[House Hearing, 110 Congress] [From the U.S. Government Publishing Office] RAIL SAFETY LEGISLATION ======================================================================= (110-39) HEARING 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 __________ MAY 8, 2007 __________ Printed for the use of the Committee on Transportation and Infrastructure U.S. GOVERNMENT PRINTING OFFICE 35-921 WASHINGTON : 2008 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001 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 ELIJAH E. CUMMINGS, Maryland JERRY MORAN, Kansas ELLEN O. TAUSCHER, California GARY G. MILLER, California LEONARD L. BOSWELL, Iowa ROBIN HAYES, North Carolina TIM HOLDEN, Pennsylvania HENRY E. BROWN, Jr., South BRIAN BAIRD, Washington Carolina RICK LARSEN, Washington TIMOTHY V. JOHNSON, Illinois MICHAEL E. CAPUANO, Massachusetts TODD RUSSELL PLATTS, Pennsylvania JULIA CARSON, Indiana SAM GRAVES, Missouri TIMOTHY H. BISHOP, New York BILL SHUSTER, Pennsylvania MICHAEL H. MICHAUD, Maine JOHN BOOZMAN, Arkansas BRIAN HIGGINS, New York SHELLEY MOORE CAPITO, West RUSS CARNAHAN, Missouri Virginia JOHN T. SALAZAR, Colorado JIM GERLACH, Pennsylvania GRACE F. NAPOLITANO, California MARIO DIAZ-BALART, Florida DANIEL LIPINSKI, Illinois CHARLES W. DENT, Pennsylvania DORIS O. MATSUI, California TED POE, Texas NICK LAMPSON, Texas DAVID G. REICHERT, Washington ZACHARY T. SPACE, Ohio CONNIE MACK, Florida MAZIE K. HIRONO, Hawaii JOHN R. `RANDY' KUHL, Jr., New BRUCE L. BRALEY, Iowa York JASON ALTMIRE, Pennsylvania LYNN A WESTMORELAND, Georgia TIMOTHY J. WALZ, Minnesota CHARLES W. BOUSTANY, Jr., HEATH SHULER, North Carolina Louisiana MICHAEL A. ACURI, New York JEAN SCHMIDT, Ohio HARRY E. MITCHELL, Arizona CANDICE S. MILLER, Michigan CHRISTOPHER P. CARNEY, Pennsylvania THELMA D. DRAKE, Virginia JOHN J. HALL, New York MARY FALLIN, Oklahoma STEVE KAGEN, Wisconsin VERN BUCHANAN, Florida STEVE COHEN, Tennessee JERRY McNERNEY, California VACANCY (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 Page Summary of Subject Matter........................................ vi TESTIMONY Boardman, Hon. Joseph, Administrator, Federal Railroad Administration................................................. 10 Brunkenhoefer, James, National Legislative Director, United Transportation Union........................................... 41 Durbin, Martin, Managing Director, Federal Affairs, American Chemistry Council.............................................. 41 Hamberger, Edward, President and Chief Executive Officer, Association of American Railroads.............................. 41 Hyde, Kurt W., Assistant Inspector General for Surface and Maritime Programs, Office of Inspector General, U.S. Department of Transportation.............................................. 10 Pickett, Dan, International President, Brotherhood of Railroad Signalmen...................................................... 41 Rosenker, Hon. Mark, Chairman, National Transportation Safety Board.......................................................... 10 Tolman, John, Vice President and National Legislative Representative, Brotherhood of Locomotive Engineers and Trainmen, International Brotherhood of Teamsters............... 41 Wytkind, Edward, President, Transportation Trades Department, AFL-CIO........................................................ 41 PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS Costello, Hon. Jerry F., of Illinois............................. 69 Cummings, Hon. Elijah E., of Maryland............................ 71 Lampson, Hon. Nick, of Texas..................................... 76 Oberstar, Hon. James L., of Minnesota............................ 77 Walz, Hon. Timothy J., of Minnesota.............................. 82 PREPARED STATEMENTS SUBMITTED BY WITNESSES Boardman, Hon. Joseph H.......................................... 83 Durbin, Martin J................................................. 95 Hamberger, Edward R.............................................. 104 Hyde, Kurt W..................................................... 124 Pickett, W. Dan.................................................. 135 Rosenker, Mark V................................................. 141 Wytkind, Edward.................................................. 148 SUBMISSIONS FOR THE RECORD Boardman, Hon. Joseph, Administrator, Federal Railroad Administration, response to question from Rep. Higgins......... 30 ADDITIONS TO THE RECORD Tolman, John, Vice President and National Legislative Representative, Brotherhood of Locomotive Engineers and Trainmen, International Brotherhood of Teamsters, joint statement of the Teamsters Rail Conference and the United Transportation Union........................................... 152 [GRAPHIC] [TIFF OMITTED] T5921.001 [GRAPHIC] [TIFF OMITTED] T5921.002 [GRAPHIC] [TIFF OMITTED] T5921.003 [GRAPHIC] [TIFF OMITTED] T5921.004 [GRAPHIC] [TIFF OMITTED] T5921.005 [GRAPHIC] [TIFF OMITTED] T5921.006 [GRAPHIC] [TIFF OMITTED] T5921.007 [GRAPHIC] [TIFF OMITTED] T5921.008 [GRAPHIC] [TIFF OMITTED] T5921.009 [GRAPHIC] [TIFF OMITTED] T5921.010 HEARING ON RAIL SAFETY LEGISLATION ---------- Tuesday, May 8, 2007 House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines and Hazardous Materials Washington, DC. The Subcommittee met, pursuant to call, at 2:00 p.m., in Room 2167, Rayburn House Office Building, the Honorable James L. Oberstar [Chairman of the Subcommittee] presiding. Mr. Oberstar. The Subcommittee on Railroads, et cetera, will come to order. I am substituting today for Subcommittee Chairwoman Corrine Brown who had an emergency and left this morning for Florida to attend to her grandmother who has been taken seriously ill. I know Corrine is a very strong family person and she wants to be there. So the Subcommittee will have to do with the gentleman from Minnesota. I welcome the gentleman from Pennsylvania, Mr. Shuster, who has a long and abiding interest and very strong interest in railroads in his own district and from his service on the Committee. I ask unanimous consent at the outset of the hearing for Members of the Full Committee, Mr. Higgins, Mr. Salazar, and Mr. Arcuri to participate in the Subcommittee hearing and to ask questions after the duly constituted Members of the Subcommittee have completed their rounds of questioning. Is there objection? Without objection, so ordered. We are here to consider rail safety legislation including the bill that Subcommittee Chairwoman Brown and I introduced last week. The Administration has its own measure, H.R. 1516, and the Ranking Member of the Full Committee, Mr. Mica, and the Ranking Member of the Subcommittee, Mr. Shuster, have developed their own proposal and circulated it for comment. Of course, any aspects of those proposals are available and focus discussion at the Subcommittee hearing today. Frankly, safety legislation is long overdue. Congress last authorized the FRA in 1994, authorization that expired in 1998. The Committee on Transportation and Infrastructure has not ignored the issue and over the intervening years has held 22 hearings on rail safety. One of those I recall was a very pointed, a very harsh hearing with the then Administrator Jolene Molitoris in which in a particularly sharp exchange I said, well, then get about the business of improving rail safety. And they did. Actions were taken within the Federal Railroad Administration, with the railroads and with the railroad brotherhoods. In the first four months of this Congress, we have had four hearings on rail safety, one of which was a field hearing in San Antonio. The time has come to take action to move through the Subcommittee and Full Committee process, a rail safety bill. The Federal Railroad Administration reports the number of train accidents, including collisions and derailments, has gone from 2,504 in 1994 to 3,325 in 2005. Last year, that number was down to 2,835. That is good news. That is improvement, but it has a long way to go. Forty percent of train accidents, the FRA reports, are the result of human factors. One in four of those results from fatigue. Fatigue, I have often called the silent killer or put differently by Vince Lombardi when he was coaching the Green Bay Packers, fatigue makes cowards of us all. He didn't mean it in the sense of people who are fearsome or fearful or cowardly but rather, as he said, it makes you lose your timing, lose your sense of direction, lose your sharpness and your perceptiveness. The NTSB put it differently: ``The current railroad hours of service laws permit and many railroad carriers require the burdensome fatigue-inducing work schedule of any Federally regulated transportation mode in this Country.'' Comparing the modes is a very revealing exercise. An airline pilot can work up to 100 hours a month. Shipboard personnel at sea can work up to 240 hours a month. A truck driver can be on duty up to 260 hours a month. Train crews can operate a train up to 432 hours a month. That is 14 hours a day, if you go to that number, for 30 days. There is, I think, widespread agreement--even the railroads will grudgingly acknowledge--that, yes, something ought to be done about hours of service. They certainly disagree with us on what and how far to go. But in consideration that there is 40 years since really substantial changes have been made, we ought to do something. In previous Congresses, I introduced legislation to strengthen the hours of service laws for the rail sector, and the Association of Railroads resisted it. Their view consistently has been that that ought to be dealt with at the collective bargaining table. I don't think so. Safety is a matter of public interest. Public interest overrides whatever may, in this arena, be negotiated at the bargaining table. I recall a visit to one of the paper mills in my district, and some of the younger workers had, not in the collective bargaining agreement but in a verbal agreement with plant management, signed up for four twelve hour days and then a four day weekend. I asked one of the senior workers, some guy who had been in the plant for 38 years. I said, what do you think about that? He said, well, I know this. I don't want to be standing alongside one of those guys next to this vat and he does something stupid and I wind up in the vat because he is stretched too thin. You don't have a right to endanger yourself or anyone else in the workplace. The legislation that we introduced requires Class I railroads to develop and submit to the Secretary a plan for implementing a positive train control system by 2014. We are not saying do it tomorrow. We are giving them a considerable amount of time. But that proposal has been on the NTSB's list of most wanted safety improvements since it was developed, since the technology was developed in 1990. Before we scheduled the hearing, I asked NTSB to search their records and provide us information on how many accidents in the past decade would have been prevented with positive train control in place. The answer: 52 such accidents. There is always the concern by industry, if you make us do this. I have heard it in aviation for years. If you make us do this, it is going to cost a lot of money. We pay a lot more money for fatalities. We also address track safety in the bill. In 2006, track- related accidents surpassed human factors-related accidents as the leading category of all train accidents. In Oneida, New York, Pico Rivera, California, Home Valley, Washington, Minot, North Dakota, Nodaway, Iowa, they all raise serious concerns about the condition and about the safety of track on the Nation's railways. On April 18, as a result of the Oneida accident, FRA did an audit of CSX tracks in upstate New York and found 78 track defects and one serious violation. We need to strengthen safety at the grade crossings, an issue this Committee has dealt with for many, many years. I remember my former colleague from Northwestern Minnesota, Arlen Stangeland, a Republican who advocated for funding out of the Federal Highway Program to separate rail grade crossings. It goes back years. The DOT Inspector General says the railroads are still not reporting grade crossing collisions and injuries. They are not reporting them sufficiently to the FRA. Twelve railroads, according to the IG, failed to report 139 collisions within 30 days after the end of the month in which the collision occurred, and some were three years late. The FRA and the States use that information to find the dangerous crossings, to analyze accident trends and to take appropriate action. We have got to have information. That information has to be reported. It has to be available. The Inspector General says in 2006, FRA found an unusually low number of accidents for grade crossing collisions involving a Class I railroad when the train and/or motor vehicle was traveling in excess of 35 miles per hour. No injuries were reported for 154 collisions. Those grade crossing injuries were down in 2006, but if no injuries were reported for 154 collisions and that was just for one railroad, maybe the actual number went up. It reminds me of a period in 1985-1986 when the FAA told Congress and told the public that near mid-airs were down. We checked with the NTSB, Mr. Rosenker, and the NTSB at the time said, oh, no, they are up. We checked with hotline for reporting anonymously and found they were double. Something is wrong here. So we held hearings on the subject of near mid-airs and found there was a vast disparity between what the airlines were reporting and what was happening in the air. So we have the same situation with what is happening on the rails. The FRA relies on just 421 federal safety inspectors and 160 State inspectors to monitor safety compliance. Our bill will increase the number to at least 800 over the next four years. That is a good start and a better start is these hearings. I yield to the gentleman from Pennsylvania, Mr. Shuster. Mr. Shuster. Thank you, Mr. Chairman. It is good to have you here with us today. Also, I found out this morning that Chairwoman Brown's grandmother is gravely ill in Florida. So I just want to offer my thoughts and prayers to her and her family. I hope their grandmother has a speedy recovery. Today's Committee hearing is the fourth hearing we have had on rail safety this year, as the Chairman pointed out. I believe over 20 hearings in the last 10 years. The message that I get and the facts that I see are that the rail industry is safer than it has ever been when you put it in the context of although there have been increases and decreases in the various accidents but when you look at the significant expansion on the miles that are put and the cargo that is carried. When you put that in context, it is a safer industry today than it was last year and the year before and the year before. The final statistics of 2006 show that it was the safest year on record in the rail industry. Nationally, accidents decreased 12.4 percent, and Texas led the Nation with 51 fewer train accidents. Accidents caused by human error, the leading cause of all train accidents, declined by over 20 percent in 2006. But while the rails may be safer than ever, there is still much that we can do and must do. Last week, Chairman Oberstar filed a Rail Safety Reauthorization bill and, as many of you know, I have been circulating my own draft for the past several weeks, trying to get comment and work through to put together a bipartisan piece of legislation which I hope we can and I believe that there is common ground for all of us to work together on a rail safety bill. As we move ahead with a rail safety bill, one of the most important issues is unfunded mandates. If we impose new costs on the railroads, these costs ultimately are passed to customers and consumers who already are suffering the effects of fuel surcharges and other rate increases. The rail industry is currently spending about $10 billion a year, providing new track capacity. This is all private capital, and the investors expect a reasonable return. New and unfunded government mandates could sap money from the railroads' infrastructure expansion programs and further increase congestion on our rails. I have read the Brown-Oberstar bill, and it has some very good points. For example, I agree that we need to make changes in the hours of service law. I also like the idea of developing model State legislation for grade crossing violations. We have not had much time to discuss the actual text of the rail safety bill, so I am glad that we are having today's hearing. I hope that we can continue to work together and, in the next few weeks, develop a truly bipartisan rail safety bill. I am looking forward to this most informative hearing today. I yield back. Mr. Oberstar. I thank the gentleman for his comments. Of course, the purpose of introducing the bill is so it will be available. It is a culmination of--a compilation more than a culmination--a compilation of many of the pieces of rail safety legislation I have introduced over past years and certainly it will be available during this hearing, afterwards and then we will continue internal discussions in the Committee and work toward consensus legislation as far as we possibly can. Do other Members have comments? Mrs. Napolitano? Mrs. Napolitano. Thank you, Mr. Chair. You have heard many of my comments before in regard to rail traffic in my area because of the Alameda Corridor East which has extensive and heavy use and will be increasing in the next few years. Currently, there is 150 trains through my district every day. It probably will double, triple with the transfer of the rest of the U.S. goods. Forty, forty-five percent of the Nation's goods go through my area. The reason I am concerned is I was wondering if FRA can make stronger regulations for rail inspection for the maintenance for the hazmat cars because a lot of what will go through in my district is going to contain hazardous material and it is all highly populated. Los Angeles County has roughly 10 to 12 million residents, depends on who you ask. We have a very, very populated area. So it is a concern in regard to that. The other concern is the railroads have had an Operation Lifesaver which could help inform and educate children and schools about rail safety, and this was put into effect, I guess, some time back and utilized in one of my schools and then dropped because apparently it operated under volunteer staff. I am wondering whether you feel that FRA would be able to create such a program within FRA to be able to be uniform in educating the general public and children about delivering this lifesaving message of safety in vigilance around the railroads. Those two questions right off the bat to Mr. Boardman. Mr. Oberstar. We are not in the questioning period. Mrs. Napolitano. Oh, I am sorry. Mr. Oberstar. We are not at the questioning point. Mrs. Napolitano. I am trying to get ahead of the game here. Okay, well, actually in the 2095, there are a lot of provisions that I am very, very happy with, and it does improve a lot of the whistleblower protections, the fatigue and enforcement, et cetera. Again, because of the heavy use in my district, it is a very big concern, and I certainly want to thank Chairwoman Brown and Chairman Oberstar for putting this piece of legislation together, and I look forward to working with you. Mr. Oberstar. Mr. Cummings? Mr. Cummings. Thank you very much, Mr. Chairman. Mr. Chairman, I do thank you and Ms. Brown for calling this hearing today. I think the thing that I am most concerned about is that I want to make sure that we make it happen. Mr. Chairman, as you well know, it has been a while since we last reauthorized the Federal Railroad Administration back in 1994, and that expired. That authorization expired in 1998. I think that the thing that I am concerned about is the urgency of making it happen. I have read the legislation, your legislation, Mr. Chairman, and it seems to address all the issues in a very practical and reasonable way. I realize that here on the Hill so often what happens is that folks get into a battle over a lot of the small things but forget the big picture, and the big picture is about safety. I think Mrs. Napolitano, in her zeal to get to the questions, pretty much said a lot of what I feel. We have got trains going through some very dense areas like the City of Baltimore. When I read that either the number one or number two cause of train accidents is defective tracks and then we look at the situation with regard to how those tracks are inspected and then we think about hazardous materials spilling as a result of a train accident in my city and bringing life as we know it to a halt, I think that this a very urgent matter. I know, Mr. Chairman, in my working with you as the Chairman of the Subcommittee on the Coast Guard, I know how determined you are to make it happen. We will make it happen, and we will make it happen in a way that is good for the people of our Country, good for the rail industry and good for the passengers and freight haulers in the United States. Like I said, I will submit a longer statement, Mr. Chairman, but I want to thank you again for your leadership. Thank you and Ms. Brown for producing such a comprehensive bill. With that, I yield back. Mr. Oberstar. Mr. Higgins? Mr. Higgins. Thank you, Mr. Chairman. I reluctantly would support an additional regulation of the railroads but for the fact that if industry fails to regulate itself to ensure the safety of its track bed, in this case, the railroad industry, it is the moral obligation of government to regulate. Despite some figures with respect to improvements and uptick in rail safely, it is not true in all areas of the Country. I represent an area in Buffalo, New York. It is a northeastern region area that is subject to harsh weather and an aging infrastructure. Western New York rose up as a great transportation hub, and the rail network remains extensive and fundamentally important to Buffalo and western New York. Over the past 10 years, 166 derailments in Erie and Chautauqua County, 73 of which were due to track defect. Over the past three years, 47 derailments, 20 due to track defect. This record is unacceptable. I would submit that if the major rail companies, CSX, fail to regulate their industry to ensure public safety, it is Government's responsibility to do it. Recent derailments in western New York in December, trains derailed on overpasses in Chateaugay and Buffalo, New York on consecutive days. In April, seven cars spilled coal near Dunkirk, New York. I asked the Federal Railroad Administration and Administrator Joe Boardman responded, but because of a lack of resources, they were only able to inspect certain areas, not able to do a comprehensive inspection throughout the two county area. The lack of Federal Railroad Administration resources to inspect a two county targeted area is unacceptable. I am pleased with the legislation that Chairman Oberstar and Chairwoman Brown have introduced that will nearly double the number of inspectors and provide equipment the Federal Railroad Administration needs to conduct inspections in areas, particularly vulnerable areas like Buffalo and western New York. Thank you, Mr. Chairman, for your leadership on this issue, and I will submit my further remarks into the record. Mr. Oberstar. Without objection, complete remarks will be accepted for the record. The Chair recognizes the gentleman, Mr. Arcuri. Mr. Arcuri. Thank you, Mr. Chairman. I would like to thank the Chair and the Ranking Member for giving me an opportunity to sit in on this hearing today. I would also like to thank our panel for being here including my former constituent, Mr. Boardman. Thank you very much for being here. I would like to lend my support for the Federal Railroad Safety Improvement Act. This bill will improve the state of our Nation's railroads and help minimize the number of future accidents, collisions and derailments. This bill will, among other things, ensure tougher requirements are placed on railroads to decrease fatigue among train crews and increase civil and criminal penalties for railroad companies that fail to comply with safety standards. The bill also provides funding for new track inspection equipment and increases the number of Federal Rail Safety Inspectors on hand that will identify problems and help minimize accidents. As the Chairman referred to, recently on March 12th, 28 cars of a CSX freight train derailed in Oneida, New York, which borders my district and was a mere two miles from Sherrill, New York, a city in Oneida County which I represent. Several of those cars contained chemicals such as ferric chloride which posed a grave health risk and required many people to be evacuated. Thankfully, no injuries or fatalities were the consequence of this disaster. However, the safety and comfort of people close to the accident was deeply affected. Additionally, the derailment caused the New York State Thruway, the main east- west thoroughfare in New York, to be shut down for several hours. My colleague whom we just heard from, Mr. Higgins, who is a bit further down on this line, knows all too well how critical to make sure our freight and passenger railroads are compliant with safety requirements. As he indicated, the numerous derailments in western New York over the last two years and now the Oneida incident is very alarming and raises many red flags about the state of New York's rail infrastructure. While