[House Hearing, 110 Congress] [From the U.S. Government Publishing Office] REAUTHORIZATION OF THE FEDERAL RAIL SAFETY PROGRAM ======================================================================= (110-5) HEARINGS BEFORE THE SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS OF THE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS FIRST SESSION __________ JANUARY 30 AND 31, 2007 __________ Printed for the use of the Committee on Transportation and Infrastructure U.S. GOVERNMENT PRINTING OFFICE 34-777 PDF WASHINGTON DC: 2007 --------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800 DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE JAMES L. OBERSTAR, Minnesota, Chairman NICK J. RAHALL, II, West Virginia JOHN L. MICA, Florida PETER A. DeFAZIO, Oregon DON YOUNG, Alaska JERRY F. COSTELLO, Illinois THOMAS E. PETRI, Wisconsin ELEANOR HOLMES NORTON, District of HOWARD COBLE, North Carolina Columbia JOHN J. DUNCAN, Jr., Tennessee JERROLD NADLER, New York WAYNE T. GILCHREST, Maryland CORRINE BROWN, Florida VERNON J. EHLERS, Michigan BOB FILNER, California STEVEN C. LaTOURETTE, Ohio EDDIE BERNICE JOHNSON, Texas RICHARD H. BAKER, Louisiana GENE TAYLOR, Mississippi FRANK A. LoBIONDO, New Jersey JUANITA MILLENDER-McDONALD, JERRY MORAN, Kansas California GARY G. MILLER, California ELIJAH E. CUMMINGS, Maryland ROBIN HAYES, North Carolina ELLEN O. TAUSCHER, California HENRY E. BROWN, Jr., South LEONARD L. BOSWELL, Iowa Carolina TIM HOLDEN, Pennsylvania TIMOTHY V. JOHNSON, Illinois BRIAN BAIRD, Washington TODD RUSSELL PLATTS, Pennsylvania RICK LARSEN, Washington SAM GRAVES, Missouri MICHAEL E. CAPUANO, Massachusetts BILL SHUSTER, Pennsylvania JULIA CARSON, Indiana JOHN BOOZMAN, Arkansas TIMOTHY H. BISHOP, New York SHELLEY MOORE CAPITO, West MICHAEL H. MICHAUD, Maine Virginia BRIAN HIGGINS, New York JIM GERLACH, Pennsylvania RUSS CARNAHAN, Missouri MARIO DIAZ-BALART, Florida JOHN T. SALAZAR, Colorado CHARLES W. DENT, Pennsylvania GRACE F. NAPOLITANO, California TED POE, Texas DANIEL LIPINSKI, Illinois DAVID G. REICHERT, Washington DORIS O. MATSUI, California CONNIE MACK, Florida NICK LAMPSON, Texas JOHN R. `RANDY' KUHL, Jr., New ZACHARY T. SPACE, Ohio York MAZIE K. HIRONO, Hawaii LYNN A WESTMORELAND, Georgia BRUCE L. BRALEY, Iowa CHARLES W. BOUSTANY, Jr., JASON ALTMIRE, Pennsylvania Louisiana TIMOTHY J. WALZ, Minnesota JEAN SCHMIDT, Ohio HEATH SHULER, North Carolina CANDICE S. MILLER, Michigan MICHAEL A. ACURI, New York THELMA D. DRAKE, Virginia HARRY E. MITCHELL, Arizona MARY FALLIN, Oklahoma CHRISTOPHER P. CARNEY, Pennsylvania VERN BUCHANAN, Florida JOHN J. HALL, New York STEVE KAGEN, Wisconsin STEVE COHEN, Tennessee JERRY McNERNEY, California (ii) SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS CORRINE BROWN, Florida Chairwoman JERROLD NADLER, New York BILL SHUSTER, Pennylvania LEONARD L. BOSWELL, Iowa THOMAS E. PETRI, Wisconsin JULIA CARSON, Indiana WAYNE T. GILCHREST, Maryland GRACE F. NAPOLITANO, California STEVEN C. LaTOURETTE, Ohio NICK LAMPSON, Texas JERRY MORAN, Kansas ZACHARY T. SPACE, Ohio GARY G. MILLER, California BRUCE L. BRALEY, Iowa HENRY E. BROWN, Jr., South TIMOTHY J. WALZ, Minnesota Carolina NICK J. RAHALL II, West Virginia TIMOTHY V. JOHNSON, Illinois PETER A. DeFAZIO, Oregon TODD RUSSELL PLATTS, Pennsylvania JERRY F. COSTELLO, Illinois SAM GRAVES, Missouri EDDIE BERNICE JOHNSON, Texas JIM GERLACH, Pennsylvania ELIJAH E. CUMMINGS, Maryland MARIO DIAZ-BALART, Florida MICHAEL H. MICHAUD, Maine LYNN A. WESTMORELND, Georgia DANIEL LIPINSKI, Illinois JOHN L. MICA, Florida JAMES L. OBERSTAR, Minnesota (ex officio) (ex officio) (iii) CONTENTS Proceedings of: January 30, 2007............................................... 1 January 31, 2007............................................... 152 JANUARY 30, 2007 Summary of Subject Matter........................................ 41 TESTIMONY Page Boardman, Hon. Joseph H., Administrator, Federal Railroad Administration................................................. 9 Gonzalez, Hon. Charles A., a Representative in Congress from Texas.......................................................... 6 Scovel, Hon. Calvin L., III, Inspector General, U.S. Department of Transportation.............................................. 9 Siggerud, Katherine, Director of Physical Infrastructure Issues, U.S. Government Accountability Office.......................... 9 Sumwalt, Hon. Robert L., III, Vice Chairman, National Transportation Safety Board, accompanied by Bob Chipkevich, Director, Office of Railroad, Pipelines and Hazardous Materials Investigations, National Transportation Safety Board........... 9 PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS Brown, Hon. Corrine, of Florida.................................. 65 Costello, Hon. Jerry F., of Illinois............................. 71 Cummings, Hon. Elijah E., of Maryland............................ 73 Gonzalez, Hon. Charles A., of Texas.............................. 78 Mica, Hon. John L., of Florida................................... 85 Oberstar, Hon. James L., of Minnesota............................ 90 Walz, Hon. Tim, of Minnesota..................................... 146 PREPARED STATEMENTS SUBMITTED BY WITNESSES Boardman, Hon. Joseph H.......................................... 49 Scovel, Hon. Calvin L., III..................................... 94 Siggerud, Katherine............................................. 119 Sumwalt, Hon. Robert L., III.................................... 141 SUBMISSIONS FOR THE RECORD Boardman, Hon. Joseph H., Administrator, Federal Railroad Administration: Response to a question from Rep. Shuster....................... 21 Response to a question from Rep. Braley........................ 25 Response to a question from Rep. Napolitano.................... 32 Scovel, Hon. Calvin L., III, Inspector General, U.S. Department of Transportation, responses to questions from Rep. Brown...... 111 Siggerud, Katherine, Director of Physical Infrastructure Issues, U.S. Government Accountability Office, responses to questions from Rep. Brown................................................ 136 ADDITION TO THE RECORD Larson, Steve, Executive Director, California Public Utilities Commission. statement.......................................... 147 JANUARY 31, 2007 TESTIMONY Page Hamberger, Edward R., President and Chief Executive Officer, Association of American Railroads.............................. 158 Pomeroy, Hon. Earl, a Representative in Congress from North Dakota, accompanied by Jeannette Klier......................... 152 Rodzwicz, Edward W., President, Teamsters Rail Conference....... 158 Timmons, Richard F., President, American Short Line and Regional Railroad Association........................................... 158 Van Dyck, Sharon L., American Association for Justice........... 158 Wytkind, Edward, President, Transportation Trades Department, AFL-CIO........................................................ 158 PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS Brown, Hon. Corrine, of Florida.................................. 194 Costello, Hon. Jerry F., of Illinois............................. 199 PREPARED STATEMENTS SUBMITTED BY WITNESSES Hamberger, Edward R............................................. 200 Rodzwicz, Edward W.............................................. 233 Timmons, Richard F.............................................. 246 Van Dyck, Sharon L.............................................. 253 Wytkind, Edward................................................. 258 SUBMISSIONS FOR THE RECORD Hamberger, Edward R., President and Chief Executive Officer, Association of American Railroads: Response to a question from Rep. Brown......................... 221 Response to a question from Rep. Napolitano.................... 225 Response to questions from Rep. Walz........................... 230 Timmons, Richard F., President, American Short Line and Regional Railroad Association, responses to questions from Rep. Brown... 249 ADDITION TO THE RECORD Institute of Makers of Explosives, Cynthia Hilton, Executive Vice President, letter, February 15, 2007........................... 266 REAUTHORIZATION OF THE FEDERAL RAIL SAFETY PROGRAM ---------- Tuesday, January 30, 2007, House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines and Hazardous Materials, Washington, D.C. The subcommittee met, pursuant to call, at 2:00 p.m., in Room 2167, Rayburn House Office Building, the Honorable Corrine Brown [Chairwoman of the subcommittee] presiding. Ms. Brown. Good afternoon. The Subcommittee on Railroads, Pipelines and Hazardous Materials will come to order. And thank you. [Applause.] Ms. Brown. Before I begin, I want to introduce my school board member from Orlando, Cat Gordon. Cat, would you just stand up? I know this is unusual. [Applause.] Ms. Brown. And I have school board members from Jacksonville, Florida. Would you all stand up? [Applause.] Ms. Brown. So at any rate, they're watching me. [Laughter.] Ms. Brown. The Subcommittee is meeting today to hear testimony on reauthorization of the Federal Rail Safety Program. Since this is our first meeting of the 110th Congress, I believe this is a good opportunity to outline the near-term agenda of the Subcommittee, and our efforts to address many of the transportation challenges facing this Country. First, let me say how pleased I am to serve as the Chairwoman of the Subcommittee on Railroads, Pipelines and Hazardous Materials. I have loved the railroads since I was a child watching the Silver Meter pass by my house every day. And I often tease members, pass through my house, we were just that close to it. I am also pleased to have the opportunity to work with my Republican colleague, Congressman Bill Shuster of Pennsylvania. And you can rest assured that the Transportation Committee is one committee in this House and this Subcommittee that will be run very bipartisan. We will work together for the good of the people of this Country. Thank you for being the Subcommittee Ranking Member. The Subcommittee will have an active agenda in the coming weeks and months, starting with the reauthorization of the Rail Safety program. I have scheduled these two days of hearings to give members adequate time to examine the state of rail safety in the U.S. Additionally, hearings are scheduled for February, including a February 13th hearing on fatigue in the rail industry. It is my hope that we can build upon the past bipartisan efforts of the Subcommittee and move a rail safety bill through the Committee to the floor of the House before the Memorial Day district period. Congress last passed legislation to reauthorize the Federal Railroad Administration in 1994. That reauthorization expired in 1998. Since that time, the railroad industry has changed dramatically. Economic growth and the increase in international trade have led to record traffic levels. At the same time, Amtrak and commuter railroads, which often operate on freight rail lines, are moving more passengers, which means that the system is a lot of pressure on our rail system. This has a significant impact on workers and public safety. According to the FRA, train accidents have increased by 33 percent since 1994. Fatalities and injuries have also increased from 12 fatalities and 262 injuries in 1994 to 33 fatalities and 734 injuries in 2005. It hit an all time high at 1,884 in 2002, due to a train accident in North Dakota. On the other hand, grade crossing accidents and relative fatalities and injuries have decreased. Of course, when looking at those numbers, we also have to consider the increase in train traffic from 650 million train miles in 1994 to 790 million train miles in 2005. So we have to look at accident rates. According to the FRA, the train accident rates have increased since 1994, while the grade crossing incident rates have decreased and leveled off since 2002. Forty percent of all train accidents are the result of human factors. Thirty percent are the results of defective tracks. I am interested in hearing what the FRA is doing to reduce accidents and what Congress should do to improve the Federal Rail Safety program. Before I yield to Mr. Shuster for his statement, I want to mention that we have a few members returning to the Subcommittee, and a fair number of new members joining us this year. I am looking forward to getting to know each of my colleagues, learning about their needs and working together to address their many concerns. Mr. Shuster? Mr. Shuster. Thank you, Madam Chairwoman. First of all, I want to congratulate you on your chairmanship. It is going to be a pleasure working with you. You and I have worked in the past on the T&I Committee. I know you work hard at it, and I certainly am looking forward to working with you in a bipartisan way on the Subcommittee of Railroads, Hazardous Materials and Pipelines. My last Congress, I served on the Economic Development, Public Buildings and Emergency Management Subcommittee. I think Ms. Norton can attest to the fact that we worked very bipartisanly on that subcommittee and as I said, I look forward to continuing that work here. As you mentioned, this Committee and all the subcommittees have been able to do that over the history of this Committee. I would also like to welcome our new members that are new to the Committee. That's Mr. Gilchrest from Maryland, Mr. Johnson of Illinois, Mr. Gerlach from Pennsylvania, and Mr. Diaz-Balart from Florida, as well as all of our new Democratic members. I look forward to working with each and every one of them. Today's hearing is on the reauthorization of the Federal Rail Safety program. This subject is both timely and of great personal interest. Our Nation's economy depends on the efficient freight transportation system. This is especially true in my home State of Pennsylvania, where many industries rely on the freight rail industry. The safe movement of passengers is also a major concern. In Pennsylvania, the Keystone Corridor from Harrisburg to Philadelphia was recently upgraded to a high speed rail of 110 miles per hour, and we hopefully will see more of those types of projects in the near future. And so far today, it has been a great success with increased passengers riding that train. America already has one of the safest rail systems in the world, and according to the latest statistics, last year was one of the best on record. I think it is important that when we look at the raw numbers, we look at those rates. I think it is clearly, when you look at the rates, the increased traffic, increased freight, that this has been an extremely safe year. I don't know that the numbers for 2006 are out yet, but it appears it is going to be the same as 2050 or even better. We have to make sure that we keep it that way. I want to compliment the folks at the Federal Railroad Administration, the railroads, and in particular, the employees of the railroads. Because that is why we see these fantastic results, all of them working together to make sure that we have a safe rail system in this Country. We can't rest, we can't sit back on our laurels. We have to look forward to seeing and hearing how we can make our railroads even safer. I look forward to the testimony of our distinguished witnesses today. We all appreciate their expertise and their commitment to rail safety. Once again, congratulations, Chairwoman Brown. I am really looking forward to the coming weeks and months working with you. Ms. Brown. Thank you. Ms. Napolitano, from California. Ms. Napolitano. Thank you, Madam Chairwoman. I wanted to be one of the new old Subcommittee members, I have been wanting Transportation for many years. I thank you for the opportunity and look forward to working with you on all the issues. Madam Chairwoman, I ask to submit a statement of Mr. Steve Larson, the Executive Director of the California Public Utilities Commission, regarding the important role that States can play in protecting their citizens by ensuring safe rail operations. Ms. Brown. Without objection, so ordered. Ms. Napolitano. Thank you, Madam Chairwoman. My district is home to the Alameda Corridor East rail lines. Union Pacific and Burlington Northern both have great traffic that brings 40 to 50 percent of the Nation's goods through my whole district. There is over 35 miles, just in one area alone. They of course distribute $314 billion in annual trade through those rail lines and impact 1.9 million residents in 30 cities. The fact that the last couple of years I have had five derailments, three within my area and two just outside my area, indicates to me that there were some issues, and I was very heavily involved with the railroad in making sure that does not happen again. Thank God, we have been accident free for a year and a half. The fact that we feel that FRA must implement stricter rail safety regulations by forcing more frequent track inspections and better maintenance, and utilizing new technology to inspect areas of track that are currently inaccessible. Also including the research and development to ensure that the joint bars are something that are taken care of, which is a great issue in my area. We can go to the moon, but we have not been able to find a way to inspect the joint bars. Increase the staffing and reduction in fatigue in hours of service. Conversations not only with the rail folks and some of the other labor groups indicate that there are loopholes. And we need to ensure the safety not only of our employees on the railroad, but also the people that drive through, if you will, where there are trains. We need to ensure slower and quieter traffic through urban areas. I have nothing but urban. We need to impose tighter standards for transporting hazardous materials to prevent unnecessary deaths. And we also must assist communities in being able to work out how do we improve grade crossing safety, if we are not going to do grade separations. And then of course, we want to ensure that States must be given power to assist in railroad safety. Many States offer additional inspectors and accident prevention training. Why are we not utilizing that to a greater degree? We look forward to having FRA work with States to improve safety on behalf of all of our communities. And of course, grade separations, ensuring that rail crossings, which are the leading cause of traffic delays and accidents, are operated, built to improve the ability for the cities to continue their business. There are 54 grade crossings along the Alameda Corridor East, in my area alone, 54. The Alameda Corridor East Construction Authority has 10, 8 working, 2 completed, 10 unfunded to do and the other 34 are nil. That means my transportation emergency vehicles are going to be at a standstill, because there is no way around it. And we need to ensure that while we are serving the rest of the Country, that my district is not impacted unnecessarily. We support whatever the Subcommittee chair is proposing, and look forward to working on this issue with all of us, both sides of the fence. Thank you, Madam Chair. Ms. Brown. Thank you, and thank you for joining the Committee. I want to welcome Mr. Mica, the ranking Republican Member of the full Committee. I recognize him for any remarks he may care to make. Mr. Mica. Thank you so much, Ms. Brown, and congratulations on assuming the Chair of this very important Subcommittee of the Transportation and Infrastructure Committee. Ms. Brown and I were elected together some 14 years ago. We share a very common geographic area and a lot of people with the same concerns and needs. They all are very proud of you now in assuming this important responsibility. I am also pleased to have named Mr. Shuster, the ranking Republican member. I am very proud of him. He has chaired one of our other subcommittees. I will not be here to see it, but I know his picture will be up, actually we could take his dad's down some day and put his up there. Don't tell him I said that. He won't until he reads the will. [Laughter.] Mr. Mica. But we know he will do a good job, and working together we can get a lot done. And also just a moment for the good of the order, I want to thank members on both sides of the aisle who are here, I see Mr. DeFazio over there, in learning that we are going to fully fund our TEA-LU obligations for highway. I thank everyone. Seventy-three members, the largest committee in Congress, signed a letter jointly, Republicans and Democrats. I learned that that has been announced. We need to keep it in there, though, as it goes over to see our friends on the other side of the aisle. But I do thank everyone for their cooperative effort and success so far. Again, I want to address just for a minute the subject of today's hearing. This of course is the reauthorization of our Federal Rail Safety program. The Railroad Subcommittee conducted several safety oversight hearings during the past two Congresses. And each here, and we found that our Rail Safety program has made some significant progress. I think that the Chairwoman has shown some of the progress we have made. Now, there is always room for improvement. And as we move forward in reauthorization, I would like to set out a couple of principles that I think we should follow. First, as the famous President said, Ronald Reagan, if it ain't broke, don't fix it. We have to make certain that our current program, we build on its successes in safety and that we improve on that, our safety record over the coming years. If we propose to try, and I am not disposed to not trying something new, let's make certain it is going to work and be effective. Any new program must be based on the latest science. The Federal Railroad Administration has done a great deal of safety research over the past few years, particularly on the important question of worker fatigue. This research could serve as the basis for replacement of our antiquated hours of service law, which dates back, believe it or not, to 1907, 100 years old. My second principle for rail safety reauthorization is the avoidance of unnecessary bureaucratic regulations, i.e., red tape. The Government is great at making people file more and more paperwork. But paperwork does not always enhance safety. What we truly need is a program to fund advanced safety technologies, such as the T18 track inspection car, developed by the FRA. We should also be encouraging the installation of state of the art positive train separation controls, which can eliminate the cause of a lot of our problems, human-caused collisions. In closing, I would like to note that one of the worst-run railroads, couldn't do this, couldn't get through a Rail Subcommittee hearing without saying something about Amtrak, one of the worst-run railroads in the Country is our own Amtrak. During our Committee oversight process in the last few years, we have found numerous safety, mismanagement and maintenance problems in Amtrak's mechanical department and some of their other operations. Some of these issues have been addressed, but Amtrak, again, our Government-run passenger service, long distance service and high speed service, needs to do much more. I should note that my staff and I have spoken in the past to President Alexander Kummant and have been assured that Amtrak will address pending safety concerns, like even getting brakes that fit Acela. I call on the Federal Railroad Administration to take a closer look at Amtrak's safety record to ensure that it has taken every possible corrective action. That is important, because it is not just freight, it is people that we move on Amtrak. So with those comments, thank you for hearing me out, and congratulations again. Ms. Brown. Thank you, Mr. Mica, Ranking Member of the full Committee. I am looking forward, as always to working with you. And I want to be clear, Mr. Shuster, that you tell your daddy that I didn't recommend taking his picture down. I want to be clear on that. [Laughter.] Ms. Brown. I want to yield now to Mr. DeFazio from Oregon. Mr. DeFazio. Thank you, Madam Chair. Congratulations upon assuming the Chair and I have no opening remarks. I am looking forward to hearing from the witnesses. Thank you. Ms. Brown. We have sufficient time to put any other remarks into the record. I would like to, it is my pleasure to welcome Congressman Gonzalez to the hearing this afternoon. The Congressman has spoken with me about a number of fatality accidents that occurred in his district, and I thought it would be helpful for him to share his concerns with the rest of the Subcommittee as we begin. So welcome. TESTIMONY OF THE HONORABLE CHARLIE A. GONZALEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS Mr. Gonzalez. Thank you very much, Madam Chairwoman Brown, and congratulations to you, and of course, to Ranking Member Shuster and members of the Committee, thank you for the opportunity of appearing before you. I have been in communication with members of this Committee for the past few years regarding situations in my district, which is half of San Antonio and the surrounding areas, of course. What would be my interest in rail safety? May 2004, a derailment near Brackenridge High School, 5,600 gallons of diesel fuel are spilled near the San Antonio River. Thank God, four tank cars carrying propane do not rupture. June 2004, Macdona, Texas, which is the southwest side of San Antonio. A 40-car derailment, toxic chlorine gas tank ruptures. The conductor and two residents die. Fifty people are hospitalized. September 2004, derailment near Brackenridge High School again. Luckily, no spills. November 2004, train collides into the Crystal Storage Company building. An accountant sitting at his desk is crushed to death. February 2005, in San Marcos, Texas, 40 miles north of my district, a seven-car derailment. Tank cars carrying hazardous materials requiring the evacuation of 200 residents. Again, we are lucky that no cars ruptured. October 2006, in the heart of my district, down the street from where I live. Two homes, after a 17-car derailment, two homes are struck and one actually has to be demolished because it wasn't up to code after that. What have I learned from those particular experiences? I believe that railroad companies pretty well police themselves. There is a lack of oversight by the Federal Railroad Administration and that the Federal Railroad Administration is not aggressive, it is not proactive and many times not engaged, which results in railroad companies not compelled to adopt policies or invest in technologies to improve rail safety. I also recognize the FRA has new personnel. It is under a different watch and I will defer to that. I am talking about some previous experiences with different personnel at the FRA. What were some of the problems or issues that were easily identified? FRA is ill-equipped to investigate accidents. The NTSB cannot take up the slack, and that was in conversations with the NTSB. They did not say that in so many words. But if you look at the number of personnel that they have to assist in the investigations of rail accidents, it is an easy conclusion to arrive at. Employee fatigue. Current regulations fail to address unwise or abusive practices. I think the Ranking Member has already made reference to that. It is, I guess, incomprehensible that we have not done anything earlier on this. A lack of utilization of positive train controls which override human error, which if in fact, a large percentage of the accidents are due to human error, fatigue and so on, then why aren't we making that investment in that type of technology that will override that type of error? Proper car placement, tank cars being placed away from other cars that could result in puncturing the tank cars. And of course, the placement of cars based on weight and so on. Improved standardized derailment statistics. Definitions, reporting periods and so on. And easier access to that information by the general public. What am I referring to? I think you all are more knowledgeable about this than I am. But I was looking at statistics. And they said 2005, there were only 33 fatalities at all of these accidents throughout the United States. And that was incredible to me. I didn't understand why the number could be so low, when I had heard that the fatalities numbered more in the 700 range. That conductor that died in San Antonio, the two residents that died as a result of chlorine poisoning, the accountant that was crushed to death by that train, are not part of the 33 fatality statistic. And you say, how is that possible? Because the only ones that are counted, they have to be on the train as a passenger or as an employee and you have to die as a result of the accident itself. Now, if you are in a car, you are not one of those fatalities. If you are the resident inhaling the toxic fumes and you die, you are not counted. If you are the conductor or the engineer that jumps off the train after the accident and still dies in the gaseous cloud, you're not counted as a fatality. Now, I know that we will have those statistics somewhere else. But let's try to have some reason in arriving at what would be reasonable, comprehensive statistics and reporting. Improved safety and security of remote control operated trains continues to be a concern. I recognize that some of these issues have been addressed of late, but have gone too long ignored. This would be my only caution as we proceed, and I commend you that you are taking the interest early. FRA recommendations to railroad companies do not equate to actual regulations. Two, you may hear that last year, the Nation's rail system was on pace to set an annual safety record. All I say to that is, as compared to what? We cannot have the attitude that it could be worse, because that is what I always encounter. Well, it was bad, but it is not as bad as it used to be, or it could be worse. I know that the public demands more, and I am hoping that this Congress will provide more. Again, thank you very much, and I will remain here if you have any questions. Ms. Brown. Thank you, Mr. Gonzalez. I guess I just have one. As the Subcommittee plans for reauthorization of the Federal Rail Safety program, what areas are in need of revision or reform, if there were just one or two things that you think need to happen? Mr. Gonzalez. There has to be a priority list, and I understand that, Madam Chair. But I always, in thinking through where is that information, it is so easily accessible, because all the investigations have been made and all the recommendations have been made. NTSB, just the safety recommendations that arose out of the accident in Macdona where we lost three individuals, address the issue of crew fatigue, including hours of service and scheduling issues that take into account crew limbo time, disrupted processes and unpredictability of the work schedules. Adopt positive train control systems, which we have touched on. Examine the impact resistance of steels