[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT AND EXAMINATION OF RAILROAD GRADE CROSSING ELIMINATION AND
SAFETY
=======================================================================
(118-43)
HEARING
BEFORE THE
SUBCOMMITTEE ON RAILROADS, PIPELINES,
AND HAZARDOUS MATERIALS
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 18, 2024
__________
Printed for the use of the
Committee on Transportation and Infrastructure
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available online at: https://www.govinfo.gov/committee/house-
transportation?path=/browsecommittee/chamber/house/committee/
transportation
______
U.S. GOVERNMENT PUBLISHING OFFICE
57-075 PDF WASHINGTON : 2024
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
Sam Graves, Missouri, Chairman
Rick Larsen, Washington, Ranking
Member
Eleanor Holmes Norton, Eric A. ``Rick'' Crawford,
District of Columbia Arkansas
Grace F. Napolitano, California Daniel Webster, Florida
Steve Cohen, Tennessee Thomas Massie, Kentucky
John Garamendi, California Scott Perry, Pennsylvania
Henry C. ``Hank'' Johnson, Jr., Georgiaian Babin, Texas
Andre Carson, Indiana Garret Graves, Louisiana
Dina Titus, Nevada David Rouzer, North Carolina
Jared Huffman, California Mike Bost, Illinois
Julia Brownley, California Doug LaMalfa, California
Frederica S. Wilson, Florida Bruce Westerman, Arkansas
Donald M. Payne, Jr., New Jersey Brian J. Mast, Florida
Mark DeSaulnier, California Jenniffer Gonzalez-Colon,
Salud O. Carbajal, California Puerto Rico
Greg Stanton, Arizona, Pete Stauber, Minnesota
Vice Ranking Member Tim Burchett, Tennessee
Colin Z. Allred, Texas Dusty Johnson, South Dakota
Sharice Davids, Kansas Jefferson Van Drew, New Jersey,
Jesus G. ``Chuy'' Garcia, Illinois Vice Chairman
Chris Pappas, New Hampshire Troy E. Nehls, Texas
Seth Moulton, Massachusetts Tracey Mann, Kansas
Jake Auchincloss, Massachusetts Burgess Owens, Utah
Marilyn Strickland, Washington Rudy Yakym III, Indiana
Troy A. Carter, Louisiana Lori Chavez-DeRemer, Oregon
Patrick Ryan, New York Thomas H. Kean, Jr., New Jersey
Mary Sattler Peltola, Alaska Anthony D'Esposito, New York
Robert Menendez, New Jersey Eric Burlison, Missouri
Val T. Hoyle, Oregon John James, Michigan
Emilia Strong Sykes, Ohio Derrick Van Orden, Wisconsin
Hillary J. Scholten, Michigan Brandon Williams, New York
Valerie P. Foushee, North Carolina Marcus J. Molinaro, New York
Mike Collins, Georgia
Mike Ezell, Mississippi
John S. Duarte, California
Aaron Bean, Florida
Celeste Maloy, Utah
Vacancy
Subcommittee on Railroads, Pipelines, and Hazardous Materials
Troy E. Nehls, Texas, Chairman
Donald M. Payne, Jr., New Jersey,
Ranking Member
Frederica S. Wilson, Florida Brian Babin, Texas
Seth Moulton, Massachusetts David Rouzer, North Carolina
Troy A. Carter, Louisiana Mike Bost, Illinois
Andre Carson, Indiana Doug LaMalfa, California
Mark DeSaulnier, California Bruce Westerman, Arkansas
Marilyn Strickland, Washington Pete Stauber, Minnesota
Valerie P. Foushee, North Carolina, Tim Burchett, Tennessee
Vice Ranking Member Dusty Johnson, South Dakota
Grace F. Napolitano, California Tracey Mann, Kansas
Steve Cohen, Tennessee Rudy Yakym III, Indiana
Henry C. ``Hank'' Johnson, Jr., Georgiaomas H. Kean, Jr., New Jersey
Jared Huffman, California Eric Burlison, Missouri
Jesus G. ``Chuy'' Garcia, Illinois Brandon Williams, New York,
Robert Menendez, New Jersey Vice Chairman
Rick Larsen, Washington (Ex Officio) Marcus J. Molinaro, New York
John S. Duarte, California
Vacancy
Sam Graves, Missouri (Ex Officio)
CONTENTS
Page
Summary of Subject Matter........................................ vii
STATEMENTS OF MEMBERS OF THE COMMITTEE
Hon. Troy E. Nehls, a Representative in Congress from the State
of Texas, and Chairman, Subcommittee on Railroads, Pipelines,
and Hazardous Materials, opening statement..................... 1
Prepared statement........................................... 2
Hon. Donald M. Payne, Jr., a Representative in Congress from the
State of New Jersey, and Ranking Member, Subcommittee on
Railroads, Pipelines, and Hazardous Materials, opening
statement...................................................... 3
Prepared statement........................................... 4
Hon. Rick Larsen, a Representative in Congress from the State of
Washington, and Ranking Member, Committee on Transportation and
Infrastructure, opening statement.............................. 30
Prepared statement........................................... 32
WITNESSES
Hon. Amit Bose, Administrator, Federal Railroad Administration,
oral statement................................................. 34
Prepared statement........................................... 35
Hon. Jennifer L. Homendy, Chair, National Transportation Safety
Board, oral statement.......................................... 37
Prepared statement........................................... 38
Ian Jefferies, President and Chief Executive Officer, Association
of American Railroads, oral statement.......................... 48
Prepared statement........................................... 49
Hon. Michael J. Smith, Commissioner, Indiana Department of
Transportation, oral statement................................. 54
Prepared statement........................................... 56
SUBMISSIONS FOR THE RECORD
Submissions for the Record by Hon. Donald M. Payne, Jr.:
Letter of January 16, 2024, to Hon. Sam Graves, Chairman, and
Hon. Rick Larsen, Ranking Member, Committee on
Transportation and Infrastructure, and Hon. Troy E. Nehls,
Chairman, and Hon. Donald M. Payne, Jr., Ranking Member,
Subcommittee on Railroads, Pipelines, and Hazardous
Materials, from Clarence E. Anthony, Chief Executive
Officer and Executive Director, National League of Cities.. 5
Article entitled, `` `Hurry Up and Get It Done': Norfolk
Southern Set Railcar Safety Checks at One Minute,'' by
Esther Fung, Kris Maher, and Paul Berger, Wall Street
Journal, March 30, 2023.................................... 6
Article entitled, `` `Do Your Job.' How the Railroad Industry
Intimidates Employees Into Putting Speed Before Safety,''
by Topher Sanders, Jessica Lussenhop, Dan Schwartz, Danelle
Morton, and Gabriel Sandoval, ProPublica, November 15, 2023 10
Article entitled, ``When Railroad Workers Get Hurt on the
Job, Some Supervisors Go to Extremes to Keep It Quiet,'' by
Topher Sanders, Dan Schwartz, Danelle Morton, Gabriel
Sandoval, and Jessica Lussenhop, ProPublica, December 16,
2023....................................................... 17
Article entitled, ``It Looks Like the Railroad Is Asking for
You To Say Thank You,'' by Jessica Lussenhop and Topher
Sanders, ProPublica, December 19, 2023..................... 25
Letter of September 30, 2021, to Hon. Pete Buttigieg, Secretary,
U.S. Department of Transportation, from Hon. Jennifer L.
Homendy, Chair, National Transportation Safety Board, Submitted
for the Record by Hon. Jennifer L. Homendy..................... 46
Statement of Chuck Baker, President, American Short Line and
Regional Railroad Association, Submitted for the Record by Hon.
Troy E. Nehls.................................................. 80
APPENDIX
Questions to Hon. Amit Bose, Administrator, Federal Railroad
Administration, from:
Hon. Troy E. Nehls........................................... 97
Hon. Donald M. Payne, Jr..................................... 105
Hon. David Rouzer............................................ 112
Hon. Steve Cohen............................................. 113
Question to Hon. Jennifer L. Homendy, Chair, National
Transportation Safety Board, from:
Hon. Troy E. Nehls........................................... 113
Hon. David Rouzer............................................ 114
Hon. Donald M. Payne, Jr..................................... 115
Questions to Ian Jefferies, President and Chief Executive
Officer, Association of American Railroads, from:
Hon. Donald M. Payne, Jr..................................... 117
Hon. David Rouzer............................................ 118
Hon. Steve Cohen............................................. 119
Questions to Hon. Michael J. Smith, Commissioner, Indiana
Department of Transportation, from:
Hon. Troy E. Nehls........................................... 120
Hon. Andre Carson............................................ 121
January 12, 2024
SUMMARY OF SUBJECT MATTER
TO: LMembers, Subcommittee on Railroads, Pipelines,
and Hazardous Materials
FROM: LStaff, Subcommittee on Railroads, Pipelines, and
Hazardous Materials
RE: LSubcommittee Hearing on ``Oversight and
Examination of Railroad Grade Crossing Elimination and Safety''
_______________________________________________________________________
I. PURPOSE
The Subcommittee on Railroads, Pipelines, and Hazardous
Materials of the Committee on Transportation and Infrastructure
will meet on Thursday, January 18, 2024, at 10:00 a.m. ET in
2167 Rayburn House Office Building to receive testimony at a
hearing entitled, ``Oversight and Examination of Railroad Grade
Crossing Elimination and Safety.'' Members will receive
testimony from the Honorable Amit Bose, Administrator of the
Federal Railroad Administration (FRA); the Honorable Jennifer
Homendy, Chair, National Transportation Safety Board (NTSB);
Mr. Ian Jefferies, President and Chief Executive Officer (CEO)
of the Association of American Railroads (AAR); and the
Honorable Michael Smith, Commissioner of the Indiana Department
of Transportation.
II. BACKGROUND
Highway-rail grade crossings occur where a railroad track
intersects with a road at the same level.\1\ According to the
FRA, roughly 212,000 highway-rail grade crossings exist in the
United States.\2\ More than 400 trespass fatalities, which
include suicides and other trespasser incidents not at grade
crossings, occur on railroad rights-of-way each year in the
United States, which account for 94 percent of railroad-related
injuries and deaths annually.\3\ In 2022, there were more than
2,000 highway-rail crossing collisions.\4\
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\1\ United States Dep't of Transp., FRA, Highway-Rail Grade
Crossing and Trespassing Research, (last updated Dec. 21, 2022),
available at https://railroads.dot.gov/research-
development/program-areas/highway-rail-grade-crossing/highway-rail-
grade-crossingand#: :text
=Highway%2Drail%20grade%20crossings%20are,the%20United%20States'%20railr
oad
%20system.
\2\ Id.
\3\ Id.
\4\ Press Release, United States Dep't of Transp., FRA, Biden-
Harris Administration Announces Funding for 63 Projects in 32 States
That Will Help Reduce Train-Vehicle Collisions and Blocked Rail
Crossings in the U.S., (June 5, 2023), available at https://
www.transportation.gov/
briefing-room/biden-harris-administration-announces-funding-63-
projects-32-states-will-help
reduce#: :text=%E2%80%9CEvery%20year%2C%20commuters%2C%20residents,U.S.%
20
Transportation%20Secretary%20Pete%20Buttigieg [hereinafter Funding
Projects].
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Given that trains can require over a mile to stop, safety
and warning devices at grade crossings exist to protect
motorists, rail employees, rail communities, and where
applicable, rail passengers.\5\ Freight railroads, which own
most of the railroad tracks in America, invest in grade
crossing upgrades, eliminations, maintenance, safety,
education, and technologies.\6\ The Federal Government, as well
as state and local governments also invest in grade crossing
improvements as outlined below. According to the FRA, the rail
industry has made significant efforts to improve safety,
leading to the rate of rail-related accidents and incidents
falling by 82 percent over the last 40 years.\7\ However, the
number of grade crossing and trespassing incidents have
increased over the last decade, by one percent and 35 percent,
respectively, despite reduced motor vehicle and train traffic
in 2020 due to COVID-19.\8\
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\5\ Tracking Toward Zero: Improving Grade Crossing Safety and
Addressing Community Concerns, Hearing Before the Subcomm. on
Railroads, Pipelines, and Hazardous Materials of the H. Comm. on
Transp. and Infrastructure, 116th Cong. (Feb. 5. 2020) (statement of
Rachel Maleh, Executive Director, Operation Lifesaver, Inc.).
\6\ Id. (statement of Jason M. Morris, Asst. VP, Norfolk Southern
Corporation).
\7\ FRA, Budget Estimates Fiscal Year 2023, (2023) available at
https://www.transportation.gov/sites/dot.gov/files/2022-03/FRA-Budget-
Estimates-FY23.pdf.
\8\ Id.
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III. RELEVANT FEDERAL GRANT PROGRAMS
There are multiple Federal grant programs that provide
funding and support to improve or eliminate highway-rail grade
crossings, or where these projects are eligible for funding.
These include:
LThe Railroad Crossing Elimination (RCE) Grant
Program, administered by the FRA;
LThe Consolidated Railroad Infrastructure and
Safety Improvement (CRISI) Program, administered by the
Department of Transportation (DOT);
LThe ``Section 130'' Program, administered by the
Federal Highway Administration (FHWA);
LNationally Significant Multimodal Freight and
Highways Projects grants program (INFRA), administered by DOT;
LThe Rebuilding American Infrastructure with
Sustainability and Equity (RAISE) discretionary grant program,
(formerly TIGER and BUILD), administered by DOT;
LRural Surface Transportation Grants (Rural),
administered by DOT; and
LNational Infrastructure Project Assistance
Program (Mega Program), administered by DOT.
RAILROAD CROSSING ELIMINATION (RCE) PROGRAM
The Infrastructure Investment and Jobs Act (IIJA) (P.L.
117-58) authorized $600 million in annual advanced
appropriations over five years (totaling $3 billion) to create
a new RCE Program to address safety concerns at highway-rail or
pathway-rail grade crossings Nationwide.\9\ The grant program
applies to projects that would separate or close grade
crossings; would relocate tracks, install or improve protective
or preventive measures at crossings such as signs or signals;
and fund planning and designs for eligible projects.\10\
Eligible recipients include states, United States territories,
Indian Tribes, local governments, port authorities, and
metropolitan planning organizations.\11\
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\9\ IIJA, Pub. L. No. 117-58, Sec. 22305, 135 Stat. 695.
\10\ DOT, FRA, Railroad Crossing Elimination Program, (last updated
Oct. 2, 2023), available at https://railroads.dot.gov/grants-loans/
competitive-discretionary-grant-programs/railroad-crossing-elimination-
grant-program.
\11\ Id.
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In December 2023, FRA awarded over $570 million in fiscal
year (FY) 2022 funds to eligible projects under the RCE
program.\12\ IIJA stipulates that at least 20 percent of
available grant funds ($114.6 million) are made available for
rural and tribal land projects.\13\ Of this 20 percent set
aside, five percent of the total funding is made available for
projects in counties with 20 or fewer residents per square
mile.\14\ The Federal cost share for these grants is no more
than 80 percent of total project costs.\15\ FRA has not yet
issued a notice of funding opportunity (NOFO) for this program
for FY 2023 funding. While FY 2023 has ended, FRA is still able
to award FY 2023 funding given the appropriation is available
for obligation for an indefinite period.\16\
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\12\ Funding Projects, supra note 4.
\13\ DOT, FRA, Railroad Crossing Elimination (RCE) Grant Program,
(last updated Dec. 4, 2023), available at https://railroads.dot.gov/
grants-loans/competitive-discretionary-grant-programs/railroad-
crossing-elimination-grant-program.
\14\ Funding Projects, supra note 4.
\15\ IIJA, supra note 9, at 135 Stat. 696.
\16\ IIJA, supra note 9, at 135 Stat. 1436.
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THE CONSOLIDATED RAIL INFRASTRUCTURE AND SAFETY IMPROVEMENTS (CRISI)
GRANT PROGRAM
The Fixing America's Surface Transportation (FAST) Act of
2015 (P.L. 114-94) first authorized the CRISI program to
provide discretionary grants for a wide range of projects that
improve passenger and freight rail transportation in terms of
safety, efficiency, or reliability, including grade crossing
improvement projects.\17\ Eligible recipients include states,
an interstate compact, public agencies, Indian Tribes, Amtrak,
Class II and Class III railroads, additional rail carriers or
equipment manufacturers in partnership with a public applicant,
the Transportation Research Board, universities, and non-profit
labor organizations.\18\
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\17\ FAST Act of 2015, Pub. L. No. 114-94, Sec. 11301, 129 Stat.
1644.
\18\ Id.
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Grade crossing improvement projects may include repair,
installation, or improvement of grade separations, railroad
crossing signals, gates, and related technologies, approach
signage, roadway improvements, railroad crossing panels and
surfaces, and safety engineering projects to reduce risk in
quiet zones or potential quiet zones.\19\ The FAST Act of 2015
allows for up to 80 percent Federal cost share and that at
least 25 percent of available funding be for projects in rural
areas.\20\
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\19\ Id.
\20\ Id.
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IIJA authorized $5 billion in advanced appropriations for
CRISI over five years, and in September 2023, FRA awarded $1.4
billion for eligible CRISI projects for FY 2022 funding.\21\ A
NOFO has not yet been issued for FY 2023 funding. While FY 2023
has ended, FRA is still able to award FY 2023 funding given the
appropriation is available for obligation for an indefinite
period.\22\
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\21\ Press Release, DOT, Biden-Harris Administration Announces $1.4
Billion in Infrastructure Funding for 70 Projects That Will Improve
Rail Safety, Strengthen Supply Chains, and Add Passenger Rail Service,
(Sept. 25, 2023), available at https://railroads.dot.gov/about-fra/
communications/newsroom/press-releases/biden-harris-administration-
announces-14-billion-0.
\22\ IIJA, supra note 9, at 135 Stat. 1432.
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SECTION 130 PROGRAM
The Railway Highway Crossing Program (RHCP), also known as
the ``Section 130'' Program, is administered by FHWA and
provides funds by formula to state departments of
transportation for safety improvements that reduce fatalities,
injuries, and crashes at grade crossings.\23\ These projects
may include grade crossing separation, protection,
reconstruction, hazard elimination, and relocation of highways
to eliminate grade crossings.\24\ The Section 130 Program is
funded through annual set-asides from the Highway Safety
Improvement Program and is apportioned based on the ratio of
public railway-highway crossings in the state to public
railway-highway crossings in all states and based on the
statutory formula under 23 U.S.C. Sec. 104.\25\
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\23\ Surface Transportation and Uniform Relocation Assistance Act
of 1987, Pub. L. No. 100-17, Sec. 121, 101 Stat. 159, codified at 23
U.S.C. Sec. 130.
\24\ 23 U.S.C. Sec. 130.
\25\ Id.; see also DOT, FRA, Bipartisan Infrastructure Law,
Railway-Highway Crossings Program (RHCP), (last updated Apr. 9, 2022),
available at https://www.fhwa.dot.gov/
bipartisan-infrastructure-law/
rhcp.cfm?_gl=1*zmkx7i*_ga*MTI3OTkwMjY1OC4xNjgwMTg3N
Tgz*_ga_VW1SFWJKBB*MTcwNDM5NjQ0OS4yLjEuMTcwNDM5ODA3MS4wLjAuMA.
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IIJA includes $245 million annually for FY 2022 through FY
2026 for the Section 130 program, increased the Federal share
of projects funded through this set-aside from 90 to 100
percent, allows the funds to be used for trespasser prevention
projects, and required both a DOT and a Government
Accountability Office (GAO) report on the effectiveness of the
program.\26\
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\26\ IIJA, supra note 9, at 135 Stat. 461.
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THE REBUILDING AMERICAN INFRASTRUCTURE WITH SUSTAINABILITY AND EQUITY
(RAISE) GRANT PROGRAM
RAISE is a DOT discretionary grant program for surface
transportation projects whose objectives include investing in
projects that will have a significant regional or local impact,
and support DOT strategic goals to improve safety, economic
efficiency and global competitiveness, reduce disparities, and
achieve environmental objectives.\27\ Eligible applicants
include states, local governments, port authorities, and
metropolitan planning organizations, among others.\28\ IIJA
authorized advanced appropriations for RAISE grants of $1.5
billion annually for FY 2022 to FY 2026.\29\
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\27\ DOT, Off. of the Sec'y, Notice of Funding Opportunity for
Fiscal Year 2024, Rebuilding American Infrastructure with
Sustainability and Equity (RAISE) Grants, https://
www.transportation.gov/sites/dot.gov/files/2023-11/
RAISE%202024%20NOFO%2011.30.23_0.pdf [hereinafter RAISE Grants]; see
also IIJA, supra note 9, at 135 Stat. 663.
\28\ RAISE Grants, supra note 25.
\29\ IIJA, supra note 9, at 135 Stat. 675.
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In 2023, the RAISE program issued over $2.2 billion in
awards for eligible projects, including several grants for
highway-railway grade separation projects.\30\ DOT released the
NOFO for FY 2024 RAISE grants in November 2023, with
applications closing February 2024, and an estimated $1.5
billion in funding availability.\31\
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\30\ Press Release, DOT, Biden-Harris Administration Announces
Funding for 162 Community-Led Infrastructure Projects as Part of the
Investing in America Agenda, (June 28, 2023), available at https://
www.transportation.gov/briefing-room/biden-harris-administration-
announces-funding-162-community-led-infrastructure; see also DOT, Off.
of the Sec'y, RAISE 2023 Fact Sheets, available at https://
www.transportation.gov/sites/dot.gov/files/2023-06/RAISE%2020
23%20Fact%20Sheets_2.pdf.
\31\ Press Release, DOT, Biden-Harris Administration Announces $1.5
Billion Available through the 2024 RAISE Grant Program, (Nov. 30,
2023), available at https://www.transportation.gov/RAISEgrants.
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THE NATIONALLY SIGNIFICANT MULTIMODAL FREIGHT & HIGHWAY PROJECTS
PROGRAM (INFRA)
The INFRA program was established by the FAST Act of 2015
and awards competitive grants for multimodal freight and
highway projects of National or regional significance to
improve the safety, efficiency, and reliability of the movement
of freight and people.\32\ Eligible applicants include states,
local governments, tribal governments, and special purpose
districts, among others.\33\ Among the eligible activities for
INFRA grants are highway-railroad crossings or grade separation
projects.\34\
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\32\ DOT, The INFRA Grant Program, (last updated June 27, 2023),
available at https://www.transportation.gov/grants/infra-grant-program
[hereinafter INFRA Grants]; see also The Fixing America's Surface
Transportation (FAST) Act of 2015, Pub. L. No. 114-94, Sec. 1105, 129
Stat. 1332.
\33\ INFRA Grants, supra note 30.
\34\ Id.
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IIJA authorized up to $8 billion for INFRA over the period
of FY 2022 through FY 2026.\35\ In FY 2022, DOT awarded
approximately $1.5 billion to freight and highway
infrastructure projects.\36\ DOT has consolidated the INFRA
grant program into a single notice of funding opportunity with
the National Infrastructure Project Assistance grants program
(Mega) and the Rural Surface Transportation Grant program
(Rural), described below.\37\ This combined NOFO is known as
the Multimodal Project Discretionary Grant Opportunity (MPDG)
and allows applicants to apply through one application and a
common set of criteria.\38\ DOT issued a NOFO for the MPDG in
June 2023, anticipating the MPDG will award between $5.45
billion and $5.75 billion from FY 2023 and FY 2024 funding,
including between $3 billion and $3.1 billion for INFRA.\39\
The next round of awards for INFRA are expected to be released
early this year.\40\
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\35\ Notice of Funding Opportunity for the Department of
Transportation's Multimodal Project Discretionary Grant Opportunity, 87
Fed. Reg. 17108, (Mar. 25, 2023), available at https://www.govinfo.gov/
content/pkg/FR-2023-06-30/pdf/2023-13939.pdf.
\36\ Tom Ichniowski, US DOT Picks Winners for $1.5B in INFRA
Grants, Engineering News Record, (Sept. 15, 2022), available at https:/
/www.enr.com/articles/54806-us-dot-picks-winners-for-15b-in-infra-
grants.
\37\ DOT, FRA, Competitive Discretionary Grant Programs, (last
updated Dec. 11, 2023), available at https://railroads.dot.gov/grants-
loans/competitive-discretionary-grant-programs/competitive-
discretionary-grant-programs; see multimodal projects discretionary
grant program.
\38\ DOT, Off. of the Sec'y, NOFO for the DOT FY 2023-2024 MPDG,
(last updated June 26, 2023), available at https://
www.transportation.gov/sites/dot.gov/files/2023-06/MPDG%20NOFO
%202023-2024%20Final_0.pdf [hereinafter MPDG NOFO].
\39\ Id.
\40\ Press Release, DOT, Biden-Harris Administration Announces $645
million to Help Meet Rural Transportation and Mobility Needs, (Dec. 14,
2023), available at https://www.transportation.gov/grants/mpdg-program
[hereinafter Rural Transportation].
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RURAL SURFACE TRANSPORTATION GRANT PROGRAM (RURAL)
Rural is a DOT discretionary grant program which improves
and expands surface transportation infrastructure in rural
areas to increase connectivity, improve the safety and
reliability of the movement of people and freight, and generate
regional economic growth and improve quality of life.\41\ This
program may fund highway-railway grade separation and
elimination projects, in addition to highway-rail grade
crossing improvement projects.\42\ Rural grants were included
in the June 2023 MPDG NOFO along with INFRA and Mega grants.
DOT announced FY 2023-2024 funding awards for Rural of $645.3
million.\43\
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\41\ DOT, The Rural Surface Transportation Program, (last updated
Dec. 12, 2023), available at https://www.transportation.gov/grants/
rural-surface-transportation-grant-program.
\42\ Id.; see also Rural Transportation, supra note 38.
\43\ Rural Transportation, supra note 38; see also DOT, Rural
Surface Transportation Grant Awards FY 2023-2024, (last updated Dec.
13, 2023), available at https://www.transportation.gov/grants/rural-
surface-transportation-grant/rural-surface-transportation-program-2023-
2024-award-fact.
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THE NATIONAL INFRASTRUCTURE PROJECT ASSISTANCE PROGRAM (MEGA PROGRAM)
The Mega Program was authorized by IIJA and supports large,
complex projects that are difficult to fund by other means and
will likely generate National or regional economic, mobility,
or safety benefits.\44\ Eligible applicants include states,
metropolitan planning organizations, local governments,
political subdivisions, special purpose districts or
authorities, tribal governments, a partnership between Amtrak
and one or more these preceding entities, and a group of these
entities.\45\ Eligible projects include highway, bridge, and
other projects on the National multimodal, freight, or highway
networks, and other projects, including a railway-highway grade
separation or elimination project, or any freight rail project
that provides a public benefit.\46\ The Mega grants also
utilize the DOT consolidated MPDG NOFO, along with INFRA and
Rural grants.\47\ In January 2023, DOT awarded $1.2 billion in
funding for FY 2022 Mega grants.\48\ The FY 2023 Mega grant
awards are expected to be issued early this year.\49\
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\44\ IIJA, supra note 9, at 135 Stat. 663.
\45\ Id.
\46\ Id.
\47\ MPDG NOFO, supra note 36.
\48\ Press Release, DOT, President Biden Announces First of its
Kind Infrastructure Investment for Nine Nationally Significant Mega
Projects, (Jan. 31, 2023), available at https://www.transportation.gov/
briefing-room/president-biden-announces-first-its-kind-infrastructure-
investment-nine-nationally.
\49\ Rural Transportation, supra note 38.
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IV. WITNESS LIST
LHon. Amit Bose, Administrator, Federal Railroad
Administration
LHon. Jennifer Homendy, Chair, National
Transportation Safety Board
LMr. Ian Jefferies, President and CEO, Association
of American Railroads
LHon. Michael Smith, Commissioner, Indiana
Department of Transportation
OVERSIGHT AND EXAMINATION OF RAILROAD GRADE CROSSING ELIMINATION AND
SAFETY
----------
THURSDAY, JANUARY 18, 2024
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 a.m. in room
2167 Rayburn House Office Building, Hon. Troy E. Nehls
(Chairman of the subcommittee) presiding.
Mr. Nehls. The Subcommittee on Railroads, Pipelines, and
Hazardous Materials will come to order.
I would ask everybody to please stand.
Congressman Yakym, if you would, lead us in the Pledge of
Allegiance.
[The Pledge of Allegiance was made.]
Mr. Nehls. Thank you.
I ask unanimous consent that the chairman be authorized to
declare a recess at any time during today's hearing.
Without objection, so ordered.
I also ask unanimous consent that the 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, if Members wish to insert a document into
the record, please also email it to [email protected].
I now recognize myself for the purpose of an opening
statement for 5 minutes.
OPENING STATEMENT OF HON. TROY E. NEHLS OF TEXAS, CHAIRMAN,
SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS
Mr. Nehls. Today's hearing examines highway-railroad grade
crossing eliminations and safety improvements.
There are approximately 212,000 highway-rail grade
crossings in the United States. In 2022, there were over 2,000
accidents at grade crossings, 2,000 of them in 2022. Grade
crossing accidents and fatalities are entirely preventable. We
shouldn't have any.
States make the determination when it comes to addressing
grade crossings, including weighing safety, railroad, and
vehicle traffic considerations. Eliminating a rail crossing,
where necessary and possible, eliminates the potential for a
grade crossing incident.
The Infrastructure Investment and Jobs Act, IIJA, created a
new grant program, known as the Railroad Crossing Elimination
Grant Program, meant to help States and communities with grade
crossing elimination and safety.
The program received a total of $3 billion over 5 years, or
roughly $600 million per year. In fiscal year 2022, the Federal
Railroad Administration awarded $570 million in Railroad
Crossing Elimination Grants to projects in 32 States that
addressed over 400 at-grade crossings, and my home State of
Texas received roughly $86 million for 5 major grade crossing
projects.
It is expected that FRA will announce a Notice of Funding
Opportunity soon, seeking applications for more grade crossing
improvement projects; I applaud that.
We must ensure this process is transparent, easy to
navigate, and that the money is accessible for all communities.
It is my hope that the FRA will work with Congress to achieve
these goals while properly overseeing this new grant program.
Further, with the next surface transportation
reauthorization fast approaching, it is time to begin examining
these programs to understand what is working, what is working
with them, the right levels of funding, and how to build on
existing grade crossing elimination and safety efforts such as
Railroad Crossing Elimination Grant Program.
I look forward to hearing the testimony of our witnesses
today, and specifically I am interested in learning about how
existing programs can be improved, the resources that States
and communities need, and how we can reduce Government redtape
to make these funds more accessible and the process less
complicated.
[Mr. Nehls' prepared statement follows:]
Prepared Statement of Hon. Troy E. Nehls, a Representative in Congress
from the State of Texas, and Chairman, Subcommittee on Railroads,
Pipelines, and Hazardous Materials
Today's hearing examines highway-railroad grade crossing
eliminations and safety improvements.
There are approximately 212,000 highway-rail grade crossings in the
United States. In 2022, there were over 2,000 accidents at grade
crossings.
Grade crossing accidents and fatalities are entirely preventable.
States make the determinations when it comes to addressing grade
crossings, including weighing safety, railroad, and vehicle traffic
considerations. Eliminating a rail crossing, where necessary and
possible, eliminates the potential for a grade crossing incident.
The Infrastructure Investment and Jobs Act (IIJA) created a new
grant program known as the Railroad Crossing Elimination Grant Program
meant to help states and communities with grade crossing elimination
and safety.
The program received a total of $3 billion over five years, or
roughly $600 million per year. In Fiscal Year 2022, the Federal
Railroad Administration (FRA) awarded $570 million in Railroad Crossing
Elimination grants to projects in 32 states that addressed over 400 at-
grade crossings. My home state of Texas received roughly $86 million
for five major grade crossing projects.
It is expected that FRA will announce a notice of funding
opportunity soon seeking applications for more grade crossing
improvement projects.
We must ensure this process is transparent, easy to navigate, and
that the money is accessible for all communities. It is my hope that
the FRA will work with Congress to achieve these goals while properly
overseeing this new grant program.
Further, with the next surface transportation reauthorization fast
approaching, it is time to begin examining these programs to understand
what's working, the right levels of funding, and how to build on
existing grade crossing elimination and safety efforts such as the
Railroad Crossing Elimination Grant Program.
I look forward to hearing the testimony of our witnesses today, and
specifically I am interested in learning about how existing programs
can be improved, the resources that states and communities need, and
how we can reduce government red tape to make these funds more
accessible and the process less complicated.
Mr. Nehls. I now recognize Ranking Member Payne for 5
minutes for an opening statement.
OPENING STATEMENT OF HON. DONALD M. PAYNE, Jr., OF NEW JERSEY,
RANKING MEMBER, SUBCOMMITTEE ON RAILROADS, PIPELINES, AND
HAZARDOUS MATERIALS
Mr. Payne. Thank you, Mr. Chairman. I want to thank Chair
Nehls for holding this hearing. We are long overdue to discuss
rail safety.
I want to thank our witnesses for being here today. I
especially want to thank NTSB Chair Homendy for her tireless
efforts to keep us apprised of her agency's safety
investigations.
I also want to thank FRA Administrator Bose for his
increased focus on safety, and implementing billions of dollars
in Bipartisan Infrastructure Law funding.
As trains increase in length, they block grade crossings
nationwide. Last year, this committee saw footage from Hammond,
Indiana, of schoolchildren forced to crawl under parked freight
trains to get to school. It was shocking. I am pleased to see
that the Bipartisan Infrastructure Law's Railroad Crossing
Elimination Program is funding a project in Hammond that will
eliminate one of these crossings and hopefully allow children
to get to school safely without having to cross under railcars.
Under railcars.
Freight railroads carry important cargo, and what they
transport is often essential to our daily lives. But those long
trains can and do have accidents; ask the people of East
Palestine, Ohio. Freight rail safety is a challenge to
communities across the country.
The committee received a letter this week from the National
League of Cities imploring Congress to act on rail safety
legislation. More than 1 in 10 cities has experienced a rail
incident, and 64 percent of all rail incidents occurred within
city boundaries over the last 10 years. Without comprehensive
rail safety legislation, we continue to allow local governments
and first responders to face the daily rail derailments,
deaths, and delays that have left communities frustrated.
Mr. Chairman, I would like to ask unanimous consent to
insert this letter into the record.
Mr. Nehls. Without objection.
[The National League of Cities letter is included after Mr.
Payne's prepared statement.]
Mr. Payne. Since the Norfolk Southern derailment in East
Palestine, there have been over 1,500 rail accidents, 1,500. In
response, the FRA issued several rail safety advisories,
including on the use and maintenance of hot bearing wayside
detectors; how cars should be organized on a train, including
where empty cars should be placed; concerns with train length,
and how to prevent weather-related accidents and incidents.
The Biden-Harris administration acted on rail safety.
Congress should act, too.
I am glad to see railroads and rail unions have negotiated
sick leave, but Congress can act here, as well. I introduced
legislation that would guarantee all freight rail workers 7
days of paid sick leave. Not only is sick leave a basic right,
but it also helps prevent worker fatigue.
I am disheartened, however, that negotiations on the Class
I railroads have stalled regarding joining the Confidential
Close Call Reporting System. This system is meant to provide
rail workers a safe environment to report unsafe events and
conditions. Without it, rail workers might not report near-miss
incidents because they are afraid of retaliation.
The Wall Street Journal reported that employees are rushed
on equipment inspections. This program would provide a forum
for employees to share the information with a neutral third
party, rather than having to ask for help in the press.
I would like to ask for unanimous consent to insert this
article into the record, along with three others from
ProPublica that detail the troubling culture of minimizing
railroad worker incidents and injuries.
Mr. Nehls. Without objection.
[The articles are included after Mr. Payne's prepared
statement.]
Mr. Payne. Thank you, Mr. Chairman, and I look forward to
hearing from all of our witnesses, and I yield back.
[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 Ranking Member, Subcommittee
on Railroads, Pipelines, and Hazardous Materials
I thank Chair Nehls for holding this hearing. We are long overdue
to discuss rail safety.
I want to thank our witnesses for being here today.
I especially want to thank NTSB Chair Homendy for her tireless
efforts to keep us apprised of her agency's safety investigations.
I also want to thank FRA Administrator Bose for his increased focus
on safety and implementing billions of dollars in Bipartisan
Infrastructure Law funding.
As trains increase in length, they block grade crossings
nationwide.
Last year, this Committee saw footage from Hammond, Indiana, of
schoolchildren forced to crawl under parked freight trains to get to
school.
I'm pleased to see that the Bipartisan Infrastructure Law's
Railroad Crossing Elimination program is funding a project in Hammond
that will eliminate one of these crossings and hopefully allow children
to safely get to school.
Freight railroads carry important cargo and what they transport is
often essential to our daily lives, but those long trains can and do
have accidents.
Ask the people of East Palestine, Ohio.
Freight rail safety is a challenge to communities across the
country.
The Committee received a letter this week from the National League
of Cities imploring Congress to act on rail safety legislation.
More than one in ten cities has experienced a rail incident and 64
percent of all rail incidents occurred within city boundaries over the
last 10 years.
Without comprehensive rail safety legislation, we continue to allow
local governments and first responders to face the daily rail
derailments, deaths, and delays that have left communities frustrated.
Mr. Chairman, I would like to ask unanimous consent to insert this
letter into the record. Thank you.
Since the Norfolk Southern derailment in East Palestine, there have
been over 1,500 rail accidents.
In response, the FRA issued several rail safety advisories
including on the use and maintenance of hot bearing wayside detectors,
how cars should be organized on a train--including where empty cars
should be placed, concerns with train length, and how to prevent
weather-related accidents and incidents.
The Biden-Harris Administration acted on rail safety.
Congress should act, too.
I am glad to see railroads and rail unions have negotiated sick
leave, but Congress can act here as well.
I introduced legislation that would guarantee all freight rail
workers seven days of paid sick leave.
Not only is sick leave a basic right, but this also helps prevent
worker fatigue.
I am disheartened; however, that negotiations on the Class I
railroads have stalled regarding joining the Confidential Close Call
Reporting System.
This system is meant to provide rail workers a safe environment to
report unsafe events and conditions.
Without it, rail workers might not report near-miss incidents
because they are afraid of retaliation.
The Wall Street Journal reported that employees are rushed on
equipment inspections.
This program would provide a forum for employees to share that
information with a neutral third party rather than having to ask for
help in the press.
I would like to ask for unanimous consent to insert this article
into the record, along with three others from ProPublica that detail a
troubling culture of minimizing railroad worker incidents and injuries.
Thank you, Mr. Chairman, and I look forward to hearing from all of
our witnesses, and I yield back.
Letter of January 16, 2024, to Hon. Sam Graves, Chairman, and Hon. Rick
Larsen, Ranking Member, Committee on Transportation and Infrastructure,
and Hon. Troy E. Nehls, Chairman, and Hon. Donald M. Payne, Jr.,
Ranking Member, Subcommittee on Railroads, Pipelines, and Hazardous
Materials, from Clarence E. Anthony, Chief Executive Officer and
Executive Director, National League of Cities, Submitted for the Record
by Hon. Donald M. Payne, Jr.
January 16, 2024.
The Honorable Sam Graves,
Chairman,
House Transportation and Infrastructure Committee, U.S. House of
Representatives.
The Honorable Rick Larsen,
Ranking Member,
House Committee on Transportation and Infrastructure, U.S. House of
Representatives.
The Honorable Troy Nehls,
Chairman,
Subcommittee on Railroads, Pipelines, and Hazardous Materials, House
Committee on Transportation and Infrastructure, U.S. House of
Representatives.
The Honorable Donald M. Payne, Jr.,
Ranking Member,
Subcommittee on Railroads, Pipelines, and Hazardous Materials, House
Committee on Transportation and Infrastructure, U.S. House of
Representatives.
Dear Chairman Graves, Ranking Member Larsen, Chairman Nehls, and
Ranking Member Payne:
On behalf of America's 19,000 cities, towns, and villages, the
National League of Cities (NLC) appreciates the rail investments that
Congress advanced through the Infrastructure Investment and Jobs Act
(IIJA) as well as annual federal funding. The IIJA created the new Rail
Crossing Elimination program that has already proven incredibly
valuable for communities to work directly with railroads to complete
rail improvement projects and improve the flow of rail traffic and
local transportation traffic at crossings. While the costs for rail
crossing infrastructure improvements have increased [https://
www.kansascity.com/news/business/article2696
76406.html] along with volatile railroad project expenses, continuing
to advance rail safety improvements remains a key opportunity for
collaboration for Congress and communities with our railroad partners.
America's communities have asked for Congress' oversight and
support for bipartisan legislative action on rail safety and blocked
crossings [https://www.nlc.org/post/2023/05/08/500-cities-call-on-
congress-to-stop-rails-risky-business-endangering-their-communities/]
that cannot be fully addressed by current rail programs or the Federal
Railroad Administration without Congressional action. Hundreds of
cities and towns of all sizes are reporting thousands of trains parked
and blocking their main roads, causing local transportation and
economic activity to grind to a halt. This has led to dangerous
situations of children climbing over stopped trains; ambulances delayed
from reaching emergency 9-1-1 calls in time to save lives; and
residents left stranded indefinitely, or worse, pinned inside blocked
rail areas. Unfortunately, the Federal Railroad Administration is
blocked from regulating based on these community reports.
More than one in ten cities has experienced a rail incident within
their boundaries since 2013, and 64% of all rail incidents occurred
within city boundaries over the last 10 years. The train derailment
last February in East Palestine, Ohio, was a jarring reminder for all
local governments of how quickly any one of these rail incidents in
their backyards can dissolve the economic potential of the communities
they represent and serve. The proximity and recurrence of train
derailments and blocked crossings should not be minimized--it is a
legitimate federal concern for the safety of American communities,
emergency first responders, as well as railroads and rail workers.
To that end, NLC asks the House Transportation and Infrastructure
Committee to expeditiously advance rail safety legislation that
responds to the safety challenges present in America's rail network.
The Railway Safety Act of 2023 (H.R. 1674/S.576) was co-sponsored by a
bipartisan group of seventeen members of Congress and eleven Senators
to help prevent toxic train derailments and ensure rail moves safely
through our communities and our country. Additionally, eleven Ohio
members of Congress introduced a similar bipartisan bill (H.R. 1633),
and Rep. Fitzpatrick and Rep. Deluzio have introduced the bipartisan
Assistance for Local Heroes During Train Crises Act (H.R. 2999) to help
local first responders be better prepared for these incidents. Without
Congress passing comprehensive rail safety legislation, local
governments and first responders will continue to face the daily
consequences of rail derailments, deaths, and delays that have left
many communities frustrated for years with the pace of federal response
to their concerns.
Passing legislation that ensures trains stay on their tracks and
keep moving is a system that is both economically reliable for
America's industries and economy, as well as profitable for railroads.
On average, three trains in the U.S. rail network derail each day, and
close to half of those trains are reported to be carrying a hazardous
substance due to precision railroading, making derailments and
hazardous disasters far more likely. Communities with trains occupying
their crossings deserve reasonable accommodations that keep their
transportation networks moving and, where possible, eliminate the
conflicts entirely. We urge Congress to pass bipartisan rail safety
legislation that addresses persistent rail safety issues that have
reasonable and clear solutions, to ensure communities and first
responders are made whole when derailments become disasters.
Sincerely,
Clarence E. Anthony,
CEO and Executive Director, National League of Cities.
cc: Senate Commerce Committee Chair Maria Cantwell
Senate Commerce Committee Ranking Member Ted Cruz
Article entitled, `` `Hurry Up and Get It Done': Norfolk Southern Set
Railcar Safety Checks at One Minute,'' by Esther Fung, Kris Maher, and
Paul Berger, Wall Street Journal, March 30, 2023, Submitted for the
Record by Hon. Donald M. Payne, Jr.
`Hurry Up and Get It Done': Norfolk Southern Set Railcar Safety Checks
at One Minute
by Esther Fung, Kris Maher, and Paul Berger
Wall Street Journal, March 30, 2023, 11:16 a.m. ET
https://www.wsj.com/articles/railroads-are-a-lot-more-efficient-are-
they-also-less-safe-7c5d2a60
The company's practices are a prime focus of federal regulators after
a spate of major accidents since December 2021
In the world of railroading, keeping the trains moving is
paramount, and Norfolk Southern Corp. has little tolerance for late
departures.
Supervisors can be penalized for trains that are ready to leave but
instead sit in rail yards, according to current and former employees of
the Atlanta-based railroad. Train inspection time frames are tight.
Employees who seek more-stringent reviews of rail equipment or slow
down transport can face discipline.
Scott Wilcox, a sixth-generation railroader who is retired from
Norfolk Southern, said its railcar inspectors used to have five to
eight minutes to check a car's wheels and brakes for problems like
leaky bearings or damaged components. Now they often have between 30
seconds and a minute, he said.
``So basically all they're doing is connecting air hoses between
the cars for the brake system and that's it,'' Mr. Wilcox said. ``They
don't have time to do anything else. At least not without getting in
trouble.''
Norfolk Southern's practices are a prime focus of federal
regulators after a spate of major accidents since December 2021, three
of which resulted in fatalities. Its derailment in East Palestine,
Ohio, on Feb. 3, which released toxic chemicals, has spurred lawsuits
from residents, business owners and the state alleging negligence.
The National Transportation Safety Board, which typically
investigates major transportation and hazardous-materials accidents,
opened a special probe into Norfolk Southern's safety culture, a move
it hadn't made in years. The NTSB said it took the step ``given the
number and significance'' of accidents and called for the company to
immediately review and assess its safety practices. The Federal
Railroad Administration separately has opened a safety probe into
Norfolk Southern.
Norfolk Southern Chief Executive Alan Shaw defended the railroad's
record, citing data including employee injury rates that have declined
each year since 2019. At the same time, he said the company is
committed to improving its safety culture and has sought input from the
two largest railroad unions to do so.
``This is going to take the contribution of all 20,000 of our
employees,'' he said. ``We're not putting unsafe trains out there.''
At the center of Norfolk Southern's practices--and those of most
other big railroads today--is a management system called precision-
scheduled railroading, or PSR, designed to improve service, make
operations more efficient and cut costs. In it, railroads, rather than
wait for cargo to arrive, stick to preset schedules.
Equipment spends less time in rail yards. Fewer trains run on
routes, but cars tend to be heavier because they are packed with more
cargo. That change reduces the need for locomotives, and some can be
taken out of service, reducing costs.
One result is smaller workforces. Total employment at the seven
largest North American freight railroads fell to just below 115,000 in
2021 from nearly 159,000 in 2011, a 28% drop in a period during which
the amount of freight carried fell by a smaller 11%. Crews are
responsible for longer trains, some as long as three miles.
The industry impact since large U.S. freight railroads started
adopting PSR about six years ago has been similar to that of lean
manufacturing on factories decades earlier. The changes helped Norfolk
Southern squeeze more revenue out of each ton of freight it moved.
Investors benefited as railroads plowed more money into stock buybacks
and dividends.
Unions threatened a national strike last fall in part because of
changes under PSR, before the Biden administration brokered a labor
deal and Congress passed legislation compelling them to accept it.
Whether PSR was a factor in the Ohio derailment hasn't been
determined. Current and former employees say that the changes haven't
improved safety and in some cases have been harmful. Broadly, industry
executives and employees are divided on whether PSR contributes to
accidents.
In the latest rail accident, a BNSF train with cargo including
ethanol derailed in Raymond, Minn., early Thursday, igniting a fire and
forcing an evacuation. No injuries were reported.
The Federal Railroad Administration's safety chief, Karl Alexy,
said that statistics don't show a clear link between implementation of
PSR and changes in accident rates, but he added that the system
introduced ``new hazards and additional risks.'' Mr. Alexy added there
is fatigue among rail workforces as a result of the pandemic and the
industry's having fewer workers than years earlier.
Derailments, the most common kind of accident, have fallen by more
than half at major freight railroads since 2000, federal data show.
Norfolk Southern, which adopted the PSR system in 2019, reported fewer
derailments in 2022 than in any other year in the past decade.
Norfolk Southern's overall accident rate--counting collisions and
other types of mishaps in addition to derailments--climbed 25% from
2019 to 2022 but did so at declining annual rates. From 2021 to 2022,
it rose 0.5%.
Norfolk Southern isn't an outlier in the safety issues it is
facing. Other large freight railroads have also dealt with service
disruptions after overhauling operations to adopt precision scheduling.
Some problems stem from rail-yard congestion as employees handle
longer trains and workers sometimes must do work they have little
training for, all under tighter time pressure.
Crews worked on clearing the Norfolk Southern crash site in East
Palestine, Ohio, on Feb. 14.
Photo: Dustin Franz for The Wall Street Journal
``There's a `hurry up and get it done,' or if it's not done, `hurry
up and get it out of the door' mentality,'' said James Orwan, general
chairman of IAM Lodge 19, a labor union that represents workers who
inspect, repair and maintain locomotives.
While PSR shook up Norfolk Southern's operations, the arrival of
Covid-19 dealt further disruptions. The railroad struggled with service
issues and delayed shipments that regulators blamed on the operational
changes. The company said it faced labor shortages.
``Our numbers need to improve right now,'' said an August 2020
email sent by a Norfolk Southern senior general foreman to team
members, reviewed by The Wall Street Journal.
The email emphasized the importance of handling trains faster.
``Instructions have been issued on how we are to accomplish this and it
doesn't seem like we are all acting on it. These numbers show that we
are slacking off in the trainyard and have no need for more help!''
