[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
           REAUTHORIZATION OF THE FEDERAL RAIL SAFETY PROGRAM

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

                                (110-5)

                                HEARINGS

                               BEFORE THE

                            SUBCOMMITTEE ON

             RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                        JANUARY 30 AND 31, 2007

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure

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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia    JOHN L. MICA, Florida
PETER A. DeFAZIO, Oregon             DON YOUNG, Alaska
JERRY F. COSTELLO, Illinois          THOMAS E. PETRI, Wisconsin
ELEANOR HOLMES NORTON, District of   HOWARD COBLE, North Carolina
Columbia                             JOHN J. DUNCAN, Jr., Tennessee
JERROLD NADLER, New York             WAYNE T. GILCHREST, Maryland
CORRINE BROWN, Florida               VERNON J. EHLERS, Michigan
BOB FILNER, California               STEVEN C. LaTOURETTE, Ohio
EDDIE BERNICE JOHNSON, Texas         RICHARD H. BAKER, Louisiana
GENE TAYLOR, Mississippi             FRANK A. LoBIONDO, New Jersey
JUANITA MILLENDER-McDONALD,          JERRY MORAN, Kansas
California                           GARY G. MILLER, California
ELIJAH E. CUMMINGS, Maryland         ROBIN HAYES, North Carolina
ELLEN O. TAUSCHER, California        HENRY E. BROWN, Jr., South 
LEONARD L. BOSWELL, Iowa             Carolina
TIM HOLDEN, Pennsylvania             TIMOTHY V. JOHNSON, Illinois
BRIAN BAIRD, Washington              TODD RUSSELL PLATTS, Pennsylvania
RICK LARSEN, Washington              SAM GRAVES, Missouri
MICHAEL E. CAPUANO, Massachusetts    BILL SHUSTER, Pennsylvania
JULIA CARSON, Indiana                JOHN BOOZMAN, Arkansas
TIMOTHY H. BISHOP, New York          SHELLEY MOORE CAPITO, West 
MICHAEL H. MICHAUD, Maine            Virginia
BRIAN HIGGINS, New York              JIM GERLACH, Pennsylvania
RUSS CARNAHAN, Missouri              MARIO DIAZ-BALART, Florida
JOHN T. SALAZAR, Colorado            CHARLES W. DENT, Pennsylvania
GRACE F. NAPOLITANO, California      TED POE, Texas
DANIEL LIPINSKI, Illinois            DAVID G. REICHERT, Washington
DORIS O. MATSUI, California          CONNIE MACK, Florida
NICK LAMPSON, Texas                  JOHN R. `RANDY' KUHL, Jr., New 
ZACHARY T. SPACE, Ohio               York
MAZIE K. HIRONO, Hawaii              LYNN A WESTMORELAND, Georgia
BRUCE L. BRALEY, Iowa                CHARLES W. BOUSTANY, Jr., 
JASON ALTMIRE, Pennsylvania          Louisiana
TIMOTHY J. WALZ, Minnesota           JEAN SCHMIDT, Ohio
HEATH SHULER, North Carolina         CANDICE S. MILLER, Michigan
MICHAEL A. ACURI, New York           THELMA D. DRAKE, Virginia
HARRY E. MITCHELL, Arizona           MARY FALLIN, Oklahoma
CHRISTOPHER P. CARNEY, Pennsylvania  VERN BUCHANAN, Florida
JOHN J. HALL, New York
STEVE KAGEN, Wisconsin
STEVE COHEN, Tennessee
JERRY McNERNEY, California

                                  (ii)



     SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS

                   CORRINE BROWN, Florida Chairwoman

JERROLD NADLER, New York             BILL SHUSTER, Pennylvania
LEONARD L. BOSWELL, Iowa             THOMAS E. PETRI, Wisconsin
JULIA CARSON, Indiana                WAYNE T. GILCHREST, Maryland
GRACE F. NAPOLITANO, California      STEVEN C. LaTOURETTE, Ohio
NICK LAMPSON, Texas                  JERRY MORAN, Kansas
ZACHARY T. SPACE, Ohio               GARY G. MILLER, California
BRUCE L. BRALEY, Iowa                HENRY E. BROWN, Jr., South 
TIMOTHY J. WALZ, Minnesota           Carolina
NICK J. RAHALL II, West Virginia     TIMOTHY V. JOHNSON, Illinois
PETER A. DeFAZIO, Oregon             TODD RUSSELL PLATTS, Pennsylvania
JERRY F. COSTELLO, Illinois          SAM GRAVES, Missouri
EDDIE BERNICE JOHNSON, Texas         JIM GERLACH, Pennsylvania
ELIJAH E. CUMMINGS, Maryland         MARIO DIAZ-BALART, Florida
MICHAEL H. MICHAUD, Maine            LYNN A. WESTMORELND, Georgia
DANIEL LIPINSKI, Illinois            JOHN L. MICA, Florida
JAMES L. OBERSTAR, Minnesota           (ex officio)
  (ex officio)

                                 (iii)








                                CONTENTS

Proceedings of:

  January 30, 2007...............................................     1
  January 31, 2007...............................................   152

                            JANUARY 30, 2007

Summary of Subject Matter........................................    41

                               TESTIMONY

                                                                   Page
Boardman, Hon. Joseph H., Administrator, Federal Railroad 
  Administration.................................................     9
Gonzalez, Hon. Charles A., a Representative in Congress from 
  Texas..........................................................     6
 Scovel, Hon. Calvin L., III, Inspector General, U.S. Department 
  of Transportation..............................................     9
 Siggerud, Katherine, Director of Physical Infrastructure Issues, 
  U.S. Government Accountability Office..........................     9
 Sumwalt, Hon. Robert L., III, Vice Chairman, National 
  Transportation Safety Board, accompanied by Bob Chipkevich, 
  Director, Office of Railroad, Pipelines and Hazardous Materials 
  Investigations, National Transportation Safety Board...........     9

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Brown, Hon. Corrine, of Florida..................................    65
Costello, Hon. Jerry F., of Illinois.............................    71
Cummings, Hon. Elijah E., of Maryland............................    73
Gonzalez, Hon. Charles A., of Texas..............................    78
Mica, Hon. John L., of Florida...................................    85
Oberstar, Hon. James L., of Minnesota............................    90
Walz, Hon. Tim, of Minnesota.....................................   146

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Boardman, Hon. Joseph H..........................................    49
 Scovel, Hon. Calvin L., III.....................................    94
 Siggerud, Katherine.............................................   119
 Sumwalt, Hon. Robert L., III....................................   141

                       SUBMISSIONS FOR THE RECORD

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

  Response to a question from Rep. Shuster.......................    21
  Response to a question from Rep. Braley........................    25
  Response to a question from Rep. Napolitano....................    32
 Scovel, Hon. Calvin L., III, Inspector General, U.S. Department 
  of Transportation, responses to questions from Rep. Brown......   111
 Siggerud, Katherine, Director of Physical Infrastructure Issues, 
  U.S. Government Accountability Office, responses to questions 
  from Rep. Brown................................................   136

                         ADDITION TO THE RECORD

Larson, Steve, Executive Director, California Public Utilities 
  Commission. statement..........................................   147

                            JANUARY 31, 2007
                               TESTIMONY

                                                                   Page
 Hamberger, Edward R., President and Chief Executive Officer, 
  Association of American Railroads..............................   158
 Pomeroy, Hon. Earl, a Representative in Congress from North 
  Dakota, accompanied by Jeannette Klier.........................   152
 Rodzwicz, Edward W., President, Teamsters Rail Conference.......   158
 Timmons, Richard F., President, American Short Line and Regional 
  Railroad Association...........................................   158
 Van Dyck, Sharon L., American Association for Justice...........   158
 Wytkind, Edward, President, Transportation Trades Department, 
  AFL-CIO........................................................   158

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Brown, Hon. Corrine, of Florida..................................   194
Costello, Hon. Jerry F., of Illinois.............................   199

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

 Hamberger, Edward R.............................................   200
 Rodzwicz, Edward W..............................................   233
 Timmons, Richard F..............................................   246
 Van Dyck, Sharon L..............................................   253
 Wytkind, Edward.................................................   258

                       SUBMISSIONS FOR THE RECORD

 Hamberger, Edward R., President and Chief Executive Officer, 
  Association of American Railroads:

  Response to a question from Rep. Brown.........................   221
  Response to a question from Rep. Napolitano....................   225
  Response to questions from Rep. Walz...........................   230
 Timmons, Richard F., President, American Short Line and Regional 
  Railroad Association, responses to questions from Rep. Brown...   249

                         ADDITION TO THE RECORD

Institute of Makers of Explosives, Cynthia Hilton, Executive Vice 
  President, letter, February 15, 2007...........................   266


           REAUTHORIZATION OF THE FEDERAL RAIL SAFETY PROGRAM

                              ----------                              


                       Tuesday, January 30, 2007,

        House of Representatives, Committee on 
            Transportation and Infrastructure, Subcommittee 
            on Railroads, Pipelines and Hazardous 
            Materials, Washington, D.C.
    The subcommittee met, pursuant to call, at 2:00 p.m., in 
Room 2167, Rayburn House Office Building, the Honorable Corrine 
Brown [Chairwoman of the subcommittee] presiding.
    Ms. Brown. Good afternoon. The Subcommittee on Railroads, 
Pipelines and Hazardous Materials will come to order. And thank 
you.
    [Applause.]
    Ms. Brown. Before I begin, I want to introduce my school 
board member from Orlando, Cat Gordon. Cat, would you just 
stand up? I know this is unusual.
    [Applause.]
    Ms. Brown. And I have school board members from 
Jacksonville, Florida. Would you all stand up?
    [Applause.]
    Ms. Brown. So at any rate, they're watching me.
    [Laughter.]
    Ms. Brown. The Subcommittee is meeting today to hear 
testimony on reauthorization of the Federal Rail Safety 
Program. Since this is our first meeting of the 110th Congress, 
I believe this is a good opportunity to outline the near-term 
agenda of the Subcommittee, and our efforts to address many of 
the transportation challenges facing this Country.
    First, let me say how pleased I am to serve as the 
Chairwoman of the Subcommittee on Railroads, Pipelines and 
Hazardous Materials. I have loved the railroads since I was a 
child watching the Silver Meter pass by my house every day. And 
I often tease members, pass through my house, we were just that 
close to it. I am also pleased to have the opportunity to work 
with my Republican colleague, Congressman Bill Shuster of 
Pennsylvania. And you can rest assured that the Transportation 
Committee is one committee in this House and this Subcommittee 
that will be run very bipartisan. We will work together for the 
good of the people of this Country. Thank you for being the 
Subcommittee Ranking Member.
    The Subcommittee will have an active agenda in the coming 
weeks and months, starting with the reauthorization of the Rail 
Safety program. I have scheduled these two days of hearings to 
give members adequate time to examine the state of rail safety 
in the U.S. Additionally, hearings are scheduled for February, 
including a February 13th hearing on fatigue in the rail 
industry. It is my hope that we can build upon the past 
bipartisan efforts of the Subcommittee and move a rail safety 
bill through the Committee to the floor of the House before the 
Memorial Day district period.
    Congress last passed legislation to reauthorize the Federal 
Railroad Administration in 1994. That reauthorization expired 
in 1998. Since that time, the railroad industry has changed 
dramatically. Economic growth and the increase in international 
trade have led to record traffic levels. At the same time, 
Amtrak and commuter railroads, which often operate on freight 
rail lines, are moving more passengers, which means that the 
system is a lot of pressure on our rail system. This has a 
significant impact on workers and public safety.
    According to the FRA, train accidents have increased by 33 
percent since 1994. Fatalities and injuries have also increased 
from 12 fatalities and 262 injuries in 1994 to 33 fatalities 
and 734 injuries in 2005. It hit an all time high at 1,884 in 
2002, due to a train accident in North Dakota. On the other 
hand, grade crossing accidents and relative fatalities and 
injuries have decreased.
    Of course, when looking at those numbers, we also have to 
consider the increase in train traffic from 650 million train 
miles in 1994 to 790 million train miles in 2005. So we have to 
look at accident rates. According to the FRA, the train 
accident rates have increased since 1994, while the grade 
crossing incident rates have decreased and leveled off since 
2002. Forty percent of all train accidents are the result of 
human factors. Thirty percent are the results of defective 
tracks.
    I am interested in hearing what the FRA is doing to reduce 
accidents and what Congress should do to improve the Federal 
Rail Safety program.
    Before I yield to Mr. Shuster for his statement, I want to 
mention that we have a few members returning to the 
Subcommittee, and a fair number of new members joining us this 
year. I am looking forward to getting to know each of my 
colleagues, learning about their needs and working together to 
address their many concerns.
    Mr. Shuster?
    Mr. Shuster. Thank you, Madam Chairwoman. First of all, I 
want to congratulate you on your chairmanship. It is going to 
be a pleasure working with you. You and I have worked in the 
past on the T&I Committee. I know you work hard at it, and I 
certainly am looking forward to working with you in a 
bipartisan way on the Subcommittee of Railroads, Hazardous 
Materials and Pipelines.
    My last Congress, I served on the Economic Development, 
Public Buildings and Emergency Management Subcommittee. I think 
Ms. Norton can attest to the fact that we worked very 
bipartisanly on that subcommittee and as I said, I look forward 
to continuing that work here. As you mentioned, this Committee 
and all the subcommittees have been able to do that over the 
history of this Committee.
    I would also like to welcome our new members that are new 
to the Committee. That's Mr. Gilchrest from Maryland, Mr. 
Johnson of Illinois, Mr. Gerlach from Pennsylvania, and Mr. 
Diaz-Balart from Florida, as well as all of our new Democratic 
members. I look forward to working with each and every one of 
them.
    Today's hearing is on the reauthorization of the Federal 
Rail Safety program. This subject is both timely and of great 
personal interest. Our Nation's economy depends on the 
efficient freight transportation system. This is especially 
true in my home State of Pennsylvania, where many industries 
rely on the freight rail industry. The safe movement of 
passengers is also a major concern. In Pennsylvania, the 
Keystone Corridor from Harrisburg to Philadelphia was recently 
upgraded to a high speed rail of 110 miles per hour, and we 
hopefully will see more of those types of projects in the near 
future. And so far today, it has been a great success with 
increased passengers riding that train.
    America already has one of the safest rail systems in the 
world, and according to the latest statistics, last year was 
one of the best on record. I think it is important that when we 
look at the raw numbers, we look at those rates. I think it is 
clearly, when you look at the rates, the increased traffic, 
increased freight, that this has been an extremely safe year. I 
don't know that the numbers for 2006 are out yet, but it 
appears it is going to be the same as 2050 or even better. We 
have to make sure that we keep it that way.
    I want to compliment the folks at the Federal Railroad 
Administration, the railroads, and in particular, the employees 
of the railroads. Because that is why we see these fantastic 
results, all of them working together to make sure that we have 
a safe rail system in this Country. We can't rest, we can't sit 
back on our laurels. We have to look forward to seeing and 
hearing how we can make our railroads even safer.
    I look forward to the testimony of our distinguished 
witnesses today. We all appreciate their expertise and their 
commitment to rail safety. Once again, congratulations, 
Chairwoman Brown. I am really looking forward to the coming 
weeks and months working with you.
    Ms. Brown. Thank you.
    Ms. Napolitano, from California.
    Ms. Napolitano. Thank you, Madam Chairwoman. I wanted to be 
one of the new old Subcommittee members, I have been wanting 
Transportation for many years. I thank you for the opportunity 
and look forward to working with you on all the issues.
    Madam Chairwoman, I ask to submit a statement of Mr. Steve 
Larson, the Executive Director of the California Public 
Utilities Commission, regarding the important role that States 
can play in protecting their citizens by ensuring safe rail 
operations.
    Ms. Brown. Without objection, so ordered.
    Ms. Napolitano. Thank you, Madam Chairwoman.
    My district is home to the Alameda Corridor East rail 
lines. Union Pacific and Burlington Northern both have great 
traffic that brings 40 to 50 percent of the Nation's goods 
through my whole district. There is over 35 miles, just in one 
area alone. They of course distribute $314 billion in annual 
trade through those rail lines and impact 1.9 million residents 
in 30 cities. The fact that the last couple of years I have had 
five derailments, three within my area and two just outside my 
area, indicates to me that there were some issues, and I was 
very heavily involved with the railroad in making sure that 
does not happen again. Thank God, we have been accident free 
for a year and a half.
    The fact that we feel that FRA must implement stricter rail 
safety regulations by forcing more frequent track inspections 
and better maintenance, and utilizing new technology to inspect 
areas of track that are currently inaccessible. Also including 
the research and development to ensure that the joint bars are 
something that are taken care of, which is a great issue in my 
area. We can go to the moon, but we have not been able to find 
a way to inspect the joint bars.
    Increase the staffing and reduction in fatigue in hours of 
service. Conversations not only with the rail folks and some of 
the other labor groups indicate that there are loopholes. And 
we need to ensure the safety not only of our employees on the 
railroad, but also the people that drive through, if you will, 
where there are trains. We need to ensure slower and quieter 
traffic through urban areas. I have nothing but urban. We need 
to impose tighter standards for transporting hazardous 
materials to prevent unnecessary deaths. And we also must 
assist communities in being able to work out how do we improve 
grade crossing safety, if we are not going to do grade 
separations.
    And then of course, we want to ensure that States must be 
given power to assist in railroad safety. Many States offer 
additional inspectors and accident prevention training. Why are 
we not utilizing that to a greater degree?
    We look forward to having FRA work with States to improve 
safety on behalf of all of our communities. And of course, 
grade separations, ensuring that rail crossings, which are the 
leading cause of traffic delays and accidents, are operated, 
built to improve the ability for the cities to continue their 
business. There are 54 grade crossings along the Alameda 
Corridor East, in my area alone, 54. The Alameda Corridor East 
Construction Authority has 10, 8 working, 2 completed, 10 
unfunded to do and the other 34 are nil. That means my 
transportation emergency vehicles are going to be at a 
standstill, because there is no way around it. And we need to 
ensure that while we are serving the rest of the Country, that 
my district is not impacted unnecessarily.
    We support whatever the Subcommittee chair is proposing, 
and look forward to working on this issue with all of us, both 
sides of the fence. Thank you, Madam Chair.
    Ms. Brown. Thank you, and thank you for joining the 
Committee.
    I want to welcome Mr. Mica, the ranking Republican Member 
of the full Committee. I recognize him for any remarks he may 
care to make.
    Mr. Mica. Thank you so much, Ms. Brown, and congratulations 
on assuming the Chair of this very important Subcommittee of 
the Transportation and Infrastructure Committee. Ms. Brown and 
I were elected together some 14 years ago. We share a very 
common geographic area and a lot of people with the same 
concerns and needs. They all are very proud of you now in 
assuming this important responsibility.
    I am also pleased to have named Mr. Shuster, the ranking 
Republican member. I am very proud of him. He has chaired one 
of our other subcommittees. I will not be here to see it, but I 
know his picture will be up, actually we could take his dad's 
down some day and put his up there. Don't tell him I said that.
    He won't until he reads the will.
    [Laughter.]
    Mr. Mica. But we know he will do a good job, and working 
together we can get a lot done.
    And also just a moment for the good of the order, I want to 
thank members on both sides of the aisle who are here, I see 
Mr. DeFazio over there, in learning that we are going to fully 
fund our TEA-LU obligations for highway. I thank everyone. 
Seventy-three members, the largest committee in Congress, 
signed a letter jointly, Republicans and Democrats. I learned 
that that has been announced. We need to keep it in there, 
though, as it goes over to see our friends on the other side of 
the aisle.
    But I do thank everyone for their cooperative effort and 
success so far.
    Again, I want to address just for a minute the subject of 
today's hearing. This of course is the reauthorization of our 
Federal Rail Safety program. The Railroad Subcommittee 
conducted several safety oversight hearings during the past two 
Congresses. And each here, and we found that our Rail Safety 
program has made some significant progress. I think that the 
Chairwoman has shown some of the progress we have made.
    Now, there is always room for improvement. And as we move 
forward in reauthorization, I would like to set out a couple of 
principles that I think we should follow. First, as the famous 
President said, Ronald Reagan, if it ain't broke, don't fix it. 
We have to make certain that our current program, we build on 
its successes in safety and that we improve on that, our safety 
record over the coming years. If we propose to try, and I am 
not disposed to not trying something new, let's make certain it 
is going to work and be effective.
    Any new program must be based on the latest science. The 
Federal Railroad Administration has done a great deal of safety 
research over the past few years, particularly on the important 
question of worker fatigue. This research could serve as the 
basis for replacement of our antiquated hours of service law, 
which dates back, believe it or not, to 1907, 100 years old.
    My second principle for rail safety reauthorization is the 
avoidance of unnecessary bureaucratic regulations, i.e., red 
tape. The Government is great at making people file more and 
more paperwork. But paperwork does not always enhance safety. 
What we truly need is a program to fund advanced safety 
technologies, such as the T18 track inspection car, developed 
by the FRA. We should also be encouraging the installation of 
state of the art positive train separation controls, which can 
eliminate the cause of a lot of our problems, human-caused 
collisions.
    In closing, I would like to note that one of the worst-run 
railroads, couldn't do this, couldn't get through a Rail 
Subcommittee hearing without saying something about Amtrak, one 
of the worst-run railroads in the Country is our own Amtrak. 
During our Committee oversight process in the last few years, 
we have found numerous safety, mismanagement and maintenance 
problems in Amtrak's mechanical department and some of their 
other operations. Some of these issues have been addressed, but 
Amtrak, again, our Government-run passenger service, long 
distance service and high speed service, needs to do much more.
    I should note that my staff and I have spoken in the past 
to President Alexander Kummant and have been assured that 
Amtrak will address pending safety concerns, like even getting 
brakes that fit Acela. I call on the Federal Railroad 
Administration to take a closer look at Amtrak's safety record 
to ensure that it has taken every possible corrective action. 
That is important, because it is not just freight, it is people 
that we move on Amtrak.
    So with those comments, thank you for hearing me out, and 
congratulations again.
    Ms. Brown. Thank you, Mr. Mica, Ranking Member of the full 
Committee. I am looking forward, as always to working with you. 
And I want to be clear, Mr. Shuster, that you tell your daddy 
that I didn't recommend taking his picture down. I want to be 
clear on that.
    [Laughter.]
    Ms. Brown. I want to yield now to Mr. DeFazio from Oregon.
    Mr. DeFazio. Thank you, Madam Chair. Congratulations upon 
assuming the Chair and I have no opening remarks. I am looking 
forward to hearing from the witnesses. Thank you.
    Ms. Brown. We have sufficient time to put any other remarks 
into the record.
    I would like to, it is my pleasure to welcome Congressman 
Gonzalez to the hearing this afternoon. The Congressman has 
spoken with me about a number of fatality accidents that 
occurred in his district, and I thought it would be helpful for 
him to share his concerns with the rest of the Subcommittee as 
we begin. So welcome.

