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EFFECTS OF THE FISCAL YEAR 2000 DEPARTMENT OF TRANSPORTATION APPROPRIATIONS ACT ON MOTOR CARRIER SAFETY ENFORCEMENT
Thursday, October 7, 1999
House of Representatives, Subcommittee on Ground Transportation,
Committee on Transportation and Infrastructure, Washington, D.C.
The subcommittee met, pursuant to call, at 10:00 a.m., in Room 2167, Rayburn House Office Building, Hon. Thomas E. Petri [chairman of the subcommittee] Presiding.
Mr. PETRI. The subcommittee will come to order.
We are meeting today to review the possible effect of the pending Transportation Appropriations Act on motor carrier safety enforcement by the United States Department of Transportation.
The Transportation Appropriations Act was passed by the House of Representatives early last Friday morning and by the Senate on Monday afternoon. It is now awaiting signature by the President. The Appropriations Act contains a provision prohibiting the Federal Highway Administration from continuing to carry out the Federal Motor Carrier Safety Program.
The intent of this provision is to force a transfer of the Office of Motor Carriers out of the Federal Highway Administration. The provision, however, does not transfer all of the legal authorities required by the Office of Motor Carriers to enforce Federal truck safety regulations.
In effect, it leaves some of these authorities stranded within the FHWA and prevents them from being carried out by any entity within the Department of Transportation.
Today we will hear from the Department on how this provision will be implemented and how it will impact their ability to ensure that our highways are safe.
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Improving motor carrier safety has been a longstanding priority of this committee.
Last year the House Appropriations Committee attempted to strip the Federal Highway Administration of its motor carrier safety authority. As the authorizing committee with jurisdiction over motor carrier safety, we opposed their proposal since it had never been considered by the authorizing committees of the House or the Senate.
Ultimately, the provision was dropped and we pledged that we would work very carefully on the issue of motor carriers safety.
We have kept our word. We held comprehensive hearings and have produced a solid bill that will be considered by the House in the future. Unfortunately, this rash action by the Appropriations Committee appears to actually reduce safety, at least in the short term.
Finally, I want to take this opportunity to thank the Department of Transportation for testifying on such short notice today. And with that, I would yield to the Chairman of the full committee, the honorable Bud Shuster for any statement he would care to make.
Mr. SHUSTER. Thank you very much, Mr. Chairman, and we certainly appreciate you bringing this up in this timely fashion, because indeed it is an emergency. It is a serious problem. And we have got to deal with it. It is unfortunate that the transportation appropriations bill was filed late last Thursday night without our ever having a chance to see it, because we might have been able to be helpful had we been able to read it to point out the changes that should be made.
And then of course Friday morning, the schedule for legislation on Friday showed that the agricultural appropriations bill would be up first, and the transportation appropriations bill would be up second. So, of course, we believed in the schedule. However at 9:03 a.m. On Friday morning, suddenly the transportation appropriations bill was brought to the floor without any of us being there. At 9:07, the rule was passed by voice vote. At 9:15, the debate was shut off because there was nobody there to debate, and the vote commenced.
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And even though we had been admonished repeatedly in writing that votes would not be extended beyond 17 minutes, the vote had to be held open for over 40 minutes because Members simply couldn't get there and, indeed, when the vote finally concluded, over 10 percent of the Members still missed the vote because they had been caught unawares and were not able to be there to vote.
So we regret very much the way this was handled, and this is a pretty clear example of the kind of serious snafu that can occur when legislation is moved in this manner. But that is water over the dam. Our interest is in getting this fixed and getting it fixed as quickly as possible, because it is very, very serious.
According to the Department, ''this provision would effectively shut down our safety enforcement program.'' senator McCain has expressed his deep concern. In fact, on the floor last Monday he said that he ''urged the President to veto this legislation due to this unwise and unsound provision and to permit the authorization process to proceed responsibly,'' end of quote. I certainly associate myself with Senator McCain's statements.
Can this transfer of the Office of Motor Carriers occur by the time the bill is signed by the President? How much will this cost, and how disruptive would such a quick transfer be? What are the legal ramifications of the provisions? How hamstrung will the Department be in carrying out its safety duties?
I am afraid we are going to discover that this provision should not have been included at all and can only be fixed by repealing it.
Over 5,000 people are killed on our highways annually in truck-related accidents and indeed if as a result of this erroneous language, this legislating language in an appropriations bill means that we are not going to be able to enforce motor carrier safety on our highways, indeed it is a shameful situation. And our objective here today is to find out how we can fix it so we can continue to have safe highways and safe trucks and safe vehicles on America's highways.
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And thank you very much.
Mr. PETRI. Thank you, Mr. Chairman.
Mr. Rahall.
Mr. RAHALL. Thank you, Mr. Chairman. To Speaker Shuster, I mean Chairman Shuster —.
Mr. SHUSTER. Would the gentleman yield?
Mr. RAHALL. I would be glad to yield.
Mr. SHUSTER. I thank the gentleman. I did indeed note the Gannett story and the story in Roll Call today, and I would like to say that the person who dreamed that up is even a better fiction writer than I am.
Mr. RAHALL. Well, for one year only, the title doesn't sound that bad.