used in pressure tank cars built before 1989 that are still in service. Develop tank car specific fracture strength standards, taking into account that these rail lines are not going to be relocated in all probability, and they still will be going through highly populated areas. The other is implement measures that would minimize forces should an accident occur, such as positioning the tank cars away from other cars that could actually cause a puncture, which are covered. And of course, providing escape breathing apparatus for personnel. I would also be looking at how the FRA is going to deal with what I refer to as the disciplinary action, or the corrective action, as opposed to the way that they have done it in the past, where they reach these agreements, but nothing ever really occurs. I do not think they are really followed, I do not think they are scrutinized, and I do not think that anything happens for failure to comply. So it is just a smorgasbord out there that this Committee needs to establish the priorities. Ms. Brown. Thank you. Mr. Shuster, do you have any questions? Mr. Shuster. No, ma'am, no questions. Thank you. Mr. Gonzalez. Thank you. Ms. Brown. Ms. Napolitano? Ms. Brown. Congressman, on the derailings in your district, were there any specific concerns with the life of the rail, or any of the performance of the joint bars, besides the fatigue? Mr. Gonzalez. My understanding is that there was some allegation about the condition of the tracks, but I do not think that was found to be a valid concern. There were some considerations regarding the signals and such. That investigation of the Macdona incident is quite interesting, that is the findings of the National Transportation Safety Board. But no, I do not believe, and we have individuals from the Board here that could elaborate on that. I don't believe the condition of the tracks or the equipment that was used was at fault. Ms. Napolitano. Thank you, Madam Chair. Ms. Brown. Thank you very much, Mr. Gonzalez, for coming. Mr. Gonzalez. My pleasure. Thank you. Ms. Brown. Would our second panel please come forward? We are pleased to have a distinguished panel of witnesses this afternoon. Before I introduce them, I will ask unanimous consent to allow 30 days for all members to revise and extend their remarks and to permit the submission of additional statements and materials by members and witnesses. Without objection, so ordered. I would like to welcome the Honorable Joseph Boardman, who is the Administrator of the Federal Railroad Administration. Welcome. We will have the Honorable Robert Sumwalt, who is Vice Chairman of the National Transportation Safety Board. He is accompanied by Bob Chipkevich, who is the Director of the Office of Railroad, Pipelines and Hazardous Materials Investigations at the NTSB. And we have the Honorable Calvin Scovel, who is the Inspector General of the U.S. Department of Transportation. Finally, we have Ms. Katherine Siggerud, who is the Director of Physical Infrastructure Issues for the U.S. Government Accountability Office. Let me remind the witnesses to limit their oral statements to five minutes. Your entire statement will appear in the record. We will also allow the entire panel to testify before questioning. Administrator, you may begin. TESTIMONY OF THE HONORABLE JOSEPH H. BOARDMAN, ADMINISTRATOR, FEDERAL RAILROAD ADMINISTRATION; THE HONORABLE ROBERT L. SUMWALT, III, VICE CHAIRMAN, NATIONAL TRANSPORTATION SAFETY BOARD, ACCOMPANIED BY BOB CHIPKEVICH, DIRECTOR, OFFICE OF RAILROAD, PIPELINES AND HAZARDOUS MATERIALS INVESTIGATIONS, NATIONAL TRANSPORTATION SAFETY BOARD; THE HONORABLE CALVIN L. SCOVEL, III, INSPECTOR GENERAL, U.S. DEPARTMENT OF TRANSPORTATION; KATHERINE SIGGERUD, DIRECTOR OF PHYSICAL INFRASTRUCTURE ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE Mr. Boardman. Madam Chairwoman, I also congratulate you. Being here the last year, and I think the most often witness, I know you were sitting on the other side, and congratulations. Thank you for having me here today. Ranking Member Shuster, I also appreciate being here with you today and all the members. And the full Committee Chair, Mr. Oberstar, thank you for being here. In your opening remarks, Madam Chairwoman, you talked about the fact that the reauthorization bill expired in 1998. We are allowed, as FRA, because of the Appropriations Act that we deal with each year, to have the legislative and legal authority to operate the safety program for the United States. DOT submitted proposals in 1998 and 1999 and 2002 and in 2003 for a reauthorization of the bill, but none of those were accepted or adopted. No action occurred in the 108th or 109th Congress, except for S. 1402. The FRA has a proposal in clearance now, and we look forward to working with the Committee on the bill in the future. The leadership of this Department and this Agency has changed. The most recent change in leadership in the Department is a new Secretary, Mary Peters. Her interest and support in rail safety generally, and rail safety specifically, are very strong and I appreciate being here for her. The FRA is to rail, quite frankly, because of the railroad model, what the FHWA and what the FMCSA and the NHTSA operations combined are to roadways. In addition, private railroads handle their own tasks, tasks that in the highway model are done by the State DOTs for the highways, and by the FAA for aviation. Railroading is much older than that. In many of the safety areas themselves, tank cars as an example, the railroad industry has an important safety delegation that they've been handling for 40 years or more before the DOT had actually been in existence. And yet the most important part of what I want to talk about today are the FRA and its people. The people that do a job with excellence, with integrity, with teamwork and with partnerships, whether it's with a State or the industry or among themselves and among these agencies. We are staffed at approximately 800, with 500 of them in the field, an inspection staff of approximately 400 in 8 regions who are experts in track, signal and train control, motive power and equipment, operating practices, and hazardous materials. We have 18 full-time grade crossing specialists and supervisory and support staff. It is a small agency, but it demonstrates an ability to deliver, I think, big results. Especially with our State partners, there are another 160 inspectors out in the field as well. The FRA works every day to reduce both the frequency and severity of railroad accidents. And real progress, I can tell you, is being made in implementing our National Rail Safety Action Plan and our Grade Crossing Action Plan. Passenger safety rulemaking and other key initiatives are also making railroads safer today. In the National Rail Safety Action Plan, the strategy was to target the most frequent, high-risk causes, focus oversight and inspection better, and accelerate research to reduce risk. Our initiatives encompassed, and I will talk a little bit about that in my answers, I think, to reduce human factor accidents, improve track safety, improve hazmat safety and preparedness, better focus our inspections and improve highway rail grade crossing safety. I appreciate the opportunity to speak today and I will answer your questions as you choose. Mr. Sumwalt. Good afternoon, Chairwoman Brown, Ranking Member Shuster and members of the Subcommittee. I am Robert Sumwalt, I am the Vice Chairman of the National Transportation Safety Board. With me today is Mr. Bob Chipkevich, Director of the NTSB's Office of Railroad, Pipeline and Hazardous Materials Investigations. Thank you and your staff for focusing on the important issue of safety of our Nation's railways. Let me begin by saying that railroad fatigue is an important issue at the Safety Board. Fatigue has been on our most wanted list since 1990, and as you know, fatigue is widespread in every mode of transportation, especially rail crashes. The Safety Board most recently addressed this issue in the collision of two freight trains at Macdona, Texas in 2004 where three people died from chlorine gas inhalation. The Safety Board determined that train crew fatigue was the probable cause of the accident. Contributing to their fatigue was the train crew members' failure to obtain sufficient rest prior to reporting for duty because of their ineffective use of off-duty time and train crew member scheduling practices that inverted the crew member rest periods. The unpredictability of train crew member work schedules may have encouraged them to delay obtaining rest. The Safety Board also found that the minimum rest periods prescribed by Federal regulations do not take into account either the rotating work schedules or the accumulated hours spent working and in limbo time. As a result of this investigation, the Safety Board recommended that the FRA require railroads to use scientifically based principles when assigning work schedules to train crew members. The Board also recommended that the FRA establish requirements that limit train crew member limbo time. The FRA responded that it lacked the statutory authority to adopt the requirements contemplated by either of these recommendations. I would like to now briefly discuss transporting hazardous materials by rail. Following catastrophic railroad accidents in the 1970s, safety mandates, such as shelf couplers, head shields and thermal protections have improved the performance of tank cars during derailments. However, despite these improvements, recent accidents such as those in Macdona, Minot, North Dakota and Graniteville, South Carolina, have all raised new concerns about the safety of transporting hazardous materials in tank cars. The Minot accident resulted in the catastrophic failure of five tank cars. The nearly instantaneous release of almost 150,000 gallons of anhydrous ammonia created a toxic plume that affected nearly 12,000. The low fracture toughness of the steel used for the tank shell cars that catastrophically ruptured contributed to their complete fracture and separation. The Board issued four safety recommendations to FRA to improve tank car performance. In 2005, a train in Graniteville, South Carolina encountered an improperly aligned switch, resulting in a head- on collision with a parked train. A tank car filled with chlorine was punctured and a vapor cloud filled the area. Nine people died as a result of chlorine gas inhalation and approximately 5,400 residents were evacuated for days. The Board found that the steel in the tank shell of the punctured chlorine car in Graniteville had a fracture toughness that was significantly greater than the toughness of the ruptured cars in Minot. These improved steel qualities in the Graniteville accident did limit the size of the tank rupture, but it also demonstrated that even the strongest tank cars in service today can be punctured in accidents involving moderate train speeds. Therefore, we recommended that the FRA require operating measures, operating measures such as positioning tank cars toward the rear of trains and reducing speeds through populated areas to minimize impact forces from accidents, and to reduce the vulnerability of tank cars that are carrying gases that are poisonous by inhalation. However, we are disappointed in the FRA's lack of enthusiasm to closely examine how operational measures can be used to reduce these risks. Finally, the need for positive train control systems has been on our most wanted list for 17 years. Our accident investigations have long identified human performance failures, and PTC provides needed safety redundancy to compensate for human error. Last year, several railroads announced that it is time for the industry to move forward on PTC. And on January 8th, the FRA announced its approval of a positive train control system for a major railroad, over 35 specific lines in 17 States. The Board is encouraged by these recent developments and we urge the industry to move aggressively to install these systems. Madam Chairman, this completes my statement and I look forward to your questions at the appropriate time. Thank you. Ms. Brown. Thank you. Mr. Scovel? Mr. Scovel. Chairwoman Brown, Chairman Oberstar, Ranking Member Shuster and members of the Subcommittee, we appreciate the opportunity to testify today on the reauthorization of the Federal Railroad Safety Program. I wish to note that I am new to the position of Inspector General in the Department of Transportation. I have identified surface safety as a key area where the Office of Inspector General can make a significant contribution to the work of the Department and to the Congress' oversight responsibilities. I am pleased that my first opportunity to testify before Congress may assist this Subcommittee in its important work in improving rail safety. As the FRA Administrator noted today, the rail industry's safety record has improved, but significant train accidents continue to occur and the train accident rate has not shown sustained improvement in recent years. Although 2005 saw a downtick, the overall data for 1995 through 2005 show that train accidents increased by 31 percent and the rate of train accidents per million train miles traveled grew by 11 percent. Today, I will focus on two issues that we see as key for reauthorization--(1) improving grade crossing safety and (2) better targeting of FRA's oversight by identifying patterns of safety problems through data analysis. On average, one person dies and three people are injured in the United States every day in grade crossing collisions. This category ranks second highest on the list of causes of train accident fatalities, exceeded only by trespassers. Grade crossing collisions resulted in 42 percent of all train accident fatalities from 1995 through 2005. The railroads and FRA, and in some cases states can do five things to further reduce collisions and fatalities. First, ensure compliance with reporting requirements. Our ongoing work continues to identify significant problems with the completeness of reporting by the railroads to both the National Response Center and FRA's accident reporting system. For serious collisions, immediate notification to the National Response Center is required. We found, however, that between May 2003 and December 2004, 21 percent of serious collisions were not reported. Further, timely and accurate reporting to FRA's accident reporting system, where all grade crossing accidents are required to be reported, ensures that FRA and the states have information on which to identify dangerous crossings and emerging accident trends. Yet, we identified 12 railroads between 1999 and 2004 that did not report 139 grade crossing collisions to FRA on time. Some were reported nearly 3 years late. This is clearly an area where additional enforcement and civil penalties should be considered. Second, develop strategies to increase FRA's involvement in grade crossing collision investigations. FRA does not have the resources to deploy inspectors to the site of every grade crossing collision. As a result, FRA relies heavily on reports submitted by the railroads themselves. We have recommended that FRA take additional steps to broaden its review of those reports, for example, by verifying information supplied by the railroads using information obtained from independent sources such as police reports. Although FRA has stepped up its efforts in the last 2 years, it investigated less than 1 percent of collisions which highlights the need for verification of railroad-supplied information. Third, work with states to establish laws to address sight obstructions. Our work identified 27 states that currently lack state-level laws addressing sight distances at grade crossings where no active warning devices are present. FRA data show that sight obstructions, such as vegetation growth, may have contributed to 688 collisions from 2001 to 2005. FRA should establish national standards in this area and promote state laws adopting them. Fourth, establish mandatory reporting requirements for FRA's national grade crossing inventory system. In June 2004, we recommended that the Department improve the accuracy and completeness of FRA's national grade crossing inventory, particularly the identification of all public grade crossings and the type of warning devices in place, in order to better monitor high-risk crossings and make improvements. An accurate inventory is also important because SAFETEA-LU funding is tied to the number of crossings. This will require joint action by the Federal Highway Administration and FRA. Fifth, require states with the most dangerous grade crossings to develop and an action plan. This past year, FRA worked with Louisiana on what appears to us to be a successful pilot project on a grade crossing safety action plan. FRA should aggressively expand this effort to other states. Now, let me turn to the second issue we see as key for reauthorization. FRA must aggressively implement its data- driven approach and trend identification. By using trend analysis to track predictive indicators and problem areas, FRA could identify potential safety "hot spots." Chairwoman Brown, I see that I am almost out of time. If I may ask for another minute, I think perhaps I can wrap up. Ms. Brown. Without objection. Mr. Scovel. Thank you. For example, circumstances related to the January 2005 Norfolk Southern hazmat accident in Graniteville, South Carolina, both illustrate and underscore the value of trend analysis. Even though FRA began issuing safety advisories 5 days after this accident, this was a reactive measure. Had FRA used the data it already had--that switch problems started trending up in 1997 and took a large jump in 2003--it could have addressed these problems at least 2 years before the accident occurred. FRA has taken action on the recommendations contained in our previous reports. As the Administrator stated in his testimony, FRA recently launched its National Inspection Plan. This is a step in the right direction. It is too soon, however, to tell exactly how effective these measures will be in the long term. We plan to audit FRA's progress as it continues to implement its National Inspection Plan. Chairwoman Brown, that concludes my statement. I would be pleased to answer any questions. Ms. Brown. Thank you. Ms. Siggerud? Ms. Siggerud. Madam Chairwoman, Chairman Oberstar and Ranking Member Shuster and members of the Subcommittee, thank you for inviting me to participate in this hearing today to discuss FRA's rail safety oversight activities. In recent years, a number of serious accidents raised concern about the level of safety in the railroad industry. In contrast to previous decades, during the past 10 years, we have not seen much progress on reducing the rate of train accidents. While we saw that FRA has recently undertaken or planned several actions that look promising, I would emphasize that it is important to make progress and soon on rail safety. My statement today is based on a report we issued last Friday that provides an overview of FRA's safety program. Our report covered three topics. First, how FRA focuses its efforts on the highest priority risks and planning of safety oversight; second, how FRA identifies safety problems on railroad systems; and third, how FRA assesses the impact of its oversight efforts. With regard to focusing on the highest priority risks, FRA has undertaken or planned initiatives that are aimed at addressing the main causes of accidents. The agency's overall strategy for targeting its oversight is the National Rail Safety Action Plan, issued in 2005. In our view, this plan includes elements of a reasonable framework for guiding the agency's efforts. In 2005, 72 percent of our train accidents were attributable either to human factors or track defects. FRA has initiatives to address both these causes. These include new regulations on employee errors, such as improperly positioned switches and the new fatigue model that can be used by railroads to improve train crew scheduling practices. For track, FRA is acquiring two additional track inspection vehicles that can precisely track and also has developed new regulations on inspecting continuous welded rail track. However, most of these initiatives have not yet been fully implemented and their impact on safety will probably not be apparent for a number of years. Furthermore, several of these key efforts depend on voluntary action by railroads. In addition, FRA has already initiated a new approach for planning inspections that uses trend analyses of accident inspection and other data in order to focus inspectors' efforts on locations that are likely to have safety problems. This approach allows FRA to better target the greatest safety risks and to make more effective use of its inspectors. However, it is not clear yet whether the new approach will lead to prioritization of inspections across the Nation or yet to improve safety. Turning now to how FRA carries out its safety oversight, the agency identifies safety problems mainly through routine inspections that determine whether operating practices, track and equipment meet minimum safety standards. Because FRA is a small agency in relation to the railroad industry, FRA's inspections can cover only about 0.2 percent of railroads operations each year. These inspections do identify violations and result in railroads paying fines and taking corrective actions. However, the inspections are not designed to determine how well railroads are managing the types of safety risks throughout their systems that can lead to accidents. Other organizations, such as the American Public Transportation Association, ##@@## and DOT and Transport Canada have implemented approaches to oversee the management of safety risks by U.S. commuter railroads, pipelines and Canadian railroads, respectively. Such risk management programs require the industry to improve system-wide safety by identifying and assessing safety risks and prioritizing them, so that their resources may be allocated to address the highest risks first. These oversight approaches complement, rather than replace, traditional compliance inspections, and therefore provide additional assurance of safety. With regard to how FRA assesses the impacts of its oversight efforts on safety, the agency uses a broad range of goals and measures. For example, it has recently developed new goals that target its inspections and enforcement efforts at reducing various types of accidents, and measures to track its progress. However, FRA lacks measures in the direct result of its inspection and enforcement program, such as to the extent to which they have resulted in correction of safety problems. Under FRA's current focus enforcement policy developed in the mid-1990s, inspectors cite a small percentage of their identified defects, about 3 percent in 2005, as violations that they recommend for enforcement action, generally through civil penalties. This policy relies on cooperation with the railroads to achieve compliance and it is intended to focus FRA's enforcement efforts on those instances of non-compliance that pose the greatest hazard. However, it is not clear whether the number of civil penalties issued or their amounts are having the desired effect on improving compliance. Because it has not evaluated its enforcement program, FRA is missing an important opportunity to obtain valuable information about its performance and any need for adjustment of the programs. In the report we issued last week, we recommended that FRA first develop and implement measures as a direct result of its inspection and enforcement programs and second, evaluate these programs. As part of our recommendation follow-up activity, we will work toward FRA's adoption of these recommendations. Madam Chairwoman, that completes my statement. I am happy to answer any questions you may have. Ms. Brown. Thank you. Now, it is my pleasure to introduce our distinguished full Chair, Mr. Oberstar. Let me just note that Mr. Oberstar started in this Committee, as a staffer, 44 years ago, and now he is going to have his picture up on the wall. [Laughter.] Ms. Brown. Mr. Oberstar. And in your remarks, will you give us an update on the funding of TEA-LU? Mr. Oberstar. Thank you, Madam Chair. Congratulations on your first hearing. You have demonstrated your commitment to the rail issue over the several years that you have served on the Committee on Transportation and Infrastructure, and you served as the Ranking Member in the last two Congresses. I am very impressed with your work and commitment to the issues of rail and rail safety. I congratulate you on assuming the chairmanship. You have your work cut out for you, it is going to be a very busy session. And I want to welcome Ranking Member Shuster in this new capacity. He was chair of the Economic Development and Public Buildings Subcommittee in the past Congresses. I know that big rail yard in his district where we had a hearing early on in his service in Congress, he has a very deep personal and professional district interest in rail and rail management and rail safety issues. We are going to have a very busy session of Congress on rail issues and spend a good deal of time on the wide range of matters, including Amtrak, which will be a subject of this Committee's affections in the coming session. I should also express my appreciation to Mr. LaTourette for his chairmanship. I did that this morning at the Coast Guard hearing, but thank you again for your leadership over the past several years on the Rail Subcommittee issues. I was very interested, I read through at length, Mr. Boardman, your list of initiatives that FRA has undertaken. I want to compliment you on the action taken. I must say that many of these have been a long time coming. Some were in the works, other initiatives have been on the shelf for quite some time. But you are certainly moving in the right direction. I want to, as I have done previously, emphasize the human factors in rail safety. Not just in rail safety, but in trucking, in aviation, in maritime, in inland waterway navigation systems, in everything in transportation. Airline pilots, flight attendants, air traffic controllers all are subject to the limitations of the human body, which has not evolved enormously over the last 50,000 years. We are still subject to the circadian rhythms to which our bodies respond. You cannot push the human body much beyond those limits for a very long period of time, or something fails. I remember myself as a college student working in the iron ore mines in Minnesota, in the midnight shift, the graveyard shift, we called it. I was stationed on what we called the rock dumps, where the trains were bringing gondolas of waste rock from the mines. I was at a switch where we had to direct the trains into one of three dumps. And at 2:00 or 3:00 in the morning, even as a 20 year old with a lot of energy, a lot of vigor, I finally resorted to marking down on sheets which dump I had which train on. And then I wasn't sure. It just scared the liver out of me that I might send a train up and rear-end somebody and kill a person. I never did. Those periods, however, of switching trains were interrupted by the responsibility then to, in a rain storm, take a 90 pound jack on your shoulder and go up to the end of the track and jack up a track that had slipped away and put rock under it to support it. That kept you awake for the next few hours. But what we have seen in failure after failure is, in all the modes of transportation, is the fatigue. Vince Lombardi said it very well: fatigue makes cowards of us all. He didn't mean the cowards in failure to, the courage to stand up, makes us less able to assess, confront, anticipate, respond to, be nimble, be effective in that moment of crisis when it's needed. That is a major responsibility of FRA, and of the NTSB. Mr. Sumwalt, in your testimony, which was well done and highlighted with very keen specifics, addressed that issue. And Mr. Chipkevich, over the years, you have been a great asset to this Committee in your work at the NTSB and we are grateful for your service, your professionalism. Mr. Scovel, I appreciated the opportunity to visit with you shortly after you assumed the position as IG. As a former Marine, you understand fatigue. You drove people to the point of breaking. [Laughter.] Mr. Scovel. I will claim the fifth on that one, sir. I am glad my former subordinates are not here today. Mr. Oberstar. But you also understand that the FRA has to take action on these initiatives that it has set forth and to conduct vigorously its responsibility of oversight of the industry. Mr. Scovel. Indeed it should, sir. We have identified a couple of areas in our testimony where we believe the Federal Railroad Administration can target its oversight better and increase its enforcement efforts. Mr. Oberstar. Ms. Siggerud, GAO has once again provided a great service to transportation in this excellent report on rail safety, much of which I have read. I still have about half of it to go through. But it is an excellent blueprint for action as we move forward on the reauthorization. I look forward to your continued participation and thank you for your testimony. Ms. Siggerud. Thank you. Mr. Oberstar. And you asked me, we did very well, I must say, colleagues, in the Appropriations Committee consideration of the continuing resolution. We have the $39 billion funding that equals the authorization level for highway and transit accounts in SAFETEA-LU, $35 billion in the highway account and $4.3 billion something in the transit account. So the solidarity of the members, Democrats and Republicans on this Committee, I think had its effect with the Appropriations Committee. Now when that bill comes to the House floor tomorrow, we all have to get up and vote for it. We asked them to fully fund, they have, and now we have to support it. Thank you. Ms. Brown. Thank you for your leadership, Mr. Chairman. Mr. Shuster. Mr. Shuster. Thank you very much. Mr. Scovel, you said that at the centerpiece of rail safety is grade crossings. I wondered, it seems to me to be extremely difficult because of the people doing dumb things, trying to outrun trains, in some cases you may have the town that is responsible for some of the signage that doesn't put signs back up and don't participate. You laid out five points, I think it was five points, on what we need to do. You talk about other things that we can do today, because it is impossible to put a bridge over a tunnel under everywhere a railroad crossing is. It is just a fact of life. I know we have had education problems out there. So if I could get you to comment on what we can specifically do to improve and diminish fatalities and accidents at railroad crossings. Mr. Scovel. Yes, sir. If I may elaborate on the five points that I outlined in my oral