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25–309 PDF 2017

BUILDING A 21ST-CENTURY INFRASTRUCTURE FOR 

AMERICA: THE STATE OF RAILROAD, PIPELINE, 

AND HAZARDOUS MATERIALS SAFETY REGULATION AND OPPORTUNITIES FOR REFORM 

(115–11) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON RAILROADS, PIPELINES, 

AND HAZARDOUS MATERIALS 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

APRIL 26, 2017 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

Available online at: http://www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=transportation 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

BILL SHUSTER, Pennsylvania, Chairman 

DON YOUNG, Alaska 

JOHN J. DUNCAN, JR., Tennessee, 

Vice Chair 

FRANK A. LOBIONDO, New Jersey 

SAM GRAVES, Missouri 

DUNCAN HUNTER, California 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

LOU BARLETTA, Pennsylvania 

BLAKE FARENTHOLD, Texas 

BOB GIBBS, Ohio 

DANIEL WEBSTER, Florida 

JEFF DENHAM, California 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

SCOTT PERRY, Pennsylvania 

RODNEY DAVIS, Illinois 

MARK SANFORD, South Carolina 

ROB WOODALL, Georgia 

TODD ROKITA, Indiana 

JOHN KATKO, New York 

BRIAN BABIN, Texas 

GARRET GRAVES, Louisiana 

BARBARA COMSTOCK, Virginia 

DAVID ROUZER, North Carolina 

MIKE BOST, Illinois 

RANDY K. WEBER, SR., Texas 

DOUG LAMALFA, California 

BRUCE WESTERMAN, Arkansas 

LLOYD SMUCKER, Pennsylvania 

PAUL MITCHELL, Michigan 

JOHN J. FASO, New York 

A. DREW FERGUSON IV, Georgia 

BRIAN J. MAST, Florida 

JASON LEWIS, Minnesota 

PETER A. DEFAZIO, Oregon 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

STEVE COHEN, Tennessee 

ALBIO SIRES, New Jersey 

JOHN GARAMENDI, California 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

ANDRE ́ CARSON, Indiana 

RICHARD M. NOLAN, Minnesota 

DINA TITUS, Nevada 

SEAN PATRICK MALONEY, New York 

ELIZABETH H. ESTY, Connecticut, Vice 

Ranking Member 

LOIS FRANKEL, Florida 

CHERI BUSTOS, Illinois 

JARED HUFFMAN, California 

JULIA BROWNLEY, California 

FREDERICA S. WILSON, Florida 

DONALD M. PAYNE, JR., New Jersey 

ALAN S. LOWENTHAL, California 

BRENDA L. LAWRENCE, Michigan 

MARK DESAULNIER, California 

(II) 

SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS

JEFF DENHAM, California, Chairman 

JOHN J. DUNCAN, JR., Tennessee 

SAM GRAVES, Missouri 

LOU BARLETTA, Pennsylvania 

BLAKE FARENTHOLD, Texas 

DANIEL WEBSTER, Florida 

MARK MEADOWS, North Carolina 

SCOTT PERRY, Pennsylvania 

MARK SANFORD, South Carolina 

TODD ROKITA, Indiana 

JOHN KATKO, New York 

BRIAN BABIN, Texas 

RANDY K. WEBER, SR., Texas 

BRUCE WESTERMAN, Arkansas 

LLOYD SMUCKER, Pennsylvania 

PAUL MITCHELL, Michigan 

JOHN J. FASO, New York, Vice Chair 

JASON LEWIS, Minnesota 

BILL SHUSTER, Pennsylvania (Ex Officio) 

MICHAEL E. CAPUANO, Massachusetts 

DONALD M. PAYNE, JR., New Jersey 

JERROLD NADLER, New York 

ELIJAH E. CUMMINGS, Maryland 

STEVE COHEN, Tennessee 

ALBIO SIRES, New Jersey 

JOHN GARAMENDI, California 

ANDRE ́ CARSON, Indiana 

RICHARD M. NOLAN, Minnesota 

ELIZABETH H. ESTY, Connecticut 

CHERI BUSTOS, Illinois 

FREDERICA S. WILSON, Florida 

MARK DESAULNIER, California 

DANIEL LIPINSKI, Illinois 

PETER A. DEFAZIO, Oregon (Ex Officio) 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vi 

TESTIMONY 

Linda Bauer Darr, President, American Short Line and Regional Railroad 

Association ............................................................................................................ 5 

Roger Nober, Executive Vice President, Law and Corporate Affairs, and Chief 

Legal Officer, BNSF Railway .............................................................................. 5 

Paul W. Rankin, President, Reusable Industrial Packaging Association, on 

behalf of the Interested Parties for Hazardous Materials Transportation ...... 5 

Robin Rorick, Group Director of Midstream and Industry Operations, American Petroleum Institute ...................................................................................... 5 

Donald F. Santa, Jr., President and Chief Executive Officer, Interstate Natural Gas Association of America ......................................................................... 5 

John Tolman, Vice President and National Legislative Representative, Brotherhood of Locomotive Engineers and Trainmen ................................................ 5 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Linda Bauer Darr .................................................................................................... 47 

Roger Nober ............................................................................................................. 68 

Paul W. Rankin ........................................................................................................ 75 

Robin Rorick ............................................................................................................. 81 

Donald F. Santa, Jr. ................................................................................................ 90 

John Tolman ............................................................................................................ 95 

SUBMISSIONS FOR THE RECORD 

Paul W. Rankin, President, Reusable Industrial Packaging Association, on 

behalf of the Interested Parties for Hazardous Materials Transportation, 

response to question from Hon. Peter A. DeFazio of Oregon, and extension 

and clarification of remarks ................................................................................ 20 

ADDITIONS TO THE RECORD 

Letter of April 26, 2017, from Chris Jahn, President, The Fertilizer Institute, 

to Hon. Bill Shuster, Chairman, Committee on Transportation and Infrastructure, et al. ..................................................................................................... 103 

Richard Patterson, Executive Director, Sporting Arms and Ammunition Manufacturers’ Institute, Inc., views on certain hearing topics .............................. 105 

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(1) 

BUILDING A 21ST-CENTURY INFRASTRUCTURE FOR AMERICA: THE STATE OF RAILROAD, PIPELINE, AND HAZARDOUS MATERIALS SAFETY REGULATION AND OPPORTUNITIES FOR REFORM 

WEDNESDAY, APRIL 26, 2017 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON RAILROADS, PIPELINES, AND

HAZARDOUS MATERIALS, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, Washington, DC. 

The subcommittee met, pursuant to notice, at 10:05 a.m. in room 

2167 Rayburn House Office Building, Hon. Jeff Denham (Chairman 

of the subcommittee) presiding. 

Mr. DENHAM. Good morning. The committee will come to order. 

Today we meet to take stock of the landscape for safety regulation across all of the industries under the committee’s jurisdiction, 

and consider opportunities for reform. 

Much has been accomplished on rail, pipeline, and hazardous 

materials safety, most recently through the Fixing America’s Surface Transportation, or the FAST Act, and the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016, or the 

PIPES Act. I am proud that we have consistently worked on a bipartisan basis, and I want to thank Chairman Shuster and Ranking Members DeFazio and Capuano for their work on these bills. 

Safety is our top priority, and will continue to be so. But the 

breadth of regulation has grown significantly in recent years. And 

so we are here to ask stakeholders about the impact and burden 

of regulation on their businesses, and ways to ease the burden 

without compromising safety. 

Are these the—[lifts volumes from table and reads:] ‘‘2016 Regulations and Codes.’’ We are very focused on safety, but this has 

more than doubled in the last—how many years? Since 2000. So, 

quite a bit more compliance here. Again, safety is our number-one 

priority. But we also want to make sure that, as we move forward, 

we are doing so in a way that allows all of you to conduct business 

appropriately. 

In 2004, when the Pipeline and Hazardous Materials Safety Administration, PHMSA, was created, the number of pages of this 

CFR governing pipeline and hazardous material had increased over 

200 pages. Regardless, we are adding more regulations without 

considering the cumulative burden on industry. And all of the industries represented here today are facing growing regulations, not 

2 

just from the DOT, but from other agencies, such as the Department of Labor, as well. 

Today’s hearing is an opportunity for our stakeholders to tell us 

what is working, what is not, and what needs to be modified in 

terms of regulatory process. Are regulations based on sound 

science? Is guidance being used appropriately? Are the appropriate 

rulemaking processes being followed? Can performance-based regulations be more effective than command-and-control regulations in 

achieving safety goals while imposing less of a burden on industry? 

These are just some of the issues I hope that we will explore today. 

I am also interested in hearing from our witnesses about how the 

agencies are implementing the FAST and PIPES Acts, and whether 

they are following congressional intent. PHMSA has still not implemented congressional directives from 2011, something we have expressed concern about over the past few years. 

So I want to hear from each of our witnesses, and thank each 

of them for being here today. 

I now call on Mr. Capuano for any comments that he may have. 

Mr. CAPUANO. Thank you, Mr. Chairman. Great introduction. 

Let’s get to the hearing. 

Mr. DENHAM. I now call on the chairman of the full committee, 

Mr. Shuster. 

Mr. SHUSTER. That is why I love Capuano. 

[Laughter.] 

Mr. DENHAM. I now call on—are you going? 

Mr. SHUSTER. Yes, I am going. 

[Laughter.] 

Mr. SHUSTER. Capuano doesn’t love me that much, because I talk 

more than he does. Would the chairman recognize me? 

Mr. DENHAM. The chairman of the full committee, Mr. Shuster, 

is recognized. 

Mr. SHUSTER. I appreciate that. I am really glad we are having 

this hearing today, and everybody has heard the President of the 

United States talk about doing a big infrastructure bill. I feel confident we are going to do a big infrastructure bill. It will cover 

more than just the modes that we deal with here in the committee. 

It will deal with—I think broadband will be in there, and the 

electric grid, the power grid will be part of it, plus many other 

things. 

As I have told people, you know, he just dropped the MOAB, the 

mother of all bombs, on Afghanistan. Well, I think this is going to 

be the MOAB of bills, the mother of all bills. I think it is going to 

be a big bill, I think it is something that we can find common 

ground across the aisle with our counterparts, because when you 

talk about the infrastructure of this country, everybody knows we 

need to invest. 

And again, I feel very confident we are going to be able to do 

something with our Democratic colleagues and, more importantly, 

I think even with our Senators over there, Republicans and Democrats, if we get them going in the right direction. 

And when we talk about the infrastructure bill, two of the two 

industries that I talk to—and I have talked to the President and 

some of his folks—it doesn’t require Federal dollars for the railroad 

industry and the pipeline industry. They are already spending bilVerDate Aug 31 2005 11:16 Sep 25, 2017 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 P:\HEARINGS\115\RR\4-26-2~1\25309.TXT JEAN
3 

lions of dollars on their own infrastructure. I know last year, I believe, the number was $30 billion the railroad industry spent. And 

if we allow the railroad industry to keep more of their profits, I am 

confident that that $30 billion will grow, and they will rebuild— 

continue to rebuild their infrastructure. 

The same with the pipeline industry. In Pennsylvania we have two pipeline projects, one a $3 billion pipeline project, one a $1 billion project. The $3 billion pipeline project is being held up because 

FERC and the Corps of Engineers can’t agree on where to permit 

it to build it, and it is just ridiculous, when you see this thing is 

going to be safe—pipelines are the safest mode to move hazardous 

materials. So we have to make sure that we move forward. 

And I am confident that the—you know, the mistakes happen out 

there, things happen, but moving by pipes is extremely safe, as 

well as the railroad industry is incredibly safe. 

My dear friend who has departed us, Jim Oberstar, and we had 

this big hearing one day on rail safety, and he was questioning 

whether the railroads are safe enough, and I was saying they were, 

and he talked about when he was a young man he jumped off the 

back of a railcar. He was working for the railroad up in Minnesota. 

He jumped off the back of a railcar, slipped, and he said, ‘‘My head 

missed the rails by inches. I could have split my head open and 

been killed.’’ 

Well, they happened to call the vote at the time, so I walked 

down the hall and the entire rail industry was there to greet me. 

And they said, ‘‘If he would have jumped off that and we knew it, 

we’d have had to fire him,’’ because you have to hold both the rails 

going down the steps the back of a railcar. 

So, you know, the railroad industry is committed to safety. Any 

time you meet with them you got to go through a safety briefing. 

And again, I know the pipeline industry, I know the folks in the 

hazardous material business are really—that is the number-one 

priority. For your industries I know it is, and it is for this committee. So we want to make sure that we are working together to 

reduce the regulatory burden. 

It is crazy, when you look at those things and how they have 

grown over the past 15, 16 years. And it has gotten safer. And not 

necessarily because of those regulations. You know, again, if we 

could get these things done faster, smarter, let people keep more 

of their money, it is going to benefit everybody, it is going to benefit the economy as we move forward. 

And, with that, I will say sorry, Mr. Capuano, for taking up so 

much time, but I am ready to go. Thank you very much, Chairman. 

Mr. DENHAM. I now call on the ranking member of the full committee, Mr. DeFazio, for a brief opening statement. 

Mr. DEFAZIO. Thank you, Mr. Chairman. I will have an opening 

statement, because I think this merits a lot of discussion and scrutiny by this committee. 

And, I mean, there are a few examples out there: the Enbridge 

Pipeline, which leaked for quite a period of time, 1 million gallons 

of tar sands, mostly unrecoverable, in the river, because simple 

leak detection was not effective; the gas explosion in San Bruno, 

California, killed eight people because of problems with the pipe 

and the pipeline itself. 

4 

And, as someone mentioned, PHMSA, a pretty much dysfunctional agency, has yet to implement rules from our 2011 bill. So, 

before we start messing around with the things that are pending, 

we ought to actually see what they produce and then review what 

their products are. 

And then, finally, one that is of extraordinary concern to me, is 

lithium batteries on airplanes. We just had another lithium battery 

incident. Luckily, it was not in the hold of an airplane. Otherwise, 

we would have seen dead people. It was Sunday night, a Union Pacific train. The car was removed from the train when it started 

smoking. Later there was an explosion inside. And it contained 

cargo of small lithium batteries. If that happened in the hull of an 

airplane, it would come down and people would die. 

We have the example of UPS flight 6 near Dubai, which created 

a giant crater. Twenty-seven minutes, forty-five seconds. That is 

how much time between when the fire alarm went off on the cargo 

plane until the plane cratered into the ground. I think there is a 

visual of that. The manifest said there were no hazardous materials on board. In fact, there were three shipments of lithium batteries that had quite a variety of cells inside. 

Two minutes after the flight—fire warning, the flight leveled off. 

It had already started to burn through the flight controls. Four 

minutes, the cockpit was full of smoke. Five minutes, the smoke 

was so thick the crew had a hard time seeing their instruments. 

