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HUMAN FACTORS ISSUES IN RAIL

SAFETY

(109–92)

HEARING

BEFORE THE

SUBCOMMITTEE ON

RAILROADS

OF THE

COMMITTEE ON

TRANSPORTATION AND

INFRASTRUCTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JULY 25, 2006

Printed for the use of the

Committee on Transportation and Infrastructure

(
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-Chair

SHERWOOD L. BOEHLERT, New York

HOWARD COBLE, North Carolina

JOHN J. DUNCAN, JR., Tennessee

WAYNE T. GILCHREST, Maryland

JOHN L. MICA, Florida

PETER HOEKSTRA, Michigan

VERNON J. EHLERS, Michigan

SPENCER BACHUS, Alabama

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

GARY G. MILLER, California

ROBIN HAYES, North Carolina

ROB SIMMONS, Connecticut

HENRY E. BROWN, JR., South Carolina

TIMOTHY V. JOHNSON, Illinois

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

TOM OSBORNE, Nebraska

KENNY MARCHANT, Texas

MICHAEL E. SODREL, Indiana

CHARLES W. DENT, Pennsylvania

TED POE, Texas

DAVID G. REICHERT, Washington

CONNIE MACK, Florida

JOHN R. ‘RANDY’ KUHL, JR., New York

LUIS G. FORTUN ̃ O, Puerto Rico

LYNN A. WESTMORELAND, Georgia

CHARLES W. BOUSTANY, JR., Louisiana

JEAN SCHMIDT, Ohio

JAMES L. OBERSTAR, Minnesota

NICK J. RAHALL, II, West Virginia

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JERROLD NADLER, New York

CORRINE BROWN, Florida

BOB FILNER, California

EDDIE BERNICE JOHNSON, Texas

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

LEONARD L. BOSWELL, Iowa

TIM HOLDEN, Pennsylvania

BRIAN BAIRD, Washington

SHELLEY BERKLEY, Nevada

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

JULIA CARSON, Indiana

TIMOTHY H. BISHOP, New York

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

BRIAN HIGGINS, New York

RUSS CARNAHAN, Missouri

ALLYSON Y. SCHWARTZ, Pennsylvania

JOHN T. SALAZAR, Colorado

JOHN BARROW, Georgia

(II)
SUBCOMMITTEE ON RAILROADS

STEVEN C. LATOURETTE, Ohio, Chairman

THOMAS E. PETRI, Wisconsin

SHERWOOD L. BOEHLERT, New York

JOHN L. MICA, Florida

SPENCER BACHUS, Alabama

JERRY MORAN, Kansas

GARY G. MILLER, California

ROB SIMMONS, Connecticut

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

JON PORTER, Nevada

TOM OSBORNE, Nebraska

MICHAEL E. SODREL, Indiana

LYNN A. WESTMORELND, Georgia, ViceChair

DON YOUNG, Alaska

(ex officio)

CORRINE BROWN, Florida

NICK J. RAHALL II, West Virginia

JERROLD NADLER, New York

BOB FILNER, California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

LEONARD L. BOSWELL, Iowa

JULIA CARSON, Indiana

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

EDDIE BERNICE JOHNSON, Texas

JOHN BARROW, Georgia

JAMES L. OBERSTAR, Minnesota

(ex officio)

(III)

(V)

CONTENTS

TESTIMONY

Page

Boardman, Hon. Joseph, Administrator, Federal Railroad Administration ....... 4

Chipkevich, Robert, Director, Office of Rail, Pipeline and Hazardous Materials

Investigation, National Transportation Safety Board ....................................... 4

Hamberger, Edward, President and Chief Executive Officer, Association of

American Railroads .............................................................................................. 14

Moore-Ede, Martin, M.D., Ph.D, Chief Executive Officer, Circadian Technologies, Inc. ......................................................................................................... 14

Pickett, W. Dan, International President, Brotherhood of Railroad Signalmen 14

Stem, James, Alternate National Legislative Director, United Transportation

Union ..................................................................................................................... 14

Timmons, Richard F., President, American Short Line and Regional Railroad

Association ............................................................................................................ 14

Tolman, John P., Vice President and National Legislative Representative,

Brotherhood of Locomotive Engineers and Trainmen ....................................... 14

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Costello, Hon. Jerry F., of Illinois .......................................................................... 87

Oberstar, Hon. James L., of Florida ....................................................................... 119

Porter, Hon. Jon, of Nevada ................................................................................... 131

Young, Hon. Don, of Alaska .................................................................................... 250

PREPARED STATEMENTS SUBMITTED BY WITNESSES

Boardman, Hon. Joseph .......................................................................................... 36

Chipkevich, Robert .................................................................................................. 73

Hamberger, Edward ................................................................................................ 89

Moore-Ede, Martin ................................................................................................... 107

Pickett, W. Dan ........................................................................................................ 123

Stem, James ............................................................................................................. 132

Timmons, Richard F ................................................................................................ 239

Tolman, John P. ....................................................................................................... 242

SUBMISSIONS FOR THE RECORD

Boardman, Hon. Joseph, Administrator, Federal Railroad Administration:

Response to a question from Rep. LaTourette ................................................... 8

Train Accidents Caused by Human Factors, by Most Frequently Reported

Cause, chart ...................................................................................................... 62

Federal Railroad Administration (FRA) and Pipeline and Hazardous Materials Administration (PHMSA) Regulations Requiring Training, Testing,

Qualification, or Cetification of Certain Railroad Employees, chart ............ 67

Chipkevich, Robert, Director, Office of Rail, Pipeline and Hazardous Materials

Investigation, National Transportation Safety Board, letter to Don M. Hahs,

National President, Brotherhood of Locomotive Engineers and Trainmen

and Paul C. Thompson, International President, Untied Transportation

Union, from Mark V. Rosenker, Acting Chairman, National Transportation

Safety Board, July 20, 2006 ................................................................................ 82

Hamberger, Edward, President and Chief Executive Officer, Association of

American Railroads, Collision Analysis Working Group (CAWG) Rebuttal ... 104
Page

VI

Stem, James, Alternate National Legislative Director, United Transportation

Union:

Evaluation of the U.S. Department of Transportation Efforts in the 1990’s

to Address Operator Fatigue, National Transportation Safety Board report, NTSB/SR–99/01, May 1999 ..................................................................... 143

65 Main-Track Train Collisions, 1997 through 2002: Review, Analysis, Findings, and Recommendations, Federal Railroad Administration, Collision

Analysis Working Group (CAWG), Final Report, February 21, 2006 .......... 153

ADDITION TO THE RECORD

Current Stateus of Fatigue Managment in the Railroad Industry, Sherry,

Patrick, Ph.D, Associate Professor, Director, National Center for Intermodal

Transportation, Intermodal Transportation Institute, University of Denver,

report ..................................................................................................................... 253
(1)

HUMAN FACTORS ISSUES IN RAIL SAFETY

Tuesday, July 25, 2006

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, SUBCOMMITTEE ON

RAILROADS, WASHINGTON, D.C.

The subcommittee met, pursuant to call, at 10:00 a.m., in room

2167, Rayburn House Office Building, the Honorable Steven C.

LaTourette [Chairman of the subcommittee] presiding.

Mr. LATOURETTE. We are going to call the Subcommittee to order

this morning. Good morning. The Subcommittee will come to order.

I want to welcome all of the members and witnesses to today’s

hearing on the subject of Human Factors Issues in Rail Safety.

Working the rails can be a difficult and dangerous job. The men

and women of our Nation’s railroads work outdoors in the blistering heat of summer and the frigid cold of winter. Whether through

mountain blizzards or coastal storms, the trains have to go

through. Our Nation’s railroads run 24 hours a day, 365 days a

year. Railroad employees often work through the night or on weekends or on holidays. Overtime work is the norm on many of our

major railroads.

This grueling schedule can have an impact on safety. Many railroad accidents have been attributed to employee fatigue, including

accidents involving major loss of life. The work schedules of railroad employees is governed by the Hours of Service Act, a law dating back to 1907 when the railroad still ran steam engines. The

purpose of today’s hearing is to revisit the Hours of Service Act in

light of new medical discoveries with due regard to the demands

and responsibilities placed on employees in today’s railroad operating environment.

Before yielding to Mr. Barrow, our guest Ranking Member today,

I will just do a couple of brief housekeeping items.

I ask unanimous consent to allow 30 days for members to revise

and extend their remarks and to permit the submission of additional statements and materials by members and witnesses. Without objection, so ordered.

Also, I ask unanimous consent to permit Ms. Schwartz of Pennsylvania to sit with the Subcommittee and to ask questions

throughout the course of the hearing. Without objection, so ordered.

Now it is my pleasure to yield to Mr. Barrow for any opening remarks he would want to make.

Mr. BARROW. Thank you, Mr. Chairman.

Along the housekeeping lines, I would also like to ask unanimous

consent that Representative Schwartz be allowed to sit as guest

Ranking Member of this Committee when I have to leave.
2

Mr. LATOURETTE. Without objection.

Mr. BARROW. Thank you, Mr. Chairman, for holding this hearing.

Since the 1980’s, the National Transportation Safety Board has

been urging the Federal Railroad Administration, the railroad industry, and labor to create common sense solutions to reduce accidents caused by human factors. A leading cause of these accidents

is fatigue. In 1999, the NTSB published an evaluation of the Department of Transportation’s efforts to address operator fatigue.

Rail employees often work long and unpredictable hours and are

constantly under the threat of exhaustion. In fact, rail workers put

more time on the clock than any other worker in the transportation

industry.

The NTSB recommended the rail industry develop schedules and

working conditions to encourage employees to rest and implement

better testing to determine fitness for duty. They also recommend

the industry work more closely with its employees to reduce the

amount of tasks that induce fatigue. The FRA agreed with the

NTSB’s findings, and in 2003, they established the North American

Rail Alertness Partnership, a joint labor-management forum to address these issues. However, the NTSB made these original recommendations over seven years ago, and we haven’t heard of any

specific actions the industry has taken to address fatigue with one

exception, new technology and positive train control.

Combating fatigue is a win-win proposition for the rail industry.

The railroads should provide across the board training on fatigue

management. Rail workers and their supervisors should get regular training on the importance of sleep, how to recognize sleep disorders, sleep strategies, and how to counter the effects of fatigue

which can be effective in dealing with fatigue and ensuring the safe

operation of our trains.

The railroads should also allow workers who are fatigued to go

home when they are tired without fear of being disciplined or dismissed from their jobs. In addition, the railroad should actively

work to limit limbo time where an employee is neither on the clock

or off but is usually traveling from one job to the next.

