[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]




 
                     EXAMINING FREIGHT RAIL SAFETY

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

                                (117-52)

                             REMOTE HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON RAILROADS, PIPELINES,
                        AND HAZARDOUS MATERIALS

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 14, 2022

                               __________

                       Printed for the use of the
             Committee on Transportation and Infrastructure
             
             
             
             
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     Available online at: https://www.govinfo.gov/committee/house-
     transportation?path=/browsecommittee/chamber/house/committee/
                             transportation
                             
                             
                             
                          ______
 
              U.S. GOVERNMENT PUBLISHING OFFICE 
 48-964 PDF          WASHINGTON : 2022                             
                             
                             

             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

  PETER A. DeFAZIO, Oregon, Chair
SAM GRAVES, Missouri                 ELEANOR HOLMES NORTON,
ERIC A. ``RICK'' CRAWFORD, Arkansas    District of Columbia
BOB GIBBS, Ohio                      EDDIE BERNICE JOHNSON, Texas
DANIEL WEBSTER, Florida              RICK LARSEN, Washington
THOMAS MASSIE, Kentucky              GRACE F. NAPOLITANO, California
SCOTT PERRY, Pennsylvania            STEVE COHEN, Tennessee
RODNEY DAVIS, Illinois               ALBIO SIRES, New Jersey
JOHN KATKO, New York                 JOHN GARAMENDI, California
BRIAN BABIN, Texas                   HENRY C. ``HANK'' JOHNSON, Jr., 
GARRET GRAVES, Louisiana             Georgia
DAVID ROUZER, North Carolina         ANDRE CARSON, Indiana
MIKE BOST, Illinois                  DINA TITUS, Nevada
RANDY K. WEBER, Sr., Texas           SEAN PATRICK MALONEY, New York
DOUG LaMALFA, California             JARED HUFFMAN, California
BRUCE WESTERMAN, Arkansas            JULIA BROWNLEY, California
BRIAN J. MAST, Florida               FREDERICA S. WILSON, Florida
MIKE GALLAGHER, Wisconsin            DONALD M. PAYNE, Jr., New Jersey
BRIAN K. FITZPATRICK, Pennsylvania   ALAN S. LOWENTHAL, California
JENNIFFER GONZALEZ-COLON,            MARK DeSAULNIER, California
  Puerto Rico                        STEPHEN F. LYNCH, Massachusetts
TROY BALDERSON, Ohio                 SALUD O. CARBAJAL, California
PETE STAUBER, Minnesota              ANTHONY G. BROWN, Maryland
TIM BURCHETT, Tennessee              TOM MALINOWSKI, New Jersey
DUSTY JOHNSON, South Dakota          GREG STANTON, Arizona
JEFFERSON VAN DREW, New Jersey       COLIN Z. ALLRED, Texas
MICHAEL GUEST, Mississippi           SHARICE DAVIDS, Kansas, Vice Chair
TROY E. NEHLS, Texas                 JESUS G. ``CHUY'' GARCIA, Illinois
NANCY MACE, South Carolina           CHRIS PAPPAS, New Hampshire
NICOLE MALLIOTAKIS, New York         CONOR LAMB, Pennsylvania
BETH VAN DUYNE, Texas                SETH MOULTON, Massachusetts
CARLOS A. GIMENEZ, Florida           JAKE AUCHINCLOSS, Massachusetts
MICHELLE STEEL, California           CAROLYN BOURDEAUX, Georgia
Vacancy                              KAIALI`I KAHELE, Hawaii
                                     MARILYN STRICKLAND, Washington
                                     NIKEMA WILLIAMS, Georgia
                                     MARIE NEWMAN, Illinois
                                     TROY A. CARTER, Louisiana
                                     Vacancy

     Subcommittee on Railroads, Pipelines, and Hazardous Materials

DONALD M. PAYNE, Jr., New Jersey, 
               Chair
ERIC A. ``RICK'' CRAWFORD, Arkansas  TOM MALINOWSKI, New Jersey
SCOTT PERRY, Pennsylvania            SETH MOULTON, Massachusetts
RODNEY DAVIS, Illinois               MARIE NEWMAN, Illinois
MIKE BOST, Illinois                  STEVE COHEN, Tennessee
RANDY K. WEBER, Sr., Texas           ALBIO SIRES, New Jersey
DOUG LaMALFA, California             ANDRE CARSON, Indiana
BRUCE WESTERMAN, Arkansas            FREDERICA S. WILSON, Florida
BRIAN K. FITZPATRICK, Pennsylvania   JESUS G. ``CHUY'' GARCIA, Illinois
TROY BALDERSON, Ohio                 MARILYN STRICKLAND, Washington,
PETE STAUBER, Minnesota                Vice Chair
TIM BURCHETT, Tennessee              GRACE F. NAPOLITANO, California
DUSTY JOHNSON, South Dakota          HENRY C. ``HANK'' JOHNSON, Jr., 
TROY E. NEHLS, Texas                 Georgia
MICHELLE STEEL, California           DINA TITUS, Nevada
SAM GRAVES, Missouri (Ex Officio)    JARED HUFFMAN, California
                                     STEPHEN F. LYNCH, Massachusetts
                                     JAKE AUCHINCLOSS, Massachusetts
                                     TROY A. CARTER, Louisiana
                                     PETER A. DeFAZIO, Oregon (Ex 
                                     Officio)



                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................   vii

                 STATEMENTS OF MEMBERS OF THE COMMITTEE

Hon. Donald M. Payne, Jr., a Representative in Congress from the 
  State of New Jersey, and Chair, Subcommittee on Railroads, 
  Pipelines, and Hazardous Materials, opening statement..........     1
    Prepared statement...........................................     3
Hon. Eric A. ``Rick'' Crawford, a Representative in Congress from 
  the State of Arkansas, and Ranking Member, Subcommittee on 
  Railroads, Pipelines, and Hazardous Materials, opening 
  statement......................................................     4
    Prepared statement...........................................     9
Hon. Peter A. DeFazio, a Representative in Congress from the 
  State of Oregon, and Chair, Committee on Transportation and 
  Infrastructure, prepared statement.............................   105
Hon. Sam Graves, a Representative in Congress from the State of 
  Missouri, and Ranking Member, Committee on Transportation and 
  Infrastructure, prepared statement.............................   106

                               WITNESSES
                                Panel 1

Hon. Amit Bose, Administrator, Federal Railroad Administration, 
  oral statement.................................................     9
    Prepared statement...........................................    11
Hon. Thomas B. Chapman, Member, National Transportation Safety 
  Board, oral statement..........................................    16
    Prepared statement...........................................    17

                                Panel 2

Roy L. Morrison III, Director of Safety, Brotherhood of 
  Maintenance of Way Employes Division, International Brotherhood 
  of Teamsters, oral statement...................................    55
    Prepared statement...........................................    56
Don Grissom, Assistant General President, Brotherhood of Railway 
  Carmen Division, TCU/IAM, oral statement.......................    61
    Prepared statement...........................................    62
Grady C. Cothen, Jr., Retired, Transportation Policy Consultant, 
  oral statement.................................................    67
    Prepared statement...........................................    68
Nathan C. Bachman, Vice President of Sales and Business 
  Development, Loram Technologies, Inc., oral statement..........    73
    Prepared statement...........................................    74
Cynthia M. Sanborn, Executive Vice President and Chief Operating 
  Officer, Norfolk Southern Corporation, and Chair, Safety and 
  Operations Management Committee, Association of American 
  Railroads, oral statement......................................    77
    Prepared statement...........................................    78
Jeremy Ferguson, President, Sheet Metal, Air, Rail, 
  Transportation-Transportation Division, oral statement.........    85
    Prepared statement...........................................    87

                       SUBMISSIONS FOR THE RECORD

Letter of June 10, 2022, to Hon. Amit Bose, Administrator, 
  Federal Railroad Administration, from Hon. Eric A. ``Rick'' 
  Crawford, Ranking Member, Subcommittee on Railroads, Pipelines, 
  and Hazardous Materials, Submitted for the Record by Hon. Eric 
  A. ``Rick'' Crawford...........................................     4
Statement from the Association of State Railroad Safety Managers, 
  Submitted for the Record by Hon. Donald M. Payne, Jr...........    52
Submissions for the Record by Hon. Peter A. DeFazio:
    Statement of Chuck Baker, President, American Short Line and 
      Regional Railroad Association..............................   106
    Emails from Two Railroad Employees...........................   110
    Letter of June 28, 2022, to Hon. Donald M. Payne, Jr., Chair, 
      and Hon. Eric A. ``Rick'' Crawford, Ranking Member, 
      Subcommittee on Railroads, Pipelines, and Hazardous 
      Materials, from Rachel Maleh, Executive Director, Operation 
      Lifesaver, Inc.............................................   113

                                APPENDIX

Questions to Hon. Amit Bose, Administrator, Federal Railroad 
  Administration, from:
    Hon. Peter A. DeFazio........................................   115
    Hon. Eleanor Holmes Norton...................................   117
    Hon. Seth Moulton............................................   117
    Hon. Dina Titus..............................................   119
    Hon. Brian K. Fitzpatrick....................................   119
Questions to Hon. Thomas B. Chapman, Member, National 
  Transportation Safety Board, from:
    Hon. Peter A. DeFazio........................................   120
    Hon. Seth Moulton............................................   121
    Hon. Dina Titus..............................................   121
Questions to Roy L. Morrison III, Director of Safety, Brotherhood 
  of Maintenance of Way Employes Division, International 
  Brotherhood of Teamsters, from:
    Hon. Donald M. Payne, Jr.....................................   122
    Hon. Dina Titus..............................................   122
Questions to Grady C. Cothen, Jr., Retired, Transportation Policy 
  Consultant, from:
    Hon. Peter A. DeFazio........................................   126
    Hon. Seth Moulton............................................   129
Questions to Cynthia M. Sanborn, Executive Vice President and 
  Chief Operating Officer, Norfolk Southern Corporation, and 
  Chair, Safety and Operations Management Committee, Association 
  of American Railroads, from:
    Hon. Peter A. DeFazio........................................   130
    Hon. Grace F. Napolitano.....................................   132
    Hon. Seth Moulton............................................   133
Questions from Hon. Dina Titus to Jeremy Ferguson, President, 
  Sheet Metal, Air, Rail, Transportation-Transportation Division.   135
  
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                              June 9, 2022

    SUMMARY OF SUBJECT MATTER

    TO:       Members, Subcommittee on Railroads, Pipelines, 
and Hazardous Materials
    FROM:   Staff, Subcommittee on Railroads, Pipelines, and 
Hazardous Materials
    RE:       Subcommittee Hearing on ``Examining Freight Rail 
Safety''



                                PURPOSE

    The Subcommittee on Railroads, Pipelines, and Hazardous 
Materials will meet on Tuesday, June 14, 2022, at 10:00 a.m. ET 
in 2167 Rayburn House Office Building and via Zoom to hold a 
hearing titled ``Examining Freight Rail Safety.'' The purpose 
of this hearing is to hear from government and stakeholder 
witnesses about the state of freight rail safety and issues 
pertinent to keeping rail operations, rail workers, and 
communities safe. The Subcommittee will receive testimony from 
the Federal Railroad Administration; the National 
Transportation Safety Board; the Brotherhood of Maintenance of 
Way Employes Division; Brotherhood of Railway Carmen Division; 
retired transportation policy consultant; Loram Technologies, 
Inc.; Norfolk Southern Corporation and Association of American 
Railroads; and Sheet Metal, Air, Rail Transportation-
Transportation Division.

                               BACKGROUND

I. FEDERAL RAILROAD ADMINISTRATION

    The Federal Railroad Administration (FRA) is responsible 
for administering the federal rail safety program.\1\ FRA has 
the authority to issue regulations and orders pertaining to 
rail safety and to issue civil and criminal penalties to 
enforce those regulations and orders.\2\
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    \1\ Subtitle V of Title 49, United States Code.
    \2\ Id.
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    FRA executes its railroad safety responsibilities through 
various skilled staff. FRA headquarters staff include technical 
experts who manage the mission critical programs, provide 
technical oversight and management of field personnel, and 
support development of safety standards and regulations.\3\ The 
agency relies on its field presence to monitor compliance with 
federally mandated standards, which includes approximately 350 
railroad safety inspectors covering six safety disciplines and 
more than 100 specialists, engineers, analysts, and managers 
who work in the field.\4\ FRA further relies on 202 state 
safety inspectors employed by 33 states by agreement to perform 
compliance inspections and additional investigative and 
surveillance activities.\5\
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    \3\ Federal Railroad Administration, Fiscal Year 2023 Budget 
Estimates, Page 46.
    \4\ The six disciplines include: operating practices; motive power 
and equipment; signal and train control; track; hazardous materials; 
and grade crossing safety. FY 2023 Budget Estimates, Page 42: https://
www.transportation.gov/sites/dot.gov/files/2022-04/
FRA_Budget_Estimates_
FY23.pdf
    \5\ Communication from Federal Railroad Administration to 
Subcommittee Staff, and https://railroads.dot.gov/divisions/
partnerships-programs/state-rail-safety-participation.
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    In addition to FRA's field-based specialists and 
inspectors, FRA's Office of Railroad Safety includes nine 
Safety Management Teams (SMT) located across the country.\6\ 
Created in June 2020 during a reorganization of the office, the 
SMTs are responsible for oversight and engagement with a single 
railroad or a class of railroads to monitor risks at a 
railroad-specific system-wide level rather than by region.\7\
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    \6\ Safety Management Teams, https://railroads.dot.gov/divisions/
regional-offices/safety-management-teams
    \7\ Id.
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II. NATIONAL TRANSPORTATION SAFETY BOARD

    The National Transportation Safety Board (NTSB) is an 
independent federal agency charged with investigating 
significant accidents in railroad and other transportation 
modes.\8\ Staff working in the Railroad Division of the Office 
of Railroad, Pipeline and Hazardous Materials Investigations 
investigate accidents and incidents involving passenger and 
freight railroads, commuter rail transit systems, and other 
fixed guideway systems.\9\ The division also assesses selected 
railroad safety issues, often based on a set of accident 
investigations.\10\ Special studies may focus on analyses of 
regulations, railroad safety programs or procedures, or audit 
reviews of management and operations practices.\11\ The NTSB 
also coordinates the resources of the federal government and 
other organizations to assist victims and their family members 
impacted by transportation disasters.\12\
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    \8\ 49 USC 1131.
    \9\ National Transportation Safety Board Fiscal Year 2023 Budget 
Request, Page 66.
    \10\ Id.
    \11\ Id.
    \12\ 49 USC 1139.
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    The NTSB's 2021-2022 Most Wanted List of Transportation 
Safety Improvements (``Most Wanted List'') includes a call to 
improve the safety of rail workers.\13\ The Most Wanted List 
highlights recurring safety issues impacting roadway workers in 
accident investigations such as concerns for continued use of 
train approach warning, the need for proper training and job 
briefings, access to necessary protective equipment, and work 
schedules and limitations based on science to prevent fatigued 
workers from working overtime.\14\ The Most Wanted List also 
calls for protection of operating crews and mechanical workers 
through the use of buffer cars.\15\
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    \13\ Improve Rail Worker Safety, 2021-2022 Most Wanted List, 
National Transportation Safety Board https://www.ntsb.gov/Advocacy/mwl/
Pages/mwl-21-22/mwl-rph-02.aspx
    \14\ Id.
    \15\ Id.
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III. SAFETY DATA

    Railroads must regularly report to FRA on safety events 
occurring in their systems that meet certain thresholds 
specified in FRA regulations.\16\ FRA uses the information 
concerning hazards and risks to carry out its regulatory 
responsibilities, and for determining comparative trends of 
railroad safety and to develop hazard elimination and risk 
reduction programs that focus on preventing railroad injuries 
and accidents.\17\ Accuracy of such reported information is 
critical.\18\ FRA publishes on its website railroad reports and 
safety data. Below is publicly reported data on Class I 
railroads for the decade of 2013 to 2022.\19\
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    \16\ 49 CFR Part 225.
    \17\ 49 CFR 225.1
    \18\ 49 CFR 225.33 regulates Internal Control Plans.
    \19\ Data includes only Class I railroads, excluding Amtrak. Ten 
Year Accident/Incident Overview 1.12, January-December 2022, retrieved 
June 3, 2022, Available at https://safetydata.fra.dot.gov/
OfficeofSafety/publicsite/Query/TenYearAccidentIncidentOverview.aspx.
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TRAIN ACCIDENTS (NOT AT GRADE CROSSINGS):

    The number and rate of train accidents have fluctuated for 
the last decade. The number of accidents include a low of 1,229 
accidents (2021) and a high of 1,592 accidents (2018). The rate 
of accidents per million train miles include a low of 2.415 
accidents per million train miles (2013), and a high of 3.019 
accidents per million train miles (2019).\20\ This compares to 
the previous decade (2003-2012) annual train accidents which 
measured at a low of 1,390 (2012) and a high of 2,778 (2004), 
and rate of train accidents per million train miles at a low of 
2.402 (2012) and a high of 4.372 (2004).\21\
---------------------------------------------------------------------------
    \20\ Accidents per million train miles is an FRA standard 
measurement.
    \21\ Data includes only Class I railroads, excluding Amtrak. Ten 
Year Accident/Incident Overview 1.12, January-December 2012, retrieved 
April 29, 2022. Available at https://safetydata.fra.dot.gov/
OfficeofSafety/publicsite/Query/TenYearAccidentIncidentOverview.aspx.

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TRAIN ACCIDENTS (NOT AT GRADE CROSSINGS) BY CAUSE:

    Railroads assign causes to reportable accidents. Human 
factor and track remain the leading causes of train accidents, 
followed by miscellaneous. This is consistent with the previous 
decade.\22\
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    \22\ Id.
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HIGHWAY-RAIL GRADE CROSSING INCIDENTS:

    The number of highway-rail grade crossing incidents ranged 
from 1,386 (2020) to 1,709 (2014); the rate of such incidents 
per million train miles includes a low of 2.627 (2014) and high 
of 3.633 (2021).
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EMPLOYEE ON-DUTY CASES (INJURY, ILLNESS, AND FATALTIES):

    The number of employee on-duty deaths ranged from 6 (2016, 
2019, 2020) to 9 (2013, 2017, 2018, 2021).
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ACCIDENTS IN YARDS:

    In yards, switching is the process of putting cars in a 
specific order. The total number of yard switching miles has 
decreased over the decade, but the number of accidents on yard 
track has fluctuated and the rate of yard accidents per yard 
switching miles has increased.\23\
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    \23\ Yard accidents per yard switching miles is an FRA standard 
measurement.
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IV. SAFETY ISSUES

FATIGUE:

    Research has shown that various conditions can affect 
fatigue such as sleep loss, workload, stress, monotony, 
workplace ergonomics, age, health, medications, noise, and 
circadian disruption.\24\ Rapid changes in the circadian 
pattern of sleep and wakefulness disrupt many physiological 
functions, and such disruptions may impair human performance 
and cause a general feeling of debility until realignment is 
achieved.\25\ Symptoms of fatigue include, but are not limited 
to, falling asleep, increased reaction time, loss of 
attentional capacity, and decline of short-term and working 
memory function which may impair performance, increase error, 
and increase accident risk.\26\
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    \24\ Citations for research related to fatigue can be found in 
Federal Railroad Administration, Notice of Proposed Rulemaking, Fatigue 
Risk Management Programs for Certain Passenger and Freight Railroads, 
Docket No. FRA-2015-0122, December 22, 2020. See page 83486 of that 
document for a description of fatigue symptoms.
    \25\ Id at 83486.
    \26\ Id.
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    FRA research has established that the probability of rail 
accidents increases as fatigue increases.\27\ Between 2000 and 
2020, the NTSB conducted 11 major investigations of accidents 
involving railroads subject to FRA jurisdiction in which 
fatigue was identified as the probable or a contributing cause 
of the accident.\28\
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    \27\ Id. at 83491.
    \28\ National Transportation Safety Board, Correspondence to the 
Federal Railroad Administration dated February 17, 2021, on Safety 
Recommendation R-12-016, https://www.ntsb.gov/investigations/_layouts/
ntsb.recsearch/Recommendation.aspx?Rec=R-12-016.
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    Congress and the FRA require railroads to manage their 
employees' fatigue associated with railroad operations through 
hours of service (HOS) limitations and rest requirements.\29\ 
HOS limitations are generally based on the assumption that 
fatigue simply increases as time passes.\30\ This does not 
account for factors such as sleep loss, amount of sleep, 
circadian rhythms, sleep quality, and the effects of the type 
of task being performed on the resulting level of fatigue.\31\ 
Additionally, not all railroad workers are covered by HOS 
protections; ordinarily HOS do not apply to maintenance-of-way 
employees, carmen, or yardmasters.\32\
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    \29\ 49 USC Chapter 211; 49 CFR Part 228; Federal Railroad 
Administration, Notice of Proposed Rulemaking, Fatigue Risk Management 
Programs for Certain Passenger and Freight Railroads, Docket No. FRA-
2015-0122, December 22, 2020, Page 83486.
    \30\ Id. at Page 83486.
    \31\ Id.
    \32\ Id. and Federal Railroad Administration, Yardmasters and Yard 
Safety in the U.S. Railroad Industry: An Exploratory Study, January 
2007, Page 9 https://railroads.dot.gov/sites/fra.dot.gov/files/fra_net/
422/ord0701.pdf
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    As part of the Rail Safety Improvement Act of 2008, 
Congress required that by 2012 FRA require the Class I 
railroads, railroad carriers providing intercity or commuter 
rail passenger transportation, and railroad carriers that have 
inadequate safety performance, develop fatigue management plans 
(as part of safety risk reduction programs) to reduce the 
fatigue experienced by safety-related railroad employees and to 
reduce the likelihood of accidents, incidents, injuries, and 
fatalities caused by fatigue.\33\ In December 2020, FRA issued 
a Notice of Proposed Rulemaking (NPRM) to implement the 2008 
mandate.\34\
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    \33\ Section 103 of Division A, Rail Safety Improvement Act of 
2008, P.L. 110-432.
    \34\ Federal Railroad Administration, Notice of Proposed 
Rulemaking, Fatigue Risk Management Programs for Certain Passenger and 
Freight Railroads, Docket No. FRA-2015-0122, December 22, 2020.
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WORKFORCE:

    The average total number of workers employed by the Class I 
railroads at the end of 2021 was nearly one-third less than the 
total employed in 2015, according to data reported by the 
railroads and published by the Surface Transportation 
Board.\35\ These cuts were implemented as part of precision 
scheduled railroading and continued through the COVID-19 
pandemic.\36\ Railroad workers and unions representing them 
contend that the workforce cuts are causing worker fatigue from 
increased working hours, increased workload, and management 
pressure to rush safety work, all of which are leading to 
deteriorated workplace conditions and reduced safety 
culture.\37\ Examples include employees working 16-hour shifts 
consecutively, fewer workers covering larger territories, and 
less time permitted to inspect a rail car from three minutes to 
one minute.\38\ They claim that this has contributed to workers 
leaving the industry and refusing recalls from furlough.\39\ 
Railroads have in place plans to hire certain railroad workers 
and are reporting regularly on those plans and their progress 
to the Surface Transportation Board.\40\
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    \35\ Employment data reported by the Class Is, published by the 
Surface Transportation Board. https://www.stb.gov/reports-data/
economic-data/employment-data/
    \36\ See for example page 5 of Norfolk Southern 2019 Annual Report 
to Investors http://www.nscorp.com/content/dam/nscorp/get-to-know-ns/
investor-relations/annual-reports/annual-report-2019.pdf and page 55 of 
Union Pacific 2020 Annual Report to Investors https://www.up.com/cs/
groups/public/@uprr/@investor/documents/investordocuments/
pdf_up_10k_02072020.pdf.
    \37\ Comments of BMWE, BRS, SMART Mechanical Division, NCFO 32BJ/
SEIU, TWU, Submitted by Rich Edelman to the Surface Transportation 
Board in Docket EP 770, Urgent Issues in Freight Rail Service, April 
22, 2022, throughout including pages 84, 86, 90, 103, 105, 108, 109, 
122, 125, 126, 129, 130, 131, 136, 142, 148, 149, 155, and 157-159.
    \38\ Id.
    \39\ Id. throughout including pages 60-63, 73-75, 90, 122, 136, and 
143.
    \40\ The Surface Transportation Board began requiring this 
reporting following its April 26 and 27, 2022 public hearing with the 
issuance of Decision, Surface Transportation Board, Urgent Issues in 
Freight Rail Service--Railroad Reporting, May 6, 2022, Docket No. EP770 
(Sub-No. 1).
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CREW SIZE:

    Federal regulations do not require a minimum crew size. 
While some railroad operations use single-person crews, Class I 
railroads operate with two crewmembers: a locomotive engineer 
and a conductor.\41\ In two-person crew operations, engineers 
and conductors work together to safely operate a train.\42\ FRA 
regulations do not prohibit railroads from choosing to operate 
a train with only one crewmember.\43\
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    \41\ U.S. Department of Transportation, Federal Railroad 
Administration, Train Crew Staffing Notice of Proposed Rulemaking 
Regulatory Impact Analysis, February 18, 2016, FRA-2014-0033, Page 22.
    \42\ Subtitle V of Title 49, United States Code. Train Crew 
Staffing Notice of Proposed Rulemaking, Federal Railroad 
Administration, March 15, 2016, FRA-2014-0033, throughout including at 
Page 13925.
    \43\ Id. at page 13943.
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    In March 2016, FRA issued an NPRM that proposed a standard 
requiring a minimum of two crewmembers and minimum requirements 
for the roles and responsibilities of the second 
crewmember.\44\ The NPRM proposed two options for permitting 
existing single-crew operations to continue and allowing 
operations to begin single-crew operations, as well as 
exceptions for certain passenger and freight operations.\45\ 
The agency held a public hearing on the NPRM in July 2016.\46\ 
On May 29, 2019, the FRA published in the Federal Register a 
notice to withdraw the 2016 NPRM.\47\ In the May 2019 document, 
FRA wrote that the withdrawal of the NPRM preempts states from 
enacting laws relating to crew size.\48\
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    \44\ Train Crew Staffing Notice of Proposed Rulemaking, Federal 
Railroad Administration, March 15, 2016, FRA-2014-0033.
    \45\ Id.
    \46\ Federal Railroad Administration, Proposed rule; notice of 
public hearing and reopening of comment period, FRA-2014-0033 Notice 
No. 3, June 15, 2016.
    \47\ Train Crew Staffing Notice, Federal Railroad Administration, 
May 29, 2019, FRA-2014-0033-1606.
    \48\ Id.
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CREW CERTIFICATION AND TRAINING:

    FRA regulations require that railroads have approved 
locomotive engineer and conductor certification programs to 
reduce the rate and number of accidents and incidents and to 
improve railroad safety.\49\ The standards include minimum 
eligibility, training, testing, certification, and monitoring 
standards to help ensure that only those who meet minimum 
safety standards serve as engineers and conductors.\50\
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    \49\ 49 CFR Parts 240 and 242.
    \50\ Id.
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    From March to August 2021, two certified conductors were 
fatally injured while performing their duties relating to train 
operations.\51\ There were also incidents that resulted in 
amputation and crushing injuries.\52\ In November 2021, FRA 
identified the concern that the industry was reducing the 
duration of conductor certification training for new-hire 
employees and noted that there had recently been two certified 
conductors with less than a year of service who suffered 
amputations after being struck by moving railroad 
equipment.\53\ FRA began conducting comprehensive reviews and 
audits of all conductor certification programs to confirm 
compliance with Part 242.\54\
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    \51\ November 12, 2021 letter from Deputy Administrator Bose to the 
Association of American Railroads, American Short Line and Regional 
Railroad Association, and American Public Transportation Association.
    \52\ Id.
    \53\ Id.
    \54\ Id.
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    Section 22410 of the Infrastructure Investment and Jobs Act 
(IIJA, P.L. 117-58) directs FRA to audit the locomotive 
engineer and conductor qualification, certification, and 
training programs, in consultation with the railroads and their 
workers, for compliance with Parts 240 and 242.

SAFE TRAIN MAKEUP:

    Proper train makeup is critical for ensuring a train is 
able to effectively negotiate track and prevent derailment, 
according to FRA.\55\ Train makeup refers to the placement of 
individual railcars that make up a train.\56\ Freight trains 
carry a variety of freight using different types of railcars 
that vary in capacity, length, weight, and other 
characteristics, and they operate through various weather 
conditions and diverse terrain as flat plains and undulating or 
mountainous territories.\57\ Improperly assembled trains are 
more susceptible to derailment, in part because of vertical, 
longitudinal, and lateral forces throughout the train--also 
known as ``in-train'' forces--that can affect the stability of 
a train on its tracks, depending on a variety of factors, 
including the train's specifications, speed, and terrain, among 
others.\58\ For example, excessive ``in-train'' forces can 
cause a long, heavy train to pull apart or climb off the track 
upon a change of grade (e.g., going up or down hills) or when 
the train enters a curve.\59\
---------------------------------------------------------------------------
    \55\ Government Accountability Office, Rail Safety are Getting 
Longer, and Additional Information is Needed to Assess their Impact, 
May 2019, GAO-19-443, Page 6.
    \56\ Id.
    \57\ Id.
    \58\ Id. at 7.
    \59\ Id.
---------------------------------------------------------------------------
    A conventional air-braking system is controlled by an air 
pressure signal from the leading locomotive, which sends a 
signal through the train to engage brakes.\60\ Because each 
railcar receives this signal sequentially, it takes multiple 
seconds for railcars at the end of the train to receive the air 
pressure signal and begin braking.\61\ Application of air 
brakes generates in-train forces, as railcars at the front of 
the train that have applied brakes will be pushed by railcars 
further back that have not yet received the air signal.\62\ 
Other technologies, including two-way end-of-train (EOT) 
devices and radio-controlled locomotives (distributed power 
``DP'' units), are sometimes used by railroads in conjunction 
with conventional brakes to provide improved braking 
performance or other benefits, such as adding extra power to 
help pull or push long and/or heavy trains.\63\ EOT devices 
measure brake pressure and transmit this information via radio 
signal to the front of the train.\64\ An EOT device can also 
engage air brakes at the rear end of a train in an emergency to 
decrease the time required to apply the brakes on all cars.\65\
---------------------------------------------------------------------------
    \60\ Id.
    \61\ Id.
    \62\ Id.
    \63\ Id.
    \64\ Id. at 8.
    \65\ Id.
---------------------------------------------------------------------------
    If radio communication between the controlling locomotive 
and EOT device is interrupted, an EOT device will not be able 
to initiate emergency braking when requested, according to 
FRA.\66\ Regulations allow communication between the EOT device 
and the controlling locomotive to be lost for up to 16 minutes 
and 30 seconds before the crew is notified.\67\ If an engineer 
encounters a situation necessitating an emergency brake 
application during a loss of communication, the engineer may 
have to request an emergency brake application multiple times 
before the system responds.\68\ FRA raised concern with the 
safety risks associated with loss of communication between 
controlling locomotives and EOT and sought public comment in a 
January 2020 NPRM.\69\ It published a final rule in December 
2020 without mitigating communication loss; the final rule 
required that operating employees be trained on the limitations 
and use of the emergency application signal and the loss of 
communication indicator.\70\
---------------------------------------------------------------------------
    \66\ Federal Railroad Administration, Final Rule, Miscellaneous 
Amendments to Brake System Safety Standards and Codification of 
Waivers, Docket No. FRA-2018-0093, December 11, 2020, page 80551.
    \67\ Id. and 49 CFR 232.407
    \68\ Id. at 80551.
    \69\ Federal Railroad Administration, Notice of Proposed 
Rulemaking, Miscellaneous Amendments to Brake System Safety Standards 
and Codification of Waivers, Docket No. FRA-2018-0093, January 15, 
2020, page 2506.
    \70\ Federal Railroad Administration, Final Rule, Miscellaneous 
Amendments to Brake System Safety Standards and Codification of 
Waivers, Docket No. FRA-2018-0093, December 11, 2020, Page 80571.
---------------------------------------------------------------------------
    In 2020, NTSB reported on an October 2018 accident in 
Granite Canyon, WY, in which a Union Pacific (UP) freight train 
collided with a stationary UP freight train after cresting a 
hill and descending a grade for 13 miles, killing the 
locomotive engineer and conductor of the striking train.\71\ 
NTSB determined that the probable cause was the failure of the 
air brake system due to restricted air flow in the train's 
brake pipe and the failure of the EOT to respond to an 
emergency brake command.\72\ Contributing to the accident was 
failure to maintain the railcars in accordance with federal 
regulations, and the existence of regulatory and industry 
standards that permit loss of communication with EOTs for 
extended periods of time without warning the operating 
crew.\73\
---------------------------------------------------------------------------
    \71\ National Transportation Safety Board, Accident Report, NTSB/
RAR-20/05 PB2020-101016, Collision of Union Pacific Railroad Train 
MGRCY04 with a Stationary Train, Granite Canyon, Wyoming, October 4, 
2018, adopted December 29, 2020, Page 3.
    \72\ Id. at 10.
    \73\ Id.
---------------------------------------------------------------------------
    Also in 2020, NTSB reported on a CSX derailment in August 
2017 in Hyndman, PA, in which three derailed tank cars 
containing hazardous materials breached, resulting in a fire, 
three destroyed homes, and the evacuation of 1,000 
residents.\74\ This 10,612-foot long, 18,252 ton-train had no 
distributed power and the train encountered leaks in the 
braking system that were repaired enroute.\75\ No injuries or 
fatalities occurred, with NTSB determining the probable cause 
of the accident was the inappropriate use of hand brakes on 
empty rail cars to control train speed and the placement of 
blocks of empty rail cars at the front of the train leading to 
longitudinal and lateral forces and tread buildup, both of 
which were permissible under CSX operating practices.\76\
---------------------------------------------------------------------------
    \74\ National Transportation Safety Board, Accident Report, NTSB/
RAR-2020/04 PB2020-101012, CSX Train Derailment with Hazardous 
Materials Release, Hyndman, Pennsylvania, August 2, 2017, adopted 
November 23, 2020, Page 3.
    \75\ Id. at 15, 16.
    \76\ Id. at 10, 50.
---------------------------------------------------------------------------

TRACK INSPECTION AND AUTONOMOUS TRACK INSPECTION TECHNOLOGY:

    FRA regulates track safety under the minimum requirements 
of 49 CFR Part 213. The regulations specify four categories of 
track components requiring inspection, including track 
geometry, roadbed, track structure, and track appliances and 
track-related devices.\77\ The regulations require that a 
designated qualified person perform visual inspections, at 
frequencies determined by class of track, to monitor conditions 
for compliance.\78\ When a track inspector identifies a 
deviation from the minimum track safety standards, the 
inspector must verify the defect and take appropriate action to 
correct a verified defect, including immediate remediation in 
certain circumstances.\79\
---------------------------------------------------------------------------
    \77\ 49 CFR Subparts C, B, D, and E, respectively.
    \78\ 49 CFR 213.7.
    \79\ 49 CFR Part 213.
---------------------------------------------------------------------------
    Automated Track Inspection (ATI) systems measure and 
identify railroad track geometry defects.\80\ Since 1974, FRA 
has operated an Automated Track Inspection Program (ATIP) to 
supplement required visual track inspections to help railroads 
identify noncompliant track geometry conditions requiring 
repairs.\81\ ATI technologies can be equipped on locomotives or 
other rolling stock and travel over the track to be inspected 
via a train's movement over that track segment, including 
trains operating in revenue service.\82\ Under FRA's ATIP, the 
agency operates a fleet composed of a hi-rail vehicle and seven 
track geometry cars, two of which are pulled by freight trains 
in general revenue service.\83\
---------------------------------------------------------------------------
    \80\ Ian Jefferies, Association of American Railroads, Letter to 
Federal Railroad Administration Administrator Amit Bose, January 11, 
2022, Page 1.
    \81\ Office of Inspector General, U.S. Department of 
Transportation, FRA Uses Automated Track Inspections to Aid Oversight 
but Could Improve Related Program Utilization Goals and Track 
Inspection Reporting, April 27, 2022, https://www.oig.dot.gov/library-
item/38939, Page 8.
    \82\ Ian Jefferies, Association of American Railroads, Letter to 
Federal Railroad Administration Administrator Amit Bose, January 11, 
2022, Page 3.
    \83\ Office of Inspector General, U.S. Department of 
Transportation, FRA Uses Automated Track Inspections to Aid Oversight 
but Could Improve Related Program Utilization Goals and Track 
Inspection Reporting, April 27, 2022, https://www.oig.dot.gov/library-
item/38939, Page 8.
---------------------------------------------------------------------------
    Part 213 allows track owners to operate ATI systems; such 
technologies are not prohibited by current regulations.\84\ 
Beginning in 2018, six of the seven Class I railroads have 
operated with FRA's approval under 49 CFR 211.51 ATI testing 
programs that include temporary suspension from the visual 
inspection frequency intervals required by 49 CFR 213.233.\85\ 
The test programs permitted the carriers to reduce the 
frequency at which track inspectors conduct visual inspections 
while the carriers operated ATI systems on track in designated 
territories.\86\ At the end of 2021, the total average of Class 
I maintenance of way and structures employees--which includes 
those who inspect, repair, maintain, and construct track--has 
decreased by approximately 23 percent compared to 2014.\87\
---------------------------------------------------------------------------
    \84\ 49 CFR Part 213.
    \85\ FRA-2018-0091; FRA-2019-0099; FRA-2020-0031; FRA-2019-0099; 
FRA-2021-0044; FRA-2020-0013; FRA-2020-0014; FRA-2020-0056.
    \86\ Id.
    \87\ Data reported by Class I railroad carriers to the Surface 
Transportation Board, https://www.stb.gov/reports-data/economic-data/
employment-data/.
---------------------------------------------------------------------------
    FRA approved extensions of test programs, four of which are 
set to expire in November 2022.\88\ FRA approved a request for 
a limited waiver under 213.233 from one carrier, denied its 
request to expand the terms of that waiver, and denied a second 
carrier's waiver request.\89\ In the former case, an 
association representing state rail safety managers and the 
labor union representing workers who inspect and repair track 
filed comments voicing concerns and objection to the waiver, 
respectively. In the second waiver, the same labor union 
commented in opposition to the waiver.\90\ In the denial 
letters, FRA stated that ``given the ongoing RSAC [Railroad 
Safety Advisory Committee] task related to ATI, expanding the 
existing relief at this time is not justified.'' \91\ ``FRA 
notes that in carrying out this task, the RSAC will need to 
consider data not only from the [carriers' ATI Test Programs], 
but data from the relevant ATI Test Programs that are still 
underway at multiple railroads. FRA finds that short-circuiting 
this evaluation process on individual railroads is not in the 
public interest and consistent with railroad safety at this 
time.'' \92\
---------------------------------------------------------------------------
    \88\ FRA-2020-0031; FRA-2020-0013; FRA-2020-0014; FRA-2020-0056.
    \89\ FRA-2020-0064, FRA-2021-0044.
    \90\ Docket No. FRA-2020-0064-0011, available at Docket No. FRA-
20201-0044, available at https://www.regulations.gov/document/FRA-2021-
0044-0003.
    \91\ Federal Railroad Administration Letter to BNSF dated March 21, 
2022, FRA-2020-0064, Page 2.
    \92\ Federal Railroad Administration Letter to Norfolk Southern 
dated March 21, 2022, FRA-2021-0044, Page 2-3; Federal Railroad 
Administration Letter to BNSF dated March 21, 2022, FRA-2020-0064, Page 
2-3.
---------------------------------------------------------------------------

                              WITNESS LIST

PANEL I:

      The Honorable Amit Bose, Administrator, Federal 
Railroad Administration
      The Honorable Thomas B. Chapman, Member, National 
Transportation Safety Board

PANEL II:

      Mr. Roy L. Morrison, Director of Safety, 
Brotherhood of Maintenance of Way Employes Division, 
International Brotherhood of Teamsters
      Mr. Don Grissom, Assistant General President, 
Brotherhood of Railway Carmen Division, TCU/IAM
      Mr. Grady C. Cothen, Jr., Retired, Transportation 
Policy Consultant
      Mr. Nathan Bachman, Vice President of Sales & 
Business Development, Loram Technologies, Inc.
      Ms. Cindy Sanborn, Executive Vice President & 
Chief Operating Officer, Norfolk Southern Corporation, and 
Chair, Safety & Operations Management Committee, Association of 
American Railroads
      Mr. Jeremy Ferguson, President, Sheet Metal, Air, 
Rail, Transportation-Transportation Division

 
                     EXAMINING FREIGHT RAIL SAFETY

                              ----------                              


                         TUESDAY, JUNE 14, 2022

                  House of Representatives,
Subcommittee on Railroads, Pipelines, and Hazardous 
                                         Materials,
            Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:02 a.m. in 
room 2167 Rayburn House Office Building and via Zoom, Hon. 
Donald M. Payne, Jr. (Chair of the subcommittee) presiding.
    Members present in person: Mr. Payne, Mr. Malinowski, Mr. 
Huffman, Mr. Auchincloss, Mr. Crawford, Mr. Perry, Mr. Rodney 
Davis of Illinois, Mr. Bost, Mr. LaMalfa, Mr. Westerman, Mr. 
Stauber, Mr. Burchett, and Mr. Nehls.
    Members present remotely: Mr. Moulton, Mr. Garcia of 
Illinois, Ms. Strickland, Mrs. Napolitano, Mr. Johnson of 
Georgia, Ms. Titus, Mr. Carter of Louisiana, Mr. Weber of 
Texas, Mr. Fitzpatrick, Mr. Balderson, Mr. Johnson of South 
Dakota, and Mrs. Steel.
    Mr. Payne. The subcommittee will come to order.
    I ask unanimous consent that the chair be authorized to 
declare a recess at any time during today's hearing.
    Without objection, so ordered.
    I also ask unanimous consent that Members not on the 
subcommittee be permitted to sit with the subcommittee at 
today's hearing and ask questions.
    Without objection, so ordered.
    As a reminder, please keep your microphone muted unless 
speaking. Should I hear any inadvertent background noise, I 
will request that the Member please mute their microphone.
    To insert a document into the record, please have your 
staff email it to [email protected].
    Good morning. I would like to thank our witnesses for 
joining us today to share their testimony and expertise. I 
would also like to thank the ranking member, Mr. Crawford, for 
his commitment to making freight rail the safest way to ship 
goods. The safety of the rail industry remains one of the most 
important issues facing this subcommittee, and it is why we 
included several safety provisions in the INVEST Act.
    Today we will hear from two panels with unique insight into 
safe operations of the freight rail system. First, we will hear 
from Amit Bose, the Administrator of the Federal Railroad 
Administration, whose primary role is ensuring the safety of 
our Nation's railroads. He will be joined by Tom Chapman, a 
member of the National Transportation Safety Board, which 
investigates significant railroad accidents and recommends ways 
of preventing future ones. These two agencies play distinct 
roles in ensuring the safety of freight rail and protecting the 
workers and surrounding communities from rail accidents.
    Our second panel will be an opportunity to hear from 
representatives of the workers and railroads who confront these 
safety issues every day. The NTSB's 2021-2022 Most Wanted List 
of Transportation Safety Improvements includes a call to 
improve safety for rail workers. Their recommendations speak to 
recurring safety issues impacting rail workers. These include 
better track protection, proper training and job briefings, and 
access to protective equipment.
    Most importantly, it calls for work schedules and 
limitations to prevent workers from working overtime while 
fatigued. Railway worker fatigue is one of the most persistent 
and pressing issues facing our national transportation system. 
It is a condition we have known about for years but have not 
solved. Just last week, the FRA took a major step to address 
this with their final Fatigue Risk Management rule, and I look 
forward to hearing more about that from our witnesses today.
    The freight rail industry has lost nearly one-third of its 
workforce in the past 8 years. The workers who remain report 
that they are being worked harder with longer and more 
unpredictable hours. They say these conditions are worsening 
fatigue and making an industry that's inherently demanding even 
tougher to work for. Cutting labor costs may have made Wall 
Street happy, but it has left our national rail system more 
rigid and less able to respond to the ongoing supply chain 
shocks.
    The increased pressures on rail workers have made it harder 
for railroads to retain workers or recall them from furlough. 
It takes several months to fully train freight rail crew. These 
trainings cannot be rushed as we seek to fill vacancies created 
when the railroads laid off workers, both before and during the 
COVID-19 pandemic. Not having enough rail workers isn't just a 
problem with the lack of conductors and engineers; it is across 
the freight rail industry. This includes the carmen who inspect 
and repair railcars and maintenance-of-way workers who build, 
inspect, maintain, and repair track, bridges, and rights-of-
way.
    We are pleased that these workers are represented here 
today, and we look forward to hearing their testimony. It is 
through the diligent work of every actor in the rail space--
railway workers, railroads, and regulators--that freight rail 
has made significant strides to move goods safely across this 
Nation.
    There has been, however, a plateauing of safety 
improvements in recent years, and the Class I railroads' 
adoption of PSR has added new complications. This is why this 
committee is concerned: We are concerned that the recent 
attempts to reduce short-term costs have had a negative impact 
on safety practices and the historically proud railroad safety 
culture. And today's hearing is intended to consider some of 
these current issues.
    I would again like to thank all the witnesses for joining 
us today, and I now yield to the ranking member, Mr. Crawford, 
for his opening statement.
    [Mr. Payne's prepared statement follows:]

                                 
 Prepared Statement of Hon. Donald M. Payne, Jr., a Representative in 
   Congress from the State of New Jersey, and Chair, Subcommittee on 
             Railroads, Pipelines, and Hazardous Materials
    Good morning.
    I'd like to thank our witnesses for joining us today to share their 
testimony and expertise.
    I'd also like to thank Ranking Member Crawford for his commitment 
to making freight rail the safest way to ship goods.
    The safety of the rail industry remains one of the most important 
issues facing this subcommittee and it is why we included several 
safety provisions in the INVEST Act.
    Today we will hear from two panels with unique insight into the 
safe operations of the freight rail system.
    First, we will hear from Amit Bose, the Administrator of the 
Federal Railroad Administration, whose primary role is ensuring the 
safety of our nation's railroads.
    He'll be joined by Tom Chapman, a Member of the National 
Transportation Safety Board, which investigates significant railroad 
accidents and recommends ways on preventing future ones.
    These two agencies play distinct key roles in ensuring the safety 
of freight rail and protecting the workers and the surrounding 
communities from rail accidents.
    Our second panel will be an opportunity to hear from 
representatives of the workers and railroads, who confront these safety 
issues every day.
    The NTSB's 2021-2022 Most Wanted List of Transportation Safety 
Improvements includes the call to improve safety for rail workers.
    Their recommendations speak to recurring safety issues impacting 
rail workers.
    These include better track protection, proper training and job 
briefings, and access to protective equipment.
    Most importantly, it calls for work schedules and limitations that 
prevent workers from working overtime while fatigued.
    Railway worker fatigue is one of the most persistent and pressing 
issues facing our national transportation system.
    It's a condition we've known about for years but haven't solved.
    Just last week the FRA took a major step to address this with their 
final Fatigue Risk Management Rule, and I look forward to hearing more 
about that from our witnesses today.
    The freight rail industry has lost nearly a third of its workforce 
in the past 8 years.
    The workers who remain report they are being worked harder, with 
longer and more unpredictable hours.
    They say these conditions are worsening fatigue and making an 
industry that's inherently demanding even tougher to work for.
    Cutting labor costs may have made Wall Street happy, but it's left 
our national rail system more rigid and less able to respond to the 
ongoing supply chain shocks.
    The increased pressures on railway workers have made it harder for 
the railroads to retain workers or recall them from furlough.
    It takes several months to fully train freight rail crew.
    These trainings cannot be rushed as we seek to fill vacancies 
created when the railroads laid off workers--both before and during the 
COVID-19 pandemic.
    Not having enough rail workers isn't just a problem with the lack 
of conductors and engineers, it is across the freight rail industry.
    This includes the carmen who inspect and repair railcars and 
maintenance of way workers who build, inspect, maintain, and repair 
track, bridges, and rights of way.
    We are pleased that these workers are represented here today, and 
we look forward to their testimony.
    It is through the diligent work of every actor in the rail space--
railway workers, railroads, and regulators--that freight rail has made 
significant strides to move goods safely across the nation.
    There has been, however, a plateauing of safety improvements in 
recent years, and the Class I railroads' adoption of PSR has added new 
complications.
    This is why this committee is concerned--we are concerned that 
recent attempts to reduce short-term costs have had a negative impact 
on safety practices and the historically proud railroad safety culture.
    And today's hearing is intended to consider some of those current 
issues.
    I would again like to thank all our witnesses for joining us today, 
and I now yield to the Ranking Member for his opening statement.

    Mr. Crawford. Thank you, Mr. Chairman. I appreciate you 
holding this hearing today.
    And I thank our witnesses for participating as well.
    This hearing continues this subcommittee's focus on 
important aspects of railroad industry safety. Today, we are 
specifically focusing on safety issues in the freight rail 
industry.
    America's freight rail ranks as one of the safest means of 
transporting goods in the world. According to the Association 
of American Railroads, train accidents were down 33 percent 
between the years 2000 and 2020, and accidents involving 
hazardous materials were down 60 percent.
    These gains in safety build towards the ultimate target of 
zero accidents. Monitoring and protecting our 140,000-mile 
freight rail network is no easy job. Improving highway-rail 
grade crossing protections, reducing human error, and 
supporting innovative new drone and automated safety 
technologies can all contribute toward reaching the zero 
accident goal.
    Specifically, we must continue to encourage the development 
of automated track inspection safety technology, which has been 
shown to decrease accidents, identify new safety issues, and 
free up safety inspectors to focus on other important duties.
    I recently sent a letter to the Federal Railroad 
Administration raising concerns about its denials of waivers to 
continue testing automated track inspection technology. I ask 
for unanimous consent to enter this letter into the record.
    Mr. Payne. Without objection.
    [The information follows:]

                                 
  Letter of June 10, 2022, to Hon. Amit Bose, Administrator, Federal 
 Railroad Administration, from Hon. Eric A. ``Rick'' Crawford, Ranking 
Member, Subcommittee on Railroads, Pipelines, and Hazardous Materials, 
       Submitted for the Record by Hon. Eric A. ``Rick'' Crawford
    Committee on Transportation and Infrastructure,
                             U.S. House of Representatives,
                                              Washington, DC 20515,
                                                     June 10, 2022.
The Honorable Amit Bose,
Administrator,
Federal Railroad Administration, 1200 New Jersey Avenue, SE, 
        Washington, DC 20590.
    Dear Administrator Bose:
    I write to express deep concerns about recent safety policy changes 
by the Federal Railroad Administration (FRA) which likely limit the use 
of automated track inspection (ATI) technology. FRA's recent decisions 
to deny and limit the use and development of ATI technology lack a 
basis in furthering safety and track inspection improvements and seem 
politically motivated to appease labor interests.\1\
---------------------------------------------------------------------------
    \1\ See Letter from Karl Alexy, Assoc. Adm'r. For R.R. Safety & 
Chief Safety Officer, FRA to John Cech, Vice President (VP), BNSF Ry. 
(Mar. 21, 2022) (on file with Committee) [hereinafter John Cech 
Letter]; Letter from Karl Alexy, Assoc. Adm'r for R.R. Safety & Chief 
Safety Officer, FRA to Thomas E. Zoeller, Gen. Counsel, NS (Mar. 21, 
2022) (on file with Committee) [hereinafter Thomas Zoeller Letter].
---------------------------------------------------------------------------
    For over thirty years, FRA supported the continued growth of 
automated track inspection technology through FRA's own Automated Track 
Inspection Program (ATIP).\2\ ATIP encourages the use of new 
technologies to aid in track safety inspections that identify safety 
issues that visual inspections may miss. Specifically, ATIP ``helps 
America's railroads improve railroad quality and safety under statutes 
mandated by Congress.'' \3\ Information collected by ATIP is used by 
the government and the rail industry to improve railroad safety. As FRA 
states:
---------------------------------------------------------------------------
    \2\ History of ATIP, United States Dep't of Transp. (USDOT), 
available at https://railroads.dot.gov/track/automated-track-
inspection-program-atip/history-atip. [hereinafter History of ATIP].
    \3\ ATIP Overview, USDOT, available at https://railroads.dot.gov/
track/automated-track-inspection-program-atip/atip-overview.

        The track data collected by ATIP is used by FRA, railroad 
        inspectors and railroads to assist and assure track safety is 
        being maintained by setting priorities for their respective 
        compliance activities. Also, the data is used by FRA to assess 
        track safety trends within the industry. Immediately following 
        ATIP track surveys, the railroads use the data to help locate 
        and correct exceptions found. Often railroads use the ATIP data 
        as a quality assurance check on their track inspection and 
        maintenance programs.\4\
---------------------------------------------------------------------------
    \4\ History of ATIP, supra note 2.

