[Senate Hearing 114-227]
[From the U.S. Government Publishing Office]
S. Hrg. 114-227
NOMINATION OF SARAH E. FEINBERG
TO BE ADMINISTRATOR,
FEDERAL RAILROAD ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 17, 2015
__________
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 FOURTEENTH CONGRESS
FIRST SESSION
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri MARIA CANTWELL, Washington
MARCO RUBIO, Florida CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas EDWARD MARKEY, Massachusetts
DAN SULLIVAN, Alaska CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin TOM UDALL, New Mexico
DEAN HELLER, Nevada JOE MANCHIN III, West Virginia
CORY GARDNER, Colorado GARY PETERS, Michigan
STEVE DAINES, Montana
David Schwietert, Staff Director
Nick Rossi, Deputy Staff Director
Rebecca Seidel, General Counsel
Jason Van Beek, Deputy General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Clint Odom, Democratic General Counsel and Policy Director
C O N T E N T S
----------
Page
Hearing held on September 17, 2015............................... 1
Statement of Senator Thune....................................... 1
Statement of Senator Nelson...................................... 4
Prepared statement........................................... 4
Statement of Senator Manchin..................................... 5
Statement of Senator Blunt....................................... 20
Statement of Senator McCaskill................................... 22
Statement of Senator Fischer..................................... 24
Statement of Senator Peters...................................... 26
Statement of Senator Wicker...................................... 30
Statement of Senator Klobuchar................................... 32
Statement of Senator Daines...................................... 33
Statement of Senator Blumenthal.................................. 35
Statement of Senator Cantwell.................................... 37
Witnesses
Sarah E. Feinberg, to be Administrator, Federal Railroad
Administration, U.S. Department of Transportation.............. 7
Prepared statement........................................... 9
Biographical information..................................... 11
Appendix
Response to written questions submitted to Sarah E. Feinberg by:
Hon. John Thune.............................................. 39
Hon. Kelly Ayotte............................................ 49
Hon. Dan Sullivan............................................ 50
Hon. Steve Daines............................................ 51
Hon. Amy Klobuchar........................................... 53
Hon. Richard Blumenthal...................................... 54
Hon. Cory Booker............................................. 55
Hon. Tom Udall............................................... 57
NOMINATION OF SARAH E. FEINBERG
TO BE ADMINISTRATOR,
FEDERAL RAILROAD ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION
----------
THURSDAY, SEPTEMBER 17, 2015
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 9:52 a.m., in
room SR-253, Russell Senate Office Building, Hon. John Thune,
Chairman of the Committee, presiding.
Present: Senators Thune [presiding], Wicker, Blunt,
Fischer, Daines, Nelson, Cantwell, McCaskill, Klobuchar,
Blumenthal, Manchin, and Peters.
OPENING STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
The Chairman. I want to welcome our nominee here this
morning and get this confirmation hearing underway.
Today, we are going to consider the nomination of Sarah
Feinberg to be the next Administrator of the Federal Railroad
Administration.
The FRA's mission is to oversee the safe, reliable, and
efficient movement of people and goods throughout our nation's
rail network. That rail network is absolutely vital to the
Nation's economy, so it is important that those who directly
oversee the safety and efficiency of this network have the
requisite skills and experience.
Ms. Feinberg has been serving as the acting FRA
Administrator since January. Prior to her current assignment,
she served as Chief of Staff to Transportation Secretary
Anthony Foxx from 2013 to 2014. From 2011 to 2013, Ms. Feinberg
was the Policy and Crisis Communications Director at Facebook.
And from 2009 to 2010, she served as Special Assistant to the
President and Senior Advisor to then-White House Chief of Staff
Rahm Emanuel. Before that, she served as Mr. Emanuel's
Communications Director for the House Democratic Caucus.
While Ms. Feinberg clearly has substantial communications
experience and an admirable commitment to public service, some
have raised concern that her background does not include a deep
expertise or experience on issues regarding railroads or
railroad safety. As noted in an April 11, 2015, article in
Politico, ``At this crucial moment the nation's top railroad
safety regulator is a former Facebook executive and White House
advisor whose resume is long on communications and policy posts
and noticeably short on railroad experience.''
So, in addition to asking Ms. Feinberg to respond to those
concerns, I will be also asking her about the looming deadline
for railroads to implement Positive Train Control. As those in
the rail industry are well aware, PTC is a communications
system designed to prevent rail collisions, over-speed
derailments, and other accidents by automatically slowing or
stopping a train that is not being operated safely by
locomotive engineers.
The Rail Safety Improvement Act of 2008 mandated the
implementation of PTC systems by December 31, 2015. However,
complex and interrelated implementation challenges have
prevented most railroads from meeting this deadline, which is
rapidly approaching.
Yesterday, the independent Government Accountability Office
issued an updated report that found that freight and passenger
railroads continue to face significant challenges in
implementing PTC, and the vast majority of railroads would need
1 to 5 years to complete implementation. Even the small
fraction of railroads that will be able to install PTC on their
own tracks by December 31st of 2015 will face testing,
certification, and interoperability issues prior to full
implementation.
As profiled at many hearings convened by this committee,
PTC is not an off-the-shelf technology. The GAO attributed
implementation difficulties to the development of first-
generation components, the limited number of manufacturers of
those components, and complex system integration and testing,
among other challenges.
Some of the implementation issues have also been
government-created. The GAO pointed out that, as a result of
permitting review issues, the Federal Communications Commission
halted the construction of critical communication towers for a
year, effectively delaying implementation.
The GAO also pointed out that FRA's review of safety plans
has been slow and its oversight efforts have been insufficient.
GAO ultimately found that railroads pushing to meet the current
unrealistic deadline--installing components before defects are
identified and addressed--could be counterproductive to
successful implementation.
These findings should not come as a surprise. The FRA
itself issued a report in 2012 that identified several
technical and programmatic issues affecting implementation,
such as spectrum availability, installation and engineering
challenges, and technical capacity. It has said for years that
the vast majority of railroads will not meet the current
deadline.
Railroads have spent billions of dollars working through
these challenges. CSX testified at a Commerce Committee hearing
in January that the freight railroad industry has spent over $5
billion of private funds on PTC development and deployment, and
they expect to spend at least $9 billion to make PTC fully
operational nationwide.
The reality is that if only a few railroads could not meet
the deadline perhaps we could conclude there is an issue with
those railroads, but if nearly every railroad in the country
will not meet the deadline, we need to acknowledge that there
is an issue with the deadline.
Congress has the responsibility to fix the issue. That is
why legislative action is needed to extend the deadline and
provide operating authority for railroads that have not
completed PTC implementation, while still motivating compliance
and enhancing safety.
The surface transportation reauthorization bill, which
passed the Senate by a vote of 65 to 34, includes a bipartisan
proposal to extend the PTC deadline on a case-by-case basis
with enforceable milestones and metrics and sets commonsense
safety requirements, such as cameras and speed limit action
plans for passenger trains while PTC is being implemented.
I believe that failing to extend the PTC deadline will
result in large-scale disruptions to the Nation's economy that
would make the West Coast port disruption or the 2013 to 15
rail service problems that impacted a large portion of the
country look small in comparison.
That is why I recently sent letters to the Surface
Transportation Board, all seven Class I railroads, and all
covered commuter railroads inquiring about the effects of
failing to extend the PTC deadline. Responses to my letters
indicate tremendous risk of service disruption, including the
cessation of passenger rail traffic and major delays that will
impact freight railroads, including the inability to ship
critical chemicals such as chlorine for water treatment plants
across the country and anhydrous ammonia for the fertilizer
that our agriculture sector requires.
MTA in New York, responsible for Metro-North and the Long
Island Rail Road, two of the three largest commuter railroads
in the country that collectively provide nearly 180 million
rides annually stated, and I quote, ``Railroads face serious
potential disruptions to operations and exposure to
unacceptable risks of liability and civil fines, all of which
would divert railroad resources from the critical task of
speeding final implementation of PTC,'' end quote.
Union Pacific, the largest freight railroad in the country,
clearly stated in its response to my letter that it will
embargo all passenger and toxic-by-inhalation chemical traffic
starting on January 1, 2016. This includes chemicals essential
for clean drinking water and healthy crops.
In fact, the Chairman of the Surface Transportation Board
stated in his response to me that railroads may not be
obligated to ship such TIH chemicals after the December 31st
deadline, which could redirect them to other modes that are
less efficient and, importantly, less safe.
We cannot wait until the last minute to act. I believe
absent congressional action we will begin to see the effects of
the deadline 4 to 6 weeks prior to the December 31 deadline as
railroads begin to cycle traffic off their lines. This is a
looming economic and safety disaster that is completely
avoidable.
So now, more than ever, I believe that Ms. Feinberg, as the
Acting Administrator of the FRA, has a responsibility to work
with us in Congress to avoid the potential service disruptions.
The time for anyone to play politics with the PTC deadline is
past, and we as policymakers must work together to avoid
disrupting the Nation's economy.
Having said all this, I want to thank Ms. Feinberg for her
willingness to serve at the DOT. Despite some of the criticisms
that I mentioned earlier, Ms. Feinberg has received many
compliments for her willingness to be transparent and
responsive to Congress, which will be essential if she is
confirmed.
With that, I want to turn now to the Ranking Member of the
Committee, the distinguished Senator from Florida, and
recognize him for any remarks that he would like to make before
we turn to our nominee.
Senator Nelson?
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Mr. Chairman, you have laid out a lot of
the issues, and I would be duplicative to repeat. And,
therefore, what I am going to do is insert into the record my
opening statement.
Let me say, at a critical time, a time in which there are
questions of safety, the millions of people that use commuter
rail, at a time essential to the economy of this country that
we have healthy railroads, that they can be competitive, they
can operate safely, reliably, and efficiently, and with safety
being central to the FRA's mission. Indeed, we have seen train
accidents decline and fatalities decline, but then we have huge
incidents of fatalities that bring it back to the fore.
And so, Ms. Feinberg, for you to be willing to step into
the breach and try to offer the leadership that is so
desperately needed of the Federal Railroad Administration,
which oversees the safety and development of the nation's
freight and intercity passenger rail networks.
So it is a critical appointment, it is a critical time. It
is a time that the FRA cannot let anything be slack and drop.
So I will insert my opening statement in the record.
[The prepared statement of Senator Nelson follows:]
Prepared Statement of Hon. Bill Nelson, U.S. Senator from Florida
I would like to thank the Chairman for calling this important
nominations hearing to consider Ms. Sarah Feinberg to be the next
Administrator of the Federal Railroad Administration.
Ms. Feinberg, congratulations on your nomination. I want to thank
you for your willingness to serve the American people.
The Federal Railroad Administration, within the U.S. Department of
Transportation, oversees the safety and development of the Nation's
freight and intercity passenger rail networks.
Railroads have played a critical role in developing and uniting our
Nation.
Each day, millions of passengers rely on our rail system to commute
to and from work or travel to destinations all across the country.
Amtrak alone carries more than 30 million passengers annually.
Railroads also connect thousands of communities to the global
economy by bringing American goods to ports, such as the Port of Miami,
where they are then exported abroad.
Today, freight railroads remain the backbone of the Nation's
economy. About 40 percent of all freight in the U.S. moves by rail,
more than any other mode.
For our country to remain competitive, railroads must operate
safely, reliably, and efficiently.
With safety being central to FRA's mission, I am encouraged that
since 2005, train accidents have declined by 45 percent, and fatalities
have declined by 16 percent.
At the same time however, we continue to witness tragic train
accidents.
In December 2013, a commuter train derailed in New York, resulting
in 4 fatalities and close to 70 injuries.
In January 2015, a Metro-North commuter train, also in New York,
struck an SUV on its tracks, killing six and injuring many more--the
deadliest accident in Metro-North's history.
Most recently, in May, an Amtrak train derailed in Philadelphia,
killing eight passengers and injuring more than 200.
These high profile incidents, just to name a few, are unfortunately
not the only tragedy we see on the Nation's rails.
Across the country, accidents at grade crossings kill over 200
people each year.
These accidents are stark reminders that we can and must do more. I
look forward to hearing how the FRA can assist in these efforts,
especially with respect to implementing positive train control,
enforcing DOT's new regulations on transporting crude oil, and efforts
to further reduce accidents at grade crossings.
And I also look forward to hearing your ideas about the role, going
forward, that our Nation's freight and passenger rail systems can play
within the broader transportation network.
Our population is growing, our highways and airports are congested,
and we have to find a way to catch up with the rest of the world on
developing modern, high-speed passenger rail lines.
Again, thank you for appearing before us today Ms. Feinberg and I
look forward to your testimony.
The Chairman. Thank you, Senator Nelson. And we will make
sure that that is all included for the record.
We have with us today one of our very distinguished
colleagues and a member, a very active member of this
committee, I might add, and the home state senator of Ms.
Feinberg to introduce her. And so we want to welcome to the
other panel--he is normally up here on the dais--our colleague
from West Virginia, Senator Manchin.
Senator Manchin, do you want to proceed? Thank you.
STATEMENT OF HON. JOE MANCHIN,
U.S. SENATOR FROM WEST VIRGINIA
Senator Manchin. Thank you, first of all, to my colleagues
and to you, Mr. Chairman, for allowing me this opportunity to
introduce a most accomplished young woman. It is really an
honor to introduce the Acting Administrator of the Federal
Railroad Administration and a friend of mine, Sarah Feinberg.
As you know, she is from West Virginia and grew up in the
most commonsense, nonpartisan state, if you will. As a native
West Virginian, she has the same pragmatic approach to problem-
solving that you see among our congressional delegation every
day. In West Virginia, it doesn't matter if you are a
Republican or a Democrat; you just have to get something done.
People expect you to do your job.
I want to tell you, when I first was introduced to this
young lady in 1983, her daddy was in the state legislature with
me, Lee Feinberg, and he brought this little girl in, 6 years
old--5 or 6, I think, at the time. And we all bring our kids
and show our kids off--you all remember that--in the state
legislature. And here comes this little girl, just
rambunctious, jumping around and running around the chamber and
everything.
That was my first introduction to Sarah. I watched her grow
into a young lady and then to a most accomplished young woman.
And she has done such a fantastic job, and we are so proud.
She comes out of the same--she is cut from the same cloth
as we have in Sylvia Burwell, a West Virginia native I think
you have found to be very pragmatic and responsive to all of
us.
But today she sits before the Committee seeking to continue
her public service as the Administrator of the Federal Railroad
Administration. Over the past 9 months, I believe she has
proven herself to be an effective and engaged leader with the
courage to make tough decisions and the character to accept
criticism that they often incite.
She was baptized by fire after being appointed to this
position January 9 of this year, leading the agency's response
to five major incidents within her first 60 days on the job.
On February 3, six people were killed when a commuter train
hit an SUV at a grade crossing in Valhalla, New York. On
February 4, 14 tank cars carrying ethanol derailed just north
of Dubuque, Iowa; 3 of them caught fire.
On February 16, 27 tank cars derailed outside Mount Carbon,
West Virginia. They released 378,000 gallons of crude oil and
ignited a fire that destroyed a nearby house. It could have
wiped out a whole community if it had been a mile down the
track.
On February 24, a commuter train in Oxnard, California, hit
a tractor trailer at a grade crossing and jumped the tracks. On
March 6, 21 cars derailed outside of Galena, Illinois, near the
border with Wisconsin; 5 of them caught fire.
I am a firm believer that elected officials need to be on
the ground in emergency situations supporting first responders
and assisting those in need, and I was impressed by Sarah's
response to the Mount Carbon derailment in West Virginia, which
I witnessed firsthand. Five weeks into her new job, she
executed an efficient and effective Federal response that was
one of the best I have ever seen in my experience as an elected
official who has been through many tragedies in my state.
There are a lot of smart policy people here in Washington,
D.C., but the best policy in the world won't mean a thing if it
doesn't translate into the real world. Sarah's response to the
Mount Carbon accident showed me that she understood that and
gave me faith in her ability not just to lead but to listen to
the people that we are here to serve.
Over the past 10 years, the increase of domestic energy
production has been an engine of economic growth for our great
country, and the Energy Information Administration predicts
that growth will continue through 2020. From 2009 to 2014,
crude oil production in the United States increased by more
than 62 percent, up from 5.35 million barrels per day in 2009
to 8.68 million barrels per day in 2014.
And the majority of this product is moved by rail. In 2008,
our railroads moved a meager 9,500 tank cars carrying crude
oil. Remember in figure: In just 2008, only 9,500 tank cars
were carrying crude oil. Last year, the number grew to 500,000
tank cars--500,000 from less than 10,000, over a 5,000-percent
increase.
Unprecedented new challenges come along with the new
economic opportunities presented by the growth in domestic
energy production, and Ms. Feinberg's experience makes her
uniquely qualified to lead the FRA through this transition.
As Chief of Staff to Secretary Foxx, she helped the
Department of Transportation develop a holistic strategy to
improving the safety and security of crude oil by rail that
required coordination between multiple administrations within
the department.
The tough new tank car safety regulations that were
finalized in May were dependent on close collaboration between
the FRA and the Pipeline and Hazardous Materials Safety
Administration. Sarah's experience in the Secretary's office
and existing relationships throughout the department allowed
her to cut through red tape and get the right people in the
room to get the job done. That is what it is about: putting
people together that want to get something done.
While the new rules do not solve every problem, they
represent a major step in the right direction. They satisfied
all or part of the 10 outstanding National Transportation
Safety Board's recommendations, including all 4 recommendations
that were made in April of this year.
So, since taking the helm at the FRA earlier this year, I
have been impressed with Ms. Feinberg's willingness to tackle
difficult issues and engage stakeholders about realistic
solutions, taking politics out of the equation completely.
In May, she convened the PTC Task Force to try to identify
opportunities for the FRA to help railroads meet the December
31, 2015, deadline and become a real partner in the process. I
think her proactive approach to problem-solving will be an
asset to the FRA and the entire Department of Transportation
and to all of us sitting here responsible for the safety of our
citizens in our respective states.
So, without further ado, I want to introduce to you not
only an accomplished young professional committed to public
service--and she inherited that in her genes and her bones; it
is with her every day--in a bipartisan way to get things done
to move this country forward, my friend Sarah Feinberg.
The Chairman. Thank you, Senator Manchin. And that just
underscored how old you are, when you described that, so----
[Laughter.]
The Chairman. But thank you for being here, and thank you
for that introduction.
And we now look forward to hearing from our nominee.
Ms. Feinberg, please proceed.
STATEMENT OF SARAH E. FEINBERG, TO BE ADMINISTRATOR, FEDERAL
RAILROAD ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION
Ms. Feinberg. Chairman Thune, Ranking Member Nelson, and
members of the Committee, thank you for the opportunity to
appear before you today.
Senator Manchin, thank you for your kind introduction. I am
grateful for your friendship, your decades of service to our
state, and your strong support.
I will just briefly note that I am so pleased that my
brother Matthew is here with me today and that other members of
my family are here with me in spirit.
It is an honor to have been nominated by President Obama to
serve as the administrator for the Federal Railroad
Administration and to have earned the confidence of Secretary
Foxx. It is also a great responsibility and one that I take
seriously.
Just one month after I became Acting Administrator, a
Metro-North train traveling out of New York City hit a car at a
grade crossing. Six people were killed doing what millions of
Americans do every day: traveling home from work, visiting
friends, or on their way to see their family.
Days later, in Senator Manchin's and my home state of West
Virginia, a mile-and-a-half-long train carrying 109 tank cars
loaded with crude oil derailed near the town of Montgomery. One
person was injured, multiple small communities were evacuated,
and a fire burned for days. And anyone who visited the scene
would agree that we got lucky.
In May, an Amtrak train traveling significantly over the
speed limit derailed in Philadelphia. The horrific accident
took the lives of eight people.
These accidents are searing reminders that millions of
Americans depend on the railroads and FRA's diligent oversight
to transport them safely to their jobs each morning, to their
homes and families each night, and to deliver goods and
products safely every day.
Next year, FRA will turn a half-century old. The agency has
a proud history and a long list of accomplishments, most
notably its significant contributions to improving rail safety.
Rail deaths and injuries are down dramatically, worker injuries
are down, derailments are down, and those decreases are very
much a testament to the work of the men and women of the FRA.
But, in some ways, safety in the rail industry has also
plateaued. Improvements are generally not as dramatic as they
used to be, and we occasionally even see spikes in the wrong
direction. And that calls for action.
