    [Senate Hearing 110-1120]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 110-1120

                          RAIL SAFETY REAUTHORIZATION

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

                                    HEARING

                                   before the

                     SUBCOMMITTEE ON SURFACE TRANSPORTATION

                      AND MERCHANT MARINE INFRASTRUCTURE,

                              SAFETY, AND SECURITY

                                     of the

                             COMMITTEE ON COMMERCE,

                          SCIENCE, AND TRANSPORTATION

                              UNITED STATES SENATE

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  MAY 22, 2007

                                   __________

        Printed for the use of the Committee on Commerce, Science, and
                                 Transportation

                      U.S. GOVERNMENT PRINTING OFFICE
    73-896                    WASHINGTON : 2012
    -----------------------------------------------------------------------
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    20402-0001

           SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                       DANIEL K. INOUYE, Hawaii, Chairman
    JOHN D. ROCKEFELLER IV, West         TED STEVENS, Alaska, Vice Chairman
        Virginia                         JOHN McCAIN, Arizona
    JOHN F. KERRY, Massachusetts         TRENT LOTT, Mississippi
    BYRON L. DORGAN, North Dakota        KAY BAILEY HUTCHISON, Texas
    BARBARA BOXER, California            OLYMPIA J. SNOWE, Maine
    BILL NELSON, Florida                 GORDON H. SMITH, Oregon
    MARIA CANTWELL, Washington           JOHN ENSIGN, Nevada
    FRANK R. LAUTENBERG, New Jersey      JOHN E. SUNUNU, New Hampshire
    MARK PRYOR, Arkansas                 JIM DeMINT, South Carolina
    THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
    CLAIRE McCASKILL, Missouri           JOHN THUNE, South Dakota
    AMY KLOBUCHAR, Minnesota
       Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
    Lila Harper Helms, Democratic Deputy Staff Director and Policy Director
       Christine D. Kurth, Republican Staff Director and General Counsel
    Kenneth R. Nahigian, Republican Deputy Staff Director and Chief Counsel
                                     ------

          SUBCOMMITTEE ON SURFACE TRANSPORTATION AND MERCHANT MARINE
                      INFRASTRUCTURE, SAFETY, AND SECURITY

    FRANK R. LAUTENBERG, New Jersey,     GORDON H. SMITH, Oregon, Ranking
        Chairman                         JOHN McCAIN, Arizona
    JOHN D. ROCKEFELLER IV, West         TRENT LOTT, Mississippi
        Virginia                         KAY BAILEY HUTCHISON, Texas
    JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
    BYRON L. DORGAN, North Dakota        JIM DeMINT, South Carolina
    MARIA CANTWELL, Washington           DAVID VITTER, Louisiana
    MARK PRYOR, Arkansas                 JOHN THUNE, South Dakota
    THOMAS R. CARPER, Delaware
    CLAIRE McCASKILL, Missouri
    AMY KLOBUCHAR, Minnesota
                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on May 22, 2007.....................................     1
    Statement of Senator Klobuchar...................................    10
    Statement of Senator Lautenberg..................................     1
    Statement of Senator Smith.......................................     9

                                   Witnesses

    Clinton, Hon. Hillary Rodham, U.S. Senator from New York.........     2
        Prepared statement...........................................     4
    Hamberger, Edward R., President and CEO, Association of American
      Railroads......................................................    72
        Prepared statement...........................................    74
    Hyde, Kurt W., Assistant Inspector General, Surface and Maritime
      Programs, U.S. Department of Transportation....................    34
        Prepared statement...........................................    36
    Schumer, Hon. Charles E., U.S. Senator from New York.............     5
        Prepared statement...........................................     7
    Siggerud, Katherine, Director, Physical Infrastructure Issues,
      U.S. Government Accountability Office..........................    41
        Prepared statement...........................................    43
    Strang, Jo, Associate Administrator for Safety, Federal Railroad
      Administration, U.S. Department of Transportation..............    10
        Prepared statement...........................................    12
    Sumwalt, Hon. Robert L., Vice Chairman, National Transportation
      Safety Board...................................................    28
        Prepared statement...........................................    30
    Timmons, Richard F., President, American Short Line and Regional
      Railroad Association...........................................    87
        Prepared statement...........................................    89
    Wytkind, Edward, President, Transportation Trades Department,
      AFL-CIO........................................................    57
        Prepared statement...........................................    59

                                    Appendix

    Response to written questions submitted by Hon. Frank R.
      Lautenberg to:
        Edward R. Hamberger..........................................   108
        Kurt W. Hyde.................................................   106
        Jo Strang....................................................   101
        Hon. Robert L. Sumwalt.......................................   106
        Richard F. Timmons...........................................   109
        Edward Wytkind...............................................   107

                          RAIL SAFETY REAUTHORIZATION

                                  ----------

                             TUESDAY, MAY 22, 2007

                                   U.S. Senate,
                   Subcommittee on Surface Transportation and Merchant
                         Marine Infrastructure, Safety, and Security,
            Committee on Commerce, Science, and Transportation,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 10 a.m. in
    room SR-253, Russell Senate Office Building, Hon. Frank R.
    Lautenberg, Chairman of the Subcommittee, presiding.

            OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,
                      U.S. SENATOR FROM NEW JERSEY

        Senator Lautenberg. Committee will come to order. Today
    we're focusing on the safety of our Nation's railroads.
        This Subcommittee has not held a hearing on this topic
    since 2002. And the Federal Rail Safety Program which is
    designed to keep our rails safe has not been authorized since
    1994. But the safety of our railroads is critical to our
    national economy and the well being of cities and towns across
    our country.
        Last year freight trains carried 100 million tons of food,
    150 million tons of farm products, 170 million tons of
    chemicals, and carry nearly three-quarters of the coal that's
    carried, more than a billion tons. That provides about half of
    the electricity generated in our country. So, the role is a
    critical one.
        The increase in freight rail will take more trucks off the
    road improving safety and decreasing congestion. The statistics
    for our National Passenger Rail System are no less impressive.
    Amtrak had record ridership in 2006 and the ridership is
    already up again this year by 5 percent.
        Last month the bill that Senator Lott and I introduced to
    reauthorize Amtrak and to grow our passenger rail system passed
    unanimously out of the full Commerce Committee. I'd like to see
    us bring that bill to the Senate floor very soon.
        Every passenger train gives thousands of commuters a choice
    other than their car. In New Jersey alone as many as a quarter
    million commuters take the train each weekday. With so much at
    stake for our national economy and for individual travelers,
    the Federal Government must make sure that railroads are safe.
        The number of train accidents, employee deaths and highway
    grade crossing deaths has steadily declined over the past few
    decades. But there has been an uptake in recent years. We've
    seen major accidents in Graniteville, South Carolina; Macdona,
    Texas; and in Oneida, New York, which I know my two colleagues
    at the witness desk are very much interested in. These
    accidents caused fatalities and the release of toxic chemicals.
    They remind us that there's much to do to improve rail safety.
        Employee fatigue is a serious problem. Under the current
    law, train crews can work up to 400 hours in 30 days; 400 hours
    in 30 days and it's simply not safe. And employees are either
    on-duty or off-duty, there's no in-between. And yet the
    employers use a system they call limbo time. It's a loop hole.
        And during limbo time employees are considered off-duty but
    they must remain at the job site. And this prevents them from
    getting sufficient rest. This loop hole increases the problem
    of employee fatigue. And it's got to be eliminated.
        Fortunately, there is new technology available to help
    prevent some accidents caused by human factors such as fatigue.
    This technology can also make train operations more efficient.
    For example, PTC, Positive Train Control Systems have been on
    the National Transportation Safety Board's most wanted list for
    the rail industry since 1990. These systems could prevent train
    collisions, speeding derailments and other dangers that
    tragically kill or injure. Although the industry is moving
    toward adopting this technology, I don't believe that it's
    moving fast enough.
        Finally, 94 percent of all railroad related deaths are
    related to highway grade crossings and trespassing. We've got
    to do more to save lives at these crossings. Grade-crossing
    safety is an area where the Federal Government and the
    railroads should be doing more to prevent accidents.
        First steps involve understanding exactly where the problem
    locations are and that will require cooperation of the states
    as well. So, I am pleased to have my distinguished colleagues
    from the state of New York. Senator Clinton and Senator Schumer
    are here to share their thoughts and concerns on the areas of
    safety improvement in the rail industry.
        I look forward to hearing from you and our other witnesses
    today. Your input is important as this Subcommittee develops
    its rail safety legislation later this year. And I would ask--
    Senator Smith, whether there is an urgency to his schedule and
    the same for Senator Klobuchar. Otherwise we'll call on our
    colleagues and let them make their statements.
        Senator Klobuchar. I'd like to hear from our colleagues,
    Senator. Thank you.
        Senator Smith. I would agree with that.
        Senator Lautenberg. Alright, so, in order of seniority.
        Senator Schumer. Senator Clinton has another appointment to
    go to. So I'll defer to her and go after her, if you don't
    mind.
        Senator Lautenberg. Kindnesses are rare around here. Be
    careful or it gets to be a habit.
        [Laughter.]
        Senator Lautenberg. Senator Clinton, we're pleased to hear
    from you.

               STATEMENT OF HON. HILLARY RODHAM CLINTON,
                       U.S. SENATOR FROM NEW YORK

        Senator Clinton. Thank you very much, Chairman Lautenberg,
    Senator Smith and Senator Klobuchar. And I really commend you
    for holding this hearing and conducting the oversight that is
    so urgently needed.
        I'm pleased to be joined by my colleague, Senator Schumer.
    As you might assume from our both being here, we have some very
    important questions and concerns about the situation of our
    railroads in New York.
        As you said, Chairman Lautenberg, railroads transport 42
    percent of the Nation's freight. And the U.S. Department of
    Transportation estimates that between 1998 and 2020 the amount
    of freight transported by rail will increase by 50 percent. At
    the same time the Federal Railroad Administration, the Nation's
    chief rail safety agency is understaffed, overextended and has
    the capacity to inspect only 0.2 percent of the Nation's
    railroads.
        While gains have been made in rail safety, the primary
    responsibility is delegated to the railroad industry. And in
    the absence of public scrutiny and private responsibility, rail
    safety is being neglected. And the consequences have been
    deadly. On December 10, 2006, a 64-car CSX freight train
    derailed in Cheektowaga, New York. On December 14, 2006, a CSX
    carman with 30 years of experience was struck and killed at a
    CSX yard in Syracuse, New York. On December 19, 2006, a CSX
    carman with 15 years of experience was struck and killed by a
    train in Selkirk, New York. On January 16, 2007, a 13-car CSX
    freight train traveling 62 miles per hour derailed near East
    Rochester, New York.
        Most recently a CSX train derailed near Oneida, New York on
    March 12, 2007. The train was carrying liquefied petroleum gas
    and the accident resulted in a massive fire. Fortunately there
    were no injuries, but authorities were forced to enact a mile
    wide evacuation of the surrounding area. If this train had been
    carrying chlorine or any other extremely dangerous material,
    the result could have been catastrophic. Derailments on CSX
    properties in recent months have occurred in Kentucky, Maryland
    and Ohio.
        On March 27, the FRA released the results of a focused
    inspection on CSX properties in each of the 23 states where the
    railroad operates. It found 3,518 defects and 199 potential
    violations. In New York alone, 60 inspections revealed 376
    defects including 13 violations. It's my understanding the
    violations cited in the inspection are still being reviewed by
    the FRA.
        I have met with and called on the Administrator of the FRA,
    Joe Boardman to expand his investigation to other railroads
    besides CSX. I don't think that we want to sit idly by waiting
    for the next derailment to occur. And I commend the response of
    Administrator Boardman and the FRA in light of these troubling
    accidents and derailments in New York. The FRA is doomed to
    fail however without the resources, authority and support to
    properly ensure the safety of our Nation's railroads.
        And that's why it's so important what your doing, Mr.
    Chairman. This Congress needs to fill the leadership vacuum
    left by previous Congresses and the current Administration and
    implement meaningful rail safety reform. The FRA needs more
    inspectors, more frequent systemwide safety inspections of
    major railroads and routine use of new technologies. The number
    of inspectors has remained flat in recent years.
        As of July 2006, FRA had 657 full-time and part-time safety
    staff, including 400 inspectors in the field. In contrast the
    railroad industry has about 235,000 employees, 219,000 miles of
    track in operation, 158,000 signals and switches and more than
    1.6 million locomotives. It's plain and simple. In order for
    the FRA to ensure rail safety it needs the inspectors and the
    inspection technology to do its job.
        We should also do more to protect railroad workers. For too
    long fatigue related errors in the rail industry have
    contributed to rail work injuries and deaths. I think we should
    look at legislation to create safe working conditions for
    workers and in turn safe conditions for our railroads.
        The FRA needs a data driven evaluation system to measure
    the effectiveness of its enforcement program, instead of
    relying on the railroads for compliance. It's hard to correct
    problems when the FRA does not have the facts about what is
    being fixed and what isn't.
        The FRA must have stronger regulations and better
    enforcement to hold railroad companies accountable. Its entered
    into only 13 compliance agreements and one compliance order
    over the past decade. And I urge the Committee to look into how
    these methods can be used more effectively.
        Finally, this Committee and Congress should explore risk
    management. The systematic process for assessing risk and
    managing risk helps us protect commuter railroads and pipelines
    in our country as well as Canadian railroads. Why not our
    freight lines as well?
        So, Chairman Lautenberg and to the other members of the
    Committee, I appreciate the opportunity to come and share some
    of our concerns from New York. And I look forward to working
    with you on legislation that will provide the FRA with the
    tools necessary to ensure the safety of our railroads. I look
    forward to your leadership on this important issue.
        [The prepared statement of Senator Clinton follows:]

              Prepared Statement of Hon. Hillary Rodham Clinton,
                           U.S. Senator from New York
        Chairman Lautenberg, Ranking Member Smith, and Members of the
    Subcommittee, thank you for the opportunity to testify before this
    Committee. Chairman Lautenberg, thank you for your work and your
    commitment to our Nation's transportation systems and infrastructure. I
    am pleased to be joined by my colleague, Senator Schumer.
        Railroads today transport about 42 percent of the Nation's freight.
    The U.S. Department of Transportation estimates that between 1998 and
    2020 the amount of freight transported by rail will increase by 50
    percent.
        At the same time, the Federal Railroad Administration (FRA)--the
    Nation's chief rail safety agency--is understaffed, overextended, and
    has the capacity to inspect only 0.2 percent of the Nation's railroads.
    While gains have been made in rail safety, the primary responsibility
    is delegated to the railroad industry. In the absence of public
    scrutiny and private responsibility, rail safety is being neglected--
    and the consequences have been deadly.

       On December 10, 2006, a 64-car CSX freight train derailed in
            Cheektowaga, New York.

       On December 14, 2006, a CSX carman with 30 years of
            experience was struck and killed at a CSX yard in Syracuse, New
            York.

       On December 19, 2006, a CSX carman with 15 years of
            experience was struck and killed by a train in Selkirk, New
            York.

       On January 16, 2007, a 13-car CSX freight train traveling at
            62 mph derailed near East Rochester, New York.

       Most recently, a CSX train derailed near Oneida, New York on
            March 12, 2007. The train was carrying liquefied petroleum gas
            and the accident resulted in a massive fire. Fortunately, there
            were no injuries--but authorities were forced to enact a mile-
            wide evacuation of the surrounding area. If this train was
            carrying chlorine gas or any other extremely dangerous
            material, the result would have been catastrophic.

        Derailments on CSX properties in recent months have occurred in
    Kentucky, Maryland, and Ohio as well.
        On March 27, the FRA released the results of a focused inspection
    on CSX properties in each of the 23 states where the railroad operates.
    The FRA found 3,518 defects and 199 potential violations. In New York
    alone, 60 inspections revealed 376 defects, including 13 violations. It
    is my understanding that the violations cited in the inspection are
    still being reviewed by FRA.
        I have called on the Administrator of the FRA, Joe Boardman, to
    expand his investigation to other railroads besides CSX. We cannot sit
    idly by waiting for the next derailment to occur.
        I commend the response of Administrator Boardman and the FRA in
    light of these troubling accidents and derailments in New York.
        The FRA is doomed to fail, however, without the resources,
    authority, and the support to properly ensure the safety of our
    Nation's railroads. It's time for this new Congress to fill the
    leadership vacuum left by the previous Congress and the current
    Administration and implement meaningful rail safety reform.
        The FRA needs more inspectors, more frequent system-wide safety
    inspections of major railroads, and routine use of new technologies.
    The number of FRA inspectors has remained flat in recent years. As of
    July 2006, FRA has 657 full time and part-time safety staff, including
    400 inspectors in the field. In contrast, the railroad industry has
    about 235,000 employees, 219,000 miles of track in operation, 158,000
    signals and switches, and more than 1.6 million locomotives. It's plain
    and simple, in order for the FRA to ensure rail safety; it needs the
    inspectors and the inspection technology to do the job.
        We also should do more to protect railroad workers. For too long,
    fatigue-related errors in the rail industry has contributed to rail
    work injuries and deaths. We must look at legislation that creates safe
    conditions for workers--and in turn safe conditions for our railroads.
        FRA needs a data-driven evaluation system to measure the
    effectiveness of its enforcement program--instead of relying on the
    railroads for compliance. It's hard to correct problems when the FRA
    does not have the facts about what is being fixed and what isn't.
        The FRA must have stronger regulations and better enforcement to
    hold railroad companies accountable. The FRA has entered into only 13
    compliance agreements and one compliance order over the past decade.
    These methods should be explored and I encourage the Committee to look
    into how these methods can be used more frequently.
        Finally, this committee and Congress should also explore risk
    management. The systematic process for assessing risk and managing risk
    helps us protect commuter railroads and pipelines in our country as
    well as Canadian railroads--why not for our freight lines as well?
        Chairman Lautenberg, and the rest of the Committee, I look forward
    to working with you on legislation that will provide the FRA with the
    tools to ensure the safety of our Nation's railroads--before the next
    catastrophe occurs. Our railroads, railroad employees, our economy, and
    the safety of our communities depend on it.
        Thank you.

        Senator Lautenberg. Thank you very much, Senator Clinton.
    Senator Schumer?

                 STATEMENT OF HON. CHARLES E. SCHUMER,
                       U.S. SENATOR FROM NEW YORK

        Senator Schumer. Thank you, Mr. Chairman. And I too add my
    thanks to you and the Committee for holding--Subcommittee for
    holding this very important hearing. I want to thank my
    colleague from New York, Senator Clinton for, as usual, her
    prescient and right on the money remarks and analysis.
        Let me just say that as you point out, Mr. Chairman, the
    country's rail system is a vital lifeline for many of America's
    towns and cities. However, I believe that in New York and
    across the country we're on the brink of a disaster. We can no
    longer afford to have our tracks and trains be in such a dismal
    state of disrepair.
        We must make sure as it--it is as safe as possible; that
    rail companies who refuse to make even the most basic repairs
    are held accountable for their actions. Millions of Americans
    who live in communities and neighborhoods that lie near freight
    rail tracks, live life in the crosshairs fearing that the next
    derailment or accident could be a terrible disaster.
        Now, thankfully, many of these accidents are minor. But
    each one should be a wake up call to overhaul our system in
    order to prevent the next serious crash. Unfortunately the
    industry has continued to hit the snooze button. It's now up to
    Congress and this Subcommittee to wake the industry up. And
    that is what this hearing and the legislation I've introduced
    will hopefully do.
        I have said it before and I'll say it again. The railroad
    industry has turned a blind eye to safety and allowed our
    Nation's rails to degrade year after year. In 2004, the
    railroad industry made over $42 billion in revenues by shipping
    goods 1.66 trillion miles over America's rail system. However,
    despite record business and profits the industry--the industry
    safety record has grown deplorably worse. The record must
    improve immediately.
        The number of derailments that have occurred in the first
    quarter of this year is 8 percent higher than for the same
    period 10 years ago, jumping from 280 to over 300. And what
    happens is when maintenance isn't maintained at a top level,
    you don't see much change. And then all of a sudden you go off
    the cliff. And my worry, Mr. Chairman, is we're getting close
    to that point where we might go off the cliff.
        In our own state of New York, the--we have seen the effects
    more than in many other states. For two centuries now New York
    has relied on rail lines to transport its goods within the
    state and all over the country. We have 3,500 miles of track,
    crisscrossing New York from Buffalo to Albany--from Buffalo to
    Albany, from Plattsburg to New York City; 36 railroads operate
    in our state. And in 2000 to 2006, Mr. Chairman, there were 572
    rail accidents causing $34 million in damage. Each year 2.95
    million tons of hazardous material travel through our state by
    rail.
        This year has seen a rash of dangerous derailments across
    the state that could have been worse. And Senator Clinton has
    outlined those. But I would mention this. On the Oneida
    accident where the people had to be evacuated, there was a huge
    fireball. And praise God no one was injured.
        The reason for the derailment was a crack in the track on a
    heavily traveled line that should have been discovered long in
    advance of the derailment. It's another sad chapter in the long
    story of railroad negligence when it comes to safety. Your FRA
    report of the Oneida derailment faulted CSX with 79 different
    problems within the tracks across New York. So it could have
    happened just about anywhere.
        On January 16, as Senator Clinton mentioned, the CSX train
    left the tracks in the Village of East Rochester. It landed
    just a few feet from the homes. The week before 20,000 gallons
    of methanol caught fire in the Selkirk rail yard and so we've
    had serious problems, serious problems. And it's because of the
    situations like this that I reintroduced the Rail Crossing and
    Hazardous Materials Transport Act, which I hope the Committee
    will look at as it prepares its legislation.
        Congress cannot allow rail companies like CSX to continue
    to sit idly by and let their tracks fall apart while they
    collect checks. We must hold their feet to the fire; send them
    a clear message that we mean business and won't allow this
    behavior to continue. My bill would dramatically increase the
    fines for violating the FRA rules. They're too often right now
    a slap on the wrist. It will also update FRA standards
    regarding hazardous materials and increase the fines there
    making sure that we, the Federal Government, are doing our
    part.
        The FRA, in part by design, in part because it doesn't have
    the necessary tools has become too much of an old and tired
    watch dog. But we can't be the only ones stepping up to the
    plate. Rail companies must have--do their share of the burden
    in insuring that our rail system is as safe as possible for the
    physical safety of our passengers, motorists, rail workers,
    pedestrians and for our own safety.
        Congress, the Department of Transportation, state and local
    agencies and the rail companies must all work together to
    minimize dangerous spills like what happened in Oneida. Of
    course train derailments are not a phenomenon limited to my
    state. We should not wait until fatalities to act. We have to
    act now. We must crack down on sleeping companies while at the
    same time help them improve the rail infrastructure of our
    Nation.
        That's what my legislation is intended to do. It attacks
    this problem of rail safety head on and holds violators
    accountable for their action and lack thereof. It would also
    help state and local governments who are trying to improve rail
    structure by providing $50 million in grants. Additionally, the
    bill would provide financial assistance to such areas as Long
    Island and Westchester to close the very dangerous platform
    gaps that exist. We can't wait any longer.
        So, I look forward to working with this Committee. And I
    hope that as the Committee moves forward with its Rail Safety
    bill it will consider some of the provisions in my legislation
    as well.
        Again I want to thank you, Mr. Chairman, for holding this
    hearing. I'll be submitting a more extensive written statement
    which I would ask permission to put in the record.
        Senator Lautenberg. To be included.
        Senator Schumer. And again, rail companies must be held
    accountable for dropping the ball when it comes to rail safety.
    Thank you very much.
        [The prepared statement of Senator Schumer follows:]

                Prepared Statement of Hon. Charles E. Schumer,
                           U.S. Senator from New York
        Thank you, Mr. Chairman. First, I'd like to thank the Committee for
    holding this hearing on an issue that affects the entire Nation. This
    country's rail system is a vital lifeline for many of America's towns
    and cities. However, I believe that in New York and across the country,
    we are on the brink of disaster. We can no longer afford to have our
    tracks and trains be in such a dismal state of disrepair. We must make
    sure it is as safe as possible and that rail companies who refuse to
    make even the most basic repairs are held accountable for their
    actions.
        Millions of Americans who live in communities and neighborhood that
    lie near freight rail tracks live life in the crosshairs, fearing that
    the next derailment or accident could be a terrible disaster.
        Thankfully, many of these accidents are minor, but each one should
    have been a wake up call to overhaul our system in order to prevent the
    next serious crash. Unfortunately, the industry has continued to hit
    the snooze button. It is now up to Congress to wake the industry up and
    that is what this hearing and my legislation will hopefully do.
        I have said it before and I will say it again. The railroad
    industry has turned a blind eye to safety and allowed our Nation's
    rails to degrade year after year. In 2004, the railroad industry made
    over $42 billion in revenues by shipping goods 1.66 trillion miles over
    America's rail system. However, despite record business and profits,
    the industry's safety record has grown deplorably worse. This record
    must improve immediately. The number of derailments that have occurred
    in the first quarter of this year is 8 percent higher than for the same
    period 10 years ago, jumping from 280 derailments to over 300.
        The current crisis lies in the decrepit state of our Nation's rail
    lines. No state has seen the effects of this more than my home state of
    New York. For two centuries now, New York has relied on rail lines to
    transport its goods within the state and all over the country. More
    than 3,500 miles of track crisscross New York, from Buffalo to Albany,
    Plattsburgh to New York City, with 36 railroads operating in the state.
    In the period between 2000-2006, there were 572 rail accidents in New
    York, causing $34 million in damages. Every year, 2.95 million tons of
    hazardous materials travel through my state by rail. This year has seen
    a rash of dangerous derailments across the state that could have caused
    serious harm.
        In March, a CSX freight train hauling liquid propane derailed in
    Oneida, NY. Several of the cars were carrying dangerous chemicals, and
    they ignited, sending a fireball into the sky seen from miles away.
    Thousands were evacuated, and the FRA was sent in to investigate the
    crash. Of course, the reason for the derailment was a crack in the
    rail. This is just another chapter in the long story of railroad
    negligence when it comes to safety.
        The FRA report of the Oneida derailment faulted CSX with 79
    different problems with their tracks across New York. And it is not
    just the Oneida crash that has shaken the residents of New York. There
    are many other examples of rail companies asleep at the switch in my
    state. On January 16, thirteen cars on a CSX train left the tracks in
    the Village of East Rochester, landing within a few feet of nearby
    homes. No one was injured, but at least two motorists were nearly hit
    by falling trailers that were dislodged from their train cars. The week
    before, 20,000 gallons of methanol caught fire at the CSX Selkirk rail
    yard, the same destination as the train that derailed on Monday. On
    December 10, a CSX train carrying canned goods derailed on an overpass
    in Cheektowaga, leaving one boxcar teetering on the edge of a railroad
    bridge and sending a second onto Union Road.
        It is because of situations like this that I've reintroduced the
    Rail Crossing and Hazardous Materials Transport Act. Congress cannot
    allow rail companies like CSX to continue to sit idly by and let their
    tracks fail apart while they collect checks. We must hold their feet to
    the fire, and send them a clear message that we mean business and won't
    allow this behavior to continue.
        My bill would dramatically increase the fines for violating the FRA
    rules, and it will also update FRA standards regarding hazardous
    materials and increase fines, making sure that we--the Federal
    Government--are doing our part. But we can't be the only ones stepping
    up to the plate. Rail companies must haul their share of the burden in
    ensuring that our rail system is as safe as possible, for the physical
    safety of our passengers, motorists, rail workers, and pedestrians, and
    for our own economic security.
        Congress, the Department of Transportation, state and local
    agencies, and the rail companies must all work together to minimize
    dangerous spills like what happened in Oneida. Of course, train
    derailments are not a phenomenon limited to my state. We should not
    wait until a fatality to act. We must act now. We must crack down on
    sleeping companies, while at the same time help improve the rail
    infrastructure of our Nation.
        My legislation would do just that. It attacks this problem of rail
    safety head-on and holds violators accountable for their actions--or
    lack thereof. It also would help state and local governments who are
    trying to improve rail infrastructure by providing $50 million in
    grants. Additionally, my bill will provide financial assistance to
    areas such as Long Island and Westchester to close very dangerous
    platform gaps that exist. We cannot wait any longer.
        I look forward to working with this Committee and hope that as the
    Committee moves forward with a rail safety bill, it will consider my
    legislation, and the positive effect it could have on our Nation's rail
    network. I thank the Committee for holding this hearing, and will be
    submitting a more extensive written statement for the record. Rail
    companies must be held accountable for dropping the ball when it comes
    to rail safety, but we must do out best to compensate for their
    shortcomings. Thank you.

        Senator Lautenberg. Thank you both very much. It's obvious
    that the things that you talk about have to be up in the
    forefront of our minds because of the pitifully small number of
    safety inspectors out there. Some 400 when you consider there
    are 700 railroads employing over 230,000 people with millions
    of miles of track. And railroads are adding an enormous amount
    of efficiency to the way our country functions.
        As a matter of fact after coal the next largest items that
    railroads carry are truck containers filled and are carried
    cross country or to their destination with the least amount of
    congestion. And so we thank you, as our neighbors in New York,
    I am pleased at the prospect of additional rail service being
    available. For example, coming into Penn Station from Long
    Island and another available service tunnel in the Hudson
    River.
        So we thank each of you and I'll assume no questions from
    my colleagues and we'll excuse you to go on with your other
    important work. Thank you.
        And with that I would ask my colleagues for their brief
    statements. First, starting with our Ranking Member, Senator
    Smith. If you could contain comments to 5 minutes, it would be
    appreciated. We have several panels.

                  STATEMENT OF HON. GORDON H. SMITH,
                        U.S. SENATOR FROM OREGON

        Senator Smith. It won't take me that long, Mr. Chairman.
        Senator Lautenberg. Thank you.
        Senator Smith. As we listen to our colleagues it's easy to
    think and conclude that the glass is half empty. But there's
    another view that the glass is half full. And that is in no way
    meant to excuse any accident. And certainly the role of this
    Committee and the legislation we're considering is to take the
    number of accidents and drive them down further still.
        But it is interesting to note that since 1980, when the
    rails were deregulated overall train accidents have fallen 70
    percent from 1980 to 2006; 2006 was the safest year on record.
    And I think it's important to note that, so it's not all bad.
    But certainly we can't be satisfied with any accident and that
    each one is a call to do more.
        As I look at what is being done regulatorily and to private
    industry initiatives, I'm encouraged. I look forward to hearing
    our witnesses on issues such as limbo time and to address rail
    worker concerns and private industry initiatives such as the
    positive train control to improve safety. We're at the ten-year
    mark since the last reauthorization of the Federal Rail
    Administration. And so I look forward to working with you, Mr.
    Chairman, and my other colleagues to go from where we are to
    even better. Thank you.
        Senator Lautenberg. Thanks very much, Senator Smith.
    Senator Klobuchar?

                   STATEMENT OF HON. AMY KLOBUCHAR,
                      U.S. SENATOR FROM MINNESOTA

        Senator Klobuchar. Thank you, Mr. Chairman. Thank you for
    the work you're doing on this issue both of you.
        Railroads are important to my state, the state of
    Minnesota. I remember growing up and my only vacations until I
    was about eight were on The Milwaukee Road to The Milwaukee to
    see my grandma. And I would record every stop we took on the
    train. And lately as we expand our ethanol and other products
    out of our rural area we're relying more and more on rail.
        The good news, as Senator Smith was saying is that we're
    seeing more use of our rail. But the bad news is we recently
    have seen some increased accidents and facility traffic. And
    we've seen some fatalities as well. In my state there were nine
    reported fatalities and 65 total collisions in 2005 alone.
    We've had a number of trains derail near populated areas. And
    so there's growing concern about what's happening.
        So I'd like to commend the Chairman for his work in this
    area. And look forward to hearing from our witnesses. Thank
    you.
        Senator Lautenberg. Thank you, Senator Klobuchar. We now
    want to call our panel to the table. That's Ms. Jo Strang, the
    Associate Administrator for Safety at the FRA. And Ms. Strang,
    please give our best to Administrator Joe Boardman and his
    family. We're pleased to see you, but we understand that he
    couldn't be here today due to an emergency. And we look forward
    to your testimony.
        Mr. Sumwalt, Vice Chairman of the National Transportation
    Safety Board. We welcome you. And Mr. Kurt Hyde, Assistant
    Inspector General for Surface and Maritime Programs at the
    United States Department of Transportation. And Katherine
    Siggerud, who is Director of Physical Infrastructure Issues at
    Government Accountability Office.
        Thank you all for joining us and I would ask you to limit
    your testimony, if you can please, to not more than 5 minutes.
    I would ask if you can summarize your statements. Welcome.

          STATEMENT OF JO STRANG, ASSOCIATE ADMINISTRATOR FOR

                SAFETY, FEDERAL RAILROAD ADMINISTRATION,

                   U.S. DEPARTMENT OF TRANSPORTATION

        Ms. Strang. Chairman Lautenberg, members of the
    Subcommittee, I am honored to appear before you today
    representing Secretary of Transportation Mary Peters and
    Federal Railroad Administrator Joe Boardman to discuss railroad
    safety and the need to reauthorize the Federal Rail Safety
    Program. In February the Administration presented its rail
    safety reauthorization bill, the Federal Railroad Safety
    Accountability and Improvement Act. We are very grateful,
    Chairman Lautenberg that in March you introduced the bill by
    request for yourself and Senator Smith as S. 918.
        Mr. Boardman is home in New York dealing with family
    medical concerns. He particularly regrets not being here today
    as enacting a meaningful rail safety reauthorization is his
    highest priority. He has asked me to make several points to the
    Committee being sure to emphasize that the future of safety is
    about managing risk. And that FRA needs Congress to provide us
    the authority to regulate hours-of-service which relates
    directly to the most significant risk facing the rail industry.
        In making these points I wish to offer a little context. In
    2006, the railroad industry had the lowest rate of employee
    casualties in its history. What was once one of the most
    dangerous industries from its employee's perspective is now one
    of the safest. This accomplishment is all the more notable when
    it is viewed in the context of an industry that is moving
    record levels of traffic over systems substantially smaller
    than existed 30 years ago and then the hiring of new employees
    at a record pace to address a major wave of retirement.
        Further improvements will require an--approaches however.
    While safety has improved substantially over the last three
    decades the rate of improvement has slowed and significant
    challenges must be addressed. FRA's accident statistics
    indicate that human factors and track-caused accidents are the
    two leading causes of accidents by a large margin over other
    causes indicating the need to rethink our role in supporting
    key elements at the railroads, the employees and the
    infrastructure.
        We are doing research to determine those areas where stress
    on the system, be it human stress or mechanical stress,
    increase risk. We are also developing technologies that can
    monitor stress; and can focus the attention of the railroads
    and FRA safety inspectors on those areas where the risk is the
    greatest.
        Through the knowledge we gain here we can help focus the
    efforts of the railroads and the efforts of FRA in regulation
    and enforcement of those areas that represent the greatest
    risk. And thus present the greatest opportunities for safety
    improvement.
        One out of four of the most serious human factor accidents
    appear to include fatigue among the causal elements. We passed
    the one hundredth anniversary of the Hours of Service Act on
    March 4. And that substance has not been amended for over 37
    years. For the past 25 years the National Transportation Safety
    Board has been calling attention to the apparent role of
    fatigue in major train accidents.
        Last November, FRA released a study that reported the
    largest body of fatigue related data from the railroad industry
    ever made public. The study documented the successful
    validation and calibration of the fatigue model that can be
    used to evaluate the scheduling of railroad operating
    personnel. We propose to sunset the Hours of Service Act but
    retain its protections as interim regulations. We would then
    convene a Railroad Safety Advisory Committee to develop new
    science based requirements that can help us reduce human factor
    accidents and casualties.
        We will need revised benchmark limits on work hours and
    requirement progress periods to provide simple guidance for
    thick schedules where it will suffice. With the tools now
    available we will also be able to recognize fatigue management
    approaches to include careful evaluation of a variety of more
    flexible work schedules using validated techniques. I would
    expect that regulations resulting from the Department's bill
    would significantly reduce the allowable hours-of-service. This
    is necessary to improve safety but it does not mean that
    employees will necessarily work fewer hours in a year.
        We need to schedule smarter. Set reasonable limits on
    maximum hours worked in a given day and make sure off-duty time
    is proportional to total time in service including time spent
    awaiting transportation and time in transportation. We need to
    avoid schedules that promote cumulative sleep deficits and
    limit rest interruptions.
        Track-caused accidents are the second largest category of
    train accidents comprising 33 percent of all train accidents.
    Some of the leading causes of track-caused accidents are
    difficult to detect during normal wear and operations. We have
    taken many steps to improve track safety that are detailed in
    my written statement.
        However, we've introduced new technology with a high-speed,
    high-resolution camera to detect cracks in joint bars which has
    proven to be successful. We are currently modifying the
    software so that the crack identification will become
    automatic. We have implemented the requirement and safety rule
    and have issued new regulations for continuous welded rail.
        That concludes my statement. I'll be happy to take any
    questions. Thank you.
        [The prepared statement of Ms. Strang follows:]

     Prepared Statement of Jo Strang, Associate Administrator for Safety,
       Federal Railroad Administration, U.S. Department of Transportation
        Chairman Lautenberg, Ranking Member Smith, and other members of the
    Subcommittee, I am very pleased to be here today, on behalf of the
    Secretary of Transportation and Administrator Boardman, to discuss the
    reauthorization of the Federal Railroad Administration's (FRA) rail
    safety program.
        In February, the Administration presented its rail safety
    reauthorization bill, the Federal Railroad Safety Accountability and
    Improvement Act. In March, Chairman Oberstar of the House Committee on
    Transportation and Infrastructure introduced the Administration bill,
    by request, for himself and Ranking Member Mica and the leaders of the
    Subcommittee on Railroads, Pipelines, and Hazardous Materials. We are
    very grateful, Chairman Lautenberg, that in the same month you also
    introduced the Administration bill, by request, for yourself and
    Senator Smith. The Administration bill has been designated as H.R. 1516
    and S. 918, respectively.
        In addition to proposing to reauthorize FRA's vital safety mission,
    this bill calls for important--and in some cases historic--substantive
    changes in the rail safety laws that we expect will materially improve
    safety. I look forward to working with you to help secure their
    enactment.
        Before I discuss the major provisions of the bill, my testimony
    will begin with an overview of how FRA is working daily to reduce both
    the frequency and the severity of railroad accidents. My testimony will
    then highlight the real and substantial progress FRA has made in
    implementing our National Rail Safety Action Plan, and I will touch on
    our passenger safety rulemakings and other key safety initiatives.
    I. FRA's Railroad Safety Program
        FRA is the agency of the U.S. Department of Transportation (DOT)
    charged with carrying out the Federal railroad safety laws. These laws
    provide FRA, as the Secretary's delegate, with very broad authority
    over every area of railroad safety. In exercising that authority, the
    agency has issued and enforces a wide range of safety regulations
    covering a railroad network that employs more than 232,000 workers,
    moves more than 42 percent of all intercity freight, and provides
    passenger rail service to more than 500 million persons each year.
        FRA's regulations address such topics as track, passenger
    equipment, locomotives, freight cars, power brakes, locomotive event
    recorders, signal and train control systems, maintenance of active
    warning devices at highway-rail grade crossings, accident reporting,
    alcohol and drug testing, protection of roadway workers, operating
    rules and practices, locomotive engineer certification, positive train
    control, the use of locomotive horns at grade crossings, and many other
    subject areas. FRA currently has active rulemaking projects on a number
    of important safety topics, many of which will be described later in
    this testimony. FRA also enforces the Hazardous Materials Regulations,
    promulgated by DOT's Pipeline and Hazardous Materials Safety
    Administration (PHMSA), as they pertain to rail transportation.
        FRA has an authorized inspection staff of about 400 persons
    nationwide, distributed across its eight regions. In addition, about
    160 inspectors employed by the approximately 30 states that participate
    in FRA's State participation program also perform inspections for
    compliance with the Federal rail safety laws. Each inspector is an
    expert in one of five safety disciplines: Track; Signal and Train
    Control; Motive Power and Equipment; Operating Practices; or Hazardous
    Materials. FRA also has 18 full-time highway-rail grade crossing safety
    and trespass prevention specialist positions in the field. Every year
    FRA's inspectors conduct tens of thousands of inspections, investigate
    more than 100 railroad accidents, investigate thousands of complaints
    of specific alleged violations, develop recommendations for thousands
    of enforcement actions, and engage in a range of educational outreach
    activities on railroad safety issues, including educating the public
    about highway-rail grade crossing safety and the dangers of trespassing
    on railroad property.
        FRA closely monitors the railroad industry's safety performance,
    and the agency uses the extensive data gathered to guide its accident
    prevention efforts. FRA strives to continually make better use of the
    wealth of available data to achieve the agency's strategic goals. FRA
    also sponsors collaborative research with the railroad industry to
    introduce innovative technologies to improve railroad safety. Finally,
    under the leadership of the U.S. Department of Homeland Security (DHS),
    FRA actively plays a supportive role in Federal efforts to secure the
    Nation's railroad transportation system.
    II. The National Rail Safety Action Plan (Action Plan)
    A. Genesis and Overview of the Action Plan
        As detailed in Appendix A to my testimony, the railroad industry's
    overall safety record has improved dramatically over the past few
    decades, and most safety trends are moving in the right direction.
    However, serious train accidents still occur, and the train accident
    rate has not shown substantive improvement in recent years. Moreover,
    several major freight and passenger train accidents in 2004 and 2005
    (such as those at Macdona, Texas; Graniteville, South Carolina; and
    Glendale, California) raised specific concerns about railroad safety
    issues deserving government and industry attention.
        As a result of these concerns, in May 2005, the U.S. Department of
    Transportation (DOT) and FRA initiated the National Rail Safety Action
    Plan (Action Plan), a comprehensive and methodical approach to address
    critical safety issues facing the railroad industry. The Action Plan's
    goals broadly stated are:

       Target the most frequent, highest-risk causes of train
            accidents;

       Focus FRA's oversight and inspection resources on areas of
            greatest concern; and

       Accelerate research efforts that have the potential to
            mitigate the largest risks.

        The causes of train accidents are generally grouped into five
    categories: human factors; track and structures; equipment; signal and
    train control; and miscellaneous. From 2002 through 2006, the vast
    majority of train accidents resulted from human factor causes or track
    causes. Accordingly, human factors and track have been our primary
    focus to bring about further improvements in the train accident rate.
        Overall, the Action Plan includes initiatives intended to:

       Reduce train accidents caused by human factors;

       Address employee fatigue;

       Improve track safety;

       Enhance hazardous material (hazmat) safety and emergency
            preparedness;

       Strengthen FRA's safety compliance program; and

       Improve highway-rail grade crossing safety.

        Allow me to discuss the progress that has been made in fulfilling
    the Action Plan's objectives and how that is advancing FRA's railroad
    safety mission.
    B. Implementation of Action Plan Initiatives
    1. Reducing Train Accidents Caused by Human Factors
        Accidents caused by human factor causes constitute the largest
    category of train accidents, accounting for 39 percent of all train
    accidents in the 5 years from 2002 through 2006. Preventing such
    accidents is a high priority under the Action Plan.
    a. Development of Rulemaking To Address Leading Causes of Human Factor
            Accidents
        FRA has been concerned that several of the leading causes of human
    factor accidents are not presently covered by any specific Federal
    rule, and these causes can have serious consequences. As a result, in
    May 2005, FRA asked its Railroad Safety Advisory Committee (RSAC) to
    develop recommendations for a new human factors rule to address the
    leading causes of human factor accidents. This effort helped lead to
    FRA's issuance of a notice of proposed rulemaking (NPRM) in October
    2006, to federalize core railroad operating rules governing the
    handling of track switches, leaving cars in the clear, and shoving rail
    cars. See 71 FR 60371.
        The NPRM proposes to establish greater accountability on the part
    of railroad management for the administration of programs of
    operational tests and inspections, and greater accountability on the
    part of railroad supervisors and employees for compliance with those
    railroad operating rules that are responsible for approximately half of
    the train accidents related to human factors. FRA believes this will
    contribute positively to railroad safety, by emphasizing the importance
    of complying with fundamental railroad operating rules and providing
    FRA a more direct means of promoting compliance with those rules.
        The final rule is expected to be issued later this year, and it is
    intended to supersede Emergency Order Number 24, which FRA issued in
    October 2005, in response to an increasing number of train accidents
    caused by hand-operated, main track switches in non-signaled territory
    being left in the wrong position and the potential for catastrophic
    accidents, such as the one in Graniteville, SC, in January 2005, which
    resulted in nine deaths. The Emergency Order requires special handling
    of hand-operated main track switches in non-signaled territory, as well
    as instruction and testing of employees in railroad operating rules
    pertaining to such track switches, and is expected to remain in place
    until the final rule addressing the major causes of human factor
    accidents is promulgated and becomes effective.
        The final rule will complement existing FRA regulations that
    address other human factor causes. For example, FRA's regulations on
    alcohol and drug use by operating employees were the first such
    standards in American industry to incorporate chemical testing, and
    they have been very successful in reducing accidents resulting from the
    use of illicit substances. FRA also has regulations on locomotive
    engineer certification, and enforces the Federal hours-of-service
    restrictions, which at present are wholly governed by statute.
    b. Launch of ``Close Call'' Pilot Research Project
        ``Close calls'' are unsafe events that do not result in a
    reportable accident but could have done so. FRA is working to better
    understand these phenomena. In other industries, such as aviation,
    adoption of close-call or ``near miss'' reporting systems that shield
    the reporting employee from discipline (and the employer from punitive
    regulatory sanctions) has contributed to major reductions in accidents.
    In March 2005, FRA completed an overarching Memorandum of Understanding
    (MOU) with railroad labor organizations and management to develop pilot
    programs to document the occurrence of close calls. Pilot programs
    would be established at three freight railroad sites and on one
    passenger railroad. In August 2005, FRA and DOT's Bureau of
    Transportation Statistics (BTS) entered into an MOU stipulating that
    BTS will act as a neutral party to receive the close-call reports and
    maintain the confidentiality of the person making the report. By
    studying and closely analyzing these reports, we hope to enrich our
    understanding of the factors involved in such events and to discern
    whether there are identifiable patterns that influence safety outcomes.
        Union Pacific Railroad Company (UP) signed an MOU for its North
    Platte Service Unit to be the first site for this project. The first
    report from this site was received in February 2007, and as of April
    2007, BTS is receiving approximately two reports per day from this
    site. This rate of reporting close calls greatly exceeds expectations
    based on prior close call reporting systems, and indicates that the
    implementation was extremely successful at this site. Canadian Pacific
    Railway Ltd. (CP) and railroad labor representatives in Portage, WI,
    have recently produced a draft MOU to implement a close-call reporting
    system, and FRA anticipates that this CP site will become active by the
    end of September 2007. BNSF Railway Company (BNSF) and several labor
    unions have been exploring participation in the project as the third
    freight railroad site, but a final decision is still pending. Several
    passenger railroads have also been considering participation in the
    project. FRA anticipates that all four sites will be active by the end
    of FY 2008.
    c. Development and Implementation of Promising Technologies To Improve
            Safety through Redundant Safety Systems
        Technology can be a tremendous aid to safety, providing a safety
    net when human beings make a mistake or become incapacitated.