The company began unwinding some of its PSR efforts after Mr. Shaw
took over as CEO in May 2022, following nearly three decades at the
railroad. Last summer, Norfolk Southern reopened idled hump yards in
Georgia and Ohio--where trains are broken down, reassembled and sent to
their next destination--to help ease congestion in other places. The
company has also beefed up hiring, employing 1,500 more people now than
a year ago.
Although investors often look at railroads' ``operating ratio''--
figured by dividing operating expenses by operating revenue--``reducing
the OR is not our singular focus,'' Mr. Shaw said at an investor event
in December.
The company pledged not to furlough workers during a downturn,
which it has traditionally done, and said it plans to invest in
additional training during such a period instead.
Mr. Shaw has said he supports a number of provisions in a rail-
safety bill pushed by a bipartisan group in Congress, such as better
notification, training and equipment for first responders, and tougher
requirements for tank cars that hold hazardous materials. He has
supported more funding for research in wayside detectors, which are
devices along tracks that help signal potential equipment problems.
Many unionized workers say the voluminous safety data reported to
regulators doesn't reflect the elevated risks they face. Mr. Wilcox,
66, said he decided to retire as a locomotive engineer at Norfolk
Southern last July in part because he felt the job had become less
safe.
He said he made the trip between the company's rail yard in Conway,
Pa., and Toledo, Ohio, several times a week, passing through East
Palestine each time and always carrying hazardous materials. Because of
pressure to depart without delays, Mr. Wilcox said, sometimes his
trains would be sent out with problems that required him to pull onto a
siding and wait for repairs.
Norfolk Southern declined to comment on the accounts by Mr. Wilcox
or other current and former employees. ``We've got to be data-driven.
There's always going to be anecdotes,'' Mr. Shaw said.
On average, train crews across Norfolk Southern's network take two
minutes to complete the inspection of each car, according to the
company. It said a study found that experienced crews took one minute
to complete the inspection, so a one-minute guideline to inspect each
car--or 30 seconds per side--was ``set as a guideline and documented
for their awareness.''
The company said that if an employee identifies anything that needs
repairs, that would be outside the standard inspection, and the
employee wouldn't be punished for it.
The FRA's Mr. Alexy said his agency is aware of allegations of a
steep reduction in car-inspection times. He said railroads may be
implementing such policies informally instead of through written
guidelines.
One accident the NTSB is investigating occurred near midnight on
Dec. 13 in Bessemer, Ala., when a piece of steel hanging off the side
of a railcar on a parked Norfolk Southern train struck one of the
company's locomotives approaching at 55 miles an hour. The steel piece
pierced the cab of the oncoming locomotive and struck two conductors,
killing one and seriously injuring the second, the NTSB said. The
agency said Norfolk Southern freight-car inspection practices will be
part of its investigation.
Some concerns about the industry's safety culture predate
precision-scheduled railroading. Workers have long complained of their
perspectives on safety incidents being ignored, said former rail-safety
investigators.
At Norfolk Southern, according to some current and former
employees, workers fear reprisals for reporting safety issues to
management. Mr. Alexy of the FRA said, ``We have heard over and over
again that people are afraid to come forward.''
Workers can report issues to labor unions or the company directly.
They also can file complaints with Occupational Safety and Health
Administration offices or with rail regulators such as the FRA.
More complaints have been made to the FRA in recent years, citing
safety incidents or practices such as working too many hours, according
to a Government Accountability Office report in December. The agency
received slightly fewer than 200 complaints about railroad operating
practices in 2020, 500 in 2021 and nearly 400 from January to July last
year.
One problem the agency runs into is that even if it says it will
protect a complainant's identity, the location or timing of a violation
can give clues to who complained, Mr. Alexy said. He said the agency
will go after railroads if they retaliate.
Norfolk Southern's Mr. Shaw said: ``Transparency and candor are the
foundation of our culture. If people see issues which they're concerned
about, they need to raise their hand.''
Norfolk Southern employee Michelle Belt said she consistently
pointed out safety issues to train masters and the superintendent at a
Wayne County, Mich., rail yard, but her concerns were dismissed.
According to a report Ms. Belt made to Michigan OSHA, after she
raised concerns in 2020 about what she saw as a lack of Covid-19
precautions, a trainmaster yelled at her and accused her of not wanting
to work and lying about the local health directive, and two hours later
she was suspended from work pending an investigation by the same
official.
``This display of intimidation has sent a clear message to my
fellow employees,'' her report said.
Ms. Belt, 49, said in an interview that she was investigated by
Norfolk Southern twice more that year on charges such as ``inattention
to duty'' and ``improper use of radio'' that were ultimately dropped.
She said that since staff cutbacks and the closure of a mechanical
shop several years ago, there is too much debris in the yard and too
few workers inspecting switches, mechanisms that help guide trains from
one track to another.
Norfolk Southern has brought up another investigation against her,
and this time it may go to arbitration, Ms. Belt said.
While declining to comment on her account, Norfolk Southern said
that it takes training seriously and that its injury rate has been
improving.
Last summer, former Norfolk Southern manager Cabell Brockman said,
he tried and failed to stop dispatchers from sending a train 150 miles
from Atlanta to Birmingham, Ala., with 28 railcars of steel pipe that
he believed had been improperly loaded.
Two other cars with the pipe had derailed earlier after some pipe
fell from one of them, he said, and he feared that these were a risk.
``If any pipe were to roll off the rail cars, they could have easily
killed one of my employees,'' Mr. Brockman said in an interview.
Mr. Brockman, who worked at Norfolk Southern for two decades,
rising to division superintendent, said that dispatchers insisted on
sending the train because stopping it and removing the cars would have
caused congestion.
He filed a complaint to OSHA in December, alleging he had been
fired in September for repeatedly raising safety issues that placed
rail workers and the public at risk.
Norfolk Southern declined to comment on Mr. Brockman's complaint.
In its written response to OSHA submitted in February, the railroad
said Mr. Brockman was dismissed because he had failed to follow Norfolk
Southern's operations plan and to treat colleagues respectfully. Mr.
Brockman denied those allegations.
For years, Norfolk Southern and its competitors declined to
participate in a voluntary program allowing railroads and their
employees to report minor incidents and close calls, a system that had
success in the aviation industry.
Weeks after the East Palestine derailment, and under pressure from
Transportation Secretary Pete Buttigieg, the rail industry's largest
trade group said that Norfolk Southern and the other biggest freight
lines would join the system. They are ironing out the details of
participation with the regulator and other stakeholders, the FRA said.
Mr. Shaw, referring to the FRA, the Transportation Department and
the NTSB, said: ``Anything that they're doing, where they're taking a
look at us and offering insights as to how we can improve safety, I'm
all-in.''
--Ted Mann contributed to this article.
Article entitled, `` `Do Your Job.' How the Railroad Industry
Intimidates Employees Into Putting Speed Before Safety,'' by Topher
Sanders, Jessica Lussenhop, Dan Schwartz, Danelle Morton, and Gabriel
Sandoval, ProPublica, November 15, 2023, Submitted for the Record by
Hon. Donald M. Payne, Jr.
`Do Your Job.' How the Railroad Industry Intimidates Employees Into
Putting Speed Before Safety
by Topher Sanders, Jessica Lussenhop, Dan Schwartz, Danelle Morton, and
Gabriel Sandoval
ProPublica, November 15, 2023, 6 a.m. EST
https://www.propublica.org/article/railroad-safety-union-pacific-csx-
bnsf-trains-freight
Railroad companies have penalized workers for taking the time to make
needed repairs and created a culture in which supervisors
threaten and fire the very people hired to keep trains running
safely. Regulators say they can't stop this intimidation.
Bradley Haynes and his colleagues were the last chance Union
Pacific had to stop an unsafe train from leaving one of its rail yards.
Skilled in spotting hidden dangers, the inspectors in Kansas City,
Missouri, wrote up so-called ``bad orders'' to pull defective cars out
of assembled trains and send them for repairs.
But on Sept. 18, 2019, the area's director of maintenance, Andrew
Letcher, scolded them for hampering the yard's ability to move trains
on time.
``We're a transportation company, right? We get paid to move
freight. We don't get paid to work on cars,'' he said. ``The first
thing that I'm getting questioned about right now, every day, is why
we're over 200 bad orders and what we're doing to get them down. . . .
If I was an inspector on a train,'' he continued, ``I would probably
let some of that nitpicky shit go.''
Haynes knew that the yard's productivity metrics were hurting and
that the repairs he ordered had a direct impact on his job security.
Just that day, he'd flagged a 40-pound GPS box that was hanging by a
cable off the side of a car. He worried it could snap off and fall on a
colleague's head or go hurling into a driver's windshield. His boss
greenlighted the car to leave anyway.
Haynes had started carrying a digital recorder in case he ever
needed to defend himself. It captured him asking Letcher what would
happen if a defect they let go wound up killing someone. The question
went unaddressed as Letcher issued a warning: If they continued to hurt
productivity by finding defects he deemed unnecessary, he would begin
doling out punishment. He might even have to close the yard's car shop.
``I'm trying to save your freaking jobs,'' he said.
If the public thinks of America's sprawling freight rail network at
all, it typically does so when a train derails, unleashing flaming cars
and noxious smoke on a community as it did this year in East Palestine,
Ohio. The rail industry usually responds by vowing fixes and defending
its overall record, which includes a steady decrease in major
accidents. But a ProPublica investigation has found that those
statistics present a knowingly incomplete picture of rail safety.
They don't count the often-harrowing near misses, the trains that
break apart, slip off the tracks or roll away from their crews with no
one aboard--the accumulation of incidents that portend deeper safety
risks. The government trusts the rail companies to fix the underlying
problems on their own, to heed the warnings of workers like Haynes of
loose hoses that could impair brakes or rotting tracks that could cause
derailments. Unless those mishaps result in major injuries or costly
damage, the companies don't have to report them to anyone.
But as railroads strive to move their cargo faster, that honor
system, ProPublica found, is being exploited. To squeeze the most money
out of every minute, the companies are going to dangerous lengths to
avoid disruptions--even those for safety repairs.
They use performance-pay systems that effectively penalize
supervisors for taking the time to fix hazards and that pressure them
to quash dissent, threatening and firing the very workers they hired to
keep their operations safe. As a result, trains with known problems are
rolling from yard to yard like ticking time bombs, getting passed down
the line for the next crew to defuse--or defer.
Regulators say they can't stop the intimidation that is feeding
this dynamic. The Federal Railroad Administration can remove
retaliators from working on the rails but seldom does, even if an
employee alerts it to harassment in real time. Proving managers' intent
is difficult, a spokesperson said.
And the Occupational Safety and Health Administration, which
enforces workplace whistleblower laws, only probes so deep. It takes
the agency so long to conclude investigations that many workers, tired
of waiting months for rulings, remove their complaints and sue the
companies instead. Once that happens, OSHA has no legal authority to
continue its investigation, barring the agency from exposing repeat bad
actors or patterns in the industry's abuse of whistleblowers.
To do what the government hasn't, ProPublica examined 15 years'
worth of federal lawsuits against rail companies, interviewed hundreds
of workers including managers, listened to hours of audio recorded by
workers and pored over decades of regulatory, judicial, legislative and
industry records. We identified 111 court cases in which workers
alleged they had been disciplined or fired after reporting safety
concerns; nearly 60% ended in settlements with the companies. Three in
recent years resulted in jury verdicts of over $1 million for fired
workers.
Separately, OSHA and Department of Labor administrative judges
found railroad companies violated whistleblower laws in 13 cases since
2018 in which workers voiced safety concerns. Among the railroaders:
one who tried to alert BNSF headquarters to broken wheels, which could
have derailed trains (the company is appealing the case); two who
slowed a CSX train to abide by a federal safety mandate (the company is
appealing the case); and a CSX engineer who refused to work a 12-hour
shift just hours after a previous shift without the period of rest
required by law.
``It's really hard to stay awake sometimes,'' the engineer, Chad
Hendrix, had testified, before CSX worked out a settlement with him.
The Association of American Railroads says that the industry's
sterling safety record ``stands in stark contrast'' to assertions made
in this story. ``From the day a trainee first reports on the job,
railroads instill the message that every employee has a role to play in
keeping themselves, their colleagues, and communities safe. Safety
protocols are ingrained in daily operations, and employees are
continuously empowered to report safety concerns so proactive steps can
be taken to prevent a future accident,'' the group said. (Read the full
statement here.)
The companies mentioned in this story largely declined to comment
on specific cases. (Read the full statements by Union Pacific, BNSF,
Norfolk Southern and CSX.) They said they encourage their workers to
voice safety concerns and tout internal hotlines where employees can do
so anonymously. They say they do not tolerate retaliation.
But ProPublica found that companies retained and promoted
supervisors who juries found had wrongfully terminated employees. And
workers said that they had been targeted after making safety reports
they thought were anonymous, or that they were ordered to stop calling
safety hotlines, or that they'd simply grown apathetic, seeing hazards
they had raised go unaddressed. Two BNSF employees sustained life-
changing spinal injuries when their train crashed into a 6-ton tree
that had fallen on the tracks; workers had warned their bosses that the
tree was about to fall.
In interviews, one anguished rail worker after another said they
have no place to report their concerns and that their clashes with
management have triggered panic attacks, elevated blood pressure and
thoughts of suicide. In 2011, a Norfolk Southern car inspector, under
mounting pressure to stop reporting car defects, drove to work, clocked
in and shot himself. His death shook the industry but didn't change it.
Norfolk Southern did not comment.
Karl Alexy, chief safety officer for the FRA, disagrees with the
industry assertion that it is the safest it's ever been, noting that
grievous worker injuries and deaths haven't changed in over a decade.
``We're not seeing an improvement in what's really important: the lives
of the workers,'' he said. He also said worker fear is real and keeps
critical information from regulators. ``It definitely influences
safety,'' he said, ``definitely for the worse.''
Haynes, the Union Pacific inspector, said he was tempted to
overlook hazards after Letcher's threat but came across a problem three
weeks later that he couldn't ignore: a car with faulty brakes, on its
way out of the yard. Hayes flagged it for repair, but his manager again
overrode him, so Haynes reported what happened to the FRA that morning.
Though the agency has the capacity to inspect only about 1% of the rail
system annually, its regulators can compel companies to make repairs,
giving them deadlines and levying fines when they fail to meet them.
The regulator issued a violation, Haynes said.
About two weeks after Haynes' report, Union Pacific closed the
yard's car shop, furloughing Haynes and a number of his colleagues
indefinitely. The workers filed a complaint to OSHA, sharing the
recorded threat and alleging retaliation. They asked for an expedited
ruling so they could move the case to the Labor Department's Office of
Administrative Law Judges, the next step. OSHA administratively
dismissed the case, and the one in the new venue is pending, according
to Haynes' attorney.
Letcher, who is still at Union Pacific, did not respond to attempts
to reach him. The company did not address any of the statements on the
recording, but it told ProPublica any claim that the car shop was
closed in retaliation is false. ``The shop was closed in 2019 as part
of our efforts to streamline the railroad,'' the company said, which
means ``removing how many times the car is `touched.' Every time that
happens, it adds about 24 hours to a car's journey, and our goal is to
move them as quickly and safely as possible for our customers.''
In reports to investors, Union Pacific touts these efforts as a key
part of its strategy to maximize profits. Jim Vena, who is now chief
executive officer, even mentioned the Kansas City closure as one of the
moves that contributed to record efficiency in 2019. ``We've made a
number of changes to our operations in the last year and the results
have been outstanding,'' he told shareholders in an earnings call. ``As
we move forward, look for us to continue pushing the envelope.''
Matt Sweeney, Chris Johnson, Roman Berndt, Corey Schanz and Bradley
Haynes. The five were present during the conversation Haynes recorded
with management, and they were furloughed.
Credit: Elise Kirk for ProPublica
Time Is Money
Much like the veins and arteries that transport blood through our
bodies, America's vast freight rail network quietly powers the national
economy, moving 1.6 billion tons of product a year over 140,000 miles
of track in trains that can each weigh as much as a fleet of jumbo
jets. As they trundle through communities carrying cars packed with
explosive or hazardous materials, the companies that run them insist
safety is their top priority.
But the Association of American Railroads, in its online marketing,
describes a powerful undercurrent that pulses through every mile of
those tracks: ``In the digital age, speed and efficiency are
everything.'' Customers who make one-click purchases expect their
products delivered the very next day. And demand is only growing--the
Federal Highway Administration projects that freight shipments will see
a 30% increase by 2040. Governments can't afford to build roads quickly
enough, the industry group argues, but freight trains are already
adapting: ``Trains have been improved to carry more cargo in a single
journey.''
ProPublica previously delved into the dangers of precision
scheduled railroading, in which companies are running longer trains
with smaller crews, adhering to tight schedules. Anything that slows
trains can have job-ending repercussions.
On the busy rail corridor running through northwest Atlanta, there
was a notorious stretch of track known for tripping up engineers. Larry
Coston didn't feel like he could navigate the large number of signal
lights safely going the speed limit of 60 mph, so he radioed the
dispatcher that he'd be driving at a slower speed, a 6 to 8 mph crawl,
in an effort to avoid an accident.
Norfolk Southern fired him for ``intentionally'' delaying his
assignment. The company declined to comment on specific cases. But his
boss, and his boss' boss, testified in his ongoing lawsuit that his
judgment didn't matter; engineers should travel at maximum authorized
speeds regardless of their safety concerns. ``Run your train,'' his
direct supervisor, Travis Bailey, a senior road manager of engines,
said in a deposition. ``Do your job.''
Supervisors have strong incentives to push their workers like this.
Court records show that several freight rail companies rate and rank
their managers using metrics that reward them for trains staying on
schedule and penalize them for disruptions--even when the delays are
caused by safety precautions. ``Slow order delays,'' for example,
calculate the amount of time lost from slowing trains because of unsafe
track conditions.
Lewis Ware, a senior general foreman in Norfolk Southern's
Savannah, Georgia, yard, had a reputation for keeping a close eye on
bad orders. In 2019, car inspectors Kelvin Taylor and Shane Fowler
filed a federal complaint alleging that Ware had repeatedly removed
their repair order tags, allowing dangerous cars to leave the yard.
They said Ware told them he had a quota--no more than 10 a week--
regardless of the actual number of defects the inspectors found. (Ware
disputed that figure, arguing that his goal was actually 20 bad orders
at the time.)
Numbers like ``bad order counts'' can be used on scorecards to rank
a manager. For example, Ware's supervisor said in a deposition that
metrics related to bad orders made up 15% of her final score.
The supervisor said that Norfolk Southern discourages managers from
unilaterally removing repair tags and that Ware had been advised to
stop.
The federal lawsuit filed by the workers was settled in October
under confidential terms, and Ware, who still works for the company,
declined to comment for this story. A Norfolk Southern spokesperson
noted that OSHA sided with the company before the car inspectors filed
their lawsuit, and said in a statement that it ``does not tolerate
retaliation of any kind'' and has ``partnered with our unions and their
leaders to improve safety and collaboration.''
To assess the internal pressure on rail supervisors, ProPublica
interviewed former managers who worked at CSX, Norfolk Southern and
Union Pacific between 2011 and 2021. They confirmed that fewer safety
reports made their jobs easier: less time spent driving miles up and
down territory to eyeball a ``complainer's'' claims, less time trying
to fix the issue and less time doing paperwork.
For people in their jobs, they said, time literally is money.
Across the industry, managers receive year-end bonuses tied to
performance, often defined by how efficiently they move trains through
yards. The managers estimated that on a $100,000 base salary, someone
with a good evaluation can earn a $20,000 to $25,000 cash bonus. These
payouts can drop dramatically if managers fail to meet certain metrics.
In Minnesota, a BNSF track inspector named Don Sanders recorded his
manager, Keith Jones, berating him for writing up defects that
reflected poorly on Jones. ``I'm about to lose my job, my family's
welfare,'' Jones, a division engineer, said in one recording. He would
later testify that his annual bonus was tied to his year-end
evaluation, which factored in the sort of defects flagged by Sanders.
But Jones' supervisors heaped on praise after he helped fire Sanders.
His review: ``Your team is injury-free, slow orders are at an all time
low, relationships are good. Don Sanders is no longer working for
BNSF.''
Jones declined to comment other than to emphasize that Sanders was
fired for time theft, not in retaliation for safety reporting. Sanders
claimed the time theft investigation against him was retaliatory. A
federal jury sided with Sanders and awarded him over $9.4 million in
2021 for his wrongful termination; because of a cap on damages, the
award was later reduced to $2.3 million. BNSF, which did not comment on
the case, is appealing.
Sanders lost more than money from the entire episode. His estranged
wife testified that he sank into a deep depression after he got fired,
slept all day and was no longer the attentive partner and father he'd
once been. ``I lost my husband, basically.''
Accountability Is Elusive
Track inspector Brandon Fresquez had an odd sense of deja vu in
2015 as he performed his duties in a BNSF hub in Denver. He was seeing
the same defects in the same spots he'd previously flagged for repair.
Sometimes the company's computer system said they'd been fixed;
sometimes the entry was missing entirely.
Fresquez and some co-workers suspected their manager, roadmaster
Michael Paz, was falsifying repairs at the direction of his boss. They
viewed Paz as a bully who they said spoke openly about badgering
inspectors into changing their safety reports and firing those who did
not fall in line.
BNSF maintained an anonymous hotline for employees who wanted to
report unsafe conditions. According to trial testimony in a lawsuit
Fresquez later filed, nearly a dozen calls had come in about Paz. The
inspectors would later testify that they believed the company told
local managers, including Paz, which of them had called. ``They were
trying to nitpick every little thing we did and trying to get us in a
disciplinary action,'' testified Jacob Yancey, a worker responsible for
making track repairs. ``There was a list of people they wanted to meet
with afterwards, and everybody who had made that phone call was on that
list.''
Fresquez, who questioned the confidentiality of the hotline, took
his concerns straight to the FRA after Paz asked him to change
information about a defect so a track would stay in service. An
official told him that would be a violation of safety standards,
Fresquez said, but the FRA didn't do anything more to intervene.
Fresquez said he came back to Paz relaying what the FRA official
had told him and saying he would not lie about track defects. Paz
declined to comment when reached by ProPublica, but he denied
falsifying records when he was later called to the stand to testify.
Paz gave inconsistent answers in his deposition and trial testimony
about whether he knew Fresquez called the FRA. What is clear is that by
the end of that day, Fresquez was on leave for insubordination. The
railroad later fired him.
And so, Fresquez began his slog down the well-worn track of trying
to seek justice for his perceived retribution--one that, for many
railroaders, is a yearslong grind.
Workers who contend that a railroad company violated their
whistleblower rights must first file a claim to OSHA. The agency can
accept complaints about harassment and threats before a worker is
punished, but those can be more difficult to prove. More commonly, the
agency becomes involved only after the employee is disciplined or is
sitting at home without a paycheck.
It can take a year or longer for OSHA to complete an investigation.
A spokesperson for the Department of Labor told ProPublica that while
the optimal caseload for a whistleblower investigator is six to eight
cases, the current average caseload is 17.
If 210 days have passed without an OSHA finding, workers can remove
their cases and file a lawsuit in federal court. This can win them a
big check, but it essentially allows the company to dodge any
government ruling of retaliation. Take the case of Johnny Taylor, fired
from Union Pacific under circumstances similar to Fresquez. After
waiting seven months for OSHA to weigh in, he withdrew his
whistleblower complaint and sued his former employer. Taylor was
awarded $1.3 million after a jury found the company wrongfully
terminated him. But because the OSHA case dead-ended, Union Pacific was
never subjected to a ruling about whether it violated federal
whistleblower law, which could have added to its public record about
how it treats its employees.
In Fresquez's case, OSHA quickly returned a finding that BNSF had
retaliated against him. But knowing the company would likely appeal,
his attorney, Nick Thompson, wanted to get the case in front of a jury
sooner; he said most of his clients are often ``destitute'' within a
year or two of losing their jobs. So began a gantlet of questions and
cross-examinations, a trial and an appeal. ``You're a little guy trying
to battle a million-dollar company,'' Fresquez said. ``I was in court
basically for seven years. I lost sleep. I gained weight.'' Some days,
he wished he could disappear.
In 2019, a jury found that he was wrongfully terminated; he was
awarded $1.7 million. An appellate court upheld the verdict late last
year. BNSF declined to comment on this or any other case, but it wrote
in a statement that ``at BNSF, the safety of our employees always has
been and always will be the most important thing we do. We believe
that's reflected in our record over the last decade, which produced the
lowest number of injuries in our railroad's history.'' Paz is still a
supervisor at the company.
Fresquez's attorney got a sizable chunk of the payout, and what is
left for Fresquez, he said, can never restore what he lost. ``I'm
fucked up, honestly,'' Fresquez said. ``My anxiety is so, so, so bad
now.''
The change is palpable, Thompson said, serving as a cautionary tale
to Fresquez's former colleagues about what happens when you go up
against a railroad company.
``Make no mistake about it,'' Thompson said. ``The winner of
Brandon's case was BNSF.''
Reaching for a Lifeline
This June in Hernando, Mississippi, a train pulling 47 tanker cars
filled with highly flammable propane somehow escaped from its crew. The
workers had parked their train to remove a section of cars. When they
returned, they discovered that the remaining 90 cars, including the
tankers filled with propane, had begun rolling down the tracks on their
own.
The crewless bomb train traveled for 3 miles through two public
crossings until it gradually came to a stop.
``Oh my God. That's terrifying,'' U.S. Rep. Melanie Stansbury, D-
N.M. said after ProPublica informed her of the incident. ``Unbelievable
that in the year 2023 this is happening.''
Because it didn't crash or derail, neither Grenada Railroad, the
small company that ran it, nor its parent company, Gulf & Atlantic
Railways, needed to tell the FRA. Laws and rules don't require
companies to tell regulators when they lose control of a train, even
one carrying explosive cargo.
But word got around. Alarmed railroaders encouraged the workers to
report the close call to regulators; someone needed to investigate what
happened to prevent it from happening again, they argued.
The workers were too afraid, said Randy Fannon, a national vice
president of the Brotherhood of Locomotive Engineers and Trainmen.
``Evidently the employees felt that they couldn't acknowledge it or
report it for fear of retribution,'' he said.
A week after the incident, an FRA official got a text message from
someone other than a Grenada employee, which prompted a government
investigation. Gulf & Atlantic declined to comment on the incident. The
FRA told ProPublica penalties are forthcoming.
``That Grenada personnel were concerned for their personal well-
being [and didn't] report the incident is unfortunate and diminishes
safety on that railroad and the industry in general,'' Alexy wrote in
an email to ProPublica.
There is an alternative: the Confidential Close Call Reporting
System, which the FRA piloted in 2007 and fully implemented in 2014. It
allows railroaders to anonymously disclose safety concerns or close
calls to a third party, NASA. Officials at the space agency screen
them, and, after 30 days, forward them to a team of railroad and FRA
officials. But the program is voluntary; just 25 of the nation's
roughly 800 railroads participate; none of the six largest freight
companies, the so-called Class 1s, do.
This year, after the East Palestine derailment, lawmakers and
Transportation Secretary Pete Buttigieg pushed for them to join the
system. They all originally agreed to, but months later, progress has
stalled. Rail companies and their industry representatives say that
they don't want employees to have blanket immunity from discipline and
that NASA takes too long to communicate information on hazardous
situations. They say their internal hotlines are more effective.
Discussions are ongoing, and a spokesperson for the Association of
American Railroads said the companies are ``working in good faith to
get an agreement.''
Stansbury, the New Mexico lawmaker, along with U.S. Rep. Jamaal
Bowman, D-N.Y., introduced the Rail Worker and Community Safety Act in
September, which would create a close call reporting system, prohibit
retaliation for use of sick leave, increase funding for FRA inspectors
and expand the U.S. transportation secretary's power to create rules.
Alexy said his agency is exploring revisions to federal law that
could expand the kind of incidents that must be reported to the
government, including runaway trains like the one in Mississippi, and
is conducting safety audits on all of the large railroad companies--
including interviews that will give employees opportunities to say how
they are treated when they report safety concerns. He said the work
will be done by the end of 2024 and shared with the public.
Deidre Agan, a BNSF conductor in Forsyth, Montana, hopes those
kinds of changes will help. ``I don't want to see anybody else have to
struggle and suffer through the stuff that I had to put up with,'' she
said.
In the gloom of a late summer evening in 2016, she was in a
locomotive going over 50 miles per hour when the engineer, Scott Weber,
rounded a curve and saw an object on the tracks that seemed to loom as
big as a house. She heard him yell, ``Duck!'' and the train slammed
into what turned out to be a 6-ton cottonwood tree that had fallen
across the tracks.
The two workers were thrown from their seats as glass from the
windshield sprayed the cabin. The locomotive dragged huge chunks of the
tree down the tracks for nearly a mile before it finally stopped.
In a flurry of emails between BNSF managers in the direct aftermath
of the crash, one thing became clear: They'd been warned. According to
conductor Don Purdon, everyone in the yard had noticed the tree at some
point--its precarious lean, its dead bark. Five months before the
collision, he'd reported it to an internal BNSF hotline. His managers
promised to look into it but ultimately did not cut the tree down.
Just before the crash, Purdon's managers forbade him from using the
hotline because he was calling it too often, Purdon said. Then, they
shut down the hotline altogether. ``They tried to sweep it under the
rug and say it wasn't reported,'' Purdon said.
BNSF declined to comment on the case. In depositions, Purdon's
manager claimed that decisions about the anonymous hotline had nothing
to do with the accident. The best way to report hazards, he said, was
to tell an immediate supervisor. That's the very reporting method
workers told ProPublica they feared most.
Weber had surgery to implant a metal plate and eight screws in his
neck; the injuries pushed him into an early retirement.
And Agan, nursing a herniated spinal disc and a torn rotator cuff,
was fired two days after the crash; she'd recently been written up for
missing a deadline to renew one of her certifications. With no job or
health insurance, there were days she remained in bed and cried. She
self-medicated with alcohol and developed a severe drinking problem.
After more than two years in arbitration and in pain, BNSF
reinstated Agan and she finally had spinal surgery. She's been sober
for a year and a half.
She said she hopes that speaking out will reveal the atmosphere of
fear that she and her colleagues operate in every day, but her
expectations are low.
``I honestly don't think anything will help because, you know,
money talks,'' she said. As long as the companies continue to profit,
``they really don't care.''
Article entitled, ``When Railroad Workers Get Hurt on the Job, Some
Supervisors Go to Extremes to Keep It Quiet,'' by Topher Sanders, Dan
Schwartz, Danelle Morton, Gabriel Sandoval, and Jessica Lussenhop,
ProPublica, December 16, 2023, Submitted for the Record by Hon. Donald
M. Payne, Jr.
When Railroad Workers Get Hurt on the Job, Some Supervisors Go to
Extremes to Keep It Quiet
by Topher Sanders, Dan Schwartz, Danelle Morton, Gabriel Sandoval, and
Jessica Lussenhop
ProPublica, December 16, 2023, 5 a.m. EST
https://www.propublica.org/article/railroad-worker-injuries-union-
pacific-csx-cn-norfolk-southern
Railroad officials have lied, spied and bribed to keep workers'
injuries off the books. ``Don't put your job on the line for
another employee.''
Train machinist Bobby Moran suffered a work injury that permanently
damaged his hand and cost him two fingers. Union Pacific fired him
after the incident. Credit: Rachel Boillot for ProPublica
When questioned by federal officials or faced with an accident, the
nation's powerful freight railroad companies say they are among the
safest employers in America and tout their injury records to prove it.
But those statistics belie a troubling dynamic within the
companies, ProPublica found: a culture that blames workers when they
get hurt and motivates supervisors to go to extreme, and sometimes
dangerous, lengths to keep injuries off the books.
The playbook is scattered across the pages of sworn court
testimonies and complaints to workplace regulators. One supervisor said
in a deposition that he drove a track repairman, who had been vomiting
and stumbling from heat stroke, to a job briefing site an hour away
instead of a hospital. Another admitted he paid a carman to hide his
head injury. A third accompanied a hurt worker into an emergency room,
according to a recent complaint to regulators, and demanded,
successfully, that a doctor change his discharge record so that the
railroad would not have to report the injury to the government.
Other railroad workers told ProPublica they had gotten hurt on the
job but chose to keep it quiet, saying they were aware of what happened
to those who talked.
The allegations of harassment and retaliation came alive in
hundreds of interviews conducted by reporters and thousands of records
they reviewed, including federal lawsuits stretching back 15 years,
complaints to the Occupational Safety and Health Administration as
recent as this summer and hours of audio recordings captured by
workers.
The reporting showed how railroad officials pushed arguments that
workers faked their accidents or were at fault for them, at times
hiding evidence to the contrary. The officials then punished and fired
workers, including those who lost fingers and limbs, for reasons that
fell apart when tested in court.
Judges, juries and regulators found several of these firings unjust
and illegal; documents of their official findings burned with outrage:
``Reprehensible.''
``A culture of retaliation.''
``Pattern and practice of willful misconduct.''
``There is no justice for employees injured on the job.''
Though the companies won at least 10 of the cases, every one of
America's six largest freight rail operators, the so-called Class 1s,
settled lawsuits with workers who alleged they were retaliated against,
harassed or fired after injuries; of 185 suits, at least 111 were
resolved this way. Several more are ongoing, and at least a couple
resulted in jury verdicts for the injured workers.
In addition, in the past five years, OSHA regulators found merit to
at least six complaints alleging retaliation, and administrative law
judges working for the Department of Labor sided with workers in at
least six more cases within that time period. Regulators acknowledge
these cases are likely an undercount, because not all workers will go
through the arduous process of filing a complaint or lawsuit.
Several officials who investigate worker injuries told ProPublica
that the rails are unique in how aggressively they deal with hurt
workers. The antagonism is baked into railroad culture, ProPublica
found.
In other industries, employees can draw workers' compensation, no
matter who is at fault for their injuries; in return, they are
prevented from suing their companies. The railroads, however, are
governed by the Federal Employers' Liability Act, which allows hurt
workers to sue and get bigger payouts but requires them to prove their
company was at fault.
Layer on top of that company performance metrics and bonus systems
that punish managers for reporting injuries. ``We're constantly going
up against that, and it's very frustrating,'' said Michael Wissman, who
audits railroad companies for the Federal Railroad Administration,
which oversees rail safety. He said he recently set out to investigate
an injury an employee's colleague reported, but then, when he asked the
worker about it, the man denied he was hurt enough to need government
attention and seemed hesitant to say more.
``I feel for the employee if he was fearful for his job,'' Wissman
said. ``My hands are kind of tied. I have nothing to go on.''
Congress has known for decades of the railroad industry's
propensity for hiding and lying about worker injuries. It held a
landmark hearing in 2007 to examine the practice. Congressional
staffers found government reports that identified ``a long history'' of
railroads underreporting injuries, deaths and near misses. They had
identified more than 200 cases in which workers said they were harassed
following injuries and lined up a number of them to speak. ``We are
going to hear some very startling and dismaying testimony,'' House
Transportation and Infrastructure Committee Chairman James Oberstar
said at the beginning of the hearing, ``but it has to be laid out in
the public.''
In the wake of those hearings, Congress passed an update of the
Federal Railroad Safety Act in 2008, which toughened safety rules,
oversight and whistleblower protections and specified that railroad
companies had to ensure their injured workers got prompt medical care.
But 15 years later, ProPublica found, many of the problems persist,
in large part because many of their drivers persist. ``I believe it's
linked to their bonus structure,'' Wissman said of the rail companies.
``There's no ands, ifs or buts about it.''
The Association of American Railroads, the industry's lobbying arm,
did not comment on those incentives but said employee safety has
improved because of the companies' concerted efforts.
``Railroads patently reject the unsubstantiated allegation that
there is a systemic safety culture lapse or widespread underreporting
of injuries,'' association officials said in a statement. ``Isolated
incidents or behaviors do not reflect an industry-wide problem or
account for the thousands of professional railroaders who work safely
and responsibly every day. Let us be clear: there is no distinction
between railroad culture and safety culture. Railroad culture is safety
culture.''
The railroad companies mentioned in this story echoed those points,
saying their rules require them to promptly report injuries and forbid
retaliation against hurt workers. ``Allegations that managers are
incentivized to hide or ignore injured employees are false,'' a Union
Pacific spokesperson said in a statement. Read the companies' and AAR
statements.
Karl Alexy, chief safety officer for the FRA, said there is a
``yawning gap'' between what he hears from top leaders and the
management culture on the ground level. ``These guys up at the
headquarters certainly have the perspective that it's unacceptable and
they don't want it to happen,'' he said. In fact, according to the FRA,
Union Pacific disciplined one or more managers this summer for
misclassifying injuries so that they didn't have to report them to
regulators.
``But then they'll turn around and put these unrealistic
expectations on these managers out in the field,'' Alexy said, ``and
[the managers] are like, `I got to do whatever I can do, because
otherwise, I'm going to lose my job.' ''
ProPublica previously reported about how, in a quest to maximize
profits, railroad companies are pushing managers to keep trains moving
at all costs by using performance metrics that penalize them for
delays, even those caused by fixing safety hazards. Those scorecards,
which can dictate five-figure bonuses, also tally worker injuries. But
it's not just about money.
ProPublica spoke with seven railroad workers who were managers at
CSX, Norfolk Southern, Union Pacific and Canadian National between 2011
and 2021. Most are still employed by those companies. All described an
industry philosophy that deems every injury preventable--and the fault
of the employee and their manager.
Having a spate of injuries can kill a career, they all said. ``It
decides who is on the fast track for promotion . . . and it decides who
fizzles out,'' one manager said. Another said that when he was first
promoted, he slammed his finger in a train door and broke it. ``There
was no way in hell I was going to report that to anybody,'' he said.
Today, his finger is still bent.
None of the former managers believed that employees should escape
discipline for injuries due to sloppiness, poor oversight or failure to
follow procedures. But they said the railroad's prosecutorial approach
to handling injuries includes those no one could have avoided.
As supervisors, they all said, the injuries they dreaded most were
those serious enough to report to the FRA, because they invite time-
consuming government intervention and ire from higher-ups who brag
about their safety record to customers, shareholders and the public.
Federal regulations require companies to report any injuries that
result in a worker being prescribed certain medications, missing time
from work or being assigned to light-duty work.
That context helps explain some of the behavior ProPublica
discovered.
This August in Minnesota, Canadian Pacific Kansas City bridge
specialist Robert Johnston smashed his knee after his leg fell between
railroad ties. He said his manager called him repeatedly while he was
getting an X-ray at the hospital. ``He's like, I will get you whatever
you need, over the counter,'' Johnston said. ``Anything that you need
if you don't take prescription drugs.''
Johnston had no fractures but was still in pain, his knee swelled
to double its normal size, so an emergency room doctor told him to take
medicine and a day off from work. But when his bosses later read his
discharge papers, they deemed them unacceptable, Johnston told
ProPublica and said in a complaint he filed with OSHA.
In the complaint and interview, he said Nate Lund, one of his
supervisors, told him they needed to go back to the emergency room and
get the papers changed. Johnston said he refused, but Lund insisted.
``We sat there and sat there and he hounded me and hounded me,''
Johnston said. Desperate to go home, Johnston said, he relented. (When
reached for comment, Lund hung up on a ProPublica reporter and later
did not respond to questions sent by text.)
At the hospital in Wabasha, Johnston said Lund took over, telling
medical staff he needed the paperwork to change. The doctor, Johnston
recalled, was beside himself, shaking his head in disgust. ``Fucking
railroad,'' he recalled the doctor saying, and then mouthing to him,
``Get a lawyer.'' Johnston recalled Lund asking the doctor if he could
retype the discharge papers. The doctor refused; the most he would do
is cross out the instructions in pen, leaving the original instructions
plainly visible.
The original papers given to Johnston by a doctor. Redacted by
ProPublica. Courtesy of Robert Johnston.
Despite the discomfort in his knee, Johnston said, he went to work
the next day and his managers were happy to see him and very
accommodating. ``I mean, they literally would have given me a La-Z-Boy
and fed me grapes,'' he said. ``They did not want me to do anything,
but they didn't want me to have a day off. It was really weird.''
Johnston resigned from the railroad about three weeks after his
accident. In a statement, Canadian Pacific Kansas City said Johnston's
story ``does not align with the information [the company] has regarding
this situation'' and declined to comment further. An OSHA investigation
is pending.
An earlier case peels back the pressures managers face when their
workers get injured.
In 2015, Pierre Hunter, a general supervisor at Illinois Central
Railroad, a subsidiary of Canadian National, got a call from a higher-
up after one of his employees, carman Cameron Davis, hit a pothole
while driving an ATV in a Memphis rail yard and damaged it. Word had
gotten around that Davis had gotten hurt in the accident.
Hunter's supervisor Darrell Hoyt wanted Hunter to make sure the
injury didn't have to be reported, Hunter said in a recorded statement
with Davis' lawyers. ``You need to get that fixed. Handle it. Do what
you got to do,'' Hunter said Hoyt advised him. ``Don't put your job on
the line for another employee.''
Hunter said he was certain his job hung in the balance as he
repeatedly called Davis and pressured him not to tell anyone he'd had
doctors look at his head, which was throbbing and swollen. Davis
recorded some of the calls, which later became part of a lawsuit
against the company. ``Just stick to your story if anybody asks. You
never went to a damn hospital. You ain't injure yourself at all,''
Hunter said. ``Don't say shit else to . . . no goddamn body, not a
fucking soul on CN property.''
``What'd the doctor say?'' Hunter continued. ``They give you
something or they say you'll be all right? . . . No medication, none of
that shit, right?''
In the recorded call, he advised Davis to cover the big bump on his
head with a knit hat so that he wouldn't arouse talk among his co-
workers.
Hunter later told Davis the best way out of trouble for the
accident was to sign a statement admitting it was his fault, not tell
anyone about his injury and take a 15-day suspension without pay.
``Take my word, they want to get rid of you,'' Hunter recalled telling
Davis. Davis said he couldn't afford to be off for two weeks, but
Hunter had a way around that, too: ``Bribe him to not report it,'' he
said in his statement to Davis' lawyers. While Davis served out his
suspension, Hunter gave him $1,500.
Davis ultimately reported the injury anyway. About six months
later, he was fired, accused of violating safety rules like not
maintaining the proper distance away from moving equipment and working
without protective eyewear. ``I was targeted because of what
happened,'' Davis told ProPublica. ``It was retaliation for the
injury.''
Once the railroad heard the taped phone call, it also fired Hunter.
Emails, calls and social media messages to Hunter went unanswered.
Hoyt told ProPublica in a message that he didn't remember the affair
and that it wasn't ``consistent with company policy or my application
of safety commitments.'' Canadian National settled the case with Davis
for an undisclosed amount. A spokesperson told ProPublica the railroad
doesn't comment on ``individual personnel cases.''
During the 2007 hearings on Capitol Hill, workers testified about
being left to die by the tracks while railroad managers ignored pleas
for care. The 2008 update to the Federal Railroad Safety Act required
the companies to provide ``prompt medical attention'' and mandated that
railroads bring injured workers to the hospital as soon as they ask.
About five years after the harrowing congressional testimony,
outside Chicago, a supervisor was driving a Union Pacific machine
operator, Jared Whitt, to the hospital. Whitt's lips felt as if they
were about to burst and his arms and legs tingled, he testified as part
of a lawsuit he later filed. He closed his eyes and thought about his
five kids. Was he dying? ``Please,'' he recalled telling his manager:
``Get me there. Please hurry.''
Whitt had suffered a heat stroke as June temperatures climbed to
about 100 degrees, and his manager, work equipment supervisor Dave
Birt, believed Whitt was going into cardiac arrest, Birt said in his
deposition. They had just started toward the hospital when Birt's
cellphone rang. ``Well,'' Whitt heard Birt say, ``what do you want me
to do?'' A pause. ``I'm no doctor, but when a man's arms are numb and
tingling, I'd say he needs to go see one.'' Pause. ``I'm pulling
over.''
Birt held the phone to Whitt's ear. Whitt couldn't hold it himself
because his numb arms had retracted, his fists clenched at the top of
his chest, Whitt said in his pretrial deposition. The man on the other
end was Birt's boss, manager of track programs Talmage Dalebout. ``Why
don't we just bring you back here to the job site and get you cooled
down,'' Whitt recalled Dalebout saying. ``If you get cooled down,
you'll probably be OK.'' Birt declined to comment when reached by
ProPublica. Dalebout didn't respond to calls, texts and social media
messages.
Union Pacific claims in the lawsuit that Whitt never requested to
be taken to the hospital and, when Birt says he asked, Whitt chose the
job site. But experts say workers suffering from heat stroke--a
potentially life-threatening condition marked by confusion in which
body temperatures can rise to 106 degrees--lack the faculties to make
any decision for themselves; someone should always take them to the
hospital regardless of what a worker requests. In hindsight, Birt said
later in deposition, he wished they had continued to the hospital.
Back at the job site, Whitt testified that he remained in Birt's
truck for some time. A co-worker brought him Gatorade and bottles of
water. Then he recalled ending up in a trailer, where people were
pouring cold water over him and his co-workers were rubbing his arms to
restore circulation, according to Whitt. He didn't get to the hospital
until some four and a half hours after his body started tingling and
his consciousness began slipping, according to court records. His
roommate drove him.
The heat stroke partially disabled Whitt, he said in his court
deposition. He no longer had the strength to work at the railroad and
for years struggled with his left arm and hand, which went numb
whenever he raised it above his shoulders. Two years later, Whitt had
surgery to restore movement to his left arm. The surgeon cut away part
of his left pectoral muscle and removed his left upper rib. Whitt sued
Union Pacific, and the railroad settled with him for an undisclosed
sum.
Whitt, who now works as a home inspector, said he still can't
believe that a manager intervened to redirect him away from the
hospital. ``It's unfathomable,'' Whitt told ProPublica. ``I can't
imagine treating a human that way.'' Today, he says, his arm remains
tight, with a limited range of motion and numb at the armpit.
The cautionary incident didn't appear to influence what happened
three years later, when another Union Pacific worker fell ill on a
blistering hot day in Kansas, according to records from a lawsuit he
later filed.
Guillermo Herrera worked in the same road crew as Whitt, which
roves throughout the company's western region repairing tracks. On July
26, 2015, Herrera's worried co-workers called higher-ups. The track
repairman had vomited and was out of it, according to the court
records. When the bosses came to get Herrera, he needed assistance
getting into a pickup truck. He whispered a plea for help into his
foreman's ear; ``Ayudame,'' he said, according to a court deposition.
Considering the shape he was in, Herrera's co-workers assumed he
was being taken to a hospital, they testified. And indeed, there was
one 21 minutes away. But instead, track supervisor Charley Diaz drove
him to a job site to cool down, according to his deposition. The job
site was about an hour away.
Once again, Union Pacific defended its actions, saying that Herrera
would have been taken to a hospital if he had asked, and that Herrera
at one point said he wanted to go back to his motel room. (Herrera
contends that he was in and out of consciousness but kept saying the
word ``hospital.'') Either way, Diaz himself suggested he was concerned
about Herrera's mental state. ``I told him to stay awake,'' Diaz
testified. ``I didn't want him going to sleep or anything like that, so
I just watched him and asked him how he was feeling mostly.'' (Diaz did
not respond to calls and text messages.)
Diaz drove Herrera to the job briefing site, a boxcar office on
wheels. Safety captain Bobby Steely testified that he checked on
Herrera in the truck several times, each time asking him if he wanted
to go to a hospital. (Steely declined to comment when reached by
ProPublica.) After about 20 minutes, he said, Herrera finally said yes.
Herrera was ultimately diagnosed with heat stroke, which profoundly
altered his life.
In the year that followed, he later testified, he could no longer
drive safely or get a decent night of sleep. His morning walk around
the block was so difficult, he had to sit down for a half hour or so
until the tingling in his legs dissipated. His days were all about rest
and heat avoidance, and he did physical therapy six hours a week. His
family barred him from the kitchen because his memory issues had caused
him to start two small fires.
He sued Union Pacific in 2015, a case that settled for an
undisclosed amount. Union Pacific did not comment on either of the
cases, but a company spokesperson said in a statement that nothing is
more important than safety. ``Employees complete annual training on how
to respond to and handle injuries,'' the spokesperson said.
An injury can paint a target on a worker's back, ProPublica found.
It happened to Montana conductor Zachary Wooten, who damaged his
right wrist so severely in 2015 after falling from a BNSF train that he
needed surgery. The culprit, he said, was a defective latch on the
train; he struggled to open it and felt a stab of pain as his wrist
popped. When he tried to climb back up onto the engine after inspecting
the train, his wrist gave way and he fell to the ground.
From that moment forward, court and company records show, his
supervisors and BNSF lawyers searched for ways he could have come to
work already hurt. ``They always tried to blame it on something else
that happened at home and say you dragged it into work,'' said Wooten's
union representative, retired switch foreman Mark Voelker.
According to records from an internal company hearing, a
superintendent of operations had visited 27-year-old Wooten when he was
in the emergency room and asked him how he got a scrape on his other
arm. Wooten, who was on pain medication, told the manager he got the
rug burn during sex a day before the injury--an episode that also
involved his bed breaking. The company took that morsel of information
and used it to insinuate that's also how he damaged his hand, records
show. ``I am not comfortable answering questions about my sex life,''
Wooten told railroad officials during the internal hearing.
ProPublica learned of other unusual arguments used to blame
workers, and not safety hazards, for their injuries. Machinist Bobby
Moran was wearing his company-issued safety gloves in 2019 when one got
caught in a lathe, snapping bones from his forearm down and severing a
finger; another damaged finger later had to be surgically amputated.