I do agree with the remarks of the Chairman and certainly both Chairmen, by the way. While this may be water over the dam as our distinguished Chairman has referred to, from our perspective, there is a lot more water behind that dam, and I think we have got to ensure that this doesn't happen again.
The sad fact of the matter is that due to the refusal of this Republican leadership to protect this committee's jurisdiction, if the transportation bill is signed into law, the lives of the driving public will be placed in serious jeopardy. The lives of the driving public will be placed in serious jeopardy because of the actions of the Republican leadership of this body.
Indeed, despite the objections of this committee, the appropriations bill recently passed prohibits FHWA from carrying out its motor carrier safety functions. Now, they may respond while the Secretary may administratively transfer these responsibilities to another entity within the Department, the fact of the matter is that Federal law vests certain important and vital enforcement functions solely with the FHWA administrator,with the exception of the authority to issue out-of service-orders for vehicles that pose an imminent public hazard safety.
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This situation apparently escaped the attention of the appropriators due to their own personal agendas and narrow scopes of vision and it gives rise today to the crisis in the highway safety that we will soon face.
Let us look at the facts. Fact number one, under the appropriations bill, the Federal Government will have no authority to assess civil penalties for violations of motor carrier safety regulations. Fact number two, under the appropriations bill, the Federal Government will have no authority to bring a civil action in court to enforce the motor carrier safety regulations. Fact number three, under the appropriations bill, the Federal Government will have no authority to protect migrant workers from suffering abusive conditions while being transported.
Ironically, under some misguided notion of trying to promote truck safety, the appropriations bill instead effectively guts the Federal Motor Carrier Safety Program, all under the blessing of the Republican leadership of this body. As Julie Cirillo said, and she is with us here today, the OMC Program Director noted in an e-mail that she sent to all her employees Monday night, and I quote, ''Our inability to carry out any enforcement actions is the result of legislation that assigns this responsibility specifically to the Federal Highway Administrator, and since the appropriations bill prohibits the FHWA from spending any funds on motor carrier programs, this function will not be carried out by any entity.''.
Let me repeat that quote: ''this function will not be carried out by any entity.''.
Mr. Chairman, what the appropriations bill did is akin to sending police out on the streets of a major city, unarmed, without the authority to make arrests, without the authority to write traffic violations, and without the authority to enforce public safety.
There is a lesson here, if any in this Republican leadership care to even take note of it: When you trample on the rights and jurisdiction of authorizing committees by slipping ill-conceived riders into appropriations bills in the dead of night, real harm can come to the American people. Real harm can come to the American people by the actions of the leadership of this body.
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The purpose of this hearing today is to try to sort out this mess. The committee has reported in a responsible fashion motor carrier safety legislation, and is working to bring it to the House floor. However, similar legislation must still be considered by the other body, and it is obvious under the normal legislative process, enactment could not come in time to avert the crisis created by one paragraph, a rider slipped into the legislative process and slipped into the appropriations bills by the Republican leadership of this body.
I hope we can sort this mess out in time to save lives, Mr. Chairman. Thank you.
Mr. PETRI. Thank you. Mr. Oberstar.
Mr. OBERSTAR. Thank you very much, Mr. Chairman. I want to express my great appreciation to you and especially to Chairman Shuster for recognizing the seriousness of this challenge to motor carrier safety, and secondarily, in some cases, maybe even primarily, to the authority of the Committee on Transportation and Infrastructure, our jurisdiction, and the evident expertise and knowledge that our committee staff and members have on these issues.
Yes, Mr. Chairman, it is in a sense water over the dam, but the experience of last Friday underscores the vital importance of debate, which is the essence of the democratic process. And by stifling, shutting off debate, by rushing that bill, not even having the courtesy to let this committee know that there would be a change in the schedule, Members were not present at the very outset. That traditional hour of debate that is accorded in conference reports, would have given you, Mr. Chairman, Mr. Shuster, Mr. Petri, Mr. Rahall, and myself the opportunity to highlight the flaws in that appropriations bill, one of which, the most serious of which we address today.
And the concern that we have is section 338 of the conference report which prohibits the Federal Highway Administration from spending any funds to carry out motor carrier safety programs. This language would require an immediate reorganization, since motor carrier safety is now regulated by the Office of Motor Carriers, which is part of Federal Highway Administration.
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The flaw first came to light late Thursday night, and as Mr. Rahall said, literally in the dead of night. Even Paul Revere rode at a later hour than they considered this language. Since that point, the Department and others have expressed really serious concerns about whether section 338 will impair the ability of the Department to carry out its motor carrier responsibilities.
The purpose of this hearing is to highlight those concerns, to explore them, explore the extent, the magnitude, and then to see if there are ways to assure that there will be no weakening of the motor carrier safety program either during the time this is in effect or by making prompt legislative changes in a subsequent appropriations bill or by a Presidential veto if that becomes necessary.
Why are we concerned? The number of people killed and injured in large truck accidents has increased in recent years. Since 1992 the number of fatalities from crashes involving large trucks has increased 20 percent to 5,374 in 1998. Unless the motor carrier safety program is significantly improved, there will be more deaths, more injuries and more agony.