       Positive Train Control (PTC) Systems. PTC systems are
            capable of automatically preventing train collisions (with
            positive stop protection), preventing over-speed derailments,
            and protecting roadway workers within their authorities.
            Recognizing the safety benefits of PTC systems, as well as
            their potential to improve rail efficiency by safely increasing
            the capacity of high-density rail lines, FRA issued a final
            rule in 2005 entitled, ``Performance Standards for Processor-
            Based Signal and Train Control Systems.'' See 49 CFR part 236.
            Earlier, FRA worked with Amtrak and other stakeholders to
            assist in the development of PTC systems in support of high-
            speed passenger rail. The results included the Advanced Civil
            Speed Enforcement System, which, combined with cab signals and
            automatic train control, safeguard operations up to 150 mph on
            the Northeast Corridor. In addition, the Incremental Train
            Control System was deployed on Amtrak's Michigan line and
            currently supports operations up to 95 mph (planned for 110 mph
            when validation and verification work is complete on the final
            system).

         In January 2007, FRA approved operational use of the first
                PTC system intended for general use, BNSF's Electronic
                Train Management System. The rail industry is actively
                advancing the implementation of PTC technology as other
                railroads--among them, UP, Norfolk Southern Railway Company
                (NS), CSX Transportation, Inc. (CSX), and the Alaska
                Railroad--are all making significant strides to develop PTC
                systems. The Association of American Railroads (AAR) will
                play a critical role in finalizing interoperability
                requirements for these technologies.

       Switch Point Monitoring System and Other Systems. There are
            steps that can be taken short of PTC to reduce accident risk in
            non-signalized (dark) territory. In November 2005, FRA
            partnered with BNSF through a $1 million Switch Point
            Monitoring System pilot project to develop a low-cost system
            that electronically monitors, detects, and reports a misaligned
            switch on mainline track located in non-signaled territory.
            These mechanisms are designed to provide an additional layer of
            protection to avert the consequences of an improperly lined
            switch. The project involves the installation of wireless
            communication devices at 49 switches along a 174-mile section
            of non-signaled BNSF track between Tulsa and Avard, Oklahoma.
            Train dispatchers at an operations center in Fort Worth, Texas,
            are monitoring the devices to detect when the hand-operated
            switches are set in the wrong position. If a switch is
            misaligned, the dispatcher directs a train to slow down or stop
            until railroad crews in the field confirm it is safe to
            proceed. Thus far, no unsafe failures have been reported, and
            BNSF plans expansion of this and similar types of systems to
            other non-signaled territory. Along with the human factors
            rulemaking, this new switch monitoring system may prevent
            future train accidents such as the one at Graniteville, SC,
            which resulted from an improperly lined main track switch in
            non-signaled territory.

         BNSF is also demonstrating rail integrity circuits, which
                can detect broken rails and alert the dispatcher much in
                the same way as the switch point monitoring technology.
                Both of these technologies are ``forward-compatible'' with
                PTC, meaning that they can be integrated into PTC as it is
                deployed on the subject territories.

       Electronically Controlled Pneumatic (ECP) Brakes. During the
            1990s, the AAR led an industry effort to develop ECP brakes,
            which use an electronic train line to command brake
            applications and releases. ECP brakes apply uniformly and
            virtually instantaneously throughout the length of the train,
            provide health-status information on the condition of brakes on
            each car, respond to commands for graduated releases, and
            entirely avoid runaway accidents caused by depletion of train-
            line air pressure. ECP brakes shorten stopping distances on the
            order of 40 to 60 percent, depending on train length and route
            conditions. In turn, shortened stopping distances mean that
            some accidents that occur today might be avoided entirely and
            that the severity of those that do occur in the future might be
            reduced.

         FRA commissioned a study, released last year, that
                identified and quantified significant business benefits
                that could be realized with this technology through greater
                operational efficiencies. The study also suggested a
                migration plan that would start with unit train operations,
                focused initially on the Powder River Basin coal service.
                Since then, FRA has been working with the AAR, railroads,
                vendors, and the coal sector to generate momentum toward
                implementation of this cost-saving and, potentially, life-
                saving technology. In this regard, ECP brakes are one of
                the key features of FRA's Advanced Concept Train, a
                research-and-development prototype train specially designed
                and equipped with other improvements that is helping to
                demonstrate the potential of these new technologies across
                the Nation. FRA is also planning to develop a revised set
                of requirements for train air brakes that are more suitable
                for this new technology, by issuing a notice of proposed
                rulemaking sometime in the near future. Until a final rule
                is issued amending the train air brake requirements, we
                remain ready to review and respond to requests for relief
                from railroads interested in proceeding with ECP
                technology.

                     In March FRA approved a waiver request
                    from BNSF and NS to install ECP brake systems on trains
                    to demonstrate the safety and efficacy of the
                    technology. While providing that proper safeguards be
                    in place, the waiver permits trains equipped with ECP
                    brakes to travel up to 3,500 miles without stopping to
                    undergo certain routine brake inspections--more than
                    double the distance allowed by current Federal
                    regulations. FRA will carefully monitor the railroads'
                    compliance with the waiver, which will enable FRA to
                    gather extensive data, including data that could be
                    useful in developing the rulemaking.
    2. Addressing Fatigue
        Fatigue has long been a fact of life for many railroad operating
    employees, given their long and often unpredictable work hours and
    fluctuating schedules. Train crews may legally work an enormous number
    of hours in a week, month, or year. While commuter train crews often
    have some predictability in their work schedules, crews of freight
    trains rarely do. The long hours, irregular work/rest cycles, and lack
    of regular days off, combined, have a very deleterious effect on
    employee alertness. Railroads are necessarily 24-hour businesses, and
    the effects of ``circadian rhythms'' challenge the alertness of even
    well-rested employees, particularly in the early morning hours.
        The hours-of-service laws, originally enacted in 1907 and last
    substantially amended in 1969, set certain maximum on-duty periods
    (generally 12 hours for operating employees) and minimum off-duty
    periods (generally 8 hours, or if the employee has worked 12
    consecutive hours, a 10-hour off-duty period is required). However, FRA
    does not believe that the limitations in those laws are adequate to
    effectively control fatigue. The hours-of-service laws must be replaced
    with sound, scientifically-based regulations; later in my testimony I
    will discuss in detail the Administration proposal to bring about this
    long-overdue change. The proposal would allow for the use of modern
    learning on fatigue, including research FRA accelerated under the
    Action Plan.
    a. Accelerate Research on Railroad Crew Work History To Validate a
            Fatigue Model for Possible Use To Improve Crew Scheduling
        On November 29, 2006, FRA announced the release of a study which
    provides a strong, scientific rationale for evaluating railroad
    employee work schedules to address worker fatigue. The goal of the
    research was to determine if a fatigue model can accurately and
    reliably predict an increased risk of human error that could contribute
    to the occurrence of a train accident. The study documents, for the
    first time, the significant circadian influence on accidents caused by
    human factors (there is no circadian influence on accidents not caused
    by human factors). The study also documents a significant linear
    relationship between fatigue predicted by the model and the risk of a
    human factors accident. No relationship was found between fatigue and
    accidents not caused by human factors. FRA expects this information
    will aid the railroad industry in improving crew scheduling practices
    in order to reduce that risk. A model for detecting the point at which
    the risk of fatigue becomes hazardous could become an important part of
    a railroad's fatigue management plan. A similar approach is currently
    utilized by the U.S. Department of Defense.
        The National Transportation Safety Board (NTSB) has emphasized the
    role of sleep disorders in transportation accidents, and FRA recognizes
    that providing fatigue management information alone may not be
    sufficient. In October 2004, FRA published a safety advisory in the
    Federal Register, urging railroads to address sleep disorders through
    progressive company policies. Last September, FRA's RSAC adopted a task
    to develop recommendations on medical standards for safety-critical
    railroad employees. Parallel with this RSAC effort, FRA has awarded a
    contract to UP to conduct a sleep disorder assessment project. Findings
    and recommendations from this project are anticipated to be completed
    later this year. Management of sleep disorders is among the important
    elements of that effort, which is now well underway.
    3. Improving Track Safety
        Track-caused accidents are the second-largest category of train
    accidents, comprising 33 percent of all train accidents. Some of the
    leading causes of track-caused accidents are difficult to detect during
    normal railroad inspections. Broken joint bars, for example, are a
    leading cause, but the kinds of cracks in those bars that foreshadow a
    derailment-causing break are difficult to spot with the naked eye.
    Similarly, broken rails account for some of the most serious accidents,
    but the internal rail flaws that lead to many of those breaks can be
    detected only by specialized equipment.
    a. Demonstration of New Technology To Detect Cracks in Joint Bars
        FRA is developing an automated, high-resolution video inspection
    system for joint bars that can be deployed on a hi-rail vehicle to
    detect visual cracks in joint bars without having to stop the vehicle.
    In October 2005, a prototype system that inspects joint bars on both
    sides of each rail was successfully demonstrated. Testing showed that
    the high-resolution video system detected cracks that were missed by
    the traditional visual inspections. The system was then enhanced with
    new features to improve the reliability of joint bar detection and to
    add capabilities to include the Global Positioning System (GPS)
    coordinates for each joint to facilitate future inspection and
    identification. Additionally, software was developed to scan the images
    automatically, detect the cracked joint bar, and then send a message to
    the operator with an image of the broken joint bar. The new features
    were implemented and the system was tested and demonstrated in the
    summer of 2006. This year, FRA intends to make additional enhancements
    to increase the operating speed and implement a more rugged, simple,
    and robust detection system.
    b. Requirements for Enhanced Capability and Procedures To Detect Track
            Defects
        FRA is also addressing joint bar cracks on the regulatory front. As
    a direct result of a Congressional mandate in the Safe, Accountable,
    Flexible, Efficient Transportation Equity Act: A Legacy for Users
    (SAFETEA-LU) and of NTSB recommendations arising out of various
    accidents involving cracked joint bars, FRA published an interim final
    rule (IFR) in November 2005 concerning the inspection of joints in
    continuous welded rail (CWR) track. Subsequently, after soliciting
    public comment and advice from RSAC's Track Safety Standards Working
    Group, FRA issued a final rule in October 2006, which adopted portions
    of the IFR and made changes to other provisions. The final rule
    requires track owners to develop and implement a procedure for the
    detailed inspection--including on-foot inspection--of CWR rail joints,
    to identify joint bar cracks and joint conditions that can lead to the
    development of these cracks. Track owners must now also create and
    submit fracture reports to FRA whenever a cracked or broken joint bar
    is discovered in CWR track. Based on the data that FRA will collect
    from the fracture reports, FRA will establish a program to review the
    root causes of joint bar failure. In addition, the rule encourages
    railroads to develop and adopt automated methods to improve the
    inspection of rail joints in CWR track.
    c. Deployment of Two Additional Automated Track Inspection Vehicles
        Subtle track geometry defects, such as rails being uneven or too
    far apart, are difficult to identify during a typical walking or hi-
    rail inspection. That is why FRA has developed automated track
    inspection vehicles to enhance its capability to identify problems, and
    ensure that they are addressed, before a train accident occurs. In
    April, FRA began operating its two newest vehicles: the T19 (which is
    self-propelled), and the T20 (which is locomotive-towed). These new
    vehicles use a variety of technology to measure track geometry flaws.
    The measurements are recorded in real-time and at operating speed.
    Problem areas are identified by the GPS location and shared immediately
    with the railroad so appropriate corrective actions can be taken in a
    timely manner.
        Along with the T16, T17 and T18, FRA now has five automated track
    inspection vehicles that will allow the agency to inspect nearly
    100,000 track-miles each year, tripling the present capacity. In
    particular, FRA will be better able to focus its automated track
    inspection activities on high-volume rail lines that carry hazardous
    materials and passenger trains as well as to improve its ability to
    follow up more quickly on routes where safety performance by a railroad
    is substandard.
    4. Improving Hazmat Safety and Emergency Response Capability
        The railroad industry's record on transporting hazmat is very good.
    The industry transports nearly two million shipments of hazmat
    annually, ordinarily without incident. However, the Macdona, TX
    accident in 2004 and the Graniteville, SC accident in 2005, which
    together involved 12 deaths as the result of chlorine releases,
    demonstrate the potential for catastrophic consequences from certain
    train accidents. The agency is actively engaged in a variety of
    activities intended to reduce the likelihood that a tank car may be
    breached if an accident does occur, complementing our effort to reduce
    the likelihood of train accidents. Realizing that we cannot prevent all
    accidents, FRA has developed initiatives to ensure that emergency
    responders are fully prepared to minimize the loss of life and damage
    when an accident or release does occur.
        It is important to emphasize that these safety initiatives are in
    addition to, and complement efforts by, FRA, DHS and its Transportation
    Security Administration (TSA), and PHMSA to provide for the security of
    hazmat transported by rail. A major component of this effort has been
    PHMSA's March 2003 regulation requiring each shipper and carrier of
    significant quantities (placardable amounts) of hazmat to adopt and
    comply with a security plan. See 49 CFR  172.800 et seq. Last
    December, working closely with FRA and TSA, PHMSA published an NPRM to
    enhance the safety and security of certain highly hazardous materials
    transported by rail. See 71 FR 76833. Specifically, this proposal would
    require rail carriers of certain explosive, toxic inhalation hazard,
    and radioactive materials to assess the safety and security of the
    routes currently used for these materials and alternative routing
    options, and to make routing decisions based on those assessments. The
    comment period for the NPRM closed February 20, 2007. PHMSA and FRA
    have reviewed the comments, including comments presented at two public
    meetings, and are in the process of drafting a final rule. PHMSA and
    FRA are coordinating with TSA to ensure regulatory consistency between
    the two rules.
        As Administrator Boardman testified before the Committee in January
    on the general topic of rail security, the safety and security of
    hazmat transported by rail are often intertwined. I would be glad to
    update the Subcommittee on the many other security-related initiatives
    in this area, such as the section 333 conference on ways to minimize
    safety and security risks from the transportation by rail of TIH
    materials.
    a. Enhancements to Emergency Response Readiness
        Emergency responders presently have access to a wide variety of
    information regarding hazmat transported by rail. Railroads and hazmat
    shippers are currently subject to the hazard-communication requirements
    of the Hazardous Materials Regulations. In addition, these industries
    work through the American Chemistry Council's TRANSCAER
    (Transportation Community Awareness and Emergency Response) program to
    familiarize local emergency responders with railroad equipment and
    product characteristics. PHMSA publishes the Emergency Response
    Guidebook, with the intention that it may be found in virtually every
    fire and police vehicle in the United States.
        In March 2005, with FRA encouragement, the AAR amended its
    Recommended Operating Practices for Transportation of Hazardous
    Materials (now Circular No. OT-55-I) to expressly state that local
    emergency responders, upon written request, will be provided with a
    list ranking the top 25 hazardous materials transported by rail through
    their communities. This is an important step to allow emergency
    responders to plan for, and better focus their training on, the type of
    rail-related hazmat incidents that they could potentially encounter.
        In July 2005, again with FRA encouragement, CSX and CHEMTREC (the
    chemical industry's 24-hour resource center for emergency responders)
    entered into an agreement to conduct a pilot project to see if key
    information about hazmat transported by rail could be more quickly and
    accurately provided to first responders in the crucial first minutes of
    an accident or incident. The project is designed so that if an actual
    hazmat rail accident or incident occurs, CHEMTREC watchstanders, who
    interact with emergency response personnel, will have immediate access
    to CSX computer files regarding the specific train, including the type
    of hazmat being carried and its exact position in the train consist.
    CSX has advised that there has been sufficient use of the current
    system to begin evaluating the project. FRA is also working through the
    AAR to encourage the other major railroads to participate in a similar
    project.
        Finally, another pilot project is underway to evaluate the use of
    Railinc Corporation's Freightscope, a program that provides equipment
    search capabilities for hazmat shipments. The system was installed at
    CHEMTREC in December 2006, and it has the potential to more rapidly
    provide information about hazmat shipments on shortline and regional
    railroads to CHEMTREC watchstanders to improve information availability
    and reduce delays in emergency response. The pilot project is scheduled
    to last a year, and includes various tests to determine the system's
    effectiveness. Two tests have already been conducted with good results.
    b. Improvements in Tank Car Integrity Through Research and Development
            and Rulemaking
        Prior to the August 2005 enactment of SAFETEA-LU, FRA had initiated
    tank car structural integrity research stemming from the circumstances
    of the 2002 derailment in Minot, ND, which involved the release of
    anhydrous ammonia from tank cars punctured during the derailment.
    Current research being conducted for FRA by the Volpe National
    Transportation Systems Center (Volpe Center), part of DOT's Research
    and Innovative Technology Administration (RITA), involves a three-step
    process to assess the effects of various types of train accidents
    (e.g., a derailment or collision) on a tank car. The first phase is the
    development of a physics-based model to analyze the kinematics of rail
    cars in a derailment. The second phase is the development of a valid
    dynamic structural analysis model; and the third phase is an assessment
    of the damage created by a puncture and entails the application of
    fracture mechanics testing and analysis methods. This research is also
    studying the relative strength of various types of steel used to
    construct tank cars.
        In addition to research on strengthening the structural integrity
    of the tank car to reduce the potential that a collision will result in
    release of a hazardous commodity, the research is also evaluating the
    compatibility of new designs with the existing fleet to assure that new
    hazards are not unintentionally introduced. Several accident scenarios
    have been defined which will help focus research into improving the
    performance of secondary tank-to-tank impacts after an event has
    occurred. Specifically, work is concentrated on increasing the energy
    required to puncture a tank car for impacts to the side shell or head
    of the tank car. For impacts in yards, the research is evaluating
    technology such as pushback couplers, energy absorbers, and anti-
    climbing devices, designed to prevent the train from derailing.
        With the assistance of this ongoing research, FRA, in conjunction
    with PHMSA, is working to develop new hazardous material tank car
    safety standards in accordance with Section 9005 of SAFETEA-LU. We are
    currently consulting with railroads, shippers, and car manufacturers
    and have concluded three public meetings to gather information and
    views.
        To further these efforts, FRA signed a Memorandum of Cooperation
    with Dow Chemical Company, UP, and the Union Tank Car Company to
    participate in their Next Generation Rail Tank Car Project. The
    agreement provides for extensive information-sharing and cooperation
    between ongoing FRA and industry research programs to improve the
    safety of rail shipments of hazardous commodities, including toxic
    inhalation hazards and high-risk gases and liquids. Full-scale
    destructive testing of tank cars is also underway to establish a
    baseline for performance of existing cars and to help validate and
    refine FRA's predictive model for tank car crashworthiness. Two full-
    scale tests have been conducted to date at the Transportation
    Technology Center (TTC) in Pueblo, Colorado--the first on April 11,
    2007, and the second on April 26, 2007--and I would be glad to provide
    the Committee with additional information about this significant
    research.
    5. Strengthening FRA's Safety Compliance Program
    a. Implementation of National Inspection Plan
        FRA continually seeks ways to direct its inspection and enforcement
    efforts toward the issues and locations most in need of attention. To
    this end, FRA instituted the National Inspection Plan (NIP), an
    inspection and allocation program that uses predictive indicators to
    assist FRA in allocating inspection and enforcement activities within a
    given region by railroad and by state. The NIP was fully implemented
    across all of FRA's safety disciplines in March 2006. A reduction in
    both the number and the rate of train accidents is expected once the
    NIP has had time to take its full effect and FRA refines its
    application in response to actual experience.
    b. Revisions to Schedules of Civil Penalties for Safety Violations
        In December 2006, FRA published proposed statements of agency
    policy that would amend the 25 schedules of civil penalties issued as
    appendixes to FRA's safety regulations. The proposed revisions are
    intended to reflect more accurately the safety risks associated with
    violations of the rail safety laws and regulations, as well as to make
    sure that the civil penalty amounts are consistent across all safety
    regulations.
        Although the schedules are statements of agency policy, and FRA has
    authority to issue the revisions without having to follow the notice
    and comment procedures of the Administrative Procedure Act, FRA has
    provided members and representatives of the general public an
    opportunity to comment on the proposed revisions before amending them.
    FRA has received mixed comments on the proposals, and is currently
    evaluating all of the comments received in preparing final statements
    of agency policy.
    6. Fostering Further Improvements in Highway-Rail Grade Crossing Safety
        Deaths in highway-rail grade crossing accidents are the second-
    leading category of fatalities associated with railroading. (Trespasser
    fatalities are the leading category.) The number of grade crossing
    deaths has declined substantially and steadily in recent years.
    However, the growth in rail and motor vehicle traffic continues to
    present challenges.
    a. Issuance of Safety Advisory 2005-03
        In May 2005, FRA issued Safety Advisory 2005-03, which describes
    the respective roles of the Federal and State governments and of the
    railroads in grade crossing safety. It also specifically reminds
    railroads of their responsibilities to report properly to FRA any
    accident involving a grade crossing signal failure; to maintain records
    relating to credible reports of grade crossing warning system
    malfunctions; to preserve the data from all locomotive-mounted
    recording devices following grade crossing accidents; and to cooperate
    fully with local law enforcement authorities during their
    investigations of such accidents. FRA is also committed to providing
    technical assistance to local authorities in the investigation of
    crossing accidents where information or expertise within FRA control is
    required to complete the investigation. FRA has extensively distributed
    this advisory through national law enforcement organizations and
    through contacts with local agencies.
    b. Development of State-Specific Grade Crossing Safety Action Plans
        In June 2004, DOT and FRA issued an ``Action Plan for Highway-Rail
    Crossing Safety and Trespass Prevention'' that sets forth a series of
    initiatives in the areas of engineering, education, and enforcement to
    reduce and prevent highway-rail grade crossing accidents. As one of
    these initiatives, FRA began working with the State of Louisiana in
    March 2005 to develop its own action plan for grade crossing safety, to
    address high numbers of grade crossing accidents and deaths at the
    State level. The action plan focuses on reducing collisions between
    trains and motor vehicles at grade crossings where multiple collisions
    have occurred. After a cooperative effort between the Louisiana
    Department of Transportation and Development, Federal Highway
    Administration, FRA, and other stakeholders, the state approved the
    Action Plan in April 2006. FRA is encouraging other states with high
    numbers of grade crossing accidents and deaths to do the same, and is
    currently working with the state of Texas to develop such a plan.
    c. Focus on Pedestrian Safety
        In addition, FRA will work within the grade crossing safety
    community to determine appropriate responses to pedestrian fatalities
    at grade crossings. Early in 2006, the Transportation Research Board
    devoted an entire session of its annual meeting to pedestrian grade
    crossing safety issues in order to capture information on how to
    improve safety in this area. Later this spring, FRA will publish a
    compilation of information on existing pedestrian safety devices
    currently being used in the Nation so that those making decisions on
    methods to improve pedestrian safety may have useful resource material
    available.
    d. Inquiry on Safety of Private Grade Crossings
        In June 2006, FRA initiated an inquiry into the safety of private
    highway-rail grade crossings. Approximately 10 percent of grade
    crossing collisions occur at privately-owned crossings. However, there
    is little governmental safety oversight of these crossings, at either
    the state or Federal level. As a result, in cooperation with
    appropriate state agencies, FRA has been soliciting oral statements at
    a series of public meetings throughout the Nation on issues related to
    the safety of private grade crossings, including current practices
    concerning responsibilities for safety at these crossings, the adequacy
    of warning devices at the crossings, and the relative merits of a more
    uniform approach to improving safety at private crossings. Four
    meetings have been held, and the final meeting will take place in
    Syracuse, New York, on July 26. FRA has also opened a public docket on
    these issues, so that interested parties may submit written comments
    for public review and consideration. The statements made and comments
    received will help inform decisions on what action needs to be taken to
    address the safety of private grade crossings.
    C. Passenger Rail Safety Initiatives
        While the National Rail Safety Action Plan focuses on improving the
    safety of freight railroad operations and grade crossings, FRA has also
    been making important progress on the safety of railroad passengers.
    Let me highlight the agency's initiatives.
    1. Passenger Safety Rulemakings
        FRA is hard at work on several rulemakings specifically designed to
    improve rail passenger safety. First, as a result of consensus
    recommendations from RSAC, in August 2006 FRA proposed new passenger
    rail safety standards to improve evacuation of passengers from trains,
    to provide additional ways for rescuers to access the passenger car in
    case of an emergency, and to enhance onboard emergency communication
    systems. FRA is in the process of preparing the final rule, which is
    expected to be issued sometime in the near future. Moreover, a separate
    regulatory proposal is also in development within RSAC, focusing on
    passenger car emergency signage, low-location exit path marking, and
    emergency lighting. That proposal is based on American Public
    Transportation Association (APTA) standards for passenger safety and is
    intended to augment current Federal requirements.
        FRA is also preparing a proposed rule to implement the RSAC's
    recommendations to enhance structural strength requirements for the
    front of cab cars and multiple-unit locomotives. These enhancements
    would include the addition of ``energy deformation'' requirements
    specified in revised APTA standards.
    2. Gap Concerns
        Recent attention has been focused on passenger safety at stations
    with high-level platforms where there are gaps between passenger car
    doorways and the platform. On August 5, 2006, a young woman fell into a
    gap between the platform and the Long Island Rail Road (LIRR) commuter
    train she was exiting from, and was ultimately struck and killed by
    another train. FRA staff conducted an informal survey of standards used
    for determining gap distance, and found a great deal of variation in
    standards among commuter railroads. Visits to station platforms at six
    selected railroads found considerable variations in gap length. Setting
    and maintaining an acceptable gap is a complicated process affected by
    passenger equipment types, track maintenance, track curvature, and
    platform configuration. The gap is also affected when freight trains or
    specialized equipment must use the same track used for passenger
    boarding.
        FRA has made this issue a priority. FRA has established an RSAC
    task force on General Passenger Safety to specifically address safety
    concerns associated with issues such as platform gaps, safe boarding
    and debarking, and passenger casualties associated with the ``second
    train.'' The full task force has met twice and will also address other
    matters directly affecting passenger safety on or around station
    platforms and make any necessary recommendations to FRA for regulatory
    action.
    3. Passenger Safety Research and Development
       Crash Energy Management (CEM) Systems. Research has shown
            that passenger rail equipment crashworthiness in train-to-train
            collisions can be significantly increased if the equipment
            structure is engineered to crush in a controlled manner. For
            several years, FRA has been advancing this engineering
            approach, termed CEM, with strong support from the Volpe
            Center. First use of this concept on the North American
            continent was in design of Amtrak's Acela Express trainset. In
            March 2006, FRA successfully conducted a full-scale passenger
            train crash test at the TTC to evaluate new CEM technology that
            might be applied to conventional equipment. In this test, a
            passenger train that had been equipped with a CEM system that
            included sacrificial crush zones in unoccupied spaces, pushback
            couplers designed to retract and absorb energy, and specially
            designed anti-climbers to keep the train in line, better
            protected the spaces intended to be occupied by passengers and
            train crewmembers. Also tested were new passenger seats with
            special padding and new tables with crushable edges, to help
            prevent and mitigate passenger injuries. Use of this integrated
            CEM technology is expected to save lives by more than doubling
            the speed at which all passengers are typically expected to
            survive a train crash.

         The Southern California Regional Rail Authority
                (Metrolink) is in the process of procuring a new fleet of
                cars utilizing CEM technology. Metrolink's procurement is
                being facilitated by the completed work of the CEM Working
                Group, specially tasked in May 2005 to develop a detailed
                technical specification for implementing CEM technology in
                passenger rail cars. The South Florida Regional
                Transportation Authority (SFRTA) has joined Metrolink in
                procuring equipment using this specification, and FRA
                expects other passenger railroads to include the
                specification in future procurements of their own.

         In addition, FRA is working with APTA in developing
                industry-wide standards for applying CEM technology, such
                as push-back couplers and deformable anti-climbers, to
                conventional passenger cars. To help support this effort, a
                full-scale impact test of a multi-level passenger car into
                the rigid barrier at the TTC is planned for July 2007, as
                testing to date has involved single-level passenger cars.
                Data obtained from this test is expected to help specify
                the performance of multi-level passenger cars in
                conjunction with push-back couplers or deformable anti-
                climbers, or both.

       Rollover Rig. In May 2006, FRA unveiled a state-of-the-art
            Passenger Rail Vehicle Emergency Evacuation Simulator, also
            known as a ``Rollover Rig.'' It has the unique ability to roll
            a full-sized, commuter rail car up to 180 degrees, effectively
            turning it upside down, to simulate passenger train derailment
            scenarios. The Rollover Rig is already enhancing the ability of
            researchers to test strategies for evacuating passenger rail
            cars and to evaluate the performance of emergency systems in
            the cars, such as emergency lighting, doors, and windows. In
            addition, first responders nationwide now have a unique
            training tool to practice effective passenger rail rescue
            techniques safely when a rail car is on its side. FRA developed
            the Rollover Rig at a cost of $450,000. New Jersey Transit Rail
            Operations donated the commuter rail car used by the Rollover
            Rig, and the Washington Metropolitan Area Transit Authority
            agreed to house, operate, and maintain the simulator at its
            emergency response training facility located in Landover,
            Maryland.
    4. Collision Hazard Analysis
        ``Collision Hazard Analysis'' is a specific type of safety review
    that seeks to identify collision hazards and to develop reasonable
    solutions to eliminate or mitigate these hazards. Collision hazards
    include conditions and activities that increase the risk of collisions
    between trains or other on-track equipment, between trains and motor
    vehicles/pedestrians, or between trains and fixed objects along the
    right of way. FRA strongly believes that the performance of a Collision
    Hazard Analysis will strengthen and support the passenger rail system
    safety process that grew out of the combined experience of the agency
    and the commuter railroads under Emergency Order No. 20. FRA and the
    Volpe Center have partnered with APTA to conduct important pilot
    projects regarding Collision Hazard Analysis. During the first pilot
    project, FRA, the Volpe Center, and APTA worked cooperatively to train
    and mentor a hazard analysis team at Tri-Rail, SFRTA's commuter
    service, which volunteered to be the first commuter railroad to conduct
    this analysis. The Tri-Rail project proved very successful and served
    as the model for a Collision Hazard Analysis pilot project on the
    Virginia Railway Express, completed last fall. The effort was also very
    successful and provided further insight into the collision hazard
    analysis process. Based on positive experiences on both pilot projects,
    FRA strongly advocates that all commuter operators undertake a
    Collision Hazard Analysis. The analysis is especially useful for ``New
    Start'' rail projects where design and operational decisions can be
    readily influenced.
    III. Administration's Rail Safety Bill (H.R. 1516, S. 918)
        The Administration's rail safety reauthorization bill, the Federal
    Railroad Safety Accountability and Improvement Act, would reauthorize
    appropriations for FRA to carry out its rail safety mission for 4
    years. FRA has made a full copy of the proposal available on our
    website at http://www.fra.dot.gov/us/content/48, including the
    supporting analysis for each section. Let me take this opportunity to
    discuss the major provisions of the Administration bill and how they
    will further FRA's safety efforts.
    A. Authorizes Safety Risk Reduction Program and Protects
            Confidentiality of Risk Analyses Produced
        In order to enhance the accountability of railroads in assuming
    full responsibility for their own safety, the bill would authorize
    appropriations for the addition of a safety risk reduction program to
    supplement FRA's current safety activities and seeks Congressional
    endorsement of this pilot program. Since rail-related accidents,
    injuries, and deaths are already at low levels, FRA needs to augment
    our traditional behavior-based and design-specification-based
    regulations with a robust safety risk reduction program to drive down
    those key measures of risk at a reasonable cost and in a practical
    manner.
        In the safety context, a risk reduction program is intended to make
    sure that the systems by which railroads operate and maintain their
    properties are adequate to meet or exceed safety objectives. FRA
    continues to place greater emphasis on developing models of how
    railroads can systematically evaluate safety risks, in order to hold
    them more accountable for improving the safety of their operations,
    including implementing plans to eliminate or reduce the chance for
    workers to make mistakes that can lead to accidents or close calls. A
    safety risk reduction program could unify previous voluntary efforts in
    the human factors arena while extending similar techniques to
    management of risk in other arenas such as track safety.
        To encourage railroads to produce thorough, as opposed to
    superficial, risk analyses, a companion provision in the bill would bar
    public disclosure by FRA of records required under the safety risk
    reduction program, except for Federal law enforcement purposes. Also in
    order to promote the preparation of serious risk analyses by railroads,
    the provision would forbid discovery by private litigants in civil
    litigation for damages of any information compiled or collected under
    the program, and would forbid admission into evidence of the same
    information in civil litigation by private parties for damages. An
    example would be a commuter railroad that undertakes a hazard analysis
    and has a crossover near a bridge abutment. It is unlikely that the
    railroad would be able to remove the hazard (a derailment could send
    the cars into the fixed structure) but it could mitigate the risk by
    reducing speeds and training.
        FRA is mindful that any restriction of public access to information
    may be controversial and requires careful scrutiny. However, we are
    convinced that assuring confidentiality is essential to promote full
    disclosure by the railroads and their employees to make such programs
    meaningful and bring about tangible improvements in safety.
    B. Grants Rulemaking Authority Over Hours-of-Service
        As discussed earlier, human factors cause more than a third of all
    train accidents, constituting the largest category of train accident
    causes. Fatigue is at least a contributing factor in one of every four
    serious human factor train accidents. We believe that fatigued
    crewmembers have played an increasing role in railroad accidents over
    the past decade through poor judgment, miscommunication,
    inattentiveness, and failure to follow procedures. Our challenge is to
    ensure that crewmembers have adequate opportunity to rest, are free of
    disorders that can disrupt sleep, and are fully engaged in maintaining
    alertness.
        However, the statutory provisions that govern the hours-of-service
    of railroad train crews, dispatchers, and signal maintainers are
    antiquated--essentially a century old--and woefully inadequate to
    address present realities. For example, under those laws, train crews
    may work 8 hours on duty and 8 hours off-duty perpetually. Engineers
    and conductors often work 60 to 70 hours a week, and may be called to
    work during the day or night, which may disrupt sleep patterns and
    reduce their ability to function. See Appendix B.
        Moreover, those hours-of-service laws contain no substantive
    rulemaking authority. The lack of regulatory authority over duty
    hours--authority that other DOT agencies have with respect to their
    modes of transportation--has precluded FRA from making use of
    scientific learning on this issue of sleep-wake cycles and fatigue-
    induced performance failures. Behavioral science has progressed to the
    point that computer models can accurately predict the likely effect of
    given sleep and rest patterns on employee performance. The models
    provide useful guidance to aid employee scheduling, and, as I discussed
    earlier, FRA published a validation report of one such model in 2006.
    Yet, only UP is making use of a sleep model to evaluate its own crew
    scheduling practices. Most railroads have yet to integrate use of such
    models in their operations and have refrained from making public
    commitments to use this capability in the future. Further, over the
    past 15 years, the history of attempts by rail labor and management to
    improve fatigue management has not been marked by sustained progress.
        We recognize that specific amendments to the hours-of-service laws
    might mitigate fatigue. Yet, we believe that sincere attempts at short-
    term relief can also create constraints and unintended consequences
    that may limit the ability to provide optimal solutions downstream.
    Treating limbo time as on-duty time, for instance, may force carriers
    to reduce the length of many assignments to avoid the possibility of
    ``violations'' under circumstances where safety could not be seriously
    compromised, and may increase the cost of any further reforms. Hours-
    of-service issues are surprisingly complex, and they need to be
    properly considered within the overall context of fatigue prevention
    and management. FRA is committed to making significant progress in this
    area, but we need the regulatory authority to do so.
        We strongly recommend that the existing hours-of-service laws be
    replaced with flexible regulations based on a modern, scientific
    understanding of fatigue. Today, I am here asking for your support for
    legislation that will permit us to put into action what we have
    learned. The Administration bill first proposes to sunset the hours-of-
    service laws, but retain their protections as interim regulations
    embodying their substantive provisions. Next, the proposal calls for
    FRA, as the Secretary's delegate, to review the problem of fatigue with
    the assistance of the Railroad Safety Advisory Committee, and to
    develop as necessary new, science-based requirements that can help us
    reduce human factor-caused accidents and casualties. We believe revised
    ``benchmark'' limits are needed on work hours, and requirements for
    rest periods, to provide simple guidance for fixed schedules, where
    that will suffice.
        The bill would also authorize FRA to permit railroads to comply
    with an approved fatigue management plan as an alternative to complying
    with the ``benchmark'' limits in the regulations. With the tools now
    available, we will be able to recognize fatigue management approaches
    that include careful evaluation of a wide variety of more flexible work
    schedules by validated techniques. In fact, we believe most safety-
    critical railroad employees would be protected by performance-based
    fatigue management programs that will enhance safety while holding down
    costs.
        For public and employee safety, it is time to make a long-overdue
    change and grant us the rulemaking authority over hours-of-service to
    directly address the major cause of far too many train accidents.
    C. Promotes Highway-Rail Grade Crossing Safety
        Accidents at highway-rail grade crossings account for more than a
    third of all rail-related fatalities. The bill seeks to prevent
    highway-rail grade crossing collisions and make crossings safer through
    two main provisions.
    1. Requires Reports by Railroads and States to DOT on the
            Characteristics of
            Highway-Rail Grade Crossings
        Currently, reporting to the DOT National Crossing Inventory is
    strictly voluntary. FRA is the custodian of the inventory and the
    quality of the data is only as good as what states and railroads have
    historically reported. Too much data in the inventory has been
    outdated. The bill would remedy this by requiring that railroads and
    states provide the Secretary with current information regarding the
    country's approximately 230,000 highway-rail grade crossings. Mandatory
    reporting would make this unique national database more up to date and
    complete, which would help (i) States better rank their crossings by
    risk and channel resources to the most dangerous crossings first, and
    (ii) DOT and transportation researchers identify the most promising
    ways to reduce crossing casualties. The bill would therefore require
    initial reports on all previously unreported crossings and periodic
    updates on all crossings.
    2. Fosters Introduction of New Technology To Improve Safety at Public
            Highway-Rail Grade Crossings
        Fewer than half of the 140,000 public highway-rail grade crossings
    have active warning devices, which are expensive to install and
    maintain. Perversely, improvements at one crossing are often cited in
    tort actions to prove the inadequacy of protections at another
    crossing. Under the Administration bill, if the Secretary has approved
    a new technology to provide advance warning to highway users at a grade
    crossing, the Secretary's determination preempts any state law
    concerning the adequacy of the technology in providing the warning. FRA
    believes that this proposal would help encourage the creation and
    deployment of new, cost-effective technology at the Nation's
    approximately 80,000 public grade crossings that still lack active
    warning devices. For instance, under an FRA waiver the Twin Cites and
    Western Railroad Co. and its supplier successfully demonstrated a
    warning system designed for lower-volume roadways and rail lines using
    dedicated locomotives. The system uses GPS and a data radio link
    between the locomotive and each crossing. This product is now being
    commercialized by a major signal supplier.
    D. Expands FRA's Authority To Disqualify Individuals Unfit for Safety-
            Sensitive Service
        Another provision of the bill would expand FRA's existing
    disqualification authority to cover individuals who are unfit for
    safety-sensitive service in the railroad industry because of a
    violation of the Hazardous Materials Regulations related to
    transporting hazmat by rail. Currently, FRA may disqualify an
    individual only for a violation of the rail safety laws or regulations,
    not the Hazardous Materials Regulations, even though violation of the
    Hazardous Materials Regulations may involve a greater potential
    accident risk or consequence (in the event of an accident). This
    proposal would logically extend our disqualification authority over
    railroad employees and complement current initiatives to strengthen
    FRA's safety compliance program.
    E. Protects Rail Safety Regulations From Legal Attack on the Ground
            That They Affect Security and Repeals Statutory Requirement for
            DHS To Consult with DOT When Issuing Security Rules That Affect
            Rail Safety
        The bill would also bar legal challenges to DOT safety regulations
    on the basis that they affect rail security. In many cases, rail safety
    and security are intertwined, and part of the justification for certain
    DOT regulations is that they enhance rail security. The bill would
    clarify the scope of the Secretary's safety jurisdiction and help deter
    or quickly rebuff any challenge that DOT has exceeded its statutory
    authority in issuing such regulations.
        Of course, DHS would continue to exercise primary responsibility
    for the promulgation of rail security regulations. In this regard, the
    bill would repeal the statutory provision that, when issuing security
    rules that affect rail safety, DHS must consult with DOT. We believe
    the provision is unnecessary and confusing in light of other statutes,
    executive orders, and existing inter-Departmental cooperation under the
    DOT-DHS Memorandum of Understanding and its related annexes on rail
    security.
    F. Clarifies the Secretary's Authority To Issue Temporary Waivers of
            Rail Safety Regulations Related to Emergencies
        The bill would clarify that FRA, as the Secretary's delegate, may
    grant a temporary waiver without prior notice and an opportunity for
    public comment and hearing, if the waiver is directly related to an
    emergency event or needed to aid in recovery efforts and it is in the
    public interest and consistent with railroad safety. While FRA's normal
    practice is to set aside time for public comment and hearing on waiver
    petitions, this appreciably slows down issuance of waivers necessary
    for emergency response and recovery efforts. Yet granting a waiver
    without such procedures risks legal challenge. The provision would free
    FRA from this dilemma and allow the agency to support emergency
    response and recovery efforts by dispensing with prior notice and an
    opportunity for comment and hearing, and by otherwise expediting the
    process for granting waivers. Further, the relief granted would be
    temporary (a maximum of 9 months), and the normal waiver procedures
    would have to be followed to extend the temporary relief granted should
    doing so be necessary.
    G. Authorizes the Monitoring of Railroad Radio Communications
        Currently, FRA is permitted to monitor railroad radio
    communications only in the presence of an authorized sender or
    receiver, such as a railroad employee. Yet, when railroad employees
    know that FRA is present, they tend to be on their best safety
    behavior. Therefore, FRA cannot be sure whether the level of compliance
    observed is normal, and we are less able to identify what are, under
    ordinary circumstances, the most frequent and serious instances of
    noncompliance. Access to candid communications offsite would yield a
    truer picture of compliance levels.
        The bill would address this concern by letting FRA safety
    inspectors monitor and record railroads' radio communications over
    their dedicated frequencies outside of the presence of railroad
    personnel for the purpose of accident prevention (including accident
    investigation) and, with certain exceptions, to use the information
    received. The exceptions would be that the information (1) may
    generally not be used as direct evidence in any administrative or
    judicial proceeding, and (2) may not be released under the Freedom of
    Information Act. The information may, however, be used as background
    material for further investigation. Nor should there be concern that
    the information communicated is personal information. Railroad
    operating rules and procedures already require that all radio
    communications relate to railroad operations and prohibit railroad
    employees from using the radio for personal use.
        As FRA's objective of accident prevention is ordinarily fulfilled
    daily by conducting safety inspections of railroad operations and
    enforcing the rail safety laws, monitoring of radio communications
    would not only help achieve that objective, but would greatly improve
    the efficiency of those inspections, the accuracy of the results, and
    the effective deployment of FRA's limited inspection resources based on
    those more accurate results.
    H. Clarifies and Relaxes the Existing Statutory Provision on Moving
            Certain Defective Equipment for Repair
        Finally, I would like to mention that the bill would amend a
    complicated statutory provision that states the conditions for hauling
    a railroad car or locomotive with a safety appliance or power brake
    defect for repair without civil penalty liability, including the
    requirement that equipment be back-hauled to the nearest available
    repair point. Back-hauls required by statute can be both unsafe
    (because of the hazards related to switching a car out of one train and
    into another train), and inefficient (because the car is stopped from
    moving toward its destination and forced to go to a different place
    that is physically closer than the next forward point for repair). The
    proposal would allow the equipment to be moved to the next forward
    point of repair under clear regulatory safeguards for moving defective
    equipment that are more consistent with the movement-for-repair
    provisions applicable to vehicles with other types of defects, such as
    Freight Car Safety Standards defects.
        Further, the bill would also define some key statutory terms and
    then provide FRA, as the Secretary's delegate, with rulemaking
    authority to define others. Currently, FRA may provide only guidance on
    the meaning of these terms, and this has contributed to an atmosphere
    of uncertainty about the requirements of the statute in day-to-day
    application. For example, FRA has received many complaints over the
    years that cars have been hauled past a repair point that FRA does not
    consider to be a repair point. This proposal would, therefore, help
    dispel such uncertainty and promote understanding and compliance with
    the provisions governing the safe movement of equipment with a safety
    appliance or power brake defect.
        The Administration's bill does not include a provision that would
    revise the preemption provision at 49 U.S.C.  20106. While this is a
    very important issue, of interest to many on the Committee, I would ask
    that the Committee oppose the provision included as Section 3 of H.R.
    1401. This provision would overturn longstanding Supreme Court
    precedents, and ultimately be detrimental to railroad safety. It would
    eliminate national uniformity of regulation. It was clearly the
    intention of Congress in enacting section 20106 to establish national
    uniformity of regulation, which is a fundamental keystone of the
    railroad safety statutes. Railroads would instead be forced to attempt
    to comply with an endless number of ever changing and potentially
    conflicting state and local standards adopted by individual juries. If
    the Committee needs further information to address this important
    issue, FRA staff would be glad to provide assistance.
        I would like to emphasize that, while all of the provisions I have
    discussed are among the major provisions of the bill, there are other
    significant provisions I have not mentioned today that will also
    enhance rail safety. These include providing FRA rail security officers
    with greater access to Federal, State, and local law enforcement data
    bases, officer-protection warning systems, and communications for the
    purpose of performing the Administrator's civil and administrative
    duties to promote safety, including security, and for other purposes
    authorized by law. All of these provisions are set forth in the bill
    the Secretary presented in February, and I would be glad to discuss
    each of them in detail with you.
    IV. Conclusion
        FRA's approach to enhancing the safety of rail transportation is
    multifaceted. FRA personnel strive daily to implement comprehensive
    initiatives for safety assurance and hazard mitigation under the
    National Rail Safety Action Plan to make rail operations safer for the
    public and the rail transportation industry. The Administration's
    Federal Railroad Safety Accountability and Improvement Act would enable
    FRA not only to continue these efforts but to enhance safety
    systematically in many ways. I look forward to working with the
    Subcommittee to bring about the enactment of the Administration's bill,
    and to help make our Nation's railroad system ever safer. Thank you.
                                   Appendix A
                     The Railroad Industry's Safety Record
        The railroad industry's overall safety record is very positive, and
    most safety trends are moving in the right direction. While not even a
    single death or injury is acceptable, progress is continually being
    made in the effort to improve railroad safety. This improvement is
    demonstrated by an analysis of the Federal Railroad Administration's
    (FRA) database of railroad reports of accidents and incidents that have
    occurred over the nearly three decades from 1978 through 2006. See 49
    CFR part 225. (The worst year for rail safety in recent decades was
    1978, and 2006 is the last complete year for which preliminary data are
    available.) Between 1978 and 2006, the total number of rail-related
    accidents and incidents has fallen from 90,653 to 12,940, an all-time
    low representing a decline of 86 percent. Between 1978 and 2006, total
    rail-related fatalities have declined from 1,646 to 913, a reduction of
    44 percent. From 1978 to 2006, total employee cases (fatal and
    nonfatal) have dropped from 65,193 to 5,065, the record low; this
    represents a decline of 92 percent. In the same period, total employee
    deaths have fallen from 122 in 1978 to 16 in 2006, a decrease of 87
    percent.
        Contributing to this generally improving safety record has been a
    74-percent decline in train accidents since 1978 (a total of 2,864
    train accidents in 2006, compared to 10,991 in 1978), even though rail
    traffic has increased. (Total train-miles were up by 8.5 percent from
    1978 to 2006.) In addition, the year 2006 saw only 28 train accidents
    out of the 2,834 reported in which a hazardous material was released,
    with a total of only 69 hazardous material cars releasing some amount
    of product, despite about 1.7 million movements of hazardous materials
    by rail.
        In other words, over the last almost three decades, the number and
    rate of train accidents, total deaths arising from rail operations,
    employee fatalities and injuries, and hazardous materials releases all
    have fallen dramatically. In most categories, these improvements have
    been most rapid in the 1980s, and tapered off in the late 1990s. Causes
    of the improvements have included a much more profitable economic
    climate for freight railroads following deregulation in 1980 under the
    Staggers Act (which led to substantially greater investment in plant
    and equipment), enhanced safety awareness and safety program
    implementation on the part of railroads and their employees, and FRA's
    safety monitoring and standard setting (most of FRA's safety rules were
    issued during this period). In addition, rail remains an extremely safe
    mode of transportation for passengers. Since 1978, more than 11.2
    billion passengers have traveled by rail, based on reports filed with
    FRA each month. The number of rail passengers has steadily increased
    over the years, and since 2000 has averaged more than 500 million per
    year. Although 12 passengers died in train collisions and derailments
    in 2005, none did in 2006. On a passenger-mile basis, with an average
    about 15.5 billion passenger-miles per year since the year 2000, rail
    travel is about as safe as scheduled airlines and intercity bus
    transportation and is far safer than private motor vehicle travel. Rail
    passenger accidents--while always to be avoided--have a very high
    passenger survival rate.
        As indicated previously, not all of the major safety indicators are
    positive. Grade crossing and rail trespasser incidents continue to
    cause a large proportion of the deaths associated with railroading.
    Grade crossing and rail trespassing deaths accounted for 97 percent of
    the 913 total rail-related deaths in 2006. In recent years, rail
    trespasser deaths have replaced grade crossing fatalities as the
    largest category of rail-related deaths. In 2006, 525 persons died
    while on railroad property without authorization, and 365 persons lost
    their lives in grade crossing accidents. Further, significant train
    accidents continue to occur, and the train accident rate per million
    train-miles has not declined at an acceptable pace in recent years. It
    actually rose slightly in 2003 and 2004 (to 4.05 and 4.38,
    respectively) compared to that in 2002 (3.76), although it dropped in
    2005 (to 4.1) and 2006 (to 3.54).
        The causes of train accidents are generally grouped into five
    categories: human factors; track and structures; equipment; signal and
    train control; and miscellaneous. The great majority of train accidents
    are caused by human factors and track. In recent years, most of the
    serious events involving train collisions or derailments resulting in
    release of hazardous material, or harm to rail passengers, have
    resulted from human factor or track causes. Accordingly, the National
    Rail Safety Action Plan makes human factors and track the major target
    areas for improving the train accident rate.
                                   Appendix B
     Scientific Learning Demonstrating Inadequacy of Hours of Service Laws
        The following four examples illustrate some of the ways in which
    the existing hours-of-service statutory regime fails to reflect the
    latest scholarship on the subject of fatigue.
        First, current scientific information indicates that to feel well
    rested most people need approximately 8 hours of sleep per night. The
    current hours-of-service laws require a minimum off-duty period of only
    10 hours if an employee in train and engine service has worked 12
    consecutive hours in the previous 24-hour period. If an employee works
    11 hours and 59 minutes or less, the laws require a minimum rest period
    of only 8 hours. Very few employees work 12 consecutive hours;
    therefore, most may legally be called back to duty with only 8 hours
    off-duty. During that off-duty time, the employee must travel to and
    from work and attend to personal needs such as bathing and eating.
    Crew-calling practices allow the employee to be called as little as 2
    hours prior to the beginning of the next duty period. Given these
    circumstances, it is certain that the current law permits employees to
    work with less than 8 hours of sleep per night.
        An FRA study of locomotive engineers' sleep and work patterns found
    that the average locomotive engineer obtained 7.13 hours of sleep per
    night.\1\ Another FRA study of train handling performance conducted on
    a highly realistic locomotive simulator by locomotive engineers working
    under schedules that conformed with the hours-of-service laws \2\ found
    that engineers who worked 10 hours and had 12 hours off-duty, slept an
    average of only 6.1 hours. A similar group of engineers who also worked
    10 hours, but had only 9.3 hours off-duty, slept an average of only 4.6
    hours. Again, most people need about 8 hours of sleep per night;
    therefore, for most people, the amount of sleep these engineers
    received was insufficient even though their schedules fully conformed
    with the hours-of-service laws.
    ---------------------------------------------------------------------------
        \1\ Pollard, J.K. 1996. Locomotive engineer's activity diary.
    Report Number DOT/FRA/RRP-96/02.
        \2\ Thomas, G.R., Raslear, T.G., and Kuehn, G.I. 1997. The effects
    of work schedule on train handling performance and sleep of locomotive
    engineers: A simulator study. Report Number DOT/FRA/ORD-97-09.
    ---------------------------------------------------------------------------
        Second, scientific information also shows that the quantity and
    quality of sleep vary with the time of day. Most people sleep best at
    night; however, the current hours-of-service laws do not take the time
    of day when sleep can occur into account. Under those laws, engineers
    who quit work at dawn and have to sleep during the daytime, when it is
    harder to sleep, get the same minimum eight or 10 hours off as
    engineers who quit work in the evening and have the relative luxury of
    sleeping at night. The study by Pollard referenced earlier found that
    engineers, in fact, obtain the least sleep if their on-duty period ends
    between 5 a.m. and noon.
        Third, most mammals, including human beings, have an approximately
    24-hour sleep-wake cycle known as a ``circadian rhythm.'' Rapid changes
    in the circadian pattern of sleep and wakefulness disrupt many
    physiological functions such as hormone releases, digestion, and
    temperature regulation. Human function can be affected, performance may
    be impaired, and a general feeling of debility may occur until
    realignment is achieved. The maximum work periods and minimum off-duty
    periods specified in the current hours-of-service laws force sleep-wake
    cycles into a less-than-24-hour pattern that is highly unnatural and
    very difficult to adapt to. Jet lag when flying east is the most
    commonly experienced syndrome similar to the experience of consistently
    working on a less-than-24-hour cycle.
        Fourth, recent studies ``suggest that sleep loss (less than 7 hours
    per night) may have wide-ranging effects on the cardiovascular,
    endocrine, immune, and nervous systems, including the following:

       Obesity in adults . . .

       Diabetes and impaired glucose tolerance

       Cardiovascular disease and hypertension

       Anxiety symptoms

       Depressed mood

       Alcohol use[.]'' \3\
    ---------------------------------------------------------------------------
        \3\ Institute of Medicine of the National Academies. Sleep
    Disorders and Sleep Deprivation: an Unmet Public Health Problem (2006),
    p. 59.

        In other words, sleep loss, which the current hours-of-service
    regime permits railroad operating employees to suffer, contributes not
    only to the safety risk of fatigue, but also to a gamut of heath risks,
    including the risk of serious health problems such as diabetes,
    ---------------------------------------------------------------------------
    cardiovascular disease, and hypertension.

        Senator Lautenberg. Thank you very much. Mr. Sumwalt?

     STATEMENT OF HON. ROBERT L. SUMWALT, VICE CHAIRMAN, NATIONAL
                      TRANSPORTATION SAFETY BOARD

        Mr. Sumwalt. Good morning, Chairman Lautenberg, Ranking
    Member Smith, Members of the Subcommittee. Thank you for
    inviting the Safety Board to testify on rail safety issues that
    are being considered by Congress and for your continued
    interest in furthering the safety of our Nation's railways.
        I'd like to begin with the long history of fatigue-caused
    railroad accidents and the frustration that we share with the
    FRA regarding its lack of legislative authority to address the
    root causes of fatigue. The first railroad accident attributed
    by the Board to fatigue was a collision between two freight
    trains at 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 6 days a
    week, 11 to 12 hours each day. They were working their sixth
    consecutive day when the accident occurred. In Macdona we found
    that the crew member's failure to obtain sufficient rest before
    reporting for duty and the railroad scheduling practices each
    contributed to the accidents.
        Proposals being considered for legislation this year
    address specific elements of employee fatigue. However, we
    believe that a comprehensive fatigue management program is
    needed to consider scientifically based principles when
    assigning work schedules including: 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 off-duty periods. We believe
    the best means to achieve this result is through regulations
    promulgated by the FRA that can be modified as industry
    conditions evolve.
        I'd like to talk briefly now about positive train control.
    Technological solutions such as PTC systems have great
    potential to prevent serious train accidents by providing
    safety redundant systems to override mistakes by human
    operators. As mentioned, positive train control has been on the
    Safety Board's most wanted list for 17 years.
        In the past 10 years the Safety Board has investigated 52
    rail accidents--52 rail accidents that likely would have been
    prevented through the implementation of positive train control
    systems. And although we are encouraged with the efforts of
    some railroads, we know that positive train control systems are
    needed across the entire country.
        Next, are improperly positioned switches. One of the most
    serious train accidents occurred in dark territory in
    Graniteville, South Carolina in 2005. A train was diverted from
    the main track to an industry siding due to an improperly
    positioned switch where it struck a parked train.
        Later that year a similar accident occurred in Shepherd,
    Texas, again, in dark territory. The Safety Board first
    addressed this issue in 1974 after an accident in Cotulla,
    Texas where we recommended that the FRA address safe train
    speeds in dark territory. That recommendation was later
    classified by the Safety Board as Closed Unacceptable Action.
        We believe that automatically activated devices are needed
    to visually or electronically capture the attention of
    employees involved with switch operations in dark territory and
    to clearly convey the status of that switch. In absence of
    these automated systems 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 the tank cars toward the rear of trains and
    reducing speeds through populated areas.
        And finally a proposal for the Rail Passenger Disaster
    Family Assistance Act of 2007 which mirrors the Aviation
    Disaster Family Assistance Act of 1996. We believe that this
    legislation would be beneficial to the victims and their
    families following a rail disaster. However the Board has two
    concerns. The first is the 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.
        Mr. Chairman, this completes my statement. I'll be happy to
    respond to questions at the appropriate time.
        [The prepared statement of Mr. Sumwalt follows:]

         Prepared Statement of Hon. Robert L. Sumwalt, Vice Chairman,
                      National Transportation Safety Board
        Good morning Chairman Lautenberg, Ranking Member Smith, and Members
    of the Subcommittee. My name is Robert Sumwalt, Vice Chairman of the
    National Transportation Safety Board. Chairman Lautenberg, I would like
    to take this opportunity to thank you, the Members of the Subcommittee,
    and staff for inviting the Safety Board to testify today on several
    rail safety issues that are being considered in proposed rail safety
    legislation and for your continued interest in furthering the safety of
    our Nation's railways.
        The Safety Board is concerned about several rail safety issues that
    are being considered by this Subcommittee including train crew fatigue,
    the lack of positive train control systems to prevent train collisions,
    overspeed derailments, and improper switch positions in non-signaled
    (dark) territory.
    Train Crew Fatigue
        The Safety Board has investigated a decades-long history of
    fatigue-caused railroad accidents, and we have an equally long history
    of safety recommendations made to address the problem. We share the
    frustration with the Federal Railroad Administration (FRA) regarding
    its lack of legislative authority to address the root causes of fatigue
    through scientifically based principles of workload and fatigue
    management.
        We have investigated more than a dozen railroad accidents in which
    we believe train crew fatigue played a contributing role. The earliest
    railroad accident investigation in which the Board attributed the
    probable cause to fatigue was a collision between two freight trains at
    Wiggins, Colorado, in 1984. About a week later, two more freight trains
    collided near Newcastle, Wyoming. Again, the Board found that the
    probable cause was the crew of the striking train falling asleep and
    failing to comply with restrictive signals.
        Since 1984, fatigue-related train accidents have continued, such as
    the collisions between two freight trains at Anding, Mississippi, in
    2005 and at Macdona, Texas, in 2004. In Anding, the northbound train
    crew failed to comply with wayside signals requiring them to stop and
    their train hit a southbound train head-on killing all four
    crewmembers. The Safety Board examined the work/rest cycles of the
    northbound train crews and found that both the engineer and conductor
    had worked about 11\1/2\ hours per night and had been sleeping about
    5\1/2\ hours per night for the 3 days immediately before the accident.
    Both crewmembers typically worked 6 days a week, most often going on
    duty between 12 a.m. and 1 a.m., and were usually on duty for 11 to 12
    hours. They were working their sixth consecutive day when the accident
    occurred in Anding. Getting a repeatedly insufficient amount of sleep
    on a regular basis can impair human performance and alertness, and the
    crewmembers' short sleep periods likely allowed them to develop a
    cumulative sleep loss or sleep debt.
        In the Macdona accident investigation, the Safety Board found that
    both crewmembers did not obtain sufficient restorative rest before
    reporting for duty because of their ineffective use of off-duty time,
    and that the Union Pacific Railroad's train crew scheduling practices
    inverted the crewmembers' work/rest periods--both of which contributed
    to the accident. Work as a train crewmember entails an unpredictable
    job schedule that can make it difficult for employees to effectively
    balance their personal and work lives. We found that the
    unpredictability of Union Pacific train crewmembers' work schedules may
    have encouraged them to delay obtaining rest in the hope that they
    would not be called to work until later on the day of the accident.
        Fatigue related accidents have occurred across all regions of the
    country. The Safety Board has investigated at least one fatigue-caused
    accident on nearly every major railroad. Moreover, no type of railroad
    operation is immune from the effects of fatigue. Although the majority
    of fatigue accidents that we have investigated involve freight
    operations, our investigation case files contain fatigue accidents
    involving long-distance passenger trains, commuter trains, light rail
    operations, and even subway trains.
        The work schedules of rail crewmembers permit repetitive 12-hour
    days that lead to cumulative fatigue or sleep debt. When the workers'
    commute, limbo time and family/personal responsibilities are factored
    into their daily schedules, the conditions for exceedingly long days
    that lead to acute fatigue are evident. The relatively short mandatory
    periods of time off currently in place do not afford the opportunity
    for fully restorative sleep.
        Just as our accident history has identified the problem of fatigue
    in railroad accidents, the Safety Board's recommendation history has
    identified actions that we think could address the problem. In the past
    two decades, the Safety Board has issued 34 recommendations concerning
    railroad employee fatigue. The FRA received 8, the others have gone to
    rail carriers and operating unions. The Board has recommended that the
    railroad companies reduce the irregularity and unpredictability of
    crewmember's work/rest schedules and provide education and counseling
    to help them avoid sleep deprivation. And, we have asked all rail
    carriers to develop policies that would allow an employee to report
    off-duty, without penalty, when they are impaired by lack of sleep.
        The laws, rules, and regulations governing this aspect of
    transportation safety in the railroad industry fail to address the
    problem. The Railroad Hours of Service Act allows railroad operating
    employees to work 11 hours 59 minutes, and after only 8 hours off-duty
    return back to work. An employee who works the full 12 hours, just one
    more minute, would get 10 hours off-duty before being allowed to return
    to work. And, under the current law, these employees are permitted to
    repeat that arduous work-rest cycle an unlimited number of times. The
    Railroad Hours of Service Act does not take into account either
    rotating work schedules or the accumulated hours spent working in limbo
    time, which can be substantial--adding additional hours to the workday.
    The Railroad Hours of Service Act also does not take into account the
    significant effects of the human circadian rhythm upon a crewmember's
    level of alertness.
        The Macdona accident again prompted the Safety Board to issue new
    recommendations to FRA: R-06-14 to require railroads to use
    scientifically based principles when assigning work schedules, and R-
    06-15 to establish requirements that limit train crewmembers limbo
    time.
        FRA's October 24, 2006, response to the Board on these recent
    recommendations again stated that FRA lacks rulemaking authority over
    duty hours. This precludes the FRA from making use of almost a century
    of rigorous scientific research on the issue of sleep-wake cycles and
    fatigue-induced performance failures to try to reduce fatigue-related
    accidents. The FRA response letter further stated ``the FRA supports
    efforts to address the fatigue experienced by railroad operating
    employees, and acknowledges that the existing hours-of-service is not
    designed to address the causes of fatigue.'' The FRA has subsequently
    sought legislative authority to enact hours-of-service regulations.
        The Board strongly believes that the FRA needs authority to
    regulate crewmember work scheduling practices and work limits, and the
    Safety Board supports statutory change that would provide the FRA that
    authority.
        Proposals being considered for rail safety legislation this year
    include elements that address certain aspects of employee fatigue: at
    least 10 hours of undisturbed off-duty time with no contact during the
    period; at least 24 consecutive hours of rest in a 7-day consecutive
    work period; at least 48 hours off-duty after 7 consecutive 8-hour
    workdays; and eliminating limbo time or requiring an additional 4 hours
    of undisturbed off-duty time when limbo time exceeds an hour. The
    Safety Board believes that a comprehensive fatigue management program
    is needed that considers scientifically based principles when assigning
    work schedules, including 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
    off-duty periods. Although some of these elements may have a positive
    effect on improving training crews' adequate rest, without a
    comprehensive program, the Safety Board does not believe that train
    crew fatigue will be adequately addressed. We further believe that the
    best means to achieve this result is through regulations promulgated by
    the FRA that can be modified as industry conditions evolve.
    Positive Train Control
        Technological solutions, such as positive train control systems,
    have great potential to reduce the number of serious train accidents by
    providing safety redundant systems to protect against human performance
    failures. As a consequence, positive train control has been on the
    Safety Board's list of Most Wanted Safety Improvements for 17 years.
        In the past 10 years, the Safety Board has investigated 52 rail
    accidents, including 4 transit accidents, where the installation of a
    positive train control system would likely have prevented the accident.
    These include 5 accidents in 2005: Graniteville, South Carolina;
    Anding, Mississippi; Shepherd, Texas; Chicago, Illinois; and Texarkana,
    Arkansas.
        The objective of positive train control is to prevent train
    collisions and over-speed accidents by requiring automatic control
    systems to override mistakes by human operators. This issue was
    highlighted in 2002 when a freight train and a commuter train collided
    head-on in Placentia, California, a high-speed corridor where commuter
    and intercity passenger trains operate. As a result of the Placentia
    accident, the Safety Board reiterated Safety Recommendation R-01-6 to
    the FRA to facilitate actions necessary for development and
    implementation of positive train control systems that include collision
    avoidance, and require implementation of positive train control systems
    on main line tracks, establishing priority requirements for high-risk
    corridors such as those where commuter and intercity passenger
    railroads operate. The FRA published a final rule in the Federal
    Register titled ``Standards for Development and Use of Processor-Based
    Signal and Train Control Systems,'' which became effective on June 6,
    2005. As a result of FRA's responsiveness, Safety Recommendation R-01-6
    is classified ``Open--Acceptable Response.''
        We are pleased to note that today, several railroads are moving to
    develop positive train control systems. For example, in January of this
    year, the FRA approved a BNSF Railway project for its Electronic Train
    Management System (ETMS), an overlay technology that augments an
    existing train control method. The ETMS system includes an in-cab
    electronic display screen that will first warn of a problem and then
    automatically engage the train's braking system if the locomotive
    engineer fails to act appropriately. The FRA action allows BNSF to
    implement ETMS on 35 specific freight lines in 17 states.
        The Union Pacific Railroad (UP) is working on a communication-based
    train control system pilot project that will enforce stop signals, dark
    territory authority limits, and speed restrictions. Field tests are
    scheduled to be conducted on two test beds and will cover about 333
    miles of track. UP began installing test equipment on locomotives in
    September 2006.
        Although we are encouraged with progress underway by some
    railroads, we note that positive train control systems are needed on
    railroad systems across the entire United States. The Safety Board
    believes that positive train control systems should be required.
    Improperly Positioned Switches
        One of the most serious hazardous materials train accidents in
    recent years occurred in Graniteville, South Carolina, on January 6,
    2005, after a Norfolk Southern Railway Company freight train, while
    traveling 47 mph, encountered an improperly positioned switch that
    diverted the train from the main line onto an industry track, where it
    struck an unoccupied parked train. The track through Graniteville was
    non-signaled (dark) territory. Nine people died as a result of chlorine
    gas inhalation after a tank car was punctured during the accident.
        The investigation found that the improperly lined switch had most
    recently been used by the crew of a local train about 8 hours before
    the accident. The crew had lined the switch for an industry track in
    order to place two cars at a local plant and then park their train. No
    crewmember remembered relining the switch for the main line before they
    boarded a taxi and returned to the terminal. The Safety Board concluded
    that the local train crew failed to reline the main line switch for one
    or more of the following reasons: (1) the task of relining the switch
    was functionally isolated from other tasks the crew was performing, (2)
    the crewmembers were rushing to complete their work and secure their
    train before reaching their hours-of-service limits, (3) the crew had
    achieved their main objective of switching cars and were focused on the
    next task of securing their equipment and going off-duty, and (4) the
    switch was not visible to the crew as they worked, leaving them without
    a visual reminder to reline the switch.
        On September 15, 2005, a UP train entered a siding in Shepherd,
    Texas, at approximately 37 mph and struck a parked train, killing one
    crewmember. There were no wayside signals to govern the train movements
    or protect the train from an interruption in the continuity of the
    track, such as an open switch. Consequently, strict compliance with the
    operating rules was necessary to protect one train from another. The
    probable cause of this accident was the failure of a previous crew to
    return a main track switch to the normal position after they had
    secured the train on the siding and departed the area.
        The Safety Board was concerned as early as 1974 about the issue of
    train speeds in areas not under a form of centralized traffic control.
    As a result of its investigation of an accident in Cotulla, Texas,
    involving a misaligned switch in non-signaled territory, the Board
    recommended that the FRA determine and assess the current risks of
    train accidents involving misaligned switches, collisions, broken rail,
    and other route obstructions on main track where automatic block signal
    systems do not exist, and to promulgate regulations that detail the
    major risks and controls assumed, set guidelines for safe operations
    below the maximum operating speed, and assign responsibility to the
    carrier for safe operations. Because the FRA's actions did not satisfy
    the Safety Board's intent that new regulations specify circumstances
    that were required when trains operated below the allowable maximum
    speed, Safety Recommendation R-74-26 was classified ``Closed--
    Unacceptable Action.''
        Measures beyond additional operating rules, forms, or penalties are
    needed to ensure that accidents, such as the one in Graniteville, South
    Carolina, do not recur. On December 12, 2005, the Safety Board issued
    Safety Recommendation R-05-14 to the FRA to require that, along main
    lines in non-signaled territory, railroads install an automatically
    activated device, independent of the switch banner, that will, visually
    or electronically, compellingly capture the attention of employees
    involved with switch operations and clearly convey the status of the
    switch both in day and in darkness. In a letter dated June 30, 2006,
    the FRA acknowledged that additional actions are needed to protect the
    safety of trains in dark territory and that over time, positive train
    control will serve this function. However, it noted concern that any
    system that requires power at the switch location will involve
    significant costs simply because of the number of switches involved.
    The letter advises that the FRA has initiated a project to evaluate a
    system that it believes will be able to detect and report switch point
    gapping for switches on main line tracks located within dark
    territories as an alternate action.
        The Safety Board also recommended that the FRA require railroads,
    in non-signaled territory and in the absence of switch position
    indicator lights or other automated systems that provide train crews
    with advance notice of switch positions, to operate those trains at
    speeds that will allow them to be safely stopped in advance of
    misaligned switches (R-05-15). In its June 30, 2006, letter, the FRA
    states that it does not believe the recommendation is feasible for
    operational and economic reasons and may also increase the risk of
    derailments. The FRA hastened to add that there are undoubtedly certain
    situations where requiring trains to approach switches prepared to stop
    would be practical and an appropriate safety response and that
    railroads should consider this option as they conduct risk assessments
    of their hazardous materials routes. However, the FRA states that it is
    not aware of any means to describe how this strategy could be applied
    in a safe and cost-effective manner. The FRA requested that the Safety
    Board classify the safety recommendation as ``Closed--Reconsidered.''
        Finally, the Safety Board believes that modeling accident forces
    and applying fracture toughness standards, as recommended in the Minot,
    North Dakota, accident report, will improve the crashworthiness of tank
    cars transporting hazardous materials. However, because of the time it
    will take to design and construct improved tank cars, the Board
    believes that the most expedient and effective means to reduce the
    public risk from the release of highly poisonous gases in train
    accidents is for railroads to implement operational measures that will
    minimize the vulnerability of tank cars transporting these products.
    For example, in Graniteville, the chlorine tank car that was punctured
    was in the ninth position of 42 freight cars in the train; the front 16
    freight cars derailed. In Macdona, the punctured chlorine tank car was
    in the 16th position of 74 freight cars in the train; the front 19 cars
    in this train derailed. Following the Graniteville accident, the Board
    recommended that the FRA require railroads to implement operating
    measures, such as positioning tank cars toward the rear of trains and
    reducing speeds through populated areas to minimize impact forces from
    accidents and reduce the vulnerability of tank cars transporting
    chlorine, anhydrous ammonia, and other liquefied gases designated as
    poisonous by inhalation (R-05-16). In its response of October 24, 2006,
    the FRA stated that it believes that placing toxic inhalation hazard
    cars at the rear of a train would do little to protect them from damage
    and that slowing trains could have a negative impact on operations.
    However it would continue to examine the issue.
    Other Safety Issues
        The Safety Board also recognizes that proposed rail safety
    legislation addresses several safety provisions previously addressed in
    safety recommendations issued by the Board. These issues include
    requirements for toll-free numbers at grade crossings so that
    malfunctions of signals, crossing gates, or disabled vehicles can be
    reported; a requirement that rail, used to replace defective rail, be
    inspected by ultrasonic or other appropriate inspection to ensure that
    the replacement rail is free of internal defects; to develop and
    implement safety regulations for all classes of track for concrete
    ties; and to provide emergency escape breathing apparatus for all
    crewmembers on freight trains carrying hazardous materials that would
    pose an inhalation hazard in the event of an unintentional release.
    Rail Passenger Disaster Family Assistance
        Finally, a proposal for Rail Passenger Disaster Family Assistance
    mirrors the Aviation Disaster Family Assistance Act of 1996, which
    makes the Board responsible for coordinating assistance to families
    after major aviation accidents. The Aviation Disaster Family Assistance
    Act has been tremendously successful--the ``gold standard'' in family
    assistance. This has been because of the Board's commitment to
    assisting victims and their family members, the significant cooperation
    and support of the aviation industry, and support of all of our Federal
    partners and the non-profit community. We believe this proposed
    legislation would be beneficial to victims and their families,
    providing the needed coordination and support following a rail
    disaster.
        However, the Board has two concerns regarding this proposed
    legislation. The first is clarification of the Board's responsibilities
    to victims in accidents where the Board is not launching an
    investigative team. If we are required to provide information about the
    accident investigation we have to be in a position to have timely
    access to that information. Second, this legislation would present a
    significant demand for additional resources. This would include staff
    to assist rail carriers in their preparedness efforts and to handle the
    accident launch responsibilities. Currently the Office of
    Transportation Disaster Assistance has a staff of four. A major
    aviation accident is challenging for such a small team. With the
    addition of rail responsibilities and the possibility of a rail
    accident and aviation accident occurring simultaneously, it would be
    necessary to have additional staff to handle all of the demands.
        Mr. Chairman, that completes my statement, and I will be happy to
    respond to questions at the appropriate time.

        Senator Lautenberg. Thank you very much. I just want to say
    to the witnesses that any--a full statement that you may have,
    it will be entered--accepted into the record. And so that the
    summary that you have been kind of rushing through is very
    helpful and a--but we look forward to see--reading your full
    testimony. Thank you.
        Mr. Hyde?

             STATEMENT OF KURT W. HYDE, ASSISTANT INSPECTOR

                GENERAL, SURFACE AND MARITIME PROGRAMS,

                   U.S. DEPARTMENT OF TRANSPORTATION

        Mr. Hyde. Chairman Lautenberg, Ranking Member Smith and
    Senator Klobuchar, thank you for the opportunity to testify
    today on the reauthorization of the Federal Railroad Safety
    Program.
        This month we issued 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
    requirement for crossing collisions. Additional effort is also
    needed to address sight obstructions that block the driver's
    view of railroad tracks and 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 consider in
    your reauthorization of this safety program.
        First, compliance with reporting requirements. Railroads
    are charged with two distinct reporting requirements when a
    grade crossing collision occurs: first, an immediate call--
    within 2 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. The
    report we just issued also cited concerns with another
    requirement, noting that railroads failed to report 139
    collisions timely, with some the sum being nearly 3 years late.
    Because FRA did not routinely review 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 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's hard to steer
    clear of a train you can't see, especially at the 76,000 public
    crossings that do not have automatic warning lights or gates.
    Obstructions such as overgrown vegetation, as illustrated in my
    written statement, can significantly reduce visibility. For
    example, between 2001 and 2005, obstructions were present in
    689 collisions in which a total of 87 people died and 242 were
    injured.
        As of this past March, only 13 states had laws regulating
    all types of sight obstructions, and these vary widely. FRA
    should work with the Federal Highway Administration to develop
    model legislation for states in this area.
        Four, establishing inventory reporting requirements. FRA's
    National Grade Crossing Inventory System contains data on
    crossings and the types of warning devices installed. The
    accuracy and completeness of this inventory are essential
    because states rely on it to prioritize safety improvements.
        Voluntary reporting by railroads and states has not been
    successful: we found that 36 percent of public crossing records
    have not been updated since 2000. We believe that mandatory
    reporting should be required of railroads and states.
        And 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 action 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. And the Subcommittee
    may wish to require action in other states with high numbers of
    grade crossing collisions.
        Mr. Chairman, we will work with the 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 other members of the Subcommittee.
        [The prepared statement of Mr. Hyde follows:]

       Prepared Statement of Kurt W. Hyde, Assistant Inspector General,
        Surface and Maritime Programs, U.S. Department of Transportation
        Chairman Lautenberg, Ranking Member Smith, and members of the
    Subcommittee:

        We appreciate the opportunity to testify today on the
    reauthorization of the Federal Railroad Safety Program. We commend this
    Subcommittee for its work as you consider legislation to further
    improve railroad safety. Improvements in safety are important because
    railroads transport people and freight over 790 million train miles
    annually--by way of 173,000 miles of track--and affect the lives of
    millions of Americans. Railroads employ about 232,000 workers and
    transport about 42 percent of the Nation's freight. This industry will
    grow substantially in the future. The Department estimates that,
    between 1998 and 2020, the amount of freight transported by rail will
    increase by about 50 percent.
        As we reported in our Fiscal Year 2007 Top Management Challenges
    issued to the Department, the Federal Railroad Administration (FRA)
    must continue implementing its safety initiatives since train accidents
    are on the rise overall. As the FRA Administrator noted in a
    Congressional hearing on May 8 of this year, the rail industry's safety
    record has improved, but a significant number of train accidents
    continue to occur and the train accident rate has not shown substantive
    improvement in recent years.
        Chairman Lautenberg, our testimony today will draw from the body of
    work we conducted over the last several years on grade crossing safety.
    At the request of Senator Daniel K. Inouye, Representative James L.
    Oberstar, and Representative Corrine Brown, we conducted our most
    recent audit in response to Congressional concerns about safety on the
    Nation's nearly 240,000 grade crossings. On May 3, 2007, we issued an
    audit report that recommends steps FRA can take to better ensure
    compliance with mandatory reporting requirements and to address sight
    obstructions at grade crossings.\1\ Our work on grade crossing safety
    also includes audit reports in 2005, 2004, and 1999 and testimony at
    several Congressional hearings. Taken together, our reports and
    testimonies represent a comprehensive assessment of grade crossing
    safety issues and resulted in recommendations for further enhancements
    to rail safety. FRA has responded positively to the recommendations in
    our reports on grade crossing safety. See Attachment 1 for a list of
    our grade crossing safety reports and testimonies.
    ---------------------------------------------------------------------------
        \1\ OIG Report No. MH-2007-044, ``The Federal Railroad
    Administration Can Improve Highway-Rail Grade Crossing Safety By
    Ensuring Compliance With Accident Reporting Requirements and Addressing
    Sight Obstructions,'' May 3, 2007. OIG reports can be accessed on our
    website at www.oig.dot.gov.
    ---------------------------------------------------------------------------
        FRA has also taken several actions to improve rail safety overall.
    For example, in February 2005, we recommended that FRA submit to the
    Secretary a comprehensive plan for implementing a fully functioning
    program that makes meaningful use of analysis of available safety,
    inspection, and enforcement data.\2\ To this end, FRA instituted the
    National Inspection Plan, an inspection and allocation program that
    uses predictive indicators to assist FRA in allocating inspection and
    enforcement activities within a given region by railroad and by state.
    This is a step in the right direction, but since the plan was
    implemented only in March 2006, it is too soon to tell exactly how
    effective these measures will be in the long term.
    ---------------------------------------------------------------------------
        \2\ Memorandum to the Acting Federal Railroad Administrator,
    ``Safety-Related Findings and Recommendations,'' February 16, 2005.
    ---------------------------------------------------------------------------
        In May 2005, then Secretary Norman Mineta announced the National
    Rail Safety Action Plan. This plan outlined FRA's strategy for focusing
    oversight and inspection resources on areas of greatest concern,
    targeting the most frequent and highest risk causes of train accidents,
    and accelerating research with the best potential to mitigate such
    risks. In addition to the actions in the plan, FRA reports that its
    inspectors conduct thousands of inspections each year and engage in a
    range of educational outreach activities on railroad safety issues.
        Despite FRA's efforts and recent improvements in the safety record
    of the rail industry, serious train accidents continue to occur. The
    collision rate in recent years has not slowed markedly. Train accidents
    increased by 31 percent overall between 1995 and 2005. Further, while
    the industry's record for transporting hazardous materials has been
    good, nearly 1.7 million carloads of hazardous materials \3\ are
    transported by rail in the United States each year. The catastrophic
    consequences that can arise due to the release of hazardous materials
    from rail cars are a significant threat to safety. From 2003 through
    2006, the railroads reported 145 rail incidents that involved hazardous
    materials, resulting in 19 fatalities and 423 injuries. These incidents
    resulted in the evacuation of 17,384 people from their homes and
    businesses, caused at least $17 million in track damages, and resulted
    in about $71 million in equipment damages.
    ---------------------------------------------------------------------------
        \3\ The Department of Transportation has classified about 3,500
    materials as hazardous, ranging from mild irritants to those that are
    poisonous and radioactive.
    ---------------------------------------------------------------------------
        Grade crossing safety is central to rail safety; that is,
    enhancements to this one vulnerable area can have a tremendous,
    positive impact on overall rail safety. The second highest percentage
    of rail-related fatalities--42 percent from 1995 through 2005--is due
    to collisions at grade crossings.\4\ During this 10-year period,
    collisions and fatalities at grade crossings were significantly
    reduced, by 34 percent and 38 percent, respectively. Most recently,
    however, these numbers have increased. From 2003 to 2005, collisions
    rose by 2 percent and the number of fatalities jumped by 7 percent.
    ---------------------------------------------------------------------------
        \4\ Trespassing fatalities was the leading category of rail-related
    fatalities for that period and accounted for 52 percent. Our 1999
    report discusses the challenge of reducing trespassing fatalities.
    ---------------------------------------------------------------------------
        Today, I would like to discuss five actions that railroads and FRA
    can take to reduce grade crossing collisions and fatalities. These are
    areas on which you may wish to focus as you evaluate current
    legislative proposals.
    1. Ensuring Compliance With Mandatory Reporting Requirements
        Railroads are charged with two distinct reporting requirements when
    a grade crossing collision occurs. First, an immediate call to the
    National Response Center (NRC) \5\ is required for all serious \6\
    grade crossing collisions. (The National Transportation Safety Board
    defines ``immediate'' as within 2 hours.) This call helps FRA determine
    whether a Federal investigation is needed at the accident scene.
    Second, within 30 days of the end of the month in which collisions
    occurred, the railroad is required to report every grade crossing
    collision to FRA--not just the collisions that are deemed ``serious.''
    More can be done to ensure compliance with both of these reporting
    requirements.
    ---------------------------------------------------------------------------
        \5\ Part of the Department of Homeland Security, NRC is the Federal
    Government's 24-hour point of contact for environmental discharges. In
    addition, through agreements, NRC notifies FRA and other Federal
    agencies of train accidents and grade crossing collisions.
        \6\ FRA's criteria for immediately reporting grade crossing
    collisions to NRC--``serious'' collisions--include those with one
    fatality or five injuries, as well as other criteria.
    ---------------------------------------------------------------------------
        Between May 1, 2003 and December 31, 2004, railroads failed to
    notify NRC immediately in 115 of 543 reportable grade crossing
    collisions (21 percent) as required; most of these involved fatalities
    or multiple injuries. Although these unreported crossing collisions,
    which resulted in a total of 116 deaths, were reported to FRA within 30
    to 60 days after the collisions, that was too late to allow Federal
    authorities to promptly decide whether or not to conduct an
    investigation. In March 2005, FRA officials began issuing violations to
    railroads that failed to follow FRA's criteria for reporting grade
    crossing collisions to NRC. This enforcement effort needs to be
    sustained to ensure that railroads properly report all grade crossing
    collisions involving a fatality, serious injury, or substantial
    property damage.
        As stated in the report we issued on May 3, 2007, 12 railroads
    failed to report 139 collisions to FRA as required within 30 days after
    the end of the month in which the collision occurred--with some being
    reported nearly 3 years late. These collisions, which occurred between
    1999 and 2004, resulted in 2 fatalities and 20 injuries, as ultimately
    reported by the railroads. While these numbers may not seem large, it
    is unknown how many additional unreported collisions exist. Because FRA
    did not routinely review grade crossing collision records maintained by
    the railroads to ensure compliance with these requirements, it does not
    know whether the 15,416 grade crossing collisions reported by railroads
    between 2001 and 2005 included all collisions that occurred during
    those years.
        Accurate, timely, and complete reporting of grade crossing
    collisions serves the important purpose of identifying safety problems
    so appropriate corrective actions can be taken. Further, by ensuring
    that every grade crossing collision is reported on time, FRA and states
    will have access to critical data for identifying dangerous grade
    crossings and emerging accident trends. Complete information on grade
    crossing collisions is also essential for state transportation
    officials who must decide where to spend Federal funds set aside
    annually for crossing safety improvements. Under the Safe, Accountable,
    Flexible, and Efficient Transportation Equity Act: A Legacy for Users
    (SAFETEA-LU) for Fiscal Years 2005 through 2009, states can spend $220
    million each year for grade crossing safety improvements, such as
    automatic gates, flashing lights, and hazard elimination projects.\7\
    ---------------------------------------------------------------------------
        \7\ Hazard elimination projects include crossing closures and grade
    separations (separating railroad tracks from roadways).
    ---------------------------------------------------------------------------
        When previously unreported grade crossing collisions are reported
    to FRA, states have better information to use in making decisions. For
    example, after written reports for five unreported grade crossing
    collisions in Iowa were submitted to FRA, the Iowa Department of
    Transportation used the information provided by the railroads as the
    basis for allocating funds for safety improvements at two grade
    crossings. If those unreported collisions had not been identified, it
    is likely that safety improvements would not have been made to these
    two dangerous crossings.
        In our recent report, we recommended that FRA strengthen safety
    oversight by ensuring that the railroads comply with mandatory
    requirements to report each grade crossing collision to FRA's accident
    reporting system by:

            a. Developing and implementing an action plan for conducting
            periodic reviews of the grade crossing collision records
            maintained by each railroad, including promptly notifying the
            responsible railroads when unreported collisions are
            identified.

            b. Testing random samples of the railroads' grade crossing
            collision reports to determine whether the information is
            accurate, timely, and complete, including comparing such
            reports to those generated by local law enforcement agencies.

            c. Issuing a violation and assessing a civil penalty each time
            a railroad fails to submit a grade crossing collision report in
            accordance with Federal requirements, on a consistent basis.
            Moreover, FRA should assess higher civil penalties against each
            railroad that repeatedly fails to report crossing collisions.

