails to require carriers to demonstrate that they are knowledgeable about and able to comply with U.S. hazardous materials regulations. At no point in the proposed application process does a Mexico-domiciled carrier have to attest that it intends to carry hazardous materials. If, subsequent to a grant of temporary operating authority, a carrier decides to transport hazardous materials, nothing in the regulation regarding Mexico-domiciled carriers compels the carrier to reveal that fact immediately.

It is therefore crucial that at the initial point of contact with a Mexico-domiciled motor carrier applying for U.S. operating authority (i.e., the preliminary on-site safety evaluation called for in the Murray-Shelby provisions in H.R. 2299), each applicant carrier attest to its intention to carry hazardous materials and demonstrate its proficiency in understanding and applying U.S. laws and regulations for packaging and transporting hazardous materials. In addition, any motor carrier deciding to transport hazardous materials after an initial award of temporary operating authority or a final award after the 18-month probationary period should be required to re-apply immediately for a new award of operating authority for that purpose.

Mexico and Canada Must Share Inspection and Security Oversight Responsibilities with the U.S.

It is clear that most of the security oversight apparatus that needs to be implemented at our borders, including personnel, procedures, and facilities, naturally interface with motor carrier safety oversight actions. Both facilities and personnel can share certain surveillance and safety oversight responsibilities that often will simultaneously provide both security risk appraisal and safety evaluation of motor carrier cross-border traffic.

This points out the dire need for the rapid construction and operation of fixed inspection stations at every U.S. border crossing point, both in Mexico and in Canada as well, in order to conduct full inspections and detailed security checks. Also, it is obvious that the criticism by both the U.S. Department of Transportation Office of the Inspector General and the U.S. General Accounting Office regarding the lack of motor carrier inspectors on-duty at most border crossing points during all hours of operation must be met with quick action to ensure that no truck or bus crosses the border without being inspected both by Customs officials and motor carrier safety inspectors.

I also would like to emphasize here that the task of simultaneously improving both safety and security at our borders cannot be a unilateral task undertaken only by the U.S. Those foreign governments that share a border with the U.S. should dramatically strengthen their systems of validating their domestic motor carriers and commercial drivers, both to guarantee their safety fitness and to ensure that freight and drivers that are found to be security risks are not granted permission to conduct motor carrier operations. To date, the government of Mexico, in particular, has chronically failed to hold up its end of the bargain, as it still lacks even a reasonably stringent safety approval and monitoring regime for commercial vehicles.

As President of Public Citizen, let me next briefly address an issue of specific concern to our organization.

The Dangers of Nuclear Waste Transportation Must be Addressed

On September 12, Energy Secretary Abraham suspended Department of Energy (DOE) shipments of military nuclear materials, acknowledging that shipments of radiological materials are potential terrorist targets.

If the proposal for a geologic repository at Yucca Mountain, Nevada, moves forward, a large number of commercial nuclear waste shipments will take place over a period of approximately the next 30 years, constituting the largest nuclear waste transportation project in history. These shipments would number between 30,000 and 100,000, depending on whether the mode of transportation is road or rail. Because a rail line to the site from the nearest commercial rail line does not exist and the cost of building it would be approximately $1 billion, it is likely that the many casks of nuclear waste will travel by highway, necessitating the larger number of shipments. Although the Department of Energy (DOE) has not calculated the exact transportation routes or means of shipping, studies by the state of Nevada and the DOE disclose that as many as 45 states could be directly impacted.

A report by DOE showed that 109 communities with populations over 100,000 would be affected by the shipments, increasing the threat of a terrorist attack in an urban setting. Also, as part of the 1986 Environmental Assessment for the Yucca Mountain repository site, the DOE conducted a study that found that a train accident in a rural area involving a high-speed impact would be devastating. They calculate that it would produce a difficult-to-fight fire involving fuel oxidation that would contaminate a 42-square-mile area, require 462 days to clean up and cost $620 million. Other research by Dr. Marvin Resnikoff of Radioactive Waste Management Associates in New York concluded that, based on government accident scenario analyses, the economic costs of a clean-up are in the range of $145-271 billion for a rail cask and $20-36.6 billion for a truck cask.