Nine minutes, the captain was unconscious or dead, first officer 

couldn’t see the controls inches in front of him. And 28 minutes 

later, the plane cratered into the ground with the pilots deceased. 

Luckily, they did not crash into a large, inhabited area. 

The International Civil Aviation Organization, which is not 

known for taking a tough stance on things, finally, after the manufacturers of Airbus and Boeing came out and said there is no way 

to repress these fires on board an airplane, they adopted some very 

minimal standards regarding the charging of the batteries and 

that, and also that they should not be on passenger aircraft. 

The industry says that ICAO standard is a really bad idea. We 

should put them on passenger aircraft, and we shouldn’t restrict 

them on airplanes. You know, it only takes one half-charged lithium battery, the size of a water bottle, in a pack of eight to take 

down an airplane. So the fact that the DOT was working on adopting the very minimalist ICAO standards, and that has been stayed 

by the Trump administration, which said it would not stay regulations which are critical to health and safety—I don’t know what is 

critical to health and safety if airliners falling out of the sky isn’t 

critical, both to the people on board and the people on the ground 

underneath. 

There are times when regulation becomes absurd and over-regulated. But other times regulation is absolutely essential in the public interest. And now the passenger airlines in the United States 

have said, voluntarily, they won’t carry lithium batteries. 

But given the insufficient labeling requirements, we are not sure 

whether they are or are not in the carriers. And secondly, it is voluntary. So maybe one of the low-budget airlines will say, ‘‘Hey, no 

one else is carrying them. The industry will pay us a premium to 

5 

move these things around. We will put them on board. Nothing to 

worry about.’’ 

So, you know, let’s not be cavalier about this and aggrandize the 

places where we have over-regulated with places where we need to 

regulate for the critical national safety and health interests of the 

people of the United States of America. 

With that, I look forward to the hearing. 

Thank you, Mr. Chairman. 

Mr. DENHAM. Thank you. I would now like to welcome our panel 

of witnesses. 

First, Ms. Linda Darr, president, American Short Line and Regional Railroad Association. 

Mr. Roger Nober, executive vice president, law and corporate affairs for BNSF Railway. 

Mr. Paul Rankin, president, Reusable Industrial Packaging Association, on behalf of the Interested Parties for Hazardous Materials 

Transportation. 

Mr. Robin Rorick, group director of midstream and industry operations for American Petroleum Institute. 

Mr. Donald Santa, Jr., president and chief executive officer, 

Interstate Natural Gas Association of America. 

And Mr. John Tolman, vice president and national legislative 

representative for the Brotherhood of Locomotive Engineers and 

Trainmen. 

I ask unanimous consent that our witnesses’ full statements be 

included in the record. 

Without objection, so ordered. 

Since your written testimony has been made part of the record, 

the committee requests that you limit your summary to 5 minutes. 

Ms. Darr, you may proceed. 

TESTIMONY OF LINDA BAUER DARR, PRESIDENT, AMERICAN 

SHORT LINE AND REGIONAL RAILROAD ASSOCIATION; 

ROGER NOBER, EXECUTIVE VICE PRESIDENT, LAW AND 

CORPORATE AFFAIRS, AND CHIEF LEGAL OFFICER, BNSF 

RAILWAY; PAUL W. RANKIN, PRESIDENT, REUSABLE INDUSTRIAL PACKAGING ASSOCIATION, ON BEHALF OF THE INTERESTED PARTIES FOR HAZARDOUS MATERIALS TRANSPORTATION; ROBIN RORICK, GROUP DIRECTOR OF MIDSTREAM AND INDUSTRY OPERATIONS, AMERICAN PETROLEUM INSTITUTE; DONALD F. SANTA, JR., PRESIDENT AND 

CHIEF EXECUTIVE OFFICER, INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA; AND JOHN TOLMAN, VICE PRESIDENT AND NATIONAL LEGISLATIVE REPRESENTATIVE, 

BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN 

Ms. DARR. Thank you, Chairman Denham and Ranking Member 

Capuano and members of the committee. I am Linda Darr, president of the American Short Line and Regional Railroad Association, representing the Nation’s 600 class II and class III railroads. 

Together, short line railroads operate approximately 50,000 miles 

of track, or nearly one-third of the national railroad network. Thirty members of this subcommittee’s thirty-two members have at 

least one short line operating in your district. 

6 

There are three important differences between short lines and 

the large, class I railroads. First, short lines are small businesses. 

Our combined annual revenues are less than the annual revenues 

of any one of the four large class I railroads. The average short line 

employs 30 people or less. 

Second, most short lines operate track headed for abandonment 

under previous class I owners. These marginal lines receive little 

or no capital investment, resulting in significant deferred maintenance. Consequently, short lines must invest over 25 percent of 

their annual revenues in rehabilitation, making us one of the Nation’s most capital-intensive industries. 

Third, short line operating characteristics are far different than 

those of the class I’s. Short lines are generally operating in a much 

smaller geographic area. These shorter distances, combined with 

slower speeds and shorter trains, produce more predictable work 

schedules and more routine patterns of interchange and delivery. 

These three characteristics—our size, our capital needs, and our 

operating requirements—shape our view of the safety regulations 

that impact our businesses. We need regulations that are more efficient, more goal-oriented, less reliant on a one-size-fits-all mindset, 

and much more focused on costs and benefits. 

We understand the need to make railroading as safe as possible, 

and we understand that Government has an obligation to step in 

when necessary. But Government also has an obligation to step in 

responsibly. Too often Government regulation forces companies to 

spend huge sums of money and solutions that don’t solve much. 

Most damaging are the one-size-fits-all regulations that provide 

no basis for the presumed benefits and that ignore our unique operating characteristics. I cite four examples in my written testimony, 

but let me briefly describe one of those. 

The part 243 minimum training standard rules. The proposed 

rule imposes an enormous paperwork burden on short line railroads, with no corresponding safety benefit. The rule was drafted 

pursuant to the Rail Safety Improvement Act, but we believe that, 

ultimately, the FRA’s interpretation goes far beyond anything contemplated by the statute. 

If I might be permitted the use of a prop here, they told me to 

drop it on the table for extra emphasis, so I will do that. 

Following the proposed rule, we hired a safety professional to 

produce a template manual that met all the requirements of the 

rule for just 1 of the 26 crafts, or job assignments, on the railroad. 

So this is the manual that was produced. This notebook would have 

to be duplicated 26 times to cover all of the crafts in our industry 

for our small businesses. 

We gave this book to the FRA, and we asked them to comment 

on and approve it as a template that could be used by all the short 

lines. It took FRA 3 years to reply: a good indication of the complexity and the time-consuming nature of this directive. We believe 

this regulation should be repealed, and the underlying statutory requirement revised. 

Let me conclude with an anecdote that symbolizes the importance of safety for our industry. Before joining the short line association, I represented the trucking industry for just about 17 years. 

When we had big meetings, they were usually kicked off with a 

7 

pledge to the flag, or sometimes even a prayer. In the short line 

industry, we start each and every meeting, big or small, with a 

safety briefing. It is a central focus of what we do. It reflects our 

commitment to safety, and it is an effort to make us safer today 

than we were the day before. 

With the help of Congress, we stood up the Short Line Safety Institute to help us drive a sustainable, strong safety culture 

throughout our industry, and to carry forward that commitment to 

safety. You are undertaking an important task. If you make regulations more efficient, more goal oriented, and more focused on benefits and costs, you will have done our industry and the public a 

great service, and we are deeply appreciative of that effort. Thank 

you. 

Mr. DENHAM. Thank you, Ms. Darr. 

Mr. Nober, you may proceed. 

Mr. NOBER. Good morning, Chairman Denham, Chairman Shuster, subcommittee Ranking Member Capuano, and Ranking Member DeFazio. Thanks for the opportunity to testify before you this 

morning on behalf of BNSF Railway. And I have to say it is always 

a privilege to be able to be back before this subcommittee and this 

committee to be able to talk about this topic in particular: safety, 

regulatory matters, and ways to improve the regulatory process, a 

subject which I spent much of my 25 years in transportation policy 

focusing on. 

At the outset, I would like to commend this committee for its 

work during the last Congress to enact a significant amount of legislation that is beneficial to railroads. And in this Congress we look 

forward to again working closely with this committee on a 

proactive agenda, including updating and improving regulation, 

and ensuring that transportation infrastructure policy, as Chairman Shuster mentioned earlier, treats railroads equitably. 

Transportation issues and this committee have always been bipartisan and solution-oriented, and we think the subject of today’s 

hearing lends itself to those two important characteristics. 

Today’s topic of safety regulation improvement is difficult, but it 

is important. BNSF has been discussing it with policymakers for 

years. 

And with BNSF, growth is at the core of our business model. 

And, like many businesses around the country, we look to Congress 

and the administration to promote policies that help grow the economy, so that we can grow with our customers. Now, our ability to 

grow and earn adequate revenues and reinvest in the company is 

directly related to the topic of today’s hearing: safety. Reinvestment 

is the foundation of the railroad safety record that you and we have 

come to expect, and operating safely and reliably is at the core of 

our ability to attract new business. 

Now, the laws of physics that make railroads the most efficient 

mode of surface transportation also make railroads the most unforgiving. This risk has been significantly contained through the years 

through large capital investment in our track, structures, equipment, and road bed, and implementing innovative technologies and 

processes. Today we have an incredibly safe railroading environment. These technologies, as well as the effectiveness of our annual 

maintenance and ongoing employee training and rules compliance 

8 

programs, have driven train incidents and employee safety records 

to historic lows. 

Now, we have not yet achieved our safety vision. Incidents and 

accidents still do occur. However, we believe that they are outliers. 

Operating safely every day on every move is now our normative 

outcome and our expectation. 

Now, turning to today’s hearing, at BNSF we believe that technology is a key to our next level of safety improvement. BNSF believes it is important for regulators and regulation to catch up with 

and encourage technological innovation. This will promote a virtual 

cycle of continued investment in the development of technologies, 

allowing railroads to advance safety, while also potentially achieving more productivity. This is a commonsense approach that is supported by recent Executive orders, and also those issued in previous administrations, and it has been consistent across time. 

Altering existing rules to keep up with changes in technology or 

operations has not been easy. And I am fond of saying in railroading you are never far from history. And well-meaning safety 

regulators can be extremely risk-averse in their approach to reviewing or changing regulations, especially those that have been 

long in place, even in an increasingly technologically transformed 

work environment. 

An improved approach to regulatory oversight would empower 

the regulators to embrace innovation and technology-enabled advancements in safety, rather than make them more difficult. 

As I have discussed in my written testimony, there are many 

areas where technology and innovation run into historical regulation. Rail systems are generally regulated with time and mileagebased manual inspection regimes, testing, and overhaul activities. 

But today, signal systems, grade crossing equipment, railcars, 

brakes, and locomotives have microprocessor technologies that 

monitor and report actual asset health on a real-time basis. 

There is still a role for visual inspections, but regulators need to 

recognize the enhanced safety value of automated inspections and 

diagnostics. Similarly, our investment in wayside technology has 

improved our track inspection technology. 

Electronic recordkeeping and communications rules are ripe for 

updating, with railroad technology and digital communication able 

to drive safer and more efficient outcomes. There are also a variety 

of track and ballast regulations which should be revisited to allow 

compliance through inspection technologies and appropriate standards to bring this area of regulation up to date, as well. 

Now, improving administrative processes is critically important. 

The FRA has a regulatory waiver process that can be improved. 

And to the extent that railroads request waivers to demonstrate 

technology, regulators should view them as opportunities to create 

common understanding about rail operations, similar to pilot programs. 

Waivers should be speedy, cooperative, and transparent, and can 

be a precursor to moving rail safety regulation to a performancebased regulation, where safety outcomes, rather than activities, are 

incentivized. 

9 

Finally, we believe regulators should curtail the practice of regulating through non-APA regulations like guidances, emergency orders, and safety advisories. 

In conclusion, regulatory innovation does not happen overnight, 

and it is especially difficult in a long-lived industry like railroads, 

where there have been more than 100 years of how it has always 

been done. But there are many railroad-related regulations that 

call for review which could be done cooperatively, if we could just 

get started. And this committee can play an important role in their 

implementation. 

I look forward to your questions. 

Mr. DENHAM. Thank you, Mr. Nober. 

Mr. Rankin, you may proceed. 

Mr. RANKIN. Chairman Denham, Chairman Shuster, Ranking 

Member Capuano, and Ranking Member DeFazio, thank you very 

much for giving us the opportunity to talk here today. I am Paul 

Rankin. I serve as chair of the Interested Parties group, which is 

a volunteer coalition of 46 organizations that share a deep and 

abiding interest in legislative and regulatory issues related to the 

safety and security of hazardous materials transportation, both domestically and internationally. 

At the outset, I want to make clear to the subcommittee that 

members of the Interested Parties are deeply committed to ensuring the safe and secure transportation of hazmat in both domestic 

and international transportation. Safety is of paramount concern to 

the industry, and our exemplary record in this area and support for 

reasonable and effective regulation underscore this goal. 

We support a robust, efficient, and centralized hazmat transportation regulatory program that is located within the Department of 

Transportation, specifically PHMSA, and which has clear, crossmodal, and international authorities. 

The Interested Parties do support reasonable Federal regulation 

in the field of hazardous materials transportation. As I am sure the 

members of the committee know, the transportation of hazardous 

materials in domestic and international commerce is essentially 

prohibited, unless authorized by a regulation, special permit, or approval. As such, reasonable regulation is needed to ensure the safe 

and uninterrupted—I will get that, soon—flow of these materials 

and commerce. 

In line with our desire for reasonable Federal regulation is the 

support for preemption authority, the purpose of which is to promote safety by ensuring, to the extent practicable, that a patchwork of State and/or local regulations do not impede interstate 

commerce, or encourage communities to export transportation risks 

to their neighbors. 

Because hazardous materials may only be transported if appropriately authorized, regulatory flexibility is needed for such activities as authorizing one-time movements of hazardous materials 

and facilitating the emergence of new and innovative technologies. 

Special permits and approvals are the regulatory mechanisms that 

PHMSA uses for these purposes. We are grateful for the attention 

that Congress and this committee, in particular, has given to addressing delays in the special permits and review process. 

10 

And, although PHMSA has made appropriate and significant 

progress in recent years to streamline the special permits program, 

including a recent rulemaking incorporating some special permits 

older than 10 years into the hazardous materials regulations, we 

believe more can and should be done to improve this program. 

Specifically, we recommend PHMSA regularly review all special 

permits of general applicability, and publish annually a special permit rulemaking that incorporates those deemed to be safe into the 

hazardous materials regulations. 

Turning to international affairs for a moment, international 

trade in hazardous materials is a global and significant business. 