        In response to our report, FRA stated that it had begun to
    implement an action plan for conducting cyclical reviews of highway-
    rail grade crossing accident reporting by the major railroads. These
    reviews are intended to determine whether grade crossing collisions are
    being properly reported. FRA also agreed to make obligatory the
    submission of violation reports for each detected violation that is a
    clear-cut failure to report.\8\ It will be important for FRA to follow
    through on its commitments, as planned. You may want to consider
    directing FRA to report annually on its cyclical reviews, including the
    number of reviews planned, the number completed, and the overall
    results of the reviews.
    ---------------------------------------------------------------------------
        \8\ A clear-cut failure to report is defined by FRA as one that
    does not involve any question with regard to interpretation of the
    regulation or sufficiency of the facts constituting the alleged
    failure.
    ---------------------------------------------------------------------------
    2. Increasing FRA's Involvement in Grade Crossing Collision
            Investigations
        With a current inspector workforce of 385, FRA has limited
    capability to investigate approximately 3,000 grade crossing collisions
    that occur each year. Instead, it places heavy reliance on railroad
    self-reporting. As we recommended in our November 2005 audit report,
    FRA needs to broaden its review of such reports with independent
    information. FRA uses accident reports received from the railroads to
    evaluate the circumstances, probable causes, and responsible parties
    for most grade crossing collisions. A variety of sources, such as
    police reports, event recorder data, and eyewitness accounts, could be
    used to provide additional insight. This should help boost public
    confidence in that accident data are being obtained from sources other
    than just the railroad(s) involved.
        FRA increased the number of grade crossing collision investigations
    during the last 2 years. However, FRA still investigates less than 1
    percent of all grade crossing collisions, a fact that highlights the
    need for independent verification of railroad-supplied information. The
    need for this increased involvement is shown by the fact that, on
    average, one person dies and three people are injured in the United
    States every day in grade crossing collisions.
        To better evaluate the causes of collisions and railroads'
    compliance with Federal safety regulations, we recommended that FRA use
    a pilot program to collect and analyze independent information on
    crossing collisions from railroads and local or state law enforcement
    agencies. FRA concurred with our 2005 recommendation and implemented a
    1-year pilot study comprising one state from each of its eight regions.
    The objective of this study was to assess the benefits and costs of
    analyzing information from independent sources on crossing collisions,
    such as police reports and locomotive event recorder data, to resolve
    conflicts. While the pilot study was scheduled for completion last
    month, FRA has yet to issue the results. FRA should report the results
    of the study as soon as possible and provide a copy of its report to
    this Subcommittee.
    3. Addressing Sight Obstructions at Grade Crossings Without Automated
            Warning Devices
        Active warning devices--such as automatic gates and flashing
    lights--call attention to approaching trains at some grade crossings.
    However, 76,000 public grade crossings are equipped only with passive
    warnings, such as crossbucks, stop signs, and pavement markings that
    advise motorists of the presence of the crossing, but don't warn them
    when a train is approaching. For these passive grade crossings, greater
    attention is needed to ensure that motorists have a full view of
    approaching trains so that they can determine when it is safe to cross.
    Sight obstructions such as overgrown vegetation contribute to grade
    crossing collisions. As illustrated in Figure 1, vegetation growth at
    grade crossings can significantly reduce a motorist's ability to see
    the track and approaching trains. From 2001 through 2005, railroads
    submitted 689 collision reports to FRA that documented such
    obstructions--242 people were injured in these collisions and 87 died.
    Figure 1. Photographs of Highway Users' Line of Sight at a Grade
            Crossing Before and After Vegetation Was Cleared

        Currently, FRA regulations only require the railroads to address
    vegetation growth at public crossings and only to the extent that the
    vegetation reduces the visibility of road signs and signals. FRA
    regulations do not address other types of sight obstructions, such as
    permanent structures, standing railroad equipment, and topography. As
    of March of this year, only 13 states had laws or regulations
    addressing all types of sight obstructions. These laws vary widely,
    with mandated sight distances ranging from 40 feet along the railroad
    property line to as much as 1,500 feet in both directions along the
    railroad right-of-way.
        For the 37 states that lack laws or regulations for addressing
    sight obstructions at grade crossings that are not protected with
    automated warning devices, more needs to be done. Immediate safety
    benefits could be achieved if laws were established to address all
    types of sight obstructions, such as structures that block highway
    users' views of approaching trains and overgrown vegetation.
        FRA agreed to play a constructive role as part of the larger
    intermodal and intergovernmental grade crossing team in response to our
    recommendation to develop model legislation. Such legislation is needed
    for states to improve safety by addressing sight obstructions at grade
    crossings that are equipped solely with signs, pavement markings, and
    other passive warnings. However, in responding to our recommendation,
    FRA also stated that it ``. . . does not have general authority or
    responsibility for grade crossing safety.'' The Subcommittee should
    consider whether it wishes to strengthen FRA's role with respect to
    grade crossing safety.
    4. Establishing Reporting Requirements for FRA's National Grade
            Crossing Inventory System
        The accuracy and completeness of FRA's national grade crossing
    inventory data, particularly the identification of all public grade
    crossings and the types of warning devices in place, can be improved
    through the establishment of mandatory reporting requirements for
    railroads and states. This action is needed to better monitor and
    improve high-risk crossings. In our June 2004 report on the Highway-
    Rail Grade Crossing Safety Program, we recommended that FRA establish
    mandatory reporting requirements through rulemaking or legislation to
    improve the accuracy and completeness of its national grade crossing
    inventory data. These data are used by state officials to develop
    priority lists of public crossings that need safety improvements
    because they have a high probability of collisions. However, mandatory
    reporting requirements have not been established. Our analysis of FRA's
    national grade crossing inventory system found that 36 percent of
    public grade crossing records have not been updated since 2000.
        Mandatory reporting is even more important under SAFETEA-LU, which
    changed the apportionment procedures. SAFETEA-LU requires that 50
    percent of the $220 million authorized be apportioned to the states for
    grade crossing safety improvements based on a ratio of the number of
    public grade crossings in a state to the number of public crossings
    nationwide. Our 2004 audit report stated that targeting safety
    strategies on state and public grade crossings that continue to have
    the most collisions is key to further reducing collisions and
    fatalities.
        Voluntary reporting of grade crossing inventory information has not
    been successful. To ensure that accurate and complete inventory data
    are available for use in making decisions about grade crossing safety
    improvements, the Subcommittee may wish to consider directing FRA and
    the Federal Highway Administration to establish and enforce mandatory
    reporting requirements for railroads and states.
    5. Requiring States With the Most Dangerous Grade Crossings To Develop
            Action Plans
        In our June 2004 report, we recommended that FRA identify states
    having the most grade crossing accidents year after year--particularly
    at crossings that have experienced multiple accidents--and develop,
    with these states, an action plan identifying specific solutions for
    improvement. Attachment 2 to our testimony today is a map of the United
    States showing the number of collisions and fatalities at grade
    crossings, by state, in 2005.
        In March 2006, FRA completed the first plan to improve dangerous
    grade crossings in Louisiana. The railroads operate in 57 of
    Louisiana's 64 parishes on 3,000 rail miles and motorists drive over
    more than 6,000 public and private crossings. As part of Louisiana's
    action plan, FRA's grade crossing data were analyzed to identify public
    crossings with multiple collisions from 1999 through 2004. The
    resulting action plan focused chiefly on crossings located near the
    intersection of two roadways. This focus was supported by data showing
    that 97 percent of the collisions at multi-collision crossings occurred
    near highway intersections. For 130 of the 177 crossings with multiple
    collisions, Louisiana transportation officials took actions to ensure
    that flashing lights, gates, or crossing closures were installed.
        FRA's efforts in Louisiana and its similar ongoing work with Texas
    are steps in the right direction. Continued action is warranted to
    identify and address the most dangerous grade crossings in the states
    with the most grade crossing collisions. Congress may want to consider
    requiring FRA to increase this level of effort by conducting similar
    projects in other states with high numbers of grade crossing
    collisions.
        Chairman Lautenberg, this concludes my statement. I would be
    pleased to respond to any questions that you or other members of the
    Subcommittee may have at this time.
    Attachment 1. Office of Inspector General Grade Crossing Safety Work
            Products
        1. OIG Testimony, CC-2007-052, ``Opportunities to Further Improve
    Railroad Safety,'' May 8, 2007.
        2. OIG Report No. MH-2007-044, ``The Federal Railroad
    Administration Can Improve Highway-Rail Grade Crossing Safety By
    Ensuring Compliance With Accident Reporting Requirements and Addressing
    Sight Obstructions,'' May 3, 2007.
        3. OIG Testimony, CC-2007-018, ``Reauthorization of the Federal
    Railroad Safety Program,'' January 30, 2007.
        4. OIG Report No. MH-2006-016, ``Audit of Oversight of Highway-Rail
    Grade Crossing Accident Reporting, Investigations, and Safety
    Regulations,'' November 28, 2005.
        5. OIG Testimony, CC-2005-060, ``Highway-Railroad Grade Crossing
    Safety Issues,'' July 21, 2005.
        6. OIG Memorandum ``Safety-Related Findings and Recommendations,''
    February 16, 2005.
        7. OIG Report No. MH-2004-065, ``Highway-Rail Grade Crossing Safety
    Program,'' June 16, 2004.
        8. OIG Report No. RT-1999-140, ``Rail-Highway Grade Crossing
    Safety,'' September 30, 1999.
        OIG reports and testimony statements can be accessed on the OIG
    website at www.oig.dot.gov.
    Attachment 2. U.S. Map of the Number of Reported Collisions and
            Fatalities at Grade Crossings, by State, in 2005

        Senator Lautenberg. Thank you very much. Ms. Siggerud, we
    welcome you.

               STATEMENT OF KATHERINE SIGGERUD, DIRECTOR,

                    PHYSICAL INFRASTRUCTURE ISSUES,

                 U.S. GOVERNMENT ACCOUNTABILITY OFFICE

        Ms. Siggerud. Chairman Lautenberg, Ranking Member Smith and
    Senator Klobuchar, thank you for inviting GAO to participate in
    this hearing today on rail safety reauthorization.
        In recent years a number of serious accidents raised
    concern about the levels of safety in the railroad industry. In
    contrast to previous decades, during the past 10 years we have
    not seen sustained progress on the rate of train accidents.
    While we found that FRA has recently undertaken or planned
    several actions that look promising I would emphasize that it
    continues to be important to make progress on railroad safety
    trends.
        My statement today is based on a report we issued in
    January that provides an overview of FRA safety programs. Our
    report covered three topics. First, how FRA focuses its efforts
    on the highest priority risks in planning its safety oversight.
    Second, how FRA identifies safety problems on railroad systems
    when carrying out oversight. And finally, how the FRA assesses
    the impact of its oversight efforts on safety.
        With regard to focusing in on the highest priority risks,
    FRA has undertaken or planned initiatives that are aimed at
    addressing the main causes of accidents. The agency's overall
    strategy for targeting its oversight is the National Oversight
    Action Plan which FRA issued in 2005. In our review this plan
    includes elements of a reasonable framework for guiding the
    agency's efforts.
        In 2006, 71 percent of all train accidents were
    attributable to either human factors or track defects and FRA
    has initiatives to address both of these causes. These include
    new regulations on human factor errors, such as improperly
    positioned switches and new fatigue models which can be used on
    railroads. But FRA cannot regulate hours-of-service and it must
    rely on voluntary actions by railroads to address fatigue. For
    track, FRA acquired two additional track inspection vehicles
    that can precisely measure track and also develop new
    regulations.
        However most of these initiatives have not yet been fully
    implemented. And their impact on safety will not be apparent
    for a number of years. Furthermore several of these efforts
    depend on voluntary actions by railroads.
        In addition FRA has also initiated a new approach for
    planning inspections that uses trend analyses of accidents,
    inspection and other data in order to focus inspectors' efforts
    on locations that are likely to have safety problems. This
    approach allows FRA to better target the greatest safety risks,
    and make more effective use of its inspectors. However, it is
    not yet clear whether the new approach will lead to
    prioritization of inspections across the Nation or ultimately
    to improve safety.
        Turning now to safety oversight, FRA identifies safety
    problems on railroads systems mainly through routine
    inspections that determine whether operating practices, track
    and equipment meet minimum safety standards. Because FRA is a
    small agency in relation to the railroad industry, FRA's
    inspections can cover only about 0.2 percent of railroads'
    operations in a year. These inspections do identify violations
    and result in railroads paying fines and taking corrective
    actions.
        However the inspections are not designed to determine how
    well railroads are managing the types of safety risks
    throughout their systems that could lead to accidents. Other
    organizations such as the American Public Transportation
    Association, PHMSA within DOT and Transport Canada have
    implemented approaches to oversee the management of safety
    risks by U.S. commuter railroads, U.S. pipelines and Canadian
    railroads, respectively. Such risk management programs require
    the industry to improve safety--systemwide safety--by
    identifying and assessing safety risks and prioritizing them so
    that their resources may be allocated to address the highest
    risks first. These oversight approaches complement rather than
    replace traditional compliance inspections and therefore
    provide additional assurance of safety.
        With regard to how FRA assesses the impact of its oversight
    efforts on safety, the agency uses a range of goals and
    measures. For example, it has developed goals to: (1) target
    its enforcement efforts at reducing various type of railroad
    accidents, and (2) measures to track its progress. However, FRA
    lacks measures of the direct results of its inspection and
    enforcement programs, such as the extent to which they have
    resulted in the correction of safety problems.
        Under FRA's current focused enforcement policy, developed
    in the mid-1990s, inspectors cite a small percentage of
    identified defects, about 3 percent in 2005, as violations that
    they recommend for enforcement action, generally through civil
    penalties. This policy relies on cooperation with railroads to
    achieve compliance. It is intended to focus FRA's efforts on
    those instances of noncompliance that pose the greatest hazard.
        However, it is not clear whether the number of civil
    penalties issued or their amounts are having the desired effect
    on improving compliance. Because it has not evaluated its
    enforcement program efforts, FRA is missing an important
    opportunity to obtain valuable information about its
    performance and on any need to adjust this policy.
        In the report we issued in January, we recommended that FRA
    first develop and implement measures of the direct result of
    its inspection and enforcement programs; and, second, evaluate
    its enforcement program. In response, DOT agreed with the first
    recommendation and noted that FRA would need to develop
    appropriate data and therefore would implement the new measures
    no earlier than the end of 2008. DOT stated that it does not
    have the resources to conduct the evaluation we recommended and
    said it would consider requesting resources for Fiscal Year
    2009 for that purpose.
        Mr. Chairman, this completes my statement. I'm happy to
    answer any questions.
        [The prepared statement of Ms. Siggerud follows:]

         Prepared Statement of Katherine Siggerud, Director, Physical
          Infrastructure Issues, U.S. Government Accountability Office
        Mr. Chairman and Members of the Subcommittee:
        We appreciate the opportunity to participate in this hearing today
    to discuss the Federal Railroad Administration's (FRA's) rail safety
    oversight activities. Although the overall safety record in the
    railroad industry, as measured by the number of train accidents per
    million miles traveled, has improved markedly since 1980, there has
    been little sustained improvement over the past decade. (See fig. 1.)
    Serious accidents resulting in injuries, deaths, and property damage
    continue to occur.

        My remarks center on work we have recently completed on FRA's
    overall safety oversight strategy. Specifically, we examined how FRA
    (1) focuses its efforts on the highest priority risks related to train
    accidents in planning its safety oversight, (2) identifies safety
    problems on railroad systems in carrying out its oversight, and (3)
    assesses the impact of its oversight efforts on safety. Our findings
    are discussed in more detail in our report, which was released in
    January.\1\
        Our work was based on a review of laws, regulations, and FRA plans
    and guidance as well as discussions with FRA officials and with a range
    of external stakeholders, including railroads, unions, and state
    railroad safety organizations. We reviewed FRA inspection and
    enforcement data for 1996 through 2005, the latest year for which
    complete data were available at the time of our review.\2\ In addition,
    we examined risk management principles and safety oversight approaches
    used by other modal administrations within the Department of
    Transportation and other organizations that have similar safety
    missions in order to determine their possible application to FRA. Our
    work focused on FRA oversight efforts to reduce the rate of train
    accidents rather than those to reduce highway-rail crossing and
    trespassing accidents because (1) the Department of Transportation's
    Inspector General has recently assessed efforts to reduce highway-rail
    crossing accidents \3\ and (2) trespassing accidents primarily involve
    issues not related to railroad safety performance. As part of our
    review, we assessed internal controls and the reliability of the data
    elements needed for this engagement and determined that the data
    elements were sufficiently reliable for our purposes. We conducted our
    work from November 2005 through January 2007 in accordance with
    generally accepted government auditing standards.
        In summary:

       In planning its safety oversight, FRA is focusing its
            efforts on the highest priority risks related to train
            accidents through various initiatives aimed at addressing the
            main causes of these accidents as well as through improvements
            in its inspection planning approach. The agency's overall
            strategy for targeting its oversight at the greatest risks is
            the National Rail Safety Action Plan, which FRA issued in May
            2005. This plan provides a reasonable framework for guiding the
            agency's efforts to improve its oversight. It includes
            initiatives to address the two main causes of train accidents--
            human factors and defective track--and FRA has pursued some
            additional initiatives to address these causes since issuing
            the plan.\4\ These initiatives--which include new regulations,
            research on new technologies and approaches for improving
            safety, and new vehicles for inspecting track--are promising.
            However, most of them have not yet been fully implemented, and
            their overall impact on safety will probably not be apparent
            for a number of years. Furthermore, the ability of many of
            these efforts to improve safety will depend on voluntary
            actions by railroads. In addition, the Action Plan announced a
            new approach for planning inspections that uses data-driven
            models to focus inspectors' efforts on locations that are
            likely to have safety problems.

       In carrying out its safety oversight, FRA identifies safety
            problems on railroad systems mainly through routine inspections
            that determine whether operating practices, track, and
            equipment, such as signals and locomotives, are in compliance
            with minimum safety standards. However, FRA inspections cover
            only about 0.2 percent of railroads' operations each year.
            Also, these inspections are not designed to determine how well
            railroads are managing safety risks throughout their systems
            that could lead to accidents. The American Public
            Transportation Association (APTA), the Pipeline and Hazardous
            Materials Safety Administration (PHMSA), and Transport Canada
            have implemented approaches to oversee the management of safety
            risks by U.S. commuter railroads, U.S. pipelines, and Canadian
            railroads, respectively.\5\ These oversight approaches
            complement, rather than replace, traditional compliance
            inspections and, therefore, provide additional assurance of
            safety.

       FRA uses a broad range of goals and measures to assess the
            impact of its oversight efforts on safety. For example, it has
            developed new goals to target its inspection and enforcement
            efforts at reducing various types of railroad accidents and
            related measures to track its progress. However, FRA lacks
            measures of the direct results of its inspection and
            enforcement programs, such as measures of the extent to which
            these programs have resulted in the correction of identified
            safety problems. Furthermore, FRA has not evaluated the
            effectiveness of its enforcement program in achieving desired
            results. Both performance measures and evaluations can provide
            valuable information on program results that helps hold
            agencies accountable for the performance of their programs. In
            our recent report, we recommended that FRA develop and
            implement measures of the direct results of its inspection and
            enforcement programs and evaluate its enforcement program. FRA
            agreed to develop such measures and will consider requesting
            the additional resources necessary to evaluate its enforcement
            program.
    Background
        On average, 437 people have been injured and 12 people have been
    killed in train accidents each year over the past decade, from 1997
    through 2006, exclusive of highway-railroad grade crossing and
    trespassing accidents. In recent years, a number of serious accidents
    raised concerns about the level of safety in the railroad industry. For
    example, as you are aware, in 2005, a train collision in Graniteville,
    South Carolina, resulted in the evacuation of 5,400 people, 292
    injuries, and 9 deaths.
        FRA develops and enforces regulations for the railroad industry
    that include numerous requirements related to safety, including
    requirements governing track, signal and train control systems, grade
    crossing warning device systems, mechanical equipment--such as
    locomotives and tank cars--and railroad operating practices. FRA also
    enforces hazardous materials regulations issued by PHMSA as they relate
    to the safe transportation of such materials by rail. FRA's inspectors
    generally specialize in one of five areas, called inspection
    disciplines: (1) operating practices, (2) track, (3) hazardous
    materials, (4) signal and train control, and (5) motive power and
    equipment. FRA's policy is for inspectors to encourage railroads to
    comply voluntarily. When railroads do not comply voluntarily or
    identified problems are serious, FRA may cite violations and take
    enforcement actions, most frequently civil penalties, to promote
    compliance with its regulations. FRA is authorized to negotiate civil
    penalties with railroads and exercises this authority. FRA conducts
    additional oversight of Class I railroads through the Railroad System
    Oversight program.\6\ Under this program, the agency assigns an FRA
    manager for each Class I railroad to cooperate with it on identifying
    and resolving safety issues.
        FRA is a small agency, especially in relation to the industry it
    regulates. As of July 2006, FRA had about 660 safety staff, including
    about 400 inspectors in the field (in its regional, district, and local
    offices). In addition, 30 state oversight agencies, with about 160
    inspectors, participate in a partnership program with FRA to conduct
    safety oversight activities at railroads' operating sites. In contrast,
    the railroad industry consists of about 700 railroads with about
    235,000 employees,\7\ 219,000 miles of track in operation, 158,000
    signals and switches, and over 1.6 million locomotives and cars.
    FRA Has Made Progress in Targeting Its Oversight Efforts on the Basis
            of Risk
        In planning its safety oversight, FRA focuses its efforts on the
    highest priority risks related to train accidents through a number of
    initiatives. FRA's May 2005 National Rail Safety Action Plan provides a
    reasonable framework for the agency's efforts to target its oversight
    at the highest priority risks. The plan outlines initiatives aimed at
    reducing the main types of train accidents, those caused by human
    factors and track defects. Since issuing the plan, the agency has
    pursued additional initiatives to target risks posed by these causes.
    However, these efforts are in varying stages of development or
    implementation and, while some individual initiatives may start showing
    results in the next year or two, their overall impact on safety will
    probably not be apparent for a number of years. FRA has also developed
    a new approach for planning its inspections, based on greater use of
    its accident and inspection data. While these initiatives are
    promising, it is too early to assess their impact.
    FRA Is Making a Number of Efforts To Reduce Accidents Caused by Human
            Factors and Track Defects, but Results Are Not Yet Clear
        In 2006, 71 percent of all train accidents in the United States
    were attributable to either human factors or track defects. Human
    factor accidents result from unsafe acts of individuals, such as
    employee errors, and can occur for a number of reasons, such as
    employee fatigue or inadequate supervision or training. Recent FRA
    initiatives to reduce accidents caused by human factors include:

       proposed regulations aimed at reducing the most common
            causes of these accidents, such as improper positioning of
            track switches; \8\

       a 5-year pilot project to establish a confidential voluntary
            system for reporting and learning from close call incidents;
            \9\

       a study to develop a fatigue model that could be used by
            railroads to improve train crew scheduling practices and
            prevent worker fatigue; \10\ and;

       a proposed pilot project to establish voluntary risk
            reduction programs at participating railroad worksites to help
            reduce human factor accidents, as well as other types of
            accidents.\11\

        Track defects, which can cause derailments, include rails that are
    uneven or too wide apart or rails or joint bars that are cracked or
    broken. Key recent FRA initiatives to reduce accidents caused by track
    defects include:

       two additional track inspection vehicles that can precisely
            measure track during inspections \12\ and;

       new regulations on inspections of rail joints in continuous
            welded rail track.\13\

        These initiatives are in varying stages of development or
    implementation and use a variety of approaches, some quite innovative,
    for addressing the causes of human factor and track accidents. While
    they have the potential to eventually reduce these types of accidents,
    it is too early to predict their outcomes. The human factor
    initiatives, except for the proposed regulations, depend on voluntary
    actions by railroads, and, in some cases, labor as well, for their
    success.
    FRA Has Made Progress in Targeting Its Inspections on the Basis of Risk
        FRA has developed a new approach--the National Inspection Plan--for
    using available data to target its inspections at the greatest safety
    risks. The plan provides guidance to each regional office on how its
    inspectors within each of the five inspection disciplines should divide
    up their work by railroad and state. It is based on trend analyses of
    accident, inspection, and other data that predict locations where train
    accidents and incidents are likely to occur within each region and
    provide the optimal allocation of inspection resources to prevent
    accidents.
        Previously, FRA had a less structured, less consistent, and less
    data-driven approach for planning inspections. According to agency
    officials, each region prepared its own inspection plan, based on
    judgments about appropriate priorities and analysis of available data.
    However, the use of data was not consistent from region to region.
    Inspectors had greater discretion about where to inspect and based
    decisions about priorities on their knowledge of their inspection
    territories.
        FRA's new approach for planning its inspection activity allows it
    to better target the greatest safety risks and make more effective use
    of its inspectors. However, it is not yet clear whether the new
    approach will lead to a prioritization of inspection levels across
    regions and inspection disciplines or improved safety.
    FRA Relies Primarily on Direct Inspections To Identify Safety Problems
            and Does Not Oversee Railroads' Management of Safety Risks
        In carrying out its safety oversight, FRA identifies a range of
    safety problems on railroad systems mainly through routine inspections
    to determine whether operations, track, and equipment are in compliance
    with safety standards. FRA's inspections do not attempt to determine
    how well railroads are managing safety risks throughout their systems.
    APTA, PHMSA, and Transport Canada have implemented approaches to
    oversee the management of safety risks by U.S. commuter railroads, U.S.
    pipelines, and Canadian railroads, respectively. These oversight
    approaches complement, rather than replace, traditional compliance
    inspections and therefore provide additional assurance of safety.
    FRA's Oversight Identifies a Range of Problems on Railroad Systems
        FRA primarily monitors railroads' compliance through routine
    inspections by individual inspectors at specific sites on railroads'
    systems. Inspectors typically cover a range of standards within their
    discipline during these inspections. This inspection approach focuses
    on direct observations of specific components of the train, related
    equipment, and railroad property--including the track and signal
    systems--as well as operating practices to determine whether they meet
    FRA's standards. (See fig. 2.) Inspectors also examine railroads'
    inspection and maintenance records. The railroads have their own
    inspectors who are responsible for ensuring that railroad equipment,
    track, and operations meet Federal rail safety standards.

        FRA also conducts more in-depth inspection efforts that generally
    focus on railroads' compliance in a particular area, such as their
    inspections of employees' adherence to operating rules. These efforts
    often involve a team conducting separate inspections at multiple sites,
    generally within one of FRA's eight regions. FRA also periodically
    conducts in-depth inspections of some systemwide programs that
    railroads are required to implement, such as employee drug and alcohol
    testing programs.
        In 2005, Federal and state inspectors conducted about 63,000
    inspections. According to FRA, routine inspections constituted about 75
    percent of the inspections of railroads, and in-depth inspections
    accounted for about 11 percent. The remainder of these inspections (14
    percent) consisted of other types of activities, such as investigations
    of accidents and complaints. This approach to oversight enables FRA
    inspectors and managers to identify a wide range of safety problems.
    Inspectors identify specific compliance problems--conditions that do
    not meet FRA's standards--at sites they visit, by citing defects.
    Inspectors cite violations of safety standards for those defects that
    they believe warrant enforcement action. They consider a number of
    factors in making this decision, including the railroad's history of
    compliance at that location and the seriousness of the noncompliance
    (such as whether it is likely to cause accidents, injuries, or releases
    of hazardous materials). Inspectors in some disciplines cite more
    defects and violations than others. (See fig. 3.)

        The motive power and equipment discipline cites almost half of all
    defects and over a third of all violations. FRA officials told us that
    the standards in this inspection discipline are the most prescriptive,
    making defects and violations easier to find. However, these types of
    defects cause a much smaller proportion of accidents than human factors
    and track defects.\14\ The most frequently cited violations include
    those for noncompliance with standards for locomotives and freight
    cars, track conditions, recordkeeping on the inspection and repair of
    equipment and track, and the condition of hazardous materials tank
    cars.
    Several Other Organizations Have Implemented Comprehensive Approaches
            for Overseeing the Management of Safety Risks in Transportation
            Industries
        FRA officials have noted that their approach of directly inspecting
    safety conditions and targeting locations that are most likely to have
    compliance problems provides a safety net and holds railroad management
    accountable. However, because the number of FRA and state inspectors is
    small relative to the size of railroad operations, FRA inspections can
    cover only a very small proportion of railroad operations (0.2
    percent). Also, FRA targets inspections at locations on railroads'
    systems where accidents have occurred, among other factors, rather than
    overseeing whether railroads systematically identify and address safety
    risks that could lead to accidents.
        Risk management can help to improve systemwide safety by
    systematically identifying and assessing risks associated with various
    safety hazards and prioritizing them so that resources may be allocated
    to address the highest risks first. It also can help in ensuring that
    the most appropriate alternatives to prevent or mitigate the effects of
    hazards are designed and implemented. A framework for risk management
    based on industry best practices and other criteria that we have
    developed divides risk management into five major phases: (1) setting
    strategic goals and objectives, and determining constraints; (2)
    assessing risks; (3) evaluating alternatives for addressing these
    risks; (4) selecting the appropriate alternatives; and (5) implementing
    the alternatives and monitoring the progress made and results achieved.
        Other transportation oversight organizations have developed and
    implemented approaches for overseeing industries' overall management of
    safety risks. In particular, during the last 10 years, APTA, PHMSA, and
    Transport Canada have developed and implemented such oversight
    approaches for U.S. commuter railroads, U.S. pipelines, and Canadian
    railroads, respectively. These approaches complement, rather than
    replace, traditional compliance inspections. APTA provides guidelines
    to commuter railroads on managing the safety of their systems--
    including safety risks--and audits their plans for and implementation
    of this management approach.\15\ PHMSA requires that pipeline operators
    develop ``integrity management'' programs to manage risk in areas--such
    as those that are densely populated--where leaks or ruptures could have
    the greatest impact on public safety and inspects operators' compliance
    with these requirements.\16\ In Canada, the department responsible for
    overseeing railroad safety, Transport Canada, requires that railroads
    establish safety management systems that include risk management and
    assesses these systems.\17\ APTA, PHMSA, and Transport Canada have
    emphasized that risk management provides a higher standard of
    performance than traditional safety regulation based on compliance
    alone.
        We have reviewed PHMSA's gas transmission pipeline integrity
    management oversight approach and have recently concluded that it
    enhances public safety.\18\ Operators told us that the primary benefit
    of the program is the comprehensive knowledge they acquire about the
    condition of their pipelines. APTA and Transport Canada officials have
    told us that their oversight approaches have not been formally
    evaluated to determine their effectiveness.
        FRA has taken some steps in a limited number of areas to oversee
    and encourage risk management in the railroad industry. For example,
    the agency has several regulations in place that require railroads to
    use a risk-based approach for managing safety in some specific areas,
    such as the operation of high-speed passenger trains. In addition, as
    noted earlier, FRA has proposed establishing pilot risk reduction
    programs at participating worksites. Agency officials have told us that
    this pilot effort will allow the agency to examine how a risk
    management approach could be used voluntarily in the railroad industry
    to reduce human factor and other types of accidents.
        Oversight of railroads' overall approach for managing safety risks
    on their systems, in addition to FRA's existing discipline-specific,
    compliance-based oversight, has the potential to provide additional
    assurance of safety. However, developing and implementing such a new
    oversight approach would be a major undertaking for the agency, and
    FRA's current initiatives to reduce train accidents need time to mature
    to demonstrate their effects. As a result, we did not recommend in our
    recent report that FRA adopt an approach for overseeing railroads'
    management of safety risks.
    FRA Measures Its Progress in Achieving a Variety of Safety Goals, but
            Has Limited Information on the Direct Results of Its Oversight
        FRA has a broad range of goals and measures that it uses to provide
    direction to and track the performance of its safety oversight
    activities. However, its ability to make informed decisions about its
    inspection and enforcement programs is limited because it lacks
    measures of the intermediate outcomes, or direct results, of these
    programs that would show how they are contributing toward the end
    outcomes, or ultimate safety improvements, that the agency seeks to
    achieve. Furthermore, FRA has not evaluated the effectiveness of its
    enforcement approach. Both performance measures and evaluations can
    provide valuable information on program results that helps hold
    agencies accountable for their programs' performance.
    FRA Has Established a Range of Safety Goals and Measures, But
            Information on
            Direct Results Is Limited
        To its credit, FRA has adopted a range of useful safety performance
    goals and related measures. These goals help the agency target its
    oversight efforts to achieve the department's goals of reducing (1) the
    rate of rail-related accidents and incidents and (2) the number of
    serious hazardous materials releases. For example, FRA has recently
    established new agencywide safety goals that are aligned with its five
    inspection disciplines and its grade-crossing efforts. These include
    goals to reduce the rates of various types of train accidents--
    including those caused by human factors, track defects, and equipment
    failure--as well as hazardous materials releases and grade-crossing
    incidents. These departmental and agency goals represent the key end
    outcomes, or ultimate results, FRA seeks to achieve through its
    oversight efforts. FRA has also established related measures that help
    the agency determine and demonstrate its progress in meeting the
    desired goals. In addition, it has established similar goals and
    measures for each of its eight regional offices. FRA also uses various
    other measures to manage its oversight efforts, such as numbers of
    inspections performed and enforcement actions taken.
        While FRA has developed a range of goals and measures related to
    its oversight of railroad safety, it lacks measures of the desired
    intermediate outcomes, or direct results, of its inspection and
    enforcement efforts--the correction of identified safety problems and
    improvements in compliance. (See fig. 4.) According to FRA officials,
    inspectors review reports on corrective actions provided by railroads
    and always follow up on serious identified problems to ensure that they
    are corrected. However, the agency does not measure the extent to which
    the identified safety problems have been corrected. FRA also lacks
    overall measures of railroads' compliance. Officials have emphasized
    that the agency relies on inspectors' day-to-day oversight of and
    interaction with railroads to track compliance.\19\

        Without measures of intermediate outcomes, the extent to which
    FRA's inspection and enforcement programs are achieving direct results
    and contributing to desired end outcomes is not clear. We recognize
    that developing such measures would be difficult and that it is
    challenging for regulatory agencies to develop such measures.
    Nevertheless, some other regulatory agencies in the Department of
    Transportation have done so. For example, the Federal Motor Carrier
    Safety Administration measures the percentage of truck companies that
    improve their performance in a follow-up inspection.
    FRA Has Made Changes in Response to Evaluations but Has Not Evaluated
            Its
            Enforcement Approach
        By examining a broader range of information than is feasible to
    monitor on an ongoing basis through performance measures, evaluation
    studies can explore the benefits of a program as well as ways to
    improve program performance. They can also be used to develop or
    improve agencies' measures of program performance and help ensure
    agencies' accountability for program results. Although FRA has modified
    several aspects of its safety oversight in response to external and
    internal evaluations, it has not evaluated the extent to which its
    enforcement is achieving desired results.
        Under FRA's current ``focused enforcement'' policy, developed in
    the mid-1990s, inspectors cite a small percentage of identified defects
    (about 3 percent in 2005) as violations that they recommend for
    enforcement action, generally civil penalties. While this policy relies
    to a great extent on cooperation with railroads to achieve compliance
    and is intended to focus FRA's enforcement efforts on those instances
    of noncompliance that pose the greatest safety hazards, it is not clear
    whether the number of civil penalties issued, or their amounts, are
    having the desired effect of improving compliance. Without an
    evaluation of its enforcement program, FRA is missing an opportunity to
    obtain valuable information on the performance of this program and on
    any need for adjustments to improve this performance.
        In the report we issued in January, we recommended that FRA (1)
    develop and implement measures of the direct results of its inspection
    and enforcement programs and (2) evaluate the agency's enforcement
    program to provide further information on its results, the need for
    additional data to measure and assess these results, and the need for
    any changes in this program to improve performance. In its response,
    the department concurred with the first recommendation but said that,
    because FRA needs to develop appropriate data, the agency would not be
    able to implement new measures before the end of 2008. The department
    stated that FRA lacks the resources to carry out our second
    recommendation but will consider requesting such resources for Fiscal
    Year 2009. As part of our normal recommendation follow-up activity, we
    will work toward FRA's adoption of our recommendations.
        Mr. Chairman, this concludes my prepared statement. I would be
    pleased to respond to any questions that you or other Members of the
    Subcommittee might have.
    Endnotes
        \1\ See GAO, The Federal Railroad Administration Is Taking Steps to
    Better Target Its Oversight, but Assessment of Results Is Needed to
    Determine Impact, GAO-07-149 (Washington, D.C.: Jan. 26, 2007).
        \2\ In preparing for this hearing, we did not attempt to obtain
    2006 inspection and enforcement data because we lacked the time to
    determine the reliability of and analyze these data.
        \3\ See U.S. Department of Transportation, Office of the Inspector
    General, The Federal Railroad Administration Can Improve Highway-Rail
    Grade Crossing Safety by Ensuring Compliance with Accident Reporting
    Requirements and Addressing Sight Obstructions, MH-2007-044
    (Washington, D.C.: May 3, 2007); Audit of Oversight of Highway-Rail
    Grade Crossing Accident Reporting, Investigations and Safety
    Regulations, MH-2006-016 (Washington, D.C.: Nov. 28, 2005); and Report
    on the Audit of the Highway-Rail Grade Crossing Safety Program, MH-
    2004-065 (Washington, D.C.: June 16, 2004).
        \4\ Generally, human factors are behaviors that affect job
    performance, such as incorrectly setting switches.
        \5\ Risk management can be described as a systematic approach for
    identifying, analyzing, and controlling risks.
        \6\ For 2006, the Surface Transportation Board defined Class I
    railroads as railroads earning adjusted annual operating revenues of
    $319.3 million or more.
        \7\ This number does not include contractor employees hired by the
    railroads.
        \8\ FRA issued this proposed regulation in October 2006 and plans
    to issue a final regulation by the end of 2007.
        \9\ According to FRA, a close call represents a situation in which
    an ongoing sequence of events was stopped from developing further,
    preventing the occurrence of potentially serious safety-related
    consequences.
        \10\ Railroad employees often work long hours and have
    unpredictable and fluctuating work schedules. FRA and the National
    Transportation Safety Board have identified employee fatigue as a
    significant factor in many train accidents. FRA does not have the
    authority to regulate railroad worker duty hours. However, the
    department recently proposed legislation to Congress to reauthorize FRA
    (S. 918 and H.R. 1516) that would give the agency authority to do so.
        \11\ These programs will include efforts by railroads to prevent
    accidents through collecting and analyzing data on accident
    precursors--such as close call incidents, employee errors, or
    organizational characteristics--to better identify and correct
    individual and organizational characteristics that contribute to
    accidents. FRA plans to initiate this pilot project in Fiscal Year
    2008, contingent upon funding. The department's proposed legislation
    refers to this initiative as the Safety Risk Reduction Program.
        \12\ According to FRA, these additional vehicles allow the agency
    to triple the miles of track that it is able to inspect per year, to
    nearly 100,000 miles. FRA also inspects track conditions through manual
    inspections conducted on foot or in on-track equipment.
        \13\ In continuous welded rail track, rails are welded together to
    form one continuous rail that may be several miles long. There may be
    joints in this rail for several reasons, including the need to replace
    a section of defective rail.
        \14\ FRA officials have explained that operating practices
    inspectors have had a limited ability to cite defects and violations
    because of the way regulations in this area are written. For example,
    as noted previously, the regulations contain general requirements about
    railroads' programs for inspecting employees' adherence to operating
    rules and do not specifically require that employees follow these
    rules. The agency expects that its proposed regulations on operating
    rules will improve its ability to enforce in this area, because the
    requirements will be more stringent than existing regulations.
        \15\ APTA is a nonprofit organization representing the transit
    industry, including U.S. commuter rail systems.
        \16\ PHMSA administers the national regulatory program to ensure
    the safe transportation of hazardous liquids and natural gas by
    pipeline.
        \17\ Transport Canada oversees the safety and security of Canada's
    rail, marine, highway, and aviation operations.
        \18\ GAO, Natural Gas Pipeline Safety: Integrity Management
    Benefits Public Safety, but Consistency of Performance Measures Should
    Be Improved, GAO-06-946 (Washington, D.C.: Sept. 8, 2006).
        \19\ FRA headquarters and regional officials also analyze defect
    data in each inspection discipline to identify emerging issues and plan
    inspection activity.

        Senator Lautenberg. Thank you, Ms. Siggerud. The one thing
    that threads through the statements is certainly the focus on
    the lack of appropriate response to incidents or accidents of
    note. And that a quicker response to these things would be of
    great value in helping solve the problems.
        Ms. Strang, the labor organizations and the railroads have
    worked for years to find ways to address employee fatigue. The
    elimination of limbo time, undisturbed rest, and have not yet
    reached any agreement. But the Administration wants us to give
    it the authority to set hours-of-service rules. Now, by giving
    the experience that we've seen in the trucking industry on
    hours-of-service, the courts struck down the Administration's
    standards. Why should we turn this responsibility back to them
    as is suggested by the Administration?
        Ms. Strang. Thank you. We believe that by taking the
    provisions into the Rail Safety Advisory Committee that we will
    avoid some of the problems that were encountered by FMCSA. This
    Committee is a group made up of both railroad management and
    labor that, through consensus, tries to develop regulations. If
    within a reasonable period of time the regulations could not be
    derived through a consensus process, FRA would revert to its
    normal, traditional rulemaking authority and try to issue
    regulations.
        Senator Lautenberg. Has there not been enough time for the
    FRA to request the enlargement of the inspector force, other
    resources that are needed? It's pitifully small, as I said
    before, compared to the growth of the railroad industry. We're
    pleased to see the success of the industry, but that should not
    permit the railroad industry to go ahead and ignore what are
    some very obvious safety changes that must be made.
        Mr. Sumwalt, given the trucking hours-of-service
    experience, shouldn't there be some limitations on the
    authority given to the Administration to prevent them from
    weakening the hours-of-service rules?
        Mr. Sumwalt. Well, we, at the Safety Board, do believe that
    the FRA should be given the regulatory authority to enact
    hours-of-service rules. And we feel that the research has been
    done. It's about ready to go to rulemaking. And as
    Administrator Strang pointed out; there could be a shock
    absorber in there that if this process goes on too long, then
    the FRA could come in and impose the regulations.
        Senator Lautenberg. The railroads received an estimated six
    and a half billion dollars last year, net profit, indicating a
    pretty healthy industry. If not financial constraints, what's
    stopping the railroads from implementing PTC systems
    nationwide? Anybody want to respond to that?
        Ms. Strang. I don't mind.
        Senator Lautenberg. Please.
        Ms. Strang. I think that's a good question. And it has
    taken a lot longer than anybody anticipated. However we're on
    the verge of making progress, or at least that is what we feel.
    Because we issued the revisions to Part 236 of Part H that
    permits different types of train control systems such as the
    communications-based train control systems.
        We just recently approved the very first project safety
    plan for the BNSF in January 2007. We know that Union Pacific,
    Norfolk Southern and CSX are working toward it. Is it slow?
    Yes. But are we making progress? We think so.
        Senator Lautenberg. If progress is needed then I don't take
    a lot of comfort, honestly, out of saying that things are being
    done when it's obvious that more needs to be done. And we have
    the technology to do it. We have the workforce ready to do it.
    We ought to be making those changes that make the system safer,
    especially when you look at the growth in the transport of
    hazardous materials. We have things to worry about.
        We just heard from Senator Clinton. I think she listed five
    accidents in the State of New York alone. And we all see it
    happening. So I would urge an acceleration of the pace.
        The NTSB has said that the Home Valley, Washington accident
    was caused by the failure of the railroad to respond to reports
    of rough rides which is a sign of defective track conditions.
    Are the railroads allowing their own track inspectors enough
    time to perform inspection duties? Is this a problem in the
    Northeast Corridor, which I use and get some bumpy rides on?
    The fact is that if we have to sacrifice safety that no matter
    what advances we make in the pace and the ease of the carriage,
    it doesn't matter. So what is the problem? Do we know in the
    Northeast Corridor?
        Ms. Strang. I'm sorry. I didn't realize that you were
    addressing me.
        Senator Lautenberg. Well, it's addressing to the panel.
    Whomever feels that they have enough knowledge to respond to
    that. Mr. Sumwalt, do you?
        Mr. Sumwalt. Well, Mr. Chairman, as you indicated you're
    exactly right. In the Home Valley, Washington accident we did
    note that the railroad did not have sufficient time to conduct
    those inspections. And these inspections are vital to ensuring
    the safety of our nation's railways.
        So, we do need to ensure that the inspectors do have the
    adequate time to do their jobs. We have issued a recommendation
    to that particular railroad concerning the need for additional
    time to make sure their inspectors have adequate time. And we
    will continue to look at that issue as it relates to the
    railroad system across the country.
        Senator Lautenberg. How about in the Northeast Corridor?
    Are we aware of the fact that there are track difficulties,
    track concerns with the volume of travel that takes place for
    well--not travel, cargo, passenger, et cetera?
        Ms. Strang. You're right. It's a growing problem where with
    an increase just in the amount of trains you find reduced time,
    for instance, for inspections. In the Northeast Corridor,
    Amtrak inspects at night when they have fewer trains.
        And they've been using--they've been trying to get higher
    technology equipment available to help them in their
    inspections. So, we're fairly confident. They have a very good
    track record in the Northeast Corridor for track related
    problems.
        Senator Lautenberg. Thank you very much. Senator Smith?
        Senator Smith. Thank you, Mr. Chairman. Ms. Strang, the GAO
    says that the FRA is inspecting .2 percent of the trackage. Is
    that an adequate rate of inspection? And if not, do you have a
    target?
        Ms. Strang. We try to target our inspections where they
    will have the most meaning. So we look at the relative risk of
    where we have problems. What the past records have been and
    then allocate our inspection forces in that manner.
        Senator Smith. So, you don't necessarily have a target as
    to a percentage of tracks?
        Ms. Strang. We have--our targets are based on reductions of
    derailments. So our--if you look at what our GPRA goals are,
    they're all based towards reducing the number of derailments.
    And that is how we target our efforts.
        Senator Smith. Mr. Sumwalt, you state that the Safety Board
    has issued 34 recommendations regarding railroad employee
    fatigue. Eight of those 34 went to the Federal Railroad
    Administration. The remaining recommendations went to rail
    carriers and operating unions. Are they doing anything with
    those? Are unions and carriers doing anything with those
    recommendations?
        Mr. Sumwalt. Senator, I can give you a break down of that
    for the record. I was mainly focusing on the FRA and their
    response which is, they're exactly right. They don't have the
    authority to amend the Federal Hours of Service Act. So, that's
    where most of my focus has been on trying to----
        Senator Smith. I'd like to see those because, you know, I
    think it takes both the operators and the unions to work
    together to the same end as well.
        I have a question to the whole panel. How much of an impact
    do you anticipate that technology will have on improving rail
    safety? It seems to me there are some initiatives out there
    that have some real promise.
        Ms. Strang. I think that the potential for technology
    improvement is huge. Some things that we have ongoing are new
    inspection techniques for internal rail defects which current
    technology allows you to only look at a portion of the rail.
    Within the next three to 5 years we'll have a phaser ray
    technology that will allow inspection for internal rail defects
    of the head, the base and the web of the rail.
        This is very important because broken rails are commonly
    caused by internal rail defects that subsequently grow because
    of the heavy axle loads. So if we can find all the defects and
    learn more about how defects grow, we'll be able to greatly
    improve track safety. As far as switch positions go, we have
    partnered with Burlington Northern Santa Fe on a low cost
    switch position indicating system which they installed in 49
    switches between Tulsa, Oklahoma and Avard, Oklahoma.
        So those types of technologies, we believe have a lot of
    promise. There's also promise in the fact that as PTC gets
    rolled out the cost should come down. And that will make it
    more affordable and then more deployable.
        Senator Smith. Mr. Sumwalt, can you compare for me other
    modes of transportation regulated by Federal Government in
    terms of hours-of-service laws? How do they compare? How do
    trucks compare to rail?
        Mr. Sumwalt. OK. Thank you. Yes, sir. As stated earlier the
    rail industry--the employers--the train crew members are
    legally able to go up to a maximum of 432 hours per month. We
    compare that to the aviation business for the FAR Part 121
    carriers, the scheduled air carriers where the pilots can
    operate 100 hours a month maximum.
        For the Part 135, which would predominately be the charter
    operators they can operate 120 hours per month. Highway FMCSA
    requires that truck drivers limit their duty time to 350 hours
    per month, marine, ocean going, 360 hours per month. So I think
    that these figures indicate that the rail industry is far
    greater in their allowance for their crew members to operate.
        Senator Smith. And are there far greater numbers of
    accidents as you try to compare the tonnage of stuff moved or
    do you have any data like that?
        Mr. Sumwalt. I don't have that data with me, Senator. But
    we can get that. We'd be glad to supply that for the record.
        Senator Smith. OK, thank you.
        Senator Lautenberg. Senator Klobuchar?
        Senator Klobuchar. Thank you, Mr. Chairman. Mr. Hyde, you
    talked about action plans for tough intersections.
        Mr. Hyde. Right.
        Senator Klobuchar. That was interesting to me because I
    think we've had some issues with that. Are there any studies
    that have been done where action plans you mentioned state
    where they've been put in place where you could show there's
    been some results from that?
        Mr. Hyde. Yes, thank you. FRA worked with the State of
    Louisiana to put together a state-specific action plan starting
    in 2005. Louisiana completed the plan after conducting quite a
    bit of analysis on their more problematic grade crossings--
    those with multiple collisions.
        The data hasn't come in yet as to whether the plan has
    significantly helped, but certainly by closing some of the more
    troublesome grade crossings, which they've done, will help.
    They're looking at closing a few more. Those are good steps.
    They also improved several crossings with passive warning
    devices by installing active warning devices.
        Now FRA is working with Texas to put together a similar
    action plan. And we do think that other states that,
    particularly that have a high number of grade crossing
    collisions and fatalities should certainly be putting together
    state-specific action plans.
        Senator Klobuchar. Thank you. Mr. Sumwalt, you talked about
    the idea of comprehensive regulations for sleep accidents and
    fatigue accidents compared to what's in the bill or in the law
    currently. Could you give me more information about what you
    meant by that?
        Mr. Sumwalt. Yes, ma'am. There's a lot more to fatigue than
    just looking at the human body and how much sleep you get.
    These crew members are operating on a rotating schedule--
    sometimes they operate during the day, sometimes they operate
    during the night, and early morning hours. And we feel that the
    program that is enacted should appreciate the effect of the
    circadian rhythm on fatigue.
        Normally when the Safety Board looks at accidents involving
    fatigue, we look at three factors: the continuous hours that
    the crew member has been awake; the time of the day because we
    know that there are times of days that are more typically
    associated with the circadian low points; and reduced
    performance and alertness.
        And we also look at cumulative sleep loss. If I require 8
    hours of sleep, but I only got 6 hours last night. I've got a
    2-hour sleep debt from last night. If tonight I only get 6
    hours of sleep I will have a 4-hour cumulative sleep loss. So
    we think that the program, whatever's enacted, should
    appreciate the fact that the body has those functions operating
    against it as it relates to safety.
        So we think that there are some computer modeling programs
    that can predict, based on somebody's work schedule, when
    they're most likely to be fatigued to the point that it could
    impair their performance and alertness.
        Senator Klobuchar. Thanks. Ms. Siggerud, do you think we
    need more inspectors. I think the numbers that we have, 400 FRA
    inspectors and 700 railroads are operating on 219,000 miles of
    track.
        Ms. Siggerud. Senator Klobuchar, we didn't actually try to
    estimate the number of inspectors that would be appropriate.
    We're certainly open to the concept of assigning more
    inspectors. I think the real question would be how to best
    leverage those additional inspectors and the ones that we
    already have as they are deployed.
        This is why we made a couple of recommendations in our
    report about trying to understand more about the outcomes and
    results of the existing inspection and enforcement program as
    well as why we made the observation about the risk management
    concept that's used in related industries. The virtue of a
    concept like that is that by involving the railroads in
    identifying safety risks, having them develop risk management
    plans, and then using some of FRA's inspection resources to
    focus on their inspections on the implementation of those risk
    management plans, FRA is able to essentially broaden the reach
    of these inspectors beyond the current, very small percentage
    of operations and activities that they are able to observe.
        Senator Klobuchar. And then, Ms. Strang, I'm running out of
    time here, but I'll ask you a question for the record. It might
    be something you'll want to bring back to your lawyers anyway.
    It's about the FRA's position about pre-emption of state
    claims. We have obviously some victims next door in Minot,
    North Dakota and other places. We're concerned about having
    some kind of remedy in state court. And we'd like to know the
    position and--FRA's position and what the reasoning is for it.
        Ms. Strang. Thank you. I'll be happy to get back to you for
    the record.
        Senator Klobuchar. OK, thank you.
        [The information previously referred to follows:]

        National uniformity of railroad safety laws and regulations is
    essential to safe and secure railroad operations. Without nationally
    uniform standards, a railroad would be forced to continually change its
    operations, in an effort to meet different and often conflicting
    standards in every community through which it travels. This would
    create an impossible situation that would be both inefficient and
    extremely unsafe. Meaningful Federal preemption of state and local
    standards related to railroad safety and security is an essential
    component for maintaining national uniformity.
        FRA sympathizes with anyone injured as the result of a railroad
    accident or hazardous materials release. FRA's mission is to prevent
    such incidents from occurring, and we work toward that every day in a
    wide variety of ways.
        FRA is monitoring very closely the progress of the Minot cases
    making their way through the courts. However, FRA is not a party to any
    of these cases and is not permitted to take a position because the
    United States could become involved. If the Federal Government becomes
    involved in any of these cases, its position will be presented by the
    Department of Justice, which is the official representative of the
    United States in litigation.