The FRA should be rigorously enforcing the hours of service law,

developing crew scheduling practices for the railroads, and requiring the railroads to adopt fatigue mitigation plans which should be

submitted to the FRA and approved by the FRA. Congress needs

to revise the Railroad Hours of Service Act which was enacted in

1907, which everyone agrees is in desperate need of updating.

Thank you, Mr. Chairman. I look forward to hearing from witnesses today, and I yield back the balance of my time.

Mr. LATOURETTE. I thank you, Mr. Barrow.

Mr. Cummings?

Mr. CUMMINGS. Thank you very much, Mr. Chairman. I will be

very brief. I too thank you, Mr. Chairman, for holding this hearing

with regard to the human factors that affect safety on our national

railroad network.

During a hearing held by this Subcommittee earlier this year to

examine overall trends in rail safety, several of the witnesses who

appeared before us emphasized the fact that in 2005, human factors were the primary causes of accidents among all four major
3

Class I railroads. Today’s hearing will give us the opportunity to

explore the human factors that affect rail safety in more detail.

Statistics published by the Association of American Railroads

show that during 2004, there were 556 railroads operating more

than 201,000 miles of track and employing nearly 216,000 workers.

The total number of accidents and incidents of all kinds per year

on the rail network have fallen dramatically over the past decade

from nearly 17,719 in 1996 to just under 13,800 in 2005.

However, while these overall trends are very encouraging, there

are other safety indicators that have not shown this kind of improvement. For example, during the 1996 to 2005 period, the total

number of train accidents has been steadily increasing. In addition,

after falling between 2000 and 2002, the number of train collisions

has been rising in recent years, increasing from 192 collisions in

2002 to 261 collisions in 2005. Unfortunately, the rate of human

factors in train accidents has shown a particularly steep rise, increasing from 783 accidents attributed to human factors in 1996 to

more 1,200 attributed to human factors in 2005.

Among those human factors that are contributing to accidents is

worker fatigue which was cited as a contributing cause to the 2004

train collision in Texas that led to the release of a chlorine gas

cloud that killed two local residents. Trains now carry more than

1.8 million carloads of hazardous materials per year, and the safe

operation of trains is particularly essential to ensuring the safe

transportation of such cargos. The prevalence of fatigue as a contributing factor in rail accidents calls into question whether current

regulations regarding hours of service and current railroad crew

scheduling procedures are truly designed to protect the safety of

workers and of the communities through which trains pass.

Mr. Chairman, a month with 31 days has only 744 hours in it.

The National Transportation Safety Board has indicated that the

maximum allowable number of hours that a locomotive engineer

could work under current rules governing hours of service is 432.

By comparison, a truck driver is allowed to work only 260 per

month while an airline pilot may work only 100 hours per month.

In addition to the sheer number of hours worked, train crews are

on call every hour of the day and may be summoned for work at

any time. Such an irregular schedule surely interferes with train

crews’ ability to plan their lives including their sleep schedules.

These are certainly less than optimal working conditions for anyone but particularly for someone who is driving a freight train

weighing hundreds of tons and potentially carrying a highly toxic

or even deadly substance.

I look forward to hearing from today’s witnesses regarding what

can be done to reduce the human factors that are contributing to

train accidents. With that, Mr. Chairman, I thank you and I yield

back.

Mr. LATOURETTE. I thank you, Mr. Cummings.

Our hearing today is comprised of two panels. The first panel has

the Honorable Joseph Boardman who is the Administrator, of

course, of the Federal Railroad Administration; and Mr. Robert

Chipkevich who is the Director of the Office of Rail, Pipeline, and

Hazardous Materials Investigations at the NTSB.
4

Gentlemen, thank you both for coming. We have received your

written testimony. If you would be so kind as to summarize in five

minutes your observations for us today, we would appreciate it.

Administrator Boardman, welcome, and we look forward to hearing from you.

TESTIMONY OF THE HONORABLE JOSEPH BOARDMAN, ADMINISTRATOR, FEDERAL RAILROAD ADMINISTRATION; ROBERT CHIPKEVICH, DIRECTOR, OFFICE OF RAIL, PIPELINE,

AND HAZARDOUS MATERIALS INVESTIGATION, NATIONAL

TRANSPORTATION SAFETY BOARD

Mr. BOARDMAN. Good morning, Mr. Chairman. Thank you and

Ranking Member Barrow and Committee members.

Human factor issues in rail safety bring all of the issues for safety together in one place. Your Committee has chosen the single

most difficult issue that faces the railroad industry today. Railroads must manage their human assets to meet both customer expectations and stockholder expectations and do so within a socially

acceptable environmental, safety, and security framework. This

framework has safety as the base case for everything else that is

demanded of railroads today. At the center of that base case are

the humans.

Last month, I told you that human factors as a cause has increased by another percentage point to 38 percent of all causes for

train accidents. The human factors that are leading the list of

causes for accidents include switches improperly lined and shoving

movements, in addition to things like leaving cars out to foul main

tracks, improper handbrake use, and a few others that will be included on a new Federal rule now making its way through the

clearance process. That new rule will make cardinal railroad rules

become Federal rules and subject to Federal law if violated and not

cared for.

Today a railroad must meet the demands of a 24-hour, 7-day-aweek global supply chain and logistics management industry to be

successful and therefore profitable. Both railroads and their employees strive to meet those requirements and striving can contribute to taking shortcuts in these cardinal rules. Federal hours of

service rules are nearly 100 years old and were last amended 35

years ago, but much has been learned that would assist in improving hours of service rules and management of the work force not

only in the last 100 years but also in the last 35 and even in the

last 10.

Biological rhythms and what we know now about them should

improve the management of the safety of critical crew members.

The hours of service law doesn’t deal with the issue at all. FRA’s

lack of regulatory authority over duty hours unique to FRA among

all the safety regulatory agencies in the Department, precludes the

FRA from making use of such scientific learning on this issue. Now

that doesn’t mean that the FRA and the DOT have not attempted

to rectify that.

Legislation was submitted four times in the last 15 years, and

it is now in clearance again. In 1991, the legislation failed with opposition from both rail labor and rail management. In 1994, a bill

was enacted but required labor-management petition and failed be-
5

cause a joint petition was received but became moot. In 1998, the

bill was attacked as being too prescriptive and was not enacted. In

1999, the reworked 1998 bill was never granted a hearing. The

FRA has another bill in for clearance, but I must say that the issue

you are holding this hearing on will require more than just legislation to address effectively.

Hours of service raises objection from both unions, whose members want to maximize earnings, and rail companies, who must

meet supply chain demands. But rules alone—no matter how well

written or how well meaning—will not be sufficient to secure the

base case of safe railroading. Voluntary efforts sponsored by the

FRA, like the RSAC and the SACP, now RSOM, are helping to secure the kinds of joint labor-management-regulator discussions of

fatigue management, technology use, and crew scheduling that can

and are improving both our understanding of human factors and

the things that can improve their performance. Continued research

into things like close calls, ECP brakes, and PTC are also critical

to reaching a base case of safe railroading.

My written testimony and, I believe, the testimony of everyone

here today will convince you that the most important element

needed for safety is a human safety culture that starts with this

Government, the executive and legislative and judicial, and extends

through management and labor on down to the individual railroader getting the job done with complete support for his or her

safety and security.

Thank you.

Mr. LATOURETTE. I thank you very much, Administrator

Boardman.

Mr. Chipkevich, welcome to you, and we look forward to hearing

from you.

Mr. CHIPKEVICH. Thank you and good morning, Chairman

LaTourette and members of the Subcommittee. Thank you for the

opportunity to testify today.

Since 2001, the National Transportation Safety Board has investigated 28 railroad and 3 rail transit accidents involving collisions

and over-speed derailments. Most of these accidents occurred after

train crews failed to comply with control signals, to follow operating rules in non-signaled territories, or to comply with other specific operating rules. Our accident investigations have identified

human performance failures related to fatigue, medical conditions

such as sleep apnea, use of cell phones, use of after arrival track

warrants in non-signaled territory, loss of situation awareness, and

improperly positioned switches.

Although the Safety Board has made numerous recommendations to address human performance issues, we have repeatedly

concluded that technological solutions such as positive train control

systems have great potential to reduce the number of serious train

accidents by providing a safety redundant system to protect against

human performance failures. As a consequence, positive train control has been on the Safety Board’s list of most wanted transportation safety improvements for 16 years.

Fatigue is a human performance safety issue that crosses all

modes of transportation. The Safety Board most recently addressed

this issue after a collision between two freight trains at Macdona,
6

Texas. Train crew fatigue resulted in the failure of the engineer

and conductor to appropriately respond to signals governing the

movement of their train. Contributing to their fatigue was their

failure to obtain sufficient restorative rest prior to reporting for

duty because of their ineffective use of off-duty time and train crew

scheduling practices which inverted their work/rest periods.

Minimum rest periods do not take into account either rotating

work schedules or accumulated hours spent working in limbo time.

Limbo time is most often associated with a crew member’s time to

their final release point after expiration of their 12 hour service

limit. Time spent waiting for transportation can be significant and

lead to very long workdays. The Safety Board has recommended

that the FRA require railroads to use scientifically-based principles

when assigning work schedules for train crews, which consider factors that impact sleep needs to reduce the effects of fatigue and to

establish requirements to limit limbo time.

FRA certification requirements for locomotive engineers focus on

specific vision and hearing acuity standards but do not provide

guidance regarding medical conditions that should be considered in

the course of an examination. The Safety Board has recommended

that the FRA develop a standard medical examination form that

can be used to determine the medical fitness of locomotive engineers and other employees in safety sensitive positions.

After two freight trains collided near Clarendon, Texas, the Safety Board recommended that the FRA issue regulations to control

the use of cell phones. At Clarendon, the engineer of one train had

used his cell phone for two personal calls the morning of the accident, one call for 23 minutes and the second call for 10 minutes.

The engineer was on the second call as he passed the location at

which he should have stopped and waited for the arrival of another

train.

Non-signaled territory presents a unique problem for rail safety.

There are no signals to warn trains as they approach each other,

and the avoidance of collisions relies solely on dispatchers and

train crews adhering to operating procedures. After several accidents, the Board has again recommended that the FRA prohibit the

use of after-arrival track warrants for train movements in non-signaled territory not equipped with a positive train control system.

Finally, one of the most serious accidents in recent years occurred in Graniteville, South Carolina. After a freight train encountered an improperly positioned switch, the train was diverted from

the main line onto an industry track where it struck a parked

train.

Measures beyond additional operating rules, forms, or penalties

are needed to prevent accidents such as the one in Graniteville.

The Safety Board recommended that in non-signaled territory and

in the absence of switch position indicator lights or other automated systems that provide crews with advanced notice of the position of switches, trains be operated at speeds that will allow them

to safely stopped in advance of the misaligned switches.