       TESTIMONY OF THE HONORABLE CHARLIE A. GONZALEZ, A 
       REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

    Mr. Gonzalez. Thank you very much, Madam Chairwoman Brown, 
and congratulations to you, and of course, to Ranking Member 
Shuster and members of the Committee, thank you for the 
opportunity of appearing before you.
    I have been in communication with members of this Committee 
for the past few years regarding situations in my district, 
which is half of San Antonio and the surrounding areas, of 
course. What would be my interest in rail safety? May 2004, a 
derailment near Brackenridge High School, 5,600 gallons of 
diesel fuel are spilled near the San Antonio River. Thank God, 
four tank cars carrying propane do not rupture.
    June 2004, Macdona, Texas, which is the southwest side of 
San Antonio. A 40-car derailment, toxic chlorine gas tank 
ruptures. The conductor and two residents die. Fifty people are 
hospitalized.
    September 2004, derailment near Brackenridge High School 
again. Luckily, no spills.
    November 2004, train collides into the Crystal Storage 
Company building. An accountant sitting at his desk is crushed 
to death.
    February 2005, in San Marcos, Texas, 40 miles north of my 
district, a seven-car derailment. Tank cars carrying hazardous 
materials requiring the evacuation of 200 residents. Again, we 
are lucky that no cars ruptured.
    October 2006, in the heart of my district, down the street 
from where I live. Two homes, after a 17-car derailment, two 
homes are struck and one actually has to be demolished because 
it wasn't up to code after that.
    What have I learned from those particular experiences? I 
believe that railroad companies pretty well police themselves. 
There is a lack of oversight by the Federal Railroad 
Administration and that the Federal Railroad Administration is 
not aggressive, it is not proactive and many times not engaged, 
which results in railroad companies not compelled to adopt 
policies or invest in technologies to improve rail safety.
    I also recognize the FRA has new personnel. It is under a 
different watch and I will defer to that. I am talking about 
some previous experiences with different personnel at the FRA.
    What were some of the problems or issues that were easily 
identified? FRA is ill-equipped to investigate accidents. The 
NTSB cannot take up the slack, and that was in conversations 
with the NTSB. They did not say that in so many words. But if 
you look at the number of personnel that they have to assist in 
the investigations of rail accidents, it is an easy conclusion 
to arrive at.
    Employee fatigue. Current regulations fail to address 
unwise or abusive practices. I think the Ranking Member has 
already made reference to that. It is, I guess, 
incomprehensible that we have not done anything earlier on 
this.
    A lack of utilization of positive train controls which 
override human error, which if in fact, a large percentage of 
the accidents are due to human error, fatigue and so on, then 
why aren't we making that investment in that type of technology 
that will override that type of error?
    Proper car placement, tank cars being placed away from 
other cars that could result in puncturing the tank cars. And 
of course, the placement of cars based on weight and so on.
    Improved standardized derailment statistics. Definitions, 
reporting periods and so on. And easier access to that 
information by the general public. What am I referring to? I 
think you all are more knowledgeable about this than I am. But 
I was looking at statistics. And they said 2005, there were 
only 33 fatalities at all of these accidents throughout the 
United States. And that was incredible to me. I didn't 
understand why the number could be so low, when I had heard 
that the fatalities numbered more in the 700 range.
    That conductor that died in San Antonio, the two residents 
that died as a result of chlorine poisoning, the accountant 
that was crushed to death by that train, are not part of the 33 
fatality statistic. And you say, how is that possible? Because 
the only ones that are counted, they have to be on the train as 
a passenger or as an employee and you have to die as a result 
of the accident itself. Now, if you are in a car, you are not 
one of those fatalities. If you are the resident inhaling the 
toxic fumes and you die, you are not counted. If you are the 
conductor or the engineer that jumps off the train after the 
accident and still dies in the gaseous cloud, you're not 
counted as a fatality.
    Now, I know that we will have those statistics somewhere 
else. But let's try to have some reason in arriving at what 
would be reasonable, comprehensive statistics and reporting. 
Improved safety and security of remote control operated trains 
continues to be a concern. I recognize that some of these 
issues have been addressed of late, but have gone too long 
ignored. This would be my only caution as we proceed, and I 
commend you that you are taking the interest early.
    FRA recommendations to railroad companies do not equate to 
actual regulations. Two, you may hear that last year, the 
Nation's rail system was on pace to set an annual safety 
record. All I say to that is, as compared to what? We cannot 
have the attitude that it could be worse, because that is what 
I always encounter. Well, it was bad, but it is not as bad as 
it used to be, or it could be worse. I know that the public 
demands more, and I am hoping that this Congress will provide 
more.
    Again, thank you very much, and I will remain here if you 
have any questions.
    Ms. Brown. Thank you, Mr. Gonzalez. I guess I just have 
one.
    As the Subcommittee plans for reauthorization of the 
Federal Rail Safety program, what areas are in need of revision 
or reform, if there were just one or two things that you think 
need to happen?
    Mr. Gonzalez. There has to be a priority list, and I 
understand that, Madam Chair. But I always, in thinking through 
where is that information, it is so easily accessible, because 
all the investigations have been made and all the 
recommendations have been made. NTSB, just the safety 
recommendations that arose out of the accident in Macdona where 
we lost three individuals, address the issue of crew fatigue, 
including hours of service and scheduling issues that take into 
account crew limbo time, disrupted processes and 
unpredictability of the work schedules.
    Adopt positive train control systems, which we have touched 
on. Examine the impact resistance of steels used in pressure 
tank cars built before 1989 that are still in service. Develop 
tank car specific fracture strength standards, taking into 
account that these rail lines are not going to be relocated in 
all probability, and they still will be going through highly 
populated areas. The other is implement measures that would 
minimize forces should an accident occur, such as positioning 
the tank cars away from other cars that could actually cause a 
puncture, which are covered. And of course, providing escape 
breathing apparatus for personnel.
    I would also be looking at how the FRA is going to deal 
with what I refer to as the disciplinary action, or the 
corrective action, as opposed to the way that they have done it 
in the past, where they reach these agreements, but nothing 
ever really occurs. I do not think they are really followed, I 
do not think they are scrutinized, and I do not think that 
anything happens for failure to comply.
    So it is just a smorgasbord out there that this Committee 
needs to establish the priorities.
    Ms. Brown. Thank you.
    Mr. Shuster, do you have any questions?
    Mr. Shuster. No, ma'am, no questions. Thank you.
    Mr. Gonzalez. Thank you.
    Ms. Brown. Ms. Napolitano?
    Ms. Brown. Congressman, on the derailings in your district, 
were there any specific concerns with the life of the rail, or 
any of the performance of the joint bars, besides the fatigue?
    Mr. Gonzalez. My understanding is that there was some 
allegation about the condition of the tracks, but I do not 
think that was found to be a valid concern. There were some 
considerations regarding the signals and such. That 
investigation of the Macdona incident is quite interesting, 
that is the findings of the National Transportation Safety 
Board.
    But no, I do not believe, and we have individuals from the 
Board here that could elaborate on that. I don't believe the 
condition of the tracks or the equipment that was used was at 
fault.
    Ms. Napolitano. Thank you, Madam Chair.
    Ms. Brown. Thank you very much, Mr. Gonzalez, for coming.
    Mr. Gonzalez. My pleasure. Thank you.
    Ms. Brown. Would our second panel please come forward?
    We are pleased to have a distinguished panel of witnesses 
this afternoon. Before I introduce them, I will ask unanimous 
consent to allow 30 days for all members to revise and extend 
their remarks and to permit the submission of additional 
statements and materials by members and witnesses.
    Without objection, so ordered.
    I would like to welcome the Honorable Joseph Boardman, who 
is the Administrator of the Federal Railroad Administration. 
Welcome.
    We will have the Honorable Robert Sumwalt, who is Vice 
Chairman of the National Transportation Safety Board. He is 
accompanied by Bob Chipkevich, who is the Director of the 
Office of Railroad, Pipelines and Hazardous Materials 
Investigations at the NTSB.
    And we have the Honorable Calvin Scovel, who is the 
Inspector General of the U.S. Department of Transportation.
    Finally, we have Ms. Katherine Siggerud, who is the 
Director of Physical Infrastructure Issues for the U.S. 
Government Accountability Office.
    Let me remind the witnesses to limit their oral statements 
to five minutes. Your entire statement will appear in the 
record. We will also allow the entire panel to testify before 
questioning.
    Administrator, you may begin.