Union Pacific fired him after accusing him of using the equipment in
the Arkansas yard for personal reasons, perhaps to manufacture a
firearm silencer. ``I was fearful,'' Moran said. ``Me and my wife were
thinking, `When is the FBI going to show up?' ''
Moran said he had been creating a piece of equipment that would
improve the functionality of a hydraulic pump he and his fellow
machinists worked with in the repair shop; his legal team showed the
railroad's attorneys the device's schematics and a video of it working
just as he said it would. According to Moran's lawyer, Union Pacific
never provided evidence to support its weapon theory before it settled
the case. Union Pacific did not comment on it.
As for Wooten, BNSF pulled several angles of videos to show how, in
the hours before the accident, he appeared to be favoring his right
wrist by using his left hand. What the company didn't know is that,
according to Wooten, he is ambidextrous, as adept with one hand as with
the other. Two months after his accident, the company fired him,
accusing him of lying about his injury. Then, when Voelker gave
information to Wooten's attorney about the unrepaired loose handle on
the locomotive, he, too, was fired. His dismissal letter cited his
``misconduct and failure to comply with instructions when you disclosed
confidential BNSF business information.''
A jury believed Wooten's story, finding he was wrongfully
terminated in retaliation for his on-the-job injury; he was awarded
$3.1 million. U.S. District Judge Dana L. Christensen denied the
company's appeal, calling BNSF officials' testimony biased, unreliable,
inconsistent and lacking in credibility. ``They latched on to an early
formed presumption that Wooten was being dishonest that jaded their
treatment of Wooten throughout,'' the judge said. The company settled
with Voelker over his wrongful firing claim.
BNSF has lost at least three cases in recent years in which it
tried to allege a worker faked or exaggerated their injuries. In one,
the company fired a worker in 2020 who suffered neck and back injuries
in a crash because a private investigator surveilled him exercising at
the gym--part of a physical therapy and a workout regimen ordered by
his doctor. OSHA described the behavior as a ``knowing and callous''
disregard for his rights and found merit to his argument that he was
retaliated against for getting hurt. The company settled his case in
court in May.
BNSF did not comment on any cases but said it prohibits retaliation
against employees for reporting injuries or safety concerns. ``We take
any alleged violation of those policies very seriously,'' the company
said in a statement.
Former managers interviewed by ProPublica said their companies
foster a culture in which every injury claim is treated with
skepticism. The presumption, one said, is: ``How is the person trying
to [screw] me? How can we prove he's lying?''
ProPublica obtained about 10 hours of recorded railroad manager
phone meetings that give a window into how supervisors discuss injuries
and their efforts to catch employees violating rules. They took place
among Norfolk Southern managers in its Tennessee region between January
and April of 2016 and were led by Division Superintendent Carl Wilson
and Assistant Division Superintendent Shannon Mason. Wilson, whose
LinkedIn page describes him as retired, did not respond to calls, text
messages, social media messages and a letter sent to his home. Mason,
who is still with the company, declined to comment. Norfolk Southern
wouldn't answer ProPublica's questions about the calls, only saying
that they were ``routine and focus on safety.''
While the meetings were indeed largely devoted to business like
company performance, productivity and safety, the tenor changed nearly
every time an injury was brought up, as Wilson and the other
supervisors expressed incredulity that it was legitimate and discussed
ways the injury could be proven to have been the employee's fault.
In one call, they discussed an employee who also owned a motorcycle
repossession business and questioned whether the injury could have
happened there. Wilson told the managers he asked for surveillance of
the engineer. ``Hopefully he messes up,'' Wilson can be heard saying in
the call.
On another call, Wilson described one 67-year-old employee with a
shoulder injury as a ``piece of work'' and insisted he was trying to
get out of a training session. The managers cast doubt on another
employee who said he was attacked by bees: ``If there was anything, it
looked more like a shaving bump.'' Wilson, in another call, lamented
losing the chance to fire an employee before he injured himself by
slipping and hitting his head: ``Quite honestly, he got us before we
could get him.'' And when they brought up a female conductor who felt
her knee pop when she stepped onto a train, the conversation turned to
her weight.
``She's a big gal,'' said Wilson, who also referred to her as
``cheerful.'' ``Her joints, her knees are gonna wear out eventually
sooner than most of us simply because we don't carry the amount of
weight that she carries.'' He joked that if another manager had run her
out of the company earlier, they ``wouldn't have this problem.''
The comments disgusted the worker, Amy Simmons, who called the
discussion ``embarrassing'' and ``unprofessional'' when ProPublica
shared the recording with her. She said that railroaders' knees wear
out because they are asked to walk mile after mile along rocky ballast
and the company has cut staffing to the bone, demanding more and more
from each employee. ``They're wearing us out because they won't give
help,'' she said. ``It's not my weight. If anything, it's the fact that
they overwork us.''
She has since left the industry and said she regretted the amount
of time she wasted and all that she sacrificed trying to be a good
employee. To her, the calls illuminate the way railroad companies truly
see their workers.
``They hire you to fire you,'' she said. ``They don't care.''
Article entitled, ``It Looks Like the Railroad Is Asking for You To Say
Thank You,'' by Jessica Lussenhop and Topher Sanders, ProPublica,
December 19, 2023, Submitted for the Record by Hon. Donald M. Payne,
Jr.
It Looks Like the Railroad Is Asking for You To Say Thank You
by Jessica Lussenhop and Topher Sanders
ProPublica, December 19, 2023, 6 a.m. EST
https://www.propublica.org/article/trains-railroad-kcs-kansas-city-
southern-injuries-lawsuit
After brakeman Chris Cole lost both his legs on the job, railroad
officials removed evidence before state regulators could see
it, omitted key facts in reports and suspended him from a job
he could never return to.
Former brakeman Chris Cole lost both of his legs while working for
Kansas City Southern Railway Company. Credit: Bryan Birks for
ProPublica
Chris Cole lay on his back in the gravel beside the railroad
tracks, staring up at the overcast sky above Godfrey, Illinois. He
could not see below his waist--a co-worker had thrown himself over
Cole's body to spare him the sight, although the man couldn't keep
himself from repeating: ``Oh my god, Chris. Oh my god.'' So, instead of
looking down where his legs and feet should have been, Cole looked up.
What's going to happen to my family? he remembered thinking.
Moments earlier, Cole--a 45-year-old brakeman, engineer and
conductor with over two decades of experience working on the
railroads--had attempted a maneuver he'd done many times: hoisting
himself onto a locomotive as it moved past him. Although dangerous,
Cole's employer, Kansas City Southern Railway Company, did not prohibit
workers from climbing on and off equipment that was moving at a
``walking speed.'' In fact, the company went from banning the practice
in the mid-'90s to steadily increasing the permissible speed at which
workers could attempt to climb onboard, a change other freight
companies would also adopt in keeping with the spirit of a modern
strategy to move cargo as quickly as possible.
As he pulled himself up onto the rolling train, Cole said he felt
something strike his right shoulder--a rectangular metal sign close to
the tracks that read ``DERAIL.'' He lost his balance and slipped
beneath the wheels of a graffiti-covered boxcar. The train crushed and
nearly severed his right foot and his left leg at the knee.
Somehow Cole maintained consciousness, calling his co-workers for
help before undoing his belt to tie a tourniquet around one of his
legs. As the engineer dialed 911, the conductor ran to Cole's side and
used his own belt to tie a second tourniquet around the other leg. A
crew of firefighters arrived within minutes. They loaded him onto a
medical helicopter that airlifted Cole to an emergency room in St.
Louis, just across the nearby Missouri border.
Cole awoke in the middle of the night alone in a hospital room; it
was April 2020, just a month after the surging coronavirus was declared
a pandemic. Neither his wife nor his daughter were allowed to visit,
and so he was alone when a trauma nurse informed him that he lost both
of his legs. Cole, a burly man who once stood 6 feet tall, knew his
railroading career was over, as were his hopes of providing enough so
that his wife--who'd recently been diagnosed with multiple sclerosis--
could stay at home with their 12-year-old daughter.
The next morning, Cole called his manager to tell him that he was
alive. Afterward, the manager wrote an email to other members of the
company summarizing Cole's description of the accident: ``Upon mounting
equipment he stated there was a derail sign that struck him off of the
engine and he fell.''
But within days, according to company and court records, Cole's
managers and higher-ups at the rail company began to shape a new
narrative--one that erased the role of the sign, leaving Cole solely at
fault, entitled to nothing under the railroad industry's version of
workers' compensation for his devastating injuries.
``The culture of management is that we are going to cover ourselves
and cover the railroad and make sure that it doesn't look bad in the
public eye,'' Cole said. ``And if we got to bury one of our employees,
or somebody else, we're going to do that.''
In many ways, the fight centered on the metal derail sign. Within
48 hours of the accident, before state regulators had a chance to
examine it, the sign was gone.
Railroad companies have a long history of hiding injuries, as
ProPublica recently reported. But in some catastrophes like Cole's, in
which the injuries are so grievous they can't be denied, ProPublica
found that companies moved almost immediately to cover up their
culpability.
Some attempts to deny the causes of accidents obscured safety
hazards, such as faulty latches, which could have put more workers at
risk, ProPublica found. Others took actions that made worker injuries
far worse.
In 2014, after two BNSF workers in Minneapolis breathed in a cloud
of highly toxic chemicals that may have vented from passing rail cars,
managers claimed that the men were exposed to a far less dangerous
substance. One of the workers, Scott Kowalewski, suffered severe,
permanent neurological damage. The other later died by suicide, a
tragedy that was impossible to incontrovertibly link to the accident.
When Kowalewski sued, BNSF claimed that he didn't say he was
exposed to the more toxic material until three-and-a-half years after
the incident and maintained throughout the case that his deteriorating
health had nothing to do with the exposure. But a jury sided with
Kowalewski in 2018 and awarded him $15.3 million. And a judge concluded
that the railroad's ``misrepresentation prevented Kowalewski from
receiving appropriate medical treatment that might have remediated his
injury.'' The judge ordered BNSF to pay an additional $5.8 million
penalty for its misconduct, writing that the extent of it was ``vast,
and spans from the outset of its initial sham investigation.''
Cole's case wasn't even the first involving a railroad sign.
Bradley Anderson was riding on the side ladder of a rail car in 2019
when he struck his head on a milepost sign that was too close to the
tracks. He was diagnosed with a traumatic brain injury. Officials from
his company, BNSF, pulled the sign out of the ground before its
position was adequately documented.
This July, the federal judge on Anderson's case excoriated the
company. ``Despite receiving multiple court admonitions for destroying
and concealing evidence, BNSF engaged in the same type of misconduct
here,'' U.S. District Judge Rebecca Goodgame Ebinger wrote in an order,
declaring that the company was responsible for Anderson's injury, and
approved sanctions for the damage caused by the ``bad faith'' removal
of the sign. The case eventually settled.
She also said she was forwarding the case to the Iowa Supreme Court
Attorney Disciplinary Board and the Illinois Attorney Registration and
Disciplinary Commission, ``in the event either body should see fit to
initiate an investigation into an apparent abuse of legal procedure.''
Neither of those bodies would disclose to ProPublica whether they
had received the judge's referral or whether they planned to act on the
information.
In civil litigation, it falls on workers' attorneys to prove
companies tampered with evidence. If a judge agrees, they can sanction
the companies for millions of dollars or, in an extreme case, even
enter a default judgment for the worker. (The judges in Kowalewski's
and Anderson's cases entered such default judgments against BNSF.) But
outside of those repercussions, there is little else in terms of
punishment for companies that repeat the behavior. ``It comes out in an
individual case,'' said Daniel Gourash, editor of the American Bar
Association book ``Spoliation of Evidence.'' ``The sanction that would
be given would not be because of a habitual spoliation activity or
conduct or behavior.''
BNSF did not comment on either case but said in a statement that
``the safety of our employees always has been and always will be a
priority. We believe that's reflected in our safety culture and record
over the last decade, which produced the lowest number of injuries in
our railroad's history.''
In a statement to ProPublica on the Cole case, a Canadian Pacific
Kansas City spokesperson denied that any of its actions were an attempt
to avoid culpability. (This year, Kansas City Southern Railway Company
merged with Canadian Pacific Railway.)
``Through a thorough investigation that lasted several months,
Kansas City Southern sought to determine how the incident occurred so
appropriate action could be taken to prevent such an incident from
happening again,'' the company said.
Within hours of Cole's accident, a bevy of Kansas City Southern
supervisors from across the region converged at the scene. They took
pictures. They stayed until dark fell.
Early the next morning, Cole called two of his managers from his
hospital bed: assistant trainmaster Michael Cline and Chris Knox,
general manager of the KCS North Division. Cline sent two emails to
several managers at the company: ``He stated there was a derail sign
that struck him off of the engine and he fell between the engine and
cars where the incident took place with the dismemberment of his
legs.'' Cline told ProPublica he would check with his employer before
commenting but then did not respond further. Knox didn't respond to
calls or text messages.
A short time later, four inspectors from the Federal Railroad
Administration gathered at the scene along with KCS managers. An FRA
operating practices inspector named Larry Piper wrote up his initial
findings about what happened to Cole.
``His body struck a derail sign on a metal post adjacent to the
pass track, knocking him off the locomotive and to the ground,'' the
report stated, adding that railroad and FRA officials watched video
footage captured on a nearby security camera. ``Even though the quality
was not perfect, it did substantiate what the employee was saying,''
the report said.
Piper communicated those findings to a member of the Illinois
Commerce Commission, the agency that performs inspections and enforces
state regulations on the railroad, including sign placement.
``It appeared to him that the derail post sign was too close to the
rail,'' recalled Dennis Mogan, the ICC railroad safety specialist, in a
deposition. ``The FRA didn't have any regulations on that, and he
thought that the state did and that we should take a look.''
But before that could happen, KCS roadmaster Jeffrey Brickey
removed the sign and pulled its pole from the ground entirely. He also
covered the hole left behind.
``We're not supposed to leave any divots or anything like that for
trainmen to walk on, so yeah, I cleaned it up,'' he testified. Brickey
did not respond to ProPublica's requests for comment.
By the time a railroad safety specialist from the ICC named Troy
Fredericks arrived about a week later, the sign was long gone. When
Fredericks asked Brickey about it, he said Brickey ``couldn't discuss''
the sign and ``would not talk about'' the injury incident. The company
did not comment on whether it had been forthright with Illinois
regulators; the ICC told ProPublica that Brickey was ``responsive to
ICC Staff's concern in the days after the incident.'' Before Fredericks
left the accident scene, he made note of a completely different sign
not far away that he said was positioned too close to the railroad
tracks and then left.
Around the same time that the sign disappeared from the site, it
also began to fade from the railroad company's narrative of the
incident, despite the existence of the FRA's initial report confirming
Cole's account. Wendell Campbell, an assistant division superintendent
who was one of the first to arrive in Godfrey after the accident, wrote
on an employee injury form that the sign struck Cole. But in subsequent
paperwork, Campbell omitted any mention of the sign: ``Employee was
trying to board moving equipment.'' Campbell declined to comment when
reached by ProPublica.
In a deposition, Mary Lyn Villanueva, the KCS employee in charge of
submitting information to the FRA, said that before she filed her
report, she had several conversations with the company's claim agents,
who investigate accidents and injuries on behalf of the railroad.
Villanueva, who had access to both versions of the story Campbell
submitted, also omitted any mention of the sign. Through a company
spokesperson, she declined to comment to ProPublica.
In its statement, Canadian Pacific Kansas City said it ``filled out
the FRA-required forms properly, noting the cause of the incident was
still under investigation at the time.'' The company denied that it
misled the FRA, saying the sign was measured and photographed in the
presence of agency officials and then removed.
But according to Nelson Wolff, Cole's attorney, leaving the sign
out of subsequent paperwork was not a harmless omission. ``It was part
of an obvious attempt to change the narrative and to conceal evidence
that the sign was the actual cause,'' he said.
Less than a week after the accident, managers made another
decision: They wanted Cole, who in his 11-year career with the company
had never been injured, investigated for rule violations. The company
issued him a notice, which Cole initially did not receive--he was still
in the hospital, going in and out of surgeries to save what remained of
his legs.
Six weeks after the incident, the hospital finally cleared Cole to
go home. But there was no home to go to.
The Coles' previous apartment was on the second floor of a building
with no elevator and no way to navigate it in a wheelchair. Instead,
Cole checked into an Extended Stay America hotel, where he was finally
reunited with his wife, Iris, and his daughter, Lily.
Although grateful to see him in person for the first time in over a
month, the meeting was a shock for Iris and Lily--it was the first time
they'd seen him without his legs, and his wounds were still fresh. ``I
gave him the biggest hug, but I looked down at his legs,'' recalled
Iris, who confessed in court to being squeamish around blood. ``He had
a wound vac on the right leg, and how I did not pass out, I don't
know.''
The meeting was emotional but brief. Cole's wife and daughter left
to finish putting their belongings into storage. The family continued
living separately for months before finding a wheelchair-accessible
apartment. In the process, the Coles racked up over $10,000 in hotel
room costs.
A little over a week after Cole got out of the hospital, his union
representative wheeled him into a small hotel conference room in East
St. Louis, Illinois, to hear the railroad's case against him. They were
joined by Brandi Foulk, the engineer, and Brian Loy, the conductor; it
was the first time all three had seen one another since Cole was
airlifted away.
In front of a presiding officer from Kansas City Southern, Cole's
manager Campbell made the argument: He said Cole attempted to mount a
locomotive going faster than 4 miles per hour, or walking speed,
without first notifying Foulk by radio, a violation of a KCS rule. A
second KCS manager presented data from the train's black box recorder,
which he said showed that the locomotive reached 8 miles per hour at
some point before it stopped, though he acknowledged it was possible
Cole tried to board at 4 miles per hour.
Though Campbell knew Cole reported being struck by the sign, he
made no mention of it. Both Foulk and Loy tried to speak up for Cole,
saying they believed it was possible the train was going closer to 4
miles per hour when he made the attempted boarding.
``Chris is one of the safest people I've ever worked with,'' Foulk
said. ``Him not saying something to me on the radio just let me know
that he felt safe enough to get on equipment going the speed that it
was going.''
The hearing took less than an hour and a half. A week later, the
railroad determined Cole broke the rule and gave him a 30-day
suspension, despite the obvious fact that he would never be able to
return to work on the railroad again. Cole, who was still in acute pain
at the time of the investigation, did not raise the issue of the sign
at the hearing, which he later regretted. At the same time, he said he
knew he'd be found at fault regardless. The company did not respond to
ProPublica's questions about the disciplinary proceedings against Cole.
It is a common refrain among rail workers that the companies'
internal investigative hearing process is a ``kangaroo court.''
Hearings typically run like this: They are presided over by railroad
managers, workers are not allowed to have their lawyer represent them
and they cannot force the railroad to turn over evidence for their
defense. In a case against Norfolk Southern, a railroad manager who
served as the presiding officer in about 50 investigative hearings
estimated that she found in favor of the employee only once. The
hearings are often a precursor to firings, and when Occupational Safety
and Health Administration officials have weighed in on subsequent
wrongful termination claims, they wrote that hearings were ``at best
perfunctory'' and not ``fair and impartial,'' and ``showed bias.''
After employees sue, the rail companies frequently settle with workers
they claim to have proven were fully at fault. In other cases, the
workers have gone on to huge jury verdict wins.
``If you go to an investigation, you have already been found
guilty,'' Cole told ProPublica. ``My ends were hurting, and I just
wanted to get out of there and get it over with.''
Still, he admitted he was surprised that the company was in such a
hurry to discipline him.
``That's when I kind of lost all faith in them,'' he said.
In the fall of 2022, when Cole's civil trial against Kansas City
Southern Railway Company began in St. Louis County Circuit Court, a
central figure in the case reemerged: the derail sign. Almost as
mysteriously as it had disappeared, the sign was back.
According to the lawyers for the railroad, there was a third
version of events: They now admitted the sign was placed too close to
the tracks on the day of the accident, by about 1 1/2 to 2 feet, in
violation of Illinois law. But Cole, they argued, never hit the sign.
Therefore, the sign and who had placed it too close to the tracks and
where it went after the roadmaster removed it and why it went was all
moot. They even used the sign to demonstrate to the jury that it was
too ``flimsy'' to knock a 245-pound man off balance. (Although fighting
nerves, Cole was amused at one point when one of the lawyers banged
loudly into it. Doesn't sound flimsy to me, he thought.)
Throughout the two-week trial, the railroad's legal team presented
a more robust version of the same case it had made in Cole's internal
hearing in June 2020: that he boarded a moving train when it was going
too fast, in violation of company rules and general safety best
practices. They added a roster of three expert witnesses who
reconstructed the scene using imperfect videos--one from locomotive
cameras that missed the fall and one from a nearby warehouse that was
grainy and far away; the company's experts enhanced them with 3D
computer modeling to show Cole slipped on his own. The true culprit,
they argued, was rule violations. ``If you follow the rules, you don't
get hurt,'' the lawyer told the jury.
Cole's attorney, Wolff, countered with his own expert, who argued
the same videos plausibly showed Cole hitting something before falling.
Wolff also argued that there was no safe speed for getting onto and off
of moving trains and that companies like KCS that had once prohibited
the activity were now walking the policies back to keep freight moving
faster. Brandon Ogden, an expert witness and former BNSF manager,
blamed this on the industry's increasing reliance on precision
scheduled railroading, a business philosophy that prioritizes maximum
efficiency. ``It's all about moving faster, increasing production and
boosting profits,'' Ogden testified. ``It negatively affects safety of
railroad employees.''
Cole's daughter, Lily, and wife, Iris, testified about the
difference the accident made in their lives. His daughter, by then 15,
called her dad a ``knight in shining armor'' who could no longer go
swimming or ice skating with her. His wife described how the family was
adapting to Cole's new physical limitations in some ways, while others
remained a struggle. ``He is quick to get upset over things. I mean,
really, really quick,'' she said. ``We have to tell Chris, don't do
that. Please don't do that.''
When Cole was called to the stand, he told the jury the story: how
he'd felt the sign strike his shoulder before his fall, about his long,
ongoing recovery, sometimes feeling ``worthless'' now that he could not
take care of his family. At one point, he removed his prosthetics for
the jury, demonstrating the system of liners, pushpins, buckles and
Velcro straps.
On cross-examination, the railroad's lawyer grilled Cole on his
understanding of the safety rules about boarding moving trains. He
played the videos of the incident again, urging Cole to admit that his
memory of hitting the sign was faulty or that his own poor decisions
caused the fall. Cole stuck to his version of events.
``While we all do recognize you have suffered a very, very
significant injury, you would agree with me that it has allowed you to
develop stronger relationships with your wife and daughter?'' the
lawyer asked Cole at one point. ``While you loved your job at the
railroad, that took you away from your family, yes?''
On redirect, Wolff turned the line of questioning around.
``It looks like the railroad is asking for you to say thank you,''
he said to Cole. ``Would you rather be out there working on the
railroad, providing for your family like you had been doing for decades
. . . being able to walk on your own two feet?''
``That is correct,'' Cole responded. ``Yes.''
Wolff left the jury with a succinct explanation for the sign's
appearance, disappearance and reappearance in the railroad company's
narrative: ``cover-up.'' The railroad vehemently denied it.
After the long, contentious trial, and just under five hours of
deliberation, the jury returned with its verdict, agreeing that Kansas
City Southern had violated Illinois sign clearance law. It determined
that Cole was 21% at fault for his accident, while the railroad company
was responsible for 79%. The jury awarded Cole $12 million.
``A big weight lifted off my shoulders,'' Cole said of the moment
he heard the verdict. ``Someday, we're going to be fine.''
After the verdict, Kansas City Railway filed an appeal, which is
ongoing. Company officials reiterated to ProPublica that they still do
not believe Cole hit the sign before he fell. Read the full Canadian
Pacific Kansas City statement here. [https://www.documentcloud.org/
documents/24229139-cpkc-propublica-statement]
While he awaits the outcome, Cole works part-time during baseball
season with Iris, greeting customers at the St. Louis Cardinals team
store near the downtown stadium. Cole enjoys it, so long as he can
steer clear of the rowdy baseball crowds that jostle his wheelchair. He
cringes when fans thank him for his service, replying simply that he
got hurt at work.
In the short term, he focuses on becoming more mobile on his
prosthetics. Lily is 16 years old now, and Cole figures he still has
time to learn to walk before he escorts her down the aisle at her
wedding.
Though he said he doesn't dwell much on the former railroad
colleagues who tried to discredit him, he wonders why regulatory
agencies don't do more to discipline managers and companies.
``Instead of maybe a fine, why don't you put somebody in jail?'' he
asked. ``Maybe they'll learn better that way and stuff will stop
happening like this.''
Both the ICC and the FRA decided Cole's accident warranted no
further investigation. Neither agency issued any kind of penalty or
fine.
A spokesperson for the ICC said it has authority to issue fines
only after putting the railroad on notice of a violation and then
holding a hearing, and that because the company ``corrected the
violation''--by removing the sign--the commission did not pursue the
matter.
Following its practice at the time, the FRA never finalized its
initial report concluding that Cole hit the sign and didn't share it
with anyone until ProPublica asked questions about the accident this
month. It's unclear how the report would have changed any element of
the legal fight, but Cole finds it disappointing that the regulator
didn't take a more aggressive role in holding the railroad accountable.
``That is what the FRA is supposed to do, it is supposed to monitor
and to sanction railroads when they do wrong,'' he said. ``You go out
and you say, `Hey, you know, this sign was definitely way too close to
the track and you had an employee got hurt, but we're just going to
tuck it in a drawer somewhere, we're just going to forget about it.' .
. . That's what's disappointing.''
The regulators, he went on, had nothing to lose, while Cole, in his
words, ``lost everything, pretty much.''
Dan Schwartz contributed reporting. Gabriel Sandoval contributed
research.
Mr. Nehls. Thank you, sir. I now recognize the ranking
member of the full committee, Mr. Larsen, for 5 minutes for an
opening statement.
OPENING STATEMENT OF HON. RICK LARSEN OF WASHINGTON, RANKING
MEMBER, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
Mr. Larsen of Washington. Thank you, Chair Nehls and
Ranking Member Payne, for holding today's hearing on rail
safety, and safety in every mode of transportation should
always be this committee's top priority.
Since the Norfolk Southern derailment in East Palestine,
Ohio, committee Democrats have been calling for a rail safety
hearing and rail safety legislation. In fact, in May of 2023,
every T&I Democrat signed a letter asking for a rail safety
hearing highlighting the dozens of outstanding rail safety
recommendations from the National Transportation Safety Board.
Today's hearing is an opportunity to learn about those
recommendations and what Congress can do.
Nearly 1 year ago, we all watched as a giant plume of toxic
fumes was released into the sky after the train derailment in
East Palestine. Fortunately, no one died in that derailment,
but it remains a stark reminder of why we need to be vigilant
about rail safety. The NTSB held a field hearing in East
Palestine and took the unusual step of initiating its own
investigation into the safety culture of Norfolk Southern.
This incident was by no means the only rail accident that
occurred last year; there have been more than 1,500 train
accidents since the one in East Palestine. Among those: a
middle-of-the-night evacuation was required in Raymond,
Minnesota, where a BNSF train derailed; a CSX derailment that
required an evacuation of Livingston, Kentucky, just before
Thanksgiving; CSX had three employee fatalities last year, two
of whom were conductor trainees in Maryland; and in Skagit
County, Washington, in my district, BNSF had locomotives derail
along Padilla Bay, spilling thousands of gallons of fuel. In
Washington State alone, over the last 5 years, there were 193
train accidents, 71 grade crossing incidents, and 167 railroad
right-of-way trespasser fatalities.
Communities around the country are looking to Congress to
act. Over 400 local officials sent a letter last March asking
us to address rail safety, including Mayor Geoffrey Thomas of
Monroe, Washington, and then-Mayor Jill Boudreau of Mount
Vernon, Washington.
There is promising news. Over the last 40 years, railroads
have seen a decline in the number of accidents or incidents. In
1983, the U.S. had approximately 20,000 rail accidents and
incidents a year; today, we are down to around 4,400. That is a
significant improvement, but there is still an upward trend
over the last decade in accidents and incidents per million
train-miles.
And communities across the country face challenges with
railroads blocking crossings. At least 37 States, including
Indiana, Ohio, Louisiana, and South Dakota, have passed laws
prohibiting stopped trains from blocking crossings, but
railroads have fought State efforts in court. The problem is,
including for communities in my district, there are no Federal
requirements.
Blocked crossings pose safety risks. Frustrated drivers may
attempt to clear the crossing before a train arrives, or
pedestrians, including children on their way to school, as the
ranking member has pointed out, may crawl between stopped
railcars. There were more than 22,000 reports of blocked
crossings last year, most due to a parked train. First
responders have been unable to cross tracks, and nearly one-
quarter of the time, pedestrians were observed on, over, or
through the train cars.
So, while the Bipartisan Infrastructure Law funding will
help address these problems, public funding cannot be the only
response to this issue. The BIL was a monumental achievement
that supercharged investment in rail with $102 billion in
planned funding. Many of these investments will improve safety,
along with making service improvements. And to date, the FRA
has announced about $26.7 billion in BIL funding for 238 rail
projects nationwide.
Among the recipients was the city of Burlington,
Washington, in my district, which received a planning grant to
identify which 1 of its 16 at-grade crossings is most suitable
for a grade separation, and I am pleased the city is able to
move forward now with this project, thanks to BIL funding.
I expect great results for communities from these grants
and additional rail funding to come because there is more to
do. I look forward to this committee passing legislation to
address rail safety concerns. This hearing and future
discussions with communities who have rail service, the people
who are impacted by derailments, and the employees who operate
the railroads will inform the development of legislative
solutions.
With that, I want to thank the witnesses for being here
today.
[Mr. Larsen of Washington's prepared statement follows:]
Prepared Statement of Hon. Rick Larsen, a Representative in Congress
from the State of Washington, and Ranking Member, Committee on
Transportation and Infrastructure
Thank you, Chairman Nehls and Ranking Member Payne, for holding
today's hearing on rail safety.
Safety in every mode of transportation should always be this
Committee's top priority.
Since the Norfolk Southern derailment in East Palestine, Ohio,
Committee Democrats have been calling for a rail safety hearing and
rail safety legislation.
In May 2023, every T&I Democrat signed a letter asking for a rail
safety hearing highlighting the dozens of outstanding rail safety
recommendations from the National Transportation Safety Board (NTSB).
Today's hearing is an opportunity to learn about those
recommendations, and what Congress can do.
Nearly one year ago, we all watched as a giant plume of toxic fumes
was released into the sky after the train derailment in East Palestine.
Fortunately, no one died in that derailment, but it remains a stark
reminder why we need to be vigilant about rail safety.
The NTSB held a field hearing in East Palestine and took the
unusual step of initiating its own investigation into the safety
culture of Norfolk Southern.
The East Palestine incident was by no means the only rail accident
that occurred last year.
There have been more than 1,500 train accidents since the one in
East Palestine. Among these:
A middle of the night evacuation was required in Raymond,
Minnesota, when a BNSF train derailed.
A CSX derailment that required an evacuation of
Livingston, Kentucky, just before Thanksgiving.
CSX had three employee fatalities last year, two of whom
were conductor trainees in Maryland.
In Skagit County, Washington, in my district, BNSF had
locomotives derail along Padilla Bay, spilling thousands of gallons of
fuel.
In Washington state alone, over the last five years there were 193
train accidents, 71 grade crossing incidents, and 167 railroad right-
of-way trespasser fatalities.
Communities around the country are looking to Congress to act. Over
400 local officials sent a letter last March asking us to address rail
safety--including Mayor Geoffrey Thomas of Monroe, Washington, and
then-Mayor Jill Boudreau of Mount Vernon, Washington.
There is promising news. Over the last 40 years, railroads have
seen a decline in the number of accidents or incidents.
In 1983, the United States had approximately 20,000 rail accidents
and incidents a year. Today, we are down to around 4,400.
That is a significant improvement--but there is still an upward
trend over the last decade in the accidents and incidents per million
train miles.
Communities across the country face challenges with railroads
blocking crossings.
At least 37 states including Indiana, Ohio, Louisiana and South
Dakota have passed laws prohibiting stopped trains from blocking
crossings but railroads have fought state efforts in court.
The problem is, including for communities in my district, there are
no federal requirements.
Blocked crossings pose safety risks--frustrated drivers may attempt
to clear the crossing before a train arrives or pedestrians, including
children on their way to school, may crawl between stopped railcars.
There were more than 22,000 reports of blocked crossings last
year--most due to a parked train. First responders have been unable to
cross tracks. And nearly a quarter of the time pedestrians were
observed on, over, or through the train cars.
While Bipartisan Infrastructure Law (BIL) funding will help address
these problems, public funding cannot be the only response to this
issue.
The BIL was a monumental achievement that supercharged investment
in rail with $102 billion in planned funding.
Many of these investments will improve safety, along with making
service improvements.
To date, FRA has announced $26.7 billion in BIL funding for 238
rail projects nationwide.
Among the recipients was the City of Burlington, in my district,
which received a planning grant to identify which one of its 16 at-
grade crossings is most suitable for grade separation. I am pleased the
city is able to move forward with this project, thanks to BIL funding.
I expect great results for communities from these grants and
additional rail funding to come because there is more to do.
I look forward to this Committee passing legislation to address
rail safety concerns.
This hearing and future discussions with communities who have rail
service, the people who are impacted by derailments, and the employees
who operate the railroads will inform the development of legislative
solutions.
I thank the witnesses for being here today.
Mr. Larsen of Washington. And I yield back.
Mr. Nehls. The gentleman yields, thank you. I would like to
now welcome our witnesses and thank them all for being here
today.
Thank you so very much.
I would like to take a moment to explain our lighting
system to our witnesses.
There are three lights in front of you. Green means go,
yellow means you are running out of time, and red means
conclude your remarks.
I ask unanimous consent that the witnesses' full statements
be included in the record.
Without objection, so ordered.
I also 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.
Without objection, so ordered.
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.
As your written testimony has been made part of the record,
the subcommittee asks that you limit your remarks to 5 minutes,
please.
With that, first, we have FRA Administrator Bose.
We appreciate you being here. Thank you so much, and you
are recognized for 5 minutes for your testimony.
TESTIMONY OF HON. AMIT BOSE, ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION; HON. JENNIFER L. HOMENDY, CHAIR, NATIONAL
TRANSPORTATION SAFETY BOARD; IAN JEFFERIES, PRESIDENT AND CHIEF
EXECUTIVE OFFICER, ASSOCIATION OF AMERICAN RAILROADS; AND HON.
MICHAEL J. SMITH, COMMISSIONER, INDIANA DEPARTMENT OF
TRANSPORTATION
TESTIMONY OF HON. AMIT BOSE, ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION
Mr. Bose. Chairman Nehls, Ranking Member Larsen, Ranking
Member Payne, and members of the subcommittee, thank you for
the opportunity to testify this morning. It is an honor to
return to this subcommittee and testify before you today about
highway-rail grade crossings.
I want to thank the FRA staff who prepared me for this
hearing in a short span of time.
The Federal Railroad Administration accomplishes its core
safety mission through the work of our safety professionals,
partnerships with stakeholders, and investments in projects.
Congress demonstrated its commitment to grade crossing safety
and bolstered our Nation's rail network when it passed the
Bipartisan Infrastructure Law 2 years ago.
As a part of its historic investments in our rail network,
BIL created the Railroad Crossing Elimination Grant Program to
enhance community safety and improve the mobility of people and
goods by implementing grade separations or closures, and
funding safety improvements at existing crossings. In June
2023, FRA announced our first railroad crossing elimination
selections, awarding more than $570 million for 63 projects in
32 States that impacted over 400 at-grade crossings. This
funding answers a real need. In 2022, there were more than
2,200 rail-highway grade crossing collisions in the United
States. FRA's public complaint portal received reports
identifying more than 22,000 blocked highway-rail grade
crossing events.
In addition to funding new projects, FRA is using its
authorities to improve grade crossing safety in local
communities. Over 2 years, FRA has increased our grade crossing
and trespasser outreach division staff and nearly doubled our
grade crossing inspectors. This staff spent weeks engaging in
communities such as Birmingham, Alabama; Hammond, Indiana; and
Houston, Texas, to address persistent blocked crossings.
Earlier this week, they led a multimodal grade crossing
symposium.
FRA is also leveraging technology to improve grade crossing
safety. For instance, FRA staff, who spent weeks in Houston,
used the railroad's Positive Train Control data to verify
locations and durations of blocked crossings reported to FRA's
public portal. FRA's office of research, development, and
innovation developed the Rail Crossing Violation Warning
System, which communicates the status of grade crossing systems
to equipped approaching vehicles. And I believe that companies
operating navigational applications could potentially enhance
driver awareness of grade crossings, alert drivers to rail
bridge clearances, and more.
More broadly, FRA continues to use every resource we have
to advance rail safety across the country. In June 2022, FRA
finalized a rulemaking requiring railroads to develop fatigue
risk management programs. As required by the new rule and the
2008 congressional mandate, FRA expects railroads to
meaningfully consult with their employees when identifying and
mitigating fatigue risks. We issued guidance to assist with
that.
FRA has completed or has underway additional rulemakings to
respond to congressional mandates on emergency escape breathing
apparatus, signal and dispatcher employee certification, and
locomotive recording devices.
FRA also completed several safety mandates from the
Bipartisan Infrastructure Law, including a report on blocked
crossings and establishing a standardized process for including
stakeholders such as labor organizations in accident
investigations.
We also issued a proposed rule establishing minimum crew
size.
In 2023, FRA has issued seven safety advisories and seven
safety bulletins to nimbly address emergent safety issues. The
past few years have been an extraordinary time for rail:
responding to the COVID pandemic, working to address supply
chain issues, completing labor-management contract
negotiations, responding to the Norfolk Southern East
Palestine, Ohio, tragedy, and implementing the Bipartisan
Infrastructure Law. FRA will continue doing our part.
There are opportunities for railroads and Congress to do
more to ensure rail safety, and we look forward to working with
you all and enhancing the Secretary's safety push.
I appreciate the opportunity to testify before you.
[Mr. Bose's prepared statement follows:]
Prepared Statement of Hon. Amit Bose, Administrator, Federal Railroad
Administration
Chairman Graves, Ranking Member Larsen, Chairman Nehls, Ranking
Member Payne, and members of the subcommittee--thank you for the
opportunity to testify today and for your support for improving safety
at highway-rail grade crossings.
Safety is core to the mission of the Federal Railroad
Administration (FRA). We accomplish that mission with the work of our
safety professionals, partnerships with stakeholders, and investments
in projects.
Safety professionals cover every discipline of railroad operations
and represent a majority of FRA's workforce. For example, across the
United States, FRA grade crossing safety inspectors inspect grade
crossings; perform critical outreach work to educate the public; and
work with railroads, state departments of transportation, and
communities to ensure compliance with FRA safety regulations. As part
of its commitment to safety, FRA has nearly doubled its Grade Crossing
and Trespasser Outreach Division to 48 staff in the past two years.
FRA partners with railroads, States, and local government to
promote grade crossing safety. That work is data driven. For example,
when communities in Birmingham, AL; Hammond, IN; and Houston, TX
reported high numbers of blocked crossings to FRA's Public Blocked
Crossing Incident Reporter, FRA engaged with those cities to show that
a combination of technology, changes to railroad operations, and public
outreach to pedestrians and drivers can reduce the impacts of blocked
crossings. FRA ensures that railroads comply with safety regulations,
enforce their own operating rules, and take seriously their
responsibility to local communities. In addition, FRA partners with the
Federal Highway Administration (FHWA), Federal Transit Administration
(FTA), Federal Motor Carrier Safety Administration (FMCSA), National
Highway Traffic Safety Administration (NHTSA), and others to ensure the
safety of people and goods at our Nation's highway-rail grade
crossings.
The Bipartisan Infrastructure Law (BIL) presents an historic
opportunity for the Biden-Harris Administration to invest in rail
safety and mobility projects to better the lives of Americans who live
near or travel along America's rail lines. Congress demonstrated its
commitment to grade crossing safety and bolstering our nation's rail
network when it passed the BIL, creating several new rail investment
programs and reauthorizing others. In particular, the Railroad Crossing
Elimination (RCE) Grant Program provides funding to enhance the health
and safety of communities, eliminate highway-rail and pathway-rail
grade crossings that are frequently blocked by trains, reduce the
impacts that freight movement and railroad operations may have on
communities, and improve the mobility of people and goods.
Additionally, highway-rail crossing improvement projects are eligible
for funding under the Consolidated Rail Infrastructure and Safety
Improvements (CRISI) Grant Program.
This funding answers a real need. In 2022, there were more than
2,200 highway-rail crossing collisions in the United States. FRA
received 30,749 blocked crossing reports submitted to FRA's public
complaint portal identifying 22,473 blocked highway-rail grade crossing
events. In 2022, the top 5 states by number of blocked crossing reports
submitted were in order: Texas with 6,508 (21%), Ohio 3,575 (12%);
Illinois 2,952 (10%); Indiana 2,533 (8%); and Tennessee 1,483 (5%).
Unsurprisingly, the BIL rail programs to date have received
widespread demand. For example, FRA released the first RCE Notice of
Funding Opportunity (NOFO) in June 2022, and it was oversubscribed more
than 4 to 1, with 153 eligible applications submitted from 41 States,
requesting more than $2.3 billion in funds. FRA has invested in
regionally focused outreach teams to provide grant-related technical
assistance to potential applicants to help meet this demand efficiently
when we make available future BIL funds provided under Advance
Appropriations and funded under the annual authorization amounts.
In June 2023, FRA announced the first selections under the RCE
Grant Program with 63 projects in 32 States receiving more than $570
million. These awards address more than 400 at-grade crossings
nationwide, improve safety, eliminate grade crossings through grade
separations and closures, improve existing at-grade crossings, and
enhance mobility of people and goods, benefiting railroads and
communities.
For example, FRA awarded the West Belt Improvement Project in the
City of Houston. Houston's East End is one of many communities across
the country that FRA has worked closely with to address grade crossing
safety. I personally visited Houston in August 2022 to launch a focused
grade crossing inspection and returned six months later to share the
outcomes. FRA, Union Pacific Railroad, BNSF Railway, and the City of
Houston partnered to identify crossings, for which the railroads issued
strict orders to avoid blocking, resulting in nearly a 40% reduction in
reports of blocked crossings in Houston. In June 2023, I announced the
award of an RCE grant to the City of Houston to construct four
underpasses and close four at-grade crossings to eliminate seven
existing at-grade crossings.
Other cities are pursuing comprehensive grade crossing safety
efforts. The Chicago Region Environmental and Transportation Efficiency
(CREATE) program serves as an example of a public-private partnership
in Chicago; it includes 25 new roadway overpasses or underpasses and
six new rail overpasses or underpasses. Additionally, FRA and the U.S.
Department of Transportation have awarded nearly $45 million in Florida
to Brightline Trains, LLC; Florida Department of Transportation;
Broward MPO; and cities along the route for projects specifically
related to trespassers and grade crossing safety.
The dedicated funding of the RCE Grant Program and the other
programs under the BIL is one of many ways President Biden's Investing
in America agenda will make a difference in people's daily lives by
improving safety and convenience and creating good-paying jobs to
rebuild our Nation's infrastructure.
Thank you again for having me here today and for your continued
support. I look forward to answering your questions.
Mr. Nehls. Thank you, Administrator Bose. Now I would like
to recognize National Transportation Safety Board Chair, Ms.
Homendy.
Thank you for being here, and you are recognized for 5
minutes.
TESTIMONY OF HON. JENNIFER L. HOMENDY, CHAIR, NATIONAL
TRANSPORTATION SAFETY BOARD
Ms. Homendy. Good morning, and thank you for the
opportunity to be here today.
I want to start by thanking each of you for your continued
work to improve safety at grade crossings, including the
creation of FRA's Railroad Crossing Elimination Grant Program
in the Bipartisan Infrastructure Law.
Outstanding work is also happening at the State and local
level. Thanks to the efforts of Administrator Bose; then-Acting
FHWA Administrator Pollack; Governor Mike Parson; Missouri DOT
Director Patrick McKenna; the people of Mendon, Missouri; and
the critical efforts of Chairman Sam Graves, the State of
Missouri acted quickly and decisively after Amtrak's Southwest
Chief collided with a dump truck in 2022, claiming 4 lives and
injuring 146 others. Their work to improve the State's 47
passive grade crossings, supported by a $50 million investment,
far exceeded our expectations. And as a result, we didn't issue
any recommendations in the final investigative report.
Also, as we discuss safety today, we need to keep in mind:
Rail transportation is not only cleaner and more fuel efficient
than transportation on our roadways, it is also far, far safer.
That's true whether we are talking about transporting
passengers or freight. We'd save so many lives if we could get
people out of cars and onto trains and public transit.
The fact is, the U.S. is facing a public health crisis on
our roads. More than 40,000 people are killed every single year
in preventable crashes, and millions more are injured. Grade
crossings are among the deadliest spaces on our rail system
because that is where our rails meet our roads. In fact, the
rate of grade crossing collisions has increased by 34 percent
over the past decade. Today, I'd like to highlight three areas
where we see significant room for improvement: grade crossing
design, technology, and rail worker safety.
First, design. The safest grade crossing is no grade
crossing. In a perfect world, our rail system would be
completely separated from our roads. That means building
overpasses and underpasses. But grade separation isn't always
an option, which is why we have recommended converting passive
grade crossings to active ones, increasing and improving
signage, and ensuring proper road design so vehicles don't
bottom out and become stuck on the tracks.
The second area is technology. If you have ever used Waze,
you will notice it alerts drivers when they are approaching a
grade crossing. That vital improvement is a result of a 2016
NTSB recommendation. We have called on other companies to do
the same. Unfortunately, some of them, including Google, Apple,
and Microsoft, have yet to implement our recommendations.
For decades, we have also called on DOT to develop and to
test in-vehicle safety technology, like V2X, to warn drivers of
trains at grade crossings. We're still waiting.
We also strongly support other lifesaving technologies like
Positive Train Control. Current law requires the railroads to
use PTC in established work zones to ensure worker safety. But
under FRA regulations, they can circumvent that law by using
train approach warning. That is when a lookout or watchman is
assigned to protect workers who are maintaining the track. When
they spot a train coming, sometimes at 110 miles per hour in
one of our investigations, they are supposed to tell workers to
move to a safe location. We have conducted numerous, numerous
investigations where workers have died in extremely hazardous
conditions as a result of train approach warning.
In 2021, I wrote a letter to DOT and FRA, imploring them to
take action. Nothing has been done. I would like to include
that letter in the hearing record, Mr. Chairman.
Mr. Nehls. Without objection.
[The letter is included after Ms. Homendy's prepared
statement.]
Ms. Homendy. Thank you.
The NTSB has also called on FRA and the railroads to end
the practice of allowing workers to ride on a railcar through a
grade crossing. To be safe, workers must get off the train
before it goes into the crossing. Unfortunately, we have also
seen little action on these recommendations.
The NTSB has over 190 rail safety recommendations that are
currently open. We have 318 more recommendations that have been
closed with no or unacceptable action. These recommendations,
if acted on today, will save lives. There is no reason, none,
to wait.
Thank you so much.
[Ms. Homendy's prepared statement follows:]
Prepared Statement of Hon. Jennifer L. Homendy, Chair, National
Transportation Safety Board
Good morning, Chairman Nehls, Ranking Member Payne, and members of
the subcommittee. Thank you for inviting the National Transportation
Safety Board (NTSB) to testify before you today regarding railroad
grade crossing elimination and safety. 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--railroad, transit, highway, marine,
pipeline, and commercial space. We determine the probable causes of the
accidents and events we investigate and issue safety recommendations
aimed at preventing future occurrences. In addition, we conduct
transportation safety research studies and offer information and other
assistance to family members and survivors for each accident or event
we investigate. We also serve as the appellate authority for
enforcement actions involving aviation and mariner certificates issued
by the Federal Aviation Administration (FAA) and the US Coast Guard,
and we 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 investigations and
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 injuries and save
lives.
In my testimony today, I want to detail just a few of the NTSB's
grade crossing investigations, outline the broader lessons we have
learned from those investigations, and reiterate how critical it is for
our federal, state, industry, and labor partners to heed those lessons
learned and take action to help avoid future tragedies.
I am personally familiar with the aftermath of a grade crossing
collision and the lifelong grief that surviving family members and
friends must endure. My father's cousin, Darcy, was killed at a passive
grade crossing near Havelock, North Carolina, many years ago.
With that said, I believe it is important, as we have this
discussion today, that we keep in mind that rail passenger and freight
transportation in the United States is far safer, more fuel efficient,
and produces lower emissions than road transportation. I would never
want to see that traffic shift away from railways to roadways. It is
the opposite we should all strive for: shifting passenger and freight
transportation from our deadly roadways to far safer modes of
transportation, like rail.
The United States confronts an ongoing public health crisis on our
roadways in every corner of this country, losing over 40,000 lives
annually in crashes on our roadways.\1\ Grade crossings are among the
deadliest spaces in our rail system, in part, because they are where
our rail and highway systems meet. Better separating these systems
would save thousands of lives and incur many other benefits.
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\1\ US Department of Transportation, National Highway Traffic
Safety Administration. Traffic Safety Facts: Early Estimate of Motor
Vehicle Traffic Fatalities for the First Half (January-June) of 2023.
Washington, DC: NHTSA, 2023. https://crashstats.nhtsa.dot.gov/Api/
Public/ViewPublication/813514
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However, we must also be clear that the only acceptable number of
fatalities on our rail system is zero, and although rail transportation
is comparatively safe in contrast to highway transportation, we must
still work to ensure that no lives are needlessly lost to preventable
collisions.
