[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
RAIL SAFETY LEGISLATION
=======================================================================
(110-39)
HEARING
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
__________
MAY 8, 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
ELIJAH E. CUMMINGS, Maryland JERRY MORAN, Kansas
ELLEN O. TAUSCHER, California GARY G. MILLER, California
LEONARD L. BOSWELL, Iowa ROBIN HAYES, North Carolina
TIM HOLDEN, Pennsylvania HENRY E. BROWN, Jr., South
BRIAN BAIRD, Washington Carolina
RICK LARSEN, Washington TIMOTHY V. JOHNSON, Illinois
MICHAEL E. CAPUANO, Massachusetts TODD RUSSELL PLATTS, Pennsylvania
JULIA CARSON, Indiana SAM GRAVES, Missouri
TIMOTHY H. BISHOP, New York BILL SHUSTER, Pennsylvania
MICHAEL H. MICHAUD, Maine JOHN BOOZMAN, Arkansas
BRIAN HIGGINS, New York SHELLEY MOORE CAPITO, West
RUSS CARNAHAN, Missouri Virginia
JOHN T. SALAZAR, Colorado JIM GERLACH, Pennsylvania
GRACE F. NAPOLITANO, California MARIO DIAZ-BALART, Florida
DANIEL LIPINSKI, Illinois CHARLES W. DENT, Pennsylvania
DORIS O. MATSUI, California TED POE, Texas
NICK LAMPSON, Texas DAVID G. REICHERT, Washington
ZACHARY T. SPACE, Ohio CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii JOHN R. `RANDY' KUHL, Jr., New
BRUCE L. BRALEY, Iowa York
JASON ALTMIRE, Pennsylvania LYNN A WESTMORELAND, Georgia
TIMOTHY J. WALZ, Minnesota CHARLES W. BOUSTANY, Jr.,
HEATH SHULER, North Carolina Louisiana
MICHAEL A. ACURI, New York JEAN SCHMIDT, Ohio
HARRY E. MITCHELL, Arizona CANDICE S. MILLER, Michigan
CHRISTOPHER P. CARNEY, Pennsylvania THELMA D. DRAKE, Virginia
JOHN J. HALL, New York MARY FALLIN, Oklahoma
STEVE KAGEN, Wisconsin VERN BUCHANAN, Florida
STEVE COHEN, Tennessee
JERRY McNERNEY, California
VACANCY
(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
Page
Summary of Subject Matter........................................ vi
TESTIMONY
Boardman, Hon. Joseph, Administrator, Federal Railroad
Administration................................................. 10
Brunkenhoefer, James, National Legislative Director, United
Transportation Union........................................... 41
Durbin, Martin, Managing Director, Federal Affairs, American
Chemistry Council.............................................. 41
Hamberger, Edward, President and Chief Executive Officer,
Association of American Railroads.............................. 41
Hyde, Kurt W., Assistant Inspector General for Surface and
Maritime Programs, Office of Inspector General, U.S. Department
of Transportation.............................................. 10
Pickett, Dan, International President, Brotherhood of Railroad
Signalmen...................................................... 41
Rosenker, Hon. Mark, Chairman, National Transportation Safety
Board.......................................................... 10
Tolman, John, Vice President and National Legislative
Representative, Brotherhood of Locomotive Engineers and
Trainmen, International Brotherhood of Teamsters............... 41
Wytkind, Edward, President, Transportation Trades Department,
AFL-CIO........................................................ 41
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Costello, Hon. Jerry F., of Illinois............................. 69
Cummings, Hon. Elijah E., of Maryland............................ 71
Lampson, Hon. Nick, of Texas..................................... 76
Oberstar, Hon. James L., of Minnesota............................ 77
Walz, Hon. Timothy J., of Minnesota.............................. 82
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Boardman, Hon. Joseph H.......................................... 83
Durbin, Martin J................................................. 95
Hamberger, Edward R.............................................. 104
Hyde, Kurt W..................................................... 124
Pickett, W. Dan.................................................. 135
Rosenker, Mark V................................................. 141
Wytkind, Edward.................................................. 148
SUBMISSIONS FOR THE RECORD
Boardman, Hon. Joseph, Administrator, Federal Railroad
Administration, response to question from Rep. Higgins......... 30
ADDITIONS TO THE RECORD
Tolman, John, Vice President and National Legislative
Representative, Brotherhood of Locomotive Engineers and
Trainmen, International Brotherhood of Teamsters, joint
statement of the Teamsters Rail Conference and the United
Transportation Union........................................... 152
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HEARING ON RAIL SAFETY LEGISLATION
----------
Tuesday, May 8, 2007
House of Representatives,
Committee on Transportation and Infrastructure,
Subcommittee on Railroads, Pipelines and Hazardous
Materials
Washington, DC.
The Subcommittee met, pursuant to call, at 2:00 p.m., in
Room 2167, Rayburn House Office Building, the Honorable James
L. Oberstar [Chairman of the Subcommittee] presiding.
Mr. Oberstar. The Subcommittee on Railroads, et cetera,
will come to order.
I am substituting today for Subcommittee Chairwoman Corrine
Brown who had an emergency and left this morning for Florida to
attend to her grandmother who has been taken seriously ill. I
know Corrine is a very strong family person and she wants to be
there. So the Subcommittee will have to do with the gentleman
from Minnesota.
I welcome the gentleman from Pennsylvania, Mr. Shuster, who
has a long and abiding interest and very strong interest in
railroads in his own district and from his service on the
Committee.
I ask unanimous consent at the outset of the hearing for
Members of the Full Committee, Mr. Higgins, Mr. Salazar, and
Mr. Arcuri to participate in the Subcommittee hearing and to
ask questions after the duly constituted Members of the
Subcommittee have completed their rounds of questioning.
Is there objection?
Without objection, so ordered.
We are here to consider rail safety legislation including
the bill that Subcommittee Chairwoman Brown and I introduced
last week. The Administration has its own measure, H.R. 1516,
and the Ranking Member of the Full Committee, Mr. Mica, and the
Ranking Member of the Subcommittee, Mr. Shuster, have developed
their own proposal and circulated it for comment. Of course,
any aspects of those proposals are available and focus
discussion at the Subcommittee hearing today.
Frankly, safety legislation is long overdue. Congress last
authorized the FRA in 1994, authorization that expired in 1998.
The Committee on Transportation and Infrastructure has not
ignored the issue and over the intervening years has held 22
hearings on rail safety.
One of those I recall was a very pointed, a very harsh
hearing with the then Administrator Jolene Molitoris in which
in a particularly sharp exchange I said, well, then get about
the business of improving rail safety.
And they did. Actions were taken within the Federal
Railroad Administration, with the railroads and with the
railroad brotherhoods.
In the first four months of this Congress, we have had four
hearings on rail safety, one of which was a field hearing in
San Antonio. The time has come to take action to move through
the Subcommittee and Full Committee process, a rail safety
bill.
The Federal Railroad Administration reports the number of
train accidents, including collisions and derailments, has gone
from 2,504 in 1994 to 3,325 in 2005. Last year, that number was
down to 2,835. That is good news. That is improvement, but it
has a long way to go.
Forty percent of train accidents, the FRA reports, are the
result of human factors. One in four of those results from
fatigue.
Fatigue, I have often called the silent killer or put
differently by Vince Lombardi when he was coaching the Green
Bay Packers, fatigue makes cowards of us all. He didn't mean it
in the sense of people who are fearsome or fearful or cowardly
but rather, as he said, it makes you lose your timing, lose
your sense of direction, lose your sharpness and your
perceptiveness.
The NTSB put it differently: ``The current railroad hours
of service laws permit and many railroad carriers require the
burdensome fatigue-inducing work schedule of any Federally
regulated transportation mode in this Country.''
Comparing the modes is a very revealing exercise. An
airline pilot can work up to 100 hours a month. Shipboard
personnel at sea can work up to 240 hours a month. A truck
driver can be on duty up to 260 hours a month. Train crews can
operate a train up to 432 hours a month. That is 14 hours a
day, if you go to that number, for 30 days.
There is, I think, widespread agreement--even the railroads
will grudgingly acknowledge--that, yes, something ought to be
done about hours of service. They certainly disagree with us on
what and how far to go. But in consideration that there is 40
years since really substantial changes have been made, we ought
to do something.
In previous Congresses, I introduced legislation to
strengthen the hours of service laws for the rail sector, and
the Association of Railroads resisted it. Their view
consistently has been that that ought to be dealt with at the
collective bargaining table.
I don't think so. Safety is a matter of public interest.
Public interest overrides whatever may, in this arena, be
negotiated at the bargaining table.
I recall a visit to one of the paper mills in my district,
and some of the younger workers had, not in the collective
bargaining agreement but in a verbal agreement with plant
management, signed up for four twelve hour days and then a four
day weekend.
I asked one of the senior workers, some guy who had been in
the plant for 38 years. I said, what do you think about that?
He said, well, I know this. I don't want to be standing
alongside one of those guys next to this vat and he does
something stupid and I wind up in the vat because he is
stretched too thin.
You don't have a right to endanger yourself or anyone else
in the workplace.
The legislation that we introduced requires Class I
railroads to develop and submit to the Secretary a plan for
implementing a positive train control system by 2014. We are
not saying do it tomorrow. We are giving them a considerable
amount of time.
But that proposal has been on the NTSB's list of most
wanted safety improvements since it was developed, since the
technology was developed in 1990. Before we scheduled the
hearing, I asked NTSB to search their records and provide us
information on how many accidents in the past decade would have
been prevented with positive train control in place. The
answer: 52 such accidents.
There is always the concern by industry, if you make us do
this. I have heard it in aviation for years. If you make us do
this, it is going to cost a lot of money. We pay a lot more
money for fatalities.
We also address track safety in the bill. In 2006, track-
related accidents surpassed human factors-related accidents as
the leading category of all train accidents. In Oneida, New
York, Pico Rivera, California, Home Valley, Washington, Minot,
North Dakota, Nodaway, Iowa, they all raise serious concerns
about the condition and about the safety of track on the
Nation's railways.
On April 18, as a result of the Oneida accident, FRA did an
audit of CSX tracks in upstate New York and found 78 track
defects and one serious violation.
We need to strengthen safety at the grade crossings, an
issue this Committee has dealt with for many, many years. I
remember my former colleague from Northwestern Minnesota, Arlen
Stangeland, a Republican who advocated for funding out of the
Federal Highway Program to separate rail grade crossings. It
goes back years.
The DOT Inspector General says the railroads are still not
reporting grade crossing collisions and injuries. They are not
reporting them sufficiently to the FRA. Twelve railroads,
according to the IG, failed to report 139 collisions within 30
days after the end of the month in which the collision
occurred, and some were three years late.
The FRA and the States use that information to find the
dangerous crossings, to analyze accident trends and to take
appropriate action. We have got to have information. That
information has to be reported. It has to be available.
The Inspector General says in 2006, FRA found an unusually
low number of accidents for grade crossing collisions involving
a Class I railroad when the train and/or motor vehicle was
traveling in excess of 35 miles per hour. No injuries were
reported for 154 collisions. Those grade crossing injuries were
down in 2006, but if no injuries were reported for 154
collisions and that was just for one railroad, maybe the actual
number went up.
It reminds me of a period in 1985-1986 when the FAA told
Congress and told the public that near mid-airs were down. We
checked with the NTSB, Mr. Rosenker, and the NTSB at the time
said, oh, no, they are up.
We checked with hotline for reporting anonymously and found
they were double. Something is wrong here. So we held hearings
on the subject of near mid-airs and found there was a vast
disparity between what the airlines were reporting and what was
happening in the air. So we have the same situation with what
is happening on the rails.
The FRA relies on just 421 federal safety inspectors and
160 State inspectors to monitor safety compliance. Our bill
will increase the number to at least 800 over the next four
years. That is a good start and a better start is these
hearings.
I yield to the gentleman from Pennsylvania, Mr. Shuster.
Mr. Shuster. Thank you, Mr. Chairman. It is good to have
you here with us today.
Also, I found out this morning that Chairwoman Brown's
grandmother is gravely ill in Florida. So I just want to offer
my thoughts and prayers to her and her family. I hope their
grandmother has a speedy recovery.
Today's Committee hearing is the fourth hearing we have had
on rail safety this year, as the Chairman pointed out. I
believe over 20 hearings in the last 10 years.
The message that I get and the facts that I see are that
the rail industry is safer than it has ever been when you put
it in the context of although there have been increases and
decreases in the various accidents but when you look at the
significant expansion on the miles that are put and the cargo
that is carried. When you put that in context, it is a safer
industry today than it was last year and the year before and
the year before.
The final statistics of 2006 show that it was the safest
year on record in the rail industry. Nationally, accidents
decreased 12.4 percent, and Texas led the Nation with 51 fewer
train accidents. Accidents caused by human error, the leading
cause of all train accidents, declined by over 20 percent in
2006.
But while the rails may be safer than ever, there is still
much that we can do and must do. Last week, Chairman Oberstar
filed a Rail Safety Reauthorization bill and, as many of you
know, I have been circulating my own draft for the past several
weeks, trying to get comment and work through to put together a
bipartisan piece of legislation which I hope we can and I
believe that there is common ground for all of us to work
together on a rail safety bill.
As we move ahead with a rail safety bill, one of the most
important issues is unfunded mandates. If we impose new costs
on the railroads, these costs ultimately are passed to
customers and consumers who already are suffering the effects
of fuel surcharges and other rate increases.
The rail industry is currently spending about $10 billion a
year, providing new track capacity. This is all private
capital, and the investors expect a reasonable return. New and
unfunded government mandates could sap money from the
railroads' infrastructure expansion programs and further
increase congestion on our rails.
I have read the Brown-Oberstar bill, and it has some very
good points. For example, I agree that we need to make changes
in the hours of service law. I also like the idea of developing
model State legislation for grade crossing violations.
We have not had much time to discuss the actual text of the
rail safety bill, so I am glad that we are having today's
hearing. I hope that we can continue to work together and, in
the next few weeks, develop a truly bipartisan rail safety
bill.
I am looking forward to this most informative hearing
today.
I yield back.
Mr. Oberstar. I thank the gentleman for his comments.
Of course, the purpose of introducing the bill is so it
will be available. It is a culmination of--a compilation more
than a culmination--a compilation of many of the pieces of rail
safety legislation I have introduced over past years and
certainly it will be available during this hearing, afterwards
and then we will continue internal discussions in the Committee
and work toward consensus legislation as far as we possibly
can.
Do other Members have comments?
Mrs. Napolitano?
Mrs. Napolitano. Thank you, Mr. Chair.
You have heard many of my comments before in regard to rail
traffic in my area because of the Alameda Corridor East which
has extensive and heavy use and will be increasing in the next
few years. Currently, there is 150 trains through my district
every day. It probably will double, triple with the transfer of
the rest of the U.S. goods. Forty, forty-five percent of the
Nation's goods go through my area.
The reason I am concerned is I was wondering if FRA can
make stronger regulations for rail inspection for the
maintenance for the hazmat cars because a lot of what will go
through in my district is going to contain hazardous material
and it is all highly populated. Los Angeles County has roughly
10 to 12 million residents, depends on who you ask. We have a
very, very populated area. So it is a concern in regard to
that.
The other concern is the railroads have had an Operation
Lifesaver which could help inform and educate children and
schools about rail safety, and this was put into effect, I
guess, some time back and utilized in one of my schools and
then dropped because apparently it operated under volunteer
staff. I am wondering whether you feel that FRA would be able
to create such a program within FRA to be able to be uniform in
educating the general public and children about delivering this
lifesaving message of safety in vigilance around the railroads.
Those two questions right off the bat to Mr. Boardman.
Mr. Oberstar. We are not in the questioning period.
Mrs. Napolitano. Oh, I am sorry.
Mr. Oberstar. We are not at the questioning point.
Mrs. Napolitano. I am trying to get ahead of the game here.
Okay, well, actually in the 2095, there are a lot of
provisions that I am very, very happy with, and it does improve
a lot of the whistleblower protections, the fatigue and
enforcement, et cetera.
Again, because of the heavy use in my district, it is a
very big concern, and I certainly want to thank Chairwoman
Brown and Chairman Oberstar for putting this piece of
legislation together, and I look forward to working with you.
Mr. Oberstar. Mr. Cummings?
Mr. Cummings. Thank you very much, Mr. Chairman. Mr.
Chairman, I do thank you and Ms. Brown for calling this hearing
today.
I think the thing that I am most concerned about is that I
want to make sure that we make it happen. Mr. Chairman, as you
well know, it has been a while since we last reauthorized the
Federal Railroad Administration back in 1994, and that expired.
That authorization expired in 1998.
I think that the thing that I am concerned about is the
urgency of making it happen. I have read the legislation, your
legislation, Mr. Chairman, and it seems to address all the
issues in a very practical and reasonable way.
I realize that here on the Hill so often what happens is
that folks get into a battle over a lot of the small things but
forget the big picture, and the big picture is about safety. I
think Mrs. Napolitano, in her zeal to get to the questions,
pretty much said a lot of what I feel.
We have got trains going through some very dense areas like
the City of Baltimore. When I read that either the number one
or number two cause of train accidents is defective tracks and
then we look at the situation with regard to how those tracks
are inspected and then we think about hazardous materials
spilling as a result of a train accident in my city and
bringing life as we know it to a halt, I think that this a very
urgent matter.
I know, Mr. Chairman, in my working with you as the
Chairman of the Subcommittee on the Coast Guard, I know how
determined you are to make it happen. We will make it happen,
and we will make it happen in a way that is good for the people
of our Country, good for the rail industry and good for the
passengers and freight haulers in the United States.
Like I said, I will submit a longer statement, Mr.
Chairman, but I want to thank you again for your leadership.
Thank you and Ms. Brown for producing such a comprehensive
bill.
With that, I yield back.
Mr. Oberstar. Mr. Higgins?
Mr. Higgins. Thank you, Mr. Chairman.
I reluctantly would support an additional regulation of the
railroads but for the fact that if industry fails to regulate
itself to ensure the safety of its track bed, in this case, the
railroad industry, it is the moral obligation of government to
regulate.
Despite some figures with respect to improvements and
uptick in rail safely, it is not true in all areas of the
Country. I represent an area in Buffalo, New York. It is a
northeastern region area that is subject to harsh weather and
an aging infrastructure. Western New York rose up as a great
transportation hub, and the rail network remains extensive and
fundamentally important to Buffalo and western New York.
Over the past 10 years, 166 derailments in Erie and
Chautauqua County, 73 of which were due to track defect. Over
the past three years, 47 derailments, 20 due to track defect.
This record is unacceptable. I would submit that if the major
rail companies, CSX, fail to regulate their industry to ensure
public safety, it is Government's responsibility to do it.
Recent derailments in western New York in December, trains
derailed on overpasses in Chateaugay and Buffalo, New York on
consecutive days. In April, seven cars spilled coal near
Dunkirk, New York.
I asked the Federal Railroad Administration and
Administrator Joe Boardman responded, but because of a lack of
resources, they were only able to inspect certain areas, not
able to do a comprehensive inspection throughout the two county
area. The lack of Federal Railroad Administration resources to
inspect a two county targeted area is unacceptable.
I am pleased with the legislation that Chairman Oberstar
and Chairwoman Brown have introduced that will nearly double
the number of inspectors and provide equipment the Federal
Railroad Administration needs to conduct inspections in areas,
particularly vulnerable areas like Buffalo and western New
York.
Thank you, Mr. Chairman, for your leadership on this issue,
and I will submit my further remarks into the record.
Mr. Oberstar. Without objection, complete remarks will be
accepted for the record.
The Chair recognizes the gentleman, Mr. Arcuri.
Mr. Arcuri. Thank you, Mr. Chairman. I would like to thank
the Chair and the Ranking Member for giving me an opportunity
to sit in on this hearing today.
I would also like to thank our panel for being here
including my former constituent, Mr. Boardman. Thank you very
much for being here.
I would like to lend my support for the Federal Railroad
Safety Improvement Act. This bill will improve the state of our
Nation's railroads and help minimize the number of future
accidents, collisions and derailments.
This bill will, among other things, ensure tougher
requirements are placed on railroads to decrease fatigue among
train crews and increase civil and criminal penalties for
railroad companies that fail to comply with safety standards.
The bill also provides funding for new track inspection
equipment and increases the number of Federal Rail Safety
Inspectors on hand that will identify problems and help
minimize accidents.
As the Chairman referred to, recently on March 12th, 28
cars of a CSX freight train derailed in Oneida, New York, which
borders my district and was a mere two miles from Sherrill, New
York, a city in Oneida County which I represent. Several of
those cars contained chemicals such as ferric chloride which
posed a grave health risk and required many people to be
evacuated.