 TESTIMONY OF THE HONORABLE JOSEPH H. BOARDMAN, ADMINISTRATOR, 
   FEDERAL RAILROAD ADMINISTRATION; THE HONORABLE ROBERT L. 
  SUMWALT, III, VICE CHAIRMAN, NATIONAL TRANSPORTATION SAFETY 
   BOARD, ACCOMPANIED BY BOB CHIPKEVICH, DIRECTOR, OFFICE OF 
  RAILROAD, PIPELINES AND HAZARDOUS MATERIALS INVESTIGATIONS, 
 NATIONAL TRANSPORTATION SAFETY BOARD; THE HONORABLE CALVIN L. 
      SCOVEL, III, INSPECTOR GENERAL, U.S. DEPARTMENT OF 
   TRANSPORTATION; KATHERINE SIGGERUD, DIRECTOR OF PHYSICAL 
  INFRASTRUCTURE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Boardman. Madam Chairwoman, I also congratulate you. 
Being here the last year, and I think the most often witness, I 
know you were sitting on the other side, and congratulations. 
Thank you for having me here today.
    Ranking Member Shuster, I also appreciate being here with 
you today and all the members.
    And the full Committee Chair, Mr. Oberstar, thank you for 
being here.
    In your opening remarks, Madam Chairwoman, you talked about 
the fact that the reauthorization bill expired in 1998. We are 
allowed, as FRA, because of the Appropriations Act that we deal 
with each year, to have the legislative and legal authority to 
operate the safety program for the United States. DOT submitted 
proposals in 1998 and 1999 and 2002 and in 2003 for a 
reauthorization of the bill, but none of those were accepted or 
adopted. No action occurred in the 108th or 109th Congress, 
except for S. 1402. The FRA has a proposal in clearance now, 
and we look forward to working with the Committee on the bill 
in the future.
    The leadership of this Department and this Agency has 
changed. The most recent change in leadership in the Department 
is a new Secretary, Mary Peters. Her interest and support in 
rail safety generally, and rail safety specifically, are very 
strong and I appreciate being here for her. The FRA is to rail, 
quite frankly, because of the railroad model, what the FHWA and 
what the FMCSA and the NHTSA operations combined are to 
roadways. In addition, private railroads handle their own 
tasks, tasks that in the highway model are done by the State 
DOTs for the highways, and by the FAA for aviation. Railroading 
is much older than that.
    In many of the safety areas themselves, tank cars as an 
example, the railroad industry has an important safety 
delegation that they've been handling for 40 years or more 
before the DOT had actually been in existence. And yet the most 
important part of what I want to talk about today are the FRA 
and its people. The people that do a job with excellence, with 
integrity, with teamwork and with partnerships, whether it's 
with a State or the industry or among themselves and among 
these agencies.
    We are staffed at approximately 800, with 500 of them in 
the field, an inspection staff of approximately 400 in 8 
regions who are experts in track, signal and train control, 
motive power and equipment, operating practices, and hazardous 
materials. We have 18 full-time grade crossing specialists and 
supervisory and support staff.
    It is a small agency, but it demonstrates an ability to 
deliver, I think, big results. Especially with our State 
partners, there are another 160 inspectors out in the field as 
well.
    The FRA works every day to reduce both the frequency and 
severity of railroad accidents. And real progress, I can tell 
you, is being made in implementing our National Rail Safety 
Action Plan and our Grade Crossing Action Plan. Passenger 
safety rulemaking and other key initiatives are also making 
railroads safer today.
    In the National Rail Safety Action Plan, the strategy was 
to target the most frequent, high-risk causes, focus oversight 
and inspection better, and accelerate research to reduce risk. 
Our initiatives encompassed, and I will talk a little bit about 
that in my answers, I think, to reduce human factor accidents, 
improve track safety, improve hazmat safety and preparedness, 
better focus our inspections and improve highway rail grade 
crossing safety.
    I appreciate the opportunity to speak today and I will 
answer your questions as you choose.
    Mr. Sumwalt. Good afternoon, Chairwoman Brown, Ranking 
Member Shuster and members of the Subcommittee. I am Robert 
Sumwalt, I am the Vice Chairman of the National Transportation 
Safety Board. With me today is Mr. Bob Chipkevich, Director of 
the NTSB's Office of Railroad, Pipeline and Hazardous Materials 
Investigations. Thank you and your staff for focusing on the 
important issue of safety of our Nation's railways.
    Let me begin by saying that railroad fatigue is an 
important issue at the Safety Board. Fatigue has been on our 
most wanted list since 1990, and as you know, fatigue is 
widespread in every mode of transportation, especially rail 
crashes. The Safety Board most recently addressed this issue in 
the collision of two freight trains at Macdona, Texas in 2004 
where three people died from chlorine gas inhalation. The 
Safety Board determined that train crew fatigue was the 
probable cause of the accident. Contributing to their fatigue 
was the train crew members' failure to obtain sufficient rest 
prior to reporting for duty because of their ineffective use of 
off-duty time and train crew member scheduling practices that 
inverted the crew member rest periods. The unpredictability of 
train crew member work schedules may have encouraged them to 
delay obtaining rest.
    The Safety Board also found that the minimum rest periods 
prescribed by Federal regulations do not take into account 
either the rotating work schedules or the accumulated hours 
spent working and in limbo time. As a result of this 
investigation, the Safety Board recommended that the FRA 
require railroads to use scientifically based principles when 
assigning work schedules to train crew members.
    The Board also recommended that the FRA establish 
requirements that limit train crew member limbo time. The FRA 
responded that it lacked the statutory authority to adopt the 
requirements contemplated by either of these recommendations.
    I would like to now briefly discuss transporting hazardous 
materials by rail. Following catastrophic railroad accidents in 
the 1970s, safety mandates, such as shelf couplers, head 
shields and thermal protections have improved the performance 
of tank cars during derailments. However, despite these 
improvements, recent accidents such as those in Macdona, Minot, 
North Dakota and Graniteville, South Carolina, have all raised 
new concerns about the safety of transporting hazardous 
materials in tank cars.
    The Minot accident resulted in the catastrophic failure of 
five tank cars. The nearly instantaneous release of almost 
150,000 gallons of anhydrous ammonia created a toxic plume that 
affected nearly 12,000. The low fracture toughness of the steel 
used for the tank shell cars that catastrophically ruptured 
contributed to their complete fracture and separation. The 
Board issued four safety recommendations to FRA to improve tank 
car performance.
    In 2005, a train in Graniteville, South Carolina 
encountered an improperly aligned switch, resulting in a head-
on collision with a parked train. A tank car filled with 
chlorine was punctured and a vapor cloud filled the area. Nine 
people died as a result of chlorine gas inhalation and 
approximately 5,400 residents were evacuated for days. The 
Board found that the steel in the tank shell of the punctured 
chlorine car in Graniteville had a fracture toughness that was 
significantly greater than the toughness of the ruptured cars 
in Minot. These improved steel qualities in the Graniteville 
accident did limit the size of the tank rupture, but it also 
demonstrated that even the strongest tank cars in service today 
can be punctured in accidents involving moderate train speeds.
    Therefore, we recommended that the FRA require operating 
measures, operating measures such as positioning tank cars 
toward the rear of trains and reducing speeds through populated 
areas to minimize impact forces from accidents, and to reduce 
the vulnerability of tank cars that are carrying gases that are 
poisonous by inhalation. However, we are disappointed in the 
FRA's lack of enthusiasm to closely examine how operational 
measures can be used to reduce these risks.
    Finally, the need for positive train control systems has 
been on our most wanted list for 17 years. Our accident 
investigations have long identified human performance failures, 
and PTC provides needed safety redundancy to compensate for 
human error. Last year, several railroads announced that it is 
time for the industry to move forward on PTC. And on January 
8th, the FRA announced its approval of a positive train control 
system for a major railroad, over 35 specific lines in 17 
States.
    The Board is encouraged by these recent developments and we 
urge the industry to move aggressively to install these 
systems.
    Madam Chairman, this completes my statement and I look 
forward to your questions at the appropriate time. Thank you.
    Ms. Brown. Thank you. Mr. Scovel?
    Mr. Scovel. Chairwoman Brown, Chairman Oberstar, Ranking 
Member Shuster and members of the Subcommittee, we appreciate 
the opportunity to testify today on the reauthorization of the 
Federal Railroad Safety Program.
    I wish to note that I am new to the position of Inspector 
General in the Department of Transportation. I have identified 
surface safety as a key area where the Office of Inspector 
General can make a significant contribution to the work of the 
Department and to the Congress' oversight responsibilities. I 
am pleased that my first opportunity to testify before Congress 
may assist this Subcommittee in its important work in improving 
rail safety.
    As the FRA Administrator noted today, the rail industry's 
safety record has improved, but significant train accidents 
continue to occur and the train accident rate has not shown 
sustained improvement in recent years. Although 2005 saw a 
downtick, the overall data for 1995 through 2005 show that 
train accidents increased by 31 percent and the rate of train 
accidents per million train miles traveled grew by 11 percent.
    Today, I will focus on two issues that we see as key for 
reauthorization--(1) improving grade crossing safety and (2) 
better targeting of FRA's oversight by identifying patterns of 
safety problems through data analysis.
    On average, one person dies and three people are injured in 
the United States every day in grade crossing collisions. This 
category ranks second highest on the list of causes of train 
accident fatalities, exceeded only by trespassers. Grade 
crossing collisions resulted in 42 percent of all train 
accident fatalities from 1995 through 2005.
    The railroads and FRA, and in some cases states can do five 
things to further reduce collisions and fatalities. First, 
ensure compliance with reporting requirements. Our ongoing work 
continues to identify significant problems with the 
completeness of reporting by the railroads to both the National 
Response Center and FRA's accident reporting system. For 
serious collisions, immediate notification to the National 
Response Center is required.
    We found, however, that between May 2003 and December 2004, 
21 percent of serious collisions were not reported. Further, 
timely and accurate reporting to FRA's accident reporting 
system, where all grade crossing accidents are required to be 
reported, ensures that FRA and the states have information on 
which to identify dangerous crossings and emerging accident 
trends. Yet, we identified 12 railroads between 1999 and 2004 
that did not report 139 grade crossing collisions to FRA on 
time. Some were reported nearly 3 years late. This is clearly 
an area where additional enforcement and civil penalties should 
be considered.
    Second, develop strategies to increase FRA's involvement in 
grade crossing collision investigations. FRA does not have the 
resources to deploy inspectors to the site of every grade 
crossing collision. As a result, FRA relies heavily on reports 
submitted by the railroads themselves. We have recommended that 
FRA take additional steps to broaden its review of those 
reports, for example, by verifying information supplied by the 
railroads using information obtained from independent sources 
such as police reports. Although FRA has stepped up its efforts 
in the last 2 years, it investigated less than 1 percent of 
collisions which highlights the need for verification of 
railroad-supplied information.
    Third, work with states to establish laws to address sight 
obstructions. Our work identified 27 states that currently lack 
state-level laws addressing sight distances at grade crossings 
where no active warning devices are present. FRA data show that 
sight obstructions, such as vegetation growth, may have 
contributed to 688 collisions from 2001 to 2005. FRA should 
establish national standards in this area and promote state 
laws adopting them.
    Fourth, establish mandatory reporting requirements for 
FRA's national grade crossing inventory system. In June 2004, 
we recommended that the Department improve the accuracy and 
completeness of FRA's national grade crossing inventory, 
particularly the identification of all public grade crossings 
and the type of warning devices in place, in order to better 
monitor high-risk crossings and make improvements. An accurate 
inventory is also important because SAFETEA-LU funding is tied 
to the number of crossings. This will require joint action by 
the Federal Highway Administration and FRA.
    Fifth, require states with the most dangerous grade 
crossings to develop and an action plan. This past year, FRA 
worked with Louisiana on what appears to us to be a successful 
pilot project on a grade crossing safety action plan. FRA 
should aggressively expand this effort to other states.
    Now, let me turn to the second issue we see as key for 
reauthorization. FRA must aggressively implement its data-
driven approach and trend identification. By using trend 
analysis to track predictive indicators and problem areas, FRA 
could identify potential safety "hot spots."
    Chairwoman Brown, I see that I am almost out of time. If I 
may ask for another minute, I think perhaps I can wrap up.
    Ms. Brown. Without objection.
    Mr. Scovel. Thank you.
    For example, circumstances related to the January 2005 
Norfolk Southern hazmat accident in Graniteville, South 
Carolina, both illustrate and underscore the value of trend 
analysis. Even though FRA began issuing safety advisories 5 
days after this accident, this was a reactive measure. Had FRA 
used the data it already had--that switch problems started 
trending up in 1997 and took a large jump in 2003--it could 
have addressed these problems at least 2 years before the 
accident occurred.
    FRA has taken action on the recommendations contained in 
our previous reports. As the Administrator stated in his 
testimony, FRA recently launched its National Inspection Plan. 
This is a step in the right direction. It is too soon, however, 
to tell exactly how effective these measures will be in the 
long term. We plan to audit FRA's progress as it continues to 
implement its National Inspection Plan.
    Chairwoman Brown, that concludes my statement. I would be 
pleased to answer any questions.
    Ms. Brown. Thank you.
    Ms. Siggerud?
    Ms. Siggerud. Madam Chairwoman, Chairman Oberstar and 
Ranking Member Shuster and members of the Subcommittee, thank 
you for inviting me to participate in this hearing today to 
discuss FRA's rail safety oversight activities.
    In recent years, a number of serious accidents raised 
concern about the level of safety in the railroad industry. In 
contrast to previous decades, during the past 10 years, we have 
not seen much progress on reducing the rate of train accidents. 
While we saw that FRA has recently undertaken or planned 
several actions that look promising, I would emphasize that it 
is important to make progress and soon on rail safety.
    My statement today is based on a report we issued last 
Friday that provides an overview of FRA's safety program. Our 
report covered three topics. First, how FRA focuses its efforts 
on the highest priority risks and planning of safety oversight; 
second, how FRA identifies safety problems on railroad systems; 
and third, how FRA assesses the impact of its oversight 
efforts. With regard to focusing on the highest priority risks, 
FRA has undertaken or planned initiatives that are aimed at 
addressing the main causes of accidents. The agency's overall 
strategy for targeting its oversight is the National Rail 
Safety Action Plan, issued in 2005. In our view, this plan 
includes elements of a reasonable framework for guiding the 
agency's efforts.
    In 2005, 72 percent of our train accidents were 
attributable either to human factors or track defects. FRA has 
initiatives to address both these causes. These include new 
regulations on employee errors, such as improperly positioned 
switches and the new fatigue model that can be used by 
railroads to improve train crew scheduling practices. For 
track, FRA is acquiring two additional track inspection 
vehicles that can precisely track and also has developed new 
regulations on inspecting continuous welded rail track.
    However, most of these initiatives have not yet been fully 
implemented and their impact on safety will probably not be 
apparent for a number of years. Furthermore, several of these 
key efforts depend on voluntary action by railroads.
    In addition, FRA has already initiated a new approach for 
planning inspections that uses trend analyses of accident 
inspection and other data in order to focus inspectors' efforts 
on locations that are likely to have safety problems. This 
approach allows FRA to better target the greatest safety risks 
and to make more effective use of its inspectors. However, it 
is not clear yet whether the new approach will lead to 
prioritization of inspections across the Nation or yet to 
improve safety.
    Turning now to how FRA carries out its safety oversight, 
the agency identifies safety problems mainly through routine 
inspections that determine whether operating practices, track 
and equipment meet minimum safety standards. Because FRA is a 
small agency in relation to the railroad industry, FRA's 
inspections can cover only about 0.2 percent of railroads 
operations each year. These inspections do identify violations 
and result in railroads paying fines and taking corrective 
actions.
    However, the inspections are not designed to determine how 
well railroads are managing the types of safety risks 
throughout their systems that can lead to accidents. Other 
organizations, such as the American Public Transportation 
Association, ##@@## and DOT and Transport Canada have 
implemented approaches to oversee the management of safety 
risks by U.S. commuter railroads, pipelines and Canadian 
railroads, respectively. Such risk management programs require 
the industry to improve system-wide safety by identifying and 
assessing safety risks and prioritizing them, so that their 
resources may be allocated to address the highest risks first. 
These oversight approaches complement, rather than replace, 
traditional compliance inspections, and therefore provide 
additional assurance of safety.
    With regard to how FRA assesses the impacts of its 
oversight efforts on safety, the agency uses a broad range of 
goals and measures. For example, it has recently developed new 
goals that target its inspections and enforcement efforts at 
reducing various types of accidents, and measures to track its 
progress. However, FRA lacks measures in the direct result of 
its inspection and enforcement program, such as to the extent 
to which they have resulted in correction of safety problems.
    Under FRA's current focus enforcement policy developed in 
the mid-1990s, inspectors cite a small percentage of their 
identified defects, about 3 percent in 2005, as violations that 
they recommend for enforcement action, generally through civil 
penalties. This policy relies on cooperation with the railroads 
to achieve compliance and it is intended to focus FRA's 
enforcement efforts on those instances of non-compliance that 
pose the greatest hazard. However, it is not clear whether the 
number of civil penalties issued or their amounts are having 
the desired effect on improving compliance. Because it has not 
evaluated its enforcement program, FRA is missing an important 
opportunity to obtain valuable information about its 
performance and any need for adjustment of the programs.
    In the report we issued last week, we recommended that FRA 
first develop and implement measures as a direct result of its 
inspection and enforcement programs and second, evaluate these 
programs. As part of our recommendation follow-up activity, we 
will work toward FRA's adoption of these recommendations.
    Madam Chairwoman, that completes my statement. I am happy 
to answer any questions you may have.
    Ms. Brown. Thank you.
    Now, it is my pleasure to introduce our distinguished full 
Chair, Mr. Oberstar. Let me just note that Mr. Oberstar started 
in this Committee, as a staffer, 44 years ago, and now he is 
going to have his picture up on the wall.
    [Laughter.]
    Ms. Brown. Mr. Oberstar. And in your remarks, will you give 
us an update on the funding of TEA-LU?
    Mr. Oberstar. Thank you, Madam Chair. Congratulations on 
your first hearing. You have demonstrated your commitment to 
the rail issue over the several years that you have served on 
the Committee on Transportation and Infrastructure, and you 
served as the Ranking Member in the last two Congresses. I am 
very impressed with your work and commitment to the issues of 
rail and rail safety. I congratulate you on assuming the 
chairmanship. You have your work cut out for you, it is going 
to be a very busy session.
    And I want to welcome Ranking Member Shuster in this new 
capacity. He was chair of the Economic Development and Public 
Buildings Subcommittee in the past Congresses. I know that big 
rail yard in his district where we had a hearing early on in 
his service in Congress, he has a very deep personal and 
professional district interest in rail and rail management and 
rail safety issues.
    We are going to have a very busy session of Congress on 
rail issues and spend a good deal of time on the wide range of 
matters, including Amtrak, which will be a subject of this 
Committee's affections in the coming session.
    I should also express my appreciation to Mr. LaTourette for 
his chairmanship. I did that this morning at the Coast Guard 
hearing, but thank you again for your leadership over the past 
several years on the Rail Subcommittee issues.
    I was very interested, I read through at length, Mr. 
Boardman, your list of initiatives that FRA has undertaken. I 
want to compliment you on the action taken. I must say that 
many of these have been a long time coming. Some were in the 
works, other initiatives have been on the shelf for quite some 
time. But you are certainly moving in the right direction. I 
want to, as I have done previously, emphasize the human factors 
in rail safety. Not just in rail safety, but in trucking, in 
aviation, in maritime, in inland waterway navigation systems, 
in everything in transportation. Airline pilots, flight 
attendants, air traffic controllers all are subject to the 
limitations of the human body, which has not evolved enormously 
over the last 50,000 years. We are still subject to the 
circadian rhythms to which our bodies respond. You cannot push 
the human body much beyond those limits for a very long period 
of time, or something fails.
    I remember myself as a college student working in the iron 
ore mines in Minnesota, in the midnight shift, the graveyard 
shift, we called it. I was stationed on what we called the rock 
dumps, where the trains were bringing gondolas of waste rock 
from the mines. I was at a switch where we had to direct the 
trains into one of three dumps. And at 2:00 or 3:00 in the 
morning, even as a 20 year old with a lot of energy, a lot of 
vigor, I finally resorted to marking down on sheets which dump 
I had which train on.
    And then I wasn't sure. It just scared the liver out of me 
that I might send a train up and rear-end somebody and kill a 
person. I never did. Those periods, however, of switching 
trains were interrupted by the responsibility then to, in a 
rain storm, take a 90 pound jack on your shoulder and go up to 
the end of the track and jack up a track that had slipped away 
and put rock under it to support it. That kept you awake for 
the next few hours.
    But what we have seen in failure after failure is, in all 
the modes of transportation, is the fatigue. Vince Lombardi 
said it very well: fatigue makes cowards of us all. He didn't 
mean the cowards in failure to, the courage to stand up, makes 
us less able to assess, confront, anticipate, respond to, be 
nimble, be effective in that moment of crisis when it's needed. 
That is a major responsibility of FRA, and of the NTSB.
    Mr. Sumwalt, in your testimony, which was well done and 
highlighted with very keen specifics, addressed that issue. And 
Mr. Chipkevich, over the years, you have been a great asset to 
this Committee in your work at the NTSB and we are grateful for 
your service, your professionalism. Mr. Scovel, I appreciated 
the opportunity to visit with you shortly after you assumed the 
position as IG. As a former Marine, you understand fatigue. You 
drove people to the point of breaking.
    [Laughter.]
    Mr. Scovel. I will claim the fifth on that one, sir. I am 
glad my former subordinates are not here today.
    Mr. Oberstar. But you also understand that the FRA has to 
take action on these initiatives that it has set forth and to 
conduct vigorously its responsibility of oversight of the 
industry.
    Mr. Scovel. Indeed it should, sir. We have identified a 
couple of areas in our testimony where we believe the Federal 
Railroad Administration can target its oversight better and 
increase its enforcement efforts.
    Mr. Oberstar. Ms. Siggerud, GAO has once again provided a 
great service to transportation in this excellent report on 
rail safety, much of which I have read. I still have about half 
of it to go through. But it is an excellent blueprint for 
action as we move forward on the reauthorization. I look 
forward to your continued participation and thank you for your 
testimony.
    Ms. Siggerud. Thank you.
    Mr. Oberstar. And you asked me, we did very well, I must 
say, colleagues, in the Appropriations Committee consideration 
of the continuing resolution. We have the $39 billion funding 
that equals the authorization level for highway and transit 
accounts in SAFETEA-LU, $35 billion in the highway account and 
$4.3 billion something in the transit account. So the 
solidarity of the members, Democrats and Republicans on this 
Committee, I think had its effect with the Appropriations 
Committee. Now when that bill comes to the House floor 
tomorrow, we all have to get up and vote for it. We asked them 
to fully fund, they have, and now we have to support it.
    Thank you.
    Ms. Brown. Thank you for your leadership, Mr. Chairman.
    Mr. Shuster.
    Mr. Shuster. Thank you very much.
    Mr. Scovel, you said that at the centerpiece of rail safety 
is grade crossings. I wondered, it seems to me to be extremely 
difficult because of the people doing dumb things, trying to 
outrun trains, in some cases you may have the town that is 
responsible for some of the signage that doesn't put signs back 
up and don't participate.
    You laid out five points, I think it was five points, on 
what we need to do. You talk about other things that we can do 
today, because it is impossible to put a bridge over a tunnel 
under everywhere a railroad crossing is. It is just a fact of 
life. I know we have had education problems out there. So if I 
could get you to comment on what we can specifically do to 
improve and diminish fatalities and accidents at railroad 
crossings.
    Mr. Scovel. Yes, sir. If I may elaborate on the five points 
that I outlined in my oral statement, there are approximately 
3,000 grade crossing accidents a year, one fatality and three 
injuries every day. Those numbers are down since 1995, but they 
are up during recent years 2003 through 2005.
    With better enforcement of Federal reporting requirements, 
we believe that FRA will be able to better identify dangerous 
grade crossings and target its enforcement efforts, its 
remedial efforts, and use SAFETEA-LU funding to improve 
conditions on those. I think you are absolutely right, Mr. 
Shuster, when you say that there are certainly people who will 
do dumb things, to use your term. Knowing human nature, we 
cannot prevent that.
    However, there are far too many people who have been caught 
at grade crossings that haven't been sufficiently marked or 
where vegetation has overgrown the roadway approach to the 
crossing. And because the sight distances have not been 
maintained, a train caught them unaware. And these are truly 
innocent people.
    So we have two broad categories. One, certainly people that 
we regret losing, but the second category, most certainly 
people who are truly innocent victims in their loss.
    Reporting requirements. There are two categories of 
reporting requirements. One concerns serious collisions and I 
mentioned those earlier. Those must be reported to the NRC 
within 2 hours. In November 2005, we reported that 21 percent 
of serious cases were not reported at all. It is disturbing to 
think that probably those serious cases were reported to 
railroad company authorities, to the operations center, to a 
dispatch center, to corporate headquarters, to a general 
counsel, to the company's insurance company. Yet, the Federal 
agency responsible for determining whether a Federal 
investigation should be conducted after a grade crossing 
collision was not informed. And that is in one case out of 
five.
    Our recommendation in 2004 to the FRA, which they adopted 
and have shown good progress in meeting, is that they reconcile 
cases reported to the National Response Center with cases 
submitted monthly to their own database. And further that they 
assess and collect civil penalties for the railroads' reporting 
failures. As I mentioned, they are making good progress on 
that. Our latest numbers through 2006 show that there have been 
only 12 serious cases that were not reported on time to the 
National Response Center.
    The second reporting requirement concerns all grade 
crossing collisions. Those must be reported within 30 days of 
the end of the month in which the accident occurred. This is 
important, not only to identify dangerous crossings, but also 
for state departments of transportation to determine how they 
should spend Federal money on grade crossing improvements.
    Our recommendation is that the Federal Railroad 
Administration conduct periodic reviews of records maintained 
by the railroads to ensure that grade crossing collisions are 
reported on time. By comparing railroad records with those in 
its own database, there may be some discrepancy that may serve 
as a basis for the assessment and collection of civil penalties 
on down the line.
    Sight obstructions is probably an area that we believe 
would yield immediate results. There are over 237,900 grade 
crossings, public and private, in this Country; 76,000 public 
grade crossings are not protected by automatic warnings 
devices. From 2001 through 2005, 688 grade crossing collision 
reports of 15,406 were identified as involving some kind of 
sight obstruction. It might have been standing railroad 
equipment, it could have been vegetation overgrowth, what have 
you.
    Twenty-three States currently have laws governing sight 
distances at crossings, but 27 do not. I invite the Committee 
to look at my written statement, which was submitted for the 
record. Page 7 contains a gripping photograph of a grade 
crossing in Illinois that illustrates the before and after 
results of proper maintenance of sight distance at a grade 
crossing.
    Mr. Shuster. I wondered if I could ask Mr. Sumwalt and Mr. 
Boardman, do we have any numbers on many different reasons, 
whether it is sight obstructions or whether technological, 
whether there needs to be technology there, or people doing 
dumb things, do we know what the percentage is of people trying 
to beat that train versus people that are crossing because they 
can't see the train coming? Do we know what those percentages 
are? I think those are key numbers to be able to determine what 
we need to aggressively pursue.
    Mr. Boardman. I think we know some of the numbers, 
Congressman. We have had since 2004 a grade crossing action 
plan that is getting results. When we look at, I just pulled 
statistics for 2001 and 2005, just on grade crossings 
themselves, the fatalities in 2001 were 421 and we are down to 
357. I recognize that they go up and down a little bit. It is, 
I think particularly frustrating to the FRA and to the industry 
that we don't seem to be able to push it lower. We have come 
down a long way since the 1970s and the 1980s. But we are 
getting down to a level now that it is much more difficult.
    The action plan looked at a lot of different kinds of 
things, including studying using video crossing cameras. One in 
Pittsford, New York on the CSX line itself, that we had a 
report in August of 2006 that was submitted on that and what we 
could do to improve and use that to cut down the number of 
crossing accidents.
    On the 15th of February, I will be up in New York 
finalizing a series of public workshops that we have had on 
private rail crossings to look at what we could do with about 
94,000 private rail crossings that are not eligible for things 
like the Section 130 program to improve crossings. Because our 
true belief is, every single crossing, 250,000 plus or minus 
crossings, needs treatment of some sort. It could be four 
quadrant gates, or channelization. It could be just wider 
pavement or markings or crossbucks or whatever it is for that 
particular crossing based on the risk, to reduce the number of 
incidents, collisions and accidents.
    That is part of our partnership that was mentioned earlier 
with Louisiana. Texas is looking at that. We have a sealed 
corridor in North Carolina that we have particularly good 
experience with, and we are working with California now on that 
same kind of sealed corridor there as well.
    Mr. Shuster. But there is no data on the, what did you say, 
450 fatalities at grade crossings last year? Is that the right 
number?
    Mr. Boardman. We can look at that specifically and get back 
to you with how we do break out what the reasons are.
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    Mr. Shuster. It seems to me that if we don't know why the 
majority of them are happening, we are never going to be able 
to come to a solution. Because again, and my guess is if we 
have trespassers, too, the trespassing and those combined, it 
is overwhelmingly the reason for fatalities. If we don't find 
out the reason why it is happening, we are never going to solve 
it. Because you are never going to solve and stop people from 
going around a grade crossing, not paying attention. So those 
are things I think we have to determine.
    Mr. Boardman. May I respond to that?
    Mr. Shuster. Sure.
    Mr. Boardman. I think you are absolutely right. In fact, in 
1997, the number of trespasser fatalities went above the grade 
crossing fatalities for the first time and it stayed there 
since that period of time. We are looking now and working with 
our partners and trying to find a way to profile those 
trespassers to find out the reason or the particular profile on 
the trespassers themselves, to look at reasons so that we can 
come up with solutions for reducing that number. Many of those 
are in the urbanized areas, and we do have some data, which we 
will be happy to share with you on what the other reasons are. 
But we have seen, and especially with these videos now that we 
have right in the trains, that for whatever reason, sometimes 
it is inattention, sometimes it is inattention because of 
alcohol use, sometimes it is thinking you are going to beat the 
train, that people actually go around our quadrant gates and 
others to beat the train.
    Mr. Shuster. My time has expired, and in my enthusiasm to 
ask my first question here, I wasn't paying attention to the 
clock. I thank you.
    Ms. Brown. Not a problem. Perhaps we will have a second 
round.
    I want to give Mr. Braley an opportunity to ask questions, 
and we will come back around.
    Mr. Braley. Thank you, Madam Chair, and thanks to the 
distinguished panel for taking the time to talk to us today 
about this important subject. Mr. Scovel, my father enlisted in 
the Marine Corps when he was 17, went ashore at Iwo Jima when 
he was 18. I think I have some sense of what your subordinates 
went through, since I was his subordinate growing up.
    One of the questions I want to ask you about has to deal 
with your comment about, with better enforcement of the 
reporting requirements, we can improve conditions at grade 
crossings. One of the things that was included in Mr. 
Boardman's materials was a proposal to revise the schedule of 
civil penalties for safety violations. My concern goes to the 
level of penalty associated with reporting and compliance with 
the action plan. As an example, one of the things that I can 
tell you from my former life is, having a reporting requirement 
and an action plan requirement and having it in place is one 
thing.
    Getting compliance from the subjects who are being required 
to make reports is another. One of the things we know is the 
Joint Commission on Accreditation of Health Care Associations 
has a sentinel event reporting process for medical errors that 
occur at hospitals. Despite the fact that the Institutes of 
Medicine projected 48,000 to 94,000 people die every year due 
to preventable medical errors, we know from their statistics 
that only 300 of those reports are filed on average every year.
    So my question for you is, what type of penalty is 
associated for non-compliance with the reporting requirement 
that we are talking about, and is that part of the revisions to 
the schedule of civil penalties that are being proposed?
    Mr. Scovel. I will defer to Mr. Boardman on some of the 
specifics to your question, sir. But if I may, it is my 
understanding that reporting of instances of failures to report 
may be subject to the assessment and collection of civil 
penalties. One of the things that we have worked with in the 
course of our studies has been the process by which FRA 
assesses its penalties, then aggregates them and then meets 
with each of the affected railroads to discuss settlement of 
those penalties.
    It is not clear to us, and frankly, we have not had an 
opportunity to delve in great detail into this area. It is not 
clear to us the extent to which any agreed settlement 
represents a complete aggregation of all assessed penalties on 
the table, or whether there is a penalty by penalty reduction 
or mitigation of the amount concerned. As I stated, we have not 
had a chance to examine that.
    We do know that FRA has recently reemphasized its civil 
penalty program, both with increased amounts and with increased 
attention to assessing and collecting a higher percentage in 
each category. By way of numbers, I can say settlement 
percentages after negotiations with the railroads have 
increased from 55 percent to 64 percent between Fiscal Year 
2002 through FY2006.
    We are cheered by that approach, most certainly. I would 
defer to Mr. Boardman for other specifics that may be more 
helpful to your question.
    Mr. Braley. Mr. Boardman, would you care to comment, 
please?
    Mr. Boardman. Because of the type of information you need, 
I would like to be able to respond in writing to you on what we 
have done to reenergize that.
    Mr. Braley. Is that part of your written proposal dealing 
with revisions to the schedule of civil penalties, or is that 
related solely to safety violations?
    Mr. Boardman. Do you mean in terms of the proposal that we 
are considering that is in clearance?
    Mr. Braley. Yes.
    Mr. Boardman. We are looking at that particular area. I 
don't have it and can't talk about this minute what might be in 
there.
    Mr. Braley. Would it be possible to follow up and provide 
further information?
    Mr. Boardman. Yes.
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    Mr. Braley. I would appreciate that.
    One of the other things that you mentioned was that the 
2004 grade crossing action plan was getting results, and I 
assume that it was impacting the number of fatalities and other 
injuries resulting from violations at grade crossings. Is there 
anything else that the Department is considering that would 
deal with new innovations in warning systems that are being 
used at grade crossings as part of this overall safety plan?
    Mr. Boardman. Well, the agency has been involved with the 
intelligent transportation system technology folks all the way 
along and looking at how in the future the technology that is 
going to be actually placed in the automobile may provide 
additional mitigation of or warning, I should say, crossing the 
railroad.
    We are certainly looking at every technological improvement 
to do that, including using solar power to light some of the 
crossing signs we have used. One of the things that we have 
done in this process, I always murder the term, is better 
conspicuity of the trains themselves by placing tape that you 
can see on the train. I was surprised when I came here how many 
of these collisions occur by somebody driving into the side of 
a train, especially on a darker crossing. So yes, we are 
working on those.
    Mr. Braley. Thank you.