this concern continues to trouble the people of New York, a private company is seeking to build a 190-mile high voltage line from the town of Marcy in Oneida County down to New Windsor in Orange County. The company estimates that more than 90 percent of the proposed primary and alternative routes will follow existing right-of-ways, both along railroad tracks and natural gas lines. The transmission line would consist of 135-foot tall towers and be operated with a rated power flow of 1,200 megawatts. A portion of the proposed route follows the New York Susquehanna and Western Railway right-of-way, a very active rail line which runs through some of the more heavily populated cities and towns in upstate New York. This is a situation where the safety implications and risks are unknown. Imagine if a derailment occurred and the train struck these high tension lines. The well being of my constituents and the safety of New York's railways is a top priority for me as a Member of the Transportation Committee. I have already called on the Department of Homeland Security and Transportation to conduct an assessment of the safety and security vulnerabilities of placing high voltage direct current electric transmission lines along active railroad rights-of-way. However, I want my colleagues to know this is not only a concern for New York State. The Department of Energy recently announced the proposal for two national interest electric transmission corridors designating, affecting 11 States and the District of Columbia. Parts of New York, Virginia and Pennsylvania in particular are faced with the possibility of having more major power line projects forced upon them due to this designation. As a result, many communities across the County will now have to worry about the safety and security concerns of setting these power lines along railroads that currently are in violation of safety standards. It is an issue that should be of concern to all. I look forward to working with the Chair and my colleagues to continue to shed light on this troubling development and to ensure that this critical legislation is quickly considered before the Full Committee. I thank you, and I yield back the balance of my time. Mr. Oberstar. The gentleman from Colorado, Mr. Salazar. Mr. Salazar. I want to thank you, Mr. Chairman. I want to thank you for allowing me to attend this important hearing. While I am not a Member of this Subcommittee, I have a vested interest in the Federal Railroad Safety Improvement Act. I believe that this bill addresses many important issues that have been ignored for far too long, but I am here today to speak about one provision that authorizes funding for a tunnel to be built in the Transportation Technology Center, an internationally recognized train testing facility. This facility is located in Pueblo, Colorado. TTC is used by the Federal Railroad Administration to conduct significant research and development on rail safety. TTC offers 48 miles of railroad test track to test rolling stock, track components, signal and safety devices, track structure and vehicle performance. It also has several one of a kind laboratory testing facilities used to evaluate vehicle dynamics, structural characteristics and advanced braking systems. TTC already operates a world class research and test center offering a wide range of capabilities in railroad and transit research. For the past two years, I have been working to get funding for the facility for an underground rail station and tunnel. The tunnel will add to the center's capabilities and serve as an invaluable resource as we strive to ensure our Nation's railroads are safe and secure as possible. Recent events have sadly demonstrated the vulnerability of underground mass transit systems. Safety experts have identified a number of technology and training needs to prevent attacks on tunnels and to lessen the consequences of such attacks. Technological needs include detection systems, dispersal control and decontamination technologies. The distinctive remote environment of TTC allows such testing and training activities to be carried out at this secure location without disruption of the flow of passenger rail traffic in and out of urban areas. I applaud Chairman Oberstar and Chairwoman Brown for recognizing the important role of such a tunnel and what it will play in the safety of railways. Last year, Chairwoman Brown and Chairwoman Johnson and Secretary Mineta and Mr. Petri from this Committee accompanied me for a tour at the TTC center, and I would encourage the Chairman of the Full Committee, Mr. Oberstar, to do as well and other Members. I would sure appreciate if you could see the abilities and the capabilities that we have at this center. It is one of its kind. There is not another one of its kind in the world. I believe that this bill is long overdue, and I look forward to today's hearing and the witness testimony. Thank you. I yield back. Mr. Oberstar. I thank the gentleman for his comments, and I certainly do look forward to getting out to view your center and see its operations. The gentleman from New York, Mr. Nadler, do you have a comment? Mr. Nadler. Thank you, Mr. Chairman. I would like to thank you and Chairwoman Brown and Ranking Member Shuster for holding this hearing regarding rail safety legislation. I would also like to welcome Mr. Boardman who was our State Transportation Commissioner in New York under Governor Pataki. For years, he has heard me talk ad infinitum, perhaps ad nauseam, about rail freight issues, so I always look forward to his testimony as Administrator of the FRA. I have been a long time supporter of preserving this Country's rail infrastructure. We spend tens of billions of dollars every year on highways and aviation, a lesser amount on passenger rail and virtually nothing, virtually no government funding on rail freight. I hope that this Committee will eventually find a way to increase funding for freight rail capital improvements, so that we can increase capacity. But to do so, we also need to ensure that rail continues to be one of the safest modes of transportation. Although rail is one of the most energy efficient and secure modes of transportation, there were over 2,800 train accidents last year. Most of these accidents were caused by things that are preventable. Over 1,000 were a result of track defects and another 1,000 were caused by human factors, chiefly fatigue. This Subcommittee has held several hearings over the years on rail safety including three hearings last year and four earlier this year. It seems to me we have held enough hearings and it is time to begin moving legislation. I am glad that Mr. Oberstar and Ms. Brown have introduced the Federal Railroad Safety Improvement Act, H.R. 2095, to address the main causes of rail accidents. Among other things, the bill includes hours of service reform that is desperately necessary to address fatigue, and it provides funding to double the number of track inspectors and to purchase equipment that can detect track defects. I look forward to hearing from the witnesses today, particularly as it pertains to this legislation, so that we can finally take adequate action to address rail safety. Thank you, Mr. Chairman. I yield back. Mr. Oberstar. The gentleman from Iowa, Mr. Boswell. Mr. Boswell. Just very briefly, again, I associate myself with what Mr. Nadler just said. Just looking over some of the information that has made available to us, when you look at some of the information from the Safety Board which we will hear from here shortly and compare the hours that are required and put upon people that work the rails, it is revealing. It seems to me like this needs some consideration. I think in terms of what is according to the NTSB, a commercial airline pilot can work up to 100 hours a month jetboard. It says 240. A truck driver can be on duty up to 260. Train crews operate a train up to 432. Now if that would be what they do every day, that would equate to 14 hours a day for 30 days. So I think this discussion needs to take place and some action is needed. I appreciate the time, and I will yield back and listen to the discussion. Mr. Oberstar. I thank the gentleman. Now we look forward to testimony from our panel: Mr. Boardman, Mr. Rosenker and Mr. Hyde. I am anxious to hear Mr. Boardman defend the Administration's bill. TESTIMONY OF THE HONORABLE JOSEPH BOARDMAN, ADMINISTRATOR, FEDERAL RAILROAD ADMINISTRATION; THE HONORABLE MARK ROSENKER, CHAIRMAN, NATIONAL TRANSPORTATION SAFETY BOARD; KURT W. HYDE, ASSISTANT INSPECTOR GENERAL FOR SURFACE AND MARITIME PROGRAMS, OFFICE OF INSPECTOR GENERAL, U.S. DEPARTMENT OF TRANSPORTATION Mr. Boardman. Before I do that, with the indulgence of the Chair. Mr. Oberstar. Yes. Mr. Boardman. I would like to correct the record. Michael, I am still your constituent. Michael's father, Carmen, and I were good friends. I would like you to know, God rest his soul, that Carmen is no longer with us but was also a member of the Public Transportation Safety Board in New York, a very committed safety individual. So I am glad to be here, Michael. Thank you for your indulgence. Mr. Oberstar, Ranking Member Shuster and Members of the Subcommittee, I am pleased to be here today on behalf of the Secretary of Transportation to discuss our proposed rail safety legislation, and I look forward to working with the Committee. On the Administration's rail safety bill, I also appreciate the fact that you entered that bill for us. I would like to talk just about two things today in that bill: authorizing the Safety Risk Reduction Program and protecting its confidentiality. I believe that the strongest argument for the FRA to exist is that it is the FRA which is expected to stand in the shoes of all those people that live, work, or have need of being within the vicinity of a main line railroad track. I believe it is the FRA that is expected to balance an equation that does not have proper third-party risk calculated today. I believe that railroads have miscalculated that risk equation in not ending main track, track-caused derailments. Railroads must do better, and they can. Before I came down here from New York two years ago, and since I have been here, I have referenced the work of Ian Savage in a book entitled the Economics of Railroad Safety. It was written at the request and the support of the AAR. It is a good book in helping to understand the many economic issues around railroad safety, but I have decided that it has it wrong when it comes to what is called railroad myopia in the book. ``The nature of the market for safety makes myopic Behavior possible. The costs of preventive effort are borne in the present whereas accident costs including liability to customers and bystanders occur at random times in the future.'' The author goes on to argue that really the only two failures that exist out there today are those railroads that are inexperienced, and therefore do not understand what they must do, or the unscrupulous behavior by a railroad that reduces costs for today's gain, gambling that a random event will not occur in their future. What I find wrong here is that these events do not happen at random times in the future. They happen because trains derail or collide. Nearly three-quarters of the time, it happens as a result of track failure or human failure, and data shows that it is not random. It is predictable. These events will continue to happen and may happen more frequently unless the railroads embrace a new cost factor in their risk equation that significantly reduces the probability of track-caused, main track derailments and human factor-caused events, especially by fatigued rail employees. The railroads are very aware of these costs, and they could wipe out their business as a result of the lawsuits and damages that occur with main line derailments. To be fair, they are doing what they believe they need to do to make improvements, but it is not enough because the public does not believe it is enough. Those third parties that live, work, or have occasion to be near a railroad say they want trains to stay on the tracks. The FRA has worked with industry in developing PTC, electronically controlled pneumatic brakes, continuous welded rail, rail integrity, rail flaw detection, track geometry standards, ground radar, real time track measurement, automated joint bar inspections, WILD systems, which are wheel impact detectors, and acoustic bearing sensors. It is about the track, and it is about technology_track that needs to be maintained at higher levels than minimum standards, and technology that needs to be deployed and used on both track infrastructure and equipment to reduce the probability of derailment. Together, they reduce risk. Some of our railroads today are embracing this risk reduction strategy. Some use the latest available science to improve track and equipment maintenance. But some have been slow to embrace that science, and all can do better. Human factors cause more than a third of all train accidents, constituting the largest category of train accident causes, and fatigue is at least a contributing factor in one of every four serious, human-factor caused accidents. We believe that fatigued crew members have played an increasing role in railroad accidents over the past decade through poor judgment, miscommunication, inattentiveness, and failure to follow procedures. Our challenge is to ensure that crew members have adequate opportunity to rest, are free of disorders that can disrupt sleep, and are fully engaged in maintaining alertness. With your indulgence, 100 years is long enough. It is time to make sure that we have people operating trains that are not subject to cognitive failure that causes catastrophic accidents as a result of fatigue. Congress created the FRA 40 years ago to ensure railroad safety. Congress needs to delegate, trust, and verify that its creation will end this dangerous problem with both reasonable and enforceable regulations that use the best science available today. It is about time on duty. It is about total time. It is about limbo time and, most importantly, it is about rest time. With your delegation and support, the FRA will use the latest science in a collaborative fashion with our well respected RSAC process to develop the right solution, and we will update that solution as the science improves or as we find a need to do so without passing a statute. These folks, those folks that live, work, and have occasion to be within the vicinity of a main line railroad track think it is about time. Thank you. Mr. Oberstar. So do we. Thank you, Mr. Boardman. Mr. Rosenker? Mr. Rosenker. Good afternoon, Chairman Oberstar, Ranking Member Shuster and distinguished Members of the Subcommittee. I would like to thank you for inviting me to testify on rail safety issues that are being considered today in the proposed rail safety legislation and for your continued interest in furthering the safety of our Nation's railways. Let me begin by addressing the decades long history of fatigue-caused railroad accidents and the frustration we share with the FRA regarding its lack of legislative authority to address the root causes of fatigue. The earliest railroad accident in which the Board attributed fatigue to the probable cause of the accident was a collision between two freight trains in Wiggins, Colorado in 1984. Fatigue accidents have continued unabated such as the collision between trains at Anding, Mississippi in 2005 and Macdona, Texas in 2004. In Anding, both crew members typically worked six days a week, 11 to 12 hours each day. They were working the sixth consecutive day when the accident occurred. In Macdona, we found that the crew members failure to obtain sufficient rest before reporting to duty and the railroad's scheduling practices both contributed to the accident. Proposals being considered for legislation this year address specific elements of employee fatigue. However, we believe that a comprehensive fatigue management program is needed that considers scientifically-based principles when assigning work schedules; these principles include factors that influence acute and cumulative fatigue, the body's ability to adjust to rotating schedules and the responsibility of employees to get sufficient and timely sleep during their off duty periods. We believe that the best means to achieve this result is through regulations promulgated by the FRA that can only be modified as industry conditions evolve. My next topic addresses positive train control systems. Technological solutions, such as positive train control systems, have great potential to prevent serious train accidents by providing safety redundant systems to override mistakes by human operators. PTC has been on the Safety Board's most wanted list of safety improvements for 17 years. In the past 10 years, the Board has investigated 52 rail accidents including 4 transit accidents where the installation of positive train control would likely have prevented the accident. Although we are encouraged with progress underway by some railroads, we believe that positive train control systems are needed on all railroad systems across the entire United States. My next topic addresses improperly positioned switches. One of the most serious train accidents occurred in Graniteville, South Carolina in 2005. A train encountered an improperly aligned switch that diverted it from the main track onto an industry track where it struck a parked train. The track through Graniteville was dark territory. Later in the year, a train encountered a siding at Shepherd, Texas and struck a parked train again in dark territory. The Safety Board first addressed this issue in 1974 after an accident in Cotulla, Texas. A safety recommendation to the FRA to address the safe train speed in dark territory was later closed as unacceptable. The Board believes that automatically activated devices are needed to visually or electronically capture the attention of employees involved in switch operations in dark territory and clearly convey the status of the switch. In the absence of automated switch systems that provide train crews with advance notice of switch positions in dark territory, trains should be operated at speeds that will allow them to be safely stopped in advance of misaligned switches. Additionally, the most expedient and effective means to reduce public risk from highly poisonous gases in train accidents is through operational measures such as positioning tank cars toward the rear of trains and reducing speeds through populated areas. Finally, a proposal for Rail Passenger Family Disaster Assistance mirrors the Aviation Disaster Family Assistance Act of 1996. We believe this legislation would be beneficial to victims and their families, following a rail disaster. The Board, however, has two concerns. The first is clarification of our responsibilities to victims in accidents where the Board is not launching an investigative team and, second, this legislation would present a significant demand on our already stretched resources. In closing, I would like to acknowledge that in our review of the proposed legislation, many of the Safety Board's previously issued recommendations on rail safety have been addressed, and we appreciate this Committee's interest in our safety concerns. Mr. Chairman, I would be happy to respond to any questions. Mr. Oberstar. Thank you very much, Mr. Rosenker, for your very frank and straightforward testimony. You know in what high regard I hold the NTSB and have done for many years. Mr. Rosenker. Thank you, Mr. Chairman. I appreciate that. Mr. Oberstar. Mr. Hyde, we look forward to your testimony that you have from the Inspector General. Mr. Hyde. Thank you, sir. Chairman Oberstar, Ranking Member Shuster, and Members of the Subcommittee, thank you for the opportunity to testify today as you consider legislation to reauthorize the Federal Railroad Safety Program. On May 7, 2007, we released our fourth report on grade crossing safety. We found that FRA can do more to improve grade crossing safety by ensuring compliance with its mandatory reporting requirements for crossing collisions. Additional effort is also needed to address sight obstructions blocking the driver's view of approaching trains. My testimony today is based on our body of work on grade crossing safety. We have identified five actions that railroads and FRA can take to reduce grade crossing collisions and fatalities. These are areas that you may wish to examine as you evaluate current legislative proposals. First, compliance with mandatory reporting requirements. Railroads are charged with two distinct reporting requirements when a grade crossing collision occurs. First, an immediate call within two hours to the National Response Center for all serious collisions, to determine whether a Federal investigation at the accident scene is needed. Second, within 30 days of the end of the month in which the collision occurred, the railroad must report every grade crossing collision to FRA. Timely and accurate reporting of collisions is essential to identifying dangerous crossings and emerging accident trends. More can be done to ensure compliance with both of these reporting requirements. In November 2005, we reported that railroads had failed to notify NRC immediately in 21 percent of serious collisions; most of these involved fatalities or multiple injuries. Our May 2007 report also cited concerns with another requirement, noting that railroads failed to report to FRA 139 collisions timely, with some being nearly three years late. Because FRA did not routinely review grade crossing collision records maintained by the railroads, it does not know whether some 15,000 collisions reported by the railroads between 2001 and 2005 include all collisions that occurred. FRA has begun reviewing collision records maintained by the railroads. These reviews are intended to determine whether grade crossing collisions are being properly reported. The Subcommittee may wish to require that FRA periodically report the results of these reviews. Two, increasing FRA involvement in collision investigations. FRA's 385 inspectors cannot physically examine every grade crossing collision. Instead, the Agency relies on railroad self-reporting. To better evaluate the causes of collisions and railroad compliance with Federal safety regulations, we recommended that FRA broaden its review of railroad-reported information. FRA has just completed a one-year pilot program to collect and analyze independent information. FRA should report the results of the study as soon as possible. Three, addressing sight obstructions. It is hard to steer clear of a train you can't see, especially at the 76,000 public crossings that do not have automatic warning lights or gates. Obstructions, such as overgrown vegetation as illustrated in my written statement, can significantly reduce visibility. For example, between 2001 and 2005, obstructions were present in 689 collisions in which a total of 87 people died and 242 were injured. As of this past March, only 13 states had laws regulating sight obstructions, and these varied widely. FRA should work with the Federal Highway Administration to develop model legislation for states in this area. Four, establishing mandatory inventory reporting requirements. FRA's National Grade Crossing Inventory System identifies grade crossings and the types of warning devices installed. The accuracy and completeness of this inventory are essential because states rely on it to prioritize safety improvements. Voluntary reporting by railroads and states has not been successful. We found that 36 percent of public grade crossing records have not been updated since 2000. We believe that mandatory reporting should be required. My final point is requiring action plans for the most dangerous crossings. We have recommended that FRA identify states having the most dangerous crossings_those with the most accidents year after year_and develop with those states, action plans identifying specific solutions for improvement. In March 2006, FRA completed its first such plan with Louisiana. Officials acted to improve safety at 73 percent of the crossings with more than one collision. FRA is now working with Texas in a similar effort. The Subcommittee may wish to require action in other states with high numbers of grade crossing collisions. Chairman Oberstar, we will work with FRA as it focuses on these areas to make railroad crossings even safer. This completes my prepared statement, and I would be happy to respond to any questions from you or the other Members of the Subcommittee. Mr. Oberstar. Thank you very much, Mr. Hyde. We greatly appreciate the work of the Inspector General over many years. In combination with the work of the National Transportation Safety Board, it is an extraordinarily valuable asset for public understanding of the conduct of the affairs and responsibilities of the many modes of the Department of Transportation. Mr. Rosenker, are you familiar with flight time and duty time in the aviation sector? Mr. Rosenker. I am, sir. Mr. Oberstar. Distinguish those two. Mr. Rosenker. We are talking about flight time that is actually calculated from the moment that the aircraft pulls away from the gate. That amount would be at a maximum of 100 hours a month that we are talking about. Mr. Oberstar. From the time of release of the