To ensure these commodity movements are safe, the Secretary of 

DOT has delegated authority to PHMSA to represent the United 

States in various international regulatory forums, including the 

U.N. Subcommittee of Experts on the Transport of Dangerous 

Goods, which the U.S. presently chairs. 

The Interested Parties encourage Congress and this committee to 

continue its strong support for DOT’s international work. More specifically, we want you to know that we believe it is important that 

a PHMSA representative serve as an ICAO panel member, and 

lead the Dangerous Goods Panel delegation to ICAO. 

In terms of enforcement issues, although MAP–21 contained a 

provision directing PHMSA to develop uniform performance standards for inspectors and investigators, the Interested Parties believe 

PHMSA can and should do a great deal more to improve this program. The Interested Parties suggest the creation of an online consultation program patterned on similar programs offered or overseen by, among other agencies, the Occupational Safety and Health 

Administration. 

We envision such a program being offered to small and mid-sized 

businesses throughout the United States, and we think this kind 

of a program will do much to ensure safety across the board. 

Turning to a general regulatory reform matter, the IPs support 

adoption of administrative reforms for PHMSA like those enacted 

by Congress in the FAST Act, applicable to the Federal Motor Carrier Safety Administration. Such reforms would include inclusion of 

a regulatory impact analysis for each proposed and final rule that 

considers the effect of the rule on different segments of industry, 

and utilizes the best available science, and requiring that all significant rules be initiated with an advanced notice of proposed rulemaking or, alternately, a negotiated rulemaking. 

Thank you very much, Mr. Chairman. 

Mr. DENHAM. Thank you, Mr. Rankin. 

Mr. Rorick, you may proceed. 

Mr. RORICK. Good morning, Chairman Denham, Chairman Shuster, Ranking Member Capuano, and members of the subcommittee. Thank you for inviting me to speak today. With over 

625 members, the American Petroleum Institute is a national trade 

association representing all facets of the oil and natural gas industry. As group director of API midstream and industry operations, 

I am responsible for all energy infrastructure issues, including storage, rail, pipelines, marine, and all of the modes of oil and natural 

gas transportation. 

11 

The United States is leading the world in the production, refining, and processing of oil and natural gas, and at the same time 

in the reduction of carbon emissions, which are at the lowest levels 

in almost 25 years. In less than a decade, we have transitioned 

from an era of energy scarcity and dependence to one of energy 

abundance and security. This energy renaissance has helped the 

U.S.—has helped U.S. families save on their energy bills, created 

greater job opportunities for American workers, bolstered U.S. 

manufacturing, strengthened our economy, and helped to enhance 

our national security interests domestically and abroad. 

An energy infrastructure system that keeps pace with growing 

production demand is essential. Yet, despite having a robust system, a recent ICF study found that the U.S. will need up to $1.3 

trillion in energy investment—energy infrastructure investment 

through 2035 to keep pace with supply and demand. This investment, on average, will support up to 1 million jobs, and add up to 

$100 billion to GDP, annually. 

Safety is our industry’s core value. Since 1924, API has been the 

leader in developing voluntary consensus, internationally recognized industry standards that promote safety and reliability. This 

program is accredited by the American National Standards Institute, or ANSI, the same organization that accredits similar programs at several national laboratories. 

Today, API has more than 600 recommended practices that are 

used by the industry throughout the world. These were developed 

with technical experts from Government, academia, industry, and 

the public, and are referenced more than 430 times in Federal and 

State regulations, covering multiple Government agencies, including the Pipeline and Hazardous Materials Safety Administration. 

In our experience, performance-based standards which provide 

adaptable frameworks for conformance enable the industry to significantly advance safety by addressing issues such as technology, 

management systems, best practices, and training in an efficient 

manner. 

As an example, our recently completed recommended practice 

1173 helps pipeline operating companies establish a culture of safety through the development of the pipeline safety management system. 

Beyond our work on standards, API remains committed to regulatory structures that promote safety, environmental protection, 

and responsible operations. We continually look for ways to collaborate with regulators to cooperatively address challenges in the industry. We strongly support the adoption of a performance-based 

regulatory model which gives operators flexibility in implementing 

comprehensive programs to effectively address risks associated 

with a facility or company’s unique operations. 

However, we are concerned that recent regulatory action by 

PHMSA, including the natural gas transmission and gathering 

lines rule, the hazardous liquid pipelines rule, and the underground natural gas storage facilities rule are too prescriptive in 

their approach. We strongly encourage PHMSA to modify these 

pending rulemakings to ensure that any actions taken to advance 

safe operations are based on the most current information and utilize the latest technologies and techniques. 

12 

Certainty and consistency in a regulatory process is of critical 

importance to oil and natural gas operators, especially when it 

comes to the development of energy infrastructure projects. Oil and 

natural gas operators typically look at 10- to 20-year planning horizons, based upon individual analyses and contractual agreements 

with customers. The impacts of large regulatory and policy swings, 

particularly those that are poorly designed, can create a chilling effect throughout the industry that stifles growth and ultimately negatively affects consumers throughout the Nation. 

We appreciate Congress’ recent efforts on the passage of the 

FAST Act, and the President’s recent Executive orders on infrastructure streamlining and regulatory reform. Efforts like these 

recognize the need for infrastructure, but also advance safety, and 

are good for the industry, its workers, and the people who depend 

on the products we produce. 

I would like to suggest several actions that can be taken in the 

near term to ensure investment in critical energy infrastructure 

continues to keep pace with our country’s energy needs and demands. 

First, we strongly urge the President and the Senate to reestablish a quorum at FERC. Until a quorum is established, the review 

and permitting of natural gas infrastructure projects cannot occur, 

preventing critical infrastructure projects from advancing. 

Second, we urge the President to move forward with appointing 

leadership at agencies like PHMSA that have a key regulatory role 

over energy infrastructure. 

And finally, we urge Congress to hold Federal agencies and 

States accountable to fulfill their obligations and timelines under 

the established permitting processes. 

Let me close by reiterating that API and the oil and natural gas 

industry are committed to delivering 100 percent of its products to 

their destinations without incident. We look forward to continuing 

our work with Congress and the administration to ensure that we 

build and maintain an energy infrastructure system that continues 

to advance safety, and allows American families and businesses to 

take full advantage of our Nation’s energy renaissance. 

Thank you for having me today, and I look forward to answering 

any questions you may have. 

Mr. DENHAM. Thank you, Mr. Rorick. 

Mr. Santa? 

Mr. SANTA. Good morning, Chairman Denham, Ranking Member 

Capuano, members of the subcommittee. My name is Donald 

Santa, and I am president and CEO of the Interstate Natural Gas 

Association of America, or INGAA. Our members, interstate natural gas pipelines, transport the vast majority of the natural gas 

consumed in the United States through an approximately 200,000- 

mile network of transmission pipelines. 

These transmission pipelines are analogous to the Interstate 

Highway System. In other words, they are large-capacity transportation systems spanning multiple States or regions. 

My remarks are focused on the rulemaking process at the Pipeline and Hazardous Materials Safety Administration. We all want 

PHMSA to be an effective regulator, and that includes the ability 

to promulgate important regulations on a timely basis. It also inVerDate Aug 31 2005 11:16 Sep 25, 2017 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 P:\HEARINGS\115\RR\4-26-2~1\25309.TXT JEAN
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cludes the ability to rescind legacy regulations that more recent 

rules have rendered redundant. 

Stakeholder dialogue is especially important when the subject of 

the rulemaking is a complex technical topic such as pipeline safety 

regulation. New rules should leverage stakeholder knowledge and 

expertise to facilitate the deployment of new technologies that may 

be more effective, more efficient, and less disruptive than older 

technologies that may be endorsed by existing regulations. 

The PHMSA rulemaking process has become unusually protracted. The case in point is the proposed natural gas transmission 

and gathering rule to implement the mandates in the 2011 pipeline 

safety law. 

This delay is the cumulative result of three flaws in the rulemaking process. The first is the failure to embrace consensus-building as an early step in developing the proposed rule. The second 

is the agency’s choice to address too much in a single rulemaking. 

The third is the prefiling process used by the White House Office 

of Management and Budget, which compounded the consequences 

of PHMSA’s choices. 

The natural gas transmission and gathering rule is a gigantic 

proposal that assembles what could be 16 separate rules into 1 

rulemaking, some of which were in response to congressional mandates and NTSB recommendations. Many of these initiatives could 

have been and still could be implemented individually or in small 

groups in a comparatively short time, and thus complete many of 

the unfulfilled congressional mandates. We suggest that PHMSA 

avoid these catch-all rules in the future. 

INGAA suspects that PHMSA bundled these initiatives into a 

single mega-rule out of concern that it would not succeed in getting 

OMB approval for the full array of separate rules needed to implement applicable mandates and recommendations. 

The OMB prefiling negotiation is an unnecessary added layer of 

review since the APA notice and comment process provides ample 

opportunity to vet the merits of a proposed rule and its associated 

cost-benefit analysis. Without its creation, the use of the OMB prefiling process expanded during the prior administration. We urge 

the new administration to scale back the OMB prefiling obligation. 

Another opportunity for improvement concerns PHMSA’s recent 

use of interim final rule authority. While an IFR may be appropriate in some cases, it produced a flawed underground gas storage 

rule. The underground gas storage IFR includes clear mistakes 

that could have been identified and easily fixed, had the normal notice and comment procedure been used. Instead, those mistakes 

now are part of a rule that took effect 30 days after publication. 

PHMSA’s regulations also provide for something called a direct 

final rule, which can be an alternative to an IFR when PHMSA 

adopts a standard developed under a consensus process. With a direct final rule there is front-end buy-in and communication with 

the stakeholders. A rule is issued with a proviso that will become 

final, unless there is a significant objection. 

The Pipeline Safety Act requires that a safety standard be practicable and designed to meet gas pipeline safety needs and protect 

the environment. Achieving this balance requires PHMSA to consider outside input. Yet PHMSA recently seems to avoid seeking 

14 

this input in the formative stages of its rulemaking initiatives. This 

is unfortunate, especially because PHMSA has the means to do so, 

via the Gas Pipeline Advisory Committee. 

In conclusion, let me emphasize that INGAA continues to support PHMSA’s completion of the rulemakings to implement the various statutory mandates for new regulations. We suggest that the 

end results of PHMSA’s rulemakings can be improved with better 

stakeholder outreach and involvement, and with internal improvements to the regulatory process. 

The pitfalls that have undermined the pending natural gas 

transmission and gathering rule and the underground gas storage 

IFR hopefully can be avoided in future rulemakings. We also suggest that it is not too late to apply the lessons learned to the development of final rules in these two proceedings. It is important for 

natural gas pipeline operators to have the certainty that will come 

with finalizing these regulations. 

Thank you once again for the opportunity to testify today. 

Mr. DENHAM. Mr. Tolman? 

Mr. TOLMAN. Good morning, Chairman Denham, Ranking Member Capuano, Chairman Shuster, and Ranking Member DeFazio. 

As you said, my name is John Tolman. I am a vice president and 

national legislative rep for the Brotherhood of Locomotive Engineers and Trainmen, a division of the Rail Conference. I am also 

a locomotive engineer, and I have been in the industry for 45 years. 

In the last 20 years I have been working on safety issues. I have 

seen firsthand problems that we encounter when our Nation’s railroads and other infrastructure are not properly maintained. Safety 

is the number-one issue of the railroad industry. It is also the number-one issue for the unions, across the board. 

According to FRA study data covering the periods of January 

2016 to January 2017, accidents in the rail industry cost nearly 

$300 million. Included in this number are 1,500 derailments, 10 

collisions, 70 other types of incidents, and 48 injuries. The railroads 

could do much better in the area of human factors by ensuring that 

advances in technology are implemented with deliberate speed, and 

not used as a justification for downsizing the workforce. 

If the issue of fatigue on the Nation’s railroad is not addressed 

in the near future in a serious and fundamental way, catastrophic 

accidents will not cease. Technologies such as PTC [Positive Train 

Control] alone will not solve the problems. PTC will do much to 

make rail operations safer, but it is not and will not—is not designed to prevent all collisions. Crews on freight trains work at 

random times and are on call 24/7. A two-person crew provides a 

level of safety that doesn’t need a study to prove it is safer than 

a single-person staff. It is just common sense. 

One can’t reduce the fatigue discussion and problem to one single 

sleep disorder, sleep apnea. Sleep apnea does not begin to explain 

the causes of fatigue in the rail industry. And that means that a 

sleep apnea program cannot deliver the silver bullet for solving 

challenges posed by fatigue. 

Another issue that we are dealing with presently is at least one 

of the four largest class I railroads is now posing a concept they 

refer to as ‘‘super pool,’’ where train and engine crews could be exVerDate Aug 31 2005 11:16 Sep 25, 2017 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 P:\HEARINGS\115\RR\4-26-2~1\25309.TXT JEAN
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pected to know territorial physical characteristics of up to 1,500 

miles of railroad. This is drastically increasing safety risks. 

There is also the issue of rail carriers’ repeated resistance to regulations that would govern the installation of electronic-controlled 

pneumatic brakes. Conventional brakes have been in use today for 

over 150 years. They work. But clearly, there’s newer and better 

technology available that can slow and stop trains up to 70 percent 

faster, and make it easier and more efficient to stop trains quicker 

and safer in the event of an emergency. 

The history of the railroad industry demonstrates clearly that 

you can’t deregulate your way to improve infrastructure. When I 

entered the railroad 45 years ago, one of the first things I was told 

is that every safety law, regulation, and operating rule was written 

after some major accident. In my experience, that has proven true. 

The only reason we have automatic couplers, power brake systems, 

signals, and train control is because Congress enacted laws, and 

this very Congress right here enacted laws to require that the railroads implement those safety appliances. 

Every such effort was fought tooth and nail by the industry, 

which employed the very same arguments they make today: ‘‘We 

strongly reject the notion that regulatory review should be predicated upon a simple mathematic cost-benefit analysis.’’ Such a narrow view reduces lives and limbs of rail workers and members of 

the public to merely the cost of doing business. 

I have worked with the chairman of this committee for many 

years, and many congressional members on this committee. I know 

that you all have great intentions, and want to get things done. So 

let’s work together, let’s get the transportation system into the 21st 

century. Let’s put thousands of people back to work. Let’s increase 

the gas tax for infrastructure investment. And let’s build the transportation infrastructure that is better and safer than our forefathers created. Thank you very much. 

Mr. DENHAM. Thank you, Mr. Tolman, and thank you to each of 

our witnesses for your opening statements. 

The first question I have—obviously, we have had concerns about 

the implementation of a variety of different pieces of legislation. 

But specifically, the FAST Act and the PIPES Act, I would like to 

hear from each of you on how you think that implementation process is going, whether or not it is—we are behind schedule, ahead 

of schedule, whether they are following the true intent of law. 