Mr. Chairman, this completes my testimony. I will be happy to

answer any questions.

Mr. LATOURETTE. Thank you very much, Mr. Chipkevich for your

statement.
7

Administrator Boardman, I would like to start with you where

Mr. Chipkevich talked about this medical examination. I think it

would be hard for me to imagine that the Federal Aviation Administration would not have medical examinations for the pilots that

fly airplanes. I have a good friend back home who had a heart attack and he has to go through a pretty rigorous set of tests in order

to have his pilot’s license renewed.

Can you tell us what the FRA’s thinking is on medical examinations for people that drive locomotives?

Mr. BOARDMAN. The FRA has worked on and produced a report

on medical conditions and standards for railroad employees and is

working with the railroads at this point in time. The railroad industry itself, because it began being really self-regulated, usually

had a medical director on staff. Now in recent years, many of those

folks are no longer employed, and we are working with the railroads and with the industry to make sure that those standards are

improved. We do have a drug and alcohol program, which I know

you are well aware of, and it was the first in the country to really

have it.

Mr. LATOURETTE. What about his observation about the engineer

that was on the cell phone. Is the FRA dealing with the cell phone

in the cab issue as well?

Mr. BOARDMAN. Well, we are looking at it as a part, and I don’t

have a specific answer to the cell phone. I know we are looking at

a lot of the human factors and have had a lot of discussions. I will

find out specifically what we have done about the cell phone and

get back to you on that.

[The information received follows:]
8
9
10

Mr. LATOURETTE. OK, I appreciate that.

We are really here, I think, to talk about the hours of service,

and your statement pretty well laid out the attempts since 1991 to

modernize the Hours of Service statute. All of them have died in

some form or another here on Capitol Hill. I think I heard you say

and I happen to agree that it appears that both the labor side and

the business side have a vested interest in keeping things the way

that they are, and that has led to the inability to change this statute that has been around since 1907.

I just read in getting ready for the hearing, when this issue was

addressed in 1998, the previous Chairman of this Subcommittee

posed this question to NTSB back in 1998, and I would like to ask

you what your answer is to this. Do you think that if the Congress

were to offer a system of comprehensive anti-fatigue plans that

were customized for various types of rail operations with these

plans eventually superseding the current statute, or perhaps more

importantly, Congress allowed both labor and management enough

lead time to deal with the compensation and crew requirement

issues in their next bargaining round, that would help break the

deadlock that has so long prevailed. How do you feel about that?

Mr. BOARDMAN. I think it is very difficult. For example, that particular question, I think, summarizes all the reasons why the bills

failed up here, and in particular that at times our plan was too prescriptive. I think 1998 was too prescriptive. We were looking for fatigue management plans from the railroads. Prior to that in 1991,

we were actually going to repeal the hours of service law. So I

think there were some leftover, probably, feelings or thinking at

the time that those fatigue management plans might, in fact, just

do that, and that probably got people riled up.

I think the hours of service should be taken out of the railroads.

As somebody who holds a Class A driver’s license and a pilot’s license, I understand and have made a living from driving trucks.

When I did that, I wanted the maximum number of hours that I

could possibly get in, and so I wanted to be called, regardless. I

didn’t much care at the time whether I had what the requisite

number of hours were. I didn’t even know what the hours of service

law was. I knew I wanted to work. I think that is the difficulty we

are in here.

It is a legitimate concern that the unions have that their membership needs to and wants to gain the income that they feel they

want to if they believe they can work.

I think there have been a lot of experiments that have occurred

with railroads that have tried to figure out how can we give regular

rest periods for folks? In fact, I think there is one railroad, and it

may be a Canadian railroad, that really looked at a way for people

that are from an ′′away′′ terminal to let them knock off to rest. The

problem there was that those employees didn’t want to be stuck at

that ′′away′′ terminal and not be reassigned at the right time to get

back home again. So it is a very difficult issue.

Mr. LATOURETTE. Sure, it is.

I think my last question is, as you told us either at the last hearing or the hearing before and you reminded us again today, the

human factor side has ticked up 1 percent. Basically, the data that

we have looked at is that even though I know Mr. Hamberger
11

when he talks will talk to us about the greatly improved safety

record of the railroads and we all applaud that, I think if you look

at one thing that has plateaued, it is certainly the human factor,

at least from my perspective.

We just had the full Committee mark up a pipeline bill a couple

weeks ago, and there was some discussion about whether we impose hours of service for the people that sit in the terminals on

pipelines. My own view is there are some people, based upon their

medical condition and their health, who can work longer hours

than other people. If you just look at hours of service, you really

are not having a comprehensive fatigue plan for the railroad or for

any industry, and I assume you agree with that and, Mr.

Chipkevich, that you agree with that as well.

Mr. CHIPKEVICH. Yes, sir, there are multiple issues that need to

be considered, not just the hours, the scheduling practices, the inverted schedules, things of that nature.

Mr. LATOURETTE. Sure. Thank you very much.

Mr. Barrow?

Mr. BARROW. Mr. Boardman, I would like to begin with you.

First off, I want to thank you for having your staff meet with us

last week. I appreciate that very much.

I understand from testimony we are going to hear later on today

that data from just one of the four largest Class I railroads shows

that in the first six months of this year alone for that one railroad

alone, 224 crews worked in excess of 14 hours every day, 103 crews

worked in excess of 15 hours a day, 46 crews worked in excess of

16 hours a day, and almost 20 crews every week worked more than

20 hours long. Are you all aware of those kind of numbers?

Mr. BOARDMAN. I am not specifically aware of those, but it

doesn’t surprise me, when you add in the limbo time like you

talked about earlier, that those kind of numbers exist.

Mr. BARROW. Without moving into the trickier area of how we

are going to change the Hours of Service Act and who is going to

make the calls on that, what is the FRA doing to enforce the rules

we have on the books?

Mr. BOARDMAN. I think one of the things that made it very difficult for us is that a person can work 12 hours a day and then

there is limbo time beyond that. When the Supreme Court ruled

that that limbo time was not considered work time, it fell outside

the area of those 12 hours of work. We don’t have the same authority that others have to make changes in that area. So we have to

wait until a change in the hours of service law to get at it.

Mr. BARROW. So basically you are saying the Supreme Court has

tied your hands with its interpretation of the Hours of Service law.

Mr. BOARDMAN. Yes, sir.

Mr. BARROW. Well, let me shift ground a little bit for a second.

I want to address something to Mr. Chipkevich.

You know someone once said that if you have the ability to think

about something without thinking about the thing to which it relates, you have the quality of mind to be a good lawyer. I am not

exactly sure that was a compliment as a member of that profession,

but I want to talk about something to which this problem of hours

of service relates and that is staffing levels in general.
12

I gather, for example, that one of the human factors that contributed to the collision in Graniteville that caused a number of people

to die just about the most ghastly death that you can experience

was not fatigue but too few people trying to do too much work,

working within compliance of the hours of service law, that switches were left in the wrong position because too few people having

too much work to do had to knock off in order to comply with the

act.

That sort of brings to my mind an unintended consequence or at

least an unintended effect of a basic reform like an hurs of service

rule when you apply it to different staffing levels. It seems to me

that an hours of service rule makes perfectly good sense as an approach to how to ration and allocate the work to be done when you

have enough people to ration it amongst, but you have a real problem with something like an hours of service law if you have too few

people doing the work to begin with. Not only do you have the

problem of people working too hard and getting tired, you also have

not enough time for the work force to do the many things that have

to be done. Applying an hours of service type methodology to a

work force where you have more than enough people doing the

work means you just have to spread it out amongst the right number of people, the right number of chores for the right number of

people.

It is very problematic when you have too much work to do for

the number of people you have. That problem can arise in either

two contexts. Either there is not enough work out there to hire and

you go out there and you can’t buy it up because there is not

enough of it, but you still have more than you can find people to

do, or you have the problem of people trying to make too few people

do to much work. We are actually clamping down on the manpower

so much that you have so much to do that folks can’t comply with

the hours of service law and still get everything done.

I know that was a factor in Graniteville. You didn’t have people

who were too sleepy. You had folks who had to knock off on time

and just had to get off the job too soon, and that was one of the

factors that contributed to leaving a switch open, and you had a

track speed collision with a parked train on a siding. These were

folks were trying to comply with the law. I know that is not the

general direction we are going in, but that is a problem. If you

have staffing levels that are inadequate, this whole approach is

going to hurt you in other ways besides the most fundamental way

of people working too long until they are dropping at the wheel.

What is your concern about staffing levels? Are you all looking

at that any? Is that an issue?

Mr. CHIPKEVICH. We certainly noted in the Macdona accident investigation that in the San Antonio area where there was a significant amount of business during the period of 2004 as well as problems with the number of crews available, that we identified 42 percent of the time in that particular area, crews were working greater than 12 hours and then some crews working certainly greater

than 15 hours and some crews up to as much as 23 hours, considering the significant amount of limbo time that was added to their

regular work time.
13

Compounding that problem was with all that additional limbo

time, then those crews were not available again for another 10

hours or another period before they could be used again, which sort

of exasperated the problem. That affected the scheduling practices

of calling up crews earlier because other crews are not available because of limbo time and things of that nature.

So, yes, sir, we have seen that as a problem.

Mr. BARROW. Now going back to the subject I wanted to avoid

in the beginning, I am just kind of interested in your assessment.

How do you think we need to fix the Hours of Service Act? How

do you think we go about doing that? Should Congress fix it legislatively and address the problems caused by the Supreme Court’s interpretation of the act, or should it be addressed in the way it is

with other Transportation Agencies by delegating rulemaking authority to the FRA? I want the Transportation Board’s input on

that in particular.

Mr. CHIPKEVICH. We have certainly supported the FRA going to

the Congress to ask for changes in the legislation to give them

some authority to require some changes in programs, fatigue management programs, to look at scheduling practices that affect crews

being called.

Mr. BARROW. You have supported in the past the idea of delegating the rulemaking authority to the FRA. Is that still your position?

Mr. CHIPKEVICH. Yes, sir, that has not changed.

Mr. BARROW. How about you, Mr. Boardman? How do you think

we ought to do it? Should Congress fix it in statute, or should Congress amend the statute to give the rulemaking authority to the

FRA to fix the problem subject to Congress’ monitoring and control?

Mr. BOARDMAN. I think that FRA could do the rulemaking if we

were given the authority to do so.

Mr. BARROW. Thank you.

Mr. LATOURETTE. I thank the gentleman.

Mr. Petri, do you have any questions? I know you just got here.

OK, thank you very much.

Well, gentlemen, thank you very much for your testimony. We

appreciate not only your testimony but your answering our questions, and you go with our thanks. Thank you very much.