Since 1967, the NTSB has been at the forefront of railroad safety.
We have a long record of highlighting numerous safety issues on our
railways and have particularly strong concerns about rail worker
safety, train approach warnings, positive train control, and railroad
company safety cultures, in addition to the grade-crossing concerns
that we are here to discuss today.
In total, the NTSB currently has over 190 open rail safety
recommendations.\2\ These include 5 recommendations to the US
Department of Transportation (DOT), 90 recommendations to the Federal
Railroad Administration (FRA), and 12 recommendations to the Pipeline
and Hazardous Materials Safety Administration (PHMSA). There are also
over 115 recommendations to the FRA that are closed with unacceptable
action.\3\ The collisions we see in our investigations are tragic
because they are preventable, and we believe the safety issues we
identify in these investigations should be acted on swiftly.
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\2\ A report of all open safety recommendations related to rail
(nontransit) can be accessed here: https://data.ntsb.gov/carol-main-
public/query-builder/route/?t=published&n=28.
\3\ A report of all closed-unacceptable safety recommendations
related to FRA can be accessed here: https://data.ntsb.gov/carol-main-
public/query-builder/route/?t=published&n=33.
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NTSB's Longstanding Interest in Grade Crossings
In 2022, 272 people were killed in collisions at grade crossings,
and the rate of grade crossing collisions has increased significantly
over the past decade, from 2.811 per million train miles in 2013 to
3.758 per million train miles in 2022. 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) to address grade-crossing and
trespasser safety.\4\ In the last 10 years, the rate of grade crossing
incidents has increased by one incident per million train miles.
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\4\ Public Law 117-58.
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Many of you may know of someone who has been killed or injured in a
grade-crossing accident. It was almost 5 years ago, as I'm sure some of
you may remember, that an Amtrak train carrying members of Congress and
staff struck a refuse truck that was stopped on the tracks of a grade
crossing in Crozet, Virginia.\5\ The collision resulted in the death of
one truck passenger, serious injuries to the second passenger, and
minor injuries to the truck driver. Four train crew members and three
train passengers sustained minor injuries. In this case, the NTSB
determined that the truck driver entered the active grade crossing, but
failed to take action once he encountered obstacles, likely due to the
driver's impairment.
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\5\ National Transportation Safety Board. Collision Between
Passenger Train and Refuse Truck at Active Grade Crossing, Crozet,
Virginia, January 31, 2018. Rpt. No. HAB-19/03. Washington, DC: NTSB,
2019.
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The NTSB has a long history of investigating these kinds of
preventable collisions at grade crossings. Over the years, our agency
has issued many recommendations aimed at improving the safety of
motorists and train occupants at crossings. Our investigations have
identified numerous recurring safety issues, such as the following:
Grade separation is needed at high-risk locations.
Improved signage and warnings for motorists are needed at
many crossings.
High vertical profile crossings (``humped crossings'')
continue to cause problems nationwide, with trucks and buses becoming
stuck on tracks.
Traffic queues at grade crossings must be avoided, and
they require active traffic management by local highway authorities to
ensure vehicles are not trapped on tracks.
Adequate line of sight at both public and private grade
crossings is needed to prevent collisions.
Advanced technology solutions (i.e. improved vehicle
navigation systems, connected vehicle-to-train, GPS tracking) could be
used to warn train operators and motorists of active railroad tracks in
the area or of impending conflict.
Improved data and reporting requirements for both public
and private highway-railroad grade crossings are needed.
Increasing participation in Operation Lifesaver to
educate road users about safely walking, rolling, or driving near grade
crossings.
We should be clear up front that the safest treatment for any grade
crossing is its elimination. At grade crossings, trains have the right
of way. Building an overpass or underpass and eliminating the shared
space between trains and automobiles is the surest way to reduce the
possibility of deadly interaction. When grade crossings cannot be
eliminated, it is important to understand the differing levels of
safety afforded by various types of grade-crossing warning systems.
To mitigate collisions with highway vehicles, grade crossings have
either active or passive warning devices. Active grade crossings have
active warning and control devices such as bells, flashing lights, and
gates, in addition to passive warning devices, such as crossbucks (the
familiar x-shaped signs that mean yield to the train), yield or stop
signs, and pavement markings.
NTSB Investigations and Recommendations
During the past decade, the NTSB has conducted over 10 major
collision investigations at grade crossings and has issued numerous
recommendations, mirroring the issues bulleted above, to prevent the
recurrence of similar collisions. Many of our recommendations remain
open and require action.
Each one of our investigations is a significant undertaking, and
resolving the safety issues they raise requires involvement and
collaboration at all levels across government and industry--from
federal, state, and local, to public and private, and must include
members of the affected communities themselves. I would like to begin
my discussion of these incidents and our related safety recommendations
by pointing to one recent example of successful collaboration that I
hope can serve as a model going forward.
On June 27, 2022, eastbound National Railroad Passenger Corporation
(Amtrak) train 4 (also known as the Southwest Chief) derailed both
locomotives and all eight railcars in Mendon, Missouri, after colliding
with an MS Contracting LLC dump truck that had entered a grade crossing
on County Road 113, Porsche Prairie Avenue.\6\ Three passengers and the
truck driver were killed, and 146 other passengers and Amtrak
crewmembers were transported to local hospitals with injuries. Amtrak
and the BNSF Railway Company estimated damage to track and equipment to
be about $4 million.
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\6\ National Transportation Safety Board. Grade Crossing Collision
Between MS Contracting LLC Dump Truck and Amtrak Passenger Train,
Mendon, Missouri, July 27, 2022. Rpt. No. RIR-23/09. Washington, DC:
NTSB, 2023.
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It would be easy for anyone to blame the truck driver, but the
NTSB's investigations take a systems approach. We look broadly at all
factors that could have contributed to such a collision. As such, the
NTSB determined that the cause of the collision, in short, was the
grade crossing's poor design. The road design leading to the crossing
was too steep, and the angle of the crossing was 30 degrees sharper
than the recommended limit. More will be said below about grade-
crossing design, but there is an additional important factor for this
specific investigation: the community in Mendon knew that the grade
crossing was dangerous and had been sounding the alarm for years.
Unfortunately, there were no resources available to them to resolve the
problem.
In response to tragedy, and thanks to the diligent efforts of many
stakeholders--including Chairman Sam Graves of this committee, and his
staff, Missouri Department of Transportation Director Patrick McKenna,
whose efforts were key in achieving a viable solution--the NTSB was
able to convene all parties across different levels of the community to
discuss the community's concerns. A year after the accident, I had the
honor of joining Missouri Governor Mike Parson as he announced a $50
million investment in rail safety, and Director McKenna unveiled a plan
to improve the state's 47 passive grade crossings.
This success was only possible through collaboration, and it must
be emphasized that the NTSB's safety recommendations in relation to
grade crossings, and in relation to railways and other modes of
transportation more generally, always rely on the conviction that a
safe system is the responsibility of every stakeholder. Everyone has a
role to play in ensuring no lives are needlessly lost, so we issue our
recommendations to federal agencies, states, local governments, private
companies, and nonprofit associations in our industry, often urging
they work together to achieve a safer outcome.
What follows is an outline of some of the key outstanding
recommendations and recent investigations related to grade-crossing
safety divided into categories of (1) rail worker safety, (2) grade-
crossing design, (3) technology improvement, and (4) public versus
private grade-crossing safety and hazardous materials (hazmat)
concerns.
Rail Worker Safety at Grade Crossings
The NTSB has long been concerned about rail worker safety, and
there are, of course, risks to train crews when a grade-crossing
collision occurs. We have investigated multiple accidents in which a
railroad worker was killed while riding a shoving movement through a
grade crossing, and we have urged action to ensure greater rail worker
safety in response.\7\
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\7\ A shoving movement is the process of pushing railcars or a
train from the rear with a locomotive.
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In April 2020, the NTSB investigated a collision between a Union
Pacific train and a combination vehicle as the train entered a public
grade crossing outside the Proviso Yard in Northlake, Illinois.\8\ In
this incident, the train and the remote-controlled locomotive collided
with the front of a combination vehicle and the railroad worker
operating the remote-controlled locomotive was killed. The train had
proceeded into a public grade crossing with passive warning devices
without stopping because the train crew determined that ground
protection was not required. The combination vehicle entered the
crossing at the same time, and the train and vehicle collided.
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\8\ NTSB. Union Pacific Railroad Employee Fatality, Northlake,
Illinois, April 23, 2020. Rpt. No. RAB-21/04. Washington, DC: NTSB,
2021.
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The NTSB determined that the probable cause of this collision was
Union Pacific's allowance of train movement through a grade crossing
without first stopping the train to provide warning. Also contributing
to the collision was the combination vehicle driver's failure to stop
for the train as he approached the public grade crossing.
In another incident, on October 29, 2021, a Watco Dock and Rail,
LLC (WDRL) conductor from WDRL train 202 was killed protecting a
shoving movement when the train collided with a combination vehicle at
a private grade crossing outside the Greens Port Industrial Park in
Houston, Texas.\9\ The conductor was riding on the platform of the
leading railcar of train 202 when he was pinned between the train and
the combination vehicle as both vehicles simultaneously entered the
grade crossing of the industrial park.
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\9\ NTSB. Watco Dock and Rail, L.L.C. Employee Fatality, Houston,
Texas, October 29, 2021. Rpt. No. RIR-23/13. Washington, DC: NTSB,
2023.
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The NTSB determined the probable cause of the Houston, Texas,
collision was the failure of the combination vehicle driver to follow
their employer's driver code of conduct to stop the vehicle before
entering the grade crossing. Contributing to the collision was the
train's movement through a passive grade crossing without adequate
protection.
In response to these incidents, the NTSB issued recommendations to
the FRA and to the General Code of Operating Rules Committee, the
Northeast Operating Rules Advisory Committee, Canadian National
Railway, and the Norfolk Southern Corporation. to We recommended that
when approaching crossings not equipped with gates that are in the
fully lowered position, or someone already positioned at the crossing,
rail workers stop the movement, dismount the equipment, protect the
crossing from the ground, and get back on the equipment after the
equipment is through the crossing.\10\ To date, we have received no
response to our recommendations.
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\10\ Safety Recommendations R-23-19 and -20.
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The NTSB is currently investigating another similar incident, which
occurred on March 3, 2023, when a Norfolk Southern Corporation train
and a dump truck collided as they simultaneously entered a private
grade crossing with passive warning devices in Cleveland, Ohio.\11\ In
this incident, the conductor was riding on the end platform of the lead
railcar during a shoving movement in the Cleveland-Cliffs Incorporated
steel plant when he was pinned between the railcar he was riding and
the dump truck during the collision. This investigation is still
ongoing.
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\11\ NTSB. Norfolk Southern Railway Conductor Fatality, Cleveland,
Ohio, March 7, 2023.
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Grade-Crossing Design
On March 7, 2017, a motorcoach carrying a driver and 49 passengers
attempted to move through a grade crossing on Main Street in Biloxi,
Mississippi, that had a high vertical profile.\12\ The frame of the
motorcoach came into contact with the pavement during crossing and
became stuck over the tracks. The motorcoach was then hit by an
eastbound CSX transportation freight train, pushing the motorcoach 259
feet down the tracks before coming to a stop, with the motorcoach still
in contact with the lead locomotive. Four motorcoach passengers died,
and the driver and 37 passengers sustained injuries.
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\12\ NTSB. Collision Between Freight Train and Charter Motorcoach
at High-Profile Highway-Railroad Grade Crossing, Biloxi, Mississippi,
March 7, 2017. Rpt. No. HAR-18/01. Washington, DC: NTSB, 2018.
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The NTSB determined that the probable cause of this collision was
the failure of CSX Transportation and the city of Biloxi to coordinate
and take action to improve the safety of the Main Street grade
crossing, a high-vertical-profile crossing on which motor vehicles were
known to ground frequently. Their inaction led to the grounding of the
motorcoach that was subsequently struck by the CSX Transportation
freight train. Contributing to the circumstances of the collision was
the inadequate guidance from the Federal Highway Administration (FHWA)
on how to mitigate the risks posed by grade crossings with high
vertical profiles.
In response to this investigation, the NTSB successfully urged the
FHWA, with assistance from the FRA, American Association of State
Highway and Transportation Officials, and American Railway Engineering
and Maintenance-of-Way Association, to develop specific criteria to
establish when an existing grade crossing should be reconstructed,
closed, or otherwise have the risk posed by its unsafe vertical profile
comprehensively mitigated.\13\
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\13\ Safety Recommendation H-18-25.
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We also issued further recommendations to the FHWA, which remain
open, urging an update to FHWA grade-crossing signage guidance to
federal, state, and local agencies.\14\ We continue to work with FHWA
to ensure follow-through on this recommendation pending our review of
the revised Manual on Uniform Traffic Control Devices for Streets and
Highways (MUTCD), published December 2023 and officially effective
January 18, 2024.\15\
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\14\ Safety Recommendations H-18-23 and H-18-24.
\15\ US DOT, Federal Highway Administration. Manual on Uniform
Traffic Control Devices for Streets and Highways. Washington, DC: FHWA.
https://mutcd.fhwa.dot.gov/previous_editions.htm.
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The NTSB issued several other recommendations in response to this
investigation aimed at ensuring better coordination between all
relevant stakeholders when it comes to addressing grade-crossing design
and maintenance.\16\
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\16\ Safety Recommendations H-18-28; R-18-12, -13, -14 and -15.; R-
18-12, -13, -14, and -15.
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Technology Improvement
On Tuesday, February 24, 2015, in the predawn hours, Metrolink
commuter train 102, operated by Amtrak, was on route from Oxnard,
California, to Los Angeles.\17\ As the train approached the South Rice
Avenue grade crossing, it collided with a 2005 Ford F450 service truck
towing a 2000 Wells Cargo two-axle utility trailer. The truck driver
had mistakenly turned right from South Rice Avenue onto the Union
Pacific Railroad track, and the truck became lodged on the track 80
feet west of the grade crossing. The train consisted of a cab/coach car
in the lead, three coach cars, and a locomotive at the rear. It was
occupied by three crew members and 51 passengers. The NTSB determined
that the probable cause of the Oxnard, California, collision was the
truck driver mistakenly turning onto the railroad right-of-way due to
acute fatigue and unfamiliarity with the area.
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\17\ NTSB. Train and Truck Crash on Railroad Right-of-Way and
Subsequent Fire, Oxnard, California, February 24, 2015. Rpt. No. HAB-
16/07. Washington, DC: NTSB, 2016.
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In response to this incident, the NTSB issued a multi-recipient
recommendation to Google, Apple, Garmin Ltd., HERE, TomTom NV, INRIX,
MapQuest, Microsoft Corporation, Omnitracs LLC, OpenStreetMap US,
Sensys Networks, StreetLight Data, Inc., Teletrac, Inc., and United
Parcel Service of America, Inc., urging that they incorporate grade
crossing-related geographic data, such as those currently being
prepared by the FRA, into their navigation applications to provide road
users with additional safety cues and to reduce the likelihood of
collisions at or near public or private grade crossings.\18\ This
recommendation remains open to 10 of the 14 recipients, and the NTSB
continues to advocate for implementation by the remaining open
recipient organizations.
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\18\ Safety Recommendation H-16-15.
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Public Versus Private Crossings and Hazardous Materials Concerns
In light of the tragic events in East Palestine, Ohio, on February
3, 2023, and the ongoing investigation into the Norfolk Southern
derailment there, it seems inevitable that some members of this
committee will be wondering if there are examples of train derailments
involving a hazmat release in connection with grade-crossing
collisions. Unfortunately, the answer is yes, and the risk of
significant hazmat release incidents, either at grade crossings or
elsewhere, remains serious.
On May 28, 2013, a 2003 Mack Granite truck was traveling northwest
on a private road toward a private grade crossing in Rosedale,
Maryland, a Baltimore suburb less than a 90-minute drive from our
nation's capital.\19\ The truck was carrying a load of debris to a
recycling center located 3.5 miles from the carrier terminal. About the
same time, a CSX Transportation freight train--which consisted of two
locomotives, 31 empty cars, and 14 loaded cars--was traveling southwest
at a speed of 49 mph. As the train approached the crossing, the train
horn sounded three times. The truck did not stop and was hit by the
train.
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\19\ NTSB. Highway-Railroad Grade Crossing Collision, Rosedale,
Maryland, May 28, 2013. Rpt. No. HAR-14/02. Washington, DC: NTSB, 2014.
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Three of the 15 derailed cars contained hazmat. The other derailed
cars contained non-US DOT-regulated commodities or were empty. One car
loaded with sodium chlorate crystal and four cars loaded with
terephthalic acid released their products.
Following the derailment, a postcrash fire resulted in an
explosion, which caused widespread property damage. The fire remained
confined to the derailed train cars. The truck driver was seriously
injured in the collision. Three workers in a building adjacent to the
railroad tracks and a Maryland Transportation Authority police officer
who responded to the initial incident also received minor injuries as a
result of the explosion.
The NTSB determined that the probable cause of the Rosedale,
Maryland, collision was the truck driver's failure to ensure that the
tracks were clear before traversing the grade crossing. Contributing to
the collision were (1) the truck driver's distraction due to a hands-
free cell phone conversation; (2) the limited sight distance due to
vegetation and roadway curvature; and (3) the Federal Motor Carrier
Safety Administration's (FMCSA's) inadequate oversight of Alban Waste,
LLC, which allowed the new entrant motor carrier to continue operations
despite a serious and consistent pattern of safety deficiencies.
Contributing to the severity of the damage was the postcrash fire and
the resulting explosion of a rail car carrying sodium chlorate, an
oxidizer.
In response to this incident, the NTSB issued several
recommendations to the FRA, the states, the Association of American
Railroads, and the American Short Line and Regional Railroad
Association aimed at ensuring safety equivalence between public and
private grade crossings.\20\ None of these recommendations has been
acceptably addressed.
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\20\ Safety Recommendations R-14-48, -49, -50, -52.
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Current Open Investigations Involving Brightline Intercity Passenger
Rail
Finally, I'd also like to note that we currently have four open
investigations concerning collisions that occurred on grade crossings
along the Brightline intercity passenger rail line in Florida. Two of
these investigations began just in the past week, with two separate
collisions occurring at the same location within days of each other. In
the last five years, there have been over 30 fatalities and over 30
injuries at grade crossings involving Brightline as part of over 100
separate incidents.
On February 8, 2023, in Delray Beach, Florida, a sport utility
vehicle (SUV) stopped with its front tires over the southbound track of
a grade crossing.\21\ The southbound Brightline intercity passenger
train approached that crossing, sounded its horn, and applied emergency
braking, but was unable to stop. The two SUV occupants died from
injuries sustained in the collision. As part of this investigation, we
are also gathering information on the following two subsequent
collisions involving Brightline:
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\21\ NTSB. Fatal Grade Crossing Crash between Sport Utility Vehicle
and Intercity Passenger Train, Delray Beach, Florida, February 8, 2023.
Washington, DC: NTSB, 2023.
On March 3, 2023, in North Miami, Florida, a passenger
car, occupied by the driver and a child passenger, made a left turn and
entered a grade crossing consisting of two main track lines running
north and south. The grade crossing was protected by a combination of
quad-gates, flashing lights, and pavement markings. After crossing the
first set of tracks, the driver became stopped in a traffic queue on
the second set of tracks as traffic ahead waited to turn onto
southbound US-1. After being stopped for about a minute, a southbound
Brightline passenger train approached, causing the grade crossing's
warning devices to activate; the grade crossing entrance gates lowered,
and the lights began flashing. The driver and child exited the car,
leaving it parked on the railroad tracks. After they exited the car,
the traffic ahead cleared, and the grade-crossing exit gate lowered.
Prior to reaching the 141st Street grade crossing, the Brightline train
operator observed the traffic queue, and applied brakes to reduce
speed. When the operator realized that the passenger car was not going
to move, the operator activated the emergency braking system, but was
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unable to stop in time.
On April 12, 2023, in Hollywood, Florida, a truck-tractor
combination car carrier trailer was approaching an intersection with
two sets of railroad tracks, running north and south. The grade
crossing for the tracks was protected by a combination of quad-gates,
flashing lights, and pavement markings. As the combination vehicle
traversed the grade crossing, the undercarriage of the trailer
contacted the ground, causing the vehicle to become stuck on the
tracks. While the truck was stopped on the tracks, a southbound
Brightline passenger train approached, causing the crossing's warning
devices to activate. The trailer was struck on the left side by the
train and the locomotive and next car derailed. One train passenger
sustained a minor injury.
And last week, we opened an investigation into another fatal
collision on January 12 in Melbourne, Florida, involving a Brightline
train at an active grade crossing, resulting in two fatalities. Two
days earlier, another collision at the same crossing resulted in one
fatality.
Again, these investigations are ongoing, and our investigators will
continue to work with the parties involved to identify any potential
areas for safety improvements.
Rail Safety and Reauthorization
Before concluding, I would be remiss if I did not take this
opportunity to mention the needs of the NTSB itself. All the
investigations I have discussed today--all the careful analysis and
safety recommendations, and the material benefits they bring to the
travelling public--would not be possible without the NTSB's meticulous
and expert investigators. As a small, independent federal agency, the
NTSB's primary expense is our personnel, including all these
investigators. Over 70 percent of the agency's funding is used to fund
employee payroll and benefits (which will increase this year due to
increased staffing) and we historically have very little discretionary
funding to spend on an annual basis.
Given the 5.2 percent federal employee pay raise and an increase of
5 percent in the agency's share of employee health benefits, the NTSB's
mission will be greatly impacted if we must continue to operate
indefinitely, or under a full year continuing resolution, at our fiscal
year (FY) 2023 funding levels of $129.3 million. In effect, we are
operating at a cut from FY2023 funding levels.
An appropriations lapse and government shutdown would also
dramatically hinder our ability to begin, continue, and complete
accident and incident investigations and timely issue relevant safety
recommendations, potentially including those that may result from the
NTSB's investigation of the East Palestine investigation and the recent
Alaska Airlines 1282 accident. The effect could be a temporary delay in
investigations under a short shutdown, or it could preclude entire
investigations depending on the length of the lapse, the volume and
complexity of investigations that needed to be performed during a
lapse, and the perishability of the evidence required to conduct
investigations. Many investigations with national safety relevance may
not be undertaken or completed and any resulting safety recommendations
potentially foregone. Other critical work such as assistance to
families of victims, safety studies, or advocacy efforts would be
delayed or cancelled depending on the timing and length of a lapse.
Efforts underway to right-size the agency and bring new staff on board
to backfill critical vacancies would also be halted.
Additionally, as you know, our current authorization expired at the
end of FY 2022, and earlier last year, we transmitted a reauthorization
proposal to Congress, requesting resources and hiring flexibility to
increase the number of investigators throughout the agency.\22\
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\22\ National Transportation Safety Board Draft Reauthorization Act
of 2023. Washington, DC: NTSB.
---------------------------------------------------------------------------
I am deeply grateful to this committee for its responsiveness to
our request, and for including NTSB reauthorization in its FAA
legislation last year and moving that legislation through the House.
With a strongly bipartisan voice, this committee ensured that House
legislation supported critical efforts to strengthen the NTSB and
better position our agency to pursue its life-saving mission in the
transportation space. In particular, your inclusion of authorization
for increased funding levels supports our efforts to obtain increased
funding during negotiations with appropriators and OMB.
House Transportation and Infrastructure Committee members also
fought to ensure the NTSB's needs were reflected in House
appropriations legislation, and I would like, in particular, to express
my gratitude to Representative Van Orden for his amendment to increase
NTSB funding levels in FY 2024. I can only hope the Senate matches the
House committee's good work in support of the NTSB and transportation
safety.
We need these additional resources, among other reasons, because
the NTSB is required to investigate any railroad accident in the
country in which there is a fatality or ``substantial'' property
damage, or that involves a passenger train.\23\ We must currently meet
this mandate with only 19 investigators, two of whom are eligible for
retirement. Those 19 investigators are currently working on 21
investigations, and we open about 12 new investigations each year. This
office is understaffed. In fact, as part of our reauthorization
proposal, we identified a need for 21 additional staff in our Rail,
Pipeline and Hazardous Materials office over the next 5 years. Our
reauthorization request only fills a portion of this need.
---------------------------------------------------------------------------
\23\ 49 United States Code (U.S.C.) 1131(a)(1)(C).
---------------------------------------------------------------------------
I am happy to report that, over the last 2 years, we have already
made great progress across the agency toward our goals to ensure that
our employees have the right skill set, staffing up to our highest
level since 2017 to 428 people at the end of 2023. In FY 2023, we hired
71 people, the highest number in 10 years. Our reauthorization proposal
anticipates adding roughly 15 new employees per year through 2027, in
addition to filling the vacancies that will occur through retirements
and separations.
Since February of 2022, we have significantly reduced the backlog
of investigations open for more than 2 years from 442 to zero at the
end of FY 2023, by filling open investigative and technical review
positions, reassigning investigations that could be expedited, using
reemployed annuitants to broaden the pool of report reviewers in the
short term, enhancing employee performance standards, and developing
quality metrics and a means to track them for all investigations.
The resources provided in this reauthorization 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.
Even if provided with the requested resources and workforce
flexibilities, however, we would be challenged to meet the broad rail
investigations mandate in Title 49 United States Code (U.S.C.) 1131,
given the tragic number of fatalities that result from collisions at
grade crossings or involving trespassers on railroad property each
year.
That's why our reauthorization proposal would amend the current
mandate so that collisions 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 collisions 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 collisions as highway investigations that include railroad
investigators. This change to our mandate would allow us to focus our
resources on investigating those accidents and collisions 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 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.\24\ We appreciate that the IIJA includes a
provision to address this issue by requiring the DOT to develop a
standard process for its rail accident and incident investigations,
including consulting with relevant entities, including employees.\25\
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\24\ Safety Recommendation R-14-37.
\25\ 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 grade crossings is not a priority for the NTSB. On
the contrary, more flexibility will allow us to focus on specific
collision investigations that afford the most safety benefit to the
American people.
Conclusion
Again, thank you for the opportunity to discuss these critical rail
safety issues and the NTSB's perspectives and recommendations with the
committee today. We believe strongly that continued vigilance and
improvement are needed in our rail system. We recognize the progress
that has been made; yet there will always be room for more when it
comes to safety. We stand ready to work with the committee to continue
improving rail safety, which includes ensuring that the NTSB has the
resources needed to carry out our essential mission.
I am happy to answer your questions.
Letter of September 30, 2021, to Hon. Pete Buttigieg, Secretary, U.S.
Department of Transportation, from Hon. Jennifer L. Homendy, Chair,
National Transportation Safety Board, Submitted for the Record by Hon.
Jennifer L. Homendy
National Transportation Safety Board,
Washington, DC 20594,
September 30, 2021.
The Honorable Pete Buttigieg,
Secretary,
U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington,
DC 20590.
Dear Mr. Secretary:
Today, the National Transportation Safety Board (NTSB) issued its
final report on our investigation into the April 24, 2018, fatality of
an Amtrak rail gang watchman who was struck by Amtrak train 86 in
Bowie, Maryland. Regrettably, the circumstances of this roadway
worker's death were tragically familiar. The watchman--one of three
tasked with protecting the safety of roadway work groups performing
track maintenance on a main track--was placed near the end of a curve
in the track. While the center track was occupied by maintenance
equipment and no trains were operating, train movements on the two
immediately adjacent tracks were allowed to continue as scheduled. The
only protection for the roadway workers on the in-service tracks was
the use of train approach warning (TAW). As the watchman was focused on
his work crew and a southbound Maryland Area Rail Commuter (MARC) train
servicing one adjacent track, he was unaware of northbound Amtrak train
86 approaching from behind him on the other adjacent track. He was
struck and killed.
Just as this watchman was entrusted with the duty to protect his
roadway work group, the Federal Railroad Administration (FRA) was in
turn entrusted to protect him--through rule, regulation, and oversight.
For nearly 25 years, however, the FRA has shifted this responsibility
for roadway worker protection back onto the workers themselves, through
the express sanction of TAW as an approved method of on-track safety.
In doing so, the FRA failed in its responsibility to protect the
watchman in Bowie, Maryland, as it has failed to protect so many
roadway workers before.
The Rail Safety Improvement Act of 2008 mandated that all Class I
and passenger railroads fully implement positive train control (PTC)
systems. That requirement was implemented nationwide on December 31,
2020. PTC is a technology-based system to prevent train accidents
caused by human error, including train-to-train collisions, overspeed
derailments, incursions into established working limits, and movements
of trains through a switch left in the wrong position. TAW, however,
does not require the establishment of working limits and, therefore,
circumvents the protections that would be provided by PTC in controlled
track territory. In short, the decades of government- and industry-wide
effort put into the implementation of PTC is being undone by the
continued use of TAW.
In February 2017, the Fatality Analysis of Maintenance-of-way
Employees and Signalmen (FAMES) Committee estimated that in the 20
years following the adoption of the Roadway Worker Protection Rule, the
use of TAW was involved in 13 accidents, resulting in the deaths of 16
roadway workers. We at the NTSB have continued to investigate accident
after accident in which the shortcomings of TAW as a method of on-track
safety have been laid bare:
On April 3, 2016, southbound Amtrak train 89 struck a
backhoe occupied by a roadway worker in a work zone near Chester,
Pennsylvania. The train had been authorized to operate at 110 mph
through the work zone. Two roadway workers were killed, and 39 others
were injured.
On January 17, 2017, a BNSF Railway freight train struck
and killed a watchman and one other roadway worker in Edgemont, South
Dakota, as a group of three workers cleaned snow and ice from a track
switch on the main track.
On June 10, 2017, a road crew foreman stepped into the
path of a Long Island Rail Road train at the Queens Interlocking in
Queens Village, New York, after the train had sounded its horn to warn
the roadway work group of its approach. The foreman was struck and
killed.
In our final report on the Queens Village accident investigation,
we sought once again to highlight the need to mitigate the risks of TAW
to roadway worker safety, by issuing Safety Recommendation R-20-6 to
the FRA:
Define when the risks associated with using train approach
warning are unacceptable and revise Title 49 Code of Federal
Regulations 214.329 to prohibit the use of train approach
warning when the defined risks are unacceptable. (R-20-6)
The FRA disagreed with our suggested recommendation--not because it
would fail to enhance roadway worker safety, but because the FRA
rejected our underlying investigation findings from the Queens Village
accident itself. The FRA stated that the roadway workers involved in
the accident ``did not comply with the most basic requirements'' of FRA
regulations governing TAW, because they failed to discuss and then
occupy a predetermined place of safety from oncoming trains. Therefore,
the FRA stated that it believed that these failures, not the decision
to use TAW, were the cause of the accident: ``If the roadway workers
involved in this accident had followed the requirements of TAW, this
accident would not have occurred.''
In our investigations, it is all too common for organizations to
deny or deflect responsibility for their role in the chain of accident
causation. At the NTSB, however, our mission is to identify every
element contributing to an accident--not to lay blame at the feet of
front-line workers whose errors represented the last link in that
causal chain. Our safety recommendations, if implemented, serve to
prevent the occurrence of similar accidents in the future, and that is
precisely why we direct them to the agencies, organizations, and
individuals in the best position to effect such changes. Those who
ignore our recommendations do so at the expense of the very people
whose safety has been entrusted to them.
At the risk of tragic repetition, the circumstances of the Bowie,
Maryland, accident provide the FRA an opportunity to correct its past,
and ongoing, mistake. The NTSB's final report on the Bowie accident
reiterates Safety Recommendation R-20-6 to the FRA, and further issues
a new recommendation that seeks to put into clear and unambiguous
language the step the FRA must take to protect on-track workers
nationwide:
Modify Title 49 Code of Federal Regulations Part 214 to
prohibit the use of train approach warning in controlled track
territory during planned maintenance and inspection activities.
(R-21-3)
The Bowie, Maryland, accident--and many others before it--prove
that placing the sole responsibility for managing roadway worker risk
upon lookouts and watchmen, while also requiring them to monitor,
simultaneously, such dynamic elements as train speed, track
characteristics, sight distance, noise, and environmental conditions,
is simply untenable. When such alternatives as exclusive track
occupancy, foul time, and train coordination exist, the continued use
of TAW as a method of on-track safety is a deadly risk that the
American rail worker cannot be asked to bear.
The NTSB looks to your leadership to protect rail workers and
ensure the favorable implementation of Safety Recommendations R-20-6
and R-21-3.
Sincerely,
Jennifer Homendy,
Chair.
cc: The Honorable Amit Bose
Acting Administrator
Federal Railroad Administration
Mr. Nehls. Thank you, Chair Homendy. I now recognize Mr.
Jefferies, the president and CEO of Association of American
Railroads.
You are recognized for 5 minutes.
TESTIMONY OF IAN JEFFERIES, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, ASSOCIATION OF AMERICAN RAILROADS
Mr. Jefferies. Chair Nehls, Ranking Member Payne, members
of the subcommittee, thank you for the opportunity to speak
with you today about grade crossing safety and broader trends
across the freight rail industry. And I will start with one
unequivocal truism: Freight rail remains, by far, the safest
way to move goods on land, especially hazardous materials.
Railroads continue to hit high-water marks in rates
pertaining to main line accidents, hazmat accidents, employee
injuries, and others. Yet more work remains to be done.
Consistent progress is realized through our dedicated employee
base, sustained private investment, and an overall safety
culture that permeates all aspects of railroading.
Rail workers are the tip of the spear, and I am proud of
the progress we are making on quality-of-life matters. To date,
80 percent of operating craft employees have new scheduling
agreements to provide a more predictable work schedule for
work-life balance, while 92 percent of covered rail employees
have paid sick leave.
Our actions in prevention, mitigation, and response, as
outlined in my written testimony, demonstrate how much we can
accomplish in a short period. Consider our work with first
responders, over 2 million of which now have access to our
AskRail software application to support them in the rare
occurrence of an accident in their community.
The next leap forward in safety requires innovation and
deployment of myriad technological tools, many of which exist
today. Technology allows us to conduct more indepth
inspections, advance operational processes, and reduce risk to
our employees. And to achieve this, we must have regulatory
partners that embrace and support innovation.
Grade crossings, however, remain a key area of improvement
for safety and community interaction. Consider that accidents
at grade crossings and trespassing on railroad rights-of-way
account for 95 percent of rail-related fatalities. Tragically,
most of these accidents are preventable. In 2022, 66 percent of
all highway-rail crossing incidents and 82 percent of crossing
fatalities occurred at crossings equipped with active warning
devices.
Carriers large and small work every day to improve safety
around our crossings, and we also partner with the team at
Operation Lifesaver to educate the public about this critical
issue. Significant work remains, and policymakers play a unique
role. That's because States, not railroads, are responsible for
the road infrastructure at grade crossings and in deciding
which grade crossings to prioritize for action. Congress and
the DOT determine the dollar figures and direct them
accordingly to support communities.
Our members work closely with officials, spending hundreds
of millions of dollars per year to improve crossings and
generally maintain crossings and warning devices once they are
installed. The number of gates at crossings has increased by 40
percent since 2005. Yet again, more work remains to be done.
Railroads coordinate with State and local governments to
plan and fund separation projects and closures, while also
working with law enforcement to address pressing concerns.
And direct Federal dollars are having a marked impact. The
IIJA allocates $245 million annually for the Section 130
Program to install and upgrade warning devices. The law, as we
have heard, also created a new Grade Crossing Elimination
Program, providing $600 million per year in grants through
2025. The program remains fully subscribed, and last year, the
FRA announced its first grant awards, providing funds to
improve grade crossing safety at some 400 crossings across 32
States.
Because the safest crossing is no crossing at all, funding
separations and closures is a primary goal, which brings me to
an issue I would be remiss not to address, which is the topic
of blocked crossings. There is no simple answer for solving
this issue across a complex network. Yet today, every public
grade crossing has a phone number and identification number to
communicate crossing-related issues, and companies use this and
on-the-ground information to identify solutions such as new
technologies, investing hard dollars, or changing up
operational flows. More progress is necessary, and working
together, we can achieve that.
In closing, members of this subcommittee understand that
railroads are safe, environmentally efficient, and critical to
the U.S. economy. While we will continue to make progress
through our own actions, we can also work together,
facilitating smart safety improvements to save lives and
minimize disruptions. Any legislative or regulatory efforts
should be grounded in data and focused on desired outcomes. On
the contrary, efforts that are focused on inputs and grounded
in belief versus science are ill-advised and risk unintended
consequences.
Thank you for your time, and I look forward to our
discussion today.
[Mr. Jefferies' prepared statement follows:]
Prepared Statement of Ian Jefferies, President and Chief Executive
Officer, Association of American Railroads
Introduction
On behalf of the members of the Association of American Railroads
(AAR), thank you for the opportunity to testify on the challenges and
opportunities of grade crossing safety. AAR's members account for the
vast majority of America's freight railroad mileage, employees, and
traffic. Together with their Mexican and Canadian counterparts, U.S.
freight railroads form an integrated, continent-wide network that
provides safe, reliable, and efficient rail service.
Most problems associated with highway-rail crossings occur at
public grade crossings--where a railroad crosses a public roadway at
road level. These problems can range from blocked crossings that cause
congestion and safety concerns in communities, to motorist and
pedestrian collisions that can result in loss of life or serious
injury, but railroads are committed to addressing these concerns by
working with federal, state, and local stakeholders and continue to see
progress. Fatalities at grade crossings have declined over the last few
decades as railroads have worked in collaboration with the Department
of Transportation (DOT) and states to reduce the number of crossings
and install safety devices across the country; with Congress to
increase awareness by ensuring grade crossings are marked on GPS
platforms and to create the Grade Crossing Elimination Program; and
with public and private entities to address grade crossings safety and
fund projects to close and separate grade crossings. Even with these
collaborative efforts, railroads recognize more must be done to improve
safety at grade crossings, support the communities in which they
operate, and keep the rail network moving as safely and efficiently as
possible.
Railroads are Addressing Safety for Motorists and Pedestrians
Because trains often require a mile or more to stop and can't
deviate from their course, vehicle collisions and pedestrian accidents
at grade crossings can occur, often with tragic results. These two
categories--accidents at grade crossings and trespassing on railroad
rights-of-way--typically account for approximately 95 percent of rail-
related fatalities and have a serious, often-unseen, impact on the
railroad engineers who witness but can do nothing to stop the accident.
For these reasons, railroads diligently work to improve motorist and
pedestrian safety at grade crossings.
All grade crossings are equipped either with train-activated
``active warning devices'' (such as gates, flashing lights, and stop
lights) or ``passive warning devices'' (such as crossbucks, stop signs,
and yield signs). States, not railroads, are responsible for evaluating
grade crossing risks and prioritizing grade crossings for improvement.
The decision to install a specific type of warning device at a
particular public grade crossing is typically made by the state highway
authority and approved by the Federal Highway Administration (FHWA),
not by railroads. The characteristics of a crossing determine the
appropriate type of warning devices. Factors that help predict the
number and severity of accidents at a particular crossing include
highway volumes, train traffic, maximum train speed, number of main
tracks, number of highway lanes, and whether the crossing is rural or
urban. Once installed, the maintenance of grade crossings and their
warning devices is generally the responsibility of railroads.
Over time, states are transitioning away from passive devices to
active warning devices. For example, the number of gates at public
crossings has grown by 40 percent since 2005. Because it is so
difficult for freight trains to stop, these devices are designed for
motorist safety. However, the deliberate violation of traffic laws is a
major problem at grade crossings, including those with active warning
devices. In 2022, 66 percent of all highway-rail crossing incidents,
and 82 percent of crossing fatalities, occurred at crossings equipped
with active warning devices. Motorists too often drive around lowered
gates, ignore flashing lights and ringing bells, proceed through red
traffic lights, or misjudge a train's speed and stopping capabilities,
often with tragic results. Data from the Federal Railroad
Administration (FRA) suggest that over the past 20 years, at least
1,500 lives would have been saved at public highway-rail crossings if
motorists had obeyed traffic laws when an active signal warned them a
train was present or approaching. Although crossing incidents usually
arise from factors largely outside railroad control, railroads are
committed to reducing the frequency of crossing incidents.
Significant progress has been made in improving grade crossing
safety, as shown by FRA data, but more can be done. Grade crossing
collisions in 2022 were down 37 percent from 2000, and the grade
crossing collision rate was 22 percent lower in 2022 than in 2000.
Trespassing is another area of concern at grade crossings. It is an
unfortunate reality that too many people inappropriately use railroad
property for short cuts, recreation, or other purposes, sometimes with
tragic results.
Most grade crossing and rail-related pedestrian accidents are
preventable and can best be reduced through education, engineering, and
enforcement. The average American does not realize the destructive
force of a fast-moving, fully-loaded freight train. Operation
Lifesaver, a non-profit whose central message is ``look, listen, and
live,'' deserves special commendation for its efforts to educate the
public about the dangers of grade crossings and trespassing on railroad
property. Operation Lifesaver started in Idaho in 1972 and today has
chapters in nearly every state. Its educators, many of whom are current
or retired rail industry employees, have provided free safety
presentations to millions of Americans, including school children,
driver's education students, truck drivers, and bus drivers.
Railroads also spend hundreds of millions of dollars each year to
improve grade crossing safety through:
Cooperating with state agencies to install and upgrade
warning devices and signals and maintain them in perpetuity;
Coordinating with state and local governments to plan and
fund grade crossing separation projects;
Supporting Operation Lifesaver with financial and other
resources;
Providing resources to close unneeded crossings;
Coordinating with law enforcement and others to address
safety concerns;
Installing signs at grade crossings with telephone
numbers the public can use to alert railroads to unsafe conditions; and
Supporting tough penalties for grade crossing traffic
violations and the inclusion of grade crossing safety in drivers'
education programs.
Dedicated Funding for Grade Crossing and Pedestrian Safety is Essential
Railroads believe the safest grade crossing is no grade crossing at
all and have supported efforts to separate crossings through tunnels
and bridges and to close unnecessary grade crossings. Dedicated federal
funding to improve grade crossing safety and separate grade crossings
has been essential because these projects often don't receive the same
funding priority as other infrastructure needs in broader competitive
grant programs.
For example, the Section 130 program administered by the FHWA
provides federal funding for states to improve safety at grade
crossings. Most recently, the Infrastructure Investment and Jobs Act
(IIJA) allocated $245 million in Section 130 funds each year through
2026 for installing new and upgraded warning devices and improving
grade crossing surfaces.
In addition, the Railroad Crossing Elimination Grant Program,
created by Section 22305 of the IIJA, provides more than $500 million
per year in competitive grants through 2026 for state and local
governments to eliminate highway-rail grade crossings, which are often
complex, expensive projects state and local governments could not fund
on their own. The program is designed to create a pipeline of grade
crossing elimination projects through smaller planning and engineering
grants as well. On June 5, 2023, the FRA announced the first grant
awards under the new program, providing $570 million to improve grade
crossing safety across 32 states.
These investments will have a major impact in states and
communities around the country, and I am pleased to be testifying
alongside Indiana's DOT Commissioner, Michael Smith, whose state has
been at the forefront of addressing grade crossing safety. Indiana's
Railroad Grade Crossing Fund and Grade Crossing Closing grants, which
provide incentive funding for communities to close at-grade public
crossings, served as a model on which IIJA's grade crossing program was
built. Because of their focus on grade crossing safety, Indiana was
well positioned to apply for the Grade Crossing Elimination Program and
was awarded $21 million in Fiscal Year 2023 to eliminate three
crossings in the state. Their work is one example of how collaboration
between the federal government, states, and railroads can lead to
better safety outcomes.
Railroads commend this committee for addressing these critical
public needs through these programs, which will save lives, prevent
injuries, and keep people and freight moving safely and reliably
throughout the country. We fully support both programs and look forward
to continuing to work with the Committee to provide robust funding in
the years to come.
Causes of Blocked Crossings Are Varied
Railroads understand blocked crossings impact communities and seek
to minimize those impacts in all aspects of their operations. However,
as communities near rail lines and rail facilities expand, new
challenges related to grade crossings arise. Railroads hate stopped
trains almost as much as the impacted communities, and it's in the best
interest of railroads to keep trains moving safely and minimize these
impacts. Because of the complexity of rail operations and the
sometimes-competing demands of stakeholders, finding effective
solutions can be challenging. Railroads are committed to working with
local officials and other stakeholders.
There are many causes of blocked crossings. Some blocked crossings
result from rail operating practices, including trains servicing rail
customer facilities near a crossing, congestion on the tracks ahead or
in a nearby rail yard, or mandatory safety tests or crew changes
required by government regulations, among other issues. In many cases,
blockages occur at crossings near customer facilities or rail
facilities that were originally built in isolated areas but, because of
community expansion, now find themselves adjacent to roadways or
developed areas. Other blocked crossings result from events over which
railroads have little or no control, including weather events and
accidents or incidents on neighboring tracks. When these unpredictable
events occur, railroads work very hard to return to normal operations
and reduce impacts on nearby communities.
The need to keep the network moving safely and efficiently provides
a major incentive for railroads to work diligently to prevent blocked
crossings from occurring and address them as quickly as possible.
Railroads Are Working to Reduce Grade Crossing Blockages
Railroads work closely with local officials, operating personnel,
customers, and others to identify where and why blockages are occurring
and to develop strategies to avoid future problems. Today, every public
grade crossing has a 24/7 emergency phone number and an identification
number to communicate crossing-related issues with the railroads.
Railroads use this information, along with information from their
operating teams and other sources, to identify workable solutions to
blocked crossings. Some railroads are investing in new technology,
including dynamic signs that let motorists and first responders know
when a train is occupying an upcoming crossing or to display estimated
wait times so community members can avoid the area if possible.
Sometimes site-specific adjustments to operating practices are
feasible. For example, when blockages are caused by trains entering or
exiting a customer facility, timing could be modified to minimize
blockages. Additionally, railroads may be able to move crew change
locations to lessen the impact on surrounding communities. However,
changes to rail operating practices are not always feasible. Railroads
must consider the impact on the national network and rail service when
making operational decisions while also taking into account the impact
on communities in which they operate.
Railroads also address blocked crossings through infrastructure
investments, such as lengthening or building new sidings to accommodate
current train lengths or, as mentioned above, working with state and
local governments to eliminate and separate a crossing as appropriate.
Railroads Are Working to Improve the Safety of Their Operations
For freight railroads, pursuing safe operations is not an option;
it's an imperative. Railroads are proud of their current safety record.
However, early last year, we all saw the impact a train derailment can
have on a community. Every rail accident is one too many, and
railroads' ultimate goal is to eliminate accidents altogether. We
remain focused on the three tenets of safety improvement: responding
when accidents occur, improving mitigation efforts, and preventing
future incidents.
While we don't have complete data for all of 2023, Federal Railroad
Administration (FRA) data confirms that 2022, the most recent year for
which complete data is available, was the safest year ever for
incidents involving hazardous materials and for mainline derailments:
The overall train accident rate was 23 percent lower in
2022 than in 2000. The accident rate for trains traveling on railroad
mainlines--that is, outside of rail yards--was 42 percent lower in 2022
than in 2000. For Class I freight railroads, the mainline accident rate
was down 47 percent from 2000 and set a record low in 2022.
The overall train derailment rate fell 29 percent from
2000 to 2022.
The rate of train accidents caused by track defects fell
53 percent from 2000 to 2022 and set a record low in 2022.
The rate of accidents caused by equipment defects (mainly
locomotives and freight cars) fell 19 percent from 2000 to 2022.
The hazardous materials accident rate in 2022 was 73
percent lower than in 2000.
From 2000 through 2022, the employee injury rate was down
46 percent, and preliminary data indicates 2023 will have a record low
employee on duty fatality rate. According to data from the Department
of Labor, railroads have lower employee injury rates than most other
major industries, including trucking, airlines, agriculture, mining,
manufacturing, and construction--even lower than grocery stores.
This data makes clear that our employees' strong safety culture,
paired with the industry's sustained, disciplined investments in
maintenance and technologies that target the primary causes of
accidents, deliver meaningful safety results. Every train accident is
one too many, and the need to make progress in the march to zero
accidents is ever present.
Conclusion
Freight railroads recognize the importance of continuing their
commitment to the safety of their employees, their customers, and the
communities in which they operate. The rail industry will continue to
work closely and cooperatively with Congress, individual states, the
FRA, and others to reduce the frequency of accidents at highway-rail
crossings and across the network. Railroads must keep improving in all
aspects of rail safety, but the progress made demonstrates that the
industry will do what it takes to meet that challenge.
Mr. Nehls. Thank you, Mr. Jefferies. I would like to
recognize Mr. Carson from Indiana to introduce our final
witness.
Mr. Carson. Thank you so very much, Chairman Nehls and
Ranking Member Payne. Thank you for allowing me to introduce
one of our witnesses today, Mr. Mike Smith from the great
Hoosier State. He is the commissioner of Indiana's Department
of Transportation since 2022.
Mike is responsible for INDOT's 3,500 employees and a $4
billion annual budget. Prior to his service in State
government, he worked in the private sector with the Nation's
largest retailer with a degree in management from Indiana
University's Kelley School of Business.
Mike has been very focused on addressing the terrible
problem our State faces with blocked railroad crossings. With
more than 7,500 grade crossings, the fifth highest in the
country, Indiana and Indianapolis are truly the crossroads of
America, and it is my great honor to welcome this hard-working
Hoosier to testify before our rail subcommittee today.
Thank you, and I yield back.
Mr. Nehls. Thank you, Mr. Carson.