statement, there are approximately 3,000 grade crossing accidents a year, one fatality and three injuries every day. Those numbers are down since 1995, but they are up during recent years 2003 through 2005. With better enforcement of Federal reporting requirements, we believe that FRA will be able to better identify dangerous grade crossings and target its enforcement efforts, its remedial efforts, and use SAFETEA-LU funding to improve conditions on those. I think you are absolutely right, Mr. Shuster, when you say that there are certainly people who will do dumb things, to use your term. Knowing human nature, we cannot prevent that. However, there are far too many people who have been caught at grade crossings that haven't been sufficiently marked or where vegetation has overgrown the roadway approach to the crossing. And because the sight distances have not been maintained, a train caught them unaware. And these are truly innocent people. So we have two broad categories. One, certainly people that we regret losing, but the second category, most certainly people who are truly innocent victims in their loss. Reporting requirements. There are two categories of reporting requirements. One concerns serious collisions and I mentioned those earlier. Those must be reported to the NRC within 2 hours. In November 2005, we reported that 21 percent of serious cases were not reported at all. It is disturbing to think that probably those serious cases were reported to railroad company authorities, to the operations center, to a dispatch center, to corporate headquarters, to a general counsel, to the company's insurance company. Yet, the Federal agency responsible for determining whether a Federal investigation should be conducted after a grade crossing collision was not informed. And that is in one case out of five. Our recommendation in 2004 to the FRA, which they adopted and have shown good progress in meeting, is that they reconcile cases reported to the National Response Center with cases submitted monthly to their own database. And further that they assess and collect civil penalties for the railroads' reporting failures. As I mentioned, they are making good progress on that. Our latest numbers through 2006 show that there have been only 12 serious cases that were not reported on time to the National Response Center. The second reporting requirement concerns all grade crossing collisions. Those must be reported within 30 days of the end of the month in which the accident occurred. This is important, not only to identify dangerous crossings, but also for state departments of transportation to determine how they should spend Federal money on grade crossing improvements. Our recommendation is that the Federal Railroad Administration conduct periodic reviews of records maintained by the railroads to ensure that grade crossing collisions are reported on time. By comparing railroad records with those in its own database, there may be some discrepancy that may serve as a basis for the assessment and collection of civil penalties on down the line. Sight obstructions is probably an area that we believe would yield immediate results. There are over 237,900 grade crossings, public and private, in this Country; 76,000 public grade crossings are not protected by automatic warnings devices. From 2001 through 2005, 688 grade crossing collision reports of 15,406 were identified as involving some kind of sight obstruction. It might have been standing railroad equipment, it could have been vegetation overgrowth, what have you. Twenty-three States currently have laws governing sight distances at crossings, but 27 do not. I invite the Committee to look at my written statement, which was submitted for the record. Page 7 contains a gripping photograph of a grade crossing in Illinois that illustrates the before and after results of proper maintenance of sight distance at a grade crossing. Mr. Shuster. I wondered if I could ask Mr. Sumwalt and Mr. Boardman, do we have any numbers on many different reasons, whether it is sight obstructions or whether technological, whether there needs to be technology there, or people doing dumb things, do we know what the percentage is of people trying to beat that train versus people that are crossing because they can't see the train coming? Do we know what those percentages are? I think those are key numbers to be able to determine what we need to aggressively pursue. Mr. Boardman. I think we know some of the numbers, Congressman. We have had since 2004 a grade crossing action plan that is getting results. When we look at, I just pulled statistics for 2001 and 2005, just on grade crossings themselves, the fatalities in 2001 were 421 and we are down to 357. I recognize that they go up and down a little bit. It is, I think particularly frustrating to the FRA and to the industry that we don't seem to be able to push it lower. We have come down a long way since the 1970s and the 1980s. But we are getting down to a level now that it is much more difficult. The action plan looked at a lot of different kinds of things, including studying using video crossing cameras. One in Pittsford, New York on the CSX line itself, that we had a report in August of 2006 that was submitted on that and what we could do to improve and use that to cut down the number of crossing accidents. On the 15th of February, I will be up in New York finalizing a series of public workshops that we have had on private rail crossings to look at what we could do with about 94,000 private rail crossings that are not eligible for things like the Section 130 program to improve crossings. Because our true belief is, every single crossing, 250,000 plus or minus crossings, needs treatment of some sort. It could be four quadrant gates, or channelization. It could be just wider pavement or markings or crossbucks or whatever it is for that particular crossing based on the risk, to reduce the number of incidents, collisions and accidents. That is part of our partnership that was mentioned earlier with Louisiana. Texas is looking at that. We have a sealed corridor in North Carolina that we have particularly good experience with, and we are working with California now on that same kind of sealed corridor there as well. Mr. Shuster. But there is no data on the, what did you say, 450 fatalities at grade crossings last year? Is that the right number? Mr. Boardman. We can look at that specifically and get back to you with how we do break out what the reasons are. [The information received follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Shuster. It seems to me that if we don't know why the majority of them are happening, we are never going to be able to come to a solution. Because again, and my guess is if we have trespassers, too, the trespassing and those combined, it is overwhelmingly the reason for fatalities. If we don't find out the reason why it is happening, we are never going to solve it. Because you are never going to solve and stop people from going around a grade crossing, not paying attention. So those are things I think we have to determine. Mr. Boardman. May I respond to that? Mr. Shuster. Sure. Mr. Boardman. I think you are absolutely right. In fact, in 1997, the number of trespasser fatalities went above the grade crossing fatalities for the first time and it stayed there since that period of time. We are looking now and working with our partners and trying to find a way to profile those trespassers to find out the reason or the particular profile on the trespassers themselves, to look at reasons so that we can come up with solutions for reducing that number. Many of those are in the urbanized areas, and we do have some data, which we will be happy to share with you on what the other reasons are. But we have seen, and especially with these videos now that we have right in the trains, that for whatever reason, sometimes it is inattention, sometimes it is inattention because of alcohol use, sometimes it is thinking you are going to beat the train, that people actually go around our quadrant gates and others to beat the train. Mr. Shuster. My time has expired, and in my enthusiasm to ask my first question here, I wasn't paying attention to the clock. I thank you. Ms. Brown. Not a problem. Perhaps we will have a second round. I want to give Mr. Braley an opportunity to ask questions, and we will come back around. Mr. Braley. Thank you, Madam Chair, and thanks to the distinguished panel for taking the time to talk to us today about this important subject. Mr. Scovel, my father enlisted in the Marine Corps when he was 17, went ashore at Iwo Jima when he was 18. I think I have some sense of what your subordinates went through, since I was his subordinate growing up. One of the questions I want to ask you about has to deal with your comment about, with better enforcement of the reporting requirements, we can improve conditions at grade crossings. One of the things that was included in Mr. Boardman's materials was a proposal to revise the schedule of civil penalties for safety violations. My concern goes to the level of penalty associated with reporting and compliance with the action plan. As an example, one of the things that I can tell you from my former life is, having a reporting requirement and an action plan requirement and having it in place is one thing. Getting compliance from the subjects who are being required to make reports is another. One of the things we know is the Joint Commission on Accreditation of Health Care Associations has a sentinel event reporting process for medical errors that occur at hospitals. Despite the fact that the Institutes of Medicine projected 48,000 to 94,000 people die every year due to preventable medical errors, we know from their statistics that only 300 of those reports are filed on average every year. So my question for you is, what type of penalty is associated for non-compliance with the reporting requirement that we are talking about, and is that part of the revisions to the schedule of civil penalties that are being proposed? Mr. Scovel. I will defer to Mr. Boardman on some of the specifics to your question, sir. But if I may, it is my understanding that reporting of instances of failures to report may be subject to the assessment and collection of civil penalties. One of the things that we have worked with in the course of our studies has been the process by which FRA assesses its penalties, then aggregates them and then meets with each of the affected railroads to discuss settlement of those penalties. It is not clear to us, and frankly, we have not had an opportunity to delve in great detail into this area. It is not clear to us the extent to which any agreed settlement represents a complete aggregation of all assessed penalties on the table, or whether there is a penalty by penalty reduction or mitigation of the amount concerned. As I stated, we have not had a chance to examine that. We do know that FRA has recently reemphasized its civil penalty program, both with increased amounts and with increased attention to assessing and collecting a higher percentage in each category. By way of numbers, I can say settlement percentages after negotiations with the railroads have increased from 55 percent to 64 percent between Fiscal Year 2002 through FY2006. We are cheered by that approach, most certainly. I would defer to Mr. Boardman for other specifics that may be more helpful to your question. Mr. Braley. Mr. Boardman, would you care to comment, please? Mr. Boardman. Because of the type of information you need, I would like to be able to respond in writing to you on what we have done to reenergize that. Mr. Braley. Is that part of your written proposal dealing with revisions to the schedule of civil penalties, or is that related solely to safety violations? Mr. Boardman. Do you mean in terms of the proposal that we are considering that is in clearance? Mr. Braley. Yes. Mr. Boardman. We are looking at that particular area. I don't have it and can't talk about this minute what might be in there. Mr. Braley. Would it be possible to follow up and provide further information? Mr. Boardman. Yes. [The information received follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Braley. I would appreciate that. One of the other things that you mentioned was that the 2004 grade crossing action plan was getting results, and I assume that it was impacting the number of fatalities and other injuries resulting from violations at grade crossings. Is there anything else that the Department is considering that would deal with new innovations in warning systems that are being used at grade crossings as part of this overall safety plan? Mr. Boardman. Well, the agency has been involved with the intelligent transportation system technology folks all the way along and looking at how in the future the technology that is going to be actually placed in the automobile may provide additional mitigation of or warning, I should say, crossing the railroad. We are certainly looking at every technological improvement to do that, including using solar power to light some of the crossing signs we have used. One of the things that we have done in this process, I always murder the term, is better conspicuity of the trains themselves by placing tape that you can see on the train. I was surprised when I came here how many of these collisions occur by somebody driving into the side of a train, especially on a darker crossing. So yes, we are working on those. Mr. Braley. Thank you. Ms. Brown. Mr. LaTourette. And let me just say that it was such a pleasure serving with you and working with you as your Ranking Member. I am so glad that you are on my Subcommittee. I am also looking forward to working with you. You exemplify what is important about working together in bipartisanship on this Committee. Thank you very much. Mr. LaTourette. I thank the Chairwoman very much. I want to join the mutual appreciation society, I was not here at the beginning of the hearing to congratulate you, but I certainly want to congratulate you on assuming the chairmanship of this Committee. I have enjoyed our relationship over the course of the last Congress. I felt that we were able to get a lot of things done and it was in large part because of you and your staff. So I congratulate you. I also want to congratulate my friend, Mr. Shuster, for being the lead Republican on the Committee. As you all know, I have been promoted to the Coast Guard Committee, of course. But I am looking forward to working with Mr. Shuster as well. Mr. Boardman, welcome to you. It is good to see you again. Let me just ask you, where are we with the whistle ban rule? [Laughter.] Mr. Boardman. Thank you so much for that question. Mr. LaTourette. You are welcome. Mr. Boardman. We have finalized. The final rule was in April of 2005. We had clarifying amendments for that that were completed in August of 2006. As of January 18th, we have 259 quiet zones, and we have approximately 40 communities that are now in the establishment process. We looked at the results actually for the train horn rule. We have had 66 accidents after the zones were established, 24 in 2005 and another 42 in 2006, and 2 fatalities and 19 injuries among those accidents. And when we compare the data to the crossing data from 2000 to 2004, it doesn't suggest that the quiet zones are having an adverse effect. Mr. LaTourette. Thank you very much for that update. Mr. Scovel, I want to talk about a couple of your recommendations. One is my view, and my view only, that if there is a requirement that people report accidents, they should report accidents. If they don't report accidents, there should be a penalty. But putting that aside, I don't want the record to have an implication, because you use the word railroad supplied information. Is there anything in your analysis or research that indicates that the information is being supplied by the railroads when they report is somehow bad information? Mr. Scovel. Thank you, and I would like to take this opportunity to clarify that. To my knowledge, our research has not indicated intentional false information supplied by the railroads. This responds as well to one of your questions, Mr. Shuster, specifically concerning causes. Because I think this addresses both of your concerns. In the reporting requirement to the FRA database for all grade crossing collisions, there is no requirement that the cause of a collision be identified in the report submitted to the FRA. So whether it was a trespasser, for instance, or an innocent motorist caught on the track by an approaching train, it is not always immediately apparent from the report submitted to the FRA. That may be included, but it is not required to be. And that was the basis for one of our recommendations as well, that FRA increase its involvement in the investigation of grade crossing collisions by screening not only the information contained in its own database, but also going back to the railroad's own records, to see what those records may indicate, by reviewing data contained on the locomotive event recorder, if that is available. And also by checking with local or state law enforcement authorities, who may have had an opportunity to respond to the scene of an accident, and they may have been able to document the cause as well. I don't mean to say that the railroads, at least according to our research, have intentionally mislead any Federal authority. Our concern is with the timeliness of that reporting and then FRA's ability to follow up and conduct whatever investigation its admittedly limited resources may permit. Mr. LaTourette. And we are on the same page on that, and I think I said that. If there is a rule that the railroad should report something, they should report it. But I just wanted to be clear, it seems to me if they report a fatality at a grade crossing, there is an ability for the FRA to go get the police report from the town. And that brings me to, before I let Administrator Boardman hop in, that leads me to your observation that there was some, prior to the Graniteville crash, there was some information available dealing with switches. I guess my question is, what do you think the FRA could have done in that my understanding of Graniteville was that some people were in a hurry and left the yard and didn't put the switch back. I don't know what the FRA could do to, I assume people know that you are supposed to put the switch back. So I don't know that any amount of education is going to solve that problem. So maybe you could clarify what you were talking about with the switch in Graniteville. Mr. Scovel. Sure. My understanding of the circumstances of that accident is that a train proceeded down the track, it was time for a rest period, using a switch, the personnel on that train put their train onto a siding but didn't walk back to properly align the switch to the rear. A train with hazardous material aboard proceeded down the same track, and because of the improperly lined switch, collided with the train that was off on the siding. Mr. LaTourette. Right. Mr. Scovel. Our understanding is that FRA had been tracking switch errors for some years before the 2005 Graniteville accident. Our review of that data shows that from 1997 through 2005, the number and rate of accidents caused by switch errors steadily increased. There was a large jump in 2003. Had FRA's safety office at the time been properly attuned to using predictive factors as the basis for alerts on safety issues, it might have been able, and again there is no guarantee, we certainly acknowledge that, but it might have been able to put the word out sooner about the dangers and the increased number of improperly lined switches. Mr. LaTourette. I get that, and I think maybe on this point we can disagree without being disagreeable. I think that most folks that work on the railroad know that you have to align the switch when another train is coming. Administrator Boardman, did you want to jump in on my other one and then I will be happy to be finished? Mr. Boardman. Sure. A couple of things, just to clarify, and I think actually, Mr. Scovel did clarify. The reports that weren't reported on the grade crossings really had to do with telephonically reporting them. There was a failure to telephonically report them, but they were actually reported in writing. So that was the disconnect there. Part of that may be because we broadened the requirements back in 2003, where it used to be you had to have five or more fatalities before you had to call in, and then that changed. So I think he has recognized that in the report. I just was clarifying that. In terms of the trend analysis, that is certainly something we would like to be able to do, to identify and predict these kinds of accidents beforehand, and we are addressing it in our human factors NPRM that was issued October 12th on the three cardinal operating practices. But when you really look at it, and I am just looking here at the improperly aligned switches, most of them occurred in yards. This was a mainline switch. There was this big increase from 2002 to 2003. But there was also a reduction again in 2004, and still it was in these yards rather than on the main line. So we understand the concept, the idea. I think putting it in practice is somewhat difficult with the data that we had. Mr. LaTourette. Sure. I thank all the witnesses. I thank the Chairwoman. Ms. Brown. Just for the benefit of the audience and the witnesses, and also the members, we are going to come back. We are going to have a second round. We are going to adjourn now until 4:00 o'clock, so we can go and vote and come back. I haven't had an opportunity to ask my questions. Thank you so much. We stand adjourned. [Recess.] Ms. Brown. The Committee is officially back in order. Ms. Napolitano, you can have your five minutes of questioning. Ms. Napolitano. Thank you, Madam Chairwoman. I would like to have permission to submit other questions, because I know I am not going to have enough time to proceed in all the lines of questioning that I would love to pursue. Ms. Brown. Without objection. Ms. Napolitano. Thank you, ma'am. To Mr. Sumwalt, you talk about railroad fatigue, the employee fatigue. My concern is also with the rail fatigue and the infrastructure fatigue. Identifying the areas how the railroad is addressing the life of a rail, because it does have a life, at least in the hearings that we have had in California over the derailments, I have been given several figures on the supposed life of a rail. My concern, especially in our area in California, is because of the proposed increase of the Alameda Corridor East traffic ten-fold or so in the next 15 years or so, that the increase in fatigue of the rail, the number of rail cars, the increase in the trains, they estimate one every ten minutes, one every six minutes, depending on who you talk to, is how do we identify that the railroads are upgrading the infrastructure to be able to safely handle the increase in the traffic, the increase in the load of the trains themselves, the amount of trains? And of course, that goes along with all the other questions about the rail crossings, about the insulated joint bars or the signalization, all of that. And how do we protect, how can we then look at that along with the employee fatigue? Mr. Sumwalt. It's a great question, Congresswoman. Would you mind if I let Bob Chipkevich answer that question? Ms. Napolitano. Not at all. Mr. Sumwalt. Thank you. Mr. Chipkevich. As you noted, there are many factors that affect the life of a rail. The gross tonnage, the number of trains operating over the condition of the ties and ballast, the supporting structure, that all affect how the rail is going to wear. Certainly what is important is to have a very good inspection program that is very disciplined, and a testing program, so that you can find defects before they grow to a critical size and fail and get that defect out of that rail and out of that line before you have a train accident. So the key really is to have a good, solid inspection program, a good testing program, one that can identify defects before they get to a particular size that is critical. Ms. Napolitano. After the several derailments in my area, as I have stated before, they have increased the testing, they have increased the inspection over the area, so we have not luckily had any other episodes. But who is in charge of the inspection and how often should it be done? I know you have specifics, and that should be a question that I don't need answered now, but I certainly would like to have it in writing, for this Committee to be able to understand the other factors that could cause accidents, besides the employee fatigue that we are talking about. In my area, after 9/11, there was a golden handshake with many of the railroad employees, they did not pick up new employees as easily. And when we had the increase in the ACE corridor, the Alameda Corridor East, they were talking about unmanned cars. We had a runaway train, I don't know if you remember or were aware of that one. It ended up in the Seals District. Thankfully nobody was killed. But it was not only an inconvenience, but it cost a lot of money, several million dollars worth of problems. And then of course there was talking about putting on unmanned cars, which I think is totally unacceptable. Because there is no determination of what they are going to encounter along the rail lines to be able to deal with and have an individual make a decision rather than somebody at a switch line somewhere trying to put those cars forth. You were talking about placing the hazardous material in the back and decreasing speed. We were informed by the rail folks that they end up putting speed as they go outside of the general area, coming out of the rail yards. They go through certain areas and of course, they do interfere with traffic, as I said, all the grade crossings we have. But they also have a habit of pulling on their switch, on their horn at all times, and that is of course not acceptable in urban areas, because there are people sleeping at 2:00, 3:00 in the morning. And that has been another area of concern with the local individual cities. With that said, like I said, I have a whole bunch of questions and I have to go to another committee, but how do we allow the States to be able to garner information from the cities or the police departments for information on accidents that are not reported otherwise? And how do we force the railroads to identify all accidents, not just those that qualify to be reported by them, given their criteria? That to me is something that we certainly want to assure the American public that we are looking at everything that affects them, not just what the railroad folks deem is acceptable as a reportable item. And I think my time has run out, Madam Chair, but I would certainly like to include several other questions in my committee reports, because I do have a lot of them, that deal with working with the States, working with the State public utilities. The statement that was submitted for the record from Steve Larson, the Executive Director, California PUC, it states that California needs and desires more direct accountability for railroad safety. I am sure you have copies of it, so that you can see his conclusions. Hopefully you will be able to address them to this Committee some time in the future. Thank you, Madam Chair. Ms. Brown. Thank you. Mr. Boardman. Madam Chairwoman, can I just respond to part of that, at least, if it's all right with the Congresswoman? Ms. Brown. Yes. Mr. Boardman. In particular, because of the partnership that we had with the California Public Utilities Commission, after the Pico Rivera accident, and in particular, the team that got put together really included the Public Utilities Commission on that particular accident. And that was one of the joint bar accidents that you identified, Congresswoman. In fact, what happened, immediately afterwards, after we did the inspection, the Commission also joined us in our RSAC group, which is the Railroad Safety Advisory Committee, and was actively involved in the consensus to get to a final rule that really required on-foot inspections of these joint bars. The final rule was actually published just this last October. So we do have very effective and full cooperation with the Public Utilities Commission. We are looking not just at this level of on-foot inspection, we also demonstrated, back in 2005, and then enhanced photo imaging to detect the cracks on high rail vehicles with the railroads again, in 2006, with GPS being added. Now we are enhancing it again to make it simpler, lighter, and less expensive in 2007. We are deploying, somebody said earlier, what we call the T18 vehicle. We will actually have five track geometry vehicles that the FRA owns that will be out looking at 100,000 miles of track a year. And we are seeing from 2001 to 2006 a reduction both in the percentage of the number of accidents that occur because of track defects, and the actual numbers of them as well. So I just wanted to let you know that we are staying on top of it. Your California Public Utilities Commission is working with us on it, and we appreciate that. Ms. Napolitano. Mr. Boardman, I was the one who called PUC and got them involved. Mr. Boardman. Yes, ma'am. And we kept them involved. Ms. Napolitano. Well, hopefully we will continue to, because they have better information than anybody else, so far as some of the rail accidents that happen in California. The research and development, I still have not gotten a report on the piece of joint bar that was sent for inspection to Washington from that accident. And there was supposed to be a follow-up as to the R&D that was going to be submitted to a university for research of how to address, how to identify it, how to see through the joint bar. Because apparently there is certain technology that is not totally able to see those hairline cracks inside the joint bar. Mr. Boardman. Congresswoman and Madam Chairwoman, if it pleases you, I will have my staff contact you and make sure you have that information. Ms. Napolitano. I would appreciate it, with a copy to the Chairwoman, because they were involved with us at that time. Mr. Boardman. Yes, ma'am. Ms. Napolitano. Thank you. [Information received follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. Brown. Thank you. And any questions that you have, just submit them for the record and we will follow up. Mr. Boardman, what is the FRA doing to prevent human factor accidents that are not related to fatigue? Mr. Boardman. Human factor accidents, and I know that fatigue, we're going to have a hearing on. So I do appreciate the fact that you identified that. We know at this point in time what the top causes of human factor accidents are. Some