The American people expect every Federal agency to adapt to
new conditions and new realities, to be willing to change, to
be open to criticism. Over the last 8 months, I have seen FRA
do just this. They have shown a willingness to adapt to change,
we have headed in a new direction, and we have brought new
thinking to old challenges.
We have tried new solutions aimed at addressing the old
challenge of grade crossing incidents. We have partnered with
police around the country to step up enforcement. And, in June,
Google agreed to integrate our grade crossing data to add
crossing alerts to Google Maps.
We have taken a new approach to the way we handle NTSB
recommendations. When I arrived at FRA in January, there were
more than 70 NTSB recommendations awaiting action. We have
taken action on more than half of them, reducing the number of
outstanding recommendations by nearly 15 percent, and we await
word on another 30 from the NTSB. Some of these recommendations
had been sitting for more than 5 years.
FRA listened to the frustrations that members of this
committee expressed about the Railroad Rehabilitation and
Improvement Financing program, and we have acted. This year, we
have completed two loans and expect to complete two more
shortly. The RRIF program is very much open for business.
While working to try to bring new solutions to these old
challenges, the men and women of FRA have stayed laser-focused
on our ongoing priorities and have delivered significant
results.
During the last 2 years, the United States has seen more
than a dozen crude oil train derailments. In May, with our
sister DOT agency, PHMSA, we completed the High-Hazard
Flammable Train rule--a final, comprehensive rule that aims to
prevent these types of accidents and lessen their impact if
they do occur.
We have prioritized PTC implementation, hiring staff and
creating a task force that reports to me regularly on progress
and the performance of each railroad. We were also proud to
work with many here today and in the greater New York City
region to provide a nearly $1 billion loan to implement PTC on
MTA's system.
Both the administration's budget and its GROW AMERICA Act
have requested significant funding to assist commuter railroads
on PTC. And, Chairman Thune, Ranking Member Nelson, I want to
thank you and members of this committee, in particular, for the
recently passed legislation that seeks to leverage nearly $200
million to cover some of the costs and expenses railroads face
when taking out a RRIF loan to implement PTC.
All of this activity is in addition to our continued focus
on making sure the agency's partners deliver high-speed
intercity passenger rail projects for the American people.
None of this success would have been possible without the
tireless work of the nearly 900 public servants at the agency
who are dedicated to rail safety, and it has been an honor to
lead them as Acting Administrator.
Chairman Thune and Ranking Member Nelson, I am pushing FRA
each day to be vigilant in the pursuit of safety, open to paths
of innovation from any source. The agency is engaged,
enthusiastic, and driven because we know the gravity of our
responsibilities and the size of our opportunities.
If confirmed, I would eagerly work with all members of this
committee and all Members of Congress to build a stronger and
safer rail system and one that we can all be proud of.
Thank you, and I look forward to taking your questions.
[The prepared statement and biographical information of Ms.
Feinberg follow:]
Prepared Statement of Sarah E. Feinberg, Acting Administrator, Federal
Railroad Administration, U.S. Department of Transportation
Chairman Thune, Ranking Member Nelson, and Members of the
Committee, thank you for the opportunity to appear before you today.
Senator Manchin, thank you for your kind introduction. I am grateful
for your friendship, your decades of service to our home state, and
your strong support.
I'll just briefly note that I'm so pleased that my brothers, David
and Matthew, are here with me, and other members of my family are with
me in spirit.
It is an honor to have been nominated by President Obama to serve
as the Administrator for the Federal Railroad Administration and to
have earned the confidence of Secretary Foxx. It is also a great
responsibility, one that I take seriously.
Just one month after I became Acting Administrator, a Metro-North
train traveling out of New York City with hundreds of passengers hit a
car at a grade-crossing. Six people were killed doing what millions of
Americans do every day: traveling home from work; visiting friends; on
the way to see family.
Days later, in Senator Manchin's and my home state of West
Virginia, a mile-and-a-half long train carrying 109 tank cars loaded
with crude oil derailed near the town of Montgomery. One person was
injured; multiple small communities were evacuated; a fire burned for
days. And anyone who visited the scene would agree: we got lucky.
In May, an Amtrak train traveling significantly over the speed
limit derailed in Philadelphia. The horrific accident took the lives of
eight people--again, men and women simply closing out an evening
commute and heading home to see their families.
These accidents are searing reminders that millions of Americans
depend on railroads, and FRA's diligent oversight, to transport them
safely to their jobs each morning, to their homes and families each
night, and to deliver goods and products safely every day.
Next year, FRA will be a half-century old. The agency has a proud
history and a long list of accomplishments, most notably its
significant contributions in recent years to improving rail safety.
Rail deaths and injuries are down dramatically, worker injuries are
down, derailments and incidents are down. And those decreases are very
much a testament to the work of the men and women of FRA and the rail
industry too.
But, in many ways, safety in the rail industry has plateaued.
Improvements are generally not as dramatic as they used to be, and we
occasionally even see spikes in the wrong direction. That calls for
action.
The American people expect every Federal agency to adapt to new
conditions and new realities, to be willing to change, to be open to
criticism. Over the last 8 months, that is what FRA has done--willing
to respond to new leadership, and a new direction. Along the way, we
found new solutions to old challenges.
We have tried new solutions to end the old challenge of grade
crossings accidents and fatalities. We partnered with police around the
country to step up enforcement. And, in June, Google agreed to
integrate our grade crossing data to add audio and visual alerts on
Google maps, marking the first time the agency has partnered with a
technology company.
We have taken a new approach to the way we handle old NTSB
recommendations. When I arrived at FRA in January, there were more than
70 NTSB recommendations awaiting action. With new determination, we
have taken action on more than half of them--reducing the number of
outstanding recommendations by nearly 15 percent. Some of these
recommendations had been sitting for at least five years. Today, we
await word back from the NTSB on another 30. I will not be satisfied
until each recommendation is acted upon, implemented, or at the very
least responded to.
We've also been looking for new solutions when it comes to our
financing programs. FRA listened to the frustrations that many members
of this committee expressed about the Railroad Rehabilitation &
Improvement Financing (RRIF) program, and we've acted. With more staff
and greater attention, we made the program stronger and faster. This
year, we have already completed two and expect to complete two more
soon. You have my word: the RRIF program is open for business.
While working to try to bring new solutions to these old
challenges, we've also stayed focused on our ongoing priorities. The
men and women of FRA have spent much of 2015 delivering significant
results on those priorities.
With our sister agency, the Pipeline and Hazardous Materials Safety
Administration, we completed the High Hazard Flammable Train rule.
Since the crude oil train derailment in Lac-Megantic, Canada, two years
ago, the United States has seen more than a dozen crude oil train
derailments of our own. In May, the Department of Transportation issued
a final, comprehensive rule that aims to prevent these types of
accidents--and lessens their impact if they do occur.
We've prioritized PTC implementation--hiring staff and creating a
task force that reports to me regularly on progress and the performance
of each railroad. We were also proud to work with many here today and
in the greater New York City region to provide a nearly $1 billion loan
to implement Positive Train Control on MTA's system.
Both the Administration's budget and its GROW AMERICA Act have
requested significant funding to assist commuter railroads on PTC
installation. Chairman Thune, I want to thank you and members of this
committee, in particular, for the recently passed legislation that
seeks to leverage $200 million to cover some of the costs and expenses
railroads face when taking out a RRIF loan to implement PTC.
All this activity is in addition to our continued focus on making
sure the Agency's partners deliver High Speed Intercity Passenger Rail
projects for the American people. We continue to closely monitor the
funding that Congress invested across the country to provide faster,
more frequent and more reliable passenger rail service.
None of this success would have been possible without the tireless
work of the nearly 900 public servants at the agency who are dedicated
to rail safety. It's been my honor to lead them as Acting
Administrator.
Chairman Thune and Ranking Member Nelson, I am pushing FRA each day
to be vigilant in the pursuit of safety, and open to paths to
innovation from any source. The agency is engaged, enthusiastic, and
driven, because we know the gravity of our responsibilities and the
size of our opportunities. A safe rail system is a strong rail system.
And our country continues to need rail to build its future.
If confirmed, I would eagerly work with all members of this
committee and all members of Congress to build a stronger and safer
rail system. One we can all be proud of.
Thank you Mr. Chairman, and members of the Committee, and I look
forward to your questions.
______
a. biographical information
1. Name (Include any former names or nicknames used): Sarah
Elizabeth Feinberg.
2. Position to which nominated: Administrator, Federal Railroad
Administration (FRA).
3. Date of Nomination: June 2, 2015.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: 200 New Jersey Ave, SE Washington, D.C. 20590.
5. Date and Place of Birth: October 3, 1977; Charleston, West
Virginia.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Not Applicable.
7. List all college and graduate degrees. Provide year and school
attended.
Washington and Lee University
Bachelor of Arts in Politics (1999)
8. List all post-undergraduate employment, and highlight all
management level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
Managerial-related positions are italicized below:
Acting Administrator
Federal Railroad Administration (1/2015 to present)
Deputy Administrator
Federal Railroad Administration (1/2015 to present)
Chief of Staff
U.S. Department of Transportation (9/2013-1/2015)
Director, Policy and Crisis Communications
Facebook (8/2011-9/2013)
Global Communications Director
Bloomberg LP (7/2010-8/2011)
Special Assistant to the President and Senior Advisor to the
Chief of Staff
The White House (1/2009-7/2010)
Advisor
Office of the President-Elect (11/2008-1/2009)
Communications Director
House Democratic Caucus (12/2006-11/2008)
National Press Secretary
Democratic Congressional Campaign Committee (1/2005-12/2006)
National/Leadership Press Secretary
Office of Senate Minority Leader Tom Daschle (10/2003-12/2004)
Deputy Staff Director
Senate Democratic Technology and Communications Committee
Office of Senate Minority Leader Tom Daschle (12/2002-10/2003)
Communications Director
South Dakota Democratic Party and Coordinated Campaign (2/2002-
11/2002)
Press Secretary
Environmental Working Group (5/2001-2/2002)
Consultant
Maple Creative, LLC (1/2001-5/2001)
West Virginia Press Secretary and Communications Director
Gore-Lieberman Presidential Campaign (8/2000-11/2000)
Staff Assistant
U.S. Senate Committee on Veterans Affairs (8/1999-8/2000)
9. Attach a copy of your resume. A copy is attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years: None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years.
Member, Amtrak Board of Directors (2015 to present)
Member, Board of Directors, Union Station Redevelopment
Corporation, (2015 to present)
Member, Board of Directors, Moynihan Station Development
Corporation (2015 to present)
Member, Northeast Corridor Commission (2015 to present)
Member, Board of Directors, StoryCorps (2012 to present)
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religious organization, private club, or other membership organization.
Include dates of membership and any positions you have held with any
organization. Please note whether any such club or organization
restricts membership on the basis of sex, race, color, religion,
national origin, age, or handicap.
Member, Women in Transportation (WTS) (2013 to present)
Member, Federally Employed Women (FEW) (2013 to present)
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for this debt. None.
14. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years. Also list all offices
you have held with, and services rendered to, a state or national
political party or election committee during the same period.
Contributions:
Entity Date Amount
Facebook, Inc. PAC 05/06/2013 $500.00
Obama for America 07/31/2012 $500.00
Obama for America 10/28/2012 $500.00
Obama for America 09/30/2011 $500.00
Positions:
National Press Secretary--Democratic Congressional Campaign
Committee (2005-2006)
Communications Director--South Dakota Democratic Party and
Coordinated (2002)
West Virginia Press Secretary and Communications Director
Gore Lieberman Presidential Campaign (2000)
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements: None.
16. Please list each book, article, column, or publication you have
authored, individually or with others. Also list any speeches that you
have given on topics relevant to the position for which you have been
nominated. Do not attach copies of these publications unless otherwise
instructed.
I have done my best to identify any books, articles, columns, or
other publications and relevant speeches, including a thorough review
of my personal files and searches of publicly available electronic
databases. Despite my searches, there may be other materials that I
have been unable to identify, find or remember. I have located the
following:
Publications:
None.
Speeches:
Speeches in my time at the Federal Railroad Administration can
be found here: http://www.fra.dot.gov/eLib/Find#pl_z5_gD_lPS
17. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
My testimonies before Congress and listed below can be found here:
http://www.fra.dot.gov/eLib/Find#pl_z5_gD_lPT
June 24, 2015
U.S. House of Representatives
Committee on Transportation and Infrastructure
Railroads, Pipelines and Hazardous Materials Subcommittee
Hearing on the State of Positive Train Control Implementation
in the United States
June 2, 2015
U.S. House of Representatives
Committee on Transportation and Infrastructure
Hearing on the Oversight of the Amtrak Accident in Philadelphia
May 4, 2015
U.S. Senate
Committee on Commerce, Science, and Transportation
Surface Transportation and Merchant Marine Infrastructure,
Safety and Security Subcommittee
Field Hearing on the Northeast Corridor, Newark, NJ
April 14, 2015
U.S. House of Representatives
Committee on Transportation and Infrastructure
Railroads, Pipelines and Hazardous Materials Subcommittee
Hearing on the Oversight of the Ongoing Rail, Pipeline and
Hazmat Rulemakings
March 25, 2015
U.S. House of Representatives
Committee on Appropriations
Transportation, Housing and Urban Development and Related
Agencies Subcommittee
Hearing on Fiscal Year 2016 Budget Request
18. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
My time as Acting Administrator and as Chief of Staff at the U.S.
Department of Transportation has most prepared me to serve in the
position of Administrator of the Federal Railroad Administration. In my
current capacity as Acting Administrator, I have led the agency's
response to multiple, significant rail incidents this year, including
the West Virginia crude derailment, the Valhalla/Metro-North grade
crossing incident, and the Amtrak # 188 derailment. I have led the
agency in becoming a more transparent and accountable organization. I
have set clear safety and accountability priorities and goals for the
agency, and I have led the FRA in creating a much closer working
relationship with the U.S. Congress and the National Transportation
Safety Board (NTSB). As USDOT Chief of Staff, I led operational and
legislative initiatives across all modes of transportation and served
as the direct manager of most USDOT leadership.
I want to serve as the Administrator of the Federal Railroad
Administration because in my short time at U.S. DOT, I have become
singularly focused on improving rail safety--ensuring those who travel
by and work or live on or near railroads are safe, and ensuring that
passenger rail service is an efficient, affordable, and safe mode of
transportation, and continues to be available and accessible to the
millions of Americans that depend on it for travel from and between
major urban areas, and small rural towns across the country.
19. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
If confirmed, I believe I have a responsibility to hire, manage and
oversee staff and managers that must prioritize efficient, careful and
appropriate use and deployment of taxpayer dollars and resources.
Managing each individual is a challenge, but I am responsible for
them--and will continue to keep in place management controls I
implemented upon becoming the Acting Administrator. Those controls
include weekly and sometimes daily meetings with individual managers
and directors across the agency, frequent reports detailing progress on
agency initiatives, and detailed questioning from the Acting
Administrator and other managers around specific projects and high
priority issues and challenges, such as the hiring of safety
inspectors. I also meet frequently with the FRA CFO and FRA Budget
Office, maintaining close contact and oversight of the FRA budget.
My experience in managing a large organization is derived most
specifically from my time as Chief of Staff of the U.S. Department of
Transportation, an agency employing more than 55,000 individuals. In my
capacity as Chief of Staff, I led operational and legislative
initiatives across all modes of transportation.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
Implementing Positive Train Control. Congress has mandated that PTC
be implemented by December 31, 2015. Most Class 1 railroads and
commuter railroads are unlikely to meet this deadline. Enforcing
against this deadline and supporting railroads in full PTC
implementation will be a priority for the FRA.
Constantly improving safety. While recent years have proven to be
the safest years on record for the rail industry, it is imperative that
the FRA continue to raise the bar on safety. Of particular concern is
the increased transport of crude by rail, resulting in increased risk
to passenger rail sharing track, and to the individuals, families, and
communities along crude routes. To that end, implementation of the
recent HHFT final rule will be critical.
Ensuring the RRIF program can be utilized by appropriate entities.
With approximately $34 billion remaining in the RRIF program, it is
critically important that the FRA take measures to increase flexibility
in the program to ensure the funds can be loaned to appropriate
applicants.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
I currently have investments in a managed account with Main Street
Financial Solutions, LLC. In connection with the nomination process, I
have consulted with the Office of Government Ethics and the Department
of Transportation's Designated Agency Ethics Official to identify any
potential conflicts of interest. Upon their advice, if confirmed, I
will terminate my managed account and move all investments from that
account into one that I personally manage.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain: No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
Designated Agency Ethics Official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with DOT's Designated Agency Ethics Official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
Designated Agency Ethics Official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with DOT's Designated Agency Ethics Official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
5. Describe any activity during the past ten years in which you
have been engaged for the purpose of directly or indirectly influencing
the passage, defeat, or modification of any legislation or affecting
the administration and execution of law or public policy.
Nothing applicable beyond the day-to-day work of the Chief of
Staff's office in the White House. In 2009-2010, the significant issues
I worked on included the financial crisis and ARRA.
6. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation's
Designated Agency Ethics Official to identify any potential conflicts
of interest. Any potential conflicts of interest will be resolved in
accordance with the terms of an ethics agreement that I have entered
into with DOT's Designated Agency Ethics Official and that has been
provided to this Committee. I am not aware of any other potential
conflicts of interest.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct,. or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business of which you are or were an officer
ever been involved as a party in an administrative agency proceeding or
civil litigation? If so, please explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination.
None to my knowledge.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees? Yes.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
Resume of Sarah Elizabeth Feinberg
Employment
Deputy Administrator, Federal Railroad Administration. Currently serves
as Acting Administrator of agency. Principal advisor to the Secretary
on railroad affairs and other intercity fixed guide way transportation
matters. Provides executive direction and leadership to the agency
charged with promulgating and enforce rail safety regulations,
administering railroad assistance programs, and improving railroad
safety for the traveling public. January 2015-present.
Chief of Staff, U.S. Department of Transportation. Chief advisor to the
Secretary. Responsible for management of all operational, strategic,
legislative initiatives across the department. Managed the day-to-day
operations of the multi-modal, 55,000 person agency, implementing the
Secretary's operational and policy visions, and executing upon
secretarial and department priorities. Led DOT's efforts with regard to
the immediate challenges facing the department, including expiration of
the surface transportation programs, FAA Reauthorization, and the
department's management of safety issues. September 2013-January 2015.
Director, Policy and Crisis Communications, Facebook. Managed message
strategy and communications surrounding issues such as litigation,
regulation, safety, security, privacy and data use, and other federal,
state and local legislative issues. Managed Facebook's Washington based
outreach and communications, as well as the company's political and
crisis communications, and political and governmental partnerships.
Managed official and personal communications for Facebook COO Sheryl
Sandberg, managed political and immigration reform-focused
communications for Facebook founder Mark Zuckerberg. Led Facebook's
social good program. Launched and led Facebook's organ donation
campaign, and Facebook's integration of non-profit organizations onto
the Facebook Gifts platform. August 2011-September 2013.
Director, Global Communications and Business Strategy, Bloomberg LP.
Managed Bloomberg's Washington-based communications, co-managed
Bloomberg's New York- and London-based communications. Focused on
expanding Bloomberg's communications, business and media presence
globally. Led communications and marketing launch of Bloomberg
Government. Launched many of Bloomberg's most well-known media events,
such as weekly on-the-record Bloomberg Breakfasts. July 2010-August
2011.
Special Assistant to the President and Senior Advisor to the Chief of
Staff, The White House. Served as senior advisor to WH Chief of Staff
Rahm Emanuel. Responsible for serving as Emanuel's communications lead
and liaison to several operations within the White House, including the
communications and domestic policy departments, the economic team, the
national security apparatus, and the legislative affairs department.
Responsible for managing day-to-day crisis and issue oversight for the
Chief of Staff (specifically: the banking and economic crisis, HINI
pandemic, national service issues, WV mining disaster); member of the
senior White House staff. January 2009-July 2010.
Communications Director, House Democratic Caucus, Chairman Rahm
Emanuel. Responsible for crafting and disseminating day-to-day and
long-term messaging for the entire House Democratic Caucus, and
specifically for freshmen and sophomore House classes, and for Chairman
Emanuel; specific responsibilities for communications planning and
executing on behalf of new members; organized leadership press offices
around daily and long-term messaging. Caucus communications office was
also responsible for daily caucus talking points, weekly press
secretary meetings, small and large Democratic press events. December
2006-November 2008.