With that, Commissioner Smith, you are recognized for 5
minutes.
TESTIMONY OF HON. MICHAEL J. SMITH, COMMISSIONER, INDIANA
DEPARTMENT OF TRANSPORTATION
Mr. Smith. Thank you, Congressman Carson, and thank you,
Chair Nehls, and thank you to all the members of the committee
for the opportunity to testify today concerning highway-rail
crossings and rail crossing safety.
Indiana faces a unique challenge, but also immense
opportunity. With Chicago, the Nation's largest rail hub, near
the Hoosier State, some of the busiest rail lines cross our
State, resulting in more than 7,500 highway grade crossings,
the fifth highest in the United States. Over the last two
decades, we have seen a decrease in the number of highway-rail
grade crossing collisions. And as a State, we have made great
strides in our efforts to improve safety and mobility through
crossing removals, grade separations, and other upgrades.
Even as we gain momentum, Indiana still finds itself among
the highest rate of incidents of rail crossing collisions,
injuries, and fatalities on a year-over-year basis. As of
November, there were 78 collisions at highway-rail grade
crossings, resulting in 12 fatalities and 20 injuries in our
State. These numbers make it clear that there is more work to
do.
In Indiana, there are multiple agents of change underway,
including our own Local Trax Rail Overpass Program, through
which the agency serves as an example to others with an
innovative program that promotes and encourages collaboration
and teamwork amongst State entities, local entities, and the
private sector. In 2018, Governor Holcomb and INDOT announced
12 local communities would receive awards for Local Trax
funding for grade separation, crossing closure, and other
safety enhancements. Our total investment was $125 million, so,
$125 million of State investment and skin in the game in
solving this problem. We anticipate that 11 of those projects
will be underway by next year.
One of the larger Local Trax efforts is a grade separation
project in Elkhart County. This more than $40 million
construction project will construct a rail overpass to improve
safety and mobility for motorists, pedestrians, and trains at
two existing at-grade crossings.
Multiple projects in Indiana were recipients of a total of
$21 million in the Railroad Crossing Elimination Grants from
the FRA. One of those specifically was the Governor's Parkway
Railroad Overpass, which Ranking Member Payne mentioned as a
sticking point for students having to cross underneath train
cars. The nearly $17 million project will eliminate two at-
grade crossings and provide a safer, more efficient grade-
separated overpass for all road users in the area where we have
significant long-term train blockages.
The State has also seen an exponential growth in the
successful use of Section 130 Rail-Highway Crossing Program
funds. Through this Federal program, Indiana is on track to
improve 85 of the top 100 most dangerous and high-risk public
crossing areas over the next 5 years in our State.
The State's data-driven approach and comprehensive planning
efforts have resulted in 122 crossing improvement projects in
just the last 3 years alone, including safety improvements such
as installing warning bells, lights, and overhead cantilevers,
in addition to some of the larger and major improvements that I
have already discussed.
Indiana's efforts are outlined in the State's Highway-Rail
Grade Crossing Safety Action Plan. As we await final approval
on that plan from the FRA, a variety of strategies have been
identified, some of which include closing crossings, which is a
great priority in our State; creating separations to eliminate
the traffic between road users and trains; upgrading passive
warnings to active; and engaging local agencies on traffic
signal preemption.
We are also proud of the work that we are doing on the
South Shore Line to double track and make that facility more
safe, which is on the way to being completed this spring or
summer. The West Lake Corridor extension of that line is to be
opened in 2025, which is the largest investment in public
transit and commuter rail in the State's history.
And as a quick aside, my final item on the way to Vision
Zero, the agency and myself have set a goal of reducing
fatalities and severe incidents across our network to include
rail, bike path, and highway safety over the next 10 years.
I thank you for your time.
[Mr. Smith's prepared statement follows:]
Prepared Statement of Hon. Michael J. Smith, Commissioner, Indiana
Department of Transportation
To the Subcommittee on Railroads, Pipelines, and Hazardous
Materials:
My name is Mike Smith, Commissioner of the Indiana Department of
Transportation. It's an honor to be here today and I thank you for your
time.
Concerning highway-rail crossings and rail crossing safety, Indiana
faces a unique challenge that comes with immense opportunity. With
Chicago, the nation's largest rail hub, in close proximity to the
Hoosier State, some of the busiest rail lines cross Indiana, resulting
in more than 7,500 highway-grade crossings, the fifth highest in the
U.S.
Over the last two decades, we've seen a decrease in the number of
highway-rail grade crossing collisions and as a state, we've made great
strides in our efforts to improve safety and mobility through crossing
removals, grade separations and other upgrades.
Even as we gain momentum, Indiana still finds itself among the
highest incidences of rail crossing collisions, injuries and fatalities
each year. As of November, there were 78 collisions at public highway-
railroad crossings in 2023, resulting in 12 fatalities and 20 injuries.
These numbers make it clear that the job is not finished, and there is
more work to be done.
In Indiana, multiple agents of change are in play related to rail
crossing safety, one of those being INDOT's Local Trax Rail Overpass
Program, through which the agency serves as an example to others in
developing innovative programs that promote and encourage collaboration
and teamwork amongst state, local, and private partners.
In 2018, Governor Eric Holcomb and INDOT announced twelve local
communities receiving Local Trax funding for grade separation, crossing
closure and other safety enhancement projects at local rail
intersections, totaling more than $125 million in state dollars. We
anticipate eleven projects across the state to be under construction by
the end of next year (2025).
One of the larger Local Trax efforts is a grade separation project
in Elkhart County. The more than $40 million project will construct a
rail overpass to improve safety and mobility for motorists, pedestrians
and trains at two existing at-grade crossings. In addition to the grade
separation, the county is investing in nearby infrastructure, further
improving the area for the local community.
Multiple projects in Indiana were recipients of a total of $21
million in Railroad Crossing Elimination (RCE) grants from the Federal
Railroad Administration (FRA), one of those being the Governor's
Parkway Railroad Overpass project in Hammond. The nearly $17 million
project will eliminate two at-grade crossings and provide a safer, more
efficient grade-separated overpass for all road users in an area that
regularly sees long-term train blockages, resulting in access concerns
for pedestrians, drivers and emergency services.
These efforts, through INDOT's Local Trax program, are an
illustration of the agency's ongoing commitment to engage and
collaborate with local partners to improve safety, mobility and quality
of life for Hoosiers.
The State has also seen exponential growth in successful use of
Section 130 Rail-Highway Crossing Program funds. Through the federal
program, Indiana is on track to improve 85 of the state's top 100 high-
risk public crossings over the next five years (by 2029).
The State's data-driven approach and comprehensive planning efforts
have resulted in 122 crossing improvement projects in the last three
years alone (2021-2023), including safety improvements such as
installation of warning bells, lights and overhead cantilevers to
larger-scale grade separation projects and crossing removals.
Indiana's efforts are outlined in the state's Highway-Rail Grade
Crossing Safety Action Plan. As we await final plan approval from the
FRA, a variety of strategies have been identified to continue our focus
on system-wide, multidisciplinary solutions that will be prioritized
for funding and implemented going forward, including:
Closing crossings or creating separations to eliminate
interactions between trains and road users
Upgrading passive warnings to active, improving and
maintaining existing devices
Engaging local agencies on traffic signal preemption and
how it can be implemented
Collaborating with railroads and local agencies to
explore broader implementation and maintenance of passive warning
enhancements
Informing and educating stakeholders on highway-rail
grade crossing topics
Considering rail-grade crossing safety in all
transportation projects
Collaborating with enforcement agencies to help prevent
crashes at highway-rail grade crossings
Aside from crossing safety improvements, progress is continuing on
the South Shore Line's Double Track and West Lake Corridor commuter
rail projects in northwest Indiana. Both projects will enhance mobility
in one of the state's largest urban areas near Chicago and make up the
largest public transit investment in state history. The Double Track
project is expected to begin revenue service in spring/summer 2024,
followed by the West Lake Corridor project in 2025.
The final concept I have to share is INDOT's new agency safety
goal--to reduce fatalities and incapacitating injuries by 25 percent
over 10 years. This is a measurable goal for the entirety of Indiana's
roadway network, state and local, and includes incidents at highway-
rail crossings. INDOT will be leading the charge in this endeavor and
intends to work with partners at all levels to create positive change
and improve roadway safety. One of the biggest challenges we're up
against, similar to crossing safety, is changing driver behavior. In a
world of cell phones and other countless distractions for drivers, it's
imperative that we all work together on the shared priority that is
safety.
Mr. Nehls. Thank you, Commissioner Smith. Thank you all for
your testimony. We now turn to questions for the panel. I will
recognize myself for 5 minutes.
Administrator Bose, the Railroad Crossing Elimination Grant
Program is just over 2 years old. Two years. For fiscal year
2022, FRA issued a Notice of Funding Opportunity for this
program, but failed to do so in 2023. Given the importance of
this program for railroad safety, why did the FRA fail to
release a Notice of Funding Opportunity for fiscal year 2023?
Mr. Bose. Mr. Chairman, thank you for that question.
Implementing the Bipartisan Infrastructure Law was a huge
undertaking at FRA. We needed to have the resources in place to
have a robust program. So, that is one reason. But we look
forward to the next round going out as soon as possible.
Mr. Nehls. Do you anticipate a time? Can you----
Mr. Bose [interrupting]. We are going to have a calendar in
the very near future, in January, of all of our grant programs
for this year. So, you will see that very soon.
Mr. Nehls. All right. One of today's hearing's purposes is
to discuss ways in which the Federal Government can better
support grade crossing elimination and safety efforts. Can you
explain how FRA has worked to make sure that the money is
easily accessible?
Mr. Bose. Yes, sir. FRA has an Office of Regional Outreach
and Project Delivery. We make sure that we go out into
communities, into States to make sure that they know that this
funding is available.
We know some smaller communities, smaller entities may have
problems, or may not have the technical expertise to apply. So,
we try to make sure they know what to do and provide them the
resources to do so. And again, we just try to get the word out,
and also encourage them to work with the host railroads.
Mr. Nehls. Yes. In your testimony, it says Texas--and I
think we lead the way in many things, but we also lead the way
as it relates to the number of blocked crossings, I think about
6,500 of them. About 21 percent of all the reported blocked
crossings took place in Texas. What are we doing wrong?
I think, Mr. Jefferies, you even you brought it up. What
are we doing wrong here in the great State of Texas?
Mr. Bose. Well, Mr. Chairman, it is going to take a
collective effort to improve on that in Texas. It involves FRA,
it involves the railroads, it involves the communities, law
enforcement and others, first responders.
In Texas, we try to take a can-do attitude and started in
Houston really rolling up our sleeves and tackling the
situation there. We are also focusing on Texas in terms of
auditing grade crossings there.
So, we have a whole program in places like Texas, also
Washington State and other places. So, we will definitely do
more.
Mr. Nehls. The entire panel, what recommendations do you
have for us to better improve the Grade Crossing Elimination
Grant Program?
Ms. Homendy?
Ms. Homendy. Well, one thing I would say, the program
itself, funding is key. I think we have to remember that States
are in need of funding, but also, we can't forget the need to
communicate with local communities.
In Mendon, Missouri--138 people is the population of
Mendon, Missouri. When we arrived on scene, I went to find
Farmer Mike, who was all over social media, talking about the
dangers of this crossing. This crossing was not identified as a
high-risk crossing because there weren't incidents at it
before. But it was well known by all the farmers as a dangerous
crossing. I think we have to remember how important
communication is.
Mr. Nehls. I agree.
Ms. Homendy. Because a lot of times they are not heard.
They need to be heard. Also, at some point, I would love to
talk about the years-long process and redtape that States and
local communities experience when it comes to fixing some of
these crossings.
Mr. Nehls. Mr. Jefferies, is $600 million enough?
Mr. Jefferies. I think when it comes to grade separations,
no amount of money is going to be enough.
Mr. Nehls. Yes.
Mr. Jefferies. The challenge is enormous. We are grateful,
and we are advocates for the program.
I associate myself with the Administrator's comments. I
think making sure communities are aware of the opportunities
out there, and vice versa, and getting that money put to work
quickly.
Mr. Nehls. Yes.
Mr. Jefferies. Put it to work quickly.
Mr. Nehls. Yes.
Mr. Jefferies. It takes years, upwards of 10 years, for
reviews before dollars go to the ground.
Mr. Nehls. Yes, yes. Thank you, thank you.
Ms. Homendy, I've got a question about FAA. The FAA
reauthorization expires here on March 8. We did a good job in
the House, it is over in the Senate. They are squabbling over
there, this and that. We extended it to March 8. How do you
feel about that?
And there shouldn't be any more extensions. Would you agree
with me on that?
Ms. Homendy. No extensions. There should not be any more
extensions on FAA. They need long-term, robust funding.
Mr. Nehls. Yes.
Ms. Homendy. Your support--we need an FAA reauthorization
bill, which, by the way, your bill also reauthorizes the NTSB.
So, thank you for that.
Mr. Nehls. Thank you. Thank you.
With that, I will now recognize Ranking Member Payne for 5
minutes.
Mr. Payne. Thank you, Mr. Chairman, and thank you for those
poignant questions. They are very important.
Chair Homendy, of the dozens and dozens of open
recommendations the NTSB has regarding rail safety, has there
been a common theme regarding worker fatigue and sickness?
Ms. Homendy. We have seen worker fatigue in past
investigations. We have called, for example, on the FRA to
implement a rulemaking on obstructive sleep apnea. It would be
screening, diagnosis, and treatment for obstructive sleep
apnea, which contributes significantly to fatigue and fatigued
workers.
Mr. Payne. OK. What are some of the recommendations the
Board has to address these problems?
Ms. Homendy. On fatigue?
Mr. Payne. Yes.
Ms. Homendy. In addition to the screening for obstructive
sleep apnea, we have also recommended that the railroads work
with the labor unions to develop, within the hours-of-service
rules, scientifically based scheduling.
Mr. Payne. And what has the response been from the
railroads?
Ms. Homendy. It varies among the railroads, but I would be
happy to get back to you on that. Some are still open.
Mr. Payne. Thank you.
Mr. Jefferies, in March 2023, you authored a letter to
Secretary Buttigieg stating the following: ``I am writing on
behalf of the freight rail industry to inform you that all
seven Class I railroads have agreed to join FRA's voluntary
Confidential Close Call Reporting System, as requested in your
February 27, 2023, letter to Class I CEOs.'' That did not
indicate a negotiation, that statement said that all seven
Class I railroads agreed to join the C3RS program as it stands,
full stop.
It has been 10\1/2\ months since you sent that letter, and
not even one of the Class I railroads has joined the program.
What is the holdup?
Mr. Jefferies. Thank you for that question, Ranking Member
Payne, and I can say that that commitment remains.
The Class I's stand by that commitment, and that is why I
sent a followup letter in August reiterating that commitment to
Secretary Buttigieg and making clear that railroads were ready
to sign up that day for a program that allows for reporting of
all unknown events and a frequency of reporting known events
with immunity from any sort of discipline that is significantly
more generous from that which exists in the FAA program, which
I believe is considered the model program.
At the same time, railroads do all have existing programs
that allow employees to report concerns confidentially, and
many have shifted away from a discipline-based approach
paradigm to a coaching-based paradigm.
So, the commitment stands. We have had several meetings
with the FRA and our union counterparts. Unfortunately, the
January meeting, I believe, the FRA had to cancel. But we look
forward to getting this across the finish line. I know it has
taken a long time, but the commitment still stands.
Mr. Payne. Well, I appreciate that, but we really need to
see some movement. It's good to hear that everybody is ready
and willing to go, but if there is no implementation, then the
words just kind of fall on deaf ears.
I understood that answer to mean that the Class I railroads
are reneging on the statement you made in your letter now that
the Norfolk Southern derailment in East Palestine is far enough
in the rearview mirror.
And I will yield back. Hopefully, there might be an
opportunity for a second round.
Mr. Jefferies. OK. I would make clear we are absolutely not
reneging on that commitment.
Mr. Payne. OK, we shall see.
Mr. Nehls. The gentleman yields.
Just information for this committee, Ms. Homendy, I think
you have got a dead stop time at 12:15. Is that about right?
Just let Members know.
Ms. Homendy. I think we--yes.
Mr. Nehls. OK.
Ms. Homendy. We have a----
Mr. Nehls [interposing]. Fair enough.
Ms. Homendy. Yes.
Mr. Nehls. Just so we are aware. OK, I will recognize the
ranking member of the full committee, Mr. Larsen, for 5
minutes.
Mr. Larsen of Washington. Yes, thank you, Mr. Chair. Thanks
to the panel.
First for the Chair of the NTSB, do you have an update on
the timeline--first off, I want to apologize to the people of
East Palestine for mispronouncing their town. I sincerely want
to apologize for that.
And second, do you have an update for us on the timeline to
complete the NTSB report for the derailment?
Ms. Homendy. Yes. I anticipate that the Board will be
together to discuss the final investigative report late spring,
early summer.
Mr. Larsen of Washington. OK. Normally these reports take
about a year, and that's going to be a little longer than a
year.
Ms. Homendy. They actually take 2 years, and it will be a
year and just a couple of months.
Mr. Larsen of Washington. OK, all right, thanks. That's
important----
Ms. Homendy [interrupting]. May I just add?
Mr. Larsen of Washington. Please.
Ms. Homendy. This was a very complex investigation with a
lot of complex information. Plus we had a 2-day hearing in June
which revealed other information that we wanted to dig in on.
So, it does take some time to get to the right answers just so
that we get to the right solutions.
Mr. Larsen of Washington. All right, thanks.
There are dozens of outstanding rail safety recommendations
that haven't been addressed or adequately acted upon. I don't
want you to list all of them because you listed them in the
hundreds. But are there some priorities for Congress when it
comes to rail safety?
Ms. Homendy. It is always hard for the NTSB to pick
priorities, because every investigation is critical, and every
one of our recommendations is critical. So, it's tough for me
to put one over the other.
But an area that you could look into are our
recommendations for emergency responders, ensuring that they
have the information that they need and appropriate training to
respond to accidents and incidents.
DOT 111 tank cars, phasing them out of high-hazard
materials service, including flammable gases.
A look at having a change in the regulation on how you
define a high-hazard flammable train.
Safety management systems. The risk reduction program that
the committee put together--and I will be honest, I was on the
committee at the time--is different than SMS in some of the
other modes of transportation where aviation has been extremely
successful. That might be something we want to look at:
applying that SMS model from aviation to our railroads.
Mr. Larsen of Washington. Thank you.
Administrator Bose, from an FRA perspective, can you
describe your views on why it is difficult to get this Close
Call Reporting requirement agreement actually implemented?
And I will ask Mr. Jefferies to respond to the same.
Mr. Bose. Thank you for the question, Mr. Ranking Member.
C3RS is a voluntary program that enables railroads and
their employees to improve the safety culture of their
organizations through proactive identification of safety
hazards before accidents occur. I know we have been engaged in
talking with AAR, also with individual railroad companies. I am
confident we can have a breakthrough to have the first Class I
railroad be a part of the program. We have over 30,000 railroad
employees covered right now, whether it is through short line
railroads, commuter railroads, or Amtrak. We just need Class I
railroads to join an existing program, not to change the
program completely to bend to a new program. We have an
existing program that's worked, that has been recognized by
GAO. We hope and we encourage folks to join that.
Mr. Larsen of Washington. Yes. Mr. Jefferies, do you have
any response to my question?
Mr. Jefferies. On C3RS?
Mr. Larsen of Washington. Yes, that's right.
Mr. Jefferies. Well, again, the commitment is there. We
want a program that works, that is pro-safety at the end of the
day. And I have laid out a number of options we think are
objective improvements to the program, and those conversations
continue.
Mr. Larsen of Washington. Would--so just--I am not trying
to get into an argument, I am trying to figure this out,
because this happens in the----
Mr. Jefferies [interposing]. Right.
Mr. Larsen of Washington [continuing]. Airline industry,
where they have a system like this. It's probably not exactly
the same one, but it is one. It's one system, it's not----
Mr. Jefferies [interposing]. Right.
Mr. Larsen of Washington [continuing]. One for one set of
railroads and another system for another set of railroads, or
one set of airlines and one for another set of airlines. It is
one system.
Mr. Jefferies. There are----
Mr. Larsen of Washington [interrupting]. So, what is wrong
with that approach, from your perspective.?
Mr. Jefferies. Well, I think that you hit the nail on the
head. What we are suggesting is something that's modeled
precisely on the FAA program that includes unlimited use of
unknown events, and then allows for any risk of immunity for a
known event once every 5 years. We have suggested once every 3
years, so, it's even more lenient than the FAA program.
Mr. Larsen of Washington. Yes, well, I have got some
followup questions because it's still a matter of creating one
system.
So, you are suggesting to create one system, but then make
everyone else change to what you want, as opposed to the Class
I's moving----
Mr. Jefferies [interrupting]. I would suggest those who are
in the program have also suggested changes are necessary.
Mr. Larsen of Washington. You are suggesting that. Have
they?
Mr. Jefferies. Yes.
[Laughter.]
Mr. Larsen of Washington. It is probably their job to say
that, not your job, just as I----
Mr. Jefferies [interrupting]. Right, exactly. So, I don't
want to put words in other people's mouths.
Mr. Larsen of Washington. No, that is Congress' job.
[Laughter.]
Mr. Larsen of Washington. Thanks so much, and I will yield
back.
Mr. Nehls. The gentleman yields. I now recognize Mr. Babin
for 5 minutes.
Dr. Babin. Thank you, Mr. Chairman. I appreciate it, and
thank you, witnesses, for being here.
I represent the 36th Congressional District in the State of
Texas and the Port of Houston. We have more petrochemical
refining facilities than just about anywhere else in the entire
country. And we have to have trains and trucks that run on time
to get our materials there. The Port of Houston is the largest
port for waterborne tonnage.
Administrator Bose, the first question for you, it seems
like we should be able to inspect train brake systems with
technology while a train is underway, in motion, versus having
to stop train traffic mid-journey, have someone walk around the
train using only a visual to spot potential problems, while
slowing it down and overall freight and supply chain problems
resulting.
Can you give me the anticipated timeline for FRA approval
of a pending waiver expansion petition on the brake health
effectiveness technology which has already been reviewed by
FRA's Safety Board?
Mr. Bose. Congressman, thank you for that question about
the brake health effectiveness waiver that BNSF, number one,
already has, a brake health effectiveness waiver. They are
seeking to expand that area that that waiver covers that they
already have. That petition is pending right now at the Federal
Railroad Administration.
The waivers are discretionary at FRA. The railroad is
asking to deviate from FRA safety regulations. We will review
that in the due course under our safety regulations, and make
sure it meets the highest levels of safety.
I will tell you also, Congressman, our innovation
principles that we have laid out requested that any time there
is a technology request in the waiver process, that there is
consultation with the workers that will use them and the
workers on which that technology will rely.
Dr. Babin. Thank you.
And also, Chairwoman Homendy, I know you answered some
questions already about East Palestine, but I want to talk
about grade crossings. What trendings--and you have mentioned
some of them already--has the NTSB seen in transportation
incidents and accidents at these grade crossings?
And can you give me some of y'all's recommendations
specific to those grade crossings?
And how can States best prioritize resources to address the
problem, as well?
Ms. Homendy. Yes, some of the trends we have seen are the
need for grade separation at high-risk locations, improved
signage and warning, support and work between the States and
Operation Lifesaver, which is important. They do a lot to
educate drivers to safely navigate grade crossings. So, the
support for them is critical. That actually comes from an NTSB
recommendation. High-profile crossings, to make sure that--hump
crossings--cars don't get stuck on the crossings. So, that has
to be addressed.
And as far as local resources, it is critical, again, that
there is communication between States and local communities. We
cannot forget the input of local communities because if we are
only relying on data--data is key, but you also need to talk
with the local communities, because you may not have had any
sort of incidents in the past, but have a well known problem.
And making sure that local communities understand what
resources are available and that there is assistance by all the
players.
Dr. Babin. OK, thank you.
And then, Administrator Bose, one more question for you.
One program that improves safety and modernizes the rail
network that you discussed, the program is CRISI--is it CRISI,
is that the way you pronounce it?--the Consolidated Rail
Infrastructure and Safety Improvements Program to help short
line railroads repair and rehabilitate worn-out track and rail
infrastructure, a leading cause of derailments on short lines.
But these grants go toward passenger rails, it seems like, more
frequently, like the $200 million in CRISI funds that FRA
awarded to the California high-speed rail project last year.
And I understand that in a few weeks, your agency will
release the funding notice for the next tranche of funds, $2.4
billion, and many eligible railroads like short lines will have
to compete for those funds. I am very concerned that, with that
much funding available just a few months before an election,
the administration may favor just a handful of glitzy passenger
rail projects.
Safety should absolutely come first. So, can you please
give your commitment that FRA will take the proper amount of
time to fairly review the many competitive short line projects
that will apply in the next CRISI funding cycle, and not rush
this money out the door to a handful of headline-grabbing
passenger rail projects on the eve of our election?
Mr. Bose. Thank you for the question, Congressman. The
Consolidated Rail Infrastructure and Safety Improvements
Program is an absolute cornerstone of FRA's funding programs.
We know that the short line railroads benefit from that
program. That's why in the last round of funding, we awarded
over 50 percent of the funding to the short line railroads. And
you absolutely have my commitment that we will give fair and
due consideration to short line applications.
I will just note, when you talked about passenger rail
projects, the passenger rail projects that we selected, such as
the gulf coast--you mentioned California--those actually are
our overshared railways, or they are separating freight from
passenger rail. So, there is a freight rail component to those
projects. So, I just wanted to note that.
But I take your point, and we definitely want to use CRISI
as much as possible, and we hope we can get even more funding
from the authorized levels.
Mr. Nehls. The gentleman's time has expired.
Dr. Babin. Sorry about that.
Mr. Nehls. Thank you. I now recognize Mr. Moulton for 5
minutes.
Mr. Moulton. Thank you very much, Mr. Chairman, for holding
this important hearing.
I might be the only member of this committee who has worked
for a Class I railroad. I worked for Burlington Northern Santa
Fe back in college, back when it was called a railroad, and not
a stock ticker symbol. But I won't digress further into the
implications of that aside. I keep in close touch with my
connections in the industry.
Now, Norfolk Southern's East Palestine derailment has
thrown freight rail safety into the public eye in a way that
has rarely been seen before. But we can't lose the forest for
the trees here. Railroads are still the safest form of
transportation in the United States, and the vast majority of
derailments happen in rail yards, not on main lines. In 2023,
there were 22,543 hazardous material incidents on highways;
22,543 compared to 297 hazmat incidents on the railroads. Since
2012, there have been zero railway deaths with hazardous
materials, while there have been 82 fatalities from hazmat
accidents on highways.
I have been working across the aisle on rail safety
measures and, like any regulations, our goal is to lower
accidents while simultaneously encouraging transit by rail.
Because if we were to do the opposite, if we were to clamp down
so hard on railroads that we push a lot of traffic to trucks,
safety will get worse. And that's something that everyone on
this committee needs to understand.
Now, Precision Scheduled Railroading, or PSR, has come into
the spotlight in recent years as well, because it has created
trains that regularly exceed 2 or 3 miles in length, while just
a decade ago, it was standard industry practice not to exceed
around 7,500 feet. The National Academy is conducting a study
on long trains to be published later this year.
But Mr. Bose, understanding that additional action might
come out of this report, what is FRA doing in the meantime to
focus on the safe operation of such long trains?
Mr. Bose. Thank you for the question, Congressman.
First, I want to lead off with this fact that a lot of
people ask me: there is no regulation on the length of trains
in this country, period.
So, why is----
Mr. Moulton [interrupting]. Well, we might be changing
that, so----
Mr. Bose [interrupting]. There are multiple reasons,
Congressman, and I appreciate your question there.
Believe it or not, until I came to the FRA, FRA was not
collecting data on the length of trains. That should be just a
commonsense information-gathering that FRA should have been
doing for years. We've changed that.
Also, we are going to gather more information about long
trains on a broader basis. We are working cooperatively with
the National Academy of Sciences on their study. We also have
our own study that we are hoping to complete by springtime that
has been underway for years that we are hoping to wrap up.
But I am encouraged and would be willing to work with
anyone in Congress who is looking at the issue in a thoughtful
manner.
Mr. Moulton. I am also very interested in wayside
detection. There has been a lot of talk about increasing the
number of hotbox detectors or reducing the spacing of them as a
result of the East Palestine disaster. But of course, this is a
1960s technology.
Back in the 1960s, a lot of railroads were still
communicating by telegraph. If one of the conclusions of the
report on East Palestine is that we didn't have good
communication with the local community, as some people have
said, I don't think we would be encouraging railroads to
install more telegraphs, right?
So, what we really have here is actually an opportunity to
look at the next generation of monitoring technologies. There
are all sorts of interesting technologies out there: acoustic
monitoring, fiber optic, lidar, and a lot of onboard sensing
technologies. I mean, half of us are walking around with
onboard sensing technologies on our wrists just to measure our
health. It's not an unreasonable expectation to expect that we
might have those kinds of monitoring systems on railcars, which
would not only be beneficial for safety, but would give real-
time data to railroads and car owners, maintainers, and
literally, the engineers running the trains themselves. In
fact, that is why several railroads have already started
adopting some of this technology.
So, I think it would be a huge mistake, Mr. Chairman, for
the Congress to come down and mandate that we double down on
the 1960s technologies when there is much better technology out
there that we might help push the industry towards.
Mr. Jefferies, how are railroads starting to implement some
of this next generation technology?
Mr. Jefferies. Well, Congressman, thank you for that
question, and you hit the nail on the head.
And one, that is within our recommendations, because it has
often been noted that there is not a Federal nexus with wayside
detection right now, and we want to make sure that any sort of
Federal action around wayside detection doesn't lock us into
today's--or worse yet, yesterday's--technology. We have got to
have open-ended, innovative supporting regulations because
you're right, the future is not hotbox detectors of yesterday
or today. The future is not even acoustic bearing detectors,
which are a great leap forward. The future is, potentially,
onboard sensors, continuous sensing. The future is autonomous
detection.
And so, we have to make sure, collectively, any sort of
policy structured around this allows for that consistent
innovation with an ever-improving safety outcome.
Mr. Moulton. Great. Thank you, Mr. Chairman. I yield back.
Mr. Nehls. The gentleman yields. I now recognize Mr. Rouzer
for 5 minutes.
Mr. Rouzer. Thank you, Mr. Chairman.
Mr. Administrator, I understand your agency may soon unveil
a new rule requiring railroads to have two crewmembers
operating a train. Is that true?
Mr. Bose. That's true.
Mr. Rouzer. Even if they can safely operate the train with
one person?
Mr. Bose. Congressman, it's a pending rulemaking right now.
We have had a lot of comments, and we will address the point
that you made.
Mr. Rouzer. Well, I would just note that it would be the
first time in the nearly 200-year history of railroading in the
country where there has been a Federal rule on the number of
people needed to operate a train. If it goes forward, hundreds
of small, short line freight railroads will need to make
artificial and inefficient economic and management decisions.
They will be forced to put their limited resources towards
hiring people they don't need instead of capital improvements.
And obviously, this is a particularly acute issue for your
small short line rails.
I want to also underscore----
Mr. Jefferies [interrupting]. Congressman?
Mr. Rouzer. Yes, sir. Were you going to say something? Yes.
Mr. Jefferies. I know the Administrator is constrained with
what he can say. I fortunately am not. I can say unequivocally,
we don't believe there is any objective data to support this
rule. There wasn't in 2016. The administration said as much
then. There wasn't when it was withdrawn in 2019. There is not
today. This is a political gift made on the campaign trail in
2020, and that is a fact, and we will fight this rule hard.
Mr. Rouzer. Thank you for your comment there.
I also want to underscore the point that my colleague, Mr.
Babin, was stressing as it related to short line rail. The
CRISI program is incredibly important. And to have those funds
directed to my friend from California, Mr. LaMalfa's favorite
project in California--which, actually, I have been out there
to see, it looks more like a shelter for homeless than it does
high-speed rail, quite honestly, just absolute, complete
disaster--it's important, very important for those CRISI grants
to go towards their intended purpose, not so much passenger
rail that may or may not be in the best interest of the
taxpayers of a particular State.
I will let Mr. LaMalfa comment more on that, but Ms.
Homendy, a question for you.
The traffic incidents at rail crossings, is there a
correlation with substance abuse there, increased substance
abuse?
And particularly, I am kind of wondering if, in those
States that have legalized marijuana, have you seen an uptick
in those types of issues there?
Ms. Homendy. We have not tracked trends with respect to
substance use and grade crossing collisions. However, we have
investigated grade crossing collisions where there have been
impaired individuals.
Impairment is a big problem right now on our roads. We have
over 10,000 people dying annually on our roads due just to
alcohol impairment.
When it comes to substance use beyond alcohol, frankly, we
don't have a way to test people, and there is no
standardization on testing among States on that. So, we are
behind the curve on that, and it's a growing problem.
Mr. Rouzer. Yes, I would be curious to see if there are any
studies.
Does anybody else have any comment on that, substance abuse
as it relates to fatalities, injuries?
Mr. Jefferies. I can speak from it more broadly. We have
Federal drug rules that we follow closely and drug regulations
regarding substance use because we are an inherently risky
industry. And I can just tell you, from the employee
standpoint, in those States where marijuana has been legalized,
we wash out half of our potential employee base before we even
get to day two when we talk about the fact that we rigorously
drug test.
And so, Chair Homendy referenced the accidents involving
being impaired, but as far as potential employee base, it's an
issue. It's a real issue for us.
Mr. Rouzer. Yes, it's a real issue across the board for
every employer.
With that, I yield back.
Mr. Nehls. The gentleman yields. I now recognize Mr. Carson
for 5 minutes.
Mr. Carson. Thank you, Chairman.
I am very concerned about the worsening problems of blocked
rail crossings from longer and longer freight trains,
especially in places like downtown Indy, where major
intersections have been blocked, literally, for hours. This is
a serious safety problem, blocking emergency vehicles, even
endangering lives, and it also hurts our supply chains, quite
frankly, especially trucks that get stuck at these blocked
crossings.
Beyond some of the new resources in the infrastructure
bill, I think there needs to be more statutory authority to
address this problem, like provisions passed by this committee
in the INVEST Act, which is why, quite frankly, we are working
on reintroducing the Blocked Rail Crossings Safety Improvement
Act to codify the committee-passed provisions.
I am curious. Do you all think that these kinds of
statutory changes would improve safety and passenger rail
services related to on-time performances?
And secondly, what more can our committee do to address
this issue with the kind of specificity necessary?
Mr. Bose. Congressman, thank you for that question. I know
it had multiple parts, so, if I don't answer every part, please
bear with me.
When you talk about blocked crossings specifically, I think
that this is a good time to reflect on long trains, and the
size of trains that are growing, and the amount of time that
those trains occupy a grade crossing. That's one thing to keep
in mind.
Just as I said about regulation or a law about the train
length, there is no law on the books about blocked crossings.
So, I would just say please keep that in mind.
When it comes to blocked crossings, we, in our safety
advisory on train length, which we issued, brought up the fact
that train length can affect crossings. So, again, there are
linkages between the two.
Another linkage there is we have seen that when there are
multiple crewmembers on a train and there is a blocked
crossing, that having more than one crewmember could be helpful
in that situation to unblock that blocked crossing.
So, again, all these things can work together, Congressman,
but blocked crossings is an issue that I hear from Members all
over the country about on a continuous basis.
And members of this committee, having said that, in terms
of things that could be done, FRA will roll up our sleeves
community by community, using the tools that we have available,
whether it's talking to the railroads directly--in several
cases, such as Hammond, Indiana, I talked to CEO Alan Shaw
specifically, and told him my expectations. Back then, UP CEO
Jim Vena, I told him about my expectations about the east end
of Houston and blocked crossings there, and it was CEO Lance
Fritz.
But I am happy for FRA to play a role under our authorities
right now, and we will work with Congress and with the
railroads and communities to do what we can to not have blocked
crossings.
Mr. Jefferies. Congressman, on----
Mr. Carson [interposing]. Yes, sir.
Mr. Jefferies. Just--you asked the panel--on train length,
just to clarify, median train length in 2022 was about 5,200
feet long, 90 percent of trains were less than 7,500 feet long.
And I think we need to also think about commodity mix. When
we have seen the significant decline in coal traffic, which has
significantly shorter cars, and an increase in intermodal
traffic, intermodal cars are significantly longer. So, a 100-
car intermodal train is going to be significantly longer than a
100-car coal train. And let's remember, intermodal trains are
taking trucks off the highway themselves.
All that being said, it does no one any good to have a
train sitting still. It doesn't help our communities we operate
in, it doesn't help our customers. So, the goal is to have a
safe, fluid network, and that is why we think it does take
communities, it takes railroads looking at a myriad number of
tools.
The Administrator of the FRA has played a positive role in
this. He talked about a few examples where we have seen
progress, and we have got to keep chipping away at these high-
impact crossings and look for ways to improve that, because we
need to be good public partners. And having a train stopping in
the middle of a community, that's no way to achieve that.
Mr. Carson. Yes, sir.
Yes, sir.
Mr. Smith. Congressman, I looked at the data for Indiana,
our last full year of reporting up 49 percent in complaints for
blocked crossings year over year. It is absolutely a problem. I
think we understand and realize that, as has been mentioned,
the safety benefit of getting as much freight onto the rail
corridors is important, but we have to find common ground and
try and solve this problem.
Mr. Carson. Yes, sir. Thank you. Thank you all.
I yield.
Mr. Nehls. The gentleman yields. I now recognize Mr.
LaMalfa for 5 minutes.
Mr. LaMalfa. Thank you, Mr. Chairman.
Mr. Jefferies, you had a statistic a while ago. Would you
repeat that? I didn't quite catch it. It said something about
80 percent of crossings with devices had issues. Can you
recount that statistic?
Mr. Jefferies. In my opening, I believe it was, there has
been a 60-percent increase in crossings with active devices
since 2005.
Mr. LaMalfa. So, what you are saying----
Mr. Jefferies [interrupting]. I need to fact-check myself,
but I believe----
Mr. LaMalfa [continuing]. Is that where you have the arms
and the lights and the whole works there, there is still an
increase of people driving around them, or running through
them, or what have you, and running into trains?
Mr. Jefferies. Unfortunately, yes. The vast majority of
grade crossing incidents are due to risky driver behavior,
trying to beat a train before it gets to a crossing.
Mr. LaMalfa. Even with lights and arms, huh?
Mr. Jefferies. Even with lights and arms. There is some
horrific footage out there, unfortunately.
Mr. LaMalfa. OK. So, at what point do we talk about
responsibility of drivers, not closing more crossings or
building more split grade crossings?
At what point do we talk about the responsibility of
drivers to not do stupid things?
I mean, how much emphasis is there on driver training or,
you know, when you get a speeding ticket and you have to go do
driver's school, stuff like that?
I am talking about this subject because what I hear on this
panel is, like, well, the safest grade crossing is no grade
crossing. Well, I represent a very rural area, and there is one
hell of a lot of at-grade crossings that can't afford to be
made into, as the fellow from Indiana said, a $40 million
overcrossing. The $3 billion grant that is being talked about
here, if that was devoted all to $40 million overgrade
crossings, you could build 75 in this country with that grant.
I also note at the same time there has been $3 billion more
approved for California's high-speed rail boondoggle, a failed
project, and another $3 billion for the ``Gambler's Special''
from Las Vegas to Los Angeles. So, I guess they are looking at
these deals as important as this grade crossing concern.
But that all said, for rural areas, and especially--example
for the high-speed rail running through central California
there--cutting farmers and ranchers and people off where this
rail has to be so dedicated, so fenced off, now a farmer,
pulling his tractor with a wide disc down the road, or moving
his combine or whatever, moving cattle, now has to go extra
miles around to get to another crossing there because this has
cut them off, and you are going to see many, many examples of
that.
So, the Secretary is talking about Farmer Mike saying,
well, we don't like this crossing. Well, I know a lot of Farmer
Bobs that are saying if you take this crossing away from us,
then I've got to move my equipment and everything I do, all my
harvested crop has to go extra miles around because you guys
closed the crossing, all in the idea of everything being
safety. Well, I guess we want the world in a big plastic
bubble, don't we? Because we have to--let's fill in all the
swimming pools. Somebody might drown. And let's just stay in
bed. Don't get out and go outside in the morning.
We were looking at a proverb this morning that said,
``Where no oxen are, the trough is clean,'' all right, ``but
increase comes by the strength of an ox.'' So, I guess that
locomotive could be seen as the ox. The locomotive needs to
move, but so does the trucker, so does the tractor, so does the
farmer. And people just in small communities that can't rely on
Government grants coming from DC from yet another freaking big
trillion-dollar project coming out of DC, an Inflation
Reduction Act that's going to provide grant money for all this
stuff. It's not going to happen with the amount of at-grade
crossings you are talking about eliminating.
Most of this panel said less at-grade crossings the better.
Well, there is somewhat of a balance here. If you live in a
city where there is a high-traffic road, the city of Redding, I
think, only has one of them in northern California, and they
have many others that are at-grade. You want to shut them all
down? You want to paralyze the town, in addition to these rural
areas?
So, I don't hear a whole lot of balance in talking about
who is fighting for--are you listening in the communities for
people that don't want their at-grade crossings taken out?
Maybe they can be improved with the approach. Maybe they can
improve with the bigger lights and bigger arms or things like
that.
Mr. Bose, would you touch on that, please?
Mr. Bose. Congressman, we care about rural areas in
multiple ways. We want to work with places. Let me just give
you an example.
The Mendon tragedy that Chair Homendy talked about, it was
in Missouri. It was in a rural area. It was a hump crossing.
There were visibility obstacles in that investigation that they
found. So, there is mitigation and ways to improve that----
Mr. LaMalfa [interrupting]. Did it have the lights?
Mr. Bose. I am sorry?
Mr. LaMalfa. Did it have gates and lights?
Mr. Bose. No. And then can I just make one more point?
Mr. LaMalfa. Sure.
Mr. Bose. At FRA, we also looked at drivers manuals of all
50 States, and whether they mention grade crossing safety or
not, and there is a deficiency in the number of drivers manuals
across the country, and also commercial driver's license
requirements.
Ms. Homendy. I know you are out of time. Can I comment on
this? This is a really important point.
When we were in Mendon, Missouri, and I sat in a barn with
the farmer who was out there, they are split by the rail. And
in this situation, the farmers all knew that this was a
dangerous crossing. It wasn't just a humped crossing. It is
literally like this [gesturing].
And what would happen is, they would have to stop at the
stop sign that was down a hill. Try getting a combine up that,
or any dump truck. What would happen is--and the farmer would
tell us--he would start approaching the crossing. Most people
knew that you would have to just rev the engine and go through
the stop sign, and then get up the hill. And then, because of
the angle of the crossing, he would have to literally stand up
in the combine to look to see if he could see the train,
because it was a passive crossing, and then get across it.
Closing crossings is not the only solution. There are so
many other things we can do. In this one, change the design or
the profile of the crossing to allow others to cross it safely,
not putting them in such a dangerous position. So, there are
lots of great things we can do to improve great crossing safety
in your rural communities.
Mr. LaMalfa. Well, as long as you are not taking it away. I
would love to see--I have one like that in Yuba County. You
could do a great ``Dukes of Hazzard'' over that baby if you
want to.
Ms. Homendy. Yes.
Mr. LaMalfa. So, the approach could be made, but still keep
the crossing. And if that's what you are talking about, then I
can get behind more of that. But if I hear a whole lot of
blanket ``close down the crossings''--yes, a crossing is not
being blocked if it doesn't exist anymore. So, this will really
mess up rural America if what I hear on this panel is so much
more enthusiasm for closing.
Thank you, Mr. Chairman. I yield.
Ms. Homendy. Well, and I know you just yielded, but that's
why I think it is very important that the States and the
Federal Government sit down with local communities to
understand what they need.
Mr. Nehls. Thank you. Thank you. I now recognize Mrs.
Foushee for 5 minutes.
Mrs. Foushee. Thank you, Mr. Chairman, and thank you to the
witnesses for being here this morning.
It has been almost a whole year since the Norfolk Southern
train derailment in East Palestine, Ohio. And I am glad to
finally have the opportunity to address rail safety concerns.
My home State of North Carolina is no stranger to train
derailments and crashes, averaging about 32 annually, including
one that happened in my district just last week. Thankfully,
everyone walked away safely. This is why I am thankful for the
Biden administration and the Bipartisan Infrastructure Law that
made historic investments in rail safety, investing nearly $3
billion to reduce grade crossing incidents. My questions today
are for Chair Homendy.
In the investigation into the Norfolk Southern derailment
in East Palestine, the NTSB found that 23 percent of the cars
that did not derail had reportable defects. Are freight
railroads knowingly dispatching trains that have defects, or do
the yard workers not have enough time to perform full
inspections?
Ms. Homendy. This is something we are looking at as part of
our investigation. But what I will say is I don't believe
freight railroads are knowingly releasing trains or putting
together trains that are in violation of Federal regulations.
Mrs. Foushee. Thank you for that, that's good to hear.
Despite the Association of American Railroads'
recommendation that trains stop when a trackside detector
determines a wheel is 95 degrees above ambient temperature,
Norfolk Southern's policy was not to do so until the
temperature exceeded 115 degrees above ambient. Are there any
Federal requirements that govern wheel monitoring while the
train is en route?
Mr. Bose. Congresswoman, there are none, and I want to
point out a couple of things, though.
The operating rules of the particular railroad do apply.
And if those are violated, FRA can take enforcement action. I
don't want to talk about an ongoing investigation at FRA, but
that is a possibility.
What you also point out in terms of new technology, which
we encourage, what you point out is a good point. Also, it's
not just about having the technology, it's about what they
measure and whether actions are taken based on the information.
We also know that when it came to the detectors, that
Norfolk Southern had one person--one person--monitoring their
system when it came to hot bearing detectors. Again, it's great
to have the technology, but do they also have people to
implement it and act on it when deficiencies are found?
Mrs. Foushee. Do each of the railroads have their own
policies on what temperature above ambient that the wheel needs
to be before advising to stop a train and inspect?
Mr. Bose. I welcome others to weigh in here, but they do.
They do. Now, some of them are consistent, but some of them
have different--we do not regulate that.
Mr. Jefferies. Congresswoman?
Mrs. Foushee. Chair Homendy, would you--Mr. Jefferies.
Mr. Jefferies. I can tell you the industry has adopted
standards, as you referenced, and over this year, has adopted a
new absolute temperature threshold for when to pull a train out
of service, moving from 200 down to 170 degrees as of July 1.
We have also analyzed over 150 different trending
algorithms to establish a new trending rule for when to pull
out of service, as well. My point being that, as we learn from
incidents when they occur, we are taking action to reduce the
likelihood of an incident occurring again, and we are not
resting on our laurels. We will continue to take those steps as
we learn more.
Mr. Bose. And to add to that, Congresswoman, that's
absolutely true. There are corrective actions already in place
or underway. The things that I was mentioning were the
situation at the time that have come to light.
Ms. Homendy. And if you don't mind me adding----
Mrs. Foushee [interposing]. Sure.
Ms. Homendy. That is the advantage of the NTSB process. We
bring the regulator and the railroad and the unions into our
investigation, so that they are finding out in real time what
we are finding out from the evidence, so that they can take
action. We don't have to wait for a rulemaking. AAR was able to
adopt standards very quickly, and I think that's a success when
they are able to do that.
Mrs. Foushee. Thank you, Mr. Chair. I yield back the
balance.
Mr. Nehls. The gentlelady yields. I now recognize Mr.
Westerman for 5 minutes.
Mr. Westerman. Thank you, Chairman. Thank you to the
witnesses for being here today, and I wanted to go back to a
question that Dr. Babin brought up, and maybe--or hopefully,
get a little bit more explanation on that, talking about brake
health effectiveness.
And my understanding is that it's 10 times more effective
than a walking visual inspection at an intermediate stop to
find brake defects on a train, and I also understand that the
unions and the rail management are jointly supportive of a
waiver for that.
So, Mr. Bose, can you tell me why this issue has been
pending for so long? What is the holdup on getting this waiver
approved?
Mr. Bose. Congressman, I will just repeat myself a little
bit of what I said earlier. There are brake health
effectiveness waivers already in effect. So, they are in use.
There is a request to expand the area of the waiver. It is
pending.
I will say that there were multiple comments. It wasn't
just one comment, or there were a few comments. So, FRA will
review that.
Now, I can't get into this because I will be the appealing
official if that waiver is hypothetically not approved and
challenged. So, I have to just be a little cautious in how much
I get into it.
At FRA, we believe strongly in technology and visual
inspections working together. We endorse that. It should not be
one at the expense of another.
Mr. Jefferies. Congressman, could I provide a little
context on that, as well?
Mr. Westerman. Yes, I was going to come to you next. Go
right ahead.
Mr. Jefferies. So, actually, we think this is a win-win for
everybody. You are using wayside technology to dramatically
increase the effectiveness of brake health inspections and
working with the Brotherhood of Railway Carmen, who are the
affected union who typically does those manual inspections.
We have developed data that demonstrates that using
technology identifies significantly more defects, and thus it
allows technology to do what it does best, which is detect
potential flaws in the system, and then allows our employees to
do what they do best, which is fix those flaws. And so, they
get to focus on their areas of expertise, technology does what
it does best, and that's why the BRC, both last year and just
last week, wrote in support of this waiver request. We are
hopeful that the administration approves it.