of them have been pointed out today and certainly, leaving the switch aligned incorrectly is one of the number one causes. Another one is leaving cars out to foul the main track. And the third one really is shoving a cut of cars into an area that doesn't have enough space for those cars. And those really are the cardinal operating rules for each of the railroads in human factor accidents. On October 12th, we published a NPRM to make those rules become Federal rules. That is working itself forward. We would expect by the end of this year, late in the year, we will have a final rule on that. We also have kicked off and will have a ceremony, I think, next month at UP on the close call reporting system. And we have other railroads that are also interested in that. That is just an ability to look at and find something that should have been an accident that wasn't an accident by having it reported by the employee and then protecting that information for the employee so we can find out what is happening. It has been very successful in the FAA. A third area that I think we have had good success with thus far, is working with BNSF out from Avard, Oklahoma to Oklahoma City, I think. I can't remember right this minute. We have a switchpoint monitoring program on dark territory track, which is one of the areas that is of particular concern to us, and is part of one of the major accidents that we had in January of 2005. Ms. Brown. I understand that the FRA is working on a project with Union Pacific and Dow Chemical to come up with the new tank car standards. Can you give us an update on that? Mr. Boardman. Yes, ma'am. Since the Minot disaster back on January 18th, 2002, FRA has had a plan to look at and work on the steel that is in tank cars, and has accelerated, because of safety and the interest of the Congress, the kinds of research that it would take with the Volpe Center in Massachusetts to get not only an idea of what we need to do with the steel, but also to get a baseline for performance of the current fleet of TIH vehicles and the historical accident data this year. We expected that we would get all that data and then what we would do is begin to build a new rule. But we pushed that forward in cooperation with this memo of agreement that we announced just December 6th for a next generation tank car that is being worked on by Union Pacific, Dow Chemical and Union Tank Car as well. That case will be using the Transportation Technology Center to test the tank cars and verify the baseline work that Volpe is doing. Our expectation is that together with PHMSA, we have had a couple meetings with the industry, we are going to have a couple more, and we are going to be able to enhance the performance standards for these tank cars and get a rule out on that by 2008. Ms. Brown. Thank you. Mr. Sumwalt, what can the FRA do right now to make transportation of hazardous materials safer? Mr. Sumwalt. Well, as the Administrator mentioned, there is great promise for the future. But as he mentioned, it will be at least 2008 before the rule is completed. Then it will take many, many years for the industry to equip all the tank cars with those newer cars. So the NTSB has recommended that in the interim, until these new tank cars can come in the fleet, there are operational measures that the industry could undertake. And we have suggested things such as looking at the tank car placement--by restricting tank car placement and by the way, we are only talking about gases, or carrying gases that are poisonous by inhalation. Not everything that goes into a tank car is necessarily catastrophic if the tank car breaks. We are talking about these cars that, if there is a rupture of the tank car, there is not much time for the people in that area to get out safely. So when we are talking about those types of gases, operational measures can give us immediate benefits. Again, tank car placement, we suggested, we recommend considering putting those tank cars toward the rear of the train. We have also recommended issues such as restricting the speeds of trains in populated areas. There are other operational measures that the FRA could look at. Ms. Brown. Would voice or video recorders help you in railroad accident investigations? Mr. Sumwalt. Certainly, Madam Chairwoman, in aviation accident investigations, we have derived great benefit from voice recorders. We have recommended to the FRA--we issued a recommendation years ago on that topic--that we would like to see voice recorders in locomotive cabs. The FRA responded to us and based on their response, we have now classified that recommendation as closed, unacceptable response. As far as the video recorders, we have issued no recommendations concerning video recorders on trains. Ms. Brown. Okay. Mr. Shuster. Mr. Shuster. Thank you. Ms. Siggerud, some have suggested that maybe the Federal Rail Administration needs to have additional resources and personnel to investigate and inspect railroad signals and crossings. Does the GAO believe that that is something the FRA needs, and do you have any scientific evidence to back it up, that it will make improvements in those areas, if they have more personnel? Ms. Siggerud. Mr. Shuster, we did not address that question directly in our recent work. But I would say, going forward, what we think, given the resources that the agency has and its limited ability to reach out and touch through inspection the many railroad operations that occur every year, we think the challenge going forward in this reauthorization is really trying to figure out how to help the FRA expand that reach. We looked in our report at several other models for doing that in related industries, in related organizations. So what we have laid out in the report is an approach to a risk system management. Essentially what that would involve is having the railroad industry itself identify precursors for accidents, look at the risks throughout its system, and then prioritize its resources to address the greatest safety risks. What we would then propose is that some of the inspection force that FRA has be used specifically to focus on those safety systems themselves and whether they are making sufficient progress in implementing that concept. Our view is that FRA could get a wider view of the compliance and the level of safety within the industry using that kind of an approach. Mr. Shuster. So I am not sure I understand, are you suggesting more personnel or-- Ms. Siggerud. No, we are not. That is also because we looked specifically at that issue. Mr. Shuster. That was an issue in your studies? Ms. Siggerud. Yes, exactly. Mr. Shuster. Do you believe, or is there any evidence out there that more timely reporting on accidents will decrease accidents at the grade crossings? Because when I see the evidence, most of the time it is negligence on behalf of the motorist, and not necessarily the rail, or it is the local town that has not done something. Ms. Siggerud. The Inspector General's work on this seems to me to be very thorough, and I am in agreement with their views on this issue. Mr. Shuster. So you believe that more timely reporting on accidents would help the situation? Ms. Siggerud. Yes. Mr. Shuster. Mr. Scovel, you said that 21 percent, I forget the time frame you reported on, is that a trend? Is it something that has been level for the past several years? Or is that something that has just peaked or is it on decline? Mr. Scovel. Yes, sir, that figure is derived from research we conducted for the period May 2003 through December 2004. We reported that number in November 2005. And specifically it was that 21 percent of serious collisions had not been reported at all. Based on that finding, we recommended in 2004 that FRA reconcile the collisions in their own database with those in the NRC database. They have undertaken to do that, and as I mentioned before the break, during the first 10 months of 2006, our numbers show that they have reconciled 2,308 reportable collisions and found 12 collisions at that time that had not been reported. This is during the first 10 months. Mr. Shuster. So it has gotten significantly better? Mr. Scovel. It has, and we give full credit to the FRA for emphasizing those reporting requirements. Mr. Shuster. Did the FRA, did you do anything different in that regard, put a little more pressure on them, change rules, anything that would be obvious? Mr. Boardman. I think we paid attention to what we were told and recommended, and developed a strategy for actually making that comparison. Mr. Shuster. Right. That is a significant improvement. Mr. Sumwalt, recently there was a serious accident in Massachusetts, I believe probably just a couple weeks ago, where a couple folks from a maintenance crew were killed, two or three. Do you believe that operating rules, changing the operating rules is a more effective way, maybe we could have avoided that, or are there technological solutions that you believe could be employed that would be maybe a better way to move forward? Mr. Sumwalt. Thank you. Our investigation is ongoing Congressman, and we will be issuing a report on that as soon as we have all the facts. Mr. Shuster. I will be interested to hear about that in the future. In general, though, could you comment on technological solutions? I think you talked a little bit about it in some of your testimony about using positive train control. Mr. Sumwalt. Absolutely. The Safety Board has had positive train control on our most wanted list since 1990. And it does offer a lot of promise. We are glad to see the industry beginning to move forward. And there is a lot of promise. Mr. Shuster. Where does the FRA stand on that? I believe I read you had not come out with findings, final findings? Mr. Boardman. Positive train control is something that we have worked with Illinois on, with Norfolk Southern, and with BNSF. And we recently approved a product safety plan with BNSF so they could implement that on their service. That was done just in the last few months, in fact, last month. The other thing that we are looking at on technology for train handling are ECP brakes, which are electronically controlled pneumatic brakes. We recently, just this fall, issued a report that generated additional interest again back in the railroads. It was an initiative that actually the railroads, the AAR, really put out several years ago. What it really does is have an electrical line going down along the train, along with the air line, and control the air on the brakes electronically, which gives the engineer much better control of the train itself. We think that will substantially improve safety of train handling, and especially think it is good in unit trains, whether they be coal trains or intermodal trains. So we are making progress in those technological areas as well. Mr. Shuster. Thank you very much. Ms. Brown. As we pass the reauthorization, revision or reform, what is it, and this is open to any one there, what are the most important areas for this Subcommittee to focus on regrading FRA safety activities? Ms. Siggerud. Chairwoman Brown, I think I will just expand on my remarks to Mr. Shuster. We think it is very important for the FRA, given what we have seen as a fairly static safety trend, and accident rates, to do a couple of things. One is to extend the reach of the inspection force it does have, by looking specifically at the safety management systems and the safety culture of these railroad organizations. This will not be an easy change. When it was adopted within the Office of Pipeline Safety within the Department of Transportation, this was something that required a pilot project and implementation over a number of years. Most participants view it as effective in our recent work looking at that. There is a pilot project that has been proposed in this area that I am sure Mr. Boardman can or will say more about. However, it is a pilot project, and it is voluntary. So it will take some time before we see results. We also think it is very important, given the static trend that I mentioned, for the Committee and the Railroad Administration to work together to understand really what are the effects of these various new initiatives. We think the inspection plan looks good. We think the new human factor regulation has a lot of promise. They both are really in the very beginning of implementation. So we need to understand what effect they really will have. Many of the other initiatives are voluntary and will take a fair amount of participation by the railroads to have an effect. Mr. Scovel. Chairwoman Brown, if I may address your question? Ms. Brown. Please. Mr. Scovel. We would break it into two parts, if I may, first addressing the general topic of rail safety. We would ask the subcommittee to urge FRA to aggressively implement its National Rail Safety Action Plan. A component of that is the National Inspection Plan, which we see as holding great promise. We have it on our watch list, if you will. We intend to give it time, give FRA time to fully implement it. I will note that it has been less than a year since it was first instituted. So it is really not ripe yet for our review. But we intend to do that. Another area in the general topic of rail safety would be the items discussed by Mr. Sumwalt specifically, some of the technological and human factors issues that certainly merit this Subcommittee's attention. With regard to the specific topic of grade crossing safety, we continue to be concerned with reporting requirements and the timeliness of those. While those, with regard to the most serious collisions, while those do not hold the promise necessarily of identifying causes, immediately by the report, they do permit the FRA and in some cases even the NTSB to decide whether a Federal investigation is warranted. Those investigations of course would be able to identify the cause. And timeliness of that initial report from the scene gives the Federal agencies time to make the call. The other area that we would urge the Subcommittee to work with FRA on is model legislation, if you will, to assist the states in developing standards for sight obstructions at highway-rail grade crossings. As I hope we made clear in our testimony, that will be key for many grade crossings where there are not active warning devices in place. Thank you. Mr. Sumwalt. Madam Chairman, thank you. I would like to weigh in on that. For at least a decade, the NTSB has issued recommendations to the FRA regarding the need to establish scientifically based principles for fatigue management. Fatigue is a big issue with railroads and all modes of transportation. But in the case of the FRA, they have replied that they do not have the statutory authority to enact the changes, due to the stipulation in the Hours of Service Act. So we have a situation where we are making recommendations to an agency, yet that agency does not have the authority to enact the changes that we would like to see, due to stipulations of the Hours of Service Act. That would be one area that we feel could greatly assist. Mr. Boardman. Madam Chairwoman, we hope to have a bill through clearance and be able to talk about it a little more. I think there are three things I would say. One is that we believe that the pilot program that was talked about a few minutes ago on risk is a particularly important one, if what we can do through that is to ingrain an even greater level of safety culture in a railroad and in a specific location. We know today that we have to change the way that we hold railroads accountable. They have to change the way that they do their jobs today as we all have had to, as we have learned new science, as it is being talked about. So the second thing is that we want the opportunity to be able to apply that new science--that new understanding of what it takes to make sure that human factor issues and risks are reduced. Then lastly, we believe that it is also extremely important for us to have the right baseline data for grade crossings in this Country on an inventory basis. We have difficulty with some of the information that we get now that is not necessarily required. Thank you. Ms. Brown. My last question. The old teacher in me, if we were going to grade the FRA, what grade would we give it? Mr. Boardman. Shall I go first? Ms. Brown. Yes, you can. [Laughter.] Ms. Brown. A professor once told me, if you are going to get an A, what are you going to learn? Yes, sir. Mr. Sumwalt. You would like for me to answer that? Ms. Brown. Yes, sir. I would like everybody to answer that. Mr. Sumwalt. Oh, great. Ms. Brown. So we get a feel as to where we are and where we need to go. Mr. Sumwalt. Well, I look at numbers. We have over the lifetime of the NTSB and the lifetime of the FRA, issued to them 534 safety recommendations. Overall, the FRA has implemented 76 1/2 percent of those recommendations. Now, to put that in perspective, Madam Chairwoman, if we look at all of the other DOT modal agencies and we look at that as a composite, including the FRA, on average, the DOT modal agencies have implemented almost 82 percent of our recommendations. So with that respect, they are below the average of the other DOT modal agencies. But in certain areas, the FRA is doing very well. The Administrator mentioned that in October they issued a final rule on joint bar inspection. We think they did a nice job with that final rule. We also know that joint bar difficulties led to the accident at Minot, the accident at Pico Rivera. So we applaud their efforts for coming out with that final rule. On the other hand, the Minot accident, we found that the FRA's oversight of the railroad's continuous welded rail program was ineffective, because the agency neither had reviewed the program nor did their track inspectors have a copy of the program to determine if the railroad complied with it. Further, in the Flora, Mississippi accident, we found that an FRA inspector had identified deficiencies, but he did not ensure that these deficiencies were corrected. Thus, we found that the FRA's oversight was ineffective in that case to ensure proper maintenance by the railroad. Additionally, after an Amtrak derailment at Nottaway, Iowa, we issued a recommendation to the FRA to require railroads to conduct ultrasonic or other appropriate inspections to ensure that rails used to replace rails were free of internal defect. That recommendation is currently classified as open, unacceptable response. Thank you. Mr. Shuster. I have one question, the 76 percent, does that reflect, that you just mentioned earlier, that statutorily they say they don't have the ability to change, which I would imagine some of those 4,000 recommendations, is that accurate? Ms. Brown. You said 540? Mr. Sumwalt. Yes, ma'am, of the 534 recommendations that we have issued, the acceptance rate is 76 1/2 percent. Mr. Shuster. Any of them dealt with fatigue? Because that is something they have said the law won't allow them to-- Mr. Sumwalt. I would have to defer to Mr. Chipkevich to see how we have classified that. That is a good question. Mr. Chipkevich. Yes, sir, some of those are probably due to some fatigue. But then some were also closed reconsidered, so it would not have a negative impact against the FRA also, because of their response. Mr. Shuster. Thank you. Ms. Brown. Anyone else? Yes. Mr. Scovel. Madam Chairwoman, if I may, we are greatly encouraged by the attention to a number of recommendations of ours that the FRA has devoted resources to recently. Attachment 2 to our written testimony is a table illustrating or setting forth the recommendations that we have made to the FRA in our recent reports, and giving the current status. You will see that a number of those have been closed satisfactorily in our review. A number are open, but we are satisfied that current FRA leadership is devoting sufficient attention to those. As I mentioned, the immediate notification requirement is one that we saw most improvement on recently. We are pleased to be able to report that. We would like to see greater attention to the following items. First moving away from a traditional and reactive approach to oversight by using its inspection and enforcement data to identify safety problems. Number two, issuing safety advisories and regulations to address safety problems before train accidents occur. And again, this would be feasible if FRA aggressively moves to use predictive factors in trying to assess the probability for future train accidents. Number three, using its National Inspection Plan to better focus its resources on key safety areas, like track defects and improperly lined switches, as well as other human factors. Number four, moving aggressively to implement its initiatives to improve oversight and enforcement, such as implementing our recommendation to work with the other states that continue to have the most grade crossing collisions. I mentioned the success, apparent success that we believe Louisiana has enjoyed with its State action plan on grade crossing collisions. Texas we understand is moving in that direction. But there are four other states that, together with Louisiana and Texas are responsible for a great number of grade crossing collisions. We would like to see the FRA move quicker and do more with those other states to develop their state action plans. And finally, we would like FRA to broaden its review of grade crossing collisions in order to verify information with independent sources, like state and local law enforcement. Ms. Brown. Ms. Siggerud? Ms. Siggerud. Madam Chairwoman, I would like to answer your question in a couple of parts with regard to the grade. Looking back, I think it's hard to give a grade in the area of rail safety greater than a C, given that we have not seen significant improvement on rail safety accident trends. However, looking forward, I am standing here with the IG in agreement that we are more hopeful. I would like to say a B going forward, as we look at the initiatives that have taken place over the last couple of years. I would like to explain why I cannot give an A at this time. There are really two reasons. One is that several of the initiatives, including in the key area of fatigue, do rely on voluntary actions by the railroad. The second is that we feel that the Railroad Administration needs to look within itself and report to this Committee and others more about the effectiveness of its key enforcement and compliance program. That is, giving violation notices to railroads and fining them. Other modal administrations within this Department have undertaken such an evaluation under our recommendation and found it to be very useful in adjusting their enforcement programs. Ms. Brown. Mr. Boardman, do you want to add anything to that? Mr. Boardman. Yes, ma'am. I guess in the time that I have been here, I would tell you that the people at the FRA get an A for excellence, an A for integrity, an A for teamwork, and an A for partnership. Ms. Brown. What was the last one? Mr. Boardman. Partnership. Ms. Brown. Well, I really want to thank the witnesses for their valuable input and testimony and the members for the questions. Members of the Subcommittee may have some additional questions for the witnesses. We will ask you to respond to those in writing. The hearing record will be held open for those responses. Members are reminded that the Subcommittee will convene for the second part of this hearing tomorrow at 2:00 p.m. Until that time, the Subcommittee stands adjourned. [Whereupon, at 5:12 p.m., the subcommittee was adjourned.] [GRAPHIC(S) NOT AVAILABLE IN TIFF FOMRAT] REAUTHORIZATION OF THE FEDERAL RAIL SAFETY PROGRAM ---------- Wednesday, January 31, 2007, House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines and Hazardous Materials, Washington, D.C. The subcommittee met, pursuant to call, at 2:00 p.m., in room 2167, Rayburn House Office Building, the Honorable Corrine Brown [Chairwoman of the subcommittee] presiding. Ms. Brown. Good afternoon. The Subcommittee on Railroads, Pipelines and Hazardous Materials will officially come to order. I want to welcome the members and witnesses to Part 2 of our hearing on reauthorization of the Federal Rail Safety Program. In the interest of time, I will submit my opening statement for the record and reserve my remarks for questioning the witnesses. But before recognizing Mr. Shuster for his opening statement, I ask unanimous consent to allow 30 days for all members to revise and extend their remarks, and to permit the submission of additional statements and materials by witnesses and members. Without objection, so ordered. Mr. Shuster? Mr. Shuster. I will follow the Chair's lead and submit my statement for the record, and welcome all the witnesses today, especially the gentleman from North Dakota. Welcome. Ms. Brown. I am pleased to welcome Congressman Pomeroy to the hearing this afternoon. The Congressman has spoken with me on numerous occasions about the accident that occurred in North Dakota in 2002. I understand that a witness from the accident flew to D.C. to be with the Congressman for this hearing, and I want to welcome her also. And also my classmate. So welcome. TESTIMONY OF THE HONORABLE EARL POMEROY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH DAKOTA, ACCOMPANIED BY JEANNETTE KLIER Mr. Pomeroy. Thank you, Madam Chair. It is indeed a pleasure to refer to you in such terms, as well as Ranking Member Shuster, thank you. I have outlined in this testimony a most extraordinary thing, something that I have not seen before, and that is innocent citizens injured as proximate cause to railroad conduct identified in the National Transportation report, and yet we have a very curious ruling by a Federal District Court that says, there is no remedy for these people, that 30 years ago, and in conflict with, by the way, 30 years of case law thereafter, that there was a complete and absolute immunity rendered to the railroad. That needs to be addressed as the Federal Rail Safety Program is reauthorized. The facts of this case are really striking. At 1:39 a.m., January 18th, 2002, a Canadian Pacific Railroad freight train derailed near Minot. The freight train derailed 31 freight cars, 15 of them carrying anhydrous ammonia. Seven of those cars burst. They sent a vapor plume of anhydrous ammonia about five miles long, two and a half miles wide, spewing into the air. The resulting explosion also blasted a tanker car almost 1,000 feet, took off the wall of a bedroom of a couple at a property close to half a mile away. It operated as a missile, as the anhydrous ammonia spewed out of the tear in that tank. This vapor plume spread throughout the valley around Minot. The fire department chief told me as they were dealing with the crisis, one of the things that occurred to him is they were going to need an awful lot more body bags. There were some fortuitous circumstances. It was 2:00 in the morning and it was 20 below outside. So houses were locked up tight and there wasn't a lot of activity, otherwise there would have been in fact, I believe, a very significant casualty count. After the area was cleared, one individual, John Grabinger, had died from the injuries suffered after fleeing his house and becoming disoriented in this opaque, poisonous cloud of ammonia. Thousands of others have suffered injuries, including individuals who sustained second degree burns to their skin. Many people are still suffering long-term effects because they have scarred their lungs, they have damaged their eyes, permanent physical damage. Asleep one minute, next minute, fearing for their lives in some kind of unknown poisonous cloud that has descended over everybody. The National Transportation Safety Board, July of 2002, released its investigative report into the incident. They found nearly 2000 defects, 2000 defects, along the railway line. However, in March of 2006, a Federal district court dismissed the cases of several victims by ruling that the Federal Rail Safety Act contains a clause stating that States can only adopt or maintain and enforce an additional or more stringent law or regulation or order related to railroad safety under limited circumstances that these individuals cannot have a cause of action because the Federal law had granted a complete immunity to the railroad. A three-judge panel of the Eighth Circuit has upheld this ruling. And five years after this terrible tragedy, these victims have still not received justice. Madam Chair, I greatly appreciate your also listening directly to one whose life has been upended in this accident, just to establish really for the record the completely unacceptable state of an interpretation of this 30 year old law that says suddenly, railroads have total immunity. Madam Chair, I yield back, but I am very pleased to have with me a constituent, Ms. Jeannette Klier. Ms. Brown. Ms. Klier. Ms. Klier. Madam Chairwoman, my name is Jeannette Klier, and I am from Minot, North Dakota, and I am very grateful for the opportunity to speak to you today and represent the citizens of Minot regarding this derailment. The night of January 18th, 2002 was a cold winter night. Little did I know that when I went to bed that night, I would soon be fighting for my life. A train carrying anhydrous ammonia derailed, spilling seven tank cars of this deadly chemical into the neighborhood. The sound of the derailment woke me from sleep, but it never occurred to me that this was a derailment. Thinking I was safe, I went back to sleep. A co-worker's phone awakened me and immediately, the smell of ammonia hit me. Following her instructions, I turned on the television for directions. The advice given was to go to the bathroom, turn on the water, put a towel under the door. I did this until I realized that I had inadvertently plugged the sink and the water had run over. This concerned me. I didn't know if the gas affected a person's ability to think clearly. So I went to the bedroom window and looked out towards the street, which had a street light. And what I saw scared me even more. This cloud was dense, swirling, greenish in color. It did not resemble fog. It was very noxious, and it burned to breathe. It was so thick that I was not able to see across the street. So I listened. And what I heard was unsettling. It was totally quiet. I didn't hear the sound of traffic. There were no sirens. And I knew that if there were going to be a rescue, the ambulances would be roaring past my house. This meant that it was too dangerous for rescue. It occurred to me that everyone might be getting overcome by this terrible gas, and that I too might be overcome and die right here. Then I considered that this might be a flammable gas. I just didn't know. So I knew that I had to make a careful and quick decision to stay and possibly die or to evacuate and possibly die. The odor was very intense in the house. So I decided