    Only two years ago, FRA extolled the virtues of research and 
development of artificial intelligence (AI) such as ATI for improving 
railroad safety. As an FRA official noted, ``[w]ith the use of AI and 
other technologies, there is great potential for railroads to further 
reduce the occurrence of high-consequence accidents and derailments 
altogether. To realize such a future for rail transportation, RD&T is 
focused on dedicated research initiatives aimed at Improving, 
Implementing and Inspiring[.]'' \5\
---------------------------------------------------------------------------
    \5\ Jay P. Baillargeon, FRA RD&T: Using AI to Improve Safety, 
Railway Age, Aug. 24, 2020, https://www.railwayage.com/analytics/fra-
rdt-using-ai-to-improve-safety/?RAchannel=home.
---------------------------------------------------------------------------
    Recognizing the ability of this technology to enhance safety, Class 
I freight railroads obtained FRA approvals to test the combination of 
ATI technology and manual track inspections by gradually reducing 
manual visual inspections required under a 1971 rulemaking.\6\ Despite 
this progress, FRA's recent decisions to stop or limit ATI test 
programs implemented by BNSF Railway and Norfolk Southern (NS) freight 
railroads raise troubling questions about FRA's continued commitment to 
promoting safety and security technology and the influence of labor 
groups seeking to protect special interests.\7\
---------------------------------------------------------------------------
    \6\ Chris Woodward, Why Is Biden Admin. Blocking Increased Rail 
Safety Program?, Inside Sources, May 4, 2022, https://
insidesources.com/why-is-biden-admin-blocking-increased-rail-safety-
program/.
    \7\ See John Cech Letter, supra note 1; Thomas Zoeller Letter, 
supra note 1.
---------------------------------------------------------------------------
    Regarding BNSF, in 2018 FRA approved an ATI test program 
specifically ``designed to test the use of unmanned autonomous track 
geometry measurement systems (ATGMS) for track inspection as a viable 
means to supplement and decrease the frequency of manual visual 
inspections.'' \8\ On July 28, 2020, BNSF petitioned FRA seeking a 
regulatory waiver that would allow it to continue its ATI testing.\9\ 
FRA published two notices in the Federal Register seeking comments on 
BNSF's waiver petition, and received comments from two groups: the 
Association of State Railroad Safety Managers and the Brotherhood of 
Maintenance of Way Employees Division/IBT (BMWED). Both opposed 
granting a waiver to BNSF.\10\ Nonetheless, on January 19, 2021, FRA 
generally rejected the claims made by the labor unions and granted 
BNSF's petition for waiver, in part, allowing BNSF to continue its ATI 
waiver for five years.\11\ In approving BNSF's petition, FRA itself 
noted that ATI inspections detect geometry defects ``more precisely and 
accurately than visual inspections'' and found that granting the waiver 
was in the public interest and consistent with railroad safety.\12\ As 
recently as November 2021, FRA noted the ``successful results of the 
[BNSF] test program'' to Congress and explained that BNSF's waiver was 
granted due to cited improvements under the ``BNSF track geometry 
measurement test program based on the established defect metric, FRA 
monitoring procedures, and consistency of number of defects located by 
visual track inspection.'' \13\
---------------------------------------------------------------------------
    \8\ See Docket No. FRA-2020-0064-0011, available at https://
www.regulations.gov/docket/FRA-2020-0064/document.
    \9\ Id.
    \10\ Id.
    \11\ Id.
    \12\ Id.
    \13\ FRA, Report to Congress: Automatic Track Geometry Measurement 
System Technology Test Programs at 5 n.12, 9 (2021), available at 
https://railroads.dot.gov/elibrary/report-/congress-automatic-track-
geometry-measurement-system-technology-test-programs.
---------------------------------------------------------------------------
    However, on June 15, 2021, BNSF again petitioned FRA based upon the 
safety successes occurring under the January 19, 2021, waiver and 
sought an expansion to two new ATI territories.\14\ BNSF supplemented 
this petition with two letters highlighting the improved safety 
benefits and success of BNSF's current ATI program as support.\15\ FRA 
published notice of BNSF's petition in the Federal Register, which 
elicited only one comment, from BMWED. As before, BMWED generally 
opposed granting the expansion envisioned by the waiver on the grounds 
that it ``does not feel'' \16\ the ATI technology provided an adequate 
level of safety. On March 22, 2022, FRA found that expansion of the 
waiver ``is not justified,'' \17\ and dismissed BNSF's petition. 
Notably, FRA did not dispute ATI's safety benefits, but merely asserted 
that an expansion of this test program was allegedly unnecessary since 
FRA had already collected sufficient data from BNSF to evaluate 
ATI.\18\
---------------------------------------------------------------------------
    \14\ John Cech Letter, supra note 1.
    \15\ Id.
    \16\ Id.; see also Letter from Freddie N. Simpson, President, BMWED 
to USDOT (Aug. 23, 2021) (on file with Committee).
    \17\ Id.
    \18\ Id.
---------------------------------------------------------------------------
    Like BNSF, Norfolk Southern (NS) filed a petition with FRA on March 
22, 2021, seeking a waiver of manual track inspection regulations to 
permit the pairing of ATI technology with the frequency of manual 
inspections that successfully demonstrated significant gains in track 
quality and safety during NS's test program.\19\ At the time the waiver 
petition was filed, NS was completing the final phase of its ATI test 
program.\20\ NS noted increased benefits of combining ATI and manual 
inspections, and reported: ``Almost all geometry defects found during 
the Test Program were discovered by the [ATI] equipment rather than by 
human inspectors.'' \21\
---------------------------------------------------------------------------
    \19\ Letter from Ed Boyle, VP NS to Hon. Amit Bose, Deputy Adm'r, 
FRA (Jan. 6, 2022) (on file with Committee).
    \20\ Id.
    \21\ Id.
---------------------------------------------------------------------------
    After waiting over nine months from initial filing of its waiver 
petition, NS pleaded for FRA action. In a January 6, 2022, letter 
seeking approval, NS explained ``[e]very day that passes without 
approval of Norfolk Southern's Petition is another day that safety 
benefit is not realized anywhere on Norfolk Southern's system . . .'' 
\22\ Similar to BNSF's ATI waiver petitions, BMWED submitted comments 
opposing the petition, despite admitting the safety benefits of NS's 
ATI technology.\23\ In defiance of FRA regulations requiring the FRA 
Safety Board to decide waiver petitions within nine months, FRA denied 
NS's petition a full year later, citing excuses similar to those used 
in denial of BNSF's petition.\24\
---------------------------------------------------------------------------
    \22\ Id.
    \23\ Id.
    \24\ Thomas Zoeller Letter, supra note 1.
---------------------------------------------------------------------------
    FRA's decisions to discourage the continued use and expansion of 
proven ATI safety technology deny the demonstrated safety benefits for 
freight rail operations and lack a reasonable justification linked to 
improving industry safety and security. As one rail observer noted, the 
BNSF decision ``makes no sense . . . whatsoever'' \25\ and signals that 
``FRA seems to have made an about-face with its technology 
initiatives.'' \26\ Furthermore, given the only opposition to the 
continued ATI programs came from BMWED, denial of the waivers seem less 
driven by legitimate safety concerns with ATI and instead, ``may be 
politically motivated'' to satisfy the special interests of labor 
unions.\27\
---------------------------------------------------------------------------
    \25\ William C. Vantuono, BNSF, FRA Automated Track Inspection 
Dispute in Federal Court, Railway Age, Apr. 21, 2022, https://
www.railwayage.com/regulatory/bnsf-fra-automated-track-inspection-
dispute-in-federal-court/?RAchannel=home.
    \26\ Id.
    \27\ Id.
---------------------------------------------------------------------------
    In light of the above information and concerns, please provide the 
following information by June 23, 2022:
    1.  Please provide a written explanation that details FRA's current 
process to decide railroad waiver requests, including what role the 
Safety Board plays in the decision-making process. Please also include 
any standard operating procedures, memos, or internal process documents 
which relate to this decision process.
      a.  Please outline the Administrator's role, if any, in granting 
or denying a waiver petition in the first instance under 49 C.F.R. 
Sec.  211.41.
      b.  Please outline the Administrator's role, if any, regarding 
considering petitions for reconsideration of the grant or denial of a 
waiver, per 49 C.F.R. Sec. Sec.  211.41(f) & 211.57-.59.
      c.  Please outline and explained what factors are considered when 
the Administrator is weighing whether to overrule a recommendation of 
the safety board?
      d.  Please explain in detail changes made to the process to 
decide railroad waiver requests since 2021 and the justification for 
such changes.
      e.  Please explain what steps have been taken to formally notify 
stakeholders of these changes. If notice has not been provided, please 
explain the justification.
    2.  Please provide a written explanation as to whether the FRA 
Safety Board believes it is fulfilling the requirements of 49 C.F.R. 
Sec.  211.41 when it is considering waivers, including the nine-month 
timeline under that regulation.
      a.  Does FRA have adequate resources and staff to timely evaluate 
and decide railroad waiver requests?
      b.  If not, what is impacting the agency's overall ability to 
timely issue waiver decisions since 2021, and what additional resources 
might be needed to ensure decisions are made in the regulatorily 
required time periods.
    3.  Does FRA believe any deficiencies existed in the transparency 
of the waiver process prior to 2021?
      a.  If so, what specific steps has FRA taken improve the 
transparency in the process?
      b.  Please provide any standard operating procedures, memos, or 
internal documents related to the waiver process prior to 2021.
    4.  Please outline and provide written justifications for each step 
the FRA taken since 2021 to ensure the efficient handling of waiver 
requests.
      a.  Specifically, please explain the steps that FRA has taken 
with stakeholders to ensure the efficient handling of waiver requests, 
including which stakeholders FRA is working with.
    5.  What steps are the FRA taking to encourage and support 
implementation of new technologies to improve safety for freight 
railroads? Please provide specific examples of what areas the FRA is 
examining as well as specific technologies that are under examination.
      a.  Does the FRA support freight railroads investing their own 
funds in voluntary safety advancements?
      b.  How does FRA incentivize and encourage voluntary industry 
efforts to advance safety and modernize severely outdated FRA 
regulations to realize better safety? Please explain in detail the 
steps you have taken, including any supporting documents.
      c.  What is FRA doing from a regulatory perspective to encourage 
railroads to continue to invest in and develop these technologies, 
understanding the substantial cost to do so?
      d.  If a new approach to rail safety driven by an innovative 
technology solution is shown through data to improve overall railroad 
safety, are there other non-safety considerations that would cause the 
FRA to delay or reject such an approach?
    6.  FRA has acknowledged to Congress the safety benefits of ATI 
programs. Why did FRA recently deny two railroad ATI waiver requests, 
one a year after it was submitted? Given that four test programs are 
still underway and collecting data, what led to FRA's recent waiver 
denial letters being issued?
      a.  Given the safety benefits involved, why would FRA let 
existing ATI test program approvals expire without renewing them in 
November 2022? Why wouldn't test programs and waivers continue to be 
granted and renewed until a final rule adopting this safety-improving 
issue can be completed?
      b.  While NS's waiver petition was pending, FRA denied NS's 
request to extend its test program in October 2021 on the ground that 
an extension ``would not likely result in new, significant data.'' Yet 
when FRA denied NS's waiver in March of 2022, it pointed to a lack of 
``conclusive data'' demonstrating that the risks of reducing manual 
inspections were effectively mitigated. As FRA's denial of the waiver 
was based on a lack of ``conclusive data,'' please explain the process 
FRA engages in for expressing concerns or changes during extension of 
test programs.
        i.  Please specifically provide the Committee the information 
that was provided by NS and the FRA regarding this extension in October 
2021.
        ii.  Specifically, please provide a written explanation of 
whether it complied with this FRA's extension process, and whether FRA 
provided NS with any options to cure the lack of conclusive data or 
further information on conditions that would have been necessary.
      c.  Why is FRA not moving to rulemaking now to address these 
safety-improving programs, given the present RSAC process could take 
years and may never result in reasonable consensus with involved rail 
labor organizations?
    7.  The USDOT's fiscal year (FY) 2022 budget requests $16.5 million 
for the FRA ATI Program (ATIP). The request specifically notes 
``defective track is one of the most frequent causes of derailments. 
Identifying track defects and other precursor conditions is the primary 
focus of FRA's ATIP.'' \28\ The budget request goes on to explain that 
the requested funding would be used for FRA's own ten ATIP vehicles, 
but also ``to continue to validate the railroads' autonomous track 
inspection programs.'' \29\
---------------------------------------------------------------------------
    \28\ FRA, FRA Budget Estimates 2022 at 32 (2022), available at 
https://www.transportation.gov/sites/dot.gov/files/2021-05/FRA-FY-2022-
Budget-Estimates-FINAL.PDF.
    \29\ Id.
---------------------------------------------------------------------------
      a.  If the FRA receives the requested funding for ATIP, will it 
commit to continue to use part of the funding to continue to validate 
the railroads' autonomous track inspection programs?
      b.  If yes, do you believe the FRA would then need to approve 
and/or continue the pending railroad ATI waivers requests and test 
programs? Please explain in detail.
      c.  If no, please explain in detail the justifications for FRA's 
reversal. Please include a detailed list of other FY 2022 budget 
request that the FRA no longer plans to pursue and the justification.
    8.  Another promising safety innovation, which is particularly 
important during the COVID pandemic, is 3-D virtual training. These 
programs could also be helpful in ensuring employee re-training and 
availability of training in the wake of supply chain challenges. After 
14 months, the FRA recently denied railroad waiver requests even though 
they have previously approved similar requests. Please explain FRA's 
reasoning for the reversal.
    9.  In addition to safety improvements, new technologies also have 
the potential to provide environmental benefits. However, FRA has 
changed its decades-long precedent of expeditiously reviewing and 
approving energy management system advancements under 49 CFR Part 229, 
Subpart E--Locomotive Electronics, and instead, without explanation, is 
now conducting them under 49 CFR Part 236, Subpart H--Standards for 
Processor-Based Signal and Train Control Systems. Please explain why 
FRA made change.
      a.  Prior to this change, were stakeholders consulted? If yes, 
please explain which stakeholders and the method for consultation.
      b.  Please explain what steps have been taken to notify 
stakeholders of these changes. If notice has not been provided, please 
explain the justification.
      c.  Provide specific examples of freight railroad technologies 
being explored by the FRA that provide environmental benefits.

    If you have questions, please contact Republican Staff on the 
Subcommittee on Railroads, Pipelines, and Hazardous Materials.
        Sincerely,
                                 Eric A. ``Rick'' Crawford,
                         Ranking Member, Subcommittee on Railroads,
                                Pipelines, and Hazardous Materials.

    Mr. Crawford. Thank you, Mr. Chairman.
    And, finally, there are multiple Federal grant programs 
that can help communities and railroads upgrade and improve 
their tracks, highway-rail grade crossings, and general network 
infrastructure in ways that can have dramatic impacts on 
safety. We must ensure that this grant funding is open and 
accessible to all qualified applicants in need and that the 
money is distributed in a fair and transparent manner, 
including to both rural and urban areas.
    I commend the chair for holding this hearing today, and I 
look forward to hearing from our witnesses.
    And, Mr. Chairman, with that, I yield the balance of my 
time.
    [Mr. Crawford's prepared statement follows:]

                                 
Prepared Statement of Hon. Eric A. ``Rick'' Crawford, a Representative 
      in Congress from the State of Arkansas, and Ranking Member, 
     Subcommittee on Railroads, Pipelines, and Hazardous Materials
    Thank you, Chair Payne, for holding this hearing, and thank you to 
our witnesses for participating. This hearing continues this 
Subcommittee's focus on important aspects of railroad industry safety. 
Today we are specifically focusing on safety issues in the freight 
railroad industry.
    America's freight railroads rank as one of the safest means of 
transporting goods in the world. According to the Association of 
American Railroads, train accidents were down 33 percent between 2000 
and 2020, and accidents involving hazardous materials were down 60 
percent.
    These gains in safety build towards the ultimate target of zero 
accidents. Monitoring and protecting our 140,000-mile freight rail 
network is no easy job. Improving highway-rail grade crossing 
protections, reducing human error, and supporting innovative new drone 
and automated safety technologies can all contribute towards reaching 
the zero-accident goal.
    Specifically, we must continue to encourage the development of 
automated track inspection safety technology, which has been shown to 
decrease accidents, identify new safety issues, and free up safety 
inspectors to focus on other important duties.
    I recently sent a letter to the Federal Railroad Administration 
raising concerns about its denials of waivers to continue testing 
Automated Track Inspection technology. I ask for unanimous consent to 
enter this letter into the record.
    Finally, there are multiple federal grant programs that can help 
communities and railroads upgrade and improve their tracks, highway-
rail grade crossings, and general network infrastructure in ways that 
can have dramatic impacts on safety. We must ensure that this grant 
funding is open and accessible to all qualified applicants in need, and 
that the money is distributed in a fair and transparent manner, 
including to both rural and urban areas.
    I commend the Chair for holding this hearing today and look forward 
to hearing from our witnesses.

    Mr. Payne. The gentleman yields back.
    OK. I guess we can move forward. I would like to now 
welcome our witnesses for the first panel: the Honorable Amit 
Bose, Administrator, Federal Railroad Administration, and then 
the Honorable Thomas B. Chapman, member of the National 
Transportation Safety Board.
    Thank you for joining us today, and I look forward to your 
testimony.
    Without objection, our witnesses' full statements will be 
included in the record. Since your written testimony has been 
made a part of the record, the subcommittee requests that you 
limit your oral testimony to 5 minutes.
    Administrator Bose, you may proceed.

 TESTIMONY OF HON. AMIT BOSE, ADMINISTRATOR, FEDERAL RAILROAD 
 ADMINISTRATION; AND HON. THOMAS B. CHAPMAN, MEMBER, NATIONAL 
                  TRANSPORTATION SAFETY BOARD

    Mr. Bose. Chairman Payne, Ranking Member Crawford, and 
members of the subcommittee, thank you for the opportunity to 
testify today. Returning to this committee where I was a 
staffer who worked on TEA-21 and WRDA and stood along the wall, 
as many of the staffers will do today, is an honor.
    Safety, including the safety of railroad employees, 
railroad passengers, and communities through which railroads 
operate, is FRA's top priority. FRA carries out its mission in 
many ways, including through our broad regulatory enforcement 
and oversight program of inspections and audits. FRA also 
conducts accident and incident investigations, scientific 
research, and data collection and analysis, and provides 
extensive technical assistance.
    FRA also reviewed the safety integration plans of the 
largest rail company transactions before the Surface 
Transportation Board in several decades. The Bipartisan 
Infrastructure Law provides an unprecedented investment in 
America's rail transportation system. It includes dedicated and 
sustained funding that enables FRA to continue its core safety 
mission while broadening its rail development and investment 
portfolio. Among them are substantial funds to deter and 
mitigate two longstanding rail safety issues: highway-rail 
grade crossing collisions and trespassing.
    Through other grant programs, FRA will support training and 
education for our industry's workforce to help ensure 
appropriate job protections for those working on federally 
funded rail projects. With these expected historic investments 
in our Nation's rail system, supporting the industry's 
workforce in safely and efficiently operating and maintaining 
the current system while preparing for the future is now more 
critical than ever.
    FRA's approach to safety is data-driven, risk-based, and 
collaborative. The full implementation of Positive Train 
Control technology was significant. FRA continues monitoring 
PTC, including software updates, training, and integration into 
operations. With the issuance of the Fatigue Risk Reduction 
Program and System Safety Program rules, railroads have been 
required to systemically identify, prioritize, and mitigate 
risks, and to actively promote continuous safety improvement 
and strengthen their safety culture by actively engaging the 
workforce.
    FRA continues to work on other significant regulatory 
initiatives mandated by Congress and to address known hazards 
more broadly. For example, in February, FRA expanded the scope 
of the agency's alcohol and drug control regulations, and we 
expect to issue soon a final rule dedicated to locomotive 
recording devices. Yesterday, FRA published a final rule 
requiring certain railroads to develop and implement Fatigue 
Risk Management Programs as a part of their larger Risk 
Reduction and System Safety Programs.
    Aside from these initiatives, FRA is seeking to engage all 
stakeholders in consensus-based safety improvements and 
rulemaking through the Railroad Safety Advisory Committee, 
which we rechartered in late 2021. It will meet again on June 
27.
    In April of this year, FRA held its first-ever Track and 
Railroad Workplace Safety Symposium, during which over 600 
technical experts shared best practices. Similarly, in the 
spirit of partnership and collaboration, FRA is seeking to 
expand the Confidential Close Call Reporting System, C3RS, 
which enables railroad employees to report close calls and 
unsafe events and conditions without fear of reprisal or 
discipline.
    As we look forward, FRA already had several initiatives 
underway included in the Bipartisan Infrastructure Law. In late 
2019, FRA established an online portal to receive, store, and 
retrieve public reports on blocked highway-rail grade 
crossings. And, just today, we issued a request for information 
to solicit public input on how to make that tool even more 
useful.
    Other efforts are well underway to implement the Bipartisan 
Infrastructure Law sections related to high-speed rail 
operations and pre-revenue service safety validation plans. 
With respect to infrastructure investments, FRA just announced 
the CRISI grants, totaling nearly $369 million for 46 projects 
across 32 States, and we exceeded the bipartisan law's 25-
percent rural set aside.
    In conclusion, FRA is committed to continuing to lead, 
promote, and strengthen efforts among all stakeholders to 
achieve meaningful and continuous improvements in rail 
transportation safety. I look forward to your questions. Thank 
you.
    [Mr. Bose's prepared statement follows:]

                                 
 Prepared Statement of Hon. Amit Bose, Administrator, Federal Railroad 
                             Administration
    Chairman Payne, Ranking Member Crawford, and Members of the 
Subcommittee:
    Thank you for the opportunity to testify today to discuss rail 
safety. The mission of the Federal Railroad Administration (FRA) is to 
enable the safe, reliable, and efficient movement of people and goods 
for a strong America, now and in the future. Safety--including the 
safety of railroad employees, rail passengers, and the communities 
through which railroads operate--is FRA's top priority. FRA carries out 
its mission in many ways, including through our broad regulatory 
enforcement and oversight program, accident and incident 
investigations, providing extensive technical assistance, scientific 
research, and data collection and analysis. We also engage and partner 
with both public and private stakeholders to identify and address 
critical safety issues that affect railroad operations, railroad 
employees, freight rail customers, the traveling public, and local 
communities.
    Additionally, FRA administers a variety of discretionary grant 
programs. These programs have traditionally focused on funding to 
improve the condition and performance of rail infrastructure. However, 
with the passage of the Bipartisan Infrastructure Law (BIL), these 
programs now include dedicated federal funds to support the 
implementation of innovative solutions to deter and mitigate two 
longstanding and vexing rail safety issues--highway-rail grade crossing 
collisions and trespassing. The BIL also enables FRA to support the 
industry's workforce by making funds available for training and 
education, and for ensuring appropriate job protections for employees 
impacted by federally funded rail projects.
    The BIL provides dedicated and sustained resources that enable FRA 
to continue to focus on its safety mission while broadening its efforts 
on its rail development and investment portfolio to offer safer and 
more convenient travel options for future generations. FRA recognizes 
that the BIL is an unprecedented investment in our country's intermodal 
transportation system, including freight and passenger rail which are 
integral to the national transportation system. It presents a unique 
opportunity for FRA and other stakeholders to make wise investments in 
critical infrastructure, technology, and human capital that will make 
it safer, more reliable, resilient, sustainable, and equitable. FRA is 
committed to using the BIL's resources to bolster and expand its 
existing safety programs, and where appropriate, to work with industry, 
labor, and others to develop and implement new and innovative solutions 
to address rail safety challenges.
    Despite improvements in overall rail safety statistics elsewhere 
and the implementation of advanced technologies such as PTC, the number 
of grade crossing and trespassing incidents occurring over the last 
decade has increased--grade crossing collisions by 1% and trespassing 
casualties by 35%. Together these events account for more than 95% of 
all rail-related fatalities over the past decade. In addition, human-
factor accidents remain a concern. FRA recognizes the opportunities the 
BIL presents to better enable the agency, and other stakeholders, to 
address these occurrences. Today, I would like to highlight our most 
significant regulatory and safety initiatives, including implementation 
of several key safety provisions of the BIL, and our strategy for 
ensuring BIL funding is appropriately directed to the most pressing 
rail safety issues. With this unprecedented investment in our Nation's 
rail system, it is now more critical than ever to ensure that we enable 
the industry's workforce to safely and efficiently operate and maintain 
the current system while preparing for the future. Accordingly, I will 
also highlight a few of FRA's key workforce development efforts.
            FRA's Priority Regulatory and Safety Initiatives
    FRA's approach to safety is data-driven, risk-based, proactive, and 
collaborative. The full implementation of Positive Train Control (PTC) 
technology on all 57,536 required freight and passenger railroad route 
miles, has made railroad transportation safer. FRA will continue 
monitoring PTC, including software updates, training and integration 
into operations. With the issuance of its Risk Reduction Program (RRP) 
and System Safety Program (SSP) rules, railroads have been required to 
implement a comprehensive, system-oriented approach to improving 
safety. Although implementation of these rules is just beginning, they 
bring the tried-and-true principles of safety management systems to the 
rail industry. The rules require railroads to systematically identify, 
prioritize, and mitigate risks in their operating environment and to 
actively promote continuous safety improvement and strengthen safety 
culture.
    Currently, all Class I railroads and passenger rail operations 
required to submit RRP and SSP plans have done so, and FRA is working 
with them and labor organizations to provide technical assistance to 
ensure the railroads successfully conducted appropriate consultation 
with directly affected employees during development of the plans. The 
consultation process of FRA's RRP and SSP rules, as well as the fatigue 
rule discussed below, requires engagement between railroads and 
directly affected employees at all stages of plan development and 
program implementation. To this end, and based on lessons learned from 
initial implementation of the RRP and SSP rules, in the upcoming weeks, 
FRA will provide written guidance on its expectations for the ongoing 
consultation requirements under each of these rules.
    Even as industry works to identify and prioritize risk on 
individual railroad systems, FRA continues to work on regulatory 
initiatives mandated by Congress and to address known hazards on a 
broader basis. For example, in February of this year, FRA published a 
final rule implementing Congress's mandate to expand the scope of the 
agency's alcohol and drug control regulations to cover railroad 
mechanical employees. Soon, FRA expects to issue a final rule 
responsive to a Congressional mandate related to locomotive recording 
devices.
    On June 13, 2022, FRA published a final rule addressing railroad 
employee fatigue. This rule responds to the same Congressional mandate 
as FRA's RRP and SSP rules and requires railroads to develop and 
implement Fatigue Risk Management Programs (FRMPs) as part of their 
larger risk reduction programs. FRMPs are railroad-specific, 
comprehensive safety programs involving the systematic identification 
and evaluation of fatigue-related safety hazards among railroad 
employees. Once the hazards are identified and evaluated, a railroad 
must take action to reduce, if not eliminate, the associated risks. 
Although the rule identifies the minimum categories of risk that a 
railroad must consider including in its FRMP (i.e., general health and 
medical conditions that may affect employees' fatigue levels, 
scheduling issues, and job-specific characteristics), the rule is 
results-oriented. Railroads' FRMPs must be designed and implemented to 
effectively reduce the fatigue experienced by employees and to reduce 
the probability of fatigue-related accidents and incidents.
    As noted above, consistent with the requirements of FRA's RRP and 
SSP rules, the fatigue rule requires railroads to consult with directly 
affected employees during all stages of development and implementation 
of the required FRMP. Recognizing that fatigue is a complex issue, the 
rule is only one facet of FRA's ongoing efforts to address the issue. 
For example, FRA recently conducted a survey of locomotive engineers 
and conductors to gain an in-depth understanding of the factors that 
contribute to fatigue and the resulting impacts on safety. Survey 
questions addressed potential contributing factors to fatigue, such as 
work schedules, commute times, and work/life balance. FRA will use the 
survey results to identify fatigue-related research needs and the 
survey's descriptive data will help FRA facilitate mutually beneficial 
solutions between railroad workers and management. Thus, even after 
issuance of this rule, FRA will continue to gather and analyze data to 
better understand the root causes of railroad employee fatigue and its 
effects on safety.
    As required by the BIL, FRA will continue to work with both rail 
and labor stakeholders to identify parties willing to participate in a 
pilot project under 49 U.S.C. Sec.  21109 to evaluate the fatigue 
implications of certain railroad employee scheduling practices. FRA 
will also continue to conduct fatigue analyses as part of its 
investigations of major rail accidents suspected of being human-factor 
caused. FRA will continue our review and analysis of railroads' 
attendance and other scheduling policies to ensure they do not conflict 
with the federal hours of service laws or otherwise adversely affect 
safety. Based on these ongoing efforts, FRA will take further actions 
it determines necessary and within its statutory authority to address 
issues associated with railroad employee fatigue.
    FRA is developing a Notice of Proposed Rulemaking (NPRM) addressing 
train crew staffing safety requirements. The rule would address 
potential safety risks for train operations with fewer than two crew 
members. This proposed rule demonstrates FRA's belief that safety and 
innovation go hand-in-hand. Historically, technological advances have 
enabled a gradual reduction in the number of train crew members. Today, 
with certain exceptions, most trains are operated with two-person 
crews. As technology continues to advance and automation is on the 
horizon, FRA intends this rule to serve as a tool to proactively 
address the potential safety impact of train operations with fewer than 
two crew members. The draft NPRM is currently under review with the 
Office of Management and Budget. Once issued, FRA looks forward to 
receiving and considering feedback from all stakeholders.
    In terms of innovation, the Department has shared its innovations 
principles:
      Serve our policy priorities;
      Help America win the 21st century;
      Support workers;
      Allow for experimentation and learn from failure;
      Provide opportunities to collaborate; and
      Be flexible and adapt as technology changes.

    Those principles are a roadmap for innovation. FRA looks forward to 
assessing proposals and efforts that reflect these principles.
    Aside from these regulatory initiatives, with the rechartering of 
the Railroad Safety Advisory Committee (RSAC) in late 2021, FRA is 
refocusing its efforts to engage all stakeholders in the collaborative 
and consensus-based rulemaking process. The RSAC was first established 
more than a quarter century ago and provides a forum for the free and 
candid exchange of technical expertise and views. FRA believes open 
discussions and exchanges of data and ideas by all stakeholders, 
including railroad employees, industry, and government technical 
experts, are key to continued improvements in rail safety.
    Not all safety advances are achieved through the regulatory 
process. FRA believes collaboration among all stakeholders is critical. 
For this reason, in April of this year, FRA held its first ever Track 
and Railroad Workplace Safety Symposium. Over 600 technical experts in 
track safety and roadway workplace safety participated in the 
gathering, which provided a forum to discuss and share information and 
best practices related to track inspection, maintenance, and roadway 
worker protection.
    Similarly, in the spirit of partnership and collaboration, FRA's 
Confidential Close Call Reporting System (C3RS) program enables 
railroad employees to report close calls and unsafe events and 
conditions without fear of reprisal or discipline. Root cause analysis 
is conducted on individual close calls, and collectively, safety 
hazards are identified. It is a voluntary program with 21 railroads 
(including passenger, commuter, and Class II and III freight railroads) 
representing nearly 27,000 safety-related railroad employees currently 
participating. Statistics show that over 75% of the close calls 
reported are events that would never have become known without the 
program. In 2021, the program launched the online Data Base Query Tool 
(DBQT). The DBQT is the Nation's largest repository of voluntarily-
submitted railroad safety reports, each originating within FRA's C3RS 
program. All stakeholders can use the publicly-available reports to 
help improve safety through human factors research, education, training 
and similar efforts. Recognizing the value in the data generated from 
this program, FRA is currently working to expand the program to include 
Class I freight railroads and through a pilot program with the Short 
Line Safety Institute, FRA is working to encourage the participation of 
additional Class III railroads.
    FRA also continues to improve its accident and incident 
investigation processes. These processes are designed to identify 
primary and contributing causes so future accidents can be prevented 
and also to identify local and industry-wide hazards, so that those 
hazards can be proactively mitigated. Given these goals, collecting 
accurate accident and incident data is critical and FRA has renewed its 
focus on ensuring the accident and incident cause codes reported by 
railroads accurately reflect the facts of each accident or incident 
under investigation.
            FRA's Implementation of Key BIL Safety Mandates
    Along with the BIL's unprecedented federal investment in the 
Nation's rail network, the law requires FRA to take specific actions to 
improve railroad safety. In addition to the fatigue pilot studies I 
noted earlier, key safety provisions of the BIL require FRA to take the 
following actions:
      Establish a blocked crossing portal;
      Conduct a comprehensive rail safety review of Amtrak;
      Partner with the National Academies of Science (NAS) to 
conduct a study of the operation and safety of trains longer than 7,500 
feet;
      Institute a system of audits of the training, 
qualification, and certification programs of railroad locomotive 
engineers and conductors; and
      Issue rules to enable high-speed rail service; and 
require pre-revenue service safety validation plans for certain 
railroads providing intercity or commuter rail passenger 
transportation.

    Although FRA already had initiatives underway consistent with 
several of the BIL mandates prior to passage of the law, the BIL has 
served to renew and streamline FRA's focus on these efforts. For 
example, the BIL mandates that as a pilot program, FRA establish a 
blocked crossing portal to receive, store, and retrieve information 
regarding blocked highway-rail grade crossings. FRA's blocked crossing 
portal has been in place since late 2019 and FRA is currently working 
to update and improve it to comply with the BIL. In addition, on June 
14, 2022, FRA issued a request for information so FRA can hear from 
communities how to design the tool in the most useful manner possible.
    FRA's efforts to implement several of the BIL's rulemaking mandates 
are well underway. For example, FRA's current regulatory agenda 
includes rules responsive to the BIL's mandates related to high-speed 
rail operations, pre-revenue service safety validation plans for 
certain rail passenger operations, and rules proposing to incorporate 
into FRA's regulations several longstanding waivers from FRA's 
regulatory requirements.
    In addition to the BIL, FRA has other safety efforts well underway 
in its day-to-day work. These are efforts that result in maintaining 
and improving rail safety. In 2021, FRA initiated a program of 
conducting periodic comprehensive system-wide safety audits of Class 1 
railroads. To date, FRA has completed an audit of the Union Pacific 
Railroad Company and is currently in the process of auditing Norfolk 
Southern Railway Company. Within the next few months, FRA is planning 
to initiate the BIL-mandated comprehensive rail safety review of Amtrak 
as part of this existing program. Similarly, prior to passage of the 
BIL, FRA had an ongoing research program dedicated to the safety and 
operation of long trains. In response to BIL's mandate that FRA partner 
with the NAS on this issue, FRA has begun the process of sharing its 
ongoing work with the NAS to better inform the more extensive study the 
BIL mandates.
    In early 2021, out of concern about some railroads' changes to 
their longstanding approaches to training under their FRA-approved 
operating crew certification programs and consistent with 
recommendations of the Department's Office of Inspector General, FRA 
began conducting more detailed reviews of railroads' operating crew 
training programs. Subsequently, in November 2021, I directed FRA's 
Office of Railroad Safety to begin a process of comprehensively 
reviewing and auditing all railroads' conductor certification programs 
in response to accidents involving the severe on-duty injuries of 
railroad conductors, including three accidents in which railroad 
conductors were fatally injured.\1\ Thus far, that review has found 
that some railroads' written programs do not conform with the 
regulation. FRA technical experts are working with the railroads to 
ensure that their programs conform with FRA regulations. The BIL 
mandate to audit these programs reinforces FRA's efforts in this area 
and FRA will begin the auditing process with the railroads' conforming 
written programs in place.
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    \1\ The accidents involving fatal injuries occurred on both Class I 
and short line railroads as follows: BNSF Railway Company (March 3 and 
April 7, 2021); and WATCO Switching (October 29, 2021). Additionally, 
on December 2, 2021, a conductor for the R.J. Corman Railroad Company 
was fatally injured while on-duty.
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Strategies to Improve Grade Crossing Safety and Prevent Trespassing on 
                           Railroad Property
    FRA is working to identify innovative and non-traditional ways to 
enhance grade crossing safety and prevent illegal trespassing on 
railroad property. The agency continues to take a comprehensive 
approach to both issues, and although the Department recognized grade 
crossing safety in its 2021 Roadway Safety Strategy, neither the 
Department nor FRA alone can solve these issues. Collaboration with 
Departmental modal partners is key, as is collaboration and the 
empowerment of all stakeholders, including states, local communities, 
law enforcement, and others. For this reason, FRA continues to 
implement its National Strategy to Prevent Trespassing on Railroad 
Property and has launched the National High Risk Crossing Initiative. 
These efforts include conducting focused inspections, educational 
outreach, and partnering with local communities in places with the 
highest number of trespassing incidents and high-risk grade crossings.
    FRA will continue this collaboration with other DOT operating 
administrations, local community leaders, law enforcement, railroads, 
and the public to identify and share best practices and local 
mitigation strategies. As part of these efforts, FRA is working to make 
all stakeholders aware of the funding opportunities presented by the 
BIL--including the new Railroad Crossing Elimination Program (RCEP) and 
the availability of Consolidated Rail Infrastructure and Safety 
Improvements (CRISI) funds not only for capital improvement projects, 
but projects addressing trespass prevention as well. Trespass 
enforcement activities were initially demonstrated and evaluated 
through FRA-funded research with DOT's Volpe Center, and those results 
led directly to the creation of the successful dedicated funding 
program within CRISI.
    FRA has conducted three outreach sessions on the RCEP, stressing 
the program's ability to fund all types of grade crossing improvements, 
including grade separations, closures, and other actions to eliminate 
problematic crossings and providing potential applicants guidance on 
the application process. FRA expects to publish a Notice of Funding 
Opportunity (NOFO) for this program this summer.
    FRA just announced the first round of CRISI awards since passage of 
the BIL. Notably, FRA awarded CRISI funds to 46 projects from 32 states 
and the District of Columbia, with approximately 49% of the funding 
going towards projects in rural areas, exceeding the BIL's 25% percent 
set aside for such areas. FRA expects to release the FY22 CRISI NOFO--
the first round of CRISI funding provided by the BIL--in late summer or 
early fall.\2\
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    \2\ A full list of FRA BIL funding and program milestones, as well 
as a tentative calendar for future actions, is available at: https://
railroads.dot.gov/BIL
---------------------------------------------------------------------------
    The level of CRISI funding provided by the BIL will also allow FRA 
to invest in traditional, hard infrastructure safety projects, 
including track and bridge replacements, but also more new, innovative, 
and collaborative projects, such as the Rail Pulse project selected in 
FY20 CRISI funding cycle. The FRA will be working with PennDOT and the 
Rail Pulse Coalition members to develop a railcar onboard GPS sensor 
system to provide real-time information. If successful, this technology 
would not only result in more efficient and transparent freight rail 
shipping, but also provide safety enhancements and information such as 
sensors monitoring hand brake position and impact over certain speeds.
         Focus on Enhancing Workforce Capacity and Development
    FRA believes that with the unprecedented investment into our 
Nation's rail infrastructure the BIL provides and to support continued 
innovation and technological advancements, it is critical to ensure the 
industry's workforce is properly educated and trained. For this reason, 
FRA has renewed its focus on rail industry workforce development. For 
example, FRA recently published draft guidance for its grantees to 
ensure industry employees jobs are adequately protected from potential 
adverse impacts of federally funded rail projects. In addition, FRA's 
2023 budget request outlines an FRA initiative to establish a Railroad 
Workforce Development program with dedicated funding within CRISI. 
Although workforce development and training projects have been eligible 
for CRISI funds since the passage of the FAST Act, FRA historically 
received very few applications. With that said, FRA was excited to 
recently announce two FY21 workforce development awards under CRISI. 
The first, for a railroad engineering program at Morgan State 
University, a historically black college and university (HBCU) in 
Baltimore, MD, in collaboration with the University of Delaware. The 
second award is for an Amtrak pilot program for a three-year Mechanical 
Craft Workforce Development Apprenticeship Training Program, to take 
place in Los Angeles, CA; Chicago, IL; Beech Grove, IN; New York, NY; 
Wilmington, DE; and Washington DC. FRA believes that formalizing and 
dedicating funding to the program will spur additional interest in 
workforce development and training.
    Additionally, FRA's 2023 budget request seeks funds to establish a 
National Railroad Institute. Learning from its modal partners, the 
Federal Highway Administration and the Federal Transit Administration, 
which both maintain training institutes, and with support of our 
colleagues at DOT's Volpe Center, the National Railroad Institute will 
develop and conduct training and education programs for both public- 
and private-sector railroad and allied industry employees. FRA 
envisions the Institute playing a crucial role in ensuring railroad 
workers develop and maintain the skillsets and tools necessary to 
succeed in the industry's rapidly evolving technological landscape.
    In conclusion, FRA is committed to continuing to lead, promote, and 
strengthen efforts among all stakeholders to achieve meaningful and 
continuous improvements in rail transportation safety. FRA recognizes 
its responsibilities to the public, railroad employees, and the rail 
industry in general, to ensure the unprecedented investments the BIL is 
providing are used to make our Nation's freight and passenger rail 
systems safer, more reliable, more resilient, more sustainable, and 
more equitable than ever before. FRA is committed to meeting these 
responsibilities.

    Mr. Payne. Thank you.
    And now we recognize Mr. Chapman.
    You may proceed, sir.
    Mr. Chapman. Good morning, Mr. Chairman, Ranking Member 
Crawford, and members of the subcommittee. We appreciate this 
opportunity to share insights regarding issues relating to 
freight railroad safety.
    I have a strong personal interest in rail safety. In the 
early 1950s, my grandfather was struck and killed in a railroad 
grade crossing crash. He was a volunteer firefighter on a duty 
call with a colleague when the collision occurred. Because of 
my family history, I have made rail safety, and grade crossing 
safety specifically, a priority during my time on the Board.
    Improving rail worker safety is on our Most Wanted List of 
Transportation Safety Improvements. Improving rail worker 
safety means making sure that roadway workers have the 
training, equipment, rest, and layers of protection they need 
while working on or around tracks. It means making sure that 
crews operating trains carrying hazardous materials have time 
to escape in case of an accident.
    It also means reducing the risks of derailments and 
collisions as trains are getting longer and heavier. Although 
rail worker fatalities have declined overall in recent years, 
we continue to see recurring safety issues in our accident 
investigations that are 100 percent preventable.
    Of particular concern is the continued reliance on train 
approach warning for roadway workers. Under FRA regulations, 
train approach warning is a method of establishing on-track 
safety for workers using a lookout whose sole duty is to watch 
for approaching trains and equipment. It is susceptible to 
human error, such as underestimating the time needed for 
workers to clear tracks.
    We have long been concerned with the use of train approach 
warning as the sole form of worker protection primarily because 
it lacks redundancy. Trains travel at deceivingly high speeds, 
and without proper warning, workers may not have enough time to 
react.
    Based on our investigations, we have made recommendations 
to the FRA to ensure that lookouts have the tools necessary to 
warn work crews of approaching trains. Likewise, we have 
recommended that the FRA define when the risks associated with 
using train approach warning are unacceptable and revise its 
regulations to prohibit it in those cases. Although dialogue is 
ongoing, FRA has yet to implement these recommendations.
    In 2018, in Bowie, Maryland, a young man, just 21 years 
old, lost his life in a preventable accident. He was standing 
in a work zone on an active track in the path of Amtrak train 
86, which was traveling at nearly 100 miles per hour. In this 
case, Amtrak's reliance on train approach warning resulted in 
failure to take advantage of the protections that could have 
been provided by PTC.
    In controlled track territory, the risk of roadway workers 
being struck by a train can be reduced by using working limits 
or speed restrictions, which would enable the PTC protections. 
We recommended that Amtrak and all Class I railroads eliminate 
the use of train approach warning in controlled track territory 
during planned maintenance and inspection activities.
    Mr. Chairman, fatigue decreases a person's alertness and 
ability to work safely. Currently, FRA hours-of-service 
regulations are limited to employees directly involved with the 
movement of a train. However, FRA regulations do not cover 
roadway workers who are just as critical to ensure safe 
operations. FRA has indicated it does not have the legal 
authority to extend these regulations. NTSB disagrees, and we 
encourage Congress to consider clarifying the agency's 
authority.
    We have also investigated accidents involving high-hazard 
flammable trains, breached tank cars and fires, placing crews 
at unnecessary risk by not reasonably separating them from 
combustibles. In 2017, we recommended that the Pipeline and 
Hazardous Materials Safety Administration evaluate the risks 
posed to traincrews to determine the adequate separation 
distance between hazardous materials and occupied cars to 
ensure crews are protected during normal operations and 
accident conditions. FRA should revise its regulations to 
reflect those findings. In the interim, we recommend that PHMSA 
require that all trains have a minimum of five buffer cars 
between any crew-occupied equipment and cars carrying hazardous 
materials.
    The sequencing of cars and a train and controlling train 
movement continue to be areas of interest in our 
investigations, not only regarding the safe placement of 
hazardous materials but also for reducing the risks of 
derailments and collisions through effectively managing in-
train forces.
    Mr. Payne. Please wrap up.
    Mr. Chapman. Mr. Chairman, rail remains one of the safest 
means of transportation, yet there will always be room for 
improvement. The safety issues we continue to see in our 
investigations are tragic because they are preventable. Thank 
you again for the opportunity to testify.
    [Mr. Chapman's prepared statement follows:]

                                 
    Prepared Statement of Hon. Thomas B. Chapman, Member, National 
                      Transportation Safety Board
    Good morning, Chairman Payne, Ranking Member Crawford, and members 
of the subcommittee. Thank you for inviting the National Transportation 
Safety Board (NTSB) to testify, discuss our freight railroad accident 
investigations and the lessons we have learned from those 
investigations, and reiterate how critical it is for our federal, 
industry, and labor partners, and for the Congress, to heed those 
lessons learned and take action to help avoid future accidents. 
Although this hearing is focused on freight rail safety, we are also 
more than happy to provide the subcommittee with information regarding 
passenger rail investigations and recommendations as well.
    As you know, the NTSB is an independent federal agency charged by 
Congress with investigating every civil aviation accident in the United 
States and significant events in other modes of transportation--
highway, rail, marine, pipeline, and commercial space. We determine the 
probable cause of the events we investigate and issue safety 
recommendations aimed at preventing future occurrences. In addition, we 
conduct special transportation safety research and special 
investigations, and coordinate the resources of the federal government 
and other organizations to assist victims and their family members who 
have been impacted by major transportation disasters. We also serve as 
the appellate authority for enforcement actions involving aviation and 
mariner certificates issued by the Federal Aviation Administration 
(FAA) and the United States Coast Guard, and adjudicate appeals of 
civil penalty actions taken by the FAA.
    The NTSB does not have authority to promulgate operating standards, 
nor do we certificate organizations, individuals, or equipment. 
Instead, we advance safety through our recommendations, which are 
issued to any entity that can improve safety. Our goal is to identify 
issues and advocate for safety improvements that, if implemented, would 
prevent tragedies and injuries and save lives.
                    Rail Safety and Reauthorization
    Our current authorization expires at the end of this fiscal year. 
As you know, we have sent Congress a reauthorization proposal that 
requests resources and hiring flexibility to increase the number of 
investigators in our Office of Railroad, Pipeline, and Hazardous 
Materials Investigations (RPH), as well as in our other modes.\1\ These 
resources will allow us to hire professionals with the needed skills, 
purchase the equipment necessary for those skilled professionals to do 
their jobs, and invest in staff training and development. Our workforce 
is our greatest asset and is essential to our mission.
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    \1\ National Transportation Safety Board Draft Reauthorization Act 
of 2022. Washington, DC: NTSB.
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    The NTSB is required to investigate any railroad accident in which 
there is a fatality or substantial property damage, or that involves a 
passenger train.\2\ We must currently meet this mandate with only 15 
railroad investigators, two of whom are eligible for retirement. Those 
15 investigators are currently working on 22 investigations, and we 
open about 11 new investigations each year. This office is 
understaffed. In fact, as part of our reauthorization proposal, we 
identified a need for 21 additional staff over the next 5 years. Our 
reauthorization request only fills a portion of this need.
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    \2\ 49 United States Code (U.S.C.) 1131(a)(1)(C).
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    Even if provided with the requested resources and workforce 
flexibilities, we would be challenged to meet the broad mandate in 
Title 49 United States Code (U.S.C.) 1131, given the tragic number of 
fatalities that result from crashes at highway-rail grade crossings or 
involving trespassers on railroad property each year. In 2021, 238 
people were killed in crashes at grade crossings, and 625 people were 
killed in trespassing-related accidents. This represents the 
overwhelming majority of rail fatalities in the United States, and we 
are grateful that Congress included several provisions in the 
Infrastructure Investment and Jobs Act of 2021 (IIJA) \3\ to address 
grade crossing and trespasser safety.
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    \3\ Public Law 117-58.
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    Our reauthorization proposal would amend the current mandate so 
that crashes at grade crossings or accidents involving rail trespassers 
no longer fall under our investigative mandate. Instead, we would 
maintain the flexibility to investigate those grade-crossing crashes or 
trespasser accidents that may provide a significant safety benefit to 
the public, similar to how we approach highway crashes. In fact, the 
Board traditionally treats such grade-crossing crashes as highway 
investigations that include railroad investigators. This change to our 
mandate would allow us to focus our resources on investigating those 
accidents and crashes where we can provide the most effective findings 
and recommendations to improve safety.
    For those railroad accidents that we do not investigate, it is 
important to note that the Federal Railroad Administration (FRA), as 
the regulator, may still conduct an accident or incident investigation. 
We have expressed concern in the past that FRA investigations do not 
use the party process, as we do, to encourage participation from 
relevant organizations, including employee unions. We have found that 
union representation brings operations-specific knowledge to the 
accident investigation team and helps facilitate employee cooperation. 
As a result, in 2014, we recommended that the FRA include union 
participation in its accident investigations, seeking congressional 
authority to allow such participation, if necessary.\4\ We appreciate 
that the IIJA includes a provision to address this issue by requiring 
the Department of Transportation (DOT) to develop a standard process 
for its rail accident and incident investigations, including consulting 
with relevant entities, including employees.\5\
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    \4\ Safety Recommendation R-14-37.
    \5\ Pub. L. 117-58, section 22417.
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    Let me be clear: this does not mean that improving safety on and 
around tracks and at highway-rail grade crossings is not a priority for 
the NTSB. As you may know, just last month, we launched a team to 
investigate a fatal crash involving a Metra passenger train that 
collided with a truck on the tracks in Clarendon Hills, Illinois. You 
probably do not know, however, that I have an especially strong 
interest in this rail safety issue. In the early 1950s, my grandfather, 
a volunteer firefighter, was struck and killed in a railroad grade-
crossing crash. He and a colleague were on a call when the collision 
occurred. The tragedy had a devastating impact on my mother and her 
family. My mother was a high school student at the time, and the loss 
of her father changed the course of her life. Consequently, I have made 
grade-crossing safety a personal priority during my time on the Board.
 Most Wanted List of Transportation Safety Improvements: Improve Rail 
                             Worker Safety
    Improving Rail Worker Safety is one of the issues highlighted in 
our 2021-2022 Most Wanted List of Transportation Safety 
Improvements.\6\ Improving rail worker safety means making sure that 
roadway workers have the training, equipment, rest, and layers of 
protection they need while working on or around tracks. It means making 
sure that crews operating trains carrying hazardous materials have time 
to escape in case of an accident. It also means reducing the risks of 
derailments and collisions as trains become longer and heavier.
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    \6\ National Transportation Safety Board. 2021-2022 Most Wanted 
List of Transportation Safety Improvements. Washington, DC: NTSB.
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    In recent years, we have investigated several railroad and transit 
accidents where workers have been struck and injured or killed while 
conducting routine maintenance or switching operations. Other workers 
are vulnerable when cars carrying hazardous materials are too close to 
those carrying train crew. We have also investigated accidents where 
crew have been killed riding on the sides of trains, in violation of 
rules. Since railroad worker safety regulations were implemented by the 
FRA in 1997, there have been 466 railroad employee fatalities and 
134,850 injuries.\7\ Although rail worker fatalities have declined 
overall in recent years, we continue to see recurring safety issues in 
our accident investigations that are 100 percent preventable, 
highlighting the need for better worker protections.
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    \7\ Bureau of Transportation Statistics. Fatalities and Injuries of 
On-Duty Railroad Employees. Washington, DC: DOT. Accessed June 1, 2022.
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Roadway Workers and Train Approach Warning
    The FRA's railroad workplace safety regulations include 
requirements to protect workers when they are on the tracks and specify 
railroads' oversight responsibilities.\8\ There are several ways to 
provide on-track safety to roadway workers when their duties require 
them to foul a track. For example, roadway workers can request 
protection from the train dispatcher, who will set the signals to 
prevent trains from entering the work area. Further, if positive train 
control (PTC) is in effect, the trains will be stopped before entering 
the designated work areas even if the locomotive engineer fails to do 
so. The regulations also include the train approach warning (TAW) 
method for roadway workers who foul a live track for incidental 
inspections and minor repairs. TAW is a method of establishing on-track 
safety for roadway workers using a watchperson or lookout whose sole 
duty is to look out for approaching trains and on-track equipment and 
provide ample warning time to allow workers to clear to a predetermined 
place of safety at least 15 seconds before the arrival of a train or 
other equipment.
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    \8\ Title 49 Code of Federal Regulations 214. Railroad Workplace 
Safety.
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    Many of the accidents we have investigated have involved TAW, which 
is susceptible to human errors like miscalculating site distance and 
underestimating the time needed for workers to clear tracks. We have 
long been concerned with the risks of using TAW as the sole form of 
worker protection, especially because it lacks safety redundancy. 
Trains travel at deceptively high speeds and, without proper warning, 
workers may not have enough time to react. Additional recurrent issues 
we see in our investigations are the need to address training, 
scheduling practices, and briefings. Specifically, lookouts should 
receive proper training on how to warn work crews of approaching trains 
and should have the required equipment to perform these duties. 
Railroads must also develop work schedules and limitations based on 
science to prevent fatigued workers from being eligible to work 
overtime. Industry needs to ensure that job briefings are done 
correctly and that procedures are in place to audit those briefings.
    On January 17, 2017, a BNSF Railway train struck and killed two 
roadway workers, including the watchperson, in Edgemont, South 
Dakota.\9\ The roadway work group had been cleaning snow and ice from 
the track switch on the main track to prepare for a train that was to 
have its air brake system tested. The crew of the striking train 
sounded the train horn and bell and applied emergency braking; however, 
there was no response from the roadway work group. We found that the 
probable cause of this accident was the improper use of TAW by the BNSF 
Railway roadway work group to provide on-track safety.
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    \9\ NTSB. BNSF Railway Roadway Worker Fatalities, Edgemont, South 
Dakota, January 17, 2017. Washington, DC: NTSB. RAR 18/01.
---------------------------------------------------------------------------
    As a result of that investigation, we made recommendations to the 
FRA to ensure that lookouts have the tools necessary to warn work crews 
of approaching trains.\10\ In this case, BNSF Railroad did not provide 
the appropriate equipment to its lookouts, despite being federally 
mandated to do so. The FRA, for its part, was inconsistently enforcing 
the regulation. In December 2018, the FRA responded to these 
recommendations, saying that it disagreed with them and would not take 
any action. The recommendations remain classified ``Open--Unacceptable 
Response,'' and we continue to urge the FRA to reconsider its position 
and take action to protect vulnerable roadway workers.
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    \10\ Safety Recommendations R-18-16, -17, -18, and -19.
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    Not even 6 months after the Edgemont accident, a Long Island Rail 
Road (LIRR) train struck and killed a roadway worker foreperson who 
stepped onto active tracks into the path of a train in Queens Village, 
New York.\11\ A five-person crew, including the foreperson and 
watchperson, were inspecting and making minor repairs to one of four 
main tracks at an interlocking, using TAW for worker protection. The 
watchperson had to look for trains moving at nearly 80 miles per hour 
from both directions on multiple tracks, then warn workers and clear 
the track within 15 seconds. In this accident, TAW was particularly 
dangerous for the crew due to several factors, such as there being 
multiple tracks at the interlocking, trains operating at high speeds in 
both directions, and the crew having limited areas to which they could 
clear trains, combined with the additional train traffic due to the 
Belmont Stakes horse race occurring that day. All these factors created 
unacceptable risks for the work crew.
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    \11\ NTSB. Long Island Rail Road Roadway Worker Fatality, Queens 
Village, New York, June 10, 2017. Washington, DC: NTSB, RAR 20/01.
---------------------------------------------------------------------------
    We determined that the probable cause of this accident was the 
LIRR's decision to use TAW to protect the roadway workers on active 
tracks. We found that TAW regulations do not ensure protection for 
roadway workers to inspect and work on tracks where trains are allowed 
to continue to operate, and we recommended that the FRA define when the 
risks associated with using TAW are unacceptable and revise its 
regulations to prohibit TAW from being used in those cases.\12\ In 
April 2021, the FRA responded that it disagreed with the recommendation 
and indicated that it would take no action to revise the regulations. 
The recommendation is currently classified ``Open--Unacceptable 
Response.''
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    \12\ Safety Recommendation R-20-6.
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    We reiterated this recommendation in September 2021 as a result of 
our investigation of an April 24, 2018, accident in Bowie, Maryland, 
where TAW was used for on-track safety.\13\ In that accident, an Amtrak 
train struck and killed an Amtrak rail gang watchperson near the Bowie 
State Train Station on Amtrak's Northeast Corridor. At the time of the 
accident, main track 2 was out of service under a continuous track 
outage for maintenance, and the adjacent tracks immediately to the east 
and west of main track 2 were in service. Three lookouts were 
protecting the roadway workers and watching for trains moving on 
adjacent tracks. One watchperson was positioned near the boarding 
platform, another was positioned in a nearby curve, and the third was 
positioned toward the end of the curve, near a work gang of welders. 
The third watchperson was struck by the train.
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    \13\ NTSB. Amtrak Roadway Worker Fatality, Bowie, Maryland, April 
24, 2018. Washington, DC: NTSB, RAR 21/02.
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    In the Bowie accident, Amtrak's use of TAW circumvented the 
protections that could have been provided by PTC. One of the specific 
requirements of PTC is to protect workers and equipment on the track. 
TAW does not use working limits or speed restrictions and, therefore, 
gets around the protections that would be provided by PTC in controlled 
track territory.\14\ For a PTC system to protect roadway workers, a 
roadway worker-in-charge of on-track safety for a work group must 
establish working limits with the train dispatcher. When working limits 
are established, the PTC system prevents incursions into that segment 
of track. Alternatively, temporary speed restrictions can also provide 
protection. When a temporary speed restriction is placed on the track 
by the dispatcher, PTC enforces that speed restriction.
---------------------------------------------------------------------------
    \14\ Controlled track means track upon which the railroad's 
operating rules require that all movements of trains must be authorized 
by a train dispatcher or a control operator.
---------------------------------------------------------------------------
    In controlled track territory, the risk of roadway workers being 
struck by a train can be reduced by using working limits or speed 
restrictions, which would enable PTC protections. We concluded in the 
Bowie investigation that, had Amtrak established working limits or 
speed restrictions on the adjacent tracks that enabled the protections 
available under PTC rather than relying on the use of TAW, the accident 
may have been prevented. Besides reiterating our recommendation to the 
FRA to revise its regulations, we recommended that Amtrak and all Class 
I railroads eliminate the use of TAW protection in controlled track 
territory during planned maintenance and inspection activities.\15\
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    \15\ Safety Recommendation R-21-5.
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    The Bowie accident and others also highlight gaps in PTC 
implementation, including risks of incursions by trains into work 
zones. Requiring PTC only on certain tracks and allowing exceptions to 
the rules creates unnecessary risk. We are currently conducting a 
focused safety research report to specifically examine these issues.
Coverage of Roadway Workers Under Hours-of-Service Law
    Fatigue decreases a person's alertness and ability to work safely. 
The lookout and foreperson in the Queens Village accident were likely 
fatigued because they had worked consecutive overtime shifts. The 
lookout had worked and commuted for 38 of the 50 hours before the 
accident, and the foreperson had been on duty for the same length of 
time. This schedule did not allow either of them the opportunity for 
restorative sleep in the two nights before the accident.
    An agreement between the LIRR and its roadway worker labor union, 
SMART Transportation Division, Local 29, allowed LIRR track workers to 
take overtime shifts based on their skill and seniority, but without 
considering other important factors, such as fatigue. This agreement 
exposed employees and the public to unnecessary risk. In the Queens 
Village investigation, we found that, had the LIRR used biomathematical 
models of fatigue avoidance to develop work schedules and approval 
processes for roadway workers, the foreperson's and lookout's likely 
fatigue would have been avoided, and their overtime work requests for 
the day of the accident would have been denied.
    Currently, the FRA has hours-of-service regulations that cover 
service positions and certain employees involved with the movement of a 
train, including operators, dispatchers, and signal employees. The 
regulations do not, however, classify roadway workers as personnel in 
covered service positions and do not, therefore, limit their on-duty 
time. Consequently, there are limited or no safety controls from the 
FRA or railroads beyond union agreements and local work practices that 
limit roadway workers' maximum work hours and ensure adequate 
opportunities for needed sleep. Because roadway workers' duties often 
affect the movement of a train and could possibly create unnecessary 
safety risks for employees and the traveling public, we have 
recommended that the FRA promulgate scientifically based hours-of-
service requirements for roadway workers.\16\
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    \16\ Safety Recommendation R-20-7.
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    The NTSB believes the FRA has the legal authority, under 49 U.S.C. 
chapter 211, to apply hours-of-service requirements to roadway workers, 
as it does with all its service positions. However, in April 2021, the 
FRA told us that it disagrees. Although we maintain that FRA already 
has the required legal authority, we believe that Congress should 
consider clarifying the agency's authority in this regard.
Train Crews and High-Hazard Flammable Trains
    The NTSB has also investigated accidents involving high-hazard 
flammable trains (HHFTs) that resulted in breached tank cars and 
hazardous material fires, increasing the risk of death and injury to 
crewmembers.\17\ In several accidents, we have seen that there was not 
enough separation between cars carrying hazardous materials and those 
on which crewmembers were serving. We have also seen issues with 
placing older tank cars in trains with other cars carrying flammable 
liquids. In HHFT accidents, freight train crews may survive collisions 
and derailments only to be injured or killed by hazardous materials 
released subsequently. A crew involved in a locomotive collision may 
experience injuries that would limit their ability to rapidly exit the 
locomotive, thereby increasing their risk of injury from hazardous 
material release or fire. We have made recommendations to industry, the 
FRA, and the Pipeline and Hazardous Materials Safety Administration 
(PHMSA) to address these risks.
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    \17\ A high-hazard flammable train is defined in Title 49 CFR 171.8 
as a single train transporting 70 or more loaded tank cars containing 
Class 3 flammable liquid.
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    Rail tank cars are built to certain DOT or industry 
specifications.\18\ The Fixing America's Surface Transportation (FAST) 
Act phased out legacy DOT-111 specification tank cars for transporting 
certain flammable liquids, such as crude oil, and the cars continue 
phasing out service for certain other commodities, such as ethanol. By 
May 1, 2023, nonjacketed and jacketed DOT-111 tank cars must be phased 
out; nonjacketed CPC-1232 tank cars must be phased out by July 1, 2023; 
and jacketed CPC-1232 tank cars must be removed or retrofitted by May 
1, 2025. Each of those tank cars must be either removed from flammable 
liquids service or retrofitted with prescribed protective features, 
such as a head shield, jacket, and thermal protection.
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    \18\ Bureau of Transportation Statistics. Tank Car Specifications 
and Terms. Washington, DC: DOT. Accessed June 1, 2022.
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    In December 2020, we released a safety recommendation report based 
on findings from investigations into two HHFT derailments.\19\ The 
first occurred on April 24, 2019, in Fort Worth, Texas, when a Union 
Pacific Railroad unit train carrying denatured ethanol derailed 25 of 
the 96 loaded tank cars.\20\ Three tank cars, including one severely 
damaged legacy DOT-111 tank car, were breached and released 65,270 
gallons of denatured ethanol, which ignited and formed pool fires. Some 
of the released ethanol entered a tributary of the Trinity River. The 
local police evacuated nearby homes, and, fortunately, no individuals 
were injured; however, three horses in a barn were killed, and three 
were injured.
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    \19\ NTSB. Placement of DOT-111 Tank Cars in High Hazard Flammable 
Trains and the Use of Buffer Cars for the Protection of Train Crews. 
Washington, DC: NTSB, RSR 20/01.
    \20\ Union Pacific Railroad Derailment with Hazardous Materials 
Release and Subsequent Fire, Fort Worth, Texas, April 24, 2019. 
Washington, DC: NTSB, RAB 21/03.
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    The second accident occurred on February 13, 2020, when a CSX 
Transportation unit train also carrying 96 loaded tank cars of 
denatured ethanol derailed three locomotives, one buffer car, and four 
tank cars on a mountainside near Draffin, Kentucky.\21\ Two of the 
derailed DOT-111 tank cars were breached and released 38,400 gallons of 
denatured ethanol, which, along with diesel fuel from the locomotives, 
ignited, engulfing the locomotives and the second and third tank cars. 
The train crew escaped from the burning lead locomotive by jumping into 
the river, where they were rescued by emergency responders.
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    \21\ NTSB. Derailment of CSX Transportation Train K42911, Draffin, 
Kentucky, February 13, 2020. Washington, DC: NTSB.
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    As noted in our report, generally, cars positioned at the rear of a 
train have a lower probability of being derailed and, therefore, a 
lower probability of being breached by mechanical damage. In both the 
Fort Worth and Draffin accidents, the breached DOT-111 tank cars were 
positioned in the front third of the train, putting them at greater 
risk of derailing in an accident, even though the trains' more robust, 
puncture-resistant DOT-117J specification tank cars could have been 
positioned in the front third of each train to decrease the risk of 
flammable hazardous material releases. In addition, the DOT-111 
baseline legacy tank cars could have been placed in the lowest-risk 
positions for exposure to derailment or collision--and far away from 
occupied locomotives. In response to recommendations we made, the 
Renewable Fuels Association updated its Best Practices for Rail 
Transport of Ethanol guidance with the suggested best practice of 
placing DOT-111 and DOT-117 tank cars in a train consist.\22\ As long 
as DOT-111 tank cars remain in service, we continue to urge shippers 
and carriers to reduce risks by adopting placement strategies that 
account for tank car type.
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    \22\ Safety Recommendation R-20-27.
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    Although PHMSA requires buffer cars between train crews and 
hazardous materials, the agency has also issued a regulatory 
interpretation that provides for a much shorter distance between them. 
In 2017, we recommended that PHMSA evaluate the risks posed to train 
crews by hazardous materials transported by rail, determine the 
adequate separation distance between hazardous materials cars and 
occupied cars to ensure train crews are protected during both normal 
operations and accident conditions, and collaborate with the FRA to 
revise the regulations to reflect those findings.\23\ That 
recommendation is currently classified ``Open--Acceptable Response,'' 
as PHMSA has initiated a research project in coordination with the John 
A. Volpe National Transportation Systems Center to address the issue. 
We understand that the Volpe Center is in the process of finalizing a 
report. In the meantime, we recommended that PHMSA withdraw its 
regulatory interpretation and require that all trains have a minimum of 
five buffer cars between any crew-occupied equipment and cars carrying 
hazardous materials, regardless of train length and consist.\24\ PHMSA 
has responded that it does not plan to take this interim action, and 
the recommendation is classified ``Open--Unacceptable Response.''
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    \23\ Safety Recommendation R-17-1.
    \24\ Safety recommendation R-17-2.
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                Train Handling and Operational Practices
    The 2017 recommendations we made to PHMSA came as a result of our 
investigation of a 2013 derailment and subsequent collision in 
Casselton, North Dakota, in which a BNSF train carrying grain derailed 
13 cars onto an adjacent track, where they were then struck by another 
BNSF train. The striking train derailed two head-end locomotives, a 
buffer car, and 20 cars loaded with crude oil.\25\ Following the 
collision, the crew of the oil train narrowly escaped the area before 
the locomotives were destroyed by the eruption of a postaccident fire 
and energetic fireballs.
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    \25\ NTSB. BNSF Railway Train Derailment and Subsequent Train 
Collision, Release of Hazardous Materials, and Fire, Casselton, North 
Dakota, December 30, 2013. Washington, DC: NTSB, RAB 17/01.
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    The operational practices of sequencing rail cars in a train and 
controlling train movement continue to be areas of interest in our 
investigations, not only regarding the safe placement of hazardous 
materials, but also for reducing the risks of derailments and 
collisions through effectively managing in-train forces. We have 
investigated accidents where operational practices \26\ and training 
and oversight of operating crew \27\ did not sufficiently provide for 
safe operation.
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    \26\ NTSB. CSX Train Derailment with Hazardous Materials Release, 
Hyndman, Pennsylvania, August 2, 2017. Washington, DC: NTSB, RAR 20/04.
    \27\ NTSB. BNSF Railroad Collision, Kingman, Arizona, June 5, 2018. 
Washington, DC: NTSB, RAR 21/01.
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    We have also investigated accidents in freight rail where use of 
available technology would mitigate risks. For example, another issue 
that our investigators looked into as part of the Casselton 
investigation was the performance of various train braking types, 
particularly electronically controlled pneumatic (ECP) brakes. ECP 
brakes are the most advanced train braking systems available for the 
freight rail industry today. Unlike conventional or distributed power 
systems, ECP brake systems simultaneously send an electronic braking 
command to all equipped railcars in the train. In general, our research 
has found that ECP brakes out-perform other braking systems in stopping 
distance and energy dissipation during derailments, but we have not 
made any recommendations in this area. In May 2015, PHMSA issued a 
final rule to require HHFTs to operate with ECP braking capability 
requirements; however, in September 2018, PHMSA, in coordination with 
the FRA, rescinded the rule and eliminated the requirement for ECP 
brakes.
    Our investigation of the October 4, 2018, fatal collision between 
two Union Pacific trains in Granite Canyon, Wyoming, found that the 
accident could have been prevented had the train been equipped with an 
ECP braking system.\28\ This collision occurred when the air brakes on 
an eastbound UP freight train failed while the train descended a hill. 
The striking train, consisting of 3 locomotives and 105 railcars, 
collided with the rear of a standing UP freight train at about 55 mph, 
causing the lead locomotives of the striking train and railcars of both 
trains to derail. The locomotive engineer and conductor of the striking 
train were killed.
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    \28\ NTSB. Collision of Union Pacific Railroad MGRCY04 with a 
Stationary Train, Granite Canyon, Wyoming, October 4, 2018. Washington, 
DC: NTSB, RAR 20/05.
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    We found that the length of the train, curvature of the track, and 
obstructions due to physical terrain contributed to a loss of 
communication between the head-of-train device (HTD) and the end-of-
train device (ETD) on the striking train. Normally when emergency 
brakes are applied, in addition to venting the air brake pipe on the 
lead locomotive, the HTD in the lead locomotive transmits a radio 
message to the ETD at the rear of the train to initiate an emergency 
brake application and vent the air brake pipe to atmosphere at the rear 
of the train at the same time. In this accident, the locomotive 
engineer of the striking train applied the emergency brake as the train 
descended; however, the train's speed continued to increase. After the 
emergency brake application, the crew received a ``front-to-rear no 
communication'' message indicating the emergency brake request was not 
received at the ETD. With an ECP brake system, the emergency brake 
commands would have been received through the entire train, thereby 
applying the brakes on each railcar.
    Current FRA regulations allow 16 minutes and 30 seconds to elapse 
before the engineer is alerted that communication with the ETD has been 
lost. We recommended the FRA require more frequent communication checks 
between the HTD and ETD, and that emergency brake signals continue to 
transmit until to address this vulnerability.\29\
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    \29\ Safety Recommendations R-20-28 and -29.
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    I want to thank you for your efforts to address these issues in the 
IIJA, specifically the provision requiring the DOT to seek to enter 
into an agreement with the National Academies of Science to study the 
impact that train length has on safety, including loss of communication 
between the ETD and locomotive cab and braking performance.\30\ In 
addition, the provision \31\ requiring the FRA to collect more data on 
its Rail Equipment Accident/Incident Report regarding the number and 
length of cars as well as the size of the crew on involved trains (the 
latter of which addresses a recommendation that we made following the 
2015 derailment of Amtrak 188 in Philadelphia) \32\ will help us 
understand if further safety improvements are needed following 
accidents.
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    \30\ Pub. L. 117-58, Section 22422.
    \31\ Pub. L. 117-58, Section 22421.
    \32\ Safety Recommendation R-16-33.
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                               Conclusion
    Although rail remains one of the safest means of transportation, 
our investigations have found that railroad safety can be improved with 
operators, labor unions, government oversight agencies, and local 
communities sharing responsibility. The safety issues we continue to 
see in our investigations are tragic because they are preventable.
    We urge the FRA and PHMSA, as the regulators, to act now on our 
recommendations to establish adequate roadway worker and operations 
crew protections. If they do not address these deficiencies, we will 
continue to see more accidents and incidents resulting in preventable 
worker deaths and injuries. However, industry does not need to wait for 
those agencies to act to protect workers. Eliminating the use of TAW 
where the risks are too high, not allowing workers to be on the job 
without adequate opportunity for rest, and reducing the potential for 
train crews to be exposed to the hazards of highly flammable materials 
will help prevent these accidents and save lives.
    We recognize the progress that has been made; yet there will always 
be room for improvement. The NTSB stands ready to work with the 
Committee to continue improving rail safety. Thank you again for the 
opportunity to testify today. I am happy to answer your questions.