Ms. Darr, I would start with you. Just open, frank opinions 

on—— 

Ms. DARR. Yes. We are OK. We are OK with it. We think that 

things are going apace. We don’t want to make any suggestions or 

comments at this time. 

Mr. DENHAM. Thank you. Mr. Nober? 

Mr. NOBER. We would say that there are a number of different 

parts of it that would affect us. The STB has completed their implementation of the FAST Act. I think we would like to see some 

of the permitting reforms move faster and be more widely implemented with respect to more modes. And that cuts across different 

industries. 

16 

And obviously, the FRA is taking on a number of the different 

FAST Act provisions, and we think it is trending in the right direction there. 

Mr. DENHAM. Thank you. Mr. Rankin? 

Mr. RANKIN. Thank you, Mr. Chairman. Generally speaking, the 

Interested Parties are pleased with the way the FAST Act is being 

implemented. I did mention both in my written and oral testimony 

that we believe some improvements can be made, specifically with 

the special permits and approval process. This is crucial for us in 

the long run and, frankly, crucial for many, many members of industry. 

We do believe improvements can be made. But, generally speaking, things are moving forward well. 

Mr. DENHAM. Thank you. Mr. Rorick? 

Mr. RORICK. With regard to the PIPES Act, we were a little disappointed—quite disappointed that it has been moving as slowly as 

it has. There is still a number of the 2011 mandates with PHMSA 

that are still outstanding that we feel should move forward. 

The FAST Act is doing better. I think there are still a number 

of pieces in the FAST Act, like title 41, that need to be worked out, 

specifically. But we have a more positive opinion of the way the 

FAST Act is being implemented. 

Mr. DENHAM. Thank you. Mr. Santa? 

Mr. SANTA. We are much more familiar with the PIPES Act. As 

I mentioned in my testimony and oral statement, we think that the 

process that PHMSA has used has been somewhat flawed, and I 

think is one of the reasons why we have seen so little progress, in 

terms of the promulgation of the rules to implement those mandates. 

As Mr. Rorick noted in his testimony, we think that it takes an 

overly prescriptive approach that is not consistent with a lot of the 

performance-based initiatives that PHMSA has used, for example, 

on integrity management. Nonetheless, we do support promulgation of those rules to implement the mandates that came out of the 

Congress. 

Mr. DENHAM. Thank you. Mr. Tolman? 

Mr. TOLMAN. One of the issues that we are concerned about is 

inward-facing cameras. We don’t believe that that adds anything to 

safety in the industry. We have been—the Brotherhood of Locomotive Engineers has been around for over 150 years, and we don’t 

see that adding anything, any safety. In fact, fatigue being the 

number-one issue, this only increases fatigue through stress of having a camera on you 24/7. 

Mr. DENHAM. Thank you. And I would also ask each of you what 

you think the most effective approach to regulation is, performance-based regulations or prescriptive-based regulations. And when 

are each of those more appropriate than others? 

Ms. Darr? 

Ms. DARR. I think, you know, when I speak on behalf of my industry, I think of small businesses, and I think of prescriptions like 

the one to my right. And, you know, you think about railroads that 

have as few as eight employees. And when the Government starts 

to get very prescriptive, and the result is 26 manuals like this for 

17 

8 people that wear many hats to digest and go forward and implement and to be held accountable to, performance-based is best. 

I think the people on the ground know their industry, they know 

the tasks, and they feel a commitment already to safety. They want 

everybody to get home safe at night, and so they are going to do 

the right thing, and they know what the right thing to do is. 

Mr. DENHAM. Thank you. 

Mr. Nober? 

Mr. NOBER. Well, at BNSF and in the rail industry I think we 

strongly believe that, ultimately, performance-based regulations 

mirror the way that we operate our companies, which is assuring 

a safe outcome. 

You know, a good example of that would be, for example, the 

PTC statute that Congress passed. While we disagree with the 

statute, it ultimately was a performance measure, right? It said 

you can’t operate a train without a working PTC system. And how 

we meet it ought really to have been left to the industry to figure 

out. 

Now I will say that performance-based measures can be challenging to come up with what the right performance measures are. 

I will say that there are places where standards can be helpful, 

particularly on things like equipment, like the tank car rule, for example, where a Federal standard actually is helpful, particularly 

when you are looking at different commodities and interstate transportation. 

But, by and large, we think, for safety performance overall, that 

performance-based regulations should be the way that we measure 

things. 

Mr. DENHAM. Thank you. Mr. Rankin? 

Mr. RANKIN. Congressman Denham, back in 1990 the Department of Transportation adopted a rulemaking, HM–181, which 

was, in fact, performance-oriented in nature. And, indeed, performance standards are the way we feel things ought to be addressed 

generally, across the board. There are certainly some prescriptive 

requirements that are required. But, generally speaking, performance standards are the way to go, specifically in my area of expertise, packaging, for example. All testing is performance-based. 

So, we certainly believe that is the way to go, and the IPs have 

supported that over the years. 

Mr. DENHAM. Thank you. 

Mr. Rorick? 

Mr. RORICK. As Mr. Rankin indicated, there is a time for prescriptive-based regulations. However, generally, as an industry, we 

believe performance-based regulations are much more effective, 

particularly with regards to safety. They are more comprehensive, 

they are more flexible. Prescriptive-based regulations tend to be 

very inflexible, and oftentimes they create, effectively, what is a 

ceiling, where companies try to meet that ceiling, meet the regulation, and then stop. Whereas, performance-based regulations create 

a floor where companies meet the floor, then develop programs that 

go above and beyond that. 

The other thing that we see is, as new technologies come out, 

prescriptive-based standards tend to restrict, as Mr. Santa indicated, and you are stuck using older technologies, whereas performVerDate Aug 31 2005 11:16 Sep 25, 2017 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 P:\HEARINGS\115\RR\4-26-2~1\25309.TXT JEAN
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ance-based, you are constantly reviewing your programs and then 

adding new technologies into new techniques, wherever they are 

available. 

So—and then the last thing I will mention about performancebased standards, too, as I mentioned in my testimony, that it accounts for the flexibility to meet the needs of a unique facility, 

unique company. So it doesn’t assume that a one-size-fits-all—and 

you can make sure that you are looking at the appropriate risk factors that you need to address, and not spreading yourself looking 

at things that are low-risk and low-probability issues. 

Mr. DENHAM. Thank you. 

Mr. Santa? 

Mr. SANTA. We also support performance-based as the approach. 

I think that the integrity management rules are a good example of 

that, and adopt very much an approach that encourages a sophisticated approach to risk management. 

We also encourage regulations based on the standards that come 

out of the accredited standards development processes. These are 

very transparent processes. They include academics, industry, regulators, and what comes out of them, we think, provides the basis 

for getting through the rulemaking process in a very efficient manner. 

Mr. DENHAM. Thank you. 

Mr. Tolman? 

Mr. TOLMAN. I guess, from our perspective, it depends on the 

rule. Notice and comment period in rulemaking is very helpful. In 

all cases, the bottom line is to make sure it is—we are working on 

safety-enhancing across the board. 

Mr. DENHAM. Thank you. 

Mr. Capuano? 

Mr. CAPUANO. I am going to let Mr. DeFazio ask questions first. 

Mr. DENHAM. Mr. DeFazio? 

Mr. DEFAZIO. Thank you, Mr. Chairman. As might have been 

noted, I am particularly concerned about lithium batteries on aircraft. This is the photo that I spoke of, where the pilots, you know, 

attempted to make an emergency landing, but were overcome by 

smoke. And that is the result. Luckily, they didn’t crash into a 

heavily populated area and kill hundreds of people on the ground. 

As the manufacturers have said, these planes are incapable of 

withstanding fire, and there are no current suppression systems 

that work in the hold of an aircraft. Now, that particular aircraft 

was a 747 cargo. 

So, Mr. Rankin, I am puzzled. I would say Administrator 

Dominguez at PHMSA was probably the first good Administrator 

in my recent experience, and it seemed to me she was trying to 

clean up a really incredibly dysfunctional agency, and actually implement and put forward rules from things that Congress ordered 

6 years ago. That was big progress down at PHMSA. 

But in your testimony you think we should take this dysfunctional agency that currently doesn’t have a head, and we should 

put them on the ICAO board, which relates to aircraft and hazardous materials transport on aircraft, as opposed to the FAA, who 

are experts in aviation and aware of the fact that, when you are 

19 

flying at 40,000 feet and a fire that cannot be repressed is a really 

bad thing. 

So, why do you think that PHMSA can do a better job than the 

FAA? 

Mr. RANKIN. I appreciate the question and I appreciate your concerns, Congressman DeFazio. 

The statement we made in our testimony and which, of course, 

we stand by, is that PHMSA should take the lead in this matter, 

and also should have the seat at ICAO. The reasons for this are 

several. 

First, PHMSA is the recognized competent authority or lead 

agency for hazardous materials transportation, globally. So, in any 

respect, when any foreign government is interested in a movement 

into or out of the United States that deals with hazardous materials of any kind, PHMSA is the agency to which they go for expertise. And of course, as you know, an individual from PHMSA, Mr. 

Duane Pfund, currently chairs the U.N. Subcommittee of Experts 

on the Transport of Dangerous Goods, and is recognized as one of 

the leading authorities in hazmat transportation, globally. 

Secondly, the air movements of hazardous materials are, generally speaking, multimodal in nature. Such movements usually involve transport to an airport, loading on a plane, transport by air, 

unloading—— 

Mr. DEFAZIO. OK. I have only got 2 minutes left, but, OK, you 

have given a couple of reasons. That is good. But I have got to say 

I still disagree, and I am hopeful that in the next FAA reauthorization we can correct this discrepancy. When we have something 

going in the hold of an airplane designated as hazardous we 

shouldn’t give a dysfunctional bureaucracy the authority to be our 

lead at the International Civil Aviation Organization, about which 

they know nothing on these matters. So, in any case, thanks, but 

we do disagree on that. 

One other question. Do you support, or does your association support the promulgation of the rule that would just make us internationally consistent with ICAO? Because elsewhere in your testimony you are talking about the need for international consistency. 

Mr. RANKIN. In my capacity here today representing the Interested Parties, the organization has not taken a specific position on 

this. 

Mr. DEFAZIO. OK. 

Mr. RANKIN. I would be happy to determine that with the 

group—— 

Mr. DEFAZIO. OK. 

Mr. RANKIN [continuing]. And get back to you in written form. 

[The information follows:] 

20 


Insert offset folio 6 here 25309.006
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Insert offset folio 7 here 25309.007
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Mr. DEFAZIO. OK, thank you. 

Mr. Nober, your railroad has invested a tremendous amount of 

money in PTC, despite the fact that you had concerns about implementing nationwide PTC. 

You know, a number of the other freight railroads have invested 

substantially, but they are not as far along as you are. Our commuter railroads, particularly New Jersey Transit and others, have 

been absolutely nonresponsive. They are pushing hard for a rollback. Would your railroad support a rollback saying, ‘‘Oh, just forget about it, we are not going to go operational, you don’t need 

PTC’’? 

Mr. NOBER. Well, at BNSF, we are planning on having all of our 

physical assets in the ground and our system up and running by 

the end of 2018. We are taking advantage of some of the provisions 

in the FAST Act that you all passed to allow us to have testing and 

operation go on, and work out bugs beyond that. 

So, at our railroad, we are planning on meeting the deadline and 

going forward. And, obviously, we are at the point in our implementation where bugs are almost on a one-off basis, right? Every 

month, we look at a very rigorous process for each train start. And 

then, if PTC worked, did it work properly the whole way through? 

If it failed, where in the sequence of events did it fail, and then 

sometimes ferreting out where in the system of systems the bug 

was. 

So, I can speak for us that we believe in going forward. I know 

that the passenger railroads and others have had resource issues, 

and, you know, I can offer for ourselves that we will meet the deadline, and we are prepared to go forward. 

Mr. DEFAZIO. OK. So you feel confident, despite the ongoing programming and other issues, that it will be a functional system, ultimately? 

Mr. NOBER. We believe so. But there are still some big challenges 

to go. 

For example, we are just now beginning interoperability. And we 

and UP, for example, have exchanged some locomotives, and are 

just beginning that process. 

So if you take just within BNSF the various systems that have 

to go together, if now we have to do the same kind of process with 

another railroad, it is going to be a very manual and labor-intensive process to work out all these bugs. We believe that we will, 

we believe that it will work properly. 

But again, if we are at 85 percent effective, or somewhere to that 

effect now, where we are in BNSF, that still means we run 1,500 

trains a day. So 15 percent of those is a significant number of 

trains that are having issues. And so those are a lot of—in the colloquial, the scientific term—bugs to work out. But we will get 

there. 

Mr. DEFAZIO. OK. 

Mr. NOBER. I am confident that we will. 

Mr. DEFAZIO. All right. Thank you. 

Thank you, Mr. Chairman. 

Mr. DENHAM. Thank you, Mr. DeFazio. 

Mr. Duncan? 

23 

Mr. DUNCAN. Well, thank you, Mr. Chairman, and thank you for 

the great job you do chairing this subcommittee. 

You know, I know that with only 4 percent of the world’s population, we buy 22 percent of the world’s goods. And I read recently 

that 58 percent of the people in this world have to get by on $4 

or less a day. The standard of living that we have in this country 

is phenomenal, and I have long been convinced that the average 

person doesn’t really realize how important our freight rail system 

is to that standard of living, getting goods and services—getting 

goods to market to—much more quickly and efficiently and, therefore, cheaper than they would otherwise be. 

And, you know, I am in my 29th year in Congress. I have served 

on four different committees, I have chaired many hearings, participated in hundreds of hearings. Almost all of those hearings 

have been to attack some agency or industry or problem. 

So, when we have something that somebody has done really well, 

or some really good news, I think we should point that out. And 

I read in the—in our briefing memo it says since 1980 the rate of 

freight train accidents and incidents per million train miles has 

fallen 88.2 percent. Railroad employee on-duty fatalities, injuries, 

and illnesses have declined 91.7 percent. 

The freight railroads attribute their safety improvements in part 

to the Staggers Rail Act of 1980, which partially deregulated the 

industry and restored the industry to financial health. Since Staggers was enacted, the freight railroads have invested $600 billion 

in their systems. I think that needs to be commended. 

I noticed in Mr. Nober’s testimony he said that, by all the measures, recent years have been the safest in rail history. I think 

that—I think we need to point out something like that when it occurs. 

I do have a couple of questions. Mr. Nober, I understand you are 

here because BNSF has been a leader in regard to some of the safety requirements, particularly on PTC. And Mr. DeFazio said he understood you had spent a tremendous amount on that. How much 

has BNSF invested or spent on PTC since we started with it? 

Mr. NOBER. Well, we will expect, by the time we are finished putting all the assets in the ground, that our investment will be close 

to $2 billion. 

Mr. DUNCAN. $2 billion? 