As Mr. Bose said, there is a similar existing waiver, and
the data speaks for itself on that. This would expand that. And
it's models like these--we get it, we need to get union buy-in.
The administration has been very clear. And successfully doing
that in this case, we think, is a model for how we can all work
together to advance technology and, more importantly, advance
safety.
Mr. Westerman. Yes, and when it comes to safety, I think
that should be the top priority. And if people want to buy into
safety, that's a good thing, too. But at the end of the day,
you have got to look at the data and the technology, and go
with safety over other things.
But in this particular instance, it appears that if you are
detecting--early detection of a potential brake failure
actually provides more labor to go in and fix the problem
before it turns into a problem, or fix the issue before it
turns into a problem. So, I don't see where it would hurt
people's employment to be able to detect this. And plus, you
get the absolutely best benefit of having safer trains.
Mr. Jefferies. We are very hopeful that this is allowed to
proceed in the manner requested.
In its letter last week, the union also suggested it might
be a way to increase fluidity at the border to allow technology
to do required brake inspections at the border, as well, so
trains aren't sitting, idling for extended periods of time.
They can move through, be autonomously inspected, and then the
work can be done in the yard.
So, it's opportunities like this. They abound in the
industry, and we want to take advantage of them wherever we
can, because the safety case is strong.
Mr. Westerman. And there is a lot of other benefits of
technology that it looks like the railroad industry is catching
up with a lot of manufacturing by implementing this continuous
improvement technology and monitoring, which--not much time,
Mr. Jefferies, but I know the administration is pushing for
autonomous vehicles, yet they maintain you need two people to
operate a train which is operating on a secure right-of-way. Do
you want to talk about that?
Mr. Jefferies. The irony is not lost on us in the least
there. We actually think we should be the test bed for
autonomous innovation, given we operate in a largely closed
network on a fixed guideway.
Crew staffing has always been an issue for unions and
railroads in collective bargaining. That's where it should
stay. We don't believe there is any objective data that
supports a mandate in perpetuity for where individuals should
be located, and think it should be left for unions and their
employees to determine because we have heard loud and clear
from our unions that quality of life and work-life balance are
one of their number-one priorities.
And so, if there are ways we can help address that by
making sure people work more regular shifts, go sleep in their
own bed every night while maximizing safety, we should
absolutely take advantage of those opportunities. And so, this
would stifle the ability to continue to work towards that goal.
Mr. Westerman. Thank you, and I yield back.
Mr. Nehls. The gentleman's time has expired. Thank you.
Mrs. Napolitano, you have 5 minutes.
Mrs. Napolitano. Thank you, Mr. Chair.
Administrator Bose, Chairwoman Homendy, and Mr. Jefferies,
it is good to see you again. Thank you for providing your
expertise to the committee.
You are all well aware of my strong advocacy for grade
crossing safety and grade separation projects based on my
needs. My district has added grade crossing safety improvements
to 55 crossings. We have separated 30 crossings on the Alameda
Corridor-East and surrounding rail lines. We did much of the
work prior to the increase in the Federal investment in grade
crossing safety, including the FAST Act and the BIL.
Funding grade crossing is important, but I have personal
experience knowing that just as important is effective
coordination between Government agencies building the project
and the private railroads where they exist. Too many times,
fully funded projects have been delayed by railroads not
providing logistical, engineering, and staff support in a
timely manner.
We have had times where Federal and State grants were about
to lapse because of railroad delays in approving engineering
plans. Administrator Bose is very familiar with one of my
projects in Pomona that built an adjacent rail line in order to
close two heavily trafficked crossings, but the new rail line
was delayed becoming operational for 2 years due to
disagreement between railroad and pipeline companies.
Mr. Bose, Mr. Jefferies, and Mr. Smith, how are the
railroad--and briefly, please--how are the railroad companies,
the FRA, State transportation agencies, and the local
authorities working together to make sure these projects are
built quickly and efficiently without bureaucratic or corporate
delays?
Have you better coordination between transportation
agencies and railroads on grade crossing projects?
And what more can be done to expedite the implementation?
And Chairwoman Homendy, I would appreciate any comments you
have on the concern.
Also, I have another question, besides, for you. What are
the effects of the current CR on NTSB, and what would be the
impacts of a long-term CR?
Mr. Bose. Congresswoman, I will take the first one about
the grant program.
And first of all, thank you for your support of the
Bipartisan Infrastructure Law. And Congress establishing a
permanent, longstanding, consistently funded program is a very
important step in that planning process that you are talking
about so that host railroads, communities, State governments,
local governments can talk to each other, and they know that
the funding is in place and it won't go away a year from now.
Having that 5 years of funding is great. If we can continue
that, I think that that would create a pipeline of projects
because we know it does take a long time to do that.
On FRA's end, we will look to ways to streamline the
process. We know that communities definitely deserve a say in
the environmental process, but we can also look for ways to
expedite that.
Mr. Jefferies. Congresswoman, just to jump on that--and I
agree with everything the Administrator said. I know,
everybody. Don't be too surprised.
This is an area where we absolutely fully support the
program. And thank you for your leadership. I would venture
that you probably know more about the challenges of blocked
crossings and grade crossings than anyone on this committee.
You have been a champion for addressing that for a long time.
Community engagement is key, as the Administrator said----
Ms. Homendy [interrupting]. I have a second part of the
question, remember, and she has 2 minutes.
Mr. Jefferies. I got you.
Ms. Homendy. OK.
Mr. Jefferies. OK. Community engagement is key. Getting the
money to work quickly is key. And I look forward to working
with you to make sure this program stays around for a long
time.
Mrs. Napolitano. Great, thank you.
Ms. Homendy. The NTSB has 437 employees. Our budget is
$129.3 million from last year, which is carried over with CR. I
begged for $145 million in the President's budget, and this
committee authorized that for us. I am extremely grateful.
But when it comes to a year-long continuing resolution,
what is happening for the NTSB means a hiring freeze, which
means the professionals aren't out there doing the safety work
that you all need.
Two, it's a freeze on training.
Equipment that's reaching the end of their useful life
cannot be replaced when it's too expensive. IT improvements
that we desperately need to conduct get extended indefinitely.
And that backlog, we had a backlog when I came in as Chair.
Almost 500 reports were 2, 3, 4 years old. That's not
acceptable. Today it's zero. But that takes resources to get
there. That means we have to make sure that our investigators
have the tools they need to succeed. A year-long CR won't do it
for us. We need help. And here's why, and what agencies aren't
talking about.
We have now a well-deserved, 5.2-percent pay raise for our
employees that just kicked in, plus a 5-percent increase in
benefits. That means we are essentially not living off of the
funding that we had last year. It's a cut. So, we are raising
the red flag, saying we have an important safety mission for
this Nation, and we need your help to make sure we have the
resources to succeed.
Mrs. Napolitano. Thank you very much. And I would like to
address the length of the trains and the number of people.
If you have a mile-long train and only one operator, it
would take him one-half hour to go to the back of the train to
find out what is wrong. So, I strongly advocate making sure
that we have enough personnel to deal with problems.
Mr. Nehls. The gentlelady's time has expired. I now
recognize Mr. Stauber.
Mr. Stauber. Thank you very much. And to the witnesses,
thank you for coming here today and sharing your expertise.
One of the things--and I may have missed it, but one of the
things that I think we also have to look at when we talk about
railroad and rail crossing safety is you are going through
rural communities. And I represent northern Minnesota, rural.
We have got a couple of Class I's coming through the district
that I represent. I would really appreciate more of an emphasis
on training our local firefighters and law enforcement.
So, I think that, when an incident does happen, that they
are trained, they understand, they know who to call. We go
through reservation territory, you go through State land,
Federal land, you go through these communities. And I just--I
know that we're not necessarily talking about that today, but I
would really implore you all to make sure that--many of these
are volunteer firefighters that are volunteering their time,
and I think that's really important.
So, I just encourage you, don't forget our rural
communities and the safety for those law enforcement, those
sheriffs, local police officers, and our first responders,
because it's really important. I think that it should be a high
priority. I hope it is, but that is just--I didn't hear it
mentioned today, and I just want to make sure that, as a former
law enforcement officer, it's really important.
And I will just tell you, as a county commissioner in St.
Louis County, we did very good with our rail carriers as far as
safety. It was a good relationship. And I hope that we have
those continued relationships across the country because the
supply chain needs you.
So, I just wanted to--Administrator Bose, this month, a new
State emissions rule goes into effect in California that
requires railroads to phase out older locomotives and convert
them to newer locomotives over the next few years, and to begin
funding an account based on their emissions. The new rule is so
aggressive, the agency in charge, the California Air Resources
Board, or CARB, admits some short lines would be eliminated due
to the cost of the proposed regulation.
In the coming weeks or months, the EPA could give its
blessing to the California rule, and many States could soon
choose to mimic California's misguided measures. Are you
concerned about the impact the CARB rule could have on short
line freight industry?
Mr. Bose. Congressman, the California Air Resources Board
is going through its process. The short line railroads have had
a chance to comment on it. There is litigation on it. As you
know, I don't think it's appropriate for me to comment on that,
especially because it's the EPA.
Can I just address your rural communities point just
quickly?
Mr. Stauber. Sure, quickly.
Mr. Bose. Yes, very quickly. The Pipeline and Hazardous
Materials Safety Administration has a program called the
Assistance for Local Emergency Response Training, and I would
just encourage Congress to continue that program.
And I take your point with rural communities. I witnessed
that myself when I went to Montana and Joplin, Montana. There
was an Amtrak derailment there. But with CARB and with the
short line railroads, I take your point there. The short line
railroads also have the Small Business Administration, they
have an advocate there that can advocate on their behalf.
Mr. Stauber. Mr. Jefferies?
Mr. Jefferies. On your training point, I totally agree,
35,000 first responders trained in the field in 2023. It is a
never-ending mission. So, we are with you on that.
On CARB, we think, one, CARB has moved forward. There is a
rule in place. There is a regulation in place. They have now
gone to the EPA for a waiver. We believe a waiver would be
unlawful. The Clean Water Act says States cannot regulate new
or remanufactured locomotives. That is exactly what this would
do. Twenty-five percent of short lines put out of business,
that's traffic going right back on the highways.
Mr. Stauber. And what would that do to supply chains?
Mr. Jefferies. It would snarl it up. And we don't operate
in a closed network in just California. We operate in a
national, integrated network. And we believe there are other
laws at play there that make it illegal.
Mr. Stauber. Mr. Bose, I want to talk about CRISI real
quick. We have got 30 seconds. These grants help railroads
repair and rehabilitate worn-out track and rail infrastructure,
which is the leading cause of derailments. Sometimes these
grants are given to passenger rail, like the $200 million CRISI
grant from the FRA awarded to the California high-speed rail
project.
Can you commit that the FRA will take the proper amount of
time to fairly review the many competitive projects that will
apply in the next CRISI funding cycle, and not just rush the
money to the handful of headline-grabbing passenger rail
projects?
Mr. Bose. Congressman, to answer your question, yes.
I do want to just make one clarification on that California
project. That went to eliminate grade crossings and separate
the California high-speed rail project from BNSF freight
railroad tracks.
Mr. Stauber. Thank you.
And I yield back.
Mr. Nehls. The gentleman yields. I now recognize Mr.
Johnson for 5 minutes.
Mr. Johnson of Georgia. Thank you, Mr. Chairman, for
holding this hearing, and thank you to the witnesses for your
time and for your testimony.
After Congress passed the Infrastructure Investment and
Jobs Act, President Biden and his administration have taken
steps to make American rail safer, more reliable, and more
resilient, delivering tangible benefits to dozens of
communities where railroads are located and strengthening
supply chains for the entire country.
Additionally, the administration supports fair compensation
for rail workers, ensuring they receive competitive wages and
benefits commensurate with their vital role in the
transportation sector.
In short, the administration continues to put people over
politics. The IIJA doesn't just benefit Democrats, it helps all
Americans, which is why you see my colleagues on the other side
who did not vote for the IIJA at home bragging about the great
resources that they have brought back to their districts under
that law.
As we talk about rail today, we must remember that rail
travel is the cornerstone of American transportation, a symbol
of progress, and a conduit for connecting communities and
fueling economic growth. Its true potential can only be
realized when robust safety measures are in place, safeguarding
every journey and every individual involved in this vast
network.
The safety of our Nation's rail system, both for the
countless passengers who rely on it daily and the dedicated
workers who operate and maintain it, must be at the forefront
of our discussions.
Mr. Bose, Atlanta was originally named Terminus, and it was
founded as a railroad terminus, and it has many dangerous grade
crossings that risk safety of the public.
Under the Infrastructure Investment and Jobs Act, the
Federal Railroad Administration awards grants to local
governments to eliminate these safety risks. Two counties in
Metro Atlanta, DeKalb County, which I represent, and also
Gwinnett County, which I will be representing after this next
election--those counties received funding last year under the
initial round, and many other counties in Georgia are eager to
follow their path, particularly for crossings in disadvantaged
communities. However, the Notice of Funding Opportunity has not
been issued or even scheduled yet for fiscal year 2023.
When does the FRA plan to issue the NOFO for the Railroad
Crossing Elimination Grant Program for fiscal year 2023?
Mr. Bose. Congressman, thank you for the question. We are
going to issue that as quickly as we can.
And since you brought up DeKalb County and Gwinnett County,
I did want to let you know I had an opportunity to visit
Lilburn, and Congresswoman McBath was there. We talked about
grade crossings in Gwinnett County, and I understand the
importance of that.
I also happen to have grown up in DeKalb County, and I know
you were a county commissioner there when I lived there, when I
was older.
But Georgia and Atlanta can serve a lot of different
purposes, from freight rail to also passenger rail. We just
awarded a Corridor ID grant to study routes, and also to do
more between Atlanta and Savannah, Atlanta and Charlotte,
Atlanta and Nashville. So, again, we are hoping for cooperation
between the host railroads, the State, and also local
governments there.
But grade crossings are absolutely an opportunity to make
improvements on--and again, thanks to your support of the
Bipartisan Infrastructure Law, we have a program. And I am
convinced the Georgia Department of Transportation, along with
their local partners, will see and utilize that program more
than just their FHWA Section 130 Program.
Mr. Johnson of Georgia. Thank you. How can communities best
position themselves to succeed in obtaining a grant?
Mr. Bose. That is a very good question, Congressman.
First of all, having local funding in place that they can
use for that 20-percent match helps. It also helps, again, to
have an agreement with the railroad over which the grade
crossing will be. Working with the State agency or a local or
city department of transportation is also helpful.
And again, our FRA can work with your office to get the
word out to your communities.
Mr. Johnson of Georgia. Thank you, and I yield back.
Mr. Nehls. The gentleman yields.
I ask unanimous consent to enter into the record a letter
from Chuck Baker, president of the American Short Line and
Regional Railroad Association, dated January 18, 2024.
Without objection, so ordered.
[The information follows:]
Statement of Chuck Baker, President, American Short Line and Regional
Railroad Association, Submitted for the Record by Hon. Troy E. Nehls
Introduction
As president of the American Short Line and Regional Railroad
Association (ASLRRA), the trade association representing the more than
600 Class II and III freight railroads (commonly known as short line
railroads or short lines) and hundreds of suppliers that make up the
country's short line freight rail economy, I submit this statement for
inclusion in the record of this subcommittee's hearing.
Grade crossing safety and trespass prevention are issues of
paramount importance to the entire rail industry. We join our industry
partners and the witnesses before the committee in a shared commitment
to reducing and eliminating grade crossing collisions and preventing
trespasser injuries and fatalities. This statement provides the short
line industry's perspective on these issues, including suggestions and
ideas for Congressional and regulatory focus. ASLRRA appreciates the
opportunity to provide this statement and to serve as a resource and
partner on any issue related to rail safety.
The Short Line Freight Rail Industry
Short line railroads and the national network. Short lines have
been serving customers for well over a century and play a significant
role in the country's freight supply chain. Short lines are nearly all
small businesses: the typical short line employs about 30 people,
operates about 80 route miles, and earns about $8 million in revenue
per year. These businesses provide first-mile and last-mile freight
rail service, touching one in five railcars on the system, serving
urban centers and also ensuring other businesses in small towns and
rural communities that would otherwise be cut off from the North
American freight rail network have the access they need to the global
marketplace.
Short lines' history and investment needs. The short line industry
as we know it today is the product of the Staggers Act of 1980, which
made the sale or long-term lease of light density lines from Class I
railroads to local entrepreneurs possible and thankfully avoided the
abandonment of those lines and ripping up of their track for scrap.
These lines were spun off for a reason: they faced high hurdles to
continued business operations, were burdened with decades of deferred
maintenance, and often had few customers. These small railroads now
spend up to a third of their annual revenues for maintenance and
improvements, making short line railroading one of the most capital-
intensive industries in our nation. Despite the challenges, the short
line industry has emerged as a great American success story. Short
lines have kept viable those marginal lines they inherited, turned them
into thriving enterprises and emerged as a pivotal link in the freight
economy. The industry now manages one-third of the freight rail network
and touches one-fifth of all carloads while still only accounting for
only six percent of the industry's total revenue.
Short lines are economic engines for localities, particularly
small-town and rural America. Together, our members are tied to 478,000
jobs nationwide, $26.1 billion in labor income and $56.2 billion in
economic value-add--providing a service that 10,000 businesses
nationwide rely upon to get goods and products to market.\1\ Our
members ship all commodities, and industries essential to our country's
economic health--like the manufacturing, agricultural, energy, and
chemical sectors--are particularly reliant on short line service. The
availability of rail service provided by short lines is often the
tipping point for manufacturers and shippers deciding where to grow and
expand, driving new, well-paying jobs particularly in rural and small-
town America. Short lines proved their flexibility during the pandemic,
responding to customers' and the nation's needs.
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\1\ The Section 45G Tax Credit and the Economic Contribution of the
Short Line Railroad Industry, prepared by PWC for ASLRRA (2018).
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Short line personnel live and work in the communities they serve.
Short lines are owned, managed, and staffed by individuals who are part
of the fabric of their local communities. Because short lines run short
distances, employees live near their job--and customers. Many short
lines are family-run businesses--providing safe, efficient, friendly
and cost-effective service is personal to them.
Short lines are environmental stewards. The rail industry is a
sustainable, environmentally friendly mode of transportation. U.S.
Environmental Protection Agency (EPA) data show freight railroads
account for only 0.6% of total U.S. greenhouse gas emissions and only
2.1% of transportation-related sources. On average, freight railroads
move one ton of freight 480 miles on a single gallon of diesel fuel,
approximately four times as far as our over-the-road competition. Short
line service alone keeps 31.8 million heavy trucks off highways and
public roads, preventing costly wear and tear, relieving congestion,
and reducing the still horrifying number of deadly motor vehicle
crashes. Short lines are committed to doing their part, by continuously
seeking ways to reduce their environmental impact with the
implementation of technology and operating practices that reduce
emissions.\2\
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\2\ ASLRRA is currently partnering with the FRA and short line
railroads to test locomotive emissions by studying fuel injectors and
additives. Products like these that increase fuel economy may also
yield emissions benefits. This is a two-year project that will give
ASLRRA a better understanding of how small railroads can utilize cost
effective methods for reducing their impact on the environment.
---------------------------------------------------------------------------
Grade Crossing Safety
Short lines are not immune from the dangers of trespassing and
grade crossing collisions in the communities we serve. While we are
integral to these communities, it is critical that anyone living or
working near railroads recognizes the dangers of crossings and of
trespassing on railroad rights of way. Moreover, while moving goods and
freight is significantly safer on rail than by truck, it is important
that all rail stakeholders work together to make rail even safer by
reducing trespassing incidents and collisions. There are several policy
areas where we encourage you to focus in order to help our industry
continue advancing solutions:
Support the FHWA's Section 130 Program. The Railway-Highway
Crossings program, known as the Section 130 program, supports
improvements at crossings to reduce fatalities, injuries, and
collisions. The 2021 Infrastructure Investment and Jobs Act (IIJA)
rightfully renews it and authorizes $245 million per year for Fiscal
Years 2022 through 2026. The legislation also increases incentive
payments for closures from $7,500 to $100,000 and enables replacement
of functionally obsolete warning devices. There are also other tweaks
and refinements in the law, including increasing from 90 percent to 100
percent the federal share for set aside funds. We represent many short
lines who serve rural communities, and these communities often do not
have the resources for even a 10 percent match on a project that
improves safety at crossings. Accordingly, we strongly endorse any
efforts that provide 100 percent federal share for these projects from
Section 130 or any other account.
Support the Railroad Crossing Elimination Program. IIJA took an
important step forward for grade crossing safety with the creation of
the new Railroad Crossing Elimination (RCE) Program. This is a
tremendous policy achievement, providing new resources to eliminate
dangerous crossings. Moreover, the creation of this new program will
allow the Consolidated Rail Infrastructure and Safety Improvements
Program (CRISI) to focus on tackling even more rail safety challenges.
For example, CRISI--with the robust funding levels unleashed in IIJA--
can now advance even more projects like repairing worn-out track, the
leading cause of derailments on Class II and III railroads.
For RCE, IIJA authorizes $500 million per year for Fiscal Years
2022 through 2026 while also appropriating $600 million per year for
those same years. RCE funds projects to create grade separations, close
or relocate crossings, improve or install warning devices at crossings
as part of separation or relocation projects, and carry out some design
efforts. While short line railroads are not directly eligible for RCE
grants, ASLRRA has encouraged its members interested in advancing an
RCE project to coordinate with eligible public applicants. In the most
recent round of awards announced in June 2023, of the 63 projects
funded, ten involved Class II or III railroads--or about $72 million of
the $573 million in awards. We understand the funding notice for Fiscal
Year 2023 funds will be released sometime early this calendar year, and
we are excited about any possibilities for this program to help address
crossing safety in the communities we serve. We urge Congress to keep
momentum for this program going strong as it finalizes funding
decisions for Fiscal Year 2024, providing as much funding as possible
beyond the guaranteed appropriations already set in IIJA.
Support other critical programs and efforts funded in IIJA. IIJA
made major advances in addressing grade crossing safety through
increased funding for several programs, as well as the establishment of
a rail research and development Center of Excellence emphasizing rail
safety. While the programs that received increased resources--like the
Nationally Significant Multimodal Freight & Highway Projects (INFRA),
the National Infrastructure Project Assistance Program (Mega), the
Rural Surface Transportation Grant Program (Rural), and the Rebuilding
American Infrastructure with Sustainability and Equity (RAISE)
programs--are not expressly designed for grade crossing safety
projects, they can benefit projects that improve crossings and,
accordingly, we urge that they be funded at robust levels.
Support ongoing FRA efforts and Operation Lifesaver (OLI). FRA is
an important partner on grade crossing safety, and we appreciate the
agency's work and its resources, especially on recent efforts like the
Trespass and Suicide Prevention Toolkit.
We support robust data collection efforts to ensure data is
accurate and reflects the true scope of hazards, avoiding collection
efforts that lead to the overreporting or underreporting of incidents.
We also support efforts to address hazards at private grade
crossings; these comprise a significant number of incidents.
Finally, we support more funding for OLI. Thankfully, through
collective industry, agency and volunteer work with OLI, there has been
a significant reduction in highway-rail grade crossing collisions over
several decades. Public awareness efforts by OLI and its partners have
helped many communities recognize the hazards of ignoring warning
devices and illegally accessing railroad rights-of-way. These efforts
have involved spreading fundamental rail safety lessons, such as facts
like trains can approach on a line at any moment, they cannot stop on a
dime, and they can be quite lethal in a collision with a motor
vehicle--striking a car with a level of force that is comparable to a
car crushing an aluminum can.
Many of our members and ASLRRA staff are deeply involved in
advancing OLI's message and mission.\3\ As OLI notes, over 50 years,
collisions at railroad crossings across the U.S. have dropped by 82
percent through education, engineering and enforcement efforts. In
order to achieve these outcomes, OLI relies on federal funds. These
funds have been flat for several years; accordingly, we encourage
Congress and FRA to support any increases that ensure OLI's resources
keep up with inflation.
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\3\ ASLRRA's Senior Vice President of Safety, Regulatory and
Environmental Policy serves as chair of OLI's board of directors.
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Additional Safety Considerations
Avoid misguided mandates. In considering any rail safety issues, we
urge Congress and the FRA to focus on efforts that are reasonable,
realistic and responsive to recognized safety hazards. Many small
railroads are unable to comply with costly ``one size fits all''
requirements that are written with much larger entities in mind. Each
small railroad has a unique operating environment that can differ
dramatically from others. Any action by Congress or the FRA that
ignores this fact could inflict extreme duress and economic harm on a
critical member of the freight rail network and require shifting of
resources from known safety hazards toward extraneous issues. For
example, the FRA is now finalizing a rule that mandates railroads'
hiring of an additional crew member--even though no hazard has been
identified that would be mitigated through the hiring of these
personnel and no safety data shows how expanded and unprecedented
locomotive crew requirements would improve safety. But in order to
comply with these mandates, short line railroads would need to divert
limited resources from needed safety upgrades and investments.
Advance proven safety efforts. We encourage Congress and the FRA to
advance known, demonstrably sound policies and practices that lead to
real safety improvements. For example, as noted above, the leading
cause of derailments on Class II and III railroads is outdated, worn-
out track and ties. Providing robust resources for CRISI ensures that
short lines can make necessary repairs that enhance the safety and
reliability of the network, supporting projects that upgrade outdated
infrastructure as well as fixing bridges, and improving crossing safety
and preventing trespassing. We appreciate the leadership of everyone on
this committee who has worked to have Congress provide the full $1
billion in authorized funds for CRISI in addition to guaranteed advance
appropriations. As another example, the Short Line Safety Institute
(SLSI) helps short line railroads improve their safety culture and
become even better trained in the transportation of hazardous
materials. Ensuring this program has robust, necessary resources is a
common-sense step for rail safety. We the language in the House
transportation funding bill report that recommends that FRA fund the
Short Line Safety Institute (SLSI) at $5 million for Fiscal Year 2024.
Conclusion
ASLRRA appreciates the committee's close attention to the items we
have noted in our statement, and we welcome future opportunities to
work together on these matters.
Mr. Nehls. I now recognize Mr. Burlison for 5 minutes.
Mr. Burlison. Thank you, Mr. Chairman.
Mr. Bose, it seems like it's a good idea to be able to
inspect the train brake system with technology while the trains
are moving and in motion, versus having to stop trains mid-
journey, and have someone walk around the train using their
human eye to spot potential problems, and all the while slowing
down what I think, as we all understand, is a critical supply
chain.
And I understand that the rail management and labor are
both jointly supportive of a waiver petition that has been
pending for quite some time at the FRA to expand the use of
this proven technology that is known as brake health
effectiveness.
Can you give me an anticipated timeline for the FRA's
approval of this pending waiver expansion petition, which we
understand has already been reviewed by the FRA Safety Board?
Mr. Bose. Congressman, we received that application in June
of 2023. That application, that petition, is still under review
at the Federal Railroad Administration.
And I want to be clear on this, because I don't want to
leave any misperceptions here. Brake health effectiveness
technology is utilized right now. It can continue to be
utilized right now. I encourage it to be utilized right now. I
don't want to disrespect the people who are working on the
railroads, the railroad workers who do their duties every day,
day in and day out, through COVID, in bad weather conditions.
They have a skill set, Congressman, that I don't think any of
us in this room have, and I don't want to disrespect their role
in railroad safety.
Mr. Burlison. As I understand, from the data that has been
collected, the use of the brake health effectiveness is over 10
times more effective than the walking visual inspection.
Mr. Bose. Congressman, that data, I am happy to review it.
We have the Railroad Safety Advisory Committee, where we can
bring labor, railroads, FRA together, as well as the industry
that makes that technology.
And again, this is an opportunity with the Rail Safety Act.
Congress can legislate. If it believes in this technology and
endorses it, you can regulate it.
Mr. Burlison. OK. My next question has to do with illegal
immigration.
The whole world knows that it has become a bad problem, it
has impacted a lot of things, but it has also impacted our
supply chain. There have been major rail lines that have had to
shut down twice because of the influx of illegal immigration.
And sadly, this administration, the Biden administration, has
done nothing to prevent this from occurring. And unfortunately,
I don't think Americans are pleased.
We have had enough transportation issues in this country,
and we sure as heck do not need to force the shutdown of other
transportation lines because of the President's unwillingness
to do something about the influx of illegal immigration. So, my
question to you is, was your department aware of this issue
before the closure of these rail lines?
Mr. Bose. Aware of what issue, Congressman?
Mr. Burlison. Of the impact the illegal migrants had on our
rail lines that were coming?
Mr. Bose. Congressman, when it comes to rail security, that
is a matter for each individual railroad to address. The
Customs and Border Protection agency is in charge of handling
things at the border. FRA regulates the safety of the train.
Mr. Burlison. Certainly, your administration is working in
coordination with the Department of Homeland Security regarding
these issues.
Mr. Bose. The Customs and Border Protection agency, when
they issued that closure, or those closures, made a
determination on their own in the best manner that they saw
fit.
Mr. Burlison. And there was no communication between your
agency and CBP.
Mr. Bose. Congressman, I can't equivocally say there wasn't
communication. I can tell you when I saw it happen or heard
about it happening, that was the first time I saw it.
Mr. Burlison. Any steps that you have taken to make sure
that it is not happening again?
Mr. Bose. Congressman, we stand ready to work with the
Customs and Border Protection agency as necessary and with the
railroad companies necessary to assist.
Mr. Burlison. It's sad that we have to address that within
the transportation industry.
Thank you, I yield back the rest of my time.
Mr. Nehls. The gentleman yields. I now recognize Mr. Garcia
for 5 minutes.
Mr. Garcia of Illinois. Thank you, Mr. Chairman and Ranking
Member, and, of course, to all of the witnesses.
As everyone knows, Chicago is the Nation's rail capital.
With over 7,400 miles of railroad tracks and thousands of rail
crossings, we are quite familiar with rail and the benefits and
challenges that come with it.
Illinois has the third most blocked crossings report. One
of the dangerous effects of these blockings is that
pedestrians, including kids on their way to school, can't
safely cross the tracks at times in a timely manner. So, some
school kids in my district are ducking under massive freight
trains, hoping that the trains don't start moving.
The Grand Avenue grade crossing in the village of Elmwood
Park bordering my district is a significant safety concern. The
crossing has more than 120 trains and 25,000 vehicle crossings
every day. It is 360 feet wide, the longest crossing in the
State of Illinois, and is blocked for 20 minutes each hour
during morning and evening travel. Elmwood Park is seeking
Federal support to construct a grade separation through the
IIJA discretionary grants.
Administrator Bose, what has the FRA assessed why railroads
in Illinois seem particularly prone to blocking the crossings?
Mr. Bose. Congressman, thank you for that question.
First on Elmwood Park, I have heard from the mayor
directly. I have also heard from Ranking Member Quigley's
office about Elmwood Park and the situation there. There is no
doubt that Illinois--Chicago, specifically--is the center of
the country's rail network, historically, and for a number of
reasons. And so many railroads operate through there, as well
as all of the major Class I railroads.
So, Chicago just happens to be the epicenter. That's why it
is so useful that it has the CREATE Program, a program that the
Federal Government has given plenty of funding to. And we know
that that is an ongoing effort, and we look forward to funding
more projects through that, which is such a great collaboration
between the railroads, between Metra, Amtrak, as well as FRA
and the Federal Highway Administration.
Mr. Garcia of Illinois. Thank you for that. And will you
commit the utmost attention and consideration of grant
applications like this that will prevent tragedies?
Mr. Bose. Yes, sir. safety is our guiding principle in the
Railroad Crossing Elimination Program, as well as the
Consolidated Rail Infrastructure and Safety Improvements
Program.
Mr. Garcia of Illinois. Thank you, Administrator. I look
forward to working with you on this issue.
To Chair Homendy, what can Congress do to better support
rail workers and improve safety?
Ms. Homendy. Implement our NTSB recommendations. We have
190 open rail safety recommendations, many of which address
rail worker safety. Implement them.
I know this committee has implemented many of our
recommendations and legislation. I look forward to working with
you again.
Mr. Garcia of Illinois. Great, thank you.
And finally, Mr. Jefferies, your testimony includes a
statistic that grade crossing collisions in 2022 were down 37
percent from 2000. But recent NTSB data shows an increase in
collisions over the past decade. Does this indicate that, while
collision rates have improved compared to 22 years ago, they
have worsened within the past decade?
Mr. Jefferies. Well, I think we can say without a doubt
that grade crossing safety is the largest challenge we face
when it comes to public facing and public casualties. And so,
we should be working collectively, which I think we are,
looking at every avenue possible to reduce, one, likelihood of
impact; but two, to make crossings as safe as they can, and
that includes public awareness, as well, making sure the public
knows the dangers of trying to beat a train, for example.
And CREATE is a key portion of that, separating grades in
Chicagoland. Thank you for your long-term support there. But
this is not an issue we are going to solve overnight. We have
got to make continuous progress.
Ms. Homendy. But I would also add to that that this is why
the NTSB has long recommended connected vehicle technology, so
that drivers are aware of when there is an active crossing.
That is one technology.
Also, just in motor vehicles themselves--we talked about
impairment earlier with respect to grade crossings. The
automakers are currently implementing driver monitoring
technologies that would help prevent impaired driving and
fatigue.
So, these are all technologies that could also address
safety where our rails and our roads meet.
Mr. Garcia of Illinois. I thank you both.
I yield back, Mr. Chair.
Mr. Nehls. The gentleman yields. I now recognize Mr. Yakym
for 5 minutes.
Mr. Yakym. Thank you, Mr. Chairman, and thank you to all of
our witnesses for being here today.
I am especially happy to see my fellow Hoosier on the panel
today, Indiana Department of Transportation Commissioner Smith.
Welcome.
Commissioner Smith, you were invited to testify because
Indiana is a leader in railroad crossing elimination through
its innovative Local Trax Rail Overpass Program. Most of us
probably know railroad crossings as a headache on the drive to
work or across town. Too many of us know a site where a loved
one or a friend has perished. As you point out in your
testimony, Commissioner Smith, Indiana alone has 7,500 highway
grade crossings. While you can't eliminate them all, you do
focus on crossings that cause the greatest disruptions to
quality of life and commerce, or present the greatest safety
risk.
As a Representative of northern Indiana, I have seen
firsthand the benefits that these projects can have in our own
communities. Commissioner Smith, can you please talk about what
you hear from communities that have been awarded Local Trax
funds?
Mr. Smith. Yes, I think this is everything to our local
communities in terms of their economic vitality, but most
often, just safety and mobility for their citizens.
And so, we have a community back home, community crossings
that we talk about a lot, where locals get to pick and get
support with just basic maintenance of their roadways. We view
this as that type of essential program in terms of Local Trax.
And so, these, in a lot of cases, are investments that they
could never make on their own. And we value the part where we
talk about not only State and local investment, but investment
of the rail companies, as well. So, really, adapting and
accomplishing something that we couldn't, where local
communities couldn't on their own.
Mr. Bose. Congressman, can I just jump in? I really want to
commend Indiana DOT and the commissioner for his approach on
this.
And I just want to note also for the panel, States like
Missouri, States like Ohio have really stepped up their game
when it comes to State funding for grade crossing safety,
things that we hadn't seen before. I am convinced that those
States saw the Railroad Crossing Elimination Program, and saw
it as an opportunity and as a way to utilize Federal and State
funding together. I just wanted to make that point.
Mr. Yakym. Thank you, Administrator.
And Commissioner Smith, what do you think are some of the
biggest keys to success to the Local Trax Program, and some of
the biggest drivers of the inputs of success that you see from
our local communities?
Mr. Smith. Well, I think we were very intentional, as Ms.
Homendy discussed earlier, getting local input. And so, this
wasn't the State coming to local communities or stakeholders
and identifying a problem, but allowing them to scope and tell
us and drive the process themselves. And so, I think that is
one of the best parts of the program.
I think in terms of, just the time it has taken us to
administer the program, I mean, there is a reason why we
dedicated State funds to try and get these out the door. And
really, we missed an opportunity with the massive inflation
that we have seen over the last couple of years. And so, we
have got to do our best to continue to remove those types of
roadblocks from our local communities.
Mr. Yakym. And Chair Homendy, briefly.
Ms. Homendy. Congressman, I would just add: it's not just
resources, it's not just local input. It takes years to get
these projects completed. We have to figure out a way to
streamline these projects. Years. Meanwhile, the local
community is continually stating, ``We need to address this,
this is a safety problem.''
Mr. Yakym. All right, thank you.
And Commissioner Smith, is there anything else you would
like to add about this program, or even more broadly about the
interaction that the Indiana Department of Transportation has
with our Federal Government?
Mr. Smith. Yes, to build on Ms. Homendy's point, I think we
would say that we have seen a great amount of success getting
grant agreements and discretionary funding underway with our
Federal highway partners. And no disrespect to other agencies,
I think the Federal Highway Administration has a lot more boots
on the ground and expertise in delivering the volume of grants
that we are talking about with the Bipartisan Infrastructure
Law. I would ask that we lean on the successes we have seen in
the Federal Highway Administration.
And also, we are asking local communities to do some things
that are outside of their expertise, so, really trying to give
them the resources technically to deliver some of the
priorities that they are trying to deliver is a real gap out
there, as well.
Mr. Bose. Respectfully, Congressman, if I can just address
that, I endorse all the efforts at the Federal Highway
Administration. If the Federal Railroad Administration had
decades of trust fund funding for our programs on a continuous
basis, I am confident that FRA would not be in the position
that we're in, but we are making the best use of our resources.
Again, we have a lot of learning to do, and we are willing
to do that, and we want to work collaboratively with States.
Mr. Yakym. Thank you.
Commissioner Smith, thank you for being here today, thank
you for bringing your Hoosier common sense to the Nation's
capital.
Mr. Chairman, thank you for holding this hearing. And with
that, I yield back.
Mr. Nehls. I now recognize Mr. DeSaulnier for 5 minutes.
Mr. DeSaulnier. Thank you, Mr. Chairman, thank you to all
the witnesses.
Madam Chair, I understand you have to leave, so, I am glad
I have a moment. You seem to be everywhere, by the way,
recently.
Ms. Homendy. Listen, I am here as long as you all have
questions. Whatever you need.
Mr. DeSaulnier. Spoken like a former staffer of this
committee.
[Laughter.]
Mr. DeSaulnier. I have a district, as you may remember,
that is a suburban-urban district in the East Bay of the bay
area. We have one of the highest concentrations per capita in
geography, density of hazardous materials sites because of five
refineries and multiple chemical plants.
The combination of the local hazardous materials team at
the county health department and the regional air quality folks
in Cal/OSHA have really established a good practice. On the
other side, on the commuter rail, we just recently had a
derailment by the Bay Area Rapid Transit system, so, my
question is to safety culture. You have had a lot of experience
of this lately in a world that's changing.
So, on BART's problem, they were changing some of the
technology, but their revenue source is way down because people
are staying home. The revenue from farebox recovery has gone
down because of COVID, so, the world changed. But keeping that
safety culture both in their capital improvements, as you say,
that take a long time and are still adaptable.
On the refinery and the energy side, I am hearing a lot of
stuff, or there is a lot of stress because that business is
changing. And the return on investment, particularly the
modeling on return on investment and safety culture, my sense,
is changing.
So, how do we maintain, as you go out there, not only
deploying your recommendations, but getting upstream?
The BART situation reminded me early of when you were a
subcommittee staff director, when we had the problems with
WMATA and loss of life at the L'Enfant Station.
So, the question is, in a changing environment both on the
industrial side and on commuter rail, how do we keep these best
practices when it comes to safety culture, whether it's capital
improvements or operations?
Ms. Homendy. Yes, that's a great question, and I know the
FRA has done some recent work on railroad safety culture. We're
also doing an investigation on Norfolk Southern's railroad
safety culture, largely as a result of the just sheer number of
accidents that occurred within a short amount of time involving
Norfolk Southern. And so, that is underway. They have
actually--really, they have welcomed us on property. They have
been working very cooperatively. So, we are thankful for that,
and also working with the unions, as well.
But we did a safety culture review of Metro-North not too
long ago, where they had five deadly accidents between 2013 and
2014, and we realized that, really, what all the workers were
hearing was on-time performance, while the leadership thought
that they were saying safety. And so, there was a real
disconnect there.
Safety culture is key. I have to say, I really do believe
our aviation system is a model for others when it comes to
safety culture. When something happens, nobody is pointing
fingers at each other. Everybody is getting together to figure
out how we can figure out what happened and determine how to
prevent it from happening again. And that is something that--it
is a really unique culture from aviation. And I would just
advise some of the other industries to really sit down and
learn from that culture.
But it is something that we are all struggling with,
whether it's NTSB--just workplace culture after COVID, it's all
a very different environment.
Mr. Bose. Chair Homendy and Congressman, if I can jump in
here, in terms of the Federal Aviation Administration and
aviation safety: FRA, we are not closed-minded. We can learn
from them. We have worked with them in the past. We have
invited them to events, like we do called Rail Share, where
railroad companies, railroad labor, the industry can come
together and talk in an open forum.
The safety culture assessment is something very important
at FRA. We are doing it for all the Class I railroad companies.
We did an audit of Amtrak, as well, recently that Congress
required us to do. Also, we did a high-hazard flammable train
route assessment.
So, at FRA, we're not just resting, we're constantly moving
and looking at ways to move the needle on overall railroad
safety.
Mr. DeSaulnier. I think this conversation about best
practices and safety culture is really important. The
Department of Energy has done so much on nuclear safety.
Michael Lewis wrote his great book, ``The Fifth Risk.'' We can
borrow these human factors, in particular across different--
whether it's aviation, rail, energy, and hopefully, we are
doing that at the Federal level, because we should be.
Thank you so much, Mr. Chairman, I yield back.
Mr. Nehls. Thank you. I now recognize Mr. Kean for 5
minutes.
Mr. Kean of New Jersey. Thank you, Mr. Chairman, and thank
you for convening this important hearing. I would also like to
thank the witnesses for being here today.
Before I get into my questions, I want to note for
Administrator Bose the letter I sent to the FRA on December 20
of last year. This letter, regarding the designation--or I
should say the redesignation--of a quiet zone for the township
of Branchburg, New Jersey, in my district. The township has
shown their commitment through funding and entering into
necessary agreements with Norfolk Southern and other pertinent
partners. I sent the letter to your Associate Administrator for
Railroad Safety and Chief Safety Officer. I will make sure that
you and your team receive a copy of this letter before you
leave here today.
But in the meantime, can I get your commitment to work with
my office and Branchburg on this effort?
Mr. Bose. Absolutely, Congressman.
Mr. Kean of New Jersey. Thank you. And Administrator Bose,
do you think that grade crossing safety is ripe for innovation?
Mr. Bose. For innovation?
Mr. Kean of New Jersey. Yes.
Mr. Bose. Yes, sir.
Mr. Kean of New Jersey. And what specific steps have you
taken since you were confirmed to encourage and advance
innovation to grade crossing safety?
Mr. Bose. We have worked with the railroad companies, and
we also have research projects that are underway right now. I
mentioned that vehicle-to-grade crossing technology
communication that we have. We are open to all other types of
initiatives.
And also, if Congress has any ideas or any things that FRA
should look at, we are happy to do that.
Mr. Kean of New Jersey. Thank you.
Mr. Jefferies, you mentioned in your testimony most grade
crossing and rail-related pedestrian accidents are preventable,
and can best be reduced through education, engineering, and
enforcement. I want to focus on the education front.
What has the FRA or your association done to educate the
public to prevent these possible deaths or injuries?
Mr. Jefferies. We all work collectively through an
organization called Operation Lifesaver, whose sole mission is
public awareness around the risk and danger of attempting to go
across a crossing that is closed, of trespassing on train
tracks. Their motto is, ``See tracks, think trains,'' because a
train can't just stop on a dime like a car can.
And so, we would love to see additional Federal funding. It
is a good partnership, I think, across the board, and it is
one--I think Congressman LaMalfa asked about addressing driver
behavior. Public awareness is a key way of doing that.
On top of that, Chair Homendy mentioned technology in cars.
As we continue to build more autonomous technology into cars,
the ability is there to not allow a car to proceed with a
blocked crossing, with a closed crossing. And so, we think
myriad tools exist. Railroads are going to do their part. We
are going to work with communities. We are going to work with
our regulators and our safety overseers, but it takes on all-
of-the-above strategy.
Mr. Kean of New Jersey. Thank you.
Mr. Chairman, I yield back my time.
Mr. Nehls. Thank you. We have two Members left for
questions.
I think, Ms. Homendy, I am going to be up there at----
Ms. Homendy [interrupting]. I am here as long as you want
me here.
Mr. Nehls. OK, all right. I now recognize Mr. Mann for 5
minutes.
Mr. Mann. Well, thank you, Mr. Chairman. Thank you all for
being here, and thanks for this important hearing.
A couple of quick things, and this is for you, Mr. Bose. I
represent the Big First District of Kansas, which is the
western two-thirds part of our State, except for the Wichita
area. We have got 4,600 miles of active rail in our State. We
have 4 Class I railroads, 13 short lines, and 2 switching and
terminal railroads in Kansas. Moving goods across the State and
country are vital for our ag industry and other industries, as
well.
The first question, and we have all kind of been in and out
a little bit, I understand this has come up a couple of times
here. But for you, Mr. Bose, brake health effectiveness, what
is the exact timeline for when we anticipate a response or an
answer?
And just as a Member of Congress, my understanding is the
technology is there. My understanding is labor is for it, the
railroad is for it, waiting for approval. When are we going to
get some kind of an answer or direction, and where exactly does
it sit in the process?
Mr. Bose. Congressman, we are reviewing that petition, the
FRA is. In terms of the timeline, I will get back to you with
an exact timeline.
There are comments that have to be addressed. There is
safety that has to be looked at. I hope that FRA staff are in
place, and there is continuous funding so that they can look at
waivers and review waivers. There is a multiple number of
variables here that, right now, I can't give you a specific
timeline on that. We are actively reviewing that.
Mr. Mann. OK, OK, fair enough.
Next question for you, Mr. Jefferies. In my district, we
have rail crossings where the train stops, and you have
emergency management vehicles. In a lot of rural communities,
there are not a lot of other grade crossings or options. In
your testimony, you mentioned how railroads are working on
innovative approaches to address problematic crossings. What
are some examples, and what do you need from us here in
Congress as we all move forward?
Mr. Jefferies. Well, thank you for that. So, as you
probably heard, we strongly believe--I think everyone on this
panel believes--that the best crossing is the one that doesn't
exist. But you can't eliminate every crossing out there. That's
never going to happen.
And so, the second best way of addressing that is, one,
working with the community, identifying, OK, do we have a
chronically blocked crossing, and why.
Mr. Bose talked about our experience working together in
Houston, where we addressed crossings on 19 critical roadways,
and have seen a decrease of over 60 percent in 6 months. So,
good progress there.
So, whether it's making operational changes--I know in
Hammond, Indiana, we were able to change an interchange point
that reduced--not eliminated all blocked crossings, but made a
big chunk of difference. So, whether it's using technology,
whether it's operational changes, whether it's infrastructure
investment, and then really, in the event of a blocked
crossing, making sure we are communicating to the public and to
first responders so that they know about alternate routes or
how long a crossing might be blocked.
So, all-of-the-above strategy, and would love to sit down
and work with your office to see how we might best address what
you are referring to.
Mr. Mann. Yes, likewise.
And last question for you, Chair Homendy. Earlier with a
question you--I think your exact words were, ``It's not just
resources . . . . We have to figure out a way to streamline
these projects,'' and every one of you nodded your head. How do
we do that?
Ms. Homendy. That's a great question. We do not have a
recommendation on that. I would be happy to work with the
committee, just from previous experience.
But we can't have a situation where this takes years and
years to address community concerns. And right now, we are
looking at 7, 8, 9, 10 years for a lot of these projects.
That's just not acceptable. That's not an improvement to
safety.
Mr. Mann. That's right. And many times, the resources are
there, the will is there on all parties' parts. With inflation,
the cost continues to go up, which you mentioned, Mr. Smith,
and we have these multiple-year delays. It makes no--these are
solvable problems that we need to figure----
Ms. Homendy [interrupting]. They are solvable problems. But
also--and Mr. Smith had mentioned making sure that local
entities have the resources that they need, too, because a lot
of times with these projects, a lot is put on local
communities.
If you just look at the Mendon accident, the Mendon,
Missouri, accident, when we were on scene. I went to visit the
three local commissioners who mostly spend their days in their
small businesses. They don't do grade crossing elimination or
active crossings. And they looked at me and said, ``We don't
know how to come up with this money, and we don't do
environmental engineering work. How would we afford this?''
Now, luckily, FRA was on scene. Federal Highways I was able
to call, and we pulled everybody together, along with BNSF and
the State and Amtrak to get a great solution. But that's not
always available.
So, the locals need to know how to get the resources and
where to go to get them.
Mr. Mann. Yes, that is right. Thank you.
I yield back the balance of my time which I do not have.
Thank you.
Mr. Nehls. Thank you. The gentleman yields. I now recognize
Mr. Duarte for 5 minutes.
Mr. Duarte. Thank you, Mr. Chairman. I appreciate it.
Ms. Homendy, Chairman Homendy, am I getting that even
close?
Ms. Homendy. Jennifer works.
Mr. Duarte. Jennifer. Thank you. John. Good to see you.
Speaking of the timeframes to put together some of these
projects--7, 8 years--one of the features of the recent Fiscal
Responsibility Act that dealt with the debt ceiling was a very
robust NEPA reform that I believe was long overdue that put
down that minor projects, except for the biggest projects,
should be accomplished within 1 year, and there should be a
lead agency status.