    Ms. Brown. Mr. LaTourette. And let me just say that it was 
such a pleasure serving with you and working with you as your 
Ranking Member. I am so glad that you are on my Subcommittee. I 
am also looking forward to working with you. You exemplify what 
is important about working together in bipartisanship on this 
Committee. Thank you very much.
    Mr. LaTourette. I thank the Chairwoman very much. I want to 
join the mutual appreciation society, I was not here at the 
beginning of the hearing to congratulate you, but I certainly 
want to congratulate you on assuming the chairmanship of this 
Committee. I have enjoyed our relationship over the course of 
the last Congress. I felt that we were able to get a lot of 
things done and it was in large part because of you and your 
staff. So I congratulate you.
    I also want to congratulate my friend, Mr. Shuster, for 
being the lead Republican on the Committee. As you all know, I 
have been promoted to the Coast Guard Committee, of course. But 
I am looking forward to working with Mr. Shuster as well.
    Mr. Boardman, welcome to you. It is good to see you again. 
Let me just ask you, where are we with the whistle ban rule?
    [Laughter.]
    Mr. Boardman. Thank you so much for that question.
    Mr. LaTourette. You are welcome.
    Mr. Boardman. We have finalized. The final rule was in 
April of 2005. We had clarifying amendments for that that were 
completed in August of 2006. As of January 18th, we have 259 
quiet zones, and we have approximately 40 communities that are 
now in the establishment process.
    We looked at the results actually for the train horn rule. 
We have had 66 accidents after the zones were established, 24 
in 2005 and another 42 in 2006, and 2 fatalities and 19 
injuries among those accidents. And when we compare the data to 
the crossing data from 2000 to 2004, it doesn't suggest that 
the quiet zones are having an adverse effect.
    Mr. LaTourette. Thank you very much for that update.
    Mr. Scovel, I want to talk about a couple of your 
recommendations. One is my view, and my view only, that if 
there is a requirement that people report accidents, they 
should report accidents. If they don't report accidents, there 
should be a penalty. But putting that aside, I don't want the 
record to have an implication, because you use the word 
railroad supplied information. Is there anything in your 
analysis or research that indicates that the information is 
being supplied by the railroads when they report is somehow bad 
information?
    Mr. Scovel. Thank you, and I would like to take this 
opportunity to clarify that. To my knowledge, our research has 
not indicated intentional false information supplied by the 
railroads. This responds as well to one of your questions, Mr. 
Shuster, specifically concerning causes. Because I think this 
addresses both of your concerns.
    In the reporting requirement to the FRA database for all 
grade crossing collisions, there is no requirement that the 
cause of a collision be identified in the report submitted to 
the FRA. So whether it was a trespasser, for instance, or an 
innocent motorist caught on the track by an approaching train, 
it is not always immediately apparent from the report submitted 
to the FRA. That may be included, but it is not required to be. 
And that was the basis for one of our recommendations as well, 
that FRA increase its involvement in the investigation of grade 
crossing collisions by screening not only the information 
contained in its own database, but also going back to the 
railroad's own records, to see what those records may indicate, 
by reviewing data contained on the locomotive event recorder, 
if that is available. And also by checking with local or state 
law enforcement authorities, who may have had an opportunity to 
respond to the scene of an accident, and they may have been 
able to document the cause as well.
    I don't mean to say that the railroads, at least according 
to our research, have intentionally mislead any Federal 
authority. Our concern is with the timeliness of that reporting 
and then FRA's ability to follow up and conduct whatever 
investigation its admittedly limited resources may permit.
    Mr. LaTourette. And we are on the same page on that, and I 
think I said that. If there is a rule that the railroad should 
report something, they should report it. But I just wanted to 
be clear, it seems to me if they report a fatality at a grade 
crossing, there is an ability for the FRA to go get the police 
report from the town. And that brings me to, before I let 
Administrator Boardman hop in, that leads me to your 
observation that there was some, prior to the Graniteville 
crash, there was some information available dealing with 
switches.
    I guess my question is, what do you think the FRA could 
have done in that my understanding of Graniteville was that 
some people were in a hurry and left the yard and didn't put 
the switch back. I don't know what the FRA could do to, I 
assume people know that you are supposed to put the switch 
back. So I don't know that any amount of education is going to 
solve that problem. So maybe you could clarify what you were 
talking about with the switch in Graniteville.
    Mr. Scovel. Sure. My understanding of the circumstances of 
that accident is that a train proceeded down the track, it was 
time for a rest period, using a switch, the personnel on that 
train put their train onto a siding but didn't walk back to 
properly align the switch to the rear. A train with hazardous 
material aboard proceeded down the same track, and because of 
the improperly lined switch, collided with the train that was 
off on the siding.
    Mr. LaTourette. Right.
    Mr. Scovel. Our understanding is that FRA had been tracking 
switch errors for some years before the 2005 Graniteville 
accident. Our review of that data shows that from 1997 through 
2005, the number and rate of accidents caused by switch errors 
steadily increased. There was a large jump in 2003. Had FRA's 
safety office at the time been properly attuned to using 
predictive factors as the basis for alerts on safety issues, it 
might have been able, and again there is no guarantee, we 
certainly acknowledge that, but it might have been able to put 
the word out sooner about the dangers and the increased number 
of improperly lined switches.
    Mr. LaTourette. I get that, and I think maybe on this point 
we can disagree without being disagreeable. I think that most 
folks that work on the railroad know that you have to align the 
switch when another train is coming.
    Administrator Boardman, did you want to jump in on my other 
one and then I will be happy to be finished?
    Mr. Boardman. Sure. A couple of things, just to clarify, 
and I think actually, Mr. Scovel did clarify. The reports that 
weren't reported on the grade crossings really had to do with 
telephonically reporting them. There was a failure to 
telephonically report them, but they were actually reported in 
writing. So that was the disconnect there. Part of that may be 
because we broadened the requirements back in 2003, where it 
used to be you had to have five or more fatalities before you 
had to call in, and then that changed. So I think he has 
recognized that in the report. I just was clarifying that.
    In terms of the trend analysis, that is certainly something 
we would like to be able to do, to identify and predict these 
kinds of accidents beforehand, and we are addressing it in our 
human factors NPRM that was issued October 12th on the three 
cardinal operating practices. But when you really look at it, 
and I am just looking here at the improperly aligned switches, 
most of them occurred in yards. This was a mainline switch. 
There was this big increase from 2002 to 2003. But there was 
also a reduction again in 2004, and still it was in these yards 
rather than on the main line.
    So we understand the concept, the idea. I think putting it 
in practice is somewhat difficult with the data that we had.
    Mr. LaTourette. Sure. I thank all the witnesses. I thank 
the Chairwoman.
    Ms. Brown. Just for the benefit of the audience and the 
witnesses, and also the members, we are going to come back. We 
are going to have a second round. We are going to adjourn now 
until 4:00 o'clock, so we can go and vote and come back. I 
haven't had an opportunity to ask my questions.
    Thank you so much. We stand adjourned.
    [Recess.]
    Ms. Brown. The Committee is officially back in order.
    Ms. Napolitano, you can have your five minutes of 
questioning.
    Ms. Napolitano. Thank you, Madam Chairwoman. I would like 
to have permission to submit other questions, because I know I 
am not going to have enough time to proceed in all the lines of 
questioning that I would love to pursue.
    Ms. Brown. Without objection.
    Ms. Napolitano. Thank you, ma'am.
    To Mr. Sumwalt, you talk about railroad fatigue, the 
employee fatigue. My concern is also with the rail fatigue and 
the infrastructure fatigue. Identifying the areas how the 
railroad is addressing the life of a rail, because it does have 
a life, at least in the hearings that we have had in California 
over the derailments, I have been given several figures on the 
supposed life of a rail. My concern, especially in our area in 
California, is because of the proposed increase of the Alameda 
Corridor East traffic ten-fold or so in the next 15 years or 
so, that the increase in fatigue of the rail, the number of 
rail cars, the increase in the trains, they estimate one every 
ten minutes, one every six minutes, depending on who you talk 
to, is how do we identify that the railroads are upgrading the 
infrastructure to be able to safely handle the increase in the 
traffic, the increase in the load of the trains themselves, the 
amount of trains? And of course, that goes along with all the 
other questions about the rail crossings, about the insulated 
joint bars or the signalization, all of that. And how do we 
protect, how can we then look at that along with the employee 
fatigue?
    Mr. Sumwalt. It's a great question, Congresswoman. Would 
you mind if I let Bob Chipkevich answer that question?
    Ms. Napolitano. Not at all.
    Mr. Sumwalt. Thank you.
    Mr. Chipkevich. As you noted, there are many factors that 
affect the life of a rail. The gross tonnage, the number of 
trains operating over the condition of the ties and ballast, 
the supporting structure, that all affect how the rail is going 
to wear. Certainly what is important is to have a very good 
inspection program that is very disciplined, and a testing 
program, so that you can find defects before they grow to a 
critical size and fail and get that defect out of that rail and 
out of that line before you have a train accident.
    So the key really is to have a good, solid inspection 
program, a good testing program, one that can identify defects 
before they get to a particular size that is critical.
    Ms. Napolitano. After the several derailments in my area, 
as I have stated before, they have increased the testing, they 
have increased the inspection over the area, so we have not 
luckily had any other episodes. But who is in charge of the 
inspection and how often should it be done? I know you have 
specifics, and that should be a question that I don't need 
answered now, but I certainly would like to have it in writing, 
for this Committee to be able to understand the other factors 
that could cause accidents, besides the employee fatigue that 
we are talking about.
    In my area, after 9/11, there was a golden handshake with 
many of the railroad employees, they did not pick up new 
employees as easily. And when we had the increase in the ACE 
corridor, the Alameda Corridor East, they were talking about 
unmanned cars. We had a runaway train, I don't know if you 
remember or were aware of that one. It ended up in the Seals 
District. Thankfully nobody was killed. But it was not only an 
inconvenience, but it cost a lot of money, several million 
dollars worth of problems.
    And then of course there was talking about putting on 
unmanned cars, which I think is totally unacceptable. Because 
there is no determination of what they are going to encounter 
along the rail lines to be able to deal with and have an 
individual make a decision rather than somebody at a switch 
line somewhere trying to put those cars forth.
    You were talking about placing the hazardous material in 
the back and decreasing speed. We were informed by the rail 
folks that they end up putting speed as they go outside of the 
general area, coming out of the rail yards. They go through 
certain areas and of course, they do interfere with traffic, as 
I said, all the grade crossings we have. But they also have a 
habit of pulling on their switch, on their horn at all times, 
and that is of course not acceptable in urban areas, because 
there are people sleeping at 2:00, 3:00 in the morning. And 
that has been another area of concern with the local individual 
cities.
    With that said, like I said, I have a whole bunch of 
questions and I have to go to another committee, but how do we 
allow the States to be able to garner information from the 
cities or the police departments for information on accidents 
that are not reported otherwise? And how do we force the 
railroads to identify all accidents, not just those that 
qualify to be reported by them, given their criteria? That to 
me is something that we certainly want to assure the American 
public that we are looking at everything that affects them, not 
just what the railroad folks deem is acceptable as a reportable 
item.
    And I think my time has run out, Madam Chair, but I would 
certainly like to include several other questions in my 
committee reports, because I do have a lot of them, that deal 
with working with the States, working with the State public 
utilities. The statement that was submitted for the record from 
Steve Larson, the Executive Director, California PUC, it states 
that California needs and desires more direct accountability 
for railroad safety. I am sure you have copies of it, so that 
you can see his conclusions. Hopefully you will be able to 
address them to this Committee some time in the future.
    Thank you, Madam Chair.
    Ms. Brown. Thank you.
    Mr. Boardman. Madam Chairwoman, can I just respond to part 
of that, at least, if it's all right with the Congresswoman?
    Ms. Brown. Yes.
    Mr. Boardman. In particular, because of the partnership 
that we had with the California Public Utilities Commission, 
after the Pico Rivera accident, and in particular, the team 
that got put together really included the Public Utilities 
Commission on that particular accident. And that was one of the 
joint bar accidents that you identified, Congresswoman. In 
fact, what happened, immediately afterwards, after we did the 
inspection, the Commission also joined us in our RSAC group, 
which is the Railroad Safety Advisory Committee, and was 
actively involved in the consensus to get to a final rule that 
really required on-foot inspections of these joint bars. The 
final rule was actually published just this last October. So we 
do have very effective and full cooperation with the Public 
Utilities Commission.
    We are looking not just at this level of on-foot 
inspection, we also demonstrated, back in 2005, and then 
enhanced photo imaging to detect the cracks on high rail 
vehicles with the railroads again, in 2006, with GPS being 
added. Now we are enhancing it again to make it simpler, 
lighter, and less expensive in 2007.
    We are deploying, somebody said earlier, what we call the 
T18 vehicle. We will actually have five track geometry vehicles 
that the FRA owns that will be out looking at 100,000 miles of 
track a year. And we are seeing from 2001 to 2006 a reduction 
both in the percentage of the number of accidents that occur 
because of track defects, and the actual numbers of them as 
well.
    So I just wanted to let you know that we are staying on top 
of it. Your California Public Utilities Commission is working 
with us on it, and we appreciate that.
    Ms. Napolitano. Mr. Boardman, I was the one who called PUC 
and got them involved.
    Mr. Boardman. Yes, ma'am. And we kept them involved.
    Ms. Napolitano. Well, hopefully we will continue to, 
because they have better information than anybody else, so far 
as some of the rail accidents that happen in California. The 
research and development, I still have not gotten a report on 
the piece of joint bar that was sent for inspection to 
Washington from that accident. And there was supposed to be a 
follow-up as to the R&D that was going to be submitted to a 
university for research of how to address, how to identify it, 
how to see through the joint bar. Because apparently there is 
certain technology that is not totally able to see those 
hairline cracks inside the joint bar.
    Mr. Boardman. Congresswoman and Madam Chairwoman, if it 
pleases you, I will have my staff contact you and make sure you 
have that information.
    Ms. Napolitano. I would appreciate it, with a copy to the 
Chairwoman, because they were involved with us at that time.
    Mr. Boardman. Yes, ma'am.
    Ms. Napolitano. Thank you.
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    Ms. Brown. Thank you.
    And any questions that you have, just submit them for the 
record and we will follow up.
    Mr. Boardman, what is the FRA doing to prevent human factor 
accidents that are not related to fatigue?
    Mr. Boardman. Human factor accidents, and I know that 
fatigue, we're going to have a hearing on. So I do appreciate 
the fact that you identified that. We know at this point in 
time what the top causes of human factor accidents are. Some of 
them have been pointed out today and certainly, leaving the 
switch aligned incorrectly is one of the number one causes. 
Another one is leaving cars out to foul the main track. And the 
third one really is shoving a cut of cars into an area that 
doesn't have enough space for those cars.
    And those really are the cardinal operating rules for each 
of the railroads in human factor accidents. On October 12th, we 
published a NPRM to make those rules become Federal rules. That 
is working itself forward. We would expect by the end of this 
year, late in the year, we will have a final rule on that.
    We also have kicked off and will have a ceremony, I think, 
next month at UP on the close call reporting system. And we 
have other railroads that are also interested in that. That is 
just an ability to look at and find something that should have 
been an accident that wasn't an accident by having it reported 
by the employee and then protecting that information for the 
employee so we can find out what is happening. It has been very 
successful in the FAA.
    A third area that I think we have had good success with 
thus far, is working with BNSF out from Avard, Oklahoma to 
Oklahoma City, I think. I can't remember right this minute. We 
have a switchpoint monitoring program on dark territory track, 
which is one of the areas that is of particular concern to us, 
and is part of one of the major accidents that we had in 
January of 2005.
    Ms. Brown. I understand that the FRA is working on a 
project with Union Pacific and Dow Chemical to come up with the 
new tank car standards. Can you give us an update on that?
    Mr. Boardman. Yes, ma'am. Since the Minot disaster back on 
January 18th, 2002, FRA has had a plan to look at and work on 
the steel that is in tank cars, and has accelerated, because of 
safety and the interest of the Congress, the kinds of research 
that it would take with the Volpe Center in Massachusetts to 
get not only an idea of what we need to do with the steel, but 
also to get a baseline for performance of the current fleet of 
TIH vehicles and the historical accident data this year.
    We expected that we would get all that data and then what 
we would do is begin to build a new rule. But we pushed that 
forward in cooperation with this memo of agreement that we 
announced just December 6th for a next generation tank car that 
is being worked on by Union Pacific, Dow Chemical and Union 
Tank Car as well. That case will be using the Transportation 
Technology Center to test the tank cars and verify the baseline 
work that Volpe is doing.
    Our expectation is that together with PHMSA, we have had a 
couple meetings with the industry, we are going to have a 
couple more, and we are going to be able to enhance the 
performance standards for these tank cars and get a rule out on 
that by 2008.
    Ms. Brown. Thank you.
    Mr. Sumwalt, what can the FRA do right now to make 
transportation of hazardous materials safer?
    Mr. Sumwalt. Well, as the Administrator mentioned, there is 
great promise for the future. But as he mentioned, it will be 
at least 2008 before the rule is completed. Then it will take 
many, many years for the industry to equip all the tank cars 
with those newer cars. So the NTSB has recommended that in the 
interim, until these new tank cars can come in the fleet, there 
are operational measures that the industry could undertake.
    And we have suggested things such as looking at the tank 
car placement--by restricting tank car placement and by the 
way, we are only talking about gases, or carrying gases that 
are poisonous by inhalation. Not everything that goes into a 
tank car is necessarily catastrophic if the tank car breaks. We 
are talking about these cars that, if there is a rupture of the 
tank car, there is not much time for the people in that area to 
get out safely.
    So when we are talking about those types of gases, 
operational measures can give us immediate benefits. Again, 
tank car placement, we suggested, we recommend considering 
putting those tank cars toward the rear of the train. We have 
also recommended issues such as restricting the speeds of 
trains in populated areas. There are other operational measures 
that the FRA could look at.
    Ms. Brown. Would voice or video recorders help you in 
railroad accident investigations?
    Mr. Sumwalt. Certainly, Madam Chairwoman, in aviation 
accident investigations, we have derived great benefit from 
voice recorders. We have recommended to the FRA--we issued a 
recommendation years ago on that topic--that we would like to 
see voice recorders in locomotive cabs. The FRA responded to us 
and based on their response, we have now classified that 
recommendation as closed, unacceptable response. As far as the 
video recorders, we have issued no recommendations concerning 
video recorders on trains.
    Ms. Brown. Okay. Mr. Shuster.
    Mr. Shuster. Thank you.
    Ms. Siggerud, some have suggested that maybe the Federal 
Rail Administration needs to have additional resources and 
personnel to investigate and inspect railroad signals and 
crossings. Does the GAO believe that that is something the FRA 
needs, and do you have any scientific evidence to back it up, 
that it will make improvements in those areas, if they have 
more personnel?
    Ms. Siggerud. Mr. Shuster, we did not address that question 
directly in our recent work. But I would say, going forward, 
what we think, given the resources that the agency has and its 
limited ability to reach out and touch through inspection the 
many railroad operations that occur every year, we think the 
challenge going forward in this reauthorization is really 
trying to figure out how to help the FRA expand that reach.
    We looked in our report at several other models for doing 
that in related industries, in related organizations. So what 
we have laid out in the report is an approach to a risk system 
management. Essentially what that would involve is having the 
railroad industry itself identify precursors for accidents, 
look at the risks throughout its system, and then prioritize 
its resources to address the greatest safety risks.
    What we would then propose is that some of the inspection 
force that FRA has be used specifically to focus on those 
safety systems themselves and whether they are making 
sufficient progress in implementing that concept. Our view is 
that FRA could get a wider view of the compliance and the level 
of safety within the industry using that kind of an approach.
    Mr. Shuster. So I am not sure I understand, are you 
suggesting more personnel or--
    Ms. Siggerud. No, we are not. That is also because we 
looked specifically at that issue.
    Mr. Shuster. That was an issue in your studies?
    Ms. Siggerud. Yes, exactly.
    Mr. Shuster. Do you believe, or is there any evidence out 
there that more timely reporting on accidents will decrease 
accidents at the grade crossings? Because when I see the 
evidence, most of the time it is negligence on behalf of the 
motorist, and not necessarily the rail, or it is the local town 
that has not done something.
    Ms. Siggerud. The Inspector General's work on this seems to 
me to be very thorough, and I am in agreement with their views 
on this issue.
    Mr. Shuster. So you believe that more timely reporting on 
accidents would help the situation?
    Ms. Siggerud. Yes.
    Mr. Shuster. Mr. Scovel, you said that 21 percent, I forget 
the time frame you reported on, is that a trend? Is it 
something that has been level for the past several years? Or is 
that something that has just peaked or is it on decline?
    Mr. Scovel. Yes, sir, that figure is derived from research 
we conducted for the period May 2003 through December 2004. We 
reported that number in November 2005. And specifically it was 
that 21 percent of serious collisions had not been reported at 
all. Based on that finding, we recommended in 2004 that FRA 
reconcile the collisions in their own database with those in 
the NRC database. They have undertaken to do that, and as I 
mentioned before the break, during the first 10 months of 2006, 
our numbers show that they have reconciled 2,308 reportable 
collisions and found 12 collisions at that time that had not 
been reported. This is during the first 10 months.
    Mr. Shuster. So it has gotten significantly better?
    Mr. Scovel. It has, and we give full credit to the FRA for 
emphasizing those reporting requirements.
    Mr. Shuster. Did the FRA, did you do anything different in 
that regard, put a little more pressure on them, change rules, 
anything that would be obvious?
    Mr. Boardman. I think we paid attention to what we were 
told and recommended, and developed a strategy for actually 
making that comparison.
    Mr. Shuster. Right. That is a significant improvement.
    Mr. Sumwalt, recently there was a serious accident in 
Massachusetts, I believe probably just a couple weeks ago, 
where a couple folks from a maintenance crew were killed, two 
or three. Do you believe that operating rules, changing the 
operating rules is a more effective way, maybe we could have 
avoided that, or are there technological solutions that you 
believe could be employed that would be maybe a better way to 
move forward?
    Mr. Sumwalt. Thank you. Our investigation is ongoing 
Congressman, and we will be issuing a report on that as soon as 
we have all the facts.
    Mr. Shuster. I will be interested to hear about that in the 
future. In general, though, could you comment on technological 
solutions? I think you talked a little bit about it in some of 
your testimony about using positive train control.
    Mr. Sumwalt. Absolutely. The Safety Board has had positive 
train control on our most wanted list since 1990. And it does 
offer a lot of promise. We are glad to see the industry 
beginning to move forward. And there is a lot of promise.
    Mr. Shuster. Where does the FRA stand on that? I believe I 
read you had not come out with findings, final findings?
    Mr. Boardman. Positive train control is something that we 
have worked with Illinois on, with Norfolk Southern, and with 
BNSF. And we recently approved a product safety plan with BNSF 
so they could implement that on their service. That was done 
just in the last few months, in fact, last month.
    The other thing that we are looking at on technology for 
train handling are ECP brakes, which are electronically 
controlled pneumatic brakes. We recently, just this fall, 
issued a report that generated additional interest again back 
in the railroads. It was an initiative that actually the 
railroads, the AAR, really put out several years ago. What it 
really does is have an electrical line going down along the 
train, along with the air line, and control the air on the 
brakes electronically, which gives the engineer much better 
control of the train itself. We think that will substantially 
improve safety of train handling, and especially think it is 
good in unit trains, whether they be coal trains or intermodal 
trains.
    So we are making progress in those technological areas as 
well.
    Mr. Shuster. Thank you very much.
    Ms. Brown. As we pass the reauthorization, revision or 
reform, what is it, and this is open to any one there, what are 
the most important areas for this Subcommittee to focus on 
regrading FRA safety activities?
    Ms. Siggerud. Chairwoman Brown, I think I will just expand 
on my remarks to Mr. Shuster. We think it is very important for 
the FRA, given what we have seen as a fairly static safety 
trend, and accident rates, to do a couple of things. One is to 
extend the reach of the inspection force it does have, by 
looking specifically at the safety management systems and the 
safety culture of these railroad organizations.
    This will not be an easy change. When it was adopted within 
the Office of Pipeline Safety within the Department of 
Transportation, this was something that required a pilot 
project and implementation over a number of years. Most 
participants view it as effective in our recent work looking at 
that.
    There is a pilot project that has been proposed in this 
area that I am sure Mr. Boardman can or will say more about. 
However, it is a pilot project, and it is voluntary. So it will 
take some time before we see results.
    We also think it is very important, given the static trend 
that I mentioned, for the Committee and the Railroad 
Administration to work together to understand really what are 
the effects of these various new initiatives. We think the 
inspection plan looks good. We think the new human factor 
regulation has a lot of promise. They both are really in the 
very beginning of implementation. So we need to understand what 
effect they really will have.
    Many of the other initiatives are voluntary and will take a 
fair amount of participation by the railroads to have an 
effect.
    Mr. Scovel. Chairwoman Brown, if I may address your 
question?
    Ms. Brown. Please.
    Mr. Scovel. We would break it into two parts, if I may, 
first addressing the general topic of rail safety. We would ask 
the subcommittee to urge FRA to aggressively implement its 
National Rail Safety Action Plan. A component of that is the 
National Inspection Plan, which we see as holding great 
promise. We have it on our watch list, if you will. We intend 
to give it time, give FRA time to fully implement it. I will 
note that it has been less than a year since it was first 
instituted. So it is really not ripe yet for our review. But we 
intend to do that.
    Another area in the general topic of rail safety would be 
the items discussed by Mr. Sumwalt specifically, some of the 
technological and human factors issues that certainly merit 
this Subcommittee's attention.
    With regard to the specific topic of grade crossing safety, 
we continue to be concerned with reporting requirements and the 
timeliness of those. While those, with regard to the most 
serious collisions, while those do not hold the promise 
necessarily of identifying causes, immediately by the report, 
they do permit the FRA and in some cases even the NTSB to 
decide whether a Federal investigation is warranted. Those 
investigations of course would be able to identify the cause. 
And timeliness of that initial report from the scene gives the 
Federal agencies time to make the call.
    The other area that we would urge the Subcommittee to work 
with FRA on is model legislation, if you will, to assist the 
states in developing standards for sight obstructions at 
highway-rail grade crossings. As I hope we made clear in our 
testimony, that will be key for many grade crossings where 
there are not active warning devices in place.
    Thank you.
    Mr. Sumwalt. Madam Chairman, thank you. I would like to 
weigh in on that. For at least a decade, the NTSB has issued 
recommendations to the FRA regarding the need to establish 
scientifically based principles for fatigue management. Fatigue 
is a big issue with railroads and all modes of transportation.
    But in the case of the FRA, they have replied that they do 
not have the statutory authority to enact the changes, due to 
the stipulation in the Hours of Service Act. So we have a 
situation where we are making recommendations to an agency, yet 
that agency does not have the authority to enact the changes 
that we would like to see, due to stipulations of the Hours of 
Service Act. That would be one area that we feel could greatly 
assist.
    Mr. Boardman. Madam Chairwoman, we hope to have a bill 
through clearance and be able to talk about it a little more. I 
think there are three things I would say. One is that we 
believe that the pilot program that was talked about a few 
minutes ago on risk is a particularly important one, if what we 
can do through that is to ingrain an even greater level of 
safety culture in a railroad and in a specific location.
    We know today that we have to change the way that we hold 
railroads accountable. They have to change the way that they do 
their jobs today as we all have had to, as we have learned new 
science, as it is being talked about. So the second thing is 
that we want the opportunity to be able to apply that new 
science--that new understanding of what it takes to make sure 
that human factor issues and risks are reduced.
    Then lastly, we believe that it is also extremely important 
for us to have the right baseline data for grade crossings in 
this Country on an inventory basis. We have difficulty with 
some of the information that we get now that is not necessarily 
required. Thank you.
    Ms. Brown. My last question. The old teacher in me, if we 
were going to grade the FRA, what grade would we give it?
    Mr. Boardman. Shall I go first?
    Ms. Brown. Yes, you can.
    [Laughter.]
    Ms. Brown. A professor once told me, if you are going to 
get an A, what are you going to learn? Yes, sir.
    Mr. Sumwalt. You would like for me to answer that?
    Ms. Brown. Yes, sir. I would like everybody to answer that.
    Mr. Sumwalt. Oh, great.
    Ms. Brown. So we get a feel as to where we are and where we 
need to go.
    Mr. Sumwalt. Well, I look at numbers. We have over the 
lifetime of the NTSB and the lifetime of the FRA, issued to 
them 534 safety recommendations. Overall, the FRA has 
implemented 76 1/2 percent of those recommendations.
    Now, to put that in perspective, Madam Chairwoman, if we 
look at all of the other DOT modal agencies and we look at that 
as a composite, including the FRA, on average, the DOT modal 
agencies have implemented almost 82 percent of our 
recommendations. So with that respect, they are below the 
average of the other DOT modal agencies.
    But in certain areas, the FRA is doing very well. The 
Administrator mentioned that in October they issued a final 
rule on joint bar inspection. We think they did a nice job with 
that final rule. We also know that joint bar difficulties led 
to the accident at Minot, the accident at Pico Rivera. So we 
applaud their efforts for coming out with that final rule.
    On the other hand, the Minot accident, we found that the 
FRA's oversight of the railroad's continuous welded rail 
program was ineffective, because the agency neither had 
reviewed the program nor did their track inspectors have a copy 
of the program to determine if the railroad complied with it.
    Further, in the Flora, Mississippi accident, we found that 
an FRA inspector had identified deficiencies, but he did not 
ensure that these deficiencies were corrected. Thus, we found 
that the FRA's oversight was ineffective in that case to ensure 
proper maintenance by the railroad.
    Additionally, after an Amtrak derailment at Nottaway, Iowa, 
we issued a recommendation to the FRA to require railroads to 
conduct ultrasonic or other appropriate inspections to ensure 
that rails used to replace rails were free of internal defect. 
That recommendation is currently classified as open, 
unacceptable response. Thank you.
    Mr. Shuster. I have one question, the 76 percent, does that 
reflect, that you just mentioned earlier, that statutorily they 
say they don't have the ability to change, which I would 
imagine some of those 4,000 recommendations, is that accurate?
    Ms. Brown. You said 540?
    Mr. Sumwalt. Yes, ma'am, of the 534 recommendations that we 
have issued, the acceptance rate is 76 1/2 percent.
    Mr. Shuster. Any of them dealt with fatigue? Because that 
is something they have said the law won't allow them to--
    Mr. Sumwalt. I would have to defer to Mr. Chipkevich to see 
how we have classified that. That is a good question.
    Mr. Chipkevich. Yes, sir, some of those are probably due to 
some fatigue. But then some were also closed reconsidered, so 
it would not have a negative impact against the FRA also, 
because of their response.
    Mr. Shuster. Thank you.
    Ms. Brown. Anyone else? Yes.
    Mr. Scovel. Madam Chairwoman, if I may, we are greatly 
encouraged by the attention to a number of recommendations of 
ours that the FRA has devoted resources to recently. Attachment 
2 to our written testimony is a table illustrating or setting 
forth the recommendations that we have made to the FRA in our 
recent reports, and giving the current status. You will see 
that a number of those have been closed satisfactorily in our 
review. A number are open, but we are satisfied that current 
FRA leadership is devoting sufficient attention to those. As I 
mentioned, the immediate notification requirement is one that 
we saw most improvement on recently. We are pleased to be able 
to report that.
    We would like to see greater attention to the following 
items. First moving away from a traditional and reactive 
approach to oversight by using its inspection and enforcement 
data to identify safety problems. Number two, issuing safety 
advisories and regulations to address safety problems before 
train accidents occur. And again, this would be feasible if FRA 
aggressively moves to use predictive factors in trying to 
assess the probability for future train accidents.
    Number three, using its National Inspection Plan to better 
focus its resources on key safety areas, like track defects and 
improperly lined switches, as well as other human factors. 
Number four, moving aggressively to implement its initiatives 
to improve oversight and enforcement, such as implementing our 
recommendation to work with the other states that continue to 
have the most grade crossing collisions.
    I mentioned the success, apparent success that we believe 
Louisiana has enjoyed with its State action plan on grade 
crossing collisions. Texas we understand is moving in that 
direction. But there are four other states that, together with 
Louisiana and Texas are responsible for a great number of grade 
crossing collisions. We would like to see the FRA move quicker 
and do more with those other states to develop their state 
action plans.
    And finally, we would like FRA to broaden its review of 
grade crossing collisions in order to verify information with 
independent sources, like state and local law enforcement.
    Ms. Brown. Ms. Siggerud?
    Ms. Siggerud. Madam Chairwoman, I would like to answer your 
question in a couple of parts with regard to the grade. Looking 
back, I think it's hard to give a grade in the area of rail 
safety greater than a C, given that we have not seen 
significant improvement on rail safety accident trends.
    However, looking forward, I am standing here with the IG in 
agreement that we are more hopeful. I would like to say a B 
going forward, as we look at the initiatives that have taken 
place over the last couple of years.
    I would like to explain why I cannot give an A at this 
time. There are really two reasons. One is that several of the 
initiatives, including in the key area of fatigue, do rely on 
voluntary actions by the railroad.
    The second is that we feel that the Railroad Administration 
needs to look within itself and report to this Committee and 
others more about the effectiveness of its key enforcement and 
compliance program. That is, giving violation notices to 
railroads and fining them. Other modal administrations within 
this Department have undertaken such an evaluation under our 
recommendation and found it to be very useful in adjusting 
their enforcement programs.
    Ms. Brown. Mr. Boardman, do you want to add anything to 
that?
    Mr. Boardman. Yes, ma'am. I guess in the time that I have 
been here, I would tell you that the people at the FRA get an A 
for excellence, an A for integrity, an A for teamwork, and an A 
for partnership.
    Ms. Brown. What was the last one?
    Mr. Boardman. Partnership.
    Ms. Brown. Well, I really want to thank the witnesses for 
their valuable input and testimony and the members for the 
questions. Members of the Subcommittee may have some additional 
questions for the witnesses. We will ask you to respond to 
those in writing. The hearing record will be held open for 
those responses.
    Members are reminded that the Subcommittee will convene for 
the second part of this hearing tomorrow at 2:00 p.m. Until 
that time, the Subcommittee stands adjourned.
    [Whereupon, at 5:12 p.m., the subcommittee was adjourned.]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FOMRAT]