brake? Mr. Rosenker. Yes, sir. Mr. Oberstar. When does it end? Mr. Rosenker. It ends when it comes back to the gate and the brake is put on again. Mr. Oberstar. When the brake is applied. Mr. Rosenker. Although 100 hours is authorized a month, it is rare that 121 pilots will reach that. They max out at 1,000 a year, so it would normally be somewhere between 65 and 80 hours a month that they are actually operating the aircraft. But duty time also would include flight planning and travel to and from their place of domicile where they are going to have rest as well. Mr. Oberstar. Pilots and flight attendants are paid for flight time, but duty time is a more encompassing term, is it not? Mr. Rosenker. Yes, sir, it is. Mr. Oberstar. Do you know how long it took us to get legislation enacted to limit flight time? Mr. Rosenker. Sir, I don't, but I hope you will be able to give me that answer. [Laughter.] Mr. Oberstar. Fourteen years, 14 years of attempted rulemaking by the FAA, and then it took an action of Congress to get it done. Now, Mr. Boardman, your delivered testimony was wonderful. I nominate you for FRA. But your prepared testimony falls way short. On page five, your testimony says: Treating limbo time as on duty time would shift the law from a safety frame of reference to a fair labor standards frame of reference. Now, I just have to observe that if it was good enough for the Catholic Church to eliminate limbo, then it ought to be good enough for the railroads. Mr. Boardman. You stole my line. [Laughter.] Mr. Boardman. The reason that is there is limbo time comes after the train has stopped. In other words, the brake has been set in connection with the aviation example. So the reason that we would say that is there is because there is no more operating of the train, Mr. Chairman. So it is not a safety issue. What we don't want to become, nor do you want us to become, is a labor department that looks to see whether there has been a violation by two minutes or five minutes in a non-duty, non- operating situation, sir. Mr. Oberstar. Isn't there analogy between aviation flight time/duty time and duty time and operating/running time on a railroad? Mr. Boardman. Is there an analogy? Mr. Oberstar. Isn't there? Mr. Boardman. Yes, there is an analogy in every one of the modes, surface transportation and aviation, all operations. Mr. Oberstar. In this so-called limbo time, the railroad personnel are subject to order of the railroad, are they not? Mr. Boardman. They are, yes. That is correct. Mr. Oberstar. You cannot be at rest. I remember doing a job in the neighborhood when I was a kid in high school for I won't mention his name because he was pretty much of a taskmaster. He said, say, Oberstar, while you are resting, why don't you pick up that bag of stuff over here and carry it over there? You are not resting anymore. If you are under orders, you are sort of always on the edge, aren't you? Mr. Boardman. I understand. I understand the analogy. I guess the analogy, sir, that I would make is that as a former truck driver, I was either at the wheel or I was on duty but not at the wheel, not driving. My responsibility when I was not driving certainly was not to let the truck roll away or let something happen of a vandalistic nature, but it wasn't my job or duty at that time to drive, and would it become my responsibility, then I would have to go back on the logbook. So the analogy that I see here, to some extent at least, is that what we have is that the time is similarly done. I do not know under an emergency situation, and I don't pretend to know the depth that my friends behind me, or lack of friends thereof, that are knowledgeable about the railroads could really tell us about what happens after a person or a crew ends their duty time, whether they are asked to do something else, but I believe that is not the intent. Mr. Oberstar. Your written testimony further suggests replacing the hours of services laws with flexible regulations based on modern scientific understanding of fatigue. I guess that raises the question of whose modern scientific understanding of fatigue we are going to accept and how flexible those regulations are going to be. As I hear from railroad workers, there is way too much flexibility as it now. Mr. Boardman. I think what it means, Mr. Chairman, is that as a result of the report that we finalized and published on fatigue, and the understanding that aviation and NASA and all have done about fatigue, is we know much more about the circadian rhythms, and the activity_all the things that are occurring to an individual. For example, and this is a poor example but it is the one that is coming out of my head right this minute, and that is that you may be able to work longer during daylight and during those hours where you are typically and normally awake and be in a better cognitive state than you can be than if you are working a graveyard or middle of the night kind of an opportunity. So our expectation is in the RSAC process, which is a very deliberative process I can tell you, that we can work through a lot of those issues to try to resolve them and come to a conclusion of what would a Fatigue Management Plan truly look like and what kind of flexibility makes common sense both for the worker and for the railroad, and that is the kind of flexibility that we are really looking for. Mr. Oberstar. Thank you. Mr. Rosenker and Mr. Hyde, is there limbo time? Is there a counterpart to limbo time in other modes of transportation? Have you investigated incidents like the Macdona, Texas situation where they expired their hours of service and then were left to wait for transportation back to point of origin for over 10 hours? Mr. Rosenker. I don't believe we have any type of similar characterization of limbo time in any of the other modes. Mr. Oberstar. Mr. Hyde? Mr. Hyde. Sir, I don't have any information at this time about the other modes that have been audited by my counterparts. I will get back to you on that, though. Mr. Oberstar. Mr. Shuster? Mr. Shuster. Thank you, Mr. Chairman. Mr. Boardman, in the proposal that we put forth-FE and I want to ask all of you this-FE we have put down 276 hours, which according to my research and according to much of the testimony I have heard and talking to people in industry, it is rare somebody is working 432 hours today. Two hundred and seventy-six hours, is that a reasonable number of hours for somebody in the industry to expect to not go over that time according to what you have seen and your understanding? Mr. Boardman. I think to answer that I would need to know, I guess, over what period. Mr. Shuster. One month. Mr. Boardman. What we have found in terms of fatigue is that it is a combination of how many shifts are worked. It is also a combination of how much rest you have had before and so forth, and that again is part of, Mr. Shuster, the flexibility issue in terms of looking at a Fatigue Management Plan rather than just doing it on the basis of the number of hours. Two hundred and fifty hours a month is 3,000 hours a year. A typical year is 2,000 hours, 2,040 hours on an 8 hour day, 40 hour week. So 276 hours--and I won't do the math fast enough,-- is somewhere between 3,000 and 4,000 hours a year in which case everybody is then on overtime and probably working at a greater rate than 10 hours a day for a 6 day week. So it depends on how that time comes. Mr. Shuster. Go ahead, Mr. Rosenker. Mr. Rosenker. I would have to agree with the Administrator that our recommendation is such that we believe there needs to be a scientific study and analysis done. There have been a great number of studies done on the aviation side. There is no silver bullet answer that the maximum is this number of hours if we are going to guarantee that someone is rested and be able to effectively operate a locomotive, for example. So we would believe that it needs to be studied. A host of issues are involved. It is a complex issue because of circadian rhythms and the schedules that you can bump up to each other. You may start on a day. The next time you start working, you might be starting to work at an odd hour that takes you overnight. That can change the way you are going to get recuperative sleep, restorative sleep. So we would like to see a method where, in fact, it is scientifically based, the creation of work schedules, rather than just to say 12 hours is the max and if you get 12 hours here, you can do another 12 hour break. Then, of course, you are alert and able to work. That may not be right. Mr. Shuster. Well, that leads me to the next question. What is a reasonable shift for somebody? In scientific studies, what have you come up based upon what you have seen? Is it a 10 hour shift? Is it a 12 hour shift and then you need 12 hours, 14 hours rest? Mr. Rosenker. Again, sir, I hate to be vague about this, but the reality is depending upon how you end up putting the schedules together. If it is going to be, for example, five or six straight days with the same schedule over and over and over again during a day, you can do it longer than you may be able to do it when you intersperse nights and overnights because at that point you haven't been able to change the circadian rhythm. So it has to be done in a scientific way rather than haphazardly. Mr. Shuster. How far off are we from that scientific method? We have had folks before us, and it doesn't seem to be a whole lot of consensus. That is what you are saying to me now. We are trying to figure that out. Mr. Rosenker. We do know. We do know what the problem is today, and that it is unsatisfactory. It has created an environment where human error can occur and as a result of human error, catastrophic accidents. We have seen it in a number of the investigations that we have made. I would leave it to the professionals that are regulating this industry to come up with the appropriate science to offer that to the industry. Mr. Shuster. Mr. Boardman, do we have that appropriate science to be able to say 12 hours on in daylight, 10 hours at night, how much rest? Mr. Boardman. I would like to get your focus off the hours. I say that from the standpoint of the flexibility end of this if you are only doing it by counting the hours. The hours are important. Don't get me wrong. They are important for two reasons, one, in terms of the total number of hours that you really put out there. The unions understand that, and they also understand that the railroad has to operate its business. So if it cuts the hours too short and they can't get to a reasonable terminal, the railroads have to add a whole lot and reduce their profits and reduce the ability to pay the unions. The unions understand that as well, I think. The reason that we want to get this to the RSAC for is to get at the flexibilities that you are asking about, that the Chairman is asking about. In some cases, it could be based on hours. Even the railroads today know that. Some of them run seven days on, three days off, and then seven days on. Other ones have straight picks and the same job every day, and they are off on the weekends. There are a lot of variables. The difficulty with establishing this based only on the statute is that those variables will be impacted all over, and there wouldn't be an ability. Even though you offer, and I recognize that in your bill, Mr. Chairman, the ability to have Fatigue Management Plans. Without any teeth in it, without the ability for the railroad to manage their employees differently for the future, there won't be an effective tool to be used in the future. Mr. Shuster. Thank you. I see my time is expired. I am outnumbered up here, so I wonder will I have an opportunity. I have a couple other questions, some other things. Mr. Oberstar. I turned the clock off for the gentleman. Mr. Shuster. I appreciate that. Mr. Oberstar. We are going to have a vote, though, I think momentarily here. I will go to other Members, and then we will break for the vote and then come back. Mr. Shuster. Will there be a second chance? Mr. Oberstar. Of course. Of course. Mr. Shuster. Thank you. Mr. Oberstar. Mr. Nadler? Mr. Nadler. Thank you, Mr. Chairman. Commissioner Boardman, the legislation that you have suggested proposed repealing the hours of service statute and replacing it with an FRA regulation. It took the Federal Motor Carrier Safety Administration from a notice of proposed rulemaking in 1996 until 2003 to issue the final rule, but they were then sued and forced to revise its rule. The next rule finally came out in 2005, and it is being litigated again. So from 1996, we still don't have, 11 years later, a rule. I find it hard to believe, given the difficulties in such a rulemaking, that the current Administration would be able to issue a final rule by the end of its term in 2008. According to your section by section analysis, you want to run this rule through the Railroad Safety Advisory Committee which has been dealing with fatigue for years with no solution in sight. Then you want to tackle hours of service for one category of employee at a time, again, according to the section by section analysis. How will you get a final rule out by the end of 2008 under those circumstances? Mr. Boardman. I think, first of all, we will have a rule right away when we put the statute into effect as a regulation. So the existing statute will become the rule immediately, so there won't be any chaos here. There won't be people not understanding what they are going to do. Mr. Nadler. Excuse me. You can determine if we say there should be a rule, you can say the existing statute will be the rule without any hearings and everything else? Mr. Boardman. That is what we are going to have you do. That is our proposal. What you would do is have that become the initial regulation. Mr. Nadler. Then you would go through the whole process for years to see about revising the rule. Mr. Boardman. It is not our intention to do it for years. I understand the cut, but I believe that, if we have motivated people_and I think we do_unions and railroads to resolve this issue, then we don't have to wait forever for the RSAC to act. We can pull it back. Mr. Nadler. Okay, let me ask you a different question. Your bill authorizes a Safety Risk Reduction Program to focus on systemic safety problems. To describe it, you use an example where you say where a traditional enforcement approach would focus on finding cracked joint bars and securing their prompt repair, your approach focuses on systemic issues such as a process of deciding whether to use a joint bar or a weld, the process for restoring joint bars and so forth. My question is this: The bill bars any part of any record the railroads provide to the FRA or that the FRA obtains through some other means through the Safety Risk Reduction Program from public disclosure. That seems pretty broad since the rails could provide extensive information to the FRA under the guise that it is for the Safety Risk Reduction Program. Why shouldn't the public have the right to that information? Mr. Boardman. I think that what we are talking about here is when we ask the railroad to go out and look at its hazards, when we are asking them to find the risks and then find a methodology to reduce that risk, that is information that should be protected except for enforcement. Mr. Nadler. What information should be protected? What the risks are? Mr. Boardman. When they identify for themselves on their railroads what might be necessary to improve. Mr. Nadler. All right, let us hone in on that. A railroad, FRA Rail, Inc. identifies that they have a problem with switches. Their switches are somewhat defective, and they have got to improve that. Why should that be proprietary information? Why shouldn't the public know that? Mr. Boardman. Understand; one of the criticisms for creating an FRA to begin with was that when you establish minimum standards, then a railroad would maintain something only to a minimum standard. Mr. Nadler. Would what? Mr. Boardman. I think when you originally established the FRA, if you establish a minimum standard_ Mr. Nadler. They would only do the minimum. Mr. Boardman. Then they would only do the minimum standard. To some extent, that is true for some railroads, that if they meet the regulation, it meets the minimum standard. We say it meets the minimum standard. These guys, oversight guys over here come and look at us and say, you need to do more than a minimum standard. Mr. Nadler. That just argues that you should raise the minimum standard. Mr. Boardman. Sir, let me finish. Mr. Nadler. Yes. I am sorry. Mr. Boardman. So the point here is that we are looking for a railroad today to maintain or operate at much greater than a minimum standard, especially in relation to the amount of weight or activity that there is on the railroad today. Part of what they have to do in order to do that is look at their risks definitely for the future. Mr. Nadler. I don't understand that argument. Mr. Boardman. Okay. Mr. Nadler. Obviously, you want the railroads to operate at a higher than minimum standard. If they are using 286,000 pound equipment, they are to operate at this standard. If they are only using 263, then at that standard. Why don't you simply raise the standards so that if they are operating at the minimum standard you set, that is safe? Mr. Boardman. Then we will have a new minimum. Mr. Nadler. That is what I just said. Mr. Boardman. Right. Mr. Nadler. Why don't you do that? Mr. Boardman. Then you have the same problem all over again. There are railroads that would then maintain at that minimum, and there are some of them that don't need to move up to that because they don't have the amount of traffic, the weight that is out there. There is a difference among the railroads themselves, especially the smaller railroads. We believe, Congressman, and I think it has become an accepted kind of belief that one of the things that has to happen with every industry that is out there today is they need to find out what their hazards are and reduce the risks of those hazards, and this is one way to do that. Mr. Nadler. Yes, but what I don't understand, and my time is expired, so I won't continue arguing with you. Mr. Boardman. I am not arguing. Mr. Nadler. Discussing. If you raise the minimum standard to an adequate amount so they will only maintain the minimum standard, what is wrong with that and why shouldn't all that be public? Mr. Boardman. I understand. Mr. Nadler. Thank you. I yield back. Mr. Oberstar. As always, a very lively discussion with Mr. Nadler. I would like to ask the forbearance of other Members so that Mr. Lipinski could have his time. He is committed to a time certain at the Rules Committee and will have to leave. Mr. Lipinski. Thank you, Mr. Chairman. It is clear as we are talking in this Congress about climate change and national energy security, rail is an important part of that equation. We need to do what we can to ensure that we do use rail as much as we possibly can. It is important that rail remains efficient. We have to do what we can for rail infrastructure certainly, but rail safety is also an important part of this. I thank that Chairman Oberstar and Chairwoman Brown for introducing this bill, and I look forward to going through and working out what will work best for continuing to use rail efficiently in this Country. Also, of course, the safety of workers is very critical and the safety of all those who use rail, but also with all the railroad lines going through my district, I know how important safety is in all ways. I want to focus on one particular issue here, positive train control, and I want to ask Mr. Rosenker, first of all, how long has PTC been on NTSB's list of most wanted transportation safety improvements and why is PTC on the list? Mr. Rosenker. It has been, and I happen to have brought a copy of the NTSB's most wanted list, and it has been on our most wanted list since the beginning in 1990, 17 years. The condition or, if you will, the status of where we are with the FRA on this issue is_we have three statuses: a green, which means it is acceptable and progressing in a timely manner; a yellow, acceptable response, progressing slowly; and a red, unacceptable response. The color is yellow. It is progressing slowly. We believe it is time to progress in a much faster way, and the provision which is dealt with in Mr. Oberstar's bill is a good provision, we believe, because it puts a date certain. The technology is there. It is a mature technology. Although it is experimental today, in the period of time that the legislation is talking about, significant improvements in the technology will have occurred, and I believe, as a result, significant numbers of derailments and collisions will be avoided. Mr. Lipinski. Do you have any type or sense of measure of how many accidents could possibly be obviated with PTC? Mr. Rosenker. We did talk about 10 years that we took a look at this, and we saw 52 that dealt with fatalities, not just injuries but fatalities, and that there were approximately 500 injuries that could have been prevented as well. I think there were 37 fatalities. We could only find data on about half, 29 of the accidents, of the 52 that we believe that we could end up preventing. This technology is really the future here, and it is not only technology that we believe can do so much for America's railroads but technology in prevention. I must if I can have the moment to compliment NHTSA. They, in fact, recognized the importance of electronic stability control, a relatively simple technology compared to PTC but yet a technology which, when implemented by 2012 in all of the automobiles in our Nation, will begin the process of preventing the deaths, and this is projected between 5,000 and 10,000 people a year. Technology has a wonderful place in accident prevention. PTC is a place where, in fact, it will do a great deal of good, and we believe it is now time to move forward on this technology. Mr. Lipinski. Thank you, Mr. Rosenker. Thank you, Mr. Chairman. Mr. Oberstar. I thank the gentleman. I will go back to Mr. Shuster. Mr. Shuster. Thank you, Mr. Chairman. A question on grade crossings and trespassers, overwhelmingly, the fatalities occur in these two categories and just a couple of questions on the split jurisdiction between the track which the railroads control and then at the intersection which the State highway departments control. I know there is something like 27 States that currently lack laws regarding the rail crossing. It seems to be a problem. Can you, Mr. Boardman, talk about what are things that the FRA can do to improve that and is there anything we can do here to improve that situation? Mr. Boardman. Mr. Miller, if you could put my chart up for me now. Mr. Shuster, I don't know how well this is going to show up. I kind of brought this along. I think this really kind of tells the story. It was a little better earlier. Jim or whoever is running it, if you could back it up and make it bigger. Yes, there, that works. The fatalities are below. Bring it up. Maybe it isn't going to work here. The lower line you see headed down is the number of fatalities, and the line that you see kind of going up 45 degrees is the amount of traffic, railroad traffic today. What we are really seeing, when you combine that with what Mr. Rosenker just said about the number of deaths and injuries or deaths that they would actually reduce, I think he said between 5,000 and 10,000 injuries with the stability control, or deaths. Mr. Rosenker. Yes. Mr. Boardman. Deaths. That would be 10 percent, about 10 percent to 20 percent of the number of deaths that there are out there on the highway. Part of the problem we are having with the state highway departments is that the number is so low in terms of grade crossing accidents, and that is what is really captured in the state DOT books that they put out on their statistics every year. You won't find it separately in here on highway grade crossing accidents because it is in the total number of highway accidents that are out there. So that number is so low dealing with the state highway departments. Every life is precious, but this particular part of it doesn't rise to the level of need or where they are spending the dollars as what we would like it to be as a railroad agency. Mr. Shuster. Mr. Rosenker, your thoughts on it, what can we do? I know there has been Operation Lifesaver and, of course, we have some signage. What can we do to stop not only the grade crossings but trespassers? Mr. Rosenker. I can suggest, and we always say this when we go to an accident, a horrible accident that involved a grade crossing, grade separation is the simplest answer. Take it out of play. It is not easy to do because it is expensive, but that guarantees the separation between a motor vehicle and a train. I went to a terrible accident that occurred on Thanksgiving, the eve of Thanksgiving about two years ago in Chicago. Seventeen cars were struck by a metro train. Amazingly, no one died, but this was such an unusual traffic crossing. It was built at such an oblique angle that you didn't really realize you were sitting on tracks until it was much too late and you were piled up bumper to bumper. The State and the county finally said when we were so adamant about grade separation because they had fatalities before in the 20 some years that that crossing had been there, that they finally decide to say enough is enough. We are