that if I was going to die, I was going to die trying. I decided to evacuate. As quickly as possible, I threw on some clothes, grabbed a water bottle and a wet towel, took one last look at my kitchen, which was hazy with gas, put the wet towel over my nose and mouth and stepped out into the garage. It was stronger there. Moving as quickly as I could, I backed out of my driveway and proceeded down the street. But the anhydrous was so thick it was as if somebody had put a white sheet over my windshield. I couldn't see anything. I tried to hold the wheel straight, knowing that I could possibly hit a car, but even more, hoping that I wouldn't get hung up on a snow bank, because if I did, I would probably die. This anhydrous was so strong it burned my eyes. It burned to breathe. I was scared, but luckily, I was able to drive out of it. Living in North Dakota in the winter had taught me some blizzard driving skills that I found useful in this situation, as well as having winter survival gear in my car. I evacuated to my parents' home in another town. The anhydrous initially caused nausea, loss of appetite, just a feeling of sickness all over, as well as intense burning in my nose, throat, trachea, lungs, all of which subsided in time. It was my eyes that sustained permanent damage. They are painful all the time and are only relieved temporarily by prescription eye drops and over the counter lubricating drops. Driving any distance in the winter with the defrost on is almost impossible. And when living in a northern climate, the defrost is necessary. But I feel fortunate. Many others, like my good friend, Jody Schultz, sustained permanent damage to her lungs. She uses oxygen and nebulizer treatments day and night. She is younger than I am, and this has greatly affected her ability to work. In January 2006, in Minnesota State Court, after a month- long trial was held for four victims of the derailment, the railroad admitted that it was negligent in causing the derailment, but would not take responsibility for causing the injuries to my eyes, as well as the injuries that the other three plaintiffs sustained. The jury, however, did not agree, and in my case, and in my case, they awarded me $300,000. The railroad is attempting to ignore what the jury had decided. Ultimately, this is not about money. I would much rather have the pain in my eyes go away. But without the ability to take CP to court, many others will be treated like me. Congress should now act to state again that people have the right to take railroads to court for personal injuries. Without this avenue, the railroads will continue to hurt people and just be able to walk away from the pain they have caused. I am concerned that this will happen again. The train passes by a grade school. Luckily, this derailment occurred at night and not when school was in session, or the tragedy would have been worse. This accident was not due to an act of nature, but to negligence in track maintenance. Canadian Pacific Sioux Line Railroad needs to be held responsible for the injuries that they have caused to the people in Minot. Injured people need laws to protect them in seeking just recourse through the court system. Please do all that you can to protect the injured. Mine is one of several hundred stories, some much worse than mine. And even though the railroad has admitted liability for the derailment, they are hiding behind the preemption argument. This may be even the bigger tragedy. This takes away all avenues for people to seek recourse for their suffering and allows CP Railroad to say, too bad, so sad, and go on with their usual business. This injustice must be rectified. The intent of the FRSA could not have been for this type of interpretation to take away victims' rights. We have to get this law clarified before another accident happens somewhere else in this Country. It is not if, it is when. Don't let the railroads use the preemption defense and use the FRSA as a shield for immunity and deprive victims of their rights. Madam Chairwoman, if you or any of the other members have any questions, I will try to answer them. Thank you. Ms. Brown. Thank you for your testimony. I have a question for you, Mr. Pomeroy. Before I get into my question, can you explain to me one more time why the rule that kept the group from going to court---- Mr. Pomeroy. Yes, Madam Chair. There were different court cases filed. The witness with me was a group filing in State court in Minnesota. In addition to that, there was a Federal case filed, and that was held in Bismarck, at Federal District Court. State court actions proceeding pretty much like State court actions have proceeded ever since 1970 under this Act. The surprising development came out of the ruling of Bismarck, where the District Court said, in spite of the fact that we have 35 years of litigation against railroads, we now hold that the Federal Rail Safety Act really does not afford this kind of State court remedy under State law. Nor by the way is there an existing Federal point of relief for the plaintiffs either. So they are just out of luck. So it was basically, it was a determination of complete immunity for railroads under this Act, even though that was a very new and novel interpretation, compared to the bulk of case law since that time. This situation, Madam Chairwoman, we have all had town meetings. We have all had town meetings that have an element of outrage to them, given one circumstance or another that presents itself in this district. I will tell you, I have never seen a meeting like this one which I convened with the victims shortly after the accident. This happened in January of 2002, just a few months after 9/11. They thought that there had been a terrorist attack. We had weeping families in their home as this poison gas started to come in, they could visibly see it, as they said goodbye to one another and wrapped their faces in wet cloths, waiting for the end to come. It came for one man, who was out, got disoriented, hit the garage and couldn't get into the house. But for everyone else, they just carry these scars. There were psychological scars, some have healed, some haven't. But unfortunately, there are a lot of residual scars. Now, any fundamental notion of American justice is that when the National Transportation Safety Board did their exhaustive investigation, finds all this negligent operation of the rail by the railroad company, that there ought to be someone responsible for this damage. I think really that is the question before this Committee. You can clarify what has been the better than three decades standing in application of this law that yes, nobody gets immunity under this law. That is not what it ever meant. Or on the other hand, you can create a Federal claims system and have some kind of taxpayer pot that pays these people and gives the railroad a free pass. Or I guess the third alternative is you could say, well, Minot, tough. Most victims have recourse for negligent acts. If you have been hurt by a railroad--we love railroads, and they are important to us, so they do not have any responsibility for their negligent acts. Now, I do not think that that is a position that is going to wash with anybody. So I do put to you, to me the easiest thing to do is just simply clarify Congress' original intent. I might to our new colleague, Congressman Walz, these tracks, by the way, they come on into Minnesota, the CP Rail. So the same entity operating the system in Minot also operates trackage in Minnesota. Ms. Brown. Let me just ask, and you just answered part of my question, but as the Subcommittee plans for reauthorization of the Federal Rail Safety Program, what areas are most in need of revision or reform? And I just heard you, but do you want to add something else to that? Mr. Pomeroy. No, just to try and put a fine point on it. I don't think, in 1970 or at any point thereafter, there was Congressional intent for granting immunity to railroads under this Act. So as it is reauthorized, clarification, just a restatement of what has always been legislative intent here, in my opinion, would be helpful. Ms. Brown. OK. Mr. Shuster. Mr. Shuster. Thank you. And this was the only case in 30 some years that a ruling came down like this? There are other accidents that have occurred, and lawsuits and damages. Mr. Pomeroy. There have been plenty of actions. I am sorry, I didn't mean to interrupt you. Mr. Shuster. Well, this is the main case? That's the main point of my question, this is the only case in 30 years that there were no damages assessed? Mr. Pomeroy. I can't give you an exhaustive legal opinion, because I don't know. But I am aware, as my colleague is aware, there have been a lot of lawsuits against railroads over the years, crossing accidents seems like present maybe the largest number. But there have been any number of them for negligent operation of the railroads. Now we have a Federal District Court in North Dakota ruling, this never should have happened, because the original 1970 Act really granted them immunity. It is a very novel ruling. It flies in the face of what has been kind of generally understood actions. To show you how generally understood it is, the Railroad Council themselves were settling some of the cases. They were litigating other cases. The railroad did not at any time act as though they had complete immunity until the Federal judge ruled. But there have been two other cases where other members are troubled about this recent trend of ruling. There was a case in Scotts Bluff, Nebraska. And I have talked about this matter with Senator Lindsay Graham, who is also very disturbed about plaintiffs in South Carolina being denied. So I am not going to say this is the only time it ever happened. I don't have a comprehensive knowledge of it, but I believe that this trend of ruling is very recent, and I am only aware of those three instances, South Carolina, Nebraska and North Dakota. Mr. Shuster. And that was a Federal court where this ruling came down? Mr. Pomeroy. Correct. Mr. Shuster. Thank you very much. Mr. Pomeroy. Thank you. Ms. Brown. Thank you very much for coming. I thank you, Ms. Klier. We will be working through these issues as we move forward with the reauthorization. Thank you. Mr. Pomeroy. Thank you very much. Ms. Brown. We will now proceed with Panel 2. Before we proceed, is the tape ready? Mr. Hamberger. I believe it is, yes, ma'am. Ms. Brown. We do not have any popcorn or sodas, but we are going to watch a two-minute film, and then we will start the testimony. Mr. Hamberger. Actually, we have it worked into the script. Ms. Brown. Well, first of all, let me welcome you all here. And we have Mr. Hamberger, who serves as President of the Association of American Railroads. Next is General Timmons, who is the President of the American Short Line and Regional Railroad Association. We have Mr. Wytkind, who is President of the Transportation Trades Department of the AFL-CIO. And we have Mr. Rodzwicz, who is the Rail Conference Director for the International Brotherhood of Teamsters. He is here representing the Brotherhood of Local Engineers and Trainmen, and the Brotherhood of Maintenance of Way Workers. And finally, Ms. Sharon Van Dyck, who is an attorney from Minnesota, representing the American Association for Justice. We are pleased to have all of you here with us this morning. Your full statement will be placed into the record. We ask that all witnesses try to limit their testimony to a five minute oral summary of their written statement as a courtesy to all of the witnesses. We will proceed in the order in which the witnesses are listed in the call of the hearing. Mr. Hamberger. TESTIMONY OF EDWARD R. HAMBERGER, PRESIDENT AND CHIEF EXECUTIVE OFFICER, ASSOCIATION OF AMERICAN RAILROADS; RICHARD F. TIMMONS, PRESIDENT, AMERICAN SHORT LINE AND REGIONAL RAILROAD ASSOCIATION; EDWARD WYTKIND, PRESIDENT, TRANSPORTATION TRADES DEPARTMENT, AFL-CIO; EDWARD W. RODZWICZ, PRESIDENT, TEAMSTERS RAIL CONFERENCE; SHARON L. VAN DYCK, AMERICAN ASSOCIATION FOR JUSTICE Mr. Hamberger. Madam Chairwoman, thank you very much. Let me add my words of congratulations to those you received yesterday on your ascendancy to the Chairmanship of this Subcommittee. We appreciated the opportunity to work with you in your position as Ranking Minority Member and look forward to working with you as Chairwoman. At the same time, to Mr. Shuster, congratulations on your election and appointment as Ranking Member on this important Subcommittee. And welcome especially to Mr. Lipinski, with whom we have worked on Chicago issues, and Mr. Walz, to this Subcommittee. On behalf of the members of the Association of American Railroads, let me before I start make some comments about the testimony we just heard. I would like on behalf of the industry to offer my regrets and the entire industry's regrets to Ms. Klier for the suffering she went through. I think that in addition to the issue which she and Mr. Pomeroy raised, it raises a number of issues with which this Committee and Subcommittee have wrestled over the past couple of years regarding the transportation of hazardous materials, particularly toxic by inhalation hazardous materials, the common carrier obligation that the railroads have, and the liability that they have. So I think it is something that we need to take a close look at in the context of all of those issues. But again, our regrets and best wishes to her, and I thank her for coming here today, because I know it is a long way to come from North Dakota to bring her issues to the attention of the Subcommittee. I am going to run over, I can tell right now. May I ask permission to begin now? Ms. Brown. As much time as you may consume. Mr. Hamberger. Thank you very much, Madam Chairwoman. On behalf of the members of the AAR, thank you for this opportunity to address railroad safety. Nothing is more important to the industry than safety. It is the focus of many of our investments, it is the focus of many of our research and development programs. It is the focus of our employee training, and it is the focus of our operations. We are very proud of our safety record. Our industry has become much safer over the years. Between 1980 and 2005, railroads reduced their overall train accident rate by 64 percent, and their rate of employee casualties by 79 percent. Not coincidentally, this record of safety improvements began with the passage of the Staggers Rail Act of 1980, which partially deregulated the industry. Deregulation provided railroads with additional resources that were invested in maintaining and improving track, equipment and signal systems. In fact, through last year, the industry has invested over $370 billion in the last 27 years to improve its operations. I am pleased to say that that safety record continues to improve. Preliminary data for the first 10 months of last year indicate that 2006 could well be the safest year ever for the railroads by the three most commonly cited rail safety measures: the train accident rate, the employee casualty rate, and the grade crossing collision rate. But let's put that in context, because Mr. Gonzalez yesterday asked a very pertinent question: you're safer, but compared to what? And as you can see from this chart, from my written testimony, railroads are not only safer than in the past, but they are safer when compared to injury rates of all other modes of transportation and in fact, most other industrial groups, including agriculture, construction, manufacturing and private industry as a whole. Available data also indicate that U.S. railroads have employee injury rates well below those of most foreign railroads. In addition to the dedication and professionalism of the industry's employees--and I want to emphasize that--the dedication and professionalism of the industry's employees--- credit for the industry's safety record must also go to the use of new and safer technologies. We have many of these deployed under a program we refer to as advanced technology safety initiatives. The Subcommittee saw many of those during its two hearings last year in Pueblo, Colorado. Some of them include wheel profile monitors that use lasers and optics to capture images of wheels, trackside acoustic detectors and a rail defect detector car to detect internal rail flaws, using laser technology. Taken together, these technologies produced a 13 percent reduction in the rate of broken wheel and broken rail accidents in its first 25 months. I know this is a matter of great concern for Congresswoman Napolitano. I want to assure her that we are working very hard in this area. As discussed yesterday, the greatest challenge to improving safety lies in the area of grade crossing accidents and trespassers. I want to thank this Committee for its leadership in expanding funding for the Section 130 grade crossing program in the SAFETEA-LU bill. As you know, that program funds separation and signalization of grade crossings around the Country. As you can see from the 2006 data, this is already having a positive effect. You asked yesterday, Mr. Shuster, what causes these grade crossing accidents. The most recent study, a 2004 FRA report to Congress, confirms that over the previous 10 year period, 94 percent of public grade crossing accidents were caused by ``risky driver behavior or poor judgment.'' We have an example of two such accidents on the monitor. I would like to point out that you will hear some comments from the crew. These are old tapes from Norfolk Southern. Norfolk Southern has since relocated the microphone outside the cab to address crew concerns. But the first one you will see, we are actually going to show it twice, first in real time, if you keep an eye on the left hand side of the track, you will hear the whistle blow by the way. It's going 31 miles an hour. [Video.] Mr. Hamberger. You hear the whistle. Watch the second car on the left. The gates are down. [Video.] Mr. Hamberger. We will see it again in slow motion, as he went around the car in front of him. [Video.] Mr. Hamberger. The second one is at a passive grade crossing where the driver, fortunately this was not a fatal accident, came, stopped too late, did not look and drifted into the right of way. If we showed you that again, you would see that there was no stop sign there. Fortunately, the Federal Highway Administration is changing its recommendations to the States to put yield or stop signs at all passive grade crossings. Madam Chairwoman, I spoke to one of your constituents yesterday from the Jacksonville school district, and she indicated a great deal of interest in having Operation Lifesaver volunteers come to her school district to explain the importance of stop, look and listen. We will make sure that that happens, working through your office. Finally, I want to address what may have been a mis- impression left with this Committee by Mr. Scovel, the Department of Transportation Inspector General, when he spoke about reporting accidents at grade crossings. What he did not tell you was that in a November 28th, 2005 audit of the FRA by his office, his staff wrote, ``The 115 unreported crossing collisions that were not reported to the National Resource Center were reported to the FRA within 30 days as required by law.'' So I want to emphasize that the railroads did in fact make the report. They made it to the FRA and not to the National Resource Center. His office went on to find: ``FRA officials also stated that railroad employees were confused about which collisions to report to the NRC as opposed to which ones to the FRA. Their confusion contributed to missed reports. We found the reporting requirements to be complex and potentially confusing as well.'' Consequently, his office went on to make a recommendation to the FRA, ``In our opinion, to avoid confusion over the reporting requirements for railroads, FRA must clarify its requirements for reporting collisions to the NRC.'' And as you heard yesterday from Administrator Boardman, they have since done that, and in fact, Mr. Scovel testified that a similar audit in the first 10 months of 2006 found that only 12 accidents out of almost 3,000 investigated resulted in a missed report of that accident. That is way below the 21 percent which he talked about yesterday. So I would say from the standpoint of trend analysis, 12 out of 3,000, that number is statistically insignificant, and that in fact, I believe that issue has been satisfactorily resolved. Thank you for the opportunity to testify on rail safety. The industry is committed to working with you, the FRA, our employees, and our customers to ensure that railroad safety continues to improve. I appreciate your indulgence, Madam Chairwoman, in letting me run over time. Ms. Brown. Mr. Timmons? Mr. Timmons. Good afternoon, Madam Chair. Let me offer my congratulations also to you and Mr. Shuster. It is a pleasure to see you both in those positions and I look forward to working with you in the future. I appreciate the opportunity to appear this afternoon on behalf of the American Short Line and Regional Railroad Association. Nationwide, there are over 500 short lines, operating nearly 50,000 miles of railroad, employing over 23,000 individuals. Twenty-five of the 30 members of this Subcommittee have one or more short line railroads operating in their district. As has been said many times this afternoon, there is nothing more important to the success of railroading than safety. To short lines, it is not only good business, but it is a personal matter. Short lines are small companies, where every individual is well known to the other. Mr. Hamberger cited the considerable improvement in the railroad industry safety data. I am pleased to say the short line industry has contributed to that improvement. According to FRA data, in the five year period from 2001 to 2005, the short line industry's total number of injuries has declined by 26 percent. If you bump that through October of 2006, the number increases to 40 percent. So in the brief time I have, let me make three points. First, this is a hearing concerning the reauthorization of the Federal Rail Safety Program. I should start by saying that the short line railroads are generally very satisfied with the operation of this program. We believe the law itself and the administration of that law by the Federal Railroad Administration has made a significant contribution to the safety of the industry. Having said that, we do disagree with the FRA's newly proposed provisions to revise the schedule of civil penalties, which will approximately double fines for safety violations. We have submitted comments on this subject to the FRA, and I will not repeat those here, other than to say that we believe the agency should adopt a sliding scale of penalties. Track violation penalties, as an example, could be based on track classification. Other categories of violations could similarly have an adjustable scale for us. Our railroads operate at much lower speeds and much lower densities, and thus have a much lower accident severity risk than the Class I railroads. To double fines under the current system is unreasonable and would impose a significant hardship on small railroads that is unjustified, considering our operations and safety record. Additionally, a fine-doubling policy clearly deviates from the FRA's policy statement concerning small entities in CFR 49 Part 209, where the FRA recognizes the special needs of Class II and Class III railroads. Secondly, we believe that the most important thing a short line railroad can do to improve safety is to improve its track. As you know, the short line industry inherited the worst of the Nation's track infrastructure when we began taking over these properties in the 1980's. Today's short lines plow almost a third of their annual revenues back into infrastructure improvements. That is more than any other industry in the Country. Beginning 2005, we have been able to increase that investment, thanks to the rehabilitation tax credit that so many of you were helpful in securing. As our track improves, our safety record will improve. We think the statistics I mentioned earlier bear that out. Our three year tax credit expires at the end of 2007. And we are seeking a three year extension. Twenty-five of the 30 members of this Subcommittee were co-sponsors of our original tax credit legislation and we hope you will do so again. Of the remaining six, five are new members, and did not have an opportunity to co-sponsor. We hope they will consider doing so at this time. Third, I would like to briefly address the issue of hazardous material. Almost to a company, we would prefer to give up this traffic. We cannot adequately ensure the risk, and for most short lines, a single accident means going out of business. In the majority of cases, the short line does not even set the rate, so there is virtually no relationship between what we earn and the risk we assume. Compounding the rate inadequacy problem is the fact that for short lines, the cost to insure one car is just as much as it would be for 100. I fully understand how difficult this issue is for the Congress. There is strong special interest opposition to a meaningful cap on any liability. Neither the producers nor the end users are willing to pay the real price associated with this transportation and would vigorously and probably successfully oppose any such proposal in the Congress. But the fact remains that some day there will be an accident on a short line railroad. Ultimately, that railroad will be put out of business. When that happens, many more short line railroad owners will decide that the risk is too great and will throw in the towel, to the detriment of the communities and the shippers they serve throughout the Country. We believe that a realistic solution to this problem will involve some combination of a limit on liability, a greater assumption by the cost by the producers and end users, and perhaps some kind of Government insurance program that assumes the risk above a certain level. Possibly the Price-Anderson mechanism may be the most reasonable solution. For that to work for short lines, there needs to be some kind of bridge between our company insurance and what will undoubtedly be a much higher liability limit under the new mechanism. So I strongly urge this Committee to vigorously pursue a solution before, not after, a crisis occurs. The short line industry certainly stands ready to make whatever modest contribution we can to crafting a solid solution. So I appreciate the opportunity this afternoon to appear here, and would be pleased to answer any questions that you might have at the appropriate moment. Thank you, Madam Chair. Ms. Brown. Thank you, Mr. Timmons. Mr. Wytkind. Mr. Wytkind. Madam Chair, thank you for inviting Transportation Labor to appear before you today. And to all the members of the Subcommittee, I appreciate the invitation to appear before all of you. I too congratulate you, Madam Chair, for your rise to the chairmanship of this Subcommittee. We have a lot of confidence that rail workers' voices will be considered as you deliberate over rail safety and the number of other initiatives before this Subcommittee. It is no secret that reauthorization of rail safety legislation is so long overdue. It is frankly outrageous that because of the opposition of the railroad industry, every attempt to pass authorization has been blocked for over a decade. Fortunately, it appears this Committee is now poised to act on much-needed changes to our Federal rail safety laws. The reason behind the delay has been real simple: stonewalling and political gamesmanship up on Capitol Hill by the railroad industry and its lobbyists. It is plain wrong to have the railroad safety laws of this Country held captive to special interest lobbyists of the railroad industry. I think it is time now to take a serious look at what has happened in the last 10 to 12 years that needs to be changed through very vigorous enforcement and oversight by our Government and by Congress. I reject the proposition that the railroads have been advancing now for over a decade, which is that which they agree to should be implemented by the FRA through their joint rulemaking procedures with the railroad unions and everything else should be scrapped. That is essentially the position they have been taking since the Federal Railroad Administration and the DOT tried to enact a number of rail safety initiatives in the 1990's, which were also blocked by the rail industry. We have offered a number of proposals, but I will only summarize a handful of them, for purposes of today. We believe first and foremost that railroads must be held accountable for their conduct and must face not only aggressive enforcement action but also robust fines when they skirt their responsibility to run safe railroads and protect their workers. We must combine those enforcement tools with strong whistleblower protections for employees. Safety and security training must be mandated, because the industry is not performing those functions. Chronic fatigue must be addressed in any legislation. And we believe that the use of technology, including off the shelf signaling technology, can finally rid the rail network of many of its hazards, including so-called dark territory, which is unfortunately prevalent in the industry and is threatening public and employee safety around the Country. First, regarding enforcement measures. It is a fact that for every violation the railroads are levied with, they pay on average $30. That is hardly a penalty that matches the crime, so to speak. We believe that the penalties must reflect the seriousness and the volume of the safety violations. Second, as a companion to these enforcement tools, harassment and intimidation in the railroad industry must be put to a stop. I have been talking about this for over a decade before this Committee and before the Senate Commerce Committee. The employees in the railroad industry are harassed and intimidated into not speaking up about safety problems. It is a culture that has been around for decades. It is something that the railroad industry and its representatives like to basically gloss over and ignore and make you believe they do not exist. But they do. And we believe it is a serious issues in trying to deal with safety and security threats in the industry. No worker should have to choose between his or her job security and the safety of the system. Third, training is not being done at the level it should be. It must be mandated in the legislation. And staffing shortages should at least be looked at by the Committee to make sure that the staffing needs of the industry are being met to meet the safety priorities of the Country. For years, we have listened to rail industry claims about all the training that takes place. It is not happening. I