[Senate Hearing 110-1167]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 110-1167
 
                RAILROAD SAFETY ENHANCEMENT ACT OF 2007

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



                                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

                               __________

                             JULY 26, 2007

                               __________

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





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       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 L. 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 July 26, 2007....................................     1
Statement of Senator Carper......................................    38
    Prepared statement...........................................    60
Statement of Senator Kerry.......................................    36
Statement of Senator Klobuchar...................................    41
Statement of Senator Lautenberg..................................     1
Statement of Senator Smith.......................................     3
Statement of Senator Thune.......................................    43

                               Witnesses

Boardman, Hon. Joseph H., Administrator, Federal Railroad 
  Administration, U.S. Department of Transportation..............     3
    Prepared statement...........................................     5
Hamberger, Edward R., President and CEO, Association of American 
  Railroads......................................................    12
    National Rail Safety Action Plan Progress Report 2005-2007...    45
    Prepared statement...........................................    14
Solow, David, CEO, Southern California Regional Rail Authority/
  Metrolink; Vice Chair--Commuter and Intercity Rail, American 
  Public Transportation Association (APTA).......................    30
    Prepared statement...........................................    32
Tolman, John P., Vice President and National Legislative 
  Representative, Brotherhood of Locomotive Engineers and 
  Trainmen, Division of the Rail Conference, International 
  Brotherhood of Teamsters.......................................    23
    Prepared statement...........................................    25

                                Appendix

Response to written questions submitted by Hon. John F. Kerry to:
    Hon. Joseph H. Boardman......................................    63
    Edward R. Hamberger..........................................    66


                    RAILROAD SAFETY ENHANCEMENT ACT 
                                OF 2007

                              ----------                              


                        THURSDAY, JULY 26, 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 2:34 p.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. Good afternoon, the Committee is 
brought to order, and I want to welcome everybody to the 
Subcommittee's second hearing on railroad safety.
    Now, frankly, the statistics are surprising. Although you 
hear about railroad accidents individually, it's hard to 
believe that 841 people died in railroad accidents last year, 
and thousands more were injured.
    Some were employees, others were passengers. Some were 
residents who lived in, or trespassed near the railroad tracks, 
or the rail yard.
    Last year two people in New Jersey were struck by trains in 
separate incidents in one day. The Federal Government is 
supposed to keep our railroads operating safely, and protect 
passengers, workers and people exposed to their operations. But 
Congress hasn't authorized America's rail safety program since 
1994.
    Now, it's time for us to provide direction to our Nation's 
rail safety policies. Based on this Subcommittee's first 
hearing on rail safety in May, Senator Smith--who is the 
Ranking Member of the Subcommittee, and I, drafted legislation 
to authorize and improve the U.S. Department of 
Transportation's railroad safety programs. The bill is called 
the Railroad Safety Enhancement Act of 2007, and we're 
introducing it today.
    A draft copy has been shared with the witnesses and staff 
members of the Subcommittee, and we invite any Senators who 
want to be listed as original cosponsors of the bill to please 
join us. We know that there is substantial interest among our 
colleagues.
    One part of our bill would require railroads to complete 
safety risk analyses of their operations. Using these, they 
would implement customized safety programs, targeting problem 
areas.
    But there is no substitute for following current 
regulation. It's simply a common-sense way to ensure railroads 
address the most dangerous safety problems first.
    Our bill would address three major areas of concern that 
affect the entire industry: employee fatigue, under the hours-
of-service laws, new train controls, and railroad safety 
technology and grade-crossing safety. And, we will start with 
the employee fatigue and hours-of-service.
    Under current law, train crews can work up to 400 hours in 
30 days. One person can't work that much and stay awake, let 
alone be expected to keep anyone safe. Our bill would authorize 
the Department of Transportation to strengthen the antiquated 
laws on hours-of-service. It would also reduce limbo time, the 
time spent traveling back to an employee's duty station, after 
working or waiting for such transportation there.
    Now, I'm pleased to welcome Senator Smith, and I know he 
has some concerns over this issue. And we'll continue to work 
together on this provision to perfect it.
    Second, our bill requires railroads to embrace Positive 
Train Control, another railroad safety technology, which will 
reduce train crashes, and help save lives. For example, one 
system already in use will automatically brake a moving train, 
if the engineer doesn't start applying the brake in time to 
stop before a red stop signal. Putting Positive Train Control 
technology in place has been on the National Transportation 
Safety Board's most wanted list for the rail industry, since 
1990. And I first proposed requiring this technology on the 
Northeast Corridor in 1987.
    Our bill would create a reasonable deadline for railroads 
to implement this technology, in a way that's interoperable 
throughout the country, and provides grants to assist in the 
development of these tools.
    Third, our bill improves pedestrian and grade crossing 
safety, to help prevent accidents and injuries, and worse, 
deaths. Ninety-four percent of all rail-related deaths involve 
highway grade-crossings, or trespassers. We need to pin down 
the problem locations in our towns and cities, which will 
require the cooperation of the states.
    Our bill would require states to report the methods of 
protection at all highway grade-crossings to the Federal 
Government, so we can identify those problem areas.
    States with historically high numbers of crossing accidents 
must also prepare comprehensive plans to increase safety, and 
to reduce accidents and deaths.
    Our bill has many other important provisions, adding 200 
more rail safety employees, increasing civil penalty amounts 
for failing to observe safety regulations, and requiring that 
the Federal Railroad Administration make public reports on its 
enforcement activities.
    Now, I thank my colleague and Ranking Member, Senator 
Smith, for working on this bill with me, and I look forward to 
hearing from today's witnesses, after we've heard from Senator 
Smith.

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

    Senator Smith. Thank you, Mr. Chairman. It's a pleasure to 
work with you on this bill as we develop it. I appreciate the 
courtesies you've extended to me and my staff.
    Let me be clear--this legislation is, by no means, a 
perfect product yet. Rather, it's a work in progress, and I 
think it's important to work together to ultimately get a 
better handle on this issue. And so I'm confident that the 
final product will benefit from today's hearing.
    Railroads are an integral component of the Nation's 
transportation system, and ensuring the safety of railroads is 
of critical importance. As domestic and global economies 
continue to grow, the demands on all modes of transportation, 
including rail, will undoubtedly continue to increase.
    While traffic volume on railroads has increased in recent 
years, the actual rate of accidents has decreased. The low rate 
of rail-related accidents has made rail one of the safest ways 
to move goods throughout the country.
    The legislation the Committee will take up aims to further 
improve upon the safety record of our railroads, through a 
number of key measures, including improving highway-rail grade-
crossing safety, developing and implementing new rail 
technologies, and reforming hours-of-service laws to reduce 
fatigue and related accidents.
    So I look forward to hearing from our witnesses on these, 
and other issues surrounding rail safety. And I also look 
forward to continuing to work with my colleagues to improve 
this legislation to get it to a place where it can pass the 
U.S. Senate.
    I welcome our witnesses and thank you, Mr. Chairman.
    Senator Lautenberg. Thank you, Senator Smith.
    And I welcome the panel, already seated there, Joe 
Boardman, Administrator of the Federal Railroad Administration; 
John Tolman, President of the Brotherhood of Locomotive 
Engineers and Trainmen, Division of the Rail Conference of the 
International Brotherhood of Teamsters; Mr. Ed Hamberger, 
President and CEO of the Association of American Railroads; and 
Mr. David Solow, CEO of Southern California Regional Rail 
Authority.
    I want to thank all of you for joining us, and I note the 
different interests represented, or let's say, the different 
activities. Interests are all the same, the interests are to 
improve safety.
    And we invite you, and Mr. Boardman, you're first, and 
we'll allow 5 minutes, please. And try to give your summary, 
testimony in that time. But the record, of course, is open for 
your full written statement.

             STATEMENT OF HON. JOSEPH H. BOARDMAN,

        ADMINISTRATOR, FEDERAL RAILROAD ADMINISTRATION,

               U.S. DEPARTMENT OF TRANSPORTATION

    Mr. Boardman. Thank you, Mr. Chairman, Ranking Member 
Smith. I appreciate the opportunity to be here, and I 
appreciate the hard work and thoughtfulness that went into the 
bill that you just introduced, I've looked it over.
    I'd like to concentrate today, if I can, on the hours-of-
service regulation issues. We believe that train crew member 
fatigue has played an increasing role in railroad accidents 
over the past decade, through poor judgment, miscommunication 
and inattentiveness, and failure to follow standard operating 
procedures. The challenge before us is to ensure that crew 
members consistently have an adequate opportunity to rest, do 
not suffer from medical disorders that can disrupt sleep, and 
are fully engaged in, and committed to, 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 on a 
schedule of eight hours on-duty, eight 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.
    Moreover, the hours-of-service laws contain no substantive 
rulemaking authority. The lack of regulatory authority over 
duty hours--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, and 
computer models can accurately predict the likely effect of 
specific sleep-and-rest patterns on employee performance. Now, 
we recognize that specific amendments to the hours-of-service 
laws might mitigate some of the sources of fatigue, and yet we 
believe that sincere--and well-intentioned attempts at 
providing short-term relief will almost certainly result in 
unintended consequences that may limit FRA's--and the 
industry's--ability to consider or provide better solutions 
downstream.
    Even if exceptions are provided for in statute, 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 significantly 
increase the cost of any further reforms.
    Hours-of-service issues are inherently complex, and they 
need to be properly considered within the overall context of 
fatigue prevention and management. FRA is committed to 
achieving significant progress in this area, but we require the 
regulatory authority to do so.
    We strongly recommend that existing hours-of-service laws 
be replaced with flexible regulations based on modern 
scientific understanding of fatigue. Today I'm again asking you 
for your support for legislation that will permit us to put 
into action what has been learned.
    In order to apply this scientific knowledge to the problem 
of fatigue, we first propose to sunset the hours-of-service 
laws, but retain their protections as interim regulations 
embodying their provisions.
    And next, we propose to make use of the extensive research 
findings, in reviewing the issue of fatigue, through the FRA's 
Railroad Safety Advisory Committee, and to develop, as 
necessary, new, science-based requirements that can help us 
reduce the number and severity of human-factor-caused train 
accidents and casualties. We believe revised, benchmark limits 
are needed for work hours, and requirements for rest periods, 
to provide simple guidance for fixed schedules, where that will 
suffice.
    We also propose to authorize FRA--under certain 
circumstances--to permit railroads to comply with an improved 
fatigue-management plan, as an alternative to complying with 
the benchmark limits set forth in any proposed regulations.
    With the tools now available, we will be able to evaluate 
proposed fatigue-management approaches, to ensure that they 
include an objective evaluation of a wide variety of more 
flexible work schedules by validated techniques. In fact, under 
such conditions, we believe that the most safety-critical 
railroad employees would be protected by performance-based 
fatigue-management programs that will enhance safety, while 
holding down costs.
    For the sake of the public and employee safety, it's time 
to make a long-overdue change, by granting the Secretary 
rulemaking authority over hours-of-service, so that FRA--as the 
Secretary's delegate--is authorized to directly address the 
major cause of far too many train accidents.
    Thank you.
    [The prepared statement of Mr. Boardman follows:]

     Prepared Statement of Hon. Joseph H. Boardman, Administrator, 
   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 
Secretary of Transportation Peters, to discuss the reauthorization of 
the Federal Railroad Administration's (FRA) rail safety program. At 
your May 22 hearing, also on this subject, FRA's witness Associate 
Administrator for Safety Jo Strang included in her testimony an 
overview of FRA's day-to-day work to reduce the number and the severity 
of railroad accidents, a status report on the agency's implementation 
of our National Rail Safety Action Plan, a summary of our passenger 
safety rulemakings and other key safety initiatives, and an analysis of 
rail safety statistics. Today, for the sake of brevity, I will provide 
an update of these safety statistics (at Appendix A) and, otherwise, 
focus on rail safety legislation alone.
    In February of this year, the Administration submitted its rail 
safety reauthorization bill, the Federal Railroad Safety Accountability 
and Improvement Act, to the Congress. The bill has been introduced, by 
request, in both the House and the Senate. I want to thank you again, 
Chairman Lautenberg, for introducing 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.
    The U.S. Department of Transportation (DOT) has also provided a 
views letter on H.R. 2095 as introduced by Chairman Oberstar and 
Chairwoman Brown. DOT also plans to provide its comments on major rail 
safety reauthorization legislation introduced in the Senate.
       The Administration's Rail Safety Bill (H.R. 1516, S. 918)
    The Administration's rail safety reauthorization bill 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 we 
believe 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 the safety of their employees and operations, 
the bill would authorize appropriations for the addition of a safety 
risk reduction program to supplement FRA's current safety activities. 
The bill requests Congressional endorsement of this pilot program, 
which FRA has already begun on a voluntary basis. Since rail-related 
accidents, injuries, and deaths are already at historically low levels, 
FRA seeks to augment the agency's traditional behavior-based and 
design-specification-based regulations with a robust risk reduction 
program to further drive down those key indicators and measures of risk 
at a reasonable cost and in a practical manner before accidents and 
injuries occur.
    In the rail safety context, such a risk reduction program is 
intended to ensure that the systems by which railroads operate and 
maintain their properties are adequate to meet or exceed safety 
objectives. Our current risk reduction program is intended to encourage 
an open collaboration with industry's labor and management so that they 
will try, and eventually adopt, voluntary risk reduction approaches. 
FRA is placing much greater emphasis on developing models of how 
railroads can systematically evaluate safety risks and implement 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 
integrate previous voluntary efforts in the human factors area (such as 
behavior-based safety methods and close call reporting), while 
extending similar risk management techniques to track safety and other 
areas.
    To encourage railroads to produce thorough, as opposed to 
superficial, risk assessments, a companion provision in the bill would 
bar public disclosure by DOT of records required under the safety risk 
reduction program, except for Federal law enforcement purposes. Also in 
order to promote the preparation of substantive 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. Here is 
an example of how this provision would work if enacted. A commuter 
railroad undertakes, develops, and writes a collision hazard analysis 
required by an FRA order issued under the risk reduction program and 
implements the results of the analysis. In this process, the railroad 
identifies a bridge abutment near a crossover as a collision hazard. It 
is unlikely that the railroad would be able to remove this collision 
hazard (a derailment could send the cars into the fixed structure), but 
the railroad could mitigate the risk by reducing operating speeds and 
by further training its employees on safely transiting the location. 
DOT would not be allowed to release the railroad's written hazard 
analysis except to enforce Federal law, and the hazard analysis (as 
well as information compiled or collected under the program) would also 
be protected from discovery in a civil action by private parties for 
damages.
    FRA is mindful that any restriction of public access to information 
may be controversial and requires careful scrutiny. However, to prevent 
misuse of the data developed under the risk reduction program, we are 
convinced that assuring confidentiality is essential to promote full, 
accurate, and timely disclosure by both the railroads and their 
employees, making certain that such programs are meaningful and more 
likely to bring about tangible improvements in safety.
B. Grants Rulemaking Authority over Hours-of-Service to the Secretary 
        of 
        Transportation
    Human factors are a primary or contributing factor in more than a 
third of all train accidents, constituting the leading cause of train 
accidents. Fatigue is at least a contributing factor in one of every 
four serious human factor train accidents. We believe that crewmember 
fatigue has played an increasing role in railroad accidents over the 
past decade through poor judgment, miscommunication, inattentiveness, 
and failure to follow standard operating procedures. The challenge 
before us is to ensure that crewmembers consistently have adequate 
opportunity to rest, do not suffer from medical disorders that can 
disrupt sleep, and are fully engaged in, and committed to, 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 on a schedule of 8 hours on-duty, 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. Please see 
Appendix B, ``Scientific Learning Demonstrating the Inadequacy of the 
Hours-of-Service Laws.''
    Moreover, the 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 
specific sleep and rest patterns on employee performance. The models 
provide useful guidance to aid employee scheduling practices, and as 
discussed in FRA's May testimony, the agency published a validation 
report of one such model in 2006. Yet, only the Union Pacific Railroad 
Company and the Canadian Pacific Railway are making use of a sleep 
model to evaluate their own crew scheduling practices. Most railroads 
have yet to integrate use of such models into 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 cooperatively improve fatigue management 
has not experienced steady progress.
    We recognize that specific amendments to the hours-of-service laws 
might mitigate some sources of fatigue. Yet, we believe that sincere 
and well-intentioned attempts at providing short-term relief will 
almost certainly result in unintended consequences that may limit FRA's 
and the industry's ability to consider or provide better solutions 
downstream. Even if exceptions are provided for in statute, 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 significantly increase the cost of any further 
reforms. Hours-of-service issues are inherently complex, and they need 
to be properly considered within the overall context of fatigue 
prevention and management. FRA is committed to achieving significant 
progress in this area, but we require 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 again asking for your support for 
legislation that will permit us to put into action what has been 
learned. In order to apply this scientific knowledge to the problem of 
fatigue, 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 make use of the extensive research 
findings in reviewing the issue of fatigue through FRA's Railroad 
Safety Advisory Committee, and to develop as necessary new, science-
based requirements that can help us reduce the number and severity of 
human factor-caused train 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 under certain circumstances to 
permit railroads to comply with an approved fatigue management plan as 
an alternative to complying with the ``benchmark'' limits set forth in 
any prospective regulations. With the tools now available, we will be 
able to evaluate proposed fatigue management approaches to ensure that 
they include an objective evaluation of a wide variety of more flexible 
work schedules by validated techniques. In fact, under such conditions, 
we believe that most safety-critical railroad employees would be 
protected by performance-based fatigue management programs that will 
enhance safety while holding down costs.
    For the sake of public and employee safety, it is time to make a 
long-overdue change by granting the Secretary rulemaking authority over 
hours-of-service so that FRA as the Secretary's delegate is authorized 
to directly address the major cause of far too many train accidents.
C. Promotes Crossing Safety
    Accidents at highway-rail crossings and dedicated pedestrian 
crossings over railroad tracks account for more than a third of all 
fatalities arising from railroad operations. In 2006 alone, according 
to FRA's preliminary figures, 368 people were killed at crossings. The 
bill seeks to prevent accidents, injuries, and deaths at crossings and 
to make crossings safer through two main provisions.
1. Requires Reports by Railroads and States to DOT on the 
        Characteristics of 
        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. Some information is missing from the Inventory 
altogether. Too much information that is in the Inventory has become 
outdated, rendering its use at least problematic. The bill would remedy 
these information deficits by requiring that railroads and states 
provide the Secretary with current information regarding the country's 
approximately 277,000 at-grade and grade-separated highway-rail 
crossings and dedicated pedestrian crossings over railroad tracks. 
Mandatory reporting would make this unique national database more 
current 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 then periodic updates on all crossings.
2. Fosters Introduction of New Technology to Improve Safety at Public 
        Highway-Rail Grade-Crossings
    Only about 40 percent of the Nation's 144,000 public highway-rail 
grade-crossings are equipped with an active device to give warning to 
motorists and pedestrians at the crossing. Many crossings have only 
crossbucks. Active warning devices are expensive to install and 
maintain, and, perversely, safety engineering improvements at one 
crossing are often cited in tort actions to prove or insinuate the 
relative inadequacy of warning signs or devices 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. Let me provide an example of innovative crossing 
safety technology. Under an FRA waiver the Twin Cities and Western 
Railroad Company and a supplier successfully demonstrated a warning 
system designed for lower-volume roadways and rail lines using 
dedicated locomotives. The system uses the Global Positioning System 
and a data radio link between the locomotive and each crossing. This 
product is now being commercialized by a major signal supplier.
D. Expands the Secretary's Authority to Disqualify Individuals Unfit 
        for Safety-Sensitive Service
    Another provision of the bill would expand the Secretary's existing 
disqualification authority to cover individuals who, after opportunity 
for a hearing, are deemed to be unfit for safety-sensitive service in 
the railroad industry because of a violation of the Hazardous Materials 
Regulations related to transporting hazardous material by rail. 
Currently, FRA, as the Secretary's delegate, 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 the Statutory Requirement 
        for the Secretary of Homeland Security to Consult with the 
        Secretary of 
        Transportation 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, if not linked inextricably, 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 legal challenge that 
asserts that DOT has exceeded its statutory authority in issuing such 
regulations.
    Of course, the U.S. Department of Homeland Security (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 formalized 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 the waiver is 
also in the public interest and consistent with railroad safety. 
Although FRA's normal practice is to set aside time for public comment 
and hearing on waiver petitions, this process 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.
    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.
    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 
databases, 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.
Legislation Proposing Amendments to the Rail Safety and Security 
        Preemption Provision at 49 U.S.C. 20106
    The Administration's bill does not include a provision that would 
revise the preemption provision at 49 U.S.C.  20106 (Section 20106). 
Section 3 of H.R. 1401, as passed by the House provides that causes of 
action for damages under State law are not preempted under Section 
20106 unless compliance with the State standard makes compliance with 
the Federal standard impossible. It further provides that the 
Secretaries of Transportation and Homeland Security may preempt 
positive State law and regulations only by covering the subject matter. 
Common law tort claims related to the same subject matter would not be 
preempted. The effect of this proposal would be that an ever-changing 
myriad of State and local standards would be established through tort 
litigation, based on the findings of individual judges and juries, who 
will undoubtedly have limited exposure to and understanding of the 
Federal standards at issue, and even less understanding of the 
consequences of their decisions beyond the implications for the 
immediate plaintiffs. The result of this amendment would be to 
eviscerate national uniformity, as the existence of Federal 
requirements and the railroad's compliance with them would have no 
bearing on the potential for liability in the event of an accident or 
terrorist incident. The effective standard would be the latest tort 
judgment in each State, without any assurance whatsoever that 
compliance with that standard would save a railroad from future 
liability. Faced with limitless tort liability and the need to meet 
these changing standards all around the country, nationally uniform 
standards would lose their meaning and effectiveness, and safety and 
security would be compromised. For this reason, the Administration's 
views letter on H.R. 1401 threatens a Presidential veto if section 3 
remains in the bill.
    Another proposed amendment to Section 20106, the provision at 
Section 616 of H.R. 2095 as passed by the House Transportation and 
Infrastructure Committee, provides a State cause of action for damages 
for personal injury, death, or property damage resulting from a 
violation of Federal railroad safety and security standards. However, 
the amendment goes too far by providing that a State cause of action is 
also created for a railroad's failure to ``adequately comply'' with any 
Federal regulation or order and ``adequately comply'' with its plan or 
standard created pursuant to a Federal regulation or order; this 
provision will generate needless litigation and undercut the national 
uniformity that section 20106 aims to achieve. If the Committee needs 
further information to address this important issue, FRA staff would be 
glad to provide assistance.
Conclusion
    The Administration's rail safety reauthorization bill would enable 
FRA to continue its existing rail safety initiatives and to enhance 
rail 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 even 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 FRA's 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 period 1978 
through 2006 is chosen for analysis because 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 13,139, an all-time low since FRA's existing database was 
first established in 1975, representing a decline of 86 percent. 
Between 1978 and 2006, total rail-related fatalities have declined from 
1,646 to 912, a reduction of 45 percent. From 1978 to 2006, total 
employee cases (fatal and nonfatal) have dropped from 65,193 to 5,165, 
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 2,891 
train accidents in 2006, compared to 10,991 in 1978), even though rail 
traffic has increased. (Total train-miles were up by 7.8 percent from 
1978 to 2006.) In addition, the year 2006 saw only 28 train accidents, 
out of the 2,891 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 rail 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 912 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, 521 persons died 
while on railroad property without authorization, and 368 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 4.39, 
respectively) compared to that in 2002 (3.76), although it dropped in 
2005 (to 4.11) and in 2006 (to 3.57), close to the all-time low of 3.54 
achieved in 1997.
    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 the Inadequacy of the 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 health 
risks, including the risk of serious health problems such as diabetes, 
---------------------------------------------------------------------------
cardiovascular disease, and hypertension.