In reality, because the transportation casks have never had full-scale testing, no one knows the true consequences of an accident or attack. The Nuclear Regulatory Commission (NRC) sponsored a study in 1987 by the Lawrence Livermore National Laboratories. This study, commonly referred to as the “Modal Study,” used computer modeling to predict cask responses to accident conditions. However, the study was inadequate and the conditions that were used in the computer analysis did not represent real-life scenarios.

The NRC is planning to update the 1987 spent fuel transportation study. This study should be required to fully explore the risks associated with different types of potential attacks, including high-impact accidents involving various types of fuel. As the state of Nevada told the NRC in 1998, “It is imperative that the Commission factor into its regulations the changing nature of threats posed by domestic terrorists, the increased availability of advanced weaponry and the greater vulnerability of larger shipping casks traveling across the country.”

In March 2000, the NRC released a study prepared by Sandia National Laboratory, “Reexamination of Spent Fuel Shipment Risk Estimates,” that updates the baseline 1977 study on radioactive material transports. The report is very optimistic about the risk for nuclear accidents and says that the older study overstates the potential risk. However, the new report does not even discuss risks associated with some type of terrorist attack on a nuclear shipment and it underestimates accident probability and consequences. Sandia also prepared this report without permitting stakeholder comments on the draft. In short, to assure the safety and security of the public Congress should instruct the DOE and the NRC to take account of all potential risks and their full consequences in evaluating and regulating the transport of nuclear waste.

THE IMPACT ON FIREFIGHTERS AND POLICE OF MOTOR CARRIER SAFETY AND SECURITY DEFICIENCIES

Finally, Mr. Chairman, we want to say a word about the firefighters and police who must deal with safety and security problems. The world now knows the enormous sacrifice these brave individuals make when disasters occur. What the public may not know is that this kind of personal sacrifice occurs every day all over the United States in communities both large and small.

The cost and burden on our state and local officials to respond to emergencies involving individuals intent on causing harm or with access to hazardous materials must be considered as the Congress and DOT make decisions about what precautions to require in granting operating authority in the United States and at the border, in driver licensing, in hazardous materials permitting, and in the imposition of penalties to deter future misbehavior. Often times these rescue workers, many of whom are volunteers, do not receive adequate training to cope with these very serious sorts of emergencies. Moreover, many of the departments are understaffed and lack adequate equipment for coping with a crash involving hazardous materials. Finally, they are put at greater peril when the vehicles they are dealing with have not been properly placarded or designed, or are not placarded at all.

If we take the obvious precautions to prevent the problems under discussion today, our firefighters and police will be exposed to far less unnecessary risk, as of course will the public. Often when these risks occur one by one across the country and not in one massive tragedy, they escape public and press attention and, unfortunately, without a spotlight, the government has failed to be the federal cop on the regulatory beat and to fully enforce or uphold Congressional mandates.

As you consider your responsibility to prevent future tragedies, we urge you to remember that 5,300 Americans are killed each year by large trucks on our highways. We need these long-overdue safety and security measures to prevent unnecessary death and injury due to truck crashes or to terrorist action.

The cornerstone of any system of oversight is a truly effective regulatory agency. As this testimony shows, the FMCSA and its predecessor in the FHWA have left many stones unturned, and many rules incomplete. We urge the Congress to look very closely at this agency, to question its leadership aggressively, to seek frequent GAO and IG reviews, and to conduct repeated oversight hearings regarding the unfinished business of assuring the nation?s safety and security in the face of a coordinated attack by evildoers who might exploit these loopholes and failures to injure or kill many innocent American citizens. The FMCSA?s assigned statutory mission clearly spelled out the intent of Congress two years ago: safety is the agency?s “highest priority.” Vital public safety and security interests are at stake, and action on these crucial items I have mentioned today is imperative for Congress and the federal agencies.

That completes my testimony. I am prepared to respond to any questions that you or other members of the subcommittee may have.

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