Thankfully, no injuries or fatalities were the consequence
of this disaster. However, the safety and comfort of people
close to the accident was deeply affected. Additionally, the
derailment caused the New York State Thruway, the main east-
west thoroughfare in New York, to be shut down for several
hours.
My colleague whom we just heard from, Mr. Higgins, who is a
bit further down on this line, knows all too well how critical
to make sure our freight and passenger railroads are compliant
with safety requirements. As he indicated, the numerous
derailments in western New York over the last two years and now
the Oneida incident is very alarming and raises many red flags
about the state of New York's rail infrastructure.
While this concern continues to trouble the people of New
York, a private company is seeking to build a 190-mile high
voltage line from the town of Marcy in Oneida County down to
New Windsor in Orange County. The company estimates that more
than 90 percent of the proposed primary and alternative routes
will follow existing right-of-ways, both along railroad tracks
and natural gas lines. The transmission line would consist of
135-foot tall towers and be operated with a rated power flow of
1,200 megawatts.
A portion of the proposed route follows the New York
Susquehanna and Western Railway right-of-way, a very active
rail line which runs through some of the more heavily populated
cities and towns in upstate New York.
This is a situation where the safety implications and risks
are unknown. Imagine if a derailment occurred and the train
struck these high tension lines.
The well being of my constituents and the safety of New
York's railways is a top priority for me as a Member of the
Transportation Committee. I have already called on the
Department of Homeland Security and Transportation to conduct
an assessment of the safety and security vulnerabilities of
placing high voltage direct current electric transmission lines
along active railroad rights-of-way.
However, I want my colleagues to know this is not only a
concern for New York State. The Department of Energy recently
announced the proposal for two national interest electric
transmission corridors designating, affecting 11 States and the
District of Columbia. Parts of New York, Virginia and
Pennsylvania in particular are faced with the possibility of
having more major power line projects forced upon them due to
this designation.
As a result, many communities across the County will now
have to worry about the safety and security concerns of setting
these power lines along railroads that currently are in
violation of safety standards. It is an issue that should be of
concern to all.
I look forward to working with the Chair and my colleagues
to continue to shed light on this troubling development and to
ensure that this critical legislation is quickly considered
before the Full Committee.
I thank you, and I yield back the balance of my time.
Mr. Oberstar. The gentleman from Colorado, Mr. Salazar.
Mr. Salazar. I want to thank you, Mr. Chairman. I want to
thank you for allowing me to attend this important hearing.
While I am not a Member of this Subcommittee, I have a vested
interest in the Federal Railroad Safety Improvement Act.
I believe that this bill addresses many important issues
that have been ignored for far too long, but I am here today to
speak about one provision that authorizes funding for a tunnel
to be built in the Transportation Technology Center, an
internationally recognized train testing facility. This
facility is located in Pueblo, Colorado.
TTC is used by the Federal Railroad Administration to
conduct significant research and development on rail safety.
TTC offers 48 miles of railroad test track to test rolling
stock, track components, signal and safety devices, track
structure and vehicle performance. It also has several one of a
kind laboratory testing facilities used to evaluate vehicle
dynamics, structural characteristics and advanced braking
systems.
TTC already operates a world class research and test center
offering a wide range of capabilities in railroad and transit
research. For the past two years, I have been working to get
funding for the facility for an underground rail station and
tunnel. The tunnel will add to the center's capabilities and
serve as an invaluable resource as we strive to ensure our
Nation's railroads are safe and secure as possible.
Recent events have sadly demonstrated the vulnerability of
underground mass transit systems. Safety experts have
identified a number of technology and training needs to prevent
attacks on tunnels and to lessen the consequences of such
attacks.
Technological needs include detection systems, dispersal
control and decontamination technologies. The distinctive
remote environment of TTC allows such testing and training
activities to be carried out at this secure location without
disruption of the flow of passenger rail traffic in and out of
urban areas.
I applaud Chairman Oberstar and Chairwoman Brown for
recognizing the important role of such a tunnel and what it
will play in the safety of railways.
Last year, Chairwoman Brown and Chairwoman Johnson and
Secretary Mineta and Mr. Petri from this Committee accompanied
me for a tour at the TTC center, and I would encourage the
Chairman of the Full Committee, Mr. Oberstar, to do as well and
other Members. I would sure appreciate if you could see the
abilities and the capabilities that we have at this center. It
is one of its kind. There is not another one of its kind in the
world.
I believe that this bill is long overdue, and I look
forward to today's hearing and the witness testimony.
Thank you. I yield back.
Mr. Oberstar. I thank the gentleman for his comments, and I
certainly do look forward to getting out to view your center
and see its operations.
The gentleman from New York, Mr. Nadler, do you have a
comment?
Mr. Nadler. Thank you, Mr. Chairman. I would like to thank
you and Chairwoman Brown and Ranking Member Shuster for holding
this hearing regarding rail safety legislation.
I would also like to welcome Mr. Boardman who was our State
Transportation Commissioner in New York under Governor Pataki.
For years, he has heard me talk ad infinitum, perhaps ad
nauseam, about rail freight issues, so I always look forward to
his testimony as Administrator of the FRA.
I have been a long time supporter of preserving this
Country's rail infrastructure. We spend tens of billions of
dollars every year on highways and aviation, a lesser amount on
passenger rail and virtually nothing, virtually no government
funding on rail freight. I hope that this Committee will
eventually find a way to increase funding for freight rail
capital improvements, so that we can increase capacity.
But to do so, we also need to ensure that rail continues to
be one of the safest modes of transportation. Although rail is
one of the most energy efficient and secure modes of
transportation, there were over 2,800 train accidents last
year. Most of these accidents were caused by things that are
preventable. Over 1,000 were a result of track defects and
another 1,000 were caused by human factors, chiefly fatigue.
This Subcommittee has held several hearings over the years
on rail safety including three hearings last year and four
earlier this year. It seems to me we have held enough hearings
and it is time to begin moving legislation.
I am glad that Mr. Oberstar and Ms. Brown have introduced
the Federal Railroad Safety Improvement Act, H.R. 2095, to
address the main causes of rail accidents. Among other things,
the bill includes hours of service reform that is desperately
necessary to address fatigue, and it provides funding to double
the number of track inspectors and to purchase equipment that
can detect track defects.
I look forward to hearing from the witnesses today,
particularly as it pertains to this legislation, so that we can
finally take adequate action to address rail safety.
Thank you, Mr. Chairman. I yield back.
Mr. Oberstar. The gentleman from Iowa, Mr. Boswell.
Mr. Boswell. Just very briefly, again, I associate myself
with what Mr. Nadler just said.
Just looking over some of the information that has made
available to us, when you look at some of the information from
the Safety Board which we will hear from here shortly and
compare the hours that are required and put upon people that
work the rails, it is revealing. It seems to me like this needs
some consideration.
I think in terms of what is according to the NTSB, a
commercial airline pilot can work up to 100 hours a month
jetboard. It says 240. A truck driver can be on duty up to 260.
Train crews operate a train up to 432. Now if that would be
what they do every day, that would equate to 14 hours a day for
30 days.
So I think this discussion needs to take place and some
action is needed. I appreciate the time, and I will yield back
and listen to the discussion.
Mr. Oberstar. I thank the gentleman.
Now we look forward to testimony from our panel: Mr.
Boardman, Mr. Rosenker and Mr. Hyde. I am anxious to hear Mr.
Boardman defend the Administration's bill.
TESTIMONY OF THE HONORABLE JOSEPH BOARDMAN, ADMINISTRATOR,
FEDERAL RAILROAD ADMINISTRATION; THE HONORABLE MARK ROSENKER,
CHAIRMAN, NATIONAL TRANSPORTATION SAFETY BOARD; KURT W. HYDE,
ASSISTANT INSPECTOR GENERAL FOR SURFACE AND MARITIME PROGRAMS,
OFFICE OF INSPECTOR GENERAL, U.S. DEPARTMENT OF TRANSPORTATION
Mr. Boardman. Before I do that, with the indulgence of the
Chair.
Mr. Oberstar. Yes.
Mr. Boardman. I would like to correct the record.
Michael, I am still your constituent.
Michael's father, Carmen, and I were good friends. I would
like you to know, God rest his soul, that Carmen is no longer
with us but was also a member of the Public Transportation
Safety Board in New York, a very committed safety individual.
So I am glad to be here, Michael.
Thank you for your indulgence.
Mr. Oberstar, Ranking Member Shuster and Members of the
Subcommittee, I am pleased to be here today on behalf of the
Secretary of Transportation to discuss our proposed rail safety
legislation, and I look forward to working with the Committee.
On the Administration's rail safety bill, I also appreciate
the fact that you entered that bill for us.
I would like to talk just about two things today in that
bill: authorizing the Safety Risk Reduction Program and
protecting its confidentiality.
I believe that the strongest argument for the FRA to exist
is that it is the FRA which is expected to stand in the shoes
of all those people that live, work, or have need of being
within the vicinity of a main line railroad track. I believe it
is the FRA that is expected to balance an equation that does
not have proper third-party risk calculated today.
I believe that railroads have miscalculated that risk
equation in not ending main track, track-caused derailments.
Railroads must do better, and they can.
Before I came down here from New York two years ago, and
since I have been here, I have referenced the work of Ian
Savage in a book entitled the Economics of Railroad Safety. It
was written at the request and the support of the AAR. It is a
good book in helping to understand the many economic issues
around railroad safety, but I have decided that it has it wrong
when it comes to what is called railroad myopia in the book.
``The nature of the market for safety makes myopic Behavior
possible. The costs of preventive effort are borne in the
present whereas accident costs including liability to customers
and bystanders occur at random times in the future.''
The author goes on to argue that really the only two
failures that exist out there today are those railroads that
are inexperienced, and therefore do not understand what they
must do, or the unscrupulous behavior by a railroad that
reduces costs for today's gain, gambling that a random event
will not occur in their future.
What I find wrong here is that these events do not happen
at random times in the future. They happen because trains
derail or collide. Nearly three-quarters of the time, it
happens as a result of track failure or human failure, and data
shows that it is not random. It is predictable.
These events will continue to happen and may happen more
frequently unless the railroads embrace a new cost factor in
their risk equation that significantly reduces the probability
of track-caused, main track derailments and human factor-caused
events, especially by fatigued rail employees. The railroads
are very aware of these costs, and they could wipe out their
business as a result of the lawsuits and damages that occur
with main line derailments.
To be fair, they are doing what they believe they need to
do to make improvements, but it is not enough because the
public does not believe it is enough. Those third parties that
live, work, or have occasion to be near a railroad say they
want trains to stay on the tracks.
The FRA has worked with industry in developing PTC,
electronically controlled pneumatic brakes, continuous welded
rail, rail integrity, rail flaw detection, track geometry
standards, ground radar, real time track measurement, automated
joint bar inspections, WILD systems, which are wheel impact
detectors, and acoustic bearing sensors.
It is about the track, and it is about technology_track
that needs to be maintained at higher levels than minimum
standards, and technology that needs to be deployed and used on
both track infrastructure and equipment to reduce the
probability of derailment. Together, they reduce risk.
Some of our railroads today are embracing this risk
reduction strategy. Some use the latest available science to
improve track and equipment maintenance. But some have been
slow to embrace that science, and all can do better.
Human factors cause more than a third of all train
accidents, constituting the largest category of train accident
causes, and fatigue is at least a contributing factor in one of
every four serious, human-factor caused accidents. We believe
that fatigued crew members have played an increasing role in
railroad accidents over the past decade through poor judgment,
miscommunication, inattentiveness, and failure to follow
procedures.
Our challenge is to ensure that crew members have adequate
opportunity to rest, are free of disorders that can disrupt
sleep, and are fully engaged in maintaining alertness.
With your indulgence, 100 years is long enough. It is time
to make sure that we have people operating trains that are not
subject to cognitive failure that causes catastrophic accidents
as a result of fatigue.
Congress created the FRA 40 years ago to ensure railroad
safety. Congress needs to delegate, trust, and verify that its
creation will end this dangerous problem with both reasonable
and enforceable regulations that use the best science available
today. It is about time on duty. It is about total time. It is
about limbo time and, most importantly, it is about rest time.
With your delegation and support, the FRA will use the
latest science in a collaborative fashion with our well
respected RSAC process to develop the right solution, and we
will update that solution as the science improves or as we find
a need to do so without passing a statute. These folks, those
folks that live, work, and have occasion to be within the
vicinity of a main line railroad track think it is about time.
Thank you.
Mr. Oberstar. So do we. Thank you, Mr. Boardman.
Mr. Rosenker?
Mr. Rosenker. Good afternoon, Chairman Oberstar, Ranking
Member Shuster and distinguished Members of the Subcommittee. I
would like to thank you for inviting me to testify on rail
safety issues that are being considered today in the proposed
rail safety legislation and for your continued interest in
furthering the safety of our Nation's railways.
Let me begin by addressing the decades long history of
fatigue-caused railroad accidents and the frustration we share
with the FRA regarding its lack of legislative authority to
address the root causes of fatigue.
The earliest railroad accident in which the Board
attributed fatigue to the probable cause of the accident was a
collision between two freight trains in Wiggins, Colorado in
1984. Fatigue accidents have continued unabated such as the
collision between trains at Anding, Mississippi in 2005 and
Macdona, Texas in 2004.
In Anding, both crew members typically worked six days a
week, 11 to 12 hours each day. They were working the sixth
consecutive day when the accident occurred. In Macdona, we
found that the crew members failure to obtain sufficient rest
before reporting to duty and the railroad's scheduling
practices both contributed to the accident.
Proposals being considered for legislation this year
address specific elements of employee fatigue. However, we
believe that a comprehensive fatigue management program is
needed that considers scientifically-based principles when
assigning work schedules; these principles include factors that
influence acute and cumulative fatigue, the body's ability to
adjust to rotating schedules and the responsibility of
employees to get sufficient and timely sleep during their off
duty periods.
We believe that the best means to achieve this result is
through regulations promulgated by the FRA that can only be
modified as industry conditions evolve.
My next topic addresses positive train control systems.
Technological solutions, such as positive train control
systems, have great potential to prevent serious train
accidents by providing safety redundant systems to override
mistakes by human operators. PTC has been on the Safety Board's
most wanted list of safety improvements for 17 years.
In the past 10 years, the Board has investigated 52 rail
accidents including 4 transit accidents where the installation
of positive train control would likely have prevented the
accident. Although we are encouraged with progress underway by
some railroads, we believe that positive train control systems
are needed on all railroad systems across the entire United
States.
My next topic addresses improperly positioned switches. One
of the most serious train accidents occurred in Graniteville,
South Carolina in 2005. A train encountered an improperly
aligned switch that diverted it from the main track onto an
industry track where it struck a parked train. The track
through Graniteville was dark territory.
Later in the year, a train encountered a siding at
Shepherd, Texas and struck a parked train again in dark
territory.
The Safety Board first addressed this issue in 1974 after
an accident in Cotulla, Texas. A safety recommendation to the
FRA to address the safe train speed in dark territory was later
closed as unacceptable.
The Board believes that automatically activated devices are
needed to visually or electronically capture the attention of
employees involved in switch operations in dark territory and
clearly convey the status of the switch. In the absence of
automated switch systems that provide train crews with advance
notice of switch positions in dark territory, trains should be
operated at speeds that will allow them to be safely stopped in
advance of misaligned switches.
Additionally, the most expedient and effective means to
reduce public risk from highly poisonous gases in train
accidents is through operational measures such as positioning
tank cars toward the rear of trains and reducing speeds through
populated areas.
Finally, a proposal for Rail Passenger Family Disaster
Assistance mirrors the Aviation Disaster Family Assistance Act
of 1996. We believe this legislation would be beneficial to
victims and their families, following a rail disaster.
The Board, however, has two concerns. The first is
clarification of our responsibilities to victims in accidents
where the Board is not launching an investigative team and,
second, this legislation would present a significant demand on
our already stretched resources.
In closing, I would like to acknowledge that in our review
of the proposed legislation, many of the Safety Board's
previously issued recommendations on rail safety have been
addressed, and we appreciate this Committee's interest in our
safety concerns.
Mr. Chairman, I would be happy to respond to any questions.
Mr. Oberstar. Thank you very much, Mr. Rosenker, for your
very frank and straightforward testimony. You know in what high
regard I hold the NTSB and have done for many years.
Mr. Rosenker. Thank you, Mr. Chairman. I appreciate that.
Mr. Oberstar. Mr. Hyde, we look forward to your testimony
that you have from the Inspector General.
Mr. Hyde. Thank you, sir. Chairman Oberstar, Ranking Member
Shuster, and Members of the Subcommittee, thank you for the
opportunity to testify today as you consider legislation to
reauthorize the Federal Railroad Safety Program.
On May 7, 2007, we released our fourth report on grade
crossing safety. We found that FRA can do more to improve grade
crossing safety by ensuring compliance with its mandatory
reporting requirements for crossing collisions. Additional
effort is also needed to address sight obstructions blocking
the driver's view of approaching trains.
My testimony today is based on our body of work on grade
crossing safety. We have identified five actions that railroads
and FRA can take to reduce grade crossing collisions and
fatalities. These are areas that you may wish to examine as you
evaluate current legislative proposals.
First, compliance with mandatory reporting requirements.
Railroads are charged with two distinct reporting requirements
when a grade crossing collision occurs. First, an immediate
call within two hours to the National Response Center for all
serious collisions, to determine whether a Federal
investigation at the accident scene is needed. Second, within
30 days of the end of the month in which the collision
occurred, the railroad must report every grade crossing
collision to FRA.
Timely and accurate reporting of collisions is essential to
identifying dangerous crossings and emerging accident trends.
More can be done to ensure compliance with both of these
reporting requirements.
In November 2005, we reported that railroads had failed to
notify NRC immediately in 21 percent of serious collisions;
most of these involved fatalities or multiple injuries. Our May
2007 report also cited concerns with another requirement,
noting that railroads failed to report to FRA 139 collisions
timely, with some being nearly three years late.
Because FRA did not routinely review grade crossing
collision records maintained by the railroads, it does not know
whether some 15,000 collisions reported by the railroads
between 2001 and 2005 include all collisions that occurred.
FRA has begun reviewing collision records maintained by the
railroads. These reviews are intended to determine whether
grade crossing collisions are being properly reported. The
Subcommittee may wish to require that FRA periodically report
the results of these reviews.
Two, increasing FRA involvement in collision
investigations. FRA's 385 inspectors cannot physically examine
every grade crossing collision. Instead, the Agency relies on
railroad self-reporting.
To better evaluate the causes of collisions and railroad
compliance with Federal safety regulations, we recommended that
FRA broaden its review of railroad-reported information. FRA
has just completed a one-year pilot program to collect and
analyze independent information. FRA should report the results
of the study as soon as possible.
Three, addressing sight obstructions. It is hard to steer
clear of a train you can't see, especially at the 76,000 public
crossings that do not have automatic warning lights or gates.
Obstructions, such as overgrown vegetation as illustrated in my
written statement, can significantly reduce visibility. For
example, between 2001 and 2005, obstructions were present in
689 collisions in which a total of 87 people died and 242 were
injured.
As of this past March, only 13 states had laws regulating
sight obstructions, and these varied widely. FRA should work
with the Federal Highway Administration to develop model
legislation for states in this area.
Four, establishing mandatory inventory reporting
requirements. FRA's National Grade Crossing Inventory System
identifies grade crossings and the types of warning devices
installed. The accuracy and completeness of this inventory are
essential because states rely on it to prioritize safety
improvements.
Voluntary reporting by railroads and states has not been
successful. We found that 36 percent of public grade crossing
records have not been updated since 2000. We believe that
mandatory reporting should be required.
My final point is requiring action plans for the most
dangerous crossings. We have recommended that FRA identify
states having the most dangerous crossings_those with the most
accidents year after year_and develop with those states, action
plans identifying specific solutions for improvement.
In March 2006, FRA completed its first such plan with
Louisiana. Officials acted to improve safety at 73 percent of
the crossings with more than one collision. FRA is now working
with Texas in a similar effort. The Subcommittee may wish to
require action in other states with high numbers of grade
crossing collisions.
Chairman Oberstar, we will work with FRA as it focuses on
these areas to make railroad crossings even safer.
This completes my prepared statement, and I would be happy
to respond to any questions from you or the other Members of
the Subcommittee.
Mr. Oberstar. Thank you very much, Mr. Hyde. We greatly
appreciate the work of the Inspector General over many years.
In combination with the work of the National Transportation
Safety Board, it is an extraordinarily valuable asset for
public understanding of the conduct of the affairs and
responsibilities of the many modes of the Department of
Transportation.
Mr. Rosenker, are you familiar with flight time and duty
time in the aviation sector?
Mr. Rosenker. I am, sir.
Mr. Oberstar. Distinguish those two.
