[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]





                 RAILROAD GRADE CROSSING SAFETY ISSUES

=======================================================================

                                (109-29)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON

                               RAILROADS

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 21, 2005

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure


                                 _____

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                           WASHINGTON : 2006 
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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                      DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-    JAMES L. OBERSTAR, Minnesota
Chair                                NICK J. RAHALL, II, West Virginia
SHERWOOD L. BOEHLERT, New York       PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina         JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee       ELEANOR HOLMES NORTON, District of 
WAYNE T. GILCHREST, Maryland         Columbia
JOHN L. MICA, Florida                JERROLD NADLER, New York
PETER HOEKSTRA, Michigan             CORRINE BROWN, Florida
VERNON J. EHLERS, Michigan           BOB FILNER, California
SPENCER BACHUS, Alabama              EDDIE BERNICE JOHNSON, Texas
STEVEN C. LaTOURETTE, Ohio           GENE TAYLOR, Mississippi
SUE W. KELLY, New York               JUANITA MILLENDER-McDONALD, 
RICHARD H. BAKER, Louisiana          California
ROBERT W. NEY, Ohio                  ELIJAH E. CUMMINGS, Maryland
FRANK A. LoBIONDO, New Jersey        EARL BLUMENAUER, Oregon
JERRY MORAN, Kansas                  ELLEN O. TAUSCHER, California
GARY G. MILLER, California           BILL PASCRELL, Jr., New Jersey
ROBIN HAYES, North Carolina          LEONARD L. BOSWELL, Iowa
ROB SIMMONS, Connecticut             TIM HOLDEN, Pennsylvania
HENRY E. BROWN, Jr., South Carolina  BRIAN BAIRD, Washington
TIMOTHY V. JOHNSON, Illinois         SHELLEY BERKLEY, Nevada
TODD RUSSELL PLATTS, Pennsylvania    JIM MATHESON, Utah
SAM GRAVES, Missouri                 MICHAEL M. HONDA, California
MARK R. KENNEDY, Minnesota           RICK LARSEN, Washington
BILL SHUSTER, Pennsylvania           MICHAEL E. CAPUANO, Massachusetts
JOHN BOOZMAN, Arkansas               ANTHONY D. WEINER, New York
JIM GERLACH, Pennsylvania            JULIA CARSON, Indiana
MARIO DIAZ-BALART, Florida           TIMOTHY H. BISHOP, New York
JON C. PORTER, Nevada                MICHAEL H. MICHAUD, Maine
TOM OSBORNE, Nebraska                LINCOLN DAVIS, Tennessee
KENNY MARCHANT, Texas                BEN CHANDLER, Kentucky
MICHAEL E. SODREL, Indiana           BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania        RUSS CARNAHAN, Missouri
TED POE, Texas                       ALLYSON Y. SCHWARTZ, Pennsylvania
DAVID G. REICHERT, Washington        JOHN T. SALAZAR, Colorado
CONNIE MACK, Florida                 JOHN BARROW, Georgia
JOHN R. `RANDY' KUHL, Jr., New York
LUIS G. FORTUNO, Puerto Rico
LYNN A. WESTMORELAND, Georgia
CHARLES W. BOUSTANY, Jr., Louisiana
JEAN SCHMIDT, Ohio

                                  (ii)



                       SUBCOMMITTEE ON RAILROADS

                  STEVEN C. LaTOURETTE, Ohio, Chairman

THOMAS E. PETRI, Wisconsin           CORRINE BROWN, Florida
SHERWOOD L. BOEHLERT, New York       NICK J. RAHALL II, West Virginia
JOHN L. MICA, Florida                JERROLD NADLER, New York
SPENCER BACHUS, Alabama              BOB FILNER, California
JERRY MORAN, Kansas                  ELIJAH E. CUMMINGS, Maryland
GARY G. MILLER, California           EARL BLUMENAUER, Oregon
ROB SIMMONS, Connecticut             LEONARD L. BOSWELL, Iowa
TODD RUSSELL PLATTS, Pennsylvania    JULIA CARSON, Indiana
SAM GRAVES, Missouri                 PETER A. DeFAZIO, Oregon
JON PORTER, Nevada                   JERRY F. COSTELLO, Illinois
TOM OSBORNE, Nebraska                EDDIE BERNICE JOHNSON, Texas
MICHAEL E. SODREL, Indiana           JOHN BARROW, Georgia
LYNN A. WESTMORELND, Georgia, Vice-  JAMES L. OBERSTAR, Minnesota
Chair                                  (ex officio)
DON YOUNG, Alaska
  (ex officio)

                                 (iii)

                                CONTENTS

                               TESTIMONY

                                                                   Page
 Boardman, Joseph H., Administrator, Federal Railroad 
  Administration.................................................    24
 Hall, Gerri L., President, Operation Lifesaver..................    48
 Hamberger, Edward, President Association of American Railroads..    48
 Kucinich, Dennis, a Representative in Congress from the State of 
  Ohio...........................................................     5
 Mead, Kenneth M., Inspector General, Department of 
  Transportation.................................................    24
 Moore, Vicky, Trustee, Angels on Track Foundation...............     5
 Pickett, Dan, President, Brotherhood of Railroad Signalmen......    48
 Rosenker, Mark V., Acting Chairman, National Transportation 
  Safety Board...................................................    24
 Vitter, David, a United States Senator from the State of 
  Louisiana......................................................     5
 Worley, Paul, Chairman, Rail Safety Task Force, American 
  Association of Highway and Transportation Officials............    48

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Brown, Hon. Corrine, of Florida..................................   120
Johnson, Hon. Eddie Bernice, of Texas............................   150
Menendez, Hon. Robert, of New Jersey.............................   163
Young, Hon. Don, of Alaska.......................................   226

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

 Boardman, Joseph H..............................................    65
 Hall, Gerri L...................................................   126
 Hamberger, Edward...............................................   133
 Mead, Kenneth M.................................................   153
 Moore, Vicky....................................................   164
Pickett, Dan.....................................................   202
 Rosenker, Mark V................................................   214
Worley, Paul C...................................................   220

                       SUBMISSIONS FOR THE RECORD

 Boardman, Joseph H., Administrator, Federal Railroad 
  Administration:

  State Inspectors by Inspector Discipline, chart................    89
  The Railroad Industry's Safety Record, report..................    90
  Federal Railroad Administration's Rail Safety Action Plan......    93
  Statistics on Grade Crossing Accidents, 1995-2004, charts......   104
  Responses to questions from Rep. Blumenauer....................   108
  Responses to questions from Rep. Bachus........................   115

 Hamberger, Edward, President Association of American Railroads, 
  letter to Hon. Mary E. Peters, Administrator, Federal Highway 
  Administration, February 20, 2004..............................    49

 Moore, Vicky, Trustee, Angels on Track Foundation:

  Automatically Blaming the Victim: A Flawed Premiss with a 
    Hidden Rationale, Dr. Harvey A. Levine, Director, Crossing to 
    Safety, statement............................................   173
  The Heart of the Matter: The 94% Delusion, Dr. Harvey A. 
    Levine, Director, Crossing to Safety, statement..............   176
  Overgrown Vegetation at Railroad Crossings, Dr. Harvey A. 
    Levine, Director, Crossing to Safety, statement..............   179
  Railroad/Highway Grade Crossing Protection Sight Distance 
    Diagram, chart...............................................   182
  Dominant Voice on Rail Safety Echoes the Industry's Message, 
    Walt Bogdanich, article......................................   183
  Government-Funded Gate Installations: A Railroad Profit 
    Center?, Dr. Harvey A. Levine, Director, Crossing to Safety, 
    statement....................................................   189
  Oversight is Spotty on Rail-Crossing Safety Projects, Walt 
    Bogdanich and Jenny Nordberg, article........................   191
  Highway Agency Disavows Claims by Rail Safety Group, Walt 
    Bogdanich and Jenny Nordberg, article........................   195
  Number of Grade-Crossing Accidents and Casualties, chart.......   197
  Number of Grade Crossings, chart...............................   198
  Casualties Per Public Grade Crossing, chart....................   199
  Casulaties Per Private Grade Crossing, chart...................   200
  Gate Installations at Public Grade Crossings, chart............   201

 
                 RAILROAD GRADE CROSSING SAFETY ISSUES

                              ----------                              


                        Thursday, July 21, 2005

        House of Representatives, Committee on 
            Transportation and Infrastructure, Subcommittee 
            on Railroads, Washington, D.C.
    The committee met, pursuant to call, at 10:15 a.m., in Room 
2167, Rayburn House Office Building, Hon. Steven C. LaTourette 
presiding.
    Mr. LaTourette. The Subcommittee will come to order. I want 
to apologize for being a little tardy. We were introducing some 
legislation on the data security breaches that are occurring 
all across the Country, at places like Designer Shoe Warehouse. 
So I am a little late.
    I want to welcome all of our members to today's hearing on 
the subject of railroad grade crossing safety issues. Together 
with trespasser deaths, railroad grade crossing fatalities 
account for nearly 95 percent of all U.S. rail fatalities. 
Fortunately, the number of grade crossing fatalities per 
year have been declining. Since 1994, both rail and 
highway traffic have increased significantly, but the number of 
grade crossing fatalities has decreased by 46 percent.
    As I have said many times, credit for the high level of 
safety on our Nation's railroad goes first and foremost to the 
hardworking railroad employees who strive to make safety an 
integral part of their difficult and demanding jobs. In 
addition, the Federal Railroad Administration has worked 
unceasing to enforce safety regulations and develop new 
technologies to prevent accidents. The Association of American 
Railroads has also been at the forefront of railroad safety 
research and education.
    Today we are going to explore in depth the issue of 
railroad grade crossing safety. I am interested in learning 
more about the FRA's new regulations concerning locomotive 
whistling. Also hope to gain some feedback from the National 
Transportation Safety Board, AASHTO, and the DOT Inspector 
General. Each of these organizations has made safety 
recommendations in the past, and I want to know what progress 
we have made.
    Finally, I hope that the Brotherhood of Railroad Signalmen 
gives us the view from the front lines. I know that the 
signalmen are called upon to test and repair grade crossing 
signals in the event of an accident, and I would like to hear 
from them what we can do to make our grade crossings much more 
safe.
    Before yielding to Ms. Brown, I have one brief housekeeping 
matter. I would like to ask unanimous consent that all members 
would have 30 days to revise and extend their remarks, and 
permit the submission of additional statements and materials by 
the witnesses. Without objection.
    I now want to yield to our distinguished Ranking Member, 
Corinne Brown from Florida, and thank her. This hearing comes 
about as a result of a letter that she sent to me on May the 
26th of this year expressing her grave concern over a number of 
safety issues that relate to America's railroads.
    So it is not your birthday, but this is your hearing, and I 
would be happy to yield to the young lady.
    Ms. Brown. I want to thank you, Mr. Chairman, for holding 
this hearing on grade crossing safety. I want to welcome all of 
the distinguished guests and thank them for joining us today. I 
particularly want to thank Ms. Vicky Moore, from Angels on 
Track Foundation, for being here today, her and her husband.
    Last month, the Department of Transportation Inspector 
General reported that the Federal Railroad Administration had 
made progress toward achieving its 10-year goal of fewer than 
2500 grade crossing accidents and 300 fatalities. Grade 
crossing accidents are down from 5,000 in 1993 to about 3,000 
in 2003. Fatalities also decreased from 626 to 325. Despite 
this progress, the number of deaths at crossings rose 11 
percent in 2004.
    While a few high-profile accidents have raised serious 
questions about safety and security in the railroad industry, 
the fact is that we need to do more on rail safety. We need to 
make sure our laws and regulations are effective, that they are 
being enforced, and that we are addressing the right problems. 
We need to look at whether the FRA has the necessary resources 
to do its job, or whether they need more inspectors or more 
funding.
    Certainly, we need to pass an FRA reauthorization bill. We 
need to identify improvements that could further grade crossing 
safety and aid in reducing accidents and fatalities. And we 
need to look at FRA oversight capacity.
    Last summer, the New York Times raised serious questions 
about accidents reported and investigations at grade crossings. 
Responding to this concern, I sent a letter, along with Ranking 
Member Oberstar, to the Department of Transportation Inspector 
General, asking him to review FRA oversight and inspection 
programs. I understand that Mr. Mead is prepared to talk about 
the audit at this hearing today, and I look forward to his 
statement.
    Finally, I want to mention the issue of whistle bans. One 
of the first bills I introduced some 25 years ago at the State 
legislature would have mandated whistles at all railroad 
crossings, because I believe it is the best way to warn people 
and because I believe that everyone knows what the whistle 
means. I sympathize with those who are struggling with this 
noise, but the railroad built this Country, and those tracks 
have been there for over 100 years.
    Finally, I want to say that we can no longer keep our head 
in the sand as it relates to rail security. This Congress and 
this Administration owes it to the American people to protect 
them. Even after the attacks in Spain last year and the attacks 
in London last week, we haven't moved to protect our railroad 
and transit systems. And sadly, we see it again today in 
London. We passed several so-called emergency funding bills for 
Iraq, but we can't even get rail security legislation through 
the Committee. This is an absolute emergency we are facing, and 
we haven't done anything.
    I hope that today's horrific attack in London will move 
Washington to act. This issue is very important to the American 
public, and I look forward to hearing from today's witnesses. 
And I yield back the balance of my time.
    Mr. LaTourette. I thank the gentlelady. Until her opening 
statement, I was unaware that you could serve in the Florida 
legislature at the age of 15. But congratulations.
    [Laughter.]
    Mr. LaTourette. Mr. Miller.
    Mr. Miller. Thank you, Mr. Chairman.
    This is a really significant issue in my district, which is 
the Alameda corridor. It is something that we deal with 
regularly; it is a gateway to trade for our Nation from the 
ports of Los Angeles and Long Beach. People throughout the 
United States and the world count on freight shipped through 
these ports via transcontinental railroad.
    This is an economically vital corridor which runs through 
my district, with the possible distribution of billions of 
dollars worth of trade every year. In fact, more than 50 trains 
travel just in the Orange County sector each day, not including 
L.A. and San Bernardino that I represent, and it is projected 
by 2020 to go up to 135 trains per day just in that small 
portion of my district.
    This corridor is vitally important to economic growth. We 
look throughout this Nation at the amount of goods that are 
shipped back and forth, and we acknowledge that it is 
beneficial to receive those goods. The problem we have is we 
fail to recognize that the at-grade crossings and lack of 
separations that we have in California have tremendous impact 
on the economy and people going to and from work; truck 
transportation and many other services we try to provide in 
California.
    We also have a tremendous problem with quiet zones. In one 
city I have, I believe in five miles they have 12 crossings. In 
fact, in California we have 11,000 at-grade crossings total. 
But the impact on the community with trains entering these 
areas, when they start to blow their horns and they don't stop 
blowing them until they leave the community, it is just a 
tremendous impact to California.
    Not only are we impacted that way, but the safety issue is 
huge. On January 26th of this year, 11 people were killed in 
Glendale, as man of you recall, when an individual parked his 
SUV on the tracks, left that; a Metro Link train slammed into 
that SUV, slid off the tracks, hit a parked freight rail car, 
and they also clipped a northbound Metro Link train at the same 
time.
    In 2002, three passengers were killed in Placentia and some 
260 were injured when crewmen aboard a freight train were 
chatting and missed a crucial yellow warning sign and slammed 
into the back of a Metro Link train. And in June of 2003 in our 
area, in the City of Commerce, six houses were destroyed--
really nobody was hurt, and that was a miracle in and of 
itself--by a runaway freight train.
    But in California there is about $802 billion worth of 
goods shipped from California throughout this Nation is 
significant. The only thing I hear more about in California 
locally than the impact on the Alameda corridor is illegal 
immigration. So that speaks boldly for the need to deal with 
this issue of freight movement. We have to move it effectively; 
we have to move it safely; and we need to ensure the quality of 
life and safety for the surrounding communities.
    I am looking forward to the testimony from our Committee 
hearing today, and I thank the Chairman for your time. I yield 
back.
    Mr. LaTourette. I thank the gentleman.
    Mr. Blumenauer.
    Mr. Blumenauer. Thank you, Mr. Chairman. I appreciate this 
being yet another example of the cooperation between you and 
our Ranking Member, Ms. Brown, to be able to get to critical 
issues that face the railroad industry. I will be brief, 
because I am looking forward to hearing from our former 
colleague, Senator Vitter, Congressman Kucinich, with whom I 
have worked on issues of livability and railroad impacts on his 
community.
    This hearing, I think, is very important for us to be able 
to put this issue in perspective. We have been spending tens of 
millions of dollars to try to improve grade crossings. We have 
significant changes in the industry. We have closed thousands 
of crossings in recent years. What should be the accident rate? 
How do we interpret that? I am looking forward to the 
impressive list of witnesses that you have here, to learning 
from them.
    I also understand that we have to balance the needs of 
growing communities with the demand of freight movement, and I 
appreciate what Congressman Miller was talking about in terms 
of the Alameda corridor, where we are all sort of tied into 
freight railroad movements in his district. I also understand 
that there are significant consequences if we were to shift a 
significant amount of this traffic to trucks, in terms of the 
environmental and the safety issues that would be involved 
there.
    I think you have an excellent balance of witnesses that 
will help us get that perspective, and I look forward to the 
conversation today and what we can do to make sure we are 
balancing the responsibilities and opportunities for Federal 
regulation and responsibility with what the freight railroad 
industry does and what is happening on the ground with our 
various communities.
    Mr. LaTourette. I thank the gentleman.
    Mr. Simmons.
    Mr. Simmons. Thank you, Mr. Chairman, and thanks to the 
Ranking Member for having this important hearing today.
    I represent a district in eastern Connecticut, on the Rhode 
Island border, that hosted the first interstate railroad in 
America back in 1836, and the roadbed that was established back 
in 1836 from Providence, Rhode Island to Stonington, 
Connecticut is essentially the same roadbed today, except it 
hosts the northeast corridor for Amtrak and also hosts a 
certain amount of freight rail from Providence and Worcester.
    Of all the at-grade crossings between Boston and New York, 
seven are in Connecticut; they are all in my district. Six of 
the seven are in my hometown. And this was an issue especially 
when the Acela train was deployed on this line: Would we close 
these crossings and provide separation through overpasses in a 
very historic part of the State of Connecticut, or would we go 
to safety gates?
    I advocated for quad gates. We have quad gates now. We have 
an outstanding safety record with those quad gates at a 
fraction of the cost of grade separation and overpasses, and no 
substantial damage to the historic features of the town. So I 
am here to advocate for safety gates and open crossings, where 
those are appropriate.
    I will also say that Amtrak is considering a new line to 
Springfield, Massachusetts from the New Haven area, and that, 
of course, would raise the question of at-grade crossing safety 
for existing lines that are under-utilized and might be used to 
a greater extent in the future.
    I think we all want safety on our rail system, whether you 
are riding the rails or whether you are crossing the rails. And 
any way that this Subcommittee can bring about that solution, I 
am happy to participate.
    Thank you, Mr. Chairman. I yield back.
    Mr. LaTourette. I thank the gentleman.
    With the indulgence of those members who have yet to make 
opening statements, Senator Vitter has a vote at 10:45, and if 
it is all right with Mr. DeFazio and Ms. Norton and Ms. Carson, 
we will let the Senator testify, and then we will come back.
    I would also like to ask unanimous consent, as we move 
forward with this hearing, to add to the first panel Vicky 
Moore, who traveled here to Washington on her own dime. And I 
think because of not only that fact, but the importance of her 
message, if it is all right with everybody, I would like Ms. 
Moore to testify after Congressman Kucinich.
    So on our first panel this morning--and then we will resume 
opening statements--we are very fortunate to be joined by a 
member of the senior body, a former colleague of ours over here 
in the House--and his election to the Senate was a great loss 
to the Louisiana delegation here in the House of 
Representatives, but I am sure he is continuing his fine work 
in the United States Senate--we are lucky to have the Honorable 
David Vitter with us.
    Senator, welcome, and we look forward to hearing from you.