    Mr. Payne. Thank you.
    We will now move on to Member questions. Each Member will 
be recognized for 5 minutes, and I will start with myself.
    Administrator Bose, in 1974, FRA began its automated track 
inspection program. Just a few years ago, the Class I railroads 
began operating automated track inspection, or ATI, test 
programs. Four of those ATI test programs continue today. Are 
the technologies operated under those ATI test programs 
prohibited by the current FRA regulations?
    Mr. Bose. Mr. Chairman, no.
    Mr. Payne. OK. Yesterday, FRA finalized a rule on Fatigue 
Risk Management Programs that we required in 2008. Can you 
please share with the committee how you plan to ensure 
railroads' plans seriously tackle fatigue, a known but 
persistent safety threat?
    Mr. Bose. Thank you for the question, Mr. Chairman. Fatigue 
is definitely an issue that FRA focuses on. As you know, safety 
is FRA's priority. And, when it comes to fatigue, it is also 
about hours of service and rest, and we know that the cognitive 
abilities of railroad workers are very, very important.
    So, when it comes to fatigue, we want to make sure that we 
are looking at the whole picture, and we think the Fatigue Risk 
Management rule will help us address those. Another important 
component of that is the consultation with workers that we 
expect to happen in a robust, comprehensive way.
    Mr. Payne. OK. So, you definitely see the issue around 
fatigue continuing to plague the safety of the overall system?
    Mr. Bose. Yes, sir.
    Mr. Payne. OK. All right. Thank you.
    I now recognize Mr. Crawford for 5 minutes.
    Mr. Crawford. Thank you, Mr. Chairman.
    I want to direct this question to Administrator Bose. 
Automated track inspection safety technology has been developed 
for years with the unwavering support of the FRA. ATI has been 
shown to help reduce freight rail accidents and identify safety 
risks that manual inspections may not spot. ATI is also meant 
to complement--not to replace--manual inspections and can free 
up inspectors to focus on other important safety duties.
    Given the clear proven benefits of ATI for freight rail 
safety, why has the FRA suddenly decided to deny petitions to 
continue testing ATI technology?
    Mr. Bose. Thank you for the question, Congressman. I am 
limited in some of my responses because the issue is in 
litigation, as you know, and there is also petition for 
reconsideration. But I am going to make some factual statements 
because I want to answer your question to the extent that I 
can.
    First, prior to my arrival at FRA, those test programs that 
you talked about didn't seek public comments. It wasn't a 
transparent process. We have cleared that up. We are going 
forward. We made sure that it is a transparent process so that 
we can get comments in that.
    Second, railroads can use ATI without FRA test programs, 
without waivers. Like you said, ATI can catch things that 
visual inspections can't. Visual inspections can catch things 
that ATI can't, such as roadbed vegetation, tie condition, 
track deponent defects. And those are really, really important 
parts of track inspections that I just wanted to highlight.
    We continue the four test programs. We are going to get 
data from those, Congressman, and we are going to use that data 
to see how to go forward. The Railroad Safety Advisory 
Committee is also looking at this. We want to do this in a 
collaborative way, and they are looking at the issue directly, 
and hopefully we can reach a consensus on a path forward.
    Mr. Crawford. As I indicated in my question, ATI is meant 
to complement, not replace manual inspection, so, I think the 
two can work together in a complementary fashion. But let me 
move on.
    During the Obama administration, FRA released a proposed 
rule to require a Class I freight rail to operate with two 
people in the cab of a locomotive. FRA noted it could not, 
quote, ``provide reliable or conclusive statistical data to 
suggest whether one-person crew operations are generally safer 
or less safe than multiple-person crew operations,'' end quote.
    The Trump administration then withdrew that rulemaking, 
recognizing a lack of safety data to justify its 
implementation. Given plans to now revive the two-man crew 
rule, is there any new data to support a safety justification 
for this rule?
    Mr. Bose. Congressman, as we have put out publicly, the 
draft proposed rule is in review right now, and it is going to 
address the things that you brought up. We know that, in the 
past, data has been a concern. We have heard about it in my 
1\1/2\ years at the FRA. We want to make sure that the proposed 
rule that we have gets a robust set of comments so that we know 
what stakeholders are saying about the rule and the public is 
saying about the rule. We definitely want to address the risks 
associated with less than a two-person crew.
    Mr. Crawford. Well, let me just say that I have some 
concerns about this. It is possibly that the administration may 
just be filling another campaign promise to labor unions. I 
mean, we are suffering from the worst inflation we have seen in 
40-plus years, and now we are talking about increasing labor 
costs, the brunt of which are borne downstream by the consumer.
    So, I want to make sure that whatever rulemaking we are 
engaging in is actually based on real safety concerns and not 
just fulfilling promises to unions on the part of the 
administration. The reality is that it was withdrawn under the 
previous administration for that very reason, because there was 
no empirical evidence that suggested that there was greater 
safety with multiple-person crews. And so, I just want to make 
sure that, going forward, that that is the primary 
consideration is safety and not promises to particular 
stakeholders that were made during a campaign.
    And, with that, I yield back.
    Mr. Payne. The gentleman yields back.
    And, with all due respect to my colleague, Class I's 
primarily run two-man crews now, so, there would be no major 
increase in labor costs.
    Next we will hear from the gentleman from New Jersey, Mr. 
Malinowski.
    Mr. Malinowski. Thank you, Mr. Chairman.
    It is good to see you, Administrator Bose. Congratulations 
on your confirmation and thank you in particular for all your 
work on the Gateway project, both before you took this job and 
today. You and I toured the existing Hudson Tunnel with 
Secretary Buttigieg last summer, and I know you have been a 
champion of this project, which thankfully now is funded under 
the bipartisan infrastructure bill, and I look forward to 
working with you to get it over the finish line ahead of 
schedule and under budget. That is the challenge before us 
today.
    I want to get right back to the topic that the ranking 
member raised. June of 2019, your predecessor was sitting in 
that chair, and I asked him what I thought were some pretty 
straightforward questions about the length of trains and crew 
sizes. So, I asked him, should we have 3-mile-long freight 
trains? Should we have 5-mile-long freight trains? Should we 
have 10-mile-long freight trains?
    I asked him: Let's say you have a 3-mile-long train 
operated by one crewmember and the train breaks down, how long 
would it take for that single crewmember to walk from the front 
of the train all the way to the back of the train to try to 
figure out what was going on as first responders try to get 
around the train, and, in some cases, entire communities are 
simply divide in half? And Administrator Batory said: Well, it 
might take 2 hours, 3 hours.
    Then he added: It depends on if he is a good walker or not.
    I don't know if that qualifies as data, but actually it 
kind of does make sense. I mean, isn't it just common sense 
that there are safety concerns related to a very long train 
with one human being on the train? Trains break down. No matter 
how good the technology is, at the end of the day, you are 
going to need a person or people to be able to figure out what 
went wrong and to fix it and ideally to prevent the thing from 
going wrong in the first place. Would you agree?
    Mr. Bose. Congressman, absolutely. And I will tell you 
something, when I came to FRA, that was sort of amazing to me 
was that FRA was not measuring train length in accidents and 
investigations. We have changed that because it is always about 
the data we hear, so, we are now taking stock of the size of 
trains. And, like you also said, training is an important part 
of that. Communication between the different parts of the train 
is an important component of that. So, train length brings a 
whole host of issues that are now things that we have to 
address in a holistic way.
    Mr. Malinowski. OK. Thank you so much.
    Switching gears, or maybe switching tracks, I want to 
quickly reaffirm my support for a few grant applications from 
New Jersey Transit that are currently under review at FRA. The 
first, Mega Program grant to enhance 69 commuter rail and bus 
stations across New Jersey and New York; second, a State of 
Good Repair grant for the Tonnelle Avenue right-of-way bridge, 
which is part of the Hudson Tunnel project; third, a State of 
Good Repair grant for improvements to Newark Penn Station, as 
well as for planning and preconstruction activities for the 
Hunter Flyover. I hope for full and fair consideration at FRA. 
I look forward to hearing back from you soon on those.
    And I want to particularly ask you about the Hunter 
Flyover. I am sure you are familiar with that project from your 
previous work. It is critical to one of the main commuter 
railways in my district, the Raritan Valley Line. I wonder if 
you might offer some thoughts about the importance of that 
project.
    Mr. Bose. Congressman, anytime we can make improvements on 
rail, and particularly known spots like that one, we absolutely 
want to. And we know that the grant programs that the 
bipartisan law enabled and the projects, the opportunities that 
it presents are going to lead to increased safety outcomes and 
also better capacity and also more opportunities to increase 
ridership. So, projects of that nature are the things that, 
again, the Bipartisan Infrastructure Law, just a year ago, it 
wasn't even possible, and now there is an endless amount of 
possibilities.
    Mr. Malinowski. Thank you so much.
    I yield back.
    Mr. Payne. The gentleman yields back.
    We will now hear from the gentleman from Illinois, my 
friend, Mr. Davis.
    Mr. Rodney Davis of Illinois. Thank you, Mr. Chairman. I 
love that suit today, too. I have got to get me one of those.
    First off, my first question is going to be for 
Administrator Bose. In December of 2019, your predecessor, 
Administrator Batory, launched the blocked rail crossing 
incident reporter for public and law enforcement to report 
blocked highway-rail grade crossings. And the goal of the 
program was to address blocked crossings through identifying 
chronic problems and working to address the underlying issues.
    While blocked crossings occur in every corner of America, 
in my district, we are having issues in the communities of 
Bement and Decatur that I urge you to work with all parties to 
address. My staff has consistently referred constituents to the 
FRA's incident reporter, and so far, 235 reports have been 
filed in Bement and 197 reports have been filed in Decatur 
since the tools launched.
    In these municipalities, trains block crossings for hours 
and sometimes days at a time. The communities are literately 
divided. Emergency response times are slowed, access to schools 
cut off, and frustrated citizens consistently have their lives 
disrupted. What is the FRA doing with the data collected, and 
what steps are being taken to further address blocked 
crossings?
    Mr. Bose. Congressman, thank you for that question. And I 
wish your communities didn't experience those blocked 
crossings.
    At FRA, what we do with that data is we look at it very 
closely, to the extent that we can reach out to the railroad 
companies directly and share that data with them, let them know 
that we are hearing a lot of complaints from that specific 
area, and talk to them about operational changes that they can 
make, improvements that they can make.
    Also, now, again, with the grant programs that we have, if 
we need to grade separate, we talk about those opportunities as 
well. But the contact with the community and our constant back 
and forth with the community and the railroads is very, very 
important. So, we want to facilitate those conversations, and 
we want to make sure that we can reach a conclusion, a positive 
outcome collaboratively.
    Mr. Rodney Davis of Illinois. Are these numbers high 
compared to other communities?
    Mr. Bose. They are high.
    Mr. Rodney Davis of Illinois. OK. On another issue in my 
district, we have consistently had the worst on-time service 
for the Saluki Express and the Illini Express Amtrak routes in 
central, eastern, and southern Illinois. Can you give me any 
update on what is being done to address those issues on those 
lines? Has the FRA heard anything from the rail lines or from 
Amtrak?
    Mr. Bose. Yes, Congressman. I am glad you asked about that. 
We now have quarterly metrics and standards reports that we get 
reports on on-time performance, and we are now at a point where 
we have had consistent quarterly reports where we can look at 
next steps. And I know Amtrak is looking at next steps to 
address those issues in a comprehensive manner.
    As you stated, these lines are well known to have had years 
and years of continuous delays, and now we think we have the 
tools in our toolbox necessary to move forward in a positive 
direction to address those. And, again, our funding programs, 
if there are issues with specific places that need sidings, 
that need improved grade crossings, we have the ability to fund 
those projects, so, let's address them together and move 
forward so that there are no delays.
    Mr. Rodney Davis of Illinois. I appreciate that. Are the 
tools you are talking about tools to address the short shunt 
issue on those particular lines?
    Mr. Bose. Yeah, the short shunt issues are things that we 
are looking at actively right now with Amtrak, with Canadian 
National in particular. And we have been looking very, very 
closely at them, and we think that there has been some very 
positive movement.
    Mr. Rodney Davis of Illinois. Well, I appreciate your 
optimism, but forgive me for being somewhat of a pessimist 
because I have had this same conversation for years now, and I 
get a lot of positive talk that we are all working together, 
but I don't see the improvement to fix the short shunt issue on 
those particular lines.
    And I said it the last time your predecessor was here and 
the Amtrak CEO was here and anyone related to this particular 
problem, we have got to see results, and, frankly, until we see 
results, we are going to continue to push and put more pressure 
to help our constituents.
    And I appreciate your time today. Thank you for your 
responses.
    I will yield back the balance of my time.
    Mr. Payne. We will now hear from the gentleman from 
Massachusetts, Mr. Moulton.
    Mr. Moulton. Mr. Chairman, thank you very much. It is an 
honor to be here.
    Gentlemen, a big topic of conversation these days in the 
freight rail world is Precision Scheduled Railroading. And it 
seems to me that PSR affects a variety of constituents. It 
affects customers, our shippers, the employers of businesses 
that rely on rail transportation. It affects citizens who 
benefit from shipping more goods by rail, like literally 
everyone whoever gets on a highway or a road and encounters a 
truck.
    It affects railroad employees and most specifically their 
safety. Speaking of safety, the American public, of course, is 
affected by railroad safety. It affects railroad infrastructure 
writ large, how much money railroads are pouring into improving 
their infrastructure or whether it stays the same. PSR affects 
Wall Street shareholders, and I would even add that it affects 
Hunter Harrison's legacy.
    But it seems to me that, on that long list, customers, 
American citizens, railroad employees, railroad infrastructure, 
Hunter Harrison, and Wall Street, the only beneficiary from PSR 
has been Wall Street. I don't even think Hunter Harrison's 
legacy will come out looking good in the long run here.
    So, I would like to ask a few questions about this. We have 
seen in recent days hiring plans at railroads right now focused 
on running more trains trying to address the capacity problem, 
but maintenance positions are completely stagnant. Since 
railways drastically started reducing headcount in 2016 due to 
PSR and an obsession with raw operating ratios, collision rates 
have been stagnant despite purported technological advances in 
safety, and we don't see more maintenance-of-way employees 
coming back to work.
    Administrator Bose, Mr. Chapman, either of you can answer 
this, is there a connection here, and what are we going to do 
to get the railroads better maintained?
    Mr. Chapman. Let me say first, from a safety standpoint, we 
are certainly aware of the concerns, the PSR concerns. We have 
not investigated any accidents that were specifically related 
to PSR, but the issues that folks have expressed concerned 
about--fatigue, external issues, training, oversight, makeup of 
trains--those are issues that we would look at in any accident 
investigation.
    So, it is on our radar to the extent that the concerns that 
people are expressing might be a factor in a particular 
accident. We have had no accident investigations that were 
specifically related to PSR.
    Mr. Bose. Congressman----
    Mr. Moulton [interrupting]. Mr. Chapman, have derailments 
been on the rise?
    Mr. Chapman. I am sorry?
    Mr. Moulton. Have derailments been on the rise?
    Mr. Chapman. Let me check on that number. We will get you a 
number here in just a minute. I don't believe that they are on 
the rise.
    Mr. Moulton. What about train breaks, trains breaking 
apart, have they been on the rise?
    Mr. Chapman. I am not aware that we have seen a pattern in 
that regard.
    Mr. Moulton. Well, I think we better check into that, 
because I have heard from several railroad officials that that 
is exactly the case, and it is striking to me that you would 
not know.
    Administrator Bose?
    Mr. Bose. Congressman, as you know, safety is FRA's 
priority, and PSR is a term that encompasses many different 
aspects of safety and operations. I can assure you that FRA is 
looking at the operational and process changes that seem to 
have resulted from the railroad's implementation of what is 
called PSR.
    We know that the operation of fewer, longer trains without 
the technology and training to support such operations could 
affect safety, along with the removal of mechanical forces that 
allows traincrews to perform mechanical inspections. And we 
know that technology replacing the workforce with technology 
that is not as effective may not lead to good outcomes, and we 
are even looking at things like ineffective job briefings.
    So, we have to look at all of this in a holistic way, 
including hours of service, fatigue, and training. So, I want 
to assure you that we are on the job here looking at things to 
make sure that safety is paramount.
    Mr. Moulton. Well, Administrator Bose, it is not just 
safety; it is about service. It is about the safety of our 
highways because a lot of customers are shifting traffic to 
trucks because they can't get the service that they need from 
the common carrier railways.
    And, Mr. Chapman, I think that Mr. Bose's statement there 
was a sort of long, technical way of saying that we better look 
into train breaks and derailments because I think we will find 
that they are absolutely on the rise and they are related to 
longer trains.
    Thank you, Mr. Chairman. I yield back.
    Mr. Payne. The gentleman yields back.
    We will now her hear from the gentleman from Illinois, Mr. 
Bost, for 5 minutes.
    Mr. Bost. Thank you, Mr. Chairman.
    Administrator Bose, you have emphasized the importance of 
the role that innovation would play in reaching FRA's safety 
goals. Now, I am sure that as technology evolves and our Nation 
innovates, it is important to use the most up-to-date 
information and data to make decisions. Will you make a 
commitment today to using the most up-to-date data when making 
decisions about the use of new technology, and will you commit 
to sharing with this committee the data to make those decisions 
once the FRA has decided it?
    Mr. Bose. Yes, sir.
    Mr. Bost. And, in April, the Biden administration announced 
a trucking action plan in an attempt to help the industry. 
During the same month, the Secretary called for railroads to 
improve their current self-service levels, which are similarly 
being impacted by the Nation's challenge to recruit and retrain 
qualified employees.
    However, FRA has not acted with the same urgency to help 
railroads address these workforce challenges. Why have you not 
taken steps for rail to address those concerns, and what if any 
specific steps has the Biden administration or DOT taken to 
address workforce shortages in the rail industry?
    Mr. Bose. Congressman, first, I just want to lead off with 
the railroads and their workforce have been instrumental in 
helping us get through the pandemic and the jobs that they have 
done throughout this time.
    We know that there have been backups on the supply chain. I 
point you to the April 27 Surface Transportation Board hearing 
where there was an earful said about the supply chain issues 
that the railroads are facing. The Surface Transportation Board 
is looking at it very closely. Just yesterday, they issued an 
order because the railroads didn't provide sufficient data and 
didn't answer the questions that the Surface Transportation 
Board asked in terms of reporting. So, we need to continue to 
get accurate information to see what is going on in the first 
place.
    When you mentioned worker shortages, that is a perennial 
issue that has developed in recent years because of cutbacks 
that the railroad companies have made themselves. Now, I am not 
in the business of them operating and hiring workers or 
removing workers, but the railroads themselves have said that 
there is a worker shortage.
    We want to make sure that the workers that they retain and 
bring on board have a safe workplace, have a good workplace so 
that they can retain those workers, and those workers can 
continue and make railroading their career, their life's 
ambition, and also a safe workplace. We want to make sure of 
that.
    In terms of supply chain, just quickly, Congressman, I know 
my time is short, the President established a Supply Chain 
Disruption Task Force. The Secretary is a part of that. The 
Port Envoy, General Lyons, was just appointed a couple of weeks 
ago. He works closely with the FRA to address any challenges 
that we see on the supply chain having to do with rail. And we 
also work cooperatively with the railroad companies themselves 
to facilitate anything that they need from us to help them move 
the supply chain and leave those disruptions behind.
    Mr. Bost. Yeah, the only thing I disagree with you on is 
the fact that you would say the railroads--that they cut their 
workforce. I have been talking with them; they are having 
trouble recruiting and getting engineers and workers back after 
COVID like other industry.
    Now, the concern I have is the same thing that I have in 
the trucking industry, which is the industry I came from. When 
we are trying desperately to recruit new employees, safety is 
vitally important. And, with safety, we implemented it both in 
trucking and rail and other heavy equipment that certain safety 
tests are given that would check your blood alcohol level and/
or any drug level.
    And I believe that we are having several States right now 
that have legalized marijuana, and with alcohol, it only takes 
about 8 hours to process out to a safe level. With marijuana, 
we end up with a test that we have, all of a sudden we have 
these new employees popping positive and/or not being able to 
pass a drug test at all. And, with that, we are losing valuable 
employees that we should have.
    And I think it is a concern that we should look into on the 
national level, though we don't want to violate the 10th 
Amendment. Still, many of these States are putting us in 
situations where we are having trouble recruiting for these 
type of jobs. I appreciate your input on this.
    And, with that, I yield back.
    Mr. Payne. The gentleman yields back.
    We will now have Mr. Garcia from Illinois for 5 minutes.
    Mr. Garcia of Illinois. Thank you, Chairman, for holding 
this hearing on freight rail safety.
    And thank you to our witnesses on both panels for appearing 
today.
    My first question is for Mr. Bose of the FRA. In your 
testimony, you note some of the recent actions that the FRA has 
taken to address fatigue among railroad employees and advance 
traincrew staffing safety requirements. I applaud these actions 
and your leadership, but more action, of course, is needed to 
address the harm to workers from Precision Scheduled 
Railroading, including the increased safety risk workers are 
facing as a result of PSR.
    Many of the labor representatives testifying on the second 
panel have highlighted other issues that need to be addressed. 
These issues include the lack of time for carmen to inspect 
cars, railroad scheduling and attendance practices like Hi-Viz 
that lead to more fatigue among workers, and a lack of 
protections for railroad workers performing track work.
    What is the FRA doing to address these issues, and how is 
the FRA in general working with labor unions and railroads to 
address railroad employees' concerns about the effects of PSR?
    Mr. Bose. Thank you for that question, Congressman. This is 
definitely an issue we hear a lot about, especially due to the 
attendance policies that some of the railroads have instituted 
over recent times. When it comes to fatigue, FRA has instituted 
a couple of things that I want to share. When it comes to any 
accident investigation that involves human factors as a 
possible cause of the accident, we collect information about 
fatigue. We also put out a survey at the beginning of this year 
where we got upwards of 10,000 comments from specifically 
conductors and engineers about their experiences with fatigue 
and hours of service. So, we are analyzing that data right now.
    In addition, I have also reminded the railroads when it 
comes to their attendance policies that rest away from home is 
not the same as rest at home, and you can't in perpetuity be 
away from home and be properly rested.
    In addition to that, Congressman, one more aspect of what 
FRA does, we are also continuously looking into research and 
conducting research about fatigue and its impact on workers. 
So, we are addressing it in many ways, but I get your broader 
point that it is a very important topic that we need to address 
on a continuing basis here and now.
    Mr. Garcia of Illinois. Thank you for that. I want to 
squeeze two more questions in, so, your brevity would be much 
appreciated.
    Blocked railroad crossings are a big issue in my district 
as well. You mentioned in your testimony that you are planning 
to do outreach to local communities to get their input as you 
update FRA's blocked rail crossing portal. Can you expand on 
this outreach, what it looks like, and how my local communities 
can give you input if they would like to? And are you planning 
to do any visits to locations with a lot of blocked crossings 
like Chicago to meet with local communities and residents?
    Mr. Bose. Congressman, a couple of things there. We just 
put out a request for information on ways to make our portal 
even better for blocked crossings. So, I urge your communities 
to provide input through that process.
    The second thing is the Railroad Crossing Elimination 
Program in the Bipartisan Infrastructure Law that you 
supported, we are going to go out with a notice of funding 
opportunity and also in that do webinars for communities so 
that they can apply for funding. So, those are two ways of 
doing it.
    FRA has had offices based in communities throughout the 
country, in Illinois is an example. So, we have field personnel 
spread throughout the country, and they are always available to 
talk to your communities. And I will follow up with your office 
directly to make sure that they contact and speak to your 
communities and get that input directly.
    Mr. Garcia of Illinois. Thank you. Thank you. I want to 
squeeze my last question in.
    Mr. Cothen's testimony makes a compelling case that the FRA 
must take a more active role in overseeing the railroad's 
management of physical forces on a train as it moves. Railroads 
are blaming human error and other miscellaneous causes when 
they report train derailments to the FRA, but oftentimes it is 
incorrect decision of the railroad to make up equipment of a 
train that leads to its derailment. The improper coding gives 
an incorrect picture of the causes of train derailments.
    So, what action is FRA taking to hold railroads 
accountable, and what is the FRA doing to better identify the 
causes and ensure that codes appropriately reflect the 
circumstances or derailments?
    Mr. Payne. Quickly.
    Mr. Bose. Congressman, we are going to improve our coding. 
Just so you know, we are aware of Mr. Cothen's paper. He 
definitely shared it with FRA, and I think it is an important 
contribution to the dialogue. As you know, the National Academy 
of Sciences is doing a study on long trains. FRA has also a 
study that has been ongoing that focuses on the break aspects 
of long trains.
    So, we are going to continue to make sure that research 
goes forward in a comprehensive way and that we seek comment 
from the workers that operate these trains so that we know that 
the research addresses their real-life experiences.
    Mr. Payne. Thank you.
    Mr. Garcia of Illinois. Thank you, Mr. Chairman.
    Mr. Payne. Next, we will hear from the gentleman from 
California, Mr. LaMalfa.
    Mr. LaMalfa. Thanks, Mr. Chairman.
    I know the conversation will continue on the issue with 
railroad track time and the labor issues with that. When I have 
talked with folks on either end of the industry, whether on the 
train side or the receiving end of those products, it is a 
giant problem, so, I appreciate you being here today and 
addressing that.
    One of the issues that we are looking at is that--well, 
first, let me back up a little bit. Not long ago, the Biden 
administration announced a trucking action plan to help the 
industry increase the number of truckdrivers we have on the 
road, which is even more critical with some of the train issues 
we have. So, it is especially for the long-haul routes, but we 
have not seen, that I know of, an action yet taken by the 
administration to replace or improve the employment barriers 
for the railroad side of it. So, as we are talking about maybe 
an improvement in the trucking area, we need to have that 
dramatically increased and improved in railroad employment.
    So, the Secretary of Transportation has called for 
railroads to improve their service levels. Railroads have 
stated on multiple occasions they are having difficulty 
recruiting and retaining, et cetera.
    So, with the issues we are having with the supply chain, 
and whether it is imports or domestic production, we have a lot 
of ability in this country to make up for imports. And we 
shouldn't be so dependent on imports anyway, in my view, for 
food production and fertilizer, as we know, because, obviously, 
for food production, you need fertilizer to get the yields we 
are accustomed to, so we can make up for it with the capacity 
we have in this country.
    As you know, urea is going to be a bigger problem since 
major exporters, Russia and China and Qatar, they are cutting 
it off. And so, what is important about urea? Not only does it 
have the nitrogen source for fertilizer and growing food, but 
what is known as diesel exhaust fluid to keep the newer engines 
from post-2010 running cleaner. It is an additive that 
basically is fed into the exhaust system downstream of the 
engine that, if you don't have it on trucks, tractors, other 
equipment that are programmed for it, it won't run. Not only 
would it not run well, the computer system basically shuts it 
down. You can't operate the vehicle, the tractor, whatever, 
without the diesel exhaust fluid, the blue fluid, as you know.
    So, there is becoming a big supply chain problem on that. 
And what can the administration do to be helping with the 
production of that as well as the transportation? Because my 
understanding is the railroad folks are, without the labor to 
move the product, are starting to cut back some of the 
truckstop people that would be vending it. They just don't have 
the capacity to move it. This is going to be a giant crisis 
here--yet another one--really soon if trucks and other 
equipment that is needed does not have this DEF, the DEF 
product to keep those newer cleaner engines operating.
    Now, we can do other things. We can pull old trucks out of 
inventory that don't require that or maybe go back to older 
tractors or try to get a waiver on bypassing the system. That 
is not going to be popular with EPA or anybody. So, what should 
we do about this? DEF is going to be a big problem, and if the 
rails can't move it, what are we going to do about that?
    Mr. Bose. Congressman, that is something that I am happy to 
look into more and address it.
    In terms of working with the industry, we are happy to do 
that and continue doing that to find ways to move the goods and 
the commodities that we need.
    I just want to mention and address what you talked about 
workforce and increasing the railroad workforce in the CRISI 
grants that I mentioned in my opening statement. There was a 
grant that we gave for workforce development efforts. It was 
for Amtrak mechanical employees specifically. But, again, the 
funding that we have available now is going to unlock some 
possibilities, and workforce improvement--we are increasing 
workforce opportunities. We are going to look for----
    Mr. LaMalfa [interrupting]. Well, Amtrak doesn't move the 
ball on what I am talking about here, and I need you to grasp 
the urgency of what I am talking about here. Because if we 
don't have this fluid, this DEF getting to where it needs to 
be, the trucks don't run, right. And ``if you have got it, a 
truck brought it'' is one of the common phrases, is that goods, 
food, whatever is not going to get moved from production to the 
shelf or even pre-production, from the fields to the mill, 
whatever it is.
    Mr. Payne. Five seconds.
    Mr. LaMalfa. This is a critical situation. So, we need not 
be just looking into it. We need urgency from the 
administration to look at an immediate way to make this happen. 
Thank you.
    Mr. Payne. Thank you. The gentleman's time has expired.
    We will next hear from the gentlelady from California, Mrs. 
Napolitano, for 5 minutes.
    Mrs. Napolitano. Thank you, Mr. Chair.
    Mr. Administrator, it is good to see you again. I know you 
are familiar with my community of San Gabriel Valley of 
California, which has 160 trains daily [inaudible] in 
communities next to businesses and along school property. There 
are many grade crossings that cause major safety congestion and 
pollution concerns in my district. How is the infrastructure 
law improving grade crossing safety and installing grade 
separations?
    And, secondly, I have significant concerns over the train 
length and the impact it has on safety in local communities. I 
have waited over 20 minutes for a train, over 100-200 railcars 
passing my community. What is the FRA doing to address the 
increased length of trains?
    Mr. Bose. Congresswoman, thanks for those questions. First 
off, when you are talking about grade crossings and improving 
or eliminating those, I have had the opportunity to visit both 
the Ports of Los Angeles and Long Beach. We also pulled 
together a series of communities and local governments in that 
area to talk to them about the opportunities in the Bipartisan 
Infrastructure Law and really pointing them to programs like 
CREATE where they can come together. And I know you are 
familiar with the Alameda Corridor and all the improvements 
there----
    Mrs. Napolitano [interrupting]. It runs right through my 
district.
    Mr. Bose. Yes, ma'am. And so, that is the kind of effort 
that we want to make sure the communities are aware of.
    When you talk about long trains, it is definitely something 
that the FRA is looking into. As I mentioned earlier, that just 
collecting the data on that is something that FRA has started 
to do to make sure that we know what is going on in the system 
overall. We talked about in-train forces and the effects that 
long trains have on that. We also need to make sure the workers 
operating those trains are trained in the proper way possible. 
And also, there can be communication breakdowns that happen on 
long trains.
    So, the points that you made are very good ones, and we are 
happy to follow up with your office more directly.
    Mrs. Napolitano. Well, I would like to follow up with you 
and make sure that maybe, if you have a chance to visit my 
district, you can see what impacts it has on the people and on 
the business in the area.
    But I certainly am very pleased that you are there to take 
care of some of the issues that we talked about. And maybe we 
can--one more question that was just brought to mind is 
Operation Lifesaver. I know it is a volunteer group out of the 
railroad. But how can we help make it a committee or a group 
that really focuses on safety, that is not volunteer, that is 
set up by you and the railroads? Because it is essential when 
you have grade crossings that are near schools and there are 
kids involved.
    Mr. Bose. Congresswoman, Operation Lifesaver is very much a 
part of FRA's efforts. Just last week, they attended a 
conference about level boarding and grade crossing issues. So, 
they are a very big partner to FRA. We fund them based on the 
money that Congress provides on a recurring basis year after 
year, and we definitely look for any opportunities to continue 
to partner with them. They just had their 50th anniversary, and 
we are happy to celebrate it with them. But we are looking for 
ways to enhance their views on that.
    And I will pass it over to Mr. Chapman.
    Mr. Chapman. And, Congresswoman, I will add that we at NTSB 
have a very good relationship with Operation Lifesaver. I work 
with them myself personally because of my own personal interest 
in grade crossing safety. They do outstanding work and, 
obviously, want to see additional support for them in any way 
possible.
    Mrs. Napolitano. Well, I would like to be sure that we have 
our schools available to tap into those sources, because it is 
quite a problem with Alameda Corridor-East that doesn't have 
all the grade crossings that are necessary to prevent any 
accidents or anything happening in the area.
    Thank you very much, Mr. Chair, and I yield back.
    Mr. Payne. The gentlelady yields back.
    We will now hear from Mr. Balderson for 5 minutes.
    Mr. Balderson. Thank you, Mr. Chairman. And thank you both 
for being here today.
    My first question is for Administrator Bose. About a month 
ago, FRA announced the establishment of the Corridor 
Identification and Development Program. According to the FRA, 
the program will facilitate the development of intercity 
passenger rail corridors. However, the FRA will not require 
that any proposals demonstrate the commitment of host freight 
railroads.
    Does FRA believe freight railroad consolidation and 
participation is necessary in this program?
    Mr. Bose. Congressman, on shared corridors, especially 
those owned by host railroads, projects will not go forward 
without the host railroads' cooperation and participation.
    Mr. Balderson. Thank you. Can you expand a little bit more 
on the role of the freight railroads in this program, please?
    Mr. Bose. In the Corridor Identification and Development 
Program? Well, I will start from the beginning. Right after the 
Bipartisan Infrastructure Law passed, we did several webinars. 
We reached out to the Class I railroads directly to ask them 
for comments as a part of the program so that the program would 
be informed by their views and would be stronger based on their 
views. So, we sought their input in the first place.
    Then when we developed the program, we knew that going 
forward, again, that host railroads were absolutely necessary 
in participating. And we emphasize that in the technical 
assistance that we provide to any community, any State, any 
locality that is looking at doing the corridor program.
    Mr. Balderson. OK. Thank you very much.
    My next question, Administrator, is: In the FRA's guidance 
for the Corridor Identification and Development Program, the 
FRA is requiring applicants state whether they intend to select 
Amtrak as its operator or not. Can you explain why FRA is 
requiring this determination so early in the process?
    Mr. Bose. Congressman, I am not--can you repeat that? I 
didn't catch that.
    Mr. Balderson. Yes, sir. I sure can. I apologize.
    In the FRA's guidance for the Corridor Identification and 
Development Program, the FRA is requiring applicants state 
whether they intend to select Amtrak as its operator or not. 
Can you explain why the FRA is requiring this determination so 
early in the process?
    Mr. Bose. Thanks for the question, Congressman. We are just 
seeking that for informational purposes. It in a way helps 
determine how far along the corridor development is. Whether it 
is Amtrak or a private operator or a non-Amtrak operator, it is 
just a question asking if that box has been checked off.
    Mr. Balderson. OK. I am going to follow up. To be clear, 
would the FRA encourage and protect competitive bidding for 
other rail operators in this program?
    Mr. Bose. Congressman, absolutely. And let me be clear on 
that. We have a private operator in Florida. We have a private 
operator developing a railroad in California, Nevada, in Texas. 
And we encourage other private operators throughout the country 
to look at passenger rail opportunities in the United States.
    Mr. Balderson. Thank you very much. I appreciate your 
answers.
    And, Mr. Chairman, I yield back.
    Mr. Payne. The gentleman yields back.
    We will now hear from Mr. Johnson from Georgia for 5 
minutes.
    Mr. Johnson of Georgia. Thank you, Mr. Chairman, for 
holding this hearing. And I want to thank the witnesses for 
your time and your testimony.
    And I apologize for the bad lighting. I am in a bad 
situation, trying to do the best I can.
    But the U.S. has the largest rail network in the world, and 
keeping such an extensive system running safely is a heavy 
lift. Many issues continue to plague railroads today, and they 
are due, in part, to cost cuts and barebones operational plans 
implemented across freight railroads. And these cost-cutting 
measures are celebrated and encouraged by Wall Street. 
Meanwhile, Americans face job losses, poor rail service, and 
potentially deadly situations for railroad employees. Safety 
and quality of service should always be the priority, not 
profit.
    In 2021, Class I railroads had more than 1,200 train 
accidents and 9 employees died. In 1 month alone, two 
conductors with less than a year of service were struck by 
moving equipment and suffered serious injuries. Despite that, 
conductor certification training has been shortened by the 
railroads when onboarding new conductors.
    Mr. Bose, does the FRA have concerns about the quality of 
certification trainings, given that the reduced certification 
period risks worker safety?
    Mr. Bose. Congressman, that is something that FRA looks at 
every day, and we know the concerns that have been expressed. 
And we have actually caught some situations where the training 
and certification process needs to be improved, and we have 
shared that with the railroads directly so that the system can 
be safe.
    Mr. Johnson of Georgia. Are there any other plans that FRA 
has to address that concern?
    Mr. Bose. Yes, sir. The Bipartisan Infrastructure Law 
actually asks FRA to look at the certification program, and we 
have that underway. And, again, we are looking at those 
training programs railroad by railroad. And anytime we identify 
gaps or deficiencies or areas where improvements are needed, we 
make sure that the railroad makes those right away. We want to 
make sure that when railroad workers operate on the trains or 
provide service, that they are well trained and well versed. 
These are special skills that are required to be railroaders.
    Mr. Johnson of Georgia. Thank you.
    Mr. Chapman, in your testimony, you detail a number of 
accidents, including some with fatalities, that occurred 
despite use of the train approach warning, or TAW method, used 
by crewmembers.
    Mr. Chapman, can you briefly describe the TAW method for us 
and some circumstances where it would and would not be 
appropriate?
    Mr. Chapman. Congressman, it is actually a very simple 
system. It relies upon a watchman or a lookout to spot oncoming 
trains and then to warn the crew, the working crew, of the 
oncoming train. And the requirement is to allow the crew to 
clear within 15 seconds before the oncoming train.
    The problem is that it is highly susceptible to human 
error, frankly, distraction, failure to properly anticipate the 
oncoming train. Trains move very quickly. And so, we have seen 
some accidents that were quite tragic.
    The one that I highlighted in my statement was the Amtrak 
accident in Bowie, Maryland, where a young man was killed, 
struck by an oncoming Amtrak train moving at 100 miles an hour. 
He was standing on an active track. Had no other place really 
where solid footing was available to him.
    What we believe is that, in controlled track areas, we are 
not seeing the railroads take sufficient advantage of the 
capabilities of the PTC system, which allows speed limitations 
and other work limits to be put in place to ensure that we 
don't have to rely on such a relatively rudimentary system as 
train approach warning.
    Mr. Johnson of Georgia. Thank you.
    My time has expired, and I yield back.
    Mr. Payne. The gentleman yields back.
    We will now hear from Mr. Johnson of South Dakota.
    Mr. Johnson of South Dakota. Thank you very much, Mr. 
Chairman.
    I would like to have a conversation with Mr. Bose, 
particularly related to crew size. I know a few years ago FRA 
had noted that it lacked empirical evidence to suggest that 
one-person crews were either more safe or less safe than two-
person crews.
    Sir, does the FRA have any new data or different findings?
    Mr. Bose. Congressman, we will be happy to share that with 
you when the notice of proposed rulemaking comes out in the 
near future.
    In terms of data, we know in the last NPRM, the notice of 
proposed rulemaking, in 2016, cited Casselton, North Dakota, as 
a place where an incident happened, where the crew worked 
together. And having a less than two-person crew in that 
situation could have been an even more negative outcome there.
    You mention data. FRA also, subsequently to that withdrawal 
notice, has had research, and we have conducted even more 
research about crew size. So, we are happy to have that a part 
of the record when the notice of proposed rulemaking goes out.
    Mr. Johnson of South Dakota. Yes. And I do think--I mean, 
the North Dakota example is illuminating. Of course, it is just 
one example. It is an anecdote. We can learn from those things, 
but I do think we want to make decisions. We want to promulgate 
rules based on good data. Are you not in the position to be 
able to release that data to the public prior to a rulemaking?
    Mr. Bose. Congressman, it has to be a part of the 
rulemaking because, right now, we are in a deliberative process 
putting that together. But we are happy to walk through the 
NPRM, when that comes out, with you, with your staff, with the 
committee. I know there will be a lot of interest.
    Mr. Johnson of South Dakota. Well, and to be clear, sir, I 
am not asking that you would share with me what you intend to 
introduce as a proposed rule. I understand that that would be 
protected by the deliberative process. But, certainly, safety 
data is something that you could release in advance of an NPRM, 
isn't it?
    Mr. Bose. It depends on what type of safety data you are 
talking about, Congressman. We definitely have readily 
available data on an ongoing basis that we put up on our 
website. But we are happy to--I will follow up with your office 
and go over some specific data that we can share.
    Mr. Johnson of South Dakota. Yes. I think that would be 
instructive. Of course, whatever we do, we want to be evidence-
based and data-driven.
    Do you have a timeline in mind for next steps with regard 
to the NPRM?
    Mr. Bose. The NPRM is under review right now, and it is 
hard to pinpoint an exact time on that.
    Mr. Johnson of South Dakota. So, we don't know whether that 
would be weeks or months or longer?
    Mr. Bose. It is going to depend, Congressman, on the review 
process. I wish I could be more specific. I am sorry I can't 
be.
    Mr. Chapman. Congressman, if I could add something from the 
NTSB perspective.
    Mr. Johnson of South Dakota. Yes.
    Mr. Chapman. We think the very basic step that is being 
taken now in modifying the incident/accident report form, FRA's 
incident/accident report form, will help ensure just better 
gathering of data with respect to crew size and train length. 
We think that that very basic step will help generate 
considerably more useful data than what we currently have.
    Mr. Johnson of South Dakota. Sure. Well, and I would just 
note, Mr. Bose, I understand timelines can be flexible. And I 
am not--I mean, I am not trying to pin you down. But I was a 
regulator in a former life. I certainly as an agency had a role 
in promulgating rules, and I always felt like one of the ways 
that I could help to increase trust and transparency and 
confidence is giving people some sense of when things might 
happen.
    And just even internally, of course, with my team, when I 
was a former regulator, I would say, hey, gang, we want our 
review to be done on X date. We will build in a couple of extra 
weeks of wiggle time, because we know other things come up.
    But the idea that you just don't have any idea when the 
world would get a sense of what you are planning to propose, I 
don't know that that is confidence inspiring. And I know you 
work in an incredibly difficult political and technical 
environment. But I just--I would just note that I think giving 
rough timelines can help to buy up and build confidence in the 
work of the FRA. And I hope you keep that in mind as we move in 
the future.
    With that, Mr. Chairman, thank you. And I yield back.
    Mr. Payne. The gentleman yields back.
    We will now hear from Mr. Auchincloss for 5 minutes.
    [No response.]
    Mr. Payne. OK. Next, we will move to Mr. Carter from 
Louisiana for 5 minutes.
    Mr. Carter of Louisiana. Mr. Chairman, thank you very much.
    My question is for Administrator Bose. Thank you for being 
here. I represent the Second Congressional District in 
Louisiana, which is home to a lot of quaint towns. One 
particularly quaint town is the city of Gretna that has a train 
that runs through that community. There has been talk of 
expanding that train, and I will tell you that the devastation 
of trains that go through small communities is real. It impacts 
commerce, it impacts quality of life, and generally has been 
proven to be a real problem.
    Can you share with me your views on how we can work to 
preserve the security and sanctity of our small towns to 
prevent these expansions of railways that run through small 
cities?
    Mr. Bose. Congressman, for FRA, safety is absolutely our 
priority, so, we want to make sure any trains that operate in 
those communities are doing so in a safe manner.
    In terms of the expansion, I don't have the details that 
you do exactly where and to what level. I can tell you that 
when it comes to the railroads increasing their business and 
increasing their footprint in a community, there are 
opportunities through funding, through mitigation activities 
that we always encourage, not to mention community input and 
community collaboration as a part of the process.
    For the Federal Railroad Administration, we want to make 
sure our field inspectors are there for the community to answer 
any questions that your constituents may have.
    Mr. Carter of Louisiana. And we have been in communication, 
and I thank you for that. And I know that working with the 
Governor's office and Secretary Wilson with the Department of 
Transportation and Development in Louisiana, there has been 
discussion ongoing.
    I just want to flag that for you and ask that maybe we can 
have a further discussion offline on the specifics of the issue 
in the city of Gretna in Louisiana. But more generally across 
the board, this is an issue that plagues many communities. And 
while we understand the importance of commerce, we want to make 
sure it is done in a way that, as you mentioned, is safe, 
secure, and does not disassemble, if you will, the economy and 
community that is so important to all of us.
    Pivoting from that, the workforce shortages, how has that 
increased your ability to maintain the security of rails that 
run through communities?
    Mr. Bose. Congressman, in terms of the staff reductions and 
the workforce that you just mentioned, we in FRA absolutely 
believe that the rail system in general is safe in its 
operations. There is always room for improvement. We can always 
do better. And we want to make sure that when the workforce 
increases, that the training, the certification processes are 
done the right way, and that we want to make sure that the 
infrastructure and the equipment and every other part of the 
railroad is as safe as possible for workers.
    Mr. Carter of Louisiana. And has that been the case, have 
you seen increase, decrease, standstill as a result?
    Mr. Bose. Congressman, I will just tell you, when I came on 
last year, I had seen, the first half of the year especially, 
there were fatalities of workers. And I followed those closely. 
Every day there are reports I get about injuries and the 
quality of the workplace. We want to make sure that there is a 
safe environment for workers.
    So, after that, I sent a letter. I contacted the railroads 
directly, making sure that training and awareness of the 
workers is paramount in their minds. So, we continue to do that 
on a daily basis, Congressman. Whether it is through 
inspections, through audits, through other means. FRA does that 
as a part of our daily work every day.
    Mr. Carter of Louisiana. And while I applaud you for the 
safety of workers--that is critically important, and I stand 
wholeheartedly in support of that--tell me about the security 
of neighborhoods and people and pedestrians.
    Mr. Bose. Yes. Absolutely, Congressman. Another aspect of 
what this administration is focused on is equity. Right? And we 
want to make sure that when it comes to grade crossing safety, 
trespasser safety, the impact that a railroad has on a 
community is a safe one. We have recently done a grade crossing 
summit to highlight safety improvements that we can make. So, 
we will continue to do that. Anytime you need us to engage with 
your communities directly, I am happy to do that. Thank you.
    Mr. Payne. Thank you.
    Mr. Carter of Louisiana. I will definitely take you up on 
that.
    My time has expired. I yield back.
    Mr. Payne. The gentleman yields back.
    We will next have Mrs. Steel from California for 5 minutes.
    Mrs. Steel. Thank you very much, Mr. Chair, and thank you 
very much, Ranking Member.
    And, Administrator Bose, earlier this year organized crime 
groups wreaked havoc on cargo trains in Los Angeles County, 
stealing packages, equipment, and other important products from 
railroad cars. This instance shed light on data collected from 
Union Pacific since December 2020, detailing the 160-percent 
increase in thefts along railroad tracks in Los Angeles County. 
Many of the products stolen included medical equipment, 
electronics, and food products, some of which may currently be 
out of stock due to supply chain shortages.
    It is also important to note that many of these purchases 
are delivered, not just in California, but throughout the 
United States, affecting interstate and international commerce.
    The safety of our freight rail system includes the safety 
of our rail workforce and the security of rail freight. How are 
you working with the Department of Justice to hold the 
perpetrators accountable, and how are you ensuring that this 
instance does not spur up again this holiday season?
    Mr. Bose. Congresswoman, thank you for that question. I 
think you are referring specifically to what happened on Union 
Pacific in the L.A. area over the course of the last year.
    We have talked about workforce shortages. That is not only 
in terms of the operations of the trains, but it is also in 
their law enforcement. Those rights-of-way are privately owned. 
These are privately owned railcars. They have their own police 
force that is to look out for vandals, for other security 
issues.
    We made it clear to Union Pacific, as well as other 
railroads, that security and securement of their equipment is 
very, very important. In the L.A. area, we worked with local 
law enforcement, as well as the Governor's office and 
Department of Homeland Security, FBI, to make sure that those 
instances are not repeated and we can improve on those. If they 
reoccur, we are ready to tackle those with our other agencies 
and law enforcement. They are very much a part of that.
    I am hopeful that Union Pacific is giving the attention the 
issue deserves so that those incidents that happened over the 
course of the last year aren't repeated.
    Mrs. Steel. So, since Federal and State and local law 
enforcement are working together, have these crimes gone down 
or stayed the same or increased?
    Mr. Bose. Congresswoman, I have not seen an increase in 
those activities. If you have information to the contrary, 
please, please feel free to share it.
    Another aspect of this that was really, really important is 
just securing the actual intermodal units that the trains were 
carrying and make sure they are properly locked. So, I am glad 
those precautions have been taken going forward.
    Mrs. Steel. Thank you very much, Administrator Bose.
    Mr. Chairman, I have another question, but I don't think I 
have enough time to get answers. So, what I am going to do is I 
am going to submit in writing regarding that Federal funding 
and grants have been provided to California high-speed rail, 
which has already failed. So, I am going to put this in 
writing.
    And I yield back. Thank you, Mr. Chairman.
    Mr. Bose. That will be fine. Thank you, Congresswoman.
    Mr. Payne. We thank the gentlelady for her consideration.
    And we will next have Ms. Titus from Nevada.
    Ms. Titus. Thank you very much, Mr. Chairman.
    I would just like to ask Mr. Bose about the rule that was 
released yesterday by the FRA on Fatigue Risk Management 
Programs. In the final rule, there was a reference to the FRA 
revising its accident and incident investigation procedures to 
analyze information on the involved railroad's attendance 
policies.
    I wonder if you could expand more on this and the reasons 
you all changed your procedure. And if in the future FRA shows 
that there are attendance policies that contribute to rail 
incidents or accidents, would the FRA consider readdressing the 
issue?
    Mr. Bose. Congresswoman, thanks for that question. The 
fatigue rule, as you mentioned, in addition to that, we are 
also, when it comes to accident investigations, asking 
questions about hours of service, about fatigue. We also did a 
survey where we got over 10,000 responses from conductors and 
engineers, and we are analyzing that as well.
    In terms of rest, that is a very, very important issue, and 
attendance policies are a part of that. It is something that 
FRA has been reviewing and did review across the board at the 
railroad companies.
    We were not able to find a regulatory tool that we have 
available to address those directly. But, again, we are very 
focused to make sure that workers are meeting the hours-of-
service requirements that are in law. We are making sure that 
FRA is analyzing data information related to hours of service 
and fatigue.
    I contacted the railroad companies to make sure that they 
knew that the quality of rest and the quality in the attendance 
policies is very important, that resting away from home is not 
the same as resting at home. And I made that clear to them.
    In terms of the fatigue rule, Congresswoman, the 
consultation with workers is so important and such an important 
aspect of that. We had the Fatigue Risk Reduction Program and 
the System Safety Program come out in the last administration. 
There was a hole in both those regulations that dealt with 
consultation with workers. We knew that that could be improved 
on, and through the fatigue rule, we started addressing that. 
We need to do even more to ensure that that consultation is 
done, because that will lead to a better fatigue plan and 
better safety outcome.
    Ms. Titus. You said you don't have the regulatory tools to 
do something. Are there measures that we could take here in 
this committee to give you those regulatory tools? Would you go 
back over that and see if there is anything we need to do or we 
need to bring forward?
    Mr. Bose. Congresswoman, what I was referring to 
specifically was the attendance policies and hours, and those 
are things that are often worked out through agreements between 
workers and the railroad companies. That is what I was 
referring to.
    What FRA does is we look at hours of service, we look at 
fatigue, and we make sure that we have the information that we 
need. And if there is anything we need to address, we do that 
directly.
    Ms. Titus. Well, it seems that in recent years railroads 
have been acting more like Wall Street, cutting workers, longer 
trains, less concern about people who actually roll the trains. 
And I just want to be sure that they are protected and they 
have as much rest as they need, because if they don't, not only 
does that put them at risk, but it puts whatever they are 
hauling at risk, and it puts everybody in the neighborhood that 
they go through at risk.
    Mr. Bose. Congresswoman, absolutely. We know what has been 
going on in the industry. I can tell you that FRA is doing 
focused inspections, is doing audits. Those were things that in 
the recent past FRA had not put a lot of effort into. I 
reinvigorated those efforts. And we want to make sure that the 
railroads know that we are looking at these issues very, very 
closely in line with what has gone on in the recent past. We 
don't want to be late to this. That is why we are actively 
looking at these things right now and addressing them.
    Ms. Titus. Well, thank you, Mr. Bose. I am glad to hear 
that.
    Thank you, Mr. Chairman. I yield back.
    Mr. Payne. The gentlelady yields back.
    We will now hear from Mr. Perry from Pennsylvania.
    Mr. Perry. Thank you, Mr. Chairman. Thank you, gentlemen, 
for being here.
    Administrator Bose, I want to read from your testimony: 
``The mission of the Federal Railroad Administration is to 
enable the safe,''--and I am just going to underline that--
``reliable, and efficient movement of people and goods for a 
strong America, now and in the future.''
    That is a quote.
    And then another one: ``Safety--including the safety of 
railroad employees, rail passengers, and the communities 
through which railroads operate--is FRA's top priority.''
    Sound about right to you? I mean, sounds like something you 
would say and sounds like the mission that you are on, I would 
think.
    Mr. Bose. Yes, sir.
    Mr. Perry. OK. So, I know that when you talked to Mr. 
Crawford, you didn't want to answer questions regarding a 
lawsuit with BNSF. But I am going to ask you questions about 
Norfolk Southern, so, hopefully you can answer some questions 
regarding automated track inspections.
    Are automated track inspections and manual inspections 
mutually exclusive? If you do one, you can't do the other?
    Mr. Bose. Congressman, the answer to that is no.
    Mr. Perry. Of course not, right? So, you can do both. 
According to the testimony from Norfolk Southern, which 
conclusively showed that expanding the waiver would improve 
safety, would improve safety, and that also said that when the 
request was denied, it described the program as successful. But 
it seems like the key finding was ignored that the systemwide 
implementation of ATGMS would improve rail and worker safety.
    Have you provided any rationale why the waiver was denied?
    Mr. Bose. We did, in the letter denying it.
    Mr. Perry. Can you impart that to us now?
    Mr. Bose. I am sorry?
    Mr. Perry. I mean, can you just generalize and tell us why 
it was denied?
    Mr. Bose. Well, the letter said that the Railroad Safety 
Advisory Committee is looking at automated track inspections in 
general, and that is the way that the FRA is addressing 
automated track inspections.
    Mr. Perry. So, you don't think they have been successful?
    Mr. Bose. Congressman, I am not going to get into--that 
is--there is a petition for reconsideration. I want to be 
respectful----
    Mr. Perry [interrupting]. I am just asking you. I know 
there is a petition, but we are trying to figure out if this 
technology works and if it is not mutually exclusive. So, 
Norfolk Southern, BNSF, any other railroad could implement the 
automated track inspection and also do manual inspections, but 
they are not allowed to do automated track inspection right now 
because it has been denied. Right? The waiver has been denied.
    So, I would like to know why that is, if you don't think, 
if the FRA doesn't think that they have been successful or that 
they enhance or increase safety, because that is what it seems 
like.
    Mr. Bose. Congressman, I think this is a really important 
point. Norfolk Southern could use automated track inspections 
right now. In fact, I think they are using it right now----
    Mr. Perry [interrupting]. But they can't expand it.
    Mr. Bose [continuing]. Without a waiver.
    Mr. Perry. But they can't expand it, right?
    Mr. Bose. They can expand it to other territories 
throughout their network.
    Mr. Perry. So, they haven't been denied a waiver?
    Mr. Bose. Congressman, in order to use automated track 
inspections, they do not need a waiver in the first place.
    Mr. Perry. Well, it seems like--and I said I wasn't going 
to ask, but I am going ask. It seems like on the same day that 
they were denied, BNSF was denied to expand its preexisting 
waiver to new territories. Is that not correct?
    Mr. Bose. Both were denied by the Railroad Safety Board at 
the FRA, yes, sir.
    Mr. Perry. I thought you just said they weren't denied, 
they could expand wherever they wanted to.
    Mr. Bose. Automated track inspections do not require a 
waiver to be in use. They are in use across railroads right 
now.
    Mr. Perry. So, why deny or not deny?
    Mr. Bose. Congressman, factually, they were seeking those 
waivers to eliminate or reduce visual inspections.
    Mr. Perry. And how do you know that?
    Mr. Bose. How do I know that?
    Mr. Perry. Yes.
    Mr. Bose. Because the docket that they submitted, the 
request that they submitted is something that is available to 
read.
    Mr. Perry. OK. And it says that they did it because of 
that.
    Mr. Bose. Among other reasons, yes.
    Mr. Perry. OK. So, they were going to reduce them. But were 
they going to stop them, visual inspections, reduce or stop?
    Mr. Bose. I don't recall exactly what they said, but----
    Mr. Perry [interrupting]. And it is not mutually exclusive. 
So, they can do automated track inspection and visual 
inspections, right?
    Mr. Bose. Congressman, I am not going to get into it 
because, again, there is a petition for reconsideration. There 
is litigation going on. I have tried to answer your questions.
    Mr. Perry. Thank you, Mr. Chairman. I yield.
    Mr. Payne. Thank you.
    And I think it was clear everyone in the room supports ATI 
and no waiver is required to operate ATI.
    The next person up is the gentleman from Massachusetts, Mr. 
Auchincloss, for 5 minutes.
    Mr. Auchincloss. Thank you, Chairman.
    Before I begin, Administrator Bose, would you like to take 
a minute of my time to expound on your answers to my colleague?
    Mr. Payne. We are getting some feedback here.
    [Pause.]
    Mr. Payne. The gentleman can proceed.
    [No response.]
    Mr. Payne. While we are trying to figure out what is going 
on with Mr. Auchincloss, we will hear from Mr. Burchett.
    Mr. Burchett. Thank you, Mr. Chairman. I appreciate that.
    I am the 435th most powerful Member of Congress, so, if 
these questions have been asked before, I apologize. Obviously, 
my party has not accepted my position in leadership as I have. 
So, I appreciate you all.
    We all know that businesses are struggling to find workers. 
And I am wondering why would the agency consider forcing small 
businesses to hire folks that they really don't need?
    And I guess that is to Administrator Bose.
    Mr. Bose. Congressman, I am not sure exactly what you are 
referring to in terms of forcing railroads to hire workers. I 
am not sure if you are talking about the shortages that we have 
heard from the railroads directly in terms of the supply chain 
and the increases that they need or if you are referring to the 
crew size.
    Mr. Burchett. I am referring to the rule that President 
Biden's administration has moved forward to hire personnel or 
operators with more people on a train than a lot of folks feel 
is necessary.
    Mr. Bose. Yes, sir. So, when it comes to that, I will just 
note this: There was a notice of proposed rulemaking back in 
2016, having to do with crew size. At that time, some railroad 
companies had one-person crews, and there was not going to be a 
change to that, if the railroads could provide the rationale 
for continuing that. And also, in terms of the crew size, right 
now, there is a minimum of two people on crews across the board 
at the railroad companies.
    So, there was, in the last notice of proposed rulemaking, 
if it was below two, there was an opportunity to continue that, 
as well as, if there is two, to maintain it. And there was also 
a safety case that went along with those.
    Mr. Burchett. OK. I am also worried, to carry that on, if 
the railroads can't meet some of these requirements, do you 
think it is possible that fewer trains would run and that would 
result in a worsening service and increased supply chain 
bottlenecks?
    Mr. Bose. Congressman, when it comes to operating the 
trains and providing the service, I leave that to the railroads 
to do on their own. They are very successful businesses and 
have been for a long time in this country, and I think they can 
figure that out pretty well.
    But I just want to highlight, again, the Surface 
Transportation Board's April 27th hearing where we did hear 
from customers and communities that experienced a lack of 
service. If there is anything the FRA can do, the 
administration can do to increase the workforce for them, the 
railroads to increase their workers or retain workers, we are 
happy to work with them.
    Mr. Burchett. OK. I just read that some of those mandates 
might carry over in more disruptions.
    Two weeks ago, 24 short lines were awarded CRISI grants. 
And I am wondering, how else is the Federal Railroad 
Administration using the CRISI grants to invest in short line 
upgrades in some of those safety improvements?
    Mr. Bose. Yes, sir. So, when it comes to short lines, FRA 
has a pretty robust program, but CRISI is the primary way that 
we fund the short lines. We also have a Short Line Safety 
Institute where we make sure that there is training and aspects 
of safety that we are communicating with the short lines 
directly. FRA also engages with the short lines throughout the 
year so that we can talk to them about safety and provide 
resources that they need.
    I had an opportunity to go to California in Oakdale, 
California, and visit a short line company called Sierra 
Northern. And they were replacing ties, believe it or not, that 
were over 100 years old, with the CRISI money that we gave 
them. So, we are always looking for more opportunities. We 
know----
    Mr. Burchett [interrupting]. I hope it wasn't those 
concrete ones. I see those behind some property I used to have. 
I see those. They make nice borders for gardens now. They 
didn't last too well as the good old wooden ones, I am afraid.
    Mr. Bose. Yes, sir. They are wood. They are wood.
    Mr. Burchett. Yes, sir. All righty. I am about to run out 
of time. But I am curious about the administration's support of 
funding CRISI at a higher level than its fiscal year 2023 
budget. Fiscal year 2023, the Biden administration requested 
$1.5 billion for the grants, and it was less than $1.6 billion 
appropriated by Congress in fiscal year 2022.
    And I am out of time, if you can just give me a quick one 
on that.
    Mr. Bose. Yes. We are always open to more funding for 
CRISI. The Bipartisan Infrastructure Law has funding for CRISI 
for 5 continuous years, and that is a big deal to know that 
there is going to be a robust program.
    Mr. Burchett. OK. Thank you, Mr. Chairman. I yield back 
none of my time.
    Mr. Payne. The gentleman yields back.
    Now we will have Mr. Stauber from Minnesota for 5 minutes.
    Mr. Stauber. Thank you very much, Mr. Chair.
    My question will be a followup to Representative 
Burchett's. In my home district in northeast Minnesota, we have 
Class I railroads and short lines crisscrossing the entire 
State. They carry the iron ore that makes 80-plus percent of 
America's steel. They carry coal and other commodities and more 
from the west coast and the Plains, through the Port of Duluth.
    They employ hundreds of people and provide for families, 
supporting union jobs. Rail safety is ever present both in 
those communities that have rail lines running through them and 
the families who have parents and loved ones working on these 
lines.
    One such program that is important to rail safety is the 
Consolidated Rail Infrastructure and Safety Improvements grant 
program, which you just talked about. Short line railroads are 
directly eligible for CRISI funds, and they have been 
successful in harnessing these resources since the program was 
created in 2015.
    And 2 weeks ago, the FRA made its latest awards, announcing 
24 short lines would benefit from this program, putting 
investments to work to make their railroads safer by upgrading 
outdated track, bridges, and tunnels. These investments also 
make the network more efficient.
    Can you discuss your continued commitment toward using the 
CRISI program to invest in key safety goals, like allowing 
short line freight rail to upgrade and make important repairs?
    Mr. Bose. Congressman, short lines play such an important 
role in the railroad network that we have, and we want to do 
everything possible to make sure that they are robust and have 
the funding to make the improvements that they need. As you 
mentioned, the CRISI program is such a great tool to do that.
    Mr. Stauber. Thank you very much.
    And can you discuss how CRISI more generally helps 
railroads improve the efficiency of the supply chain?
    Mr. Bose. Yes, absolutely. So, let me point out a couple of 
examples. A lot of bridges don't carry 287 pounds of capacity. 
So, the program can be used to make those improvements. They 
are used to make improvements to track so that the tracks can 
accommodate higher speed trains. And also, in terms of other 
infrastructure improvements, to improve grade crossings or 
eliminate grade crossings, that is another way that the CRISI 
program is used by short line railroads.
    Mr. Stauber. Thank you very much.
    And I will just end with this. I would just encourage you 
and the agency to continue working with railroads that are 
doing improvements across our great land, to make sure that the 
local community and the elected leaders in those areas where 
the improvements are going to be made are part of the 
conversation. And I think that is critically important.
    We know that the railroads help build our country, and we 
are upgrading the infrastructure. But I just want to make it 
clear to you, my recommendation is to make sure that our 
communities, many of them are smaller communities, that when 
there are upgrades, et cetera, that the administration supports 
working with the community, the community leaders and such, and 
have an actual input on the design and be involved in the 
conversation. I think that would be a great help as the 
railroad continues to invest.
    Mr. Bose. Absolutely, Congressman.
    Mr. Stauber. Thank you very much.
    Mr. Chairman, I yield back my 1 minute and 5 seconds.
    Mr. Payne. I appreciate the gentleman's consideration.
    And now we will have Mr. Auchincloss from Massachusetts who 
has joined us.
    Mr. Auchincloss. Chairman, apologies for the audio issues. 
Thanks for your patience.
    Before I begin, Administrator Bose, if you would like, I 
want to grant you a minute just to further expound on your 
answers to my colleague, Mr. Perry. I know you didn't have a 
whole lot of time to explain. But if it would be helpful to 
you, I want to give you that time now.
    Mr. Bose. Thanks, Congressman. I was just trying to express 
that automated track inspection efforts don't require any sort 
of approval, any affirmative waivers for them to continue and 
be utilized on a regular basis. Railroads can use them, are 
using them right now without waivers.
    Mr. Auchincloss. Got it. And now, Administrator, I want to 
talk to you about CRISI. Short line freight rail is critical to 
countless communities and economic sectors, helping industrial 
manufacturing and agricultural customers move their goods to 
market. The short line freight rail industry estimates that 
more than $12 billion in investments are needed to ensure that 
the industry can modernize and meet the needs of our economy.
    The recently passed infrastructure law dramatically 
increases the level of resources available through the 
Consolidated Rail Infrastructure and Safety Improvements grant 
program, the CRISI program.
    Massachusetts, the State I represent, has received nearly 
$35 million in CRISI awards in recent years and another $1.75 
million 2 weeks ago, putting the investments of the 
infrastructure bill to work to make their railroads safer by 
upgrading outdated tracks, bridges, and tunnels. And these 
investments are also making the network more efficient.
    Can you discuss your commitment towards using the CRISI 
program to invest in key safety goals like allowing short line 
freight rail to upgrade and make important repairs?
    Mr. Bose. Congressman, you have that commitment.
    Mr. Auchincloss. How can short line rail also support local 
infrastructure improvements, many of which will use older rails 
to transport construction materials?
    Mr. Bose. We can definitely look for projects where we can 
make those improvements. And we know, especially when it comes 
to short lines, often they don't have the resources to do the 
long-term improvements that are necessary. And we want to make 
sure the program is utilized for that purpose.
    Mr. Auchincloss. And can you also discuss how CRISI helps 
short line railroads improve the efficiency of the supply 
chain?
    Mr. Bose. Yes, absolutely. I was mentioning, often in some 
cases, short line railroad bridges aren't able to carry 287 
pounds of equipment. So, that is one area. Also, often they 
need track upgrades or replace ties, and the CRISI program 
enables, just as examples, to make those improvements. So, 
short lines definitely utilize that program.
    And I also know that the short lines, relatively small 
grants make a huge difference to those short lines, because 
they encompass smaller geographic areas. So, we actually have a 
bigger impact even with the short lines. The funding goes a lot 
further.
    Mr. Auchincloss. Got it.
    Mr. Chapman, final question for you, a basic but open-ended 
one. What is the single most important thing we can do to 
improve the safety of freight rail?
    Mr. Chapman. Well, the emphasis that I expressed in my 
opening statement with respect to train approach warning, I 
think if we took greater advantage of the limitations available 
through PTC, made less use of train approach warning, I think 
that would have the greatest impact, from our perspective, 
certainly with respect to safety of roadway workers.
    Mr. Auchincloss. Mr. Chair, I yield back.
    Mr. Payne. Thank you. The gentleman yields back.
    Now, we will have Mr. Westerman from Arkansas for 5 
minutes.
    Mr. Westerman. Thank you, Mr. Chairman. Thank you to the 
witnesses.
    My first question I want to ask Administrator Bose. And I 
hear that the administration is moving forward with a new rule 
that could require railroads to hire more personnel or to 
operate with more people on a train. It would be the first time 
in nearly the 200-year history of railroading in this country 
that there has been a Federal rule on the number of people 
needed to operate a train. And if it goes forward, I am worried 
about the effects on small businesses and specifically short 
line railroads.
    I have the great opportunity to represent more short line 
railroads in my district than any other congressional district. 
And instead of putting capital where it may be better used, 
like making improvements to track and structures that are 
critical for the safe and efficient movement of goods and 
freight, I am concerned that they will be asked to spend more 
money on unnecessary workforce expansion.
    Doesn't it make better sense to let small business 
railroads invest in their infrastructure, which allows for a 
safer, more efficient rail network, instead of being forced to 
put more people on the payroll?
    Mr. Bose. Congressman, thank you for that question. As you 
know, and I have stated before, we are working on the notice of 
proposed rulemaking for the crew size.
    What I also said earlier, and I will highlight a part of 
it, is that, in 2016, there was a notice of proposed 
rulemaking, and there were some short line railroads identified 
within that that had less than two-person crews: one-person 
crews. And there was a path for them to continue utilizing one-
person crews if they could make the safety case for doing that. 
So, that was in the last notice of proposed rulemaking.
    Any rule that we put forward has to have a small business 
consideration built into it. So, there will be absolutely an 
opportunity for comments for us to receive to hear from the 
short lines and other stakeholders directly when we go forward 
with that.
    Also, as you know, there is also a cost-benefit analysis 
that will have to be a part of that notice of proposed 
rulemaking.
    Mr. Westerman. Thank you. In fiscal year 2022, Congress 
provided CRISI with $1.625 billion in a mix of discretionary 
and mandatory spending. But in the fiscal year 2023 budget 
request, the administration proposed $1.5 billion.
    Is there a reason that the administration is proposing to 
cut CRISI funding? I mean, I am all for cutting costs where 
necessary, but I am hoping you can tell me why they chose that 
program to cut and what would be cut.
    Mr. Bose. Congressman, there are a lot of considerations 
that go into the budget proposal that we put forward. The 
request reflects those tradeoffs. But we know, and I will 
restate this, the CRISI program has a lot of benefits. It has 
given a lot of benefits to short line railroads, and I look 
forward to working with Congress to make sure that that program 
continues in a robust way.
    Mr. Westerman. Yes. With all the need for investment in our 
infrastructure and especially on short line freight rail, it 
seems like it would be wise to fully unleash that potential.
    Mr. Bose. Yes, sir. Yes, sir. I understand. And it is also 
important that we got the money out for fiscal year 2021 that 
you all provided, and we did that just a few weeks ago. So, it 
is absolutely--I hear your point on the importance of the 
program.
    Mr. Westerman. All right. Thank you, Administrator.
    Mr. Chairman, I yield back.
    Mr. Payne. Thank you.
    I would like to thank the witnesses for their time today 
and their testimony. We find it very valuable, and we will 
continue these discussions into the future. Thank you.
    We will now retire this panel and ask the second panel to 
come up.
    [Pause.]
    Mr. Payne. OK. Good afternoon. Next we will hear from panel 
2.
    Before I proceed, I ask unanimous consent to enter into the 
record a statement from the Association of State Railroad 
Safety Managers.
    Without objection, so ordered.
    [The information follows:]