am told instead that these workers are overworked, understaffed and ill-equipped to manage the capacity crunch that plagues the system. I hear about new hires not keeping pace with an aging work force. I hear about a condensed, one size fits all training program, because there is not time to train the new hires. I hear about new employees resigning in droves because of the lack of quality of the job and the training, and because of their lack of preparedness for the job, because of the railroad's inattention to those issues. In short, the FRA must be compelled to require strong training programs. Separately, on the security side, the same problem exists. Since 9/11, I have been talking personally about this and all of our unions have. Our members are not being trained to deal with security threats. No matter how many glossy overheads, no matter how many nice brochures get put out, no matter how glossy the curriculum looks, they are not getting trained. And until they are trained, we have a railroad industry that is exposed to security risks and threats, and it has a workforce that is not ready to deal with those threats in a head-on fashion. Showing low budget security videos for 20 minutes hardly constitutes real security training. Finally, on fatigue, I know you are going to hold a hearing and maybe a series of hearings on it, but I must address a couple of points. In the McDonough, Texas collision, where a hazmat release ensued and three deaths occurred, the worker on duty was very clear about the fact that he couldn't come on duty, because he was tired. He tried to take a day off for rest. Instead, he got two hours sleep right before that accident occurred. This is the kind of story that is going on all over the railroad industry. Other workers are being pushed to the brink. It is not unusual for the railroads to game the Hours of Service Act and for workers like signalmen to work as much as 18 or 20 hours in a 24 hour period. Something has to change, and I think this legislation has a chance to deal with fatigue problems in the industry. I will conclude, Madam Chair, I have many other things I could talk about and I will. But I will end with a quick story in Illinois. I apologize for going over as well. But in Illinois recently, rail employees and their unions attempted to pass a reasonable safety piece of legislation that dealt with the lack of prompt medical attention for rail workers. The bill enjoyed strong bipartisan support at the State level and the State legislature. The Illinois house passed it. The senate then took up a compromise bill that the railroads negotiated with the unions and the politicians and the State. The State senate passed the bill with the expectation that the State of Illinois would not get objections from the railroad industry. Well, before that train left the station, the railroads reneged on the deal. They filed suit in Federal court and they overturned the very legislation that they agreed to and in fact helped to write. I make this point only because this is exactly the kind of stonewalling we have been dealing with at the Federal level for over a decade. No matter what the initiative is, if it tells the railroads what to do, when to do it and how to do it, they say no. They say no all the time. They don't just say no, they say, hell, no. And until the Committee and the U.S. Congress decides it is time to pass rail safety legislation over the objections of the rail industry, it is going to be very difficult to achieve it. But I have a lot of faith in you, Madam Chair, and in the full Committee Chairman, Mr. Oberstar, who has just joined us, and in all the members of this Committee, that we are going to finally get a chance to deal with the rail safety crisis that we think we have in this Country. Thank you, and I appreciate the time you have afforded me. Ms. Brown. Thank you. Mr. Rodzwicz. Mr. Rodzwicz. Good afternoon, Madam Chairwoman, Mr. Ranking Member and Subcommittee members. As president of the Teamster Rail Conference, and on behalf of more than 70,000 men and women we represent, made up of the Brotherhood of Locomotive Engineers and Trainmen, and the Brotherhood of Maintenance of Way Employees, thank you for holding today's hearing and providing us with the opportunity to give you our views on reauthorization of the Federal Rail Safety Program. Safety is a vital concern to our members who place their lives on the line every day in order to transport the people and the goods that keep our economy running. In the last six months, seven railroad workers have been killed in the line of duty. That result is unacceptable to the Rail Conference. I challenge the FRA and the industry to move forward immediately and decisively to correct the causes of those tragic deaths. BLET and BMWED both are proud members of FRA's Railroad Safety Advisory Committee, and have served since RSAC's inception in 1996. We believe that with some significant exceptions, we have made progress improving rail industry safety, because of consensus based rulemaking under the RSAC process. And, although we don't always agree with them in the end, we appreciate the respect and consideration we receive from AAR and the Short Line RSAC partners. We are also proud of our relationship with the FRA. We believe that the FRA's performance strongly warrants a multi- year reauthorization of the Federal Rail Safety program, so that we can proceed in an orderly fashion in the years ahead. Reducing accidents and injuries related to human factors cannot happen if we focus solely on the person who is closest in place and time to an accident. Rather, comprehensive accident prevention and safety enhancement must also include continuing study of and adjustment to the work environment as a whole. For this reason, we believe the Federal Rail Safety Program needs to address a number of issues to complete the circle to ensure employee safety. I will briefly identify some of them in no particular order of significance. Fatigue continues to be a major concern for us. Operating crews in freight service for the most part work on an unscheduled operation. At minimum, we need to address fatigue for operating crews by one, counting limbo time as hours of service; two, requiring a ten hour calling time, so people can have adequate opportunity to rest before reporting for work; and three, implementing basic, concrete fatigue counter- measures. At a minimum, operating employees should be permitted to request rest when an individual believes it is needed for a safe operation. Causes of maintenance of way worker fatigue also require additional study and counter-measures must be adopted. Maintenance of way workers are often required to travel hundreds of miles to report to work sites on their days off. These same workers are also the only rail workers who are expected to obtain adequate rest in multi-person occupancy lodging. On Norfolk Southern, for example, many employees in such service are forced to sleep eight people to bunk cars, not provided with potable water and forced to use outside toilets. These conditions on NS are intolerable, and the entire treatment of maintenance of way workers needs substantial improvement. We know that track caused derailments account for approximately one-third of all rail accidents. Railroads are not hiring and retaining a sufficient number of employees to adequately maintain the Nation's rail infrastructure. Staffing levels have been reduced by nearly two-thirds over the past 25 years. While some of this decreased can be attributed to improved technology and greater work productivity, the fact remains the existing track force levels are insufficient for the task at hand. Madam Chairwoman, may I have additional time to complete my testimony? Ms. Brown. Yes, sir. Mr. Rodzwicz. Thank you. The lack of manpower causes the Nation's rail infrastructure to maintained in a reactive, rather than a proactive mode, putting other rail employees and the communities near rail lines at greater risk for injuries caused by track related derailments. Also on the subject of staffing and safety, I want to repeat something to you that you have heard from the Rail Conference and from our divisions in the past: we fully support development and deployment of positive train control. PTC is a safety overlay on the top of existing signal and train control systems and can provide each and every Rail Conference member with an important added margin of personal safety. However, we oppose implementation of PTC simply as a means of reducing crew size, because trading a set of known risks for a set of unknown risks will jeopardize public safety and the safety of our members. Increased individual worker liability and the testing and implementation of a number of next generation technologies also means the training standards need to be improved. Second class training won't cut it if first class performance is expected and demanded of railroad workers. We also want to state that we fully support Mr. Wytkind's statements concerning certification of car men, conductors, mechanics and signalmen, as well as with respect to staffing, training and certification for hazardous material movements. FRA is currently conducting a number of studies which we support. We believe several other studies are also warranted. Briefly, these include the safety impact of contract drivers, of railroad crews to and from duty assignments, and evaluation of conflicting and confusing railroad operating rules, follow- up studies of switching operations, fatalities analysis, and a collision analysis working group. And a study of locomotive cab environment and its impact on human performance. We also believe FRA should reopen its investigation and study regarding the discharge of human waste along tracks where maintenance of way workers perform their tasks, which I address in detail in my written testimony. I simply cannot believe that in the 21st century, railroads use onboard toilets that dump human waste on tracks where our members work. We also believe reauthorization should address ongoing problems concerning main track switches and dark territory, routes on which no signal system is in place. My written testimony provides more details. In short, we believe that the NTSB recommendations from its report on the Graniteville tragedy should become mandatory requirements. Once again, I thank the Subcommittee for hearing us today. I am certainly happy to answer any questions you may have. As an echo to the other members testifying today, congratulations to you, Madam Chairwoman and to the Ranking Member. Thank you. Ms. Brown. Thank you. We will hear the last testimony and then we will get into questioning. Ms. Van Dyck. Thank you for inviting me to speak today. I am speaking on behalf of the American Association for Justice, formerly ATLA, one of the largest practicing trial bars in the world. My name is Sharon Van Dyck, and I practice law in Minneapolis, Minnesota. The purpose of my being here today is to make you aware, as the Railroad Subcommittee, of the scope of the problem that was referenced by Mr. Pomeroy and his client. That has to do with the way preemption is being interpreted by the courts in today's environment. Because this Subcommittee and ultimately the Committee and ultimately Congress, has the ability to fix it, to fix it and make it clear that the courts have it wrong, and that they have it wrong because in 1970, when the Safety Act was passed, it was never intended to be done the way it is being done now. The FRSA is a safety act, and the whole purpose of it is to improve railroad safety for everybody, for railroad workers, for the public, and in particular the public is what is at issue here. The FRA has been empowered to draft safety regulations and has done it, has done a lot of it. The problem is that recent courts are dismissing State law based claims, leaving victims with no remedy based on how the preemption clause and the Act is being interpreted. And I believe that that goes to one of the questions, Madam Chairman, that you asked, what is happening, what is causing this. The Act has a preemption clause because everybody wants the uniform safety provisions that have been promulgated, which are minimum standards that everyone should be following. They want that to be the minimum standard. They don't want people going below that standard. And for years, probably 25 years, courts pretty much interpreted the FRSA preemption clause that way. What has been happening approximately since about 1993 and increasingly worse, through the Minot case, and I think the reason Minot is such a terrible example--it is an excellent example, but a terrible event--is because it is the ultimate example of what happens when the law is interpreted the way it is being interpreted now, is that it leaves all these people with absolutely no remedy. The FRSA does not provide a remedy. What is being said is that if there is a regulation or it is an area that is regulated by the safety standards in the railroad industry, that the intent of Congress was in the past and still is to say the mere existence of a regulation for safety is enough, and that any citizen who is injured in a derailment, in a crossing case, in any kind of accident, where those standards have not been even upheld at all cannot be challenged. The mere existence of the safety regulation eliminates all State rights in terms of going to court and getting a remedy. And that is what happened in the Mehl case in North Dakota. The judge said, my hands are tied. The judge said, Congress, you have to fix this. And as much as I personally and many of us do not believe that that is what the law is or what the preamble actually says or was ever intended to say, that is what courts are interpreting it to do. So we have a Federal statute that provides no remedy. The mere existence of safety standards that courts are saying mean that if there is a standard, you have no remedy. And the latest is that it is being used with complete preemption to pull court cases out of State court into Federal court and then dismiss them. This was never what the Federal Safety Act was intended to do. It was not used that way for 20 to 25 years. The fix is simple. The fix is to add a sentence to the preemption clause that clarifies that the State law remedies are in place. That is my purpose in being here today and I thank you for your time. I am perfectly willing to answer questions. Ms. Brown. Thank you. At this time, I am pleased that our distinguished Chair of the full Committee has joined us, Mr. Oberstar. Mr. Oberstar, as I said yesterday for those who were not in the room, you started out as a staffer with this Committee 44 years ago. And now his picture will be on the wall as Chair. I am very happy to be one of his chairs, and I can tell you, no one in the entire Country knows more about transportation in every aspect, probably in the world, than our Chairman, Mr. Oberstar. Mr. Oberstar. My goodness, thank you, Madam Chair, for those kind words. I will have to work overtime to live up to them. Congratulations on your second Subcommittee hearing on the subject of rail issues. Again, I welcome Mr. Shuster to the Subcommittee and a new assignment for him, the Chair of the Economic Development Subcommittee in the previous Congress, and the former Chair of the Subcommittee, Mr. LaTourette, who devoted a great deal of time and energy to rail issues and whose leadership was much appreciated on both sides of the aisle. Madam Chair, you have worked diligently to master the issues of railroading and we are proceeding with a very vigorous schedule in all of the subcommittees of the Committee on Transportation and Infrastructure. This is our fourth hearing, and we have already had a markup of several water related bills. We will have more to come in the next few weeks. We have an agenda to report out and bring to the House floor before the President's day recess, at least half a dozen major issues, most of which are bipartisan items that carried over from the last Congress, and others are new issues. This proceeding on rail safety stems from nearly a dozen years ago when our Committee, in the reorganization that the Republican leadership of Congress undertook to redistribute committee responsibilities, and one of the best moves they made was to consolidate all transportation in the Committee on Transportation and Infrastructure, including rail, Coast Guard and others. When I took a look at rail safety and compared it to safety in the aviation sector, given adjustments for differences in modes, I was, to put it mildly, appalled and set about inquiring into conduct of safety in the railroad sector. The result of which was a comprehensive bill that I introduced, along with a number of co-sponsors in roughly 1995, 1996, I think it was. There is a great deal, some progress has been made by the Federal Railroad Administration. FRA has implemented some of the recommendations by the National Transportation Safety Board. But FRA still has only 421 inspectors, States have 160. But only 2 percent of railroad operations are inspected every year. Only 13 percent of the most serious rail grade crossing collisions were inspected from 2000 through 2004. In comparison to FAA, 93 percent of the general aviation accidents were investigated by the FAA. The Federal Railroad Administration has a long way to go to pick up the ball and be vigilant on rail safety. The RSAC that was established under Jolene Molitoris during her tenure at the Federal Railroad Administration was a splendid effort to bring management and labor together to work out issues. In the end, voluntary agreements are no substitute for vigorous enforcement of oversight responsibility. And as we have seen in the testimony today, as we have heard over many years, there are serious gaps and shortcomings, failure in rail safety that have to be addressed. Either this Federal Railroad Administration takes appropriate action through regulatory authority that it has or we will move legislation that makes those changes in law. Thank you, Madam Chair. Ms. Brown. Can we go back to the first film with the railroad crossing? Is it possible? Mr. Hamberger. Mr. Miller, the Chairwoman would like to see the film of the grade crossing accident. Ms. Brown. While he is doing that, what are the railroads doing to prevent fatigue? We have had a lot of discussion about it. Mr. Hamberger. Madam Chairwoman, we will be talking in great detail about that in two weeks. We are working very diligently to hopefully have some very specific recommendations, consistent with what the Chairman just said, for things that this Committee can do in the area of fatigue. Having said that, we anticipate working with labor, because what needs to be understood is that many of the issues surrounding fatigue are also part of the negotiated process between management and labor. But several of the railroads have instituted, for example, increased rest times between calls. We have instituted models to try to take a look at how long people should be off, how to guarantee certain days off, improving crew scheduling practices on a work district by work district basis, and working with the crew to make sure that they understand that when there is time off, there is a responsibility at the same time to try to get some rest during that time off. Ms. Brown. Did they find the tape? Because I wanted to ask a question about the rail crossing. They took it, OK. Well, we are going to stand in recess. We have three votes, one 15 minute vote and then I guess two other 5 minute votes. Then we will come back, I guess we should be back in about 30 to 45 minutes. Members will have an opportunity to ask as many questions, we can have a couple of rounds. Mr. Hamberger. We will have that disk by the time you get back. Ms. Brown. Yes. So feel free to please, members, come back, because we want to have this question and answer period. Thank you. [Recess.] Ms. Brown. The Committee will come back to order. I am glad we were able to vote and get back early. On the film, Mr. Hamberger, I was trying to figure out whether or not it was railroad crossing. Mr. Hamberger. On the first one, there was a crossing gate. I think you can just, as we run the tape and you get a little bit closer, you can see there is a shadow there on the right side. You can't really see it on the left, but of course, if they have it on the one side of the track, it's going to be on the other. [Video shown.] Mr. Hamberger. Did you see it there on the right? If we can just back it up a touch, Mr. Miller. [Video replayed.] Mr. Hamberger. The second one did not have active warning lights. Ms. Brown. I think you said the second one also did not have a stop sign. Mr. Hamberger. That is correct. That requirement will soon be part of the MUTCD, which stands for the Manual of Uniform Traffic Control Devices. We did support the NTSB recommendation that there be a stop sign at the grade crossings where there are no gates and lights. Actually, they have left it up to the States to have either a stop sign or a yield sign. It looks like we are going to make another run at it here. If you look on the right side, right about there, you can see the gate is down on the right hand side. Ms. Brown. I see. And he just went around the gate. Mr. Hamberger. And there was a corresponding gate up on the left hand side. And if we could back it up, you will see there is a car in front of him, and he went around the car in front of him and around the gate. You see him going around. Ms. Brown. I guess that is what I was asking you, is the technology there that you can, we can make sure that you can't go around? Mr. Hamberger. The technology is there. Obviously it is a matter of resources, and that is why it is so important that this Committee fully funded the Section 130 program for the States to have more money to put into this area, and did not take the advice of the Administration, which is wanting to make that a block grant for safety. So the leadership of the Congress is very important there. As you know, the industry maintains all of those lights and gates around the Country. It is our responsibility and it is about $200 million to $250 million a year we spend on doing that. But it is a cooperative effort. The one in North Carolina, with Norfolk Southern and the State of North Carolina, to have a corridor that is basically sealed, so that the number of accidents there should drop dramatically there as it gets put in. Ms. Brown. OK. I have lots of other questions, but I am going to go to Mr. Shuster. Mr. Shuster. Thank you very much. I think that all of us can agree on the importance of safety and security. These are serious issues and quite frankly, complicated. As the new Ranking Member on this Committee, I am trying to get my arms around them. So I have been meeting with a number of people throughout the industry and if we haven't, if my staff has not called you, I would encourage you to call our office. Because I really want to sit down and again, try to understand all sides of the issues. I know that there are different views, and that I need to hear them and understand them to be able to make decisions and to be able to have vigorous oversight on this Subcommittee. The statistics that I have seen, whether they have been industry, whether they have been Government or independent studies, demonstrate to me that rail safety has gotten better over the last couple of years. And as I think Mr. Hamberger said, this may be the safest year in rail history. So Mr. Wytkind, when I hear your testimony, you made some claims, which again I am certain you feel strongly about. But for me, I need to see the facts. You and I talked earlier during the break. I hope you will come by the office and we can sit down and discuss this more at length. I am sure we are going to be cut short here today. But I wonder if you might comment on that. Because again, for me, all the charts that I have seen show important strides in a positive way, not perfect. We want to move towards becoming even more safe. Mr. Wytkind. I would be happy to come in and talk to you, and I would probably bring with me some of the rail safety experts that work within some of the railroad unions, who have been living and breathing these issues for their whole careers. But I won't get into the statistics, because statistics are however you present them. I think the Association of American Railroads is good at presenting the statistics in a way that reflect well on its safety operations. Mr. Shuster. But I would be curious to see your statistics. Mr. Wytkind. Well, I don't keep statistics. I just analyze what is happening through a worker's perspective. I would say to you the following: I have been representing transportation workers on Capitol Hill for about 16 years. I have been before this Committee and many others, talking about rail safety and security on several occasions. When I start talking about the lack of enforcement and the lack of robust fines to, as I said, make sure that the punishment meets the crime, I think that is borne out by stats. When you have as many safety violations as you have around the Country on an annual basis and the average fine is $30, that is the charge of dinner for two at a diner for the average violation, which is hardly a deterrent to unsafe operations. When I talk about the whistleblower issue, the reason I brought this issue again to the Committee is because there has been a culture of harassment and intimidation in the railroad industry way before, obviously, you began your service in the U.S. Congress. It has been documented on several occasions, including by investigations into the issue by the Federal Railroad Administration, where it did cite that issue as a big concern as they looked into the labor management issues. All we are saying is, if you are going to pass the financial services legislation that you all passed in the previous Congress to deal with a lot of the problems with financial services, whistleblower protections were put in that bill. We would argue that for the same reason that they were put in that bill, you should put strong whistleblower protections to stop harassment and intimidation in any rail safety bill. So I think there are a number of issues that need to be dealt with. They are really not just about statistics or the way in which statistics are presented. They are about a culture in an industry that we believe is unsafe and that workers and the public are suffering because of that. Mr. Shuster. But again, in a way, I think you can make informed decisions looking at the numbers. You say there are a number of, that is, you know, what is a number? The number to you may be 100 and that may be a lot. But if there are thousands or millions, then that is a very small number. Again, I would like you to come by and let's sit down and let's talk about this. But for me, I have to see the measurements. If you do not have the measurements, I think you make decisions, just like on Sarbanes-Oxley, we passed it and probably one of the worst votes I have ever made in hindsight, because it has caused so much damage to many of our small businesses that can't comply with the costs. They are so huge. Mr. Wytkind. The point I am making is you put whistleblower, and that is not the problem you are referring to. There are a lot of other problems. I don't think whistleblower protection has been a subject of criticism in that piece of legislation. Mr. Shuster. And I do not want to debate on whistleblower, but I understand there is a whistleblower protection in the law now. Mr. Wytkind. It is inadequate. Mr. Shuster. OK. You and I can sit down and we can talk about that. Mr. Wytkind. I am happy to. Mr. Shuster. OK. Thank you. In the regulatory climate that seems to be changing out here in the rail industry, you have cities wanting to reroute or even stop hazmat materials from going through and re- regulate shipping rates, TSAs, looking at new regulations, and just the cost and the complexity that we are talking about, changing on shipping these hazardous materials. My concern is what kind of impact is that going to have on the rail industry, and are we going to stop or at least decrease significantly private capital coming into the rail industry which is, I think, extremely important that we have an understanding of what is going to happen to that private capital coming into the industry. Mr. Hamberger, Mr. Timmons, anybody else that wants to comment on it, I certainly would appreciate it. Mr. Timmons. The hazmat issue is a serious predicament for the small railroad industry. In the month of January, we had 126 of our railroads move hazardous materials. If you look at the predicament that they face in that context, and the potential implications for communities if we start to curtail the movement of chlorine, for example, it becomes a very, very difficult problem for communities. On the reverse of that, the railroads are required to carry this material as common carriers. In the small railroad context, they can't charge enough to cover the cost of insurance that would adequately protect them from a derailment resulting in a spill or a breach. So we are confronted with risking the small railroad company and not having any good course of relief. We have to carry it, we can't buy the insurance to protect ourselves from it, and therefore we risk the company. Now, we have had some small issues with hazmat. I will cite to you one small anecdote that occurred within the last month or so where we had, in a yard, the rear trucks on a chlorine car derail. The car is upright, it is the middle of the morning. Normally the car would be re-righted. That resulted in an over-reaction, where 75 fire engines, all businesses and 40 square blocks were evacuated. The Holtcher Company came in and re-railed the car at 3:00 o'clock in the morning, while large numbers of apartment dwellers and home dwellers stood in the outside freezing temperatures. The litigation that will go on for that small railroad will be endless, and the railroad owner says he will never again carry another bit of hazardous material. He can't afford to, on the bring of going out of business because of that issue. And this is just the trucks coming off the track, going at 2 miles an hour, which is a very common predicament in the railroad industry. But the over-reaction, and the Transportation Security Administration taking charge of the site itself, trying to determine whether this was a terrorist act, had an enormous impact on the community and on the small railroad. So we think we need some kind of relief in this regard. The common carrier dimension is important, and the movement of hazardous materials by rail is clearly the safest way to move the materials. But to put the companies at risk and the communities suffer as a consequence is