  TESTIMONY OF DAVID VITTER, A UNITED STATES SENATOR FROM THE 
   STATE OF LOUISIANA; DENNIS KUCINICH, A REPRESENTATIVE IN 
 CONGRESS FROM THE STATE OF OHIO; VICKY MOORE, ANGELS ON TRACK 
                           FOUNDATION

    Senator Vitter. Thank you, Mr. Chairman, very much. And, 
Ms. Brown, thank you for convening this hearing. And as a 
former member of this body--and I think I am still a House 
member at heart--I would say I am now a member of the other 
body, not the senior body. It is great to be back over here 
breathing some fresh air.
    As you may recall, when I first came here, I was a member 
of this Committee. Now that I have gone to the Senate, I am now 
a member of the Senate Environment and Public Works Committee. 
And I have really cherished those opportunities to work on 
critical transportation issues, including railroad safety for 
Louisiana and the Nation.
    Unfortunately, in Louisiana, the story is pretty bleak. It 
has become an all too familiar occurrence, turning on the local 
news and seeing yet another accident involving a train-car 
collision at a railroad crossing.
    Mr. Chairman, you mentioned that the statistics nationally 
have been getting a lot better. I wish that were the case in 
Louisiana. But we have one of the highest rates in the Country 
for collisions and fatalities, and it hasn't been getting 
better. In 2004 alone, Louisiana had 166 highway-rail grade 
crossing collisions, the third highest in the Country.
    It is not the third highest per capita, it is just the 
third highest in numbers. And we ranked fifth in the number of 
highway-rail grade crossing fatalities, with 23 deaths in 2004. 
In 2005 already, just this part of this year, we have had 15 
highway-rail crossing fatalities. So, unfortunately, we are on 
a pace to even go beyond that horrible 2004 number.
    In addition to the incredibly tragic loss of life, these 
collisions have a high economic cost as well. According to a 
study conducted by the National Highway Traffic Safety 
Administration in 2000, these collisions have cost the citizens 
of just Louisiana an estimated $5.7 billion, which accounts for 
4.5 percent of personal income.
    With this in mind, I have joined Senator Barbara Boxer in 
introducing S. 1380, the Railroad Safety Improvement Act of 
2005, to provide all of America, including our States, the 
resources to close dangerous crossings and improve existing 
crossings to make them safer. The Railroad Safety Improvement 
Act will help end the tragic loss of life at these crossings by 
equipping States and local governments with the tools needed to 
make these crossings safer for all of our citizens.
    It will do a number of things. First of all, the bill 
requires the U.S. Department of Transportation to work closely 
with States and municipalities to close one percent of all 
public and private grade crossings each year for a 10 year 
period. So that is obviously a total of 10 percent of those 
crossings. Priorities will be given to crossings that have the 
most danger and the least protective equipment. So these 
crossings will be ranked and will close the most dangerous 10 
percent over 10 years.
    I am very pleased that on June 30th, in my State, Louisiana 
Governor Kathleen Blanco signed into law a State law, Senate 
Bill 353, which gives our State the power to close railroad 
crossings deemed too dangerous. So these laws will dovetail 
with each other in my State of Louisiana to work very well with 
each other. The Louisiana Department says that at least 50 
Louisiana crossings should be closed.
    Louisiana has received $3.2 million in railroad safety 
money from the Federal Government every year since 1987, and 
that amount has never increased. And I suspect that is a 
similar story for most States. Each year Louisiana spends 
another $7 million of State money that combines to $10.2 
million. That is clearly not enough to do the job we need to do 
to close key crossings to make others safer.
    Louisiana, California, Indiana, and Texas are the States 
that lead the Nation in collisions, injuries, and fatalities, 
but all States have this problem to some extent. And under my 
bill with Senator Boxer, the U.S. Department of Transportation 
would award $178 million in Federal grants to States for 
necessary safety improvements.
    The Railroad Safety Improvement Act will also provide more 
than $6.7 million for Operation Lifesaver, a national education 
and awareness program, with branches in 49 States, dedicated to 
education awareness to end tragic collisions, fatalities, and 
injuries. This group also promotes active enforcement of 
traffic laws relating to crossing signs and signals, and 
encourages continued engineering research and innovation to 
improve safety at crossings.
    Between closing the most dangerous crossings, making safety 
improvements at many others, and dramatically improving our 
education outreach program, we can make all of our citizens a 
lot safer, and I look forward to working with all of you on 
this and similar legislation.
    Mr. Chairman, Ranking Member Brown, all Subcommittee 
members, thank you so much for the opportunity to talk about 
this legislation. I look forward to any questions and, even 
more, look forward to working with all of you on these 
initiatives.
    Mr. LaTourette. Well, Senator, thank you very much for 
making the trip to the other side of the Capitol and for your 
work. I know that all members of the Subcommittee and the full 
Committee will be anxious to look at your work with Senator 
Boxer. As you go back to the Senate, though, I note that you 
are a conferee on the highway bill, and anything you could do 
to sort of nudge your fellows to get us in agreement sometime 
before we leave in August would be greatly appreciated.
    Are there any questions for the Senator before we let him 
go?
    Senator Vitter. Mr. Chairman, I am doing a lot more than 
nudging, and I will continue to do that. I would also ask that 
Senator Boxer's opening statement be accepted into the record. 
I have that on her behalf.
    Mr. LaTourette. Without objection. We thank Senator Boxer 
as well. And you go with our thanks.
    Congressman Kucinich, by my count, we have about three more 
opening statements. Can you bear with us? Thank you very much.
    Mr. DeFazio.
    Mr. Westmoreland.
    Ms. Carson.
    Ms. Carson. [not at microphone.]
    Mr. LaTourette. Mr. Cummings, do you have an opening 
statement you want to make?
    Mr. Cummings. Yes, I do, Mr. Chairman. I will be very 
brief.
    Mr. Chairman, I want to thank you for calling today's 
hearing to evaluate the state of grade crossing safety programs 
and procedures. The Association of American Railroads reports 
that there are more than 150,000 public railroad grade 
crossings in this Nation. These crossings dot our Nation's 
highways, creating dangerous intersections between fast moving 
trains and vulnerable cars, where an increasing number of 
motorists are dying.
    Federal figures show that after years of steady declines in 
deaths at grade crossings, the number of people killed at these 
crossings increased by approximately 11 percent in 2004, over 
the number in 2003. Federal statistics show that there were 
more than 3,000 accidents at grade crossings in 2004, resulting 
in 368 fatalities. In fact, the total number of injuries at 
grade crossings has actually been rising since 2002.
    An award winning series of articles published by the New 
York Times from July 2004 through February of this year has 
uncovered a number of disturbing findings about rail crossing 
incidents. For example, the November 2004 Times article 
reported that the Federal Railroad Administration had 
investigated four of the 3,000 rail grade crossing accidents 
that had occurred during the previous year. Other articles in 
the Times series uncovered unsafe practices and safety system 
failures that have contributed to accidents at grade crossings, 
and have identified incidents in which railroads have destroyed 
or tampered with evidence after accidents have occurred.
    Unfortunately, it is not only the number of grade crossing 
accidents that is increasing. According to the FRA, the number 
of train collisions rose in 2004, to 259, an increase of 59 
collisions over 2003. The number of train derailments has also 
increased, rising from 2,118 in 2003 to 2,263 in 2004.
    Appropriately, the relationship between the FRA and the 
railroads it regulates has also come under increased scrutiny. 
The United States Department of Transportation Inspector 
General concluded late last year that the ``partnership'' 
approach to regulation currently utilized by the FRA is not 
ensuring that the railroads operate safely. In a report issued 
in December 2004, the IG also found that the FRA is not 
imposing sufficiently stringent penalties when safety 
violations are found.
    The Inspector General required that the FRA develop a new 
rail safety action plan that would specifically assess when the 
partnership approach to regulation is no longer effective in 
ensuring compliance with safety requirements. Finally, the 
Inspector General also instructed that this safety plan should 
redirect field inspection activities and provide milestones for 
measuring progress and implementation of the plan.
    I am eager to hear from the Inspector General whether he 
believes that the plan put forward by the FRA meets these high 
benchmarks.
    Let me note that while today's hearing is focused on grade 
crossing issues, I want to point out that there appear to be 
other gaping holes in railroad safety, and I hope our Committee 
will be able to address those in future hearings.
    With that, I yield back.
    Mr. LaTourette. I thank the gentleman.
    Mr. Bachus?
    Mr. Bachus. I thank the Chairman for having this hearing.
    I would just like to make one comment when we talk about 
grade crossing accidents. This is one of the few cases in 
American jurisprudence when the public or public highways built 
over an existing railroad track, and, yet, if there is a 
collision between an automobile and a train, and basically on 
the property of the railroad, then we hold the railroad 
responsible. And there are times when that is appropriate, but 
there are many times when it is not appropriate, when the 
railroad has not contributed to the accident.
    And I have often thought that if you were coming down on 
basic fairness, in about 90 percent of the grade crossings in 
America, the railroad track was there before the road, and 
either the State or the county or city, or even an individual, 
got permission from the railroad to build across that track, 
and it was implied, when most of that was done, that it was 
actually strict liability in many jurisdictions where that was 
located for them to safely get across the track.
    So the railroads of this Country have assumed a tremendous 
amount of liability for the benefit of the public, and I think 
it is incumbent upon the Government, for the Federal Government 
on down, to do all they can do because of the benefit that the 
public receives to fund elimination of grade crossings, where 
appropriate, and fund overpasses, underpasses, things of that 
nature.
    On our transcontinental railroads, the railroads every year 
pay out hundreds and hundreds of millions of dollars not only 
in judgments, but they pay out hundreds of millions of dollars 
in time delayed from accidents, many by people who are trying 
to beat a train to a crossing. And the railroad, when that 
happens, the least that it is going to cost them, if you are 
talking about a typical freight train crossing the Country, is 
100 or $200,000 in delayed time.
    And, as I said, this is probably a case of where the track 
was there and the public, with no compensation to the railroad, 
built a road across it, then turned to the railroad at some 
later time and said protect the public as it crosses that 
crossing. And I think we ought to really revisit the law in 
this field.
    There are obviously things the railroad needs to do from a 
sight distance standpoint and maintaining the condition of that 
crossing. But I am not so sure that, really, in equity and 
fairness, maintaining that crossing shouldn't be the 
responsibility of the Federal Government if they cut that 
right-of-way, or the city or the county or the State.
    So, with that, I yield back any time. And I appreciate the 
opportunity to speak on it.
    Mr. LaTourette. I thank the gentleman very much. His 
observation is a great segue to our next witness, my friend and 
neighbor from Cleveland, Ohio. Congressman Kucinich was 
instrumental in the last highway bill in recognizing that the 
best way to keep cars and trains away from each other is to 
build grade separations, and he was instrumental in bringing 
millions of dollars to the greater Cleveland area when the 
assets of Conrail were being acquired by the CSX and Norfolk 
Southern Railroads in making sure that the safety of his 
constituents were a top priority, and he continues to do that.
    So, Congressman Kucinich, thank you for taking time out of 
your schedule to be here, and we would like to hear from you.
    Mr. Kucinich. Thank you very much, Mr. Chairman. I want to 
thank you, the Chairman, and the Ranking Member, Congresswoman 
Brown, for the opportunity to testify about railroad safety at 
grade crossings. I also want to thank each and every one of my 
colleagues on this panel for their dedication to these issues.
    The daily onslaught of trains is a very important issue to 
my constituents in northeastern Ohio. In 1997, the Norfolk 
Southern CSX buyout of Conrail, as originally proposed, would 
have more than tripled the number of freight trains through 
primarily residential communities in Cleveland's West Shore 
area, destroying much of the peacefulness and tranquility in a 
number of communities.
    The large number of grade crossings and a likelihood that 
emergency services that needed to cross the tracks would be 
delayed as trains traveled through the area led me to express 
great concern for the safety of these communities, and, as a 
result, I had to intervene. A coalition of Federal, State, and 
local officials--and, I might add, with the help and leadership 
of Chairman LaTourette--worked hard to reach a negotiated 
settlement with the railroads.
    The final train traffic agreement provided $87 million in 
train traffic mitigation, primarily for the new construction of 
underpasses and overpasses, and a guaranty that 27 grade 
crossings would be installed, a guaranty that was completed in 
September of 1999, nearly a year earlier than expected.
    And, again, I want to acknowledge that the Chairman of this 
Subcommittee deserves significant credit for this agreement, 
which, in a way, was one of a kind.
    Of the many issues we faced, the fact that grade crossings 
are a significant challenge to safety was difficult to 
overcome. As some of the members of this panel, I represent an 
urban area, with a major rail line that runs 70 trains a day at 
a minimum. At rush hour, things do get hectic; people do take 
risks. That is a major cause of concern for me as I continue to 
push hard for grade separations in my district.
    The challenge of grade crossing safety will grow even more 
because of the new Federal Quiet Zone Rule that allows 
communities to ban horns. In response to train horn noise 
concern, several cities in my district are actively looking to 
take advantage of this rule by meeting safety requirements.
    I want to say, Mr. Chairman, that the FRA should be 
commended for their efforts to ensure safety and tranquility of 
those who live along railroad lines across the Nation. However, 
as I have indicated to the FRA, my support is contingent on 
strong mechanisms that ensure continued safety at grade 
crossings. I cannot emphasize enough the importance of 
continued train safety. Train noise is a serious concern, but 
train safety is a matter of life and death. Collisions 
increased 84 percent when train horns were banned at grade 
crossings and no additional safety measures were installed.
    Now, if we ban train horns--and, again, I am someone who is 
all for peace and tranquility in the communities--we need to 
ensure that we do not increase the number of collisions. The 
Quiet Zone regulations must protect our children, and anything 
less is unacceptable.
    Now, I have talked to the FRA. As a matter of fact, they 
were present in my district to provide public officials with an 
update on the evolution of the Quiet Zone Rule. We need to work 
very closely together because the FRA must continue to seek 
ways to fund grade crossing modifications in a manner that is 
not cost-prohibitive. And I am also encouraging the FRA to 
approach Congress with a plan to offer additional funding to 
help fund these projects.
    And again, Mr. Chairman and members of the Committee, we 
really have to work to achieve a balance of assuring the 
movement of train traffic expeditiously through our districts, 
allow for the peace and quiet of the people who we serve, and 
also make sure that we uphold paramount concerns of safety.
    I thank the Chairman and I thank the members of the 
Committee.
    Mr. LaTourette. I thank you very much, Congressman 
Kucinich, for coming to share with us.
    Does anybody have any questions of Congressman Kucinich 
before we move forward?
    Mr. Westmoreland?
    Mr. Simmons. I have a question. I agree completely with the 
issue of the whistles, that when you can get grade separation, 
you should be able to eliminate the whistles, although 
sometimes that doesn't happen for reasons that only the 
railroads can describe.
    Your focus has been on separation. I tend to focus on grade 
crossings with quad gates, because I represent a more rural 
community than the community that you are talking about. Are 
there any applications for quad gates in your community?
    Mr. Kucinich. Yes. As a matter of fact, there are areas in 
my district that are less heavily populated, where the quad 
gates would serve to provide for effective safety and, at the 
same time, the FRA Quiet Zone Rule would ensure some peace and 
quiet for people who have been living along the tracks.
    Let us face it, if you live in an area which is proximate 
to a railroad, the chances of you getting jarred out of your 
sleep are pretty good, and this is a real concern in many 
communities where people do treasure their peace and quiet. 
People want to support commerce with the railroads.
    So our job here--and this Committee, with the leadership of 
Mr. LaTourette, is really on the right track, if we can say 
that--is that we achieve a balance. Those quad gates you talk 
about are part of that balance that you achieve. With a ban on 
train noise or the horn and then the quad gates, the trains can 
move through quickly.
    But the FRA, to its credit, Mr. Chairman, I had the chance 
to meet with them and see the presentation. The FRA, to its 
credit is considering all these different variables and trying 
to actually create a solution for each community, because that 
is really what we are looking at. There are so many variations, 
and the FRA has actually created a program, Mr. Chairman, that 
communities can go into and kind of custom design their own 
solution. So this Committee is going to be very important in 
helping to facilitate that.
    Mr. Simmons. Thank you, Mr. Chairman. Thank you.
    Mr. LaTourette. Mr. Westmoreland, do you have a question 
you want to ask?
    Mr. Westmoreland. Thank you, Mr. Chairman.
    I live in a small town called Grantville, Georgia. The name 
of it was Calico Corners before the railroad came through, and 
the first conductor of the train was named Mr. Grant, so they 
named the town Grantville after him because they were so glad 
to have the railroad come through their town. And it was 
basically a railroad town for a long time, with cotton and 
other agricultural products that were hauled from the area.
    You mentioned communities and railroads and horn blowing. 
Horn blowing has always been a part of a railroad, I guess. I 
grew up in Atlanta, which was another railroad city, and 
constant horns blowing through there. But most of the 
communities, not only in Atlanta, but in Grantville and other 
small towns, have grown up around the railroads, similar to 
what Mr. Bachus from Alabama mentioned.
    In Georgia we have real estate laws. If you are so close to 
an annoyance or something that could be an annoyance, I think 
within a mile or so, you have to make the buyer beware of what 
you are doing.
    So is it your premise that if cities and counties allow 
communities to go in around railroads, that the Federal 
Government should come in and make for peace and quiet along 
those corridors?
    Mr. Kucinich. Well, the one fix that I alluded to that 
happened where people were concerned about 44 trains a day, as 
Mr. LaTourette knows, was in one of the most heavily populated 
residential areas between New York and Chicago, on the west 
side of the City of Cleveland. It is true that the railroad 
tracks came before some of those neighborhoods that grew up. 
That is absolutely true.
    The charm of the rail horn is somewhat lost, though, when 
you are in a densely populated area. So what has to happen, I 
think, is that we try to strike a balance. And, actually, that 
is what did happen. But it was only with the cooperation of the 
Federal, State, the local government. And, I might add, it was 
bipartisan cooperation. That is the only way we could have done 
it. There was no possible way.
    But you make a good point. Some communities, it is part of 
the lore, part of the history of a community. Still, because 
trains are faster and safety procedures are much more advanced 
today, we might be able to do things that will save lives, at 
the same time affect the orderly movement of commerce through 
our communities. We want to do both, actually, it is not one or 
the other.
    Mr. Westmoreland. And the last question is on grade 
crossings. In my dealings with some of the railroads, in trying 
to get a grade crossing upgraded for development or whatever, 
their philosophy has been, well, if you will close down three, 
we will upgrade this one. And it seems to me, in thinking about 
what Senator Vitter said--and I didn't hear all of that--was he 
wants the Federal Government to pay to shut down some of these 
railroad crossings.
    Isn't that kind of what the railroads want us to do? I 
don't think they want any grade crossings. If I was a railroad 
man, I wouldn't want any grade crossings. So why wouldn't we 
let them close down their own grade crossings, rather than us 
pay for them to be shut down?
    Mr. Kucinich. I think, the way I look at this, this is a 
decision that ought to come from the local communities first, 
in consultation with the railroads and the Federal Government--
that is what we did--and the State as well, and to figure out a 
solution. The truth is no one wants to pay for it. But the fact 
of the matter is that occasionally a city might want to shut it 
down. But we have to always make sure that safety is paramount. 
So there is no one-solution-fits-all for this matter.
    I think the FRA, Mr. Chairman, recognized that in its Quiet 
Zone Rule. Every member here in this room knows their district 
better than any other member. We know some solutions will work 
and some won't. And what I like to do is to leave it to the 
local communities to give me some solutions, because the last 
thing I want to do is to impose on any local community a 
decision relative to a grade crossing. And I don't think the 
railroads want to do that either.
    Mr. Westmoreland. No, and I agree. I totally agree with 
you. But don't you think if you were going to close a grade 
crossing--let us say we were going to close one of the ones we 
have got in Grantville--couldn't we just go put some concrete 
barriers up or some of these nice decorative concrete things 
that we have got all around the Capitol and just close off the 
road?
    Mr. Kucinich. I think that both of us have an appreciation 
for aesthetics. I don't know if people in some of our 
communities have the same appreciation that we have.
    Mr. LaTourette. Well, Congressman, I thank you very much 
for sharing your time and your thoughts with us today. It is 
invaluable as we move forward.
    Mr. Kucinich. Thank you, Mr. Chairman.
    Our final witness on this panel, under my unanimous consent 
request, is Ms. Vicky Moore from The Angels on Track 
Foundation. As I, mentioned, she has traveled here to share her 
story with us at her own expense, and we are very appreciative 
of that.
    I want to indicate I was very appreciative of the time you 
and your husband took yesterday to meet with Congressman Ney 
and I and, for the record, want to indicate that one of the 
things that constantly amazes me as we do this job in a variety 
of areas are the number of Americans who take a tragic 
situation and then dedicate their lives to making life better 
for other Americans. That certainly applies to you and your 
husband.
    We appreciate your coming. We very much look forward to 
your testimony, whenever you are ready.
    Ms. Moore. Thank you, Chairman LaTourette, Ranking Member 
Brown, and members of the Subcommittee. I appreciate the 
opportunity to testify on issues pertaining to grade crossing 
safety. Our foundation was formed after our two sons were 
involved in a catastrophic grade crossing accident in 1995. Our 
youngest son, Ryan, and two others were killed.
    The approach to the non-gated crossing was a steep hill, 
and overgrown vegetation restricted the view of approaching 
trains. I come to you not as a grieving mother, but as a 
representative of the thousands of families that have lost 
loved ones in grade crossing accidents and who collectively 
have no representation or national voice. In this role, I will 
share with you some of what we have learned in the hope that 
needed change will be forthcoming.
    First, we have learned that following grade crossing 
accidents, it is automatically assumed that motorists are at 
fault because railroads have the right of way. But motorists' 
failure to yield is not the cause of accidents. Why they fail 
to yield is the cause. In some cases, as courts have affirmed, 
motorists couldn't see or hear the train through no fault of 
their own.
    Furthermore, many accidents occur in rural areas without 
eyewitnesses. Why should we rely solely on the railroads to 
identify causes of accidents that they themselves are involved 
in? When motorists are always blamed for accidents, self-
anointed good drivers will have a false sense of security in 
approaching dangerous grade crossings. We respectfully request 
that Congress should require the FRA to disallow railroads from 
identifying what they interpret to be, without investigation, 
the cause of grade crossing accidents on their accident 
reports.
    Second, we have learned that many unprotected crossings 
contain motorist sight obstructions on railroad property, 
obstructions that don't meet the standards of AASHTO or, in 
Ohio, State law. A few States have laws in this area, but they 
are inconsistent. It is illogical that while Federal 
legislation addresses sight distance standards for railroad 
operations, that there is no such law for protecting motorists. 
We respectfully request that Congress enact legislation that 
adopts AASHTO or similar motorist sight distance tolerances.
    Third, we have learned that railroads are overly 
influential in matters of grade crossing safety. They have 
authored affidavits for public officials in judicial 
proceedings, have partnered with the FRA on safety teams in a 
manner that seems uncomfortably close, and have dominated 
Operation Lifesaver. Partnerships are formed out of common 
interests, but railroads and public regulatory agencies have 
natural areas of conflict.
    It is an irony that we were denied a seat on Operation 
Lifesaver's Board of Directors because we were labeled 
advocates. Yet, their board is comprised of lobbyists, railroad 
personnel, and special interests. Yes, we are advocates, but 
for nothing else than public safety. We respectfully request 
that the Federal Government withhold its funding of Operation 
Lifesaver until its board is open to representatives of 
organizations such as ours.
    Fourth, we have learned that the system is inefficient. 
Railroads are awarded sole-source contracts to install gates 
and their expenditures are rarely audited. Isn't this a 
violation of the most basic of business principles? Based on 
our review of railroad invoices, we suspect that the 
installation of crossing gates is a railroad profit center. 
Railroads should not make money from publicly funded safety 
improvements. We respectfully request that Congress require DOT 
to ensure that when taxpayer money is used to install safety 
devices at grade crossings, competitive bidding and auditing 
are required.
    And, finally, we have learned that FRA and others have 
inappropriately taken much of the credit for the downward trend 
in accident rates over the past 30 years, when, in fact, the 
major factors were 25,000 new gate installations, closure of 
over 100,000 crossings, and downsizing and changing 
organizational structure of the railroad industry. 
Unfortunately, the accident rate increased in 2004 and 
dangerous crossings are plentiful throughout the Country.
    We respectfully request that when FRA and Operation 
Lifesaver come before Congress during appropriation hearings, 
that they be asked to show the value of their programs in ways 
that identify specific cause and effect relationships.
    Grade crossing safety shouldn't be a Republican or a 
Democratic issue. It is about public safety and saving lives.
    I thank you for the opportunity to appear before you today, 
and I will be pleased to answer any questions.
    Mr. LaTourette. Well, Ms. Moore, I thank you very much for 
coming here today and also for your testimony.