    Senator Lautenberg. Mr. Hamberger?

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

    Mr. Hamberger. Thank you, Mr. Chairman, Senator Smith. On 
behalf of the members of the AAR, thank you for the opportunity 
to address rail safety. I'd like to associate myself with the 
remarks of Administrator Boardman in thanking both of you, and 
your staffs, for the open-door policy you've had, and the 
thoughtful way in which you've addressed this very complex 
subject matter.
    You astutely observed, Mr. Chairman, that 94 percent of the 
fatalities are as a result of grade-crossing accidents, or 
trespassing accidents. And I want to thank you for the effort 
in this bill, but also in your capacity as a member of 
Environment and Public Works Committee, in fully funding the 
Section 130 Grade-Crossing Safety Program. Over the years, this 
program has saved thousands of lives, and, in fact, last year 
was the safest in history, in terms of grade-crossing collision 
rates.
    And, that's really just one of the safety milestones 
established in the industry in 2006. Our employee injury rate 
was also the lowest in history last year, and the train 
accident rate was just fractionally higher than the record low 
set a few years ago.
    Progress is continuing this year, with preliminary FRA data 
for the first 4 months of 2007 showing a 14 percent improvement 
in the train accident rate, as well as further reductions in 
both the employee injury, and grade-crossing accident rates.
    Turning to the draft legislation, I particularly want to 
thank the Chairman and the Committee for their support of 
funding for design and construction of a tunnel at the 
Transportation Technology Center, in Pueblo, Colorado. This 
facility will be used to improve safety and security in 
tunnels, and to provide training for emergency responders.
    There are a few other provisions I'd also like to address, 
one of these concerns limbo time. As I testified on May 22nd, 
our preferred option would be to make three changes to the 
current hours-of-service regulations that we believe would 
address the fatigue issues surrounding limbo time.
    First, any employee who works 12 consecutive hours on-duty, 
and then 1 hour or more of limbo time, should receive 14 
consecutive hours of off-duty time, to make sure that there is 
no rest deficit.
    Second, train and engine service employees should be 
subject to a new monthly maximum on-duty time of 276 hours.
    And third, even though limbo time is not on-duty time, it 
should be included in that new monthly maximum of 276 hours.
    We believe these measure strike a balance between fatigue 
concerns, and the 24/7 reality of railroad operations.
    Although that is our preferred approach, I notice it's not 
in your bill.
    [Laughter.]
    Mr. Hamberger. So, let me comment on the draft bill's 
approach.
    We appreciate your recognition that limbo time cannot be 
banned altogether, and that you provide for certain exceptions. 
We would like to work with you and your staff to clarify and 
refine that list.
    For example, we believe seasonal congestion--as opposed to 
systemic congestion--should be considered as an exception. 
Another provision mandates that train and engine employees 
cannot work unless they have had at least 24 consecutive hours 
off-duty during the previous 7 days. This limit is particularly 
difficult for our 24/7 operating environment, and could make 
weekend staffing particularly difficult. We would like to 
change that to either 7 on and 1 off, or perhaps even 7 on and 
2 off, as a way to resolve that problem.
    The legislation prescribes advanced train control systems 
that can help prevent accidents by automatically stopping or 
slowing trains, before they encounter a dangerous situation. 
Those systems are very complex, and must include reliable 
technology to inform dispatchers of a train's precise location, 
a means to warn operators of actual--or potential--problems, 
and, independent of the train operator, take action to prevent 
an accident from occurring.
    They must also be interoperable across the entire 120,000-
mile network, and over the 600 railroads that operate in the 
country.
    We are committed to implementing train control systems, but 
because of the complexities I've just referenced, we're 
uncomfortable with establishing a rigid deadline for deployment 
at this time. As an alternative to a specific date, we would 
ask you to consider having each railroad present to the FRA--12 
months after enactment of this bill--their plan to implement 
train control technology. The FRA would then report to you and 
the Transportation Committee on the House side on those plans, 
and perhaps at that time, a more firm implementation timetable 
could be established.
    Finally, the legislation proposes significant increases in 
maximum fines for safety violations. I would suggest that the 
maximum penalty of $25,000 is disproportionate, especially 
given the fact that the railroad industry's safety record is 
dramatically better than that of the motor carrier industry, 
where the maximum fine is $5,000, and of course they are our 
primary competitor in fighting to move freight around the 
country.
    Let me just reiterate, safety is our top priority, and we 
believe that shows through our ever-improving safety record. 
We're 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 in general 
and the Railroad Safety Enhancement Act of 2007 in particular. 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 rail 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.


    Preliminary FRA data for the first 4 months of 2007 show a 14 
percent improvement in the train accident rate compared with the same 
period in 2006, as well as improvements in the employee injury rate and 
the grade crossing collision rate.
    Moreover, 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, and they agree 
that safety should be the FRA's highest priority. 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 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. These investments were made possible by the 
moderate improvements in profitability that railroads have enjoyed 
since passage of the Staggers Rail Act of 1980. 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 or requirements that do little to improve safety, 
or if unfunded mandates lock up resources that would have a more 
pronounced impact on safety if spent elsewhere. Unnecessary and 
unfunded mandates would 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, especially as they relate to the 
Railroad Safety Enhancement Act of 2007. For the sake of brevity, at 
times I refer back to my testimony on rail safety to this committee on 
May 22 of this year.
Role of Technology
    Technology plays a crucial role in rail safety. Much of this 
technology has been, and is being, developed and/or refined at the 
Transportation Technology Center, Inc. (TTCI) in Pueblo, Colorado, a 
wholly-owned subsidiary of the AAR and 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 since 1984. TTCI is responsible for all 
the facility's operating costs and some capital costs.
    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, including members of this committee, 
to visit the facility when they can.
    In my testimony to this committee on May 22, I listed many of the 
technological advances that are contributing to improved rail safety, 
including advanced wayside detectors that identify defects on passing 
rail cars; ground-penetrating radar that helps identify problems below 
the ground (such as excessive water penetration and deteriorated 
ballast) that hinder track stability; advanced track geometry cars that 
use sophisticated electronic and optical instruments to inspect track 
conditions; and much more.
Train Control Technology
    Among the most important new railroad technologies under 
development are 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, derailments due to excessive speed, and incursions onto 
unauthorized trackage.
    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 of these systems is 
sophisticated software capable of accommodating all of the variables 
associated with rail operations. When successfully implemented, these 
enhanced train control capabilities will promote and enhance safe train 
operations.
    Major railroads are engaged in various ongoing projects to test 
elements of this new technology. For example, BNSF has performed 
extensive and successful pilot testing of its version of train control 
(Electronic Train Management System) 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 on major freight railroads 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 major 
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 
advanced train control technology where it makes sense to do so (e.g, 
on high-density main lines, rather than low-density branch lines or 
yards), and at a pace that can be justified by available funds. Because 
there are so many variables involved, and because railroads are still 
investigating different train control systems and the advantages and 
disadvantages they offer, railroads believe that a rigid deadline is 
not appropriate. Railroads recognize that 2018 (the year mentioned in 
the legislation, though it allows the Secretary of Transportation to 
set an earlier date) is some years away, but the tremendous costs and 
complexities involved in train control systems argue for flexibility, 
not rigidity, both in time and operational functionality. As an 
alternative to a specific date, railroads favor a commitment to provide 
the FRA with an implementation plan regarding train control within 12 
months, with the FRA then reporting to Congress. Perhaps at that point 
a firmer implementation timetable could be established.
    Just one of the many complexities involved concerns radio spectrum 
issues. Railroads use the radio spectrum in a wide variety of safety-
critical settings, including yard operations, maintenance of way, 
police, equipment identification, end-of-train units, defect detectors, 
distributed power, and train control. Only radio can provide immediate 
information on the speed, location, and direction of the hundreds of 
trains that might be operating at the same time on a single railroad. 
Thus, safe and reliable railroad operation depends on immediate and 
reliable access to the radio spectrum, as well as protection against 
interference and encroachment on railroad frequencies by others.
    However, there is concern that widespread use of train control 
technology could be inhibited because of ``spectrum congestion''--i.e., 
the lack of sufficient and available spectrum frequencies within the 
portion of the spectrum used by railroads. This problem takes on even 
greater urgency in light of efforts by the Federal Communications 
Commission to narrow (or ``refarm'') the bandwidth for existing 
channels. Suitable spectrum alternatives for nationwide usage for train 
control are few. The rail industry continues to investigate this issue, 
but may need Federal Government assistance in finding suitable 
alternatives.
Fatigue Management in the Rail Industry
    It is not in a railroad's best interest to have employees who are 
too tired to perform their duties properly. That's why railroads have 
long partnered with labor 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. It is also clear that 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. 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.
    Individual railroads are pursuing a variety of fatigue 
countermeasures, based on what they've found to be most effective for 
their particular circumstances and the provisions of their collective 
bargaining agreements. I discussed many of these countermeasures in my 
May 2007 testimony. 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.
Background on Railroad Hours-of-Service
    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 employees who operate trains (i.e., 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 deadhead transportation (see p. 9) to a duty 
assignment. Off-duty time starts when the employee is released from 
duty, generally at a designated terminal or place of lodging.
    For dispatchers, a workday is limited to 9 hours in a 24-hour 
period where two shifts are used, or 12 hours over the same period when 
there is only one shift.
    Finally, signal employees can work a maximum of 12 consecutive 
hours on-duty, followed by at least 10 consecutive hours off-duty.
    Railroads must keep detailed records specifying when each covered 
employee is on-duty or off-duty. Violations of the HSA can result in 
fines of between $500 and $10,000 per violation, with each employee 
considered a separate violation.
    To comply with the HSA and still operate as a highly-competitive 
24-hours per day, 7 days per week industry, freight railroads try to 
schedule crew assignments with as much precision as possible. 
Unfortunately, the nature of rail operations makes precision extremely 
difficult to achieve.
    Most people are familiar with passenger modes of transportation, 
and that familiarity at times slants our thinking about how freight 
railroads do and should operate. A single flight crew, for example, 
will typically fly a plane from, say, Los Angeles to Washington. 
Occasionally, weather or other problems might impact airline schedules, 
but by and large passenger airlines are able to offer predictable, 
regularly-scheduled service. The fact that airlines can often ``reset 
the clock'' each day (because operations are greatly reduced at night) 
helps them maintain scheduled service.
    Generally speaking, freight railroads are quite different. Unlike 
airlines, freight railroads require multiple crew changes to move 
commodities across the country. Railroads must use multiple local and 
yard assignments to gather freight at the beginning of a trip, then use 
multiple crews to move it across the country, and then use more local 
crews to deliver the freight to its final destination.
    Where appropriate and practical, train scheduling is being 
implemented and can have positive impacts on fatigue. However, for a 
variety of reasons, including the variability in demand for rail 
transportation, weather, track conditions, provisions in collective 
bargaining agreements, and countless other factors, trains in many 
cases cannot run on a precise schedule.
Limbo Time
    The HSA limits the number of hours that train crew employees can 
remain on-duty. At times, though, because of unforeseen events, a train 
may be unable to reach its scheduled (or even a convenient) crew change 
point within its crew's allotted 12 hours.
    When this happens, the crew becomes ``outlawed'' and must 
immediately stop the train and wait for a new crew to replace it. 
Transportation of the replacement crew to the train, and of the 
outlawed crew from the train to a designated location where it is 
released from duty, is called ``deadhead'' transportation. Deadhead 
transportation is typically provided by other rail personnel or by 
private contractors hired by railroads for this purpose. Deadhead time 
is not counted as on-duty time in either the airline or motor carrier 
industries.
    Under existing hours-of-service limitations, the time a railroad 
crew spends waiting to be taken to a duty assignment, and the time it 
spends being transported to the duty assignment, count as time on-duty.
    However, time that outlawed crews spend waiting for deadhead 
transportation, and the time they spend being transported to where they 
are released from duty, currently count as neither time on-duty nor 
time off-duty. Instead, this time is considered ``limbo time.'' During 
limbo time, the train crew has been relieved of, and will not perform, 
safety-sensitive duties. Employees' off-duty rest time begins only 
after they are released from duty (for example, to a terminal or a 
place of lodging).
Hours-of-Service Reform
    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 HSA's statutory limitations.
    Generally speaking, railroads do not object to the provision in the 
Railroad Safety Enhancement Act of 2007 that prohibits train and engine 
and signal employees from working unless they have had at least 10 
consecutive hours off-duty (up from 8 hours under current law) during 
the prior 24 hours, unless collective bargaining agreements between the 
railroad and affected employees provide otherwise. Railroads also do 
not object to a requirement that those 10 hours should be free of non-
emergency communications from railroads.
    Railroads disagree, though, that time spent deadheading from a duty 
site should count as on-duty time, rather than as limbo time.
    If time spent deadheading from a duty site were counted as on-duty 
time, as proposed in the Railroad Safety Enhancement Act of 2007, 
railroads would have to calculate the approximate deadheading time and 
stop the train early enough to take account of that interval in order 
to avoid a violation of the HSA. But because limbo time generally 
results from unforeseen circumstances, this is not a realistic option. 
Countless actions as varied (and from a railroad's point of view, 
virtually unavoidable) as a grade crossing accident that delayed a 
train, a blown tire on a van carrying a train crew back to its release-
from-duty site, or a sudden track washout would mean an almost certain 
violation of the HSA.
    Railroads are aware of the provision in the proposed legislation 
that preserves limbo time if delays are the result of certain specified 
unforeseen causes, including an accident, a track obstruction, an act 
of God, severe weather events, a landslide, washouts, a major equipment 
failure, and other ``unknown or unforeseeable'' events. Railroads look 
forward to working with you to develop a more comprehensive and better-
defined list of causes of delays that should be added to this existing 
list. Delays caused by congestion on the network are an example of 
delays that should be exempted from the bill's limbo-time requirements.
    Although limbo time does not contribute to employee fatigue during 
the immediate work assignment, railroads are aware of concerns that it 
could play a role in creating a cumulative sleep deficit. To guard 
against this possibility, railroads support three changes to current 
hours-of-service regulations as an alternative to changes offered in 
the legislation.
    First, any employee who works 12 consecutive hours on-duty, and 
then at least 1 hour of limbo time, would receive at least 14 hours of 
off-duty time once he or she is released from duty. Second, railroad 
train and engine employees would be subject to a new monthly maximum of 
276 hours on-duty. Third, even though limbo time is not on-duty time, 
it would be included in those 276 hours.\1\ Hours beyond this new 
maximum, which is consistent with permissible hours for other modes of 
transportation, would be a violation of the HSA. (Today rail employees 
can theoretically work 432 hours per month and still comply with the 
HSA.) \2\
---------------------------------------------------------------------------
    \1\ Kansas City Southern and Canadian National do not agree with 
this position, and Amtrak abstains on the issue.
    \2\ In fact, though, railroads 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 for train and engine employees 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 proposal is 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.
    Another provision in the Railroad Safety Enhancement Act of 2007 
mandates that train and engine employees cannot work unless they have 
had at least 24 consecutive hours off-duty during the previous 7 days. 
This limit is arbitrary and inconsistent with railroad work schedules, 
particularly for employees assigned short hauls and who work in 
terminals. Generally speaking, the limit would be appropriate if 
extended one more day, to require 24 consecutive hours off-duty in a 
period of eight consecutive days. Railroads do support a provision in 
the bill that allows exemptions from the legislation's requirements for 
train employees in cases where a collective bargaining agreement 
provides a different arrangement.
    Although modified work schedules are permitted by the HSA, they 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. Railroads strongly endorse the provision in the Railroad 
Safety Enhancement Act of 2007 that clarifies that railroad signal 
employees who operate motor vehicles are subject only to hours-of-
service requirements promulgated by the FRA, and not by those issued by 
any other government agency (including FMCSA).
    Another provision in the proposed legislation prohibits railroads 
from invoking the emergency work provision for signal employees for 
``routine repairs, maintenance, or inspection.'' (Under the HSA, signal 
workers are permitted to work more hours during emergencies than they 
can during non-emergencies.) Presumably, the purpose of this provision 
is to prevent railroads from ``gaming the system'' by invoking the 
emergency work provision when an emergency does not exist. The 
railroads do not object to statutory language ensuring the provision is 
only invoked when appropriate.
    Finally, railroads do not oppose the imposition of hours-of-service 
regulations on contractor employees doing work which, if done by a 
railroad employee, would be subject to hours-of-service regulation. 
However, the contractor--not the railroad--should be responsible for 
compliance. Railroads can make contractor employees follow railroad 
rules while working on railroad projects, but railroads lack the 
ability to police contractors' overall labor policies and employee 
hours.
    If policymakers determine that any group of non-railroad employees 
should be subject to hours-of-service limitations, policymakers should 
address the issue with those groups directly, not indirectly through 
railroads. As written, the Railroad Safety Enhancement Act of 2007 
would apply hours-of-service restrictions to contractor signal 
employees and would hold a railroad responsible for compliance by its 
contractor employees.
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,\3\ 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.
---------------------------------------------------------------------------
    \3\ 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 the most recent available FRA data, 2,918 
collisions in 2006 (down 73 percent) involved 368 fatalities (down 56 
percent) and 1,010 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 
committee and follow through on sign installation. The AAR also 
supports the 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 AAR's testimony to this committee on May 22 noted a number of 
other engineering, education, and enforcement actions that should be 
implemented so that further improvement in crossing safety can be 
achieved, such as adopting a uniform national grade crossing closure 
process; continuing to fund the national Operation Lifesaver grade 
crossing and pedestrian safety program (addressed in Section 206 of the 
Railroad Safety Enhancement Act of 2006); increasing Federal liability 
insurance requirements for contractors whose funded projects interface 
with or impact a railroad; and enhancing 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.
    Class I railroads support (and, in fact, are already engaged in) a 
program to provide the public with telephone numbers, posted at public 
grade crossings and at private crossings open to unrestricted public 
access (as declared in writing to the railroad by the holder of the 
crossing right), that can be called in the event of grade-crossing 
emergencies. Railroads also support a requirement for the development 
of model legislation that provides for penalties for violations of 
grade crossing laws, which occurs far too often--and often with tragic 
results. Both of these issues are addressed in the Railroad Safety 
Enhancement Act of 2007.
    Railroads have programs in place to control vegetation on their 
property near crossings because they agree that motorists' sight lines 
should not be obstructed. If Congress decides that there should be a 
Federal requirement for clearing vegetation for this purpose, then the 
Federal requirement should preempt state or local laws so that there is 
national uniformity. FRA implementing regulations should also specify a 
required clearance distance, rather than simply call for ``reasonable'' 
clearance. Of course, railroads have limited ability to address 
vegetation at private crossings and on private land adjacent to 
railroad rights-of-way.
Trespassers
    Since 1997, 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.
Other Provisions in the Railroad Safety Enhancement Act of 2007
    Railroads have comments regarding various other provisions of the 
Railroad Safety Enhancement Act of 2007:

   Railroads strongly support the provision that authorizes 
        funding for the design, development, and construction of a 
        Facility for Underground Rail Station and Tunnel at the 
        Transportation Technology Center in Pueblo, Colorado. As the 
        legislation notes, this facility would be used to test and 
        evaluate the vulnerabilities of rail tunnels, to mitigate and 
        remediate the consequences of accidents and incidents in 
        tunnels, and to provide a realistic scenario for training 
        emergency responders.

   Section 401 requires railroads and railroad contractors to 
        develop training programs, approved by the FRA, for classes of 
        employees that the Department of Transportation deems 
        appropriate. Railroads agree that a well-trained workforce is 
        essential to safe and efficient railroad operations. After all, 
        ``human factors'' (i.e., human error) is the cause of more rail 
        accidents than any other single factor, and in most (if not 
        all) of these accidents, the employee(s) involved broke a rule 
        or set of rules.