                                 
   Statement from the Association of State Railroad Safety Managers, 
         Submitted for the Record by Hon. Donald M. Payne, Jr.
To: U.S. House Committee on Transportation and Infrastructure.

    The Association of State Rail Safety Managers (ASRSM) would like to 
thank the U.S. House Committee on Transportation and Infrastructure for 
the opportunity to provide a written statement regarding current 
railroad industry practices that are having a negative impact on 
safety. The ASRSM is a Federal Railroad Administration supported state-
based organization comprised of rail safety professionals from thirty-
one member states. The purpose of this organization is to support, 
encourage, develop, and enhance railroad safety, especially through the 
Federal/State Railroad Safety Programs as established and defined by 
the Federal Railroad Safety Act of 1970. A principal motivation for 
forming this Association was to attain greater uniformity among states 
in the conduct of rail regulatory activities and to enable states to 
speak with a collective voice on important rail safety topics.
    There are several railroad practices that are of particular concern 
to the Association. These concerns have been manifested primarily in 
the operations of various Class I railroads, although it is not 
uncommon to find them at the Class II, and Class III levels as well. 
The issue of blocked grade crossings, the operation of very long 
trains, the recent issue of railroads insisting that roadway owners/
municipalities bear the cost of on-going maintenance of crossing 
devices, and the exuberant costs for preliminary engineering agreements 
are four key issues we believe are critical and need to be addressed. 
These concerns are further outlined below.
                           Blocked crossings
    There are over 228,000 public and private highway-railroad grade 
crossing across America. Blocked highway-railroad crossings by standing 
and slow-moving trains are a chronic problem in almost every state. In 
recent years, railroad companies have significantly expanded the use of 
longer trains (sometimes exceeding three miles long) The cumulative 
impacts of blocked highway-railroad crossings are very serious and 
include:
      Significant delays in providing firefighting and 
lifesaving emergency medical care to those in need in areas with 
blocked access.
      Delays in police response to criminal activities with 
blocked access.
      Delays to school buses and parents transporting children 
to and from school.
      Attempts by drivers to ``beat'' the trains at crossings 
they know are routinely blocked--endangering the vehicle occupants and 
train crews.
      Trespassing by pedestrians (including schoolchildren) 
over and under stopped trains, risking serious injury or worse.
      Prolonged traffic delays, impeding commerce and causing 
re-routed traffic to impact local neighborhoods.
      Preventing citizens from accessing their own homes, 
schools, and workplaces, sometimes for hours at a time.

    Many states and municipalities have implemented laws and rules that 
prescribe the period a train can block a crossing for reasons other 
than mechanical issues or emergencies. Unfortunately, courts have 
consistently upheld the railroad's arguments that state laws are 
federally preempted, rendering these local solutions moot. The new FRA 
blocked crossing portal has not shown much effectiveness at this point, 
other than to further illuminate these persisting issues suffered by so 
many communities.
                    Concerns about very long trains
    Today, trains are being built that can reach lengths more than 
15,000 feet. The recent practice of operating very long trains has 
magnified the blocked grade crossing issue especially when a long train 
is stopped within a small town or village cutting off access at 
multiple crossings.
    Some of the trains being assembled are so long, that they do not 
fit within the existing sidings, or inside rail yards. This has 
resulted in railroads often using their main line to couple railcars 
together causing additional problems with blocked roadway access.
    Additionally, the operation of these very long trains presents 
challenges to train crews especially when navigating curves and grades. 
The distribution of loaded and empty cars, as well as the placement of 
distributed power throughout a train present significant challenges in 
train make-up, which if done improperly, can lead to derailments and 
damage to equipment.
    Finally, longer freight trains can negatively impact the timeliness 
of passenger trains. In locations where freight and passenger trains 
operate on the same tracks, faster passenger trains are often forced to 
wait for a freight train to clear because the longer freight train is 
unable to fit in to an existing siding. As a result, passenger trains 
often suffer long delays while waiting for freight trains to clear.
Recent actions by railroads to demand that local applicants pay annual 
 maintenance costs for crossing signal units at highway-railroad grade 
                               crossings.
    Railroads are statutorily required to inspect and maintain all 
signal and railroad crossing devices along their lines. Recently there 
have been attempts by some railroads to pass through on-going 
maintenance costs to local municipalities when new or upgraded devices 
are installed. There have been recent attempts by some railroads to 
assess annual maintenance fees to the local applicant, payable to the 
railroad in perpetuity, and in some cases, under threat of unilateral 
closure. The projects impacted by these actions include crossings which 
are:
      Upgraded with new signal equipment
      Upgraded from a passive crossing to an active one
      Opened where one did not previously exist
      Altered in such a way that the railroad considers the 
crossing project a new crossing

    As a result, many projects which would be done to enhance grade 
crossing safety, are stalling, or being canceled. In certain 
circumstances, project scopes are being revised to eliminate the 
upgrading, replacement, or installation of gates and lights so as not 
to trigger the maintenance fee requirement. In so doing, aging crossing 
equipment will continue to degrade and ultimately malfunction while 
sourcing repair and replacement parts becomes more difficult. This 
barrier to equipment enhancement compromises the safety of the 
traveling public, to include pedestrians, bicyclists, etc. The actions 
by some railroads to assign maintenance costs to local applicants has 
reversed decades-long cost apportionment practices, as codified in many 
state statutes, which placed the maintenance responsibility on the 
railroad.
    As many crossing projects are tied to Federal Highway 
Administration funding via 23 USC Sec. 130, states are beginning to 
have difficulty obligating these appropriated funds in a timely manner. 
The risk of funds lapsing in any given fiscal year has become a real 
impediment to their use. The strict guidelines governing the scoping 
and use of Sec. 130 funds make it impossible to expand their 
application to other safety priorities, further adding to the challenge 
of fund obligation.
 The costs for a preliminary engineering (PE) agreement have increased 
                             dramatically.
    A PE agreement is necessary for railroad employees and/or 
consultants to travel to and survey the location of a potential 
crossing project. The railroad representatives participate in 
diagnostic meetings to plan for the proposed improvement project. The 
PE expense assessed by the railroad is charged to the entity requesting 
the project which is often a public entity (state, municipality, 
county, etc.). The charges being assessed to municipalities for 
preliminary assessments have skyrocketed over the last decade and 
appear to be well over the market value for the service being provided. 
For example, municipalities that have typically paid $10,000 for a PE 
assessment are now being assessed $30,000 to $50,000. Smaller 
communities with limited resources pursuing crossing upgrades and 
improvements, struggle to obtain the funds necessary to execute a PE 
agreement. This often results in delays and sometimes cancellation of 
important grade crossing improvement projects.
                               Conclusion
    As members of the ASRSM, we are confronted with these issues daily. 
Our organization is comprised of railroad professionals located across 
the country from all political persuasions. We bring these issues 
forward to the committee because the rules in place for railroading are 
created by the Federal Government and most typically state rules and 
regulations are preempted. We ask that Congress formulate reasonable 
solutions to these critical safety issues, and work with the 
Administration to set rules that will effectively address these 
problems.
        Respectfully,
             The Association of State Rail Safety Managers.

    Mr. Payne. I would like now to welcome our second panel of 
witnesses: Mr. Roy L. Morrison, director of safety, Brotherhood 
of Maintenance of Way Employes Division, International 
Brotherhood of Teamsters; Don Grissom, assistant general 
president of the Brotherhood of Railway Carmen Division, TCU/
IAM; Mr. Grady Cothen, retired, transportation policy 
consultant; Mr. Nathan Bachman, vice president of sales and 
business development, Loram Technologies, Incorporated; Ms. 
Cindy Sanborn, executive vice president and chief operating 
officer, Norfolk Southern Corporation and chair of the 
Association of American Railroad's Safety and Operations 
Management Committee; and Mr. Jeremy Ferguson, president, Sheet 
Metal, Air, Rail, Transportation-Transportation Division.
    Thank you, all, for joining us today, and I look forward to 
your testimony.
    Without objection, our witnesses' full statements will be 
included in the record. Since your written testimony has been 
made part of the record, the subcommittee requests that you 
limit your oral testimony to 5 minutes.
    Mr. Morrison, you may proceed.

     TESTIMONY OF ROY L. MORRISON III, DIRECTOR OF SAFETY, 
     BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION, 
INTERNATIONAL BROTHERHOOD OF TEAMSTERS; DON GRISSOM, ASSISTANT 
GENERAL PRESIDENT, BROTHERHOOD OF RAILWAY CARMEN DIVISION, TCU/
   IAM; GRADY C. COTHEN, Jr., RETIRED, TRANSPORTATION POLICY 
  CONSULTANT; NATHAN C. BACHMAN, VICE PRESIDENT OF SALES AND 
  BUSINESS DEVELOPMENT, LORAM TECHNOLOGIES, INC.; CYNTHIA M. 
SANBORN, EXECUTIVE VICE PRESIDENT AND CHIEF OPERATING OFFICER, 
NORFOLK SOUTHERN CORPORATION, AND CHAIR, SAFETY AND OPERATIONS 
 MANAGEMENT COMMITTEE, ASSOCIATION OF AMERICAN RAILROADS; AND 
      JEREMY FERGUSON, PRESIDENT, SHEET METAL, AIR, RAIL, 
             TRANSPORTATION-TRANSPORTATION DIVISION

    Mr. Morrison. Thank you, Chairman Payne, Ranking Member 
Crawford, and members of the subcommittee. I am Roy Morrison, 
director of safety for the Brotherhood of Maintenance of Way 
Employes Division of the Teamsters. BMWED represents more than 
30,000 railroad workers who do inspection, construction, 
maintenance, and repair of tracks, roadbeds, bridges, 
structures, and facilities on railroads. BMWED members have 
raised these issues as the most pressing.
    Precision Scheduled Railroading has produced historical 
record profits and historically low staffing levels in the 
railroad industry. Before COVID, employment on Class I's was 
cut by over 30,000, and during COVID, employment has been cut 
by thousands more. Now, even as traffic has returned, staffing 
levels have not. Maintenance-of-way employees are working over 
80 to 100 hours a week doing track maintenance in multiple 
territories for months on end.
    While railroads refuse to fill open positions and continue 
furloughs, prior to PSR workforce cuts, BMWED commissioned an 
occupational safety and health research study by highly 
credentialed medical and academic researchers with expertise on 
workplace safety and health. The full study is available on 
BMWED's website. But the key finding of our study is that our 
members face significantly higher levels of disease and injury 
compared to workers in other industries. Severe understaffing 
is only making these issues worse.
    Additional maintenance-of-way forces and more stable work 
schedules would provide some relief. With my written testimony, 
I have shared letters from our members about current conditions 
where they are pressed to cut corners, defer maintenance, skip 
steps, not to work the standards they were trained to and met 
prior to PSR. We ask the committee to continue to stay on top 
of the issue and take further actions to mitigate damages 
caused by PSR.
    Starting in 2018, all the Class I railroads began test 
programs referred to as automated track inspection, but it is 
not new. ATI is just autonomous track geometry measurement 
systems, which have been in use since the 1970s and were never 
designed for FRA-mandated track inspections. But waivers 
submitted to FRA showed the railroads want to cut human track 
inspections by up to 80 percent even though there are defects 
that machines cannot detect.
    What ATI can do is identify track geometry defects, which 
make up about 26 percent of the total defects FRA requires to 
be inspected for. Taking human track inspectors off the tracks 
leave 75 percent of track defects unmonitored. Railroads can 
add all the technology they want without safety waivers. The 
track geometry systems are already used on Amtrak at the 
frequencies the freight railroads have tested. Amtrak doesn't 
need safety waivers to do this. No railroad does.
    It is vital to the safety of rail employees and the public 
that manual in-person inspection frequencies remain at the 
current levels mandated by Federal regulation. Recently, the 
AAR has complained the FRA is not rubberstamping requests to 
reduce human inspections. The AAR is wrong. FRA should 
scrutinize these waiver requests and Congress should make it 
clear that the FRA has your support.
    I wanted to note, BMWED greatly appreciates Administrator 
Bose. My testimony is not meant to be critical of him or the 
work he is doing at FRA. We are just highlighting several 
issues that have gone unresolved across multiple 
administrations. BMWED thanks the NTSB for including roadway 
worker safety on its agency's 2021-2022 Most Wanted List.
    We also ask Congress to elevate 49 CFR 214.329 from 
regulation to statute. The regulation requires provisions of 
warning equipment such as whistles, air horns, white disks, red 
flags, lanterns, or fuses to provide warning of oncoming 
trains, but the Class I's just make roadway workers yell over 
the noise, and FRA has ignored our request for stricter 
enforcement.
    The punitive damage standard for retaliation against 
whistleblowers is the exact same as the standard to disqualify 
railroad managers, but our efforts to get FRA to follow through 
have been ignored for years. Failing to penalize managers 
encourages retaliatory conduct. We just ask existing 
regulations be enforced against bad actors.
    Excepted track regulations permit railroads to designate 
track as exempt from compliance with minimum safety 
requirements. It was meant to provide short-term regulatory 
relief 40 years ago, but railroads use it to cut costs and 
avoid maintenance.
    A 2020 NTSB report said of a worker fatality in Arlington, 
Texas, quote, ``contributing to the accident was the 
designation of the accident track as excepted track under 
current FRA track safety standards, which allowed inadequate 
track conditions to exist on track used regularly'' end quote. 
Congress should sunset ``excepted track.''
    I would like to thank you for your opportunity to raise 
these concerns. Thank you.
    [Mr. Morrison's prepared statement follows:]

                                 
    Prepared Statement of Roy L. Morrison III, Director of Safety, 
  Brotherhood of Maintenance of Way Employes Division, International 
                        Brotherhood of Teamsters
    Thank you, Chairman Payne, Ranking Member Crawford and members of 
the Subcommittee. I am Roy L Morrison III--Director of Safety for the 
Brotherhood of Maintenance of Way Employes Division of the 
International Brotherhood of Teamsters (BMWED-IBT). My union represents 
more than 30,000 railroad workers who perform inspection, construction, 
maintenance, repair, and dismantling of tracks, roadbeds, bridges, 
structures, and facilities on railroads throughout the United States, 
including the major Class I freight railroads as well as many of the 
largest commuter lines in the country. BMWED's membership is comprised 
of highly skilled workers who are proud to perform their trade that is 
vital to the American rail network and its reliability to the US supply 
chain.
    As Director of Safety, I am responsible for leading the union's 
Safety Department, monitoring and addressing health and safety issues 
for BMWED across the country, and serving as the union's primary 
staffer engaging with Congress and agencies on legislative and 
regulatory issues affecting the health and safety of our members. Prior 
to my current role, I was an Internal Organizer on BMWED's 
Communication Action Team (CAT) where I interacted with our members 
from virtually every railroad across America to stay current on the 
issues they experienced on the job. I started my career as a 
Maintenance of Way (MOW) employee for 19 years at the Union Pacific 
Railroad doing construction, maintenance and repair to the tracks, 
structures, and bridges throughout the 14 states in the UP northern 
system.
    Thank you for giving the BMWED the opportunity to share with you 
the safety concerns we see through the eyes of our Members in the rail 
industry and the detrimental impact these issues may have on the 
American people. Specifically, BMWED is concerned that: (1) current 
railroad staffing levels are dangerously low; (2) automated track 
inspection technology is an unacceptable substitute for human track 
inspections; (3) railroads are providing insufficient protection for 
roadway workers from oncoming trains when they are working on or near 
active rail lines; (4) railroad managers must be disqualified following 
safety sensitive violations; and (5) the ``excepted track'' loophole 
that allows railroads to run over substandard tracks must be closed.
               (1) Railroads Are Dangerously Understaffed
    In 2015, many of the Class I railroads began implementing the 
Precision Scheduled Railroading (PSR) business model that has turned 
the industry upside down. The focus of PSR is to reduce a railroad's 
operating ratio, which is the proportion of operating expenses to 
operating income. While PSR's across-the-board and ruthless cost-
cutting has produced historically low operating ratios and historical 
record profits for the railroads, it also has produced historically low 
staffing levels in the industry.
    Between 2016 and 2020, before COVID, railroad employment on the 
four largest Class I railroads was reduced by over 30,000. In 2016 
Class I employment was at 153,000, by 2020 it was at 120,000. The 
reductions in forces have continued and by December of 2021, Class I 
employment was at 114,499. Even as traffic has returned, the staffing 
levels have not. By the end of 2021, carloadings were only 2.6% below 
carloadings at the end of 2019; revenue had returned to the levels at 
the end of 2019. By December of 2021, a workforce 81% of the size of 
the 2019 workforce was responsible for moving 97.4% of 2019 
carloadings.
    Along with these staffing cuts, railroads have curtailed 
inspection, maintenance and repair work on their infrastructure and 
equipment, and required a reduced workforce to handle the 
responsibilities once handled by a significantly larger workforce. The 
railroads have made it difficult to impossible for their employees to 
properly perform their tasks that are essential to adequate rail 
service. There's simply not enough time to perform the tasks and our 
members are spread thin covering impossibly expanded work territories.
    MOW employees are working over 100 hours a week to perform track 
maintenance on multiple territories for months on end. Roadway workers, 
in charge of the safety of the men and women working on track, are 
working weeks without a day off while railroads refuse to fill 
positions left open due to retirements, and have continued to furlough 
MOW workers.
    Prior to the massive workforce cuts caused as a direct result of 
PSR the BMWED embarked on an Occupational Safety and Health research 
project. A Summary Report was authored by a team of highly credentialed 
medical and academic researchers with expertise in workplace safety and 
health, performing studies both nationally and internationally. The 
full research project includes three separate areas of study: (1) 
epidemiology, (2) ergonomic and physical hazards, and (3) social and 
economic impacts.
    This study found significant elevated levels of disease and injury 
compared to workers in other industries, accompanied by substantial 
negative economic and social impacts.\1\ The increased mental and 
physical toll from severe understanding placed on MOW workers only 
exacerbate these issues. And many of these issues could be mitigated by 
the railroads hiring additional MOW forces and providing more stable 
work schedules.
---------------------------------------------------------------------------
    \1\ The full summary report is available at https://www.bmwe.org/
cms/file/08232018_145843_HSsurveyResults.pdf.
---------------------------------------------------------------------------
    Cuts to personnel mean the loss of industrial and institutional 
knowledge, both of which are critical to the performance of railroading 
work and ultimately, the performance of the American railroad system. 
Railroading is a highly skilled trade and it takes years to master. 
Railroad employers working crews so short staffed makes on the job 
training all but impossible. One of the profound impacts we have seen 
regarding training of new MOW forces is when seasoned employees retire, 
they take a knowledge trust with them without any opportunity to train 
the new work force.
    In recent years we have seen an unprecedented number of MOW 
employees retire early or quit mid-career. Until recently it was almost 
unheard of for Maintenance of Way Employees to quit after acquiring a 
number of years of seniority because the jobs were always considered 
good jobs with good pay and good benefits. But the jobs have been 
degraded by the railroads with respect to working conditions and by 
pressure to work faster with less coworkers and resources often over 
larger service territories, cut corners and ignore or defer repairs. In 
a statement submitted to the Surface Transportation Board (STB) for its 
multi-day hearing on Urgent Issues in Freight Rail Service (Ex Parte 
No. 770), BMWED submitted copies of letters and statements from MOW 
employees describing how the jobs have been degraded and working 
conditions have deteriorated since the implementation of PSR. I am 
including copies of these letters as Exhibit A accompanying my 
testimony so that the Committee can hear directly from our members 
about how they can't continue to perform the work in good conscience 
under current conditions where they are pressured to cut corners/defer 
maintenance/skip steps/not work to the standards they were trained to 
and met through their careers until more recent years with the adoption 
of PSR.
    Chairman Payne, BMWED thanks you and Chairman DeFazio for 
requesting that the U.S. Government Accountability Office (GAO) examine 
the impacts that the implementation of PSR by Class I railroads is 
having on workers and safety.\2\ We also thank you for holding hearings 
in March \3\ and May \4\ of this year where rail labor and the Chairman 
of the STB have been able to testify about PSR. Staffing levels must be 
restored and the policies designed to ruthlessly cut corners that are 
driving good people from the industry must be ended. We ask that the 
Committee continue to stay on top of this issue and take further action 
to mitigate the damage caused by this cost-cutting value extraction 
business model called ``PSR''.
---------------------------------------------------------------------------
    \2\ https://transportation.house.gov/news/press-releases/chairs-
defazio-and-payne-jr-request-gao-study-on-the-impacts-of-precision-
scheduled-railroading-on-workers-safety-and-shippers.
    \3\ https://transportation.house.gov/news/press-releases/chairs-
defazio-payne-jr-statements-from-hearing-to-discuss-the-surface-
transportation-board-reauthorizations-role-in-improving-rail-service-
in-the-us.
    \4\ https://transportation.house.gov/news/press-releases/chairs-
defazio-payne-jr-statements-from-hearing-on-the-surface-transportation-
boards-role-in-resolving-freight-rail-conflicts.
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 (2) Automated Track Inspection Is Not a Substitute for Manual-Visual 
              Inspection Done by Trained Track Inspectors
    Starting in 2018 all of the Class I railroads embarked on various 
test programs they refer to as Automated Track Inspection systems 
(ATI). In testimony before this Committee last year, the President and 
CEO of the Association of American Railroads (AAR) complained that the 
Federal Railroad Administration (FRA) is not automatically approving 
waivers of track inspection safety rules that set the required 
frequency of human track inspections. That's wrong. The FRA is 
absolutely right to scrutinize these waiver requests. And Congress 
should make it clear that FRA has your support.
    Although ATI sounds new and ``cutting edge'' the fact is that all 
the tests approved by FRA exclusively rely on Autonomous Track Geometry 
Measurement Systems (ATGMS). That just means the railroads are using 
track geometry systems which have been in use on the railroads since 
the 1970's. These track geometry systems were never designed to 
complete FRA mandated track inspections. What those track geometry 
systems can do is identify track geometry defects--which make up about 
26% of the total defects that FRA requires to be inspected. A full list 
of the defects is available at 49 CFR Sec. 213 sub part B-E.
    Railroads are trying to replace human visual track inspectors who 
have the ability to identify 100% of these defects (as well as a number 
of non-regulatory defects) with a technology that only has the ability 
to identify approximately 26% of them. Taking human track inspectors 
off the tracks leaves almost 75% of track defects unmonitored and puts 
us all at risk. Additionally, human track inspectors are required to 
make ``immediate remediation'' of the defects they find on--which help 
keep the trains moving with less disruption. The machines cannot do 
that.
    Rail labor supports the expanded use of these track geometry 
systems to assist experienced human track inspection professionals, but 
the waivers submitted to FRA indicate that the railroads want to cut 
human track inspections by up to 80% below current levels while sorting 
out whether the new technology actually works for defects it does 
check, and even though there are defects the machines cannot detect. 
Claims that the FRA or rail labor is preventing greater deployment of 
these machines is simply false.
    Railroads can add all the new technology they want without FRA 
safety waivers. They could run the systems every day if they chose to. 
On Amtrak's class 6-8 tracks, track geometry systems are already used 
at the same frequencies the railroads want without FRA safety waivers. 
But Amtrak is adhering to the existing required schedule for human 
track inspections. Taking human track inspectors off the track and 
replacing them with track geometry systems that are not even designed 
to evaluate all the defects assessed by inspectors puts lives at risk.
    It is vital to the safety of rail employees and the public that 
manual in-person inspection frequencies remain at their current 
mandated levels by the federal government. And Congress must not let 
the railroads get away with trying to bully FRA into rubber stamping 
safety waivers to get around the established safety minimum human 
visual inspections frequencies.
                     (3) Roadway Worker Protections
    BMWED would like to commend the National Transportation Safety 
Board (NTSB) for including recommendations to improve protections for 
roadway worker safety on the agency's 2021-2022 ``Most Wanted List'' of 
recommendations to save lives.\5\
---------------------------------------------------------------------------
    \5\ https://www.ntsb.gov/Advocacy/mwl/Pages/mwl-21-22/mwl-rph-
02.aspx.
---------------------------------------------------------------------------
    An additional measure to protect BMWED's roadway worker members 
would be to simply enforce existing FRA regulations for safety 
equipment to provide warnings of oncoming trains. Because FRA has had 
years to enforce this minimum standard for roadway worker safety and 
failed to do so, Congress should elevate this requirement from 
regulation to statute.
    Railroad watchmen/lookouts for roadway workers protect their co-
workers from oncoming trains when they are working on or near active 
rail lines. Current regulations (49 CFR Sec. 214.329) require provision 
of warning equipment to watchmen/lookouts such as whistles, air horns, 
white disks, red flags, lanterns, or fuses. The equipment required by 
this regulation is clearly defined and is essential to roadway worker 
protection for employees working on or near active rail lines, but 
railroads frequently fail to provide it. In fact, BMWED investigated 
practices currently in place on all the Class 1 Railroad properties and 
discovered that only Amtrak is currently in compliance with the 
equipment regulations for FRA train approach warnings provided by 
watchmen/ lookouts.
    Still, FRA has not enforced the requirement. Instead, the freight 
railroads encourage use of ``verbal'' warnings (i.e., yelling), rather 
than use of the equipment mandated by the regulation. This is despite 
the continuing occurrence of roadway worker fatalities where unequipped 
watchman/lookouts were a primary or contributing factor (La Mirada, CA 
5/7/08, Sunshine, AZ 1/23/2009, Minneapolis, MN 5/25/15, Edgemont, SD 
1/17/17, and Estill, SC 11/30/18). Just getting the proper warning 
equipment is a simple solution that will save lives.
    Again, given FRA's failure to enforce this minimum standard for 
roadway worker safety, BMWED asks Congress to elevate this requirement 
from regulation to statute.
 (4) Railroad Managers Must Be Disqualified Following Safety Sensitive 
                               Violations
    For years, BMWED has been raising the issue that FRA must take 
action to disqualify railroad managers who have been found by a federal 
court or administrative body to have willfully and intentionally 
retaliated against a railroad employee whistleblower for reporting 
safety issues. BMWED's efforts to get FRA to enforce existing 
regulations have been ignored.
    In 2012, the Occupational Safety and Health Administration (OSHA) 
issued a Memorandum of Agreement (MOA) to address non-enforcement of 
FRA's regulations contained in 49 CFR Part II, Sec.  209.303 and Sec.  
225.33.\6\ In 2016, BMWED submitted a FOIA request to FRA with a list 
of ten whistleblower protection (49 USC Sec. 20109) cases in which 
OSHA, Administrative Law Judges, DOL's Administrative Review Board, 
and/or federal courts held that railroads, whose managers willfully and 
intentionally retaliated against their workers, were punished by 
imposition of punitive damages.\7\ The list from FRA identified each 
offending railroad manager and summarized the details of the offensive 
acts and intentionality of those acts. Even though the Sec. 20109 
findings in all ten cases fully satisfied the FRA's presumption of 
guilt sustaining manager disqualification under 49 CFR Sec. 209.329(a), 
FRA never initiated and completed any proceedings to establish 
potential violation of the provisions of Sec. 209.303 and/or Internal 
Control Plan (ICP) requirements in any of these ten cases (or any 
others).\8\ The FRA continued its policy of not enforcing these 
regulations after the information from the FOIA request was revealed.
---------------------------------------------------------------------------
    \6\ Memorandum of Agreement Between the Federal Railroad 
Administration U.S. Department of Transportation and the Occupational 
Safety and Health Administration U.S. Department of Labor on July 16, 
2012.
    \7\ The FRSA's Sec. 20109 punitive damage standard is virtually 
identical to FRA's standard for disqualification of railroad managers 
for violation of safety-sensitive regulations. Reference to Sec. 20109 
punitive damage findings provide a compass course of clarity for FRA 
enforcement of Sec. 209.303.
    \8\ As in earlier years, the FRA's Annual Enforcement Reports for 
FY 2019 and 2020 reveal no rail managers were disqualified or subjected 
to a hearing. FRA's public databases do not appear to provide 
information concerning violations of ICPs for retaliatory management 
behavior.
---------------------------------------------------------------------------
    BMWED has raised these issues with FRA multiple times--including in 
2018 and 2021. Failing to properly penalize these managers encourages 
retaliatory conduct. It leads to a culture of impunity that makes the 
railroads less safe. All that is required to address this is for FRA to 
simply enforce existing regulations to disqualify these railroad 
managers who have been found to have willfully and intentionally 
retaliated against a railroad employee whistleblower for reporting 
safety issues.
 (5) The ``Excepted Track'' Loophole That Allows Railroads To Run Over 
                   Substandard Tracks Must Be Closed
    Excepted track regulation permits railroads to designate track as 
effectively exempt from compliance with minimum safety requirements for 
roadbed, track geometry and track structure. This was meant to be a 
short-term solution to help railroads that were suffering 40 years ago. 
There is no excuse for its continued existence.
    The ``excepted track'' regulatory loophole was added to FRA 
regulations in 1982 to provide regulatory relief following a series of 
railroad industry bankruptcies in the 1970s. When adopted, FRA believed 
that the designated tracks would be located in yards or otherwise on 
comparatively level terrain in areas where the likelihood was remote 
that a derailment would endanger a train crew or the general public. 
Further, it was anticipated that the Excepted Track rules would be 
applied for limited periods of operation over track maintained at less 
than the established minimum safety standards, scheduled for 
abandonment or later improvement. But railroads have applied the 
Excepted Track regulation far more extensively.
    In 1997, some minor changes were added to 49 CFR Sec.  213.4. Some 
of the additions were an attempt to close loopholes in the regulations, 
but the entire concept of excepted track is an unacceptable safety 
loophole. Even after the 1997 changes, current rules are used by rail 
carriers to designate track as excepted in order to avoid track 
maintenance and encourage tolerance of dangerous track conditions, even 
on trackage producing revenue adequate to support track maintenance.
    As a recent example of the severity of the issue, in a September 
2020 Railroad Accident Brief issued by the NTSB following a 2017 
derailment in Arlington, Texas that resulted in a railroad worker 
fatality, the NTSB wrote ``[b]ecause of the excepted track designation, 
conditions were present at the POD [point of derailment] that otherwise 
would not be permitted if the track was designated as Class 1 or 
higher'' and ``[c]ontributing to the accident was the designation of 
the accident track as excepted track under the current FRA Track Safety 
Standards, which allowed inadequate track conditions to exist on track 
used regularly.'' \9\
---------------------------------------------------------------------------
    \9\ https://www.ntsb.gov/investigations/AccidentReports/Reports/
RAB2002.pdf.
---------------------------------------------------------------------------
    There is no excuse for why a short-term solution from 40 years ago 
that was designed to help railroads that were dealing with a series of 
bankruptcies should continue to exist. The ``excepted track'' loophole 
should be sunset. Carriers should only be allowed to designate sections 
of track as ``Excepted'' for a limited period of time (no more than 5 
years). After expiration of such time, track should be brought into 
compliance with FRA Class I track standards.
    Again, on behalf of the more than 30,000 members of BMWED, thank 
you for the opportunity to raise these concerns about health and safety 
issues in the railroad industry today.

                                                          Exhibit A
    [Exhibit A is retained in committee files and is available online 
at: https://docs.house.gov/meetings/PW/PW14/20220614/114882/HHRG-117-
PW14-Wstate-MorrisonR-20220614-SD001.pdf ]

    Mr. Payne. Thank you.
    Next we will have Mr. Grissom for 5 minutes.
    Mr. Grissom. Chairman Payne, Chairman DeFazio, Ranking 
Member Crawford, and members of the subcommittee, thank you for 
the opportunity to testify today on the important issue of 
freight rail safety. My name is Don Grissom, and I am a 41-year 
railroader currently serving as the assistant general president 
of the Brotherhood of Railway Carmen, a division of the 
Transportation Communications Union, or TCU/IAM.
    Our members inspect, maintain, and repair railcars on our 
Nation's railways. I am here today to speak about the 
difficulty of the carman craft and how recent changes to the 
railroad business model has increased pressure from management 
and have created a disaster waiting to happen.
    First, let me emphasize that these carmen jobs are skilled 
positions. Upon hiring, a carman apprentice spends 732 working 
days, six different 122-day phases to become a journeyman. 
During this time, a carman becomes highly skilled at inspecting 
and repairing railcars.
    And, while freight cars may appear simple, the mechanics of 
a freight car is quite complex. It includes airbrake systems, 
brake assemblies, wheels, draft gears, yokes, couplers, 
handholds, and other safety appliances, all of which is 
required to be in working order per Federal regulation for a 
train to operate safely.
    Like other crafts, carmen have been cut to the bone in the 
PSR era. We have lost anywhere from 15 to 30 percent of our 
craft, depending on the railroad. And, since PSR, it amounts to 
doing less with less or moving fewer carloads with fewer 
employees. And the effect on the carmen is one of the 
consistent and sustainable pressure on employees, pressure not 
to inspect or repair railcars, pressure to turn a blind eye to 
AAR and FRA defects, pressure to work so much forced overtime 
that your body becomes dangerously fatigued. This is the life 
of a carman in the PSR era. It is the only career I am aware of 
where they train you to do a job and they fire you when you do 
it.
    Please remember, one defective railcar can derail an entire 
train. Since each car has up to 90 inspection points per car 
per side, or 180 in total, carmen were allowed around 3 minutes 
per car on inspection. That is until the PSR era. Today, in 
most locations, on all the Class I's, carmen only allowed 1 
minute for inspection, and I provided evidence in my written 
statement. As a result, cars often go uninspected. Even if they 
are found defective, if the car will still roll down the track, 
management tells them to send it out regardless of whether the 
brake system or other critical components are in working order.
    All of this is due to the pressure that applies to the 
local management and workers to do whatever it takes to get the 
train out. In August of 2021, the FRA performed a safety audit 
on the UP. Unfortunately, we heard reports that local 
management was given a heads-up so they could sweep all the 
defects under the rug, and the FRA still found defective cars. 
We also encourage the FRA to pay special attention to yards 
where carmen have been fully removed from the property. A list 
of those yards is included in my written statement.
    Finally, some attention has been paid to railroad workers 
on fatigue issues in the industry, but not enough. As noted 
today, carmen are being forced to work overtime consistently. 
Many reports of forced overtime include 16-hour shifts, 5 to 6 
days in a row. Many of our members sleep in their cars between 
the shift so they can get an extra hour or 2 hours of rest 
instead of wasting time commuting home and back. This is not a 
healthy environment.
    A wise colleague of mine said to me: The railroads are 
burning the candle at both ends. They are burning their 
customers on one and burning out their employees on the other. 
Thank you for this opportunity to testify.
    [Mr. Grissom's prepared statement follows:]

                                 
    Prepared Statement of Don Grissom, Assistant General President, 
            Brotherhood of Railway Carmen Division, TCU/IAM
    Chairman Payne, Chairman DeFazio, Ranking Member Crawford, and 
Members of the Subcommittee, thank you for the opportunity to testify 
today on the important issue of Freight Rail Safety.
    My name is Don Grissom, and I currently serve as Assistant General 
President of the Brotherhood of Railway Carmen, a division of the 
Transportation Communications Union, or TCU/IAM.
    The Carmen Division represents employees on the railroads that 
inspect, maintain, and repair rail cars, all across the country, at 
every Class 1 railroad, Amtrak, commuter railroads, and some short 
lines.
    I have 41 years of railroad experience, having begun my career in 
1981 on the C&O Railroad in Grand Rapids, MI, and later at CSX out of 
Richmond, VA. I have attended NTSB classes in Northern Virginia, and 
have participated in derailment and rail fatality accident 
investigations. Since 2011, I have served by appointment of the 
Secretary of Transportation to the Rail Safety Advisory Committee, or 
RSAC.
    I'm here today to speak about the difficulties of the Carman craft 
and how recent changes to the railroad business model and increased 
pressures from management have created a ticking time bomb on our 
nation's rails.
    Rail cars are both simple and complex. Their simplicity and 
uniformity in design allows cars to be interchanged universally between 
railroads, aiding in the free flow of freight commerce across America. 
That said, the mechanics of freight cars are complex, and include 
airbrake systems, brake assemblies, wheels, draft gears, yokes, 
couplers, handholds and other safety appliances, as well as many other 
components that are all required to be in working order--per federal 
regulations--for a train to operate safely.
    Upon hiring, a Carman Apprentice spends 732 working days (6 
different 122-day phases) to become a Journeyman. During this time, a 
Carman becomes highly skilled at inspecting and repairing rail cars. 
Importantly, Carmen acquire many skillsets on the job that can be 
utilized outside the industry, such as metal-working, welding, and 
fabrication.
                                PSR Era
    Like other crafts, Carmen have been cut to the bone in the PSR era. 
Depending on the carrier, we've lost anywhere from 15-30% of our craft. 
This alone wouldn't necessarily impact safety if rail car loads had 
been cut by the similar ratios, but that isn't the case. Rail traffic 
has largely stayed the same or declined only slightly. And, as many in 
the rail industry say--at least those outside of Class 1 C-Suites--PSR 
amounts to doing ``less with less''--or moving fewer car loads with 
drastically fewer employees.
    The net effect on Carmen is one of constant and sustained pressure 
on employees. Pressure not to inspect or repair rail cars. Pressure to 
turn a blind eye to AAR and FRA defects. Pressure to work so much 
forced overtime that your body becomes dangerously fatigued.
    All of this pressure is dictated by corporate leadership and 
executed by regional or local management. Even when local managers know 
what they're doing to their employees is wrong or unsafe (since they 
came off the crafts themselves), they're forced to make our members' 
lives miserable under penalty of their own termination.
    That is the life of a Carman in the PSR era. It's the only career 
I'm aware of where they train you to do a job, then fire you for doing 
it.
                            1 Minute Per Car
    As mentioned above, a freight rail car--while seemingly simple--is 
a complex piece of equipment. And since one defective car can derail an 
entire train, it's important to make sure every FRA-required component 
has been inspected to be in working order. Each rail car has up to 90 
inspection points, per car, per side (up to 180 in total). That's why, 
for most of my career, Carmen were permitted around 3 minutes per car 
on predeparture inspections.
    That is, until the PSR era.
    Today, in most locations, on all the Class 1s, Carmen are only 
allowed 1 minute for predeparture inspections. Carmen used to get 
underneath cars to perform physical touch inspections of components, 
but now they only get a brief visual inspection. And it's not just our 
craft either. Machinists--those that inspect and maintain locomotives--
have been given similar time reductions as well, not to mention the 
operating crews' strict time constraints, as other unions can attest.
    A 12-year Carman on Union Pacific recently detailed the issue to 
me: ``On a 150 car train, we're only allowed 2.5 hours maximum to 
perform inspections. However, when the FRA is on the property, that 
rule changes to 4 hours and they give us four Carmen to do it. But as 
soon as the FRA leaves, it's back to business as usual.''
    Why do this? Simple: profits.
    At the yard this Union Pacific Carman hails from they had 74 Carmen 
on duty in 2018. Now, they have 24. Fewer people not only costs the 
railroads less, but the implied and direct pressure on the remaining 
Carmen--and all rank-and-file railroaders--is that if you don't do the 
job as instructed, you're gone.
    I have attached written proof of the one-minute per car policy 
mandated by the railroads today, including:
      A memo to Car Foremen at Union Pacific's Proviso Yard in 
Chicago, IL.
      A time claim at CSX where they first admitted their 
policy in writing.
      Safety metrics from Norfolk Southern showing ``Man 
Minutes Per Car'' (MMPC), allowing 1.1 minutes per car on inbound 
trains, and 1.7 minutes per car on outbound trains.
                       Pressure NOT to Shop Cars
    As a result, cars often go uninspected. And even if they are 
inspected, if the car will still roll down the track, they send it out, 
regardless of whether brake systems or other critical components are 
defective.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

 Screenshot from pre-PSR CSX Carman Training Video, which specifically 
  emphasizes that all rail cars must have operational brakes. Source: 
 ``CSX Train Air Brake Test'', SafeRailroading Youtube Channel, April 
                 30, 2013. https://youtu.be/3lSOh-ES-o8

    All of this is due to the pressures applied to local management and 
workers to do whatever it takes to get the train out the door. Terminal 
dwell is a key metric by which C-Suite executives are scrutinizing 
managers, so any increase in dwell time places their jobs at risk, 
which forces them to work our members to the bone.
    At one CSX shop, the railroad utilizes a ``traffic light'' system 
to alert Carmen (and others) as to how much work the repair shop has 
backing up. Green means ``go ahead and send Bad Orders to the shop,'' 
Yellow means ``We're getting full in the shop,'' and Red means ``Do NOT 
send any more Bad Orders to the Shop.''