Has your group, to alleviate some of these time drags and
timeframe delays on these construction projects, looked at the
new policies for the National Environmental Policy Act under
the Fiscal Responsibility Act to see if you can streamline?
Ms. Homendy. We have not looked at that. Perhaps that is
something that FRA has and others. Our mandate is to
investigate an accident.
Mr. Duarte. Fair enough.
Ms. Homendy. But it's not----
Mr. Duarte [interrupting]. So, I will ask you----
Ms. Homendy [continuing]. Something we have looked at.
Mr. Duarte [continuing]. Administrator Bose, have you
looked at the NEPA reform policies under the Fiscal
Responsibility Act signed by the President, bipartisan
legislation, to see if you can streamline some of these
projects and make them easier, cheaper, faster?
Mr. Bose. Yes, sir. We are actively looking at that, and
also working across different agencies because these programs
are--a road program, it can be a road project as well. So, that
involves another agency. But we are.
Mr. Duarte. Great. So, can we expect you to bring back to
us what you find, how you are going to help guide these
programs along faster, and be ultimately responsive to the NEPA
reforms under the Fiscal Responsibility Act?
Mr. Bose. We can do that.
Mr. Duarte. I appreciate that. Thank you.
Director Bose, we have a big pushback from this
administration against pipelines. We don't seem to want to
build pipelines for natural gas. We don't want to build
pipelines for crude oil movement anymore. How has energy
transport, as we have backed off the pipeline approach and
moved a lot of energy transportation, oil and gas mainly, to
rail, impacted the capacities, the safety of rail in the United
States?
And what is your forecast for how a continually growing
economy--we just set records in oil production, which means we
are setting records in gas production. How are you planning for
the increased movement of these energy products by rail, since
we are not building pipelines?
And what is the relative safety and economics of moving
these energy resources by rail versus pipeline?
Mr. Bose. Congressman, thank you for that question.
I had an opportunity over the summer to visit the Bakken in
North Dakota. I happened to be at FRA in the 2012-2013--at
Department of Transportation--timeframe, when there was a
growth in that sector, and there were a lot of issues related
to oil being moved on trains. That has subsequently improved.
When I was at the Bakken, and it just may have been at the
moment in time, there was actually a lot of shuttered terminals
up there at that time.
As long as there is domestic growth, and the product can be
moved safely in rail in the right tank cars, and the rail
industry is producing the right types of tank cars to transport
those commodities, FRA will be there to make sure that they are
transported in a safe manner.
Mr. Duarte. Thank you. Looking at the California Air
Resources Board, my district is a Central Valley district with
many food producers and food processors. We have the Modesto
and Empire Traction Company that connects the old Santa Fe line
with the Union Pacific lines along that small, short line rail
system, family-owned; the biggest canneries in the world; some
of the biggest food processors in the world; Gallo Winery, the
largest winery in the world.
Our food system is greatly reliant not only upon local
short lines such as Modesto and Empire Traction Company, but
also many of these entities themselves, whether they make pie
filling with corn syrup or they fill grain elevators to feed
our poultry and dairy industries, have their own small
locomotives that are there to position cars through their
hoppers, and very short private rail systems that will be
greatly impacted by the elimination of diesel locomotives. It
might be 10 years old, but they are far from worn out, and they
are only incidentally used. I am just going to admonish you to
be very sensitive to elimination of short rail lines.
And in my final seconds, I will tell you, we can't even get
electrical hookups from Pacific Gas and Electric in large parts
of my district. So, the prospect of using electrical units for
any of these replacements is impossible. We can't even put in a
new housing development or retail outlet in the town of Madera,
because PG&E has a 2-year wait that has been a 2-year wait for
3 years now for any new electrical hookups. So, there is no
feasibility to comply with some of these ultra-low emissions
standards.
Mr. Nehls. The gentleman's time has expired.
Mr. Duarte. I yield back.
Mr. Nehls. Thank you.
I know Mr. Molinaro has two questions. I think the first
one is for you, Ms. Homendy. And then, after you answer, you
can feel free to be excused. OK, all right.
Ms. Homendy. I know who funds us.
[Laughter.]
Mr. Nehls. Mr. Molinaro, please.
Mr. Molinaro. Jennifer, I am very grateful to you.
Ms. Homendy. Thank you.
Mr. Molinaro. If it helps, I will, however, start in
reverse, Mr. Chairman.
And so, you spoke, obviously, about the NTSB's vital role
in seeing what obviously goes wrong in transportation issues.
And we have acknowledged, obviously, some of our concerns. I
was glad to vote in committee and on the House floor to support
increased funding and reauthorization of the NTSB, which you
duly noted, which was included in the FAA reauthorization.
Specifically in your testimony, you mentioned rail worker
safety at grade crossings. And I, for one, want to join my
colleagues and acknowledge the work of the men and women who
provide for rail safety around this country. They provide for
our national economy. And of course, we are grateful for their
hard work.
In your testimony, you also discussed a number of
reoccurring safety issues at grade crossings. Can you just put
a highlight for the folks in upstate New York, in particular,
to the specific few recommendations that you would recommend to
ensure such safety issues don't happen again? I just want to
reinforce that message.
Ms. Homendy. Yes. On grade crossings themselves, it's grade
crossing design, it's technology to prevent grade crossing
collisions and, of course, increasing or improving rail worker
safety.
But at-grade crossings themselves with respect to design,
we have looked at the profile of crossings to make sure that
they are designed, constructed, and maintained in a safe manner
so that cars, vehicles aren't getting stuck on humped
crossings. We have looked at traffic queues at grade crossings.
We have seen that adequate line of sight to ensure vegetation
doesn't prevent drivers from seeing, as they pass, maybe
passive grade crossings and, most importantly, improving
passive grade crossings so that they become active crossings
with lights, gates.
Mr. Molinaro. Thank you, I appreciate that.
And Administrator Bose, I just want to turn to the CRISI
grants, in particular. I remain a strong advocate for
implementation and use of those dollars. The program, of
course, helps short line railroads repair and rehabilitate
worn-out track rail infrastructure specifically in parts of the
country like upstate New York, where our infrastructure is
exceptionally dated. And, frankly, these dollars, these grants
make a significant impact.
Now, I have requested the Appropriations Committee provide
increased funding for the CRISI program, and will continue to
advocate for overall support of the program. That said, like
some of my colleagues, and certainly those I represent, I share
concern that much of the funding available--and with,
obviously, much of the Nation turning perhaps to electoral
politics in the next couple of months--the administration may
not be as focused on getting those dollars on the ground, and
addressing the needs of the short line projects that ultimately
apply.
Can you give commitment that the FRA will take the proper
amount of time and more efficiently review many of those short
line projects that will apply next for CRISI grants?
Mr. Bose. Congressman, you have my word on that. And I
would just note, we have $700 million that we awarded to short
line railroads, a historic level, just in 2023. But I
understand your point, and we want to do that expeditiously.
Mr. Molinaro. Yes. So, I live in a part of the country that
has seen the deterioration of that infrastructure. And despite
the massive amount of funding, too often those dollars don't
effectively get on the ground in an efficient way.
And certainly I would note in closing, Mr. Chairman,
because I know time is of the essence, in the part of the State
that I represent, Binghamton, New York, the Southern Tier,
massive investment over the years, but deterioration of the
infrastructure is not only impacting the safety of the short
lines themselves, but of the communities therein. And it is
just necessary to move those dollars a bit more effectively and
efficiently.
And with that, Mr. Chair----
Ms. Homendy [interrupting]. Wait, don't yield back. May I
just say thank you for your support of the NTSB and for funding
and our reauthorization bill as part of the FAA bill?
I say that sincerely, because our authorization expired at
the end of fiscal year 2022, and it makes a real difference
when you are a small agency with such a small budget. If you
don't have an authorization, we are constantly begging for what
our next budget will be. It makes a big difference. So, I
appreciate all your work on the committee. Thank you for your
support of the NTSB.
Now you can yield back.
Mr. Molinaro. I yield, Mr. Chair.
Mr. Nehls. We are going to yield your last 10 seconds to
Mr. Payne here for one last question.
Mr. Payne. Thank you for the indulgence of the Chair.
And Ms. Homendy, just while I have you here, I couldn't
help but ask in reference to autonomous vehicles, in the
context of rail, what are your thoughts?
Ms. Homendy. I would have real concerns with our railroads
being the test bed for autonomous vehicles. If you just look at
the investigations that we have conducted on autonomous
vehicles on our roads, there are a lot of safety lessons to be
learned there. I would not want to see a 2- to 3-mile-long
train, much less a 4-mile train, which I once saw a concept
for, with nobody on board.
I mean, let me tell you, in East Palestine, that crew did
an amazing job in a situation where you have 149 railcars, a
distributed power unit, and a locomotive. I don't want to see
that going down the track with nobody on board.
Mr. Payne. Thank you, and I yield----
Mr. Jefferies [interrupting]. To be clear, no one is
suggesting that.
Ms. Homendy. I think you just said it could be a test bed.
Mr. Payne. Thank you.
Ms. Homendy. I love Ian.
[Laughter.]
Mr. Payne. I yield back.
Mr. Nehls. The gentleman yields. Are there any further
questions from any members of the committee who have not been
recognized?
Seeing none, this concludes our hearing for today. I would
like to thank each one of you, each one of our witnesses for
your testimony.
The committee stands adjourned.
[Whereupon, at 12:32 p.m., the subcommittee was adjourned.]
Appendix
----------
Questions to Hon. Amit Bose, Administrator, Federal Railroad
Administration, from Hon. Troy E. Nehls
Question 1. There are several Federal grant opportunities at United
States Department of Transportation (DOT) for states, municipalities,
and others to improve or eliminate grade crossing safety issues.
However, many of these grant awards have not been announced or awarded
yet, including the newest round of Rail Crossing Elimination grant
funding. When can we expect an announcement for these grants, and can
you explain the delay in announcing and awarding funds?
Answer. FRA anticipates announcing the Railroad Crossing
Elimination (RCE) Notice of Funding Opportunity (NOFO) in spring of
2024. FRA's Office of Railroad Development conducts regular outreach to
our railroad partners as well as local communities, and we offer
debrief meetings to unsuccessful applicants to any of our grant
programs. In the months following announcement of FY22 RCE awards, the
FRA Office of Railroad Development has conducted nearly 50 RCE debrief
meetings. These meetings have been valuable opportunities for
applicants and their partners to understand how to improve their
applications for the next round, and FRA benefits from hearing the
challenges and concerns within the program experienced by our
applicants.
From these meetings, FRA has heard that more guidance on the
project lifecycle would be helpful, particularly regarding planning.
FRA published in January 2023 its Guidance on Development and
Implementation of Railroad Capital Projects,\1\ which defines every
stage of the project lifecycle, including planning. We also learned
that applicants would like more clarity regarding RCE's unique program
conditions, such as eligible funding requests, set-asides, and eligible
project types, and we plan to clarify these points in the next NOFO and
conduct more educational outreach.
---------------------------------------------------------------------------
\1\ FRA's Guidance on Development and Implementation of Railroad
Capital Projects is available online on FRA's website at Railroad
Capital Project Guidance (dot.gov) [https://railroads.dot.gov/sites/
fra.dot.gov/files/2023-01/FRA%20Guidance%20on%20Development%20and
%20Implementation%20of%20Railroad%20Capital%20Projects.pdf].
Question 2. Small communities face administrative limitations which
often put them at a disadvantage in applying for grants and assistance,
even when they clearly qualify. Unfortunately, evaluating subjective
criteria, such as climate benefits, may exacerbate this disadvantage.
Should the FRA focus the rail crossing elimination program on
projects that have quantifiable safety and economic benefits ahead of
benefits like climate change that a small community would have
difficulty measuring?
Answer. Each eligible application is evaluated on its individual
merits and the program's selection criteria, which are public in the
Notice of Funding Opportunity. FRA asks applicants to demonstrate any
benefits a project may provide for safety and mobility, as well as
additional benefits in addressing many other factors. In the course of
conducting RCE debriefs and informational meetings with applicants, FRA
has not heard concerns regarding climate change criteria from RCE
applicants. Additionally, FRA does not believe that climate change and
safety are mutually exclusive; for example, a grade separation project
provides safety benefits to railroads, motorists, and pedestrians,
while also reducing railroad and vehicle delays that may cause
additional emissions.
Question 3. BNSF Railway, with support from the Brotherhood of
Railway Carmen (BRC), petitioned FRA to approve an expansion of its
Brake Health Effectiveness Waiver (BHE). This waiver was reviewed and
approved by FRA's Safety Board in June 2023. It has been more than six
months, and this is proven technology that has been deployed for years
with demonstrated increased safety benefits. Which organization is the
FRA waiting for comments on BHE?
Question 3.a. Given the current use and prior approvals of BHE
waivers, what concerns are preventing immediate approval of expansion?
Question 3.b. It is my understanding the BHE Test Committee which
includes FRA representatives, BNSF, American Association of Railroads,
United Transportation Union, Smart TD, BRC, and other railroads have
already voted in support of the expansion. If this is accurate, why is
FRA still reviewing the request? What are the outstanding issues
preventing finalization?
Answer to 3., 3.a., & 3.b. FRA has broad discretionary authority to
waive the requirement to comply with any rule, regulation, or order
upon finding doing so is ``in the public interest and consistent with
railroad safety,'' and is currently reviewing BNSF's petition.\2\ FRA
considers every petition for waiver on its own merits and strives to
act on waiver petitions in as timely a manner as possible. FRA
investigates and analyzes the facts and circumstances of each petition
to determine whether granting the requested relief is justified. In
doing so, FRA staff conduct a preliminary review of an incoming
petition to determine whether it meets the minimum regulatory
requirements. If a petition meets these requirements, FRA will provide
a public comment period. FRA will also conduct an appropriate technical
analysis and may conduct a field investigation. Only after
consideration of all relevant information and data, including any
public comments received, FRA may issue a decision on the incoming
request, explaining the reasons for granting or denying the request.
Although BRC has expressed its support of BNSF's waiver request,
several labor organizations filed comments opposing the request before
\3\ and after the January 18, 2024, hearing.\4\ See https://
www.regulations.gov/comment/FRA-2018-0049-0031. FRA will make a
determination on this waiver petition once its review is complete.
---------------------------------------------------------------------------
\2\ BNSF's petition is available in FRA Docket Number FRA-2018-0049
(available at www.regulations.gov).
\3\ The comments submitted before January 18, 2024, were not
submitted in direct response to FRA's notice in Docket Number FRA-2018-
0049, but were submitted in dockets FRA-2020-0033 and FRA-2006-24812.
\4\ The unions party to the jointly-filed comment in Docket Number
FRA-2018-0049 include: American Train Dispatchers Association;
Brotherhood of Locomotive Engineers and Trainmen-IBT; Brotherhood of
Maintenance of Way Employes Division-IBT; Brotherhood of Railroad
Signalmen; International Association of Machinists and Aerospace
Workers; International Association of Sheet Metal, Air, Rail and
Transportation Workers-Mechanical and Engineering Department;
International Association of Sheet Metal, Air, Rail and Transportation
Workers-Transportation Division; International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers;
the National Conference of Firemen & Oilers, SEIU; and Transport
Workers Union of America.
Question 4. FRA strongly supports having all Class 1 railroads join
the Confidential Close Call Reporting System. However, FRA and the
Class 1s have yet to meet to discuss and resolve issues to move forward
with full participation. My understanding is that the FRA canceled the
January 24, 2024, meeting because of room scheduling issues. Why has
DOT not been able to schedule such a vital meeting, especially as my
understanding is this meeting can be done virtually? Will you commit to
holding this meeting and when can we expect it to happen?
Answer. Following the Norfolk Southern derailment in East
Palestine, OH, the Secretary reaffirmed the Department's commitment to
enhancing freight rail safety through certain FRA actions and called
upon Congress and the freight railroad industry to take steps to
improve safety across the nation, including calling on all Class I
railroads to join FRA's Confidential Close Call Reporting System
(C3RS). While all have committed to joining, discussions are ongoing.
Although a meeting of the RSAC C3RS Working Group scheduled on January
24, 2024 was cancelled by the meeting host due to unscheduled required
audio/visual upgrades in the meeting room, that meeting was re-
scheduled and took place on February 21, 2024, in the same location in
Irving, TX.
FRA held the first RSAC C3RS meetings in March 2023, and FRA's
subject matter experts have held numerous meetings with each Class I
and the railroad unions, as well as additional RSAC working group
meetings. Administrator Bose has sent letters and talked with the Class
I leaders about making good on that commitment. C3RS has proven
effective on the 27 railroads participating prior to this hearing, and
FRA remains working with the stakeholders to implement this commitment.
Following the Subcommittee's hearing on January 18, Norfolk
Southern (NS) and FRA announced a pilot program to begin implementing
C3RS with some NS employees, and BNSF Railway, the American Train
Dispatchers Association, and FRA announced a separate pilot program in
April 2024. FRA is committed to seeing all Class I railroads join the
C3RS program and will take all action to see this accomplished without
compromising the program. Research has shown that this program works to
reduce collisions, injuries, and deaths because it encourages
corrective action.
Question 5. Recently the University of Illinois Rail Transportation
and Engineering Center presented their ongoing research that is looking
at the impacts of long trains on derailments. They found the operation
of longer trains results in less cars being derailed, as compared to
shorter trains. It is my understanding that this is just the first part
of the research this team is doing on the topic. Are you familiar with
this research and if so, will you commit to reviewing such research and
ensuring that when the FRA is considering new regulations it will rely
on such data when making regulatory decisions?
Answer. While there is currently no Federal regulation restricting
train length, nor much data reported regularly on train length, FRA is
aware the Class I freight railroads have increased train length in
recent years and that there are different complexities associated with
operating longer trains compared to shorter trains. Given this, FRA
continues to monitor their operation. FRA has taken, and is taking,
several relevant actions.
The Bipartisan Infrastructure Law (BIL) directed FRA to require
railroads to report train length in their monthly accident data
reports. The first month of reporting (December 2023) became available
in March 2024. BIL also directed FRA to work with the National
Academies to study train length, and the NAS anticipates publishing
their report this fall. Additionally, FRA submitted 30-day notice to
the Federal Register for an Information Collection Request on operation
of trains to inform potential complexities and safety concerns
associated with operating longer trains, and FRA will begin collecting
data in June based on railroad reporting from May. FRA will also soon
publish its study of the effects of long train operations on braking
effectiveness, which includes input from labor, railroads, and
suppliers. Finally, based on Class I incidents, FRA published Safety
Advisory 2023-02 Train Makeup and Operational Safety Concerns on April
11, 2023, and Safety Advisory 2023-03 on Accident Mitigation and Train
Length on May 2, 2023. FRA will continue to monitor the impact to
safety of operating long trains, including through data it collects and
that others publish, including available research.
Question 6. Twice last year the illegal migrant crisis at the
Southern Border forced the shutdown of major railroad lines critical to
the United States supply chain. The shutdowns had tremendous impacts
not only on commerce and the supply chain but put railroad workers in
danger.
Question 6.a. Can you discuss the negative impact of the illegal
migrant crisis on the railroad industry and what FRA is doing to help
the situation?
Question 6.b. Does FRA have a plan for border rail traffic as well
as a plan in the event of another shutdown of international rail
crossings?
Question 7. Can you please explain the cause of the freight
railroad shutdowns in September and December 2023 in Eagle Pass, Texas,
and El Paso, Texas? Did the Administration consult with you? What was
your posture and recommendation?
Answer to 6.a., 6.b., & 7. I would refer you to our federal
partners at Customs and Border Protection (CBP). To the extent this
issue arises in the context of FRA activities concerning the safety of
the rail system itself, we stand ready to cooperate and coordinate with
the railroads, and our state, local, and federal partners. FRA waivers
are in place at the Eagle Pass and El Paso border crossings that allow
Union Pacific at Eagle Pass and BNSF at El Paso to operate trains
received in interchange at the border up to 14 miles into the U.S.
before performing complete, comprehensive Class I brake tests on the
trains. These waivers are subject to several conditions designed to
ensure the safety of the operation into the U.S. and these waivers do
not authorize the use of non-U.S. crews to operate the equipment. For
further information on these waivers see FRA Docket Numbers FRA-2007-
28952 and FRA-2007-28812.
Additionally, railroads are responsible for maintaining the
security of their trains and operations, and federal jurisdiction in
this area falls to our partners in the Department of Homeland Security
and Transportation Security Administration. Only railroad employees or
other authorized personnel should be on freight trains. It is FRA's
understanding that CBP did not allow migrants trespassing on freight
trains from Mexico to remain onboard as trains entered the United
States.
While AAR reports [https://www.aar.org/issue/el-paso-eagle-pass-
crossings/] an estimated $200 million per day in lost value of goods,
wages, and transportation costs in the event of a border crossing
closure at El Paso and Eagle Pass, based on analysis of Bureau of
Transportation Statistics (BTS) TransBorder data [https://
explore.dot.gov/views/Dashboard_PortbyCommodity/Overview?%3Aembed=y&
%3Aiid=1&%3AisGuestRedirectFromVizportal=y], the average daily value of
goods moving via rail over those two crossings accounts for about half
of that at just over $100 million per day. The actual daily impact of a
given closure will vary depending on the time of the year, the length
of the closure, and the ability of a given border crossing to make up
for lost time when the crossing opens again. For example, analysis of
BTS Border Crossing data [https://data.bts.gov/Research-and-Statistics/
Border-Crossing-Entry-Data/keg4-3bc2/data] suggests that the five-day
closure in December did not have a significant impact on volume at
Eagle Pass for the total month of December, while the impact to El Paso
may have been greater than the daily average volume of traffic. (See
graphs below for Eagle Pass and El Paso.)
Question 8. How does the FRA Safety Board fulfill and review the
requirements of 49 C.F.R. Sec. 211.41 when it is considering waivers
for Automated Track Inspection (ATI) technology, including the nine-
month timeline under that regulation?
Question 8.a. Does FRA have adequate resources and staff to timely
evaluate and decide railroad waiver requests?
Question 8.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.
Question 9.a. Does FRA believe any deficiencies existed in the
transparency of the ATI waiverprocess prior to January 20, 2021?
Question 9.b. If so, what specific steps has FRA taken to improve
the transparency in the process?
Question 10. How does the FRA interact with stakeholders to ensure
the efficient handling of ATI waiver requests? Please also provide a
list of individuals or entities that the FRA views as stakeholders in
this space.
Answer to 8., 8.a., 8.b., 9.a., 9.b., & 10. The Department fully
supports the development and deployment of new technologies to improve
railroad safety. However, it is also important that the human element
of railroad safety be maintained, as technology cannot supplant the
expertise and judgement of human eyes and ears on the ground. The
railroads can deploy Automated Track Inspection (ATI) technologies
today; nothing is stopping them. Track defects are some of the most
frequent causes of derailments, and FRA believes that ATI technology
holds great promise, but visual inspections remain vitally important.
ATI is incapable of detecting many structural defects and issues,
including roadbed, vegetation, tie condition, and track component
defects, such as switches, derails, and broken rails, which occur
primarily in turnouts and rail-to-rail crossings.
Over the years, the use of automated track inspection technologies,
in addition to visual inspections, has helped drive down the number of
track-caused derailments. Today, every Class I railroad uses some form
of ATI. The Department encourages railroads to deploy new inspection
technologies without seeking permission to reduce human inspections; we
need both to keep our nation's railroads safe.
FRA interacts with stakeholders to ensure the efficient handling of
ATI waiver requests through its well-established notice and comment
process required by statute and outlined in FRA's Rules of Practice (49
CFR Part 211). See also FRA Guidance on Submitting Requests for
Waivers, Block Signal Applications, and Other Approval Requests
[https://railroads.dot.gov/elibrary/guidance-submitting-requests-
waivers-block-signal-applications-and-other-approval-requests].
Question 11. What steps is the FRA taking to encourage and support
implementation of new technologies to improve safety for freight
railroads? Please provide specific examples of areas the FRA is
examining as well as specific technologies that are under examination.
Answer. FRA is committed to implementing the Department's
Innovation Principles, and technology plays a key role, as do workers.
FRA has a long history of working with railroads and the supply
industry to develop, test, verify and validate technology solutions, as
well as evaluating comments from labor organizations, other
stakeholders and the public when evaluating technology for approval to
operate. FRA's regulations provide a range of options for technology
testing, from 49 CFR Sec. 211.51, which is designed to provide a
method for testing and evaluating the effectiveness of new technology
or operational approaches, to a Notice of Product Development or
Development Plan as described in 49 CFR Part 236, Subparts H and I,
respectively. 49 CFR Part 236 also outlines a process for the approval
of new technology.
FRA's Office of Railroad Safety provides technical assistance and
oversight of technology development, attending design reviews,
providing subject matter expertise, observing testing, and ultimately
approving a railroad's request for use of new technology in revenue
operations. FRA's support to the industry's successful implementation
of Positive Train Control (PTC), a development and implementation
process covering more than a dozen years, is an example of this
coordination and cooperation.
In recognition of industry's efforts to develop new technology in
support of safety and efficiency improvements, the Office of Railroad
Safety created the Engineering and Technology (ET) Division in FRA's
Office of Railroad Systems and Technology. The ET Division mission
statement is to promote railroad safety by leading in the development,
coordination, and implementation of new technology across the railroad
industry, including evaluation of technology with respect to existing
and new regulations. The ET Division utilizes systems engineering
concepts to aid in the development of innovative and unified safety
systems, many of which encompass multiple disciplines, and support
railroads throughout the lifecycle of technology development.
Over the last two years, the ET Division has acted as the lead
office within FRA providing technical assistance and program oversight
to a range of new technology projects led by the railroad industry.
Examples of several active projects are:
Vision-based mechanical inspection portal utilizing
machine learning and artificial intelligence;
Laser sensor intrusion detection in support of grade
crossing and trespass safety improvements;
3D laser triangulation and convolutional neural network
algorithms that provide improved imaging of track defects collected by
ATI cars;
Grade crossing activation and shunting advancements using
vital axle counters;
Alternative fuels and power sources, including green
hydrogen (H2), electrification, and batteries, in support of
decarbonization;
Single car freight transportation system, using battery
powered drones, providing short distance transportation (potentially
serving highly congested areas, such as ports); and
Technology alternatives to support high-speed passenger
operations, including the use of innovative international equipment and
technology for locomotives, passenger cars, and signaling and train
control.
Additionally, the FRA Office of Research, Data, and Innovation
performs critical work to evaluate and test railroad safety technology
at the FRA Transportation Technology Center (TTC) in Pueblo, CO. As
part of this effort, FRA is currently restoring and improving TTC's
research and testing laboratory for use in the development of current
and future safety, security, and efficiency improvements for railroad
operations. FRA also plans to develop a wayside test bed that will be
used for assessing detectors and their implementation (e.g., detector
frequency to determine appropriate detection intervals).
Other work at TTC includes FRA establishing the capability to
develop and test ``next generation'' communication-based train control
system building on the PTC technology. This technology includes precise
locating Head of Train (HOT) and End of Train (EOT), broken rail
detection, object detection and classification, and Rail Crossing
Vehicle Warning technology.
In the year following the Norfolk Southern derailment in East
Palestine, Ohio, there has been renewed attention, including by
Congress, in tank car safety standards and requirements. FRA conducts
its Tank Car Crashworthiness and Safe Transportation of Energy Products
research at TTC, including the following activities:
FRA is conducting puncture testing using the pendulum
impact machine and related simulations to better understand the
performance of different welds on tank cars.
FRA is continuing a research program designed to provide
the technical basis for rulemaking on enhanced and alternative
performance standards for tank cars, and the review of new and
innovative designs, by performing full-scale impact tests on different
tank cars and validating the finite element models used to evaluate the
puncture performance of several tank cars used to transport hazardous
materials.
FRA is assessing the effect of both train handling and
combination track perturbations on tank car behavior using an
instrumented tank car to collect coupler forces for various coupling
conditions, which will allow a better understanding on the load
environment the tank cars are subject to during transportation.
FRA is developing and testing a system that uses rapid
airbrake propagation devices (RAPiD) placed along a train to improve
stopping distances when the brakes are activated by a locomotive
engineer.
Question 12. Another promising safety innovation, which was
particularly important during the COVID pandemic, is 3-Dimensional
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 the FRA's reason for the reversal.
Answer. FRA agrees that 3-D virtual training is a promising safety
innovation. As it has in the past, FRA continues to support the use of
advanced technologies in connection with the training of railroad
employees. Currently, four railroads have ongoing waivers allowing for
the use of virtual, simulated training to meet the requirements for
``hands-on'' periodic refresher training for certain personnel.\5\ FRA
believes the technologies railroads are using for this training offer
promising potential, especially when used to refresh employees'
existing skill sets. FRA recognizes, however, that a multitude of
factors impact the effectiveness of such training (e.g., availability
of instructor feedback, specific methods of implementation, level of
engagement of the employee).
---------------------------------------------------------------------------
\5\ See FRA Docket Nos. FRA-2018-0100, FRA-2020-0001, FRA-2020-
0008, and FRA-2020-0087.
---------------------------------------------------------------------------
FRA evaluates every waiver request individually and in the case of
the waiver requests FRA denied in 2023,\6\ FRA found that the safety
justifications provided by the petitioners were lacking. For example,
in one waiver request, the petitioning railroad sought to expand its
use of simulated training, but that railroad had not yet fully
implemented the relief FRA previously provided.\7\ In a second waiver
request, FRA found that the proposed training limited an instructor's
ability to monitor employee behavior during the training, compared to
how other railroads have implemented virtual training.\8\ Notably, with
regard to this second waiver request, following FRA's denial of the
railroad's initial request, the railroad engaged with labor
stakeholders, and those stakeholders subsequently filed comments with
FRA supporting the railroad's waiver request if certain conditions were
met.\9\ Additionally, as FRA explained in each decision letter,
consistent with FRA's Rules of Practice,\10\ in order to continue to
expand the use of virtual, simulated training under the conditions
requested, FRA asked that each petitioner articulate a data-based
safety case that objectively demonstrates an equivalent or improved
level of safety through the use of the proposed virtual, simulated
training. In each decision letter, FRA outlined potential methods of
articulating such a safety case.
---------------------------------------------------------------------------
\6\ See FRA Docket Nos. FRA-2018-0100 (FRA denied a request from NS
to expand certain aspects of the existing relief in this docket), FRA-
2020-0087, and FRA-2021-0042.
\7\ https://www.regulations.gov/document/FRA-2018-0100-0015.
\8\ https://www.regulations.gov/document/FRA-2020-0087-0006.
\9\ https://www.regulations.gov/comment/FRA-2020-0087-0017.
\10\ 49 CFR Sec. 211.9.
Question 13. 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 the change.
Question 13.a. Prior to this change, were stakeholders consulted?
If yes, please explain which stakeholders and the method for
consultation.
Question 13.b. Please explain what steps have been taken to notify
stakeholders of these changes. If notice has not been provided, please
justify this failure to communicate.
Question 13.c. Provide specific examples of freight railroad
technologies being explored by the FRA that provide environmental
benefits.
Answer to 13., 13.a., 13.b., & 13.c. Locomotive energy management
systems are an important tool used by railroads to optimize train
handling, reduce fuel usage, and minimize emissions. Since the early
2000s, railroads have been using energy management systems to control
the throttle and dynamic brakes of a locomotive, similar to a ``cruise
control'' system installed in a car. The energy management system uses
a map of the track profile, as well as other input variables such as
train length, tonnage, car types, etc., to achieve control, fuel, and
emission benefits. More recently, developments in energy management
systems have included interfacing with the locomotive air brakes and
the onboard positive train control (PTC) system. These developments
provide the energy management system more precise control of the train
through the airbrakes as well as additional information regarding the
signals ahead, which allows the train to slow prior to a red signal and
provides further control, fuel savings and environmental benefits.
CSX has proposed an energy management system that is intended to
interface with both a train's airbrakes and the onboard PTC system.
Because the system will interface with a train's airbrakes, FRA has
determined that system is safety-critical as defined under 49 CFR Sec.
229.305,\11\ and is therefore subject to FRA review and approval under
49 CFR Part 229, Subpart E--Locomotive Electronics (Subpart E). Subpart
E requires technical analysis of the safety impact of the energy
management system prior to introduction into service. FRA's review and
approval process under Subpart E is technical in nature, and Subpart E
does not specifically require stakeholder consultation. Further, given
that the proposed energy management system will also interface with the
PTC system, FRA is also evaluating whether the energy management system
comingles with safety critical processor based signal and train control
systems. If the system is found to commingle with the safety critical
processor based signal and train control system, Subpart E requires
that system to be regulated under 49 CFR Part 236, Subparts H and I.
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\11\ Safety-critical, as applied to a function, a system, or any
portion thereof, means the correct performance of which is essential to
safety of personnel or equipment, or both; or the incorrect performance
of which could cause a hazardous condition, or allow a hazardous
condition which was intended to be prevented by the function or system
to exist.
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FRA is currently awaiting a final submission of the safety analysis
required under Subpart E for this proposed system prior to making any
determination with regard to comingling with the PTC system and whether
review under Subparts H and I is necessary.\12\
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\12\ CSX's test request and initial risk analysis is available in
Docket Number FRA-2010-0028 on www.regulations.gov.
---------------------------------------------------------------------------
FRA has coordinated with railroads and suppliers throughout the
development of railroad energy management systems (non-safety
critical), including monitoring testing of these system on the general
railroad system as part of FRA's safety oversight. As energy management
systems have developed, including the most recent developments relating
to controlling the air brakes and interfacing with the PTC system, FRA
has observed testing at the Pueblo, Colorado, test facility and advised
railroads and suppliers through meetings and phone discussion of the
safety-critical designation and the related regulatory impact of such
designation. FRA has and continues to provide technical assistance in
the development of the safety analyses required under Subpart E, with
the most recent engagement preceding this hearing in December 2023.
On August 22, 2021, CSX Transportation (CSX) submitted its Test
Request for Trip Optimizer Air Brake Control (TO Air Brake Control),
Revision 1, dated August 22, 2021, to FRA. CSX asks FRA to approve its
Test Request so that it may test its TO Air Brake Control on track that
has been equipped with a PTC system. A Federal Register notice \13\ was
published on October 21, 2021, providing a notice of availability and
request for comments. Three public comments were received. This test
approval is still under FRA review, awaiting the safety analysis
described above.
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\13\ 86 FR 58389 (available at https://www.govinfo.gov/content/pkg/
FR-2021-10-21/pdf/2021-22913.pdf).
---------------------------------------------------------------------------
The freight rail industry is exploring a number of additional
technologies that provide environmental benefits. Among these are
primarily the fuel choice to power locomotives: the rail industry is
actively exploring hydrogen as a locomotive fuel with demonstrative
projects and testing of hydrogen powered locomotives, conducting
research with the Department of Energy (DOE), and deploying pilot
projects supported by FRA and DOE. In addition, the rail industry,
mostly short lines, submitted CRISI grant applications for battery-
electric switcher locomotives, of which 15 locomotive replacements were
selected. This is a new technology and will reduce EPA criteria
pollutants in rail yards and impacts to surrounding communities where
they are deployed. The industry is also exploring increasing the
efficiency of locomotives and operational efficiencies to reduce
greenhouse gas emissions, fuel use, and pollution. In addition, the
rail industry also seeks to reduce waste from used rail ties, seeking
methods where used wooden rail ties can be converted to bio-char, a
soil amendment that can store carbon, creating not only a benefit from
reduced waste streams, but also creating benefits for storing carbon.
Question 14. Last year FRA awarded over $3 billion to the
California High Speed Rail project.\14\ The project has been
notoriously plagued by delays and cost overruns and is now estimated to
cost well over $100 billion with no known completion date. How does the
FRA justify investing billions of dollars in a doomed project as a good
use of taxpayer money?
---------------------------------------------------------------------------
\14\ Press Release, California High-Speed Rail Authority, High-
Speed Rail Authority to Receive Record $3.1 Billion From Biden
Administration, (Dec. 5, 2023), available at https://hsr.ca.gov/2023/
12/05/news-release-high-speed-rail-authority-to-receive-record-3-1-
billion-from-biden-administration/.
---------------------------------------------------------------------------
Answer. The California-High Speed Rail (CHSR) Program is a
pioneering high-speed rail program in the United States, the first
under construction. The challenging experience as the first high-speed
rail project in the U.S. to go to construction is analogous to other
countries' experience when building their first high-speed rail
corridors. FRA is engaging in active and robust oversight on budget and
scope to ensure best use of public financing, including:
Our recent selection of tasks for the CHSR project, where
we funded specific components (such as Trainsets and ancillary
facilities, and design/construction south to Bakersfield) with specific
purposes.
Holding quarterly meetings among our organizations'
leadership to review progress and areas for improvement.
Holding monthly risk assessment meetings to review
enterprise and project-level risk registers, and FRA risk assessment
and validation of the California High Speed Rail Authority (CHSRA) risk
review work (focusing on cost and schedule), in accordance with FRA's
Capital Project Guidance.
Consistent FRA Railroad Development and Safety Offices
engagement to review construction progress.
Working with CHSRA's newly appointed Inspector General.
Inspection and leadership review trips in May 2023 and
February 2024.
Phased funding of the project (i.e. FY10 HSPIR funding
only available after completion of ARRA scope; Phased Funding Agreement
for FSP-National award of $3.1B).
Additionally, FRA is taking steps to support the development of
high-speed intercity passenger rail, including newly proposed standards
for high-speed trainsets and guidance for advancing high-speed rail
projects, and providing technical assistance on domestic sourcing and
compliance with Buy America.
Question 15. This year, the California Air Resources Board intends
to seek Environmental Protection Agency (EPA) approval for new
emissions regulations that would effectively require all operators to
replace most of their existing fleet's locomotives.\15\ Many of these
existing locomotives have decades remaining of useful life. The
California Air Resource Board even acknowledges that some short line
railroads would be eliminated despite the potential availability of
both state and Federal grants.
---------------------------------------------------------------------------
\15\ California Air Resources Board, Reducing Rail Emissions in
California, (last accessed Feb. 2, 2024), available at https://
ww2.arb.ca.gov/our-work/programs/reducing-rail-emissions-california.
---------------------------------------------------------------------------
Question 15.a. Has FRA weighed in on this proposal and its
potential effect on rail networks and safety?
Question 15.b. Holding all else constant, would not a reduction in
short line service result in more freight moving by other modes such as
trucking?
Answer to 15.a. & 15.b. The mission of the FRA is to enable the
safe, reliable, and efficient movement of people and goods for a strong
America, now and in the future. FRA will continue to work with the
short line industry to provide grant funding and the necessary support
to meet all regulatory requirements. Specifically, FRA is supporting
the short line industry in efforts to reduce emissions through its
Locomotive Replacement Initiative (LRI), which utilizes Consolidated
Rail Infrastructure and Safety Improvements (CRISI) grant funds for the
purchase of cleaner locomotives, including zero-emission switcher
locomotives for the short line industry. Fiscal Year 2022 CRISI awards
will replace dozens of the worst polluting locomotives with cleaner
ones, including the award for the acquisition of 15 battery-electric
switcher locomotives, reducing emissions, modernizing the locomotive
fleet, and supporting innovative technology deployment in the short
line industry. The Fiscal Year 2023-24 CRISI Notice of Funding
Opportunity (NOFO) was published on March 29, 2024.
Additionally, FRA supports the rail industry through research and
development of clean energy solutions. Most recently, FRA's Offices of
Railroad Safety, and Research, Data and Innovation hosted an
international workshop on rail decarbonization from May 15-18, 2023, in
Denver, CO. The workshop convened in-person discussions between U.S.
and international rail and clean energy experts on rail decarbonization
technologies and strategies. Assuring the development and safety of new
locomotive technologies is an essential element of the LRI, as safety
is a key role for FRA in assisting the industry as it adopts
technologies that allow the short line industry to remain competitive
while other modes of transportation, such as trucking, decarbonize and
modernize their fleets.
Questions to Hon. Amit Bose, Administrator, Federal Railroad
Administration, from Hon. Donald M. Payne, Jr.
Question 1. What safety actions has the Department of
Transportation taken since the Norfolk Southern derailment in East
Palestine, Ohio?
Answer. Federal Railroad Administration (FRA) staff, along with
Pipeline and Hazardous Material Safety Administration (PHMSA) staff,
were on the ground hours after the derailment, supporting the National
Transportation Safety Board's (NTSB) investigation and initiating FRA's
own investigation. In addition to the near-constant presence of FRA
safety personnel at the site, senior Departmental officials, including
Secretary Buttigieg, FRA Administrator Amit Bose, and PHMSA Deputy
Administrator Tristan Brown, all visited the East Palestine community
multiple times in the immediate aftermath of the derailment:
The FRA Administrator and PHMSA Deputy Administrator on
February 22: Alongside colleagues from NTSB, and others, joined an
inspection of the tank cars involved in the NS derailment and held a
roundtable with railroad workers and firefighters who responded to the
incident.
The Secretary, FRA Associate Administrator for Railroad
Safety and Chief Safety Officer, and PHMSA Deputy Administrator on
February 23: Met with local officials, toured the accident site, and
were briefed by FRA and PHMSA officials on the progress of the agency's
preliminary on-site investigation.
The FRA Administrator returned on March 1: While there,
the Administrator announced targeted inspections, including track
inspections on routes that carry hazardous materials, which started in
East Palestine and expanded nationwide. FRA published a summary report
[https://railroads.fra.dot.gov/elibrary/high-hazard-flammable-train-
route-assessment-legacy-tank-car-focused-inspection-program] of this
work in January 2024.
FRA's on-scene response, however, was only the first step in its
response to that accident, and FRA is instituting appropriate
enforcement actions to address identified violations of the rail safety
regulations related to the East Palestine accident.
NTSB issued its preliminary report on the NS derailment in East
Palestine, on February 23, 2023. The preliminary report indicated that
future NTSB investigative activity will focus on the wheelset and
bearing; tank car design and derailment damage; a review of the
accident response, including the venting and burning of the vinyl
chloride; railcar design and maintenance procedures and practices; NS
use of wayside defect detectors; and NS railcar inspection practices.
FRA and PHMSA participated in NTSB's East Palestine field hearing June
22-23, 2023.
More broadly, FRA has taken numerous safety actions and made
unprecedented investments in rail infrastructure since the derailment
in East Palestine, OH, to increase freight rail safety across the
country. In the year following the derailment, FRA utilized its
rulemaking authority, drew attention to safety concerns, and undertook
new, focused efforts to protect workers and communities from harm.
FRA's actions are aimed not only at addressing safety concerns
highlighted by the East Palestine accident, but to promote a safer
national rail network.
The Secretary called on the freight rail industry and Congress to
take immediate steps to improve the country's rail safety posture and
reaffirmed the Department's commitment to enhancing freight rail safety
through certain FRA actions. In the succeeding year, we have made
substantial progress on those departmental commitments, moving forward
on rulemakings and awarding grant funds, undertaking a nationwide
assessment of high-hazard flammable train routes and a focused
inspection of tank car phase out, and tasking RSAC to consider braking
enhancements and industry's use of wayside detectors. In June 2023, FRA
announced the award of more than $570 million in new Railroad Crossing
Elimination (RCE) program funding for 63 projects in 32 states, and in
September 2023, FRA announced the award of more than $1.4 billion in
Consolidated Rail Infrastructure and Safety Improvements (CRISI)
program funding for 70 projects in 35 states.
The Secretary also called upon the freight railroad industry to
take steps to improve safety across the nation, including calling on
all Class I railroads to join FRA's Confidential Close Call Reporting
System (C3RS), and all Class I railroads committed to joining. Research
has shown that this program works to reduce collisions, injuries, and
deaths because it encourages corrective action. FRA's subject matter
experts have held a series of meetings with each Class I, the railroad
unions, and RSAC working group meetings, and Administrator Bose has
sent letters and talked with the Class I leaders about making good on
that commitment. C3RS has proven effective on the 27 railroads
participating prior to this hearing, and FRA continues to work with
stakeholders to implement this commitment. Following this committee
hearing, NS and FRA announced a pilot program to begin implementing
C3RS with some NS employees, and BNSF Railway, the American Train
Dispatchers Association, and FRA announced a separate pilot program in
April 2024.
Additionally, in 2023, FRA issued seven safety advisories, one
supplemental advisory, and seven safety bulletins addressing critical
safety items, such as wayside detectors; train makeup and length and
related operational safety concerns; and extreme weather events.\16\
---------------------------------------------------------------------------
\16\ Safety Advisories 2023-01 through 2023-07 and Safety Bulletins
2023-01 through 2023-07 are available online in FRA's eLibrary at
https://railroads.dot.gov/elibrary-search.
---------------------------------------------------------------------------
FRA also has begun the process of conducting comprehensive
assessments of the safety culture, practices, and regulatory compliance
of each Class I railroad. Although each railroad will be evaluated
individually and, as necessary, asked to develop corrective actions in
response to any resulting FRA recommendations, FRA will assess any
resulting issues, trends, and commonalities across all railroads
reviewed. FRA intends to complete safety culture assessments of all
Class I railroads by the end of CY 2024.
FRA also is engaged in ongoing, multifaceted research on long
trains, including research focused on the braking capabilities of long
trains, and human factors related to the safe handling of those trains.
FRA also is pursuing a broad regulatory agenda with specific
actions designed to improve rail safety:
On October 12, 2023, FRA published a final rule requiring
the use of inward- and outward-facing locomotive image recording
devices on all lead locomotives in passenger trains.
On April 9 2024, FRA published a final rule addressing
Train Crew Size Safety Requirements after consideration of over 13,000
public comments received in response to the proposed rule. The rule
establishes safe minimum requirements for the size of train crews
depending on the type of operation and formalizes the agency's role in
reviewing and ensuring railroads complete thorough risk assessments
before using fewer than two persons to crew certain trains.\17\
---------------------------------------------------------------------------
\17\ 89 FR 25052 (available at https://www.regulations.gov/
document/FRA-2021-0032-13200).
---------------------------------------------------------------------------
On January 26, 2024, FRA published a final rule requiring
certain freight trains to be equipped with emergency escape breathing
apparatus.
FRA is also in the process of developing final rules on:
(1) certification of railroad dispatchers and signal employees; and (2)
clarification of existing training, qualification, and oversight
requirements for safety-related railroad employees.\18\
---------------------------------------------------------------------------
\18\ See Agency Rule List--Fall 2023, Department of Transportation
(available at https://www.reginfo.gov/public/do/
eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_
LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=2100&csrf_tok
en=4B6C
8E6D5DA187CC1576EB7CA19BD2CE1B03E7D4505A19FF60EA37595BF5D8444FA39
CCF60CC959DA497614E739D8B2C4C4E).
PHMSA continues to support the investigations of the NTSB and FRA,
has made more than $30 million in funding available through PHMSA's
Hazardous Materials Grants Program to train first responders and
strengthen safety programs, and issued four safety advisories last year
to: (1) encourage the use of steel manway covers; (2) emphasize the
importance of railroad emergency planning and preparedness; (3) request
that tank car owners and shippers of flammable liquids voluntarily
utilize the best available tank car, the DOT-117, as soon as possible;
\19\ and most recently, (4) encourage the use of real-time train
consist information in 9-1-1 call centers.\20\ In the most recent
safety advisory, PHMSA, in coordination with FRA, urges 9-1-1 call
centers to train on and use technologies that are designed to provide
critical information to first responders in the event of a rail
incident.\21\
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\19\ On August 15, 2016 (81 FR 53935), PHMSA published a regulation
requiring that DOT-111 tank cars be phased out and replaced with the
DOT-117 tank car. PHMSA works with the Bureau of Transportation
Statistics to provide an annual report documenting the industry's
progress in phasing out the older, DOT-111 tank cars.
\20\ Safety Advisory Notice for Tank Cars Equipped with Aluminum
Manway Protective Housing Covers (March 2, 2023) (available at https://
www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2023-
03/PHMSA%20Safety%20Advisory%20-%20Tank%20Car%20Aluminum%20Manway
%20Covers.pdf); Safety Advisory Notice for Railroad Emergency
Preparedness (March 3, 2023) (available at https://www.phmsa.dot.gov/
sites/phmsa.dot.gov/files/2023-03/PHMSA%20Safety
%20Advisory%20-%20Railroad%20Emergency%20Preparedness.pdf); Safety
Advisory Notice for DOT-111 Tank Cars in Flammable Liquid Service
(March 22, 2023) (available at https://hazmat.dot.gov/news/safety-
advisory-notice-dot-111-tank-cars-flammable-liquid-service); and Safety
Advisory Notice Encouraging the Use of Real-Time Train Consist
Information in 9-1-1 Call Centers (July 11, 2023) (available at https:/
/hazmat.dot.gov/sites/phmsa.dot.gov/files/2023-07/
PHMSA%20Safety%20Advisory%20Notice%20-%209-1-1%20Call%20Centers.pdf).
\21\ See, e.g., https://askrail.us/ for additional information on
the AskRail application.
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Additionally, on August 14, 2023, FRA and PHMSA sent a joint letter
to Fusion Center Directors, State Emergency Response Commissioners, and
Tribal Emergency Response Commissioners throughout the United States
encouraging the Fusion Centers, state emergency response commissions,
and tribal emergency response commissions to share information with
local governments and emergency responders so that they have necessary
information to develop emergency preparedness plans.
PHMSA recently published a Notice of Proposed Rulemaking proposing
specific requirements for railroads to generate real-time train consist
information and provide that information to State and local first
responders, emergency response officials and law enforcement personnel
following an accident, incident, or public health or safety emergency
involving the rail transportation of hazardous materials.\22\ Comments
to this proposed rule were due on or before October 27, 2023.\23\ PHMSA
is in the process of completing comment analysis and developing a final
rule, which is projected to be published by the end of October 2024.