           REAUTHORIZATION OF THE FEDERAL RAIL SAFETY PROGRAM

                              ----------                              


                      Wednesday, January 31, 2007,

        House of Representatives, Committee on 
            Transportation and Infrastructure, Subcommittee 
            on Railroads, Pipelines and Hazardous 
            Materials, Washington, D.C.
    The subcommittee met, pursuant to call, at 2:00 p.m., in 
room 2167, Rayburn House Office Building, the Honorable Corrine 
Brown [Chairwoman of the subcommittee] presiding.
    Ms. Brown. Good afternoon. The Subcommittee on Railroads, 
Pipelines and Hazardous Materials will officially come to 
order.
    I want to welcome the members and witnesses to Part 2 of 
our hearing on reauthorization of the Federal Rail Safety 
Program. In the interest of time, I will submit my opening 
statement for the record and reserve my remarks for questioning 
the witnesses.
    But before recognizing Mr. Shuster for his opening 
statement, I ask unanimous consent to allow 30 days for all 
members to revise and extend their remarks, and to permit the 
submission of additional statements and materials by witnesses 
and members. Without objection, so ordered.
    Mr. Shuster?
    Mr. Shuster. I will follow the Chair's lead and submit my 
statement for the record, and welcome all the witnesses today, 
especially the gentleman from North Dakota. Welcome.
    Ms. Brown. I am pleased to welcome Congressman Pomeroy to 
the hearing this afternoon. The Congressman has spoken with me 
on numerous occasions about the accident that occurred in North 
Dakota in 2002. I understand that a witness from the accident 
flew to D.C. to be with the Congressman for this hearing, and I 
want to welcome her also. And also my classmate. So welcome.