Mr. Rosenker. We are talking about flight time that is
actually calculated from the moment that the aircraft pulls
away from the gate. That amount would be at a maximum of 100
hours a month that we are talking about.
Mr. Oberstar. From the time of release of the brake?
Mr. Rosenker. Yes, sir.
Mr. Oberstar. When does it end?
Mr. Rosenker. It ends when it comes back to the gate and
the brake is put on again.
Mr. Oberstar. When the brake is applied.
Mr. Rosenker. Although 100 hours is authorized a month, it
is rare that 121 pilots will reach that. They max out at 1,000
a year, so it would normally be somewhere between 65 and 80
hours a month that they are actually operating the aircraft.
But duty time also would include flight planning and travel
to and from their place of domicile where they are going to
have rest as well.
Mr. Oberstar. Pilots and flight attendants are paid for
flight time, but duty time is a more encompassing term, is it
not?
Mr. Rosenker. Yes, sir, it is.
Mr. Oberstar. Do you know how long it took us to get
legislation enacted to limit flight time?
Mr. Rosenker. Sir, I don't, but I hope you will be able to
give me that answer.
[Laughter.]
Mr. Oberstar. Fourteen years, 14 years of attempted
rulemaking by the FAA, and then it took an action of Congress
to get it done.
Now, Mr. Boardman, your delivered testimony was wonderful.
I nominate you for FRA. But your prepared testimony falls way
short. On page five, your testimony says: Treating limbo time
as on duty time would shift the law from a safety frame of
reference to a fair labor standards frame of reference.
Now, I just have to observe that if it was good enough for
the Catholic Church to eliminate limbo, then it ought to be
good enough for the railroads.
Mr. Boardman. You stole my line.
[Laughter.]
Mr. Boardman. The reason that is there is limbo time comes
after the train has stopped. In other words, the brake has been
set in connection with the aviation example. So the reason that
we would say that is there is because there is no more
operating of the train, Mr. Chairman. So it is not a safety
issue.
What we don't want to become, nor do you want us to become,
is a labor department that looks to see whether there has been
a violation by two minutes or five minutes in a non-duty, non-
operating situation, sir.
Mr. Oberstar. Isn't there analogy between aviation flight
time/duty time and duty time and operating/running time on a
railroad?
Mr. Boardman. Is there an analogy?
Mr. Oberstar. Isn't there?
Mr. Boardman. Yes, there is an analogy in every one of the
modes, surface transportation and aviation, all operations.
Mr. Oberstar. In this so-called limbo time, the railroad
personnel are subject to order of the railroad, are they not?
Mr. Boardman. They are, yes. That is correct.
Mr. Oberstar. You cannot be at rest. I remember doing a job
in the neighborhood when I was a kid in high school for I won't
mention his name because he was pretty much of a taskmaster. He
said, say, Oberstar, while you are resting, why don't you pick
up that bag of stuff over here and carry it over there?
You are not resting anymore. If you are under orders, you
are sort of always on the edge, aren't you?
Mr. Boardman. I understand. I understand the analogy.
I guess the analogy, sir, that I would make is that as a
former truck driver, I was either at the wheel or I was on duty
but not at the wheel, not driving. My responsibility when I was
not driving certainly was not to let the truck roll away or let
something happen of a vandalistic nature, but it wasn't my job
or duty at that time to drive, and would it become my
responsibility, then I would have to go back on the logbook. So
the analogy that I see here, to some extent at least, is that
what we have is that the time is similarly done.
I do not know under an emergency situation, and I don't
pretend to know the depth that my friends behind me, or lack of
friends thereof, that are knowledgeable about the railroads
could really tell us about what happens after a person or a
crew ends their duty time, whether they are asked to do
something else, but I believe that is not the intent.
Mr. Oberstar. Your written testimony further suggests
replacing the hours of services laws with flexible regulations
based on modern scientific understanding of fatigue.
I guess that raises the question of whose modern scientific
understanding of fatigue we are going to accept and how
flexible those regulations are going to be. As I hear from
railroad workers, there is way too much flexibility as it now.
Mr. Boardman. I think what it means, Mr. Chairman, is that
as a result of the report that we finalized and published on
fatigue, and the understanding that aviation and NASA and all
have done about fatigue, is we know much more about the
circadian rhythms, and the activity_all the things that are
occurring to an individual.
For example, and this is a poor example but it is the one
that is coming out of my head right this minute, and that is
that you may be able to work longer during daylight and during
those hours where you are typically and normally awake and be
in a better cognitive state than you can be than if you are
working a graveyard or middle of the night kind of an
opportunity.
So our expectation is in the RSAC process, which is a very
deliberative process I can tell you, that we can work through a
lot of those issues to try to resolve them and come to a
conclusion of what would a Fatigue Management Plan truly look
like and what kind of flexibility makes common sense both for
the worker and for the railroad, and that is the kind of
flexibility that we are really looking for.
Mr. Oberstar. Thank you.
Mr. Rosenker and Mr. Hyde, is there limbo time? Is there a
counterpart to limbo time in other modes of transportation?
Have you investigated incidents like the Macdona, Texas
situation where they expired their hours of service and then
were left to wait for transportation back to point of origin
for over 10 hours?
Mr. Rosenker. I don't believe we have any type of similar
characterization of limbo time in any of the other modes.
Mr. Oberstar. Mr. Hyde?
Mr. Hyde. Sir, I don't have any information at this time
about the other modes that have been audited by my
counterparts. I will get back to you on that, though.
Mr. Oberstar. Mr. Shuster?
Mr. Shuster. Thank you, Mr. Chairman.
Mr. Boardman, in the proposal that we put forth-FE and I
want to ask all of you this-FE we have put down 276 hours,
which according to my research and according to much of the
testimony I have heard and talking to people in industry, it is
rare somebody is working 432 hours today. Two hundred and
seventy-six hours, is that a reasonable number of hours for
somebody in the industry to expect to not go over that time
according to what you have seen and your understanding?
Mr. Boardman. I think to answer that I would need to know,
I guess, over what period.
Mr. Shuster. One month.
Mr. Boardman. What we have found in terms of fatigue is
that it is a combination of how many shifts are worked. It is
also a combination of how much rest you have had before and so
forth, and that again is part of, Mr. Shuster, the flexibility
issue in terms of looking at a Fatigue Management Plan rather
than just doing it on the basis of the number of hours.
Two hundred and fifty hours a month is 3,000 hours a year.
A typical year is 2,000 hours, 2,040 hours on an 8 hour day, 40
hour week. So 276 hours--and I won't do the math fast enough,--
is somewhere between 3,000 and 4,000 hours a year in which case
everybody is then on overtime and probably working at a greater
rate than 10 hours a day for a 6 day week. So it depends on how
that time comes.
Mr. Shuster. Go ahead, Mr. Rosenker.
Mr. Rosenker. I would have to agree with the Administrator
that our recommendation is such that we believe there needs to
be a scientific study and analysis done. There have been a
great number of studies done on the aviation side.
There is no silver bullet answer that the maximum is this
number of hours if we are going to guarantee that someone is
rested and be able to effectively operate a locomotive, for
example. So we would believe that it needs to be studied.
A host of issues are involved. It is a complex issue
because of circadian rhythms and the schedules that you can
bump up to each other. You may start on a day. The next time
you start working, you might be starting to work at an odd hour
that takes you overnight. That can change the way you are going
to get recuperative sleep, restorative sleep.
So we would like to see a method where, in fact, it is
scientifically based, the creation of work schedules, rather
than just to say 12 hours is the max and if you get 12 hours
here, you can do another 12 hour break. Then, of course, you
are alert and able to work. That may not be right.
Mr. Shuster. Well, that leads me to the next question. What
is a reasonable shift for somebody?
In scientific studies, what have you come up based upon
what you have seen? Is it a 10 hour shift? Is it a 12 hour
shift and then you need 12 hours, 14 hours rest?
Mr. Rosenker. Again, sir, I hate to be vague about this,
but the reality is depending upon how you end up putting the
schedules together. If it is going to be, for example, five or
six straight days with the same schedule over and over and over
again during a day, you can do it longer than you may be able
to do it when you intersperse nights and overnights because at
that point you haven't been able to change the circadian
rhythm. So it has to be done in a scientific way rather than
haphazardly.
Mr. Shuster. How far off are we from that scientific
method?
We have had folks before us, and it doesn't seem to be a
whole lot of consensus. That is what you are saying to me now.
We are trying to figure that out.
Mr. Rosenker. We do know. We do know what the problem is
today, and that it is unsatisfactory. It has created an
environment where human error can occur and as a result of
human error, catastrophic accidents. We have seen it in a
number of the investigations that we have made.
I would leave it to the professionals that are regulating
this industry to come up with the appropriate science to offer
that to the industry.
Mr. Shuster. Mr. Boardman, do we have that appropriate
science to be able to say 12 hours on in daylight, 10 hours at
night, how much rest?
Mr. Boardman. I would like to get your focus off the hours.
I say that from the standpoint of the flexibility end of this
if you are only doing it by counting the hours.
The hours are important. Don't get me wrong. They are
important for two reasons, one, in terms of the total number of
hours that you really put out there. The unions understand
that, and they also understand that the railroad has to operate
its business. So if it cuts the hours too short and they can't
get to a reasonable terminal, the railroads have to add a whole
lot and reduce their profits and reduce the ability to pay the
unions. The unions understand that as well, I think.
The reason that we want to get this to the RSAC for is to
get at the flexibilities that you are asking about, that the
Chairman is asking about. In some cases, it could be based on
hours. Even the railroads today know that. Some of them run
seven days on, three days off, and then seven days on. Other
ones have straight picks and the same job every day, and they
are off on the weekends. There are a lot of variables.
The difficulty with establishing this based only on the
statute is that those variables will be impacted all over, and
there wouldn't be an ability. Even though you offer, and I
recognize that in your bill, Mr. Chairman, the ability to have
Fatigue Management Plans. Without any teeth in it, without the
ability for the railroad to manage their employees differently
for the future, there won't be an effective tool to be used in
the future.
Mr. Shuster. Thank you.
I see my time is expired. I am outnumbered up here, so I
wonder will I have an opportunity. I have a couple other
questions, some other things.
Mr. Oberstar. I turned the clock off for the gentleman.
Mr. Shuster. I appreciate that.
Mr. Oberstar. We are going to have a vote, though, I think
momentarily here. I will go to other Members, and then we will
break for the vote and then come back.
Mr. Shuster. Will there be a second chance?
Mr. Oberstar. Of course. Of course.
Mr. Shuster. Thank you.
Mr. Oberstar. Mr. Nadler?
Mr. Nadler. Thank you, Mr. Chairman.
Commissioner Boardman, the legislation that you have
suggested proposed repealing the hours of service statute and
replacing it with an FRA regulation.
It took the Federal Motor Carrier Safety Administration
from a notice of proposed rulemaking in 1996 until 2003 to
issue the final rule, but they were then sued and forced to
revise its rule. The next rule finally came out in 2005, and it
is being litigated again. So from 1996, we still don't have, 11
years later, a rule.
I find it hard to believe, given the difficulties in such a
rulemaking, that the current Administration would be able to
issue a final rule by the end of its term in 2008. According to
your section by section analysis, you want to run this rule
through the Railroad Safety Advisory Committee which has been
dealing with fatigue for years with no solution in sight. Then
you want to tackle hours of service for one category of
employee at a time, again, according to the section by section
analysis.
How will you get a final rule out by the end of 2008 under
those circumstances?
Mr. Boardman. I think, first of all, we will have a rule
right away when we put the statute into effect as a regulation.
So the existing statute will become the rule immediately, so
there won't be any chaos here. There won't be people not
understanding what they are going to do.
Mr. Nadler. Excuse me. You can determine if we say there
should be a rule, you can say the existing statute will be the
rule without any hearings and everything else?
Mr. Boardman. That is what we are going to have you do.
That is our proposal. What you would do is have that become the
initial regulation.
Mr. Nadler. Then you would go through the whole process for
years to see about revising the rule.
Mr. Boardman. It is not our intention to do it for years. I
understand the cut, but I believe that, if we have motivated
people_and I think we do_unions and railroads to resolve this
issue, then we don't have to wait forever for the RSAC to act.
We can pull it back.
Mr. Nadler. Okay, let me ask you a different question. Your
bill authorizes a Safety Risk Reduction Program to focus on
systemic safety problems. To describe it, you use an example
where you say where a traditional enforcement approach would
focus on finding cracked joint bars and securing their prompt
repair, your approach focuses on systemic issues such as a
process of deciding whether to use a joint bar or a weld, the
process for restoring joint bars and so forth.
My question is this: The bill bars any part of any record
the railroads provide to the FRA or that the FRA obtains
through some other means through the Safety Risk Reduction
Program from public disclosure. That seems pretty broad since
the rails could provide extensive information to the FRA under
the guise that it is for the Safety Risk Reduction Program. Why
shouldn't the public have the right to that information?
Mr. Boardman. I think that what we are talking about here
is when we ask the railroad to go out and look at its hazards,
when we are asking them to find the risks and then find a
methodology to reduce that risk, that is information that
should be protected except for enforcement.
Mr. Nadler. What information should be protected? What the
risks are?
Mr. Boardman. When they identify for themselves on their
railroads what might be necessary to improve.
Mr. Nadler. All right, let us hone in on that. A railroad,
FRA Rail, Inc. identifies that they have a problem with
switches. Their switches are somewhat defective, and they have
got to improve that.
Why should that be proprietary information? Why shouldn't
the public know that?
Mr. Boardman. Understand; one of the criticisms for
creating an FRA to begin with was that when you establish
minimum standards, then a railroad would maintain something
only to a minimum standard.
Mr. Nadler. Would what?
Mr. Boardman. I think when you originally established the
FRA, if you establish a minimum standard_
Mr. Nadler. They would only do the minimum.
Mr. Boardman. Then they would only do the minimum standard.
To some extent, that is true for some railroads, that if they
meet the regulation, it meets the minimum standard. We say it
meets the minimum standard. These guys, oversight guys over
here come and look at us and say, you need to do more than a
minimum standard.
Mr. Nadler. That just argues that you should raise the
minimum standard.
Mr. Boardman. Sir, let me finish.
Mr. Nadler. Yes. I am sorry.
Mr. Boardman. So the point here is that we are looking for
a railroad today to maintain or operate at much greater than a
minimum standard, especially in relation to the amount of
weight or activity that there is on the railroad today. Part of
what they have to do in order to do that is look at their risks
definitely for the future.
Mr. Nadler. I don't understand that argument.
Mr. Boardman. Okay.
Mr. Nadler. Obviously, you want the railroads to operate at
a higher than minimum standard. If they are using 286,000 pound
equipment, they are to operate at this standard. If they are
only using 263, then at that standard. Why don't you simply
raise the standards so that if they are operating at the
minimum standard you set, that is safe?
Mr. Boardman. Then we will have a new minimum.
Mr. Nadler. That is what I just said.
Mr. Boardman. Right.
Mr. Nadler. Why don't you do that?
Mr. Boardman. Then you have the same problem all over
again. There are railroads that would then maintain at that
minimum, and there are some of them that don't need to move up
to that because they don't have the amount of traffic, the
weight that is out there. There is a difference among the
railroads themselves, especially the smaller railroads.
We believe, Congressman, and I think it has become an
accepted kind of belief that one of the things that has to
happen with every industry that is out there today is they need
to find out what their hazards are and reduce the risks of
those hazards, and this is one way to do that.
Mr. Nadler. Yes, but what I don't understand, and my time
is expired, so I won't continue arguing with you.
Mr. Boardman. I am not arguing.
Mr. Nadler. Discussing. If you raise the minimum standard
to an adequate amount so they will only maintain the minimum
standard, what is wrong with that and why shouldn't all that be
public?
Mr. Boardman. I understand.
Mr. Nadler. Thank you. I yield back.
Mr. Oberstar. As always, a very lively discussion with Mr.
Nadler.
I would like to ask the forbearance of other Members so
that Mr. Lipinski could have his time. He is committed to a
time certain at the Rules Committee and will have to leave.
Mr. Lipinski. Thank you, Mr. Chairman.
It is clear as we are talking in this Congress about
climate change and national energy security, rail is an
important part of that equation. We need to do what we can to
ensure that we do use rail as much as we possibly can. It is
important that rail remains efficient. We have to do what we
can for rail infrastructure certainly, but rail safety is also
an important part of this.
I thank that Chairman Oberstar and Chairwoman Brown for
introducing this bill, and I look forward to going through and
working out what will work best for continuing to use rail
efficiently in this Country. Also, of course, the safety of
workers is very critical and the safety of all those who use
rail, but also with all the railroad lines going through my
district, I know how important safety is in all ways.
I want to focus on one particular issue here, positive
train control, and I want to ask Mr. Rosenker, first of all,
how long has PTC been on NTSB's list of most wanted
transportation safety improvements and why is PTC on the list?
Mr. Rosenker. It has been, and I happen to have brought a
copy of the NTSB's most wanted list, and it has been on our
most wanted list since the beginning in 1990, 17 years.
The condition or, if you will, the status of where we are
with the FRA on this issue is_we have three statuses: a green,
which means it is acceptable and progressing in a timely
manner; a yellow, acceptable response, progressing slowly; and
a red, unacceptable response. The color is yellow. It is
progressing slowly.
We believe it is time to progress in a much faster way, and
the provision which is dealt with in Mr. Oberstar's bill is a
good provision, we believe, because it puts a date certain. The
technology is there. It is a mature technology. Although it is
experimental today, in the period of time that the legislation
is talking about, significant improvements in the technology
will have occurred, and I believe, as a result, significant
numbers of derailments and collisions will be avoided.
Mr. Lipinski. Do you have any type or sense of measure of
how many accidents could possibly be obviated with PTC?
Mr. Rosenker. We did talk about 10 years that we took a
look at this, and we saw 52 that dealt with fatalities, not
just injuries but fatalities, and that there were approximately
500 injuries that could have been prevented as well. I think
there were 37 fatalities. We could only find data on about
half, 29 of the accidents, of the 52 that we believe that we
could end up preventing.
This technology is really the future here, and it is not
only technology that we believe can do so much for America's
railroads but technology in prevention. I must if I can have
the moment to compliment NHTSA. They, in fact, recognized the
importance of electronic stability control, a relatively simple
technology compared to PTC but yet a technology which, when
implemented by 2012 in all of the automobiles in our Nation,
will begin the process of preventing the deaths, and this is
projected between 5,000 and 10,000 people a year.
Technology has a wonderful place in accident prevention.
PTC is a place where, in fact, it will do a great deal of good,
and we believe it is now time to move forward on this
technology.
Mr. Lipinski. Thank you, Mr. Rosenker.
Thank you, Mr. Chairman.
Mr. Oberstar. I thank the gentleman.
I will go back to Mr. Shuster.
Mr. Shuster. Thank you, Mr. Chairman.
A question on grade crossings and trespassers,
overwhelmingly, the fatalities occur in these two categories
and just a couple of questions on the split jurisdiction
between the track which the railroads control and then at the
intersection which the State highway departments control. I
know there is something like 27 States that currently lack laws
regarding the rail crossing.
It seems to be a problem. Can you, Mr. Boardman, talk about
what are things that the FRA can do to improve that and is
there anything we can do here to improve that situation?
Mr. Boardman. Mr. Miller, if you could put my chart up for
me now.
Mr. Shuster, I don't know how well this is going to show
up. I kind of brought this along. I think this really kind of
tells the story.
It was a little better earlier. Jim or whoever is running
it, if you could back it up and make it bigger. Yes, there,
that works.
The fatalities are below.
Bring it up. Maybe it isn't going to work here.
The lower line you see headed down is the number of
fatalities, and the line that you see kind of going up 45
degrees is the amount of traffic, railroad traffic today. What
we are really seeing, when you combine that with what Mr.
Rosenker just said about the number of deaths and injuries or
deaths that they would actually reduce, I think he said between
5,000 and 10,000 injuries with the stability control, or
deaths.
Mr. Rosenker. Yes.
Mr. Boardman. Deaths. That would be 10 percent, about 10
percent to 20 percent of the number of deaths that there are
out there on the highway.
Part of the problem we are having with the state highway
departments is that the number is so low in terms of grade
crossing accidents, and that is what is really captured in the
state DOT books that they put out on their statistics every
year. You won't find it separately in here on highway grade
crossing accidents because it is in the total number of highway
accidents that are out there.
So that number is so low dealing with the state highway
departments. Every life is precious, but this particular part
of it doesn't rise to the level of need or where they are
spending the dollars as what we would like it to be as a
railroad agency.
Mr. Shuster. Mr. Rosenker, your thoughts on it, what can we
do?
I know there has been Operation Lifesaver and, of course,
we have some signage. What can we do to stop not only the grade
crossings but trespassers?