Mr. NOBER. $2 billion dollars. So—— 

Mr. DUNCAN. And that is—and that, you said, is going to be by 

the end of 2018? 

Mr. NOBER. We should have the system up and operating. And 

as I perhaps didn’t emphasize clearly enough to—Congressman 

DeFazio is now gone—that, you know, we will meet the deadline, 

and we oppose extending it. 

Mr. DUNCAN. Ms. Darr, is there a significant difference between 

the safety record of the short line railroads in comparison to the 

big guys? 

Ms. DARR. Thank you, Congressman. Last year was the safest 

year in short line railroad safety history. So I think that we are 

on a very positive trend, and I think it is a result of a number of 

the changes that our member railroads have made over the years, 

and their commitment to safety. 

24 

In addition, the—I want to mention the Short Line Safety Institute, that we appreciate the support of Congress in helping to fund 

that. And that is focused on going out and assessing every one of 

our member railroads when, you know, we can get to each one of 

them, and looking at the way that they have ingrained a safety culture in their workforce, and making sure that it is at a strong and 

sustainable level throughout the industry. So I think you will continue to see that trend upward. 

Mr. NOBER. And, Congressman Duncan, if I could just add one 

thing. 

Mr. DUNCAN. Yes. 

Mr. NOBER. I mean it is obviously the policies set forth by this 

committee and the Congress 35 years ago to begin to allow deregulation that have allowed companies like BNSF to have the financial 

health to invest that kind of money, those kinds of assets, in safety 

systems that we are able to do. And so it is all part of an overall 

holistic approach to the rail industry, where we are able to earn 

adequate revenues. And, through deregulation, we are able to invest in the reliability and the safety systems that have allowed us 

to have best ever safety results. 

Mr. DUNCAN. Well, that is an important point—important to 

point out, that deregulation, contrary to what some people say, 

doesn’t always mean that something is going to be less safe. In 

your industry it became even more safe. 

Ms. Darr, what about this training rule that we passed 9 years 

ago? Has that had an effect? What effect has that had on the short 

lines? 

Ms. DARR. It has—we actually were so concerned about the rule 

after we started the initial implementation and tested it out that 

we, for the first time in our history, sued the Department of Transportation for overly burdensome rules. 

So it has been a major focus of so many of our members. We 

have been trying to work with the Department to put off implementation of those rules, to make sure that the industry is prepared. We are in settlement talks with the Department of Transportation and trying to narrow down the focus of the rule. But it 

has taken a significant number of man-hours of our association and 

all of our members to try to get this tiger back in the cage. And 

it really, unfortunately, has diverted from a number of other safety 

priorities in the process. 

So, it was a very unfortunate ruling for our industry. 

Mr. DUNCAN. Thank you very much. My time has expired. 

Mr. DENHAM. Thank you, Mr. Duncan. 

Ms. Esty? 

Ms. ESTY. Thank you, Mr. Chairman. I want to thank all of you 

for being here with us today. 

My district is served by class I, short line, and passenger rail 

service in Connecticut. Connecticut is, by no means, one of the 

most active States for freight rail, but the industry provides wellpaying jobs for my constituents, and I place a great deal of value 

on the economic opportunity it provides. And, in fact, we have a lot 

of communities who want to seek expansion of rail service in my 

district. 

25 

But ensuring the safety of crewmembers, of communities, and 

passengers is tremendously important. And that is why we are 

here today. There have been a number of both high-profile and 

smaller crashes in the Northeast in the last few years, a number 

of which have taken place in my district, including two freight rail 

incidents in the last year in New Milford and Brookfield, Connecticut, involving short line. And, obviously, the high-profile incident recently—multiple—at Penn Station. So we still have a ways 

to go. 

I wanted to drill down a little bit on—more on the difference between performance standards and prescriptive, because I am hearing a great deal of discussion here about deregulation has led to 

these reductions. Yet, at the same time, Mr. Nober, you are talking 

about the importance of PTC and the importance of technology. If 

we have multiple technologies in, say, something like PTC, the 

interoperability, you are going to require some prescriptive efforts, 

or otherwise it is not going to be able to talk to each other. 

So, I would like—maybe Mr. Nober, you can start with how can 

we best have innovation and safety, and recognize sometimes we 

are going to have to make specific decisions? Because without that 

we are not going to get the safety that the public needs and demands. 

Mr. NOBER. Well, Congresswoman, I thank you for your question, 

and appreciate your concerns. And, as you said, there is a place 

for—in an industry like rail, with interoperability, with interchange, where cars go throughout the system, standards can be set 

that are uniform across the system, that can be a great help for 

a network like ours. 

On the other hand, we do have a number of individual safety 

mandates that go to railroads, and I listed several of them in my 

testimony, everything from how you originate a train, to how you 

inspect track, to how you look at each individual car, to how you 

investigate wheels, that are done a prescriptive way: ‘‘You will look 

at how reflective the tape has to be on the side of cars,’’ or that 

are done based on time: ‘‘You will inspect this each and every 

time.’’ And railroading is quite diverse. 

You have passenger rails, like you said, in the Northeast. In the 

West, where we operate, we can have trains that are 8,000 or 

10,000 feet long going through very unpopulated areas, which 

would stand in stark contrast to a heavily populated area, like Connecticut. And the safety rules that should apply to those ought to 

be able to take into account the different environments in which 

they are operating. 

So, when we talk about performance regs, it is to try to come up 

with a safety outcome that we are looking for—for example, in 

track or in inspections—that looks at how often—how well maintained are the cars, how often are they having problems, how often 

are derailments happening, as opposed to ‘‘You will inspect them 

every so often, regardless of what the needs are.’’ 

And so, I do think that it is hard to do. There is no question 

about that. It is more difficult to measure and regulate on a performance basis than it is to regulate based on what we would call 

command and control, but activity-based, right? Because if you are 

a regulator—and, you know, I have run an administrative agency, 

26 

it is much easier for them to say, ‘‘We are going to ensure that you 

do X,’’ and if you do X, then they can say, ‘‘Hey, we have done our 

job.’’ 

Ms. ESTY. Although I think part of it is you have all talked about 

how there has been improvement in safety with this combination 

of the regime we have right now, which is some performance-based 

and prescriptive. So you can understand concern on the part of 

Members of Congress who have lines running through their district 

of moving away from a system that has, in fact, been improving 

safety. 

So that is—you are asking us to ‘‘trust us,’’ trust us—some of us 

recently were on a trip to India, a place where there is a lot of 

issues with rail safety. Many other parts of the world the market 

clearly does not work to provide safety. And you can understand 

why we have concerns with the ‘‘Just trust us’’ attitude, ‘‘We have 

a good culture,’’ because you look around the world, that is not 

what happens if the market alone determines. And, obviously, that 

improvement in safety record has been a combination of those two, 

and I think it is unwise to suggest that it really—that it could be 

without prescriptive, as well. 

Mr. NOBER. Well, we would like to say at BNSF that we are 

very—we think the freight rail system in the United States, which 

is principally deregulated—not completely—is the safest and the 

best in the world. And when we look at the way we operate our 

system, safety and reliability are the two most important things we 

have. Because if we want to grow, if we want to draw freight from 

the highway and bring it on to rail, which should be a policy goal 

that all of us should share, then we have to be able to provide reliable and safe service for our customers. And the way we do that 

is through ensuring equipment integrity, it is through ensuring 

track integrity, and it is through ensuring that, you know, our people are able to go home safely every day. 

There is probably no place on our railroad that we inspect at 

merely the FRA minimum. Now, the way we inspect it might be 

different, but we probably go beyond that in virtually every mile 

of our system. And in our heavily traveled, most, you know, core, 

dense routes, we go multiples beyond it. We do that because the 

importance of having one of our transcontinental mainlines operating and be able to provide the service that it provides is of paramount importance to us. 

So, just 2 weeks ago, we had an incident. It didn’t involve our 

railroad. We had a grain elevator catch fire near Hereford, Texas, 

on our transcontinental mainline. And the fire and the resultant 

danger from the chance of explosion left that line out for about 20 

hours. And we had over 100 trains delayed that were stopped because of that, because it was unsafe to go past it. 

Obviously, safety is first. We would never put any of our crew or 

our people in harm’s way. But the consequence of an outage like 

that is tremendous for us, as well. 

Ms. ESTY. Well, thank you, and I see my time has expired. But 

I would like to follow up with some further questions on some of 

these issues. Thank you very much. 

Mr. DENHAM. Thank you, Ms. Esty. 

Mr. Farenthold? 

27 

Mr. FARENTHOLD. Thank you, Chairman Denham. And I worry 

about Washington bureaucrats coming up with regulations from 

the top down, and like to see stuff actually come from the bottom 

up, or see industry and the public more involved. 

Mr. Santa, in your testimony you talk a little bit about the Gas 

Pipeline Advisory Committee. Could you tell me a little bit more 

about how that works, and their involvement in the regulatory 

process? 

Mr. SANTA. Yes, sir, Mr. Farenthold. The GPAC, or Gas Pipeline 

Advisory Committee, is created by statute. It is a Federal advisory 

committee. It has equal representation from industry, the public, 

and regulators from both the State and Federal level. The purpose 

of it is to provide input to PHMSA in connection with its rules and 

its processes. In some ways it effectively functions as a peer review 

group for what PHMSA proposes. 

PHMSA is utilizing the GPAC to review the pending gas pipeline 

and gathering rule. We only wish that PHMSA had involved GPAC 

earlier in that process at the formative stages of coming up with 

that rule. And I think that probably would have produced a better 

rule. As a matter of fact, the GPAC was utilized in that manner 

in the development of the integrity management rule back in the 

early 2000s, and I think it produced a good result. 

Mr. FARENTHOLD. All right, thank you. 

Mr. Nober, you were talking about how you used new technologies for inspecting your track. I have actually seen some of 

those technologies demonstrated. And I hear this from a variety of 

folks in a variety of industries, that the regulations that are in 

place at the Federal level are not keeping up with technology. 

So, in addition to your enhanced technological screening method 

with cameras and vibration sensors and things like that, you are 

still stuck with old regulations. Do you have any thoughts on how 

we could develop a process, when technology evolves, that we can 

get rid of or modify some of the existing regulations to take better 

advantage of the technology to create a safer environment at a 

lower cost? 

Mr. NOBER. Well, Congressman, that is an excellent question. I 

would say the first step is to change the mindset of the regulators 

to be able to accept that technology can improve safety, and it is 

not in lieu of or a substitute for a safer method of doing things. 

A good example would be track inspection. The FRA mandate for 

track inspection would be a visual inspection, so people in a high 

rail, riding and looking at it. And that certainly catches a number 

of kinds of defects, and is an important part of inspecting track, 

and we do that more than the FRA minimum in most parts of our 

system. 

But beyond that, we have developed, first, geometry cars that 

have sensors that are able to look at and evaluate the inside of rail, 

and sense—are there any internal defects that could grow into the 

kind of problem, given the weight and the density and the mass of 

rail traffic that is on it, or broader defects that could create 

derailments? 

Now, we have geometry cars that are able to do that. And we 

have now a manned geometry car. And people are in the geometry 

car. And if they spot a defect, they have to stop and mark it and 

28 

send somebody out immediately to be able to go and remedy it. And 

again, that is a laudable goal. 

But we also have developed unmanned geometry cars. And the 

benefit of those is that they can go on the back of any train. And 

so, therefore, using an unmanned geometry car, we can inspect the 

rail much more often. But implementing those has been difficult, 

because the existing regs would require that we stop and get out 

and mark it, and immediately remedy any defect. 

Mr. FARENTHOLD. It can be adequately marked with a GPS. 

Mr. NOBER. And so we are still working through the GPS. It is 

not 100 percent settled yet. But we think more inspection will create a safer rail, and that we will then dispatch our maintenance 

of way people to go out and fix the problems that are found, because we are able to inspect things more. 

So, rather than be a substitute for people, we think it will enhance safety. But the regulatory framework has to evolve to be able 

to allow and enhance that. And again, all of these are slightly different, they all have benefits, they all have downsides. We call it 

the swiss cheese approach. But if you layer all of these different 

safety systems together, overall you will catch more defects—— 

Mr. FARENTHOLD. All right, thank you. And I have one more 

question for Ms. Darr. 

Now, Mr. Tolman is talking a lot about safety and fatigue and 

the necessity for a two-man crew. Is that different in the short line 

industry than it would be with the class I? And how would you see 

that affecting your industry, a two-man-crew rule? 

Ms. DARR. Thank you for the question, Congressman. It is an excellent question. And I would say that it has a much more serious 

impact on short lines, because of the small staff. So when you are 

taking two men, you know, to operate a locomotive, then you are 

taking, conceivably, one of them away from some other critical operation of the railroad. 

So we are very concerned about this, and we do find it ironic 

that, at the same time that DOT issued a regulation calling for 

two-man crew, they were also conducting a study, I believe, with 

Duke University to look at whether or not crew size even had an 

impact on rail safety to begin with. So it seems to us to be a classic 

example of putting the cart before the horse, and it was confusing, 

at best. 

Mr. FARENTHOLD. All right. Well, I see my time has expired. 

Thank you very much. 

Mr. NOBER. If I could just add that—— 

Mr. DENHAM. Thank you, Mr. Farenthold—— 

Mr. NOBER [continuing]. In addition, that—— 

Mr. DENHAM [continuing]. Mr. Capuano? 

Mr. NOBER [continuing]. DOT was funding autonomous truck 

technology, as well, to have no drivers in it. 

Mr. DENHAM. Mr. Capuano? 

Mr. CAPUANO. Thank you, Mr. Chairman, and I want to thank 

the panel for being here and for your testimony. 

But like a lot of these hearings, the truth is that not much of 

what you said I would disagree with. I am for effective, robust, 

clear, least-intrusive, safe, and reasonable regulations, and nothing 

more. But, then again, nothing less. So I am glad nobody said all 

29 

regulations are bad. You are right. We need some regulations. 

Where they should be? Fine. 

Ms. Darr, a regulation that thick, you should have called me. I 

don’t even know what is in there. I am hoping it is not just one 

big print. 

[Laughter.] 

Mr. CAPUANO. I mean that is not what we want. And, look, I am 

not afraid of regulations, but I am not in favor of over-regulation. 

And I agree that some regulators, to cover their own Administrator’s back, they over-regulated. I couldn’t agree more. But those are 

details. And, you know, most of us are here to work out the details. 

And I think, as was pointed out, what we came up with with 

PTC was a pretty good compromise. It was like we want it. We 

gave the industry a period of time to do it, no one did it, and we 

kind of then required them to do it, but we did it in a way that 

says, ‘‘You guys figure it out, but you got to get it done.’’ And it 

seems to be good. 