 CSX ``traffic light'' system used to pressure Carmen NOT to find bad 
                    order (aka defective) rail cars

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

   After the FRA issued concerns about the traffic light system, CSX 
 simply moved the system to a virtual database. The pressures to local 
               managers and shop craft employees remains.

    While CSX maintains that it's simply a visual tracking system for 
repair work, in practice the system is used to pressure and intimidate 
employees NOT to do their job, which is to inspect and ``cut out'' 
defective rail cars. For obvious reasons, this system is inherently 
problematic as it runs counter to safety.
    Unfortunately, this system also exists virtually at every yard, and 
metrics are specifically focused on the amounts of Bad Orders as well 
as dwell times.
                     UP Safety Audit--August, 2021
    From August 1st through August 14th, 2021, the FRA audited a few 
Union Pacific rail yards. According to the report, the FRA only saw a 
defect ratio of 3.3% of rail cars. Let me tell you why that's 
inaccurate or incomplete.
    First, our members report that the FRA Safety Management Team (SMT) 
6, which covers UP and KCS, communicated to Union Pacific ahead of time 
what yards they would be inspecting, allowing the company to prepare 
and get equipment up to code while also escorting inspectors around 
pre-selected sections of the yard--and they still found defects. 
Furthermore, our members reported that the FRA often wouldn't go to the 
main yards, but rather only the side or satellite yards, and they 
rarely--if ever--bothered to talk to our Carmen on duty. One would 
think if the FRA field inspectors are interested in mechanical safety, 
they would spend time talking to the folks on the ground that inspect 
for safety compliance.
    Second, to our knowledge, the FRA did not audit any of the yards 
where Carmen have been fully removed from service and replaced with 
``Utility workers,'' a somewhat flex position that is not a qualified 
mechanical inspector, nor can they perform repairs. There are several 
yards that currently have either no Carmen or only a single Carman 
assigned to inspect. These yards include:
      Kansas City, KS, 18th Street Yard--Removed 20 Carmen. 
Having Utility positions perform inspections. Carmen only sent to make 
repairs flagged by Utility or FRA.
      Herrington, KS--Removed 13 Carmen. Having Utility 
positions perform inspections. A ``Travelling Carman'' is dispatched 
from Wichita, KS if a repair is flagged.
      Wichita, KS--Removed 12 Carmen. Switchmen now performing 
inspections. Two ``Travelling Carmen'' make repairs if any are found.
      St. Louis, MO--Removed 8 Carmen. Traincrews are 
performing all inspections in this yard.
      Dallas, TX, Miller Yard--Removed 14 Carmen. Traincrews 
and Utility are doing all inspections.
      Arlington, TX--Removed 3 Carmen. Traincrews and Utility 
are doing all inspections.
      Texarkana, TX--Removed 5 Carmen. Traincrews and Utility 
are doing all inspections.
      Spring, TX, Lloyd/Spring Yard--Removed 4 Carmen. 
Traincrews and Utility are doing all inspections.
      Beaumont, TX--Removed 12 Carmen. Replaced with 4 Utility 
men to do all inspections.
      Angleton, TX, Angleton Yard--Removed 6 Carmen. Replaced 
with 4 Utility men to do all inspections.
      Lake Charles, LA--Removed 2 Carmen. Replaced with 2 
Utility men to do all inspections.
      Shreveport, LA--Removed 12 Carmen. Replaced with unknown 
number of Utility men to do all inspections.
      La Porte, TX, Strang Yard--Removed 5 Carmen. Replaced 
with unknown number of Utility men to do all inspections.
      El Paso, TX, Alfalfa Yard--Removed 17 Carmen (sent only 2 
to Santa Teresa yard). Replaced with unknown number of Utility men to 
do all inspections.
      Pueblo, CO--Removed 2 Carmen. Train crews are now 
performing all inspections.
      Cheyenne, WY--Removed 8 Carmen. Only 3 left on the 
property.

    We have asked the FRA Safety Management Team--6 (SMT) to inspect 
these yards in particular, and to do so without tipping off Union 
Pacific management. It is THESE yards where inspections, both inbound 
and outbound, are either not being performed at all or are not being 
done in full compliance with FRA regulations.
                             Fatigue Issues
    Finally, some attention has been paid to railroad workers on 
fatigue issues in the industry, but not enough. And rarely are studies 
aimed at Carmen or other shop crafts. As noted, in the PSR era, Carmen 
are being forced into overtime constantly. Many report forced overtime 
to include 16 hour shifts, 5-6 days in a row. Many of our members sleep 
in their cars between shifts so they can get an extra hour or two of 
rest, instead of wasting time commuting home and back.
    This is NOT a healthy working environment.
    Workplace fatigue is generally considered a workplace hazard, as 
countless studies have shown, from both public (i.e. OSHA) and private 
studies. The risk for a railroad employee is further compounded by the 
nature of the work our members perform. Trains are incredibly heavy, 
unstoppable objects, and everything in a rail yard ``hurts.'' 
Therefore, over the years regulations have placed emphasis on practices 
and policies to reduce those risks as much as possible. That's why we 
have blue flag protections, as well as strict training to perform job 
tasks in a safe, effective manner.
    Unfortunately, a lot of those practices and policies get thrown out 
the window in the PSR era. And not necessarily by intention. Management 
isn't telling our members to perform tasks in unsafe manners. They're 
too smart to do that. But they don't have to, because it's all implied. 
The pressures on managers to reduce dwell times places further 
pressures on our members to cut corners not just on inspections, but on 
their own safety. I routinely hear from my Local Chairmen that they 
don't believe the pace that our members are being asked to work is 
safe, both for the trains and the members themselves.
    These kinds of issues are hard to quantify. But in the interest of 
preventing the loss of another Carman's life or limb, I strongly urge 
the FRA and Congress to study and adopt policies that cover the whole 
health of shop and yard craft employees.
    The issues raised today are all derived from the pressure placed on 
railroads to adopt these so-called ``Precision Scheduled Railroading'' 
practices. These pressures to cut headcounts and reduce dwell times run 
contrary to how our members were trained to ensure that trains on our 
nation's railroads are safe. It is truly a sad time in the rail 
industry.
    When I began my career in 1981, we were at the beginning of the 
Staggers Act era, when railroads were having a tough time turning a 
profit, and our rolling stock and infrastructure was in deep disrepair. 
For the following 35 years, we--the working men and women of the rail 
industry--have turned things around to make the railroads profitable 
enterprises.
    Approximately 6 years ago, PSR began spreading throughout the 
industry like a virus, once the leeches on Wall Street realized there 
was a profit to be made by extracting wealth out of the industry. 
Today, we have 45,000 (29%) fewer employees in the rail industry--and 
the cuts to the Carman craft are a significant portion. But in order to 
keep up with service demands, the much fewer Carmen throughout the 
industry are asked to do much much more.
    As my colleague Matt Hollis stated before the Surface 
Transportation Board a few weeks ago: the relative quality of job is 
now gone. What were once considered highly-desired and competitive 
careers have been transformed into what you're seeing today: a labor 
shortage where the job is so unappealing that our members are either 
refusing recall or outright resigning their positions. This is NOT 
normal, nor is it sustainable.
    A wise colleague of mine said to me: ``the railroads are burning 
the candle at both ends--burning their customers one, and burning out 
their employees on the other.''
    I believe that to be true.
    Thank you for the opportunity to testify.

                                                        Attachments
    [The attachments referenced in Mr. Grissom's prepared statement are 
retained in committee files and are available online at:
https://docs.house.gov/meetings/PW/PW14/20220614/114882/HHRG-117-PW14-
Wstate-GrissomD-20220614-SD001.pdf ]

    Mr. Payne. Thank you, sir.
    Next we have Mr. Cothen.
    Mr. Cothen. Mr. Chairman, members of the subcommittee, 
thank you for the opportunity to discuss railroad safety. I am 
here as an individual having retired from FRA in 2010 after a 
total of 36 years in the agency, two decades of which were as a 
senior executive working on railroad safety policy issues and 
including a stint as Associate Administrator for Safety. I 
concluded my term as Deputy Associate Administrator for Safety 
Standards.
    My prepared statement provides some detail, but let me make 
three points very directly focusing for today on the management 
of in-train forces. You heard Administrator Bose refer to that 
and Mr. Chapman refer to that.
    First, the immense progress that the railroads had made in 
safety over the past few decades has stalled out. Further 
progress has been arrested by the railroad's commitment to one 
form or another of so-called Precision Scheduled Railroading. 
One of the features of PSRs implemented has been the use of 
very heavy and long trains often marshaled without adherence to 
train makeup principles based on research and experience. 
Technology has sometimes been underutilized; at other times, 
technology has been applied beyond its demonstrated capacity.
    The result has been a succession of embarrassing and 
dangerous accidents that need not have occurred. These are 
often characterized as human factor accidents with the 
implication that an employee has just made mistakes. But for 
the most part, they are organizational accidents driven by 
management decisions. Other accidents involving management of 
in-train forces are being reported as equipment related, but 
many equipment failures have resulted from excessive draft and 
buff forces in poorly assembled trains.
    Second, the problem will not solve itself. Investors are 
demanding huge payouts in the form of stock buybacks and 
dividends. PSR is designed to deliver cash to the bottom line. 
The Congress and FRA need to place countervailing pressure on 
the railroads through tough but flexible safety regulations. 
Very likely, FRA cannot do it alone, given the propensity of 
industry to seek shelter or just endless delay in the 
excruciating regulatory process and the increasingly business-
friendly Federal courts. Congress needs to provide direction.
    Third, it is important for us to raise our eyes above the 
current morass and consider the future of rail technology. 
Today's braking technology was conceived in the 1870s, and it 
still has inherent limitations. We need electronically 
controlled pneumatic brakes. ECP brakes were developed by the 
AAR and suppliers in the 1990s. They were authorized for use in 
selected revenue service under waivers that I signed, and then 
they were authorized and incentivized by regulations that we 
issued in 2007.
    At that point, the momentum died. When FRA and PHMSA tried 
to apply ECP brakes to high-hazard unit trains, the railroads 
fought it, even though most of the costs would have been paid 
by shippers and most of the benefits would have flowed to the 
railroads. We need a legislative mandate for FRA to move 
forward with the phased implementation of ECP brakes. The 
railroads will not protect their own future so long as the goal 
is short-term profitability.
    This is the fact: When lavish returns on investment will 
not be realized within the tenure of current railroad 
managements, investment will be deferred. Positive Train 
Control took a legislative mandate and 35 years to get done. In 
the case of ECP brakes, progress has already been deferred for 
over two decades.
    Mr. Chairman, to provide a better explanation of this 
complex topic, I have provided the committee, in addition to my 
prepared statement, my white paper on management of in-train 
forces, which is now in its third revision. It could also be 
found at the Railway Age website. I look forward to any 
questions the subcommittee may have. Thank you.
    [Mr. Cothen's prepared statement follows:]

                                 
  Prepared Statement of Grady C. Cothen, Jr., Retired, Transportation 
                           Policy Consultant
    Chairman Payne, Ranking Member Crawford, Chairman DeFazio, Ranking 
Member Graves, and members of the Subcommittee, thank you for the 
opportunity to appear before you to discuss an important safety issue: 
management of in-train forces. I am here as an individual, not in a 
representative capacity. I have maintained a strong interest in 
transportation safety after a career of 36 years at the Federal 
Railroad Administration and additional work, following retirement from 
Federal service, for a passenger railroad and a major transit 
authority. Since 2016, I have been fully retired, although I remain a 
member of the District of Columbia Bar and several professional 
associations.
    When we speak of managing in-train forces, we mean at least two 
things. The first is proper control of the train as a whole, ensuring 
that it will not exceed the permitted speed, that it can stop when and 
where it needs to stop, and that it will not roll away uncontrolled. 
The second is control of tensile (draft) and compressive (buff) forces 
within the train as it gains momentum, is slowed by braking effort, and 
gathers up or distributes ``slack'' among the locomotives and cars. If 
draft and buff forces are not properly controlled, excessive lateral 
over vertical forces can be translated to the wheel/rail interface, 
resulting in wheel lift or rail rollover. Significant damage can also 
be done to car components, often resulting in a train separation and an 
emergency brake application leading to a derailment.
    The challenge of managing in-train forces has been with us 
throughout the history of railroads. From the advent of ``automatic'' 
train air brakes in the 1870's, to joint government and industry 
research on track/train dynamics in the 1970's, to the adoption of 
mandatory two-way end-of-train telemetry as a replacement for the 
caboose in the 1990s, and to the more widespread use of distributed 
power locomotives, this is a field that has benefitted from enhanced 
knowledge and improved technology.
    Still, when FRA reported to this Committee in 2005\1\, railroads 
continued to report train accidents related to train make-up and train 
handling. That pattern continues to the present date. There is good 
reason why the pattern should be disrupted. FRA research has developed 
and validated a computer model (``TEDS'' \2\) which, like its industry 
counterpart (``TOES'' \3\) is capable of evaluating management of in-
train forces for purposes of accident investigation and accident 
prevention. Thus, it would seem to be time for FRA to take a more 
active role in overseeing this area of railroad safety, quite apart 
from the other developments.
---------------------------------------------------------------------------
    \1\ Safe Placement of Train Cars: Report to the Senate Committee on 
Commerce, Science and Transportation and the House Committee on 
Transportation and Infrastructure (FRA June 2005).
    \2\ Train Energy and Dynamics Simulator
    \3\ Train Operations and Energy Simulator
---------------------------------------------------------------------------
    What are the other developments? Driven by investor demands, major 
railroads have plunged head-long into one or more versions of so-called 
``Precision Scheduled Railroading'' or PSR. This is an operating 
philosophy that has produced neither precision nor scheduled 
operations. It has succeeded handsomely in driving cash to the bottom 
line, facilitating massive distributions through stock buy-backs and 
dividends.
    We all want our freight railroads to be profitable--none more than 
my generation of FRA personnel. As colleagues under successive 
Administrations, we helped the industry through the Northeast rail 
reorganizations, the bankruptcy of Midwest carriers, economic 
deregulation through the Staggers Rail Act, and the return of Conrail 
to the private sector, among many misalignments in the track structure 
along the way.
    Profitability is a critical element of success, particularly for an 
industry that is both capital and labor intensive and needs to generate 
its capital from operations. But corporate responsibility requires 
consideration of employees, customers, and affected communities, as 
well as investors.
    The first obligation of the railroad is to operate safely, and as a 
former safety enforcement attorney and regulator I'm delighted that we 
have seen immense progress over the last several decades. However, this 
testimony addresses an area in which major railroads have regressed and 
need to do a better job.
    What is the problem? Perhaps, the simplest way of explaining this 
is first to call out the types of accidents under discussion. In broad 
summary, they are events involving one or more of the following:
      Trains that are poorly marshalled because of the improper 
placement of blocks of loaded cars, empty cars, long and short cars, or 
cars presenting special problems (mostly cars with end of train 
cushioning devices).
      Trains that lack adequate means of control because of the 
locomotives assigned and their placement in the train.
      Trains for which the train air brake line is too long 
(between assigned locomotives) to function as intended.
      Trains marshalled with the expectation that locomotives 
distributed within the train will remain in communication with the 
controlling locomotive in the front but without sufficient means of 
relaying electronic commands. (This can happen because communications 
are blocked by terrain and other local conditions or simply because the 
train is too long.)
      Trains required by management to be controlled by energy 
saving on-board systems, when the systems are not adequate to the job 
given train make-up or route conditions.

    These types of problems arise much more frequently under PSR 
operations because this type of operating plan calls for--
      Power assigned to each train to be minimally adequate
      Pre-blocking to destination of rail cars regardless of 
the impact on train make-up of large blocks picked up along the route 
of travel
      Aggregation of car types that formerly would be in trains 
of uniform profile (intermodal trains, unit trains) into very long and 
heavy manifest trains, and
      Minimum staffing in yards and terminals, and reduced 
numbers of crews handling local switching. This results in the 
requirement for road crews to handle over-the-road challenges and also 
perform local switching involving drafts of cars much longer and 
heavier than previously would have been the case.

    So, how are they doing with this traditional mix of potential 
problems and brand-new problematic practices? The cleanest way to look 
at this is to examine Class 1 railroad train accident performance. 
Since the late 1970s, Class 1 railroads have gotten better and better, 
decade after decade, until the current period. For now, however, they 
have hit a plateau:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  Figure 1_Class 1 railroads, rate for all derailments (yard, siding, 
                            main line, etc.)

    Figure 1 focuses on derailments, for all causes and on all types of 
tracks. There is a point of potential contention here because we use 
the rate ``per million train miles.'' This rate has traditionally been 
used as the appropriate measure of safety by the industry and FRA. It 
is fair to say that with fewer trains the rate might rise. But it is 
not as easy to say what another normalizing statistic should be. As the 
graph shows, Class 1 railroads are hardly knocking it out of the park 
when it comes to freight car miles or ton-miles of transportation 
service. The markets railroads serve are growing much faster than 
railroad car loadings or intermodal units transported (but that is for 
another testimony). To be fair, the decline of coal as a fuel has also 
cut drastically into ton miles.
    If we stick with Class 1 railroads and consider only the raw 
counts, and only for main line derailments, Figure 2 shows what the 
picture looks like:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

             Figure 2_Derailments, main line only (Class 1)

    Figure 2 illustrates the lack of progress in derailment prevention 
during the PSR era, which began among the major railroads in the United 
States in mid-decade. But how can this be? Aren't we making big 
progress in automated track inspections, more frequent internal rail 
flaw testing, better wayside detectors and much improved use of the 
data from these systems? In general, we would say ``yes.'' Figure 3 
provides some insight:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

           Figure 3_Derailments by cause (Class 1 main line)

    FRA accident reporting breaks up the various ``cause codes'' into 
``buckets,'' and historically track/structure causes were most 
numerous. Note the steady decline in derailments related to track and 
structures. However, these declines have been offset by a steady rise 
in so-called ``human factor'' accidents and the persistence of 
equipment-caused accidents. The latter is surprising, given the 
widespread deployment of wheel temperature and bearing detectors, flat 
wheel detectors, and other technology (and the advent of ``big data'' 
used to trend individual cars in service to permit early intervention).
    How, then, does this relate to management of in-train forces? Based 
on Federal accident investigations and my own review of the data, 
derailments caused by poor management of in-train forces are being 
reported primarily under ``human factor'' codes. This categorization 
fits the reporting system, which was established with heavy industry 
input and is managed by FRA.
    However, it is important to know the ``human factors'' include 
organizational failures (e.g., train make-up, pushing technology 
farther than it is ready to go) as well as individual mistakes. 
Further, even events reported as individual mistakes may grow out of 
organizational failures (e.g., dispatching a train that has little 
chance of making it safely over the railroad). My own assessment, after 
review of multiple years of raw train accident records, is that 
organizational factors (management decisions related to PSR) are behind 
this lackluster performance.
    From the review, it is also evident that mechanical (equipment) 
codes get applied to derailments caused by improper management of in-
train forces, sometimes questionably (e.g., when a coupler fails 
without prior crack) and sometimes because the equipment code is the 
only one available (e.g., when communication fails among locomotives in 
the very long train).
    Miscellaneous codes appear in the relevant data, as well, including 
my personal favorite, ``M599--Other miscellaneous causes.'' That code 
was applied to a derailment that was determined both by FRA and by the 
railroad's own modeling to have been caused by train make-up. But the 
cause code was never updated. (This is only one of many errors evident 
in the filed accident reports.)
    What can we do about it right now? Preventing each and every 
accident involving management of in-train forces is not a goal within 
our grasp given present technology and knowledge. However, the industry 
can do much better today from the point of view of safety, and provide 
much better service to its customers by using common sense. The 
industry should--
      Utilize the knowledge and experience that has been 
reduced to train make-up rules on every railroad. Follow your own 
rules, and update them promptly.
      Don't rely on technology that is not ready (e.g., using 
automated operations in territory where expertise and air brakes are 
required) or that is not properly deployed (e.g., without supplementary 
communications to close gaps).
      Don't ask employees to do the impossible. If you have to 
put multiple locomotives both in the middle of the train and in the 
rear, and the train has to traverse undulating terrain with air brakes 
used to avoid run-in or arrest movement down a grade, think twice. 
Would you want to try to manage that train?

    Very clearly, major railroads are not prepared to do this on their 
own, so the Congress and FRA need to impose some discipline through an 
appropriately flexible regulatory structure.
    How can we mold a better future? For the longer term, railroads 
express ambitions to automate their operations more fully. They are not 
even close to being able to do that. However, with or without 
automation, they would be much better positioned for the future with 
electronically controlled pneumatic brakes (ECP brakes).
    The industry declares its love for technology, but two-way end-of-
train devices took Congressional action. Positive Train Control came to 
fruition 35 years after its conception only because of a statutory 
mandate. Both technologies were implemented under rules I helped to 
write.
    Our usual attitude as believers in market forces is that management 
will do what makes sense, and it doesn't need government to tell them. 
Very often, happily, that is the case. However, when it comes to major 
transitions that will cost a good amount of capital up front but will 
not fully pay off during the tenure of the senior management then in 
charge, the matter will often be deferred. If the investment itself is 
not the major issue, often the fear of failure in implementation is.
    ECP brakes has now been deferred since the 1990's, despite FRA's 
efforts to support and incentivize implementation. The result has been 
that run-away accidents have not ended and management of in-train 
forces has been made increasingly difficult. It's time for ECP brakes.
    Why should we care? The price for not moving forward on management 
of in-train forces will be more derailments, more releases of hazardous 
materials, more communities impacted, more disruptions to shippers' 
supply chains, and more employees confronted with dangerous working 
conditions on trains, on the ground, and during wreck clearance. Very 
fortunately, most derailments are not catastrophic events; but the more 
we treat them casually the more likely it is that we will have a 
catastrophe. And the failure to treat railroad braking systems as 
safety-critical will lead to further run-away accidents that will claim 
lives as well as property.
    Mr. Chairman, one of the reasons little has been done about 
management of in-train forces, apart from the traditional focus on 
power brake safety, is that the subject is dense and complicated. The 
problem is one of interfacing systems, rapid technological change, the 
variety of operating environments and operating plans, and the need for 
human-centered engineering. The whole field is further complicated by 
the realities of railroad interline service and joint operations, 
meaning no single railroad can address it all alone.
    I have provided the Committee with my White Paper on Management of 
In-Train Forces (v3.0, June 2022), which explores the related issues 
and attempts to frame appropriate questions and proposals, in some 
depth. It even discusses the potential of ECP brakes to prevent or 
mitigate some highway-rail grade crossing accidents and similar 
obstruction events. I would appreciate its being made a part of the 
record.
    My hope is that Congress will charge FRA with developing flexible 
regulations governing the management of in-train forces and direct FRA 
to proceed with regulatory action requiring the phased implementation 
of ECP brakes. If I can be helpful to members or staff going forward, I 
would be happy to do so pro bono publico.
    Thank you for the opportunity to address this important issue. I 
would welcome the opportunity to respond to any questions.

                                                         Attachment
    [The 110-page white paper entitled, ``Management of In-Train 
Forces: Challenges and Directions'' by Grady C. Cothen, Jr. is retained 
in committee files and is available online at https://docs.house.gov/
meetings/PW/PW14/20220614/114882/HHRG-117-PW14-Wstate-CothenG-20220614-
SD001.pdf ]

    Mr. Payne. Thank you, sir.
    Now we will have Mr. Bachman for 5 minutes.
    Mr. Bachman. Good morning, Chairman Payne, Ranking Member 
Crawford, and members of this esteemed subcommittee. My name is 
Nate Bachman, and I am the vice president of sales and business 
development at Loram Technologies, Inc., LTI. Based out of 
Georgetown, Texas, we are a division of Loram Maintenance of 
Way.
    In addition, I serve on the Executive Committee as the 
secretary/treasurer of Railway Engineering-Maintenance 
Suppliers Association, REMSA, a national trade association that 
represents companies that manufacture rail maintenance-of-way 
equipment and provide related services. I am honored to join 
this distinguished panel today and to provide our perspective 
on the important topic of freight rail safety.
    I will first begin by commending Congress for the passing 
of the Infrastructure Investment and Jobs Act. The IIJA 
provides visionary and unprecedented levels of funding for key 
rail safety programs.
    While Loram Technologies is just one business within REMSA, 
the rail supply segment of the industry has a significant 
economic fingerprint. Railway suppliers directly employ more 
than 125,000 people in manufacturing, repair, maintenance, and 
leasing, among others.
    In addition to my role on the REMSA board, LTI is also a 
proud and active member of the National Railroad Construction 
and Maintenance Association, or NRC, and the Association of 
American Railroads. Both at LTI specifically and in the entire 
rail supply and contracting industry, safety is our number one 
priority. We work as a company and industry to continually 
improve safety performance.
    In our experience, the most successful work environment is 
one where technology, such as automated track inspection, can 
complement the work on the ground to both augment and improve 
safety for workers and railroads. That is precisely what this 
technology does today.
    To be clear, the intent of this technology is not to 
replace workers. Before LTI and other companies developed these 
solutions, track inspections were both labor and time 
intensive. This technology can detect tiny defects invisible to 
the human eye while enabling railroads to inspect up to eight 
times as much track in a given day.
    By targeting visual inspections through the use of data-
driven technology, we can reduce redundant manual inspections, 
which both enhances greater roadway worker safety and allows 
for an approach whereby track workers' inspection time can be 
dedicated to, and prioritized around, the most pressing track 
defects.
    Loram Technologies utilizes proprietary state-of-the-art 
imaging technology which scans the track to reveal the exact 
condition of every railroad tie and the associated components 
along the way. It pinpoints any potential problems and marks 
their exact location so that the railroad can target and repair 
them in an efficient manner. This technology finds flaws manual 
detection methods may miss, and it does so while traveling at 
speeds up to 25 miles per hour.
    According to the FRA, track-related issues caused one-
quarter to one-third of all train accidents from 2001 to 2020. 
The use of automated track inspection technologies paired with 
visual inspections has helped to drive down this number 
considerably.
    We encourage Congress and the FRA to work collaboratively 
to promote rail technologies that enhance safety in the 
industry. We believe that the waivers that the Class I 
railroads have requested for continuing their ATI pilot 
programs puts safety first and should be continued.
    More data from continued pilots benefits rail workers, rail 
suppliers, railroads, the FRA, and the general public. This 
combination of data-driven findings from ATI technology and the 
visual inspections made by workers on the ground should be a 
powerful force in moving the rail industry forward.
    Thank you for the opportunity to share our perspective, and 
I am happy to answer any questions.
    [Mr. Bachman's prepared statement follows:]

                                 
 Prepared Statement of Nathan C. Bachman, Vice President of Sales and 
             Business Development, Loram Technologies, Inc.
                              Introduction
    Good morning, Chairman Payne, Ranking Member Crawford, and Members 
of this esteemed subcommittee. My name is Nate Bachman and I am the 
Vice President of Sales and Business Development at Loram Technologies, 
Inc. (LTI). In addition, I serve on the Executive Committee as the 
Secretary/Treasurer of the Railway Engineering-Maintenance Suppliers 
Association (REMSA) a national trade association that represents 
companies that manufacture rail maintenance-of-way equipment and 
provide related services. I am honored to join this distinguished panel 
today and to provide our perspective on the important topic of freight 
rail safety.
Loram Technologies
    Let me first begin by commending Congress for passing the 
Infrastructure Investment and Jobs Act (IIJA). The IIJA provides 
visionary and unprecedented levels of funding for key rail safety 
programs. The Consolidated Rail Infrastructure and Safety Improvements 
(CRISI) grant program, in particular, is a vital source of funding for 
the industry to address key safety improvement projects.
    Now for some background on Loram Technologies, Inc. Based out of 
Georgetown, Texas, LTI creates innovative solutions to help the 
railroad industry. From our GateSync and Solaris ballast delivery 
systems to the Aurora track inspection system; our products stand out 
among the rest as technologically advanced, safer, more efficient and 
more productive than traditional methods of getting things done. We 
work with customers across the globe to deliver custom solutions 
designed around their specific needs.
    LTI is part of the Loram Corporation (Loram) based out of Hamel, 
Minnesota. Loram employs more than 1,400 people with the majority of 
those being heavy equipment operators and maintainers working on 
railway lines across North America. The company has manufacturing 
facilities and corporate offices in Minnesota, Illinois and Texas. It 
has always been the company's objective to deliver safe, advanced, and 
efficient solutions to the railroad industry.
REMSA and the Rail Supply Industry
    While Loram Technologies is just one business within REMSA, the 
rail supply segment of the industry has a significant economic 
footprint. Beyond their critical support for a railroad system 
comprising more than 1.6 million railcars, 38,000 locomotives, and 
140,000 miles of track, the railway supply industry is also essential 
to the national economy: generating value, stimulating jobs, and paying 
taxes. The economic contribution of the railway supply industry in 2017 
amounted to more than $74.2 billion in gross domestic product (GDP) and 
they paid $16.9 billion in taxes to local, state and federal 
governments. Railway suppliers directly employ more than 125,000 people 
in manufacturing, repair, maintenance, and leasing, among others.\1\
---------------------------------------------------------------------------
    \1\ Tracking the Power of Rail Supply: The Economic Impact of 
Railway Suppliers in the U.S. September 2018. https://www.remsa.org//
Files/Rail_Supplier_EIS_2018.pdf
---------------------------------------------------------------------------
    As I mentioned in my opening, I serve as an officer for REMSA. 
REMSA represents nearly 250 companies in the maintenance-of-way segment 
of the rail supply industry. Most REMSA member companies are small 
businesses with manufacturing facilities and offices located all across 
the United States.
    REMSA was created in 1965 by the merger of the Association of Track 
and Structure Suppliers and the National Railway Appliances 
Association, two long-standing organizations in the railroad 
maintenance-of-way industry. The association represents companies and 
individuals who manufacture or sell maintenance-of-way equipment, 
products, and services, or are engineers, contractors and consultants 
working in construction and/or maintenance of railroad transportation 
facilities. REMSA members constitute a large part of the maintenance-
of-way industry. The association sponsors Railway Interchange, the 
largest exhibit of maintenance-of-way equipment, products and services 
in the United States. REMSA members exhibit rail and track products, 
track maintenance equipment and services, safety devices and software 
that enables the railroad industry to work smarter.
    In addition to my role on the REMSA Board, LTI is also a proud and 
active member of the National Railroad Construction and Maintenance 
Association (NRC) and the Association of American Railroads (AAR).
    Finally, of note, REMSA and NRC collaborate on a grassroots program 
that brings Members of Congress out to our member company facilities so 
we can help educate Congress on the work that our members do and the 
impact they have on the community, rail safety, and the local economy.
   Background on Railway Automated Track Inspection (ATI) Technology
    We appreciate the opportunity to provide our insights on freight 
rail safety, and in particular, how the rise of technology has helped 
to contribute to increased safety in the freight rail industry. As one 
of several companies providing innovative rail inspection technologies 
that complement the hard-working men and women on the ground, LTI is 
well positioned to provide a brief overview of this technology.
    Let me be clear, the intent of this technology is not to replace 
workers. In our experience the most successful work environment is one 
where technology, such as Automated Track Inspection (ATI), can 
complement the work on the ground to both augment and improve safety 
for workers and the railroads. That is precisely what this technology 
does today. Both Congress and the FRA should strive to enact policies 
that foster this critical relationship.
    Both at LTI and in the entire rail supply and contracting industry, 
safety is our number one priority. We work as a company and industry to 
continually improve safety performance. LTI is an active member of the 
NRC Safety Committee and through this work we have participated in 
numerous FRA Rail Safety Advisory Committee (RSAC) working groups 
related to track safety standards and rail integrity regulations.
    Though FRA data trends indicate that over the past 20 years the 
freight rail industry is getting safer, we must always endeavor to work 
together towards producing an even safer industry. Core to this 
objective is taking the railway methods of the past and utilizing the 
technologies of today to usher in the next century of railroading. 
Until as an industry we are able to do this more effectively, progress 
in the rail industry will be hindered.
    Before LTI and other companies developed this technology, track 
inspections were both labor and time intensive. This new technology can 
detect tiny defects invisible to the human eye, while enabling 
railroads to inspect up to eight times as much track each day. By 
targeting visual inspections by using data-driven technology, we can 
reduce redundant manual inspections which both enhances greater roadway 
worker safety and allows for an approach whereby track workers' 
inspection time can be dedicated to and prioritized around the most 
pressing track defects.
    As a provider of these systems, we have seen firsthand how this 
technology can uncover track flaws and ballast deficiencies. In 
addition to track flaws, LTI also uses proprietary state-of-the-art 
imaging technology, which scans the tracks to reveal the exact 
condition of every tie and the associated components along the way. It 
pinpoints any potential problems and marks their exact location so that 
the railroad can target and repair them in an efficient manner. This 
technology finds flaws manual detection methods may miss, and it does 
so while traveling at speeds averaging 25 mph.
    LTI collects approximately 40,000 track miles of data annually. 
With these collections, customers are able to evaluate tie and ballast 
conditions. This data is used for both urgent track repairs as well as 
maintenance planning in successive years. By utilizing technologically 
advanced vision systems, we have been able to collect and catalog data 
on hundreds of thousands of miles of track. This information has been 
effectively utilized to help railroads focus their people and dollars 
to most pressing maintenance needs.
    According to the FRA, track-related issues caused one-quarter to 
one-third of all train accidents from 2001 to 2020. The use of 
automated track inspection technologies, in addition to visual 
inspections, has helped drive down the number of track-caused 
derailments.\2\ Additionally, per a letter that 23 U.S. Senators sent 
to then FRA Deputy Administrator Amit Bose on October 29, 2021, the 
``results of the ATI programs have overwhelmingly proven the safety 
benefits of the concept. In some cases, the ATI tests have resulted in 
an over 90 percent reduction in unprotected main track defects per 100 
miles tested.'' \3\
---------------------------------------------------------------------------
    \2\ Report to Congress: Automatic Track Geometry Measurement System 
Technology Test Programs. Federal Railroad Administration. November 23, 
2021. https://railroads.dot.gov/sites/fra.dot.gov/files/2021-11/
FRA%20Report%20to%20Congress-Track%20Inspection%20Test
%20Program%2011.23.21.pdf
    \3\ Senate letter to FRA Deputy Administrator Amit Bose. October 
29, 2021. https://reason.org/wp-content/uploads/Letter-from-Senators-
to-Amit-Bose.pdf
---------------------------------------------------------------------------
    Pair this with our own observations on the ground and the data from 
the Class I railroads' ATI pilot programs, this technology clearly 
detects track geometry defects with increased accuracy.
                            Recommendations
    It is clear that through both our own experience as a leading 
supplier of automated inspection technology and the data acquired 
through the Class I railroad test programs that the ATI waivers have 
yielded positive safety results. Moreover, as we have seen, the 
development of automated inspection technologies is crucial to 
enhancing safety by reducing the number of track-related and caused 
derailments.
    To that end, we encourage Congress and the FRA to work 
collaboratively to promote rail technologies that enhance safety in the 
industry. We believe that the waivers that the Class I railroads have 
requested for continuing their ATI pilot programs put safety first and 
should be continued. More data from continued pilots benefits rail 
workers, rail suppliers, railroads, the FRA and the general public.
    This combination of data-driven findings from ATI technology and 
the visual inspections made by workers on the ground should be a 
powerful force in moving the rail industry forward. Congress and the 
FRA should carefully consider how to further promote the acceptance of 
this technology in the near future, and should also embrace any new 
future technology that will enhance safety in the rail industry.
                                Closing
    Thank you for the opportunity to share our perspective on freight 
rail safety. I look forward to answering any questions you may have.

    Mr. Payne. Thank you, sir.
    Next we will hear from Ms. Sanborn.
    Ms. Sanborn. Mr. Chairman, Mr. Ranking Member, and 
distinguished members of the subcommittee, thank you for the 
opportunity to be here today.
    Norfolk Southern and the approximately 630 other freight 
railroads operating in the United States form an integrated 
system that provides the world's safest, most productive, and 
lowest cost freight rail service. The U.S. freight railroad 
industry is an irreplaceable national asset that enhances our 
Nation's standard of living and its competitiveness in the 
tough global economy.
    The U.S. rail system owes its success to a lot of different 
factors, but in my opinion, a key ingredient is our dedicated 
workforce. Railroading is a tough, demanding job. The men and 
women of Norfolk Southern put their boots on every day and work 
hard to safely and efficiently serve our customers. It is no 
exaggeration to say that the railroad couldn't operate without 
them, and I am grateful that they have chosen to pursue a 
career in this important industry.
    In railroading, the relentless pursuit of safe operations 
is not optional; it is a business imperative. We have an 
obligation to operate safely for the benefit of our employees, 
our customers, and the communities where we operate. And, while 
we have not yet reached our ultimate goal of zero accidents and 
injuries, we are making significant progress. The overall train 
accident rate, the employee injury rate, and grade crossing 
collision rate have all fallen substantially since the year 
2000.
    Railroads today have lower employee injury rates than most 
other major industries, including trucking, airlines, 
agriculture, mining, manufacturing, and construction, even 
lower than grocery stores. These results are driven by the 
industry's sustained investment in its infrastructure, the 
development of safety technologies, and the modernization of 
operating and maintenance practices.
    But the most important factor in achieving continuous 
safety improvement is the creation of a company culture that 
promotes safety through behavioral changes. Railroads work very 
hard to train their employees and instill in them a high level 
of safety awareness in everything they do. We are among the 
Nation's most frequent recruiters of veterans, whose discipline 
and training are a good fit within a high-performing safety 
culture.
    The Federal Government can also have significant impact on 
the freight transportation sector's ability to achieve positive 
safety outcomes. It is essential that, when the Government 
enacts laws or regulation, it keeps in mind the impact on 
safety of the Nation's entire transportation system. Taking an 
evidence-based, holistic view of the whole transportation 
ecosystem is vitally important to creating national safe 
transportation policy that works for all stakeholders and 
delivers continuous improvements in safety.
    Regulation of crew size is a subject where I think the 
Federal Government would benefit from taking this approach. 
Legislation regulations have been considered that would mandate 
that all Class I freight trains must operate with two employees 
in the locomotive cab, yet there is no evidence that trains 
with one-person crews have accidents at a higher rate than 
trains with two-person crews.
    While it wouldn't enhance safety, there is one thing a 
crew-size regulation would accomplish: It would make 
railroading less competitive against other modes of 
transportation who do not face similar operational 
restrictions. Imposing a minimum crew-size mandate on railroads 
would undermine the policy goals of promoting safer, more 
environmentally sustainable freight transportation.
    The Federal Government also has an important role to play 
in encouraging or at least not discouraging the development of 
safety-enhancing technology. One recent technological 
innovation with demonstrated safety benefits is automated track 
inspection technology.
    In cooperation with FRA, we developed a test to find the 
optimum mix of automated and manual track inspections. On every 
single metric tested, the automated system increased track 
safety and quality, even as the frequency of manual inspections 
was reduced. This system was able to detect defects that were 
imperceptible under visual inspection, while human inspectors 
were able to concentrate on making track repairs and finding 
defects in switches, crossing diamonds, and other areas that 
the automated system could not evaluate.
    Despite these impressive results, the FRA recently denied 
our request for a waiver that would have allowed the same 
combination of automated and manual inspections everywhere on 
the Norfolk Southern system.
    At NS, our goal is to provide a customer experience that is 
safe, efficient, and as cost-effective as possible, but this 
can't happen without technology. We are concerned that FRA is 
not doing everything it can to support the development of 
technologies, such as automated track inspection systems, that 
have actually been shown to work. We respectfully urge 
policymakers at all levels to be proactive, collaborative 
partners with railroads to meet our ultimate goal of zero 
accidents and injuries.
    Thank you again for the opportunity to testify today, and I 
will be glad to take your questions.
    [Ms. Sanborn's prepared statement follows:]

                                 
Prepared Statement of Cynthia M. Sanborn, Executive Vice President and 
   Chief Operating Officer, Norfolk Southern Corporation, and Chair, 
  Safety and Operations Management Committee, Association of American 
                               Railroads
    Thank you for the opportunity to be here today. I am Cindy Sanborn, 
Executive Vice President and Chief Operating Officer of Norfolk 
Southern Corporation, the parent company of Norfolk Southern Railway 
Company. My career in the rail industry has spanned over 30 years and 
has included service for three Class I railroads. I was certified as a 
locomotive engineer for 26 years. While I am testifying today on behalf 
of Norfolk Southern (NS), most of what I have to say is applicable to 
other U.S. freight railroads as well.
    Norfolk Southern's beginnings date back to the earliest days of 
railroading nearly 200 years ago. Today, NS operates approximately 
19,300 route miles in 22 states and the District of Columbia. We serve 
more than 400 general warehouses and distribution centers; more than 
200 lumber and paper facilities; some 120 steel-related facilities; 116 
active coal loading facilities; 78 power plants; and more than 60 auto-
related facilities. We have more than 50 intermodal terminals and serve 
every major port on the East Coast between New York City and 
Jacksonville, as well as several Great Lakes ports and numerous river 
ports. Through connections with our transportation partners, we deliver 
products to consumers in every state and throughout the world.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Together, NS and the approximately 630 other freight railroads 
operating in the United States form an integrated, nearly 140,000-mile 
system that provides the world's safest, most productive, and lowest-
cost freight rail service. The U.S. freight railroad industry is the 
envy of the world. It is an irreplaceable national asset that enhances 
our nation's standard of living and its competitiveness in the tough 
global economy.
    The U.S. rail system owes it success to a lot of different factors, 
but in my opinion the key ingredient is our dedicated workforce. 
Railroading is a tough, demanding job, and not everyone is cut out for 
it. The men and women of Norfolk Southern put their boots on every day 
and work hard to provide a safe, efficient, and reliable service 
product for our customers. It's no exaggeration to say the railroad 
couldn't operate without them, and I am grateful that they have chosen 
to pursue a career in this important industry.
    Throughout my testimony, I will discuss a series of broad 
principles that should govern the relationship between railroads and 
rail safety regulators. Following that, I will briefly examine several 
specific topics related to safety that are particularly germane today.
           Safe and Working Hard Every Day to Get Even Safer
    For Norfolk Southern--and I'm sure I can speak for all railroads 
here too--pursuing safe operations is not optional; it's a business 
imperative. We have an obligation to operate safely for the benefit of 
our employees, our customers, and the communities where we operate.
    While we have not yet reached our ultimate goal of zero accidents 
and injuries, we are encouraged by the progress we have made. Data from 
the Federal Railroad Administration (FRA) indicates that, for the rail 
industry as a whole, the overall train accident rate in 2021 decreased 
32 percent from 2000; the employee injury rate fell 48 percent; and the 
grade crossing collision rate was down 23 percent. Railroads today have 
lower employee injury rates than most other major industries, including 
trucking, airlines, agriculture, mining, manufacturing, and 
construction--even lower than grocery stores. Safety extends to 
hazardous materials too; well over 99.99% of rail hazmat shipments 
reach their destination without a release caused by a train accident. 
These are tremendous safety success stories, driven by the industry's 
sustained investment in its infrastructure, the development and 
advancement of safety technologies, and the modernization of operating 
and maintenance practices.

                        Railroad Accident Rates:
                                2000-2021
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total accidents                           -32%
  Collisions                              -50%
  Derailments                             -35%
  Other                                   -13%
Employee injuries                         -48%
Grade crossings                           -23%
Hazmat incidents \\               -60%
------------------------------------------------------------------------
 Through 2020
 Source: FRA, AAR


    But the most important factor in achieving continuous safety 
improvement is the creation of a company culture that promotes safety 
through continuous education and reinforcement of safe behaviors. This 
is why railroads work very hard to train their employees and instill in 
them a high level of safety awareness in everything they do. Railroads 
work diligently to identify new technologies, operational enhancements, 
training, and other ways to further improve their safety record.
    We recognize that the federal government can also have a 
significant impact on the freight transportation sector's ability to 
achieve positive safety outcomes. Therefore, it is essential that, when 
Congress enacts laws or federal agencies promulgate regulations, they 
not be driven by parochial concerns or persuaded by the use of 
anecdotes that provide an incomplete, and often inaccurate, picture of 
the rail safety environment. And it is equally important that when 
federal officials regulate the rail industry that they not lose sight 
of the impact laws and regulations focused on railroads have on the 
safety of the nation's entire transportation system. Laws and 
regulations, however well intended, that place operational burdens on 
railroads can distort competition within the freight transportation 
sector and divert freight from the much safer rail system to other far 
more dangerous modes of transportation. We urge all federal officials--
not just safety regulators--to take these impacts into account when 
they craft rail regulatory policy. Taking an evidence-based, holistic 
view of the nation's entire transportation ecosystem is vitally 
important to creating a national transportation policy that works for 
all stakeholders and delivers continuous improvements in safety.
                  Technology and Process Streamlining
    New technologies are changing transportation. For example, 
widespread efforts are underway today--including extensive research 
subsidized by taxpayers--to develop autonomous motor vehicles, 
including autonomous trucks that would compete directly with railroads. 
Autonomous vehicle technologies and other technologies impacting 
transportation vary in their stages of development, but these are 
challenges railroads must be ready to confront and compete with once 
commercially viable.
    As such, railroads will continue to work diligently to identify and 
implement new technologies to make their operations more efficient 
while also achieving safety outcomes that are at least as good as what 
we are achieving today. However, the efforts of NS and other railroads 
to harness the power of technology and drive innovation will not be as 
effective as they could be if legislative and regulatory processes and 
requirements fail to keep pace or are not well grounded in evidence-
based, scientific understanding.
    Regulatory reform can, and should, be a key part of any federal 
effort to improve rail safety. Railroads respectfully suggest that the 
FRA and other agencies with regulatory authority over railroads should 
become more forward-looking in how they propose and promulgate new 
rules and in their approach to new safety technologies. More 
specifically, these agencies should:
      Carefully identify and describe beforehand the specific 
concern that a particular new rule is meant to address and ensure that 
the new rule actually would address the concern efficiently and 
effectively. Meaningful dialogue with railroads and other interested 
parties is essential in this effort.
      Use current data and sound science to establish the need 
for a new rule and to validate that the benefits of a new rule exceed 
its costs. Assess the impact of any rule on the competitiveness of the 
freight railroad industry and any likely freight diversions to less 
safe modes of transportation.
      When proposing rules, also propose metrics by which the 
rules' effectiveness in achieving their stated objectives can be 
judged. Regularly review final rules to determine if they are still 
meeting those objectives.
      Issue emergency orders only after finding a high risk of 
imminent harm. Emergency orders should be narrowly tailored and expire 
automatically after the unusual risk has passed or has been adequately 
addressed.
      Regulation of technologies should occur at the federal 
level to avoid a patchwork of state and local rules that would create 
confusion, inhibit the deployment of new innovations, and undercut the 
efficient functioning of the national rail network.
      Adopt performance-based, rather than prescriptive, 
regulations. Take care not to ``lock in'' existing technologies and 
processes so that new innovations and new technologies that could 
improve safety and efficiency are not stifled. Performance-based 
standards would give industry discretion to innovate, while still being 
subject to effective agency oversight and continuing to ensure the 
safety of rail employees, customers, and the public-at-large.

    This last point, regarding technologies, is especially pertinent. 
Railroads have long applied technological solutions to improve safety, 
enhance performance, and create efficiencies--e.g., inspection cars 
that use sophisticated electronic and optical instruments to inspect 
track alignment, gauge, and curvature; ground-penetrating radar and 
terrain conductivity sensors to identify problems below the ground 
(such as excessive water penetration and deteriorated ballast) that 
hinder track stability; and highly advanced vehicles that detect 
internal flaws in rails; and drones to inspect the underside of 
bridges.
    Railroads will continue to develop and implement new technologies 
to improve infrastructure safety and performance, but achieving maximum 
safety benefits will require regulatory flexibility that does not 
hinder innovation, allows railroads to find what works best, and 
encourages railroads to keep investing in those technologies.
                            Track Inspection
    Today, new railroad technologies must often be utilized in addition 
to existing regulatory compliance practices and procedures--some of 
which have been in place for decades and have long since been made 
obsolete. This means, unfortunately, that the benefits of technological 
advances are often marginalized for purposes of regulatory compliance.
    Track inspections are a case in point. Since the advent of 
railroading, track defects have been a cause of train accidents, 
especially derailments. Historically, track inspections have been 
conducted visually by track inspectors using hand-held measuring tools. 
These manual inspections are conducted either on foot, or, more often 
today, in railroad ``hi-rail'' vehicles.\1\ Based on a rule published 
in 1971--more than 50 years ago--the FRA prescribes how often track 
must be inspected in this manner.
---------------------------------------------------------------------------
    \1\ A hi-rail vehicle is a specially designed vehicle that can 
operate on roadways and rail tracks and is outfitted with track 
inspection technologies.
---------------------------------------------------------------------------
    In recent years, though, automated track inspection (ATI) has 
dramatically changed the nature of track inspection. ATI systems use 
technology (e.g., lasers and cameras) to measure and identify railroad 
track defects. ATI systems are mounted on freight cars or locomotives 
\2\ that inspect track during their day-to-day operations. These 
systems collect and analyze track information while trains are 
operating at normal speed and pulling freight across the network. 
Additionally, a measurement showing how track structure is actually 
performing under the load of a train is more valuable from a safety 
perspective than a static measurement taken during a visual inspection 
from a hi-rail vehicle.
---------------------------------------------------------------------------
    \2\ NS is pleased to be the first North American freight railroad 
to develop and deploy an ATI system mounted on a locomotive.
---------------------------------------------------------------------------
    With ATI, inspection data are sent wirelessly in real time to an 
inspection office where track engineers verify the data and arrange for 
needed repairs. If necessary, maintenance personnel are dispatched to 
visually inspect track identified as potentially having a defect. ATI 
systems allow track inspections at frequencies and levels of detail 
that are not possible under standard visual inspection techniques. Put 
another way, ATI detects track defects with far more accuracy, 
consistency, and frequency than do manual visual inspections. ATI also 
results in the collection of huge amounts of track inspection data, 
allowing railroads to better understand and evaluate the safety of 
their infrastructure and to develop improved preventative maintenance. 
In other words, capital resources are better directed to ensure track 
repairs are most accurately planned. The enormous advantages of ATI 
explain why railroads have voluntarily invested significant resources 
to develop and implement these systems. The FRA itself has also 
expended millions of dollars annually to develop and use this 
technology to improve track safety.
    ATI inspections reduce (but do not eliminate) the need for visual 
inspections. In fact, they help to make visual inspections more 
effective by directing track inspectors to focus on areas that need 
greater attention. ATI also lower employee risk exposure, as there is a 
decreased need for inspectors to physically occupy track solely to 
fulfill obsolete manual inspection requirements. Moreover, greater use 
of ATI would increase rail network capacity and supply chain benefits 
because existing track inspection procedures require railroads to 
devote scarce capacity to visual inspections--capacity that could 
otherwise be devoted to moving freight. Better track safety that 
results in fewer track-caused accidents would also reduce supply chain 
impacts that occur due to accidents and the subsequent time-consuming, 
resource-intensive accident clean-up and repair efforts that flow from 
them.
    In recent years, the FRA gave several railroads, including NS, 
permission to test ATI systems on portions of their networks in 
conjunction with a reduced level of traditional visual inspections. The 
results of these test programs were impressive. NS's experience is 
illustrative. We call our ATI system an ``automated track geometry 
measurement system,'' or ATGMS. We conducted our test program in our 
Blue Ridge Division, where the wide variety of climatological, 
topological, and operational features render it representative of our 
rail system as a whole.
    On every single metric tested, ATGMS increased track safety and 
quality, even as the frequency of manual inspections was reduced. ATGMS 
was able to detect defects that were imperceptible under visual 
inspection, while human inspectors were able to concentrate on making 
track repairs and finding defects in switches, crossing diamonds, and 
other areas that ATGMS could not evaluate.
    Because our data clearly demonstrated that ATGMS was safer than 
legacy methods, in March 2021, we petitioned the FRA for a permanent 
waiver that would allow us to reduce manual inspection for all lines on 
which we had implemented ATGMS. However, in March of this year, FRA 
denied that request. With all due respect to the FRA, its denial in our 
case was contrary to the evidence. The FRA did not explain how granting 
our waiver request could possibly endanger rail safety or the public 
interest. It did not explain how granting a waiver could ``short-
circuit'' the existing Railroad Safety Advisory Committee's (RSAC) 
consideration of ATI technology.\3\ Indeed, even as the FRA described 
the test program as ``successful,'' it ignored the key finding--that 
systemwide implementation of ATGMS would improve rail and worker 
safety.
---------------------------------------------------------------------------
    \3\ RSACs are formally chartered Federal Advisory Committees and 
typically include representatives from all the FRA's major stakeholder 
groups, including railroads, labor organizations, suppliers, and other 
interested parties. Their purpose is to provide a forum for 
collaborative rulemaking and program development. RSACs exist for many 
different topics, including ATI systems.
---------------------------------------------------------------------------
    On the same day that it denied our request for a waiver, the FRA 
denied a similar request from BNSF Railway. In BNSF's case, the FRA 
denied BNSF the ability to expand a pre-existing waiver to new 
territories even though the data BNSF had already developed under that 
waiver conclusively showed that doing so would improve safety on those 
new territories. The FRA has previously announced that it will allow 
existing ATI test programs performed by other railroads to expire in 
November 2022, when their initial terms are up, despite their positive 
safety improvements. The FRA's actions are difficult to understand. The 
combination of enhanced track inspections with reduced visual 
inspections provides a far, far better system in terms of detecting 
track defects than the 50-year-old visual inspection regime. The FRA 
had encouraged the development and deployment of this technology for 
years until abruptly changing their approach. The FRA should go back to 
encouraging, not discouraging, technological advancements like these 
that advance safety.
    The ATI example shows how a broader use of the FRA's waiver 
authority could be used to modify FRA regulatory directives in light of 
changed circumstances, without sacrificing appropriate regulatory 
oversight. Unfortunately, the timeline for granting even simple FRA 
waiver requests is typically measured in months or years, and waivers 
often come with conditions that largely negate their value. Congress 
should direct the FRA to make permanent those long-standing waivers 
whose value has been proven through successful test programs.
    In addition, because short-term waivers from existing regulations 
do not give the rail industry sufficient confidence to invest in new 
technologies, regulatory barriers should be overcome in ways that are 
more enduring than waivers. For example, the FRA could issue waivers of 
indefinite duration and provide procedures for the expedited conversion 
of time-limited waivers to permanent waivers or final rules if 
equivalent or improved safety has been demonstrated.
                             Brake Systems
    Railroads are deeply disappointed in the FRA's recent treatment of 
ATI technology, but are more pleased with recent actions regarding rail 
braking systems that will move safety forward.
    FRA's final rule implementing miscellaneous amendments to its brake 
system safety standards was published in December 2020 and allows for 
railroads to modernize and make their operations more efficient while 
reducing safety risks to employees and the public. More specifically, 
the December 2020 rule modified FRA regulations governing train air 
brake inspections in part by codifying longstanding industry waivers, 
many of which were adopted during the Obama Administration, that 
allowed railroads to lengthen the number of miles a rail car could 
travel before the car's brake systems had to be tested. Safety data 
gathered under the waivers demonstrated conclusively that more advanced 
testing methods for automated single car air brake tests result in a 
significant decline in freight car brake failures compared to the older 
test method. The final rule also extends the time period between 
certain air brake inspections. These regulatory updates were 
appropriate due to the proliferation of technological improvements to 
air brake systems.
    Meanwhile, in January 2021, the FRA issued a Notice of Proposed 
Rulemaking (NPRM) which proposes to allow railroads to replace 
antiquated paper records of rail car brake inspections with modernized 
electronic Air Brake Slip (eABS) recordkeeping systems. The eABS 
systems allow railroads to accurately and efficiently track inspections 
and mileage electronically on a freight car-by-freight car basis. The 
old regulations require trains to stop more often than necessary for 
inspections and limit trains' ability to drop off and pick up other 
railcars due to recordkeeping limitations that necessitate treatment of 
all the cars in a train as a single unit to be managed by a paper 
record.
    An eABS system provides robust, constantly updated car-specific 
data. Coupled with railroads' use of modern preventative and predictive 
maintenance strategies, wayside detectors and machine vision 
stations,\4\ modernized mechanical equipment components, and improved 
employee training programs, eABS systems permit far safer and more 
efficient train operations.
---------------------------------------------------------------------------
    \4\ Machine vision is, in essence, an MRI for a rail car. As a 
train passes through a machine vision imaging area, lasers and cameras 
quickly provide a three-dimensional model of each piece of train 
equipment, identifying actual and potential defects. The model and 
images can be viewed remotely from anywhere, allowing these ``in 
advance'' inspections to be conducted rain or shine, day or night, from 
the comfort of a desk chair. They allow railroads' mechanical teams to 
know what repairs are needed before a train arrives in a rail yard. 
This improves safety, speeds the repair process, reduces the time 
trains have to spend in rail yards, reduces costly system delays, and 
improves reliability and customer service.
---------------------------------------------------------------------------
                        Fatigue Risk Management
    On December 22, 2020, the FRA published an NPRM that, if 
implemented, would require railroads to develop and implement Fatigue 
Risk Management Programs. The NPRM would require railroad fatigue plans 
to: (1) identify safety hazards associated with fatigue; (2) assess the 
risks associated with identified hazards; (3) prioritize risks for 
mitigation; (4) implement mitigation strategies for those risks; (5) 
track the effectiveness of mitigation strategies; and (6) revise 
fatigue plans after review of the effectiveness of such strategies. 
Fatigue plans would set specific fatigue-related safety goals and 
describe strategies for reaching those goals.
    NS and other railroads want properly rested crews; it is not in a 
railroad's best interest to have employees who are too tired to perform 
their duties properly and safely. That's why railroads have long worked 
with their employees and others to find innovative, scientifically-
based solutions to fatigue-related problems. Because factors that can 
result in fatigue are multiple, complex, and frequently intertwined, 
there is no single solution to fatigue. Railroads are concerned that as 
the NPRM process plays out, the FRA will attempt to expand the scope of 
this NPRM to encompass crew scheduling issues that are properly within 
the purview of collective bargaining between railroads and rail labor.
    Many rail employees work set schedules. However, some rail 
employees, such as some train crews, work flexible schedules that vary 
based on a variety of factors, including business levels, the time of 
the year, and the day of the week. Weather conditions, track 
maintenance, accidents, an unexpected employee illness, and dozens of 
other factors can affect an employee's work schedule, thus impacting 
the time other crews will be needed. Moreover, in many cases, 
collective bargaining agreements allow rail employees, especially those 
with the most seniority, to largely determine for themselves when and 
how many hours they work (subject to limitations on the maximum number 
of hours a rail employee can work). These employees' actions, in turn, 
affect how many hours, and when, less senior employees work. This 
greatly complicates railroads' ability to schedule crew assignments.
    Scheduling is a complicated issue with circumstances unique to each 
railroad. The FRA should refrain from interjecting itself into this 
matter and instead allow railroads to continue to address the issue as 
part of the collective bargaining process.
                               Crew Size
    As members of this Committee are aware, legislation and regulations 
have been proposed that would mandate that all Class I freight trains 
must operate with a certified locomotive engineer and a certified 
conductor in the locomotive cab.
    Existing FRA regulations do not mandate minimum crew staffing 
requirements. Some non-Class I railroads have long operated with just 
one person in the locomotive cab, and thousands of Amtrak and commuter 
passenger trains, carrying hundreds of thousands of passengers, operate 
every day with just one person in the locomotive cab. For Class I 
railroads, industry practice to date has been to have two-person crews 
for over-the-road mainline operations. On NS and other Class I 
railroads, the subject of crew size has typically been addressed as 
part of the collective bargaining process with rail labor, and 
railroads believe such matters should continue to be addressed in that 
venue.
    The major reason offered by proponents of a two-person crew mandate 
is that it would enhance rail safety. Yet no one--not the FRA, not 
sponsors of the legislation in Congress, not rail labor--can point to 
hard data that support this contention. There is no evidence that 
trains with one-person crews have accidents at a higher rate than 
trains with two-person crews. The FRA itself, after its own review, 
stated in 2009 that it found no ``factual evidence to support the 
prohibition against one-person operations.'' \5\ The FRA again reviewed 
the data on this issue in 2019 and determined that ``issuing any 
regulation requiring a minimum number of train crewmembers would not be 
justified because such a regulation is unnecessary for a railroad 
operation to be conducted safely at this time.'' \6\
---------------------------------------------------------------------------
    \5\ FRA, Denial of BLET Petition on RCO and Other Single-Person 
Operations, Nov. 10, 2009
    \6\ FRA's May 28, 2019 Withdrawal of Notice of Proposed Rulemaking 
in Dkt. FRA-2014-0033.
---------------------------------------------------------------------------
    While crew size mandates have never been supported by safety data, 
they make even less sense today with the implementation of positive 
train control technology (PTC), which has been installed and is 
operational on tens of thousands of miles of rail line throughout the 
country. PTC is a system of technologies designed to automatically stop 
a train before certain accidents caused by human error occur. PTC 
advances rail safety through the use of advanced technology, while at 
the same time further eliminating the need for ``a second set of eyes'' 
in locomotive cabs in certain circumstances. Neither NS nor other Class 
I railroads seek the ability to impose one-person crews unilaterally. 
Rather, we seek the flexibility to continue to work with rail labor 
under the existing collective bargaining framework to identify when the 
presence of PTC, or other technologies, allow a reduction in the number 
of crewmembers in a locomotive cab without jeopardizing rail safety.
                            Virtual Training
    The pandemic has been an unspeakable tragedy on many levels, but 
one silver lining of it has been the development of reliable new video 
communications systems that allow individuals to attend meetings 
remotely. Virtual meeting technology has positive safety implications 
in that it allows, in this case, railroaders to more easily access 
training and other safety-related subjects than would be the case if 
everything had to be done in-person in a classroom. Railroads have 
developed virtual training modules for their employees--often with the 
exact same course materials and a live instructor present, just on a 
video screen rather than in a room together--but they are running into 
resistance from the FRA and rail labor on expanding their use. Virtual 
training can be an effective, efficient way to reach more employees 
more quickly, and railroads urge policymakers to facilitate its use, 
especially at a time when worker shortages are impacting rail service.
                               Conclusion
    At NS, our goal is to provide a customer experience that is as 
safe, efficient, and cost effective as possible. I know other railroads 
share these goals. We are always willing to work cooperatively with 
you, other policymakers, our employees, our customers, and all other 
interested parties to advance our shared interests.
    That can't happen without technology. Technology is the key to 
unlocking further reductions in rail-related accidents and fatalities 
of all kinds. While the rail industry is encouraged by the FRA's 
recently published research which confirmed longstanding railroad data 
that wayside detection systems are effective in the early 
identification of equipment that needs maintenance and improving 
operational safety, railroads remain concerned that the FRA is not 
doing everything it can to support the deployment of other safety 
technologies, such as ATI, that have actually been shown to work. We 
respectfully urge policymakers at all levels--on this Committee, at the 
FRA, and elsewhere--to be proactive, collaborative partners with 
railroads to meet our shared safety goals.