Mr. Rosenker. I can suggest, and we always say this when we
go to an accident, a horrible accident that involved a grade
crossing, grade separation is the simplest answer. Take it out
of play. It is not easy to do because it is expensive, but that
guarantees the separation between a motor vehicle and a train.
I went to a terrible accident that occurred on
Thanksgiving, the eve of Thanksgiving about two years ago in
Chicago. Seventeen cars were struck by a metro train.
Amazingly, no one died, but this was such an unusual traffic
crossing. It was built at such an oblique angle that you didn't
really realize you were sitting on tracks until it was much too
late and you were piled up bumper to bumper.
The State and the county finally said when we were so
adamant about grade separation because they had fatalities
before in the 20 some years that that crossing had been there,
that they finally decide to say enough is enough. We are going
to separate this grade crossing. They will make a little bridge
above it.
That is the ultimate answer, but I recognize with the
thousands and thousands that are out there, that is not always
possible. So you will have to use other technological
capabilities. I think the Administrator talked about some of
those.
But education clearly is an important part of that,
recognizing you will not win if you are going to try to beat a
train. You will lose. You can count on it.
Mr. Shuster. Mr. Hyde, more inspectors at the FRA, is that
something that would help alleviate the problem and is there
any evidence that more inspectors would, in fact, cause the
problem to decrease at the crossings?
Mr. Hyde. Well, that can be one solution. I wanted to
comment that while the number of grade crossing fatalities
certainly is small in comparison to the other modes--the
highway fatalities are very high, and I know alcohol impaired
driving is extremely high--there are still some low hanging
fruit that can be done, that can be attacked. That is one of
the things that we want to encourage the FRA to do, that is to
go after that low hanging fruit.
One of the elements that FRA can be doing is helping the
states create these action plans to address bad grade crossing
collisions where there is, for example, multiple collisions at
a particular grade crossing. They have done that in Louisiana.
There has been success there. The accident or the collision
rate has been coming down since they have implemented that
plan.
The other thing is that the Department has a very
aggressive goal to get the fatalities down overall, and
everybody has got to be doing a bit of their part. So we think
that the FRA can take some action here.
Mr. Shuster. Thank you.
Thank you, Mr. Chairman.
Mr. Oberstar. Mr. Boardman?
Mr. Boardman. I was just going to comment on that just very
briefly. Thank you.
We have 17 inspectors in the field right now on highway
grade crossing, trespasser inspectors, and we are working with
those communities. I think Kurt is right, that the kinds of
things that we have done in Louisiana, we need to do other
places.
We are also working with the commuter railroads, a
collision hazard analysis with those commuter railroads, and we
are having some good successes working with them, especially in
California and Florida.
They are one of the ones, and I am sorry Jerry is gone at
this point in time, but they are one of the ones where a lot of
the data that is out there is data that needs to be protected,
but you can't really have 100 percent mitigation for all of
those collisions. You really find that that is the case.
I think Congresswoman Napolitano, when I met with her,
identified a tremendous number of at-grade crossings on the
Alameda East Corridor that are of a very great difficulty in
terms of cost to find a solution to separating the grades and
having a community that is satisfied and still keeping the
economy moving. This is a very difficult problem.
Mr. Shuster. Is that number of inspectors, 17, up, down?
Mr. Boardman. That is up. That is up from last year. It is
up one. It is up in the last 10 years by double. It went from 8
to 16, 17.
Mr. Shuster. Thank you.
Mr. Oberstar. What I have found in my years of oversight of
safety is that more inspectors means more safety in pipelines,
in aviation, in maritime, the Coast Guard arena.
Mr. Boswell?
Mr. Boswell. Mr. Chairman, I got in a little bit late. Did
you talk about the deadhead time, the time that is spent in
limbo, earlier?
Mr. Oberstar. We have had some discussion, but it is a
lively subject and worth further discussion.
Mr. Boswell. Well, I don't want to overdo it.
Mr. Oberstar. I don't think you can.
Mr. Boswell. But I just am curious what their comments
might be about how to deal with that because it seems to me
like that the person is out there and puts in their hours, and
then they have got deadhead or wait and so on. Then it counts
against them, and they have to go back on duty. Would you talk
about that a little bit?
Mr. Boardman. Certainly, Congressman. Let me, at least for
my own purposes, define what you have identified.
A crew comes in first in the morning and is transported out
to its duty location. That is an on duty time that contributes
to the overall total amount of time, whether it is going to be
the 8, 10 or 12 hours that they would actually work.
Then they move their train or do whatever their
responsibility is to the end, until they outlaw or come out of
time which would be, let us, for example, say this case is 12
hours. At that point in time, they may be in a place that they
have to be relieved by another crew that will be on its way out
to them.
The decision had become that that particular time, while
paid for, is limbo time and often times is confused, that it is
not paid for. It is paid for. But that is the time that is
neither working nor is it a rest time because in the statute
you are required to give the proper amount of rest time, which
is normally eight hours. It can be 10 hours of rest time,
undisturbed rest time.
Then the time that it takes to get that same crew to a
terminal or a proper relief point is also time that is not
worked, but again it is time that is paid. In many cases, this
is where the difficulty comes in in terms of determining
whether they have the proper amount of rest time after the duty
time. That is really where we are, I think.
Mr. Boswell. Well, of course, you know what I am driving
at. I think Mr. Oberstar is too. That is fatigue, and that is a
contributor to the accidents. So what are we going to do about
it?
Mr. Boardman. In our particular proposal, we believe that
we should regulate the hours of service and that the statute
would come into the FRA as it currently exists and that we
would use that as the new regulation and have a process with
the RSAC Committee to come up with a new solution that
addresses fatigue using the best science available today.
Mr. Boswell. I was in a different kind of service one time,
and it seemed like we had a lot of that same situation. They
called it, in my case, the military. What are we doing for the
worker out there that have got to have the pay, got to have the
job, and yet he has got to be held responsible? What are we
doing for him or her?
Mr. Boardman. I am not sure I understand the question, sir.
Mr. Boswell. I am not sure that I have heard a solution.
Mr. Boardman. Okay. We don't regulate their hours of
service at this point in time. We have no right to go out and
do anything from a regulatory standpoint.
Mr. Boswell. But you are concerned about safety.
Mr. Boardman. Yes, sir.
Mr. Boswell. So what are you recommending then?
Mr. Boardman. Our bill is that we would want to regulate
the hours of service.
Mr. Boswell. Mr. Oberstar, maybe you could help me out here
a little bit. I don't think I am getting through.
Mr. Oberstar. You are not. It is not an illusion. The
Administration's bill or proposal is very unfuscatory.
Mr. Boswell. Is that French?
Mr. Boardman. Now, you are going to have to help me out
here.
[Laughter.]
Mr. Boswell. Did you slip a French word in on me there?
Mr. Oberstar. [Phrase in foreign language.]
Mr. Boardman. I need help.
[Laughter.]
Mr. Oberstar. Mrs. Napolitano?
Mrs. Napolitano. Thank you, Mr. Chair. I was just going to
ask you, what does that mean?
I just want to thank Mr. Boardman because his staff has
been exceedingly helpful when we had derailments, rail
derailments in my area, and they were very, very helpful. So
thank you for that.
My question relates to the States who can certainly play a
very important role in assisting the FRA with ensuring the
safety along the rail lines. As you well know, I have a lot of
that in my area. Why has the FRA been so reluctant to allow the
States to regulate the railroads locally in order to provide a
safer environment for their residents?
Do you think Congress should modify the section of the
Federal Law to give the States regulatory authority where it
does not exist currently, knowing that the National Conference
of State Transportation Specialists, the Federal Rail
Administration's Association of State Railroad Safety, program
managers, the California PUC, public utilities, the National
Association of Regulatory Utilities and the California State
legislators are all endorsing the proposal to be able to allow
States rail regulatory authority?
Now apparently the Federal courts have not allowed the
States to preempt Federal law, and that can play havoc. Like
anything else, I think we need to take a look at how we should
be able to see how they can be helpful, rather than hindering
the ability to be able to ensure safety at the local level.
The states argue that their safety regulations are entirely
consistent with the FRA's regulations and are not an ``undue
burden on interstate commerce.''
Would you address that, sir?
Mr. Boardman. Yes, ma'am. I appreciate the fact that we are
working together to try to resolve some of these issues, and we
work very well with California on many of these issues, but we
don't see eye to eye on this preemption issue. As a matter of
fact, Congresswoman, when I was Commissioner of Transportation
in New York, I might have provided some of those arguments
myself when I had a particular railroad that I wanted to do
something different with.
Mrs. Napolitano. What made you change your mind?
Mr. Boardman. Becoming the Administrator and understanding
that it is particularly important to have the same regulations
in New York as we have in Pennsylvania that we have in Ohio,
just like it is important that the laws generally are the same
on the interstate highway system or any of the surface
transportation modes.
We need to do a better job; we need to make sure that we
are providing the assistance to the States and the regulations
necessary for them to hold railroads accountable through and
with us, and we have agreements with about 30 States with 160
inspectors that we work well with.
So we prefer that those kinds of relationships grow and
that you not have a hodge-podge, because we believe that some
States, just like not all States participate with us on a State
program. There will be some States that would have no
regulation. There would be other States that would have very
different regulations. It would be almost impossible for a
railroad that is trying to run its train from California to
Chicago, or from Chicago on to New York, to be able to
understand what those regulations would be.
Mrs. Napolitano. I find that argument a little weak, sir,
because there are many regulations that have been implemented
that you could argue that different States would take
differently.
But I certainly have an opportunity to be able to talk to
some of my State regulators, the legislators and the California
PUC and others. In my long history, kind of long, being on City
Council and being on State, I have dealt with many of those
issues before, and let me tell you it is not easy to bring the
railroad to the table, even asking CPUC, California Public
Utilities Commission, to come in and take a look or listen to
the arguments that cities have in regard to some of the
problems they have with the railroad going through their
communities.
So to say that it would be a hodge-podge, it would help
communities tremendously, working with the railroads, of
course. I don't mean to sound like I am trying to be
condescending to anybody, but working together to be able to
find out what is it that we can do to be able to effectively
assist the communities in helping the FRA and working with the
railroads to come up with a solution to be able to work better.
Mr. Boardman. I will find a better way to help you,
Congresswoman, to get the railroad to the table.
Mrs. Napolitano. Well, the railroads have been very, very
receptive in my area because we have had long discussions,
especially with Union Pacific. I haven't had an opportunity to
sit with the BNSF, but I will do that. I don't have a problem
asking them to come to the table. That, I can do.
I think what the communities, and I am not just talking
about my own area but many of the areas who do not have the
background or the expertise or don't know how to begin the
process of being able to speak to them openly and be able to
get that information to be able to make it better for the
community and for the railroad for that matter.
Mr. Boardman. I understand.
Mrs. Napolitano. Thank you.
Thank you, Mr. Chair.
Mr. Oberstar. With Mr. Shuster's indulgence, although we
normally come back to the Republican side, Mr. Higgins has been
waiting a long time, and I will ask him to take his five
minutes. Then we will break for the pending vote.
Mr. Higgins. Thank you, Mr. Chairman.
This is on the issue of track inspections to Mr. Boardman.
In response to my request last December that your Agency
conduct a comprehensive inspection of the integrity of the rail
overpasses in Erie and Chautauqua Counties, your office had
responded that the Agency lacked the resources to conduct a
comprehensive inspection, and thus the investigation was
targeted at the two overpasses where the derailments had
occurred.
My question is how many more inspectors would your Agency
need to conduct a targeted comprehensive two county inspection
of the rail overpasses?
Mr. Boardman. Brian, I don't know. Excuse me, Congressman,
I don't know right this minute how many it would take. I can
look into that.
[Information follows:]
[GRAPHIC] [TIFF OMITTED] T5921.011
I think one of our difficulties at the time is we had a lot
of things going on, especially up in the northeast, east
Rochester. We had them in Kentucky at the time, Brooks,
Kentucky. We were in a situation where for one weekend there in
January, I had taken 20 percent of my workforce and did a
focused inspection on that railroad. So we were just in a
situation that we couldn't look at all of those.
But we have at this time, Congressman, gone through a track
inspection process and are continuing that all out, throughout
New York State on all of the major railroads and most of the
smaller railroads, and we will continue to do that.
Mr. Higgins. Is your Agency or the Administration seeking
additional sufficient funds to hire additional inspectors to do
this?
Mr. Boardman. We asked for approval, I believe, for a few
more inspectors, but we have grown as an Agency on inspectors
by about 50 inspectors in the last 10 years. That is kind of
where we are at this point in time. We put them on as we saw
the need in a specific area to improve and strengthen.
Mr. Higgins. But wouldn't the Agency welcome the additional
inspectors that are called for in the rail safety legislation
under the sponsorship of Chairman Oberstar?
Mr. Boardman. Well, there are several things that we would
welcome. I mean nobody that is in his right mind would stand
around and say I don't want any more resources to do what I
need to do, but we think there is a balance that you have to
have in terms of not only inspectors but research money. We
just put two new rail inspection vehicles on T19 and T20, where
we think part of the solution is technology.
So it is a look at using and changing skills for the
future, making the railroads do more risk reduction themselves.
That is why we are looking at that. It is kind of the concept
that we have to have a balanced and full plan.
Mr. Higgins. Let me just switch to the issue of enforcement
and the imposition of fines for track defect. What is the
maximum fine assessed to a railroad for a track defect
violation?
Mr. Boardman. I think the maximum that we could charge
anybody is $27,000 per occurrence per day, but that would have
to be after they didn't do what we told them to do. There is a
sequential process.
Mr. Higgins. How many fines were issued in 2006?
Mr. Boardman. I could get back to you with that.
Mr. Higgins. Okay.
To Mr. Hyde, are enough fines being levied and are fines
set at a high enough level to induce railroads to aggressively
detect and correct potentially dangerous track defects?
Mr. Hyde. We have just started an audit in that area,
looking at the penalties assessed, how they have collected on
those penalties and how it correlates to the violations that
were issued.
One of the things that we noted that when we were looking
at the reporting conditions for grade crossing collisions, for
example, reporting to the NRC, we found that one in five
serious grade crossing collisions were not reported and that we
encouraged FRA to begin issuing violations. They have started
doing that. In the past two years, I think they have issued 17
violations in that area.
In addition, with the other reporting requirement, they
have started doing reviews of the railroads. We would have to
look and see whether they have, in fact, started issuing
violations for those failures to report to FRA, but I do know
that the FRA has been proposing to increase the size of the
fine for that type of violation.
Mr. Higgins. Okay, my time is almost up. Thank you, Mr.
Chairman.
Mr. Oberstar. We have a couple of minutes.
Mr. Diaz-Balart?
Mr. Diaz-Balart. Thank you, Mr. Chairman. I am fine. I may
have something when we come back.
Mr. Oberstar. We will recess for the pending vote and
additional votes and return as soon as we possibly can. I hope
within 15, 20 minutes.
I just want to put Mr. Rosenker on notice and also Mr.
Boardman and Mr. Hyde to address the issue of monitoring
railroad radio communications similar to the voice recorder in
aircraft as a matter that I would like to explore further, and
Mr. Shuster, I am sure, has further questions.
The Committee will stand in recess.
[Recess.]
Mr. Oberstar. The Subcommittee will resume the hearing.
When we broke, I said I want to pursue a matter among
several items in the Administration bill authorizing the
monitoring of railroad radio communications. In Mr. Boardman's
testimony, he made some very pertinent observations that FRA is
allowed to monitor radio communications only in the presence of
an authorized sender or receiver, a railroad employee, and yet
when railroad employees know that FRA is present, they tend to
be on their best safety behavior, a keen observation.
But there are limits proposed by FRA to recording of
communications, and they appear to parallel those of the
cockpit voice recorder in aviation. In aviation accidents, the
recording, the voice communication is not released except under
very rare circumstances but maintained for investigatory
purposes and for purpose of improving safety in the future.
Mr. Rosenker, what are your thoughts about the proposal if
you have had the opportunity to review it?
Mr. Rosenker. We would be in favor of two phases of the
area. First, the area of potential monitoring on a random basis
of communications, we believe would be quite helpful to
understand what is really happening, what is being communicated
on the railroad.
Secondly, a device similar to what we have in the cockpit
voice recorder would be extremely helpful and, again, should be
treated exactly like the way we treat cockpit voice recorders
in aviation. Transcripts after an accident only, after an
accident would be potentially released and examined in the
docket. The actual voice recording itself would be held without
the ability to be used other than in the party examination for
forensic purposes.
Mr. Oberstar. It is in the Administration bill. It is also
in the bill that I have introduced. I think those safeguards
can be a very useful safety tool.
Lufthansa, in the late eighties, 1988, 1989, did an
experiment with its flight deck crews of having a television
monitor in the cockpit to help pilots understand when they call
out an action, whether they actually did what they called out.
The flight deck crews were surprised on viewing the video
afterwards to see that there were several missteps. It helped
them immensely, but they, as U.S. pilots, resisted having a
permanent video camera in the flight deck.
Let us see. There were some other points that I wanted to
pursue.
The railroads would say that the provision in my introduced
bill that would allow train crews and signalmen 24 hours
consecutive off duty within a 7 day period should be extended
to require 24 consecutive hours off duty within an 8 day
period. I wonder if you have any basis for or whether there is
a basis for judgment one way or the other in light of your
accident investigation of the event in Anding, Mississippi,
where there were a number of consecutive days on duty that
affected work performance.
Mr. Rosenker. Well, Chairman, again, I want to applaud the
Congress and particularly your Committee for the great work
that it has done in preparing this legislation.
As I said earlier in my testimony and even in response, I
believe, to the Ranking Member, there is no silver bullet
answer to say this will guarantee a 24 hour separation from the
last time of duty to the time you come back, that that will
guarantee that fatigue will not exist and an engineer or
crewman will come fully rested and ready to work.
We would believe that it is best left to a scientific
analysis from study before we would say that is the answer. The
concept of recognition of fatigue and the amount of hours of
service which is described in your legislation is a great,
great first step forward, but I hate to hang my hat on it and
say that is the answer until the science which we have
recommended to the Administrator, the analysis, the study of
fatigue itself in this community, we believe would provide us
the best evidence to make good fatigue management decisions in
scheduling.
Mr. Oberstar. The constant refrain and insistence on
science when it comes from this Administration, I am highly
skeptical. They want science. They look to study global climate
change until we are all inundated by the flood and then say,
oh, my goodness, that last scientific report wasn't quite good
enough.
In stress in air traffic controllers, in the late
seventies, there were 27 different studies of stress. Each time
the study was completed and submitted to the FAA, they found a
reason to reject it. Finally, the major study that was so
comprehensive that could not be avoided, they didn't do
anything.
Now I have been on panels with Mark Rosekind of NASA AIMS
and William Dement of Stanford on several occasions. I think
they are top fatigue specialists and authorities in the world,
and they would not support what the railroads are proposing and
what their current practice is. They would more come down and
decide of the recommendations of the NTSB.
Mr. Boardman, how much more study do we need?
Mr. Boardman. We don't think you need any more study. We
think that we have a report that tells us the kinds of things
on our fatigue report that are important.
Mr. Oberstar. That is refreshing to hear. We don't need any
more study. Go ahead.
Mr. Boardman. Well, my researchers might say, wait a
minute. But I think we are ready at this point in time to get
to business, and that is why we are proposing what we are
proposing.
Mr. Oberstar. Mr. Shuster?
Mr. Shuster. Thank you, Mr. Chairman.
Talking about studies, I know that years ago the debate on
airbags, and I forget her name. Joan Clayborn?
Mr. Oberstar. Joan Claybrook.
Mr. Shuster. Right. She pushed for them, and then later on
here in the past couple of years she came out and said that
maybe it wasn't the right thing or maybe we did it the wrong
way. So I think on both sides of the political spectrum, people
push for something and then all of a sudden, years later, oops,
maybe we did the wrong thing.
I certainly don't want to debate you on global warming here
today, but as I start to learn more and more about it and the
percent of the carbon put in the atmosphere, it is very, very
small, what we put in through our cars and our trains and power
plants, but anyways, that is for another time.
Mr. Oberstar. We could have lovely debate on that one.
Mr. Shuster. Technology and study, positive train control,
I know there are some operations out there that are employing
it. The law, I think, says 2014, it is to be deployed. Where
are we in the study of it and what is your view and what is the
potential benefit as far as safety goes?
Mr. Boardman. Well, we stopped the study that was going
forward or that we were doing in Illinois, figuring that we had
gotten what we needed out of it at that point in time. I think
we have approved the ETMS system for the BNSF Railroad, and
they are out beginning to employ it. It is the product safety
plan that we really were looking for.
But we have the other railroads that have the way that they
want to do positive train control, and they are making their
judgments right now in terms of how do they deploy this, how do
they do it in a rapid enough fashion in the areas that they
know they need it and that they can afford it from a standpoint
of the competitive environment that they are in.