I am really happy to hear that people are reasonably satisfied 

with the FAST Act. And actually, the comments about the PIPES 

Act, without details, I haven’t been terribly thrilled with the implementation of the PIPES Act. And you want to criticize PHMSA? 

You go right ahead, because you got Peter DeFazio right after you, 

and me right after him. They have been a problem for a long time. 

I agree with what Peter said. We did have one good Administrator 

for a little while, she is gone, and we will see what happens. 

So, all that being said, thus far I don’t see a whole lot of controversy here. And, though I love seeing you guys, I am wondering 

what we are doing here. But that is OK. 

But because these kinds of testimony tend to be generic, apple 

pie, and puppy dogs, you know, obviously, my ears are always attuned to what is floating around, and I have been hearing things 

like—that some bills coming out of certain areas—I really like the 

one that wants us to do advanced notices of proposed rulemakings. 

Advanced notices of proposed rulemakings? That seems a little redundant, to me. Why don’t we have preadvanced notice of possibly, 

maybe, someday regulation that I might want to think about 10 

years from now? 

I mean, come on, that is ridiculous. It is just a way to kill whatever you don’t like. I mean if the systematic problem is OMB, line 

up behind me. OMB has been a problem from day one. The process 

stinks. And I would be happy to kick them in the butt to get moving on it. What they do is nuts. 

I got to be honest with you, 1982, I think it was, we had a train 

derailment in my home city, and that train derailment released 

chlorine gas. And nobody died, but a lot of people got sick, and a 

big evacuation. The fire department didn’t know how to fight it, because there hadn’t been any training then. They put the wrong 

stuff on it, and it caused problems. 

Now I just presumed that every train carrying hazardous material would have emergency breathing apparatus on it, to be perfectly honest. And I found out not only is it not true, but the industry is fighting that. What are you, crazy? That is nuts. 

Now, you might want to argue exactly which breathing apparatus—and I am not the guy to answer that question—but I can 

30 

tell you there are 1,000 guys I can find in my district who will tell 

you exactly which one you should have that is the safest. You have 

it once, you don’t have to touch it again for a long time. It is not 

that big of an expense. Why would anybody fight having emergency 

breathing apparatus on a train that is carrying hazardous, deadly 

material? It makes no sense. And, to be perfectly honest, I am a 

little surprised to hear those kinds of things floating around. 

But, in general, I like it. The whole thing about performancebased rulemaking. Fine, sounds good. Again, motherhood, apple 

pie. We are all for performance-based, and I am all for it. I think 

the PTC thing is an example of that. But I am also glad to hear 

that some of you said that there is occasion for prescriptive regulation. 

And I think Mr. Tolman is right. I have only been on this committee for, I don’t know, 15 years or so. Every single regulation 

that I have seen has come after not one, but a series of disasters. 

I have not yet seen a regulation that was done before a disaster 

happened. And, yes, when you do that, sometimes things get a little overboard, and we have to readjust. I am for that. 

But I guess I don’t really understand what the difference of performance-based regulation is. What is so big about it? 

Mr. Tolman, can you tell me exactly? Why should I care whether 

it is performance-based or prescriptive, or alphabet soup? 

Mr. TOLMAN. You know, Congressman, thank you. In my mind, 

I don’t think it makes any difference, as long as we are advancing 

safety issues, truthfully. 

You know, you mentioned emergency escape breathing apparatus. You know, if it wasn’t for this committee, we wouldn’t even 

be discussing. In 2005 we had a major accident, a Norfolk Southern, where a switch was left open in dark territory. And dark territory, in my mind, shouldn’t even exist in the industry. 

Never mind that, the family—Chris Seeling was a 28-year-old locomotive engineer who was operating the train. It was a—switch 

was left open, they went in and struck a chlorine tank at 2 o’clock 

in the morning. The conductor knew enough—he was trained 

enough, talking about part 243, the training program—he was 

trained enough that he went upwind. The engineer went downwind. He was not trained. They both walked into the emergency 

ward together, and Chris Seeling, 28 years old, succumbed to chlorine inhalation. So did nine other people that—in the factory right 

next door to that chlorine tank car passed, as well. 

Two hundred yards away, two hundred yards away, there was an 

elementary school. Thank the dear God that this happened at 2 

o’clock in the morning, and not 2 o’clock in the afternoon. Because 

none of this would be discussing emergency escape breathing apparatus. 

The interesting thing that—you know, I have been doing this for 

a long time. I have investigated some major accidents throughout 

the United States. Rips your heart out to see one person or one injury. The carnage, when you go there—I did so many accidents that 

I felt like I was getting PTSD. I mean, honestly, I had to step 

away, and I don’t do them any more. 

But the passion for me is we need to prevent every single one 

of them, whether it is an investment in—the railroads, I applaud 

31 

them. PTC, they are spending billions of dollars. Why are they 

doing that? In 1968 the NTSB told the railroad industry they need 

to implement some form of PTC, some form of train separation 

technology. It took 49 years, and we are still discussing it. 

If it wasn’t for Congress, we wouldn’t be moving in this direction. 

I have been an advocate to the railroad industry all my life. Let’s 

work together. Let’s work on these safety issues. Don’t come to 

Congress. We can get them done together. We don’t need to sit here 

and discuss all our safety issues when we know damn right well 

we should be doing them together. 

Mr. CAPUANO. Thank you. My time is well over time. Thank you, 

Mr. Chairman. 

Mr. DENHAM. Thank you, Mr. Capuano. 

Mr. Rokita? 

Mr. ROKITA. Oh, thank the chairman for organizing us today. I 

had a couple of questions, didn’t know I was up next. Excuse me, 

let me find them here. 

Mr. Nober, I am interested in your testimony here, I am going 

to quote from it right away and get your reaction to it, because I 

think those are some questions that were asked of you. You said 

in your testimony that signal systems, grade crossing equipment, 

railcars, brakes, and locomotives have now microprocessor technology applications that monitor and report actual asset health. 

Regulations, nonetheless, still require visual inspections of these 

systems. And, while there is a role for visual inspections, regulations need to recognize the enhanced safety value of automated inspections and technical diagnostics, and build in appropriate operational flexibility. Can you further explain that? 

Mr. NOBER. Sure. Our locomotives these days are mini data centers. They have any number of sophisticated data systems on them. 

And, in fact, one of the challenges we have is always finding a 

place to install new systems, like the PTC computers that go in 

there. 

And what we do is we have wayside detectors that will see the 

impact of wheels. We have something called wheel impact load detectors that will basically test if a wheel is out of round at all. We 

have wayside detectors that will sense if there is any heat coming 

out of the bearings, so if the bearings have any issues. And so, all 

of these are automated ways of seeing if we have any of our operating systems out of order. 

Mr. ROKITA. Yes. 

Mr. NOBER. But we still have regulations that require us to visually inspect a locomotive every day, so we have five locomotives, 

and somebody has to go out and walk around them. We have to visually inspect trains after a certain number of miles. And in large 

land-area geography like we are, that can just take additional time 

to inspect an 8,000- or 10,000-foot train that we think adds very 

little value to what all of these redundant data systems are adding. 

So we are not saying that you should never have an inspection 

at the beginning of a train. But we are saying that some of these 

en route or intermediate inspections that were done back when we 

had the daily locomotive inspection, which was required back in the 

steam days, on today’s modern locomotives may not necessarily be 

the same and the right kind of test to do. 

32 

The brake inspections, I included an article from the Chicago 

Tribune from 35 years ago—— 

Mr. ROKITA. Yes, 1982. 

Mr. NOBER [continuing]. To show how difficult it can be to 

change longstanding sort of historical inspection requirements. 

And so, looking at what is the capability of modern equipment, 

what kinds of information is it giving, and what is the best way 

to evaluate that overall web of data, and then adjusting inspection 

requirements to meet that, we think is the best way to go forward. 

Mr. ROKITA. I mean is there a mechanism—I have to get moving, 

because I only have 2 minutes left—— 

Mr. NOBER. OK. 

Mr. ROKITA. Is there a mechanism where you can produce an alternate method of compliance, similar to what we might do in aviation, and say, ‘‘Look, we are going to do this, because we invested 

in all these sensors, so we are going to get rid of the intermediate 

inspections, visual inspections, throughout the day’’? 

Mr. NOBER. FRA has a waiver process, where we can go in and 

say, ‘‘Can you waive this requirement in this instance?’’ 

And we have worked with the FRA, and been able to do that. We 

think the waiver process is slow. 

Mr. ROKITA. Yes. How much does it cost to do a waiver process? 

Mr. NOBER. It can depend. Sometimes they can ask for a lot of 

data, sometimes they can ask for relatively little. It is the time. It 

can take 9 months or more to get a waiver done. 

Mr. ROKITA. All right, OK, thank you. Regarding non-Administrative Procedure Act guidance and Executive orders, such as informal actions by a regulator, what are your concerns with that? 

Mr. NOBER. Well, first of all, if there is a formal rulemaking, 

where there is notice and comment—and the ranking member referred to that earlier—you can have a chance to put information in, 

you can refute the assumptions of the industry, you can put more 

information in that can then be used to evaluate and ultimately 

challenge. 

If you have a guidance or an emergency order or a safety advisory, those are ones where the agency may consult the industry on 

it, or they may not. And, as a practical matter, for a company like 

BNSF, those are binding, because we—if we ever have an incident 

where the Federal Government has said, ‘‘Well, we think the proper inspection requirement, or the proper’’—— 

Mr. ROKITA. So we are in an environment now, like in many 

agencies, where guidance, although it is supposed to have no legal 

effect, actually has legal effect. 

Mr. NOBER. Yes, and—— 

Mr. ROKITA. It has procedural effect. 

Mr. NOBER. It has procedural, and because of tort liability—— 

Mr. ROKITA. Yes. 

Mr. NOBER [continuing]. If we go against the Government—— 

Mr. ROKITA. Do you have ideas to bifurcate that back to the way 

it was originally intended? 

Mr. NOBER. Oh, absolutely, we—— 

Mr. ROKITA. OK. Could you give them to me, privately? 

Mr. NOBER. Absolutely. 

33 

Mr. ROKITA. Thank you. And I have 5 seconds left for Mr. 

Rankin. 

Mr. Rankin, when talking about making sure that PHMSA is 

properly regulating the transport of hazardous materials, what do 

you define as hazardous materials? Is it only products categorized 

as regulated by the U.N., or what about group 3, group 2, group 

1? 

Mr. RANKIN. Forty-nine CFR provides the guidance here. The 

United Nations is a model regulation. So, while they are effectively 

exactly the same, because the United States tends to adopt the 

U.N. model regulations into our own to ensure that international 

transport is unimpeded, we look to 49 CFR, and that can include 

classifications, and those classifications include packing groups 1, 

2, and 3, for example. 

So, not every hazardous material is listed. For example, acetone 

may be named, but if another type of material meets a criteria— 

flammability—it would be classed—class 9 in this case. So it is a 

very broad area, and each new material that comes on to the market has to be properly classified before it can be put into—— 

Mr. ROKITA. Is this good or bad? 

Mr. RANKIN. This is very good. 

Mr. ROKITA. Thank you. 

Mr. DENHAM. Thank you, Mr. Rokita. 

Mr. Lipinski? 

Mr. LIPINSKI. Thank you, Mr. Chairman. The State of Illinois has 

36 short line railroads, 2,600 miles of short line track, and it is 37 

percent of the entire rail network in the State of Illinois. So many 

on this subcommittee from both sides of the aisle are cosponsors of 

a bill to make section 45(g), the Short Line Railroad Tax Credit, 

permanent. In fact, there are 158 cosponsors on the bill the last 

time that I checked. 

The bill incentivizes additional investment in the critical short 

line freight railroad infrastructure. And so I wanted to ask Ms. 

Darr the impact that the short line tax credit has on railroad safety. 

Ms. DARR. Thank you very much, Congressman Lipinski, and I 

want to just say that I know the—your constituents in Illinois appreciate your support of the small freight railroads in your State 

back home. 

And 45(g) is enormously critical to short line railroads and, in 

particular, the safety of short line railroads. I think you know that 

the number-one cause of derailments in the railroad industry is 

broken track. And so, 45(g) allows for the rehabilitation of abandoned track that has been, you know, not maintained or poorly 

maintained, so we are able to bring that up to standard through 

45(g). 

The first time that 45(g) was put into effect was 2005. It was 

passed in 2004, but in 2005 it started to pay back to the railroad 

industry and allow us to invest. And since then we have seen $4 

billion worth of investment in rehabbing track. So that is, you 

know, 12 or 13 years, roughly. So it has certainly had a major impact. This year I believe we are up to 158 cosponsors in the House 

in an effort to try to make 45(g) permanent, and we are very hopeful that, through support of the BRACE Act [Building Rail Access 

34 

for Customers and the Economy Act], this year we will be able to 

do that. 

Mr. LIPINSKI. Hopefully we will get that done this year. 

Mr. Nober, I wanted to talk about the eManifest. I introduced a 

bill last Congress directing DOT to complete a MAP–21 mandate 

to develop voluntary standards for the use of electronic shipping 

papers, which we commonly call eManifest. The goal is to provide 

real-time information on the content of railcars in the event of an 

accident to better inform first responders, because—much easier to 

get that electronically than to have to go and get the paper manifest out of the locomotive. 

The AskRail app, I was on hand in June of 2015 for the launch 

of that at the BNSF facility in my district. 

I wanted to ask about the—first of all, how far along BNSF is 

and what you know about other railroads, in terms of having an 

eManifest available for first responders. And second, do you think 

that this should negate the requirement for hard copies of an 

eManifest to be carried in the locomotive, or will it still be necessary to have that hard copy, if this is fully implemented? 

Mr. NOBER. Well, Congressman, again, we thank you for your 

help and leadership in that area. But, as you mentioned, BNSF did 

roll out our app for first responders. And it is available to first responders and State fusion centers. So we believe it is widely available now for our manifests, where it is needed. 

I think the AAR has an app, as well. And I believe the other railroads all have them, although I can’t swear to that. I know of some 

of them, but we can make sure we nail that down. But I believe 

all of the major class I railroads have an app. Certainly the four 

largest do. 

In terms of electronic delivery of documents, we think that is an 

area where there is a lot of room for further changing some of the 

regulatory—Ms. Darr was pointing to a manual. We think having 

manuals be made electronic, electronic—mandatory directives coming in electronically, all of that could be more accurate and more 

timely in an electronic manner than it will be through requiring 

paper records. 

So we think that that is an area, looking forward toward modernization and adopting technological solutions, that entire area of 

tracking and documents and manifests that are now paper have a 

lot of opportunity to be made electronic, and we would like to see 

this further go in that direction. 

Mr. LIPINSKI. Well, I think we should continue to work towards 

greater safety in the use of the electronic availability of this type 

of information. So, Mr. Chairman, I think it is something good for 

this subcommittee to work on, going forward. 

And, with that, I will yield back. 