National Press Secretary, Democratic Congressional Campaign Committee,
Chairman Rahm Emanuel. Served as national press secretary and
spokeswoman for DCCC and Chairman Emanuel during 05-06 election cycle,
during which Democrats won back the majority in the House of
Representatives. Offered strategic message guidance and advice to
Democratic challengers and incumbents; assisted campaigns in developing
and executing media plans; member of senior DCCC staff; traveled with
Chairman for media and fundraising travel. January 2005-December 2006.
National/Leadership Press Secretary, Office of the Senate Minority
Leader, Senator Tom Daschle. Served as Minority Leader Daschle's
leadership spokesperson for national and congressional reporters and
national issues; member of the senator's senior staff; staffed Senator
Daschle for interviews and media events; assisted South Dakota
communications operation with re-election messaging and press. October
2003-December 2004.
Deputy Staff Director, Senate Democratic Communications Committee,
Office of the Minority Leader, Senator Tom Daschle. Helped lead and
manage the Senate leadership committee responsible for assisting Senate
Democrats with day-to-day and long-term messaging, planning and
executing media events, and booking and staffing television, radio, and
print interviews. January 2002-October 2003.
Communications Director, South Dakota Democratic Party and Coordinated
Campaign. Communications director during U.S. Senator Tim Johnson's re-
election campaign in 2002; responsible for coordinating the state
party's messaging efforts in support of Senator Johnson and other top
state Democrats. February 2002-November 2002.
Other Employment Prior to 2002:
Press Secretary, Environmental Working Group. Washington,
DC. May 2001-February 2002.
West Virginia Press Secretary and Communications Director,
Gore-Lieberman Presidential Campaign. Charleston, WV. August
2000-November 2000.
Education
B.A. in Politics, Washington and Lee University, Lexington, VA. Minors/
Concentrations: Studio Art/Painting. September 1995-June 1999.
M.A. in Strategic Security Studies, National Defense University, Fort
Lesley McNair, Washington, DC. (Exited program in January 1999 upon
start of White House employment.)
The Chairman. Thank you, Ms. Feinberg.
I will start with some questions, and we will go around
with five-minute rounds here, just to alert members of the
Committee.
As I mentioned, the Committee has conducted extensive
outreach with freight and commuter railroads to understand the
effects of failing to extend the deadline to implement PTC, and
it is clear that there will be widespread rail service
reduction if Congress fails to act.
For example, Metra in Chicago, with over 70 million riders
annually, has stated there is a strong possibility that it will
cease service altogether, a concern that is echoed by Long
Island Rail Road, and Metro-North in New York and Connecticut.
And so I want to just get a couple of numbers on the
record. Based on your outreach to railroads, approximately have
informed the FRA that they may suspend or reduce service?
Ms. Feinberg. Senator, I think that you have the most
recent numbers because they have been responding to your most
recent letter. But, to put it this way, I have not had a recent
conversation with a railroad that has informed me that they do
intend to operate on January 1st. So I believe you have the
most recent numbers, but we are well into the 20s at this
point.
The Chairman. OK.
DOT evaluated the extent to which there will be an increase
in congestion or potentially lives lost and commuters taking
alternative modes of transportation?
Ms. Feinberg. We have not done a specific study that would
look at the effects on January 1st or on January 2nd, but I
have said that I do have significant concerns about the
consequences of railroads choosing not to operate on January
1st. I think it would lead to significant congestion, and that
does also lead to safety impacts.
The Chairman. Has FRA had any discussions with FTA to
determine whether transit buses have the capacity to carry
displaced riders who might otherwise be on commuter railroads?
Ms. Feinberg. Well, the FRA and FTA are in constant
communication about a variety of PTC issues. I don't think we
have had this specific bus conversation, though I don't think
there is an expectation that buses would be able to take that
load.
The Chairman. How about the smaller railroads, Class IIs
and Class IIIs? Some of those are frequently overlooked that
the mandate also applies to them, and they happen to use, in
many cases, Class I railroad track.
Roughly how many of these small railroads would be required
to equip their locomotives as a result of the PTC requirements?
And are you hearing of any difficulties these railroads may be
experiencing?
Ms. Feinberg. Certainly, we have heard generally from the
Short Line Association and from individual short lines and from
other individual entities. I mean, we can get you specific
numbers if you need it, but it is significant. But most are
watching the Congress and keeping an eye on what is likely to
come out of here.
The Chairman. Our colleague on the Committee, who I am sure
you will hear from in a moment, Senator Blumenthal, has noted
that entities like the Connecticut DOT should not be subject to
penalties for making a good faith effort to implement PTC, even
though Connecticut will not implement until at least 2018. He
has also noted that it is possible that Metro-North could be
spared fines if they showed a good faith effort.
If Connecticut DOT and Metro-North are considered to be
making a good-faith effort, are there others that are, as well?
Ms. Feinberg. Well, there are many railroads that are
making a good-faith effort and we believe have been working
diligently toward PTC implementation. But the law and the
statute, the deadline is very black and white and, in our read,
does not give flexibility to railroads that are working
diligently versus ones that are not.
The Chairman. If a line is not currently handling toxic-by-
inhalation materials or passenger traffic, does the PTC
requirement apply?
Ms. Feinberg. It depends on where in the country we are
talking about, but it is aimed at lines that are handling
hazardous materials and passenger service.
The Chairman. And would the FRA consider continued movement
of non-TIH and non-passenger traffic over such lines after
December 31, 2015 to be in violation of the 2008 statute?
Ms. Feinberg. Yes.
The Chairman. Does the FRA intend to impose fines or
penalties related to non-TIH and non-passenger operation on
such lines after December 31, 2015?
Ms. Feinberg. We will enforce the law as of the deadline on
December 31. So on January 1, we will enforce the deadline in
the law.
The Chairman. How does the FRA define the common carrier
obligations that rail carriers have under existing law?
Well, let me ask it this way. Do you believe the common
carrier requirement is in conflict with the current PTC
deadline?
Ms. Feinberg. Well, I would defer to the STB on that. And I
have read their recent letter, which I think that you have seen
as well, in which they defer to us on safety.
The Chairman. Right.
Ms. Feinberg. But it is a partnership between the two
organizations.
The Chairman. OK.
My time has expired. I will hand it off to the Senator from
Florida, Senator Nelson, for questions.
Senator Nelson. Well, you have heard of the old saying, we
are between the devil and the deep blue sea. So if we don't
extend Positive Train Control--which most everyone at this dais
wants to get Positive Train Control installed as fast as
possible. But, under the law, you have to impose fines. But the
railroads say they can't comply, and, therefore, they will not
carry certain traffic. So what do we do if PTC is not extended?
Ms. Feinberg. Well, sir, we have said that we feel that it
is our obligation to enforce the PTC deadline. And so, on
January 1, if railroads that have not implemented PTC choose to
operate, we will take enforcement actions.
Senator Nelson. You formed a task force on this, and it is
getting information to be used to monitor the progress and
guide enforcement efforts. Tell us about that.
Ms. Feinberg. Yes, sir. We have had a number of FRA staff
members working on PTC for years, but more recently I have
formed within the FRA a task force that is working on PTC
across the board. They are in close touch with railroads, they
are offering technical assistance, they are monitoring testing.
But one of the things they are also doing is collecting data
about PTC implementation, how that implementation is going,
from railroads so that we are tracking that progress regularly.
Senator Nelson. If the Congress extends the deadline for
PTC, what would you recommendation be? How long of an
extension?
Ms. Feinberg. Sir, I don't think it is appropriate for me
to recommend a certain amount of time. I would be deferential
to the Congress on what they believe the right action would be
to take in terms of the deadline.
But we would, as we have in the past, offer as much
technical assistance and our expertise as we possibly can and
try to be helpful to the Congress as they contemplate moving
the deadline.
Senator Nelson. One of the things that we did in the
highway bill was we got the number up to $200 million to help
the commuter railroads install the Positive Train Control. Now,
it would be nice to have PTC installed sooner. I want to thank
the Chairman for this.
So how would you go about the use of this funding?
Ms. Feinberg. Well, we would want to coordinate with this
committee and take guidance from you. But, as I view it, the
$199 million would be used as an offset for CRP--I am sorry,
for the credit risk premium for commuter railroads that are
applying for PTC loans. Or it could be used as a grant program
for those same commuter railroads.
Senator Nelson. Grade-crossing safety, it is a problem all
over the country. Can you talk about your efforts to partner
with local law enforcement and technology companies on this
grade-crossing issue?
Ms. Feinberg. Yes, Senator. Thank you for the question.
Following the Metro-North grade crossing incident, the FRA
launched a grade crossing campaign which would seek to try to
bring some new thinking to this old problem. And one of the
first things we did was partner with law enforcement to ask for
increased enforcement at grade crossings, so ticketing, in an
effort to prevent people from beating the train, if you will.
We have also reached out to tech companies to ask them to
take our grade crossing data, which is the location of more
than 250,000 grade crossings across the country, integrate that
data into their maps so that when passengers or drivers are
actually within a mapping application they would be alerted
that they are approaching a grade crossing.
Senator Nelson. So, back to the pregnant question before
us, do you have a recommendation on what we do on an extension
on PTC?
Ms. Feinberg. I don't have a specific recommendation for a
length of time. I am grateful to this committee and to the
leadership of this committee for being so focused on this
problem. I am worried about the consequences that come on
January 1, and I am grateful for your attention to it.
I do not have a specific amount of time that I would
recommend, but, as I said, we would continue to work with this
committee to offer technical assistance, our expertise and any
assistance that we can to be helpful as you work on this.
Senator Nelson. Thank you.
The Chairman. Thank you, Senator Nelson.
Up next, you get the Missouri double team, Senator Blunt,
followed by Senator McCaskill.
STATEMENT OF HON. ROY BLUNT,
U.S. SENATOR FROM MISSOURI
Senator Blunt. There you go. Well, the Missouri double team
is sometimes pretty tough.
We are glad you are here. Thanks for the work you have
already done on this.
I appreciate the discussion this morning has not been about
who is at fault or whether the Government is at fault, but we
are not going to make this deadline. I think you mentioned, Ms.
Feinberg, that over 20 railroads have told you they would not
operate on January the 1st.
Some of those railroads, also, obviously, commuter traffic
runs over those rails, as well. I think Burlington Northern has
said that their contract with the commuter traffic requires
them to have their rail system in compliance with Federal law.
Is it your view that commuter traffic could not use those
rails, as well? Do you have a view of that? That is what
Burlington Northern thinks. Is that what you think?
Ms. Feinberg. No, no, that is--I mean, that is correct. The
Class Is are right to be also thinking about the commuter
service that functions on their track. And, to be clear, the
commuters are thinking about that, as well.
Senator Blunt. And do you think it is reasonable, these 20
railroads that have told you they might not be able to
function, or won't function, do you think it is reasonable that
they believe that they cannot function if they are not in
compliance with the PTC standard?
Ms. Feinberg. Well, to be clear, they have actually
communicated that to Senator Thune, to Chairman Thune----
Senator Blunt. Right.
Ms. Feinberg.--but they have also copied us on those
communications, as well.
I think it is reasonable for railroads to take a close look
at how and if to operate on a date when they will be operating
in violation of the law. I think that is an appropriate thing
to look at, and, frankly, that is something that we would
expect them to look at regularly.
Senator Blunt. So you think it is reasonable for them to
assert that they cannot or should not operate in knowing
violation of the PTC deadline.
Ms. Feinberg. Each railroad is going to have to make that
decision individually, but I absolutely think it is reasonable
to be contemplating whether or not it is appropriate to operate
that day--beginning that day.
Senator Blunt. And, of course, one of the reasons for this
is the toxic-by-inhalation freight concerns. But, of course, if
that freight, along with lots of other freight, isn't part of
the commerce system, there are major problems in commerce for
water treatment, for plastic, for whatever else those chemicals
go into.
Is anybody doing a study of the economic impact of what
happens if railroads aren't operating on January 1?
Ms. Feinberg. We have not done a study into the economic
impact. I can't speak for the STB. We have not done that
specifically. And our obligation is to think about this in
terms of safety versus economic impact. But I am certainly
concerned about the consequences in terms of congestion and the
safety impacts of increased congestion, as well.
Senator Blunt. And----
Ms. Feinberg. And those products would likely move by
truck. They don't move by rail.
Senator Blunt. And so that creates safety concerns in
another----
Ms. Feinberg. Correct.
Senator Blunt.--not only the traffic, the advanced traffic,
but then you just move that same problem to another place----
Ms. Feinberg. That is right.
Senator Blunt.--that same concern to another place.
In terms of the passenger rail, do you know of any
discussion they are having about whether they think they should
be able to operate on lines that don't meet the standard?
Ms. Feinberg. It is an active conversation that is
happening across the industry. So it is not just the freights;
commuters are absolutely having this conversation. We are in
close touch with them, just like we are with the freights. They
are very anxious and keeping a close eye on this body to see
what happens next.
Senator Blunt. And you have been thoughtful in not giving
any indication of exactly how long an extension would be, but
is it your view that there needs to be some sort of extension
beyond January 1?
Ms. Feinberg. I mean, to echo the Ranking Member, I think
he said between the devil and the deep blue sea. I would say we
are between a rock and a hard place. The deadline is not going
to be met. That is disappointing to me, and I think it has
safety consequences that I am concerned about. The railroads
not operating also has consequences.
And we would want to work very closely with this committee
to try to assist in any way we can, in offering technical
assistance and expertise, as you look at the deadline.
Senator Blunt. Thank you, Chairman.
The Chairman. Senator McCaskill.
STATEMENT OF HON. CLAIRE McCASKILL,
U.S. SENATOR FROM MISSOURI
Senator McCaskill. You are here for us to ask questions for
you to be the boss. So I am going to ask you some tough boss
questions.
GAO has a follow-up that just was issued yesterday on the
PTC implementation, and I am going to read a paragraph.
``Providing FRA with the authority to grant extensions on a
case-by-case basis would provide some needed flexibility and
could also assist FRA in managing its limited staff resources
and help railroads mitigate risks and ensure PTC is implemented
in a safe and reliable manner.''
Do you agree with that?
Ms. Feinberg. We are willing----
Senator McCaskill. That is not my question. I want to know
whether you agree with that statement. ``Providing FRA with the
authority to grant extensions on a case-by-case basis would
provide some needed flexibility and could also assist FRA in
managing its limited staff resources.''
Ms. Feinberg. It would certainly give us flexibility. I am
less worried about the staff resources because we have plans in
place to staff up quickly with contractors, and we have had
those plans in place for quite some time.
I am anxious about the prospect of entering into
negotiations with 40 different railroads on a case-by-case
basis, which would result in a choose-your-own deadline, back
and forth.
Senator McCaskill. OK. So you are not comfortable with a
case-by-case-basis approach.
Ms. Feinberg. I think----
Senator McCaskill. You would rather have a set deadline.
Ms. Feinberg. Well, I just think that we have to be aware
of the consequences of entering into negotiations with 40
different entities.
Senator McCaskill. Yes, and so, well, that is what I am
trying to figure out, Ms. Feinberg, is, you know, which is the
best of bad choices? And you are going to have to make that
decision, potentially.
Ms. Feinberg. Ultimately, I--unfortunately, FRA does not
have the authority to make that decision.
Senator McCaskill. OK. Well, you do have the authority on
this subject. We know that the railroads will not be PTC-
compliant by the end of the year, correct?
Ms. Feinberg. Correct.
Senator McCaskill. No controversy there, no question.
Ms. Feinberg. Most of them will not. A few will make it.
Correct.
Senator McCaskill. OK. A few will be, but most will not. We
have heard that they are not going to operate. But, really,
what they want to know is what you are going to do. So if you
know they are not going to be compliant at the end of the year,
can you tell this committee what you are going to do on January
1?
You gave us a memo that gave you all the enforcement
options.
Ms. Feinberg. Right.
Senator McCaskill. Why is it that you will not say--these
railroads are trying to decide what to do if Congress, for some
inexplicable reason, will not face the reality that an
extension is necessary. They have to make a tough decision, and
so do you. The sooner you make your decision, the more informed
their decision will be.
When will you make the decision on what you are going to do
when they are not compliant if Congress fails to act?
Ms. Feinberg. I actually feel like we have been pretty
clear on what we will do on January 1 if they are not
compliant. We----
Senator McCaskill. And what is that?
Ms. Feinberg. We will enforce--if the December 31 deadline
remains in place and railroads choose to operate in violation
of the law, we will take enforcement actions on January 1, or
on the day that they operate. We will issue fines, and we will
likely impose additional requirements on those railroads that
will raise the bar on safety if they choose to operate without
PTC implemented.
Senator McCaskill. Have you discussed what the fines will
be? Because you know this is going to happen.
I mean, what I am trying to figure out is, we are going to
have a huge mess if nobody operates on January 1. I mean, I
don't know any other more artful way to put it other than ``a
huge mess.'' It is going to be dangerous. It is going to be
very damaging to our economy. It is going to cost jobs. It is
going to be exhibit A of why Congress is so unpopular, because
we can't manage to do something as simple as recognize the
obvious here.
So we know what the situation is going to be. Why can't you
be more specific so the railroads can make an analysis about
the cost-benefit of the penalties they might incur versus
operating?
Ms. Feinberg. So let me try to explain it this way. The
railroads continue to make progress every day. So we are
currently about 3 and a half months out from the deadline. Some
railroads make progress every day. They are equipping new
locomotives, they are testing PTC, they are getting additional
equipment, they are obtaining spectrum. And so, to give a
railroad a specific amount that we will fine them today may
well have nothing to do with where they are 3 and a half months
from now.
What we have said is we believe the fines will be
significant. Each violation has a maximum fine of $25,000 per
day, but if you are choosing to operate past the date of
January 1st without having implemented PTC, my guess is those
would be multiple violations, dependent on locomotives and
segments that you are operating on.
So what we have said is we believe those fines will be very
significant and that we will, on top of that, impose additional
requirements on the railroad, whether that is additional crew
members, requiring those additional crew members to
communicate, potential speed restrictions.
So we have been as clear as we can be. I believe the
railroads do deserve transparency and clarity on what will
happen on January 1st, but we have tried to be pretty clear
about that.
Senator McCaskill. I think you think that if you tell them
what it is going to be that somehow that will slow them down,
and I don't think that is true. I think you do need to be more
specific than ``significant fines.''
I think also what I would really appreciate is analysis of
which is going to be more dangerous, them not operating on
January 1 or continuing to operate without fully implementing
PTC. Because I think there is a real question, which is going
to be more dangerous, and it sure would be a shame if that
analysis hadn't been made transparent before that date.
Ms. Feinberg. We----
Senator McCaskill. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator McCaskill, Senator Blunt.
And let me just point out, too, I think the administration
did put out an extension proposal in their GROW AMERICA Act.
And the other point I want to make--this is an important
one. Everybody is focused on January 1 here, which is of course
the deadline, but the effects of this start being felt sooner
than that, particularly with the freight railroads. I mean, we
are talking about probably a November timeframe. So the sense
of urgency attached to doing something on this is very
apparent, and I think we have to recognize that we don't have a
lot of time to work with.
And the senator from Missouri is exactly right. I mean, if
you look at what could happen, the potential effect, this is a
huge disaster in the making, which as I said before is totally
avoidable.
Senator Fischer is up next.
STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM NEBRASKA
Senator Fischer. Thank you, Mr. Chairman.
I would like to follow up on the fines that you were
talking about and the penalties. You mentioned that they are
going to be significant. And before that, you said that the
railroads are making progress every day. But we all know that
they are not going to get there. I mean, they have been very
open about that. They have given us quite a bit of information
on the problems that we are going to be seeing all across this
country. And as Senator McCaskill said, the tremendous negative
impact we are going to see on our country's economy and the
safety of our citizens by a shutdown, basically, from our
railroads.
When we are looking at these significant fines, what system
have you established that will determine what the fines are?
Does that offer any clarity to the railroads or to us on this
committee? Do you have a system in place?
Ms. Feinberg. We do have a system in place. We have a
longstanding system for enforcement against railroads which has
been in place for many years.
But then, more specifically, following the 2008
legislation, we finalized a rulemaking in 2010 that included
all of the ways that we would enforce against PTC. So we can
certainly get it to you. It is several pages, and it basically
details the various enforcement actions that we would take.