        Senator Lautenberg. Thank you very much, Senator Klobuchar.
    I want to close, but I just want to ask, Ms. Strang, one more
    thing. Do your inspectors regulate solid waste operations that
    take place at rail facilities?
        Ms. Strang. No, we do not. That would be an Environmental
    Protection Agency issue.
        Senator Lautenberg. Or?
        Ms. Strang. Somebody else, but it's not us.
        Senator Lautenberg. That's because there's a very serious
    question being raised about that. I have several other
    questions that I'll submit to each of you in writing.
        And I note that something Senator Klobuchar talked about
    and that is we had in the last roughly 15 years an increase in
    the number of inspectors about 15 percent, adding roughly 50
    more. While there has been a 50 percent increase in ton miles
    from well, just from 1990 to the year 2000. And a 20 percent
    increase in train miles. We're not gaining on this.
    Realistically though the statistics have improved in some
    cases.
        I thank you and would--we'll keep the record open and send
    you any questions that we have; and ask for a quick response.
        I invite the second panel to the table and would ask if you
    would please assemble there. I have a call that I must take and
    I'll be right back.
        [Recess.]
        Senator Lautenberg. The Subcommittee is back at work and I
    apologize for the delay. I think it's quite apparent around
    here we have major issue after major issue to work on. And
    there's not always enough time. And the skills that you each
    bring to the discussion is critical, so we thank you.
        And I want to ask you, Mr. Wytkind, to start with your
    testimony and recognizing that 5 minutes is our target. You run
    over a minute or so, it's almost like passing an amber light,
    so please commence.

     STATEMENT OF EDWARD WYTKIND, PRESIDENT, TRANSPORTATION TRADES
                          DEPARTMENT, AFL-CIO

        Mr. Wytkind. I'm sure everyone heard that, but anyway. I'm
    technology deprived this morning.
        I want to thank you for having us here and I want to say
    that we're here to discuss rail safety reauthorization because
    the railroad industry has derailed every attempt to pass such a
    bill for the last ten or more years. And I want to thank you
    for holding this hearing and for giving us the opportunity to
    participate in the debate up here over how to move a strong
    rail safety bill.
        It is our sincere hope that the safety of the American
    public and railroad workers will prevail over private interest
    in this debate. For too long railroad industry profits, which
    as you indicated a little bit ago, have been quite robust, has
    trumped safety. And as a result our members have waited too
    long for action on a number of very important safety
    initiatives.
        Fatigue in the rail industry has reached a crisis
    situation. In dismissing legislative measures to address
    fatigue, too often the railroads claim a need for flexibility
    but fail to address the problem year in and year out. Having
    chronically tired workers is not good business. And it
    threatens the safety of workers and the public.
        There are many cases in which the railroad should have
    learned this lesson. In Macdona, Texas in June of 2004, three
    people died, 30 more suffered respiratory injuries when two
    trains collided releasing chlorine gas, as we all know. The
    NTSB accident report described a work schedule where 11 of the
    engineers previous work days were 14 hour work days with one
    being a 22 hour day. And worker fatigue was cited as a probable
    cause of that accident.
        Unfortunately it is routine for workers to be held several
    hours beyond the hours-of-service limitations in this industry.
    The NTSB found that at the time of the Texas accident more than
    40 percent of the Union Pacific's crew assignments in the San
    Antonio area had extended into what's referred to as limbo
    time. If the American public truly understood the severity of
    the fatigue problem in the railroad industry they would be
    screaming for Congressional action or alternatively, would be
    working to stop freight trains from traveling in their
    neighborhoods.
        I would urge this Committee to view the reports that I have
    read regarding excessive hours. And they're quite startling. I
    think you'll find that the stories in there and the reports in
    there are quite compelling. And we urge you to review them.
        I also receive report after report from member unions about
    excessive hours-of-service across the board. These reports are
    not merely the gripes of individual employees but a sincere
    warning about jeopardized safety. Such as signalmen workers who
    routinely face much longer hours than they're supposed to have
    on the job.
        Congress must step in and deal forcefully with the lack of
    employee training in this industry as well. It is appalling
    that in an industry that has earned $25 billion in the last 6
    years provides such substandard training. This is the same
    industry that parades up here regularly to talk about all its
    safety and security initiatives and its safe, state-of-the-art
    24/7 operations. Yet workers are just not being trained.
        The rail lobbyists call post-training requirements,
    ``redundant and unnecessary,'' but they have no answer for what
    workers are telling us. They are telling us they are receiving
    little or no training. And unfortunately there's this mass
    exodus of veteran employees that are leaving the industry as
    they retire. And a lot of institutional knowledge is being
    lost. And as a result of that that becomes a real safety issue
    because those co-workers are relied upon to train the next
    generation of workers in the rail industry.
        We also believe that Congress needs to beef up the Federal
    rail inspection workforce. An average fine against a railroad
    in this industry is $39 per infraction.
        Last, but not least, let me talk about the cultural
    harassment and intimidation in the industry. We've seen one
    case after another of workers being, not only mistreated, but
    threatened and intimidated from coming forward to report safety
    and security problems. Documented cases show a culture of
    harassing and suppressing the facts and using heavy-handing as
    the FRA has cited often in legal tactics to despise--to
    disguise the facts: underreporting of injuries, delaying
    medical treatment for injured workers, forcing employees to
    wait often 2 hours or more for treatment.
        We had one employee who had a cut on his back that required
    stitches. But due to company policy was forced to wait for a
    supervisor to go 89 miles to that location before he could
    receive medical attention.
        Clearly the Committee has a chance to enact strong measures
    that help to change this perverse culture. And we really do
    urge you to do so by putting very strong whistleblower
    protections in there that empower workers to step forward with
    their safety and security risks.
        Let me wrap up by addressing two other issues, among others
    that are in my submitted testimony that we will be pushing very
    hard on. It's first, to consider measures to stop the
    outsourcing of train inspections to Mexico. It's an issue
    that's been addressed twice in petitions by the Union Pacific
    Railroad. We hope that you'll seek legislative action in that
    area.
        And also we hope that you'll take action to begin to
    eliminate the dark territory problem that plagues the entire
    rail industry. As we all know the Graniteville, South Carolina
    wreck could have been avoided with the right use of technology.
    And there are other examples around the country where we should
    not have locomotive engineers and conductors traveling around
    trains in dark territory.
        It is wrong. This is the 21st century. We should not be
    running trains in the dark without the proper signaling
    technology.
        I want to thank you, Mr. Chairman for having us here. And
    look forward to any questions you may have. And look forward to
    working with you on this legislation. Thank you.
        [The prepared statement of Mr. Wytkind follows:]

               Prepared Statement of Edward Wytkind, President,
                   Transportation Trades Department, AFL-CIO
        Chairman Lautenberg, Senator Smith, and Members of the
    Subcommittee, let me first thank you for the opportunity to testify
    this morning and to present the views and concerns of transportation
    workers as you embark on efforts to reauthorize the Federal rail safety
    program. As this Committee knows, the Transportation Trades Department,
    AFL-CIO (TTD) consists of 32 member unions in all modes of
    transportation, including those that represent hundreds of thousands of
    rail workers in the freight, passenger and commuter sectors. There is
    no question that we have a vested interest in the topic of today's
    hearing and, in fact, have joined with you and other members of this
    Committee in pursuit of policies that will enhance the safety and
    security of this critical industry.
        The workers who operate and maintain our Nation's rail system and
    equipment are critical to the safe and efficient movement of goods and
    people throughout our country. But for their dedication and
    professionalism, commerce in this country would come to an immediate
    standstill. Yet, for more than a decade the safety concerns of rail
    workers have been ignored in the legislative process as the railroad
    lobby has stonewalled every attempt to update our rail safety laws. It
    is long-past time to move meaningful rail safety legislation.
        As we talk about rail safety initiatives, it is important to
    recognize that we are not dealing with an industry that can claim it
    does not have the resources to comply with common-sense safety
    directives. The freight railroads have pocketed $25 billion in profits
    over the past 6 years according to their own annual reports. Yet, this
    same railroad industry has effectively blocked rail safety legislation
    since the last reauthorization bill expired in 1998.
        Let me mention a few specific areas of concern that rail labor has
    advocated for years and place the need for rail safety authorization in
    some context for the Subcommittee.\1\ I should also note that House
    Transportation and Infrastructure Committee Chair Jim Oberstar (D-MN)
    and Railroads Subcommittee Chair Corrine Brown (D-FL) have introduced a
    strong rail safety bill, H.R. 2095, which addresses many of these
    issues and which we have endorsed.
    ---------------------------------------------------------------------------
        \1\ Attached are two documents: ``Safety Proposals by the Railroad
    Operating Crews,'' submitted by the United Transportation Union (UTU)
    and testimony to the House Railroads, Pipelines and Hazardous Materials
    Subcommittee by the Brotherhood of Railroad Signalmen (BRS).
    ---------------------------------------------------------------------------
    Reporting and Employee Protections
        First, the railroad industry can never be safe if employees are
    intimidated and harassed when they report accidents, injuries and
    safety problems. Our members continue to face retribution, harassment
    and intimidation for reporting accidents and potential safety and
    security problems. As I have reported to this Committee before, there
    is a pervasive culture in the railroad industry that tamps down
    reporting. In the railroads' quest for Harriman safety awards and
    glowing safety reports, in reality, safety is compromised. Workers are
    routinely forced into ``team'' reporting where groups of workers are
    rewarded for filing no injury reports in a given time period. This
    means that when a worker severs a finger, for example, he may forego
    treatment or face pressure from his team--a convenient way for
    management to use co-workers to do their intimidating for them.
        Safety measures in the railroad industry are based on FRA's data
    collection from accident and incident reports. Since workers are so
    soundly and routinely discouraged from actually submitting reports, the
    FRA's data is inherently flawed. Likewise, rules, regulations,
    penalties and fines that are based on accident and incident reports are
    misaligned as well.
        Workers should not have to choose between job security and the
    security and safety of the rail transportation system--yet that is what
    is happening today. The stories I hear from members are shocking--yet
    are common. Members injured on the job are denied medical care until
    company representatives arrive on the scene and then convinced by the
    injured worker that they need urgent care. They are accompanied to the
    hospital or doctor by supervisors. Supervisors ``remind'' injured
    workers that taking a prescription drug would make the case reportable
    to the FRA. We have reams of paper documenting harassment and
    intimidation of workers with respect to accident and injury reporting.
    It is a pervasive problem in the industry that has gone unchecked for
    too long and must be addressed by Congress.
        Strong whistleblower language is key to improving rail safety.
    Clearly, if Congress can find the will to protect those who report
    financial security problems as it did in the Sarbanes-Oxley Act, the
    same should be expected for rail workers. We were disappointed that the
    Administration failed to recognize the need for whistleblower
    protections for workers in its bill, but are pleased that the Oberstar-
    Brown bill includes strong whistleblower provisions. We also believe
    the section in H.R. 2095 assuring injured workers of prompt medical
    attention is important, and we support its inclusion in your bill.
    Fatigue
        It is well documented that fatigue is a factor in many rail
    accidents. The catastrophe in Macdona, Texas that resulted in three
    deaths should have been a wake up call. According to the National
    Transportation Safety Board (NTSB), the probable cause of that accident
    was train crew fatigue. And at the core of the issue were Union
    Pacific's train crew scheduling practices. With record profits and an
    overloaded system, it is unconscionable that the railroad industry
    refuses to hire the workers they need and instead make employees work
    dangerously long hours.
        Operating crews often put in 12-hour days, then have to wait on
    their train ``in limbo'' for hours more until a replacement crew
    arrives, and then must return to work 10 hours later (or face
    retribution from their employer). Limbo time refers to the time
    consumed between completion of the maximum allowable 12-hour shift and
    the time when an employee is completely released from service. The
    railroads have taken advantage of an erroneous interpretation of the
    hours-of-service regulations and now regularly compel crews to remain
    at the work place to guard stationary trains until a relief crew is
    available for service. This ``relieved but not released'' status means
    workers are forced to remain on duty for hours and hours after
    completing a 12-hour shift. The railroads will tell you that
    eliminating limbo time will create impossible scheduling problems, but
    let's be clear: the reason eliminating limbo time is problematic for
    the railroads is because it has become a major component of their
    routine scheduling practices. Limbo time was not a problem prior to the
    Supreme Court decision in 1996 (which held that time waiting for
    deadhead transportation is limbo time and therefore neither time on-
    duty or time off-duty). Eliminating limbo time in its entirety is the
    only meaningful way to end its routine abuse.
        For signal workers, the manipulation of hours-of-service has become
    commonplace. While the 12-hour law applies to signal employees, there
    is an exception that allows employees to work up to four additional
    hours ``when an `actual emergency' exists and the work of the employee
    is related to the emergency.'' Railroads have exploited this exception
    to the extent that now almost all signal work is classified as an
    emergency. Signal employees routinely work 16-hour days.
        When the Hours of Service (HOS) Act was expanded to include
    signalmen in 1976, it was intended to be a 12-hour law. And, it should
    be noted, that is how the railroads originally applied the law. If, for
    example, signal personnel were working on a signal problem and were
    approaching the 12-hour work limit they would inform their supervisor
    and the supervisor would make a decision if the individual would finish
    the work within the time limit, or if another employee would be called
    to finish the repair work. However, through gradual ``creep'' by the
    railroads the law has become a 16-hour law. Signal employees today are
    instructed to work up until the 16-hour limit before they call for any
    relief personnel. In some cases, the railroads authorize outright
    violation of the HOS Act and order their signal employees to continue
    working until they are finished with the repair work.
        Of greater concern, is that employees can be required to work 20
    hours in a 24-hour period without adequate rest. Let me illustrate a
    typical duty time example for you: on Sunday evening a signalman goes
    to sleep at 9 p.m. and awakens at 5 a.m. to arrive for his regular
    Monday shift of 7 a.m. to 3:30 p.m. Under current law, at 3:30 p.m. his
    ``rest'' period starts. At 11:30 p.m. he is considered fully rested and
    a new 24-hour clock begins, despite the fact that he may have just gone
    to sleep at 10 p.m. After less than 2 hours of sleep he then receives a
    call to work at 12 a.m. on Tuesday. He works four additional hours and
    is finished with the trouble call at 4 a.m. He then travels home and
    has to return for his regular shift at 7 a.m. The cumulative effect of
    the law on the individual is that he is allowed to work a total of 20
    hours-of-service within a 32-hour period without rest. You can imagine
    the situation exacerbated further when the railroads tack on their
    additional four ``emergency'' hours. The HOS Act should be amended to
    require that employees performing signal work receive at least 8 hours
    of rest during a 24-hour period.
        Furthermore, scheduling continues to be a major problem for
    railroads and their employees. Unless employees know in advance what
    time they must report to work, they cannot properly prepare with
    adequate rest. Our railroads operate on a continuous schedule, 24 hours
    a day, 7 days a week from coast to coast. Rail workers do not have
    typical 9 to 5 work hours. However, with the technology available today
    there is no reason why every rail worker cannot know his or her
    schedule in advance and be able to plan (i.e., rest, family time,
    personal time, commute time, etc.) accordingly.
        Each rail carrier has an information delivery system which is
    commonly referred to as a ``lineup'' that is used to advise crews who
    are subject to call 24/7 regarding their status. Our members constantly
    complain of problems with these ``lineups.'' It is absolutely essential
    that employees have early and reliable information about the date and
    time when they will be required to report for duty. Moreover, workers'
    rest time should not be interrupted by communications from their
    employers.
         Adequately addressing the fatigue issue will require collaboration
    and cooperation as do all human factor issues in our industry. Having
    said that, we are committed to finding solutions to make our railroad
    safer and believe that there are several common-sense fixes that can be
    addressed immediately. The elimination of limbo time is essential.
    Guaranteed time off and shortened work days will result in better
    rested, better prepared and more efficient employees.
    Training
        The current training structure for rail workers is woefully
    inadequate. Despite the industry's claim that it will need to hire
    80,000 more workers just to maintain the current movement of freight,
    it continues to ask its workers to do more with less. Industry leaders
    will tell you about their railroads' extensive training programs and
    detailed security plans. Let me tell you what rail workers--the workers
    who move trains, fix track, maintain grade crossing signals, repair
    train cars and work on-board--are telling me. I hear first hand about
    an overworked, understaffed workforce that is ill-equipped to manage
    the capacity crunch facing our railroad system.
        New hires have not kept pace with retirements in our aging
    workforce. As a result, new hires are commonly steered through
    shortened, one-size-fits-all training programs. Despite the hype you
    will hear about new state-of-the art training centers, our members
    continue to be frustrated by inadequate training programs. We know from
    reports in the field and exit interviews that new employees are
    resigning and leaving the industry because they are dissatisfied with
    the quality of their training, uncertain of their skills and
    uncomfortable with what they are asked to do with limited support.
        For both operating and on-board crafts as well as maintenance
    workers, training is largely left to peer-to-peer training. As the
    workforce retires, critical ``institutional'' knowledge is lost.
    Coupled with limited classroom training and virtually no on-the-job
    training requirements, workers are entering the field with very little
    experience and little oversight. This is hardly a recipe for safe and
    stable operations. Not surprisingly, the Administration's bill did not
    address the need for a better trained and more prepared workforce. We
    urge you to do better and provide, at minimum, basic training standards
    for all class and crafts of employees.
        Similarly, certification requirements for safety-sensitive work
    groups are needed. Certification provides important qualification
    standards for rail workers. To ensure accountability for the safe
    operation and maintenance of railroad equipment and facilities, carmen,
    conductors, mechanics, signalmen and other safety-sensitive personnel
    should be certified. Furthermore, any train that carries hazardous
    material should be staffed by workers certified in hazard
    identification, health effects and first response. Such training and
    certification should obviously also apply to emergency and first
    responders such as track and signal employees.
    Track Safety
        We anticipate that your rail safety agenda will include a myriad of
    changes to improve track safety and the safety of rail workers and
    communities. Of the many improvements related to track safety that are
    of concern to rail labor, let me mention just a few today.
        Non-signaled, or ``dark territory'' refers to movement of trains
    over track without signals. Trains run through dark territory under the
    direction of a dispatcher but without the safety redundancies of switch
    monitors, block protection, or broken rail detection. Signal systems
    are affordable, relatively low-tech technologies that save lives.
    Unfortunately, the rail industry routinely fails to properly maintain
    signal systems and, in fact, often petitions the FRA to waive signal
    requirements for large areas of track.
        The tragedy in Graniteville, South Carolina occurred in dark
    territory. A basic signal system would have noted that the hand-thrown
    switch was not properly lined and the train would have had a red signal
    to stop. Nine people died in Graniteville (including the train engineer
    who was not properly trained in hazmat evacuation procedures). Signal
    systems save lives when they are present and maintained properly. The
    NTSB has been clear in its recommendations in this area. Until the
    railroads commit to install adequate signal technology throughout the
    entire rail system, the NTSB recommendations are vital. Moreover, rail
    labor is adamant that petitions to remove signal systems and increase
    dark territory in our rail system be rejected.
        Technological advances are important tools in creating a safer rail
    network. Rail labor has welcomed and adapted to technological changes
    over the years. The implementation of positive train control (PTC)
    systems is on the NTSB's most wanted list of transportation safety
    improvements. Rail labor has partnered with the FRA and others through
    the Railroad Safety Advisory Committee (RSAC) process to address PTC in
    order to prevent train collisions and over-speed accidents. We have
    been very supportive of developments in this area.
        However, notwithstanding technological advancements, including PTC,
    we oppose single person operation of rail locomotives. The
    responsibilities of a railroad to operate safely over public crossings,
    to inspect the moving train, to open public crossings quickly when
    stopped, and to interact with emergency responders as situations
    warrant cannot be address by PTC, and were not designed to do so.
    Railroads that are intent on operating trains with a single individual
    are ignoring their responsibility to their employees, local
    communities, local emergency responders and the general public.
    Oversight
        A qualified, well-trained and adequately staffed inspector
    workforce is critical to the safety of our Nation's rails. To that end,
    rail labor notes that the current level of staffing at the FRA is
    woefully inadequate. Currently each FRA track inspector is responsible
    for over 500 miles of track. Current regulations call for a minimum of
    two track inspections a week. Understanding that track inspection is
    time-consuming, labor-intensive work it is impossible to expect the
    current inspector workforce to actually inspect all of the lines they
    are tasked to oversee. More inspectors not only will increase the
    safety of our railroads, but an increased presence on the railroads
    will have the added benefit of discouraging trespassers and those
    intent on creating havoc on the railroad.
        As the General Accounting Office (GAO) has reported, there are
    myriad problems with safety oversight by the FRA. Because the number of
    FRA and state inspectors is small relative to the size of railroad
    operations, FRA inspections can only cover 0.2 percent of railroad
    operations.\2\ When safety problems are found during that very small
    number of inspections (about 3 percent in 2005), the FRA does not
    measure the extent to which the identified safety problems have been
    corrected.\3\ As I mentioned before, rail companies are making money
    hand over fist, and even the GAO states that it is not clear whether
    the number of civil penalties issued, or their amounts, are having the
    desired effect in improving compliance.\4\
    ---------------------------------------------------------------------------
        \2\ Reauthorization of the Federal Rail Safety Program: Hearing
    Before the House Subcommittee on Railroads, Pipelines, and Hazardous
    Materials, 110th Cong. (2007) (statement of Katherine Siggerud,
    Director, Physical Infrastructure Issues, Government Accountability
    Office).
        \3\ Id.
        \4\ Id.
    ---------------------------------------------------------------------------
        Even the most robust safety rules are meaningless if not fully
    enforced by Federal regulators charged by Congress with this task. Yet
    we know that the railroads have used their considerable political clout
    to limit enforcement activities and oversight and in reality face
    little consequence for safety infractions. Fines, when they are levied
    at all, are little more than nuisances to multi-billion dollar rail
    companies. Congress must step in to make rail carriers that violate
    safety regulations accountable for their actions. Fines should be
    increased exponentially and penalties should more adequately reflect
    the level or number of infractions by a carrier.
    Cross-Border Safety and Security
        Finally, we hope this Committee will recognize the need to address
    the issue of safe cross-border transportation in the rail sector. As
    U.S. industries continue their drive to outsource American jobs and cut
    costs, we must remember the safety implications of such actions. Train
    inspections currently performed by U.S. rail workers play an important
    role in ensuring the safe and secure movement of U.S. cross-border
    operations. We hope this Committee will consider making a strong
    statement in the reauthorization bill to prohibit rail carriers from
    waiving U.S. inspection mandates (and outsourcing them to Mexico) or
    other safety requirements in cross-border operations.
        We look forward to working with you and as the Committee prepares
    to move legislation that will make our railroad industry safer. I thank
    you for this opportunity to testify, and I will be happy to answer any
    questions.
                                  Attachment 1
    Safety Proposals by the Railroad Operating Crews
        There are a number of safety improvements which Congress needs to
    address. We discuss them below in no particular order of importance.
    However, the most significant issues facing railroad workers today are
    fatigue and harassment.
    Employee Protections Against Harassment and Intimidation
        Nothing in the railroad industry is more disruptive and demeaning
    to an employee than harassment and intimidation he/she continues to
    experience on many railroads.
        For example, some carriers use discipline or the threat of it to
    suppress the reporting of an injury. The current FRA requirements are
    virtually inadequate to prevent this harassment.
        We must ensure that workers who report or identify a safety or
    security risk will not face retribution or retaliation from their
    employers. One should not have to choose between doing the right thing
    on safety or security and risk of losing his or her job. Despite the
    whistleblower protections included in the current law, rail workers and
    their unions continue to experience employer harassment and
    intimidation when reporting accidents, injuries and other safety
    concerns. Indeed, in an FRA report issued in July 2002 entitled An
    Examination of Railroad Yard Workers Safety (RR02-01), the FRA
    conducted focus group interviews with certain groups of rail workers.
    The FRA stated, ``Perhaps of most significance, rail labor painted a
    generally adversarial picture of the safety climate in the rail
    industry. They felt that harassment and intimidation were commonplace,
    and were used to pressure employees to not report an injury, to cut
    corners and to work faster.'' It is disingenuous for rail carriers and
    government to ask workers to report problems while at the same time
    refuse to provide the basic protections needed to ensure that such
    reporting will not result in employer retribution.
        Adequate provisions are necessary to protect safety of whistle-
    blowers and those subjected to intimidation. The various crafts have
    received countless complaints from employees of instances of outright
    harassment and intimidation. Some of these examples include:

            Not reporting an injury or occupational illness soon enough for
            the carrier;

            Railroads imposing multiple disciplinary hearings and
            investigations arising out of a single incident or accident;

            Requiring multiple statements to a railroad arising out of a
            single incident in an attempt to obtain conflicting facts;

            Constantly providing medical records to a railroad, even though
            no litigation has ensued;

            Being harassed for not authorizing the use of defective
            equipment;

            Retaliation for reporting, or attempting to report, on-the-job
            injuries; and

            Supervisors interfering with their medical treatment for on-
            the-job injuries or work related illnesses in order to avoid
            making the injury reportable to FRA.

        There needs to be effective employee remedies for an expanded
    number of safety activities. Currently, there are limited protections
    available under 49 U.S.C. 20109, which is administered under the
    Railway Labor Act, if an employee is discriminated against or
    discharged for filing complaints of rail safety violations or
    testifying in a rail safety proceeding. This procedure has proven to be
    ineffective in curtailing the harassment and intimidation. The list of
    protected activities needs greater expansion, and there needs to be
    effective employee remedies. As for remedies, there are current
    provisions for compensatory damages and for punitive damages which need
    to be expanded to remove the cap on liability, and to provide an
    effective deterrent even when an employee is made whole for any wage
    loss as a result of retaliation. Additionally, the affected employee
    should have the option to bring an action for damages in court, rather
    than the cumbersome procedures under the Railway Labor Act. This
    certainly would greatly deter anti-safety harassment in the industry.
    Fatigue, Time on Duty, Deadhead Transportation, and Sleeping Quarters
            in Yards
        One of the most critical railroad safety issues involves the hours-
    of-service of rail workers. This covers the maximum number of hours an
    employee should be permitted to work each day and each week, amount of
    undisturbed rest (i.e., calling time), regular scheduling, and being
    required to remain on trains after the maximum time on duty has been
    reached. As shown by numerous studies, there is an overwhelming body of
    evidence which demonstrates that fatigue is endemic in the railroad
    industry. Those who have studied this issue agree that the problem is
    pervasive, and the industry has not adequately addressed it. Railroad
    operating crews are typically plagued by chronic fatigue caused
    primarily by excessive hours of work coupled with inadequate rest time,
    and by unpredictable and irregular work schedules. The problems
    experienced by the workers are varied: typically, the employee takes
    the few free hours he/she has off-duty to pay attention to personal and
    family matters; many experience circadian rhythm problems; employees
    are forced to work too many successive days without a day off; and
    others are called to duty sooner than expected. These problems have
    long been recognized in the industry. Not even the railroads can, with
    a straight face, dispute the evidence. Safety on the rails depend upon
    compliance with the safety statutes and regulations and the operating
    rules of the railroads. We know from the body of evidence that they are
    often compromised by employees' inability to obtain adequate rest.
        The current law is deficient in various ways. It is not limited to
    the employees' weekly or monthly work hours, restrict the irregularity
    or unpredictability of on-call work schedules, or restrict commuting
    distances without compensatory time off. Extensive night work,
    irregular work schedules, extended work periods with few or no days
    off, and the policies and procedures that encompass such practices are
    permissible within the current law. (See, Coplen, M. and D. Sussman,
    Fatigue and Alertness in the U.S. Railroad Industry Part II: Fatigue
    Research in the Office of Research and Development at the Federal
    Railroad Administration (March 2000).
         We believe the remedy is to give the FRA authority to regulate
    fatigue, and at the same time, keeping in effect the statutory
    protections obtained over the years. Also, we strongly recommend that
    Congress amend the law to require that waiting for deadhead
    transportation and deadhead transportation be counted as time on duty,
    require undisturbed rest (calling time), and mandate the removal of the
    few remaining sleeping quarters from rail yards.
        There have been numerous studies and recommendations regarding
    hours-of-service. The time for Congressional action is long overdue.
    Hopefully, your Committee will make the needed changes in the law. We
    will now summarize for the Committee the agencies that have
    investigated this problem, and demonstrate to you that fatigue is
    unfortunately a reality working on the railroads.
        It is to be noted that in 1994 Congress granted FRA a limited
    authority to approve pilot projects, including waivers of the statute,
    proposed jointly by rail labor and management. This has not proven to
    be very effective.
    Certification of Conductors
        In 1988 Congress created an anomaly by requiring FRA to disqualify
    employees who were not performing work safely. However, it failed to
    address what should be the minimum ``qualification'' standards for rail
    employees. The amendment extends to conductors and trainmen the
    requirement for certification. Conductors and trainmen perform
    significant safety-sensitive functions, and should have formal
    competency requirements, as do engineers.
    Administrator's Qualifications
        There should be qualification standards for FRA Administrators
    similar to provisions which are contained in the NTSB law and
    appointees to the Surface Transportation Board. That is, the
    Administrator should be appointed on the basis of technical
    qualification, professional standing, and demonstrated knowledge in
    transportation regulation and safety.
    Final Agency Action
        The FRA rarely meets statutory deadlines for issuing regulations,
    or in responding to petitions by rail labor. One of the clearest
    examples of this deficiency is pointed out in House Report 102-205 on
    H.R. 2607.\1\ There, the Committee on Energy and Commerce noted that 4
    major rulemakings required to be completed within 2 years or less by
    the Rail Safety Improvement Act of 1988 were not completed by the
    statutory deadline.
    ---------------------------------------------------------------------------
        \1\ H. Rep. No. 102-205 at p. 9.

            ``In the Committee's view, section 23 mandated that the
            Secretary issue grade crossing signal system regulations within
            1 year and provided the Secretary with discretion only to
    ---------------------------------------------------------------------------
            determine the extent of such regulations.''

        In the 1988 safety law, Congress mandated that the bridge
    protection standards for maintenance of way employees be issued within
    1 year. The Notice of Proposed Rulemaking was not issued until January
    30, 1991, and a hearing was conducted on May 1, 1991.
        Regarding petitions filed by rail labor with the FRA, aside from
    the fact that they are rarely, if ever, granted, FRA historically has
    not considered them within the 1 year deadline required by Congress in
    1976. See, 49 U.S.C. Sec. 20103(b). An example of this is neglect is
    that the Brotherhood of Maintenance of Way Employees on May 30, 1990
    filed a petition with FRA to require revisions of the Federal Track
    Safety Standards (FRA Docket No. RST-90-1). FRA did not even conduct a
    hearing until after the 1 year deadline had passed.
        We have reviewed each statutory limit placed upon the FRA since the
    one year requirement was enacted, and the FRA has rarely met the
    deadline.
    Studies by the Secretary
        There are a number of studies which should be conducted on railroad
    safety. These include:

            1. A detailed analysis of the quality of each railroad's
            training program.

            2. A long term study of fatigue in the railroad industry.

            3. The safety consequences of railroads contracting out of work
            to independent contractors.

            4. The safety impact of drivers of railroad crews to and from
            duty assignment.

            5. An evaluation of conflicting and confusing railroad
            operating rules.

            6. A follow-up study of the Switching Operations Fatalities
            Analysis (July 2001) and a follow-up study of Collision
            Analysis Working Group (July 2006).

            7. Locomotive cab environment and its impact on human
            performance.
    Conrail Regulation
        Section 711 of the Regional Rail Reorganization Act of 1973 (45
    U.S.C.  797j), among other things, prohibits any state from regulating
    any railroad in the region. This includes 18 states. That section was
    adopted in 1981 to deal primarily with the full crew laws where Conrail
    was operating, but the section, as adopted, was much broader to cover
    all regulation by the states. With Conrail mostly gone, the section has
    long ago fulfilled its purpose, and should be repealed.
    Incorporation of AAR Standards
        The Federal Government, through the FRA, delegates the authority to
    approve tank car designs to the AAR. Before any tank car may be used on
    the railroad system, the AAR Tank Car Committee must approve of its use
    on the rails. The builder of a tank car must apply for approval of the
    design, materials and construction, to the AAR for consideration by its
    Committee on Tank Cars.
        The power brake regulations (See, e.g., 49 CFR  232.7), relating
    to periodic testing of brakes while cars are in the shop or repair
    track, requires the tests to be performed in accordance with the AAR
    Code of Rules.
        The problem is the AAR has changed the rules without any official
    oversight by FRA.
    Grants or Loans to Railroads
        This arises out of the request by the DM&E railroad for a $2.3
    billion loan from FRA. The FRA on 1/31/07 issued a Record of Decision
    in the matter, and only perfunctorily dealt with the safety issues. For
    example, it misled the public in Figure 3-1 regarding train accidents
    on DM&E. However, the FRA, in showing an improvement in 2006 over 2005,
    did not bother to point out that the monetary threshold for reporting
    accidents increased from $6,700 in 2005 to $7,700 in 2006, a 16 percent
    increase. Obviously, this is a large reason for the alleged safety
    improvement.
        The railroad over the years has had the worst safety record, or
    among the worst, compared with any other in the U.S. (If you want
    stats., let me know). The FRA didn't think this was significant in
    considering the loan.
    A Felony To Violate Grade Crossing Signals
        It is obvious that something must be done, other than studying the
    crossing problem, if sufficient funds cannot be found to put protected
    crossings everywhere. The BEST solution is to place adequate sanctions
    upon those who don't obey crossing warning signs.
    Training of Crews Transporting Hazardous Materials
        In this day of heightened terror threats, coupled with the
    necessity for crews to transport more and more spent nuclear fuel,
    etc., there needs to be a certification that the crews have been
    properly trained. The railroads are doing a poor job, as will be shown
    in the testimony of Edward Wytkind, President of the Transportation
    Trades Department, AFL-CIO.
    Minimum Training Standards
        The lack of training in the industry transcends all classes of the
    railroad workforce. There are some FRA regulations which require
    training, but the extent of the training is left to each carrier. The
    problem is that due to the revised railroad retirement law, many early
    retirements continue to occur. The industry is becoming younger and
    younger, and at the same time business is booming, which puts pressure
    on the railroads to place the employees into service without sufficient
    training.
        The lack of appropriate training is the number one safety issue
    facing the rail industry today--and it should be of significant and
    urgent concern to the Congress. These training deficiencies are not
    confined just to operating employees, but also include train
    dispatchers, signal employees, maintenance of way employees, locomotive
    repair and servicing employees, and track inspectors.
        There was a time when trainmen and yardmen in freight and passenger
    service were naturals for becoming engineers. They possessed an
    impressive working knowledge of the physical characteristics of the
    terrain, in-train forces and operating rules and procedures. These
    veteran operating employees had only to become proficient in applying
    this knowledge to their new craft while, at the same time, honing their
    train handling skills. Unfortunately, this is no longer a reality.
        As our aging workforce retires, and our railroad business increases
    dramatically, the railroads have delayed hiring replacements. As a
    result, they rush new hires through shortened, one-size-fits-all
    training programs. It is not uncommon on any train, anywhere in
    America, to find an inexperienced trainman paired with a new engineer.
    It is very unlikely the trainman received training over the territory
    he or she is working, or was taught the special problems that exist,
    and skills required, in regions with temperature extremes, heavy grades
    or complex operating environments. Most troubling is that it is
    unlikely either the new trainman or new engineer were provided
    classroom training where actual application of the operating rules were
    taught. They needed only to memorize rules--not know how to apply
    them--in order to graduate. What's more, most veteran employees believe
    that recurrent training in the railroad industry has become a farce.
        Newly hired trainmen should not be required to work unsupervised or
    operate locomotives until they are truly experienced in the trainman
    craft. This ensures they have become proficient in their train service
    and have gained needed on-the-job experience before assuming additional
    demanding duties and responsibilities.
        A 1 year minimum in train service prior to becoming a conductor
    would improve the quality and competency of railroad operating
    employees, which equates to safer and more efficient operations.
        It also ensures that newly hired employees will have approximately
    2 years of practical railroad experience before they can be expected to
    operate locomotives without direct supervision.
        The attraction and retention of qualified candidates for employment
    and their training is a major safety issue for all unions in the rail
    industry. Unfortunately, the rail carriers have attempted to make
    training of new employees an issue reserved exclusively for collective
    bargaining, where the carrier's only concern is the cost of the
    training. The large turnover in new railroad operating department
    employees has a direct relationship to the lack of experience and
    proper training in our industry. Many new employees express their
    frustration at being overwhelmed with the level of responsibility that
    they have received with poor training and little experience on the job.
        Another FRA initiative, the Switching Operations Fatality Analysis
    (SOFA) found that training and experience were critical safety issues.
        The rail industry is absorbing a record number of new employees in
    every department while operating at maximum capacity because of the
    record levels of rail traffic. UTU has attempted to address the
    inadequate training issues in every forum, including the collective
    bargaining arena, with very little progress. The railroads have been
    reluctant to recognize that the adequacy of training is a genuine
    problem and have not addressed this issue with the unions in a
    meaningful manner. They have refused to even allow FRA to offer their
    expertise in training techniques, and have declined labor's offers to
    establish of cooperative mentoring programs for the critical component
    of ``On the Job Training''. The rail industry will have more than
    80,000 new employees in the next 5 years. Unless we can quickly
    eliminate training as the major safety issue, we can only expect this
    negative trend in safety analysis to accelerate.
    Venue
        This really is not a lawyer issue; rather it is for the injured
    citizens in a state, and injured workers. First, when citizens are
    injured as in Minot, ND a few years ago, the railroads force the cases
    into Federal court which, for many, was located a long distance away
    from the homes of the injured. Also, we need not tell you how burdened
    the Federal courts calendars are these days. State courts should be
    available when alleging violations of Federal safety regulations. State
    judges are just as competent as many Federal judges to rule on
    preemption.
        Regarding operating crews and maintenance of way employees, they
    travel sometimes hundreds of miles from home in their work. Injuries
    most often occur many miles from home. The railroads always attempt to
    have the case tried as far away from the employees' residence as
    possible, so that it will be inconvenient and expensive for the
    plaintiff. The employee is treated at his/her place of residence and
    should have the option of filing suit where he/she lives, rather than
    hundreds of miles away. Thousands of motions have been filed by the
    carriers to have the venue chosen by the plaintiff to be removed to
    another court.
    Local Safety Hazard
        Many of the state public utilities commissions are seeking to
    delete the local safety hazard provision contained in 49 U.S.C.
    20106(1). The National Association of Regulatory Utility Commissions
    has issued a resolution recommending that Congress eliminate the local
    hazard section. We support this change. Virtually every time a state
    attempts to regulate an area, the railroads challenge the proposal.
    Most courts rule Federal preemption even though the FRA has not covered
    the particular problem. By simply eliminating the ``local safety
    hazard'' provision, the states still could not regulate if it
    conflicted with a FRA regulation or was an undue burden on interstate
    commerce.
    State Common Law
        The courts in the cases arising out of the Minot, ND accident have
    ruled that the citizens injured have no rights to seek damages because
    the state's common law is preempted by the Federal railroad safety
    laws. This is an outrageous decision, and even the President of the
    Association of American Railroads testifying in the House safety
    hearings stated that the industry disagreed with the decisions.
        Congress is dealing with this matter in the pending transportation
    security legislation which is in conference. Hopefully, this will be
    corrected in that bill. If not, we urge you to place a provision in the
    safety legislation.
    Prompt Medical Attention
        First, the existing regulation addressing this issue is completely
    ineffective in assuring the employee receives prompt medical attention.
    It provides that a railroad shall have in place an Internal Control
    Plan which shall include, in absolute terms, that harassment or
    intimidation of any person that is calculated to discourage or prevent
    such person from receiving proper medical treatment or from reporting
    an accident, incident, injury or illness will not be permitted or
    tolerated and will result in disciplinary action against such person
    committing the harassment or intimidation. I am unaware of FRA ever
    enforcing this provision.
        This above provision does not cover matters such as allowing the
    employee to go to the hospital before being forced to give a formal
    statement to a supervisor or claim agent, or go to the scene of the
    accident first with the supervisor; it doesn't require the railroad to
    provide prompt transportation to the employee; there is no protection
    regarding harassment; and simply following the plan of a treating
    physician is not addressed. A recent Federal court decision held that
    an Illinois statute mandating prompt medical attention was preempted.
    See, attached summary judgment in BN/SF, et. al v. Charles Box, et.
    al., No. 06-3052, C.D.D.C. Ill., 1/18/07. Other states have adopted
    similar legislation, which is being challenged. A Federal amendment is
    needed to correct this problem.
    Alcohol and Controlled Substances Testing
        We strongly believe that railroads should be required to conduct
    all toxicological testing under the same protections as required under
    the Federal alcohol and drug testing regulations. There are many abuses
    connected with the testing conducted under the railroads own testing
    program. For example, some carriers do not allow a split sample to be
    retested by the employee. Each railroad has its own internal policies
    for testing, and protections for the integrity of such testing is not
    present in many instances. Therefore, we request that in the event a
    railroad conducts toxicological testing of its employees under its own
    program, such testing be conducted under the same protocols and
    procedures of Title 49, C.F.R., Parts 219 and 40.
    Mexican Railroads and Employees
        The railroads whose tracks connect with Mexico continue to seek
    waivers from the FRA regulations to allow Mexican workers make the
    tests and inspections in Mexico, and/or to allow trains to enter the
    U.S. without proper inspections on the U.S. side of the border. This
    should not be allowed for various reasons. Significantly, the U.S.
    cannot oversee the quality of testing inside Mexico. Also, Mexican
    engineers entering the U.S. do not have the same qualifications as U.S.
    certified engineers.
    Critical Incident Stress Plan
        This amendment seeks to require a critical incident stress plan
    similar to that in place at the FAA. It is designed to proactively
    manage the disruptive factors that an employee usually experiences
    after an accident/incident. It is designed to minimize the impact upon
    the employee. Rapid access to a CIS program following an accident will
    minimize the duration and severity of the distress associated with such
    an event. As with the airline industry, the employee involved will be
    removed from service immediately, and those involved in witnessing the
    event, upon request, shall be relieved as soon as feasible.
        The railroads are a mixed bag in dealing with this problem--some do
    a decent job, while others act as if no problem exists.
    Additional Safety Inspectors and User Fees
        In 1977 the FRA issued a comprehensive 5-year plan for attacking
    the safety problems in the rail industry. In the proposal entitled
    ``Safety System Plan, September 1977,'' the FRA stated that 800 safety
    personnel were necessary at the agency. As testified by FRA
    Administrator Boardman on 1/30/07 in the House the total inspection
    staff today is 400. The number of miles of track in operation are
    greater than in 1977 (173,000 in 1977 and 219,000 today); over 1.6
    million locomotives and cars in operation today vs. 1.7 million freight
    cars and 33,000 locomotives in 1977.
        It should be kept in mind that, as noted by the GAO testimony on 1/
    30/07, FRA today is only able to inspect 0.2 percent of the railroads
    operations each year. Also, in a recent report by the GAO entitled RAIL
    SAFETY ``The Federal Railroad Administration is Taking Steps to Better
    Target its Oversight, but Assessment of Results is Needed to Determine
    Impact'' (Jan. 2007), it stated at p. 57:

            ``FRA inspectors cite many defects, but cite comparatively few
            of these defects as violations warranting enforcement action.
            Since 1996, FRA inspectors have cited an average of about 4
            violations for every 100 defects cited annually. According to
            FRA officials, inspectors cite relatively few defects as
            violations warranting enforcement action because FRA's focused
            enforcement policy guides inspectors to cite violations only
            for problems that pose safety risks. In addition, inspectors
            have discretion in citing a defect or a violation for a given
            instance of noncompliance--FRA directs inspectors to first seek
            and obtain the railroad's voluntary compliance with the rail
            safety regulations.''
    Warning in Non-Signaled Territory
        The NTSB recommendation in its report of the Graniteville, SC
    accident which occurred on Jan. 6, 2005 seeks to rectify a nationwide
    problem in non-signaled territory to protect against a misaligned
    switch. This is long overdue. There should be visual or electronic
    warning to crews to clearly convey the status of a switch, so that a
    train can safely stop if the switch is misaligned.
    Seniority for Workers Seeking Federal Employment
        Many very qualified employees have refused Federal employment
    because of the current restrictions which require the person to give up
    his/her seniority in the railroad industry. This creates a penalty upon
    the employee without any benefit to the public or the government. An
    employee of the Federal Government, who previously was a railroad
    employee covered under a collective bargaining agreement, should have
    the right to return to the craft or class on the carrier with which he/
    she was employed. If he/she returns to the railroad industry, such
    employee should be placed in his/her former position and retain all
    prior seniority and accrue seniority with said carrier from the date
    the employee became an employee of the said Federal agency. The
    employee should also continue to accrue all rights and benefits under
    the applicable collective bargaining agreement during the time he/she
    held a position with the Federal Government.
                                  Attachment 2
        Prepared Statement of W. Dan Pickett, International President,
          Brotherhood of Railroad Signalmen before the U.S. House of
       Representatives, Committee on Transportation and Infrastructure,
                           Subcommittee on Railroads
    February 13, 2007
        Good Morning. I would like to thank Ms. Corrine Brown, Chairperson
    and Members of the Committee. It is an honor for me to testify today on
    fatigue in the rail industry, a subject of great concern to this
    country and to all employees of the Nation's railroads.
        My name is Dan Pickett, and I am the International President of the
    Brotherhood of Railroad Signalmen. The Brotherhood of Railroad
    Signalmen (``BRS''), a labor organization with headquarters at 917
    Shenandoah Shores Road, Front Royal, Virginia, 22630-6418, submits the
    following comments concerning fatigue in the rail industry.
        BRS, founded in 2001, represents approximately 9,000 members
    working for railroads across the United States and Canada. Signalmen
    install, maintain and repair the signal systems that railroads utilize
    to direct train movements. Signalmen also install and maintain the
    grade crossing signal systems used at highway-railroad intersections,
    which play a vital role in ensuring the safety of highway travelers.
    Throughout our entire existence, the BRS has dedicated itself to making
    the railroad workplace safer, not just for rail workers, but also for
    the public at large.
        Before any discussion of fatigue in the rail industry can even
    begin, it should be noted that the rail industry is moving more freight
    with fewer employees than at any time in the history of railroading.
    This is a critical point that must be acknowledged. Through mergers and
    railroad managements' never ending quest to eliminate workers, railroad
    staffing levels are at an all time low and continue to drop. Those
    railroad employees that are left are working longer hours for many days
    at a stretch. A 12 to 16 hour day is not unusual for a railroad worker
    and in many cases it is the norm. Railroads are abusing the very asset
    that is their most important resource.
        The BRS seeks to amend the Hours of Service Act for signalmen.
    Currently the Hours of Service Act (HOS) allows individuals performing
    signal duties to work 12 hours in a 24 period with an emergency clause
    provision that allows for an additional 4 hours-of-service in a 24-hour
    period. The BRS seeks to eliminate the 4 hour emergency provision due
    to the abuse by the railroad industry.
        When the HOS Act was expanded to include signalmen in 1976, it was
    envisioned and intended to be a 12-hour law. It should be noted that is
    how the railroads originally applied the law. If signal personnel
    needed additional time to correct a signal problem they would inform
    their lower lever supervisor that they were approaching the 12-hour
    limit of the HOS Act and the supervisor would make a decision based on
    their experience if the individual could finish the work within 12
    hours, or if another signal employee would be called to finish the
    repair work. However, through gradual ``creep'' by the railroads the
    law has become a 16-hour law. Most, if not all, Class I railroads have
    issued instructions to signal personnel that ``everything'' is an
    ``emergency'' and it is not necessary to call anyone. When the law was
    new, it worked well, and for years the railroads limited signal workers
    to 12 hours of work in a 24-hour period. Now however, signal employees
    have seen the law mutate into a 16-hour law. Many railroads have
    official or unofficial policies that state that any signal problem is
    an ``emergency'' and workers need not contact their supervisors for an
    interpretation.
        Signal employees are instructed to work up until the 16-hour limit
    before they call for any relief personnel. In some cases, the railroads
    authorize outright violation of the HOS Act and order signal employees
    to continue working until they are finished with the repair work. That
    is why it is necessary to remove the four-hour emergency provision in
    its entirety. This discretion combined with the railroads tendency to
    push the limits of the law have morphed the HOS Act and is contrary to
    the intentions of the 1976 Congress.
        Of even greater concern is when a BRS member can work 20 hours in a
    24-hour period without adequate rest. For example: On Day 1 a signalmen
    goes to sleep at 21:00 and awakens at 05:00 to arrive for his regular
    shift on Day 2 at 07:00 to 15:00. Under the current law at 15:00 p.m.
    his ``rest'' period starts. At 23:00 he is considered fully rested and
    a new 24-hour clock begins. In many cases it is highly likely that he
    may have just gone to sleep at 22:00. After less than 2 hours of sleep
    he then receives a call to work at 00:00 a.m. on Day 3. He works 4
    additional hours and is finished with the trouble call at 04:00. He
    then travels home and then has to return to work for his regular shift
    of 07:00 to 15:00. The cumulative effect of the law on the individual
    is that he is allowed to work a total of 20 hours-of-service within a
    32-hour period. While the employee has had 12 hours off, he has gotten
    virtually no sleep.
        This situation is exasperated further when railroads then require
    signal personnel to work an additional 4 hours under the emergency
    provision. Additionally, if an ``emergency'' occurs at the end of his
    shift, the railroad could require him to work an additional 4 hours
    from 15:00 until 19:00. The cumulative effect of the law on the
    individual would now be that he is allowed to work a total of 24 hours-
    of-service within a 40-hour period with virtually no sleep. This type
    of work schedule is a recipe for disaster. This is especially true when
    you consider that after being off-duty for a period of 10 hours, 2
    hours which are spent traveling to and from work, the signal employee
    has to return to work for his regular shift at 07:00 and can then work
    another 16 hours before he is entitled to another rest period. It is
    possible that after waking at 05:00 on Day 2, a signal employee may get
    only 8 hours of actual sleep in a 66-hour period. See Appendix A for
    further explanation of this scenario.
        The BRS asks that the Hours of Service Act be amended to require
    that employees performing signal work receive at least 8 hours of
    actual rest during a 24 hour period. What drives our request is the
    fact that many, if not all, of the railroads willfully abuse the HOS
    Act. For example, when the railroad receives emergency calls (prior to
    the end of the 8 hours of required rest) they will delay calling signal
    personnel until 8 hours have passed since the end of their scheduled
    shift or their last additional duty so that they can start a new 24-
    hour clock. This is unacceptable. The railroads are aware that the
    signal personnel have probably not received adequate rest. All the
    railroads care about is getting a new 24-hour clock started so that
    they can work the individual 12 to 16 additional hours.
        Chairman Oberstar, you have gone on the record saying, ``In
    previous Congresses, I have introduced legislation to strengthen hours-
    of-service. The railroads fought against it, stating that hours-of-
    service should be a dealt with at the collective bargaining table. I
    believe that the safety of railroad workers and the safety of the
    general public which all too often are the victims in these train
    accidents, should not be relegated to a negotiation agreement between
    management and labor. This Congress has a responsibility to prevent
    fatigue.''
        Chairlady Brown, I could not agree more. As explained in my earlier
    testimony, the railroads have manipulated a 12-hour Congressional Hours
    of Service Act into a 16-hour law. In fact the situation is even worse
    in the industry than what I have explained so far. The Brotherhood of
    Railroad Signalmen is currently engaged in National Negotiations with
    the railroads to reach a new agreement over wages, benefits and work
    rules. The railroads have targeted the employees I represent during
    these negotiations. The railroads want work rule provisions that allow
    them to subcontract our safety-sensitive signal work to the lowest
    bidder. While I will not go into the inherent degradation of safety by
    having untrained and unskilled contractors performing signal work I
    will explain one of the main reasons that the railroads want to
    subcontract this work. Contractors are not covered by the Hours of
    Service Act. I will repeat this. Contractors are not covered by the
    Hours of Service Act. If the railroads persevere in this pursuit they
    will have found away to supercede the intent of Congress by employing
    individuals to perform safety-sensitive signal work who do not have to
    comply with the provisions of the Hours of Service Act.
        They will be able to hire contractors who can work an unlimited
    number of continuous hours performing safety sensitive signal work.
    While the railroad owners say that they are trying to find ways to
    combat fatigue in the railroad industry, the reality is they are trying
    to find ways to supercede the safety provisions contained in the Hours
    of Service Act.
        The inability to perform adequate testing and the failure to comply
    with minimum Federal regulations have contributed, if not caused many
    recent railroad accidents. In their never ending zeal to focus on the
    financial bottom line, railroads have allowed staffing levels to fall
    below the minimum needed to perform basic safety functions.
    Additionally the railroads are not through with their desire to further
    reduce manpower levels. The railroads are currently pushing very hard
    to reduce train crew size to a single person, and the implementation of
    Remote-Control-Locomotives (RCL) is proliferating as I speak here
    today.
    Training and Education
        Training and education is another key preventive measure that needs
    to be considered. Rail labor considers it equally important to provide
    Advanced Training to improve the skills of the professional men and
    women that install and maintain safety systems for the rail industry.
    This is an area that will increase productivity, improve safety and
    reduce fatigue. A signal employee that receives advanced and recurrent
    training is a more productive employee who can solve the emergency
    problems that they encounter in less time than one who is lacking the
    necessary skills.
        Often signal problems are caused by a signal appliance indicating
    that a rail is broken or a switch is not properly aligned or a track is
    flooded. A signalman must know the action to take to provide safety for
    the public and the rail carrier before considering how to repair the
    problem.
        By being more efficient, the trained signal employee spends less
    time in the field and therefore encounters less fatigue. Rail labor
    will continue to work to implement training provisions which were
    agreed to by the industry--but to date have not been implemented on
    many of our Nation's railroads.
    Conclusion
        There is little question that more must be done to eliminate
    fatigue in the rail industry in general and to signal employees
    specifically. Signalmen install, maintain and repair the signal systems
    that railroads utilize to direct train movements. Signalmen also
    install and maintain the grade crossing signal systems used at highway-
    railroad intersections. As such it is in the best interest of the
    traveling public and the employees that work for the railroad that
    Congress act to solve the problem of fatigue for signalmen in the rail
    industry.
        An adequately staffed signal department of well-trained, well-
    rested signalmen is needed to make the critical safety-sensitive
    decisions that are a routine part of their daily duties. Signal
    employees often work alone in the worst weather conditions in some of
    the most demanding terrain and it is imperative that these workers have
    the opportunity to perform their duties after receiving adequate rest.
        There is much to accomplish to eliminate fatigue in the rail
    industry in order to make the Nation's railroads safer for communities
    across the country and for the employees of the railroads. Experience
    teaches us that it is Congress that must provide the leadership to make
    safety a reality. I hope we can work together to see that improved
    safety practices become a reality.
        On behalf of rail labor and the Brotherhood of Railroad Signalmen I
    appreciate this opportunity to testify before the Committee. At this
    time I would be more than pleased to answer any questions.
                                   Appendix A

    ------------------------------------------------------------------------
         Day 1             Day 2              Day 3              Day 4
    ------------------------------------------------------------------------
    00:00            00:00 sleep        00:00 emergency    00:00 sleep
                                         call
    01:00            01:00 sleep        01:00 emergency    01:00 sleep
                                         call
    02:00            02:00 sleep        02:00 emergency    02:00 sleep
                                         call
    03:00            03:00 sleep        03:00 emergency    03:00 sleep
                                         call
    04:00            04:00 sleep        04:00 travel home  04:00 sleep
    05:00            05:00 wake for     05:00 off duty     05:00 wake for
                      work                                  work
    06:00            06:00 travel to    06:00 travel to    06:00 travel to
                      work               work               work
    07:00            07:00 regular      07:00 regular      07:00 regular
                      work               work               work
    08:00            08:00 regular      08:00 regular      08:00 regular
                      work               work               work
    09:00            09:00 regular      09:00 regular      09:00 regular
                      work               work               work
    10:00            10:00 regular      10:00 regular      10:00 regular
                      work               work               work
    11:00            11:00 regular      11:00 regular      11:00 regular
                      work               work               work
    12:00            12:00 regular      12:00 regular      12:00 regular
                      work               work               work
    13:00            13:00 regular      13:00 regular      13:00 regular
                      work               work               work
    14:00            14:00 regular      14:00 regular      14:00 regular
                      work               work               work
    15:00            15:00 regular      15:00 regular      15:00 regular
                      work               work               work
    16:00            16:00 off duty     16:00 emergency    16:00 emergency
                                         call               call
    17:00            17:00 off duty     17:00 emergency    17:00 emergency
                                         call               call
    18:00            18:00 off duty     18:00 emergency    18:00 emergency
                                         call               call
    19:00            19:00 off duty     19:00 emergency    19:00 emergency
                                         call               call
    20:00            20:00 off duty     20:00 off duty/    20:00 emergency
                                         travel             call
    21:00 sleep      21:00 off duty     21:00 sleep        21:00 emergency
                                                            call
    22:00 sleep      22:00 off duty     22:00 sleep        22:00 emergency
                                                            call
    23:00 sleep      23:00 off duty     23:00 sleep        23:00 emergency
                                                            call
    ------------------------------------------------------------------------

        In the above scenario, after waking at 05:00 on day two, a signal
    employee can be awake for 40 continuous hours; traveling to, or working
    30 of those 40 hours, then after ``receiving'' 10 hours of rest (of
    which the actual sleep may only be 8 hours), the signal employee could
    then work an additional 16 hours. It is possible that after waking at
    05:00 on day two, a signal employee may receive only 8 hours of actual
    sleep in a 66-hour period. The above scenario would be in total
    compliance with the Hours of Service Act, as currently written,
    pertaining to employees who perform signal service.

        Senator Lautenberg. Thank you, Mr. Wytkind. I regret that I
    didn't note that you were the President of the Transportation
    Trades Department of the AFL-CIO.
        We have with us Ed Hamberger, President and CEO of the
    Association of American Railroads and Mr. Richard F. Timmons,
    President and Treasurer of the American Short Line and Regional
    Railroad Association. And I thank you all. And now if you
    would, Mr. Hamberger, please proceed.

         STATEMENT OF EDWARD R. HAMBERGER, PRESIDENT AND CEO,
                   ASSOCIATION OF AMERICAN RAILROADS

        Mr. Hamberger. Thank you, Mr. Chairman. I appreciate the
    opportunity to be here to address rail safety and at the outset
    let me emphasize that the rail industry's safety record is
    excellent and getting better.
        Since 1980, the train accident rate is down 69 percent. The
    employee casualty rate is down 81 percent and the highway-rail
    grade crossing incident rate is down 76 percent. The employee
    accident rate and the grade crossing accident rate in 2006 were
    the best ever in this industry. And the train accident rate was
    just fractionally higher than the record low set a few years
    ago.
        And as you pointed out, Mr. Chairman, this is occurring at
    a time when traffic is growing exponentially. And at a time, as
    Mr. Wytkind points out, where we have new employees coming into
    the industry. Which must mean that we are doing one heck of a
    job of training these new employees and integrating them into
    our workforce, if we are able to set these record levels of
    safety.
        Senator Smith asked where the industry stands in respect to
    other transportation industries. In my written statement the
    U.S. Department of Labor data indicate that railroads today
    have lower employee injury rates than other modes of
    transportation including air and truck and most other major
    industry groups and below all private industry. So in fact, we
    are one of, if not the safest industry in the country.
        Having said that, there's obviously still work to be done.
    One key way to improve safety is to upgrade the quality of the
    infrastructure, as you have pointed out, Mr. Chairman. And the
    facts are that railroads are investing now more in their
    infrastructure than ever before. Last year we put a record $8.6
    billion into capital expenditures for upgrading tracks and
    signals, new freight cars and new locomotives. This year the
    industry plan is to invest even more, a record $9.4 billion in
    capital expenditures to make us more efficient and safer.
        And I emphasize that that is just CapEx. We spend an equal
    amount of money on maintenance capital to maintain the system
    that's already there. Part of this investment is dedicated to
    technology which is playing a major role in making railroads
    safer.
        For example wheel profile monitors that use lasers and
    optics to capture images of wheels as the car is moving by
    signaling that a wheel set needs to be changed before an
    accident can occur. Similarly rail defect detector cars use
    laser technology to detect internal rail flaws before a broken
    rail can cause an accident.
        Railroads are also moving forward with advanced train
    control systems that can help prevent accidents by
    automatically stopping or slowing trains before they exceed
    their authority. These systems are complex and must include
    reliable technology to warn locomotive engineers of a potential
    problem; and then be able to take action, if necessary,
    independent of the engineer to prevent the accident from
    occurring. We are committed to the development and
    implementation of this technology where it is appropriate and
    at a pace permitted by available funds.
        We continue to seek other ways to improve safety. And one
    issue of particular concern is fatigue. It is not in the
    railroad's best interest to have employees who are too tired to
    perform their duties properly. Consequently, individual
    railroads are pursing a variety of fatigue countermeasures
    based on what they have found to be most effective for their
    particular operating environments. And our data indicate that
    83 percent of rail employees work less than 200 hours a month;
    95 percent work less than 250 hours a month.
        You heard from the NTSB that the maximum number in the
    maritime industry is 360, for truckers it's 350. We have
    proposed in legislation on the House side to cap the number of
    hours at 276, well below either of those industries and well
    below the current statutory allowance. I would hope that rail
    labor would join us in that statutory cap. We are amenable to
    examining the Hours of Service Act. I have made those
    suggestions in my written testimony.
        And let me close by addressing hazmat transportation. Each
    year railroads move up to 1.8 million carloads of hazardous
    materials with extraordinary safety, some 99.997 percent of all
    cars moving from origin to destination without any release of
    material due to a train accident. The biggest concern, of
    course, lies with the subset of hazmat known as Toxic
    Inhalation Hazards, or TIH. Each year railroads move about
    100,000 carloads of TIH.
        The Federal Government requires railroads to transport
    these materials whether the railroad wants to or not. Without
    that common carrier obligation I believe that some railroads
    would not transport TIH materials because of the potentially
    ruinous claims that could arise from a catastrophic event. The
    current environment for the rail transportation of TIH is
    untenable.
        We are asking Congress to consider legislation similar to
    the Price-Anderson Act governing the nuclear industry. It is
    impossible to carry enough insurance to cover a widespread
    catastrophic event. Without a statutory cap on liability each
    train carrying TIH material is literally a bet-the-company
    event. Without such legislation, railroads would be forced to
    consider the option of seeking to remove the common carrier
    obligation to haul TIH.
        In the meantime we have implemented new standards for tank
    cars carrying chlorine and anhydrous ammonia effective January
    1, 2008. We also support the accelerated development and use of
    inherently safer technologies as substitutes for toxic
    inhalation hazard materials. Product substitution has been
    endorsed by both the National Research Council and the
    Government Accountability Office.
        Let me reiterate that safety is our top priority and we
    believe that shows through our ever improving safety record. We
    are committed to working with you, others in Congress, our
    employees and our customers to ensure that rail safety
    continues to improve. Thank you.
        [The prepared statement of Mr. Hamberger follows:]

         Prepared Statement of Edward R. Hamberger, President and CEO,
                       Association of American Railroads
        On behalf of the members of the Association of American Railroads
    (AAR), thank you for the opportunity to address rail safety. AAR
    members account for the vast majority of freight railroad mileage,
    employees, and traffic in Canada, Mexico, and the United States.
    Overview of Rail Safety
        For railroads, pursuing safe operations is not an option, it is an
    imperative. It makes business sense and it's the right thing to do.
    Through massive investments in safety-enhancing infrastructure,
    equipment, and technology; extensive employee training; cooperation
    with labor, suppliers, customers, communities, and the Federal Railroad
    Administration (FRA); cutting-edge research and development; and
    steadfast commitment to applicable laws and regulations, railroads are
    at the forefront of advancing safety.
        The overall U.S. rail industry safety record is excellent. As an
    FRA official noted in February 2007 testimony to Congress, ``The
    railroads have an outstanding record in moving all goods safely.'' Rail
    safety continues to improve. In fact, in aggregate 2006 was the safest
    year for railroads ever. According to FRA data, the rail employee
    casualty rate in 2006 was the lowest in history, having fallen 81
    percent since 1980. Likewise, the grade crossing collision rate in 2006
    was the lowest ever, having fallen 76 percent since 1980. And from 1980
    to 2006, railroads reduced their overall train accident rate by 69
    percent. The train accident rate in 2006 was just fractionally higher
    than the record low.

        Decades ago, railroads were among the most dangerous industries to
    work for. That's no longer true. In fact, according to U.S. Department
    of Labor data, railroads today have lower employee injury rates than
    other modes of transportation and most other major industry groups,
    including agriculture, construction, manufacturing, and private
    industry as a whole. Available data also indicate that U.S. railroads
    have employee injury rates well below those of most major foreign
    railroads.

        Railroads are proud of their safety record, which results from
    railroads' recognition of their responsibilities regarding safety and
    the enormous resources they devote to its advancement. At the same
    time, railroads want rail safety to continue to improve. Railroads are
    always willing to work cooperatively with you, other policymakers, the
    FRA, rail employees, and others to find practical, effective ways to
    make this happen.
        A commitment to safety that permeates the workplace is critical to
    promoting safety. Railroads have that commitment. But a healthy balance
    sheet is important to safety as well. A financially-viable railroad
    will be in a much better position to invest in safety enhancements
    (e.g., heavier rail, newer freight cars and locomotives, technology
    R&D, more sophisticated training, and so on) than a financially-weak
    carrier. The record investments that railroads have made in their
    infrastructure, equipment, and technology in recent years have made
    railroads much safer, and these investments were made possible by the
    moderate improvements in profitability that railroads have enjoyed.
    Consequently, legislative or regulatory actions that created
    significant new spending requirements and/or unduly restricted rail
    earnings could have unintended negative safety consequences in addition
    to negative capacity, efficiency, and service reliability consequences.
        Of course, no budget is unlimited, even for something as important
    as safety and even for railroads that have experienced financial
    improvement in recent years. Safety will not be advanced if resources
    are spent on programs that do little to improve safety or if unfunded
    mandates lock up resources that would have a more significant impact on
    safety if spent elsewhere. Unnecessary and unfunded mandates would also
    serve to increase the cost of rail service and drive more traffic to
    the highways, where the safety record is far less favorable than it is
    on the rails.
        Below I will discuss several important topics associated with rail
    safety, discuss ways that railroads are working to advance safety in
    those areas, and discuss steps that we believe policymakers should take
    (or not take) to promote rail safety.
    Role of Technology
        Technology plays a crucial role in rail safety. Much of this
    technology has been (or is being) developed and/or refined at the
    Transportation Technology Center, Inc. (TTCI) in Pueblo, Colorado. A
    wholly-owned subsidiary of the AAR, TTCI is the world's finest rail
    research facility. Its 48 miles of test tracks, highly sophisticated
    testing equipment, metallurgy labs, simulators, and other diagnostic
    tools are used to test track structure, evaluate freight car and
    locomotive performance, assess component reliability, and much more.
    The facility is owned by the FRA but has been operated (under a
    competitively-bid contract with the FRA) by TTCI--which is responsible
    for all of its operating costs and some of its capital costs--since
    1984. The rail industry is pleased that some members of this committee
    have had the opportunity to see TTCI in person, and I extend an open
    invitation to others in Congress, especially new members of this
    committee, to visit the facility when they can.
        Just a few of the many technological advances that contribute to
    improved rail safety are described below. Many of these advances are
    preventive, designed to help protect freight cars, locomotives, track,
    and cargo before accidents or damage occurs.

       Wayside detectors identify defects on passing rail cars--
            including overheated bearings and wheels, dragging hoses,
            deteriorating bearings, cracked axles and wheels, and
            excessively high and wide loads--before structural failure or
            other damage occurs. Some of the newest wayside detectors use
            machine vision to perform higher-accuracy inspections through
            the use of digitized images. Tests at TTCI have revealed that
            it is possible to inspect wheels of moving trains using
            ultrasonic probes. Further tests of this system are underway,
            as are tests on ways to better understand and prevent axle
            fatigue.

       Wheel profile monitors use lasers and optics to capture
            images of wheels. The images show if wheel tread or flanges are
            worn and, consequently, when the wheels need to be removed from
            service before they become a problem.

       Trackside acoustic detector systems use ``acoustic
            signatures'' to evaluate the sound of internal bearings to
            identify those likely to fail in the near term. These systems
            supplement or replace existing systems that identify bearings
            already in the process of failing by measuring the heat they
            generate. This technology allows bearings to be replaced before
            they overheat and fail.

       Wheels constructed with stronger micro-alloy metals that
            resist damage and withstand higher service loads are being
            developed.

       Advanced track geometry cars use sophisticated electronic
            and optical instruments to inspect track conditions, including
            alignment, gauge, and curvature. TTCI is developing an on-board
            computer system that provides an even more sophisticated
            analysis capability of track geometry, predicting the response
            of freight cars to track geometry deviations. This information
            helps railroads determine track maintenance needs.

       Improved metallurgy and premium fastening systems have
            enhanced track stability, reducing the risk of track failure
            leading to derailments.

       Rail defect detector cars are used to detect internal rail
            flaws. The AAR and the FRA have jointly funded a Rail Defect
            Test Facility at TTCI that railroads and suppliers use to test
            improved methods for detecting rail flaws. In 2005, the
            capabilities of a prototype of the world's first laser-based
            rail inspection system were tested at TTCI. It is now being
            demonstrated in revenue service.

       Ground-penetrating radar and terrain conductivity sensors
            are being developed that will help identify problems below the
            ground (such as excessive water penetration and deteriorated
            ballast) that hinder track stability.

       Major U.S. railroads are deploying remote control locomotive
            technology (RCL) to improve rail safety. RCL allows rail
            personnel on the ground to operate and control locomotives in
            rail yards through the use of a hand-held transmitter that
            sends signals to a microprocessor on board a locomotive. In a
            March 2006 report, the FRA found that ``[e]mployee injury rates
            were approximately 20 percent lower for RCL operations than for
            conventional switching operations . . .''

       Electronically-controlled pneumatic (ECP) brakes are being
            tested in revenue service. In an ECP braking system, an
            electronic signal applies the brakes on each car in a train
            almost instantaneously, resulting in a much shorter stopping
            distance, reduced slack, and improved train control. (The
            standard air brake system in use today sends an air pressure
            signal for cars to brake, slowing the cars one-by-one as the
            air pressure moves from car to car.) The FRA recently announced
            its intent to issue a notice of proposed rulemaking later this
            year to revise the Federal brake system safety standards to
            encourage railroads to invest in and deploy ECP brake
            technology.

       Because a relatively small percentage of freight cars (so-
            called ``bad actors'') can cause an inordinately high
            percentage of track damage and have a much higher than typical
            propensity for derailment, TTCI is working on ways to identify
            poorly performing freight cars as they pass across truck
            performance detectors and hunting detectors.\1\
    ---------------------------------------------------------------------------
        \1\ In terms of rail cars, ``truck'' refers to the complete four-
    wheel assembly that supports the car body. ``Hunting'' is an
    instability, more prevalent at higher speeds, that causes a rail car to
    weave down a track, usually with the flange of the wheel striking the
    rail.

       Much of the research underway regarding track and
            infrastructure is related to heavy-axle load (HAL) service,
            which entails the use of heavier (and often longer) trains.
            HAL-related work is underway on rail steels, insulated joints,
    ---------------------------------------------------------------------------
            bridges, welding, specialized track components, and more.

       Tank car enhancements have helped railroads reduce the
            overall rail hazardous materials accident rate by 86 percent
            since 1980 and by 28 percent since 1990, and railroads are
            constantly investigating ways to further enhance tank car
            safety. Hazmat safety will be discussed in much more detail
            below.

       Advanced fault detection systems monitor critical functions
            on locomotives. State-of-the-art locomotives today can have 20
            or more sophisticated microprocessors that measure and check
            several thousand characteristics of locomotives and their
            operation.

       Railroads are constantly expanding their use of state-of-
            the-art global positioning systems, wireless technologies, and
            other communications advances.

       The Integrated Railway Remote Information Service
            (InteRRIS), an advanced Internet-based data collection system
            with wide potential applicability, is under development at
            TTCI. An early project using InteRRIS collects data from wheel
            impact detector systems (which identify wheel defects by
            measuring the force generated by wheels on tracks) and
            detectors that monitor the undercarriage of rail cars (which
            identify suspension systems that are not performing properly on
            curves) along railroad rights-of-way. InteRRIS processes the
            information to produce vehicle condition reports. These allow
            equipment which is approaching an unsafe condition to be
            removed from service and repaired before an accident occurs.

        Many of the technological advances mentioned above have been
    incorporated in the rail industry's Advanced Technology Safety
    Initiative (ATSI). ATSI has already improved safety. For example,
    preliminary data indicate that the rate of main track broken rail and
    broken wheel accidents per million freight train-miles in the 29 months
    following the October 2004 implementation of ATSI was more than 7
    percent below that of the comparable 29-month period prior to
    implementation.
    Train Control Technology
        Class I railroads are now developing and testing train control
    systems that, in certain circumstances, can help prevent accidents by
    automatically stopping or slowing trains before they encounter a
    dangerous situation. Through predictive enforcement, train control
    technologies could significantly reduce the incidence of train
    accidents caused by human error, especially train collisions and
    derailments due to excessive speed.
        Train control systems are extremely complex. At a minimum, they
    must include reliable technology to inform dispatchers and operators of
    a train's precise location; a means to warn operators of actual or
    potential problems (e.g., excessive speed); and a means to take action,
    if necessary, independent of the train operator (e.g., stop a train
    before it reaches the physical limits of its operating authority or
    allowed speed). Some systems will also include additional features,
    such as expanding the ability to monitor the position of hand-operated
    switches. Perhaps the most critical element is sophisticated software
    capable of accommodating all of the variables associated with rail
    operations. When successfully implemented, these enhanced train control
    capabilities will enable trains to operate more safely than trains
    operate today.
        Major railroads are engaged in various ongoing projects to test
    elements of this new technology. For example, BNSF has done extensive
    and successful pilot testing of its version of train control
    (Electronic Train Management System--ETMS) in Illinois and elsewhere.
    BNSF recently received final approval from the FRA to implement the
    technology on lines elsewhere on its system. Other train control
    projects in progress include CSX's Communications-Based Train
    Management (CBTM) system, Norfolk Southern's Optimized Train Control
    (OTC) system, and Union Pacific's Communications-Based Train Control
    (CBTC) system.
        Implementing advanced train control technology will require
    significant capital investments in wireless networks; sophisticated
    location determination systems; highly reliable software; and digital
    processors onboard locomotives, in dispatching offices and, for some
    systems, along tracks. Railroads are committed to the development and
    implementation of train control technology where it makes sense to do
    so and at a pace that can be justified by available funds.
    Hazmat Transport by Rail
        Each year, 1.7 to 1.8 million carloads of hazardous materials
    (``hazmat'') are transported by rail in the United States, with two-
    thirds moving in tank cars. ``Toxic inhalation hazards'' (TIH)--gases
    or liquids, such as chlorine and anhydrous ammonia, that are especially
    hazardous if released--are a subset of hazardous materials and are a
    major (though not exclusive) focus of hazmat-related rail safety
    efforts. Each year, railroads transport around 100,000 carloads of TIH,
    virtually all in tank cars.
        Railroads recognize and deeply regret the occurrence of a few
    tragic accidents involving hazardous materials over the past couple of
    years. Nevertheless, the rail hazmat safety record is extremely
    favorable. In 2005 (the most recent year for which data are available),
    99.997 percent of rail hazmat shipments reached their final destination
    without a release caused by an accident. Railroads reduced hazmat
    accident rates by 86 percent from 1980 through 2005.
        Still, no one disputes that efforts should be made to increase
    hazmat safety and security where practical. Railroads understand this
    better than anyone. Today, the Federal Government, through the
    railroads' common carrier obligation, requires railroads to transport
    highly-hazardous materials, whether railroads want to or not. Unlike
    firms in other industries, including other transportation companies,
    railroads today have not been able to ``just say no'' to entering into
    a business relationship with consumers or manufacturers of these
    materials.
        Absent railroads' common carrier requirement, many railroads would
    not transport these materials because of the potentially ruinous claims
    that could arise in the event of a catastrophic accident involving a
    release of these materials. Indeed, while accidents involving highly-
    hazardous materials on railroads are exceedingly rare, history
    demonstrates that railroads can suffer multi-billion dollar judgments,
    even for accidents where no one gets seriously hurt and the railroads
    do nothing wrong. Drunk drivers, impatient motorists driving around a
    grade crossing gate or ignoring a signal at a grade crossing, faulty
    repairs by the owner of a tank car, and pranksters--not terrorists--
    have caused incidents that could have been disastrous if they had
    involved the release of these materials.
        Some years ago in New Orleans, a tank car that railroads did not
    own containing more than 30,000 gallons of liquid butadiene began to
    leak. Vapor from the butadiene tank car rolled out across a
    neighborhood until the pilot light of an outdoor gas water heater
    ignited it. More than 900 people were evacuated, but no serious
    injuries or fatalities occurred. The National Transportation Safety
    Board found that the probable cause of the accident was an improper
    gasket that a chemical company had installed on the tank car.
    Nevertheless, a state court jury entered a punitive damages verdict
    against the railroads involved in the amount of $2.8 billion.
        In essence, the transport of highly-hazardous materials is a ``bet
    the business'' public service that the government forces railroads to
    perform.
        Railroads face these huge risks for a tiny fraction of their
    business. In 2005, railroads moved just over 100,000 TIH carloads and
    nearly 37 million total carloads. Thus, shipments of TIH constituted
    only about 0.3 percent of all rail carloads. The revenue that highly-
    hazardous materials generate does not come close to covering the
    potential liability to railroads associated with this traffic.
    Moreover, the insurance industry is unwilling to fully insure railroads
    against the multi-billion dollar risks associated with highly-hazardous
    shipments. And even though TIH accounts for a tiny fraction of rail
    carloads, it contributes approximately 50 percent of the rapidly-rising
    overall cost of railroad insurance.
        For all these reasons, the current environment for the rail
    transportation of highly-hazardous materials, especially TIH, is
    untenable. If the Federal Government is going to require railroads to
    transport highly-hazardous materials, it must address the ``bet the
    company'' risk it forces railroads to assume.
        Congress can address this inequity in one of at least three ways.
    First, Congress could create a statutory liability cap for freight
    railroads similar to the one that applies to Amtrak. Amtrak's total
    liability for all claims, including punitive damages, from a single
    accident--regardless of fault--is capped at $200 million. Congress
    could enact a similar type of cap on the liability a freight railroad
    would incur from an accident involving highly-hazardous materials,
    regardless of fault, with the government paying liabilities in excess
    of the cap.
        Second, Congress could enact a Price-Anderson type solution. Price-
    Anderson limits a company's liability from an incident involving the
    release of nuclear material (including in transportation) and provides
    for a fund, to which all owners of nuclear power plants contribute when
    an incident occurs, to cover damages exceeding that limit. Under a
    similar rail proposal, railroads would be liable for a defined amount
    of damages arising from a rail accident involving highly-hazardous
    materials. In the event of an accident, damages above that defined
    amount would be paid from a fund to which producers and end-users of
    these materials would contribute.
        The main purpose of such legislation would be to cap the railroad's
    liability for claims, while still ensuring compensation for the general
    public. However, it also seeks to balance the societal need to
    compensate the injured and damaged with the need for any railroad
    involved to be able to continue to operate and remain viable.
        Both of these proposals leave railroads with substantial liability.
    Both are also reasonable, given railroads' federally-imposed common
    carrier obligation and the fact that accidents occur even when
    railroads operate carefully and safely. Under either proposal, limiting
    freight railroads' liability from an accident involving highly-
    hazardous materials would reduce railroads' risk exposure. It would
    also bring certainty to the insurance market. Hopefully, more insurance
    companies would again be willing to offer railroads coverage.
        Absent these two alternatives, Congress should relieve railroads of
    their common carrier obligation to haul TIH and other highly-hazardous
    materials. If Congress will not provide some degree of protection from
    unlimited potential liability from transporting these materials, then
    it should not mandate that the railroads' shareholders assume that
    risk. Rather, railroads should be permitted to decide for themselves
    whether to accept, and at what price they are willing to accept, such
    materials for transportation.
    What Railroads Are Doing
        In the meantime, railroads support prompt, bold actions by all
    stakeholders to reduce the risks associated with hazmat transport.
    Railroads themselves are taking the lead:

       In December 2006, an industry committee approved a new
            standard for chlorine and anhydrous ammonia tank cars that will
            significantly reduce the risk of a release. (Anhydrous ammonia
            and chlorine combined account for around 80 percent of rail TIH
            movements.) The standard will be phased in beginning in
            2008.\2\
    ---------------------------------------------------------------------------
        \2\ The delay in implementation is due to an FRA request.

       As noted earlier, railroads help communities develop and
            evaluate emergency response plans; provide training for more
            than 20,000 emergency responders each year through their own
            efforts and the Transportation Community Awareness and
            Emergency Response Program (TRANSCAER); and support Operation
            Respond, a nonprofit institute that develops technological
    ---------------------------------------------------------------------------
            tools and training for emergency response professionals.

       Railroads work closely with chemical manufacturers in the
            Chemical Transportation Emergency Center (Chemtrec), a 24/7
            resource that coordinates and communicates critical information
            for use by emergency responders in mitigating hazmat incidents.

       Railroads participate in a variety of R&D efforts to enhance
            tank car and hazmat safety. For example, the Tank Car Safety
            Research and Test Project (which is funded by railroads, tank
            car builders, and tank car owners) analyzes accidents involving
            tank cars to help identify the causes of tank car releases and
            prevent future occurrences.

       Upon request, railroads provide local emergency response
            agencies with, at a minimum, a list of the top 25 hazardous
            materials transported through their communities. The list helps
            responders prioritize emergency response plans.

       For trains and routes carrying a substantial amount of
            highly-hazardous materials, railroads utilize special operating
            procedures to enhance safety.

       In addition to implementing their Terrorism Risk Analysis
            and Security Management Plan, railroads are working with DHS
            and the DOT to identify opportunities to reduce exposure to
            terrorism on rail property.

       Railroads offer hazmat awareness training to all employees
            who are involved in hazmat transportation. Employees
            responsible for emergency hazmat response efforts receive far
            more in-depth training.

       Railroads are pursuing a variety of technological
            advancements to enhance rail safety, including hazmat safety.