 TESTIMONY OF THE HONORABLE EARL POMEROY, A REPRESENTATIVE IN 
    CONGRESS FROM THE STATE OF NORTH DAKOTA, ACCOMPANIED BY 
                        JEANNETTE KLIER

    Mr. Pomeroy. Thank you, Madam Chair. It is indeed a 
pleasure to refer to you in such terms, as well as Ranking 
Member Shuster, thank you.
    I have outlined in this testimony a most extraordinary 
thing, something that I have not seen before, and that is 
innocent citizens injured as proximate cause to railroad 
conduct identified in the National Transportation report, and 
yet we have a very curious ruling by a Federal District Court 
that says, there is no remedy for these people, that 30 years 
ago, and in conflict with, by the way, 30 years of case law 
thereafter, that there was a complete and absolute immunity 
rendered to the railroad. That needs to be addressed as the 
Federal Rail Safety Program is reauthorized.
    The facts of this case are really striking. At 1:39 a.m., 
January 18th, 2002, a Canadian Pacific Railroad freight train 
derailed near Minot. The freight train derailed 31 freight 
cars, 15 of them carrying anhydrous ammonia. Seven of those 
cars burst. They sent a vapor plume of anhydrous ammonia about 
five miles long, two and a half miles wide, spewing into the 
air. The resulting explosion also blasted a tanker car almost 
1,000 feet, took off the wall of a bedroom of a couple at a 
property close to half a mile away. It operated as a missile, 
as the anhydrous ammonia spewed out of the tear in that tank.
    This vapor plume spread throughout the valley around Minot. 
The fire department chief told me as they were dealing with the 
crisis, one of the things that occurred to him is they were 
going to need an awful lot more body bags.
    There were some fortuitous circumstances. It was 2:00 in 
the morning and it was 20 below outside. So houses were locked 
up tight and there wasn't a lot of activity, otherwise there 
would have been in fact, I believe, a very significant casualty 
count. After the area was cleared, one individual, John 
Grabinger, had died from the injuries suffered after fleeing 
his house and becoming disoriented in this opaque, poisonous 
cloud of ammonia. Thousands of others have suffered injuries, 
including individuals who sustained second degree burns to 
their skin. Many people are still suffering long-term effects 
because they have scarred their lungs, they have damaged their 
eyes, permanent physical damage. Asleep one minute, next 
minute, fearing for their lives in some kind of unknown 
poisonous cloud that has descended over everybody.
    The National Transportation Safety Board, July of 2002, 
released its investigative report into the incident. They found 
nearly 2000 defects, 2000 defects, along the railway line. 
However, in March of 2006, a Federal district court dismissed 
the cases of several victims by ruling that the Federal Rail 
Safety Act contains a clause stating that States can only adopt 
or maintain and enforce an additional or more stringent law or 
regulation or order related to railroad safety under limited 
circumstances that these individuals cannot have a cause of 
action because the Federal law had granted a complete immunity 
to the railroad. A three-judge panel of the Eighth Circuit has 
upheld this ruling. And five years after this terrible tragedy, 
these victims have still not received justice.
    Madam Chair, I greatly appreciate your also listening 
directly to one whose life has been upended in this accident, 
just to establish really for the record the completely 
unacceptable state of an interpretation of this 30 year old law 
that says suddenly, railroads have total immunity.
    Madam Chair, I yield back, but I am very pleased to have 
with me a constituent, Ms. Jeannette Klier.
    Ms. Brown. Ms. Klier.
    Ms. Klier. Madam Chairwoman, my name is Jeannette Klier, 
and I am from Minot, North Dakota, and I am very grateful for 
the opportunity to speak to you today and represent the 
citizens of Minot regarding this derailment.
    The night of January 18th, 2002 was a cold winter night. 
Little did I know that when I went to bed that night, I would 
soon be fighting for my life. A train carrying anhydrous 
ammonia derailed, spilling seven tank cars of this deadly 
chemical into the neighborhood. The sound of the derailment 
woke me from sleep, but it never occurred to me that this was a 
derailment.
    Thinking I was safe, I went back to sleep. A co-worker's 
phone awakened me and immediately, the smell of ammonia hit me. 
Following her instructions, I turned on the television for 
directions. The advice given was to go to the bathroom, turn on 
the water, put a towel under the door. I did this until I 
realized that I had inadvertently plugged the sink and the 
water had run over. This concerned me.
    I didn't know if the gas affected a person's ability to 
think clearly. So I went to the bedroom window and looked out 
towards the street, which had a street light. And what I saw 
scared me even more. This cloud was dense, swirling, greenish 
in color. It did not resemble fog. It was very noxious, and it 
burned to breathe. It was so thick that I was not able to see 
across the street.
    So I listened. And what I heard was unsettling. It was 
totally quiet. I didn't hear the sound of traffic. There were 
no sirens. And I knew that if there were going to be a rescue, 
the ambulances would be roaring past my house.
    This meant that it was too dangerous for rescue. It 
occurred to me that everyone might be getting overcome by this 
terrible gas, and that I too might be overcome and die right 
here. Then I considered that this might be a flammable gas. I 
just didn't know.
    So I knew that I had to make a careful and quick decision 
to stay and possibly die or to evacuate and possibly die. The 
odor was very intense in the house. So I decided that if I was 
going to die, I was going to die trying. I decided to evacuate.
    As quickly as possible, I threw on some clothes, grabbed a 
water bottle and a wet towel, took one last look at my kitchen, 
which was hazy with gas, put the wet towel over my nose and 
mouth and stepped out into the garage. It was stronger there. 
Moving as quickly as I could, I backed out of my driveway and 
proceeded down the street. But the anhydrous was so thick it 
was as if somebody had put a white sheet over my windshield. I 
couldn't see anything.
    I tried to hold the wheel straight, knowing that I could 
possibly hit a car, but even more, hoping that I wouldn't get 
hung up on a snow bank, because if I did, I would probably die. 
This anhydrous was so strong it burned my eyes. It burned to 
breathe. I was scared, but luckily, I was able to drive out of 
it. Living in North Dakota in the winter had taught me some 
blizzard driving skills that I found useful in this situation, 
as well as having winter survival gear in my car. I evacuated 
to my parents' home in another town.
    The anhydrous initially caused nausea, loss of appetite, 
just a feeling of sickness all over, as well as intense burning 
in my nose, throat, trachea, lungs, all of which subsided in 
time. It was my eyes that sustained permanent damage. They are 
painful all the time and are only relieved temporarily by 
prescription eye drops and over the counter lubricating drops. 
Driving any distance in the winter with the defrost on is 
almost impossible. And when living in a northern climate, the 
defrost is necessary.
    But I feel fortunate. Many others, like my good friend, 
Jody Schultz, sustained permanent damage to her lungs. She uses 
oxygen and nebulizer treatments day and night. She is younger 
than I am, and this has greatly affected her ability to work.
    In January 2006, in Minnesota State Court, after a month-
long trial was held for four victims of the derailment, the 
railroad admitted that it was negligent in causing the 
derailment, but would not take responsibility for causing the 
injuries to my eyes, as well as the injuries that the other 
three plaintiffs sustained. The jury, however, did not agree, 
and in my case, and in my case, they awarded me $300,000. The 
railroad is attempting to ignore what the jury had decided. 
Ultimately, this is not about money. I would much rather have 
the pain in my eyes go away.
    But without the ability to take CP to court, many others 
will be treated like me. Congress should now act to state again 
that people have the right to take railroads to court for 
personal injuries. Without this avenue, the railroads will 
continue to hurt people and just be able to walk away from the 
pain they have caused.
    I am concerned that this will happen again. The train 
passes by a grade school. Luckily, this derailment occurred at 
night and not when school was in session, or the tragedy would 
have been worse. This accident was not due to an act of nature, 
but to negligence in track maintenance. Canadian Pacific Sioux 
Line Railroad needs to be held responsible for the injuries 
that they have caused to the people in Minot. Injured people 
need laws to protect them in seeking just recourse through the 
court system.
    Please do all that you can to protect the injured. Mine is 
one of several hundred stories, some much worse than mine. And 
even though the railroad has admitted liability for the 
derailment, they are hiding behind the preemption argument. 
This may be even the bigger tragedy. This takes away all 
avenues for people to seek recourse for their suffering and 
allows CP Railroad to say, too bad, so sad, and go on with 
their usual business.
    This injustice must be rectified. The intent of the FRSA 
could not have been for this type of interpretation to take 
away victims' rights. We have to get this law clarified before 
another accident happens somewhere else in this Country. It is 
not if, it is when. Don't let the railroads use the preemption 
defense and use the FRSA as a shield for immunity and deprive 
victims of their rights.
    Madam Chairwoman, if you or any of the other members have 
any questions, I will try to answer them. Thank you.
    Ms. Brown. Thank you for your testimony.
    I have a question for you, Mr. Pomeroy. Before I get into 
my question, can you explain to me one more time why the rule 
that kept the group from going to court----
    Mr. Pomeroy. Yes, Madam Chair. There were different court 
cases filed. The witness with me was a group filing in State 
court in Minnesota. In addition to that, there was a Federal 
case filed, and that was held in Bismarck, at Federal District 
Court. State court actions proceeding pretty much like State 
court actions have proceeded ever since 1970 under this Act. 
The surprising development came out of the ruling of Bismarck, 
where the District Court said, in spite of the fact that we 
have 35 years of litigation against railroads, we now hold that 
the Federal Rail Safety Act really does not afford this kind of 
State court remedy under State law. Nor by the way is there an 
existing Federal point of relief for the plaintiffs either. So 
they are just out of luck. So it was basically, it was a 
determination of complete immunity for railroads under this 
Act, even though that was a very new and novel interpretation, 
compared to the bulk of case law since that time.
    This situation, Madam Chairwoman, we have all had town 
meetings. We have all had town meetings that have an element of 
outrage to them, given one circumstance or another that 
presents itself in this district. I will tell you, I have never 
seen a meeting like this one which I convened with the victims 
shortly after the accident. This happened in January of 2002, 
just a few months after 9/11. They thought that there had been 
a terrorist attack. We had weeping families in their home as 
this poison gas started to come in, they could visibly see it, 
as they said goodbye to one another and wrapped their faces in 
wet cloths, waiting for the end to come. It came for one man, 
who was out, got disoriented, hit the garage and couldn't get 
into the house. But for everyone else, they just carry these 
scars. There were psychological scars, some have healed, some 
haven't. But unfortunately, there are a lot of residual scars.
    Now, any fundamental notion of American justice is that 
when the National Transportation Safety Board did their 
exhaustive investigation, finds all this negligent operation of 
the rail by the railroad company, that there ought to be 
someone responsible for this damage. I think really that is the 
question before this Committee. You can clarify what has been 
the better than three decades standing in application of this 
law that yes, nobody gets immunity under this law. That is not 
what it ever meant. Or on the other hand, you can create a 
Federal claims system and have some kind of taxpayer pot that 
pays these people and gives the railroad a free pass. Or I 
guess the third alternative is you could say, well, Minot, 
tough.
    Most victims have recourse for negligent acts. If you have 
been hurt by a railroad--we love railroads, and they are 
important to us, so they do not have any responsibility for 
their negligent acts. Now, I do not think that that is a 
position that is going to wash with anybody. So I do put to 
you, to me the easiest thing to do is just simply clarify 
Congress' original intent.
    I might to our new colleague, Congressman Walz, these 
tracks, by the way, they come on into Minnesota, the CP Rail. 
So the same entity operating the system in Minot also operates 
trackage in Minnesota.
    Ms. Brown. Let me just ask, and you just answered part of 
my question, but as the Subcommittee plans for reauthorization 
of the Federal Rail Safety Program, what areas are most in need 
of revision or reform? And I just heard you, but do you want to 
add something else to that?
    Mr. Pomeroy. No, just to try and put a fine point on it. I 
don't think, in 1970 or at any point thereafter, there was 
Congressional intent for granting immunity to railroads under 
this Act. So as it is reauthorized, clarification, just a 
restatement of what has always been legislative intent here, in 
my opinion, would be helpful.
    Ms. Brown. OK. Mr. Shuster.
    Mr. Shuster. Thank you.
    And this was the only case in 30 some years that a ruling 
came down like this? There are other accidents that have 
occurred, and lawsuits and damages.
    Mr. Pomeroy. There have been plenty of actions. I am sorry, 
I didn't mean to interrupt you.
    Mr. Shuster. Well, this is the main case? That's the main 
point of my question, this is the only case in 30 years that 
there were no damages assessed?
    Mr. Pomeroy. I can't give you an exhaustive legal opinion, 
because I don't know. But I am aware, as my colleague is aware, 
there have been a lot of lawsuits against railroads over the 
years, crossing accidents seems like present maybe the largest 
number. But there have been any number of them for negligent 
operation of the railroads.
    Now we have a Federal District Court in North Dakota 
ruling, this never should have happened, because the original 
1970 Act really granted them immunity. It is a very novel 
ruling. It flies in the face of what has been kind of generally 
understood actions. To show you how generally understood it is, 
the Railroad Council themselves were settling some of the 
cases. They were litigating other cases. The railroad did not 
at any time act as though they had complete immunity until the 
Federal judge ruled.
    But there have been two other cases where other members are 
troubled about this recent trend of ruling. There was a case in 
Scotts Bluff, Nebraska. And I have talked about this matter 
with Senator Lindsay Graham, who is also very disturbed about 
plaintiffs in South Carolina being denied. So I am not going to 
say this is the only time it ever happened. I don't have a 
comprehensive knowledge of it, but I believe that this trend of 
ruling is very recent, and I am only aware of those three 
instances, South Carolina, Nebraska and North Dakota.
    Mr. Shuster. And that was a Federal court where this ruling 
came down?
    Mr. Pomeroy. Correct.
    Mr. Shuster. Thank you very much.
    Mr. Pomeroy. Thank you.
    Ms. Brown. Thank you very much for coming. I thank you, Ms. 
Klier. We will be working through these issues as we move 
forward with the reauthorization. Thank you.
    Mr. Pomeroy. Thank you very much.
    Ms. Brown. We will now proceed with Panel 2. Before we 
proceed, is the tape ready?
    Mr. Hamberger. I believe it is, yes, ma'am.
    Ms. Brown. We do not have any popcorn or sodas, but we are 
going to watch a two-minute film, and then we will start the 
testimony.
    Mr. Hamberger. Actually, we have it worked into the script.
    Ms. Brown. Well, first of all, let me welcome you all here. 
And we have Mr. Hamberger, who serves as President of the 
Association of American Railroads. Next is General Timmons, who 
is the President of the American Short Line and Regional 
Railroad Association. We have Mr. Wytkind, who is President of 
the Transportation Trades Department of the AFL-CIO. And we 
have Mr. Rodzwicz, who is the Rail Conference Director for the 
International Brotherhood of Teamsters. He is here representing 
the Brotherhood of Local Engineers and Trainmen, and the 
Brotherhood of Maintenance of Way Workers. And finally, Ms. 
Sharon Van Dyck, who is an attorney from Minnesota, 
representing the American Association for Justice.
    We are pleased to have all of you here with us this 
morning. Your full statement will be placed into the record. We 
ask that all witnesses try to limit their testimony to a five 
minute oral summary of their written statement as a courtesy to 
all of the witnesses. We will proceed in the order in which the 
witnesses are listed in the call of the hearing.
    Mr. Hamberger.

TESTIMONY OF EDWARD R. HAMBERGER, PRESIDENT AND CHIEF EXECUTIVE 
OFFICER, ASSOCIATION OF AMERICAN RAILROADS; RICHARD F. TIMMONS, 
     PRESIDENT, AMERICAN SHORT LINE AND REGIONAL RAILROAD 
 ASSOCIATION; EDWARD WYTKIND, PRESIDENT, TRANSPORTATION TRADES 
 DEPARTMENT, AFL-CIO; EDWARD W. RODZWICZ, PRESIDENT, TEAMSTERS 
 RAIL CONFERENCE; SHARON L. VAN DYCK, AMERICAN ASSOCIATION FOR 
                            JUSTICE

