Docket Management System
U.S. Department of Transportation
Room Plaza 401
400 Seventh Street, SW
Washington, D.C. 20590
RE: Fees for Security Threat Assessments for Hazmat Drivers (Docket No. TSA-2004-19605).
Dear Sir or Madam:
The Transportation Trades Department, AFL-CIO (TTD) is pleased to submit these comments to the Transportation Security Administration’s (TSA) Notice of Proposed Rulemaking (NPRM) to establish a fee for security threat assessments for individuals who apply for or renew a hazardous materials endorsement. TTD and our affiliated unions have been directly involved in the debate over the creation and implementation of background checks in the transportation sector. We hope that TSA will take advantage of the views and comments offered by transportation labor to ensure that the threat assessment program is implemented in a fair and balanced manner.
As more fully explained below, we do not believe that the fees proposed by TSA are consistent with the requirements imposed in the DHS Appropriations Act, nor do they represent a fair distribution of the costs associated with this program. We continue to believe that the federal government should assume at least some of the costs of conducting and administrating the security threat assessments mandated by Congress as part of the USA Patriot Act.
In the immediate aftermath of 9/11, the threat assessments and background checks were viewed by Congress as a necessary component in the war against terror and as a way of enhancing our national security. Hazmat drivers did not request these checks nor were we consulted about the impact this process would have on members or how it would enhance security. Since Congress considered the threat assessments a national security priority, it stands to reason that the government has some obligation to cover the costs of this mandate.
The federal government has provided security assistance to ports, airlines, states, non-profit institutions and other entities to enhance security, and in some cases, to meet mandates imposed by TSA and/or Congress. We see no reason why rank and file workers, including Hazmat drivers, should not receive the same consideration.
We do recognize that since passage of the USA Patriot Act, legislation was enacted requiring TSA to “charge reasonable fees for providing credentialing and background investigations in the field of transportation.” (P.L. 108-90, Section 520). However, this mandate must be implemented with the premise that threat assessments are part of our national response to terror.
In fact, nothing in the legislation requires fees to be imposed solely on drivers. Indeed, TSA stated in the preamble to the proposed rule that the NPRM will “allow TSA to spread the costs associated with the processing of background threat assessments in an equitable manner among the affected parties.” 1 This is an admirable goal, but quite frankly it is not what the proposed rule accomplishes. To the contrary, it imposes fees only on one “affected party” – Hazmat drivers. Employers are not required to contribute anything 2 nor are companies that use hazardous materials.
Furthermore, the general public presumably benefits from any activity that ensures that terrorist elements do not have access to large quantities of hazardous materials, yet no money from the general treasury is being used to offset the costs of the program. It must be remembered that the DHS Appropriations Act only requires TSA to charge reasonable fees to “conduct” or “provide” background checks. At a minimum, we believe that this language allows the federal government to absorb costs that are not directly related to providing actual checks. In particular, TSA has identified $4.76 million in start-up costs for threat assessment activities. Furthermore, many of the costs classified as “recurring” are actually used to create and maintain the infrastructure needed to conduct and provide the checks.
We maintain that these costs are more properly absorbed by the federal government and should not be passed on to individual drivers. In short, the federal government could assume responsibility for establishing and maintaining the infrastructure for threat assessments while passing on only those costs (i.e. personnel, materials etc.) that are incurred per check. This would ensure a more fair and balanced approached to allocating costs of this program, and would represent the reality that driver threat assessments are intended to enhance everyone’s security. Hazmat drivers must spend time applying for the security threat assessment, and could likely bear additional costs if an appeal or waiver is subsequently needed. To insist that this workforce also pay for one hundred percent of the costs of a background check is neither fair nor grounded in sound public policy.
We are also concerned that the NPRM allows private entities to charge a fee from drivers if a state decides to use a TSA agent to collect and transmit fingerprints and applicant information. The fee that these private agents will charge will presumably include some type of profit margin. If not, there would no incentive for the private entity to engage in the activity. The DHS Appropriations Act only authorizes fees that do not exceed the costs incurred by DHS for providing the credential or background check.
Allowing private entities to collect fees is beyond the authority Congress granted to TSA. First, the NPRM allows the recovery of costs not borne by DHS, but by a private entity. Second, and perhaps more to the point, the amount charged will be greater than what is needed to conduct the threat assessment. If TSA insists on enlisting private agents, it should provide the financial incentive and not create a government sponsored monopoly with drivers paying the costs.
Thank you for considering our views on this important matter.
Sincerely,
Edward Wytkind
President
1 69 Fed. Reg. 65342.
2 It should be noted that as part of certain collective bargaining agreements, employers will cover some or all of the costs incurred by the driver. However, the existence of these private agreements does not remove the obligation for TSA to distribute these costs in a more equitable manner.