       Railroads are working with TIH manufacturers, consumers, and
            the government to explore the use of coordinated routing
            arrangements to reduce the mileage and time in transit of TIH
            movements.
    What Hazmat Manufacturers and Consumers Should Do
        Manufacturers and consumers of hazardous materials should take a
    number of steps to help ensure hazmat safety.
        First, concerted efforts should be made to encourage development
    and utilization of ``inherently safer technologies,'' which involve the
    substitution of less-hazardous materials for highly-hazardous
    materials, especially TIH, in manufacturing and other processes. As
    noted in a recent report by the National Research Council (part of the
    National Academy of Sciences), ``the most desirable solution to
    preventing chemical releases is to reduce or eliminate the hazard where
    possible, not to control it.'' Ways this can be achieved include
    ``modifying processes where possible to minimize the amount of
    hazardous material used'' and ``[replacing] a hazardous substance with
    a less hazardous substitute.'' \3\ In a similar vein, in a January 2006
    report, the Government Accountability Office (GAO) recommended that the
    Department of Homeland Security ``work with EPA to study the advantages
    and disadvantages of substituting safer chemicals and processes at some
    chemical facilities.'' \4\
    ---------------------------------------------------------------------------
        \3\ Terrorism and the Chemical Infrastructure: Protecting People
    and Reducing Vulnerabilities, National Research Council--Board on
    Chemical Sciences and Technology, May 2006, p. 106.
        \4\ Homeland Security: DHS is Taking Steps to Enhance Security at
    Chemical Facilities, but Additional Authority is Needed, Government
    Accountability Office, January 2006, p. 7.
    ---------------------------------------------------------------------------
        One real-world example of product substitution occurred at the Blue
    Plains wastewater treatment facility just a few miles from the U.S.
    Capitol. Like many wastewater treatment facilities, Blue Plains used
    chlorine to disinfect water. Not long after 9/11, the facility switched
    to sodium hypochlorite, a safer alternative.\5\
    ---------------------------------------------------------------------------
        \5\ A March 2007 GAO report lists 23 large wastewater treatment
    facilities located throughout the country that have recently converted
    or plan to convert from chlorine gas to a safer alternative. (GAO,
    Securing Wastewater Facilities: Costs of Vulnerability Assessments,
    Risk Management Plans, and Alternative Disinfection Methods Vary
    Widely, March 2007.)
    ---------------------------------------------------------------------------
        Railroads recognize that the use of TIH cannot be immediately
    halted. However, over the medium to long term, product substitution
    would go a long way in reducing hazmat risks.
        Second, manufacturers and receivers of TIH, in conjunction with
    railroads and the Federal Government, should continue to explore the
    use of ``coordination projects'' to allow TIH consumers to source their
    needs from closer suppliers. For manufacturers and users, this could
    involve ``swaps.'' For example, if a chlorine user contracts with a
    chlorine supplier located 600 miles away, but another supplier is
    located 300 miles away, the supplier located 600 miles away might agree
    to allow the closer shipper to supply the user.
        Third, hazmat consumers and manufacturers should support efforts
    aimed at increasing tank car safety and reliability. Not long ago, for
    example, the FRA, Dow Chemical, Union Pacific, and the Union Tank Car
    Company announced a collaborative partnership to design and implement a
    next-generation railroad tank car. (TTCI has been selected to support
    testing and developments initiatives related to this project.)
    What the Government Should Do
        The government too has a key role to play. First, as noted earlier,
    if the government requires railroads to transport highly-hazardous
    materials (via their common carrier obligation), it must address the
    ``bet the company'' risk this obligation forces railroads to assume.
        Second, the government should help facilitate the ``coordinated
    routing arrangements'' and ``coordination projects'' mentioned earlier.
        Third, the government should encourage the rapid development and
    use of ``inherently safer technologies'' to replace TIH and other
    highly-hazardous materials.
        Fourth, as explained in more detail below, the government should
    reject proposals that would allow state or local authorities to ban
    hazmat movements through their jurisdictions or order railroads to
    provide local authorities advance notification of hazmat movements
    through their jurisdictions. The purposes of these types of proposals
    are protection of the local populace against hazmat incidents,
    including terrorist attack (especially in perceived ``high threat''
    areas), and enhancing the ability to react more quickly to hazmat
    incidents. The proposals may be well intended, but the end result of
    their enactment on a locality-by-locality basis would likely be an
    increase in exposure to hazmat release and reduced safety and security.
    Hazmat Bans
        Banning hazmat movements in individual jurisdictions would not
    eliminate risks, but instead would shift them from one place to another
    and from one population to another. In shifting that risk, it could
    foreclose transportation routes that are optimal in terms of overall
    safety, security, and efficiency and force railroads to use less
    direct, less safe routes.
        The rail network is not similar to the highway network where there
    are myriad alternate routes. In the rail industry, rerouting could add
    hundreds of miles and several days to a hazmat shipment, and those
    extra miles and days could be on rail infrastructure that is less
    suitable (for a variety of reasons) to handling hazmat. Additional
    switching and handling of cars carrying hazmat could be needed, as
    could additional dwell time in yards. As the Department of Justice and
    DHS noted in a joint brief opposing a proposed D.C. hazmat ban, the
    increase in the total miles over which hazmat travels and the increase
    in total time in transit would ``increase their exposure to possible
    terrorist action,'' and therefore potentially reduce safety and
    security. (It has been estimated, for example, that a ban on hazmat
    transport through the District of Columbia would result in some 2
    million additional hazmat car-miles as railroads had to use circuitous
    alternative routes.) That's why the International Association of Fire
    Chiefs, among many others, has urged Congress to reject hazmat bans,
    noting that such bans ``ultimately would compromise the safe movement
    of hazardous materials.''
        If hazmat were banned in one jurisdiction, other jurisdictions
    would undoubtedly follow suit. In the wake of so far unsuccessful
    attempts by the D.C. City Council to ban hazmat movements through
    Washington, similar efforts are being discussed for Atlanta, Baltimore,
    Boston, Buffalo, Cleveland, Chicago, Las Vegas, Memphis, Philadelphia,
    Pittsburgh, and probably other cities too, as well as for all of
    California.
        An integrated, effective national network requires uniform
    standards that apply nationwide. The clarity and efficiency that
    uniformity brings would be lost if different localities and routes were
    subject to widely different rules and standards, or if local and/or
    state governments could dictate what types of freight could pass
    through their jurisdictions. The problem is especially acute for
    railroads, whose network characteristics and limited routing options
    mean that disruptions in one area can have profound impacts thousands
    of miles away. These disruptions would negatively affect all rail
    traffic, not just hazmat traffic.
        Of course, it is unlikely that cities and regions that would see
    increased hazmat traffic because of rerouting elsewhere would welcome
    the additional hazmat traffic with open arms. For example, in response
    to a proposal to reroute hazmat traffic from Washington, D.C. through
    parts of Maryland instead, the Maryland Transportation Secretary said
    that routes through his state would be ``simply unacceptable.'' A local
    Maryland official complained that rerouting would make his county ``a
    dumping ground,'' noting that ``we're not interested in playing on
    those sets of rules.''
        Finally, as the U.S. Departments of Justice, Transportation, and
    Homeland Security indicated in comments opposing the D.C. law, hazmat
    bans also unreasonably burden interstate commerce and interfere with
    Federal regulation of hazmat shipments by rail. Bans would also lead to
    more reliance on moving hazmat by trucks on busy highways.
    Hazmat Pre-Notification
        Hazmat pre-notification to local authorities is problematic for
    several reasons and may not accomplish the goals of those seeking it.
        First, upon request the rail industry already notifies communities
    of, at a minimum, the top 25 hazardous commodities likely to be
    transported through their area. In the event of a hazmat incident,
    train consists are available to emergency responders, and railroads, at
    TSA request, have agreed to provide movement data on all TIH cars.
        Second, pre-notification would vastly increase the accessibility of
    hazmat location information. Making this information more accessible
    could increase vulnerability to terrorist attack by magnifying the
    possibility that the information could fall into the wrong hands.
        Third, at any one time, thousands of hazmat carloads are moving by
    rail throughout the country, constantly leaving one jurisdiction and
    entering another. The vast majority of these carloads do not--and due
    to the nature of rail operations, cannot be made to--follow a rigid,
    predetermined schedule. The sheer quantity and transitory nature of
    these movements would make a workable pre-notification system extremely
    difficult and costly to implement, for railroads and local officials
    alike. That is why the Fire Chief of Rialto, California, commented,
    ``You'd have to have an army of people to stay current on what's coming
    through. I think it wouldn't be almost overwhelming. It would be
    overwhelming.'' The greater the number of persons to be notified, the
    greater the difficulty and cost.
        Fourth, railroads provide training for hazmat emergency responders
    in many of the communities they serve, and they already have well-
    established, effective procedures in place to assist local authorities
    in the event of hazmat incidents.
        Finally, since railroads already make communities aware of what
    types of hazardous materials are likely to be transported through their
    area and since they already provide 24/7 assistance for emergency
    responders (many of whom railroads have trained), it is not at all
    clear that information obtained by local authorities through a pre-
    notification system would improve their ability to respond to hazmat
    incidents in any meaningful way.
    Fatigue in the Rail Industry
        It is not in the best interest of railroads to have employees who
    are too tired to perform their duties properly. That's why railroads
    have long partnered with their employees to gain a better understanding
    of fatigue-related issues and find effective, innovative solutions to
    fatigue-related problems.
        Combating fatigue is a shared responsibility. Employers need to
    provide an environment that allows their employees to obtain necessary
    rest during off-duty hours, and employees must set aside time when off-
    duty to obtain the rest they need.
        Factors that can result in fatigue are multiple, complex, and
    frequently intertwined. Therefore, efforts to combat fatigue should be
    based on sound scientific research, not on anecdotes or isolated
    events. Research demonstrates that flexibility to tailor fatigue
    management efforts to address local circumstances is key. Significant
    variations associated with local operations (e.g., types of trains,
    traffic balance, and geography), local labor agreements, and other
    factors require customized measures. There is no single, easy solution
    to fatigue-related problems, especially in an industry that must
    operate 24 hours per day every day of the year, and a one-size-fits-all
    government approach is unlikely to succeed as well as cooperative
    efforts tailored to individual railroads.
        The on-duty time of rail employees involved in operating,
    dispatching, and signaling trains is governed by the Hours of Service
    Act (HSA). Under the HSA, rail conductors and engineers must go off-
    duty after 12 consecutive hours on the job, and then must have at least
    10 consecutive hours off-duty. If they go off-duty after less than 12
    hours on the job, they must have at least 8 consecutive hours off-duty.
    On-duty time starts the minute the employee reports for duty and
    includes any work that involves engaging in the movement of a train and
    transportation to a duty assignment. Off-duty time starts when the
    employee is released from duty, generally at a designated terminal or
    place of lodging. Dispatchers and signal employees have slightly
    different hours-of-service requirements.
        Individual railroads are pursuing a variety of fatigue
    countermeasures, based on what they've found to be most effective for
    their particular circumstances. Not every countermeasure is appropriate
    for every railroad, or even for different parts of the same railroad,
    because the effectiveness of various fatigue countermeasures depends on
    the circumstances unique to each railroad. Countermeasures that are
    used by one or more railroads include:

       Increasing the minimum number of hours off-duty between
            shifts.

       Implementing a morning return to work time if off work more
            than 72 hours.

       Permitting napping by train crew members under limited
            circumstances (e.g., when a train is expected to remain
            motionless for a minimum period of time).

       Encouraging sleep disorder screening.

       Improving rest-inducing standards for lodging at away-from-
            home facilities.

       Devising systems (including websites, e-mails, pagers, and
            automated telephone systems) to improve communication between
            crew callers and employees.

        Railroads and unions have also agreed, in some cases, to additional
    scheduling tools to provide for an improved opportunity for rest. They
    include:

       Enhanced emphasis on returning crews home rather than
            lodging them away from home.

       Providing more predictable calling windows and rest
            opportunities between shifts.

       Providing for a set number of days off after being available
            for a given number of days.

       Allowing employees to request an extra rest period when they
            report off-duty.

       Offering fatigue education programs for employees and their
            families, including individualized coaching to help employees
            improve their sleep habits. The rail industry is also
            developing an educational website designed solely for railroads
            and rail employees.

        The importance of education cannot be overstated, since the value
    and effectiveness of fatigue-related initiatives depends on the actions
    of employees while off-duty. Many employee actions while off-duty (for
    example, working second jobs) can contribute to fatigue, and railroads
    have little control over these actions. Employees must make proper
    choices regarding how they utilize their off-duty time, and education
    of the entire family is important in encouraging sound decisionmaking.
        Railroads support continued research on ways to fight fatigue and
    will continue to work with rail labor to find effective solutions to
    fatigue issues. To that end, railroads are amenable to a careful
    reexamination of the Hours of Service Act's statutory limitations.
    Changes in the HSA might help reduce fatigue in the rail workplace, but
    they need to be carefully considered to maximize the probability that
    they will actually attain the goals they are designed to achieve.
        Specifically, railroads do not object to several changes to
    existing employee hours-of-service regulations. First, railroads do not
    object to prohibiting train and engine and signal employees from
    working unless they have had at least ten consecutive hours off-duty
    (up from 8 hours under existing law) during the prior 24 hours.
    Railroads do not object to a requirement that those 10 hours should be
    free of non-emergency phone or page communications from railroads.
    Second, any employee who works 12 consecutive hours on duty, and then
    at least 1 hour of limbo time,\6\ would receive at least 14 hours of
    off-duty time once he or she is released from duty. Third, rail train
    and engine employees would be subject to a new monthly maximum of 276
    hours on duty, and even though limbo time is not on-duty time, it would
    be included in those 276 hours.\7\ Hours beyond this new maximum, which
    is consistent with permissible hours for other modes of transportation,
    would be a violation of the HSA. (Today a rail employee could
    theoretically work 432 hours per month and still be in compliance with
    the HSA.) \8\
    ---------------------------------------------------------------------------
        \6\ ``Limbo time'' refers to the time that crews spend waiting for
    transportation and the time they spend being transported to where they
    are released from duty. Limbo time counts as neither time on-duty nor
    time off-duty.
        \7\ KCS and CN do not agree with this position, and Amtrak abstains
    on the issue.
        \8\ In fact, though, we know of no cases where this has occurred.
    The vast majority of railroad workers are on duty each month for
    periods comparable to most other U.S. workers. Some 83 percent of these
    rail workers are on duty less than 200 hours per month and more than 95
    percent are on duty less than 250 hours per month.
    ---------------------------------------------------------------------------
        Together, these measures not only significantly reduce the maximum
    on-duty time under current law, but they also strike a balance between
    the concerns that limbo time contributes to fatigue and the realities
    of the unpredictability of railroad operations.
        The above changes reflect the railroad industry's preferred
    approach. Failing use of this approach, railroads would support a
    transfer of the hours-of-service authority to the FRA, with reliance on
    FRA's professional judgment.
        To enable signal employees to finish their work at far-away sites
    without having to commute multiple times, railroads and signal
    employees historically have agreed to modified work schedules--for
    example, eight consecutive work days (ten hours each day) followed by
    six consecutive days off. These work schedules are permitted under the
    HSA, are contained in collective bargaining agreements with signal
    employees, and result in much less total off-duty travel time for
    employees working a substantial distance from home.
        However, schedules like this are not permitted by Federal Motor
    Carrier Safety Administration (FMCSA) hours-of-service regulations,
    which apply to the many railroad signal employees who drive commercial
    vehicles to perform their duties. Several years ago, railroads and rail
    labor (through the Brotherhood of Railroad Signalmen) petitioned FMCSA
    to allow the HSA to take precedence over FMCSA's hours-of-service
    requirements. To date, FMCSA has refused. This problem can be rectified
    if it is made clear statutorily that hours-of-service requirements for
    rail signal employees under the HSA shall not be subject to hours-of-
    service restrictions imposed by another government agency.
    Highway-Rail Grade Crossings and Trespassers
        Collisions at grade crossings, along with incidents involving
    trespassers on railroad rights-of-way, are critical safety problems. In
    2006, these two categories accounted for 97 percent of rail-related
    fatalities. Although these incidents usually arise from factors that
    are largely outside of railroad control,\9\ and even though highway-
    rail crossing warning devices are properly considered motor vehicle
    warning devices there for the benefit of motorists, not trains,
    railroads are committed to efforts aimed at further reducing the
    frequency of crossing and trespasser incidents.
    ---------------------------------------------------------------------------
        \9\ A June 2004 report by the U.S. DOT's Office of Inspector
    General (OIG) confirmed that motorist behavior causes the vast majority
    of grade crossing accidents. According to the OIG report, ``Risky
    driver behavior or poor judgment accounted for 31,035 or 94 percent of
    public grade crossing accidents'' from 1994-2003. The remaining
    accidents included such circumstances as vehicles stuck, stalled, or
    abandoned at crossings.
    ---------------------------------------------------------------------------
        Much success has already been achieved. In 1980, according to FRA
    data, 10,611 grade crossing collisions resulted in 833 fatalities and
    3,890 injuries. According to preliminary data, 2,908 collisions in 2006
    (down 73 percent) involved 366 fatalities (down 56 percent) and 1,006
    injuries (down 74 percent). The rate of grade-crossing collisions per
    million train-miles fell 76 percent from 1980 through 2006, and has
    fallen every year since 1980. And because total exposure (train-miles
    multiplied by motor vehicle-miles) has risen sharply over time, the
    reduction in crossing incidents and casualties per unit of exposure has
    been even higher.

        The Section 130 program, a national highway safety program created
    by the Highway Safety Act of 1973 and expanded most recently in
    SAFETEA-LU, is a major reason for the impressive grade crossing safety
    gains. Under the program, funds are apportioned to states each year for
    the installation of new active warning devices such as lights and
    gates, upgrading existing devices, and replacing or improving grade
    crossing surfaces. The rail industry commends and thanks the members of
    this committee and others in Congress for their support of this
    critical program.
        Railroads continue to work hard to improve grade-crossing safety,
    including cooperating with state agencies to install and upgrade grade
    crossing warning devices and signals (and bearing the cost of
    maintaining those devices); helping to fund the closure of unneeded or
    redundant crossings; and supporting the national Operation Lifesaver
    grade crossing and pedestrian safety program. Railroads spend more than
    $250 million annually to improve, operate, and maintain grade
    crossings.
        A recent initiative that will result in improved safety is the use
    of ``stop'' or ``yield'' signs along with crossbucks at grade
    crossings. The National Committee on Uniform Traffic Control Devices
    has recommended revising the Manual of Uniform Traffic Control Devices
    (MUTCD) to require the use of stop or yield signs in conjunction with
    crossbucks to make it clear what is expected of motorists at crossings.
    The AAR strongly supports amending the MUTCD as recommended by the
    National Committee and follow through on the installation of signs. AAR
    also supports FRA's recommendation, included in its May 2006 report to
    Congress on emergency notification systems for grade crossings, that
    signs comply with the MUTCD recommendations.
        The report to Congress also recommended that Class I railroads
    continue their emergency notification programs, which provide the
    public with telephone numbers, posted at grade crossings, that can be
    called in the event of grade-crossing emergencies. AAR's member
    railroads will continue these programs.
    Comprehensive Highway-Rail Grade Crossing Safety Agenda
        A comprehensive agenda of engineering, education, and enforcement
    actions should be implemented so that further improvement in crossing
    safety can be achieved. Congress and the Federal Government should
    adopt and implement the following set of grade crossing safety and
    trespasser prevention initiatives:

       Adopt a uniform national grade crossing closure process,
            combined with a freeze on the overall number of grade crossings
            within each state.

       Require the adoption of highway design standards that
            ultimately eliminate grade crossings on the National Highway
            System.

       Redefine ``private grade crossings'' in such a manner that
            all grade crossings that are routinely accessible to the
            general public are eligible for Section 130 funding.

       Fund a research and development program to design effective
            low-cost active warning systems for grade crossings, and
            continue evaluations of the effectiveness of more advanced
            warning device systems such as four quadrant gates.

       Enhance grade crossing traffic law enforcement by requiring
            grade crossing safety as part of commercial driver's license
            educational curricula and by maintaining tough grade crossing
            traffic violation penalties.

       Initiate active enforcement programs with local police
            agencies--e.g., encourage video enforcement and establish and
            fund a program for state and local law enforcement officers to
            serve in FRA's regional offices as liaisons for grade crossing
            and trespassing matters with state and local law enforcement
            organizations.

       Require a minimum set-back or physical safety barrier
            between active railroad tracks and adjacent parallel trails and
            paths.

       Continue to fund the national Operation Lifesaver grade
            crossing and pedestrian safety program.

       Increase Federal liability insurance requirements for
            contractors whose funded projects interface with or impact a
            railroad.
    Trespassers
        For many years, significantly more fatalities on railroad property
    have been associated with trespassers than with highway-rail grade
    crossing accidents. It is an unfortunate reality that too many people
    inappropriately use railroad property for short cuts, recreation, or
    other purposes, sometimes with terrible results. Railroads are engaged
    in ongoing efforts to educate the public that, for their own safety,
    they should stay off rail property.
        Each year, scores of people tragically choose to end their life by
    stepping or lying in front of a train. To help prevent the tragedy of
    suicide, railroads support the Suicide Prevention Action Network (SPAN
    USA), a charitable organization dedicated to preventing suicide through
    public education and awareness; community action; and Federal, state,
    and local grassroots advocacy. In addition, through its Railroad
    Research Foundation, the AAR is researching the prevalence of, and
    underlying causal factors for, rail-related suicides. Such
    understanding could facilitate countermeasures to reduce suicides on
    railroad rights-of-way.
    Performance Standards
        There are two general approaches to workplace safety regulation:
    design-based standards and performance standards.
        Design-based standards specify the precise characteristics of
    facilities, equipment, and processes a firm must use in the manufacture
    or delivery of its product or service. The FRA relies overwhelmingly on
    design-based standards in regulating rail safety. Design-based
    standards are costly for both railroads and the FRA to administer and
    maintain. They also tend to impede innovation by ``locking in''
    existing designs, technology, and ways of thinking.
        The discolored wheel rule provides a classic example of a design-
    based standard that discourages new technology. This FRA rule required
    railroads to remove freight car wheels that showed four or more inches
    of discoloration, on the grounds that such discoloration could portend
    wheel failure. However, research demonstrated conclusively that
    discoloration in new heat-treated, curved-plate wheels did not portend
    failure. Despite this evidence, the FRA took more than a decade to
    exempt such wheels from the requirement. During this period, railroads
    had to discard perfectly safe wheels at a cost that reached $100
    million per year.
        In contrast to design-based standards, performance-based standards
    define the desired result, rather than mandate the precise
    characteristics that a workplace must exhibit. Performance-based goals
    focus attention and effort on the outcome, not the method.
        Under one type of safety regime based on performance standards,
    each railroad would have goals for train safety (e.g., accidents per
    million train-miles) and employee safety (e.g., injuries per 100
    employees) as part of a comprehensive risk management plan, based on
    targets established by the industry and approved by the FRA. If a
    railroad failed to meet these goals, it would come under increased FRA
    scrutiny, be required to specify how it planned to correct the
    problems, and eventually be subject to monetary penalties or even a
    return to design-based regulation. While some (but not all) of the old
    regulations would be suspended under a performance-standard regime, the
    FRA would retain the power to conduct safety audits and to impose
    emergency directives at any time to protect public safety.
        Under safety performance standards, railroads would have the
    opportunity and incentive to achieve safer operations as efficiently as
    possible. Performance standards would rely on the superior knowledge of
    railroads and their employees and would give railroads the discretion
    to experiment with new technologies and processes to improve safety.
    The result would be superior safety performance at a lower cost to
    railroads and their customers.
        Risk-based performance standards represent a reform, not an
    abandonment, of safety regulation. Except in emergencies or after
    continued failure to meet targets, the FRA would no longer specify how
    a railroad would achieve its safety goals. Instead, the FRA would
    oversee and validate the goal-setting process, ensure that measures and
    data are accurate, and impose any necessary sanctions.
        Railroads have proposed a performance standard pilot project
    focused on locomotive inspections. In addition, the standards the
    industry committee issued in December 2006 for anhydrous ammonia and
    chlorine tank cars incorporate performance standards. The committee
    standards mandate tank thickness, head shields, and top-fittings
    protection. However, tank car owners or builders can petition the
    Committee to accept a tank car that, in lieu of the specified tank
    thickness and head shields, achieves the same safety improvement.
    Conclusion
        Thank you for the opportunity to testify on this critical topic.
    The railroad industry is committed to working with its employees,
    Congress, the FRA, its customers, and others to ensure that rail safety
    continues to improve.

        Senator Lautenberg. Thanks very much, Mr. Hamberger. Mr.
    Timmons, we look forward to hearing from you.

    STATEMENT OF RICHARD F. TIMMONS, PRESIDENT, AMERICAN SHORT LINE
                   AND REGIONAL RAILROAD ASSOCIATION

        Mr. Timmons. Well, good morning, Mr. Chairman. I appreciate
    the opportunity to appear this morning on behalf of the
    American Short Line and Regional Railroad Association.
    Nationwide there are over 550 Short Line Railroads operating
    nearly 50,000 miles of track, employing just over 23,000
    individuals.
        Like the Class I railroads, the Short Line industry is
    proud of its safety record and believe that the trends over the
    last 10 years demonstrate the commitment we have made to
    improving safety. In the last 10 years our total accidents and
    incidents has declined by 44 percent. And our employee injuries
    have declined by 58 percent. I'm particularly pleased to tell
    you that in 2006, we had 206 Short Line Railroads without a
    single personal injury and another 77 Short Lines with personal
    injuries below the Short Line Industry average.
        We know that any accident is one too many. And tireless
    effort is required to improve our record. But the trend line
    for small railroads has been heading in the right direction for
    some years now. I'd like to briefly touch on a number of things
    that will help us further improve our record; and a number of
    items that will not.
        First, we take safety training very seriously. In 2005 the
    Short Line Association entered into a new partnership with the
    National Academy of Railway Sciences to facilitate Short Line
    use of this outstanding training facility. Short Line
    attendance has increased steadily since the new partnership was
    announced. And we believe that the higher more intense level of
    training will contribute to safer Short Lines.
        Greater access through the Internet is on the way making
    this training even more useful and effective for the Short Line
    industry. Additionally we are partnering with the Federal
    Railroad Administration in putting on seminars in drug and
    alcohol training, engineer certification and track and bridge
    safety standards.
        Second, improving our infrastructure will improve our
    safety record. The Short Line industry puts nearly one-third of
    its annual gross revenues into track and equipmenting
    improvements, a higher percentage than any other industry in
    the country. Every dollar we invest in upgrading track makes
    our railroads safer.
        The Federal Tax Credit that Congress enacted in 2004 has
    allowed Short Line to increase that investment. It's also
    leveraged significant additional investments by railroad
    customers and state and local governments. That credit expires
    at the end of 2007. And Senators Blanche, Lincoln and Gordon
    Smith have introduced S. 881 to extend that credit for another
    3 years. Enacting legislation which maximizes infrastructure
    investment is the single most important measure Congress could
    enact to enhance Short Line Railroad's safety.
        The Railroad Rehabilitation and Improvement Financing
    Program or the so called RRIF program is another way the
    Federal Government can leverage significant investment in track
    improvements. This program provides loans to railroads for a
    variety of capital purposes including track and equipment
    rehabilitation. It provides loans at ``cost of money'' to the
    government for 25 year terms.
        Short Line Railroads cannot secure this kind of funding in
    the private markets. And the program should serve as one of the
    most cost effective public/private partnerships in the
    transportation field. These are loans that must be fully
    repaid. There is absolutely no cost to the Federal Government.
    The loans are secured by collateral equal to 100 percent of the
    loan value plus the payment of a so called ``credit risk
    premium'' that covers the risk of default. This program could
    go a long way toward upgrading the Short Line system at no cost
    to the Federal Government, unfortunately it is not.
        Since the program was initiated in 1988 only 15 loans have
    been approved. Now I'll not take your time this morning
    explaining all the reasons for this failure. And indeed I am
    not sure I understand all of them myself. But if this Committee
    could get to the bottom of that problem, you would be making an
    enormous contribution to railroad safety.
        As has been referenced here today the House Transportation
    and Infrastructure Committee is currently considering safety
    legislation in H.R. 2095. There are a number of provisions in
    that legislation that will reduce the amount of money Short
    Lines are able to invest in track upgrades. And will do so
    without any measurable improvement in safety.
        Let me comment on these very quickly. And then if you wish,
    spend time on them in the question and answer portion of the
    hearing. The legislation mandates regulations we're requiring
    on main lines in non-signal territory. A system that would warn
    a train in advance of a misaligned switch or an operating
    policy that trains be operated at speeds that will allow them
    to be stopped in advance of misaligned switches.
        Short Line Railroads have well over 15,000 switches, as a
    conservative estimate on non-signal main lines. The cost of
    this provision would be well beyond the resources of the Short
    Line Railroads. Moreover, such a provision would provide a
    strong incentive to remove under-utilized switches to the
    detriment of our smallest customers and communities.
        The legislation also places signal contractors under the
    Hours of Service Act. Short Line Railroads use these highly
    specialized people for the majority of their signal work. They
    are an efficient and cost effective group of workers.
    Subjecting them to the Hours of Service Act will increase their
    costs and those increases will be passed on to the Short Lines.
    I might add that since the Railway Worker Rule went into effect
    in 1996, no Short Line Railroad has ever had a railway worker
    fatality.
        And the legislation changes the emergency work provision
    for signal employees by providing that it can not be invoked
    for more than 3 days during a period of seven consecutive days;
    and providing they can not be invoked for routine repairs,
    maintenance and inspections. This is going to be particularly
    harmful for small signal contractors who will have to hire
    additional full-time employees to cover what will be an
    occasional event.
        The Short Line Railroad Industry understands the importance
    of safety and has made a substantial investment in making our
    property safer. It is good for our business. And it is the
    necessary and right thing to do for our employees. We stand
    ready to work with the Federal Government in its efforts to
    continue making progress in this important area.
        Mr. Chairman, thank you very much for this opportunity. And
    I'll be glad to address any questions the Committee may have at
    the appropriate time.
        [The prepared statement of Mr. Timmons follows:]

      Prepared Statement of Richard F. Timmons, President, American Short
                     Line and Regional Railroad Association
        Good morning, Mr. Chairman and members of the Committee. I
    appreciate the opportunity to appear this morning on behalf of the
    American Short Line and Regional Railroad Association (ASLRRA).
    Nationwide there are over 500 short line railroads operating nearly
    50,000 miles of track and employing over 23,000 individuals.
        Like the Class I railroads the short line industry is proud of its
    safety record and believes that the trends over the last 10 years
    demonstrate the commitment we have made to improving safety. In the
    last 10 years our total accidents and incidents has declined by 44
    percent and our employee injuries have declined by 58 percent. I am
    particularly pleased to tell you that in 2006 we had 206 short line
    railroads without a single personal injury and another 77 short lines
    with personal injuries below the short line industry average.
        We know that any accident is one too many and tireless effort is
    required to continue to improve our record. But the trend line for
    small railroads has been headed in the right direction for some years
    now.
        I would like to briefly touch on a number of things that will help
    us further improve our record and on a number of items that will not.
        First, we take safety training very seriously. In 2005 we the Short
    Line Association, entered into a new partnership with the National
    Academy of Railway Sciences to facilitate short line use of this
    outstanding training facility. Short line attendance has increased
    steadily since the new partnership was announced and we believe that
    the higher more intense level of training will contribute to safer
    short lines. Additionally, we are partnering with the Federal Railroad
    Administration in putting on seminars on drug and alcohol training,
    engineer certification, track safety standards and bridge safety
    standards. Greater access through the Internet is on the way making
    this more useful and effective for Short Lines.
        Second, improving our infrastructure will improve our safety
    record. The short line industry puts nearly one-third of its annual
    gross revenues into track and equipment improvements, a higher
    percentage than any other industry in the country. Every dollar we
    invest in upgrading track makes our railroads safer. The Federal tax
    credit the Congress enacted in 2004 has allowed short lines to increase
    that investment. It has also leveraged significant additional
    investments by railroad customers and state and local governments. That
    credit expires at the end of 2007 and Senators Blanche, Lincoln, and
    Gordon Smith have introduced S. 881 to extend that credit for another 3
    years. Enacting legislation which maximizes infrastructure investment
    is the single most important thing Congress could do to enhance short
    line railroad safety.
        The Railroad Rehabilitation and Improvement Financing Program or
    so-called RRIF program is another way the Federal Government can
    leverage significant investment in track improvements. This program
    provides loans to railroads for a variety of capital purposes including
    track and equipment rehabilitation. It provides loans at ``cost of
    money'' to the government for 25 year terms. Short line railroads
    cannot secure this kind of funding in the private markets and the
    program should serve as one of the most cost effective public-private
    partnerships in the transportation field. These are loans that must be
    fully repaid. There is absolutely no cost to the Federal Government.
    The loans are secured by collateral equal to 100 percent of the loan
    value, plus the payment of a so-called ``credit risk premium'' that
    covers the risk of default.
        This program could go a long way toward upgrading the short line
    system at no cost to the Federal Government. Unfortunately it is not.
    Since the program was initiated in 1998 only 15 loans have been
    approved. I will not take your time today explaining all the reasons
    for this failure, and indeed I am not sure I understand all of them
    myself. But if this Committee could get to the bottom of that problem
    you would be making an enormous contribution to railroad safety.
        As has been referenced here today, the House Transportation and
    Infrastructure Committee is currently considering safety legislation,
    H.R. 2094. There are a number of provisions in that legislation that
    will reduce the amount of money short lines are able to invest in track
    upgrades and will do so without any measurable improvement in safety.
    Let me comment on these very quickly and then if you wish spend time on
    them in the question and answer portion of the hearing.

            1. The legislation mandates regulations requiring on main lines
            in non-signaled territory a system that would warn a train in
            advance of a misaligned switch, or an operating policy that
            trains be operated at speeds that will allow them to be stopped
            in advance of misaligned switches. Short line railroads have
            well over 15,000 switches on non-signaled main lines. The cost
            of this provision would be well beyond the resources of the
            short line railroads. Moreover, such a provision would provide
            a strong incentive to remove under-utilized switches to the
            detriment of our smallest customers.

            2. The legislation places signal contractors under the Hours of
            Service Act. Short line railroads use these highly specialized
            people for the majority of their signal work. They are an
            efficient and cost effective group of workers. Subjecting them
            to the Hours of Service Act will increase their costs and those
            increases will be passed on to the short line. I might add that
            since the Roadway Worker rule went into effect in 1996 no short
            line railroad has ever had a railway worker fatality.

            3. The legislation changes the emergency work provision for
            signal employees by providing that it cannot be invoked for
            more than 3 days during a period of seven consecutive days and
            by providing that it cannot be invoked for routine repairs,
            maintenance and inspections. This is going to be particularly
            harmful for smaller signal contractors who will have to hire
            additional full time employees to cover what will be an
            occasional event.

        Lastly, I would like to briefly address the issue of hazardous
    material. The short line railroad record in this area is excellent. The
    U.S. Department of Transportation Hazardous Materials Information
    System indicates for 2004, 2005 and 2006 that no short line railroad
    has been responsible for any fatalities, injuries, or hospitalizations
    resulting from a hazardous materials release. Since 1973 FRA has
    recorded one hazardous material related fatality on a short line and
    that fatality involved an unauthorized rider on a freight train.
        The vast majority of short line railroads would prefer to give up
    this traffic. We cannot adequately insure for the risk and for most
    short lines a single accident means going out of business. In the
    majority of cases the short line does not even set the rate so there is
    virtually no relationship between what we earn and the risk we assume.
    Compounding the rate inadequacy problem is the fact that for short
    lines the cost to insure one car is just a much as 100 cars.
        I fully understand how difficult this issue is for Congress. There
    is strong special interest opposition to a meaningful cap on liability.
    Neither the producers nor the end-users are willing to pay the real
    price associated with this transportation and would vigorously and
    probably successfully oppose any such proposal in Congress. But the
    fact remains that some day there will be an accident on a short line
    railroad and that railroad will be put out of business. When that
    happens many more short line railroad owners will decide the risk is
    too great and will throw in the towel.
        We believe that a realistic solution to this problem will involve
    some combination of a limit on liability, a greater assumption of the
    cost by the producers and end-users and perhaps some kind of government
    insurance program that assumes the risk above a certain level. For that
    to work for short lines however there needs to be some bridge between
    our company insurance and what will undoubtedly be a much higher
    liability limit under the new mechanism.
        I strongly urge this Committee to vigorously pursue a solution
    before, not after, a crisis occurs. The short line industry certainly
    stands ready to make whatever modest contribution we can to crafting
    that solution.
        The short line railroad industry understands the importance of
    safety and has made a substantial investment in making our properties
    safer. It is good for our business and it is the necessary and right
    thing to do for our employees. We stand ready to work with the Federal
    Government in its efforts to continue making progress in this important
    area.

        Senator Lautenberg. Thank you very much each of you for
    your testimony.
        I would ask first, Mr. Wytkind, do you believe that the FRA
    could accomplish what the railroads and labor could not
    collectively agree upon, that is a fair and effective update to
    the hours-of-service law? Do you think the FRA can accomplish
    that despite the fact that the railroads and labor could not
    agree upon it?
        Mr. Wytkind. Well, let me say the Federal Railroad
    Administration to the extent it needs the authority to--to try
    to address the issue; that should be done. But Congress needs
    to speak on this issue and provide very clear directives on
    some very important issues. Not the least of which are how you
    manage this fatigue crisis in the industry, how the workers are
    scheduled, the overuse and abuse of limbo time and the need to
    eliminate that.
        So, I think obviously the Federal Railroad Administration
    needs to have a role in establishing the new standards that
    will be applicable to the railroad industry. But the Congress
    has to speak on it. We've spoken very aggressively on the House
    side. We obviously have expressed our views over here on the
    Senate side.
        And it is our hope that the legislation will very clearly
    address these issues. So that you do not have, for example, a
    worker seeing its employer use six, 7 hours of limbo time on
    the job and then basically run into this crisis that you and
    the government panel had a long discussion about which is how
    you manage this long residual effect of fatigue in the
    workforce.
        Senator Lautenberg. Mr. Hamberger, we're pleased to see the
    robust growth in the industry. We look at profits as an
    ordinary reflection of the opportunity in business. I come from
    the corporate world and I know the profits are good, but I hope
    that it's not at the expense of safety. And I heard you talk
    about the growth and safe performance over the last years. How
    do you propose addressing the fatigue question in the railroad
    industries?
        Mr. Hamberger. Let me--if I could just address the first
    part of your predicate there. It is indeed true that 2006 was a
    good year for our industry and that's why we are re-investing
    $9.4 billion back into the industry. We are not sitting idly
    by.
        Senator Lautenberg. What are the revenues of the industry?
        Mr. Hamberger. About 50, so it's about 20 percent.
        Senator Lautenberg. Fifty billion dollars.
        Mr. Hamberger. Yes, about 20 percent going back into CapEx
    and then on top of that a similar amount for maintenance. So we
    spend close to 40 percent on maintaining, expanding and
    improving the infrastructure. And frankly, if we weren't doing
    that----
        Senator Lautenberg. Forty percent of what?
        Mr. Hamberger. Forty percent of all revenues.
        Senator Lautenberg. And you're not suggesting that that 40
    percent is part of operating cost, are you?
        Mr. Hamberger. There's CapEx and there's maintenance. No,
    on top of that would be labor cost which is about another 35
    percent of the revenue. So, no.
        Senator Lautenberg. Careful, you're going to run out of
    profits.
        Mr. Hamberger. Good point.
        Senator Lautenberg.--will not get a lot of sympathy for
    you.
        Mr. Hamberger. And so the point is we are not sitting idly
    by. We are investing. And frankly, the fact is that we are
    growing the business. A little known fact is that UPS is our
    biggest single customer. They have very high demands on being
    able to move their containers across the system. You can't do
    that if you sit back and let track become decrepit, as some
    have suggested. In fact, we are investing and upgrading the
    track, upgrading the signal systems and that improves both
    service and safety.
        Senator Lautenberg. But also we don't want to see gain
    based on unfair treatment of employees. I mean the hours-of-
    service are just----
        Mr. Hamberger. Absolutely correct. Our proposal on limbo
    time, specifically. Let me give you our whole fatigue proposal
    that we submitted to the House. Certainly we believe that the 8
    hours off is not enough. In the current statute it should be 10
    hours off after every shift, both at home and away terminals.
    And that should be uninterrupted time off. That is to say that
    you would not get called for your next turn of duty until that
    10 hours has expired.
        We believe, generally speaking, there are one or two
    railroads that don't agree with this but, generally speaking,
    there should be a cap of 276 hours per month, far below what
    you heard from the NTSB with respect to maritime and trucking.
    And with respect to limbo time, we agree that if limbo time
    occurs, that there should be additional rest because the issue
    is--as the NTSB gentleman said, you don't want to send someone
    out there with a sleep deficit.
        Now, limbo time occurs because something has happened on
    the system. It is not baked into our operating plans. There's a
    grade crossing accident and all of the trains have to stop
    while that is dealt with at the crossing. There's a washout.
    There's an accident. There are any number of issues that can
    cause the system to slow down. And what we're saying is it
    should not be a violation of hours-of-service, but indeed, the
    employees should get 14 hours of rest when limbo time--when
    more than 1 hour of limbo-time occurs.
        Senator Lautenberg. Mr. Wytkind, are you satisfied that
    some show of improvement from where we've been for these years?
        Mr. Wytkind. Safety in the industry?
        Senator Lautenberg. Yes.
        Mr. Wytkind. No. Because one of the things I think that's
    lost in the statistics is that--and if you go back actually 20,
    at least 20 years, going back to the 1980s. Every major
    governmental investigation report I've read in my career
    representing workers in this town has shown a significant
    amount of under-reporting; and very inadequate government data
    collection in understanding what injuries and accidents
    actually occur and how many there are.
        So the fact that our workers are constantly harassed and
    intimidated in an effort to suppress the reporting of injuries
    and accidents and in our proposal we say it goes further to
    include safety and security risks on the job.
        Senator Lautenberg. Just for the moment and look at what
    Mr. Hamberger said about the increase in the hours for rest
    from eight to ten, is that what I----
        Mr. Hamberger. Yes, sir.
        Senator Lautenberg. Is that a positive?
        Mr. Wytkind. Well, look. Any movement by the railroad
    industry to try to address this issue is obviously going to get
    us to, hopefully, a position where we're actually talking to
    the employers about how best to address this. But it's very
    clear to us that they do not want Congress to prescribe much of
    what they do operationally as railroads.
        And from our--in our judgment for us to actually deal with
    this issue in a responsible way we're going to have to stop the
    abuse of how you schedule workers. You're going to have to put
    very legitimate benchmarks in the law that prescribes how
    you're going to deal with rest, how you're going to deal with
    the length of time on the job. I don't think they're going far
    enough.
        Senator Lautenberg. I don't want to place anybody at a
    disadvantage here. I'm not an arbitrator but I was just struck
    by one thing that indicated at least some improvement of, well,
    significant magnitude.
        Mr. Wytkind. Well, yes, but Mr. Chairman, one important
    point missing is, Mr. Hamberger didn't talk about the need to
    eliminate the misuse of limbo time. And the fact that workers
    are sitting for several hours in--on the job.
        Senator Lautenberg. Well, I heard and once again I don't
    pick favorites.
        Mr. Wytkind. I understand.
        Senator Lautenberg. That when I hear, regardless of how you
    identify, but a wait time or a home time, but the same rest
    period should be, the rest period should be lengthened.
        And this isn't to say that there's not fault to go around
    here, absolutely. I'm concerned most about the safety issue
    here. And in order to make sure that safety opportunity is
    maximized; you have to consider the condition of the employees
    who are running the thing.
        I mean, look at our disservice to the trucking industry and
    because so many independent operators are there, it makes it
    much tougher to manage. And so, but, Mr. Timmons, with the
    Short Lines, business is growing and are profits showing? I
    don't mean to be poetic here, it's just.
        Mr. Timmons. Mr. Chairman, the trickle down effect from the
    Class I railroads onto the Class II's and Class III's is
    direct. In other words, as the Class I's do well, so do the
    Class II and Class III railroads. And over the last 5 years or
    so, the success of the Class I railroad industry has certainly
    been felt. And the smaller railroad industry is growing and
    investing in its systems, expanding and improving the
    infrastructure.
        Now in the last year or so we've seen a softening of the
    economy and so there's generally a flat profile for the small
    railroad industry. And I think that's probably not
    uncharacteristic of what's going on, at least, this year in the
    Class I industry. So, not bad in the last few years, but we've
    hit a soft spot for the present.
        The investment in the safety piece, of course, as the Class
    Is become more sophisticated and increase, as a result the
    market forces, the weight of their equipment. The Class II and
    Class III industry have had to adjust and increase the
    robustness of their track structure. The tax credit which was
    passed in 2005, went in effect in 2005 and 2006 and exhausts
    this year was one of the principle ways for us to facilitate
    increasing the track structure to 286,000 pounds.
        Senator Lautenberg. You stated earlier that the Short Line
    industry puts nearly one-third of its annual gross revenues
    into track and equipment improvements. Now, again, similar to
    the question I asked Mr. Hamberger, you're not talking about
    operating expenses in that class of expenditure?
        Mr. Timmons. No, sir. We are not. This is a----
        Senator Lautenberg. We could call them capital investments.
        Mr. Timmons.--capital expenditures, yes, sir.
        Senator Lautenberg. Capital expenditures. Now, equipment is
    commonly purchased, sold and leased. I mean, we've seen the
    airline industry and sometimes a purchase is made directly by
    the lessee. And is that considered debt on your balance sheet,
    the leases that you sign for equipment?
        Mr. Hamberger. I'm going to defer and get back to you on
    that sir.
        Senator Lautenberg. I was curious. There are plenty of
    investors who want to take title to this equipment.
        Mr. Hamberger. There are leasing companies. For example, GE
    Capital is a large----
        Senator Lautenberg. Yes.
        Mr. Hamberger. I better leave it where I said I'll get back
    to you.
        [The information previously referred to follows:]

              Railroad Investment in Infrastructure and Equipment
        Railroads are highly capital intensive and they commit funds for
    infrastructure and equipment in three general ways. First, railroads
    incur operating expenses primarily for repair and maintenance of both
    roadway and structures, and locomotives and freight cars. Class I
    railroad operating expenses for infrastructure and equipment during
    2006 totaled $10.9 billion or more than one-quarter of all operating
    expenses (excluding an additional $4.4 billion in depreciation expenses
    associated with ``writing off'' prior long-term investments).
        The second type of spending by the railroads is capital
    expenditures. These funds are used for replenishment and expansion.
    Class I railroad capital expenditures for 2006 totaled $8.5 billion.
    These outlays are comprised of both the traditional large-scale
    projects which are booked as capital expenditures and expensed over a
    period of years as depreciation as well as long-term leases of rolling
    stock which are similarly capitalized. Unlike most other modes, freight
    railroads own the infrastructure over which they operate and must
    build, replace, and maintain that infrastructure at their own expense.
    Capital expenditures for wooden and concrete track ties alone have
    totaled over $1 billion for the past four consecutive years. To put the
    heavy capital demands of railroading into perspective, freight
    railroads' capital expenditures per revenue dollar (17.2 percent) have
    been five times that of the average U.S. manufacturer (3.4 percent)
    over the past 10 years.
        Operating leases are a third type of investment vehicle that
    railroads use, and this method is employed mostly for rolling stock.
    Railroad leases that are capitalized (discussed above) are reported in
    the balance sheet \1\ of the regulatory report made by Class I
    railroads. There is no such accounting provision for the reporting of
    operating leases. The western Class I railroads in particular make
    significant use \2\ of operating leases to add new locomotives to their
    fleet, and the financial impacts of those transactions are not
    reflected in the balance sheet or capital expenditure items of the
    regulatory report.\3\ In their shareholder reports, some railroads
    disclose a ``lease-adjusted debt to total capital'' percentage, but it
    is considered a non-GAAP (Generally Accepted Accounting Principles)
    financial measure. Operating leases are quantified or valued by stating
    them on a net present value of future lease payments basis. The
    Association of American Railroads estimates that new operating leases
    represented a Class I railroad investment commitment of over $1 billion
    in funds in 2006. Any difficulty or inconsistency in accounting for
    operating leases and their impact on balance sheets is currently being
    addressed. On July 19, 2006, the Financial Accounting Standards Board
    announced a new agenda item to ``reconsider the current accounting
    standards for leases.'' Some believe that potential changes to the
    current accounting standards for leases could cause almost all leases
    to be capitalized.
    ---------------------------------------------------------------------------
        \1\ Annual Report Form R-1, Schedule 200, Line 43. The Surface
    Transportation Board requires every Class I railroad operating within
    the United States to submit the Annual Report.
        \2\ Union Pacific Corporation lists the net present value of its
    new operating leases for 2006 as $443 million on page 4 of its 2006
    Analyst Fact Book. A similar amount can be concluded for Burlington
    Northern Santa Fe based on their Capital Commitments slide used in
    presentations to stock analysts.
        \3\ Therefore, ``debt'' is somewhat underrepresented in the balance
    sheet of carrier reports to the Surface Transportation Board--although
    the figure reported is accurate by the rules of accounting.
    ---------------------------------------------------------------------------
        The Association of American Railroads (AAR) will sometimes refer to
    infrastructure and equipment ``outlays'' or ``spending''. This is a
    measure of capital expenditures plus related operating expenses.
    Because depreciation-generated amounts apply to prior capital
    expenditures, depreciation expense must be deducted from the capital
    expenditure and expense sum total to avoid double counting. Class I
    infrastructure and equipment spending for 2006 totaled $19.3 billion.
        The AAR will also sometimes refer to ``capital commitments'' for
    infrastructure and equipment. This is a measure of capital expenditures
    plus the net present value of new operating leases. The AAR does not
    have a report to directly retrieve the value of operating leases, but
    some figures can be found in railroad presentations and reports to
    shareholders, investors, and stock analysts. Although the AAR
    originally projected capital commitments for 2006 to be $8.6 billion,
    we now believe that they may exceed $9.0 billion.