    One of the things that you didn't mention in your 
testimony, but I know, is that one of the things that you and 
your husband and your foundation do are to help find and locate 
funds to install grade crossing devices. Can you tell the other 
members of the Committee that may not be familiar with that how 
that works and what good work you have been doing?
    Ms. Moore. Since 1997, the foundation has traveled the 
State of Ohio, going to different counties and talking with 
local county officials, establishing county task forces. The 
purpose of each county task force is to locally identify and 
prioritize the most dangerous crossings for upgrades.
    Our foundation has set up a reimbursement grant program 
where we help fund, up to a certain percentage, the local match 
for installation of gates. To date, we have installed 14 sets 
of gates for over $400,000 in the State of Ohio.
    We also established an educational subsidiary called 
Crossing to Safety, which presents an unbiased, balanced 
message about railroad crossing safety and the actual causes 
for grade crossing accidents.
    Mr. LaTourette. I think, as I mentioned to you yesterday, 
and I think following up on some of the observations that Mr. 
Bachus made, the best way we can promote grade crossing safety 
is to make grade crossings safer. I talked a little bit about 
Congressman Kucinich's work, and other members will talk about 
the work that they have done, but I know that we have used TEA-
21 to install gates and lights at every crossing in my 
congressional district. That was in the wake of tragic 
accidents that had occurred.
    When you talk about bidding and costs, my recollection is 
that in that scenario--and I think we did 19 grade crossings--
working with the Ohio Rail Development Commission as the funnel 
for the Federal money, it was about $125,000 a crossing we 
experienced. What type of experiences have you had with price, 
say, from when you started to where it is now?
    Ms. Moore. We just installed three sets of gates in Medina 
County this past year, the prices averaged between $175,000-
$200,000. I am going to use the time period from 2002 to just 
last year--they averaged anywhere from $108,000 to the last 
crossings for the same equipment, same railroad, over 170-some 
thousand dollars.
    The State issues an apportionment letter to the local 
community with cost estimates. The cost estimates can be over 
$200,000. And that is something that we find hard to believe, 
that the cost of the gate installations have gone up that much. 
The costs prohibit communities from installing gates, which 
equals lost lives, because gates have been proven to be the 
safest form of protection.
    Mr. LaTourette. And are you finding that when you help 
finance a gate, is the gate constructed by the railroad or is 
it constructed by a subcontractor of the railroad, or does it 
differ?
    Ms. Moore. What we have found is it goes both ways. In Ohio 
we have seen where the railroads are subcontracting out the 
work to second sources, and there is no competitive bidding 
required when they subcontract the work out.
    Mr. LaTourette. Well, again, I want to thank you for your 
testimony, answering my questions. For the record, we will 
identify the good looking guy next to you as your husband, who 
is doing work with you as well. We appreciate your work.
    I am happy to yield to Ms. Brown for any questions she 
might have.
    Ms. Brown. Once again, thank you, Ms. Moore, for the work 
that you are doing. Is there anything else you want to add for 
us about The Angels on Track Foundation? And, Mr. Moore, do you 
want to add anything?
    Ms. Moore. One of the most important issues we feel 
Congress can address at this point is it has been proven that 
gates are 90 percent effective in saving lives, but we know it 
is impracticable to have gates installed at all crossings 
because of current funding.
    We recommend that a national rule be passed regarding 
motorist sight obstructions at crossings based on AASHTO and 
Federal Highway Administration standards to address vegetation 
and sight obstruction at crossings, because the motorist is 
required to yield. If you can't see down the tracks for an 
oncoming train because of sight obstructions, how can you yield 
to something that you cannot see?
    It also should be pointed out that the Code of Federal 
Regulations currently requires the railroads to go down their 
tracks twice a week, inspecting their tracks. While they are 
inspecting their tracks, they can also be looking for sight 
obstructions at the same time.
    Installing gates is the most important safety device our 
foundation promotes. Secondary to that would be eliminating 
sight obstructions at rail crossings so motorists can see.
    Ms. Brown. Mr. Moore, do you want to add anything?
    Mr. Moore. I think she does it all.
    Ms. Brown. Okay. One last question, Ms. Moore. Despite 
recent progress, the number of accidents, fatalities and 
injuries at grade crossings across the entire rail network have 
increased in 2004. If you could get Congress to do one thing 
you think that would improve the situation, what would that one 
thing be?
    Ms. Moore. I think we still, to this day, do not know what 
the actual causes for accidents are. We continually blame the 
motorists, without knowing the actual cause. I think 
installation of gates is a given; they are the safest form of 
protection device, but only 20 percent of the crossings in this 
Country have gates.
    We should have the Department of Transportation do a one, 
two, or three year study where they actually determine what the 
causes accidents. Was the crossing obstructed with vegetation? 
Did the motorist drive inappropriately? Did the railroad follow 
safety procedures? Were the gates and lights functioning 
properly? These are all causes for accidents.
    Until we honestly know what causes accidents, I don't think 
that we can address this issue. Currently we believe, based on 
personal experience with our older son who was driving the car, 
when there is this type of accident, it is always assumed it is 
the driver's fault. Had I been driving the car that day, the 
same thing would have happened. You couldn't see down the 
tracks and there were no gates to protect you.
    So I guess that is my answer.
    Ms. Brown. Yes, Mr. Moore.
    Mr. Moore. Also, the accident report that is filled out 
after a railroad accident is sent in by the railroad. It would 
be like if you had a crash in your car with another car, there 
is no police, you fill out the report and send it in. You are 
not going to blame yourself. And this is what we found.
    There is a case in Illinois where the signal system was not 
working, completely shut off; they had it jumpered out. FRA and 
the State officials filled out the accident report before an 
investigation, and blamed it on the driver. It wasn't the 
drivers' fault. The only reason they found out there was a 
problem was because they caught the railroad employee removing 
the jumpers. They actually had a camera because it was a new 
crossing.
    This stuff goes on all the time. If you have FRA basically 
lying and you have the local officials lying about the 
crossings, nothing is ever going to change--you can do all the 
studies you want--unless you change the reporting-system of the 
accident report.
    Ms. Brown. Thank you.
    I yield back to Ms. Carson for questioning.
    Ms. Carson. I apologize initially, I didn't realize that my 
microphone wasn't on. You were bowing up and down. I guess you 
didn't want to hear me talk anyway, and I didn't want to hear 
me talk anyway either.
    [Laughter.]
    Ms. Carson. I was a member of the Indiana General Assembly 
in the 1980s. There was an organization called Operation 
Lifesaver who worked with us on the safety of railroad 
crossings. Does that group still exist?
    Ms. Moore. Yes, it does.
    Ms. Carson. Is it under your--it is independent?
    Ms. Moore. Right. It is another non-profit railroad safety 
foundation.
    Ms. Carson. Are any of those groups actually documenting 
the cause of accidents at railroad crossings?
    Ms. Moore. Operation Lifesaver, from my understanding, is 
an organization to educate the public. Unfortunately, we do not 
support their message because we do not feel they address all 
causes for grade crossing accidents. They primarily blame the 
driver or the motorist. They rarely address railroad 
responsibility for crossing accidents or railroad's shared 
responsibility for the safety at grade crossings.
    Our foundation is also a privately funded railroad safety 
foundation; we are a 501(c)(3). We present communities and the 
people we talk to a balanced message. We understand drivers can 
make inappropriate decisions. But we also address other factors 
that cause accidents, such as lack of protection, meaning lack 
of gates. Even if there are gates at crossings, they can and do 
malfunction.
    Gates are required to work in a fail-safe mode, giving the 
motorist a minimum of 20 seconds warning. That does not always 
happen, and accidents have happened at crossings with gates. 
Blocked crossings. Railcars are not required to be 
reflectorized. I believe the FRA has given the railroads an 
additional 10 years to reflectorize all of their rail stock. We 
have families that we know that have lost loved ones at night, 
at unprotected, non-illuminated crossings because they ran into 
the side of railcars.
    We believe education is important. We support Operation 
Lifesaver in part, but we do not support their message until 
they address the other side of the story, which includes 
inappropriate behavior by the railroads not following required 
safety procedures in addition to existing hazards at crossings 
that cause accidents, not just driver error.
    Mr. LaTourette. I thank the gentlelady very much.
    Ms. Carson, on the third panel the president from Operation 
Lifesaver will be here, if you maybe have some questions at 
that time.
    Mr. Bachus.
    Mr. Bachus. I thank the Chairman.
    Let me tell you my experience with grade crossings. And it 
is certainly not the personal, traumatic experience that you 
have, but I actually have represented probably 20 families in 
grade crossing accidents. And I think I still have the largest 
jury verdict in the State of Georgia, at least at the time I 
came to Congress. It was $2 million at that time on a grade 
crossing case. So I am well aware that there are cases where 
the sight distance violates AASHTO standards, as they did in 
that case. And there was some other misconduct in that case.
    I have represented the railroad. I have defended these 
cases. I am probably one of the few people in Congress that 
actually has five or six books that are on grade crossing 
accidents, and I have read the whole thing. It is a complex 
issue, but what I would say is very simple about it. And you 
said this. And I think whether it is Operation Lifesaver, you, 
anybody that is familiar with these things, they can all be 
eliminated, almost all of them, by separating the track from 
the rail; and that takes a lot of money.
    Now, I can tell you that the railroads don't have that 
money. If you look at return on investment, railroads are at 
the bottom. If you take 100 industries in this Country, in 
fact, many of them many years lose money. That doesn't justify 
them not doing things right.
    But I can tell you that in probably 95 percent of the 
cases--and this is every study that has ever had--there is some 
driver error. Now, I will say this. The sight distance, it 
sometimes takes a combination.
    Also what people don't realize is with AASHTO standards, 
they sometimes require 300 feet before the crossing. And the 
average length of a right-of-way is 15 feet by the railroad. So 
you have got 15 feet of property that the railroad owns, but 
you have hundreds of feet that maybe some farmer owns.
    Ms. Moore. Can I respond to what you just said, sir?
    Mr. Bachus. Yes.
    Ms. Moore. We recently completed a pilot study in Huron 
County, Ohio to address sight distances along railroad rights-
of-way. What we have found is that most local communities have 
no idea where the railroad property lines exist. We requested 
that the county engineer go to the tax plot maps and find out 
where railroad property and private property came together, and 
we found that railroad property measured anywhere from 33 feet 
to 75 feet.
    In Ohio you have a sight distance requirement for 
vegetation clearance of 600 feet down the track, both 
directions, on railroad property. And what was happening was 
the railroads were coming in and clearing down the tracks, 
using the crossbuck sign, which is usually 10 to 15 feet out, 
and clearing. Well, that wasn't following the Code. The code 
said railroad property. Now, that meant, if it was 33 feet on 
both sides, clear 33 feet. If it went out 75 feet, clear 75 
feet.
    So I understand what you are saying, but I think you will 
find in most States the railroads are not clearing their 
rights-of-way.
    Mr. Bachus. The public isn't either, the private property 
owner, many times, too. We just had a case on eminent domain, 
where there is a lot of strong feelings about can you make a 
property owner do something on their property that is not in 
their interest. For instance, the railroads, they would 
probably not maintain half--they would probably clear about 
half the vegetation they do today if it weren't for sight 
distance requirements. And the cost of that is literally 
billions of dollars. And they do that for the benefit of the 
traveling public.
    Now, it is a law; they are often required to do that. But 
what I am saying, the solution to this is--because the road, as 
I said to start with, the road was put in after the railroad 
track, in all likelihood--is for the public to put--and I will 
tell you. I don't know if trains were operating above 30 miles 
an hour at this crossing or not.
    Ms. Moore. The crossing where our son was killed?
    Mr. Bachus. Yes.
    Ms. Moore. Was 60 miles an hour.
    Mr. Bachus. Sixty miles an hour. And you had crossbucks.
    Ms. Moore. Crossbuck only.
    Mr. Bachus. And I will tell you that the city or the county 
that that is located in should have picked up the expense and 
they should have gates and lights at that crossing. To have 
crossbucks on a 60 mile track--now, in rural areas, it is very 
hard for a rural county to afford that, but if you have got a 
60, you are talking about basically a transcontinental or 
interstate track.
    And the only solution of a train going 60 miles an hour, 
you are going to have my children or, in your case, your 
children--I am scared to death of grade crossings. They are a 
tremendously dangerous place. Inattention. I have had a case 
where there were four young girls leaving a Christian camp, 
they were counselors at a camp. And they were laughing and 
talking.
    The sight distances were--we were able to prove that they 
didn't meet the standards and the railroad was hit with a 
considerable amount of money. But they were also inattentive. 
But that is what we all are. They weren't familiar with this 
crossing. They had been over it one time in their life; the 
second time they were dead.
    But I can guarantee you that if you want to eliminate them, 
you put a duty on the governmental agencies to maintain those. 
And the cost of that is probably eight times what we are doing 
today, but we would save thousands of lives a year. And we have 
at least one fund that is set up to haul nuclear waste at some 
point to Nevada. When we start hauling nuclear waste, there is 
another reason to protect those crossings.
    And what you ought to do on any 60 mile an hour crossing, 
with maybe--there are always exceptions, but every one of them 
ought to be protected, because somebody is going to get killed 
there, particularly when you have got a combination where you 
can't clear back 600 feet. Ninety percent of those you are 
talking about private property, and that is the reason you 
can't do it.
    Mr. LaTourette. Could I ask you to sum up, Mr. Bachus?
    Mr. Bachus. But I very much know your children probably did 
nothing that we have not all done 100,000 times, and they just, 
unfortunately, were, you know, and I am very sorry for you. It 
has got to be a horrible time.
    Mr. LaTourette. I thank the gentleman.
    Mr. Blumenauer.
    Mr. Blumenauer. Thank you.
    I particularly appreciate your focusing on very specific 
things that you think will help make a complete picture and 
make the system that we have now work. Mr. Bachus raises an 
important point. We face risks every day, whether it is 
children bicycling to school, where there are no grade 
crossings, but there are problems with autos. Others have 
referenced problems with terrorism. I mean, there are a whole 
range of things out there that we would like to make our family 
safe and secure.
    Your particular sort of hardheaded, clear-eyed testimony I 
think is helpful in terms of dealing with the system that we 
have got now, to understand it and to think about ways that we 
can expand upon it. And I just would like, if you would, 
briefly comment on the notion of how we equip ourselves to 
understand how to make the best of the partnership, 
acknowledging that this is a system that has grown up; the 
communities are different, the railroad industry is different, 
we don't have unlimited money, and time is of the essence.
    Your testimony--and we are going to have some great things, 
I think, that are going to come forward from Mr. Mead. There 
are some interesting things from the Inspector General. We have 
representatives from the industry to talk about what they are 
doing and where we go from here.
    But your focus, if you would, on ways that we have right 
now to make the system work better. I think your husband may 
have referenced just accident reports. It appears that there 
are gaps just in terms of getting the information out. One may 
question whether or not it is impartial if we are self-
reporting. We can talk about that in protections.
    But my understanding is that we are not getting all the 
reports that are due. You mentioned issues of right-of-way 
maintenance in your community, where there are questions that 
have arisen. Not talking about whether it is perfect, but just 
this appears to--are there other areas that occur to you where 
we either can get more information based on how the system 
works or if there appear to be simple, common sense or legal 
requirements that would make a difference?
    Ms. Moore. The first thing that comes to my mind is a grade 
crossing is shared by a railroad and the public, which means 
the railroads have a shared responsibility for public safety. I 
don't think crossing safety should be looked at as only a local 
issue or just a highway issue. Railroads own part of the 
crossing, so they have a shared responsibility.
    I brought up the fact that gates are the most important and 
most effective protection device. Yet, only 20 percent of 
public crossings have gates. If you can't install gates because 
of funding, then the next best safety enhancement would be to 
ensure motorists have clear lines of sight.
    A recent National Transportation Safety study cited sight 
obstructions, I believe, in 57 percent of the studied 
accidents. They found that sight obstructions contributed to 
accidents.
    I believe this hearing is about saving lives. If it is not, 
then I guess my husband and I are here wasting our time. I know 
had the crossing where my son was killed and his two friends, 
if it would have been protected with gates--and let us say the 
gates weren't working--if my son could have seen down the 
tracks, the accident would not have happened.
    I believe secondary to installing gates it is imperative to 
determine the true causes for accidents, rather than assuming 
it's always the driver's fault. That starts with the accident 
report. There is a box that is filled out and it is marked 
failure to yield. Well, that is an assumption of blame on the 
motorist. So right off the bat the motorist has a failure to 
yield citation. Well, that is not telling you what caused the 
accident; that is the result of the accident.
    I believe if you want to stop these accidents from 
happening, our suggestion was that the Department of 
Transportation do a study where you find out what actual causes 
are. If it is sight obstruction, then that is what you need to 
address and pass a national rule. There are no Federal sight 
distance requirements currently for public safety; they only 
address railroad operations. That, to me, is of utmost 
importance. There has to be a national standard all across the 
Country, uniform.
    There is also a problem with crossing protection; there is 
no uniformity from State to State. If you can't have gates at 
crossings, then have uniform sight distance requirements. A 
rule giving motorists the ability to be safe, to see down the 
tracks for an approaching train.
    So I guess sight distance comes to my mind.
    Mr. Blumenauer. Thank you. I appreciate it.
    Thank you, Mr. Chairman.
    Mr. Moore. Could I say one thing? The train crossings have 
been around for hundreds of years, and we still haven't 
installed gates or proper protection at all crossings. I think 
100 years--we went to the moon. We have gone to a lot of 
places. But we still haven't protected our public at grade 
crossings. I just think it is time to do so.
    Mr. LaTourette. I thank you very much.
    Ms. Johnson?
    Ms. Johnson. Thank you very much, Mr. Chairman.
    I will ask unanimous consent to put my statement in the 
record.
    Mr. LaTourette. Without objection.
    Ms. Johnson. I was sitting here thinking, in my area we 
have had a real decrease in accidents, and when we first 
started light rail, the people indicated they couldn't hear the 
train coming. We do have a little whistle and we have the gates 
as well, but the accidents we had initially happened in spite 
of that. People thought they could beat the train, and it was a 
fairly rapid rail. They didn't find at any of those 
investigations that it was the rail system's fault.
    And I know how frustrating that must be for someone who has 
an accident with a rail. I am just wondering whether or not 
there would be a way to determine whether it is the fault of 
the rail system when an accident occurs if you have lights 
blinking or any other sign. I am not trying to put blame 
anywhere, but I am trying to get around to asking a rather 
delicate question. What would you suggest that we look at to 
determine that it is not the pedestrian or the driver's 
negligence to get them on the track during that time?
    Ms. Moore. Well, I will go back to my earlier statement 
that your chances of coming to an unprotected non-gated 
crossing is more likely than coming to one with gates, because 
only 20 percent of the crossings in this Country have gates. 
And the crossing where my son was killed was not protected with 
gates. He didn't have the luxury of a gated crossing.
    In my mind it goes back to the accident reports. That 
information is filled out by the railroads, which is then given 
to the FRA and the NTSB, who then come up with their safety 
statistics, and from those statistics they determine accident 
causes and policy changes. If you start with an accident report 
that isn't telling you what caused the accident, everything 
from that point on is not addressing the issue.
    Do you follow what I am saying? So I guess that is my 
answer.
    Ms. Johnson. Were there any signs at all, were there 
blinking lights?
    Ms. Moore. At the crossing where my son was killed?
    Ms. Johnson. Yes.
    Ms. Moore. There was a--in Ohio we have two types of 
crossbucks: we have a regular crossbuck, which is just the sign 
that says Railroad Crossing and then we have "Buckeye" 
crossbucks, which have a reflectorized shield. They are 
supposed to pick up the ditch lights from the train. Our 
crossing had "buckeye" crossbucks, only a sign which does not 
tell you a train is coming nor does it protect you.
    It had a 16 percent grade. You couldn't see down the 
tracks. It was like going down a tunnel. And as I had stated 
before, had I been driving the car that day, the same result 
would have happened, because there were no gates to tell you to 
stop, or warn you a train was coming, and you couldn't see down 
the tracks.
    My older son who survived actually kept moving his car 
forward, looking to the left and the right. When he looked to 
the left, he could see there was no train, but he couldn't see 
to the right, so he kept inching forward, the whole time 
looking. By the time he could see to the right, the train was 
to the left. Three seconds later, Josh, Allison, and my son 
Ryan were dead. That is what happened.
    Ms. Johnson. Thank you very much. I am sorry that happened. 
I am trying to conclude in my own mind what we need to 
recommend for sure that would help to prevent such an accident. 
Thank you very much.
    Mr. LaTourette. I thank the gentlelady.
    We have been joined by Congressman Ney. Actually, the 
Moores are residents of Congressman Ney's district, is my 
understanding.
    Mr. Ney?
    Mr. Ney. Thank you. Thank you for letting me sit in here 
today. I wish I could have been here the whole time we talked 
and got to testify. I just wanted to--again, I am sorry for 
your loss, as we discussed before, the loss of your son. I 
think there several issues have been raised: how the reports 
are filled out and the safety issues.
    I want to thank Congressman LaTourette for the hearing.
    I think your being here today is worthwhile, and we want to 
look down the road to look at the issue in a total, 
comprehensive way. So I just want to thank you for being here 
today.
    Ms. Moore. Thank you for the opportunity.
    Mr. LaTourette. I thank you, Mr. Ney.
    And again, to both of you, I want to thank you very much. I 
would want to indicate to you I don't think your being here is 
a waste of time. I know I wrote down what it is that you are 
asking of the Federal Government. I am sure all other members 
did as well. And our challenge is to receive the rest of the 
testimony today and to figure out collectively and individually 
what we think we need the Federal Government to do.
    I would follow up on some of Mr. Bachus' observation. I 
want you to know I heard what you said about Federal 
regulations for sight distances, but I think he makes more than 
a good point. When you deal with sight obstructions that have 
to do with curvature and topography and all variety of things 
that fall under the bailiwick of the locals and the States. I 
think you have given us a big bunch of information to chew on, 
and how we make all that work with all the interplays of the 
various local levels of government is going to be a challenge.
    But, again, I thank you for coming and I thank you for 
testifying. I thank you for not only your testimony, but the 
exhibits that you attached to your testimony as well.
    Mr. Bachus. Mr. Chairman, I want to thank you for your 
courage. I think we have all seen crossings that are just 
inherently dangerous, and I strongly believe, after seeing 
these for 20, 25 years, that the public--the counties, the 
cities, the States--have got to be more forceful.
    And I will tell you that when you set the gates and lights 
up, what you will have is you will have people knocking the 
gates down. And the railroad will pick up that expense. And it 
is a tremendous expense for them to maintain it. So it is not 
as if they are getting away without doing anything.
    But I think there is a strong public obligation for the 
Federal Government and the State and the county and the city, 
first of all, not to--I have not seen this crossing, but I am 
going to assume from what I have heard from you that it 
shouldn't be in the state it is in. I think that is a safe 
assumption. And I think that the governmental bodies shouldn't 
be exonerated in this case.
    Mr. LaTourette. Mr. Bachus, thank you.
    Ms. Brown, do you have something?
    Ms. Brown. Yes. I just want to finally thank you once again 
for coming as my guests. I hope you know that your valuable 
time is very, very appreciated. We have all learned a lot from 
the amount of time that the Chairman has given you is a real 
learning experience, and we usually don't extend this much 
time. So I want you to know that we very, very much value your 
participation, your coming. And we are going to try to get some 
follow-through, in addition.
    Mr. LaTourette. Again, thank you very much for coming.
    Ms. Moore. Thank you very much.
    Mr. LaTourette. Thank you.
    We will move to our second panel. And I would advise the 
second panel, as they sit down, we have been notified that a 
series of votes may occur in the next couple of minutes, but we 
will try to do as much as we can in the second panel before we 
move forward.
    And on the second panel we are fortunate to have, I think 
on his maiden voyage of testifying, at least before this 
Subcommittee, the new Administrator of the Federal Railroad 
Administration, the Honorable Joseph Boardman. We are also 
fortunate enough to have the Inspector General from the 
Department of Transportation, the Honorable Kenneth Mead; and, 
lastly, the Acting Chairman of the National Transportation 
Safety Board, the Honorable Mark Rosenker.
    So, gentlemen, we thank you all for coming. We have 
received your testimony and we have reviewed it. The lights, 
for those of you that haven't testified before, go from green 
to yellow to red. If you can confine your remarks to five 
minutes, we would appreciate it. And hopefully we can get your 
testimony in. I don't think we will be able to do testimony and 
questions before we have to break, but we would at least like 
to get as much testimony as we can.
    So, Mr. Boardman, welcome. Thank you for being here, and we 
look forward to hearing from you.