You know I can't take Mark's little most wanted list and
color it green at this point in time because he makes those
decisions, but I think what he is trying to say is that we are
pleased that we are actually making some progress here. We are
also pleased, and we see the industry as doing that and
embracing it and moving forward.
Mr. Shuster. Is 2014 a reasonable amount of time?
Mr. Boardman. I don't know. I don't have an answer to that.
Mr. Shuster. Mr. Rosenker?
Mr. Rosenker. Ranking Member Shuster, we do believe that
2014 is a reasonable implementation date. The technologies are
there. It is a decision on which systems do you wish to use.
I am reminded of the time when there were discussions of
many years ago when I was involved in high definition, the
creation of high definition televison. There were 41 proponents
that said they had the answer of what high definition
television was going to be for the United States and not just
the United States but the world. As the systems began to
compete with each other for who was going to have the better
system, we realized none of them had the ultimate answer.
The system came about with what they call the Grand
Alliance. About 10 companies got together, the best of all of
the systems out there, to create what we now know as high
definition television, and the system originally may have come
out at a very expensive figure, perhaps two, three, four, five
thousand dollars for these televisions. Today, you will buy
them for $699.
I am not suggesting that you are going to get it that cheap
in positive train control. But the one thing about technology
we do know: The technologies get better. The technologies get
more reliable. They get smaller, and they get cheaper as we
evolve through the future of these technologies.
We have to make a decision in saying it is now time to do
something about positive train control. It will be a device
that, in fact, will save lives. It will begin the process of
assisting humans when they may do the wrong thing for whatever
reasons, whether it is distraction, whether it is fatigue,
whether it is lack of training. Whatever it is, positive train
control will help and begin to stop the train and brake the
train at the appropriate times if, in fact, it is not being
done by the crew.
Mr. Shuster. How many systems are out there that you know
of?
Mr. Rosenker. Oh, there are a number of systems. I know
BNSF has one. I think the Alaska Railways is experimenting with
one. Amtrak has a form of it on the northeastern corridor.
These are good systems.
I don't want to be the decision-maker on which system is
best. That is for the industry to decide.
Mr. Shuster. Right.
Mr. Rosenker. But it is time to say it has now evolved. It
is mature enough that you can begin to use it, and it will get
better. These things are scalable in many cases. There will be
newer and more interesting applications of positive train
control as we get into the future as we have seen with other
technologies.
Mr. Shuster. Thank you.
Mr. Oberstar. Mr. Boardman, we have been, in the many weeks
of developing this legislation and years previously of creating
its predecessors, given to understand that the six-year time
for implementation was the time that those in the industry and
your associates, current and preceding, said that is about the
time it would take to actually implement such a move. You said
you didn't know when.
Mr. Boardman. I just don't know right this minute, Mr.
Chairman. I can go back and look and see.
I guess, is it going to be just areas right now that are
signal territory? Are we talking about non-signaled territory
as well? I don't know.
Mr. Oberstar. I don't think we would legislate where. I
think we would give regulatory flexibility to apply such a rule
in the highest need and highest incident areas.
Mr. Boardman. I promise you an answer. I just don't have it
today.
Mr. Oberstar. That would be useful.
The wonderful thing of the NTSB, Mr. Rosenker, and I have
described it over years, is that it is normative. You do have
to be somewhat sensitive to what it costs to implement what the
Board recommends, but your job is not to do benefit-cost
analyses. The railroads claim that the costs of implementing
positive train control is too high in comparison to benefits.
Thank goodness we have the Board, and we also have the
Inspector General's Office. The Federal Railroad Administration
has to do the implementation. It is like the Corps of Engineers
when they have to go out and do analysis on a project. They
say, well, yes, it would provide flood control, but the cost is
way greater than the one house that it protect, for example.
But this argument about cost is not new. Let me go back to
the predecessor Committee on Railroads in a hearing they had in
1969. Mr. Thomas Goodfellow was President of the Association of
American Railroads, and he said: ``In these difficult
circumstances, to add to already severe inflationary pressures
by imposing costly restraints on hours of service of railroad
operating employees would clearly be contrary not only to the
interest of the railroads but to the national interest as
well.''
My God, we have heard this all over again and again. Thank
heavens, I have been here long enough to have heard most of it.
[Laughter.]
Mr. Oberstar. Does the gentlewoman from California have
anything further?
Mrs. Napolitano. Mr. Chair, I totally agree with you
because I hear those arguments in many other areas also.
But I would like to just comment briefly on the issue of
the joint bar simply because that was one of the areas that
caused an accident in my immediate area and the fact that there
was no technology that could see through the epoxy to be able
to determine whether there was indeed danger. Come to find out,
after the report finally came to me about a year and a half
later, there had a prior crack that had not been detected over
and above the one that really caused the accident.
So I would hope that there would be enough funding and
support to be able to get the research and development one, so
that this kind of an accident in the future can be prevented.
Thank God, there was no loss of life or injury. There was
loss of property. But, in essence, the laws need to also
protect the people, not just the railroads.
So I would appreciate any information that can be
forthcoming because they have talked about welding the bars.
They have gone in and done a whole bunch of infrastructure
repair by taking off the bars and putting cement bars. My
concern at this point is just on a common sense basis. If you
replace wooden ties with concrete bars and you have an
excessive amount of traffic, how long before that concrete
starts breaking up?
I am talking about research and development. How long did
they actually go through and determine that this was the best,
cheapest or whatever economic way to deal with that?
While you may know the answer, my constituents certainly
don't, and I certainly would want to know and have the
information to be able to give to them to ameliorate a little
bit of the concern they might have over the safety of their
area.
Mr. Boardman. I understand. I think it was a general
concept of what we need to do in terms of research and
improvement. We have an automated joint bar detection program
that is underway. It is actually now being marketed, and we
have some railroads that are beginning to purchase that
equipment and deploy it. It is also being improved as we go
along, and we are well aware of the NTSB wanting us to even
move further in terms of, especially, plug rail and figuring
out how we are going to be able to improve that as well.
So those are areas that we are spending time on, spending
resources on, and we hope to have even a better future in the
automated detection system.
Mrs. Napolitano. Is there any plan to be able to oversee
how many of those joint bars will actually be checked for
cracks as this equipment?
The railroads have an option to buy it or not to buy it,
right?
Mr. Boardman. That is correct. We are encouraging them to
do that. They still have an obligation to get out and look for
cracks in those joint bars themselves, but this is a technology
that allows them to do it quicker and we think better in the
end, and that will be good for the entire industry.
Mrs. Napolitano. Thank you, Mr. Chair, for your indulgence.
Mr. Oberstar. Mr. Brown is here, and I acknowledge the
gentleman from South Carolina.
Mr. Brown. Thank you, Mr. Chairman, and thank you gentlemen
for coming and sharing this information with us.
Mr. Boardman, in examining the Federal Railroad
Administration's web site, I noticed that the Administration
had already developed the National Rail Safety Action Plan
which includes action items and deadlines. Can you talk a
little bit about how this plan compares to the plan called for
as part of H.R. 2095?
Mr. Boardman. The plan_thank you, Congressman_is a plan
that will be strengthened by the kinds of things that are being
talked about in the bill. In fact, one of the key elements of
this Rail Safety Action Plan is making sure that we are using
the proper data to determine where we need to apply our
resources, whether it be inspector resources or in any of our
regions across the Country.
So we are supportive of taking that Rail Safety Action Plan
and accelerating our research as the Congresswoman over here
talked about in terms of what is important, especially in the
area right now of hazardous material tank car inspections and
focusing our inspections for the future. We will make those
improvements. Thank you.
Mr. Brown. Okay, thank you very much.
My next question is to Chairman Rosenker. Grade crossings
come under many different jurisdictions. From a safety expert's
point of view, what are some of the challenges this situation
brings when it comes to ensuring that a single crossing meets
safety standards?
Mr. Rosenker. Sir, I talked earlier about the best
solution. Unfortunately, the best solution is not possible
throughout the United States. The best solution, of course, is
grade separation. Where we can do that, we heartily recommend
that, and we can guarantee at that point you won't have a grade
crossing problem.
Next to that, technology and also education. We have worked
closely with the Administrator. This is a combined railroad/
highway issue. I wish I had the silver bullet for the answer.
There are too many people that are dying annually at these
grade crossings. Too many of them believe they can throw the
dice and win. I said it earlier. I will say it again. No one
wins against a train. Unfortunately, I have seen some horrible
results of folks that have tried to throw the dice and lose.
The only thing I can suggest is what Operation Lifesaver is
doing and more enforcement from the States and local
authorities. As a highway issue, I believe we will go a long
way, but technology will also have to play a significant role.
Mr. Hyde. Congressman, if I can add to that, that is true.
There is not any one single magic bullet. There are a number of
different challenges at these grade crossings. You can even put
in the automatic gates, and I have seen videos where cars go
around those gates.
But you have to use a multiprong approach in order to
ensure better safety at these grade crossings. Having the
education, doing driver education, we have seen data out there
where a number of the accidents that are occurring, the
collisions that are occurring are in the 18 to 25 year old
range. There is also information out there that many of the
accidents are caused by male drivers, so you have to target
your education to that cohort in order to change their
behaviors.
Mr. Brown. Thank you.
Thank you, Mr. Chairman.
Mr. Oberstar. On that score, I would simply observe that on
our Committee inquiry in Europe, meetings with the European
economic community on the Open Skies Agreement, euro control
and European Safety Agency, we traveled from Brussels to Paris
on the TGV the day after it set the world speed record. Not the
same train, we did the Thalys, not the main line TGV, but this
was not shabby. This was 185 miles an hour.
With an opportunity to be in the cab with the locomotive
engineer, I asked, do you have any people who fancy challenging
the train?
He said, oh, yes, along about our late runs, 11:00 at
night, we are doing 185 miles an hour, and there is always some
fool who wants to try to outrace the train.
Now, there are no crossings. When they get up to 100 miles
an hour, they lose control of the car and then fatalities
result. So madness is not confined to the United States.
[Laughter.]
Mr. Boardman. Mr. Chairman, are you saying they are mad in
France?
Mr. Oberstar. Belgium.
Mr. Boardman. Oh, Belgium, sorry.
Mr. Oberstar. And France.
Mr. Boardman. I didn't know with the most recent election
in France.
Mr. Shuster. I thought they stepped in the right direction
in the last election.
Mr. Oberstar. It was quite a step in the right direction,
yes, depending on who you are and which party you are in
France.
[Laughter.]
Mr. Shuster. I wanted to make a point about the technology
and the positive train control, and I looked back to the
airbag. When I go back in history, I am always on shaky ground,
talking to the transportation historian or with the
transportation historian next to me. But as I recall in 1979,
there was a big fight over the airbag, and I believe at that
time it failed. Eventually, though, the Federal Government
passed a law and put in place a timeline to put airbags into
cars.
What really caused the airbag to put in the car in mass
numbers was that Lee Iacocca of Chrysler decided or saw or
identified the marketplace would accept an airbag. So he used
it as a marketing tool and helped to save the company by
putting airbags in cars. Today, people don't have to have the
side airbags, but they purchase them because of the safety
involved in them, and it comes down to companies, people, all
look at the cost-benefit of a technology.
I think we certainly want to be as safe as we can out
there, but companies and people don't want to spend money on
technology that may work or may not work.
I think that if we open this debate up, and again I am new
to this Committee, so I may not have the parties right, but I
think there was a debate that occurred over the last couple of
years in this industry and some wanted positive train control
because they could go down to one man crews. When you look at
it from their side, they could increase their capacity greatly.
Buy more locomotives without having to find hundreds of
thousands of new people. If companies can do those things, then
they are more apt to say, okay, we will take the risk.
But there were some that didn't want that to happen for
various reasons, whether they were other companies or whether
it was labor. They were concerned about that.
I think when we are talking about technology, we need to
make sure here in Congress where we are pushing forward
solutions but not burdening industries, companies with what we
think may work and instead look at the cost-benefit analysis.
If we are going to mandate that companies do certain things, if
people have to buy airbags, then we have to decide whether the
government should foot some of that bill.
But if we let the market work and let the process go
forward, I think at the end of the day private industry,
businesses will purchase those technologies, and things will
get better for all of us involved when you deploy that type of
technology.
Mr. Oberstar. The gentleman makes a very thoughtful
observation. In that 1969 testimony that I cited, the President
of the AAR referenced tax credits that were made available by
Congress to stimulate some of the safety initiatives, and I
think that is entirely appropriate. Wherever we can submit it,
we ought to do that. We ought to provide such assistance.
I also remember the debate in aviation in 1985 and 1986 and
1987 about aircraft coming too close to each other, near mid-
airs, near misses in the air, and no one knew how near was near
until we finally pushed FAA to make a definition, 500 feet. At
500 feet, you can just about see what the guy is eating in the
other airplane.
Then the argument was: Oh, TCAS. No, this TCAS 1 is not
good. We have to wait for TCAS 2 which will tell you to move up
and down in addition to moving to the left or to the right.
Then two airplanes collided over Cerritos, California, and
there were fatalities.
It was a Member of our Committee, Ron Packard, who
represented that district, who came to me and said, we have to
legislate. We have to require the FAA to install traffic
collision avoidance systems and mode C transponders aboard
airplanes and use them--from a right conservative Member of
Congress.
I said, you introduce the bill, and we will hold further
hearings on it.
We did, and we moved that bill through the Subcommittee and
the Full Committee. Passed the House. Passed the Senate. All
the whining from the airlines went away because they knew if
they didn't, people in droves were going to be reluctant to get
on board airplanes. So, yes, there is a consumer choice at the
end of all of this.
You have all been very forthcoming and patient. There are
many other questions that I would like to pursue as we could
probably do this better in a roundtable than at the hearing
table. So we hold you excused and thank you for your testimony.
Mr. Boardman. Thank you, sir.
Mr. Shuster. Thank you, Mr. Chairman, Ranking Member,
distinguished Members.
Mr. Oberstar. Our next panel waiting anxiously for their
turn at bat: Mr. Hamberger, President and Chief Executive
Officer of the Association of American Railroads, familiar to
this Committee room, having worked in it once and having
testified here many times; Mr. Ed Wytkind, also a frequent
witness and voice at our hearings, President of the
Transportation Trades Department of the AFL-CIO; Mr. John
Tolman, Vice President and National Legislative Representative
for the Brotherhood of Locomotive Engineers and Trainmen, the
International Brotherhood of Teamsters; Mr. James
Brunkenhoefer, National Legislative Director of the United
Transportation Union; and Dan Picket, International President,
Brotherhood of Railroad Signalmen; Martin Durbin, Managing
Director, Federal Affairs, American Chemistry Council, welcome.
Oh, yes, I want a copy of that photograph taken of Mr.
Hamberger and Mr. Wytkind that close together. That may be the
last time.
Mr. Hamberger. We have broken bread together on several
occasions in a polite way.
Mr. Oberstar. Mr. Hamberger, you are first.
TESTIMONY OF EDWARD WYTKIND, PRESIDENT, TRANSPORTATION TRADES
DEPARTMENT, AFL-CIO; JOHN TOLMAN, VICE PRESIDENT AND NATIONAL
LEGISLATIVE REPRESENTATIVE, BROTHERHOOD OF LOCOMOTIVE ENGINEERS
AND TRAINMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS; JAMES
BRUNKENHOEFER, NATIONAL LEGISLATIVE DIRECTOR, UNITED
TRANSPORTATION UNION; DAN PICKETT, INTERNATIONAL PRESIDENT,
BROTHERHOOD OF RAILROAD SIGNALMEN; EDWARD HAMBERGER, PRESIDENT
AND CHIEF EXECUTIVE OFFICER, ASSOCIATION OF AMERICAN RAILROADS;
MARTIN DURBIN, MANAGING DIRECTOR, FEDERAL AFFAIRS, AMERICAN
CHEMISTRY COUNCIL
Mr. Hamberger. Thank you, Mr. Chairman, Mr. Shuster,
Congresswoman Napolitano. Thank you so much for the opportunity
to be here. On behalf of the Association of American Railroads,
I would like to thank you for the opportunity to address rail
safety and specifically, Mr. Chairman, the bill that you and
Chairwoman Brown introduced.
The views contained in my statement also represent those of
the American Short Line and Regional Railroad Association, and
I would like to submit for the record a letter from that
association's president, General Richard Timmons, in which he
endorses my testimony and emphasizes five provisions of
particular concern to smaller records.
Mr. Oberstar. Without objection, that letter will be
received for the record.
Mr. Hamberger. Thank you, sir.
We recognize that the primary purpose of H.R. 2095 is to
improve safety, and the railroads wholeheartedly share that
goal.
Let me start out by pointing out that the rail industry's
safety record is excellent and getting better. Since 1980,
railroads reduced their overall train accident rate by 69
percent, their rate of employee casualties by 81 percent, and
their highway rail grade crossing incident rate by 76 percent.
The employee casualty rate and the grade crossing incident rate
in 2006 were at their lowest levels ever while the train
accident rate was just fractionally higher than the record set
a few years ago.
I would emphasize that we believe that the accident rate is
the best metric rather than the raw numbers of accidents since
the rate reflects the growth in traffic which we have
experienced in the past few years.
I also want to express strong support for the provision
that authorizes funding for the design, development and
construction of a tunnel testing facility at TTCI in Pueblo,
Colorado, as Mr. Salazar mentioned earlier today.
While my written statement goes into detail on a great
number of issues, I would like to focus on two areas here
today, Hours of Service and technology.
Obviously, a primary focal point of H.R. 2095 is fatigue.
As I noted in my testimony before this Committee in February,
it is not in the railroads' best interest to have employees who
are too tired to perform their duties properly. Consequently,
individual railroads are pursuing a variety of fatigue
countermeasures based on what they have found to be most
effective for their particular operating environments.
Combating fatigue, of course, is a shared responsibility.
Just as employers need to provide an environment that allows
employees to obtain the necessary rest during off duty hours,
employees themselves must set aside time when off duty to
obtain the rest they need.
Generally speaking, railroads support provisions in the
legislation prohibiting train and engine employees from working
unless they have had at least 10 hours off duty, up from 8
hours, and those 10 hours should be uninterrupted as called for
in the legislation.
The provision eliminating limbo time, however--that is time
spent after a crew has reached its 12 hour limit and is
awaiting transportation or being transported--is another
matter. We believe that it would impose intractable scheduling
problems for the railroads. Let me underscore that railroads do
not intend for their employees to get caught in limbo time. It
is not part of the operating plan.
What happens is in the very nature of railroad operations,
trains can be subject to unplanned events, a grade crossing
accident, for example, a washout, a hotbox detector indicating
that a car needs to be set out of service. All of that requires
time and can prevent a train from reaching its scheduled
destination within its crew's allotted 12 hours. Under this
legislative provision, that could cause a violation of the
Hours of Service Act through no fault of the railroad.
We believe there is a better way to combat any cumulative
sleep deficit that may occur as a result of limbo time. First,
any employee who works 12 consecutive hours on duty and then at
least one hour of limbo time should receive, under our
suggestion, 14 consecutive hours of off duty time. That goes to
the issue of what the limbo time concern is, and that is
fatigue. You don't want to have a cumulative sleep deficit. Let
us have 14 hours off.
Second, train and engine service employees should be
subject to a new monthly maximum on duty time of 276 hours.
That compares to the 260 hours that the trucking industry has,
but we believe that even though limbo time is not on duty time,
that it should count toward that 276 hour limit.
These measures would significantly reduce the maximum
monthly time for train and engine employees from the 432 you
mentioned, Mr. Chairman, and we believe it would strike a
balance between fatigue concerns and the 24/7 reality of
railroad operations.
The legislation also prohibits railroads from requiring
signal employees to perform emergency work more than three days
in any seven consecutive days. There are occasions when this
limitation would cause significant harm to rail operations and
actually to the greater good.
Hurricane Katrina is a vivid example of this. After that
storm, signal workers performed herculean tasks in getting the
rail system up and running again. Had this provision been in
place at that point, the railroads' ability to respond to the
storm would have been severely diminished and service
restoration would have taken far longer.
A similar situation is occurring even as we speak in Kansas
and other midwestern States hit by tornados this past weekend.
We believe the concerns raised by the BRS both at the February
hearing and here today can be addressed by more tightly
defining what is an emergency versus routine service without
placing handcuffs on the industry in these kinds of situations.
Finally, in the Hours of Service area, we believe that
these recommendations are sound recommendations, but in the
alternative we would also support a transfer of all hours of
service to the FRA with reliance on the FRA's professional
judgment as is the case with FMCSA and the trucking industry.
I know I am running over, Mr. Chairman, but I ask.
Mr. Oberstar. Finish your statement.
Mr. Hamberger. Thank you, sir.