    A new rigid Federal program would be redundant and is unnecessary, 
        since railroads already have procedures in place, including 
        ongoing training programs overseen by the FRA, to ensure that 
        their workforce is adequately trained. New locomotive 
        engineers, for example, receive at least 15 to 20 weeks of 
        classroom and on-the-job training as a conductor before 
        beginning work. Locomotive engineer training will add an 
        additional 20-25 weeks before they are certified and ready to 
        work. Total costs to train a conductor and later an engineer 
        range from $52,000 to more than $70,000 per individual.

   Section 402 requires the Department of Transportation to 
        report on whether certification of certain classes of employees 
        is ``necessary'' to improve safety. Locomotive engineers 
        require certification. Certification requirements for other 
        classes of rail employees (e.g., conductors) would be 
        burdensome without accomplishing any safety objective. 
        Certification is not necessary to ensure that rail employees 
        are appropriately trained.

   Section 302 significantly increases (from $10,000 to 
        $25,000) the maximum fine for railroad safety violations. This 
        proposed higher fine is disproportionate. By comparison, the 
        maximum penalty for a violation of safety requirements by motor 
        carriers (railroads' primary competitors) is $5,000.

   Sections 406 and 407 provide for railroad safety technology 
        grants and railroad safety infrastructure improvement grants, 
        respectively. Improved rail safety benefits the public, not 
        just railroads, making financing partnerships appropriate.

   Camp cars, house trailers on wheels, and emergency trailers 
        have been a vital part of the railroad industry for many years. 
        They serve as safe, dependable places for railroad workers to 
        eat and sleep in many isolated, undeveloped areas where motels 
        and restaurants are not easily accessible. Any notion that they 
        have a negative impact on employee quality of life is 
        misplaced. One Class I railroad which relies on camp cars in 
        the remote locations it serves is currently modernizing its 
        cars and converting them from eight-person to four-person 
        sleepers, with two full baths, desks, and modern HVAC systems. 
        Employee reaction on that railroad has been extremely positive. 
        This same railroad has a 44-car ``emergency fleet'' that is 
        critical to its ability to respond to emergencies and natural 
        disasters such as Hurricane Katrina. These cars stand at the 
        ready to be deployed to handle emergency situations at a 
        moments notice.

    The FRA already has formal guidelines governing the location and 
        sanitary conditions of railroad camp cars. The imposition of 
        any restrictions on the future use of camp cars is not only 
        unwarranted but would force employees to venture long distances 
        in unfamiliar environments to seek lodging and dining 
        facilities that are likely to be inadequate. Again, such travel 
        does not enhance employee health and safety.
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 respectfully suggest that the Railroad Safety Enhancement 
Act of 2007 should incorporate performance standards as much as 
possible in place of rigid and unresponsive design-based rules to 
regulate safety in the railroad industry.
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. Thank you very much, Mr. Hamberger.
    Mr. Tolman?

        STATEMENT OF JOHN P. TOLMAN, VICE PRESIDENT AND 
NATIONAL LEGISLATIVE REPRESENTATIVE, BROTHERHOOD OF LOCOMOTIVE 
   ENGINEERS AND TRAINMEN, DIVISION OF THE RAIL CONFERENCE, 
             INTERNATIONAL BROTHERHOOD OF TEAMSTERS

    Mr. Tolman. Thank you, and good afternoon, Chairman 
Lautenberg, Ranking Member Smith, and Members of the 
Subcommittee. My name is John Tolman, I'm a Vice President of 
the Brotherhood of Locomotive Engineers and Trainmen, which is 
a division of the Teamsters Rail Conference.
    On behalf of the 12,000 BLET members, and nearly 100,000 
Rail Conference members, I want to express my thanks for the 
opportunity to testify here concerning rail safety.
    My written testimony presents a comprehensive view of this 
legislation, but in my limited time this afternoon, I'd like to 
concentrate on the portion of the legislation that addresses 
hours-of-service reform.
    There is a common understanding among government, labor and 
management, that fatigue poses a significant safety concern, or 
at least an underlining factor in far too many accidents. 
However, that common understanding has yet to produce a 
consensus on what forms fatigue abatement should take.
    The most contentious hours-of-service issue is the limbo 
time, the time after the crew's 12 hours have expired, and 
before they arrive at the point of final release, which is 
neither on-duty time, nor off-duty. And for now, I'd like to 
raise some of the other consequences of limbo time that have 
not been discussed here.
    When a crew is abandoned on a train for 4, 8, 12, and 20 
hours, all freight being carried by the train is also left in 
limbo. Limbo time severely disrupts delivery of just-in-time 
parts and supplies. It also wastes countless gallons of diesel 
fuel, because locomotives must be kept running, wasting an 
increasingly expensive, scarce resource--not to mention the 
pollution.
    Not only is limbo time bad for business for America, it's 
bad for business for the railroad industry itself. Every hour a 
crew and its train spends in limbo, reduces velocity. 
Increasing velocity means freeing up locomotives, cars, and 
crews, for more productivity. A dramatic reduction in limbo 
time is good for the railroads, workers, the economy, 
consumers, and the environment.
    Unfortunately, limbo time is one of the issues where 
stakeholders have widely varying opinions. The industry insists 
that limbo time is not a factor in fatigue. The FRA believes 
that it should be part of the regulatory process. We, on the 
other hand, believe that the Supreme Court got it wrong in 
1996, when it ruled that limbo time is neither time on, nor 
time off, duty, and that Congress needs to set the record 
straight.
    We further believe that there is, there should be no limbo 
time, except in narrow circumstances, provided currently under 
the Hours of Service Act.
    Regarding statutory time off-duty, we generally support the 
approach you are proposing, but there are some unintended 
consequences. And I want to bring to your attention, because 
they need to be addressed in this process.
    One is that the requirement that an employee be off-duty 
for at least a 24-hour period every 7 days. We would 
respectfully request that you consider amending this 
requirement, so that the 24-hour period is taken at the 
employee's home terminal. Because the studies have shown that 
the quality of rest taken at away-from-home terminal, is 
inferior to the rest taken at a home terminal.
    We also believe, and applaud, the 10-hour call. We believe 
it is a key component to fatigue mitigation, because it 
eliminates the possibility of someone who is not rested being 
required to work unexpectedly. Accordingly, we strongly support 
the pilot project for the 10-hour call, however, we would like 
to see all railroads implement a 10-hour call, and believe that 
the proposed 2-year limit is longer than necessary to develop a 
program.
    I'd also like to commend you on two non-fatigue related 
topics: training, and elimination of the camp cars.
    First, with respect to training--we can think of no craft 
or class of a railroad worker not impacted or governed in some 
manner by the Federal railroad safety statutes or regulations, 
and we believe training should be afforded across the board. At 
least, as to those statutes and regulations.
    And second, Section 410, which would amend the Federal law 
by getting our Rail Conference brothers and sisters in the 
Brotherhood of Maintenance of Way Employees Division out of the 
barbaric camp cars, something that is long, long overdue.
    In closing, we appreciate the steps you've already taken, 
and look forward to working with you to produce a meaningful 
legislation.
    And thank you.
    [The prepared statement of Mr. Tolman follows:]

   Prepared Statement of John P. Tolman, Vice President and National 
  Legislative Representative, Brotherhood of Locomotive Engineers and 
Trainmen, Division of the Rail Conference, International Brotherhood of 
                               Teamsters
    Thank you, and good afternoon Chairman Lautenberg, Ranking Member 
Smith, and Members of the Subcommittee.
    My name is John Tolman, and I'm Vice President and National 
Legislative Representative of the Brotherhood of Locomotive Engineers 
and Trainmen (BLET), which is a Division of the Teamsters Rail 
Conference. On behalf of more than 33,000 active BLET members and over 
70,000 Rail Conference members, I want to express my thanks for the 
opportunity to inform you of our position concerning rail safety, in 
general, and the Rail Safety Enhancement Act of 2007, in particular.
    As you may know, the BLET has a long and proud history of helping 
lead the fight to improve safety in the railroad industry. We are 
charter members of the Federal Railroad Administration's (FRA) Railroad 
Safety Advisory Committee (SAC) and have actively participated in every 
aspect of rail safety regulation for more than a decade. Since June of 
last year, we have testified before House Committees and Subcommittees 
of jurisdiction more than a half dozen times concerning rail safety, 
generally, as well as on specific issues.
    Rail safety has improved significantly in recent years. The 
industry has set records for the number of train-miles operated each of 
the past 2 years. In 2006, the rate for human factor accidents on main 
track was the lowest recorded since FRA began keeping data in 1975. 
Similarly, last year's rate for human factor accidents on yard track 
was the lowest it has been since 1997. Nonetheless, as tragedies in 
Minot, North Dakota; Macdona, Texas; and Graniteville, South Carolina, 
remind us, even a single accident can have catastrophic consequences.
    The need for heightened safety in the railroad industry is 
underscored by unique factors in these times in which we live. The 
attacks of September 11, 2001, remind us of the importance of tight 
security in our transportation infrastructure and in the storage and 
carriage of hazardous materials. Deterioration of our highway systems 
and steadily increasing importation of foreign-manufactured goods have 
combined to stretch the industry to capacity in many places, and 
neither of these trends are likely to reverse any time soon.
    We stand on the threshold of broad application of signal and train 
control technologies throughout the industry. While these technologies 
have the potential to significantly enhance safety, they also bring 
different and, perhaps, unanticipated safety challenges. Concurrent 
with all these factors is the retirement of the Baby Boomer generation 
of railroad workers, and the test posed by training and introducing 
over 80,000 new workers into the industry.
    Fortunately, the industry is well poised to face and successfully 
deal with these challenges. Nearly every major railroad has set a 
profit record in the past few years. The Class I carriers, as a whole, 
have enjoyed roughly $25 billion in profits over the past 6 years, and 
recently have expended much capital buying back stock.
    The attractiveness of investment in railroads is, perhaps, best 
evidenced by the significant stake in three Class I railroads purchased 
by Berkshire Hathaway earlier this year, and by the more recent reports 
of a possible leveraged buyout of Canadian Pacific by a consortium led 
by Brookfield Asset Management. Consequently, we are in a far different 
period than the industry was, for example, in the late 1970s, when even 
the most routine track maintenance was deferred for dangerous lengths 
of time because of the industry's financial shape.
    Within this context, I want to congratulate you on the work you 
have done in drafting the Railroad Safety Enhancement Act of 2007. This 
comprehensive bill reflects an understanding of where the industry is, 
and where it needs to go over the next decade. It addresses many of the 
issues we have brought to the Hill, and dovetails nicely with the work 
undertaken by the House. While I will not comment today on every aspect 
of the legislation, I do want to discuss several issues that are of 
vital importance to BLET and Rail Conference members.
    With regard to Section 101, I want to point out that the companion 
portion of the legislation being considered by the House would require 
that the Federal Railroad Administrator ``be an individual with 
professional experience in railroad safety, hazardous materials safety, 
or other transportation safety.'' It has been our experience that FRA 
fulfills its safety mission much more effectively when such a person is 
serving as Administrator. Indeed, the qualifications brought to the 
position by the current Administrator--Joe Boardman--provide, perhaps, 
the best evidence of the advantage having such a requirement means in 
terms of safety, and I strongly urge you to consider a similar 
requirement.
    We strongly support the railroad safety and risk reduction 
strategies set forth in Sections 102-104. The BLET has participated, at 
every level, in several different types of risk reduction pilot 
programs in recent years and I can tell you that they can have a 
significant positive impact on safety. Further, while we understand and 
support the need for protection of information developed in risk 
analyses, which is addressed in Section 107 of the bill, we would 
caution that such protections not be perverted to allow a railroad to 
``hide'' information that currently is properly discoverable through 
alternative methods or means.
    We also support Section 105, dealing with implementation of 
Positive Train Control (PTC) technology. In our view, an appropriate 
timetable for implementation will assist the industry in dealing with 
important issues such as interoperability among technology and 
equipment, and a consistency in operational philosophy.
    I also want to commend you on the proposals for reforming the Hours 
of Service Act. Section 106 reflects many of the conclusions reached by 
the House T&I Committee, and also proposes a number of novel 
enhancements. There is common understanding among government, labor, 
and management that fatigue poses a significant safety concern, and is 
at least an underlying factor in far too many accidents. However, that 
common understanding has yet to produce consensus on what forms fatigue 
abatement should take.
    For example, it is my opinion that introduction of a 10-hour call 
for duty, with no disruption thereafter, is one of two key elements in 
combating fatigue. Every crew member who knows at least 10 hours in 
advance that he or she will be required to report for duty at a time 
certain would have ample opportunity to ensure they are rested. The 
current problem experienced by crews receiving unexpected calls for 
duty and not having an opportunity for rest after the call is 
completely eliminated. I will address this subject again later in my 
testimony.
    To be sure, the most contentious Hours-of-Service issue is so-
called ``limbo time,'' which is time after a crew's 12 hours have 
expired and before they arrive at their point of final release, which 
is neither on-duty nor off-duty time.\1\ As you may know, we presented 
the House Railroad Subcommittee with a multitude of data concerning 
excessive limbo time, including identifying nearly 335,000 cases of 
limbo time in excess of 2 hours on just one Class I railroad from 2001 
through 2006. I will not present a detailed recitation of the data here 
today, although we would be pleased to provide any supporting 
information you request. Rather than focusing on the aspect of limbo 
time that increases fatigue among operating crews, I would, instead, 
like to point out some of the other consequences of limbo time that 
have been lost in the debate on this issue.
---------------------------------------------------------------------------
    \1\ In this regard, it is both appropriate and necessary for us to 
respond to the Administration's proposal concerning Hours-of-Service. 
Essentially, the Administration seeks to have current law repealed 
after it is promulgated as a regulation. Thereafter, amendments would 
be considered by SAC; if no consensus is reached within 24 months, the 
Secretary would be authorized to promulgate amendments in a traditional 
rulemaking process. We believe it is inappropriate to address limbo 
time in this manner at this time. The present controversy over limbo 
time stems from the holding of the U.S. Supreme Court in Brotherhood of 
Locomotive Engineers, et al., v. Atchison, Topeka & Santa Fe Railroad 
Co., et al., 516 U.S. 152 (1996), in which the Court construed the 49 
U.S.C. Section 21103(b)(4) clause stating that ``time spent in deadhead 
transportation from a duty assignment to the place of final release is 
neither time on-duty nor time off-duty.'' Specifically, the Court held 
that the ``text, structure, and purposes of the statute persuade us 
that Congress intended that time spent waiting for deadhead 
transportation from a duty site should be limbo time. 516 U.S. at 162 
(emphasis added). Since the Court's 1996 ruling, the amount of limbo 
time crews have been forced to endure has skyrocketed, reaching crisis 
proportions in recent years. We simply do not believe that Congress 
intended work tours--albeit not duty tours--in excess of 20 hours to 
occur dozens of times every year, nor work tours in excess of 14 hours 
that number in the hundreds of thousands. Congressional intent must be 
discerned from Acts of Congress, not actions of RSAC and/or FRA. 
Accordingly, we believe it is necessary that Congress act, first, to 
correct the Court's erroneous construction of the statute, out of 
fidelity to the 1969 amendments, the judicial interpretation of which 
created the current problem.
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    When a crew is abandoned on a train for 4, or 8, or 12--or 20--
hours, all of the freight being carried by that train also is left in 
``limbo.'' Manufacturing that relies on ``just-in-time'' delivery of 
parts and supplies is severely disrupted, and the delivery of finished 
goods and products also is left in ``limbo,'' adversely impacting both 
retailers and consumers. Moreover, because the locomotives on the train 
must be kept running so that the train's braking system remains 
operational, gallon upon gallon of diesel fuel literally goes up in 
smoke without the train moving an inch, wasting an increasingly 
expensive and scarce resource and polluting the area where the train 
idles.
    Not only is limbo time bad business for America, it is bad business 
for the railroad industry itself. As I said earlier, much of the 
railroad industry is operating at or near full capacity. Record-high 
fuel prices make fuel-efficient rail freight and rail passenger 
transportation more attractive, placing additional pressure on 
capacity. Average freight train velocity industry-wide hovers around 20 
miles per hour. Every hour a crew--and its train--spends in ``limbo'' 
reduces velocity. Increasing velocity means freeing up locomotives, 
cars, and crews for more frequent use. An increase in velocity of just 
two miles per hour is the equivalent of increasing capacity by 10 
percent. If all that capacity was filled by demand the industry 
currently cannot meet, industry revenues also would rise significantly. 
Consequently, a dramatic reduction in limbo time is good for railroads, 
railroad workers, the economy, consumers, and the environment.
    Limbo time is one of the issues where stakeholders have widely 
varying opinions. The industry insists the limbo time is not a factor 
in fatigue. We, on the other hand, believe the Supreme Court got it 
wrong in 1996, and further believe that there should be no limbo time, 
except in the narrow circumstances provided currently in 49 U.S.C. 
Section 21102(a). That being said, we believe the House has laid a 
foundation for further efforts to resolve this issue, and we look 
forward to working with you on this matter.
    With respect to statutory time off-duty, we generally support the 
approach you have proposed. However, there are some unintended 
consequences I want to bring to your attention, because they need to be 
addressed in this process. One issue is the requirement that an 
employee have at least one period of at least 24 hours off-duty every 7 
days, unless the Secretary provides a waiver because there is a 
collective bargaining agreement in place with a different arrangement 
that provides an equivalent level of safety and protection against 
fatigue.
    We would respectfully request that you consider amending this 
requirement so that the 24-hour period is taken at the employee's home 
terminal. A sufficient body of study exists establishing that rest 
taken at the away-from-home terminal--in a hotel where meal options are 
severely limited--is qualitatively inferior to rest taken at the home 
terminal. This is not only a quality of life issue for our members: it 
clearly has safety implications.
    The other issue involves the impact of the proposed minimum 10 
consecutive hours off-duty every 24 hours. It has come to our attention 
that the proposed language may have some unintended consequences on 
commuter railroads, where their heaviest service is during the morning 
and evening rush hours, and a number of assignments work a few hours in 
the morning, then are released for periods in excess of 4 hours before 
working a few more hours in the afternoon and early evening. We 
continue to study this issue and look forward to working with you on 
addressing this situation.
    One other difference between the Senate and the House versions 
pertains to communication to a train employee during his/her off-duty 
period. Your bill would permit the Secretary to waive the prohibition 
against communications ``for commuter or intercity passenger railroads 
if the Secretary determines that it is necessary to maintain that 
railroad's efficient operations and on-time performance of its 
trains.'' Such communication--which we call a ``set-back'' or a 
``respite'' in railroad parlance--would be necessary in order to 
maximize a train employee's hours-of-service in situations involving a 
delay to the train they are scheduled to operate.
    Such an accommodation makes operational and economic sense. 
Furthermore, many of our collective bargaining agreements historically 
have contained similar provisions. Nevertheless, and despite the fact 
that a ``set-back'' provides increased time off-duty between trips, 
repeated occurrences severely disrupt a crew's ability to manage its 
sleep and meal requirements, and would defeat the safety purpose 
undisturbed rest is intended to serve. For this reason, we believe the 
legislation should limit the waiver to one ``set-back'' per trip.
    Section 106(d) of the bill would authorize the Secretary to 
regulate Hours-of-Service in a way that is broader than the companion 
provision of the House bill. Specifically, the Secretary would be 
authorized to issue regulations ``to make other changes to the maximum 
hours or minimum hours an employee or class of employees may be allowed 
to go or remain on-duty, or may be required to rest, that will 
significantly increase safety.''
    Read in context, this provision appears to empower the Secretary to 
authorize duty tours in excess of 12 hours, or to authorize rest 
periods shorter than those provided in the statute. We would be hard 
pressed to identify a situation--other than a bona fide emergency--
where crews should be on-duty longer than 12 hours. Further, other than 
the limited changes to off-duty periods listed above, we can think of 
few situations in which shorter off-duty periods would be appropriate. 
We believe that proposed Section 21109(a)(3) runs counter to the intent 
of the preceding two subsections.
    As I mentioned earlier, we believe a 10-hour call is a key 
component in fatigue mitigation. Accordingly, we strongly support the 
pilot project for a ``10-hour call'' that would be enacted as 49 U.S.C. 
Section 21109(e)(1)(A). Indeed, it is our position that Sections 
21103(a)(1)-(a)(2) could remain as currently written if a 10-hour call 
was instituted industry-wide. Furthermore--and singular to the 10-hour 
call concept--the contribution to fatigue of unexpected calls for work 
would be eliminated. We would prefer to see more than one 10-hour call 
pilot, and believe that the proposed 2 year deadline provides more time 
than is necessary to develop the program. We also strongly support the 
``calling window'' pilot project that would be enacted as 49 U.S.C. 
Section 21109(e)(1)(B), because similar pilots that have been attempted 
in the past have proven successful in fatigue mitigation.
    With regard to highway-rail grade and pedestrian crossing safety, 
which is addressed in Title II of the bill, we support your goals and 
applaud your leadership in addressing this important issue. We will 
follow Title II with keen interest, because grade crossing and 
pedestrian accidents take a heavy toll on our membership, both 
physically and emotionally. In that light, we also would ask that you 
consider an amendment to: (1) require the Secretary to issue 
regulations requiring railroads to implement an approved critical 
incident stress debriefing plan that includes counseling, guidance, and 
appropriate support services, (2) provide that an operating crew 
involved in a critical incident be relieved of duties immediately, and 
(3) provide that an employee witnessing a critical incident be relieved 
of duties as soon as feasible, and upon request.
    Concerning Title III, dealing with the FRA, we note that Section 
301 is less aggressive--in numbers and implementation schedule--than 
the House bill, which we support. We are confident that conference will 
produce authorization for enhancement of FRA's enforcement 
capabilities. Equally important is that the authorization be supported 
by the appropriations necessary to realize the legislation's goals.
    We are pleased to see that, by proposing Section 303, the Senate 
favors greater transparency for FRA activities. With regard to 
enforcement actions, however, I would urge you to consider the proposal 
by the House in Section 505 of H.R. 2095, which would mandate that 
reporting be on a monthly, rather than annual, basis. We also very 
strongly support proposed 49 U.S.C. Section 21020(a)(4), requiring 
annual reporting that quantifies locomotive engineer certification 
cases appealed to, and the average length of time required for 
decisions by, each of the three appellate levels established in 49 CFR 
Part 240.\2\
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    \2\ We similarly support Section 308, pertaining to the updating of 
FRA's website. The website is of inestimable value to us for research 
purposes, and FRA is to be lauded for the scope and volume of 
information and data that is made publicly available. Unfortunately, 
the website's design is not particularly user-friendly, and we hope 
Section 308 provides an impetus to overhaul the website's design. We 
would support a special appropriation, if one is necessary, to achieve 
this purpose.
---------------------------------------------------------------------------
    I also want to congratulate you, and express our appreciation, for 
the railroad safety enhancement initiatives proposed in Title IV. With 
respect to training, which is addressed in Section 401, we can think of 
no craft or class of railroad worker not impacted or governed in some 
manner by Federal rail safety statutes or regulations, and believe 
training should be afforded across the board, at least as to those 
statutes and regulations. Moreover, while we have no desire to require 
that the industry ``reinvent the wheel'' or develop duplicative 
training programs along side of those currently in place, we urge you 
to ensure that the proposed 49 U.S.C. Section 20162(d) exemption not be 
applied in a way that would permit current training programs to fall 
below the standards established by the Secretary in promulgating the 
regulations required by Section 20162(a).
    Regarding Section 402, pertaining to certification of certain 
crafts or classes of employees, we appreciate your acknowledgement of 
the increasingly complex nature of the railroad workplace. Having said 
that, however, we believe that at least four crafts or classes of 
railroad workers should be certified without the necessity of a study 
and report:

   Train Dispatchers are at the very center of railroad 
        operations, and are responsible for coordinating train 
        movements and track maintenance. The need to certify Train 
        Dispatchers will be heightened as development and 
        implementation of PTC technology continues to move forward.