    TESTIMONY OF JOSEPH H. BOARDMAN, ADMINISTRATOR, FEDERAL 
 RAILROAD ADMINISTRATION; KENNETH M. MEAD, INSPECTOR GENERAL, 
    DEPARTMENT OF TRANSPORTATION; MARK V. ROSENKER, ACTING 
         CHAIRMAN, NATIONAL TRANSPORTATION SAFETY BOARD

    Mr. Boardman. Thank you, Mr. Chairman.
    Mr. Chairman and members of the Subcommittee, I appreciate 
this opportunity to appear before you on behalf of Secretary 
Mineta. This is my first hearing as the new railroad safety 
administrator of the United States.
    I have found that grade crossing safety has improved 
dramatically since the mid-1970s. In 1975, there were over 
12,000 crossing collisions and 917 deaths. In 2004, those 
numbers were 3,050 and 368 deaths, a 75-percent reduction in 
collisions and nearly 60-percent in deaths.
    I found that the first safety action needed when I arrived 
seven weeks ago was to reject a request to delay the train horn 
rule from going into effect on June 24th. It was requested that 
I exercise my authority to issue an emergency delay of its 
implementation. For me, that would have been the wrong signal 
to send. I am told that emergency authority has been used only 
23 times in the 35-year history of the FRA. I am not here to 
delay safety improvements, but, rather, to enable them.
    Since June 24th, over 220 Quiet Zone corridors have been 
designated in accordance with the rule. In fact, most of the 
plans that FRA has received for the establishment of new Quiet 
Zones have included significant improvements to crossing 
safety.
    This rule fits very well into the three Es of grade 
crossing safety: engineering, education, and enforcement. It 
has been since 1994 that Congress enacted the so-called 
"whistle ban" statute, directing the FRA to require the 
sounding of train horns at crossings, unless a community 
adopted one or more safety measures that satisfied the statute. 
The FRA was required to hold hearings and establish regulations 
that implemented the statute, and I am happy to say that has 
been done. And we look forward to making substantial progress 
in reducing deaths and injuries at grade crossings as a result.
    Railroad safety is measured in numbers, as is anything we 
wish to improve: by knowing where we are, knowing where we have 
been, and where we are going. I expect today you will hear lots 
of numbers. And if you read the testimony I have submitted for 
the record, you will see lots of statistics. But I am not going 
to list those in my oral testimony because railroad crossing 
safety is about people, and not numbers.
    One of the other things I found at the FRA is that they 
take every accident, incident, loss of life as serious. It is 
people that die or are injured. It is people that operate the 
trains, the trucks, the buses, the cars. It is people that 
trespass or cross as pedestrians. Eight hundred and fifty one 
of them lost their lives last year at crossings or by 
trespassing, and another 1,469 of them were injured. That is 
where the statistics come in. Because in 1994, 1,144 lost their 
lives, and 2,413 were injured.
    I believe everyone agrees that it was a significant 
accomplishment, and it is people that should be complimented 
for that. It is many of the people that are here today; those 
that wrote the first crossing action plan in 1994, those who 
updated and published a new plan in 2004, and adjusted it again 
just this year, with the national inspection plan released in 
May of 2005; it is a Secretary committed to safety; it is 
Operation Lifesaver, and the Association of American Railroads 
and the Brotherhood of Railroad Signalmen; it is our IG, Ken 
Mead; and it is the National Transportation Safety Board and 
States and others.
    But it is also members of Congress, those of you that are 
now being called upon to understand that in order to achieve 
even more dramatic improvement for the future, it will require 
difficult decisions, such as the train horn rule.
    None of us should delay; not government at any level, 
industry, labor, or publicly interested persons in rail safety. 
The Secretary, through the FRA, has a plan for improvement, and 
the plan still includes engineering, education, and 
enforcement. But it also includes establishing 
responsibilities, improving data collection, conducting 
analysis and research, improving emergency notification, 
issuing safety standards, and evaluating results for 
effectiveness.
    It also includes a shared responsibility with all five 
surface transportation agencies: the Federal Highway 
Administration, the Federal Motor Carrier Safety 
Administration, the National Highway Transportation Safety 
Administration, the Federal Transit Administration, and, yes, 
the Federal Railroad Administration. In addition, it includes 
supporting the Department of Homeland Security and the 
Transportation Security Administration as they achieve greater 
security for our transportation network and our citizens.
    Thank you for your attention. Together we have made a 
difference. Together we will continue to do so. I am happy to 
answer or find the answer to any question you may have.
    Mr. LaTourette. Well, Administrator Boardman, I thank you 
very much.
    As the sound indicates, we now have a series of votes. And 
because of the nature of the Inspector General's testimony, I 
don't want to have it rushed or interrupted, so my 
predisposition is to recess at this time, have the votes, and 
come back. I apologize for the inconvenience, but if you just 
stand at ease, we will be back as quick as we can.
    The Subcommittee will stand in recess until the conclusion 
of the votes.
    Mr. Bachus. Mr. Chairman?
    Mr. LaTourette. Mr. Bachus?
    Mr. Bachus. I am just wondering if in this case--I know I 
am very interested in this testimony, and a lot of us have 
lunch events that we are going to from 12:00 to 1:00. I don't 
know when these gentlemen are intending on eating, but I am 
just wondering, because of the votes, if you would consider 
maybe a lengthier recess.
    Mr. LaTourette. You want to have lunch?
    [Laughter.]
    Mr. Bachus. You know, I want to have it all; I want to have 
lunch and I want to be here.
    Mr. LaTourette. Well, how about 12:30? Is that enough?
    Mr. Bachus. Actually, I will be back at 1:00. If you keep 
it going until 1:00--
    Mr. LaTourette. I tell you what. We will make everybody 
keep talking until you get back.
    Mr. Bachus. Thank you.
    Mr. LaTourette. Okay. So that everybody can go get a bite 
if you want, why don't we plan on voting and being back in our 
chairs at 12:30?
    [Recess.]
    Mr. LaTourette. I call the Subcommittee back to order.
    Our hearing is going to resume. When we recessed we had 
received Administrator Boardman's testimony. We now move to 
Inspector Mead. Thank you for being with us through the long 
delay. We are ready to hear from you.
    Mr. Mead. Thank you, Mr. Chairman. We have issued major 
grade crossing safety reports in 1999 and 2004, we have another 
one in process. Our testimony is largely based on that body of 
work. I am not going to review the statistics about this 
program except to say that in 1993 the Department set goals to 
reduce crossing fatalities and collisions by 50 percent.
    In 1994, there were 626 fatalities and that has dropped to 
332 in 2003. I think, if the truth be told, there are not too 
many programs in Government that require such a partnership of 
the governments, State, local, Federal, private industry, and 
so forth that can point to those types of results. I also think 
that Operation Lifesaver deserves a lot of credit here, and 
groups like the Angels on Track Foundation.
    I very much appreciated listening to Mrs. Moore's testimony 
before the lunch hour. Last year, though, as a number of people 
pointed out, some ground was lost. Grade crossing fatalities 
tallies rose 11 percent to 368.
    You should know that further progress is going to be more 
difficult. A lot of the progress has been what I would call 
``low-hanging fruit,'' a lot of that low-hanging fruit has been 
picked. A lot of that progress has come from closing thousands 
of crossings, literally getting rid of them, and installing 
automatic gates and flashing lights at crossings with a high 
probability for collisions.
    Automatic warning devices though do not prevent all 
accidents. In fact, 49 percent of the accidents that occurred 
over the last five years happened at crossings that, indeed, 
did have active warning devices. Railroad accident reports 
attribute about 90 percent of crossing collisions to reckless 
or inattentive motor vehicle drivers rather than the trains or 
broken crossing devices, a point I will come to later.
    I think, we watch this program pretty closely, to its 
credit the Department is continuing its focus on grade crossing 
safety. They have issued new safety rules requiring reflective 
stickers, strengthening requirements for sounding horns, 
improving locomotive event recorders.
    Last year's news reports raised questions about the 
reporting and investigation of grade crossing collisions. 
Representatives Oberstar and Brown, Senators Hollings and 
Inouye and, also Senator Lieberman had some interest in this 
matter. Our work is not yet complete, but I want to preview for 
you three findings relating to one, accident reporting; two, 
crossing collision investigations; and three, safety 
regulations enforcement. We find clear room for improvement in 
each of those areas.
    The first area. We found that the railroads failed to 
report 21 percent of serious crossing collisions to the 
National Response Center. FRA can clearly do more to enforce 
that reporting requirement. The 21 percent of serious crossing 
collisions is a big number, that is a fifth.
    Railroads are required to report serious crossing 
collisions to the National Response Center immediately so the 
Federal Government can properly respond. Our analysis showed 
that 115 of the 543 crossing collisions that occurred between 
May 2003 and December 2004 should have been reported to the 
National Response Center but were not reported at all, let 
alone being reported in a timely way.
    These collisions were ultimately reported to a separate 
database at the Federal Railroad Administration within 30 to 60 
days after the collision. But in our view, that is too late to 
allow the Federal authorities to investigate the accident or 
otherwise take prompt action. The good news here is that FRA 
has begun reconciling its own database with that of the 
National Response Center and has told us that they now plan to 
start penalizing the railroads when they do not report.
    Now part of the under-reporting problem stems from deaths 
that occur after the accident; somebody gets seriously injured 
at the accident, the ambulance comes, they go to the hospital, 
they die at the hospital, they do not get reported because they 
did not die at the actual scene of the accident. There is also 
some confusion over what should be reported in the first place.
    I want to point out here we do not have any evidence that 
the railroads were deliberately covering up data, deliberately 
not reporting it. We think there is some clarity that needs to 
be brought to reporting requirements and we think there are 
some fairly easy fixes here. Certainly, somebody that dies in a 
hospital as a result of a grade crossing accident is dead just 
as surely as somebody that dies right on the scene.
    Point two. The Federal Government investigates very few 
crossing collisions. This is much different from other areas in 
transportation, such as aviation. We think FRA needs to develop 
strategies to increase its involvement in investigations. We 
found that FRA investigated 9 of the 3,045 crossing collisions 
that occurred in 2004.
    Specifically, they investigated 47, or 13 percent, of the 
376 most serious crossing collisions that occurred in the last 
five years. So this is not just something that has been going 
on for just one year; it is a five-year pattern. No Federal 
investigations were conducted for the other 329 serious 
crossing collisions.
    FRA told us that the National Transportation Safety Board 
is the lead Federal agency responsible for investigating 
accidents, not them. That may be true. NTSB tends to 
investigate only the most high-profile crossing collisions, and 
conducted seven crossing investigations from 2000 to 2004. Now 
the real important point here is that because the Federal 
Government does not independently investigate most of these 
collisions, the information that FRA gets concerning the causes 
comes almost exclusively from self-reporting by the railroads.
    The railroads' accident reports, as I said earlier, 
attribute about 90 percent of the collisions to motorists, and 
FRA usually does not conduct its own investigation to verify 
those findings. I think there are some things they can do here. 
For example, they do not routinely review the event recorder 
data, that is the locomotive's event recorder, they do not 
routinely get the State and local police reports of the 
accident, and they do not routinely get the State railroad 
inspectors' collision reports.
    We believe that collecting information from those other 
sources about crossing accidents would improve their ability 
both to understand qualitatively the causes of the accident, 
and also to help better target investigations of those 
accidents it decides should be investigated.
    Final point. We think FRA ought to beef up its enforcement 
of grade crossing safety regulations. FRA identified over 7,490 
critical safety defects related to railroad crossing signals 
from 2000 to 2004, that was out of about 69,405 problems they 
identified related to crossings. So 7,490 critical safety 
defects, they recommended only about 5 percent, or about 347, 
of these for violations, which carry a fine. These defects 
among other things, include the failure of a signal to activate 
or the failure of a railroad employee to repair a signal 
malfunctions in a timely manner. FRA collected only $271,000 in 
fines from all railroads in 2003 for grade crossing signal 
violations.
    I think they need to consider whether the small number of 
violations and the low amount of fines sufficiently encourage 
railroads to better comply. I want to note that this year, 
almost contemporaneous with the issuance by the Department of a 
National Rail Safety Action Plan, FRA assessed one railroad 
$298,000 for grade crossing safety issues related to a single 
accident in the State of New York.
    That fine was larger than the total of all crossing signal 
fines imposed upon all railroads in 2003. A penalty of that 
size I think will get the attention of the railroads. Thank 
you.
    Mr. LaTourette. Thank you very much, Mr. Mead.
    Now the Acting Chairman of the National Transportation 
Safety Board, Mark Rosenker. Thank you for being here, and we 
look forward to hearing from you.
    Mr. Rosenker. Thank you, Mr. Chairman. Good afternoon, 
Chairman LaTourette, Ranking Member Brown, and distinguished 
members of the Subcommittee. Thank you for the opportunity to 
testify before you on behalf of the National Transportation 
Safety Board. All agree that grade crossing accidents are 
tragic events and we appreciate the serious attention that this 
Subcommittee is devoting to this important safety issue.
    The Safety Board has long been interested in the adequacy 
of a train's audible warning system to alert motorists of the 
train's presence at grade crossings. We have examined this 
issue in a variety of accidents and not that while horns can be 
effective, they can also fail to communicate the intended 
warning. The sound of a train horn is an effective warning only 
if the driver recognizes it as a train horn and takes the 
appropriate action. This recognition is affected by noise 
levels inside the vehicle and by the soundproofing designed to 
cut down outside noise.
    In 1986, the Safety Board conducted a study of passenger/
commuter train and motor vehicle collisions at grade crossings 
and found that in 27 of the 75 accidents investigated the 
occupants of vehicles could not hear the audible warning system 
of the train. We concluded that train horns should be improved 
to better address that audibility concern.
    The Safety Board has been particularly concerned with the 
potential for grade crossing accidents involving school buses 
and the sound dampening characteristics of these vehicles. We 
have investigated two school bus accidents of special note--Fox 
River Grove, Illinois in 1995, and Conasauga, Tennessee in 
2000. Audibility tests conducted in conjunction with these two 
accidents helped frame the nature of the problem.
    Research has shown that detecting a sound will not lead to 
appropriate action unless the sound is identified or has 
reached the alerting level. If a sound is to be identified, the 
warning signal must be three to eight decibels above the 
threshold of detection. If a sound is to reach the alerting 
level, the warning signal must be approximately 10 decibels 
above ambient noise. In the Fox River Grove accident, our tests 
indicated that the train horn did not exceed ambient noise 
levels until 1.1 seconds before impact. In the Conasauga 
accident, the driver had difficulty detecting the train horn at 
all.
    In a 1998 safety study, the NTSB tested the audibility of a 
train's horn within 13 passenger and emergency vehicles. When 
the windows were closed and the engines were idling, the sound 
of the horn was loud enough to alert the drivers of 5 out of 13 
of the vehicles. When fans were turned on, the horn was not 
audible at all in seven of the test vehicles. Nevertheless, the 
train horn is an important part of grade crossing safety. It 
should be sounded unless other actions are taken that act as an 
effective substitute at crossings.
    In an effort to find such effective substitutes, the NTSB 
issued a recommendation to DOT to develop and implement a field 
test program for in-vehicle safety and advisory warning 
systems, variable message signs, and other active devices, and 
to modify those applications for use at passive grade 
crossings. These technologies, particularly in-vehicle warning 
systems, can help enhance safety at passive grade crossings. 
Such in-vehicle warning systems are a potential solution to the 
audibility problem that drivers encounter.
    The cost to eliminate or upgrade passive grade crossings is 
high. However, even expensive gates and lights do not 
completely eliminate the hazards at crossings. The ultimate 
solution from a safety standpoint would be the construction of 
bridges or underpasses that eliminate grade crossings. However, 
in our 1998 study, the Board recommended that a viable, less 
costly remedy is to install at passive crossings STOP and STOP 
AHEAD signs. By placing a stop sign at a passive crossing, a 
clear, unambiguous message is sent to the driver so that the 
driver knows both where the crossing is and what action must be 
taken.
    In response to that safety recommendation, two 
organizations have proposed combining the crossbuck sign with 
either a stop or a yield sign, and FHWA is considering issuing 
interim guidance on this issue to the States. This is a 
positive step and I look forward to seeing the final guidance 
put forth by the FHWA.
    Thank you, Mr. Chairman, for the opportunity to testify. I 
am available to answer any of your questions.
    Mr. LaTourette. Chairman Rosenker, we thank you very much 
for your testimony. Thank you all for your testimony.
    I want to clear up something with you, Mr. Mead, before I 
go on to some other questions. That 21 percent is a pretty big 
number, as you indicated, and my question is, are the railroads 
failing to report 21 percent of all accidents at-grade, or are 
they not reporting them to all of the agencies that they are 
required to? Do you understand my question?
    Mr. Mead. Yes, I do. There is an FRA database that they are 
reporting to. That is not the National Response Center 
database. The National Response Center database is one that is 
supposed to be reported to immediately when the accident, or 
grade crossing collision in this case, meets certain criteria 
that are defined. That was what the 21 percent figure referred 
to.
    Mr. LaTourette. So are they reporting to the FRA but not 
filing the same or a similar report with the National Response 
Center, or are they not filing even with the FRA?
    Mr. Mead. No, they are filing with the FRA. Their problem 
is that the National Response Center report is supposed to be 
filed promptly so it gives them a chance to take a look at the 
profile of the accident, decide what they want to do about it. 
If you have an accident on July 1, for example, you have until 
August 30 to report it to the FRA. The National Response Center 
will get a report of that accident on the very day of the 
accident, if everything is operating correctly.
    Mr. LaTourette. Okay. Is there, and maybe your analysis did 
not go this deep, do you find that for most of the reporting to 
the FRA they take the entire two months? I guess I am asking is 
this a matter of maybe the FRA should be sharing with the 
National Response Center, or is this, if they get 60 days, they 
take 60 days to report, whereas if they were reporting to the 
National Response Center, as you said, we would have it on the 
day of the accident, or shortly thereafter?
    Mr. Mead. I do not have a detailed analysis as to how long 
they take. I can tell you they do not report to FRA in enough 
time for FRA to take prompt action or to decide whether it 
itself wants to go and investigate. The NRC database, I really 
think the fix on this issue is pretty straightforward. It would 
require them, if you have a serious injury at a grade crossing 
collision, just to report that instead of making it hinge on 
whether they die at the hospital or they die on the scene. That 
would not be inconsistent with the criteria they have if a 
train crew member, for example, received an injury in the 
accident.
    Mr. LaTourette. Right. And the thing, Chairman Rosenker and 
Administrator Boardman, a lot of things strike me about the 
Inspector General's report, but it is this lack of 
investigations I think, and maybe if you could comment on that. 
I had, although it was not an at-grade crossing, but the 
parents of the engineer who perished in the crash down in South 
Carolina came to visit me a couple of weeks ago and expressed 
concern, similar to the concerns that the Inspector General has 
expressed, that why do we not have a National Transportation 
Safety Board investigation of the facts.
    And if you are conversant with that accident, you can talk 
about that accident, but just in general, when the Inspector 
General says over five years or whatever the figure was. I 
guess your agency is most famous for when there is a plane 
crash everybody is all over television. So do we have to have 
130 people perish in one accident before we get an 
investigation? Or how do you do it and why are there not more?
    Mr. Rosenker. Mr. Chairman, I would love to see our 
organization at every single train accident. Unfortunately, the 
assets and the resources that we have within our organization 
will not allow us to do that. Approximately 20 of the say 3,000 
railroad accidents that occur every year are investigated, and 
those are high visibility accidents. We have to go to those. 
Clearly, when you are involving an Amtrak or a passenger train 
in any way, shape, or form, we will investigate that. I assure 
you, we would like to investigate more. But with only 14 
investigators on the staff, we do not have the resources to be 
able to accomplish that.
    By law, we must investigate every aviation accident. And we 
have significantly more aviation investigators than we do in 
other modes. But, as I say, sir, we would be very, very 
pleased, we would be thrilled to have the opportunity to 
investigate and prevent these types of accidents. But it is 
really an issue of sheer numbers against the resources that we 
have, sir.
    Mr. LaTourette. Okay. I thank you for that.
    Administrator Boardman, I think that resources is an 
important point to make. I would bet you would make a similar 
argument about the FRA, and I know you have only been there for 
seven weeks. But I am troubled that, as we talk about resources 
and everybody in every department will tell you there are scant 
resources, my experience with transportation bills is that the 
highway guys want all the money to go to highways, the train 
guys want all the money to go to trains, and the transit people 
want all the money to go to transit. But in both the House and 