unreasonable. Something has to be done. I would strongly urge serious review of this problem. The railroads, the small railroads anyway, their revenue generation is very, very modest in this regard. So the business of rather give up the material or the product, moving the product than risk my railroad, is a common theme in the small railroad world. Mr. Shuster. Would anybody else care to comment? Mr. Hamberger. If I might, the issue is no less of a concern for the larger railroads. While the larger railroads can of course get more insurance, there is a limit on the amount of insurance they can get. And to put all this in perspective, last year there were about 33 million carloads of traffic moving around the United States. Of those, 100,000, less than 1 percent, about three-tenths of 1 percent, were toxic by inhalation. Anhydrous ammonia and chlorine were about 80,000 and the rest were spread around some other commodities. So 100,000, three-tenths of 1 percent, it drives about 80 percent of the insurance costs, not only for the short lines but also for the larger Class I railroads; it could be a bet the company situation. Last June, there was a hearing in this Subcommittee where we tried to point out the issues with the common carrier obligation. This stuff right now has to move; chlorine is used to purify much of the Nation's water supply. So it has to get there. We have a common carrier obligation to move it. But yet we are stuck with a bet the company situation. We are stuck with the cost of the insurance that we can get that is out there. And at least one of the Class I railroads and several others, I think, has said this publicly. Others believe it: that were it not for the common carrier obligation, they would exit the business. With all due respect to my friends in the trucking industry, I have noted that many of them are exiting the business of moving hazardous materials because of the liability issue. They apparently do not have that same requirement. At that hearing, Congresswoman Eleanor Holmes Norton said that the rail industry is, in her words, in an untenable position, forced to carry it, can't get relief at the top end for liability. So we are working the ASLRRA in trying to come up with some sort of approach, a Price-Anderson kind of approach, the same situation that was faced by the nuclear industry many years ago, to see whether or not there is a way we can continue to move it. We are proud of our record in moving it, with 99.997 percent getting from origin to destination without a release. But as we have heard and as we have seen, that .003 percent can be very tragic. So we want to work with the Congress, and we do not yet have a proposal put together, but we are working to try to come up with some sort of an approach that would put a cap on liability, so that we can continue to move it. If that does not occur, the industry, at least the AAR, is going to have to take a look and say, should we try to get out of this common carrier obligation. That is where we are. It is a huge concern, a major concern, because there is a limit on the amount of insurance that you can get. Mr. Shuster. Does anyone else care to comment on that? Mr. Wytkind. I might add a comment, if you don't mind, Congressman. Mr. Shuster. Sure. Mr. Wytkind. We are not in a position to endorse what has been suggested here today. But I will say that notwithstanding the fact that the Committee may address these common carrier obligations that my colleagues here are addressing, I don't think you can look at this issue as this kind of issue in a vacuum. If we are going to deal with that type of problem, you can't deal with that problem if you are also not going to deal with all the myriad issues that have made this industry, we believe, unsafe, and that I think contributes to not only the perception that the railroads are unsafe but the reality that they are unsafe when they have these horrific accidents. So I would argue that before you fix that problem, you also need to look at what problems you also need to fix, which is how do you make this industry safer, so that you don't have fatigued workers who contribute to unsafe operations, and so that you don't have these horrific accidents in our rail system. I think that should be the focus of this legislation. For that reason, I don't think we could endorse something like that until we have a comprehensive addressing of these kinds of issues. Mr. Shuster. Do you do it in conjunction? Mr. Wytkind. It is not a question of conjunction. I think that you can't look at that issue in a vacuum. It is easy to come to Congress and ask for relief in this particular area, but Mr. Hamberger is not asking for action in a number of other area that we al know need action by the U.S. Congress. I think that that would be a singular fix of his members' problems, but it wouldn't fix the underlying rail safety issues that I believe contribute to the problem. Mr. Shuster. The Chairwoman is giving me the hook. Ms. Brown. Yes, listen, you all are moving a lot faster than I am. I do understand that we have a lot of issues, and we want to be fair with everyone as we move forward. There are many, many issues that we have to deal with. I just want to say, before I go to the next person, that the situation in the industry is not as bleak as it sounds here. Of course, I can bring out Mr. Oberstar to give you the history of the industry, and the history of how we even separated the railroad industry and how we developed these different railroad lines. The last time I went to the railroad conference, that we are not having this year, we brought in the people from Wall Street. I can bring them here and talk about how in the black we are right now. So we want to be fair, and we are going to move forward. But we want to be fair moving forward together. Mr. Rodzwicz. Madam Chairwoman, may I add a comment to Mr. Shuster's question? Ms. Brown. Yes, sir. Mr. Rodzwicz. I am not sure there is an answer to that question that would satisfy everyone. In fact, the question may beget actually more questions. For example, worker reallocation. We don't have people that are qualified on every area of track where these hazardous materials may run. So you would probably eventually have to reallocate crew members. I am somewhat familiar, as I told you earlier, with your particular district. In many instances, towns grew up around railroads. Our infrastructure, track capacity, is at or near maximum. What you may end up doing is actually centralizing this hazardous material where it becomes even more dangerous. These are different perspectives and questions I ask myself, that people perhaps with TSA or whomever, perhaps this body will have to come up with the solutions. Tracks only run in certain locations right now. So you may not be always able to reroute hazardous material. So I just think that is a process where I do not know if there is a right answer. Thank you. Ms. Brown. Well, we are going to go down that track together. [Laughter.] Ms. Napolitano. Thank you, Madam Chair, for the hearing. I have a lot of questions formulated, I just won't have the time to ask them all. But I have certain areas that are very key in my urban area that have been a bone of contention for I would say about 20 some odd years. That goes back to my city council days. Part of it is that the railroad had been less than, the railroad representatives had been less than helpful when the cities were having concerns and wanted to meet with them. That aside, at the current time we were working on the Alameda Corridor East, which is that stretch from Los Angeles into the Inland Empire and on to delivery for the eastern area. Part of what we found out in some of the briefings that we had with the railroad and with other individuals, including State officials, was the life of the rail and how does the railroad determine when it is time to replace it. My understanding from some of the briefings that we had from railroad officials were that the steel they were using had been not quite up to par, so they quit using it. That was something that was of concern, because of how much of that had been laid and replaced or not replaced. Well, if that gives, if there is stress, and there is ability for even when it is joined to another rail, whether it is welded or whether it is a joint bar issue or whatever, those are issues that I am very concerned about, whether or not the research has been done, to determine whether or not the rail itself has been adequately upgraded or replaced. And then when we go to the insulated joint bars, it is whether or not the research has been completed. Because there was going to be some research given to a university, and I can't remember off-hand what it was, I would have to look it up, whether or not that has been successful or what has come of it. That is question number two. Then we go on to the grade separations. Is the railroad, any of the railroads, assisting the communities in being able to support financially the building of those grade separations? And how much are they working with the cities and the States to be able to ameliorate the impact it has on the community, especially in heavily populated areas like ours? And if there has been an investment, and as we hear that the biggest number of accidents are at the junctions, at the crossings, so whether or not there has been information that would determine whether or not it is a vehicle problem, is it not enough signage, it is updated rail instrumentation to be able to warn people, what is it? Then we go to the issue of training of railroad personnel. Because at the time when I began getting involved in this issue, there had not been, as I mentioned before, there had been retirement, and this came to us from the railroad officials, of many people after 9/11, and they had not been replaced. So they were putting people on and it would take what, two years, for training? Minimum? Something to that effect. That is what we were informed. These were at hearings with the board of supervisors in L.A. County, along with Congressman Linda Sanchez. And what that told us is we may be having individuals who are not fully trained manning trains that might not have enough experience to be able to deal with issues that come up that might involve an accident. So those are some of the issues. And the third one would be the impact that, and thank God we are having one of the local railroads replace some of the wooden ties with cement ties, but they are closing off a mile and a half, which means that now the L.A. County fire department is having to place emergency centers on both sides of those closures to deal with any kind of accidents, whether it is railroad or whether it is automobiles. People are trying to make turns into the previously opened crossings. And it is not an inexpensive thing for them, and there is no other way of being able to reimburse. Whether or not at the time this is done the railroads are considering working with the communities to be able to address how they can cut down, whether it is the extent, or the length of the changes, or whether it is something that they can work with the cities and try to work out beforehand. Take your choice. Mr. Hamberger. I am going to assume that was for me. Thank you very much, Congresswoman Napolitano. I mentioned right before you came in that one of the things that we are spending a lot of time and energy and resources on is research at a place called the Transportation Technology Center, which is located in Pueblo, Colorado. It is a 54 square mile research facility that the AAR operates under contract to the FRA. We have been running it now for about 20 years. Last year, under the leadership of then-Chairman LaTourette, Chairman LaTourette and now Chairwoman Brown came out twice to see a demonstration of the technologies that we are trying to develop out there. They include wheel profile monitors that use lasers and optics to capture the images of the wheels as the train goes by, acoustic detector systems that offer predictive safety tools, such that when a car goes by whether or not the bearings need to be changed and get that car out of service before it causes an accident. Then rail defect detector cars, which I think goes to exactly what you were talking about yesterday, which uses laser technology to try to identify internal flaws in the rail and in the joint bars. Ms. Napolitano. It is not effective, sir. I am sorry, but we were told it is not effective. There is no way they can look inside that insulation. Mr. Hamberger. As I say, they are working on that. We have a couple of machines that are being tested out there. I understand one of those is now actually in service out on the road. So we are trying to move to address that very specific issue that you raised a concern about. We are also working on new metallurgical, you mentioned the kind of steel, something called banitic steel, which is a new kind of steel alloy that would last longer and not wear out as soon. The interface between the wheel and the rail is a very important aspect of safety, and in fact, TTCI was hired by the London Underground after they had several accidents, to go over and investigate and give advice as to how to improve safety, because of that interface between the wheel and the rail. So it is something that we take very seriously. We are spending on technology, and Madam Chairwoman, you have a standing invitation to come back. We do hazmat training out there as well, and we would love to have the Committee come back, for all the new members who have not had a chance to see that technology. You mentioned grade crossings. I mentioned again in my statement that 94 percent, according to the FRA report to Congress, 94 percent of all the grade crossing accidents are a result of driver error or driver misjudgment. But each of the Class I railroads has a program in place to work with communities to try to close grade crossings and to try to help provide active warning devices at those that are open. It is a fact, of course, that only a closed grade crossing can be totally safe. So where there are grade crossings, then you want to have the active warning devices, and as I was discussing with the Chairwoman, there are technologies out there that can actually cut down on accidents, like median barriers, for example, that pop up when a train goes by. Ms. Napolitano. I am sorry, sir, but that does not stop pedestrians from trying to beat the train. We have had several accidents where children go across because there are no grade separations. Mr. Hamberger. You are correct, it is the number one issue in safety, in our opinion, and that is to try to get people to understand through Operation Lifesaver that it takes a mile for a train to stop, and just try to educate them. Ms. Napolitano. Operation Lifesaver, sir, they started trying to implement it in some of the grammar schools and middle schools close to where the accidents had happened. And they were volunteers, they never went back. So what good is it? Mr. Hamberger. It is a volunteer program. The AAR sponsors it. Individual railroads sponsor it. Congress and the FRA give them some resources. The program is there to try to get the word out. It is an educational effort. Your next issue was training. Mr. Wytkind and I disagree on the level of training that employees receive. I know that the Chairwoman did have the opportunity to make a trip to about a $50 million new facility in Atlanta that one of our members has for training. I will again invite the Committee to come down there and see the kind of training that does occur with respect to engineers. The training program has to be developed and submitted to the FRA for review. We believe that again, the proof is in the numbers. This is the safest year on record. With respect to security training, the security training program we developed last year with the support and actually the leadership of Rutgers University, the National Transportation Institute at Rutgers. That program was submitted to the Department of Transportation and the Department of Homeland Security. And the rulemaking Mr. Shuster is referring to that the Department of Transportation put out in December, the Department opined in its rulemaking that the AAR-sponsored training program met their security training requirements. We do have a situation in place where every member of every Class I will receive that training. So we think that we have addressed the training issue. I will now yield to my friend, Mr. Wytkind. Ms. Napolitano. Is this offered to all railroad employees? Mr. Hamberger. That is correct. Ms. Napolitano. What is the number of hours they must put into training? Mr. Hamberger. The number of hours in training depends on the craft which the person is involved in. I will get you some information on the record about that. Ms. Napolitano. I would appreciate it, sir. Mr. Wytkind. Yes, if I could, thank you for the question. I can't address all the issues, obviously, you are dealing with in your district. But on the issue of training, it is absolutely absurd for the railroad industry to claim that its workers are being trained to the level that they should be. To have the Department of Homeland Security claim that it meets their security requirements, there is a little problem with that: they don't have any. So to say that it meets a requirement, there are no security training requirements. We have been trying to get that enacted into law---- Mr. Hamberger. Department of Transportation. Mr. Wytkind.--for quite some time and have failed to do so, although I have a lot of confidence that in this Congress, the mandate is finally going to exist. Until the mandate exists, the workers are not going to be trained. I would like to know who the workers are that Mr. Hamberger is referring to. I on my own have periodic briefings with rank and file representatives from around the Country, both on the passenger rail and on the freight rail side. Every single call I have had with these groups of workers, the universal message is that training is grossly inadequate, it is typically a ridiculous, low-budget video, and they have no idea what to do in this post-9/11 world that we are living in. They do not have the knowledge and the training and the expertise, hands-on expertise that you need to know to be able to respond to and deal with security breaches and, God forbid, actual attacks on our rail system. So I am sure the curriculum is real nice. The NTI does some good work. I have seen some of it. But unless it touches the workers at the rank and file level and they get real, classroom style training on the job, not to take home to do some interactive CD-ROM, they will then not be trained. Ms. Napolitano. Thank you, Madam Chair. Ms. Brown. You are welcome. Let me just say, this hearing is a different kind of safety. And we will have a hearing on homeland security and what we are doing in the industry post-9/ 11. So we had to separate it a little bit. I did go for the training, and one of the things, as we worked through the issues, for example, the train has to have so much time to stop. We have to educate the public about going around the safety bars, because clearly, the train cannot--I crashed the truck in my training. I failed. So we have to make sure that--this is going to be a homework assignment for all of the members. I am going to make sure that they all go through the simulators and they experience it. Because clearly, they need to know that you cannot, if you are in a little car, and you go up against a train, you are going to lose. I am just very happy that the former Chair of the Committee has joined the Committee and is going to be here to provide the expertise and the knowledge to help us work through this reauthorization. Mr. LaTourette. Mr. LaTourette. Thank you very much, Chairwoman Brown. Before I begin, now that the new majority has stopped these pernicious private travel trips that have obviously corrupted us---- [Laughter.] Mr. LaTourette.--I would hope that the gentlelady would consider a Congressionally sponsored trip out to TCC. I found it to be illuminating, and I think the new members of the Subcommittee would as well. From my observation, they are doing pretty good work. Ms. Brown. I have already approached them, and I am going to write a letter to the Committee and ask for a waiver. Because it was one trip I took every year, because it was educational and informative. It was an opportunity to talk to the Senators and talk to the people in the industry. And one of the things that I think is very important is to educate people on issues that we are going to be dealing with as we move forward. It was very educational in the industry. I want my constituents to know it. It is what we are supposed to be doing. Mr. LaTourette. I couldn't agree with the Chairwoman more, and I hope that you are successful. If you need any help on our side, I am happy to supply it. I want to thank you all for coming. Mr. Hamberger, I was not in the room for your testimony, but I read it. I was in the room for most everybody else's. Just referring back to yesterday first, Mr. Hamberger, I listened to the new Inspector General. I would hope that your membership would take to heart his observations about not reporting. I think we had a little dust-up about what reporting was, and is it a telephone call, is it in the mail. But if the rule is that serious collisions at at-grade crossings need to be reported, they should be reported. I know you agree with me, and I would hope you are going to do whatever it takes to make sure that your membership complies, one. And two, my view is if they don't, they should pay a fine. If it is a rule, you should follow it. I assume you don't disagree with me. Mr. Hamberger. I learned when you were Chairman it was not a good idea to disagree with you. [Laughter.] Mr. Hamberger. But if I could just illuminate one second, and I would be remiss if I did not say for the record that we appreciate the leadership you did provide when you were Chair of the Committee in the last Congress. What came out under questioning of Mr. Scovel was that in 2006, of close to 3,000 accidents, 12 were mis-reported. And in his own report that he issued in an audit in 2005, his predecessor found that the reason for the mis-reporting in that time period was because of a change in the criteria for the call into the NRC versus the written report to the FRA. We take it very seriously and you are of course correct, when there is a violation, there should be a penalty. But I would say that 12 mis-reportings out of almost 3,000 is hardly a crisis. Mr. LaTourette. And I was glad to talk to the Inspector General about that. The second part of my remark is not a question to you, but his facts and figures differed from the ones you have testified to today. I heard what Mr. Wytkind said to Mr. Shuster about statistics, but there is a reason we do keep them. So I do not think that either party is entitled to their own set of statistics. We should know how many accidents there were and how many were reported, how many were not reported. My position continues to be, I do not think 12 is a big number, but they should be reported. If they are not reported and that is the rule, you should follow the rule, and if you do not follow the rule, you should be fined. Ms. Van Dyck, I want to get to you for just a second, because Federal preemption is a huge issue that we discussed not only in this Committee, but on every other Committee that I serve on. A great deal of tension between State legislatures, city councils and the United States Congress. I happen to think that there are some areas where the Federal Government needs to act and preempt the field. I think transportation in many regards is one of them. Just so I am clear, you are not arguing against preemption, you are arguing against the way it is being applied currently in the courts? Ms. Van Dyck. Preemption, you understand my basic premise, I believe. Mr. LaTourette. Sure. Ms. Van Dyck. I do not disagree with you that there are some areas that require uniform handling, and transportation is undoubtedly one of them. I don't disagree with you at all. What I am talking about is, the way this Act was written addresses that precisely, in the preemption section itself. Federal law, where there are standards that have been promulgated, and the FRA has promulgated many, many of them, those are the standards that should be followed. And States cannot have contrary standards. They can't have standards in conflict with those. And I have no problem with that. Mr. LaTourette. Good. Ms. Van Dyck. My problem is, when courts are interpreting preemption to mean that if a standard exists, or the existence of a standard eliminates a common law right of action, if what you are saying is the standard was not met, that is not OK. Mr. LaTourette. Right. I do not disagree with you, I just wanted to be clear on your position. Because some of the tension we have is that some of the States want to go in and have 50 different standards. That is a difficult thing for a railroad, it is a difficult thing for a bank. So as long as there is a regulation that is fair and people are not cheated out of their remedy, whatever that remedy is, I think that we are OK. Just as an aside, I thought one of the most brilliant things that I ever saw was when the American Trial Lawyers Association changed their name to the American Association of Justice. [Laughter.] Mr. LaTourette. If you look at public opinion polls, the only people that score lower than attorneys and trial lawyers are members of Congress. [Laughter.] Mr. LaTourette. So after the last election, I am going to suggest to the Republican Party that we change our name to be like the Party for Truth or something. I really thought that was a great move. [Laughter.] Mr. LaTourette. Madam Chairwoman, we are going to have another round? I want to talk about fatigue. Ms. Brown. Go ahead. Mr. LaTourette. We talked about grade crossings earlier, and Mr. Rodzwicz, I agree with you, most railroads were there before the towns were there. And a lot of the difficulties we have, if you have ever been in the cab of a train with your membership, it is like driving down a tunnel. The trees are on all sides, I think it is a very, very scary thing. I don't have any sympathy for the nuts who decide to beat the train, I don't have any sympathy for trespassers. But I do think that the reason most of us support the Section 130 program is that a lot of these intersections are poorly designed. You can't get the cities--because they don't have the cash to do it, the railroads really are not in a position to build a grade separation at every at-grade crossing in this Country. So I would like to see us, in the next highway bill, make the Section 130 program more robust than it is. But on the issue of fatigue, I would hope that both you and Mr. Wytkind, I think that we need to have a discussion about limbo time. I think that is a valid observation. I think we have to have a discussion about crew size and staffing. But one of the things that I have noticed in your contracts, and maybe you can comment on it, you used to have provisions in your collective bargaining agreements dealing with mileage. What I hear when you talk about fatigue, when you talk about people working too long, when you talk about limbo time, is that you have some of the tension that the airline pilots have. And the airline pilots, there was just a big news story the other day that the guys who are turning 60 want to keep flying until they are 65. The young guys that are first officers want the old guys to retire so that they can become captains and fly the planes. What I hear from time to time is that you have some more senior engineers that are mileage hogs, that love driving the train from the east coast to the west coast, because it pays better and they get more time, things of that nature. So if we, in exploring safety and the issue of fatigue, and we did have a hearing last year on circadian rhythms and stuff that I don't even understand, but if we look at limbo time, if we look at hours of service, if we look at staffing levels, don't you think that some of these things are better negotiated in collective bargaining agreements? And why, if I am right, has the mileage thing been taken off the table in your collective bargaining agreements? Mr. Rodzwicz. First of all, I hope no one is hoping that I retire. It is not going to happen. [Laughter.] Mr. LaTourette. Listen, when I get into the plane, I like the pilot to have a little snow on the roof, because I feel better. [Laughter.] Mr. Rodzwicz. I want to answer your question, but I would take the snow on the roof right now versus what I have. [Laughter.] Mr. Rodzwicz. There are collective bargaining agreements in place that discuss time off. And they have been there for a long time. Unfortunately, for one reason or another, they don't occur. But we have other ideas that we are ready to present. We would like to see, for example, train scheduling. That would tell the operating crews pretty much when they are going to work and allow them to get proper rest. We would like to see the Hirsch model, that has been validated by FRA, we would like to explore that possibility. The best one that we have presented to several agencies is called employee empowerment. What that means is, who knows better than me if I am fatigued and I can't go to work? Unfortunately, because of understaffing, when one of our members or members in other unions in the operating crafts calls up and say, I would like to mark off, you can't, because we need you. Well, I am fatigued. Are you refusing to perform service? But we are willing to explore different alternatives to discuss finding, hopefully, some type of solution to fatigue. Because it is preeminent in our industry. Mr. LaTourette. And I am, too. I tell you that the question that deals with mileage, I would hope as we explore that, which I know the Chairwoman will, that the issue of mileage be resubmitted. The other thing that I would ask you to think about, I visited the CSX yard in Cleveland, Ohio, just outside my district. And the crafts that work in the yard complain that the hours of service regulations, which are important on some of the operating crafts that we are talking about, really hamper them to have the ability, if they want to, and again, you go to employee empowerment, that if they want to come in and work additional hours, if they want to work overtime and things like that, that some of our hours of service stuff gets in the way. I would hope that we would look at perhaps the difference between those men and women that are out driving the trains and repairing the trains and traveling great distances to repair the trains and compare those to the guys who get up just like everybody else