Our second panel this morning is going to be comprised of multiple witnesses: Dr. Martin Moore-Ede, who is the Chief Executive

Officer of Circadian Technologies, Inc.; Mr. James Stem, who is the

Alternate National Legislative Director for the United Transportation Union; Mr. Edward Hamberger who, of course, is the President and Chief Executive Officer of the Association of American

Railroads; Mr. John Tolman, who is the Vice President and National Legislative Representative for the Brotherhood of Locomotive

Engineers and Trainmen; Mr. Richard Timmons, who is the President of the American Short Line and Regional Railroad Association; and Mr. W. Dan Pickett, who is the International President

of the Brotherhood of Railroad Signalmen.

I want to thank all of you for coming this morning. As with the

previous panel, we appreciate your timely submission of your written testimony. We have had the chance to review it. If you would
14

be so kind to summarize your testimony in five minutes, we would

appreciate it very much.

Doctor, we are glad you are here, and we look forward to hearing

from you.

TESTIMONY OF MARTIN MOORE-EDE, M.D., PH.D, CHIEF EXECUTIVE OFFICER, CIRCADIAN TECHNOLOGIES, INC.; JAMES

STEM, ALTERNATE NATIONAL LEGISLATIVE DIRECTOR,

UNITED TRANSPORTATION UNION; EDWARD HAMBERGER,

PRESIDENT AND CHIEF EXECUTIVE OFFICER, ASSOCIATION

OF AMERICAN RAILROADS; JOHN P. TOLMAN, VICE PRESIDENT AND NATIONAL LEGISLATIVE REPRESENTATIVE,

BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN; RICHARD F. TIMMONS, PRESIDENT, AMERICAN SHORT

LINE AND REGIONAL RAILROAD ASSOCIATION; W. DAN PICKETT, INTERNATIONAL PRESIDENT, BROTHERHOOD OF RAILROAD SIGNALMEN

Dr. MOORE-EDE. Thank you, Mr. Chairman. I appreciate the invitation to address the Committee.

Fatigue, as we all know, has been a safety hazard that has been

recognized since the dawn of railroads, and indeed the railroads

were the first transportation mode to put in rules and, in fact, the

laws to do with hours of service. Other transportation modes followed quite some decades behind in some cases.

Of course, what has happened is that the work that those in the

research community, like myself, did in the 1970’s and 1980’s demonstrated that the physiology of sleep and biological clocks and circadian rhythms was rather different than was envisaged by those

who had written those original regulations and laws in the earliest

part of the 20th Century. Indeed, the simple hourglass model of

measuring the number of hours on duty and then number of hours

of rest basically, fundamentally doesn’t work. In fact, many other

factors are rather more important than that in terms of determining whether an employee is going to be fatigued or not.

Over the years since then, tools have evolved and have been applied in a wide variety of industries, in fact, across virtually every

industry that runs 24/7. Having experienced and worked in many

of these industries including the railroads, I think the railroads are

to be commended as one of the most progressive in terms of developing fatigue management tools and training programs and sleep

apnea screening processes and so forth and systematically working

at this issue and putting them into place.

The sobering fact, however, as has been mentioned earlier, is

that when we look at the target which surely all these efforts

should be addressing which is the number of human factors accidents corrected by the number of million train miles—so we are not

just talking about aberrations based on the growth of the industry—that has been at a plateau since 1985. If you look at the more

focused data on mainline and siting data for human factors accidents per million train miles, that has been at a plateau since 1995

for the last 10 years. Fatigue is still very much a factor, we all recognize that, and fatigue causes accidents. So for those particular

reasons, it is not that the fatigue is not an issue.
15

The real problem, I believe, is that we are locked in a 100 year

old paradigm of regulations and laws based on managing inputs

rather than outputs. Indeed, if you look at any way of managing

a business, you don’t measure a business by the amount of raw materials it consumes. You measure it by the products that it produces and the bottom line results on its financial books.

Fixing the hours of service, however, is really not the answer. In

other words, you could not write rules that would work without

them being overly complex, and I think anybody who contemplates

rewriting or tweaking the hours of services rules and regulations

and laws should look very carefully at what is happening with the

FMCSA right now and the trucking hours of service regulations

which are under multiple attacks and are being tossed out in the

courts and rewritten and tossed out again. Indeed, that is an ongoing process because writing prescriptive rules is a method that

really doesn’t work.

The solution, I believe, is to look at a new paradigm, and the paradigm that is actually pioneered into regulation by the Nuclear

Regulatory Commission is called Risk-Informed Performance-Based

Safety Management. What it means that you develop models which

you determine that accurately predict risk and then you ask the industry to manage to reduce that risk, that measurable output risk,

the risk being human factors accidents per million train miles, for

example, as a target. This process of constantly feeding back as to

whether any intervention is actually fixing that risk is the way you

progressively learn and progressively improve.

It now is the wholesale way of managing risk in the nuclear

power industry, in all sorts of fire standards for Federal buildings,

a whole number of different ways by using risk models. It is possible to build risk models now, and certainly the science and the

technology to do that is radically improved. The insurance industry

relies on predictive risk models now. It is 25 percent better than

the best human adjuster in underwriting, for example. Over 50 percent of the Fortune 100 use predictive risk models in business intelligence, using the vast amounts of data to predict what, in fact,

are the outcomes, the best of the bottom line, i.e., the output.

We have actually taken the step and moved that into transportation in trucking. By building risk models which, first of all, model

fatigue risk, we can demonstrate some very interesting rules,

namely that it is only when you get to the extremes of fatigue risk

that you get enormously, rapidly increasing levels of risk.

If you mine those nuggets of where the risk is and fix those particular areas, you get major improvements in performance. You can

get 50 percent reductions in accident rates and personal injury, 70

percent reductions in financial losses. It works best when you don’t

just deal with fatigue in your risk models, but you actually recognize that fatigue interplays with many other aspects of safety, and

if you put them together, you can get a 25 percent lift in performance of the models by building comprehensive models of human

error risk and then having individual managers use their discretion, their knowledge, their individual situations and their local

conditions in order to address it.

I think the time has come, Mr. Chairman, that we need to recognize hours of service regulation was the solution of the last cen-
16

tury. It is 100 years old. In fact, the solution for the next century

has to be predictive risk modeling. I don’t think I am looking for

wholesale abolition of hours of service or hours of service laws and

regulations.

In fact, I think steps that have already been laid in the railroad

industry to move in the right direction by building all these tools

and developing experience with fatigue management. With the cooperation and very much the partnership of the unions in this as

well as the railroad management, all sorts of tools have been developed.

I think the next step is to basically improve this process of risk

managing to provide incentives to build risk models and then eventually as those become more and more effective, one has the ability

to sort of wean the industry away from the hours of service laws.

I thank you for your time and consideration.

Mr. LATOURETTE. I thank you, Doctor, not only for your testimony this morning but for your very useful written testimony.

Mr. Stem, welcome, and we look forward to hearing from you.

Mr. STEM. Thank you, Mr. Chairman and Ranking Member Barrow. On behalf of the United Transportation Union, we appreciate

the opportunity to appear today.

I am going to focus my remarks today in summary of my written

testimony on training and the significant effect that inadequate

training has on safety. I am also going to discuss the effects of

acute and cumulative fatigue on situational awareness of safetycritical employees. Also in our testimony today, we will discuss the

responsibility of both employees and railroad supervisors to comply

with Federal law, Federal regulations, and operating rules that

deal with safety issues.

I want to make the following major points in my testimony.

Training of new employees working in safety-sensitive positions is

inadequate and not focused on safe operations. New employees

should not be allowed to work unsupervised until they accumulate

at least one year’s experience. Fatigue of safety-sensitive employees

is not addressed in any rail operational safety plan.

We are asking Congress to take appropriate action to amend the

Hours of Service Act to resolve this issue. Congress should act to

restrict each tour of duty to 10 hours and no more, to also establish

a cumulative total for covered service employees for each seven day

period of time, and Federal law and Federal regulations apply to

all railroad employees including railroad supervisors.

We are pleased to report to you that UTU considers ourselves to

be FRA’s partner working together to improve safety in our rail industry. We appreciate the positive relationship that Administrator

Boardman, Associate Administrator for Safety Jo Strang, and their

staff have developed with both labor and management. We believe

that FRA is on the right track and fully comprehends the complex

safety issues confronting our industry today. We also have a strong

opinion that Congressional intervention is now warranted to give

FRA more resources and more authority to have a more immediate

impact on the increasing numbers of train collisions and major accidents that continue to occur.

Accidents caused by human factors account for about 38 percent

of total train accidents. This category of accidents, as you already
17

heard this morning, is increasing. Inadequate training programs

for new employees, their lack of practical on the job experience, and

absence of familiarity with the work place physical environment,

substandard recurrent training requirements for existing employees, and the unacceptable prevalence of fatigue throughout the rail

industry are the causes of these accidents.

We believe it is appropriate that we express our enthusiasm to

the Committee this morning for the process that Administrator

Boardman and FRA have established to address training issues. A

working group consisting of representatives from the Brotherhood

of Locomotive Engineers and Trainmen, UTU, FRA, all the railroads, and recognized training experts has been formed and will

meet for the first time later today.

We are very optimistic that this proactive working group can

move quickly to find and implement solutions that will have an immediate positive effect on the training and qualifications of operating crew members. We salute both FRA and the AAR for their willingness to contribute their resources in this effort to make training

in the rail industry a safety advantage instead of the most significant safety issue today.

The rail industry will have more than 80,000 new employees in

the next five years. The rail industry is also experiencing an unprecedented retention problem involving new employees. Based on

reports from the field, new employees are resigning and leaving the

industry because they are dissatisfied with the quality of training,

they are uncertain of their skills and understanding of the work

processes, and they are understandably uncomfortable with their

level of responsibility. Exit interviews conducted with former new

employees indicate that their training did not prepare them for

service in what they believe is a dangerous work environment and

they did not receive the opportunity to become accustomed to the

realities of working a self-supervised position with irregular shift

scheduling and uncertain rest day opportunity.

On fatigue, unless a human being knows well in advance what

time they must report to work, they cannot arrange to be rested

and fit for duty. The railroad industry functions on a 24/7 schedule

with continuous operations from coast to coast. This is not an excuse for the current position of the railroads holding that their employees do not require advance knowledge of the time they must

appear for their next assignment in order to manage their lives and

obtain sufficient sleep before reporting for work.

In summary, Mr. Chairman, UTU today is calling on Congress

to act to amend the Hours of Service Act to permit only 10 hours

of service. This means that from the time an employee reports for

service and is then released at the final terminal will not exceed

10 hours. If the Supreme Court offered an interpretation of language in the statute, then we obviously aren’t going to argue with

the Supreme Court, but we are here today, asking you to change

that language. We thank you for the opportunity to appear.