Mr. FASO [presiding]. Thank you. Mr. Lewis? 

Mr. LEWIS. Thank you, Mr. Chairman. I want to go back a little 

bit over these special permits on Federal hazardous materials 

transportation right now. And I will start my questions with Mr. 

Nober, and then anybody else can answer, as well. 

But as you know, the DOT can issue these variances, these special permits for hazardous materials regulations and the like, 

and—if this is consistent with the public interest. You have to keep 

35 

applying before it is codified into law or regulation. So I am just 

wondering that, while not all of these individual special permits for 

new technology and the like are appropriate for incorporating into 

a regulation, we are starting to get some duplication here and some 

added expense. 

As I recall—and it was before I got here, but the MAP Act, MAP– 

21, directed PHMSA to review these special permits and determine 

which ones could be actually converted into a regulation, so you 

wouldn’t have to keep applying every time there is a new technology that had already applied for a special permit in the past. 

So, you know, would this help? Would the special permits or 

waivers, by making them permanent in regulation—obviously, 

would it streamline things, lower the cost? But would it also make 

certain that we had a consistent safety scheme, with regard to the 

transportation of hazardous materials? 

Mr. NOBER. Well, Congressman, I would say, in general, we are 

for making individual waivers that have proven their worth on a 

temporary basis to be made permanent. 

Now, on shipping hazardous materials on the railroad, packaging 

is really in the hands of our customers, so I probably will defer to 

the representatives of our customers who are here. And then, obviously, we have, for certain kinds of hazardous materials, key trains 

and for carrying TIH and PIH, various operational requirements. 

And so we will have requirements for, say, things like tank cars. 

But I think the waivers you are referring to, I believe, are about 

packaging for individual matters, as opposed to the transportation 

routing. So I will defer to my colleagues. 

Mr. LEWIS. Yes, go ahead. 

Mr. RANKIN. Thank you for the question. The—I believe you are 

referring to a reference in MAP–21, when Congress directed 

PHMSA to conduct a general review of existing special permits 

that had been in effect for 10 years or longer, which they did. In 

fact, PHMSA issued a rulemaking incorporating some of them, I 

think about—— 

Mr. LEWIS. About 100 of them. 

Mr. RANKIN. About 100, correct, into the hazardous materials 

regulations. But the review was only done once. And what we have 

suggested in our testimony is that this process becomes a regular 

annual activity. It is our view that special permits can live for— 

not forever, but certainly for a long, long time, and they are constantly reviewed and renewed every, well, 2 and then 4 years afterwards, generally. 

We would suggest that after about 6 years of implementation for 

special permits, that PHMSA mandatorily take a look at these for 

incorporation into the hazardous materials regulations. If they 

would do that on an annualized basis, it would reduce the amount 

of work they have to do in the renewal process, and, secondly, we 

think it is much more efficient and realistic. And it certainly does 

not negatively affect safety. It is quite positive, in fact, in its impact on safety. 

Mr. LEWIS. In fact, there was—yes, I think they found 96 could 

actually be adopted, but over 1,000 could not be adopted. So no one 

is suggesting that, if you have got a new technology that hasn’t 

36 

been reviewed, that you can let an extant regulation handle that. 

So there would still be a role for special permits. 

Mr. RANKIN. There still will always be a role for special permits, 

just because new technologies emerge all the time, new packagings 

emerge all the time. If the special permit is still in existence, the 

agency has, de facto, made a representation that the activity is a 

safe practice. 

We are just suggesting that it be reviewed and, hopefully, more 

of them incorporated—— 

Mr. LEWIS. And we are talking about special permits that are applied to the same technologies in general, over and over again. 

Mr. RANKIN. That is correct, yes. To the same process technology 

packaging. But in this case, let’s just say packaging. If you are reviewing a packaging or new technology every 4 years, at some 

point you should put that into the hazardous material regulation. 

That is the—— 

Mr. LEWIS. Quickly, anyone else? 

[No response.] 

Mr. LEWIS. Thank you, Mr. Chairman. I yield back. 

Mr. FASO. Mr. Smucker? Oh, I am sorry, Mr. Payne? 

Mr. PAYNE. Thank you. I really think that Mr. Capuano really 

captured the sentiments of a lot of us. 

And I would just like to ask, Mr. Tolman, in your testimony you 

highlighted just a few of the rail accidents that have happened over 

the last decade. We all know that the rail industry is very safe. 

And I see this as a good result of good balance struck between the 

railroads, labor, and Government. 

In the last few years there have been several fatigue-related accidents on commuter rail lines in the New York-New Jersey region. 

Can you speak more about the Government’s role in protecting 

train engineers and rail riders? 

Mr. TOLMAN. Sure, thank you. You know, in those two accidents, 

both individuals were diagnosed with sleep apnea. 

In the railroad industry, when you first start up, you know, you 

are 18, 20 years old. You are an astronaut, you are in the best 

shape of your life. 

Mr. PAYNE. Right. 

Mr. TOLMAN. And the railroad industry is extremely difficult and 

enduring regimen. You go to work 24/7, you are on call 24/7, except 

in passenger service. But that is where you start out. You typically 

would start out in the freight industry, which you are on call. You 

have no idea when you are going to get—go to work next. 

So, therefore, then you get called in the middle of the night. You 

haven’t—and what are you going to eat? Where do you eat? What 

do you do? 

There are so many little issues that you deal with, whether it is 

whole body vibration because of excessive lateral motion or horizontal motion, you go—your body goes through major changes. And 

you know, unfortunately, the—as you come in an astronaut, now 

they want a person that is there 10, 15, 20 years, they want him 

to still be that astronaut, and that is impossible, with the schedule 

you keep, the distance you are traveling. 

I mean, my God, when I mentioned the super pools, can you 

imagine trying to have the knowledge of 1,500 miles? That is every 

37 

physical characteristic along the right-of-way. When there is fog or 

a snow storm in front of you, it is extremely—it is so imperative 

to know exactly where you are at every single moment, so that no 

incident or accident happens. 

Listen, we are professionals in the industry. We are the best professionals in the industry, across the board. From the signal maintainers to the maintenance of way workers, we are doing our best 

under extreme conditions. And you can’t always be that astronaut. 

We are heartbroken that any type of incident ever happens in our 

career. And I will tell you. Every time we hear an incident, our 

heart aches, because you—something happened there. And what 

happened, God only knows, and we usually find out later. 

I don’t know if I answered your question. 

Mr. PAYNE. No, that was—— 

Mr. TOLMAN. There is a lot—— 

Mr. PAYNE. Absolutely. 

Mr. TOLMAN. There is a lot to it. 

Mr. PAYNE. Thank you. 

Mr. TOLMAN. Thank you, Congressman. 

Mr. PAYNE. Let’s see, Ms. Darr and Mr. Nober, the railroads, you 

know, are much safer than they were 40 years ago. The data 

proves that. No doubt this is due, in part, to the deregulation of 

the industry. But tragic accidents over the years have prompted 

Congress and the FRA to reassess industry practices. 

While I am receptive to the arguments that regulations can 

sometimes be burdensome, I also know that regulations have saved 

lives. Despite what you might consider the present burdensome 

regulatory environment, many railroads, including BNSF, are as 

prosperous as they have ever been in decades. The railroads are 

prosperous, the railroads are safe. Why should we rock the boat? 

Ms. DARR. Thank you, Congressman. I would just say, ‘‘Exactly.’’ 

Mr. NOBER. Well, Congressman, I would probably give a little 

longer answer, so if you will forgive that, and that is that, over 

time, we have been prosperous. And, as you have seen, our safety 

record has never been better. But, as we look to the future, it is 

important that we remain prosperous and we remain competitive 

with the other modes. And in order to remain prosperous and remain competitive, to be able to invest in our systems, invest in 

technology, and to grow, we need to be efficient, and we need to 

adopt the best available technologies, and we need to have regulation evolve with technology. 

You see it in the trucking industry, where you can’t read any 

media without seeing about the idea of autonomous cars and autonomous trucks. And at BNSF we are not talking about autonomous trains, but we are talking about some flexibility to look at 

automating particular manual safety functions, that has both the 

safety benefit and an efficiency benefit. And so that will free up the 

existing people we have to be finders, and from finders to fixers, 

and let the automated technologies that are better at finding continue to find. So it is certainly a balance. 

And I just would like to mention one thing. Mr. Tolman was referring to super pools, which is, obviously, about BNSF. We are the 

railroad that has implemented those. And you know, I would say 

that we think, sort of bringing this all together, that technology is 

38 

helping—we agree that fatigue is a problem. And technology is 

helping these jobs improve to let these folks do a better job, and 

to reduce fatigue. 

And we may have to agree to disagree with Mr. Tolman about 

the impact of some of these things but, you know, we believe that 

all these implications are making things safer and enabling rest. 

Mr. PAYNE. And—— 

Mr. NOBER. But again, I mean, I have the greatest respect for 

my colleague, and you know, we may have a difference of opinion 

on that. 

Mr. PAYNE. Thank you. And, Ms. Darr, I didn’t—your answer 

was so quick, I didn’t catch it. What was it? 

Ms. DARR. I said exactly, and that was to agree with you. And 

it is also to demonstrate that short lines are also often short-worded. 

[Laughter.] 

Mr. PAYNE. Very clever. Thank you. 

Mr. FASO. Mr. Babin, you are recognized for 5 minutes. 

Dr. BABIN. Thank you, Mr. Chairman. I appreciate it. Wow, 

sorry. I would like to direct a couple of questions to Mr. Santa and 

Mr. Rorick. 

Can you briefly discuss the consequences of delayed rulemakings 

on the regulated community and your members? And what are the 

costs and inefficiencies produced by delay? 

Mr. Santa? 

Mr. SANTA. Yes, Mr. Babin. Thank you for the question. 

INGAA and its members are committed to a voluntary program 

of improving pipeline safety after the San Bruno tragedy. And a lot 

of those commitments parallel what is being addressed by PHMSA 

in the proposed rule. And while we are committed to that, I think 

there is apprehension on the part of some of our member companies to make the investment and incur the cost to do, for example, 

certain types of pipeline testing, where there is the risk that, when 

PHMSA comes back with its rule, it says, ‘‘Well, that is not quite 

up to the standard of the new rule. Therefore, you need to do it 

over.’’ 

And this is more than just cost. It is disruption of service, it is 

the risk of perhaps not recovering those costs in the rates of the 

pipeline. So I think that that is one of the inefficiencies and costs 

that results from this delay. 

Dr. BABIN. Thank you. 

Mr. Rorick? 

Mr. RORICK. I think Mr. Santa captured it well. One of the 

things that our industry depends on—and a lot of industries depend on—is just consistency. And when—as I indicated in my testimony, these companies plan out 10, 20 years in advance multibillion-dollar projects. The expectation is that when they are investing 

in these projects, they are going to know what they need to do 

when they actually build the projects, that may take multiple 

years. 

So, contrary to what many people may think, we are not an industry that is opposed to regulation. And, in fact, we support it, as 

Mr. Santa and I both attested. We supported the development of 

the liquid pipeline safety rule and the natural gas pipeline safety 

39 

rule. We did that because we need that consistency. That delay creates uncertainty, and it makes it difficult to move forward with investments. 

Dr. BABIN. Yes. OK, thank you. And then one more, if I could direct it to you same two gentlemen, can you please discuss the benefits from robust stakeholder engagement at the outset of a rulemaking? What stakeholder and Government collaboration, if any, 

precedes commencement of a rulemaking, and does industry and 

other stakeholders expend any effort developing a consensus on 

safety standards before the commencement of a rulemaking? 

Mr. SANTA. I think there are two good examples where collaboration has paid big benefits. One of them is, as I noted earlier, in the 

lead-up to the integrity management rule that was adopted by 

PHMSA in 2004 there was pretty extensive stakeholder engagement, both through the Gas Pipeline Advisory Committee and 

through other means. And I think that resulted in a very, very 

good rule. 

The other one is, even though we have been critical of PHMSA 

and their process on the underground gas storage interim final 

rule, in fact I think that is a success story. Because what is happening there is that rule is predicated on the two recommended 

practices that were adopted in the API standards development 

process. 

Those came out of—on behalf of INGAA, those pipeline safety 

commitments, voluntary commitments we made that, years before 

the rule came up, we were working through that standards development process. That has involved regulators, it has involved academia, other interested parties. Very transparent. And I think that 

provided the platform for PHMSA to move quite quickly to proposing a rule in an area where, quite frankly, it had no regulation 

prior to that. 

Dr. BABIN. OK, thank you. And Mr. Rorick? 

Mr. RORICK. And maybe just to add a little bit onto the standardsetting process, as a standard-setting organization we are accredited by ANSI, which means that there are strict guidelines that we 

have to follow. As part of that, as Mr. Santa indicated, it is an open 

process. 

So, if you are an expert in the field, whether from academia, the 

public, Government, industry, you are allowed to participate in the 

development of that standard. And that collaboration is crucial because what you are doing is you are taking the experts in the field 

and developing something, oftentimes in advance of the regulation 

because we don’t want to wait for the regulation to develop. 

Mr. Santa talked about the two recommended practices for underground storage. We recently developed another one on developing pipeline safety management systems. And this is a standard 

that companies can use to make sure that, in all of their practices 

that they are implementing, whether it is for emergency response 

or underground storage or whatever, that there is a system where 

you are constantly reviewing what you are doing, to make sure you 

can improve it. And it is an ever-growing process. 

It is a similar system that is used by the nuclear industry, by 

the airline industry, as well. PHMSA was an integral part, as well 

as NTSB, in the creation of that standard, and we have got a very 

40 

good product moving forward that we both—both regulator and industry—can agree upon. 

Dr. BABIN. OK, and I think my time has expired. Thank you, Mr. 

Chairman. I yield back. 

Mr. FASO. Thank you. 

Mr. DeSaulnier? 

Mr. DESAULNIER. Thank you, Mr. Chairman. I want to make my 

comments as somebody who represents an area in northern California that, measured by per capita or geography, has the highest 

areas of hazardous materials. We have five refineries in—between 

the county I represent and the neighboring one across the water in 

Suisun Bay. And, having been on regulatory boards at the local, regional, and State level, I think one of the things I get from this 

meeting is both an opportunity to celebrate the progress we have 

made, but also a cautionary tale that we get—continue to get it 

right. 

So, first, Mr. Tolman, you mentioned human factors. And in so 

many industries the importance of human factors in safeties of culture—as I have experienced it in chemical refining plants, hospitals—we are learning so much more. I know in the national laboratories in northern California, they do a lot of studying on 

human factors in different fields. And one of the key things is making sure that the rank and file people have some input. 

So could you talk about that input? And maybe, Mr. Nober, you 

could follow up. Particularly when it comes to new technologies. So 

we want to acknowledge that new technology can make it safer, but 

we also want to work when it comes to human factors, and not just 

drive costs down with an excuse that it is going to make it safer, 

but actually have a full understanding that it is going to make it 

safer, and it benefits the workers, as well. 