Senator Fischer. What are a couple of the specific actions
that would happen?
Ms. Feinberg. So there are many. They involve failure to
equip a locomotive, failure----
Senator Fischer. But what is the penalty?
Ms. Feinberg. They start at--I think for that one it is
$15,000, but it depends on if it is a willful violation. So,
much like any other enforcement agency, there are basic
violations and then there are willful violations. There----
Senator Fischer. Oh, OK. Well, that then leads me to the
idea that there are companies that are working in a good faith
effort and they have invested really billions of dollars in
trying to meet these deadlines that they are not able to meet.
Are you going to be looking at those companies differently? I
think earlier you said you wouldn't.
Ms. Feinberg. I think that may have been a reference
between freights and commuters. But I believe, if I understand
your question, we certainly do not want to disincentivize
progress, and we do not want to punish railroads that are
making progress and working hard each day to reach the deadline
and to make progress on PTC implementation. It is also
important for the enforcement mechanisms to be fair.
Senator Fischer. Would you be looking--a follow-up with
Senator McCaskill's question again then. Would you be looking--
with that comment, I would think you would look at treating
companies differently and making accommodations for them
individually and not as a group.
Ms. Feinberg. So let me give an example. Some railroads
have been unable to obtain the spectrum that they needed in
order to implement PTC. My point is that, as we look at
enforcement actions, we want to prioritize both the ones that
have the largest impact on safety but also the ones that
railroads actually had control over versus something that was
out of their control.
Senator Fischer. OK.
I would like to switch gears here and talk about the ECP
braking requirements. And that would also cost billions of
dollars. But two Class I railroads, Union Pacific and Norfolk
Southern, they have tried those systems; they have abandoned
them. They didn't feel that there was a substantial benefit to
safety.
When you look at the crude by rail and the rulemaking
there, it is my understanding that the FRA did not conduct a
real-world study. Is that right?
Ms. Feinberg. Well, we used modeling for the ECP braking
for the cost-benefit analysis--for the impact of the ECP
brakes, as we do in most rulemakings. I mean, you are correct
that those braking systems are in place on some railroads, that
they are actually being used each day, but to actually take one
train equipped with ECP and one train not equipped and then
involve them in an incident, even in a testing, is not
something that we did.
Senator Fischer. So no hard science was really used at all
in determining those regulations?
Ms. Feinberg. Well, I do think there was hard science
involved, and there was math involved, as well, but we did not
actually go out and involve trains in a real world incident.
Senator Fischer. I understand that math is used in
modeling, but wouldn't you think that hard science would be
more helpful, especially when you had two Class I railroads
that did have information on it?
Ms. Feinberg. Well, we would be more than happy to do
testing like that. We have said to this committee that, while
funding is important for testing like that, we are always
anxious to collect more data, particularly on things like
braking systems.
You know, I understand that the railroads are concerned
about the cost of implementing this braking system. I would
also note that prior to the rule being finalized, some of them
were actually advertising that they were using it.
So I am aware that they are unhappy with the cost, and we
always want to collect more data about braking systems, but I
also am--you know, we are very focused on whether the braking
system works, as opposed to logistics and cost.
Senator Fischer. I would say that all of us up here, and
including the railroads who are intimately involved in this,
are concerned a lot more than just about the cost. We are
concerned if it works. We are concerned about the safety. We
want to make sure that investments have a return that will keep
our population, our citizens safe. So to imply that this is all
based on cost I think is a comment that did not need to be
made.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Fischer.
And we have up next, if he is ready, Senator Manchin. You
want to--oh, OK. We will go to Senator Peters next.
STATEMENT OF HON. GARY PETERS,
U.S. SENATOR FROM MICHIGAN
Senator Peters. Thank you, Mr. Chairman.
Ms. Feinberg, thank you for being willing to take on this
job. Obviously, it is a very big job, and I know you are
putting a great deal of good faith effort in, working hard. And
appreciate your efforts, and appreciate the opportunity to meet
earlier to talk about some issues.
And before I get into the Positive Train Control, and I
have some questions related to that, I would like to first
mention a personal incident that I had with a good friend in an
accident that you mentioned and some of the follow-up related
to that accident.
You mentioned in your opening testimony the Amtrak accident
outside of Philadelphia, 188. And I had some personal contact
with that, in the fact that I had some very good friends of
mine who lost their daughter in that very tragic accident. And
their first contact with Amtrak was a very impersonal, cold
call from a claims adjuster of some sort who said that they
would be willing to pay reasonable funeral costs, to let them
know that that was Amtrak's response, which did not sit well
with the family, as you can imagine, through a very traumatic
time.
Now, Amtrak is under statutory requirements to have a
family assistance plan. And I have inserted an amendment in the
Railroad Reform, Enhancement, and Efficiency Act, which is part
of the comprehensive transportation bill which hopefully will
pass. I know my colleagues seem to be concerned that that is
going to pass, that we are going to be dealing with some issues
with Positive Train Control and others. But in that amendment
that is part of that, I require your agency, NHTSA, and others,
NTSB, to take a hard look at the adequacy of Amtrak's family
assistance plans and determine whether or not they were
followed.
But I would like to hear from you if anyone else at FRA, as
the rail safety regulators, have looked into Amtrak's response
to both the victims of the derailment and their families to
determine whether or not they have complied with some of their
statutory requirements and, kind of, your assessment of it.
Ms. Feinberg. And that will certainly all be a part of the
investigation into the incident. As I know that you know,
Senator, the NTSB is the lead investigative agency on that
accident, but the FRA also plays a role in that, as well. The
NTSB has specific guidelines about family assistance planning,
and I know that they will take a very close look at that. And
we will, as well.
Senator Peters. And you will, as well. You have not had an
opportunity to do that?
Ms. Feinberg. In my role as a Member of the Amtrak Board,
we have had some conversations about the accident and the
response. I have reiterated the importance that I put on making
sure that families are communicated to quickly and
appropriately. But it will ultimately be a part of the
investigation the NTSB leads, and I can't get ahead of them.
Senator Peters. Well, especially as a member of the Amtrak
board, I hope you take a strong interest in this and understand
the seriousness of it. And I will look forward to working with
you in the months and years ahead, as we take a look at that
and hopefully make improvements to it in the future----
Ms. Feinberg. Absolutely.
Senator Peters.--so that things like that do not happen
again.
Ms. Feinberg. Absolutely.
Senator Peters. And now to the Positive Train Control,
Senator McCaskill mentioned the GAO report that came out
yesterday. And if we are able to pass the comprehensive highway
transportation bill, or if we do a separate bill that allows us
to move forward and push back some of the time requirements for
PTC, you will have to oversee some of the implementation of
their work and their plans in the future.
But in the GAO report, they noted that there were
deficiencies in the reports that talked about how they were
going to meet some of those deadlines, some of their
milestones, how they were going to reach those milestones. In
fact, it says, ``They lacked any meaningful detail and could
not give the FRA a clear understanding over railroads' PTC
implementation progress.''
So if the reports that they are providing you are
deficient, what do you plan to do to make these reports more
substantive and ones that you can actually work on? Do you
agree with the GAO's assessment? And how do you plan to fix it?
Ms. Feinberg. Well, we have agreed with the GAO's
recommendations and agree that they are important
recommendations to implement. Most of them were being
integrated into FRA's approach to PTC implementation prior to
the GAO report, but we take their recommendations seriously and
will take action on them.
The GAO report registered some concerns about the amount of
data that we were collecting from the railroads and the kind of
data that we were collecting from the railroads. I believe that
over the last several months we have ramped up our efforts on
that front, which are not necessarily reflected in the GAO
report, but they give us a much better sense of how railroads
are doing and the progress that they are making.
On their safety plans which they owe to us, on their plans
for implementing PTC, we have tried to give significant
guidance to the railroads on what we are looking for and how we
can go back and forth with them to make sure that their plans
for implementation are as safe and efficient as possible.
Senator Peters. Great. Thank you.
Ms. Feinberg. Thank you.
The Chairman. Senator Manchin?
Thank you, Senator Peters.
Senator Manchin. Thank you, Mr. Chairman. Appreciate it
very much.
And I hope they have been kind to you since I have been
gone.
Anyway, Ms. Feinberg, everything that I have read about the
Amtrak train, the 188 derailment earlier this year, it sounds
to me that the engineer lost situational awareness. As a pilot,
you know, you have to be aware of where you are at all times
and be able to report that, and they are following you.
I went over and was able to go over to look at some of the
newest Amtrak locomotives over at Amtrak. I did the Acela, and
I did the Northeast Regional, just to get a better
understanding of what was happening in the cockpit. I am going
to call the engine a cockpit, OK? I was amazed to find out that
we are still using technology that is 50, 80, 100 years old. In
our cars, we have more information in our front seat of our
driver's car than we do in an engine.
I just kept asking the question over and over, can't we at
least--because they were telling me how costly it was and on
and on and how much time it would take. I said, just to have
situational awareness would be something, knowing where you are
at. And that is pretty easy, pretty simple technology.
Did you find that to be--I mean, I don't know where the
pushback--I don't think anybody, I don't care on what side of
the fence people may be, whether it is the railroad companies
themselves and whether it is people, passengers, we all want it
to be safe. Everybody does. But if we are not moving toward a
new technology, and our whole country depends on it, why would
we not be using some of the easiest, latest, greatest advanced
technologies for train traffic?
Ms. Feinberg. Well, we could not be more supportive of
making sure that railroads are integrating technology that will
improve safety and save lives. I mean, that starts with PTC,
obviously, but you can take that all the way to our
encouragement of tech companies to integrate our grade crossing
data into tech features so that we are communicating both with,
you know, engineers but also with drivers who are just
approaching a grade crossing. So incredible----
Senator Manchin. Are they looking at different technology?
I mean, I don't know, I was asking the questions from the--and
they were very kind over there to show me everything and go
through the whole scenario, but I did not get the feeling they
are moving in that direction. We call it a glass panel, a glass
cockpit, if you will.
What I saw was basically pretty antiquated--a light system
and sound system, certain areas, and this and that. And it just
didn't make any sense. I mean, I was flabbergasted by it.
Ms. Feinberg. Well, there is also a beauty to the
simplicity of a locomotive, or of a cab. But I think probably
the most important technology that railroads can integrate at
this moment is PTC, which is incredibly complicated, well worth
the complication, I think, but----
Senator Manchin. You are working through the deadlines, you
are working with the industry and making sure that we are doing
everything we can to expedite this along? But you understand
the time constraints there, basically, and the intricacies of
this.
Ms. Feinberg. Yes, sir. And we have tried to do as much as
we can to be helpful as railroads are attempting to implement
this technology. So we have offered technical assistance. We
have built a testbed facility at Pueblo, Colorado, for testing
purposes. We have hired additional staff. We have tried to
proactively help on safety plans.
And we will continue to do all of that because it is
obviously in our interest to get PTC implemented as safely and
efficiently as possible.
Senator Manchin. The other thing, being a former Governor,
I was acutely aware of, you know, making sure that anything and
everything that happens in the state of West Virginia and every
other Governor in their state does so with the utmost concern
about the safety of the citizens.
The thing that I used to get complaints, years ago when I
was Governor, is that basically our first responders didn't
know what was traveling through their state, or they didn't
know until after the fact. And God forbid an accident would
happen. And I sit on Mount Carbon. You know pretty well that
area. If it had happened just a mile or two down the track, it
would have wiped out Montgomery, the whole town. Hard to tell
how many people would have lost their lives, what we saw happen
just outside the town. And those are the things I am concerned
about.
Have you all been able to better coordinate with the first
responders and with the state coordinators of first responders?
Ms. Feinberg. We have. I mean, I have said to the railroads
that I think notifications of first responders should be a
priority. We have an emergency order that went into place in
May 2014; that remains in place.
We have reiterated its importance with the railroads. I
recently wrote them a letter reminding them that the
expectation is that they are to be sharing that information
with first responders so that those individuals have as much
information as possible.
Senator Manchin. Are you getting any pushback on that
whatsoever? Are the states saying we still don't have the info
we need in time enough to make sure that they have the proper
equipment and people available in case, God forbid, something
would happen?
Ms. Feinberg. It depends on the state. Some states have
said they want more, and we are asking the railroads to please
work with them to give----
Senator Manchin. Good.
Ms. Feinberg.--them all of the information they could
possibly need. Some are satisfied. And then whether that
information is made public frequently depends on the state's--
--
Senator Manchin. And, finally, I think, have you put a
working group together, working with the railroad executives
and engineers and the people on the front line and all the
people that are on the rails, trying to get input from them to
try to better this or do the things that basically are
acceptable and can be done?
Ms. Feinberg. Yes, sir. We have a task force within FRA
that is seeking to do that.
Senator Manchin. OK.
Thank you. My time has expired.
Ms. Feinberg. Thank you.
The Chairman. Thank you, Senator Manchin.
I have Senator Wicker, followed by Senator Klobuchar and
Senator Blumenthal. I am told we have a vote at 11. If we can
get everybody in before we have to bust over there, that would
probably be a good thing. And I am sure Ms. Feinberg would
appreciate that, too.
Senator Wicker?
STATEMENT OF HON. ROGER F. WICKER,
U.S. SENATOR FROM MISSISSIPPI
Senator Wicker. Thank you, Ms. Feinberg.
I think we have been kind today, but I do think the
Committee, on both sides of the aisle, the members are a little
confused and frustrated by the lack of a specific proposal
concerning the extension.
Now, the Chairman came in and clarified that apparently the
FRA still stands by the GROW AMERICA recommendation concerning
extensions on a case-by-case basis. Is that your position?
Ms. Feinberg. What we asked for in the GROW AMERICA Act was
not a blanket extension but flexibility to work with railroads
so that we could prioritize where PTC would be turned on. So
the statute is very black and white and offers literally really
no wiggle room. And so what we asked for in the GROW AMERICA
Act was flexibility to work with railroads post-January 1 to
turn on portions of PTC before waiting for an entire system.
Senator Wicker. Well, you know, if I were a railroad and
struggling to meet this deadline, I would find that so
uncertain that I don't know if I could develop a business plan.
It seems to me that what that would do is leave it up entirely
to the discretion of the FRA, and the people trying to get this
thing done in good faith would be so frustrated that they
didn't where they stood.
You know, it seems to me, Ms. Feinberg, that we are going
to have to extend this for a period of time, just to give
people out there in the country the ability to know where they
stand.
And so, to me, it would be helpful--I think we can all
acknowledge that a GROW AMERICA Act is not going to be passed
by the House and Senate, passed out of Committees, signed by
the President of the United States before the end of this year.
And so I would appreciate you coming back to us and the
Administration coming back to us about what vehicle we might
have.
Do we need to put it on the CR? If we do, we need to move
it pretty quick. And I understand the CR, the folks designing
that are intending for it to be very clean and not have a lot
of new provisions. Can we wait until the omnibus at the end of
the year? Because it looks like that is where we are headed. Is
the reauthorization of the transportation bill an appropriate
way?
But I would appreciate a specific recommendation as to the
length of time that might be appropriate. Is it 6 months? Is it
a year? Is it 2 years?
You deal with this every day; we are trying to deal with
100 things. So I really would ask you to get back to us and
provide some leadership there in terms of letting us know how
industry can get this done.
And I realize we have spent a lot of time on this topic, so
let me switch. Let me be provincial then and ask you about Gulf
Coast service.
You know, the House and Senate, we haven't quite gotten a
bill to the President's desk yet, but I think--would you
acknowledge that we have made it clear in legislation that is
Federal intent to have a working group formed to restore the
Gulf Coast passenger service that we lost after Hurricane
Katrina? Would you agree that that Congressional intent is
becoming clear based on the legislation so far?
Ms. Feinberg. Yes, sir.
Senator Wicker. And are you aware that a working group is
proposed to develop and answer the question of how we implement
this?
Ms. Feinberg. Yes, sir.
Senator Wicker. And will you acknowledge that FRA doesn't
have to wait until the legislation is actually enacted to form
such a working group?
Ms. Feinberg. Yes, sir. And I have met with your staff on
this. I am supportive of Gulf shore service being restored. We
have had a good conversation about it, and I will actually be
down there next month.
I have met with the Southern Rail Commission; they are
lovely and excellent at----
Senator Wicker. Where is ``down there''?
Ms. Feinberg. I am sorry. I will be in Louisiana and
Mississippi.
Senator Wicker. Oh, good. Well, wonderful. You know,
Governor Bryant, Senator Cochran, and I would like to host you
on a ride along that proposed route with the other members of
the delegation, with Amtrak President Boardman and CSX CEO Ward
and others to assess the line's condition. So are you willing
to join us----
Ms. Feinberg. Absolutely.
Senator Wicker.--on that ride if we can work out a
convenient date?
Ms. Feinberg. Absolutely. Look forward to it.
Senator Wicker. Wonderful. Thank you. And I look forward to
working with you on that and wish you the best. Thank you for
your service.
Ms. Feinberg. Thank you.
Senator Wicker [presiding]. And Senator Klobuchar, I
believe, is next.
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Right. Thank you very much, Senator
Wicker.
And thank you, Ms. Feinberg. Congratulations. Any friend of
Senator Manchin is a friend of ours.
First, I want to just talk to you about the blocked-
crossing issues. As I travel across Minnesota, I hear from
people all over the state who have spent an excessive amount of
time, sometimes hours, stuck waiting at a blocked rail
crossing. Blocked rail crossings not only inconvenience drivers
but they delay emergency vehicles.
In July, I was in Ranier, Minnesota, which is on the
Canadian border. It is a major crossing but a very small town.
Their rail-crossing blocking is 6 to 8 hours a day in the town.
So in the DRIVE Act, we actually put a provision in there
to direct the secretary of transportation to develop highway-
rail-crossing action plans, including tools and data, safety
risks, other things. And that is the amendment that is in
there.
Acting Administrator Feinberg, as this process moves
forward, what steps can the FRA take to minimize blocked rail
crossings? And do you think you have the best practices in
place?
Ms. Feinberg. Thank you for the question.
We are also very concerned about blocked crossings. We do
not actually have regulations in place that govern how long a
train can block a crossing, but we frequently hear from
communities in Minnesota and elsewhere where you have folks who
are waiting for some time while a train is blocking a crossing.
And it can sometimes lead to safety concerns, as well, when you
have first responders who are stuck on one side of a crossing
and can't get to the other side of a crossing.
So we frequently work with railroads individually to
address specific problems. We have also suggested that we do a
study so that we can understand the impact of blocked
crossings. But we are also worried about this and attempting to
resolve it ourselves.
Senator Klobuchar. And some of this would be dictated by
this bill once--I know we are going to pass it eventually here
this year.
Also, I hear from communities that they don't have the
capacity to prepare for or respond to a derailment or a
hazardous material spill. Firefighters and first responders in
some cases simply don't have the resources to purchase the
equipment.
What is the FRA doing to ensure local units of government
have these resources to be able to properly prepare? And do you
need any additional authority for that?
Ms. Feinberg. I don't know that we need additional
authority. We have worked closely with our sister agency,
Pipelines and Hazardous Materials, on programs that will assist
with training first responders, making sure that they have the
information that they need, the resources they need. There are
trainings that frequently happen at our training and testing
facility in Pueblo, Colorado, which is an excellent facility
for training.
So we will continue to look for resources where we can
assist first responders with that and appreciate your focus on
it, as well.
Senator Klobuchar. And then one last question. I am going
to end short here and give you the rest in writing so my
colleagues can ask questions before the vote.
Would you support leaders from local government and first
responders serving on the Railroad Safety Advisory Committee?
That isn't happening now, and we think that would be helpful.
Ms. Feinberg. Certainly. I will say that they can certainly
present to the RSAC at any point. They can come and reach out
to us, and we can make sure that they have a role in RSAC
meetings and process. And we are happy to do that and follow up
and make sure that they feel like they are welcome and listened
to at RSAC meetings.
Senator Klobuchar. OK. We would like them on the board, and
so we can discuss that later.
And I will put the rest of my questions in writing and turn
it over to Senator Blumenthal.
Thank you.
Ms. Feinberg. Thank you.
Senator Wicker. Well, actually, Senator Daines is next.
Senator Klobuchar. Oh, OK. There you are.
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you. Appreciate that.
Ms. Feinberg, congratulations on your nomination. It is
nice to see you here again.
