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

                        RAIL SAFETY LEGISLATION




                               BEFORE THE

                            SUBCOMMITTEE ON


                                 OF THE

                              COMMITTEE ON
                        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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                 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
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
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
RUSS CARNAHAN, Missouri              Virginia
JOHN T. SALAZAR, Colorado            JIM GERLACH, Pennsylvania
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
JOHN J. HALL, New York               MARY FALLIN, Oklahoma
STEVE KAGEN, Wisconsin               VERN BUCHANAN, Florida
STEVE COHEN, Tennessee
JERRY McNERNEY, California




                   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
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
DANIEL LIPINSKI, Illinois            JOHN L. MICA, Florida
JAMES L. OBERSTAR, Minnesota           (ex officio)
  (ex officio)




Summary of Subject Matter........................................    vi


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


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


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













                          Tuesday, May 8, 2007

                  House of Representatives,
    Committee on Transportation and Infrastructure,
        Subcommittee on Railroads, Pipelines and Hazardous 
                                                    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 
    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 
    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, 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 
    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 
    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 
    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 
    I am looking forward to this most informative hearing 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.


    Mr. Boardman. Before I do that, with the indulgence of the 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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.
    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 
    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 
    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 
    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 
    Mr. Shuster. How far off are we from that scientific 
    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 
    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 
    Mr. Boardman. I understand.
    Mr. Nadler. Thank you. I yield back.
    Mr. Oberstar. As always, a very lively discussion with Mr. 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Mr. Boswell. Did you slip a French word in on me there?
    Mr. Oberstar. [Phrase in foreign language.]
    Mr. Boardman. I need help.
    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 
    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 
    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 
    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 
    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 
    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. 
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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, 
    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 
    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.
    Mr. Boardman. Mr. Chairman, are you saying they are mad in 
    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 
    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 
    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 
    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 
    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.

                       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 
    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 
    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 
    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 
    Thank you and thank you for indulgence in allowing me to 
run over time.
    Mr. Oberstar. Your complete statement will appear in the 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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, 
    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 
    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.
    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 
    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 
    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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