    Mr. Payne. Thank you.
    Now we will hear from Mr. Ferguson for 5 minutes.
    Mr. Ferguson. Good afternoon, Chairman Payne, Ranking 
Member Crawford, and members of the committee. Thank you for 
allowing me the opportunity to testify.
    I took office in October of 2019. In my first 15 months as 
president, there were 12 rail transportation worker fatalities. 
In fact, at one point, within that period, the railroad 
suffered a fatality and at least one amputation every month for 
9 months straight. Today, very little has changed for the 
better.
    Undoubtedly, the railroads will have a message of an 
industry on the mend, but please rest assured that nothing can 
be further from the truth. For the last 10 years, the railroads 
have averaged eight fatalities per year. Last year, there were 
nine. And while there may be brief lulls of those types of 
events, the data reveals a steady, consistent, and frightening 
trend.
    Currently, the rail carriers are hell bent on risking 
further injury to their employees, as well as the American 
public and supply chain infrastructure, by reducing or 
eliminating altogether the two crewmembers that control train 
movement in the cab of a locomotive. They will tell you that it 
is a matter of collective bargaining and that there is no data 
to support otherwise. I say to you, please do not be swayed.
    Safety is not nor should it ever be negotiable. I assure 
you, accidents are occurring on short lines in yard jobs that 
operate with less than a two-person crew, but the rates and/or 
trends cannot be identified because the information is not 
captured. Similarly, all Class I's over-the-road railroad 
operations are performed with no less than a two-person crew 
today, so, there is no other data to compare. In other words, 
the railroads have no idea what will happen if they reduce crew 
size, but it is a gamble they are willing to take for the sake 
of satisfying their insatiable appetite of improving their 
company's bottom line.
    What we do know from the data that we do have is that 
things are getting worse. A quick look at years 2020 through 
2021 reveal an increase in total accidents and incidents from 
8,792 to 9,192 and an increase in total employee injuries from 
2,961 to 3,054. Make no mistake, it is railroad greed that I 
believe has caused this committee to call us here today.
    As you are aware, PSR was born from the pressure put forth 
by investors and shareholders on Wall Street. Since its advent, 
dramatic haphazard cuts have decimated railroad resources. 
Approximately 33 percent of the Class I workforce was laid off 
more than a year before the first case of COVID had ever been 
identified. Locomotives were put in storage, and integral 
crafts with special skills that were relied upon to perform 
safety-critical inspections were eliminated from terminals 
across the country.
    Looking to the future, the trajectory for rail safety is 
alarming, especially if PSR continues with its status quo. 
Employees fortunate enough to have not been affected by the 
cuts are now voluntarily walking away from what was once the 
premier blue-collar job in the Nation. As a result, the 
institutional knowledge that carriers are letting walk out the 
door will threaten rail safety for another generation to come.
    Exacerbating this issue is the railroad's panic-driven 
effort to stop the PR nightmare they are currently facing for 
their majority contribution to the supply chain crisis. 
Included in this panic is the slashing of training programs for 
new hires so that the railroads can portray an improving number 
of workers, when in reality all they are actually doing is 
providing the trainees with a deficient training program and a 
foundation built for failure. This is evidenced by multiple 
amputations and crushing injuries recently occurring to newly 
promoted conductors.
    Notably, FRA accident report measurements do not reflect 
amputations. They are reported the same as most any other 
injury. This needs to change. Also, a specialized study of the 
dangers in switching operations is warranted by the NTSB. The 
NTSB has never performed one of those specialized studies on 
switching operations, and now is the time, as most fatalities 
and amputations have occurred in the performance of switching 
operations.
    Compounding troubles in the rail industry is the fact that 
train lengths are growing and so are the number of major 
derailments, each one another step closer to the inevitability 
of the big one. Also increasing are the number of blocked 
crossings, the outcry from public commuters, and the stories of 
first responders not being able to get to their destinations 
while the victims, dependent upon their timely response, 
perished on the other side of the train.
    Long trains are also making very difficult work for the 
crews. Radio communications are insufficient for the lengths of 
the trains. Conductors and engineers regularly lose the ability 
to communicate, often stranding them from a cry for help or a 
much needed train movement instruction to ensure the safest 
course. Long trains also expose our members to the elements for 
periods of time that would be unacceptable by OSHA and other 
industries but somehow are permissible in rail.
    Mr. Payne. Please wrap up.
    Mr. Ferguson. In closing, I would like to say this: I am on 
record as having said that the railroad industry is going to 
end up like Boeing. It is not just the accidents that I am 
referring to; it is the lack of oversight and concern for the 
railroad's constant capitulation to outside pressures that are 
creating the biggest dangers. I am not sounding the alarm here; 
I am screaming into the bullhorn for help. If left unchecked, 
it is my members who will end up maimed or killed, and it is 
America whose supply chain will end up collapsed.
    Thank you, Mr. Chairman. I look forward to your questions.
    [Mr. Ferguson's prepared statement follows:]

                                 
  Prepared Statement of Jeremy Ferguson, President, Sheet Metal, Air, 
              Rail, Transportation-Transportation Division
    My name is Jeremy Ferguson, and I am the President of SMART 
Transportation Division, which is the largest railroad union in the 
United States--representing almost 40,000 freight railroad employees. 
Our members work in the operating crafts of certified conductor, 
certified locomotive engineer, yardmaster, yard foreman, switchman, 
utility employee, trainman, and many others. It is with absolute pride 
and honor that I present these remarks on their behalf.
    Throughout history, freight railroading has been an inherently 
dangerous industry. In fact, since its beginning, countless men and 
women have lost their lives, suffered amputations and/or endured other 
life-altering injuries--not much has changed today. Sure, the overall 
numbers may be less, but so are the number of employees. The rates of 
fatalities are little unchanged, the amputations are still occurring, 
and workers are still becoming disabled with frightening regularity.
    A cry for rail safety has never been more needed or more 
appropriate.
    In the field amongst the rail workers, a common safety mantra is 
heard when referring to injuries and fatalities: one is too many. Last 
year it was nine (9). Nine rail workers perished while performing the 
daily tasks required of them by their Class I railroad employer, with 
dozens suffering life-altering injuries. Despite all of the technology 
and modern-day advancements--the functionality of rail equipment is 
still crude, the hours are still relentless, and the work environment 
is still unsafe. Granted, some progress was made over the years, but 
much, if not most, has been undone with the adoption of a business 
model called Precision Scheduled Railroading (PSR) which has left the 
state of railroad safety today is in shambles.
    This deterioration began during the prior administration that 
allowed railroads excessive freedom to forego safety requirements to 
achieve their PSR driven goals and to satisfy the pressures from their 
Wall Street investors. Prior to PSR, railroads were enjoying the fruits 
of the safest, most productive era in railroading history which was 
borne and brought by the two-person crew.
    PSR has led to the railroads significantly reducing service and 
reducing employment. This in turn has lessened the number of required 
inspections, as well as the quality of inspections mandated by 
regulations. To that point, there have been so many carmen inspectors 
removed that operating crews are now being forced to perform 
inspections that they are not qualified to conduct, nor are they 
equipped with the necessary tools to perform the tests.
    According to AAR equipment manuals and FRA regulations, there are 
sixty-six (66) safety points on a railroad car. Many railroads now only 
allow 1\1/2\ minutes to inspect each car. Of course, this results in 
more trains being inadequately inspected and defective cars being 
transported. Longer, heavier, trains in operation today call for more, 
not less, attention to inspections and safe equipment.
    Since 2015, there has been a 30% reduction of employees. With such 
a reduction in employment, there should have been a corresponding 
reduction in employee injuries. But that has not been the case.
    Congress has not comprehensively addressed railroad safety since 
2008. We acknowledge that Congress, in the Infrastructure Investment 
and Jobs Act, Pub. L. 117-58, addressed several issues critical to 
railroad employees. However, many safety problems continue to exist, 
and amendments are long overdue. The railroad workers have various 
proposals which are attached for your consideration that would 
significantly improve safety.\1\
---------------------------------------------------------------------------
    \1\ See Attachment A
---------------------------------------------------------------------------
                           Safety Statistics
    Railroad safety has grown worse since 2020. (See chart below).\2\
---------------------------------------------------------------------------
    \2\ Source: Table 1.12, https://safetydata.fra.dot.gov

 
                                                       2020       2021
------------------------------------------------------------------------
  Accidents/Incidents.............................      8,792      9,192
  Total Fatalities................................        746        902
  Fatalities at crossings.........................        196        237
  Collisions at crossings.........................      1,906      2,131
  Employee on duty injuries.......................      2,961      3,054
------------------------------------------------------------------------


    Derailments were reduced slightly from 1,116 to 1,073, but that is 
still unacceptable.
    A few specifics are illuminating. For example, on Norfolk Southern, 
during a 7-month period in 2021, five conductors suffered amputations 
and crushing injuries. Two of these amputations happened to newly 
marked up new hires who went through the reduced training by NS. One 
new hire rode a runaway car with no brakes for seven miles. This is a 
blatant disregard of safety and the wellbeing of their own employees. 
This is due, in part, because the NS has reduced its training program 
for operating crews from 18 weeks to 6 weeks. This not only jeopardizes 
the safety of a recently promoted conductor, but it also jeopardizes 
his or her fellow co-workers, and every community and industry they 
encounter.
    There are a number of hidden safety issues that the railroads do 
not report to the public or FRA. For example, my office has received 
thousands of complaints regarding technological failures, including 
positive train control failures. Our organization has received reports 
of 187 PTC failures alone this year. That flies in the face of the 
railroad argument that PTC is the answer to the elimination of human 
factor incidents and justification to further reduce crew size. There 
are likely more that were not reported for fear of retaliation. Also, 
FRA sponsors a voluntary confidential program allowing railroad 
carriers and their employees to report close calls. The problem is that 
no Class 1 railroad is participating. The participants in the program 
evaluate an issue and make recommendations for corrective action. 
Employees are not retaliated against for being involved in a close 
call, if he/she reports the incident. Nearly all transportation 
incidents are preceded by a chain of events, one of which might have 
prevented the accident if it had gone another way. When railroads 
analyze individual close-call events as a group, safety risks can be 
identified, and solutions developed. Close call reports can also 
provide important safety information to the FRA so that it can more 
effectively share important safety information with other carriers and 
develop safety and enforcement tools to address any widespread safety 
problems.) The airlines have a similar program called Aviation Safety 
Action Program (ASAP) which has contributed to the airlines' stellar 
safety record.\3\
---------------------------------------------------------------------------
    \3\ See Attachment B
---------------------------------------------------------------------------
    Another factor in the poor safety record is the fact that the 
railroads have not put its profits into improving safety. As pointed 
out by Mr. Martin Oberman, Chairman of the Surface Transportation 
Board, U.S. railroads have reduced service to customers, raised freight 
rates, while deriving $191 billion in dividends and stock buybacks 
since 2010. The railroads paid out $77 billion in dividends during that 
period. Recently, NS issued a $10 billion buyback of its stock. While 
the above benefits the railroads stock price, it certainly did not 
improve safety.
                    Precision Scheduled Railroading
    Precision Scheduled Railroading is a service model the Class I 
railroads have adopted, or are adopting, in an effort to streamline 
operations. They tout it as providing shippers with consistent and 
reliable service. PSR is the brainchild of Wall Street urging railroads 
to increase their stock price. Implementing PSR has helped the 
railroads lower their operating ratio which, in turn, assists investors 
determine the financial health of a company. The adverse effect of PSR 
greatly outweighs the increased profits of the railroads. The 
significant reduction is the number of employees has greatly impacted 
safe operations, increased fatigue associated with the same demanding 
work with fewer employees, less training, less inspection of cars, 
deferred maintenance, improper train make up, and potential safety 
hazards being glossed over.
    One serious safety issue arising now is that yardmasters are 
required to supervise and monitor yard movements and radio 
communications of several yards at once, and in some cases across an 
entire state. As a result, emergency radio communications are being 
missed, and improper instructions are becoming more common.
    The railroads know that they can operate with little oversight by 
FRA. The current administration is trying to improve this problem, but 
as a study by the GAO pointed out, the FRA ``. . . estimates that its 
inspectors have the ability to annually inspect less than 1 percent of 
the railroad activities covered in regulation.'' RAIL SAFETY Improved 
Human Capital Planning Could Address Emerging Safety Oversight 
Challenge, Report to Congressional Requesters, December 2013, GAO-14-
85.
    I testified at the ``Hearing on Urgent Issues in Freight Rail 
Service'' before the Surface Transportation Board on April 26, 2022, 
and pointed out the many safety problems that have occurred as the 
result of PSR. My testimony is attached.\4\
---------------------------------------------------------------------------
    \4\ See Attachment C
---------------------------------------------------------------------------
                       Needed Safety Improvements
    Attached to my testimony are the much-needed safety improvements. 
Some of these include crew size, fatigue and hours of service, close 
call reporting, train length, blocked crossings, damages against 
employees, proper train make-up, electronic controlled brakes, speed 
signs, safe handholds on tank cars, union representatives allowed on 
railroad property to inspect for safety, whistleblower, and Mexican 
trains. I will discuss some of these.
                               Crew Size
    On March 15, 2016 (81 Fed. Reg. 13918), FRA issued a Notice of 
proposed Rulemaking covering all crew size issues. On June 15, 2016 (81 
Fed. Reg. 39014), FRA noticed an oral hearing on the NPRM. The 0MB did 
not clear the regulation before the end of the Obama administration. 
Three years after the NPRM, the prior administration withdrew the 
proposed regulation. 84 Fed. Reg. 24737. In the withdrawal, the FRA 
also ruled that states were preempted from issuing such a rule. This 
was done without any prior notice to the public. On Feb. 23, 2021, the 
U.S. Court of Appeals for the Ninth Circuit ruled that the FRA decision 
to preempt the states was improper, and it vacated the regulation 
withdrawal. Transportation Division of the International Association of 
Sheet Metal, Air, Rail, and Transportation Workers; Brotherhood of 
Locomotive Engineers and Trainmen v. Federal Railroad Administration, 
988 F. 3d 1170.
    It should be noted that President Biden has publicly stated that he 
supports two-person crews on freight trains. We understand that the FRA 
is considering promulgating a crew size regulation. However, mandatory 
legislation is necessary in order to prevent a future Administration's 
attempt to repeal such regulation.
                Fatigue and Hours of Service Amendments
    Fatigue continues to be the greatest safety issue in the rail 
industry. In 2008, Congress enacted some hours of service improvements. 
See, Pub. L. 110-432, Sec. 108. However, many railroads still abuse the 
law and changes are necessary to create a safe operating environment. 
Fatigue can be significantly eliminated by requiring some hours of 
service changes. All freight service assignments without defined start 
times should have at least 10 hours prior notice calling time.
    All yardmaster assignments should be covered service under the 
freight employee's hours of service provisions. This craft typically 
works 16 hours/day. Yardmasters are safety sensitive employees, and, in 
the interests of safety, should not be forced to work excessive hours.
    All deadheads in excess of three hours should be counted as a job 
start. Numerous times, after working 12 hours, crews have been required 
to wait for, and/or be in, deadhead service, for more than 8 hours. 
This creates a serious fatigue issue. Also, as noted in the STB 
hearing, it is common for crews to layover between 20 and 30 hours at 
their away-from-home terminal. Many crews have been forced to remain at 
the away from home terminals for multiple days, and the railroads 
treated the stays as mandatory rest days. This is another issue of 
abuse by railroads. No amount of time off duty at the away from home 
terminal should reset the calendar clock of job starts, and the 
employee should not be required to take mandatory rest days at the away 
from home terminal.
    Employees who work road service pools and extra boards are 
requiredto be available 24 hours a day, seven days a week for a call 
for duty with only one and a half to two hours' notice. Obviously, many 
times, the employee must go to work fatigued, creating a major safety 
issue. A response from a UP manager to an employee's complaint stated 
``Please plan to be called anytime. Thanks.'' (Ex. 8 to BLET testimony 
at STB hearing). It should not be forgotten that many trains transport 
hazardous materials, including chlorine gas, anhydrous ammonia, 
propane, etc. One full tank car can weigh 131 tons. Obviously, only 
alert employees should operate such trains.
    Current practice by many railroads is not informing an employee how 
long an interim rest period will be. The result is that the employees 
are unable to obtain reasonable rest. Interim release periods should 
require railroads to notify the crew before going off-duty. If the crew 
is not notified, the 10 hours uninterrupted rest should apply.
    Another major problem is lack of nutritious food for employees at 
their away from home terminal. Having hot nutritious food available for 
railroad employees has been a serious problem for a number of years 
because of FRA failing to enforce the current statutory requirement. 
For example, the FRA has allowed the railroads to provide canned, 
prepackaged, and frozen fast foods to be in compliance with the 
requirement for ``suitable food''. See, April 29, 1991, FRA 
interpretations of Hours of Service law. A railroad should be required 
to provide hot nutritious food 24 hours a day at the sleeping quarters 
for a particular crew at the away from home designated terminal, and at 
a release location which is available for rest for a particular crew. 
If such food is not provided on a railroad's premises, a restaurant 
which provides such food should not be located more than 5 minutes 
normal walking distance from the employee's sleeping quarters or other 
rest facility. Fast food establishments should not satisfy the 
requirements of this subsection.
    Last, but not least, is the practice by some of the major carriers, 
such as BNSF and CN, to impose draconian attendance policies. Attached 
is the BNSF Policy and Q&A.\5\ As you can observe, it severely limits 
the ability of employees to being able to mark off duty for such things 
as medical issues and family emergencies. For example BNSF's most 
recent absenteeism policy known as ``Hi-Viz,'' which was unilaterally 
imposed upon its employees on February 1, 2022. The policy only allows 
for a worker to have one day off a month and penalizes them for sick 
time or for needing to take care of their family when a medical 
emergency arises. It also assesses discipline, or, at the very least, 
disincentivizes our members from utilizing family medical leave and 
receiving necessary rest. The employees are not even allowed to take 
time off for FRA required hearing and vision certification 
requirements. As a result of the PSR, employees are forced to decide 
between rest or spending time with their family. Members must go to 
work fatigued because railroads afford them no other option--work or be 
fired.
---------------------------------------------------------------------------
    \5\ See Attachment D & D-1
---------------------------------------------------------------------------
                   Long Trains and Blocked Crossings
    One of the features of PSR is that many trains now exceed miles in 
length and transport hazardous materials. As shown at the STB hearing, 
on CSXT during the 1st Quarter of 2022, a train departing South 
Schenectady, NY totaled 24,138 feet. A number of the railroad's trains 
exceeded 20,000 feet. This is typical throughout Class 1 railroads and 
creates many safety problems, mechanical and logistical, such as the 
inability to maintain adequate brake pipe pressure, which is needed so 
a train can safely slow and stop. As trains lengthen, incidences of 
them breaking apart are far more frequent, and a crewmember cannot 
observe and monitor an entire two-mile-long train by looking out of the 
window. Long trains create more air brake problems (especially in cold 
weather), sticking brakes, flat wheels, more slack action, and couplers 
and drawbar limits being exceeded, less track time for maintenance, 
etc. Also, when a conductor is required to walk a long train, many 
times on uneven terrain and during all weather conditions, the portable 
radios often times lose contact with the engineer in the lead 
locomotive. A train's two-way telemetry device and distributive 
locomotives lose contact with the lead locomotive. One such incident 
caused a runaway train on the Union Pacific in October 2018 killing two 
crewmembers. The track was PTC active at the time. We have daily 
reports of loss of communications and it's a wonder that we have not 
had more catastrophic events as a result.
    When a train is too long, and there is a loss of communication with 
the rear of the train, the locomotive engineer cannot activate the 
brakes at the rear of the train. Most importantly, when a long train 
becomes disabled where it blocks a crossing, it is far more difficult 
to uncouple the train to open crossings. On April 25, 2017, the 
National Legislative Director of SMART-TD wrote to the Administrator of 
the FRA, expressing specific safety concerns about railroads operating 
excessively long trains. He sought an emergency order to limit the 
length of trains. FRA responded on March 7, 2018, that the railroads 
are operating the longer trains ``in an attempt to enhance service 
delivery and operational efficiencies.'' The response by FRA did not 
acknowledge the safety problems inherent in such operations. On May 21, 
2021, Grady Cothen, a former Associate Administrator for Safety at FRA, 
gave a presentation at the Transportation Research Board Annual Meeting 
on the serious safety problems inherent in operations of long trains. 
His document is entitled ``Management of In-Train Forces: Challenges 
and Directions''. FRA has not taken any affirmative action as a result 
of the presentation. Congress must step in and mandate that the length 
of trains be limited.
    An obvious problem with long trains is that in many instances 
railroad crossings are blocked for long periods of time. This is a 
major safety concern for emergency vehicles. Congress should prevent 
railroads from blocking crossings after a certain length of time. Some 
courts have ruled that states do not have authority to regulate this 
issue. See, CSX Transportation, Inc. v. City of Plymouth, 283 F. 3d 812 
(6th Cir. 2002). Crossings blocked by extra-long trains present more 
than a simple inconvenience to drivers. They present legitimate dangers 
to the lives of the public by potentially obstructing emergency vehicle 
traffic, which then may have to go miles out of their way, especially 
in rural areas, to respond to a fire, accident or medical crisis. 
Relating to train length, the FRA has acknowledged that blocked 
crossings is one of the largest complaints received from congressional 
members. This can easily be corrected by requiring that the train crew 
promptly make a separation of the train after a short time period. In 
addition, having a Conductor on the train is necessary to be able to do 
this in a timely manner.
    Another reason for the blocked crossings is that railroad sidings, 
nor yards, were ever constructed to accommodate these huge trains. As a 
result, trains must remain on the main tracks for long periods, many 
times blocking crossings.
    We acknowledge that Congress, in the Infrastructure Investment and 
Jobs Act, requires the FRA to establish s blocked crossing portal to 
collect information regarding the cause of blocked crossing. (Sec. 
22404). Everyone in the industry already knows the cause--it is long 
trains. Congress needs to substantively address this problem now.
                         Improper train make-up
    For many years, improper distribution of loaded and empty freight 
cars (i.e., when a railroad attaches empty cars in the front of a 
consist and loaded cars on the rear) has caused countless derailments. 
In-train forces from the rear cause unsafe train handling and result in 
derailments when a train slows. These forces break equipment, cause 
rails to turn over or cause cars to climb the rails. Heavier freight 
cars and longer trains create more of these forces.
    Over the years, too many derailments could have been prevented by 
proper train make-up. The CSX derailment in Hyndman, PA, on August 2, 
2017, is a good example. There, 33 cars derailed, including 3 hazardous 
materials cars which erupted, resulting in a fire. There were 128 
loaded cars and 50 empty cars in the train. The NTSB issued a report of 
the accident, stating that one of the probable causes was ``the 
placement of blocks of empty rail cars at the front of the train 
consist.'' (NTSB Acc. Rep. NTSB/RAR-20/04, pgs. vii and 29). The Board 
pointed out that 90 % of the train's total tonnage was behind the lead 
42 cars, resulting in excessive longitudinal and lateral forces exerted 
on the empty cars.
    In 1994, Congress required the Secretary to study existing 
practices regarding the placement of cars on trains, with particular 
attention to the placement of cars that carry hazardous materials, and 
the FRA concluded that no new regulations were needed. We believe that 
conclusion is outdated, particularly with the current use of longer 
trains. The quality of train make-up has deteriorated with the advent 
of longer trains. The Association of American Railroads has a Train 
Make-Up Manual, which provides guidelines on train make-up. These are 
not enforceable and are violated constantly. Congress should address 
this issue by requiring FRA to promulgate regulations mandating proper 
train make-up.
            Damages lawsuits by railroads against employees
    The Federal Employers' Liability Act was enacted in 1908, which 
allows injured rail workers to file claims when railroads are 
negligent. Not until recent years did the railroads began filing 
lawsuits against employees for damages to railroad equipment. Some 
courts have ruled that a railroad could seek damages against an 
employee arising out of an accident. See Norfolk Southern Rwy. Co. v. 
Tobergete and Hall, Civil Action No. 5:18-207-KKC (E.D. KY). In this 
case, the railroad is sought $3,770,420.65. In another decision, Ammons 
v. Wisconsin Central, LTD, 124 N.E. 3d 1(S. Ct. Ill. 2019), cert. 
denied, Oct. 5, 2020, the appellate court upheld a lower court decision 
that a railroad could seek property damages against an employee arising 
out of an accident in Joliet, Illinois. In this Illinois case, the 
railroad contends that it sustained property damages in excess of one 
million dollars as a result of the collision. The case has been 
remanded back to the Illinois circuit court for discovery and 
preparation for trial.
    There are only a handful of other cases relating to the same issue. 
See Nordgren v. Burlington Northern RR, 101 F. 3d 1246 (8th Cir. 1996); 
Schendel v. Duluth, Missabe, et. al., RR, 2014 WL 5365131 (MN. Dist. 
Ct.) (RR seeking $2 million); Mancini v. CSX Transp., Inc., 2010 U.S. 
Dist. LEXIS 75724 (N.D. N.Y. 2010); Norfolk Southern Rwy. v. Paul 
Murphy, et. al., 3-03-cv-665 (N.D. Ind. 2003); Kansas City Southern RR. 
v. Morgan, No. 94-5016-cv-sw-8(W.D. MO. 1994); See also Michael Beethe, 
Railroads Suing Injured Employees: Should the Federal Employers' 
Liability Act Allow Railroads To Recover From Injured Railroad Workers 
For Property Damages?, University of Missouri-Kansas City L. Rev. 232 
(Winter 1996).
    If allowed to continue, the vast majority of railroad accidents 
will create a serious financial burden on railroad employees and their 
families and which will result in numerous bankruptcies. It is common 
knowledge that potential property damages in a train accident can be 
enormous, resulting in millions of dollars. When compared to the amount 
of reportable property damages in railroad accidents, the only valid 
conclusion is that a railroad will not be able to recover damages from 
its employees. Because there is no realistic opportunity for a railroad 
to recover such property damages, a railroad's only intent for seeking 
such recovery is to thwart an injury claim by the employee.
                     Recent Supreme Court Decision
    On April 28, 2022, the Supreme Court, in a 4-4 decision, upheld a 
decision of the U.S. Court of Appeals for the 7th Circuit, which held 
that a locomotive was not ``in use'' under the Locomotive Inspection 
Act (``LIA''). 49 U.S.C. Sec. 20701. There was no written opinion by 
the Supreme Court. Justice Barrett took no part in the consideration or 
decision of this case because she authored the opinion in the court of 
appeals. The case is entitled LeDure v. Union Pacific RR. The 7th 
Circuit decision is located at 962 F. 3d 907 (7th Cir. 2020). The 
effect of the ruling is that, going forward, there will be numerous 
expensive litigation nationwide attempting to determine if the Supreme 
Court's decision prohibits application of the LIA.
    In the LeDure case, the conductor, who brought the FELA case, was 
preparing a group of locomotives for departure, and he slipped and fell 
while walking along the locomotive walkway. The lower court held that 
because the locomotive was stationary, was on a side track, and was 
part of a train still needing to be assembled, it was not in use at the 
time of the fall. The court of appeals upheld the lower court's 
reasoning and decision.
    Evidence demonstrates that a greater number of employees are 
injured on locomotives not moving, than on moving locomotives. It 
should not matter if a locomotive is moving or not. Any employee 
injured while working on a locomotive should be protected to the same 
extend as if he/she is injured while the locomotive is moving. 
Statistics compiled by FRA from railroads' reporting show that between 
CY 2015-2021, there were 1,660 injuries to employees in a locomotive 
standing in the cab or walkways, and during the same period there were 
388 injuries while a locomotive was moving. See, https://
safetydata.fra.dot.gov/OfficeofSafety/publicsite/Query/castally1.aspx. 
(Table 2.04) Operating crews do more than transport freight across the 
country. Much work is required prior to any movement. Many crews are 
assigned to build trains in hundreds of rail yards throughout the 
country. They board an alight locomotives and rail cars constantly in 
the yards and are exposed daily to the hazards which the FRA has 
addressed in the safety regulations.
    Congress can put an end to the great expense litigating this issue 
by eliminating the ``in use'' requirement under the LIA.
                   Time requirements imposed upon FRA
    Based upon a 2021 court of appeals decision, mandatory time limits 
Congress has placed upon FRA has limited validity. In SMART-TD and BLET 
v. FRA, the U.S. Court of Appeals for the District of Columbia Circuit, 
citing a Supreme Court decision, ruled that ``If a statute does not 
specify the consequence for noncompliance with a statutory timing 
provision, the federal courts will not in the ordinary course impose 
their own coercive sanction.'' 10 F. 4th 869, 874 (Aug. 20, 2021).
    Congress, among other requirements, mandated that FRA promulgate a 
risk reduction program, including a fatigue management requirement. 49 
U.S.C. Sec. 20156. Congress requires that FRA must finalize a 
regulation within 12 months of the notice of proposed rulemaking. 49 
U.S.C. 20103(b). In the above case, the final rule was promulgated nine 
years after the advance notice of proposed rulemaking was issued and 
five years after the notice of proposed rulemaking was issued. That 
clearly violated the congressional mandate, but the court, 
nevertheless, upheld the regulation. The FRA still has not promulgated 
a final Fatigue Management regulation.
    Congress needs to insert a consequence for noncompliance with 49 
U.S.C. 20103(b).
    There are a number of other needed safety amendments, which are 
attached to our testimony. We urge you to address each of these issues.
    We thank you for your consideration.

                                                        Attachments
    [The attachments referenced in Mr. Ferguson's prepared statement 
are retained in committee files and are available online at:
https://docs.house.gov/meetings/PW/PW14/20220614/114882/HHRG-117-PW14-
Wstate-FergusonJ-20220614-SD001.pdf ]

    Mr. Payne. Thank you very much.
    We will now move on to Member questions. Each Member will 
be recognized for 5 minutes, and I will start by recognizing 
myself.
    Mr. Morrison, have your members identified defects that 
were missed by automated track inspection technology inspecting 
the same track, and can you share an example?
    Mr. Morrison. Thank you, Mr. Chairman, for the question. 
Yes, my members have identified multiple defects that were 
missed by the track geometry measurement technology. Several 
examples exist, and I could get your office a list later. But I 
have examples of broken rails, stripped joints where the joints 
rip completely out, and it is the discontinuance in the rail 
just like a broken [inaudible], tie defects, crossings where 
the train was coming in contact with the crossing. We provided 
several examples in our lawsuit with BNSF in 2018, and I can 
provide you as many more as you want.
    Mr. Payne. Thank you.
    Mr. Grissom, what are the effects of allowing carmen only 
one-third of the usual time to inspect railcars?
    Mr. Grissom. Employees are pressured to rush the 
inspection, and they are not doing a proper inspection on the 
cars or repairs. When you inspect it, you might have to change 
a brake shoe or go underneath, check the side bearing clearance 
or clearance on the center plate, and this isn't being allowed 
because with the pressure from management to get the cars out, 
to get the train out to keep everything on schedule, there is 
not enough time or employees allowed to properly inspect the 
freight trains.
    Mr. Payne. Mr. Ferguson, what are the safety reasons that 
two-person crews are the industry standard on Class I freight 
trains?
    Mr. Ferguson. Well, thank you for the question, sir. The 
safety reasons are endless. Two sets of eyes in the cab of the 
locomotive is paramount for the safety of our communities that 
we operate under. It keeps the trains moving, which helps our 
supply chain. And, of course, it keeps fellow employees safe at 
all given times.
    Mr. Payne. Thank you.
    With that, I will yield back and recognize the ranking 
member.
    Mr. Crawford. Thank you, Mr. Chairman.
    I want to direct this question to Mr. Bachman. How has 
automated track inspection technology improved freight rail 
safety, and how can it be used to help not only in basic safety 
inspections, but also in potentially identifying security 
threats to our freight rail network?
    Mr. Bachman. Thank you, Congressman, for the question. 
Where automated track inspection has benefited the industry, 
specifically in our case, over the last decade-plus, we have 
been able to collect copious amounts of data over nearly 
500,000 miles worth of track. And it is the collection of this 
data and really understanding what the conditions are on the 
ground that have allowed us to provide metrics to our 
customers, the railroads, where they can go out and identify 
specific areas that need the greatest amount of attention and 
allocate their resources to address those areas that have the 
most pressing needs.
    In terms of the overall safety of the railroads, we are of 
the mind that by going out and collecting track and identifying 
tie condition, really across the country, we have been able to 
get a better understanding of overall tie condition, how ties 
exist in different environments, and that has really allowed 
the railroads the opportunity to plan better, to plan smarter, 
and produce an overall greater quality product.
    Mr. Crawford. Thank you. I appreciate the response.
    And, Mr. Chairman, I will yield back.
    Mr. Payne. The gentleman yields back.
    And now we will have Mr. Moulton from Massachusetts for 5 
minutes.
    Mr. Moulton. Thank you, Mr. Chairman.
    Now, after reading all of your testimonies from four of 
you, Mr. Morrison, Mr. Grissom, Mr. Ferguson, and Mr. Cothen, 
gentlemen, all of you directly called out PSR, Precision 
Scheduled Railroading, for its deleterious effects on service 
and drastic cuts to vital personnel. I mean, there is not a 
single piece of testimony that notes any benefit to PSR 
whatsoever, which for all intents and purposes, appears to 
strictly benefit the Wall Street shareholders whose pockets are 
being padded by this change.
    So, for all of you, how have we assembled a panel of 
industry experts here today and not a single one of you stands 
by arguably the biggest labor and financial decision 
implemented in freight rail in the past quarter century? How 
did we end up here? How did we end up here, and how do we get 
out of this mess and return to a functional system that 
prioritizes service capacity and safety and actually grows 
volume, actually has customers saying, I want to switch from 
truck to rail, because not only is it better for the rest of 
America to get these trucks off the highway, but the railways 
are actually offering better service? How do we get there?
    Ms. Sanborn. Congressman Moulton, thank you for the 
question. I will start. This is Cindy Sanborn from Norfolk 
Southern, and I represent AAR as well.
    I have to tell you that, in my mind, PSR is a catchphrase 
for things people don't like about what is going on in the 
railroad. I have to tell you that, at Norfolk Southern, we 
implemented the basic principles of PSR in 2019, and those 
basic principles are about turning assets, turning railcars, 
and not switching them as many places if we don't need to to 
benefit our customers.
    And, as we implemented it in 2019, we actually saw our 
service being extremely strong, some of the best we have had in 
many, many years. And what we found was, if we weren't 
switching cars as many places, and we had the technology of 
distributed power and more technology on our locomotives than 
we have had in years, upgrades to the capability of the track 
[inaudible] of locomotives that allowed us to build longer 
trains, and those two things together allowed us to not need as 
many people to operate, whether it was traincrews or, in fact, 
we shed about 400 locomotives at Norfolk Southern, so, we 
didn't need as many people to work on locomotives.
    And then we hit a pandemic. And going into the pandemic we 
saw complete industries--think about the automobile industry 
that went completely to no production whatsoever. We served 
that both on the outbound side of finished automobiles and the 
inbound side on metals and plastics going into making those 
automobiles. And so, then we furloughed as a result of that 
change in demand.
    And as we have come out of the pandemic, as we all know, 
the labor market has changed substantially in terms of the 
amount of people looking for work versus the number of jobs 
that are needed. And as I mentioned, our employees got us 
through the pandemic, and they have worked tirelessly and very, 
very diligently. And we are hiring very aggressively to help 
solve these service issues because we want to grow our 
business.
    Mr. Moulton. Ms. Sanborn, look, employees have a tough job. 
I have worked on a railroad track before. It is technical work. 
It is often backbreaking work. They need to know the details of 
that job, and yet, the STB issued an order criticizing Norfolk 
Southern for a disturbing lack of detail about your plans to 
improve service, including how many people NS will hire and how 
you will do it.
    I mean, these are obviously challenges, I get it. You are 
facing challenges. But your employees are doing great work. 
They are putting it in every day. How come you can't even come 
up with a detailed plan for how you are going to fix this 
problem?
    Ms. Sanborn. Our discussions, our information we provided 
to the STB was around our hiring plans, and if you look at our 
geography, we have 95 hiring locations. If we gave a total 
number of how many people we wanted to hire, if we didn't have 
them in the right physical locations, in other words, you could 
hit that target number but still not have the right people 
spread across the different locations, we still wouldn't see 
service improve.
    So, trying to answer the question is extremely difficult, 
but rest assured, we have substantial plans and are recruiting 
very, very diligently. Some locations we are hiring where we 
have very little difficulty sourcing employees, and some places 
the job market is extremely, extremely tight, and we are having 
trouble----
    Mr. Moulton [interrupting]. What are you doing--what are 
you doing to address derailments and the fact that these long 
trains break in two much more frequently than shorter trains 
and the fact that you don't even have sidings to hold these 
long trains; the yards can't handle them? So, cars will wait 
for days just waiting for a long train because you don't have 
the locomotives, you don't have the personnel to operate these 
trains. And then you finally get that train over the road, it 
breaks in half, and when you finally get it back together and 
get it to a yard, the yard can't even receive it.
    Ms. Sanborn. Well, thanks for your----
    Mr. Moulton [interrupting]. I mean, tell me that is not a 
mess.
    Ms. Sanborn. Thanks for your question. In the limited time 
here and in the sake of brevity, I will tell you that, if we 
had to run more trains, we would need even more people than we 
need today. And running longer trains is allowing us to more 
efficiently move what we can move and safely. I do not think 
the evidence supports that longer trains drive derailments.
    Mr. Moulton. Well, I would like to look into that further. 
Mr. Chairman, I hope we can examine that last question further 
because I think the exact opposite, that we are seeing more 
derailments, more train breaks because they are so long. Thank 
you, Mr. Chairman.
    Ms. Sanborn. I will be glad to communicate specifically 
with you about that if you have specific questions.
    Mr. Payne. Thank you. And I concur----
    Mr. Moulton [interrupting]. Great. Thank you.
    Mr. Payne. I concur with the gentleman from Massachusetts.
    Next we will hear from Mr. Garcia of Illinois.
    Mr. Garcia of Illinois. Thank you, Mr. Chairman.
    A question for Mr. Grissom. How seriously do you think that 
railroads take fatigue as a safety issue, and how do you think 
the FRA's new fatigue rule would change things?
    Mr. Grissom. Well, the first part of your question there, 
the railroads are not--I don't believe have taken fatigue at 
all seriously. Let me give you an example. On CSX, we have a 
form called PI-82, where the employees can report an unsafe 
condition. Our members were turning in these PI-82s when they 
are forced to work 16 hours or even beyond 16 hours. They were 
telling their managers they were fatigued. They can't even stay 
awake. They can't perform their job safely.
    And the managers refused to accept these PI-82s, unsafe 
condition forms. They clearly stated that these are not a 
safety concern. This is not part of their safety program. And 
this is what they are continuously telling our members. This 
just happened on Monday right when the fatigue report came out, 
and I can tell you, CSX, for one carrier is not taking it 
seriously. The only thing that gets their attention is if it 
affects their profit. If you hit them in their pocketbook, that 
is what they take seriously. Thank you.
    Mr. Garcia of Illinois. Thank you. Thank you, sir.
    A question for Mr. Ferguson. You mentioned in your 
testimony that radio communication failures are regularly 
occurring because of the growing lengths of trains. Can you 
expand on that and also address the real-life issues that this 
creates for a conductor and an engineer. And also, what would 
happen if this would occur while the train was blocking a 
crossing and a crew was unable to communicate?
    Mr. Ferguson. Yes, Mr. Congressman. Thank you. That is an 
excellent question. And it happens every day out here across 
all the Class I railroads that are dealing with extremely long 
trains. For instance, I just got a report a few minutes ago, 
there is a train operating across the State of Missouri that is 
just over 21,000 feet long. So, that is three of our typical 
trains, let's just say three times 7,000, right.
    So, when you are trying to put that train together or you 
have a crossing that you have to cut, and that means separate 
the railroad cars that are blocking the highway-grade crossing, 
the conductor has to communicate with the head-end where the 
engineer is to move the cars and the train back and forth to 
get everything situated.
    And the radios that we are carrying as train men as 
conductors can't stretch over 2 miles in most instances, and 
some even less depending on what the weather and the other 
atmospheric conditions are, so that creates a very unsafe 
condition. And, if you get the equipment moving and then you 
need to stop it suddenly, you can't get that message relayed to 
the head-end.
    If you are in a yard operation, management will tell our 
crews to have somebody relay it, have a yardmaster relay it. 
Everybody is too busy. There is too much radio chatter going 
on. There are too many other things that are interfering with 
the safe operation of that specific move, and it can become 
very catastrophic very quickly, especially if the train is 3 to 
4 miles long. That is insanity. So, it jeopardizes not only our 
safety but the communities that we have to operate through and 
when we are stopped and we have to separate equipment across 
grade crossings.
    Mr. Garcia of Illinois. OK. Thank you.
    And just a rapid-fire question to Mr. Grissom, Mr. 
Ferguson, and Mr. Morrison, each of you mentioned the important 
outstanding safety issues that need to be addressed by the FRA. 
What is something that the FRA can do to address a concern you 
raised in your testimony? And real brief, please.
    Mr. Morrison. Thank you, Congressman. I would like to 
start, if it is possible. As we said, I would say the biggest 
thing that FRA could do is start enforcing the regulations on 
manager disqualification for knowingly violating whistleblower 
protections. We have been asking the FRA to look at those 
regulations and implement them in an industry that is known for 
its retaliatory behavior and making it hard on workers.
    Mr. Garcia of Illinois. Thank you. Anyone else? Because my 
time is almost up.
    Mr. Grissom. Yes, I would like to add just to have the FRA 
show up more, enforce the regulations, and don't tip off 
management before they come on the property so they get a true 
picture of what is the day-to-day operation.
    Mr. Garcia of Illinois. OK. Thank you, sir. And I think my 
time is up, so, Mr. Chair, I yield back.
    Mr. Payne. Thank you. The gentleman's time has expired.
    Now we will have the gentlelady from California, Mrs. 
Napolitano, for 5 minutes.
    Mrs. Napolitano. Thank you, Mr. Chair. I agree with the 
comments from my colleagues on the length of the trains because 
that is one issue that I have had long in my area.
    But, Ms. Sanborn, I have been long concerned about grade 
crossing safety and blocked crossings. The statement from the 
Association of State Railroad Safety Managers describes the 
harmful safety impact of blocked crossings. But they also say 
some railroads are requiring local municipalities to pay 
maintenance fees for various grade crossing improvement 
projects resulting in delay, canceling, or scaling back a 
project intended to enhance grade crossing safety.
    These maintenance fees have long been paid for by the 
railroads, but now, shortly after Congress made available 
billions in grants to support grade crossing improvement 
projects, railroads are trying to pass the buck. We should be 
working together to improve the grade crossing safety, not 
creating more obstacles. And why are the railroads now having 
governments pay for these maintenance fees, and can your 
company and AAR look into this and please reverse the trend?
    Ms. Sanborn. I am sorry, I could not quite understand what 
you were saying. If somebody else did, I am happy to hear them. 
Help me understand better what you just asked me. I just 
couldn't hear you.
    Mrs. Napolitano. Well, it has to do with the rail crossings 
and the grade crossing improvements. Prior to this, the 
railroads took care of the maintenance fees, and now they are 
asking the communities to pay for it but shortly after Congress 
made available billions in grants to support them. And why are 
the railroads now having governments pay for these maintenance 
fees, and can your company and AAR look into it and please 
reverse the trend?
    Ms. Sanborn. Yes. So, as far as road crossing maintenance 
fees, we pay for the operation of the crossing once it is 
installed. And, if there is some specific questions that you 
have, Congresswoman Napolitano, I will be happy to look 
further. I am not that conversant on the issue that you are 
bringing up specifically, but we will get back to you with an 
answer.
    Mrs. Napolitano. Well, this certainly is a problem. And I 
agree with my colleagues' comments that the railroads are 
making profits for Wall Street, and the communities are 
suffering. And we need to be sure that we back the employees 
because they--and as far as the whistleblowers are concerned, 
maybe we should make more availability to them to tell us what 
is going wrong so we can take action.
    And I know that the railroads have autonomy over much of 
what happens on the land, but it is important that we provide 
more safety for the employees. I know, in my area, there are 
many employees of the railroad, and sometimes they come to me 
with some of the issues that they feel are important for their 
safety, but we don't have enough input to be able to take 
action on it.
    Ms. Sanborn. To your point, I would agree that and involve 
myself in listening to employees. In fact, in the last 30 days, 
I have been in Roanoke, Virginia; Cincinnati, Ohio; Pittsburgh, 
Pennsylvania; and I will be in the yard in Atlanta here on 
Thursday and listening to our employees and what they have to 
say around safety and concerns that they have.
    I think that there is general frustration that they would 
like to see the railroad operate better. They feel better when 
the railroad operates better. And we absolutely want to do 
that, both from a safety perspective and serving our customers 
as well.
    I would also say that part of the solution is hiring, and 
we are very aggressively hiring and need our existing employees 
that are working the jobs today to help train new employees. 
And this is across all crafts. This is not just T&E.
    And to your point around crossings and paying for things, I 
would like to make this point: we compete across many, many 
areas. We compete in service. There are alternatives to using 
our service. We compete in terms of cost to be able to be the 
most efficient, effective as we can so we can charge a 
reasonable price for our service. And we compete from a 
standpoint of capital markets and having access to those 
capital markets by having shareholders buy our stock.
    So, all three areas are very important areas for us to be 
effective and efficient and serve our customers with the 
overall umbrella constantly being safety. And we want to grow 
our business. We feel that we are very climate friendly. We 
know we are very climate friendly. We offer our customers an 
opportunity to reduce their carbon footprint, and only can we 
do that if we are able to provide a very, very good service. 
And it takes our employees to do that; if it weren't for them, 
we would not have a business. So, I think we are aligned in 
many, many areas. I think frustrations might exist as well, but 
thank you for your questions.
    Mrs. Napolitano. I would like to be able to connect with 
you later, because there are many other points that I would 
like to bring forward.
    Thank you, Mr. Chair. I yield back.
    Mr. Payne. The gentlelady yields back.
    We will now have the gentleman from Georgia, Mr. Johnson, 
for 5 minutes.
    Mr. Johnson of Georgia. Thank you again, Mr. Chairman, for 
having this hearing, and I thank the second panel of witnesses 
for your testimony today.
    Workforce cuts by Class I railroads have decimated their 
workforces by one-third of their size since 2015, and what is 
especially shocking is that this cutting of the labor force 
predates the pandemic. To date, rail companies have failed to 
rehire previously furloughed workers, leading to labor 
shortages on many rail lines.
    Mr. Grissom and Mr. Morrison, do you think harsh and unduly 
challenging working conditions play a role in workers deciding 
not to return to the workforce, such as forced overtime, 
heavier workloads, and management pressure to circumvent 
safety?
    Mr. Grissom. Yes. Thank you for the question. And you are 
correct; we saw this problem before the pandemic, and one of 
the issues is the railroads. They will furlough somebody. They 
will be furloughed for a year or two, call them back. They may 
work another year or two and then get laid off again. And 
people are just sick and tired of being a part-time employee, 
and they are just in a dilemma during the part of the furlough.
    And so, you are right about the conditions and the 
intimidation and not being respected as an employee at work. 
This is what we are hearing from our members. And we are seeing 
employees with 20, 25 years into the rail retirement system, 
and we have got a unique rail retirement system where you can 
have 30 years at age 60 and fully retire, and we are seeing 
people with 20, 25 years of service walking off the job and----
    Mr. Johnson of Georgia [interrupting]. And they are not 
coming back because of the work conditions that are in 
existence at this time. Isn't that correct?
    Mr. Grissom. Yes. It is just they don't feel safe at work. 
They just don't feel like they are taking safety seriously.
    Mr. Johnson of Georgia. OK. Thank you.
    Mr. Grissom. Thank you.
    Mr. Johnson of Georgia. All right. And, Mr. Morrison, what 
do you think about it?
    Mr. Morrison. Yes, thank you for the question, Congressman. 
This is a great topic. Yes, the conditions our members are 
being forced to work in right now are just catastrophic. And a 
lot of them--yes, the work is hard and, yes, it is taxing on 
our members and it is taking physical tolls, but also our 
members are very professional in what they do.
    And we have members also walking away from the industry 
because of what they see this automated track inspection is 
doing. They don't feel safe as a track inspector, and they 
don't feel that the railroads are making that--giving them the 
tools that they need to keep that railroad track safe. So----
    Mr. Johnson of Georgia [interrupting]. Well, let me ask you 
this question: What types of changes to working conditions 
would be needed to encourage workers to remain on the job or 
return to the job?
    Mr. Morrison. So, for the maintenance-of-way employees, 
yes, hiring and getting more people out there is absolutely 
critical. Now, the railroads don't value their employees like 
they say they do. We are in negotiations right now, and they 
are not really keeping the industry as good of a job as it used 
to be, and it is a highly hostile workforce. It is the only 
industry I know of where our members actually purchase 
insurance for when they get fired to help get them through the 
process of going through the investigation and try to get back, 
which might take up to 2 years.
    Mr. Johnson of Georgia. Yes. Let me ask this question, Ms. 
Sanborn. In recent years, trains have been growing consistently 
longer with lengths now reaching more than 3 miles. What 
factors, Ms. Sanborn, are evaluated when determining how long a 
train should be, and would you agree that the decisionmaking 
process is primarily driven by cost factors rather than safety?
    Ms. Sanborn. I will tell you that our decisions around 
train size and how we plan for that are created on needs of 
service for our customers and how can we move that freight most 
efficiently. And train size does play a factor in it, and 
anytime we operate a train of a different type or longer train 
on a geography that we haven't before, we do simulations to 
ensure that it can be done safely.
    Mr. Johnson of Georgia. Well, you are trying to get as much 
money as you can out of each shipment, and so that is why train 
lengths have gotten longer. Isn't that correct?
    Ms. Sanborn. It is like I mentioned before, just real 
briefly, we compete in service. We compete in cost to make an 
effective service to be able to charge a decent price. So, 
there are a number of reasons that we get the benefits of 
longer trains and can then handle more business because we 
compete more effectively in that way.
    Mr. Johnson of Georgia. Thank you. I yield back.
    Mr. Payne. The gentleman's time has expired.
    We will next hear from the gentleman from Massachusetts, 
Mr. Auchincloss, for 5 minutes.
    Mr. Auchincloss. Thank you, Chairman.
    As we begin to inject billions into our Nation's 
infrastructure, including, of course, rail, no project will be 
able to get off the ground without a workforce. Railroading is 
a 24/7 operation, frequently requiring odd working hours and 
unpredictable schedules.
    The average total number of workers employed by the Class I 
railroads at the end of 2021 was nearly one-third less than the 
total employed in 2015, according to data reported by the 
railroads and published by the Surface Transportation Board.
    For both Mr. Ferguson and Mr. Grissom, you have testified 
that workers are leaving the industry because of worsening 
conditions on the job. As workers leave the railroads and 
aren't being replaced by new hires, what effect is that having 
on the workload for the people still there?
    And, Mr. Ferguson, you can begin.
    Mr. Ferguson. Yes, Mr. Congressman. Thank you.
    What it is doing to the existing workforce is basically 
unbearable. They put forth these draconian attendance policies. 
They want more out of the workforce they have today, and it is 
making their family life, their work life, every part of it 
unbearable because they are so short-handed.
    If you are home, if you are fortunate enough to get time 
with your family, the phone is constantly ringing once you 
become rested under the hours of service. They don't have 
enough people to adequately staff the other trains that you are 
technically not responsible for, so, they are going to 
constantly ring your phone. That may be in the middle of the 
night while you are trying to get sleep for when you are going 
to work on your regular scheduled job.
    Mr. Auchincloss. And then jumping in there, for Mr. 
Grissom, to that point, are workers being expected to take on 
more shifts and potentially work while fatigued or in unsafe 
conditions?
    Mr. Grissom. Yes, they're required to stay over. So, we 
normally--like you said, we are 24/7, three shifts, first, 
second, third shift. So, if you are working second shift from 3 
o'clock to 11 o'clock, you are thinking you are going to get 
off at 11 o'clock tonight. But if there is not enough people 
for third shift, you are going to be forced. It is a 
requirement. You are going to stay over and perform another 
shift. So, you are going to be there 16 hours.
    And when you get there, you don't know if you are going to 
work 8 hours or 16 hours or 24 hours or when you are going to 
get home. And you don't know how to pack a lunch, because you 
can't leave the property to go through the McDonald's drive-
through. You are stuck on that property with no food. That is 
another issue we have.
    Mr. Auchincloss. Understood.
    And switching gears to Mr. Cothen. Your testimony describes 
a regression in the management of in-train forces, identifying 
five types of recurring incidents that demonstrate the problem: 
improperly sequencing cars within a train, lack of appropriate 
locomotive power, brake lines that are too long to function 
properly, failure to account for possible loss of communication 
throughout a train, and relying on onboard systems 
inappropriately.
    If in-train forces is as old as railroading, why are these 
problems happening?
    Mr. Cothen. Well, I try not to go to head-to-head with the 
railroad operating officer because they are pretty tough and 
very knowledgeable. But the fact of the matter is that, number 
one, traditionally this was a matter handled by the railroads 
themselves and pretty well. There were still lapses and the 
railroad would report the train makeup was the cause of the 
accident and, indeed, we are still getting reports of train 
makeup as cause of the accident. Sometimes it is improper use 
of dynamic brakes, but the underlying cause is the train was 
not manageable by the crew, given its composition.
    The more you take a block of cars and add another block of 
cars sequentially at different locations, you aggregate the 
cars into the most efficient train, the less likely it is that 
that train is going to be made up correctly in terms of the 
management of in-train forces, and that is what is going on.
    Mr. Auchincloss. Mr. Cothen, I am going to interject there. 
Thank you for the response.
    I do want to give Ms. Sanborn the final minute just to 
respond to the comments thus far.
    Ms. Sanborn. Yes. Thank you very much for that.
    Let me talk about in-train forces. A lot of technology has 
come along that has been very beneficial to us to handle longer 
trains very efficiently and safely. Distributed power is an 
example of that. Energy management systems that are basically 
cruise control systems that help operate the train with an eye 
towards managing in-train forces, as well as speed and fuel 
efficiency.
    And I would tell you that we have operating rules that give 
us a--have a very clear understanding of trailing tonnage and 
specifics around how the train is made up, whether there is 
end-of-car cushioning devices----
    Mr. Auchincloss [interrupting]. But these accidents are 
still happening.
    Ms. Sanborn [continuing]. Where they are on the train. 
Pardon?
    Mr. Auchincloss. These are still happening.
    Ms. Sanborn. What is happening?
    Mr. Auchincloss. The accidents are still happening at an 
increasing rate, and so, it calls into question the new 
technologies and their efficacy to the problems at hand.
    Ms. Sanborn. I think the technology is enhancing our 
operation to make it more safe. And I think the technology will 
continue to do that, both from a standpoint of train build and 
train marshaling. And we are continuing to improve in the 
visibility of that for not just the next station but the entire 
route of the train.
    Mr. Auchincloss. Yielding back, Chairman.
    Mr. Payne. Thank you. The gentleman yields back.
    That concludes our hearing for today. I would like to thank 
each of the witnesses for your testimony today.
    I ask unanimous consent that the record of today's hearing 
remain open until such time as our witnesses have provided 
answers to any questions that may be submitted to them in 
writing.
    I also ask unanimous consent that the record remain open 
for 15 days for any additional comments and information 
submitted by Members or witnesses to be included in the record 
of today's hearing.
    Without objection, so ordered.
    The subcommittee stands adjourned.
    [Whereupon, at 1:11 p.m., the subcommittee was adjourned.]