Mr. LATOURETTE. Mr. Stem, I thank you very much.

Mr. Hamberger, welcome to you, and we look forward to hearing

from you.

Mr. HAMBERGER. Mr. Chairman, on behalf of the member of the

Association of American Railroads, thank you for the opportunity
18

to discuss issues surrounding rail safety, the Hours of Service Act,

and fatigue in the rail industry.

The railroad industry places extraordinary importance on safety,

and our safety record bears that out. Since 1980, railroads reduced

their overall train accident rate by 65 percent and the rate of employee casualties by 79 percent. In 2005, in fact, the employee casualty rate was the lowest in history. The railroads have lower employee injury rates than other modes of transportation and most

other major industry groups. In addition, U.S. railroads have employee injury rates well below those of most major European railroads. Having said that, we certainly are not content to rest on our

laurels.

We are particularly concerned about accidents related to human

factors which were responsible for the largest number of train accidents over the past five years. Although the overall accident rate

involving human factors has remained fairly constant in recent

years, most involve low speed yard accidents. In fact, the rate of

human factors-caused accidents involving freight trains on main

and siding tracks in 2005 was 75 percent below the 1980 level and

46 percent below its level in 1990.

Clearly, it is not in the best interest of railroads to have employees too tired to perform their duty safely, and that is why railroads

have long partnered with their employees to gain a better understanding of fatigue-related issues and find effective, innovative solutions to them.

I salute you, Mr. Chairman, for placing me between Mr. Stem

and Mr. Tolman because it is only by working together with our

unions that we can come up with effective solutions. The solutions

to fatigue are inextricably linked to our collective bargaining agreements, as Mr. Boardman pointed out, and it is therefore necessary

that we go forward to address that issue together.

One lesson we have learned is that factors which can result in

fatigue are multiple, complex, and frequently intertwined. Because

of this, there is no single solution. Scientific research to date suggests that flexibility to tailor fatigue management efforts to address

local circumstances is key to the success of these programs. Significant variations associated with local operations, local labor agreements, and other factors require customized measures. Consequently, as Dr. Moore-Ede pointed out, a one size fits all Government approach is unlikely to succeed as well as cooperative efforts

tailored to the individual railroads.

Combating fatigue is a shared responsibility. Employees need to

provide an environment that allows the employee to obtain necessary rest during off duty hours, and employees must set aside

time when off duty to obtain the rest they need.

Mr. Barrow referred to an earlier NTSB report and questioned

what the industry has done. I refer you again to Dr. Moore-Ede

who indicates that we are in the forefront of industries in addressing fatigue management programs. A number of different approaches have indeed been developed. For example, napping is permitted for train crews under certain circumstances. Sleep apnea

screening is also conducted to identify employees with sleeping disorders.
19

Recognizing that some employees might be reluctant to come forward for treatment, management and labor jointly produced and

circulated a statement saying that sleep disorder will be addressed

in the same way as any other medical condition. Rail has provided

improved lodging at away from home facilities including blackout

curtains, white noise, and increased soundproofing. Railroads and

unions have agreed in some cases to additional scheduling tools

such as providing more predictable calling windows between shifts

to provide an improved opportunity for rest.

All AAR member railroads offer fatigue education programs for

employees and their families, as Mr. Barrow suggested. The importance of education in this area cannot be overstated since the success of fatigue-related initiatives is highly dependent upon the actions of employees off duty. Railroads favor continued research on

the subject and will continue to work with rail labor to find and

implement new ways to combat fatigue. For example, we are cooperating with the FRA on a project to develop a fatigue model

that could be used to improve crew scheduling. One railroad has

already adopted such a model that has been in use in Australia.

We are also developing new technology that offers promise to reduce the number of human factors accidents including those related to fatigue. For example, several major railroads are currently

developing and testing train control systems that prevent accidents

by automatically stopping trains before they exceed authority.

Our commitment to safety is absolute, but again, combating fatigue is a shared responsibility. Railroads recognize they must provide their employees with sufficient opportunity to rest. For their

part, employees must use a sufficient amount of the time made

available to them for that rest.

In sum, the industry recognizes the importance of continuing to

focus on eliminating all human factors accidents including fatiguerelated incidents. We will continue to work with the FRA and our

unions to build on the progress we have made to date.

Thank you, Mr. Chairman.

Mr. LATOURETTE. Mr. Hamberger, thank you very much for your

excellent written testimony and also your testimony this morning.

Mr. Tolman, welcome to you, and we look forward to hearing

from you.

Mr. TOLMAN. Thank you, Mr. Chairman and members of the

Subcommittee.

My name is John Tolman. I am a Vice President of the Brotherhood of Locomotive Engineers and Trainmenm, Division of the

Teamsters Rail Conference. The Brotherhood of Locomotive Engineers and Trainmen represents 33,000 members, and there are

70,000 members in the Teamsters Rail Conference.

My written testimony addresses three major subjects: technology,

training, and fatigue.

The subject I would like to discuss today is fatigue and how the

railroad’s manipulation of the Hours of Service Act and the FRA

regulation adds to the problem. Even worse, the railroads are in

denial that they are part of the solution.

For a few minutes, I would like to focus on one aspect of fatigue,

and that is the widespread abuse of limbo time and leaving crews

on their trains for outrageous lengths of time. Operating employees
20

are prohibited from working more than 12 hours in any 24 hour

period with limited exceptions. If a train cannot reach its destination with 12 hours, the crew must cease all work prior to expiration

of the 12th hour, at which point they are considered outlawed. Currently, time spent in deadhead transportation from duty assignment to the place of final release is neither time on duty nor off

duty, meaning the outlawed crew is in limbo status with respect to

the hours of service while deadheading from their stop point to the

final off duty point.

The statute is clear concerning the time consumed during the actual deadhead but is silent about the time waiting for transportation to arrive. Although a crew’s hours of service status is in

limbo, its obligation under the railroad operating rules are not.

Crews are often left on trains until their relief has arrived. The

crews must obey the operating rules requiring that they remain

alert and observant and they must take action to protect the train

against unanticipated mechanical problems or vandalism.

By the mid–1990’s, a dispute over how to classify the time an

outlawed crew spends waiting for deadhead transportation to arrive had reached the courts. The Supreme Court resolved this conflict in 1996 in holding that Congress had intended that the time

spent waiting for deadhead transportation from a duty site should

be limbo time. The ensuing decade has seen both a number of

crews stranded, waiting for transportation and the length of limbo

time increase. A November 2001 FRA opinion letter stated that requiring a crew to attend to its train up after 12 hours is limbo time

if the crew is permitted to leave the train when its relief arrives.

After the issuance of this opinion letter, the incidents of limbo time

skyrocketed.

Over the past nine months, the BLET has received thousands

upon thousands of reports of excessive work hours which we are assembling into a usable form. The preliminary information from

these reports is shocking. Data prepared by one of the four largest

Class I railroads shows that in 2002, the average number of about

90 crews a day had duty hours longer than 14 hours and 33 had

tours of duty over 15 hours. Last year, the number of crews exceeding 14 hours had more than doubled to over 218 per day, and the

average number of crews exceeding 15 hours had more than tripled

to 105 per day.

Things are no better this year as Ranking Member Barrows referred to. The number of crews are almost the same with a slight

increase in the first six months of 2006. One point I would like to

make is almost 20 crews every week for the first six months of this

year had worked a tour of duty more than 20 hours long. That is

12 hours of work followed by 8 hours of limbo work.

Three weeks ago, the NTSB determined the 2004 Macdona,

Texas, collision and toxic chlorine release in which three people

were fatally injured was caused by a fatigued crew. The crew was

criticized for not obtaining sufficient rest prior to reporting for

duty, and UP was criticized for crew scheduling practices that inverted work/rest patterns.

Last Thursday, the NTSB issued a safety recommendation urging the FRA to establish requirements that require train crew

member limbo time to address fatigue.
21

In 2002, the Collision Analysis Work Group reviewed 65 accidents. The group found that fatigue was a factor or a contributing

factor in 30 percent of the accidents. Given the 1996 Supreme

Court ruling as interpreted by the FRA, we are unsure whether the

FRA can address this recommendation via regulation alone. Indeed, it may develop that the only solution to the limbo time crisis

is legislative. In either case, the elimination of abusive limbo time

is one fatigue-fighting option to implement today, and we fully support that effort.

Thank you, Mr. Chairman.

Mr. LATOURETTE. I thank you very much, Mr. Tolman.

Mr. Timmons, welcome to you, and we look forward to hearing

from you.

Mr. TIMMONS. Thank you, Mr. Chairman, and good morning to

you and Committee members. I appreciate the opportunity to appear this morning on behalf of the American Short Line and Regional Railroad Association.

As many of you know, nationwide there are over 500 short line

railroads operating nearly 50,000 miles of track and employing

over 23,000 individuals.

As I will discuss in a moment, there are differences in the operating environments of the short line railroads and their Class I

counterparts, and those differences make this somewhat easier for

us to discuss in the short line industry. Notwithstanding those differences, I want to emphasizes our support for many of the points

made by Mr. Hamberger in his remarks. As I have said previously

in each of these hearings, the efficiency, competitiveness, and profitability of the small railroad industry is directly related to the efficiency and competitiveness of our Class I connections.

Mr. Hamberger’s observations on fatigue and hours of service are

very important, and I hope the Committee will take those observations to heart.

The tempo of short line railroading is different than that of the

Class Is and that difference affects how we think about the issues

you are considering today. Short lines are generally operating in a

much smaller geographic area than the Class I railroads. These

shorter distances combined with slower speeds and smaller consists

produce more predictable work schedules and more routine patterns of interchange and delivery. We are better able to anticipate

workloads, design train and car trip plans, regularize train crew

schedules, plan for maintenance crew operations, and right of way

equipment inspection programs.

This more routine and predictable tempo has contributed to what

we believe is an impressive and improving safety record as documented by the FRA’s safety statistics. In 1990, the Class II and

Class III industry experienced 651 human factors accidents. Last

year, we had 242 and to date this year, we have had 63. Any accident, of course, is one too many and tireless effort is required to

continue to improve our record, but the trend line for small railroads has been headed in the right direction for some years now.

Our improving record is also evidenced by another set of numbers used by short lines. Class II and Class III railroads rely on

a severity index to assess our safety performance. We believe this

more accurately measures our progress and allows us to target re-
22

sources in areas where they can do the most to alleviate the worst.

For example, 10 years ago, the injuries among short line railroads

totaled 1,426. In 2005, the serious injuries totaled 25, and the nonsevere were 746.