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\22\ 88 FR 41541 (June 27, 2023).
\23\ 88 FR 55430 (Aug. 15, 2023).
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For its part, when notified of a significant rail incident, FRA
strives to coordinate with all affected stakeholders, including
notifying the relevant Congressional offices, as soon as possible.\24\
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\24\ Please note that when the National Transportation Safety Board
(NTSB) responds to a rail incident, by statute it is the lead agency,
and as such, FRA will defer to NTSB on communications with local and
State officials.
---------------------------------------------------------------------------
Although FRA encourages local and state officials with concerns or
questions related to rail operations in their jurisdictions to engage
in direct dialogue with the involved railroads, FRA's Office of
Government Affairs and Safety Management Teams are available to assist
as needed. FRA's Office of Government Affairs may be contacted at
[email protected], and contact information for FRA's Safety Management
Teams is available at https://railroads.dot.gov/railroad-safety/
divisions/regional-offices/safety-management-teams.
Question 2. What steps can you take to assure railroad employees
that they will not face discipline for raising safety concerns?
Answer. When railroad employees raise safety concerns to FRA, at
the employee's request, FRA keeps that employee's identity
confidential. When railroad employees raise safety concerns within
their organizations, they are protected by the whistleblower
protections of 49 U.S.C. Sec. 20109. That statute, enforced by the
Occupational Safety and Health Administration (OSHA), protects railroad
employees from retaliation for reporting unsafe conditions, safety
violations or on-the-job injuries, as well as for refusing to work
under certain unsafe conditions or participating in a safety
investigation. Although OSHA is statutorily responsible for enforcing
the protections of 49 U.S.C. Sec. 20109, through a longstanding
Memorandum of Agreement, FRA and OSHA work together to facilitate
coordination and cooperation concerning Section 20109's employee
protection provisions.
Additionally, as of this hearing, 27 railroads participate in FRA's
Confidential Close Call Reporting System (C3RS) program, which has
proven successful in reducing collisions, injuries, and deaths and
encouraging corrective action. Importantly, when NASA accepts a close
call report under the C3RS Program, employees are protected from
disciplinary action, certification revocation, and FRA civil
enforcement related to that event.
Question 3. Four months before the Norfolk Southern derailment in
East Palestine, the railroad erroneously reported the extent of a train
accident to both the National Response Center and the FRA.
Question 3.a. What penalties exist when a railroad does this?
Question 3.b. Do you feel these current penalties are sufficient to
deter bad behavior?
Answer to 3.a. & 3.b. Timely and accurate reporting of accidents
and incidents to the National Response Center (NRC) is essential to
ensuring FRA physically examines and investigates an accident or
incident scene before it is cleared. Following the Norfolk Southern
derailment in East Palestine, I sent a letter to the Chief Executive
Officer of each of the Class I freight railroads reiterating the types
of accidents and incidents requiring immediate reporting to the NRC. If
a railroad makes a late or inaccurate report, FRA may not be able to
conduct the thorough and comprehensive investigation and analysis of
the circumstances of an accident or incident to identify safety issues
and potential solutions to those issues.
Civil fines are one of several tools FRA uses to secure compliance
with federal rail safety laws. FRA may impose monetary penalties for
violations of reporting requirements, and, depending on circumstances,
may subject the railroad to enhanced scrutiny of its operating and
reporting practices. The current maximum penalty per violation, even
for an egregious violation involving hazardous materials and resulting
in fatalities, is roughly $225,000. This amount fairly could be
described as a rounding error for a company that reported record annual
operating income in 2022 of $4.8 billion, and has posted operating
margins approaching 40%.
Question 4. In March of 2023, all of the Class I railroads
announced in an AAR press release that they would voluntarily install
approximately 1,000 additional hot box detectors and space them out
every 15 miles on key routes. Some employees at Union Pacific have
raised concern that inoperative hot box detectors have not been
prioritized for ``repair without undue delay'' as committed to 10
months ago. Does having inoperable hot box detectors present a safety
concern? What ability does FRA have to hold the railroads accountable
for these commitments?
Answer. FRA regulations do not require the use of hot box detectors
(i.e., hot bearing wayside detectors), and as a result, there are no
Federally-mandated inspection and maintenance standards applicable to
those detectors. Accordingly, in the wake of the Norfolk Southern (NS)
derailment in East Palestine, OH, FRA published Safety Advisory 2023-01
on the evaluation of policies and procedures related to use and
maintenance of hot bearing wayside detectors.
Secretary Buttigieg also committed the Department to conducting a
focused inspection program on routes over which high-hazard flammable
trains (HHFTs) and other trains carrying large volumes of hazardous
material travel. (See summary report here [https://
railroads.fra.dot.gov/elibrary/high-hazard-flammable-train-route-
assessment-legacy-tank-car-focused-inspection-program].) Although hot
box detectors are not regulated, as part of the HHFT assessment, FRA
inspectors identified a dozen different types of wayside detectors in
use in the railroad industry (including hot box detectors), amounting
to more than 2,600 individual wayside detectors on 28 different
railroads, or approximately 16.6% of the 15,860 detectors installed.
FRA found approximately 120 detectors with conditions out of compliance
with the railroad's standards. The conditions identified included both
minor defects and significant safety critical defects, including loose
scanner housings, calibration discrepancies, and inverted transducers,
which would tell the system that a train is moving in the opposite
direction than it is.
In addition to field identification and evaluation of detector
hardware, FRA reviewed issues associated with the use of such
detectors, including installation, maintenance, and training processes,
as well as detector health reporting. FRA found that overall there
appears to be a lack of standardization of installation and maintenance
practices among railroads and even within individual railroads, as
installation and maintenance practices often varied depending on
detector types or who within the railroad organization is responsible
for installation and maintenance (e.g., signal employees, mechanical
employees).
FRA found that generally railroads closely monitored the
performance of the detector network. This includes oversight and
monitoring of trending alarms, failed communication issues, and overall
detector health. FRA found that all Class I railroads operate a
dedicated wayside detector desk, but the responsibilities of personnel
staffing that desk and the procedures employed by those personnel vary
among railroads.
In addition to the efforts for the HHFT assessment, and recognizing
that when installed, maintained, and utilized properly, wayside
detectors, including hot box detectors, can enhance railroad safety,
FRA tasked the Railroad Safety Advisory Committee (RSAC) to develop
recommendations related to industry's use of wayside detectors. That
RSAC task (Task No. 2023-01) is ongoing and the RSAC working group,
which is made up of railroads, suppliers, and labor organizations, will
consider not only current railroad processes and procedures, but also
current industry standards and historical safety data. The task is
intended to lead to the development of best practices in the use of
wayside detectors that may include recommendations to update existing
regulations and guidance, and/or develop new regulations and guidance
regarding wayside detector equipment and operations.
Question 5. How many safety waivers and for what purpose, by year,
for the last five years, have the Class I railroads requested? How many
of these safety waivers, by year, has the FRA approved, and which ones?
Answer:
Indicates Petition for Reconsideration pending under 49 CFR
Sec. Sec. 211.41(e), 211.59.
----------------------------------------------------------------------------------------------------------------
Incoming Request Date Docket Number Petitioner Description Decision
----------------------------------------------------------------------------------------------------------------
2019--26 requested, 23 approved.................................................................................
----------------------------------------------------------------------------------------------------------------
1/29/2019....................... FRA-2019-0003..... CN................ In train wheelset Approved with
replacement. Conditions
2/13/2019....................... FRA-2019-0040..... BNSF.............. Constant warning Dismissed
time.
3/3/2019........................ FRA-1999-5756..... CN................ Car-body type Approved with
locomotives that Conditions
are not equipped
with a brake
valve adjacent to
each end exit
door.
4/3/2019........................ FRA-2004-17989.... CP................ Blue signal Approved with
protection. Conditions
4/9/2019........................ FRA-2015-0019..... NS................ Stop/start rail Approved with
testing. Conditions
4/10/2019....................... FRA-2013-0085..... UP/BNSF........... Passenger trains Approved with
with failed ATS, Conditions
ATC, or ACS in
equipped
territory.
4/24/2019....................... FRA-2019-0066..... Amtrak............ Tier III, Safety Approved with
appliances, Rock Conditions
Island
(exemption).
4/26/2019....................... FRA-2003-14408.... UP................ Blue signal Approved with
protection. Conditions
5/22/2019....................... FRA-2019-0041..... UP................ Autonomous Withdrawn
testing; track
inspection.
6/5/2019........................ FRA-2002-11896.... NS................ RoadRailer Trains Approved with
Conditions
6/7/2019........................ FRA-2019-0046..... NS................ Electronic posting Approved with
of monthly injury/ Conditions
illness log.
6/28/2019....................... FRA-2013-0030..... UP................ Use of automated Approved with
single car test Conditions
devices.
7/16/2019....................... FRA-2018-0083..... BNSF.............. Electronic posting Approved with
of monthly injury/ Conditions
illness log.
8/7/2019........................ FRA-2010-0152 &... Amtrak............ C3RS.............. Approved with
FRA-2012-0054..... Conditions
9/3/2019........................ FRA-2019-0064..... BNSF.............. In-train wheelset Approved with
replacement Conditions
program.
9/13/2019....................... FRA-2014-0048..... UP................ Border operations. Approved with
Conditions
9/19/2019....................... FRA-2018-0100..... NS................ Virtual, periodic Approved with
refresher Conditions
training.
10/3/2019....................... FRA-2016-0086..... CSX............... AFM indicator Approved with
calibration. Conditions
10/14/2019...................... FRA-2014-0124..... Amtrak............ Tier III Equipment Approved with
Conditions
10/24/2019...................... FRA-2007-28340.... UP................ Border operations. Approved with
Conditions
10/28/2019...................... FRA-2019-0089..... NS................ Hand brake Approved with
locations on 9 Conditions
specific flat
cars used in MOW
service.
10/29/2019...................... FRA-2019-0096..... Amtrak............ Pre-revenue Dismissed
service
acceptance
testing.
11/1/2019....................... FRA-2019-0090..... NS................ In-train wheelset Approved with
replacement Conditions
program.
12/9/2019....................... FRA-2019-0105..... KCS............... Periodic testing Approved with
on Conditions
microprocessors.
12/11/2019...................... FRA-2019-0107..... BNSF.............. Transfer train Approved with
brake test. Conditions \\
3/24/2021....................... FRA-2009-0116..... UP................ Periodic testing Denied
schedules--4 year
locking test.
4/20/2021....................... FRA-2021-0042..... UP................ Air brake test Denied
simulator
training.
5/17/2021....................... FRA-2010-011...... NS................ Periodic testing Approved with
schedules--4 year Conditions
locking test.
6/11/2021....................... FRA-2016-0086..... KCS............... AFM indicator Approved with
calibration. Conditions
6/15/2021....................... FRA-2020-0064..... BNSF.............. Expansion on Denied
automated track
inspection waiver.
7/2/2021........................ FRA-2021-0075..... UP................ ATC per 236.566... Dismissed
7/21/2021....................... FRA-2018-0100..... NS................ Virtual periodic Denied
refresher
training.
8/18/2021....................... FRA-2018-0049..... BNSF.............. Expansion of brake Pending
health
effectiveness for
trains in
Colorado and
Nebraska.
9/7/2021........................ FRA-2021-0091..... CN................ High air flow Denied
brakes.
12/15/2021...................... FRA-2016-0018..... UP................ Extended haul Expired while
trains and wheel extension request
temp detectors. pending
----------------------------------------------------------------------------------------------------------------
2022--28 requested, 9 approved..................................................................................
----------------------------------------------------------------------------------------------------------------
1/12/2022....................... FRA-2019-0003..... CN................ In-train wheelset Approved with
replacement Conditions
program.
1/29/2022....................... FRA-2007-28454.... UP................ In-train wheelset Approved with
replacement Conditions
program.
2/18/2022....................... FRA-2007-28049.... UP................ Locomotives with Dismissed
increased pilot
height.
2/24/2022....................... FRA-2022-0018..... CP & UP........... Wheel temperature Denied
detectors.
4/12/2022....................... FRA-2009-0120..... CSX............... Extension for Pending
change in
intervals for
locking tests.
4/19/2022....................... FRA-2016-0086..... BNSF, CSX, KCS.... AFM indicator Dismissed
calibration.
4/29/2022....................... FRA-2016-0108..... UP................ Extension of Pending
relief for time
to retire ATC and
ACS and comply
with conditions
in FRA-2021-0011.
5/9/2022........................ FRA-2019-0107..... BNSF.............. Transfer train Pending
test (Houston).
5/20/2022....................... FRA-2021-0044..... NS................ Petition for Pending \\
reconsideration
of waiver about
ATGMS.
6/10/2022....................... FRA-2007-28700.... KCS............... Movement of Approved with
freight cars Conditions
received in
interchange at
border.
6/28/2022....................... FRA-2020-0087..... CN................ Resubmission--simu Approved with
lated training. Conditions
7/1/2022........................ FRA-2022-0067..... CN................ In-train wheelset Dismissed
replacement
program.
7/29/2022....................... FRA-2011-0052..... NS................ Non-equipped Pending
engines in cab
signal system.
7/29/2022....................... FRA-2017-0017..... NS................ Non-equipped Pending
engines in cab
signal system.
7/29/2022....................... FRA-2007-28339.... UP................ Border operations. Approved with
Conditions
7/29/2022....................... FRA-2001-8697..... UP................ Border operations. Approved with
Conditions
8/1/2022........................ FRA-2007-28952.... UP................ Border operations. Approved with
Conditions
8/3/2022........................ FRA-2009-0116..... UP................ Signal locking Pending
tests.
8/15/2022....................... FRA-2022-0082..... BNSF.............. Air flow levels in Pending
distributed power
trains.
9/1/2022........................ FRA-2011-0071..... CN................ Signal locking Pending
tests.
10/12/2022...................... FRA-2016-0086..... CN................ AFM indicator Pending
calibration.
10/31/2022...................... FRA-2009-0074..... CN................ Hours of service Approved with
(filed jointly Conditions
with SMART and
BLET).
11/9/2022....................... FRA-2010-0145..... UP................ Securing Denied
unattended
freight cars.
11/17/2022...................... FRA-2003-15012.... CN................ Canadian-based Approved with
dispatching of Conditions
two subdivisions.
11/18/2022...................... FRA-2011-0074..... BNSF.............. Virtual, periodic Denied
refresher
training.
12/12/2022...................... FRA-2007-28700.... KCS............... Border operations. Pending
12/13/2022...................... FRA-2016-0086..... UP................ AFM indicator Pending
calibration.
12/28/2022...................... FRA-2017-0084..... NS................ Railroad Workplace Denied
Safety (Part 214).
----------------------------------------------------------------------------------------------------------------
2023--18 requested, 6 approved..................................................................................
----------------------------------------------------------------------------------------------------------------
2/6/2023........................ FRA-2008-0029..... NS................ Uncoupling levers Approved with
on Rail Train Conditions
service equipment.
2/24/2023....................... FRA-2006-25764.... UP................ Border operations. Approved with
Conditions
2/28/2023....................... FRA-2003-15010.... CP................ Canadian-based Approved with
dispatching of Conditions
subdivisions.
3/3/2023........................ FRA-2018-0066..... BNSF.............. Interval between Approved with
audiometric tests. Conditions
3/16/2023....................... FRA-2020-0033..... BNSF.............. Predeparture Pending
inspection.
3/24/2023....................... FRA-2007-28812.... BNSF.............. Border operations. Approved with
Conditions
4/5/2023........................ FRA-2023-0031..... Amtrak............ Virtual training.. Pending
4/19/2023....................... FRA-2006-24812.... BNSF.............. Extended haul Approved with
inspections. Conditions (in
April 2024)
5/19/2023....................... FRA-2023-0040..... Amtrak............ C3RS.............. Approved with
Conditions
6/2/2023........................ FRA-2023-0044..... UP................ Utility workers... Dismissed
6/14/2023....................... FRA-2016-0086..... BNSF.............. AFM indicator Pending
calibration.
7/13/2023....................... FRA-2018-0076..... CN................ Using pedometers Pending
as part of
wellness program.
9/5/2023........................ FRA-2011-0074..... BNSF.............. Reconsideration of Pending \\
virtual air brake
training.
10/10/2023...................... FRA-2023-0087..... UP................ Electronic listing Pending
of injuries and
illnesses.
10/13/2023...................... FRA-2015-0036..... UP................ Extended haul Pending
trains.
10/17/2023...................... FRA-2023-0095..... Amtrak............ Relief re: Pending
components in
path of wheel.
11/9/2023....................... FRA-2001-8697..... UP................ Border operations Clarification
FRA-2007-28339.... (clarification Letter
FRA-2007-28952.... request).
11/13/2023...................... FRA-2023-0096..... UP................ Disable uncoupling Pending
levers.
----------------------------------------------------------------------------------------------------------------
2024--2 requested, 0 approved...................................................................................
----------------------------------------------------------------------------------------------------------------
1/12/2024....................... FRA-2022-0067..... CN................ Replace non-FRA Pending
condemnable
wheelsets.
1/23/2024....................... FRA-2007-28454.... UP................ In-train wheelset Pending
replacement
program.
----------------------------------------------------------------------------------------------------------------
Questions to Hon. Amit Bose, Administrator, Federal Railroad
Administration, from Hon. David Rouzer
Question 1.a. As the FRA has tracked incidents relating to
substance abuse, which substances are involved in these incidents?
Question 1.b. What percentage of all incidents attributable to
substance abuse is directly attributable to marijuana?
Question 2. How many incidents related to substance abuse under
your Administration's purview have resulted in fatalities?
Question 3. How many incidents related to substance abuse under
your Administration's purview have resulted in injuries?
Question 4. How many incidents related to substance abuse under
your Administration's purview have resulted in termination or
eliminated an applicant for consideration?
Question 5. Have you collected data for substance abuse and
transportation incidents and accidents in each state?
Question 5.a. If so, how do they compare? Do the states that have
legalized or decriminalized marijuana have a higher rate of injuries
than states that have not legalized or decriminalized marijuana?
Question 5.b. If not, will you commit to doing so?
Answer to 1.a., 1.b., 2., 3., 4., 5., 5.a., & 5.b. FRA post-
accident testing screens for the following substances: alcohol,
marijuana, cocaine, opioids, amphetamines, PCP, MDMA, barbiturates, and
benzodiazepines. Generally, FRA post-accident testing positives do not
reach levels of statistical significance. As such, the accidents are
episodic and do not lend themselves to trend analyses.
Since 2000, for post-accident testing, there have been 5,027
individuals tested with 91 violations resulting from 89 positives and
two refusals, which yields a 1.8% violation rate. Of those, 42
violations, or a 0.84% violation rate, included a marijuana positive.
The overall positive rate of drugs and alcohol combined in random
testing is generally lower than the post-accident rate annually. In
2022, the random testing positive rate was 1.07%, while the marijuana-
alone random positive rate in 2022 was 0.35%.
Substance abuse impairment including marijuana is deterred in the
railroad industry through the combined elements of the FRA Drug and
Alcohol regulations (49 CFR part 219) including random testing,
reasonable suspicion/cause testing, post-accident testing, pre-
employment testing, employee training, manager signs and symptoms
training, Rule G impairment checks, and peer/self-referral programs.
These elements work in conjunction, and no one program acts a single
deterrent to illicit drug use and alcohol misuse.
As the Class I railroads operate across multiple states and perform
most of the FRA-regulated random testing, FRA cannot pinpoint the
location of the vast majority of random tests by state and thus cannot
calculate positivity by the state in which the test occurred. The
location of a random test is entered electronically only on the eCCF
testing form which is used in less than 25% of FRA-regulated random
tests.
Questions to Hon. Amit Bose, Administrator, Federal Railroad
Administration, from Hon. Steve Cohen
Railroad Crossing Elimination Program
Question 1. Administrator Bose, as you mentioned in your testimony,
the top 5 states with blocked crossing reports in 2022 included Texas,
Ohio, Illinois, Indiana and Tennessee.
However, I was disappointed that only one Tennessee project was
selected in the most recent Railroad Crossing Elimination funding
announcement.
Question 1.a. In my district, we have a new and esteemed mayor,
Paul Young, who just took over at the beginning of the year. How can
the FRA engage with our new administration to ensure that they have the
information necessary to apply for this important program?
Question 1.b. Additionally, when can we expect to see the notice
funding opportunity for this program for Fiscal Year 2023?
Answer to 1.a. & 1.b. FRA appreciates the strong interest in the
Railroad Crossing Elimination (RCE) program and broadening applications
from your state. FRA anticipates releasing the next RCE Notice of
Funding Opportunity (NOFO) in spring 2024. Under the FY 2022 RCE
program, we received requests totaling more than $2 billion, or
approximately four times the amount of funding available. Because of
the significant number of applications and funding available, FRA was
not able to fund every deserving project. FRA encourages the Mayor and
any other interested parties to reach out to FRA if they would like
more information. FRA will accommodate meeting requests to provide more
information on the RCE program. FRA will also release technical
assistance webinars to clarify the unique eligibilities and required
elements in the RCE program, and past recorded webinars may be found
here [https://railroads.fra.dot.gov/rail-network-development/training-
guidance/webinars-0].
Comprehensive Grade Crossing Safety Efforts
Question 2. I was also interested to learn in your testimony about
comprehensive efforts undertaken by cities such as Chicago and the
CREATE program.
With my district being one of only four cities served by 5 class 1
railroads in the U.S., how can a CREATE type program benefit our
intermodal infrastructure?
Answer. The Chicago Region Environmental and Transportation
Efficiency (CREATE) Program is a public-private partnership that was
initiated in 2003 by state and local leaders, in partnership with the
railroads, to solve the challenging rail congestion and safety issues
in the Chicago area. The CREATE Program comprises a suite of 70 inter-
related capital infrastructure projects throughout the Chicago region
with benefits that are both nationally and regionally significant. The
program has been successful in identifying specific grade crossing and
related infrastructure needs, and systematically developing each
project according to the particular design that would provide the most
effective solution. Due to the immense social and economic benefit this
program promises, FRA has provided CREATE partners with five grants
totaling more than $145 million. Communities in Tennessee and around
the country have a strong model in CREATE. Thanks to the Bipartisan
Infrastructure Law, FRA has continued to build out agency capacity for
project delivery and outreach to be a resource for those interested in
developing a rail infrastructure project.
Question to Hon. Jennifer L. Homendy, Chair, National Transportation
Safety Board, from Hon. Troy E. Nehls
Question 1. NTSB's mission is to conduct transportation accident
investigations and make safety improvement recommendations based on the
findings of those investigations. The Board's investigations are
factually based, thorough, collaborative, and may include public
hearings and input. When there is a transportation accident, such as at
a highway-railroad grade crossing, policy makers often feel the need to
rapidly, and emotionally, respond through kneejerk legislation before
all the facts and final recommendations from NTSB are known. What
potential issues could arise in formulating policy following an
accident before the NTSB has released its final report on the facts and
causes?
Answer. High-profile NTSB investigations certainly result in
significantly greater calls for policy action than other
investigations, and the safety issues that lead to such investigations
are often not immediately identified. When Congress acts with the
intent of addressing safety deficiencies identified in a specific
investigation before it that investigation is complete, there is a risk
of not fully addressing all deficiencies that are cited in NTSB's final
investigative report. The risk is in missing something or getting
something wrong. The risk is in acting with incomplete information and
not addressing our final recommendations which, if acted upon, will
improve safety.
That being said, the NTSB's investigative process is explicitly
designed to ensure urgent safety issues can be addressed before we
complete an investigation. We have issued numerous critical
investigative updates, urgent or early safety recommendations, and
safety alerts over the course of our many investigations when such
updates are warranted by the facts at hand.
Although all safety issues specific to any particular incident may
not be immediately identified, nothing precludes an operator,
regulator, or Congress from addressing any of the various safety
recommendations we have already made before a specific investigation is
completed.
For example, we currently have over 190 open rail safety
recommendations.\1\ These include 5 recommendations to the US
Department of Transportation (DOT), 90 recommendations to the Federal
Railroad Administration (FRA), and 12 recommendations to the Pipeline
and Hazardous Materials Safety Administration (PHMSA). There are also
over 115 recommendations to the FRA that are closed with unacceptable
action.\2\ Every one of these recommendations could be addressed today,
and in many cases the appropriate vehicle for addressing them may be
legislation.
---------------------------------------------------------------------------
\1\ A report of all open safety recommendations related to rail
(nontransit) can be accessed here: https://data.ntsb.gov/carol-main-
public/query-builder/route/?t=published&n=28.
\2\ A report of all recommendations to the FRA that are classified
Closed--Unacceptable can be accessed here: https://data.ntsb.gov/carol-
main-public/query-builder/route/?t=published&n=33.
---------------------------------------------------------------------------
The collisions we see in our investigations are tragic because they
are preventable, and we believe the safety issues we identify in these
investigations should be acted on swiftly. As I stated during the
hearing, there is no reason to wait to act on grade-crossing safety or
any other aspect of rail safety outlined in the NTSB's many unaddressed
recommendations.
Questions to Hon. Jennifer L. Homendy, Chair, National Transportation
Safety Board, from Hon. David Rouzer
Question 1. Have you collected data for substance abuse and
transportation incidents and accidents in each state?
Answer. The NTSB only investigates select rail accidents, so data
from NTSB investigations would not be representative or provide
accurate injury or fatality rates in relation to substance impairment.
Such data would be better provided by the Federal Railroad
Administration.
Question 1.a. If so, how do they compare? Do the states that have
legalized or decriminalized marijuana have a higher or lower rate of
injuries than states that have not legalized or decriminalized
marijuana?
Answer. Not applicable, as explained above.
Question 1.b. If not, will you commit to doing so?
Answer. Collecting such data is more appropriately in the purview
of the regulator. The NTSB will continue to collect data based on the
accidents that we investigate.
Question 2. How many incidents related to substance abuse under the
Board's purview have resulted in fatalities?
Answer. As noted above, the NTSB does not have comprehensive data
in this area. We have, however, published a safety research report
examining the highway crash risk associated with different drugs and
the prevalence of their use among drivers.\3\
---------------------------------------------------------------------------
\3\ National Transportation Safety Board. Alcohol, Other Drug, and
Multiple Drug Use Among Drivers. Safety Research Report SRR-22-02.
Washington, DC: NTSB, 2022.
---------------------------------------------------------------------------
In addition, in 2020, we released a safety research report
providing updated information regarding trends in the prevalence of
over-the-counter, prescription, and illicit drugs identified by
toxicology testing of flying pilots who died in aviation accidents
during the years 2013 through 2017.\4\
---------------------------------------------------------------------------
\4\ NTSB. 2013-2017 Update to Drug Use Trends in Aviation. Safety
Research Report NTSB/SS-20/01. Washington, DC: NTSB, 2020.
Question 3. How many incidents related to substance abuse under the
Board's purview have resulted in injuries?
Answer. See response to number 2, above.
Question 4. How many incidents related to substance abuse under the
Board's purview have resulted in termination or eliminated an applicant
for consideration?
Answer. The NTSB does not maintain data related to individuals'
employment.
Questions to Hon. Jennifer L. Homendy, Chair, National Transportation
Safety Board, from Hon. Donald M. Payne, Jr.
Question 1. Has train length or makeup been a contributing factor
in freight rail accidents? Has the NTSB made any recommendations as to
how railroads should assemble cars carrying hazardous materials on
trains to prevent accidents?
Answer. Yes, the NTSB has investigated a number of accidents in
which train length or makeup was a contributing factor to the accident,
and we have made related recommendations.
The following accidents are examples:
Draffin, Kentucky--2/13/20
A high-hazard flammable train carrying denatured ethanol derailed
on a CSX track that runs between a hillside and the Russell Fork River
near Draffin, Kentucky, in 2020. In the 2 weeks before the derailment,
the area where the derailment occurred received more than 300 percent
of its normal amount of rainfall, which prompted the mudslide that
covered the track with mud and debris immediately before the
derailment. Three leading locomotives, a buffer car, and four tank cars
located at the front of the train derailed. Two of the derailed tank
cars breached and released 38,400 gallons of denatured ethanol, which
combined with diesel fuel from the locomotives and ignited. The
locomotives were destroyed by the ensuing fire.\5\
---------------------------------------------------------------------------
\5\ National Transportation Safety Board. CSX Transportation
Derailment with Hazardous Materials Release and Fire, Draffin,
Kentucky, February 13, 2020. Railroad Investigation Report RIR-22/13.
Washington, DC: NTSB, 2022.
---------------------------------------------------------------------------
Fort Worth, Texas--4/24/19
A southbound Union Pacific Railroad high-hazard flammable key
train carrying denatured ethanol derailed in Fort Worth, Texas, in
2019. The train was 6,122 feet long, weighed 13,230 tons, and consisted
of three locomotives, two buffer cars, and 96 loaded tank cars. Twenty-
six tank cars derailed and three tank cars were breached, leaking
65,270 gallons of denatured ethanol. Several cars caught fire. The
released denatured ethanol ignited, forming pool fires, and some
product entered a tributary of the Trinity River.\6\
---------------------------------------------------------------------------
\6\ NTSB. Union Pacific Railroad Derailment with Hazardous
Materials Release and Subsequent Fire, Fort Worth, Texas, April 24,
2019. Washington, DC: NTSB, 2021.
---------------------------------------------------------------------------
Casselton, North Dakota--12/30/13
A BNSF train carrying grain derailed 13 cars onto an adjacent
track, where they were then struck by another BNSF train in Casselton,
North Dakota, in 2013. The striking train derailed two head-end
locomotives, a buffer car, and 20 cars loaded with crude oil. Following
the collision, the crew of the oil train narrowly escaped the area
before the locomotives were destroyed by the eruption of a fire and
energetic fireballs.\7\
---------------------------------------------------------------------------
\7\ NTSB. BNSF Railway Train Derailment and Subsequent Train
Collision, Release of Hazardous Materials, and Fire, Casselton, North
Dakota, December 30, 2013. NTSB/RAB-17/01. Washington, DC: NTSB, 2017.
Although the Pipeline and Hazardous Materials Administration
(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, in response to the Casselton accident, 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 Federal Railroad Administration (FRA) to revise
the regulations to reflect those findings.\8\ 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.
---------------------------------------------------------------------------
\8\ NTSB. Safety Recommendation R-17-1.
---------------------------------------------------------------------------
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.\9\ PHMSA
has responded that it does not plan to take this interim action, and
the recommendation is classified ``Open--Unacceptable Response.''
---------------------------------------------------------------------------
\9\ NTSB. Safety Recommendation R-17-2.
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The NTSB believes that the derailments in Casselton and Draffin
demonstrate the need for PHMSA to implement appropriate separation
distance requirements. In the Draffin report, we concluded that a
single buffer car does not provide sufficient separation distance from
train crews when the head end of a high-hazard flammable train becomes
involved in a derailment. The NTSB suggests that PHMSA use the
rulemaking that results from its July 5, 2023, advance notice of
proposed rulemaking, ``Hazardous Materials: Modernizing Regulations to
Improve Safety and Efficiency,'' to address these safety
recommendations. We believe that allowing train crews to continue to
travel in locomotives that are positioned close to hazardous materials
tank cars is a safety risk that PHMSA should promptly address.
As a result of the Fort Worth and Draffin investigations, we also
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 placing the most vulnerable tank cars in
high-hazard flammable trains, such as unmodified US Department of
Transportation-111 tank cars, in positions where they are least likely
to derail or to sustain mechanical damage from the effects of trailing
tonnage or collision in an accident.\10\ ASLRRA and the RFA have
implemented the recommendation, but it remains classified ``Open--
Unacceptable Response'' to the AAR.
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\10\ NTSB. Safety Recommendation R-20-27.
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Sequencing rail cars in a train and controlling train movement
continue to be areas of interest in NTSB investigations, not only
regarding the safe placement of hazardous materials but also how these
operational practices manage in-train forces to reduce the risk of
derailments and collisions.
Question 2.a. Prior to the Norfolk Southern derailment in East
Palestine, did any maintenance worker have any concerns about the wheel
bearing that ultimately failed?
Question 2.b. If there were concerns about this bearing, why was
the train allowed to depart?
Answer to 2.a. & 2.b. The qualified mechanical inspectors that
inspected the East Palestine train had no concerns about the wheel
bearings. There is no evidence of any concerns with the accident
bearings before the derailment.
Question 3.a. Is it correct that there are two types of federally-
required train inspections: an inspection by a qualified carman who
inspects 195 points on each car, and the locomotive crew inspection
that covers only 12 points depending on how long a car has been in
service? Which inspection did the cars that derailed in East Palestine
have?
Question 3.b. What are some of the things that the shorter
inspection does not cover?
Answer. to 3.a. & 3.b. I would respectfully defer to the FRA as to
the precise number and nature of federally required train inspections
and as to what is not included in any shorter inspections.
Regarding the specific inspections performed on the cars that
derailed in East Palestine, however, the NTSB's ongoing investigation
has uncovered that the East Palestine train's inspection was done by
qualified mechanical inspectors at the Terminal Railroad Association of
St. Louis (TRRA), in Madison, Illinois, when the train was assembled,
not by Norfolk Southern. The train received a full predeparture
inspection by qualified mechanical inspectors, as defined by 49 Code of
Federal Regulations Part 215, as required. The Appendix D inspection
that you are referring to as a 12-point inspection did not play a role
in this investigation.
Question 4. According to a Wall Street Journal article, Norfolk
Southern's rail yard workers were expected to inspect each rail car in
one minute so that the trains could leave on schedule.
Is one minute sufficient time to perform all the needed safety
checks on a rail car?
Answer. The NTSB learned about the timed inspections at our
investigative hearing and this issue is being reviewed as part of our
safety culture investigation. The transcripts of the hearing are
available in the public docket and discuss these inspection times.
Questions to Ian Jefferies, President and Chief Executive Officer,
Association of American Railroads, from Hon. Donald M. Payne, Jr.
Question 1. On April 6, the Federal Railroad Administration issued
a safety advisory on recent derailments that urged ``all personnel
involved in train makeup decisions and operations receive appropriate
training, guidance, and supervision to effectively execute train makeup
policies, procedures, and guidelines to ensure safe operations.''
Question 1.a. What new training are your member railroads providing
their employees to safely build long trains?
Question 1.b. Do the railroads have policies in place regarding
safe train makeup? Are these policies always followed?
Question 1.c. Are there any consequences if a railroad fails to
adhere to its own policies?
Answer to 1.a. through 1.c. Today, train marshaling rules are
generally incorporated into the computer systems used by railroad
employees to build trains in rail yards. These computer systems also
flag any improper placement of cars added to the train on the route so
they can be addressed in the rail yard. Violations of train makeup
policies are rare, but they do happen. Railroads focus on identifying
why a violation occurred and taking steps to ensure they do not happen
again.
Like all employers, railroads expect their employees to follow
applicable railroad policies and safety rules and regulations. They
provide the appropriate training and re-training to ensure that workers
know and comply with those policies, including additional training when
any changes are made to train marshaling policies. Any violation,
especially of safety rules, can result in consequences for employees.
As each Class I sets their own employment and training policies, I am
not able to comment on specific training programs or specific
consequences associated with failure to adhere to a particular
railroad's policies.
Question 2. Trains have been getting longer and longer--two to
three miles long, and sometimes longer. On April 28 the Federal
Railroad Administration issued a safety advisory on how long trains can
block crossings and create braking challenges. One of their
recommendations was to ``minimize blocked crossings by considering
train length.''
How do railroads consider the impact of blocked crossings when
building trains?
Answer. In 2023, the average train length was 5,276 feet and the
median train length was 5,274 feet, meaning half of trains were shorter
and half longer. That average length is actually down slightly from
2022. Only one percent of trains, about 74 trains per day nationwide,
exceeded 13,700 feet.
Railroads take numerous steps to help ensure the safety and
functionality of longer trains. Longer trains only operate on those
routes where the infrastructure can safely handle them. To that end, in
recent years, railroads have spent tens of millions of dollars to add
new sidings and lengthen existing sidings on routes used for longer
trains. The new sidings are all about 10,000 to 20,000 feet long and
will allow trains of various lengths to safely make way for other
trains. In addition, railroads use sophisticated modeling tools that
reliably predict the performance and implications of a change in a
train's makeup before the train is put into service. They also review
the characteristics of a route, incorporate lessons learned for the
most effective operations of trains on that route, and perform
supervised ``pilot runs.''
Blocked crossings can have many causes, which is why railroads use
a variety of ways to try to reduce their prevalence. Railroads always
try to be good neighbors and minimize negative community impacts in all
aspects of their operations, including blocked crossings. However, as
communities near rail lines and rail facilities expand, new roads are
built and motor vehicle traffic increases. Rail traffic patterns
change, and new challenges related to grade crossings continuously
arise. Often, railroads work closely with local officials, operating
personnel, customers, and other stakeholders to identify where and why
blocked crossings happen. For example, railroads have partnered with
federal, state, and local governments to improve information sharing
and notify motorists and emergency responders when a crossing is
occupied so they can choose alternate routes. When possible, railroads
can adopt site-specific operational changes that work for stakeholders
and reduce blocked crossings, like modifying schedules to minimize
blockages.
Railroads don't want a stopped train any more than the broader
community does, and it's in the best interest of railroads to keep
trains moving safely and efficiently. Because of the complexity of rail
operations and the sometimes-competing demands of other stakeholders,
finding effective solutions often takes significant time and effort.
Railroads remain committed to working cooperatively with local
officials and other stakeholders to address these challenges as
effectively as possible.
That being said, it's not clear that longer trains are contributing
to increases in blocked crossings. Crossings are blocked by trains of
any length, but longer trains could actually reduce the frequency of
occupied crossings. As train length increases, the number of trains
moving through a community each day may actually decrease, reducing the
number of times a crossing is blocked on a daily basis.
Blocked crossings are not good for the communities in which
railroads operate, nor are they good for railroads. Railroads will
continue to work closely with their operational teams, community
leaders, government partners, first responders, and the public to
manage and mitigate blocked crossings and any other negative impacts
across the nation's rail network.
Questions to Ian Jefferies, President and Chief Executive Officer,
Association of American Railroads, from Hon. David Rouzer
Question 1. Among your members, how many individuals have started
the training and onboarding process with an employee but were
ultimately forced to terminate the training process due to the
individual's failure to pass a drug test?
Question 2. How many incidents related to substance abuse under
your organization's purview have resulted in fatalities?
Question 3. How many incidents related to substance abuse under
your organization's purview have resulted in injuries?
Question 4. How many incidents related to substance abuse under
your organization's purview have resulted in termination or eliminated
an applicant for consideration?
Answer to Questions 1 through 4. The Federal Railroad
Administration (FRA) has strict rules and guidelines for drug testing
of safety-sensitive railroad workers. Each railroad has specific
testing programs for pre-employment, post-accident, and random testing
for safety-sensitive employees. These rules cover all train and engine
employees, dispatchers, signal employees, and maintenance-of-way
employees as well as some mechanical employees. AAR and its members
support these rules and work together with FRA to ensure they are
followed. We continue to support efforts to expand drug and alcohol
testing to all safety-sensitive employees, including the 70 percent of
mechanical employees not currently covered by random testing under FRA
rules.
Mandatory drug and alcohol testing does have an impact on the
hiring process. Based on data from the Class I Railroads, on average
about four percent of potential new hires fail a pre-employment drug
test and, therefore, do not complete the onboarding process. That
number does not include the number of potential new hires who never
take a drug test because they simply leave an onboarding event after
learning of the drug test requirement. Those potential hires are not
tracked by the railroads, but anecdotally, railroads report they lose
as many as half the potential new hires after advising them a drug test
is mandatory.
Directly linking substance abuse to incidents and accidents is
difficult because of the way accidents are reported to FRA. When an
accident is reported, FRA does include ``impairment because of drugs or
alcohol'' as a possible specific cause of an accident, but impairment
is infrequently cited as the primary cause of an accident. In the last
five years, FRA reported only one accident as being directly linked to
alcohol or drug impairment. However, based on FRA data from that same
timeframe, there were 47 accidents in which employees tested positive
for drugs and seven accidents in which employees tested positive for
alcohol after an incident. The data does not indicate how many
employees tested positive in each incident. FRA has additional, non-
public data on drug and alcohol impairment and could be an additional
source of information on this issue.
Questions to Ian Jefferies, President and Chief Executive Officer,
Association of American Railroads, from Hon. Steve Cohen
Blocked Crossings in Memphis
Question 1. Mr. Jefferies, it is my understanding that the most-
reported blocked railroad crossing in Memphis is a line owned by
Norfolk Southern that crosses McLemore Avenue.
There were very concerning reports from blockages in 2022 including
a full day blockage, an incident where pedestrians were observed
climbing on, over, or through the train cars, and an incident where
first responders were observed being unable to cross the tracks.
Can you speak to any efforts that have been taken by Norfolk
Southern to alleviate blockages at this particular crossing?
Answer. I cannot speak directly to the operational and other causes
of a particular blocked crossing, nor to how the railroads involved
intend to address them. However, I have been made aware that Norfolk
Southern has briefed your staff on this crossing, and I will help to
facilitate those ongoing conversations however I can.
Railroad Crossing Repairs
Question 2. In the state Comptroller's recent audit, they found
that Tennessee continues to face challenges with railroad companies not
repairing railroad crossings. The audit found that 16 damaged crossings
were inspected late, or not re-inspected at all for repairs.
Can you speak to the challenges railroads are facing in inspecting
and repairing damaged crossings and how this Committee can support the
acceleration of these efforts?
Answer. Generally speaking, railroads do not face major challenges
with inspecting and repairing damaged crossings. The vast majority of
crossings along the national network are fully functional and operating
properly. To be clear, AAR does not set the schedule for when or how
railroads inspect crossings. Each railroad sets their own schedule for
inspecting and, if necessary, repairing the surface of any crossing,
and each state sets their own regulations for how often state and local
safety inspectors check these crossings.
Because I do not have direct knowledge of either the issues with
rail-highway crossings in Tennessee or with the Comptroller's Audit of
the Department of Transportation, I directed this question to the
Tennessee Railroad Association. They provided the following response,
and I would encourage you to continue speaking with them as this
process continues:
The Tennessee Comptroller's Audit of the Department of
Transportation did not state that there are widespread issues
with rail-highway crossings lacking maintenance nor did it
state that railroads were negligent in repairing crossings. In
fact, according to the TDOT Rail Safety Inspector Department
director, in mid-February, there were only eight crossings in
Tennessee, out of the 2740 at-grade public crossings statewide,
that need maintenance attention. Of those eight, the majority
were already scheduled for repair or replacement work in the
next 30-60 days.
The Comptroller Audit finding states that TDOT's Rail Safety
Inspector group does not have a formal procedure in place for
tracking rail-highway crossing issues (rough crossings) and
also found that it did not have an official process for timely
follow-up inspections of those crossings after repairs have
been reportedly completed.
The actual language in the audit reads as follows:
Additionally, our audit scope included follow up on prior audit
findings in the following areas:
Management's inspection procedures to ensure timely
repairs of railroad crossing surfaces that inspectors
identified as poor as well as follow up on complaints about
railroad crossings.
The policy of all the railroad companies operating in Tennessee
is to address any crossing issues reported to them in 30 days
or less. The 30-day repair time window is agreeable to both the
TDOT rail safety inspectors and to the railroads' engineering
departments. A crossing concern may result from an onsite
safety inspection by a state inspector or may have been
submitted to TDOT by a local official. Regardless of the origin
of the complaint, the railroad companies address the crossing
issues as quickly as possible once notified by one of the rail
inspectors. The timeline for reinspection of any repaired
crossings is up to the Department to set.
Each of the railroad operators in Tennessee appreciate the
partnership with the TDOT Rail Safety Inspector group to notify
them when a crossing has an issue or is deemed ``rough.'' The
railroad companies operate trains over the crossings, which are
not impacted by the surface smoothness. The railroad track
engineers are often unaware that the condition of the crossing
service has deteriorated due to the wear and tear of the
vehicles that use the crossings--not just passenger vehicles,
but tractor-trailers, garbage trucks, school buses, fire trucks
and other heavy model trucks. While the railroads provide
regular scheduled crossing repairs, surfacing and replacements
on a rotating basis to ensure the crossings are both safe for
the trains to operate over and smooth for vehicular traffic to
cross, occasionally small repairs and patches are necessary.
The partnership with the TDOT rail inspectors is helpful in
that regard.
The rail industry appreciates the Committee's continued focus on
improving crossing safety. The most important actions you can take to
continue supporting the work of the railroads and other stakeholders to
continue that progress is continuing to fund critical programs like the
Railroad Crossing Elimination Grant Program, the Consolidated Rail
Infrastructure Safety and Improvements (CRISI) grants, and the Section
130 state funding. Keeping these programs fully funded--and ensuring
that the money is getting out the door quickly and efficiently--will
help achieve our shared goal of making grade crossings safe.
Questions to Hon. Michael J. Smith, Commissioner, Indiana Department of
Transportation, from Hon. Troy E. Nehls
Question 1. As you know, there are multi-modal projects that
receive funding from more than one modal agency within DOT. For
example, a project sponsor may use funding from Federal Highway
Administration (FHWA) programs and funding from the FRA on the same
project. In these instances, project sponsors may have to delay
projects because they must restart the National Environmental Policy
Act (NEPA) process if there are multiple sources of Federal
transportation funds. What can the FRA and DOT do to streamline the
NEPA process when a single project is funded through more than one
modal source of funding?
Answer. The Indiana Department of Transportation (INDOT) would
advocate that all federal agencies have a uniform voice and
interpretation of NEPA requirements. Specifically, the FRA and DOT can
streamline the NEPA process when a single project is funded through
more than one modal source by having those modes enter into an
agreement for each grant with more than one federal financial sponsor.
The agreement would allow recipients to complete the NEPA processes
simultaneously. Fortunately, the Infrastructure Investment and Jobs Act
(IIJA) enables federal agencies to adopt the NEPA document of another
agency to meet its NEPA requirements and allows such agreements to be
possible. INDOT hopes to continue working with federal agencies on
streamlining the NEPA process and ensuring Indiana remains compliant
and competitive for federal funding opportunities.
Question 2. While Federal discretionary grants can help address
pressing transportation investment needs, the process to award grants,
negotiate grant agreements and obligate funds is lengthy and tedious.
The delays caused by this process mean critical projects are not
started quickly--which can lead to cost increases and frustration from
the public. What can the FRA and DOT do to speed up the discretionary
grant process and ensure more timely obligation of funds?
Answer. The discretionary grant process often involves a tremendous
amount of paperwork, submission points, and differing recipients. This
becomes tedious, time consuming, and complicated for DOT staff and
local agencies trying to navigate the discretionary grant process.
INDOT would support a systematic review of the current process that
untangles the current unnecessary burdens and streamlines the process
to remove duplicative or excessive grant hurdles. In doing so, the
state and local agencies could apply for and deliver projects in a more
timely manner.
INDOT would also support increasing formula fund distributions in
lieu of the multitude of discretionary grant programs. Data-driven
infrastructure needs, asset management planning, and multimodal goals
are easier addressed through formula funding. This is especially
apparent when considering how labor-intensive the discretionary grants
process is for state and local DOTs.
Questions to Hon. Michael J. Smith, Commissioner, Indiana Department of
Transportation, from Hon. Andre Carson
Question 1. Commissioner Smith, you've touted Indiana's partial
success with some federal and state programs to mitigate at-grade
crossings, but you've acknowledged that much more work needs to be
done. I haven't received complete lists, but the reports I've seen show
projects that have passed over Indianapolis, the largest city in the
state, for smaller cities. As I've mentioned, the problem of blocked
crossing in Indy is so bad that a local group has a dedicated social
media site called ``The Damn Train'' where constituents post pictures
while they sit and wait for trains to clear the tracks. So I'd
appreciate your thoughts in the time remaining, and then I'd also like
to get a complete list from you after our hearing of where those
federal and state funds have gone.
Answer. NDOT's at-grade crossing elimination program, the Local
Trax [https://www.in.gov/indot/files/Local-Trax-Flier.pdf] and Railroad
Crossing Elimination Program, as well as the FRA's Railroad Crossing
Elimination (RCE) Grant are discretionary grants. INDOT would encourage
the city of Indianapolis, as well as other communities throughout the
state, to submit applications for these programs. To the agency's
knowledge, Indianapolis did not apply for the FRA's grant this year.
The FRA recently published the list of applications submitted and not
selected for RCE at FY22 Railroad Crossing Elimination Applicant
Report.pdf (dot.gov) [https://railroads.dot.gov/sites/fra.dot.gov/
files/2023-07/
FY22%20Railroad%20Crossing%20Elimination%20Applicant%20Report.pdf].
For INDOT's Local Trax program, Indianapolis' application for a
grade separation project was incomplete, and therefore the city was
ineligible for funding. The projects that were originally selected were
based solely on those that addressed the most immediate safety needs.
To determine this, INDOT uses the FRA's hazard index to determine the
highest critical need locations. Awards for INDOT's Local Trax program
were granted to Terre Haute, Gary, Schererville, Wells County,
Kosciusko County, Elkhart, Elkhart County, LaPorte, Hobart, Hammond,
and Wabash. Information on these awards can be found in the linked
flier [https://www.in.gov/indot/files/Local-Trax-Flier.pdf]. Future
rounds of the Local Trax program are dependent upon the allocation of
funds by the Indiana General Assembly.