   Conductors are co-responsible with certified locomotive 
        engineers for the safe movement of trains and for compliance 
        with a wide variety of Federal safety statutes and regulations, 
        including those governing movement of hazardous materials. The 
        federalizing of an additional three operating procedures, which 
        currently is in rulemaking, exposes Conductors to even greater 
        potential individual liability for civil penalties than they 
        currently are.

   Signalmen are responsible for the installation, inspection, 
        maintenance, and repair of railroad industry signaling systems, 
        including active grade crossing warning devices. They perform 
        safety-critical work each and every day and are exposed to 
        potential civil liability for violation of FRA regulations 
        similar to the exposure of Locomotive Engineers and Conductors. 
        As with Train Dispatchers, the need to certify Signalmen will 
        only increase as PTC technology matures.

   Carmen, who are subject to FRA regulations governing, and 
        are responsible for, inspection, testing, maintenance, and 
        repair of train brake systems. In recent years the minimum 
        distance between major brake inspections and tests has 
        increased, and the implementation of electronically controlled 
        pneumatic braking systems will increase these distances 
        further, making each inspection and test even more critical 
        than before.

    We appreciate your most serious consideration of our position on 
the subject of certification.
    Section 408 proposes to amend current 49 U.S.C. Section 20303 
requirements limiting movement of defective and insecure vehicles, and 
is patterned after the Administration's proposal on this subject. 
Presently, such movement is authorized only to the nearest available 
place at which repairs can be made. The crux of Section 408 is that 
``nearest'' would be redefined as meaning ``the closest in the forward 
direction of travel.'' Thus the bill proposes that a car with a defect 
that is discovered one mile after a train has passed a repair facility 
be continued in service to the next such facility, even it is 200 miles 
away or more.
    The defects covered by this statute are so serious that the car no 
longer complies with the requirements of Federal law; mere garden-
variety defects are not included. We are disappointed that the Federal 
agency responsible for safety oversight of the railroad industry would 
propose a change that would diminish safety for the sake of a 
railroad's operational convenience, and we do not support this section.
    We are pleased to see that ``dark territory'' switch position 
detection is among the technologies addressed in your bill. As you 
know, dark territory has posed a particular problem and is the subject 
of National Transportation Safety Board recommendations. However, we 
prefer the approach proposed in H.R. 2095, which would require 
protection or an operational alternative. Switch position detection 
technology already is developed to the point where it is available off 
the shelf, and will be a component of PTC systems being designed and 
tested. For the reasons I stated at the beginning of my testimony, 
there is no valid financial reason why the Nation's railroads should be 
permitted to further delay in adding this vital safety enhancement.
    At the same time, I want to congratulate you on the proposals in 
Section 410 to amend Federal law in connection with employee sleeping 
quarters. Specifically, getting our Rail Conference Brothers and 
Sisters in the Brotherhood of Maintenance of Way Employees Division out 
of barbaric camp cars is something that is long overdue. We 
respectfully request that you also take one more step, and eliminate 
the 49 U.S.C. Section 21106(2) clause grandfathering pre-1976 
constructed sleeping quarters located in switching or humping yards.
    We also support Title V, which would establish a system to provide 
assistance to families of those involved in a rail passenger disaster. 
With regard to the jurisdiction of the Surface Transportation Board 
over solid waste facilities, we agree with the position of the 
Association of American Railroads.
    Before closing, I also want to briefly touch on a few items that 
are not presently in the draft legislation you are considering. Section 
606 of H.R. 2095 would prohibit a railroad from denying, delaying, or 
interfering with medical or first aid treatment needed by a railroad 
worker who is injured on the job. In addition, the injured worker would 
have the right to be promptly transported to the nearest medical 
facility equipped to render the necessary care, and workers would be 
protected from retaliatory action triggered by the exercise of these 
rights. Harassment of injured workers is a serious problem on some 
railroads, and current FRA regulations covering the subject are wholly 
inadequate.
    Section 608 of H.R. 2095 requires the Secretary to submit a report 
to the committees of Congress having jurisdiction on the effects of the 
locomotive cab environment on the safety, health, and performance of 
train crews. Cab conditions vary widely throughout the industry, 
despite the establishment of FRA standards governing many aspects of 
this issue. Conditions that negatively impact a crew's physical well-
being or ability to focus attention diminish safety, and they should be 
identified for consideration of reasonable additional remediation.
    We also support the requirement to document inspection and 
maintenance activities, and other pertinent safety and security 
information, concerning tunnels which are longer than 1,000 feet and 
located under a city with a population of 400,000 or greater, or carry 
five or more scheduled passenger trains per day, or 500 or more 
carloads of toxic-by-inhalation hazardous materials per year, as 
proposed by H.R. 2095 Section 609. And we strongly support Section 616 
of H.R. 2095, which provides clarification regarding state law causes 
of action. This is necessary, in our view, to correct an injustice 
resulting from a misapplication of the preemption provisions contained 
in 49 U.S.C. Section 20106.
    Finally, there are three additional items I want to mention briefly 
that presently are not included in any draft legislation. First, 49 
U.S.C. Section 20103 should be amended to provide that whenever the 
Secretary issues a regulation which incorporates a standard of a 
nongovernmental entity, such as the Association of American Railroads, 
any subsequent changes to such standards shall be subject to 
rulemaking. Second, 45 U.S.C. Section 797j, which pertained to 
regulation of Conrail prior to the 1996 transaction involving CSX and 
NS, should be repealed because it no longer has relevance. Third, a 
section should be added to Title 49 requiring the Secretary to prohibit 
crews reporting for duty in Mexico from operating trains within the 
United States, and crews originating in the United States from 
operating trains into Mexico.
    Before closing, I again want to highlight the importance of making 
significant progress in fatigue abatement, with resolving the limbo 
time crisis and providing crews with notice to report for work in a 
manner that allows them to optimize available rest time. We appreciate 
the steps you have already taken, and look forward to working with you 
to produce meaningful legislation that will appreciably enhance rail 
safety.
    Once again, I thank you for the opportunity to testify today, and 
would be pleased to respond to any questions you may have at the 
appropriate time.

    Senator Lautenberg. Thanks very much, Mr. Tolman.
    Mr. Solow?

  STATEMENT OF DAVID SOLOW, CEO, SOUTHERN CALIFORNIA REGIONAL 
 RAIL AUTHORITY/METROLINK; VICE CHAIR--COMMUTER AND INTERCITY 
    RAIL, AMERICAN PUBLIC TRANSPORTATION ASSOCIATION (APTA)

    Mr. Solow. Chairman Lautenberg and members of the 
Subcommittee, on behalf of the American Public Transportation 
Association, its more than 1,500 member organizations, we'd 
like to thank you for the opportunity to testify on the Rail 
Safety Enhancement Act of 2007.
    I am the Chief Executive Officer of the Southern California 
Regional Rail Authority, which provides commuter rail service 
in Los Angeles area. I also serve as acting Vice Chairman for 
Commuter Intercity Rail, and might add, Mr. Chairman, I learned 
everything I know about commuter rail from working in New 
Jersey Transit from 1981 to 1990.
    Metrolink began service in 1992, we operate service over a 
500-mile network over 7 lines. We serve more 43,000 passengers 
daily, from 54 stations.
    Ridership continues to grow at all the commuter rail 
systems, and new service is part of the picture. Passengers 
took 435 million trips on commuter railroads last year, a 3.2 
percent increase over 2005. My service--the Metrolink Service--
grew by 5.25 percent. Just in comparison, Amtrak has about 25 
million passenger trips. So, we have vastly more ridership than 
Amtrak provides on a daily basis.
    Let me state for the record that rail safety is a priority 
for all commuter rail systems who are carrying people. 
Accidents in the railroad industry have declined in 8 out of 
the last 10 years, and the safety of rail passengers far 
exceeds those who drive.
    Commuter rail systems are different from freight railroads. 
Commuter rail employees almost always return to their homes 
each night, and they generally report for duty in an assigned 
place and time each day. The peak-period nature of commuter 
rail service, means employees often work split shifts during 
the day. Hours-of-service laws and limbo time are a 
consideration in the work schedules of commuter rail employees, 
and any collective bargaining agreements.
    Changing the hours-of-service laws that reduce limbo time 
and limit duty time, may force commuter rail services to hire 
more crews who will work fewer hours each week, and have fewer 
opportunities to work overtime. Rather than mandate specific 
changes in hours-of-service laws, APTA asks that you consider 
directing the FRA--as Administrator Boardman suggested--to 
study fatigue in commuter rail operations, and use the Railroad 
Safety Advisory Committee process for the development of any 
changes.
    Commuter rail systems are public agencies, that will pass 
on increased costs of such changes to riders, and/or the 
taxpayers who help us in supporting our service. Fare increases 
are likely to drive riders back to commuting by automobile, 
undermining national goals related to conserving energy, and 
reducing air pollution and congestion.
    While the bill does not directly address Federal preemption 
of rail safety law, APTA strongly supports preservation of 
Federal preemption in the case of rail safety laws, APTA 
generally agrees with the American Association of Railroads on 
preemption, as this issue affects all railroads equally.
    While we understand the bill makes statutory changes in 
hours-of-service laws, APTA urges you to consider 
grandfathering commuter rail systems under existing law, 
subject to FRA review of hours-of-service laws, as they relate 
to commuter systems, with any changes based on FRA 
recommendations developed under the Railroad Safety Advisory 
Committee process, that provides for both industry and labor 
input and collaboration. APTA believes that the increase in 
off-duty time from 8 hours to 10 hours during the prior 24 
hours, is unnecessary for commuter rail employees, and urges 
the Committee to retain the 8 hours off-duty, which has worked 
well in the past.
    We appreciate the bill that permits the Secretary to waive 
prohibitions on communicating with employees during off-duty 
times for commuter railroads under certain conditions, because 
that would help us when we call in replacement crews for 
employees who call in sick.
    We do have concerns about reductions in use of limbo time. 
Use of limbo time for commuter rail employees returning from 
duty assignments can have a significant impact on railroad 
operations--some of the commuter railroads have estimated the 
elimination of limbo time will increase operating costs by as 
much as 10 to 15 percent. Again, we believe that the potential 
of waiver authority by the Secretary or a careful review of the 
use of limbo time by commuter rail systems by the FRA will 
conclude that current law protects against fatigue.
    We also note the bill initially permits up to 30 hours of 
limbo time, per employee, per month in certain circumstances, 
and authority to retain up to 20 hours of limbo time per 
employee, per month.
    While we appreciate the bill's specific exceptions for 
limbo time, and limited use of limbo time each month, we 
suggest that preserving at least 30 to 40 hours of limbo time 
per employee, per month--subject to the FRA Rail Safety 
Advisory Committee process--will be useful to commuter rail 
systems.
    We appreciate the potential waiver authority in the case of 
24 consecutive hours off in the past consecutive 7 days. We 
also appreciate that the bill permits the Secretary to waive 
this requirement if a collective bargaining agreement provides 
the equivalent level of protection against fatigue.
    If significant changes in hours-of-service laws for 
commuter rail employees are required, we ask the Committee to 
consider a 2-year phase-in period to give the industry 
sufficient time to hire, train, and qualify new employees. In 
today's tight job market, we need time to hire a trained 
workforce.
    While commuter rail systems are supportive of Positive 
Train Control, and other systems that improve safety and 
efficiency, in the environment where freight and commuter 
trains run together, we urge the Congress to provide as much 
flexibility in the implementation of these systems. Many 
concerns are about the interoperability of such systems and 
their cost, we welcome Federal assistance for implementation 
costs.
    We applaud the Committee for inclusion of prohibitions on 
public disclosure of required rail safety analysis records. We 
want to be sure that such provisions adequately protect 
commuter railroads from increased liability.
    APTA urges Congress to involve the commuter rail industry 
in any effort to develop regulations, and development of 
training programs to certification for rail system employees or 
crafts.
    We thank the Committee for the opportunity to testify 
today, we want to work with the Committee and the Congress to 
develop rail safety legislation that affects commuter rail 
systems in the United States.
    Thank you very much.
    [The prepared statement of Mr. Solow follows:]

 Prepared Statement of David Solow, CEO, Southern California Regional 
  Rail Authority/Metrolink; Vice Chair--Commuter and Intercity Rail, 
           American Public Transportation Association (APTA)
Introduction
    Chairman Lautenberg and Members of the Commerce, Science, and 
Transportation Subcommittee on Surface Transportation and Merchant 
Marine Infrastructure, Safety, and Security, on behalf of the American 
Public Transportation Association (APTA), I thank you for this 
opportunity to testify on the Railroad Safety Enhancement Act of 2007.
    Mr. Chairman, my name is David Solow. I am the Chief Executive 
Officer for the Southern California Regional Rail Authority (SCRRA) or 
Metrolink, which provides commuter rail service in the Los Angeles, 
California area. I also serve as Vice Chair for Commuter and Intercity 
Rail on APTA's Executive Committee, which is the association's policy 
board. Metrolink began service in 1992. We operate service over a 500 
mile network, over 7 lines, three of which are in conjunction with two 
different Class 1 freight railroads. We provide service to over 43,000 
passengers daily at 54 stations. On a daily basis, Metrolink dispatches 
145 of its trains, 26 Amtrak Intercity trains and 50 to 70 freight 
trains. With the extent of our operation, we regularly deal with 
challenges similar to those faced by commuter rail operators in 
communities across the Nation.
    APTA member organizations include all of the commuter rail systems 
which provide passenger service in communities throughout the Nation. 
All of these systems are regulated by the Federal Railroad 
Administration (FRA) and all will be affected by changes in Federal 
rail safety laws.
    Ridership grew at almost every commuter rail system in the Nation 
in 2006 and many communities are expanding or initiating new service. 
Passengers took 435 million trips on commuter railroads last year, an 
increase of 3.2 percent over 2005. At Metrolink, ridership grew by 5.25 
percent in 2006. New commuter rail service recently started in 
Nashville and Albuquerque, and more new systems are in advanced stages 
of development in Minneapolis, Salt Lake City, Portland, Charlotte, and 
Denver. Still more communities are considering commuter rail as a way 
to help reduce congestion, provide mobility, and help people beat the 
high cost of gasoline.
Overview
    First and foremost, let me state for the record that rail safety is 
a priority for APTA commuter rail systems. Overall, accidents in the 
railroad industry have declined in eight of the last 10 years and the 
safety of rail passengers is 20 times better than for those who drive 
automobiles. Second, commuter rail systems are substantially different 
from freight rail operations. Commuter rail employees, unlike employees 
on freight railroads, almost always return to their homes each night, 
and they generally report for duty at an assigned place and time each 
day. The peak-period nature of commuter rail service means that many 
employees often work split shifts during a day. Limbo time is an 
important consideration in the work schedules of commuter rail 
employees and since current law regarding hours-of-service and limbo 
time are important considerations in collective bargaining agreements 
it may make sense to phase in any changes in the law as such agreements 
are renegotiated and renewed.
    Major changes in current Hours-of-Service (HOS) laws that 
substantially reduce limbo time and limit duty time are likely to force 
commuter rail systems to hire more crews, particularly relief crews 
that fill in for sick employees, and reduce the number of hours 
employees can work each week. They may also result in employees having 
fewer opportunities to volunteer for overtime on days off. Changes in 
HOS laws based on efforts to address fatigue in freight rail operations 
may unnecessarily impact commuter rail employees and the taxpayers who 
support commuter rail service.
    Rather than mandate specific changes in current HOS laws, APTA 
urges Congress to direct the FRA to study fatigue as it specifically 
relates to commuter rail service, utilize the Rail Safety Advisory 
Committee (RSAC) process for development of any proposed changes to HOS 
laws, and make recommendations on any proposed changes that come from 
that process.
    Commuter rail systems are public agencies that will necessarily 
pass on increased costs associated with HOS changes to their riders 
and/or state and local taxpayers. If fare increases are required, those 
increases will drive riders back to commuting by automobile, thereby 
undermining national goals related to conserving energy, and reducing 
air pollution and congestion on our highways. Commuter rail operators 
have an excellent safety record and current HOS law related to fatigue 
have ensured the safe operation of commuter rail systems around the 
country.
    Among the bill's provisions that most affect commuter rail systems 
are changes in the Hours-of-Service (HOS) laws, including the 
substantial limitations on limbo time, requirements for Positive Train 
Control, the potential new certification of workers, and increases in 
civil penalties. We appreciate that the bill limits the disclosure of 
official information submitted by commuter rail systems to the Federal 
Government as part of risk analysis and reduction programs, but want to 
be sure that these limits effectively eliminate liability based on a 
commuter system's good faith efforts to cooperate with Federal 
authorities and improve safety and security.
    While this bill does not directly address current Federal pre-
emption of rail safety laws, APTA strongly supports preservation of 
Federal pre-emption in the case of rail safety laws. We believe that 
Federal pre-emption provides necessary consistency and prevents the 
application of inconsistent standards at the state or local level that 
would produce an unworkable regulatory patchwork for commuter rail 
systems. APTA supports the position of the Association of American 
Railroads on pre-emption since this issue affects all railroads 
equally.
Hours-of-Service Laws
    The bill makes several important changes in Hours-of-Service (HOS) 
laws and limbo time that may adversely impact commuter rail systems 
without reducing fatigue or improving safety. In general, APTA believes 
that commuter rail systems should be grandfathered under existing law 
subject to FRA review of HOS laws as they specifically relate to 
commuter rail systems, with any changes in HOS laws based on FRA 
recommendations developed under the Rail Safety Advisory Committee 
(RSAC) process that provides for industry and labor input and 
collaboration.
    APTA believes that the increase in off-duty time from 8 hours to 10 
hours during the prior 24 hours is unnecessary for commuter rail 
employees. We believe that our excellent safety record proves that the 
current requirement that a commuter rail employee has had at least 8 
consecutive hours off-duty during the prior 24 hours ensures that 
fatigue does not affect safety, especially since commuter rail 
employees can almost always spend their off-duty hours in their own 
homes. The fact that commuter rail employees are generally scheduled to 
work regular daily shifts, and that they often have the opportunity for 
an interim rest period of at least 4 hours between shifts, at rest 
facilities, should all be factors considered before any change in the 
minimum daily off-duty period is contemplated for commuter rail 
employees, either by legislation or regulations.
    The change in the draft Senate bill that would prohibit 
communications with employees during their daily off-duty time would 
also make it more difficult to call in on-call employees to cover for 
employees who call in sick or do not report for work, but we appreciate 
that the bill permits the Secretary to waive prohibitions on 
communications for commuter and intercity passenger railroads under 
certain conditions. We urge the committee to consider a specific waiver 
of these prohibitions on communications for commuter railroads, subject 
to an FRA study, with any recommendations developed under the RSAC 
process.
    APTA also has concerns about provisions in the draft bill that 
significantly reduce the permissible use of limbo time. The bill 
changes current law which now considers time spent in deadhead 
transportation from a duty assignment to the place of final release to 
be neither time on-duty nor time off-duty--so-called limbo time. The 
use of limbo time for commuter rail employees returning from duty 
assignments, especially those employees filling in for sick employees, 
and the impact of this limbo time on fatigue, should be studied by the 
FRA and considered in the RSAC process before any changes are made. 
Once again, the fact that commuter rail employees have rest time during 
the day, off-duty time at home, and working conditions different from 
freight rail employees should be considered and fully reviewed before 
any changes are made. We also note that the bill essentially permits up 
to 30 hours of limbo time per employee per month in certain 
circumstances during the year after the bill's enactment, and authority 
for the Secretary to issues regulations allowing a maximum of 20 hours 
of limbo time per employee per month under such conditions within 2 
years of the bill's enactment.
    We also recognize that the bill provides a number of exceptions, 
based on weather, accidents, major equipment failures, and other 
specific conditions, when deadhead time returning from a duty 
assignment to a place of final release may be considered limbo time. 
While we appreciate these specific exceptions and a limited use of 
limbo time each month, we suggest that the bill at least preserve the 
full 30 hours of limbo time per employee per month subject to an FRA/
RSAC process to review the use of limbo time by commuter rail systems.
    We note that the bill changes HOS laws by requiring that an 
employee has had at least 24 consecutive hours off in the past 
consecutive 7 days. We also appreciate that the bill permits the 
Secretary to waive this requirement if a collective bargaining 
agreement provides a different arrangement which provides an equivalent 
level of safety and protection against fatigue for affected employees. 
We believe that employees will want to take advantage of this ability 
to have this issue considered in collective bargaining agreements and 
we hope that an efficient process for such waivers can be established.
    Finally, if significant changes to HOS laws for commuter rail 
employees remain in this legislation, we urge the Committee to allow a 
2 year phase-in period to give the industry sufficient time to hire, 
train, and qualify new employees. In today's very tight job market, we 
need time to build up the required workforce.
Positive Train Control
    We note that the bill requires each Class 1 railroad, railroads 
with an inadequate safety record, and intercity and commuter rail 
systems to develop safety risk reduction programs, and that these 
programs must include as part of the required technology implementation 
plan a schedule for implementation of a Positive Train Control system 
by December 31, 2018. While APTA's commuter railroad system members 
want to consider the implementation of Positive Train Control systems 
and other signal systems that improve safety and enhance the efficiency 
of running commuter rail trains and freight trains in mixed operational 
environments, we urge the Congress to provide as much flexibility in 
the type of systems used and their implementation. We also remain very 
concerned about the interoperability of such systems with various 
freight and commuter rail systems sharing multiple railroad trackage 
such as is the case in Washington, D.C., Chicago, and Los Angeles. As 
public agencies, while supportive of PTC generally, we remain concerned 
about the substantial cost and support Federal assistance for 
implementation costs. In addition to cost concerns, we want to be sure 
that different trains from different railroads are able to respond to 
signal systems on different railroads in a consistent and predictable 
manner.
Prohibition on Public Disclosure of Required Records
    APTA commuter rail systems applaud the committee for the inclusion 
of prohibitions on the public disclosure of required railroad safety 
analyses records, but we want to be sure that such provisions 
adequately protect commuter railroads which submit such information 
from increased liability as a result of their cooperation. For 
instance, we hope that the prohibitions on the disclosure of such 
information also prevent the release of information collected under 
Title II of the bill, which requires the submission of certain 
information on grade crossings for the development of a national grade 
crossing inventory.
Grade Crossing Safety and Trespasser Protection
    We appreciate the Committee's efforts to improve safety at highway-
rail grade-crossings. We also appreciate the bill's directive that the 
Secretary evaluate and review current local, state, and Federal laws 
regarding trespassing on railroad property, vandalisms affecting 
safety, and violations of warning signs for development of model 
prevention strategies and laws at the state and local level. As noted 
earlier, we hope that any information on grade crossings and related 
safety reviews collected under this title is subject to prohibitions on 
the public disclosure of required safety information included under 
Title I. We have also been supportive of the $220 million in Federal 
Highway Administration funding that is authorized annually under 
SAFETEA-LU for grade crossing safety and support efforts to see that 
those funds are fully used to improve safety at highway railroad grade 
crossings.
Railroad Safety Enhancements
    The bill directs the Secretary to issue regulations within 1 year 
of the bill's enactment requiring railroads, railroad carrier 
contractors, and subcontractors to develop training plans for crafts 
and classes of employees. It also directs the Secretary to submit 
recommendations to Congress on whether certification of certain crafts 
or classes of railroad employees, contractor employees, and 
subcontractor employees is necessary to reduce accidents and improve 
safety. APTA urges Congress to involve the commuter rail industry in 
the process used to develop regulations for the development of training 
plans and in the process used to determine whether certification is 
beneficial.
    We also appreciate that the bill directs DOT to study and report on 
the safest, most efficient and cost effective way to deal with efforts 
to minimize safety risks associated with platform gaps as required 
under the Americans with Disabilities Act. We urge Congress to ensure 
that the commuter rail industry has an opportunity to participate in 
the study and to make comments on any proposed recommendations.
    Finally, while we note that this issue is not covered by the bill, 
we would like to be sure that transit police have the same flexibility 
as railroad police to cross state lines to protect commuter rail 
equipment, facilities, and operations. In the case of New Jersey 
Transit, their railroad police are part of the agency's transit police, 
with jurisdiction over bus, light rail, and commuter railroads, and as 
a result are not classified as railroad police with such authority.
Conclusion
    We thank the Committee for this opportunity to testify on the draft 
version of the Railroad Safety Enhancement Act of 2007. We want to 
express our willingness, on behalf of the American Public 
Transportation Association (APTA), and particularly its commuter 
railroad systems, to work with the Committee, and the Congress, as it 
develops rail safety legislation that affects commuter rail systems in 
the United States.
    We strongly believe, as reflected by the development and expansion 
of commuter rail systems in communities across the Nation, that the 
public wants and supports commuter rail service. Commuter rail systems 
offer an attractive alternative for commuters who want an alternative 
to driving to and from work on a daily basis. These commuters help to 
reduce traffic congestion and energy consumption, they help make our 
highways work more efficiently for those who must drive, they reduce 
their own commuting costs, and they often experience a better quality 
of life. We are happy to try and answer any questions that members of 
the Committee may have.