While I believe the nature of our operations contributes to our

favorable safety record, there are two other factors that have contributed. First, we take safety training very seriously, and we at

the association are constantly looking for ways to enhance existing

training and to encourage individual short lines to do more of it.

In January of 2005, we entered into a new partnership with the

National Academy of Railway Sciences to facilitate short line use

of this outstanding training facility. Short line attendance has increased steadily since the new partnership was announced.

Second, the short lines are making every effort to improve our

track. As you know, the short line industry inherited the worst of

the Nation’s track infrastructure when we began taking over these

properties in the 1980’s. Today short lines plow almost a third of

their annual revenues back into the infrastructure improvement

programs that they all have. This is more than any other industry

in the Country. Beginning in 2005, we have been able to increase

that investment thanks to the new rehabilitation tax credit that so

many of you were helpful in securing. AS our track improves, our

safety record will improve, and we think the statistics I mentioned

bear that out.

I am encouraged by our improving record, and I am optimistic

that continued attention to safety training and track upgrades will

help us to continue that improvement well into the future, but

there are other factors that we must focus on to continuously avoid

accidents. I will not dwell on these in any detail but believe that

it is important to highlight them very briefly.

Drug and alcohol testing for the short lines must be steadily pursued with serious determination. This is an ongoing human factors

aspect of all work forces today, and we take it very seriously.

Failure to comply with established rules and procedures is a critical human factor dimension that requires constant attention. To

counter this compels consistent and tireless emphasis and correction by supervisors. Taking shortcuts and ignoring established

rules must be corrected through observation, counseling, and retraining.

Ensuring adequate supervisory oversight is the most challenging

and in some respects, the most important human factors consideration for the small railroad industry. Not checking, not validating,

not compelling compliance, and not taking appropriate corrective

actions all lead to bad habits, potential accidents, and poorly managed railroads. To counter this requires vigilance by supervisors at

every level. When problems are identified, they must be corrected

immediately.

Recently, the ASLRRA has initiated the SAVE program. The

Safety and Validation Evaluation inspection places our most experienced operating staff members on the short line system for several days to assess and educate short line railroaders at their work

sites. While a small step, the initial returns are significantly improving operating procedures and compliance with rules.
23

Short line operations are different than those of Class I railroads,

and those differences have made our job somewhat easier when it

comes to the human factors issues. Nonetheless, we are far from

immune from human errors and such issues as fatigue. It is for

this reason that we introduced the fatigue program for Class II and

Class III railroads in March of 1999. We are proud that our numbers are improving, but of course we strive to do better.

I thank you, Mr. Chairman, for your attention and would be

pleased to answer any questions that you may have at the appropriate time. Thank you, sir.

Mr. LATOURETTE. Thank you very much, Mr. Timmons.

Last but certainly not least, Mr. Pickett, thank you for coming,

and we look forward to hearing from you.

Mr. PICKETT. Thank you, Mr. Chairman and members of the

Committee.

Railroad signalmen install, maintain, and repair the signal systems that railroads utilize to direct train movement. Signalmen

also install and maintain the grade crossing signal systems used at

highway-railroad intersections.

Before discussing the role that human factors play in rail safety,

it should be noted that the BRS believes that many of the accidents

and fatalities that are attributed to human factors are actually due

to other factors. As you have heard today, over one-third of all rail

accidents are attributed to human factors. Railroads often list the

cause of an accident to human factors. However, when the facts are

reviewed, the facts show that it was not human factors after all.

For example, signalmen currently work under an hours of service

law that was first implemented for railroad signalmen in 1976. It

was written as a 12 hour maximum service law during a 24 hour

period, and an exception was made that in the case of an emergency, then an signal employee could work up to 4 additional hours

in a 24 hour period.

The law worked well for years, and railroads would limit signal

workers to 12 hours of work in a 24 hour period. Now, however,

signal employees have seen the law become a 16 hour law. Many

railroads have policies that state that any signal problem is an

emergency.

Railroads tend to focus on the financial bottom line. As such, the

railroads have allowed staffing levels to fall below the minimum

needed to perform basic safety functions. Railroad signalmen levels

have shrunk over the last decade. Railroads are not keeping up

with the basic attrition, let alone preparing for the increase in retirements that are going to occur over the next 10 years.

While the railroads are reducing manpower levels, they are also

trying to increase the use of contractors to perform signal work.

Railroads reduce the staffing levels to a point where the remaining

signal employees cannot perform all of the work required, and then

the come to us, crying that they need to contract out more signal

work.

Some people may argue, incorrectly I feel, that contracting out is

a solution for the railroads. In reality, it will only cause more accidents, collisions, and deaths. What the railroads do not mention

when they plead that they need more contracting out is that contractors are not properly trained and are not covered by the Hours
24

of Service Act and many other laws and regulations governing railroad workers.

The answer to reducing or eliminating human factors-caused signal accidents is not to hire contractors, but it is to prepare for the

future by hiring and properly training signal employees to ensure

the signal systems are safe. Training and education is a key preventive measure that needs to be considered. Rail labor considers

it equally important to provide advanced training to improve the

skills of the professional men and women who install and maintain

safety systems for the rail industry. Training can and will improve

safety.

Under an FRA initiative, the Brotherhood of Railroad Signalmen

recently participated in a study entitled: Work Schedules and Sleep

Patterns for Railroad Signalmen. The study collected two weeks of

data from a random sample of actively working U.S. railroad signalmen. Most of the fatigue comments were related to being on call

24 hours a day, 7 days a week, travel, unscheduled work, and poor

sleep. Also mentioned during the study were the difficulties of

achieving meaningful sleep when sleeping away from home. A

major disrupter of sleep was the unscheduled or emergency work

situations that arise during the night.

There is little question that more must be done to reduce human

factors accidents in the rail industry. The rail industry, the FRA,

and rail labor must continue to explore the true cause of accidents

and stop taking the easy route of blaming the individuals. Humans

do make mistakes. That is indeed the essence of being human.

However, when a signal employee makes a mistake while working at a railroad crossing or on train signals, it is not always his

fault. When you examine events leading up to the mistake, we

often find that there were contributing factors that were ignored

and not addressed. When conditions are such that it is just a matter of time that a signal employee will fail, to blame the individual

for the mistake does not get to the real reason as to why an accident happened, and it definitely will not get to the cause in order

to prevent the mistake from ever happening again.

There is much to accomplish to make the Nation’s railroads

safer. I hope we can work together to see that the improved safety

and practices become a reality.

On behalf of all rail labor, I thank you for the opportunity to testify before this Committee.

Mr. LATOURETTE. Mr. Pickett, thank you and thank you all for

your testimony and your coming here today.

Doctor, I think I would like to start with you. There is some at

least anecdotal evidence that fatigue is a greater factor following

a day off or for someone returning from vacation. When you were

talking about the application of your Risk-Informed PerformanceBased Safety Management to the trucking industry, I noticed in

your testimony, you discuss telematics to track the time off that

the truck drivers have.

In the risk management type program that you are describing,

how do you ensure that somebody who has time off is really resting

as opposed to doing things that actually add to the fatigue? Is there

a medical test that can determine whether or not a person is actu-
25

ally fatigued, despite the fact that he or she may have had time

off?

Dr. MOORE-EDE. Well, first of all, of course, what people do in

their own time is hard to control. The first part of the answer is

in predictive risk modeling, one can, in fact, have pretty good models on how people on average behave, and you can get a lot of safety improvement by using that.

In other words, we can predict that an individual coming off a

shift at 11:00 a.m., for example, is unlikely to sleep more than four

or four and a half hours, just because of the way the body clock

works, whereas an individual coming off at shift at 11:00 at night

has a much greater probability of sleeping seven or eight hours,

but whether they actually do it or not, of course, is always an issue

and that is hard to manage.

The second part of your question relates to technologies that are

emerging about fitness for duty testing. The fitness for duty concept, of course, is being most useful when you are talking about

drug and alcohol testing because, in fact, the deterioration, the

level of impairment improves with time. The problem with fatigue

testing is the level of impairment increases with time. You can be

perfectly fit at the start of a duty period, but six or eight hours

later, you might be unfit for duty. So that technology is a bit more

limited.

As I say, considerable strides can be made in predictive modeling

by building proper factors that can estimate what the average employee is able to obtain in terms of rest and obviously by reinforcing that by training programs of the sort that are quite widely used

now in the industry.

Mr. LATOURETTE. You talked about the application of the RiskInformed Performance-Based Safety Management to the Nuclear

Regulatory Commission and also the trucking industry. Turning to

the nuclear industry first, have these strategies been in place long

enough to have measurable results relative to performance and

safety improvement or lack thereof?

Dr. MOORE-EDE. I think there have been very good reviews back

in terms of the flexibility that has enabled local managers to respond to it. I don’t have a very good recent update and exact numbers on that.

I do have much more relevant data, direct data from the trucking

applications where we have seen very significant improvements,

and we have monitored this now over multiple years. So we have

actually had about four or five years of experience now of operating

trucking fleets where you are continuously feeding back the risk of

every employee.

In fact, we are now at a stage where we can do predictive risk

of who should you call in next, who will in fact be likely to be impaired when called in now, and who is likely not to be impaired.

Certainly, these tools have quite substantially reduced accident

rates and risks and costs, a 50 percent to 70 percent reduction in

costs and so forth. We certainly have the track record of understanding that Risk-Informed Performance-Based safety processes

do work.

Mr. LATOURETTE. That 4 to 5 years and the 50 to 70 percent reduction in accidents, is that included some place in your testimony?
26

Dr. MOORE-EDE. Yes, it is in the testimony. It also has been reported in various scientific meetings including meetings sponsored

by the Department of Transportation, and recently, it certainly has

been reported as scientific results.

Mr. LATOURETTE. I know you were in the room when Administrator Boardman talked about the fact, and I think you talked

about this hours of service thing as sort of being an hourglass, a

type of measurement, and the fact that there have been attempts

to change this for the last 15 years since 1991.

Based upon your research and understanding, are the things

that you have applied to the trucking industry and the nuclear industry, things that will require the Congress to make changes in

the hours of service statute, or do you think that they could be implemented by the industry?

Dr. MOORE-EDE. Well, the first stage is, as I say, I wouldn’t

throw away the safety net of the Hours of Service Act instantly.

However, I think we are not going to get away from this plateau,

and I think we can look at the improvements that were quite dramatic 20 odd years ago, but really when you get to a plateau like

that, you have got to change the game and changing the game

means not just saying, well, this is just too difficult to do. There

are all the collective bargaining agreements. We have got the regulations. We can’t do anything.

Instead, it is to actually create an environment where, in fact,

there are rewards as it were for those pioneer and move in safetybased management. One model of that, for example, is in the Australian trucking industry where much more flexible business arrangements are allowed for companies who put fatigue management plans and processes of managing that risk and can demonstrate improved ways of doing it.