going to separate this grade crossing. They will make a little bridge above it. That is the ultimate answer, but I recognize with the thousands and thousands that are out there, that is not always possible. So you will have to use other technological capabilities. I think the Administrator talked about some of those. But education clearly is an important part of that, recognizing you will not win if you are going to try to beat a train. You will lose. You can count on it. Mr. Shuster. Mr. Hyde, more inspectors at the FRA, is that something that would help alleviate the problem and is there any evidence that more inspectors would, in fact, cause the problem to decrease at the crossings? Mr. Hyde. Well, that can be one solution. I wanted to comment that while the number of grade crossing fatalities certainly is small in comparison to the other modes--the highway fatalities are very high, and I know alcohol impaired driving is extremely high--there are still some low hanging fruit that can be done, that can be attacked. That is one of the things that we want to encourage the FRA to do, that is to go after that low hanging fruit. One of the elements that FRA can be doing is helping the states create these action plans to address bad grade crossing collisions where there is, for example, multiple collisions at a particular grade crossing. They have done that in Louisiana. There has been success there. The accident or the collision rate has been coming down since they have implemented that plan. The other thing is that the Department has a very aggressive goal to get the fatalities down overall, and everybody has got to be doing a bit of their part. So we think that the FRA can take some action here. Mr. Shuster. Thank you. Thank you, Mr. Chairman. Mr. Oberstar. Mr. Boardman? Mr. Boardman. I was just going to comment on that just very briefly. Thank you. We have 17 inspectors in the field right now on highway grade crossing, trespasser inspectors, and we are working with those communities. I think Kurt is right, that the kinds of things that we have done in Louisiana, we need to do other places. We are also working with the commuter railroads, a collision hazard analysis with those commuter railroads, and we are having some good successes working with them, especially in California and Florida. They are one of the ones, and I am sorry Jerry is gone at this point in time, but they are one of the ones where a lot of the data that is out there is data that needs to be protected, but you can't really have 100 percent mitigation for all of those collisions. You really find that that is the case. I think Congresswoman Napolitano, when I met with her, identified a tremendous number of at-grade crossings on the Alameda East Corridor that are of a very great difficulty in terms of cost to find a solution to separating the grades and having a community that is satisfied and still keeping the economy moving. This is a very difficult problem. Mr. Shuster. Is that number of inspectors, 17, up, down? Mr. Boardman. That is up. That is up from last year. It is up one. It is up in the last 10 years by double. It went from 8 to 16, 17. Mr. Shuster. Thank you. Mr. Oberstar. What I have found in my years of oversight of safety is that more inspectors means more safety in pipelines, in aviation, in maritime, the Coast Guard arena. Mr. Boswell? Mr. Boswell. Mr. Chairman, I got in a little bit late. Did you talk about the deadhead time, the time that is spent in limbo, earlier? Mr. Oberstar. We have had some discussion, but it is a lively subject and worth further discussion. Mr. Boswell. Well, I don't want to overdo it. Mr. Oberstar. I don't think you can. Mr. Boswell. But I just am curious what their comments might be about how to deal with that because it seems to me like that the person is out there and puts in their hours, and then they have got deadhead or wait and so on. Then it counts against them, and they have to go back on duty. Would you talk about that a little bit? Mr. Boardman. Certainly, Congressman. Let me, at least for my own purposes, define what you have identified. A crew comes in first in the morning and is transported out to its duty location. That is an on duty time that contributes to the overall total amount of time, whether it is going to be the 8, 10 or 12 hours that they would actually work. Then they move their train or do whatever their responsibility is to the end, until they outlaw or come out of time which would be, let us, for example, say this case is 12 hours. At that point in time, they may be in a place that they have to be relieved by another crew that will be on its way out to them. The decision had become that that particular time, while paid for, is limbo time and often times is confused, that it is not paid for. It is paid for. But that is the time that is neither working nor is it a rest time because in the statute you are required to give the proper amount of rest time, which is normally eight hours. It can be 10 hours of rest time, undisturbed rest time. Then the time that it takes to get that same crew to a terminal or a proper relief point is also time that is not worked, but again it is time that is paid. In many cases, this is where the difficulty comes in in terms of determining whether they have the proper amount of rest time after the duty time. That is really where we are, I think. Mr. Boswell. Well, of course, you know what I am driving at. I think Mr. Oberstar is too. That is fatigue, and that is a contributor to the accidents. So what are we going to do about it? Mr. Boardman. In our particular proposal, we believe that we should regulate the hours of service and that the statute would come into the FRA as it currently exists and that we would use that as the new regulation and have a process with the RSAC Committee to come up with a new solution that addresses fatigue using the best science available today. Mr. Boswell. I was in a different kind of service one time, and it seemed like we had a lot of that same situation. They called it, in my case, the military. What are we doing for the worker out there that have got to have the pay, got to have the job, and yet he has got to be held responsible? What are we doing for him or her? Mr. Boardman. I am not sure I understand the question, sir. Mr. Boswell. I am not sure that I have heard a solution. Mr. Boardman. Okay. We don't regulate their hours of service at this point in time. We have no right to go out and do anything from a regulatory standpoint. Mr. Boswell. But you are concerned about safety. Mr. Boardman. Yes, sir. Mr. Boswell. So what are you recommending then? Mr. Boardman. Our bill is that we would want to regulate the hours of service. Mr. Boswell. Mr. Oberstar, maybe you could help me out here a little bit. I don't think I am getting through. Mr. Oberstar. You are not. It is not an illusion. The Administration's bill or proposal is very unfuscatory. Mr. Boswell. Is that French? Mr. Boardman. Now, you are going to have to help me out here. [Laughter.] Mr. Boswell. Did you slip a French word in on me there? Mr. Oberstar. [Phrase in foreign language.] Mr. Boardman. I need help. [Laughter.] Mr. Oberstar. Mrs. Napolitano? Mrs. Napolitano. Thank you, Mr. Chair. I was just going to ask you, what does that mean? I just want to thank Mr. Boardman because his staff has been exceedingly helpful when we had derailments, rail derailments in my area, and they were very, very helpful. So thank you for that. My question relates to the States who can certainly play a very important role in assisting the FRA with ensuring the safety along the rail lines. As you well know, I have a lot of that in my area. Why has the FRA been so reluctant to allow the States to regulate the railroads locally in order to provide a safer environment for their residents? Do you think Congress should modify the section of the Federal Law to give the States regulatory authority where it does not exist currently, knowing that the National Conference of State Transportation Specialists, the Federal Rail Administration's Association of State Railroad Safety, program managers, the California PUC, public utilities, the National Association of Regulatory Utilities and the California State legislators are all endorsing the proposal to be able to allow States rail regulatory authority? Now apparently the Federal courts have not allowed the States to preempt Federal law, and that can play havoc. Like anything else, I think we need to take a look at how we should be able to see how they can be helpful, rather than hindering the ability to be able to ensure safety at the local level. The states argue that their safety regulations are entirely consistent with the FRA's regulations and are not an ``undue burden on interstate commerce.'' Would you address that, sir? Mr. Boardman. Yes, ma'am. I appreciate the fact that we are working together to try to resolve some of these issues, and we work very well with California on many of these issues, but we don't see eye to eye on this preemption issue. As a matter of fact, Congresswoman, when I was Commissioner of Transportation in New York, I might have provided some of those arguments myself when I had a particular railroad that I wanted to do something different with. Mrs. Napolitano. What made you change your mind? Mr. Boardman. Becoming the Administrator and understanding that it is particularly important to have the same regulations in New York as we have in Pennsylvania that we have in Ohio, just like it is important that the laws generally are the same on the interstate highway system or any of the surface transportation modes. We need to do a better job; we need to make sure that we are providing the assistance to the States and the regulations necessary for them to hold railroads accountable through and with us, and we have agreements with about 30 States with 160 inspectors that we work well with. So we prefer that those kinds of relationships grow and that you not have a hodge-podge, because we believe that some States, just like not all States participate with us on a State program. There will be some States that would have no regulation. There would be other States that would have very different regulations. It would be almost impossible for a railroad that is trying to run its train from California to Chicago, or from Chicago on to New York, to be able to understand what those regulations would be. Mrs. Napolitano. I find that argument a little weak, sir, because there are many regulations that have been implemented that you could argue that different States would take differently. But I certainly have an opportunity to be able to talk to some of my State regulators, the legislators and the California PUC and others. In my long history, kind of long, being on City Council and being on State, I have dealt with many of those issues before, and let me tell you it is not easy to bring the railroad to the table, even asking CPUC, California Public Utilities Commission, to come in and take a look or listen to the arguments that cities have in regard to some of the problems they have with the railroad going through their communities. So to say that it would be a hodge-podge, it would help communities tremendously, working with the railroads, of course. I don't mean to sound like I am trying to be condescending to anybody, but working together to be able to find out what is it that we can do to be able to effectively assist the communities in helping the FRA and working with the railroads to come up with a solution to be able to work better. Mr. Boardman. I will find a better way to help you, Congresswoman, to get the railroad to the table. Mrs. Napolitano. Well, the railroads have been very, very receptive in my area because we have had long discussions, especially with Union Pacific. I haven't had an opportunity to sit with the BNSF, but I will do that. I don't have a problem asking them to come to the table. That, I can do. I think what the communities, and I am not just talking about my own area but many of the areas who do not have the background or the expertise or don't know how to begin the process of being able to speak to them openly and be able to get that information to be able to make it better for the community and for the railroad for that matter. Mr. Boardman. I understand. Mrs. Napolitano. Thank you. Thank you, Mr. Chair. Mr. Oberstar. With Mr. Shuster's indulgence, although we normally come back to the Republican side, Mr. Higgins has been waiting a long time, and I will ask him to take his five minutes. Then we will break for the pending vote. Mr. Higgins. Thank you, Mr. Chairman. This is on the issue of track inspections to Mr. Boardman. In response to my request last December that your Agency conduct a comprehensive inspection of the integrity of the rail overpasses in Erie and Chautauqua Counties, your office had responded that the Agency lacked the resources to conduct a comprehensive inspection, and thus the investigation was targeted at the two overpasses where the derailments had occurred. My question is how many more inspectors would your Agency need to conduct a targeted comprehensive two county inspection of the rail overpasses? Mr. Boardman. Brian, I don't know. Excuse me, Congressman, I don't know right this minute how many it would take. I can look into that. [Information follows:] [GRAPHIC] [TIFF OMITTED] T5921.011 I think one of our difficulties at the time is we had a lot of things going on, especially up in the northeast, east Rochester. We had them in Kentucky at the time, Brooks, Kentucky. We were in a situation where for one weekend there in January, I had taken 20 percent of my workforce and did a focused inspection on that railroad. So we were just in a situation that we couldn't look at all of those. But we have at this time, Congressman, gone through a track inspection process and are continuing that all out, throughout New York State on all of the major railroads and most of the smaller railroads, and we will continue to do that. Mr. Higgins. Is your Agency or the Administration seeking additional sufficient funds to hire additional inspectors to do this? Mr. Boardman. We asked for approval, I believe, for a few more inspectors, but we have grown as an Agency on inspectors by about 50 inspectors in the last 10 years. That is kind of where we are at this point in time. We put them on as we saw the need in a specific area to improve and strengthen. Mr. Higgins. But wouldn't the Agency welcome the additional inspectors that are called for in the rail safety legislation under the sponsorship of Chairman Oberstar? Mr. Boardman. Well, there are several things that we would welcome. I mean nobody that is in his right mind would stand around and say I don't want any more resources to do what I need to do, but we think there is a balance that you have to have in terms of not only inspectors but research money. We just put two new rail inspection vehicles on T19 and T20, where we think part of the solution is technology. So it is a look at using and changing skills for the future, making the railroads do more risk reduction themselves. That is why we are looking at that. It is kind of the concept that we have to have a balanced and full plan. Mr. Higgins. Let me just switch to the issue of enforcement and the imposition of fines for track defect. What is the maximum fine assessed to a railroad for a track defect violation? Mr. Boardman. I think the maximum that we could charge anybody is $27,000 per occurrence per day, but that would have to be after they didn't do what we told them to do. There is a sequential process. Mr. Higgins. How many fines were issued in 2006? Mr. Boardman. I could get back to you with that. Mr. Higgins. Okay. To Mr. Hyde, are enough fines being levied and are fines set at a high enough level to induce railroads to aggressively detect and correct potentially dangerous track defects? Mr. Hyde. We have just started an audit in that area, looking at the penalties assessed, how they have collected on those penalties and how it correlates to the violations that were issued. One of the things that we noted that when we were looking at the reporting conditions for grade crossing collisions, for example, reporting to the NRC, we found that one in five serious grade crossing collisions were not reported and that we encouraged FRA to begin issuing violations. They have started doing that. In the past two years, I think they have issued 17 violations in that area. In addition, with the other reporting requirement, they have started doing reviews of the railroads. We would have to look and see whether they have, in fact, started issuing violations for those failures to report to FRA, but I do know that the FRA has been proposing to increase the size of the fine for that type of violation. Mr. Higgins. Okay, my time is almost up. Thank you, Mr. Chairman. Mr. Oberstar. We have a couple of minutes. Mr. Diaz-Balart? Mr. Diaz-Balart. Thank you, Mr. Chairman. I am fine. I may have something when we come back. Mr. Oberstar. We will recess for the pending vote and additional votes and return as soon as we possibly can. I hope within 15, 20 minutes. I just want to put Mr. Rosenker on notice and also Mr. Boardman and Mr. Hyde to address the issue of monitoring railroad radio communications similar to the voice recorder in aircraft as a matter that I would like to explore further, and Mr. Shuster, I am sure, has further questions. The Committee will stand in recess. [Recess.] Mr. Oberstar. The Subcommittee will resume the hearing. When we broke, I said I want to pursue a matter among several items in the Administration bill authorizing the monitoring of railroad radio communications. In Mr. Boardman's testimony, he made some very pertinent observations that FRA is allowed to monitor radio communications only in the presence of an authorized sender or receiver, a railroad employee, and yet when railroad employees know that FRA is present, they tend to be on their best safety behavior, a keen observation. But there are limits proposed by FRA to recording of communications, and they appear to parallel those of the cockpit voice recorder in aviation. In aviation accidents, the recording, the voice communication is not released except under very rare circumstances but maintained for investigatory purposes and for purpose of improving safety in the future. Mr. Rosenker, what are your thoughts about the proposal if you have had the opportunity to review it? Mr. Rosenker. We would be in favor of two phases of the area. First, the area of potential monitoring on a random basis of communications, we believe would be quite helpful to understand what is really happening, what is being communicated on the railroad. Secondly, a device similar to what we have in the cockpit voice recorder would be extremely helpful and, again, should be treated exactly like the way we treat cockpit voice recorders in aviation. Transcripts after an accident only, after an accident would be potentially released and examined in the docket. The actual voice recording itself would be held without the ability to be used other than in the party examination for forensic purposes. Mr. Oberstar. It is in the Administration bill. It is also in the bill that I have introduced. I think those safeguards can be a very useful safety tool. Lufthansa, in the late eighties, 1988, 1989, did an experiment with its flight deck crews of having a television monitor in the cockpit to help pilots understand when they call out an action, whether they actually did what they called out. The flight deck crews were surprised on viewing the video afterwards to see that there were several missteps. It helped them immensely, but they, as U.S. pilots, resisted having a permanent video camera in the flight deck. Let us see. There were some other points that I wanted to pursue. The railroads would say that the provision in my introduced bill that would allow train crews and signalmen 24 hours consecutive off duty within a 7 day period should be extended to require 24 consecutive hours off duty within an 8 day period. I wonder if you have any basis for or whether there is a basis for judgment one way or the other in light of your accident investigation of the event in Anding, Mississippi, where there were a number of consecutive days on duty that affected work performance. Mr. Rosenker. Well, Chairman, again, I want to applaud the Congress and particularly your Committee for the great work that it has done in preparing this legislation. As I said earlier in my testimony and even in response, I believe, to the Ranking Member, there is no silver bullet answer to say this will guarantee a 24 hour separation from the last time of duty to the time you come back, that that will guarantee that fatigue will not exist and an engineer or crewman will come fully rested and ready to work. We would believe that it is best left to a scientific analysis from study before we would say that is the answer. The concept of recognition of fatigue and the amount of hours of service which is described in your legislation is a great, great first step forward, but I hate to hang my hat on it and say that is the answer until the science which we have recommended to the Administrator, the analysis, the study of fatigue itself in this community, we believe would provide us the best evidence to make good fatigue management decisions in scheduling. Mr. Oberstar. The constant refrain and insistence on science when it comes from this Administration, I am highly skeptical. They want science. They look to study global climate change until we are all inundated by the flood and then say, oh, my goodness, that last scientific report wasn't quite good enough. In stress in air traffic controllers, in the late seventies, there were 27 different studies of stress. Each time the study was completed and submitted to the FAA, they found a reason to reject it. Finally, the major study that was so comprehensive that could not be avoided, they didn't do anything. Now I have been on panels with Mark Rosekind of NASA AIMS and William Dement of Stanford on several occasions. I think they are top fatigue specialists and authorities in the world, and they would not support what the railroads are proposing and what their current practice is. They would more come down and decide of the recommendations of the NTSB. Mr. Boardman, how much more study do we need? Mr. Boardman. We don't think you need any more study. We think that we have a report that tells us the kinds of things on our fatigue report that are important. Mr. Oberstar. That is refreshing to hear. We don't need any more study. Go ahead. Mr. Boardman. Well, my researchers might say, wait a minute. But I think we are ready at this point in time to get to business, and that is why we are proposing what we are proposing. Mr. Oberstar. Mr. Shuster? Mr. Shuster. Thank you, Mr. Chairman. Talking about studies, I know that years ago the debate on airbags, and I forget her name. Joan Clayborn? Mr. Oberstar. Joan Claybrook. Mr. Shuster. Right. She pushed for them, and then later on here in the past couple of years she came out and said that maybe it wasn't the right thing or maybe we did it the wrong way. So I think on both sides of the political spectrum, people push for something and then all of a sudden, years later, oops, maybe we did the wrong thing. I certainly don't want to debate you on global warming here today, but as I start to learn more and more about it and the percent of the carbon put in the atmosphere, it is very, very small, what we put in through our cars and our trains and power plants, but anyways, that is for another time. Mr. Oberstar. We could have lovely debate on that one. Mr. Shuster. Technology and study, positive train control, I know there are some operations out there that are employing it. The law, I think, says 2014, it is to be deployed. Where are we in the study of it and what is your view and what is the potential benefit as far as safety goes? Mr. Boardman. Well, we stopped the study that was going forward or that we were doing in Illinois, figuring that we had gotten what we needed out of it at that point in time. I think we have approved the ETMS system for the BNSF Railroad, and they are out beginning to employ it. It is the product safety plan that we really were looking for. But we have the other railroads that have the way that they want to do positive train control, and they are making their judgments right now in terms of how do they deploy this, how do they do it in a rapid enough fashion in the areas that they know they need it and that they can afford it from a standpoint of the competitive environment that they are in. You know I can't take Mark's little most wanted list and color it green at this point in time because he makes those decisions, but I think what he is trying to say is that we are pleased that we are actually making some progress here. We are also pleased, and we see the industry as doing that and embracing it and moving forward. Mr. Shuster. Is 2014 a reasonable amount of time? Mr. Boardman. I don't know. I don't have an answer to that. Mr. Shuster. Mr. Rosenker? Mr. Rosenker. Ranking Member Shuster, we do believe that 2014 is a reasonable implementation date. The technologies are there. It is a decision on which systems do you wish to use. I am reminded of the time when there were