To strengthen motor carrier safety, this committee did not sit on the sidelines, twiddle its thumbs, and wring its hands in anguish. To the credit of the committee, hearings were held on the subject, new legislation was crafted and a bill reported from subcommittee and full committee to establish a new Motor Carrier Administration, in which we direct this new administration to consider the assignment and maintenance of safety as its highest priority.
Not waiting for legislative authority, the Department has moved ahead and the Secretary, to Mr. Slater's great credit, has acted to enhance the effectiveness of motor carriers and has vigorously moved forward on the safety initiatives. So we need to make sure that there are no interim legal changes such as this omnibus language in section 338 that will impair the ability of the Department to act appropriately.
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Two major concerns. First, since section 338 is effective upon enactment, the question arises: Which organizational changes will be required? Can they be accomplished immediately? And can they be done so as to avoid disruption of the safety program? Major issue.
And then three subsets of the questions to answer: What plans does the Department have for transferring motor carrier safety in consequence of this provision? Can it be accomplished in time to assure continuity of motor carrier safety operations? What plans are there within the administration, that is, OMB, White House, DOT, to avoid layoffs, to avoid a shutdown of government, motor carrier safety operations?
The Appropriations Committee may through this—whether it is inadvertent or deliberate, I do not know, the language will in fact, unless this question is answered satisfactorily—have on its shoulders the responsibility of a government shutdown.
A second major concern is whether section 338 will prevent the Department from carrying out motor carrier responsibilities by law that only can be done by the Federal Highway Administration. A reading of this section can come to the conclusion that since under governing law, FHWA has authority to impose civil penalties, and since section 338 prohibits Federal highways from spending money to carry out motor carrier safety programs, it would appear to me, from a nonlawyer but long legislative language experience, once 338 takes effect no one will have authority to initiate new civil penalty cases or continue existing cases.
If you are a strict constructionist and some interest outside of government wants to challenge this in court and carry it to its logical conclusion, it seems to me that its logical conclusion is that no penalties could ever be imposed for violations that took place while section 338 is in effect, even if it is fixed at a later time.
So we need to explore those questions. Does the Department agree that civil penalties cannot be imposed? Can you compel compliance with safety regulations? Will Federal compliance reviews be continued? Will they be dropped in consequence of this language? How can you guard against egregious violations of the hours of service and commercial drivers' license regulations without having the civil penalty authority to do so?
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Those are the principal questions I hope to be answered and questions that sadly were made necessary by this inappropriate, uninformed, ill-advised language and other appropriate adjectives by the appropriations bill.
Thank you, Mr. Chairman.
Mr. PETRI. Thank you. Mr. Horn.
Mr. HORN. Thank you, Mr. Chairman. I agree with what both the Chairman of the full committee and the Ranking Member have said. And as one who roams the floor to see what kind of paper is passed out on each side of the aisle, I noted when the transportation bill came in that my Democratic friends had a wonderful little stack describing everything that was in the bill in terms of projects.
I want to say you helped inform us, because we had no information on what was in the bill, and I commend you on your floor operation out of appropriations. It will keep in the Horn library.
Mr. PETRI. Are there any other opening statements?
Mr. MASCARA. Thank you, Mr. Chairman, I have no opening statement. But I want to associate myself with the remarks of the Ranking Member of the full committee and the Ranking Member of the subcommittee and associate myself with those remarks. Thank you.
Mr. PETRI. Thank you.
Well, now we will proceed to our witness, and we want to thank you, the Honorable Nancy McFadden, the General Counsel of U.S. Department of Transportation, for being here with us this morning. She is accompanied by a familiar presence at the witness table, Peter J. Basso, Assistant Secretary for Budget and Programs and Chief Financial Officer of the Department of Transportation. We welcome both.
And, Ms. McFadden.
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TESTIMONY OF NANCY E. McFADDEN, GENERAL COUNSEL, U.S. DEPARTMENT OF TRANSPORTATION, ACCOMPANIED BY PETER J . BASSO, ASSISTANT SECRETARY FOR BUDGET AND PROGRAMS, AND CHIEF FINANCIAL OFFICER, U.S. DEPARTMENT OF TRANSPORTATION
Ms. MCFADDEN. Thank you, Mr. Chairman, and Mr. Chairman, Ranking Member, Ranking Member and members of the subcommittee, we are pleased to be here. And I am always pleased to have my esteemed colleague, Mr. Basso, sitting at my side.
We appreciate having the opportunity to be here today to address the potential effects of section 338 of our appropriations bill on the functions and operations carried out by the Federal Highway Administration's Office of Motor Carrier and Highway Safety.
Let me first emphasize, as we always do, and something you are well aware of, is our Secretary's unwavering commitment to transportation safety. And let me assure you that we will do everything possible to implement this statutory directive in a manner that maximizes our highway safety efforts. The dedicated high-quality staff of the Motor Carrier Office is also fully committed to carrying out the motor carrier statutes to achieve the highest levels of highway safety.