So, basically, I think the strategy there is to say if a railroad

were to come to you and demonstrate that predictive modeling was

in place, then there will be certain ways that it could deal with

such issues such as the limbo problem. I mean the limbo problem

is perfectly, directly modelable as a risk, and we could actually figure out where, in fact, the risk boundaries are rather than dealing

with an issue where quite frankly it is very hard to correlate the

data to know where the right balance is. I think that is just scientifically determinable, and as I say, the predictive risk models

are exactly the way to look at how you manage that sort of issue.

Mr. LATOURETTE. Thank you very much.

It is my intention to do a couple of rounds.

Ms. Johnson?

Ms. JOHNSON. Thank you very much.

Pilots with airlines are allowed to fly so many hours and they

must take off so many, and truck drivers are pretty much the same

way. It seems to me that the people who have no rest requirement

are more likely to have these accidents. Has there been an effort

to give attention to that and what is the outcome, Mr. Hamberger?

Mr. HAMBERGER. Good morning, Congresswoman Johnson.

Thank you.

Indeed, there has been an effort, and I would ask the permission

of the Committee to insert for the record a compendium that we

are producing. We hoped to have it ready today, but it will be in
27

a couple of days. It lists a wide array of approaches that the industry has taken. My testimony mentions several of them, again, napping policies, checking for apnea sleep disorders, arranging for

longer periods of time off. The industry has moved in many carriers

to a 10 hour minimum time off after a tour of duty.

We are working on models, as Dr. Moore-Ede talked, both at the

FRA and individual companies in trying to assess where the risks

are and working with the unions, trying to figure out appropriate

approaches at the local crew district level as well.

Ms. JOHNSON. I apologize for not being here earlier. Is there

some type of historical document that determines the condition or

the hours after there is an accident?

Mr. HAMBERGER. The hours worked by each employee would be

maintained by the company, yes.

Ms. JOHNSON. Are the accidents at a higher rate when there are

people who have not rested?

Mr. HAMBERGER. I don’t have a specific answer for you on that.

I know that there are studies out there, some of which were indicate that and others which are inconclusive. So some studies would

indicate that a greater risk would be at 2:00 in the morning. Other

studies indicate that there is a higher risk factor at 9:00 in the

morning. But I will be glad to get you some data for that on the

record.

Ms. JOHNSON. When someone does have a sleep disorder and admits to it, what actions are taken?

Mr. HAMBERGER. Well, if they come forward, it is treated like

any other medical condition. They are offered treatment for it, and

if it cannot be corrected, it would end up being a cause for a disability.

Ms. JOHNSON. The contractor employees, there is hardly any

way, I guess, to determine how many hours they have been off

since they just come in as required.

Mr. HAMBERGER. The contractors, of course, are not our employees. So it is impossible for us to determine if they were at a different job site the day before. That is correct.

Ms. JOHNSON. Any comparison of accidents between the contract

employees and regular full time employees?

Mr. HAMBERGER. I am unaware of any. Let me check on that and

get back to you for the record.

Ms. JOHNSON. Anybody else in here aware of any difference?

Mr. PICKETT. We haven’t done a study on the difference in the

contracting. We have stated that there are times that the people

who are there because they are not under the hours of service, they

continually work.

The problem arises after they leave. Then our people are the

ones. The rail signalmen, then at that time, becomes the one who

is having to correct the problem, hopefully finds the problem if they

did leave something that wasn’t set properly before something

drastic happens. The problem is there. It is just something that we

have never run a study on it, no.

Ms. JOHNSON. Thank you.

Mr. STEM. Congresswoman Johnson, may I comment on that

also?

Ms. JOHNSON. Yes.
28

Mr. STEM. In answer to your previous question, one of the main

sources of data that applies to the industry today was an FRA

sponsored working group, the collision analysis working group. We

submitted a copy of this report with our testimony. That study, in

which labor, management, and the FRA participated equally,

shows that about 30 percent of main line collisions have a major

contributing factor of fatigue, and the main issue involved there is

not just work schedules, but it is lack of notification of a reporting

time.

What you are talking about is a group of people who are working

70 or 80 hours a week. They get off work at 10:00 in the morning

and have no clue what time they will be expected to report for work

again. It could be eight hours. It could be 28 hours. That is the

issue. That is the main issue.

Ms. JOHNSON. Thank you very much. My time is up.

Mr. HAMBERGER. If I may, Mr. Chairman, I am asking unanimous consent to put stuff in the record. DAR did not endorse the

report to which Mr. Stem referred, and we do have a critique of the

statistical analysis in there which I would ask be included in the

record as well.

Mr. LATOURETTE. We would be glad to receive it.

Ms. Schwartz, do you have any questions?

Ms. SCHWARTZ. Thank you. If I may, I appreciate the opportunity

to participate.

I am sorry, I did not hear the initial testimony but following up

on some of the questions, one of the reasons that I am here is because there was recently a rail accident in my District, a regional

rail accident. It just happened. So it will be months before we actually see the report, and the reason there is already reaction that

technology could have helped in preventing that accident. Again,

we don’t know exactly what happened. So I am not sure how that

conclusion has already been made.

My question really has to do with, my guess is that there would

be some combination of technology and the talents and training of

the rail personnel and their ability to function, both in response to

the technology and also their own alertness. Fatigue has been a big

issue that has been talked about a good bit.

Could you just speak to the training that personnel gets now in

preparing for their own fatigue, their own difficulty in managing

the time? Secondly, could you speak to the relationship between

the new technology and the training that personnel would get in

the use of new technology and how that would assist them in preventing accidents?

I don’t know if you are aware of the one that happened in my

District. It was a regional rail. There were injuries, fortunately no

deaths, but it was in a very suburban area where two trains actually hit each other. So it is obviously a concern. Fortunately, it

doesn’t happen too often, but when it does, it is a huge concern especially in sort of a neighborhood setting like that. The railway is

going through really a very local suburban area, and it was quite

distressing to many of my constituents that such a thing would

happen in this day and age.

Mr. HAMBERGER. If I could take a first shot at that, Congresswoman Schwartz, thank you.
29

With respect to the education, each of the AAR members has

very comprehensive fatigue training information, both for employees and their families. It is very important that they understand

the role that fatigue plays and the role that they play in combating

fatigue. Working with the unions, I believe we are putting together

a web site which will be available to each employee which will have

training and detailed information on what they should be looking

for and how they should be proceeding with their time off.

With respect to the technology, there is a meeting this afternoon,

working on some of the technology issues. There is a remote control

operating in the train yards for which there is a special training

proceeding that I don’t believe had anything to do with your accident.

The new technology that is being developed by the industry is

train control technology which would prohibit a train from exceeding its authority. What that means is in the case of a truck on a

highway, for example, it would not be allowed to run the red light.

So if the engineer did not begin to slow the train down before the

computer calculated that it would exceed its authority, that is, go

past the red light up the track, it will throw it into a penalty application, that is to say it will stop it before it goes past where it

should, and therefore would avoid the collisions that you are referring to, if I understand what may have happened up there.

Ms. SCHWARTZ. Mr. Stem, I don’t know if you want to add anything to that.

Mr. STEM. Yes, ma’am, I would like to have an opportunity.

The training that you are talking about is operational training.

Fatigue management training is virtually non-existent in the rail

industry.

The web site opportunity that Mr. Hamberger discussed in his

comments to you, I am not aware that our union or other unions

are willing to participate in that because it does not deal with the

core problem. The core problem is operational training. There are

a multitude of reasons behind an accident occurring, one of which

would be fatigue, but the initial level of training, the recurrent

training of the existing employees, the discipline that a well

trained employee exercises in the performance of his duties, all of

those are major issues.

As far as train control technology, the United Transportation

Union fully supports the development of that technology and, unfortunately, it is our opinion that without some Congressional

intervention with a major source of funding, we are decades away

from implementation of that technology in the industry.

Mr. TIMMONS. If I may, let me make a comment about your concerns about the accident in your District. I am interested primarily

in Class II and Class III railroads, small railroads and regional

railroads.

Let me make a distinction between the Class Is, the Class IIs

and the Class IIIs in terms of training and the fatigue issue. The

fatigue issue for the small railroads is not the same as it is for the

larger railroads. Our general area of operations is smaller, slower

trains, smaller consists, and what all that does is generates a very

consistent and predictable pattern of work day schedules. In other

words, when a small railroader goes to work, he knows what time
30

he is going to start generally and what time he is going to get off

the job, and he knows that day in and day out.

The predicament of hours of service that the Class Is have been

struggling with and that most of our discussion this morning has

been related to is not the same for the small railroads. So we don’t

run into the fatigue issue to the same degree that the big guys do.

I would also say that from a training standpoint, all of these railroad engineers go through a very, very extensive training program

and then must go through certification programs. They go through

physical recertification at the three year point. If they are not on

the job for 30 days, they must have a back to work physical. So

from a medical standpoint, although there are no good railroad

medical standards for railroad hours of service employees, there

are medical procedures that they go through to make sure they are

reasonably healthy when they come back on the job.

This issue of fatigue is very, very complex, as I am sure you are

aware, but for the small railroads, the predicament is just not the

same.

Ms. SCHWARTZ. I appreciate that. Again, we don’t have yet information about what caused this crash. So I don’t want in any way

to jump ahead here. There was some discussion in today’s paper in

Philadelphia that, in fact, the underfunding of the regional rail system in the Philadelphia area and the fact that there has been such

slow capital improvements, the new equipment. I am not talking

about new technologies now, just keeping up on the standard

equipment plays a role potentially as well. They talked about the

delays in getting the upgrades that are needed on the rails and on

the cars themselves and whether that has played a role. They are

questioning that. Obviously, we will know more as we see the details about this.

Certainly, I think on this Committee we have been concerned

about the lack of funding for the major rails, but there is the regional rail service that I know many of my constituents rely on

every day to get back and forth to work. As someone who would

like to encourage use of public transit and would like to see more

use of rail service, not making that kind of investment in equipment is a concern. We don’t know whether this, in fact, was not

about new technologies, not about fatigue but really just a breakdown of old equipment. So that is potentially a factor as well, that

I don’t want to dismiss.

Estimates to do some of the upgrades even on the cab signals

could be 8 to 10 years. I am just talking about the regional rail system in my District. So that is a really long time for us to be dealing

with virtually antiquated equipment, I believe. It is maybe a topic

for another given day, but it certainly has something to do with the

safety for our workers and our passengers on both regional and

major rail.

Thank you.

Mr. LATOURETTE. Thank you.

Mr. Tolman, do you have something you wanted to say?