    Mr. Hamberger. Madam Chairwoman, thank you very much. Let 
me add my words of congratulations to those you received 
yesterday on your ascendancy to the Chairmanship of this 
Subcommittee. We appreciated the opportunity to work with you 
in your position as Ranking Minority Member and look forward to 
working with you as Chairwoman.
    At the same time, to Mr. Shuster, congratulations on your 
election and appointment as Ranking Member on this important 
Subcommittee. And welcome especially to Mr. Lipinski, with whom 
we have worked on Chicago issues, and Mr. Walz, to this 
Subcommittee.
    On behalf of the members of the Association of American 
Railroads, let me before I start make some comments about the 
testimony we just heard. I would like on behalf of the industry 
to offer my regrets and the entire industry's regrets to Ms. 
Klier for the suffering she went through. I think that in 
addition to the issue which she and Mr. Pomeroy raised, it 
raises a number of issues with which this Committee and 
Subcommittee have wrestled over the past couple of years 
regarding the transportation of hazardous materials, 
particularly toxic by inhalation hazardous materials, the 
common carrier obligation that the railroads have, and the 
liability that they have. So I think it is something that we 
need to take a close look at in the context of all of those 
issues. But again, our regrets and best wishes to her, and I 
thank her for coming here today, because I know it is a long 
way to come from North Dakota to bring her issues to the 
attention of the Subcommittee.
    I am going to run over, I can tell right now. May I ask 
permission to begin now?
    Ms. Brown. As much time as you may consume.
    Mr. Hamberger. Thank you very much, Madam Chairwoman.
    On behalf of the members of the AAR, thank you for this 
opportunity to address railroad safety. Nothing is more 
important to the industry than safety. It is the focus of many 
of our investments, it is the focus of many of our research and 
development programs. It is the focus of our employee training, 
and it is the focus of our operations.
    We are very proud of our safety record. Our industry has 
become much safer over the years. Between 1980 and 2005, 
railroads reduced their overall train accident rate by 64 
percent, and their rate of employee casualties by 79 percent. 
Not coincidentally, this record of safety improvements began 
with the passage of the Staggers Rail Act of 1980, which 
partially deregulated the industry. Deregulation provided 
railroads with additional resources that were invested in 
maintaining and improving track, equipment and signal systems. 
In fact, through last year, the industry has invested over $370 
billion in the last 27 years to improve its operations.
    I am pleased to say that that safety record continues to 
improve. Preliminary data for the first 10 months of last year 
indicate that 2006 could well be the safest year ever for the 
railroads by the three most commonly cited rail safety 
measures: the train accident rate, the employee casualty rate, 
and the grade crossing collision rate.
    But let's put that in context, because Mr. Gonzalez 
yesterday asked a very pertinent question: you're safer, but 
compared to what? And as you can see from this chart, from my 
written testimony, railroads are not only safer than in the 
past, but they are safer when compared to injury rates of all 
other modes of transportation and in fact, most other 
industrial groups, including agriculture, construction, 
manufacturing and private industry as a whole. Available data 
also indicate that U.S. railroads have employee injury rates 
well below those of most foreign railroads.
    In addition to the dedication and professionalism of the 
industry's employees--and I want to emphasize that--the 
dedication and professionalism of the industry's employees---
credit for the industry's safety record must also go to the use 
of new and safer technologies. We have many of these deployed 
under a program we refer to as advanced technology safety 
initiatives.
    The Subcommittee saw many of those during its two hearings 
last year in Pueblo, Colorado. Some of them include wheel 
profile monitors that use lasers and optics to capture images 
of wheels, trackside acoustic detectors and a rail defect 
detector car to detect internal rail flaws, using laser 
technology. Taken together, these technologies produced a 13 
percent reduction in the rate of broken wheel and broken rail 
accidents in its first 25 months.
    I know this is a matter of great concern for Congresswoman 
Napolitano. I want to assure her that we are working very hard 
in this area.
    As discussed yesterday, the greatest challenge to improving 
safety lies in the area of grade crossing accidents and 
trespassers. I want to thank this Committee for its leadership 
in expanding funding for the Section 130 grade crossing program 
in the SAFETEA-LU bill. As you know, that program funds 
separation and signalization of grade crossings around the 
Country. As you can see from the 2006 data, this is already 
having a positive effect.
    You asked yesterday, Mr. Shuster, what causes these grade 
crossing accidents. The most recent study, a 2004 FRA report to 
Congress, confirms that over the previous 10 year period, 94 
percent of public grade crossing accidents were caused by 
``risky driver behavior or poor judgment.'' We have an example 
of two such accidents on the monitor. I would like to point out 
that you will hear some comments from the crew. These are old 
tapes from Norfolk Southern. Norfolk Southern has since 
relocated the microphone outside the cab to address crew 
concerns.
    But the first one you will see, we are actually going to 
show it twice, first in real time, if you keep an eye on the 
left hand side of the track, you will hear the whistle blow by 
the way. It's going 31 miles an hour.
    [Video.]
    Mr. Hamberger. You hear the whistle. Watch the second car 
on the left. The gates are down.
    [Video.]
    Mr. Hamberger. We will see it again in slow motion, as he 
went around the car in front of him.
    [Video.]
    Mr. Hamberger. The second one is at a passive grade 
crossing where the driver, fortunately this was not a fatal 
accident, came, stopped too late, did not look and drifted into 
the right of way. If we showed you that again, you would see 
that there was no stop sign there. Fortunately, the Federal 
Highway Administration is changing its recommendations to the 
States to put yield or stop signs at all passive grade 
crossings.
    Madam Chairwoman, I spoke to one of your constituents 
yesterday from the Jacksonville school district, and she 
indicated a great deal of interest in having Operation 
Lifesaver volunteers come to her school district to explain the 
importance of stop, look and listen. We will make sure that 
that happens, working through your office.
    Finally, I want to address what may have been a mis-
impression left with this Committee by Mr. Scovel, the 
Department of Transportation Inspector General, when he spoke 
about reporting accidents at grade crossings. What he did not 
tell you was that in a November 28th, 2005 audit of the FRA by 
his office, his staff wrote, ``The 115 unreported crossing 
collisions that were not reported to the National Resource 
Center were reported to the FRA within 30 days as required by 
law.'' So I want to emphasize that the railroads did in fact 
make the report. They made it to the FRA and not to the 
National Resource Center.
    His office went on to find: ``FRA officials also stated 
that railroad employees were confused about which collisions to 
report to the NRC as opposed to which ones to the FRA. Their 
confusion contributed to missed reports. We found the reporting 
requirements to be complex and potentially confusing as well.''
    Consequently, his office went on to make a recommendation 
to the FRA, ``In our opinion, to avoid confusion over the 
reporting requirements for railroads, FRA must clarify its 
requirements for reporting collisions to the NRC.'' And as you 
heard yesterday from Administrator Boardman, they have since 
done that, and in fact, Mr. Scovel testified that a similar 
audit in the first 10 months of 2006 found that only 12 
accidents out of almost 3,000 investigated resulted in a missed 
report of that accident. That is way below the 21 percent which 
he talked about yesterday.
    So I would say from the standpoint of trend analysis, 12 
out of 3,000, that number is statistically insignificant, and 
that in fact, I believe that issue has been satisfactorily 
resolved.
    Thank you for the opportunity to testify on rail safety. 
The industry is committed to working with you, the FRA, our 
employees, and our customers to ensure that railroad safety 
continues to improve. I appreciate your indulgence, Madam 
Chairwoman, in letting me run over time.
    Ms. Brown. Mr. Timmons?
    Mr. Timmons. Good afternoon, Madam Chair. Let me offer my 
congratulations also to you and Mr. Shuster. It is a pleasure 
to see you both in those positions and I look forward to 
working with you in the future.
    I appreciate the opportunity to appear this afternoon on 
behalf of the American Short Line and Regional Railroad 
Association. Nationwide, there are over 500 short lines, 
operating nearly 50,000 miles of railroad, employing over 
23,000 individuals. Twenty-five of the 30 members of this 
Subcommittee have one or more short line railroads operating in 
their district.
    As has been said many times this afternoon, there is 
nothing more important to the success of railroading than 
safety. To short lines, it is not only good business, but it is 
a personal matter. Short lines are small companies, where every 
individual is well known to the other. Mr. Hamberger cited the 
considerable improvement in the railroad industry safety data. 
I am pleased to say the short line industry has contributed to 
that improvement.
    According to FRA data, in the five year period from 2001 to 
2005, the short line industry's total number of injuries has 
declined by 26 percent. If you bump that through October of 
2006, the number increases to 40 percent. So in the brief time 
I have, let me make three points.
    First, this is a hearing concerning the reauthorization of 
the Federal Rail Safety Program. I should start by saying that 
the short line railroads are generally very satisfied with the 
operation of this program. We believe the law itself and the 
administration of that law by the Federal Railroad 
Administration has made a significant contribution to the 
safety of the industry.
    Having said that, we do disagree with the FRA's newly 
proposed provisions to revise the schedule of civil penalties, 
which will approximately double fines for safety violations. We 
have submitted comments on this subject to the FRA, and I will 
not repeat those here, other than to say that we believe the 
agency should adopt a sliding scale of penalties. Track 
violation penalties, as an example, could be based on track 
classification. Other categories of violations could similarly 
have an adjustable scale for us.
    Our railroads operate at much lower speeds and much lower 
densities, and thus have a much lower accident severity risk 
than the Class I railroads. To double fines under the current 
system is unreasonable and would impose a significant hardship 
on small railroads that is unjustified, considering our 
operations and safety record. Additionally, a fine-doubling 
policy clearly deviates from the FRA's policy statement 
concerning small entities in CFR 49 Part 209, where the FRA 
recognizes the special needs of Class II and Class III 
railroads.
    Secondly, we believe that the most important thing a short 
line railroad can do to improve safety is to improve its track. 
As you know, the short line industry inherited the worst of the 
Nation's track infrastructure when we began taking over these 
properties in the 1980's. Today's short lines plow almost a 
third of their annual revenues back into infrastructure 
improvements. That is more than any other industry in the 
Country. Beginning 2005, we have been able to increase that 
investment, thanks to the rehabilitation tax credit that so 
many of you were helpful in securing. As our track improves, 
our safety record will improve. We think the statistics I 
mentioned earlier bear that out.
    Our three year tax credit expires at the end of 2007. And 
we are seeking a three year extension. Twenty-five of the 30 
members of this Subcommittee were co-sponsors of our original 
tax credit legislation and we hope you will do so again. Of the 
remaining six, five are new members, and did not have an 
opportunity to co-sponsor. We hope they will consider doing so 
at this time.
    Third, I would like to briefly address the issue of 
hazardous material. Almost to a company, we would prefer to 
give up this traffic. We cannot adequately ensure the risk, and 
for most short lines, a single accident means going out of 
business. In the majority of cases, the short line does not 
even set the rate, so there is virtually no relationship 
between what we earn and the risk we assume.
    Compounding the rate inadequacy problem is the fact that 
for short lines, the cost to insure one car is just as much as 
it would be for 100. I fully understand how difficult this 
issue is for the Congress. There is strong special interest 
opposition to a meaningful cap on any liability. Neither the 
producers nor the end users are willing to pay the real price 
associated with this transportation and would vigorously and 
probably successfully oppose any such proposal in the Congress.
    But the fact remains that some day there will be an 
accident on a short line railroad. Ultimately, that railroad 
will be put out of business. When that happens, many more short 
line railroad owners will decide that the risk is too great and 
will throw in the towel, to the detriment of the communities 
and the shippers they serve throughout the Country.
    We believe that a realistic solution to this problem will 
involve some combination of a limit on liability, a greater 
assumption by the cost by the producers and end users, and 
perhaps some kind of Government insurance program that assumes 
the risk above a certain level. Possibly the Price-Anderson 
mechanism may be the most reasonable solution. For that to work 
for short lines, there needs to be some kind of bridge between 
our company insurance and what will undoubtedly be a much 
higher liability limit under the new mechanism.
    So I strongly urge this Committee to vigorously pursue a 
solution before, not after, a crisis occurs. The short line 
industry certainly stands ready to make whatever modest 
contribution we can to crafting a solid solution. So I 
appreciate the opportunity this afternoon to appear here, and 
would be pleased to answer any questions that you might have at 
the appropriate moment.
    Thank you, Madam Chair.
    Ms. Brown. Thank you, Mr. Timmons.
    Mr. Wytkind.
    Mr. Wytkind. Madam Chair, thank you for inviting 
Transportation Labor to appear before you today. And to all the 
members of the Subcommittee, I appreciate the invitation to 
appear before all of you. I too congratulate you, Madam Chair, 
for your rise to the chairmanship of this Subcommittee. We have 
a lot of confidence that rail workers' voices will be 
considered as you deliberate over rail safety and the number of 
other initiatives before this Subcommittee.
    It is no secret that reauthorization of rail safety 
legislation is so long overdue. It is frankly outrageous that 
because of the opposition of the railroad industry, every 
attempt to pass authorization has been blocked for over a 
decade. Fortunately, it appears this Committee is now poised to 
act on much-needed changes to our Federal rail safety laws.
    The reason behind the delay has been real simple: 
stonewalling and political gamesmanship up on Capitol Hill by 
the railroad industry and its lobbyists. It is plain wrong to 
have the railroad safety laws of this Country held captive to 
special interest lobbyists of the railroad industry. I think it 
is time now to take a serious look at what has happened in the 
last 10 to 12 years that needs to be changed through very 
vigorous enforcement and oversight by our Government and by 
Congress.
    I reject the proposition that the railroads have been 
advancing now for over a decade, which is that which they agree 
to should be implemented by the FRA through their joint 
rulemaking procedures with the railroad unions and everything 
else should be scrapped. That is essentially the position they 
have been taking since the Federal Railroad Administration and 
the DOT tried to enact a number of rail safety initiatives in 
the 1990's, which were also blocked by the rail industry.
    We have offered a number of proposals, but I will only 
summarize a handful of them, for purposes of today. We believe 
first and foremost that railroads must be held accountable for 
their conduct and must face not only aggressive enforcement 
action but also robust fines when they skirt their 
responsibility to run safe railroads and protect their workers. 
We must combine those enforcement tools with strong 
whistleblower protections for employees. Safety and security 
training must be mandated, because the industry is not 
performing those functions.
    Chronic fatigue must be addressed in any legislation. And 
we believe that the use of technology, including off the shelf 
signaling technology, can finally rid the rail network of many 
of its hazards, including so-called dark territory, which is 
unfortunately prevalent in the industry and is threatening 
public and employee safety around the Country.
    First, regarding enforcement measures. It is a fact that 
for every violation the railroads are levied with, they pay on 
average $30. That is hardly a penalty that matches the crime, 
so to speak. We believe that the penalties must reflect the 
seriousness and the volume of the safety violations.
    Second, as a companion to these enforcement tools, 
harassment and intimidation in the railroad industry must be 
put to a stop. I have been talking about this for over a decade 
before this Committee and before the Senate Commerce Committee. 
The employees in the railroad industry are harassed and 
intimidated into not speaking up about safety problems. It is a 
culture that has been around for decades. It is something that 
the railroad industry and its representatives like to basically 
gloss over and ignore and make you believe they do not exist. 
But they do. And we believe it is a serious issues in trying to 
deal with safety and security threats in the industry. No 
worker should have to choose between his or her job security 
and the safety of the system.
    Third, training is not being done at the level it should 
be. It must be mandated in the legislation. And staffing 
shortages should at least be looked at by the Committee to make 
sure that the staffing needs of the industry are being met to 
meet the safety priorities of the Country.
    For years, we have listened to rail industry claims about 
all the training that takes place. It is not happening. I am 
told instead that these workers are overworked, understaffed 
and ill-equipped to manage the capacity crunch that plagues the 
system. I hear about new hires not keeping pace with an aging 
work force. I hear about a condensed, one size fits all 
training program, because there is not time to train the new 
hires. I hear about new employees resigning in droves because 
of the lack of quality of the job and the training, and because 
of their lack of preparedness for the job, because of the 
railroad's inattention to those issues.
    In short, the FRA must be compelled to require strong 
training programs. Separately, on the security side, the same 
problem exists. Since 9/11, I have been talking personally 
about this and all of our unions have. Our members are not 
being trained to deal with security threats. No matter how many 
glossy overheads, no matter how many nice brochures get put 
out, no matter how glossy the curriculum looks, they are not 
getting trained. And until they are trained, we have a railroad 
industry that is exposed to security risks and threats, and it 
has a workforce that is not ready to deal with those threats in 
a head-on fashion. Showing low budget security videos for 20 
minutes hardly constitutes real security training.
    Finally, on fatigue, I know you are going to hold a hearing 
and maybe a series of hearings on it, but I must address a 
couple of points. In the McDonough, Texas collision, where a 
hazmat release ensued and three deaths occurred, the worker on 
duty was very clear about the fact that he couldn't come on 
duty, because he was tired. He tried to take a day off for 
rest. Instead, he got two hours sleep right before that 
accident occurred.
    This is the kind of story that is going on all over the 
railroad industry. Other workers are being pushed to the brink. 
It is not unusual for the railroads to game the Hours of 
Service Act and for workers like signalmen to work as much as 
18 or 20 hours in a 24 hour period. Something has to change, 
and I think this legislation has a chance to deal with fatigue 
problems in the industry.
    I will conclude, Madam Chair, I have many other things I 
could talk about and I will. But I will end with a quick story 
in Illinois. I apologize for going over as well. But in 
Illinois recently, rail employees and their unions attempted to 
pass a reasonable safety piece of legislation that dealt with 
the lack of prompt medical attention for rail workers. The bill 
enjoyed strong bipartisan support at the State level and the 
State legislature. The Illinois house passed it.
    The senate then took up a compromise bill that the 
railroads negotiated with the unions and the politicians and 
the State. The State senate passed the bill with the 
expectation that the State of Illinois would not get objections 
from the railroad industry.
    Well, before that train left the station, the railroads 
reneged on the deal. They filed suit in Federal court and they 
overturned the very legislation that they agreed to and in fact 
helped to write.
    I make this point only because this is exactly the kind of 
stonewalling we have been dealing with at the Federal level for 
over a decade. No matter what the initiative is, if it tells 
the railroads what to do, when to do it and how to do it, they 
say no. They say no all the time. They don't just say no, they 
say, hell, no. And until the Committee and the U.S. Congress 
decides it is time to pass rail safety legislation over the 
objections of the rail industry, it is going to be very 
difficult to achieve it.
    But I have a lot of faith in you, Madam Chair, and in the 
full Committee Chairman, Mr. Oberstar, who has just joined us, 
and in all the members of this Committee, that we are going to 
finally get a chance to deal with the rail safety crisis that 
we think we have in this Country.
    Thank you, and I appreciate the time you have afforded me.
    Ms. Brown. Thank you.
    Mr. Rodzwicz.
    Mr. Rodzwicz. Good afternoon, Madam Chairwoman, Mr. Ranking 
Member and Subcommittee members.
    As president of the Teamster Rail Conference, and on behalf 
of more than 70,000 men and women we represent, made up of the 
Brotherhood of Locomotive Engineers and Trainmen, and the 
Brotherhood of Maintenance of Way Employees, thank you for 
holding today's hearing and providing us with the opportunity 
to give you our views on reauthorization of the Federal Rail 
Safety Program.
    Safety is a vital concern to our members who place their 
lives on the line every day in order to transport the people 
and the goods that keep our economy running. In the last six 
months, seven railroad workers have been killed in the line of 
duty. That result is unacceptable to the Rail Conference. I 
challenge the FRA and the industry to move forward immediately 
and decisively to correct the causes of those tragic deaths.
    BLET and BMWED both are proud members of FRA's Railroad 
Safety Advisory Committee, and have served since RSAC's 
inception in 1996. We believe that with some significant 
exceptions, we have made progress improving rail industry 
safety, because of consensus based rulemaking under the RSAC 
process. And, although we don't always agree with them in the 
end, we appreciate the respect and consideration we receive 
from AAR and the Short Line RSAC partners.
    We are also proud of our relationship with the FRA. We 
believe that the FRA's performance strongly warrants a multi-
year reauthorization of the Federal Rail Safety program, so 
that we can proceed in an orderly fashion in the years ahead. 
Reducing accidents and injuries related to human factors cannot 
happen if we focus solely on the person who is closest in place 
and time to an accident. Rather, comprehensive accident 
prevention and safety enhancement must also include continuing 
study of and adjustment to the work environment as a whole.
    For this reason, we believe the Federal Rail Safety Program 
needs to address a number of issues to complete the circle to 
ensure employee safety. I will briefly identify some of them in 
no particular order of significance.
    Fatigue continues to be a major concern for us. Operating 
crews in freight service for the most part work on an 
unscheduled operation. At minimum, we need to address fatigue 
for operating crews by one, counting limbo time as hours of 
service; two, requiring a ten hour calling time, so people can 
have adequate opportunity to rest before reporting for work; 
and three, implementing basic, concrete fatigue counter-
measures. At a minimum, operating employees should be permitted 
to request rest when an individual believes it is needed for a 
safe operation.
    Causes of maintenance of way worker fatigue also require 
additional study and counter-measures must be adopted. 
Maintenance of way workers are often required to travel 
hundreds of miles to report to work sites on their days off. 
These same workers are also the only rail workers who are 
expected to obtain adequate rest in multi-person occupancy 
lodging. On Norfolk Southern, for example, many employees in 
such service are forced to sleep eight people to bunk cars, not 
provided with potable water and forced to use outside toilets. 
These conditions on NS are intolerable, and the entire 
treatment of maintenance of way workers needs substantial 
improvement.
    We know that track caused derailments account for 
approximately one-third of all rail accidents. Railroads are 
not hiring and retaining a sufficient number of employees to 
adequately maintain the Nation's rail infrastructure. Staffing 
levels have been reduced by nearly two-thirds over the past 25 
years. While some of this decreased can be attributed to 
improved technology and greater work productivity, the fact 
remains the existing track force levels are insufficient for 
the task at hand.
    Madam Chairwoman, may I have additional time to complete my 
testimony?
    Ms. Brown. Yes, sir.
    Mr. Rodzwicz. Thank you.
    The lack of manpower causes the Nation's rail 
infrastructure to maintained in a reactive, rather than a 
proactive mode, putting other rail employees and the 
communities near rail lines at greater risk for injuries caused 
by track related derailments.
    Also on the subject of staffing and safety, I want to 
repeat something to you that you have heard from the Rail 
Conference and from our divisions in the past: we fully support 
development and deployment of positive train control. PTC is a 
safety overlay on the top of existing signal and train control 
systems and can provide each and every Rail Conference member 
with an important added margin of personal safety.
    However, we oppose implementation of PTC simply as a means 
of reducing crew size, because trading a set of known risks for 
a set of unknown risks will jeopardize public safety and the 
safety of our members. Increased individual worker liability 
and the testing and implementation of a number of next 
generation technologies also means the training standards need 
to be improved. Second class training won't cut it if first 
class performance is expected and demanded of railroad workers.
    We also want to state that we fully support Mr. Wytkind's 
statements concerning certification of car men, conductors, 
mechanics and signalmen, as well as with respect to staffing, 
training and certification for hazardous material movements. 
FRA is currently conducting a number of studies which we 
support. We believe several other studies are also warranted. 
Briefly, these include the safety impact of contract drivers, 
of railroad crews to and from duty assignments, and evaluation 
of conflicting and confusing railroad operating rules, follow-
up studies of switching operations, fatalities analysis, and a 
collision analysis working group. And a study of locomotive cab 
environment and its impact on human performance.
    We also believe FRA should reopen its investigation and 
study regarding the discharge of human waste along tracks where 
maintenance of way workers perform their tasks, which I address 
in detail in my written testimony. I simply cannot believe that 
in the 21st century, railroads use onboard toilets that dump 
human waste on tracks where our members work.
    We also believe reauthorization should address ongoing 
problems concerning main track switches and dark territory, 
routes on which no signal system is in place. My written 
testimony provides more details. In short, we believe that the 
NTSB recommendations from its report on the Graniteville 
tragedy should become mandatory requirements.
    Once again, I thank the Subcommittee for hearing us today. 
I am certainly happy to answer any questions you may have. As 
an echo to the other members testifying today, congratulations 
to you, Madam Chairwoman and to the Ranking Member. Thank you.
    Ms. Brown. Thank you.
    We will hear the last testimony and then we will get into 
questioning.
    Ms. Van Dyck. Thank you for inviting me to speak today. I 
am speaking on behalf of the American Association for Justice, 
formerly ATLA, one of the largest practicing trial bars in the 
world. My name is Sharon Van Dyck, and I practice law in 
Minneapolis, Minnesota.
    The purpose of my being here today is to make you aware, as 
the Railroad Subcommittee, of the scope of the problem that was 
referenced by Mr. Pomeroy and his client. That has to do with 
the way preemption is being interpreted by the courts in 
today's environment. Because this Subcommittee and ultimately 
the Committee and ultimately Congress, has the ability to fix 
it, to fix it and make it clear that the courts have it wrong, 
and that they have it wrong because in 1970, when the Safety 
Act was passed, it was never intended to be done the way it is 
being done now.
    The FRSA is a safety act, and the whole purpose of it is to 
improve railroad safety for everybody, for railroad workers, 
for the public, and in particular the public is what is at 
issue here. The FRA has been empowered to draft safety 
regulations and has done it, has done a lot of it. The problem 
is that recent courts are dismissing State law based claims, 
leaving victims with no remedy based on how the preemption 
clause and the Act is being interpreted. And I believe that 
that goes to one of the questions, Madam Chairman, that you 
asked, what is happening, what is causing this.
    The Act has a preemption clause because everybody wants the 
uniform safety provisions that have been promulgated, which are 
minimum standards that everyone should be following. They want 
that to be the minimum standard. They don't want people going 
below that standard. And for years, probably 25 years, courts 
pretty much interpreted the FRSA preemption clause that way.
    What has been happening approximately since about 1993 and 
increasingly worse, through the Minot case, and I think the 
reason Minot is such a terrible example--it is an excellent 
example, but a terrible event--is because it is the ultimate 
example of what happens when the law is interpreted the way it 
is being interpreted now, is that it leaves all these people 
with absolutely no remedy. The FRSA does not provide a remedy.
    What is being said is that if there is a regulation or it 
is an area that is regulated by the safety standards in the 
railroad industry, that the intent of Congress was in the past 
and still is to say the mere existence of a regulation for 
safety is enough, and that any citizen who is injured in a 
derailment, in a crossing case, in any kind of accident, where 
those standards have not been even upheld at all cannot be 
challenged. The mere existence of the safety regulation 
eliminates all State rights in terms of going to court and 
getting a remedy.
    And that is what happened in the Mehl case in North Dakota. 
The judge said, my hands are tied. The judge said, Congress, 
you have to fix this. And as much as I personally and many of 
us do not believe that that is what the law is or what the 
preamble actually says or was ever intended to say, that is 
what courts are interpreting it to do. So we have a Federal 
statute that provides no remedy. The mere existence of safety 
standards that courts are saying mean that if there is a 
standard, you have no remedy. And the latest is that it is 
being used with complete preemption to pull court cases out of 
State court into Federal court and then dismiss them.
    This was never what the Federal Safety Act was intended to 
do. It was not used that way for 20 to 25 years. The fix is 
simple. The fix is to add a sentence to the preemption clause 
that clarifies that the State law remedies are in place. That 
is my purpose in being here today and I thank you for your 
time. I am perfectly willing to answer questions.
    Ms. Brown. Thank you.
    At this time, I am pleased that our distinguished Chair of 
the full Committee has joined us, Mr. Oberstar. Mr. Oberstar, 
as I said yesterday for those who were not in the room, you 
started out as a staffer with this Committee 44 years ago. And 
now his picture will be on the wall as Chair. I am very happy 
to be one of his chairs, and I can tell you, no one in the 
entire Country knows more about transportation in every aspect, 
probably in the world, than our Chairman, Mr. Oberstar.
    Mr. Oberstar. My goodness, thank you, Madam Chair, for 
those kind words. I will have to work overtime to live up to 
them.
    Congratulations on your second Subcommittee hearing on the 
subject of rail issues. Again, I welcome Mr. Shuster to the 
Subcommittee and a new assignment for him, the Chair of the 
Economic Development Subcommittee in the previous Congress, and 
the former Chair of the Subcommittee, Mr. LaTourette, who 
devoted a great deal of time and energy to rail issues and 
whose leadership was much appreciated on both sides of the 
aisle.
    Madam Chair, you have worked diligently to master the 
issues of railroading and we are proceeding with a very 
vigorous schedule in all of the subcommittees of the Committee 
on Transportation and Infrastructure. This is our fourth 
hearing, and we have already had a markup of several water 
related bills. We will have more to come in the next few weeks. 
We have an agenda to report out and bring to the House floor 
before the President's day recess, at least half a dozen major 
issues, most of which are bipartisan items that carried over 
from the last Congress, and others are new issues.
    This proceeding on rail safety stems from nearly a dozen 
years ago when our Committee, in the reorganization that the 
Republican leadership of Congress undertook to redistribute 
committee responsibilities, and one of the best moves they made 
was to consolidate all transportation in the Committee on 
Transportation and Infrastructure, including rail, Coast Guard 
and others. When I took a look at rail safety and compared it 
to safety in the aviation sector, given adjustments for 
differences in modes, I was, to put it mildly, appalled and set 
about inquiring into conduct of safety in the railroad sector.
    The result of which was a comprehensive bill that I 
introduced, along with a number of co-sponsors in roughly 1995, 
1996, I think it was. There is a great deal, some progress has 
been made by the Federal Railroad Administration. FRA has 
implemented some of the recommendations by the National 
Transportation Safety Board. But FRA still has only 421 
inspectors, States have 160.
    But only 2 percent of railroad operations are inspected 
every year. Only 13 percent of the most serious rail grade 
crossing collisions were inspected from 2000 through 2004. In 
comparison to FAA, 93 percent of the general aviation accidents 
were investigated by the FAA. The Federal Railroad 
Administration has a long way to go to pick up the ball and be 
vigilant on rail safety.
    The RSAC that was established under Jolene Molitoris during 
her tenure at the Federal Railroad Administration was a 
splendid effort to bring management and labor together to work 
out issues.
    In the end, voluntary agreements are no substitute for 
vigorous enforcement of oversight responsibility. And as we 
have seen in the testimony today, as we have heard over many 
years, there are serious gaps and shortcomings, failure in rail 
safety that have to be addressed. Either this Federal Railroad 
Administration takes appropriate action through regulatory 
authority that it has or we will move legislation that makes 
those changes in law.
    Thank you, Madam Chair.
    Ms. Brown. Can we go back to the first film with the 
railroad crossing? Is it possible?
    Mr. Hamberger. Mr. Miller, the Chairwoman would like to see 
the film of the grade crossing accident.
    Ms. Brown. While he is doing that, what are the railroads 
doing to prevent fatigue? We have had a lot of discussion about 
it.
    Mr. Hamberger. Madam Chairwoman, we will be talking in 
great detail about that in two weeks. We are working very 
diligently to hopefully have some very specific 
recommendations, consistent with what the Chairman just said, 
for things that this Committee can do in the area of fatigue.
    Having said that, we anticipate working with labor, because 
what needs to be understood is that many of the issues 
surrounding fatigue are also part of the negotiated process 
between management and labor. But several of the railroads have 
instituted, for example, increased rest times between calls. We 
have instituted models to try to take a look at how long people 
should be off, how to guarantee certain days off, improving 
crew scheduling practices on a work district by work district 
basis, and working with the crew to make sure that they 
understand that when there is time off, there is a 
responsibility at the same time to try to get some rest during 
that time off.
    Ms. Brown. Did they find the tape? Because I wanted to ask 
a question about the rail crossing. They took it, OK.
    Well, we are going to stand in recess. We have three votes, 
one 15 minute vote and then I guess two other 5 minute votes. 
Then we will come back, I guess we should be back in about 30 
to 45 minutes. Members will have an opportunity to ask as many 
questions, we can have a couple of rounds.
    Mr. Hamberger. We will have that disk by the time you get 
back.
    Ms. Brown. Yes. So feel free to please, members, come back, 
because we want to have this question and answer period.
    Thank you.
    [Recess.]
    Ms. Brown. The Committee will come back to order. I am glad 
we were able to vote and get back early.
    On the film, Mr. Hamberger, I was trying to figure out 
whether or not it was railroad crossing.
    Mr. Hamberger. On the first one, there was a crossing gate. 
I think you can just, as we run the tape and you get a little 
bit closer, you can see there is a shadow there on the right 
side. You can't really see it on the left, but of course, if 
they have it on the one side of the track, it's going to be on 
the other.
    [Video shown.]
    Mr. Hamberger. Did you see it there on the right? If we can 
just back it up a touch, Mr. Miller.
    [Video replayed.]
    Mr. Hamberger. The second one did not have active warning 
lights.
    Ms. Brown. I think you said the second one also did not 
have a stop sign.
    Mr. Hamberger. That is correct. That requirement will soon 
be part of the MUTCD, which stands for the Manual of Uniform 
Traffic Control Devices. We did support the NTSB recommendation 
that there be a stop sign at the grade crossings where there 
are no gates and lights.
    Actually, they have left it up to the States to have either 
a stop sign or a yield sign. It looks like we are going to make 
another run at it here. If you look on the right side, right 
about there, you can see the gate is down on the right hand 
side.
    Ms. Brown. I see. And he just went around the gate.
    Mr. Hamberger. And there was a corresponding gate up on the 
left hand side. And if we could back it up, you will see there 
is a car in front of him, and he went around the car in front 
of him and around the gate. You see him going around.
    Ms. Brown. I guess that is what I was asking you, is the 
technology there that you can, we can make sure that you can't 
go around?
    Mr. Hamberger. The technology is there. Obviously it is a 
matter of resources, and that is why it is so important that 
this Committee fully funded the Section 130 program for the 
States to have more money to put into this area, and did not 
take the advice of the Administration, which is wanting to make 
that a block grant for safety.
    So the leadership of the Congress is very important there. 
As you know, the industry maintains all of those lights and 
gates around the Country. It is our responsibility and it is 
about $200 million to $250 million a year we spend on doing 
that. But it is a cooperative effort. The one in North 
Carolina, with Norfolk Southern and the State of North 
Carolina, to have a corridor that is basically sealed, so that 
the number of accidents there should drop dramatically there as 
it gets put in.
    Ms. Brown. OK. I have lots of other questions, but I am 
going to go to Mr. Shuster.
    Mr. Shuster. Thank you very much.
    I think that all of us can agree on the importance of 
safety and security. These are serious issues and quite 
frankly, complicated. As the new Ranking Member on this 
Committee, I am trying to get my arms around them. So I have 
been meeting with a number of people throughout the industry 
and if we haven't, if my staff has not called you, I would 
encourage you to call our office. Because I really want to sit 
down and again, try to understand all sides of the issues. I 
know that there are different views, and that I need to hear 
them and understand them to be able to make decisions and to be 
able to have vigorous oversight on this Subcommittee.
    The statistics that I have seen, whether they have been 
industry, whether they have been Government or independent 
studies, demonstrate to me that rail safety has gotten better 
over the last couple of years. And as I think Mr. Hamberger 
said, this may be the safest year in rail history.
    So Mr. Wytkind, when I hear your testimony, you made some 
claims, which again I am certain you feel strongly about. But 
for me, I need to see the facts. You and I talked earlier 
during the break. I hope you will come by the office and we can 
sit down and discuss this more at length. I am sure we are 
going to be cut short here today.
    But I wonder if you might comment on that. Because again, 
for me, all the charts that I have seen show important strides 
in a positive way, not perfect. We want to move towards 
becoming even more safe.
    Mr. Wytkind. I would be happy to come in and talk to you, 
and I would probably bring with me some of the rail safety 
experts that work within some of the railroad unions, who have 
been living and breathing these issues for their whole careers.
    But I won't get into the statistics, because statistics are 
however you present them. I think the Association of American 
Railroads is good at presenting the statistics in a way that 
reflect well on its safety operations.
    Mr. Shuster. But I would be curious to see your statistics.
    Mr. Wytkind. Well, I don't keep statistics. I just analyze 
what is happening through a worker's perspective. I would say 
to you the following: I have been representing transportation 
workers on Capitol Hill for about 16 years. I have been before 
this Committee and many others, talking about rail safety and 
security on several occasions.
    When I start talking about the lack of enforcement and the 
lack of robust fines to, as I said, make sure that the 
punishment meets the crime, I think that is borne out by stats. 
When you have as many safety violations as you have around the 
Country on an annual basis and the average fine is $30, that is 
the charge of dinner for two at a diner for the average 
violation, which is hardly a deterrent to unsafe operations.
    When I talk about the whistleblower issue, the reason I 
brought this issue again to the Committee is because there has 
been a culture of harassment and intimidation in the railroad 
industry way before, obviously, you began your service in the 
U.S. Congress. It has been documented on several occasions, 
including by investigations into the issue by the Federal 
Railroad Administration, where it did cite that issue as a big 
concern as they looked into the labor management issues. All we 
are saying is, if you are going to pass the financial services 
legislation that you all passed in the previous Congress to 
deal with a lot of the problems with financial services, 
whistleblower protections were put in that bill. We would argue 
that for the same reason that they were put in that bill, you 
should put strong whistleblower protections to stop harassment 
and intimidation in any rail safety bill.
    So I think there are a number of issues that need to be 
dealt with. They are really not just about statistics or the 
way in which statistics are presented. They are about a culture 
in an industry that we believe is unsafe and that workers and 
the public are suffering because of that.
    Mr. Shuster. But again, in a way, I think you can make 
informed decisions looking at the numbers. You say there are a 
number of, that is, you know, what is a number? The number to 
you may be 100 and that may be a lot. But if there are 
thousands or millions, then that is a very small number. Again, 
I would like you to come by and let's sit down and let's talk 
about this.
    But for me, I have to see the measurements. If you do not 
have the measurements, I think you make decisions, just like on 
Sarbanes-Oxley, we passed it and probably one of the worst 
votes I have ever made in hindsight, because it has caused so 
much damage to many of our small businesses that can't comply 
with the costs. They are so huge.
    Mr. Wytkind. The point I am making is you put 
whistleblower, and that is not the problem you are referring 
to. There are a lot of other problems. I don't think 
whistleblower protection has been a subject of criticism in 
that piece of legislation.
    Mr. Shuster. And I do not want to debate on whistleblower, 
but I understand there is a whistleblower protection in the law 
now.
    Mr. Wytkind. It is inadequate.
    Mr. Shuster. OK. You and I can sit down and we can talk 
about that.
    Mr. Wytkind. I am happy to.
    Mr. Shuster. OK. Thank you.
    In the regulatory climate that seems to be changing out 
here in the rail industry, you have cities wanting to reroute 
or even stop hazmat materials from going through and re-
regulate shipping rates, TSAs, looking at new regulations, and 
just the cost and the complexity that we are talking about, 
changing on shipping these hazardous materials. My concern is 
what kind of impact is that going to have on the rail industry, 
and are we going to stop or at least decrease significantly 
private capital coming into the rail industry which is, I 
think, extremely important that we have an understanding of 
what is going to happen to that private capital coming into the 
industry.
    Mr. Hamberger, Mr. Timmons, anybody else that wants to 
comment on it, I certainly would appreciate it.
    Mr. Timmons. The hazmat issue is a serious predicament for 
the small railroad industry. In the month of January, we had 
126 of our railroads move hazardous materials. If you look at 
the predicament that they face in that context, and the 
potential implications for communities if we start to curtail 
the movement of chlorine, for example, it becomes a very, very 
difficult problem for communities.
    On the reverse of that, the railroads are required to carry 
this material as common carriers. In the small railroad 
context, they can't charge enough to cover the cost of 
insurance that would adequately protect them from a derailment 
resulting in a spill or a breach. So we are confronted with 
risking the small railroad company and not having any good 
course of relief.
    We have to carry it, we can't buy the insurance to protect 
ourselves from it, and therefore we risk the company. Now, we 
have had some small issues with hazmat. I will cite to you one 
small anecdote that occurred within the last month or so where 
we had, in a yard, the rear trucks on a chlorine car derail. 
The car is upright, it is the middle of the morning. Normally 
the car would be re-righted.
    That resulted in an over-reaction, where 75 fire engines, 
all businesses and 40 square blocks were evacuated. The 
Holtcher Company came in and re-railed the car at 3:00 o'clock 
in the morning, while large numbers of apartment dwellers and 
home dwellers stood in the outside freezing temperatures. The 
litigation that will go on for that small railroad will be 
endless, and the railroad owner says he will never again carry 
another bit of hazardous material. He can't afford to, on the 
bring of going out of business because of that issue.
    And this is just the trucks coming off the track, going at 
2 miles an hour, which is a very common predicament in the 
railroad industry. But the over-reaction, and the 
Transportation Security Administration taking charge of the 
site itself, trying to determine whether this was a terrorist 
act, had an enormous impact on the community and on the small 
railroad.
    So we think we need some kind of relief in this regard. The 
common carrier dimension is important, and the movement of 
hazardous materials by rail is clearly the safest way to move 
the materials. But to put the companies at risk and the 
communities suffer as a consequence is unreasonable. Something 
has to be done. I would strongly urge serious review of this 
problem.
    The railroads, the small railroads anyway, their revenue 
generation is very, very modest in this regard. So the business 
of rather give up the material or the product, moving the 
product than risk my railroad, is a common theme in the small 
railroad world.
    Mr. Shuster. Would anybody else care to comment?
    Mr. Hamberger. If I might, the issue is no less of a 
concern for the larger railroads. While the larger railroads 
can of course get more insurance, there is a limit on the 
amount of insurance they can get. And to put all this in 
perspective, last year there were about 33 million carloads of 
traffic moving around the United States. Of those, 100,000, 
less than 1 percent, about three-tenths of 1 percent, were 
toxic by inhalation. Anhydrous ammonia and chlorine were about 
80,000 and the rest were spread around some other commodities.
    So 100,000, three-tenths of 1 percent, it drives about 80 
percent of the insurance costs, not only for the short lines 
but also for the larger Class I railroads; it could be a bet 
the company situation. Last June, there was a hearing in this 
Subcommittee where we tried to point out the issues with the 
common carrier obligation. This stuff right now has to move; 
chlorine is used to purify much of the Nation's water supply. 
So it has to get there. We have a common carrier obligation to 
move it.
    But yet we are stuck with a bet the company situation. We 
are stuck with the cost of the insurance that we can get that 
is out there. And at least one of the Class I railroads and 
several others, I think, has said this publicly. Others believe 
it: that were it not for the common carrier obligation, they 
would exit the business. With all due respect to my friends in 
the trucking industry, I have noted that many of them are 
exiting the business of moving hazardous materials because of 
the liability issue. They apparently do not have that same 
requirement.
    At that hearing, Congresswoman Eleanor Holmes Norton said 
that the rail industry is, in her words, in an untenable 
position, forced to carry it, can't get relief at the top end 
for liability. So we are working the ASLRRA in trying to come 
up with some sort of approach, a Price-Anderson kind of 
approach, the same situation that was faced by the nuclear 
industry many years ago, to see whether or not there is a way 
we can continue to move it. We are proud of our record in 
moving it, with 99.997 percent getting from origin to 
destination without a release.
    But as we have heard and as we have seen, that .003 percent 
can be very tragic. So we want to work with the Congress, and 
we do not yet have a proposal put together, but we are working 
to try to come up with some sort of an approach that would put 
a cap on liability, so that we can continue to move it. If that 
does not occur, the industry, at least the AAR, is going to 
have to take a look and say, should we try to get out of this 
common carrier obligation. That is where we are. It is a huge 
concern, a major concern, because there is a limit on the 
amount of insurance that you can get.
    Mr. Shuster. Does anyone else care to comment on that?
    Mr. Wytkind. I might add a comment, if you don't mind, 
Congressman.
    Mr. Shuster. Sure.
    Mr. Wytkind. We are not in a position to endorse what has 
been suggested here today. But I will say that notwithstanding 
the fact that the Committee may address these common carrier 
obligations that my colleagues here are addressing, I don't 
think you can look at this issue as this kind of issue in a 
vacuum. If we are going to deal with that type of problem, you 
can't deal with that problem if you are also not going to deal 
with all the myriad issues that have made this industry, we 
believe, unsafe, and that I think contributes to not only the 
perception that the railroads are unsafe but the reality that 
they are unsafe when they have these horrific accidents.
    So I would argue that before you fix that problem, you also 
need to look at what problems you also need to fix, which is 
how do you make this industry safer, so that you don't have 
fatigued workers who contribute to unsafe operations, and so 
that you don't have these horrific accidents in our rail 
system. I think that should be the focus of this legislation. 
For that reason, I don't think we could endorse something like 
that until we have a comprehensive addressing of these kinds of 
issues.
    Mr. Shuster. Do you do it in conjunction?
    Mr. Wytkind. It is not a question of conjunction. I think 
that you can't look at that issue in a vacuum. It is easy to 
come to Congress and ask for relief in this particular area, 
but Mr. Hamberger is not asking for action in a number of other 
area that we al know need action by the U.S. Congress. I think 
that that would be a singular fix of his members' problems, but 
it wouldn't fix the underlying rail safety issues that I 
believe contribute to the problem.
    Mr. Shuster. The Chairwoman is giving me the hook.
    Ms. Brown. Yes, listen, you all are moving a lot faster 
than I am. I do understand that we have a lot of issues, and we 
want to be fair with everyone as we move forward. There are 
many, many issues that we have to deal with.
    I just want to say, before I go to the next person, that 
the situation in the industry is not as bleak as it sounds 
here. Of course, I can bring out Mr. Oberstar to give you the 
history of the industry, and the history of how we even 
separated the railroad industry and how we developed these 
different railroad lines. The last time I went to the railroad 
conference, that we are not having this year, we brought in the 
people from Wall Street. I can bring them here and talk about 
how in the black we are right now.
    So we want to be fair, and we are going to move forward. 
But we want to be fair moving forward together.
    Mr. Rodzwicz. Madam Chairwoman, may I add a comment to Mr. 
Shuster's question?
    Ms. Brown. Yes, sir.
    Mr. Rodzwicz. I am not sure there is an answer to that 
question that would satisfy everyone. In fact, the question may 
beget actually more questions. For example, worker 