We do applaud actions of this committee and the Congress for your focus on motor carrier safety and specifically for increasing the levels of fines that may be imposed under our motor carrier safety authority as part of TEA-21. A number of recent reviews and studies conducted by this committee and others make clear that motor carrier enforcement needs to be strengthened, and as you know, we are taking steps to do so, as are you.
But our current safety enforcement efforts would be hampered by section 338 in its current form. Section 338, as the lawyers and the nonlawyers among you have actually aptly described, prohibits the Federal Highway Administration from expending any funds for the functions and operation of the Motor Carrier Office. These OMC functions may continue only if the Secretary moves them by delegation from Federal Highways to elsewhere in the Department. And the Secretary has the authority to transfer most of the OMC functions, except for those found in chapters 5 and 315 of title 49, these nondelegable functions, which as Mr. Oberstar very well described can only be carried out by Federal Highways by virtue of another statutory provision. And the only exception is when a motor carrier or driver is to be taken out of service because of an intimate hazard. Section 338 does expressly permit the Secretary to delegate this authority within the Department.
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Now, upon signature by the President of the appropriations act, section 338 would take effect immediately, as a number of you have noted. We are preparing for an orderly transfer of motor carrier duties, funding and staff to another location in the Department at that time, to the extent that the duties can be transferred.
The Department is preparing a delegation of authority to be signed and made effective as soon as the DOT Appropriations Act becomes law. We are currently reviewing a number of options for placement of these activities within the Department. The Secretary has yet to make a decision but will be doing so shortly. But whatever organizational choice is made, we will advise Federal Highway employees who currently fill positions in the Office of Motor Carriers that they will continue to fill those same positions when the office transfers out of Federal Highways. Employees will be notified of the organizational change as soon as section 338 becomes law, and advise that they are going to continue to perform the duties of their positions with certain exceptions.
Now let me turn to the issue of what functions the Department will or will not be able to perform when section 338 becomes law. The Department will continue to be able to issue rules, conduct reviews, provide public information and generally operate programs relating to motor carrier safety, such as drivers' hours of service, driver qualifications, drug and alcohol testing, vehicle inspection, maintenance and repair.
We will continue to be able to conduct safety compliance reviews of bus and trucking companies and will continue to be able to assign them safety ratings. We will be able to continue to conduct border inspections to determine whether Mexican carriers have authority and insurance to enter the United States.
We will be able to continue to perform investigations and take enforcement action with respect to hazardous materials regulations and statutes. In addition, as also has been noted, section 338 does specifically allow for the redelegation of certain authority which means that the Secretary may put drivers, vehicles, and motor carriers which pose an imminent hazard to safety out of service.
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Now, in terms of those things that we will not be able to do, OMC employees will not be authorized, nor will other employees in the Department be authorized to conduct certain activities pursuant to provision 104(c)(2) of title 49, and this provision provides that only the Federal Highway Administrator is authorized to carry out duties related to motor carrier safety found in both chapters 5 and 315 of title 49.
Now the crux of the matter is what you have identified. The most significant of these duties which we will be precluded from carrying out is the authority to assess civil penalties for violations of the motor carrier safety regulations. This means that with the one exception for out-of-service authority to deal with imminent hazard, the motor carrier group will be limited to investigating a carrier's compliance status but will not be able to pursue a violation by initiating a civil penalty action or seeking an injunction.
The OMC employees would also not be able to work with the U.S. Attorneys' Offices in pursuing civil or criminal enforcement in court. Essentially we would not be able to force a carrier to comply with Federal law and regulation.
In addition as has been pointed out, in addition to this enforcement issue, another area that cannot be delegated and which we would be precluded from carrying out addresses the regulation of carriage of migrant workers in interstate commerce.
Now, given the potential for these consequences, we want to assure you that we are committed to making the best use of available authorities. We will work with our State partners who now carry out most road sites inspections with Federal funding and share the fruits of our investigations with them for use in their enforcement. And we will, of course, continue to assign and publish carrier safety ratings and make them public because those determinations do influence carriers to come into compliance.
As a legal and logistical matter, we are prepared to and will be able to effect an orderly transfer. We are confident with our dedicated OMC staff that we can execute the contemplated transfer without major disruption. But despite these preparations, we will not have all the tools needed to force compliance by recalcitrant entities.
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Some important enforcement tools will become unavailable by operation of section 338. We are confident, however, that this should be and can be easily corrected. We, of course, look forward to continuing our work with this committee to improve safety on our Nation's highways.
We are, of course, happy to answer any questions that you have. That concludes my oral statement and we submitted a written statement for the record, Mr. Chairman. Thank you.
Mr. PETRI. Thank you. And it will be made a part of the record.
Questions. Mr. Rahall?
Mr. RAHALL. Thank you, Mr. Chairman. We are not going to hear from Jack?
Mr. PETRI. Did you have anything to add? There wasn't one in the file.
Mr. RAHALL. Okay. Thank you very much for your testimony, Nancy. And let me ask you first about the compliance reviews. You have been very good in listing what you will be able to do and what you will be not be able to do anymore under the appropriation language. So I guess I am linking the two together here.
If the Department will not be able to address civil penalties, will not be able assess civil penalties for safety violations, yet you will be able to conduct the compliance reviews, what would be the purpose of conducting the compliance reviews then?