 
                       Submissions for the Record

                              ----------                              

   Prepared Statement of Hon. Peter A. DeFazio, a Representative in 
      Congress from the State of Oregon, and Chair, Committee on 
                   Transportation and Infrastructure
    I thank the chair for calling this hearing. With so much change 
happening in this industry, this hearing provides an opportunity to 
examine the current state of freight rail safety and discuss the 
challenges of the day.
    At the outset, I think it's important to recognize that this 
industry has seen significant safety gains over the last several 
decades. In the late 1980s, for the Class I freight railroads, 20,000-
30,000 total accidents/incidents every year were common, so too were 
more than 2,000 non-grade crossing train accidents, 800-900 total 
fatalities, and dozens of on-duty employees fatalities. By comparison, 
for the current 10 years of 2013-2022, total accidents/incidents have 
ranged from 5,000-6,000 per year, non-grade crossing train accidents 
have ranged from 1,200-1,600, total fatalities include 400-600 deaths, 
and on-duty employee fatalities ranged from 6-9 lost lives.
    Now, the changes that led to these safety gains did not come easily 
or happen overnight, and some gains were the result of congressional 
mandate or regulation that were put in place over the industry's 
objections.
    Those statistics show clear improvements over the decades. With 
that record in mind, I am worried that our progress has leveled off. 
Accidents continue and lives are lost every year. And workers are still 
suffering fatalities and grisly injuries: just last year, in the span 
of a few days, one Class I had two new conductors with less than a year 
of service suffer amputations after being struck by on track equipment.
    Railroading is inherently demanding and dangerous; it's a 24/7 
operation that requires working on or near large, heavy, moving 
equipment. Trains that can measure miles-long and weigh tens of 
thousands of tons are traveling through communities.
    For those reasons, the conversation about improving safety will 
never end. We need to be nimble and mitigate issues we know are unsafe.
    This is especially true in the era of so-called precision scheduled 
railroading (PSR). After years of my railing against PSR and the ills 
it's brought to this industry, the debate about whether the Class I's 
have cut their workforce too much has finally been to put rest. For two 
days in April, labor, rail shippers, even Wall Street analysts and the 
railroads themselves, openly discussed the need to hire more workers. 
Last month, the Surface Transportation Board told this committee it 
agrees. Well, it's about time.
    Today we'll hear from union witnesses whose members feel they are 
near the breaking point. They say that because there are so few 
workers, they're working longer hours--sometimes consecutive days of 
16-hour shifts--covering larger territories and feeling pressures to 
rush their work. We know about these conditions because individual 
workers are writing in and telling us--saying these pressures are 
causing untenable fatigue and safety concerns, contributing to poor 
morale, and prompting some to leave the industry--a stark change from 
what has traditionally been a sought-after career. This should be 
troubling to everyone participating in this hearing.
    In addition to the worker perspective, I'm interested in hearing 
from the expert witness who's leveraged his decades of rail safety 
experience to call attention to a litany of accidents that he believes 
demonstrates a regression of the industry's management of in-train 
forces, resulting in repeated risks and preventable accidents.
    Another safety expert is here today representing the freight rail 
industry which of course has a central role in today's conversation. I 
look forward to hearing their perspective, what they're doing to 
advance safety, and their commitment to improving the current 
conditions.
    I also want to note that we've been hearing concerns from 
stakeholders not represented here today. For example, the Association 
of State Railroad Safety Managers submitted a statement to this 
committee raising concerns with several new railroad practices, 
including a move by some railroads to shift maintenance costs 
associated with crossing improvement projects, long borne by railroads, 
to local municipalities, resulting in the stalling, canceling, or 
scaling back of projects that are intended to enhance crossing safety. 
The letter raises others concerns such as the impacts of very long 
trains and the significant challenges in properly managing in-train 
forces in order to avoid derailments and damaged equipment.
    Lastly, I'm pleased that our federal railroad safety regulator is 
here. Under this Administration, the Federal Railroad Administration 
has sharpened its focus on safety, launching system-wide audits of the 
Class I's, audits of crewmember certification programs, inspection 
blitzes, a doubling down on accident reporting reviews, and rechartered 
a consensus-building, Rail Safety Advisory Committee. I encourage FRA 
to continue exercising its important oversight and regulatory 
authorities to improve safety, and I urge Administrator Bose to listen 
to the other witnesses testifying here today. If we are employing 
practices known to create risks and cause accidents--put an end to 
them. If there are corners being cut for the sake of efficiency and at 
the expense of safety--put an end to it. The natural role of any safety 
regulator is to thwart risks and hold all players accountable. That is 
always your role, and it is especially important while Wall Street has 
its grip on the industry.
    I thank all the witnesses for participating today and look forward 
to the discussion.

                                 
  Prepared Statement of Hon. Sam Graves, a Representative in Congress 
     from the State of Missouri, and Ranking Member, Committee on 
                   Transportation and Infrastructure
    Thank you, Chair Payne, and thank you to our witnesses for being 
here.
    Today, we are reviewing the current state of freight rail safety 
and proposed security enhancements that ensure the freight railroad 
industry remains one of the safest modes of transporting goods in the 
world.
    One of the best means of assisting our freight rail industry in 
advancing safety innovation and improvements is through the federal 
grant programs offered by the Federal Railroad Administration and other 
agencies.
    These programs offer important opportunities to eligible entities 
to invest in maintenance and safety improvements, including grade-
crossing upgrades and closures, track replacements, and chances to test 
and use new safety technology.
    There are now historic levels of funding available in these grant 
programs. We must ensure that this money is distributed transparently 
and fairly with as few impediments as possible to applying and 
receiving support.
    Safety improvements not only protect the railroad industry and the 
communities it serves, but it also assists in more efficiently moving 
goods through our essential supply chain.
    I look forward to hearing more from our witnesses.
    Thank you, Chair Payne. I yield back.


 Statement of Chuck Baker, President, American Short Line and Regional 
Railroad Association, Submitted for the Record by Hon. Peter A. DeFazio
                              Introduction
    As president of the American Short Line and Regional Railroad 
Association (ASLRRA), the trade association representing the nation's 
600 small business Class II and Class III railroads, I submit this 
testimony for inclusion in the record of the subcommittee's hearing.
    ASLRRA appreciates the subcommittee holding this hearing on safety 
throughout the national rail network. Safety is the top priority of 
ASLRRA's members. Short line freight railroads operate 24/7/365 in an 
ever-changing and complex, increasingly demanding environment, working 
in all weather and overcoming all manner of challenges and conditions 
to serve our customers. Through it all, our members are constantly 
focused on ensuring that their employees get home safely at the end of 
each shift, and that the communities they serve are enhanced and made 
stronger by the service we provide.
    We are eager to share our insight, perspective and suggestions with 
this panel.

The country's short line freight rail industry, a vital part of North 
America's supply chain, is safe and getting safer.

    ASLRRA's members are Class II and Class III railroads, all of which 
are classified as small businesses.\1\ Our members are critical links 
in the nation's freight supply chain, and all are vital engines of 
economic activity. Together, our members are tied to 478,000 jobs 
nationwide, $26.1 billion in labor income and $56.2 billion in economic 
value-add. Our members provide a service that approximately 10,000 
businesses nationwide rely upon to get goods and products to and from 
market.\2\
---------------------------------------------------------------------------
    \1\ According to the Surface Transportation Board, a Class II 
railroad has annual revenues between $40,400,000 and $900,000,000; a 
Class III railroad has revenues below $40,400,000.
    \2\ The Section 45G Tax Credit and the Economic Contribution of the 
Short Line Railroad Industry, prepared by PWC for ASLRRA (2018).
---------------------------------------------------------------------------
    Short line railroads are especially integral in providing first- 
and last-mile service, functioning frequently as the first and/or often 
final link between suppliers and customers who require critical goods 
and freight. Our members provide this connection in many key industries 
critical to our country's economic health, including the manufacturing, 
agricultural, energy, and chemical sectors.
    As the first- and last-mile providers for one in five railcars 
moving across the country on any given day, short lines interface 
constantly with the public--shippers, community leaders, motorists, and 
pedestrians--in the mostly small town and rural communities in which we 
operate.
    Short line owners, executives, and operating personnel are active 
members of their local communities--you see them in the grocery store, 
at the PTA meeting, on the ballfields, and in your places of worship. 
Because short lines are small business owners, and they live and work 
in the communities they serve, safety is more than a good business 
decision, it is a steadfast personal obligation.
    Recent data from the Federal Railroad Administration (FRA) 
indicates that this past decade has been the safest ever for freight 
railroading, and that freight railroading is among the safest 
industries in the nation.
    But our work is not done, and we must never get complacent. We 
pledge to remain ever-vigilant in driving forward with our safety-first 
mindset.

ASLRRA provides key resources to assist railroads in enhancing safety 
practices.

    ASLRRA has more than one hundred years of history of providing 
support to small business railroads. Today, our members regularly 
indicate that the resources provided by the association are critical to 
their success in all areas of operations--especially safety.
    1) T3Training and education. We keep safety at the forefront for 
our members by providing training and education and partnering with the 
FRA and other subject matter experts for safety-driven content. 
Education is provided in-person at regional and national events, and 
via webinars with nearly 200 recorded sessions on a wide variety of 
topics.
    20)Investments in safety. We advocate in Washington, DC for 
legislation that makes sense for short lines railroads and the public 
that we serve. We seek laws that drive public money efficiently toward 
projects and initiatives that make our operations ever-safer, deliver 
public good by ensuring access to the U.S. economy for rural and small 
town America's businesses, and provide family-supporting jobs. This 
includes grant opportunities and tax credits that ensure that our 
infrastructure is modern, efficient, and safe.
    3)Smart oversight. We work on behalf of our members with rulemaking 
bodies such as the FRA, the Environmental Protection Agency (EPA), the 
Occupational Safety and Health Administration (OSHA), the Surface 
Transportation Board (STB), and the Small Business Administration's 
(SBA) Office of Advocacy to ensure that regulations drive improvements 
in safety AND can be reasonably implemented by small businesses. We 
bring ideas to these agencies to consider in upgrading and modernizing 
rulemakings that are outdated due to new technologies available, or 
operational changes. Examples of these efforts include the use of 
electronic air brake slip systems (eABS), drones for certain types of 
inspections, and more. Finally, we provide expert advice in rulemakings 
to ensure there are no unintended consequences for small business 
railroads.
    4)Safety expertise. We provide industry expertise in safety 
compliance, including auditing a railroad from a safety perspective, or 
helping to solve operational challenges. Recently, our staff and member 
railroads developed a template training program for 49 CFR Part 243 to 
ensure that all members could complete the intensive required safety 
training.
    5) T3Honoring safety professionalism. We honor excellence in safety 
on member railroads with our Jake Safety Award program. Hundreds of 
short line railroads are recognized each year for winning ``Jakes with 
Distinction'', signifying zero reportable injuries annually. Our Safety 
Person and Safety Professional of the Year awards recognize exceptional 
careers in safety and are the industry's most esteemed honors.
    6) T3Elevating safety practices. As an eligible applicant for 
certain federal grant funding programs, ASLRRA seeks to provide 
additional resources to short line railroads to elevate safety 
practices and to implement technology that will lead to safer 
performance. For example, in partnership with the Iowa Northern 
Railroad, ASLRRA was awarded a Fiscal Year 2020 grant through the 
Consolidated Rail Infrastructure and Safety Improvements (CRISI) 
program, which will build online and in-person training specifically 
designed for short line railroads in the areas of operations and 
safety. Another grant in process through a recent FRA Broad Agency 
Announcement (BAA) will fund the measuring of environmental impact of 
practices and technologies that some of our members are currently 
implementing, while ensuring that safety is not compromised. ASLRRA 
also received a grant from the FRA to assist our member railroads with 
the complexities of implementing PTC.

Short lines invest heavily in infrastructure, increasing safety for 
employees and shippers.

    Short line railroading is one of the most capital-intensive 
industries in the country. Short lines invest on average 25% to 33% of 
their annual revenues into maintaining and rehabilitating their 
infrastructure. Additionally, short lines are often the custodians of 
expensive bridges and tunnels that were originally built by much larger 
railroads generations earlier and are now reaching the end of their 
useful lives. Federal funding opportunities like the CRISI grant 
program provide short lines with an opportunity to meet these 
challenges.
    Through the short line railroad 45G tax credit and government 
infrastructure investment grant programs such as CRISI and other 
important USDOT grant efforts (like Rebuilding American Infrastructure 
with Sustainability and Equity (RAISE), Infrastructure for Rebuilding 
America (INFRA), and the recently created Railroad Crossing Elimination 
grant program, among others) short lines have been able to upgrade 
thousands of miles of track to 286K-lb capabilities and rebuild and 
repair worn-out and outdated bridges, tunnels and rail to improve 
efficiency and ensure safer operations.
    ASLRRA was pleased to see 24 of 46 Fiscal Year 2021 CRISI grant 
projects awarded to short line railroads in early June 2022. These 
projects will make freight rail transportation safer and more 
affordable than ever in the areas they serve--while providing the most 
environmentally friendly surface transportation mode available. 
Upgraded infrastructure will lead to better on-time performance for 
customers and the ability to handle more freight by rail, taking trucks 
off the road--decreasing environmental impact and safety concerns for 
the motoring public--all while delivering better safety performance. 
The FY21 CRISI grants will provide approximately $150 million in 
federal funds for short line infrastructure, which is a very welcome 
infusion, and combined with approximately $1 billion in annual private 
short line investment, will make a meaningful difference in short line 
safety and service.
    Still, there is much, much more work to be done to catch up with 
our estimated $12 billion in state of good repair needs. Our members 
look forward to competing vigorously for future rounds of CRISI funds 
and putting them to use making the rail network safer for all who rely 
on it. As the Infrastructure Investment and Jobs Act (IIJA) is 
implemented and its critical resources are made available, we encourage 
Congress to robustly fund the CRISI program at the full $1b annual 
authorized discretionary appropriations level and the administration to 
prioritize funding for the many freight rail projects that enhance 
safety, while bringing other benefits, like reducing supply chain 
bottlenecks, advancing environmental solutions and taking highway-
clogging trucks off of highways. These projects are often the biggest 
``bang for the buck'' available in surface transportation.

Short Line Safety Institute (SLSI) drives safety culture improvements 
for short line railroads.

    Founded in 2015 to enhance the safety culture on small railroads, 
the SLSI is supported by annual appropriations from Congress, via the 
FRA. Safety culture has been identified as a top priority for the short 
line and regional railroad industry. Class II and III railroads 
sometimes lack the resources to conduct comprehensive internal safety 
culture assessments and evaluations. SLSI was formed to fill this need 
for smaller, often under-resourced railroads.
    The goal of the SLSI and its programs is for the short line and 
regional railroad industry to perform at an increasingly high level of 
safety because of a focus not only on compliance, but on safety 
culture, defined as ``the shared values, actions, and behaviors that 
demonstrate a commitment to safety over competing goals and demands.''
    The SLSI provides several programs, including its flagship Safety 
Culture Assessment (SCA), recognized as the most robust safety culture 
assessment in the railroad industry, at no cost to railroads. Many of 
ASLRRA's members have taken advantage of the staff's 600 years of 
collective safety experience and made measurable improvements to safety 
culture as a result. An analysis conducted by the Volpe National 
Transportation Systems Center in April 2022, Implementing SLSI-Provided 
Opportunities Supports Safety Culture Growth, reports that railroads 
who have completed a second ``Time 2'' SCA performed by the SLSI 
experienced measurable overall improvement in safety culture, and in 
each of the ten core elements of a strong safety culture evaluated 
during an SCA.
    The SLSI provides Safety Culture Assessments, Leadership Training, 
and HazMat Training--all delivered in a variety of formats from in-
person to videos, to downloadable Posters and Safety Tips for use 
during a safety briefing.

Short lines partner with industry experts to continuously improve 
safety.

    ASLRRA works closely with a variety of regulatory bodies, and other 
industry associations, in the pursuit of strengthening safety 
practices.
    One of the strongest partners for ASLRRA members is Operation 
Lifesaver, Inc. (OLI). OLI is a non-profit organization and nationally-
recognized leader in rail safety education. Since 1972, OLI has been 
committed to preventing collisions, injuries and fatalities on and 
around railroad tracks and highway-rail grade crossings, with the 
support of public education programs in states across the U.S.
    The largest areas of risk in train-related deaths and injuries are 
from trespassing and suicide. Many of these incidents happen at grade 
crossings. These incidents are tragic for all involved from the train 
crew to the families impacted and the communities where these incidents 
occur.
    ASLRRA's members provide staff hours to volunteer across the 
country to educate the public on rail safety. Many short line 
professionals likewise serve at the state levels of Operations 
Lifesaver, on boards and as trained presenters.
    Our members have helped to support the 82% decline in train/motor 
vehicle collisions from a 1972 high of roughly 12,000 annual incidents 
to approximately 2,200 incidents in 2019 through their work with OLI.

Short line railroads urge Congress and the administration to advance 
safety rules and regulations with known safety benefits and to foster--
not hinder--technology and operational practices that improve rail 
safety.

    With safety at the forefront of its members' daily operations, 
ASLRRA is concerned that the regulatory structure governing the 
industry fails, in some regard, to meet modern standards and allow for 
the use of sophisticated technology to more efficiently accomplish 
tasks that in the past have been done in a now antiquated fashion. 
ASLRRA shares the strong concerns articulated by representatives of AAR 
and the country's Class I railroads submitted for this hearing 
concerning Automated Track Inspection (ATI) activities. We encourage 
FRA to develop a posture on ATI and use of waivers that advances smart 
technology--and does not impede its adoption. ASLRRA believes FRA 
should encourage and incentivize efforts to use technology to make rail 
safer--not stand in the way of safety efforts with requirements that 
railroads adhere to now outdated practices. Similarly, ASLRRA 
encourages FRA to move forward with smarter, more advanced and more 
modern electronic eABS that replaces outdated methods--and that could 
eliminate inefficient extra train movements.
    Short lines urge FRA to continue its regulatory framework governing 
excepted track. ``Excepted track'' is a designation of track on which 
speed is limited to 10 mph and in which certain types of movements are 
prohibited or restricted. For decades, short line railroads have used 
excepted track to serve customers, adhering to FRA rules governing 
excepted track that ensure safety for workers and the public. For 
example, these rules require the following: the track must be inspected 
at the same frequency as Class 1 track; speed on said track is limited 
to 10 mph or under; there are limits to the number of hazardous 
materials cars that can be carried; passenger operations are 
prohibited; and the owner of the track may not designate the track as 
excepted if the track is close to certain adjacent tracks, near a 
bridge, public street or highway.
    The ability to use excepted track has kept rail service safe and 
viable for customers and increased public safety by keeping freight off 
the highway. Proposals that would undermine this framework would harm 
small business short line freight railroads, disrupt the supply chain, 
and inject new safety uncertainties in the movement of goods and 
freight.
    ASLRRA also urges the FRA to publish an NPRM on 49 CFR Part 243 
training, which codifies the use of training templates developed 
specifically for small business short line railroads. The templates are 
critical to ensuring implementable and thorough training procedures on 
short line railroads, elevating safety.
    Finally, ASLRA is concerned about a rulemaking underway on railroad 
crew size. The FRA has announced that it will issue a rulemaking 
requiring a minimum number of crew members on a train in most cases. 
From what we know, this draft rule has no known, proven, or 
quantifiable safety benefit. Rather, based on our research and due 
diligence, it will increase the cost of our members' efforts to provide 
service to shippers and customers, as many short lines today operate 
safely with one crew member in the cab, commensurate with the 
railroads' needs and requirements, or will eventually do so. Any 
mandate to hire and train more personnel than necessary in rail 
operations would force small business short line freight railroads to 
make counterproductive economic decisions between necessary safety 
upgrades and unnecessary forced hiring. Any mandate stands in stark 
contrast to the prevailing policy in other modes of transportation that 
are fostering an increase in unmanned operations--especially in 
trucking and automobiles. We strongly discourage any rulemaking that 
will not deliver a documented safety benefit and has the unintended 
consequence of making transportation more costly to shippers.
                               Conclusion
    The short line freight industry is safe, and getting safer. We 
appreciate the subcommittee's attention to our statement. We welcome 
future opportunities to provide examples of programs the short line 
industry is supporting to increase safety, and to collaborate on future 
initiatives.

                                 
    Emails from Two Railroad Employees, Submitted for the Record by
                         Hon. Peter A. DeFazio
From----
Sent:  Tuesday, June 7, 2022 4:01 PM
Subject:  Examining Freight Rail Safety hearing
                                                      June 7, 2022.
House Committee on Transportation and Infrastructure
Attention:  Examining Freight Rail Safety

    Dear Congressional members,
    My name is ----  and I have been employed by BNSF Railway since 2006, 
about 16 years, as a Locomotive Engineer and Conductor. I am writing to 
you concerning a grave situation that is occurring right now in this 
company, and among all carriers in some form in the past few years. The 
general safety of running trains 24/7 and 365 days a year falls upon 
these Trainmen workers and other workers in Maintenance, Train 
inspection forces (Carmen), and signalmen.
    In the past few decades, Rail companies have decided that they 
needed to cut workers to make massive profits for their stock holders. 
It has resulted in massive employee cutbacks to the point now that the 
railroads can not even run trains, especially in the past few months. 
What did BNSF do when they suddenly realized that they did not have 
enough crews? They did not go out and hire people. instead they doubled 
down on new attendance policies to make the workers work weeks at a 
time without an ability to lay off without being punished by the 
Carriers. BNSF is especially egregious, with a new attendance policy 
called ``HI-Viz''. UP has also done a similar, though slightly less 
horrible attendance policy.
    Imagine being on call 24/7. But never being able to lay off because 
the carrier has limited numbers of lay off slots available to the 
workers, yet if we try to lay off sick on weekends, holidays or other 
``special days'' that local management can decide (like a county fair), 
it makes it so that only a tiny percentage of workers can ever lay off 
on a given day . . . for ANY reason. In my terminal, with less than 140 
workers on a conductor board, only 11 can lay off. Right now, they 
usually do allow people to lay off sick, but recently in Texas, the 
company has been denying those layoffs.
    Laying off sick is often the only means to get any rest when we are 
working non-stop, and are tired and fatigued. We may work 12-14 hours 
from home to our away from home terminal. Spend 12-24 hours in that 
hotel room, then 12-14 hours back home. Often, we only get the minimum 
RISA required rest of 10 hours. We used to get an average of 30-40 
hours off, but since over 60 have quit our terminal, we are now working 
the most anyone has ever seen in decades.
    RISA does require workers to take 48 hours every 6 ``starts'', or 
72 hours every ``7 starts''. But what the companies do, is wait for a 
worker to be ``available'' for 24 hours and 1 minute, and that 
``restarts'' the ``starts''. So what happens is that we do not actually 
get time off, as we are always having to ``be ready to work'' every 
day. Many never get RISA time off, though in the past few weeks, we 
have been so short on workers that dozens now are hitting RISA 
mandatory time off as we are working every 10 hours.
    I know that this is all confusing. But the Railroads have made it 
confusing. Various ways of laying off, depends on the ``points'' that 
the carrier takes off for a certain day of the week. It is easy for 
someone to get in trouble with these attendance policies, and dozens 
are being fired weekly now for that alone. That is on top of the 500 
that quit last week because they were sick and tired of being sick and 
tired. About 2000 since Feb 1st 2022, when this policy started (out of 
about 17500)
    Many are quitting mid-career, from 12-24 years, giving up pensions 
because they are so fatigued and never able to have family time at 
home. Never able to go to their doctor appointments. Even paying a 
necessary bill can become a headache, as we are often trying to sleep 
during the middle of the day.
    What is causing all this? It is partly with the carriers insisting 
in Contract negotiations that they do not want to pay us Cost of living 
increases, and are demanding 1 man crews, virtually eliminating the 
Conductors. How do you tell a new hire that their job is probably gone 
in 7 years? I will tell you, as an engineer, that this is madness. I do 
not want to be on a train, by myself for 12 hours, with no other human 
contact. Worse, is if we do have a breakdown, or an accident with the 
public, the conductor can not be the ``first eyes'' on the scene for 
emergency response. As what happened in a derailment a few years ago, a 
Hazardous materials tank train derailed and caught fire. That conductor 
was able to cut away the cars that were not on fire, and saved lives. 
New hires are refusing to stay because they can find better pay, and 
better hours at other industries. Most people do not even interview 
anymore, and if they do get a 10 person class, usually only 1 or 2 
finish new conductor training. The rest quit because of the pay and 
attendance policies.
    But that conductor's job is increasingly becoming more and more 
dangerous. A radio ``packset'' that the conductor uses to communicate 
to the engineer, was never designed for 2, 3, 4 mile ranges. Yet the 
conductors are having to walk, often in bad weather, high heat, or feet 
of snow, 3 miles to the rear end of a train to fix issues, with limited 
communication. 13,000-15,000ft trains are way too long for that.
    The other issue is the fact that many of these trains are in fact 
too long to fit in sidings. This prevents shorter trains from getting 
over the road, causing rail crews to ``die on hours of service'', often 
having to be taxied an additional 1-3 hours to their terminals, above 
and beyond their 12 hours of service.
    As for Mechanical and signal forces, they too have been cut to the 
bones. There is not enough to inspect trains to the extent they used 
to. Not enough workers to service the tracks and rail systems. I think 
that this is causing more derailments that we have seen in past few 
years. Carmen used to inspect 150 different things on a rail car. In 
recent years, that has gone down to less than 60. Go back to the 4 hour 
``off air'' requirement of inspections, instead of the new 24 hours 
``off air''.
    I sincerely hope that Congress can address the following:
    1)  Need 2 Man Crews, for safety and for mental health of workers 
and the public.
    2)  Need legislation that requires Carriers to negotiate on 
attendance policies.
    3)  Need restrictions on train length to not more than 8000ft
    4)  Need legislation that gives workers the OPTION to get more time 
off.
    5)  Need more oversight on requiring carriers to have more 
manpower. That includes requiring reasonable contract negotiations for 
reasonable pay comparable to other industries to attract new hires
    6)  Need more FRA inspectors, and less exemptions to required 
inspections.
    7)  Need changes to Rail labor act, to give the unions more ability 
to strike. Otherwise the Carriers have no desire to listen, nor 
negotiate with them, resulting in the mess we have today.

    Thank you for your time.
                                                          .
                               __________
From:  Brent Roberts
Date:  June 8, 2022 at 7:59:28 AM EDT
Subject:  House Comm on Transportation & Infrastructure: Examining 
Freight Rail Safety

    I'm writing in support of any and all legislation or discussion 
that may come before your Committee regarding efforts to maintain Two 
Person Crews on railroad freight trains as it might relate to health, 
welfare and public safety of our Citizens.
    Prior to the railroad I served one 3 year tour in the US Army as 
Military Policeman. After my tour was complete I obtained an Associate 
Degree and eventually a Bachelor's Degree in Criminal Justice. I was 
ultimately successful in having a 22 year career as a State Police 
Agent. I mention this semi-biography to highlight the safety conscious 
career fields in which I've been involved.
    I was hired by the BNSF Railway in Feb of 2006 as a Conductor/
Switchman. In Jan of 2008 I achieved enough seniority in my terminal to 
be promoted to the Locomotive Engineer Training program and 
subsequently graduated from the program to become a Certified 
Locomotive Engineer in June 2008. A few years later I was elected to 
the Safety Committee of my Local Union and was also elected as my 
Local's Legislative Representative dealing with mostly safety related 
issues.
    Several years after being promoted to a Locomotive Engineer I was 
operating a southbound train through the City of Norman, OK. This City 
has quiet zone grade crossings at every one of the grade crossings 
located within its city limits. This means that as a Locomotive 
Engineer I am not allowed to blow the train locomotive's very loud horn 
as the train approaches and then traverses the grade crossing. All I'm 
allowed to do is have the locomotive's bell ringing. The bell isn't 
very loud compared to the locomotive's horn.
    The City of Norman's Central Business District is near the Amtrak 
Railway passenger depot and is located adjacent to the grade crossing 
for Main Street. While the grade crossing utilized by vehicles is 
equipped with the usual crossing arms, flashing lights and bells, the 
part of the crossing utilized by pedestrians has no protective devices. 
This allows pedestrians to cross the train tracks potentially without 
any warning of an approaching train other than the locomotive's ringing 
bell.
    On the day of this incident I was operating my train approaching 
the Main Street grade crossing. As a Locomotive Engineer behind the 
controls of the locomotive I have 3 computer screens that require my 
constant observation pertaining to the operation of the train, the 
Positive Track Control (PTC) screen, the Trip Optimizer (TO) screen and 
the normal screen showing the data fields related to the actual train.
    At times keeping up with all three of these computer screens can 
approach information overload. This is especially true when factoring 
in insuring that the various safety devices are being operated 
appropriately when approaching grade crossings, high traffic 
pedestrian/entertainment areas or listening to radio traffic related to 
other trains or from the Train Dispatcher.
    As my train was approaching the Main Street grade crossing my 
attention was focused on the various computer screens. I would scan 
back and forth from the screens then the grade crossings trying to keep 
track of all the data fields and events outside the train. I wasn't 
seeing anything unusual outside so I'm looking at one of the computer 
screens requiring me to take my eyes off of events outside the train.
    All of a sudden I hear my Conductor exclaiming ``Don't do it''. I 
look up to see a gentleman walking towards the Main Street grade 
crossing on the pedestrian part of the crossing. He's wearing ear buds 
and carrying a cell phone ostensibly listening to music while out 
exercising. It's immediately apparent that he's completely oblivious to 
the fact that he's about to be killed by walking in front of and being 
run over by a train traveling at 55 mph.
    I immediately reach down and start blowing the locomotive's horn in 
an attempt to provide warning to the pedestrian. I can see him react to 
the horn while still striding towards the grade crossing but he first 
looks towards the south, then swivels his head to the north when he 
sees the train. He is still striding towards the tracks as his momentum 
hasn't slowed enough for him to stop . . . yet.
    I can see him leaning back and trying to stop his momentum as the 
train screams by him at 55 mph and I lose sight of him. He is literally 
bending backwards at the waist trying to keep from walking in front of 
and being hit by the train.
    So little time has elapsed, `maybe' two seconds probably less, 
since my Conductor alerted me to the pedestrian's proximity to the 
train tracks that I haven't even had a chance to activate the train's 
emergency braking capabilities. Not that the emergency brakes would 
have slowed the train enough to prevent something by slowing the train. 
This was such a bang/bang episode that there was only time to blow the 
train's horn in an attempt to save the life of the pedestrian.
    Ultimately my Conductor was able to look in his side view mirror 
and see that the pedestrian was able to stop his momentum and other 
than probably being scared out of his mind as far as I know was 
uninjured. My Conductor did observe that the pedestrian's body was only 
mere inches from the side of the train, he estimated it as 4 inches, as 
it roared by at 55 mph having come that close to probably being killed 
had he actually been struck by the train.
    I'm relating this real life event not to complain about the lack of 
safety devices on the crossing or even information overload but to 
point out that this gentleman is ONLY alive today because there were 
TWO persons inside the cab of the locomotive. Had I been the sole 
occupant of the locomotive on this day the pedestrian would no doubt 
have walked out in front of the train and been killed by the blunt 
trauma impact of the locomotive striking him and he'd have had no idea, 
literally, what had hit him.
    I'm certain that there are countless similar situations across the 
United States where having two persons in the cab of the locomotive 
have saved lives and that this is just one more to add to the list. 
However, what if there are other locomotive engineers with similar 
stories that are worried about reprisals from their employer and never 
submitted their stories.
    The Facebook post from where I obtained your email address 
mentioned that you would give confidential treatment to any email sent 
to you. I'm unconcerned about my email identity remaining confidential. 
My goal is to highlight awareness of issues similar to this in the 
hopes that someone else's life isn't lost due to there being only one 
person in the cab of the locomotive.
        Respectfully,
                                             Brent Roberts.

                                 
Letter of June 28, 2022, to Hon. Donald M. Payne, Jr., Chair, and Hon. 
 Eric A. ``Rick'' Crawford, Ranking Member, Subcommittee on Railroads, 
    Pipelines and Hazardous Materials, from Rachel Maleh, Executive 
 Director, Operation Lifesaver, Inc., Submitted for the Record by Hon. 
                            Peter A. DeFazio
                                                     June 28, 2022.
The Hon. Donald M. Payne, Jr., Chair,
The Hon. Rick Crawford, Ranking Member,
House Subcommittee on Railroads, Pipelines, and Hazardous Materials,
U.S. House of Representatives, Washington, DC 20515.
    Dear Chairman Payne and Ranking Member Crawford,
    In light of the Subcommittee's June 14 Hearing on ``Examining Rail 
Safety,'' which examined the state of freight rail safety and issues 
pertinent to keeping rail operations, rail workers, and communities 
safe, I am submitting a brief update on my testimony at your February 
5, 2020 hearing titled, ``Tracking Toward Zero: Improving Grade 
Crossing Safety and Addressing Community Concerns.''
    Operation Lifesaver, which this year celebrates the 50th 
anniversary of its founding in 1972, is a non-profit public safety 
education and awareness organization dedicated to reducing collisions, 
fatalities and injuries at highway-rail crossings and preventing 
trespassing on or near railroad tracks. In 1986 the non-profit 
Operation Lifesaver, Inc. national office, which I lead, was created to 
help support and coordinate the efforts of state Operation Lifesaver 
programs. Operation Lifesaver's authorized volunteers provide free 
safety presentations to reach audiences of all ages across the U.S. and 
beyond.
    We are proud of our role in making communities safer through 
virtual and in-person rail safety education. Our safety partners 
include federal, state and local government agencies, highway safety 
organizations and America's railroads. Together, we promote the three 
E's--Education, Enforcement and Engineering--to help people make safe 
choices around railroad tracks and trains.
    Since OL's inception in 1972, collisions at railroad crossings have 
dropped by more than 80 percent, from 12,000 annually to approximately 
2,100 in 2021. But there is more work to do--every three hours in the 
U.S., a person or vehicle is hit by a train.
    Since I testified before you in February of 2020, Operation 
Lifesaver has leveraged additional grants to:
      Provide competitive funding for 41 state crossing safety 
and trespass prevention campaigns totaling $756K from the Federal 
Railroad Administration (FRA) including states that rank among the top 
15 for grade crossing and trespass incidents.
      Provide competitive funding for 36 state crossing safety 
campaigns totaling $600K from the Federal Highway Administration (FHWA) 
including states that rank among the top 15 for grade crossing 
incidents.
      Provide competitive funding for transit rail safety 
campaigns to 6 transit agencies in 4 states totaling $107K from the 
Federal Transit Administration (FTA).
      Provide competitive funding for 11 state crossing safety 
and trespass prevention campaigns totaling $135K from OLI's private 
funder, the Posner Foundation of Pittsburgh.
      In all, these grants from 2020-2022 total approximately 
$1.6 million, with an additional in-kind return from the 2020 and 2021 
grants alone of more than $1.2 million to states and communities across 
the U.S.

    In addition to these ongoing grant programs, since 2020 Operation 
Lifesaver has completely refreshed and updated our collateral materials 
for drivers, pedestrians, professional drivers, outdoor enthusiasts, 
students, and more. We also released new public service announcement 
(PSA) campaigns aimed at drivers on low-clearance vehicles, shift 
workers, mature drivers, college students and farm vehicle operators. 
These materials and videos include actionable safety measures for 
audiences to stay safe at crossings and along railroad rights-of-way.
    Demand for Operation Lifesaver's Railroad Investigation and Safety 
Course, or RISC, is growing. We have trained more than 190 instructors 
to teach RISC both virtually and in person to law enforcement officers 
and other first responders. Since RISC launched, a total of 260 classes 
have been held with more than 4,200 students completing RISC as of the 
first week of June 2022. RISC is accredited in 17 states under law 
enforcement training programs: AZ, CA, CO, GA, IN, KS, LA, MN, MS, MO, 
NE, NM, ND, OK, SC, TN and TX.
    We also spearhead the annual observance of Rail Safety Week in 
North America to focus attention on the importance of safe behaviors 
around railroad tracks and trains. Our federal partners, private sector 
partners and other rail safety advocates are vital to the success of 
Rail Safety Week in reaching millions of people each year with the 
safety message. This year, Rail Safety Week is September 19-25. I 
invite you to join us to #STOPTrackTragedies across the U.S.
    For Operation Lifesaver's 50th Anniversary, our partners at Amtrak 
created and put into revenue service across the U.S. a beautiful 
locomotive emblazoned with the Operation Lifesaver 50th Anniversary 
Logo and the message, ``See Tracks? Think Train!'' as a moving 
billboard reminding people to practice safe behaviors.
    This year we also created an online Rail Safety Pledge for children 
and adults with tips to stay safe. We urge everyone to take--and 
share--the pledge.
    Most recently, Operation Lifesaver was part of the Host Committee 
for the June 8-10 International Level Crossing Awareness Day (ILCAD) 
2022 Conference in Denver, along with the International Union of 
Railways (UIC), Association of American Railroads, Federal Railroad 
Administration, Mineta Transportation Institute and Colorado Railroad 
Museum. The successful event drew over 150 participants from around the 
world.
    These are just a few of the ways that Operation Lifesaver, Inc. 
continues in our role as a force multiplier, leveraging crucial federal 
funds in states across the U.S. for greater impact. Together with our 
rail safety partners, Operation Lifesaver is making a difference in 
communities across the nation.
    Thank you for your interest in Operation Lifesaver and its critical 
rail safety education mission. I would be happy to answer any 
additional questions the Subcommittee has about Operation Lifesaver 
Inc. and state Operation Lifesaver programs.
        Sincerely,
                                              Rachel Maleh,
                      Executive Director, Operation Lifesaver, Inc.


 
                                Appendix

                              ----------                              


Questions from Hon. Peter A. DeFazio to Hon. Amit Bose, Administrator, 
                    Federal Railroad Administration

    Question 1.a. Your testimony describes FRA's audits of conductor 
certification programs, borne initially from concerns that railroads 
were changing their longstanding approaches to training programs, and 
continued as a result of the Infrastructure Investment and Jobs Act 
requirement.
    What were the changes made to the training programs that caused the 
initial concern?
    Answer. FRA received reports of certain Class I railroads 
significantly reducing the length of training for newly certified 
railroad conductors. Those reports, coupled with a series of accidents 
involving the severe on-duty injuries of railroad conductors, led FRA 
to become concerned that such reductions in the length of new conductor 
training were being made without sufficient justification. These 
concerns provided the impetus for FRA to review submitted programs 
involving railroads that made this sudden and unanticipated change.

    Question 1.b. For the audits of the Class I railroads' conductor or 
engineer certification programs that FRA has conducted so far, have any 
Class I's program been found not to conform with the regulations?
    Answer. To date, FRA has found 3 written certification programs 
from Class I railroads (one locomotive engineer program and two 
conductor programs) to be in non-conformance with 49 CFR parts 240 and 
242 because they lacked sufficient detail, required by FRA's 
regulations, to permit effective evaluation. FRA is working with the 
railroads involved to ensure appropriate corrective actions are 
implemented.

    Question 2. While other safety metrics have largely plateaued in 
recent years, the number of rail yard accidents has fluctuated but the 
rate of yard accidents has increased for the calendar years 2013-2021.
    Has FRA identified what may be causing this trend?
    Answer. FRA notes that the rate of yard accidents has overall 
increased slightly from 2013-2021. FRA suspects this increase may be 
related to issues associated with railroads' implementation of Part 240 
and 242 locomotive engineer and conductor certification programs and 
programs of operational testing and inspections under 49 CFR Part 217. 
FRA is currently evaluating this issue.

    Question 3. Mr. Cothen's testimony describes the importance of 
identifying the root cause of accidents but states that derailments 
caused by mismanagement of in-train forces are being reported primarily 
under `human factor' codes. This is true even when organizational 
failures--such as making up a train that has little chance of operating 
safely--underly the problem. He also indicated that mechanical codes 
are applied to derailments that are caused by improper management of 
in-train forces, sometimes questionably or sometimes because it's the 
only code available.
    What actions is FRA taking to ensure root causes of accidents are 
properly identified and coded?
    Answer. Accident and incident investigation is a key component of 
FRA's safety program. FRA is conducting a comprehensive review of its 
accident and incident reporting regulation (49 CFR part 225) and 
accompanying guidance to ensure cause codes reflect the current 
operating conditions. This effort will include reviewing and updating 
mechanical and human factor cause codes. In the meantime, FRA has 
modified its accident/incident investigation procedures to, when 
appropriate, require a more detailed analysis into the root cause(s) 
and contributing factors of certain accidents and incidents.

    Question 4. Mr. Cothen's testimony identifies recurring risks 
leading to preventable accidents and states that countervailing 
pressures are necessary to correct course. He posits that your agency 
must take a more active role in overseeing the railroads' management of 
in-train forces.
    What actions is your agency taking to require the railroads to 
correct the organizational failures contributing to these preventable 
risks and accidents?
    Answer. FRA recognizes that where cars of different types and 
weights are placed within a train impacts the in-train forces 
experienced and that improper train make up may lead to an accident. 
Outside of the Pipeline and Hazardous Material Safety Administration's 
train placement regulation (49 CFR Sec.  174.85), there is no Federal 
regulation governing train make-up, but the rail industry's use of 
distributed power (i.e., the practice of placing locomotives part way 
through and/or at a train's rear) has significantly reduced the 
occurrence of derailments from excessive in-train forces. However, FRA 
continues to study train make up as it relates to train length. As part 
of the study of freight trains longer than 7,500 feet the 
Infrastructure Investment and Jobs Act (IIJA) requires, FRA will 
continue to evaluate the impact of train makeup on rail safety and take 
any action necessary to ensure proper management of in-train forces.
    At the same time, FRA and industry are just beginning to implement 
FRA's Risk Reduction Program (RRP) rule. RRP is a comprehensive, 
system-oriented approach to safety that determines a railroad 
operation's level of risk by identifying and analyzing applicable 
hazards, and involves developing plans to mitigate, if not eliminate, 
that risk. Additionally, recognizing that systemwide organizational 
factors can either create or control safety risks, consistent with the 
mandate of the IIJA, FRA has initiated a program of system-wide audits 
on certain railroads. During an audit, FRA personnel from all safety 
disciplines examine multiple aspects of the railroad and its operations 
at the same time, exchanging information on an ongoing basis. By 
leveraging information gathered in early stages to target subsequent 
audit activities, FRA focuses on organizational factors that might not 
otherwise come to light.

    Question 5.a. In 2021, FRA initiated a program of comprehensive 
system-wide safety audits of Class I railroads. Regular oversight is a 
necessary and basic responsibility of any safety regulator. I applaud 
you for this work. Once the audit is complete, correcting any 
identified deficiency is critical to making the audit effective.
    After completing these audits, how is FRA putting the findings to 
good use?
    Answer. Once the system audit is completed, FRA meets with the 
audited railroad to discuss what corrective actions or mitigating 
measures the railroad plans to take in response to the audit findings. 
Depending on the circumstances, FRA may also take enforcement action 
for any identified conditions not in compliance with Federal 
regulations. FRA then monitors the railroad's progress implementing any 
identified corrective actions or mitigating measures through data 
analysis, inspections, periodic meetings, or other methods to assess 
the degree to which the railroad has successfully mitigated the causes 
of any adverse audit findings. In one instance, for example, FRA found 
that some aspects of a railroad's Critical Incident Stress Plan, which 
provides support to employees exposed to traumatic accidents, were not 
effective. The railroad proposed to make changes in response to the FRA 
audit recommendations, and FRA meets with the railroad on a periodic 
basis to ensure the railroad continues to make progress. FRA will 
continue to monitor accident/incident data and employee complaints and 
engage with other stakeholders (including railroad employees and labor 
organizations) to evaluate the effectiveness of the corrective actions 
and mitigating measures taken.

    Question 5.b. Does FRA review whether the carriers comply with 
their own train marshalling rules?
    Answer. If FRA finds that the placement of cars in a train may have 
been a causal factor in an accident or incident, FRA will evaluate the 
make-up of the train from a train marshalling perspective. FRA 
recognizes that where cars of different types and weights are placed 
within a train impacts the in-train forces experienced and that 
improper train make up may lead to an accident. Outside of the Pipeline 
and Hazardous Material Safety Administration's train placement 
regulation (49 CFR Sec.  174.85), there is no Federal regulation 
governing train make-up, but the rail industry's use of distributed 
power (i.e., the practice of placing locomotives part way through and/
or at a train's rear) has significantly reduced the occurrence of 
derailments from excessive in-train forces. However, FRA continues to 
study train make up as it relates to train length. As part of the study 
of freight trains longer than 7,500 feet the Infrastructure Investment 
and Jobs Act (IIJA) requires, FRA will continue to evaluate the impact 
of train makeup, including railroads' own marshalling rules, on safety.

     Questions from Hon. Eleanor Holmes Norton to Hon. Amit Bose, 
             Administrator, Federal Railroad Administration

    Question 1.a. Administrator Bose, many residents of the District of 
Columbia have been negatively affected by train noise and vibration 
near their homes.
    What is the Federal Railroad Administration's (FRA) authority to 
regulate train noise and vibration, and what steps has FRA taken to 
reduce or mitigate train noise and vibration near homes?
    Answer. The Environmental Protection Agency (EPA) has primary 
responsibility for setting noise emission standards for non-high speed 
trains under the Noise Control Act of 1972 (42 U.S.C. Sec.  4901 et 
seq.). In the 1970s, EPA established a noise emissions standard for 
railroad operations, including moving and stationary locomotives and 
car coupling operations. Under the Noise Control Act, FRA has the 
primary responsibility to enforce these EPA noise emissions standards 
and may take measurements when aware of a specific issue. See 49 CFR 
part 210.
    The Infrastructure Investment and Jobs Act authorizes the Secretary 
of Transportation, in consultation with EPA, to prescribe regulations 
governing railroad-related noise emissions for trains operating on the 
general railroad system at speeds greater than 160 miles per hour (high 
speed train noise emissions). FRA and EPA are currently coordinating to 
develop appropriate regulations.
    Generally, there are no federal regulations for vibrations caused 
by railroads that affect communities. However, noise and vibrations 
from train operations may indicate a railroad safety mechanical or 
structural issue that FRA can address, such as a broken rail. Further, 
when providing funds for railroad projects, FRA also assesses the 
potential for noise and vibration impacts as part of compliance with 
the National Environmental Policy Act.

    Question 1.b. What are the most cost-effective methods to reduce or 
mitigate train noise and vibration near homes, and does the FRA have 
the authority to require railroads to implement such methods?
    Answer. There are various forms of noise and vibration mitigation 
methods (e.g., source controls, path controls, and receiver controls). 
A source control method essentially modifies the source of the noise 
(e.g., the equipment), while a path control method generally involves 
the use of a sound barrier, and a receiver control method usually 
involves building insulation. What method of mitigation is effective 
and cost-effective in any particular circumstance would involve 
extensive study, analysis, and engineering. Outside of regulating 
certain aspects of train horn noise (49 CFR Part 222), as noted above, 
FRA's authority as related to noise and vibrations from railroad 
operations is limited to enforcing EPA noise emissions standards; FRA 
has no authority to require railroads to implement specific noise 
control methods.

  Questions from Hon. Seth Moulton to Hon. Amit Bose, Administrator, 
                    Federal Railroad Administration
                    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Question 1.a. From 2000 to the mid-2010s, per the above graphic, 
the derailments per million train-miles dropped, from around 2.9 to 
1.75. But that progress largely leveled off and beginning in 2016, we 
saw year-over-year increases in the rate of train derailments per 
million train-miles through 2019. According to this data, for 2021, we 
sit at 2, still above the 2013 low. Coincident with this increase are 
massive slashes in workforce by Class I's: between 2015 and 2021, total 
workforce declined nearly one third. Putting these two statistics 
together, we can see that rate of train derailments increased at 
exactly the same moment Class I's began cutting their workforce.
    What effect has precision scheduled railroading (PSR) had on the 
number of workers employed by the Class I railroads?
    Answer. PSR refers to the concepts documented in the 2005 book 
written by E Hunter Harrison titled ``How We Work and Why: Running a 
Precision Railroad.'' FRA is aware of the management concepts depicted 
in this book and that some Class I railroads have implemented some of 
the concepts. It is important to note that based on FRA's observations, 
each railroad has implemented PSR in different ways. But FRA has not 
conducted any formal analysis to determine which railroads adopted each 
assortment of PSR concepts and to what degree each management concept 
was executed.
    FRA has, based on feedback from our field staff, monitored the 
operating changes implemented by railroads and any resulting compliance 
issues with our regulations. These operational changes have included 
reductions in workforce (staff and supervisors), closing/consolidation 
of yards, reductions in locomotive fleet size, and changes to 
operations to minimize the idle time of railroad assets, including 
longer trains.
    It should be noted that FRA regulations do not limit railroads 
making the above operational changes, but our regulations require 
railroads to adequately train staff to ensure tasks are performed 
safely.
      For example, FRA's engineer and conductor certification 
regulations (240/242) are performance regulations that require 
railroads to provide extensive classroom and on the job training, in 
order to ensure staff are able to safety perform their safety critical 
tasks. These performance regulations also require supervisor monitoring 
of the execution of these tasks.
      PSR operational changes, such as reduction in workforce 
(including reduction in the number of supervisors) and longer trains 
(which requires additional training on in-train-forces), may require 
adjustments to training courses to maintain the quality of training 
provided by railroads to their employees. In some cases, FRA has 
observed inadequate training and has taken appropriate action.

    FRA has observed that the PSR changes are usually implemented very 
quickly, and in some cases, these operational changes have not been 
managed adequately. In these cases, a short term up-tick in safety 
incidents has been observed, none of which have been serious incidents. 
FRA has routinely addressed these incidents through its program of 
focused inspections and enforcement.
    FRA has provided the above information and details to the U.S. 
Government Accountability Office as they perform a study on PSR 
requested in May 2021 by T&I Chair DeFazio and T&I Rail and Pipelines 
Subcommittee Chair Payne.
    FRA has analyzed, by craft, available railroad industry employment 
data (the Surface Transportation Board collects and maintains this 
data). Although, FRA has not directly analyzed the effect PSR has had 
on the number of workers employed by the Class I railroads, STB's data 
indicates that a marked reduction in employment numbers correlates with 
the COVID-19 pandemic. Accordingly, we cannot say for certain that the 
current employment numbers can only be attributed to PSR.

    Question 1.b. PSR is based on the preeminence of lowering operating 
ratios. Railroads have made it clear that they are responding to 
shareholder pressure in implementing it. How are today's Class I's 
balancing safety, customer service, and stock performance?
    Answer. PSR encompasses many aspects of safety and operations, and 
is designed with railroads' goals of optimization and efficiency in 
operation. FRA's mission is safety. As such, FRA is concerned with any 
potential safety impacts of PSR, and accordingly, FRA has conducted an 
analysis of the operational and process changes that seem to have 
resulted from railroad's implementation of PSR, as detailed in the 
previous question.
    FRA's analysis, as referenced above, included a detailed review of 
safety data over the last ten (10) years for Class I freight railroads. 
Although this analysis did not identify any long-term impact on safety 
within the timeframe of railroad's reported implementation of PSR, the 
analysis did indicate that there may be short-term safety issues, such 
as:
      Changes in yard operations, from hump yards to flat 
switching, has resulted in an increase in incidents; and
      Changes in rules relating to mounting and exiting 
equipment while moving also resulted in an increase in injuries.

    In response to these findings, FRA initiated a series of focused 
inspections to identify safety issues and engage with railroads to 
address these safety issues. FRA is also performing system level audits 
of railroads, which includes a detailed review of safety incidents and 
accidents.
    FRA also notes that the reduction in fleet size that seems to be a 
result of PSR has led to the retirement of older mechanical equipment 
as part of operational optimization.

    Question 1.c. PSR includes the operation of longer and heavier 
trains, so even holding steady on derailments per million train-miles 
could result in more disruptive and devastating derailments. What are 
Class I railroads doing to mitigate derailments and the effects of 
those derailments on the surrounding communities?
    Answer. All railroads, including Class I railroads, must comply 
with all applicable rail safety regulations. Class I railroads have 
successfully implemented positive train control (PTC), as mandated by 
statute, and many Class I railroads are also undertaking voluntary 
efforts to upgrade their PTC and other train control systems to provide 
additional functionality not required by statute. In addition to the 
safety benefits of PTC, the significant improvements in railroad 
communications required by PTC also benefits, in some locations, the 
communications between a locomotive and a train's end of train device 
that is used to acuate the brakes from the rear of the train.
    Class I railroads also work with local governments and first 
responders to share information, train, and prepare for rail 
emergencies. For example, the rail industry maintains the AskRail app 
that provides first responders with immediate access to data about what 
type of hazardous material is being transported in particular railcars 
so responders can make informed decisions about emergency response, 
should an accident occur.

   Questions from Hon. Dina Titus to Hon. Amit Bose, Administrator, 
                    Federal Railroad Administration

    Question 1.a. In Ms. Sanborn's testimony, she expresses displeasure 
that the FRA denied her railroad's request for a waiver to reduce the 
frequency of manual inspections where Automated Track Geometry 
Measurement Systems (ATGMS) is in use.
    Do the current regulations prohibit the use of ATGMS?
    Answer. No. Current regulations do not prohibit or limit a 
railroad's use of ATGMS or any other emerging inspection technology, as 
long as it can run in conjunction with current regulations. Current 
regulations prohibit railroads from decreasing visual track inspections 
below the minimum of FRA's track safety standards regardless of their 
use of ATGMS or any other track inspection technology.

    Question 1.b. Is there anything standing in the way of the 
railroads increasing the frequency with which they inspect tracks using 
ATGMS?
    Answer. From a regulatory perspective, no, there is nothing 
standing in the way of the railroads increasing the frequency with 
which they inspect tracks using ATGMS or any other inspection 
technology. However, ATGMS cannot replace the visual inspections 
required by FRA's regulations. FRA's track safety standards are the 
minimum safety requirements, but railroads may adopt higher standards 
of inspection and maintenance.