    Senator Lautenberg. Thank you.
    Senator Smith. Mr. Chairman?
    Senator Lautenberg. Yes?
    Senator Smith. With your indulgence, I have to go to a 
Finance Committee markup, and I will submit to the witnesses my 
questions. And I thank you very much, I appreciate all of your 
testimony.
    Senator Lautenberg. We will keep the record open, and 
thanks very much, Senator, for your comments.

               STATEMENT OF HON. JOHN F. KERRY, 
                U.S. SENATOR FROM MASSACHUSETTS

    Senator Kerry. Mr. Chairman, I thank you. I apologize, 
because, likewise I'm late, and I have to go, also, to the 
Finance Committee markup. But I wanted to come and just welcome 
John Tolman, here, as a witness, I've known him for a long 
time, I know his family, and I know what an expert he is on 
rail policy.
    And I want to congratulate you and Senator Smith for this 
initiative, and this effort. I know there's some dispute over 
the question of, what constitutes duty hours, and how that 
works. And there's a little difference among some of the 
witnesses, and I understand that. And I'll look forward to 
following up with staff and figuring it out.
    But the bottom line to me is, you want to have rail workers 
who are not excessively fatigued, you want to reduce accident 
possibilities, you want also to treat workers thoughtfully and 
intelligently. And I think that this bill seeks to do that, and 
I look forward to, working out the details with you, and I 
thank you for that. I certainly welcome all of the witnesses, 
but you know, forgive me a little chauvinism--if you don't 
mind--and personal privilege.
    Thank you.
    Mr. Tolman. Good to be here.
    Senator Lautenberg. Thanks very much, Senator Kerry.
    Senator Kerry. Again, if we can submit some written 
questions?
    Senator Lautenberg. Absolutely. And I know that your 
relationship to Mr. Tolman is totally understood. Though he 
lives, I believe, now in Ohio.
    Senator Kerry. Well, I've got strong feelings about Ohio, 
too, I want you to know.
    [Laughter.]
    Senator Lautenberg. I didn't mean to bring up a sore 
subject.
    [Laughter.]
    Senator Kerry. Well, he was on the right side of Ohio, you 
know.
    Senator Lautenberg. Mr. Tolman has an accent that suggests 
that maybe he comes from another part of the country. We kind 
of like it, and we're good friends.
    Thanks very much, Senator Kerry.
    And I'm joined also by two other colleagues, and we'll try 
to move things along, we'll take 5 minutes each for questions.
    Mr. Boardman--if we authorize funding for the Safety Risk 
Reduction Program--what kind of benefits might we expect from 
that?
    Mr. Boardman. Our expectation, Senator, is that the entire 
reason why we were looking at a Safety Risk Reduction Program 
is to build a stronger safety culture, and, in the next five 
years, reduce overall accidents by 50 percent. And we've 
already begun that in some of the actions that we're already 
working with, some of the railroads: on close-call reporting; 
track joint bar inspection; a total quality index on track. 
What we're really doing is looking for the ability to use 
precursor data: things that would indicate to us that there is 
a risk out there. There needs to be a commitment, there needs 
to be a systematic and objective look at the data itself (some 
problem solving, corrective activities), and then there is a--
we have to have some kind of sustaining mechanism. But our goal 
is a 50-percent reduction in five years.
    Senator Lautenberg. Mr. Hamberger, would the railroads 
support this kind of safety regimen?
    Mr. Hamberger. Absolutely, Mr. Chairman, in fact, I think 
from our standpoint, we are in fact moving, and have moved in 
that direction from the standpoint of predictive maintenance. 
And as I testified before this Committee on May 22, the new 
technologies that we are employing at the roadside, as the 
trains go by trying to keep track of out-of-shape wheels, 
they're trying to determine what is the thickness of the brake 
pad, and using sonar and laser technologies to try to stop 
something from happening, and not just react to it after it 
happens. And so, this holistic approach that is in the bill, we 
support very much, thank you.
    Senator Lautenberg. Well, it's interesting to see the 
relative unanimity here of interests in getting the bill 
underway, and safety rules underway, and adjusting the hours-
of-service so that people aren't asked to do tasks that are 
unreasonably taxing when fatigue could be a terrible factor in 
the operation of the railroad.
    But, this week a Federal court struck down a DOT proposal 
on reforming hours-of-service rules for truckers. This is the 
second time that a court stopped the Administration's attempt 
to allow more consecutive hours on the job. Now, after two 
failures to get this right in the trucking industry, don't you 
think it's risky to give blanket authority to the Department to 
set this standard for railroad employees? Who wants to comment?
    Mr. Tolman?
    Mr. Tolman. Senator, I believe you're right on point. And 
frankly that's--some things belong in the RSAC process, and can 
work well, but I sincerely think that Congress--or I should 
say, the Supreme Court created this quagmire of limbo issue, 
and Congress has to set that, that particular issue straight. I 
don't believe that it belongs in an RSAC process, there are 
only two stakeholders in the RSAC process--or three, 
stakeholders--the signalmen--four, I'm sorry--signalmen, 
dispatchers, United Transportation Union, Brotherhood of 
Locomotive Engineers.
    That's why it doesn't belong in an RSAC process. I think 
that Congress has to create a parameter. I think you did in 
this bill, I applaud you for doing that, but I just don't think 
the limbo issue needs to go down that road. Other issues, 
fatigue-related, can go down that road, and maybe should go 
down that road if--and you have it correct--with restrictions, 
with time parameters. If you don't do A, then you go to B. And, 
I applaud you for that.
    Senator Lautenberg. Do you believe our bill provides FRA 
with enough latitude to update the hours-of-service in a way 
that will not jeopardize safety?
    Mr. Boardman?
    Mr. Boardman. I was going to go back to the other question, 
but that's fine.
    Senator Lautenberg. If you can do it in a hurry.
    Mr. Boardman. Let me just go back to the other question; 
this is a place that John and I don't agree with each other. I 
think that when the Supreme Court looked at one of my sister 
agencies (FMCSA) what they said was, one of the things they 
said was, that there wasn't enough discussion with 
stakeholders, with folks that really had an opportunity to say 
what the issues were.
    I think one of the things that I've noticed and I 
compliment--and John's been around a lot longer than I have in 
the RSAC process--is that you really do get into the nitty-
gritty of those kinds of discussions in the RSAC process. So, I 
see that as an important element of what is needed is to make 
sure that whatever comes out of this is the appropriate thing. 
RSAC gives us the flexibility, because we can discuss those 
things.
    To your question right this minute--just looking very 
quickly at it, and your bill for today--we see a lot of very 
serious and good thought in this process of hours-of-service. 
And we want to continue to work with the Committee to come 
together to a solution.
    Senator Lautenberg. Thanks very much. Just an, an ad lib to 
what you've said--very few people have been around here longer 
than I have, so----
    [Laughter.]
    Senator Lautenberg. Mr. Tolman, has been around long----
    Senator Carper, a Senator from a State that, though small, 
has a very active interest in railroads, both passenger and 
freight, and we're happy to have him here with us.
    Senator Carper?

              STATEMENT OF HON. THOMAS R. CARPER, 
                   U.S. SENATOR FROM DELAWARE

    Senator Carper. Thank you, Mr. Chairman.
    Gentlemen, welcome, thank you for your presence today, for 
your testimony, and for responding to our questions. 
Particularly your insights on this proposal from Senator 
Lautenberg.
    My first question is to Administrator Boardman--I almost 
called you Admiral Boardman, I saw ``ADM''--I'm an old Navy 
guy, I almost promoted you here.
    But, in your testimony I think you discussed permitting 
railroads to comply with an improved fatigue-management plan, 
as an alternative to complying with benchmark limits set forth 
in any perspective regulations, in fact, I think those are your 
words.
    And I would just ask, what minimum standards, or factors, 
would the FRA expect to see in those management plans that 
you're alluding to?
    Mr. Boardman. I think, Senator, that one of the things that 
we really want to do, and it actually ties in to the answers to 
the last questions, is to discuss those principles that we 
think are the scientific results that we've really found in 
fatigue management.
    For example, there are four of them that I'd like to really 
talk about for just 1 second. And that is, that we know at this 
point in time that it really takes 8 hours to feel rested. And, 
in the law that currently exists (recognizing that there are 
some changes proposed), but in the current law, if you worked 
11 hours and 59 minutes, you'd get 8 hours off. And the call 
practice right now, is to be called as much as two hours 
beforehand. That in and of itself, we know immediately, can't 
give the kind of rest that an employee really needs.
    In 1996, there was a study done that found the average 
engineer got just a little bit over seven hours of sleep a 
night. And in the more recent studies that we've looked at, 
they've shown that there's another issue here--with 12 hours 
off, the average amount of time for sleep is 6.1 hours, and 
with 9 hours off, it's about 4.5 hours. In fact, it is that the 
more time that a person has off, the more opportunity the 
person has to get rest. And with the less time, what we're 
seeing is a sleep deficit occurring. So, it's that kind of 
scientific knowledge that will help us determine those 
flexibilities with the railroads.
    The hours-of-service laws do not take time of day into 
account at this point in time. Yet, most people sleep best at 
night. If you quit at dawn, you've got the same amount of time 
off as somebody that gets off in the evening. And what we find, 
and what the scientists have found is, that when you're done 
between 5 a.m. and noon, that's the worst possible time for you 
to get back to sleep. So, we'd like to see those kinds of 
issues addressed in anything in the future.
    We, third, we know today that the circadian rhythm, or that 
24-hour sleep-wake cycle, can be rapid, can be disrupted with 
rapid changes in assignment. It can affect your physiological 
functions--digestion, temperature regulation--kind of like jet 
lag coming from the West to the East. And under the current 
hours-of-service laws, it forces a sleep-wake cycle that's less 
than 24 hours in its pattern, and it's highly unnatural, and 
it's difficult to adapt to. So, we would want them to address 
that, as well, for flexibility.
    And then the fourth area that we would really want them to 
address would be the kinds of things that recent studies have 
indicated that less than seven hours of sleep may have other 
consequences, and they're costly consequences for everybody. 
They're obesity. They're diabetes. They're cardiovascular and 
hypertension problems. It's anxiety. It's a depressed mood 
(that's what I tell my wife), and it's alcohol use (and I don't 
tell her that).
    [Laughter.]
    Mr. Boardman. Thank you.
    Senator Carper. Sounds like pillow talk.
    Thanks, thank you for that response.
    This is a question, really, for Administrator Boardman, for 
Mr., is it Solow? Solow. Has your name ever been mispronounced?
    Mr. Solow. Many times.
    Senator Carper. All right. Well, not today.
    Mr. Hamberger, welcome. Nice to see you.
    In hearings about railroads, you know, we hear a lot about 
grade crossings, I used to hear a lot about those when I served 
on the Amtrak Board. But, it often is seen as solely a railroad 
issue, even though half of the crossing equation is, as you 
know, is a road. And, I just wondered--how engaged have State 
DOTs been in addressing grade crossings and their safety? How 
aggressively have the States sought to invest $220 million in 
funding that we authorized in SAFETEA-LU for grade-crossing 
safety?
    Mr. Solow. Mr. Carper?
    Senator Carper. Mr. Solow.
    Mr. Solow. Senator Carper--we are very aggressive in 
California. We have many grade crossings. Just, for a little 
bit of the history, during the WPA you spent a lot of money on 
the East Coast on grade separations. We spent them on water 
projects. So, we have all these railroads and all these grade 
crossings which we now have to address. And we're spending a 
lot of time and effort in the urban areas, because we have very 
high vehicular traffic, where we have very high commuter rail 
and passenger rail and freight traffic.
    So, we're spending a lot of our efforts working with the 
FRA, as a matter of fact, to do as much in terms of new 
technology at grade crossings--median barriers, four-quad 
gates, predictors in the road surface, those type of things--to 
attempt to improve grade crossings as quickly as we can. We 
know we're not going to get enough money for all of the grade 
separations we'd like. So, we're putting all of our time and 
effort, beside grade separations, to make vehicular traffic as 
safe as possible at grade crossings. And it's a--it's a strong 
effort by both local agencies in California, for example, and 
the State.
    Is there enough money? No. But, we are spending as much as 
we possibly can.
    Senator Carper. My time is expired, but if I could have 
just another moment or so, Mr. Hamberger--could you just, 
quickly?
    Mr. Hamberger. Yes, in addition to all of that good work 
that's going on, I did thank Chairman Lautenberg before you 
came in, Senator Carper I know you, also, have done a lot at 
the Environment and Public Works Committee to fully fund the 
Section 130 grade-crossing program.
    Our members are working with local communities, in an 
effort to work cooperatively where there might be 10 crossings 
in a town, to help fund a program where several of those might 
be closed, but add quad gates, or even grade-crossing 
separations at the others.
    And, so we take this very seriously. And, I think, the 
states are stepping up. And one of the, of course, major 
accomplishments is to get the word out, through Operation 
Lifesaver, how important it is, and that it takes a mile for a 
train to stop. A number of our members are putting cameras on 
the head-end of the trains, so that we can go back into the 
communities, and try to educate people that, going around, and 
it's just a very eerie scene to see, where the third car in 
line at a crossing all of a sudden comes around a gate that's 
down. And we need to try to educate the American public, that 
that is just not a smart play. And, I know that the Federal 
Railroad Administration is very involved in that, as well.
    Senator Carper. Thank you.
    Thank you, Mr. Chairman.
    Senator Lautenberg. Senator Klobuchar?