As you know, Montana is home to nearly 3,200 miles of
railroad track that moves our ag commodities, our record
amounts of crude oil, coal, and other manufactured products
across our rail system every day. In fact, we export the
majority of our energy and ag production. Eighty percent of our
wheat harvest goes to Asia, and most of that leaves the state
via rail.
Last summer, there were challenges to rail capacity and
delays in shipping some of our goods. Our phones were ringing a
lot; a lot of concerns about this. This year, I know that
Burlington Northern Santa Fe has made significant investments
in Montana to increase capacity, enhance safety, and we expect
smooth and efficient shipments of this year's harvest as well
as other commodities.
Additionally, we have the famous Amtrak Empire Builder that
runs along Montana's Hi-Line, providing much-needed
transportation and connectivity for our rural communities. In
fact, last year, nearly 120,000 people boarded and alighted
Amtrak trains in Montana.
I recall as a kid hearing stories about how my great-
grandparents would take passenger rail from Shelby, the Empire
Builder. That is how my family got back and forth when they
first, in fact, came out to Montana a century ago.
Needless to say, it is imperative to Montana that we
continue to move these passengers and commodities in a safe and
efficient manner. So my question is going to be probably the
same horse we have been beating here during this hearing, which
is regarding PTC.
We all saw in the report released yesterday that the GAO
has recommended again that Congress extend the December 31,
2015, PTC deadline.
The largest railroad in my home state, in Montana, is BNSF.
They have been working diligently. They have invested $1.5
billion, and, in fact, another $500 million investment is
planned, to implement PTC across the nation, including on the
nearly 2,000 miles of track in Montana.
As we all know, this deadline is approaching. The Senate
highway bill contains an extension on a case-by-case basis. And
I think we must continue to move passengers and commodities in
a safe and efficient manner. Without these rail connections, we
are in big trouble in Montana.
So my question: as Administrator, what would you do in the
immediate future to ensure our railroads do not come to a
grinding halt on January 1, 2016, beyond the threat of fines?
Ms. Feinberg. Well, Senator, it is good to see you again. I
cannot give the railroads individual legal advice. I don't
think that is an appropriate role for the FRA Administrator. We
have said as clearly as we can possibly say that we will
enforce the deadline.
I know that many railroads are considering not operating
starting on January 1 because they will not be in compliance
with the PTC law, but----
Senator Daines. Would you have your cell phone and we could
forward the calls from Montana to you so you could take them?
Ms. Feinberg. Oh, sir, I am getting the calls. Yes, yes.
[Laughter.]
Senator Daines. Great. Yes. All right.
Ms. Feinberg. But I am happy to take yours, as well, yes.
Senator Daines. I am talking about from the people of
Montana. Because the phones will be ringing; this will be a
crisis.
I am sorry, I interrupted you. Go ahead.
Ms. Feinberg. I am also worried about the crisis that could
ensue on January 1, as well. We have tried to be as clear as we
can possibly be. We will continue to try to assist this
committee and the Congress in any way that we can as you
contemplate the possible extension of the deadline, and we will
work with you in any way that we possibly can.
Senator Daines. Yes. So we are down to about 100 days----
Ms. Feinberg. Yes.
Senator Daines.--plus or minus. There is something called
Thanksgiving in the way. There is the Christmas holidays. So
the time is of the essence. And given everything else going on
in this town that tends to be crisis-driven, it would sure be
nice to avoid yet another crisis-driven event.
Ms. Feinberg. Sir, I completely agree. I do not have the
authority to extend the deadline. And the Secretary of
Transportation does not. And we will work with this committee
in any way that we can but are not able to do it ourselves.
Senator Daines. In your testimony, you mentioned there is a
$1 billion loan from FRA to New York's transit authority to
help implement safety measures.
Often, the focus of passenger rail is on the Northeast
Corridor, and I understand the reason why, because of the dense
populations. But it sometimes perpetuates this urban-rural
divide that we see across our country.
As Administrator, what efforts would FRA take to ensure
that passenger rail service is not diminished in rural America,
places like Montana? What loans are being made available to
passenger rail in these rural areas?
Ms. Feinberg. Well, the RRIF program is certainly available
and frequently, sort of, gets the most interest from short
lines, which tend to be functioning in these rural areas.
As a West Virginian, as someone from rural America, I can
tell you that I am a strong supporter of the importance of
passenger service between rural areas. We are working closely
with Amtrak all the time.
Look, the Northeast Corridor is important. It is 50 million
people, it is $100 million a day in economic impact, so it gets
a lot of attention. But it in no way takes all of our
attention, and we are laser-focused on the state routes as
well.
Senator Daines. OK. Thanks, Ms. Feinberg.
Ms. Feinberg. Thank you.
The Chairman [presiding]. Thank you, Senator Daines.
And we are still waiting for passenger rail to come to
South Dakota. So you have it in Montana. Wyoming and South
Dakota I think are the only 2 of the 48 lower that don't have
it.
Senator Blumenthal is up, then Senator Cantwell. And a vote
has just been called, so we have----
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. I will be quick, Mr. Chairman. My main
reason for speaking is to say how fervently I support passenger
rail in South Dakota.
[Laughter.]
Ms. Feinberg. I agree.
Senator Blumenthal. First of all, Ms. Feinberg, I want to
thank you for the breath of fresh air that you have already
brought to the FRA. Your diligence and determination have made
a significant difference already in the enforcement and the
vigilance and vigor of oversight by an agency that has been
asleep at the switch for much too long. There are still 64
recommendations, I believe, from the NTSB that have not been
closed by your agency, but you have made a lot of progress over
a short period of time.
And I hope that you will continue to focus not only on
Positive Train Control but on very significant other rail
safety issues: close-call reporting, redundant signal
protection, commuter rail inspection practices, cameras, speed
restrictions, fatigue, and so many other issues. I think your
agency, obviously, can focus on more than one issue at once,
and these other challenges are as important as Positive Train
Control and a lot less expensive.
Ms. Feinberg. That is right.
Senator Blumenthal. So I hope that you will continue this
effort, because rail safety in the United States is sorely
lacking. And there will continue to be catastrophes, often with
fatal results and tremendous costs, if the nation fails to do
better. And you are at the tip of the spear so far as rail
safety is concerned, so I hope you will continue your efforts
in that regard.
There is a vast difference in different kinds of extensions
of PTC. I strongly support the railroad-by-railroad, year-by-
year, vigilant oversight approach, which I believe was embodied
in the GROW AMERICA Act, as opposed to the unlimited,
indeterminate, open-ended approach which is currently embodied
in the DRIVE Act. And I will oppose that kind of extension if
it is incorporated in any sort of continuing resolution or a
short-term fix. I believe that approach is simply an invitation
to disaster.
And I know that you have walked a fine line in your
testimony today in a very understandable effort to be
accommodating to the different views that are on this
committee, but I would like a commitment from you that you will
vigorously enforce whatever PTC extension is adopted, if one is
adopted, by this committee and Congress.
Ms. Feinberg. Absolutely. We intend to vigorously enforce
the deadline that is in front of us now, and should it be
moved, we will vigorously enforce that one.
Senator Blumenthal. And I take it you would favor the more
limited and year-by-year, case-by-case approach embodied in the
GROW AMERICA Act. That has been the Administration's policy,
has it not?
Ms. Feinberg. Well, the GROW AMERICA Act--our purpose in
the GROW AMERICA Act was to ask for flexibility for railroads
that had made progress and where we were trying to prioritize
PTC implementation in certain places. Certainly we are
supportive of getting PTC implemented as safely and as
efficiently as humanly possible.
Senator Blumenthal. I want to focus in the short time I
have remaining on the need for greater oversight on the
Hartford Line.
I want to thank you and Secretary Foxx for hosting a
meeting, including myself and the Connecticut delegation and
our Governor. I would like you to commit, as you did in the
meeting, that you will ensure that Amtrak manages this project
more ably and efficiently.
Ms. Feinberg. You have my commitment that we will remain
very vigilant over that project. It is one of the most
important projects in the country. And as we said in the
meeting, we are lucky to have good partners in Connecticut that
are actually prioritizing this kind of work. And so we will
remain very focused on it.
Senator Blumenthal. And there really is an opportunity and
obligation for more collaboration and cooperation here. The
contention and disagreements that have occurred really are
regrettable and ultimately will contribute to delay and cost
overruns of this line; would you agree?
Ms. Feinberg. Yes, sir.
Senator Blumenthal. Thank you very much.
Mr. Chairman, thanks for the opportunity.
The Chairman. Thank you, Senator Blumenthal.
Senator Cantwell?
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman.
Ms. Feinberg, we have had a chance to talk many times about
railroad issues and particularly as the Northwest experiences
more and more train traffic.
Do you believe that oil volatility is an issue that needs
to be addressed and that the DOT, working with DOE, should
resolve this issue by doing the amount of testing required to
say what vapor pressure really should be on trains?
Ms. Feinberg. I certainly think that it will be helpful to
determine what role volatility plays.
As you know, the Department of Energy has partnered with
our sister agency, PHMSA, and with us to do a study of the
Bakken crude, which is what I think you are referring to, to
determine the volatility and what impact that volatility has,
so does it matter and how much, which will guide a lot of our
thinking and be helpful.
Senator Cantwell. I know that it is astounding to me that
neither FRA or PHMSA thinks that they have the ability to
regulate this vapor pressure, which we do in other areas, that
somebody is waiting for a catastrophic accident to then say we
should regulate this.
But are you concerned that these vapor pressure readings
are as much as 18.5 pounds per square inch when, in reality, a
lot of people have concerns above 10?
So we are not only seeing North Dakota saying, well, let's
set a standard at 13.7, which I have a concern about, but that
we are finding that they are not even meeting that, that there
is no regulation and oversight whether the train traffic is
actually meeting that standard. In fact, some people are
finding much higher vapor pressures, which I think volatility
comes into play.
Ms. Feinberg. It is hard for me to comment on what PHMSA's
authority is. Our authority is clearly the vehicle that that
product is traveling in when it is on rail, so assisting PHMSA
with the tank car but also the way the train is operated.
But I have been a loud proponent of asking the energy
industry to play a role in assisting us with the safety of
transporting crude oil across the country. I think it is
important for the rail industry to be accountable, but I have
been very vocal about my interest in having the energy industry
have some skin in the game as well.
Senator Cantwell. The energy industry, meaning?
Ms. Feinberg. Meaning the shippers.
Senator Cantwell. Do you think the Federal Government needs
to resolve this issue and weigh in, whatever agency it is,
whoever has the authority?
I mean, I don't think the general public cares, like, what
we are all doing back here as it relates to this agency and
this doctrine and this regulation and, oh, it is falling
through a loophole. People want to know whether volatility is
going to be addressed or not. And you think the administration
should address volatility?
Ms. Feinberg. I think if the studies that are being done by
the Department of Energy suggest that we need to address
volatility before it is placed into transport, we should do
that. We should absolutely do that.
Senator Cantwell. Thank you.
Thank you very much.
The Chairman. Thank you, Senator Cantwell.
I just want to point out for the record that the GROW
AMERICA Act had an open-ended extension. There wasn't any
deadline in the GROW AMERICA Act. The DRIVE Act, which passed
the Senate here a few weeks ago, has a 3-year deadline, through
2018, for installation, and then of course certification is
dependent upon working with the DOT.
And, in addition, the DRIVE Act also included a number of
other safety-related measures, including requiring inward-
facing cameras on all passenger railroads, requiring speed-
limit action plans to address automatic train control
modifications, crew communication, other speed enforcement
issues, improving the safety of the rail transport of hazardous
materials with real-time information for first responders and
comprehensive oil spill response plans, a requirement for
grade-crossing action plans to facilitate and improve state
grade-crossing safety efforts. And it included a number of
other safety issues, such as signage alerters and track
inspections.
So the DRIVE Act does have a number of safety provisions in
there in addition to the PTC extension.
So, Ms. Feinberg, thank you for appearing today.
And we will keep the hearing record open for 2 weeks,
during which time senators are asked to submit any questions
for the record. Upon receipt, you would be requested to submit
the written answers to the Committee as quickly as possible.
And, as you can tell, today, obviously, a lot of focus on
PTC. We have a big problem. You are coming in at a very
important and critical time to try and help solve what most of
us, I think, recognize is going to be a major, major crisis if
we don't get some fairly quick action here.
And your role is going to be important and the
Administration's role is going to be important in trying to
build the necessary bipartisan coalition that it will take to
pass legislation that gets us to where we need to go.
So thank you for your time today and for your willingness
to serve.
And we will, with that, adjourn the hearing.
Ms. Feinberg. Thank you.
[Whereupon, at 11:20 a.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. John Thune to
Sarah E. Feinberg
Question 1. Your resume reflects substantial communications and
press relations experience, including at the White House and at
Facebook, but it doesn't appear to include specific expertise regarding
railroad safety before your current assignment. What do you believe you
bring to the job, and how will you address concerns about a possible
lack of subject-matter expertise should you be confirmed?
Answer. As I outlined in my hearing testimony, it is an honor to
have been nominated by President Obama to serve as the Administrator
for the Federal Railroad Administration (FRA) and to have earned the
confidence of Secretary Foxx. It is a great responsibility that I take
very seriously.
FRA career staff has deep technical expertise and is phenomenally
committed to their work. As Acting Administrator, I bring a broad
perspective and leadership skills to channel that expertise in new ways
to mitigate safety risks. In the time I have been directing FRA, I have
fostered an atmosphere where, as an agency, we can adapt to new
conditions and new realities in the rail industry, while being open to
criticism. The result of that has been to find new solutions to old
challenges like improving grade crossing safety, the handling of NTSB
recommendations, and the improving of our financing program--the
Railroad Rehabilitation & Improvement Financing (RRIF) program.
My time as Acting Administrator and as Chief of Staff at the U.S.
Department of Transportation has prepared me to serve in the position
of Administrator of FRA. In my current capacity as Acting
Administrator, I have led the agency's response to multiple,
significant rail incidents this year, including the West Virginia crude
derailment, the Valhalla/Metro-North grade crossing incident, and the
Amtrak #188 derailment. I have led the agency in becoming a more
transparent and accountable organization. I have set clear safety and
accountability priorities and goals for the agency, and I have led the
FRA in creating a much closer working relationship with the U.S.
Congress and the National Transportation Safety Board (NTSB). As USDOT
Chief of Staff, I led operational and legislative initiatives across
all modes of transportation and served as the direct manager of most
USDOT leadership.
My commitment is to continue to push FRA each day to be vigilant in
the pursuit of safety, by utilizing innovation and new ideas to build
on the positive work that was already taking place prior to my arrival
at FRA.
Question 2. Now that you have been Acting Administrator at the
Federal Railroad Administration (FRA) for the past nine months, what do
you see as some of the major management challenges at the agency?
Answer. As with any change in leadership, new eyes can bring about
fresh thinking in many areas of a vital safety operation like FRA. I am
reevaluating the organizational structure of our agency to ensure the
FRA is the most efficient and effective government agency possible.
That requires maintaining the strength of our workforce, especially in
our critical safety disciplines. An aging workforce and hiring
competition with the industry we regulate are the major challenges we
face in hiring and retaining a full staff at the administration.
In today's world, it is a challenge for any organization to keep
pace with rapidly changing innovation and technological advancements. I
am committed to providing the staff at FRA with modern, high-tech tools
we require in our pursuit to raise the bar of safety throughout
America's rail network.
In addition to these challenges, I have also included this list of
challenges to the committee previously:
Implementing Positive Train Control;
Constantly improving safety; and
Ensuring the Railroad Rehabilitation and Improvement
Financing (RRIF) program can be utilized by appropriate
entities.
Question 3. Do you use an official government e-mail account for
all official business?
Answer. Yes.
Question 4. Do you use an alternate, alias, or other official
account (apart from your primary official account) for any official
business?
Answer. No.
a. If so, is the Department's Chief Freedom of Information Act
(FOIA) Officer aware of this practice?
Answer. Not applicable.
b. Have you ever used a non-official e-mail account for official
business during your various positions in the Administration? If yes,
please explain your purpose and justification for this practice.
Answer. No, it has not been my general practice to use a non-
official e-mail account for any official business during my various
positions in the Administration. To the best of my knowledge and
recollection, when I have been contacted by someone to my personal
address, I have directed communications back to my business e-mail
account.
c. Have you ever used a personal, non-official device to send and/
or receive text messages for official business? If yes, please explain
your purpose and justification for this practice.
Answer. See answer above.
d. Have you ever used any internal instant messaging system for
official business? If so, are these messages properly archived?
Answer. No. I have not used an internal instant messaging system
for official business.
e. Have you ever used any external instant messaging system, such
as Google Chat, for official business? If yes, please explain your
purpose and justification for this practice.
Answer. No.
Question 5. Are you aware of any other Department or Administration
officials who use or have used non-official e-mail accounts and/or
personal, non-official devices for official business?
Answer. I am not aware of Department or Administration officials
who use or have used non-official e-mail accounts for official
business, but DOT employees are permitted to access their DOT e-mail
accounts from personal devices through remote access solutions,
including Outlook Web Access and Virtual Desktop Infrastructure.
Activity is monitored/captured by the DOT system and is in line with
all cybersecurity guidelines.
Question 6. Are you aware of any unlawful or accidental removal,
alteration, or destruction of electronic Federal records in the
Department's custody or control, including e-mails? If so, has the
Department reported these incidents to the National Archives and
Records Administration (NARA)? Please provide details of any such
incidents, including the dates, number and type of records, and
custodians involved, as well as any reports, including dates, made to
NARA.
Answer. No. I am not aware of any unlawful or accidental removal,
alteration, or destruction of electronic Federal records, including e-
mails, in the Department's custody or control.
Question 7. Are you aware of any Department employee's use of a
private or independent e-mail server to conduct official business?
Answer. No.
a. If yes, who approved its use?
Answer. Not applicable.
b. What was the rationale or justification for its use?
Answer. Not applicable.
Question 8. During your hearing, you noted that many railroads are
currently making a good faith effort to implement Positive Train
Control (PTC).
a. In making this assessment, how did you determine what
constitutes a good faith effort?
Answer. I based that statement on statements and meetings conducted
with various railroads in recent months, as well as PTC safety plans
submitted in 2015, as well as recent data railroads submitted to FRA
that showed their PTC implementation progress to date at a high level.
However, FRA's assessment of a railroad's PTC implementation progress
and the evaluation of its corresponding level of effort are ongoing.
FRA is conducting detailed reviews of each railroad required to
implement PTC. These reviews supplement the high-level monthly progress
reports that identify potential areas of non-compliance for all major
aspects of PTC implementation. The goal of the detailed reviews is to
determine whether a railroad's reported progress (or lack of it) is the
product of its own inaction, or due to elements largely outside of the
railroad's control (e.g., an insufficient supply chain or, for a tenant
railroad, lack of its host railroad's or railroads' progress). To avoid
subjectivity, FRA focuses on factual information that can be used to
clearly demonstrate continued efforts on the part of a railroad to
comply with the regulation.
b. Based on your recent data collection and other factors that you
consider, how many railroads, if any, are not making a good faith
effort to implement PTC?
Answer. FRA cannot make that determination until it completes the
detailed investigations of the railroads that are already underway. The
high-level monthly progress reports help to identify which railroads
have shown the least progress, but we will not determine the level of
effort railroads have made from high-level reports alone. In all areas
where railroads cannot demonstrate compliance (e.g., locomotives,
infrastructure, training, etc.), FRA will examine the reason and
purported justification from each railroad.
Currently there are some railroads that have made little to no
quantifiable progress toward demonstrating a fully functioning system,
or part of such a system. Whether this is due to issues outside of the
railroad's control (e.g., supply chain issues), or a failure to adhere
its proposed implementation schedule, is not known, and should not be
presumed, at this time.
Question 9. President Obama's Executive Order 13563 requires
agencies to take into account the benefits and costs and to propose or
adopt a regulation only upon a reasoned determination that its benefits
justify its costs. It requires agencies to select, among alternatives,
those regulatory approaches that maximize net benefits.
a. When evaluating the net benefits of a proposed regulation, does
FRA consider benefits other than safety benefits?