      Questions from Hon. Brian K. Fitzpatrick to Hon. Amit Bose, 
             Administrator, Federal Railroad Administration

    Question 1. Last December, the Biden Administration announced its 
Trucking Action Plan to help that industry remedy its workforce 
shortage and address the supply chain crisis. Similar shortages in the 
rail industry are actively endangering and overburdening already 
fatigued crews.
    What, if any, specific steps are the Administration or the FRA 
taking to address the rail workforce shortfall?
    Answer. As Administrator Bose indicated in his recent Congressional 
testimony, FRA has renewed its focus on the development of the rail 
industry workforce. FRA believes that with the IIJA's unprecedented 
investment into our Nation's rail infrastructure, as well as support 
for continued innovation and technological advancements, it is critical 
to ensure the industry's workforce is properly educated and trained. 
Examples of FRA's actions include the publication of draft guidance for 
grantees to ensure industry employee jobs are adequately protected from 
potential adverse impacts of federally funded projects. In addition, 
FRA's 2023 budget request outlines an FRA initiative to establish a 
Railroad Workforce Development program with dedicated funding within 
the Consolidated Rail Infrastructure and Safety Improvements program.

    Question 2. In my district there are two frequently blocked rail 
crossings (Bellevue and Woodbourne) that pose a danger to public 
safety, cut off our communities from vital commercial services, and 
severely impact our first responders' ability to respond to 
emergencies. Collecting data on these interruptions is critical to 
preventing them.
    Has the FRA experienced any difficulty or delays in establishing 
the Blocked Crossing Portal authorized by the Infrastructure Investment 
and Jobs Act?
    Answer. To date, FRA has not experienced any difficulties or delays 
in establishing the Blocked Crossing Portal authorized by the IIJA. The 
portal went live in late 2019, prior to the passage of the IIJA, and as 
the IIJA requires, FRA is currently working to modify the portal to 
collect data regarding the causes of blocked crossings. This 
modification requires approval of the Office of Management and Budget 
under the Paperwork Reduction Act (PRA). Accordingly, FRA published the 
required PRA public notices on April 1, 2022, and July 11, 2022 (87 FR 
19176; 87 FR 41166). Before OMB can take action on the modification, 
they must accept and consider public comment for thirty days after the 
second Federal Register notice is published. Once approved by OMB, FRA 
will implement the changes to the portal consistent with the IIJA. 
Furthermore, FRA published a Request for Information on June 14, 2022, 
requesting public comments on how FRA's engagement with affected 
parties and changes to the portal and related operations can improve 
the effectiveness of the portal.

Question from Hon. Peter A. DeFazio to Hon. Thomas B. Chapman, Member, 
                  National Transportation Safety Board

    Question 1. All seven of the Class I railroads have implemented 
some form of precision scheduled railroading (PSR), which focuses on 
driving profits to shareholders by reducing expenses such as important 
capital assets and workers. By the end of 2021, the Class I railroads 
(excluding Amtrak) cut the average size of their workforce by nearly 
one-third compared to the average total in 2015, according to 
employment data they report to the Surface Transportation Board.
    During the September 2020 NTSB Board Meeting on the 2019 collision 
of two CSX freight trains in Carey, Ohio, was there discussion about 
safety impacts caused by the cuts to CSX's workforce?
    Answer. The NTSB determined the probable cause of the Carey, Ohio, 
collision was the failure of the striking train's engineer to respond 
to the signal indications requiring him to slow and stop the train 
because of his impairment due to the effects of alcohol. Contributing 
to the collision was the design of the positive train control (PTC) 
system, which allowed continued operation in restricted mode on the 
main track.
    Among the conclusions from the investigation, we found that CSX 
Transportation's drug- and alcohol-testing programs, the shortcomings 
of which were also documented in the Federal Railroad Administration's 
(FRA's) audits of the programs, failed to deter the striking train 
engineer's illegal use of marijuana and consumption of alcohol, which 
impaired his performance while on duty and operating the train. 
Specifically, the striking engineer had not been randomly tested for 
drugs since 2009. In a May 2019 audit, the FRA indicated concern that, 
overall, CSX's alcohol- and drug-testing program was not functioning at 
an acceptable level of compliance and efficiency. FRA auditors observed 
numerous instances where CSX field managers were unavailable to 
schedule testing or did not schedule testing to ensure that random 
selections were completed.
    In addition, we found that CSX Transportation's PTC training 
program did not include particular emphasis on using restricted mode 
specific to its limitations enforcing restrictive signal aspects, 
encroachment into an established work zone, and movement through an 
improperly lined switch. Adequate training and managerial oversight are 
essential for ensuring that rules and procedures for safely operating 
PTC systems in restricted mode are followed correctly.
    During the Board meeting to consider the Carey report, then-Member 
and now NTSB Chair Jennifer Homendy asked the investigator-in-charge 
and the group chairman of operating practices, another investigator, if 
precision scheduled railroading (PSR) had an impact on safety. The 
investigator stated that PSR did have an impact on safety, specifically 
citing training concerns given cuts in the number of CSX road 
foreperson positions, because these employees might have provided 
feedback on whether the PTC training program was effective and working 
correctly.
    In addition, Member Homendy cited a phone conversation that she and 
staff from the NTSB's Office of Railroad, Pipeline, and Hazardous 
Materials Investigations had with the FRA that indicated that workforce 
cuts at CSX had resulted in lack of follow-up on scheduling random drug 
testing because CSX was sending scheduling emails to people that were 
no longer with the railroad.

  Questions from Hon. Seth Moulton to Hon. Thomas B. Chapman, Member, 
                  National Transportation Safety Board
                  
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Question 1.a. From 2000 to the mid-2010s, per the above graphic, 
the derailments per million train-miles dropped, from around 2.9 to 
1.75. But that progress largely leveled off and beginning in 2016, we 
saw year-over-year increases in the rate of train derailments per 
million train-miles through 2019. According to this data, for 2021, we 
sit at 2, still above the 2013 low. Coincident with this increase are 
massive slashes in workforce by Class I's: between 2015 and 2021, total 
workforce declined nearly one third. Putting these two statistics 
together, we can see that rate of train derailments increased at 
exactly the same moment Class I's began cutting their workforce.
    What effect has precision scheduled railroading (PSR) had on the 
number of workers employed by the Class I railroads?
    Question 1.b. PSR is based on the preeminence of lowering operating 
ratios. Railroads have made it clear that they are responding to 
shareholder pressure in implementing it. How are today's Class I's 
balancing safety, customer service, and stock performance?
    Question 1.c. PSR includes the operation of longer and heavier 
trains, so even holding steady on derailments per million train-miles 
could result in more disruptive and devastating derailments. What are 
Class I railroads doing to mitigate derailments and the effects of 
those derailments on the surrounding communities?
    Answers to Questions 1.a., 1.b., & 1.c. These are thoughtful 
questions; however, we at NTSB do not consider ourselves well-
positioned to offer responses. As the federal agency tasked with 
determining the probable cause of significant transportation accidents, 
our focus is on the investigatory process and the factors contributing 
to specific and often tragic events. With respect to identifying or 
responding to broader industry trends, we defer to the FRA as the 
regulator. Some elements of these questions might also be addressed to 
the operators themselves.

   Question from Hon. Dina Titus to Hon. Thomas B. Chapman, Member, 
                  National Transportation Safety Board

    Question 1. Your Safety Recommendation report following the Fort 
Worth, Texas, and Draffin, Kentucky, derailments mentions that cars 
positioned at the rear of a train have a lower probability of being 
derailed which also lowers the probability of releasing hazardous 
materials in the unfortunate event of a derailment.
    Has the NTSB considered making recommendations to the FRA or PHMSA 
regarding the positioning of cars carrying hazardous materials?
    Answer. As a result of those investigations referenced in your 
question, we recommended that the Association of American Railroads 
(AAR), the American Short Line and Regional Railroad Association 
(ASLRRA), and the Renewable Fuels Association (RFA) develop and adopt 
guidelines and recommended practices for the systematic placement of 
the most vulnerable tank cars in high-hazard flammable trains, such as 
unmodified US Department of Transportation-111 tank cars, in positions 
of trains where they are least likely to derail or to sustain 
mechanical damage from the effects of trailing tonnage or collision in 
an accident (Safety Recommendation R-20-27). ASLRRA and the RFA have 
implemented the recommendation, but it remains classified ``Open--
Unacceptable Response'' to the AAR.
    Previously, we had recommended that the Pipeline and Hazardous 
Materials Safety Administration (PHMSA) evaluate the risks posed to 
train crews by hazardous materials transported by rail, determine the 
adequate separation distance between hazardous materials cars and 
occupied cars to ensure train crews are protected during both normal 
operations and accident conditions, and collaborate with the FRA to 
revise the regulations to reflect those findings (Safety Recommendation 
R-17-1). That recommendation is currently classified ``Open--Acceptable 
Response,'' as PHMSA has initiated a research project in coordination 
with the John A. Volpe National Transportation Systems Center to 
address the issue. We understand that the Volpe Center is in the 
process of finalizing a report. In the meantime, we recommended that 
PHMSA require that all trains have a minimum of five buffer cars 
between any crew-occupied equipment and cars carrying hazardous 
materials, regardless of train length and consist (Safety 
Recommendation R-17-2). PHMSA has responded that it does not plan to 
take this interim action, and the recommendation is classified ``Open--
Unacceptable Response.''

   Questions from Hon. Donald M. Payne, Jr. to Roy L. Morrison III, 
    Director of Safety, Brotherhood of Maintenance of Way Employes 
            Division, International Brotherhood of Teamsters

    Question 1. Your testimony states that visual inspections conducted 
by human track inspectors can identify track defects than cannot be 
identified by autonomous track geometry measurement systems.
    Have your members identified defects that were missed by automated 
track inspection technology inspecting the same track? If so, can you 
share an example?
    Answer. BMWED has been collecting this information for several 
years to be used in different settings. To provide the most 
comprehensive answer, all the responses we have gathered have been 
provided.
      Section 1--Track inspection survey conducted from July 13, 2022, 
to July 18, 2022
      Section 2--Track inspectors' declarations used in BNSF Lawsuit
      Section 3--Track Inspector Statements

    This report is the most complete and up-to-date collection of this 
data.
    [Editor's note: The 106-page report is retained in committee 
files.]vic

  Questions from Hon. Dina Titus to Roy L. Morrison III, Director of 
     Safety, Brotherhood of Maintenance of Way Employes Division, 
                 International Brotherhood of Teamsters

    Question 1.a. With the rail workforce having been cut by one-third 
in recent years, it gives me pause that railroads are requesting 
waivers from the FRA to reduce manual track inspections.
    Are there track defects that cannot be identified by Automated 
Track Geometry Measurement Systems (ATGMS) or other automated track 
inspections (ATI) technologies?
    Answer. BMWED has broken this answer into two parts.
      Section 1--Is a table created by BMWED using 49 CFR Part 213 
Track Safety Standards Defect Codes Subpart A to F.
      Section 2--Is real examples of FRA-reported Accidents from 2016-
September 2021. Using the same defect codes, BMWED broke the real work 
FRA-reported accidents into those that ATI/ATGMS can detect and those 
it does not.
Section 1:
Key: Y=Inspected for      N=Not inspected for

----------------------------------------------------------------------------------------------------------------
                                             FRA Defects              Human Visual                 ATI
----------------------------------------------------------------------------------------------------------------
Sub Part B...........................  Roadbed
----------------------------------------------------------------------------------------------------------------
                                       213.33--Drainage.......  Y......................  N
                                       213.37--Vegetation.....  Y......................  N
----------------------------------------------------------------------------------------------------------------
Sub Part C...........................  Track Geometry
----------------------------------------------------------------------------------------------------------------
                                       213.53--Gauge..........  Y......................  Y
                                       213.57--Curves,          Y......................  Y
                                        Elevations, and speed
                                        limitations.
                                       213.55--Track alinement  Y......................  Y
                                       213.59--Elevation of     Y......................  Y
                                        curved track; runoff.
                                       213.63--Track surface..  Y......................  Y
                                       213.65--Combined track   Y......................  Y
                                        alinement and surface
                                        deviations.
----------------------------------------------------------------------------------------------------------------
Sub Part D...........................  Track Structure
----------------------------------------------------------------------------------------------------------------
                                       213.103--Ballast;        Y......................  N
                                        general.
                                       213.109--Crossties.....  Y......................  N
                                       213.113--Defective       Y......................  N
                                        rails.
                                       213.115--Rail end        Y......................  N
                                        mismatch.
                                       213.121--Rail joints...  Y......................  N
                                       213.122--Torch cut rail  Y......................  N
                                       213.123--Tie plates....  Y......................  N
                                       213.127--Rail fastening  Y......................  N
                                        systems.
                                       213.133--Turnouts and    Y......................  N
                                        track crossings
                                        generally.
                                       213.135--Switches......  Y......................  N
                                       213.137--Frogs.........  Y......................  N
                                       213.139--Spring rail     Y......................  N
                                        frogs.
                                       213.141--Self-guarded    Y......................  N
                                        frogs.
                                       213.143--Frog guard      Y......................  N
                                        rails and guard faces;
                                        gage.
----------------------------------------------------------------------------------------------------------------
Subpart E............................  Track Appliances and Track-Related Devices
----------------------------------------------------------------------------------------------------------------
                                       213.205--Derails.......  Y......................  N
----------------------------------------------------------------------------------------------------------------
Non-Regulatory
----------------------------------------------------------------------------------------------------------------
                                       Trespassers............  Y......................  N
                                       Vandalism..............  Y......................  N
                                       Track Obstructions.....  Y......................  N
                                       Right of Way...........  Y......................  N
----------------------------------------------------------------------------------------------------------------
 Table data consistent with industry raw data available in the Federal Register under ATI test raw data.
 Editor's note: The color-coded key in the original document has been adjusted to accommodate a black and white
  printing format.

Section 2: Actual FRA Reported Accidents

                              Non-Geo Detectable Track Caused Accident 2016-09/2021
----------------------------------------------------------------------------------------------------------------
                                                      Total          Type of           Reportable       Casualt
                 Specific causes:                 --------------------------------------------------------------
                                                    Cnt    %   Coll   Der    Othr     Amount      %    Kld  Nonf
----------------------------------------------------------------------------------------------------------------
T002--Washout/rain/slide/etc. dmg--track.........     30  1.1     -     28      2   24,519,482    4.6    0     8
T099--Other roadbed defects......................      9  0.3     1      8      -    1,234,563    0.2    0     1
T104--Disturbed ballast section..................      1    0     -      1      -      905,230    0.2    0     0
T105--Insufficient ballast section...............      4  0.1     -      4      -    2,993,059    0.6    0     1
T201--Bolt hole crack or break...................     33  1.2     -     33      -   12,407,169    2.4    0     0
T202--Broken base of rail........................     90  3.3     -     90      -   24,838,850    4.7    0     0
T203--Broken weld (plant)........................      4    1     -      4      -      818,221    0.2    0     0
T204--Broken weld (field)........................     21  0.8     -     21      -   15,327,381    2.9    0     6
T205--Defective or missing crossties.............     60  2.2     -     60      -    6,512,483    1.2    0     0
T206--Defect/missing spike--oth rail fastener....     51  1.8     -     51      -    4,631,020    0.9    0     0
T207--Detail fracture--shelling/head check.......    261  9.5     1    258      2   69,816,123   13.2    0     2
T208--Engine burn fracture.......................      4  0.1     -      4      -    1,549,268    0.3    0     0
T210--Head and web sep (outside jt bar limit)....     98  3.6     -     97      1   14,351,128    2.7    0     1
T211--Head & web separation--in jt bar limit.....     14  0.5     -     14      -    3,412,978    0.6    0     0
T212--Horizontal split head......................     27    1     -     27      -    2,948,232    0.6    0     0
T213--Joint bar broken (compromise)..............      8  0.3     -      8      -    2,863,309    0.5    0     0
T214--Joint bar broken (insulated)...............      2  0.1     -      1      1       71,867    0.0    0     0
T215--Joint bar broken (noninsulated)............     11  0.4     -     11      -    5,635,261    1.1    0     2
T216--Joint bolts, broken, or missing............      8  0.3     -      8      -    1,247,945    0.2    0     0
T217--Mismatched rail-head contour...............     15  0.5     -     15      -    1,046,549    0.2    0     7
T219--Rail defect with joint bar repair..........      5  0.2     -      5      -    2,643,693    0.5    0     0
T220--Transverse/compound fissure................     99  3.6     -     98      1   28,307,850    5.4    0     0
T221--Vertical split head........................    102  3.7     -    102      -   23,500,880    4.5    0     1
T222--Worn rail..................................     17  0.6     -     17      -    2,782,656    0.5    0     0
T223--Rail Condition--Dry rail, freshly ground...      2  0.1     -      2      -       31,606    0.0    0     0
T299--Other rail and joint bar defects...........     27    1     -     27      -   12,282,650    2.3    0     2
T301--Derail, defective..........................      2  0.1     -      2      -      122,867    0.0    0     0
T303--Guard rail loose/broken or mislocated......     16  0.6     -     16      -      685,590    0.1    0     0
T304--Railroad crossing frog, worn or broken.....      2  0.1     -      2      -      252,961    0.0    0     0
T305--Retarder worn, broken, malfunctioning......      5  0.2     1      3      1      362,701    0.1    0     0
T306--Retarder yard skate defective..............      1    0     -      1      -       45,259    0.0    0     0
T307--Spring/power swtch mech. malfunction.......     14  0.5     -     14      -    5,577,472    1.1    0     1
T308--Stock rail worn, broken, disconnected......     11  0.4     -     11      -    5,480,032    1.0    0     0
T309--Switch (hand op) stand mechanism defect....     18  0.7     -     18      -    1,439,620    0.3    0     0
T310--Swtch connect/operate rod broke/defect.....      9  0.3     -      9      -      478,598    0.1    0     0
T311--Switch damaged or out of adjustment........     81  2.9     -     81      -    4,795,983    0.9    0     0
T312--Switch lug/crank broken....................      6  0.2     -      6      -    1,368,739    0.3    0     0
T313--Switch out of adj. insuff. anchoring.......     12  0.4     -     12      -    1,166,285    0.2    0     1
T314--Switch point worn or broken................    167  6.1     -    165      2    8,574,779    1.6    0     4
T315--Switch rod worn, bent, broken, etc.........      8  0.3     -      8      -    2,053,332    0.4    0     0
T316--Turnout frog (rigid) worn, or broken.......     14  0.5     -     14      -      481,623    0.1    0     0
T317--Turnout frog (self guarded)--worn/broken...      6  0.2     -      6      -      188,311    0.0    0     0
T318--Turnout frog (spring) worn, or broken......      6  0.2     -      6      -      908,975    0.2    0     0
T319--Switch pt gap (btwn swt pt & stock rail)...     74  2.7     1     73      -    4,913,176    0.9    0     4
T399--Oth frog, switch, trk appliance defect.....     44  1.6     -     42      2    8,073,381    1.5    0     1
T402--Flangeway clogged..........................     12  0.4     -     12      -      766,565    0.1    0     0
T403--Engineering design or constructi...........     35  1.3     1     33      1    3,804,717    0.7    0     0
T404--Catenary system defect.....................     80  2.9     -      -     80    2,824,359    0.5    2     2
T499--Other way and structure defect.............     17  0.6     -      9      8    3,284,047    0.6    0     0
                                                  --------------------------------------------------------------
  Total..........................................   1643  ...     5   1537    101  324,328,825  .....    2    44
  Average........................................  .....  1.2  ....  .....  .....  ...........    1.2  ...  ....
----------------------------------------------------------------------------------------------------------------


                                Geo Detectable Track Caused Accident 2016-09/2021
----------------------------------------------------------------------------------------------------------------
                                                     Total      Type of Accident    Reportable Damage   Casualt
                Specific causes:                ----------------------------------------------------------------
                                                  Cnt     %    Coll   Der    Othr     Amount      %    Kld  Nonf
----------------------------------------------------------------------------------------------------------------
T001--Roadbed settled or soft..................    106    3.8     1    105      -   38,503,433    7.3    0     1
T101--Cross level of track irregular (joints)..     54    2.0     -     54      -    5,213,418    1.0    0     0
T102--Cross level track irreg. (not at joints).     73    2.6     -     72      1   15,652,469    3.0    0     1
T103--Deviate frm uniform top of rail profile..     23    0.8     -     22      1    1,462,142    0.3    0     0
T106--Superelevation improper, excessive, etc..     22    0.8     -     21      1    3,689,249    0.7    0     0
T107--Superelevation runoff improper...........      5    0.2     -      5      -      200,027    0.0    0     0
T108--Trk alignmnt irreg--not buckled/sunkink..     54    2.0     -     54      -   25,232,743    4.8    0     0
T109--Track alignment irreg (buckled/sunkink)..     78    2.8     -     78      -   47,787,616    9.1    0    10
T110--Wide gage (defective/missing crossties)..    444   16.1     -    443      1   34,680,276    6.6    0     1
T111--Wide gage (spikes/other rail fasteners)..    142    5.2     1    140      1   17,198,157    3.3    0     0
T112--Wide gage (loose, broke, etc, gage rods).     17    0.6     -     17      -    1,065,358    0.2    0     0
T113--Wide gage (due to worn rails)............     43    1.6     -     43      -    3,229,801    0.6    0     7
T199--Other track geometry defects.............     42    1.5     -     42      -    5,750,204    1.1    0     0
T401--Bridge misalignment or failure...........     11    0.4     -      8      3    3,901,921    0.7    0     0
                                                ----------------------------------------------------------------
  Total........................................   1114  .....   2.0   1104      8  203,566,814  .....    0    20
  Average......................................  .....    2.9  ....  .....  .....  ...........    2.8  ...  ....
----------------------------------------------------------------------------------------------------------------


    Question 1.b. What safety implications may occur due to less 
frequent manual track inspections?
    Answer:
   Automated Track Inspection Machines and Human Track Inspections--
 Reduction in Human Track Inspections Is Not Necessary for the Testing 
     or Use of Automated Track Inspection; and Reductions in Human 
                       Inspections Are Dangerous
    The Association of American Railroads (AAR) has written to the 
Federal Railroad Administration (FRA) complaining that the FRA has not 
renewed or extended waivers and test programs that utilize automated 
track inspection machines. AAR implies that the FRA is somehow impeding 
the railroads' use of this technology and somehow depriving them of the 
ability to operate this equipment. The railroads do not need waivers or 
suspensions of regulations to test or use the track inspection 
machines.
    No current regulation prohibits the use of such equipment. The 
waivers and suspensions of regulations sought by the railroads concern 
the frequency of human track inspections that are required to ensure 
track safety. The waivers and suspensions allow the railroads to reduce 
human track inspections and to substitute machine inspections for human 
inspections. While the machines can augment the work of human track 
inspectors, they are not a substitute for inspections performed by a 
person; and replacing these inspections with machine inspections makes 
the railroads less safe, not safer.
    The Track Safety Standards (TSS) ``prescribe minimum safety 
requirements for railroad track that is part of the general railroad 
system of transportation.'' The regulation at 49 CFR 213.233 mandates 
specific minimum frequencies of human visual track inspections 
depending on the track type. The regulation also requires immediate 
remediation of track defects, which track inspectors can do, but not by 
machines. Reduction of the regulatorily required human railroad 
infrastructure inspections was not and is not ``necessary'' to increase 
the use of any automated track inspection (ATI) technology. There is 
nothing about the use of the automated equipment that precludes 
continued human visual inspections required in Sec. 213.233. ATI 
technology is not new. Most if not all of the American Class 1 
railroads (referred to as Industry from this point forward) have been 
using some form of this technology since the 1970s. This technology has 
supplemented human track inspections for decades. But there is no 
technology currently available to inspect for all the defects the FRA 
Track Safety Standards require that a human inspector inspects.
    TSS regulation Section 49 CFR 213.233 requires that railroad track 
inspections must be performed by a person who is designated as 
qualified to perform track inspections under 49 CFR 213.7, which, in 
turn, requires that the person must demonstrate that he or she knows 
and understands all requirements of Section 213.7 that apply to the 
inspection of the track for which he or she is responsible. Track 
Inspectors must be able to detect deviations from those requirements 
and to prescribe and take appropriate and immediate remedial actions to 
correct or safely compensate for deviations from TSS requirements. 49 
CFR 213.233.
    Under 213.233, the following items need to be inspected to perform 
adequate track inspections: Roadbed (drainage and vegetation); Track 
Geometry (track gauge, track alignment, curves; elevation and speed 
limitations); Track Surface (combined track alignment and surface 
deviations); Track Structure (ballast, crossties, defective rails, rail 
end mismatch, continuous welded rail, rail joints, tie plates, rail 
fastening systems, switches, and derails); Automotive or Railroad 
crossings at grade; and Right of way (trespassers, suspicious items, 
vandalism). A qualified Track Inspector is expected to look 
simultaneously for all these sorts of track defects and to consider 
whether deviations or deformities in these categories that might not 
constitute defects on their own together include conditions that 
require corrections.
    It is important to note that although all the defects discovered 
using ATI can be found by a Sec. 213.7 Qualified Human Track Inspector 
using long-established visual track inspection techniques. Only 
approximately a quarter of all Sec. 213 track defects found by Track 
Inspectors are detected by using an ATI inspection system.
    BMWED agrees that ATI improves track geometry defect detection 
through means and methods that have far better reliability and accuracy 
than human in-person visual inspections conducted by a person walking 
or hi-railing track. Track geometry defects, particularly changes in 
gauge, are one of the leading track causes of derailment in the US. 
But, as we have explained, they are not the only types of track and 
right-of-way defects that the railroads must use for screening. And 
while a Track Inspector can immediately remedy some track defects, call 
in local maintenance of way forces to repair a defect, or place a 
``slow order'' on a track defect, use of a machine that reports data to 
a remote location where it will be reviewed with a Track Inspector 
later sent to check on the reported defect does not result in immediate 
remediation of the defect. Therefore, the industry should voluntarily 
adopt a higher ATI frequency than currently required while maintaining 
TSS human visual frequency of inspection requirements. BMWED also feels 
FRA should clearly state that increased ATI frequencies are to 
supplement, not replace, the TSS human visual inspection frequencies.
    U.S. railroads play a vital role in our nation's economy, and it is 
crucial to keep that rail system moving safely. BMWED recognizes the 
need for safe and reliable railroad infrastructure. We look forward to 
working with FRA/DOT and the industry to find safe ways to improve the 
inspection of our nation's railroad infrastructure.

Questions from Hon. Peter A. DeFazio to Grady C. Cothen, Jr., Retired, 
                    Transportation Policy Consultant

    Question 1. Your whitepaper reviews a host of accidents, both minor 
and fatal derailments; involving extremely heavy and long trains and 
trains that are less heavy and long. You make a compelling case that 
there are common, recurring issues leading to accidents.
    As someone who spent decades at FRA working on rail safety, why are 
you concerned by what you perceive as the Class I railroads' regression 
of management of in-train forces?
    Answer. The safety implications of this practice are, of course, 
considerable. We risk a catastrophic accident involving release of 
hazardous materials, among other scenarios reflected in the White Paper 
provided to the Committee. Even the wreck clearance operations are 
inherently dangerous for workers and disruptive to communities.
    However, I believe the underlying concern is even more serious. It 
appears that the major railroads are willing to undertake operations 
that they know to be unnecessarily problematic for short-term gain. 
With that said, the possibility presents itself that the entire march 
toward safer and more productive rail transportation, which began with 
the reforms of the late 1970s and the Staggers Rail Act of 1980, could 
be reversed.
    The Nation needs the railroads to grow markets, not shed traffic or 
``collar'' cars. Shippers need the railroads to tailor service to 
individual markets, as much as practical, not just put everything on a 
virtual conveyor belt and hope for the best. Employees, both officers 
and rank and file, need to know there is a future in this industry so 
they will stay in their posts and do their best.
    Railroads need to invest in their future, maintaining a state of 
good repair and preparing their people, equipment and facilities for 
the future. That future should not be a slimmed down network with long 
trains lumbering through newly extended sidings that claimed capital 
better spent elsewhere.

    Question 2.a. During the hearing, Ms. Sanborn, representing Norfolk 
Southern Corporation and AAR's Safety and Operations Management 
Committee, stated that technologies have been developed that benefit 
the handling of longer trains, citing the use of distributed power as 
well as energy management systems, which she described as ``basically 
cruise control systems that operate the train with an eye towards 
managing in-train forces as well as speed and fuel efficiency.''
    Are the Class Is railroads adhering to principles governing the 
proper assignment or placement of locomotives in a train?
    Answer. In the past several years there appear to have been 
numerous instances of long and heavy trains operated without 
locomotives placed properly in train (distributed power locomotives or 
DPUs). This may not have been intended by the operations plan, but it 
clearly happens.

    Question 2.b. Do you have concerns related to the use of, or 
reliance on, the train energy management systems that Ms. Sanborn 
described as capable of managing in-train forces?
    Answer. Train energy management systems have a very legitimate role 
in guiding the use of motive power and dynamic (locomotive only) 
braking to achieve reductions in fuel consumed (and emissions). Used 
with Positive Train Control technology and advanced dispatch systems, 
these systems can achieve ``train pacing'' that may further reduce fuel 
consumption and emissions while distributing traffic efficiently over 
the network. The Federal Railroad Administration was an early research 
sponsor of one of the major energy management systems.
    However, when use of train brakes (``air'' or ``power'' brakes) 
becomes necessary, because of significant grades or undulating 
territory, these systems are generally considered ineffective and, by 
rule or through practice, are generally cut out. The problems arise 
when the systems are relied upon inappropriately or to such an extent 
that crews might become ``de-skilled'' in the management of in-train 
forces. Longer and heavier trains make use of these systems more 
attractive but also more difficult, particularly due to the vagaries of 
data radio links among the locomotives in the train.
    Suppliers and the railroads have ambitions to blend dynamic and 
train braking under the control of train energy management systems. 
This has been tested under ideal conditions but in my judgment will 
prove very unreliable absent the adoption of electronically controlled 
pneumatic brakes.

    Question 3.a. You testified that derailments caused by poor 
management of in-train forces are being reported primarily under 
``human factor'' codes, with the implication that the employee made a 
mistake. You stated that, for the most part, these actually are 
organizational accidents driven by management decisions. You also 
stated that other accidents involving management of in-train forces are 
being reported as equipment-related failures, but that many of such 
failures result from excessive buff and draft forces in poorly 
assembled trains.
    Please describe the importance of correctly capturing reportable 
events.
    Answer. If we can't measure a problem, we can't determine the 
nature or scope of the problem or fashion an efficient remedy. One of 
the issues with any response to the current problems will be an 
evaluation of benefits and costs. In the safety arena, the first 
benefits we look for are the accidents and casualties avoided. There 
are often other benefits, of course, such as avoidance of negative 
``externalities,'' but that is where we start.

    Question 3.b. What can FRA, NTSB, and the railroads do to better 
ensure the root cause of accidents/incidents involving in-train forces 
are identified?
    Answer. Many of the problems with current reporting are simply 
gross factual errors, evident from the conflicts in the reported data. 
My understanding is that FRA is already beginning to work on that 
problem.
    A second concern is the absence of ``cause codes'' and 
supplementary narrative requirements that clearly reflect the specific 
nature of failures in the functioning of new technology and practices. 
The FRA has the Railroad Safety Advisory Committee (RSAC) as an 
available tool to update the reporting system. The RSAC has taken on 
tasks related to the Railroad Accident/Incident Reporting System in 
recent years, but to the best of my knowledge not focusing on 
management of in-train forces.
    I am concerned that the NTSB still seems not to understand the 
genesis of some of the problems we are seeing in the accident data. The 
Board staff is dominated by aviation personnel who are schooled in 
safety management. However, the assumptions underlying safety 
management systems include a belief that a positive safety culture will 
free up the flow of information and insights required to mitigate 
risks. We have seen with the 737 MAX debacle that pursuit of profit can 
poison the safety management process and even thwart a very advanced 
regulatory model. The same sort of thing appears to be happening in the 
railroad industry.
    We can laud safety management and a positive safety culture all we 
want, but that then requires that we be capable of understanding that 
it requires safety to be the preeminent value of the enterprise. When 
that condition is not present, its absence is often relevant to the 
``underlying'' cause of organizational accidents. We can adjust the 
``process'' all we want, but the foundation is still unsound.
    The NTSB does important work, but it has been absent without leave 
with respect to the PSR-driven issues of the past several years. Its 
railroad staff needs to get out of the office between major 
investigations, mingle with officers and employees, and take the 
temperature of the industry. The new NTSB Chairman should be well 
situated to make that happen.

    Question 4. At the hearing, you stated that the immense safety 
progress the Class I railroads had been making has stalled and further 
progress has been arrested due to their commitment to precision 
scheduled railroading (PSR). You spoke clearly about the need for 
countervailing pressures in the form of safety regulations to 
counteract the focus of PSR on rewarding shareholders.
    Do you have recommendations for such countervailing pressures?
    Answer. My White Paper lays out detailed recommendations regarding 
legislative and regulatory action to address this need. The first step 
for FRA is to require railroads to live by their own train make-up 
rules. Then FRA needs to task the RSAC with writing regulations. 
Ideally, the regulations would be built around industry standards and 
capable of adjusting as technology and practices change. The agency 
already knows a good bit about what draft and buff forces, and lateral/
vertical forces, are problematic. So, the physics should be the 
starting point. Both the industry and FRA have train dynamics models 
that can be used to test various train configurations over specific 
routes. They need to be used before, and not just after the accident.
    The Congress will have to back up these actions with a specific 
statutory mandate. Absent that, the regulatory process will bog down. 
If the industry believes it can delay the regulatory process and use 
the courts to stymie necessary actions, industry may not participate 
constructively in the regulatory process.

    Question 5. According to research by the Congressional Research 
Service, in 2020, the seven Class I railroads had combined debt of more 
than $108 billion and combined annual interest expense of nearly $5 
billion.
    As someone who helped the freight railroads through bankruptcies 
and economic deregulation, do you have concerns that the debt and 
annual interest expense of the Class I railroads pose a risk to the 
safety and vitality of the industry?
    Answer. My ``back of the envelope'' looks at this question do give 
me concerns. It appears that much of the long-term debt taken on in 
recent years was used for cash distributions to investors, rather than 
state of good repair or investments in new capital projects. This works 
for a time in a period of high liquidity and very low interest rates. 
However, as interest rates rise to more historically common levels, 
refinancing and repayment could tax railroad cash flows, particularly 
if the railroads have failed to grow their markets in the meantime.
    Railroads are still ``affected with a public interest,'' a point 
driven home by the ``Freight Rail Works'' commercials and other 
industry statements. The worst outcome would be any future requirement 
for public funds to bail out the industry, with the restrictions on 
management discretion and innovation which that would logically entail.
    I have suggested to FRA that the agency, perhaps in partnership 
with STB staff, conduct forward-looking financial analysis directed at 
this question. The analysts would need to frame ``pro forma'' cases 
positing requirements for investment in state-of-good-repair, 
assumptions for railroad traffic levels in various markets, 
fluctuations in the actual cost of capital, sufficiency of cash flow 
after repayment of debt obligations, and perhaps other factors. 
Congress and the Executive will need early warning flags to trigger 
action well before the situation is too far gone.
    At a minimum, USDOT will need to be very careful in assuring that 
any Federal infrastructure spending that goes directly or indirectly to 
the major freight railroads is accompanied by appropriate undertakings 
and assurances. Major freight railroads host Amtrak and commuter 
service. They are required for national defense, and getting more 
traffic off the highway and onto the railroads will be very important 
as we address the climate challenge.
    We should be looking for opportunities for public/private 
partnerships that might involve, as an example, electrification of some 
major freight routes. But there would be no logic in throwing public 
investments into the freight railroad coffers if they will just be paid 
out in excessive cash distributions. Money is fungible.

  Questions from Hon. Seth Moulton to Grady C. Cothen, Jr., Retired, 
                    Transportation Policy Consultant
                    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Question 1.a. From 2000 to the mid-2010s, per the above graphic, 
the derailments per million train-miles dropped, from around 2.9 to 
1.75. But that progress largely leveled off and beginning in 2016, we 
saw year-over-year increases in the rate of train derailments per 
million train-miles through 2019. According to this data, for 2021, we 
sit at 2, still above the 2013 low. Coincident with this increase are 
massive slashes in workforce by Class I's: between 2015 and 2021, total 
workforce declined nearly one third. Putting these two statistics 
together, we can see that rate of train derailments increased at 
exactly the same moment Class I's began cutting their workforce.
    What effect has precision scheduled railroading (PSR) had on the 
number of workers employed by the Class I railroads?
    Answer. The STB keeps detailed statistics on rail employment. It 
seems to be generally accepted that pressure from financial markets has 
led to a reduction in rail employment of about a third from 2015 
forward. Some outsourcing of work has occurred, of course, but the 
appearance to the outside observer is that many very useful management 
and rank and file positions have been cut.

    Question 1.b. PSR is based on the preeminence of lowering operating 
ratios. Railroads have made it clear that they are responding to 
shareholder pressure in implementing it. How are today's Class I's 
balancing safety, customer service, and stock performance?
    Answer. There are many opinions on this issue among close 
observers, but I believe the better arguments are with those who say 
stock performance is clearly elevated above other factors, including 
future growth. It must be said that these are not decisions made by 
traditional railroaders, but rather by arguably ``predatory'' private 
equity that has gained footholds in the board rooms.
    If poor management of in-train forces is a symptom of PSR, then PSR 
is a symptom of the financialization of the American economy. We see 
its effects all around us, of course, and yet we do not make the 
changes in tax policy, or securities law, or even antitrust law, that 
might begin to turn the proverbial battleship. It will take a long time 
to turn, but for the future of our economy we need to begin.

    Question 1.c. PSR includes the operation of longer and heavier 
trains, so even holding steady on derailments per million train-miles 
could result in more disruptive and devastating derailments. What are 
Class I railroads doing to mitigate derailments and the effects of 
those derailments on the surrounding communities?
    Answer. As my prepared statement reflects, railroads have worked 
constructively to reduce track caused accidents and certain equipment 
caused accidents, as well. The operational hazards are less well 
managed. These are events that, as much as possible, should be 
prevented through sound operating practices and appropriate application 
of technology.
    Historically, railroads have been generous in providing training 
for emergency responders in addressing railroad accidents. Hazardous 
material training has been a forte for railroads and major shippers. 
Others would need to address the extent to which this remains true 
today, and to what extent.
    Once an event occurs, railroads generally respond quickly to 
mitigate effects to the extent feasible, clean up the derailment site, 
compensate public entities and private parties that incur direct 
expenses or losses, and work with shippers and local authorities on the 
remediation of any environmental impacts. But secondary and tertiary 
losses will occur that are never reimbursed. The latter are more 
general ``societal costs'' that are difficult to quantify, as a whole.

 Questions from Hon. Peter A. DeFazio to Cynthia M. Sanborn, Executive 
     Vice President and Chief Operating Officer, Norfolk Southern 
  Corporation, and Chair, Safety and Operations Management Committee, 
                   Association of American Railroads

    Question 1. Your written testimony states the industry is concerned 
that FRA will include crew scheduling issues in the scope of the 
Fatigue Risk Management Program rulemaking. However, the 2008 Rail 
Safety Improvement Act mandated that railroads consider scheduling 
practices for employees that reduce fatigue and cumulative sleep loss 
in fatigue management plans. Appropriately, this is reflected in the 
final rule FRA published on June 13.
    Will NS and the industry comply with the statute and FRA's final 
rule and review scheduling practices as part of fatigue risk management 
programs?
    Answer. In the area of fatigue management, as in all other areas of 
rail operations, railroads will act according to their obligations 
under the relevant statutes and regulations. That said, railroads 
continue to believe that the FRA should refrain from interjecting 
itself into this matter and instead allow railroads to continue to 
address scheduling as part of collective bargaining.
    Norfolk Southern and other railroads want properly rested crews. It 
is not in a railroad's best interest to have employees who are too 
tired to perform their duties properly and safely. For that reason, 
railroads have long been reviewing how they operate--including, when 
practical, their scheduling systems--to keep fatigue to a minimum.
    Experts agree that because factors that can result in fatigue are 
multiple, complex, and frequently intertwined, there is no single 
solution to the fatigue problem. That's why railroads work with their 
employees and others to find innovative, scientifically based 
countermeasures to fatigue-related problems. Countermeasures railroads 
have adopted include:
      Increasing the minimum number of hours off duty and 
providing more predictable calling assignments and rest opportunities 
between shifts, as well as devising systems (including web sites, e-
mails, and automated telephone systems) to improve communication 
between crew callers and employees.
      Allowing employees who have been off work more than 72 
hours (e.g., on vacation) to begin their first shift in the morning 
rather than the middle of the night.
      Encouraging confidential sleep disorder screening and 
treatment.
      Offering fatigue education programs for employees and 
their families. Education is critical, because the effectiveness of 
fatigue initiatives depends on the actions of employees while off duty.

    Not every countermeasure is appropriate for every railroad, or even 
for different parts of the same railroad, because circumstances unique 
to each railroad influence the effectiveness and practicality of 
specific countermeasures.
    As I noted in my testimony, scheduling is a complicated issue--
circumstances are different from one railroad to the next, and between 
different parts of the same railroad. Many rail employees do work set 
schedules, such as many of those holding yard or local switching 
assignments. However, some rail employees, such as some train crews, 
work flexible schedules that vary based on a variety of factors. These 
include business levels, the time of the year, and the day of the week. 
Numerous factors, including weather conditions, track maintenance, 
accidents, unexpected employee illnesses, and dozens of other factors 
can affect a given employee's work schedule, thus impacting the time 
other employees will be needed.
    Scheduling policies are typically an important topic within the 
context of collective bargaining. In many cases, collective bargaining 
agreements allow rail employees, especially those with the most 
seniority, to largely determine for themselves when and how many hours 
they work (subject to statutory hours of service maximums). These 
employees' actions, in turn, affect how many hours, and when, less 
senior employees work. This greatly complicates railroads' ability to 
schedule crew assignments.

    Question 2.a. Your written testimony highlights the introduction of 
autonomous trucking as a major competitive change that railroads face. 
And you state that railroads need to avail themselves of technology if 
they want to compete against autonomous trucking.
    Has NS considered autonomous train technologies?
    Question 2.b. Would NS be able to furlough more employees if 
autonomous train technologies are fully deployed?
    Answer to Questions 2.a. & 2.b. Autonomous train technologies would 
only be considered where safety would not be compromised and where they 
make business sense. With an extremely complex system like Norfolk 
Southern's, any transition to autonomous operations will be 
evolutionary.
    While Norfolk Southern cannot at this time predict the ultimate 
level of automation we may achieve, it is clear that automated 
technologies provide the opportunity to realize a safer railroad 
through error reduction and minimization of safety risks.
    Indeed, technology-assisted rail operations is first and foremost 
about making rail operations safer. It can help reduce human error in a 
locomotive cab; better identify defects in track and equipment; and 
minimize the number of human beings in and around rail equipment--all 
ways to reduce accidents and injuries.
    That's why it's imperative that the federal government, 
particularly the FRA, must be a partner with railroads to leverage the 
advantages of technology to improve operations and enhance safety. 
Today, among other things, that means permitting the industry to 
operate with one-person crews, which will not degrade safety and will 
help railroads remain competitive in the freight transportation 
marketplace.
    Railroads will realize risk and error reduction and the attendant 
safety benefits even at less-than-fully autonomous levels of operation. 
Railroads are already implementing semi-autonomous operations with the 
assistance of positive train control (PTC) and are exploring a natural 
expansion of that investment so that safety and efficiency can be 
enhanced moving forward.
    As technology plays increasing roles in rail operations in the 
future, employees will clearly continue to be necessary, but their jobs 
may be different in the future. Reducing the risk of human error 
through technology must continue to be a goal if railroads are to see 
further improvement in safety. Moreover, adoption of technologies will 
not only create a safer workplace. It will also help prevent the loss 
of railroad jobs that will inevitably result if railroads are not able 
to compete with the other transportation modes that are embracing 
autonomy.

    Question 3. The number of rail yard accidents has fluctuated but 
the rate of yard accidents has increased for the calendar years 2013-
2021.
    Does the industry know what is causing or contributing to this 
trend?
    Answer. The number of yard accidents has fluctuated around an 
average number, which continues to be a very small number of accidents 
for the amount of work that occurs in yards. There can be more frequent 
opportunity for accidents involved in switching and other yard 
operations because that is where the train and railcar handling occurs. 
The railroads are very cognizant that this potential exists and they 
constantly work to reduce yard accidents. Railroads have every 
incentive to avoid accidents in yard operations because each accident 
costs resources at the yard, whether in damages, lading, or personnel 
and time--including potential delays to our customers. The steady yard 
accident count but increasing rate is due primarily to the headwinds of 
decreasing train miles in the industry. The FRA rate is determined by 
dividing the number of accidents by million train miles, and the train 
miles for the industry have been steadily declining since 2013 for a 
variety of reasons. The train miles have decreased almost 25% between 
2013 and 2021, and the rate increased by about that same amount.
    There is concern that proposed government policies, such as the 
Surface Transportation's Board's proposals, will tend to increase 
switching activities. Increased switching raises the risk exposure for 
yard personnel, and as such, could contribute to increases in yard 
incidents.

    Question 4. When a Class I railroad has a reportable accident, how 
does it determine when to conduct simulation analysis to determine the 
root cause(s)?
    Answer. When an accident occurs, railroads always want to know why 
so that steps can be taken to make sure it doesn't happen again. When 
the FRA or National Transportation Safety Board initiate an 
investigation, they examine a variety of elements, including physical 
evidence at the accident site, data on speed and train handling from 
event recorders on locomotives, records of maintenance inspections, 
employee training records, and so on. Railroads incorporate the lessons 
learned from those investigations into their practices and procedures. 
Railroads do much the same thing when they are investigating an 
accident. On more complex investigations, a railroad might choose to 
conduct modeling analysis to better understand the circumstances 
associated with the accident.
    Again, though, in all cases, railroads will do their best to 
determine root causes and take steps to prevent reoccurrence.

    Question 5. Do the Class I railroads review whether local-level 
managers and crews are complying with the railroad's train marshalling 
rules? Have there been accidents or incidents where it was determined 
that these rules were not followed?
    Answer. Today, train marshaling rules are generally incorporated 
into computer systems that are used by rail personnel to build trains 
in rail yards. Computer systems can also flag the improper placement of 
cars picked up during a train's tour of duty. In the past, there have 
been accidents associated with the makeup of trains. Railroads 
incorporate this and other information regarding root causes of 
accidents into their efforts to prevent accidents in the future.

    Question 6. In 2019, former FRA Administrator Batory testified to 
the Railroad, Pipelines, and Hazardous Materials Subcommittee that 
railroads participating in the Confidential Close Call Reporting System 
(C3RS) program saw a 41% reduction and a 50% reduction in derailments 
caused by human factors and run-through switches, respectively. His 
testimony also stated that the program improved management-labor 
collaboration on safety improvements and in several instances led to 
more systemic corrective actions. As of February 2022, 21 passenger, 
commuter, and Class II/III freight railroads participate in the 
program; however, no Class I railroad participates currently. The 
Railroad Safety Advisory Committee (RSAC) met in June 2022 and 
considered a task statement to promote the C3RS program.
    If such a task statement is adopted, will the Class I railroads 
robustly participate in the collaborative RSAC process to consider 
greater participation in the C3RS program?
    Answer. Like other railroads, Norfolk Southern has a robust program 
to identify the root causes of accidents and take steps to reduce 
future occurrences. As part of this process, we typically gather and 
analyze tremendous amounts of data and other information. In addition, 
Norfolk Southern has its own close call reporting system. To date, is 
has not been shown that a C3RS program would provide significant 
additional benefits beyond those derived from our existing evaluation 
and accident-prevention efforts.

Question from Hon. Grace F. Napolitano to Cynthia M. Sanborn, Executive 
     Vice President and Chief Operating Officer, Norfolk Southern 
  Corporation, and Chair, Safety and Operations Management Committee, 
                   Association of American Railroads

    Question 1. Ms. Sanborn, thank you for your response to my question 
during the `Examining Freight Rail Safety' hearing and your commitment 
to look further into the issue I raised regarding concerns from the 
Association of State Railroad Safety Managers. Below is the portion of 
their statement regarding railroads attempting to transfer maintenance 
costs for grade crossing projects to local governments.\1\ As a major 
advocate for grade crossing safety improvements, I have strong concerns 
with these costs being passed onto taxpayers, which also has the effect 
of delaying, canceling, or scaling back these important projects. 
Having local governments pay for maintenance is a change from many 
states' statutory requirements and the history of grade crossing 
funding.
---------------------------------------------------------------------------
    \1\ ``Recently there have been attempts by some railroads to pass 
through on-going maintenance costs to local municipalities when new or 
upgraded devices are installed (at grade crossings). There have been 
recent attempts by some railroads to assess annual maintenance fees to 
the local applicant, payable to the railroad in perpetuity, and in some 
cases, under threat of unilateral closure. The projects impacted by 
these actions include crossings which are:
      Upgraded with new signal equipment
      Upgraded from a passive crossing to an active one
      Opened where one did not previously exist
      Altered in such a way that the railroad considers the 
crossing project a new crossing

    As a result, many projects which would be done to enhance grade 
crossing safety, are stalling, or being canceled. In certain 
circumstances, project scopes are being revised to eliminate the 
upgrading, replacement, or installation of gates and lights so as not 
to trigger the maintenance fee requirement. In so doing, aging crossing 
equipment will continue to degrade and ultimately malfunction while 
sourcing repair and replacement parts becomes more difficult. This 
barrier to equipment enhancement compromises the safety of the 
traveling public, to include pedestrians, bicyclists, etc. The actions 
by some railroads to assign maintenance costs to local applicants has 
reversed decades-long cost apportionment practices, as codified in many 
state statutes, which placed the maintenance responsibility on the 
railroad.
    As many crossing projects are tied to Federal Highway 
Administration funding via 23 USC Sec. 130, states are beginning to 
have difficulty obligating these appropriated funds in a timely manner. 
The risk of funds lapsing in any given fiscal year has become a real 
impediment to their use. The strict guidelines governing the scoping 
and use of Sec. 130 funds make it impossible to expand their 
application to other safety priorities, further adding to the challenge 
of fund obligation.''
---------------------------------------------------------------------------
    Can you please work with AAR to reverse course and ensure 
railroads, including the Class I railroads, continue to pay for the 
maintenance costs of these projects?
    Answer. Norfolk Southern has long-standing master agreements with 
some states that cover the allocation of maintenance costs of certain 
grade crossing warning devices, which are sometimes reimbursed with 
state or local funds. Norfolk Southern also requests reimbursement for 
the cost of maintaining specialized equipment that supports the 
operation of quiet zones, such as four-quadrant gates systems. And 
Norfolk Southern typically seeks maintenance reimbursement for private 
crossings per the terms of private crossing agreements. Norfolk 
Southern does not seek reimbursement for maintenance costs unless 
covered by agreement or as otherwise permitted by law.

Questions from Hon. Seth Moulton to Cynthia M. Sanborn, Executive Vice 
 President and Chief Operating Officer, Norfolk Southern Corporation, 
 and Chair, Safety and Operations Management Committee, Association of 
                           American Railroads
                           
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Question 1.a. From 2000 to the mid-2010s, per the above graphic, 
the derailments per million train-miles dropped, from around 2.9 to 
1.75. But that progress largely leveled off and beginning in 2016, we 
saw year-over-year increases in the rate of train derailments per 
million train-miles through 2019. According to this data, for 2021, we 
sit at 2, still above the 2013 low. Coincident with this increase are 
massive slashes in workforce by Class I's: between 2015 and 2021, total 
workforce declined nearly one third. Putting these two statistics 
together, we can see that rate of train derailments increased at 
exactly the same moment Class I's began cutting their workforce.
    What effect has precision scheduled railroading (PSR) had on the 
number of workers employed by the Class I railroads?
    Answer. At a fundamental level, precision scheduled railroading is 
about using assets in the most efficient manner possible without 
sacrificing safety. The benefits associated with PSR--including reduced 
circuity and improved velocity--will directly benefit our customers 
through faster, more predictable transit times that require fewer 
assets to move their shipments.
    At Norfolk Southern, we respectfully disagree that PSR is to blame 
for today's service challenges. Moreover, returning to operating models 
of the past that are more resource intensive and less efficient would 
be counterproductive and likely contribute to service inefficiencies.
    Our competitors in the trucking industry are not moving backward; 
they're not even standing still. They are consistently thinking of new 
ways to leverage technology and to implement operational innovations 
that will improve the customer experience and improve efficiency. 
Railroads must do the same. If railroads are to stay competitive with 
trucks, they cannot return to the old ways of doing things. If they do, 
railroads' greatest advantage over truck--their ability to transport 
enormous amounts of freight extremely efficiently--will begin to erode. 
If that happens, over time there will be less freight on the railroad 
and more on already overstressed highways.
    Far from being out of step with the interest of our customers and 
the public interest, a simplified, efficient railroad operation (which 
is the goal of PSR) promotes network fluidity and a reliable service 
product that's good for rail customers and the public alike.
    Our goal at Norfolk Southern, and I suspect at other railroads too, 
is to create a platform for growth for our customers through a safe and 
efficient operation. I know it is tempting at a time when rail service 
is under pressure to say there must be something wrong with our 
operating model. But at times like these, when the pressure is 
greatest, we must be very careful not to misdiagnose the problem. The 
real problem right now is execution; the problem is not PSR as an 
operating mode. At Norfolk Southern, we are devoting our energies to 
putting the resources in place to solve that problem, rather than 
returning to a way of doing things whose time has passed.

    Question 1.b. PSR is based on the preeminence of lowering operating 
ratios. Railroads have made it clear that they are responding to 
shareholder pressure in implementing it. How are today's Class I's 
balancing safety, customer service, and stock performance?
    Answer. None of the three elements listed--safety, customer 
service, or returning value to shareholders--has to come at the expense 
of the others.
    Safety is paramount. As I noted in my testimony, for Norfolk 
Southern, pursuing safe operations is not optional, it's an imperative. 
We know we have an obligation to operate safely for the benefit of our 
employees, our customers, and the communities where we operate. That 
means that if an operating practice is unsafe, we will change it. If an 
employee acts in an unsafe manner, that will be addressed. If we are 
bringing on new employees, we will not rush the process such that they 
are not properly trained to be able to safely do the work we need them 
to do. We work very hard to instill in our employees a high level of 
safety awareness in everything they do. We also spend enormous amounts 
of capital to expand and enhance the capacity and capability of our 
network; virtually all of those investments directly or indirectly 
improve safety in some way.
    Moreover, an unsafe railroad cannot possibly provide optimal 
customer service. Today, we know our customer service is not what our 
customers want or deserve. Restoring service to where it should be is 
crucial. That entails having the right number of employees, at the 
right location, at the right time to meet demand safely and 
efficiently.
    Allocation of capital in the rail industry starts with investing in 
track, signals, equipment, and technology that improve our ability to 
safely meet our customers' needs. Put another way, the dollars we 
generate are invested back into ourselves first. That said, railroads 
have to be competitive in capital markets. Railroad shareholders must 
be able to expect competitive returns one way or another, or they will 
put their money in investments they think will offer such returns.
    The bottom line is the ability to invest in our networks allows us 
to improve safety, provide the levels of service that our customers 
demand, and create the efficiencies we need to help ensure that our 
economy is competitive in global markets.

    Question 1.c. PSR includes the operation of longer and heavier 
trains, so even holding steady on derailments per million train-miles 
could result in more disruptive and devastating derailments. What are 
Class I railroads doing to mitigate derailments and the effects of 
those derailments on the surrounding communities?
    Answer. Railroads are committed to the safe operation of all their 
trains, no matter the length. Railroads have also adopted a variety of 
new technologies to make their operations safer and more secure. 
Railroads work hard to instill in their employees a high level of 
safety awareness in everything they do, and they work diligently to 
identify new operational enhancements, training, and other ways to 
further improve safety.
    Railroads take numerous steps to help ensure the safety of longer 
trains. For example, railroads only run longer trains where the 
infrastructure can safely handle them. In recent years, railroads have 
upgraded track to enable it to handle longer, heavier trains. Railroads 
have also spent tens of millions of dollars to add new sidings and 
lengthen existing sidings on routes used for longer trains. The longer 
sidings allow trains of various lengths to safely make way for other 
trains.
    Railroads employ sophisticated modeling tools that reliably predict 
the performance of a change in a train's makeup before the train is put 
into service. Railroads also review the past history of a route; 
incorporate lessons learned for the most effective operation of trains 
on that route; and perform supervised ``pilot runs.'' Railroads also 
provide focused training to crews on any new changes.
    Certain technologies have enabled railroads to operate longer 
trains more safely. For example, ``distributed power'' is the placement 
of one or more locomotives at points other than the front of a train. 
These extra locomotives are connected by closed communications systems 
to the head locomotive, operate in a coordinated fashion, and are all 
under the control of the train's engineer. Distributed power 
distributes a train's tension more evenly, reducing the chance that 
couplers that connect cars together will break apart in longer trains. 
Distributed power also can lead to better handling of longer trains on 
hilly and curved terrain, and it allows quicker and more uniform 
application of a train's air brake system. Advanced ``train builder'' 
algorithms can tell railroads exactly where to place locomotives and 
blocks of freight cars within a train to maximize effectiveness.

  Questions from Hon. Dina Titus to Jeremy Ferguson, President, Sheet 
        Metal, Air, Rail, Transportation-Transportation Division

    Question 1. With the rail workforce having been cut by one-third in 
recent years, it gives me pause that railroads are requesting waivers 
from the FRA to reduce manual track inspections.
    What safety implications may occur due to less frequent manual 
track inspections?
    Answer. Overall, the massive reduction of rail employees has 
greatly diminished rail safety. BMWE would be better to answer the 
specifics regarding autonomous track inspections. As operating 
employees, we have a strong reluctance to trust these technologies that 
were originally designed as a safety overlay to enhance worker safety. 
We want and need human inspections. The railroads are aggressively 
changing gears and want these technologies to replace workers. As train 
operators we see technological failures with Positive Train Control 
(PTC), Trip Optimizer (TO), End of Train Devices ETD daily. We would 
not want to trust these faulty technologies with our lives.

    Question 2. Does the FRA's Fatigue Risk Management Program rule, 
released June 13th, adequately address worker fatigue? Are there 
improvements that could be made?
    Answer. We believe the FRA has the best of intentions with the 
Fatigue Management rule. We applaud their efforts. The concern we have 
is with the carrier's compliance with the rule. As of yet, the 
railroads have not solicited our input about scheduled shifts, fatigue 
mitigation or anything regarding improving fatigue. Not only that, but 
they have also made things worse with their new availability policies 
which allow employees to take no more than two days off a month without 
facing discipline. If they take time off for being sick or fatigued, 
they are disciplined. If you would like me to provide copies of the 
various Availability Policies to you, I would be happy to do that. So, 
while the rule is a good idea, it doesn't appear that the railroads 
care one bit about fatigue.