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

    Senator Klobuchar. Thank you, Mr. Chairman, and thank you 
to our witnesses for being here. I think I said at the last 
hearing that this has been a concern in our state, we've had 9 
reported fatalities in 65 total collisions in 2005. And there 
was one devastating accident in Minot, North Dakota, right next 
door, and it brought home to the people in our State, the 
devastating impact this can have on a community.
    And, I'm glad that we have new technology, and that that's 
going to help us, and I'm also glad that there has been 
research done on fatigue, and sleep deprivation. And I'd like 
to commend Senator Lautenberg, and Senator Smith for their 
work, for introducing the Railroad Safety Enhancement Act of 
2007.
    And so, I had some questions, just of you, Mr. Hamberger. I 
know that we heard at the rail safety hearing in May that the 
workforce is getting older, and retiring, and I wondered what 
you're doing to recruit new workers, and to ensure that the 
workers are trained adequately.
    Mr. Hamberger. Well, it's a major challenge, Senator, and 
thank you for the question. In fact, we're looking at the need 
for 80,000 employees over the next 5 years, just to replace the 
attrition. And so, each of our members is holding job fairs, 
working with colleges, working with the military, in 
particular. We're working with the Department of Labor to go 
out to their one-stop labor recruitment stops in urban areas.
    I will be blunt, and tell you that there are a couple of 
hurdles to overcome. Number one is that we are a zero-tolerance 
industry. We have drug testing on a random basis, and we have 
drug testing when there's an accident, and we have pre-
employment drug testing.
    I am told by our human resources people, when we have a job 
fair, that's the first thing they make clear to the pool of 
applicants. They then take a break, and when they reconvene, 
about 50 percent of the pool has walked out the door. And, so 
that is challenge number one.
    Challenge number two----
    Senator Klobuchar. Kind of like what's happening with the 
Tour de France.
    [Laughter.]
    Senator Klobuchar. Sorry.
    Mr. Hamberger. Point well taken.
    Challenge number two is that we are a 24/7 operation. We do 
have people, as Mr. Tolman was indicating, you know, working 
the midnight shift. In Northern Territories, in South Dakota, 
where it gets a little cold in February, and so it is sometimes 
difficult to recruit into that environment.
    Nonetheless, we seem to be hitting our targets. We have, in 
fact, increased employment in the last couple of years, and as 
I point out in my written testimony, we have very good training 
programs. I know that the bill calls for training programs. We 
think that, in fact, an engineer gets months of training, it 
costs between $50,000 and $70,000, and I would invite any of 
the members of the Committee, all of our Class 1 railroads have 
very up-to-date, very modern training facilities, and we'd love 
to have a field hearing, or have you come out and take a look 
at them.
    But, you have put your finger on a challenge for the 
industry going forward.
    Senator Klobuchar. Mr. Tolman, maybe you want to add to 
that? And could you also comment about, I know in your written 
testimony you talked about some of the workers still sleeping 
in ``camp cars'' and the concerns with that, if you'd like to 
add to that.
    Mr. Tolman. Sure. I'd just like to, first, I guess, address 
the question that you just asked Mr. Hamberger. And, first of 
all, I think drug testing in the industry has absolutely 
cleaned up, and over the many, many years with wonderful 
programs such as Operation Red Block where our peers work, and 
help each other, there's less than 1 percent of incidents 
testing positive in the operating employees in the industry.
    The railroad industry is a 24/7 business. And, 
unfortunately, it takes a commitment from both labor and 
management to try to, you know, make it a desirable place to 
work. And, this is what we're doing here--is try to figure out 
ways it would make--not only the--my understanding is when they 
do these interviews, they end up with, after 2 years, with less 
than 30 percent of the people they've hired. So, obviously, 
just from a business perspective, there's something wrong with 
the industry.
    The younger employees are more apt to look for time off 
with the family, and that's what, you know, the social system 
of today's society is about. And that--you need to find a way 
to get that. And I think this bill does one thing, a step in 
the right direction on that, and it's the 10-hour calling. And 
it allows you the opportunity to, number one, get the adequate 
rest, and it also allows you to, you know move, to prepare 
yourself for coming to work.
    As far as the camp car issue, it's absolutely ridiculous 
that we're even discussing this, as far as I'm concerned. When 
you look at the conditions, you actually--I guess it was 
measured in, comparing a, somebody put in prison versus a camp 
car--the prisoner would actually have more room to move around, 
never mind the quality of sleep of that individual, living and 
having to deal with the conditions in there. I know the House 
has the same version, I know the Senate--and thank God the 
Senate has the same. And hopefully, at the end of the day, 
through the leadership of the Senate and the House, that we 
eliminate those for now. And, it is only one railroad that 
currently has them, and that's a nice thing, too.
    So, thank you.
    Senator Klobuchar. OK.
    Mr. Hamberger. If I--thank you.
    Senator Klobuchar. Yes, you want to just quickly add to 
that?
    Mr. Hamberger. I would just say that one railroad, in fact, 
does rely on camp cars in remote locations, where there really 
are not other accommodations for their maintenance of way 
workers. And they are now modernizing their cars, converting 
them from 8-person to 4-person sleepers, putting in air 
conditioning, baths, desks and, in fact, they have about 44 of 
these cars on an emergency basis, they used them during 
Hurricane Katrina, there are Federal Railroad Administration 
guidelines governing that camp car use, and it really is a way 
to provide good accommodations in remote locations.
    So, hopefully as this updating program gets completed, it 
will be accepted, and--in fact, we hope--embraced and endorsed 
by the employees as well.
    Senator Klobuchar. Mr. Tolman, do you have anything to add?
    Mr. Tolman. I beg to differ, I don't think that's the way 
to go. Not only the quality of sleep--sleeping beside a 
railroad, on a railroad siding while a train goes by. I guess I 
would challenge Mr. Hamberger that he should go out in a camp 
car in a month, and then come back here and see if that's the 
way to go.
    Mr. Hamberger. You have to compare it to what the 
alternatives are out there.
    Senator Klobuchar. It sounds like a CODEL trip for us.
    [Laughter.]
    Senator Klobuchar. Perhaps this will be resolved in the 
legislation. So, thank you.
    Senator Lautenberg. Well, last week, we had two nights here 
in which--I'll speak for myself, I had less than 4 hours sleep 
each of those nights--and I hope there was no evidence of 
fatigue there, but I sure felt it, I can tell ya.
    Senator Thune, please.

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. Thank you, Mr. Chairman. A CODEL on some of 
the railroads in South Dakota would be a little bumpy--on some 
of that FRA-accepted track out there. You thought we had a hard 
time sleeping the other night, I think it'd be hard sleeping in 
those sleeper cars, too.
    But, I appreciate the opportunity to participate in today's 
Subcommittee hearing on legislative matters that could 
strengthen the role of the FRA when it comes to rail safety, 
and I have drawn some previous experience as State rail 
director in the State of South Dakota. Having a rail system 
that is both efficient and safe, is critical to our Nation's 
economy. There is no better way to haul agricultural 
commodities, to move freight and that sort of thing, than on 
the railroads. Our Nation has a tremendously vast rail network, 
and with the projected increases in real traffic that we expect 
in the coming years, I think it's going to be important that we 
be able to work together in the Senate to ensure that we assist 
the Department of Transportation as it works to make our rail 
system even safer than it is today.
    And I also think it's important as we evaluate legislative 
proposals, to also stress the significant improvements that the 
industry and regulators have made over the years when it comes 
to the reductions in train accidents, and with the improvements 
in overall safety, particularly regarding injuries and 
fatalities. And, while there's certainly a lot more that can be 
done, we should also, I think, not forget how far we've come in 
the last few years.
    So, I appreciate the testimony of our witnesses today, and 
welcome their suggestions as we go about the job of making our 
rails stronger and safer.
    And, I would like to just pose, I guess, one question of 
our witnesses. And I agree, obviously, that the improvements 
that are being proposed, as it relates to some of the things in 
your bill, Senator Lautenberg, that deal with hours-of-service, 
limbo time, staffing issues, and some of the workplace issues 
are all important. Can you tell the Committee the other steps 
that you believe our Nation's railroads could make to improve 
safety? In other words, what other things could the railroads 
be doing that would lead to safety improvements that perhaps 
are, maybe fall outside the parameters of this particular piece 
of legislation?
    Mr. Boardman. Senator, I think that we recently issued--and 
we can produce this and give it to you--the National Rail 
Safety Action Plan. We just recently updated it; it began on 
May 16, 2005. And, I think it ties into many of the elements of 
this particular bill, and all of the bills that are being 
discussed, on almost every area.
    But, if you look at it from the standpoint of safety 
improvement (and I know you're an old State rail guy), it's 
really about the track, and it's about what's under the track, 
and it's about the technology we use today, and how we apply 
that technology.
    But all of that technology (whether it is a technology that 
gets precursor data for us to reduce risk or whether it's a 
technology that improves human factors), I think, ties into 
this legislation in one form or another. Because, as we talk 
about the elements of this particular bill, we're talking about 
the critical pieces of the grade-crossing accidents, the 
trespass accidents, and understanding what we need to do for 
the future to improve those kinds of things.
    For example, on the trespass today, the newest task force 
in RSAC's Passenger Safety Working Group, today, is looking 
at--especially--the gap between a passenger train and the 
station platform, because of the different rolling equipment, 
and the different locations of where it is, but it needs to 
move quickly to do something to reduce the number of people--
pedestrians--that are being killed as they try to get to that 
train, by a second train. And we need a way of identifying 
that.
    So, I think--and I don't know if I've addressed your 
question quite the way you really want it--but what we'll 
provide to you is that update on that National Rail Safety 
Action Plan, which I think ties many of these things together.
    [The information referred to follows:]

       National Rail Safety Action Plan Progress Report 2005-2007
Federal Railroad Administration
United States Department of Transportation
                                                   May 2007
Introduction
    On May 16, 2005, the U.S. Department of Transportation (DOT) and 
the Federal Railroad Administration (FRA) launched an aggressive and 
proactive National Rail Safety Action Plan to address important safety 
issues by:

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

   Focusing FRA oversight and inspection resources more 
        precisely; and

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

    The Action Plan includes initiatives in several areas: reducing 
human factor-caused train accidents, addressing the serious problem of 
fatigue among railroad operating employees, improving track safety; 
enhancing hazardous materials safety and emergency preparedness, 
focusing FRA resources (inspections and enforcement) on areas of 
greatest safety concern and consequence, and further improving highway-
rail grade crossing safety.
    This report details the substantial progress made by FRA to 
successfully implement the various elements of the Action Plan during 
the past 2 years. It also highlights other projects and activities FRA 
is tackling, which while not specifically elements of the Action Plan, 
nonetheless will contribute to advancing safety on the Nation's rail 
network.
Achievements During the Past Year
    Below is a list of achievements in the implementation of the Action 
Plan since the first progress report was issued in June 2006.

August 2006                        Public meetings on safety at private
                                    highway-rail grade crossings begin
October 2006                       Proposed rule on human factor-caused
                                    train accidents published
November 2006                      Summary report on validation of
                                    fatigue measurement model issued
January 2007                       Research agreement signed by FRA and
                                    railroad and chemical industry
                                    leaders to strengthen rail hazmat
                                    tank car design standards
February 2007                      Data collection for ``Close Call''
                                    near accident project begins
April 2007                         Two new automated track inspection
                                    vehicles begin service



    In February 2007, FRA also submitted the ``Federal Railroad Safety 
Accountability and Improvement Act'', introduced in Congress as H.R. 
1516 and S. 918, to reauthorize the agency for 4 years and strengthen 
its safety program.
Anticipated Action Plan Accomplishments in 2007

   Publish final rule to reduce human factor-caused train 
        accidents

   Complete research to strengthen the structural integrity of 
        hazardous materials tank cars

   Issue final report on private highway-rail grade crossing 
        safety with findings and recommendations for further action
Causes of Train Accidents
    The causes of train accidents are generally grouped into five 
categories: human factors, track, equipment, signal and train control, 
and miscellaneous. Two categories of accidents--those caused by human 
factors and those caused by defective track--comprise more than 70 
percent of all reportable train accidents. Accordingly, both are the 
primary target areas for improving the overall train accident rate. In 
recent years, the most serious events involving train collisions or 
derailments resulting in release of hazardous materials, or harm to 
rail passengers, have been caused by human factor or track causes.


Fewer Train Accidents in 2006
    Preliminary statistics (as of February 2006) reveal that in 2006 
railroads had 366 fewer train accidents nationwide, or an 11.3 percent 
reduction from 2005. Specifically, the number of derailments declined 
7.3 percent and collisions between trains decreased by 27.1 percent. 
And, the train accident rate per one million train-miles is near a 10-
year low despite significant increases in the volume of train traffic.
    The data for 2006 also reveal that train accidents caused by human 
error--the leading cause of all train accidents--declined 19.0 percent. 
Train accidents caused by track issues decreased 4.4 percent, and those 
caused by equipment failure and signal problems fell by 7.6 percent and 
27.0 percent, respectively. In addition, last year the number of 
highway-rail grade crossing collisions fell by 4.7 percent. However, 
grade crossing fatalities increased by 2.2 percent. And, trespass 
fatalities, the number one cause of all rail-related deaths, increased 
by 13.6 percent.




Reducing Human Factor Accidents


ACTION ITEM:                       Issue Federal rule addressing top
                                    causes of human factor train
                                    accidents
STATUS:                            Proposed rule published in October
                                    2006
NEXT STEP:                         Final rule to be issued in 2007



    In October 2006, FRA published a proposed rule intended to reduce 
the number of human factor-caused train accidents, which have 
consistently constituted the largest single category of train 
accidents. FRA believes a Federal regulation prohibiting common human 
errors that lead to train accidents will provide heightened visibility 
and operational focus to reduce their frequency of occurrence. The 
final rule will be issued later this year.
    Analysis of train accident data has revealed that a small number of 
particular kinds of human errors account for an inordinate number of 
human factor-caused accidents. The leading cause is improperly lined 
track switches. Other top causes include shoving rail cars without a 
person on the front of the move to monitor conditions ahead, leaving 
cars in a position that obstructs (fouls) a track, and failure to 
secure a sufficient number of handbrakes.
    At present, few of these kinds of mistakes are prohibited by 
Federal regulations. Instead, most are addressed by each railroad's own 
operating rules, which subject employees who violate them to 
discipline, including dismissal. Currently, FRA regulations only 
require railroads to train their employees on these rules and to test 
them periodically on their compliance with those rules.
    The proposed rule seeks to establish greater accountability on the 
part of railroad management for the administration of railroad programs 
of operational tests and inspections, and greater accountability on the 
part of railroad supervisors and employees for compliance with those 
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 compliance with fundamental operating rules and providing FRA a more 
direct means of promoting compliance.
    The final rule is intended to supersede Emergency Order No. 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. The Emergency 
Order requires special handling, instruction and testing of railroad 
operating rules pertaining to hand-operated main track switches in non-
signaled territory, and is expected to remain in place until the final 
rule is issued and becomes effective.


ACTION ITEM:                       Establish ``Close Call'' pilot
                                    project to learn from incidents that
                                    could have caused a train accident
                                    but did not
STATUS:                            Begin pilot project data collection
                                    February 2007
NEXT STEP:                         Expand pilot project to other
                                    railroads in 2007



    In February 2007, FRA announced that employees at the Nation's 
largest rail yard in North Platte, Nebraska can now voluntarily and 
anonymously report ``close call'' incidents that could have resulted in 
an accident, but did not, without fear of sanction or penalty from 
their employer or the Federal Government as part of a new rail safety 
pilot project.
    FRA currently requires railroads to report a wide range of 
accidents and incidents that actually occur. This ``close call'' 
information will be analyzed to determine areas of potential risk and 
to develop solutions to prevent accidents in the future. The aviation 
industry has a similar program.
    The Confidential Close Call Reporting Pilot Project involves Union 
Pacific Railroad (UP), the Brotherhood of Locomotive Engineers and 
Trainmen (BLET) and the United Transportation Union (UTU). Each has 
ratified an agreement with the FRA to allow railroad employees to 
anonymously contact the U.S. Department of Transportation's Bureau of 
Transportation Statistics, to report on such potentially dangerous 
situations.
    Examples of ``close calls'' could be as minor as employees lifting 
objects that place them at risk for minor injuries, or more serious 
events, such as a train operating in non-signaled dark territory 
proceeding beyond its track authority, or a train crew member's failure 
to properly test an air brake before leaving a yard, which could lead 
to a runaway train.
    ``Close call'' reports will be taken for 5 years to permit 
researchers enough time to collect a sufficient number of incidents for 
thorough analysis. Importantly, a review team will evaluate the reports 
as they are received in order to make safety recommendations for those 
that require immediate attention.
    FRA plans to extend this pilot project to other rail yards, 
including BNSF Railway in Lincoln, NE and Canadian Pacific in Portage, 
WI, and is also currently in discussion with commuter railroads to 
launch another pilot location.
Addressing Fatigue


ACTION ITEM:                       Accelerate research on railroad crew
                                    work history to validate a fatigue
                                    model for possible use to improve
                                    crew scheduling
STATUS:                            Final report issued October 2006
NEXT STEP:                         FRA seeking authority to regulate
                                    railroad worker hours-of-service
                                    based on current scientific research
                                    February 2007



    In November 2006, FRA announced the release of a study which 
provides a strong scientific rationale for evaluating railroad employee 
work schedules to address worker 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. FRA knowledge of the industry's work patterns 
and the developing science of fatigue mitigation, combined with certain 
National Transportation Safety Board investigations indicating employee 
fatigue as a major factor of some train accidents, have persuaded FRA 
that fatigue plays a role in one out of every four human factor-caused 
accidents.
    The goal of the FRA 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. 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. 
FRA expects this information will aid the railroad industry and labor 
organizations in improving crew scheduling practices in order to reduce 
that risk. A similar approach is currently utilized by the Department 
of Defense.
    Under the study, researchers analyzed the 30-day work schedule 
histories of locomotive crews preceding approximately 1,400 train 
accidents and found a strong statistical correlation between the crew's 
estimated level of alertness and the likelihood that they would be 
involved in an accident caused by human factors. In fact, the 
relationship is so strong that the level of fatigue associated with 
some work schedules was found to be equivalent to being awake for 21 
hours following an 8-hour sleep period the previous night. At this 
level, train accidents consistent with fatigue, such as failing to stop 
for red signals, were more likely to occur.
    This research provides the basis for an important component of the 
Administration's rail safety reauthorization proposal submitted to 
Congress in February 2007 that would grant the FRA statutory authority 
to regulate railroad worker hours-of-service based upon the most 
current scientific knowledge available on fatigue management and 
mitigation.
Improving Track Safety


ACTION ITEM:                       Demonstrate vehicle-mounted photo
                                    imaging technology to detect cracks
                                    in joint bars that can lead to
                                    derailments
STATUS:                            Field testing began in October 2005
                                   Enhanced technology tested in 2006
NEXT STEP:                         Test additional enhancements to
                                    increase operating speeds and make
                                    the defect detection technology more
                                    robust in 2007



    Track has consistently been the second leading cause of train 
accidents accounting for about one-third of all train accidents from 
2001 to 2006. Broken joint bars, for example, are a leading cause, but 
the kinds of cracks in those bars that foreshadow a derailment-causing 
break are very hard to spot with the naked eye. Similarly, broken rails 
account for some of the most serious accidents, but the internal flaws 
that lead to many of those breaks can be detected only by specialized 
equipment.
    FRA is developing an automated high-resolution video joint bar 
inspection system that can be deployed on a hi-rail maintenance vehicle 
that will 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 visual 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 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.
    Additional enhancements were made to the system to further improve 
joint detection reliability and were tested at participating railroads 
during the spring of 2007. This year, FRA intends to make additional 
enhancements to increase the operating speed and implement a more 
rugged, simple, and robust defect detection system.


ACTION ITEM:                       Deploy two additional automated track
                                    geometry inspection vehicles
STATUS:                            T-19 and T-20 track geometry
                                    inspection vehicles in operation
                                    April 2007
NEXT STEP:                         Ongoing Implementation



    In late April 2007, FRA began operating its two newest automated 
track inspection vehicles equipped with state-of-the-art technology to 
prevent train derailments by detecting subtle track flaws that are 
difficult to identify by regular means.
    The addition of the new equipment increases the FRA fleet of 
automated inspection vehicles to five, and when fully integrated into 
the Federal inspection program, will allow this agency to inspect 
nearly 100,000 track-miles each year, tripling the current 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 improve its ability to follow 
up more quickly on routes where safety performance by a railroad is 
substandard.
    The new vehicles, known as the T-19 and the T-20, use a variety of 
technology to measure track geometry flaws such as whether the two 
rails are level, if the width between the rails is acceptable, and if 
the shape of each rail meets Federal standards so to avoid derailments. 
The measurements are recorded in real-time and at operating speed. 
Problem areas are identified by global positioning system location and 
shared immediately with the railroad so appropriate corrective actions 
can be taken in a timely manner.
    In May 2005, FRA added the T-18 to its fleet of automated track 
inspection vehicles that measures for weaknesses in the track structure 
such as bad crossties or poor connections between the rail and crosstie 
that could cause the rails to dangerously widen.
Improving Hazardous Materials Safety and Emergency Response 
        Capability


ACTION ITEM:                       Identify technology to improve safety
                                    in dark (non-signaled) track
                                    territory
STATUS:                            Switch Point Monitoring System pilot
                                    project November 2005
NEXT STEP:                         Use success of pilot project to
                                    encourage other railroads to install
                                    switch position monitoring
                                    technology in other dark track
                                    territory



    In November 2005, FRA partnered with BNSF Railway in a $1 million 
Switch Point Monitoring System pilot project. The main objective of the 
project was to develop a low-cost system that electronically monitors, 
detects, and reports a misaligned switch on the mainline track located 
in dark, or non-signaled, track territory.
    The project involved 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, monitor the devices to identify 
when the hand-operated switches are set in the wrong position. If a 
switch is misaligned, the dispatcher directs a train to stop until 
railroad crews in the field check the switch and confirm it is safe to 
proceed. No unsafe failures of the system have been reported to date.
    As a result of the successful pilot project, BNSF has now developed 
technology so dispatchers can remotely control the operation of the 
switch in addition to simply monitoring it. And, the railroad has 
installed the switch monitoring technology on at least one other of its 
dark territory lines and has plans to expand it use elsewhere on its 
rail network.


ACTION ITEM:                       Ensure emergency responders have
                                    access to key information about
                                    hazardous materials transported by
                                    rail
STATUS:                            Rail hazmat lists available to first
                                    responders March 2005
                                   Rail hazmat accident pilot project
                                    with major railroad July 2005
NEXT STEP:                         Monitor new rail hazmat pilot project
                                    with short line and regional
                                    railroads December 2006



    Emergency responders have access to a wide variety of information 
regarding hazardous materials transport by rail. The Association of 
American Railroads (AAR) offers hazardous materials incident response 
training and the American Chemistry Council has a program that 
familiarizes local emergency responders with railroad equipment and 
product characteristics. In addition, the U.S. DOT Pipeline and 
Hazardous Materials Safety Administration publishes the Emergency 
Response Guidebook and distributes Federal grants to states to train 
emergency personnel.
    In March 2005, with FRA encouragement, the AAR amended its 
Recommended Operating Practices for Transportation of Hazardous 
Materials (Circular No. OT-55-G) to expressly provide that local 
emergency responders, upon written request, will be provided with a 
ranked listing of the top 25 hazardous materials transported by rail 
through their community. This is an important step to allow emergency 
responders to plan, and better focus their training, for the type of 
rail-related hazardous materials incident that they would be more 
likely to encounter.
    In July 2005, again with FRA encouragement, CSX Transportation and 
CHEMTREC (the chemical industry's 24-hour resource center for emergency 
responders) entered into an agreement to conduct a pilot project 
designed so that if an actual hazardous materials rail accident or 
incident occurs, CHEMTREC will have immediate access to CSX computer 
files regarding that specific train, including the type of hazardous 
materials being carried and their exact position within the train. 
During the 6-month pilot project there was minimal opportunity to 
effectively test the program so all parties agreed to continue the 
arrangement for an additional 18-month period.
    In December 2006, another pilot project began 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, and it has the potential to more rapidly provide 
information about hazmat shipments on short line and regional railroads 
to CHEMTREC to improve information availability and reduce delays in 
emergency response.