The railroad industry shares the goal of the legislation to
develop and employ effective technology, and let me just move
quickly into that area of positive train control. We believe
that the deadline imposed in the legislation is, in fact, too
rigid.
We are developing and testing advanced train control
systems that can help prevent accidents by automatically
stopping or slowing the trains before they encounter a
dangerous situation, but those systems are indeed very complex.
At the minimum, they must include reliable technology to inform
dispatchers of a train's precise location, a means to warn the
operator of the train of the potential problem and a means to
take action, that is, override the individual in the cab if
necessary and independent of the train operator to prevent an
accident from occurring.
We are committed to using advanced train control
technology. The tremendous complexities involved in those
systems and the need for interoperability across the system
argue for flexibility instead of a rigid schedule. We would
recommend an approach in which the railroads would submit their
implementation plans as called for in your legislation to the
FRA with the FRA then reporting back to Congress on what they
believe might be an appropriate timeframe, and at that time
perhaps a firmer implementation schedule could be established.
Finally, we are concerned about a provision in the
legislation mandating regulations with respect to the
misaligned switches in non-signaled territory. We have gone
through the FRA accident data, and last year there were three
accidents attributable to switch positions not in alignment
that we believe this provision is meant to address, three
accidents.
Morever, the FRA is already addressing this through an
emergency order issued in 2005 and a rulemaking that will
supercede that emergency order.
As General Timmons points out in his letter, this provision
would be beyond the resources of many short line railroads to
implement and would produce a strong incentive to remove many
of those switches to the detriment of customers.
Let me just reiterate that safety is our top priority. We
believe that shows through our improving safety record. We are
committed to working with you and others in Congress and our
employees and customers to ensure that rail safety continues to
improve.
Thank you and thank you for indulgence in allowing me to
run over time.
Mr. Oberstar. Your complete statement will appear in the
record.
Mr. Hamberger. Thank you.
Mr. Oberstar. Mr. Wytkind?
Mr. Wytkind. Thank you, Mr. Chairman and Mr. Shuster for
having transportation labor present its views on the important
issues facing the Nation and this Congress about the safety of
rail transportation.
I want to thank you, Chairman Oberstar, and of course
Chairwoman Brown for making passage of this bill such a top
priority. I have already testified once before the Committee
not long after the new Congress began its business, and we are
certainly pleased to see such aggressive actions being taken by
this Committee to address a long overdue rewrite of Federal
rail safety programs.
Let me say up front that the Federal Railroad Safety
Improvement Act represents a historic step forward in improving
the safety of our rail system and its workforce. We strongly
endorse the Oberstar-Brown bill, and we strongly urge its
adoption without any further delay. We also appreciate the fact
that the Committee is seeking the input of rail workers in this
Country and their unions in trying to address many issues in
the rail safety arena that have been largely ignored over the
last several years.
Second, we applaud the Committee for moving forward with
this bill despite the opposition of the railroad industry which
has grown accustomed to stopping any meaningful attempts to
pass rail safety reform legislation. Make no mistake about it;
we will see and have seen in the submitted testimony fancy
charts and a lot of spin about government data, and we will be
impressed, I am sure, with all the myriad programs that the
railroads are running.
But, ultimately, the railroads are truly dismissing most of
what is in the Oberstar-Brown bill. In the end, they will talk
about working with the Committee but will probably spend most
of their time trying to derail a comprehensive rewrite of rail
safety laws in this Country. We hope the Congress says no to
those political attempts by the railroad industry.
Let us hope that the facts about safety hazards in this
industry that have been well documented just today, the facts
about this industry's safety culture, the facts about tired,
poorly trained and harassed and intimidated employees, and the
fact that we still haven't addressed rail safety since the last
rewrite in 1998 will far outweigh the rail lobby's political
reach into the Congress in trying to stymie efforts to pass
rail safety legislation.
Third, fatigue in the rail industry has reached a crisis.
The AAR seems to devote about seven pages of its testimony to
tell you why most of the measures in the bill shouldn't be
adopted, yet they claim that flexibility is their goal and
safety is their objective but do not see any value, from what I
can tell at least--I tried to read it carefully--in moving
forward with a legislative measure that attempts to address
fatigue in a responsible way.
We wonder why the railroad CEOs and the senior management
do not understand the point that it is not good business to run
a company with fatigued workers, especially in a business like
railroading that clearly affects public safety.
Clearly, Congress has the responsibility to act on the
fatigue concerns being raised by the operating unions and by
the signalmen union, which we will hear from momentarily,
before yet another accident results in this Country from sleep-
deprived employees.
Fourth, training is sorely lacking in the rail industry,
and Congress must speak forcefully on this safety issue. It is
appalling that so many workers are receiving such substandard
training in an industry that prides itself on running 24/7, a
safe, state of the art rail system. It is equally appalling to
read the rail lobby's response to the training requirements in
H.R. 2095. They are ``redundant'' and unnecessary.
The workers are telling me that they are not receiving the
kind of training they need and that there is a brain drain
going on among the workforce because veteran employees, which
are more and more relied on to train the younger workers in the
workforce, are retiring and we are losing a lot of
institutional knowledge. So the recurrent training portion of a
training regime is much needed.
Moreover, since the September 11th attacks, I have
testified probably a dozen times since that horrific day,
calling on Congress to require true mandatory training for rail
workers in this industry in dealing with the security risk that
we now face in this Country as a result of 9/11. I think it is
inexcusable that so many of the workers in this industry are
not being trained for security risks.
Fifth, Congress does need to beef up the Federal rail
inspector force. One of the facts that was left out in the
exchange with the panel about hiring more inspectors and about
the levying of fines is that the average fine is $39.00 across
the whole rail industry which is less than a parking ticket in
the District of Columbia, and a parking ticket doesn't risk
anybody's life.
So I think there needs to be serious consideration to
dealing with that fact. You have got to create the right
incentives for railroads to operate safely, and a rule
infraction shouldn't just cost $39.00.
Let me provide some focused discussion on the whistleblower
issue as well because we think workers continue to routinely
face management intimidation and harassment. For too long we
have seen reports about the culture of intimidation and
harassment that is pervasive in the industry. When faced with
an injury or safety or security risk, rail workers are being
discouraged by managers. This is not hyperbole. It is
happening.
I reject categorically the industry's claim that there is
no compelling case for enhancing whistleblower protections. One
documented case after another show a management culture of
harassing and intimidating and suppressing employees on the job
when they are trying to report injuries and other events, and
they use heavy-handed tactics, often illegal, to disguise the
facts.
The stories are appalling. We have cases that we have
documented and that have been given to this Committee, one
after another of management obsessed with making medical
incidents and injuries non-reportable, even pushing them not to
take prescription drugs when they have been told they need
prescription drugs, delaying medical treatment for injured
employees, underreporting injuries, forcing employees to wait
often two hours for a supervisor to arrive at an accident scene
on the job before that person can be transported for medical
treatment.
Just this morning, I read about a case where an employee
with a cut in his back requiring stitches, due to company
policy, was forced to wait for a supervisor to drive 89 miles
from a different part of Michigan to that location before he
could leave to receive medical attention. This is just plain
wrong, and I don't really understand how the AAR and its member
carriers can defend this kind of regime.
The Committee must act before this culture results in
silencing workers who would otherwise speak out about safety
hazards and, God forbid, pointing out about safety and security
hazards in the event of a terrorist wanting to do harm on our
Nation's railroads.
Section 301 sends a very clear message, and I will wrap up,
to management: If you suppress accident and injury report, if
you willfully harass and intimidate employees, if you deploy
policies designed to suppress rather than foster an environment
in which workers can speak out about safety and security risks
or report and get treatment for injuries, you will be held
responsible and you will pay a price.
We think that is the right thing to do. We urge the
Committee to move on this legislation, and we hope to have an
opportunity to work with you on any questions that you have and
on any further enhancements in this bill that we can be of
assistance on.
Thank you.
Mr. Oberstar. Thank you very much, Mr. Wytkind, for your
testimony.
Mr. Tolman?
Mr. Tolman. Good afternoon, Mr. Chairman, Ranking Member
Shuster and Congresswoman Napolitano.
On behalf of the Brotherhood of Maintenance of Way
Employees, the Brotherhood of Locomotive Engineers and Trainmen
and the Teamsters Rail Conference as well as my colleague here
with the United Transportation Union, with whom the Rail
Conference has submitted extensive testimony, I want to begin
by also thanking the Committee for addressing many issues in
this legislation that are of vital importance to our members.
I especially want to thank Chairman Oberstar and Chairwoman
Brown for introducing this legislation and bringing these
issues forward after 13 years. This is the most significant
piece of rail legislation in more than a decade.
I want to first address the hours of service issue which we
are pleased to see bipartisan support to resolve these
outstanding issues and the hours of service issues
legislatively rather than in regulatory process. We fully
support the changes made in Chairman Oberstar's and Chairwoman
Brown's legislation, H.R. 2095. By amending the Hours of
Service Act, this bill addresses one of the most pressing
issues in our industry, and that is fatigue.
There are three factors that we believe are responsible for
the vast majority of operating crew fatigue. One is the
uncertainty that crews face with respect to advance warning
when they will be required to work. The approach to this
problem is to amend the Hours of Service Act and to require a
minimum time off duty to be undisturbed, and we fully support
this approach.
A second major factor that aggravates fatigue is the
industry's manipulation of the Hours of Service Act by leaving
crews stranded by unconscionable lengths of time as a result of
the Supreme Court's 1996 limbo time decision.
On February 13th of this year, we presented detailed
testimony on this subject, so I won't burden the proceedings by
repeating those facts. It is clear that our concerns have been
taken into consideration in a bipartisan way which we deeply
appreciate.
A third major factor is work time. There is a bipartisan
proposal to reduce the threshold for requiring 10 hours off
duty which we support and applaud. We also support the notion
that crews should have mandatory time off after performing
covered service for seven or eight consecutive days.
On behalf of the BMWED members of the Rail Conference, we
wish to express our appreciation and strong support for the
proposed amendment concerning employee sleeping quarters. We
also support the hours of service amendments proposed by the
Chairman for signaling and dispatching service employees and
urge their adoption.
Also, we would like to applaud the inclusion of strong
whistleblower protections in H.R. 2095. The Teamster Rail
Conference supports the inclusion of whistleblower protection
in this legislation. Railroad workers cannot and should not be
subject to dismissal when they provide information regarding
unsafe issues to the government agencies responsible for
promoting safety and enforcing safety laws and regulations.
Strong whistleblower protections for rail workers are needed to
stop employers from harassing and intimidating employees who
speak out about safety and security issues.
I can tell you that every Class I railroad has been
reported for engaging in harassment. In testimony, we cite a
report done by FRA entitled ``An Examination of Railroad Yard
Worker Safety'' done in July of 2002 which talks about the
commonplace culture in the railroad industry of harassment and
intimidation. The incidents, frankly, involve attempts by
management to have crews skirt the Federal safety regulations,
often rudely berating an engineer or trainman who objects to
train makeup by telling the crew to shut up and get your train
out of town.
We strongly support those provisions in H.R. 2095 that
address several recommendations made by the National
Transportation Safety Board in the wake of the tragic accident
of Graniteville, South Carolina, which resulted in the death of
a BLET member, Chris Seeling, and eight others when a tank car
containing chlorine was breached, releasing a deadly cloud of
chorine gas.
The NTSB has been concerned since at least 1974 about the
issue of non-signaled track or dark territory. The Graniteville
accident was caused by a misaligned switch in dark territory.
Forty percent of our Nation's railroads are in dark territory
without switch position detectors to help prevent accidents
like Graniteville.
Finally, one of the most outrageous abuses that occur in
the rail industry is the interference by carriers in the
medical care of injured workers.
This outrageous behavior is meant to discourage injured
workers from reporting their injuries and trying to recover
damages caused by carrier negligence. H.R. 2095 outlaws the
interference, and we fully support this provision.
Once again, Mr. Chairman, thank you for the opportunity,
and I will be willing to answer any questions.
Mr. Oberstar. Thank you very much, Mr. Tolman, for your
testimony.
Mr. Brunkenhoefer?
Mr. Brunkenhoefer. Yes, sir. I had always thought that I
would be responsible for protecting my members sometimes from
themselves because they are not trained, some of the times from
management. I have an instance here where I think is an example
of the necessity to have some regulation in training.
Recently in a hump yard in east St. Louis which is a very
busy location on the railroad, we had an employee who said he
did not feel he was comfortable operating remote control and
told the supervisor. The supervisor disregarded his concern and
told him to use the equipment and go to work. Then he assigns a
student or a trainee for him to teach how to operate the
equipment. Then in the process of that day, they put two trains
together and caused a collision.
Now what kind of supervisor would do this? The trainee's
father.
Now if the father won't protect him, then I think that we
do have a responsibility to appeal to other people to say let
us don't let these inexperienced people who don't know what
they are doing out there, injuring themselves and causing
accidents.
If that wasn't bad enough, then after the unfortunate
accident, the supervisor had both crews in and told them that
there better not be any injuries involved or they would lose
their jobs.
I have an instance here of limbo time. A crew in Iowa dies
on the Hours of Service Act. That means they have to stop
working after 12 hours. The train master gets a crew from the
terminal, brings them out to the train that has died and
replaces the crew.
Then the train master tells the crew that is new that the
conductor of the new crew is not to ride the train. He is to
drive the crew that has already been on duty 12 hours, so that
the engineer is now operating alone. But if that is not bad
enough, he is told to stop at the stations that the train would
still have switching to do, park the car with the crew in the
car and go into the yard, do the switching. When they were
completing with the switching of that terminal, to get back in
the car, go to the next station and switch the cars because the
crew was on limbo time and it didn't matter.
Harassment and intimidation, it is, I think the word is
endemic throughout the industry. It is not so much the
protection of being able to involve the government. That is
good, but the language that you have needs to be strengthened.
Injuries are not reported.
One of the things you brought up, Mr. Chairman, involved
the FAA in many instances and how thorough investigations have
shown that the information was not correct. Our injury reports
start with the employee who fills out a form who hands it to a
supervisor who fills out a form and that then becomes the basis
for the data that at the Federal Railroad Administration. So if
the supervisor can convince the employee not to make the
report, then it didn't happen.
We have enormous amount of information of where if you fill
that form out, you will be disciplined. You will be
disciplined. It is real.
What I have here is a deposition. I would prefer that we
not give this to the Committee. I am not out to attack anybody.
I am out to report instances that have taken place.
This is an attorney asking a train master: Have you ever
been to a hospital as a train master and spoken with an injured
worker's doctor for the purpose of trying to convince him not
to prescribe medication?
There is an objection by the attorney. At the end of the
objection, the train master said: Yes.
Why? You did that so it wouldn't be an FRA reportable,
didn't you?
The answer was yes.
Okay, the company's attorney is representing the employee,
I mean representing the train master in the deposition. This
employee that was a supervisor wasn't fired, wasn't demoted. He
was promoted and is now the manager of safety of that Class I
railroad. They have a total disregarded interest about let us
play it the right way.
We need to prevent the carriers from using a threat of
discipline to discourage people from reporting injuries. We
need to stop the harassment and intimidation of employees after
they are injured.
An employee should not be required to return from the
emergency room to go back into the yard under medication and
painful to reenact the accident, so that the supervisor can
say: You are lying because it couldn't have happened that way.
You are not doing it as you have described to me, and so I am
going to remove you from service or hold you out of service
because while you were reenacting it, it is not coming out the
same way as you told us.
Can you imagine we are bringing people from hospitals to
railroad yards to reenact accidents? Employees are in pain.
They are under medication. They shouldn't be required to do
this.
Every accident that we have that results in a carrier using
discipline should be investigated by the Federal Railroad
Administration to assure that that carrier is not using
discipline or the threat of discipline to prevent reporting.
To change the subject, in the training section, it is very
well written, and its says that each craft should be trained.
We need to add the word class. Some of the crafts are described
as classes. We have a class of engine service that has the
craft of engineer. We have a class of train service that has a
conductor, a brakeman and a switchman.
So in order that we don't come back here in a few years and
try to get an amendment, it would be easier to put into the
training and qualifications point, craft and class.
Ms. Napolitano hit on something. We need to allow the
States to have a freer hand. The Federal Railroad
Administration says that when we get local safety hazards
relieved. Right up I-5 in this little town called Dunsmuir,
there was an accident many years ago, about a half a dozen, of
where there was a derailment. The city decided that they wanted
to slow the trains down around a specific curve.
So the California PUC passed one regulation about one
curve, one curve. This railroad took the PUC to court and had
it ruled it was preempted by the Federal Railroad
Administration, that the city or the State could not do this
because there were other curves in the United States just like
this one.
We also look at 2095 as not the final word on fatigue. It
is the first word on fatigue. It is the start, and we have to
start some place. In the document as drafted, we have in there
language that will allow for rulemaking to build on the fatigue
situation.
One quick caveat off to the side, one of the questions came
up, and I think, Mr. Shuster, you talked about the marketplace
and PTC. I don't want to spend a lot of time there, but I hope
whatever comes down is common.
The engineer goes on duty on the Burlington Northern and
goes 50 miles, goes onto the Union Pacific for 40 miles, goes
back onto the Burlington Northern and may end up on the CSX.
You will have the operator continually change from one program
or one I like this because it is mine to the next one I like
this because it is mine. Then they have to make the decisions
and calculations they have to do in safety, I think is wrong.
So I hope whatever comes out in PTC that it will be something
that will be interchangeable on all railroads.
Also, both of you have been blessed with excellent staff
people. I have enjoyed working with them. They don't always
agree with me. I think something needs to be done about that
immediately. They keep telling me that they have to do what you
want, but we have been very blessed to work with both of them.
Thank you.
Mr. Oberstar. Thank you, Mr. Brunkenhoefer.
Dan Pickett?
Mr. Pickett. Thank you, Mr. Chairman. I would like to thank
the Chairman and the Members of the Committee for introducing
H.R. 2095 and for holding this hearing.
Railroad signalmen install, test and maintain and repair
the signal systems that the railroads utilize to direct train
movements. Signalmen also install and maintain grade crossing
signal systems used at highway rail grade crossings.
The BRS has always made safety our number one priority. A
safe rail network is an efficient network, and this bill is the
first step to improving rail safety and therefore improving the
efficiency of the railroad.
For too long, fatigue-related errors in the rail industries
have contributed to rail worker injuries and death. The fatigue
management plans proposed in this bill will correct many of
those issues that lead to our employees being so fatigued.
The reforms to the Hours of Service Act contained in this
bill long overdue. Increasing consecutive hours of rest from
eight to ten hours has long been advocated by the BRS. This
bill prohibits railroad employers from communicating with
signal employees during their rest time, something that happens
all too numerous times today.
Doing away with the limbo time and having a straight-up
hours of service law is long overdue.
The bill will also place all workers doing signal work
under the Hours of Service Act. This has long been needed.
Today, the BRS has long advocated the need for a required
toll free number at grade crossings. The establishment of a
toll free notification number will allow the public to provide
more timely reports of highway rail grade crossing signal
malfunctions.
While there has been much advancement in the signal system
technology at highway rail grade crossings, even the most high
tech equipment is rendered useless if the traveling public does
not obey the warnings they receive. Enforcement of laws and
penalties that come from noncompliance are critical in order to
increase safety at highway rail grade crossings.
By conducting audits in the timeframes contained within
this legislation, the FRA and the industry can ensure that they
are getting all of the correct data relating to highway rail
grade crossing accidents and incidents.
It is and has been the position of the BRS that the FRA is
understaffed. This bill will increase the number of FRA
inspectors that are needed to ensure proper accident/incident
reporting.
This bill provides language that will require within 12
months the railroad develop and submit a plan to the Secretary,
implementing positive train control systems by December 31st,
2014. The BRS concurs with the requirements of this section,
and also I would like to add that we also concur with what
Brunkenhoefer said about having a system that works over the
entire railroad rather than one railroad versus another.
The BRS agrees with the provisions contained in Title VI
Miscellaneous, Section 602 Warning in Non-Signaled Territory.
The hardware and software is available today to prevent many,
if not all, of the accidents and incidents involving misaligned
switches in non-signaled territory. As railroads continue to
increase capacity, these types of accidents will likely
increase if we do not take any action.
As the complexity of all railroad equipment increases, it
is important to make sure that all employees have the necessary
training to perform their duties. The BRS praises the
provisions regarding minimum training standards in this bill.
The bill provides language to ensure that all injured
railroad employees get the proper medical treatment for any on-
job injury. An injured employee should not have to worry about
reporting an injury, let alone getting the proper treatment for
that injury.
Mr. Chairman, H.R. 2095 is a giant step toward improving
safety in the Nation's railroads. This bill addresses many
issues very important to railroad signalmen. This bill, if
passed into law, will improve rail safety across our Nation's
railroads. On behalf of the Brotherhood of Railroad Signalmen,
I congratulate all who helped to craft this bill.