the Senate iteration of the ISTEA program that we are now 
struggling with, the Administration has made observations that 
I find troubling.
    Basically, the Administration position on both the set-
asides for Operation Lifesaver and also for improvements of 
grade crossing safety devices in the States is criticized as 
not giving States sufficient flexibility to use it for other 
stuff. Specifically, I will just read to you quickly, ``The 
Administration objects to the set-aside provisions in the 
Senate bill that reduces State flexibility. The Senate bill 
would set aside $938 million for grade crossing safety, 
although grade crossing fatalities account for less than 1 
percent of highway fatalities nationwide.''
    And it goes on to make a similar observation about the 
House bill, it sets aside $1.7 billion over five years, and 
basically says, ``Because of all the accidents that occur in 
the Nation, only 1 percent of these are at-grade crossings,'' 
so we should not tie the States' hands and say they cannot use 
this $1.7 billion in the House bill only for grade 
improvements, and almost $1 billion in the Senate bill.
    Are you able, and again I know you have just got the job so 
I know you did not write this, but are you able just to comment 
on that generally and maybe tell me why my concern that we 
cannot even take $2 billion over five years just to make these 
things safer is not a good idea?
    Mr. Boardman. Mr. Chairman, I think that the philosophy 
behind the set-aside resistance really has to do with the 
philosophy that says a State has to have maximum flexibility to 
use the money where it sees fit. It is not a whole lot 
different than the train rule when we are looking at the train 
rule to have each community begin to identify where its 
priorities really are and what kind of protection it really 
wants to put up there. They are looking for States to find the 
places that they think the priorities are to save lives. And so 
the Administration is looking at that.
    One of the things that occurred is that the total amount of 
money that became available for safety was increased and then 
that flexibility was offered to the States to, hopefully, if 
the rail advocates and those that want to improve grade 
crossing could get more of those dollars to make those 
improvements.
    Mr. LaTourette. Okay. I appreciate that answer. My 
inclination is maybe to do a second round because I do have 
questions of you on the whistle program. But I would just say 
that I am all for States' flexibility. I am a Republican, I am 
supposed to be a States' rights guy.
    But I will tell you that if in these transportation bills 
we did not have a set-aside for air quality mitigation, I do 
not think the States would do it; if we did not have a set-
aside for the preservation of green spaces, I do not think the 
States would do it; and likewise with these grade separations, 
I have to tell you that unless we say you cannot use this $2 
billion for anything but making these grade separations closer, 
I think, at least in my State, and I am not criticizing my 
Department of Transportation, but I think they would say we 
would rather add a third lane on I-71 than do this. So on this, 
I think I have to respectfully disagree with the Administration 
position.
    I yield to Ms. Brown.
    Ms. Brown. Thank you, Mr. Chairman. In my State, we will 
take it and do a tax rebate or something.
    [Laughter.]
    Ms. Brown. I have a question. It seems that 91 percent of 
the collisions cited, Mr. Mead, are caused by the driver of the 
vehicle, although the railroad gives the account of what 
happened and what caused the accident. I would like to ask each 
one of you, and I think you have touched on it, but what are 
some of the things that we can do to ensure that we are getting 
an accurate picture of what happened in the accidents, and how 
can we improve it?
    And the fact that we do not report unless someone gets 
killed at that point certainly is something that needs to be 
corrected. If it is a serious accident, then we need to report 
it. If each one of you could respond.
    Mr. Mead. I will take a shot at it first, since I brought 
it up. I think one clear thing you can do is you want a more 
complete portfolio of information about the accident. Whether 
FRA ultimately can take the resources and investigate more than 
9 a year or not is one issue.
    But certainly they can require a more complete reporting of 
the accident. If you are going to ask the railroads who was at 
fault in this accident, or can you explain circumstances of the 
accident, you are likely to receive something that is an 
exposition of the situation in the light most favorable to the 
railroad. If someone asked me if I was in an accident, you 
know, Mr. Mead, would you explain the circumstances of this 
accident, I would explain it in the light I think most 
favorable, as I think most everybody in the room would.
    I think at a minimum, let us go after the State and local 
police reports, they are right there on the scene; the event 
recorder in the locomotive. These are things that already exist 
that would not cost a lot of money to capture. And I think that 
if we got that information, we would be in a better position to 
act on what Ms. Moore's suggestion was earlier, she was talking 
about a study of causation, I think this would be an 
opportunity to look at it prospectively once you get a complete 
package of information.
    Mr. Rosenker. I would agree with the Inspector General. But 
in addition to that, I would go back to what I had stated 
earlier in my testimony. It is interesting, there were a number 
of studies done about seven, eight years ago indicating that 
people did not really know what to do when they came upon a 
crossbuck. People know what to do when they see a stop sign, 
they know what to do when they see a yield sign, but I could 
probably ask every person in this room what should you do when 
you see the crossbuck and I would probably get about six or 
eight different answers. That is a lot of our problem here.
    The recommendations we made to DOT was to install, at the 
State level and local level, stop signs in conjunction with 
these crossbucks. At least you know what to do when you see a 
stop sign. You will stop, hopefully. But unfortunately, even in 
some of those cases where it is obvious, people will ignore the 
crossbucks, they will go around the gates, they will zoom by at 
40 or 50 or 60 miles an hour. And the laws of physics at that 
point dictate what the result will be. A very, very fast moving 
train will just destroy a motor vehicle. Thank you, ma'am.
    Mr. Boardman. I think one of the things that I began to 
look at in this short period of time in trying to understand 
this issue was that we were not in this thing alone. It was not 
just the IG--and the IG has been very helpful, by the way. Just 
two months ago in May, just before I got here, the FRA 
clarified what the reporting requirements would be for grade 
crossing accidents to the National Response Center.
    So that, and I think you identified that, Ken, we have 
already begun to reduce that kind of a problem within the 
agency; the agency took an action right away. And I think the 
NTSB is exactly right when they talk about the need to change 
the way that we identify passive crossings, whether it is 
crossbucks and you have a yield sign or whether you have a stop 
sign. And so we are in the middle of really talking that out 
with our other partners, which are the Federal Highway 
Administration and those who control what is called the 
"MUTCD", or Manual of Uniform Traffic Control Devices. I got it 
right that time; I was not sure I was going to.
    But the fact is that people do not understand today what 
those passive crossings are really about. In fact, I am going 
to tell you that people do not know you are supposed to stop 
and yield to turn right at a stop sign, and they just go around 
the corner. You are supposed to stop and yield.
    So I think as the increase in train traffic, as you talked 
about a little bit earlier, has occurred, so has the amount of 
vehicular traffic out there, and the difficulty of doing that 
one ``E,'' that education piece, is becoming more and more 
difficult for all of us. So we see those difficulties.
    We also see this as a highway crossing. It allows the 
highway to cross the railroad. Those accidents are 
investigated, and they have been identified as being 
investigated by the local police and by the community that the 
accident occurs in. We have had programs, and continue to have 
programs, with liaison with police departments, to try to teach 
them what they need to look for to make sure that those 
investigations go right.
    And I think there is an important point that the IG has 
brought up about these reports. We are trying to think about 
that, and we are not adverse to changing those reporting 
requirements in some fashion. We would like to look at that. 
There is no ``Cause'' box actually on a crossing collision 
report. There are on the other reports for accidents with the 
railroads, but not on that one. You have to infer what happened 
from what is being said on the report.
    But maybe there is a way to put a box on there from the 
police department report to say what the cause was or at least 
to start in that fashion, and we will look at something like 
that to try to make that improvement.
    Ms. Brown. Thank you. I yield back my time. Maybe we will 
have another round.
    Mr. LaTourette. Yes, we will. I thank the gentlelady very 
much. Maybe while you are educating people you could teach 
people what the passing lane is for as well.
    [Laughter.]
    Mr. LaTourette. Mr. Blumenauer.
    Mr. Blumenauer. Thank you, Mr. Chairman. I am stunned that 
my adult supervisors have allowed me to be at this hearing this 
morning. I want to just throw out a couple things if I could in 
the off chance that I get yanked away.
    From my perspective, I do not want to see us get involved 
in some sort of blame game or whistling somehow that we have 
solved a problem or we have made massive progress. I think we 
still have a significant problem that is solvable compared to 
all the other things that we cope with and throw Federal money 
at that perplex us. This, we ought to be able to continue the 
progress we have seen in the past. I would like your help, and 
the witnesses, Mr. Chairman, on a couple of items of the big 
picture that would be very helpful for me.
    One is, just an understanding of what has happened over the 
last third of a century in terms of the number of crossings 
that we are talking about. Somewhere in the material somebody 
said 100,000 were closed. I would like to get a sense of what 
has happened over a third of a century, the number of where we 
were and where we are today.
    And if there is something else that all these certified 
smart people that are joining us here today could offer up that 
would help us get the big picture, get the context, I would 
welcome that.
    Second, I think it would be interesting to have a 
comparison over the last five or ten years of the number of 
deaths in aviation versus the number of deaths in railroads. I 
should know this, I know. My impression is because of the great 
work that is being done in aviation, absent an intervening 
terrorist event, pretty good record in terms of lives lost. And 
admittedly, it is not apples and oranges because we have a 
massive rail system.
    But just being able to have the context, what have we spent 
in the number of investigations, what have we spent aviation 
versus rail. It is a question I would like to explore with our 
experts and ask them to submit this in writing, Mr. Chairman, 
because I do not want to spring anything on people.
    But I would like their help in understanding the context of 
those statistics and whether or not the time has come for us to 
mandate some sort of minimum investigation any time there is a 
death that is related to a railroad accident. Again, I would 
like to get a sense of if there is a way to have a more 
equitable allocation.
    Mr. LaTourette. If the gentleman will yield for just a 
minute.
    Mr. Blumenauer. Absolutely.
    Mr. LaTourette. I saw everybody scribbling down while you 
were talking. But if you would be so kind as to put that in 
writing, I will submit it to the witnesses and we would ask 
them to help us supplement the record, and I thank you.
    Mr. Blumenauer. Yes, sir. Thank you. I will attempt to do 
that, Mr. Chairman.
    There are some specifics that I would ask, and I will again 
make part of a memo, but I want to put it on the table now to 
the extent that there is some help that witnesses can give us 
now. Looking at changes that we need to make--and I appreciated 
some specifics that have come forward. There are no Federal 
sight distance requirements. Should there be a Federal 
requirement for railroads? Should there be some requirement 
that the right-of-way maintenance obligations are, in fact, 
enforced? We have heard that evidently in Ohio there is some 
question about this. Is there any problem with just amending 
the regulations so that the reporting kicks in every time there 
is a death or serious injury? Is there any problem with making 
that change? And your notion if there are alternatives for 
funding. This is a problem, it is not going to be cheap if we 
have more investigations, for instance. But if there are 
recommendations about sources for revenues or partnerships that 
would make that possible.
    And if I have not totally exhausted my time, I think my 
green light is still on, Mr. Chairman, I would like to conclude 
with one question that the panelists might react to, because 
the Inspector General's report suggested some ambiguity in the 
relationship between the Transportation Safety Board and the 
Federal Railroad Administration.
    I am curious if representatives from either agency could 
speak to the potential of clarifying the relationship between 
the two so that we do a better job not just of investigation, 
but getting the policy recommendations, the enforcement, the 
things that will really make a difference at the end of the 
day. And Mr. Mead, if you want to jump in at some point at the 
end of that, I would welcome your thoughts as well since you 
planted the seed.
    Mr. Rosenker. Congressman, thank you for those questions. 
If I could begin by stating the fact once again, we would be 
very interested in investigating every accident we could if we 
had the assets and resources to do that. So we have created 
criterion that basically is in the area of passenger traffic. 
Amtrak, various passenger trains, if they have collisions, they 
have deaths, we will investigate that, no matter how many of 
them.
    Freight trains, we also take a look at catastrophic issue 
of what happened at that freight train, there was a HAZMAT 
release, were there civilians along the sides, that type of 
thing, we will investigate those. But unfortunately, with only 
14 investigators, we do not have the ability to investigate 
every one of the accidents, find the probable cause, make 
recommendations, and then advocate implementation of those 
recommendations.
    This organization only has approximately 416 people to 
cover all the modes of transportation. We must look at every 
aviation accident in the United States. There are approximately 
2,000 of those. We do not necessarily go to every single one of 
them, but we will be looking at them and many times we will 
investigate in cooperation with the FAA. We always work with 
the FRA when we do these investigations for rail. They are 
there with us. But they have the wherewithal to go to more than 
we do.
    Mr. Boardman. There is absolutely no ambiguity in knowing 
when the NTSB shows up who is in charge. We know that the NTSB 
is in charge, just like as I left New York, and I can speak 
about that a little bit more since I was there for eight years 
and I chaired the public transportation safety board, there was 
no ambiguity on the part of the transit system when we showed 
up to do an investigation in New York State that we were in 
charge of that investigation unless the NTSB showed up, and 
then there was no ambiguity there either that they were in 
charge. So in terms of that part of your question, Congressman, 
there is no confusion there.
    In terms of the amount of resources or how we would 
investigate these accidents, I think I note that there are 
probably 3,000 or more investigators with the FAA and we have a 
total field staff of a little over 500 people and they are not 
all investigators for grade crossings; we have about 16 people 
that are grade crossing experts.
    So we try to get to those that we can get to, but more 
importantly, we try to use them for prevention activities and 
let our partnerships continue with the local police 
investigating highway accidents and grade crossings unless it 
meets the criteria. And I think the question of do we need to 
change that, do we need to do something different for the 
future, that is what I hear from your question, and that is 
something we will look at in more of a response to you.
    Mr. Mead. I would like to take the offer since I planted 
the seed in the first place. It does seem to me the FRA people 
to whom he alludes, it is correct to say FRA has more staff, as 
the Administrator said. It is also correct to say that those 
very staff are doing other duties besides investigating 
accidents. I think that under Administrator Boardman's 
leadership, there is an opportunity for him to reflect on 
whether the culture inside FRA is oriented to actually wanting 
to do investigations of these accidents.
    Final point. The investigative criteria that FRA uses now 
needs to be revisited. There are three criteria for when they 
will investigate the accidents. The first is when there is a 
malfunction of grade crossing equipment. That makes some sense 
except that actually goes more to a finding of an 
investigation.
    But what would trigger this is if somebody self-reported 
that the crossing equipment did not work. That would normally 
be something that you would want to find out as a result of an 
investigation. The second criteria, a commercial vehicle or a 
bus is involved in a grade crossing collision plus one death or 
several injuries.
    Third criteria, if it is not a commercial vehicle or a bus, 
you have to have three deaths to highway users. I would take a 
look at that criteria as to whether it is comprehensive enough 
for their needs.
    Mr. Blumenauer. Mr. Chairman, if you could indulge me just 
30 seconds more. Other than our Chair and Ranking Member, I 
take a back seat to no one in terms of thinking that rail is 
critically important for our country's future and that it is 
going to be more important rather than less for purposes of 
energy, for purposes of the growth that we have, congestion. 
This is an issue that I think is going to grow over time.
    I cannot say enough how much I appreciate the leadership of 
our Committee focusing on this, because this something that we 
have to get right or it is going to pose a problem for current 
operations of rail, let alone where it is going in the future.
    I wanted to just signal one other item. Because I did not 
know if I was going to be able to be here, I have been reading 
furiously the testimony. There was an item that was in Mr. 
Hamberger's testimony that just struck a resonant chord, 
talking about problems with grade crossings that continue, even 
if they are low priority for transportation purposes, one would 
think, but have a high community value.
    It is tough to close some of these down. Some people say 
toss down a jersey barrier. Those of us who have been in local 
government or who have worked on some of these problems know 
that sometimes it is not just the neighborhood, it is business 
interests that are concerned, there are public safety issues. 
So it is complex. And this is a part of the shared 
responsibility, Mr. Chairman, that I think we face.
    If I am still here when Mr. Hamberger testifies, I was 
going to try and tease out of him what we could do in a way to 
help focus on things that keep certain grade crossings going 
that might lend themselves to cooperative solutions. This is 
shared responsibility and this is one that looms heavily on my 
mind, that it may be risky for us to wade in, but it might be 
useful.
    Mr. LaTourette. I thank the gentleman very much. I can just 
tell you that my first house was three houses from a set of 
railroad tracks and the street dead-ended at the railroad 
tracks and my neighbors made their own grade crossings just 
because they did not want to drive two blocks to go the regular 
way. So human behavior is something that we do have to address.
    I do want to engage in a second round because I wanted to 
ask about the whistle rule, Administrator Boardman, and a 
couple of things that are concerning me. It is my understanding 
that the final rule on the whistle ban requires time-based 
soundings of horns as opposed to the old way where there is a 
placard in the ground that has a ``W'' on it that notifies the 
crew that it is time to sound the whistle.
    It is my understanding now that the engineer is going to 
have to do a math equation in his head because the time-based 
sounding of the horn is going to be at a defined time interval 
away from the crossing, which of course is that old story of 
when two trains leave Chicago at the same time, which one gets 
to New York based upon the speed of the train and a variety of 
other things.
    I understand, and I know that this was not done on your 
watch, but I understand that some labor organizations brought 
this to the FRA's attention, and the FRA as a matter of fact 
acknowledged substantial difficulties with compliance. I see 
substantial difficulties with compliance. And I guess I would 
just ask you about your opinion on the advisability of having 
these interval things.
    I think it is going to create accidents or the temptation 
is going to be if I am a railroad and I know if the engineer is 
not really good at math and he screws this thing up, you are 
going to be subject to more accidents, more liability, so I 
would just sound the horn from one end of town to the other so 
I did not have to say, you know, I am not good at math. Maybe 
you can tell us what you think about that.
    Mr. Boardman. I was trying to decide whether I am good at 
math. The math, I can tell you: there were 3,000 comments on 
the initial rule, and another 1,400 after we had published the 
interim rule. So there is a lot of interest. While I rejected 
delaying the implementation of the horn rule, we did accept 
reconsideration on such issues as the time, and we are looking 
at that right now.
    Mr. LaTourette. Good. I appreciate that. And the other 
thing as you begin your tenure, I think the time line on the 
whistle rule is instructive, at least to those of us that try 
to be helpful with legislation. The 1994 law required the FRA 
to issue final rules in two phases; one by November of 1996, 
and the second by November of 1998.
    The FRA, however, did not propose rules until the year 
2000, and the recent final rule was finally issued in April 
2005. Can you provide us comfort that under your administration 
you will attempt to address the chronic and continued failures 
of the FRA to respond to rule-making in a timely manner as 
envisioned by the Congress?
    Mr. Boardman. Yes. In that particular case, Mr. Chairman, 
just to talk about that if you will permit me for a minute--
    Mr. LaTourette. Sure.
    Mr. Boardman. Congress did require the FRA to stop the 
implementation and hold hearings. So a lot of that was in there 
in order to respond again to Congress. But, yes.
    Mr. LaTourette. Good. And then Mr. Mead, just a couple. We 
are aware, I think Mr. Blumenauer touched upon it a little bit, 
but we are aware that sometimes local and State authorities 
resist making improvements that are suggested by the railroads 
or other safety experts to make grade crossings safer, design 
problems within a community that are not on the railroad 
property, they are under the jurisdiction of the local 
community, in some cases highway signs might need to be placed, 
you might have to repair some pavement markings.
    If municipalities or States refuse to make these safety 
upgrades, do you have an opinion as to whether or not the 
Congress should perhaps empower the FRA to fine or some other 
way sanction those communities that neglect to make those 
accepted and recognized safety improvements?
    Mr. Mead. Yes, I think that is well-advised. That is good 