Ms. MCFADDEN. I think the basic purpose would be for the safety fitness rating, but without the ability to pursue enforcement action, those kinds of violations that we find in the compliance review, we really won't have any authority to be able to do much about that.
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Mr. RAHALL. So the inability to assess civil penalties is a major hindrance to enforcement?
Ms. MCFADDEN. We believe so, yes, Mr. Rahall.
Mr. RAHALL. Okay. It is my understanding that the motor carrier transportation of migrant workers is not replicated anywhere other than chapter 315. If this is the case, could you elaborate on what effect will the appropriations rider have on the Department's ability to safeguard migrant workers?
Ms. MCFADDEN. Yes. We do think that this is—this is another area that has consequences in terms of us not being able to do something; although in my discussions with the motor carrier staff, for the most part, migrant worker transportation is not interstate, it intrastate, and the States cover that. So while it is an important thing that is being taken away from us in terms of its impact on the Nation and in terms of migrant workers, luckily the States have most responsibility for it, but nonetheless it will preclude us from being able to enforce violations of regulations with respect to abusive conditions or conditions of safety with respect to migrant worker transportation.
Mr. RAHALL. Let me ask you about border inspections. I am still not clear what effect this language in this appropriation bill has on border inspections. Would they be affected?
Ms. MCFADDEN. We believe that with this language we will still be able to continue border inspections, and in fact if there is an egregious violation that is found during the border inspections, that we would be able to put the vehicle out of service. So border inspections we believe can continue.
Mr. RAHALL. With enforcement?
Ms. MCFADDEN. Yes.
Mr. RAHALL. Okay. Your testimony noted that essentially the Department would not be able to force a carrier to comply with Federal law and regulation. This was the main point of Julie's e-mail to her employees as well. And for a lack of a better term, does not this appropriations rider turn the Department of Transportation into a paper tiger in terms of motor carrier safety enforcement?
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Ms. MCFADDEN. Well, Congressman—.
Mr. RAHALL. You went further in your testimony. You said you do not have all the tools necessary to take action against recalcitrant actors, I believe was your paraphrasing now.
Ms. MCFADDEN. Yes.
Mr. RAHALL. I mean, they are the ones that are the trouble, are they not, in causing loss of life?
Ms. MCFADDEN. You are absolutely right. And I think we do believe that our enforcement efforts would be severely hampered by this restriction.
Mr. RAHALL. Okay. Well, pending the enactment of additional legislation in this interim period in which we find ourselves, where are you contemplating locating motor carrier safety responsibilities?
Ms. MCFADDEN. There are a number of different options, and as I indicated, we are reviewing those. The Secretary hasn't yet. He has been working on FAA reauthorization in the other body and hasn't yet had a chance to make a decision. There are a couple of options. One is to put it in another administration. Another is to have it be a freestanding entity or to put it in the Office of the Secretary.
And I think those are the three basic—the basic organizational options. But as our testimony indicated, we—those are organizational changes, and we see the same staff maintaining the same functions and the same positions for the most part, except for the restrictions that we have been discussing here today.
Mr. RAHALL. Okay, thank you. Thank you, Mr. Chairman. I have no further questions.
Mr. PETRI. Thank you. Any questions on this side? Mr. Horn?
Mr. HORN. No.
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Mr. PETRI. Mr. Moran.
Mr. MORAN. No.
Mr. PETRI. Mr. Terry.
Mr. TERRY. No.
Mr. PETRI. Let's see; Mr. Oberstar.
Mr. OBERSTAR. Well, it seems to me the soul of this issue are the limitations on the ability to conduct enforcement actions, and it looks to me like the Department is handcuffed.
What is this language, ''imminent hazard''? Section 338 allows for redelegation of authority, which means that the Secretary may put drivers, vehicles and motor carriers which impose an imminent hazard to safety ''out of service.'' this is one of the least used authorities in the Office of Motor Carriers, because the threshold burden of proof is so high.
The burden of proof is on the inspector, on the Office of Motor Carriers and on the Department to show that there is a greater than 50 percent likelihood that this vehicle or this driver poses a hazard to safety. That is a very high threshold of proof. And we know from experience that there are some lawyers who specialize in hustling across the country to defend trucking companies that are in imminent danger of posing an imminent hazard.
And it just seems to me that the authority that you have—that resides to defend safety--is so narrow that the Department is literally handcuffed in its ability to carry out its safety function.
Ms. MCFADDEN. Well, I think your description with respect to the imminent hazard exception is exactly right, Congressman. It is a high threshold, it is one that we are actually working to redefine to make more effective. We hope and believe that the handcuff of not having enforcement authority is, if it comes into being at all, is a temporary situation.
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Mr. OBERSTAR. You have testified that the Department cannot impose civil penalties or continue civil penalty enforcement actions under section 338, no matter how serious, how egregious the violation.
What is the role of civil penalty authority in the Department's enforcement efforts? I understand what it is in aviation, how important that is, but tell us how that authority is used, how significant it is, so the public can better understand this authority.