ACTION ITEM:                       Accelerate research into hazardous
                                    materials rail tank car structural
                                    integrity
STATUS:                            Funding added to complete research in
                                    2007 rather than 2008
                                   Tank car research agreement with rail
                                    and chemical industry January 2007
NEXT STEP:                         Research to be completed in Fall 2007



    In January 2007, FRA executed a formal Memorandum of Cooperation 
(MOC) with rail and chemical industry leaders to share research data 
and resources to aid in developing new Federal design standards for 
stronger and safer hazardous materials tank cars in 2008. The goal is 
to move beyond incremental design changes and apply the latest research 
and advanced technology to provide increased safety for rail shipments 
posing the greatest potential safety risk.
    The MOC with Dow Chemical Company, Union Pacific Railroad and the 
Union Tank Car manufacturing company provides for extensive information 
sharing and cooperation between ongoing FRA and industry research 
programs to improve the safety of rail shipments of hazardous 
commodities such as toxic inhalation hazards and high-risk gases and 
liquids.
    The focus of FRA is to strengthen the structural integrity of the 
tank car including evaluating the type of material and thickness of the 
outer shell and the type and design of the insulation material located 
between the outer shell and the inner tank that contains the hazardous 
material. This is intended to reduce the probability that a collision, 
such as a side impact, will result in release of the hazardous 
commodity.
    In addition, FRA is closely evaluating technology such as push-back 
couplers, energy absorbers, and anti-climbing devices designed to 
prevent a derailment of the tank car by keeping it upright and on the 
tracks after an accident.
    Also, in collaboration with the railroad industry through the 
Association of American Railroads Tank Car Committee, FRA is conducting 
research involving three major activities: (1) modeling of dynamic 
forces acting on hazmat tank cars in accidents and assessing the 
subsequent damage, (2) material testing to determine fracture behavior 
of tank car steels, and (3) risk ranking to prioritize the tank cars 
that are perceived to be most vulnerable to catastrophic failure. 
Originally scheduled to be finished in 2008, FRA has provided an 
additional $400,000 to move the target completion date for this 
research forward to August 2007.
    The first project, modeling of dynamic forces in train accidents, 
is ongoing and will assess items including train makeup, train speed, 
configuration of rail car pileup, the effect of having different types 
of impacting objects (i.e., couplers and wheels) strike different parts 
of various tank car models, and the effect of various levels of 
pressurization, among other elements. It is expected to be completed 
August 2007.
    The second project, material testing for dynamic fracture 
toughness, is testing the amount of stress required to propagate an 
existing flaw on the tank car steel and evaluating the ability of the 
steel to resist fracture. Researchers at the Southwest Research 
Institute laboratories in San Antonio, Texas are testing 34 steel 
samples from tank cars segregated by decades of manufacture (e.g., 
1960s, 1970s, and 1980s). This work is expected to be completed in July 
2007.
    The third project, ranking the vulnerability of hazardous materials 
tank cars to catastrophic failure, represents the end purpose of this 
research. Risk is a complex concept, and therefore the methods used to 
rank the factors that affect risk vary in complexity. Preliminary low-
level analyses are ongoing. Higher-level analysis can be conducted 
after the research on dynamic forces and testing for fracture toughness 
has been completed. The final hazardous materials tank car risk 
analysis is to be completed by September 2007.
    And, since May 2006, FRA has held three public meetings in 
cooperation with the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) to comprehensively review design and operational 
factors that affect hazmat rail tank car safety. The two agencies will 
utilize a risk management approach to identify ways to enhance the safe 
transportation of hazardous materials including, tank car design, 
manufacture, and requalifications to keep a tank car in service; 
operational issues such as human factors, track conditions and 
maintenance, wayside hazard detectors, and signals and train control 
systems; and emergency response.
    In addition, in December 2006, PHMSA issued a proposed rule that 
would require railroads to perform a safety and security risk analysis 
to determine the most appropriate route for shipping certain high-risk 
hazardous materials. Under the proposed rule, rail carriers would be 
required to compile annual data clearly identifying the total number 
and type of hazardous materials shipments transported over each route 
and use the information to select the route that provides the highest 
possible degree of safety and security. The proposed rule would require 
shippers to develop consistent plans for safely and securely storing 
hazardous materials while en route, and ensure that within a specified 
time period a rail carrier informs the final recipient that it has 
delivered a hazardous materials rail car.
    Further, in September 2006, FRA began a project to test sample tank 
car panels with various coatings to determine their ability to prevent 
penetration from small arms fire, as well as their ability to self-seal 
and, thereby, mitigate the severity of any incident. FRA developed the 
project in coordination with the AAR and the U.S. Department of 
Homeland Security, which came up with the idea of applying to tank cars 
a protective coating like that used to enhance the armor protection of 
military vehicles in Iraq.
Strengthening the FRA Compliance Program


ACTION ITEM:                       Make better use of data to direct FRA
                                    safety inspectors and other
                                    resources to where problems are
                                    likely to arise
STATUS:                            New National Inspection Plan fully
                                    implemented March 2006
                                   Proposal to increase civil penalty
                                    guideline amounts December 2006
NEXT STEP:                         Ongoing implementation and refinement
                                    of NIP process



    The National Inspection Plan (NIP) is a strategic inspection 
resource allocation program that uses predictive indicators to assist 
FRA in conducting inspection and enforcement activities within a given 
geography or on a particular railroad. In essence, it makes use of 
existing inspection and accident data in such a way to identify 
potential safety ``hot spots'' so they can be corrected before a 
serious accident occurs.
    In April 2005, the FRA safety disciplines of Operating Practices 
(i.e., Human Factors), Track, and the Motive Power & Equipment began 
operating under the NIP since combined, these factors account for over 
80 percent of all train accidents. The two other safety disciplines of 
Signal & Train Control and Hazardous Materials started in March 2006. A 
reduction in both the number of accidents and the accident rate is 
expected once the NIP has had time to take its full effect and FRA 
refines its application to real-world experience.
    The first year under the NIP was a time of learning by FRA regional 
offices and field inspectors on how to understand and use the 
information. During the second year, there has been a noticeable 
increase in sophistication and initiative by the regions and they are 
making adjustments to the NIP where needed and managing resources in a 
proactive manner to meet the targets in the plan. There is an increased 
willingness to break with past inspections patterns and to focus more 
effort on railroads with the most safety problems. And, FRA has 
improved the planning phase of the NIP by implementing a mid-year 
review process.
    Regarding enforcement efforts, FRA announced in December 2006 that 
the civil penalty guideline amounts assessed against railroads for 
violating Federal rail safety regulations would at least double for 
most violations. FRA evaluated each of the more than 2,000 regulations 
using a five-point severity scale. The measure takes into consideration 
the likelihood that a rail accident or graver consequences will occur 
as a result of failing to comply with a particular section of the 
regulations. The more severe the potential outcome of violating a rule, 
the higher the fine. The agency's new civil penalty guidelines are to 
become effective later this year.
Fostering Further Improvements in Highway-Rail Grade-Crossing Safety


ACTION ITEM:                       Build partnerships with state/local
                                    agencies and emphasize railroad
                                    responsibilities concerning safety
                                    at highway-rail grade crossings
STATUS:                            Safety advisory issued May 2005
                                   Public meetings on private grade
                                    crossings safety begin August 2006
NEXT STEP:                         Final public meeting on private grade
                                    crossing safety July 2007



    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 over time. However, the 
growth in rail and motor vehicle traffic continues to present 
challenges.
    In August 2006, FRA held the first in a series of public meetings 
across the country (MN, NC, LA, and CA) to foster a national discussion 
on improving safety at the Nation's largely unregulated private 
highway-rail grade crossings. Each year, about 400 accidents, and from 
30 to 40 fatalities, occur at the over 94,000 private crossings used by 
both freight and passenger trains.
    Private crossings are owned by private property owners primarily to 
allow roadway access over railroad tracks to residential, commercial, 
or agricultural areas not meant for general public use. The FRA is 
seeking comments on topics such as determining when a private crossing 
has a public purpose and whether the State or Federal Government should 
assume a greater role in setting safety standards.
    Establishing responsibility for safety at private crossings is one 
of the primary goals of the U.S. Secretary of Transportation's Highway-
Rail Grade Crossing Safety and Trespass Prevention Action Plan issued 
in 2004. A final public meeting is scheduled for July 2007 in New York.
    In May 2005, FRA issued Safety Advisory 2005-03 describing the 
roles of the Federal and state governments and of the railroads in 
grade crossing safety. It also specifically reminds railroads of their 
responsibilities to properly: report any accident involving grade 
crossing signal failure; maintain records relating to credible reports 
of grade crossing warning system malfunctions; preserve the data from 
all locomotive mounted recording devices following grade crossing 
collisions; and cooperate fully with local law enforcement authorities 
during their investigations of such accidents. FRA also offers 
assistance to local law enforcement authorities in the investigation of 
highway-rail grade crossing collisions where information or expertise 
within FRA control is required to complete the investigation.


ACTION ITEM:                       Assist Louisiana create Highway-Rail
                                    Grade Crossing Safety Action Plan
STATUS:                            Louisiana approved action plan April
                                    2006
NEXT STEP:                         Work with other states to develop
                                    grade crossing safety action plans



    In March 2005, FRA began working with the State of Louisiana in 
developing its own action plan for highway-rail crossing safety. 
Louisiana has the distinction of consistently being among the top five 
states in the Nation with the highest number of grade crossing 
collisions and fatalities. The action plan focuses on reducing vehicle-
train collisions at grade crossings where multiple collisions have 
occurred. Louisiana approved its action plan in April 2006.
    In June 2006, in part as a result of efforts to create this action 
plan, the Louisiana Department of Transportation and Development 
announced an agreement with Kansas City Southern Railway to make safety 
improvements at 300 public grade crossings. Over a 5-year period, more 
than $16 million will be invested to upgrade warning devices, replace 
cross buck signage, and close redundant crossings.
    FRA is now working with Texas to develop a similar, State-specific 
action plan, and encourages other states with high numbers of grade 
crossing accidents and fatalities to do the same.
Other FRA Initiatives to Improve Rail Safety
    During the past year, FRA has undertaken several initiatives to 
improve rail safety above and beyond the specific elements of the 
Action Plan. These other activities include advancing the development 
and deployment of safety technology such as Positive Train Control 
(PTC) and Electronically Controlled Pneumatic (ECP) brake systems, 
enhancing passenger rail safety, and submitting to Congress a 
comprehensive bill that seeks to reauthorize FRA for 4 years and 
strengthen the Federal rail safety program.
Positive Train Control (PTC)
    In January 2007, FRA announced approval of the first PTC system 
intended for general use by the freight railroads capable of 
automatically controlling train speed and movements to prevent certain 
accidents, including train collisions. This is a major achievement that 
marks the beginning of a new era of rail safety.
    FRA approved the BNSF Railway's Product Safety Plan for its 
Electronic Train Management System (ETMS), an overlay technology that 
augments and supplements existing train control methods. ETMS employs 
both digital communications and a global positioning system to monitor 
train location and speed within track authority limits. The ETMS system 
includes an in-cab electronic display screen that will first warn of a 
problem and then automatically engage the train's brake system if a 
locomotive engineer fails to act in accordance with operating 
instructions.
    The FRA action allows BNSF to implement ETMS on 35 specific freight 
lines in 17 states, and requires appropriate employee training before 
it can be initiated. It is expected that the rail industry will 
increasingly embrace and adopt PTC technology as other railroads--among 
them, Union Pacific, Norfolk Southern, and CSX Transportation--are each 
making significant strides to develop PTC systems.
    In addition to its safety benefits, PTC also can support rail 
operations by increasing the capacity of high-density rail lines, 
improving overall efficiency.
    In 2005, FRA revised Federal signal and train control regulations 
to facilitate and enable development and deployment of PTC technology.
Electronically Controlled Pneumatic (ECP) Brakes
    In August 2006, FRA released a report on the business benefits of 
Electronically Controlled Pneumatic (ECP) brake systems that have the 
capability to significantly improve train control, reduce derailments, 
and shorten stopping distances. ECP brakes are to trains what anti-lock 
brakes are to automobiles--they provide better control.
    ECP brakes apply uniformly and virtually instantaneously on every 
rail car throughout a train and not sequentially from one car to the 
next as is done with conventional air brake systems. The full train 
brake application, and an ability to gradually apply and release the 
brakes, provides for vastly improved train control and enhances safety. 
FRA believes ECP brake systems are the most significant development in 
railroad brake technology since the 1870s.
    ECP brake technology can help avert train derailments caused by 
sudden emergency brake applications, prevent runaway trains caused by 
loss of brake air pressure, and shorten train stopping distances up to 
60 percent under certain circumstances. ECP brake systems also are 
capable of performing continual electronic self-diagnostic `health 
checks' of the brakes to identify maintenance needs.
    At the time the benefit report was issued, FRA announced its 
intention to propose revisions to the Federal rail safety regulations 
in 2007 to facilitate use of ECP brakes. As FRA continues to draft the 
proposed rule changes, the agency has encouraged railroads to submit 
their own plans to install ECP brakes on a limited basis. In March 
2007, FRA approved a joint request by BNSF Railway and Norfolk Southern 
Railway to install ECP brakes on trains to demonstrate the safety and 
efficacy of the technology in revenue service. With the approval, 
trains equipped with ECP brakes will be able to safely travel up to 
3,500 miles without stopping to undergo certain routine brake 
inspections, more than double the distance currently allowed by Federal 
regulations. It is expected that the railroads will use ECP brakes on 
container-only trains from West Coast ports to Chicago and on trains 
carrying coal from the Powder River Basin fields in Wyoming to southern 
and eastern power plants.
    FRA placed several conditions on the approval, including 
requirements that the railroads clearly define a process for handling 
brake problems discovered en route; ensure that ECP brake inspections 
be performed by qualified individuals; and provide appropriate training 
to crew members. Proper safeguards will be in place and will permit FRA 
to gather extensive data that could be used in developing its proposed 
rulemaking.
    In addition, ECP brakes support the U.S. Department of 
Transportation's National Strategy to Reduce Congestion on America's 
Transportation Network. Better brakes mean longer trains can move more 
freight faster and safer to help reduce congestion on America's rail 
system.
Passenger Rail Safety Initiatives
    While the Action Plan focuses on improving the safety of freight 
railroad operations, FRA has also been making important progress on 
passenger rail safety during the past 2 years.
    In August 2006, FRA published proposed new passenger rail safety 
standards to improve evacuation of passengers from trains, provide 
additional ways for rescuers to access the passenger car in case of an 
emergency, and enhance onboard emergency communication systems. FRA is 
preparing the final rule, which is expected to be published in 2007.
    In addition, FRA is currently developing a proposed rule focusing 
on passenger car emergency signage, low-location exit path marking, and 
emergency lighting. FRA is also preparing a proposed rule 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 
for front-end collision posts and corner posts for this equipment.
    In February 2007, FRA held the first meeting of its Railroad Safety 
Advisory Committee Task Force to review passenger safety at stations 
with high-level platforms where there are gaps between passenger car 
doorways and the platform. FRA has made this issue a priority. The Task 
Force will also address safety concerns associated with other matters 
directly affecting passenger safety on or around station platforms, 
such as express trains through stations, and make any necessary 
recommendations to FRA for regulatory action.
    In May 2006, FRA unveiled the Passenger Rail Vehicle Emergency 
Evacuation Simulator, or ``Rollover Rig,'' which can rotate a full-
sized commuter rail car up to 180 degrees to simulate passenger train 
derailment scenarios. It provides researchers the ability to test new 
passenger rail evacuation strategies and safety components such as 
emergency lighting, doors, and windows and gives first responders a 
unique training tool.
    And, in March 2006, FRA successfully conducted the final in a 
series of full-scale passenger train collisions at its testing facility 
in Pueblo, Colorado, to test new Crash Energy Management technology. 
The passenger train was equipped with crush zones which absorb the 
force of a crash to better protect passenger seating areas and 
operators' spaces. The crush zones have stronger end frames that act as 
bumpers to distribute crash forces throughout an entire train so 
passengers feel less of the impact. Other devices tested include newly 
designed couplers, which join two cars together and are built to 
retract and absorb energy to keep trains upright on the tracks during a 
crash. New passenger seats and chairs designed with special padding and 
crushable edges also were tested.
Proposed FRA Rail Safety Legislation
    In February 2007, FRA submitted to Congress the ``Federal Rail 
Safety Accountability and Improvement Act'' (H.R. 1516 and S. 918) to 
reauthorize the agency for 4 years and to strengthen its safety 
program. The proposed bill's major provisions include: giving FRA 
authority to regulate railroad worker hours-of-service; providing 
greater emphasis by FRA and railroads to establish risk reduction 
programs; and improving highway-rail grade crossing safety.
    A major challenge is to ensure that train crewmembers have adequate 
opportunity to rest, are free of disorders that can disrupt sleep, and 
are fully engaged in maintaining alertness. The current statutory 
provisions--first enacted in 1907--that govern the hours-of-service of 
railroad train crews, dispatchers, and signal maintainers are 
antiquated and inadequate to address present realities. The FRA 
proposal would replace railroad hours-of-service laws with 
comprehensive, scientifically-based regulations and make use of a 
century worth of learning on sleep-wake cycles and fatigue-induced 
performance.
    Under the proposal, the maximum on-duty or minimum off-duty hours 
would be established by FRA, much like hours-of-service standards are 
set for airline pilots by the Federal Aviation Administration and for 
truck drivers by the Federal Motor Carrier Safety Administration. If 
given the authority, the FRA Railroad Safety Advisory Committee, made 
up of railroad management, labor representatives and other key 
stakeholders, will review the issue and develop recommendations on new 
hours-of-service limits based on current, sound science before any 
changes are made.
    To achieve additional safety improvements, the FRA proposal also 
will supplement traditional safety efforts with the establishment of 
risk reduction programs. FRA will place increased emphasis on 
developing methods to systematically evaluate safety risks in order to 
hold railroads more accountable for improving the safety of their own 
operations, including risk management strategies and implementing plans 
to eliminate or minimize the opportunity for workers to make errors 
which can result in accidents.
    Other provisions in the FRA proposal include requiring states and 
railroads to update the National Highway-Rail Grade Crossing Inventory 
on a regular basis to ensure current information is available for 
hazard analysis in determining where Federal highway safety improvement 
funding is directed. In addition, the bill seeks to encourage the 
creation and deployment of new, cost-effective technology at the 
Nation's approximately 80,000 public highway-rail grade crossings that 
still lack active warning devices.
    Furthermore, the proposed legislation would expand the authority of 
the FRA to disqualify any individual as unfit for safety-sensitive 
service for violation of Federal regulations related to transporting 
hazardous materials, among other items.