counsel. You know, in our grade crossing report, the one I 
mentioned earlier, the 2004 report, we made a recommendation in 
there that the FRA and the other appropriate parties in the 
Department should target the top States that are having these 
grade crossing problems. Your State is one of the borderline 
States.
    But we suggest the number six--California, Illinois, 
Indiana, Louisiana, Ohio and Texas. We thought the Department 
ought to require these six States to submit an action plan that 
everybody would agree on. They are trying it with Louisiana 
now. And I think that is a good mechanism, these State action 
plans, for getting concrete results. And I think they can be 
linked to money as well.
    And if they are properly coordinated within the Department, 
as Administrator Boardman was suggesting, with the Federal 
Highway Administration, the Federal Railroad Administration, 
the Inspector General, the Congress, that is a pretty good list 
of heavy-hitters. And so I think your counsel on that is well 
taken, sir.
    Mr. LaTourette. And the last question before I yield to Ms. 
Brown. When I was asking questions before about the 
flexibility, the ability of States to only use money for 
upgrading at-grade crossings, the highway bill, as you know, 
has a Section 130 that deals with that. Can you just comment 
briefly on whether you think Section 130 has been effective 
during the course of its existence.
    Mr. Mead. Well, I am not specifically familiar with the 
Section 130. I would just state as a general proposition that, 
the point you were making earlier about there are some areas 
that if it is just left to the highway interests, you are going 
to get some concrete, and if it is left to transit, you are 
going to get some transit, I think that point is well-taken. I 
have been at the Department now for some years and I see that 
in practice.
    Mr. LaTourette. Okay. Thank you very much. Ms. Brown, do 
you have more questions?
    Ms. Brown. Thank you, Mr. Chairman. I knew there was 
something I like about you. You need to know that also my first 
house was two doors down from the railroad track and the meter 
used to run right through my house.
    Mr. Boardman, I will start with you. I have two or three 
questions for each party. What resources does the FRA need to 
improve railroad safety? Do you need more inspectors, more 
funding?
    Mr. Boardman. The resource question. I think, depending on 
what it is that we would be sent out to do, I would certainly 
have to be much more specific on that. I know that some folks 
have analyzed what would it take to look at every crossing and 
every investigation that might be out there, and it would be 
far beyond where we could even find people, probably, that 
would be qualified to do something like that.
    But one of the things that has happened at the FRA, I think 
of particular importance to answer your question, is that the 
Secretary announced in May a new safety action plan whose 
centerpiece is called the National Inspection Plan.
    That National Inspection Plan is looking at each one of the 
disciplines for inspection of a railroad safety matter, whether 
it is an operating practice by the railroad, whether it is a 
grade crossing or a track, or whatever the particular craft or 
inspection is, and looking at how should we best employ the 
resources that we have available to reduce the amount of risk 
or to reduce the potential for either an incident, an accident, 
or a loss of life on the railroad.
    And that has begun. There are three areas that have already 
been covered, and we have already begun to shift resources, 
both in terms of from one railroad or one area of the country 
to another, to make sure that we are reducing those risks. We 
will also do that with additional areas; like the signal 
issues, for example, will be dealt with by early 2006.
    That is something. As I came in and I have been getting a 
briefing for about an hour every week to try to understand that 
plan, I think it is the way to go. And again, that was 
something that was driven partly by the Inspector General in 
his previous report that he looked at, that we needed to look 
at data differently for the future, and that is something I am 
interested in as well, that we use our resources wisely in 
order to reduce the difficulty with safety.
    Ms. Brown. Right. You only have, what, 16 inspectors 
though, is that correct?
    Mr. Boardman. That is just for grade crossings. We have 
about 500 folks in the field, some of those are supervisors and 
support staff, probably just over 400 are actually out there 
inspecting in either track, signal and grade crossing, 
operating practices, motive power and equipment, and hazardous 
materials.
    Ms. Brown. And you are also working with State and local 
governments?
    Mr. Boardman. Yes. There are about another 155 inspectors 
in 30 States that we have agreements with.
    Ms. Brown. My last question for you is, what is FRA doing 
to address overgrown vegetation and sight obstruction at grade 
crossings?
    Mr. Boardman. We have a rule that requires the railroad to 
keep any of the either passive or active barriers free from 
vegetation so people can see those barriers. We do not have 
regulations that deal with what has been discussed here earlier 
about the sight distances, and it has been suggested to use 
AASHTO's green book or some other standard to apply there. We 
do not have those regulations.
    Ms. Brown. Mr. Mead, do you think the FRA has done a good 
job in enforcing its regulations and ensuring that the 
railroads are inspected and assessed appropriate penalties? And 
I go back to your testimony where you said one major penalty 
added up to all of the smaller penalties in one incident.
    Mr. Mead. I think that the third major point in our 
testimony goes to this issue. It seemed to me that FRA 
inspectors working very hard and diligently identified 7,49 
critical safety defects. Critical is not something that we 
coined; that is FRA stratified the recommendations they made 
into the more important ones, and those 7,490 were the more 
important ones of 69,405 that they had found. Of the 7,490, 
roughly 347 or 5 percent were recommnded for violations.
    And as I pointed out in 2003, they assessed fines for all 
railroads in the United States for all grade crossing signal 
violations of $271,000, I think it was, and in just one fine 
this year it exceeded that. So I think they can do a better 
job. And I think the inspectors out there in the field would 
appreciate that. They are out there writing all these defects 
or recommending violations, they must wonder what has become of 
them.
    Ms. Brown. Okay. One last question for you. How does the 
FRA differ from the other model administrations when it comes 
to addressing safety? Are they as rigid as the other model 
administrations in ensuring that there is appropriate oversight 
and enforcement of these regulations?
    Mr. Mead. I think FRA is getting better. Administrator 
Boardman pointed out that the Secretary directed a National 
Action Plan. I think this Committee should revisit how that 
plan is performing once it is fully implemented. FAA, I think 
in aviation, Ms. Brown, it has been my experience that almost 
across the board in aviation tolerance level for safety risk is 
the lowest of any mode of transportation.
    And then when you get on up, I think common carriers in 
general, where you are paying somebody to haul your goods or 
haul your person, that the standards of care there are tough. 
And then when you get to your own private motor vehicle, that 
is probably where things are almost totally left to the States. 
But I think FRA is making some progress.
    Ms. Brown. That is good. I am very pleased that you all are 
so forthcoming with us.
    One last question. You mentioned that you all would like to 
investigate more if you had more resources. I guess we are 
responsible for funding you. Is your funding sufficient, we 
know it is not, but what would it take for you all to do a 
better job of protecting the public?
    Mr. Rosenker. We asked in this year's appropriation bill 
for 73 additional full-time employees. That would be in the 
rail area for rail investigators an additional 10 
investigators, and a total for the Department of 22, because we 
also have hazardous materials and pipeline.
    In addition to that, there will be people, say human 
factors people, that will look at rail accidents when we take 
the entire team out. Currently, as I indicated earlier, we have 
14 full-time investigators, and that would really make up 
approximately two full teams to cover the Nation today.
    Ms. Brown. You requested that. Is it in the appropriations? 
Where is it?
    Mr. Rosenker. It was in our appropriations bill. We 
actually listed the 73 positions, specifically what they would 
do. Unfortunately, we did not get anything. We were flatlined.
    Ms. Brown. Okay. We have to see what we can do.
    Mr. Mead. Just on the point on resources. I wonder if there 
are some opportunities for cross-fertilization among the 
different investigative disciplines. Human factors is an 
example. Event recorders, there is extraordinary expertise at 
NTSB in how to get out of wreckage, airplane wreckage, event 
recorders and how to listen to them and translate them. I would 
think those skills are transportable to other modes as 
appropriate. At least that is something that could be looked 
at.
    Ms. Brown. Thank you. Thank you, Mr. Chairman, I yield back 
my time.
    Mr. LaTourette. Thank you very much. Mr. Bachus.
    Mr. Bachus. I thank the Chairman. Mr. Boardman, I was 
reading your testimony and, on Page 8, it says the final rule 
on implementing the 1994 whistle ban statute became effective 
June 24th. Is that correct?
    Mr. Boardman. That is correct.
    Mr. Bachus. When I read that I thought that was a mistake. 
When was the rule published?
    Mr. Boardman. The rule for the purposes of time I think was 
published in December of 2003.
    Mr. Bachus. I checked that and it was issued April 27th in 
the Federal Register.
    Mr. Boardman. It was issued but it was published back in 
2003. Okay, it was the interim rule that was published in 
December of 2003.
    Mr. Bachus. Yes, which has no legal impact.
    Mr. Boardman. We think it does.
    Mr. Bachus. You think the interim rule complies with--
    Mr. Boardman. I think one of the implications here that 
this rule is not yet effective is wrong. That, I guess, is what 
I am trying to say.
    Mr. Bachus. Well let me go back. You think an interim rule 
satisfies the statutory 365 days following publication of the 
final rule?
    Mr. Boardman. We have a legal interpretation from within 
the Department that we have satisfied that rule.
    Mr. Bachus. Based on legal precedents? Could we have a copy 
of that legal opinion?
    Mr. Boardman. Yes.
    Mr. Bachus. Okay. You are not disputing that the final rule 
was published April 27th?
    Mr. Boardman. I guess not. The final rule took effect on 
June 24th.
    Mr. Bachus. Just reading, ``Any regulations under this 
section shall not take effect before the 365th day following 
publication of the final rule.''
    Mr. Boardman. We will get you a legal interpretation. We 
think it is a final rule now, sir.
    Mr. Bachus. Oh, it is a final rule now, I am not disputing 
that. But I am certainly disputing the fact that comply with 
this regulation. I cannot imagine that you found an attorney 
that would say that an interim rule was a final rule. Do you 
think those are interchangeable terms?
    Mr. Boardman. No.
    Mr. Bachus. But you are doing that in this case?
    Mr. Boardman. I am going to get you a legal opinion that I 
read, that I did not totally understand, but I will give it to 
you.
    Mr. Bachus. And you are relying on that as opposed to the 
plain wording of the statute?
    Mr. Boardman. Yes.
    Mr. Bachus. Okay. So you admit you are ignoring the plain 
wording of the statute?
    Mr. Boardman. No. Yes.
    [Laughter.]
    Mr. Bachus. Okay. Thank you. I like the second answer 
better than the first.
    Mr. Boardman. Yes, I understand.
    Mr. Bachus. I am concerned, I am sure other people have 
brought it up, about how complex this is for engineers sitting 
in the cab. When they have got a whistle board, they blow it 
when they get to the whistle board. But have you ridden in the 
cabs of these diesel engines as they have approached crossings 
a lot?
    Mr. Boardman. I have not; no.
    Mr. Bachus. Okay. Would you do that if we could arrange 
that, just so you could observe the complexity of the rule that 
you all have adopted?
    Mr. Boardman. I would not think you would expect me to say 
"no."
    Mr. Bachus. Right. Thank you. I can tell you that even 
anybody that appreciates the anxiety and the stress and really 
the unnerving, and I am not talking about anything to do with 
you, but as a train approaches a crossing and people are 
running across that crossing, I can tell you that I was on an 
Amtrak diesel in Houston, Texas and people were running right 
across in front of us and there were school buses out there, 
and I was praying to get off that diesel, not because I was 
scared but because it was almost a nauseating experience. And 
engineers do this every day. I do not know how they do it. The 
stress level has got to be incredible, and I am sure there have 
been studies on that.
    This wayside horn, where you have placed them 50 feet from 
the crossing, these stationary horns, pole mounted I suppose, 
is that far enough back?
    Mr. Boardman. I do not know the answer to that question.
    Mr. Bachus. That is something you would probably want to 
know, would you not?
    Mr. Boardman. Certainly.
    Mr. Bachus. Is that a fair stopping distance?
    Mr. Boardman. I do not know the answer to that question.
    Mr. Bachus. How about the National Transportation Safety 
Board member, is 50 feet--it seems astonishingly short to me.
    Mr. Rosenker. Sir, depending upon the speed of the train, 
depending upon the coefficient of the track, depending upon the 
speed limit--
    Mr. Bachus. I am talking about the automobile. I guess the 
train would obviously be a variable there. I was thinking more 
of the--
    Mr. Rosenker. Yes, sir. I am sorry. Depending on how fast 
the motor vehicle is moving.
    Mr. Bachus. What if it is 40 miles an hour, what is the 
stopping distance?
    Mr. Rosenker. Sir, it depends, once again, upon the 
coefficient of the road, depending upon the kinds of tires, 
depending upon--
    Mr. Bachus. Let us assume a flat road, asphalt surface, 
four lane highway, level.
    Mr. Rosenker. Sir, you have gone beyond my expertise.
    Mr. Bachus. Okay. Would you agree with me that 50 feet is 
insufficient?
    Mr. Rosenker. Once again, sir, depending upon the road 
conditions, it may well be, sir.
    Mr. Bachus. Just from your common, ordinary experience in 
stopping an automobile, do you think that two car lengths or 
three car lengths is--
    Mr. Rosenker. Sir, I might not be comfortable with that.
    Mr. Bachus. Okay. All right. Those are easily equated. 
There are charts and graphs.
    Mr. Rosenker. Yes, sir.
    Mr. Bachus. I can tell you it is astonishingly short. Even 
with our new braking systems, I think it is pretty impossible. 
I was interested in your assessment. You are here testifying 
about these rules and regulations. Have any of you taken a 
position on 50 feet and whether that is sufficient? Were you 
aware that it was 50 feet from the crossing?
    Mr. Rosenker. What our position is, we still believe a horn 
is a very valuable part of protecting a road crossing. However, 
with the implementation of this legislation, we see a silver 
lining at the same time; that is, the requirement to improve 
the road crossing conditions whether by eliminating it totally, 
whether by building a cross-over, underpass, or by making a 
passive crossing an active crossing. So at the same time, we 
see that silver lining.
    Mr. Bachus. Maybe I have confused you. I confused one of 
the staff. What I am talking about is 50 feet from the crossing 
being the decision point for making a decision--
    Mr. Boardman. Mr. Bachus, it is not 50 feet from the 
crossing, I am told. It is really on the mast, and it is used 
with gates, and it is based on time rather than that distance.
    Mr. Bachus. I am talking about the automobile. I am just 
going to read: ``FRA set the minimum volume for wayside horns 
at 96 decibels based on the motorist's decision point 50 feet 
in advance of the grade crossing.'' And a decision point 50 
feet from the grade crossing I think is too late for a motorist 
to make that decision. AASHTO standards of sight distances are 
probably 300 feet in a lot of instances. So that is what I am 
saying, a decision point for the motorist 50 feet from the 
crossing just seems too short.
    Mr. Boardman. Mr. Bachus, that is really for measuring the 
decibel rating at 50 feet. It sounds a lot earlier than that in 
order to give the motorist a warning for stopping purposes. It 
is not 50 feet for stopping.
    Mr. Bachus. But I guess that is my question. Why would you 
measure it at 50 feet when that to me would be beyond the 
decision point?
    Mr. Boardman. That would be at the maximum point I guess of 
the decibels would be at 50 feet.
    Mr. Bachus. Okay. If I have got a little more time, let me 
ask, when you tell a railroad not to blow a whistle through a 
regulation or a statute, and Mr. Rosenker mentioned that he 
feels like a horn can be a very valuable or necessary 
instrument in warning motorists, but if you have a rule where 
you tell a railroad not to blow the horn, you do not shield 
them from liability in the case they do not blow that horn, do 
you?
    Mr. Boardman. When you tell a railroad not to blow the 
horn? I do not understand that question.
    Mr. Bachus. Your regulation is--
    Mr. Boardman. The rule is blow the horn.
    Mr. Bachus. Okay. It is not a whistle ban statute?
    Mr. Boardman. The quiet zones that you would have would be 
based on the risk that was--
    Mr. Bachus. Okay. And within those areas where they do not 
blow the horn because of the statute, when they do not blow the 
horn and liability results, do you compensate them or reimburse 
them for their liability?
    Mr. Boardman. If we have invested dollars at the crossing, 
Federal dollars at the crossing, then we preempt the liability.
    Mr. Bachus. Okay. So you do preempt their liability. If 
they comply with that and they are sued--
    Mr. Boardman. Yes. I think the concern would be--
    Mr. Bachus. If they are sued and somebody says if you blew 
the horn--
    Mr. Boardman. I can understand clearly now why you got the 
largest award.
    Mr. Bachus. And let us just say it never comes up from a 
liability standpoint, they never blow the horn, and you cannot 
raise that, let us just say it is not even discussed with the 
jury, but do you not think they are back there thinking they 
should have blown the horn?
    Mr. Boardman. I think that their liability is that if they 
do not do it right, I think--
    Mr. Bachus. I guess what I am asking, what if they had 
blown the horn except for the whistle ban statute and the 
motorist had stopped, instead of the engineer blowing the horn, 
the motorist stopping, he does not blow the horn, they do not 
stop, and they result in a million dollar verdict. There is no 
reimbursement by the Federal Government, or is there any shield 
provision?
    Mr. Boardman. As long as they have complied with Federal 
law, they are okay.
    Mr. Bachus. Okay. So you would reimburse them for any 
liability that might occur?
    Mr. Boardman. Reimburse them? No.
    Mr. Bachus. Compensate them, shield them? There is no 
immunity under the statute?
    Mr. Boardman. I am going to go back to a yes, no.
    [Laughter.]
    Mr. Bachus. All right. I think they would prefer yes, but I 
think the answer is no.
    Mr. Boardman. I think there is a preemption, yes, if there 
is Federal money that is invested, that their liability is 
limited.
    Mr. Bachus. No, I am saying when they are sued it is their 
money on the line. Am I wrong? Other members of the panel?
    Mr. Mead. I think the issue here is a standard of care. Is 
the railroad by tooting its horn at the intervals authorized by 
statute and not any more than that meeting a standard of due 
care that has, in effect, been prescribed by the Federal 
Government and is therefore not liable if it follows that 
standard of care. And then I think there is a subsidiary 
question as to whether the Federal Government would be liable 
in a law suit for somebody that says that the rule itself 
imposes a standard of--
    Mr. Bachus. I do not mean to belabor this point, but let us 
just use a hypothetical. The CSX railroad engine is approaching 
the crossing, because of the whistle ban statute they do not 
blow the horn, and an individual gets on the crossing and is 
hit, and the CSX railroad is sued. Now probably in all 
likelihood, because of this Federal statute, nobody is going to 
say they did not have to blow the horn, it probably is excluded 
from evidence, the jury probably never hears it, or let us just 
say the jury is even told there was a whistle ban statute so 
they did not have to blow the horn. Okay?
    Now, I do not know how that comes down, but I do know that 
if there is a verdict against the railroad they have to pay. It 
seems to me like you are taking away their right to blow the 
horn to warn people to therefore limit their liability. Do you 
follow my logic?
    Mr. Mead. I am not an expert on this horn rule. But I do 
follow your logic. I see what you are saying.
    Mr. Boardman. But the engineer is allowed to blow the horn 
whenever there is an emergency, whether there is a whistle ban 
or not.
    Mr. Bachus. But he does not know, Mr. Boardman, whether 
there is going to be an emergency or not until it is too late.
    Mr. Boardman. Well certainly when he sees somebody in front 
of him he can still blow it, which is the last gasp at that 
point in time.
    Mr. Bachus. The only thing a last gasp is going to do is 
the person--
    Mr. Boardman. So your point is, you would like to go back, 
for Congress to not have the whistle ban?
    Mr. Bachus. Well, no. We actually said do not implement it 
for a year after the publication date which would allow us to 
address some of these things.
    Mr. LaTourette. If I could ask you to wrap up, Mr. Bachus, 
I would appreciate that very much. Do you have one more 
question you want to ask?
    Mr. Bachus. Well, the time-based whistle blowing or horn 
blowing, if the engineer miscalculates when to blow the horn 
because of the complexity of the rule, is the railroad exposed 
to liability?
    Mr. Boardman. I do not know.
    Mr. Bachus. Okay.
    Mr. LaTourette. I thank the gentleman very much. We need to 
get to our third panel.
    For this panel, I want to thank you all for coming. 
Administrator Boardman, you have had a good baptism here today. 
I think your observation is right, it is pretty obvious as to 
why Mr. Bachus was such a successful lawyer in Alabama before 
joining us here in the Congress. You all go with our thanks.
    And pursuant to when Mr. Blumenauer was here, if he in fact 
writes down those observations that he would like comments on, 
we will forward those to you and would appreciate your 
cooperation in getting back to us. But you go with our thanks. 
Thank you.
    While the third panel gets situated, just a couple 
housekeeping matters. One, I would ask unanimous consent for 
members to submit additional questions to the witnesses for the 
record. Without objection, so ordered.
    I would also ask unanimous consent that the Chairman of the 
full Committee, Mr. Young's statement, as well as that of any 
member of the Committee or Subcommittee, be entered into the 
hearing record at the appropriate moment in time.
    It is now my pleasure to welcome our third panel today. 
First, Edward Hamberger, who is the president of the 
Association of American Railroads; Gerri Hall, who is the 
president of Operation Lifesaver; Dan Pickett, who is the 
president of the Brotherhood of Railroad Signalmen; and Paul 
Worley, who is the chairman of the Rail Safety Task Force from 
the American Association of Highway and Transportation 
Officials.
    I want to welcome you all. We have obviously received your 
testimony. I do not want to cut anybody off, but now because of 
the length of the hearing, if we could sort of pay attention to 
the five minute rule and we will see if we can get through this 
today. We thank you all for coming.
    Mr. Hamberger, the floor is yours.