Ms. MCFADDEN. I think that a number of you have pointed to the important tool that having enforcement authority is, and that is when you find a violation, if you have got no way to put teeth behind saying you have got to fix this violation, we are hamstrung. The Office of Motor Carrier staff have given me some figures. In 1998, we conducted about 45-, 4,600 compliance reviews, and of that, about 33 percent resulted in civil penalty actions. So that may give you an indication of how the authority is being used and to what extent.
Mr. OBERSTAR. What recourse would the Department have if, for example, it discovered systematic violations of hours of service regulations by a carrier; would you be able to bring action against the carrier as being unfit? Would you be able to shut a carrier down? Or would you have to allow it to continue operating, even though you know that they are violating hours of service regulations, and yet it is not at the level of imminent hazard, which, again, creates another threshold of burden of proof. What recourse do you have in a situation of systematic violation?
Ms. MCFADDEN. Beyond whatever jaw-boning kind of recourse our OMC staff might have, if it didn't rise to the level of imminent hazard, there is really—based upon the restrictions in that language, there is very little that we could do. The imminent hazard or threat to safety exception is our one recourse.
Mr. OBERSTAR. So this Appropriations Committee or conference report language, not to point fingers, whether it is done deliberately or inadvertently, but nonetheless the consequence clearly is—the Department is, I am even more concerned, not only handcuffed, but leg-shackled as well to do anything?
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Ms. MCFADDEN. We are, yes.
Mr. OBERSTAR. Thank you.
Ms. MCFADDEN. Thank you, Mr. Oberstar.
Mr. PETRI. Thank you.
Are there any other questions?
Mr. Horn.
Mr. HORN. You mentioned in your answer to a question that there didn't seem to be any stopping of the border inspections. I notice in your formal statement here on page 3, you say, let me now turn to the issue of what functions the Department will or will not be able to perform when section 338 becomes law. The Department may conduct border inspections to determine whether Mexican carriers have authority and insurance to enter the United States.
There is a real concern in California by the Teamsters, by a lot of truckers, that we aren't really doing what should be done on the border in terms of a real checking of those trucks.
Could you explain to me what type of person is at the border to look at that, or do you leave it to Customs and the Border Patrol? What does transportation do at the border and do you have any data as to what the infractions are? Is it just simply the insurance, the license, or is it actually something happening on that truck?
We know some trucks come across and they are filled with illegals. We know that other trucks are fine, and they have been given a sticker or something that sort of waves them on. And I wish we had sort of at least 1 in 10 to look at it, because we have that problem in our two ports, Long Beach and Los Angeles. Also when a container comes in, nobody knows what is in it, and does it relate to the bill of lading?
So I would just be interested in what you can tell me about how effective, how efficient, how many trucks have been pulled aside and would not be entered here. Do we have those data?
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Ms. MCFADDEN. Congressman, let me give you a very general answer and then either would like to follow-up either in writing or in person with some of our people who actually know a lot more about the details.
Mr. HORN. Sure.
Ms. MCFADDEN. But we do have Federal Office of Motor Carrier inspectors at border locations. We do take action not just with respect to insurance and authority to cross, but also with respect to safety and violations. I don't have numbers. We have somebody from the Office of Motor Carriers here if you would like the answer now, or we could follow up and have a much more detailed conversation with you if you would like. It is an important issue, and it is one that we are focused on.
Mr. HORN. I would like a temporary answer now and then a full background answer.
Ms. MCFADDEN. Let me ask Ms. Cirillo to try to give you more than I have been able to, Mr. Horn.
Ms. CIRILLO. Congressman, we have right now 40 Federal inspectors on the border. Most of them are in Texas—.
Mr. HORN. This is the Mexican border or the Canadian border?
Ms. CIRILLO. That is right, the Mexican border. We have no inspectors on the Canadian border. Most of them are in Texas. Most of the inspections in California are, in fact, done by the State of California, which has been very progressive in putting together good inspection stations. We do a whole range of inspections at the border, both the Federal inspectors and the State inspectors. It includes a thorough inspection of the vehicle, thorough inspection of the driver, including their credentials and their drug testing, et cetera, and also their separating authority.
We put out of service about—in California—about 25 percent of the vehicles coming in, and the other States slightly higher than 50 percent. But they can be put out of service—.
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Mr. HORN. Higher than 50 in California?
Ms. CIRILLO. No, 25 percent in California.
Mr. HORN. Twenty-five.
Ms. CIRILLO. Higher than 50 in the other three States.
Mr. HORN. What is the Texas percentage?
Ms. CIRILLO. Fifty-five percent, something like that. And that has to do with any of the violations. You can put a carrier out of service because the driver doesn't have credentials. You can put him out of service because of their hours of service is incorrect. You can put them out of service because of a medical certificate, or you can put the vehicle out of service because it doesn't have any brakes, or they don't have operating authority.
Mr. HORN. Well, thank you. I would appreciate a statement, if you could give me some real data there, just over the last year, or is it getting better, is it getting worse? That is the kind of thing I would like to share with my colleagues in the delegation.
Ms. CIRILLO. We would be glad to do that.
Mr. HORN. Thank you. At this point in the record, Mr. Chairman, I would like to have that document included.
Ms. MCFADDEN. We will provide that to you.
Mr. PETRI. When it is provided, it will be made a part of the record.