Answer. To evaluate regulatory impact, FRA follows current Federal
guidance on regulatory review in Executive Orders 12866 and 13563, and
Management and Budget (OMB) Circular A-4. As part of the regulatory
review, FRA analyzes all available data and information to determine
the likely consequences of the regulatory proposal. Information is
presented in a regulatory impact analysis (RIA) that is reviewed and
approved by the OMB and available for public comment.
b. During your time as Acting Administrator, has FRA selected any
regulatory approaches, from among available alternatives, that do not
maximize safety benefits but nevertheless maximize net benefits?
Answer. Safety is FRA's top priority. Since I was appointed Acting
Administrator on January 12, 2015, FRA has published one Final Rule,
and worked with the Pipeline and Hazardous Materials Safety
Administration (PHMSA) on one additional Final Rule. FRA's Final Rule
on Securement of Unattended Equipment was published on August 6, 2015.
In the Securement Final Rule, FRA did consider a regulatory alternative
to the Final Rule, but FRA chose not to adopt it because FRA determined
that the Final Rule requirements were as effective at enhancing safety
as the alternative considered, but at much lower cost. Thus, FRA
rejected the more restrictive alternative. FRA further believed that
given the tradeoff between the certainty of relatively low costs and
the benefits of low-probability yet high-consequence incidents, the
Final Rule was a reasonable approach.
The RIA on the Enhanced Tank Car Standards and Operational Controls
for High-Hazard Flammable Trains Final Rule (High-Hazard Flammable
Train Final Rule) presents alternative approaches to the requirements
included in the Final Rule. Again, after extensive analysis, regulatory
review, and public comment, PHMSA and FRA determined the chosen
approach would yield greater safety benefits in the most cost-effective
manner. Furthermore, PHMSA and FRA followed a systematic approach to
safety and believe that each component of the High-Hazard Flammable
Train Final Rule was, and is, instrumental to ensuring the greatest
safe rail transportation of high-hazard flammable liquids.
c. Within the recent high-hazard flammable train rule, did FRA and
the Pipeline and Hazardous Materials Safety Administration (PHMSA)
select the regulatory approach with the greatest safety benefits? If
not, why not?
Answer. FRA and PHMSA believed that the best way to increase the
safety of hazardous materials transported by rail was to implement a
rule that addressed both the tank car standards and the operational
controls for trains transporting significant amounts of Class 3
flammable liquids. This included requiring electronically controlled
pneumatic (ECP) brakes on certain unit trains of Class 3 flammable
liquids, as well as enhanced tank car standards. The RIA presents
extensive information validating the approach taken by FRA and PHMSA.
d. If confirmed, would you propose or adopt a regulation only upon
a reasoned determination that its net benefits justify its costs?
Answer. Under my direction, FRA would adopt or propose a regulation
only after a careful review and determination of need that follows
Federal guidelines for regulatory review. Federal guidance is very
clear about the conditions to determine the need to propose or adopt
new regulations. Additionally, regulatory proposals must be accompanied
by analyses that look into their potential economic impact, paperwork
burden, and small business impact, among others. Information contained
in these documents will allow me to carry out reasonable and justified
regulatory efforts. Note that some statutory mandates from Congress
direct FRA to issue regulations that might not meet the same standards
as agency initiated regulations.
Question 10. During your time as Acting Administrator, FRA issued
an Emergency Order establishing a maximum operating speed of 40 mph in
high-threat urban areas at the same time it had a pending final rule--
issued about two weeks later--covering the same issue.
a. What event or situation caused the need for an Emergency Order
about two weeks before the issuance of the final rule?
Answer. Numerous railroad accidents in the first three months of
2015 involving trains transporting large quantities of flammable
liquids [discussed in FRA Emergency Order No. 30 (EO)] led FRA to the
conclusion that immediate action was necessary to mitigate the effects
of any future potential accidents. As explained in the EO, until DOT
issued its final rule governing ``high-hazard flammable trains'' (80
Fed. Reg. 26643 (May 8, 2015)), FRA believed that public safety
dictated that immediate speed restrictions be placed on trains
transporting large quantities of flammable liquids in highly populated
areas to mitigate the effects of any future derailments that might
occur and could cause a significant hazard of death, personal injury,
or harm to the environment and property.
b. To what extent could the Emergency Order have been issued
earlier based on that event or situation?
Answer. While previous incidents had occurred involving trains
transporting large quantities of petroleum crude oil and ethanol in the
United States (which were, in part, the impetus for DOT's final rule
addressing ``high-hazard flammable trains''), the increased frequency
and continued pattern of incidents in early 2015 led FRA to the
conclusion that additional immediate action in the form of the EO was
necessary to ensure public safety in highly populated areas where any
such derailment could result in catastrophic consequences.
c. Could FRA have issued a separate final rule on maximum operating
speed rather than acting through an Emergency Order?
Answer. Given the short time period between issuance of the EO and
the subsequent final rule (two weeks), it was not possible via the
required regulatory processes to issue a separate final rule. FRA
believed that immediate emergency action, under the agency's express
statutory authority (49 U.S.C. 20104), was necessary to ensure public
safety following several accidents in short succession. The EO had the
practical effect of imposing speed restrictions within ``High Threat
Urban Areas'' for trains transporting large quantities of flammable
liquids approximately 10 weeks earlier than did the final rule.
Question 11. During your hearing, you mentioned that FRA has
greater than 70 outstanding National Transportation Safety Board (NTSB)
recommendations.
a. In addition to recommendations regarding Positive Train Control
(PTC), which NTSB recommendations do you find the most urgent or
important?
Answer.
Obstructive sleep apnea and medical fitness for duty--The
Office of the Secretary of Transportation is exploring the
development of a rulemaking on obstructive sleep apnea. FRA
would participate in any prospective action considered.
Sleep apnea: recommendation R-12-16; report RAR-12-02
Medical fitness: recommendations R-13-18 through R-13-
21; report RAR-13-02
Fatigue (identification, management, and mitigation)--FRA is
currently working on a rulemaking related to fatigue risk
management programs.
Recommendations R-12-17, R-12-18, and R-12-19; report
RAR-12-02
Inward-facing cameras--FRA is drafting a proposed rule
related to the installation and use of recording devices in
locomotive cabs. This important technology can be used for
accident investigations and to conduct train crew operational
tests.
Recommendations R-10-01 and R-10-02; report RAR-10-01
Window retention--FRA is examining window retention
performance in the May 12, 2015, Amtrak derailment in
Philadelphia, and the December 1, 2013, Metro-North Commuter
Railroad Company derailment in the Bronx. FRA will determine
why exterior windows unintentionally opened and whether
measures can be taken to keep the windows more securely in
place during ordinary operations, while not inhibiting their
removal in an emergency and jeopardizing passenger safety.
Recommendation R-14-74; report RAB-14-12
b. Which recommendations do you find FRA should not implement at
this time, and why?
Answer.
Uniform signal aspects--FRA has regulations in place and PTC
will eliminate discrepancy or misunderstanding of the operating
limitations of the signal displayed and its intended
information.
Recommendations R-09-01 and R-09-02; report RAR-09-01
Require PTC to detect the rear of trains--Detailed cost-
effectiveness studies of requiring PTC to detect the rear of
trains will add to the negative benefit-cost ratio that
railroads widely state as a chief deterrent to implementing
PTC.
Recommendation R-12-20; report RAR-12-02
Require that emergency exits on new and remanufactured
locomotive cabs provide for rapid egress and entry--Not enough
data to support this recommendation. Also, FRA rulemakings
directed at securing the cab against intruder entry would be
compromised.
Recommendation R-09-03; report RAR-09-01
c. Given differences in the two agencies' missions and the
additional factors that FRA must consider, how would you determine
which recommendations of the NTSB do not become regulatory priorities
of the FRA?
Answer. FRA carefully evaluates every NTSB recommendation. FRA
conducts research regarding the recommendation using its large
repository of historical safety information. It then compares the
recommendation against existing and developing regulations, examines
the feasibility of implementing the recommendations (e.g., determines
if a technology exists or could be quickly developed to support the
recommendation), and weighs the potential economic and safety impact if
implemented. FRA then uses this body of research to inform its decision
on whether, or how, to implement a NTSB recommendation.
d. Should FRA have oversight of safety at WMATA in a manner
consistent with the recent NTSB recommendation? If not, why not?
Answer. In response to Urgent Safety Recommendation R-15-31 and 32
issued by the National Transportation Safety Board (NTSB) on September
30, 2015, USDOT has stated that they take every recommendation of the
NTSB seriously, including how quickly they or we can implement an
urgent recommendation. In this case, DOT agrees on the urgent problem
identified by NTSB, but believes there is a faster, more effective way
to address it.
DOT agrees that the Tri-State Oversight Committee (TOC), which is
currently responsible for safety oversight of Metrorail, is
ineffective. DOT disagrees, however, that the best, most urgent and
most effective solution is to transfer safety oversight of WMATA's rail
transit system to the Federal Railroad Administration.
Clearly, more needs to be done to ensure that there is sufficient
safety oversight of WMATA until a MAP-21-compliant State Safety
Oversight Agency (SSOA) regime is in place. The TOC has submitted a
plan to achieve compliance, but it is not achievable in the short term.
The approach DOT has outlined will allow for a ramping up of oversight
of WMATA to a level consistent with what would be in place once a fully
MAP-21-compliant SSOA is established. Therefore, it is essential that
the District of Columbia, Maryland, and Virginia proceed with all due
haste to establish a fully compliant SSOA. DOT will engage with the
State and Federal officials from the region to expedite the required
steps to replace the TOC with a fully functioning, sufficiently
resourced SSO organization. Until a fully capable SSO is in place, the
FTA will lead all oversight, inspection, and enforcement activities
over WMATA.
Question 12. During your hearing, you mentioned FRA plans to issue
two new Railroad Rehabilitation and Improvement Financing (RRIF) loans
in the near future.
a. How many RRIF loan applications are currently pending at FRA
(i.e., applications submitted but not approved/announced or
disapproved)?
Answer. 6.
b. What is the potential loan volume of those applications, if
approved?
Answer. The total for the 6 above is $4.9 billion.
c. What is the distribution of those loan applications among
intercity passenger, commuter, Class II freight, and Class III freight
railroads?
Answer. 1 port, 3 Class IIIs, 2 intercity passenger.
Question 13. Do you view a host railroad that is subject to the PTC
requirements and that does not achieve full interoperability with all
of its covered tenant railroads by the deadline as having implemented
PTC in accordance with its implementation plan?
Answer. Under both the statute and the implementing regulations,
full implementation of PTC systems requires interoperability with
tenant railroads. Whether host railroad, tenant railroad(s), or both
are responsible for the failure to fully implement the interoperable
PTC system will be determined on a case-by-case basis.
Question 14. The FRA currently serves dual roles as the primary
funding agency to Amtrak while also sitting on its Board of Directors.
Section 209 in the PRIIA Act of 2008 increased the financial
responsibility of States for train routes fewer than 750 miles and
operated by Amtrak. Given FRA's role in funding Amtrak and sitting on
its Board, what do you see as the role of FRA in Section 209 matters
between Amtrak and the States?
Answer. Section 209 of the Passenger Rail Investment and
Improvement Act (PRIIA) of 2008 required the Amtrak Board of
Directors--in consultation with DOT and States--to develop a
standardized methodology for allocating operating and capital costs for
the 29 State-Supported routes among States and Amtrak. However, unlike
with the NEC Commission, Congress did not authorize the creation of a
body or forum for the Section 209 stakeholders to help facilitate
complex, multi-party negotiations and implement the PRIIA requirements.
This summer, the PRIIA 209 States, Amtrak, and FRA formed the
``State-Amtrak Intercity Passenger Rail Committee.'' This new committee
is intended to improve coordination, governance, policy development,
and decision-making regarding the implementation of PRIIA 209. In many
ways, this committee mirrors the intent of the ``State-Supported Route
Committee'' included in the Senate's DRIVE Act (H.R. 22, Sec. 35203)
and the House's Passenger Rail Reform and Investment Act (H.R. 749,
Sec. 203), both of which include the FRA as a member of their
respective committees.
FRA has followed the direction of Congress in taking a consultation
role in the implementation of PRIIA 209, and concurs that the agency
should continue to provide assistance and oversight to ensure the
continued success of the State-Amtrak partnership to support these
critical services. Twenty-one public agencies currently provide
financial support for the 29 State-Supported routes, with each agency
having its own independent service priorities and operating under
unique political environments. Amtrak must negotiate separate contracts
with each of these entities. FRA's technical assistance and oversight
is necessary to ensure the ``equal treatment in the provision of like
services'' requirement from PRIIA 209 is met. Further, the costs of
operating State-Supported routes are not fully allocated to the States;
a portion of these costs are funded from the annual Amtrak Operating
Grant appropriated by Congress. Therefore, FRA also has a role in
overseeing the funds it provides for State-Supported services and
ensuring those funds are used efficiently and for their intended
purpose.
Separate, apart, and independent of FRA's financial oversight, FRA
must also fulfill its role as the safety regulator over passenger rail
services, which is expanded upon in the next question.
State-Supported routes serve an important role in our national
transportation network, carrying nearly 15 million passengers in Fiscal
Year 2014. Both the States and Amtrak recognize the value of these
routes, as no services have been eliminated or reduced since the first
year of PRIIA 209 implementation in Fiscal Year 2014 despite the States
assuming approximately $100 million in new costs. The FRA, States, and
Amtrak are strong partners working together to deliver safe, reliable,
and efficient passenger rail service to the millions of Americans that
ride Amtrak and State-Supported services each year.
Question 15. As the FRA Administrator, how would you envision the
role of states when it comes to rail safety for intercity passenger
trains that are operated by Amtrak or another rail passenger carrier?
Answer. The safety of the traveling public and railroad employees
is our number one priority. We support market-based options and
competition. Whatever entity ultimately sponsors or operates commuter,
intercity, or other passenger service (be it a State, local agency,
joint powers authority, or private entity), that entity is ultimately
responsible to ensure the safety of that service. FRA is committed to
continuing to work with States or other entities to discuss roles and
responsibilities to ensure that service it sponsors is operated safely
and in compliance with Federal regulations.
Question 16. During a June 2 hearing before the House of
Representatives, you stated that you were closely looking at the issue
of crew size and freight railroad operations. As Congress considers the
issue, it would be helpful to understand the results of your evaluation
thus far.
a. To what extent are one-person crews currently used in the United
States for the rail transportation of hazardous materials?
Answer. The Association of American Railroads' (AAR) President and
Chief Executive Officer, Mr. Edward R. Hamburger, reported in a letter
dated October 16, 2013, to then FRA Administrator Mr. Joseph C. Szabo
that ``Class I railroads currently use two-person crews for over-the-
road mainline operations.'' The FRA has not been informed of any
exception to that statement, and believes that Class I railroads do not
currently have any one-person crew main track operations that haul
hazardous materials. Based on information then FRA Administrator Szabo
received from the American Short Line and Regional Railroad
Association's (ASLRRA) President, Mr. Richard F. Timmons, in a letter
dated October 17, 2013, ASLRRA could not be specific about each of its
members' policies on transporting hazardous materials with one-person
crews.
In some cases, there are operations consisting of one-person
operations with remotely controlled locomotives at a maximum speed of
15 miles per hour over short distances.
In May 2014, FRA surveyed its personnel based in regional field
offices to estimate the operational picture for short lines (Class II
and III). FRA identified 14 short lines that operate with one-person
train crews out of an estimated 752 total short lines.
FRA also estimated that 206 short lines handle ``key trains,''
which are defined by AAR as trains with one or more loaded toxic by
inhalation (TIH) or poisonous by inhalation (PIH) tank cars or 20 or
more loaded hazardous materials cars.
FRA believes that 2-person crews may have significant safety
benefits under certain limited circumstances. The agency is currently
assessing whether 2-person crews should be required in such
circumstances.
b. In the United States, how many freight rail accidents or
incidents per year involve one-person train crews?
Answer. For the Railroad Safety Advisory Committee Train Crew Size
Working Group, an FRA presentation showed that from January 2002
through October 2013, there were approximately 186 accidents/incidents
involving a one-person train crew operating conventional locomotives
(as opposed to remotely controlled locomotives). Of those 186
accidents/incidents, 24 occurred on main track, 139 on yard track, 4 in
sidings, and 19 on industry track. This data is based on information
provided by the railroads reporting the accidents/incidents and is not
based on first-hand FRA investigations.
(Note that reviewed these reports offer the disclaimer that some
reports appear to have counted only one crewmember on the train, but
the report suggests that additional crewmembers may have been present.)
c. How does the frequency and severity of freight rail accidents
involving one-person train crews compare to those involving two-person
train crews?
Answer. FRA does not require railroads to submit data that would
provide information regarding the total operating mileage for one-
person crew operations in the United States, thus FRA cannot compare
the frequency of one-person train crews to those involving two-person
train crews.
As far as severity of accidents is concerned, FRA considers all
reportable accidents/incidents to be severe enough that they should be
tracked, but FRA does not have a method in use to compare severity
between these two-person and one-person crews as categories of
accidents/incidents.
We do not believe that the severity of past accidents is an
accurate predictor of the potential damages in future incidents.
d. More broadly, do you agree with NTSB Chairman Hart's view that,
based on limited experience, two-person crews are not a safety
improvement over single-person crews?
Answer. I have closely reviewed NTSB Chairman Hart's answers during
the June 2 hearing on oversight of the Amtrak accident in Philadelphia,
before the House Committee on Transportation and Infrastructure. Mr.
Hart was answering a question from Rep. Brownley regarding whether it
is Mr. Hart's opinion that a two-person crew might be an interim
solution before PTC is fully implemented. I understood the question to
mean whether a two-person crew on Amtrak, or other passenger railroads,
is the solution, and do not believe the question applied to freight
operations.
I understood Mr. Hart's answer to be that NTSB has little
experience with two-person train operations in the cab of a passenger
train, as most passenger operations have one engineer in the cab and
other crewmembers in the body of the train. And, Mr. Hart did not see a
safety improvement by adding a second train crewmember to the cab of a
passenger locomotive (assuming there was room in the cab for a second
person).
I agree that there is limited experience with two-person crews
located in the operating cab for passenger service. However, I do think
that the safety benefits of a two-person passenger train crew (one in
the locomotive and one in the passenger compartment) are compelling--
especially for assisting the locomotive engineer in coordinating the
operation of the train (e.g., location of speed restrictions, work
zones, slow orders, or during en route failures), assisting the
locomotive engineer in certain operational or administrative duties
that would otherwise distract the locomotive engineer from safely
operating the train (copying track warrants, handling sick passengers
or passenger disturbances), and assistance of passengers--especially
elderly or disabled--during boarding, deboarding, and during
emergencies.
Question 17. Why did FRA choose not to codify in regulation its May
7, 2014 Emergency Order when it solicited public comment on the issue
and had the opportunity to finalize the Order's requirements during the
high-hazard flammable train rulemaking process?
Answer. FRA worked with PHMSA to develop both the high-hazard
flammable train (HHFT) Notice of Proposed Rulemaking (NPRM) and HHFT
final rule (Final Rule). See and 79 FR 45015 (Aug. 1, 2014 and 80 FR
26643 (May 8, 2015)). In the NPRM, PHMSA proposed to codify and clarify
the requirements of the May 7, 2014 Emergency Order. Based on comments
received in response to the NPRM, as well as the agencies' analysis of
the issues involved, the Final Rule did not adopt the proposed
requirements. As explained in the preamble to the Final Rule, the
expansion of the existing route analysis and consultation requirements
of 49 C.F.R. Sec. 172.820 to include high-hazard flammable trains was
determined to be the best approach to ensure that emergency responders
and others involved with emergency response planning and preparedness
would have access to sufficient information regarding crude oil
shipments moving through their jurisdictions. This notification
requirement was based on NTSB Recommendation R-14-001. Expanding the
existing route analysis and consultation requirements of Sec. 172.820
(which already apply to the rail transportation of certain hazardous
materials historically considered to be highly-hazardous) would
preserve the intent of the Emergency Order (i.e., enhancing information
sharing with emergency responders in areas through which HHFTs move)
and, in combination with the other new safety requirements in the HHFT
Final Rule, obviate the need to continue notification to the SERCs as
required by the Order and as proposed in the HHFT NPRM. Accordingly,
the Final Rule contemplated that once the route analysis and
communication requirements of Sec. 172.820 are in full force as applied
to HHFTs (i.e., March 31, 2016), the Order would cease to be effective.