    TESTIMONY OF EDWARD HAMBERGER, PRESIDENT ASSOCIATION OF 
    AMERICAN RAILROADS; GERRI L. HALL, PRESIDENT, OPERATION 
  LIFESAVER; DAN PICKETT, PRESIDENT, BROTHERHOOD OF RAILROAD 
   SIGNALMEN; PAUL WORLEY, CHAIRMAN, RAIL SAFETY TASK FORCE, 
  AMERICAN ASSOCIATION OF HIGHWAY AND TRANSPORTATION OFFICIALS

    Mr. Hamberger. Thank you, Mr. Chairman. On behalf of our 
members, I would like to thank the Committee for this 
opportunity to discuss highway-rail grade crossing safety.
    In addition, I would like to thank the members of the 
Subcommittee and the full Committee for their hard work on TEA-
21 reauthorization in general, but most especially for your 
continued support of the Section 130 program and its funding 
for highway-rail grade crossing improvements.
    As you have heard this morning and this afternoon, we have 
made substantial progress over the years in improving grade 
crossing safety. The Section 130 program deserves much of the 
credit for that progress. In fact, since 1980, grade crossing 
collisions are down 71 percent, fatalities down 56 percent, and 
injuries, 72 percent. And the decline in the absolute number of 
grade crossing accidents has come at the same time that rail 
and highway traffic has been increasing.
    The rail industry has been, and remains, in the forefront 
of the effort to improve grade crossing safety. The record 
shows that it was railroads back in the 1970s who were the 
original advocates for the Section 130 program. Railroads have 
advocated in this Congress for a doubling of the Section 130 
funding. And as you pointed out, Mr. Chairman, that was in the 
face of opposition from the Administration.
    Railroads are advocates for change in the MUTCD, as 
recommended by the NTSB, to encourage the installation of yield 
or stop signs at passive grade crossings. I would like 
permission to insert in the record at this point a letter I was 
pleased to write to Administrator Peters in February of 2004 
urging the Federal Highway Administration to accelerate the 
adoption of this standard.
    Mr. LaTourette. Without objection.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T5909.001
    