There is a vote on the journal on the House floor, and a number of other Members do have questions of the witnesses. So if it is all right, we will recess until 11 o'clock. The subcommittee is in recess.
[Recess.]
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Mr. PETRI. The subcommittee will resume. I recognize Mr. Oberstar for some questions.
Mr. OBERSTAR. Thank you, Mr. Chairman, for reconvening the hearing. I think there are a couple of additional matters to explore with our witnesses, because they are very, very serious concerns.
Section 338 would prohibit the Department from cooperating with the Attorney General in criminal cases. What does that do to the ability of the Department to carry out its safety functions? What is the significance of the Department's cooperation with DOJ in successful prosecution of criminal cases?
Ms. MCFADDEN. Congressman, I think there are two issues that are important. One, we work with the Department of Justice to enforce those things that we are not able to enforce administratively to go into court either with a civil action or a criminal action, if it rises to that, and we would not be able to do that. We would not be able to work side by side with the Justice Department to bring a motion for an injunction in court. We wouldn't be able to bring a criminal action along with our colleagues at the Justice Department.
Mr. OBERSTAR. Is that both prospective as well as current pending cases?
Ms. MCFADDEN. I think our legal advice would be that it would be both; that at the point in which section 338 became effective, that we would no longer be able to continue to work with the Justice Department. We could provide our information probably to the Justice Department, but practically speaking, as you know, those kinds of cases are carried out by the working together of the enforcement agency along with the Justice Department, and without us really working side by side, it is unlikely that the Justice Department would be able to proceed on its own.
Mr. OBERSTAR. This would undercut the ability of the Justice Department to prosecute cases successfully.
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Ms. MCFADDEN. Yes, sir.
Mr. OBERSTAR. Do States have authority to impose civil and criminal penalties by making these Federal motor carrier safety regulations their own?
Ms. MCFADDEN. States do have their own regulations and statutes and their own enforcement authority, and the one thing—I am very glad you asked this question, Congressman, because the one thing in addition to, if something rose to an imminent hazard threshold, we would be able to share—I think my testimony said something like the fruits of our compliance review investigations with the States. But they would have to take the enforcement action based upon their statute, and they would have to proceed with enforcement action and their enforcement regimes, but we could provide information to them to enable them to do it.
For example, in—as your example was—in egregious hours of service cases, it is possible that we could at least share that information with the States, and then hope they would proceed.
Mr. OBERSTAR. But, of course, where you have a motor carrier operation extending over several States, the question of venue, the question of who brings the action, and these hotshot lawyers that travel around the country to defend errant companies again further hamstrings the prosecution.
Ms. MCFADDEN. Yes.
Mr. OBERSTAR. Two further questions. One, a concern I have about a related matter. The welfare-to-work earmarks in the appropriation conference report pretty well absorbs the available dollars and limits the ability of the Department to carry out one of the key features, innovative features, of TEA-21, which is to extend both general revenue dollars and trust fund dollars to help resolve major transportation and employment issues.
What is your view of how the Department can effectively carry out its responsibilities with those earmarks?
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Ms. MCFADDEN. I will let Mr. Basso earn his money now.
Mr. BASSO. Thank you.
With regard to that, the earmarking clearly presents, Congressman Oberstar, a significant problem for us. While the monies will be obviously used for the statutory purpose of welfare-to-work, we thought the competitive process that we are undertaking with the discretionary authority we have would lead to certainly a wider distribution and our ability to combine those, as you suggested, with other funds; for example, transit projects and areas like that. So I think it clearly presents for us a significant problem.
Mr. OBERSTAR. I will want to meet with you to further explore this matter. I am greatly dismayed and disheartened by that unnecessary limiting of the Department's ability to carry out this program. I will just observe from my daughter's work in Jubilee Jobs in Northeast Washington, the most important part of finding jobs for people, 90 percent of her clients are ex-offenders that have fallen through the welfare net, and she has placed 400 people in jobs in the past 2-1/2 years. She is just one of several placement people. The toughest part is getting them to work, and welfare-to-work is going to provide those funds.
The final question, do you have language for a legislative fix which we can guide either the Appropriations Committee or take action on our own in this committee to fix this language?
Ms. MCFADDEN. We have shared some technical assistance with your staff in terms of ways that this situation, hopefully temporary, could be fixed, and we would be happy to do so, continue to do so, yes.
Mr. OBERSTAR. Thank you.
Thank you, Mr. Chairman.
Mr. PETRI. Thank you.
Let us see. Mr. Borski, did you have any questions?
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Mr. BORSKI. Thank you very much, Mr. Chairman.
Ms. McFadden, I want to ask you on page 5 of your testimony, you talk about the confidence in the great staff you have and that you can do all of this great work without major disruption. And I wanted to admire your spirit, but it would seem to me that there has already been major disruption.
How much time have you spent on this since this came about?
Ms. MCFADDEN. Congressman, I am—let me just say in the last 48 hours a lot more than one would guess. We deliberately didn't say in our testimony ''without disruption.'' it clearly is taking time. We are going to have to figure out exactly what logistical and practical impacts this has, but our staff is working through that, and we think we can effect the transfer.