discussions of many years ago when I was involved in high definition, the creation of high definition televison. There were 41 proponents that said they had the answer of what high definition television was going to be for the United States and not just the United States but the world. As the systems began to compete with each other for who was going to have the better system, we realized none of them had the ultimate answer. The system came about with what they call the Grand Alliance. About 10 companies got together, the best of all of the systems out there, to create what we now know as high definition television, and the system originally may have come out at a very expensive figure, perhaps two, three, four, five thousand dollars for these televisions. Today, you will buy them for $699. I am not suggesting that you are going to get it that cheap in positive train control. But the one thing about technology we do know: The technologies get better. The technologies get more reliable. They get smaller, and they get cheaper as we evolve through the future of these technologies. We have to make a decision in saying it is now time to do something about positive train control. It will be a device that, in fact, will save lives. It will begin the process of assisting humans when they may do the wrong thing for whatever reasons, whether it is distraction, whether it is fatigue, whether it is lack of training. Whatever it is, positive train control will help and begin to stop the train and brake the train at the appropriate times if, in fact, it is not being done by the crew. Mr. Shuster. How many systems are out there that you know of? Mr. Rosenker. Oh, there are a number of systems. I know BNSF has one. I think the Alaska Railways is experimenting with one. Amtrak has a form of it on the northeastern corridor. These are good systems. I don't want to be the decision-maker on which system is best. That is for the industry to decide. Mr. Shuster. Right. Mr. Rosenker. But it is time to say it has now evolved. It is mature enough that you can begin to use it, and it will get better. These things are scalable in many cases. There will be newer and more interesting applications of positive train control as we get into the future as we have seen with other technologies. Mr. Shuster. Thank you. Mr. Oberstar. Mr. Boardman, we have been, in the many weeks of developing this legislation and years previously of creating its predecessors, given to understand that the six-year time for implementation was the time that those in the industry and your associates, current and preceding, said that is about the time it would take to actually implement such a move. You said you didn't know when. Mr. Boardman. I just don't know right this minute, Mr. Chairman. I can go back and look and see. I guess, is it going to be just areas right now that are signal territory? Are we talking about non-signaled territory as well? I don't know. Mr. Oberstar. I don't think we would legislate where. I think we would give regulatory flexibility to apply such a rule in the highest need and highest incident areas. Mr. Boardman. I promise you an answer. I just don't have it today. Mr. Oberstar. That would be useful. The wonderful thing of the NTSB, Mr. Rosenker, and I have described it over years, is that it is normative. You do have to be somewhat sensitive to what it costs to implement what the Board recommends, but your job is not to do benefit-cost analyses. The railroads claim that the costs of implementing positive train control is too high in comparison to benefits. Thank goodness we have the Board, and we also have the Inspector General's Office. The Federal Railroad Administration has to do the implementation. It is like the Corps of Engineers when they have to go out and do analysis on a project. They say, well, yes, it would provide flood control, but the cost is way greater than the one house that it protect, for example. But this argument about cost is not new. Let me go back to the predecessor Committee on Railroads in a hearing they had in 1969. Mr. Thomas Goodfellow was President of the Association of American Railroads, and he said: ``In these difficult circumstances, to add to already severe inflationary pressures by imposing costly restraints on hours of service of railroad operating employees would clearly be contrary not only to the interest of the railroads but to the national interest as well.'' My God, we have heard this all over again and again. Thank heavens, I have been here long enough to have heard most of it. [Laughter.] Mr. Oberstar. Does the gentlewoman from California have anything further? Mrs. Napolitano. Mr. Chair, I totally agree with you because I hear those arguments in many other areas also. But I would like to just comment briefly on the issue of the joint bar simply because that was one of the areas that caused an accident in my immediate area and the fact that there was no technology that could see through the epoxy to be able to determine whether there was indeed danger. Come to find out, after the report finally came to me about a year and a half later, there had a prior crack that had not been detected over and above the one that really caused the accident. So I would hope that there would be enough funding and support to be able to get the research and development one, so that this kind of an accident in the future can be prevented. Thank God, there was no loss of life or injury. There was loss of property. But, in essence, the laws need to also protect the people, not just the railroads. So I would appreciate any information that can be forthcoming because they have talked about welding the bars. They have gone in and done a whole bunch of infrastructure repair by taking off the bars and putting cement bars. My concern at this point is just on a common sense basis. If you replace wooden ties with concrete bars and you have an excessive amount of traffic, how long before that concrete starts breaking up? I am talking about research and development. How long did they actually go through and determine that this was the best, cheapest or whatever economic way to deal with that? While you may know the answer, my constituents certainly don't, and I certainly would want to know and have the information to be able to give to them to ameliorate a little bit of the concern they might have over the safety of their area. Mr. Boardman. I understand. I think it was a general concept of what we need to do in terms of research and improvement. We have an automated joint bar detection program that is underway. It is actually now being marketed, and we have some railroads that are beginning to purchase that equipment and deploy it. It is also being improved as we go along, and we are well aware of the NTSB wanting us to even move further in terms of, especially, plug rail and figuring out how we are going to be able to improve that as well. So those are areas that we are spending time on, spending resources on, and we hope to have even a better future in the automated detection system. Mrs. Napolitano. Is there any plan to be able to oversee how many of those joint bars will actually be checked for cracks as this equipment? The railroads have an option to buy it or not to buy it, right? Mr. Boardman. That is correct. We are encouraging them to do that. They still have an obligation to get out and look for cracks in those joint bars themselves, but this is a technology that allows them to do it quicker and we think better in the end, and that will be good for the entire industry. Mrs. Napolitano. Thank you, Mr. Chair, for your indulgence. Mr. Oberstar. Mr. Brown is here, and I acknowledge the gentleman from South Carolina. Mr. Brown. Thank you, Mr. Chairman, and thank you gentlemen for coming and sharing this information with us. Mr. Boardman, in examining the Federal Railroad Administration's web site, I noticed that the Administration had already developed the National Rail Safety Action Plan which includes action items and deadlines. Can you talk a little bit about how this plan compares to the plan called for as part of H.R. 2095? Mr. Boardman. The plan_thank you, Congressman_is a plan that will be strengthened by the kinds of things that are being talked about in the bill. In fact, one of the key elements of this Rail Safety Action Plan is making sure that we are using the proper data to determine where we need to apply our resources, whether it be inspector resources or in any of our regions across the Country. So we are supportive of taking that Rail Safety Action Plan and accelerating our research as the Congresswoman over here talked about in terms of what is important, especially in the area right now of hazardous material tank car inspections and focusing our inspections for the future. We will make those improvements. Thank you. Mr. Brown. Okay, thank you very much. My next question is to Chairman Rosenker. Grade crossings come under many different jurisdictions. From a safety expert's point of view, what are some of the challenges this situation brings when it comes to ensuring that a single crossing meets safety standards? Mr. Rosenker. Sir, I talked earlier about the best solution. Unfortunately, the best solution is not possible throughout the United States. The best solution, of course, is grade separation. Where we can do that, we heartily recommend that, and we can guarantee at that point you won't have a grade crossing problem. Next to that, technology and also education. We have worked closely with the Administrator. This is a combined railroad/ highway issue. I wish I had the silver bullet for the answer. There are too many people that are dying annually at these grade crossings. Too many of them believe they can throw the dice and win. I said it earlier. I will say it again. No one wins against a train. Unfortunately, I have seen some horrible results of folks that have tried to throw the dice and lose. The only thing I can suggest is what Operation Lifesaver is doing and more enforcement from the States and local authorities. As a highway issue, I believe we will go a long way, but technology will also have to play a significant role. Mr. Hyde. Congressman, if I can add to that, that is true. There is not any one single magic bullet. There are a number of different challenges at these grade crossings. You can even put in the automatic gates, and I have seen videos where cars go around those gates. But you have to use a multiprong approach in order to ensure better safety at these grade crossings. Having the education, doing driver education, we have seen data out there where a number of the accidents that are occurring, the collisions that are occurring are in the 18 to 25 year old range. There is also information out there that many of the accidents are caused by male drivers, so you have to target your education to that cohort in order to change their behaviors. Mr. Brown. Thank you. Thank you, Mr. Chairman. Mr. Oberstar. On that score, I would simply observe that on our Committee inquiry in Europe, meetings with the European economic community on the Open Skies Agreement, euro control and European Safety Agency, we traveled from Brussels to Paris on the TGV the day after it set the world speed record. Not the same train, we did the Thalys, not the main line TGV, but this was not shabby. This was 185 miles an hour. With an opportunity to be in the cab with the locomotive engineer, I asked, do you have any people who fancy challenging the train? He said, oh, yes, along about our late runs, 11:00 at night, we are doing 185 miles an hour, and there is always some fool who wants to try to outrace the train. Now, there are no crossings. When they get up to 100 miles an hour, they lose control of the car and then fatalities result. So madness is not confined to the United States. [Laughter.] Mr. Boardman. Mr. Chairman, are you saying they are mad in France? Mr. Oberstar. Belgium. Mr. Boardman. Oh, Belgium, sorry. Mr. Oberstar. And France. Mr. Boardman. I didn't know with the most recent election in France. Mr. Shuster. I thought they stepped in the right direction in the last election. Mr. Oberstar. It was quite a step in the right direction, yes, depending on who you are and which party you are in France. [Laughter.] Mr. Shuster. I wanted to make a point about the technology and the positive train control, and I looked back to the airbag. When I go back in history, I am always on shaky ground, talking to the transportation historian or with the transportation historian next to me. But as I recall in 1979, there was a big fight over the airbag, and I believe at that time it failed. Eventually, though, the Federal Government passed a law and put in place a timeline to put airbags into cars. What really caused the airbag to put in the car in mass numbers was that Lee Iacocca of Chrysler decided or saw or identified the marketplace would accept an airbag. So he used it as a marketing tool and helped to save the company by putting airbags in cars. Today, people don't have to have the side airbags, but they purchase them because of the safety involved in them, and it comes down to companies, people, all look at the cost-benefit of a technology. I think we certainly want to be as safe as we can out there, but companies and people don't want to spend money on technology that may work or may not work. I think that if we open this debate up, and again I am new to this Committee, so I may not have the parties right, but I think there was a debate that occurred over the last couple of years in this industry and some wanted positive train control because they could go down to one man crews. When you look at it from their side, they could increase their capacity greatly. Buy more locomotives without having to find hundreds of thousands of new people. If companies can do those things, then they are more apt to say, okay, we will take the risk. But there were some that didn't want that to happen for various reasons, whether they were other companies or whether it was labor. They were concerned about that. I think when we are talking about technology, we need to make sure here in Congress where we are pushing forward solutions but not burdening industries, companies with what we think may work and instead look at the cost-benefit analysis. If we are going to mandate that companies do certain things, if people have to buy airbags, then we have to decide whether the government should foot some of that bill. But if we let the market work and let the process go forward, I think at the end of the day private industry, businesses will purchase those technologies, and things will get better for all of us involved when you deploy that type of technology. Mr. Oberstar. The gentleman makes a very thoughtful observation. In that 1969 testimony that I cited, the President of the AAR referenced tax credits that were made available by Congress to stimulate some of the safety initiatives, and I think that is entirely appropriate. Wherever we can submit it, we ought to do that. We ought to provide such assistance. I also remember the debate in aviation in 1985 and 1986 and 1987 about aircraft coming too close to each other, near mid- airs, near misses in the air, and no one knew how near was near until we finally pushed FAA to make a definition, 500 feet. At 500 feet, you can just about see what the guy is eating in the other airplane. Then the argument was: Oh, TCAS. No, this TCAS 1 is not good. We have to wait for TCAS 2 which will tell you to move up and down in addition to moving to the left or to the right. Then two airplanes collided over Cerritos, California, and there were fatalities. It was a Member of our Committee, Ron Packard, who represented that district, who came to me and said, we have to legislate. We have to require the FAA to install traffic collision avoidance systems and mode C transponders aboard airplanes and use them--from a right conservative Member of Congress. I said, you introduce the bill, and we will hold further hearings on it. We did, and we moved that bill through the Subcommittee and the Full Committee. Passed the House. Passed the Senate. All the whining from the airlines went away because they knew if they didn't, people in droves were going to be reluctant to get on board airplanes. So, yes, there is a consumer choice at the end of all of this. You have all been very forthcoming and patient. There are many other questions that I would like to pursue as we could probably do this better in a roundtable than at the hearing table. So we hold you excused and thank you for your testimony. Mr. Boardman. Thank you, sir. Mr. Shuster. Thank you, Mr. Chairman, Ranking Member, distinguished Members. Mr. Oberstar. Our next panel waiting anxiously for their turn at bat: Mr. Hamberger, President and Chief Executive Officer of the Association of American Railroads, familiar to this Committee room, having worked in it once and having testified here many times; Mr. Ed Wytkind, also a frequent witness and voice at our hearings, President of the Transportation Trades Department of the AFL-CIO; Mr. John Tolman, Vice President and National Legislative Representative for the Brotherhood of Locomotive Engineers and Trainmen, the International Brotherhood of Teamsters; Mr. James Brunkenhoefer, National Legislative Director of the United Transportation Union; and Dan Picket, International President, Brotherhood of Railroad Signalmen; Martin Durbin, Managing Director, Federal Affairs, American Chemistry Council, welcome. Oh, yes, I want a copy of that photograph taken of Mr. Hamberger and Mr. Wytkind that close together. That may be the last time. Mr. Hamberger. We have broken bread together on several occasions in a polite way. Mr. Oberstar. Mr. Hamberger, you are first. TESTIMONY OF EDWARD WYTKIND, PRESIDENT, TRANSPORTATION TRADES DEPARTMENT, AFL-CIO; JOHN TOLMAN, VICE PRESIDENT AND NATIONAL LEGISLATIVE REPRESENTATIVE, BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS; JAMES BRUNKENHOEFER, NATIONAL LEGISLATIVE DIRECTOR, UNITED TRANSPORTATION UNION; DAN PICKETT, INTERNATIONAL PRESIDENT, BROTHERHOOD OF RAILROAD SIGNALMEN; EDWARD HAMBERGER, PRESIDENT AND CHIEF EXECUTIVE OFFICER, ASSOCIATION OF AMERICAN RAILROADS; MARTIN DURBIN, MANAGING DIRECTOR, FEDERAL AFFAIRS, AMERICAN CHEMISTRY COUNCIL Mr. Hamberger. Thank you, Mr. Chairman, Mr. Shuster, Congresswoman Napolitano. Thank you so much for the opportunity to be here. On behalf of the Association of American Railroads, I would like to thank you for the opportunity to address rail safety and specifically, Mr. Chairman, the bill that you and Chairwoman Brown introduced. The views contained in my statement also represent those of the American Short Line and Regional Railroad Association, and I would like to submit for the record a letter from that association's president, General Richard Timmons, in which he endorses my testimony and emphasizes five provisions of particular concern to smaller records. Mr. Oberstar. Without objection, that letter will be received for the record. Mr. Hamberger. Thank you, sir. We recognize that the primary purpose of H.R. 2095 is to improve safety, and the railroads wholeheartedly share that goal. Let me start out by pointing out that the rail industry's safety record is excellent and getting better. Since 1980, railroads reduced their overall train accident rate by 69 percent, their rate of employee casualties by 81 percent, and their highway rail grade crossing incident rate by 76 percent. The employee casualty rate and the grade crossing incident rate in 2006 were at their lowest levels ever while the train accident rate was just fractionally higher than the record set a few years ago. I would emphasize that we believe that the accident rate is the best metric rather than the raw numbers of accidents since the rate reflects the growth in traffic which we have experienced in the past few years. I also want to express strong support for the provision that authorizes funding for the design, development and construction of a tunnel testing facility at TTCI in Pueblo, Colorado, as Mr. Salazar mentioned earlier today. While my written statement goes into detail on a great number of issues, I would like to focus on two areas here today, Hours of Service and technology. Obviously, a primary focal point of H.R. 2095 is fatigue. As I noted in my testimony before this Committee in February, it is not in the railroads' best interest to have employees who are too tired to perform their duties properly. Consequently, individual railroads are pursuing a variety of fatigue countermeasures based on what they have found to be most effective for their particular operating environments. Combating fatigue, of course, is a shared responsibility. Just as employers need to provide an environment that allows employees to obtain the necessary rest during off duty hours, employees themselves must set aside time when off duty to obtain the rest they need. Generally speaking, railroads support provisions in the legislation prohibiting train and engine employees from working unless they have had at least 10 hours off duty, up from 8 hours, and those 10 hours should be uninterrupted as called for in the legislation. The provision eliminating limbo time, however--that is time spent after a crew has reached its 12 hour limit and is awaiting transportation or being transported--is another matter. We believe that it would impose intractable scheduling problems for the railroads. Let me underscore that railroads do not intend for their employees to get caught in limbo time. It is not part of the operating plan. What happens is in the very nature of railroad operations, trains can be subject to unplanned events, a grade crossing accident, for example, a washout, a hotbox detector indicating that a car needs to be set out of service. All of that requires time and can prevent a train from reaching its scheduled destination within its crew's allotted 12 hours. Under this legislative provision, that could cause a violation of the Hours of Service Act through no fault of the railroad. We believe there is a better way to combat any cumulative sleep deficit that may occur as a result of limbo time. First, any employee who works 12 consecutive hours on duty and then at least one hour of limbo time should receive, under our suggestion, 14 consecutive hours of off duty time. That goes to the issue of what the limbo time concern is, and that is fatigue. You don't want to have a cumulative sleep deficit. Let us have 14 hours off. Second, train and engine service employees should be subject to a new monthly maximum on duty time of 276 hours. That compares to the 260 hours that the trucking industry has, but we believe that even though limbo time is not on duty time, that it should count toward that 276 hour limit. These measures would significantly reduce the maximum monthly time for train and engine employees from the 432 you mentioned, Mr. Chairman, and we believe it would strike a balance between fatigue concerns and the 24/7 reality of railroad operations. The legislation also prohibits railroads from requiring signal employees to perform emergency work more than three days in any seven consecutive days. There are occasions when this limitation would cause significant harm to rail operations and actually to the greater good. Hurricane Katrina is a vivid example of this. After that storm, signal workers performed herculean tasks in getting the rail system up and running again. Had this provision been in place at that point, the railroads' ability to respond to the storm would have been severely diminished and service restoration would have taken far longer. A similar situation is occurring even as we speak in Kansas and other midwestern States hit by tornados this past weekend. We believe the concerns raised by the BRS both at the February hearing and here today can be addressed by more tightly defining what is an emergency versus routine service without placing handcuffs on the industry in these kinds of situations. Finally, in the Hours of Service area, we believe that these recommendations are sound recommendations, but in the alternative we would also support a transfer of all hours of service to the FRA with reliance on the FRA's professional judgment as is the case with FMCSA and the trucking industry. I know I am running over, Mr. Chairman, but I ask. Mr. Oberstar. Finish your statement. Mr. Hamberger. Thank you, sir. The railroad industry shares the goal of the legislation to develop and employ effective technology, and let me just move quickly into that area of positive train control. We believe that the deadline imposed in the legislation is, in fact, too rigid. We are developing and testing advanced train control systems that can help prevent accidents by automatically stopping or slowing the trains before they encounter a dangerous situation, but those systems are indeed very complex. At the minimum, they must include reliable technology to inform dispatchers of a train's precise location, a means to warn the operator of the train of the potential problem and a means to take action, that is, override the individual in the cab if necessary and independent of the train operator to prevent an accident from occurring. We are committed to using advanced train control technology. The tremendous complexities involved in those systems and the need for interoperability across the