[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
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
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.

                                  