Mr. TOLMAN. Yes, thank you, Mr. Chairman.

I would just like to comment on two things, training and fatigue.

You know there has been a lot of discussion, number one, about fatigue and whether we should change the hours of service. I think
31

we are putting the cart before the horse on this. I think you need

to look at the fatigue abatement issues that we can implement, and

one, limbo time, needs to be addressed. Years ago, when limbo time

was not in force, basically you could work 12 hours. You were relieved and brought to your resting place immediately. That is what

we need to go back to.

We need to go back to look at where there are opportunities

where employees can work five days on and two days off. We need

to provide employees the opportunity for employee empowerment.

If you are tired and you don’t feel as though you can go to work,

you can’t be held accountable. You can’t be held under the availability policy under the railroad industry. We need to address those

issues.

There are a million tools in the toolbox. We need to address those

tools first and then look at the hours of service. As the Doctor said,

we need to change the game.

I don’t think, with all due respect to my colleagues here, all of

us work with the NTSB on a major rail accident, and that one was

a regional. We didn’t work on that particular accident. However,

our concerns are your concerns, and the public’s concerns. Try to

find out what happened in the accident, address it, work together,

come to a conclusion, and correct it. However, sometimes the corporate profit gets before addressing some of the issues.

I don’t think the fatigue issue will be resolved unless Congress

gets involved in it personally.

As far as training is concerned, years ago, training programs

were superb. You had enough employees in the industry that you

could provide a prolonged amount of time for an individual to be

out there whether he is operating an engine or as a conductor or

as a trainman. I think that needs to be addressed. Training needs

to be constantly looked at, constantly observed. There should be

mandated oversight in training to make sure there are enough

qualified people in the industry as well as enough qualified people

to support people that need a little bit more training.

Thank you, Mr. Chairman.

Mr. LATOURETTE. Thank you very much, Mr. Tolman. As I indicated, we will have one more round of questions, and I don’t think

I will take five minutes.

One thing that I wanted to ask the folks from labor and also you,

Mr. Hamberger, is about lot of the collective bargaining agreements

in the past. If you look at Dr. Moore-Ede’s testimony, he has a lot

of different factors in his risk-based approach, but clearly hours of

service is just one thing to look at. There are things like noise and

vibration and weather conditions and everything else. A lot of collective bargaining agreements have mileage rather than hours of

service.

Could you all tell us why we went away from mileage in terms

of what the rail and labor agreed to and now concentrate so heavily

on Hours of Service? Could anybody share their thoughts with me?

Mr. Stem?

Mr. STEM. Mr. Chairman, I welcome the opportunity to offer an

answer to that question.

The mileage regulations that you discussed are still in the agreement. They have a collective bargaining agreement with their em-
32

ployees that says that each employee will be expected to work X

amount of miles per month. They have totally abused that. They

have effectively eliminated that and in fairness to the industry, the

employees themselves were complicit in that. To the point that

they have maximized their earnings, it was all about money.

As far as Congressional action is concerned, there are two minor

changes that the industry could make that would eliminate this debate. Number one, a 12 hour call giving a human being 12 hours

notice that I am expecting you—it is now 11:40 a.m.; you are on

duty at 11:40 p.m.—and then living by the law that says 12 hours

of service.

Now labor and Mr. Hamberger are all in agreement about that

solution, but we cannot implement it on the property without you.

We have tried this for 15 years ourselves. Unless you take strong

significant action, give FRA the authority and the resources to do

that, then we will be here next year and the year after that, talking about fatigue.

Mr. HAMBERGER. May I just say that I am unaware that I am

in agreement?

[Laughter.]

Mr. LATOURETTE. Before I give you the opportunity to express

your agreement, I just wanted to say to Mr. Stem, I do find when

Dr. Moore-Ede is talking about predictability and all the factors

that go into it, it does seem to me that, if I am correct and maybe

you can tell me how this crew calling system works, that people

have to wait by the phone and be ready when the call comes to go

within two hours. I don’t know how you can do risk management.

It is my understanding, right, that you need to stay by the phone

and if you get a call, you are off to work.

This is the only job I have ever had where I don’t know what the

schedule is on a day to day basis, and sometimes I get tired. I will

tell you that.

Is that correct? Is that how the crew calling thing works?

Mr. STEM. Yes, sir, that is exactly how it works, and I came

through that system before there was a cell phone, before there

was a pager. Thank the Lord I was able to keep my employment.

Today in times of technology when the industry comes before you

and testifies that we have a computer system that will allow us to

know where every one of our trains is instantaneously and control

the movement of that train, they still cannot give an employee who

they consider to be a safety-sensitive employee more than a two

hour notice, and it is worse than no notice. They are aggravating

the issue by the fact that they will tell that employee that we are

expecting you to go to work in 12 or 14 or 16 hours and most of

the time, a majority of the time, those lineups that they give the

employees are totally inaccurate.

So, without that 12 hour notice and without living up the hours

of service law by the elimination of limbo time, then there is no solution.

Mr. LATOURETTE. I am still going to get to you, Mr. Hamberger,

but I am glad you brought up the complicity element because I

thought it was instructive when Administrator Boardman was

here, and he was talking about his commercial driver’s license, and
33

I think he admitted to us that he drove when he wasn’t supposed

to drive, so he could maximize his earnings.

One of the things I hear from some of the younger railroaders

are that you have these mileage hogs that like to drive the long

distance trains and maximize their earnings. Nobody can fault

them for that, but perhaps if we went back to some of these other

things, we would do a little bit better.

Mr. Hamberger, would you want to express your agreement with

Mr. Stem or your disagreement?

Mr. HAMBERGER. I do not believe that we share his desire to

change the hours of service. What we are trying to do and what

most of our members have moved to is a 10 hour guaranteed rest

period after the employee leaves service to allow for an opportunity

for rest. We are trying to do what we can, using the technology,

using the internet to give as much notice as possible, to try to predict the first in, first out lineup, when the employee will need to

be back, looking at the lineup for the trains coming.

As I pointed out in my testimony, it is an inexact science. There

are lots of things that come into play, affecting the schedule, but

we are trying to move a scheduled railroad in many cases, so that

there is more predictability.

With respect to limbo time, we believe that the Supreme Court

had it right. When the employee is dead on the log, they are not

performing safety-critical functions at that point and their rest period does not begin until they return to the terminal, so that the

rest is not affected at that point. And so, we believe that the Supreme Court had it right.

Mr. LATOURETTE. I thank you.

Mr. Tolman or Mr. Pickett, do you want to say anything about

mileage before I yield to Ms. Johnson?

Mr. PICKETT. My only comment is on Mr. Hamberger talked

about technology, the technology of stopping a train. That technology has been there for many years. If that is what he is waiting

on, we can assure him that can be installed today. I mean we don’t

need a meeting this afternoon to find out if it is there.

The adequate work force is the biggest thing. Our system, our

setup, we are one of the non-operating railroad unions, and our

members are under the Hours of Service Act, and they are on call

24 hours a day, 7 days a week, especially if they are in maintenance. I mean you could get off at 4:00 in the afternoon and possibly go to bed at 11:00 at night, be called at 12:05, and you are

considered rested. You are considered rested for the next 12 to 16

hours, whichever one that railroad has implemented at that time.

We feel that the 12 hour law needs to be strictly enforced, that

it is 12 hours and that is what it should be.

Then on the subject of dark territory that was brought up earlier,

one of the things is there is not enough there for the railroads to

put in a signal system. There is no question that the only purpose

for the signal system is for safety. When you can run trains at 49

miles per hour in dark territory, they are not going to put in a signal system. They are willing to take that chance of running that

train with a switch that is thrown in the wrong direction and no

one knowing it. You get on a train running at 49 miles per hour
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and try to stop if a switch is aligned improperly, it is not possible.

You can’t do it.

So there are solutions out there for railroads who are committed

to really looking at it.

Mr. LATOURETTE. Thank you.

Mr. Tolman, the question was on collective bargaining agreements and mileage as opposed to service. Is there any thought you

have?

Mr. TOLMAN. Yes, thank you, Mr. Chairman.

The collective bargaining agreements first were changed when it

was a 100 mile a day rule, and that was changed to 130 miles. It

just simply comes down to productivity. The railroads thought that

they could get more out of the crews if they allowed them to work

under the hours of services versus the mileage component.

There is also one issue regarding that which is if a crew is outlawed after 12 hours, they are not necessarily paid while they are

under limbo time, and that is one of the arguments that the carriers always throw at us. In some of the pools, unless you work beyond the mileage component which still comes into play on the National Freight Agreement, then you won’t be paid until you get to

your final resting point.

My colleague, Mr. Hamberger, mentioned about the limbo time,

and I need to go back to that again because it is a little misleading

to say that safety is not diminished because crews are not performing service during the limbo time. The unfortunate thing is, as the

good doctor pointed out, it is very disruptive to the human circadian rhythm if you constantly are working 12 hours and then are

in limbo time for an extended amount of time. It is not just that

they are not performing service. In fact, they are performing service. They do have to be alert. They are under the operating rules

as I stated. I don’t mean to get off the point here.

Thank you, Mr. Chairman.

Mr. LATOURETTE. I thank you.

Mr. Hamberger?

Mr. HAMBERGER. I neglected to answer your question actually because I was so thrown off by agreeing with Mr. Stem.

When you were asking about mileage and complicity, Administrator Boardman mentioned and there is a railroad that did offer

its employees a guaranteed 10 hour rest period after they left service, but that had to be agreed to. It had to be voted upon crew district by crew district, and it was agreed in many crew districts to

accept that 10 hours off at the home terminal, but they did not

want to have 10 hours off at an away terminal, so that they could

take an earlier train to get back home irrespective of the impact

that may or may not have had on their fatigue. It was impossible,

under the collective bargaining agreement, for the railroad to impose that.

With respect to mileage in a crew district, it is my understanding

that over the years, the mileage is both a minimum and a maximum and has been arrived at, as Mr. Stem indicated, in negotiations with the local union leadership. And so that is an agreement

that once it is reached, it has to be negotiated again to change.

Mr. LATOURETTE. Thank you very much.

Ms. Johnson tells me she doesn’t have any more questions.
35

Ms. Schwartz doesn’t have any more questions

Well, then I want to thank you all for coming and answering our

questions today. Mr. Hamberger, thank you for giving me the compliment about where we seated you, but actually how that came

about is the last time Mr. Stem was here, he had so many important things to say that his testimony took about 20 minutes. I

thought if I put you next to him, maybe we could keep you both

to about five, and we did that today.

[Laughter.]

Mr. LATOURETTE. So I thank you very much.

There being no further business, we are adjourned.

[Whereupon, at 11:49 a.m., the subcommittee was adjourned.]
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Æ