I appreciate the opportunity to testify before you today,
and at this time I will be glad to answer any questions.
Mr. Oberstar. Thank you very much, Mr. Pickett. We greatly
appreciate your testimony.
Mr. Oberstar. Mr. Durbin?
Mr. Durbin. Thank you, Mr. Chairman.
I am Marty Durbin with the American Chemistry Council. Our
members are committed to the safe movement of our products, and
we believe H.R. 2095 provides an important framework to improve
safety performance for transporting these critical materials.
In particular, we support provisions of the bill that seek to
implement the NTSB recommendations.
The business of chemistry depends on the Nation's railroads
to deliver about 170 million tons of products each year,
accounting for more than $5 billion in annual railroad freight
revenues, making chemicals the second largest railroad
commodity.
Sound engineering and common sense teach us that for rail
transportation, hazmat safety is the result of many
interrelated factors. The avoidance of accidents and accidental
releases of hazardous materials is a primary focus for our
member companies, the broader chemistry sector, our
transportation partners and emergency responders. Together, we
have invested billions of dollars in training, systems,
technology and tank car safety.
And H.R. 2095 goes even further by requiring such measures
as positive train control, warnings in non-signaled territory
and enhanced track inspection. These provisions in addition to
the bill's treatment of employee fatigue will significantly
enhance rail safety.
Safety performance improvements for hazmat rail shipments
is a collaborative process that must involve all relevant
stakeholders including rail carriers, shippers, tank car
suppliers and government. The ACC is pleased to hold a seat on
the Tank Car Committee of the Association of American
Railroads. We have long found the committee to be an effective
forum for cooperative risk management.
We are concerned, however, that recent actions by our rail
partners could jeopardize that history of successful
collaboration. Following last year's controversial decision by
AAR to approve a new tank car design which was opposed by all
the shipper representatives on the committee, FRA expressed its
concern that AAR had abandoned a consensus process that
``yielded so many significant improvements in the railroad
transportation of hazardous materials.''
We were grateful for FRA's leadership to bring all
stakeholders back together under a collaborative approach
toward a new tank car design. AAR wisely delayed implementation
of its decision thereby allowing tank car design to be
considered through a Federal rulemaking which is progressing on
a positive path.
But this collaboration is in jeopardy. For example, under
the guise of improving safety, one railroad has announced that
it will revise its tariffs to encourage shippers to use a tank
car that is not yet available. We are also disappointed that
AAR is now pursuing tank car designs for additional chemical
products instead of working through the rulemaking process.
Now, in addition, we are aware that the railroads propose
to limit their liability resulting from hazmat incidents. While
it is in nobody's interest for railroads to be put out of
business due to unwarranted lawsuits, we have serious concerns
with the proposal.
ACC works with many organizations to help restore fairness
to our civil justice system, but we don't believe a party
should be relieved of appropriate liability for harms it has
caused. Railroads, as well as other stakeholders, should
continue to bear liability for their own conduct. A system that
shifts liability from the party at fault to other parties
serves as a disincentive to improve safety.
So any decision to limit rail hazmat liability, should
Congress find such a major change to be in the public interest,
must involve input of all stakeholders. If all parties were to
agree that some limits need to placed on liability, any
resulting proposal must clearly distinguish between accidents
and gross negligence and must be strongly tied to ongoing
safety performance improvements. Therefore, ACC cannot support
the railroads' narrow one-sided liability proposal, and I know
other rail customer groups share our concern and will be
submitting their own statements.
An important related matter is the common carrier
obligation under which railroads are required to transport
commodities for their customers. The common carrier obligation
is the framework on which the entire national railroad
transportation system was founded. Railroads are allowed to
operate in the public interest because the Nation depends on
safe and reliable delivery of a wide range of products on which
we all depend.
ACC and its members recognize that safety requires
effective collaboration and, despite the concerns I have cited
today, I am also pleased to say that we have a long history of
partnership with rail carriers on safety programs. One example
is TRANSCAER which helps communities prepare for and respond to
possible hazmat transportation incidents.
In addition, ACC's CHEMTREC program, now in its 36th year,
shares expertise and experience with emergency responders. Our
emergency center in Rosslyn is a 24/7 reminder of our
commitment to enhance the safety of every hazmat shipment.
We look forward to working closely with this Committee, the
Congress and the Agency and other stakeholders to enhance the
safety of rail transportation.
Thank you for allowing the ACC to present its views, and I
am glad to answer questions.
Mr. Oberstar. We are grateful for your testimony. Thank you
very much for being here with us.
Mr. Hamberger, I wrote down with interest your comment
about switch out of alignment. You said there were only three
in 2006.
Mr. Hamberger. There were more switches out of alignment
that occurred when the switching itself was occurring at the
customer's facility or going into the customer's facility.
What we tried to do was to take a look at those accident
codes in the FRA database in dark territory and then try to
address the situation where a main line train goes into the
siding and then does not realign the switch, so that the next
main line train would continue on the main line but instead is
shunted into the siding.
I said we believe that that is what this provision is meant
to address, that kind of accident. If that is what we are
talking about, we have identified three.
Mr. Oberstar. The FRA, from their own database, which I
asked to be taken down from the infamous internet as you can
get every piece of information in the world apparently, they
have a very interesting printout which I used in preparing this
legislation. In descending order of frequency, the second most
frequent incident is switch improperly aligned, and they list
136.
Mr. Hamberger. Yes, sir. But, as I say, we tried to get
behind that number and those often times are when the work is
being done.
Mr. Oberstar. You want that number or that category
differentiated according to various listings that you just
cited a moment ago.
Mr. Hamberger. To see whether or not lining up the switch
would have prevented that accident, correct.
Mr. Oberstar. Mr. Pickett, do you have any comment? You are
a signalman.
Mr. Pickett. We don't keep on dark territory. We don't have
any information on dark territory. We are not involved other
than a grade crossing in dark territory.
Mr. Oberstar. Okay. There also is on page 18 of your
testimony, a comment about Section 606 of our bill.
Your quote: ``It appears to mandate that railroads
transport injured workers to a hospital of the worker's
choosing with no limitations on that choice,'' so forth and so
on and then says ``A railroad should be able to override the
health care provider.''
What do you mean override the health care provider? That is
an intriguing comment.
Mr. Hamberger. As I was trying to point out, there may be
occasions where a doctor says to an employee, you are cleared
to go back to work, but that employee is on medication that
causes drowsiness. In that case, the employee should not be.
Mr. Oberstar. You would say the railroads should override
the decision to return to work, not override the medication.
Mr. Hamberger. That is correct, yes, sir.
Mr. Oberstar. That is not clear from your statement.
Mr. Hamberger. I apologize for that.
Mr. Wytkind. Mr. Chairman, it is also not happening that
way. The situation that Mr. Hamberger is addressing, it is not
when it is being used. It is being used to override doctors. It
is being used to force employees to say no, for example, to
prescription drugs, so that it is not reportable.
So while it may be a tool that they want to use to help the
worker not have to come back to work, it is not a tool they are
using for that purpose.
Mr. Oberstar. I specifically reference that. Mr. Hamberger,
do you want to respond?
What we are concerned about is that the railroads, there
have been reports that they have actually intervened in the
choice of medication.
Mr. Hamberger. Well, I am sitting here, listening to these
kinds of reports as well, and I have to say that on behalf of
this industry, and I will not be obfuscatory about it. I will
say straightforwardly, I reject the idea that there is a
culture, an endemic culture of intimidation and harassment, and
I say very clearly right here that it is not proper and
appropriate to intimidate and harass. It is not proper and
appropriate to stop an employee from getting appropriate
medical care, and if it does happen it should be punished.
Mr. Oberstar. Since your statement says the provision
appears to prohibit railroads from overriding the treatment
plan and appears to mandate. Suppose you suggest language to us
that would protect those concerns.
Mr. Hamberger. Thank you.
Mr. Oberstar. But without overreaching.
Mr. Hamberger. Yes, sir.
Mr. Oberstar. I would like to see what your comment would
be.
Mr. Hamberger. Yes, sir. Thank you. Thank you very much.
Mr. Oberstar. In limbo time, what are train crews supposed
to do?
Now I raise that question, and I do that against the
backdrop of the hours of service legislation that we had
several years ago and then in the surface transportation bill
when a wide range of trucking interests got engaged in this,
became engaged in this issue, including the electric power
industry and the movie industry.
They said, oh, my goodness, we have these folks sitting
around here for 14 hours. They got up at 7:00. They are on duty
at 7:00 in the morning. They have got to drive all the
equipment to the site of the movie shoot and unload the truck.
Then they have nothing else to do for 12 hours until they load
the truck up again, and then they can drive back.
We are not imposing any burden on them. I would call that
limbo time. I lost that battle to the movie industry because
every Member of Congress thought there was a movie in their
back yard or in their district. They thought this would be just
fine to have movies made in their districts, and they voted
overwhelmingly, 300 something to whatever. We lost that battle,
but I am not going to lose it again.
[Laughter.]
Mr. Oberstar. As I said earlier, if it is good enough for
the Pope to rescind limbo, by golly, then we can deal with it
here in this category.
Tell me, Mr. Tolman, what is your experience?
Mr. Wytkind, you cross over a lot of transportation venues
including railroads.
Mr. Tolman. Mr. Chairman, crews are supposed to remain
vigilant and watch out for mechanical failure as well as safety
of the train while they are in limbo time. I have traveled
across the Nation in the last six months and talked to various
members throughout the railroad industry. It is the number one
issue of abuse in the industry is limbo time.
You know we submitted recent testimony, and we submitted
crews being held out of service. Three-thousand three-hundred
and thirty-five [subsequently altered by witness to read: three
hundred thirty-five thousand] crews were measured over the past
six years, 2001 to 2006, and in that data that we received, I
would say that part of limbo time is now part of their
scheduling. It would suggest that the part of limbo time is
part of their scheduling.
I quote. In their testimony, it says intractable scheduling
problems if you deal with limbo time.
I beg to differ. I mean I sincerely beg to differ because
they have built this into scheduling. If we took those numbers
that I just gave to you, 150 crews exceeded the hours of
service by a minimum of two hours every day for 6 years, every
day for 6 years.
One other thing I would like to comment is on the return to
work problem of a person that may be on some medical
prescription drug. Part 219 of the Federal Railroad
Administration regulations would not allow an employee to go
back to work if they were under some type of prescription drug.
That is covered. That doesn't happen, shouldn't happen and
wouldn't in the industry.
One other thing I would like to touch base on is the
switching issue. I mean one accident in my eyes is one too
many, and I am sure that everybody in this room could agree
with that. But, God forbid, if that accident in Graniteville
happened 12 hours previously with an elementary school 500
yards from there. I mean God forbid. We wouldn't be sitting
here, questioning whether we should put targets there.
Thank you.
Mr. Oberstar. Mr. Wytkind?
Mr. Wytkind. Mr. Chairman, the only thing I would add is I
represent 32 unions in the transportation sector in five modes,
and the gaming of hours of service, the gaming of how you
schedule workers, the ability to extract every possible ounce
out of the workers is something that is pervasive throughout
the transportation industry.
The problems we have in the railroad industry are severe.
This whole limbo time debate, we ought to end this debate. The
workers should be protected from the obvious safety hazards
that that issue among many others under the fatigue and hours
of service debate brings to the industry. I don't really
understand how the industry can basically defend this at a
safety hearing.
It is one thing to argue that they need flexibility and
they need to run 24/7 railroads. We are not disputing the fact
that they run large nationwide 24 hour operations, but there is
nothing incompatible about flexibility and efficiency and
safety on the other hand. I think you can do both, and it can
be achieved, and the measures in your legislation ought to be
enacted.
Mr. Oberstar. Mr. Shuster?
Mr. Shuster. Thank you, Mr. Chairman.
The one thing that I have learned since coming to this
Subcommittee is that the railroad companies and labor and the
unions are similar to Republicans and Democrats. You are not
all one monolithic group. You don't necessarily all speak with
one voice.
I think it is important to find compromise here and come
together, whether we are talking about, well, I know right now
presently you have got about 50 percent of the workforce has
agreed to a labor contract and 50 percent are still
negotiating. We have got one rail company that isn't real hot
on positive train control and another that wants it. So within
both sides of this issue, people are disagreeing.
I think that there is some compromise here, and I think
that talking about limbo time and worker safety and hours of
service. I looked at what the Chairman's bill and Ms. Brown's
bill says, and quite frankly I think my numbers, according to
what I see but again not necessarily the way you view it, is it
is safer. I am giving you more rest time than the Chairman's
bill on the same amount of work.
But that being said, safety is critical to all of us. I
think everybody in this room, whether it is the folks in the
rail industry, the companies, the AAR, labor unions, myself who
drives on roads, my wife and kids who drive on roads and cross
railroad tracks. We have got to make sure that we are as safe
as we possibly can be.
I will ask it to Mr. Wytkind and Mr. Tolman and Mr. Broken
Rail. I don't think I can still pronounce your name. Besides, I
want to know what you are running for as you are complimenting
both our staffs. And Mr. Pickett.
Mr. Brunkenhoefer. I am trying to borrow money.
[Laughter.]
Mr. Shuster. The Chairman's bill is 12 hours of work, 10
hours of rest. Mine, that we have introduced or we put out
there at least, is 12 hours of work, 14 hours of rest. Can you
comment on that?
What is the best mode?
Going back to, which we are going to get to that, the FRA,
that you have said is a starting point for fatigue study and
which I want to talk about that. But tell me, based upon your
view, how many hours of work and how many hours of rest,
uninterrupted rest, is the optimal?
Mr. Brunkenhoefer. Most of America works 21 and three-
quarters days a month, 22 days a month. Under 272 hours in a 22
day month, that is 12 hours and 30 minutes.
We already have a 12 hour law. So we start off with that
number of the premise that we are going to have a built-in 30
minutes a day or we are going to have to work more than 5 days
a week. And so, I think that the cumulative time should be
significantly lower than the 272.
As far as the 14 hours, I know that Altoona is a delightful
city. I have visited it.
But if you live in Tucson, you may not be considered
getting rest if you are spending 14 hours in Yuma, that when a
crew gets to the other end of the railroad, they strongly want
to go home to be with their wives and families. What the 14
hours appears to do is to punish the crew for a mistake that
management made of being unable to run the train. It would
probably cause them to lose additional turns in a month by the
way they turn. They want their time at home, not at the other
end of the railroad.
So I think that it is well intentioned, but if you are 14
hours stuck at the wrong place, it is not going to release the
stress that you have to deal with on a daily basis.
Mr. Shuster. And 10 hours is better, is a shorter period of
time? It allows them to get home. Is that what you are saying?
Mr. Tolman. I guess I will try to answer it. I think the
most important thing in the industry, and we have heard various
testimony, is that there is no one silver bullet that resolves
the fatigue issue in most modes. But in my eyes there is one
silver bullet, and it is in the Chairman's bill, and that is
elimination of limbo time. That addresses the primary issue.
Fourteen versus ten, I think Mr. Brunkenhoefer answered it
correct, that our members and anybody in their right mind don't
want to lay over for 14 hours at an away from home terminal
versus being home in their own bed.
Another way to look at it is if you give the opportunity of
employee empowerment, and that would be giving the employees--
trainmen, conductors, engineers--the opportunity to take leave
when they are exhausted, when their rest is up, that would be
the right approach.
Fourteen versus ten, I think ten is the answer. I embrace
the Chairman's legislation.
Mr. Shuster. Because, again, if you are in Altoona and you
are going from Harrisburg to Pittsburgh, those runs are a lot
shorter than if you are out west somewhere. So no matter what
the time is, you can't necessarily guarantee, especially when
you have got these long, long runs, that somebody is going to
be in the right place at the right time. Truckers have that
problem. Airline pilots have that problem.
Mr. Pickett. Mr. Shuster, if I could address.
Mr. Shuster. Yes, sir.
Mr. Pickett. For the signalmen, we have got it completely
different. We could go home at 3:00 this afternoon if that
completes our shift. We are on call 24/7.
Under the current regs, what Tolman said is correct. If we
had the opportunity to say, hey, I can't go out now. But we
could possibly be called out at 11:00 tonight if it was at 3:00
we finished our shift, completely rested and ready for 12 more
hours in 24 hours. There is no way.
Also, you could even get two or three calls during that
night if you were called out right after your shift as long as
you didn't exceed the four hours and clear trouble, and then
you would only have the eight hours rest.
So we see a big advantage in the 10 hours. We would like to
see more done on the fact that let the individual be empowered
to mark off without repercussion of marking off when he feels
that he is tired.
Mr. Shuster. Limbo time, we have it down to propose one
hour of limbo time in case things occur. A tire gets flat on a
van on the way home, things like that happen, and that is
unforeseen things. That one hour limbo time, that is something
that is going to cause fatigue. It is going to cause great
safety concerns.
Yes, Mr. Tolman.
Mr. Tolman. That is, I guess, a misuse of limbo time. Right
now, the FRA has a regulation that provides for relief on
certain issues that are under the definition of an emergency.
It is kind of misleading testimony that would say that
limbo time won't address the Hurricane Katrina. There is
already a change in the law that would address Hurricane
Katrina, that the FRA can immediately amend the regs in order
to address the Hurricane Katrina issues. It is not correct use.
Obviously, if there is an act of God_a hurricane, tornado,
whatever_there is a regulation that provides for emergency
relief on the hours of service.
Mr. Hamberger. Since I have been called misleading, if I
might just jump in there, Mr. Shuster.
Mr. Shuster. Sure.
Mr. Hamberger. It is unclear to me, and if that is what the
Chairman means and if that is the interpretation of Mr. Tolman.
It is unclear based on the draft legislation whether the
exercise of that kind of regulatory authority by the FRA would
still exist under this legislation. It is a key matter that we
need to continue to discuss as we go forward.
Mr. Shuster. Rest is the key. Rest, uninterrupted rest,
that is the key, right. Everybody agrees on that.
Well, then it becomes a question, and I said this before.
How are we going to ensure that that guy or that gal goes home
and actually rests for 10 hours? What are we prepared to do?
Last time I talked about the sleep police. Are we going to
have bed checks?
It becomes a concern. If getting that rest is so critical
for improving safety, then how are we going to ensure? How are
you going to ensure that they are going to take that rest?
I know people out there who have second jobs at part time.
Is that something that we say because it is such a great
concern, because safety is hand, that we deny people to be able
to have a second job? Is that something that you are prepared
to put forward?
How do you ensure they are going to get that rest?
Mr. Brunkenhoefer. First, it is never going to happen if we
don't give them the chance. And so, if we build a system that
says you can't even a chance at getting your rest.
Mr. Shuster. Right, that is what this is all about.
Mr. Brunkenhoefer. Then it doesn't matter what your
personal responsibility is.
As Mrs. Napolitano's district is where you have got the
backup on I-5 and you are two hours getting home and two hours
getting back to work and you have eight hours off and you are
supposed to eat, sleep and bathe in the four hours that are
left. It doesn't matter what the personal provides.
Mr. Shuster. But that is what this is all about. We are
going to move forward. So what happens if we are able to craft
a deal?
How do we ensure that those folks are getting the proper
rest?
Mr. Brunkenhoefer. There is either a longer notification
that says 10 hours from now you are going on duty, and I don't
think that is unreasonable, or that people have assigned
starting times and know when you are going to go to work.
So what we live in is that we never know. If I call the
crew dispatcher and I call up and I say, when does it look like
I am going to out. They say, Mr. Brunkenhoefer, it looks like
you are going to get out in eight hours from now. That means
you are going to get out at 2:00 a.m. So I better hurry up and
go to bed.
The phone don't ring at 2:00 a.m. The phone don't ring
4:00, 6:00, 8:00, 12:00. Now I have worn out the bed. I am
going to wake up, okay. I may be awake for 10 or 12 hours now
that the phone call comes. Then I am 12 hours on duty. Then I
build a limbo time on that, and then I go out and get on I-5 or
the Pennsylvania Turnpike after I have been up 25 or 30 hours.
And so, eventually at some portion out there, maybe that is
something the positive train control will do, is we will have a
better prediction or a better window to get to the solution.
Mr. Shuster. That is going to ensure that everybody gets
eight hours of sleep?
Mr. Brunkenhoefer. No. It is like today you know that you
are going to probably be back here tomorrow morning at 8:00
a.m. So you have an oportunity to choose if you want to go to
sleep at 9:00, 10:00, 11:00 or stay out all night.
Mr. Shuster. That is the point I am trying to make. If
somebody decides that they are going to stay out all night or
work a second job or do whatever, that is going to create a
safety problem also.
Look, I have put forward a proposal that I think is decent.
I have heard a couple of people say that is reasonable. There
needs to be some compromise. I have said that from the
beginning.