Subsequent to publication of the Final Rule, FRA, PHMSA and the
Department as a whole, received feedback from stakeholders expressing
intense concern about the Department's decision to forgo the proactive
notification requirements of the Order and as proposed in the NPRM.
Generally, these stakeholders expressed the view that given the unique
risks posed by the frequent rail transportation of large volumes of
flammable liquids, including Bakken crude oil, DOT should not eliminate
the proactive information sharing provisions of the Order and rely
solely on the consultation and communication requirements in existing
49 C.F.R. Sec. 172.820. In response to these concerns and after further
evaluating the issue within the Department, in a May 28, 2015 notice
(Notice), the Department announced that it would extend the Order
indefinitely, while it considered options for codifying the disclosure
requirement on a permanent basis.\1\ FRA is currently working with
PHMSA to address this issue through a separate rulemaking process.
---------------------------------------------------------------------------
\1\ http://www.phmsa.dot.gov/hazmat/phmsa-notice-regarding-
emergency-response-notifications-for-shipments-of-petroleum-crude-oil-
by-rail.
Question 18. As part of its recent PTC data collection, does FRA
plan to ask railroads their estimated date for full PTC implementation?
If not, why not?
Answer. FRA will continue to look for opportunities to gather
informative data from railroads on their progress implementing PTC. The
current data collection is focused on information that will be directly
useful for assessing compliance, and the progress towards achieving
compliance. An estimated date of network completion was not considered
to be of direct value for this purpose, as it would not change a
railroad's state of compliance (the main driver of enforcement). FRA
requested estimated dates for the submission of PTC Safety Plans
(PTCSP), however, as this denotes a significant milestone that can be
more accurately projected by the railroads. The submission of a PTCSP
also represents a significant deliverable that will require FRA review,
thus the projected date will help FRA manage its resources and prepare
for expected submissions moving forward. FRA will continue to reexamine
its information and data collection needs, and will adjust data we are
requesting as future opportunities present themselves.
Question 19. During your hearing, you mentioned that FRA has taken
action on more than half of the outstanding NTSB recommendations and
that you have found new solutions.
a. How many new rulemakings have you initiated during your time as
Acting Administrator? How many of these new rulemakings are significant
under Executive Order 12866?
Answer. Most rulemaking proceedings that FRA currently has underway
began under previous FRA Administrators. However, since arriving at
FRA, I have directed the initiation of a rulemaking on Locomotive
Recording Devices. FRA initiated the Locomotive Recording Devices
rulemaking on June 23, 2015, concerning inward-and outward-facing
cameras and storage of camera images on locomotive event recorders, and
protections for the use of these recordings.
FRA will continue to initiate new rules to the extent necessary and
appropriate in carrying out its safety responsibilities.
b. How many of the actions to address NTSB recommendations were
initiated during your time as Acting Administrator? How many of these
were new rulemakings?
Answer. FRA initiated most actions to address NTSB-issued
recommendations that were made prior to my tenure. Under my tenure, FRA
has continued work on several NTSB recommendations, and sent new or
fresh responses to the NTSB on several outstanding recommendations. FRA
has received five new NTSB recommendations this year. FRA's subject
matter experts are analyzing them and developing action plans,
accordingly.
Finally, FRA (or PHMSA) has rulemakings underway to address 18 open
NTSB recommendations.
Question 20. Given the focus on crude oil and ethanol in the high-
hazard flammable train rulemaking, for its railroad accident or
incident reporting form, why does FRA not collect information on the
total number of ethanol cars in the affected train, the number of
ethanol cars that derail, and the number of ethanol cars that puncture?
Answer. In the context of rail equipment accidents/incidents
involving the release of a hazardous material such as ethanol, the
information a railroad must provide to FRA under the regulations on the
agency's accident reporting forms is only part of the information FRA
collects. As part of FRA's investigation of a rail accident involving a
release of hazardous materials, under its authority, FRA obtains
accident-investigation information on the number and contents of
railcars carrying hazardous materials in the affected train, as well as
the number and content of railcars carrying hazardous materials that
derail and those that puncture.
FRA published a notice in the Federal Register on August12, 2015
(Notice), announcing its intent to collect on an existing Office of
Management and Budget (OMB)-approved accident reporting form certain
information about accidents involving trains transporting crude oil. As
FRA stated in the Notice, FRA took this action in response to a series
of rail accidents involving trains transporting crude oil, and the
agency utilized an existing OMB-approved form to implement the enhanced
information collection requirement. As also explained in the Notice,
although FRA utilized the existing form since it was the most efficient
and expeditious method of immediately improving FRA's information
collection activity, the agency is evaluating additional, more
comprehensive, methods to improve its overall information collection
activities on the transportation of hazardous material by rail. This
includes information on the rail transportation of ethanol.
Implementation of any significant changes to FRA's accident reporting
forms will, however, necessitate a notice-and-comment rulemaking, a
time-consuming process.
Question 21. FRA has used safety advisories to address certain
safety issues, including ballast defects and wheel impact load detector
standards. Unlike rules, however, safety advisories are issued without
a benefit-cost analysis and without public comment.
a. When FRA issues a safety advisory on, for example, wheel impact
load detector standards, does FRA expect that safety advisory to have
the force and effect of law?
Answer. No. FRA safety advisories by their nature provide strong
recommendations, but not legal requirements. FRA enforces Federal laws,
regulations, and orders. However, an FRA safety advisory may also
reference a separate, enforceable requirement, such as a regulation.
b. Does FRA expect railroads to have a legal obligation to comply
with safety advisories?
Answer. FRA does not believe that railroads have a legal obligation
to comply with safety advisories, however, safety advisories provide
strong safety recommendations.
c. How does FRA determine for which issues it should issue a rule
and for which it should issue a safety advisory?
Answer. FRA often uses safety advisories to quickly alert the
railroad industry to specific safety risks that current laws,
regulations, and orders do not currently address, but that warrant the
FRA-recommended voluntary action. In this way, FRA acts to carry out
the principal rail safety laws, which Congress intended ``to promote
safety in every area of railroad operations and reduce railroad-related
accidents and incidents.'' 49 U.S.C. 20101.
FRA also uses safety advisories to remind the railroad industry of
existing requirements and of recent accidents in which noncompliance
either contributed to the accident or aggravated its severity to alert
railroads to consider addressing similar safety concerns.
Question 22. For passenger locomotives, will qualified maintenance
personnel, or others responsible for performing tests and inspections,
be in violation in law if they deem locomotives to be in compliance and
safe to operate even though on-board locomotive apparatuses are not
fully operational? Does the use of the term ``appurtenances'' include
on-board Positive Train Control locomotive apparatuses installed but
not fully operational?
Answer. If a track segment has PTC systems equipped, the
locomotives traveling over that track must be PTC-equipped and the PTC
onboard apparatus should be treated like any other locomotive equipment
that must be inspected.
However, if the track segment is not yet PTC-equipped and the PTC
onboard apparatus is not yet capable of functioning, it would not be
sensible to treat the apparatus as defective because the PTC onboard
apparatus is not inherently defective. Therefore, in that scenario, FRA
would not at this time consider an inspection that determined the
locomotive to be in compliance and safe to operate in violation of the
rail safety laws.
FRA is determining the application of the safety laws and
regulations, including whether or not PTC onboard apparatuses are
``appurtenances.'' However, FRA would not consider the onboard PTC
apparatus as an ``appurtenance'' in violation of the rail safety laws
if the track segment is not yet PTC-equipped and the PTC onboard
apparatus is not yet capable of functioning.
Question 23. While predominantly focusing on the unit train
transportation of crude oil and ethanol, the high-hazard flammable
train rule has effects for tank cars hauling other commodities.
a. How many tank cars carrying other Class 3 flammable liquids
(i.e., flammable liquids other than crude oil and ethanol) will need to
be retrofitted or replaced?
Answer. In the RIA for the High-Hazard Flammable Train Final Rule,
PHMSA estimated 354 tank cars are used to transport flammable liquids
other than crude oil or ethanol in high-hazard flammable train (HHFT)
service.
b. Which flammable liquids other than crude oil and ethanol are
most likely to be in a tank car that is part of a high-hazard flammable
train, and what are the packing groups of those flammable liquids?
Answer. The DOT is unaware of any commodities other than crude oil
and ethanol that are offered from a single location in quantities that
would trigger the requirements for an HHFT.
There are locations in the U.S. with high concentrations of
chemical and petrochemical manufacturers, however, such as the Gulf
Coast. In these areas, a railroad services a shipper on a spur line.
Local trains pick up the tank cars and take them to a classification
yard where they are put into long haul trains for delivery to their
destination or destinations. On these spur lines, a railroad could pick
up a sufficient number of tank cars containing flammable liquids to
constitute a HHFT. (It is worth noting that trains on these spur lines
usually operate at low speed because of factors such as track grade,
curvature, or number of stops.)
Given the reported volume of commodities shipped in previous years,
commodities most likely to be in a HHFT include gasoline, diesel fuel,
methanol, styrene monomer, and aviation fuel.
------------------------------------------------------------------------
Packing
Shipping Name Id Number Hazard Class Group(s)
------------------------------------------------------------------------
Gasoline UN1203 Flammable Liquid II
------------------------------------------------------------------------
Diesel Fuel UN1202 Flammable Liquid III*
------------------------------------------------------------------------
Methanol UN1230 Flammable Liquid II
------------------------------------------------------------------------
Styrene Monomer UN2055 Flammable Liquid III*
------------------------------------------------------------------------
Aviation Fuel UN1863 Flammable Liquid I; II; III*
------------------------------------------------------------------------
* Note: Under Sec. 173.150(f), a flammable liquid with a flashpoint of
38 C (100 F) or higher that does not meet the definition of any other
hazard class, may be reclassed as a combustible liquid.
c. For each of the ten flammable liquids that have the greatest
number of carloads transported by rail, about what percentage of the
total annual miles traveled by carloads of each flammable liquid
(cumulatively by UN number) occur in high-hazard flammable trains?
Answer. This information is not readily available. However, based
on the 2013 Surface Transportation Board's Confidential Waybill Sample,
84 percent of the crude oil tank car loads and 47 percent of the
ethanol tank car loads moved in unit trains. In the High-Hazard
Flammable Train Final Rule, the DOT asserted very few tank cars (354)
containing other than crude oil and ethanol would operate in HHFTs.
Unfortunately, the Waybill Sample data does not contain the detail need
to distinguish between the relatively limited numbers of originations
of other flammable liquids. Nevertheless, DOT's assertion is supported
by Railinc data provided by the Association of American Railroads (AAR)
in its comments on that rule, which indicate that in the first quarter
of 2015 less than 0.3 percent of origin-destination pairs of tank cars
containing flammable liquid were in blocks of between 20 and 34 cars.
d. To what extent do shippers of Class 3 flammable liquids have
control over the composition of the trains that haul their products?
Can a shipper of a single carload of a Class 3 flammable liquid other
than crude oil or ethanol request not to be hauled in a high-hazard
flammable train?
Answer. Shippers of tank cars containing flammable liquids must (on
the shipping papers for the tank cars) report accurately to the
railroads the number and identification of the tank cars containing
flammable liquids the shippers are offering into transportation. After
the tank cars are accepted by the railroad, the shipper has no control
over the composition of the train that hauls their cars of flammable
liquids.
A shipper of a single car of flammable liquid other than crude oil
or ethanol may request the car not be moved in a high-hazard flammable
train. However, it is ultimately up to the railroad to assemble a train
and, based on the specification and number of tank cars containing
flammable liquid, operate the train in accordance with the regulations.
______
Response to Written Questions Submitted by Hon. Kelly Ayotte to
Sarah E. Feinberg
Question 1. In your written testimony you explained that the
Federal Railroad Administration (FRA) is prioritizing the
implementation of Positive Train Control (PTC) and that the
Administration is hiring new staff and has established a task force
that is charged with reporting to you the progress and performance of
each railroad as it relates to PTC implementation. I understand the
safety benefits of PTC and I want to see PTC technology fully
implemented and operational as soon as possible. What has the task
force reported most recently regarding the progress of railroads with
complying with the December 31, 2015, deadline for PTC implementation?
Answer. The FRA has been actively engaged with all railroads
regarding their PTC implementation progress for many years. Most
recently, the FRA PTC Task Force has initiated a number of steps to
collect specific and detailed data regarding implementation progress of
all operating railroads currently required to be equipped with
interoperable PTC systems by December 31, 2015. This data is essential
to accurately track the railroads' progress and is also intended to
support FRA's enforcement activities.
Most recently, railroads were asked to submit reports on their
implementation progress by September 15, 2015, and to do so monthly
until implementation is complete. This high-level reporting will be
further supported by more detailed investigations of the railroads by
FRA's regional staff, to provide additional resolution and reasoning
for a railroad's reported progress. As of September 15, 2015, only one
railroad has reported 100 percent implementation in all critical areas
(locomotives, infrastructure, and training), and five railroads have
reported completion of component implementation in at least one area.
Currently, there are more than 10 railroads reporting little to no
quantifiable progress that could demonstrate a fully functioning
system, or a part of such a system.
Question 2. Has the task force identified an enforcement plan for
those railroads who will not meet the December 31, 2015, implementation
deadline?
Answer. Yes. In 2010, following a public comment period, FRA
published a final rule stipulating how the agency would go about
enforcing the PTC requirement.
More recently, we have stated clearly that we intend to enforce the
current deadline of December 31, 2015, as mandated by the Congress.
Assuming the PTC deadline is not extended, for those railroads that
choose to operate beyond the deadline and in violation of the law, we
have stated that we intend to enforce that law with fines, as well as
requiring railroads to take additional steps to raise the bar on safety
in lieu of PTC. Just like with any enforcement action, FRA will
determine which railroads are in non-compliance based on factual
investigations.
______
Response to Written Questions Submitted by Hon. Dan Sullivan to
Sarah E. Feinberg
Question 1. The railroad said it envisions running two trains per
week with each consisting of 60-70 portable LNG tanks riding atop 30-70
flatcars. Alaska RR met with top FRA officials last December and filed
its application last February.
Interior Alaska, especially around the Fairbanks area, has some of
the highest energy costs in the country. In fact, households in
Fairbanks average $8,100 per year per home for heating, hot water and
electricity. This is approximately three times more than the average
annual energy cost in Anchorage, and nearly four times the national
average.
The State of Alaska is trying to address those needs. The Alaska
Industrial Development & Export Authority (AIDEA) has a process
underway to meet those needs via transporting liquefied natural gas
(LNG) to Interior Alaska. The state's railroad, the Alaska Railroad,
figures prominently in a majority of the proposals and the process is
nearing a decision point. However, the Alaska RR needs FRA approval to
transport LNG. I understand the application was filed last February.
Could you give me a status report on this application?
Answer. Based on the information the Alaska Railroad Corporation
(AKRR) provided FRA, FRA conducted a thorough review and analysis of
AKRR's request for approval and proposed operations for the rail
transport of liquefied natural gas (LNG) in container-on-flatcar (COFC)
service. On October 9, 2015, FRA granted AKRR conditional approval
under 49 C.F.R. Sec. 174.63(a) to transport LNG in T75 portable tanks,
effective for 2 years.
Question 2. The average delivery of a major infrastructure project
is 14 years from start to finish.
Of that, the average time for environmental review for major
transportation project had increased to a staggering 8 years in 2011--
up from 3.5 years in 2000. In addition, the average Environmental
Impact Statement spanned 22 pages in length when NEPA was first
written, today's highway projects often saw environmental documents of
more than 1,000 pages. Those numbers are unacceptable and translate
into increased in increased costs, long delays, congestion on our rails
and the loss of economic opportunity.
What is the average time it take to deliver a large rail project in
the US? What is average for a project that only uses non-federal funds?
What is the average for a project that uses Federal funds? What is one
solution that we need to be doing that we aren't already doing to cut
the permitting time?
Answer. The delivery of large rail projects includes many
activities, such as planning, preliminary design and environmental
review, final design, and construction. With the recent expansion of
FRA's rail investment programs, meaningful data on the duration of
Environmental Impact Statements (EIS) is limited by the small number of
recent EISs completed to date. Since 2008, FRA has completed two
publicly-sponsored and funded construction project EISs that took an
average of 4.4 years to complete. In the same period, FRA also
completed 42 Environmental Assessments for publicly-sponsored and
funded projects which took on average one year to complete.
FRA is committed to responsibly streamlining the delivery of rail
projects. The Administration's GROW AMERICA Act sets forth many
proposals to reduce infrastructure project delivery timelines. For
example, Section 1001 of the GROW AMERICA Act could help provide
environmental review agencies with adequate staff capacity to expedite
rail and other transportation projects. However, ultimately the most
critical factor in delivering large rail transportation infrastructure
investments is predictable, dedicated funding.
FRA and DOT have taken several important steps to accelerate
delivery for the environmental review stage of projects:
In January 2013, FRA added seven Categorical Exclusions
(CEs) to its list of 20 CEs. CEs provide significant time and
cost savings for project sponsors because they eliminate the
need for Environmental Assessments or Environmental Impact
Statements.
FRA has applied a tiered approach to environmental reviews
for passenger rail corridor programs. This approach allows FRA
to clear the envelope of a corridor at a high level so specific
project elements can advance incrementally as funding becomes
available.
On September 22, 2015, the Office of Management and Budget
(OMB) and the President's Council on Environmental Quality
(CEQ) issued guidance that establishes a set of requirements
for agencies to report a common set of project schedule metrics
for infrastructure projects beginning in October 2015 on an
enhanced Federal Infrastructure Permitting Dashboard.
Question 3. Should FRA always be the lead agency in the NEPA
process for a rail project? As the lead agency on a project, do you
believe other agencies processes should have a time restriction for
action? If so, what is a reasonable time restriction? And what would
you need as FRA Administrator to empower the FRA in the NEPA process
and get back to building the Nation's infrastructure instead of
studying it?
Answer. Yes, in general, FRA should be the lead agency under the
National Environmental Policy Act (NEPA) for rail projects receiving or
expecting to receive financial assistance from the FRA.
FRA aims to efficiently conduct environmental reviews. CEQ NEPA
regulations already encourage lead and cooperating agencies to use
available discretion to coordinate environmental reviews to most
efficiently address projects that vary greatly in complexity and
substance. And, as discussed above, recent OMB-CEQ metric guidance
encourages agencies to work together to set achievable project
schedules that align and reduce time associated with permitting and
environmental review timelines, when appropriate and practicable, and
that deliver the best outcomes. As such, agreement on a tailored
project schedule, with the concurrence of all Federal agencies with
jurisdiction over an environmental permit or review, is the most
effective approach for a lead agency in establishing timelines for
other agencies.
______
Response to Written Questions Submitted by Hon. Steve Daines to
Sarah E. Feinberg
Question 1. Ms. Feinberg, as we discussed at the hearing, Montana
has nearly 3,200 miles of railroad track that moves agricultural
commodities, record amounts of crude oil, coal and other manufactured
products. Railroads are an economic bloodline for Montana, as we export
the majority of these goods. Needless to say, it is imperative to
Montana that we continue to move these passengers and commodities in a
safe and efficient manner.
We hear in this Committee increasingly from witnesses that
performance and outcome based regulations are worth pursuing given the
proactive safety practices of industry and the rapid evolution of
technology. Based on my experiences in the private sector, I know
industry sets a high standard for safety and is most often the source
of safety technology innovation. As Administrator, how would you
characterize performance based regulation in the realm of our Nation's
railroads and is this worth pursuing? Would this help facilitate
innovation?
Answer. FRA is committed to facilitating industry's technological
innovations while still exercising proper safety oversight.
Performance-based standards generally allow for innovations that
maintain or improve safety, and minimize costs of compliance.
Developing performance-based standards also presents opportunities for
collaboration with industry that encourage new ideas and establish new
working relationships.
An example: FRA tasked its Railroad Safety Advisory Committee
(RSAC) to produce a set of technical performance criteria and
procedures to evaluate passenger rail equipment built to alternative
designs, to ensure that trainsets based on international platforms can
be engineered to operate safely in the United States. Based on RSAC's
recommendations, FRA is preparing a notice of proposed rulemaking to
codify these technical performance criteria, which will allow the
industry greater flexibility to use various contemporary design
techniques and incorporate emerging technologies.
There are instances where it may be more appropriate to adopt
designed-based or a combination of design-and performance-based
standards when developing a rule, and FRA sometimes needs the
flexibility to make that decision. Notably, small entities may not have
the human or capital resources to invest in order to take advantage of
cost-savings from more performance-based approaches. FRA takes this
into consideration in developing regulations generally applicability to
all classes of railroads.