in Cleveland with their lunch box, go to work and come back home. So I think if everybody is willing to put everything on the table, maybe we can get this thing done. Mr. Wytkind, did you want to say something? Mr. Wytkind. Yes, just one, thank you, Mr. LaTourette. Thank you for your engagement on this and all the other issues that we work on. I think that having a reasonable discussion about all the issues is the way this debate ought to occur anyway. And having a discussion about what the real rank and file worker needs and what he or she is experiencing in the practical world of working in the industry I think is obviously a relevant issue to the discussion. But one of the examples I gave in my testimony was the fact, and I spoke a little bit to Mr. Hamberger about this during the votes, I think there are some issues here that we might be able to find some common ground on. There is no one, I can't believe that the executives that sits on his board of directors think that there should ever be many scenarios where workers are working 18 to 20 hours out of 24 hours. If that worker said, well, I need the overtime, at some point, that is just too bad. You need to have standards in place that deal with the real safety consequences of having overworked employees. And so I think the gaming of the system, the way in which they schedule the employees, both in the operating and non- operating crafts, the way in which the statute has been interpreted to mean, I talked to the signalman's union, which told me about, they call it this creeping effect of changing the interpretation of what the law says, it went from 12 hours to 16 hours. There is just chronic fatigue in the industry, and coupled with all the staffing shortages that clearly exist, because the AAR's own numbers show they need 80,000 employees in the next five years. The NTSB's numbers are actually higher. I think you have a pretty chronic issue and problem that needs to be addressed by Congress, or it is not going to be fixed. Mr. LaTourette. I couldn't agree with you more. Nobody wins with an exhausted work force. It creates a situation with the railroads where your membership gets pissed off, they are exposed to liability and Ms. Van Dyck has more business. That is the only thing that works out there. So I do think that there is a will to work this out. If there is any way I can be helpful, I look forward to it. Mr. Wytkind. Thank you. Ms. Brown. Thank you very much. As we move forward, this is a very interesting issue, because I have heard both sides. Yes, the men and women that work in the industry want to know that they have a certain schedule. But then when they have the certain schedule, when they can't get overtime, then they are concerned about their income. So as we work through it, we need to bring in some of those rank and files to get their input as we move forward. But I have one question, then I will go to the next person. Mr. Rodzwicz, you mentioned something about sanitation two or three times. Can you tell us a little bit more about that? Because you know, we have had some of the same problems with the cruise industry and they had to address it. Can you expand on that just a little bit more? Mr. Rodzwicz. I can. It is really a maintenance of way situation. Certainly they are going to work with human waste sitting in between the six foot of the tracks. I can tell you as a locomotive engineer that on I do not know how many different occasions I have gotten on an engine and I was actually afraid to use the facility, because of its filth. We have still some railroads, and it is probably an isolated situation, where we have engineers using bags to do their business, and then throwing the bag out the window. So the railroad tried to cure that, this particular railroad, by making you sign your name to the bag. And of course, our operating crews are pretty innovative. They started to sign other people's names to the bag and they still threw them out the windows. [Laughter.] Mr. Rodzwicz. But what I would like to do, Madam Chairwoman, is have a representative from BMWED respond to your question in writing, if I may, please. Ms. Brown. That would be good. Mr. Hamberger. If I might jump in, Madam Chairwoman, one of the things I have discovered in this job over the last close to nine years is that many an issue sticks around, and even when it has been resolved, we go back and talk about things the way they were a few years ago, as my colleague just did. That issue was resolved five years ago by a rulemaking at the Federal Railroad Administration. The practice the gentleman talked about does not occur. It is prohibited. And if he has examples of where that is occurring, I will go with him to the FRA to report it. Thank you. Ms. Brown. So you will be giving us something in writing also? Mr. Hamberger. Yes. Ms. Brown. One other question for you, sir. You cannot investigate an accident if it is not reported within 30 to 560 days. The law says you must reopen the National Response Center within two hours. Is that accurate? Mr. Hamberger. That is correct, depending on the severity of the accident. And as we heard yesterday, in an audit of the 2006 grade crossing accidents, Mr. Scovel testified that of those close to 3,000 accidents, only 12 were not reported properly. Ms. Brown. OK. Mr. Braley? Mr. Braley. Thank you, Mr. Chairwoman, and thank you, all the members of the panel, for spending time with us today. I represent the State of Iowa, which grew up with railways. The first railway bridge across the Mississippi River was built in my district in Davenport, Iowa, in the 1850's. A member of Congress who represented the State of Iowa, Dr. Grenville Dodge, was the chief engineer for the Union Pacific Railway, and served in Congress, and by all accounts spent most of his time here lobbying on behalf of the railway. So we understand the significance of rail transportation to the people of our State. But I am also very concerned about some of the statements that were made today, particularly because of the focus of this hearing, Madam Chairwoman, which is the Federal Rail Safety Program. And whenever there is a concern about how the economic impact of transporting particular cargo affects the issue of rail safety and someone suggests that the quick fix to that is caps on liability, the question that I have for two of our panelists, Mr. Hamberger and General Timmons, is can you explain to me how capping liability to people who are injured by ultra-hazardous chemicals transported by your railways promotes safety? Mr. Hamberger. Yes, I can, because it starts with the fact that we have an obligation, a common carrier obligation to move it. Now, the reason there is a Federal mandate, I presume, is because there was a judgment made that moving it by rail was safer than not moving it at all or safer than moving it by truck. So if that is the conclusion, then you want to continue to move it by rail. But what we have heard from General Timmons and what I am asserting is that the liability threat of these toxic by inhalation hazardous materials that we move, is such that it could put his members out of business, could put my members out of business. So if we want to continue to move it by rail, because that is good public policy, then it seems to me there needs to be something at the high end that says, this is not a bet the company kind of situation. The other alternative which I would posit is get rid of that Federal mandate that says we have to move it and then see what happens. Will it move? I don't know. And since a lot of it that moves is chlorine, about 35,000 car loads, which is used to purify the Nation's water supply in many cities, having it move is an important thing. So that I think is the conundrum or the policy judgment. As I said, Congresswoman Holmes Norton said it was a patently untenable position. I hope that helps. Mr. Timmons. Let me just add to that. As I reviewed the TIH movements for January that I alluded to a little earlier, somewhere in the vicinity of 85 of those movements were less than five cars a month. Very, very small railroads. Those are clearly chlorine cars servicing water treatment facilities in the smallest communities across the Country. If that individual has an accident and goes out of business, that community is in serious difficulty. Because we don't move chlorine by tank truck. It is moved by rail car. Mr. Braley. Can you cite for the Committee one example of any member that went out of business because of the risk you are talking about? Mr. Timmons. No, I cannot. However---- Mr. Braley. Mr. Hamberger, can you? Mr. Hamberger. No, sir. Mr. Timmons. But I can tell you that the insurance predicament that the railroad industry faced over the last five years is such that we can no longer afford that insurance. And if we do have an accident, the litigation costs, damage costs, et cetera, are so exorbitant now, and they have not been heretofore, that those railroads will go out of business. There is just no question about it. You are making the small railroad carry it. He has no way to pay for the insurance to possibly cover it. So if there is an incident, he is out of business. Mr. Braley. So why do you put the burden of that risk on the injured bystander, as opposed to the people who are benefiting economically from using your status as a common carrier to require the transportation of that material? Mr. Timmons. What I would say is that this a collective problem that users, producers, transporters, insurers and potentially the Federal Government tries to deal with. I have no problem with those that are injured receiving just compensation, if it is the result of negligence by the small railroad. My problem is that you have told me to carry it, I can't foot the bill, and out of business we go. Communities and shippers alike across the Country will feel the impact. All I am looking for is some equation, some formula that helps us put together a solution to this problem. Mr. Braley. And spreads the risk in a way that is not so burdensome to your members, is that correct? Mr. Timmons. Absolutely. Mr. Braley. Madam Chairwoman, I just have a follow-up question for Ms. Van Dyck. One of the things you were talking about is the impact of these Federal preemptions, when they are applied in such a manner that completely deprives someone who is injured of a remedy, any remedy. And in your written statement, you talked about a point that I think is rarely mentioned on hearings on safety. You wrote, when no remedy is available to persons who have suffered severe injuries due to the negligence of another, those persons rely on taxpayer funded programs, such as Medicaid and Social Security disability payments. That burden then gets passed to on the American taxpayers when there is no private remedy available. Could you comment on the implications that that brings for your clients and the people you represent in seeking to have some means of putting their life back in order after being subject to this type of an injury? Ms. Van Dyck. Yes, I can. The whole purpose of Sate law remedies and State law courts is simply to make people whole, not to give them a windfall. And the course have been doing that forever. What happens when you have a derailment such as Minot, or crossing cases, I have one where the signals did not work and a family of five were catastrophically injured, with brain injured children who are going to need 24 hour attendant care the rest of their lives, when those kinds of things happen because of negligence, and that is what I am talking about, where a standard has not been met, where safety has not been maintained, how do those people pay for that? Well, if you can't go to the source of the negligence, if you can't hold that entity or person accountable, and our society always has done that with just about everybody, every industry, we hold them accountable for the damage they have caused. The life care plan for one little boy I represent, it is going to cost him between $8 million and $10 million by the railroad lawyers' calculations just to take care of him. His family can't pay for it. The insurance company, he had insurance through his father, but his father had to quit his job to take care of the boy. So now the family is on Government benefits. Well, Government is going to be paying that $8 million to $10 million. It is not that nobody is going to pay it. When the injured worker is the one that is hurt and has those kinds of bills, it is the employer's insurance whose premium is going up that is going to end up paying for that. Ultimately, you probably have a worker who isn't going to be able to stay in the job. So in the end, without the ability to place the burden where it belongs and have compensation for the injury cased only if there is liability, only if there is negligence, not over the board and across the board, if you don't have that, someone else is going to pay for it. And the someone else is going to be the family, the community, the employer and the taxpayers of this Country. That is why our law recognizes the State causes of action. Mr. Braley. Thank you. Ms. Brown. Mr. Walz. Mr. Walz. Thank you, Madam Chair, and thank you to all of you. I know it has been a long day and I appreciate your patience in staying with us. This is truly an important issue and it is one of the prime responsibilities I have as a Congressional representative, is safety, and in terms of railroad safety is why we are here today. I represent Minnesota district that is prepared and on the verge, and ironically enough, I am sorry I stepped out of this, but a call from Secretary of Transportation Peters concerning the largest railroad expansion in 100 years is going to go through my district. Large project upgrade, track expansion, things like that. No one is denying, again, in this hearing, the need for rail travel, the need for improving the ability to do that. My question again focuses on the safety of this. This railroad itself will run through the major city in my district, which is Rochester, Minnesota. It will run within a few hundred feet, feet, of the Mayo Clinic. This institution and the people in Rochester and others have expressed concern about safety. Now, what I have heard, and General Timmons, I looked and in reading your report and listening to you, the answer I get a lot of times is that safety is predicated on age of equipment, or in this case track, and that if you improve track, you are going to improve safety. I did also hear that we are showing an improvement for 2006, I would caution you that we are not done yet with 2006. I had a 30,000 gallon spill a few miles from my house in November that is not showing up yet. So that is yet to be seen, and we need to work that out. My question on this is, though, and I don't come from the railroad experience on this, I come from a couple of decades of working with heavy artillery. The question there, or I guess always our focus, our institutionalized focus, is on safety and accountability, of being able to show and certify how we are safe. My question that keeps coming up on the railroad, whenever I ask, is the increased incidents or the chance of a problem near the Mayo Clinic or anywhere along this line will decreased and be non-existent if we simply put the track in. I don't think I am a believer in that, per se, in that I believe safety comes from an institutionalized safety program with redundant features in there to make sure it doesn't happen. I worked on equipment that being in the National Guard was many generations outdated, yet our safety record was very good, because I can tell you it was accepted. There was no need for whistleblower protection in that everyone was trained and expected to stop any unsafe act at any time, no matter what. My question when it comes to the railroads is, I am wondering, when I am hearing representatives from the people working on the railroad and they are telling me they do not have enough training and they are not comfortable with that, that makes me concerned that the institutionalized safety program is not there, that the ability to certify, to pre- operational checklist and all the things are not there. And I am concerned and think that the rail safety program should include those. I know that you are basing it more on performance based. I don't think you ever get to performance based unless you do those previous steps. So maybe I will just address that to both of you gentlemen. Mr. Timmons. Good observations. And let me start by talking about this business of rail replacement. Permit me just a moment or two of history here. The small railroad industry, as we know it today, over the last 25 years, is as a consequence of the Staggers Act where we were fortunate enough to acquire large portions, about 44,000 miles worth of railroad, over the last 25 years, that had not seen significant upgrades and maintenance, simply because it was economically unfeasible from the large railroad perspective. So our priority in that time is to ensure that the rail weight, gauge, tie, ballast, switches and all of the other infrastructure that we put this equipment on are suitable for the loads that they are required to carry. As we approached that problem, a $7 billion to $11 billion challenge, by the way, as we have approached that problem, the industry shifted from a 263,000 pound axle weight car to a 286,000 pound axle weight car, which forced us to re-look at how we were going to address this problem. So from the small railroad perspective, it is extremely important to get the infrastructure up to the right standard. We can't interchange 286,000 pound cars with the Class I railroads unless we have infrastructure and equipment that is suitable for the job. Now, having said that, the fact that we have rail in the ground today that is 90 pound rail, standard Class I railroad track today is probably anywhere from 128, 130, 142, somewhere in that range, we have railroads that are running with 90 pound rail, 110 pound rail. But the speeds on which we operate over that rail are slow enough that it is not so much of a problem if the right of way, the ties, tie plates, et cetera, are all in good shape. So from my perspective, in order to make sure that we can carry the loads, that the market force has driven us to a larger car, we have to make sure that the right of way is right. So that will help reduce derailments and other related problems as far as the track goes. Now, as you are probably aware, track is inspected every two weeks. So track inspectors are assigned to look at the railroad, physically look at the railroad. The small railroads also operate geometry cars. Now, contrary to the Congresswoman's observation, the geometry cars and some of the more sophisticated equipment, gives a very, very high probability of a solid rail bed and infrastructure set. So by the time you have run geometry cars over it and some of the analytical equipment that looks at the metallurgy pieces, you have a reasonably reliable rail. The small railroad is moving in that direction. We use Class I geometry equipment. Some of the States have their own geometry equipment. So we have spent a lot of time working that particular problem. As far as the training goes, I have to say that we are in arrears in the small railroad industry. We need a lot of work in that regard. We have to offset that, however. We have some very experienced railroaders who trickle down from the Class Is that bring an awful lot of experience. We also are contracted with the National Academy of Railway Sciences, Overland Park, Kansas, which has a national training school there, and through their internet system and through arrangements that we have made with them, we are focusing hard on the professionalism and competence of the small railroad folks. Plus we do our own internal inspections. My safety and operations inspector today is on a railroad analyzing that work and will give them a full report on their shortcomings and how they need to do this. This guy goes around on a continuous basis. We have contractors that do that also. I don't mean to belabor the point, and there is certainly a lot of room for us to improve. But the areas, the physical, the mechanical pieces, are important for us. The training piece is extremely important for us. That gets to the economics. If we can't interchange the cars with the Class Is because our infrastructure is weak, then we are going to go out of business. It is a compelling requirement. I know many of you have heard this story before, but I am compelled to tell you again. The two enormously important funding streams that have come from the Federal Government for the small railroad industry are the Railroad Rehabilitation and Infrastructure and Finance Program, which I am not sure we want to get into that right now. But that is a troubled program. And despite the good work that the FRA has done, the Office of Management and Budget has made that enormously difficult for us to capitalize on that program. Nonetheless, in nine years, we have gotten over $500 million for that program to pump into our system. The other was the enormously important tax credit that most of you in this body sponsored. It exhausts this year. It worked out to be about $501 million. We need to extend that for another three years. And that money is designed specifically to work infrastructure and maintenance problems which directly relates to the safety dimension of the small railroad industry. Thank you very much for your forbearance for that long discussion. But I think it is important for you to appreciate where we are coming from in the small railroad world. Ms. Brown. Thank you. I have three questions, and I will give each one of you an opportunity to answer those questions. You can just kind of jot them down, so if, in any of your closing remarks you want to respond to the question. As we plan for reauthorization, what areas are most needed for revision or reform, one; what are the most important areas for this Subcommittee to focus on regarding FRA's safety activities; and the last one, if there was only two things that you would like to see FRA accomplish, what are those things? I think, Mr. Timmons, you just summed up one of them. But that gives you a moment to think about it. As they think about it, Mr. Shuster, do you have any other things you want to add to that list of three things? Do have something? Mr. Shuster. No, I think I have all my questions in. I appreciate everybody showing up today and I look forward to meeting further with those of you that I already have, so we can continue to discuss some of these issues. Thank you. Ms. Brown. Mr. Walz? Do you want to add anything to that list? Mr. Walz. No, thank you, Madam Chairwoman. Ms. Brown. All right, then, the old teacher in me is coming out. Mr. Wytkind. I am happy to answer your question. I don't think I just have two things, but I guess if I answer question one, then I don't have to answer question three. The issues that we are going to focus on are one, accountability and enforcement, to make sure that our Government does what it needs to do to enforce the law and make the requirements stick, including robust fines when they are needed. The second thing is we are going to fight for stopping this harassment and intimidation through stronger whistleblower protections. Safety and security training is going to be a huge mandate, because despite the comments we heard today, too many of the rank and file workers are not receiving the training they need. Four, we are going to try to find a cooperative way to work on this fatigue issue, reflecting a little bit on Mr. LaTourette's comments. And lastly, I think we do need to deal with the technology issues that we can address through this legislation that begins to fix the problems we have with items like dark territory, where you have off the shelf technology that could eliminate a number of hazards, that if you implemented, would hopefully begin to alleviate a number of the safety hazards in the rail industry. Ms. Brown. Thank you. Mr. Wytkind. Thank you. Ms. Brown. Mr. Rodzwicz. Mr. Rodzwicz. While I certainly concur with all of Mr. Wytkind's statements, there are three areas that I think cover all three questions, really. That would be training, staffing and fatigue. Thank you. Ms. Brown. Just one second. That did not cover your other area that you mentioned earlier, about sanitation. Mr. Rodzwicz. Madam Chairwoman, I promised you that we would give you a written response, and I am a man of my word. Ms. Brown. Ms. Van Dyck. Ms. Van Dyck. Thank you, Madam Chair. The thing I would like to see with respect to focusing on the FRSA in particular, because that is where the problem lies, on the issues that I spoke about today, it is a simple fix. And the fix is basically an amendment to the preemption language that does not get rid of preemption where it is appropriate. What it does do is basically say what was intended all along, because it focuses on safety, it encourages safety. Nothing in this Act is intended to preempt State law remedies, or something along those lines. That is all it would take. Because if people can't bring a cause of action and challenge, whether all these safety regs that are intended for safety are met, then there is no incentive to continue to meet the standards, because it is that incentive that is needed here, and I think it is basically a one line fix. Ms. Brown. Thank you. Mr. Timmons? Mr. Timmons. Madam Chair, I think there are a couple of things that we have to focus on. I have touched on them lightly before, but I am going to say again as a reminder, this business of doubling the penalties for small railroads is something that has been proposed by the FRA, is under consideration now. Ms. Brown. Would you repeat that again? Mr. Timmons. Yes, ma'am. The doubling of penalties for violations that occur on the railroads. As you know, the inspectors find these violations and there is a standard set of violations. This past December, the FRA published a very exhaustive recommended schedule of penalties for TIH equipment, which are pretty significant, 343 different categories of penalties for small railroads and large railroads that have very substantial costs. The doubling of those and doubling of the current penalties we think is unreasonable for the small guy. So I think that needs clear attention. This liability issue for hazardous materials is something that the Congress just must address. Collaboratively, Ed Hamberger and I are trying to work with our constituencies to figure out how we can best do that. But this is a challenging problem. There are a number of very, very difficult and vexatious dimensions to this thing that are going to require some help at this level. So I would say that we need some assistance there. I would also tell you that while these areas need attention, the RSAC, the Rail Safety Advisor Committee, is very effectively looking at a host of issues that need attention. And I am convinced that they will be successful in that regard. But many of them are technical matters, but all of them have an impact on small railroads, as well as large. I can provide that information to you in detail if you would like, with greater explanation. Ms. Brown. Yes, sir, and General, I think you and I need to have some extensive follow-up talks. Mr. Timmons. Yes, ma'am. I will be happy to do that. Ms. Brown. I think we have met before, when we were discussing bonding and other things. It could be bipartisan, it could be with the committees, but I think we need to talk about the short lines in particular and how we can assist them. Mr. Timmons. I would welcome the opportunity to do that, ma'am, and I will work with your staff to get on your calendar. Ms. Brown. Yes, sir. Mr. Hamberger. I would like to associate myself with the remarks of the General and just add one or two things to your point, Congressman Walz. I believe that we in fact have a systems approach. Fortunately, I am a Washington lawyer, but I take a look at the end result. But let me get to you examples of the kinds of redundant procedures that are there, the kind of focus on safety. And I have been out on the railroad as well, and I have been to safety briefings, I have been to safety fairs where the culture is instilled that safety is our number one priority. And if there is a failure on the part of my association with this Committee, it is not getting across the point that there is not a culture of harassment and intimidation, there is a culture of safety. That is what we are going to try and get across. We know we have to work with the Committee and with our friends in labor on the fatigue issue, a huge challenge ahead trying to unwind all of that with respect to the negotiated contracts. But we know we have to take a look at that, and look forward to the hearing on the 13th to get into that. And then of course, as we take a look at the whole issue of hazmat, the issue of a Federal preemption, I hope. I associate myself with Mr. Wytkind's remark. It must be looked at in the context of everything. I agree that we have to take a look at all of those issues from tank car safety to a cap on liability to Federal preemption. So I hope we can take a look at that as a group. And again, I would just close with an emphasis that in the railroad industry, both short line and the Class Is and our employees are focused on safety. That is part of our culture. Thank you for staying with us. Ms. Brown. I don't know that you answered my question. I was looking to hear your answers, what do you think are the one or two things that we need to do? Mr. Hamberger. I think we need to, number one, take a look at the fatigue issue, number two, take a look at the hazardous material issue. I was trying to associate myself with General Timmons there. So I guess those would be the two in the overall context. Ms. Brown. And of course, safety. Mr. Hamberger. We are not recommending at this point any changes in the Federal Rail Safety Act. Ms. Brown. I see. Mr. Hamberger. We will have some comments perhaps on the Hours of Service Act, but not on the Federal Rail Safety Act. Ms. Brown. We are going to talk about it as we move forward. One of the things we are going to be is fair. Mr. Hamberger. Yes, ma'am. Ms. Brown. I want to thank all the witness in particular for the time and the lateness of the hour, for the valuable testimony of the members and the questions. The members of the Subcommittee have some additional questions for the witnesses, and we will ask you to respond to those in writing. The hearing records will be held open for those responses. If there is no further business, I again thank the members of the Subcommittee and our witnesses and the Subcommittee stands adjourned. [Whereupon, at 5:25 p.m., the subcommittee was adjourned.] [GRAPHIC(S) NOT AVAILABLE IN TIFF FOMRAT]