But how do we ensure that people are going to be
responsible?[AFTER 6:00 P.M.]
Mr. Brunkenhoefer. First of all, you have got to give them
the opportunity.
Mr. Shuster. That is what we are trying to do.
Mr. Wytkind. Mr. Shuster, if I could just for a minute, I
don't think you can make sure of anything.
I remember in the debate about the trucking industry's
rewrite of the hours of service was that it got mired in
litigation and other public disputes. The solution to the
rewrite of the trucking hours of service was not to let some of
corporate America, which they did attempt to do including Wal-
Mart, to allow drivers to work longer hours behind the wheels
which was certainly not conducive to creating the environment
that you are referring to which is trying to make sure that
workers get their rest period.
I think Mr. Brunkenhoefer and Mr. Tolman have both raised
some very important points in their answers which is if you
create an environment where you are guaranteed a certain amount
of rest time, where you are guaranteed a cap on your number of
hours, where you eliminate limbo time, where you eliminate the
ability to call someone three hours into their sleep like they
do regularly, those are the environments you can create to
hopefully eliminate many of the fatigue problems in the
industry.
You are not going to eliminate it altogether, and you are
not going to regulate behavior. I can't promise you today that
if you enact this bill tomorrow, every rail worker in this
Country is going to show up to work 100 percent rested. There
is no way you could ever do that.
But what I think you can do is create an environment that
gives us a chance to have these workers get adequate rest at
home, so when they show up at work, it is reliable time. The
call comes at the right time. When they are told it is 2:00
a.m., it is 2:00 a.m., not 12:00 p.m. the next day.
I think those are issues that need to be dealt with both in
the regulatory process and in the legislative process and in
the way that labor and management conduct their affairs with
one another.
Mr. Shuster. Sure. Labor and management, that brings up
another point. When you start to talk about allowing the
Federal Railroad Administration to basically have an open
checkbook as we talked about this is a starting point on
fatigue studies. My concern is we are going to have a
bureaucrat in Washington determining what should be happening
in labor negotiations and with management as to who is working,
what is the hours of service instead of just leaving it wide
open to the Federal Rail Administrator to decide that he is
going to change it, that he is going to increase it.
Mr. Wytkind. Well, but that is not the point I am making.
Mr. Tolman wants to respond.
When I say labor and management, there is responsible
behavior that management can have in the conduct of its affairs
with its employees. That has nothing to do with collective
bargaining. It has everything to do with responsibly running
your company and making sure your workers aren't exposed to
safety risks.
My reference to labor and management has nothing to do with
collective bargaining. I think this matter needs to be dealt
with through public policy in the public policy arena because
the carriers are not willing to do this without Congress
telling them they shall.
Mr. Shuster. That is what we have laid out to put it
forward.
Mr. Wytkind. Right.
Mr. Shuster. Again, I want to come to some resolution, but
at the same time I think you are absolutely right. You can't
guarantee. You can't guarantee anything, whether if we set up a
regimen of time and then who is going to make sure that
everybody is doing the responsible thing, getting the proper
rest. I guess that is my point.
When we try to regulate or over-regulate, at the end of the
day, it is not going to be perfect. It is not necessarily going
to give us all the outcomes that we think it is.
Mr. Hamberger. If I could just respond to something. I
don't want to jump in here but if I could.
Mr. Broken Rail mentioned that the employees are being
punished for the mistakes management made. Management made no
mistake when the hotbox detector goes off and that car has to
be set out and they are out in the middle of, as he said, Yuma
somewhere and it takes a while to get somebody out there to
relieve that crew at the end of their 12 hours.
But, yet, under the provision that would eliminate that,
eliminate limbo time and make that an hours of service
violation, that is a $100,000 fine because the hotbox detector
went off. Somehow that doesn't seem quite equitable. There is
no mistake that management made.
The concern has got to be fatigue and sleep deprivation and
sleep debt. That is why we are suggesting that when that does
happen, that there be a 14 hour period, whether it is at Yuma
where you don't want to be, as Mr. Broken Rail said, or you are
home in Tucson, wherever it was. It is a 14 hour window where
you can be given the opportunity, as they both just said. Set
up the environment, as they both just called for, to have that
rest.
It is not a mistake management made. There are times that
something happens. If they hadn't stopped and taken out that
car that had the hotbox, there would have been an accident.
Mr. Shuster. Thank you, Mr. Chairman.
Mr. Oberstar. The gentleman has pursued a very important
line of questioning.
The people we are talking about here--locomotive engineers,
signalmen, maintenance away personnel--are safety
professionals. There are safety professionals on a flight deck
in an aircraft. There are safety professionals in the cabin,
the flight attendants.
My father was chairman of the safety committee of the
Godfrey underground mine for 26 years when he worked there. He
worked rotating shifts. We didn't have a whole lot to live on,
but he didn't take a second job. When he came home, he went to
bed. He got rest because he knew he had to be on the job.
And so, he was alert that fateful morning when the main
tubers that the mining company insisted be put in the shaft
where they were working, in the drift as they were called in
the underground, and he heard the timbers cracking. He took his
two partners and threw them out the mouth of the drift while
the whole shaft collapsed in around him and stopped right here
at his shoulders.
Safety professionals don't risk their own lives.
But I would suggest that in response to the gentleman's
concern, that we include a provision in this legislation that
would require rest counseling. Have counseling for workers. We
are going to put this provision in. We are going to limit hours
of service, and then let us make sure that everybody is covered
by and gets some counseling. When you go home, you get some
rest now.
I don't think we have to counsel people to do that, but I
think the gentleman's point about maybe there is some
temptation to go take a second job. I think folks in this
sector are pretty well paid. They don't need a second job, but
there might be temptation to do that. Let us put a provision in
there that requires it.
Mrs. Napolitano?
At this point, I am going to ask Mrs. Napolitano to take
the Chair as I have another transportation commitment
elsewhere. I regret to leave.
But before I do, I just want to observe on the airbags. In
the seventies, the National Highway Traffic Safety
Administration issued a performance-based standard, not a
technology-based standard. The companies went out and got the
lowest cost airbags and installed them. Some of them were
defective. Some were way overpowered. After hundreds of
children were injured and a great many killed, Congress stepped
in and said, fix this, and did by moderating and modulating the
airbags for the individuals.
Mr. Hamberger, the Association of American Railroads has on
its web page that just came to my attention, commentary on not
the subject of this hearing but the legislation I have
introduced to deal with competition. It has a very intriguing
character, and I just want to know which one of these I am.
[Laughter.]
Mr. Hamberger. I can't see it.
There are a number of folks in town right now, Mr.
Chairman, trying to drive support for that bill, and we felt it
necessary to get our view out as well.
Mr. Oberstar. Let us not call it reregulation. You call it
whatever you want. It is your web site, and you can call it
whatever you want, but this is extending the benefits of
deregulation.
Mr. Shuster. I think you are the guy on top there. Wasn't
there one guy on top?
Mr. Oberstar. The one guy on top there, yes, he has got his
hand up in the air.
Mrs. Napolitano. [Presiding.] Thank you, Mr. Chair.
I believe it was my turn, so I will take it and then pass
it on.
I was listening with great intensity to some of the finer
points brought out about the average fine for a railroad for
certain infractions being as low as $39.00, and I am thinking
that is an invitation to just pay the fine.
There is a concern even in my district of the elected
officials at the local level, that they feel there is just not
enough emphasis being put on the seriousness of the infraction
and how we are dealing with it or not dealing with it, I should
say. That is just a statement that I thought I would make
because that caught my ear.
One of the things that I did find out when we were doing
some of the research for the derailments within my jurisdiction
and just outside my jurisdiction was that the accidents within
the yard, confined within the rail yard, were not being
reported, and that could be a cause for concern because some of
those could conceivably have impact on whether the equipment is
failing, on sleep deprivation, a number of other things, not
just necessarily the fact that there have been accidents within
the yard.
I would hope that that is part of what we are going to
start looking at is that we are honest in being able to report
and being able to then to determine what it is that we need to
do, whether it is training, counseling to the employees about
sleeping, whatever it is. But then you have identified because
in the end not only does the rail image suffer because of the
derailments, but there are people's lives at stake besides the
cargo that they are carrying.
Rather than just arbitrarily say you are doing this wrong,
let us work together to be able to find out how we can address
this, so that we do address things that we know are happening
and are not being taken care of.
Training for supervisors, I am hearing. Well, personally, I
had heard about the type of training some of the employees were
not getting, but as I am listening to the testimony from some
of the organizations, that the supervisors are giving
instructions that might be contrary to the efforts being put
forth by the railroad and saying we do not do this. Whether or
not you have considered doing some training for the supervisors
to ensure that whatever policy is out there, that it is carried
out with the intent fully to not only protect the company but
protect the employee and their integrity.
Mr. Hamberger. Yes, Madam Chair, those kinds of training
programs indeed do exist, and there are several different kinds
of training out there, one of which Mr. Wytkind referred to in
the security area. While we believe_and we have had this
discussion before this Committee in the past_that we are indeed
providing security training. It is a security training module
put together by the National Transportation Institute of
Rutgers University, approved by the Department of Homeland
Security.
There is a provision in the House-passed security bill that
will mandate a training module, a training provision in
security. So I am hoping that in future hearings we can have
that one set aside.
With respect to training for the individual job that an
employee holds, those kinds of training modules, it is my
understanding, for example, with the UTU that those are put
together in conjunction with the unions to make sure that the
training is accurate. For the BLE, it is a training program
that the FRA, we have to submit to the FRA.
So, yes, there is that kind of a commitment to training
because, as you point out and Mr. Broken Rail pointed out,
there is in fact a new level, a new wave of people coming into
the industry. We have to make sure that they understand the
safety rules. We have to make sure that they are trained. I
think the fact that in 2006 that we had the lowest accident
rate in history indicates that we must be doing the job right.
Mrs. Napolitano. I am glad to hear that because at some of
the hearings that we had in Los Angeles, it was brought to my
attention that the extent of the training was limited to
handing an employee a video or sitting them through to a video
and giving them a booklet. The statement was made that you were
lucky if you got a trained engineer to work with. This was
something that kind of horrified me because that is putting a
lot at stake, a lot.
Mr. LaTourette?
Mr. LaTourette. Thank you very much, Madam Chairwoman.
I am sorry that the Chairman left, and I will tell him this
personally. I hope we don't spend a lot of money in this bill
on sleep counseling because anybody that doesn't belong to a
fraternity that can't figure out that they need to get a good
night's rest, I really think is a waste of time and exercise.
I want to talk about an issue that came up a couple of
weeks ago, and then I want to get to this issue of limbo time
as well. Mr. Hamberger, I want to start with you and, Mr.
Durbin, I don't want you to feel ignored down there, so I am
going to include you as well.
When we did the rail security bill of maybe a month ago
that came out of Homeland Security, sort of air-dropped in that
bill was a provision removing the Federal preemption for the
Nation's railroads. My understanding is that it had something
to do with Minot, North Dakota. We had a hearing on this last
year. I don't think it had anything to do with Minot, North
Dakota. I think it had to do with the American Association of
Justice which used to be the American Trial Lawyers
Association.
Mr. Hamberger, I will start with you and just ask you what
you think that removal of Federal preemption would do to affect
the Nation's railroads, one, and if you can just tell us, give
us a little update on where the Minot, North Dakota stuff is,
litigation.
Mr. Hamberger. Let me start with that update if I can, Mr.
LaTourette. Indeed, there was an accident in Minot, North
Dakota, in 2002, a derailment. An anhydrous ammonia tank car
breached. One person was killed. Many were injured. The
district court ruled that the FRA preemption prohibited a
lawsuit from going forward.
We believe that that should not be the case, that that was
an improper assessment of what FRA preemption means. We have
legislative language that we have presented to the Committee
staff. We presented it to the Department of Homeland Security
staff when we found about the amendment that was going to be on
the floor at 2:00 in the afternoon. We found out about it at
9:00 that morning in the technical corrections amendment
offered by the Chair. It was impossible at that point to get
that accepted.
We are talking to the Homeland Security conferees about
taking language that will make sure that where there is a
violation of the Federal Railroad Administration rules or
guidance, that that does not extend to a preemption of being
able to get into court. But what it does do is say that there
will not be a patchwork quilt around the Country of various
safety regulations, that there should in fact be because we are
a network.
I am pleased to say that many of the cases in Minot are
being settled. The named case, in fact, settled last week.
Negotiation are ongoing, and the circuit court was supposed to
hold oral arguments next week. I believe that has been
postponed.
So I am hoping that that can be resolved and that the
sympathy engendered and real sympathy for the citizens of Minot
who were not given the opportunity to go to court will not
drive Congress to go beyond fixing that narrow problem as you
so eloquently put it.
Mr. LaTourette. I appreciate that. My time is brief. Let me
just say I thought that the district court was wrong, but I
thought that that provision was trying to kill an ant with a
sledgehammer, and I hope that it is resolved.
Mr. Hamberger. I wish I had said it that way.
Mr. LaTourette. Well, it would have been shorter.
[Laughter.]
Mr. LaTourette. Mr. Durbin, has your group at all looked
into what it would do to your ability to ship chemicals or
hazardous materials?
Mr. Durbin. We have, Mr. LaTourette, and we would agree
with AAR's interpretation here. I think, again, it was a narrow
language that intended to fix that one issue, but our concern
as well is that it would have a much worse effect on the
overall preemption issues.
Mr. LaTourette. I just thought it was nutty.
Mr. Pickett, I would go to you. I hope that in the
Oberstar-Brown bill, that we can work together as Republicans
and Democrats and come up with a bipartisan agreement on this
limbo time and hours of service and everything else.
I wrote down, Mr. Pickett, that you said let the employee
be empowered, I think you said. I couldn't agree with you more.
I am the lead sponsor on a mandatory overtime for nurses. Just
like truck drivers, just like people who operate the trains, I
don't want some tired nurse taking care of me if she doesn't
feel or he doesn't feel that they want to work that mandatory
overtime and that they need their rest. I think the employee is
in the best position to make that determination.
I have to tell you that I visited with some of your members
at the Collinwood Yard, the one that CSX operates, and they
have a view. What I am worried about when we have inflexibility
rather than flexibility, when we don't empower employees and
come to some agreement based upon whether you are in Yuma,
Arizona or wherever else, Pennsylvania or things of that
nature, when we have a one size fits all, I don't think you are
empowering the employees.
So one of your guys said, come on out in the yard, and he
threw a switch. He said, now that I have thrown that switch, I
am on the clock.
But he said, you know what, if I want to work some
overtime, if I want to work a little bit more to feed my family
and take advantage of that, I should have the opportunity to do
that. I know when I am tired. I know when I am not tired.
You don't think so, Mr. Brunkenhoefer, that this guy didn't
know when he was tired?
Mr. Brunkenhoefer. We have worked with NTSB and a lot of
other people. It is like taking drugs. You feel fine.
Mr. LaTourette. Sure.
Mr. Brunkenhoefer. But you don't know that your judgment is
impaired. So people who work beyond a certain extent are not
judgments, as much as their intentions are, of their ability to
be able to perform.
I feel real good. I am going to drive on to Erie or to
Buffalo, but when I go through Ashtabula from Collinwood, I had
already been up 24 hours, but I felt fine when I left.
Mr. LaTourette. Yes, but that is kind of an extreme
example. You are right. Some people feel they are invincible.
When I was 21 years old, I felt I could do a lot more than I
can now at 52 years old.
But if an employee says, you know what, I am feeling pretty
good, and I think I can work 10 hours today as opposed to 8
hours a day, I think they are capable of making that judgment.
I think that there does come a point when they are not able to
make that judgment, and that is when hours of service and limbo
time and other things have to come in and come into play.
I would hope. I know that everybody is excited about the
Oberstar bill, but I would hope that we could resolve this in a
way that builds more flexibility in, that makes the railroads
safer, protects workers' rights, protects their sleep, gives
them the opportunity to get the rest they need to do their job
but also recognizes that not every train route is the same, not
every employee is the same, not every job is the same.
I worry about the direction of the current bill, and I hope
that the Chairman will work with Mr. Shuster and others, and we
can come up with a product that everybody is proud of.
I thank you.
Mrs. Napolitano. Thank you.
Mr. Pickett. I would like to respond.
Mr. LaTourette. Sure.
Mr. Pickett. I also do support the hours of service. We
have worked on it since 1976 when we became part of it, and I
do support it.
I think that there are times, though, that the people don't
get the adequate rest that they should be allowed. That is what
I meant. To empower them to mark off without being jeopardized
or being hurt by saying, hey, I didn't go to bed tonight like I
should have. I didn't go to bed at 3:00. I didn't know I was
going to get called out at 11:00 tonight.
Mr. LaTourette. If the Chair will indulge me, I agree with
that 100 percent, and that is the whole purpose behind the
nurse mandatory overtime. That person is subject. Not Mr.
Brunkenhoefer's analogy of driving 24 hours, and I hope when
you have been up 24 hours, you please stay out of Ashtabula
County, Mr. Brunkenhoefer.
But I do think that that employee should have the
opportunity--that is what I am talking about--to say, you know
what, I am beat, I am beat, so that we empower you.
That employee, I do think, within certain reasonable
standards has the opportunity to say, you know what, I can go
another couple of hours today to feed my family. That is where
I worry that when we become inflexible in our rules, we don't
completely empower the employee the way that we want to.
I would invite you to talk to the guys in the Collinwood
Yard because they don't necessarily agree with that position.
Thank you.
Mr. Tolman. Mr. LaTourette, if I can also, please.
Mr. LaTourette. If the Chairman will let you, you can talk
all day.
Mr. Tolman. Madam Chairman?
Mrs. Napolitano. I think my Ranking Member here is getting
a little antsy but go ahead.
Mr. Tolman. Thank you.
You know, it brings up a great point. Yes, we should be
working together and cooperating, but for the last 12 years we
have had that 45 U.S.C. 2108 [subsequently altered by witness
to read: 45 U.S.C. 21108] section of the Hours of Service Act,
which has provided both labor and management the opportunity to
cooperate, to introduce pilot programs. Nothing has happened.
There is no cooperation.
Hence, that is why the legislation in front us, 2095, is
the right direction. It is the only direction.
Mr. Hamberger. Cooperation would extend to the seniority
districts of your members who voted down 10 hours of rest at
their away facility because they were more interested in
getting back home than having 10 hours of rest. It goes both
ways.
Mr. Tolman. Yes, it does.
Mrs. Napolitano. Okay, gentleman, thank you very much.
The last question that I have is to Mr. Durbin. We kind of
left you alone, so I don't want to make you feel neglected.
Mr. Durbin. I appreciate it.
Mrs. Napolitano. The railroads have a proposal to limit
their liability resulting from hazardous material accidents or
incidents, whichever, and their proposal requires chemical
shippers to cover part of the liability in the event of
hazardous material spills. Did the railroads involve you in the
development of the proposal and what do your members think of
it and which members support or oppose the proposal?
I will tell you I have had chemical spills in my area, and
it is not a very nice thing to happen.
Mr. Durbin. Mrs. Napolitano, as I mentioned in our
testimony, we were not consulted as far as putting together the
proposal that AAR has circulated. Now they have shared it with
us, the completed version, and we have shared that with our
members. The very clear answer back, as I mentioned in my
testimony, was very clear concerns about the proposal as it is
being one-sided.
Again, I think that this is a proposal that if we are going
to go down this road, it has got to include all the different
players, all the different stakeholders that are involved in
the safe movement of hazardous materials. Again, should it be
decided that this is a good way to go as far as limiting
liability for any of the players in that chain, we need to make
clear that there is a distinction between accidents and
negligence and again to make sure that the liability is spread
across all the different players.
Mr. Hamberger. If I might just end on a more civil note,
Mrs. Napolitano, we did indeed share it with the ACC, with the
Fertilizer Institute. We tried at one point to try to come up
with a joint proposal with the Fertilizer Institute but did not
come to resolution on that. So we thought it was important to
get out our views. We did indeed share it. I sent it to Jack
Gerard and to their counsel.
Obviously, something like this is not going to go forward
without the full participation of everybody in that supply
chain, and so we look forward to being able to sit down and
talk to ACC as well.
Mrs. Napolitano. That would be tremendous, especially if
there are shipments of ammonia and things that could harm the
environment that are very critical in many areas.
Mr. Hamberger. Absolutely.
Mrs. Napolitano. Well, with that, I thank the Ranking
Member and the witnesses for their valuable testimony and for
your indulgence.
Again, Members of the Committee may have additional
questions for the witnesses, and we ask you to respond to these
in writing. The record will be held open for 14 days for these
responses.
Unless there is further business, the Subcommittee is
adjourned. Thank you very much.
[Whereupon, at 6:28 p.m., the Subcommittee was adjourned.]
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