system argue for flexibility instead of a rigid schedule. We would recommend an approach in which the railroads would submit their implementation plans as called for in your legislation to the FRA with the FRA then reporting back to Congress on what they believe might be an appropriate timeframe, and at that time perhaps a firmer implementation schedule could be established. Finally, we are concerned about a provision in the legislation mandating regulations with respect to the misaligned switches in non-signaled territory. We have gone through the FRA accident data, and last year there were three accidents attributable to switch positions not in alignment that we believe this provision is meant to address, three accidents. Morever, the FRA is already addressing this through an emergency order issued in 2005 and a rulemaking that will supercede that emergency order. As General Timmons points out in his letter, this provision would be beyond the resources of many short line railroads to implement and would produce a strong incentive to remove many of those switches to the detriment of customers. Let me just reiterate that safety is our top priority. We believe that shows through our improving safety record. We are committed to working with you and others in Congress and our employees and customers to ensure that rail safety continues to improve. Thank you and thank you for indulgence in allowing me to run over time. Mr. Oberstar. Your complete statement will appear in the record. Mr. Hamberger. Thank you. Mr. Oberstar. Mr. Wytkind? Mr. Wytkind. Thank you, Mr. Chairman and Mr. Shuster for having transportation labor present its views on the important issues facing the Nation and this Congress about the safety of rail transportation. I want to thank you, Chairman Oberstar, and of course Chairwoman Brown for making passage of this bill such a top priority. I have already testified once before the Committee not long after the new Congress began its business, and we are certainly pleased to see such aggressive actions being taken by this Committee to address a long overdue rewrite of Federal rail safety programs. Let me say up front that the Federal Railroad Safety Improvement Act represents a historic step forward in improving the safety of our rail system and its workforce. We strongly endorse the Oberstar-Brown bill, and we strongly urge its adoption without any further delay. We also appreciate the fact that the Committee is seeking the input of rail workers in this Country and their unions in trying to address many issues in the rail safety arena that have been largely ignored over the last several years. Second, we applaud the Committee for moving forward with this bill despite the opposition of the railroad industry which has grown accustomed to stopping any meaningful attempts to pass rail safety reform legislation. Make no mistake about it; we will see and have seen in the submitted testimony fancy charts and a lot of spin about government data, and we will be impressed, I am sure, with all the myriad programs that the railroads are running. But, ultimately, the railroads are truly dismissing most of what is in the Oberstar-Brown bill. In the end, they will talk about working with the Committee but will probably spend most of their time trying to derail a comprehensive rewrite of rail safety laws in this Country. We hope the Congress says no to those political attempts by the railroad industry. Let us hope that the facts about safety hazards in this industry that have been well documented just today, the facts about this industry's safety culture, the facts about tired, poorly trained and harassed and intimidated employees, and the fact that we still haven't addressed rail safety since the last rewrite in 1998 will far outweigh the rail lobby's political reach into the Congress in trying to stymie efforts to pass rail safety legislation. Third, fatigue in the rail industry has reached a crisis. The AAR seems to devote about seven pages of its testimony to tell you why most of the measures in the bill shouldn't be adopted, yet they claim that flexibility is their goal and safety is their objective but do not see any value, from what I can tell at least--I tried to read it carefully--in moving forward with a legislative measure that attempts to address fatigue in a responsible way. We wonder why the railroad CEOs and the senior management do not understand the point that it is not good business to run a company with fatigued workers, especially in a business like railroading that clearly affects public safety. Clearly, Congress has the responsibility to act on the fatigue concerns being raised by the operating unions and by the signalmen union, which we will hear from momentarily, before yet another accident results in this Country from sleep- deprived employees. Fourth, training is sorely lacking in the rail industry, and Congress must speak forcefully on this safety issue. It is appalling that so many workers are receiving such substandard training in an industry that prides itself on running 24/7, a safe, state of the art rail system. It is equally appalling to read the rail lobby's response to the training requirements in H.R. 2095. They are ``redundant'' and unnecessary. The workers are telling me that they are not receiving the kind of training they need and that there is a brain drain going on among the workforce because veteran employees, which are more and more relied on to train the younger workers in the workforce, are retiring and we are losing a lot of institutional knowledge. So the recurrent training portion of a training regime is much needed. Moreover, since the September 11th attacks, I have testified probably a dozen times since that horrific day, calling on Congress to require true mandatory training for rail workers in this industry in dealing with the security risk that we now face in this Country as a result of 9/11. I think it is inexcusable that so many of the workers in this industry are not being trained for security risks. Fifth, Congress does need to beef up the Federal rail inspector force. One of the facts that was left out in the exchange with the panel about hiring more inspectors and about the levying of fines is that the average fine is $39.00 across the whole rail industry which is less than a parking ticket in the District of Columbia, and a parking ticket doesn't risk anybody's life. So I think there needs to be serious consideration to dealing with that fact. You have got to create the right incentives for railroads to operate safely, and a rule infraction shouldn't just cost $39.00. Let me provide some focused discussion on the whistleblower issue as well because we think workers continue to routinely face management intimidation and harassment. For too long we have seen reports about the culture of intimidation and harassment that is pervasive in the industry. When faced with an injury or safety or security risk, rail workers are being discouraged by managers. This is not hyperbole. It is happening. I reject categorically the industry's claim that there is no compelling case for enhancing whistleblower protections. One documented case after another show a management culture of harassing and intimidating and suppressing employees on the job when they are trying to report injuries and other events, and they use heavy-handed tactics, often illegal, to disguise the facts. The stories are appalling. We have cases that we have documented and that have been given to this Committee, one after another of management obsessed with making medical incidents and injuries non-reportable, even pushing them not to take prescription drugs when they have been told they need prescription drugs, delaying medical treatment for injured employees, underreporting injuries, forcing employees to wait often two hours for a supervisor to arrive at an accident scene on the job before that person can be transported for medical treatment. Just this morning, I read about a case where an employee with a cut in his back requiring stitches, due to company policy, was forced to wait for a supervisor to drive 89 miles from a different part of Michigan to that location before he could leave to receive medical attention. This is just plain wrong, and I don't really understand how the AAR and its member carriers can defend this kind of regime. The Committee must act before this culture results in silencing workers who would otherwise speak out about safety hazards and, God forbid, pointing out about safety and security hazards in the event of a terrorist wanting to do harm on our Nation's railroads. Section 301 sends a very clear message, and I will wrap up, to management: If you suppress accident and injury report, if you willfully harass and intimidate employees, if you deploy policies designed to suppress rather than foster an environment in which workers can speak out about safety and security risks or report and get treatment for injuries, you will be held responsible and you will pay a price. We think that is the right thing to do. We urge the Committee to move on this legislation, and we hope to have an opportunity to work with you on any questions that you have and on any further enhancements in this bill that we can be of assistance on. Thank you. Mr. Oberstar. Thank you very much, Mr. Wytkind, for your testimony. Mr. Tolman? Mr. Tolman. Good afternoon, Mr. Chairman, Ranking Member Shuster and Congresswoman Napolitano. On behalf of the Brotherhood of Maintenance of Way Employees, the Brotherhood of Locomotive Engineers and Trainmen and the Teamsters Rail Conference as well as my colleague here with the United Transportation Union, with whom the Rail Conference has submitted extensive testimony, I want to begin by also thanking the Committee for addressing many issues in this legislation that are of vital importance to our members. I especially want to thank Chairman Oberstar and Chairwoman Brown for introducing this legislation and bringing these issues forward after 13 years. This is the most significant piece of rail legislation in more than a decade. I want to first address the hours of service issue which we are pleased to see bipartisan support to resolve these outstanding issues and the hours of service issues legislatively rather than in regulatory process. We fully support the changes made in Chairman Oberstar's and Chairwoman Brown's legislation, H.R. 2095. By amending the Hours of Service Act, this bill addresses one of the most pressing issues in our industry, and that is fatigue. There are three factors that we believe are responsible for the vast majority of operating crew fatigue. One is the uncertainty that crews face with respect to advance warning when they will be required to work. The approach to this problem is to amend the Hours of Service Act and to require a minimum time off duty to be undisturbed, and we fully support this approach. A second major factor that aggravates fatigue is the industry's manipulation of the Hours of Service Act by leaving crews stranded by unconscionable lengths of time as a result of the Supreme Court's 1996 limbo time decision. On February 13th of this year, we presented detailed testimony on this subject, so I won't burden the proceedings by repeating those facts. It is clear that our concerns have been taken into consideration in a bipartisan way which we deeply appreciate. A third major factor is work time. There is a bipartisan proposal to reduce the threshold for requiring 10 hours off duty which we support and applaud. We also support the notion that crews should have mandatory time off after performing covered service for seven or eight consecutive days. On behalf of the BMWED members of the Rail Conference, we wish to express our appreciation and strong support for the proposed amendment concerning employee sleeping quarters. We also support the hours of service amendments proposed by the Chairman for signaling and dispatching service employees and urge their adoption. Also, we would like to applaud the inclusion of strong whistleblower protections in H.R. 2095. The Teamster Rail Conference supports the inclusion of whistleblower protection in this legislation. Railroad workers cannot and should not be subject to dismissal when they provide information regarding unsafe issues to the government agencies responsible for promoting safety and enforcing safety laws and regulations. Strong whistleblower protections for rail workers are needed to stop employers from harassing and intimidating employees who speak out about safety and security issues. I can tell you that every Class I railroad has been reported for engaging in harassment. In testimony, we cite a report done by FRA entitled ``An Examination of Railroad Yard Worker Safety'' done in July of 2002 which talks about the commonplace culture in the railroad industry of harassment and intimidation. The incidents, frankly, involve attempts by management to have crews skirt the Federal safety regulations, often rudely berating an engineer or trainman who objects to train makeup by telling the crew to shut up and get your train out of town. We strongly support those provisions in H.R. 2095 that address several recommendations made by the National Transportation Safety Board in the wake of the tragic accident of Graniteville, South Carolina, which resulted in the death of a BLET member, Chris Seeling, and eight others when a tank car containing chlorine was breached, releasing a deadly cloud of chorine gas. The NTSB has been concerned since at least 1974 about the issue of non-signaled track or dark territory. The Graniteville accident was caused by a misaligned switch in dark territory. Forty percent of our Nation's railroads are in dark territory without switch position detectors to help prevent accidents like Graniteville. Finally, one of the most outrageous abuses that occur in the rail industry is the interference by carriers in the medical care of injured workers. This outrageous behavior is meant to discourage injured workers from reporting their injuries and trying to recover damages caused by carrier negligence. H.R. 2095 outlaws the interference, and we fully support this provision. Once again, Mr. Chairman, thank you for the opportunity, and I will be willing to answer any questions. Mr. Oberstar. Thank you very much, Mr. Tolman, for your testimony. Mr. Brunkenhoefer? Mr. Brunkenhoefer. Yes, sir. I had always thought that I would be responsible for protecting my members sometimes from themselves because they are not trained, some of the times from management. I have an instance here where I think is an example of the necessity to have some regulation in training. Recently in a hump yard in east St. Louis which is a very busy location on the railroad, we had an employee who said he did not feel he was comfortable operating remote control and told the supervisor. The supervisor disregarded his concern and told him to use the equipment and go to work. Then he assigns a student or a trainee for him to teach how to operate the equipment. Then in the process of that day, they put two trains together and caused a collision. Now what kind of supervisor would do this? The trainee's father. Now if the father won't protect him, then I think that we do have a responsibility to appeal to other people to say let us don't let these inexperienced people who don't know what they are doing out there, injuring themselves and causing accidents. If that wasn't bad enough, then after the unfortunate accident, the supervisor had both crews in and told them that there better not be any injuries involved or they would lose their jobs. I have an instance here of limbo time. A crew in Iowa dies on the Hours of Service Act. That means they have to stop working after 12 hours. The train master gets a crew from the terminal, brings them out to the train that has died and replaces the crew. Then the train master tells the crew that is new that the conductor of the new crew is not to ride the train. He is to drive the crew that has already been on duty 12 hours, so that the engineer is now operating alone. But if that is not bad enough, he is told to stop at the stations that the train would still have switching to do, park the car with the crew in the car and go into the yard, do the switching. When they were completing with the switching of that terminal, to get back in the car, go to the next station and switch the cars because the crew was on limbo time and it didn't matter. Harassment and intimidation, it is, I think the word is endemic throughout the industry. It is not so much the protection of being able to involve the government. That is good, but the language that you have needs to be strengthened. Injuries are not reported. One of the things you brought up, Mr. Chairman, involved the FAA in many instances and how thorough investigations have shown that the information was not correct. Our injury reports start with the employee who fills out a form who hands it to a supervisor who fills out a form and that then becomes the basis for the data that at the Federal Railroad Administration. So if the supervisor can convince the employee not to make the report, then it didn't happen. We have enormous amount of information of where if you fill that form out, you will be disciplined. You will be disciplined. It is real. What I have here is a deposition. I would prefer that we not give this to the Committee. I am not out to attack anybody. I am out to report instances that have taken place. This is an attorney asking a train master: Have you ever been to a hospital as a train master and spoken with an injured worker's doctor for the purpose of trying to convince him not to prescribe medication? There is an objection by the attorney. At the end of the objection, the train master said: Yes. Why? You did that so it wouldn't be an FRA reportable, didn't you? The answer was yes. Okay, the company's attorney is representing the employee, I mean representing the train master in the deposition. This employee that was a supervisor wasn't fired, wasn't demoted. He was promoted and is now the manager of safety of that Class I railroad. They have a total disregarded interest about let us play it the right way. We need to prevent the carriers from using a threat of discipline to discourage people from reporting injuries. We need to stop the harassment and intimidation of employees after they are injured. An employee should not be required to return from the emergency room to go back into the yard under medication and painful to reenact the accident, so that the supervisor can say: You are lying because it couldn't have happened that way. You are not doing it as you have described to me, and so I am going to remove you from service or hold you out of service because while you were reenacting it, it is not coming out the same way as you told us. Can you imagine we are bringing people from hospitals to railroad yards to reenact accidents? Employees are in pain. They are under medication. They shouldn't be required to do this. Every accident that we have that results in a carrier using discipline should be investigated by the Federal Railroad Administration to assure that that carrier is not using discipline or the threat of discipline to prevent reporting. To change the subject, in the training section, it is very well written, and its says that each craft should be trained. We need to add the word class. Some of the crafts are described as classes. We have a class of engine service that has the craft of engineer. We have a class of train service that has a conductor, a brakeman and a switchman. So in order that we don't come back here in a few years and try to get an amendment, it would be easier to put into the training and qualifications point, craft and class. Ms. Napolitano hit on something. We need to allow the States to have a freer hand. The Federal Railroad Administration says that when we get local safety hazards relieved. Right up I-5 in this little town called Dunsmuir, there was an accident many years ago, about a half a dozen, of where there was a derailment. The city decided that they wanted to slow the trains down around a specific curve. So the California PUC passed one regulation about one curve, one curve. This railroad took the PUC to court and had it ruled it was preempted by the Federal Railroad Administration, that the city or the State could not do this because there were other curves in the United States just like this one. We also look at 2095 as not the final word on fatigue. It is the first word on fatigue. It is the start, and we have to start some place. In the document as drafted, we have in there language that will allow for rulemaking to build on the fatigue situation. One quick caveat off to the side, one of the questions came up, and I think, Mr. Shuster, you talked about the marketplace and PTC. I don't want to spend a lot of time there, but I hope whatever comes down is common. The engineer goes on duty on the Burlington Northern and goes 50 miles, goes onto the Union Pacific for 40 miles, goes back onto the Burlington Northern and may end up on the CSX. You will have the operator continually change from one program or one I like this because it is mine to the next one I like this because it is mine. Then they have to make the decisions and calculations they have to do in safety, I think is wrong. So I hope whatever comes out in PTC that it will be something that will be interchangeable on all railroads. Also, both of you have been blessed with excellent staff people. I have enjoyed working with them. They don't always agree with me. I think something needs to be done about that immediately. They keep telling me that they have to do what you want, but we have been very blessed to work with both of them. Thank you. Mr. Oberstar. Thank you, Mr. Brunkenhoefer. Dan Pickett? Mr. Pickett. Thank you, Mr. Chairman. I would like to thank the Chairman and the Members of the Committee for introducing H.R. 2095 and for holding this hearing. Railroad signalmen install, test and maintain and repair the signal systems that the railroads utilize to direct train movements. Signalmen also install and maintain grade crossing signal systems used at highway rail grade crossings. The BRS has always made safety our number one priority. A safe rail network is an efficient network, and this bill is the first step to improving rail safety and therefore improving the efficiency of the railroad. For too long, fatigue-related errors in the rail industries have contributed to rail worker injuries and death. The fatigue management plans proposed in this bill will correct many of those issues that lead to our employees being so fatigued. The reforms to the Hours of Service Act contained in this bill long overdue. Increasing consecutive hours of rest from eight to ten hours has long been advocated by the BRS. This bill prohibits railroad employers from communicating with signal employees during their rest time, something that happens all too numerous times today. Doing away with the limbo time and having a straight-up hours of service law is long overdue. The bill will also place all workers doing signal work under the Hours of Service Act. This has long been needed. Today, the BRS has long advocated the need for a required toll free number at grade crossings. The establishment of a toll free notification number will allow the public to provide more timely reports of highway rail grade crossing signal malfunctions. While there has been much advancement in the signal system technology at highway rail grade crossings, even the most high tech equipment is rendered useless if the traveling public does not obey the warnings they receive. Enforcement of laws and penalties that come from noncompliance are critical in order to increase safety at highway rail grade crossings. By conducting audits in the timeframes contained within this legislation, the FRA and the industry can ensure that they are getting all of the correct data relating to highway rail grade crossing accidents and incidents. It is and has been the position of the BRS that the FRA is understaffed. This bill will increase the number of FRA inspectors that are needed to ensure proper accident/incident reporting. This bill provides language that will require within 12 months the railroad develop and submit a plan to the Secretary, implementing positive train control systems by December 31st, 2014. The BRS concurs with the requirements of this section, and also I would like to add that we also concur with what Brunkenhoefer said about having a system that works over the entire railroad rather than one railroad versus another. The BRS agrees with the provisions contained in Title VI Miscellaneous, Section 602 Warning in Non-Signaled Territory. The hardware and software is available today to prevent many, if not all, of the accidents and incidents involving misaligned switches in non-signaled territory. As railroads continue to increase capacity, these types of accidents will likely increase if we do not take any action. As the complexity of all railroad equipment increases, it is important to make sure that all employees have the necessary training to perform their duties. The BRS praises the provisions regarding minimum training standards in this bill. The bill provides language to ensure that all injured railroad employees get the proper medical treatment for any