Mr. BORSKI. Who has the responsibility for making sure that someone doesn't do something that is involving safety? I assume those jobs are pretty much divided now; you might spend so much of your time doing one thing and so much another. Is it up to the individual employee now, or who is looking over that?
Ms. MCFADDEN. Well, one of the things that we are doing is trying to take the legal analysis of where the line is drawn from what somebody can do and can't do under this provision and put it in very clear language that will be given to all of the employees, and then, of course, I think the responsibility will lie not only with the employee, but with supervisors in terms of making sure that we are not crossing that line.
But certainly responsibility lies with the managers and with people like me to make sure that we are clearly giving direction to our employees on what they can and cannot do.
Mr. BORSKI. But again, people like you and the managers also have other things they are supposed to be doing. It seems to me that this is a fairly significant disruption.
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I don't know if this is a question more than a statement, but wouldn't it be better if the President just vetoed this bill, told the Congress to take this section out, and then come back and pass a clean bill and go about our normal life?
Ms. MCFADDEN. Since you gave me a choice, Congressman, I think I will take the statement rather than the question, if that is okay.
Mr. BORSKI. That is fine.
Thank you, Mr. Chairman.
Mr. PETRI. Thank you, Mr. Borski.
Let me see. Other questions?
I have several, then, to kind of wrap things up. And you may have touched on this in the previous questions, and I have tried to avoid that, but I probably have not been entirely successful. How will you handle the cases where civil penalties are currently pending against a motor carrier or a driver?
Ms. MCFADDEN. Mr. Chairman, I think our direction will be that we are going to have to stop work on those pending cases.
Mr. PETRI. So at best they will be slowed down?
Ms. MCFADDEN. At best slowed down. If this is an interim situation, yes, slowed down. We won't—we will hold them in abeyance, let us put it that way.
Mr. PETRI. So if someone got a big case out there pending, this language is good news for them because it could relieve them of a sanction if we don't fix this?
Ms. MCFADDEN. Yes. Yes, Mr. Chairman.
Mr. PETRI. And they would go scot-free.
Ms. MCFADDEN. Potentially.
Mr. PETRI. Has the Department lost any motor carrier safety rulemaking authority under 338?
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Ms. MCFADDEN. In our view, our rulemaking authority is not affected because we have got other statutory authority that we can rely on for rulemaking as well. So in terms of rulemaking, we can continue to promulgate rules in this area.
Mr. PETRI. Okay, thank you.
Depending on whether we can fix this expeditiously or there is some delay, we may be interested in knowing what cases out there are going to be nullified in effect by this imprudent and, you know, unthought-through change in authority that you seem to be facing.
Ms. MCFADDEN. Mr. Chairman, we will be happy to provide that information to you.
Mr. PETRI. Given the motor carrier bills pending in both the House and the Senate, given that they call for the establishment of a separate motor carrier administration, will you soon have to spend time, money and energy to make this move a second time once we have completed our motor carrier bills, assuming that we do?
Ms. MCFADDEN. If those bills become law, yes, we would have to take action that would comport with those bills, and it would probably be some duplicative action and some new action.
Mr. PETRI. Now, I understand you have testified that the Department can continue to shut down carriers that it finds to be an imminent hazard to safety. But wasn't there a recent court decision on this imminent hazard standard that impaired your ability to shut down dangerous motor carriers under this provision; in fact, didn't the motor carrier safety legislation the Department sent up this summer include a provision to fix the imminent hazard standard?
Ms. MCFADDEN. Mr. Chairman, you are exactly right. Under current law, and as the courts are interpreting an imminent hazard, it is a difficult standard to use. We are hoping to fix it. It is true that section 338 provides that exception, and we think it is important to be clear about the facts of what the statute provides, but it is difficult to maintain, you are exactly right.
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Mr. PETRI. So they carefully carved out an exception, but it is one that is not very workable at this particular point in time?
Ms. MCFADDEN. It is one that is not often successfully used, yes.
Mr. PETRI. Finally, and let me just ask directly what Mr. Borski asked you so successfully—I will give you another chance to dance around if you want. Senator McCain this week publicly urged the President to veto the appropriations bill because of section 338 warning of the grave consequences of cutting off the Department's motor carrier enforcement authority. Will you recommend that the President veto the act because of section 338?
Ms. MCFADDEN. I have not discussed this with the Secretary, Mr. Chairman. I think it is our view and we have great confidence that we will be able to work with the Congress to fix this in short measure.
Mr. PETRI. Thank you. I suppose you don't make recommendations like that unless asked?
Ms. MCFADDEN. That is right.
Mr. PETRI. Not by me.
All right. Well, thank you both very much.
Mr. Oberstar.
Mr. OBERSTAR. Mr. Chairman, in light of Ms. McFadden's response to your questions about enforcement and violations and those that I asked earlier, I think if this isn't changed, then we need to change the title of the appropriations bill to the Motor Carrier Safety Violators Relief Act.
Mr. PETRI. With that, this hearing is adjourned.
Ms. MCFADDEN. Thank you, Mr. Chairman.
[Whereupon, at 11:25 a.m., the subcommittee was adjourned.]
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