    [GRAPHIC] [TIFF OMITTED] T5909.002
    
    Mr. Hamberger. Thank you.
    Railroads were among the founders of Operation Lifesaver, 
whose educational efforts aimed at drivers and trespassers have 
helped save thousands of lives, and every year railroad 
employees make thousands of safety presentations before school 
and civic groups as part of Operation Lifesaver activities.
    Every year our industry spends in excess of a quarter of a 
billion dollars to maintain active warning devices at grade 
crossings. From 2003 to 2004, while the grade crossing accident 
rate continued to decline, the actual number of grade crossing 
accidents did increase and did not show the improvement of the 
previous years.
    As IG Mead noted, this is due primarily to the fact that 
our safety efforts have already harvested most of the low-
hanging fruit and further progress will yield incrementally 
fewer benefits. That is why the industry has undertaken many 
additional safety initiatives. We want to get to the root of 
this problem, and not just when it is motorist error, but when 
it is the error of the railroads as well.
    Even one grade crossing accident is one too many. And with 
that in mind, railroads are putting forth significant efforts 
and expending significant resources on a variety of approaches 
designed to reduce the number of crossing accidents. For 
example, CSX has strengthened its grade crossing safety program 
with several key initiatives including improving its accident 
reporting operations and advanced analysis of grade crossing 
accident causes. All Class 1s have multimillion dollar programs 
to cut vegetation around railroad tracks to enhance public 
visibility at grade crossings. Union Pacific is near completion 
of a major safety initiative to upgrade signs at crossings 
without active warning devices, consistent with the NTSB 
recommendation.
    All AAR members are working closely with States, 
communities, and private property owners to close unnecessary 
or duplicate crossings. Since 2000, for example, BNSF has 
closed more than 2,500 at-grade crossings on their system and 
has the goal of closing 420 more by the end of 2005. Similarly, 
Kansas City Southern is partnering with the States of Missouri 
and Mississippi DOTs to improve safety through a series of 
upgraded crossing signals or closed crossings.
    As we will hear later, Norfolk Southern is partnering with 
the FRA and the North Carolina Department of Transportation in 
a new grade crossing safety research project that uses 
locomotive-mounted digital video cameras to capture real-time 
data of actual grade crossing collisions and trespass 
incidents. The FRA noted that the project results will be used 
to develop more effective safety measures to better protect 
lives at grade crossings.
    Yet much remains to be done. Thousands of redundant or 
otherwise unnecessary grade crossings remain open and should be 
closed. Education needs to be intensified further, as 
highlighted by the fact that nearly half of all highway-
railroad grade crossing fatalities occur at crossings already 
equipped with active warning devices. Motorists all too often 
drive around lowered gates, ignore flashing lights and ringing 
bells, and proceed through red traffic lights, often with 
tragic results.
    We also strongly support proposals for simplifying and 
streamlining data collection involving incidents at grade 
crossings. Again as IG Mead stated in his testimony, ``There is 
no evidence of malfeasance on behalf of the industry, but the 
reporting requirements are complex and there has been a good 
deal of confusion.''
    I support his second recommendation that the Federal 
Railroad Administration, and perhaps it should also be the 
Federal Highway Administration which keeps track of a fatality 
accident reporting system, should be given the local law 
enforcement accident reports. It is our belief that 
transparency is important in getting to the root cause of every 
one of these accidents so that root cause can be addressed.
    In addition, we urge Congress to consider adopting a number 
of other initiatives including uniform national guidelines for 
crossing closure and construction, as well as the ultimate 
elimination of crossings on the National Highway System. These 
and other suggestions are more fully described in my written 
statement.
    We stand ready to work with the FRA, the other 
administrations at DOT, and the goal of everyone seated at this 
table, including the Angels on the Track that you heard from 
this morning, is to do everything we can to prevent grade 
crossing accidents. Thank you for the opportunity to testify 
today.
    Mr. LaTourette. Thank you, Mr. Hamberger.
    Ms. Hall, welcome, we look forward to hearing from you.
    Ms. Hall. Chairman LaTourette, Ranking Member Brown, we 
really appreciate the opportunity to testify during this 
hearing on railroad grade crossing safety issues.
    Operation Lifesaver began in 1972 as a one-time only, six 
week public awareness campaign. Idaho Governor Cecil Andrus, 
the Union Pacific Railroad, and the Idaho Peace Officers, which 
is what they call their Highway Patrol, had decided that there 
was too high an incidence of vehicle-train collisions in their 
State and they decided to do something about it.
    The first Operation Lifesaver safety speakers that they 
sent out spoke to the same groups that we focus on today--
professional truckers, school bus drivers, school children, new 
drivers, and community groups. In its first year, Idaho 
Operation Lifesaver saw a 43 percent reduction in fatalities in 
the State. Inspired by Idaho's success, Nebraska, Georgia, and 
Kansas tried the new approach and experienced similar results. 
Collision rates in those States dropped between 26 and 75 
percent in the first year after Operation Lifesaver education 
programs began.
    By 1986, grassroots Operation Lifesaver programs were 
active in 49 States. They were joined in 2002 by Washington, 
D.C. I would note the Ohio State Coordinator for Operation 
Lifesaver, Sheldon Senek, is seated behind me in the audience. 
He joined us in 2001 after a distinguished career with the Ohio 
State Highway Patrol from which he retired as Lieutenant 
Colonel and Assistant Superintendent.
    Operation Lifesaver's messages today are delivered by our 
more than 3,000 trained volunteer presenters. In the beginning, 
most of them were railroad employees. Today, a third of them 
are law enforcement and emergency responders who have had to 
deal with a tragic collision on the rails. Safety speakers use 
the materials developed by Operation Lifesaver's Program 
Development Council. This council is made up of 37 members 
representing the State coordinators, Federal agencies, and 
national associations with a role in railroad safety, and 
representatives of four of the Nation's Class 1 railroads. The 
PDC also includes a representative from the Department of 
Homeland Security, and a suicide prevention expert because of 
our changing times.
    Operation Lifesaver is highly regarded internationally and 
has been a model for railroad safety around the world. There 
are Operation Lifesaver programs in Canada, Mexico, Panama, 
England, Argentina, and Estonia, and the Estonians are 
translating their Operation Lifesaver materials into Finnish 
and Russian in hopes of spreading the program to those 
countries as well.
    Here in this country, we receive support from the U.S. 
Department of Transportation, FRA, FHWA, FTA, NHTSA, and 
Federal Motor Carrier Safety Administration, NTSB, and 
associations representing commercial trucking, public transit, 
the police chiefs, fire chiefs, sheriffs, school 
transportation, labor, State highway safety programs, the 
railway suppliers, and the railroads. About 90 percent of our 
funding comes from the Federal Government.
    I will not go into the details of all our education 
programs, how we train our folks, how we work with emergency 
responders and law enforcement, our public service 
announcements. But I do want to note what we believe to be 
Operation Lifesaver's share in the good results that have come 
in the last 30 years in highway-rail grade crossing safety. We 
are proud to be one of the many partners who has contributed to 
the 70-plus percent safety improvement during the last 33 
years.
    What is Operation Lifesaver contributing? In July 2003, Dr. 
Ian Savage, an economist from Northwestern University, 
published a report that concluded that about two-fifths of the 
decrease in collisions and fatalities since 1975 was due to 
general highway improvements, such as drunk driving reductions 
and improved emergency medical response. Installation of gates 
and flashing lights was accounted as having contributed one-
fifth of the reduction. Closure of crossings, about one-tenth 
of the reduction, and Dr. Savage found that Operation 
Lifesaver's public education activities had led to about one-
seventh of the reduction in fatalities.
    More recently, Dr. Savage has calculated that Operation 
Lifesaver has averted approximately 2,200 incidents and 3,200 
deaths between 1975 and 2001. His analysis of Operation 
Lifesaver State activities indicates that doubling the number 
of education activities in a State reduces the number of 
collisions by 11 percent. He notes the annual benefit-cost 
ratio for Operation Lifesaver would be 101 to 1. So we hope you 
will continue to believe that we are a good investment.
    But frankly, one single person's death at a grade crossing 
or on the tracks is too many. And in addition to the work that 
we do in highway-rail grade crossing safety, we have other 
emerging challenges. We have just begun to work with the light 
rail industry to develop specific materials for them. We are 
somewhat challenged by the shortage of safety statistics and 
demographic studies in that area.
    Pedestrian safety and trespass prevention. In 1997, 
highway-rail grade crossing fatalities were exceeded by 
pedestrian incidents, where a pedestrian is injured or killed 
while unlawfully walking, hiking, or playing on tracks. This 
tragic trend continues to frustrate us and we are working with 
all of our partners to try to devote the attention this problem 
needs.
    Rail security. Pedestrian activity around tracks has 
implications for rail security. In 2004, we invited a 
representative from the Transportation Security Administration 
(TSA) to work with us to develop tips and security advisories 
for rail fans and others to help.
    Bad ads and entertainment images. We are convinced that 
entertainment and advertising images showing unsafe and illegal 
motorist and pedestrian behavior on the rails is unwittingly 
contributing to our national rail safety problems. Recently in 
response to complaints, Nissan Motors discontinued a television 
ad campaign showing an Altima speeding toward a railroad grade 
crossing with lights flashing and gates lowering, and at the 
last minute the lowered gates pivot to stop an approaching 
train. This does not happen in reality. In reality it would 
have been tragedy.
    Country Music Television and MTV often show their stars 
strolling down the tracks, leading young fans to believe it is 
okay to be there, and they both discredit and actually ridicule 
Operation Lifesaver's concern.
    Suicide prevention. For the last several years, our 
partners in Britain and Canada have noted that suicides are on 
the rise on railroad property. Unfortunately, Federal 
statistics on this trend are not collected by the FRA or any 
health organization in the United States. But we are told by 
State officials that for every ten pedestrian or rail 
trespassing fatalities reported to the FRA, there are at least 
another three suicides by rail, and we need to deal with this.
    In closing, thank you again for inviting me to update the 
Railroad Subcommittee. With your support, we have made good 
strides. Our work is definitely not done. And as long as there 
are families like the Moores who have suffered terrible 
tragedy, we are not finished. So we commit ourselves to you and 
to our partners and our international colleagues to find 
solutions to the problems that remain in grade crossing safety 
and to find ways to meet our new challenges.
    Thank you again.
    Mr. LaTourette. Thank you, Ms. Hall.
    Mr. Pickett, welcome, and we look forward to hearing from 
you.
    Mr. Pickett. Good afternoon, Mr. Chairman and members of 
the Committee. It is an honor for me to testify before this 
Committee once again in order to address railroad grade 
crossing safety issues.
    The Nation's highway grade crossings offer one of the most 
serious public safety hazards on today's railroad system. 
Crossing accidents represent, by far, the greatest source of 
fatal accidents in the railroad industry. Approximately one-
third of all highway-rail grade crossings have some type of 
active warning devices. That leaves two-thirds of our Nation's 
crossings with no active warning devices on them.
    When discussing highway-rail grade crossing safety, it is 
important to understand the major malfunctions of these 
systems: false activations and activation failures. False 
activation means the activation of a grade crossing warning 
system caused by a condition that requires correction or repair 
of the grade crossing warning system. This failure indicates to 
the motorist that it is not safe to cross the railroad tracks 
when, in fact, it is safe to do so.
    Activation failure means the failure of an active grade 
crossing warning system to indicate the approach of a train at 
least 20 seconds prior to the train's arrival at the crossing. 
This failure indicates to the motorist that it is safe to 
proceed across the railroad tracks when, in fact, it is not 
safe to proceed across the tracks. Activation failures are the 
more serious of the two.
    Following three highway-rail grade crossing warning device 
activation failures this year, the FRA and the BRS have been 
trying to increase the awareness of possible shortcomings of 
some crossing warning systems and the necessary training to 
prevent it. The FRA has identified three different issues on 
crossing warning device safety: manual cut-outs, fouling 
circuits, and crossing design and testing integrity.
    Design deficiencies and omissions are of particular 
concern, and BRS members are more likely to find a problem and 
prevent an accident or an incident than anyone else. A properly 
designed system can eliminate the need to use manual cut-outs 
and the problems associated with fouling circuits in close 
proximity to highway-rail grade crossings.
    Throughout the history of grade crossing signal systems 
there have always been changes in technology to provide better 
protection to the traveling public. DC relay grade crossing 
signal systems have been in place close to 100 years and a lot 
of them are still in place today.
    The introduction of computers and solid-state equipment has 
improved many aspects of how we detect the presence of trains 
and warn the traveling public. It is important to note that 
both the old technology and the new systems protect the 
traveling public with a high degree of accuracy and are very 
safe. However, both systems have their pluses and minuses, and 
neither is 100 percent perfect.
    In the BRS we have seen the steady decline in our 
membership. As a matter of fact, over the last five years the 
railroads have cut over 12 percent of the signal jobs in the 
country. There are two types of signal jobs--construction and 
maintenance. Construction jobs consist of multiple signalmen 
who travel across the railroad property performing various 
construction tasks. Signal maintainers are subject to call 24 
hours a day, 7 days a week. They usually work alone, and they 
have a multitude of responsibilities concerning compliance with 
many of our Federal railroad regulations.
    In the past you had the most experienced signalmen on the 
most difficult jobs and the least experienced signalmen on 
construction jobs. Due to the reductions in the overall 
staffing levels, which brought lengthened territories and 
increased responsibility, the more experienced signalmen are 
opting to work in construction and the younger, least 
experienced signalmen are now being forced onto some of our 
most hot jobs.
    In the past, if anyone wanted to work on anything that 
affected the normal function of the highway grade crossing 
signal systems, signal personnel would be dispatched to 
establish the protection of the public and the railroad 
employees at the crossing affected. And when that work was 
completed, signal employees would test the grade crossing 
signal systems to ensure they functioned properly as they were 
restored to service.
    Staffing levels have gotten so low, many railroads are 
trying to institute policies or procedures that permit non-
signal personnel to place shunts down on tracks or jumpers 
around track work to supersede the intended functioning of 
highway grade crossing signal systems. The inability to perform 
adequate testing and the failure to comply with the minimum 
Federal regulations have contributed, if not caused, many of 
our recent accidents.
    When ensuring safety at grade crossings, training and 
education is another key preventive measure that needs to be 
considered. In most cases the training period for an assistant 
signalman is two years of on-the-job training coupled with 
eight weeks of training, comprised of two-week intervals every 
six months.
    Due to the technology advances in grade crossing signal 
systems, advanced training is also necessary to stay abreast of 
the changes in the field. We continue to work to implement 
advanced training provisions which were agreed to by the 
industry in 1991, but to date have not been implemented on many 
of our Nation's railroads.
    The BRS believes that four quadrant gates offer an 
immediate, near term solution to the problem of providing grade 
crossing safety on all rail lines. Because of the inherent 
safety value, the Brotherhood of Railroad Signalmen believes 
that four-quadrant gates should be considered as a minimum 
standard for all current rail projects where grade crossing 
warning systems are installed.
    The incorporation of a nationwide telephone notification 
system would greatly improve safety for our Nation's railroad 
grade crossing systems.
    There is much to accomplish to make the Nation's rail grade 
crossing safer for our communities, the traveling public, and 
for the employees. By focusing on improved infrastructure, 
proper staffing, and adequate training improved highway grade 
crossing can become a reality.
    Thank you for the opportunity to speak.
    Mr. LaTourette. Mr. Pickett, thank you very much.
    Mr. Worley, welcome to you. We look forward to hearing from 
you.
    Mr. Worley. Chairman LaTourette, Ranking Member Brown, and 
Committee members, I am pleased to have the opportunity to come 
before you and discuss highway-railroad grade crossing safety 
issues. I am with the North Carolina Department of 
Transportation and I represent AASHTO at this meeting today.
    My testimony will make the following points: dedicated 
Federal funding of crossing safety and new technology has 
worked well and those programs should be retained and 
strengthened; at-grade crossing closure and grade separation 
should be made a high priority; and quiet zones are potentially 
a move in the wrong direction considering that eliminating 
crashes is our highest priority for limited resources.
    AASHTO has a standing policy resolution supporting the 
continued dedicated funding of the Section 130 Federal crossing 
safety program for projects, which includes signalization 
enclosure. This resolution also supports increasing the current 
incentive payment amount for crossing closures. These policies 
are covered in further detail in AASHTO's Bottom Line report.
    Section 130 has been most effective through its funding of 
projects. FHWA estimates that it has prevented over 10,500 
fatalities and 51,000 injuries since this national program was 
initiated in 1973. Since 1994, the annual grade crossing 
accident rate has been reduced by over 48 percent. The benefit-
cost ratio of the Section 130 program is estimated at two to 
one.
    North Carolina, Ohio, and other States have taken advantage 
of the opportunities afforded by Section 130. In addition to 
using funds for crossing signalization, we are directing these 
funding sources to corridor projects including closures and 
related mitigation projects.
    Section 130 makes good business sense. The elimination of 
highway-railroad crashes not only saves lives, bodily injury, 
and property damage, it keeps our railroads and highways 
moving. Crossing consolidation and elimination is the most 
cost-effective crossing safety treatment. The safest crossing 
is one that is not there. North Carolina, like many States, has 
enjoyed success in collaborating with railroads and local 
governments in this endeavor. Elimination of crossings can also 
save capital investment and annual maintenance dollars for 
public agencies and railroads.
    We encourage FHWA and FRA to advocate for crossing 
consolidation and elimination as a preferred safety alternative 
when feasible. Fewer crossings equates to less access to our 
tracks and thus a more secure railroad system. The security of 
our homeland's infrastructure is paramount and the Metrolink 
crash earlier this year in California demonstrated what impact 
a vehicle entering a rail corridor could have on the rail 
transportation system.
    Since 1992, North Carolina has closed over 100 public 
crossings statewide through engineering studies, worked with 
communities and adopted polices and guidelines encouraging 
closures and discouraging new crossings. While additional 
closures are pending, they are never easy. Public and political 
opposition can create difficulties in meeting these safety 
goals.
    More highway-railroad grade separations must be built if we 
are to develop rail passenger and high density freight 
corridors. A program in Ohio provides State funding for grade 
separations and includes a railroad and local government match. 
This is a good model and it should be considered nationally.
    In an effort to reduce crossing crashes, North Carolina's 
Sealed Corridor Initiative took a corridor approach to the 
testing of new technologies. This endeavor is a joint effort 
between our State and Norfolk Southern Corporation. FRA granted 
funds for safety research and development.
    This funding was initially used for data-gathering and a 
series of video monitored tests. Enhanced devices were 
installed at selected crossings, including median separators, 
longer gate arms, and four quadrant gates. These devices 
reduced the number of gate-running violations ranging from 77 
to 98 percent, and my written testimony provides further detail 
on this matter.
    Following our successful tests, we expanded the project on 
a corridor basis between Raleigh and Charlotte, thus sealing 
the corridor. Each crossing was treated based on need, 
including closure and grade separation.
    In 2001, we initiated a phase of the Sealed Corridor to 
study and to treat the remaining private crossings on the 
corridor. Those crossings that are not provided alternate 
access and closed are being treated with signals, manual 
locking gates, special signage and sight distance improvements. 
We have closed 64 public and private crossings on the Sealed 
Corridor and are improving the remainder thanks to the 
availability of Federal Section 130 and Next Generation High 
Speed Rail grant funding directed towards crossing safety.
    In 2002, a U.S. DOT report documented the benefits of the 
Sealed Corridor from 1995 through 2000 and concluded that five 
lives were saved during the study period at the crossings 
evaluated. It further noted that positive benefits of the 
improvements will grow as vehicle and train volumes increase. 
FRA is updating the study and North Carolina DOT and Norfolk 
Southern continues to monitor using a locomotive video system. 
FRA's Next Generation High Speed Rail program provided the 
grant funding and was critical to the success of the project. 
We believe the program should be funded and continued.
    Illinois, Florida, and California are among those States 
that have made great strides toward improving at-grade crossing 
safety by using enhanced devices based, in part, on this 
research. Enhanced devices have enabled us to raise the bar for 
safety. We understand the issue of quiet zones and this now 
governed by FRA's Locomotive Horn Rule.
    However, using proven safety enhancements to mitigate train 
horns as a quality of life issue rather than increasing the 
safety protection at crossings with horns is going in the wrong 
direction. Eliminating vehicle and train crashes is our goal 
and related funding and staff effort should be focused 
accordingly.
    In closing, States know there is still much to do to 
improve crossing safety. While we know how to make crossings 
safer, it is still the driver's responsibility to adhere to 
laws and practice good driving habits, always expecting a 
train.
    Mr. Chairman, I appreciate the opportunity to provide 
testimony. If you have any questions, please let me know. 
Thanks for your continued support.
    Mr. LaTourette. Mr. Worley, thank you very much for coming 
today, and thank all of you for your testimony.
    Mr. Worley, I am glad you mentioned the Ohio program. In 
Ohio now our Governor is under attack for investing in coins 
and some other stuff, but before he was doing that he did 
launch the grade separation program in the State of Ohio and 
dedicated a substantial amount of money.
    I know just in the small corner of the State that I have we 
have been able to build three grade separations. Not only is it 
safety, but it is safety-plus in that you do not have blocked 
crossings, aside from dangerous crossings, and you can get your 
ambulances through, your fire trucks, and it makes it just a 
safer world. So I would hope that other people would copy Ohio 
at least in that regard, maybe not with the coins, but in the 
grade separations.
    Mr. Hamberger, sort of the major theme of your testimony is 
this whole business about redundant crossings and closing 
redundant crossings. If I could take you back in time maybe to 
1994, what I think some people in Congress thought was going on 
with the whistle ban was that it was to provide a carrot and a 
stick approach to communities--the carrot being that if you did 
not want a train whistle blowing and waking you up at 4:00 in 
the morning, you should engage in the quadrant gates that Mr. 
Pickett talked about or you should really bullet-proof these 
grade crossings; the stick being if you did not want to spend 
any money upgrading your crossings, you are going to have 
people waking up with noises.
    To put it bluntly, I think the anecdotal evidence suggests 
that communities have not really responded to that carrot and 
stick approach and that the political pressure that elected 
officials are subject to in some of these smaller communities 
is we have some people who would apparently think it was okay 
or better for some of their neighbors to get killed at railroad 
crossings than it would be to drive three blocks and cross at 
one of these improved crossings.
    How do you think we crack that nut? We tried to do it with 
the whistle ban. What do you think we have to do to get 
people's attention on some of these redundant rail crossings?
    Mr. Hamberger. Let me just start I guess by addressing the 
issue of the whistle being blown itself. In that regard, I find 
myself, as I often do, on the same side as Ms. Brown when she 
was back in the State of Florida legislature supporting the 
blowing of the horn, because it was in fact in her State that 
the real world data first appeared that blowing of the horn 
does have a 60 percent impact on accident rate. So therefore, 
we are very much in favor of continuing to have the rule be 
that the horn does get blown.
    Then the question is what exceptions can there be to that 
rule. We have been very consistent through the ten year exodus 
of this rule in urging the FRA to adopt some sort of 
supplemental safety device, which I believe they did. I guess 
the rule has just gone into effect, maybe not officially in 
effect, depending on your point of view.
    Mr. LaTourette. We are waiting for the lawyer's letter.
    [Laughter.]
    Mr. Hamberger. Yes. We will figure that out. But I think 
that some of the reticence of the local communities to act was 
waiting for that final rule to determine what would qualify as 
a supplemental safety device. I believe I heard Administrator 
Boardman say that there have been 240 applications for quiet 
zones in the last 60 days. So it seems to me that maybe now 
that the rule is out there that there will be more action at 
the local level.
    A broader answer, of course, is to go back to my testimony 
where I comment that each of the Class I carriers, but I 
emphasized two, the BNSF and KCS programs, although everybody 
has them, are working with, as Mr. Worley has indicated, 
working with the AASHTO, working with the local communities, 
working with the State DOTs trying to figure out a way to make 
sure that there is adequate safety at the crossings so that the 
whistle can be quiet as they go through.
    Mr. LaTourette. Okay. I thank you for that. Ms. Moore was 
originally going to be on this panel and I asked unanimous 
consent to put her up in the first panel because I was struck 
by a couple of things in her testimony that we had a chance to 
review before the hearing and I wanted this panel to listen to 
her observations and you could sort of cogitate on that.
    First to you, Mr. Hamberger, her observations about the 
railroad industry having inadequate regulations or procedures 
for dealing with line of sight difficulties. Let us talk about 
vegetation first and then we can talk about line of sight in 
particular. I know you were in the room when she testified. How 
would you respond on behalf of the industry to those 
observations?
    Mr. Hamberger. Again, each of the AAR members has an 
aggressive vegetation control program. No program is perfect, 
but there is no Federal vegetation regulation, each State is 
different, and we do comply with those State regulations. With 
respect to the Federal Highway Administration line of sight, 
and I am going to have to defer to Commissioner Worley here as 
to exactly how that works at the State DOT level, but we can 
only be responsible for the right-of-way which we own.
    And so if you are designing a new grade crossing now, I 
think there are standards that the Federal Highway 
Administration has for designing new crossings, but if there is 
a building on private property within 300 feet of the grade 
crossing but it is not on our right-of-way, there really is not 
very much we can do about it. I know that we do support and we 
have had people working on the AASHTO and FHWA committee, and I 
think you were on that with Bill Browder of our shop and maybe 
you can shed more light on it.
    Mr. LaTourette. Mr. Worley, do you have something to talk 
about relative to that?
    Mr. Worley. Yes, sir. It is a complex issue because you 
have got a limited railroad right-of-way. For instance in North 
Carolina, we have a State owned railroad that is 200 foot wide, 
and that is extremely wide. Most railroad rights-of-way are 
anywhere from 15 foot wide, to 60 foot, to 120 foot, and then 
you have got the State maintained road where the right-of-way 
is only the maintained limit to the road, which is the ditches 
and the asphalt or the dirt. So you do not have the right-of-
way in a lot of cases to make the sight distance improvements 
we would like to make.
    In many cases at the State DOT level, we find ourselves 
supporting the railroads when they go through trying to cut 
their sight distance by telling these property owners that this 
is good for safety they are cutting within their right-of-way, 
and we know that is your very favorite yellowbell bush that 
your grandmother gave you but it has got to be cut back. So it 
is complex and it is not a very simple matter to just go out 
and cut.
    Mr. LaTourette. I thank you for that. Mr. Hamberger, back 
to you for just a second. I think one of the statistics, and I 
heard you say the reporting requirements in your opinion are 
complicated, but I would like your comment on Inspector General 
Mead's observation that the railroads are under-reporting by 21 
percent to the National Response Center.
    Mr. Hamberger. More importantly, Mr. Chairman, it is not my 
observation, it was Inspector General Mead's observation that 
there are eight different criteria for reporting and it was his 
observation that there was confusion and that the 
clarification, simplification of the reporting system should be 
carried forth. Having said that, there is a total commitment on 
behalf of our members to comply with every reporting 
requirement.
    I would like it underscored that Mr. Mead indicated he 
found no evidence of misfeasance, number one, and number two, 
that no one is trying to hide the ball here. Every accident was 
reported at least to the FRA. But having said that, we will 
redouble efforts, as I know every member has already indicated 
that they have, to comply with the reporting requirements.
    I indicated in my oral statement that I do believe there is 
room for additional material to be collected. The Federal 
Highway Administration does have something called FARS, the 
Fatality Analysis Reporting System, maintained by NHTSA, and 
that maybe since there is a system already set up, Mr. Boardman 
indicated he was talking to the other administrators, we would 
support the gathering of any and all accident reports filed 
either by those people involved in the accident or the local 
law enforcement officials.
    Mr. LaTourette. I am glad to hear you say that because I 
was encouraged by Administrator Boardman's comment about that. 
I do not subscribe any sinister motive to the railroads, but 
when I practiced law, apparently not as well as Mr. Bachus, but 
when I practiced law we had an expression that five people 
could see the same accident and you could get five different 
statements and reports.
    I do think that it would be instructive to have more than 
just the railroad's perspective on how that accident happened. 
And if the Administrator is now talking about including a 
section of that where local law enforcement would be consulted, 
I know that Ms. Hall talked about the fact that she has on her 
board someone from our very highly respected State Highway 
Patrol. I think the observations of others at the scene may 
help not only find out what happened at a particular crossing, 
but give the railroads some insight and the Federal Government 
some insight as to how we can do better at that particular 
crossing.
    Mr. Hamberger. Absolutely correct. And if I might just add, 
that is one of the driving forces behind Norfolk Southern's 
independent effort to put cameras on the head end of all their 
locomotives. I know they have, as we heard here this afternoon, 
a cooperative effort with the State of North Carolina, and I 
believe all the other Class 1s have made commitments as well to 
put the cameras on the head end so that these accidents and 
other data can be recorded.
    Mr. LaTourette. Good. Thank you very much. Ms. Brown.
    Ms. Brown. Thank you, Mr. Chairman. Mr. Hamberger, at the 
last hearing on new technology in rail safety and security, you 
and Mr. Pickett agreed to get together and discuss what can be 
done to improve worker training in the rail industry. Can you 
and Mr. Pickett give us an update on the progress of those 
meetings?
    Mr. Hamberger. We had a meeting scheduled at his new 
headquarters in Front Royal, Virginia about three weeks ago 
which, unfortunately, had to be postponed. We have talked here 
this morning about trying to get together again.
    In the meantime, our security committee has met with a 
group called the National Transportation Institute, which is at 
Rutgers University, which has developed national standards for 
training for the mass transit industry. We have asked them to 
help us put together some standardized training program for 
freight rail as well, and obviously I will be talking to Mr. 
Pickett about that when we do get together.
    Ms. Brown. Mr. Pickett?
    Mr. Pickett. I agree with what he said. I was the one that 
canceled the meeting. I did not know about his new study and I 
am anxious to hear about it. I still do not know of any 
training going on right now.
    Ms. Brown. Okay. I have a question for each of the 
panelists. We have discussed it throughout the morning and now 
into the afternoon, I think this has been a great hearing, Mr. 
Chairman, and that is despite recent progress, the number of 
accident fatalities and injuries at grade crossings and across 
the entire rail network has increased in 2004. What do each of 
you think that Congress can do to improve rail safety? We will 
start with you, Mr. Hamberger.
    Mr. Hamberger. I think Congress' main effort could be 
increased funding for the Section 130 grade crossing program. I 
know that is something you have been fighting for. Frankly, I 
wish we had had Ms. Moore on our side with the coalition that 
we had put together, I wish we had been able to work with her 
at our side and perhaps we would have gotten even more money 
than we are already going to get. Thanks to your efforts we are 
going to get some increase in that.
    Long term, I mentioned the idea of trying to make the 
National Highway System totally grade crossing free. The 
Interstate system was designed with that in mind. The NHS would 
be the next logical step. Our data indicate that approximately 
4,500 grade crossings intersect the National Highway System. I 
am told by the Federal Highway Administration that the amount 
of vehicle miles travelled, both commercial and personal, is 
approaching 50 percent on the NHS. If we could have a long term 
goal to close and/or separate those grade crossings, I think 
that we could just by volume numbers alone take away a lot of 
the potential accidents out there.
    Ms. Hall. Certainly, the reauthorization of the highway 
bill is important to everyone in the highway-rail crossing 
community. I would also add that from our perspective, it was 
raised by Congresswoman Johnson this morning, light rail is a 
very blooming, blossoming, hugely expanding area of concern to 
us at Operation Lifesaver because we have just begun developing 
educational materials for those folks that are dealing with 
brand new light rail systems that they do not really have any 
experience dealing with. They are different systems, they 
operate differently, they have trains running down the middle 
of the city streets.
    So we have tapped into developing educational materials for 
young people, but we really need to continue our efforts of 
outreach to light rail and to educate that populace.
    Mr. Pickett. I would have to say that I agree with them on 
the Section 130 funding, we definitely can use more of that. 
But I think it has to be looked at, as someone spoke earlier 
and said that close to 50 percent of crossing accidents had 
warning devices, and I would submit to you that where that 
happens is normally with only the flashers, not the gates.
    The information that the North Carolina corridor has been 
able to provide, and in California also where we are using four 
quadrant gates and with the barriers in between, the cost is so 
minimal for the difference in two more gates and some other 
material, it is very minimal, and it actually almost prevents 
the accidents. It is in the 90s if you use the barriers and the 
four quadrant gates.
    So I would submit that more consideration needs to be given 
to that, that when they apply for the grade crossings that they 
look at the traffic and use the four quadrant gates in any 
areas that they can.
    Ms. Brown. Mr. Pickett, can I have your recommendation in 
writing, along with the others, about what Congress can do?
    Mr. Pickett. Certainly.
    Ms. Brown. Okay. Thank you.
    Mr. Worley. And I would add from the State point of view, 
continue the dedicated funding like Section 130 and the R&D. 
One thing about this is in our country you have a lot of urban 
sprawl and you are going to continue to have it, you are going 
to have traffic increasing on these farm to market and 
neighborhood crossings and we are going to need to find a way 
to close them, or protect them, or grade separate.
    We need support in crossing closure goals. We are out there 
fighting for these closures. We are not doing closures 
haphazard or ambiguously, we are out there doing engineering 
studies in corridor projects and public involvement, and it 
would be really nice to say that there is a national goal, 
there is something we are trying to meet there.
    Also, the grade separations there as well. And then 
finally, we need to make sure that we stay focused on directing 
our resources, our scarce resources toward safety. The quiet 
zone application process is going to be a distraction for 
States and the personnel that are involved in protecting our 
crossings are going to be spending a great amount of time 
working with communities to satisfy these quiet zone 
regulations and turning over the box, some of them successful, 
some of them may not be, but we will still spend quite a bit of 
time on that issue.
    Mr. LaTourette. I thank the gentlelady. I just have one 
more question that I forgot to ask, and then if Ms. Brown has a 
couple more questions, we will let her ask those. My question 
is to you, Mr. Worley, and it really does not have anything to 
do with why we are here in terms of dangerous intersections for 
automobiles.
    But this whole issue of humped crossings, it seems to me up 
in New England there was a pretty serious accident where the 
load bed got hold of the hump, a couple hundred people were 
injured. The problem is the municipality, the State, the 
Federal, whoever is responsible for the road coming up to the 
crossing, and then the railroad is responsible obviously for 
the maintenance of their right-of-way. Has AASHTO looked at the 
difficulty of these humped crossings at all and some of the 
dangers that are posed? And if not, is that something that 
maybe AASHTO could put into some of its engineering models?
    Mr. Worley. We have looked at that and have been involved 
in working with FHWA and FRA on that issue. First of all, back 
around ten years ago, as part of the Blue Ribbon Task Force I 
was actually a part of, we talked a great deal about humped 
crossings. One of the things that we kept saying from the State 
level is you need to identify them, mark them, and then come up 
with a long range plan to get rid of them.
    One of the things about the railroad is if you have got a 
main line track and you are running heavier cars for all the 
economic development, industrial development we have across the 
country, you are going to be raising the track, you are going 
to be trying to make your rail bed better and better, get it 
out of the mud so you do not have derailments.
    So the railroad track is going to be raised. The issue of 
trying to meet it, you have got to try to, like I say, identify 
it. AASHTO is working with our Motor Carrier committees within 
our group and trying to implement the NTSB goal of better 
communication when we have over-weight, over-size truck 
permits, letting them know that the route that they are 
planning to take is a humped crossing, to take another route. 
But we have got to come up with some long range plan, at least 
have a plan in place to get rid of these crossings, be it 
closure or some serious improvements so that we can eliminate 
the hump.
    Mr. LaTourette. Okay. Thank you very much.
    Do you have any more questions, Ms. Brown?
    Ms. Brown. I guess we are going to have an opportunity to 
submit additional questions, Mr. Chairman. So I yield back the 
balance of my time. I want to thank everybody for their 
participation in the hearing.
    Mr. LaTourette. I thank the gentlelady very much and I want 
to echo Ms. Brown's observations. I want to thank all of the 
witnesses and all of the panels today. I thought this was a 
productive hearing. If there are additional questions or 
observations, we will submit those to you, and if you would get 
back to the Subcommittee in a timely fashion we would 
appreciate it. I appreciate the last panel for coming close to 
the five minute rule on every occasion. Thank you.
    This Subcommittee is adjourned.
    [Whereupon, at 1:58 p.m., the subcommittee was adjourned.]
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