on- job injury. An injured employee should not have to worry about reporting an injury, let alone getting the proper treatment for that injury. Mr. Chairman, H.R. 2095 is a giant step toward improving safety in the Nation's railroads. This bill addresses many issues very important to railroad signalmen. This bill, if passed into law, will improve rail safety across our Nation's railroads. On behalf of the Brotherhood of Railroad Signalmen, I congratulate all who helped to craft this bill. I appreciate the opportunity to testify before you today, and at this time I will be glad to answer any questions. Mr. Oberstar. Thank you very much, Mr. Pickett. We greatly appreciate your testimony. Mr. Oberstar. Mr. Durbin? Mr. Durbin. Thank you, Mr. Chairman. I am Marty Durbin with the American Chemistry Council. Our members are committed to the safe movement of our products, and we believe H.R. 2095 provides an important framework to improve safety performance for transporting these critical materials. In particular, we support provisions of the bill that seek to implement the NTSB recommendations. The business of chemistry depends on the Nation's railroads to deliver about 170 million tons of products each year, accounting for more than $5 billion in annual railroad freight revenues, making chemicals the second largest railroad commodity. Sound engineering and common sense teach us that for rail transportation, hazmat safety is the result of many interrelated factors. The avoidance of accidents and accidental releases of hazardous materials is a primary focus for our member companies, the broader chemistry sector, our transportation partners and emergency responders. Together, we have invested billions of dollars in training, systems, technology and tank car safety. And H.R. 2095 goes even further by requiring such measures as positive train control, warnings in non-signaled territory and enhanced track inspection. These provisions in addition to the bill's treatment of employee fatigue will significantly enhance rail safety. Safety performance improvements for hazmat rail shipments is a collaborative process that must involve all relevant stakeholders including rail carriers, shippers, tank car suppliers and government. The ACC is pleased to hold a seat on the Tank Car Committee of the Association of American Railroads. We have long found the committee to be an effective forum for cooperative risk management. We are concerned, however, that recent actions by our rail partners could jeopardize that history of successful collaboration. Following last year's controversial decision by AAR to approve a new tank car design which was opposed by all the shipper representatives on the committee, FRA expressed its concern that AAR had abandoned a consensus process that ``yielded so many significant improvements in the railroad transportation of hazardous materials.'' We were grateful for FRA's leadership to bring all stakeholders back together under a collaborative approach toward a new tank car design. AAR wisely delayed implementation of its decision thereby allowing tank car design to be considered through a Federal rulemaking which is progressing on a positive path. But this collaboration is in jeopardy. For example, under the guise of improving safety, one railroad has announced that it will revise its tariffs to encourage shippers to use a tank car that is not yet available. We are also disappointed that AAR is now pursuing tank car designs for additional chemical products instead of working through the rulemaking process. Now, in addition, we are aware that the railroads propose to limit their liability resulting from hazmat incidents. While it is in nobody's interest for railroads to be put out of business due to unwarranted lawsuits, we have serious concerns with the proposal. ACC works with many organizations to help restore fairness to our civil justice system, but we don't believe a party should be relieved of appropriate liability for harms it has caused. Railroads, as well as other stakeholders, should continue to bear liability for their own conduct. A system that shifts liability from the party at fault to other parties serves as a disincentive to improve safety. So any decision to limit rail hazmat liability, should Congress find such a major change to be in the public interest, must involve input of all stakeholders. If all parties were to agree that some limits need to placed on liability, any resulting proposal must clearly distinguish between accidents and gross negligence and must be strongly tied to ongoing safety performance improvements. Therefore, ACC cannot support the railroads' narrow one-sided liability proposal, and I know other rail customer groups share our concern and will be submitting their own statements. An important related matter is the common carrier obligation under which railroads are required to transport commodities for their customers. The common carrier obligation is the framework on which the entire national railroad transportation system was founded. Railroads are allowed to operate in the public interest because the Nation depends on safe and reliable delivery of a wide range of products on which we all depend. ACC and its members recognize that safety requires effective collaboration and, despite the concerns I have cited today, I am also pleased to say that we have a long history of partnership with rail carriers on safety programs. One example is TRANSCAER which helps communities prepare for and respond to possible hazmat transportation incidents. In addition, ACC's CHEMTREC program, now in its 36th year, shares expertise and experience with emergency responders. Our emergency center in Rosslyn is a 24/7 reminder of our commitment to enhance the safety of every hazmat shipment. We look forward to working closely with this Committee, the Congress and the Agency and other stakeholders to enhance the safety of rail transportation. Thank you for allowing the ACC to present its views, and I am glad to answer questions. Mr. Oberstar. We are grateful for your testimony. Thank you very much for being here with us. Mr. Hamberger, I wrote down with interest your comment about switch out of alignment. You said there were only three in 2006. Mr. Hamberger. There were more switches out of alignment that occurred when the switching itself was occurring at the customer's facility or going into the customer's facility. What we tried to do was to take a look at those accident codes in the FRA database in dark territory and then try to address the situation where a main line train goes into the siding and then does not realign the switch, so that the next main line train would continue on the main line but instead is shunted into the siding. I said we believe that that is what this provision is meant to address, that kind of accident. If that is what we are talking about, we have identified three. Mr. Oberstar. The FRA, from their own database, which I asked to be taken down from the infamous internet as you can get every piece of information in the world apparently, they have a very interesting printout which I used in preparing this legislation. In descending order of frequency, the second most frequent incident is switch improperly aligned, and they list 136. Mr. Hamberger. Yes, sir. But, as I say, we tried to get behind that number and those often times are when the work is being done. Mr. Oberstar. You want that number or that category differentiated according to various listings that you just cited a moment ago. Mr. Hamberger. To see whether or not lining up the switch would have prevented that accident, correct. Mr. Oberstar. Mr. Pickett, do you have any comment? You are a signalman. Mr. Pickett. We don't keep on dark territory. We don't have any information on dark territory. We are not involved other than a grade crossing in dark territory. Mr. Oberstar. Okay. There also is on page 18 of your testimony, a comment about Section 606 of our bill. Your quote: ``It appears to mandate that railroads transport injured workers to a hospital of the worker's choosing with no limitations on that choice,'' so forth and so on and then says ``A railroad should be able to override the health care provider.'' What do you mean override the health care provider? That is an intriguing comment. Mr. Hamberger. As I was trying to point out, there may be occasions where a doctor says to an employee, you are cleared to go back to work, but that employee is on medication that causes drowsiness. In that case, the employee should not be. Mr. Oberstar. You would say the railroads should override the decision to return to work, not override the medication. Mr. Hamberger. That is correct, yes, sir. Mr. Oberstar. That is not clear from your statement. Mr. Hamberger. I apologize for that. Mr. Wytkind. Mr. Chairman, it is also not happening that way. The situation that Mr. Hamberger is addressing, it is not when it is being used. It is being used to override doctors. It is being used to force employees to say no, for example, to prescription drugs, so that it is not reportable. So while it may be a tool that they want to use to help the worker not have to come back to work, it is not a tool they are using for that purpose. Mr. Oberstar. I specifically reference that. Mr. Hamberger, do you want to respond? What we are concerned about is that the railroads, there have been reports that they have actually intervened in the choice of medication. Mr. Hamberger. Well, I am sitting here, listening to these kinds of reports as well, and I have to say that on behalf of this industry, and I will not be obfuscatory about it. I will say straightforwardly, I reject the idea that there is a culture, an endemic culture of intimidation and harassment, and I say very clearly right here that it is not proper and appropriate to intimidate and harass. It is not proper and appropriate to stop an employee from getting appropriate medical care, and if it does happen it should be punished. Mr. Oberstar. Since your statement says the provision appears to prohibit railroads from overriding the treatment plan and appears to mandate. Suppose you suggest language to us that would protect those concerns. Mr. Hamberger. Thank you. Mr. Oberstar. But without overreaching. Mr. Hamberger. Yes, sir. Mr. Oberstar. I would like to see what your comment would be. Mr. Hamberger. Yes, sir. Thank you. Thank you very much. Mr. Oberstar. In limbo time, what are train crews supposed to do? Now I raise that question, and I do that against the backdrop of the hours of service legislation that we had several years ago and then in the surface transportation bill when a wide range of trucking interests got engaged in this, became engaged in this issue, including the electric power industry and the movie industry. They said, oh, my goodness, we have these folks sitting around here for 14 hours. They got up at 7:00. They are on duty at 7:00 in the morning. They have got to drive all the equipment to the site of the movie shoot and unload the truck. Then they have nothing else to do for 12 hours until they load the truck up again, and then they can drive back. We are not imposing any burden on them. I would call that limbo time. I lost that battle to the movie industry because every Member of Congress thought there was a movie in their back yard or in their district. They thought this would be just fine to have movies made in their districts, and they voted overwhelmingly, 300 something to whatever. We lost that battle, but I am not going to lose it again. [Laughter.] Mr. Oberstar. As I said earlier, if it is good enough for the Pope to rescind limbo, by golly, then we can deal with it here in this category. Tell me, Mr. Tolman, what is your experience? Mr. Wytkind, you cross over a lot of transportation venues including railroads. Mr. Tolman. Mr. Chairman, crews are supposed to remain vigilant and watch out for mechanical failure as well as safety of the train while they are in limbo time. I have traveled across the Nation in the last six months and talked to various members throughout the railroad industry. It is the number one issue of abuse in the industry is limbo time. You know we submitted recent testimony, and we submitted crews being held out of service. Three-thousand three-hundred and thirty-five [subsequently altered by witness to read: three hundred thirty-five thousand] crews were measured over the past six years, 2001 to 2006, and in that data that we received, I would say that part of limbo time is now part of their scheduling. It would suggest that the part of limbo time is part of their scheduling. I quote. In their testimony, it says intractable scheduling problems if you deal with limbo time. I beg to differ. I mean I sincerely beg to differ because they have built this into scheduling. If we took those numbers that I just gave to you, 150 crews exceeded the hours of service by a minimum of two hours every day for 6 years, every day for 6 years. One other thing I would like to comment is on the return to work problem of a person that may be on some medical prescription drug. Part 219 of the Federal Railroad Administration regulations would not allow an employee to go back to work if they were under some type of prescription drug. That is covered. That doesn't happen, shouldn't happen and wouldn't in the industry. One other thing I would like to touch base on is the switching issue. I mean one accident in my eyes is one too many, and I am sure that everybody in this room could agree with that. But, God forbid, if that accident in Graniteville happened 12 hours previously with an elementary school 500 yards from there. I mean God forbid. We wouldn't be sitting here, questioning whether we should put targets there. Thank you. Mr. Oberstar. Mr. Wytkind? Mr. Wytkind. Mr. Chairman, the only thing I would add is I represent 32 unions in the transportation sector in five modes, and the gaming of hours of service, the gaming of how you schedule workers, the ability to extract every possible ounce out of the workers is something that is pervasive throughout the transportation industry. The problems we have in the railroad industry are severe. This whole limbo time debate, we ought to end this debate. The workers should be protected from the obvious safety hazards that that issue among many others under the fatigue and hours of service debate brings to the industry. I don't really understand how the industry can basically defend this at a safety hearing. It is one thing to argue that they need flexibility and they need to run 24/7 railroads. We are not disputing the fact that they run large nationwide 24 hour operations, but there is nothing incompatible about flexibility and efficiency and safety on the other hand. I think you can do both, and it can be achieved, and the measures in your legislation ought to be enacted. Mr. Oberstar. Mr. Shuster? Mr. Shuster. Thank you, Mr. Chairman. The one thing that I have learned since coming to this Subcommittee is that the railroad companies and labor and the unions are similar to Republicans and Democrats. You are not all one monolithic group. You don't necessarily all speak with one voice. I think it is important to find compromise here and come together, whether we are talking about, well, I know right now presently you have got about 50 percent of the workforce has agreed to a labor contract and 50 percent are still negotiating. We have got one rail company that isn't real hot on positive train control and another that wants it. So within both sides of this issue, people are disagreeing. I think that there is some compromise here, and I think that talking about limbo time and worker safety and hours of service. I looked at what the Chairman's bill and Ms. Brown's bill says, and quite frankly I think my numbers, according to what I see but again not necessarily the way you view it, is it is safer. I am giving you more rest time than the Chairman's bill on the same amount of work. But that being said, safety is critical to all of us. I think everybody in this room, whether it is the folks in the rail industry, the companies, the AAR, labor unions, myself who drives on roads, my wife and kids who drive on roads and cross railroad tracks. We have got to make sure that we are as safe as we possibly can be. I will ask it to Mr. Wytkind and Mr. Tolman and Mr. Broken Rail. I don't think I can still pronounce your name. Besides, I want to know what you are running for as you are complimenting both our staffs. And Mr. Pickett. Mr. Brunkenhoefer. I am trying to borrow money. [Laughter.] Mr. Shuster. The Chairman's bill is 12 hours of work, 10 hours of rest. Mine, that we have introduced or we put out there at least, is 12 hours of work, 14 hours of rest. Can you comment on that? What is the best mode? Going back to, which we are going to get to that, the FRA, that you have said is a starting point for fatigue study and which I want to talk about that. But tell me, based upon your view, how many hours of work and how many hours of rest, uninterrupted rest, is the optimal? Mr. Brunkenhoefer. Most of America works 21 and three- quarters days a month, 22 days a month. Under 272 hours in a 22 day month, that is 12 hours and 30 minutes. We already have a 12 hour law. So we start off with that number of the premise that we are going to have a built-in 30 minutes a day or we are going to have to work more than 5 days a week. And so, I think that the cumulative time should be significantly lower than the 272. As far as the 14 hours, I know that Altoona is a delightful city. I have visited it. But if you live in Tucson, you may not be considered getting rest if you are spending 14 hours in Yuma, that when a crew gets to the other end of the railroad, they strongly want to go home to be with their wives and families. What the 14 hours appears to do is to punish the crew for a mistake that management made of being unable to run the train. It would probably cause them to lose additional turns in a month by the way they turn. They want their time at home, not at the other end of the railroad. So I think that it is well intentioned, but if you are 14 hours stuck at the wrong place, it is not going to release the stress that you have to deal with on a daily basis. Mr. Shuster. And 10 hours is better, is a shorter period of time? It allows them to get home. Is that what you are saying? Mr. Tolman. I guess I will try to answer it. I think the most important thing in the industry, and we have heard various testimony, is that there is no one silver bullet that resolves the fatigue issue in most modes. But in my eyes there is one silver bullet, and it is in the Chairman's bill, and that is elimination of limbo time. That addresses the primary issue. Fourteen versus ten, I think Mr. Brunkenhoefer answered it correct, that our members and anybody in their right mind don't want to lay over for 14 hours at an away from home terminal versus being home in their own bed. Another way to look at it is if you give the opportunity of employee empowerment, and that would be giving the employees-- trainmen, conductors, engineers--the opportunity to take leave when they are exhausted, when their rest is up, that would be the right approach. Fourteen versus ten, I think ten is the answer. I embrace the Chairman's legislation. Mr. Shuster. Because, again, if you are in Altoona and you are going from Harrisburg to Pittsburgh, those runs are a lot shorter than if you are out west somewhere. So no matter what the time is, you can't necessarily guarantee, especially when you have got these long, long runs, that somebody is going to be in the right place at the right time. Truckers have that problem. Airline pilots have that problem. Mr. Pickett. Mr. Shuster, if I could address. Mr. Shuster. Yes, sir. Mr. Pickett. For the signalmen, we have got it completely different. We could go home at 3:00 this afternoon if that completes our shift. We are on call 24/7. Under the current regs, what Tolman said is correct. If we had the opportunity to say, hey, I can't go out now. But we could possibly be called out at 11:00 tonight if it was at 3:00 we finished our shift, completely rested and ready for 12 more hours in 24 hours. There is no way. Also, you could even get two or three calls during that night if you were called out right after your shift as long as you didn't exceed the four hours and clear trouble, and then you would only have the eight hours rest. So we see a big advantage in the 10 hours. We would like to see more done on the fact that let the individual be empowered to mark off without repercussion of marking off when he feels that he is tired. Mr. Shuster. Limbo time, we have it down to propose one hour of limbo time in case things occur. A tire gets flat on a van on the way home, things like that happen, and that is unforeseen things. That one hour limbo time, that is something that is going to cause fatigue. It is going to cause great safety concerns. Yes, Mr. Tolman. Mr. Tolman. That is, I guess, a misuse of limbo time. Right now, the FRA has a regulation that provides for relief on certain issues that are under the definition of an emergency. It is kind of misleading testimony that would say that limbo time won't address the Hurricane Katrina. There is already a change in the law that would address Hurricane Katrina, that the FRA can immediately amend the regs in order to address the Hurricane Katrina issues. It is not correct use. Obviously, if there is an act of God_a hurricane, tornado, whatever_there is a regulation that provides for emergency relief on the hours of service. Mr. Hamberger. Since I have been called misleading, if I might just jump in there, Mr. Shuster. Mr. Shuster. Sure. Mr. Hamberger. It is unclear to me, and if that is what the Chairman means and if that is the interpretation of Mr. Tolman. It is unclear based on the draft legislation whether the exercise of that kind of regulatory authority by the FRA would still exist under this legislation. It is a key matter that we need to continue to discuss as we go forward. Mr. Shuster. Rest is the key. Rest, uninterrupted rest, that is the key, right. Everybody agrees on that. Well, then it becomes a question, and I said this before. How are we going to ensure that that guy or that gal goes home and actually rests for 10 hours? What are we prepared to do? Last time I talked about the sleep police. Are we going to have bed checks? It becomes a concern. If getting that rest is so critical for improving safety, then how are we going to ensure? How are you going to ensure that they are going to take that rest? I know people out there who have second jobs at part time. Is that something that we say because it is such a great concern, because safety is hand, that we deny people to be able to have a second job? Is that something that you are prepared to put forward? How do you ensure they are going to get that rest? Mr. Brunkenhoefer. First, it is never going to happen if we don't give them the chance. And so, if we build a system that says you can't even a chance at getting your rest. Mr. Shuster. Right, that is what this is all about. Mr. Brunkenhoefer. Then it doesn't matter what your personal responsibility is. As Mrs. Napolitano's district is where you have got the backup on I-5 and you are two hours getting home and two hours getting back to work and you have eight hours off and you are supposed to eat, sleep and bathe in the four hours that are left. It doesn't matter what the personal provides. Mr. Shuster. But that is what this is all about. We are going to move forward. So what happens if we are able to craft a deal? How do we ensure that those folks are getting the proper rest? Mr. Brunkenhoefer. There is either a longer notification that says 10 hours from now you are going on duty, and I don't think that is unreasonable, or that people have assigned starting times and know when you are going to go to work. So what we live in is that we never know. If I call the crew dispatcher and I call up and I say, when does it look like I am going to out. They say, Mr. Brunkenhoefer, it looks like you are going to get out in eight hours from now. That means you are going to get out at 2:00 a.m. So I better hurry up and go to bed. The phone don't ring at 2:00 a.m. The phone don't ring 4:00, 6:00, 8:00, 12:00. Now I have worn out the bed. I am going to wake up, okay. I may be awake for 10 or 12 hours now that the phone call comes. Then I am 12 hours on duty. Then I build a limbo time on that, and then I go out and get on I-5 or the Pennsylvania Turnpike after I have been up 25 or 30 hours. And so, eventually at some portion out there, maybe that is something the positive train control will do, is we will have a better prediction or a better window to get to the solution. Mr. Shuster. That is going to ensure that everybody gets eight hours of sleep? Mr. Brunkenhoefer. No. It is like today you know that you are going to probably be back here tomorrow morning at 8:00 a.m. So you have an oportunity to choose if you want to go to sleep at 9:00, 10:00, 11:00 or stay out all night. Mr. Shuster. That is the point I am trying to make. If somebody decides that they are going to stay out all night or work a second job or do whatever, that is going to create a safety problem also. Look, I have put forward a proposal that I think is decent. I have heard a couple of people say that is reasonable. There needs to be some compromise. I have said that from the beginning. But how do we ensure that people are going to be responsible?