    Mr. Hamberger. I think a lot of it does devolve to 
technology, the technology that we're testing and trying to 
develop out of Pueblo with rail money, as well as Federal 
Railroad Administration money. But when you take a look at the 
biggest problem, the biggest safety issue for railroads, is 
grade-crossing accidents. And, I think, that's where we have to 
focus our effort. Senator Carper, you mentioned it, the GAO 
report, I believe the number is 93 percent of all of those 
accidents are because of driver bad judgment. And I would love 
to see some sort of major commitment in the next surface 
transportation bill, that would try to have the national 
highway system become grade-crossing free. The only really safe 
grade crossing is a closed grade crossing.
    Now, that's a major goal. But it would be a worthy goal. 
And, as we work our way toward that, the new technologies that 
are out there, the quad gates, or the mediums that Mr. Solow 
referred to, that are being implemented in Southern 
California--we'd really like to see a lot--a major effort--in 
grade-crossing safety. And I'm not sure, frankly, Senator 
Carper, that the states agree that that is as much of a 
priority as I see it. I do know that the former head of NHTSA 
testified during the last highway bill that he did not want the 
Section 130 Grade Crossing Program specifically funded, he 
wanted a block grant, because he thought that maybe there were 
other higher priority safety programs than grade crossing. But, 
from our vantage point, I believe that that's where we could 
spend a great deal of time and resources.
    Senator Thune. How many of the accidents occur at night 
versus day? Do you know what that percentage is?
    Mr. Hamberger. I do not have that.
    Mr. Boardman. I don't have it off the top of my head. I 
don't know if we keep the data exactly that way, but we'll take 
a look.
    [The information previously referred to follows:]

    Please see the following charts, which show the agency's highway-
rail crossing accident statistics, based on railroads' required reports 
to FRA on Form FRA F 6180.57, for the more than 7 years from 2000 
through June of 2007:

                                       All Highway-Rail Crossing Incidents
----------------------------------------------------------------------------------------------------------------
                                                   Total         Dawn          Day         Dusk         Dark
                                             -------------------------------------------------------------------
                                                Nbr       %    Nbr   %     Nbr      %    Nbr   %     Nbr     %
----------------------------------------------------------------------------------------------------------------
2000                                            3,502    15.1   97  2.8    2,209   63.1  112  3.2   1,084   31.0
2001                                            3,237    14.0   74  2.3    2,083   64.3   91  2.8     989   30.6
2002                                            3,077    13.3   63  2.0    1,973   64.1   98  3.2     943   30.6
2003                                            2,977    12.9   70  2.4    1,902   63.9  119  4.0     886   29.8
2004                                            3,077    13.3   64  2.1    1,909   62.0  107  3.5     997   32.4
2005                                            3,053    13.2   79  2.6    1,908   62.5   93  3.0     973   31.9
2006                                            2,923    12.6   72  2.5    1,837   62.8   75  2.6     939   32.1
2007                                            1,311     5.7   26  2.0      812   61.9   44  3.4     429   32.7
----------------------------------------------------------------------------------------------------------------
Total                                          23,157   100.0  545  2.4   14,633   63.2  739  3.2   7,240   31.3
----------------------------------------------------------------------------------------------------------------


                   All Highway-Rail Crossing Incidents
------------------------------------------------------------------------
                  Total        Dawn/Dusk         Day            Dark
            ------------------------------------------------------------
               Nbr       %      Nbr    %     Nbr      %      Nbr     %
------------------------------------------------------------------------
2000           3,502    15.1     209  6.0    2,209   63.1   1,084   31.0
2001           3,237    14.0     165  5.1    2,083   64.3     989   30.6
2002           3,077    13.3     161  5.2    1,973   64.1     943   30.6
2003           2,977    12.9     189  6.3    1,902   63.9     886   29.8
2004           3,077    13.3     171  5.6    1,909   62.0     997   32.4
2005           3,053    13.2     172  5.6    1,908   62.5     973   31.9
2006           2,923    12.6     147  5.0    1,837   62.8     939   32.1
2007           1,311     5.7      70  5.3      812   61.9     429   32.7
------------------------------------------------------------------------
Total         23,157   100.0   1,284  5.5   14,633   63.2   7,240   31.3
------------------------------------------------------------------------

    Note that the figures for 2007 are for only January through June 
and very preliminary. A copy of the FRA reporting form is also provided 
for the record; see item 22 ``Visibility,'' which is highlighted. The 
first chart breaks down the more than 23,000 crossing accidents 
reported to FRA into four groups, according to whether the accident 
occurred at dawn, in daytime (``day''), at dusk, or at nighttime 
(``dark''). The second chart breaks down the accidents into three 
groups, combining accidents at dawn with accidents at dusk, because 
dawn and dusk are both periods of low light. As you can see from both 
charts, the broken-down percentages are fairly constant across the 
multiple-year time period: about 63 percent of the crossing accidents 
happen during daylight hours; 31 percent, during periods of darkness; 
and about 6 percent, during the low-light periods of dawn and dusk.
                               Attachment





    Mr. Tolman. Senator, I applaud you for that question, 
because I'm sitting here, and there are about a million 
different ideas popping into my head.
    But I sincerely think that, you know, if you look at the 
history of the railroad industry, it's been one of the oldest 
around, oldest businesses around. And for years when I first 
hired out in the railroad in, you know, 1971, it was a 
wonderful place to work, and you have a camaraderie between 
management and labor. And everybody worked together for the 
goal to move a commodity from one end to another.
    And over the years, that's all changed. And it changed for 
a variety of reasons, and there's nothing that you can pinpoint 
on it. However, that needs to swing back the other way. It 
needs to--management and labor need to work cooperatively 
together, and thoughtfully together, and you know, in Mr. 
Boardman's testimony, he says that we're talking about the 
fatigue abatement issues, and he says in his, something to the 
statement that, you know, they've had an opportunity to work on 
this issue for the last 12, 13 years, and none of us have done 
that. Why haven't we done it? Because there's not a commitment. 
You know why we have a commitment? And you know why we're 
talking about this today? Because Congress has stepped up to 
the plate and said, ``Something needs to be done.'' And thank 
God it did, you have. Because it's time to do something about 
safety.
    It's not only a culture change, I mean, we're talking 
about, you know, issues of--grade-crossing issues. It's not 
only the, a thousand deaths or accidents or incidents which 
happen each year--almost a thousand, it's a nine hundred and 
some-odd number. But, what do we do about the locomotive 
engineer and train crew that's involved in that accident? We're 
not discussing this. This should be part of this legislation.
    What happens, some railroads you have a critical incidents 
stress debriefing programs that help the engineer and the 
conductor, and any other crew members that has to deal with the 
trauma involved there. A lot of our engineers and train crews 
are dealing with PTSD, Post Traumatic Stress Disorder, brought 
on, you know, it goes back to the Vietnam War, that's when it 
was first, you know, brought on.
    Senator Carper. We need to be fair.
    Mr. Tolman. Absolutely. Thank you.
    Senator Lautenberg. We have a vote that's started here. I 
want to thank Senator Thune. I want to ask one question to Mr. 
Boardman and Mr. Hamberger--what's, what's going to be done by 
the Administration to achieve interoperability for Positive 
Train Control systems?
    And, for Mr. Hamberger, what steps, if any, is the industry 
going to do to develop it? If you can, in fairly short form, 
please.
    Mr. Boardman. Well, I think we've made progress, Senator, 
with BNSF and the ETMS system that they believe works as a 
business model. We're going to the second element of that--it 
was approved in their Product Safety Plan in January of this 
year, and the requirement here is that it has to be 
interoperable with the other railroads. We see CSX, we see 
Norfolk Southern, we see UP, doing just that. So, we believe 
that's going to happen.
    Ed?
    Mr. Hamberger. Mr. Chairman, our technical people are 
working very closely together, making sure that as these 
systems come online, they are interoperable, there are some 
technical challenges, that is one of the reasons I'm not sure 
we're comfortable with a specific deadline in the legislation, 
but we are committed to making sure that happens.
    I would just ask you to take a look at my written 
testimony, where I do point out that one of the challenges is 
having enough spectrum to run these systems, and make sure that 
that spectrum goes throughout the entire ribbon of the network. 
But we're working on that.
    And, finally, I'd ask your consent to put into the record a 
compendium of fatigue management efforts that the industry has 
been undertaking, we have not been sitting on our hands for the 
last 10 years with the employees.
    Senator Lautenberg. Without objection.
    [The information referred to is retained in Committee 
files.]
    Senator Lautenberg. And to say thanks to all of you, if 
Senator Carper has another question, please feel free to ask.
    Just to close, by saying that we're expecting so much from 
the railroad industry, from the freight industry, in the 
future. That, when I hear that 80,000 people are sought for 
jobs over the next several years, that's incredible. But, we're 
going to need your help to keep this country running.
    I conclude my remarks, Senator Carper, you're in charge.
    Senator Carper. Thanks very much.
    I'd like to call up Senate bill number----
    [Laughter.]
    Senator Carper. Just kidding.
    I do have a statement I'd like to offer for the record, if 
I could.
    [The prepared statement of Senator Carper follows:]

Prepared Statement of Hon. Thomas R. Carper, U.S. Senator from Delaware
    Thank you, Mr. Chairman, for holding this hearing on this very 
important issue.
    I have watched over the last decade with great pleasure as people, 
businesses, and policymakers have turned their attention back to rail 
as an affordable and efficient transportation alternative.
    As we try to reduce highway congestion and address air pollution 
that threatens public health and the environment, rail has arisen as an 
effective way to address our transportation needs.
    However, increased rail traffic has resulted in increased 
accidents, some of which have received a great deal of attention in the 
press.
    In Delaware, there has been a fair amount of attention given to 
rail safety issues by our papers in recent months. And the concern that 
more rail service brings more accidents has generated some opposition 
to additional investment in rail. This is something none of us wants to 
see.
    Addressing these concerns early is important both for public safety 
and to ensure that we continue to invest in this very important part of 
our national transportation system.

    Senator Carper. And also I had one last quick question. 
This is more of a local question for Delaware. And I have only 
one major statewide newspaper in our small State, and they ran 
a series of articles not long ago about rail safety. And I just 
want to touch on that, if I may, and then we'll run and vote.
    One of the concerns that I have heard expressed by 
residents of my State--after the series of articles ran, has to 
do with the parking of rail cars containing hazardous materials 
near residential communities.
    I guess my question is, what are railroads doing about that 
now? What more could be done? And, what if anything, should our 
government do? Whether it's Federal, State and/or local 
governments do--to address, or reduce the concerns that 
surround that kind of practice?
    Mr. Hamberger. Senator, the Transportation Security 
Administration has promulgated a regulation, and we have also 
taken--while that is pending--voluntary action to reduce the 
amount of time that a loaded hazardous material tank car sits 
in a yard, by 25 percent each year. And that we have also 
committed to making sure that those tank cars will be attended, 
that is to say, not just sitting out there, and that they will 
be placed, within the rail yard, in as safe a place as 
possible. That is to say, if there is one end of the rail yard 
near a hospital, at the other end of the rail yard a forest, 
it's going to be placed up there by the forest, not by the 
hospital.
    And, of course, as you know, we are committed to moving 
hazardous materials as safely as possible, and we do have a 
pretty good record of doing that, 99.99 percent. But the TSA 
does have about 24 or 25 action items that we are cooperating 
with them on.
    Senator Carper. All right. Thank you.
    Anyone else like to respond to that question? No?
    Well, all right, well, fair enough. Thank you very, very 
much.
    Senator Lautenberg. If there is any information that any of 
you want to submit, we'd be pleased to receive it, and we thank 
you all for being excellent witnesses. This has been a very 
good hearing, in my judgment, thank you.
    [Whereupon, at 3:40 p.m., the hearing was adjourned.]
                            A P P E N D I X

   Response to Written Questions Submitted by Hon. John F. Kerry to 
                        Hon. Joseph H. Boardman
    Question 1. In your written testimony you admonish Congress against 
setting specific hours-of-service reforms in statute even with 
exceptions which this legislation makes. Instead, you recommend that 
Congress grant you the authority to issue ``flexible regulations based 
on a modern, scientific understanding of fatigue.'' What scientific 
endeavors is the FRA currently undertaking to better understand worker 
fatigue and how would you apply this to hours-of-service reform?
    Answer. As Appendix B to my written testimony describes, research 
has shown that the quality of sleep varies with the time of day. 
Because it is more difficult to sleep during the day, employees whose 
off-duty periods occur during the day average less sleep than those who 
are predictably off-duty during nighttime hours. Yet, the current 
hours-of-service laws, and any pending proposals to establish specific 
statutory maximum on-duty and minimum off-duty periods across the 
board, treat both groups of employees equally, without recognizing that 
an employee who is subject to unpredictable work schedules, and off-
duty periods during the day, may require a longer period off-duty to 
achieve sufficient sleep than an employee who has a more predictable 
schedule and/or whose off-duty period permits the opportunity to sleep 
during the night.
    In addition, our scientific understanding of circadian rhythms 
indicates that sleep-wake cycles in less than a 24-hour period rapidly 
change the circadian pattern, which contributes significantly to 
fatigue. Under the current law, an employee is likely on a regular 
basis to have more than one cycle of sleeping and waking within 24 
hours. This is even more detrimental to employees who may be less able 
to effectively use their off-duty period to obtain sufficient sleep. 
Fatigue models using crew scheduling data also reveal a positive 
correlation between the time of day and circadian pattern, and the risk 
of a human-factor accident, with that risk being greatest between 
midnight and 3 a.m.
    Over the past two decades, significant progress has been made in 
sleep science and in our understanding of the role of fatigue in our 
daily lives. The NTSB has played a salutary role in calling out fatigue 
as a factor in at least 18 rail accidents since 1984. FRA-funded 
research has used an integrated strategic planning and evaluation 
strategy of field data collection, laboratory simulations, and analysis 
and evaluation of Fatigue Management Systems to enrich our knowledge of 
fatigue as it affects employees in a wide range of railroad 
occupations. This multi-faceted research has resulted in a strategic 
fatigue roadmap for FRA that identifies work scheduling as one of the 
top policy issues, and a key starting point for addressing the fatigue 
problem in the rail industry today.
    FRA's analysis of data gathered by our Switching Operations 
Fatality Analysis (SOFA) Working Group indicates that fatigue (largely 
related to biological rhythms or time of day) was likely responsible 
for more than 22 percent of the risk of SOFA severe incidents from 1997 
through 2003. In July of 2006, FRA released the Collision Analysis 
Report, which identified compromised alertness as a likely significant 
factor in 29 percent of the collisions reviewed in detail by a panel of 
railroad subject matter experts representing labor, management, and the 
Federal Government.
    On November 29, 2006, we announced the release of an important new 
study entitled Validation and Calibration of a Fatigue Assessment Tool 
for Railroad Work Schedules (the Validation Study), which confirmed the 
applicability of a Department of Defense fatigue model to railroad 
operations. The Summary Report from that study described the 
relationship between fatigue and human-factor train accidents. The 
study is the largest and most rigorous of its kind, based on review of 
30-day work histories of locomotive crews involved in 400 human-factor 
and 1,000 other train accidents. The data from the model validation 
study showed that there is a reliable relationship between the time of 
day of human-factor accidents and the expected, normal circadian 
rhythm. This circadian pattern was not reliably present for accidents 
not caused by human factors.
    The results of this accident analysis study indicated that a 
fatigue model could predict an increased risk of human-factor accidents 
under certain conditions that cause fatigue. A bio-mathematical fatigue 
model, known as SAFTE (Sleep, Activity, Fatigue, and Task 
Effectiveness), was used to estimate crew cognitive effectiveness based 
entirely on work schedule information and opportunities to obtain 
sleep. Effectiveness is a metric that tracks speed of performance on a 
simple reaction-time test and is strongly related to overall cognitive 
speed, vigilance, and the probability of lapses. The model rates 
effectiveness on a scale from 0 to 100. There was a reliable linear 
relationship between crew effectiveness (fatigue) and the risk of a 
human-factor accident: as crew effectiveness declined, human-factor 
accident risk went up. No such relationship was found for accidents not 
caused by human factors. This result satisfied the criteria for model 
validation. The risk of human-factor accidents was elevated at any 
effectiveness score below 90 and increased progressively with reduced 
effectiveness. There was a reliable time-of-day variation in human-
factor accidents, but not in accidents not caused by human factors. 
Human-factor accident risk increased reliably when effectiveness was 
below 70, a value that is the rough equivalent of a 0.08 blood alcohol 
level or being awake for 21 hours following an eight-hour sleep period 
the previous night. Below an effectiveness score of 70, accident cause 
codes (codes defined by FRA that indicate the factors that caused the 
accident, such as passing a stop signal or exceeding authorized speed) 
were of the sort expected in situations involving fatigue, confirming 
that the relationship between accident risk and effectiveness was 
meaningful. If an individual had an effectiveness score of less than or 
equal to 50, his or her chance of having a human-factor accident was 
increased 65 percent.
    When we released the report on validation of the SAFETE model last 
November, we also released a White Paper summarizing the results of 
research to date. This information can be accessed on our website at 
http://www.fra.dot.gov/us/content/
1737.
    We would be glad to provide a further briefing on these and other 
research initiatives.
    For these reasons, FRA believes that in order to take maximum 
advantage of the scientific learning on fatigue, the hours-of-service 
laws must have sufficient flexibility to take into account the 
predictability or lack of predictability of shifts (especially since 
collective bargaining agreements provide only 2 hours notice prior to 
the next on-duty period), time of day, and other factors, in 
determining the appropriate maximum on-duty and minimum off-duty 
periods that will give an employee the best opportunity to obtain the 
necessary sleep, which may not be the same for every employee or group 
of employees performing the same job functions.
    In addition, a more flexible approach to the hours-of-service laws 
would allow FRA to address, where necessary, crew scheduling practices, 
using existing research, and the railroads' own experiences with 
fatigue management policies, to alleviate the working conditions that 
contribute to fatigue. Some areas that could be addressed include 
requirements of periods of undisturbed rest, the use of call windows, 
and automatic markup procedures for employees returning from extended 
leave. All of these policies would increase the predictability of 
employees' work schedules, which would enable employees to maximize the 
opportunity to obtain sufficient sleep during off-duty periods.

    Question 2. Wouldn't you agree that workers are better off getting 
8 hours of sleep each night versus 5 or 6?
    Answer. I certainly agree that getting 8 hours of sleep each night 
is preferable to getting only 5 or 6 hours of sleep, as research shows 
that most people need 7 to 8 hours of sleep per night to function at 
peak effectiveness. Under the current hours-of-service laws, it is 
unlikely, if not impossible, for some employees to get 7 or 8 hours 
sleep, as they get only 8 or 10 hours off before they can be required 
to return to duty. However, simply increasing the minimum off-duty 
period, while giving the appearance of providing this opportunity, will 
not be sufficient to ensure that all employees truly have the 
opportunity to obtain sufficient sleep, if we do not also address other 
aspects of their working conditions that inhibit their ability to get 
enough sleep.
    As was discussed in Appendix B to my written testimony, and in 
response to Question 1 above, the time of day in which employees work 
or try to sleep, and the corresponding circadian patterns, have an 
effect on the ability to get proper sleep. Research has shown that 
locomotive engineers whose shifts ended between 5 a.m. and noon 
obtained the least sleep during their off-duty period, even if its 
length was the same as employees working at other times of the day. 
Thus, these employees might benefit from even more time off than other 
employees, to have a greater opportunity to get enough sleep before 
returning to duty. Requirements tailored to the specific scheduling 
practices and other factors that affect different groups of employees, 
as borne out by research, would be more effective in ensuring that 
employees have the opportunity to get the optimal amount of sleep 
during off-duty time.

    Question 3. Don't you think this would have a dramatic effect on 
safety, given that worker fatigue accounts for 1 out of every 4 train 
accidents?
    Answer. As I indicated in my testimony, human factors cause roughly 
40 percent of all train accidents and fatigue is at least a 
contributing factor in one out of every four serious human factor-
caused train accidents. This does not include accidents caused by track 
or equipment defects, or other causes. In addition, fatigue is often a 
factor in employee injuries not related to train accidents. Certainly, 
railroad employees who get more sleep will be less likely to suffer the 
consequences of fatigue, including the risk of accidents caused or 
contributed to by fatigue. However, as I have pointed out in my 
testimony and the responses above, simply increasing minimum off-duty 
periods may be insufficient to achieve the goal of having employees who 
get more sleep, if the other factors in the work environment that 
affect employees' ability to get enough sleep are not also addressed. 
In particular, it is important for employees to know approximately when 
they will be expected to report for an assignment so that they can plan 
to take rest. In the railroad industry, many employees in road service 
work in rotating pool assignments and on ``extra boards.'' These 
employees will often know when they are available to be called (i.e., 
when their statutory rest will end), but not when they will actually be 
called.

    Question 4. Assuming this bill passes and we conference with the 
House, when do you think the hours-of-service reforms would be 
implemented by the government and then the rail industry? What is the 
timeline?
    Answer. The Senate bill gives FRA 180 days from the date of 
enactment to promulgate regulations requiring railroads to keep records 
that comply with the new requirements in the bill, to provide for 
electronic recordkeeping, and to require training of employees, and the 
Senate bill provides that the amendments to the hours-of-service laws 
themselves are effective 1 year from the date of enactment. The House 
bill would become effective immediately upon enactment.
    FRA could likely draft the required regulations within the 180 days 
provided in the Senate bill, although the required levels of review 
might be more difficult. These regulations would be one of the first 
steps to inform the regulated community of what is expected. Training 
would also be required, not only for the regulated community, but also 
for FRA inspectors who would be enforcing the new law. Once the new 
provisions are understood and FRA's hours-of-service recordkeeping 
regulations are revised to require records that comply with the new 
law, the railroads will need time to adapt the records they are 
currently using to be in compliance.
    Under either the House or Senate bill, a railroad of any size will 
likely need to use an electronic recordkeeping system in order to 
determine the current availability of employees and to verify 
compliance with the law. Whether or not a railroad currently has an 
electronic recordkeeping system, programming to comply with the new law 
will involve extensive work. In the case of existing systems, for 
instance, the proposed legislation would require revision to the logic 
through which the electronic programs use data entered by employees to 
calculate maximum and minimum periods and other limitations so that it 
addresses new limitations added to the law, such as maximum hours per 
month. In addition, the new law would require changes to some of the 
screens presented to the employees for input and to FRA for the 
inspection of records.
    An example may be illustrative of some of the changes in railroad 
practices and electronic recordkeeping programs that will be required. 
Time spent completing hours-of-service records is administrative duty 
that is ``other service for the carrier'' under the law, which 
commingles with the employee's covered service and is considered part 
of an employee's time on-duty. FRA has allowed railroads to structure 
their programs so that employees who are approaching or have exceeded 
the maximum allowed time on-duty are presented a ``quick tie up'' 
screen, on which they enter only their relieved and released times, a 
phone number at which they can be reached if different from that on 
record, and a ``board placement time'' which is a collective bargaining 
issue. Employees complete the record, entering deadhead transportation 
and other activities, the next time they return to duty. This practice 
would have to change under the new law, as railroads would need the 
information about employees' time spent awaiting and in deadhead 
transportation to final release before an employee begins a statutory 
off-duty period, to determine whether and in what amount an employee 
may be entitled to additional off-duty time, and the employee would 
likely need to request any additional time to which he or she is 
entitled at that time. This will require a change not only in railroad 
practices, but in programming, so that the electronic program presents 
the full record for completion, and the railroad ensures that employees 
have enough time to complete the full record within the limitations of 
the statute.
    In spite of the many challenges, FRA and the industry would work 
diligently to meet the one-year deadline for implementation in the 
Senate bill.
                                 ______
                                 
    Response to Written Question Submitted by Hon. John F. Kerry to 
                          Edward R. Hamberger
    Question. Assuming this bill passes and we conference with the 
House, when do you think the hours-of-service reforms would be 
implemented by the government and then the rail industry? What is the 
timeline?
    Answer. The timeline would depend upon the requirements of the 
final legislation. For instance, the Senate bill would make some Hours-
of-Service changes effective ``one year after the date of enactment of 
this Act.'' In this case, the exact effective date would depend upon 
the date the President signs the final legislation into law. The Senate 
bill would grant additional authority for Hours-of-Service changes to 
the Secretary of Transportation. The effective date for these changes 
might have to be phased-in over a longer period of time, depending upon 
existing labor agreements and other factors.

                                  
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