Question 2. I was also glad you mentioned your work with PHMSA in
your testimony and agree that FRA and PHMSA need to regularly work
together with industry and stakeholders. In fact, on September 18,
2015, this Committee held a field hearing in Billings, Montana to
examine state and local perspectives of PHMSA as we work to reauthorize
the agency.
On July 16, 2015, train cars derailed near Culbertson, MT. My
understanding is that of the 22 cars derailed, only five (5) leaked,
resulting in approximately 35,000 gallons of crude oil being released.
Fortunately, there were no injuries, no fires, and no waterways were
contaminated. Reports indicate the train was not speeding. We were
lucky, unlike some of the accidents you referenced in your testimony.
My understanding is there here were three (3) types of cars on that
train--the unjacketed 1232s and jacketed 1232s, and the newest DOT-117
car. What lessons did you take away from how these three cars
performed? As Administrator, how will you work with PHMSA and industry
experts to ensure we continue to move increasing amounts of energy
commodities in a manner safe to both the public and the environment?
Answer. 22 total tank cars derailed in the Culbertson, MT incident.
All derailed cars were specification DOT-111 tank cars, constructed to
industry's CPC-1232 standard. Three of the derailed cars were equipped
with jackets; the remainder were non-jacketed. Six of the cars were
breached in the incident; all of these were non-jacketed. Of the six
cars that lost product, one was punctured. Leakage from the other cars
occurred from either the bottom outlet valve or top valves and
fittings. The tank cars were constructed with \1/2\'' steel plate and
were equipped with top fittings protection. The quantified
survivability of these cars is between that of the legacy DOT-111 cars
and that of the DOT-117 tank cars. The outcome of the derailment
supports FRA's belief that thicker tank and top fittings protection,
along with the distributed power configuration (an associated train
handling and braking improvement), limited the consequences of the
derailment.
If confirmed as Administrator, I will continue FRA's coordination
with PHMSA and engagement with industry stakeholders and experts. FRA
worked closely with PHMSA on the development of the HHFT rule and its
regulatory impact analysis. This collaboration continues as the
agencies address administrative appeals to the rule and prepare an NPRM
for Oil Spill Response plans. FRA will continue to work with PHMSA to
develop and implement interagency regulatory and enforcement strategies
to address emerging issues such as the packaging and transportation of
energy commodities such as crude oil and its derivatives natural gas,
natural gas liquids, condensates, and ethane.
In regard to working with industry stakeholders, I believe
government's regulatory and enforcement initiatives are a portion of an
overall effort that includes all segments of the industry. Only through
collaboration and open discourse can we identify meaningful measures to
prevent and mitigate incidents involving energy products. We need
industry experts to help inform our decisions and we need their leaders
to take quick effective steps to mitigate risk. I will urge leaders in
FRA's Office of Railroad Safety to continue to develop coalitions with
industry to implement programs in which both persistent and emerging
safety issues are identified and addressed. Should regulatory efforts
be required we will engage industry experts to inform FRA's response.
Further, FRA's Office of Research and Development will collaborate with
industry to ensure our funded projects are focused on important safety
issues and/or complementing ongoing industry research.
______
Response to Written Questions Submitted by Hon. Amy Klobuchar to
Sarah E. Feinberg
Question 1. I share the concerns of first responders who have
indicated that too much of the burden falls on them to secure critical
safety information from freight rail carriers. As the implementation
process for the final rail tank car safety rule moves forward, it is
critical that DOT work collaboratively with rail carriers and first
responders, including fire and emergency services personnel, to
establish an information-sharing system that will ensure municipalities
can effectively plan for and respond to freight rail related
derailments. What more can the F-R-A do to improve the dissemination
and transparency of information that rail carriers share with local
communities?
Answer. I agree that local government agencies and first responders
are crucial players when a rail accident occurs, and are entitled to as
much information as possible that can assist them in their response.
FRA continues to work with PHMSA and other stakeholders to improve the
information-sharing between railroads and local governments to ensure
that local emergency responders and emergency response planning
organizations can effectively plan for and respond to freight rail-
related derailments.
On May 28, 2015, PHMSA announced that it would extend the
Department's May 7, 2014 Emergency Order (EO) requiring railroads
operating high-hazard flammable trains to proactively share information
on the movement of these trains through local jurisdictions.
On July 22, 2015, FRA sent a letter to railroads reminding them
that they must continue to provide the information required by the EO
indefinitely, while the Department considers options for codifying the
disclosure requirement on a permanent basis.
FRA is currently working with PHMSA to address this issue on a more
permanent basis through a separate rulemaking process on oil spill
response plans. Information and views gathered through this regulatory
initiative will inform FRA and PHMSA on other actions in this area that
might be necessary.
Question 2. Positive Train Control holds great promise to reduce
the number of train incidents caused by human error. Congress passed
the Rail Safety Improvement Act in 2008, which included the requirement
to establish PTC systems on about 60,000 miles of track. A recent
Government Accountability Office report on the progress of implementing
PTC confirmed that most railroads will not meet the 2015 PTC deadline.
Railroad companies have indicated that they are preparing to stop
handling Toxic Inhalation Hazard (TIH) and passenger traffic due to
their inability to install PTC on affected lines which could cause
service disruptions for non-TIH commodities, such as coal and grain, as
well. Will the FRA consider continued movement of non-TIH and non-
passenger traffic over such lines after December 31, 2015, to be in
violation of the 2008 legislation?
Answer. The 2008 legislation required implementation of positive
train control on certain track segments carrying PIH/TIH and passenger
traffic. FRA interpreted the statute as establishing 2008 as the
baseline year for initially determining which mainlines would require
the implementation of PTC utilizing the criteria contained in the
statute. Thus, unless a railroad submits an appropriate request for
amendment (RFA) to their approved PTC implementation plan (PTCIP) to
remove a line from the PTCIP, the railroad would remain in violation of
the regulations and the statute even if the line carried only non-
covered traffic. Under 49 C.F.R. 236.1005(b)(4) the RFA would need to
include traffic projections for 5 years and the railroad would need to
establish that after December 31, 2015, no passenger traffic will be
present on the line and that there will be no PIH traffic on the line.
Thus, simply eliminating the TIH and/or passenger traffic is not
sufficient to remove a line from the regulatory or statutory PTC
mandate, the involved railroads would also need to submit an
appropriate request with FRA for removing such track segments from
their existing PTCIP.
Question 3. Has the FRA consulted with the Surface Transportation
Board to determine whether a failure to continue such operations would
be consistent with the common carrier obligation to provide service
upon reasonable request?
Answer. FRA maintains a close working relationship with the STB and
engages with the board on all cross-cutting issues, including PTC, but
the authority to determine whether failure to provide service violates
common carrier obligations lies exclusively with the STB.
______
Response to Written Questions Submitted by Hon. Richard Blumenthal to
Sarah E. Feinberg
Question 1. The FRA is promulgating rules for passenger railroads
and freight railroads that require these railroads to have system
safety and risk reduction plans. The FRA's proposed rule would keep
this information out of court, making it difficult for victims to get
the information they need to pursue their cases. The impetus for this
effort is a study conducted by a law firm that has close ties to the
railroad industry, which, not surprisingly, suggests the information be
kept outside the reach of victims. Do you think it's appropriate for
the FRA to rely on an outside firm with ties to industry to make a
decision about something that is so important to industry?
Answer. FRA has heard the concerns expressed about the law firm's
study, and I appreciate the importance of this issue. My legal and
contracting staff, however, have reviewed both the study and the
process used to select the law firm, Baker Botts. After doing so, we
believe Baker Botts was not biased in reaching its conclusions.
The FRA complied with all applicable requirements of the Federal
Acquisitions Regulations, or FAR, when selecting Baker Botts for the
study. A critical part of this selection process is ensuring that Baker
Botts does not have any impermissible bias or conflict of interest.
Although Baker Botts historically represented the Southern Pacific
railroad in the late 1800s until sometime in the early 1900s, we are
not aware of any current railroad representation indicating that Baker
Botts is not a neutral party. While I understand that Baker Botts has
represented one railroad in environmental regulatory and compliance
matters unrelated to railroad accident litigation, we have concluded
that this is not an impermissible conflict of interest or bias for
purpose of the study contract.
Finally, this study was just one tool FRA used when considering the
proposed information protections. As required by the Rail Safety
Improvement Act of 2008, FRA also solicited input from railroad labor
organizations and railroad accident victims and their families. FRA
solicited this feedback publicly, and it is available on
www.regulations.gov in Docket No. FRA-2011-0025. FRA did not consider
itself bound by the study's conclusion, but considered all submitted
views when formulating its proposed System Safety Program (SSP) and
Risk Reduction Program (RRP) rules, which were also available for
public comment.
Question 2. Will FRA engage a neutral party to re-evaluate this
issue?
Answer. FRA remains confident the law firm conducting the study did
not have an impermissible bias or conflict of interest, therefore we do
not have plans to conduct another study.
Question 3. Does it worry you that railroads will use their safety
plans as repositories for all kinds of information that they want to
shield from discovery, limiting victims' rights to critical information
they need to fight their case? Won't this proposed rule have terrible
consequences for those seeking to assert their claims in court?
Answer. FRA is, of course, committed to preserving the rights and
interests of accident victims in litigation. We are also concerned,
however, that a System Safety Program (SSP) or Risk Reduction Program
(RRP) rule without some form of information protection could ultimately
result in a lack of real and substantive improvement to railroad
safety. If a railroad believes it could leave itself open to harm in
litigation by comprehensively analyzing all safety hazards, risks, and
mitigation measures, we have concerns the railroad will not engage in a
comprehensive SSP or RRP.
After carefully balancing the interest we all have in greater
railroad safety and security with the rights and interests of accident
victims in litigation, FRA has concluded that it is in the public
interest to propose limited protections for RRP and SSP information. My
staff is working to make those protections as precise as possible,
while still encouraging railroads to engage in a real analysis of
safety risks and hazards. As explained in the SSP and RRP Notices of
Proposed Rulemaking, the protections would apply only to information
generated ``solely'' for use in an SSP or RRP. If a railroad used SSP
or RRP information for any other purpose, the rules would not protect
that use of information. My staff is working to further clarify the
scope of the information protections, so we can avoid situations in
which a railroad impermissibly uses an SSP or RRP to shield information
from discovery.
Overall, FRA is working to ensure that railroad accident victims do
not lose access to information after the issuance of an SSP or RRP
rule. To be clear, any information available to railroad accident
victims today will remain available. The only information FRA intends
to protect is information that never would have existed without an SSP
or RRP rule. FRA believes this approach will promote safety by
encouraging railroads to engage in robust SSPs and RRPs, while not
harming the interests of accident victims in litigation.
______
Response to Written Questions Submitted by Hon. Cory Booker to
Sarah E. Feinberg
Question 1. One of the most critical issues facing New Jersey is
the need to build additional rail capacity across the Hudson River. The
existing tunnels are 105 years old, were badly damaged by corrosive
saltwater from Superstorm Sandy, and may only last another 20 years
before they need to be shut down for extensive repair. Shutting them
down without first building new tunnels would have devastating economic
consequences for my state and the entire Northeast region. But when you
consider that the Northeast represents $1 out of every $5 in gross
domestic product, it becomes clear that this impacts the entire nation.
You and Secretary Foxx recognize that and have shown tremendous
leadership in trying to move the ball forward, whether by bringing
stakeholders together or proposing the type of Federal investments that
will be needed to get this done. In your view, how urgent is the
situation facing these tunnels and what should we be doing at the
Federal level in response?
Answer. The situation facing the tunnels is dire. Superstorm Sandy
served as a stark reminder of the importance of the Hudson River
tunnels (and the Northeast Corridor as a whole) to the New York
metropolitan area, the Northeast region, and our broader National
economy. Sandy also highlighted the need for recovery and resiliency
for our vital transportation assets. Specifically, the flooding and
associated damage to Amtrak's existing Hudson River tunnels resulted in
the cessation of all Amtrak NEC intercity passenger rail and New Jersey
Transit service into New York City for approximately five days,
affecting nearly 600,000 daily riders and causing substantial economic
harm.
FRA believes it is a question of when--not if--the Hudson River
rail tunnels will need to be taken out of service for extensive
rehabilitation and repair. These emergency repairs will likely take
more than a year. The Northeast Corridor Infrastructure and Operations
Advisory Commission (NEC Commission) estimates that unless additional
capacity is constructed under the Hudson River by the time those
repairs begin, rail service through the tunnels may need to be cut by
as much as 75 percent during that rehabilitation work. As the NEC
Commission states in its Five-Year Capital Plan, such a service
reduction would represent a ``nightmare scenario'' with devastating
effects on the economy and people's way of life in the region.
Amtrak is currently working to replace track in the existing
tunnels and preserve the right-of-way for a new tunnel, and Governors
Chris Christie and Andrew Cuomo have recently pledged to cover half of
the project's cost. Sec. Foxx continues to work with both states to
make certain the Federal Government does its part to make a new tunnel
a reality. FRA stands ready to help make the project happen to ensure
passengers are safely transported and to increase capacity.
Question 1a. How can we better utilize Sandy relief funds to repair
these tunnels?
Answer. Amtrak was awarded $235 million in Sandy relief funds
appropriated under the Fiscal Year 2013 Disaster Assistance
Supplemental Appropriations Bill (P.L. 113-2) for the first two phases
of the Hudson Yards Encasement Project. This project, which preserves a
portion of the underground right-of-way necessary for the new Hudson
River rail tunnels, represents the critical first step to constructing
the new tunnels to increase capacity and provide redundancy into the
New York Penn Station/Moynihan Station complex.
Most of the remainder of the $10.9 billion appropriated for
Superstorm Sandy relief efforts have been allocated to other public
transportation response, recovery, and resiliency projects. I remain
open and interested in working with the Senate Commerce Committee and
the Congress as a whole, to ensure remaining Sandy funds, as well as
any additional funding, addresses ongoing needs.
Question 2. In December 2014, the Northeast Corridor Commission
voted to adopt a new framework for regional collaboration and cost
sharing among Northeast Corridor passenger rail operators. The
framework must now be implemented in the form of contractual agreements
between Amtrak and the various commuter rail authorities that use the
Northeast Corridor. The passenger rail bill that I introduced along
with Senator Wicker includes several provisions aimed at complementing
this framework. Together, they would represent a first step forward in
establishing new federal-state partnership for investment in Northeast
Corridor infrastructure. As one of the Federal representatives the
Northeast Corridor Commission, what is your perspective on how
implementation efforts are going?
Answer. The adoption of the cost allocation policy framework in
December 2014 has led to significant activity over the past nine months
among FRA, infrastructure owners, and service operators on the NEC. The
NEC Commission and its members have achieved several important
milestones during this time, including:
Approving the first-ever comprehensive NEC Five-Year Capital
Plan reflecting the input of all corridor owners and operators;
Developing and approving the NEC One-Year Spend Plan to
guide the use of approximately $425 million in shared FY 2016
capital contributions;
Engaging in detailed bi-lateral agreement negotiations to
implement the policy; and
Voting in September 2015 to reaffirm and adopt the policy
for the FY 2016-FY 2020 period. This vote reflects the desire
of the corridor to enter into a new chapter of corridor-wide
collaboration and shared financial commitment.
Separately, each of these milestones is a notable step toward a new
level of transparency and collaboration among NEC stakeholders. Taken
together, they demonstrate the sustained commitment of all NEC
Commission members to enhance the management and operation of the
Nation's most critical passenger rail network.
With the onset of the policy term in FY 2016, the FRA recognizes
that some parties have not yet reached final operating and capital
agreements to implement the policy. The FRA understands that some of
the negotiations have been quite challenging due to the complexity of
the parties' existing contractual agreements. However, the FRA is
encouraged by the efforts of the NEC owners and operators to-date and
believes that the parties will continue to advance implementation in FY
2016.
Question 2a. What can FRA do to support implementation?
Answer. The FRA strongly supports the implementation of the NEC
Commission cost allocation policy and urges the NEC infrastructure
owners and service operators to continue their work developing new bi-
lateral agreements to implement the policy. FRA believes that reaching
agreements that reflect the cost allocation policy's principles of
transparency and clarity are critical to the continued success of the
NEC in serving the traveling public.
While the FRA is not a direct party to these agreements, the agency
is aware of the complicated issues faced by some parties. We also
receive frequent updates on the status of negotiations from the NEC
Commission staff and the respective agencies. FRA facilitates these
discussions and consistently emphasizes the importance of developing
these agreements in our discussions with all stakeholders on the
corridor, and will continue to do so until all parties have reached an
agreement.
In addition to serving as a member of the NEC Commission, FRA
provides technical assistance to other members to help facilitate
discussions among stakeholders or resolve disputes.
Question 3. The Federal Railroad Administration's Railroad
Rehabilitation and Improvement Financing program, or RRIF, is a
uniquely powerful tool for investing in rail infrastructure, but it is
severely underutilized. Earlier this year, I introduced legislation,
most of which was included in the DRIVE Act passed by the Senate, aimed
at substantially improving the ability of RRIF to issue loans for major
infrastructure projects, like the Hudson River tunnels or the Portal
Bridge in New Jersey. How can RRIF help accomplish some of our mutual
goals?
Answer. I believe RRIF loan financing can play an important role in
advancing major infrastructure projects, such as the Hudson River
tunnels and Portal Bridge.
As I stated in my testimony on September 17th, ``the RRIF Program
is very much open for business.'' FRA has made process improvements to
increase stakeholder outreach, provide technical assistance to
prospective borrowers, and streamline the loan application process.
Already in 2015, FRA has completed the same number of loans--two--as
the previous three years combined, with more expected by the end of the
year. Additionally, both the Administration's GROW AMERICA proposal and
the Senate's DRIVE Act contain provisions aimed at expanding
eligibility and increasing participation in the program.
However, RRIF and financing programs in general are only one tool
for addressing the growing infrastructure deficit facing our Nation.
Predictable, dedicated grant funding is required to make the
investments needed to meet our mobility needs and support economic
growth.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Sarah E. Feinberg
Question 1. Ms. Feinberg, I want to thank you for your commitment
to public service and your commitment to improving rail safety. As you
know, Congress has mandated that positive train control (PTC) be
implemented by December 31, 2015. However, you have noted that most
Class 1 and commuter railroads are unlikely to meet this deadline. This
includes the New Mexico Rail Runner Express, which operates 18 trips
per day between Albuquerque and Santa Fe, with approximately 5 million
gross tons of freight annually. While I support safety improvements, I
am concerned about the impact of service disruption Rail Runner riders
could experience if Congress does not extend the PTC implementation
deadline.
If confirmed as FRA Administrator, would you consider a revision to
the ``limited operation exception'' regulation to increase the
threshold from 12 regularly scheduled passenger trains to a level that
would allow the New Mexico Rail Runner Express to apply for an
exception to the PTC requirement given its current level of passenger
service?
Answer. FRA is willing to look at the possibility of raising the
threshold. As always, any decision would be guided by safety. However,
we have not received a petition for a rulemaking requesting such a
change. In addition, FRA regulations at 49 C.F.R. Part 211 provide the
process for filing petitions for waivers. We have also not yet received
such a request for waiver.
Question 2. Given the limited financial resources available to
commuter rail operators for PTC implementation, what other options
would you consider as FRA Administrator to ensure passenger service is
maintained at current levels by operators like New Mexico Rail Runner
Express?
Answer. In addition to considering a potential petition for waiver,
in the Generating Renewal, Opportunity and Work with Accelerated
Mobility, Efficiency, and Rebuilding of Infrastructure and Communities
throughout America Act (GROW AMERICA), the Secretary proposes to assist
publicly funded commuter rail agencies to implement PTC systems by
providing $3 billion over 6 years for commuter railroads to support
implementation. Such flexibility, authority, and funding would allow
FRA to be more responsive to the reality and obstacles of PTC system
implementation while still holding railroads accountable. FRA also
makes loans available through the Railroad Rehabilitation and
Improvement Financing program to applicants interested in assistance in
paying for PTC implementation. (In 2015, FRA issued a nearly $1 billion
loan to the Metropolitan Transit Authority in New York for
implementation of PTC on the Long Island Rail Road and Metro-North
Commuter Railroad Company.)