[AFTER 6:00 P.M.] Mr. Brunkenhoefer. First of all, you have got to give them the opportunity. Mr. Shuster. That is what we are trying to do. Mr. Wytkind. Mr. Shuster, if I could just for a minute, I don't think you can make sure of anything. I remember in the debate about the trucking industry's rewrite of the hours of service was that it got mired in litigation and other public disputes. The solution to the rewrite of the trucking hours of service was not to let some of corporate America, which they did attempt to do including Wal- Mart, to allow drivers to work longer hours behind the wheels which was certainly not conducive to creating the environment that you are referring to which is trying to make sure that workers get their rest period. I think Mr. Brunkenhoefer and Mr. Tolman have both raised some very important points in their answers which is if you create an environment where you are guaranteed a certain amount of rest time, where you are guaranteed a cap on your number of hours, where you eliminate limbo time, where you eliminate the ability to call someone three hours into their sleep like they do regularly, those are the environments you can create to hopefully eliminate many of the fatigue problems in the industry. You are not going to eliminate it altogether, and you are not going to regulate behavior. I can't promise you today that if you enact this bill tomorrow, every rail worker in this Country is going to show up to work 100 percent rested. There is no way you could ever do that. But what I think you can do is create an environment that gives us a chance to have these workers get adequate rest at home, so when they show up at work, it is reliable time. The call comes at the right time. When they are told it is 2:00 a.m., it is 2:00 a.m., not 12:00 p.m. the next day. I think those are issues that need to be dealt with both in the regulatory process and in the legislative process and in the way that labor and management conduct their affairs with one another. Mr. Shuster. Sure. Labor and management, that brings up another point. When you start to talk about allowing the Federal Railroad Administration to basically have an open checkbook as we talked about this is a starting point on fatigue studies. My concern is we are going to have a bureaucrat in Washington determining what should be happening in labor negotiations and with management as to who is working, what is the hours of service instead of just leaving it wide open to the Federal Rail Administrator to decide that he is going to change it, that he is going to increase it. Mr. Wytkind. Well, but that is not the point I am making. Mr. Tolman wants to respond. When I say labor and management, there is responsible behavior that management can have in the conduct of its affairs with its employees. That has nothing to do with collective bargaining. It has everything to do with responsibly running your company and making sure your workers aren't exposed to safety risks. My reference to labor and management has nothing to do with collective bargaining. I think this matter needs to be dealt with through public policy in the public policy arena because the carriers are not willing to do this without Congress telling them they shall. Mr. Shuster. That is what we have laid out to put it forward. Mr. Wytkind. Right. Mr. Shuster. Again, I want to come to some resolution, but at the same time I think you are absolutely right. You can't guarantee. You can't guarantee anything, whether if we set up a regimen of time and then who is going to make sure that everybody is doing the responsible thing, getting the proper rest. I guess that is my point. When we try to regulate or over-regulate, at the end of the day, it is not going to be perfect. It is not necessarily going to give us all the outcomes that we think it is. Mr. Hamberger. If I could just respond to something. I don't want to jump in here but if I could. Mr. Broken Rail mentioned that the employees are being punished for the mistakes management made. Management made no mistake when the hotbox detector goes off and that car has to be set out and they are out in the middle of, as he said, Yuma somewhere and it takes a while to get somebody out there to relieve that crew at the end of their 12 hours. But, yet, under the provision that would eliminate that, eliminate limbo time and make that an hours of service violation, that is a $100,000 fine because the hotbox detector went off. Somehow that doesn't seem quite equitable. There is no mistake that management made. The concern has got to be fatigue and sleep deprivation and sleep debt. That is why we are suggesting that when that does happen, that there be a 14 hour period, whether it is at Yuma where you don't want to be, as Mr. Broken Rail said, or you are home in Tucson, wherever it was. It is a 14 hour window where you can be given the opportunity, as they both just said. Set up the environment, as they both just called for, to have that rest. It is not a mistake management made. There are times that something happens. If they hadn't stopped and taken out that car that had the hotbox, there would have been an accident. Mr. Shuster. Thank you, Mr. Chairman. Mr. Oberstar. The gentleman has pursued a very important line of questioning. The people we are talking about here--locomotive engineers, signalmen, maintenance away personnel--are safety professionals. There are safety professionals on a flight deck in an aircraft. There are safety professionals in the cabin, the flight attendants. My father was chairman of the safety committee of the Godfrey underground mine for 26 years when he worked there. He worked rotating shifts. We didn't have a whole lot to live on, but he didn't take a second job. When he came home, he went to bed. He got rest because he knew he had to be on the job. And so, he was alert that fateful morning when the main tubers that the mining company insisted be put in the shaft where they were working, in the drift as they were called in the underground, and he heard the timbers cracking. He took his two partners and threw them out the mouth of the drift while the whole shaft collapsed in around him and stopped right here at his shoulders. Safety professionals don't risk their own lives. But I would suggest that in response to the gentleman's concern, that we include a provision in this legislation that would require rest counseling. Have counseling for workers. We are going to put this provision in. We are going to limit hours of service, and then let us make sure that everybody is covered by and gets some counseling. When you go home, you get some rest now. I don't think we have to counsel people to do that, but I think the gentleman's point about maybe there is some temptation to go take a second job. I think folks in this sector are pretty well paid. They don't need a second job, but there might be temptation to do that. Let us put a provision in there that requires it. Mrs. Napolitano? At this point, I am going to ask Mrs. Napolitano to take the Chair as I have another transportation commitment elsewhere. I regret to leave. But before I do, I just want to observe on the airbags. In the seventies, the National Highway Traffic Safety Administration issued a performance-based standard, not a technology-based standard. The companies went out and got the lowest cost airbags and installed them. Some of them were defective. Some were way overpowered. After hundreds of children were injured and a great many killed, Congress stepped in and said, fix this, and did by moderating and modulating the airbags for the individuals. Mr. Hamberger, the Association of American Railroads has on its web page that just came to my attention, commentary on not the subject of this hearing but the legislation I have introduced to deal with competition. It has a very intriguing character, and I just want to know which one of these I am. [Laughter.] Mr. Hamberger. I can't see it. There are a number of folks in town right now, Mr. Chairman, trying to drive support for that bill, and we felt it necessary to get our view out as well. Mr. Oberstar. Let us not call it reregulation. You call it whatever you want. It is your web site, and you can call it whatever you want, but this is extending the benefits of deregulation. Mr. Shuster. I think you are the guy on top there. Wasn't there one guy on top? Mr. Oberstar. The one guy on top there, yes, he has got his hand up in the air. Mrs. Napolitano. [Presiding.] Thank you, Mr. Chair. I believe it was my turn, so I will take it and then pass it on. I was listening with great intensity to some of the finer points brought out about the average fine for a railroad for certain infractions being as low as $39.00, and I am thinking that is an invitation to just pay the fine. There is a concern even in my district of the elected officials at the local level, that they feel there is just not enough emphasis being put on the seriousness of the infraction and how we are dealing with it or not dealing with it, I should say. That is just a statement that I thought I would make because that caught my ear. One of the things that I did find out when we were doing some of the research for the derailments within my jurisdiction and just outside my jurisdiction was that the accidents within the yard, confined within the rail yard, were not being reported, and that could be a cause for concern because some of those could conceivably have impact on whether the equipment is failing, on sleep deprivation, a number of other things, not just necessarily the fact that there have been accidents within the yard. I would hope that that is part of what we are going to start looking at is that we are honest in being able to report and being able to then to determine what it is that we need to do, whether it is training, counseling to the employees about sleeping, whatever it is. But then you have identified because in the end not only does the rail image suffer because of the derailments, but there are people's lives at stake besides the cargo that they are carrying. Rather than just arbitrarily say you are doing this wrong, let us work together to be able to find out how we can address this, so that we do address things that we know are happening and are not being taken care of. Training for supervisors, I am hearing. Well, personally, I had heard about the type of training some of the employees were not getting, but as I am listening to the testimony from some of the organizations, that the supervisors are giving instructions that might be contrary to the efforts being put forth by the railroad and saying we do not do this. Whether or not you have considered doing some training for the supervisors to ensure that whatever policy is out there, that it is carried out with the intent fully to not only protect the company but protect the employee and their integrity. Mr. Hamberger. Yes, Madam Chair, those kinds of training programs indeed do exist, and there are several different kinds of training out there, one of which Mr. Wytkind referred to in the security area. While we believe_and we have had this discussion before this Committee in the past_that we are indeed providing security training. It is a security training module put together by the National Transportation Institute of Rutgers University, approved by the Department of Homeland Security. There is a provision in the House-passed security bill that will mandate a training module, a training provision in security. So I am hoping that in future hearings we can have that one set aside. With respect to training for the individual job that an employee holds, those kinds of training modules, it is my understanding, for example, with the UTU that those are put together in conjunction with the unions to make sure that the training is accurate. For the BLE, it is a training program that the FRA, we have to submit to the FRA. So, yes, there is that kind of a commitment to training because, as you point out and Mr. Broken Rail pointed out, there is in fact a new level, a new wave of people coming into the industry. We have to make sure that they understand the safety rules. We have to make sure that they are trained. I think the fact that in 2006 that we had the lowest accident rate in history indicates that we must be doing the job right. Mrs. Napolitano. I am glad to hear that because at some of the hearings that we had in Los Angeles, it was brought to my attention that the extent of the training was limited to handing an employee a video or sitting them through to a video and giving them a booklet. The statement was made that you were lucky if you got a trained engineer to work with. This was something that kind of horrified me because that is putting a lot at stake, a lot. Mr. LaTourette? Mr. LaTourette. Thank you very much, Madam Chairwoman. I am sorry that the Chairman left, and I will tell him this personally. I hope we don't spend a lot of money in this bill on sleep counseling because anybody that doesn't belong to a fraternity that can't figure out that they need to get a good night's rest, I really think is a waste of time and exercise. I want to talk about an issue that came up a couple of weeks ago, and then I want to get to this issue of limbo time as well. Mr. Hamberger, I want to start with you and, Mr. Durbin, I don't want you to feel ignored down there, so I am going to include you as well. When we did the rail security bill of maybe a month ago that came out of Homeland Security, sort of air-dropped in that bill was a provision removing the Federal preemption for the Nation's railroads. My understanding is that it had something to do with Minot, North Dakota. We had a hearing on this last year. I don't think it had anything to do with Minot, North Dakota. I think it had to do with the American Association of Justice which used to be the American Trial Lawyers Association. Mr. Hamberger, I will start with you and just ask you what you think that removal of Federal preemption would do to affect the Nation's railroads, one, and if you can just tell us, give us a little update on where the Minot, North Dakota stuff is, litigation. Mr. Hamberger. Let me start with that update if I can, Mr. LaTourette. Indeed, there was an accident in Minot, North Dakota, in 2002, a derailment. An anhydrous ammonia tank car breached. One person was killed. Many were injured. The district court ruled that the FRA preemption prohibited a lawsuit from going forward. We believe that that should not be the case, that that was an improper assessment of what FRA preemption means. We have legislative language that we have presented to the Committee staff. We presented it to the Department of Homeland Security staff when we found about the amendment that was going to be on the floor at 2:00 in the afternoon. We found out about it at 9:00 that morning in the technical corrections amendment offered by the Chair. It was impossible at that point to get that accepted. We are talking to the Homeland Security conferees about taking language that will make sure that where there is a violation of the Federal Railroad Administration rules or guidance, that that does not extend to a preemption of being able to get into court. But what it does do is say that there will not be a patchwork quilt around the Country of various safety regulations, that there should in fact be because we are a network. I am pleased to say that many of the cases in Minot are being settled. The named case, in fact, settled last week. Negotiation are ongoing, and the circuit court was supposed to hold oral arguments next week. I believe that has been postponed. So I am hoping that that can be resolved and that the sympathy engendered and real sympathy for the citizens of Minot who were not given the opportunity to go to court will not drive Congress to go beyond fixing that narrow problem as you so eloquently put it. Mr. LaTourette. I appreciate that. My time is brief. Let me just say I thought that the district court was wrong, but I thought that that provision was trying to kill an ant with a sledgehammer, and I hope that it is resolved. Mr. Hamberger. I wish I had said it that way. Mr. LaTourette. Well, it would have been shorter. [Laughter.] Mr. LaTourette. Mr. Durbin, has your group at all looked into what it would do to your ability to ship chemicals or hazardous materials? Mr. Durbin. We have, Mr. LaTourette, and we would agree with AAR's interpretation here. I think, again, it was a narrow language that intended to fix that one issue, but our concern as well is that it would have a much worse effect on the overall preemption issues. Mr. LaTourette. I just thought it was nutty. Mr. Pickett, I would go to you. I hope that in the Oberstar-Brown bill, that we can work together as Republicans and Democrats and come up with a bipartisan agreement on this limbo time and hours of service and everything else. I wrote down, Mr. Pickett, that you said let the employee be empowered, I think you said. I couldn't agree with you more. I am the lead sponsor on a mandatory overtime for nurses. Just like truck drivers, just like people who operate the trains, I don't want some tired nurse taking care of me if she doesn't feel or he doesn't feel that they want to work that mandatory overtime and that they need their rest. I think the employee is in the best position to make that determination. I have to tell you that I visited with some of your members at the Collinwood Yard, the one that CSX operates, and they have a view. What I am worried about when we have inflexibility rather than flexibility, when we don't empower employees and come to some agreement based upon whether you are in Yuma, Arizona or wherever else, Pennsylvania or things of that nature, when we have a one size fits all, I don't think you are empowering the employees. So one of your guys said, come on out in the yard, and he threw a switch. He said, now that I have thrown that switch, I am on the clock. But he said, you know what, if I want to work some overtime, if I want to work a little bit more to feed my family and take advantage of that, I should have the opportunity to do that. I know when I am tired. I know when I am not tired. You don't think so, Mr. Brunkenhoefer, that this guy didn't know when he was tired? Mr. Brunkenhoefer. We have worked with NTSB and a lot of other people. It is like taking drugs. You feel fine. Mr. LaTourette. Sure. Mr. Brunkenhoefer. But you don't know that your judgment is impaired. So people who work beyond a certain extent are not judgments, as much as their intentions are, of their ability to be able to perform. I feel real good. I am going to drive on to Erie or to Buffalo, but when I go through Ashtabula from Collinwood, I had already been up 24 hours, but I felt fine when I left. Mr. LaTourette. Yes, but that is kind of an extreme example. You are right. Some people feel they are invincible. When I was 21 years old, I felt I could do a lot more than I can now at 52 years old. But if an employee says, you know what, I am feeling pretty good, and I think I can work 10 hours today as opposed to 8 hours a day, I think they are capable of making that judgment. I think that there does come a point when they are not able to make that judgment, and that is when hours of service and limbo time and other things have to come in and come into play. I would hope. I know that everybody is excited about the Oberstar bill, but I would hope that we could resolve this in a way that builds more flexibility in, that makes the railroads safer, protects workers' rights, protects their sleep, gives them the opportunity to get the rest they need to do their job but also recognizes that not every train route is the same, not every employee is the same, not every job is the same. I worry about the direction of the current bill, and I hope that the Chairman will work with Mr. Shuster and others, and we can come up with a product that everybody is proud of. I thank you. Mrs. Napolitano. Thank you. Mr. Pickett. I would like to respond. Mr. LaTourette. Sure. Mr. Pickett. I also do support the hours of service. We have worked on it since 1976 when we became part of it, and I do support it. I think that there are times, though, that the people don't get the adequate rest that they should be allowed. That is what I meant. To empower them to mark off without being jeopardized or being hurt by saying, hey, I didn't go to bed tonight like I should have. I didn't go to bed at 3:00. I didn't know I was going to get called out at 11:00 tonight. Mr. LaTourette. If the Chair will indulge me, I agree with that 100 percent, and that is the whole purpose behind the nurse mandatory overtime. That person is subject. Not Mr. Brunkenhoefer's analogy of driving 24 hours, and I hope when you have been up 24 hours, you please stay out of Ashtabula County, Mr. Brunkenhoefer. But I do think that that employee should have the opportunity--that is what I am talking about--to say, you know what, I am beat, I am beat, so that we empower you. That employee, I do think, within certain reasonable standards has the opportunity to say, you know what, I can go another couple of hours today to feed my family. That is where I worry that when we become inflexible in our rules, we don't completely empower the employee the way that we want to. I would invite you to talk to the guys in the Collinwood Yard because they don't necessarily agree with that position. Thank you. Mr. Tolman. Mr. LaTourette, if I can also, please. Mr. LaTourette. If the Chairman will let you, you can talk all day. Mr. Tolman. Madam Chairman? Mrs. Napolitano. I think my Ranking Member here is getting a little antsy but go ahead. Mr. Tolman. Thank you. You know, it brings up a great point. Yes, we should be working together and cooperating, but for the last 12 years we have had that 45 U.S.C. 2108 [subsequently altered by witness to read: 45 U.S.C. 21108] section of the Hours of Service Act, which has provided both labor and management the opportunity to cooperate, to introduce pilot programs. Nothing has happened. There is no cooperation. Hence, that is why the legislation in front us, 2095, is the right direction. It is the only direction. Mr. Hamberger. Cooperation would extend to the seniority districts of your members who voted down 10 hours of rest at their away facility because they were more interested in getting back home than having 10 hours of rest. It goes both ways. Mr. Tolman. Yes, it does. Mrs. Napolitano. Okay, gentleman, thank you very much. The last question that I have is to Mr. Durbin. We kind of left you alone, so I don't want to make you feel neglected. Mr. Durbin. I appreciate it. Mrs. Napolitano. The railroads have a proposal to limit their liability resulting from hazardous material accidents or incidents, whichever, and their proposal requires chemical shippers to cover part of the liability in the event of hazardous material spills. Did the railroads involve you in the development of the proposal and what do your members think of it and which members support or oppose the proposal? I will tell you I have had chemical spills in my area, and it is not a very nice thing to happen. Mr. Durbin. Mrs. Napolitano, as I mentioned in our testimony, we were not consulted as far as putting together the proposal that AAR has circulated. Now they have shared it with us, the completed version, and we have shared that with our members. The very clear answer back, as I mentioned in my testimony, was very clear concerns about the proposal as it is being one-sided. Again, I think that this is a proposal that if we are going to go down this road, it has got to include all the different players, all the different stakeholders that are involved in the safe movement of hazardous materials. Again, should it be decided that this is a good way to go as far as limiting liability for any of the players in that chain, we need to make clear that there is a distinction between accidents and negligence and again to make sure that the liability is spread across all the different players. Mr. Hamberger. If I might just end on a more civil note, Mrs. Napolitano, we did indeed share it with the ACC, with the Fertilizer Institute. We tried at one point to try to come up with a joint proposal with the Fertilizer Institute but did not come to resolution on that. So we thought it was important to get out our views. We did indeed share it. I sent it to Jack Gerard and to their counsel. Obviously, something like this is not going to go forward without the full participation of everybody in that supply chain, and so we look forward to being able to sit down and talk to ACC as well. Mrs. Napolitano. That would be tremendous, especially if there are shipments of ammonia and things that could harm the environment that are very critical in many areas. Mr. Hamberger. Absolutely. Mrs. Napolitano. Well, with that, I thank the Ranking Member and the witnesses for their valuable testimony and for your indulgence. Again, Members of the Committee may have additional questions for the witnesses, and we ask you to respond to these in writing. The record will be held open for 14 days for these responses. Unless there is further business, the Subcommittee is adjourned. Thank you very much. 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