        Senator Lautenberg. Mr. Hamberger, safety technology is
    moving at a rapid pace in other industries. New cars that can
    self-park and others that have a collision warning system to
    warn drivers of impending obstacles and stop the car if the
    driver doesn't react. Accordingly locomotive cab alert systems
    and automatic devices that stop trains have been in place for,
    in portions of the railroad industry, for many years. Why is it
    taking so long for the industry to further implement the PTC?
        Mr. Hamberger. Well, one of the issues and you put your
    finger on it earlier, is indeed capital and where do you put
    that capital. We are putting it into upgrading the
    infrastructure. For example, new track and new signal systems,
    new locomotives, new cars, new capacity to serve the customers.
        At the same time, we were in a 5 year program with the
    Department of Transportation and the Illinois Department of
    Transportation to try to prove that technology south of
    Chicago. Former FRA Chief Jolene Molitoris, sent a report to
    Congress indicating that a PTC system at the time would be
    about $6 billion to implement with about $2 billion worth of
    benefits. And so, that cost benefit ratio wasn't there.
        What's happened in the interim because of that work done in
    Illinois is that some of these suppliers have developed a less
    costly and effective system as opposed to a fail safe system.
    One of our members has gotten approval from FRA to implement.
    Others are testing it and I think that it will be rolled out in
    the next several years across the industry.
        One of the things that we've got to make sure, of course,
    is that it is interoperable. That is, we have so many trains
    that run from----
        Senator Lautenberg. What about the improvements being made
    now and even contemplated further with the tanker cars?
        Mr. Hamberger. Yes, sir. We have implemented a new tank car
    standard effective January 1, 2008. It will reduce the
    likelihood of leaks if an accident occurs.
        Senator Lautenberg. Rupture.
        Mr. Hamberger. Yes, sir, by 63 percent.
        Senator Lautenberg. And that's further thickening.
        Mr. Hamberger. It's further thickening of what is called
    the head shield, the ends of the tanker as well as the sides of
    the tanker and a new design of the top fittings where the
    chlorine or the anhydrous ammonia goes in.
        Senator Lautenberg. It's not dissimilar from the double
    hull?
        Mr. Hamberger. It's not specifically a double hull, but----
        Senator Lautenberg. I understand.
        Mr. Hamberger. The concept is the same, yes, sir.
        Senator Lautenberg. Mr. Timmons, you folks are looking at
    PTC, I'm sure. What other technological improvements are the
    Short Lines looking at in order to improve safety?
        Mr. Timmons. Well, sir the ability for us to enhance and
    capitalize on detectors, weight size detectors for hot bearings
    journals, GPS for tracking hazardous materials; better
    dispatching and reporting systems that are done electronically.
        There are about 556 small railroads, many of which are
    very, very small, measured in less than ten mile increments.
    Some are very, very sophisticated and are seven, eight and nine
    hundred miles. The very, very small railroads are marginally
    profitable. And so the challenge for them and the challenge for
    us is to provide technology solutions that will permit them to
    interface and connect with the major railroad's systems and
    their Class II and Class III brethren.
        So, there's a whole host of both electronic reporting
    measures and safety measures that would give us an indication
    of the serviceability and the reliability.
        Senator Lautenberg. Those are included in the plans for the
    industry these----
        Mr. Timmons. Yes, sir, indeed they are.
        Senator Lautenberg. I wanted to get back to something that
    Mr. Wytkind raised because from the research that we've done.
    We hear that there are lots of complaints in the area of
    harassment and intimidation of employees. Now, Mr. Wytkind, do
    you see FRA doing what it can or as much as it can do to
    prevent harassment and intimidation and to punish those who
    violate FRA regulations?
        Mr. Wytkind. No, I don't see them doing enough. Mr.
    Chairman, I do not see them doing enough. There are a number of
    reports that I've read that we've provided the Committee that
    provide overviews of specific instances where workers are
    harassed and intimidated in cases involving, for example,
    personal injuries on the job.
        But I believe the only way that this is going to be
    addressed is if Congress speaks very forcefully with strong
    whistleblower protections, as you have in many other pieces of
    legislation up here over the years. And make it very clear that
    if a worker deals with an injury, a security risk or a safety
    risk on the job; he or she will not face intimidation,
    harassment or any employer reprisal as a result of speaking out
    on these issues.
        The Federal Railroad Administration could be far more
    vigilant about it. They unfortunately are not unless a specific
    case is brought to their attention. And then they go through
    their investigative process. But the bottom line is we think
    Congress has to speak on this issue.
        Senator Lautenberg. I have several other questions which I
    will submit in writing. I close with this one for general
    response. There are lots of retirements. We've heard that for a
    long time about railroad employees. And what suggestions do we
    have for improving training for the railroad employees that are
    new and ensuring an adequately trained rail workforce? That's
    the critical issue.
        Mr. Wytkind. Well, one of the things that I've been working
    on--I appreciate that question, Mr. Chairman, is over many
    years we've tried to get workers more training. By giving them
    true classroom style, on the job training, not just this one-
    size-fits-all or send them home with a video. Which I think was
    a big issue we discussed in this Committee in the aftermath of
    9/11.
        And I hear very specific reports from my member unions that
    workers are not receiving real training in the way that you and
    I would think real training is. A worker comes on the job and
    the railroad industry relies on his or her peers to get that
    worker ready for the job that he or she performs. We think
    there have to be very specific, very specific mandates that
    this training be comprehensive, that it be uniform, that it not
    just simply rely on the worker to worker, kind of peer training
    program that workers are allowed on the job to be given true
    classroom style training.
        And if you pivot that to the security arena that becomes a
    really, really important task because if you have workers that
    really do not know what they are supposed to do if there is a
    security breach on the job; which I hear all the time from my
    member unions and their local people then you've got a real
    problem. That this industry, despite its profit, isn't dealing
    with, I believe, adequately.
        Senator Lautenberg. Are you comfortable that FRA is the
    agency to monitor these complaints and criticisms?
        Mr. Wytkind. I think that's fine as long as the Congress
    puts very specific requirements in the law that allow--
    establishes such standards under which the FRA----
        Senator Lautenberg. We can write the laws--enforcement of
    laws that we write is often a question.
        Mr. Wytkind. Well, and I think they don't have enough
    inspectors, which is what I said in my submitted testimony. We
    believe the hiring of more inspectors is needed systemwide at
    the Federal Railway Administration which would help in
    monitoring a lot of the safety compliance questions.
        Senator Lautenberg. Mr. Hamberger, you look like you want
    to comment on this.
        Mr. Hamberger. I'm not much of a poker player. This is
    about the fifth time, Mr. Wytkind and I have testified next to
    each other this spring. And I sometimes believe we're in
    parallel universes.
        My members, of course, do not believe there is a culture of
    harassment and intimidation. And in fact, just the opposite
    that there is a culture of safety. There are rules on the books
    for whistleblower protection. And when a case comes up and if a
    manager has made a transgression that manager is reprimanded
    and punished.
        With respect to training there are training regimes that
    have to be submitted to the FRA for engineers that the FRA can
    and has to review. And UTU, the conductors on the locomotive
    have a 6-month training program that was developed with UTU
    involvement.
        And again when we talk about the new employees coming into
    the industry the facts tell you that they must be trained
    properly because our accident rate continues to improve. Our
    employee injury rate continues to improve. With respect to
    security training, we have developed through Rutgers
    University, a fine university, I might add, and the National
    Transportation Institute modules for security training. We've
    submitted that to the FRA, to TSA. They have approved it.
        I believe the Rail Security bill has training in it. You
    know, great. You know, we want our people to be trained. We do
    believe that the training that we do will meet the requirements
    of TSA and FRA.
        Senator Lautenberg. We thank you. Mr. Timmons we won't
    close you out, your response.
        Mr. Timmons. Give me just a moment, sir. And let me say
    that I think this is a good news story for the small railroad
    industry. And as you are--as you commented and are precisely
    correct, by 2012 there will be a large reduction in railroad
    eligible retirees; 80,000 will reach 60 years of service--60
    years of age and 30 years of service.
        The good news for the Short Line industry is that there is
    some trickle down in that regard. As they retire from the Class
    I industry many of those people migrate into the small railroad
    community. In addition to the training initiatives and there
    are three or four of them that are afoot. Primarily the Class
    Is do a lot of training, formal training of small railroads
    through their programs as their interchange partners.
        The Short Line Association as well as the FRA has partnered
    in a number of training programs on an annual basis both
    specific programs and broader based programs related to safety
    and hazardous material. And of course we're partnered with the
    National Academy of Railway Sciences. Along with Internet-based
    programs we believe that we've got a fairly reasonable approach
    to training new employees coming into the industry and
    capitalizing on those that are actually retiring at age 60.
    More to be done, a lot more seminar work that we're engaged in
    on an annual basis, but I think it's a reasonably good story
    considering the size and the tempo of our organization.
        Senator Lautenberg. Thank you each. We'll be considering
    your testimony very seriously as we start to do a new FRA
    reauthorization. Thank you.
        [Whereupon, at 12 p.m. the hearing was adjourned.]
                                A P P E N D I X

    Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
                                   Jo Strang
        Question 1. If given the authority to set hours-of-service
    standards via the rulemaking process, what reason do you have to
    believe that the Administration will be able to devise a standard that
    will improve safety and withstand judicial challenge, unlike the hours-
    of-service approach in the trucking industry?
        Answer. Section 307 of the Administration bill would insulate
    regulations issued under that section from judicial review. (In
    particular, please see proposed 49 U.S.C. 20158(d) in section 307(c) of
    the bill.) We have requested that language to avoid delays in
    implementing this important initiative.
        However, even in the absence of this restriction, we would pursue
    implementing this important initiative if given the authority. Several
    reasons lead FRA to firmly believe that the agency will be able to
    devise a standard that will improve railroad safety and, we hope, will
    withstand judicial challenge.
        First, if the Secretary is granted railroad hours-of-service
    rulemaking authority, FRA in exercising that authority would, of
    course, have the benefit of hindsight. In any future hours-of-service
    rulemaking, FRA would be able to use past adverse decisions to avoid
    similar alleged procedural pitfalls.
        Second, we have proposed to use FRA's Railroad Safety Advisory
    Committee (RSAC) to fully involve all concerned stakeholders,
    especially labor organizations and the carriers, in the rulemaking
    process. Under this process, all affected stakeholder groups are
    expected to reach consensus on the proposed rulemaking, increasing the
    likelihood of acceptance. This consensus-based process should result in
    an effective hours-of-service regulation that will allow flexibility
    within railroad industry to adjust individual fatigue risk management
    systems as times or conditions, or both, change.
        Third, standards developed in the RSAC process will be based on a
    detailed consideration of the science that underlies circadian rhythms,
    sleep, and alertness specific to the railroad industry, thereby
    reducing the likelihood that any judicial challenge could be
    successful. FRA has accumulated a considerable body of scientific
    information about work schedules, fatigue, operator performance,
    technology to manage fatigue, and accidents in the railroad industry
    over the past 10 years. This information will help the RSAC make
    informed decisions about how to balance the operational needs of
    carriers against operators' need for adequate rest and the public
    safety. More detail about available research can be found on the FRA
    website at--http://www.fra.dot.gov/downloads/safety/
    fatiguewhitepaper112706.pdf.
        Fourth, FRA would propose to take a fatigue prevention and
    management approach to this task--focusing on education and awareness,
    as well as hours-of-service. Again, this will ensure that the
    regulatory process is well aligned with the science of fatigue
    management.

        Question 2. In your opinion, what is preventing Class I railroads
    from implementing Positive Train Control systems nationwide?
        Answer. FRA recognizes that it may seem that it is taking a long
    time for railroads to implement Positive Train Control (PTC) systems on
    their properties. The fact is, however, that a great deal has been done
    and is currently being done toward this end. Also, ongoing development
    and implementation of these systems continues to increase at a quicker
    pace as more is learned and experience is gained, making development
    and implementation of the systems less onerous a task, as well as
    various benefits are realized. FRA believes continued and perhaps more
    aggressive growth in the implementation of these systems is highly
    likely. A summary of the existing projects follows below:

       There are currently 12 different PTC system projects.

       They involve a total of eight different railroads and are
            located in 15 different states.

       Current test projects consist of a total of 2,333 route
            miles and a total of 2,618 track miles.

       BNSF Railway Company alone has plans for implementing its
            Electronic Train Management System (ETMS) on 35 subdivisions.

       The Union Pacific Railroad Company is looking at its PTC
            system being implemented initially on four major subdivisions,
            with longer-term goals of its being expanded systemwide.

       The Northeast Illinois Regional Rail Corporation, or Metra,
            is planning a PTC system on it Rock Island line.

       CSX Transportation, Inc., the Norfolk Southern Corporation
            railroads, the Alaska Railroad, and the Ohio Central Railroad
            Company are all involved in the development of PTC systems on
            their lines.

        It should be noted that PTC is a reality on much of the Northeast
    Corridor, including all segments where train speeds exceed 125 mph,
    under an FRA order. Between New Haven, Connecticut, and Boston,
    Massachusetts, all trains (intercity passenger, commuter and freight)
    run equipped with the Advanced Civil Speed Enforcement System (ACSES)--
    which is integrated into the automatic cab sign and automatic train
    control system. Amtrak continues to develop the capabilities of that
    system, but its fundamental elements provide for full PTC
    functionalities. Amtrak's Incremental Train Control System currently
    supports operations up to 95 mph, and Norfolk Southern freight trains
    on the line are also equipped.
        Additional details are available on the ``Positive Train Control
    (PTC) Project Chart,'' which I would like to submit for the record.
        On the other hand, some of the main reasons that progress has not
    been faster are as follows:

       the costs of PTC, which far exceed its safety benefits;

       railroads' limited funds available for capital investment;

       the belief on the part of many in the industry that the
            business benefits of PTC can be captured by other, less costly
            technology;

       the absence of interoperability (e.g., locomotives equipped
            with one type of PTC that works on a line equipped with that
            type of PTC cannot use their PTC on certain other lines
            equipped with a different type of PTC); and

       the concern that systems may not be reliable and thus could
            exacerbate congestion.

        The impediments to implementation of PTC are described in somewhat
    greater detail in DOT's views letter on Section 601 of H.R. 2095 as
    introduced; that section would in effect mandate implementation of PTC
    systems on the main lines of Class I railroads by the end of 2014.
    Although as reported by the full House Transportation and
    Infrastructure Committee, the Section allows the Secretary to extend
    the implementation deadline for up to 24 months, FRA thinks that the
    proposed mandate may still be premature. In particular, DOT continues
    to have three main concerns about the provision.
        First, as reflected in the FRA's report to the Committees on
    Appropriations entitled Benefits and Costs of Positive Train Control
    (August 2004) and in FRA's letter to Congress dated May 17, 2000
    (enclosing the RSAC's report entitled Implementation of Positive Train
    Control Systems (September 8, 1999)), the direct safety benefits of PTC
    systems would fall far short of justifying the large investments
    required to deploy the technology. Business benefits will be required
    to support the investment, and if they are there, no mandate should be
    required. If they are not, then the process of technology integration
    has not matured to the point that it should be mandated, there being
    insufficient justification related to safety.
        Second, as described in these reports, the Department has actively
    supported deployment of PTC through research and demonstrations,
    technical assistance, and issuance of performance-based regulations,
    and the railroads have been actively exploring the use of such systems,
    but much work remains to be done in developing the systems and in
    improving standards for interoperability. We believe strongly that the
    technologies that make up PTC should be deployed as they become market-
    ready, and not before.
        Finally, much of the benefit of PTC is expected to come from
    equipping passenger trains and routes. However, these benefits are
    unclear, as is whether these benefits would outweigh the costs of
    implementing the system, which are also unknown.
        It should be noted that recent months have brought new optimism
    that the major freight railroads will move forward with deployment of
    interoperable PTC. There appears to be a convergence of major freight
    railroads around the basic technology that supports the BNSF Railway's
    ETMS. As you know, this past December FRA approved the Product Safety
    Plan for ETMS Configuration I as well as informational filings to test
    for several of the other PTC projects ongoing. (See 49 C.F.R. part 236,
    subpart H.) The next steps for further deployment of PTC are for FRA,
    the railroads, and the product vendors to continue to work in a
    cooperative manner toward development of successful safety
    documentation supporting continuing implementation of PTC. Major
    technical obstacles still must be overcome, including management of
    radio frequency spectrum so that system functions in a timely way and
    supports the necessary complement of on-board and wayside units.

        Question 3. The NTSB has said the Home Valley, Washington accident
    was caused by the failure of the railroad to respond to reports of
    ``rough rides,'' which is a sign of defective track conditions. Are
    railroads allowing their own track inspectors enough time to perform
    inspection duties? Is this a problem in the busy Northeast Corridor?
        Answer. In the case of the April 3, 2005, Home Valley, Washington,
    derailment, some local personnel of the BNSF Railway Company ignored
    multiple notifications that the track was deteriorating. Train crews
    had reported the location, a carrier geometry car had marked the
    location, and an FRA inspector had noted the location while riding an
    Amtrak train several days before the accident. Interviews taken
    following the accident show that the local personnel did not take any
    action to correct the conditions. The personnel involved were
    terminated following the accident investigation. The track segment
    involved in the Home Valley accident normally receives four inspections
    per week, a frequency that exceeds the FRA minimum inspection
    requirements. These inspections would provide the inspectors with
    adequate time to locate and properly identify noncomplying conditions
    and then bring them into compliance or notify the proper carrier
    management for any follow-up actions, or both.
        The railroad industry has been having increased traffic, requiring
    the railroads to be more efficient in their use of available track time
    to inspect, repair, and maintain track, as well as bridges and other
    wayside structures. The railroads are utilizing automated inspection
    technologies to increase their inspection efficiency and focus their
    track inspector's activities. The technologies include track geometry
    cars, internal rail defect test cars, gage restraint measurement
    systems, and vehicle/track interaction monitors mounted on locomotives.
    In addition, new technologies are being developed to assist in focusing
    the inspector's activities, such as high-speed, high-resolution optical
    systems to detect failed joint bars and connections, and ground-
    penetrating radar systems to detect developing subgrade problems.
        The Northeast Corridor is considered a high-speed corridor, and the
    track and vehicles are treated as an interacting system. The FRA Track
    Safety Standards require the track to be manually inspected twice a
    week. The manual inspections are accomplished by inspectors walking or
    riding a hi-rail vehicle over the track. FRA inspectors periodically
    accompany the railroad inspectors and indicate that adequate inspection
    time is available.
        Because the higher speeds require that the track and vehicle be
    treated together as a system, the Track Safety Standards also require
    that the high-speed track classes (Classes 6-9, track used for the
    operation of passenger trains and certain freight trains at maximum
    speeds ranging from 110 mph to 200 mph) receive various forms of
    automated inspections depending on the track class. Among the automated
    inspections required for high-speed track classes are inspections
    using--

       An instrumented car measuring dynamic vertical and lateral
            loads on the carbody and trucks;

       An instrumented car measuring dynamic vertical and lateral
            loads on the wheels;

       A track geometry measurement system; and

       A gage restraint measurement system.

        The combination of manual and automated inspections allows Amtrak
    to identify and focus inspection and maintenance resources on
    deteriorating areas before they reach the point of noncompliance.
        In addition, all passenger vehicles operating on Class 7-9 track
    (from 125 mph to 200 mph) are required to have a permanently installed
    lateral accelerometer on each truck frame for purposes of measuring
    truck hunting accelerations. Truck hunting can result from car
    suspension wear or track anomaly or both. This instrumentation assists
    the track inspector in locating possible deteriorating track
    conditions.
        Track time to conduct inspections is finite. As train traffic
    increases, the available inspection time will constrict. Quality
    inspections to identify deteriorating conditions are crucial for safe
    train operations. Therefore, we expect to see railroads implement
    additional technical improvements that will help the railroads'
    inspectors to focus their efforts to accomplish their duties.

        Question 4. I understand that the FRA is reviewing safety
    procedures to protect pedestrians at rail locations where there are
    multiple at-grade crossings, especially those near train stations. What
    is the status of this review, and how close is the FRA to developing
    safety standards to protect pedestrians?
        Answer. Under the DOT Grade Crossing Safety Action Plan (Action
    Plan) issued in June 2004, FRA has the responsibility to develop and
    make available a compilation of pedestrian warning devices in use at
    grade crossings of all types, including pedestrian-only crossings over
    railroad tracks. (I should note that FRA's activities in this area are
    intended not to establish safety standards but instead to provide a
    tool to be used by local authorities when addressing pedestrian safety
    issues at crossings; local authorities are best placed to make the
    decisions necessary to enhance safety.) FRA has worked to gather
    information on any signs, signals, pavement markings, or other devices
    used to enhance the safety of pedestrians at grade crossings. State
    DOTs and rail transit operators have made several submissions, which
    have included background information and illustrations. These are
    presented in the draft compilation so that the larger grade crossing
    safety community might benefit from the work of others in this
    important area. A draft of the compilation of pedestrian warning
    devices has been completed and been fully reviewed within FRA. The
    compilation should be published and available before the end of Fiscal
    Year (FY) 2007.
        Meanwhile, the Railroad Safety Advisory Committee's Passenger
    Safety Working Group has also established a task force to address
    general passenger safety issues, including boarding and alighting from
    trains and moving safely in passenger stations. That task force is
    currently working on the issue of platform gaps, but the task force
    intends shortly to take up the issue of pedestrian safety at
    pedestrian-only crossings in relation to ``second train incidents'' in
    and around passenger stations. A ``second train incident'' involves a
    situation in which a pedestrian is injured or killed when trying to
    cross two or more sets of railroad tracks at a pedestrian-only crossing
    because of the movement of a ``second'' train traveling on one track
    typically after the ``first'' train has stopped and already activated
    the crossing warning system. Initially, the task force intends to
    document the extent and nature of the problem and to evaluate best
    practices that can be brought to bear to reduce these incidents,
    including the use of ``second train coming'' warning systems and
    pedestrian awareness efforts.

        Question 5. What are FRA's plans to begin working with the other
    four states (CA, IL, IN, OH) identified by the Inspector General that
    continue to have the most grade crossing collisions and when FRA will
    start doing so?
        Answer. First, as background, FRA, the Federal Highway
    Administration (FHWA), and the State of Louisiana have already
    developed and put in place, a state-specific crossing safety plan for
    Louisiana, and FRA and FHWA are currently working with the State of
    Texas to develop a crossing safety plan for that State, which should be
    completed by the end of FY07.
        Let me address the four States mentioned in your question. FRA has
    had initial discussions with the Illinois Commerce Commission, which
    has agreed to participate in the development of a plan for that state.
    Formal planning meetings with Illinois agencies will begin before the
    end of FY07. Based on experiences with the previous plans, it is
    anticipated that the Illinois plan will be completed by the end of
    FY08. FRA will approach the appropriate State agencies in California
    and Ohio no later than the second quarter in FY08 to solicit support
    for the development of plans in these states. The state agency in
    Indiana will be approached when the State plan for Illinois is
    completed. This should be toward the end of FY08 or the beginning of
    FY09.

        Question 6. How does FRA plan to proceed in working with the FHWA
    to develop model legislation for states that will address all types of
    sight obstructions at grade crossings, especially those that are not
    protected with automatic gates and flashing lights?
        Answer. FRA and FHWA will establish a joint working group to
    develop model State legislation addressing sight distances at grade
    crossings equipped with passive warning signs. The joint working group
    will review existing State statutes that address sight distance to
    determine the best practices in place. The model legislation would be
    developed using the best practices and would be distributed to all
    States, with the goal that they consider the legislation and take
    appropriate action as a result.

        Question 7. In the FRA's written response to the Inspector
    General's grade crossing report that was issued on May 3, the
    Subcommittee would like to know FRA's plans to ensure that railroads
    have consistently issued a violation and assessed a civil penalty each
    time a railroad fails to report a grade crossing collision, as
    required?
        Answer. FRA plans to amend its Statement of Agency Policy at title
    49 of the Code of Federal Regulations (49 C.F.R.) part 209, appendix A,
    the agency's General Manual, and the agency's Operating Practices
    Compliance Manual to make obligatory the submission of violation
    reports for each detected violation of 49 C.F.R. part 225, when the
    violation in question is a clear-cut failure to report (i.e., not
    involving any question with regard to interpretation of the regulation
    or sufficiency of the facts constituting the alleged failure), subject
    to application of considerations mandated by the Small Business
    Regulatory Enforcement Fairness Act (SBREFA) where relevant.

        Question 8. I understand the FRA has expressed reservations about
    assessing a civil penalty each time a railroad fails to report a grade
    crossing collision. Why?
        Answer. Since mid-2004, FRA has had in place a verbal instruction
    that each clear-cut violation of an accident/incident reporting
    obligation--whether it relates to a crossing collision, employee
    injury, or train accident--should, absent special circumstances, be the
    subject of a proposed civil penalty.
        However, it should be noted that use of civil penalty authority is
    subject to the general guidance contained in 49 CFR part 209, appendix
    A, which specifies criteria to be applied in making these
    determinations, and appendix C, which addresses small entities, as
    required by the Regulatory Flexibility Act and SBREFA. So, for example,
    should an FRA inspector encounter a single mistaken failure of a small
    railroad to report a grade crossing collision (e.g., out of confusion
    with the monetary threshold required for rail equipment accident/
    incidents), and should the railroad immediately file a report as
    required, FRA might omit use of a civil penalty out of deference to the
    Congressional policy related to small entities and in recognition of
    the fact that the circumstances are unlikely to be repeated.
        It also should be noted that FRA has the right to cite a railroad
    for each day that a violation continues. This can represent a
    potentially very high liability for each accident/incident not timely
    reported. FRA will utilize this mechanism (citing for multiple days) to
    assess more substantial penalties where railroad conduct is persistent
    and without substantial justification.
                                   Attachment

                                                 PTC Projects Nationwide
                                                 [Current and Proposed]
    ----------------------------------------------------------------------------------------------------------------
                                                                                                  Route      Track
               FRA Region               State Location        RR             System Name          Miles      Miles
    ----------------------------------------------------------------------------------------------------------------
    1                                          MA, RI, CT, NJAmtrak                         ACSES/A177        376
                                                 DE, MD      Amtrak                         ACSES/AT27         54
    ----------------------------------------------------------------------------------------------------------------
    Total                                             6           1                         1      204##      430##
    ----------------------------------------------------------------------------------------------------------------
    2                                                OH           OCRS         Train Sentinel      356        356
    3                                                 SC, GA, TN   CSX                       CBTM  273        273
                                                      SC         NS                        OTC     120        120
    ----------------------------------------------------------------------------------------------------------------
    Total                                             3           2                         2      393        393
    ----------------------------------------------------------------------------------------------------------------

    4                                           MI       Amtrak                        ITCS      74**         84**
                                                IL           UP                     NAJPTC#     120          120
                                                IL         BNSF                    ETMS I       132          132
                                                IL        METRA                      ETMS        34           75
    ----------------------------------------------------------------------------------------------------------------
    Total                                        2            4                         4       358          409
    ----------------------------------------------------------------------------------------------------------------
    5                                       TX, OK         BNSF                   ETMS II       205          217
    6                                           NE           UP                          CBTC-VT175          367
    7                                           --         None                        --         0            0
    8                                           AK       Alaska                          CAS    531          541
                                        WY, WA, ID           UP                          CBTC-VT168          198
                                            ND, MT         BNSF                   ETMS I*       153          153
    ----------------------------------------------------------------------------------------------------------------
    Total                                        6            3                         3       852          892
    ----------------------------------------------------------------------------------------------------------------
    Grand Total                                 21            8                        13     2,545        3,066
    ----------------------------------------------------------------------------------------------------------------
    # This system moved to the Transportation Technology Center, Inc., at Pueblo, CO, for further development.
    ## Currently in revenue service, supporting speeds up to 150 MPH. Two additional ACSES segments, engineered but
      not funded, are not included.
    * Upon planned installation on BNSF's Hettinger Subdivision.
    ** Assuming that ITCS is extended another eight miles to Indiana State line. ITCS is currently installed on 66
      route miles (76 track miles). ITCS track miles include six controlled sidings totaling 10 miles.

    Acronyms for PTC Systems in Chart
        ACSES/ATC--Advanced Civil Speed Enforcement System/Automatic Train
    Control
        CBTM--Communication Based Train Management system
        OTC--Optimized Train Control system
        ITCS--Incremental Train Control System
        NAJPTC--North American Joint Positive Train Control system
        ETMS I--Electronic Train Management System configuration I
        ETMS II--Electronic Train Management System configuration II
        CBTC-VTMS--Communication Based Train Control-Vital Train Management
    System
        CAS--Collision Avoidance System
                                     ______

    Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
                             Hon. Robert L. Sumwalt
        Question 1. Given the trucking hours-of-service experience,
    shouldn't there be some limitations on the authority given to the
    Administration--to prevent them from weakening the hours-of-service
    rules currently in law?
        Answer. Minimum periods of undisturbed rest time and maximum on
    duty time alone do not take into consideration other factors that can
    contribute to both acute and cumulative fatigue, such as scheduling
    practices, shift rotations, and the natural circadian rhythm. The
    Federal Railroad Administration needs the authority to regulate train
    crew fatigue by using scientifically based research.

        Question 2. In your opinion, what is preventing Class I railroads
    from implementing Positive Train Control systems nationwide?
        Answer. Requirements for the installation of positive train control
    systems have been on the National Transportation Safety Board's list of
    Most Wanted Transportation Safety Improvements for 17 years. Positive
    Train Control systems provide a safety redundancy to override human
    mistakes. In the past 10 years, we have investigated 52 train
    collisions and over-speed accidents that could have been prevented if
    positive train control systems had been installed. We do not believe
    that there are obstacles preventing Class I railroads from implementing
    positive train control systems and believe that it is time to establish
    mandates for the installation of these systems.

        Question 3. The NTSB has said the Home Valley, Washington accident
    was caused by the failure of the railroad to respond to reports of
    ``rough rides,'' which is a sign of defective track conditions. Are
    railroads allowing their own track inspectors enough time to perform
    inspection duties? Is this a problem in the busy Northeast Corridor?
        Answer. Certainly, track time, inspection techniques and the number
    of inspectors available are all factors that can affect the adequacy of
    inspection activities. During our investigation of the Home Valley,
    Washington accident, we learned that because of the high amount of
    train traffic, approximately 57 trains a day over 58 miles of the
    inspector's assigned territory, the track inspector said that he had
    about \1/2\ hour or less to get from station to station while
    inspecting track from a hi-rail vehicle. Stations were about 10 to 15
    miles apart. The track inspector stated that on occasion he conducted a
    walking inspection of the curves but that it had become too difficult
    after he lost his helper. The Safety Board determined that the BNSF
    Railway Company's response to multiple reports of rough track
    conditions was inadequate and recommended that the BNSF, as part of its
    track inspector audit program, determine whether inspectors are
    provided adequate track time to perform their duties and take
    corrective action if necessary.
        The Safety Board has not investigated any accidents on the
    Northeast Corridor where track time for inspectors was found to be a
    safety issue.
                                     ______

     Response to Written Question Submitted by Hon. Frank R. Lautenberg to
                                  Kurt W. Hyde
        Question. Your office reported to the full Committee that railroads
    should take measures to ensure railroad police forces are used in ways
    that do not harass and intimidate employees. The Class I railroads have
    stated they are in compliance with your recommendations. Do you agree
    that they are in compliance? Can you check and report back to us?
        Answer. In response to the question, OIG's Chicago Office reached
    out to John F. Wetzel, Vice President, Association of American
    Railroads to ascertain information regarding the Class I freight
    railroads implementation of OIG recommendations. Wetzel provided the
    following summary response:

       All Class I freight railroads, BNSF Railway, CN, Canadian
            Pacific, CSX, Kansas City Southern, Norfolk Southern, and Union
            Pacific--have adopted ``specific guidelines for the conduct of
            . . . investigations'' involving their employees, as
            recommended in the November 2004 OIG report. In addition,
            Amtrak had previously adopted such guidelines, as your report
            noted.

       With respect to the two smaller railroads studied, Wetzel
            related it was his understanding that the Florida East Coast
            has adopted such guidelines, although that railroad is not a
            member of the AAR. He added he will continue to reach out to
            the Indiana Harbor Belt, also a non-AAR member.

        Based on this response and the supporting information provided (see
    attached), we feel the that all AAR-member railroads have taken the
    steps recommended in the IG's report. Additionally, we will reach out
    to the non-AAR members to determine at what level they have or intend
    to implement the OIG recommendations.
                                     ______

    Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
                                 Edward Wytkind
        Question 1. Do you believe the FRA could accomplish what the
    railroads and labor could not collectively agree upon--that is a fair
    and effective update to the hours-of-service law? How else do you
    propose to address employee fatigue in the railroad industry?
        Answer. It is a well-established fact that fatigue is a cause of
    accidents in the railroad industry. Labor organizations and government
    witnesses, including the FRA and NTSB, have testified before Congress
    on numerous occasions to this end. The core purpose of the FRA is to
    regulate safety in the rail industry. As such, we do believe it is
    necessary to grant the FRA the authority to regulate fatigue; however,
    the statutory protections embodied in the hours-of-service law are
    important and must be retained. Further, there are several areas which
    should be addressed immediately. As transportation labor has testified,
    limbo time should be eliminated in its entirety. Since 1996, the
    railroad carriers have abused the ``off-duty'' time spent in
    transportation to a designated terminal. Similarly, railroad signal
    workers are regularly forced to work beyond their hours-of-service
    limits due to a routinely-abused four-hour ``emergency'' extension of
    their 12 hour work day. The four-hour emergency provision should be
    repealed. Additionally, workers' rest time should not be interrupted by
    communications from their employers. Despite the 24/7 operation of the
    railroad industry, with the advances in technology and communication
    devices there is no reason railroad workers should not have advance
    notice of their schedules and be able to plan accordingly for rest,
    commute and personal time. Adequate work-rest periods must also be
    established by amending the Hours of Service Act. Finally, workers must
    not face retribution if they are unavailable to work due to extreme
    fatigue. Railroads' imposed attendance policies which require employees
    to be on-call up to 95 percent of the time create unsafe conditions on
    our Nation's railroads and are egregious and unfair to employees.

        Question 2. Many railroad workers have lost their lives or been
    injured working in the rail industry. As this Subcommittee begins to
    draft legislation on rail safety, what are the most critical issues
    which must be addressed from the employees' perspective?
        Answer. Because the laws governing rail safety have not been
    reauthorized in over a decade, the safety of railroad workers has been
    compromised. As I mentioned in my written statement and in those
    statements submitted by TTD member rail unions, there are a number of
    issues that must be addressed. Any worthwhile rail safety bill must
    include strong whistleblower protections for workers; stricter
    enforcement of rail safety laws and regulations and stronger penalties
    against companies and employers that violate safety laws; improved and
    mandatory worker training programs; track safety improvements
    especially in the area of dark territory; reforms of the hours-of-
    service laws to eliminate ``limbo'' time and the abuse of ``emergency''
    time for signal workers, prevent unnecessary communication with workers
    during rest time, and require adequate work-rest schedules; and
    prohibit the outsourcing of railroad inspections and operating
    responsibilities at our southern border.

        Question 3. Is the FRA doing as much as it can to prevent
    harassment and intimidation of employees and to punish those who
    violate FRA regulations?
        Answer. No. There continues to be a culture of intimidation and
    harassment that permeates the railroad industry like no other. It is
    routine for workers to be ``discouraged'' from reporting accidents and
    from seeking appropriate medical attention. H.R. 2095, the Federal
    Railroad Safety Improvement Act of 2007, includes provisions--which we
    strongly endorse--to provide strong whistleblower protections for
    workers who report safety violations on the job (Title II) and increase
    enforcement and penalties against employers who violate safety
    regulations (Title V). Further, we support the provision (Section 606
    as amended) in H.R. 2095 which provides for prompt medical attention
    for an injured worker.

        Question 4. Given the expected impending retirements of so many
    long-time railroad employees, what suggestions do you have for
    improving training for railroad employees and ensuring an adequately
    trained rail workforce?
        Answer. Training programs for basic proficiency and safety as well
    as security must be made mandatory for all crafts and classes of
    railroad workers--including contract workers. Historically in the
    railroad industry it is on the job peer-to-peer training rather than
    classroom or formal apprenticeship programs that is the norm. As
    looming retirements of an aging workforce deplete the ranks of
    experienced workers, the industry must respond by instituting programs
    to adequately train their workforces. Unfortunately, history also shows
    that it is exceedingly unlikely that the carriers will institute proper
    training curricula without a legal directive. Therefore, we urge you to
    include a training mandate for both new hires and recurrent programs
    for existing employees (and contract workers) in any rail safety
    legislation. Further, certification requirements for certain crafts
    would also improve overall rail safety. Currently, locomotive engineers
    must be certified. Certification requirements which would mandate
    competency standards for safety-sensitive groups such as conductors,
    dispatchers, signal workers, carmen, electricians and on-board
    personnel should be included in any rail safety bill.
                                     ______

    Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
                              Edward R. Hamberger
        Question 1. Do you believe the Federal Railroad Administration
    could accomplish what the railroads and labor could not collectively
    agree upon--that is a fair and effective update to the hours-of-service
    law? How else do you propose to address employee fatigue in the
    railroad industry?
        Answer. Railroads are amenable to a careful reexamination of the
    Hours of Service Act's statutory limitations. Changes in the HSA might
    help reduce fatigue in the rail workplace, but they need to be
    carefully considered to maximize the probability that they will
    actually attain the goals they are designed to achieve.
        Specifically, railroads do not object to several changes to
    existing employee hours-of-service regulations. First, railroads do not
    object to prohibiting train and engine and signal employees from
    working unless they have had at least ten consecutive hours off duty
    (up from 8 hours under existing law) during the prior 24 hours.
    Railroads do not object to a requirement that those 10 hours should be
    free of non-emergency phone or page communications from railroads.
    Second, any employee who works 12 consecutive hours on duty, and then
    at least 1 hour of limbo time,\1\ would receive at least 14 hours of
    off-duty time once he or she is released from duty. Third, rail train
    and engine employees would be subject to a new monthly maximum of 276
    hours on duty, and even though limbo time is not on-duty time, it would
    be included in those 276 hours.\2\ Hours beyond this new maximum, which
    is consistent with permissible hours for other modes of transportation,
    would be a violation of the HSA.
    ---------------------------------------------------------------------------
        \1\ ``Limbo time'' refers to the time that crews spend waiting for
    transportation and the time they spend being transported to where they
    are released from duty. Limbo time counts as neither time on-duty nor
    time off-duty.
        \2\ KCS and CN do not agree with this position, and Amtrak abstains
    on the issue.
    ---------------------------------------------------------------------------
        Together, these measures not only significantly reduce the maximum
    on-duty time under current law, but they also strike a balance between
    the concerns that limbo time contributes to fatigue and the realities
    of the unpredictability of railroad operations.
        The above changes reflect the railroad industry's preferred
    approach. Failing use of this approach, railroads would support a
    transfer of the hours-of-service authority to the FRA, with reliance on
    FRA's professional judgment.

        Question 2. Locomotive cab alert systems and automatic devices to
    stop trains have been in place in portions of the railroad industry for
    many years. What is it taking so long for the industry to go a step
    further to fully implement ``Positive Train Control?''
        Answer. Positive Train Control has been and continues to be a tough
    technical challenge. Not only do systems have to be interoperable when
    implemented as traditional train control systems are today, but they
    also need to improve safety while not degrading system capacity or
    throughput. The most difficult task is to incorporate predictive
    braking systems that are tied to current train control systems (e.g.,
    signals) and do so to absolute stop (zero speed). Alerter systems are
    stand alone devices not connected in any way to the train control
    system and are much simpler than PTC. They rely on time based actions
    from the locomotive engineer to make sure he is performing a function
    to control the train and if not then the train is stopped. With the PTC
    system precision is required or there is an operational (capacity)
    impact if the system does not meet the precision needed--which can
    ripple through the entire network.
        Developing and implementing the precision required for
    ``predictive'' braking systems as described above has been and
    continues to be a very difficult task. In the meantime the train
    collisions per million train miles have dropped 86 percent since 1980,
    so the fault space is much less. That improvement brings into question
    whether PTC can be cost effective (much smaller improvement in safety)
    and does not introduce risks that exceed the potential benefit. New
    technology always has some new risks when initially introduced. The FRA
    rule requires those risks to be assessed and this is not a trivial
    exercise.

        Question 3. Given the expected impeding retirements of so many
    long-time railroad employees, what suggestions do you have for
    improving training for railroad employees and ensuring an adequately
    trained rail workforce?
        Answer. Railroads can always make improvements to our training
    programs and are constantly reexamining them. However, we believe our
    training programs are fundamentally sound. Despite the new influx of
    employees in our industry, our safety record is outstanding. We are
    pleased that 2006 was the safest year ever. According to FRA data, the
    rail employee casualty rate in 2006 was the lowest in history, having
    fallen 81 percent since 1980. Likewise, the grade crossing collision
    rate in 2006 was the lowest ever, having fallen 76 percent since 1980.
    And from 1980 to 2006, railroads reduced their overall train accident
    rate by 69 percent. The train accident rate in 2006 was just
    fractionally higher than the record low.
                                     ______

    Response to Written Questions Submitted by Hon. Frank R. Lautenberg to
                               Richard F. Timmons
        Question 1. Aside from comprehensive Positive Train Control
    systems, what technological improvements are the short line railroads
    eying in order to improve safety?
        Answer.

       Continue to install signal equipment in dark territory.

       Install low cost AEI wayside readers to know where equipment
            and commodities (HazMat) are in real time.

       Press to continue to fund Freight Scope with upgrades for
            real time HazMat Tracking of all Class II/III HazMat movements.

       GPS locomotives are in Short Line service today permitting
            real time information on equipment location, dwell time, train
            speeds, delays, distance traveled, crew time, and alerts or
            problems in a specific area of railroad territory.

       Fuel-saving equipment and monitoring devices are under
            review as are emissions compliance technologies.

       Hybrid locomotives burning biodiesel and propane fuels are
            in use today providing environmentally sound equipment for EPA
            emissions standards.

        Question 2. Given the expected impending retirements of so many
    long-time railroad employees, what suggestions do you have for
    improving training for railroad employees and ensuring an adequately
    trained rail workforce?
        Answer.

       Department of Labor Grants for Promotion of the Rail
            Industry to potential young railroad workers.

       Initiatives to attract former military service members into
            rail service as a career. (Many are retiring or getting out of
            the military).

       Initiatives to attract Hispanic citizens into railroad
            educational programs and training leading to a career in the
            railroad industry.

       Grants or long term loans to those individuals interested in
            railroading as a career for enrollment in railroad company
            training programs, or private railroad academic or tradecraft
            programs at universities or colleges.

       Grants or long term loans for currently employed railroaders
            to return to educational institutions to enhance railroad
            knowledge, skills and abilities.