Mr. TOLMAN. Yes. First of all, Mr. Nober had mentioned that 

there is technology out there that allows the carriers now to address fatigue in the industry. Well, it really doesn’t address fatigue. 

There is no technology that addresses fatigue. Knowing when a 

person comes and goes to work is how you address fatigue. It is a 

commonsense issue. 

You know, and the railroad industry moves more and more hazardous material throughout our Nation. And we usually don’t get 

a regulation until they start moving a serious thing, or serious accident happens. And you know, in the near future—and currently 

there is some nuclear waste moving across the United States. And 

at the present time there is no regulation that protects the employees from any nuclear waste. And there is a very simple device, I 

think we are all familiar with it, it is a device that would measure 

any nuclear waste. I mean that is the common sense that we need 

to have in the industry if we are going to start moving these 

things. 

You know, the emergency escape breathing apparatus, I mean, 

that is another practical safety issue. I mean, sure, we didn’t have 

an accident in 10 years, but, you know, God forbid that that happened, you know, at 2 o’clock in the afternoon, instead of 2 o’clock 

in the morning. But never mind. I mean you can’t forget the nine 

people that were in that factory. That destroyed that factory, it destroyed their lives. 

41 

I mean you constantly—technology is great, but it doesn’t ever 

replace human interface, period. 

Mr. DESAULNIER. Thank you. I am going to let you respond, Mr. 

Nober, but I want to make another point and you can respond to 

this, as well, because my time is limited. And then Mr. Rorick and 

Mr. Rankin. 

So, short-term versus long-term investment and prescriptive 

versus performance-based. Eighteen years ago, in my local Government, when I was a county supervisor, we had two explosions, 

killed five of my constituents. A competing refinery lobbyist called 

me and said, ‘‘We do all long-term investment. Our competitors do 

not. They are getting a higher return after-tax profit in publicly 

traded companies. If you, as a regulator, don’t bring them up to a 

higher standard, then we are going to have to come down to 

theirs.’’ 

That second incident was the largest in the history of the State, 

and resulted in a very large private right of action. 

So, when we did a full facility audit, what came back was the 

auditor said it was the corporate culture that led to these deaths. 

So the struggle between long-term investment, short-term investment being successful in the marketplace, but also doing what is 

clearly the best thing in long-term investment—so that is my question, particularly Mr. Rorick and Mr. Nober. And if you could follow 

up—— 

Mr. NOBER. I would. First, I would just like to clarify that, and 

maybe I misspoke earlier—that we think that technology can help 

reduce exposure for employees and improve safety. And obviously, 

things like the long pool that we think—and perhaps disagree with 

Mr. Tolman—that can reduce fatigue. But fatigue is hard, because 

there are minimum requirements. But what people do in their off 

time, it is not something that we can control. And so it is something that has to happen holistically. 

Now, you asked about how we bring a culture of safety. At 

BNSF—because, obviously, the human and human exposure and 

human choices are the single most important thing to us. And we 

have a philosophy and a program called Approaching Others. And 

what we do is we train everybody in our railroad, from the CEO 

on down, on how to ensure and feel enabled to approach others if 

you see somebody take an unsafe act, or bring themselves or put 

themselves in a situation where they are exposed to danger, to feel 

that you are empowered to go and talk to them and say, ‘‘Hey, you 

know, there is a safer way to do that.’’ 

And, you know, we really are proud of our Approaching Others— 

it has been going on for years—ensuring that people don’t put 

themselves in harm’s way is job one of improving safety. And technology can help reduce exposure by not having people put themselves in compromising positions. 

And I will just say that, over time, in terms of your investment 

question, you know, we are a believer that a safe operation is the 

best and the most efficient and the most profitable operation. And 

so, our long-term improvements in safety are where we go—I can’t 

imagine our company ever saying, ‘‘Hey, if you don’t reduce safety 

standards or bring them up, we are going to have to reduce ours.’’ 

We are about keeping our network, which is our business, operVerDate Aug 31 2005 11:16 Sep 25, 2017 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 P:\HEARINGS\115\RR\4-26-2~1\25309.TXT JEAN
42 

ating efficiently and safely, and getting our people home safely 

every night. And I think Mr. Tolman and I agree on that. 

Mr. TOLMAN. Congressman, if I may, just to—and I don’t mean 

to go back and forth, but I just want to comment on the—of course 

you—we can’t control people’s off time. But the railroad industry 

can control scheduled work, calling times, mandatory attendance 

policies. Those are the things you can control. Window-calling 

times, et cetera. 

I mean there are a lot of things, and these are the things that 

the rail labor and management should be sitting down, working together, and not pretending that fatigue doesn’t exist in the industry. There are some—BNSF has had some great pilot programs, 

but we are beyond pilot programs. Enough pilot programs. We 

know by now that certain things address—can address fatigue in 

the industry. Let’s get them working. Let’s focus on them. These— 

this is what safety is about. 

Mr. FASO. The gentleman’s time is expired. If you have—Mr. 

Rorick, if you have additional comment to add, please do and we 

will add it to the record. 

The gentleman from Pennsylvania? 

Mr. SMUCKER. Thank you, Mr. Chairman. 

I would like to follow up, Mr. Nober, to respond to prior questions in regards to the competitiveness of the rail industry compared to other modes. And I think you are correct that we will see 

changes in other modes that may—has potential to change that 

equation. And so new technology that will enable you to drive out 

efficiencies and have a more efficient operation, I think, will be important, going forward. At the same time, it appears those technologies can actually increase the safety. 

So I just wanted to go back to your written testimony, where you 

note that BNSF intends to leverage PTC to develop the next generation of train operation. It is known as moving block. And so I 

would like to just hear a little more about that. Can you just give 

us some sense of how much moving block would have potential to 

increase your capacity in your company? 

Mr. NOBER. Well, I will first do my best to explain it. And hopefully that—and then there is a lot of debate about how much of a 

capacity improvement. 

But right now our line of road, if you will, our capacity, is constrained by many factors, but one of which is how far apart trains 

have to be to operate safely. And, as you know, we have blocks. 

They kind of segment the track into 4-mile segments, and only one 

train can be in a 4-mile segment at a time. 

PTC, the opportunity we see with PTC, is that it will have a 

GPS, real-time knowledge of every train on the system, where it is 

at all times. And it is not just knowing where the trains are, but 

the key is we have an infinite number of combinations of trains. 

Some are longer, some are loads, some are empties. And the weight 

of a train, the mass, the speed, the terrain all affect how long it 

takes to stop. 

And PTC is a system that has to learn that, right? That is the 

complexity of it. You have to know if it is a loaded, 8,000-foot coal 

train versus an empty set of intermodal going back and you are 

going up the Rocky Mountains versus, you know, in the Mississippi 

43 

River Valley. What does it take to stop them? PTC solves that, 

technologically. 

And so, what that will allow us to do is, by a moving block, have 

a real-time ability to know how close together two trains can be to 

be able to stop and operate safely. And that will allow us to be 

more efficient on our existing tracks. And what we need is for help 

from the regulators to help us begin to—what we call next generation PTC, to be able to leverage that technology to be more efficient 

in the long run. 

And, you know, we think that is a great opportunity. It is not 

going to be easy. It is going to take some time. But that is the benefit of PTC technology down the road. 

Mr. SMUCKER. So can you expand on that? You say you will need 

help from Congress, as the regulators. What can we do to remove 

any disincentives that are in place to allow you to bring this new 

equipment into service? 

Mr. NOBER. Well, I would say, at the beginning it is going to be— 

you know, the FRA can be slow, in terms of looking at new technology. A few years back we started experimenting with LNG locomotives, and just wanting to look to develop that. And it was, admittedly, a slow process. 

Now, times and market changes have really kind of altered the 

equation on that some, but it was a new, promising technology that 

we wanted to look at. And being able to see some benefits to that, 

to be able to compensate for the amount of capital cost we would 

have to do when it would be an improvement, that was something 

that probably would have taken some nudging of the FRA. 

And for moving block, that would be a change in the way the regulators look at the traditional notions of safety, and their mindset 

would have to be willing to look at—through the waiver process 

and through a cooperative technological advancement process, to be 

able to let us experiment and test new technology, and be able to 

move faster and encourage the development of that. 

Mr. SMUCKER. And do you believe that this is industrywide? So, 

for instance, have other railroads like CSX—are they looking to 

adopt this technology, as well? 

Mr. NOBER. I don’t know that the other railroads—again, it 

would depend a little bit on their geography and their system and 

the types of traffic that they have. So I don’t know if other railroads would see the opportunity in moving block that we necessarily would. 

Mr. SMUCKER. All right, thank you. 

Mr. NOBER. But I don’t know that they wouldn’t. 

Mr. SMUCKER. All right, thank you. I yield back. 

Mr. FASO. The gentleman from Texas. 

Mr. WEBER. They saved the best for last. Mr. Rorick, does 

PHMSA ever come out on pipeline construction, not just in the permitting or in the—I guess the permitting phase. Do they come out 

and actually witness a pipeline going in? 

Mr. RORICK. They are—they will come out periodically and check 

as the construction is taking place, to ensure that they are meeting 

the plans. When a pipeline is permitted, the plans have to be submitted to PHMSA. PHMSA then can give feedback to the pipeline 

44 

operator with any suggested changes. They will work that out between the operator and PHMSA. 

And then, during the construction process, PHMSA can, in fact, 

come out, check the facility, and then, certainly during operations, 

they will come out and inspect the facility, as well. 

Mr. WEBER. If there is an accident, a spill of some kind, do they 

come out? Do the same people come out and see what happened 

after the fact? 

Mr. RORICK. They—well, there is—the—PHMSA will then investigate the release, and then take that information back, and then 

compare that to—— 

Mr. WEBER. But is it the same people? Do you get the sense that, 

you know, they are really paying attention, and they are wanting 

to be involved, start to finish? 

Mr. RORICK. I can’t speak as to whether it is the same people, 

but they definitely are paying attention, because they share the 

same objective we do, which is to reduce the spill. So—— 

Mr. WEBER. OK. Same way for the Federal Railroad Administration. 

I guess, Ms. Darr, I will start with you. I understand that you 

all have a facility that tests locomotives and accidents and stuff 

like that. Is—do I remember that correctly? Or somebody does. It 

may have been Mr. Nober. 

Mr. NOBER. Yes, we have—it is called the TTCI, and it is a research center that is in Pueblo, Colorado, that is a cooperative railroad-FRA facility where we have test tracks, and we test all sorts 

of things there. 

Mr. WEBER. So they get to witness the accident before and after, 

and see how the regulations may or may not have affected or 

played a part? 

Mr. NOBER. We are able to conduct real-time research, and even 

do crashes, test crashes. 

Mr. WEBER. OK. Do they ever get involved in going to some of 

the factories for locomotive design, or do they just simply see all 

this after the fact? 

Mr. NOBER. I don’t know if the FRA is involved in locomotive design. 

Mr. WEBER. OK. So once they have seen an accident, and seen 

a locomotive come apart, so to speak, I am just curious if they try 

to follow that through on the front end. 

There are manufacturing facilities that build cars—— 

Mr. NOBER. They do. 

Mr. WEBER. They do? 

Mr. NOBER. They do—— 

Mr. WEBER. I am glad to know that there is—Trinity Industries 

in Texas, Navasota, Texas, that manufactures tank cars, for example. 

Mr. NOBER. Right. And GE and Caterpillar manufacture locomotives. 

Mr. WEBER. I had a meeting with them just the other day. Does 

the FRA regulators—do they ever go to the manufacturing facilities 

and watch when a car is being built, and see what the regulations 

do to that process? 

Mr. NOBER. Absolutely. 

45 

Mr. WEBER. You are getting the nod from the learned few behind 

you. 

Mr. NOBER. Yes, I am. Actually, I am cooperating with them. 

[Laughter.] 

Mr. WEBER. When you talk about these emergency escape 

breathing apparatuses, I am not familiar with that accident that 

occurred with the chlorine. I am very familiar with what chlorine 

does. Was the emergency breathing apparatuses—was that just for 

the engineers? What was the subject there? Or was it to have more 

available for people off the track? 

Mr. NOBER. No, it was to have it in the cab of locomotives. 

Mr. WEBER. Have it in the cab of locomotives. 

Mr. TOLMAN. Mr. Congressman, if I can mention—— 

Mr. WEBER. Sure. 

Mr. TOLMAN [continuing]. A little bit about that, in the Rail Safety Improvement Act passed in 2008, that was a mandate in the act. 

Today we have a guideline. We don’t have—they haven’t acted on 

the law just yet. 

Mr. WEBER. OK. 

Mr. TOLMAN. And it has happened. There isn’t any emergency escape breathing apparatus, although BNSF does it in some of the 

tunnels. But however, it is not regulated or mandated in any way, 

shape, or form. 

Mr. WEBER. I got you. So you could also say that about other 

hazardous chemicals that you—the trains carry, whether it is oil or 

gasoline or ammonia or anhydrous ammonia. The trains carry a lot 

of hazardous materials. Is that accurate? 

Mr. NOBER. Correct. Overall, it is a small—I mean there are different categories of it. There is what you are referring to, anhydrous and chlorine are what we call poisonous, or toxic by inhalation. 

Mr. WEBER. Yes. 

Mr. NOBER. And so that is for BNSF, a very small percentage of 

what we carry. But things that are classified as hazardous is larger. 

Mr. WEBER. Yes. Trains aren’t—carriers aren’t mandated to 

carry fire-fighting equipment. You would have a different foam to 

fight an oil or a gasoline or a diesel, or some kind of chemical, 

right? 

Mr. NOBER. We preposition fire-fighting equipment throughout 

our system to be able to move it when we have an incident. 

Mr. WEBER. Is that true about all the rail lines? 

Mr. NOBER. I don’t know if every class I railroad does that, but 

I believe they all do, to some extent. But we do, particularly in our 

crude network and our key train network. 

Mr. WEBER. OK. Well, that is very interesting. Good to know. 

Thank you. I am going to yield back, because the hour is late. 

Mr. FASO. Are there further questions from any members of the 

committee? 

Seeing none, I would like to thank each of the witnesses for your 

testimony today. Your contribution to today’s discussion has been 

very informative and helpful. 

I ask unanimous consent that the record of today’s hearing remain open until such time as our witnesses have provided answers 

46 

to any questions that may have been submitted to them in writing, 

and unanimous consent that the record remain open for 15 days for 

additional comments and information submitted by members or 

witnesses to be included in the record of today’s hearing. 

Without objection, so ordered. 

If no other members have anything to add, the committee stands 

adjourned. 

[Whereupon, at 12:15 p.m., the subcommittee was adjourned.] 

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