reallocation. We don't have people that are qualified on every 
area of track where these hazardous materials may run. So you 
would probably eventually have to reallocate crew members.
    I am somewhat familiar, as I told you earlier, with your 
particular district. In many instances, towns grew up around 
railroads. Our infrastructure, track capacity, is at or near 
maximum. What you may end up doing is actually centralizing 
this hazardous material where it becomes even more dangerous. 
These are different perspectives and questions I ask myself, 
that people perhaps with TSA or whomever, perhaps this body 
will have to come up with the solutions. Tracks only run in 
certain locations right now. So you may not be always able to 
reroute hazardous material.
    So I just think that is a process where I do not know if 
there is a right answer. Thank you.
    Ms. Brown. Well, we are going to go down that track 
together.
    [Laughter.]
    Ms. Napolitano. Thank you, Madam Chair, for the hearing. I 
have a lot of questions formulated, I just won't have the time 
to ask them all. But I have certain areas that are very key in 
my urban area that have been a bone of contention for I would 
say about 20 some odd years. That goes back to my city council 
days.
    Part of it is that the railroad had been less than, the 
railroad representatives had been less than helpful when the 
cities were having concerns and wanted to meet with them. That 
aside, at the current time we were working on the Alameda 
Corridor East, which is that stretch from Los Angeles into the 
Inland Empire and on to delivery for the eastern area.
    Part of what we found out in some of the briefings that we 
had with the railroad and with other individuals, including 
State officials, was the life of the rail and how does the 
railroad determine when it is time to replace it. My 
understanding from some of the briefings that we had from 
railroad officials were that the steel they were using had been 
not quite up to par, so they quit using it. That was something 
that was of concern, because of how much of that had been laid 
and replaced or not replaced.
    Well, if that gives, if there is stress, and there is 
ability for even when it is joined to another rail, whether it 
is welded or whether it is a joint bar issue or whatever, those 
are issues that I am very concerned about, whether or not the 
research has been done, to determine whether or not the rail 
itself has been adequately upgraded or replaced. And then when 
we go to the insulated joint bars, it is whether or not the 
research has been completed. Because there was going to be some 
research given to a university, and I can't remember off-hand 
what it was, I would have to look it up, whether or not that 
has been successful or what has come of it. That is question 
number two.
    Then we go on to the grade separations. Is the railroad, 
any of the railroads, assisting the communities in being able 
to support financially the building of those grade separations? 
And how much are they working with the cities and the States to 
be able to ameliorate the impact it has on the community, 
especially in heavily populated areas like ours?
    And if there has been an investment, and as we hear that 
the biggest number of accidents are at the junctions, at the 
crossings, so whether or not there has been information that 
would determine whether or not it is a vehicle problem, is it 
not enough signage, it is updated rail instrumentation to be 
able to warn people, what is it?
    Then we go to the issue of training of railroad personnel. 
Because at the time when I began getting involved in this 
issue, there had not been, as I mentioned before, there had 
been retirement, and this came to us from the railroad 
officials, of many people after 9/11, and they had not been 
replaced. So they were putting people on and it would take 
what, two years, for training? Minimum? Something to that 
effect. That is what we were informed. These were at hearings 
with the board of supervisors in L.A. County, along with 
Congressman Linda Sanchez.
    And what that told us is we may be having individuals who 
are not fully trained manning trains that might not have enough 
experience to be able to deal with issues that come up that 
might involve an accident. So those are some of the issues.
    And the third one would be the impact that, and thank God 
we are having one of the local railroads replace some of the 
wooden ties with cement ties, but they are closing off a mile 
and a half, which means that now the L.A. County fire 
department is having to place emergency centers on both sides 
of those closures to deal with any kind of accidents, whether 
it is railroad or whether it is automobiles. People are trying 
to make turns into the previously opened crossings.
    And it is not an inexpensive thing for them, and there is 
no other way of being able to reimburse. Whether or not at the 
time this is done the railroads are considering working with 
the communities to be able to address how they can cut down, 
whether it is the extent, or the length of the changes, or 
whether it is something that they can work with the cities and 
try to work out beforehand. Take your choice.
    Mr. Hamberger. I am going to assume that was for me. Thank 
you very much, Congresswoman Napolitano. I mentioned right 
before you came in that one of the things that we are spending 
a lot of time and energy and resources on is research at a 
place called the Transportation Technology Center, which is 
located in Pueblo, Colorado. It is a 54 square mile research 
facility that the AAR operates under contract to the FRA.
    We have been running it now for about 20 years. Last year, 
under the leadership of then-Chairman LaTourette, Chairman 
LaTourette and now Chairwoman Brown came out twice to see a 
demonstration of the technologies that we are trying to develop 
out there. They include wheel profile monitors that use lasers 
and optics to capture the images of the wheels as the train 
goes by, acoustic detector systems that offer predictive safety 
tools, such that when a car goes by whether or not the bearings 
need to be changed and get that car out of service before it 
causes an accident.
    Then rail defect detector cars, which I think goes to 
exactly what you were talking about yesterday, which uses laser 
technology to try to identify internal flaws in the rail and in 
the joint bars.
    Ms. Napolitano. It is not effective, sir. I am sorry, but 
we were told it is not effective. There is no way they can look 
inside that insulation.
    Mr. Hamberger. As I say, they are working on that. We have 
a couple of machines that are being tested out there. I 
understand one of those is now actually in service out on the 
road. So we are trying to move to address that very specific 
issue that you raised a concern about.
    We are also working on new metallurgical, you mentioned the 
kind of steel, something called banitic steel, which is a new 
kind of steel alloy that would last longer and not wear out as 
soon. The interface between the wheel and the rail is a very 
important aspect of safety, and in fact, TTCI was hired by the 
London Underground after they had several accidents, to go over 
and investigate and give advice as to how to improve safety, 
because of that interface between the wheel and the rail.
    So it is something that we take very seriously. We are 
spending on technology, and Madam Chairwoman, you have a 
standing invitation to come back. We do hazmat training out 
there as well, and we would love to have the Committee come 
back, for all the new members who have not had a chance to see 
that technology.
    You mentioned grade crossings. I mentioned again in my 
statement that 94 percent, according to the FRA report to 
Congress, 94 percent of all the grade crossing accidents are a 
result of driver error or driver misjudgment. But each of the 
Class I railroads has a program in place to work with 
communities to try to close grade crossings and to try to help 
provide active warning devices at those that are open. It is a 
fact, of course, that only a closed grade crossing can be 
totally safe. So where there are grade crossings, then you want 
to have the active warning devices, and as I was discussing 
with the Chairwoman, there are technologies out there that can 
actually cut down on accidents, like median barriers, for 
example, that pop up when a train goes by.
    Ms. Napolitano. I am sorry, sir, but that does not stop 
pedestrians from trying to beat the train. We have had several 
accidents where children go across because there are no grade 
separations.
    Mr. Hamberger. You are correct, it is the number one issue 
in safety, in our opinion, and that is to try to get people to 
understand through Operation Lifesaver that it takes a mile for 
a train to stop, and just try to educate them.
    Ms. Napolitano. Operation Lifesaver, sir, they started 
trying to implement it in some of the grammar schools and 
middle schools close to where the accidents had happened. And 
they were volunteers, they never went back. So what good is it?
    Mr. Hamberger. It is a volunteer program. The AAR sponsors 
it. Individual railroads sponsor it. Congress and the FRA give 
them some resources. The program is there to try to get the 
word out. It is an educational effort.
    Your next issue was training. Mr. Wytkind and I disagree on 
the level of training that employees receive. I know that the 
Chairwoman did have the opportunity to make a trip to about a 
$50 million new facility in Atlanta that one of our members has 
for training. I will again invite the Committee to come down 
there and see the kind of training that does occur with respect 
to engineers. The training program has to be developed and 
submitted to the FRA for review. We believe that again, the 
proof is in the numbers. This is the safest year on record.
    With respect to security training, the security training 
program we developed last year with the support and actually 
the leadership of Rutgers University, the National 
Transportation Institute at Rutgers. That program was submitted 
to the Department of Transportation and the Department of 
Homeland Security.
    And the rulemaking Mr. Shuster is referring to that the 
Department of Transportation put out in December, the 
Department opined in its rulemaking that the AAR-sponsored 
training program met their security training requirements. We 
do have a situation in place where every member of every Class 
I will receive that training. So we think that we have 
addressed the training issue.
    I will now yield to my friend, Mr. Wytkind.
    Ms. Napolitano. Is this offered to all railroad employees?
    Mr. Hamberger. That is correct.
    Ms. Napolitano. What is the number of hours they must put 
into training?
    Mr. Hamberger. The number of hours in training depends on 
the craft which the person is involved in. I will get you some 
information on the record about that.
    Ms. Napolitano. I would appreciate it, sir.
    Mr. Wytkind. Yes, if I could, thank you for the question. I 
can't address all the issues, obviously, you are dealing with 
in your district. But on the issue of training, it is 
absolutely absurd for the railroad industry to claim that its 
workers are being trained to the level that they should be. To 
have the Department of Homeland Security claim that it meets 
their security requirements, there is a little problem with 
that: they don't have any. So to say that it meets a 
requirement, there are no security training requirements. We 
have been trying to get that enacted into law----
    Mr. Hamberger. Department of Transportation.
    Mr. Wytkind.--for quite some time and have failed to do so, 
although I have a lot of confidence that in this Congress, the 
mandate is finally going to exist. Until the mandate exists, 
the workers are not going to be trained.
    I would like to know who the workers are that Mr. Hamberger 
is referring to. I on my own have periodic briefings with rank 
and file representatives from around the Country, both on the 
passenger rail and on the freight rail side. Every single call 
I have had with these groups of workers, the universal message 
is that training is grossly inadequate, it is typically a 
ridiculous, low-budget video, and they have no idea what to do 
in this post-9/11 world that we are living in. They do not have 
the knowledge and the training and the expertise, hands-on 
expertise that you need to know to be able to respond to and 
deal with security breaches and, God forbid, actual attacks on 
our rail system.
    So I am sure the curriculum is real nice. The NTI does some 
good work. I have seen some of it. But unless it touches the 
workers at the rank and file level and they get real, classroom 
style training on the job, not to take home to do some 
interactive CD-ROM, they will then not be trained.
    Ms. Napolitano. Thank you, Madam Chair.
    Ms. Brown. You are welcome. Let me just say, this hearing 
is a different kind of safety. And we will have a hearing on 
homeland security and what we are doing in the industry post-9/
11. So we had to separate it a little bit.
    I did go for the training, and one of the things, as we 
worked through the issues, for example, the train has to have 
so much time to stop. We have to educate the public about going 
around the safety bars, because clearly, the train cannot--I 
crashed the truck in my training. I failed.
    So we have to make sure that--this is going to be a 
homework assignment for all of the members. I am going to make 
sure that they all go through the simulators and they 
experience it. Because clearly, they need to know that you 
cannot, if you are in a little car, and you go up against a 
train, you are going to lose. I am just very happy that the 
former Chair of the Committee has joined the Committee and is 
going to be here to provide the expertise and the knowledge to 
help us work through this reauthorization. Mr. LaTourette.
    Mr. LaTourette. Thank you very much, Chairwoman Brown.
    Before I begin, now that the new majority has stopped these 
pernicious private travel trips that have obviously corrupted 
us----
    [Laughter.]
    Mr. LaTourette.--I would hope that the gentlelady would 
consider a Congressionally sponsored trip out to TCC. I found 
it to be illuminating, and I think the new members of the 
Subcommittee would as well. From my observation, they are doing 
pretty good work.
    Ms. Brown. I have already approached them, and I am going 
to write a letter to the Committee and ask for a waiver. 
Because it was one trip I took every year, because it was 
educational and informative. It was an opportunity to talk to 
the Senators and talk to the people in the industry. And one of 
the things that I think is very important is to educate people 
on issues that we are going to be dealing with as we move 
forward. It was very educational in the industry. I want my 
constituents to know it. It is what we are supposed to be 
doing.
    Mr. LaTourette. I couldn't agree with the Chairwoman more, 
and I hope that you are successful. If you need any help on our 
side, I am happy to supply it.
    I want to thank you all for coming. Mr. Hamberger, I was 
not in the room for your testimony, but I read it. I was in the 
room for most everybody else's.
    Just referring back to yesterday first, Mr. Hamberger, I 
listened to the new Inspector General. I would hope that your 
membership would take to heart his observations about not 
reporting. I think we had a little dust-up about what reporting 
was, and is it a telephone call, is it in the mail. But if the 
rule is that serious collisions at at-grade crossings need to 
be reported, they should be reported. I know you agree with me, 
and I would hope you are going to do whatever it takes to make 
sure that your membership complies, one.
    And two, my view is if they don't, they should pay a fine. 
If it is a rule, you should follow it. I assume you don't 
disagree with me.
    Mr. Hamberger. I learned when you were Chairman it was not 
a good idea to disagree with you.
    [Laughter.]
    Mr. Hamberger. But if I could just illuminate one second, 
and I would be remiss if I did not say for the record that we 
appreciate the leadership you did provide when you were Chair 
of the Committee in the last Congress.
    What came out under questioning of Mr. Scovel was that in 
2006, of close to 3,000 accidents, 12 were mis-reported. And in 
his own report that he issued in an audit in 2005, his 
predecessor found that the reason for the mis-reporting in that 
time period was because of a change in the criteria for the 
call into the NRC versus the written report to the FRA. We take 
it very seriously and you are of course correct, when there is 
a violation, there should be a penalty. But I would say that 12 
mis-reportings out of almost 3,000 is hardly a crisis.
    Mr. LaTourette. And I was glad to talk to the Inspector 
General about that. The second part of my remark is not a 
question to you, but his facts and figures differed from the 
ones you have testified to today. I heard what Mr. Wytkind said 
to Mr. Shuster about statistics, but there is a reason we do 
keep them. So I do not think that either party is entitled to 
their own set of statistics. We should know how many accidents 
there were and how many were reported, how many were not 
reported. My position continues to be, I do not think 12 is a 
big number, but they should be reported. If they are not 
reported and that is the rule, you should follow the rule, and 
if you do not follow the rule, you should be fined.
    Ms. Van Dyck, I want to get to you for just a second, 
because Federal preemption is a huge issue that we discussed 
not only in this Committee, but on every other Committee that I 
serve on. A great deal of tension between State legislatures, 
city councils and the United States Congress. I happen to think 
that there are some areas where the Federal Government needs to 
act and preempt the field. I think transportation in many 
regards is one of them.
    Just so I am clear, you are not arguing against preemption, 
you are arguing against the way it is being applied currently 
in the courts?
    Ms. Van Dyck. Preemption, you understand my basic premise, 
I believe.
    Mr. LaTourette. Sure.
    Ms. Van Dyck. I do not disagree with you that there are 
some areas that require uniform handling, and transportation is 
undoubtedly one of them. I don't disagree with you at all. What 
I am talking about is, the way this Act was written addresses 
that precisely, in the preemption section itself. Federal law, 
where there are standards that have been promulgated, and the 
FRA has promulgated many, many of them, those are the standards 
that should be followed. And States cannot have contrary 
standards. They can't have standards in conflict with those. 
And I have no problem with that.
    Mr. LaTourette. Good.
    Ms. Van Dyck. My problem is, when courts are interpreting 
preemption to mean that if a standard exists, or the existence 
of a standard eliminates a common law right of action, if what 
you are saying is the standard was not met, that is not OK.
    Mr. LaTourette. Right. I do not disagree with you, I just 
wanted to be clear on your position. Because some of the 
tension we have is that some of the States want to go in and 
have 50 different standards. That is a difficult thing for a 
railroad, it is a difficult thing for a bank. So as long as 
there is a regulation that is fair and people are not cheated 
out of their remedy, whatever that remedy is, I think that we 
are OK.
    Just as an aside, I thought one of the most brilliant 
things that I ever saw was when the American Trial Lawyers 
Association changed their name to the American Association of 
Justice.
    [Laughter.]
    Mr. LaTourette. If you look at public opinion polls, the 
only people that score lower than attorneys and trial lawyers 
are members of Congress.
    [Laughter.]
    Mr. LaTourette. So after the last election, I am going to 
suggest to the Republican Party that we change our name to be 
like the Party for Truth or something. I really thought that 
was a great move.
    [Laughter.]
    Mr. LaTourette. Madam Chairwoman, we are going to have 
another round? I want to talk about fatigue.
    Ms. Brown. Go ahead.
    Mr. LaTourette. We talked about grade crossings earlier, 
and Mr. Rodzwicz, I agree with you, most railroads were there 
before the towns were there. And a lot of the difficulties we 
have, if you have ever been in the cab of a train with your 
membership, it is like driving down a tunnel. The trees are on 
all sides, I think it is a very, very scary thing. I don't have 
any sympathy for the nuts who decide to beat the train, I don't 
have any sympathy for trespassers.
    But I do think that the reason most of us support the 
Section 130 program is that a lot of these intersections are 
poorly designed. You can't get the cities--because they don't 
have the cash to do it, the railroads really are not in a 
position to build a grade separation at every at-grade crossing 
in this Country. So I would like to see us, in the next highway 
bill, make the Section 130 program more robust than it is.
    But on the issue of fatigue, I would hope that both you and 
Mr. Wytkind, I think that we need to have a discussion about 
limbo time. I think that is a valid observation. I think we 
have to have a discussion about crew size and staffing.
    But one of the things that I have noticed in your 
contracts, and maybe you can comment on it, you used to have 
provisions in your collective bargaining agreements dealing 
with mileage. What I hear when you talk about fatigue, when you 
talk about people working too long, when you talk about limbo 
time, is that you have some of the tension that the airline 
pilots have. And the airline pilots, there was just a big news 
story the other day that the guys who are turning 60 want to 
keep flying until they are 65. The young guys that are first 
officers want the old guys to retire so that they can become 
captains and fly the planes.
    What I hear from time to time is that you have some more 
senior engineers that are mileage hogs, that love driving the 
train from the east coast to the west coast, because it pays 
better and they get more time, things of that nature. So if we, 
in exploring safety and the issue of fatigue, and we did have a 
hearing last year on circadian rhythms and stuff that I don't 
even understand, but if we look at limbo time, if we look at 
hours of service, if we look at staffing levels, don't you 
think that some of these things are better negotiated in 
collective bargaining agreements? And why, if I am right, has 
the mileage thing been taken off the table in your collective 
bargaining agreements?
    Mr. Rodzwicz. First of all, I hope no one is hoping that I 
retire. It is not going to happen.
    [Laughter.]
    Mr. LaTourette. Listen, when I get into the plane, I like 
the pilot to have a little snow on the roof, because I feel 
better.
    [Laughter.]
    Mr. Rodzwicz. I want to answer your question, but I would 
take the snow on the roof right now versus what I have.
    [Laughter.]
    Mr. Rodzwicz. There are collective bargaining agreements in 
place that discuss time off. And they have been there for a 
long time. Unfortunately, for one reason or another, they don't 
occur. But we have other ideas that we are ready to present. We 
would like to see, for example, train scheduling. That would 
tell the operating crews pretty much when they are going to 
work and allow them to get proper rest. We would like to see 
the Hirsch model, that has been validated by FRA, we would like 
to explore that possibility.
    The best one that we have presented to several agencies is 
called employee empowerment. What that means is, who knows 
better than me if I am fatigued and I can't go to work? 
Unfortunately, because of understaffing, when one of our 
members or members in other unions in the operating crafts 
calls up and say, I would like to mark off, you can't, because 
we need you. Well, I am fatigued. Are you refusing to perform 
service?
    But we are willing to explore different alternatives to 
discuss finding, hopefully, some type of solution to fatigue. 
Because it is preeminent in our industry.
    Mr. LaTourette. And I am, too. I tell you that the question 
that deals with mileage, I would hope as we explore that, which 
I know the Chairwoman will, that the issue of mileage be 
resubmitted.
    The other thing that I would ask you to think about, I 
visited the CSX yard in Cleveland, Ohio, just outside my 
district. And the crafts that work in the yard complain that 
the hours of service regulations, which are important on some 
of the operating crafts that we are talking about, really 
hamper them to have the ability, if they want to, and again, 
you go to employee empowerment, that if they want to come in 
and work additional hours, if they want to work overtime and 
things like that, that some of our hours of service stuff gets 
in the way. I would hope that we would look at perhaps the 
difference between those men and women that are out driving the 
trains and repairing the trains and traveling great distances 
to repair the trains and compare those to the guys who get up 
just like everybody else in Cleveland with their lunch box, go 
to work and come back home.
    So I think if everybody is willing to put everything on the 
table, maybe we can get this thing done.
    Mr. Wytkind, did you want to say something?
    Mr. Wytkind. Yes, just one, thank you, Mr. LaTourette. 
Thank you for your engagement on this and all the other issues 
that we work on.
    I think that having a reasonable discussion about all the 
issues is the way this debate ought to occur anyway. And having 
a discussion about what the real rank and file worker needs and 
what he or she is experiencing in the practical world of 
working in the industry I think is obviously a relevant issue 
to the discussion.
    But one of the examples I gave in my testimony was the 
fact, and I spoke a little bit to Mr. Hamberger about this 
during the votes, I think there are some issues here that we 
might be able to find some common ground on. There is no one, I 
can't believe that the executives that sits on his board of 
directors think that there should ever be many scenarios where 
workers are working 18 to 20 hours out of 24 hours. If that 
worker said, well, I need the overtime, at some point, that is 
just too bad. You need to have standards in place that deal 
with the real safety consequences of having overworked 
employees.
    And so I think the gaming of the system, the way in which 
they schedule the employees, both in the operating and non-
operating crafts, the way in which the statute has been 
interpreted to mean, I talked to the signalman's union, which 
told me about, they call it this creeping effect of changing 
the interpretation of what the law says, it went from 12 hours 
to 16 hours. There is just chronic fatigue in the industry, and 
coupled with all the staffing shortages that clearly exist, 
because the AAR's own numbers show they need 80,000 employees 
in the next five years. The NTSB's numbers are actually higher. 
I think you have a pretty chronic issue and problem that needs 
to be addressed by Congress, or it is not going to be fixed.
    Mr. LaTourette. I couldn't agree with you more. Nobody wins 
with an exhausted work force. It creates a situation with the 
railroads where your membership gets pissed off, they are 
exposed to liability and Ms. Van Dyck has more business. That 
is the only thing that works out there.
    So I do think that there is a will to work this out. If 
there is any way I can be helpful, I look forward to it.
    Mr. Wytkind. Thank you.
    Ms. Brown. Thank you very much.
    As we move forward, this is a very interesting issue, 
because I have heard both sides. Yes, the men and women that 
work in the industry want to know that they have a certain 
schedule. But then when they have the certain schedule, when 
they can't get overtime, then they are concerned about their 
income.
    So as we work through it, we need to bring in some of those 
rank and files to get their input as we move forward. But I 
have one question, then I will go to the next person.
    Mr. Rodzwicz, you mentioned something about sanitation two 
or three times. Can you tell us a little bit more about that? 
Because you know, we have had some of the same problems with 
the cruise industry and they had to address it. Can you expand 
on that just a little bit more?
    Mr. Rodzwicz. I can. It is really a maintenance of way 
situation. Certainly they are going to work with human waste 
sitting in between the six foot of the tracks. I can tell you 
as a locomotive engineer that on I do not know how many 
different occasions I have gotten on an engine and I was 
actually afraid to use the facility, because of its filth. We 
have still some railroads, and it is probably an isolated 
situation, where we have engineers using bags to do their 
business, and then throwing the bag out the window.
    So the railroad tried to cure that, this particular 
railroad, by making you sign your name to the bag. And of 
course, our operating crews are pretty innovative. They started 
to sign other people's names to the bag and they still threw 
them out the windows.
    [Laughter.]
    Mr. Rodzwicz. But what I would like to do, Madam 
Chairwoman, is have a representative from BMWED respond to your 
question in writing, if I may, please.
    Ms. Brown. That would be good.
    Mr. Hamberger. If I might jump in, Madam Chairwoman, one of 
the things I have discovered in this job over the last close to 
nine years is that many an issue sticks around, and even when 
it has been resolved, we go back and talk about things the way 
they were a few years ago, as my colleague just did.
    That issue was resolved five years ago by a rulemaking at 
the Federal Railroad Administration. The practice the gentleman 
talked about does not occur. It is prohibited. And if he has 
examples of where that is occurring, I will go with him to the 
FRA to report it. Thank you.
    Ms. Brown. So you will be giving us something in writing 
also?
    Mr. Hamberger. Yes.
    Ms. Brown. One other question for you, sir. You cannot 
investigate an accident if it is not reported within 30 to 560 
days. The law says you must reopen the National Response Center 
within two hours. Is that accurate?
    Mr. Hamberger. That is correct, depending on the severity 
of the accident. And as we heard yesterday, in an audit of the 
2006 grade crossing accidents, Mr. Scovel testified that of 
those close to 3,000 accidents, only 12 were not reported 
properly.
    Ms. Brown. OK. Mr. Braley?
    Mr. Braley. Thank you, Mr. Chairwoman, and thank you, all 
the members of the panel, for spending time with us today. I 
represent the State of Iowa, which grew up with railways. The 
first railway bridge across the Mississippi River was built in 
my district in Davenport, Iowa, in the 1850's. A member of 
Congress who represented the State of Iowa, Dr. Grenville 
Dodge, was the chief engineer for the Union Pacific Railway, 
and served in Congress, and by all accounts spent most of his 
time here lobbying on behalf of the railway. So we understand 
the significance of rail transportation to the people of our 
State.
    But I am also very concerned about some of the statements 
that were made today, particularly because of the focus of this 
hearing, Madam Chairwoman, which is the Federal Rail Safety 
Program. And whenever there is a concern about how the economic 
impact of transporting particular cargo affects the issue of 
rail safety and someone suggests that the quick fix to that is 
caps on liability, the question that I have for two of our 
panelists, Mr. Hamberger and General Timmons, is can you 
explain to me how capping liability to people who are injured 
by ultra-hazardous chemicals transported by your railways 
promotes safety?
    Mr. Hamberger. Yes, I can, because it starts with the fact 
that we have an obligation, a common carrier obligation to move 
it. Now, the reason there is a Federal mandate, I presume, is 
because there was a judgment made that moving it by rail was 
safer than not moving it at all or safer than moving it by 
truck.
    So if that is the conclusion, then you want to continue to 
move it by rail. But what we have heard from General Timmons 
and what I am asserting is that the liability threat of these 
toxic by inhalation hazardous materials that we move, is such 
that it could put his members out of business, could put my 
members out of business. So if we want to continue to move it 
by rail, because that is good public policy, then it seems to 
me there needs to be something at the high end that says, this 
is not a bet the company kind of situation.
    The other alternative which I would posit is get rid of 
that Federal mandate that says we have to move it and then see 
what happens. Will it move? I don't know. And since a lot of it 
that moves is chlorine, about 35,000 car loads, which is used 
to purify the Nation's water supply in many cities, having it 
move is an important thing.
    So that I think is the conundrum or the policy judgment. As 
I said, Congresswoman Holmes Norton said it was a patently 
untenable position. I hope that helps.
    Mr. Timmons. Let me just add to that. As I reviewed the TIH 
movements for January that I alluded to a little earlier, 
somewhere in the vicinity of 85 of those movements were less 
than five cars a month. Very, very small railroads. Those are 
clearly chlorine cars servicing water treatment facilities in 
the smallest communities across the Country.
    If that individual has an accident and goes out of 
business, that community is in serious difficulty. Because we 
don't move chlorine by tank truck. It is moved by rail car.
    Mr. Braley. Can you cite for the Committee one example of 
any member that went out of business because of the risk you 
are talking about?
    Mr. Timmons. No, I cannot. However----
    Mr. Braley. Mr. Hamberger, can you?
    Mr. Hamberger. No, sir.
    Mr. Timmons. But I can tell you that the insurance 
predicament that the railroad industry faced over the last five 
years is such that we can no longer afford that insurance. And 
if we do have an accident, the litigation costs, damage costs, 
et cetera, are so exorbitant now, and they have not been 
heretofore, that those railroads will go out of business. There 
is just no question about it. You are making the small railroad 
carry it. He has no way to pay for the insurance to possibly 
cover it. So if there is an incident, he is out of business.
    Mr. Braley. So why do you put the burden of that risk on 
the injured bystander, as opposed to the people who are 
benefiting economically from using your status as a common 
carrier to require the transportation of that material?
    Mr. Timmons. What I would say is that this a collective 
problem that users, producers, transporters, insurers and 
potentially the Federal Government tries to deal with. I have 
no problem with those that are injured receiving just 
compensation, if it is the result of negligence by the small 
railroad. My problem is that you have told me to carry it, I 
can't foot the bill, and out of business we go. Communities and 
shippers alike across the Country will feel the impact. All I 
am looking for is some equation, some formula that helps us put 
together a solution to this problem.
    Mr. Braley. And spreads the risk in a way that is not so 
burdensome to your members, is that correct?
    Mr. Timmons. Absolutely.
    Mr. Braley. Madam Chairwoman, I just have a follow-up 
question for Ms. Van Dyck. One of the things you were talking 
about is the impact of these Federal preemptions, when they are 
applied in such a manner that completely deprives someone who 
is injured of a remedy, any remedy.
    And in your written statement, you talked about a point 
that I think is rarely mentioned on hearings on safety. You 
wrote, when no remedy is available to persons who have suffered 
severe injuries due to the negligence of another, those persons 
rely on taxpayer funded programs, such as Medicaid and Social 
Security disability payments. That burden then gets passed to 
on the American taxpayers when there is no private remedy 
available.
    Could you comment on the implications that that brings for 
your clients and the people you represent in seeking to have 
some means of putting their life back in order after being 
subject to this type of an injury?
    Ms. Van Dyck. Yes, I can. The whole purpose of Sate law 
remedies and State law courts is simply to make people whole, 
not to give them a windfall. And the course have been doing 
that forever. What happens when you have a derailment such as 
Minot, or crossing cases, I have one where the signals did not 
work and a family of five were catastrophically injured, with 
brain injured children who are going to need 24 hour attendant 
care the rest of their lives, when those kinds of things happen 
because of negligence, and that is what I am talking about, 
where a standard has not been met, where safety has not been 
maintained, how do those people pay for that?
    Well, if you can't go to the source of the negligence, if 
you can't hold that entity or person accountable, and our 
society always has done that with just about everybody, every 
industry, we hold them accountable for the damage they have 
caused. The life care plan for one little boy I represent, it 
is going to cost him between $8 million and $10 million by the 
railroad lawyers' calculations just to take care of him. His 
family can't pay for it.
    The insurance company, he had insurance through his father, 
but his father had to quit his job to take care of the boy. So 
now the family is on Government benefits. Well, Government is 
going to be paying that $8 million to $10 million. It is not 
that nobody is going to pay it.
    When the injured worker is the one that is hurt and has 
those kinds of bills, it is the employer's insurance whose 
premium is going up that is going to end up paying for that. 
Ultimately, you probably have a worker who isn't going to be 
able to stay in the job.
    So in the end, without the ability to place the burden 
where it belongs and have compensation for the injury cased 
only if there is liability, only if there is negligence, not 
over the board and across the board, if you don't have that, 
someone else is going to pay for it. And the someone else is 
going to be the family, the community, the employer and the 
taxpayers of this Country. That is why our law recognizes the 
State causes of action.
    Mr. Braley. Thank you.
    Ms. Brown. Mr. Walz.
    Mr. Walz. Thank you, Madam Chair, and thank you to all of 
you. I know it has been a long day and I appreciate your 
patience in staying with us. This is truly an important issue 
and it is one of the prime responsibilities I have as a 
Congressional representative, is safety, and in terms of 
railroad safety is why we are here today.
    I represent Minnesota district that is prepared and on the 
verge, and ironically enough, I am sorry I stepped out of this, 
but a call from Secretary of Transportation Peters concerning 
the largest railroad expansion in 100 years is going to go 
through my district. Large project upgrade, track expansion, 
things like that. No one is denying, again, in this hearing, 
the need for rail travel, the need for improving the ability to 
do that.
    My question again focuses on the safety of this. This 
railroad itself will run through the major city in my district, 
which is Rochester, Minnesota. It will run within a few hundred 
feet, feet, of the Mayo Clinic. This institution and the people 
in Rochester and others have expressed concern about safety.
    Now, what I have heard, and General Timmons, I looked and 
in reading your report and listening to you, the answer I get a 
lot of times is that safety is predicated on age of equipment, 
or in this case track, and that if you improve track, you are 
going to improve safety. I did also hear that we are showing an 
improvement for 2006, I would caution you that we are not done 
yet with 2006. I had a 30,000 gallon spill a few miles from my 
house in November that is not showing up yet. So that is yet to 
be seen, and we need to work that out.
    My question on this is, though, and I don't come from the 
railroad experience on this, I come from a couple of decades of 
working with heavy artillery. The question there, or I guess 
always our focus, our institutionalized focus, is on safety and 
accountability, of being able to show and certify how we are 
safe.
    My question that keeps coming up on the railroad, whenever 
I ask, is the increased incidents or the chance of a problem 
near the Mayo Clinic or anywhere along this line will decreased 
and be non-existent if we simply put the track in. I don't 
think I am a believer in that, per se, in that I believe safety 
comes from an institutionalized safety program with redundant 
features in there to make sure it doesn't happen. I worked on 
equipment that being in the National Guard was many generations 
outdated, yet our safety record was very good, because I can 
tell you it was accepted. There was no need for whistleblower 
protection in that everyone was trained and expected to stop 
any unsafe act at any time, no matter what.
    My question when it comes to the railroads is, I am 
wondering, when I am hearing representatives from the people 
working on the railroad and they are telling me they do not 
have enough training and they are not comfortable with that, 
that makes me concerned that the institutionalized safety 
program is not there, that the ability to certify, to pre-
operational checklist and all the things are not there. And I 
am concerned and think that the rail safety program should 
include those. I know that you are basing it more on 
performance based. I don't think you ever get to performance 
based unless you do those previous steps. So maybe I will just 
address that to both of you gentlemen.
    Mr. Timmons. Good observations. And let me start by talking 
about this business of rail replacement. Permit me just a 
moment or two of history here. The small railroad industry, as 
we know it today, over the last 25 years, is as a consequence 
of the Staggers Act where we were fortunate enough to acquire 
large portions, about 44,000 miles worth of railroad, over the 
last 25 years, that had not seen significant upgrades and 
maintenance, simply because it was economically unfeasible from 
the large railroad perspective. So our priority in that time is 
to ensure that the rail weight, gauge, tie, ballast, switches 
and all of the other infrastructure that we put this equipment 
on are suitable for the loads that they are required to carry.
    As we approached that problem, a $7 billion to $11 billion 
challenge, by the way, as we have approached that problem, the 
industry shifted from a 263,000 pound axle weight car to a 
286,000 pound axle weight car, which forced us to re-look at 
how we were going to address this problem. So from the small 
railroad perspective, it is extremely important to get the 
infrastructure up to the right standard. We can't interchange 
286,000 pound cars with the Class I railroads unless we have 
infrastructure and equipment that is suitable for the job.
    Now, having said that, the fact that we have rail in the 
ground today that is 90 pound rail, standard Class I railroad 
track today is probably anywhere from 128, 130, 142, somewhere 
in that range, we have railroads that are running with 90 pound 
rail, 110 pound rail. But the speeds on which we operate over 
that rail are slow enough that it is not so much of a problem 
if the right of way, the ties, tie plates, et cetera, are all 
in good shape.
    So from my perspective, in order to make sure that we can 
carry the loads, that the market force has driven us to a 
larger car, we have to make sure that the right of way is 
right. So that will help reduce derailments and other related 
problems as far as the track goes.
    Now, as you are probably aware, track is inspected every 
two weeks. So track inspectors are assigned to look at the 
railroad, physically look at the railroad. The small railroads 
also operate geometry cars.
    Now, contrary to the Congresswoman's observation, the 
geometry cars and some of the more sophisticated equipment, 
gives a very, very high probability of a solid rail bed and 
infrastructure set. So by the time you have run geometry cars 
over it and some of the analytical equipment that looks at the 
metallurgy pieces, you have a reasonably reliable rail. The 
small railroad is moving in that direction.
    We use Class I geometry equipment. Some of the States have 
their own geometry equipment. So we have spent a lot of time 
working that particular problem.
    As far as the training goes, I have to say that we are in 
arrears in the small railroad industry. We need a lot of work 
in that regard. We have to offset that, however. We have some 
very experienced railroaders who trickle down from the Class Is 
that bring an awful lot of experience. We also are contracted 
with the National Academy of Railway Sciences, Overland Park, 
Kansas, which has a national training school there, and through 
their internet system and through arrangements that we have 
made with them, we are focusing hard on the professionalism and 
competence of the small railroad folks.
    Plus we do our own internal inspections. My safety and 
operations inspector today is on a railroad analyzing that work 
and will give them a full report on their shortcomings and how 
they need to do this. This guy goes around on a continuous 
basis. We have contractors that do that also.
    I don't mean to belabor the point, and there is certainly a 
lot of room for us to improve. But the areas, the physical, the 
mechanical pieces, are important for us. The training piece is 
extremely important for us. That gets to the economics. If we 
can't interchange the cars with the Class Is because our 
infrastructure is weak, then we are going to go out of 
business. It is a compelling requirement.
    I know many of you have heard this story before, but I am 
compelled to tell you again. The two enormously important 
funding streams that have come from the Federal Government for 
the small railroad industry are the Railroad Rehabilitation and 
Infrastructure and Finance Program, which I am not sure we want 
to get into that right now. But that is a troubled program. And 
despite the good work that the FRA has done, the Office of 
Management and Budget has made that enormously difficult for us 
to capitalize on that program.
    Nonetheless, in nine years, we have gotten over $500 
million for that program to pump into our system. The other was 
the enormously important tax credit that most of you in this 
body sponsored. It exhausts this year. It worked out to be 
about $501 million. We need to extend that for another three 
years. And that money is designed specifically to work 
infrastructure and maintenance problems which directly relates 
to the safety dimension of the small railroad industry.
    Thank you very much for your forbearance for that long 
discussion. But I think it is important for you to appreciate 
where we are coming from in the small railroad world.
    Ms. Brown. Thank you.
    I have three questions, and I will give each one of you an 
opportunity to answer those questions. You can just kind of jot 
them down, so if, in any of your closing remarks you want to 
respond to the question.
    As we plan for reauthorization, what areas are most needed 
for revision or reform, one; what are the most important areas 
for this Subcommittee to focus on regarding FRA's safety 
activities; and the last one, if there was only two things that 
you would like to see FRA accomplish, what are those things? I 
think, Mr. Timmons, you just summed up one of them. But that 
gives you a moment to think about it. As they think about it, 
Mr. Shuster, do you have any other things you want to add to 
that list of three things? Do have something?
    Mr. Shuster. No, I think I have all my questions in. I 
appreciate everybody showing up today and I look forward to 
meeting further with those of you that I already have, so we 
can continue to discuss some of these issues. Thank you.
    Ms. Brown. Mr. Walz? Do you want to add anything to that 
list?
    Mr. Walz. No, thank you, Madam Chairwoman.
    Ms. Brown. All right, then, the old teacher in me is coming 
out.
    Mr. Wytkind. I am happy to answer your question. I don't 
think I just have two things, but I guess if I answer question 
one, then I don't have to answer question three.
    The issues that we are going to focus on are one, 
accountability and enforcement, to make sure that our 
Government does what it needs to do to enforce the law and make 
the requirements stick, including robust fines when they are 
needed.
    The second thing is we are going to fight for stopping this 
harassment and intimidation through stronger whistleblower 
protections. Safety and security training is going to be a huge 
mandate, because despite the comments we heard today, too many 
of the rank and file workers are not receiving the training 
they need.
    Four, we are going to try to find a cooperative way to work 
on this fatigue issue, reflecting a little bit on Mr. 
LaTourette's comments. And lastly, I think we do need to deal 
with the technology issues that we can address through this 
legislation that begins to fix the problems we have with items 
like dark territory, where you have off the shelf technology 
that could eliminate a number of hazards, that if you 
implemented, would hopefully begin to alleviate a number of the 
safety hazards in the rail industry.
    Ms. Brown. Thank you.
    Mr. Wytkind. Thank you.
    Ms. Brown. Mr. Rodzwicz.
    Mr. Rodzwicz. While I certainly concur with all of Mr. 
Wytkind's statements, there are three areas that I think cover 
all three questions, really. That would be training, staffing 
and fatigue.
    Thank you.
    Ms. Brown. Just one second. That did not cover your other 
area that you mentioned earlier, about sanitation.
    Mr. Rodzwicz. Madam Chairwoman, I promised you that we 
would give you a written response, and I am a man of my word.
    Ms. Brown. Ms. Van Dyck.
    Ms. Van Dyck. Thank you, Madam Chair.
    The thing I would like to see with respect to focusing on 
the FRSA in particular, because that is where the problem lies, 
on the issues that I spoke about today, it is a simple fix. And 
the fix is basically an amendment to the preemption language 
that does not get rid of preemption where it is appropriate. 
What it does do is basically say what was intended all along, 
because it focuses on safety, it encourages safety. Nothing in 
this Act is intended to preempt State law remedies, or 
something along those lines. That is all it would take.
    Because if people can't bring a cause of action and 
challenge, whether all these safety regs that are intended for 
safety are met, then there is no incentive to continue to meet 
the standards, because it is that incentive that is needed 
here, and I think it is basically a one line fix.
    Ms. Brown. Thank you.
    Mr. Timmons?
    Mr. Timmons. Madam Chair, I think there are a couple of 
things that we have to focus on. I have touched on them lightly 
before, but I am going to say again as a reminder, this 
business of doubling the penalties for small railroads is 
something that has been proposed by the FRA, is under 
consideration now.
    Ms. Brown. Would you repeat that again?
    Mr. Timmons. Yes, ma'am. The doubling of penalties for 
violations that occur on the railroads. As you know, the 
inspectors find these violations and there is a standard set of 
violations. This past December, the FRA published a very 
exhaustive recommended schedule of penalties for TIH equipment, 
which are pretty significant, 343 different categories of 
penalties for small railroads and large railroads that have 
very substantial costs.
    The doubling of those and doubling of the current penalties 
we think is unreasonable for the small guy. So I think that 
needs clear attention.
    This liability issue for hazardous materials is something 
that the Congress just must address. Collaboratively, Ed 
Hamberger and I are trying to work with our constituencies to 
figure out how we can best do that. But this is a challenging 
problem. There are a number of very, very difficult and 
vexatious dimensions to this thing that are going to require 
some help at this level. So I would say that we need some 
assistance there.
    I would also tell you that while these areas need 
attention, the RSAC, the Rail Safety Advisor Committee, is very 
effectively looking at a host of issues that need attention. 
And I am convinced that they will be successful in that regard. 
But many of them are technical matters, but all of them have an 
impact on small railroads, as well as large. I can provide that 
information to you in detail if you would like, with greater 
explanation.
    Ms. Brown. Yes, sir, and General, I think you and I need to 
have some extensive follow-up talks.
    Mr. Timmons. Yes, ma'am. I will be happy to do that.
    Ms. Brown. I think we have met before, when we were 
discussing bonding and other things. It could be bipartisan, it 
could be with the committees, but I think we need to talk about 
the short lines in particular and how we can assist them.
    Mr. Timmons. I would welcome the opportunity to do that, 
ma'am, and I will work with your staff to get on your calendar.
    Ms. Brown. Yes, sir.
    Mr. Hamberger. I would like to associate myself with the 
remarks of the General and just add one or two things to your 
point, Congressman Walz. I believe that we in fact have a 
systems approach. Fortunately, I am a Washington lawyer, but I 
take a look at the end result.
    But let me get to you examples of the kinds of redundant 
procedures that are there, the kind of focus on safety. And I 
have been out on the railroad as well, and I have been to 
safety briefings, I have been to safety fairs where the culture 
is instilled that safety is our number one priority. And if 
there is a failure on the part of my association with this 
Committee, it is not getting across the point that there is not 
a culture of harassment and intimidation, there is a culture of 
safety. That is what we are going to try and get across. We 
know we have to work with the Committee and with our friends in 
labor on the fatigue issue, a huge challenge ahead trying to 
unwind all of that with respect to the negotiated contracts. 
But we know we have to take a look at that, and look forward to 
the hearing on the 13th to get into that.
    And then of course, as we take a look at the whole issue of 
hazmat, the issue of a Federal preemption, I hope. I associate 
myself with Mr. Wytkind's remark. It must be looked at in the 
context of everything. I agree that we have to take a look at 
all of those issues from tank car safety to a cap on liability 
to Federal preemption. So I hope we can take a look at that as 
a group.
    And again, I would just close with an emphasis that in the 
railroad industry, both short line and the Class Is and our 
employees are focused on safety. That is part of our culture. 
Thank you for staying with us.
    Ms. Brown. I don't know that you answered my question. I 
was looking to hear your answers, what do you think are the one 
or two things that we need to do?
    Mr. Hamberger. I think we need to, number one, take a look 
at the fatigue issue, number two, take a look at the hazardous 
material issue. I was trying to associate myself with General 
Timmons there. So I guess those would be the two in the overall 
context.
    Ms. Brown. And of course, safety.
    Mr. Hamberger. We are not recommending at this point any 
changes in the Federal Rail Safety Act.
    Ms. Brown. I see.
    Mr. Hamberger. We will have some comments perhaps on the 
Hours of Service Act, but not on the Federal Rail Safety Act.
    Ms. Brown. We are going to talk about it as we move 
forward. One of the things we are going to be is fair.
    Mr. Hamberger. Yes, ma'am.
    Ms. Brown. I want to thank all the witness in particular 
for the time and the lateness of the hour, for the valuable 
testimony of the members and the questions. The members of the 
Subcommittee have some additional questions for the witnesses, 
and we will ask you to respond to those in writing. The hearing 
records will be held open for those responses.
    If there is no further business, I again thank the members 
of the Subcommittee and our witnesses and the Subcommittee 
stands adjourned.
    [Whereupon, at 5:25 p.m., the subcommittee was adjourned.]
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